Floor Statements

Mr. President, there will be, then, no more amendments we will be able to take up tonight on the Defense authorization bill. We will pick up that bill tomorrow.

Mr. President, I ask unanimous consent that the Committee on Commerce, Science, and Transportation be authorized to meet during the session of the Senate on Tuesday, July 21, 2009, in Russell 253, at 2:30 p.m.

Mr. President, I ask unanimous consent that the Committee on Energy and Natural Resources be authorized to meet during the session of the Senate to conduct a hearing on Tuesday, July 21, at 10 a.m., in room SD-366 of the Dirksen Senate Office Building.

Mr. President, I ask unanimous consent that the Committee on Environment and Public Works and the Subcommittee on Green Jobs and the New Economy be authorized to meet during the session of the Senate on Tuesday, July 21, 2009, at 10 a.m., in room SD-406 of the Dirksen Senate Office Building.

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Tuesday, July 21, 2009, at 10:15 a.m.

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Tuesday, July 21, 2009, at 2:15 a.m.

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Tuesday, July 21, 2009, to hold a hearing entitled ``The National Security Implications of Climate Change.''

Mr. President, I ask unanimous consent that the Committee on the Judiciary be authorized to meet during the session of the Senate, on July 21, 2009, at 10 a.m., in SH-216 of the Hart Senate Office Building.

Mr. President, I ask unanimous consent that the Permanent Subcommittee on Investigations of the Committee on Homeland Security and Governmental Affairs be authorized to meet during the session of the Senate on Tuesday, July 21, at 2:30 p.m., to conduct a hearing entitled, ``Excessive Speculation in the Wheat Market.''

Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on July 21, 2009, at 2:30 p.m.

Mr. President, I ask unanimous consent that the Committee on the Judiciary, Subcommittee on Immigration, Refugees, and Border Security, be authorized to meet during the session of the Senate, on July 21, 2009, at 2:15 pm, in room SD-226 of the Dirksen Senate Office Building, to conduct a hearing entitled ``Ensuring a Legal Workforce: What Changes Should be Made to Our Current Employment Verification System?''

Mr. President, following the remarks of the leader, the Senate will resume consideration of the Department of Defense authorization bill. Under an agreement reached last week, there will be up to 40 minutes for debate prior to votes in relation to amendments relating to hate crimes. Those votes would be in relation to one amendment offered by Senator Leahy or his designee and three amendments offered by Senator Sessions. It is my understanding that we may be able to dispose of the Leahy amendment by a voice vote and that the managers are working on the Sessions amendment regarding Attorney General regulations. Upon the use or yielding back of all debate time, the Senate will proceed to a series of at least two rollcall votes and possibly up to four rollcall votes. The votes could occur in the 4 p.m. range. After the Senate disposes of those amendments, we will resume debate on the gun amendment offered by Senator Thune. Second-degree amendments are in order to the gun amendment. Also under the agreement reached last week, upon disposition of the Thune amendment, Senator Levin will be recognized to offer the Levin-McCain amendment relating to the F-22s.

I yield the floor.

Mr. President, first of all, we are operating under a unanimous consent agreement. We have an agreement to vote on the F-22 amendment after 2 hours of debate. We are attempting to schedule that now. People are getting the cooperation of Members for tomorrow morning. That is our goal.

The pending amendments to the hate crimes provision are going to be disposed of this afternoon pursuant to that same unanimous consent agreement. There may be a difference as to how we got to where we are. There is a difference; it was the inability to get the F-22 amendment to a vote, to get a time agreement, which triggered the determination of the majority leader to offer an amendment that Senator Kennedy had offered about 2 years ago on a Defense authorization bill. It passed the Senate after a long debate.

It is not the first time hate crimes was taken up by the Senate. It is not the first time the hate crimes amendment was offered on the Defense authorization bill. It was offered 2 years ago, and it passed on a 60-to-39 vote, I believe. It was Senator Kennedy's amendment. Of course, Senator Kennedy is not available now to offer his own amendment. The majority leader offered it because of Senator Kennedy's necessary absence.

So now we are operating under a unanimous consent agreement. The pending amendment is Senator Thune's. It is not germane, but, again, it is not unusual that nongermane amendments are offered in the Senate. We try to keep them to a minimum--those who manage bills--in order to get through the bill.

We are hoping that once the F-22 amendment and the amendment of Senator Thune are disposed of, we will then be able to get back to germane and relevant amendments. That is our hope. In order for that to happen, we need Members of the Senate to bring those amendments to the floor and tell us they are ready to proceed.

We are working very hard, as we always do, and our staffs are working very hard, as they always do, to clear amendments. I believe we have about 20 amendments that have been cleared already and, at an appropriate time, I believe Senator McCain and I will be able to offer them as a package.

Senator McCain was extremely helpful in getting us to the point where we

could enter the unanimous consent agreement. A vote is scheduled today on our hate crimes-related amendment. We have a time agreement on the F-22 amendment, and a time for voting on that amendment is being discussed. It is my goal that we vote on that amendment tomorrow morning after we debate it.

Please, colleagues, bring your amendments to the floor. We are here. We are ready to be notified of those amendments on which Members of the Senate believe we will need a rollcall vote. We will try to clear as many amendments as we can. We urge our colleagues to notify us now of the amendments they intend to offer.

Mr. President, I ask unanimous consent that amendment No. 1614 be identified as a Kennedy amendment.

Mr. President, I suggest the absence of a quorum.

I ask unanimous consent that the Senator from Virginia be recognized next as in morning business for up to 10 minutes.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I ask unanimous consent that it be in order for the Senate to consider en bloc the following amendments: amendments Nos. 1614, 1615, and 1617.

I now call up amendments Nos. 1614, 1615, and 1617 and ask that the amendments be modified with changes at the desk and that once modified, the amendments be agreed to, as modified, and the motions to reconsider be laid upon the table en bloc.

Mr. President, I ask unanimous consent that the Sessions amendment No. 1616 now be the pending business, and that at 4:10 p.m., the Senate proceed to vote in relation to the amendment, with the time until then equally divided and controlled in the usual form.

Mr. President, I ask unanimous consent, with the permission of the Senator from Alabama, that the reading of the amendment be dispensed with.

I yield the floor.

Madam President, first, I thank the Senator from Alabama for this amendment. He is a valued member of the Armed Services Committee. He knows, as we all know, because of our work on the Armed Services Committee, how our men and women in uniform protect us, and we should do everything we can when it comes to our criminal laws to protect them and their families. This amendment is aimed at doing this. It would create a new Federal crime. It is appropriate we do that. I support the amendment.

I suggest the absence of a quorum.

Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

I ask for the yeas and nays.

I was going to inquire of the Senator whether he is speaking on the bill? It is morning business.

I object.

I object.

Madam President, first of all, while my good friend from Kansas is on the floor, let me say, we look forward to seeing the language he is going to be offering on North Korea. His description of North Korea as a threat is an accurate description. I do not know that the terrorist state list fits them, but surely the threatening state list fits them very directly. We look forward to seeing that language and trying to work with him and his colleagues on that amendment.

Nobody should be targeted because of the color of their skin, their religion, their disability, their gender or their sexual orientation. For years now, I have joined many colleagues, with the leadership of Senator Kennedy, in supporting passage of the Matthew Shepard Local Law Enforcement Hate Crimes Prevention Act.

We have seen hate crimes increase in this country, most recently at the Holocaust Museum here in Washington.

According to the FBI, between 1998 and 2007, more than 77,000 hate crimes incidents were reported. The legislation we are offering that the majority leader has introduced will help prevent and deter these crimes.

This language, the Matthew Shepard bill, passed the Senate with bipartisan support as an amendment to the Defense authorization bill in September of 2007. This is not new. This language is offered on this bill. Cloture was invoked then by a vote of 60 to 39. The hate crimes amendment before us will, for the first time, give the Justice Department jurisdiction over crimes of violence which are committed not only because of a person's race, color, religion, and national origin, which we already have on the books, but also based on gender, sexual orientation, or disability.

There have been some statements made about restraints on speech. The language is very clear it only applies to violent acts, and it emphasizes explicitly in this amendment that it puts no limits or restraints on constitutionally protected speech, expressive conduct, or activities, including but not limited to the exercise of religion, which is protected by the first amendment, or peaceful activities such as picketing or demonstrations. The law we are proposing will continue to punish violent acts only, not beliefs. It is crucial that we understand this legislation only applies to violent, bias-motivated crimes and does not infringe on any conduct protected by the first amendment.

The first amendment right to organize, to preach against, or speak against any way of life, or any person, is left intact with this legislation.

Again, we are not starting from scratch. The law already prohibits violent crimes based on race, color, national origin, or religion. This amendment would add disability, sexual orientation, gender, and gender identity.

The amendment ensures that State and local law enforcement will retain primary jurisdiction over investigations and prosecutions. The amendment has a strong certification provision that authorizes the Federal Government to step in only when needed. Prior to indicting a person, the Justice Department must certify that the State in which the hate crime occurred either does not have the jurisdiction, the State has asked the Federal Government to assume jurisdiction, or that a State prosecution has failed to vindicate the Federal interest against hate-motivated violence, or a Federal prosecution is necessary to secure substantial justice.

