Floor Statements

Mr. President, I rise to introduce the Los Angeles Residential Helicopter Noise Relief Act of 2011, which is cosponsored by Senator Boxer.

This legislation is very simple. It directs the Federal Aviation Administration to develop and enforce regulations to control helicopter noise and improve helicopter safety above Los Angeles.

FAA must complete the regulations within three years, in consultation with the local community, and it must include an exemption for public safety aircraft.

The bill is a companion to legislation with the same name introduced by Representative Berman.

This legislation is long overdue.

Under current law, helicopter pilots can and do fly practically wherever they want above Los Angeles, and no agency limits their activity.

The Federal Aviation Administration controls our Nation's airspace exclusively, but it imposes no restrictions on helicopter flight paths, elevation, or hovering.

If a helicopter wants to hover over a home in Los Angeles for an hour, it can.

One neighborhood leader told the New York Times this summer that he was afraid of complaining too loudly about the noise helicopters create because he feared helicopter operators would retaliate, legally, by parking over his house.

City officials and State agencies permit the location of helicopter landing pads, but they have absolutely no power to govern what the chopper does once it takes off. They can do nothing to discourage tourist pilots from flying low and banking hard for the promise of a tip.

Bottom Line: This is, for all intents and purposes, an unregulated industry.

This reality is increasingly frustrating to Los Angeles residents who are experiencing what many people say is the most intense period of helicopter use in memory.

Every day brings a steady swarm of helicopters buzzing above Southern California's bedroom communities in what many officials say are greater numbers than ever before.

There are media helicopters, traffic helicopters, tour helicopters, paparazzi and film crew helicopters, corporate helicopters and private commuter helicopters.

Downtown L.A. has a helicopter parking lot in the clouds; helipads lie atop nearly every skyscraper.

But the city's residents may have finally reached their breaking point in July, after two consecutive weekends of extreme helicopter noise.

First, the helicopters hovered for hours on end as Prince William and his new bride, Kate, settled into Hancock Park, a Los Angeles community.

Then, a week later, the helicopters monitoring the impact of closing Interstate 405 were even worse.

Los Angeles resident Sue Rosen told the New York Times that there were, at any given time, at least five helicopters hovering over her house watching the 405. ``The noise was nerve-wracking,'' she said. ``The house was vibrating.''

The same week, a helicopter thumped loudly above the Hollywood Bowl at the exact moment Gustavo Dudamel was leading the Los Angeles Philharmonic through the adagio in the overture to Mozart's ``Abduction From the Seraglio.''

Although the Hollywood Bowl has worked aggressively with helicopter operators to establish a voluntary no-fly zone during concert nights, they have no power to enforce it, and pilots ignore it.

Noise from helicopters above the Hollywood bowl has been so loud some years that the Symphony had to stop playing.

As one pilot explained: the Hollywood Bowl managers ``are always calling the towers telling them to get us away. But they can't do anything.'' Only FAA can act.

Only the FAA has the authority to improve the lives of millions of Californians bothered by helicopters by establishing common sense rules that increase safety and reduce noise.

But to date, FAA leaders have ignored this problem. In fact, FAA has not even tracked noise and annoyance complaints.

This bill directs the FAA to take this matter seriously.

FAA would be required to bring about safer, more pleasant skies above Los Angeles in cooperation with the local communities.

The air above our cities is a common Federal resource that only Congress has the power to protect, and today the air above Los Angeles is polluted with helicopter noise.

This is therefore a very important bill for the quality of life in America's second largest city.

I hope my colleagues will support this legislation and work with us to enact it as part of FAA reauthorization.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I rise to introduce the Los Angeles Residential Helicopter Noise Relief Act of 2011, which is cosponsored by Senator Boxer.

This legislation is very simple. It directs the Federal Aviation Administration to develop and enforce regulations to control helicopter noise and improve helicopter safety above Los Angeles.

FAA must complete the regulations within three years, in consultation with the local community, and it must include an exemption for public safety aircraft.

The bill is a companion to legislation with the same name introduced by Representative Berman.

This legislation is long overdue.

Under current law, helicopter pilots can and do fly practically wherever they want above Los Angeles, and no agency limits their activity.

The Federal Aviation Administration controls our Nation's airspace exclusively, but it imposes no restrictions on helicopter flight paths, elevation, or hovering.

If a helicopter wants to hover over a home in Los Angeles for an hour, it can.

One neighborhood leader told the New York Times this summer that he was afraid of complaining too loudly about the noise helicopters create because he feared helicopter operators would retaliate, legally, by parking over his house.

City officials and State agencies permit the location of helicopter landing pads, but they have absolutely no power to govern what the chopper does once it takes off. They can do nothing to discourage tourist pilots from flying low and banking hard for the promise of a tip.

Bottom Line: This is, for all intents and purposes, an unregulated industry.

This reality is increasingly frustrating to Los Angeles residents who are experiencing what many people say is the most intense period of helicopter use in memory.

Every day brings a steady swarm of helicopters buzzing above Southern California's bedroom communities in what many officials say are greater numbers than ever before.

There are media helicopters, traffic helicopters, tour helicopters, paparazzi and film crew helicopters, corporate helicopters and private commuter helicopters.

Downtown L.A. has a helicopter parking lot in the clouds; helipads lie atop nearly every skyscraper.

But the city's residents may have finally reached their breaking point in July, after two consecutive weekends of extreme helicopter noise.

First, the helicopters hovered for hours on end as Prince William and his new bride, Kate, settled into Hancock Park, a Los Angeles community.

Then, a week later, the helicopters monitoring the impact of closing Interstate 405 were even worse.

Los Angeles resident Sue Rosen told the New York Times that there were, at any given time, at least five helicopters hovering over her house watching the 405. ``The noise was nerve-wracking,'' she said. ``The house was vibrating.''

The same week, a helicopter thumped loudly above the Hollywood Bowl at the exact moment Gustavo Dudamel was leading the Los Angeles Philharmonic through the adagio in the overture to Mozart's ``Abduction From the Seraglio.''

Although the Hollywood Bowl has worked aggressively with helicopter operators to establish a voluntary no-fly zone during concert nights, they have no power to enforce it, and pilots ignore it.

Noise from helicopters above the Hollywood bowl has been so loud some years that the Symphony had to stop playing.

As one pilot explained: the Hollywood Bowl managers ``are always calling the towers telling them to get us away. But they can't do anything.'' Only FAA can act.

Only the FAA has the authority to improve the lives of millions of Californians bothered by helicopters by establishing common sense rules that increase safety and reduce noise.

But to date, FAA leaders have ignored this problem. In fact, FAA has not even tracked noise and annoyance complaints.

This bill directs the FAA to take this matter seriously.

FAA would be required to bring about safer, more pleasant skies above Los Angeles in cooperation with the local communities.

The air above our cities is a common Federal resource that only Congress has the power to protect, and today the air above Los Angeles is polluted with helicopter noise.

This is therefore a very important bill for the quality of life in America's second largest city.

I hope my colleagues will support this legislation and work with us to enact it as part of FAA reauthorization.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I thank the Senator from Illinois for his very eloquent remarks; also, the Senator from Colorado, Mr. Udall, whom I had the pleasure of hearing from my office. I think they have encapsulated the situation we find ourselves in very well.

Mr. President, I wish to follow up on the detention authorities in the Defense Authorization bill and announce that today I am introducing legislation to clearly state that citizens apprehended in the United States shall not be indefinitely detained by the military.

This new legislation is called the Due Process Guarantee Act of 2011. I am joined by Senator Leahy, the chairman of the Judiciary Committee, to which this bill will go, Senator Lee, a member of that committee, Senator Kirk, Senator Mark Udall, Senator Paul, Senator Coons, and Senator Gillibrand. I thank them for being original cosponsors of this bipartisan legislation.

In sum, the Due Process Guarantee Act we are introducing will add to another major law called the Non-Detention Act of 1971, which clearly stated:

No citizen shall be imprisoned or otherwise detained by the

United States except pursuant to an act of Congress.

The new legislation we intend to introduce will amend this Non- Detention Act to provide clearly that no military authorization authorizes the indefinite detention without charge or trial of U.S. citizens who are apprehended domestically. It also codifies a ``clear statement rule'' that requires Congress to expressly authorize detention authority when it comes to U.S. citizens and lawful permanent residents for all military authorizations and similar authorities.

We cannot limit the actions of future Congresses, but we can provide that if they intend to limit the fundamental rights of U.S. citizens, they must say so clearly and explicitly.

I am very pleased to add that Senator Durbin will also cosponsor this legislation.

Lawful permanent residents are included in this bill we will introduce because they have the same due process protections as citizens under the Constitution. In this bill, the protections for citizens and lawful permanent residents is limited to those ``apprehended in the United States,'' excluding citizens who take up arms against the United States on a foreign battlefield.

I strongly believe constitutional due process requires that U.S. citizens apprehended in the United States should never be held in indefinite detention. That is what this legislation would accomplish, so I look forward to working with my colleagues, especially Chairman Leahy on the Judiciary Committee, to move this bill forward.

I note the Senator from Illinois, Senator Kirk, is on the floor of the Senate to speak about this bill as well.

Our current approach to handling these suspects in Federal criminal courts has produced a strong record of success since the 9/11 attacks. We would be wise to follow the saying, ``If it ain't broke, don't fix it.''

Our system is not broken. We thwarted attempted terrorist acts. We have captured terrorists, interrogated them, retrieved actionable intelligence from them, prosecuted them, and locked them up for lengthy sentences--in most cases for the rest of their lives.

Both Senator Udall and Senator Durbin pointed out Director Mueller's testimony before the Judiciary Committee yesterday. This is relevant because it had been said that the Director of the FBI was satisfied with the language of the conference report of the Defense authorization bill. When Director Mueller was asked the question yesterday, Are you satisfied with the language, in so many words, he said, not quite. To quote him, Director Mueller said:

Given the statute the way it is now, it doesn't give me a

clear path to certainty as to what is going to happen when

arrests are made in a particular case.

He warned:

The possibility looms that we will lose opportunities to

obtain cooperation from the persons in the past that we've

been fairly successful in gaining.

I am concerned about how these provisions will be implemented once they are enacted into law, so I will be watching carefully to ensure that they do not jeopardize our national security.

Finally, I want to explain, as the sponsor of the Feinstein compromise amendment, No. 1456, that the Defense authorization bill should not be read to authorize indefinite detention of U.S. citizens captured inside the United States or abroad, lawful resident aliens of the United States captured inside our country or abroad, or any other persons who are captured or arrested in the United States.

On page 655 of the conference report, the compromise amendment, No. 1456, that passed the Senate by a vote of 99 to 1, reads this way, and this is in the conference report of the Defense authorization bill:

Nothing in this section shall be construed to affect

existing law or authorities relating to the detention of

United States citizens, or lawful resident aliens of the

United States, or any other persons who are captured or

arrested in the United States.

What does this mean? This means we have agreed to preserve current law for the three groups specified, as interpreted by our Federal courts, and to leave to the courts the difficult questions of who may be detained by the military, for how long, and under what circumstances.

And the Due Process Guarantee Act will clarify that citizens and lawful permanents cannot be detained without charge or trial if they are apprehended domestically.

I interpret current law to permit the detention of U.S. citizens as ``enemy combatants,'' consistent with the laws of war, only in the very narrow circumstance of a citizen who has taken an active part in hostilities against the United States and is captured outside the United States in an area of ``active combat operations,'' such as the battlefields of Afghanistan. This was the Supreme Court's narrow holding in Hamdi v. Rumsfeld in 2004.

I am sorry to say that Hamdi has been mischaracterized in this body. Whether Congress should grant the President more expansive powers of detention or act to curtail the powers identified by the Supreme Court in Hamdi is a question that Congress will continue to debate in the future. And we introduced the Due Process Guarantee Act to help clarify current law: that citizens and lawful permanents cannot be detained without charge or trial if they are apprehended domestically.

