Floor Statements

Mr. President, I want to thank my colleague from Rhode Island for bringing forward this resolution. As the proud wife of an Iraq war veteran, this is an appropriate time. We thank our troops for what they have done in Iraq, for their courage, their sacrifice, and for allowing Iraq an opportunity to forge a democracy moving forward. We also remember and honor the thousands who have lost their lives for us and for our freedom and we thank all of them at this time of year. I rise in support of this resolution.

Mr. President, I would like to join in the comments of my colleague from New Hampshire and the concerns she has expressed, along with my other colleagues who serve on the Armed Services Committee.

But, first of all, I thank Chairman Levin and Ranking Member McCain again for their tremendous leadership on the Defense authorization bill. We have conducted a tremendous amount of work in a short period of time, continuing the long-running, proud tradition of the Senate Armed Services

Committee of professionalism and bipartisanship in support of our troops and our national security.

This is a bill of which we can be proud. In a time of war, this bill supports the men and women of our Armed Forces and their families and authorizes the equipment, training, and resources our servicemembers need to complete their missions.

While I am very proud of this bill and pleased that many of my provisions to reduce wasteful spending and maintain military readiness have been included in the final conference report, I also share the concerns of my colleague from New Hampshire, Senator Shaheen, and other colleagues who serve on the Senate Armed Services Committee--both substantive and procedural concerns--regarding the depot provisions, sections 321 and 327, that were included by the House in the conference report.

When we were informed of this significant language--only last week--I joined a bipartisan group of Senators, including my colleague Jeanne Shaheen, to express our concern and our opposition to including the depot provisions in the final Defense bill.

As ranking member of the Senate Armed Services Readiness Subcommittee--which has oversight over depots, shipyards, arsenals, and ammunition plants--I am troubled that such a significant rewrite of depot statutes was hastily included in the final bill without consulting with key stakeholders and without conducting more complete analysis involving the Senate.

In the coming years, as we ask the Department of Defense to do more with less, the role of our depots and shipyards will become even more important. This is certainly true for our four public shipyards, including the Portsmouth Naval Shipyard, where many of my constituents work on a daily basis to sustain the world's best submarine force.

I share the pride my colleague from New Hampshire Senator Shaheen and my colleague from Maine Senator Collins feel about the Portsmouth Naval Shipyard. Portsmouth conducts maintenance on the Los Angeles- and Virginia-class submarines. In fact, Portsmouth has led the way for the entire Navy with the first-in-class maintenance availability on the USS Virginia.

While I am troubled by the process through which the depot provisions were included in the conference report, I am encouraged that both Chairman Levin and Ranking Member McCain have expressed similar concerns and have committed to addressing these concerns in the coming months.

This process should include an inclusive and thorough vetting of the provisions to ensure we understand all the ramifications of what was included by the House.

As ranking member of the Readiness Subcommittee, I plan to propose to Chairman McCaskill that we hold a hearing on these depot provisions at the earliest opportunity next year.

The capabilities of our depots and shipyards and their role in sustaining military readiness are too important to hastily adopt such potentially far-reaching provisions.

Let me conclude by again thanking my colleagues on the Senate Armed Services Committee. Despite the partisanship that often characterizes Washington, it is encouraging to see that bipartisanship continues to prevail in the Senate Armed Services Committee. That is largely due to the leadership of Chairman Levin and Ranking Member McCain.

I am proud of this bill, and I look forward to it becoming law in the coming days.

I thank my colleagues.

I yield the floor.

Madam President, I rise today in support of the National Defense Authorization Act. In particular, I wish to speak briefly about the detainee provisions contained in the conference report.

I have spoken many times over the last few months about this issue, but due to the importance of these issues--and I think because of some of the unfortunate mischaracterizations we have heard about the bipartisan compromise that passed this body already overwhelmingly and came out of the Armed Services Committee overwhelmingly--I wanted to come to the floor to make some closing points on this.

I would like to start with this proposition: No member of al-Qaida, no terrorist, should ever hear the words ``you have the right to remain silent.'' That fundamental principle is at the heart of the issue we confronted in the Armed Services Committee in addressing the detainee provisions that are contained within the Defense authorization report. The central issue is, how do we best gather intelligence to protect our country from future attacks?

It is common sense that if we tell a terrorist they have the right to remain silent, they may exercise that right. What if they do so and they have additional information about future attacks on our country or, as in the case of the so-called Underwear Bomber--which, unfortunately, in my view, has been cited by some of my colleagues as a success--if that event had been part of a series of events such as the events that occurred on 9/11 where we were attacked on our own soil, what would we have lost? After 50 minutes, the so-called Christmas Bomber was told he had the right to remain silent and he exercised that right and we did not get to question him again until 5 weeks later, after law enforcement officials tracked down his parents in another country and convinced him to cooperate. That is not a good policy to gather intelligence to protect our country, and that is at the heart of what we are trying to address on a bipartisan basis in the Defense authorization bill.

We have to ask ourselves: The events of 9/11, were they acts of war or were they a crime against our country? I firmly believe we are at war with members of al-Qaida; that what happened on September 11 was an attack against the United States of America. Innocent Americans were killed not because of what they did but because of what we believe in and what we stand for as a country.

So when I hear some of my colleagues suggest there are problems with the detainee compromise that was achieved on a bipartisan basis in this body--because we have basically said, if a foreign member of al-Qaida comes to the United States of America, seeks to commit another 9/11 against us, seeks to attack our country or its citizens, that the presumption will be military custody. That those provisions are misguided in some way deeply troubles me. If this wasn't an act of war, then I don't know what is. We need to make sure we treat enemies of our country for who they are and make sure they are not read their Miranda rights.

So in this bipartisan compromise we said there is a category of individuals--members of al-Qaida or associated groups--who want to come to America to attack us or our allies and for whom, yes, there is a presumption of military custody. That way they don't have to be read their Miranda rights or be provided the rights of our civilian system.

We also address the administration's concerns by giving them a national security waiver, by allowing our law enforcement officials the flexibility to come up with the procedures on how to implement the provisions of this bill.

I wish to address what I heard from FBI Director Mueller yesterday, just to be clear on the record, because yesterday FBI Director Mueller raised concerns about these detention provisions saying there is a possibility that looms that we will lose opportunities to obtain cooperation from individuals we have been able to obtain cooperation from in the past.

Well, I am concerned because when FBI Director Mueller came to a group of us, including the chairman of the Armed Services Committee and Ranking Member McCain, he raised operational concerns about this provision, and we said we want to address those concerns. So in the final conference report there is language that was given to us by the FBI to address their operational concerns. It was included in this bill without a comma changed.

So it makes me concerned when we put their language in to address their concerns, saying nothing in this section shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with respect to a covered person regardless of whether such covered person is held in military custody.

So I say to Director Mueller: We put your language in directly, and it makes

me concerned when I hear, in my view, what are political viewpoints rather than what is the reality of what is in this bill, which will allow the FBI to continue its work and will allow for us to hold in military custody those who are seeking to attack our country and will ensure that Miranda rights do not have to be given if that is the best investigative way to go forward to protect our country.

I see my colleague, the Senator from South Carolina, on the floor. I wish to ask him a question about the bill and the detainee provisions, particularly about the authorization for the use of military force. I have heard some people on the floor of the Senate--including the Senator from Colorado, the Senator from Illinois, and the Senator from California--express concerns about the fact that this bill reaffirms the authority of the President of the United States to detain an American citizen who has joined with al-Qaida and who has, as a member of al-Qaida or an associated force, joined arms against our country and sought to kill Americans.

I wish to ask the Senator from South Carolina about this provision and why it is important for our country.

Would the Senator from South Carolina yield for a question?

Isn't it true that included within the Defense authorization language in the detainee provisions is that:

Nothing in this section is intended to limit or expand the

authority of the President or the scope of the Authorization

for Use of Military Force.

In other words, what is the law today--as you just described it--we are reaffirming in this bill. But we are not adding or subtracting from the President's authority that he has, as the Commander-in-Chief of our country, to protect our country against members of al-Qaida.

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

Madam President, I rise today to join my colleagues in expressing my clear and unequivocal support for a balanced budget amendment to our Constitution, Senate Resolution 10.

With our out-of-control and unsustainable debt threatening nothing less than the American dream and the opportunities that will be available for our children and our grandchildren, we need to pass a meaningful balanced budget amendment, and this, in my view, can be one of the single most important steps we can take to get America's fiscal house in order and to save our country from looming insolvency.

Madam President, 49 States in this country have some requirement to balance their budget. The Federal Government should be no different. My home State of New Hampshire has a legal requirement to balance its budget and has long followed this commonsense tradition of fiscal responsibility.

This is a subject I have discussed extensively with my constituents over the last year while I have done townhall meetings throughout our State focusing on our Nation's debt crisis. I have done a PowerPoint presentation to show my constituents the hard numbers on the fiscal state of this country. And it is deeply troubling where we are today: 3 straight years of $1 trillion-plus deficits, over $15 trillion dollars in debt, Medicare and Social Security on a path to insolvency as early as 2024 and 2036, respectively, and nearly half of our debt--47 percent--currently is being held by foreign entities, and the single biggest foreign holder of our debt is China.

I also talk about spending and deficits in terms of how it relates to your average New Hampshire family. In New Hampshire, if you use Washington's budgeting logic where we are borrowing 40 cents of every single dollar--in 2008, the New Hampshire median household income was $66,000. If you used Washington logic, the amount that family would spend would be $107,000 or $41,000 more than they earned. That would never fly in New Hampshire where families sit around their kitchen tables and they use their common sense to balance their budget. Yet in Washington we continue to perpetuate this borrowing to sustain our government every day.

If you look at where we are, one of the most troubling statistics that really impacts our economic growth is the share of our gross debt to the size of our economy or our GDP. That is now 100 percent. Just 5 years ago, that ratio was closer to 60 percent.

As many of us in this Chamber are aware, economists Carmen Reinhart and Ken Rogoff have concluded in a study that over the past century, for nations that reach where we are, where total debt reaches over 90 percent of the size of our economy, there is a negative impact on economic growth. And we can expect lower job growth and fewer economic opportunities. We certainly cannot afford that in this troubling time for Americans.

So not only do we need to get our fiscal house in order because it is the right thing to do so we are not dependent on other countries such as China to fund our government, we also need to do it so we can provide opportunities for future generations of Americans.