Now, why this bill? Why on this bill? First, it is common practice in the Senate to offer to bills, although the amendment is of a different subject. In other words, this is not the first. For 200-plus years, amendments have been offered to bills which are not relevant to the bill before us. That is the Senate. It occurs dozens of times every session.

There are not many subjects that are more important than the subject of hate crimes. This bill is an available vehicle for an important subject. We have done this before on this bill.

One other thing that I feel keenly about as chairman of the Armed Services Committee, this bill embodies values of diversity and freedom that our men and women in uniform fight to defend.

As Senator Kennedy said in 2007 when we debated this legislation:

We want to be able to have a value system that is worthy

for our brave men and women to defend. They are fighting

overseas for our values. One of the values is that we should

not, in this country, in this democracy, permit the kind of

hatred and bigotry that has stained the history of this

Nation over a considerable period of time. We should not

tolerate it. We keep faith with these men and women who are

serving overseas when we battle that hatred and bigotry and

prejudice at home. So we are taking a few minutes in the

morning to have this debate and discussion.

Those were Senator Kennedy's words.

This is not a long debate by Senate standards. This is a reasonably long debate to give everybody an opportunity to express their views. But we have debated this before 2 years ago. We have adopted this before 2 years ago. It was the right thing to do then for the men and women of our country, as well as to keep the faith with the men and women who put on the uniform of this Nation and fight for the values this Nation represents.

Finally, America has taken many steps throughout our history on a long road to becoming a more inclusive Nation, and our diversity is one of our greatest strengths. Our tolerance for each other's differences is part of the lamp that can help bring light to a world which is enveloped in bigotry and intolerance. Hopefully, we can take another step if we adopt this amendment.

So the Matthew Shepard Hate Crimes Prevention Act of 2009 furthers the goal of protecting our citizens from crimes of hate and deterring those crimes. I hope we have a resounding cloture vote, and again, hopefully, that can occur later on this evening.

I yield the floor and note the absence of a quorum.

Mr. President, let me thank my good friend from Arizona, first of all, for all the effort he has made today with his staff. Our staffs have been working hard. There is a lot of progress on the unanimous consent request which will set out the path forward, not just for tonight. We, obviously, expect votes tonight--a number of votes tonight--but also for the coming days, when we come back here for votes on Monday.

But there is progress being made, and the staffs are working very hard. We can actually see them in the back of the Chamber at times going back and forth with different ideas. But we are close. We are confident. We are optimistic we will fairly soon have a unanimous consent agreement.

I again thank my friend from Arizona for all he has done to help facilitate this, and our staffs, because they are working hard and I am optimistic they are going to succeed.

Will the Senator yield for a question?

The amendment of the Senator from Vermont makes it very clear that included in first amendment rights are the rights to peaceful picketing or demonstration. That is not included in the Brownback amendment. Would the Senator from Vermont agree, however, that we don't need to choose between the two amendments? They both state important truths and make very important contributions. Is it not the Senator's understanding that both amendments can be adopted, that they are not at all inconsistent with each other?

Mr. President, parliamentary inquiry: I understand the first vote under the unanimous consent agreement will be on the Leahy amendment; is that correct?

In terms of these two amendments?

All right. So that after the disposition of the Hatch amendment, the first amendment to be disposed of between these two would be the Leahy amendment?

I would hope that to expedite things the Senator from Vermont would consider a voice vote because I think both of these amendments will pass, and should pass, and we can save the body's time.

But I would like to suggest that even though the Senator from Kansas wants a rollcall, both amendments should be adopted, and if the Senator from Vermont can accept a voice vote when it comes his turn, I think that will indicate the clear will of the body, and then we would proceed to another clear will of the body on the amendment of the Senator from Kansas.

Mr. President, is there any time remaining for the opponents?

Mr. President, the Hatch amendment is explicit. It is clear. On lines 6 and 7 on page 1, and lines 1 and 2 on page 2, it says: ``division E of this Act (relating to hate crimes), and the amendments made by that division, shall have no force or effect.'' It is explicit. It says: No hate crimes legislation; instead, a study.

I yield the floor.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 1613

I move to lay that motion on the table.

Amendment No. 1610

Mr. President, I withdraw Senate amendment No. 1469.

Mr. President, to explain where we are, let me take a few minutes, first of all, on the procedures. Then I want to go back and make some comments about the Levin-McCain amendment, which will come back. This is temporarily withdrawn because we could not get to a vote.

The bottom line is we were here all day yesterday. We attempted repeatedly to obtain an agreement as to when we could vote on the Levin-McCain amendment.

We had a lot of time yesterday for people to make speeches. We had time the day before. We have time anytime. But we have to get to a vote on that amendment.

The reason we were not able to get to a vote is because of the next amendment, which the majority leader indicated is going to be taken up on this bill, the so-called hate crimes amendment. We have a law relative to hate crimes. This had been an important amendment to the law to add a group who had been left out, two groups previously left out of the existing hate crimes law. It would have also had an important definition of Federal interest in this hate crimes legislation.

Hate crimes legislation is not new. This body had approved hate crimes legislation a couple years ago on the Defense authorization bill. The argument was made at that time that the hate crimes bill should not be offered on a Defense authorization bill. Senator Kennedy offered hate crimes legislation a couple years ago on the Defense authorization bill. The debate was extensive at that time as to why on this bill.

The reason it was offered on this bill is obvious. This is legislation. The Senate rules allow for amendments such as hate crimes or any other amendment to be offered on legislation that is pending before the Senate. The minority has offered many nonrelevant amendments this year on legislation. On the American Recovery and Reinvestment Act, there was an amendment relative to ACORN. On the DC voting rights bill, there were amendments relative to guns and to the fairness doctrine. On and on and on. The Senate rules permit nongermane, nonrelevant amendments to be offered to pending legislation. It is not at all new. The opportunity to do that has been taken by many of us this year, last year, the year before and, I am sure, next year. First, it is not new. It is common in the Senate to offer amendments which are not relevant to a bill that is pending. That is allowed under our rules.

The hate crimes amendment is an important amendment. I don't think anybody would deny the importance of this amendment. With hate crimes going up in the United States, it is critically important we strengthen our hate crimes law. There are Senators who oppose the amendment. That is the reason we are here, to debate, to argue for or to argue against. But I don't think one can argue it is uncommon, unusual or improper to offer nonrelevant amendments to legislation which is pending. Regardless of one's position on hate crimes, it is very difficult to argue it is not significant legislation.

Thirdly, as Senator Kennedy so powerfully argued--and those of us who joined with him a few years ago on this amendment surely agreed--the values that are involved in this legislation, the effort to make America a better place, a place freer of hate crimes, surely is one of the values our men and women put their uniforms on and fight for. The closer we can come to a society which is freer of hate crimes, the better off we are internally, the closer we will live up to what we stand for in our basic fundamental documents and our history. It is what men and women who fight for the United States and carry out their missions are fighting for--not just physical threats to this country but for the values for which we stand, for freedom from hate, for diversity, for freedom from intimidation and violence based on one's religion, ethnicity or the other attributes listed in the hate crimes legislation.

It is important legislation. It relates to the values of this country, values which our men and women take such risks for when they go into harm's way. The rules of this body allow for it.

Somehow or other, the fact that we were going to proceed to a hate crimes amendment on this bill, even whether it was next in line or whether it was down the line in terms of amendments, the fact that it was made clear that, again, on a Defense authorization bill, as we have in the past, in the past with 60 Members of this body supporting it, the fact that that was made known in an open and honest way to Members of this body apparently precipitated a determination on the part of some that they not allow us to get to a vote on the pending Levin- McCain amendment. That prospect, that open statement

that there would be a hate crimes amendment offered on this bill became the impediment, apparently, from all we can determine, to our getting agreement for a time for a vote on Levin-McCain.

The question is, How to remove that impediment. There were two choices: Either agree not to offer the hate crimes amendment or remove the impediment. We have to now remove the impediment. There is not a willingness on the part of a significant number of Senators--and I believe a majority--not to offer a hate crimes amendment. It is pending legislation that is before us.

The amendment is an important amendment. It has been offered before. There is precedent for offering it on the Defense authorization bill. The rules allow for it, so we don't need a precedent, but there is a precedent for doing so. There are dozens of precedents for offering nonrelevant amendments to legislation which is pending before the Senate.

We will come back, obviously, to the Levin-McCain amendment. The Levin-McCain amendment is a very important amendment on this bill. We have to deal with the decision of the Armed Services Committee, on a close vote, to add F-22 planes, which uniformed and civilian leaders of the military indicate they do not want and do not need and we cannot afford. We have had some debate. We had plenty of time for others to debate it. Everyone who wanted to speak on the subject, I believe, had more than enough opportunity to do so. Last night we heard from the Senator from Georgia as to his reasons for offering the amendment in committee to add the additional F-22s. I compliment the Senator from Georgia for all the hard work he has done on our committee. It is another example of how the Armed Services Committee works together. Our Presiding Officer is a distinguished member of the committee so he knows this firsthand, how we work together, guided by one basic principle: for the good of the Nation, for the good of the men and women in the armed services. We disagree, obviously, on the Levin- McCain amendment. There is surely, however, agreement that our intentions are always to adhere to that principle--what is best for our Nation, what is best for the men and women who put on the uniform of the Nation.

