[Congressional Record Volume 157, Number 182 (Wednesday, November 30, 2011)]
[Senate]
[Pages S8012-S8054]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2012

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume consideration of S. 1867, which the clerk will 
report.
  The legislative clerk read as follows:

       A bill (S. 1867) to authorize appropriations for fiscal 
     year 2012 for military activities of the Department of 
     Defense, for military construction, and for defense 
     activities of the Department of Energy, to prescribe military 
     personnel strengths for such fiscal year, and for other 
     purposes.

  Pending:

       Merkley amendment No. 1174, to express the sense of 
     Congress regarding the expedited transition of responsibility 
     for military and security operations in Afghanistan to the 
     Government of Afghanistan.
       Feinstein amendment No. 1125, to clarify the applicability 
     of requirements for military custody with respect to 
     detainees.
       Feinstein amendment No. 1126, to limit the authority of 
     Armed Forces to detain citizens of the United States under 
     section 1031.
       Franken amendment No. 1197, to require contractors to make 
     timely payments to subcontractors that are small business 
     concerns.
       Cardin/Mikulski amendment No. 1073, to prohibit expansion 
     or operation of the District of Columbia National Guard Youth 
     Challenge Program in Anne Arundel County, MD.
       Begich amendment No. 1114, to amend title 10, United States 
     Code, to authorize space-available travel on military 
     aircraft for members of the reserve components, a member or 
     former member of a reserve component who is eligible for 
     retired pay but for age, widows and widowers of retired 
     members, and dependents.
       Begich amendment No. 1149, to authorize a land conveyance 
     and exchange at Joint Base Elmendorf Richardson, Alaska.
       Shaheen amendment No. 1120, to exclude cases in which 
     pregnancy is the result of an act of rape or incest from the 
     prohibition on funding of abortions by the Department of 
     Defense.
       Collins amendment No. 1105, to make permanent the 
     requirement for certifications relating to the transfer of 
     detainees at United States Naval Station, Guantanamo Bay, 
     Cuba, to foreign countries and other foreign entities.
       Collins amendment No. 1155, to authorize educational 
     assistance under the Armed Forces Health Professions 
     Scholarship Program for pursuit of advanced degrees in 
     physical therapy and occupational therapy.
       Collins amendment No. 1158, to clarify the permanence of 
     the prohibition on transfers of recidivist detainees at 
     United States Naval Station, Guantanamo Bay, Cuba, to foreign 
     countries and entities.
       Collins/Shaheen amendment No. 1180, relating to man-
     portable air-defense systems originating from Libya.
       Inhofe amendment No. 1094, to include the Department of 
     Commerce in contract authority using competitive procedures 
     but excluding particular sources for establishing certain 
     research and development capabilities.
       Inhofe amendment No. 1095, to express the sense of the 
     Senate on the importance of addressing deficiencies in mental 
     health counseling.
       Inhofe amendment No. 1096, to express the sense of the 
     Senate on treatment options for members of the Armed Forces 
     and veterans for traumatic brain injury and posttraumatic 
     stress disorder.
       Inhofe amendment No. 1097, to eliminate gaps and 
     redundancies between the over 200

[[Page S8013]]

     programs within the Department of Defense that address 
     psychological health and traumatic brain injury.
       Inhofe amendment No. 1098, to require a report on the 
     impact of foreign boycotts on the defense industrial base.
       Inhofe amendment No. 1099, to express the sense of Congress 
     that the Secretary of Defense should implement the 
     recommendations of the Comptroller General of the United 
     States regarding prevention, abatement, and data collection 
     to address hearing injuries and hearing loss among members of 
     the Armed Forces.
       Inhofe amendment No. 1100, to extend to products and 
     services from Latvia existing temporary authority to procure 
     certain products and services from countries along a major 
     route of supply to Afghanistan.
       Inhofe amendment No. 1101, to strike section 156, relating 
     to a transfer of Air Force C-12 aircraft to the Army.
       Inhofe amendment No. 1102, to require a report on the 
     feasibility of using unmanned aerial systems to perform 
     airborne inspection of navigational aids in foreign airspace.
       Inhofe amendment No. 1093, to require the detention at 
     United States Naval Station, Guantanamo Bay, Cuba, of high-
     value enemy combatants who will be detained long term.
       Casey amendment No. 1215, to require a certification on 
     efforts by the Government of Pakistan to implement a strategy 
     to counter improvised explosive devices.
       Casey amendment No. 1139, to require contractors to notify 
     small business concerns that have been included in offers 
     relating to contracts let by Federal agencies.
       McCain (for Cornyn) amendment No. 1200, to provide Taiwan 
     with critically needed United States-built multirole fighter 
     aircraft to strengthen its self-defense capability against 
     the increasing military threat from China.
       McCain (for Ayotte) amendment No. 1066, to modify the 
     Financial Improvement and Audit Readiness Plan to provide 
     that a complete and validated full statement of budget 
     resources is ready by not later than September 30, 2014.
       McCain (for Ayotte) modified amendment No. 1067, to require 
     notification of Congress with respect to the initial custody 
     and further disposition of members of al-Qaida and affiliated 
     entities.
       McCain (for Ayotte) amendment No. 1068, to authorize lawful 
     interrogation methods in addition to those authorized by the 
     Army Field Manual for the collection of foreign intelligence 
     information through interrogations.
       McCain (for Brown (MA)/Boozman) amendment No. 1119, to 
     protect the child custody rights of members of the Armed 
     Forces deployed in support of a contingency operation.
       McCain (for Brown (MA)) amendment No. 1090, to provide that 
     the basic allowance for housing in effect for a member of the 
     National Guard is not reduced when the member transitions 
     between active-duty and full-time National Guard duty without 
     a break in active service.
       McCain (for Brown (MA)) amendment No. 1089, to require 
     certain disclosures from postsecondary institutions that 
     participate in tuition assistance programs of the Department 
     of Defense.
       McCain (for Wicker) amendment No. 1056, to provide for the 
     freedom of conscience of military chaplains with respect to 
     the performance of marriages.
       McCain (for Wicker) amendment No. 1116, to improve the 
     transition of members of the Armed Forces with experience in 
     the operation of certain motor vehicles into careers 
     operating commercial motor vehicles in the private sector.
       Udall (NM) amendment No. 1153, to include ultralight 
     vehicles in the definition of aircraft for purposes of the 
     aviation smuggling provisions of the Tariff Act of 1930.
       Udall (NM) amendment No. 1154, to direct the Secretary of 
     Veterans Affairs to establish an open burn pit registry to 
     ensure that members of the Armed Forces who may have been 
     exposed to toxic chemicals and fumes caused by open burn pits 
     while deployed to Afghanistan or Iraq receive information 
     regarding such exposure.
       Udall (NM)/Schumer amendment No. 1202, to clarify the 
     application of the provisions of the Buy American Act to the 
     procurement of photovoltaic devices by the Department of 
     Defense.
       McCain (for Corker) amendment No. 1171, to prohibit funding 
     for any unit of a security force of Pakistan if there is 
     credible evidence that the unit maintains connections with an 
     organization known to conduct terrorist activities against 
     the United States or United States allies.
       McCain (for Corker) amendment No. 1172, to require a report 
     outlining a plan to end reimbursements from the Coalition 
     Support Fund to the Government of Pakistan for operations 
     conducted in support of Operation Enduring Freedom.
       McCain (for Corker) amendment No. 1173, to express the 
     sense of the Senate on the North Atlantic Treaty 
     Organization.
       Levin (for Bingaman) amendment No. 1117, to provide for 
     national security benefits for White Sands Missile Range and 
     Fort Bliss.
       Levin (for Gillibrand/Portman) amendment No. 1187, to 
     expedite the hiring authority for the defense information 
     technology/cyber workforce.
       Levin (for Gillibrand/Blunt) amendment No. 1211, to 
     authorize the Secretary of Defense to provide assistance to 
     State National Guards to provide counseling and reintegration 
     services for members of reserve components of the Armed 
     Forces ordered to active duty in support of a contingency 
     operation, members returning from such active duty, veterans 
     of the Armed Forces, and their families.
       Merkley amendment No. 1239, to expand the Marine Gunnery 
     Sergeant John David Fry scholarship to include spouses of 
     members of the Armed Forces who die in the line of duty.
       Merkley amendment No. 1256, to require a plan for the 
     expedited transition of responsibility for military and 
     security operations in Afghanistan to the Government of 
     Afghanistan.
       Merkley amendment No. 1257, to require a plan for the 
     expedited transition of responsibility for military and 
     security operations in Afghanistan to the Government of 
     Afghanistan.
       Merkley amendment No. 1258, to require the timely 
     identification of qualified census tracts for purposes of the 
     HUBZone Program.
       Leahy amendment No. 1087, to improve the provisions 
     relating to the treatment of certain sensitive national 
     security information under the Freedom of Information Act.
       Leahy/Grassley amendment No. 1186, to provide the 
     Department of Justice necessary tools to fight fraud by 
     reforming the working capital fund.
       Wyden/Merkley amendment No. 1160, to provide for the 
     closure of Umatilla Army Chemical Depot, OR.
       Wyden amendment No. 1253, to provide for the retention of 
     members of the reserve components on active duty for a period 
     of 45 days following an extended deployment in contingency 
     operations or homeland defense missions to support their 
     reintegration into civilian life.
       Ayotte (for Graham) amendment No. 1179, to specify the 
     number of judge advocates of the Air Force in the regular 
     grade of brigadier general.
       Ayotte (for McCain) further modified amendment No. 1230, to 
     modify the annual adjustment in enrollment fees for TRICARE 
     Prime.
       Ayotte (for Heller/Kirk) amendment No. 1137, to provide for 
     the recognition of Jerusalem as the capital of Israel and the 
     relocation to Jerusalem of the United States Embassy in 
     Israel.
       Ayotte (for Heller) amendment No. 1138, to provide for the 
     exhumation and transfer of remains of deceased members of the 
     Armed Forces buried in Tripoli, Libya.
       Ayotte (for McCain) amendment No. 1247, to restrict the 
     authority of the Secretary of Defense to develop public 
     infrastructure on Guam until certain conditions related to 
     Guam realignment have been met.
       Ayotte (for McCain) amendment No. 1246, to establish a 
     commission to study the United States Force Posture in East 
     Asia and the Pacific region.
       Ayotte (for McCain) amendment No. 1229, to provide for 
     greater cybersecurity collaboration between the Department of 
     Defense and the Department of Homeland Security.
       Ayotte (for McCain/Ayotte) amendment No. 1249, to limit the 
     use of cost-type contracts by the Department of Defense for 
     major defense acquisition programs.
       Ayotte (for McCain) amendment No. 1220, to require 
     Comptroller General of the United States reports on the 
     Department of Defense implementation of justification and 
     approval requirements for certain sole-source contracts.
       Ayotte (for McCain/Ayotte) amendment No. 1132, to require a 
     plan to ensure audit readiness of statements of budgetary 
     resources.
       Ayotte (for McCain) amendment No. 1248, to expand the 
     authority for the overhaul and repair of vessels to the 
     United States, Guam, and the Commonwealth of the Northern 
     Mariana Islands.
       Ayotte (for McCain) amendment No. 1250, to require the 
     Secretary of Defense to submit a report on the probationary 
     period in the development of the short take-off, vertical 
     landing variant of the Joint Strike Fighter.
       Ayotte (for McCain) amendment No. 1118, to modify the 
     availability of surcharges collected by commissary stores.
       Sessions amendment No. 1182, to prohibit the permanent 
     stationing of more than two Army brigade combat teams within 
     the geographic boundaries of the United States European 
     Command.
       Sessions amendment No. 1183, to require the maintenance of 
     a triad of strategic nuclear delivery systems.
       Sessions amendment No. 1184, to limit any reduction in the 
     number of surface combatants of the Navy below 313 vessels.
       Sessions amendment No. 1185, to require a report on a 
     missile defense site on the east coast of the United States.
       Sessions amendment No. 1274, to clarify the disposition 
     under the law of war of persons detained by the Armed Forces 
     of the United States pursuant to the Authorization for Use of 
     Military Force.
       Levin (for Reed) amendment No. 1146, to provide for the 
     participation of military technicians (dual status) in the 
     study on the termination of military technician as a distinct 
     personnel management category.
       Levin (for Reed) amendment No. 1147, to prohibit the 
     repayment of enlistment or related bonuses by certain 
     individuals who become employed as military technicians (dual 
     status) while already a member of a reserve component.
       Levin (for Reed) amendment No. 1148, to provide rights of 
     grievance, arbitration, appeal, and review beyond the 
     adjutant general for military technicians.

[[Page S8014]]

       Levin (for Reed) amendment No. 1204, to authorize a pilot 
     program on enhancements of Department of Defense efforts on 
     mental health in the National Guard and Reserves through 
     community partnerships.
       Levin (for Reed) amendment No. 1294, to enhance consumer 
     credit protections for members of the Armed Forces and their 
     dependents.
       Levin amendment No. 1293, to authorize the transfer of 
     certain high-speed ferries to the Navy.
       Levin (for Boxer) amendment No. 1206, to implement 
     commonsense controls on the taxpayer-funded salaries of 
     defense contractors.
       Chambliss amendment No. 1304, to require a report on the 
     reorganization of the Air Force Materiel Command.
       Levin (for Brown (OH)) amendment No. 1259, to link domestic 
     manufacturers to defense supply chain opportunities.
       Levin (for Brown (OH)) amendment No. 1261, to extend 
     treatment of base closure areas as HUBZones for purposes of 
     the Small Business Act.
       Levin (for Brown (OH)) amendment No. 1263, to authorize the 
     conveyance of the John Kunkel Army Reserve Center, Warren, 
     OH.
       Levin (for Leahy) amendment No. 1080, to clarify the 
     applicability of requirements for military custody with 
     respect to detainees.
       Levin (for Wyden) amendment No. 1296, to require reports on 
     the use of indemnification agreements in Department of 
     Defense contracts.
       Levin (for Pryor) amendment No. 1151, to authorize a death 
     gratuity and related benefits for Reserves who die during an 
     authorized stay at their residence during or between 
     successive days of inactive duty training.
       Levin (for Pryor) amendment No. 1152, to recognize the 
     service in the reserve components of the Armed Forces of 
     certain persons by honoring them with status as veterans 
     under law.
       Levin (for Nelson (FL)) amendment No. 1209, to repeal the 
     requirement for reduction of survivor annuities under the 
     Survivor Benefit Plan by veterans' dependency and indemnity 
     compensation.
       Levin (for Nelson (FL)) amendment No. 1210, to require an 
     assessment of the advisability of stationing additional DDG-
     51 class destroyers at Naval Station Mayport, FL.
       Levin (for Nelson (FL)) amendment No. 1236, to require a 
     report on the effects of changing flag officer positions 
     within the Air Force Material Command.
       Levin (for Nelson (FL)) amendment No. 1255, to require an 
     epidemiological study on the health of military personnel 
     exposed to burn pit emissions at Joint Base Balad.
       Ayotte (for McCain) modified amendment No. 1281, to require 
     a plan for normalizing defense cooperation with the Republic 
     of Georgia.
       Ayotte (for Blunt/Gillibrand) amendment No. 1133, to 
     provide for employment and reemployment rights for certain 
     individuals ordered to full-time National Guard duty.
       Ayotte (for Blunt) amendment No. 1134, to require a report 
     on the policies and practices of the Navy for naming vessels 
     of the Navy.
       Ayotte (for Murkowski) amendment No. 1286, to require a 
     Department of Defense inspector general report on theft of 
     computer tapes containing protected information on covered 
     beneficiaries under the TRICARE Program.
       Ayotte (for Murkowski) amendment No. 1287, to provide 
     limitations on the retirement of C-23 aircraft.
       Ayotte (for Rubio) amendment No. 1290, to strike the 
     national security waiver authority in section 1032, relating 
     to requirements for military custody.
       Ayotte (for Rubio) amendment No. 1291, to strike the 
     national security waiver authority in section 1033, relating 
     to requirements for certifications relating to transfer of 
     detainees at United States Naval Station, Guantanamo Bay, 
     Cuba, to foreign countries and entities.
       Levin (for Menendez/Kirk) amendment No. 1414, to require 
     the imposition of sanctions with respect to the financial 
     sector of Iran, including the Central Bank of Iran.

  The ACTING PRESIDENT pro tempore. Under the previous order, the time 
until 11 a.m. will be equally divided and controlled between the 
Senator from Michigan, Mr. Levin, and the Senator from Arizona, Mr. 
McCain, or their designees.
  Mr. McCAIN. I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. McCAIN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. McCAIN. Madam President, I would like to say to my colleagues, we 
have been waiting approval of a managers' package of amendments that 
have been cleared by both sides. It is not a managers' package. It is 
simply a group of amendments that have been proposed by Members on both 
sides of the aisle, approved--no one has objected--and yet there are 
objections to moving forward with these amendments in a package. There 
are important amendments by Members on both sides.
  I would urge my colleagues who would object to moving forward with 
this package of amendments which have been agreed to by both sides--and 
there has been no objection voiced to them individually--that I would 
like to move to adopt those shortly before the vote on cloture at 11 
o'clock. If someone objects to that, then I would insist that they come 
over to the floor and object. That is the procedure we will follow that 
I would like to inform my colleagues.
  In other words, we have a group of amendments. They have been cleared 
by both sides; no one objects. And yet there seems to be an objection 
to moving forward with a group of amendments that has already been 
agreed to. So according to parliamentary rules, I will insist that the 
Member be here present to object when I move forward with the package 
shortly before the hour of 11. Anyone watching in the offices, please 
inform your Senator of that decision.
  The ACTING PRESIDENT pro tempore. The Senator from Michigan.
  Mr. LEVIN. Madam President, just to reinforce something the Senator 
from Arizona said, these are amendments there is no objection to on the 
substance. We have worked very hard, working with all the Senators, to 
clear amendments. That process will continue after the cloture vote as 
well. But we now have this group we have worked very hard on. We know 
of no objection. If there were an objection, they would not be in a 
cleared package. So we know of no objection. None have been 
forthcoming. They have been here for a day or two now, and the Senate 
needs to work its will.
  This is the way we should be operating, if there is no objection to 
an amendment, if people have had a chance to look at it. They have been 
cleared on both sides. Any committee on jurisdiction that has an 
interest has been talked to, and that has been taken care of. This is, 
it seems to me, the right way to proceed.
  I commend Senator McCain for what he just said and join with him in 
that sentiment.
  The bill we have before us that we will be voting cloture on at about 
11 o'clock would authorize $662 billion for national defense programs. 
This is $27 billion less than the President's budget request. It is $43 
billion less than the amount appropriated for fiscal year 2011. We have 
been able to find savings without reducing our strong commitment to the 
men and women of our Armed Forces and their families, without 
undermining their ability to accomplish the mission we have assigned to 
them that they handle so remarkably bravely and consistently. So we 
have identified and scrubbed this budget to find those savings, and the 
bill we will be voting cloture on--and, hopefully, adopting cloture--
reflects those savings.
  Because of our action last night on the counterfeit parts amendment, 
the bill now contains important new provisions to help fight the tide 
of counterfeit electronic parts, primarily from China, that is flooding 
the defense supply chain. I went through the provisions last night, and 
I will not repeat them here other than to say we are taking strong 
action to make sure the parts that are provided to our weapons systems 
are new parts as required and are not counterfeit parts.
  There are a number of steps in this bill. They are effective and 
strong steps. We require, for instance, that parts that are being 
supplied come from the original manufacturer of those parts or an 
authorized distributor of those parts or, if that is not possible 
because the parts are no longer being manufactured or there is no 
authorized distributor, that whoever is supplying those parts be 
certified by the Department of Defense, the way they currently are, by 
one part of the Department of Defense, the Missile Defense Agency, as 
being a reliable supplier.
  We have had too many cases of missiles and airplanes that have 
defective parts, and the lives of our people in uniform depend upon 
these as being quality parts. We are not going to accept the status quo 
anymore in terms of counterfeiting, mainly from China, and we are 
taking this strong action in

[[Page S8015]]

this bill now, following last night's action, to make sure this status 
quo is reversed.
  We have over 96,000 U.S. soldiers, sailors, airmen, and marines on 
the ground in Afghanistan. We have 13,000, as we speak, remaining in 
Iraq. There are many issues upon which we disagree. But every one of us 
knows we must provide our troops with the support they need and deserve 
as long as they are in harm's way. Senate action on the Defense bill 
will improve the quality of life for our men and women in uniform. It 
will give them the tools they need to remain the most effective 
fighting force in the world, and it will also send a critically 
important message that we as a nation stand behind our troops and their 
families and we appreciate their service.
  So I hope we can adopt the cloture motion which is before us so we 
can proceed to the postcloture period, where we can then resolve the 
remaining amendments that can be resolved, and then pass this bill, 
hopefully, tomorrow. But we have a lot of work to do today and 
tomorrow. We have many dozens of amendments yet to be voted on, 
disposed of, and hopefully cleared in many cases.
  With that, I yield the floor.
  I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LEVIN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. LEVIN. Madam President, the following amendments have been 
cleared by myself and the ranking member. We have cleared a number of 
amendments on both sides. We are working with many Members. There will 
be an additional package after this one. We are going to continue to 
try to clear amendments. We expect that we will. We know of no 
objection to any of the following amendments despite their being 
available for review.
  They are amendments numbered: 1056 on behalf of Senator Wicker, 1066 
on behalf of Senator Ayotte, 1102 on behalf of Senator Inhofe, 1116 on 
behalf of Senator Wicker, 1122 on behalf of Senator Shaheen, 1129 on 
behalf of Senator Reid, 1130 on behalf of Senator Reid, 1132 on behalf 
of Senator McCain, 1134 on behalf of Senator Blunt, 1143 on behalf of 
Senators Hagan and Portman, 1149, as modified by changes at the desk, 
on behalf of Senator Begich, 1162 on behalf of Senator Warner, 1164 on 
behalf of Senator Warner, 1165 on behalf of Senator Warner, 1166, on 
behalf of Senator Warner, 1167, as modified by changes at the desk, on 
behalf of Senator Warner, 1178, as modified by changes at the desk, on 
behalf of Senator Murray, 1180, as modified by changes at the desk, on 
behalf of Senator Collins, 1183, as modified by changes at the desk, on 
behalf of Senator Sessions, 1207 on behalf of Senator Coburn, 1210 on 
behalf of Senator Nelson (FL), 1227 on behalf of Senators McCain and 
Portman, 1215, as modified by changes at the desk, on behalf of Senator 
Casey, 1228 on behalf of Senators McCain and Portman, 1237 on behalf of 
Senator Shaheen, 1240 on behalf of Senator Warner, 1245 on behalf of 
Senator McCain, 1250 on behalf of Senator McCain, 1266 on behalf of 
Senator Warner, 1276 on behalf of Senator Baucus, 1280 on behalf of 
Senator McCain, 1281, as modified, on behalf of Senator McCain, 1298 on 
behalf of Senators Webb and Graham, 1301 on behalf of Senator Levin, 
1303 on behalf of Senators Levin and McCain, 1315 on behalf of Senator 
Hatch, 1317 on behalf of Senator Portman, 1324 on behalf of Senator 
Cochran, 1326 on behalf of Senator Risch, and 1332 on behalf of 
Senators Lieberman and Cornyn.

  The ACTING PRESIDENT pro tempore. The Senator from Arizona.
  Mr. McCAIN. They have been cleared on this side.
  Mr. LEVIN. Madam President, I ask unanimous consent that the Senate 
consider these amendments en bloc, that the modifications at the desk 
be adopted, the amendments be agreed to, and the motion to reconsider 
be laid upon the table.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendments (Nos. 1056, 1066, 1102, 1116, 1132, 1134, 1210, and 
1250) were agreed to.
  The amendments (Nos. 1180, 1183, 1215, and 1281), as modified, were 
agreed to, as follows:


                    amendment no. 1180, as modified

       At the end of subtitle C of title XII, add the following:

     SEC. 1243. MAN-PORTABLE AIR-DEFENSE SYSTEMS ORIGINATING FROM 
                   LIBYA.

       (a) Statement of Policy.--Pursuant to section 11 of the 
     Department of State Authorities Act of 2006 (22 U.S.C. 
     2349bb-6), the following is the policy of the United States:
       (1) To reduce and mitigate, to the greatest extent 
     feasible, the threat posed to United States citizens and 
     citizens of allies of the United States by man-portable air-
     defense systems (MANPADS) that were in Libya as of March 19, 
     2011.
       (2) To seek the cooperation of, and to assist, the 
     Government of Libya and governments of neighboring countries 
     and other countries (as determined by the President) to 
     secure, remove, or eliminate stocks of man-portable air-
     defense systems described in paragraph (1) that pose a threat 
     to United States citizens and citizens of allies of the 
     United States.
       (3) To pursue, as a matter of priority, an agreement with 
     the Government of Libya and governments of neighboring 
     countries and other countries (as determined by the Secretary 
     of State) to formalize cooperation with the United States to 
     limit the availability, transfer, and proliferation of man-
     portable air-defense systems described in paragraph (1).
       (b) Intelligence Community Assessment on MANPADS in 
     Libya.--
       (1) In general.--The Director of National Intelligence 
     shall submit to the appropriate committees of Congress an 
     assessment by the intelligence community that accounts for 
     the disposition of, and the threat to United States citizens 
     and citizens of allies of the United States posed by man-
     portable air-defense systems that were in Libya as of March 
     19, 2011. The assessment shall be submitted as soon as 
     practicable, but not later than the end of the 45-day period 
     beginning on the date of the enactment of this Act.
       (2) Elements.--The assessment submitted under this 
     subsection shall include the following:
       (A) An estimate of the number of man-portable air-defense 
     systems that were in Libya as of March 19, 2011.
       (B) An estimate of the number of man-portable air-defense 
     systems in Libya as of March 19, 2011, that are currently in 
     the secure custody of the Government of Libya, the United 
     States, an ally of the United States, a member of the North 
     Atlantic Treaty Organization (NATO), or the United Nations.
       (C) An estimate of the number of man-portable air-defense 
     systems in Libya as of March 19, 2011, that were destroyed, 
     disabled, or otherwise rendered unusable during Operation 
     Unified Protector and since the end of Operation Unified 
     Protector.
       (D) An assessment of the number of man-portable air-defense 
     systems that is the difference between the number of man-
     portable air-defense systems in Libya as of March 19, 2011, 
     and the cumulative number of man-portable air-defense systems 
     accounted for under subparagraphs (B) and (C), and the 
     current disposition and locations of such man-portable air-
     defense systems.
       (E) An assessment of the number of man-portable air-defense 
     systems that are currently in the custody of militias in 
     Libya.
       (F) A list of any organizations designated as terrorist 
     organizations by the Department of State, or affiliate 
     organizations or members of such organizations, that are 
     known or believed to have custody of any man-portable air-
     defense systems that were in the custody of the Government of 
     Libya as of March 19, 2011.
       (G) An assessment of the threat posed to United States 
     citizens and citizens of allies of the United States from 
     unsecured man-portable air-defense systems (as defined in 
     section 11 of the Department of State Authorities Act of 
     2006) originating from Libya.
       (H) An assessment of the effect of the proliferation of 
     man-portable air-defense systems that were in Libya as of 
     March 19, 2011, on the price and availability of man-portable 
     air-defense systems that are on the global arms market.
       (3) Notice regarding delay in submittal.--If, before the 
     end of the 45-day period specified in paragraph (1), the 
     Director determines that the assessment required by that 
     paragraph cannot be submitted by the end of that period as 
     required by that paragraph, the Director shall (before the 
     end of that period) submit to the appropriate committees of 
     Congress a report setting forth--
       (A) the reasons why the assessment cannot be submitted by 
     the end of that period; and
       (B) an estimated date for the submittal of the assessment.
       (c) Comprehensive Strategy on Threat of MANPADS Originating 
     From Libya.--
       (1) Strategy required.--The President shall develop and 
     implement, and from time to time update, a comprehensive 
     strategy, pursuant to section 11 of the Department of State 
     Authorities Act of 2006, to reduce and mitigate the threat 
     posed to United States citizens and citizens of allies of the 
     United States from man-portable air-defense systems that were 
     in Libya as of March 19, 2011.
       (2) Report required.--
       (A) In general.--Not later than 45 days after the 
     assessment required by subsection

[[Page S8016]]

     (b) is submitted to the appropriate committees of Congress, 
     the President shall submit to the appropriate committees of 
     Congress a report setting forth the strategy required by 
     paragraph (1).
       (B) Elements.--The report required by this paragraph shall 
     include the following:
       (i) An assessment of the effectiveness of efforts 
     undertaken to date by the United States, Libya, Mauritania, 
     Egypt, Algeria, Tunisia, Mali, Morocco, Niger, Chad, the 
     United Nations, the North Atlantic Treaty Organization, and 
     any other country or entity (as determined by the President) 
     to reduce the threat posed to United States citizens and 
     citizens of allies of the United States from man-portable 
     air-defense systems that were in Libya as of March 19, 2011.
       (ii) A timeline for future efforts by the United States, 
     Libya, and neighboring countries to--

       (I) secure, remove, or disable any man-portable air-defense 
     systems that remain in Libya;
       (II) counter proliferation of man-portable air-defense 
     systems originating from Libya that are in the region; and
       (III) disrupt the ability of terrorists, non-state actors, 
     and state sponsors of terrorism to acquire such man-portable 
     air-defense systems.

       (iii) A description of any additional funding required to 
     address the threat of man-portable air-defense systems 
     originating from Libya.
       (iv) A description of technologies currently available to 
     reduce the susceptibility and vulnerability of civilian 
     aircraft to man-portable air-defense systems, including an 
     assessment of the feasibility of using aircraft-based anti-
     missile systems to protect United States passenger jets.
       (v) Recommendations for the most effective policy measures 
     that can be taken to reduce and mitigate the threat posed to 
     United States citizens and citizens of allies of the United 
     States from man-portable air-defense systems that were in 
     Libya as of March 19, 2011.
       (vi) Such recommendations for legislative or administrative 
     action as the President considers appropriate to implement 
     the strategy required by paragraph (1).
       (C) Form.--The report required by this paragraph shall be 
     submitted in unclassified form, but may include a classified 
     annex.
       (d) Appropriate Committees of Congress Defined.--In this 
     section, the term ``appropriate committees of Congress'' 
     means--
       (1) the Committee on Armed Services, the Committee on 
     Foreign Relations, and the Select Committee on Intelligence 
     of the Senate; and
       (2) the Committee on Armed Services, the Committee on 
     Foreign Affairs, and the Permanent Select Committee on 
     Intelligence of the House of Representatives.


                    amendment no. 1183, as modified

       At the end of subtitle G of title X, add the following:

     SEC. 1080. REPORTS TO CONGRESS ON THE MODIFICATION OF THE 
                   FORCE STRUCTURE FOR THE STRATEGIC NUCLEAR 
                   WEAPONS DELIVERY SYSTEMS OF THE UNITED STATES.

       (a) Findings.--Congress makes the following findings:
       (1) Since the early 1960s, the United States has developed 
     and maintained a triad of strategic nuclear weapons delivery 
     systems.
       (2) The triad includes sea-based, land-based, and air-based 
     strategic nuclear weapons delivery systems.
       (b) Report on Modification.--Whenever after the date of the 
     enactment of this Act the President proposes a modification 
     of the force structure for the strategic nuclear weapons 
     delivery systems of the United States, the President shall 
     submit to Congress a report on the modification. The report 
     shall include a description of the manner in which such 
     modification will maintain for the United States a range of 
     strategic nuclear weapons delivery systems appropriate for 
     the current and anticipated threats faced by the United 
     States when compared with the current force structure of 
     strategic nuclear weapons delivery systems.


                    amendment no. 1215, as modified

       At the end of subtitle B of title XII, add the following:

     SEC. 1230. CERTIFICATION REQUIREMENT REGARDING EFFORTS BY 
                   GOVERNMENT OF PAKISTAN TO IMPLEMENT A STRATEGY 
                   TO COUNTER IMPROVISED EXPLOSIVE DEVICES.

       (a) Certification Requirement.--
       (1) In general.--None of the amounts authorized to be 
     appropriated under this Act for the Pakistan 
     Counterinsurgency Fund or transferred to the Pakistan 
     Counterinsurgency Fund from the Pakistan Counterinsurgency 
     Capability Fund should be made available for the Government 
     of Pakistan until the Secretary of Defense, in consultation 
     with the Secretary of State, certifies to the congressional 
     defense committees and the Committee on Foreign Relations of 
     the Senate and the Committee on Foreign Affairs of the House 
     of Representatives that the Government of Pakistan is 
     demonstrating a continuing commitment to and is making 
     significant efforts towards the implementation of a strategy 
     to counter improvised explosive devices (IEDs).
       (2) Significant implementation efforts.--For purposes of 
     this subsection, significant implementation efforts include 
     attacking IED networks, monitoring of known precursors used 
     in IEDs, and the development of a strict protocol for the 
     manufacture of explosive materials, including calcium 
     ammonium nitrate, and accessories and their supply to 
     legitimate end users.
       (b) Waiver.--The Secretary of Defense, in consultation with 
     the Secretary of State, may waive the requirements of 
     subsection (a) if the Secretary determines it is in the 
     national security interest of the United States to do so.


                           amendment no. 1281

 (Purpose: To require a plan for normalizing defense cooperation with 
                        the Republic of Georgia)

       At the end of subtitle C of title XII, add the following:

     SEC. 1243. DEFENSE COOPERATION WITH REPUBLIC OF GEORGIA.

       (a) Plan for Normalization.--Not later than 90 days after 
     the date of the enactment of this Act, the President shall 
     develop and submit to the congressional defense committees 
     and the Committee on Foreign Relations of the Senate and the 
     Committee on Foreign Affairs of the House of Representatives 
     a plan for the normalization of United States defense 
     cooperation with the Republic of Georgia, including the sale 
     of defensive arms.
       (b) Objectives.--The plan required under subsection (a) 
     shall address the following objectives:
       (1) To establish a normalized defense cooperation 
     relationship between the United States and the Republic of 
     Georgia, taking into consideration the progress of the 
     Government of the Republic of Georgia on democratic and 
     economic reforms and the capacity of the Georgian armed 
     forces.
       (2) To support the Government of the Republic of Georgia in 
     providing for the defense of its government, people, and 
     sovereign territory, consistent with the continuing 
     commitment of the Government of the Republic of Georgia to 
     its nonuse-of-force pledge and consistent with Article 51 of 
     the Charter of the United Nations.
       (3) To provide for the sale by the United States of defense 
     articles and services in support of the efforts of the 
     Government of the Republic of Georgia to provide for its own 
     self-defense consistent with paragraphs (1) and (2).
       (4) To continue to enhance the ability of the Government of 
     the Republic of Georgia to participate in coalition 
     operations and meet NATO partnership goals.
       (5) To encourage NATO member and candidate countries to 
     restore and enhance their sales of defensive articles and 
     services to the Republic of Georgia as part of a broader NATO 
     effort to deepen its defense relationship and cooperation 
     with the Republic of Georgia.
       (6) To ensure maximum transparency in the United States-
     Georgia defense relationship.
       (c) Included Information.--The plan required under 
     subsection (a) shall include the following information:
       (1) A needs-based assessment, or an update to an existing 
     needs-based assessment, of the defense requirements of the 
     Republic of Georgia, which shall be prepared by the 
     Department of Defense.
       (2) A description of each of the requests by the Government 
     of the Republic of Georgia for purchase of defense articles 
     and services during the two-year period ending on the date of 
     the report.
       (3) A summary of the defense needs asserted by the 
     Government of the Republic of Georgia as justification for 
     its requests for defensive arms purchases.
       (4) A description of the action taken on any defensive arms 
     sale request by the Government of the Republic of Georgia and 
     an explanation for such action.
       (d) Form.--The plan required under subsection (a) shall be 
     submitted in unclassified form, but may contain a classified 
     annex.

  The amendments (Nos. 1122, 1129, 1130, 1143; 1149, as modified; 1162, 
1164, 1165, 1166; 1167, as modified; 1178, as modified, 1207, 1227, 
1228, 1237, 1240, 1245, 1266, 1276, 1280, 1298, 1301, 1303, 1315, 1317, 
1324, 1326, and 1332) were agreed to, as follows:


                           amendment no. 1122

(Purpose: To authorize the acquisition of real property and associated 
 real property interests in the vicinity of Hanover, New Hampshire, as 
    may be needed for the Engineer Research and Development Center 
  laboratory facilities at the Cold Regions Research and Engineering 
                              Laboratory)

       At the end of subtitle E of title II, add the following:

     SEC. 2__. LABORATORY FACILITIES, HANOVER, NEW HAMPSHIRE.