New Hampshire citizens understand we cannot keep spending money we do not have. They make those commonsense decisions on their own family budgets. Small business owners in New Hampshire are astounded when I tell them our Federal Government is operating without a budget. They would never run their businesses without a budget. But they do not understand why Congress cannot even perform such a basic function of passing a budget blueprint.

It has now been 958 days since the Senate last passed a budget. I have to say that I was really honored and excited to be the newest appointment to the Senate Budget Committee. However, I have been incredibly, incredibly disappointed that we have not in that committee done the hard work that needs to be done, the thing that is right for this country--to sit down, to make the hard choices, to put together a budget blueprint and to pass a Senate budget, to have the robust debate on the Senate floor about how we prioritize our spending and how we live within our means. The American people deserve better. They deserve us to do our job and to pass a budget for our country that is fiscally responsible.

In that time, in those 958 days that the Senate has not passed a budget, the Nation's debt has increased by $3.9 trillion. When you think about it, it is deeply troubling. I am hopeful that if we bring forward and pass the requirement of a balanced budget amendment to the Constitution, it will also force Congress to do the basic function of putting together a responsible and balanced budget for our country.

I cannot emphasize enough the urgency of passing this budget control measure, the balanced budget amendment, Senate Resolution 10. I think it is important for my constituents and the American people to know, if we pass the balanced budget amendment in this body, in the Congress, this is putting the question to you, to the American people, to decide, do you want the Federal Government to balance its budget?

So when we pass an amendment to the Constitution, we are simply sending along to the States the decision of should we amend our Constitution. I cannot think of anything more important than sending that question to the American people, to our State legislatures, to decide should we live within our means; should we be bound by the same requirements the States have, by the same common sense we find at home to balance our budgets and live within our means.

Madam President, for fiscal year 2011 we spent 24.1 percent of our GDP. That is well above the historical spending average of a little over 18 percent, if we go back to 1960 where the revenue we had has come in. So we are at a huge trajectory of spending at 24.1 percent. Yet in 2011 our revenues only accounted for 15.4 percent of our economy because of the difficult times we are in relative to our economic growth.

Under the Republican proposed balanced budget amendment, we put the handcuffs in place that are needed to put us on a path to eliminate this by capping Federal spending at the historical level of revenue at 18 percent. Why is this important? It is important because we can't continue to spend well beyond our means. We have to acknowledge that a meaningful balanced budget amendment will also cap Federal spending at its historical levels.

It is not difficult to see what will happen if we don't get control of our fiscal situation right now. Budget shortfalls will only get much worse, driven by massive increases in entitlement spending and interest payments, and the reality is the failure to act will result in America going the way of what we see happening in Europe right now, the way of Greece, Italy, and Ireland: our economy in tatters and our standard of living greatly diminished.

We cannot let that happen to our country. We must act now. We must pass this balanced budget amendment in the Senate and send that question to the House and also send that question to the States so the people of this country can decide if we should be responsible and have to balance our budget. Left unchanged, Medicare, Social Security, Medicaid, and other mandatory health programs alone will eventually grow to consume every single dollar of the revenues our government takes in.

Without reform, the Social Security trustees project the program will be insolvent by 2036. As a result, beneficiaries may see a benefit cut of 23 percent in just 25 years. The Medicare trustees project it is even more immediate and dire. The Medicare trustees project Medicare will be insolvent by the year 2024.

It doesn't have to be that way. We need to show the political will and courage to reform these programs, make them sustainable, and to reform them and preserve them for those like my grandparents, who are relying on them, and for future generations to know that these programs will be there. But if we fail to take this challenge on now and continue to kick the can down the road, then these programs will be greatly diminished, and they will continue on an unsustainable path that is bankrupting our country.

In this debate, it is important to remember that in 1997 the balanced budget amendment failed to pass this body by only one vote. At that time, our national debt stood at $5.4 trillion. We now have a $15 trillion debt. That debt equates to about $128,000 per household. That is a huge amount of money to an average household. Under the Budget Control Act, which I opposed last August, the debt will be allowed to reach a new limit of $16.4 trillion, left unchecked.

Congress has raised the debt limit 79 times since 1960, and in just 4 short months since the debt limit was last increased, over $700 billion has been added to our debt, since we took that action in August.

Speaking of the debt limit, the Republican-backed balanced budget amendment will require a congressional supermajority to raise the debt ceiling. That means three-fifths of both Chambers will have to approve unless it is a time of war. That would require a majority in a time of war. That is a very important measure because we can't continue to increase the debt limit without addressing the underlying drivers of this fiscal crisis that faces our country.

I also want to briefly touch on taxes. The Republican version of the balanced budget amendment, S. Res. 10, would require a supermajority to raise tax rates. We have a spending problem, not a revenue problem. Under S. Res. 10, a two-thirds approval of both Houses of Congress would be required for any bill ``that imposes a new tax or increases the statutory rate of any tax or the aggregate amount of revenue.''

My friends on the other side of the aisle are proposing an alternative--S. Res. 24--to the balanced budget amendment that I have just described. While this proposal sounds good, it fails to squarely address the magnitude of the challenges we face. It doesn't apply to all spending. It also doesn't contain a cap on spending. It does nothing to strengthen our entitlement programs, and it does nothing to make it harder to raise taxes. It does nothing to make it more difficult to raise the debt ceiling. In my view, it is insufficient to be meaningful to pass along to the States for a vote.

The Republican alternative contains the elements that I just talked about--a balanced budget, spending caps, a supermajority to raise taxes, and making it more difficult to raise the debt ceiling, unless and until we address the underlying causes of our fiscal crisis.

This issue is deeply personal for me. I fundamentally believe all of us have a duty to make this country stronger than we found it. As the mother of two young children, Katherine, now 7, and Jacob, 4 years old, who are both very excited for Christmas, I want the American dream to burn as brightly for them as it has for me. It is not too late for our country or for this body to make the tough decisions that will put our country on a fiscally responsible path.

I feel a solemn duty to make sure we make those choices now and that we don't continue to kick this can down the road to future generations and burden them with a debt they did not incur. The last thing I want is for my children to ask me: Mom, you knew we were going bankrupt. What did you do to save our country?

Now is the time for courage. All of us recognize the enormity of the fiscal challenges we face, as well as the dire cost of continued inaction in this body. The Republican balanced budget amendment provides a solid foundation that will set our Nation on a fiscally responsible path. This is an urgent need that we have right now. We cannot do what we did in 1997 and fail to pass the balanced budget amendment. We should send this question to the States and let them decide, let the people of this country decide: Should we live within our means? Should we balance our budget? Should we deal with this debt crisis now and make sure our children and all children and our grandchildren will have the same opportunities we have been blessed to have in the greatest country on Earth?

I urge my colleagues to support S. Res. 10.

Madam President, I rise in opposition to the amendment offered by the Senator from California, amendment No. 1125. I would start with this: We have heard repeatedly--not only from the Senator from California but also from the Senator from Illinois--about the number of cases in our civilian system where we have tried terrorists versus the number of military commissions.

I think there is one thing that needs to be clarified upfront here; that one of the first acts the President took when he came into office was to actually suspend all military commissions for about 2 years. So to compare the number of cases in our civilian system versus the number of military commission trials we have had is a false comparison when we suspended these trials for over 2 years. I want to say that upfront.

But I think the chart the Senator shows actually misses the point of why we have this amendment before us; that is, we need to gather intelligence. When we have captured a member of al-Qaida who is planning an attack against the United States of America, the first goal has to be, obviously, getting that person away from where he can threaten us again to kill Americans, but also, just as importantly, to gather intelligence to protect America. The criminal justice system is set up to see that justice is served in a particular case, not to see that we have the maximum tools in the hands of our intelligence officials to gather information.

Yet it seems to me that if you look in the context of Senator Feinstein's amendment 1126 that we have already talked about on the floor, she wants to limit the administration. The case law of our Supreme Court that is going back to World War II would take us before 9/11. And heaven forbid if we had an American citizen who was one of the participants in an incident such as we had occur on our soil on 9/ 11. Our military would not be permitted to hold that person and to question them to get the maximum amount of information and protect our country.

With respect to this amendment she has pending before the Senate, 1125, I want to point out that the amendment would lead to a very absurd result. Essentially what it would say is if you are a member of al-Qaida, planning or committing an attack against the United States of America, a foreigner, and you make it to our soil, as the 9/11 conspirators did who committed that horrible attack on our country, then you cannot be held in military custody. There is no mandatory military custody under those circumstances. Yet we will hold you in mandatory military custody if you are found overseas. So, in other words, please, their goal is unfortunately to come to the homeland, to come to our country to attack us here, and in our country we need the authority to, in the first instance--the presumption should be to hold those individuals in military custody so that we are not reading them Miranda rights. To tell a terrorist: You have the right to remain silent is counter to what we need to do to protect Americans and make sure that--for example, I will use the Christmas Day Bomber as an example because it has been cited so many times here on this floor.

That day, when he was found on the plane, after 50 minutes of questioning, he was read his Miranda rights and he invoked his Miranda rights and remained silent. It was only 5 weeks later after we tracked down his parents and convinced him to cooperate that he actually provided more information.

We are very fortunate that he was only involved in one event, that it was not a 9/11-type event where there were multiple events on American soil planned. But what if after that 50 minutes we waited 5 weeks to get more information, yet there had been more events coming that day? That is what is at issue here. Let's bring ourselves back to September 11. What if we had caught the individuals who were on one of those planes before it took off on 9/11? What if in that instance we would not hold those members of al-Qaida in military custody that instant to make sure that we could get the maximum amount of information from them to hopefully, God forbid, prevent the lifting off of the other flights and what happened on that horrible day in our country's history?

I have to believe that if we were standing here immediately after the events of 9/11, I do not think we would be debating this amendment, deciding whether if you make it to our homeland we will not hold you in military custody in the first instance, to find out how much information you have, to make sure you are not part of multiple attacks on the United States of America.

If the amendment of the Senator from California passes, what kind of message are we sending to members of al-Qaida, foreigners who are planning attacks against the United States of America? We are laying out, unfortunately in my view, a welcome mat to say: If you make to it America, you will not be held in military custody. But if you attack us overseas, then you will be held in military custody. Why would we create a dual standard where we should be prioritizing protecting our homeland, protecting the United States of America? This leads to an absurd result.