I would like to point out the errors in the legal analysis by those who would interpret current law, or this Defense Authorization Act, to authorize the indefinite detention of U.S. citizens without charge or trial, irrespective of where they are captured or under what circumstances.

Let's turn to the Supreme Court's 2004 opinion in Hamdi v. Rumsfeld, which has been incorrectly cited by others for the proposition that the 2001 AUMF permits indefinite detention of American citizens regardless of where they are captured.

Hamdi involved a U.S. citizen, Yaser Esam Hamdi, who took up arms on behalf of the Taliban and was captured on the battlefield in Afghanistan and turned over to U.S. forces. The Supreme Court's opinion in that case was a muddled decision by a four-vote plurality that recognized the power of the government to detain U.S. citizens captured in such circumstances as ``enemy combatants'' for some period, but otherwise repudiated the government's broad assertions of executive authority to detain citizens without charge or trial.

In particular, the Court limited its holding to citizens captured in an area of ``active combat operations'' and concluded that even in those circumstances, the U.S. Constitution and the due process clause guarantees U.S. citizens certain rights, including the ability to challenge their enemy combatant status before an impartial judge. The plurality's opinion stated:

It [the Government] has made clear, however, for the

purposes of this case, the ``enemy combatant'' that it [the

Government] is seeking to detain is an individual who, it

alleges, was ``part of or supporting forces hostile to the

United States or coalition partners'' in Afghanistan, and

who ``engaged in an armed conflict against the

United States'' there. Brief for Respondents 3.

That was all a quote from the plurality opinion, and it continues:

We therefore answer only the narrow question before us:

whether the detention of citizens falling within that

definition is authorized.

The opinion goes on to say at page 517:

We conclude that the AUMF is explicit congressional

authorization for the detention of individuals--

And here it is--

in the narrow category we describe. . . . And the narrow

category they describe is one who is part of forces hostile

to the U.S. on the battlefield of Afghanistan. Indeed, the

plurality later emphasized that it was discussing a citizen

captured on the battlefield. In responding to Justice

Scalia's dissenting opinion, the plurality opinion says:

Justice Scalia largely ignores the context of this case: a

United States citizen captured in a foreign combat zone.

The plurality italicized and emphasized the word ``foreign'' in that sentence.

Thus, to the extent the Hamdi case permits the government to detain a U.S. citizen until the end of hostilities, it does so only under a very limited set of circumstances; namely, citizens taking an active part in hostilities who are captured in Afghanistan and who are afforded certain due process protections, at a minimum.

It is also worth noting that amid lingering legal uncertainty regarding whether the government had the authority to detain Hamdi, the Government--this was the Bush administration--saw this and released Hamdi to Saudi Arabia on the condition that he relinquish his U.S. citizenship.

As a result, I don't regard the Supreme Court's decision in Hamdi as providing any compelling support for broad assertions of legal authority to detain U.S. citizens without trial. Certainly, the case provides no support for the indefinite detention of citizens captured inside the United States.

Let me go back to something. In 1971, the Congress passed, and Richard Nixon signed into law, a Non-Detention Act to preclude this very possibility. That act was intended in large measure to put the wrongs of Japanese internment during World War right. It provides simply:

No citizen shall be imprisoned or otherwise detained by the

United States except pursuant to an act of Congress.

I very much agree with the Second Circuit Court of Appeals, which held in the case of Padilla v. Rumsfeld that:

[W]e conclude that clear congressional authorization is

required for detentions of American citizens on American soil

because . . . the Non-Detention Act . . . prohibits such

detentions absent specific congressional authorization.

The Second Circuit went on to say that the 2001 AUMF ``is not such an authorization and no exception to [the Non-Detention Act] otherwise exists.''

The Fourth Circuit came to a different conclusion when it took up Padilla's case, but its analysis turned entirely on disputed claims that ``Padilla associated with forces hostile to the U.S. Government in Afghanistan'' and, ``like Hamdi,'' and this is a quote, ``Padilla took up arms against United States forces in that country in the same way and to the same extent as did Hamdi.''

To help resolve this apparent dispute between the circuits, I believe we need to pass the Due Process Guarantee Act that my cosponsors and I are introducing today.

I would like to add Senator Bill Nelson of Florida as a cosponsor.

This is important. We spent about half a day on this floor discussing this with Senator Levin, with Senator McCain, in the cloakroom with Senators Lee and Paul, as well as with a whole host of staff both from the Armed Services Committee as well as the Intelligence and Judiciary Committees. Here is the conclusion: I, and many of my colleagues and legal scholars, believe neither the AUMF nor the provisions of the National Defense Authorization Act that we are considering today constitute such an express authorization to detain American citizens.

As I previously mentioned, I sponsored compromise amendment No. 1456 to the Defense bill when it passed the Senate and that amendment has now become section 1021(e) of the conference report specifically to prevent misrepresentations from providing Congressional intent to support the detention of Americans.

Ex parte Quirin is a 1942 Supreme Court case that upheld the jurisdiction of a U.S. military tribunal that tried several German saboteurs captured inside the United States during World War II and brought to stand trial before the hastily convened military tribunal.

One of the saboteurs, Herbert Hans Haupt, was a U.S. citizen. However, the question at issue in Quirin was not whether a U.S. citizen captured inside the United States could be held indefinitely under the laws of war without trial, but rather, whether such an individual could be held in detention for a matter of weeks pending trial by military commission.

Haupt was, in fact, tried, convicted and sentenced to death within weeks after his capture. Moreover, the Quirin opinion predates the Geneva Conventions, a milestone of rather substantial significance in the development of the law of war, and the decision also predates the Non-Detention Act of 1971.

As Justice Scalia said in his dissent in Hamdi: ``[Quirin] was not [the Supreme] Court's finest hour.''

The only recent case of a U.S. citizen captured inside the United States and held as an enemy combatant under the law of war is that of Jose Padilla.

However, amid considerable legal controversy regarding the legality of his detention, Padilla was ultimately transferred out of military custody and tried and convicted in a civilian court.

Padilla, a U.S. citizen, was arrested in Chicago on May 8, 2002 on suspicion of plotting a dirty bomb attack in the United States. He was initially detained pursuant to a material witness warrant based on the 9/11 terrorist attacks.

On June 9, 2002, two days before a Federal judge was to rule on the validity of continuing to hold Padilla under the material witness warrant, President Bush designated him an ``enemy combatant'' and transferred him to a military prison in South Carolina for detention pursuant to the law of war without charge or trial.

Padilla subsequently filed a petition for a writ of habeas corpus in Federal court challenging the legality of his continued detention and an extended series of appeals ensued.

Facing an impending Supreme Court challenge and mounting public criticism for holding a U.S. citizen arrested inside the U.S. as an enemy combatant, President Bush ordered Padilla transferred to civilian custody to face criminal conspiracy and material support for terrorism charges in Federal court. The criminal charges against Padilla were not, however, related to Padilla's alleged involvement in a dirty bomb plot, which had been the basis for his prior detention as an enemy combatant.

Padilla was subsequently convicted and sentenced to 17 years in prison. That 17-year sentence has since been vacated and is under reconsideration. Thus, the Padilla case is at best inconclusive as to the President's authority to detain a citizen captured inside the United States as an ``enemy combatant.'' More likely, it evidences the folly of such overreaching assertions of Executive power.

Despite my longstanding opposition to the detention provisions in this bill, I will be voting yes on this important legislation. The main reason I support the defense authorization bill is because it ensures our troops deployed around the world--especially those in Afghanistan-- have the equipment, resources, and training they need to defend this Nation.

I wish to sum up by quoting Justice Sandra Day O'Connor, writing for the plurality in Hamdi. Here is what she wrote:

As critical as the Government's interest may be in

detaining those who actually pose an immediate threat to the

national security of the United States during ongoing

international conflict, history and common sense teach us

that an unchecked system of detention carries the potential

to become a means for oppression and abuse of others who do

not present that sort of threat.

This is what Senator Kirk, Senator Lee, Senator Paul, and those of us on the Democratic side who have worked on this truly believe. What about the person captured on the corner who looks a certain way, who gets picked up and put into detention? Does that

person have the right to a charge and to a trial? Our system of due process and the Constitution of the United States say, simply, yes.

I look forward to working with my colleagues to pass the due process guarantee bill.

I wish to defer to the distinguished Senator from Illinois, Senator Kirk.

Mr. President, I rise today to introduce legislation that will help stop criminals from exploiting the Internet to illegally sell prescription drugs. I am pleased to be joined in this effort by Senator Sessions, Senator Schumer, and Senator Cornyn.

I first became concerned about the issue of illegitimate online pharmacies in 2001, when one of my constituents, high school student Ryan Haight, died from an overdose of the controlled substance Vicodin. He had purchased the Vicodin from a rogue online pharmacy after simply filling out an online questionnaire in which he described himself as a 25-year-old male suffering from chronic back pain. The doctor prescribing the drug never met or personally examined Ryan.

Ryan's death was a terrible tragedy. He was a remarkable young man, an honors student and an athlete. He looked forward to going to college. Instead, his life was cut short.

In response, I introduced legislation, beginning in 2004, to better regulate

the online sale of prescription drugs that are controlled substances.

In 2008, the Ryan Haight Online Pharmacy Consumer Protection Act, Ryan Haight Act, was enacted into law, and it became effective in April 2009. Senator Sessions was the lead cosponsor on that legislation.

The Ryan Haight Act makes it a violation of the Controlled Substances Act to dispense a prescription for a controlled substance by means of the Internet without a practitioner having conducted at least one in- person medical evaluation of the purchaser. The act also requires online pharmacies to register with the Drug Enforcement Administration, DEA, and comply with DEA regulations.

The Ryan Haight Act has helped to prevent illegitimate online sales of prescribed controlled substances. However, illegitimate online sellers continue to sell other types of prescription drugs, and stronger laws are needed to stop them.

The sale of prescription drugs online by web sites acting unlawfully is a dangerous and widespread problem. The National Association of Boards of Pharmacy and other non-profit organizations that monitor the Internet have consistently found that about 96 percent of all Internet pharmacies don't require a prescription, aren't appropriately licensed, and sell unregulated drugs.

Theses illegitimate online pharmacies continue to cause serious harm. The National Association of Boards of Pharmacy reports that from the start of its Internet Drug Outlet Identification Program in April 2008, it has received 509 customer inquiries about online prescription drug sellers, and 21 of those customers have reported injuries. Some of these injuries were very serious leading to hospitalization, with customers suffering worsening symptoms caused by the ailment the medications were intended to treat, as well as severe side effects.

The easy accessibility of prescription drugs through illegitimate online drug sellers also contributes to a growing prescription drug abuse problem. A study published in the May 2011 edition of the Journal of Health Affairs suggests that the growth in high-speed Internet access has fueled prescription drug abuse. Conducted by investigators from Massachusetts General Hospital and the University of Southern California, the study found that, over a 7-year period, States with the greatest expansion in high-speed Internet access also had the largest increase in admissions for treatment of prescription drug abuse.

We should be particularly concerned about this problem when it comes to young people, who are frequently online unsupervised and vulnerable to rogue drug sellers on the Internet.

Not surprisingly, there is also a significant amount of fraud associated with illegitimate online drug sellers. Some of these websites simply take money without providing anything in return.

Web sites that dispense counterfeit drugs are an even more dangerous problem. These counterfeit drugs are frequently manufactured in unsanitary conditions and may contain contaminated ingredients, or the wrong ingredients. A recent CBS News story found that counterfeit drugs can contain paint, floor wax, and boric acid. So, instead of the appropriate medicine needed for their health problem, online consumers are receiving substances that may harm or even kill them.

