Carl Levin – Floor Statements

Senate Floor·November 17, 2011·p. S7638-S7678

National Defense Authorization Act For Fiscal Year 2012

Mr. President, on behalf of the Senate Armed Services Committee, I am pleased to bring S. 1867, the National Defense Authorization Act for fiscal year 2012, to the Senate floor. The Armed Services Committee approved the bill by a unanimous vote of 26 to 0. This is the 50th consecutive year that our committee has reported a defense authorization act. Every previous bill has been enacted into law.

I would like to thank all of the members and the staff of the Senate Armed Services Committee for the commitment they have shown to the best interests of our men and women in uniform as we have developed this legislation. Every year, we take on tough issues, and we work through them on a bipartisan basis consistent with the traditions of our committee. I particularly thank Senator McCain, our ranking minority member, for his strong support throughout the process. The unanimous committee vote in favor of this legislation would not have been possible without his cooperation and support.

We were delayed in getting this year's bill to the Senate floor by two issues that have arisen since the time the Armed Services Committee approved the first version of this bill, S. 1253, in late June.

First, Congress enacted the Budget Control Act of 2011, which mandated deep reductions in discretionary spending, including defense spending. The initial bill reported by the Armed Services Committee would have cut the President's budget request for national defense programs by more than $6 billion. The Budget Control Act, which was adopted after our initial bill was reported, requires an additional $21 billion in reductions.

Second, the administration and others expressed misgivings about the detainee provisions in the initial bill, although the provisions in our initial bill represented a bipartisan compromise that was approved by the committee on a 25-to-1 vote. Many of these concerns were based on misinterpretations of the language in that bill; nonetheless, we have worked hard to address these concerns.

First, relative to the additional $21 billion in budget cuts, we consulted closely with the Department of Defense before identifying these cuts. We believe the reductions we decided upon can be accomplished without an adverse impact on our troops or their vital mission, and without significant increase in risks to our national security.

The committee report which accompanied the initial bill, Senate Report 112-26, did not address these cuts but is otherwise applicable to this bill as well. So the new cuts are not addressed in that Senate report because these new reductions came after that Senate report was made.

For this reason, I ask unanimous consent that a summary of the cuts be printed in the Record immediately following my statement.

Second, the new bill would modify the detainee provisions to address concerns and misconceptions about the provisions in our initial bill. In particular, the new bill first modifies section 1031 of the bill, as requested by the administration, to assure that the provision that provides a statutory basis for the detention of individuals captured in the course of hostilities conducted pursuant to the 2001 authorization for use of military force, the AUMF, to make sure that those provisions and that statutory basis are consistent with the existing authority that has been upheld in the courts and neither limits nor expands the scope of the activities authorized by the AUMF.

It also modifies sections 1033 and 1034 of the bill, as requested by the administration, to impose 1-year restrictions rather than permanent limitations on the transfer of Gitmo detainees to foreign countries and on the use of Department of Defense funds to build facilities in the United States to house detainees who are currently at Gitmo.

We were unable to agree to the administration's proposal to strike section 1032, the provision that requires military detention of certain al-Qaida terrorists subject to a national security waiver. We did, however, adopt a number of changes to the provision. In particular, we modified the provision so that it clarifies that the President gets to decide who makes the determinations in coverage, how they are made and when they are made, ensuring that executive branch officials will have flexibility to keep any covered detainee in civilian custody or to transfer any covered detainee for civilian trial at any time.

Second, we clarify that there is no interruption of ongoing surveillance and intelligence-gathering activities or of ongoing law enforcement interrogation sessions. There have been misstatements, misimpressions, and misinterpretations of the provisions of our bill relative to those issues. We clarify them to make sure it is clearly understood by this body and the American people that--repeating, it is the executive branch, it is determined by the President, the people he appoints who will make determinations of coverage, how they are made, when they are made, so that it ensures the flexibility that the executive branch wants to keep any covered detainee in civilian custody or to transfer any covered detainee for civilian trial at any time.

It has been suggested that ongoing surveillance and intelligence- gathering activities by law enforcement people would be interrupted, or that their interrogation might be interrupted. It is very explicitly clear in this bill that there is no such interruption, there is no such interrogation session interruption or surveillance interruption or intelligence-gathering activities interruption. The process to make sure that doesn't happen is in the President's hands.

The administration officials reviewed the draft language for this provision the day before our markup and recommended additional changes. We were able to accommodate those recommendations, except for the administration request that the provision apply only to detainees who are captured overseas. There is a good reason for that. But even here, the difference is relatively modest, because the provision already excludes all U.S. citizens. It also excludes all lawful residents of the United States, except to the extent permitted by the Constitution. The only covered persons left are those who are illegally in this country or who arrive as tourists or on some other short-term basis, and that is a small remaining category, but an important one, because it includes the terrorists who clandestinely arrive in the United States with the objective of attacking military or other targets here.

Contrary to some statements I have seen in the press, the detainee provisions in our bill do not include new authority for the permanent detention of suspected terrorists. Rather, the bill uses language provided by the administration to codify existing authority that was adopted by both the Bush administration and the Obama administration and that has been upheld in the Federal courts.

Moreover, the bill requires for the first time that any detainee who will be held in long-term military custody anywhere in the world would have access to a process that includes a military judge and a military lawyer.