I would hope my colleagues would reject the Senator's amendment to say that only those members of al-Qaida who do not make it to our homeland to attack us right here on our soil will be held in the first instance in mandatory military custody. Because our goal has to be here to protect Americans and to make sure we do not create a dual standard where if you are captured over there, we are going to hold you in military custody, but if you are captured and if you make it here, you are going to be getting greater rights, we will process you in the civilian system, and we will tell you you have the right to remain silent. We should not be telling terrorists they have the right to remain silent. We should be protecting Americans. If we were to pass this amendment, it would create an absurd standard where you get greater rights when are you here on our soil. I think that makes us less safe.

I would urge my colleagues to reject both of the Senator's amendments, both 1126 that would deny the executive branch the authority to hold them----

Madam President, I ask unanimous consent for 30 seconds to wrap up.

Madam President, I would ask my colleagues to reject 1126 as well, which would take away the authority of the executive branch as allowed by our Supreme Court and would make us less safe in this country as well as 1125. We have to protect America and make sure we get the maximum information to prevent future attacks on this country.

Mr. President, today I wish to honor the memory of Charles Nichols II, a World War II veteran who helped start the Pease Greeters--a New Hampshire-based volunteer group that honors the brave U.S. service members who touch down at Portsmouth's Pease International Airport.

A decorated marine who represented the very best of America's ``greatest generation'', Mr. Nichols understood the critical importance of showing support for our troops. Thanks to the Pease Greeters, service men and women returning from, and traveling to, Iraq, Afghanistan, and other deployments have arrived at Pease and found smiling faces and a warm welcome--along with good food and a phone to call home.

As a cofounder of the Pease Greeters, Mr. Nichols helped launch a very special Seacoast tradition that sets the standard for how we ought to recognize our service members. I join citizens across New Hampshire and Maine in expressing my gratitude for Mr. Nichols' service to our country, his commitment to supporting America's troops, and his contributions to the life of the Seacoast Region.

Madam President, I also rise in opposition to the amendment offered by Senator Feinstein, and I certainly appreciate the comments of my colleague from South Carolina. It would lead to an absurd result that if we were in a situation where an American citizen became a member of al-Qaida and from within our country attacked Americans and we could not gather the maximum amount of information from them to make sure we could prevent future attacks against our country--that is what is at issue here.

I would like to point out a couple of issues that have not been addressed with respect to Senator Feinstein's amendment.

If you look at the language of that amendment, she says that 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. I think this provision is going to create some real problems for the executive branch. If I were they, I would be in here raising these issues because it does not distinguish--the language-- between an American citizen who is captured overseas versus an American citizen captured in the United States of America.

Let's use the example of Anwar al-Awlaki. Mr. al-Awlaki, a member of al-Qaida, was actually killed by us overseas. So it would lead to the absurd result that we could not detain him to gather intelligence, but we believe that we are authorized--by the way, I agreed with the administration taking that step to take out Mr. al-Awlaki, who was a great danger to our country overseas. So the language as written would lead to that absurd result that would tie the administration's hands, that they can actually kill these individuals, but they can't detain them under military custody and interrogate them to make sure we can find out what they do know and what other attacks are being planned against the United States of America.

Also with respect to the language in this amendment, the language itself is a defense lawyer's dream. You can't hold a U.S. citizen until the end of hostilities. Well, how long can you hold them? I mean, it is not clear. There is no language in that. This is going to be litigated to heaven, and this is an area where our intelligence professionals need clarity. This is going to create more issues for the executive branch in an area that needs clarity and where there needs to be some identified rules and they have to be focused on gathering intelligence to protect Americans.

Senator Durbin has cited the Abdulmutallab case on numerous occasions as a way--as a great case as an example of how we can gather intelligence from enemy combatants to protect America. Let's review the facts of that case again. Fifty minutes into the interrogation, he was told: You have the right to remain silent. He exercised that right because he was given Miranda warnings, and it was only 5 weeks later that we were actually able to get through the Miranda warnings after we went to his parents. Is that the type of system we want? What happened in that 5 weeks? What did we lose in terms of information that could have protected America?

If we can't hold an American citizen who has chosen to be a member of al-Qaida and has participated in a belligerent act against our country to ask them what other attacks they are planning and whom they are working with, how are we going to get information to make sure that-- God forbid--we can prevent another 9/11 on our soil, because that is why they want to come to the United States of America. Also, how do we deal with this issue of homegrown radicals?

Unfortunately, this amendment, in my view, is going to be a situation where we are opening the welcome mat. If you get to America and you can recruit one of our citizens to be a member of al-Qaida, then you don't have to worry about them being held in military custody. You don't have to worry about us using our maximum tools to gather intelligence to protect Americans.

I think this amendment is very misguided. I again would point out that the administration should be concerned about the language in this amendment. It does not distinguish between an American citizen who is captured on our soil who is trying to attack us and one overseas. But either way, if an American citizen has joined al-Qaida and is trying to kill us from within our own country, they have become part of our enemy and are at war with us.

Thank you, Madam President.

I urge my colleagues to oppose the Feinstein amendment.

Mr. President, I ask unanimous consent that Senator Lieberman and I be allowed to engage in a colloquy.

Mr. President, obtaining intelligence from high-value terrorist detainees is an urgent national security priority that is essential to protecting Americans. Unfortunately, under current law, terrorists need look no further than the Internet to find out everything they need to know about our interrogation practices and how they can circumvent them. Under President Obama's 2009 Executive Order 13491, all U.S. Government interrogators are limited to the interrogation techniques that are available online and described in the Army Field Manual. As a result, all members of the intelligence community, including the non-Department of Defense intelligence professionals who support the high-value detainees interrogation group, must conform to the procedures in the Army Field Manual, which was written by the U.S. Army for the U.S. Army; that is, there is little flexibility permitted under these rules, and they are easy for those who want to harm us to circumvent them and to know exactly what techniques we will use to gather information to protect our country if they are detained as an enemy combatant.

Yes, I will.

I thank my friend, the Senator from Connecticut, first, for his leadership in this body on national security. We both had the privilege of serving our States as attorneys general.

The answer is no. This is an amendment, I point out, that not only is Senator Lieberman sponsoring--and I appreciate his experience and leadership on this most important national security issue--but Senator Chambliss, vice chairman of the Intelligence Committee, as well as Senator Graham and Senator Cornyn, who are both members of the Armed Services Committee, as well as the Judiciary Committee. It is very important to be clear about what this amendment would and would not do.

This proposal takes every possible measure to put into place intelligence-gathering practices that honor our American values and laws. Our amendment in no way condones or authorizes torture. There have been many groups trying to misrepresent what is in this amendment. Any new interrogation techniques that are developed would be required to comply with the U.N. Convention Against Torture, the Military Commissions Act, the Detainee Treatment Act, as well as section 2441 of Title 18 U.S. Code that relates to war crimes.

I appreciate the question from my friend and colleague. The decision by President Obama to limit interrogators to the Army Field Manual was based, in part, on the horrible abuses that happened at Abu Ghraib prison in Iraq. Undoubtedly, the abuses at Abu Ghraib failed to reflect American values, tarnished America's reputation, and certainly damaged our interests. However, responding to these abuses by reflexively applying an Army Field Manual--which, to be clear, terrorists can go online and get and know exactly which techniques they will be subject to if captured--to all Federal Government interrogators doesn't reflect the severity of the threat to our country and the importance of providing our nonmilitary intelligence collectors all of the lawful tools they need to gather intelligence to prevent nuclear attacks and protect our country.

I appreciate the question from the Senator from Connecticut. Absolutely, as the Senator pointed out, the Army Field Manual was not created for this purpose. As he mentioned, the high- value detainee interrogation group is a group consisting of the CIA, FBI, and Defense Intelligence Agency, designed to interrogate the worst terrorists, who are likely to have valuable information about future attacks and information we need to protect our country. To address this problem, we drafted the amendment through this authorization that would allow members of the intelligence community, who are assigned to or in support of the high-value interrogation group, to utilize interrogation techniques that are consistent with our laws and values. Our amendment would ask the Secretary of Defense, working with the Director of National Intelligence and the Attorney General, to develop a classified annex to the Army Field Manual that terrorists could not see. Unfortunately, now they can go on the Internet and look at the techniques. It classifies that the Army Field Manual would provide interrogation techniques that would be used by that important select group of intelligence-gathering professionals, to allow them to have for their use the techniques they need to gather information and protect our country.

I thank the Senator for the question. The answer is, no; we are not. We believe torture violates our laws and runs counter to American values. That is what I believe. That is why we specifically require the techniques developed by the Secretary of Defense, the Director of National Intelligence, and the Attorney General have to comply with the U.N. Convention Against Torture and all applicable laws, including the Detainee Treatment Act. Thus, the ACLU's claim the amendment threatens to revive the use of torture is patently false, unfortunately.

Currently, the Army Field Manual interrogation techniques our intelligence community interrogators must follow are publicly listed online. That is unacceptable. It is like the New England Patriots giving their opponents their playbook days or weeks before the game begins. In my experience as attorney general of New Hampshire and as a murder prosecutor, no detective or cop in even a common criminal case would tell the criminals what techniques they are going to use to gather information.

I would grant the leader that request.

I would say probably 5 minutes.

I thank our leader for giving us the opportunity to continue this colloquy.

I just wanted to point out--we were talking about the fact the Army Field Manual is online--that in my experience as New Hampshire's attorney general and prior to that as a murder prosecutor--and I know my colleague served as his State's attorney general as well--no detective or cop on the beat, in a common criminal case--and, of course, we are dealing with a situation where we are at war with terrorists--would ever give a criminal their playbook as to what techniques they would use to question them to get information to see if a crime has been committed and to see that justice is served. Yet here we are in a situation where we have online the techniques from the Army Field Manual while we are at war with terrorists who want to kill us.

What we are saying with this amendment is that we need to allow the intelligence professionals to develop techniques, but in a classified annex, consistent with our laws, that would allow them to gather intelligence and not tell our enemies what techniques will be used to gather information from them.

Not surprisingly, al-Qaida terrorists have taken advantage of our willingness to tell them publicly on the Internet what will and will not happen during an interrogation should they be captured. Al-Qaida terrorists have familiarized themselves with the interrogation techniques they would confront if captured, and they are training on how to respond. That makes it more difficult for us to gather information.

The willingness of the United States to give the equivalent of interrogation CliffsNotes to terrorists places our interrogators at a disadvantage and makes it more difficult to gather the information we need to save American lives. So developing a classified annex of lawful techniques for intelligence professionals who are interrogating the worst terrorists would make it harder for terrorists to train to avoid and resist interrogation.

The key to our amendment is giving this limited group of intelligence community interrogators the techniques they need to gather information but to do so without resorting to torture and while retaining an operational advantage that makes it more likely an interrogation will be successful.