The legislation I am introducing today will address these problems, and help stop illegitimate online drug sellers.

There are two main components to the legislation. First, it amends the Food, Drug and Cosmetic Act to add a definition of ``valid prescription,'' requiring at least one in-person medical evaluation of the patient. This is the same approach taken in the Ryan Haight Act with prescription drugs that are controlled substances. It will prevent illegitimate online pharmacies from selling drugs over the Internet with sham prescriptions.

The second critical element is the establishment, by the Food and Drug Administration, of a registry of legitimate online pharmacy websites. This will protect consumers who will know that they are dealing with lawful online pharmacies and help law enforcement crack down on the illegitimate websites.

The exploitation of the Internet by rogue online drug sellers continues to be a dangerous and deadly problem and we should not wait for more lives to be lost or ruined before we act.

Consumers deserve access to safe and legitimate online pharmacies and protection from illegitimate websites that sell counterfeit or otherwise illegitimate medication, and I urge my colleagues to support this legislation.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I rise today to introduce legislation that will help stop criminals from exploiting the Internet to illegally sell prescription drugs. I am pleased to be joined in this effort by Senator Sessions, Senator Schumer, and Senator Cornyn.

I first became concerned about the issue of illegitimate online pharmacies in 2001, when one of my constituents, high school student Ryan Haight, died from an overdose of the controlled substance Vicodin. He had purchased the Vicodin from a rogue online pharmacy after simply filling out an online questionnaire in which he described himself as a 25-year-old male suffering from chronic back pain. The doctor prescribing the drug never met or personally examined Ryan.

Ryan's death was a terrible tragedy. He was a remarkable young man, an honors student and an athlete. He looked forward to going to college. Instead, his life was cut short.

In response, I introduced legislation, beginning in 2004, to better regulate

the online sale of prescription drugs that are controlled substances.

In 2008, the Ryan Haight Online Pharmacy Consumer Protection Act, Ryan Haight Act, was enacted into law, and it became effective in April 2009. Senator Sessions was the lead cosponsor on that legislation.

The Ryan Haight Act makes it a violation of the Controlled Substances Act to dispense a prescription for a controlled substance by means of the Internet without a practitioner having conducted at least one in- person medical evaluation of the purchaser. The act also requires online pharmacies to register with the Drug Enforcement Administration, DEA, and comply with DEA regulations.

The Ryan Haight Act has helped to prevent illegitimate online sales of prescribed controlled substances. However, illegitimate online sellers continue to sell other types of prescription drugs, and stronger laws are needed to stop them.

The sale of prescription drugs online by web sites acting unlawfully is a dangerous and widespread problem. The National Association of Boards of Pharmacy and other non-profit organizations that monitor the Internet have consistently found that about 96 percent of all Internet pharmacies don't require a prescription, aren't appropriately licensed, and sell unregulated drugs.

Theses illegitimate online pharmacies continue to cause serious harm. The National Association of Boards of Pharmacy reports that from the start of its Internet Drug Outlet Identification Program in April 2008, it has received 509 customer inquiries about online prescription drug sellers, and 21 of those customers have reported injuries. Some of these injuries were very serious leading to hospitalization, with customers suffering worsening symptoms caused by the ailment the medications were intended to treat, as well as severe side effects.

The easy accessibility of prescription drugs through illegitimate online drug sellers also contributes to a growing prescription drug abuse problem. A study published in the May 2011 edition of the Journal of Health Affairs suggests that the growth in high-speed Internet access has fueled prescription drug abuse. Conducted by investigators from Massachusetts General Hospital and the University of Southern California, the study found that, over a 7-year period, States with the greatest expansion in high-speed Internet access also had the largest increase in admissions for treatment of prescription drug abuse.

We should be particularly concerned about this problem when it comes to young people, who are frequently online unsupervised and vulnerable to rogue drug sellers on the Internet.

Not surprisingly, there is also a significant amount of fraud associated with illegitimate online drug sellers. Some of these websites simply take money without providing anything in return.

Web sites that dispense counterfeit drugs are an even more dangerous problem. These counterfeit drugs are frequently manufactured in unsanitary conditions and may contain contaminated ingredients, or the wrong ingredients. A recent CBS News story found that counterfeit drugs can contain paint, floor wax, and boric acid. So, instead of the appropriate medicine needed for their health problem, online consumers are receiving substances that may harm or even kill them.

The legislation I am introducing today will address these problems, and help stop illegitimate online drug sellers.

There are two main components to the legislation. First, it amends the Food, Drug and Cosmetic Act to add a definition of ``valid prescription,'' requiring at least one in-person medical evaluation of the patient. This is the same approach taken in the Ryan Haight Act with prescription drugs that are controlled substances. It will prevent illegitimate online pharmacies from selling drugs over the Internet with sham prescriptions.

The second critical element is the establishment, by the Food and Drug Administration, of a registry of legitimate online pharmacy websites. This will protect consumers who will know that they are dealing with lawful online pharmacies and help law enforcement crack down on the illegitimate websites.

The exploitation of the Internet by rogue online drug sellers continues to be a dangerous and deadly problem and we should not wait for more lives to be lost or ruined before we act.

Consumers deserve access to safe and legitimate online pharmacies and protection from illegitimate websites that sell counterfeit or otherwise illegitimate medication, and I urge my colleagues to support this legislation.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I am very pleased to rise today in support of the Senate's passage of the Intelligence Authorization Act of Fiscal Year 2012. I understand that the House of Representatives intends to consider this legislation on the suspension calendar later this week, so it should be enacted prior to the end of this session.

This will be the third time in less than 15 months that the Congress will enact an intelligence authorization bill--including bills for fiscal years 2010, 2011, and 2012--after a 6 year hiatus in passing such legislation. What this means is that Congress, through the Senate and House Intelligence Committees, is restoring oversight over the intelligence community and fulfilling our responsibility to thoroughly examine intelligence policies and budgets.

Unlike the last two authorization bills, this bill was completed contemporaneously with, instead of after, the appropriations process that funds intelligence efforts. The classified annex to this legislation authorizes appropriations for intelligence activities and has helped guide the work of the appropriations committees as they considered intelligence spending. The days when the intelligence community can bypass the intelligence committees and deal solely with the appropriations committees are over.

Since receiving the President's budget request for the intelligence community in February, the Intelligence Committee has recognized that the massive increase in intelligence spending over the past decade has come to an end. Our original bill, reported to the Senate in August of this year, reduced intelligence spending below the President's request. Since then, we have worked closely with the House Intelligence Committee, the Senate Appropriations Committee, and the executive branch to reflect the spending reductions set in the Budget Control Act of 2011. The legislation we are approving today keeps funding for intelligence essentially flat from fiscal year 2011, representing the a meaningful reduction from the President's request.

As we look to 2013, many more difficult decisions will need to be made to make further reductions to intelligence spending. It is my belief that real reductions in intelligence spending can be accomplished without sacrificing capability, but this will require a rigorous review and the executive branch being more forthcoming than it has been to date about where it believes cuts are possible.

Of course, the bill also provides significant legislative provisions to give the intelligence community the authorities and flexibilities it needs to continue protecting our national security and providing policymakers the information they need to make foreign policy and security decisions; and other provisions for the effective and appropriate functioning of our intelligence apparatus.

I note that passage of the last intelligence authorization bill occurred shortly after the strike leading to the death of Usama bin Laden in Abbottabad, Pakistan. Since then, the intelligence community has had continued success in tracking and removing terrorist threats to the United States. Senior leaders and commanders of al-Qaida, including all of its affiliate groups as well as militant organizations involved in the Afghan war, have been removed from the fight, and terrorist plots and plotting have been disrupted. Among them, a plot to kill the Saudi Ambassador to the United States was thwarted due to the skillful and cooperative efforts of the FBI, DEA, CIA, and others.

Intelligence has factored into significant policy decisions and U.S. actions, including with respect to interdicting the proliferation of weapons, setting economic sanctions, protecting ISAF forces in Afghanistan, blocking cyber attacks against our government and certain critical infrastructure companies, and contributing to the NATO effort in Libya.

It is my hope that the provisions in this bill will continue to aid the intelligence community as it conducts its missions; ensure better stewardship of taxpayer dollars; and support its thousands of civilians and military employees.

Among other things, this bill includes: A section that provides for burial allowances for intelligence employees killed in the line of duty, similar to those for members of the U.S. military; New procurement authorities that enable intelligence agencies to protect against supply chain risk to information technologies; a measure authorizing new accounts at the Department of Treasury that will enable defense intelligence agencies to become financially auditable; Provisions that strengthen congressional oversight of the transfer of detainees from Guantanamo Bay; a section that will improve the accuracy of intelligence community cost estimates; and Provisions that provide the Director of National Intelligence with needed personnel management authorities.

As I noted, the bill contains a 275-page classified schedule and annex that authorizes intelligence funding and implements the committee's oversight findings over the past year. That annex is available to all Senators in the intelligence committee's offices.

Mr. President, let me note my sincere appreciation for the close collaboration of Senator Chambliss, the vice chairman of the committee, throughout the legislative process. He and his staff--in particular Martha Scott Poindexter and Jacqueline Russell--have continued the bipartisan approach that the committee followed in the last Congress, and we have together agreed to every provision in the bill.

As can be imagined, it has taken enormous effort to produce a third bill in such a short time frame. I sincerely thank the efforts of the staff to review the President's requested funding levels and legislative provisions, to draft legislation, and to negotiate a final product. In particular, I thank Lorenzo Goco, the Deputy Staff Director who has overseen the legislative efforts, Michael Davidson, the general counsel of the Senate Intelligence Committee until this past Labor Day, and Christine Healey, who has carried the load of the legislative work throughout and who replaced Mr. Davidson as general counsel. I also extend my appreciation for the work of Eric Losick and Mike Buchwald, majority counsel on the Committee, and Jack Livingston and Kathleen Rice, the minority counsel.

Similarly, the Committee's budget staff has worked diligently and expertly in their preparation of the classified annex to this bill and in working with intelligence agencies to understand and guide their efforts. I thank the committee's budget director, Peggy Evans, and the budget staff through this period: Hayden Milberg, Randy Bookout, Andrew Kerr, John Dickas, Paul Matulic, Matt Pollard, Amy Hopkins, Jamal Ware, Iram Ali, Jeffrey Howard, Andy Grotto, Jim Smythers, Brian Miller, Eric Chapman, John Maguire, Tyler Stephens, Evan Gottesman, Brian Walsh, Ryan Tully, and Christian Cook.

I also appreciate the work and relationship with Chairman Rogers and Ranking Member Ruppersberger of the House Permanent Select Committee on Intelligence. The version of the legislation approved today builds on the House legislation, and our two committees have consulted closely throughout this process. We held a joint open hearing on the tenth anniversary of the September 11, 2011, attacks and I look forward to continuing to work together next year to enact the fiscal year 2013 intelligence authorization bill.

Let me also note my appreciation for two other Senate committees. The Senate Appropriations Subcommittee on Defense has closely followed our authorizations as it drafted its appropriations bill. This underscores the work done in our bill, and limits to a minimum the cases where the authorization and appropriations levels do not match.

We have also worked over the past week with the Senate Armed Services Committee to include language in the classified annex to this bill concerning the Military Intelligence Program and a military construction program authorized for the National Security

Agency. The Armed Services Committee and the Intelligence Committee both exercise jurisdiction over military construction projects with intelligence funding; in this instance, the two committees have both included authorizations for the High Performance Computing Center II, and have jointly agreed to the language included in this annex.

