Floor Statements

Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration en bloc of the following resolutions, which were submitted earlier today: S. Res. 360, S. Res. 361, S. Res. 362, S. Res. 363, and S. Res. 364.

Mr. President, I ask unanimous consent that the resolutions be agreed to, the preambles be agreed to, the motions to reconsider be laid upon the table en bloc, with no intervening action or debate, and any related statements be printed in the Record.

Mr. President, I ask unanimous consent that the Senate adjourn until 9:30 a.m., on Wednesday, February 1, 2012; that following the prayer and pledge, the Journal of proceedings be approved to date, the morning hour be deemed to have expired, and the time for the two leaders be reserved for their use later in the day; that following any leader remarks, the Senate be in a period of morning business for 1 hour, with Senators permitted to speak therein for up to 10 minutes each, with the time equally divided and controlled between the two leaders or their designees, with the Republicans controlling the first half and the majority controlling the final half; that following morning business, the Senate resume consideration of S. 2038, the Stop Trading on Congressional Knowledge Act.

Mr. President, we hope to have votes in relation to amendments to the STOCK Act during Wednesday's session.

Mr. President, if there is no further business to come before the Senate, I ask unanimous consent that it adjourn under the previous order.

Mr. President, I rise to speak on the National Defense Authorization Act conference report we will be voting on later today.

First, I wish to acknowledge that Chairman Levin and Ranking Member McCain have worked tirelessly to craft the Defense authorization bill to provide our Armed Forces with the equipment and services they need to keep us safe. I thank them, their staffs, and all my colleagues for their diligence and dedication to this important work.

I also come to the floor because I want to share, as I have over the last few weeks, the concerns that many Americans--and especially the people I represent in Colorado--have expressed over the last few weeks about the detainee provisions that have been included in the Defense authorization bill. I wish to make it clear that I still have very strong concerns about these provisions, especially because they have been presented as a solution to alleged gaps that exist in our counterterrorism policy.

It is my strong belief that our military men and women, law enforcement officials, and counterterrorism professionals have done an outstanding job since 9/11 to keep our Nation safe. For 10 years we have killed, captured, and prosecuted terrorists, and I believe--in fact, I know--our system has been successful.

The professionals whom I just mentioned, who are in charge of waging this battle to keep us safe, agree that the detainee provisions are of real concern. That includes the Secretary of Defense, the Director of National Intelligence, and the Directors of both the FBI and CIA.

In speaking to these same concerns that I continue to hold, along with the people just mentioned, the administration has stated:

We have spent 10 years, since September 11, 2001, breaking

down the walls between intelligence, military, and law

enforcement professionals; Congress should not now rebuild

those walls and unnecessarily make the job of preventing

terrorist attacks more difficult.

I know many agree, especially Coloradans, who have contacted me in very impressive and large numbers. They believe, as I do, that these detention provisions could endanger our national security and that we ought to take a hard look at where we are heading.

I strongly objected to these detention provisions back in the summer when the Armed Services Committee first considered them. In fact, I was the only member of the committee who cast a ``no'' vote during the committee markup. I felt a little lonely at that point in time, but I think my judgment has been recognized by the outpouring of concern about where we may be headed.

Let me talk about what they do. The provisions could authorize the indefinite military detention of American citizens who are suspected of involvement in terrorism, without charge, even those captured in the United States. The point I have tried to make over and over again is that this concerns each and every one of us. If these provisions deny American citizens their due process rights under a nebulous, new set of directives, it would not only make us less safe, but it would serve as an unprecedented threat to our constitutional liberties.

Senator Graham, my friend from South Carolina, has stated that if an American citizen takes up arms against the United States, he or she could be treated as an enemy combatant. I agree. However, the dangerous part of that proposition is as follows: How do we go about determining who those individuals are? No matter how serious the charge may be, the Constitution requires us to provide our citizens with due process before they are incarcerated--especially indefinite incarceration. If we start labeling our citizens as enemies of the United States without any due process, I think we will have done real damage to our system of justice in our country, which is admired all over the world.

My colleagues and I all agree that we have to take every action necessary to keep our Nation safe. But what separates us--what makes America exceptional--is that even in our darkest

hours, we ensure that our constitution prevails.

We do ourselves a grave disservice by allowing for any citizen to be locked up indefinitely without trial, no matter how serious the charges against them. Doing so may make us feel safer, it may be politically expedient, but we risk losing the principles of justice and liberty that have kept our Republic strong, and it does, frankly, nothing to make us safer. No terrorist, no weapon, no physical threat is powerful enough to destroy who we are as a people, and that is why we have to remain diligent in ensuring we hold true to the principles that make our country great.

I took note of this very principle in a powerful piece written by two retired four-star Marine Corps generals, General Krulak and General Hoar.

Mr. President, I ask unanimous consent to have printed in the Record the article written by these two generals.

Mr. President, these generals put it right to the point we all need to hear: Our ideals are assets, not liabilities. In that spirit, interestingly enough, we had a very robust debate about these detention provisions, and it bolstered my faith we could continue to have great and substantive debates in this body. Because of the concerns that were raised and serious questions that were presented about the provisions, we were able to secure some improvements that may reduce some of the grave concerns I have outlined here.

I see my good friend from Illinois, who I know is going to speak and who shares some of my concerns, so let me touch on a couple of the adjustments that have been made.

Senator Feinstein's amendment clarified that detainee provisions are not to be interpreted ``to affect existing law or authorities relating to the detention of United States citizens.''

I was a member of the conference committee on this bill, and during the conference committee negotiations resulted in a clarification that was made to ensure these provisions are not to be interpreted to ``affect the existing criminal enforcement and national security authorities of the FBI or any other domestic law enforcement agency.'' These were helpful changes and, hopefully, will prevent the undermining of our constitutional liberties and the disruption of domestic counterterrorism efforts.

However, while I was pleased my colleagues were willing to acknowledge the language presented serious problems and left many questions unanswered, I still remain concerned about the detention provisions. Making changes to the law that have serious ramifications for our Constitution and our national security deserve serious thought and deliberation. Yet to this day we have not had a single hearing on these matters. Hearings would allow us to understand and mitigate the concerns of national security experts such as FBI Director Mueller. Director Mueller testified yesterday in front of the Senate Judiciary Committee and said that because of the requirements of this language, ``the possibility looms that we will lose opportunities to obtain cooperation from the persons in the past that we've been fairly successful in gaining.''

One of our primary goals in these cases is to gain actionable intelligence, and the FBI is very good--in fact, they are unbelievably good--at using a variety of techniques to gather the information we need--techniques, by the way, that fit within the Bill of Rights and the Uniform Code of Military Justice. Some of my colleagues believe that intelligence will be lost if a suspect receives a Miranda warning, but now we may be jeopardizing entire cases by adding new layers of bureaucracy and questionable legal processes.

These detention provisions, even as they are amended, will present numerous constitutional questions that the courts will inevitably have to resolve, and the provisions will present logistical problems that our national security experts will have to wade through. It sure feels to me as though these changes are being forced on an already nimble and effective counterterrorism community against their warnings, and I remain unconvinced of their benefit. I continue to believe the best course of action would be to separate these detention provisions from the Defense authorization bill so we can take our time, speak to experts in the field, and make sure we are effectively balancing our counterterrorism needs and the constitutional freedoms of American citizens. Most importantly, we need to understand and we need to ensure we are not damaging our national security. That is why I made it clear in signing the conference report that I do not support the two flawed detention provisions, sections 1021 and 1022.

All of that said, the Senate has a solemn obligation to our men and women in uniform to pass a Defense Authorization Act. As a proud member of the Senate Armed Services Committee, I understand the importance of this bill for our military and for their families, and while I continue to have serious reservations about the detention provisions and sought to separate them from the Defense authorization bill, we face a single vote on the entirety of the Defense bill, which includes the amended detention provisions. That is not how I wanted to proceed, but that is the choice in front of us.

For those who joined me in voicing opposition to the detention provisions, I thank you. We fought to ensure that the rights of American citizens are not trampled with ease, and we joined the counterterrorism community to demand the full use of existing tools to fight the enemy. We showed that such a debate was worth having and secured revisions to the language that will now help us continue the important work of ensuring that both our Constitution and our national security remain protected.

Although I intend to vote for final passage of the conference bill, I want to make clear I do not fully support the bill. I sincerely believe this debate is not over and there is much work left to do. Over the coming months and years, as a member of the Senate Armed Services Committee, I intend to hold this administration, and any further administration, accountable in

the implementation of these provisions.