I do. I do agree. As a matter of common sense, this amendment should go forward. The reality of telling our enemies online what to expect just defies common sense. That is what we are addressing with this amendment.

That is right. Unfortunately, we are just telegraphing to our enemies what techniques we are going to use.

I would say the Senator is absolutely right. I appreciate that the Senator from South Carolina has cosponsored this amendment, as has Senator Lieberman, and I appreciate Senator Lieberman's leadership. I would like to say while we are in this colloquy that Senator Lieberman has also been a mentor to me in the Senate, and I appreciate that as well as his leadership on these issues.

Really, it comes down to this: We should not be telegraphing, we should not be advertising to our enemies what techniques our professional interrogators will use. This amendment is limited to the group of professionals who will focus on these issues and who will be gathering intelligence from terrorists.

We have to protect our country. Why would we do this? It just doesn't make sense.

I thank Senator Lieberman very much. Again, I appreciate the Senator's leadership and all he has done for our country, to protect our country. I dare say no one has been more focused on protecting our country, and we deeply appreciate his leadership.

Amendment No. 1067 Withdrawn

Before I yield the floor, I need to briefly discuss the withdrawal of an amendment I have, which is amendment No. 1067, regarding notification of Congress with respect to the initial custody and further disposition of members of al-Qaida and affiliated entities.

I have received assurances from the Armed Services Committee majority and minority staff that these comments and steps which are outlined in that amendment will be addressed when the Defense bill goes to conference.

Therefore, Mr. President, I ask unanimous consent that my amendment No. 1067 be withdrawn. But I also understand that the Armed Services Committee will take up my amendment when the Defense bill goes to conference as part of the conference on this bill.

Mr. President, first of all, I wish to thank Chairman Levin and Ranking Member McCain and remind everyone that this particular amendment addressing detainee provisions passed overwhelmingly on a bipartisan basis in the Armed Services Committee.

The reason we addressed this issue was because we heard witness after witness in a series of months before the Armed Services Committee from our Department of Defense tell us--for example, when I asked the commander of Africa Command, saying he needs some lawyerly help on how to answer what to do with a member of al-Qaida who is captured in Africa. This is an area that cried out for clarification, and that is the genesis of this amendment, which is a very important amendment.

Briefly, two issues. No. 1, the arguments that have been raised about section 1031, including the statement of authority, this is a red herring. This provision was drafted, as Senator Levin said very clearly, based upon what the administration wanted, and also codifies existing law on what the statement authority is in terms of the fact that we are at war with al-Qaida. If people want to disagree with that, that is certainly a policy discussion we can have. But we were attacked on our soil on 9/11, and this codifies the fact that we are at war with members of al-Qaida.

Section 1032 is the military custody provision. Let's be clear on what it does and what it does not do. No. 1, it is very clear on who it applies to. It only applies to members of al-Qaida or an associated force who are planning or carrying out an attack or attempted attack against the United States or its coalition partners. It does not apply to American citizens. We are only saying that if a person is a member of al-Qaida and they want to attack the United States, we are going to hold them in military custody. Why? I prosecuted cases in the criminal system. We don't want to have to----

We don't ever want to have to read a terrorist their right to remain silent. That is the issue here.

Thank you, Mr. President. I yield the floor.

Mr. President, I would like to thank the chairman of the Armed Services Committee for such a thorough analysis of the detainee provisions represented in section 1031 through 1034 of the Defense authorization bill. This is a very important part of the Defense authorization bill, and I certainly appreciate the thoughtful analysis that the chairman did.

I would say that his thoughtful and detailed analysis addressed all the red herrings that have been raised about these particular provisions. Because if you read carefully the language in the provisions that were addressed by the Armed Services Committee, they do provide the flexibility that the administration says they have sought in making the best decisions on how to treat detainees, particularly those who become members of al-Qaida and come to our country to commit an attack against our country. We have to make sure we have the right provisions in place to protect Americans and the flexibility so the executive branch officials are able to decide what is the best track to handle a particular case or member of al-Qaida who comes to our country to, unfortunately, attack us.

I also wish to remind this body that these provisions of the Defense Authorization Act were passed out of the Senate Armed Services Committee on an overwhelming bipartisan basis. In fact, the entire Defense Authorization Act was voted out twice unanimously by the Armed Services Committee, including on Monday of this week, when we again voted out the entire provisions of this act unanimously.

So the particular provisions the chairman just discussed were the result of extensive discussions not only within the committee but also based upon testimony we heard over months from military officials regarding concerns they had about the lack of clarity in our detention policy, and that is where we came to the provisions in 1031 through 1034.

I wish to also remind this body there were many of us who would have gone much further in terms of how we would handle members of al-Qaida who come to our country to commit attacks against our citizens or those who would commit attacks against our citizens or soldiers overseas and our coalition partners. I brought forth an amendment on the CJS appropriations minibus that would have prohibited funding altogether for civilian trials of this same category for terrorists in the United States. So I would have liked to have gone much further. But I respect the amendment the committee voted out, which, in this instance, addressed the administration's concerns of allowing the administration a national security waiver to decide how to handle these cases whether they wanted to take a military track or a civilian track based on the national security interests of our country, which is, of course, what has to be foremost in these cases.

I wish to again remind everyone of the problem we have, which is that the priority, when we are dealing with a member of al-Qaida who is seeking to attack our country, has to be intelligence gathering. We have to make sure we give our executive branch agencies the tools they need to be able to gather information to know about future attacks and to protect our country.

What happens now in our civilian system is, if someone is arrested here, if they are in the civilian system, they are given rights that are part of our constitutional system, which is Miranda rights, for example. If they are in custody and there is interrogation, they have to be told they have the right to remain silent, that they have a right to a lawyer, and that they have a right to speedy presentment. These types of rights are incredibly important to our civilian system.

When we have a terrorist who is a member of al-Qaida, who is a foreigner, and who comes to this country to attack our country, the first thing they hear should not be ``you have the right to remain silent.'' We have to allow our executive branch officials the ability to make intelligence gathering the first priority. This amendment allows that and gives the executive branch the ability to decide in which system they want to treat them and to be able to prioritize intelligence gathering so we can protect Americans and make sure if someone who is a member of al-Qaida comes to our country to attack us, we can gather information without immediately having to tell them ``you have the right to remain silent.''

That is what is so important with this amendment. It was a bipartisan compromise. As I said, there are Members of the Senate, including myself, who would have liked to have gone much further. But we addressed so many of the concerns of the administration they came up with to make sure they had, with these provisions, the ability to not have to interrupt an interrogation, to conduct the interrogation as they saw fit, to make sure they could conduct ongoing surveillance, and to decide whether a military or civilian track was best based on our national security interests.

I will say just one thing with respect to the transfer provisions and the concerns that have been raised about the provisions set forth for transferring detainees from Guantanamo. This is an area that cried out for some clarification, and it is important that the standard the committee came up with is in statute. Actually, as the chairman mentioned, the reason the committee addressed this is because our defense officials raised some concerns about what the waiver provisions should be from Guantanamo. This has been an area of interest of mine because of where we are right now with the Guantanamo detainees.

Unfortunately, the reality is that 27 percent of those who have been released from Guantanamo have gotten

back into the fight and are back trying to kill us, our troops, and our coalition partners. This is an area where it was very important to have clear standards: where transfer would only be appropriate in the instances where we could ensure there wouldn't be recidivism so that we could protect our troops and our partners from having to see the very same individuals we had already had in custody at Guantanamo. So the provisions set forth here are very important to have that statutory standard for when transfers can be made and how they should be handled.

In fact, I would add, when we think about some of the detainees who have gotten back into theater whom we had in our custody at Guantanamo, they are conducting suicide bombings, recruiting radicals, and training them to kill Americans and our allies. Some of the former Gitmo detainees--and I think unfortunately it is a little bit of a badge of honor now to get back into theater and to be engaged in fighting again. Said al-Shihri and Abdul Zakir represent two examples of former Guantanamo detainees who returned to the fight and assumed leadership positions in terrorist organizations that are dedicated to killing Americans and our allies. Said al-Shihri has worked his way up to be No. 2 in al-Qaida in the Arabian Peninsula. We had him in our custody and, unfortunately, he was released. Abdul Zakir now serves as a top Taliban military commander and a senior leader in the Taliban Quetta Shura again fighting us and our allies.

Again, I am concerned that in the world of terrorists it has become a badge of honor to be released from Guantanamo and then to get back into the fight against us. So I just wanted to put in perspective what we heard from our senior defense officials over a period of months in the Armed Services Committee as to why it is important to have a standard that allows the Department of Defense, under limited circumstances and based on protecting our country, to transfer the detainees, but only when we have addressed the issue of recidivism and they are assured that these individuals aren't going to get back in theater and try to kill American soldiers or our allies. That is why this provision is in here, and I am very pleased it is in here to make sure we address this important issue to keep Americans protected and our allies protected.

I will repeat again that this was a bipartisan compromise. This morning the chairman very thoroughly went through each of the issues raised in the Statement of Administration Policy. Also, in my view, he thoroughly knocked down many of the red herrings that were raised about this provision on the Senate floor yesterday by Senators who are seeking to strike this provision from the Defense Authorization Act.

It is important that this body pass this Defense authorization. It is important for not only these provisions, but also so many of the provisions of this Defense authorization that give our troops the tools they need, as we tell them we are here to support them, to make sure we move forward with the Defense authorization, including these important provisions that address how we handle detainees.

Again, I wish to thank the chairman of the Armed Services Committee for his leadership on this issue. I know he has worked very hard in meeting with the administration, meeting with those of us on the other side of the aisle who actually wanted to go much further in coming up with a very strong, important piece of legislation that will protect Americans and move us forward and provide some clarity in an area where we need clarity to make sure our executive branch officials have the tools they need to gather intelligence to protect Americans from the terrorist attacks because, unfortunately, those who are members of al- Qaida still seek to kill us for what we believe, not for anything we have done, and we can't forget that.

So I thank the chairman.

