quorum call: the presiding officer: the

clerk will call the roll. quorum call:

a senator: mr. president? the presiding officer: the senator from south carolina. mr. graham: i'd ask the quorum call be terminated. the presiding officer: without objection. mr. graham: i believe it is appropriate now to call up the lieberman amendment as modified? the presiding officer: the senator is correct.

mr. mccain: if the senator from south carolina would suspend, i think we've got a package of cleared amendments that we'd like to do first. if that's agreeable. mr. graham: absolutely. mr. mccain: i suggest the absence of a quorum. the presiding officer: the clerk will call the roll.

quorum call:

mr. levin: mr. president? the presiding officer: senator from michigan. mr. levin: i ask unanimous consent that the quorum call be vitiated. the presiding officer: without objection. mr. levin: i ask unanimous consent that senators lieberman and graham call up amendment 1560 as modified. the presiding officer: without objection. a senator: mr. president? the presiding officer: the senator from south carolina. mr. graham: thank you very much. i appreciate the assistance of chairman levin and all of those involved. this is, to me, a very important statement by the senate at a crucial time in our nation's history. simply put our amendment is a sense of the senate statement that there is a preference for military commissioned trials regarding detained terrorists. the reason we're making this statement and trying to urge our colleagues to agree with us, is

that the interim detainee report that has been issued in the last day or two by the white house has a statement within that report, that's an interim report, that there should be a presumption that detained terrorists would be tried in article 3 of federal civilian courts. and i could not disagree more. we will keep working with the administration on this issue. there may be an odd case where a federal court would be an appropriate venue. but i think i speak for senator lieberman, and i hope most americans, that the people we're talking about are not common criminals, they're not detained because of some violation of domestic criminal law. they're detained because they've been found to be part of al qaeda and other terrorist organizations that the congress has previously determined to be enemy combatants belligerance. people who have taken up arms against the united states of

america, who are intent on destruction, they're not accused of robbing a liquor store, they fall within a narrow statutory definition that was created after 9/11. this is an opportunity for senate to express itself and say there is a preference for military courts. and i would conclude with this thought: i believe we're at where. it is an unusual war, but nonetheless, a deadly war. and the people that we're talking about, again, need to be viewed as military threats and under military law it is a appropriate -- it is appropriate to try someone who has operated outside the law of armed conflict in a military commission. our nation has been doing this for 200 years. the nazi were tried by military commission. i can give you a long history of how military commissions were used by our nation at a time of war and that is the preferred vehicle when a nation is at war and i would conclude with this

thought: those that can be tried should be tried by military commissions. there will be some enemy combatants determined to be part of al qaeda that will not be subject to criminal process either in federal courts or military commission trials and it is my belief that this country cannot afford to release them if they are still a military threat. and under military law there is no requirement to release an enemy prisoner as long as they present a threat to your country. there is no such concept in domestic criminal law. we cannot criminalize this war. it will come back to haunt us. due process is available under military law. the men and women running these trials are officers, judge advocates. i've been one for 25 years. they're wonderful people. they will adhere to the law. they understand the law. they will provide transparent justice. but this is the setting that we need to be in regarding these

detainees. in this statement by the -- and this statement by the senate i think is appropriate. to my good friend, senator lieberman, you have, above all others, tried to remind yourself that the nation's defense is important -- more important than politics. and i cannot tell you how much i admire you. we have really worked together to get a sense of the senate, not binding, but a strong statement that there is a preference that these terrorists detained as part of an al qaeda network be tried in military commissions like we've done in our history. so with that, i would yield to senator lieberman and hope my colleagues will accept this amendment. mr. lieberman: mr. president? the presiding officer: the senator from connecticut. mr. lieberman: mr. president, i thank my friend -- i believe senator -- ok. i'm sorry. i thought senator graham called up the amendment. i would then call up our amendment number 1650 as

modified. the presiding officer: the clerk will report. the clerk: the senator from connecticut, mr. leebman, for himself and mr. graham proposes amendment 1560 as modified. mr. lieberman: i ask consent that further rearing of the amendment be din dispensed with. the presiding officer: without objection. mr. lieberman: let me thank senator graham. it is always appropriate to work with him on matters of this kind, more than anyone else in the senate, he knows military law because he practices it in his capacity as a member of j.a.g. and i thank him for cosponsoring this amendment with me. i also want to thank chairman levin, senator mccain, and senator graham for the extraordinary work that they have done in improving military commission system that has been setup. and it is -- it is the basis for the amendment that senator

graham and i put in this evening. the fact is that military commissions by one name or another have played a time honored role in our country in bringing war criminals to justice. the use of military tribunals dates all the way back to the beginning of our country. our first president, general george washington, relied on them during the revolutionary war for the trial of violations of the laws of war. the united states has continued to utilize military commissions or tribunals for the trial of people accused of violation of the laws of war and related crimes throughout our history. the fact is that we are once more at war today against those who planned, authorized, or committed or aided the terrorist attacks of september 11th,