I will also push the Congress to conduct the maximum amount of oversight possible as it relates to these provisions. We must apply a heightened level of scrutiny to ensure that what passes the Senate today does not deny U.S. citizens their due process rights and does not impede our counterterrorism efforts by hamstringing our military, the FBI, the CIA, or others who keep us safe. If these provisions stray in any way from that standard, I will be the first to demand hearings and changes to the law.

In conclusion, I believe we owe it to our men and women in uniform to pass a Defense authorization bill, but we also owe the American people a full and honest debate about our national security strategy that keeps us both safe and protects this document--the Constitution--we all have taken an oath to uphold.

With that, I yield the floor.

Madam President, I rise this morning to speak in favor of the legislation that I have authored to amend the Constitution to require that Congress, on behalf of the American people, balance the Federal budget.

Yesterday I spoke about the merits of a balanced budget amendment, and I appreciate the debate that has occurred on the Senate floor which was in the best traditions of the Senate. I particularly have enjoyed hearing Senator Hatch's point of view. I think we have some disagreements about how we implement a balanced budget amendment, but we both agree that we need to put the Federal Government's finances in balance. Perhaps if we both fall short today on these important votes, we can go back and work together in the best tradition of Senator Hatch and Senator Simon. Senator Simon, on our side, was a strong proponent in the 1990s of a balanced budget amendment. Senator Hatch referenced those efforts then.

Let me quickly summarize my arguments for why we need a balanced budget amendment. I start out thinking about Coloradans and the common sense they apply to their everyday finances, and there is a big dose of Colorado common sense in my proposal. It is aimed at finding common ground that both parties and a big majority of Americans can support, and it starts with a constitutional requirement to balance the budget. That is the heart of the issue. It is something on which many of us agree. But my proposal also asks us to avoid the mistakes of the last decade that have resulted in debt that is not only significant but it is exploding.

For example, it would prevent deficit-busting tax breaks for Americans who earn $1 million or more a year. Why should we continue to give additional tax breaks to the wealthiest among us during times when we are in these tough deficit situations?

I would also create a Social Security lock box to keep Congress from raiding the trust fund to hide the true size of our annual deficits. We have been using the Social Security fund as a slush fund to remedy our budgeting problems. That would end.

In sum, the proposal I brought forward is straightforward, it is simple, and upholds the principle: We should pay for our government in a responsible manner.

I think, looking at the Presiding Officer, in your home State most Americans agree to that, most New Yorkers do. Most Coloradans certainly do.

I also want to be clear, there are some important differences between my approach and my dear friend Senator Hatch's approach. We will vote on his proposal today as well.

Senator Hatch's proposal--this is in my estimation--goes far beyond balancing our books, and it is a balanced budget amendment only in part. That is because it includes some unrealistic limitations on our government that could prevent us from securing the retirement of hard- working Americans, undermine our national defense, and send the United States back to a time before Social Security, Medicare, and a host of other important programs were put in place to protect our middle class, the true heart of our country.

Even worse, it locks in some special interest tax breaks that do nothing to grow our economy or create jobs. It, in effect, would turn the Constitution into a document that protects every special tax break that has been successfully lobbied over the years. That is not what our constituents, hard-working Americans, expect from a balanced budget amendment.

On the other hand, my approach is straightforward. It requires us to pay for what we spend. It creates flexibility depending on the economic conditions that we face and the year in which we

find ourselves. But it wouldn't lead to the erosion of seniors' retirement security or it wouldn't lock in special interest tax breaks.

So I say to all of my colleagues, it is time to put aside our political differences, check our ultimatums at the door, and let's work across the aisle and challenge ourselves to put our country first through balancing the budget.

Our debt is $15 trillion and it is growing. The bipartisan cochairmen of President Obama's commission on the debt have called our debt a cancer, and the former Chairman of the Joint Chiefs of Staff, Admiral Mullen, has said it is the single biggest threat to our national security. It is clear it is time to act. We have run out of time to act.

So, as I close, I just want to say the American people have demanded we get our fiscal house in order. As usual, they are a few steps ahead of us, and it is now time for us in the Congress to catch up. So I am asking my colleagues of both parties and both Chambers to support my proposal. This is the right approach. It will enhance our economic security. It will ensure that we keep faith with our children. We shouldn't pass off this unsustainable debt to our children.

Madam President, I urge my colleagues to support this important proposal. I yield the floor, and I suggest the absence of a quorum.

Mr. President, as I rise to ask for the yeas and nays on the amendment, I point out my amendment is not a cover amendment. It includes many of the principles and provisions the House considered in a balanced budget amendment they voted on recently, and it also contains many of the provisions and principles that this body in the 1990s considered when Paul Simon and Senator Hatch and many others led on a balanced budget amendment proposal.

With that, I ask for the yeas and nays on S.J. Res. 24.

Mr. President, I rise to speak in favor of legislation I have authored to amend the United States Constitution to require that Congress balance the Federal budget. The Senate's debate on the balanced budget amendment, which will occur over the next few days, is an incredibly important debate. It is a debate that will spark a wide range of emotions and it will test our policies, goals, and philosophies. Thus, I want to recognize at the outset that we hold strong and differing opinions about the wisdom of adding a balanced budget amendment to our U.S. Constitution. Amending the Constitution is not something any of us in the Senate takes lightly. In fact, we have only amended our Constitution some 27 times in the history of our Nation. Our Founding Fathers in their wisdom designed the Constitution to discourage amendments. They created a high hurdle to clear before an amendment can be passed by the Congress and ratified by the States.

I intend today to make a case for why my proposal, which has been cosponsored by several of our colleagues, meets that elevated standard. Today I aim to explain why this balanced budget amendment will help restore the fiscal health of our Nation, protect our national security, and spur our future competitiveness in the global economic race.

Let me start by discussing some basic facts that color this debate. First, our government debt now totals over $15 trillion. That is $48,000 for every man, woman, and child in our country. Let me say that again: $48,000 for every man, woman, and child. Moreover, we borrow 40 cents of every dollar that the Federal Government spends. The total amount of public debt now held by us equals 68 percent, almost 69 percent, of our gross domestic product. That reflects a level rarely seen in our country's history.

Finally, in August of this year, one of the major credit agencies downgraded our Nation's credit rating because of Congress's inability to work in a bipartisan manner to reduce our debt. I don't think I have to tell the viewers that the last thing our struggling economy or job creation efforts needed was that downgrade. It is little wonder that Americans hold us in such low regard or that other countries wonder what we are doing in the Nation's Capitol.

I could go on and on, but I will not. These facts are appalling enough to most Americans. These are hard-working Americans who balance their checkbooks on a weekly and monthly basis. It is appalling to me that Congress is so unable to resist the temptation to spend without limit while also trying to keep taxes as low as possible. We have even been willing to watch the debt grow to a level where national security experts are telling us that our own self-created problem is a bigger threat than any of our enemies.

In the last several years Congress has taken steps to try to reach an agreement on how to reduce our deficit and pay down our debt. Many of us have spent countless hours working in bipartisan groups to chart a commonsense balanced debt reduction plan. I have not given up hope that we may eventually reach a comprehensive plan to cut spending, reform the Tax Code, and shore up programs such as Social Security and Medicare which are critical to our Nation's middle class. To give up on that goal would be to say to hard-working Americans, we are not serious about ensuring that the American dream is within everyone's reach. After watching Congress struggle to reach even a basic plan to cut spending or reasonably raise new revenues to pay our bills, I am convinced we need additional tools that force fiscal discipline. If we don't put limits on how Congress does its budgeting, the question won't be whether we can stop the bleeding, it will be how much do we cut to the bone or even into vital organs the programs that we value. In other words, without some fundamental reforms now, the foundations of our government will be severely weakened later.

To be sure, a balanced budget amendment will not solve the problem on its own, but a reasonable balanced budget amendment would help us ensure we never get into this position again. Passing my middle-ground, commonsense balanced budget amendment would send a strong signal to the financial markets, U.S. businesses, and the American people that we are serious about stabilizing our budget for the long term. That is the signal they want to see to give them the confidence to expand and create jobs.

Before I move to making the case for specifics in my balanced budget proposal, I want to make a few points about exactly how our skyrocketing national debt affects all of us. As a start, our debt threatens investments we need to make. It harms our ability to compete with countries around the world, it inhibits job growth here at home, and it dampens our innovative spirit. If we don't address our debt now, it would sap the economic power that has enabled our Nation to become the most powerful force on the globe.