Amendments Nos. 1179, 1230, 1137, 1138, 1247, 1246, 1229, 1230 as

Modified, 1249, 1071, 1220, 1132, 1248, 1250, and 1118 En Bloc

Mr. President, I ask unanimous consent on behalf of other Republican Senators to temporarily set aside the pending amendment and call up the following amendments en bloc: amendment No. 1179 on behalf of Senator Graham; amendment No. 1230 on behalf of Senator McCain; amendment No. 1137 on behalf of Senator Heller related to the U.S. Embassy in Israel; also for Senator Heller, amendment No. 1138 related to the repatriation of U.S. military remains from Libya; for Senator McCain, amendment No. 1247 related to further restrictions on the use of defense funds on Guam; for Senator McCain, amendment No. 1246 related to a commission for U.S. military force structure in the Pacific; for Senator McCain, amendment No. 1229 related to a cybersecurity agreement between the Department of Defense and the Department of Homeland Security; for Senator McCain, amendment No. 1230, as modified, related to the annual adjustment in enrollment fees for TRICARE Prime; for Senator McCain, amendment No. 1249 related to cost-plus contracting--and this is also an amendment that I am cosponsoring; for Senator McCain, amendment No. 1071 related to the oversight of the evolved Expendable Launch Vehicle; for Senator McCain, amendment No. 1220 related to a GAO report of Alaskan Native Corporation contracting; for Senator McCain, amendment No. 1132 related to a Statement of Budgetary Resource Auditability; for Senator McCain, amendment No. 1248 related to authorizing ship repairs in the Northern Marianas; for Senator McCain, amendment No. 1250 related to a report on the probation of the F-35B program; for Senator McCain, amendment No. 1118 to modify the availability of surcharges collected by commissary stores.

I have to make a clarification on an amendment I previously offered on behalf of Senator McCain: amendment No. 1230, as modified, Senator McCain's amendment on TRICARE.

I ask unanimous consent from the chairman of the Armed Services Committee to allow the Senator from Alabama to speak.

I thank the chairman. He is very kind, and it has been wonderful to serve under his leadership on the Armed Services Committee, of which I would say, one of the great experiences in the Senate is that the Armed Services Committee--in a time when people see so much partisan--works on a very strong, bipartisan basis to ensure our country is protected.

With that, I would yield to my colleague who also serves on the Armed Services Committee, whom I have great respect for, Senator Sessions from Alabama.

Mr. SESSIONS addressed the Chair.

Mr. President, I would like to give my thanks to the Senator from Alabama for his comments about the concerns he has about our detainee policy and about how important it is that we have the right policies in place to protect Americans so that we can prioritize gathering intelligence.

I also wanted to share in his concerns about what is happening with the supercommittee in terms of the impact on our national security. There is no question that there are areas where we can do much better and be more effective with taxpayer dollars on defense

spending. But we cannot subjugate our national security for our failure around here to do our job and to have courage to take on the entire budget and bring ourselves on a path of fiscal responsibility.

So I know the Senator from Alabama has been a great leader in this area, and I appreciate his comments in that regard.

Amendment No. 1249

Mr. President, I also wanted to speak briefly on an amendment that has already been made pending that Senator McCain and I are cosponsoring together.

Over the last year, as a new Member of the Senate and the Senate Armed Services Committee, one of the concerns I have had is the way we do contracting at the Department of Defense. My overall impression has been that a third year law student could negotiate much better terms for the United States than we have been negotiating for the country. In some of the negotiations with our defense contracts we end up on the hook when contractors don't perform or it takes longer than they indicate, and we seem to always bear the financial burden of that.

When we look at the fiscal state of the country and where we are, we need to reform that process. That is what drew my interest to this issue. Senator McCain has long worked on this issue of reforming our acquisition process, and I have great respect for the work he has done there. So we have offered on this National Defense Authorization Act amendment No. 1249, which would prevent millions of dollars in wasteful contract cost overruns from the Department of Defense on major defense acquisition programs and help to ensure that our warfighters have the weapons and systems they need to protect our Nation but doing so within budget and on time frames that contractors commit to for our needs to make sure we have what we need to protect our country.

According to the Government Accountability Office, in a March 2011 report entitled ``Defense Acquisitions: Assessments of Selected Weapons Programs,'' from fiscal year 2010 collectively, we ran more than $400 billion over budget and were an average of almost 2 years behind schedule for major defense acquisitions programs.

Today, half of the Department of Defense major defense acquisition programs do not meet cost performance goals. Eighty percent of our major defense acquisition programs have an increase in unit costs from initial estimates that were given. While there can be many factors that explain the cost overruns, the cost-type contracts have been a significant contributing factor in why we have these overruns both for production and development of our major defense acquisition programs. We have to address these cost overruns, particularly at a time when we are asking our Department of Defense to reduce spending. We need to get the maximum bang for our buck and hold contractors accountable when they do not perform what we have contracted them for. We need to make sure the terms of our contracts are good for the United States and are fiscally responsible, and that is what this amendment would do.

It would prohibit the use of cost-type contracts for the production of major defense acquisition contracts and limit the use of cost-type contracts for major defense acquisition development contracts. This represents the core investment in our Nation's military, and as these costs increase, and as the Department of Defense faces the looming prospect of major budget cuts over the next decade, we have to address this now for our troops and for our national security. We have to get this right.

I am hoping for and I ask my colleagues to support this amendment we are bringing forward. Again, I would say on behalf of Senator McCain, who has done so much work in this area, reforming our acquisition process and getting this right is so important to what we are asking our military to do right now, which is to do more with less.

I thank the Chair, and I yield the floor.

Mr. President, I thank the Senator from Georgia for his leadership on the Armed Services Committee and also for the important work he has been doing as the vice chair of the Intelligence Committee to make sure our country is protected. He is particularly knowledgeable on these issues of how we treat detainees, and we did have a detailed colloquy on the floor. His insight has been so important in making sure we have the right policies in place to protect America.

I yield the floor.

Mr. President, I ask unanimous consent to temporarily set aside the pending amendment and call up the following amendments en bloc: Senator McCain's amendment No. 1281 regarding the transfer of arms to Georgia; Senator Blunt's two amendments, Nos. 1133 and 1134; Senator Murkowski's two amendments, Nos. 1286 and 1287; and Senator Rubio's two amendments, Nos. 1290 and 1291.

I yield the floor.

Mr. President, the amendments have been cleared on our side.

Mr. President, I ask unanimous consent that Dennis Deziel, a defense fellow in my office, be granted floor privileges during the consideration of S. 1867.

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

Mr. President, as a member of the Senate Armed Services Committee and as the ranking member of the Readiness Subcommittee, I wish to speak for a few moments and comment on the National Defense Authorization Act.

I will begin by thanking the majority leader for honoring his commitment to bring the National Defense Authorization Act to the floor for debate, amendment, and passage. As Leader Reid pointed out this morning, this would have been the first time in a half century in which we would not have passed a national defense authorization bill. In the midst of two wars, with our brave sons and daughters and husbands and wives fighting in Iraq and Afghanistan, with our country facing a serious threat from radical Islamist terrorists, that would have been unacceptable.

I very much thank Chairman Levin and Ranking Member McCain for their leadership. In this era that has been characterized by gridlock and partisanship in Washington, the Armed Services Committee has represented a welcome exception. The Senate Armed Services Committee has a long-enjoyed, well-deserved reputation for professionalism and bipartisanship as we work across party lines to support our troops and their families who sacrifice so much for our country to keep us safe.

This bipartisan spirit is reflected by the fact that the Armed Services Committee unanimously reported the initial Defense authorization bill out of committee this summer, and did so again this week, after reducing the authorization levels consistent with the requirements we need to meet, in light of the fiscal crisis our country faces, and after revising the detainee compromise to take into consideration some of the administration's concerns.

This year, once again, the quality of Senator Levin's and Senator McCain's leadership is reflected in the quality of the legislation the Armed Services Committee has produced. This bill will ensure that our war fighters have what they need to accomplish their missions, protect themselves, and defend our country.

I am especially proud of the work of the Readiness Subcommittee. It has been a pleasure to work with Chairman McCaskill. Our committee made significant, well-informed reductions that achieve taxpayer savings without endangering our military readiness.

However, going forward, I wish to raise one issue. We have to guard against excessive cuts to our readiness accounts that will leave our troops and our Nation less prepared for future contingencies. In light of the supercommittee meeting in Washington, we have to come to an agreement to avoid what Secretary Panetta has described as catastrophic and a deep concern for our national security if those sequestration cuts occur.

I am particularly pleased key provisions of the Brown-Ayotte ``no contracting with the enemy'' legislation are included in the bill. This provision will make it easier for the Defense Department, contracting officials in Central Command area operations, to void contracts with contractors that, unfortunately, in some instances, have funneled taxpayer dollars to our enemies.

Let me conclude by saying that, again, I very much appreciate the leadership and bipartisan nature of the work done on the Armed Services Committee. This is a very important bill that I am very glad we are going to take up and fully debate in the Senate. I certainly urge my colleagues to pass this bill.

Amendment No. 1065

Mr. President, I ask unanimous consent to set aside the pending amendment and call up amendment No. 1065.

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

Mr. President, the amendment I have just offered to the Defense authorization bill is an amendment that Senator Reed from Rhode Island is joining me in sponsoring.

The amendment itself would allow the Air Force to reduce its strategic airlift aircraft inventory to what they need to meet our readiness needs. It would save $1.2 billion of taxpayer money in the next few years, without compromising the readiness we need to protect our Nation.

Our Nation's strategic air fleet provides global air mobility to the U.S. military. As GEN Raymond Johns, commander of the Air Force Air Mobility Command, said in his statement in a hearing before the Armed Services Committee, where we had this amendment addressed:

The strategic airlift is a national asset allowing America

to deliver hope, to fuel the fight, and to save lives

anywhere in the world within hours of getting the call.

In order to meet this need, the United States uses C-5s and C-17s as their strategic airlift capability, and current Federal law sets the Air Force's minimum number of strategic aircraft at 316. However, the Air Force and the administration--when the Department of Defense submitted their budget request, they made very clear that we don't need to keep the minimum requirement at 316 to meet the needs of our country; that only a minimum requirement of 301 aircraft are needed to meet the strategic airlift capacity requirements of our country. The requirement to maintain the bottom-line limit of 316 is a situation where Congress is requiring the Air Force to maintain planes it does not need to protect the readiness of our country. So it was the Air Force that wanted this amendment to be brought forward to ensure we can save taxpayer dollars--over $1 billion.

This is very important at a time when we are asking our military, as a result of the Budget Control Act, over the next 10 years, to reduce spending by close to $450 billion. So they have to look at areas where we are spending money we don't need or where we are maintaining assets we do not need to meet our readiness.

That is why I brought this amendment forward. It is a commonsense amendment that I am so pleased Senator Reed has joined me on. I hope my colleagues will support it in this time of great fiscal challenges. But the need remains ever present to protect our national security against those who would want to harm Americans and our allies for what we believe in.