       (a) Acquisition.--
       (1) In general.--Subject to paragraph (3), the Secretary of 
     the Army (referred to in this section as the ``Secretary'') 
     may acquire any real property and associated real property 
     interests in the vicinity of Hanover, New Hampshire, 
     described in paragraph (2) as may be needed for the Engineer 
     Research and Development Center laboratory facilities at the 
     Cold Regions Research and Engineering Laboratory.
       (2) Description of real property.--The real property 
     described in this paragraph is the real property to be 
     acquired under paragraph (1)--
       (A) consisting of approximately 18.5 acres, identified as 
     Tracts 101-1 and 101-2, together with all necessary easements 
     located entirely within the Town of Hanover, New Hampshire; 
     and

[[Page S8017]]

       (B) generally bounded--
       (i) to the east by state route 10-Lyme Road;
       (ii) to the north by the vacant property of the Trustees of 
     Dartmouth College;
       (iii) to the south by Fletcher Circle graduate student 
     housing owned by the Trustees of Dartmouth College; and
       (iv) to the west by approximately 9 acres of real property 
     acquired in fee through condemnation in 1981 by the 
     Secretary.
       (3) Amount paid for property.--The Secretary shall pay not 
     more than fair market value for any real property and 
     associated real property interest acquired under this 
     subsection.
       (b) Revolving Fund.--The Secretary--
       (1) through the Plant Replacement and Improvement Program 
     of the Secretary, may use amounts in the revolving fund 
     established by section 101 of the Civil Functions 
     Appropriations Act, 1954 (33 U.S.C. 576) to acquire the real 
     property and associated real property interests described in 
     subsection (a); and
       (2) shall ensure that the revolving fund is appropriately 
     reimbursed from the benefitting appropriations.
       (c) Right of First Refusal.--
       (1) In general.--The Secretary may provide the seller of 
     any real property and associated property interests 
     identified in subsection (a) a right of first refusal--
       (A) a right of first refusal to acquire the property, or 
     any portion of the property, in the event the property or 
     portion is no longer needed by the Department of the Army; 
     and
       (B) a right of first refusal to acquire any real property 
     or associated real property interests acquired by 
     condemnation in Civil Action No. 81-360-L, in the event the 
     property, or any portion of the property, is no longer needed 
     by the Department of the Army.
       (2) Nature of right.--A right of first refusal provided to 
     a seller under this subsection shall not inure to the benefit 
     of any successor or assign of the seller.
       (d) Consideration; Fair Market Value.--The purchase of any 
     property by a seller exercising a right of first refusal 
     provided under subsection (c) shall be for--
       (1) consideration acceptable to the Secretary; and
       (2) not less than fair market value at the time at which 
     the property becomes available for purchase.
       (e) Disposal.--The Secretary may dispose of any property or 
     associated real property interests that are subject to the 
     exercise of the right of first refusal under this section.
       (f) No Effect on Compliance With Environmental Laws.--
     Nothing in this section affects or limits the application of 
     or obligation to comply with any environmental law, including 
     section 120(h) of the Comprehensive Environmental Response, 
     Compensation, and Liability Act of 1980 (42 U.S.C. 9620(h)).


                           amendment no. 1129

   (Purpose: To redesignate the Mike O'Callaghan Federal Hospital in 
         Nevada as the Mike O'Callaghan Federal Medical Center)

       At the end of subtitle D of title XXVIII, add the 
     following:

     SEC. 2833. REDESIGNATION OF MIKE O'CALLAGHAN FEDERAL HOSPITAL 
                   IN NEVADA AS MIKE O'CALLAGHAN FEDERAL MEDICAL 
                   CENTER.

       (a) Redesignation.--Section 2867 of the Military 
     Construction Authorization Act for Fiscal Year 1997 (division 
     B of Public Law 104-201; 110 Stat. 2806), as amended by 
     section 8135(a) of the Department of Defense Appropriations 
     Act, 1997 (section 101(b) of division A of the Omnibus 
     Consolidated Appropriations Act, 1997 (Public Law 104-208; 
     110 Stat. 3009-118)), is further amended by striking ``Mike 
     O'Callaghan Federal Hospital'' each place it appears and 
     inserting ``Mike O'Callaghan Federal Medical Center''.
       (b) Conforming Amendment.--The heading of such section 2867 
     is amended to read as follows:

     ``SEC. 2867. MIKE O'CALLAGHAN FEDERAL MEDICAL CENTER.''.


                           amendment no. 1130

 (Purpose: To clarify certain provisions of the Clean Air Act relating 
                      to fire suppression agents)

       At the end of subtitle H of title X, add the following:

     SEC. 1088. FIRE SUPPRESSION AGENTS.

       Section 605(a) of the Clean Air Act (42 U.S.C. 7671d(a)) is 
     amended--
       (1) in paragraph (2), by striking ``or'' at the end;
       (2) in paragraph (3), by striking the period at the end and 
     inserting ``; or''; and
       (3) by adding at the end the following:
       ``(4) is listed as acceptable for use as a fire suppression 
     agent for nonresidential applications in accordance with 
     section 612(c).''.


                           amendment no. 1143

(Purpose: To require the Comptroller General to review medical research 
  and development sponsored by the Department of Defense relating to 
   improved combat casualty care and saving lives on the battlefield)

       At the end of subtitle G of title X, add the following:

     SEC. 1080. COMPTROLLER GENERAL REVIEW OF MEDICAL RESEARCH AND 
                   DEVELOPMENT RELATING TO IMPROVED COMBAT 
                   CASUALTY CARE.

       (a) Study Required.--The Comptroller General of the United 
     States shall conduct a review of Department of Defense 
     programs and organizations related to, and resourcing of, 
     medical research and development in support of improved 
     combat casualty care designed to save lives on the 
     battlefield.
       (b) Report.--Not later than January 1, 2013, the 
     Comptroller General shall submit to the congressional defense 
     committees a report on the review conducted under subsection 
     (a), including the following elements:
       (1) A description of current medical combat casualty care 
     research and development programs throughout the Department 
     of Defense, including basic and applied medical research, 
     technology development, and clinical research.
       (2) An identification of organizational elements within the 
     Department that have responsibility for planning and 
     oversight of combat casualty care research and development.
       (3) A description of the means by which the Department 
     applies combat casualty care research findings, including 
     development of new medical devices, to improve battlefield 
     care.
       (4) An assessment of the adequacy of the coordination by 
     the Department of planning for combat casualty care medical 
     research and development and whether or not the Department 
     has a coordinated combat casualty care research and 
     development strategy.
       (5) An assessment of the adequacy of resources provided for 
     combat casualty care research and development across the 
     Department.
       (6) An assessment of the programmatic, organizational, and 
     resource challenges and gaps faced by the Department in 
     optimizing investments in combat casualty care medical 
     research and development in order to save lives on the 
     battlefield.
       (7) The extent to which the Department utilizes expertise 
     from experts and entities outside the Department with 
     expertise in combat casualty care medical research and 
     development.
       (8) An assessment of the challenges faced in rapidly 
     applying research findings and technology developments to 
     improved battlefield care.
       (9) Recommendations regarding--
       (A) the need for a coordinated combat casualty care medical 
     research and development strategy;
       (B) organizational obstacles or realignments to improve 
     effectiveness of combat casualty care medical research and 
     development; and
       (C) adequacy of resource support.


                    amendment no. 1149, as modified

       At the end of subtitle C of title XXVIII, add the 
     following:

     SEC. 2823. LAND CONVEYANCE AND EXCHANGE, JOINT BASE ELMENDORF 
                   RICHARDSON, ALASKA.

       (a) Conveyances Authorized.--
       (1) Municipality of anchorage.--The Secretary of the Air 
     Force may, in consultation with the Secretary of the 
     Interior, convey to the Municipality of Anchorage (in this 
     section referred to as the ``Municipality'') all right, 
     title, and interest of the United States in and to all or any 
     part of a parcel of real property, including any improvements 
     thereon, consisting of approximately 220 acres at JBER 
     situated to the west of and adjacent to the Anchorage 
     Regional Landfill in Anchorage, Alaska, for solid waste 
     management purposes, including reclamation thereof, and for 
     alternative energy production, and other related activities. 
     This authority may not be exercised unless and until the 
     March 15, 1982, North Anchorage Land Agreement is amended by 
     the parties thereto to specifically permit the conveyance 
     under this subparagraph.
       (2) Eklutna, inc..--The Secretary of the Air Force may, in 
     consultation with the Secretary of the Interior, upon terms 
     mutually agreeable to the Secretary of the Air Force and 
     Eklutna, Inc., an Alaska Native village corporation organized 
     pursuant to the Alaska Native Claims Settlement Act (43 
     U.S.C. 1601 et seq.) (in this section referred to as 
     ``Eklutna''), convey to Eklutna all right, title, and 
     interest of the United States in and to all or any part of a 
     parcel of real property, including any improvements thereon, 
     consisting of approximately 130 acres situated on the 
     northeast corner of the Glenn Highway and Boniface Parkway in 
     Anchorage, Alaska, or such other property as may be 
     identified in consultation with the Secretary of the 
     Interior, for any use compatible with JBER's current and 
     reasonably foreseeable mission as determined by the Secretary 
     of the Air Force.
       (3) Right to withhold transfer.--The Secretary may withhold 
     transfer of any portion of the real property described in 
     paragraphs (1) and (2) based on public interest or military 
     mission requirements.
       (b) Consideration.--
       (1) Municipality property.--As consideration for the 
     conveyance under subsection (a)(1), the Secretary of the Air 
     Force shall receive in-kind solid waste management services 
     at the Anchorage Regional Landfill or such other 
     consideration as determined satisfactory by the Secretary 
     equal to at least fair market value of the property conveyed.
       (2) Eklutna property.--As consideration for the conveyance 
     under subsection (a)(2), the Secretary of the Air Force is 
     authorized to receive, upon terms mutually agreeable to the 
     Secretary and Eklutna, such interests in the surface estate 
     of real property owned by Eklutna and situated at the 
     northeast boundary of JBER and other consideration as 
     considered satisfactory by the Secretary

[[Page S8018]]

     equal to at least fair market value of the property conveyed.
       (c) Payment of Costs of Conveyance.--
       (1) Payment required.--The Secretary of the Air Force shall 
     require the Municipality and Eklutna to reimburse the 
     Secretary to cover costs (except costs for environmental 
     remediation of the property) to be incurred by the Secretary, 
     or to reimburse the Secretary for costs incurred by the 
     Secretary, to carry out the conveyances under subsection (a), 
     including survey costs, costs for environmental 
     documentation, and any other administrative costs related to 
     the conveyance.
       (2) Treatment of amounts received.--Amounts received as 
     reimbursement under paragraph (1) shall be credited to the 
     fund or account that was used to cover those costs incurred 
     by the Secretary in carrying out the conveyance. Amounts so 
     credited shall be merged with amounts in such fund or 
     account, and shall be available for the same purposes, and 
     subject to the same conditions and limitations, as amounts in 
     such fund or account.
       (d) Treatment of Cash Consideration Received.--Any cash 
     payment received by the United States as consideration for 
     the conveyances under subsection (a) shall be deposited in 
     the special account in the Treasury established under 
     subsection (b) of section 572 of title 40, United States 
     Code, and shall be available in accordance with paragraph 
     (5)(B) of such subsection.
       (e) Description of Property.--The exact acreage and legal 
     description of the real property to be conveyed under 
     subsection (a) shall be determined by surveys satisfactory to 
     the Secretary.
       (f) Other or Additional Terms and Conditions.--The 
     Secretary may require such additional terms and conditions in 
     connection with the conveyances under subsection (a) as the 
     Secretary considers appropriate to protect the interests of 
     the United States.


                           AMENDMENT NO. 1162

   (Purpose: To provide for the consideration of energy security and 
reliability in the development and implementation of energy performance 
                                 goals)

       At the end of subtitle B of title III, add the following:

     SEC. 316. CONSIDERATION OF ENERGY SECURITY AND RELIABILITY IN 
                   DEVELOPMENT AND IMPLEMENTATION OF ENERGY 
                   PERFORMANCE GOALS.

       Section 2911(c) of title 10, United States Code, is amended 
     by adding at the end the following new paragraph:
       ``(12) Opportunities to enhance energy security and 
     reliability of defense facilities and missions, including 
     through the ability to operate for extended periods off-
     grid.''.


                           AMENDMENT NO. 1164

 (Purpose: To promote increased acquisition and procurement exchanges 
between officials in the Department of Defense and defense officials in 
                                 India)

       At the end of subtitle H of title X, add the following:

     SEC. 1088. ACQUISITION AND PROCUREMENT EXCHANGES BETWEEN THE 
                   UNITED STATES AND INDIA.

       The Secretary of Defense should seek to establish exchanges 
     between acquisition and procurement officials of the 
     Department of Defense and defense officials of the Government 
     of India to increase mutual understanding regarding best 
     practices in defense acquisition.


                           AMENDMENT NO. 1165

 (Purpose: To express the sense of Congress on the use of modeling and 
            simulation in Department of Defense activities)

       At the end of subtitle A of title IX, add the following:

     SEC. 907. SENSE OF CONGRESS ON USE OF MODELING AND SIMULATION 
                   IN DEPARTMENT OF DEFENSE ACTIVITIES.

       It is the sense of Congress to encourage the Department of 
     Defense to continue the use and enhancement of modeling and 
     simulation (M&S) across the spectrum of defense activities, 
     including acquisition, analysis, experimentation, 
     intelligence, planning, medical, test and evaluation, and 
     training.


                           AMENDMENT NO. 1166

 (Purpose: To express the sense of Congress on ties between the Joint 
Warfighting and Coalition Center and the Allied Command Transformation 
                                of NATO)

       At the end of subtitle A of title IX, add the following:

     SEC. 907. SENSE OF CONGRESS ON TIES BETWEEN JOINT WARFIGHTING 
                   AND COALITION CENTER AND ALLIED COMMAND 
                   TRANSFORMATION OF NATO.

       It is the sense of Congress that the successor organization 
     to the United States Joint Forces Command (USJFCOM), the 
     Joint Warfighting and Coalition Center, should establish 
     close ties with the Allied Command Transformation (ACT) 
     command of the North Atlantic Treaty Organization (NATO).


                    AMENDMENT NO. 1167, as Modified

       At the end of subtitle A of title IX, add the following:

     SEC. 907. REPORT ON EFFECTS OF PLANNED REDUCTIONS OF 
                   PERSONNEL AT THE JOINT WARFARE ANALYSIS CENTER 
                   ON PERSONNEL SKILLS.

       Not later than 120 days after the date of the enactment of 
     this Act, the Secretary of Defense shall submit to the 
     congressional defense committees a report setting forth a 
     description and assessment of the effects of planned 
     reductions of personnel at the Joint Warfare Analysis Center 
     (JWAC) on the personnel skills to be available at the Center 
     after the reductions. The report shall be in unclassified 
     form, but may contain a classified annex.


                    AMENDMENT NO. 1178, as Modified

       At the end of subtitle C of title VIII, add the following:

     SEC. 848. REPORT ON AUTHORITIES AVAILABLE TO THE DEPARTMENT 
                   OF DEFENSE FOR MULTIYEAR CONTRACTS FOR THE 
                   PURCHASE OF ADVANCED BIOFUELS.

       Not later than 120 days after the date of the enactment of 
     this Act, the Secretary of Defense shall submit to the 
     congressional defense committees a report on the authorities 
     currently available to the Department of Defense for 
     multiyear contracts for the purchase of advanced biofuels (as 
     defined by section 211(o)(1)(B) of the Clean Air Act (42 
     U.S.C. 7545(o)(1)(B)). The report shall include a description 
     of such additional authorities, if any, as the Secretary 
     considers appropriate to authorize the Department to enter 
     into contracts for the purchase of advanced biofuels of 
     sufficient length to reduce the impact to the Department of 
     future price or supply shocks in the petroleum market, to 
     benefit taxpayers, and to reduce United States dependence on 
     foreign oil.


                           AMENDMENT NO. 1207

 (Purpose: To require Comptroller General of the United States reports 
on the major automated information system programs of the Deparment of 
                                Defense)

       At the end of subtitle G of title X, add the following:

     SEC. 1080. COMPTROLLER GENERAL OF THE UNITED STATES REPORTS 
                   ON THE MAJOR AUTOMATED INFORMATION SYSTEM 
                   PROGRAMS OF THE DEPARTMENT OF DEFENSE.

       (a) Assessment Reports Required.--
       (1) In general.--Not later than March 30 of each year from 
     2013 through 2018, the Comptroller General of the United 
     States shall submit to the appropriate committees of Congress 
     a report setting forth an assessment of the performance of 
     the major automated information system programs of the 
     Department of Defense.
       (2) Elements.--Each report under subsection (a) shall 
     include the following:
       (A) An assessment by the Comptroller General of the cost, 
     schedule, and performance of a representative variety of 
     major automated information system programs selected by the 
     Comptroller General for purposes of such report.
       (B) An assessment by the Comptroller General of the level 
     of risk associated with the programs selected under 
     subparagraph (A) for purposes of such report, and a 
     description of the actions taken by the Department to manage 
     or reduce such risk.
       (C) An assessment by the Comptroller General of the extent 
     to which the programs selected under subparagraph (A) for 
     purposes of such report employ best practices for the 
     acquisition of information technology systems, as identified 
     by the Comptroller General, the Defense Science Board, and 
     the Department.
       (b) Preliminary Report.--
       (1) In general.--Not later than September 30, 2012, the 
     Comptroller General shall submit to the appropriate 
     committees of Congress a report setting forth the following:
       (A) The metrics to be used by the Comptroller General for 
     the reports submitted under subsection (a).
       (B) A preliminary assessment on the matters set forth under 
     subsection (a)(2).
       (2) Briefings.--In developing metrics for purposes of the 
     report required by paragraph (1)(A), the Comptroller General 
     shall provide the appropriate committees of Congress with 
     periodic briefings on the development of such metrics.
       (c) Definitions.--In this section:
       (1) The term ``appropriate committees of Congress'' means--
       (A) the Committee on Armed Services, the Committee on 
     Homeland Security and Governmental Affairs, and the Committee 
     on Appropriations of the Senate; and
       (B) the Committee on Armed Services, the Committee on 
     Oversight and Government Reform, and the Committee on 
     Appropriations of the House of Representatives.
       (2) The term ``major automated information system program'' 
     has the meaning given that term in section 2445a of title 10, 
     United States Code.


                           AMENDMENT NO. 1227

  (Purpose: To require a Comptroller General report on redundancies, 
 inefficiencies, and gaps in DOD 6.1-6.3 Science and Technology (S&T) 
                               programs)

       At the end of subtitle G of title X, add the following:

     SEC. 1080. COMPTROLLER GENERAL REPORT ON DEPARTMENT OF 
                   DEFENSE SCIENCE AND TECHNOLOGY PROGRAMS.

       (a) Study.--The Comptroller General of the United States 
     shall conduct a study on unnecessary redundancies, 
     inefficiencies, and gaps in Department of Defense 6.1-6.3 
     Science and Technology (S&T) programs. The study shall--
       (1) focus on S&T programs within the Army, Navy, and Air 
     Force, as well as programs run by the Office of the Secretary 
     of Defense;
       (2) describe options for consolidation and cost-savings, if 
     any;
       (3) assess how the military departments and the Office of 
     the Secretary of Defense are aligning their programs with the 
     seven S&T strategic investment priorities identified by the 
     Assistant Secretary of Defense

[[Page S8019]]

     for Research and Engineering: Data to Decisions, Engineered 
     Resilient Systems, Cyber Science and Technology, Electronic 
     Warfare/Electronic Protection, Counter Weapons of Mass 
     Destruction, Autonomy, and Human Systems; and
       (4) assess how the military departments and the Office of 
     the Secretary of Defense are coordinating efforts with 
     respect to duplicative programs, if any.
       (b) Report.--Not later than January 1, 2013, the 
     Comptroller General shall submit to the congressional defense 
     committees a report on the findings of the study conducted 
     under subsection (a).


                           AMENDMENT NO. 1228

     (Purpose: To require a Comptroller General report on Science, 
         Technology, Engineering, and Math (STEM) initiatives)

       At the end of subtitle G of title X, add the following:

     SEC. 1080. COMPTROLLER GENERAL REPORT ON SCIENCE, TECHNOLOGY, 
                   ENGINEERING, AND MATH (STEM) INITIATIVES.

       (a) Study.--The Comptroller General of the United States 
     shall conduct a study assessing Science, Technology, 
     Engineering, and Math (STEM) initiatives of the Department of 
     Defense. The study shall--
       (1) determine which programs are ineffective, and which are 
     unnecessarily redundant within the Department of Defense;
       (2) describe options for consolidation and elimination of 
     programs identified under paragraph (1); and
       (3) describe options for how the Department and other 
     Federal departments and agencies can work together on similar 
     initiatives without unnecessary duplication of funding.
       (b) Report.--Not later than January 1, 2013, the 
     Comptroller General shall submit to the congressional defense 
     committees a report on the findings of the study conducted 
     under subsection (a).


                           AMENDMENT NO. 1237

    (Purpose: To require a Department of Defense assessment of the 
    industrial base for night vision image intensification sensors)

       At the end of subtitle E of title VIII, add the following:

     SEC. 889. DEPARTMENT OF DEFENSE ASSESSMENT OF INDUSTRIAL BASE 
                   FOR NIGHT VISION IMAGE INTENSIFICATION SENSORS.

       (a) Assessment Required.--The Under Secretary of Defense 
     for Acquisition, Technology, and Logistics shall undertake an 
     assessment of the current and long-term availability within 
     the United States and international industrial base of 
     critical equipment, components, subcomponents, and materials 
     (including, but not limited to, lenses, tubes, and 
     electronics) needed to support current and future United 
     States military requirements for night vision image 
     intensification sensors. In carrying out the assessment, the 
     Secretary shall--
       (1) identify items in connection with night vision image 
     intensification sensors that the Secretary determines are 
     critical to military readiness, including key components, 
     subcomponents, and materials;
       (2) describe and perform a risk assessment of the supply 
     chain for items identified under paragraph (1) and evaluate 
     the extent to which--
       (A) the supply chain for such items could be disrupted by a 
     loss of industrial capability in the United States; and
       (B) the industrial base obtains such items from foreign 
     sources; and
       (3) describe and assess current and future investment, 
     gaps, and vulnerabilities in the ability of the Department to 
     respond to the potential loss of domestic or international 
     sources that provide items identified under paragraph (1); 
     and
       (4) identify and assess current strategies to leverage 
     innovative night vision image intensification technologies 
     being pursued in both Department of Defense laboratories and 
     the private sector for the next generation of night vision 
     capabilities, including an assessment of the competitiveness 
     and technological advantages of the United States night 
     vision image intensification industrial base.
       (b) Report.--Not later than 180 days after the date of the 
     enactment of this Act, the Secretary of Defense shall submit 
     to Congress a report containing the results of the assessment 
     required under subsection (a).


                           AMENDMENT NO. 1240

  (Purpose: To provide for installation energy metering requirements)

       At the end of subtitle B of title III, add the following:

     SEC. 316. INSTALLATION ENERGY METERING REQUIREMENTS.

       The Secretary of Defense shall, to the maximum extent 
     practicable, require that the information generated by the 
     installation energy meters be captured and tracked to 
     determine baseline energy consumption and facilitate efforts 
     to reduce energy consumption.


                           AMENDMENT NO. 1245

   (Purpose: To provide for increased efficiency and a reduction of 
        Federal spending required for data servers and centers)

       Beginning on page 573, strike line 10 and all that follows 
     through page 575, line 16, and insert the following:
       (iv) A reduction in the investment for capital 
     infrastructure or equipment required to support data centers 
     as measured in cost per megawatt of data storage.
       (v) A reduction in the number of commercial and government 
     developed applications running on data servers and within 
     data centers.
       (vi) A reduction in the number of government and vendor 
     provided full-time equivalent personnel, and in the cost of 
     labor, associated with the operation of data servers and data 
     centers.
       (B) Specification of required elements.--The Chief 
     Information Officer of the Department shall specify the 
     particular performance standards and measures and 
     implementation elements to be included in the plans submitted 
     under this paragraph, including specific goals and schedules 
     for achieving the matters specified in subparagraph (A).
       (2) Defense-wide plan.--
       (A) In general.--Not later than April 1, 2012, the Chief 
     Information Officer of the Department shall submit to the 
     congressional defense committees a performance plan for a 
     reduction in the resources required for data centers and 
     information systems technologies Department-wide. The plan 
     shall be based upon and incorporate appropriate elements of 
     the plans submitted under paragraph (1).
       (B) Elements.--The performance plan required under this 
     paragraph shall include the following:
       (i) A Department-wide performance plan for achieving the 
     matters specified in paragraph (1)(A), including performance 
     standards and measures for data centers and information 
     systems technologies, goals and schedules for achieving such 
     matters, and an estimate of cost savings anticipated through 
     implementation of the plan.
       (ii) A Department-wide strategy for each of the following:

       (I) Desktop, laptop, and mobile device virtualization.
       (II) Transitioning to cloud computing.
       (III) Migration of Defense data and government-provided 
     services from Department-owned and operated data centers to 
     cloud computing services generally available within the 
     private sector that provide a better capability at a lower 
     cost with the same or greater degree of security.
       (IV) Utilization of private sector-managed security 
     services for data centers and cloud computing services.
       (V) A finite set of metrics to accurately and transparently 
     report on data center infrastructure (space, power and 
     cooling): age, cost, capacity, usage, energy efficiency and 
     utilization, accompanied with the aggregate data for each 
     data center site in use by the Department in excess of 100 
     kilowatts of information technology power demand.
       (VI) Transitioning to just-in-time delivery of Department-
     owned data center infrastructure (space, power and cooling) 
     through use of modular data center technology and integrated 
     data center infrastructure management software.


                           AMENDMENT NO. 1266

  (Purpose: To establish a training policy for Department of Defense 
                            energy managers)

       At the end of subtitle B of title III, add the following:

     SEC. 316. TRAINING POLICY FOR DEPARTMENT OF DEFENSE ENERGY 
                   MANAGERS.

       (a) Establishment of Training Policy.--The Secretary of 
     Defense shall establish a training policy for Department of 
     Defense energy managers designated for military installations 
     in order to--
       (1) improve the knowledge, skills, and abilities of energy 
     managers by ensuring understanding of existing energy laws, 
     regulations, mandates, contracting options, local renewable 
     portfolio standards, current renewable energy technology 
     options, energy auditing, and options to reduce energy 
     consumption;
       (2) improve consistency among energy managers throughout 
     the Department in the performance of their responsibilities;
       (3) create opportunities and forums for energy managers to 
     exchange ideas and lessons learned within each military 
     department, as well as across the Department of Defense; and
       (4) collaborate with the Department of Energy regarding 
     energy manager training.
       (b) Issuance of Policy.--Not later than 180 days after the 
     date of the enactment of this Act, the Secretary of Defense 
     shall issue the training policy for Department of Defense 
     energy managers.
       (c) Briefing Requirement.--Not later than 180 days after 
     the date of the enactment of this Act, the Secretary of 
     Defense, or designated representatives of the Secretary, 
     shall brief the Committees on Armed Services of the Senate 
     and House of Representatives regarding the details of the 
     energy manager policy.


                           AMENDMENT NO. 1276

 (Purpose: To require a pilot program on the receipt by members of the 
Armed Forces of civilian credentialing for skills required of military 
                       occupational specialties)

       At the end of subtitle D of title V, add the following:

     SEC. 547. PILOT PROGRAM ON RECEIPT OF CIVILIAN CREDENTIALING 
                   FOR SKILLS REQUIRED FOR MILITARY OCCUPATIONAL 
                   SPECIALTIES.

       (a) Pilot Program Required.--Commencing not later than nine 
     months after the date of the enactment of this Act, the 
     Secretary of Defense shall carry out a pilot program to 
     assess the feasibility and advisability of permitting 
     enlisted members of the Armed Forces to obtain civilian 
     credentialing or licensing for skills required

[[Page S8020]]

     for military occupational specialties (MOS) or qualification 
     for duty specialty codes.
       (b) Elements.--In carrying out the pilot program, the 
     Secretary shall--
       (1) designate not less than three or more than five 
     military occupational specialities or duty speciality codes 
     for coverage under the pilot program; and
       (2) permit enlisted members of the Armed Forces to obtain 
     the credentials or licenses required for the specialities or 
     codes so designated through civilian credentialing or 
     licensing entities, institutions, or bodies selected by the 
     Secretary for purposes of the pilot program, whether 
     concurrently with military training, at the completion of 
     military training, or both.
       (c) Report.--Not later than one year after commencement of 
     the pilot program, the Secretary shall submit to Congress a 
     report on the pilot program. The report shall set forth the 
     following:
       (1) The number of enlisted members who participated in the 
     pilot program.
       (2) A description of the costs incurred by the Department 
     of Defense in connection with the receipt by members of 
     credentialing or licensing under the pilot program.
       (3) A comparison the cost associated with receipt by 
     members of credentialing or licensing under the pilot program 
     with the cost of receipt of similar credentialing or 
     licensing by recently-discharged veterans of the Armed Forces 
     under programs currently operated by the Department of 
     Veterans Affairs and the Department of Labor.
       (4) The recommendation of the Secretary as to the 
     feasibility and advisability of expanding the pilot program 
     to additional military occupational specialties or duty 
     specialty codes, and, if such expansion is considered 
     feasible and advisable, a list of the military occupational 
     specialties and duty specialty codes recommended for 
     inclusion the expansion.


                           AMENDMENT NO. 1280

   (Purpose: To require the Secretary of Defense to submit, with the 
  budget justification materials supporting the Department of Defense 
budget request for fiscal year 2013, information on the implementation 
 of recommendations made by the Government Accountability Office with 
   respect to the acquisition of launch services through the Evolved 
                   Expendable Launch Vehicle program)

       At the end of subtitle E of title VIII, add the following:

     SEC. 889. IMPLEMENTATION OF ACQUISITION STRATEGY FOR EVOLVED 
                   EXPENDABLE LAUNCH VEHICLE.

       (a) In General.--The Secretary of Defense shall submit, 
     with the budget justification materials submitted to Congress 
     in support of the budget of the Department of Defense for 
     fiscal year 2013 (as submitted with the budget of the 
     President under section 1105(a) of title 31, United States 
     Code), the following information:
       (1) A description of how the strategy of the Department to 
     acquire space launch capability under the Evolved Expendable 
     Launch Vehicle program implements each of the recommendations 
     included in the Report of the Government Accountability 
     Office on the Evolved Expendable Launch Vehicle, dated 
     September 15, 2011 (GAO-11-641).
       (2) With respect to any such recommendation that the 
     Department does not implement, an explanation of how the 
     Department is otherwise addressing the deficiencies 
     identified in that report.
       (b) Assessment by Comptroller General of the United 
     States.--Not later than 60 days after the submission of the 
     information required by subsection (a), the Comptroller 
     General of the United States shall submit to the 
     congressional defense committees an assessment of that 
     information and any additional findings or recommendations 
     the Comptroller General considers appropriate.


                           AMENDMENT NO. 1298

   (Purpose: To extend the time limit for submittal of claims under 
          TRICARE for care provided outside the United States)

         At the end of subtitle A of title VII, add the following:

     SEC. 705. EXTENSION OF TIME LIMIT FOR SUBMITTAL OF CLAIMS 
                   UNDER THE TRICARE PROGRAM FOR CARE PROVIDED 
                   OUTSIDE THE UNITED STATES.

         Section 1106(b) of title 10, United States Code, is 
     amended by striking ``not later than'' and all that follows 
     and inserting the following: ``as follows:
         ``(1) In the case of services provided outside the United 
     States, the Commonwealth of Puerto Rico, or the possessions 
     of the United States, by not later than three years after the 
     services are provided.
         ``(2) In the case of any other services, by not later 
     than one year after the services are provided.''.


                           AMENDMENT NO. 1301

(Purpose: To authorize the award of the Distinguished Service Cross for 
Captain Fredrick L. Spaulding for acts of valor during the Vietnam War)

       At the end of subtitle I of title V, add the following:

     SEC. 586. AUTHORIZATION FOR AWARD OF THE DISTINGUISHED 
                   SERVICE CROSS FOR CAPTAIN FREDRICK L. SPAULDING 
                   FOR ACTS OF VALOR DURING THE VIETNAM WAR.

       (a) Authorization.--Notwithstanding the time limitations 
     specified in section 3744 of title 10, United States Code, or 
     any other time limitation with respect to the awarding of 
     certain medals to persons who served in the United States 
     Armed Forces, the Secretary of the Army is authorized to 
     award the Distinguished Service Cross under section 3742 of 
     such title to Captain Fredrick L. Spaulding for acts of valor 
     during the Vietnam War described in subsection (b).
       (b) Acts of Valor Described.--The acts of valor referred to 
     in subsection (a) are the actions of Fredrick L. Spaulding, 
     on July 23, 1970, as a member of the United States Army 
     serving in the grade of Captain in the Republic of Vietnam 
     while assigned with Headquarters and Headquarters Company, 3d 
     Brigade, 101st Airborne Division.


                           amendment no. 1303

(Purpose: To authorize the exchange with the United Kingdom of certain 
            F-35 Lightning II Joint Strike Fighter aircraft)

       At the end of subtitle D of title I, add the following:

     SEC. 158. AUTHORITY FOR EXCHANGE WITH UNITED KINGDOM OF 
                   SPECIFIED F-35 LIGHTNING II JOINT STRIKE 
                   FIGHTER AIRCRAFT.

       (a) Authority.--
       (1) Exchange authority.--In accordance with subsection (c), 
     the Secretary of Defense may transfer to the United Kingdom 
     of Great Britain and Northern Ireland (in this section 
     referred to as the ``United Kingdom'') all right, title, and 
     interest of the United States in and to an aircraft described 
     in paragraph (2) in exchange for the transfer by the United 
     Kingdom to the United States of all right, title, and 
     interest of the United Kingdom in and to an aircraft 
     described in paragraph (3). The Secretary may execute the 
     exchange under this section on behalf of the United States 
     only with the concurrence of the Secretary of State.
       (2) Aircraft to be exchanged by united states.--The 
     aircraft authorized to be transferred by the United States 
     under this subsection is an F-35 Lightning II aircraft in the 
     Carrier Variant configuration acquired by the United States 
     for the Marine Corps under a future Joint Strike Fighter 
     program contract referred to as the Low-Rate Initial 
     Production 6 contract.
       (3) Aircraft to be exchanged by united kingdom.--The 
     aircraft for which the exchange under paragraph (1) may be 
     made is an F-35 Lightning II aircraft in the Short-Take Off 
     and Vertical Landing configuration that, as of November 19, 
     2010, is being acquired on behalf of the United Kingdom under 
     an existing Joint Strike Fighter program contract referred to 
     as the Low-Rate Initial Production 4 contract.
       (b) Funding for Production of Aircraft.--
       (1) Funding sources for aircraft to be exchanged by united 
     states.--
       (A) In general.--Except as provided in subparagraph (B), 
     funds for production of the aircraft to be transferred by the 
     United States (including the propulsion system, long lead-
     time materials, the production build, and deficiency 
     corrections) may be derived from appropriations for Aircraft 
     Procurement, Navy, for the aircraft under the contract 
     referred to in subsection (a)(2).
       (B) Exception.--Costs for flight test instrumentation of 
     the aircraft to be transferred by the United States and any 
     other non-recurring and recurring costs for that aircraft 
     associated with unique requirements of the United Kingdom may 
     not be borne by the United States.
       (2) Funding sources for aircraft to be exchanged by united 
     kingdom.--Costs for upgrades and modifications of the 
     aircraft to be transferred to the United States that are 
     necessary to bring that aircraft to the Low-Rate Initial 
     Production 6 configuration under the contract referred to in 
     subsection (a)(2) may not be borne by the United States.
       (c) Implementation.--The exchange under this section shall 
     be implemented pursuant to the memorandum of understanding 
     titled ``Joint Strike Fighter Production, Sustainment, and 
     Follow-on Development Memorandum of Understanding'', which 
     entered into effect among nine nations including the United 
     States and the United Kingdom on December 31, 2006, 
     consistent with section 27 of the Arms Export Control Act (22 
     U.S.C. 2767), and as supplemented as necessary by the United 
     States and the United Kingdom.