Finally, Mr. President, I note that while there is no committee report or conference report associated with the text that we are approving today, the Intelligence Committee issued a report to accompany the bill it reported to the Senate in August. As the legislation has changed since House passage of its authorization bill and consideration today of this amendment, I ask unanimous consent to have printed in the Record a section-by-section analysis of the legislation so as to provide for the legislative history needed to explain the authors' intent and better clarify the effects of the provisions included.

Mr. President, I yield the floor.

Mr. President, I rise today to speak about the importance of the Hoover Power Allocation Act of 2011, of which I am a cosponsor.

This legislation passed the Congress after a multiyear effort led by Senator Harry Reid, the bill's lead author, and I thank him for his work.

Upon enactment, Californians will be able to continue buying Hoover Dam's power at the cost of production for the next 50 years.

The legislation allows the people of southern California whose local governments and utilities signed the 50-year contracts that made building Hoover Dam possible to receive 56 percent of the energy produced by the dam for another five decades.

For the people of my State, the Hoover Dam has been a consistent supply of affordable, pollution-free power for decades. The Hoover Dam is one of the largest power plants in the United States, with a capacity of 2,080 megawatts approximately the size of each of California's nuclear powerplants.

Its average production between 1999 and 2008 was about 4.2 billion kilowatt-hours per year, approximately 2.4 billion kilowatt hours of which goes to southern Californians who buy their power from Southern California Edison, the Los Angeles Department of Water and Power, or members of the Southern California Public Power Agency.

Hoover's power also plays an essential role moving water into parched and populous southern California.

The Metropolitan Water District uses Hoover's power to move its 550,000 acrefeet annual allocation of water from the Colorado River, over five desert mountain ranges, to Los Angeles.

Without Hoover's power, the Metropolitan Water District's cost of moving that water would be inordinately more expensive.

And if California rate payers had to buy that much power at market rates instead of Hoover Dam's 2.5 cents per kilowatt hour cost of production, it would cost approximately $180 million more each year.

And that power would likely come from dirtier, more distant sources, including coal plants.

Instead, continued access to Hoover's low-cost, renewable hydropower will keep rates low as California's utilities bring on new, more expensive renewable power to comply with the State's 33-percent renewable portfolio standard.

The legislation also sets up a process through which new power recipients in California will be determined by the Western Area Power Administration.

As explained in the House committee report accompanying this bill, Congress expects the agency to conduct an open hearing and review the process to determine power allocations fairly and equitably.

The process should provide the opportunity for irrigation districts, rural electric cooperatives, and other eligible entities to receive allocations.

Congress also expects that Western Area Power Administration will evaluate the relevant power requests of potential new Hoover power recipients in an open, thorough, and transparent process to assess both the applicants' power needs and the classes of customers they serve.

The agency should make allocation determinations in an impartial, unbiased, and objective manner, consistent with State and Federal preference standards, and in a way that provides the most benefit to the most Californians.

My colleagues and I also expect that the process and analytical results will be documented and made available for review.

Finally, no discussion of Hoover Dam would be complete without acknowledging efforts to protect endangered species.

Hoover contractors have committed to providing more than $150 million over 50 years to support the Lower Colorado River Multi-Species Conservation Program for the protection of 26 endangered, threatened and sensitive species.

The legislation authorizing the MSCP was enacted in the 111th Congress and signed into law on March 30, 2009.

I thank the parties for reaching this agreement.

The Hoover Dam is an American success story. And it is a renewable energy success story.

During the depths of the Great Depression, Americans stepped forward to help build one of the great engineering marvels of all time.

Between 1931 and 1936, our Nation made a massive effort involving thousands of workers more than 100 of whom lost their lives to build a powerplant unlike anything the world had ever seen.

Many in Congress at the time argued the cost of Hoover Dam was too high.

They argued that government should not be making such large investments in infrastructure.

They opposed efforts to invest in an unproven energy technology like hydropower.

The debate was strikingly similar to debates we are having in this body today.

Luckily for the people of California, believers in American infrastructure and technology won the Hoover Dam debate.

The U.S. Congress provided Federal funds, but only after the Department of the Interior arranged power contracts at prices sufficient to both, No. 1, cover the operating and maintenance charges and, No. 2 repay the capital appropriated by the U.S. Congress within 50 years.

When the communities and utilities of California, led by the City of Los Angeles, stepped forward to sign those contracts, construction began.

As the years have passed, the investment has been repaid and the wisdom of Congress's decision has become apparent.

And now we have enacted a law that continues the legacy of Hoover Dam.

I thank the generations before us for having the foresight to fund the Hoover

Dam, and I hope we can again rekindle the spirit and invest in America.

Madam President, I rise today to recognize and thank Ms. Lorelei Shepard, who will be retiring from the United States Senate at the end of the year. Lorelei began her career on the Hill in 1993, working for the Secretary of the Senate as an elevator operator in the Capitol. She eventually became a supervisor where she was responsible for managing the weekly schedule of 20 operators and supervising their day to day duties. Her pleasant demeanor and calm nature served her well as she guided and delivered confused visitors and harried staff and Senators to their destinations in the Capitol.

She joined the staff of the Senate Select Committee on Intelligence in 1995, as the Committee's receptionist, where once again her calm and friendly approach and knowledge of the Capitol served her well. In 2000, Lorelei decided to pursue one of her dreams and she moved to a beautiful home in a little town in Vermont. As a Californian, I think it is safe to say that although beautiful, the winters in Vermont leave something to be desired. Thanks to that New England winter, Lorelei decided she needed to thaw out and she soon returned to Washington. Through a combination of good luck and timing, the Committee was able to have Lorelei join the Committee staff again, at the end of 2001.

She has served for the last 10 years on the Committee's staff, including for the last 5 years as our security assistant, making sure that classified documents are logged and distributed appropriately, handling classified correspondence, and keeping track of the secrets entrusted to the Committee.

It is the Intelligence Committee's constitutional responsibility to oversee the intelligence activities of our nation. Through her many years of service on the Committee, Lorelei has made a quiet but critical contribution to this effort. For that, I thank her.

Though Lorelei will be leaving, the Shepard family still remains a part of the Senate community. Lorelei's daughter, Lori, and son, Peter, have followed in their mother's footsteps and both work in the Senate today. This is quite a testament to their family's commitment and dedication to our nation and one for which they should be proud.

I wish Lorelei all the best as she retires and eventually returns to Vermont. I know she will enjoy the new-found time she will have to pursue her love of quilting, writing and the myriad of other talents with which she has been blessed.

On behalf of the Intelligence Committee, many thanks Lorelei, best wishes, and stay warm.

Mr. President, I rise to speak on the nomination of Caitlin Halligan to be U.S. Circuit Judge for the D.C. Circuit Court of Appeals.

As the first woman to serve on the Senate Judiciary Committee--a committee on which I have served for 18 years--it is my great pleasure to speak in support of Ms. Halligan, who has excelled at every turn during her distinguished legal career.

She graduated cum laude from Princeton University in 1988. She received her law degree, magna cum laude, from Georgetown University Law Center, where she was managing editor of the Georgetown Law Journal and inducted into the Order of the Coif.

She began her legal career with a clerkship with Judge Patricia Wald on the U.S. Court of Appeals for the D.C. Circuit--the first woman to serve on that Court.

She then spent a year in private practice at the Washington, DC firm, Wiley, Rein, and Fielding, followed by a clerkship with Supreme Court Justice Stephen Breyer.

After another year in private practice, Ms. Halligan began work in the office of the Attorney General of the State of New York, first as Chief of the Internet Bureau.

She rose to become Solicitor General of the State of New York, the State's top appellate lawyer. She served in that role from 2001 through 2007.

During nearly all of Ms. Halligan's time as Solicitor General, George Pataki--a Republican--was Governor. Her job was to represent the State of New York zealously, and by all accounts she did so with skill and dignity.

Judith Kaye, the former Chief Judge of New York's highest court, writes on behalf of the Court's entire bench that ``it was invariably a treat'' to have Ms. Halligan argue before the Court.

In fact, the National Association of Attorneys General awarded Ms. Halligan the ``Best Brief Award'' for five consecutive years, 2001, 2002, 2003, 2004, and 2005.

Ms. Halligan left the Solicitor General post in 2007 to become the head of the appellate practice at the prestigious New York law firm, Weil, Gotshal, and Manges.

She has now returned to public service as the General Counsel of the New York County District Attorney's Office--one of the largest prosecutor's offices in the country.

Over the course of her distinguished career, Halligan has served as counsel for a party or amicus in the Supreme Court more than 45 times.

She has argued in the Supreme Court herself in five cases, most recently in March of this year. She also has argued or participated in numerous other cases before State and Federal appellate courts, including the New York Court of Appeals and the U.S. Court of Appeals for the Second Circuit.

In short, Ms. Halligan is an accomplished woman whose sterling qualifications for the bench are unassailable.

Ms. Halligan was first nominated more than 14 months ago. She was approved by the Senate Judiciary Committee nearly 9 months ago. She has been waiting for an up-or-down vote on the floor ever since.

It is an unfortunate sign of the times that my colleagues on the other side have held up her confirmation.

I understand that the National Rifle Association is opposed to Ms. Halligan's confirmation.

Behind the NRA's opposition is the fact that, while she was New York's Solicitor General, the State of New York pursued public nuisance litigation against gun manufacturers.

Think about that--any time a person represents a State or local government, or the Federal Government, and takes a controversial position, that may jeopardize a later confirmation vote.

That is not fair. A government lawyer's job is to pursue the government's interest vigorously and to do justice.

Ms. Halligan was appointed by the Attorney General to represent the State of New York, while the State had a Republican Governor, George Pataki. Her job was to advance New York's interest, and she did so with vigor. She should not be penalized for it.

Senator Sessions made this point when the Senate was considering Judge Kavanaugh's nomination. He said that ``[s]uggesting that service in an elective branch of Government somehow tarnishes a lawyer's reputation would be a terrible message for this body to send to the legal community and to all citizens.''

I couldn't agree more.

My Republican colleagues might also say that the D.C. Circuit's caseload does not support another judge, but they have short memories.

There are now three vacancies on the D.C. Circuit. That means that Ms. Halligan would only fill the ninth seat, out of 11 on the Court. Two seats would remain vacant.

However, my colleagues were not so concerned about this issue when President Bush's appointees were before the Senate. In fact, my Republican colleagues supported filling the 10th seat on the Court twice, and the 11th seat once.

I will conclude by simply saying that Ms. Halligan is a woman with sterling credentials, an exemplary record, and a wealth of experience.

She is President Obama's first and only nominee to the D.C. Circuit. She should be confirmed.

Nominations of Edgardo Ramos and Andrew Carter, SDNY

That is correct.

I do. I have a four corners meeting on the Energy and Water appropriations bill. That is my problem. So the later it is, the better it is for me.

Yes. My understanding is the House chairman only has until 3 o'clock, but I anticipate we will take all that time. So I can't change that.

Yes.

Madam President, I rise to ask my colleagues to support amendment No. 1125, which will limit mandatory military custody to terrorists captured outside the United States. This amendment is cosponsored by Senators Leahy, Durbin, Udall, Kirk, Lee, Harkin and Webb.

This is a very simple amendment. It adds only one word--the word ``abroad''--to section 1032 of the underlying bill. I strongly believe if it is not broke, do not fix it. The ability to have maximum flexibility in the United States is very important, and I totally support the Executive having that flexibility.

This bill creates a presumption that members or parts of al-Qaida or associated forces will be held in the military system. That is what concerns me because the military system has not produced very well over the last 10 years.

I want to take a moment to contrast some cases.

On this chart, we have sentences--five of them from military commissions and five or six from Federal courts. The Federal courts have actually convicted over the last 10, 11 years not 300 people but 400 people.

Military commissions are limited to some six convictions. Let's take a look at what they are.

