and senator mccain. the presiding officer: the clerk will report. the clerk: the senator from michigan, mr. levin, for himself and mr. mccain proposes an amendment numbered 1092. at the end of subtitle c of title 8 add the following -- mr. levin: mr. president, i now would ask unanimous consent that further reading be dispensed with. the presiding officer: without objection. mr. levin: i would call for the regular order with respect to the amendment. the presiding officer: the amendment is now pending. mr. levin: is it now pending first in line? poeup it is pending -- the presiding officer: it is pending first in line. mr. levin: i thank the presiding officer. i want to make one quick comment about this amendment. this is a bipartisan amendment that addresses the massive issue created by counterfeit parts getting into the defense supply system. it is something which our staffs have investigated heavily. senator mccain and i are introducing this bipartisan amendment. we hope it has strong support in

this senate, and it will address a critically important issue which we have now seen in the defense supply system, with millions of counterfeit parts, mainly from china, getting into our defense system, threatening the security of our troops, the effectiveness of their mission and costing the taxpayers a heck of a lot of money as well. and i have already yielded the floor, but with the permission of my friend from arizona, i have 11 unanimous consent requests for committees to meet today during today's session of the senate. they have the approval of the majority and minority leaders. i would ask unanimous consent these requests be agreed to and that these requests be printed in the record. the presiding officer: without objection, so ordered. mr. levin: and i also ask unanimous consent that captain michael lynch, a u.s. army aviation officer who is currently serving as a defense fellow be granted floor privileges for the duration of

the national defense authorization act of -- for 2012. this is a defense fellow in senator reid's office. the presiding officer: without objection, so ordered. mr. levin: thank you. the presiding officer: the senior senator from arizona is recognized. mr. mccain: mr. president, i ask unanimous consent to engage in a brief colloquy with chairman senator levin. the presiding officer: without objection. mr. mccain: first of all, madam president, i would like to again thank you for the -- mr. chairman, i would like to thank you for the long years of work we have had together and that which is coming together after a long year of obstacles. i want to thank you for the spirit of bipartisanship which is a long tradition in the committee which was practiced by our predecessors. obviously, we know on occasion we have differences of views and sometimes we especially need to express those in perhaps a

passionate manner, but the fact is at the end of the day, we continue to come together and work together for the good of this nation's security. and the reason why i ask senator levin is because i think our colleagues ought to understand the context of this bill. first of all, it is a new bill and it has a reduction of some $20 billion in authorization in order to keep with the budget control act, and a total now of $27 billion reduction, which is a significant amount of money. and it seems to me that our colleagues should understand that this $9.8 billion cut in defense procurement, $3.5 billion cut in research development tests and evaluation, $1.6 billion cut in military construction, $6.7 billion in overseas, these are significant deficit reductis already in what we had originally envisioned as necessary for our nation's defense capability.

and so i would ask the chairman, these are painful decisions that we had to make, and those that somehow believe that it's business as usual in the department of defense and on the defense authorization, it simply is not correct. we have already made significant reductions, i would ask my colleague. mr. levin: i agree with my friend from arizona. we literally worked months to get to the first reduction which was in our original bill and then when the congress adopted the deficit reduction act which required additional reductions, these are very, very difficult decisions to make because it in many cases will increase risks which we don't want to increase, but nonetheless have got to accept some additional degree of risk in some of our programs in order to do the fiscally responsible thing. and i agree with my friend. mr. mccain: could i ask my

colleague also, just two more points. one is that we also have planned for an additional well over $400 billion reductions in the next decade, and those will again entail at some point an increase in risk. so in that context, i would appreciate again the expression of the chairman's view of a draconian cut that would take place as a result of sequestration. the secretary of defense has testified before our committee of the -- quote -- devastating effects as have the majority -- excuse me -- our military leaders. mr. levin: these cuts that would result from sequestration are massive, not just in defense but also in nondefense discretionary areas. the purpose of that threat is to hopefully avoid it -- prevent it from taking place. it's like any other sword of

damocles holding over people's heads, our heads, that if we don't reach some kind of an agreement with our special committee, our group of 12 that are working so hard to come up with a reduction that will meet the requirements of the bill, that we would then have a sequestration, across-the-board cuts which are not the rational way to budget, are massive, draconian to use the word which the senator from arizona quoted, and that's true in both defense and nondefense. but again, the purpose of having those -- of having that sequestration process in place is hopefully an incentive so that it doesn't take place. mr. mccain: finally, i would ask the chairman, we have met the requirements of the appropriations committee with this additional $20 billion reduction in this -- quote --

new legislation. then it seems that it would be only appropriate that the appropriations committee meet the provisions of authorization that are in the authorization bill. in other words, there are, i'm told, some differences in the appropriations committee's bill as far as what authorizing committee's responsibilities are. i hope that the appropriations committee would address those differences in deference to our role as authorizers. mr. levin: that's always our hope. it doesn't work out that way, the way we would like, frequently, but it is always our hope and the way it should work at least theoretically around here is that that should be what the appropriators do. now, it has not worked out that way. i don't know how many recent years you and i have had some discussions about that. when i first got here many years ago, that was an issue.

it has not been resolved, but i think what the senator sets out is the hope that the appropriators would look at our authorization and follow our authorizations. mr. mccain: i thank -- i thank the senator from michigan. i just would finally like to comment, i am more than hoping, i intend to identify those areas of difference between the authorizing committee and the appropriations committee and fully expect the appropriating committee, unless there is some overriding reason to conform with the authorization bill. and again, i want to thank senator levin and his staff for the work that we are doing. i hope we will be allowed to consider -- i want to thank the leadership. i want to thank senator reid for bringing the bill to the floor. i know he has a lot of important priorities, but i believe that it's very important that we continue an over half-century

tradition of the senate taking up, passing and then finally legislating -- seeing enacted into law the defense authorization bill. i think it's a valid statement to say that there is no greater priority that the people's representatives have than to ensure the security -- take every measure we can possibly to ensure the security of our nation and the men and women who serve in it. and this legislation is a result of literally thousands of hours of discussion, debate, hearings, input to make sure that we do the very best job we can to protect our nation. and as i mentioned earlier, with the committee's action earlier this week, we have ensured that our authorization top line of $526 billion for the base defense budget complies with the

budget allocation levels adopted by the senate appropriations committee for fiscal year 2012. we have worked with the administration over the past several weeks to address their concerns with the detainee provisions in our bill. we understand that the administration is still not satisfied with the committee work. we have made many committee clarifications, modifications at the request of the administration to the detainee provisions as they were reported from the committee in june, and as a result, we were able to report out the bill again this s week with an overwhelming bipartisan vote of 26-0. we will be glad to continue our discussions with the administration. i am grateful that the administration reached out to us and that because of that discussion and negotiations with mr. brennan and others from the white house that we were able to make some changes. i regret that they haven't been

sufficient to overcome their objections, but we will continue to work with them. this is a very, very important issue, obviously. all of us goal is to make sure that members of terrorist organizations, specifically al qaeda, do not return to the fight and that we make sure that we are able to treat al qaeda members who are captured in keeping with international law, but at the same time in keeping with the priority interests of america's national security. so i understand there will be an amendment on that issue or amendments. i look forward to debating and discussing that aspect. whatever additional concerns that may remain with the detainee provisions should be dealt with as it will be through debate and amendment. but importantly, all the aspects

of this bill are of such vital importance to supporting the men and women of our armed forces and their families. we have already started to work on amendments that we know our colleagues are preparing to offer on this bill, and i encourage all my colleagues to file their germane amendments as quickly as possible. obviously, as i repeat, the legislation is extremely important to our nation's defense to the men and women in uniform. i know all of my colleagues appreciate that fact. i would hope this year unlike in previous years that we will not add to this bill policy riders that are not relevant to the bill. the committee bill before the senate is the culmination of 11 months of hard work conducted through 71 hearings and meetings this year on the full range of national security priorities and issues. this tradition of deliberate review and oversight is typical of what the defense authorization bill has provided our nation's military for over 50 years without fail.