I want to repeat that. For the first time, this bill provides that, in determining a detainee's status, the detainee will have access to a lawyer and to a military judge. That is not the case now. Nor would the bill preclude the trial of terrorists in civilian courts, as some have erroneously asserted. As a matter of fact, it is the contrary. The bill expressly authorizes the transfer of any military detainee for trial in the civilian courts at any time. An amendment that eliminated that authority was defeated in the Armed Services Committee on a bipartisan 19-to-7 vote during the markup of the initial bill.

The bill would not require the interruption of ongoing surveillance operations or ongoing law enforcement interrogations of suspected terrorists, as some have incorrectly asserted. The opposite is the case, as I have said, because we have included language in the bill that specifically precludes those possibilities.

The bill also provides that the President, not Congress, will decide who makes determinations of whether a detained person is in the narrow class covered, and the President will decide how and when these determinations are made.

The bill would not require that al-Qaida terrorists who are captured on American soil be transferred to military custody, because it includes an easily effectuated national security waiver. With this waiver authority, executive branch officials may keep any detainee in civilian custody or move any detainee to civilian custody if they choose to do so.

That provision provides the executive branch flexibility to choose the most appropriate course of action for al-Qaida terrorists whom we capture, including detention in civilian custody. That was the intent of the original language, and it has been clarified in the bill before us. I recognize that the administration remains unsatisfied with this provision, but we have gone a long way to address their concerns.

What about the dollar provisions in this bill? The bill we bring to the floor today would authorize $662 billion for national defense programs--$27 billion less than the President's budget request, and $43 billion less than the amount appropriated for fiscal year 2011. I am pleased we were able to find these savings without reducing our strong commitment to the men and women of our Armed Forces and their families, and without undermining their ability to accomplish their important national security missions. In this time of fiscal problems for our Nation, every budget must be closely examined to identify savings, and the Department of Defense budget is no exception.

This bill contains many important provisions that will improve the quality of life of our men and women in uniform, provide needed support and assistance to our troops on the battlefield, and make the investments we need to meet the challenges of the 21st century, and provide for needed reforms in the management of the Department of Defense.

First and foremost, the bill before us continues the increases in compensation and quality of life our service men and women and their families deserve as they face the hardships imposed by continuing military operations around the world.

For example, the bill would authorize a 1.6-percent across-the-board pay raise for all uniformed military personnel and extend over 30 types of bonuses and special pays aimed at encouraging enlistment, reenlistment, and continued service by active-duty and Reserve military personnel.

The bill provides that annual increases in TRICARE Prime enrollment fees in future years will not exceed the percentage increase in retired pay. The bill authorizes $30 million in supplemental impact aid and related education programs for the children of servicemembers. The bill authorizes service Secretaries to carry out programs to provide servicemembers with job training and employment skills training to help prepare them for the transition to private sector employment. It authorizes the service Secretaries to waive maximum age limitations to enable certain highly qualified enlisted members who served in Iraq or Afghanistan to enter the military service academies.

The bill also includes important funding and authorities needed to provide our troops the equipment and support they will continue to need as long as they remain on the battlefield in Iraq and Afghanistan.

For example, the bill fully funds the President's request for $3.2 billion for the development, testing, production, and sustainment of the MRAP vehicles and new MRAP all-terrain vehicles, which are needed to protect our troops against improvised explosive devices.

The bill authorizes $11.2 billion to train and equip the Afghan National Army and the Afghan police, the funding level recommended by the commander of U.S. Central Command after consultation with the commander of U.S. and coalition forces in Afghanistan. The purpose here is to grow the capability of those Afghan security forces to prepare them to take over increased responsibility for Afghanistan's security as we begin reductions in U.S. forces.

The bill provides $400 million for the Commanders' Emergency Response Program in Afghanistan and $400 million for the Afghanistan Infrastructure Fund to support projects that enhance the counterinsurgency campaign.

The bill extends the authority of the Department of Defense to conduct a program for the reintegration of former insurgent fighters into Afghan society.

The bill establishes a new Joint Urgent Operational Needs Fund to allow the Department to rapidly field new systems in response to urgent operational needs identified on the battlefield, and it provides the Central Command--CENTCOM--commander new

contracting authorities needed to stop the flow of money through U.S. contracts to persons who are actively opposing U.S. forces in Afghanistan.

The bill also contains a number of provisions that will help improve the management of the Department of Defense and other Federal agencies. For example, the bill would address shortcomings in the Department of Defense's management of operating and support costs, which are estimated to constitute 70 percent of the lifecycle costs of major weapons systems.

The bill freezes DOD spending on contract services at fiscal year 2010 levels and requires the Department of Defense to take a number of commonsense steps to achieve savings in this area.

The bill adds $32 million for the Department of Defense's corrosion prevention and control and requires implementation of the recommendations of a recently congressionally mandated report on corrosion control on the F-22 and F-35 programs.

The bill improves the management of defense business systems by strengthening the authority of the Department of Defense's chief management officers in the investment review process and ensures that this process covers existing systems as well as new ones.

The bill also adds $43 million to enable the Department of Defense IG to provide more effective oversight and to help identify waste, fraud, and abuse in defense programs, especially in the area of procurement.