So while there was committee disagreement and disagreement on this floor on the question of whether additional F-22s should be produced, the disagreement is not along party lines and rarely, if ever, is along party lines on the Armed Services Committee. I wish to, again, compliment not only the Senator from Georgia but also other members of the committee for sticking to that very important principle.

I also agree with something the Senator from Georgia said last night relative to another of our operating principles. We have the right and the duty to challenge assumptions made in the bill sent to us by any administration and to act in accordance with our best judgment about what is right and what is in the best interests of the Nation. We are not a rubberstamp to every proposal offered by the executive branch. The Congress, hopefully, never will be.

The Senator from Georgia pointed out a number of cases where we have acted as anything but a rubberstamp to a budget request. We added funds, for instance, in this bill for a larger pay raise than the executive branch requested to honor the service of the men and women in the military who have been bearing an extraordinarily heavy burden for the country fighting in Iraq and Afghanistan. We added $1.2 billion for a more mobile variant of the Mine Resistant Ambush Protected Vehicle, called the MRAP. This MRAP variant is called the MRAP all-terrain vehicle. The reason we did this is because we knew there was an emerging requirement for these new vehicles to support our forces in Afghanistan that had not been reflected in the budget request. I don't believe any member of the Armed Services Committee or any Member of this body should act as a rubberstamp for any budget request, and the evidence will show over and over again, year after year, that our committee does not act as a rubberstamp.

The question on the Levin-McCain amendment is whether we are right, that the leadership of our military, both civilian and uniformed, made a sound judgment when they, similar to their predecessors in the Bush administration, determined that we should end production of the F-22. The debate is not about whether we will have the capability of the F- 22. It is a debate about how many F-22 aircraft we should have and at what cost.

We are talking about whether we will accept the recommendation of two Commanders in Chief, two Secretaries of Defense, plus the Joint Chiefs of Staff and their chairmen, that 187 F-22s is all we need, all we can afford, and all we should buy. Senator McCain and I have made a number of arguments about why we believe stopping the F-22 program at 187 is the right thing to do. I will not repeat all those arguments now, particularly since we have temporarily withdrawn the amendment. But it is important that I clarify promptly a number of points made by the Senator from Georgia during the debate yesterday so they do not remain uncontested.

First, the Senator said that the Air Force had not been involved in any of the studies that led to determining that 187 F-22s was the correct number of aircraft to buy. A few days ago, the committee heard contrary testimony from the vice chairman of the Joint Chiefs of Staff that there are at least two studies that support the department's plans for tactical aviation, including stopping F-22 production, including a recently completed study.

This is what he said:

There is a study in the Joint Staff that we just completed

and partnered with the Air Force on that, number one, said

that proliferating within the United States military fifth-

generation fighters to all three services was going to be

more significant than having them based solidly in just one

service, because of the way we deploy and because of the

diversity of our deployments.

So the Vice Chairman of the Joint Chiefs referred to a recent study that led to the conclusion that Senator McCain and I support. That study was partnered with the Air Force, unlike what was stated last night by the Senator from Georgia that these studies did not have Air Force involvement.

There is a strong analytical underpinning for the decision of the administration, including the Air Force. A letter from the Secretary of the Air Force and the Chief of Staff of the Air Force on this matter is one underpinning, one of the strong evidences that that conclusion is correct. The letter is already part of the record so I will quote briefly from it. The Secretary of the Air Force and the Chief of Staff of the Air Force concluded in part, as follows:

In summary, we assessed the F-22 decision from all angles,

taking into account competing strategic priorities and

complementary programs and alternatives, all balanced within

the context of available resources. We did not and do not

recommended that F-22s be included in the FY10 defense

budget. This is a difficult decision, but one with which we

are comfortable.

That is from the letter of the Secretary of the Air Force and the Chief of Staff of the Air Force, so it should make very clear what the Air Force's position is on the matter.

On another matter that was raised by the Senator from Georgia last night, listening to his arguments, one might conclude that the F-22 is the only aircraft we have or are planning to have that could operate effectively in the presence of very capable enemy surface-to-air missile systems. But the Department has provided contrary evidence. In his letter to myself and Senator McCain on July 13, the Secretary of Defense said the following:

. . . the F-35 is a half generation newer aircraft than the

F-22, and more capable in a number of areas such as

electronic warfare and combating enemy air defenses. To

sustain U.S. overall air dominance, the Department's plan is

to buy roughly 500 F-35s over the next five years and more

than 2,400 over the life of the program.

The key words in that sentence by the Secretary of the Defense in his letter is that there will be a ``more capable'' aircraft in the F-35 than the F-22 ``in a number of areas such as . . . combating enemy air defenses.''

I think we all agree our military needs to maintain air dominance. But as the Secretary's letter points out, the F-22 aircraft is not the only aircraft the Department is relying upon to contribute to making that air dominance a reality. In fact, in certain areas, such as electronic warfare and combating surface-to-air missiles, the Department of Defense is counting on

the F-35 fleet to meet those missions with greater effectiveness even than with the F-22.

The Senator from Georgia, last night, argued that proposing cuts in a number of areas--just like the committee 13-to-11 vote indicated and his proposal accomplished--that shifting funds to the F-22 program and shifting money from other areas was not doing any harm to other programs within the Defense Department.

I have previously talked about the specifics relative to this issue, and I wish to summarize the difference on this point very briefly, as, again, we will be coming back to this issue. It is withdrawn temporarily, but, obviously, we will return to this issue and resolve this issue prior to the determination of this bill.

First, we did not assume any first-year savings from acquisition reform or business process reengineering. Both these initiatives will yield savings. The Senator from Arizona and I, and with the support of our colleagues on the Armed Services Committee, all unanimously supported acquisition reform.

At the time we adopted that, and at the time the President signed our bill, we indicated there will be significant savings from reforming the acquisition system. But those savings do not occur in 2010. Nobody has alleged, and there is no support for any conclusion, that savings from acquisition reform are going to occur in the first year it is in effect. As a matter of fact, its main thrust is to apply to new weapons systems to make sure their technologies, for instance, are mature so we do not end up producing equipment that has technologies incorporated in it that have not been adequately tested.

So we are not going to see savings in fiscal year 2010, as the Senator from Georgia assumed in his amendment that was adopted barely by the committee to fund the F-22 add-on. The result is $500 million he assumed from savings ends up as across-the-board real program cuts.

I also would point out that the cost estimate of S. 1390 that we just received from the Congressional Budget Office did not assume any savings from those initiatives. Those, again, were savings which helped to fund the additional F-22s--alleged savings. They are phantom savings in the first year.

Secondly, on the operation and maintenance reductions that were used to fund the F-22 add, the original committee position on this matter-- O&M, operation and maintenance reductions--was developed consistent with the Government Accountability Office analysis. The reductions, however, that were taken in operation and maintenance by the Senator from Georgia when he offered this amendment in committee to add the F- 22s go far beyond what was indicated by the Government Accountability Office's analysis and far beyond what is prudent.

Finally, relative to the offsets that were taken, the $400 million cut applied to the military personnel funding top line will greatly complicate the Department's ability to manage the All-Volunteer Force and to provide for bonuses and incentives that will be needed to support the force. It might even be troublesome enough that the Department of Defense would be forced to ask for a supplemental appropriations--something we wanted to get away from this year and finally have.

So one other thing is, there are some who suggest: Well, the F-35 is just a paper airplane that is the future. We have the F-22 now. The F- 35 is not here yet. It is here. There are--in this budget alone, in the fiscal year 2010 budget, which is the fourth year, by the way, of production of the F-35--there are 30 F-35s being produced for the military. So this is not a future deal when we talk about F-35s. This is a here-and-now deal. We are already into low-rate initial production. There are already at least five test aircraft flying, and we have 30 F-35s funded in this bill which is before this body now.

Let me summarize the situation relative to the Levin-McCain amendment that would strike the additional funding for the F-22s, the additional planes that the military does not want, does not need, and says we cannot afford.

First, the F-22 is a very capable aircraft. There should be no doubt about it. We have them. We need them. And they are valuable.

Next, the Air Force has already bought, and will pay for, 187 F-22 aircraft. So the debate is not about whether we will have that capability of the F-22 for the next 20 years. We will. We should, and we will. The debate is over how many F-22s are enough to meet the Nation's requirements. Two Presidents--President Obama and President Bush--two Secretaries of Defense, three Chairmen of the Joint Chiefs, current members of the Joint Chiefs of Staff all agree that 187 F-22s is all we need to buy and all we should buy.

The debate also concerns what damage will be done if we do not reverse the cuts that were taken to pay for the additional F-22s--to pay for the $1.75 billion in the F-22 add. Those cuts are $400 million to military personnel accounts, $850 million to operations and maintenance accounts, and $500 million across-the-board reductions to the Department of Defense budget.