the committee's priorities this year and every year start with our bipartisan commitment to improve the quality of life for the men and women of the all-volunteer force -- active duty, national guard and reserves, and their families, through fair pay, improved policies, benefits commensurate with the sacrifices of their service and by addressing the needs of the wounded, ill and injured service members and their families. to do these things, this bill authorizes a 1.6% across-the-board pay raise for all members of the uniformed services, authorizes pay incentives for recruitment and retention of our most highly skilled and highly sought after men and women and improves the uniform code of military justice to more effectively respond to accusations of certain types of misconduct. this bill provides essential resources, training, technology, equipment and force protection our military needs to succeed in

their missions, including authorizing a 6% in funding for our enormously important professional and dedicated special operations forces who play such a large role in our counterterrorism operations worldwide and over $2.4 billion for the department of defense's counterimproved explosive device, counter-i.e.d. activities. i cannot overemphasize the importance of the timely funding of these counter-i.e.d. funds given the increase in this kind of attack against our troops first in iraq and now in afghanistan. the bill enhances the capability of our military and that of our allies to conduct counterinsurgency operations, including the authority to provide support to those aiding u.s. special operations and combating terrorism in yemen and east africa, authorization of

$400 million for the commander's emergency response program known as cerp in afghanistan, an authorization of $11.2 billion to train and equip the afghan security forces for the security of the afghan people. the bill strengthens and accelerates nuclear nonproliferation programs while maintaining a credible nuclear deterrent, reducing the number of nuclear weapons and ensuring the safety, security and reliability of the nuclear stockpile, the delivery systems and the nuclear infrastructure. in this regard the bill authorizes $1.1 billion to continue development of the ohio-class submarine replacement program to modernize the sea-based leg of the nuclear triad of delivery platforms. it improves our ability to focus on terrorism and cyber warfare. in part by requiring d.o.d. to

acquire and incorporate capabilities for previously unknown cyber attacks and an operational need fund, to allow the department to rapidly field new systems in response to battlefield requirements. it authorizes d.o.d. to immediately void a contract if a contractor has been determined by the commander u.s. central command to be actively opposing u.s. forces in afghanistan. a related provision would provide enhanced audit authority to assist in the enforcement of this provision. it authorizes over $13 billion for new construction of critical facility projects that have a direct impact on the readiness and operations of our military while also providing much-needed construction jobs in a struggling economy. in contrast to these enhams and new authorities, the committee also had to make some very difficult decisions. the president's budget request

of $553 billion was cut by nearly $27 billion in recognition of the difficult budget situation our country faces. these difficult funding reductions include $10 billion cut in the operation and maintenance accounts for the military services used to fund readiness and training activities. this was done mainly by scaling back the growth in service contracts while also reducing serp accounts for daily operating activities and training. a $9.8 billion cut in defense procurement accounts for programs that had more money than could be put efficiently under contract this year and programs not able to meet production milestones. a $3.5 billion cut in the research, development, test and evaluation accounts by examining the performance of hundreds of programs and identifying those that showed excessive cost growth or a lack of performance.

$1.6 billion in -- cut in military construction projects, mostly at overseas locations to allow for a review of our u.s. military force posture worldwide. in addition, the bill cuts $6.7 billion from the president's budget request of $118 billion for overseas contingent operations known as oco, due to a forecast of reduced operations in afghanistan during 2012. these cuts are the first step in what will be an extremely critical debate. on the right amount of defense spending over the next ten years. we will need to make some very difficult decisions that will undoubtedly increase risk as we decide whether to continue or terminate costly and in some cases troubled and overdue programs. we will need an informed and honest debate on which defense

requirements and capabilities most effectively and efficiently protect the full range of our nation's interests. as such, this committee's review on curtailment of troubled, wasteful or unnecessary programs is not only essential to ensure proper stewardship of taxpayers' funds, but also true to the intent of preserving funds for more fighter priorities. along these lines, this bill proposes to cut $452 million for the enhanced medium altitude recons glans and surveillance system due to program delays. $192 million from related brigade combat team modernization projects due to a program termination by the army. $200 million for the joint tactical radio system due to program delays. $406 million for the medium extended air defense system known as meads which is a

high-risk joint program for air defense with germany and italy which the army has decided not to deploy operationally. $500 million for the joint tactical radio system called jitters, such as a result of program execution and cost concerns. $244 million for war fighter information network tactical. $173 million for ground soldier systems net warrior. $157 million for hmmwv recapitalization programs. $108.6 million for unnecessary post-production funding for the c-17 program. $233 million due to slow execution in the development of the family of advanced line of sight terminals used in con junction with the advanced extremely high frequency satellite systems. $300 million by curtailing our authority for long-term lease of

a commercial satellite by the defense 230rgs systems agency due to lack of analysis of alternatives. $105 million in connection with delays in contract awards associated with g.p.s. systems under development. even after this long list of cuts to troubled programs, i would have liked to have done more. and i want to point out that in the days when we were increasing defense spending, it was one thing not to be in sync with the appropriations committee. in the days of reductions in defense spending, it is absolutely vital that the appropriations committee follow the guidance and authorization of the authorizing committee. and i intend to do everything in my power to make sure that that happens. now, an example of what i would have liked to have seen more is the joint strike fighter or the f-35 program. i offered an amendment during the committee's markup that would have put the program on a

one-year probation if the costs under the fixed price contract for the fourth lot of early production aircraft grew by more than 10% over their target cost by the end of the year. my goal was to send a strong, simple, and powerful messenger to the pentagon and lockheed martin, a message we will no longer continue down the road of excessive cost growth and schedule slips on this program just because other alternatives are hard to come by. we now are faced with the prospect of the first trillion-dollar weapon system in history which was certainly not originally designed to do so. as it turned out, the amendment didn't go forward as a result of a tie vote and an alternative provision offered by the chairman, chairman levin, will instead require that the fifth lot of early production f-35 aircraft be procured under a fixed price contract and that lockheed martin bear the entire responsibility for any cost

overrun other than certain limited costs needed to make specific changes that the government requests. because i feel that it is essential to use fixed price -- fixed-price contracts for large pentagon weapons programs, i supported the chairman's amendment during the markup and i support it now. today --, today, as we speak, the pentagon is negotiating with lockheed martin on who will bear the cost of changes to the design and manufacturing of the aircraft that could come down the road as a result of thousands of hours of flight testing that lie ahead. in this sense, the excessive overlap between development and production that is called concurrency is now coming home to roost. the defense department quite rightly says it will not sign any contract for the next lot until a lockheed martin agrees to pay a reasonable share of

these, quote, concurrency costs and lockheed martin doesn't want to bear the risk of new discoveries. let me be clear. i strongly support the department of defense position. i think it reflects exactly the congressional view reflected in our markup. as we agree to buy more early production jets, while most of the development testing is yet to be done, lockheed martin must be held increasingly accountable for cost overruns that come as a result of wringing out necessary changes in the design and manufacturing process for this incredibly expensive aircraft. how does this legislation affect pending negotiations? it means that on the next production lot, congress expects the department to negotiate a fixed-price contract that requires lockheed martin to assume an increased share of any cost recovery runs. it requires a sighing price for