In light of the budget constraints we face this year, the committee worked hard to keep funding increases of any kind to a minimum. We added the following items: $66 million for unfunded requirements identified by military leaders, $90 million for investments in programs such as the DOD IG and corrosion control that have high payback rates, $63 million for critical investments in intelligence and cyber security improvements, $497 million for increased funding needed to ensure the efficient execution of ongoing Department of Defense programs, and $270 million for a handful of broad-based competitive programs needed to help us keep our leadership in military technology.

I continue to believe it would be wrong for us to give up the power of the purse given Congress in the Constitution. I don't believe the executive branch has a monopoly on good ideas. In fact, I think we are more often receptive to creative new ideas that can lead to advances in the national defense than the defense bureaucracy is. Nonetheless, there are no earmarks in this bill.

Finally, I would like to discuss four major issues in the bill that were the subject of extended debate in the course of our markup this year.

First, this bill includes provisions that would require sound planning and justification before we spend more money for Marine Corps realignment from Okinawa to Guam and on tour normalization in Korea. These provisions follow detailed oversight that Senators Webb, McCain, and I have conducted over the past years. In particular, the bill prohibits the expenditure of funds for Marine Corps realignment from Okinawa to Guam until we receive an updated force laydown and a master plan detailing construction costs and schedule of all projects necessary to carry it out.

The bill requires the Department of Defense to study moving Marine Corps aviation assets currently at Marine Corps Air Station Futenma to Kadena Air Base, and the feasibility of relocating some or all Air Force assets currently at Kadena Air Base, rather than building a replacement facility at Camp Schwab that is unrealistic and unaffordable.

The bill prohibits the obligation of funds for tour normalization on the Korean Peninsula until the Secretary of the Army provides Congress with a master plan, including all costs and schedule projections to complete the program, and the Director of Cost Assessment and Program Evaluation performs an analysis of alternatives justifying the operational need.

The Department of Defense current plans for Okinawa, Guam, and Korea were developed years ago in a different fiscal environment and are projected to cost billions of dollars more than anticipated. At a time of tight budgets, we owe it to the Department of Defense and to the taxpayers to insist on a close examination and strong justification before we proceed.

Second, the committee adopted an amendment to strike all funding for the Medium Extended Air Defense System, MEADS. In February, the Department of Defense announced that after investing more than $1.5 billion in the MEADS Program, the program remained a high risk and the additional funding needed to field the system was unaffordable. However, the Department declined to terminate the program because the memorandum of understanding with our allies on which the program is based commits us to continued funding even if we withdraw from the program. For this reason, the Department requested over $400 million in funding for the continued development of a system that it has no intention of fielding. The committee amendment eliminates this funding. We recognize that under the memorandum of understanding, our decision not to fund this program could require the United States to pay for a program in which it is no longer a participant. However, the committee concluded that the course proposed by the Department is untenable and that the Department should explore all options with our allies before continuing to fund a program which we no longer need.

Third, our committee members share both a deep concern about the rising cost of the Joint Strike Fighter Program, on which we are now projected to spend more than $1 trillion--which includes operation and sustainment costs--and a strong belief that the Department of Defense must take stronger action to contain these costs.

The committee unanimously adopted an amendment requiring that the next JSF contract be entered on a fixed-price basis and that the contractor assume full responsibility for all costs above the target cost specified in the contract. This amendment puts the contractor on notice that we have lost patience with continued overruns on the program and we are determined to protect the taxpayer from further cost increases, without unnecessarily jeopardizing the heavy investment we have already made in the program by prematurely terminating the program. Senator McCain has taken, really, the active lead in this effort, and it is a very critically important effort for our taxpayers.

Finally, the bill includes a bipartisan compromise regarding detainee matters--as I have made reference to before--that would address a series of important issues that relate to detainees. It is worth summarizing the detainee-related provisions in the bill.

First, the bipartisan compromise would codify the military's existing detention authority, as stated by both the administration of President Bush and the administration of President Obama and approved in the courts.

Second, the bill would require military detention for a core group of detainees who are part of al-Qaida--or an associated force that acts in coordination with or pursuant to the direction of al-Qaida--and who participate in planning or carrying out attacks or attempted attacks against the United States or its coalition partners. That is a defined core group of detainees.

This provision includes a national security waiver and includes language expressly authorizing the transfer of detainees for trial in civilian courts. It continues the conditions on the transfer of Gitmo detainees to foreign countries, including certification requirements to be met before a transfer may take place. Contrary to what some have said, this provision does not prohibit transfers from Gitmo. In fact, it is less restrictive of such transfers than legislation passed in the last Congress and signed by the President. In particular, this year's provision includes a national security waiver that is designed to address concerns expressed by the Secretary of Defense about a similar restriction which was included in last year's authorization and appropriations act.

The bill contains the same limitation on the use of Department of Defense funds to build facilities in the United States to house Gitmo detainees that has been included in past authorization and appropriations acts. This provision applies only to Department of Defense funds. It does not prohibit the use of Department of Justice funds that might be needed in connection with a

transfer for the purpose of a criminal trial, and it does not prohibit the closure of Gitmo.

The provision requires the Department of Defense to issue procedures addressing ambiguities in the review process established for Gitmo detainees. The provision clarifies but does not overturn the Executive order issued by the President earlier this year.