We received a letter from the President this week saying he will veto the Defense authorization bill if it includes the F-22 production.

So our amendment is a critically important amendment. It involves a lot of money, and there is a lot of principle involved as to whether we should continue to be building weapons we no longer need and we have enough of. We need the F-22. There is no doubt about that. But we have enough of the F-22, according to all our military leaders--civilian and uniformed leaders alike.

But we cannot get to a vote, and that is the fact of the matter. We have waited for an agreement to get to a vote on the Levin-McCain amendment. Repeatedly, I have asked whether we can set a time for a vote, and the answer has come back: We cannot set a time for a vote. It is clear that for some reason, which, frankly, I do not fully understand--the reason we are not permitted to get to a vote on the Levin-McCain amendment is because of the prospect, the fact that either the next amendment or somehow down the line on this bill there is going to be offered a hate crimes amendment.

How that and why that should result in a denial of an opportunity to vote on the Levin-McCain amendment escapes me, I must say. Because we are going to get to the hate crimes amendment whether we are allowed a vote on the F-22 amendment. Not allowing us a vote, not agreeing to a time for a vote on the Levin-McCain amendment does not obviate the fact there is going to be a hate crimes amendment offered. As a matter of fact, it is now the actual amendment before us. And everyone knew that.

So I do not understand the logic behind the refusal to permit a vote on an amendment--the Levin-McCain amendment--because of objection to going to a vote on hate crimes, when we are going to that hate crimes amendment anyway and when we are going to have to come back to the Levin-McCain amendment. Everybody knows it. We are going to have to resolve both those amendments. So the decision some made to deny us an opportunity to vote at this time on Levin-McCain simply stymies this body from doing what it is going to do.

There are many people who disagree with the Levin amendment. Fine. There are many people who disagree on the hate crimes amendment. That is their right. But what is undeniable is, we are going to resolve both, one way or the other. We are going to resolve both of those and hopefully a lot of other material and a lot of other amendments. They are both going to be resolved, one way or the other, on this bill. Argue both sides, argue neither side, but you cannot argue, it seems to me, that we should not allow a vote on the first amendment before us-- Levin-McCain--because of opposition to another amendment which is going to be offered.

I know there is strong opposition to hate crimes. I understand it. I understand why people say it should not be on this bill, despite the rules which allow it. I respect the right to disagree with it. But I do not understand the logic or the strategy which denies us the opportunity to vote on an amendment which has been thoroughly debated-- the Levin-McCain amendment--because there is another amendment down the line which is going to be offered which people object to, when they know it is coming up. Despite strong feelings that it should not come up, it is coming up. It is now before us. Everyone knew it was going to come up.

So now we are stymied. We are stymied from resolving an amendment which has to be resolved, one way or the other--Levin-McCain--because of objection to another amendment being offered. I don't get the logic. I don't understand the strategy. I understand the feelings and I respect the feelings, although I disagree with people who oppose the Levin-McCain amendment and I disagree with people who oppose the hate crimes amendment. So I understand the feelings. I don't share the feelings, but I respect them, and I respect their right to fight against these amendments. But for the life of me, I do not understand why we are denied an opportunity to vote on Levin-McCain because of an objection to another amendment. All it does is slow down this body. It stymies this body from resolving issues which are going to be resolved. As certain as this body is here, this is going to be resolved. These are going to be resolved like a lot of other amendments. I don't know how they will be resolved. That is not certain; it never is. But they will be resolved because that is the nature of the Senate, to resolve these issues.

Again, I thank my good friend from Arizona. I know there are differences on the question of whether hate crimes ought to be offered on this bill. I respect him deeply, and I respect his positions and his right to hold them. While I surely disagree with the decision that has been made to not permit us to move at this time to a resolution of Levin-McCain, I nonetheless have a great understanding of the feelings here. I appreciate them and I respect them.

I yield the floor.

Mr. President, I thank the Senator from Colorado, not just for his statement and for his support for this bill but for his work on this committee. He has made a major contribution already. We look forward to his continuing work with us. As he knows and has so well expressed, this is a bipartisan effort on the part of the committee. It is important that we continue that way, and his instincts have shown already very dramatically that those are his views as well.

So I thank him very much, not just, again, for the support of an amendment that we plan on getting back to as soon as we dispose of the hate crimes bill but also, and even more importantly, for his great work on our committee.

I yield the floor.

Mr. President, I ask unanimous consent that after my remarks, which will be no more than 5 minutes, Senator Brown be recognized for up to 10 minutes, and then Senator Chambliss be recognized for 15 minutes.

Mr. President, first, my dear friend from Arizona has spoken very eloquently about the transcendent importance of the Levin- McCain amendment. I could not agree with him more. We tried for 2 days to get an agreement to vote on that amendment. It is a critically important amendment for the reasons he has given and for the reasons I hopefully have given persuasively around here, and others have as well.

We have this President, the previous President, this Secretary of Defense, the previous Secretary of Defense, this Chairman of the Joint Chiefs, the previous Chairman of the Joint Chiefs, the Vice Chairman of the Joint Chiefs, the Chief of Staff of the Air Force, and the Secretary of the Air Force saying we have enough F-22s. We have to move on to the F-35, which is under production, by the way. We have 30 F-35s funded in this bill.

We have tried to get the Levin-McCain amendment to a vote. We tried to reach an agreement and a time. We could not get an agreement on the time. That is what has then precipitated the decision of the majority leader to move on to the hate crimes amendment. We have simply tried, day after day, to get a vote, without success.

I could not agree more that this is a critically important amendment, and we have to end production of a weapon system that we no longer need, according to top civilian and military experts, and focus more on the F-35, which is going to be used by all three of the services, not just one. It will have greater capabilities in very critical areas than the F-22, and it will cost significantly less than the F-22. But we could not achieve that.

I don't understand the logic or the strategies involved that say we cannot have a vote on the amendment that is pending--Levin-McCain amendment--and then when faced with the majority leader's amendment on hate crimes, forces that to a cloture vote, which is going to be held-- in other words, everybody understands both of these amendments are going to be addressed on this bill one way or the other. Nobody can guarantee the outcome on these amendments. But what can be guaranteed is that these amendments are going to be debated on this bill because the majority leader has made that clear for a long time. The procedures of this body allow for it.

The precedents of this body are full of amendments such as this. As a matter of fact, the hate crimes amendment was adopted on the Senate Defense authorization bill 2 years ago, after the same kind of debate. Debate is fair. Debate is important. Every one of us should protect the right of everyone else to debate. Whether it should go on this bill or another, we can debate that. But it is offered on this bill, as was noticed by the majority leader days ago. It is what we have done years ago. It is totally consistent with the rules of the Senate. As a matter of fact, it has been done repeatedly in the Senate.

Maybe we should adopt a new rule that says you have to be relevant or germane to offer an amendment to a pending bill. We don't have that rule, never had that rule, and probably never will have that rule.

But that is the way the Senate operates. These are important amendments. Again--and I am going to close with this--I don't get the logic of not allowing us to proceed to the Levin-McCain amendment because another amendment that some people don't like and don't think should be offered is going to be offered on this bill, when what is certain is that both amendments are going to be offered on this bill. Nothing is accomplished by refusing that vote on the Levin-McCain amendment except delay. That is the only thing accomplished by the refusal of whoever it was who refused to agree to a time to vote on Levin-McCain, nothing was accomplished except delay. And that, I don't think, is in anybody's interest, for the reasons Senator McCain gave.

We want to get this bill passed. We want to get it conferenced. We want to get it to the President, hopefully, by the time this fiscal year is over because the troops deserve us to act.

I am going to vote for the hate crimes amendment. I believe it is very appropriate that it be on this bill. I spoke 2 years ago to this effect, and I will speak again at the right time, perhaps tomorrow if there is time, as to why the hate crimes amendment belongs on this bill. It is an important amendment. It involves acts, as the leader and others have said, of domestic terrorism. The values reflected in the hate crimes legislation are values which our men and women who put on the uniform of this country fight for and put their lives on the line for, a country which believes in diversity, a country that believes you ought to be able to have whatever religion you want, be whatever ethnic group, whatever religious group, whatever racial group you are part of, whatever your sexual orientation, whether you are disabled, regardless of your gender, that you should be free from terror and physical abuse.

That is what the hate crimes law does now, except it does not include some groups who should be included, including the disabled and including people who are gay. That is what is involved here.

It is not a new debate. We debated it 2 years ago. It is not new on this bill. It was added in the Senate 2 years ago.

I hope we can reach an agreement to get to a vote on both these amendments. They are both going to be resolved on this bill. That is a certainty. Again, how they are going to be resolved no one knows. We can guess as to what the outcome will be. They will both be close votes, I believe. Let's get on it and get through those votes.

I yield the floor.