                           amendment no. 1315

 (Purpose: To require the Secretary of Defense to submit to Congress a 
     long-term plan for maintaining a minimal capacity to produce 
        intercontinental ballistic missile solid rocket motors)

       At the end of subtitle H of title X, add the following:

     SEC. 1088. LONG-TERM PLAN FOR MAINTENANCE OF INTERCONTINENTAL 
                   BALLISTIC MISSILE SOLID ROCKET MOTOR PRODUCTION 
                   CAPACITY.

       The Secretary of Defense shall submit, with the budget 
     justification materials submitted to Congress in support of 
     the budget of the Department of Defense for fiscal year 2013 
     (as submitted with the budget of the President under section 
     1105(a) of title 31, United States Code), a long-term plan 
     for maintaining a minimal capacity to produce 
     intercontinental ballistic missile solid rocket motors.


                           AMENDMENT NO. 1317

   (Purpose: To require a report on the analytic capabilities of the 
   Department of Defense regarding foreign ballistic missile threats)

       At the end of subtitle G of title X, add the following:

[[Page S8021]]

     SEC. 1080. REPORT ON DEFENSE DEPARTMENT ANALYTIC CAPABILITIES 
                   REGARDING FOREIGN BALLISTIC MISSILE THREATS.

       (a) Report Required.--Not later than 180 days after the 
     date of enactment of this Act, the Secretary of Defense shall 
     submit to the congressional defense committees a report on 
     the analytic capabilities of the Department of Defense 
     regarding threats from foreign ballistic missiles of all 
     ranges.
       (b) Elements.--The report required by subsection (a) shall 
     include the following:
       (1) A description of the current capabilities of the 
     Department of Defense to analyze threats from foreign 
     ballistic missiles of all ranges, including the degree of 
     coordination among the relevant analytic elements of the 
     Department.
       (2) A description of any current or foreseeable gaps in the 
     analytic capabilities of the Department regarding threats 
     from foreign ballistic missiles of all ranges.
       (3) A plan to address any gaps identified pursuant to 
     paragraph (2) during the 5-year period beginning on the date 
     of the report.
       (c) Form.--The report required by subsection (a) shall be 
     submitted in unclassified form, but may include a classified 
     annex.


                           AMENDMENT NO. 1324

   (Purpose: To extend the authorization for a military construction 
  project for the Air National Guard to relocate a munitions storage 
     complex at Gulfport-Biloxi International Airport, Mississippi)

       On page 554, insert after the table relating to Air 
     National Guard the following:

                           Air National Guard: Extension of 2009 Project Authorization
----------------------------------------------------------------------------------------------------------------
                 State                    Installation or  Location            Project                Amount
----------------------------------------------------------------------------------------------------------------
Mississippi............................  Gulfport-Biloxi              Relocate munitions              $3,400,000
                                          International Airport.....   storage complex.........
----------------------------------------------------------------------------------------------------------------

                           AMENDMENT NO. 1326

 (Purpose: To require exploration of opportunities to increase foreign 
   military training with allies at test and training ranges in the 
                       continental United States)

       In section 331(b)(2), strike subparagraphs (K) and (L) and 
     insert the following:
       (K) identify parcels with no value to future military 
     operations;
       (L) propose a list of prioritized projects, easements, 
     acquisitions, or other actions, including estimated costs 
     required to upgrade the test and training range 
     infrastructure, taking into consideration the criteria set 
     forth in this paragraph; and
       (M) explore opportunities to increase foreign military 
     training with United States allies at test and training 
     ranges in the continental United States.


                           AMENDMENT NO. 1332

(Purpose: To require a report on the approval and implementation of the 
                        Air Sea Battle Concept)

       At the end of subtitle G of title X, add the following:

     SEC. 1080. REPORT ON APPROVAL AND IMPLEMENTATION OF AIR SEA 
                   BATTLE CONCEPT.

       (a) Report Required.--Not later than 180 days after the 
     date of the enactment of this Act, the Secretary of Defense 
     shall submit to Congress a report on the approved Air Sea 
     Battle Concept, as required by the 2010 Quadrennial Defense 
     Review Report, and a plan for the implementation of the 
     concept.
       (b) Elements.--The report required by subsection (a) shall 
     include, at a minimum, the following:
       (1) The approved Air Sea Battle Concept.
       (2) An identification and assessment of risks related to 
     gaps between Air Sea Battle Concept requirements and the 
     current force structure and capabilities of the Department of 
     Defense.
       (3) The plan and assessment of the Department on the risks 
     to implementation of the approved concept within the current 
     force structure and capabilities.
       (4) A description and assessment of how current research, 
     development, and acquisition priorities in the program of 
     record meet or fail to meet current and future requirements 
     for implementation of the Air Sea Battle Concept.
       (5) An identification, in order of priority, of the five 
     most critical force structure or capabilities requiring 
     increased or sustained investment for the implementation of 
     the Air Sea Battle Concept.
       (6) An identification, in order of priority, of how the 
     Department will offset the increased costs for force 
     structure and capabilities required by implementation of the 
     Air Sea Battle Concept, including an explanation of what 
     force structure, capabilities, and programs will be reduced 
     and how potentially increased risks based on those reductions 
     will be managed relative to other strategic requirements.
       (7) A description and assessment of the estimated 
     incremental increases in costs and savings from implementing 
     the Air Sea Battle Concept, including the most significant 
     reasons for those increased costs and savings.
       (8) A description and assessment of the contributions 
     required from allies and other international partners, 
     including the identification and plans for management of 
     related risks, in order to implement the Air Sea Battle 
     Concept.
       (9) Such other matters relating to the development and 
     implementation of the Air Sea Battle Concept as the Secretary 
     considers appropriate.
       (c) Form.--The report required by subsection (a) shall be 
     submitted in both unclassified and classified form.

  Mr. LEVIN. I thank Senator McCain and our staffs. We are going to 
continue to work to clear additional amendments following the cloture 
vote. We are now voting on cloture. We all as leaders and managers, of 
course, hope that this will pass.
  The ACTING PRESIDENT pro tempore. The Senator from Arizona.
  Mr. McCAIN. Madam President, I thank my colleagues for allowing this 
package of these amendments to go through. We will be working on 
additional amendments that we can agree to.
  We are about to vote on cloture, and if cloture is invoked, I want to 
inform my colleagues, those amendments that are pending and filed will 
be eligible for votes, and we will be using the chronology of when they 
were filed. We will be notifying every Member who has an amendment that 
is filed and pending and germane. We will try to arrange time 
agreements for those who want votes. We will be looking to also see 
areas where we could agree and adopt an additional package. It is my 
understanding that if cloture is invoked, we will have 30 hours, and 
during that period we wish to get these amendments resolved.
  I remind my colleagues that if the 30 hours expires and there are 
still pending germane filed amendments, there will have to be 
additional votes taken at some time after the 30 hours. So I would urge 
my colleagues who have filed, pending, germane amendments that we sit 
down during the cloture vote or just afterward and try and arrange a 
schedule of votes that is most convenient for them in keeping with 
their schedule.
  Again, I thank my colleagues for allowing that package to go through. 
Those are very important amendments which have been agreed to by both 
sides. I realize we have a long way to go, but this is a significant 
step forward.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Madam President, the only additional suggestion I would 
have is that Members who come here who have amendments that are both 
pending and germane, assuming we get cloture, if they could check with 
us, either side here, to see where they are on the chronology, they 
will get a feel as to where they are, because we are going to attempt 
to move down the chronology as amendments were made pending.


                             Cloture Motion

  The ACTING PRESIDENT pro tempore. The cloture motion having been 
presented under rule XXII, the Chair directs the clerk to read the 
motion.
  The legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close debate on S. 1867, the 
     National Defense Authorization Act for Fiscal Year 2012.
         Harry Reid, Carl Levin, Kent Conrad, Richard Blumenthal, 
           Claire McCaskill, Kay R. Hagan, Joe Manchin III, 
           Kirsten E. Gillibrand, Mary L. Landrieu, Ben Nelson, 
           Joseph I. Lieberman, Bill Nelson, Jim Webb, Jack Reed, 
           Christopher A. Coons, Mark Begich, Jeanne Shaheen.

  The ACTING PRESIDENT pro tempore. By unanimous consent, the mandatory 
quorum call is waived.
  The question is, is it the sense of the Senate that debate on S. 
1867, the National Defense Authorization Act for fiscal year 2012 shall 
be brought to a close.
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.

[[Page S8022]]

  The assistant legislative clerk called the roll.
  The yeas and nays resulted--yeas 88, nays 12, as follows:

                      [Rollcall Vote No. 212 Leg.]

                                YEAS--88

     Akaka
     Alexander
     Ayotte
     Barrasso
     Baucus
     Begich
     Bennet
     Bingaman
     Blumenthal
     Blunt
     Boozman
     Boxer
     Brown (MA)
     Brown (OH)
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coats
     Cochran
     Collins
     Conrad
     Coons
     Corker
     Durbin
     Enzi
     Feinstein
     Franken
     Gillibrand
     Graham
     Hagan
     Harkin
     Hatch
     Heller
     Hoeven
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johanns
     Johnson (SD)
     Johnson (WI)
     Kerry
     Kirk
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lugar
     Manchin
     McCain
     McCaskill
     McConnell
     Menendez
     Mikulski
     Moran
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Portman
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Sanders
     Schumer
     Sessions
     Shaheen
     Shelby
     Snowe
     Stabenow
     Tester
     Thune
     Toomey
     Udall (CO)
     Udall (NM)
     Vitter
     Warner
     Webb
     Whitehouse
     Wicker

                                NAYS--12

     Burr
     Coburn
     Cornyn
     Crapo
     DeMint
     Grassley
     Lee
     Merkley
     Paul
     Risch
     Rubio
     Wyden
  The ACTING PRESIDENT pro tempore. On this vote, the yeas are 88, the 
nays are 12. Three-fifths of the Senators duly chosen and sworn having 
voted in the affirmative, the motion is agreed to.
  The Senator from Nebraska.
  Mr. NELSON of Nebraska. Madam President, I want to begin my comments 
today on this year's National Defense Authorization Act by thanking all 
the members of the Strategic Forces Subcommittee. I would especially 
like to thank the subcommittee's ranking member, Senator Sessions, for 
the close working relationship we have shared. It is always a pleasure 
to work with my friend from Alabama.
  The annual National Defense Authorization Act is one of the most 
important pieces of legislation Congress passes every year, and this 
year marks what I hope will be the passing of the Defense Authorization 
Act for the 50th year in a row. I would like to give my colleagues a 
brief overview of the provisions in the National Defense Authorization 
Act we are considering today as they relate to the Strategic Forces 
Subcommittee.
  The jurisdiction of the subcommittee includes missile defense, 
strategic forces, space programs, intelligence programs, cybersecurity, 
the defense-funded portions of the Department of Energy, and the 
Defense Nuclear Facilities Safety Board.
  In preparing the provisions in the bill that relate to areas of our 
jurisdiction, the subcommittee held six hearings on defense programs at 
the Department of Energy, strategic nuclear forces, missile defense, 
and space programs at the Department of Defense, and implementation of 
the New START treaty. The subcommittee's provisions were adopted in a 
bipartisan manner. I again want to thank Senator Sessions, our ranking 
member, and his staff and the professional staff on the Armed Services 
Committee for the close work we have enjoyed with them working on the 
hearings and preparing this bill.
  Our committee oversees the nuclear strategic forces. As many know, 
the U.S. Strategic Command--in my home State of Nebraska--is charged 
with our Nation's nuclear deterrence.
  It is important to note that this bill strengthens and improves our 
Nation's nuclear command and control and all the missions that fall 
under USSTRATCOM by providing the full authorization of the new command 
and control complex. Reliable and assured command, control, and 
communication from the President to the nuclear forces is fundamental 
to our strategic deterrent, and the new command and control complex at 
Offutt Air Force Base in Nebraska will provide this mission surety.
  In the area of missile defense, we have funded the program at $10.1 
billion, including the full $1.2 billion requested for the Ground-Based 
Midcourse Defense System. We have also included a provision that would 
set forth the sense of this Congress that it is essential for the 
Ground-Based Midcourse Defense System to achieve the levels of 
reliability, availability, sustainability, and operational performance 
necessary to ensure that the United States remains protected.
  The bill also supports the development and deployment of the European 
Phased Adaptive Approach, EPAA, to missile defense. This is the U.S. 
Missile Defense Program to defend our military forces and NATO allies 
in Europe from Iranian missile threats. The Defense Department has 
nearly completed phase 1 of the EPAA with an Aegis Ballistic Missile 
Defense, BMD, ship now patrolling the Mediterranean and a missile 
defense radar now located in Turkey. The United States also 
successfully negotiated the agreements with Poland and Romania to 
deploy land-based Aegis BMD Systems in their countries in future phases 
of the EPAA.
  The committee also made a few funding adjustments in the new bill to 
reflect the fact-of-life changes since the Armed Services Committee's 
markup of its earlier bill, S. 1253.
  For example, the recent flight test failure of the Aegis Ballistic 
Missile Defense System, with the Standard Missile-3 Block IB 
interceptor, means the program will have a substantial delay before it 
can begin procurement. The program will also need additional research 
and development funds to fix the flight test problems. So the bill 
adjusts the funding to permit such fixes.
  In addition, the Terminal High Altitude Area Defense, or THAAD, 
System has experienced slower production than expected and will not be 
able to use all the funds planned and requested in the budget. 
Consequently, the bill adjusts the funding accordingly.
  In mid-2009, Secretary Gates directed U.S. Strategic Command to stand 
up U.S. Cyber Command as a subunified command. The command reached full 
operational capability a year ago.
  Since that time, the Chairman of the Joint Chiefs of Staff 
characterized cyber warfare as one of the two ``existential threats'' 
to America, and a former Director of National Intelligence publicly 
proclaimed his belief that adversaries could take down the Nation's 
power grid or devastate the country's financial system. Very damaging 
intrusions into government, military, and industrial networks are 
almost a daily occurrence, resulting in the loss of precious and 
expensive advanced technology--the technology that fuels economic 
growth and sustains our security.
  Over the last 2 years, the Strategic Forces Subcommittee has 
supported legislation to accelerate the arduous process of developing 
policies and doctrine to guide our responses to cyber attacks and to 
govern the use of cyber weapons by our own military forces. The 
subcommittee has also sponsored legislation to begin to close the gap 
in cyber defenses by developing new technological approaches in 
partnership with America's cutting-edge information technology sector.
  Moving on to space programs, the bill would provide the Air Force the 
authority to purchase in a block buy, using a fixed price contract, the 
next two Advanced Extremely High Frequency satellites--an important 
part of the nuclear command and control system. This will result in a 
20-percent savings.
  We have authorized the President's level of funding for the nuclear 
modernization program at the DOE's National Nuclear Security 
Administration, but we are fully aware that the Budget Control Act that 
was passed last summer has reduced the levels that can be appropriated 
by some $400 million. I would note that even with this reduction, it is 
still a 5-percent increase over last year's levels. I will be working 
with my colleagues to carefully evaluate the President's request for 
fiscal year 2013 in light of the commitments both the Congress and the 
administration made under the New START treaty for modern 
nuclearization.
  This Congress made commitments for modernization, and moving forward 
we must honor those commitments. Most importantly, we need to continue 
to ensure that our stockpile is safe, reliable, and works as intended 
by the military so that we maintain our strategic deterrent well into 
the 21st century.
  We understand the budget climate that we are in, and it is likely 
that realistic adjustments must be made as a

[[Page S8023]]

result of the mandated reductions to defense spending in the Budget 
Control Act. But we will work with the Department of Defense and U.S. 
Strategic Command to ensure that pressing priorities are met and our 
strategic deterrence are not undercut.
  Let me again thank my colleague, Senator Sessions, and our staff for 
the productive and bipartisan relationship we have had on this 
subcommittee and also all members of the subcommittee. I look forward 
to working with our colleagues to pass this important legislation.
  Madam President, I yield the floor.
  Mr. McCAIN. Madam President, I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. NELSON of Florida. Madam President, I ask unanimous consent that 
the order for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.


                           Cuban Oil Drilling

  Mr. NELSON of Florida. I want to speak while we are in this pause on 
the Defense bill about a looming problem that the entire eastern 
seaboard of the United States has; that is, the Spanish drilling 
company Repsol is bringing a rig in that has been constructed over in 
Asia, and sometime early next year they are going to drill in deep 
water off the north coast of Cuba.
  The Spanish drilling company is a very competent company. As a matter 
of fact, they adhere to safety standards that are required by the 
United States because they drill in the Gulf of Mexico in American 
waters. So if there is a responsible party in drilling, then we have 
one. However, there are other leases the Cuban Government is granting 
to other countries for drilling that may not adhere to the safe 
standards that are set that Repsol will agree to abide by, the same 
safety standards that they use drilling in American waters and have 
agreed in principle that they will follow a plan of action with the 
U.S. Secretary of the Interior in the case that there should be a 
spill.
  All of that is well and good, but there are other companies coming 
down the line drilling in other leases that may not adhere to their 
standards.
  If there were a spill off the north coast of Cuba, guess who is going 
to be affected because that is where the Gulf Stream comes along, and 
then flows northeast, parallels the Florida Keys and all those delicate 
coral reefs, comes in and hugs the east coast of Florida from Miami all 
the way to Palm Beach, goes off the coast a few miles, hugs the coast 
all the way up to the middle of the peninsula at Fort Pierce, FL, and 
then parallels the eastern seaboard all the way up past Georgia, South 
Carolina, North Carolina, and then leaves, paralleling the eastern 
seaboard at Cape Hatteras, and goes off across the Atlantic and ends up 
in the northern part of Europe. Now, if there were a major spill--it 
doesn't have to be to the magnitude of the Deepwater Horizon spill off 
of Louisiana. If there were a major spill and all that oil is carried 
in the Gulf Stream and it comes into the coast at Miami, Fort 
Lauderdale, and Palm Beach--you know what happened to the tourism 
industry all along the gulf coast when, in fact, on some of those 
coasts there was not much oil at all, but people didn't come as 
tourists because they thought the beaches were covered.
  Can you imagine the economic calamity that would occur as a result of 
a spill? Therefore, my colleague, Marco Rubio, and I and other 
Senators--in particular, Senator Menendez of New Jersey--have filed 
legislation that will require financial responsibility from a foreign 
source. If they spill in foreign waters, there would be a cause of 
action against them if damage is done to the interest of the United 
States, be it the governments of the United States, be it private 
individuals, or be it private companies.
  If we do not have a cause of action where there is liability as a 
result of a spill, by whomever, in foreign waters, and if it comes in 
the scenario that I have laid out, which is real spilling oil off the 
north coast of Cuba in a major oil disaster that is carried by the Gulf 
Stream up the eastern seaboard of the United States--if we do not have 
financial responsibility, then there is no incentive for those foreign 
oil companies drilling to adhere to safety standards and, if there is a 
spill, to quickly adhere to a spill cleanup plan.
  Talking about the economic disaster that occurred as a result of the 
gulf oilspill in the Deepwater Horizon, it would pale in comparison to 
the economic disaster that would occur in such a spill that would be 
carried by the Gulf Stream. It would not only affect Florida, it would 
affect Georgia, South Carolina, and North Carolina. If there were any 
eddy current that would carry it back in, it would take it right on 
into the Chesapeake on up into Cape May in New Jersey, and you see the 
particular consequences.
  As a matter of fact, the gulf stream goes by Bermuda. It could have 
devastating effects on that country.
  I hope our Senators, coming to this new reality, will realize that we 
have to remember the terrible consequences as a result of a major oil 
spill. Remember, this was a company off of Louisiana that was not 
adhering to the highest safety standards, and look at the disaster that 
occurred from that. Remember how they tried to hide the amount of oil 
that was being spilled because it was 5,000 feet below the surface of 
the water? It was not until we got the streaming video that the 
scientists could calculate that it wasn't 1,000 barrels a day it was 
dumping into the gulf, it was 50,000 barrels a day. As a result, before 
they got that well capped, it ended up being almost 5 million barrels 
of oil in the Gulf of Mexico.
  We don't even know the future consequences because there is a lot of 
oil out there sloshing around, and there is a lot of it down there 
deep. We don't know what is happening down there. We don't know what is 
happening to the critters. We know what is happening to some of the 
critters in the marshes where the oil has now mixed up into the 
sediment and the critters are down there digging around, and we are 
seeing the effect of that when we check the gills of these fish that 
are being hatched, living off the sediment. The consequences are not 
good.
  It is the responsible thing to do, to make foreign oil companies 
drilling in foreign waters understand there is going to be an economic 
consequence if they damage the economic interests of the United States. 
That is the bill Senator Menendez, Senator Marco Rubio, and I have 
filed. I commend it to the consideration of the Senate.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Franken). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mrs. GILLIBRAND. Mr. President, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 1211

  Mrs. GILLIBRAND. Mr. President, one of the reasons I came to Congress 
was to be a voice for our troops and our military families. They answer 
a call higher than any other, fighting to protect our country, our way 
of life, our values--all that we hold dear. Our men and women in 
uniform fight, put their lives on the line every day for us, and our 
job is to fight for them and ensure that when they come home, they have 
an opportunity to go to college, find a good-paying job, afford a new 
home, start a family, have access to quality health care.
  After a decade of two wars in Iraq and Afghanistan, we have asked 
more of our military than ever before, including our National Guard and 
Reserves. Our Reserve components are deployed in record numbers, 
including serving in combat zones. While they serve alongside our 
Active-Duty military, our Guard and Reserve members do not have access 
to all of the assistance, services, and benefits that the troops they 
fight shoulder to shoulder with have. Currently, our Guard and National 
Reserve members are left largely on their own to find and obtain 
services that they need to recover from combat, rejoin their families, 
and adjust back to normal civilian life. This needs to change.
  I am offering amendment No. 1211, together with my colleague, Senator 
Blunt of Missouri, to give our National Guard and Reserve members the 
services they not only deserve but desperately need. This amendment 
would expand access to health care, family and financial counseling, 
and other

[[Page S8024]]

services to which the Guard and Reserve members currently do not have 
full access. My amendment extends nationwide a highly successful 
program that is existing right now in Vermont. It would set up a system 
of support of fellow veterans across the country serving as outreach 
specialists, people our Guard and Reserve members can talk and relate 
to, and help them get access to the services they need. It would give 
the Defense Department the additional resources it needs to provide 
counseling and reintegration services for National Guard and Reserve 
members.
  This amendment has the strong support of the National Guard 
Association, which said this amendment would help ensure that 448,000 
National Guard men and women who have served in Iraq and Afghanistan 
since 9/11 are provided with the necessary services upon their return 
from war.
  Members of the National Guard and Reserve are the citizen soldiers 
who step up and accomplish extraordinary acts of valor and bravery for 
our country. They are veterans. They deserve these services when they 
return because of the sacrifices they made and continue to make for our 
great country.


                           Amendment No. 1189

  I would also like to speak in support of the amendment of Senator 
Murray, amendment No. 1189.
  Mental health disorders, substance abuse, and traumatic brain 
injuries affect nearly 20 percent of all servicemembers who have been 
deployed to Iraq and Afghanistan--that is one in five. But, unlike 
Active-Duty servicemembers, Guard and Reserve members do not have 
direct access to the counseling services they need, putting enormous 
strain on these veterans and the families who stand by them and who 
have stood by them.
  The amendment of Senator Murray would embed mental health 
professionals in armories and Reserve centers, bringing mental health 
support within reach for Guard and Reserve members where and when they 
need it.
  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BARRASSO. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BARRASSO. Mr. President, I ask unanimous consent to speak for up 
to 10 minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                            A Second Opinion

  Mr. BARRASSO. Mr. President, I come to the floor, as I have over the 
past year and a half, as a physician who has practiced medicine in 
Wyoming for a quarter of a century. I go home every weekend and visit 
with my former patients, my former colleagues. As I talk to people 
around the State of Wyoming about the newly passed health care law, 
their concerns are those we have heard from around the country and 
certainly those on the Senate floor. That is why I keep coming back to 
the Senate floor with a doctor's second opinion about the health care 
law.
  What we know patients would like in terms of health care is that the 
care they get is the care they need from the doctor they want, at a 
cost they can afford. For many people across this country, a cost they 
can afford is a major issue, which is why I think so many people were 
happy to hear the President say, in his initial talk about what he was 
proposing for health care in this country, we need to get the cost of 
health care down. He said: If his bill were to pass and become law, the 
cost of care would drop about $2,500 per family across the United 
States. That is what people were looking forward to.
  In so many ways, the President overpromised and underdelivered 
because what people have seen is the cost of their health care has 
continued to go up as a result of the President's health care law.
  The States around the country are now looking at ways to deal with 
this health care law. Many States have set up committees to deal with 
it based on their State legislatures, and we have done the same thing 
in my home State of Wyoming. In Wyoming, we have asked for a study to 
be done to take a look at what the impacts of the President's health 
care law would be on health care and the cost of care in our State. A 
report was authored by a Massachusetts group called Gorman Actuarial. 
The report examined how the health care reform law passed last year by 
Congress is going to affect the State of Wyoming specifically. This 
information is being used in Wyoming by our Health Benefits Exchange 
Steering Committee. That is the committee which is reviewing various 
options for a State-run health exchange, and that is what people are 
looking at: What is the best thing to do for our State.
  As they have come upon this work effort, what they are telling us is 
about the individual market for insurance--people who end up buying 
insurance individually because they don't get it necessarily through 
work; purchasing insurance in different ways, but they have to buy 
their insurance on the individual market. This report says that in 
Wyoming, as a result of the health care law, the current individual 
market enrollees will see average premiums increase by 30 to 40 percent 
based on the components of the law. Some supporters of the law say: 
Well, they are going to get more insurance than they would otherwise, 
and that is true because they are going to get a government-mandated 
amount of insurance which may be a lot more insurance than they want or 
need. That is one of the fundamental problems of this health care law, 
government-mandated levels of insurance. Many people in Wyoming feel 
they don't want that level of care, which is why I believe individuals 
should be able to opt out of this provision of the health care law. 
States ought to be able to opt out. States and individuals ought to be 
able to receive a waiver. But right now, that is not happening. So what 
we are seeing in Wyoming is a significant increase in the cost--not the 
decrease the President promised but an increase in the cost of health 
insurance beyond what it would have gone up had there not been a health 
care law at all.
  I talk to young people around the State--and I met with a number of 
young people from my State just the other evening--and they ask about 
this and how it is going to affect the young. What we see is their 
rates are going to go up quite a bit. A lot has to do with the fact 
that there is--that the lowest amount they can end up charging someone 
who is young and then compare that to someone who is older, the ratio 
is 3 to 1. So for someone who is not very healthy and older, they will 
only be paying three times what a younger person will be paying based 
on what passed this House and this Senate. That means that for those 
younger people, they are going to pay a lot more than they necessarily 
would based on their own good health, exercise habits, fitness, diet, 
and in terms of what their real costs ought to be to be insured.
  I guess it is not a surprise when we saw the election results coming 
out of the State of Ohio Tuesday a few weeks ago about the specific 
individual mandate that said everyone has to buy insurance. On that 
day, on election day in Ohio, 66 percent of the voters said they didn't 
want this government mandate, a mandate that people must buy 
government-approved insurance. They don't want that to apply to them. 
Two-thirds of the people in Ohio on election day voted against the 
mandate, which is not unusual to see because we have seen that across 
the country. We have seen that in Missouri last year on balloting day. 
We saw it in the new national polls.
  This health care law is less popular now than it was the day it was 
signed. People continue to want to be able to get out from underneath 
the health care law. That is why I continue to come to the Senate floor 
week after week with a doctor's second opinion as more information 
becomes available, just as this study in Wyoming became available. The 
President's promise, ``If you like what you have you can keep it,'' we 
are finding out is not true, and the fact that the President promised 
health care premiums would drop for families by $2,500 per family is 
not true.
  That is why I continue to believe this health care law is bad for 
patients, it is bad for providers--the nurses and the doctors who take 
care of those patients--and it is bad for the taxpayers

[[Page S8025]]

of this great country. That is why it is time to repeal and replace 
this broken health care law.
  Mr. President, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. UDALL of Colorado. Mr. President, I ask unanimous consent that 
the order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                     Amendments Nos. 1125 and 1126

  Mr. UDALL of Colorado. 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.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, briefly, while my friend from Colorado is 
on the floor, he said: Take the time. We have been taking time, I tell 
the Senator from Colorado, since September 11, 2001, when the United 
States of America was attacked. We passed the Detainee Treatment Act. 
We passed other pieces of legislation--the PATRIOT Act, and others. 
Take the time?
  I say, in all due respect, we have taken a lot of time--in fact, 
hundreds and hundreds of hours of debate, discussion--as to how to 
address this threat to the United States of America.
  If the Senator from Colorado supports the Feinstein amendment, I 
agree with that. I cannot agree that we have not taken the time. I 
personally have taken--I cannot tell you--untold hours addressing this 
issue of how we treat detainees. We may have a fundamental 
disagreement, but I do reject the argument that we have not taken the 
time.
  I yield the floor.
  Mr. UDALL of Colorado. Would the Senator respond to a question?
  Mr. McCAIN. Go ahead.
  Mr. UDALL of Colorado. 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

[[Page S8026]]

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.
  Mr. McCAIN. I thank the Senator from Colorado for his clarification, 
and I think I understand more clearly his rationale for his support of 
the amendment.
  I yield the floor.
  Mr. UDALL of Colorado. I yield the floor as well and suggest the 
absence of a quorum.
  The PRESIDING OFFICER (Mr. Udall of New Mexico). The clerk will call 
the roll.
  The bill clerk proceeded to call the roll.
  Mr. HOEVEN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


               North American Energy Security Act of 2011

  Mr. HOEVEN. Mr. President, I rise to speak on behalf of the North 
American Energy Security Act of 2011. This is legislation I am 
sponsoring, along with Senator Lugar, Senator Vitter, Senator Johanns, 
and 37 other cosponsors--we already have 37 cosponsors on this 
legislation. This is a solutions-oriented bill that addresses concerns 
along the route of the Keystone Pipeline. The Keystone Pipeline is 
designed to carry 700,000 barrels a day of oil from Alberta, Canada, 
from the oil sands area in Canada, to refineries in the United States 
along the gulf coast, both in Texas and in Louisiana.
  This is a $7 billion high-tech pipeline that will make a huge 
difference for our country, both in terms of energy security and also 
job creation. This is a project, Keystone Pipeline, that I have been 
working on for quite some time, formerly as Governor of the State of 
North Dakota and now as part of this body, the Senate. There already 
exists a pipeline called the Keystone Pipeline, which was built by 
TransCanada, that goes from Alberta, Canada, all the way down to our 
refineries. This pipeline runs through the eastern part of North Dakota 
and on down to Paducah, IL, and other locations as well, bringing 
approximately 600,000 barrels a day of Canadian crude into the United 
States.
  The Keystone XL project would also be constructed by TransCanada, and 
it would come down from the Alberta area in Canada down just along 
North Dakota's western border in eastern Montana and go on down to 
Cushing and, as I said, to the refineries along the gulf coast.
  In addition to bringing Canadian crude into the United States, it 
would also pick up crude along the way, crude produced in North Dakota. 
For example, in my home State of North Dakota, we will add 100,000 
barrels a day of light sweet crude produced in the Williston Bay, 
centered in North Dakota and Montana, into that pipeline.
  It is also designed to move our domestic crude to refineries as well. 
This is an important project that has been in the permitting process 
for 3 years. It has been going through the NEPA process, seeking an 
environmental impact statement and approval not only of EPA but of our 
State Department for 3 years.
  We need to get it going because it is not only about reducing our 
dependance on oil from the Middle East, Venezuela, and other places in 
the world that are not friendly to the United States, but it is also a 
huge job creator. This project is a big-time job creator. We are 
talking about a $7 billion investment to build the pipeline. We are 
talking about 20,000 construction jobs right away. We are talking about 
250,000 jobs over time. We are talking about $600 million in tax 
revenue to States and other localities.
  This is a huge project, and we need to get it going. We particularly 
need to get it going at a time when we have 9 percent unemployment in 
our economy and more than 14 million people looking for work. So we 
need it to get that economic activity going. We need it to get people 
back to work. We need it for energy security. We need this project to 
reduce our dependance on oil from the Mideast.
  Where is the project right now? The latest issue that has been raised 
as far as not getting approval for the project from the Department of 
State was that the State of Nebraska had environmental concerns that 
the pipeline, this 1,700-mile pipeline running from the oil sands in 
Canada all the way down to our refineries, that in its route through 
the State of Nebraska, it was going through an area that was 
environmentally sensitive and that would create a problem.
  It is the High Plains area, the Sand Hills area of Nebraska. The 
concern was that with the Ogallala aquifer underlying that area and the 
irrigation for that farming and ranching region, that pipeline was a 
problem. In fact, there was opposition in the State of Nebraska to the 
project for that reason.
  However, working with the company, TransCanada, and with the State of 
Nebraska, we have addressed that issue. Recently, the State of Nebraska 
had a special session. Gov. Dave Heineman called a special session in 
Nebraska. They held the session, and they came up with a plan, through 
their Department of Environmental Quality, working with the EPA, to 
reroute the project in the State of Nebraska.
  On the basis of that rerouting and going through the approval process 
they developed between the State and Federal Government, on that basis, 
they have now addressed that concern in Nebraska. What this legislation 
does, it essentially is a solutions-based piece of legislation that 
says: OK, we are addressing these issues that have been raised. Now we 
need to move forward to capture the tremendous benefits for our country 
that this project provides: big-time job creation and reducing our 
dependance on Middle Eastern oil.
  How does the bill work? Specifically, what it provides is that 60 
days after its passage, the pipeline is approved so work can commence 
on the Keystone XL pipeline. That means 20,000 jobs. That means $7 
billion in investment starts right away.
  Then, as to the Wyoming piece, the State of Wyoming, together with 
EPA and the Federal Government, works through to reroute in Nebraska, 
so that a portion of the pipeline is then approved once they have gone 
through their process and decided on the route that meets the concerns 
in Nebraska.
  In essence, this legislation, again, it is about addressing the 
concerns, solving the problem, and moving forward. This incorporates 
the special legislation and the solution that has been put forward by 
the State of Nebraska. It incorporates it right into the bill and 
enables us to move forward.
  I have referenced the tremendous benefits in terms of energy 
security, in terms of job creation, in terms of working with our best 
friend and ally, Canada, in reducing our dependence on oil from places 
such as the Middle East and Venezuela.
  But let me address one other point. Another point that has been 
brought up in opposition to the pipeline project is that the production 
of oil in Canada, in the oil sand region, produces CO2. So 
that if this pipeline is built, some argue then there will be more 
CO2 released because of production in Canada in the oil 
sands and that product coming into the United States.