2001. there is an existing authorization for the use of military force. military commissions in my opinion, senator graham's, are therefore the appropriate forum for the trial of war criminals captured during this conflict just as they have been throughout our history and all the more comfortable should we be in saying that after the amendments to the military commission act that have been adopted as part of this national defense authorization act. let me remind our colleagues, because it was done without a lot of debate that the package of amendments to the military commission act that have been adopted as part of this legislation offered by senators levin, mccain, and graham, would ensure lawful, fair and effective trials by providing a series of protections to the accused before the military

commissions, including a prohibition on the use of statements obtained through cruel, inhuman or degrading treatment. access to evidence and meaningful appellate review of legal and factual findings. mr. president, as distinguished witnesses and authorities have testified at a hearing chairman levin led before the armed services committee on this issue two weeks ago, according to these witnesses, including people who work as general counsel of defense department, for instance, the military commission provisions in the bill before us not only meet, but surpass by far the fundamental standards of fairness and due process required by our supreme court, the geneva conventions, and the rules of the international

criminal court. given those robust procedural and substantive rights provided by the system of military commissions established in this bill, i must say that i have been surprised, troubled, i'd even go so far as to say astounded that officials of our administration have now made clear that they prefer prosecuting war criminals in federal district courts here in the united states as opposed to before the military commissions that we have established. that was testimony given before the armed services committee in response to questioning by the general counsel of the defense department, and just this week an interim report was issued by the department of defense and department of justice task force

on the legal questions associated with the detainees. and in that report, there is a sentence -- there is a presumption that where feasible, referred cases will be prosecuted in an article 3 court, which is to say a federal court, in keeping with traditional principles of federal prosecution. end quote. it is the testimony of the general counsel of the defense department and now this interim report from the department of defense and department of justice that has led senator graham and me to offer this amendment, because we simply disagree, as we think most americans and most members of the senate do, with the idea that there is a presumption in favor of trying prisoners of war before our federal courts instead of before military commissions as has been done throughout our history. this realizes at its worst, the

worst fears of people that we would begin to criminalize the war on terror instead of treating it and its perpetrators as war and criminals of war. this change in direction departs from our history and in some sense diminishes the extraordinary work that has been done by chairman levin, senator mccain, senator graham, and others to create and improve these military commissions. it may in fact cast unfounded doubt on the commission obtained by military commissions on the strength of the evidence used to secure convictions in those proceedings and the procedural protections afforded to defendants by the military commission process. our amendment is very simple, it's one long sentence, and i read it as follows: a sense of

congress. it is the sense of congress that the preferred forum for the trial of alien unprivileged enemy tkpwhreupblg raines subject to this chapter for violations of the law of war and others made punishable by this chapter is trial by military commission under this chapter. we adopt wording in the military commission section this have legislation regarding violations of the war and other offenses made punishable by this chapter and say that it is our preference that people accused of such crimes of war be tried before the military commissions. mr. president, we've created a system of military commissions that i think offers remarkable protections, perhaps the best ever offered to people in the status of alleged war criminals

against our country or any country, against our citizens or the citizens of any country. i repeat obviously we are at war, and we should, therefore, use these military commissions we have created. the preference should be in their direction. the fact is that where to bring charges against people accused of violating laws of war or, as we have said in the legislation. other offenses made punishable by this chapter. that decision is an executive branch decision. it's not one that we can control. but we can express an opinion. we can express an opinion to the executive branch respectfully that we think they have made a mistake in stating a presumption to try prisoners of war in normal district courts.