Throughout most of our history--perhaps aside from the Great Depression--our economic strength has enabled the

United States to create an environment that is good for business. This strength has then helped our own people on our Main Streets thrive in communities all over Colorado and across our Nation, and it has meant that every generation has been able to build on their parents' success, seize opportunity, and live the American dream. We all know this is what has made the United States exceptional. But today across our great country, families are wondering whether the American dream is still within their reach. Whether you are a college graduate and living at home because you are unable to find a job or a middle-aged factory worker laid off for the second or the third time struggling to pay your bills, our economic future seems a bit tougher.

Our country has endured a terrible economic slump for over 3 years now. In order to move quickly to turn things around, we need businesses to hire again. Business and community leaders across Colorado and elsewhere have told me that in order to have the confidence to do that, they need to know our national debt is not poised to send our economy off a cliff. The cochairman of President Obama's bipartisan commission on debt reduction tapped into that sentiment and called our debt a cancer that is eating away at our economic health. Beyond pure economic factors, our growing debt burdens us more broadly.

The former Chairman of the Joint Chiefs of Staff, for whom we all have enormous respect, ADM Mike Mullen, warned that our national debt is ``the single biggest threat to our national security.'' By now these are familiar arguments here on the floor of the Senate. We know the challenges that confront us. The problem is Congress is not doing what every economist and every one of us in this body acknowledges we must do, and that is get our out-of-control budget under control. We all have our theories for why this is the case. I personally believe that part of the problem is the nature of Congress itself. We are all temporary single Members of a greater body. We each have our own constituents, goals, and responsibilities. It is sure tempting to come to Washington, fight like hell for our corner of the Nation, and lose sight of or willfully ignore the bigger picture. As Members of Congress, it seems as if we are hardwired to fight for results that are important to our constituents and our political ideologies.

Let me give you a couple of examples. Democrats are reticent to support meaningful adjustments in entitlement spending, and many of my Republican friends turn a blind eye to the revenues needed to support retiring baby boomers and our national security needs.

My father, who had the great privilege of serving for 30 years in the House of Representatives as a Congressman from southern Arizona, witnessed this same phenomenon several decades ago, and he used to recall the advice that was given to freshmen House Members. That advice was: ``If you want to get ahead in Congress, do two things--vote for every appropriations bill and against every tax bill.''

In many ways the Federal budget deficits we face are so daunting today because too many Members of Congress have taken that advice literally over the past decades, but also because it is what Americans expected of us. It is only natural that people want the best of both worlds. We cannot continue down this budgetary path and hope that the results will be any different than they have been in the past.

In fact, the results get worse by the day. Based on what I hear from Coloradans, our constituents are now ready to make a little sacrifice. They are ready for us to make some tough decisions that may cause a little budget pain. Americans now get it, and that is why it is time for some serious action. A balanced budget amendment to our Constitution is serious action. It would require us to consider our larger, collective obligation to the national economy.

I will admit that my support of the balanced budget amendment has not made me particularly popular with some of my Democratic colleagues. Democrats traditionally have not been big fans of the balanced budget amendment idea. These days Democrats are suspicious that balanced budget proposals are a Trojan horse. They look good on the surface, but actually they are designed to further dismantle government programs that most Americans value. But a few decades ago Democrats were leading the charge for a reasonable balanced budget amendment.

Most notably, Senator Paul Simon of Illinois--a progressive and serious-minded legislator--was perhaps the greatest champion of a balanced budget, and I want to share with my colleagues some of his words. In debating the balanced budget amendment in 1993, Senator Simon said the following, which he addressed to his fellow progressives:

I am here to tell you that the course we are on, unless it

is changed soon, absolutely threatens all of the programs

that you and I have fought for and believe in so strongly.

The fiscal folly that we followed for more than a decade has

brought us to a crossroads. We face a basic decision, whether

through default or through our actions to choose wisely the

course that will lead us away from the brink.

If we do not act, interest payouts will spiral upward until

they consume not only Social Security but health care,

education, transportation investments--every need on our

national agenda. My warning to you today is that a rising

tide of red ink sinks all boats.

That is a powerful warning from a very wise and respected colleague. His warning is even more serious in December of 2011 than it was in 1993.

There are not any easy answers here, especially since our aging population and the post-9/11 national security needs have squeezed our Nation's budget in ways we have seldom seen in our country's history. But it is time for us to listen to hard-working Americans who are telling us loudly and clearly, make the tough decisions necessary to get our national debt under control. So I say to my colleagues here today, it is time to put aside our political differences, check ultimatums at the door, work across the aisle, and challenge ourselves to put our country first.

I want to reiterate a point I made earlier, which is that a balanced budget amendment is not the sole answer to the problems we face. It is not a perfect solution, and I recognize that. For example, it will not help us deal with our current debt, much less reduce it. For that we need a comprehensive plan along the lines of the recommendations of President Obama's bipartisan commission. It has been headed by former Clinton Chief of Staff Erskine Bowles and former Senator Al Simpson.

Two years ago I helped create the Bowles-Simpson Commission, and I continue to believe its recommendations, which would lower the debt by more than $4 trillion over the next decade, are the best place to start on a path toward fiscal soundness. Let's own up to the mistakes of our past and take charge of the opportunity staring us in the face by passing the Bowles-Simpson debt reduction plan. That plan would require all of us to put some skin in the game, and it represents our best path to balance our books.

I have also fought for bipartisan proposals to create a Presidential line-item veto to ban earmarks and to enforce pay-as-you-go budgeting. These should all be and could be and must be tools in our responsible budgeting toolbox. Even though we have to find the courage to get our current fiscal house in order, we also need to have stronger rules in place to ensure Congress is not tempted to fall off the wagon in the future. In my view, passing a balanced budget amendment to prevent us from ever again trading fiscal responsibility for political expediency is a critical step we must take.

That long windup brings me to the balanced budget amendment proposals under debate in the U.S. Congress today. Let me start by saying that I was pleasantly surprised to see last month the U.S. House of Representatives pursue a balanced budget amendment that was more realistic than what some of my Republican colleagues here in the U.S. Senate have proposed. The House proposal required a balanced budget unless three-fifths of the House and Senate agreed there was an economic downturn, a national disaster, or another emergency that required temporary expenditures and increases thereon.

It was a straightforward measure, and it was designed to garner a broad range of support. However, the House

proposal fell short by nearly two dozen votes, largely because it did not win enough support from Democrats. As we know, in order for a balanced budget amendment to succeed, it must be bipartisan. So I was surprised to see that after the House balanced budget amendment failed, instead of seeking to find consensus with those who could bring along additional Democratic votes like me, my colleagues in the Senate on the other side of the aisle, led by my dear friend Senator Hatch, have taken an altogether different route.

There are important differences between the two approaches the Senate will vote on this week, my amendment and Senator Hatch's amendment. So I want to spend some time differentiating between the two proposals because they represent two philosophically different ideas. We will have a vote on both of these proposals later this week.

Balancing our books is a simple equation based on the principle that our Nation is healthier without an unreasonably large debt load. Members of both parties can agree on that. Yet Senator Hatch's proposal goes a number of steps further and seemingly seeks to shrink government altogether. Not only does it require an unwieldy two-thirds majority to waive it in case of national emergencies, it also locks in special interest tax breaks and could weaken Social Security, Medicare, and other important programs that are supported by a vast majority of Americans.

Ironically, Senator Hatch's proposal--at least by some analyses-- could jeopardize our national defense as well. Why do I say that?

I see my dear friend on the Senate floor. I look forward to engaging with him over the course of this important debate.

The Republican proposal prevents government from spending more than 18 percent of gross domestic product, which is less than the historical average, less than what George W. Bush spent, less than what Ronald Reagan spent, and less than what is required to care for our Nation's seniors and protect our homeland against terrorist attacks. Quite simply, to my way of looking at this, Senator Hatch's alternative proposal goes too far and has the potential to harm our middle class and future economic growth.

So what am I proposing? Well, let me tell you what I think my proposal would do, and I would note that it is cosponsored by a number of my colleagues from across the country.

My amendment would allow us to avoid the mistakes of the last decade without locking ourselves into a requirement that could tie our hands in an emergency. In such a case, if we tie our hands, we could make our economy worse for the middle class and small businesses and therefore for all of us.