the lot that is lower than the last lot purchased. it ensures a shared responsibility for reasonable concurrency cost increases. in other words, the deal we negotiate on this next production lot must be at least as good if not better than the deal we negotiated under the previous one. otherwise, we're moving in the wrong direction and it will only be a matter of time before the american people and the u.s. congress lose faith with the f-35 program, which is already the most expensive weapons program in the history of this country. i look forward to having the opportunity to address this and other significant national security policies related to detainee policies, cyber operations, iranian aggression, pakistan, acquisition reform, and the way we buy space programs and launch services, further limiting the use of fixed-price contracts for

procurement, reducing the cost of military health care, counterfeit parts and the future of our military in the face of major budget reductions. on the issue of counterfeit parts, i want to commend the initiative of the chairman to address this critical issue. the proliferation of counterfeit parts threatens the safety of our men and women in uniform, our national security, and our economy. we cannot risk a ballistic missile interceptor missing its target or a helicopter target unable to fire his or her weapons or any other system failure all because of a counterfeit electronic part. nor can we keep affording the hundreds of thousands, even millions of dollars to fix the systems that they penetrate. our committee has been conducting an investigation for the past year, and we will have an amendment and there's one already pending as a result of

this outstanding work. i also plan to offer amendments that will start us on the course of an updated plan for u.s. military forces in the pacific theater. the current plan is to move 8,700 marines, 9,000 family members from their current bases on okinawa to guam, is now estimated to require spending between $18 billion and $23 billion on guam to build up its capabilities as a permanent base. this is an increase of well over $10 billion from the original estimate, and i believe the price tag will continue to rise. as a result, i along with chairman levin and senator webb and other colleagues view this plan as unworkable, unaffordable and an unnecessary strain on the himself -- on the relations between our government and the government of japan. recognizing this strain, both the armed services committee and the military construction and

veterans' affairs committee of the appropriations committee have stopped funding guam military construction projects until the department of defense provides a master plan and considers alternatives that may provide it the needed marine forward presence at much less expense. let's face it -- we simply are at a level that we cannot afford under the present plan. and i also understand that our relations with japan are very important in this whole move. we cannot send a signal that america is leaving the area. in fact, i was very pleased to see the agreement that the president of the united states signed with the prime minimum stare of australia just -- prime minister of australia just yesterday that provides for a joint operating base in australia but we must understand the delicacy of our relations with the government and people of japan. especially in the time of rising

concern about some of the behavior that has been exhibited by the chinese. i believe we should -- i believe we need to take advantage of this pause to convene a congressional commission of experts in asian affairs with multilateral input to review our national security interests in the pacific region over the next 30 years, and charter that commission to propose a posture for our military forces that will both strengthen our traditional alliances while offering opportunities for cooperative efforts with emerging partners and allies to solidify our mutual interests in the region. in the face of the data about the scope and timing of the pacific realignments, we also need to ensure that this pause and potentially unnecessary spending is extended in 2012 to the use of defense funds to activities that have no direct impact on military functions or missions on guam. such as the purchase of civilian school buses and, an artifact

repository and mental health clinic in guam. these projects may have legitimate value to the government of guam to address current needs for the citizens of guam. they simply are not my idea of top defense priorities in the fiscal environment we face. in addition, despite the efforts of congress to ban earmarks and special interest projects, this bill contains almost $850 million in authorizations of funding for items and programs not requested by the administration. the full senate needs to consider the merits of these unrequested spending items and to determine whether they are top defense priorities in today's fiscal environment. the bill also cuts $330 million for private-sector care under the defense health program based on an assessment of historical underexecution rates. this is the first step in

important progress in helping the department of defense control spiraling health care costs. but it's another challenge we face in this bill we could have and should have done more. secretary panetta, speaking at the woodrow wilson center in october of this year, said -- quote -- "the fiscal reality facing us means that we also have to look at the growth in personnel costs which are a major driver of budget growth and are, simply put, on an unsustainable course." the secretary concludes, "if we fail to address these costs, then we won't be able to afford the training and equipment our troops need in order to succeed on the battlefield. providing the department with the authority to adjust tricare prime enrollment fees based on a realistic index of national health expenditures per capita, as the administration requested, would have been the right thing to do. instead, this bill limits all

future enrollment fee increases to the cost-of-living adjustment for military retired pay. military retirees and their families deserve the best possible care in return for a career of military service and nothing less. but we cannot ignore the fact that health care costs will undermine the combat capability and training and readiness of our military if we don't begin to control the cost growth now. our committee reflects -- our committee report reflects the desire of the committee to review options for phasing in more realistic future adjustments beginning in fiscal year 2014, and that is exactly what we must do. i want to emphasize a point he here. i am solemnly aware of the commitment this nation has made to the men and women who have served in the military regarding health care and benefits. this nation has made promises for many years and has

endeavored to keep those promises. but we are faced with a set of dire circumstances regarding the long-term viability of entitlement programs that threatens to undermine a whole range of promises we've made to every american. i'm also keenly aware that in this unprecedented fiscal crisis facing this country, providing for our national defense is the most important responsibility that our or any government has. it is our nation's insurance policy. and in a world that is more complex and threatening as i have ever seen, we cannot allow arbitrary budget arithmetic to drive our defense strategy and spending. we have to look at every program to determine what risks we can afford to take without risking the lives and welfare of those brave young americans who volunteer to serve in the military. as such, some of the defense

cuts being discussed, particularly as a result of sequestration, would do grave harm to our military and our nation's security. the immediate impact of a sequester, according to secretary panetta, who previously served as chairman of the house budget committee and chief of staff to president bill clinton, could be a 23% across-the-board cut to our nation's defense programs, shipbuilding and construction projects would have to be curtailed, civilian personnel and contractors would have to be furloughed. the end results of these costs after ten years would be the smallest ground force since 19 1940, the smallest number of ships since 1915, and the smallest air force in its history. the united states would face -- quote -- "substantial risk" of not being able to meet our defense needs. defense spending isn't what's

sinking this country into fiscal crisis, and if congress and the president act on that flawed assumption, they will create a situation that is truly an fordable: the decline of u.s. military power and a hollow military mr. mccain: we can't we can't let this happen. despite the decline in defense spending, the growing demands we face around the world demand a strong and resolute united states military that continues as the first line of protection for peace, freedom, justice and democracy around the world. mr. mccain: i've had the privilege of a long career in public service, but in all my years, i don't think i've ever seen a geopolitical environment as complex and as multidimensional as the one we face today. this will only increase in the years to come. the rise of china is one of the most seminal events in world history but it's not an isolated

occurrence. other nations across the asia-pacific, most notably india, are also growing rapidly and using their newfound wealth to enhance their comprehensive national power, especially new military capabilities. the challenge for the united states is this: how do we as a historic pacific power use the next few years, despite the necessary cuts that will have to be made in our defense spending, to make smart, strategic investments that set us up to shape the future of the coming pacific century? that means a more geographically dispersed and operational resilient regional force postu posture. it means developing new operational concepts, such as the department -- defense department's air-sea battle concept, which aims to enable us to operate effectively in an

antiaccess and area denial environment. it means taking advantage of the many opportunities we face to enhance the capabilities and interoperability of our alliances and partnerships. and perhaps most of all, it means making some difficult and at times painful choices about where we can go, what we do, and what we can do without. mr. mccain: we all must take responsibility for these choic choices. when we talk about our increasing focus the asia-pacific region, what this does not mean and cannot mean is a lack of commitment to the broader middle east. after all, the united states still has a capacity to do at least two things at once and we cannot afford to allow that to change. the middle east and north africa are undergoing perhaps the most consequential period of upheaval since the collapse of the