such an approach would cast doubt, as i've said, in the use of military commissions but would also set an unfortunate, even dangerous precedent for the trial of war criminals today or in future conflicts in federal courts rather than our nation's time-honored use of military commissions for the violation of the law of war. i hope we can unite and cross party lines to adopt this expression of opinion on a most important question. i thank the chair, and i yield the floor. a senator: mr. president? the presiding officer: the senator from rhode island. mr. whitehouse: thank you, mr. president. i'd just like to take a moment in response to my good friend, senator graham and senator lieberman and say a word on behalf of the united states department of justice and its prosecutors who have been actively engaged in the war on terror for many years now and

who have shown considerable success. the information that i have is that the number of individuals who have been sesfully prosecuted, convictioned and incarcerated as a result of military commissions numbers in the hands full. perhaps even fewer than five. by contrast, just this year, just since january 1 of this year, more than 30 individuals have been charged with terrorism, successfully prosecuted or sentenced to federal court. more than 30 convicted or sentenced just this year. and 355 inmates in federal prison now who have been sesfully charged, prosecuted, convicted and are now serving lengthy sentences as a result of their history or connection with

international or domestic terrorism. so, i don't want to get into discussion right now whether the military commissions are a good or a bad idea. but what has proven tried and true in terms of actually putting terrorists behind bars where they belong has been the expertise and the capability of the united states department of justice. they have been successful. there are hundreds of terrorists behind pwa*rs. there are far more than come through military commissions, and i think we should bear that in mind as we speak about this issue and as we vote on this issue. there is a lot of very high-quality prosecutorial work, a lot of real patriotism in the department of justice. and there's a reason that we should allow the professionals to sort out case by case which is the better venue for the trial, whether military commission, or the tried and true model of the united states federal prosecutor. thank you very much. i yield the floor.

the presiding officer: the senator from michigan. mr. levin: i hope quickly we can get to a voice vote on this. i will just briefly say that the executive branch created a presumption that the cases w-b tried before criminal courts, article 3 courts. i thought it was a mistake. we should not have a presumption one way or the other. the amendment before us redresses the balance to the extent that we can do it tonight. it also -- we were able to get the agreement on the part of the sponsors to strike part of the original amendment which would have created really difficult bureaucratic problems in terms of reporting case by case as to why decision wr-s made one way or another. i hope we can promptly agree to the amendment. i want to thank senators lieberman and graham. my only presence is that there not be a presumption or a -- either a presumption or a preference one way or the other.

but i think this does even the balance. and, again, it is sense of the senate. so it will be left to the department of justice. the presiding officer: the senator from connecticut. mr. lieberman: i thank chairman levin for his statement. it's a very thoughtful and mutually respectful process when you work with senator levin on matters, even on matters of disagreement. i would say in response to -- would my friend from rhode island has said in there's nothing here to disparch the work of the federal prosecutors -- disparage the work of the federal prosecutors. the point that senator graham and i are trying to make, and i hope the whole senate weurblgs is that violations of the laws of war are inherently different, regardless of what the outcome, how many people are convicted or put in jail or not, and that

those allegations of such crimes belong before military commissions or tribunals as they have been called throughout our history not in federal criminal courts where other violations of our domestic criminal law are handled. and part of that is just an appropriate allocation of responsibility. part of it is that i think it's important that we not fall into a misunderstanding that we're not involved in war. it's a very different kind of war, but it is a war. and we know that from the casualties that we suffered on 9/11 and people around the world have suffered before and since in a lot of other cities and countries. so we're making a point of appropriate forum for the trial of cases, not based on outcome but based on where these

allegations are best tried. i thank the chair. the presiding officer: is there further debate? if not, the question is on the amendment. all those in favor say aye. all those opposed, no. the ayes appear to have it. the ayes have it. the amendment is agreed to. without objection. the senator from michigan. mr. levin: mr. president, i send a series of 46 amendments to the desk which have been cleared by myself and senator mccain, the ranking member.

and i would ask consent that the senate consider these amendments en bloc, that the amendments be agreed to, and that the motion to reconsider be laid on the table. the presiding officer: is there objection? without objection, so ordered. a senator: move to reconsider. mr. levin: move to lay that on the table. the presiding officer: without objection. the senator from michigan. mr. levin: mr. president, -- mr. sanders: mr. president, i have an amendment at the desk. the presiding officer: is there objection to setting aside the pending amendment? mr. levin: there may be. i note the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:

quorum call:

quorum call: mr. sessions: mr. president? the presiding officer: the senator from alabama. mr. sessions: i ask the quorum call dispensed with. the presiding officer: the objection is heard. quorum call:

quorum call:

quorum call:

quorum call:

quorum call:

quorum call:

quorum call:

a senator: mr. president? the presiding officer: the senate come to order please. the senator from michigan. mr. levin: mr. president, i ask unanimous consent that the

quorum call be vitiated. the presiding officer: without objection. mr. levin: first, mr. president, i ask unanimous consent to modify a previously agreed-to amendment number 1799. the presiding officer: without objection, so ordered. mr. levin: i now ask unanimous consent that no further amendments be in order other than the pending amendments, that upon disposition of the pending amendments and managers' amendments, as noted below, the bill be read a third time and the senate then proceed to vote on passage of s. 1390, as amended. further, that upon passage of s. 1390, it be in order en bloc for the senate to consider the following calendar items, 91, 90, and 92. that all after the enacting

clause of each bill be stricken and the following divisions of s. 1390, as passed by the senate, be inserted as follows: division as-1391, division bs-1392, division c, s. 1393, and that these bills be read a third time, passed, and the motions to reconsider be laid on the table en bloc. further, that reconsideration of these items appear separately in the record. further, that the senate then proceed to the consideration of calendar number 96, h.r. 2647, the house companion, that all after the enacting clause be stricken and the text of s. 1390, as amended and passed by the senate, be inserted in lieu thereof, the bill be read a third time, passed, and the motion to reconsider be laid upon the table, that upon passage of h.r. 2647, as amended, the senate insist on its amendments, request a conference with the house on the disagreeing votes of the two houses, and the chair be

authorized to appoint conferees on the part of thehe senate, wih the armed services committee appointed as conferees. and that notwithstanding passage of 1390, it still be in order for managers' amendments to be considered and agreed to if they have been agreed upon by the managers and the leaders, that no points of order be considered waived by virtue of this agreement. the presiding officer: is there objection? without objection, so ordered. mr. reid: mr. president? the presiding officer: the majority leader. mr. reid: after this vote, we -- we will be in session tomorrow. we have work to do but there will be no votes tomorrow. we have received permission from our -- from everyone to move to the appropriations bill, the energy and water appropriations bill. we'll do that sometime late monday afternoon. we have to make sure the managers are available here. we have accomplished a great deal with this massive bill that

is now before this body. we -- we had a few little rock erodes to begin with with hate crimes and the gun legislation, but we were able to arrive at this with the skill of the two managers, frankly. and i appreciate very much senator levin, senator mccain, their really brilliant work on this. we have two weeks after we come back. we have two appropriation bills to do. we've got the supreme court nomination. we've got to make sure that we take care of -- so the highway fund doesn't go dry. we've got some f.h.a. stuff that's important. we've got unemployment stuff. it appears at this time the house is going to send us a single package for that. we've got travel promotion. all these things, mr. president, i've spoken in some detail to the republican leader, and i think we have a pathway forward now that we can move forward and have a very -- i think a very productive work period.

the finance committee is still working on the markup of the finance committee as it relates to health care, but that's a different issue. i don't think we need to get involved with that tonight. the presiding officer: the senator from michigan. mr. levin: mr. president, i ask unanimous consent that amendment number 1657 of senator sessions

be further modified and that we agree to that by voice vote. the presiding officer: is there objection? without objection, the amendment is further modified. the question is on the amendment as further modified. without objection, the amendment that is further modified is agreed to. mr. levin: move to reconsider. a senator: move to lay that on the table. the presiding officer: without objection. the presiding officer: the clerk will read the bill for the third time. the clerk: calendar number 89, s. 1390, a bill to authorize appropriations for fiscal year 2010, for military activities of the department of defense and so forth and for other purposes.

a senator: ask for the yeas and nays. the presiding officer: is there a sufficient second. there is a sufficient second. the clerk will call the roll. vote:

vote: vote:

vote:

the presiding officer: are there any senators wishing to vote or change their vote? if not, the -- on this vote the ayes are 97, the nays are seven and the bill, as amended is passed. a senator: move to lay on the table. the presiding officer: without objection, so ordered. the senator from michigan.

the presiding officer: under the previous order the clerk will report calendar item number 96. the clerk: h.r. 2647, an act to authorize appropriations for fiscal year 120 and so forth and -- 2010 and so forth and for other purposes. the presiding officer: under the previous order, the text of s. 1390 as amended. it's inserted in lieu of the language. without objection, the bill is considered read the third time and the bill is passed as amended. under the previous order, the senate insists on its amendment, requests a conference with the house and the chair will appoint the empowering conferees.