My balanced budget amendment proposes and incorporates a big dose of Colorado common sense. It is aimed at finding common ground that both parties and a big majority of Americans can support. It starts with a strict requirement for balancing our books. My proposal would then allow deficits only when three-fifths of the House and Senate vote to address serious economic downturns or a war or other emergencies. However, it would also prevent some of the worst mistakes Congress has made in the past 10 years. For example, it would prevent deficit- busting tax breaks for Americans who earn $1 million or more per year. I think the Presiding Officer and I have a fundamental question. We wonder why we should continue to give tax breaks to the wealthiest among us during times when we are running huge deficits and aggregating debt like never before.

My amendment would also create a Social Security lockbox to keep Congress from raiding the trust fund to hide the true size of our annual deficits. Right now, the Treasury Department owes close to $3 trillion to the Social Security Administration. What I want to do is to see that never again is Social Security used as a slush fund to remedy our budgeting problems.

In sum, my proposal upholds the principle that we should pay for our government in a responsible manner, with waiver authority to be used only in exceptional circumstances. I think most Americans could agree to that. Coloradans certainly do.

I encourage all of my colleagues to acknowledge that passing a balanced budget amendment will require some flexibility and cooperation, and my version is designed to do just that. It is meant to bridge the divide between us.

The American people are demanding that we get our fiscal house in order. As usual, they are a few steps ahead of us. We have an opportunity to catch up to the American people. So I am here on the floor of the Senate today to ask my colleagues of both parties and both Chambers to support my proposal. As I have said, amending the Constitution may not be the solution desired by many in this Chamber. It is not something to be done without great thought. I, therefore, look forward to an honest and spirited dialog about the balanced budget amendment. I look forward to discussing the best ways to dig ourselves out from under our suffocating debt in a way that will encourage investment and job creation and help Americans and small businesses feel secure about their economic future. Our children's future depends on it.

I yield the floor.

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

Madam President, I came to the floor to speak about Richard Cordray's nomination to lead the Consumer Financial Protection Bureau, but I wish to acknowledge the remarks of Senator Manchin. We have coal miners in my great State of Colorado. They are particularly located in the northwestern section of our State. They are hardworking. They are patriotic.

We have some of the cleanest coal in the world. It is used all over our country and exported to many countries around the world.

I thank him for his remarks and for drawing attention to their accomplishments and their contributions to America.

Madam President, I come to the floor to put in a word for Richard Cordray, who has been nominated to lead the Consumer Financial Protection Bureau, which is otherwise known as the CFPB. Nearly 2 months ago, I urged our leaders to prioritize a vote on the nominee because without a Director of the CFPB, there is important consumer protection work being left undone. It is work that would benefit hard-working Coloradans, those citizens of New Hampshire, and families all across our Nation.

I wish to begin my remarks by thanking both the majority leader and the Republican leader for moving to this important nomination. After having done that, I wish to turn and speak directly to Coloradans and any other Americans who may be listening. We get up here as Senators, and we will talk about this agency or that agency. Frankly, at times it sounds as if an alphabet soup. But this agency is not just another alphabet agency. The CFPB may be one of the most important Federal agencies we have, and it should be allowed to open its doors fully and begin the important work of protecting our consumers. The CFPB was created in the Wall Street Reform and Consumer Protection Act to protect American consumers from predatory and unfair financial practices. It was chartered to prevent the same kinds of abuses banks and other large financial firms engaged in as they drove our economy into the ditch just a few short years ago.

When we look back at the financial collapse in 2008, many of us still cannot believe the largest banks and financial institutions in our country were able to put our economy at such risk. As drastic measures had to be taken and billions of dollars invested in these firms, it certainly didn't seem fair that banks and other financial institutions should get taxpayer help after having taken advantage of the good intentions of American consumers and, as a result, tanking our economy.

The truth is we were forced to act in the Congress or even worse financial troubles awaited us--in fact, potentially a worldwide financial depression. That is why the Congress created the CFPB, to ensure that kind of abuse never happens again. When we passed the Wall Street Reform Act, Congress made clear its intent to create a watchdog with the responsibility to make the financial marketplace safe for consumers.

I think the Presiding Officer would agree that is something we should all want, to make sure Americans are not being taken advantage of by big businesses and Wall Street bankers, to ensure someone is looking out for the little guy, to ensure there is slightly more of a level playing field for the Americans who play by the rules.

Unfortunately, it is not. Many of our colleagues are raising a host of issues related to one central argument, that the CFPB will not be accountable to Congress and it will go hog wild in its efforts to look out for hard-working Americans. Yes, that is right. They argue the CFPB will have too much power to protect consumers. I know that seems strange to hear, especially after the banking sector abuses nearly sent our economy down an irrecoverable path and millions of Americans saw many of their investments and much of their net worth disappear overnight. But, yes, some of our colleagues actually want to weaken the consumer protections that were included in the Wall Street reform bill which, by the way, is the law of the land. In order to make sure that happens, they vow to block, to filibuster all nominees to head the CFPB, regardless of who they are. There have been blanket statements made at the front end of this effort that whoever the nominee is, that person will be blocked.

It strikes me that by doing that, they think they are going to deny the CFPB a Director and that will erode the Bureau's effectiveness and make it easier for banks to operate without limitation. That is precisely why we have to overcome the filibuster that is being waged against Mr. Cordray right now. Without his leadership and a strong CFPB to look after the interests of consumers, we are going to put the financial security of hard-working American families at risk and the country's economic recovery at risk. By failing to give the CFPB a Director, a confirmed Director, we are actually reducing oversight of predatory lending and deceptive banking practices. These are practices that in no way help our economy or our economic recovery.

I do not think I am stretching the facts saying this. Deceptive financial practices continue to threaten Americans every day, and we can do more to ensure these abuses are brought to an end. Let me focus on one particular area.

Credit reporting agencies continue their deceptive ads on Web sites with misleading names such as www.freescore.com and www.freecreditscore.com that lure people into a costly credit monitoring service. They do not offer free credit scores at all. Instead, what they do is they take the person's credit card number and then they begin charging them a monthly fee. It is a similar hustle that many other too-good-to-be-true Web sites offer. The problem is this deceptive ad strikes at the heart of America's personal financial health. A person starts by doing the responsible thing--trying to check their credit score--but the next thing they know their credit card is being charged and they don't have that important data tied to their credit score.

The point I am trying to make is without a confirmed director, the CFPB has diminished power to investigate the actions of the major credit reporting agencies and pull down these kinds of deceptive ads. That doesn't make any sense to me. It is sort of what Coloradans have been asking me, along these lines: When are you guys in DC, when are you guys in the Senate going to side with us and stop always looking out for the big banks?

In these tough economic times, we need to do all we can to block such dishonest advertisements and help empower consumers to avoid these financial traps. The CFPB is the best way to accomplish these important goals, but it needs a director to be able to act.

As some watching today know, and I hope Coloradans know, the Wall Street reform bill contained a bipartisan provision I authored that now requires lenders and other creditors to actually provide consumers a free credit score when their score is used to deny them credit or they are offered credit with less favorable terms.

I authored this provision because credit scores are the most important and influential measure of a consumer's creditworthiness. As millions of Americans continue to work to repair their credit status in the wake of the Nation's worst financial collapse since the Great Depression, it is my belief that the CFPB must fully implement its congressionally appointed oversight of consumer credit scores and related products to stop deceptive advertisements and other setups. So I will say it again: In order to carry out this mission, the Senate must confirm a director to head the CFPB.

The Consumers Union--one of the leading consumer advocates in the United States--is urging Congress to confirm Mr. Cordray so the Consumer Financial Protection Bureau can tackle other critical consumer protections such as reducing the penalty fees and punitive interest rates banks can charge, requiring credit rating agencies to maintain accurate consumer credit files, and investigate and fix errors reported by consumers. I know the Presiding Officer has heard stories about consumers who are operating in good faith and then they come to find out their credit files are not accurate and they are penalized because of that situation. The CFPB could require credit agencies to maintain accurate files.

Finally, the CFPB could police the mortgage market to stop scams against consumers and prevent the return of the toxic loans and the dangerous lending practices that led to the foreclosure crisis and, ultimately, the recession.

I don't think I am overstating the situation when I say there are still a slew of unsafe financial products and services in the marketplace. When consumers are lured into those traps, they then can get into a high-interest debt situation, and then that affects all of us. It affects our economic health more broadly. So the CFPB would be given the capacity to tackle these abusive and deceptive practices and then be on the lookout for the next breed of financial scam.

For these reasons, it is my hope the Senate will take action quickly to confirm Mr. Cordray's nomination and then put in place an effective consumer financial watchdog to ensure Americans get the tools they need to take control of their own financial destinies. It will help our economy; it will help Americans; it will help small businesses. This is the right approach. Let's confirm this gentleman to head the CFPB.