ottoman empire. governments with long patterns of authoritarian control, some of them our partners, are falling under the popular pressure of millions of citizens who desire dignity, freedom and opportunity. our old and dear ally, israel, faces a more tumultuous and potentially threatening position than it has in decades. at the same time, new regional leaders, such as turkey and qatar, and the u.a.e. are playing a more confident and assertive role in shaping the events of the region. despite the failure of leadership that led us to the full withdrawal of u.s. troops in iraq, the success of that country remains a critical national security interest of the united states. and we must remain committed to iraq's success and stability. and all the while -- all the while -- the iranian regime

continues to threaten the security of the region and that of the united states. amid all of these complicated and important global trends, it is absolutely vital that the members of this body be allowed to engage in a fullsome and serious debate about the vital national security interests contained in this bill. i hope there will be a generous opportunity to offer amendments and debate them. i'm confident that we can do this while still moving diligently and quickly along. we have given the majority leader the commitment that we will work to ensure senate consideration of this bill on an expedited basis. this chamber must have the opportunity to complete this bill and then to send it to the conference with the house. we need to have a conference report before the end of the year. we cannot continue to place critical authorizations in appropriations bills or continuing resolutions because

we cannot get to the defense authorization bill done in a timely manner. as an example, this bill includes extensions for several important counternarcotics authorities that expired at the end of fiscal year 2011. the expiration of these authorities has had a direct impact on d.o.d. efforts to combat illicit trafficking networks whose proceeds often directly fund the activities of terrorists and other criminal organizations that pose a significant threat to u.s. security interests. timely passage of the defense authorization bill will ensure that these counternarcotics missions can continue in places such as afghanistan, colombia, and along our southern border. i, for one, am proud of the 9% approval rating of the performance of congress, as determined by various polls. they are right. we need to do more for the

american people. i hope we can reverse this downward trend in our approval by tackling the critical national security challenges facing this country in an efficient and effective manner. i look forward to working with senator levin to pass this bill as quickly as possible and get it into law for the benefit of our military and our country. and i would ask our colleagues, as we usually do, to get their amendments to us so that we can have them considered and have as prompt action as possible on them. mr. president, i yield the flo floor. madam president, i yield the floor. the presiding officer: the senator from michigan. mr. levin: first, let me thank my friend from arizona for his great work on this bill and the way in which he and our members,

our brothers and sisters on the committee, including the presiding officer, worked so well together on a bipartisan basis, and the way our staffs worked together. we are now in a position where we can consider amendments, as the senator from arizona said. and pending the receipt of amendments for our considerati consideration, i would note the absence of a quorum. the presiding officer: the clerk will call the roll. mri will withhold. mr. mccain: the pending business before the senate? the presiding officer: the senate is in a quorum call. mr. mccain: i ask unanimous consent that further proceedings you arunder the quorum call be suspended and ask what the business before the senate is. the presiding officer: without objection. the pending question is the mccain-levin amendment numbered 1092. mr. mccain: i think that's the levin-mccain amendment. could i -- the presiding officer: that's

correct. mr. mccain: i'd like to discuss that amendment and that is -- this amendment is the result of the effort made by our committee staff and other members of the committee to identify a very, very serious problem that can affect our nation's security and that is the counterfeiting of critical components that are -- end up in our defense systems. in cases -- in some cases helicopter, in some case aircraft, in some case missiles. literally every high-tech aspect of -- of our nation's defense systems. now, we traced in hearings under senator levin's leadership the way that through different shell companies these parts that originate in china that are counterfeit that end up through

various establishments and then by our major parts suppliers and then into our weapons systems. and there already have been occasions where there have been systems failures and there has also been situations which have inhibited or reduced readiness and further capabilities. so far, thank god, it has not resulted in any casualties or deaths, but there is very little doubt that -- that this counterfeiting is a -- poses a serious threat. and some -- according to our findings, some 70% of these counterfeit parts come from china. it's got to be stopped. we don't know, to tell you the -- our colleagues the truth, if all the parts of this amendment will stop it, because it's a huge money-making business, but i think these initial -- this initial

amendment will move us in the right direction to try to bring at least under some control the flow of these counterfeit parts into our nation's defense. so i hope that my colleagues, that we could adopt this amendment as rapidly as possible and move on to the next one. i know of no one who is -- objects to it. i know that there are other members of the committee who were involved in the examination of this situation and would -- they would like to come and speak on it. but i would recommend to the chairman that we could move on this amendment as quickly as possible. the presiding officer: the senator from michigan. mr. levin: let me thank the senator from arizona. i very briefly described this amendment before. i will take a few minutes now to describe it in some greater length because it's very significant. it's going to totally change the

way we buy replacement parts for our weapons systems to avoid the absurdity that we have so many counterfeit parts, including used parts where we need new parts on these weapons systems. the investigative staff of our committee looked at just a slice of the defense chain for getting replacement parts, and in that one slice of that supply chain, they identify 1,800 examples of where counterfeit parts were in our weapons systems. and those are 1,800 different examples, but they involve millions of parts. and what happens here -- and this is mostly -- these originate from china, is that used computers, what they call

e-waste, sent back to china where they are pulled apart, the electronic parts are then washed frequently in a stream, and there are pictures of these parts being washed in streams, dried out in the open, and then they go mainly to one place in china where they are -- the surfaces of these parts are sanded down, new surface put on them, a number placed on them to make them look like new parts. and then those parts through various ways get into the supply chain. that's what we have got to stop. this is dangerous for our troops. it jeopardizes their missions. there are about, we believe, that we are losing approximately 11,000 american jobs that would be making these parts if they weren't counterfeited overseas.

our semiconductor manufacturers -- and that's just one estimate by the semiconduct or industry association -- lose about $7.5 billion in lost revenue. so there is a safety issue, an emission threat issue here first and foremost, but there is also -- this is an unnecessary and unfair blow to the american economy and american jobs. this is what this bill does, or this amendment does. we're requiring the secretary of homeland security to establish a program of enhanced inspection of electronic parts imported from any country that is determined by the secretary of defense to be a significant source of counterfeit parts in the d.o.d. supply chain. what we're also doing in this amendment is to require the department of defense and their suppliers to purchase electronic

parts from original equipment manufacturers and their authorized dealers or from trusted suppliers who meet established standards for detecting and avoiding counterfeit parts. it requires -- it establishes requirements for notification, inspection, testing and authentication of electronic parts that are not available from such suppliers. it requires the department of defense and d.o.d. contractors who become aware of counterfeit parts in the supply chain to provide written notification to the department of defense, the inspector general, the contracting officer and the government industry data exchange program, gidep, or a similar program designated by the secretary of defense. the amendment would authorize customs to share information with original component manufacturers from electronic parts inspected at the border just to the extent needed to determine whether an item is a

counterfeit. it requires large department of defense contractors to establish systems for detecting and avoiding counterfeit parts in their supply chains, and it authorizes the reduction of contract payments to contractors that fail to develop adequate systems. the amendment requires the department of defense to adopt policies and procedures for detecting and avoiding counterfeit parts in its own direct much purchases, and for assessing and acting on reports from counterfeit parts from department of defense officials and d.o.d. contractors. the amendment authorizes the suspension and debarment of contractors who repeatedly failed to detect and avoid counterfeit parts or otherwise fail to exercise due diligence in the detection and avoidance of counterfeit parts. the amendment also includes a bill that senator whitehouse