The provisions require the Department of Defense to establish procedures for determining the status of detainees, including, as I indicated before, for the first time, a military judge and a military lawyer for a detainee who will be held in long-term military custody.

The bill clarifies procedures for guilty pleas in trials by military commission. This provision would require a separate trial on the penalty, with a unanimous verdict needed to impose the death penalty. So while a death penalty could be imposed by a commission, the detainee would have no assurance of that result, for those detainees who want that assurance so they can make themselves martyrs.

As I have already indicated, these provisions have been substantially modified as a result of extensive discussion with administration officials. We did not make every change requested by the administration, although we adopted many of them--probably most of them--and made additional changes to address specific concerns raised by administration officials.

Mr. President, as we are here today, we have over 96,000 U.S. soldiers, sailors, airmen, and marines on the ground in Afghanistan, with 23,000 more remaining in Iraq. While there are issues on which we may disagree, we all know we must provide our troops with the support they need as long as they remain in harm's way.

Senate action on the national defense authorization bill for fiscal year 2012 will improve the quality of life of our men and women in uniform. It will give them the tools they need to remain the most effective fighting force in the world. Most important of all, it will send an important message that we as a nation stand behind them and appreciate their service.

We look forward to working with our colleagues to promptly pass this important legislation. And as I yield the floor, I again want to thank Senator McCain and all the members of our committee for their hard work on this bill, as well as our staffs for their extraordinary capability. But I want to thank personally Senator McCain for everything he has done to make it possible for us to get to the floor at this time.

Exhibit 1

Summary of $21 Billion in Additional Cuts Resulting From Second Markup

of National Defense Authorization Act for Fiscal Year 2012

Airland Subcommittee

Army Programs: The bill would cut an additional $2.8

billion in Army Procurement and $800 million in RDTE. This

includes over $1 billion in reductions proposed by the Army,

and over $2 billion for programs that had unjustified or

excessive growth, misaligned schedules, fact of life changes

including terminations, or other management challenges. These

recommended reductions include $518.7 million for the Joint

Tactical Radio System, $224.0 million for Warfighter

Information Network-Tactical, $172.5 million for Ground

Soldier System-Nett Warrior, and $157.3 for HMMWV

recapitalization programs. The bill would also transfer over

$600 million from the base request to the overseas

contingency operations accounts for capabilities directly or

closely related with military operations in Iraq and

Afghanistan such as increased ISR, mine protected vehicles,

armoring kits, and base defense and force protection systems.

Navy Programs: The bill would cut an additional $724.5

million in Navy Procurement and $55.9 million in RDTE. This

includes $532.1 million for programs that had unjustified or

excessive growth, misaligned schedules, fact of life changes

including terminations, or other management challenges. These

recommended reductions include $163.5 million for the E-2D

Advanced Hawkeye, $159.9 million for spares and repair parts,

$69.9 million for AMRAAM, and $99.7 million for the F/A-18E/F

Hornet.

Air Force Programs: The bill would cut an additional $910.2

million in Air Force Procurement and $596.0 million in RDTE

for programs that had unjustified or excessive growth,

misaligned schedules, fact of life changes including

terminations, or other management challenges. These

recommended reductions include $145 million for the A-10,

$120 million for AFNET, $103 million for initial spares and

repair parts, and $101 million for the AMRAAM. The bill would

also transfer $87.2 million from the base request to the

overseas contingency operations accounts for activities

directly or closely related with military operations in Iraq

and Afghanistan such as war consumables.

Emerging Threats and Capabilities Subcommittee

Program Delays and Under-Execution: The bill would reduce

funding for science and technology and information technology

by $216 million due to excessive program growth and program

delays; reduce funding for U.S. Special Operations Command by

$135 million due to unjustified growth and items already

funded in recent reprogramming actions; reduce funding for

counter-drug programs by $128 million based on a DOD

assessment that this funding is excess to need; reduce

funding for counter-proliferation programs by $43 million due

to slow execution; reduce funding for the Joint IED Defeat

Organization (JIEDDO) by $85 million based on unjustified

program growth; and reduce funding for the Chemical and

Biological Defense Program by $40 million due to under-

execution and program delays.

Personnel Subcommittee

Military Personnel Funding: The bill would reduce funding

for military personnel by $100.6 million, by taking an

additional $42.6 million in unobligated balances and using

updated CBO estimates for savings attributable to a change in

the calculation of hostile fire pay.

Defense Health Care: The bill includes a $330.0 million cut

to private sector care under the Defense Health Program,

based on an assessment of historical under execution rates

for private sector care.

Military Spouse Career Advancement Accounts (MyCAA): The

bill reduces funding for the program by $120 million. This

reduction was offered by the Department of Defense because

although the President's budget request included $190 million

for the program, DOD has indicated that as a result of its

redesign of the MyCAA program, only $70 million is needed for

execution in fiscal year 2012.

Readiness Subcommittee

Military Construction: The bill would cut an additional

$527 million in military construction funding. This includes

three domestic projects valued at $83.1 million, the largest

of which the Technology Center's Third Floor Fit Out, valued

at $54.6 million does not need funding because NSA has

indicated that it has sufficient unobligated balances to

complete the project. The balance of the cuts are for: (1)

overseas military construction projects in areas that are

subject to an ongoing strategic review (including five

projects in EUCOM valued at $179.6 million); (2) planning and

design funds rendered unnecessary due to previous cuts; and

(3) programs that are not fully budgeted for in the FYDP.