Mr. President, I would like to announce for the information of the Senate and the public that the Permanent Subcommittee on Investigations of the Committee on Homeland Security and Governmental Affairs has scheduled a hearing for Tuesday, July 21, entitled, ``Excessive Speculation in the Wheat Market.'' This hearing is a followup to the June 24 Subcommittee release of a 247-page staff report entitled, Excessive Speculation in the Wheat Market, examining how commodity index traders, in the aggregate, have made such large purchases on the Chicago wheat futures market that they have pushed up futures prices, disrupted the normal relationship between futures prices and cash prices for wheat, and caused farmers, grain elevators, grain processors, and others to experience significant unwarranted costs and price risks. The Subcommittee hearing will examine the nature of the problems caused by index trading in the wheat market and possible solutions, including applying standard position limits to index traders instead of exempting them. Witnesses for the upcoming hearing will include representatives of CFTC, and the Chicago Mercantile Exchange, as well as representatives of wheat producers, users, consumers, and index traders.

The Subcommittee hearing has been scheduled for Tuesday, July 21, 2009, at 2:30 p.m., in room 342 of the Dirksen Senate Office Building. For further information, please contact Elise Bean of the Permanent Subcommittee on Investigations a 202-224-9505.

subcommittee on water and power

Madam President, the Levin-McCain amendment which is before the Senate would strike $1.75 billion in funding for the F-22 aircraft that is in the committee bill that was adopted on a very close vote, and we would also restore some very serious reductions that had to be adopted in order to pay for that increase.

I come to this debate as somebody who supported the F-22 program until the numbers were achieved that were needed by the Air Force. This debate is not about whether we are going to have the capability of the F-22, it is a debate about how many F-22 aircraft we should have and at what cost. And we are talking here about whether we should accept the recommendations of two Commanders in Chief, two Secretaries of Defense, two Chairmen of the Joint Chiefs of Staff, and the Joint Chiefs of Staff that 187 F-22s is what we need and all we can afford and all we should buy.

Madam President, yesterday we put in the Record two letters, one from the

President of the United States saying he would veto a bill--not consider a veto but actually veto a bill--that has more than 187 F-22s that are to be provided. We also put a letter from the Secretary of Defense and the Chairman of the Joint Chiefs of Staff in the Record yesterday going through all the reasons they strongly oppose any additional F-22s and oppose the committee language which costs $1.75 billion, taking it away from some very important programs.

Today, I wish to read briefly and then put in the Record a letter that came from the Secretary of the Air Force yesterday afternoon and from the Chief of Staff of the Air Force opposing the additional F-22s that are in the committee bill. This letter reads in part:

As we prepared the fiscal year 2010 funding submission, and

mindful that the final lot of aircraft is scheduled for

completion over the next year, we methodically reviewed this

issue from multiple perspectives. These included: emerging

joint war-fighting requirements; complementary F-22 and F-35

roles in the future security environment; potential

advantages of continuing a warm F-22 production line as

insurance against possible delays/ failures in the F-35

program; potential impacts to the Services and international

partners if resources were realigned from the F-35 to the F-

22; overall tactical aircraft force structure; and funding

implications, given that extending F-22 production to 243

aircraft would create an unfunded requirement estimated at

over $13 billion.

And then they summarized--this is the Air Force speaking; top civilian, top military leader in the U.S. Air Force--as follows:

We assessed the F-22 decision from all angles, taking into

account competing strategic priorities and complementary

programs and alternatives, all balanced within the context of

available resources. We did not and do not recommend F-22s be

included in the FY10 defense budget. This is a difficult

decision but one with which we are comfortable. Most

importantly, in this and other budget decisions, we believe

it is important for Air Force leaders to make clear choices,

balancing requirements across a range of Air Force

contributions to joint capabilities.

Madam President, I ask unanimous consent to have printed in the Record the entire letter from the Secretary of the Air Force and the Chief of Staff of the Air Force at this time.

Madam President, first let me thank Senator McCain for his very comprehensive, thorough, and compelling argument relative to the

I ask unanimous consent that the order for the quorum call be rescinded.

Madam President, I ask unanimous consent that the Senate stand in recess until 2:15.

Mr. President, very briefly, let me thank Senator Dorgan for his extraordinary work in the area of waste, fraud, and abuse, not just in the area of the Department of Defense but in so many other areas as well. He is surely a foremost leader in this institution in this effort, and the oversight work he has been able to do is surely cutting-edge with the kind of leadership he has undertaken. We appreciate it. We need it. We need more of it. We are grateful for it. Every taxpayer in America ought to be grateful to Senator Dorgan.

Mr. President, let me urge Members who are going to be speaking on the F-22 to let us know and come to the floor because we are hopeful to conclude this debate no later than early tomorrow morning and to bring it to a vote. We are making every effort to see if we can agree on that.

I yield the floor.

Mr. President, I ask unanimous consent the order for the quorum call be rescinded.

Mr. President, I hope, if our colleagues might have remarks on the pending amendment, they would come over now or give us some indication they might want to speak in the morning because we need to press ahead with this amendment. In the next few minutes, I am going to be making inquiry with the other side of the aisle to see if we cannot reach a unanimous consent agreement to have a vote tomorrow morning. We tried this yesterday without success and earlier today without success, but we are going to try again because it is important we resolve this amendment, dispose of this amendment, so we can go on with other amendments to the bill. I will be making that inquiry of my good friend from Arizona in the next few minutes.

I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, so far we have been unable to obtain agreement to have a vote tomorrow morning on the Levin-McCain amendment. I am hoping we can achieve such agreement yet tonight; if not, in the clear dawn of tomorrow morning. I am disappointed we have not been able to reach agreement to go to a vote on that amendment, but that is a fact with which we will have to deal. In the meantime, I ask unanimous consent that the Senate now proceed to a period of morning business, with each Senator allowed to speak up to 10 minutes.

Mr. President, I ask unanimous consent that the Committee on Banking, Housing, and Urban Affairs be authorized to meet during the session of the Senate on July 14, 2009 at 9 a.m., to conduct a hearing on ``Creating a Consumer Financial Protection Agency: A Cornerstone of America's New Economic Foundation.''

Mr. President, I ask unanimous consent that the Committee on Energy and Natural Resources be authorized to meet during the session of the Senate to conduct a hearing on Tuesday, July 14, 2009, at 10 a.m., in room SD-366 of the Dirksen Senate Office Building.

Mr. President, I ask unanimous consent that the Committee on Environment and Public Works be authorized to meet during the session of the Senate on Tuesday, July 14, 2009, at 10 a.m. in room 406 of the Dirksen Office Building.

Mr. President, I ask unanimous consent that the Committee on Environment and Public Works be authorized to meet during the session of the Senate on Tuesday, July 14, 2009, at 2:30 p.m. in room 406 of the Dirksen Office Building.

Mr. President, I ask unanimous consent that the Committee on Finance be authorized to meet during the session of the Senate on Tuesday, July 14, 2009, at 10 a.m., in 215 Dirksen Senate Office Building.

Mr. President, I ask unanimous consent that the Committee on Health, Education, Labor, and Pensions be authorized to meet during the session of the Senate on Tuesday, July 14, 2009, at 9 a.m. in room 325 of the Russell Office Building.

Mr. President, I ask unanimous consent that the Committee on the Judiciary be authorized

to meet during the session of the Senate on July 14, 2009, at 9:30 a.m., in room SH-216 of the Hart Senate Office Building, to continue the hearing on the nomination of Sonia Sotomayor to be an Associate Justice of the Supreme Court of the United States.

Mr. President, I ask unanimous consent that the Committee on Veterans' Affairs be authorized to meet during the session of the Senate on Tuesday, July 14, 2009 at 9:30 a.m. to conduct a hearing entitled, ``Women Veterans: Bridging the Gaps in Care.'' The Committee will meet in room 418 of the Russell Senate Office Building beginning at 9:30 a.m.

Mr. President, I ask unanimous consent that the Subcommittee on Consumer Protection, Product Safety, and Insurance of the Committee on Commerce, Science, and Transportation be authorized to meet during the session of the Senate on Tuesday, July 14, 2009, at 10 a.m., in room 253 of the Russell Senate Office Building.

Mr. President, on behalf of the Armed Services Committee, I am pleased to bring S. 1390, the National Defense Authorization Act for Fiscal Year 2010, to the Senate floor. This bill will fully fund the year 2010 budget request of $680 billion for national security activities in the Department of Defense and the Department of Energy.

The Senate Armed Services Committee has a long tradition of setting aside partisanship and working together in the interest of the national defense. This year follows that tradition. I am pleased that S. 1390 was reported to the Senate on a unanimous 26-to-nothing vote of the committee. This vote stands as a testament to the common commitment of all of our Members to supporting our men and women in uniform. I particularly thank Senator McCain, our ranking minority member, for his strong support throughout the committee process and, of course, for the dedication he has shown to national defense throughout his Senate career.

Earlier this year, the Armed Services Committee reported out the Weapons Systems Acquisition Reform Act of 2009 with similar bipartisan support. In less than 2 months, we were able to get the bill passed by the Senate, complete conference with the House, and have the President sign it into law. It is my hope that we will be able to move with similar dispatch on the bill now before us.