introduced that was passed out of the judiciary committee, a bill to toughen criminal sentences for counterfeiting military goods or services. we require the department of defense to define the term counterfeit part, which is a critical and long overdue step toward getting a handle on this problem. and we also would make it clear that it's the supplier of the counterfeit part who is going to pay for its replacement and not the taxpayers of the united states. now, madam president, this amendment touches the jurisdiction of two or three other committees, and so what we have done is we have sent this amendment to the other committees to try to clear this amendment. the judiciary committee is one, i think homeland security is another, and i believe finance is a third. we are hoping that we can get prompt, positive response, but

we obviously want to make sure that those other committees are consulted and that they concur, and if not, we would have to then make changes in this -- the amendment probably in order to accommodate what those concerns are, but there is some jurisdictional issues here which we are currently working out. i had an opportunity this morning with senator mccain to talk to senator leahy who is before our committee introducing a nominee to alert him to the fact that we had this amendment which touched on the jurisdiction of his committee, and i hope by now that the language of the amendment has been shared with the staffs of those three committees, and i think i have them all. we intend to do exactly that. so to get to the point -- mr. mccain: will the senator yield for a question? mr. levin: sure. mr. mccain: and isn't it also true, as you mention, i would like to emphasize, that senator white house is combat -- senator whitehouse's combating military

act is part of this bill. at least that would satisfy the judiciary. i see the distinguished senator from iowa here. i don't know if he is -- he is not on -- going to address this issue. but i hope that we can get the committees of jurisdiction involved in this as quickly as possible. i don't think it's an issue that we should delay too much longer. mr. levin: we do need to consult with those committees. that is under way. i'm just hopeful that the committees and their leaders would take a prompt look at this and see if there is any problem with the language in here from the perspective of their committees. mr. mccain: if the chairman will yield just very briefly. so we won't voice vote this until we get the signoff of the relevant committees, is that correct? mr. levin: that is correct. a senator: madam president.

i ask to address the senate as if in morning business. the presiding officer: without objection. mr. grassley: i'm pleased that the supreme court has agreed to hear the arguments in three cases challenging the constitutionally of the health care reform law that congress passed two years ago. i appreciate that the obama administration asked the supreme court to hear this question in light of the importance of these cases, i have written to chief justice roberts asking him to provide live audio and video coverage of the oral arguments. the constitutionality of the health care law was the subject of a hearing in the judiciary committee last february. regrettably, the judiciary committee would not hold such a hearing until after the bill became law. those who voted for that law

should have given these constitutional questions more attention before they voted for the bill. today, i would like to discuss the issues that are presented in the cases focusing primarily on the constitutionality of the individual mandate and another recent appellate court ruling on that topic. when congress passed this law last year, we were told that it would be very popular and truly and clearly constitutional. neither is true. polls show that the law remains unpopular. the law's individual mandate provision requires nearly all americans who do not otherwise have health insurance to purchase such insurance or to pay a monetary penalty.

that provision also raises serious constitutional questions about the scope of congressional power to regulate interstate commerce. normally, the supreme court grants only one hour of oral arguments. here, the constitutional questions associated with the bill are so difficult that the supreme court has decided to devote five and one half hours to oral arguments. the answers to the questions are not clear. besides considering the commerce clause question, the court will also hear oral arguments on three other questions. the first is severability. will the remainder of the law stand if the individual mandate is struck down? normally, the court does not even consider severability until it has decided that a part of the statute is, in fact,

constitutional. the fact that at least four justices have concerned -- have voted to hear arguments on this question should cause uneasiness among those who are confident that the law is constitutional. the second issue is the constitutionality of the law's expansion of the medicaid program upon the states. and the third is whether procedurally the law can be challenged in the courts before it actually takes effect. there is always the possibility that after all the briefs, all the arguments and all the public expectations, that the supreme court will finally resolve whether the health care law is, in fact, constitutional. the court could determine, contrarywise, that it's just too soon for it to rule on the issue because the law hasn't fully

gone into effect. just before the supreme court agreed to hear these cases, the united states court of appeals for the d.c. circuit ruled that the individual mandate was within the constitutional power to regulate interstate commerce. that court concludeed this result followed from existing supreme court decisions. it also ruled that congress could therefore require private individuals to purchase any product that congress chose. the majority opinion was written by judge lawrence silverman. now, i respect judge silverman, but i strongly dispute his ruling and would like to take this opportunity to outline my disagreements with judge silverman. i think that judge silverman has

selectively read supreme court decisions. for instance, he noted that no supreme court has ever held the commerce clause authority is limited to people who are currently engaging in an activity that involves interstate commerce, but it is equally true that no supreme court case has ever held that equally true that no supreme jenna: all right, quick newsroom consensus s pizza a vegetable? jon: no. jenna: is it a vegetable? jon: it's good.it jenna: there's a new bill looking to classify it as aman vegetable. >> reporter: that's right. the it's making its way through congress, and it does classify peculiar when compounded by his omission of the supreme court's repeated skepticism of congressional claims that it can

exercise a power that it never before discovered in more than 200 years of our constitutional history. the court has always been wary when a new power is claimed. judge silberman recognized that the power claimed here to require that the purchase of a product or service is novel, but he did not continue with that next step that the supreme court would have taken. instead, the judge concluded that the argument against the power was equally novel. i think it is common sense no one would have made such an argument if congress had not claimed this power. for instance, when the supreme court in the plot case ruled that congress could not reinstate a statute of limitations once it had

expired, it pointed out that congress had never done that before. it did not belittle the argument against the practice by characterizing it as judge silberman did as novel. in fact, the argument against the novel claim -- power, won. judge silberman stated that congress cannot regulate noneconomic behavior based on a weak link to interstate commerce and he ruled that congress cannot regulate intrastate economic activity that in thing a a gatt does not -- aggregate does not substantially affect interstate commerce. agreeing with judge silberman, so far, so good. but then he found that decisions whether to purchase health insurance, but then he found that decisions whether to

purchase health insurance do affect interstate commerce. however, the supreme court has never ruled that congress can regulate decisions -- in other words, thoughts -- on whether or not to purchase a good or service. the court for decades has referred to the power of congress to regulate activities that affect interstate commerce. since congress cannot regulate noneconomic activities, or intrastate economic activities that have no combined effect on congress, then it follows naturally that congress cannot regulate at all all inactivity like refraining from buying a product. judge silberman considered the activity argument, and in my mind, he repeated an earlier

error. he concluded that no supreme court case had ever said that existing activity was necessary for congress to exercise its power to regulate interstate commerce. but it is just as true that many supreme court cases have described the kinds of activities that congress may regulate under the commerce claws -- commerce clause. judge silberman could have just as accurately found that no supreme court case has ever held that congress has the power to regulate commerce in the absence of an activity. another way judge silberman selectively read the supreme court precedence is he could have struck down the mandate consistent with all supreme court precedents. this point was confirmed in the judiciary committee hearing that

we held in february. i asked the witnesses whether the supreme court could strike down the individual mandate without overruling any of these precedents. the republican witnesses, both responded that the court could do so. the democrat witnesses identified no cases that would have been overturned. so not only is the individual mandate unconstitutional, but the supreme court could strike it down without overturning any of its precedents. now, judge silberman disagreed. he said that the mandate here is close to the facts of the wickerd versus will burn --, wilburn, a famous decision that involved interstate commerce. the court then upheld the second