Operation and Maintenance: The bill would cut an

additional $3.1 billion in operation and maintenance funding.

This includes $1.5 billion in reductions proposed by the

military services; $315 million for ammunition account cuts

based on inefficient ammunition management and

recommendations from the military services; $294 million for

excess growth in service contractors and civilian employees;

and $258 million in the OCO accounts for a transfer of Coast

Guard support to the Department of Homeland Security.

Transfers to Overseas Contingency Operations Funding: The

bill would transfer to OCO accounts $4.9 billion of operation

and maintenance funding for activities closely associated

with military operations in Iraq and Afghanistan, including

MRAP vehicle sustainment, body armor sustainment, overseas

security guards, theater security packages, depot maintenance

and readiness funding in support of combat operations, and

CENTCOM headquarters public affairs. Most of these activities

have previously been funded from OCO accounts.

Seapower Subcommittee

Navy Programs: The bill would cut an additional $234.4

million in Navy Procurement and $496.7 million in RDTE for

programs that had unjustified or excessive growth, misaligned

schedules, fact of life changes including terminations and a

Navy-requested realignment of the VXX Presidential Helicopter

program, or other management challenges. The recommended

reductions include $120 million for JTRS, $70 million for the

Future Unmanned Carrier-Based Strike System, $63 million for

ship contract design and live fire T&E, and $58 million for

the Standard Missile.

Marine Corps Programs: The bill would make additional

reductions of $101.0 million in Procurement, Marine Corps due

to slow program execution or contract award delays.

Air Force Programs: The bill would cut an additional $108.6

million in Air Force Procurement for unnecessary post

production funding for the C-17 program and $45.9 million in

RDTE for programs that had contract delays or where the

programs were being re-phased.

Strategic Subcommittee

Space: The bill would reduce funding for space programs by

$233 million due to slow execution in the development of the

Family of Advanced Line of Sight Terminals (FAB-T) used in

conjunction with the Advanced Extremely High Frequency (AEHF)

satellite system; by $300 million by dropping authorization

for the long term lease of a commercial satellite by the

Defense Information

Systems Agency due to a lack of an analysis of alternatives;

and by $105 million in connection with delays in contract

awards associated with GPS systems under development.

Department of Energy: The bill would reduce funding for

environmental cleanup at former atomic weapons production

sites by $356 million due to slow program execution; reduce

the NNSA nonproliferation program by $168 million due to cost

overruns for a pit disassembly facility to produce mixed

oxide fuel, which is now developing a new program base line;

and for NNSA program management by $45 million due to an

excessive rate of growth.

Missile Defense: The bill would reduce funding by $55

million for the procurement of Standard Missile-3 Block IB

missiles due to a test failure which requires an

investigation, correction, and retest, delaying production

(an additional $260 million of funding would be moved from

procurement to the R&D account to facilitate the fixes); and

reduce funding for the Terminal High Altitude Area Defense

(THAAD) missile defense system by $120 million to reflect the

reality of slower production rates due to delays in the

program. A few joint or Army programs would be reduced by $47

million for under-execution.

Intelligence Funding: The bill includes a number of

reductions to the Military Intelligence Program because of

late contract awards, slow execution rates, program delays,

and changes in programs since mark-up; it also includes

reduced funding for the National Intelligence Program

reflecting cuts agreed to by the two intelligence committees.

General Provisions

Troop Reductions in Afghanistan: The bill would reduce OCO

funding by $5.0 billion due to the President's decision to

withdraw the 33,000 U.S. surge force from Afghanistan, with

10,000 to be withdrawn by December 2011 and the remaining

23,000 to be withdrawn by next summer. The Department of

Defense has informed us that the $5.0 billion is no longer

needed as a result of the planned Afghanistan troop

reduction.

Afghanistan Security Forces Fund: The bill would reduce

funding for the Afghanistan Security Forces Fund (ASFF) to

$11.2 billion, a $1.6 billion reduction from the President's

request. The Commander, U.S. Central Command, has determined

that FY2012 ASFF funding can be reduced by $1.6 billion

because of efficiencies and cost avoidances achieved by the

NATO Training Mission in Afghanistan in its plans for

building and sustaining the Afghan Army and Police.

Amendment No. 1092

(Purpose: To bolster the detection and avoidance of counterfeit

electronic parts)

Mr. Levin. Mr. President, pursuant to a unanimous consent request which was previously entered into on this matter, I send to the desk an amendment on behalf of myself and Senator McCain.

I ask unanimous consent that further reading of the amendment be dispensed with.

Mr. President, I call for regular order with respect to the amendment.

Is it now pending first in line?

I thank the Presiding Officer, and I want to make one quick comment about this amendment.

This is a bipartisan amendment that addresses the massive issue created by counterfeit parts getting into the defense supply system. It is something our staffs have investigated heavily.

Senator McCain and I are introducing this bipartisan amendment. We hope it has strong support in this Senate. It will address a critically important issue we have now seen in the defense supply system with millions of counterfeit parts--mainly from China--getting into our defense system and threatening the security of our troops, the effectiveness of their mission, and costing the taxpayers a heck of a lot of money.