  But, in fact, without this pipeline, we will produce more 
CO2. The point, let me underscore, is that this pipeline 
project will actually produce less CO2 than we would 
otherwise produce without the creation of the pipeline.
  Why is that? Let me go through it. If we do not have the pipeline, 
then instead of bringing that product into the United States, that 
product will still be produced. The production will still occur in 
Canada. But the pipeline, instead of coming into the United States, 
will be rerouted to the western border of Canada, and it will be sent 
to China.
  That means large oil tankers will be hauling the product to 
refineries in China. The refineries in China produce higher emissions 
than our refineries. Plus, we have those ships that produce 
CO2 as they haul all this product to the Far East. 
Furthermore, since that supply is not coming to the United States, we 
have to continue to import product from the Middle East and also from 
places such as Venezuela, as I mentioned.
  In essence, we have supertankers bringing that product to the United 
States. So not only are we, in essence, now hauling the equivalent of 
700,000 barrels a day around the world in supertankers and producing 
CO2 emissions there, we are also taking this

[[Page S8027]]

product over to the Chinese refineries, where they have higher 
emissions.
  My point is, the oil sands are still produced, are they not, under 
either scenario? But without this pipeline, we actually have higher 
CO2 emissions on a global basis. Again, it is about 
addressing all the concerns that have been raised with this project, 
and it does that. At the same time, we create tens of thousands of jobs 
right off the bat. We create hundreds of millions in revenue for States 
and localities at a time when they badly need it and, again, we reduce 
our dependance on oil from parts of the world where it truly is an 
issue for our country in regards to energy security.
  It is about common sense. It is about addressing all the issues that 
have been raised. I urge my colleagues to join me and the 37 sponsors 
and cosponsors that we already have on this legislation to pass it and 
help put people back to work, help get our economy going, and help 
improve our national energy security.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. MENENDEZ. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 1414

  Mr. MENENDEZ. Mr. President, I come to the floor to speak to a 
bipartisan amendment my colleague from Illinois, Senator Kirk, and I 
have offered. We believe it is one of the most critical issues facing 
our country in terms of national defense and global security. We have 
come together to the floor to speak about it.
  One of the greatest threats--if not the greatest--to the security of 
our Nation and Israel is the concerted effort by the Government of Iran 
to acquire the technology and materials to create a nuclear weapon that 
will do two things:
  First, we can be sure it will alter the balance of power in the 
Middle East.
  Second, altering the balance of power with a nuclear Iran dedicated 
to the destruction of the State of Israel would most certainly lead to 
hostilities--hostilities that could spill over to engulf the entire 
region and well beyond.
  We cannot, we must not, and we will not let that happen. But the 
clock is ticking. Published reports suggest we may be just a year away 
from Iran having a nuclear weapon and the ability to deliver that 
nuclear weapon to a target. To forestall this scenario and, more 
importantly, to prevent it from happening in the first place, we must 
use all of the tools of peaceful diplomacy available to us. Simply put, 
we must do everything in our power to prevent Iran from obtaining a 
nuclear weapon. I do not believe there is anyone on either side of the 
aisle who disagrees with that proposition.
  We come to the floor today to discuss a bipartisan amendment I have 
offered with my friend from Illinois, Senator Kirk, to limit Iran's 
ability to finance its nuclear ambitions by sanctioning the Central 
Bank of Iran, which has proven to be complicit in Iran's nuclear 
efforts. This amendment will impose sanctions on those international 
financial institutions that engage in business activities with the 
Central Bank of Iran.
  This is a timely amendment that follows the administration's own 
decision last week designating Iran as a jurisdiction of primary money 
laundering. In fact, the Financial Crimes Enforcement Network of the 
Department of the Treasury wrote:

       The Central Bank of Iran, which regulates Iranian banks, 
     has assisted designated Iranian banks by transferring 
     billions of dollars to these banks in 2011. In making these 
     transfers, the Central Bank of Iran attempted to evade 
     sanctions by minimizing the direct involvement of large 
     international banks with both the Central Bank of Iran and 
     designated Iranian banks.

  The Treasury Under Secretary for Terrorism and Financial 
Intelligence, David Cohen, has written this:

       Treasury is calling out the entire Iranian banking sector, 
     including the Central Bank of Iran, as posing terrorist 
     financing, proliferation financing, and money laundering 
     risks for the global financial system.

  The administration's own decisions clearly show that Iran's conduct 
threatens the national security of the United States and its allies, 
and the complicit action of the Central Bank of Iran, based on its 
facilitation of the activities of the government, its evasion of 
multilateral sanctions directed against the Government of Iran, its 
engagement in deceptive financial practices and illicit transactions, 
and, most importantly, its provision of financial services in support 
of Iran's effort to acquire the knowledge, materials, and facilities to 
enrich uranium and to ultimately develop weapons of mass destruction, 
threatens regional peace and global security.
  We recently learned just how far down the nuclear road Iran has come. 
The International Atomic Energy Agency's report indicates what all of 
us already suspected--Iran continues to enrich uranium and is seeking 
to develop as many as 10 new enrichment facilities; that Iran has 
conducted high-explosives testing and detonator development to set off 
a nuclear charge, as well as computer modeling of the core of a nuclear 
warhead; that Iran has engaged in preparatory work for a nuclear 
weapons test; that an August IAEA inspection revealed that 43.5 pounds 
of a component used to arm nuclear warheads was unaccounted for in 
Iran; and that Iran is working on an indigenous design for a nuclear 
payload small enough to fit on Iran's long-range Shahab-3 missile, a 
missile capable of reaching the State of Israel.
  What more do we need to know before we take the next diplomatic step 
to address the financial mechanism that is helping make Iran's nuclear 
ambitions a reality? These revelations, combined with Iran's 
provocative effort in October to assassinate the Saudi Ambassador to 
the United States, demonstrate that Iran's aggression has taken a 
violent turn and that we have every reason to believe that if Iran gets 
a nuclear weapon, it may very well use it, and use it against our ally, 
the State of Israel.
  This amendment will impose sanctions on any foreign financial 
institution that engages in significant transactions with the Central 
Bank of Iran, with the exception of transactions in food, medicine, and 
medical devices. It recognizes the administration's actions last week 
pursuant to section 311 of the PATRIOT Act designating the entire 
Iranian banking sector as a primary money laundering concern. It 
requires the President to prohibit transactions of Iranian financial 
institutions that touch U.S. financial institutions.
  To ensure that we don't spook the oil market, transactions with 
Iran's Central Bank in petroleum and petroleum products would only be 
sanctioned if the President makes a determination that petroleum-
producing countries other than Iran can provide sufficient alternative 
resources for the countries purchasing from Iran and if the country 
declines to make significant decreases in its purchases of Iranian oil.
  This bipartisan amendment has been carefully drafted to ensure the 
maximum impact on Iran's financial infrastructure and its ability to 
finance terrorist activities and to minimize the impact on the global 
economy. Iran has a history of exploiting terrorism against coalition 
forces in Iraq, in Argentina, Lebanon, and even, in their attempt to 
assassinate the Saudi Ambassador, in Washington. While Iran's drive to 
advance its nuclear weapons program has been slowed by U.S. and 
international sanctions, it clearly remains undeterred.
  Today, we take--hopefully today or tomorrow when we vote on this 
amendment--the next step in isolating Iran politically and financially. 
I look forward to continuing to work with my colleagues on the other 
side and with the administration to achieve this goal and to also 
advance the legislation I introduced earlier this year with many others 
on both sides of the aisle--the Iran, North Korea, and Syrian Sanctions 
Consolidation Act, which has 80 bipartisan cosponsors at this point. 
Our efforts to date have been transformative. But just as Iran has been 
prepared to adjust to the sanctions and unanticipated loopholes, just 
as it has been prepared to take advantage of every loophole to 
circumvent the sanctions and keep moving forward in its effort to 
achieve a robust nuclear program, we must be equally prepared to adjust 
and adapt by closing each loophole and stopping the regime's nuclear 
efforts. By identifying the Central Bank of Iran as the Iranian 
regime's partner and the financier of its terrorist agenda, we can 
begin to starve

[[Page S8028]]

the regime of the money it needs to achieve its nuclear goals.
  I urge my colleagues to support this bipartisan amendment that will 
go a long way toward closing financial loopholes and helping prevent 
the Iranian regime from moving its nuclear ambitions to the weapons 
phase and closer to the warhead of a missile.
  We cannot, we must not, and we will not allow Iran to threaten the 
stability of the region and the peace and security of the world. I 
appreciate the support of my distinguished colleague from Illinois who 
is on the floor, who has worked with us in this regard and come to a 
common view and effort to maximize the effect on Iran and minimize the 
effect to both us and the global economy, and certainly urge passage of 
this amendment.
  The PRESIDING OFFICER. The Senator from Illinois is recognized.
  Mr. KIRK. Mr. President, I rise in strong support of the Menendez-
Kirk amendment. I particularly thank my partner Senator Menendez, a 
member of the Banking Committee, who has been a leader regarding 
Iranian terror, proliferation of weapons of mass destruction, and 
repression of human rights for 20 or 25 years now.
  We are reaching a decisive point now in the relations of Iran to 
other countries and, most importantly, to the United States. I think 
this amendment comes at one of the final hours of how peaceful means 
and economic sanctions can be used to avoid a conflict. That is why it 
is so important for the Senate to adopt the Menendez-Kirk amendment, 
with the long-term goal of collapsing the Central Bank of Iran, so that 
country doesn't produce nuclear weapons that would destabilize the 
entire Middle East. We launched this effort, along with Senator 
Schumer, particularly in August when we called on our President to 
sanction the Central Bank of Iran.
  In these partisan times in which the two sides are far apart on many 
issues, we had 92 Senators--all but 8 Senators signed the letter--
saying: Collapse the Central Bank of Iran and use this as a tool in our 
diplomatic war chest to make sure we can remove one of the greatest 
dangers from the country, from one of the most dangerous regimes.
  The record is pretty clear. The International Atomic Energy Agency 
has ruled on the subject of Iran. We remember the IAEA because they, 
with regard to Iraq and the Saddam Hussein weapons of mass destruction 
program, were consistently correct and the Bush administration was 
wrong. The IAEA said in its intelligence estimate that the threat was 
overstated in Iraq. So with that level of credibility, we should listen 
to the IAEA on the subject of Iran. There, they have been extremely 
clear as well.
  They have outlined how Iran has a separate enrichment cycle, going 
way above the enrichment of uranium necessary to fuel a civilian 
reactor--5 percent--now toward 20 percent, where there is no civilian 
use, moving toward the 98 percent needed to power a nuclear weapon.
  They talked about undisclosed nuclear facilities, especially a 
brandnew one, which appears to be the final cascade necessary to enrich 
uranium to bomb-grade material.
  They most ominously talk about a warhead of a particular weight that 
would equate what would be in a nuclear weapon. Unlike a conventional 
warhead, which basically has a spark initiator and explosive material, 
this warhead has an electric generator aboard. That is only used to 
power and initiate a nuclear explosion.
  So it is clear from the statements of the independent United Nations 
agency that Iran--a signatory on the Nuclear Non-Proliferation Treaty--
is violating its obligation and is creating, as fast as it can, a 
nuclear weapons program.
  We also know that Iran has become the first space-bearing nation of 
the 21st century and that, unlike the North Koreans, who have failed in 
space launch time after time, Iran was able to orbit the Omid satellite 
aboard the Safir rocket and is the first nation to be able to 
accomplish that technological fete in this century. If you can orbit 
anywhere over the Earth, you can deorbit over the Earth--an ominous 
sign for the future of Saudi Arabia, Iraq, our allies in Turkey, but 
especially our friends in Israel, and, in the long term, the United 
States.
  The record of Iran with regard to its own citizens shows the 
character of its government. Long ago, we knew about 330,000 Baha'i 
citizens of Iran who have been forced to register their addresses, 
whose kids have all been kicked out of universities, and whose families 
are not allowed any contracting with the Government of Iran. The 
bureaucratic mechanisms of Kirstallnacht have formed. We have seen this 
movie in a different decade, wearing different uniforms, in a different 
country, but the ominous signs are that it may turn out in the same 
way.

  Many people on the international committee know about Neda, who was 
protesting the stealing of an election in Iran, and of her death simply 
for protesting that stolen election. We know about Hossein Ronaghi, the 
first blogger, who called for tolerance in Iran, who is now languishing 
in Evin prison. We know about Nasrin Sotoudeh, age 48, mother of two, 
whose sole crime was representing Shirin Ebadi, a Nobel laureate, and 
how she was thrown in jail.
  Beyond the nuclear program, beyond the missile program, beyond the 
repression of human rights in the country, we know about Iran's long 
record of terror; that Iran is the paymaster for Hezbollah. We have 
known that for a long time. They have tortured the poor country of 
Lebanon. But in some sense, there was a symmetry. We understood how 
this Shiite power would support a Shiite sect in Lebanon even though 
they spoke Arabic. But then, over the last decade, they jumped the 
Shiite-Sunni divide, and they also backed a new terror group called 
Hamas that was trying to surround our allies in Israel with missiles 
and the terror necessary to extinguish the Jewish people and the Jewish 
State.
  We know how the Iranian regime is now one of the central pillars of 
the Syrian dictatorship and how, as that dictatorship hangs onto power, 
it is somewhat on the back of Iranian money and Iranian weapons and 
expertise that allows them to repress their own people. Most recently, 
on the back of a bipartisan certification that Iran supports terror 
from President Reagan, President Bush, President Clinton, President 
Bush, and President Obama, we have seen a higher level of 
irresponsibility on behalf of the Iranian regime.
  According to our own Attorney General, the head of the Iranian 
Revolutionary Guard's Quds Force, Suliman, tried to contact and hire a 
Mexican drug cartel--one of the most dangerous, the Zetas--to 
assassinate the Saudi Arabian Ambassador to the United States at a 
Georgetown restaurant. It was only because the incompetent Iranians 
hired a DEA agent in Mexico that we found out about this. They would 
have, had they been able to accomplish their goals, lit off a car bomb 
in Washington, DC, paid for by the Government of Iran and briefed all 
the way to the top level of their government.
  Today, we find--after they had their Basij radical young person's 
movement overrun the British Embassy, seizing classified documents and 
holding, for a time, 50 British personnel--shades of the 1979 hostage 
crisis, when for 440 days Iranian radicals held Americans. Our allies 
in the United Kingdom have now made the decision to remove all Iranian 
diplomats from the United Kingdom.
  We have seen other calls, brave calls, of allied action. A man I 
admire greatly, the President of France, President Sarkozy, has called 
for seizing all purchases of Iranian oil. He has publicly called for 
the collapse of the Iranian Central Bank.
  So it is with this level of irresponsibility--on nuclear technology, 
on missiles, on the repression of human rights, on the support of 
terror, on the plot to kill Americans inside Washington, DC, and the 
overrunning of an embassy of our closest ally in Europe, the United 
Kingdom--that we come forward with the bipartisan Menendez-Kirk 
amendment.
  What does this amendment do? It basically says, in part, if you do 
business with the Central Bank of Iran, you cannot do business with the 
United States of America. It forces financial institutions and other 
businesses around the world to choose between the small and shrinking 
$300 billion economy of Iran and the $14 trillion economy of the United 
States. In that contest, we all

[[Page S8029]]

know how just about everyone will choose, and we wish that choice to be 
made. We seek to break the stable financial intermediary in between 
Iranian oil contracts and the outside world so that it will just be 
easier to buy oil from elsewhere and, working with our allies, to make 
that oil more plentiful.
  We realize the concerns with this amendment. Some have said this 
amendment comes too quickly; that it is too soon. So that is where 
Senator Menendez and I have agreed, working with the administration, to 
give time and flexibility. Under this amendment, nothing happens right 
away. Several weeks and several months go by before any action is 
required. That is intended as a signal to oil markets that this 
requirement is coming, that we seek for them, as our allies--for 
example, in Japan or South Korea or in Turkey--to wind up their current 
contracts and supplies and meet their needs by other means.
  By the way, other means are coming. We are expecting Libyan 
production to double. We are also expecting Iraqi production to go way 
up. Of course, we know the swing production of Saudi Arabia--no love 
lost toward the Iranians after having tried to kill their ambassador 
here. We will be working with the oil suppliers to make sure that 
everyone's needs are met while funding to the Iranian regime is slowly 
choked off.
  We also provide two waivers in this amendment--and this is very 
important--at the request of the administration. We say if there is a 
temporary restriction of oil supply, this amendment can be suspended 
for a time. If there is some unforeseen national security disaster, 
some real problem the President can see, he has that flexibility.
  But the general picture is this: The Central Bank of Iran, the heart 
and financial soul of a web of terror, of nuclear production, of human 
rights abuse, and the oppression of other people--principally in 
Syria--is no longer acceptable to the international community, and so 
this regime should operate without the benefit of funding from the 
international community.
  I think this amendment is one of the last best hopes for peace and to 
bring effective economic sanctions to bear so that a burden doesn't 
fall on our friends in Saudi Arabia or our allies in Israel to do the 
far more tough military work that may be required to remove this common 
danger.
  Many people say we can't convince a country that is on a nuclear 
weapons course to reverse course. I say, well, we show our ignorance of 
history because we saw the Argentines give up a nuclear program, the 
Brazilians, and likely the South Africans detonated a weapon and then 
decided to give up their program. In Kazakhstan and Ukraine, nuclear 
weapons were given up. In Libya, nuclear weapons were given up. With 
effective pressure, my hope is that it can happen here.
  We know President Ahmadinejad is not popular. We know the regime in 
general does not enjoy the support especially of its younger citizens. 
We know at least half of Iranians, in a stolen election, voted for the 
other guy who was not allowed to take power.

  So this amendment comes forward with a solid bipartisan pedigree. It 
has been endorsed specifically by Senators Lieberman, Schumer, Kyl, 
Feinstein, Gillibrand, Manchin, Nelson of Florida, Nelson of Nebraska, 
Stabenow, and Heller under the leadership of Senator Menendez and 
myself. For us, it gives time for the oil markets to adjust and unhook 
from Iran. It gives flexibility to the administration. But, most 
importantly, it helps us deal in an economic and diplomatic way with 
one of the greatest dangers to our society.
  We think about the future ahead, and some people say this amendment 
could cause some disruption in oil markets. Yes, we are asking 
countries to unhook from the terror regime in Iran. But just think 
about the instability that would come if military conflict broke out 
between Iran and Israel or worse if nuclear weapons were loosed from 
Iran in the Middle East. If we do nothing, as soon as 2 years from now 
we could have a detonation of an Iranian nuclear weapon in the Middle 
East. If we show weakness and a lack of resolve, then countries in that 
region will decide they need nuclear weapons programs of their own. We 
will give birth to the Saudi nuclear weapon program, the Egyptian 
nuclear weapon program, and others.
  This amendment is an attempt to make sure that for young Americans 
the 21st century is not the most dangerous century they will face, and 
to use the full economic weight of the United States, working with our 
allies, to remove what is the greatest emerging danger.
  I think Senator Menendez is living in the spirit of those who watched 
the 1930s and worried about when America slept. Well, we are not 
asleep. We know exactly what is happening. By decisive bipartisan 
action of the Senate, we are bringing the best pressure to bear, of 
nonmilitary means, to make sure our kids inherit a much safer 21st 
century.
  With that, I commend my partner in this effort, and I urge the Senate 
to adopt the Menendez-Kirk amendment.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. Mr. President, first, I rise in full support of this 
amendment, and I thank Senator Menendez for his leadership on this 
issue, which dates from a long time back, and Senator Kirk, who has 
really lit a flame of concern under this body about this issue, and 
justifiably so. They have done a great job, and I thank both of them 
for their strong efforts.
  I believe when it comes to Iran we should never take the military 
option off the table, but I have long argued that economic sanctions 
should be tried first and could be actually very effective in choking 
Iran's nuclear ambitions before any military option need be considered. 
But they have to be done strongly, they have to be done well, and they 
have to be done toughly.
  Earlier this month, the report on Iran's nuclear program by the IAEA 
was alarming and proved beyond a shadow of a doubt that, despite the 
lies--and there is no other word to use--by the Iranian Government, 
they are developing a nuclear weapon. According to recent reports, Iran 
could have at least one workable nuclear weapon within a year and 
another maybe 6 months after that.
  The new information shows that Iran has been working relentlessly to 
acquire the capability to produce a nuclear weapon. Additionally, the 
IAEA report details a highly organized program dedicated to acquiring 
the skills necessary to produce and test a bomb.
  So I say to America and the world: Enough is enough. The extreme and 
dangerous leader of the Government of Iran, Mahmoud Ahmadinejad, must 
be held accountable. One of our greatest problems that we will live 
with for decades is a nuclear Iran. We do not want to look back and 
say: If we were only a little quicker, a little stronger, a little 
tougher, we might have prevented it. The Iranians, when they see they 
might face real economic punishment if they proceed in developing 
nuclear weapons, have turned back in the past, and they will do that 
again.
  We have begun to impose economic sanctions, and I salute the 
President, who has worked very hard on this issue. I have talked with 
him on this issue. I know he believes in it strongly. I know the 
President knows the danger of a nuclear Iran and is working very hard 
in that regard. But every time we find ways to impose economic 
sanctions that have real teeth against Iran, they try to find a way 
around it. Our job is to move quickly and to plug those loopholes.
  We have sanctioned Iranian banks and pretty much prevented them from 
doing what we don't want them to do. According to all reports, it has 
had a real effect on the Iranian National Guard and on the economy of 
Iran itself. But the Iranian Government has now tried to move through 
the Central Bank of Iran. It has been heavily involved in terrorism and 
the financing of nuclear and conventional weapons technology. The 
Central Bank has played a critical role in helping other Iranian banks 
circumvent our effective financial sanctions.
  To close 10 holes but leave 1 open will not achieve our goal, and the 
last remaining open hole through which financial commerce can flow into 
Iran for prohibited activities is the Central Bank of Iran. The threat 
of sanctions against the Central Bank will frighten Iran. It might make 
them think twice before they proceed in developing this nuclear weapon 
because they will pay

[[Page S8030]]

real economic consequences that will hurt the Iranian regime and its 
henchmen, above all, and will, unfortunately, hurt the Iranian people 
as well. But there is no choice in this matter.
  So we must strengthen the President's hand as he continues to work to 
build an international coalition determined to prevent the rise of a 
nuclear Iran. By giving the administration the capability to impose 
crippling sanctions on Iran should they continue with their nuclear 
weapons program, Congress is putting forth a tough and smart plan to 
address the real threat Iran poses to the United States and our allies 
and, of course, Israel.
  This amendment will do three important things to strangle Iran's 
ability to continue with its nuclear weapons program. First, it will 
freeze the assets of Iranian financial institutions that come under 
U.S. jurisdiction. Second, it would prevent the maintenance in America 
of correspondence accounts by foreign financial institutions conducting 
significant petroleum-related transactions with Iran's Central Bank. 
And lastly, it would urge the President to undertake a diplomatic 
initiative to wean other nations off Iranian crude.
  The amendment supports the administration's actions last week 
designating the entire Iranian banking system as a threat to government 
and financial institutions because of Iran's illicit activities, 
including its pursuit of nuclear weapons and its support of terrorism.
  Senators Kirk and Menendez have done an excellent job in crafting a 
comprehensive plan, a smart plan, a tough plan, to arm the 
administration with the tools it needs to put a stop to Iran's nuclear 
rogue program. I have optimism that this will have a real effect and 
could indeed deter Iran if we move, and move quickly.
  I urge my colleagues to support this amendment.
  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. CARDIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CARDIN. Mr. President, I rise in support of the amendment offered 
by our colleagues, Senators Menendez and Kirk, and I thank them for 
their leadership on this issue. To me, this is an extremely important 
amendment that I hope will get the support of all the Members of the 
Senate. It tightens the restrictions we already have against Iran.
  I compliment the Obama administration for the work they have done 
internationally by expanding the sanction against Iran and against 
Iran's petroleum and petrochemical industries. It has been effective, 
because we have gotten other countries to follow the leadership of the 
United States.
  I think everyone in this body understands the risks of Iran to the 
security of not only its region but the entire world. Iran is a very 
dangerous nation. It has ambitions to spread terrorism in the region 
and to affect U.S. interests. It is for that reason that we cannot 
allow Iran to become a nuclear weapons state. Our most effective way to 
deal with this is to isolate Iran and to make sure the sanctions that 
are imposed actually will accomplish the objective of penalizing the 
country but not the individual people of Iran.
  The amendment offered by Senator Menendez and Senator Kirk would 
allow us to expand the sanctions against Iran to the Central Bank of 
Iran. The amendment requires the President to prohibit all transactions 
and property and interest in property of the Iranian financial 
institutions that touch U.S. financial institutions, and to prohibit 
the maintenance of correspondence or payable-through accounts by 
foreign banks that have conducted financial transactions with the 
Central Bank of Iran.
  What does that mean? It means we are trying to put the sanctions 
where they will have the most impact, and that is on the financial 
system of Iran itself. The Iranian Central Bank depends upon other 
banks around the world, and this amendment would allow us to have an 
effective way to isolate the Central Bank of Iran, putting additional 
focus on the Iranian policies that have violated the United Nations' 
resolutions.
  Iran has violated their commitments. They violated their commitments 
as they relate to their nuclear programs. They haven't complied with 
agreements they have entered into. It is important that the 
international community stand united. This is important for the 
stability of the region, it is important for the security of Israel, 
our closest ally in that region, it is important for the Arab states 
that have talked to us about the danger of Iran, it is important for 
U.S. interests. So it is important that we get this moving.
  Iran's complete disregard for its obligations under the Nuclear 
Nonproliferation Treaty and its directives of the multiple U.N. 
Security Council Resolutions belies the government's continued 
insistence that its nuclear program is one based upon its energy needs. 
It is not based upon its energy needs. It is trying to become a nuclear 
weapons state, something we must make sure does not occur.
  We need to take all steps we can in order to deny Iran the ability to 
have international legitimacy while they are violating their 
international commitments. This amendment continues the U.S. leadership 
on this issue and follows up on the work our Nation has done in getting 
international support to make clear to Iran that if they continue along 
these policies of violating their international commitments, they are 
going to continue to be isolated and it is going to affect the economy 
of their nation.
  I urge my colleagues to support the amendment.
  Mr. President, I yield the floor and I suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. I would ask that I be notified after 10 minutes.
  The PRESIDING OFFICER. The Chair will do so.


                           Amendment No. 1274

  Mr. SESSIONS. Mr. President, I have offered an amendment that 
clarifies--although that is not exactly the right word--the fact that 
an unlawful combatant or a combatant who is held by the U.S. military 
for being an enemy of the United States, a combatant against the United 
States, or an unlawful combatant, is not therefore entitled to be 
released if the U.S. military or the civilian courts choose to 
prosecute him and he is acquitted or after he serves his sentence but 
before hostilities have ended. These are entirely different matters.
  There are two questions: Are you an enemy combatant of the United 
States? These are the kinds of prisoners of war in World War II, 
Germans, for example, who were kept in Aliceville, AL. They stayed in a 
prisoner-of-war camp until the war was over, and they went home. They 
didn't violate the rules of war; they weren't prosecuted for any 
crimes. They simply were not released so that they could go and rejoin 
the battle in an attempt to kill more American service men and women. 
But they were lawful. They wore uniforms, they complied with the rules 
of war, and they were not able to be prosecuted.
  But when a person sneaks into the country with an intent to murder 
women and children and innocent noncombatants, does not wear a uniform, 
and violates other provisions of the rules of war, then they can be not 
only held as a combatant but they can be held and tried for commission 
of crimes against the United States. That is the classic standard of 
the law of war.
  I believe it is clear that if a person is captured and tried for a 
crime and, let's say, acquitted--whether in a civilian court or a 
military commission--they are not entitled to be released. To that end, 
I would quote a number of statements to that effect. But I believe the 
legal system would be a lot better off if we spoke clearly on that 
matter today so there is no doubt whatsoever.
  President Obama, on May 21, 2009, said this:

       But even when [the prosecution] process is complete, there 
     may be a number of people who could not be prosecuted for 
     past crimes, but who nonetheless pose a threat to the 
     security of the United States.


[[Page S8031]]


  In other words, they remain prisoners of war who are likely to join 
the enemy if they are released. He goes on to say:

       These are people who, in effect, remain at war with the 
     United States. As I said, I am not going to release 
     individuals who endanger the American people.

  I think that is consistent with all rules of war, and I think the 
President was right in that statement.
  Attorney General Eric Holder, in November of 2009, before the 
Judiciary Committee, said:

       I personally think that we should involve Congress in 
     [ensuring that the Executive Branch has the authority to make 
     that decision], that we should interact with . . . this 
     committee in crafting a law of war detention process or 
     program.

  In other words, he was calling on us to work with them in developing 
statutes. But, historically, I think the law is clear at any rate.
  Jeh Johnson, General Counsel to the Department of Defense, who came 
from the New York Times as general counsel for the New York Times--not 
a career Department of Justice defense attorney--said this before the 
Senate Armed Services Committee:

       The question of what happens if there's an acquittal is an 
     interesting question . . . I think that as a matter of legal 
     authority, if you have the authority under the laws of war to 
     detain someone, and the Hamdi decision said that in 2004, 
     that is true irrespective of what happens on the prosecution 
     side . . . as a matter of legal authority, I think we have 
     law-of-war authority, pursuant to the authority Congress 
     granted us with AUMF, as the Supreme Court interpreted it, to 
     hold that person provided they continue to be a security 
     threat, and we have the authority in the first place.

  So, again, he is saying if they are not convicted, they can still be 
held if they continue to be a threat.
  Secretary of State Hillary Clinton on ``Meet the Press'' November of 
last year:

       MR. GREGORY: But my question is, are we committed with 
     these terror suspects that if they are acquitted in civilian 
     courts, they should be released?
       SECRETARY CLINTON: Well, no. . . .

  Senator Jack Reed, our West Point graduate and a member of the Armed 
Services Committee--I am proud to serve with my Democratic colleague--
this is what he said the November before last:

       There are no guarantees [of conviction], but under basic 
     principles of international law, as long as these individuals 
     pose a threat, they can be detained, and they will. . . . I 
     do not believe they will be released . . . under the 
     principle of preventive detention, which is recognized during 
     hostilities.

  I believe this is legislation that would do nothing more but, 
importantly, will affirm the classical understanding of our laws of 
war, and as a result, the people who are charged can be tried, and if 
they are not convicted of a crime, they can still be detained.
  I would note that an individual American soldier or German soldier or 
Japanese soldier who is lawful and released has a duty to report back 
to their military unit and commence hostilities until the war is over.
  Senator Graham is here, a current JAG officer in the U.S. Air Force 
who has studied these matters very closely and has been engaged in this 
debate so eloquently. I am delighted to have him here and to have his 
support on this amendment. Perhaps he has some comments?
  Mr. GRAHAM. Perhaps the Senator will yield for a question?
  Mr. SESSIONS. I will be pleased to.
  Mr. GRAHAM. As I understand the purpose of this amendment, it is 
basically to have the Congress on record for the concept that once you 
are determined to be an enemy combatant, a part of the enemy force, 
there is no requirement to let you go at any certain time because in 
war it would be silly to let an enemy prisoner go back to the fight for 
no good reason.
  As the Senator has indicated, in the law of war, you can be 
prosecuted for a war crime. You could be taken to a Federal court and 
prosecuted for an act of terrorism, but if you are acquitted, that is 
not an event that would require us to release you if the evidence still 
exists that you are a threat to the country and part of the enemy 
forces; is that correct?
  Mr. SESSIONS. That is correct.
  Mr. GRAHAM. What I would like my colleagues to understand is that no 
German prisoner in World War II had the ability to go to a Federal 
judge and say: Let me go.
  If you had brought up the concept in World War II that an American 
citizen who was collaborating with the Nazis could not be held as an 
enemy combatant, you would have been run out of town.
  Does the Senator agree with me that in every war we have fought since 
the beginning of our Nation, unfortunately, there have been episodes 
where American citizens side with the enemy?
  Mr. SESSIONS. That is certainly true.
  Mr. GRAHAM. Does the Senator agree with me that our Supreme Court, as 
recently as about 3 to 4 years ago, affirmed the fact that we can hold 
our own as enemy combatants when the evidence suggests they have joined 
forces with the enemy? That is the law?
  Mr. SESSIONS. That is the law as I understand it.
  Mr. GRAHAM. Does my colleague agree with me that makes perfect sense, 
that an American who helps the Nazis has committed an act of war, not a 
common crime?
  Mr. SESSIONS. That is correct.
  Mr. GRAHAM. Does he agree with me that our courts understand that 
when an American citizen collaborates with an enemy of our Nation, that 
is an act of war by that citizen against his own country and the law of 
war applies, not domestic criminal law?
  Mr. SESSIONS. I certainly agree with the Senator that an American 
citizen can join in a war against the United States.
  Mr. GRAHAM. And they can be treated as an enemy combatant in 
accordance with our laws?
  Mr. SESSIONS. That is correct.
  Mr. GRAHAM. And the law of war allows the following: trial or 
detention or both. Is that correct?
  Mr. SESSIONS. That is correct.
  Mr. GRAHAM. You can be held as an enemy combatant without trial?
  Mr. SESSIONS. That is correct.
  Mr. GRAHAM. There is no requirement in international law to prosecute 
an enemy prisoner for a crime?
  Mr. SESSIONS. Absolutely. It is up to the detaining authority whether 
they believe a person has committed a crime.
  Mr. GRAHAM. Does the Senator agree with me that we do not want to 
start the practice in the United States that everybody we capture as an 
enemy prisoner is automatically a war criminal because that could come 
back to haunt our own people in future wars?
  Mr. SESSIONS. Absolutely.
  Mr. GRAHAM. That we should reserve prosecution for a limited class of 
persons among enemy prisoners?
  Mr. SESSIONS. That is correct.
  The PRESIDING OFFICER (Mr. Cardin). The Senator has consumed 10 
minutes.
  Mr. GRAHAM. I ask unanimous consent to have 1 more minute.
  The PRESIDING OFFICER. The Chair was informing the Senator that 10 
minutes has elapsed.
  Mr. SESSIONS. I asked to be informed at 10. I see Senator Sanders is 
here.
  Mr. GRAHAM. Let's just logically walk through this. In every war in 
which America has been involved, American citizens unfortunately have 
chosen at times to side with the enemy. Our courts say the executive 
branch can hold them as enemy combatants, and the purpose is to gather 
intelligence. Does the Senator agree with that?
  Mr. SESSIONS. That is a very important purpose of that.
  Mr. GRAHAM. The Senator has been a U.S. attorney; is that correct?
  Mr. SESSIONS. That is correct.
  Mr. GRAHAM. Does criminal law focus on intelligence gathering?
  Mr. SESSIONS. Absolutely not. It focuses on punishment for a crime 
already committed, normally.
  Mr. GRAHAM. Does the Senator agree that holding an enemy prisoner--
one of the benefits of capturing someone is gathering intelligence?
  Mr. SESSIONS. Absolutely.
  Mr. GRAHAM. Does the Senator agree that our criminal system is not 
focused on that?
  Mr. SESSIONS. Absolutely. In fact, we specifically tell people 
arrested that they have a right not to provide any intelligence, and it 
indicates it is clearly not the primary function.

  Mr. GRAHAM. Does the Senator agree with me that if this Congress

[[Page S8032]]

chose to change the law and say that an American citizen who has 
associated himself with al-Qaida cannot be interrogated for 
intelligence-gathering purposes, we would be less safe?
  Mr. SESSIONS. Absolutely.
  Mr. GRAHAM. And that would be a change in the law as it exists today.
  Mr. SESSIONS. Absolutely.
  Mr. GRAHAM. Does the Senator agree with me that his amendment that 
says you can be acquitted but still be held as an enemy prisoner is 
consistent with the law today?
  Mr. SESSIONS. I certainly believe it is.
  Mr. GRAHAM. I thank the Senator for offering this amendment.
  To my colleagues, we are trying to fight a war, not a crime, within 
the value systems of being the United States, being the champion of the 
free world. I do not believe in torturing people, but I do believe--
does the Senator agree with me that when it comes to interrogating 
people, sometimes the best tool is time?
  Mr. SESSIONS. Absolutely. Someone may not be willing to talk today, 
but as time goes by they might be willing to completely change and be 
forthcoming.
  Mr. GRAHAM. Does the Senator agree with me that we gathered good 
intelligence over time from people held at Guantanamo Bay?
  Mr. SESSIONS. That is certainly true.
  Mr. GRAHAM. Without water boarding them?
  Mr. SESSIONS. Absolutely.
  Mr. GRAHAM. My point to my colleagues--and I enjoyed this 
discussion--is that if you take the ability to hold someone as an enemy 
combatant off the table, you cannot interrogate them for intelligence-
gathering purposes, and if you put a time limit on how long you can 
hold them, you defeat the purpose of gathering intelligence. Does the 
Senator agree with that?
  Mr. SESSIONS. Absolutely. That would undermine one of the functions 
of the U.S. military in dealing with enemies of the state.
  Mr. GRAHAM. Does my colleague also agree that in this war, we provide 
a due process unlike any other war in the past?
  Mr. SESSIONS. There is no doubt. No war has ever been lawyered to the 
degree this has.
  Mr. GRAHAM. Does the Senator agree with me that every enemy 
combatant, citizen other otherwise, held at Guantanamo Bay or captured 
in the United States has their day in Federal court through habeas 
proceedings?
  Mr. SESSIONS. They do, and to a large degree that is different from 
any other war in our history.
  Mr. GRAHAM. We never had, in the history of other wars, a Federal 
judge determining whether the military has the ability to determine 
whether someone is an enemy combatant, but we have that in this war. 
Does the Senator agree with that?
  Mr. SESSIONS. Absolutely.
  Mr. GRAHAM. Does the Senator agree that the government has to prove 
to an independent judge by a preponderance of the evidence that the 
person is a member of al-Qaida involved in hostilities?
  Mr. SESSIONS. Yes.
  Mr. GRAHAM. So everybody held after judicial review for the first 
time in the history of warfare.
  Does the Senator agree with me that the annual review process that we 
have created by this law, this bill, the Defense Authorization Act, is 
something we have not done in other wars?
  Mr. SESSIONS. We have not done that before, yes.
  Mr. GRAHAM. Every detainee not only gets their day in Federal court, 
the government must prove they have a solid case to hold them as an 
enemy combatant, and everyone gets a yearly review as to whether they 
are a continuing threat?
  Mr. SESSIONS. I believe so, yes, consistent with the language in the 
recent Supreme Court opinions--recent opinions--and perhaps it even 
goes further than what the Supreme Court requires.
  Mr. GRAHAM. Is the Senator familiar with competency hearings in the 
civilian court?
  Mr. SESSIONS. Yes.
  Mr. GRAHAM. In our civilian law, we can hold people who are a danger 
to themselves or others without a trial but with judicial oversight; is 
that correct?
  Mr. SESSIONS. That is done every day, yes, with judicial oversight.
  Mr. GRAHAM. Would the Senator agree with me that it is very smart to 
evaluate whether we should allow someone to be let go and intelligence 
professionals should be able to make that decision as to whether the 
individual is a military threat, that that is a logical process?
  Mr. SESSIONS. Absolutely it is. And just for the fact of my 
amendment, it does not require people to be held. It only gives the 
government the authority to do so if they deem it appropriate for the 
defense of America.
  Mr. GRAHAM. Does my colleague agree with me that the recidivism rate 
of people we are releasing from Guantanamo Bay has gone up?
  Mr. SESSIONS. Yes. It is extraordinarily disappointing, actually, and 
against projections of many of those advocating for early release.
  Mr. GRAHAM. Some of these people have gone back to fighting and 
killed American soldiers?
  Mr. SESSIONS. They certainly have.
  Mr. GRAHAM. Does the Senator agree with me that the dangers our 
Nation faces do not justify changing existing law, denying this country 
the ability to gather intelligence even against an American citizen 
joined with al-Qaida, that that would be an unwise decision given the 
dangers we're facing?
  Mr. SESSIONS. Yes.
  Mr. GRAHAM. Does he agree with me that we need a legal system that 
understands the difference between fighting a war and fighting a crime?
  Mr. SESSIONS. So well said. I agree.
  Mr. GRAHAM. I thank the Senator.
  Mr. SESSIONS. Mr. President, with regard to the question of 
citizenship, I would just say to my colleague that this in no way deals 
with that. Whatever the courts, whatever the bill and other laws say 
about citizenship will apply here. It does not change that status at 
all. I do believe the legislation is clearly consistent with the 
statements and testimony of President Obama; Attorney General Eric 
Holder; Jeh Johnson, counsel of the Secretary of Defense; Secretary of 
State Clinton, and others.
  I urge acceptance of my amendment and yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.