agricultural adjustment act. under that law, a farmer could be penalized for growing wheat on his own farm even for the use of his own family and livestock. and he couldn't grow that wheat if he exceeded his wheat quota. the homegrown wheat substituted for the wheat that the farmer otherwise would have had to purchase on the open market, so the court concluded that that would depress the price of wheat when combined with the actions of similar farmers all across the country. so obviously in filb ump rn that farmer affected interstate commerce. that may not make sense to us today, but it made sense in 1942 and it's still a precedent. judge silberman, however, ruled that the regulation at issue in that case is very similar to the individual mandate, which is an

enactivity. if you decide not to purchase it. and that any activity involved in the wicker case was incidentsal to simply owning a farm. now, i take issue with that. the wicker case differs conceptually from the individual mandate. farmer filburn in 1942 could could avoid the regulation by ceasing to farm, by no longer engaging in the regulated activity. in fact, that is true in all of the cases that judge silberman cited. a person can avoid laws penalizing the cultivation of marijuana by not cultivating marijuana. a person can avoid laws criminalizing child pornography by not downloading child pornography. a person can avoid public accommodation regulations by not

operating a public accommodation those are activities that congress can constitutionally regulate under the commerce clause. but that's not the case with the individual mandate. you cannot a -- avoid being subject to that mandate. if you exist, if you're alive, an individual in this country, you are regulated. and, of course, that's not the situation with respect to any other decisions that judge silberman cited. it is why he is, respectfully, wrong to find that the entrainingment on liberty are the same in those cases as they are in the individual mandate. the liberty of avoiding the regulation was preserved in the

laws at issue in those cases. liberty would prevail because you didn't have to to to abide by the law if you weren't in that business. but not so under the individual mandate under the health care reform bill. moreover, i disagree with judge silberman's assertion that it is for political reasons and not constitutional ones that it took until 2010 for congress to conclude that the constitution allows it to force people to buy goods for services. if this power truly existed, congress would have exercised it frequently and long ago. why would congress pass tax incentives to encourage people to buy hybrids if congress could simply order you or anybody else to buy hybrids? why would congress give strong

incentives for farmers not to grow wheat so as to keep the price up, when it could force people, the consumer, just simply to buy wheat. why could it not raise the price of beef by requiring vegetarians to purchase it so long as it did not require them to eat that beef? why would congress take the political heat for raising taxes when it could order some people to pay third parties for goods and services? even more sinister, members of congress could use this supposed power under the commerce clause to entrench ourselves in office. congress could require 25 the goods and services that americans must purchase be limited to those providers who contribute to the political parties of the members.

or it could prohibit purchases from those providers who contributed to the other political party. it could require people to buy houses or cars or other products in areas where the political party has its base of support. sounds a little bit like mussolini's italy, doesn't it? but the supreme court's lopez decision before the -- before the lopez decision, there were people who believed that wickerd versus filb ump n since 1942 gave congress the ability to regulate anything that congress chose to regulate. then in the lopez case the supreme court ruled that the commerce clause did not permit congress to regulate the possession of handguns near schools. at the time, there was widespread fear among liberals

that the power of congress to regulate interstate commerce would be jeopardized. those fears did not materialize. similarly, today, people like judge sill berman -- silberman believes it gives congress the ability to regulate anything it chooses and therefore the individual mandate must be upheld. i do not agree. where i give judge silberman credit is -- and if you knew the man, you'd know this is his character -- intellectual honesty. unlike the obama administration, judge silberman recognizes the truth. if congress can force people to buy health insurance, he admits it can force people to buy any goods for services. it can regulate inactivity because it can affect interstate commerce. this is consistent with the opinion of the congressional

budget office which wrote in a 1994 memorandum that -- quote -- "a mandate issuing government could lead in the extreme to a command economy in which the president and the congress dictated how much each individual and family spent on all goods or services." that's not the america that our constitution writers envisioned. at the oral arguments in the d.c. circuit, the judge asked the obama administration lawyer if congress could require americans to buy broccoli or to buy cars to keep general motors in business or to set up mandatory retirement account in place of social security. the lawyer weaseled an answering saying -- quote -- "it would

depend" -- end of quote. that is not a principled position on the supposed powers of congress which has no limit. judge silberman is a former ambassador to what used to be yugoslavia. he understands the difference between a command economy and a free-market economy. what his decision implicitly states is that wickerd versus filburn permits congress to enact a command economy with no individual freedom whatsoever. but our constitution provides protections for private property and for contracts. it establishes some form of a free market system. judge silberman's interpretation may imply that wickerd versus filburn was wrongly decided and

should be overturned but i do not believe it is necessary to overrule that decision any more than it was necessary to reverse the filb ump rn case when they decided the lopez case. apart from cases we need to go back to the basics. we should consider first principles in evaluating the constitutionality of the individual mandate in the health care reform bill. the people are sovereign in our country. the government serves the people, not the other way around. that is enforced through our constitution. and that constitution gives congress just limited powers. in the federalist papers, james madison wrote that the powers of the federal government are few

and are defined, and the powers of the states are many and are undefined. although there is much more interstate commerce in today's economy than there was in 1787, the power is still limited. if congress can require americans to purchase goods and services that congress chooses without a limiting principle, then there is no limited federal government. there would be no issue that congress could not address at the federal level. there would be no range of state powers that the federal government cannot usurp and there would be no individual economic autonomy that the federal government must respect. surely the constitution would not have been ratified if americans are understood it to permit such a result.

mr. president, the upcoming supreme court decisions on constitutionality of the individual mandate are important not only for the fate of that provision but for their effect on the powers of the federal government and for the very survival of individual economic activity. i yield the floor. mr. kirk: mr. president? the presiding officer: the senator from illinois. mr. kirk: mr. president, i'd like to speak on the pending amendment. thank you, mr. president. i rise in support of the kirk-mansion-heller and blunt amendment with regard to iran. what we know with regard to iran is they have persecuted 330,000 biays, registered their families, kicked their kids out of universities and made sure that they can do no business with the iranian government. we know they're the chief sponsors of the hezbollah, which

has had a grip on southern lebanon. we know they jumped the divide to also support the terrorist group hamas, a sunni community. we know that iran has been a state sponsor of terror as certified by presidents carter, reagan, bush, clinton, bush and obama. we know that iran recently sentenced an iranian actress to 90 lashes for appearing in an australian movie without a headdress. we know that iran recently arrested 70 of their fashion designers for crimes that i can't even manage that they would have committed. but most importantly, we know that the international atomic energy agency has certified that now iran has enriched uranium far beyond needs to run a civilian reactor program, that iranian military personnel have been involved in acquiring information on the design of nuclear weapons, that the iranians are working on the details of a warhead for their shahab-3 missile that fits all of the profiles of a nuclear weapon.