I thank the Chair, and I yield the floor.

Mr. President, I wanted to rise at this time in support of the Feinstein amendment No. 1125, which would modify the requirement that the Armed Forces detain suspected terrorists by adding the word ``abroad'' to ensure that we aren't disrupting domestic counterterrorism efforts. And I would like to correct the record because some of the opponents of the amendment have stated that by inserting the word ``abroad,'' we would be preventing the military from detaining al-Qaida terrorists on U.S. soil, and that is simply not true.

The President knows and my colleagues know that I am not comfortable with the detention provisions in this bill because I think they will undermine our fight against terrorism. But this would be an important change, a narrowly focused change in the provisions that have already been put on the floor.

Mr. President, is the vote imminent?

Mr. President, I rise in support of the Feinstein amendment No. 1125, which would modify the requirement that the Armed Forces detain suspected terrorists by adding the word ``abroad'' to ensure we are not disrupting domestic counterterrorism efforts. I wish to correct the Record, because some of the opponents of this amendment have stated that by inserting the word ``abroad'' we would be ``preventing the military from detaining al Qaeda terrorists on U.S. soil.'' This is simply not true.

I am not comfortable with the detention provisions in this bill because I think they will undermine our fight against terrorism. While section 1031 of this legislation will authorize the military to detain terrorists, section 1032 requires that the military detain certain terrorists even if the FBI or local law enforcement is in the middle of a larger investigation that would yield the capture of even more dangerous terrorists.

This may disrupt the investigation, interrogation, and prosecution of terrorist suspects by forcing the military to interrupt FBI, CIA, or other counterterrorism agency operations--against each of these organizations' recommendations, including the military's. This would be an unworkable bureaucratic process that would take away the ability to make critical and split-second decisions about how best to save Americans lives. That is why the director of the FBI and the director of National Intelligence have strongly opposed the underlying provisions.

The Feinstein amendment would simply provide the needed flexibility for the FBI and other law enforcement agencies to work to fight and capture terrorists without having to stop and hand over suspects to the military. However, even with the Feinstein modification, with the authorization in section 1031 the military could still detain a suspected terrorist but would not have to step in and interrupt other domestic counterterrorism operations.

In other words, the Feinstein amendment would do nothing to prevent the military from acting, it would simply take away the mandate that they interrupt other investigations. I still do not believe we should enshrine in law authorization for the military to act on U.S. soil, but to argue that adding ``abroad'' to section 1032 would take away from the authority given in this bill is just wrong.

Clarifying that the military is only required to detain suspected terrorists abroad is the best approach to address the FBI's concerns about this legislation, and it is the best approach for our national security. What we are doing is working. We should not take away the flexibility that is necessary to keep us safe.

Passing this amendment would be welcome news to Secretary of Defense Panetta, Director of National Intelligence Clapper, FBI Director Mueller, and CIA Director Petraeus--who oppose the intrusive restrictions on their counterterrorism operations that the underlying bill would create.

The other side has argued that this is fundamentally about whether we are fighting a war or a crime. I think that is a false choice and it does a disservice to our integrated intelligence community that is fighting terrorism successfully using every tool it possibly can. We can debate this in theoretical, black-and-white terms about whether this is a war or a crime. Or we can get back to the business of taking on these terrorists in every way we know how, including by using our very effective criminal justice system. At the end of the day, it is about protecting Americans, protecting this country. Why on Earth would we want to tie our hands behind our back?

Our national security leadership has said the detention provisions in this bill could make us less safe. We should listen to their concerns and pass this amendment to preserve the U.S. Government's current detention and prosecution flexibility that has allowed both the Bush and Obama Administrations to effectively combat those who seek to do us harm.

Again, I encourage my colleagues to support the Feinstein amendment, to keep faith with the Directors of the FBI, the DNI, the Secretary of Defense, and our Attorney General, who say these provisions could create unwanted complications in our fight against terrorism.

Let's adopt the Feinstein amendment. It will help us win the war against terror.

Thank you, Mr. President.

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

Mr. President, I rise today in support of amendments Nos. 1125 and 1126, which have been offered by the Intelligence Committee chairwoman, Senator Feinstein.

While the Senate did not adopt my amendment that would have instructed the Senate to consider these detainee matters separately from the Defense authorization bill, I believe Senator Feinstein's amendments make important changes and improvements to the bill-- improvements that may yet avoid a problem with a Presidential veto.

I thank the Presiding Officer for his comments yesterday on the detainee provisions that are in this proposed legislation. I urge my colleagues to support these amendments. I want to be clear. I intend to support them.

I have serious concerns going forward about the unintended consequences of enacting the detainee provisions in subtitle D of the Defense Authorization Act. These amendments help to alleviate some of my concerns.

I wish to, in the context of the debate we are having, note that in addition to the Secretary of Defense, Leon Panetta; the Director of National Intelligence, General Clapper; and FBI Director Mueller--who all oppose the detainee provisions--CIA Director Petraeus's senior staff has indicated they, too, oppose the detention provisions. The CIA believes it is important to preserve the current U.S. Government's prosecution flexibility that has allowed both the Bush and the Obama administrations to effectively combat those who seek to do us harm.

After the vote yesterday, I had a chance to talk with a number of Members on the other side of the aisle and, frankly, on the other side of the debate, because this had bipartisan support on both sides of the debate. But the folks I talked to told me they did not support my amendment, but they were still interested in making some more targeted changes to the detention provisions. I hope those colleagues will take a close look at what Senator Feinstein is offering here today.

Let me speak to specifically what she would help resolve with her amendments. There are two important shortcomings that still exist in the current bill. One of her amendments would preserve the flexibility of the military, law enforcement, and intelligence agencies to collaborate, without undue limitation, in any investigation, interrogation, and prosecution of suspected terrorists. The other amendment would make it clear that American citizens cannot be held indefinitely in military detention without a trial. Again, I know the Presiding Officer spoke powerfully to that very legitimate and important concern yesterday.

The current language in the bill--which is why I took to the floor yesterday and I know on other occasions to make this point--I believe will disrupt the investigation, interrogation, and prosecution of terror suspects by forcing the military to interrupt FBI, CIA, or other counterterrorism agency operations--against each of these organizations' recommendations, including the military's.

In sum, we are going to create an unworkable bureaucratic process that would take away the intelligence community's and the counterterrorism community's capabilities to make critical and, in some cases, split-second decisions about how best to save Americans' lives.

Further--I cannot emphasize this enough--although my friends on the other side of this debate argue otherwise, the detainee provisions do allow for the indefinite military detention of American citizens who are accused of planning or participating in terror attacks. Simply accused--that cuts directly against values we hold dear: innocent until proven guilty, presumption of innocence. That is why this is such an important debate.

Let me be clear. There are American citizens who have collaborated with our enemies. There are American citizens who have participated in attacks against our soldiers and civilians. Those Americans are traitors. They should be dealt with, and we already have a system for ensuring they are brought to justice and made to pay a very heavy price for their crimes. That system is working. However, even in the darkest hours, we must ensure that our Constitution prevails. We do ourselves a grave disservice by allowing for any citizen to be locked up indefinitely without trial--no matter how serious the charges may be against them. Doing so may be politically expedient, but we risk losing our principles of justice and liberty that have kept our Republic strong, and it does nothing to make us safer. Our national security leadership has even said if we implement these provisions, it could make us less safe.

If I might reflect a bit on what we have learned. At least in three different wars--three wars we all learn about in our history classes: the Civil War, World War I, and World War II--as we look back at those three wars, we made the decision and we drew the conclusion as Americans that we overreached, that we constricted civil liberties. President Lincoln limited habeas corpus in the Civil War. I know the Presiding Officer is familiar with the Palmer Raids during World War I and the aftermath of World War I. Of course, we know all too well the history of the interment of Japanese Americans.

I am not suggesting these provisions, as they are now included in this bill, would result in historians drawing those similar kinds of conclusions 10 or 20 or 30 years from now. But why not be safe? Why not take the time to ensure that we keep faith with those core values that make America what it is? That is all I am asking. I think that is all Senator Feinstein is asking for us to do. That is what the 38 Senators who joined us yesterday to vote for my commonsense approach were saying as well.

In sum, Senator Feinstein has offered some small changes. It would help alleviate some of the justifiable concerns with these provisions. As I have said, I continue to worry that there will be unintended consequences to enacting the detainee provisions altogether. However, we can make some of these small improvements to avoid harming our counterterrorism activities and preventing the loss of rights and freedoms granted to all Americans by our Constitution.