A very famous one is Salim Hamdan because he brought a Supreme Court case. He was bin Laden's driver. He was acquitted of conspiracy and only convicted of material support for terrorism. He received a 5-month sentence by the military commission and was sent back to his home in Yemen to serve the time before being released in January of 2009.

No. 2: David Hicks entered into a plea on material support for terrorism and was given a 9-month sentence, mostly served back home in Australia.

Omar Khadr pled guilty in exchange of an 8-year sentence, but he will likely be transferred to a Canadian prison.

Ibrahim Ahmed Mahmoud al-Qosi pled guilty to conspiracy and material support to terrorism. His final sentence was 2 years pursuant to a plea deal.

Noor Uthman Muhammed pled guilty to conspiracy and material support to terrorism. His final sentence will be less than 3 years pursuant to his plea agreement.

Ali Hamza al-Bahlul received a life sentence after he boycotted the entire commission process.

On the other hand, you have sentences from the Federal courts.

You have Richard Reid, the Shoe Bomber--life in prison.

``Blind Sheik'' Omar Abdel Rahman--life in prison for the plot to bomb New York City.

Twentieth Hijacker Zacarias Moussaoui--life in prison.

Ramzi Yousef--life in prison for the 1993 World Trade Center bombing and the Manila Air plot.

Umar Farouk Abdulmutallab--probably life in prison; will be sentenced in January 2012.

Najibullah Zazi--potential life in prison. This is the man, with conspirators, who was going to bomb the New York subway.

There is definitive evidence that is irrefutable that the Federal courts have done a much better job than the military commissions.

Why this constant press, that if it is not broke we are going to fix it anyway, I do not understand. Why the constant push to put people in military custody rather than provide the flexibility so that evidence can be evaluated quickly? This person will get life in a Federal court versus an inability or a problem in a military commission or vice versa. I think the Executive should have that.

I think the last 10 years have clearly shown that this country is safer than it has ever been. Terrorists are behind bars where they belong and plots have been thwarted, so the system is working.

This amendment would make clear that under section 1032, U.S. Armed Forces are only required to hold a suspected terrorist in military custody when he is captured abroad. All the amendment does is add one word--that is the word ``abroad''--to make clear that the military will not be roaming our streets looking for suspected terrorists. The amendment does not remove the President's ability to use the option of military detention or prosecution inside the United States.

The administration has threatened to veto this bill, and has said:

[It] strongly objects to the military custody provision of

section 1032 [because it] would tie the hands of our

intelligence and law enforcement professionals.

Perhaps, most importantly, addressing the issue of this amendment specifically, on November 15, Defense Secretary Leon Panetta wrote this:

The failure of the revised text to clarify that section

1032 applies to individuals captured abroad . . . may

needlessly complicate efforts by frontline law enforcement

professionals to collect critical intelligence concerning

operations and activities within the United States.

The Director of National Intelligence, Jim Clapper, also wrote a letter on November 23, to say that he opposes the detainee provisions of this bill because they could--and I quote--``restrict the ability of our nation's intelligence professionals to acquire valuable intelligence and prevent future terrorist attacks.''

The administration suggested this change to the Armed Services Committee, but it was rejected. So the administration has had to threaten a veto on the bill. Who knows whether they will. I certainly do not know. This amendment limiting mandatory military custody to detainees outside the United States is a major improvement to the bill, and I ask my colleagues to support it.

I have a very hard time because I have watched detainees carefully as part of the Senate Intelligence Committee, and we are doing a study on the detention and treatment of high-value detainees. This has been going on for 2 years now. It is going to be a 4,000-page document, and it is going to be classified. But it will document what was actually done with each of the high-value detainees and what was learned from them. It shows some very interesting things. But the upshot of all of this is that we should keep military custody to people arrested abroad and have the wide option in this country, which is the case now, and not mandate--mandate--that military custody and military commission trial must be for everyone arrested in the United States.

You will hear that anyone who comes to the United States who carries out a criminal act, a terrorist act under the laws of war, should be subject to military custody. The problem is, 10 years of experience has not worked. How many years' experience do we need? How many sentences-- six cases--and this is all there is in 10 years.

I know the other side got very upset when Abdulmutallab was Mirandized. The fact of the matter is, every belief is Abdulmutallab is going to do a life sentence in a Federal prison, put away somewhere in a place where he cannot escape and where the treatment is very serious.

I have, again, a hard time knowing why if it is not broke we need to fix it, and why we need to subject everybody who might be arrested in this country to a record that is like this: 5-month sentence, 9-month sentence, 8-year sentence, 2-year sentence, 3 years pursuant to a plea agreement, and one life sentence, when you have 400 cases that have been disposed of in a prompt way in a Federal court, who are serving long sentences in Federal prison.

I wish to hold the remainder of my time and have an opportunity to respond to the distinguished chairman and ranking member.

If that is possible, that would be helpful. But it is whatever Senators want.

OK. All right.

Madam President, how much time do I have remaining?

Thank you very much.

Not on my time. On the Senator's time.

I appreciate it. I may well use it.

Madam President, I object to the statement just made that this will make the United States of American less safe. Ten years of experience has shown it has not. Plot after plot after plot has been interrupted. I have served on the Intelligence Committee for 11 years now. We follow this closely. This country is much more safe because things have finally come together with the process that is working.

The FBI has a national security division with 10,000 people. There are 56 FBI offices. The military does not have offices to make arrests around this country. This constant push that everything has to be militarized--they were wrong on Hamdi, they were wrong on Hamdan. And it keeps going. And that it is terrible to protect people's rights. I do not think that creates a safe country. This country is special because we have certain values, and due process of law is one of those values. So I object. I object to holding American citizens without trial. I do not believe that makes us more safe. I object to saying that everything is mandatory military commission and military custody if anyone from abroad commits a crime in this country. The administration has used the flexibility in a way that they have won every single time. There have been no failures.

The Bush administration as well used the Federal courts without failure. They have gotten convictions. The military commissions have failed, essentially; 6 cases over 10, 11 years. I pointed out the sentences. So to say that what we are doing is to make this country less safe may be good for a 30-second sound bite, but it is not the truth.

I yield the floor.

Would the Senator yield for a question?

Madam President, I wonder if I might take a few minutes to make a couple statements.

Madam President, I wished to say with respect to Abdulmutallab, what was very new there was that an explosive had been invented that could go through a magnetometer without detection. It is, to my knowledge, the first time anyone came into the United States-- this young Nigerian from a very prominent Nigerian family--wearing a diaper that had enough of this PETN, this new explosive, to blow up the plane. He missed in detonation and it caught on fire and the fire was put out.

There have been other incidents of trying to smuggle this PETN in cartridges of computers and they even had dogs going to the airport and they could not smell the explosive inside the computer cartridge. That was in Dubai. It is a very dangerous explosive. It is new, and it has been improved. It is something we need to be very wary of.

I also wish to point out that there is a public safety exception to Miranda. We do not have to Mirandize someone or we could continue to question them, if there is a public safety risk. So Mirandizing an individual is not a point in this argument, in my view, because we can continue the interrogation.

What is a point, in my argument, is that the FBI now has competence; that there is a group of special experts who can be flown to a place where someone is arrested and do initial interrogation. They are specifically trained and, to the best of my knowledge, they are effective at interrogating. My point is, the system is working, and we should keep it as it is.

I yield the floor.

Shall I go first?

Mr. President, I wish to explain what has happened this long afternoon. Originally some of us, namely Senators Leahy, Durbin, Udall of Colorado, Kirk, Lee, Harkin, Webb, Wyden, Merkley, and myself, realized that there was a fundamental flaw in section 1031 of the bill. There is a difference of opinion as to whether there is this a fundamental flaw. We believe the current bill essentially updates and restates the authorization for use of military force that was passed on September 18, 2001. Despite my support for a general detention authority, the provision in the original bill, in our view, went too far. The bill before us would allow the government to detain U.S. citizens without charge until the end of hostilities. We have had long discussions on this.

The disagreement arises from different interpretations of what the current law is. The sponsors of the bill believe that current law authorizes the detention of U.S. citizens arrested within the United States, without trial, until ``the end of the hostilities'' which, in my view, is indefinitely.

Others of us believe that current law, including the Non-Detention Act that was enacted in 1971, does not authorize such indefinite detention of U.S. citizens arrested domestically. The sponsors believe that the Supreme Court's Hamdi case supports their position, while others of us believe that Hamdi, by the plurality opinion's express terms, was limited to the circumstance of U.S. citizens arrested on the battlefield in Afghanistan, and does not extend to U.S. citizens arrested domestically. And our concern was that section 1031 of the bill as originally drafted could be interpreted as endorsing the broader interpretation of Hamdi and other authorities.

So our purpose in the second amendment, number 1456, is essentially to declare a truce, to provide that section 1031 of this bill does not change existing law, whichever side's view is the correct one. So the sponsors can read Hamdi and other authorities broadly, and opponents can read it more narrowly, and this bill does not endorse either side's interpretation, but leaves it to the courts to decide.

Because the distinguished chairman, the distinguished ranking member, and the Senator from South Carolina assert that it is not their intent in section 1031 to change current law, these discussions went on and on and they resulted in two amendments: our original amendment, which covers only U.S. citizens, which says they cannot be held without charge or trial, and a compromise amendment to preserve current law, which I shall read:

On page 360, between lines 21 and 22, insert the following:

Nothing in this section shall be construed to affect

existing law or authorities relating to the detention of

United States citizens or lawful resident aliens of the

United States or any other persons who are captured or

arrested in the United States.

I believe this meets the concerns of the leadership of the committee and this is presented as an alternative. There are those of us who would like to vote for the original amendment, which I intend to do, as well as for this modifying amendment. They will appear before you as a side-by-side, so everyone will have the chance to vote yea or nay on the original or yea or nay on the compromise. As I said, I would urge that we vote yes on both.

This is not going to be the world as we see it postvote, but I will tell you this, the chairman and the ranking member have agreed that the modified language presented in the second vote will be contained in the conference; that they will do everything they can to contain this language in the conference.

In the original amendment--my original amendment--which affects only U.S. citizens, that is not the case. They are likely to drop that amendment. So I wish to make the point by voting for both, and I would hope others would do the same. I think a lot has been gained. I think a clear understanding has been gained of the problems inherent in the original bill. I think Members came to the conclusion that they did not want to change present law and they wanted to extend this preservation of current law not only to citizens but to legal resident aliens as well as any other persons arrested in the United States. That would mean they could not be held without charge and without trial. So the law would remain the same as it is today and has been practiced for the last 10 years.

I actually believe it is easy to say either my way or the highway. I want to get something done. I want to be able to assure people in the United States that their rights under American law are protected. The compromise amendment, which is the second amendment we will be voting on, does that. It provides the assurance that the law will remain the same and will not affect the right of charge and the right of trial of any U.S. citizen, any lawful legal alien or any other person in the United States. We have the commitment by both the chairman and the ranking member that they will defend that in conference.

There are those who say I wish to just vote for the original amendment. That is fine. I am not sure it will pass. I don't know whether it will pass, but in my judgment, the modification is eminently suitable to accomplish the task at hand and has the added guarantee of the support of the chairman, the ranking member in a conference committee with the House, which I think is worth a great deal. They have given their word, and I believe they will keep it. This Record will reflect that word.

Amendment No. 1456

I call up my amendment No. 1456, which is the modification.

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

There are others who wish to speak.

Mr. President, I wonder if I might be able to make a few comments.

This amendment is a compromise amendment. I think it is actually a very good amendment. I want to thank the chairman of the committee, the ranking member, and Senator Graham, who participated in a rather lengthy discussion, and this is the result.

The amendment--I will read it. It says:

Nothing in this section shall be construed to affect

existing law or authority relating to the detention of United

States citizens or lawful resident aliens of the United

States or any other persons who are captured or arrested in

the United States.