the clerk: kennedy, akaka, nelson of florida, nelson of nebraska, bayh, webb, mccaskill, routele, hagan, begich, burris, mccain, inhofe, sessions, graham, thune, wicker, burr, vitter, and collins. the presiding officer: the senator from michigan. mr. levin: mr. president, i wondered -- i wonder if the senator from new york mighting recognized for a brief call we can with me -- colloquy with me. the presiding officer: without objection. a senator: mr. president? the presiding officer: the senator from new york. a senator: it has passed in the house, it is about the issue of autism. mrs. gillibrand: we have a significant issue with autism. it affects one in every 150

american children, one in every 90 boys. a new case of autism is diagnosed one in every 20 minutes making it the fastest growing serious developmental condition in the united states. and if this continues the autism could reach four million americans in the next 10 years. in the military autism is even more prevalent. there are currently over 13,000 children with active duty service member with autism, representing about 1% of the nation's total population. military families understand all too well the financial impact and emotional burden of this disorder. despite this, the department of defense has been unable to adequately provide autism therapy services to their families. currently autism treatment is subject to a monthly cap under the health care system of tricare and it has a burdensome application process.

my amendment is designed to change. this to make sure that this cap no longer applies so that these military families have access to the care that their children need. and just one example -- one family whose son, taylor, has autism, he's 7 years old, are dependent on the tricare treatment, his i.q. is 3. the cut for the state program is 70. they budget $500 extra out-of-pocket per month to pay for taylor's therapy, it is far less than taylor needs to achieve his potential. so what we're hoping to do is ultimately make sure that children who has autism whose mother or fathers serve in the military will have access to the number of hours of treatment that doctors recommend. we hope that through efforts down the line we can begin to provide these resources for the men and women who put their lives on the line every day for

our country. the presiding officer: the senator from michigan. mr. levin: mr. president, let me commend the senator from new york for identifying a very, very significant problem. and i -- she has always shown great sensitivity to the needs of the men and women in the armed forces and there is a provision in the house bill. we're not sure exactly what it is to this issue and the need to provide for autistic kids and we will take a look at that in conference and see if there is anything that we can do to move in the direction in which the senator from new york has so properly identified. mr. president, very -- very briefly, if i could, the proud -- the proud tradition that our committee has maintained every year since 1961 continues with the senate's passage of this 48th consecutive national defense authorization bill. we're motivated to pass bill as

we are every year. in fact, we're inspired to pass this bill by the men and women of the armed forces and their families. they give it everything they have 24/7. they never give up or give in. we always have to work long andular to pass this bill, but it is worth every bit of effort. i thank our leadership on both sides of the aisle. our committee's bipartisanship also makes this moment possible. i'm proud to serve with senator mccain. i'm great full for his -- gateful -- grateful for his partnership and friendship. a year-work on a bipartisan basis for an entire year is most appreciated. i especially want to thank not only our subcommittee chairs and ranking members, but give special thanks to the six new members who joined our committee this year. we worked together in committee and we did not allow our differences on this bill to

divide us. we reported this bill unanimously. and the charlie armstrong in the senate legislative counsels after drafting hundreds of amendments to this bill every year, many, many special thanks to you. our committee staff members, if -- if they're still here, many of them are, many still in russell working tonight, you deserve much, much more than heart-felt thanks. that's all we can offer for you right now. led by rick, the committee staff director, and joe, our republican staff director, our staff unselfishly sacrifices an work incredibly hard on this bill. so please go home now, staff. enjoy a couple of hours, no more than three, please, of sleep and possibly a nonmicrowave meal for a change. we know you'll be back at 6:00 in the morning fully rested and ready to tackle conference. without your talent, ability and

teamwork, we couldn't be where we are now. so, mr. president, they deserve our recognition and as a tribute to their professionalism and as an expression of our gratitude, i ask that their names appear in the record and they are in a list that i would ask unanimous consent that they be made a part of the record. the presiding officer: without objection. mr. levin: i thank the presiding officer and a special thanks to my dear friend, the senator from arizona, senator mccain, who has amazing energy and passion for this subject. and it's a an inspiration to all of us that he serves on the armed services committee. mr. mccain: mr. president? the presiding officer: the senator from arizona. mr. mccain: i would like to thank senate levin and his staff and both sides of the aisle. thank senator levin for his patience, perseverence, knowledge, and his commitment to the security