In closing, I urge all of our colleagues to support Senator Feinstein's amendments.

Would the Senator respond to a question?

As the Senator from Arizona knows, I have the utmost respect for the time the Senator has spent in this very important area. I think what I have been trying to say is that in regard to this particular set of detainee provisions, I want to ensure that all of the questions the FBI Director, General Clapper, Secretary Panetta, and others have raised about how these provisions would actually be applied--I have no question that the intent is spot on--I just am aware that there have been some concerns raised about how these new provisions would actually be applied. I

think Senator Feinstein's amendments--and I do not know where the Senator from Arizona stands at this point--may provide some greater clarification. I know there have been some conversations on the floor as to how we will deal with these amendments. So I appreciate the Senator's comments.

I yield the floor as well and suggest the absence of a quorum.

Mr. President, I rise this morning to speak in

favor of amendment 1107. First, let me say that I know how hard Chairman Levin and Ranking Member McCain have worked to craft a Defense Authorization Act to provide our Armed Forces with the equipment, services, and support they need to keep us safe. I also thank my colleagues from the Armed Services Committee, a number of whom I see on the floor this morning, for their diligence and dedication to this important work.

With that, let me turn to the amendment itself. I want to start by thanking the cosponsors of the amendment. They include the chairwoman of the Intelligence Committee, Senator Feinstein; the chairman of the Judiciary Committee, Senator Leahy; and Senator Webb, a former Secretary of the Navy, someone whom I think we all respect when it comes to national security issues.

I also point out that this amendment is bipartisan. Senator Rand Paul joined as a cosponsor this morning and gave a very compelling floor speech a few minutes ago. Senators Wyden and Durbin have also recently cosponsored it. I recognize their leadership as well.

Let me turn to the amendment itself. A growing number of our colleagues have strong concerns about the detainee provisions in this bill. At the heart of our concern is the concern that we have not taken enough time to listen to our counterterrorism community and have not heeded the warnings of the Secretary of Defense, Director of National Intelligence, and the Director of the FBI, who all oppose these provisions. Equally concerning, we have not had a single hearing on the detainee matters to fully understand the implications of our actions.

My amendment would take out these provisions and give us in the Congress an opportunity to take a hard look at the needs of our counterterrorism professionals and respond in a measured way that reflects the input of those who are actually fighting our enemies. Specifically, the amendment would require that our Defense intelligence and law enforcement agencies report to Congress with recommendations for any additional authorities or flexibility they need in order to detain and prosecute terrorists. My amendment would then ask for hearings to be held so we can fully understand the views of relevant national security experts.

In other words, I am saying let's ask our dedicated men and women who are actually fighting to protect Americans what they actually need to keep us safe. This is a marked departure, in my opinion, from the current language in the bill, which was developed without hearings, and seeks to make changes to the law that our national security professionals do not want and even oppose, as I pointed out.

Like other challenging issues we face here in the Senate, we should identify the problem, hold hearings, gather input from those affected by our actions, and then seek to find the most prudent solution. Instead, we have language in the bill, which, while well intended--of that there is no doubt--was developed behind closed doors and is being moved rather quickly through our Congress. The Secretary of Defense is warning us we may be making mistakes that will hurt our capacity to fight terrorism at home and abroad. The Director of National Intelligence is telling us this language will create more problems than it solves. The Director of the FBI is telling Congress these provisions will erect hurdles that will make it more difficult for our law enforcement officials to collaborate in their effort to protect American citizens. And the President's national security staff is recommending a veto of the entire Defense authorization bill if these provisions remain in the bill.

With this full spectrum of highly respected officials and top counterterrorism professionals warning Congress not to pass these provisions, we are being asked to reject their advice and pass them anyway--again, without any hearings or further deliberation. I don't know what others think, but I don't think this is what the people of Colorado expect us to do, and it is not how I envision the Senate operating.

The provisions would dramatically change broad counterterrorism efforts by requiring law enforcement officials to step aside and ask the Department of Defense to take on a new role they are not fully equipped for and do not want. And by taking away the flexible decisionmaking capacity of our national security team, by forcing the military to now act as police, judge, and jailer, these provisions could effectively rebuild walls between our military law enforcement and intelligence communities that we have spent a decade tearing down.

The provisions that are in the bill--to me and many others--appear to require the DOD to shift significant resources away from their mission to serve on all fronts all over the world. This has real consequences, because we have limited resources and limited manpower. Again, I want to say that I don't think we would lose anything by taking a little more time to discuss and debate these provisions, but we could do real harm to our national security efforts by allowing this language to pass, and that is exactly what our highest ranking national security officers are warning us against doing.

You will note I am speaking in the broadest terms here, but I did want to speak to one particular area of concern, to give viewers and my colleagues a sense of what we face.

The provisions authorize the indefinite military detention of American citizens who are suspected of involvement in terrorism--even those captured here in our own country, in the United States--which I think should concern each and every one of us. These provisions could well represent an unprecedented threat to our constitutional liberties. Let me explain why I think that is the case.

Look, I agree if an American citizen joins al-Qaida and takes up arms against the United States that person should be subject to the same process as any other enemy combatant. But what is not clear is what we do with someone arrested in his home because of suspected terrorist ties. These detainee provisions would authorize that person's indefinite detention, but it misses a critical point. How do we know a citizen has committed these crimes unless they are tried and convicted? Do we want to open the door to domestic military police powers and possibly deny U.S. citizens their due process rights? If we do, I think that is at least something that is worthy of a hearing, and the American people should be made aware of the changes that will be forthcoming in the way we approach civil liberties. But since our counterterrorism officials are telling us these provisions are a mistake, I am not willing to both potentially limit our fight against terrorism and simultaneously threaten the constitutional freedoms Americans hold dear.

As I begin my remarks, I hope I have projected my belief we have a solemn obligation to pass the National Defense Authorization Act, but we also have a solemn obligation to make sure those who are fighting the war on terror have the best, most flexible, most powerful tools possible. To be perfectly frank, I am worried these provisions will disrupt our ability to combat terrorism and inject untested legal ambiguity into our military's operations and detention practices.

We will hear some of our colleagues tell us not to worry because the detainee provisions are designed not to hurt our counterterrorism efforts. We all know the best laid plans can have unintended consequences. While I am sure the drafters of this language intended the provisions to be interpreted in a way that does not cause problems, the counterterrorism community disagrees and has outlined some very serious real world concerns. Stating in the language there will not be any adverse effects on national security doesn't make it so. These are not just words in a proposed law. And those who will be chartered to actually carry out these provisions are urging us to reject them. Shouldn't we listen to their serious concerns? Shouldn't we think twice about passing these provisions?

I have not received a single phone call from a counterterrorism expert, a professional in the field, or a senior military official urging us to pass these provisions. We have heard a wide range of concerns expressed about the unintended consequences of enacting these detainee provisions but not a single voice outside of Congress telling us this will help us protect Americans or make us safer.

In addition to our national security team, which is urging us to oppose these provisions, other important voices are also asking us to stop, to slow down, and to consider them more

thoroughly. The American Bar Association, the ACLU, the International Red Cross, the American Legion, and a number of other groups have also expressed a wide range of serious concerns.

Again, I want to underline, although the language was crafted with the best of intentions, there are simply too many questions about the unintended consequences of these provisions to allow them to move forward without further input from national security experts through holding hearings and engaging in further debate.

I am privileged to be a member of the Armed Services Committee. I am truly honored. As I have implied, and I want to be explicit, I understand the importance of this bill. I understand what it does for our military, which is why, in sum, what I am going to propose with my amendment is that we pass the NDAA without these troubling provisions but with a mechanism by which we can consider in depth what is proposed and, at a later date, include any applicable changes in the law. It is not only the right thing to do policywise, it may very well protect this bill from a veto. The clearest path toward giving our men and women in uniform the tools they need is to pass this amendment and then send a clean National Defense Authorization Act to the President.

In the Statement of Administration Policy, the President says the following--and I should again mention in the Statement of Administration Policy there is a recommendation the President veto the bill.

We have spent 10 years since September 11, 2001, breaking

down the walls between intelligence, military and law

enforcement professionals; Congress should not now rebuild

those walls and unnecessarily make the job of preventing

terrorist attacks more difficult.

These are striking words. They should give us all pause as we face what seems to be a bit of a rush to pass these untested and legally controversial restrictions on our ability to prosecute terrorists.