and, finally, we know, according to the attorney general of the united states, eric holder, that iran and its iranian revolutionary guards could for force -- force established a bomb platte with the mexican cartel to blow up a georgetown restaurant to kill a number of americans. even talked about possible killing senators in an effort to assassinate the saudia arabian ambassador to the united states here in washington, d.c. i think it's clear with this bipartisan amendment that we all recognize we are at a turning point and that we need new sanctions against iran. without crippling sanctions, i believe that we have then turn the international community on the path towards war likely between iran and our allies in israel. this would cause a needless loss of life. it would lead to higher energy prices for the west and increased instability here and in europe when we can least afford. therefore, we need to level

crippling sanctions, especially against the iranian central of gravity, the central bank of iran. the central bank of iran is the principal funder of the ahmadinejad regime itself. it is probably the source of funds so substantially provided to terrorist groups by iran to hamas and hezbollah. it is the central bank of iran that is supporting operations in afghanistan and iraq against our allies there. it's the central bank of iran that's a principal underlying financial support for the iranian nuclear program. and the central bank of iran that is the paymaster for the iranian revolutionary guard's force, especially their kudes force. likely the money that was planned for the zedas to carry out the bomb plot in washington, d.c. had its origin pointed with the central bank of iran. that's why 92 senators, republicans and democrats, despite these partisan times, have joined together to say that we should level this crippling

sanction against the central bank of iran. and i want to thank the 92 senators that signed this schumer-kirk letter on this. indications are that the obama administration is going to take further actions on the central bank of iran and this amendment lays out the full road map for what we should do. what does the amendment do? it's partnered after the -- patterned after the bipartisan amendment joust doptd under the authorship of -- adopted under the authorship of democratic california congressman howard berman, just unanimously adopted in the house foreign affairs committee, that says for any business, if you do business with the central bank of iran, that you cannot do business with the united states of america. now, we know that the world financial arrangements and especially oil markets are complicated instruments and so under this bipartisan amendment, we have a 180-day time clock to make sure that especially key

allies and friends of the united states can unhook from iranian oil and the financial ties that bind them to iran. this is particularly important for turkey, for sri lanka, forty i wilforty expli for greece whod all use this time of this amendment to unhook from iran. and in this, i think we are going to have a very willing partner of the government of saudi arabia. recently, obviously, focused on because the iranians tried to kill their ambassador to the united states. i will be meeting with that ambassador tomorrow and i think this amendment lays the groundwork not just to work with israel, not just to work with saudi arabia but our allies to collapse the central bank. without action, i think we turn the middle east, and especially the persian gulf, towards war. and i think that's why we should take every nonmilitary action possible to avoid that conflict, to collapse the central bang of iran. there are a number of -- to collapse the strang bank of iran. there are -- the central bank of

iran. there are a number of heroes in this. senator lieberman has been a key actor on these issues. and a key partner with me. senator gillibrand has helped out. also senator schumer, who was the coauthor of the letter on central bank of iran. senator menendez, who also has an outstanding idea of creating an iranian oil-free zone. and obviously my bipartisan partner on this and best friend in the senate, senator manchin, that joined me in the senate. joined me in a clear statement that what has happened with the iaea and the iranian nuclear program. with their record on human rights, with their record on support for terrorist, and most importantly, according to the attorney general, with a brazen attempt to attack the united states directly with this bomb plot. i urge members of this chamber to vote for this amendment. it's now pending to the national defense authorization act, because it puts a clear statement forward, levels the toughest nonmilitary sthangz we

had, helps -- sanctions that we had, helps reduce the chances for war and market instability and higher prices and has such a strong bipartisan pedigree behind it. and with that, i yield the flo floor. a senator: i suggest the absence of a quorum. the presiding officer: the clerk will call the roll.

mr. mccain: i ask that further proceedings under the quorum call be suspended. the presiding officer: without objection. mr. mccain: mr. president, i ask unanimous consent that my legislative and neighbor joe rizeka be granted floor privileges for the duration of the debate on the 2012 national defense authorization act. the presiding officer: without objection. mr. mccain: i suggest the absence of a quorum. the presiding officer: the clerk will call the roll. quorum

ms. ayotte: mr. president. the presiding officer: the senator from hall of new hampsh. ms. ayotte: i ask unanimous consent the quorum call be rescinded. the presiding officer: without objection. ms. ayotte: as the ranking member of the readiness subcommittee and a member of the armed services committee, i would like to speak for a few moments to comment on the national defense authorization act. i would like to begin by thanking the majority leader for honoring his commitment to bring the national defense authorization act to the floor for debate, amendment and passage. as leader reid pointed out this morning, this would have been the first time in a half century in which we would not have passed a national defense authorization bill. in the midst of two wars with our brave sons and daughters, husbands and wives fighting in iraq and afghanistan, with our country facing a very serious threat from radical islamist terrorists, that would have been unacceptable, so i would very

much like to thank chairman levin and ranking member mccain for their leadership. in this era that has unfortunately been characterized by gridlock and partisanship here in washington, the senate armed services committee has represented a welcome exception. the senate armed services committee has a long-enjoyed, well-deserved reputation for professionalism and bipartisanship as we work across party lines to support our troops and their families who sacrifice so much for our country to keep us safe. this bipartisan spirit is reflected by the fact that the armed services committee unanimously reported the initial defense authorization bill out of committee this summer and did so again this week after reducing the authorization levels consistent with the requirements that we need to

meet here in light of the fiscal crisis that our country faces and after revising the detainee compromise to take into consideration some of the administration's concerns. this year once again, the quality of senator levin and senator mccain's leadership is reflected in the quality of legislation the armed services committee has produced, and this bill will ensure that our war fighters have what they need to accomplish their missions, protect themselves and defend our country. i'm especially proud of the work of the readiness subcommittee. it's been a pleasure to work with chairman mccaskill and our committee made significant well-informed reductions that achieve taxpayer savings without endangering our military readiness. however, going forward, i want to raise one issue. we have to guard against excessive cuts to our readiness accounts that will leave our troops and our nation less prepared for future

contingencies, and in light of the super committee meeting here in washington, we have to come to an agreement to avoid what secretary patent has described as -- what secretary panetta has described as catastrophic if those sequestration cuts occur. i am particularly pleased that key provisions of the brown-ayotte no contracting with the enemy legislation are included in this bill. this provision will make it easier for the defense department, contracting officials in central command area operations to void contracts with contractors who unfortunately in some instances have funneled taxpayer dollars to our enemies. let me conclude by saying that i very much again appreciate the leadership and the bipartisan nature of the work done on the armed services committee. this is a very important bill that i'm very glad we're going

to take up and fully debate in the senate, and i certainly would urge my colleagues to pass this bill. i would also, mr. president, ask for unanimous consent to set aside the pending amendment and to call up amendment 1065. the presiding officer: is there okay? without objection, so ordered. the clerk will report. the clerk: the senator from new hampshire, ms. ayotte, herself and others proposes amendment numbered 1065. at end of subtitle c of title 1, add the following -- ms. ayotte: mr. president, i ask unanimous consent that the reading of the amendment be dispensed with. the presiding officer: without objection. ms. ayotte: thank you, mr. president. the amendment that i have just offered to the defense authorization bill is an amendment that i -- senator reid

reid -- senator reed from rhode island is joining me in sponsoring, and the amendment itself would allow the air force to reduce its strategic airlift aircraft inventory to what they need to meet our readiness needs, and it would save $1.2 billion of taxpayer money in the next few years without compromising the readiness that we need to protect our nation. our nation's strategic air fleet provides global air mobility to the united states military. as general raymond johns, commander of the air force mobility -- air mobility command said in his statement before a hearing before the armed services readiness subcommittee, which we -- excuse me. before the armed services committee where we had this amendment addressed, he said the strategic airlift is a national asset allowing america to

deliver hope, to fuel the fight and to save lives anywhere in the world within hours of getting the call. in order to meet this need, the united states uses c-5 and c-17's as their strat school -- strategic airlift capability, and current federal law sets the air force's minimum number of strategic airlift aircraft at 316. however, the air force and the administration when they submitted their -- the department of defense submitted their budget request made very clear that we don't need to keep the minimum requirement at 316 to meet the needs of our country, that only a minimum requirement of 301 aircraft are needed to meet the strategic airlift capacity requirements of our country. the requirement to maintain the bottom line limit of 316 is a situation where congress is