                      Amendment No. 1073 Withdrawn

  Mr. LEVIN. Mr. President, I ask unanimous consent that the Cardin 
amendment, No. 1073, be withdrawn. That has the approval of the sponsor 
of the amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator from Vermont.
  Mr. SANDERS. Mr. President, I want to say a word about two amendments 
I have offered, both of which I think are important and both of which 
should be agreed to.
  As I think you know, this country has a recordbreaking deficit and a 
$15 trillion national debt. What many people do not know is that one of 
the reasons our deficit is as high as it is is because there is a 
significant amount of fraud from defense contractors who sell their 
products to the Department of Defense.
  I think the American people are very clear that when we pay one 
dollar for a product that goes to our military, we want to get one 
dollar's worth of value; that we do not want to see the taxpayers of 
this country or the Department of Defense ripped off because of 
fraudulent contractors. Unfortunately, fraud within the DOD in terms of 
private contractors is widespread.
  During the last number of years, we have seen company after company 
engaged in fraud, including some of the largest defense contractors in 
the United States. For example, Lockheed Martin, the largest defense 
contractor in our country, in 2008 paid $10.5 million to settle charges 
that it defrauded the government by submitting false invoices on a 
multibillion-dollar contract connected to the Titan IV space-launch 
vehicle program. That did not seem to sour the relationship between 
Lockheed and the DOD, which gave Lockheed $30.2 billion in contracts in 
fiscal year 2009--more than ever before. One of the patterns we see is 
that a company gets convicted or reaches a settlement with regard to 
charges of fraud, but next year they continue to get very significant 
contracts.
  In another case regarding one of the very large defense contractors, 
Northrop Grumman paid $62 million in 2005

[[Page S8033]]

to settle charges that ``it engaged in a fraud scheme by routinely 
submitting false contract proposals'' and ``concealed basic problems in 
its handling of inventory, scrap and attrition.'' Despite that serious 
charge of pervasive and repeated fraud, Northrop Grumman received $12.9 
billion in contracts the following year, 16 percent more than the year 
before.

  It seems clear to me that we need to do a much better job in terms of 
attacking fraud within the Department of Defense. Several years ago, I 
offered an amendment--which was passed--which provided that the DOD 
list virtually all of the fraud committed within the DOD. We have that 
report, and it is rather astounding. People should read it. Right now 
what this amendment does is it says to the DOD: Get your act together, 
hire the necessary well-trained staff so they are monitoring the 
contracts and making sure we do not continue to see the pervasive 
amount of fraud committed against the taxpayers of this country or the 
Defense Department. I would hope very much that amendment gets 
widespread support and that we see it passed.
  There is another amendment we have offered, which I think is equally 
important, and that deals with making sure the Department of Defense--
which turns out to be the largest single consumer of energy in the 
United States of America. Obviously, the Department of Defense has huge 
resources, controls huge numbers of buildings, has enormous aircraft, 
and so forth and so on. It is by far the single largest consumer of 
energy in the United States, accounting for approximately 90 percent of 
Federal energy consumption, with an annual energy cost of up to $18 
billion. So the Department of Defense spends $18 billion on energy 
costs alone. I think, in recent years, the Department of Defense has 
understood the importance of trying to move toward energy efficiency in 
terms of saving energy, but we have a long way to go.
  The major program to help cut energy consumption and costs at our 
military bases is called the Energy Conservation Investment Program. 
This is a very important program, although a relatively small program. 
This program has operated for more than 10 years, helping to invest in 
programs for more energy-efficient lighting, for example, at an Air 
Force base in Alaska, geothermal heating at Fort Knox Army Base in 
Kentucky, wind turbines for an Army base in Arizona, and solar power 
for the Air Force in Colorado.
  Historically, according to the Department of Defense, every $1 used 
by the Energy Conservation Investment Program yields $2 in savings. We 
invest in energy efficiency; we invest in sustainable energy. For every 
$1 invested, we save $2. This makes it a very positive program for the 
DOD. Some projects, such as energy efficiency improvements at a Navy 
base in California, achieve greater than $15 in savings for every $1 
invested.
  The Department itself, the DOD, has stated this program achieves 
``long-term public benefits by investing in technologies that increase 
economic efficiency and health benefits, build new sources of renewable 
energy, enhance job creation/retention, improve military facilities, 
and improve the quality of life for our troops and their families.''
  Unfortunately, the authorization for this program in the current 
Defense authorization bill is $135 million, a relatively small amount 
of money for a Department of Defense which spends about $18 billion 
every year on energy. I think what we want to see is, A, the DOD save 
money through energy efficiency and sustainable energy and, secondly, 
become a model for the country as we attempt to break our dependence on 
fossil fuel, foreign oil, and we attempt to cut back on greenhouse gas 
emissions.
  I can tell you that in the State of Vermont, we have our National 
Guard base, where we have worked with them to install a major solar 
installation which will pay a significant part of their electric bill. 
Frankly, I would like to see this done on National Guard bases all over 
the country and to the Active-Duty structures as well.
  The bottom line is, we are currently spending about $135 million, a 
relatively small amount of money compared to the $18 billion energy 
bill run up by the DOD. What this amendment would do is increase the 
authorization for the Energy Conservation Investment Program to $200 
million, up from $135 million--not anywhere near as much as I think we 
should be doing, but it is a step forward in helping the Department of 
Defense save money on their energy bill, break our dependence on 
foreign oil, and help us cut greenhouse gas emissions.
  We know there remain many worthy projects at our military bases that 
have not yet been funded at today's funding levels that could be funded 
if my amendment were to pass. The amendment is fully offset and paid 
for by reducing expenditures on construction at overseas' bases, while 
still leaving nearly $300 million in funding for that purpose. I think 
that is a decent offset.
  I applaud the Department of Defense and the military for the strides 
they have made so far in investing in energy efficiency and renewable 
energy. There are some wonderful projects going on all over this 
country--in fact, all over the world--under the DOD, and they deserve 
credit for that. They can and should be a leader for our country, but 
we still have a very long way to go.
  I would ask for support from my colleagues for this amendment, which 
will save the Department of Defense money, will help break our 
dependency on foreign oil, move us to energy independence, and cut 
greenhouse gas emissions.
  I yield the floor and note the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. McCAIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Arizona.


               Amendment No. 1230, As Modified, Withdrawn

  Mr. McCAIN. I ask unanimous consent to withdraw McCain amendment No. 
1230, as modified.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. CORKER. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded
  The PRESIDING OFFICER. Without objection, it is so ordered.


                    Amendment No. 1172, As Modified

  Mr. CORKER. Mr. President, I ask unanimous consent that a 
modification to amendment No. 1172 be accepted.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The amendment (No. 1172), as modified, is as follows:

  (Purpose: To require a report assessing the reimbursements from the 
  Coalition Support Fund to the Government of Pakistan for operations 
          conducted in support of Operation Enduring Freedom)

       At the end of subtitle B of title XII, add the following:

     SEC. 1230. REPORT ON COALITION SUPPORT FUND REIMBURSEMENTS TO 
                   THE GOVERNMENT OF PAKISTAN FOR OPERATIONS 
                   CONDUCTED IN SUPPORT OF OPERATION ENDURING 
                   FREEDOM.

       (a) In General.--Not later than 120 days after the date of 
     the enactment of this Act, the Secretary of Defense, shall 
     submit a report to the congressional defense committees and 
     the Committee on Foreign Relations of the Senate and the 
     Committee on Foreign Affairs of the House of Representatives 
     assessing the effectiveness of the Coalition Support Fund 
     reimbursements to the Government of Pakistan for operations 
     conducted in support of Operation Enduring Freedom.
       (b) Elements.--The report required under subsection (a) 
     shall include the following elements:
       (1) A description of the types of reimbursements requested 
     by the Government of Pakistan.
       (2) The total amount reimbursed to the Government of 
     Pakistan since the beginning of Operation Enduring Freedom, 
     in the aggregate and by fiscal year.
       (3) The percentage and types of reimbursement requests made 
     by the Government of Pakistan for which the United States 
     Government has deferred or not provided payment.
       (4) An assessment of the effectiveness of Coalition Support 
     Fund reimbursements in supporting operations conducted by the 
     Government of Pakistan in support of Operation

[[Page S8034]]

     Enduring Freedom and of the impact of those operations in 
     containing the ability of terrorist organizations to threaten 
     the stability of Afghanistan and Pakistan and to impede the 
     operations of the United States in Afghanistan.
       (5) Recommendations if any, relative to potential 
     alternatives to or termination of reimbursements from the 
     Coalition Support Fund to the Government of Pakistan, taking 
     into account the transition plan for Afghanistan.
       (c) Form.--The report required under subsection (a) shall 
     be submitted in unclassified form, but may contain a 
     classified annex.

  Mr. CORKER. Mr. President, I wish to speak briefly about this 
amendment. I think most people in this body understand we are 
reimbursing the Pakistani military for efforts they are putting forth 
on behalf of what we are doing in Afghanistan in Enduring Freedom. We 
have crafted an amendment that asks for certain reporting to take place 
from the Pentagon and for them to look at ways of diminishing this 
reimbursement over time as we wind down our operations in Afghanistan.
  This amendment has been drafted in such a way as to not further 
escalate tensions between us and the Government of Pakistan. This is a 
good-government type of amendment that asks the Pentagon to begin 
looking at ways of decreasing the support we are giving to the 
Pakistani military on our behalf regarding Afghanistan as we wind down 
our operations there simultaneously.
  It is my understanding that both the chairman and ranking member of 
the Armed Services Committee have accepted this, there is no hold from 
the majority on the Foreign Relations Committee, and I hope we will 
have an opportunity to vote and pass this by voice vote very soon.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, I support the amendment, as modified, by 
the Senator from Tennessee, Mr. Corker, who has devoted a great deal of 
time and effort and thought to this issue, and the result is this 
amendment. I point out that it would require the Secretary of Defense 
to prepare a report on the effectiveness of coalition support fund 
reimbursements made to Pakistan in support of coalition military 
operations in Afghanistan.
  Before I proceed, let me once again express my deep condolences to 
the families of the Pakistani soldiers who were killed this weekend in 
a cross-border air action. All Americans are deeply saddened by this 
tragedy, and I fully support NATO and the U.S. military in their 
commitment to conduct a thorough and expeditious investigation.
  As my colleagues will recall--this is an important aspect of Senator 
Corker's amendment--Congress has authorized and appropriated funding 
for coalition support fund reimbursements to Pakistan since we began 
our military operations in Afghanistan. At the time, Pakistan made a 
strategic decision to support the U.S. war effort against the Taliban 
government in Afghanistan and their al-Qaida terrorist allies. In 
response, Congress and the Bush administration agreed to reimburse the 
Pakistani Government for military activities that support our mission 
in Afghanistan.
  Over the past decade, Congress has provided billions of dollars worth 
of these reimbursements to Pakistan, and we should acknowledge that 
much good has come of it. Over the past few years in particular, 
Pakistan has shifted tens of thousands of their soldiers from the 
eastern border of their country opposite India to the tribal areas in 
western Pakistan. Pakistani troops have been deployed and engaged in 
military operations in their western provinces and tribal areas for 
more than 2 years straight. They have paid a heavy price in this 
prolonged fighting.
  Hundreds of Pakistani troops have given their lives to fight our 
mutual terrorist enemies in their country, and thousands of Pakistani 
civilians have been tragically murdered in the same time by these 
militant groups who show no compunction about attacking weddings and 
funerals and mosques. We honor the sacrifice of Pakistan's soldiers, 
and we mourn the loss of innocent Pakistani civilians.
  It must be noted, however, that certain deeply troubling realities 
exist within Pakistan. It must be noted that elements in Pakistan's 
army and intelligence service continue to support the Haqqani Network 
and other terrorist groups that are killing U.S. troops in Afghanistan, 
as well as innocent civilians in Afghanistan, India, and Pakistan. It 
must also be noted that the vast majority of the materials for 
improvised explosive devices that are maiming and killing U.S. troops 
in Afghanistan originate within Pakistan. These are facts. We cannot 
deny them. Any effective strategy for Pakistan and Afghanistan must 
proceed from this realistic basis.
  It is for this reason that I believe this amendment and this report 
would be extremely useful. Already, in response to recent Pakistani 
activities, the administration has chosen to withhold coalition support 
fund reimbursements to Pakistan. Over the past two quarters, that 
withheld money amounts to roughly $600 million. I can imagine that, 
amid the current tensions, further administration requests to Congress 
for reimbursement of coalition support funds for Pakistan will not be 
forthcoming.
  The report requested in this amendment would seek additional 
information on the amounts, types, and effectiveness of coalition 
support fund reimbursements to the Government of Pakistan. It also 
would seek recommendations as to the future disposition of this 
program, including potential alternatives to it or the possible 
termination of it altogether. That option cannot be ruled out. This is 
valuable information and recommendations to have as Congress continues 
to discuss and debate not just the future of the coalition support fund 
reimbursements to Pakistan but the future of our relationship with 
Pakistan more broadly. I strongly support this amendment.
  Again, I don't want to spend too much time stating the facts. This is 
a terrible dilemma. The fact is that Pakistan is a nuclear nation. They 
have a significant nuclear inventory. The fact is that for 10 years we 
and Pakistan had virtually no relations. We found that not to be a 
productive exercise. But at the same time, when there exists--as my 
colleague from Tennessee agrees--two fertilizer factories from which 
come the majority of the materials used for the majority of IEDs 
manufactured and that are killing young Americans, it is not tolerable. 
I understand, as I have said earlier in my comments, the tragedy that 
resulted from the deaths of these young Pakistani soldiers. I also 
understand, as every one of us does, what it is like to call a family 
member of a young man or woman who has lost their life in Afghanistan, 
which has happened many times, as a result of an IED.
  In a hearing of the Armed Services Committee, the then-Chairman of 
the Joint Chiefs of Staff ADM Mike Mullen, stated:

       The fact remains that the Quetta Shura and the Haqqani 
     Network operate from Pakistan with impunity.

  I wish to repeat, these are the words of the former Chairman of the 
Joint Chiefs of Staff.

       Extremist organizations serving as proxies of the 
     government of Pakistan are attacking Afghan troops and 
     civilians as well as U.S. soldiers. For example, we believe 
     the Haqqani Network--which has long enjoyed the support and 
     protection of the Pakistani government and is, in many ways, 
     a strategic arm of Pakistan's Inter-Services Intelligence 
     Agency--is responsible for the September 13th attacks against 
     the U.S. embassy in Kabul.

  He goes on to say:

       This is ample evidence confirming that the Haqqanis were 
     behind the June 28th attack against the Inter-Continental 
     Hotel in Kabul and the September 10th truck bomb attack that 
     killed five Afghans and injured another 96 individuals, 77 of 
     whom were U.S. soldiers . . .

  Finally, another comment by Admiral Mullen who, by the way, worked 
very hard for a long period of time to develop a close working 
relationship with General Kayani and other military leaders in 
Pakistan. He went on to say:

       The Quetta Shura and the Haqqani Network are hampering 
     efforts to improve security in Afghanistan, spoiling 
     possibilities for broader reconciliation, and frustrating 
     U.S.-Pakistan relations. The actions by the Pakistani 
     government to support them--actively and passively--
     represents a growing problem that is undermining U.S. 
     interests and may violate international norms, potentially 
     warranting sanction. In supporting these groups, the 
     government of Pakistan, particularly the Pakistani Army, 
     continues to jeopardize

[[Page S8035]]

     Pakistan's opportunity to be a respected and prosperous 
     Nation with genuine regional and international influence.

  Finally, I wish to say again this is an incredibly difficult 
challenge for U.S. security policy. We have a country on which we are 
dependent in many respects for supplies, for cooperation, for, 
hopefully, not to be a sanctuary, although it is not the case, for 
Taliban and al-Qaida elements. We have a country that is a nuclear 
power, and we have a country that has a government that I will say 
charitably is very weak.
  It seems to me the Corker amendment is important for the American 
people to know exactly where we are, what policy we are going to 
formulate, and what measures need to be taken, because we have, as I 
mentioned earlier, spent billions of U.S. taxpayers' dollars. That 
doesn't play very well in States such as mine where we have 9 percent 
unemployment and more than half--or just less than half the homes 
underwater. So the Corker amendment isn't all we need. In fact, we need 
to have a national debate and discussion about the whole issue of our 
relations with Pakistan. But I believe the Corker amendment is a very 
important measure so we can assure the American people that not only 
are their tax dollars wisely spent but that actions are being taken to 
prevent needless wounding and death of our brave young men and women 
who are serving in the military.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, I support the amendment of the Senator from 
Tennessee. It is a balanced amendment which deals with a very complex 
situation. What Senator Corker is doing is pointing out very important 
facts. One is that Pakistan has received a lot of funds from the United 
States for this particular purpose which is aimed at helping the 
success of our operations in Afghanistan. The whole purpose of the 
coalition support fund is to reimburse Pakistan for the support they 
provide--for instance, in providing security for trucks and other 
equipment that is going through Pakistan that have oil, fuel, food 
going into Afghanistan to support the effort in Afghanistan. That is 
the purpose of these funds. It is a good purpose. This is not a foreign 
aid deal; this is a reimbursement deal.
  The problem is that while on the one hand the Pakistanis are 
assisting us, on the other hand they are assisting our enemy and the 
enemy of mankind and the enemy of the Afghan people and the enemy of 
the coalition forces in Afghanistan. That is the problem. That is the 
dilemma which we all face and which this amendment seeks to address. 
Again, it does so in a way which doesn't prejudge the outcome of the 
assessment, but it makes a very important point, which is, as is now 
stated in the amended final paragraph, that we need recommendations 
given this ``on the one hand they are with us, on the other hand they 
are against us'' situation. We need recommendations from the 
administration, if any, relating to potential alternatives to or 
termination of reimbursements for the coalition support fund, the 
Government of Pakistan, taking into account the transition plan for 
Afghanistan.
  I agree with my friend from Arizona that we send condolences to the 
families of troops in Pakistan who have recently lost their lives. We 
also have to understand that Pakistan has paid a huge price for 
terrorism in their country against their people. They have paid a 
massive price. But what is unacceptable to us is that they are making 
us pay a price by providing a safe haven for the Haqqanis and for the 
Quetta Shura. Our troops, our families, coalition troops, coalition 
families, Afghan troops, and Afghan families are paying a heavy price 
because of the Pakistan support through their ISI for the insurgency in 
Afghanistan.
  Admiral Mullen, a former Chairman of the Joint Chiefs of Staff, put 
it very succinctly. He said the Haqqani Network is a veritable arm of 
the Pakistan intelligence service. When he was pressed on that 
formulation, he said he meant every word of it.
  So we have to send an important message to Pakistan, and the message 
is that we want a normal relationship if we can have one, but we cannot 
have a normal relationship if you are, on the one hand, supporting the 
very people who are attacking us in Afghanistan and, on the other hand, 
purporting to help us through the protection of supplies going through 
Pakistan, helping us succeed in Afghanistan.
  We cannot have it both ways. They cannot have it both ways. This 
amendment sends a very significant and important message, I believe, to 
the Pakistanis and to our coalition allies and to our Afghan partners 
that what is going on inside Pakistan has to come to an end. I believe 
this will help bring that important result about. So I very much 
support the amendment of Mr. Corker, the Senator from Tennessee, and 
hope we can adopt it.
  If there is no further debate about it--there may be others who do 
want to debate, so I yield the floor.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. CORKER. Mr. President, because of the tremendous cooperation of 
the Senator from Michigan and the Senator from Arizona--obviously, my 
goal is to call for this amendment to be adopted--I did not provide a 
lot of context because I know they both support this amendment. But I 
want to thank them both for their comments.
  I do not think there are two Senators who can better articulate the 
issue we face in Afghanistan with Pakistan, which is both a friend and 
a foe on many occasions. None of us who have traveled to Afghanistan--I 
know these two Senators have probably more than most, but all of us who 
have been there have heard our generals talking about the fact that 
they are fighting a war in Afghanistan that is really being led and 
directed out of Pakistan.
  So basically we have an issue here. I think the two Senators have 
articulated the issue very well. The fact is, we need to know, first of 
all, if what we are doing in support of the Pakistan military is 
effective for us, and the two Senators have outlined that is a big 
issue.
  The second piece is how we are actually reimbursing. If you talk with 
folks at the State Department, we literally are going through reams of 
invoices and documents, looking at how many bullets they have used, how 
much food has been supplied to the military, what is going to be 
counted, what is not going to be counted. We are spending more time, in 
many ways, accounting for this than we are really looking at how 
effective the aid is.
  This amendment would deal with both of those issues. I thank the 
Senators for putting this in the proper context, and I do hope, with 
the Senators' support and the support of the chairman of the Foreign 
Relations Committee, that this is an amendment we can voice vote. I 
thank both Senators for their leadership on this issue but also for 
putting this in the appropriate context.
  I yield the floor.
  Mr. McCAIN. Mr. President, I urge adoption of the amendment.
  The PRESIDING OFFICER. Is there further debate on the amendment?
  Without objection, the amendment, as modified, is agreed to.
  The amendment (No. 1172), as modified, was agreed to.
  Mr. LEVIN. I move to reconsider the vote.
  Mr. McCAIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. LEVIN. Mr. President, I believe Senator Cantwell will want to be 
recognized.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll of the Senate.
  The legislative clerk proceeded to call the roll.
  Ms. CANTWELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. CANTWELL. Mr. President, we continue to make progress on the 
Defense authorization bill. Hopefully somewhere in the Halls of 
Congress, we are also making progress on the FAA authorization bill 
and, maybe before the end of the year, getting that to a final resolve.
  I know my colleagues on both sides of the aisle are working very 
hard, but I had to come to the Senate floor at this moment to say that 
Christmas came early in the Northwest today when a major deal between 
the Boeing Company and aerospace workers, machinists, resolved what had 
been a conflict in the past on how to work together.

[[Page S8036]]

  A new relationship of working together on incentives and efficiency 
and performance has resulted in the Boeing Company making a decision to 
build the next-generation 737 MAX plane in the Pacific Northwest. That 
is great news for aerospace workers in Puget Sound. It means there is 
going to be a skill set for building fuel-efficient planes for many 
years to come. But it is a great testament to both the company and the 
workers who--a year ago you probably heard more about the NLRB issue, 
and now what you are hearing about is an agreement on a multiyear 
contract that is going to get these workers jobs in building planes 
with the next-generation technology.
  This is very big and important news not just for the Pacific 
Northwest but for the country because it means we can come together to 
resolve differences. I would hope the Senate might apply some of the 
same things because the dispute as to where these two organizations 
were about how to proceed to the future obviously had a lot of 
discussion, even here on the Senate floor, and yet now today we see 
them coming together in a huge milestone agreement that means more 
planes are going to be built, in an agreement where workers and the 
company are working together to improve performance and deliver these 
planes, which many people want because they are so fuel-efficient, on 
time.
  So for the Northwest to have this kind of boost, this shot in the 
arm, at this point in time is really important. I expect that as this 
agreement and the agreement details are seen by many people, they will 
see this really is a way forward for the Northwest to continue to be at 
the top of the aerospace game. That is important because the United 
States needs to be at the top of the aerospace game. We are facing 
tough competition from many countries such as China and Europe and 
others that are trying to lure the manufacturing base away from the 
United States.
  What we see in the Northwest is that not only do you have a company 
such as Boeing, but you have a chain of many suppliers that are also 
working to make aerospace manufacturing in the United States one of the 
key industries in which the United States is world premier.
  So I say congratulations to both the company and to the machinists 
and to Machinists International for their hard work on inking this 
deal. I hope it will bring much benefit and economic growth not just to 
Puget Sound--certainly to there--but to the rest of the country as 
well.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.


                           Amendment No. 1126

  Mr. KIRK. Mr. President, I rise in support of the Feinstein amendment 
with regard to section 1031 of this legislation. I am particularly 
worried because, unlike the authorized use of force original doctrine 
and legislation passed by the Congress, we limited the authority of the 
President and the U.S. military to those connected directly to the 
September 11 mass murder of Americans. I think, in times of emergency, 
I understand that. But the legislation would be the first congressional 
authorization to go far beyond that, to say that any ``person who . . . 
substantially supported al-Qaeda, the Taliban, or associated forces''--
undefined--`` . . . including any person who has committed a 
belligerent act'' would be allowed to be picked up by U.S. military 
authorities and held in U.S. military detention.
  While I am in favor of robust and flexible U.S. military action 
overseas, including action against American citizens waging war against 
the United States, such as Anwar Al-Awlaki, I think we all should agree 
on a special zone of protection inside the jurisdiction of the United 
States on behalf of U.S. citizens.
  I say this in support of the Feinstein amendment because I took the 
time--as we all should from time to time, serving in this body--to re-
read the Constitution of the United States yesterday. The Constitution 
says quite clearly: In the trial of all crimes--no exception--there 
shall be a jury, and the trial shall be held in the State where said 
crimes have been committed. Clearly, the Founding Fathers were talking 
about a civilian court, of which the U.S. person is brought before in 
its jurisdiction.
  They talk about treason against the United States, including war in 
the United States. The Constitution says it ``shall consist only in 
levying War against them, or in adhering to their Enemies, giving them 
Aid and Comfort.
  The following sentence is instructive:

       No person--

  ``No person,'' it says--

     shall be convicted of Treason unless on the Testimony of two 
     Witnesses to the same overt Act, or on Confession in open 
     Court.

  I would say that pretty clearly, ``open court'' is likely to be 
civilian court.
  Further, the Constitution goes on, that when a person is charged with 
treason, a felony, or other crime, that person shall be ``removed to 
the State having Jurisdiction of the Crime''--once again contemplating 
civilian, State court and not the U.S. military.
  As everyone knows, we have amended the Constitution many times. The 
fourth amendment of the Constitution is instructive here. It says:

       The right of the people to be secure in their persons, 
     houses, papers, and effects, against unreasonable searches 
     and seizures--

  Including, by the way, the seizure of the person

     shall not be violated, and no Warrants shall issue, [except] 
     upon probable cause, supported by Oath or affirmation, and 
     particularly describing the place to be searched, and the 
     persons or things to be seized.

  Now, in section 1031(b)(2), I do not see the requirement for a 
civilian judge to issue a warrant. So it appears this legislation 
directly violates the fourth amendment of the Constitution with regard 
to those rights which are inalienable, according to the Declaration of 
Independence, and should be inviolate as your birth right as an 
American citizen.

  Recall the fifth amendment, which says:

       No person--

  By the way, remember, ``no person''; there is not an exception here.

       No person shall be held to answer for a capital, or 
     otherwise infamous crime, unless on a presentment or 
     indictment--

  Hear the words--

     of a Grand Jury, except in cases arising in the land or naval 
     forces, or in the Militia, when in actual service in time of 
     War--

  Meaning there is a separate jurisdiction for U.S. citizens who are in 
the uniformed service of the United States. But unless you are in the 
service of the United States, you are one of those ``no persons'' who 
shall be answerable for a ``capital'' or ``infamous crime,'' except on 
``indictment of a Grand Jury.''
  The sixth amendment says:

       In all criminal prosecutions--

  Not some, not by exception; in all criminal prosecutions--

     the accused shall enjoy the right to a speedy and public 
     trial, by an impartial jury of the State and district wherein 
     the crime shall have been committed. . . .

  I go on to these because I regard all of these rights as inherent to 
U.S. citizens, granted to them by their birth in the United States.
  If we go on through the Constitution's amendments, we find in the 
fourteenth amendment that it says:

       No State shall make or enforce any law--

  Any law--

     which shall abridge the privileges or immunities of citizens 
     of the United States. . . .

  I realize these powers have been defined by courts. But we would 
recall that even Abraham Lincoln ex post facto lost his ability to 
suspend the writ of habeas corpus pursuant to a Supreme Court decision; 
that in the case of Hamdi v. Rumsfeld, the Court did recognize that 
under the 2001 statute, the President is authorized to detain persons 
captured while fighting U.S. forces in Afghanistan. But I will recall--
and, by the way, this included American citizens--I will recall that 
was in Afghanistan.
  Clearly, we see in the case where an American citizen has gone to a 
foreign jurisdiction, joined a terrorist organization or foreign 
military, and is waging war on the United States, they can be held as a 
detainee of the U.S. military. Why didn't this legislation say that? 
Why did it not restrict its purview to those provisions? In Padilla v. 
Hanft, the Fourth Circuit did allow the capture of a U.S. citizen, 
Padilla--by the way, arrested at O'Hare Airport, a U.S. citizen and 
held in military detention. The Fourth Circuit said because he had 
foreign training and a foreign connection that it was legal to hold 
him.

[[Page S8037]]

  But, remember, very soon thereafter the Bush administration 
surrendered this case. I think the Bush administration realized they 
were about to lose in the Supreme Court on the subject of whether the 
U.S. military could arrest and detain a U.S. citizen and to deprive 
them of their rights and subject them only to review under a petition 
of habeas corpus. I think they realized they had to kick Padilla into 
the civilian court system, and therefore they did. It is only in that 
context that we should read the Padilla decision.
  I think the bottom line is this: We funded a multihundred-billion-
dollar Department of Defense, in the words of the movie, to put men on 
that wall, that we need on that wall, to defend us against foreign 
threats, and they must do hard and difficult things, including 
sometimes to U.S. citizens, such as Anwar al-Awlaki, who are waging war 
on the United States from a terrorist base in Yemen.
  But the whole purpose of this exercise and this institution is to 
defend the rights of the United States and U.S. citizens inside their 
own country. One of the first things a person does when they join the 
U.S. military is not to swear allegiance to a President or to a foreign 
leader but actually swear allegiance to the Constitution of the United 
States and to its rights.
  What is the whole purpose of the Constitution? It is to defend our 
rights against the government because we are one of those unique 
governments that ``posits'' a limited government and which rights are 
reserved according to the 10th amendment to the States or the 
individuals; that our rights supersede the government's. So we cannot 
say for an individual, for example, in Wisconsin, who has never been 
abroad, who may or may not have committed an act or may or may not have 
one association, that suddenly the U.S. military can roll in on that 
person, seize him or her, hold them in military detention, and only 
subject review of that case by one habeas corpus petition.
  I would argue, then, that all of our rights as American citizens hang 
on the decision of the President of the United States; that if the 
President of the United States decides a person is substantially part 
of al-Qaida, the Taliban, or associated forces engaged in hostilities 
against the United States or they have committed a belligerent act or 
supported such hostilities in aid of such forces, all of their rights 
as an American citizen are now forfeited. Clearly, that is not the 
case.
  The Founding Fathers understood the power of the state run amok under 
a distant king who did not regard the rights of the individual as worth 
much. We founded a republic and then wrote a constitution to defend 
those rights. While we face a very difficult and dangerous world 
overseas and have to do difficult and dangerous things, which I 
support, we should make sure there is a place for peace and justice and 
rights inside the United States.
  So for us, in looking at this provision, the Feinstein amendment 
clearly limits the scope of this legislation in an appropriate way--
that we do the difficult things overseas. But the whole purpose of the 
Department of Defense is to defend the United States and those rights 
inside our country, but that we as U.S. citizens, especially when we 
are inside this country, have inalienable rights which cannot be 
separated from us by any executive action; that we can only be held, 
incarcerated, that we can only have our liberties taken away from us on 
indictment of a grand jury, before a civilian court, and with a 
presumption beyond a reasonable doubt by unanimous vote of that jury.
  That is the essence of who we are as Americans, and it is a historic 
decision that we would make if we allow this power to go forward. I 
think that is why Senator Paul and I were the only two Republicans to 
vote against this. That is why so many e-mails and letters that I have 
received in the last few hours support this decision.
  I understand that others have a different view. They describe the 
United States as a battlefield. I would say that is on overly harsh 
determination of how cheaply our rights can be held; that we have a 
multihundred-billion-dollar Defense Department; that we have a 
substantial and capable FBI; that we have enormous State and city and 
local police establishments, all with the capabilities to investigate 
and prosecute crimes, but under the Constitution of the United States; 
and that if we hold U.S. citizens as capable of losing their rights on 
an executive branch decision, that not beyond the shadow of a doubt but 
on a lower standard of care, that in the executive branch's view a 
person is connected to one of those things, then our rights are not 
worth very much.
  I would say the whole purpose of the Constitution is to hold our 
rights higher than the government and subject only to review by a 
civilian court. That review, as described in the Constitution of the 
United States, is far more than a habeas corpus review. The text of the 
Constitution specifically refers to grand jury indictment.
  For those who have questions, I would urge them, first, take a moment 
to reread the Constitution, that first document which, as a member of 
the U.S. military or as an elected Member of this body, we have to 
swear allegiance to, and then make up their minds. I think when they 
do, they will support the Feinstein amendment.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Tester). The Senator from Arizona.
  Mr. McCAIN. Mr. President, I must admit that I have heard some 
bizarre arguments in my time as a Member of this body in referencing 
the Constitution of the United States as a basis for the argument. Now, 
it is my understanding my friend from South Carolina--I ask unanimous 
consent to enter into a colloquy with the Senator from South Carolina.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. It is my understanding that under the Constitution, it is 
the Supreme Court of the United States that gives the interpretation of 
the Constitution as to various laws and challenges to the Constitution. 
It is their responsibility. Is that a correct assumption?
  Mr. GRAHAM. Yes, it is.
  Mr. McCAIN. So our colleague from Illinois who continues to quote 
from the Constitution of the United States fails to quote from the 
specific addressing of this issue by the U.S. Supreme Court, 
specifically the Hamdan decision. Is that correct?
  Mr. GRAHAM. That is correct.
  Mr. McCAIN. Is it not true that according to that decision, the U.S. 
Supreme Court, whom we ask to interpret the Constitution of the United 
States--they have made many interpretations over the years--says there 
is no bar to this Nation's holding one of its own citizens as an enemy 
combatant.
  Now, one would think to the casual observer that is exactly what the 
U.S. Supreme Court meant. It is fairly plain language, not really 
complicated. I am not a lawyer, but how the Senator from Illinois, 
quoting from inalienable rights, can somehow totally disregard in every 
way what the U.S. Supreme Court says--they go on to say we hold that 
``citizens who associate themselves with the military arm of the enemy 
government''--and I believe, in the view of most, they would view that 
as a member of al-Qaida, which this legislation specifically addresses. 
We hold that ``citizens who associate themselves with the military arm 
of the enemy government and with its aid, guidance and direction,'' 
which is exactly, basically, the language of our legislation, ``aid, 
guidance and direction enter this country,'' enter this country, ``bent 
on hostile acts are enemy belligerents within the meaning of the law of 
war.''