There is a commitment from both the chairman and the ranking member and Senator Graham that they will defend this amendment in conference. So I hope everyone will vote for it because essentially it just supports present law, whether one supports the broad interpretation of present law, or one supports a more narrow interpretation of present law. There is no change in law.

I ask for the yeas and nays.

Mr. President, I rise to respond to a colloquy yesterday that occurred between Senators Ayotte, Lieberman, and Graham regarding amendment No. 1068 offered by Senator Ayotte to the Defense authorization bill.

Senator Ayotte's amendment would eliminate measures that provide our interrogators with the guidance and clarity they need to effectively solicit actionable intelligence while upholding American values. In doing so, the amendment would override the better judgment of our military and intelligence professionals in a manner that will harm, not improve, our short- and long-term security.

Yesterday, Senator Lieberman said on the Senate floor that he wants prisoners taken captive by the United States to be ``terrified about what is going to happen to them while in American custody.'' He also said he wants ``the terror they inflict on others to be felt by them.'' I believe that such statements are antithetical to fundamental American values. I firmly believe that America will not and cannot lower itself to the level of terrorists. To do so would be to abandon our most cherished principles and what our country stands for.

There was also discussion of abuses at Abu Ghraib, which diminished America's standing and outraged the American public.

As chairman of the Select Committee on Intelligence, I can say that we are nearing the completion a comprehensive review of the CIA's former interrogation and detention program, and I can assure the Senate and the Nation that coercive and abusive treatment of detainees in U.S. custody went beyond a few isolated incidents at Abu Ghraib.

Moreover, the abuse stemmed not from the isolated acts of a few bad apples but from fact that the line was blurred between what is permissible and impermissible conduct, putting U.S. personnel in an untenable position with their superiors and the law.

That is why Congress and the executive branch subsequently acted to provide our intelligence and military professionals with the clarity and guidance they need to effectively carry out their missions. And that is where the September, 2006 Army Field Manual comes in.

However, Senator Ayotte's amendment would require the executive branch to adopt a classified interrogation annex to the Army Field Manual, a concept that even the Bush administration rejected outright in 2006.

Senator Ayotte argued that the United States needs secret and undisclosed interrogation measures to successfully interrogate terrorists and gain actionable intelligence. However, our intelligence, military, and law enforcement professionals, who actually interrogate terrorists as part of their jobs, universally disagree. They believe that with the Army Field Manual as it currently is written, they have the tools needed to obtain actionable intelligence from U.S. detainees.

Further, in 2009, after an extensive review, the intelligence community unanimously asserted that it had all the guidance and tools it needed to conduct effective interrogations. The Special Task Force on Interrogations--which included representatives from the CIA, Defense Department, the Office of the Director of Intelligence, and others-- concluded that ``no additional or different guidance was necessary.''

Since 2009, the interagency High Value Detainee Interrogation Group Interrogation Group has assured the Senate Intelligence Committee that it has all the authority it needs to effectively gain actionable intelligence.

I thank the distinguished manager of the bill, and I say to the distinguished senior Senator from Illinois, who is here, I will try to be relatively brief. But I would also say that seldom do we get an opportunity on the floor of the Senate to debate what is fundamental to this American democracy. In a sense, I am pleased this issue has now been aired publicly because I think we can address it directly.

Senator Durbin, I also want to thank your colleague, the junior Senator from Illinois, Senator Kirk, for his cosponsorship of this amendment.

The fact of the matter is, the original draft of this defense bill had this language in it:

The authority to detain a person under this section does

not extend to the detention of citizens or lawful resident

aliens of the United States on the basis of conduct taking

place in the United States except to the extent permitted by

the Constitution of the United States.

That was removed from the bill. Essentially, what we are trying to do is put back in that you cannot indefinitely detain a citizen--just a citizen--of the United States without trial. Due process is a basic right of this democracy. It is given to us because we are citizens of the United States. And due process requires that we not authorize indefinite detention of our citizens.

Where I profoundly disagree with the very distinguished chairman and ranking member of the Armed Services Committee is by saying that Ex parte Quirin established the law for U.S. citizens in this area that still holds. It does not. I went to the Hamdi opinion, and I wish to read some of the plurality opinion as written by Justice O'Connor. This first quote is from page 23 of her opinion.

As critical as the government's interest may be in

detaining those who actually pose an immediate threat to the

national security of the United States during ongoing

international conflict, history and common sense teach us

that an unchecked system of detention carries the potential

to become a means for oppression and abuse of others who do

not present that sort of threat.

Continuing on page 24:

We reaffirm today the fundamental nature of a citizen's

right to be free from involuntary confinement by his own

government without due process of law, and we weigh the

opposing governmental interests against the curtailment of

liberty that such confinement entails.

It then goes on, referring to the Hamdi case, on page 26:

We therefore hold that a citizen-detainee seeking to

challenge his classification as an enemy combatant must

receive notice of the factual basis for his classification,

and a fair opportunity to rebut the government's factual

assertions before a neutral decisionmaker.

Then to quote from Justice Scalia's opinion, which is important commentary on the 1942 case Ex parte Quirin, he says:

The government argues that our more recent jurisprudence

ratifies its indefinite imprisonment of a citizen within the

territorial jurisdiction of Federal courts. It places primary

reliance on Ex parte Quirin, a World War II case upholding

the trial by military commission of eight German saboteurs,

one of whom, Hans Haupt, was a U.S. citizen.

Justice Scalia concludes:

This case was not this Court's finest hour.

Mr. President, the difference today is that we as a Congress are being asked, for the first time certainly since I have been in this body--and I believe since the senior Senator from Illinois has been in this body--to affirmatively authorize that an American citizen can be picked up and held indefinitely without being charged or tried. That is a very big deal, because in 1971 we passed a law that said you cannot do this. This was after the internment of Japanese-American citizens in World War II. It took that long, until 1971, when Richard Nixon signed the Non-Detention Act, and that law has never been violated.

The Quirin case was not about whether a U.S. citizen captured during wartime could be held indefinitely, but rather whether such an individual could be held in detention pending trial by military commission. The recent case of an American put into military custody, of course, was Jose Padilla, and there was a good deal of controversy over the years about his case. He was ultimately transferred out of military custody, tried and convicted in a civilian court.

What we are talking about here--and I am very pleased Senator Kirk and Senator Lee have joined us as cosponsors in this--is the right of our government, as specifically authorized in a law by Congress, to say that a citizen of the United States can be arrested and essentially held without trial forever.

The hypothetical example that has been offered by the Senator from Arizona, the ranking member of the committee, is: Would we want someone who is an American--who is planning to kill our people, bomb our buildings--not to be held indefinitely under the laws of war? I believe it is a different situation when it comes to American citizens. What if it is an innocent

American we are talking about? What if it is someone who was in the wrong place at the wrong time? The beauty of our Constitution and our law is it gives every citizen the right of review--review by a court, and this is what the Hamdi decision is all about. The defense bill on the floor, as written, would take us a step backward. The bill, as written, would say an American citizen can be picked up, can be held for the length of hostilities--is that 5 years, 10 years, 15 years, 20 years, 25 years, 30 years--without a trial. I say that is wrong. I say that is not the way this democracy was set up. And I also say that is totally unnecessary because our federal courts work well to prosecute terrorists. We can go back to the Shoe Bomber, as a case in point. We can go back to Abdulmutallab as a case in point. We can go back to the record of the Federal courts prosecuting over 400 terrorists since 9/ 11.

I want to thank Senator Durbin for his interest in this issue and his cosponsorship of this amendment. It is very much appreciated. I don't know whether we can win this, but I think it is very important that we try and I know we are getting more and more support as people learn more about what this bill does. I think it is very important that we build a record in this body, because I have no doubt this is going to be litigated. I hope we are successful with this amendment. I hope we can protect the rights of Americans.

Mr. President, as we have occasion to look at people in Guantanamo, we know there are people there who were in the wrong place at the wrong time. If they are going to be held forever, that is a mistake, and we don't want the same thing to happen to American citizens in this country.

This is another example of how we are over-militarizing things that aren't broken. As I have said previously here on the floor, I don't see a need for the military to go around arresting Americans. The national security division of the FBI now has some 10,000 people. They have 56 field local offices with special agents who are well equipped to arrest terrorists and also interrogate them. Certainly the Justice Department is equipped to prosecute terrorists in Federal criminal court. The conviction rate and the long sentences achieved shows their success.

I am hopeful we will be able to pass this amendment and change the bill to reflect that Americans are protected from permanent detention without trial. That is all we are trying to do.

I thank the Senator from Illinois, I thank the Chair, and I yield the floor.

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

Mr. President, if I understand the procedure, it is now appropriate for me to speak on my pending amendments. I will not offer my two amendments for a vote now, but I would like to take the opportunity to speak about them at this time. I trust that is in order.

Mr. President, I rise to express my continued opposition to the detention provisions in the Defense authorization bill.

I was on the Intelligence Committee prior to 9/11, and I have watched the transition since that time. I have watched America--to use a phrase--get its act together, and I am proud of where this country stands at this time with the procedures, the interrogation techniques, the custody issues, and the prosecutions that have been successful in the last 10 years. In my judgment, this country is safer now than we were before 9/11.

Before the recess, I laid out my views on why the detainee provisions in the Armed Services bill were detrimental to national security because they reduce the President's flexibility to make decisions on how best to detain and potentially interrogate and prosecute suspected terrorists. Today, I would like to speak to the two amendments I have filed, and I will describe them in a moment.

Let me also reference two letters in opposition to the detention provisions in the underlying bill: one written to me from the Director of National Intelligence, James Clapper, and the second written yesterday to Chairman Levin from Bob Mueller, the Director of the FBI.

These letters are in addition to the Statement of Administrative Policy, which includes a veto threat to the detention provisions and the letter from the Secretary of Defense, Leon Panetta, both of which were inserted into the Record before the recess.

So I note that the provisions in the bill we are considering are opposed by the White House, by the Secretary of Defense, the Director of National Intelligence, and the Director of the FBI. These top national security officials are all concerned that the bill reduces the administration's flexibility to combat terrorism, both at home and abroad, and I would agree with that.

I will ask at the appropriate time for a vote on amendment No. 1125, which will limit mandatory military custody to terrorists captured outside the United States. This is a very simple amendment that only adds one word, ``abroad,'' to section 1032 of the underlying bill.

Currently, this bill creates a presumption that members or parts of al-Qaida or ``associated forces'' will be held in the military detention system, and I disagree with that approach. I believe the President should have the flexibility to hold captured terrorists in the military or the criminal justice systems, and the decision of which system to use should be made based on the individual facts and evidence of each case.

Putting aside that general view, I am very concerned that creating a presumption for military custody--which this bill does--and requiring a cumbersome waiver process will jeopardize counterterrorism cases and intelligence gathering. This concern is not

only mine, it has been raised by the White House, by Secretary Panetta, and very directly by Director Mueller in his letter.

So my amendment would clarify the situation and remove the confusion and delay that I believe this bill will cause. My amendment will make clear that under section 1032 of this bill the U.S. Armed Forces are only required to hold a suspected terrorist in military custody when that individual is captured abroad. All that amendment does is add that one word, ``abroad,'' to make clear that the military will not be roaming our streets looking for suspected terrorists. My amendment does not remove the President's ability to use the option of military detention or prosecution inside the United States.

My amendment makes clear that inside the United States there is no presumption for military custody. Inside the United States, a Customs agent or local law enforcement officer could follow his or her standard process and turn a suspected terrorist over to the FBI for handling without having to worry about whether a waiver may apply or whether it is required.