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 battlefields in Iraq and Afghanistan, make the investments we need to meet the challenges of the 21st century, and require 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 that 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 contains provisions that would, first, authorize a 3.4-percent across-the-board pay raise for all uniformed military personnel, and that represents half a percent more than the budget request and the annual rate of inflation. The bill authorizes a 30,000 increase in the Army's Active- Duty end strength during fiscal years 2011 and 2012 in order to increase dwell time and reduce the stress created by repeated deployments. The bill authorizes payment of over 25 types of bonuses and special pays aimed at encouraging enlistment, reenlistment, and continued service by Active-Duty and Reserve military personnel. We increase the authorization for the Homeowners' Assistance Program by $350 million in order to provide relief to homeowners in the Armed Forces who are required to relocate because of base closures or change of station orders. And we increase the maximum amount of supplemental subsistence allowance from $500 to $1,100 per month to ensure that servicemembers and their families do not have to be dependent on food stamps.

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 battlefields in Iraq and Afghanistan. For example, the bill contains provisions that would provide $6.7 billion for the Mine Resistant Ambush Protected, MRAP, vehicle fund, including an increase of $1.2 billion above the President's budget request for MRAP all-terrain vehicles which will be deployed in Afghanistan. The bill fully funds the President's budget request for U.S. Special Operations Command and adds $131 million for unfunded requirements identified by the commander of Special Operations Command. The bill provides full funding for the Joint Improvised Explosive Device Defeat Organization to continue the development and deployment of technologies to defeat these attacks. And we provide nearly $7.5 billion to train and equip the Afghan National Army and the Afghan National Police so they can carry more of the burden of defending their own country against the Taliban.

The bill would also implement most of the budget recommendations made by the Secretary of Defense to terminate troubled programs and apply the savings to higher priority activities of the Department. For example, the bill will terminate the Air Force Combat Search and Rescue-X helicopter program, CSAR-X. It will terminate the VH-71 Presidential helicopter. It would cancel and restructure the manned ground vehicle portion of the Army's

Future Combat System Program. It would stop the growth of the Army brigade combat teams, the BCTs, at 45 instead of 48, while maintaining the planned increase in end strength. It would end production of the C- 17 Program. It would terminate the Multiple Kill Vehicle Program, cancel the kinetic energy interceptor, cancel the second airborne laser prototype aircraft, and it would authorize $900 million of additional funding in the budget request to field more theater missile defense systems, the Terminal High Altitude Area Defense, the THAAD, and the standard missile-3 interceptors, and converting additional AEGIS ships for missile defense to defend our forward-deployed forces and allies against the many short- and medium-range missiles held by countries such as North Korea and Iran.

The bill supports the decision of Secretary Gates to stop deployment of the ground-based interceptors at 30 missiles and to focus on improving the capability of this system to be more reliable and effective than the current system against the limited threat of long- range missiles.

The bill also supports the decision to continue production of those ground-based interceptors that are on contract and to use them as test missiles and as spares. By fielding the most modern version of the interceptor, using modern silos and conducting operationally realistic testing with the additional missiles instead of putting them in silos, the system will provide, in Secretary Gates' words, a ``robust capability'' that is ``fully adequate to protect us against a North Korean threat for a number of years.'' According to testimony to the committee, the Joint Chiefs of Staff and the combatant commanders agreed that their highest priority for the GMD--ground missile defense--system was to have 30 interceptors with improved reliability, availability, and effectiveness. The bill before us again supports Secretary Gates' decision to field that improved capability.

I am disappointed that the committee voted on a very close vote not to terminate the F-22 aircraft production program, as requested by the Secretary of Defense and as supported by the Joint Chiefs of Staff. I plan to join with Senator McCain in seeking to overturn that decision during floor consideration of this bill.

Finally, the bill contains a number of provisions that will help improve the management of the Department of Defense and other Federal agencies. For example, the bill contains provisions that would, first, improve Department of Defense financial management by requiring the Department to engage in business process reengineering before acquiring new information technology systems and to submit regular reports on its progress toward auditable financial statements.

Second, it requires the Department of Defense to develop a comprehensive plan to address longstanding problems in its inventory management systems which lead it to acquire and store hundreds of millions of dollars worth of unneeded items.

Third, it places a moratorium on public-private competitions under OMB circular A-76 until the Department complies with an existing statutory requirement to develop information needed to manage its service contractors, plan for its civilian employee workforce, and identify functions that would be subject to public-private competition.

Fourth, we would authorize the Secretary to establish a new defense civilian leadership program to help recruit, train, and retain highly qualified civilian employees to help lead the Department of Defense over the next 20 years.

A very important provision in this bill is section 1031, which would address the problems that exist with military commissions. The military commissions provisions we have in law today do not provide basic guarantees of fairness identified by our Supreme Court. The existing provisions place a cloud, therefore, over military commissions and have led some to conclude that the use of military commissions can never be fair, credible, or consistent with our basic principles of justice.

Earlier this year, the President stated that military commissions can be reformed to meet basic standards of fairness needed for them to play a legitimate role in prosecuting violations of the law of war. In his May 21, 2009, speech at the National Archives, President Obama stated that:

Military commissions have a history in the United States

dating back to George Washington and the Revolutionary War.

They are an appropriate venue for trying detainees for

violations of the laws of war. They allow for the protection

of sensitive sources and methods of intelligence-gathering;

they allow for the safety and security of participants; and

for the presentation of evidence gathered from the

battlefield that cannot always be effectively presented in

federal courts.

The President continued:

. . . Instead of using the flawed commissions of the last

seven years, my administration is bringing our commissions in

line with the rule of law. . . . [W]e will make our military

commissions a more credible and effective means of

administering justice, and I will work with Congress and

members of both parties, as well as legal authorities across

the political spectrum, on legislation to ensure that these

commissions are fair, legitimate, and effective.

We agree with the President, and section 1031 reflects our determination to reform the commissions. In its 2006 decision in the Hamdan case, the Supreme Court held that Common Article 3 of the Geneva Conventions requires that the trial of detainees for violations of the law of war be conducted in a manner consistent with the procedures applicable in trials by courts-martial and that any deviation from those procedures be justified by ``evident practical need.'' The Supreme Court said that the ``uniformity principle is not an inflexible one; it does not preclude all departures from the procedures dictated for use by courts martial. But any departure must be tailored to the exigency that necessitates it.'' That is the standard the Armed Services Committee has tried to apply in adopting the procedures for military commissions that we have included in our bill.

This new language addresses a long series of problems with the procedures currently in law. For example, relative to the admissibility of coerced testimony, the provision in our bill would eliminate the double standard in existing law under which coerced statements are admissible if they were obtained prior to December 30, 2005. They would be inadmissible regardless of when the coercion occurred. Relative to the use of hearsay evidence, the provision in our bill would eliminate the extraordinary language in the existing law which places the burden on detainees to prove that hearsay evidence introduced against them is not reliable and probative. Relative to the issue of access to classified evidence and exculpatory evidence, the provision in our bill would eliminate the unique procedures and requirements which have hampered the ability of defense teams to obtain information and which have led to so much litigation. We would substitute more established procedures based on the Uniform Code of Military Justice, the UCMJ, with modest changes to ensure that the government cannot be required to disclose classified information to unauthorized persons.

Even if we are able to enact new legislation that successfully addresses the problems in existing law, we will have a ways to go to restore public confidence in military commissions and the justice they produce. However, we will not be able to restore confidence in military commissions at all unless we first substitute new procedures and language to address the problems with the existing statute.

As of today, we have almost 130,000 U.S. soldiers, sailors, airmen, and marines on the ground in Iraq. Over the course of the next fiscal year, we will undertake the difficult task of drawing down these Iraqi numbers while maintaining security and stability on the ground. At the same time, we have increased our forces in Afghanistan, with close to 60,000 troops engaged in increasingly active combat and combat support operations, and more are on the way.

While there are many issues where there may not be a consensus, we all know--and there is a consensus on this--that we must provide our troops the support they need as long as they remain in harm's way. Senate action on the National Defense Authorization Act for fiscal year 2010 will improve the quality of life for our men and women in uniform. It will give them the tools they need to remain the most effective fighting force in the world. And very importantly, it will send an important

message that we, as a nation, stand behind them and are deeply grateful for their service.

So we look forward to working with colleagues to pass this important legislation. Again, I thank Senator McCain for all he and his staff have done to bring this bill to the floor.

I yield the floor.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, on behalf of myself and Senator McCain, I send an amendment to the desk and ask for its immediate consideration.

Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. President, this amendment is the F-22 amendment, which would delete the $1.75 billion in the bill that was added in a very close vote in the Armed Services Committee, with strong opposition of the administration.

I may say that this is not the first administration that has attempted to end the F-22 line. President Bush also attempted to end this line at 183 planes.

Unless my friend from Arizona wants to speak, I will ask unanimous consent that the Senate recess until 1 p.m.

Mr. President, I ask unanimous consent that the Senate stand in recess until 1 p.m.

Madam President, the pending amendment Senator McCain and I have offered would strike the $1.75 billion that was added to the bill by a very close vote in committee to purchase additional F-22 aircraft that the military does not want, that the Secretary of Defense does not want, that the Chairman of the Joint Chiefs and all the Joint Chiefs do not want, that President Bush did not want, that the prior Chairman of the Joint Chiefs did not want, and they all say the same thing: The expenditure of these funds jeopardizes other programs which are important, and they provide aircraft we do not need.