I want to begin to close, and in so doing I urge my colleagues to think about the precedent we would set by passing these provisions. We are being told these detainee provisions are so important we must pass them right away, without a hearing or further deliberation. However, the Secretary of Defense, at the same time, along with the Director of National Intelligence and the Director of the FBI, are all urging us to reject the provisions and take a closer look. Do we want to neglect the advice of our trusted national security professionals? I can't think of another instance where we would rebuff those who are chartered with keeping us safe.

If we in the Congress want to constrain the military and give our servicemembers new responsibilities, as these provisions would do, I believe we should listen to what the Secretary of Defense has had to say about it. Secretary Panetta is strongly opposed to these changes, and I think we all know before he held the job he has now, Secretary of Defense Panetta was the Director of the CIA. He knows very well the threats facing our country, and he knows we cannot afford to make any mistakes when it comes to keeping our citizens safe. We have to be right every time. The bad guys only have to be right once.

This is a debate we need to have. It is a healthy debate. But we ought to be armed with all the facts and expertise before we move forward. The least we can do is take our time, be diligent, and hear from those who will be affected by these new and significant changes in how we interrogate and prosecute terrorists. As I have said before, it concerns me we would tell our national security leadership--a bipartisan national security leadership, by the way--that we will not listen to them and that Congress knows better than they do. It doesn't strike me that is the best way to secure and protect the American people.

That is why I filed amendment No. 1107. I think my amendment is a commonsense alternative that will protect our constitutional principles and beliefs while continuing to keep our Nation safe. The amendment has a clear aim, which is to ensure we follow a thorough process and hear all views before rushing forward with new laws that could be harmful to our national security. It is straightforward, it is common sense, and I urge my colleagues to support the amendment.

Mr. President, I thank you for your attention, and I yield the floor.

Mr. President, how much time do we have remaining?

Before I recognize Senator Durbin for 8 minutes, I just wish to respond to my friend, the Senator from South Carolina.

The Senator from South Carolina is broadly admired in the Senate. If I am ever in court, I want him to be my lawyer.

I would point out, however, that what I am proposing wouldn't destroy the system we have in place--a system, by the way, that has resulted in the convictions of numerous terrorists with life sentences. What I am asking is to listen to those who are on the frontlines who are fighting against terrorists and terrorism who have said they have concerns about this new proposal and would like a greater amount of time to vet it and consider it.

I yield 8 minutes to the Senator from Illinois.

Mr. President, I want to clarify for the record before I recognize Senator Webb for 5 minutes that some here have claimed that the Supreme Court's Hamdi decision upheld the indefinite detention of U.S. citizens captured in the United States.

It did no such thing. Hamdi was captured in Afghanistan, not the United States. Justice O'Connor, the author of the opinion, was very careful to say that the Hamdi decision was limited to ``individuals who fought against the United States in Afghanistan as part of the Taliban.'' I think that is important to be included in the Record.

I yield to Senator Webb for 5 minutes.

Mr. President, I thank, again, the ranking member and the chairman of the Armed Services Committee for their hard work.

I want to close with a couple points. I want to, in the interest of clarifying the record, point out, on the heels of the chairman's comments about the Statement of Administration Policy, when it comes to section 1031, the full statement reads:

Because the authorities codified in this section already

exist, the Administration does not believe codification is

necessary and poses some risk. After a decade of settled

jurisprudence on detention authority, Congress must be

careful not to open a whole new series of legal questions

that will distract from our efforts to protect the country.

Second, there are questions that continue to be raised. I want to mention section 1033. The chairman said it is only section 1032 that is the focus of our attention, but there have been questions raised about section 1033. There is language in section 1033 that makes it clear that--we think it makes it clear that there is a provision that requires any receiving country is taking actions ``to ensure that the [detainee] cannot engage . . . in any terrorist activity.'' This is if we are releasing or transferring somebody who is detained.

I was in Afghanistan recently, at Bagram prison. We have 20,000 detainees there. There are some who believe section 1033 would restrict us from releasing those prisoners at Bagram as we begin to draw down our efforts in Afghanistan. That is just one of the many questions that are asked.

Finally, I listened to the passion that my friend from South Carolina Senator Graham exhibited on the Senate floor. We are all in this together. We are going to prevail. The bad guys in the world are not going to win. We do have, however--and this is what makes our country strong--different points of view on how we prosecute this war. I believe the intent of what is being suggested in these provisions is well and good and at the highest level. But there are many people we trust and respect--including the FBI Director, the Secretary of Defense, the Secretary of Homeland Security--who believe what will happen, if we interpret the language, will not actually reflect our intent.

Therefore, let's set this aside, pass the NDA, send it to the President, and take the next 90 days to hold hearings and thoroughly vet what is in this set of provisions. I will be the first person to come to the floor if all of those individuals and our own experts tell us this is the right way to proceed, to say: Let's put this into the law.

But let's not rush to take these steps. We have something that is working. We have over 300 terrorists who have been prosecuted through our civil system who are in jail, many of them for life sentences, sentences that will outlast their lifespans. Let's not fix something that is not broken until we really understand what the consequences are.

I thank, again, my colleagues on the Senate Armed Services Committee. This has been a helpful and important debate.

I yield the floor.

Mr. President, this amendment strikes controversial detainee provisions that have been inserted in the National Defense Authorization Act. It would require that the Defense intelligence and law enforcement agencies report to Congress with recommendations for any additional authorities they need in order to detain and prosecute terrorists. The amendment would then ask for hearings to be held so we can fully understand the opposition to these provisions by our national security experts--bipartisan opposition, I might add--and hopefully avoid a veto of the Defense authorization bill.

In short, we are ignoring the advice and the input of the Director of the FBI, the Director of our intelligence community, the Attorney General of the United States, the Secretary of Defense, and the White House, who are all saying there are significant concerns with these provisions; that we ought to move slowly.

We have been successful in prosecuting over 300 terrorists through our civil justice system. Let's not fix what isn't broken until we fully understand the ramifications.

I reserve the remainder of my time.

How much time do I have remaining?

The Director of the FBI, the Secretary of Defense, the Attorney General, and the Director of Intelligence have all said let's go slow.

Pass the Udall amendment.

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

Mr. President, I come to the floor to comment on the NDAA, the bill in front of us today. I want to start my remarks by acknowledging the leadership of Chairman Levin and Ranking Member McCain. Under their tutelage and leadership the committee has worked tirelessly to craft a Defense Authorization Act that provides our Armed Forces with the equipment, the services, the training, and the overall support they need to keep us safe while they themselves are being protected. I thank the chairman and ranking member, my colleagues, and, most important, the wonderful staff that works for us for their diligence and dedication to this important work.

I also come to the floor to speak out against a proposed change that I think would alter what has been a very effective set of terrorist detention policies and procedures. I believe to make those changes would complicate our capacity to prosecute the war on terror and call into question the principles we as Americans hold dear.

I filed an amendment, No. 1107, that would take a look at what is proposed in the NDAA. We have a solemn obligation to pass the National Defense Authorization Act. But we also have a solemn obligation to make sure those who are fighting the war on terror have the best, most flexible, most powerful tools possible. I have to say again, and I will say it more than two times in my remarks, I am worried these changes we are about to push through would actually hurt our national security.

I am a proud member of the Senate Armed Services Committee. As I have implied, and I want to be explicit, I understand the importance of this bill. I understand what it does for our military, which is why, in sum, what I am going to propose with my amendment is that we pass the NDAA without these troubling provisions but with a mechanism by which we can consider what is proposed and perhaps at a later date include any applicable changes in the law.

We need to hear from the Department of Defense, our intelligence community, and the administration more broadly on what our men and women in the field actually need to effectively prosecute the war on terror, especially before we change detainee policies that are already working. As I am saying, I have serious concerns about the detainee provisions that have been included in the bill.

In my opinion, and in the opinion of many others--and I will share those opinions and insights with my colleagues--these provisions disrupt the capacity of the executive branch to enforce the law, and they impose unwise and unwarranted restrictions on our ability to aggressively combat international terrorism. In so doing, they inject legal uncertainty and ambiguity that may only complicate the military's operations and detention practices.

I am not the only one who has serious concerns. The Secretary of Defense has urged us to oppose these new provisions. Both chairmen of the Intelligence and Judiciary Committees strongly oppose them. The President's team is recommending a veto. These are people whose opinions should be carefully considered before we put these new proposals into our legal framework.

In the Statement of Administration Policy the White House states:

We have spent 10 years since September 11, 2001, breaking

down the walls between intelligence, military and law

enforcement professionals; Congress should not now rebuild

those walls and unnecessarily make the job of preventing

terrorist attacks more difficult.