We have to allow the Air Force and our Armed Forces to make sensible decisions on where they need to put resources to protect our country. That is what this amendment does. I will say we had a full hearing in the subcommittee of the Armed Services Committee on the strategic airlift aircraft requirement. The military testified uniformly that reducing the number of the strategic airlift from 316 to 301 would put us in a very strong position to meet every contingency that we can anticipate going forward, including multiple contingencies around the world, as well as homeland events.

This area has been studied very carefully. It will allow us to continue to

protect our country, but again, will save $1.2 billion in taxpayer money over the next few years.

I urge my colleagues to support this amendment.

I will yield to the Senator.

Yes, this is a very high priority of the Air Force, because in this difficult time when they are making reductions, this is an area where they can meet our national security needs. Yet Congress has actually asked the Air Force to maintain more planes than it needs. So this is a commonsense provision that is very important to our Air Force.

Yes. Actually, this amendment I am bringing forward is consistent with the administration's budget request they submitted for the Congress's consideration. So this is a situation where, after a careful hearing we had before a subcommittee of the Armed Services Committee, and after the administration had submitted its request, and after the Air Force asked for this, it makes complete sense that we would allow them to reduce this strategic airlift capacity.

This is not going to be a diminishment for States. This is just going to be a right-sizing of the fleet.

What I am concerned about is if we don't pass amendments such as this, where the administration has asked for it, where all of the data supports that we don't need to keep the level at 316, and where we can save $1.2 billion by doing it, how can we then ask our military to make significant reductions if we don't allow them to take such commonsense action such as this?

I thank the Senator.

I thank the chairman.

Madam President, I rise in opposition to the amendment offered by the Senator from Colorado to strike the detainee provisions from the defense authorization markup--provisions that were agreed upon on an overwhelming bipartisan basis in the Armed Services Committee.

I would like to start first by revisiting the history of this and where we are because the reason the Armed Services Committee, in the first place, thought it was very important we discuss this issue in committee and address it is that having participated in hearings over the course of months and months in the Armed Services Committee, there has been witness after witness from our Defense Department who has come in and our military leaders with whom we have been talking about the detention policy and asking

them very important questions about where we are and how we are going to ensure that our military and intelligence community has the tools they need to protect America, and also asking them about this issue of detainees and how we are treating them.

Because one of the important facts my esteemed colleague from Georgia, as well as the ranking member, Senator McCain, mentioned, is that we have a recidivism rate of 27 percent from Guantanamo--those who have reengaged our soldiers again and are back in theater. I was very concerned about this in the Armed Services Committee. That caused, over a series of months, us to ask about the administration's detainee policy.

I just want to share some of the comments that were made over that period of time in February. Secretary Michael Vickers said the administration is in the final stages of revising or establishing its detention policy.

Now, that was 8 months ago, and we are now 10 years into this war. In April I questioned GEN Carter Ham, the Commander of Africa Command, about what we would do if we captured a member of al-Qaida in Africa. Do you know what he told me. He said, ``We would need some lawyerly help on answering that one.''

So this is an area that cried out for clarification on a bipartisan basis because it is so important to ensure that while we remain at war with terrorists that we have the right policies in place to protect Americans. That is why the Armed Services Committee worked very hard.

I thank the chairman of the committee, Chairman Levin, for his diligent work, along with other members of the committee for coming forward with this provision--that the Senator from Colorado is seeking to strike--as well as the ranking member, Senator McCain.

What ended up happening is, we brought forward a compromise that passed overwhelmingly out of committee originally in June. In fact, it passed out 25 to 1, and then the administration raised some concerns about it. In reaction to those concerns, I know the chairman of the Armed Services Committee, as well as the ranking member and some others of us, including myself, sat down with members of the administration to hear out their concerns and to try to accommodate their concerns while still making sure we had a policy that would give proper guidance, would protect Americans, and would fundamentally deal with this issue of making sure, in the first instance, that we reaffirmed our authority that we are at war with al-Qaida post 9/11; second, reaffirming that when we are at war the presumption is military custody because the priority has to be gathering intelligence to protect our country; and then, third, those who are released from Guantanamo, making sure there is a standard in place so they cannot reengage back into the battle to harm our troops, our partners, and our allies.

In that process, that is how this provision was derived that Senator Udall from Colorado seeks to strike with his amendment. If we were to eliminate these provisions, we would be putting our country in a position where these important issues are not being addressed, and they need to be addressed just based on what we have heard from our military leadership over many months in the Armed Services Committee.

So I would also echo what Senator Chambliss, who is the vice chairman of the Intelligence Committee, said. This is an issue that has been thoroughly discussed in this body and cries out for passage in the Defense Authorization Act. I want to point out a couple of very important parts to this. Now, I am someone who, on the recent appropriations bill, the CJS appropriations bill, brought an amendment that would have provided for military commissions trials for members of al-Qaida and associated forces who have committed an attack against us or our coalition partners because I am deeply concerned that this administration has been treating these types of cases as common criminal cases.

When I brought that amendment forward, it did not pass this body. I feel very strongly that the policy should be that we treat these cases for what they are, military cases, because we remain at war and our priorities should be to gather intelligence. But I point out the fact that after my amendment lost, I sat down with the chairman of the Armed Services Committee, the ranking member, and the administration to hear out their concerns.

So while this amendment--I would have gone further in my amendment-- addresses many of the objections that were raised--in fact, I think all of the objections which were raised to the amendment I brought to the floor from the other side; that is, we have given the administration flexibility to make the decision on whether they believe it is appropriate, based on national security concerns, which has to be the primary concern and consideration of how to treat those who have committed an attack on our country who are members of al-Qaida or associated forces, and also who are not members of this country, so who are foreign citizens and are seeking to attack our country or have attacked our country in a way that the administration can decide it is best to handle them in a civilian court or a military system.

So all of the objections that were raised to my amendment--I stand by my amendment--but they are addressed in this compromise. And to hear the objection to it, that there is not flexibility, it is very clear that is just not true when you look at the language in this amendment because we adjusted the amendment to address the administration's concerns to say no interrogation will be interrupted based upon this amendment; that interrogations have to be the priority, and we are giving the administration maximum flexibility under this amendment.

So I do not understand why there are such objections continuing when this is as a result of a very good, strong good-faith effort to address any operational concerns that were raised based on the amendment I brought and even based on the prior language which, in my view, I think was very sufficient.

I want to point out something that is very important. In the course of the discussions we had with the administration on section 1031, which we have heard cited as a section that could be used to detain Americans indefinitely, this section was changed based on feedback from the administration. In fact, the administration asked us to actually strike a provision in it that would have said American citizens--it did not apply to American citizens, and, in fact, had to comply with the Constitution of the United States.

So I am a little bit apoplectic to understand why the administration is raising an objection about something they actually asked to be removed on a section they told us they were satisfied with and based on revisions that we made that they wanted. We said we would be happy to make these accommodations because we wanted to make sure we got this right.

So on that section, I do not understand why we are in a position where the Senator from Colorado is trying to remove it--the administration is objecting to it--when we took the language they gave us and incorporated it directly into the National Defense Authorization Act.

One point I think is being lost: So why is it that this amendment creates an initial presumption for military custody? This is the most important point. The priority has to be in protecting American citizens by gaining available intelligence to protect our country. The esteemed Senator from Illinois cited the case of the so-called Christmas Day or Underwear Bomber as an example of how cases have worked well.

Well, I think it is important to appreciate the facts of that case. This is a situation where the underwear bomber is caught with the explosives strapped to him, where there are hundreds of witnesses on the plane, and they were able to make their case in the absence of any interrogation or confession. What ended up happening is he was questioned at the scene for about 50 minutes? Then he was read his Miranda rights, one of those being: You have the right to remain silent.

Let's think about that for a second. We would want to tell terrorists: You have you have the right to remain silent. Common sense will tell you telling a terrorist they have the right to remain silent is counter to what we need to do to protect Americans. We do not want them to remain silent, we

want them to tell us everything they know. But continuing on with that case, the only reason he reengaged in providing information for our country is because his parents intervened. Weeks later, his parents convinced him he should cooperate with us; that he should provide information and tell us what he knew.

If our interrogation policy for people who commit attacks on our country is going to be, well, we hope a parent comes and intervenes to help us get information that will protect Americans, I think we are in trouble if that is our intelligence-gathering procedure.

So I wanted to point out, since that case is cited as an example by the Senator from Colorado and the Senator from Illinois as to why this section should be struck, if anything, I think that case points out why we need guidance in this area and why it is very important the priority be on gathering intelligence.

That is what this amendment does. It gives the administration sufficient flexibility, based on concerns they raised, operational concerns. If the FBI is conducting an interrogation, they do not have to stop it because of anything in this provision. That is very clear.

If the administration wants to treat someone in a civilian court, even though I do not think they should versus a military commission who is a member of al-Qaida who has attacked our country, that waiver is in here. That flexibility is in here.

This was a reasonable compromise where people like me who would have gone a lot further did not get what we wanted. But what we did do is get a very strong bipartisan compromise that came out of this committee overwhelmingly. When we had a vote at the beginning of the week, and the Senator from Colorado raised the very same amendment to strike this provision, it was rejected overwhelmingly on a bipartisan basis.

So I hope this Chamber will also overwhelmingly reject striking this very important provision from the National Defense Authorization Act.

Again, we cannot be in a position where we spend the next year in the Armed Services Committee again hearing from our military leaders: The administration is still in the final stages of revising or establishing its detention policy. I certainly do not want to hear again from one of our generals, when I ask him about our detention policy and what we are going to do with terrorists: I would need some lawyerly help in answering that one.

This amendment gives us the guidance we need. I would ask my colleagues to reject striking it from the authorization.

I yield the floor.

In response to the Senator from South Carolina, I would say, unfortunately, our country is the goal for al-Qaida, and we saw that with September 11 and the horrible attacks on

our country that day that killed Americans.

They want to come here and harm us and hit us where it hurts us the most. So, unfortunately, America is part of the battlefield. To put ourselves in a position where we would not allow our military intelligence, law enforcement, to have the tools they need to gather the most intelligence to protect Americans on our soil would lead to an absurd result.