  How can anything be more clear to the Senator from Illinois? I mean, 
it is beyond belief. It is beyond belief.
  They then go on and talk about the Civil War, the U.S. Supreme Court 
does. They talk about the Civil War. They talk about a code binding the 
Union Army during the Civil War that captured rebels would be treated 
as prisoners of war. So a citizen, no less than an alien, can ``be part 
of or supporting forces hostile to the United States or coalition 
partners and engaged in an armed conflict against the United States.''
  Now, after 9/11, we declared that we were at war with al-Qaida. Is 
that correct?
  Mr. GRAHAM. Yes.
  Mr. McCAIN. So we are at war. We have American citizens who are enemy 
combatants. Yet the Senator from Illinois, in the most bizarre fashion 
that I have heard, says, therefore, they are

[[Page S8038]]

guaranteed the protections of--as he said--a trial.
  I mean, I do not get it. Maybe the Senator from South Carolina can 
explain.
  Mr. GRAHAM. I will be glad to yield to my friend from Illinois. Let 
me just try to set the stage the best I can. And I would love to have 
Senator Levin weigh in and anyone else.
  The law, as it exists today, to my good friend from Illinois, has 
long held that when an American citizen collaborates with the enemy, 
that is an act of war, not a common crime. The constitutional review 
provided by the Supreme Court in cases involving American citizens 
collaborating with the enemy has said that we view that as an act of 
war and we apply the law of war. So our Supreme Court, in the Hamdi 
case just a few years ago, upheld the ruling in the In re Quirin case, 
which went back to World War II.
  In that case, we had American citizens assisting Nazi saboteurs. The 
Supreme Court ruled that citizenship status does not prevent someone 
from being treated as part of the enemy force when they choose to join 
the enemy.
  Why is this important? My good friend from Illinois is an intel 
officer. Intelligence gathering is part of war. An enemy combatant can 
be interrogated by our military intelligence community without Miranda 
rights. They can be held for an indefinite period of time to be 
questioned about past, present, and future attacks. The Supreme Court 
has legitimized that process because the individual in question was an 
American citizen captured in Afghanistan.
  He pled to the Court: You cannot hold me as an enemy combatant 
because I am an American citizen.
  The Court said: No, there is a long history in this country of having 
American citizens who collaborate with the enemy to be held as an enemy 
combatant.
  Unfortunately, in every war we have engaged in, American citizens 
have provided aid and comfort to the enemy. In World War II we had 
American citizens assisting Nazi saboteurs.
  Mr. McCAIN. Was not one of the most famous cases a woman whose name 
was Tokyo Rose, who propagandized--she was an American citizen. She 
propagandized on behalf of the Japanese when we were in the war. 
Afterwards she was given a military trial.
  Mr. GRAHAM. Yes. The point is----
  Mr. McCAIN. Not a civilian trial, not given her Miranda rights, but 
tried by military tribunal.
  Mr. GRAHAM. Right. What we have done in the Military Commissions Act 
in 2009, civilians, American citizens cannot be tried in military 
commissions. It can only go to Federal court. But the point we are 
trying to make is it has been long held in this country that when an 
American citizen abroad or on the homeland decides to help the enemy, 
we have the right to hold them, not under a criminal theory but under 
the law of war because their effort to help the enemy, I say to my good 
friend from Illinois, is an act of war against their fellow citizens.
  This is so important. If we deny our country the ability to hold and 
interrogate an American citizen who has joined forces with al-Qaida, we 
lose the ability to find out the intelligence they may have to keep us 
safe. If the choice is that an American citizen who chooses to 
collaborate with al-Qaida must be put in the criminal justice system, 
meaning they will have criminalized the war, the Congress will have 
restricted executive branch power.
  To make it clear--please understand, I say to Senator Feinstein--the 
courts of the United States have acknowledged that the executive branch 
can hold an American citizen as an enemy combatant when they engage and 
assist the enemy. The courts of the United States recognize the power 
of the executive to do that as Commander in Chief.
  The question for us is, Do we want to be the first Congress in the 
history of the Nation to say to the executive branch that they no 
longer have that power given to them by the courts, inherent with being 
Commander in Chief, to protect us against enemies foreign and domestic.
  I argue to my colleagues, given the threats we face from homegrown 
terrorism, from al-Qaida groups and their affiliates, that now is not 
the time to change the law preventing our military intelligence 
community from holding an American citizen who is helping the enemy on 
the homeland and prevent them from gathering intelligence.
  I argue that the reason no other Congress has done this in past wars 
is because it didn't make a lot of sense. I argue that if a Senator 
came to the floor of the Senate during World War II and suggested that 
an American citizen who sided with the Nazis to sabotage American 
interests here could not be held as an enemy combatant, they would have 
been run out of town because most citizens would say anybody who helps 
the enemy--citizen or not--is a threat to our country.
  Unlike other wars, we do have due process that exists today that 
never existed before. No Nazi soldier was able to go to a Federal court 
and say: Judge, let me go. The reason I have agreed, and the courts 
have applied habeas review to enemy combatant determination, is this is 
a war without end.
  How does one become an enemy combatant? The executive branch makes 
the accusation. They have to follow the statutory criteria. This is a 
limited group of people in a limited classification. American citizen 
or not, if someone falls into this group, they can be held as an enemy 
combatant. But the executive branch has to prove to an independent 
judiciary that the case is sufficient, and under the law the judge has 
to agree with the military; we have an independent judiciary looking 
over the shoulder of the military in this war, unlike at any other 
time. So the government has to prove to a Federal judge, by a 
preponderance of the evidence, that this person is, in fact, an enemy 
combatant. If the judge disagrees, they are let go. If the judge 
agrees, we hold the enemy combatant, and they get an annual review 
process as to whether future detention is warranted. So we have robust 
due process.
  But please understand what the Feinstein amendment is about. It is 
about the Congress of the United States, the Senate of the United 
States, for the first time in American history, restricting the ability 
of the executive branch to hold an American citizen who is 
collaborating with the enemy and question them under the law of war. If 
we do that to ourselves, we will regret it. I don't want to be in the 
first Congress, in the times in which we live, to change the law to 
deny our intelligence community and the Department of Defense the 
ability to deal with American citizens who have decided on their own to 
become part of al-Qaida. The day one decides they are going to side 
with al-Qaida, they have committed an act of war against the rest of 
us, and the courts acknowledge they can be held as an enemy combatant, 
not a common criminal.
  The question for the Congress is, Do we want to undo that in the 
times in which we live? I plead with everybody in this body, get 
yourself educated about what the law is today. I ask Senator Levin, we 
have done nothing to change the law in this bill; is that correct?
  Mr. LEVIN. Not only does 1031, the overall section, not change the 
law, it incorporates it, according to the administration's own 
statement of policy on what the current law is. The Senator is right. 
There is nothing in here which in any way affects habeas corpus, nor 
should we seek to do so. Habeas corpus remains exactly as it is. We 
could not change it if we wanted to, and we don't want to.
  While the Senator asked me a question, I wish to answer a question 
with a question to him. Is it not true that for the first time, we 
provide that where there is going to be an unprivileged enemy 
belligerent who could be held in long-term detention under the law of 
war--for the first time we provide a judge and a lawyer to that person; 
is that right?
  Mr. GRAHAM. That is correct, and we have been working on that 
together for 5 years. To respond, if I may, because I think it is a 
very good discussion, does the Senator agree with me that under the law 
that exists today, in terms of the Supreme Court rulings, an American 
citizen can be held as an enemy combatant?
  Mr. LEVIN. I read this yesterday, and I will read it again now. The 
Senator is right. I don't know how anybody reading this can reach any 
other conclusion but what the Supreme

[[Page S8039]]

Court says, not because they are right or wrong but because of the 
Supreme Court: ``There is no bar to this Nation's holding one of its 
own citizens as an enemy combatant.''
  By the way, nor should there be, in my judgment.
  Mr. GRAHAM. Does the Senator agree that in past wars American 
citizens, unfortunately, have collaborated with the enemy?
  Mr. LEVIN. They have, and they have been treated as enemy combatants.
  Mr. GRAHAM. Does he agree with me that in World War II some American 
citizens agreed to assist the Nazis and were held as enemy combatants?
  Mr. LEVIN. I agree.
  Mr. GRAHAM. Does the Senator agree it is good policy to hold and 
interrogate someone who is helping al-Qaida to find out what they know?
  Mr. LEVIN. It is good policy. If they decline, under the procedures 
under our language, the person should be first interrogated for 
whatever length of time those procedures provide--by the FBI, local 
police or anybody else. They have the right to do that.
  Mr. GRAHAM. Does the Senator agree that the criminal justice system 
is not set up to gather military intelligence?
  Mr. LEVIN. Yes.
  Mr. McCAIN. To interrupt, briefly, I wonder--in the interpretation of 
the Senator from Illinois of the Constitution of the United States--if 
it is an American citizen, say, somewhere over in Pakistan, who is 
plotting and seeking to destroy American citizens, it is OK for us to 
send a predator and fire and kill that person, but according to the 
interpretation of the Senator from Illinois, if that person were 
apprehended in Charleston planning to blow up Shaw Air Force Base, then 
that person would be given his Miranda rights, how in the world does 
that fit?

  Again, this is one of the more bizarre discussions I have had in the 
20-some years I have been a Member of this body.
  Mr. GRAHAM. Under the law as it exists today, an American citizen can 
be held as an enemy combatant. The question we are debating on the 
floor--Senator Feinstein is saying that in the future an American 
citizen who is deemed to have collaborated with al-Qaida or the Taliban 
or others could no longer be held as an enemy combatant for an 
indefinite period, which means we cannot gather military intelligence 
as to what they know about past, present, and future attacks.
  I argue we would be the first Congress in history to bring about that 
result and that now would be the worst time in American history to do 
that. If we cannot hold a citizen who is suspected of assisting al-
Qaida under the law of war, the only option is to put them in the 
criminal justice system. Then we cannot hold them indefinitely, and we 
cannot ask about present, past or future attacks because now we are 
investigating a crime, nor should we be allowed to do that under 
criminal law.
  The point is that when a person assists the enemy, whether at home or 
abroad, they have committed an act of war against our citizens, and the 
Supreme Court has acknowledged that the executive branch has the power 
to hold them as an enemy combatant. The question is, Are we going to 
change that and say in the 21st century, in 2011, every American 
citizen who chooses to cooperate with al-Qaida can no longer be 
interrogated for intelligence-gathering purposes by our Department of 
Defense and our intelligence community; that they have to go into the 
criminal justice system right off the bat, where they are given a 
lawyer and are read their Miranda rights? If we do that, we are going 
to deny ourselves valuable intelligence. We would be saying to our 
citizens that we no longer treat helping al-Qaida as an act of war 
against the rest of us.
  If one suggested during World War II that someone who collaborated 
with the Nazis should be viewed as a common criminal, most Americans 
would have said: No, they turned on their fellow citizens and they are 
now part of the enemy.
  All I want to do is keep the law as it is because we need it now more 
than ever. I am sensitive to due process. There is more due process in 
this war. Every enemy combatant being held at Guantanamo Bay, captured 
in the United States, has to go before a Federal judge. The military 
has to prove their case to a Federal judge. There is an annual review 
process. That makes sense to me. What doesn't make sense to me is for 
this country and this Senate to overturn a power that makes eminent 
sense when we need it the most. It doesn't make sense to set aside a 
Supreme Court case that acknowledges that when an American citizen 
affiliates with al-Qaida, that is an act of war against the rest of us 
and to criminalize that conduct, denying us the ability to gather 
intelligence. If we go down that road, we have weakened ourselves as a 
people, without any higher purpose.
  To those American citizens thinking about helping al-Qaida, please 
know what will come your way: death, detention, prosecution. If you are 
thinking about plotting with the enemy inside our country to do the 
rest of us harm, please understand what is coming your way: the full 
force of the law.
  The law I am talking about is the law of armed conflict. You subject 
yourself to being held as an enemy of the people of the United States, 
interrogated about what you know and why you did what you did or 
planned to do, and you subject yourself to imprisonment and death. The 
reason you subject yourself to that regime is because your decision to 
turn on the rest of us and help a group of people who would destroy our 
way of life is not something we idly accept. It is not a common, 
everyday crime. It is a decision by you to commit an act of aggression 
against the rest of us.
  I hope and pray this Senate will not, for the first time in American 
history, deny our ability to interrogate and find intelligence from 
those citizens who choose to associate with the enemy on our soil, 
because if we do that, it will be a deviation from the law that has 
existed at a time when we need that law the most.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. KIRK. Mr. President, I will yield to Senator Feinstein in a 
minute. I appreciate the debate with my friends and mentors. The three 
of us who were just debating were all military officers, but we have 
different views. We are dangerously close to being similar to the House 
of Representatives, where they have face-to-face debate. I appreciate 
that.
  The law that should not be changed is the Constitution of the United 
States, and we realize the regulations of the United States have force, 
that the statutes of the United States have greater force, and the 
Supreme Court decisions have even greater force. But no document is 
above the actual words of the Constitution. I will say those words are 
our birthright as American citizens.
  The sixth amendment says you shall be secure in your person and that 
shall not be violated and no warrant shall issue except upon probable 
cause--meaning that a court has made that decision. Your first 
amendment rights say that no person--and there is no exception in the 
Constitution--shall be held to answer for capital or otherwise infamous 
crimes, unless presentment or indictment of a grand jury.
  By the way, I am talking specifically about a U.S. person inside the 
jurisdiction of the United States. Our sixth amendment right says that 
in all criminal prosecutions, the accused shall enjoy the right of a 
speedy and public trial. Our fourteenth amendment right says no State 
shall make or enforce any law which shall abridge the privileges or 
immunities of the citizens of the United States. These are, without 
question, for U.S. citizens. There is a balancing act between the 
threats we perceive. We know the threats from foreign enemies and 
terrorists. That is well known to us, especially the new generation of 
Americans who witnessed the mass murders of September 11.
  The Founding Fathers were also wrestling with another threat--the 
threat of the state, the government itself, against its own individuals 
and the abuse of power. We would forget the lesson of history, unless 
we understood that is a threat as well. We are told there will be no 
intelligence benefit if a U.S. citizen who is arrested can't be 
interrogated by Homeland Defense or FBI people. And yet, I would say, 
as a member of the intelligence community, the FBI and the Department 
of Homeland Security are part of the intelligence community and feed

[[Page S8040]]

information into the intelligence community and can be used.

  One of the key ideas behind our American government is it is not what 
we do, it is how we do it. One of the things missing in section 1031 is 
who is the decider. The decider in this case is the suspicion of being 
part of the al-Qaida, the Taliban, or committing that belligerent act, 
but we have no court making the decision. As an American, you no longer 
have a right to the civilian court system, and those rights are 
inherent to you and are your birthright as an American citizen.
  We should make sure that what we do here and now is that we 
understand your rights; that as an American citizen you can only be 
incarcerated on indictment by a grand jury, which is by a preponderance 
of evidence; and then conviction is beyond the shadow of a doubt. Under 
this language, if you are accused of being part of al-Qaida or the 
Taliban, or of committing an act, you can be held subject to only one 
habeas review on a preponderance of evidence.
  Most Americans think you can only be convicted of a crime in the 
United States beyond the shadow of a doubt by a jury of your peers. But 
if this is passed, that is no longer true. We want to make sure the 
decider always is a civilian article III court. We are talking about a 
very specific definition here inside the jurisdiction of the United 
States among American citizens.
  I agree we can kill Anwar al-Awlaki, who is making war on the United 
States from a foreign jurisdiction. But when we are inside the United 
States, the whole point of the U.S. military and our establishment is 
to defend our rights, and those rights cannot be taken away from us by 
any executive action. They can only be taken away from us by action of 
a civilian court, by a jury of our peers and by their decision beyond a 
shadow of a doubt.
  With that, I yield for the Senator from California, whose amendment I 
so strongly support.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, I want one quick moment to respond and then 
I will propound a unanimous consent request.
  We couldn't change the Constitution here if we wanted to, and nobody 
does want to. And that includes the right of habeas corpus. All the 
constitutional rights which the Senator from Illinois talked about are 
constitutional rights. They are there. They are guaranteed. They 
couldn't be changed by the Congress if we wanted to, and I hope nobody 
wants to change those rights.
  But what the Senator ignores, and what has been ignored generally 
here, is that there is another path, and the Supreme Court has approved 
this path so that if any American citizen joins a foreign army in 
attacking us, that person may be treated as an enemy combatant. That is 
not me speaking. That is the Supreme Court in Hamdi.
  There is no bar to this Nation's holding one of its own citizens as 
an enemy combatant.
  If you join an army and attack us, you can be treated as an enemy 
combatant. The Supreme Court has said so more than once.
  My unanimous consent request is the following: that the Senator from 
California be recognized first for whatever comments she wishes to 
make, then the senior Senator from Illinois be recognized to speak on 
whatever subject he wishes--on the amendment of the Senator from 
California or whatever--and then Senator Merkley's amendment be in 
order to be called up by Senator Merkley.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The Senator from California.
  Mrs. FEINSTEIN. I thank the distinguished manager of the bill, and I 
say to the distinguished senior Senator from Illinois, who is here, I 
will try to be relatively brief. But I would also say that seldom do we 
get an opportunity on the floor of the Senate to debate what is 
fundamental to this American democracy. In a sense, I am pleased this 
issue has now been aired publicly because I think we can address it 
directly.
  Senator Durbin, I also want to thank your colleague, the junior 
Senator from Illinois, Senator Kirk, for his cosponsorship of this 
amendment.
  The fact of the matter is, the original draft of this defense bill 
had this language in it:

       The authority to detain a person under this section does 
     not extend to the detention of citizens or lawful resident 
     aliens of the United States on the basis of conduct taking 
     place in the United States except to the extent permitted by 
     the Constitution of the United States.

  That was removed from the bill. Essentially, what we are trying to do 
is put back in that you cannot indefinitely detain a citizen--just a 
citizen--of the United States without trial. Due process is a basic 
right of this democracy. It is given to us because we are citizens of 
the United States. And due process requires that we not authorize 
indefinite detention of our citizens.
  Where I profoundly disagree with the very distinguished chairman and 
ranking member of the Armed Services Committee is by saying that Ex 
parte Quirin established the law for U.S. citizens in this area that 
still holds. It does not. I went to the Hamdi opinion, and I wish to 
read some of the plurality opinion as written by Justice O'Connor. This 
first quote is from page 23 of her opinion.

       As critical as the government's interest may be in 
     detaining those who actually pose an immediate threat to the 
     national security of the United States during ongoing 
     international conflict, history and common sense teach us 
     that an unchecked system of detention carries the potential 
     to become a means for oppression and abuse of others who do 
     not present that sort of threat.

  Continuing on page 24:

       We reaffirm today the fundamental nature of a citizen's 
     right to be free from involuntary confinement by his own 
     government without due process of law, and we weigh the 
     opposing governmental interests against the curtailment of 
     liberty that such confinement entails.

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

       We therefore hold that a citizen-detainee seeking to 
     challenge his classification as an enemy combatant must 
     receive notice of the factual basis for his classification, 
     and a fair opportunity to rebut the government's factual 
     assertions before a neutral decisionmaker.

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

       The government argues that our more recent jurisprudence 
     ratifies its indefinite imprisonment of a citizen within the 
     territorial jurisdiction of Federal courts. It places primary 
     reliance on Ex parte Quirin, a World War II case upholding 
     the trial by military commission of eight German saboteurs, 
     one of whom, Hans Haupt, was a U.S. citizen.

  Justice Scalia concludes:

       This case was not this Court's finest hour.

  Mr. President, the difference today is that we as a Congress are 
being asked, for the first time certainly since I have been in this 
body--and I believe since the senior Senator from Illinois has been in 
this body--to affirmatively authorize that an American citizen can be 
picked up and held indefinitely without being charged or tried. That is 
a very big deal, because in 1971 we passed a law that said you cannot 
do this. This was after the internment of Japanese-American citizens in 
World War II. It took that long, until 1971, when Richard Nixon signed 
the Non-Detention Act, and that law has never been violated.
  The Quirin case was not about whether a U.S. citizen captured during 
wartime could be held indefinitely, but rather whether such an 
individual could be held in detention pending trial by military 
commission. The recent case of an American put into military custody, 
of course, was Jose Padilla, and there was a good deal of controversy 
over the years about his case. He was ultimately transferred out of 
military custody, tried and convicted in a civilian court.

  What we are talking about here--and I am very pleased Senator Kirk 
and Senator Lee have joined us as cosponsors in this--is the right of 
our government, as specifically authorized in a law by Congress, to say 
that a citizen of the United States can be arrested and essentially 
held without trial forever.
  The hypothetical example that has been offered by the Senator from 
Arizona, the ranking member of the committee, is: Would we want someone 
who is an American--who is planning to kill our people, bomb our 
buildings--not to be held indefinitely under the laws of war? I believe 
it is a different situation when it comes to American citizens. What if 
it is an innocent

[[Page S8041]]

American we are talking about? What if it is someone who was in the 
wrong place at the wrong time? The beauty of our Constitution and our 
law is it gives every citizen the right of review--review by a court, 
and this is what the Hamdi decision is all about. The defense bill on 
the floor, as written, would take us a step backward. The bill, as 
written, would say an American citizen can be picked up, can be held 
for the length of hostilities--is that 5 years, 10 years, 15 years, 20 
years, 25 years, 30 years--without a trial. I say that is wrong. I say 
that is not the way this democracy was set up. And I also say that is 
totally unnecessary because our federal courts work well to prosecute 
terrorists. We can go back to the Shoe Bomber, as a case in point. We 
can go back to Abdulmutallab as a case in point. We can go back to the 
record of the Federal courts prosecuting over 400 terrorists since 9/
11.
  I want to thank Senator Durbin for his interest in this issue and his 
cosponsorship of this amendment. It is very much appreciated. I don't 
know whether we can win this, but I think it is very important that we 
try and I know we are getting more and more support as people learn 
more about what this bill does. I think it is very important that we 
build a record in this body, because I have no doubt this is going to 
be litigated. I hope we are successful with this amendment. I hope we 
can protect the rights of Americans.
  Mr. President, as we have occasion to look at people in Guantanamo, 
we know there are people there who were in the wrong place at the wrong 
time. If they are going to be held forever, that is a mistake, and we 
don't want the same thing to happen to American citizens in this 
country.
  This is another example of how we are over-militarizing things that 
aren't broken. As I have said previously here on the floor, I don't see 
a need for the military to go around arresting Americans. The national 
security division of the FBI now has some 10,000 people. They have 56 
field local offices with special agents who are well equipped to arrest 
terrorists and also interrogate them. Certainly the Justice Department 
is equipped to prosecute terrorists in Federal criminal court. The 
conviction rate and the long sentences achieved shows their success.
  I am hopeful we will be able to pass this amendment and change the 
bill to reflect that Americans are protected from permanent detention 
without trial. That is all we are trying to do.
  I thank the Senator from Illinois, I thank the Chair, and I yield the 
floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, let me say at the outset what an 
extraordinary job my colleague from California has done. There was a 
time in American history, before law schools, when people read the law 
and practiced the law. The Senator from California has not only read 
the law, she has written many laws, and her competence in advocating 
this important constitutional question has been proven over and over. 
So I thank her for having the determination and courage to stand up for 
her convictions against some who would be critical of anyone who 
broaches the subject.
  This is a controversial subject. We are talking about the security of 
Americans. We are talking about terrorism. We all remember a few years 
ago when our lives were interrupted--a time we will never forget--when 
terrorists attacked the United States and killed 3,000 innocent 
American people on 9/11. We came together in this Congress, Democrats 
and Republicans, and said we need to keep this country safe; that we 
never want that to happen again. So we passed new laws, suggested by 
President George W. Bush, and enacted by Democrats and Republicans in 
Congress.
  We created new agencies, such as the TSA security agency at airports 
and we empowered our intelligence branches--which Senator Feinstein has 
a particular responsibility for as chairman of the Senate Intelligence 
Committee--by giving them more people, more technology, and more 
authority, and we said to them, keep us safe.
  We said to our military: We want you to be the best in the world and 
continue to be, and we will provide the resources for that to happen. 
Then we turned, as Senator Feinstein has noted, to the Federal Bureau 
of Investigation and said: We are going to dramatically increase your 
numbers and give you the technology you need to keep us safe.
  Here we are some 10 years later, and what can we say? We can say 
thanks to the leadership of President George W. Bush and Barack Obama, 
9/11 was not repeated--and we never want it repeated.
  We can also say, with very few exceptions, in the 10 years since 9/11 
that we have done all these things consistent with America's values and 
principles. Other countries--and we see them even today--faced with 
uncertainty and insecurity throw out all of the rules of human conduct 
even to the point of killing their own people in the streets to 
maintain order. Thank God that never has occurred in the United States, 
and I pray it never will. Those of us who are elected to represent our 
States in the Senate take an oath, an oath that we are going to uphold 
and defend the Constitution with its values and principles. We 
understand that taking that oath may mean that we are accepting due 
process, and due process says a fair day in court for someone accused 
of a crime. Other countries dispense with that. They don't need a 
trial. They find someone suspected of a crime, whatever it might be, 
that person is given summary execution, and that is the end of the 
story. No questions asked.
  We don't do it that way in America. We establish standards of conduct 
and justice, and particularly as it relates to the people who live in 
America, our citizens and legal residents who are in the United States. 
That is what this debate is about.
  This is an important bill, S. 1867. It comes up every year in a 
variety of different forms, and we are lucky to have Senator Carl Levin 
and Senator John McCain who put more hours into it than we can imagine 
to write the bill to authorize the Department of Defense to do its job. 
It is the best military in the world, and their hard work makes certain 
that it stays in that position.
  But this provision they have added in this bill is a serious 
mistake--serious. It is serious enough for me to support Senator 
Feinstein in her efforts to change and remove the language. Why?
  First, we know the law enforcement officials in the United States of 
America, the Attorney General's Office, the FBI have done a good job in 
keeping America safe. They have arrested over 300 suspected terrorists 
in the United States--over 300 of them--and they have tried them in the 
criminal courts of America, on trial, in public, for the world to see 
that these people will be held to the standards of trial as an American 
citizen. Of those 300, they have successfully prosecuted over 300 
alleged terrorists, then incarcerated them in the prisons of America, 
including Marion, IL, in my home State, where they are safely and 
humanely incarcerated.
  The message to the world is: We are going to keep America safe, but 
we are going to do it by playing by the rules that make us America. Due 
process is one of those rules, and it has worked. It has worked under 
two administrations.
  Now comes this bill and a suggestion that we need to change the 
rules. The suggestion is, in this measure, that we will do something 
that has not been done in America before. Section 1031 of this bill, 
for the first time in the history of America, will authorize the 
indefinite detention of American citizens in the United States. This is 
unprecedented. In my view, as chair of the Constitution Subcommittee of 
Senate Judiciary, it raises serious constitutional concerns.
  Senator Levin and Senator McCain disagree. In an op-ed piece for the 
Washington Post, they recently wrote:

       No provision in the legislation expands the authority under 
     which detainees can be held in military custody.

  But look at the plain language of section 1031. There is no exclusion 
for U.S. citizens. So the question is, If we believe an American 
citizen is guilty or will be guilty of acts of terrorism, can we detain 
them indefinitely? Can we ignore their constitutional rights and hold 
them indefinitely, without warning them of their right to remain 
silent, without advising them of their right to counsel, without giving 
them the basic protections of our Constitution? I don't believe that 
should be the standard.

[[Page S8042]]

  I listened to Senator McCain. He makes a pretty compelling argument: 
Wait a minute. You are telling me that if you have someone in front of 
you who you think is a terrorist who could repeat 9/11, you are going 
to read their Miranda rights to them?
  Well, as an American citizen, yes, I would. I would say to Senator 
McCain the same argument would apply if that person in front of me was 
not a suspected terrorist but a suspected serial killer, a suspected 
sexual predator; we read them their Miranda rights. We believe our 
system of justice can work with those rights being read.
  Do you remember the case about 2 years ago of the person who was on 
the airplane, the Underwear Bomber, Abdulmutallab? He was coming to the 
United States to blow up that airplane and kill all the people onboard, 
and thank God he failed. He tried to ignite a bomb and his clothing 
caught on fire, and the other passengers jumped on him, subdued him, 
and he was arrested. This man, not an American citizen, was taken off 
the plane and interrogated by the Federal Bureau of Investigation. 
After he stopped talking voluntarily, they read him his Miranda rights. 
We all know them from the crime shows that we watch on TV: the right to 
remain silent, everything you say can be used against you, the right to 
retain counsel. He was read all those things, and he shut. But that 
wasn't the end of the story.
  By the next day, they were back interrogating him and they had 
contacted his parents, brought his parents to this country. He met with 
his parents and turned and said: I will cooperate. I will tell you 
everything I know. He started talking, and he didn't stop.
  At the end of the day, he was charged with terrible, serious crimes, 
brought to trial in Detroit, and pled guilty under our criminal system. 
Now, he wasn't an American citizen, but even playing by the rules for 
American citizens we successfully prosecuted this would-be bomber and 
terrorist.
  What is the message behind that? The message behind that is we will 
stand by our principles and values and still keep America safe. We will 
trust the Federal Bureau of Investigation and the Department of Justice 
to successfully prosecute suspected and alleged terrorists. We will not 
surrender our principles even as we fight terrorism every single day.

  Now, this bill changes, unfortunately, a fundamental aspect of that. 
It says if an American citizen is detained and suspected to be involved 
in terrorism with al-Qaida or other groups, they can be held 
indefinitely without being given their constitutional rights.
  I appreciate that Senator Levin and Senator McCain have said they are 
willing to consider excluding U.S. persons, but section 1031 doesn't. I 
hope they do.
  I want to address a couple statements that have been made by my 
Republican colleagues. I like them and respect them.
  I would say to Senator Graham, my colleague and friend from South 
Carolina, I listened to Senator Levin tell us privately and publicly 
over and over again: What we have here doesn't change the law. Then I 
listened to your arguments on the floor saying: Well, the law needs to 
be changed. That is why we are doing this. So I am struggling to figure 
out if Senator Levin and Senator Graham have reconciled.
  Mr. GRAHAM. May I respond?
  Mr. DURBIN. I want the Senator to respond, but I want to ask point 
blank, is there an exclusion currently in the law for U.S. citizens 
under section 1031 and whether or not under 1031 American citizens can 
be detained indefinitely?
  Mr. GRAHAM. No. And there should not be. Could I finish my thought?
  Mr. DURBIN. Of course.
  Mr. GRAHAM. Now, we are good friends, and we are going to stay that 
way. But you keep saying something, Senator Durbin, that is not true. 
The law of the land is that an American citizen can be held as an enemy 
combatant. It is the Hamdi decision, and I quote:

       There is no bar to this Nation's holding one of its own 
     citizens as an enemy combatant.

  Hamdi was an American citizen captured in Afghanistan fighting for 
the Taliban. Justice O'Connor specifically recognized that Hamdi's 
detention could last for the rest of his life because law of war 
detention can last for the duration of the relevant conflict.
  The Padilla case involves an American citizen captured in the United 
States, held for 5 years as an enemy combatant, and the Fourth Circuit 
reviewed his case and said that we could hold an American citizen as an 
enemy combatant.
  To my good friend from Illinois, throughout the history of this 
country American citizens in every conflict have, unfortunately, 
decided to side with the enemy at times. In re Quirin is a 1942-1943 
case that involved American citizens assisting German saboteurs. They 
were held under the law of war because the act of collaborating with 
the enemy was considered an act of war, not a common crime.
  So the law of the land by the courts is that an American citizen can 
be held as an enemy combatant. That has been the law for decades.
  What Senator Feinstein would do is change that. The Congress would be 
saying we cannot hold an American citizen as an American combatant.
  I do appreciate the time. Now, let me tell you why I think that is 
important.
  The Senator is a very good lawyer. Under the domestic criminal law, 
we cannot hold someone indefinitely and question them about enemy 
activity: What do you know about the enemy? What is coming? What were 
you doing? Where did you train? Under domestic criminal law, we can't 
question somebody in a way that would put them in jeopardy.
  Under military intelligence gathering we can question an enemy 
prisoner without them having a lawyer to be able to find out how to 
defend America. If we can't hold this person as an enemy combatant, the 
only way we can hold them is under domestic criminal law. When the 
interview starts and the guy says: I want my lawyer; I don't want to 
talk to you anymore--under the criminal justice model there is a very 
limited time we can hold them or question them without reading them 
their rights or giving them a lawyer.
  Under intelligence gathering our Department of Defense, the FBI, and 
the CIA can tell the individual: You are not entitled to a lawyer. You 
have to sit here and talk with us because we want to know what you know 
about present, past, and future attacks.
  If we can't hold an American citizen who has decided to collaborate 
with al-Qaida as an enemy combatant, we lose that ability to gather 
intelligence. That is the change that Senator Feinstein is proposing; 
that the law be changed by the Congress to say enemy combatant status 
can never be applied to an American citizen if they collaborate with 
al-Qaida. That would be a huge loss of intelligence gathering, it would 
be a substantial change in the law, and it would be the first time any 
Congress has ever suggested that an American citizen can collaborate 
with the enemy and not be considered a threat to the United States from 
the military point of view. I don't want to go down that road because I 
think that is a very bad choice in the times in which we live.
  So to my good friend, the law is clear we can hold an American 
citizen as an enemy combatant. The Congress is contemplating changing 
that, and I think it would be a very bad decision in the times in which 
we live to deny our ability to hold an American citizen and question 
them about what they know and why they decided to join al-Qaida.
  Mr. McCAIN. Mr. President, I ask for the regular order. What is the 
regular order?
  The PRESIDING OFFICER. The Senator from Illinois has the floor.
  Mr. GRAHAM. Simply stated, if a person decides to collaborate with 
al-Qaida in a very limited way, can we hold them? They have to be a 
member of al-Qaida or affiliated with it or be involved in a hostile 
act. But if they do those things, historically, American citizens who 
chose to side with the Nazis--in this case, al-Qaida--have been viewed 
by the rest of us not as a common criminal but as a military threat.
  Now is not the time to change that. We need that ability to question 
that person: Why did you join al-Qaida? Where did you train? What do 
you know about what is coming next? And the only way we can get that 
information is to hold them as an enemy combatant and take all the time 
we need to protect this Nation and interrogate.
  Mr. DURBIN. I would like to reclaim the floor.

[[Page S8043]]

  Mr. GRAHAM. Yes, sir. I appreciate the exchange.
  Mr. DURBIN. And would the Senator end that with a question mark?