The FBI has changed. There are 56 field offices, there is a national security branch, and it is staffed with thousands of agents inside the United States. The FBI is well equipped to handle a terrorist inside the United States, but the Department of Defense is not. Listen to what Director Mueller wrote. He notes, and I quote:

The legislation introduces a substantial element of

uncertainty as to what procedures are to be followed at

perhaps the most critical time in the development of an

investigation. . . .

Now, I understand that the chairman and ranking member of the Armed Services Committee have included a waiver and have required that the administration issue procedures to lay out how the mandatory military custody provision will be carried out. But the administration is telling us, with a unanimous voice from all its senior counterterrorism officials, that this provision is harmful and unnecessary. But we say Congress knows better. I don't believe we do know better, and I think not to listen to those who are really responsible to carry out these missions in what is a very difficult field today, based on a careful assessment of national security, is a mistake.

The administration has threatened to veto this bill and said it ``strongly objects to the military custody provision of section 1032'' in its official Statement of Administration Policy because it would, and I quote, ``tie the hands of our intelligence and law enforcement professionals.'' So here are the experts saying: Don't do this, it will tie our hands; and here is the political branch saying: We know better.

If something had gone wrong, if there had been mistakes, if there hadn't been over 400 cases tried successfully in civilian Federal criminal courts in the last 10 years and 6 cases and a muffed history of military prosecution in these cases, I might agree. But the march is on here in Congress: militarize this thing from stem to stern. And I disagree with that. When something isn't broke, don't fix it.

Mr. President, there are rapid reaction teams part of the HIG--or High-Value Interrogation Group--who can deploy on a moment's notice, who can rapidly assess a suspect, who can carry out a proper and effective interrogation, and the executive branch then has an opportunity to decide whether the facts and the evidence really are best suited for a Federal criminal prosecution in Article III courts, or the facts and the evidence are really best suited for a military commission prosecution.

This flexibility is what we are taking away from the executive branch under the provisions in this bill. It was well practiced during the Bush Presidency, and it has been well practiced by the Obama Presidency. Virtually every national security professional connected to the handling of terrorists and the intelligence obtained from them says to change it would be a mistake. So I believe the amendment I am offering--limiting mandatory military custody to detainees outside the United States--is a major improvement to the underlying bill. It removes the uncertainty that will occur if military custody is required for detainees captured inside the United States.

Frankly, I would prefer that the provision--section 1032--be struck in its entirety, as I don't believe we should be creating a presumption of military custody over the law enforcement route. That is not what this country is about. There is the posse comitatus law on the books. The military isn't supposed be roaming the streets of the United States. But if there is going to be this type of provision, it should at least do no harm to our ability to detain, interrogate, and prosecute terrorists. So I ask for my colleagues' support on this amendment.

While I am on the Senate floor, I would like to speak briefly to the second amendment I have filed and on which I also seek a vote, since the Udall amendment has failed; that is, amendment No. 1126, which would prohibit U.S. citizens from being held in indefinite detention without trial or charge.

As Members know, section 1031 of the underlying bill updates and restates the authorization for the use of military force that was passed on September 18, 2001, 10 years ago, 1 week after the attacks of 9/11. The provision updates the authority to detain terrorists who seek to harm the United States, an authority that I believe is consistent with the laws of armed conflict. However, I strongly believe that the U.S. Government should not have the ability to lock away its citizens for years, and perhaps decades, without charging them and providing a heightened level of due process. We shouldn't pick up citizens and incarcerate them for 10 or 15 or 20 years or until hostilities end--and no one knows when they will end--without giving them due process of law.

So my amendment simply adds the following language to section 1031 of the underlying bill:

The authority described in this section for the Armed

Forces of the United States to detain a person does not

include the authority to detain a citizen of the United

States without trial until the end of hostilities.

It is hard for me to understand how any Member of this body wouldn't vote for this amendment because, without it, Congress is essentially authorizing the indefinite imprisonment of American citizens without charge or trial.

As I said on the Senate floor previously, 40 years ago Congress passed the Non-Detention Act of 1971 that expressed the will of Congress and the President that America would never repeat the Japanese-American internment experience--something that I witnessed as a child up close and personal--and would never subject any other American to indefinite detention without charge or trial. In the 40 years since President Richard Nixon signed the Non-Detention Act into law, Congress has never made an exception to it.

A key issue in this bill is that this is the Congress making an explicit exception that has never been made before by the Congress, and what we are saying is, it is OK to detain an American citizen without trial, ad infinitum. I don't think it is. I don't think that is what our Constitution is all about. Yet the provision in this bill would do just that.

I ask unanimous consent to have printed in the Record a column published yesterday in the San Jose Mercury News of California from Floyd Mori.

I know Mr. Mori well. He is the national executive director of the Japanese American Citizens League, which is the oldest and largest Asian-American civil rights organization in the United States. The Japanese American Citizens League--or JACL as we would say--has been an active voice on the wrongful internment of Japanese Americans during World War II, and I believe it is worth listening to what they have observed from that painful history.

The administration has threatened to veto this bill and said the following in its official Statement of Administration Policy:

After a decade of settled jurisprudence on detention

authority, Congress must be careful not to open a whole

series of legal questions that will distract from our efforts

to protect the country.

Yet by allowing the military to detain U.S. citizens indefinitely, Congress would be opening a great number of serious legal questions, in my judgment.

This amendment would restore the language that was in an earlier version of this bill that would have established a similar ban on the indefinite detention of U.S. citizens. It is also consistent with the way we have conducted the war on terror over the past 10 years. In cases where the United States has detained American citizens, including John Walker Lindh and Jose Padilla, they have eventually been transitioned from indefinite detention to the criminal justice system, and both have been convicted and are serving long prison sentences. John Walker Lindh pleaded guilty to terrorism charges and was given a 20-year sentence, and Jose Padilla was convicted of terrorism conspiracy and sentenced to a 17-year prison sentence.

So I believe this amendment is consistent with past practice and with traditional U.S. values of due process. We are not a nation that locks up its citizens without charge, prosecution, and conviction. My amendment reflects that view, I believe in that view, and I hope this body does as well. So I urge its adoption.

Mr. President, in conclusion, I ask my colleagues' support on these two amendments because I believe they will improve the legislation.

I yield the floor, and I suggest the absence of a quorum.

Mr. President, I rise to speak in support of the Cut Energy Bills at Home Act, which Senator Snowe, Senator Bingaman and I have introduced. It has been a pleasure to work again with Senators Snowe and Bingaman on an important piece of energy legislation. We have written this bill in a fully cooperative process, and my colleagues have been especially accommodating of changes requested by California's experts; I thank my colleagues for their efforts.

This legislation would put the construction industry back to work by creating a homeowner tax credit for home renovations that increase the energy efficiency of the home by at least 20 percent. The tax credit would increase in size with every 5 percent in additional energy efficiency improvement achieved. Homeowners who improved the efficiency of their home by more than 50 percent will qualify for a maximum credit of $5,000.

This legislation helps address the continued high unemployment in the construction sector while making a long-term investment in America's building infrastructure. The construction industry has the highest unemployment rate of any sector nationally, according to the Bureau of Labor Statistics.

The current residential building stock exceeds demand, making a rapid recovery in new housing starts unlikely. According to the Census Bureau, 14.3 percent of the housing units in the United States in the second quarter of 2011 were vacant, even as prices continue to drop.

Thus the construction industry needs jobs, but artificially stimulating construction of new homes would exacerbate a situation of oversupply and depress home prices further.

Our Nation's buildings also need the upgrade. Buildings account for about 40 percent of the U.S. energy appetite, as well as 40 percent of its carbon dioxide

emissions, according to the Department of Energy. However, the consulting firm McKinsey and Company has found that improving building energy efficiency is one of the most cost effective ways to reduce greenhouse gas emissions.

Since 1974, California has used mandates, regulations and incentives to hold its per capita energy consumption essentially constant, while energy use per-person for the United States overall has jumped 50 percent.

This legislation provides a solution by stimulating the renovation of existing homes.

This is a jobs bill that provides incentives to reward energy efficient renovations that will create jobs in the construction sector, avoid increasing the supply of housing beyond demand, decrease energy use and reduce pollution, and expand the market for efficient technology and products.

This bill would create the first tax incentive for energy efficiency home renovation based on the energy performance of the home rather than the cost of the equipment.

This concept, which Senator Snowe and I first proposed in 2007 as part of the Extend Act, is recommended by most energy efficiency experts.

Current policy allow homeowners to claim credits for the purchase of energy efficient insulation, windows, doors, heaters, air conditioners and water heaters. This approach is very expensive, largely due to claims filed for windows.

By restructuring the credit to apply to whole-home energy renovations that reward energy efficiency performance instead of the cost of equipment, this proposal has the potential to increase effectiveness while substantially lowering costs.

The legislation also includes provisions to ensure effectiveness and prevent abuse. The work must be done by a contractor who must sign an affidavit certifying the work was done and submit photographs of the work. The contractor must use certified, computer-based energy efficiency measurement tools. The credit would be limited to renovations of primary residences that do not increase the size of the home, and the credit would be capped at no more than 30 percent of the cost of renovation, to prevent homeowners from making large claims for relatively inexpensive renovations. As a tax credit, all claims would also be subject to IRS audits.

The bill is supported by the California Energy Commission, the Alliance to Save Energy, Efficiency First, the American Council for an Energy Efficient Economy and the Natural Resource Defense Council.

By offering incentives for energy efficient renovations, this bill helps create jobs in California's ailing construction sector while at the same time decreasing energy use and pollution.

This sort of investment, putting Americans back to work while leaving behind lasting improvements, is the type of legislation on which Congress should be spending time.

Madam President, I view the detention provisions of this bill as real pernicious, as an attack on the Executive power of the President, and contrary to the best interests of this Nation. So I rise to express my strong opposition to three specific detention provisions in the Defense authorization bill.

There was some discussion on the Senate floor that the Intelligence Committee had reviewed these. This is not true. I would like to read a letter that I sent to the majority leader that was signed by every Democratic member of the Intelligence Committee on October 21.

We write as members of the Senate Judiciary Committee--

Because there were some Judiciary Committee members on this.

and the Senate Select Committee on Intelligence, to express

our grave concern with subtitle D, titled Defense Matters of

title 10 of S. 1253, the National Defense Authorization Act

for Fiscal Year 2012. We support the majority of provisions

in the bill which further national security and are of great

importance. But we cannot support these controversial

detention positions.

Then we go on to say--and I will not read the whole letter. I will put the whole letter in the Record.

The executive branch must have the flexibility to consider

various options for handling terrorism cases, including the

ability to prosecute terrorists for violations of U.S. law in

Federal criminal court.

Yet, taken together, sections 1031 and 1032 of subtitle (d)

are unprecedented and require more rigorous scrutiny by

Congress. Section 1031 needs to be reviewed to consider

whether it is consistent with the September 18, 2001,

authorization for use of military force, especially because

it would authorize the indefinite detention of American

citizens without charge or trial . . .

I will stop reading here, but again, I want to emphasize this point. We are talking about the indefinite detention of American citizens without charge or trial. We have not done this at least since World War II when we incarcerated Japanese Americans. This is a very serious thing we are doing. People should understand its impact.

I want to outline the provisions in the Armed Services bill that would further militarize our counterterrorism efforts and ignore the testimony and recommendations of virtually all national security and counterterrorism officials and experts. We have heard from the Secretary of Defense, the Attorney General, the general counsel of the Defense Department, and John Brennan, the Assistant to the President for Homeland Security and Counterterrorism. Every one of them opposes these provisions. They have to carry them out. They are the professionals responsible for so doing. Yet, we are going to countermand them?

The first problematic provision, section 1032, requires mandatory military custody with no consideration of the details of individual cases. The bill mandates military detention of any non-U.S. citizen who is a member of al-Qaida, or an associated force, whatever that may be, and who planned or carried out an attack, or attempted attack, on this country or abroad. Here is the problem: The Armed Services Committee ignores the administration's request to have this provision apply only to detainees captured overseas. Therefore, any noncitizen al-Qaida operative captured in the United States would be automatically turned over to military custody.