These are fairly powerful statements from our leaders, both civilian and military leaders, in this country. I hope the Senate will heed them and reverse the action that was taken on a very close vote in the Armed Services Committee.

We received a few minutes ago a letter from the Secretary of Defense and the Chairman of the Joint Chiefs of Staff. A letter is on its way also from the President. When I get that letter, I will, of course, read the President's letter. But for the time being, let me start with the letter we have received from the Chairman of the Joint Chiefs, as well as the Secretary of Defense, because it is succinct. It is to the point. It states the case for not adding additional F-22s as well as anything I have seen.

Dear Senators Levin and McCain: We are writing to express

our strong objection to the provisions in the Fiscal Year

2010 National Defense Authorization Act allocating $1.75

billion for seven additional F-22s. I believe it is

critically important to complete the F-22 buy at 187--the

program of record since 2005, plus four additional aircraft.

There is no doubt that the F-22 is an important capability

for our Nation's defense. To meet future scenarios, however,

the Department of Defense has determined that 187 aircraft

are sufficient, especially considering the future roles of

Unmanned Aerial Systems and the significant number of 5th

generation Stealth F-35s coming on-line in our combat air

portfolio.

It is important to note that the F-35 is a half generation

newer aircraft than the F-22, and more capable in a number of

areas such as electronic warfare and combating enemy air

defenses. To sustain U.S. overall air dominance, the

Department's plan is to buy roughly 500 F-35s over the next

five years and more than 2,400 over the life of the program.

Furthermore, under this plan, the U.S. by 2020 is projected

to have some 2,500 manned fighter aircraft. Almost 1,100 of

them will be 5th generation F-35s and F-22s. China, by

contrast, is expected to have only slightly more than half as

many manned fighter aircraft by 2010, none of them 5th

generation.

The F-22 program proposed in the President's budget

reflects the judgment of two different Presidents, two

different Secretaries of Defense, three chairmen of the Joint

Chiefs of Staff, and the current secretary and chief of staff

of the Air Force.

If the Air Force is forced to buy additional F-22s beyond

what has been requested, it will

come at the expense of other Air Force and Department of

Defense priorities--and require deferring capabilities in

areas we believe are much more critical for our Nation's

defense.

The letter concludes with the following very pointed paragraph:

For all these reasons, we strongly believe that the time

has come to close the F-22 production line. If the Congress

sends legislation to the President that requires the

acquisition of additional F-22 aircraft beyond Fiscal Year

2009, the Secretary of Defense will strongly recommend he

veto it.

It is signed by Secretary of Defense Gates and the Chairman of the Joint Chiefs of Staff Mullen.

The determination of the Department of Defense to end the production of the F-22 is not new. Secretary Rumsfeld, President Bush, as well as the current President and Secretary of Defense and Chairman of the Joint Chiefs, are recommending the same thing. We have testimony on the record at the Armed Services Committee from the Chairman of the Joint Chiefs and the Vice Chairman of the Joint Chiefs, both urging us strongly to end the production of the F-22.

Let me read, first, Secretary Gates's testimony on May 14 of this year:

. . . [T]he fact is that the F-22 is not going to be the

only aircraft in the TACAIR arsenal, and it does not include

the fact that, for example, we are going to be building,

ramping up to 48 Reapers unmanned aerial vehicles in this

budget.

The F-35, he said, is critically important to take into account.

. . . and the fact is that based on the information given to

me before these hearings, the first training squadron for the

F-35 at Eglin Air Force Base is on track for 2011. The

additional money for the F-35 in this budget is to provide

for a more robust developmental and test program over the

next few years to ensure that the program does stay on the

anticipated budget.

You can say irrespective of previous administrations, but

the fact remains two Presidents, two Secretaries of Defense,

and three Chairmen of the Joint Chiefs of Staff have

supported the 183 build when you look at the entire TACAIR

inventory of the United States.

And when you look at potential threats, for example, in

2020, the United States will have 2,700 TACAIR. . . .

The Vice Chairman of the Joint Chiefs, General Cartwright, just a few days ago, on July 9, told the Senate Armed Services Committee the following:

I was probably one of the more vocal and ardent supporters

for the termination of the F-22 production. The reason's

twofold. First, there is a study in the Joint Staff that we

just completed and partnered with the Air Force on that,

number one, said that proliferating within the United States

military fifth-generation fighters to all three services was

going to be more significant than having them based solidly

in just one service, because of the way we deploy and because

of the diversity of our deployments.

Point number two is, in the production of the F-35 Joint

Strike Fighter, the first aircraft variant will support the

Air Force replacement of their F-16s and F-15s. It is a very

capable aircraft. It is 10 years newer--

He is referring here to the F-35--

It is 10 years newer in advancement in avionics and

capabilities in comparison to the F-22. It is a better, more

rounded, capable fighter.

He goes on relative to point No. 2:

. . . the second variant is the variant that goes to the

Marine Corps. The Marine Corps made a conscious decision to

forgo buying the F-18E/F in order to wait for the F-35. So

the F-35 variant that has the VSTOL capability, which goes to

the Marine Corps, is number two coming off the line. And the

third variant coming off the line is the Navy variant, the

carrier-suitable variant.

Another thing that weighed heavily, and certainly my

calculus, was the input of the combatant commanders. And one

of the highest issues of concern from the combatant

commanders is our ability to conduct electronic warfare. That

electronic warfare is carried on board the F-18. And so

looking at the lines we would have in hot production, number

one priority was to get fifth-generation fighters to all of

the services; number two priority was to ensure that we had a

hot-production line in case there was a problem; and number

three was to have that hot-production line producing the F-18

Gs which support the electronic-warfare fight.

General Cartwright concluded:

So those issues stacked up to a solid position . . . that

it was time to terminate the F-22. It is a good airplane. It

is a fifth-generation fighter. But we needed to proliferate

those fifth-generation fighters to all of the services. And

we need to ensure that we were capable of continuing to

produce aircraft for the electronic-warfare capability. And

that was the F-18. In the F-18 we can also produce front-line

fighters that are more than capable of addressing any threat

that we'll face for the next five to 10 years.

The letter to which I referred from President Obama has now been received. I know Senator McCain has received a similar letter. I will read the one I have just received:

Dear Senator Levin: I share with you a deep commitment to

protecting our Nation and the men and women who serve it in

the Armed Forces. Your leadership on national security is

unrivaled, and I value your counsel on these matters.

It is with this in mind that I am writing to you about S.

1390, the Senate Armed Services Committee-reported National

Defense Authorization Act for Fiscal Year 2010, and in

particular to convey my strong support for terminating

procurement of additional F-22 fighter aircraft when the

current multiyear procurement contract ends. As Secretary

Gates and the military leadership have determined, we do not

need these planes. That is why I will veto any bill that

supports acquisition of F-22s beyond the 187 already funded

by Congress.

In December 2004, the Department of Defense determined that

183 F-22s would be sufficient to meet its military needs.

This determination was not made casually. The Department

conducted several analyses which support this position based

on the length and type of wars that the Department thinks it

might have to fight in the future, and an estimate of the

future capabilities of likely adversaries. To continue to

procure additional F-22s would be to waste valuable resources

that should be more usefully employed to provide our troops

with the weapons that they actually do need.

He concludes:

I urge you to approve our request to end the production of

the F-22.

This is no longer a simple recommendation of the President's staff that they would make to the President should we add additional F- 22s. This is now clear. It is crystal clear, and there is no way a President of the United States can say more directly than President Obama has said this afternoon that he will veto any bill that supports acquisition of F-22s beyond the 187 already funded by Congress. That should clear the air on a very important issue, and that is would the President veto this bill if it contained the extra F-22s the military doesn't want or wouldn't he. That speculation is no longer out there. It is now resolved, and it ought to be resolved in our minds, and we ought to realize then that those who support the added F-22s are supporting a provision which, if it is included, will result in the veto of a bill which is critically important to the men and women of our military and to their missions and operations in Iraq and Afghanistan.

Madam President, not only does the amendment which was adopted by the committee on a very close vote add planes which our uniform--our military--and civilian leaders do not want, and say we do not need, but the amendment also pays for these additional F-22s in the following ways:

No. 1, it cuts operation and maintenance. No. 2, it cuts civilian pay funds that need to be available. No. 3, it also reduces the balances that have to be kept available for military personnel. And No. 4, it assumes that there are going to be near-term savings in fiscal year 2010 from the acquisition reform legislation that we recently adopted and the business process reengineering provision that is in the bill that was adopted by the Armed Services Committee.

Each of those places cannot afford those cuts. We are talking here about operations and maintenance. This is the readiness accounts of our Armed Forces. These are the pay accounts of our Armed Forces. And in the case of at least one of the four sources, the assumption is unwarranted that we are going to make savings this year from the acquisition reform legislation, the very focus of which was to make changes in acquisition reform in the short term, which may actually cost us money to save money--significant money--in the long term. But there is no assessment I know of that says we are going to make savings in 2010 from our acquisition reform legislation.