I would say to my colleague from South Carolina, when he spoke on the floor he captured the most important part of this; that is, without the amendment we have been debating, we do not even give our military, law enforcement, intelligence officials the ability to decide which system is best in each incident. Rightly so, when you are in our country, when you are an American citizen, you are given your Miranda rights. You are told: You have the right to remain silent. You have the right to have a lawyer. We need to make sure we do not create a distinction where if you are captured abroad, you are treated one way--and we are giving our officials maximum flexibility to gather as much information as possible to protect our country--but if you make it here, the rules are different, and we do not give the officials who are set to protect us every day, both from a military and law enforcement end, the flexibility they need to gather maximum intelligence.

It would just be an absurd result to treat it differently. It would almost encourage: Come to America--unfortunately--to attack us because you will actually be given greater rights if the attack occurs here.

I would agree with the Senator from South Carolina that unfortunately there are threats we face within our own country from homegrown radicalism. But also let's not forget, this amendment, in terms of the military custody, applies to members of al-Qaida or associated forces who have planned an attack against our country or our coalition partners and are not U.S. citizens. So in this provision we are talking about foreigners coming to our country who are members of al-Qaida and who want to harm Americans, if we think about what happened on September 11.

I would also add, I think it is very important what is in this important provision of the Defense Authorization Act, in response to the Senator from California, who raised the case of Zazi as an example where she thought that case would be impacted by this amendment, that is simply, with all respect to the Senator from California, not the case.

Because if one looks at the language in our amendment, we have given flexibility to the executive branch to conduct the interrogations, to have surveillance. So in the Zazi case, there was surveillance undertaken. We put express language in here allowing the executive branch to allow law enforcement to conduct surveillance, to conduct interrogation.

I would point out that provision in terms of the amount of flexibility we have actually given the executive branch. But most importantly, we have dealt with the issue the Senator talked about, which is, in the absence of this provision, when terrorists come to our country and attack us, we are in a position where, under our law enforcement system, they have to give Miranda rights. They have the right to presentment. We are simply saying they have the option to make sure they can put intelligence gathering as the top priority.

So this, as the Senator has identified and talked about, is a very reasonable compromise. As the Senator knows, my colleague from South Carolina, I would have actually liked to have seen this go further. But it is very important that we bring this forward.

That is right. That is the law of the land. That is what is reflected in this provision in the Defense Authorization Act. It is reflective of case law issued by our U.S. Supreme Court, which in not only that case but in subsequent cases basically said, in those instances, you do have to provide habeas-type relief.

I would agree with that. The Senator has already pointed out how important it is to have these provisions in place to give the officials who do this work every day whom we have so much respect for the ability to gather intelligence.

We need this provision to protect our country from attacks on our homeland. It is so important. I would ask one question of the Senator from South Carolina. He is familiar with the military commissions.

I will ask the Senator quickly. The Senator from Illinois said we have only had six civilian trials with terrorists.

Six military commission trials and hundreds of civilian trials of terrorists. I would ask the Senator, did the administration suspend military commission trials for a period of time?

Madam President, I rise today in support of S.J. Res. 6, the FCC Internet and broadband resolution of disapproval. There are so many reasons to support this resolution and oppose the FCC's rulemaking on net neutrality.

I could focus on regulatory overreach, the lack of cost-benefit analysis to justify this rulemaking, consistent court rulings showing the lack of FCC legal authority to implement net neutrality or even the aggressive nature of this administration to regulate at all costs.

However, today I would like to talk about the most important reason to support this Resolution in opposition of net neutrality--jobs.

Last year, the telecommunications industry invested over $65 billion in our domestic economy. These billions of dollars go toward infrastructure, network expansion, and continual upgrades, all of which will drive job creation in a growth sector. For every billion dollars invested, there is a direct correlation to 3,400 created jobs.

What is at stake in this debate is nothing more than the government trying to take over the Internet in a misguided attempt to regulate a dynamic industry into a static platform. This approach will stifle innovation.

If companies are devoting $65 billion a year to building out their networks, but do not have the ability to control and manage their investments, then they are going to stop investing tens of billions of dollars into their product. It really is that simple. No company is going to continue to invest at such a fast rate if they will be forced to cede partial control over to government regulators.

In a down-economy, telecommunications has been one of the few bright spots. Why? Because of a light-touch, hands-off regulatory approach. Now the FCC is pursuing a political agenda by attempting to undermine the industry. The FCC has not won in the courts or through the legislative process in Congress, so it has resorted to expanding the regulatory process.

According to a 2010 study entitled ``The Economic Impact of Broadband Investment,'' 434,000 jobs have been created in the broadband industry in the past decade, and in the next 5 years, we can expect over 500,000 additional jobs to be created.

To help protect these jobs, we must stop this government over-reach. IT investment accounts for 47 percent of all U.S. nonstructural investment and as I mentioned, the job creation from this is a bright spot in our economy. We must continue the hands-off approach

that results in job creation and allows our companies--big, small and everything in between--to do what they do best: innovate, invest in the future, and create jobs.

We need to support policies that encourage investment in tomorrow's technologies, not hamper innovation. According to the FCC's own National Broadband Plan, in 2003 only 15 percent of Americans had access to broadband. Today that number is 96 percent, and we cannot stop until we have 100 percent market-saturation. Parts of northern New Hampshire are included in this remaining 4 percent, so to get the rest of my state, and our great country, access to broadband, we must have policies that encourage private-sector investment and growth.

We have heard it said many times, but it is worth repeating: net neutrality is a solution in search of a problem that does not exist. There is no market failure and no justifiable reason to impose such onerous regulations. Quite the contrary--competition is at an all-time high in the telecommunications and broadband industry. Since the Internet was privatized in 1994, there has been a steady movement away from government control and roadblocks.

As FCC Commissioner Robert McDowell pointed out in his December 2010 dissent to the FCC's rulemaking on net neutrality, there are fewer than a handful of cases of alleged misconduct by an Internet service provider, and each of those cases was resolved by the courts in favor of the consumer. So as you can see, the consumer is well-protected by the existing system and does not need the heavy-hand of the government inserting itself with more regulations.

The White House this week issued a veto threat for this resolution. However, in doing so it made our point for us. The White House says it would be ``ill-advised to threaten the very foundation of innovation in the Internet economy'' but then says we need to keep the Internet ``free and open.'' Well I have news for the White House--the Internet is free and open. I sent a letter, along with 10 of my Senate Commerce Committee Republicans to FCC Chairman Julius Genachowki a couple of months ago asking him to provide a market justification and cost/ benefit analysis for imposing net neutrality regulations. In his response, he could not cite any examples of market failure to justify such a rash rulemaking. Why? Because no rationale exists. There is no market failure.

I fear that if net neutrality were to become law, we would be taking an irreversible step backwards at a time when our economy needs it least.

I urge my colleagues to support this resolution and say no to government attempting to take over the Internet.

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

Mr. President, I ask unanimous consent to speak as if in morning business.

Mr. President, I rise to discuss S.J. Res. 27, a resolution of disapproval of the cross-State air pollution rule. I appreciate my friend, the Senator from Kentucky, for bringing his concerns forward through this resolution. However, this is an issue I have been extensively involved in as New Hampshire's former attorney general, and I believe this resolution is misguided. This issue requires a balanced approach, and when looking at environmental regulations, we must review each on a case-by-case basis. In that vein, I cannot support this resolution.

The cross-State air pollution rule is designed to control emissions of air pollution that cause air quality problems in downwind States-- and New Hampshire is a downwind State--and is estimated to reduce powerplant sulfur dioxide emissions by 73 percent and emissions from nitrogen oxides by 54 percent from 2005 levels.

It is important to note that similar pollution standards have been in place for 6 years--first implemented by the Bush administration in 2005--and many utilities have already taken steps to comply with the rule.

The rule encourages the use of the best technology available so downwind States such as New Hampshire will be able to achieve national clean air standards. Without this rule in place, New Hampshire will be unable to achieve national clean air standards due to air pollution that is outside the State's regulatory control and comes from other States.

In New Hampshire, we have a long, bipartisan tradition of working to advance commonsense, balanced environmental protections. That is the perspective from which I approach this

resolution. From my time as the State's attorney general, I understand well that New Hampshire is one of several downwind States in what is infamously known as ``America's tailpipe.'' For far too long, air pollution generated by Midwestern coal-fired powerplants has been allowed to flow into the jetstream unabated and to settle in New England, leading to diminished air quality in my home State of New Hampshire.

As attorney general, I worked to protect Granite State residents and our environment from air pollutants generated by Midwest coal-fired powerplants. The reality is that air pollution does not stop at State borders, and New Hampshire should not be the tailpipe for pollutants from out-of-State powerplants. It is a matter of common sense to ensure that one State's emissions of pollutants do not unduly harm another State's air quality.

I urge my colleagues to oppose the resolution of disapproval.

Mr. President, I rise to discuss my amendment, No. 753. This amendment would prohibit the use of funds for fiscal year 2012 for the prosecution of enemy combatants in article III courts. Specifically, it applies to members of al-Qaida or affiliated entities who are also participants in the course of planning or carrying out attacks against the United States.

I heard yesterday many of my colleagues from the other side of the aisle, for whom I have great respect, come to the floor to oppose my amendment. I would like to address the issues they have raised and start with this. I think their arguments miss the point. We are at war with these terrorist enemy combatants, members of al-Qaida who are planning or who have planned attacks against the United States of America. In what other conflict has the default or preferred position been to try these individuals in the civilian court systems of the United States?

The primary focus when we capture an enemy combatant needs to be on gathering intelligence to protect the people of this country and our allies. I have great respect for our civilian court system. I have tried many cases. I have both defended criminals in that system, and I have prosecuted criminals in that system. Our civilian court system was not set up to gather intelligence. It was set up to have a fair prosecution of individuals who commit crimes in our country. When people rob a liquor store, the police arrest them, they question them, but the primary purpose is to find out who is accountable for the crime and then within that system to hold them accountable. The primary purpose of that system is not to gather intelligence and to make sure, within that system, we gather as much intelligence as possible of every single connection that individual has, to ensure we are preventing future attacks on our country. That has to be our primary purpose when we are trying to protect the American people.

Those who want to--and this administration wants to--use the civilian court system as the default system, they are undermining, in my view, our ability to obtain valuable intelligence because intelligence does not just come, often, with the brief interview that may happen in a criminal case, sometimes it takes months to gather the type of intelligence we need to protect Americans.