  Mr. GRAHAM. And, was I right?
  Mr. DURBIN. I thank my colleague from South Carolina.
  What the Senator concluded with, though, I think is critical to this 
conversation. He said the only way to get to the bottom of whether 
there is an al-Qaida connection that could threaten the United States 
is military detention. Well, the Abdulmutallab case argues just the 
opposite. It was the Federal Bureau of Investigation that he sat before 
and told all of the information that the Senator has just discussed.
  Mr. GRAHAM. May I respond and say the Senator is right.
  I am an all-of-the-above guy. I believe that military and civilian 
courts should be used.
  When an American citizen is involved, does the Senator agree with me 
that military commissions are off the table?
  Mr. DURBIN. So the Senator is arguing that every President should 
have all the options, criminal courts as well as military commissions 
and tribunals?
  Mr. GRAHAM. Absolutely.
  Mr. DURBIN. Well, what is the difference, then, with what the Senator 
is standing for and what is the current situation? From my point of 
view, our Presidents--President Bush and President Obama--since 9/11, 
have used both, with more success on the criminal courts side--
dramatically more success on the criminal courts side.
  The obvious question that Senator Feinstein poses is, if the system 
isn't broken, if the system is keeping us safe, if we have successfully 
prosecuted over 300 alleged terrorists in our criminal courts and 6 in 
military commissions, why do we want to change it?
  Mr. GRAHAM. Here is the point I am trying to make.
  Mr. DURBIN. Retaining the floor.
  Mr. GRAHAM. Thank you. And this is a very good exchange.
  My view is that when we capture somebody at home and the belief is 
that they are now part of al-Qaida, that if we want to read them their 
Miranda rights and put them in Federal court, we have the ability to do 
that. This legislation doesn't prevent that from happening.
  Does it, I ask Senator Levin?
  Mr. LEVIN. It does not.
  Mr. GRAHAM. But what Senator Feinstein is proposing is that no longer 
do we have the option of holding the American citizen as an enemy 
combatant to gather intelligence, and we don't have the ability to hold 
them for a period of time to interrogate them under the law of war.
  What I would suggest to the Senator is that the information we 
receive from Guantanamo Bay detainees has been invaluable to this 
Nation's defense. To those who believe it was because of waterboarding, 
I couldn't disagree more. The chief reason we have been able to gather 
good intelligence at Guantanamo Bay is because of time.
  The detainee is being humanely treated, but there is no requirement 
under military law to let the enemy prisoner go at a certain period of 
time.
  If you take away the ability to hold an American citizen who has 
associated himself with al-Qaida to be held as an enemy combatant, you 
can no longer use the technique of interrogating him over time to find 
out what he knows about the enemy.
  You are worried about prosecuting them. I am worried about finding 
out what they know about future attacks. They are not consistent. You 
can prosecute somebody. That is part of the law. What the Senator is 
taking away from us is the ability to gather intelligence. Our criminal 
justice system is not set up to gather intelligence.
  Mr. DURBIN. I want to reclaim the floor. I know Senator McCain is 
anxious for me to conclude and there is something he is anxious to do 
quickly, but I will try to do this in appropriate time for the gravity 
of the issue before us.
  But to suggest the only way we can get information about a terrorist 
attack on the United States by al-Qaida and other sources is to turn to 
the military commissions and tribunals and not use the FBI and not use 
the Department of Justice defies logic and experience. Abdulmutallab, 
the Underwear Bomber, a member of al-Qaida, failed in his attempt to 
bring down that plane, interrogated successfully by the FBI, basically 
told them everything he knew over a period of time. It worked. To argue 
that you cannot do this defies the experience with Abdulmutallab.
  I want to say a word about the Hamdi case. I listened as Senator 
Feinstein read the Supreme Court decision. I do not think the Supreme 
Court decision stands for what was said by the Senator from South 
Carolina. I think what he said was inaccurate. I do not believe Justice 
O'Connor went to the extent of saying you can hold an American citizen 
indefinitely.
  Let me also say when it comes to the Hamdi case, Hamdi was captured 
in Afghanistan. He was captured on the battlefield in Afghanistan, not 
the United States. And Justice O'Connor, in that opinion, was very 
careful to say the Hamdi decision was limited to ``individuals who 
fought against the United States in Afghanistan as part of the 
Taliban.'' She was not talking about American citizens and their 
rights. She was talking about this specific situation.
  Now let's go to the case of Jose Padilla. Jose Padilla, some will 
argue, is a precedent for the indefinite detention of American 
citizens. But look at what happened in the case of Padilla, a U.S. 
citizen placed in military custody in the United States. The Fourth 
Circuit Court of Appeals, one of the most conservative courts in our 
Nation, upheld Padilla's military detention.
  Then, before the Supreme Court had the chance to review the Fourth 
Circuit's decision, the Bush administration transferred Padilla out of 
military custody and prosecuted him in an article III criminal court.
  I do not think that Hamdi or Padilla makes the case that has been 
made on this floor.
  I want to say I think Senator Feinstein is proper in raising this 
amendment. I think the fact is that Hamdi is a U.S. citizen, but it 
does not stand for the indefinite detention of U.S. citizens as this 
new law would allow.
  It troubles me that as good, as professional, as careful as our 
government has been to keep America safe, we now have in a Defense 
authorization bill an attempt to change some of the most fundamental, 
constitutional principles in America. This bill went through a great 
committee, our Armed Services Committee, but not through the Judiciary 
Committee which has specific subject matter jurisdiction over our 
Constitution. It did not go through the Intelligence Committee. And for 
the record, the provisions in this bill--which some have said are not 
that significant, that much of a change--are opposed by this 
administration, opposed by the Secretary of Defense, Leon Panetta, who 
received a 100-to-nothing vote of confidence from the U.S. Senate when 
he was appointed, opposed by our Director of National Intelligence, who 
says these provisions will not make America safer but make it more 
difficult to protect America, and opposed by the Federal Bureau of 
Investigation.
  I entered a letter from Director Muller in the Record yesterday, as 
well as the Department of Justice.
  You have to ask yourself, if all of these agencies of government, 
which work day in, day out, 24-7 to keep us safe, tell us not to pass 
these provisions because it does not make America safer, it jeopardizes 
our security, why are we doing it?
  Senator Feinstein has the right approach: Let us try to preserve some 
of the basic constitutional values here. I think we can. I hope my 
colleagues will take care before they vote against Feinstein. Despite 
the respect, which I share, that they have for our Armed Services 
Committee and its leadership--this is a matter of constitutional 
importance and gravity. It is important for us to take care and not to 
change our basic values in the course of debating a Defense 
authorization bill. Let's keep America safe but let's also respect the 
basic principle that American citizens are entitled to constitutional 
rights. The indefinite detention of an American citizen accused--not 
convicted, accused of terrorist activity--the indefinite detention runs 
counter to the basic principles of the Constitution we have sworn to 
uphold.
  I yield the floor.
  The PRESIDING OFFICER (Mrs. Hagan). The Senator from Michigan.

[[Page S8044]]

  Mr. LEVIN. I wonder if the Senator will yield for a question. Would 
the Senator agree that the majority opinion in Hamdi said the 
following:

       There is no bar to this Nation's holding one of its own 
     citizens as an enemy combatant.

  Mr. DURBIN. I would respond by saying Justice O'Connor in that 
decision said:

       [A]s critical as the Government's interest may be in 
     detaining those who actually pose an immediate threat to the 
     national security of the United States during ongoing 
     international conflict, history and common sense teach us 
     that an unchecked system of detention carries the potential 
     to become a means for oppression and abuse of others who do 
     not present that sort of threat. . . .
       We therefore hold that a citizen-detainee, seeking to 
     challenge his classification as enemy combatant, must receive 
     notification of the factual basis for his classification, and 
     a fair opportunity to rebut the Government's factual 
     assertions before a neutral decisionmaker.

  Mr. LEVIN. Would the Senator agree that specifically referred to 
there is that a citizen being held as an enemy combatant is--excuse me. 
Would the Senator agree that what he read refers to the exact statement 
of the Justice that a citizen who is held as an enemy combatant is 
entitled to certain rights? Would the Senator agree that that, by its 
own terms, says that a citizen can be held as an enemy combatant?
  Mr. DURBIN. In the particular case of Hamdi, captured in Afghanistan 
as part of the Taliban.
  Mr. LEVIN. She did not say that. She said ``a citizen.'' I know what 
the facts of the case are. She did not limit it to the facts of the 
case.
  Mr. DURBIN. I am sorry but she did. The quote:

       . . . individuals who fought against the United States in 
     Afghanistan as part of the Taliban.

  Mr. LEVIN. She did not limit it to that. She described the facts of 
that case.
  Mr. DURBIN. She limits it to that case. If I could make one response 
and then I will give the floor to the Senator. This is clearly an 
important constitutional question and one where there is real 
disagreement among the Members on the floor. I think it is one that 
frankly we should not be taking up in a Defense authorization bill but 
ought to be considered in a much broader context because it engages us 
at many levels in terms of constitutional protections.
  Mr. LEVIN. I agree with the Senator that Justice O'Connor said what 
the Senator said she said. Would the Senator agree with me that Justice 
O'Connor said:

       There is no bar to this Nation's holding one of its own 
     citizens as an enemy combatant.

  Would the Senator agree that she said that?
  Mr. DURBIN. As it related to Hamdi captured in Afghanistan.
  Mr. LEVIN. Would the Senator agree she said that, however?
  Mr. DURBIN. As it related to Hamdi, of course.
  Mr. LEVIN. I am giving the Senator an exact quote. I know the facts 
of the case.
  Mr. DURBIN. I can read the whole paragraph rather than the sentence.
  Mr. LEVIN. You already have. Given the facts of the case. I 
understand the facts of the case, that it was somebody captured in 
Afghanistan. My question is, of the Senator: Would he agree that 
Justice O'Connor said--she is talking about this case, of course----
  Mr. DURBIN. Yes.
  Mr. LEVIN. ``There is no bar to this Nation holding one of its own 
citizens''?
  Mr. DURBIN. Captured on the field of battle in Afghanistan.
  Mr. LEVIN. Would the Senator agree that the Justice said the 
following, that a citizen, no less than an alien, can be ``part of or 
supporting forces hostile to the United States or coalition partners'' 
and ``engaged in an armed conflict against the United States,'' and 
would pose the same threat of returning to the front during the ongoing 
conflict? Would the Senator agree that she said that?
  Mr. DURBIN. Of course.
  Mr. LEVIN. Would the Senator agree that she quoted from the Quirin 
case, in which an American citizen was captured on Long Island?
  Mr. DURBIN. She did make reference to the Quirin case.
  Mr. LEVIN. Did she cite that with approval?
  Mr. DURBIN. I would say there was some reservation in citing it. I 
say to the Senator, our difficulty and disagreement is the fact we are 
dealing with a specific individual captured on the field of battle in 
Afghanistan with the Taliban.
  Mr. LEVIN. I understand.
  Mr. DURBIN. We are not talking about American citizens being arrested 
and detained within the United States and being held indefinitely 
without constitutional rights.
  Mr. LEVIN. My question, though--my question is: Did Justice O'Connor 
say that, in Quirin, that one of the detainees alleged that he was a 
naturalized United States citizen, we held that--these are her exact 
words:

       Citizens who associate themselves with the military arm of 
     the enemy government, and with its aid, guidance and 
     direction enter this country bent on hostile acts, are enemy 
     belligerents within the meaning of . . . the law of war.

  Did she say that?
  Mr. DURBIN. I can tell the Senator there were references in there to 
the case, but the Supreme Court has never ruled on the specific matter 
of law which the Senator continues to read. Until it rules, we will 
make the decision in this Department of Defense authorization bill, and 
it is not an affirmation of current law because there has been no 
ruling.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Isn't it true that Justice O'Connor was specifically 
referring to a case of a person who was captured on Long Island? Last I 
checked, Long Island was part--albeit sometimes regrettably--part of 
the United States of America.
  Mr. LEVIN. She is quoting with approval from the Quirin case in which 
one of the detainees was----
  Mr. McCAIN. Captured in the United States of America.
  Those are the facts of the case.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. McCAIN. Madam President, I am afraid we have to move to the 
amendment of Senator Merkley, who has been very patient.
  Mr. LEVIN. According to a unanimous consent agreement which was 
entered into----
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. I understand Senator Merkley was going to be recognized 
next to offer his amendment. That was according to the unanimous 
consent agreement. I understand the Senator from New Hampshire, I don't 
know for how long, needed to make a unanimous consent request. Am I 
correct? No? I am incorrect.
  According to the existing unanimous consent agreement, which was 
entered into----
  Mr. McCAIN. Can I ask the indulgence----
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Could I ask the indulgence of my friend from Oregon, that 
the Senator from South Carolina be allowed 2 minutes, and the Senator 
from New Hampshire be allowed 5 minutes? Would that be all right with 
the Senator from Oregon?
  Mr. MERKLEY. Yes.
  Mr. McCAIN. I thank him for his courtesy too. I say to the Senator 
from Illinois, this is an important debate and discussion. I appreciate 
his presentation. I think a lot of people are getting a lot of good 
information, on what is a very complex and very central issue. I thank 
the Senator from Illinois.
  I yield.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM. Please understand what you are about to do if you pass 
the Feinstein amendment. You will be saying as a Congress, for the 
first time in American history, an American citizen who allies himself 
with an enemy force can no longer be held as an enemy combatant. The In 
Re Quirin decision was about American citizens aiding Nazi saboteurs, 
and the Supreme Court held then that they could be held as enemy 
combatants. So as much respect as I have for Senator Durbin, it has 
been the law of the United States for decades that an American citizen 
on our soil who collaborates with the enemy has committed an act of war 
and will be held under the law of war,

[[Page S8045]]

not domestic criminal law. That is the law back then. That is the law 
now.
  Hamdi said that an American citizen--a noncitizen has a habeas right 
under law of war detention because this is a war without end. The 
holding of that case was not that you cannot hold an American citizen, 
it is that you have a habeas right to go to a Federal judge and the 
Federal judge will determine whether the military has made a proper 
case. It has nothing to do with an enemy combatant being held as an 
American citizen. What this amendment would do is it would bar the 
United States in the future from holding an American citizen who 
decides to associate with al-Qaida.
  In World War II it was perfectly proper to hold an American citizen 
as an enemy combatant who helped the Nazis. But we believe, somehow, in 
2011, that is no longer fair. That would be wrong. My God, what are we 
doing in 2011? Do you not think al-Qaida is trying to recruit people 
here at home? Is the homeland the battlefield? You better believe it is 
the battlefield.

  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. GRAHAM. Madam President, I ask unanimous consent for 1 more 
minute.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GRAHAM. That is the point. Why would you say that if you are in 
Afghanistan, we can blow you up, put you in jail forever, but if you 
make it here, all of a sudden we cannot even talk to you about being 
part of al-Qaida. What a perverse outcome, to say if you make it to 
America, you are home free; you cannot be interrogated by our military 
or our CIA; you get a lawyer. And that is the end of the discussion. 
That is what you would be doing. That is crazy. No Congress has ever 
decided to do that in other wars. If we do that here, we are changing 
the law in a way that makes us less safe. That is not going to be on my 
resume.
  It is not unfair to make an American citizen account for the fact 
that they decided to help al-Qaida to kill us all and hold them as long 
as it takes to find intelligence about what may be coming next. And 
when they say ``I want my lawyer,'' you tell them ``Shut up. You don't 
get a lawyer.''
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. GRAHAM. ``You are an enemy combatant, and we are going to talk to 
you about why you joined al-Qaida.''
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Ms. AYOTTE. Madam President, I also rise in opposition to the 
amendment offered by Senator Feinstein, and I certainly appreciate the 
comments of my colleague from South Carolina. It would lead to an 
absurd result that if we were in a situation where an American citizen 
became a member of al-Qaida and from within our country attacked 
Americans and we could not gather the maximum amount of information 
from them to make sure we could prevent future attacks against our 
country--that is what is at issue here.
  I would like to point out a couple of issues that have not been 
addressed with respect to Senator Feinstein's amendment.
  If you look at the language of that amendment, she says that the 
authority described in this section for the Armed Forces of the United 
States to detain a person does not include the authority to detain a 
citizen of the United States without trial until the end of 
hostilities. I think this provision is going to create some real 
problems for the executive branch. If I were they, I would be in here 
raising these issues because it does not distinguish--the language--
between an American citizen who is captured overseas versus an American 
citizen captured in the United States of America.
  Let's use the example of Anwar al-Awlaki. Mr. al-Awlaki, a member of 
al-Qaida, was actually killed by us overseas. So it would lead to the 
absurd result that we could not detain him to gather intelligence, but 
we believe that we are authorized--by the way, I agreed with the 
administration taking that step to take out Mr. al-Awlaki, who was a 
great danger to our country overseas. So the language as written would 
lead to that absurd result that would tie the administration's hands, 
that they can actually kill these individuals, but they can't detain 
them under military custody and interrogate them to make sure we can 
find out what they do know and what other attacks are being planned 
against the United States of America.
  Also with respect to the language in this amendment, the language 
itself is a defense lawyer's dream. You can't hold a U.S. citizen until 
the end of hostilities. Well, how long can you hold them? I mean, it is 
not clear. There is no language in that. This is going to be litigated 
to heaven, and this is an area where our intelligence professionals 
need clarity. This is going to create more issues for the executive 
branch in an area that needs clarity and where there needs to be some 
identified rules and they have to be focused on gathering intelligence 
to protect Americans.
  Senator Durbin has cited the Abdulmutallab case on numerous occasions 
as a way--as a great case as an example of how we can gather 
intelligence from enemy combatants to protect America. Let's review the 
facts of that case again. Fifty minutes into the interrogation, he was 
told: You have the right to remain silent. He exercised that right 
because he was given Miranda warnings, and it was only 5 weeks later 
that we were actually able to get through the Miranda warnings after we 
went to his parents. Is that the type of system we want? What happened 
in that 5 weeks? What did we lose in terms of information that could 
have protected America?
  If we can't hold an American citizen who has chosen to be a member of 
al-Qaida and has participated in a belligerent act against our country 
to ask them what other attacks they are planning and whom they are 
working with, how are we going to get information to make sure that--
God forbid--we can prevent another 9/11 on our soil, because that is 
why they want to come to the United States of America. Also, how do we 
deal with this issue of homegrown radicals?
  Unfortunately, this amendment, in my view, is going to be a situation 
where we are opening the welcome mat. If you get to America and you can 
recruit one of our citizens to be a member of al-Qaida, then you don't 
have to worry about them being held in military custody. You don't have 
to worry about us using our maximum tools to gather intelligence to 
protect Americans.
  I think this amendment is very misguided. I again would point out 
that the administration should be concerned about the language in this 
amendment. It does not distinguish between an American citizen who is 
captured on our soil who is trying to attack us and one overseas. But 
either way, if an American citizen has joined al-Qaida and is trying to 
kill us from within our own country, they have become part of our enemy 
and are at war with us.
  The PRESIDING OFFICER. The Senator's time has expired.
  Ms. AYOTTE. Thank you, Madam President.
  I urge my colleagues to oppose the Feinstein amendment.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. I believe it is now in order for Senator Merkley to offer 
amendment No. 1257, as amended, with the amendment at the desk. The 
amendment at the desk has four words added to the printed amendment, 
and those words are ``NATO and coalition allies''; is that correct?
  The PRESIDING OFFICER. That is correct.
  Mr. LEVIN. I thank the Presiding Officer.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.


                    Amendment No. 1257, as Modified

  Mr. MERKLEY. Madam President, I call up amendment No. 1257, as 
modified, under the unanimous consent agreement and rise to speak to 
it.
  The PRESIDING OFFICER. Under the previous order, the amendment No. 
1257, as modified, is now the pending question.
  The amendment (No. 1257) as modified, is as follows:

       On page 484, strike line 22 through 24 and insert the 
     following:
       (c) Transition Plan.--The President shall devise a plan 
     based on inputs from military commanders, NATO and Coalition 
     allies, the diplomatic missions in the region, and 
     appropriate members of the Cabinet, along with the 
     consultation of Congress, for expediting the drawdown of 
     United States combat troops in Afghanistan and accelerating

[[Page S8046]]

     the transfer of security authority to Afghan authorities.
       (d) Submittal to Congress.--The President shall include the 
     most current set of benchmarks established pursuant to 
     subsection (b) and the plan pursuant to subsection (c) with 
     each report on progress.

  Mr. MERKLEY. Madam President, this amendment requires the President 
of the United States to develop a plan to expedite the reduction of 
U.S. combat troops in Afghanistan and to accelerate the transfer of 
responsibility for military and security operations to the Government 
of Afghanistan. Before I speak to some of the details, I want to thank 
the original cosponsors who have worked hard on this amendment: Senator 
Mike Lee, Senator Tom Udall of New Mexico, Senator Rand Paul, and 
Senator Sherrod Brown.
  The United States went to Afghanistan with two main goals that were 
laid out by President Bush: to destroy al-Qaida training camps and to 
hunt down those responsible for 9/11. Our very capable American troops 
and their NATO partners have aggressively pursued these objectives. 
There are very few al-Qaida operating in Afghanistan. Secretary of 
Defense Leon Panetta said in June 2010 that there were at most only 50 
to 100 al-Qaida members in Afghanistan. Afghanistan is no longer and 
has not been for some time a central arena for al-Qaida activity.
  American forces have also effectively pursued the second objective, 
which is capturing or killing those who attacked America on 9/11. In 
recent years, America has captured or killed two dozen high-level al-
Qaida operatives, including Khalid Shaikh Mohammed, the alleged 
operational mastermind of the September 11 attacks, who was captured in 
a raid on a house in the Pakistani garrison city of Rawalpindi near the 
capital, Islamabad; Ramzi bin al-Shibh, described as a key facilitator 
of the September 11 attacks; Sheikh Sa'id Masri, an Egyptian believed 
to have acted as the operational leader of al-Qaida, who was killed in 
a U.S. drone strike. Most importantly, our exceptional intelligence 
teams and armed services have tracked down and killed Osama bin Laden, 
the founder and head of al-Qaida.
  Citizens may fairly ask--and they do ask--given that we have 
successfully pursued our original two missions, isn't it time to bring 
our sons and daughters home? Our citizens remind us that the United 
States has been at war in Afghanistan for over 10 years, the longest 
war in American history. Our citizens recognize that the war in 
Afghanistan has come at a terrible price. More than 1,200 Americans 
have died from snipers, from improvised explosive devices, and other 
deadly weapons of war. More than 6,700 Americans have been wounded by 
those same weapons. Thousands of our soldiers have suffered from--and 
will suffer for years, decades to come--traumatic brain injuries and 
post-traumatic stress disorder. Our soldiers have paid a huge price. 
Their families have paid a huge price.
  In addition, the war in Afghanistan has consumed and is consuming an 
enormous share of our national resources. According to the 
Congressional Research Service, by the end of this year--just over a 
month from now--we will have spent the better part of $\1/2\ trillion 
or approximately $444 billion. In 2011 alone, we will spend about $120 
billion.
  So what is the answer to our citizens who ask, given our success in 
destroying al-Qaida training camps and given our success in pursuing 
those responsible for 9/11, why we haven't brought our troops and our 
tax dollars home. The official answer is that America has expanded its 
mission in Afghanistan from the narrow two original objectives of 
destroying al-Qaida and hunting down those responsible for 9/11 to the 
broad mission of nation building.
  Destroying al-Qaida--our original mission--and building a modern 
nation state where one has never existed are two entirely different 
things. The expanded mission of nation building in Afghanistan goes way 
beyond those original two military objectives. This expanded nation-
building mission involves creating a strong central government. It 
involves creating an election process for a functioning democracy. It 
involves building infrastructure--roads and bridges and schools. It 
involves a major mission to create a sizable national police force and 
a sizable and effective national army.
  We have spent a lot on this mission, but the success is limited. Over 
10 years, as I mentioned, we have spent $444 billion. Now, that is in a 
nation that had a prewar gross domestic product, or economy, of about 
$10 billion a year. So we have spent an amount equal to 44 times the 
economy of Afghanistan. One would think the result is we would have 
rebuilt the infrastructure of Afghanistan 10 times over or 20 times 
over. But the reality is there is very little to show for this nation-
building mission. Why is that the case? Most simply, this nation-
building mission is systematically stymied by multiple forces. One is 
high illiteracy.

  On my recent trip to Afghanistan, I was told that among those 
recruited for the national police, the literacy rate at a first grade 
level is only about 16 percent--first grade level, 16 percent. The goal 
is to be able to raise that literacy rate so that soldiers can read the 
serial numbers on their rifles. That is a very different world from the 
world we live in.
  The second huge factor is vast corruption. Just after my first trip 
to Afghanistan, the newspapers were full of stories about the family 
members and the associates of the President of Afghanistan building 
massive mansions in Dubai. Well, sending our money to Afghanistan so 
the elite can send it to Dubai to build mansions does not serve our 
national security.
  The efforts in nation building are stymied by deeply felt, ancient 
tribal and ethnic divisions. Moreover, there is a strong national 
aversion to the very mission of building a strong central government. I 
had an interesting experience where I met with six Pashtun tribal 
leaders in Kabul, the capital. They came in to share their stories and 
each one of them said that some form of the government you are trying 
to build is an affliction to our people. Please do not build a stronger 
government that exploits and afflicts our people. I said to them, help 
me understand this, because building a government means a force that 
can help with education, that can help with health care, that can help 
build transportation infrastructure, that can help provide security for 
businesses to prosper. They spoke to me and said--one of them summed it 
up and said, Senator, you don't understand. All of the government 
positions here are sold. The people who buy them do not buy them to 
serve our people. They buy them to exploit our people. And when you 
build a strong central government, which we oppose, the exploitation 
increases.
  So this nation-building mission is systematically stymied by high 
illiteracy, vast corruption, extensive and deep tribal and ethnic 
divisions, and a historic national aversion to a strong central 
government.
  We have been in Afghanistan for more than 10 years. It is time to 
change course. Our President recognizes this. He has worked out an 
agreement with the NATO partners to remove the remaining combat troops 
by the end of 2014. That is just over 3 years from now. But what 
happens during this next 3 years? This amendment says: Mr. President, 
during these next 3 years, seize the opportunity to diminish the combat 
role of American soldiers and increase the responsibility placed with 
the Afghanistan Government and the Afghanistan forces. Seize that 
opportunity.
  I say to my colleagues today, this is incredibly important for our 
success in transferring responsibility. If we do not provide the 
opportunity and the necessity for the Afghanistan institutions to take 
responsibility for their own security, they will not be prepared to 
exercise that responsibility down the road.
  The United States is facing a global terrorist threat. We will be 
well served by using U.S. troops and resources in a counterterrorism 
strategy against terrorist forces wherever in the world they may locate 
and train. That strategy was highlighted by the pursuit of Osama bin 
Laden in Pakistan or more recently our successful pursuit of Anwar 
Awlaki in Yemen. Our intelligence and our military, the best in the 
world, have proven without a doubt that they excel at this strategy. 
Thus, it makes sense to expedite the reduction of U.S. combat troops in 
Afghanistan and accelerate the responsibility for military and security 
operations to the Government of Afghanistan. That is what this 
amendment does.
  The amendment specifically requires the President to prepare a plan 
for the

[[Page S8047]]

expedited reduction of troops and accelerate transfer responsibility 
based on inputs from military commanders, from NATO and coalition 
allies, from diplomatic missions in the region, from appropriate 
members of the Cabinet, and from consultation with Congress. What this 
amendment does not do is it does not limit our ability to identify an 
attack by al-Qaida or terrorist forces wherever they may be in the 
world. It does not limit our ability to destroy al-Qaida or associated 
terrorist training camps wherever they may be, wherever they are in the 
world. It does not restrict funding for supplies and equipment needed 
by our troops deployed in the field.
  If our national security is well served by taking the fight to al-
Qaida wherever they are, if our nation-building strategy in Afghanistan 
is confounded by illiteracy and corruption and cultural opposition and 
tribal and ethnic conflicts, if our national resources are needed in 
that global antiterrorism strategy and are needed as well for nation 
building here at home, if our men and women have suffered enough on 
Afghan soil, then we should encourage our President to seize every 
opportunity over these next 3 years to reduce our forces in Afghanistan 
and to transfer security responsibilities to the Afghan Government.
  That is what this amendment does, and I encourage every colleague to 
support it.
  Thank you, Madam President. I yield the floor and note the absence of 
a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant editor of the Daily Digest proceeded to call the roll.
  Mr. McCAIN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. Madam President, I oppose this amendment for one simple 
reason. It requires the President to submit a plan to Congress for an 
accelerated drawdown from Afghanistan--an accelerated withdrawal; not 
just the withdrawal that is already planned, not the withdrawal that 
has already been accelerated on several occasions, but a new 
accelerated drawdown.
  The President is supposed to submit a plan to Congress for an 
accelerated drawdown from Afghanistan. Does that mean the Congress of 
the United States could see a plan for an accelerated withdrawal from 
Afghanistan? Is it required that it be implemented by Congress or is it 
a nice informational, notional kind of thing: Here is a plan. Hey, 
let's get together. I have a plan. And the President's drawdown plan, 
our senior military commanders have stated, is already--already--more 
accelerated than they are comfortable with.
  First of all, I don't get the point of the Senator's amendment, which 
is to submit a plan. It doesn't require that the plan be acted on, just 
a plan. I can submit a plan for him if it is plans he is interested in. 
But the fact is we are accelerating our withdrawal from Afghanistan at 
great risk, as our military commanders have testified--much greater 
risk. So I guess another accelerated plan would obviously have the 
result of even greater risk to the men and women in the military.

  I understand the opposition of the Senator from Oregon to the war. 
That is fine. I respect that. But an amendment that a plan is to be 
submitted without any requirement that it be implemented--a plan which 
would already accelerate more what has already been accelerated--I 
guess is some kind of statement.
  The plan as required by this amendment would be based on inputs from 
our military commanders. I can tell the Senator from Oregon what our 
military commanders in Afghanistan have said in testimony before the 
Senate Armed Services Committee, which is that more acceleration would 
mean greater risk. The acceleration that is already taking place means 
greater risk. But the Senator from Oregon wants a more accelerated 
plan, I guess.
  Then-chairman of the Joint Chiefs of Staff, ADM Mike Mullen, 
testified before the House Armed Services Committee on June 23--this is 
the Chairman of the Joint Chiefs of Staff--that the President's 
drawdown plan would be--that is the present plan, not an accelerated 
plan such as the amendment proposes--``more aggressive and incur more 
risks than I was originally prepared to accept.''
  I wonder if the Senator from Oregon heard that. The present plan is 
``more aggressive and would incur more risks'' than the Chairman of the 
Joint Chiefs of Staff would have been prepared to accept. So with this 
amendment, we accelerate even more.
  On the same day, in testimony before the Senate Select Committee on 
Intelligence, GEN David Petraeus stated that no military commander 
recommended what the President ultimately decided. That is the present 
plan.
  Their concerns were well grounded. Our commanders had wanted to keep 
the remaining surge forces in Afghanistan until the conclusion of next 
year's fighting season, which roughly occurs with the onset of the 
colder months. That was their recommendation to the President. So now 
the President shall devise a plan based on inputs from military 
commanders. I can tell the Senator from Oregon what the input from the 
military commanders is. It is the same input he got with the first 
accelerated withdrawal. All we have to do is pick up the phone and ask 
them. We don't have to have an amendment. That was their recommendation 
to the President. However, the President chose to disregard that advice 
and announce that all U.S. forces would be withdrawn from Afghanistan 
by the end of next summer. That guarantees that just as the fighting 
season next year is at its peak, U.S. surge forces will be leaving 
Afghanistan. In my view, that is a huge and unnecessary risk to our 
mission. But the decision has been made. I think there will be great 
long-term consequences to it.
  A story was related to me recently by a former member of the previous 
administration, high ranking, in a meeting with one of the highest 
ranking members of the Government of Pakistan. He said to this high-
ranking government official: What do you think the chances for peace 
with the Taliban are? That individual laughed and said, Why should they 
make peace? You are leaving.
  Those are fundamental facts. The primary reason for maintaining all 
of our surge forces in Afghanistan through next year's fighting season 
is because of another time the President chose to disregard the advice 
of his military commanders. It is well known that our military leaders 
had wanted a surge to be 40,000 U.S. troops, but the President only 
gave them 33,000. So rather than being able to prioritize the south and 
east of Afghanistan at the same time, as they had planned, our 
commanders had to focus first in the south, which they did last year 
and this year, and then concentrate on eastern Afghanistan next year, 
all because they didn't have enough troops.
  That is not my opinion; that is the sworn testimony of military 
leaders before the Senate Armed Services Committee.
  The President's decision made the war longer and now our commanders 
will not have the forces they said they wanted and needed to finish the 
job in eastern Afghanistan.
  Before we mandate a plan to further accelerate the drawdown of U.S. 
forces from Afghanistan, I suggest we review the facts and consider the 
potential consequences of the overly accelerated drawdown we already 
have.
  Before we base such a plan on the views of our military commanders, I 
certainly recommend that my colleagues travel to Afghanistan and speak 
with those commanders who can explain far better than I can why further 
accelerating our drawdown is reckless and wrong.
  So I do not get the amendment. I do not understand why the title of 
it is ``To require a plan for the expedited transition of 
responsibility for military and security operations in Afghanistan to 
the Government of Afghanistan.''
  As I said, in case the Senator from Oregon missed it, we have already 
accelerated, and in the view of our military commanders, unanimously, 
it is a far greater risk.
  It says:

       The President shall devise a plan based on inputs from 
     military commanders, NATO and Coalition allies, the 
     diplomatic missions in the region, and appropriate members of 
     the Cabinet, along with the consultation of Congress, for 
     expediting the drawdown of United States combat troops in 
     Afghanistan and accelerating the transfer of security 
     authority. . . .


[[Page S8048]]


  Apparently, the Senator from Oregon is not satisfied with the 
President's already accelerated plan for withdrawal from Afghanistan 
beginning in the fall of--well, it has already begun--but the serious 
withdrawal in the fall, September 2012.
  I can assure--I can assure--the Senator from Oregon that if our 
withdrawal, which I greatly fear now, will have long-term consequences, 
a further accelerated withdrawal will absolutely guarantee that 
Afghanistan becomes a cockpit--a cockpit--of competing interests from 
Iran, from India, from Pakistan, and from other countries in the 
region. I think the people of Afghanistan deserve better.
  So I will, obviously, oppose this amendment.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LEE. Madam President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEE. Madam President, I ask unanimous consent that the current 
amendment be set aside so I might speak briefly regarding amendment No. 
1126.
  Mr. LEVIN. Madam President, reserving the right to object, I wonder 
if the Senator would just seek the right to--the Senator has a right to 
speak on another amendment without setting aside this amendment. So I 
ask that the Senator not set aside the pending amendment but just 
simply speak on whatever amendment he wishes to speak.
  Mr. LEE. Wonderful. The second request is withdrawn.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 1126

  Mr. LEE. Madam President, I rise today to speak in support of 
amendment No. 1126 to the current pending legislation. The purpose of 
this amendment is to make clear that the United States shall not detain 
for an indefinite period U.S. citizens in military custody.
  I understand this has been the subject of a lot of debate. I also 
understand this would be a break not only with the current pending 
legislation but also with current practice, based on Supreme Court 
precedent and lower court precedent that some have interpreted to deem 
this a constitutionally permissible practice.
  It has often been suggested by several of my colleagues that it is 
the province of the Supreme Court to interpret the Constitution, and 
that statement is absolutely correct as far as it goes. But it is not 
the beginning of the analysis and the end of the analysis.
  We, as Senators, independently have an obligation, consistent with 
and required by our oath to the Constitution--which I took just a few 
months ago just a few feet from where I stand now--to uphold the 
Constitution of the United States. That means doing more than simply 
the full extent of whatever the courts will tolerate.
  In this instance, what we are talking about is the right of the U.S. 
military to detain indefinitely, without trial, a U.S. citizen, simply 
on the basis that person has been deemed an enemy combatant.
  Now, there is a real slippery slope problem here, and it is the very 
kind of slippery slope problem for which we have protections such as 
the fifth amendment and the sixth amendment. You see, under the fifth 
amendment, a person cannot be held for an infamous crime unless they 
have been subjected to a process whereby a grand jury indictment has 
been issued. A person cannot be held and tried for a crime without 
having counsel made available to them and without the opportunity for a 
speedy trial in front of a jury of the peers of the accused.
  We can scarcely afford as Americans to surrender these fundamental 
civil liberties for which wars have been fought, for which the founding 
era, the founding generation fought so nobly against our mother country 
to establish and thereafter to protect. We have to support these 
liberties. I think at a bare minimum, that means we will not allow U.S. 
military personnel to arrest and indefinitely detain U.S. citizens, 
regardless of what label we happen to apply to them. These people, as 
U.S. citizens, are entitled to a grand jury indictment to the extent 
they are being held for an infamous crime. They are also entitled to a 
jury trial in front of their peers and to counsel.
  We cannot, for the sake of convenience, surrender these important 
liberties. I am not willing to do that. That is why I support this 
amendment, amendment No. 1126, to the pending legislation. I encourage 
each of my colleagues to do so.
  I want to point out that yesterday I voted against what became known 
as the Udall amendment. I did so in part because I do not believe that 
fixed the problem I am talking about. The Udall amendment did not even 
purport to address current practice or the policies as they have been 
established in recent years: that this kind of detention is in some 
circumstances acceptable. It called for a study and it eliminated 
certain provisions in the proposed legislation, but it did not fix the 
underlying problem.
  This Feinstein amendment, amendment No. 1126, does fix that. That is 
why I support it. I encourage each of my colleagues to do the same.
  When we take an oath to the U.S. Constitution--to uphold it, to 
support it, to protect it, to defend it--we are doing more than simply 
agreeing to do whatever the courts will tolerate. We are taking an oath 
to the principles embodied in this 224-year-old document that has 
fostered the greatest civilization the world has ever known.
  Thank you, Madam President.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LEVIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Whitehouse). Without objection, it is so 
ordered.