As the Presiding Officer knows, because she was a strong supporter of this acquisition reform, as were all of us on the Armed Services Committee, we believed very strongly that we had to make these changes in the way in which we acquire equipment and weapons. Senator McCain has been fighting this battle for as long as I can remember--change these acquisition reform procedures--and I have been involved for about as long as I can remember as well in these efforts. The Armed Services Committee put a lot of energy in the acquisition reform that we adopted

unanimously and was ultimately passed and signed by the President. But to say we can't make savings this year in no way knocks the importance of that acquisition reform or minimizes the importance of that acquisition reform. The fact is, as we said at the time, there are going to be major savings, we believe, from that reform, but they are not going to come in the short term. They are surely not coming in 2010. Yet the amendment which added the F-22s made an assumption that there are going to be savings in 2010 from the acquisition reform legislation.

Let me spend a minute on some of the other sources of funds for the F-22, unobligated balances for operations and maintenance--O&M. We already reduced by $100 million the funds in those accounts, and we did so consistent with the report and assessment of the Government Accountability Office. So we acted in a way that would not affect readiness, would not affect O&M, and we had the guidance there of the Government Accountability Office. But what the amendment did that added the F-22s is reduced by $700 million more those O&M accounts.

The original bill we adopted avoided cutting O&M funds from the Army and from the Marines because readiness rates across the board have continued to suffer after several years in combat. Yet half of the reduction made by the amendment which added the F-22s was assessed against O&M Army. It is a dangerous thing to do. It is an unwise thing to do.

We also now face an increase in the price of oil--an increase above what the accounts assumed would be the cost of energy. So we have an additional challenge to those O&M accounts which would be made far more difficult and those reductions far more problematic in that regard as well.

Another source of funds which was used to add the F-22s was in the civilian pay accounts. Civilian pay had already been reduced by almost $400 million in the Air Force, and we did that consistent with, again, the assessments of the Government Accountability Office. Further, civilian pay reductions of $150 million to help fund the F-22s can have a negative effect on readiness, and we simply cannot take that risk. Also, that cut does not take into effect the likely additional civilian pay raise that we will have to absorb in these budgets if, as is likely, using historical acts, Congress increases the civilian pay raise to match the increased military pay raise.

Deep cuts in funds available for civilian pay will have that effect, but also these cuts will undermine the Secretary's efforts and our efforts to hire significant numbers of new employees for the acquisition workforce, it is going to set back our effort to implement acquisition reform, and it is going to cost us a lot more money in the long run.

Another source of the money for the additional F-22s came from the military personnel accounts. Our bill already has taken $400 million in unobligated balances from the military personnel accounts in order to pay for additional personnel pay and benefits, and we did that, again, in line with the recommendation of the Government Accountability Office. The Department's top line, so called, for military personnel was intact until the committee adopted the F-22 increase amendment. And if we reduce military personnel accounts for nonpersonnel matters, it is going to result in a military personnel authorization that is less than was requested, and it is going to hinder the Department's ability to execute its military personnel funding in the year 2010. That is going to be particularly problematic this year, because the Army and Marine Corps have moved their increased end strengths to the base budget. They did that because we urged them to do that.

So the cost of personnel continues to rise, and yet one of the sources of the funding for the F-22 increase came from that very military personnel account.

There is another impact of the amendment--which was barely adopted in the Armed Services Committee--and that is it is going to cause the Department of Defense to cut back in so-called nondirect pay areas, such as bonuses or other personnel support measures, which could have a very significant impact--a negative impact--on the long-term management of the all-volunteer force. It is very likely that the Department will then have to either seek a reprogramming during the next fiscal year to cover personnel costs or they may even have to file a supplemental request.

We have worked hard as a Congress to get the administration--any administration, as we tried during the Bush years and we try again during the Obama years--to make sure that its budget request is solid; that it will not require reprogramming; that it will not require a supplemental request. With this amendment--which was again adopted by just two votes in the Armed Services Committee--we are jeopardizing that longstanding effort on the part of Congress to make sure that the budget request of the administration in fact is a realistic request when it comes to the various accounts. And particularly this year, as the Army and Marine Corps have moved their increased end strengths to the base budget, as we have pressed them to do for many years, it is a mistake for us to be taking funds from that account.

I have talked about acquisition reform and the fact that the amendment which was adopted in committee assumed savings from acquisition reform. I have pointed out, and will not repeat, that while the acquisition reform, strongly supported obviously by our committee and by the Congress, is likely to result in major savings, it cannot be assumed to produce savings in the short term.

I hope this body is going to adopt the Levin-McCain amendment. Two administrations now have made an effort to end the F-22 line. This is not a partisan issue. This is a Republican and a Democratic administration that have made this effort. Our top civilian leaders and our top uniform leaders are unanimous. The Secretary of Defense, Chairman of the Joint Chiefs, Vice Chairman of the Joint Chiefs have joined in supporting the President's request, just as they did President Bush's determination to end the F-22 line. We have to make some choices in this budget and in other budgets, and this is a choice which our military is urging us to make.

We all know the effect that this has on jobs in many of our States, and that varies from State to State, but probably a majority of our States will have some jobs impacted by a termination of the F-22 line. But we cannot continue to produce weapon systems forever. They have a purpose. They have a mission. And those missions and those purposes can be carried out by 187 F-22s. That is not me speaking as Chairman of the Armed Services Committee, that is not Senator McCain speaking as the ranking Republican on the Armed Services Committee, that is both of us saying that we must make difficult choices and we have to build the systems we need. The F-35 is a system which all of the services need. It cuts across the services. It has greater capabilities in electronics than does the F-22. It is a half of a generation advance on the F-22. This is not to minimize the importance of the F-22. We have and will have 187 in our inventory. While not minimizing the importance of the F-22, it points out how important it is that we modernize, and in order to do that--and that means the F-35--we have to at some point say we have enough F-22s. We tried it last year. We could not succeed last year. But this year, not only does the President oppose the increase, as did President Bush, President Obama has now said in writing today that he will veto a bill that contains the unneeded F- 22s.

Our men and women in the military deserve a defense authorization bill. This has a pay increase even larger than that requested. It has benefits that are essential. It has bonuses and other programs to help recruitment and retention. It helps our families. It modernizes our weapon systems. At some point, we have to acknowledge that a weapon system production, extremely valuable, has come to a logical end and that it is time to then pick up its continuity with a different plane, a different weapon system which will benefit our military and support the men and women in uniform.

I yield the floor.

Madam President, first, let me thank Senator McCain for his strong and very powerful statement about this amendment. I cannot remember a President ever saying in advance that if a specific provision in the Defense bill is included, he will veto it. Now, there may be such precedent. But this is what the stakes are here now. This is whether we are going to be supporting a bill that has essential provisions in it for the men and women of the military, including a significant pay raise and other important benefits, including support for our wounded warriors, including support for weapons systems they need.

I would hope that even those Senators who have indicated they would support the additional F-22s might reconsider their position in terms of what is involved in this bill for our men and women, given the President's statement that he will veto this bill.

I suggest the absence of a quorum.

I thank my friend from Arizona. The answer is, it will depend, I guess, on how many people wish to speak either in support of our amendment or in opposition to it and how long they want to speak. I do not have yet an indication of that.

I would be a little more optimistic even in the question. I am optimistic, and I would hope we would have a vote on this amendment by noon tomorrow.

I understand there will not be votes in the afternoon as previously agreed to. I hope prior to noon tomorrow we can have a vote on our amendment.

There are two or three things for which we hope our colleagues will come to the Chamber: One is to speak on this amendment; secondly, to speak generally about the bill. We have a number of colleagues on the committee who have worked so hard on this bill who do want to speak on it. I hope they will do that this afternoon. Third, we can begin to receive amendments that we might want to consider during this week. I hope we can finish this bill this week. That may be an optimistic goal, but it would be achievable if everybody cooperates and brings to us and our staffs amendments they are thinking about offering.

Madam President, let me thank Senator Lieberman for all the work he has done on our committee, for coming to the Chamber and setting out the parts of the bill he not only strongly supports but had a great deal of effort he put forth, with colleagues on the committee, to make happen. We are grateful for that. He also indicated where the differences are so we can begin to focus on some of the amendments we will need to consider this week. I hope other colleagues will follow his lead and come to the floor to indicate where they may be wanting to offer amendments so we can make progress. We are waiting for those notifications, and we very much appreciate it.

I thank him.

I see Senator Nelson on the Senate floor. I know he will be recognized next. Senator Nelson has a very important subcommittee into which he has put a huge amount of time. He is an invaluable member of our committee.

Madam President, when the Senator from Florida says the subcommittee has been active, it is a true understatement. It has been extremely active. It has been very creative. It has operated on a bipartisan basis under Senator Nelson's leadership. It is a very challenging position he holds as that subcommittee chair because of the subject matter, and I wish to thank him and commend him for all the great work he does.

I suggest the absence of a quorum.

Madam President, I ask unanimous consent that the order for the quorum call be rescinded.