Military custody for captured terrorists may make sense in some cases, but certainly not all. Requiring it in every case could harm our Nation's ability to investigate and respond to terrorist threats and create major operational hurdles. For example, the FBI has 56 local field offices around the country. It is staffed with agents who can arrest, interrogate, and detain. The military does not. As has been the policy of Republican and Democratic Presidents before and after 9/11, the decision about where to hold a prospective terrorist should be based on the facts of each case, and should be made by national security professionals in the executive branch.

In a letter, Secretary Panetta said this week that this provision ``restrains the executive branch's options to utilize, in a swift and flexible fashion, all the counterterrorism tools that are now legally available.''

He added that the bill as written ``. . . may needlessly complicate efforts by frontline law enforcement professionals to collect critical intelligence concerning operations and activities within the United States.''

This is the man who ran the CIA and is now running the Department of Defense, and we are going to ignore him? Are we saying it doesn't make any difference what he says? I am not part of that school of thought. I think what he says does make a difference.

I ask unanimous consent to have Secretary Panetta's November 15 letter printed in the Record.

Let me explain why this proposal is bad policy.

Consider the case of Najibullah Zazi. He was arrested in September of 2009 as part of an al-Qaida conspiracy to carry out suicide bombings of the New York City subway system. The FBI arrested Zazi after they had followed him on a 24/7 basis. He began providing useful intelligence to the FBI once captured.

If the mandatory military custody in the Armed Services bill were law, all of the surveillance activities, all of what the FBI did would be in jeopardy. Instead of interrogating him about his coconspirators, or where he had hidden other bombs, the FBI would have squandered valuable time determining whether Zazi was a member or part of al-Qaida or an ``associated force.'' Requiring law enforcement and national security professionals to determine whether an individual meets a specific legal definition adds a delay--most people would have to admit this. Also a waiver process takes time as it proceeds through the President and Secretary of Defense, both of whom believe it unduly complicates the ability to immediately interrogate an individual or prevent another attack.

Suppose a terrorist such as Zazi were forced into mandatory military custody. Then the government could also have been forced to split up codefendants, even in cases where they otherwise could be prosecuted as part of the same conspiracy in the same legal system.

Zazi was a permanent legal resident. His coconspirators were both U.S. citizens. They would be prosecuted on terrorist charges in Federal criminal court, but Zazi himself would be transferred to military custody. Two different detention and prosecution systems would play out and could well complicate a unified prosecution.

Incidentally, in the Zazi case, prosecutors have obtained convictions against six individuals, including guilty pleas from Zazi, who faces life in Federal prison without parole.

What could be better than that? If it is not broke, don't fix it. What is happening now isn't broke. That is the point.

Guess what. I try to do my homework, I read the intelligence, and I try to know what is happening. It is working. The government has its act together. Now arbitrarily this is going to change because there is a predilection of some people in this body that the military must do it all--if they cannot do it all, a part of it. But what this does is essentially militarize certain criminal terrorist acts in the United States. I have a real problem with that. I don't understand why Congress would want to jeopardize successful terrorism prosecutions.

The former speaker was talking about Farouq Abdulmutallab, better known as the Underwear Bomber, from Christmas Day in 2009. Abdulmutallab was brought into custody in Detroit after failing to detonate a bomb on Northwest Flight 253. He was interrogated almost immediately by FBI special agents. And he talked.

Some critics contend that Abdulmutallab stopped talking later that day because he was Mirandized. That happens to be correct, at least temporarily. But what these critics don't mention is that he likely would have been even less forthcoming to military interrogators.

It was FBI agents who traveled to Abdulmutallab's home in Nigeria and persuaded family members to come to Detroit to assist them in getting him to talk. The situation would have been very different under Section 1032. Under the pending legislation, it would have been military personnel who were attempting to enlist prominent Nigerians to assist in their interrogation, and Abdulmutallab would have been classified as an enemy combatant and held in a military facility and, therefore, his family would not be inclined to cooperate. This is we have been told on the Intelligence Committee.

For the record, Umar Farouq Abdulmutallab pleaded guilty to all charges last month in a Federal criminal court in Michigan and will likely spend his life behind bars. What can be better than that? Where can the military commission come close to that effort? In fact, they can't. They had 6 cases, minor sentences, or released, plus 300 to 400 convictions in Federal Court.

To conclude on this mandatory military custody provision, the Defense Department has made clear it does not want the responsibility to take these terrorists into mandatory military custody. But do we know better? I don't think so.

The Department of Justice has said that approximately one-third of terrorists charged in Federal Court in 2010 would be subject to mandatory military detention, absent a waiver from the Secretary of Defense.

The administration contends that the mandatory military custody is unwise because our allies will not extradite terrorist suspects to the United States for interrogation and prosecution--or even provide evidence about suspected terrorists--if they will be sent to a military brig or Guantanamo.

Finally, the military isn't trained or equipped for this mission-- they have plenty to do as it is--but the Department of Justice is.

As John Brennan, the Assistant to the President for Homeland Security and Counterterrorism, said in March:

Terrorists arrested inside the United States will, as

always, be processed exclusively through our criminal justice

system. As they should be.

I agree.

The alternative would be inconsistent with our values and

our adherence to the rule of law. Our military does not

patrol our streets or enforce our laws in this country. Nor

should it.

I could add that our military doesn't spend its resources and expertise surveilling terrorists in the U.S. like Najibullah Zazi, as the FBI did, to know his every move, to know where he bought the chemicals, to know the amount of chemicals, to know what backpacks they had, and to follow him to New York. It makes no sense to me to have to transfer that jurisdiction.

The second problematic provision imposes burdensome restrictions to transfer detainees out of Guantanamo, section 1033. This provision essentially establishes a de facto ban on transfers of detainees out of Gitmo, even for the purpose of prosecution in U.S. courts or another country.

The provision requires the Secretary of Defense to make a series of certifications that are unreasonable--and, candidly, unknowable--before any detainee is transferred out of Gitmo.

Again, here is an example: The administration proposed eliminating the requirement that the Secretary of Defense certify that the foreign country where the detainee will be sent is not ``facing a threat that is likely to substantially affect its ability to exercise control over the individual.''

How can the Secretary of Defense certify that--facing a threat that is likely to not just affect, but substantially affect, its ability to exercise control over the individual? What does it mean for a nation to ``exercise control'' over a former Gitmo detainee? Does he have to be in custody? Can he have an ankle bracelet? Is he remanded to his home? Is he in some county facility somewhere? What does it mean?

The Secretary of Defense must also certify, in writing, that there is virtually no chance that the person being transferred out of American custody would turn against the United States once resettled.

I agree with the sentiment, but as it is written, this is another impossible condition to satisfy.

The administration tried to work with the Armed Services Committee to make this section more workable, but the input by professionals in the defense, law enforcement, and intelligence communities, quite frankly, was rejected.

The committee didn't address the concerns of the administration except to limit these restrictions to 1 year.

In his November 15 letter, Secretary Panetta wrote he was troubled this section remains essentially unchanged and that none of the administration's concerns or suggestions for the provision were adopted. This in itself is a concern. The views of the professionals who do this day in and day out should be considered. Congress is not on the streets, we are not shadowing terrorists, we are not putting together intelligence. So I find this just terribly imperious.

The third problematic detention provision reverses the interagency process of detention reviews for those detained at Guantanamo.

Let me begin by saying I support detention of terrorists under the law of war. There must be a way to hold people who would, if free, take up arms against us. But detention without charge, perhaps forever, is a power that must be subject to serious review to ensure it is applied correctly and that we are only holding people--in some cases for decades--with cause and careful consideration and review.

Incidentally, this would apply to U.S. citizens. Do we want to go home and tell the people of America we are going to hold them, if such a situation comes up, without any thorough and considered review? It is just not the American way.

In March, the President issued an executive order that laid out the process for reviewing each detainee's case to make sure indefinite detention continues to be an appropriate and preferred course. Section 1035 essentially reverses the interagency process created by the President's order.

Let me just say a few things about this process. The Secretary of Defense is in charge of the decision. He is allowed to reject the findings of an interagency review board that includes a senior official from the State Department, the Department of Defense, the Justice Department, DHS, the Office of the Director of National Intelligence, and the Office of the Chairman of the Joint Chiefs of Staff. They, together, review a case of a person who could be held forever without trial, without charge. They can deliberate on the kind of threat this individual continues.

There are people who are in Guantanamo--or I should say who were in Guantanamo--who were simply in the wrong place at the wrong time. That is possible for an American as well. Everything we are all about is to see that the system is a just system. This is not just and particularly not for a U.S. citizen. I don't care who they are, they have certain rights under the Constitution as a U.S. citizen.

Why should we place the Department of Defense above the unified judgment of five other departments on what is, at its heart, a question about the legality of continued detention, the assessment of the threat a detainee poses, and the options available to handle that individual?

Secretary Panetta is not requesting new authority in this section. Again, reading from the Secretary's November 15 letter, he says:

Section 1035 shifts to the Department of Defense

responsibility for what has been a consensus-driven

interagency process that was informed by the advice and views

of counterterrorism professionals from across the Government.

We see no compelling reason--and certainly none has been

expressed in our discussions to date--to upset a

collaborative, interagency approach that has served our

national security so well over the past few years.

Let me conclude by saying I support the vast majority of provisions in this authorization. The bill improves our national security and it is essential to meet our commitment to the men and women of our Armed Forces. I understand all that, and I have voted for virtually every Defense authorization bill. But I intend to continue to oppose these three detention policy provisions.

I have not made up my mind, candidly, how I will vote on this bill. I guess maybe I see things a little differently than many in this body, because one of the things I have learned in my time here is the importance of the U.S. Constitution--and I have had 18 years on the Judiciary Committee--and what it means to have due process of law, and that means for everybody. That is for the poorest person on the street, the wealthiest person or whoever it is. Criminals are entitled to due process of law.

How can we do this? It may not stand the test of constitutionality. But be that as it may, despite having raised these concerns months ago and offered suggestions to address them, this bill does very little to resolve my three principal concerns and those of the administration about mandatory military custody and the possibility this bill will create operational confusion and problems in the field.

I look forward to the debate. Candidly, I hope sides haven't hardened. The three amendments I will offer will--one will strike the language, one will insert the word ``abroad,'' in section 1032, and one will carry with it the administration's proposal. I hope there will be the opportunity to offer these amendments.

I can't think of anything more serious that we are doing, and I must tell you a lot of effort has gone into putting the FBI in a position by creating a huge intelligence operation within the Federal Bureau of Investigation to be able to deal with terrorist threats in this country. We also have a Department of Homeland Security to do that as well. To now say the military is going to take over in certain situations is going to end up unworkable, if, in fact, this becomes the law and I hope it will not.

I thank the Chair, and I yield the floor.

I only found out this bill was coming up this morning, so the administration is reviewing the largest amendment at the present time.

The other two amendments, we may already have filed those.

We have filed those, but I would prefer to wait until we have the larger amendment, which is being reviewed by the administration, and then I will be making a decision as to which I want to go with.

This is the amendment currently being reviewed by the administration.

Yes.

There are several amendments.

This essentially would strike the detention provisions

and replace them with proposals from the executive branch. It reflects what the White House offered to Senators Levin and McCain as compromise language on the detention provisions to address the opposition raised by the administration.

I have more to say, but I am not sure.

Mr. President, I ask unanimous consent that the pending amendments be set aside in order to call up amendments Nos. 1125 and 1126.

I further ask that Senators Leahy, Durbin, and Udall of Colorado be added as cosponsors to both amendments.