I agree with my friend from Arizona. We literally worked months to get to the first reduction which was in our original bill. Then when the Congress adopted the Deficit Reduction Act, which required additional reductions, these are very difficult decisions to make because they in many cases will increase risks which we don't want to increase but nonetheless have got to accept some additional degree of risk on some of our programs in order to do the fiscally responsible thing. I agree with my friend.

These cuts that would result from sequestration are massive not just in defense but also in nondefense discretionary areas. The purpose of that threat is to hopefully prevent it from taking place, as with any other kind of a sword of Damocles held over people's heads--our heads--that if we don't reach some kind of an agreement with our special committee, the group of 12 that is working so hard to come up with a reduction that will meet the requirements of the bill, we would then have a sequestration, across-the-board cuts, which are not the rational way to budget, are massive, Draconian--to use the word which the Senator from Arizona quoted. And that is true in both defense and nondefense. But, again, the purpose of having that sequestration process in place is, hopefully, an incentive so that it doesn't take place.

That is always our hope. It doesn't work out the way we wish frequently, but it is always our hope that the way it should work--at least theoretically--around here is that should be what the appropriators do.

That has not worked out that way in I don't know how many recent years. The Senator and I have had some discussions about that. When I first got here, many years ago, that was an issue which had not been resolved. But I think what the Senator sets out is the hope that the appropriators would look at our authorizations and follow our authorizations.

Let me thank my friend from Arizona for his great work on this bill and the way in which he and our members, our brothers and sisters on the committee, including the Presiding Officer, worked so well together on a bipartisan basis and the way our staffs worked together. We are now in a position where we can consider amendments, as the Senator from Arizona said, pending the receipt of amendments for our consideration.

I yield the floor.

Madam President, I thank the Senator from Arizona. I very briefly described this amendment before, but I will take a few minutes now to describe it in some greater length because it is very significant. It is going to totally change the way we buy replacement parts for our weapons systems to avoid the absurdity that we have so many counterfeit parts, including used parts, where we need new parts on these weapons systems.

The investigative staff of our committee looked at just a slice of the Defense chain for getting replacement parts. In that one slice of that supply chain, they identified 1,800 examples of where counterfeit parts were in our weapons systems. There were 1,800 different examples, but they involve millions of parts.

What happens here is that these used computers that originate from China, which are called e-waste, are sent back to China where they are pulled apart. The electronic parts are then washed, frequently in a stream--and there are pictures of these parts being washed in streams-- dried out in the open, and then they go mainly to one place in China, Shantou. The surfaces of these parts are then sanded down, new surfaces are put on them, and a number is placed on them to make them look like new parts. Then, those parts, through various ways, get into the supply chain. That is what we have to stop.

This is dangerous for our troops. It jeopardizes their missions. We believe we are losing approximately 11,000 American jobs that would be making these parts if they weren't counterfeited overseas. That is just one estimate by the Semiconductor Industry Association. Our semiconductor manufacturers suffer about $7.5 billion in lost revenue. So there is a safety issue and a mission threat issue here, first and foremost, but this is also an unnecessary and unfair blow to the American economy and to American jobs.

This is what this amendment does. We are requiring the Secretary of Homeland Security to establish a program of enhanced inspection of electronic parts imported from any country that is determined by the Secretary of Defense to be a significant source of counterfeit parts in the DOD supply chain.

This amendment requires the Department of Defense and its suppliers to purchase electronic parts from original equipment manufacturers and their authorized dealers, or from trusted suppliers who meet established standards for detecting and avoiding counterfeit parts. It establishes requirements for notification, inspection, testing, and authentication of electronic parts that are not available from such suppliers.

It requires the Department of Defense and DOD contractors who become aware of counterfeit parts in the supply chain to provide written notification to the Department of Defense inspector general, the contracting officer, and the Government-Industry Data Exchange Program--GIDEP--or a similar program designated by the Secretary of Defense.

The amendment would authorize Customs to share information with original component manufacturers from electronic parts inspected at the border to the extent needed to determine whether an item is a counterfeit.

It requires large Department of Defense contractors to establish systems for detecting and avoiding counterfeit parts in their supply chains, and it authorizes the reduction of contract payments to contractors who fail to develop adequate systems.

The amendment requires the Department of Defense to adopt policies and procedures for detecting and avoiding counterfeit parts in its own direct purchases, and for assessing and acting upon reports of counterfeit parts from Department of Defense officials and DOD contractors.

The amendment authorizes the suspension and debarment of contractors who repeatedly fail to detect and avoid counterfeit parts or otherwise fail to exercise due diligence in the detection and avoidance of counterfeit parts.

The amendment also includes a bill Senator Whitehouse introduced that was passed out of the Judiciary Committee to toughen criminal sentences for counterfeiting military goods or services.

Finally, the amendment requires the Department of Defense to define the term ``counterfeit part'' which is a critical and long overdue step toward getting a handle on the problem.

We also make it clear that it is the supplier of the counterfeit part who is going to pay for its replacement, and not the taxpayers of the United States.

This amendment touches the jurisdiction of two or three other committees, so we have sent this amendment to the other committees to try to clear this amendment. The Judiciary Committee is one, and I think Homeland Security is another, and I believe the Finance Committee is the third. We are hoping we can get prompt, positive response, but obviously we want to make sure those other committees are consulted and that they concur. If not, we would have to then make changes in the amendment, probably, in order to accommodate what those concerns are. But there are some jurisdictional issues here which we are currently working out.