That is why, under the law of war, we allow people to be held in military custody, so we can protect the American people. But also in time, as we develop information, we can go back to those individuals 6 months later and say we just learned from another individual your connection with al-Qaida, your connection with an attack on the United States of America, and gather further information to protect our country. Our civilian court system is not set up to do that because, under this administration, when we treat an enemy of our country, an enemy combatant, under the civilian court system, they are entitled to certain rights, such as the Miranda rights guaranteed under the fifth amendment of our Constitution.

They are, of course, told: You have the right to remain silent; you have a right to have a lawyer. These are rights they would not be read if they were taken into military custody, where they are not required to be read.

That is a fundamental difference that is very important for the American people to think about. When we capture a terrorist, we need to know what else they were planning and what they might attempt to do to our country or our allies. If we capture them and make the decision to treat them in our civilian court system, once we hold them in custody for a certain period in our civilian court system, under our fifth amendment to the Constitution, we have to tell them they have the right to remain silent. Here we are telling terrorists they have the right to remain silent. It does not fit to have a system where we are treating terrorists that way. It undermines our ability to gather information that will protect our country.

I have heard many of my colleagues, including the distinguished Senator from California yesterday, argue that military commissions are not effective in holding terrorists accountable. I have heard cited time and time again the number of convictions in article III courts compared to the number of convictions in military commissions. This is an argument that, in my view, is very misleading because one of the first steps this administration took when the President came into office was to suspend military commissions. To criticize the low number of military commission convictions when the President suspended military commissions for over two years strikes me as disingenuous--if I were making that argument in law school, I think I would have flunked my classes.

The reality is, to say our military commissions are not sufficient is actually very unfair to the military commission system. I find it astounding that somehow that would be cited as a reason not to treat enemy combatants, who are enemies of our country in the first instance, in military custody so we can gather the maximum amount of information from them, and that may take a period of time to do so, a period of time that is not built into our civilian court system because they are also guaranteed rights such as speedy presentment. That does not fit when we need periods of time to gather information to protect our country.

The distinguished Senator from California also raised the case of Mr.

Moussaoui. Our court system is, rightly so, an open system for people to see. In that system, I would give defense counsel all the information I had about a case so they could adequately defend their client. When we are dealing with a case involving the prosecution of enemy combatants, much of the information is very sensitive. It can be sensitive to our national security if it is released. It could be sensitive if the individual being prosecuted gets that information to other people. We saw that, for example, in the Moussaoui case, when he was prosecuted in an article III court where sensitive material was inadvertently leaked.

We also, of course, saw in that case victims of 9/11 having to subject themselves to being mocked by him in our open court system.

Finally, I was astonished yesterday when I heard the argument from the esteemed Senator from California that if someone commits a terrorist act on our soil, they should be exclusively tried in article III courts. She cited Mr. Brennan, who is one of the President's National Security Advisers, in saying we should be using article III courts as an exclusive way to treat individuals who have actually come to our soil to attack our country. To me, that does not make sense.

If a person is a terrorist, a member of al-Qaida, who actually has planned an attack on our country and actually comes to our country to attack us, they are going to be given greater rights because they will be given their Miranda rights, told they have the right to remain silent, they will be automatically treated in our civilian court system and we will have to give them speedy presentment and many of the rights that, rightly so, are included in our article III court system. So what are we saying to terrorists? We are actually going to give them greater rights if they come and attack us here. In my view, unfortunately, it sends the wrong message. I think it is welcoming people to the United States of America, when the message should be, clearly, we are at war with them, we are going to treat them in our military system because they are an enemy of our country, and we are going to make sure we gather the most information from them and their colleagues to protect Americans and our allies from future attacks.

We need look no further than the case of Osama bin Laden for the proof that the process of obtaining information from terrorists is frequently long and difficult, but I shudder to think what would have happen if the detainees from whom we gleaned information that led us to bin Laden were instead read their Miranda rights, remained silent, we brought them here, we had to give them speedy presentment rights. I do not think it is a stretch to say bin Laden might still be at large.

We have to put the priority on protecting Americans by gathering information. We are at war. We have a fundamental duty to protect the American people from the threat of future terrorist attacks. To me, that is the all-consuming priority, more important than extending constitutional rights to foreign terrorists--not American citizens--who are at war with us. I urge my colleagues to oppose civilian trials for this category of the most dangerous individuals with whom we are at war.

Finally, I wish to address one point which was actually quite surprising to me yesterday as well. The distinguished senior Senator from California said these individuals should not be treated as enemy combatants in military commissions is because, she said, it will reduce our allies' willingness to extradite terror suspects to the United States for interrogation or prosecution or even provide evidence about suspected terrorists if they will be shipped off to military commissions in all cases. And she cited that, saying: Our allies are very reluctant to give us evidence in a process where they don't feel the rule of law is present.

Well, first of all, military commissions are historically part of our system. They are consistent with the Geneva Convention and the rule of law.

Secondly, the notion that we would allow our allies to dictate where we would try enemies of our country just seems absurd in terms of what policy we are going to take as the United States of America.

It doesn't make sense to me. Here we have a situation where this administration is taking out--and I agree with them on this, and I commend them for this--terrorists around the world, members of al- Qaida, enemy combatants who threaten our country. We are killing them. Yet the same administration is saying this same category of individuals--that we shouldn't detain them in military custody, we shouldn't try them by military commissions, and that seems internally inconsistent.

It also seems inconsistent that while we have our allies participating with us in attacks against enemy combatants around the world, that they would not transfer detained enemy combatants to the U.S. for fear that we will put them in military custody. It just does not make sense.

I would urge my colleagues to support my amendment. We shouldn't further criminalize this war. We remain at war with terrorists who want to kill Americans. I brought forward this amendment because I firmly believe our priority has to be to gather intelligence and not to provide them Miranda rights and not to undermine, in my view, our military commission system but to treat enemy combatants for who they are--enemies of our country--and make sure we protect Americans.

I yield the floor.

I thank our distinguished Republican leader, the senior Senator from Kentucky, for that question. That is correct. My amendment only applies to members of al-Qaida and associated forces who are engaged in an armed conflict against our troops and coalition forces and who are planning or are carrying out an attack against our country or our coalition partners. It does not apply to everyone who might be termed a terrorist, and it does not apply to U.S. citizens who are members of al-Qaida.

I would answer, yes, it has. My amendment only pertains to enemy combatants against whom Congress has declared we are in an armed conflict. And because we are in an armed conflict with al-Qaida and associated forces, the Congress has authorized the use of military force to combat them, and that is why it is called the authorization for the use of military force.

No, I cannot.

It certainly strikes me as very inconsistent. It is especially odd given that the military commissions were enacted by Congress at the suggestion of our Supreme Court. They were passed on a bipartisan basis and were refined by the Obama administration to its liking. Yet the administration refuses to fully use them as they were intended.

Yes, and yesterday some of our colleagues came to the floor to argue that my amendment would limit the choices available to our Commander-in-Chief in prosecuting terrorists.

I would ask the Republican leader the following: In January of 2009, did President Obama, when he first came into office, issue Executive orders ending the Central Intelligence Agency's detention program, ending the CIA's option for using enhanced interrogation techniques, ordering the closure of the secure detention facility in Guantanamo Bay, Cuba, prior to any study being done concerning how to dispose of the population of enemy combatants there--we now know that 27 percent of them are back in theater--and suspending military commissions?

I do, and the Republican leader is correct that this test case shows that in capturing rather than killing terrorists, we can gain valuable intelligence. Instead of sending Warsame to Guantanamo, though, he was held and interrogated at sea for approximately 2 months. Then law enforcement officials were brought in to read Warsame his rights.

I wish to take a minute to address arguments that were made on the floor earlier by Senator Levin from Michigan, the chairman of the Armed Services Committee. He claimed that if my amendment were to pass, Mr. Warsame would escape justice because we wouldn't be able to prove that he was, in fact, planning an attack against the United States. I wish to point out that if that were the case, my amendment would not apply because my amendment applies to members of al-Qaida or affiliated groups who are also planning or have carried out an attack against the United States, so he would be able to be held fully accountable in the civilian court system.

I wanted to correct that because I think that leaves a misimpression that Mr. Warsame would not be or could not be held accountable under our law.

The second problem with the analysis of the Senator from Michigan is that it ignores what is going on here. The reason the United States had to take the unusual steps of holding Warsame at sea on a Navy ship and then flying him to the United States over the Fourth of July weekend is because of the administration's refusal to use the top-rate detention facility at Guantanamo Bay, Cuba, that we have there for long-term military detention. Because it refuses to use this valuable asset for new captures, the administration has gone to great lengths to treat these enemy combatants who are captured on an ad hoc basis instead of placing them in a long-term detention facility, which places an artificial time period on when we can interrogate these individuals and how long they will be available to gather information to protect Americans.

As the Republican leader has noted, the President's top lawyer at the Pentagon observed that members of al-Qaida are enemy combatants and that Congress has passed an authorization for the use of military force to treat them as such. We need to do that on a consistent basis and use the military

assets we have. We should not have an ad hoc, haphazard approach to treating enemy combatants. We should not Mirandize enemy combatants who are our military captures and then hold them on makeshift prison barges as if we were in the 19th century because the administration refuses to use Guantanamo Bay and then import them into the United States so they can be detained in our civilian court system, tried in our civilian courts, with the possibility that they could be released into the United States if they are acquitted or given a modest sentence, as nearly happened with Ahmed Ghailani.

Now is the time to keep the pressure on al-Qaida, whether in the tribal areas of Pakistan or in Yemen. Our law enforcement officials have done a tremendous job in contributing to the counterterrorism fight. But we cannot, for the first time in the history of this country, take the view of the Attorney General, which is that our civilian court system is the most effective weapon in our conflict with al-Qaida, because that is simply not the case.

Thank you, Mr. President.

Mr. President, our country continues to be at war with members of al-Qaida, enemy combatants who want to kill Americans and that is why Congress authorized the use of military force to combat these individuals. My amendment applies to the worst of the worst. It would prohibit the use of funds for fiscal year 2012 for the prosecution of enemy combatants in civilian article III courts. This prohibition would extend to members of al-Qaida or affiliated entities, and who have participated or carried out an attack against our country or our coalition partners. It does not apply to American citizens.

These individuals, enemy combatants, are not common criminals who just robbed a liquor store. When we detain a member of al-Qaida who is planning an attack on our country, the priority has to be on gathering information to protect Americans. I have great respect for our civilian court system, but it was not set up to allow the time to interrogate members of al-Qaida. We should not be trying these individuals in our civilian system but in military commissions. We should not be providing these terrorists Miranda rights and speedy presentment rights that come with our civilian system.

I ask for the yeas and nays.