                    Amendment No. 1257, as Modified

  Mr. LEVIN. Mr. President, let me just ask Senator Merkley a question, 
and then I think we can proceed from there.
  It is my understanding that the original language in this and related 
amendments had the dates 2012 and 2014 in them, and it could have been 
interpreted that the Senator was trying to press those dates forward 
rather than address--as I interpret the Senator's current amendment--
the pace of reductions after consultation with the people the Senator 
has identified. Am I correct?
  Mr. MERKLEY. The Senator is correct. The amendment is designed to 
encourage, to increase the pace of the reduction of U.S. forces and the 
transfer of responsibility to Afghanistan's forces.
  Mr. LEVIN. Mr. President, unless there is someone else here who wants 
to speak, I yield the floor.
  Mr. McCAIN. Mr. President, I urge adoption of the amendment.
  The PRESIDING OFFICER. The question is on agreeing to the amendment, 
as modified.
  The amendment (No. 1257), as modified, was agreed to.
  Mr. LEVIN. Mr. President, I move to reconsider the vote.
  Mr. MERKLEY. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. LEVIN. Mr. President, I understand the Senator from New 
Hampshire----
  Mr. McCAIN. Mr. President, the Senator from New Hampshire had 
intended to talk about her amendment and withdraw it, and she may be 
coming. I have not had a chance to notify her, so there may be a 
couple-minute delay.
  So I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. McCAIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. Mr. President, in an exchange I had on the floor, I 
mentioned the people on wonderful Long Island. I made a joke. I am 
sorry there is at least one of my colleagues who cannot take a joke. So 
I apologize if I offended him and hope that someday he will have a 
sense of humor.
  I yield the floor.

[[Page S8049]]

  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I have been working for some time to 
wrestle with this question of the right number of military forces we 
need in Europe. It is an issue that has given me some pause. I thought 
we had an agreement several years ago to make some noticeable changes 
in that force structure. Some changes have indeed been made and others 
were in the works and they apparently have been put on hold and 
altered.
  So I just wished to share some thoughts about it. I thank Senator 
Levin and Senator McCain for working with me to develop an amendment to 
this bill that helps call attention to this problem with the Department 
of Defense.
  We have had a long and historic relationship with Europe and our 
European allies. They remain the best allies we have in the world. We 
have large numbers of troops still in Europe. But there are not nearly 
as many as there have been in the past. But the numbers are still 
extraordinary. We have, at this time, 80,000 U.S. troops in Europe, and 
I do not believe military threats justify that large a troop presence. 
Our historic even larger number was based on the Soviet threat, the 
Fulda Gap, the weakness of our European allies after World War II and 
their lack of strength and the bond that NATO meant. We stuck together 
and transformed the entire North Atlantic region in a positive way.
  A book called ``Paradise and Power'' has been written about where we 
are today. It is a pretty significant book, frankly. The essence of it 
is that the Europeans are in a paradise protected by American power, 
and they do not feel any need to substantially burden themselves with 
national defense because the United States is there.
  We have a nuclear presence, we have 80,000 troops, and we have the 
fabulously trained, highly skilled military with the lift capability of 
moving to a troubled and dangerous spot at any time. I do think it is 
fair to say they have become a bit complacent.
  As part of a CODEL I led in 2004, we visited Europe, because the 
United States was going through a BRAC, a reduction of U.S. basing, and 
we did not have the same type policy with regard to international 
bases. We visited--Senator Chambliss and Senator Enzi and I--bases in 
Europe, particularly bases we felt would be enduring, such as Rota, 
Spain, Sigonella and Vicenza and other bases--and Ramstein in Germany.
  But there are others, lots of others. So part of the NATO commitment 
is that each nation in Europe would invest and spend 2 percent of their 
GDP on defense. We have been 4 percent--sometimes over that recently--
in recent years. So our NATO members, however, are falling below that. 
Germany, the strongest economy in Europe, is at 1.2 percent of GDP on 
defense, and they spend a large portion of that on short-term, less 
than 1 year, military training of young people in Germany.
  The fact is, a 9-month trainee is not someone in the modern world we 
can send into combat. They are just not sufficiently trained. Many 
military experts believe this is a waste of money. So even the money 
they are spending, in many ways, is not effectively and wisely spent to 
create the kind of modern military they have to have to be successful 
in a serious manner.
  We do, though, believe Europe is not facing the kind of threats we 
had. I think it is appropriate for us to talk to our European allies 
and say we want to proceed with a drawdown, where possible. This Nation 
is borrowing 40 cents of every $1 we spend. The Defense Department, 
under the sequester that will occur as a result of the failure of the 
committee of 12 to reach an agreement, will be facing dramatic cuts in 
spending, over $1 trillion based on President Obama's projected budget 
over 10 years. We need to look for every reasonable savings we can.
  The Defense Department is taking too heavy a cut in my opinion, far 
more than any other department of government. However, we cannot 
sustain that. I do not support that large a cut, but it will be 
reducing spending by a significant amount. So I believe we should think 
about our foreign deployments. The National Defense Authorization Act 
represents a vision for defense spending. We are now down from $548 
billion spent on the Defense Department last year, $527 billion this 
year, an actual reduction in noninflation dollars of over $20 billion.
  As a matter of fact, the Budget Control Act agreement calls for a 
reduction of total spending in the discretionary account this year of 
$7 billion; whereas, the Defense Department is taking $20 billion. 
Other departments therefore are receiving increases to get the net 7 
that is claimed. Unfortunately, that is not an accurate number because 
we do not achieve even the $7 billion promised.
  Since 2004, the Defense Department had a plan to transfer two of its 
four highly trained combat brigades in Europe back to the United States 
as part of the larger post-world war realignment. However, in April of 
this year, the Department of Defense announced it would maintain three 
combat brigades and not bring the fourth one home until 2015.
  I have asked the Chairman of the Joint Chiefs of Staff, General 
Dempsey, at the Armed Services hearing, and I asked Admiral Stavridis, 
our European EUCOM commander, and they had no good explanation for why 
we are altering the plan that has been in place.
  So my amendment has been agreed to on both sides and would require 
three things from the Department of Defense: No. 1, assessment of the 
April 2011 decision to station three Army brigade combat teams in 
Europe; No. 2, an analysis of the fiscal and strategic costs and 
benefits of reducing the number of forward-based military personnel in 
Europe to that recommended by the 2004 Global Posture Review; and, No. 
3, to describe the methodology used by the Defense Department to 
estimate the current and future cost of U.S. force posture in Europe.
  So is Europe more threatened today than before? I do not think so. 
The United States has a tougher financial condition today than before? 
Yes. I believe we need to look at this carefully. I thank Senator 
McCain and Senator Levin for working with me to recommend an amendment 
they believe is consistent with the goals I am seeking without 
micromanaging the Department of Defense.
  I thank the Chair. I am pleased this amendment will be considered, 
and perhaps we can make some progress to analyzing more properly the 
deployment of forces in Europe. Finally, I would say there is no doubt 
in my mind that the economy of the United States is benefited if a 
brigade is housed in the United States, and the costs of support and 
family are in the United States strengthening our economy rather than 
transferring the wealth of our Nation to a foreign area.
  I hope we will consider that as we deal with this issue.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.


                           Amendment No. 1229

  Mr. McCAIN. Mr. President, I call up amendment No. 1229 and ask for 
its immediate consideration.
  The PRESIDING OFFICER. The amendment is already pending.
  Mr. McCAIN. I note the presence of my colleague, Senator Lieberman, 
on the floor, the chairman of the Homeland Security Committee.
  I thank my friend from Connecticut for his support of this amendment 
and the importance, with the full realization of the key role the 
chairman of the Homeland Security Committee plays in the issue of cyber 
security, which is the most--in many respects, one of the most looming 
threats to our Nation's security.
  Mr. LIEBERMAN. Mr. President, I thank my friend from Arizona. I 
appreciate this amendment he has offered. I believe I am now listed as 
a cosponsor. If not, I ask unanimous consent that I be so listed.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LIEBERMAN. This amendment essentially codifies a very important 
memorandum of understanding between the Department of Homeland Security 
and the NSA, the National Security Agency. This is a perfect balance 
and exactly the kind of overcoming of stovepipes we need to see in our 
government.
  Under existing law, the Department of Homeland Security has 
responsibility for protecting nondefense government, Federal Government 
cyberspace--cyber networks--and the privately owned and operated 
cyberspace,

[[Page S8050]]

which actually amounts to some of the most critical cyber 
infrastructure in our country is privately owned.
  Today, as Senator McCain suggested, a target of attack by an enemy 
wanting to do us harm could be, for instance, our transit systems, 
financial systems, electric grid, and the like. What is embodied in 
this memorandum of understanding between DHS and NSA--which we will, by 
this amendment, codify into law--is to maintain the quite appropriate 
interface of the Department of Homeland Security with the privately 
owned cyber-infrastructure and those who own and operate it, yet 
utilizing the unsurpassed capabilities of NSA.
  I appreciate that in this colloquy Senator McCain and I are entering 
into, we both make clear--and I appreciate that his intention here in 
offering this amendment is not to circumvent the need for broader 
legislation to protect our American cyberspace from theft, 
exploitation, and attack. It happens that the current occupant of the 
chair, the junior Senator from Rhode Island, has been a leader in this 
Chamber in pushing us to deal with these kinds of problems.
  Senator Reid has announced that he will bring a comprehensive cyber-
security bill to the floor of the Senate in the first work period of 
2012. That is very good news for our security. As Senator McCain said, 
I don't know that we today have a more serious threat to our security 
than that represented by those who would do us harm by attacking our 
cyber-systems, both public and private. This colloquy makes clear that 
this is a very significant first step, and that we need to do something 
more comprehensive and look forward to doing it on a bipartisan basis 
in the first work period in 2012.
  Mr. McCAIN. I thank the Senator from Connecticut, my dear friend. The 
amendment establishes a statutory basis for the memorandum of agreement 
between the Department of Defense and Homeland Security on cooperative 
cyber-security support. Nobody should have any doubt about how serious 
this issue is. Secretary of Defense Panetta said this in June:

       The next ``Pearl Harbor'' we confront could very well be a 
     cyber attack.

  ADM Mike Mullen at a hearing on 
9/22 referred to the cyber-threat as an existential threat to our 
country. This is a serious issue and one that, as the Senator from 
Connecticut pointed out, is of utmost importance to our Nation's 
security.
  Mr. LIEBERMAN. Mr. President, I would like to thank my friend Senator 
McCain for introducing an amendment codifying an existing memorandum of 
agreement between the Department of Homeland Security and the 
Department of Defense that formalizes their cooperation on 
cybersecurity work. Our Nation needs to confront the growing threats we 
face in cyberspace; as Secretary of Defense Leon Panetta testified in 
June, the ``next Pearl Harbor we confront could very well be a cyber-
attack.''
  Mr. McCAIN. I thank my friend for cosponsoring my amendment, and 
share his concern about the threat our Nation faces. In a hearing 
before the Armed Services Committee just two months ago, former 
Chairman of the Joint Chiefs of Staff Admiral Mike Mullen called the 
cyber threat an ``existential'' threat to our country.
  The purpose of my amendment is to codify the current memorandum of 
agreement, and to ensure that the relationship between DoD and DHS 
endures. This growing partnership demonstrates that the best 
government-wide cybersecurity approach is one where DHS leverages, not 
duplicates, DoD efforts and expertise. This is just one of the many 
issues we need to address on cyber legislation, and does not diminish 
the need for a comprehensive bill addressing our Nation's 
cybersecurity. But our work together on this should serve as an example 
of where consensus can and should exist moving forward.
  Mr. LIEBERMAN. I agree wholeheartedly. The approach embodied by the 
memorandum of agreement--and this amendment--exemplifies the potential 
for DoD and DHS to leverage each other's expertise, to make efficient 
use of existing government resources, and to avoid unnecessary growth 
of government. That is the approach we must follow as we continue down 
the path toward comprehensive cybersecurity legislation.
  Mr. McCAIN. I agree, and I again thank my colleague for supporting my 
amendment. While at the end of the day we may not agree on all of the 
provisions of a bill, I look forward to working together early in the 
coming year to address these issues under a process that allows for 
full debate of the issues on which we may differ.
  Mr. McCAIN. Mr. President, I urge adoption of the amendment.
  The PRESIDING OFFICER. Is there further debate?
  The question is on agreeing to the amendment.
  The amendment (No. 1229) was agreed to.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Ms. AYOTTE. Mr. President, I ask unanimous consent that Senator 
Lieberman and I be allowed to engage in a colloquy.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 1068

  Ms. AYOTTE. Mr. President, obtaining intelligence from high-value 
terrorist detainees is an urgent national security priority that is 
essential to protecting Americans. Unfortunately, under current law, 
terrorists need look no further than the Internet to find out 
everything they need to know about our interrogation practices and how 
they can circumvent them. Under President Obama's 2009 Executive Order 
13491, all U.S. Government interrogators are limited to the 
interrogation techniques that are available online and described in the 
Army Field Manual. As a result, all members of the intelligence 
community, including the non-Department of Defense intelligence 
professionals who support the high-value detainees interrogation group, 
must conform to the procedures in the Army Field Manual, which was 
written by the U.S. Army for the U.S. Army; that is, there is little 
flexibility permitted under these rules, and they are easy for those 
who want to harm us to circumvent them and to know exactly what 
techniques we will use to gather information to protect our country if 
they are detained as an enemy combatant.
  Mr. LIEBERMAN. Would the Senator yield for a question?
  Ms. AYOTTE. Yes, I will.
  Mr. LIEBERMAN. Let me thank my friend, Senator Ayotte, for playing 
such a leading role in our debates on this critical issue of how our 
country handles detainees and gathers intelligence in our war on 
terrorism. I share her concerns about the potential damage to our 
intelligence collection efforts inflicted by adherence to the existing 
restrictions on interrogations. That is why I am pleased to be, with 
others, a cosponsor of the amendment introduced, amendment No. 1068.
  I will say that I am also disturbed about the amount of 
misinformation that seems to be circulating about this amendment and 
similar efforts in the past that I have supported.
  I ask the Senator from New Hampshire, does amendment No. 1068 
authorize torture?
  Ms. AYOTTE. I thank my friend, the Senator from Connecticut, first, 
for his leadership in this body on national security. We both had the 
privilege of serving our States as attorneys general.
  The answer is no. This is an amendment, I point out, that not only is 
Senator Lieberman sponsoring--and I appreciate his experience and 
leadership on this most important national security issue--but Senator 
Chambliss, vice chairman of the Intelligence Committee, as well as 
Senator Graham and Senator Cornyn, who are both members of the Armed 
Services Committee, as well as the Judiciary Committee. It is very 
important to be clear about what this amendment would and would not do.
  This proposal takes every possible measure to put into place 
intelligence-gathering practices that honor our American values and 
laws. Our amendment in no way condones or authorizes torture. There 
have been many groups trying to misrepresent what is in this amendment. 
Any new interrogation techniques that are developed would be required 
to comply with the U.N. Convention Against Torture, the Military 
Commissions Act, the Detainee Treatment Act, as well as section 2441 of 
Title 18 U.S. Code that relates to war crimes.

[[Page S8051]]

  Mr. LIEBERMAN. I thank my friend for that clarification. It is very 
important. It is very critical--particularly for those who 
misunderstood this amendment--to understand the host of protections 
that the amendment puts in, both compelling compliance with the 
international convention against torture, as well as explicit 
prohibition in American law against interrogation that amounts to 
torture.
  I want to ask my friend another question. Right now, all Federal 
Government interrogators, whether in the military or in the civilian 
intelligence community, are limited to using the Army Field Manual. So 
why does the Senator think it is so critical to give interrogators the 
ability--limited ability--to go beyond the Army Field Manual?
  Ms. AYOTTE. I appreciate the question from my friend and colleague. 
The decision by President Obama to limit interrogators to the Army 
Field Manual was based, in part, on the horrible abuses that happened 
at Abu Ghraib prison in Iraq. Undoubtedly, the abuses at Abu Ghraib 
failed to reflect American values, tarnished America's reputation, and 
certainly damaged our interests. However, responding to these abuses by 
reflexively applying an Army Field Manual--which, to be clear, 
terrorists can go online and get and know exactly which techniques they 
will be subject to if captured--to all Federal Government interrogators 
doesn't reflect the severity of the threat to our country and the 
importance of providing our nonmilitary intelligence collectors all of 
the lawful tools they need to gather intelligence to prevent nuclear 
attacks and protect our country.
  Mr. LIEBERMAN. I thank the Senator for that answer. I completely 
agree with her. It is important to step back and perhaps state the 
obvious. Why do we capture enemy combatants? Why do we take prisoners 
of war? Two reasons, really. The obvious one is to get them off the 
battlefield against us so they can no longer attempt to kill Americans 
in uniform and, in the case of the war we are in with Islamist 
terrorists, to kill civilians. That is first--get them off the 
battlefield.
  The second purpose--and this has been the traditional purpose of 
taking prisoners of war as long as there has been warfare in human 
history, and all the more so now--is to gather intelligence from them 
that will assist us in defeating the enemy and protecting our goals and 
protecting the lives of our men and women in uniform. That traditional 
purpose for taking prisoners of war is all the more critical in the 
unconventional war we are in against a brutal enemy that doesn't strike 
from battleships or tactical air fighters or military tanks or even in 
uniform; they strike us from the shadows, and they strike civilians as 
well.
  It is very important to approach this amendment understanding that we 
are trying to increase, in a reasonable way, the capacity of those who 
work for us to protect our security and freedom to interrogate 
detainees that we have captured in the war against terrorism. One of 
the purposes is to gather intelligence, which will help us protect the 
lives of Americans and of our allies.
  The preface to the Army Field Manual says it applies to the active 
Army, the Army National Guard, and the U.S. Army Reserve, unless 
otherwise stated. So as to the field manual, recognizing that these 
words create limited applicability of the manual outside the Army, the 
Army Training and Doctrine Command authors had the wisdom to warn that 
this manual was ``Army doctrine,'' and it would have to be adapted, 
altered to apply to other ``military departments'' or other military 
service. If the interrogation techniques in this manual are not ideally 
suited for military services other than the U.S. Army, why should 
civilian interrogation professionals in the intelligence community, and 
particularly those who are in support of a high-value detainee 
interrogation, those who get the most powerful and influential and 
dangerous prisoners of war, be forced to comply with a document written 
for a defined military unit, which is the U.S. Army? I ask my friend 
from New Hampshire that question.

  Ms. AYOTTE. I appreciate the question from the Senator from 
Connecticut. Absolutely, as the Senator pointed out, the Army Field 
Manual was not created for this purpose. As he mentioned, the high-
value detainee interrogation group is a group consisting of the CIA, 
FBI, and Defense Intelligence Agency, designed to interrogate the worst 
terrorists, who are likely to have valuable information about future 
attacks and information we need to protect our country. To address this 
problem, we drafted the amendment through this authorization that would 
allow members of the intelligence community, who are assigned to or in 
support of the high-value interrogation group, to utilize interrogation 
techniques that are consistent with our laws and values. Our amendment 
would ask the Secretary of Defense, working with the Director of 
National Intelligence and the Attorney General, to develop a classified 
annex to the Army Field Manual that terrorists could not see. 
Unfortunately, now they can go on the Internet and look at the 
techniques. It classifies that the Army Field Manual would provide 
interrogation techniques that would be used by that important select 
group of intelligence-gathering professionals, to allow them to have 
for their use the techniques they need to gather information and 
protect our country.
  Mr. LIEBERMAN. Again, I thank my friend from New Hampshire, but I 
want to go back to something I said earlier. We have described the 
purpose of this amendment--what I call the due process we have put into 
it, the mandate that it comply with existing international norms and 
treaties, and, obviously, to comply with our law. I want to say to my 
colleague that it is certainly not my intention--and I ask my colleague 
is it her intention--that any of the measures we are authorizing--the 
interrogation tactics for the worst of the terrorist detainees--should 
or could equal what is conventionally known as torture? In other words, 
we are not attempting to legalize torture with this amendment.
  Ms. AYOTTE. I thank the Senator for the question. The answer is, no; 
we are not. We believe torture violates our laws and runs counter to 
American values. That is what I believe. That is why we specifically 
require the techniques developed by the Secretary of Defense, the 
Director of National Intelligence, and the Attorney General have to 
comply with the U.N. Convention Against Torture and all applicable 
laws, including the Detainee Treatment Act. Thus, the ACLU's claim the 
amendment threatens to revive the use of torture is patently false, 
unfortunately.
  Currently, the Army Field Manual interrogation techniques our 
intelligence community interrogators must follow are publicly listed 
online. That is unacceptable. It is like the New England Patriots 
giving their opponents their playbook days or weeks before the game 
begins. In my experience as attorney general of New Hampshire and as a 
murder prosecutor, no detective or cop in even a common criminal case 
would tell the criminals what techniques they are going to use to 
gather information.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. Mr. President, could I ask my friend from New Hampshire to 
allow me to propose a unanimous consent request?
  Ms. AYOTTE. I would grant the leader that request.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. The reason I ask is that Senator Levin and I have a 
classified briefing that starts at 5:30.
  May I ask the Senator how much longer she wishes to speak? It doesn't 
matter, but just so I have an idea.
  Ms. AYOTTE. I would say probably 5 minutes.
  Mr. REID. Mr. President, I ask unanimous consent that following the 
statement of Senator Ayotte of approximately 10 minutes--she has been 
here long enough that she has learned to keep Senators' time, and 5 
minutes really isn't 5 minutes--does the Senator from Connecticut wish 
to speak?
  Mr. LIEBERMAN. Mr. President, I would say to the leader, I am in this 
with the Senator from New Hampshire, so we will complete our colloquy 
within 10 minutes.
  Mr. REID. So following their colloquy of 10 minutes, I ask unanimous 
consent the Senate proceed to a period of morning business for 1 hour; 
that following that we go back to the Defense authorization bill.
  There will be no more votes this evening, though, Mr. President.

[[Page S8052]]

  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. I appreciate the time of the Senator from New Hampshire.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Ms. AYOTTE. I thank our leader for giving us the opportunity to 
continue this colloquy.
  I just wanted to point out--we were talking about the fact the Army 
Field Manual is online--that in my experience as New Hampshire's 
attorney general and prior to that as a murder prosecutor--and I know 
my colleague served as his State's attorney general as well--no 
detective or cop on the beat, in a common criminal case--and, of 
course, we are dealing with a situation where we are at war with 
terrorists--would ever give a criminal their playbook as to what 
techniques they would use to question them to get information to see if 
a crime has been committed and to see that justice is served. Yet here 
we are in a situation where we have online the techniques from the Army 
Field Manual while we are at war with terrorists who want to kill us.
  What we are saying with this amendment is that we need to allow the 
intelligence professionals to develop techniques, but in a classified 
annex, consistent with our laws, that would allow them to gather 
intelligence and not tell our enemies what techniques will be used to 
gather information from them.
  Not surprisingly, al-Qaida terrorists have taken advantage of our 
willingness to tell them publicly on the Internet what will and will 
not happen during an interrogation should they be captured. Al-Qaida 
terrorists have familiarized themselves with the interrogation 
techniques they would confront if captured, and they are training on 
how to respond. That makes it more difficult for us to gather 
information.
  The willingness of the United States to give the equivalent of 
interrogation CliffsNotes to terrorists places our interrogators at a 
disadvantage and makes it more difficult to gather the information we 
need to save American lives. So developing a classified annex of lawful 
techniques for intelligence professionals who are interrogating the 
worst terrorists would make it harder for terrorists to train to avoid 
and resist interrogation.
  The key to our amendment is giving this limited group of intelligence 
community interrogators the techniques they need to gather information 
but to do so without resorting to torture and while retaining an 
operational advantage that makes it more likely an interrogation will 
be successful.
  Mr. LIEBERMAN. Again, Mr. President, I thank the Senator from New 
Hampshire. Just in listening to her, it seems so unacceptable that we 
are basically telegraphing to our enemy exactly the range of tactics 
that we will use against them as part of the interrogation.
  We have set some quite appropriate constraints in this amendment 
consistent with our values and our laws and international law so that 
we are not going to get anywhere near torture. But when a member of al-
Qaida or a similarly associated terrorist group is captured, I want 
that person to be terrified about what is going to happen to them while 
in American custody. I want them not to know what is going to happen. I 
want the terror they inflict on others to be felt by them as a result 
of the uncertainty of not knowing they can look on the Internet and 
find out exactly what our interrogators are going to be limited to.
  Again, we will not tolerate torture. We will not tolerate what 
happened at Abu Ghraib. I think the limited interrogation in the Army 
Field Manual was an understandable but excessive reaction to the 
extreme and unacceptable behavior by Americans at Abu Ghraib. I hope 
this amendment will facilitate a return to the kind of sensible middle 
ground on which we will not be shackling our interrogators as they try 
to get intelligence, within the law, to protect our freedom and the 
safety of those who are fighting for us.

  So I want to ask my friend from New Hampshire whether she thinks we 
have now a kind of one-size-fits-all approach to interrogation that is 
posted online. In other words, our laws should make it easier, within 
the law, not harder, to gather intelligence to keep Americans safe. Yet 
it seems the current policy runs counter to that basic principle. Does 
my friend from New Hampshire agree?
  Ms. AYOTTE. I do. I do agree. As a matter of common sense, this 
amendment should go forward. The reality of telling our enemies online 
what to expect just defies common sense. That is what we are addressing 
with this amendment.
  Mr. GRAHAM. If I may, I find the discussion fascinating. May I enter 
into the colloquy?
  The PRESIDING OFFICER. Subject to the previous order, the Senator is 
welcome to join the colloquy.
  Mr. GRAHAM. I thank the Chair.
  As I understand it, the reason the Senator is having to do this is 
because President Obama, by Executive order, prevented the CIA and 
other agencies from using any enhanced interrogation techniques that 
have been classified in the past; is that correct?
  Ms. AYOTTE. That is right. Unfortunately, we are just telegraphing to 
our enemies what techniques we are going to use.
  Mr. GRAHAM. If I may, let me ask another question. All of us agree we 
don't want to torture anybody. Waterboarding is not the way to get good 
intelligence. Not only is it not the right thing to do, it is just not 
the wise thing to do. But we believe we have gone too far the other 
way; that when the President said no interrogation technique is 
available to our intelligence community other than the Army Field 
Manual, does my colleague agree that, for the first time in American 
history, we are advertising to our enemies what we can do to them if we 
capture them, and no more can be done?
  Ms. AYOTTE. I would say the Senator is absolutely right. I appreciate 
that the Senator from South Carolina has cosponsored this amendment, as 
has Senator Lieberman, and I appreciate Senator Lieberman's leadership. 
I would like to say while we are in this colloquy that Senator 
Lieberman has also been a mentor to me in the Senate, and I appreciate 
that as well as his leadership on these issues.
  Really, it comes down to this: We should not be telegraphing, we 
should not be advertising to our enemies what techniques our 
professional interrogators will use. This amendment is limited to the 
group of professionals who will focus on these issues and who will be 
gathering intelligence from terrorists.
  We have to protect our country. Why would we do this? It just doesn't 
make sense.
  Mr. GRAHAM. My good friend from Connecticut is aware there is a 
proposal pending on the floor of the Senate that would say, for the 
first time in American history, if a U.S. citizen decides to 
collaborate with an enemy, they cannot be held as an enemy combatant. I 
think the Senator is very familiar with the history of the law in this 
area. Unfortunately, during the entire history of our country, during 
other conflicts, American citizens have, on occasion, collaborated with 
the enemy, one of the most famous cases being the In re Quirin case, 
where an American citizen in New York and other places was helping Nazi 
saboteurs try to sabotage America.
  In that case, the Supreme Court ruled an American citizen could be 
detained as an enemy combatant because the decision to collaborate with 
the enemy was a decision to go to war with their country, not a common 
crime, and that the law to be applied was the law of war. I am certain 
the Senator is familiar with the Hamdi case, where an American citizen 
seized in Afghanistan was allowed to be held as an enemy combatant. The 
Hamdi decision reaffirmed In re Quirin, and the Padilla case involved 
an American citizen captured in the United States accused of 
collaborating with al-Qaida.
  All of those cases reaffirm the law of the land is, if someone 
chooses to help al-Qaida, they have committed an act of war against 
their fellow citizens, and they can be held as an enemy combatant for 
an indeterminate period of time so that we can gather intelligence 
about what they may have done or about what they know about the enemy.
  Does the Senator from Connecticut agree that now would be a very bad 
time for the Congress to say, for the first time in American history, 
if an American citizen decides to help al-

[[Page S8053]]

Qaida attack us, to kill us, our military can't hold them as an enemy 
combatant and find out what they were up to?
  Mr. LIEBERMAN. Mr. President, I thank my friend from South Carolina 
for participating in our colloquy, and, of course, I totally agree with 
him, first of all, on the principle. As he has said very well, and he 
knows the law very well or better than anyone around here, the Supreme 
Court has made clear an American citizen, who by his or her acts has 
declared themselves to be an enemy of the United States, can be treated 
as an enemy combatant. If we change that now, it is not only wrong on 
principle, but it is absolutely the wrong time to do this.
  Let me speak now for a moment--and I am privileged to be the chair of 
the Senate Homeland Security Committee.
  The PRESIDING OFFICER. The 10 minutes allocated for the colloquy has 
expired.
  Mr. LIEBERMAN. Mr. President, I ask unanimous consent for an 
additional 4 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Very briefly, the great concern we have now in terms of the security 
of the homeland is from so-called homegrown terrorists, radicalized 
Americans who effectively have joined al-Qaida or other terrorist 
enemies to attack the United States.
  It is a sad and painful reality that, since 9/11, the only Americans 
killed on American soil by Islamist extremists and terrorists have been 
killed by other Americans who have been radicalized, who have become 
enemy combatants. I am speaking particularly of MAJ Nidal Hasan who 
killed 13 people at Fort Hood, and then an American named Bledsoe, who 
walked into an Army recruiting station in Little Rock, AR, and killed 
an Army recruiter just because he was wearing a uniform of the U.S. 
Army.
  So these people have taken sides. They have joined the enemy. So to 
have this body at this time, as the threat of homegrown terrorism 
rises, say: No, they can't be treated as enemy combatants, not only 
does it not make sense and is totally unresponsive to the facts I have 
just described, the fact is, it is also dangerous.
  So I couldn't agree with the Senator more. I wish to thank Senator 
Ayotte, as we come to the end of this colloquy, for her initiative, 
frankly, for swiftly establishing herself in the Senate as one of our 
important leaders on national security matters. I am a little biased 
about this, but I know her experience as a former State attorney 
general has helped as well as what I have noted is her active and 
informed participation on the Armed Services Committee.
  I must say that as I am about to enter my last year privileged to be 
a U.S. Senator, it gives me great comfort to know Senator Ayotte is 
going to be here to carry on these fights for American national 
security and for freedom.
  Ms. AYOTTE. I thank Senator Lieberman very much. Again, I appreciate 
the Senator's leadership and all he has done for our country, to 
protect our country. I dare say no one has been more focused on 
protecting our country, and we deeply appreciate his leadership.


                      Amendment No. 1067 Withdrawn

  Ms. AYOTTE. Before I yield the floor, I need to briefly discuss the 
withdrawal of an amendment I have, which is amendment No. 1067, 
regarding notification of Congress with respect to the initial custody 
and further disposition of members of al-Qaida and affiliated entities.
  I have received assurances from the Armed Services Committee majority 
and minority staff that these comments and steps which are outlined in 
that amendment will be addressed when the Defense bill goes to 
conference.
  Therefore, Mr. President, I ask unanimous consent that my amendment 
No. 1067 be withdrawn. But I also understand that the Armed Services 
Committee will take up my amendment when the Defense bill goes to 
conference as part of the conference on this bill.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. RUBIO. Mr. President, some people are wrongly suggesting that the 
National Defense Authorization Act for fiscal year 2012, this 
legislation will allow the military to capture and indefinitely detain 
any American citizen, and that the U.S. Armed Forces would be able to 
perform law enforcement functions on American soil because of the 
authority conferred under sections 1031 and 1032 of the act.
  Several people have asked about my votes on the National Defense 
Authorization Act for fiscal year 2012. In particular, some people are 
wrongly suggesting that this legislation will allow the military to 
capture and indefinitely detain any American citizen, and that the U.S. 
Armed Forces would be able to perform law enforcement functions on 
American soil because of the authority conferred under sections 1031 
and 1032 of the act. While I do have other serious concerns with this 
legislation, those particular assertions could not be further from the 
truth. I want to take this time to explain what the law actually does, 
what my position is on these issues, and why I joined with Senators 
Demint, Coburn and Lee to vote for those specific sections but against 
cloture on the final bill.
  Section 1031 of this act merely affirms the authority that the 
President already has to detain certain people pursuant to the current 
authorization for use of military force. In fact, this same section of 
the bill specifically states that nothing stated in section 1031 is 
intended to expand the President's power. In addition, this section 
sets specific limits on who can be detained under this act to only 
those people who planned or helped carry out the 9/11 attacks on the 
United States or people who are a member of, or substantially support, 
al-Qaida, the Taliban, or their respective affiliates. There is no 
language that could possibly be construed as repealing the Posse 
Comitatus Act and allowing the U.S. military to supplant your local 
police department in carrying out typical law enforcement activities.
  In particular, some folks are concerned about the language in section 
1031 that says that this includes ``any person committing a belligerent 
act or directly supported such hostilities of such enemy forces.'' This 
language clearly and unequivocally refers back to al-Qaida, the 
Taliban, or its affiliates. Thus, not only would any person in question 
need to be involved with al-Qaida, the Taliban, or its surrogates, but 
that person must also engage in a deliberate and substantial act that 
directly supports their efforts against us in the war on terror in 
order to be detained under this provision. There is nothing in this 
bill that could be construed in any way that would allow any branch of 
the military to detain a law-abiding American citizen if they go to the 
local gun store or grocery store. What this section of the bill does is 
help provide for our national security by giving clarity to the 
military in regard to its authority to detain people who have committed 
substantially harmful acts against the United States. This is extremely 
important given that there are al-Qaida cells currently operating 
within our borders. I would not leave the risk of a terrorist attack 
that could claim the life of a member of my family up to chance, and I 
will not leave that risk for your family either.
  Section 1032 of this bill concerns a smaller group of people who 
Congress believes are required to be detained by the U.S. military 
because people who fit within this criteria are a more serious threat 
to our national security. Any person detained under section 1032 must 
be a member of, or part of, al-Qaida or its associates and they must 
have participated in the planning or execution of an attack against the 
U.S. or our coalition partners. Simply put, the application of this 
detention requirement is limited to al-Qaida members that have tried to 
attack the U.S. or its allies. However, this detention requirement is 
clearly limited by a clause that states that the requirement to detain 
does not extend to U.S. citizens or lawful permanent residents.
  Together, these two sections do the following: They affirm the 
authority of the executive branch to act within our national interest, 
and they provide the Federal Government with the tools that are needed 
to maintain our national security. This bill does not overturn the 
Posse Comitatus Act; the military will not be patrolling the streets. 
This bill does not take away our rights as citizens or lawful permanent 
residents; the authority under this act does not take away one's habeas 
rights. These sections do not take

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away an individual's rights to equal protection under the 14th 
amendment to the U.S. Constitution, nor do they take away one's due 
process rights afforded under the 5th or 14th. If this bill did such a 
thing, I would strongly oppose it.
  I want to thank everyone for reaching out to the office to voice 
their concerns on this bill. I want to assure them that I always have, 
and always will, listen to their concerns and address them in a timely 
fashion. I know this bill is not perfect. In fact, I proposed two 
amendments to prevent the President from transferring foreign 
terrorists to the U.S. to be prosecuted in the Federal court system, 
and I joined with Senators DeMint, Coburn, and Lee to vote against 
cloture. However, in regard to the assertions that this bill allows the 
U.S. military to supplant our local police departments or that it 
allows the Federal Government to detain otherwise law-abiding citizens 
for simply carrying on in their daily lives, those assertions are 
entirely unfounded. As always, if anyone has any other questions, 
please feel free to contact me.

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