I had an opportunity this morning, with Senator McCain, to talk to Senator Leahy, who was before our committee introducing a nominee, to alert him to the fact that we had this amendment which touched on the jurisdiction of his committee. I hope by now the language of the amendment has been shared with the staffs of those three committees-- and I think I have them all--but we intend to do exactly that.

Surely.

Well, we do need to consult with those committees. That is underway. I am hopeful the committees and their leaders will take a prompt look at this and see if there is any problem with the language from the perspective of their committees.

That is correct.

Mr. President, first, let me thank the Senator from New Hampshire for not only her comments about the committee work and myself and Senator McCain personally, but I want to tell her, and tell anyone within the sound of my voice, what a valuable member of our committee she is. She is someone who is there all the time, and I very much value the input she gives to us because of her regular presence at our hearings and our meetings. So I thank her for that as well as her comments.

I also thank her for this amendment. It is a good amendment. I understand from my staff, and from what the Senator said as well, there was a hearing held specifically on this subject, and that Senator Reed, as chairman, made a commitment to hold that hearing, as I understand it. He is a cosponsor of the amendment of Senator Ayotte. As far as I can see, it is a good amendment, a sound amendment, and it does what Senator McCain said, as well as what the Senator from New Hampshire has said. It avoids spending money on something we can't afford to spend money on.

I don't know of any objection on this side, and I support the amendment.

I don't know of an objection on this side. As far as I am concerned, if there is no further debate, the Presiding Officer can put the question.

Mr. President, I move to reconsider the vote.

Would the Senator yield for a question?

We explicitly wrote into this bill the following language: that the procedures providing for the determination that somebody is an Al-Qaida terrorist or related, affiliated one is not required to be implemented until after the conclusion of the interrogation session, which is ongoing at the time the determination is made.

Is the Senator familiar with that language which explicitly says that the President will adopt the procedures--whatever procedures the President determines--to make sure there is no interference with an ongoing interrogation by the civilians as it appears in section 2(c) on page 363? Is the Senator familiar with that?

Is it not true, however, that the language which is in this bill that I just read clearly provides there will not be any interference with an interrogation session, that those procedures are to be determined by the President, and that it explicitly says there will not be any interference with the interrogation and the procedures will guarantee there will not be? That is the point of this language.

I don't understand how the statement could be made that this language in this bill interferes with the interrogation by civilian authorities and the FBI when the very language here says they will not interfere with that interrogation. I wonder if the Senator could explain to me his agreement with the Senator from Illinois that something in this bill would result in an interference with an interrogation.

I do appreciate the Senator's response. I have one other question, and that has to do with an American citizen who is captured in the United States and the application of the custody pending a Presidential waiver to such a person. I wonder whether the Senator is familiar with the fact that the language which precluded the application of section 1031 to American citizens was in the bill we originally approved in the Armed Services Committee, and the administration asked us to remove the language which says that U.S. citizens and lawful residents would not be subject to this section.

Is the Senator familiar with the fact that it was the administration which asked us to remove the very language which we had in the bill which passed the committee, and that we removed it at the request of the administration that this determination would not apply to U.S. citizens and lawful residents? Is the Senator familiar with the fact that it was the administration which asked us to remove the very language, the absence of which is now objected to by the Senator from Illinois?

I thank my friend.

Reserving the right to object, and I don't object because that is the way we should proceed, going back and forth, and usually we do that informally. I don't know whether there may be implications because I don't know who will be speaking.

Mr. President, I have no objection.

I wonder if we can amend the unanimous consent agreement. There is nobody that I know of on this side at the moment who wants to speak in support of the amendment, so I am wondering if it would be agreeable to the ranking member to have two Members on his side go and then two Members on our side, should that occur.

In that case, I note the absence of a quorum.

I don't want you to agree if you think it is not fair.

I am in opposition to the amendment. I want to be fair.

No. Yield the floor.

You had two, I believe. You were the second, I think.

If we did not have somebody here, we were going to do it two at a time.

Madam President, first, let me thank Senator Whitehouse for the extraordinary effort he has made to go after counterfeit parts. We have incorporated his legislation in our legislation. It is a critically important part of our legislation. But his leadership has been early, often, and strong on this issue, and we commend and thank him for it. Hopefully, when this amendment gets passed, there will be a recognition of the critical role the Senator from Rhode Island played. It is an ongoing saga to stop counterfeiting coming in, mainly from China. This is a major effort to stem that flow.

Madam President, I wonder if the Senator from California might offer those amendments right now and call them up so we can get a vote on them. We are trying to vote on amendments, and I am wondering if she could call up one of those amendments, we could debate it, and then vote on it.

Which amendment is the larger one?

Is that one of the three?

Which was the larger of the three; can the Senator describe it for us?

Which is the one currently being reviewed, if the Senator is able to share that with us.

I thank the Senator.

That helps. I thank the Senator.

Will the Senator yield for a question?

The Christmas Day Bomber, I believe he was taken off that plane in Detroit, he was interrogated by the FBI; is that correct?

There was nothing wrong with that. That was the choice of the executive branch. It worked here.

We make it flexible. This is something which I heard today from the supporters of this amendment. They want flexibility.