Those are striking words that should give us all pause as we face what seems to me a bit of a rush to submit these untested and legally controversial restrictions on our ability to prosecute terrorists.

I ask unanimous consent to have the entire Statement of Administration Policy printed in the Record at the conclusion of my remarks.

Mr. President, these are complex issues that have far-reaching consequences for intelligence, civilian law enforcement agencies, and our intelligence community as they work to keep Americans safe from harm. Despite this fact, the Department of Defense and the national security staff, as far as I know, had little opportunity to review or comment on the final language in the provisions. As a result, these provisions restrained the ``Executive Branch's options to utilize, in a swift and flexible fashion, all the counterterrorism tools that are now legally available.''

That quote comes directly from a letter addressed to the Armed Services Committee from Secretary Panetta. I think we all know that before he held the job he has now, Secretary of Defense, Mr. Panetta, was the Director of the CIA. He very well knows the threats facing our country, and he knows we cannot afford to make mistakes when it comes to keeping our citizens safe.

I also ask unanimous consent that Secretary Panetta's letter be printed in the Record at the conclusion of my remarks.

Mr. President, the provisions I am speaking to are well intended. I have much admiration for my colleagues who propose them, but I think we need to take some more time to consider the ramifications. The United States, our country, can currently choose from several options when prosecuting terrorists. That flexibility has allowed us to try, convict, and imprison hundreds of terrorists, and it allows the government to select the venue that will provide the highest likelihood of obtaining a conviction. The current detention provisions in the bill we are debating would strip away that flexibility and potentially impair our capacity to successfully prosecute and convict terrorists. It is not clear to me why, after 10 years of successfully prosecuting terrorists and preventing another 9/11-like attack, why we would want to limit our options while our enemies are constantly adapting their tactics and expanding their efforts to do us harm.

In a recent op-ed in the Chicago Times, a bipartisan group of three former Federal judges, including William S. Sessions, who was also the appointed Director of the FBI under President Reagan, said it best when describing these provisions:

Legislation now making its way through Congress would seek

to over-militarize America's counterterrorism efforts,

effectively making the U.S. military the judge, jury and

jailer of terrorism suspects to the exclusion of the FBI and

local and State law enforcement agencies. As former Federal

judges, we find this prospect deeply disturbing. Not only

would such an effort ignore 200 years of legal precedent, it

would fly in the face of common sense.

And I ask unanimous consent that op-ed be printed in the Record at the conclusion of my remarks.

I also point out these provisions raise serious questions as to who we are as a society and what our Constitution seeks to protect. One section of these provisions, section 1031, could be interpreted as allowing the military to capture and indefinitely detain American citizens on U.S. soil. Section 1031 essentially repeals the Posse Comitatus Act of 1878 by authorizing the military to perform law enforcement functions on American soil. That alone should alarm my colleagues on both sides of the aisle. But there are other problems with these provisions that must be resolved.

These detainee provisions are unnecessary, counterproductive, and potentially harmful to our counterterrorism efforts. I know I have said this a couple of times already, but it feels as though they are being rushed through in a manner that does not serve us well. The Department of Defense has had little input. There have been no hearings. Earlier this week the changes were presented to us in the Armed Services Committee just hours before we were asked to vote on them. These are just too important a set of questions to let them pass without a thorough review and far greater understanding of their

effect on our national security and our fight against terrorism. It feels to this Senator that we are rushing hastily to address a solution in search of a problem. We ought to hear from the Department of Defense, the intelligence community, our colleagues, and other relevant committees before we act. Do we believe this Congress--again, let me underline that after 10 years of successfully prosecuting the war on terror--should substitute its views for that of our Defense, intelligence, and Homeland Security leadership without careful analysis?

I recently received a letter signed by 18 retired military leaders in opposition to these provisions. The letter states that: ``Mandating military custody would undermine legitimate law enforcement and intelligence operations crucial to our security at home and abroad.'' I could not agree more.

I would ask unanimous consent that this letter be printed in the Record at the conclusion of my remarks.

We are already trying and convicting terrorists in both civilian courts and under military commissions. The provisions that are in this bill would require the DOD to shift significant resources away from their mission, to act on all the fronts all over the world, and they would become a police force and jailer. This is not what they are good at. This is not what we want them to do. I think it has potentially dangerous consequences because we have limited resources and limited manpower. We would not lose anything by taking a little bit more time to discuss and debate these provisions, but we could do real harm to our national security by allowing this language, unscrutinized, to pass, and that is exactly what our highest ranking national security officers are warning us against doing.

This is a debate we need to have. It is a healthy debate, but we ought to be armed with all of the facts and expertise before we move forward. The least we can do is take our time, be diligent, and hear from those who will be affected by these new limitations on our ability to prosecute terrorists.

It concerns me that we would tell our national security leadership--a bipartisan national security leadership, by the way--that we would not listen to them and that Congress knows better than they do. It doesn't strike me that that is the best way to secure and protect the American people. That is why I have filed amendment No. 1107. I think it is a commonsense alternative that will protect our constitutional principles and beliefs while also allowing us to keep our Nation safe. The amendment has a clear aim, which is to ensure we follow a thorough process and hear all views before rushing forward with new laws that could be harmful to our national security.

What is in the amendment? It is straightforward. Specifically the amendment would require that our Defense, intelligence, and law enforcement agencies report to Congress with recommendations for any additional authorities or flexibility they need in order to detain and prosecute terrorists. In other words, let's not put the cart before the horse or fix something that is not broken. Let's first hear from the stakeholders as to what laws they believe need to be changed to give them better tools to do their job.

My amendment then asks for hearings to be held so we can fully understand the views of respected national security experts. Moreover, it would require input from each of the relevant committees to ensure that we have carefully considered the benefits and consequences of our actions. The chairmen of our Judiciary and Intelligence Committees have deep concerns about the detainee provisions in the pending legislation. And, of course, as we underwent this process, the existing laws that guide our actions today would remain in place. They have been successful.

I see some of my colleagues who I think share my views who have come to the floor. They also made the compelling case that it is a system that is working. Why would we change it without thinking it through? It is straightforward, it is common sense, and it allows us to make sure we will win the war on terror.

Yes.

I thank the Senator from Illinois for his question. My understanding is the Senator from Illinois is correct, that provision 1032 would change the way in which interrogations would unfold. There may be some in the Senate who would see it differently, but that is all the more reason to adopt my amendment, which would allow a thorough process of hearing from the very experts who interrogated the Underwear Bomber and other experts who have been on the front lines in fighting terrorism. We ought to go slow. We should not fix something that is working fine right now.

I thank the Senator for his question.

The Senator from Illinois is correct. Mr. President, 1031 would do just that, and it would come directly at a piece of law, posse comitatus, which dates back to the Civil War, that is held dear by all of us in America because it distinguishes between the military used to protect us

against foreign foes and how we manage our own civil affairs here at home.

Also, as the Senator alludes to, it causes questions to be raised about something that is very sacred in our system of law, which is the writ of habeas corpus. You have to prove why you hold someone. You cannot detain an American citizen indefinitely in any other circumstance.

I thank the Senator for his questions.

I would be happy to yield for a question.

I am familiar with the language in the general way it has been introduced. I would say to the chairman of the Armed Services Committee that we had a chance to review this language starting about 48 hours ago.

One of the reasons I think my amendment is important is it would give those voices, which are being heard more and more as of today, who have concerns with this provision--they are not sure how it applies--that that is all the more reason to slow this down, to keep the existing law in place, and go through a more thorough process to understand the ramifications of the waiver provision and the other provisions the chairman and ranking member----

What I would say to my friend is that just having had an opportunity to review this language in the last 48 hours, I have no question about his intent, but I have heard from people with much greater expertise than I have that there are questions that are still unanswered. Maybe this provision is appropriate and will do what the chairman says it will do. But, again, that is why I think it would be well worth our time to take a further look at what is involved in these provisions.

I am familiar now because the Senator from Michigan has shared that fact with me. I am also familiar with the fact that the administration has other questions and concerns which has caused it to issue a set of provisions and issues they wish to further consider.

I would be happy to yield to my friend from Vermont.

I am. The Senator from Vermont is correct. That knowledge on my part is, in part, one of the reasons I filed the amendment we are discussing right now.

I thank the Senator from Vermont.

I yield the floor.

Exhibit 1

Executive Office of the President, Office of Management

and Budget,

Washington, DC, November 17, 2011.

Statement of Administration Policy

S. 1867--National Defense Authorization Act for FY 2012--(Sen. Levin,