That is exactly what we provide in this amendment. That is the question Senator McCain just asked: If this administration or any administration decides that they want to provide the civilians with opportunity to interrogate, for whatever length of time they want, they are going to set the procedures under this language in our bill; is that not correct? The President will determine the procedures. If he wants those procedures to be civilian control until some point, that is going to be up to the President. We may disagree with that or not.

There are Members of our body who very strongly disagree with that.

But that is not who is going to decide. We are not going to make the decision that the person is going to be given or not given civilian interrogation. That decision is going to be made by a President who sets the procedures for interrogation and will decide whether to provide a waiver; is that correct?

I would think it would be a very bad policy.

Not necessarily. I think there are occasions where the civilian interrogation may be actually more workable.

That is correct--indefinitely. But how long that lasts is a procedure the President is going to determine.

Under military custody, yes.

That is correct, providing flexibility which we should provide in order for the executive branch to have what they want, which is the flexibility. There, I think, many of our colleagues believe there is too much flexibility. But whether that is right or----

But whether they are right or wrong, the facts are in this bill there is flexibility. It is carefully laid out. The President will lay out the procedures and notify the Congress of those procedures. But the point is, we do provide the very flexibility that the President of the United States has sought. We give them that flexibility, and it seems to me for the characterization of this bill to be that there is no flexibility, that somebody must go into military detention, is inaccurate. We ought to debate policy, but we should not debate what the words of a bill are.

One other thing. Is it not correct that when it is said, as the Senator from California did, that this provision has unprecedented and new authority for indefinite detention of American citizens without trial, that as a matter of fact we had in section 1031, in the bill filed months ago, language which would have exempted American citizens? It was the administration that wrote 1031 the way it is now and has approved of that language; is that not correct?

I am sorry?

That is correct.

And believes they have that authority.

The Senator is correct. The Senator has led the way to have this kind of additional protection for those prisoners. There is greater protection in this bill because of that review process than there is without this bill.

If I could, one other question, because the Senator is an expert on this subject. Is it also not true for the first time in terms of determining whether a person is, in fact, somebody who needs to be detained under the law of war--for the first time when that determination is made, that person is entitled to a lawyer and entitled to a military judge?

And it is the law for the first time; is that not correct?

Would the Senator yield?

In addition to providing in this bill that the determination as to whether somebody is al-Qaida is to be made through procedures which the President will adopt, No. 1, which is flexibility.

No. 2, that determination shall not interfere with any interrogation which is undertaken by civilian or any other authorities; is that not correct? And, finally, on top of that, there is a waiver that is provided. We have all of that protection. So the statements that are made on this floor and in some of the press that somehow or other we are pushing everybody who is determined to be al-Qaida into the military detention system is not accurate because we have those three protections, the procedures for that decision as to whether someone is al-Qaida, our procedures, which the President is going to adopt; secondly, we only apply this to al-Qaida, not to everybody who might be captured; and, third, we have a waiver for triple protection to protect what the Senator rightly is sensitive to, and that is there be flexibility in the executive branch.

All of us may say we want it done one way or another. We may presume it be done one way or another, we may wish that it be done one way, civilian or military. Some of us may have different opinions. That is not the point. That is not the issue. The issue is what does this bill provide. This bill provides a reasonable amount of flexibility and does not tell the President you must turn somebody who is suspected of being al-Qaida over to the civilians at any point or to the military at any point.

If this bill contained the provisions as described by our friend from California, I would vote against our bill.

Will the leader yield for a question?

Would the Senator yield for a question? I think I may be able to satisfy Senator Paul, I hope.

Would the leader make that unanimous consent effective after there is 5 more minutes of discussion between ourselves?

And after Senator Paul calls up an amendment and after Senator Merkley calls up an amendment and then lay them aside.

Would that be acceptable?

If I could just comment very quickly to my friend from Illinois.

I think the Chair ordered it.

I just wanted to ask the Senator a question.

I just have a question, if the Senator would yield, of the Senator from Illinois.

Is the Senator aware of the fact that section 1031 in the bill we adopted months ago in the committee had exactly the language that the Senator from Illinois thinks should be in this section 31, which would make an exception for U.S. citizens in lawful residence? That was in our bill. I am wondering if the Senator is aware that the administration asked us to strike that language from section 1031 so that the bill in front of us now does not have the very exception the Senator from Illinois would like to see in there.

No, I understand. But I am just asking the Senator, is the Senator aware it was the administration that asked us to strike that language, the exception for U.S. citizens?

I thank the Senator.

Mr. President, first, I ask unanimous consent to add Senators Akaka, Chambliss, Blumenthal, Inhofe, Gillibrand, Ben Nelson, Stabenow, and Mark Udall as cosponsors of amendment No. 1092, which is the pending Levin-McCain amendment on counterfeit parts.

Secondly, Mr. President, we are going to move now, I believe, to the conference report. But I do want to remind folks of what Senator McCain said; which is, we will be here tomorrow morning. We are here to try to clear amendments. We want to be able to give our colleagues as much opportunity as possible to debate and to clear amendments. But we have to move this bill. We are not going to be given a whole week after we come back to get this bill passed, hopefully.

No. Regular order.

The Levin-McCain amendment.

S. 1253 S. 1867 H.R. 2112

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