requiring the air force to maintain planes that it does not need to protect the readiness of our country, and so it was the air force that wanted this amendment to be brought forward to ensure that we could save taxpayer dollars, over a billion dollars. this is very important at a time when we are asking our military as a result of the budget control act over the next ten years to reduce spending by close to $450 billion. so they have to look at areas where we're spending money that we don't need or we're maintaining assets that we do not need to meet our readiness, and that is why i brought this amendment forward. it's a commonsense amendment that i'm so pleased that senator reed has joined me on, and i hope that my colleagues will support it. in this time where we have great fiscal challenges, but the need remains ever present to protect

our national security against those who would want to harm americans and our allies for what we believe in. we have to allow the air force and our armed forces to make sensible decisions on where they need to put resources to protect our country, and that is what this amendment does. i will say that we had a full hearing and a subcommittee of the armed services committee on the strategic airlift aircraft requirement, and the military testified uniformly that reducing the number of the strategic airlift from 316 to 301 would put us in a very strong position to meet every contingency that we can anticipate going forward including multiple contingencies around the world as well as

homeland events. so this is an area that has been studied very, very carefully, will allow us to continue to protect our country but will again save $1.2 billion in taxpayer money over the next few years. so i would urge my colleagues to support this amendment. mr. mccain: will you yield for a question? is it true the united states air force not only supports this, it's one of their very high priority? is that correct? ms. ayotte: yes, senator mccain. this is a very high priority of the air force because in this difficult time when they are making reductions, this is an area where they can meet our national security needs, but congress has actually asked the air force to maintain more planes than it needs. so this is a commonsense provision and it is very important to our air force. mr. mccain: in these times of very difficult decisions have to be made, budgetary decisions,

isn't it true also that the president's budget in 2011 had included a plan to retire 17 c-5-a's and five in 2012? ms. ayotte: yes, senator mccain. actually this amendment is consistent with the administration's budget request that they submitted for the consideration of congress, and so really this is a situation where after a careful hearing that we had in the subcommittee before the armed services committee, after the administration has submitted this request, after the air force has asked for it, it makes complete sense that we would allow them to reduce this strategic airlift capacity. mr. mccain: could i ask, really no state that these aircraft are presently stationed in would lose that mission, that the older c-5's would

convert to new c-17's. is that pretty much a conclusion you would draw from the air force's planning? ms. ayotte: that's certainly my understanding of it, senator mccain. this is not going to be a diminishment for states. this is just going to be a right sizing of the fleet, which what i'm concerned about is if we don't pass amendments like this, where the administration has asked for it, where all of the data supports that we don't need to keep the level at 316, where we can save $1.2 billion by doing it, how can we then ask our military to make significant reductions if we don't allow them to do commonsense things like this. mr. mccain: i thank the senator from new hampshire and i hope we could dispose of this amendment. i don't know if the recorded vote would be required by any of the members, but i hope we could voice vote it.

mr. levin: mr. president. the presiding officer: the senator from michigan. mr. levin: first let me thank the senator from new hampshire for not only her comments about the committee work and about me and senator mccain personally, but i want to just tell her and tell anyone within my listening voice what a valuable member of our committee she is. and she is someone who really is there all the time, and i very much value the input that she gives to us because of her -- her regular presence at our hearings and our meetings. and so i want to thank her for that as well as her comment. i also want to thank her for this amendment. it's a good amendment. i understand from my staff that -- and from what the senator said as well that there was a hearing that was held specifically on this subject and that senator reed has as

chairman had made a commitment to hold that hearing, that he is a cosponsor of the amendment of senator ayotte and as far as what everything i can see it is a good amendment, a sound amendment, does what senator mccain said as well as senator ayotte. it avoids spending money on things we can't afford to spend money on. it's that simple. so i don't know of any objection on this side and i support the amendment. the presiding officer: is there further debate on the amendment? the senator from arizona. mr. mccain: is it true we're trying to clear the amendment on both sides at the moment? mr. levin: i don't know of an objection on this side. as far as i'm concerned if the there's no further debate the chair -- the presiding officer can put the question. mr. mccain: i ask the chair that we vote. the presiding officer: is if there is no further 2008. without objection.

the amendment is agreed to. ms. ayotte: thank you very much mr. president. mr. levin: i move to reconsider that vote. the presiding officer: without objection. the senator from connecticut. mr. blumenthal: thank you, mr. president. i want to thank the chairman, senator levin, and the ranking member, senator mccain, for the immensely important work they have done on the bill we are considering, s. 1867, the defense reauthorization act. it is a massively important bill, a big bill, and i want to talk on just one part of it, seemingly a small section but a

vitally important provision of the bill that enables our department of defense to more effectively counter improvised explosive devices known as i.e.d. that have been a major source of attacks against the united states and coalition forces in the wars of iraq and afghanistan and threaten not only our troops there but all around the world, and our coalition partners. and i want to thank particularly one of my colleagues, senator bob casey, who has been a champion of these efforts against the i.d.'s or roadside bombs, for some time, and has been a leader releaptlessly and tirelessly in this effort and has included me and others, and i am proud to join him in seeking more effective measures. this summer saw the highest volume of i.e.d. incidents ever

recorded in operation enduring freedom, approximately 1,800 a month. that is a staggering and alarming number. and they continue. these devices are deadly and devastating, killing and maiming our troops and causing loss of limbs, traumatic brain injury, posttraumatic stress, and other injuries that are the signature wounds of the ongoing wars. in fact, roadside cause 60% of all casualties in afghanistan. they are the hidden killers in this war. and i speak with the urgency of an elected official who -- whose state citizens are at risk and who are returning with these signature wounds of war and whose lives and limbs can be

preserved if we act effectively. i speak as a citizen who has visited the hospitals and the troops who have come back. we all have visited our constituents and their families, their loved ones, their friends and neighbors who have been victims of these terrible weapons of destruction. most i.e.d.'s in afghanistan, in fact more than 80%, are made with materials originating in pakistan. there is no magic bullet or pan seea -- panacea to solve this problem or address the challenge. it will take a comprehensive fight. both the provisions contained in the foreign operations appropriations bill with regard to pakistan and the vital force protection equipment in the defense authorization bill are essential to shut down the sources of bombmaking materials

in pakistan and they include steps to interdict bombmaking materials at the border and provide the armor and force protection against the i.e.d. threat. roadside bombs in afghanistan are typically made with calcium ammonium nitrate, a very common fertilizer, seemingly an innocent product but capable of detonation when processed and packaged in these roadside bombs and then placed in areas where our troops go. this fertilizer from pakistan accounts for more than 80% of the e.d.'s in afghanistan. every day bags of this fertilizer are smuggled to afghanistan from pakistan, sometimes hidden in the convoys of goods that process the open 1,500-mile border. the fertilizer pellets are boiled down and the material is

put in a package or container with an explosive detonator that is often linked to a simple trigger system, something such as a tripwire buried in the sand awaiting the tire of a passing vehicle or the foot of an american soldier on patrol. at this moment, thousands of our soldiers and marines have been injured, thousands of these bombs are buried in afghanistan's soil, and sadly, many more will be planted in the coming weeks and months. again, my colleague from pennsylvania, senator casey, has been a leader in the senate and indeed, led a bipartisan group of senators, including myself, in writing to the secretary of state to request greater diplomatic effort by our government to encourage pakistan to stem the flow of bombmaking

materials into afghanistan. then in august, we went on an official trip, a codel, to take the message straight to the government of pakistan. we met with the most senior leaders of pakistan, and we urged stronger action against the misuse of everyday materials by terrorist groups in making the bombs that kill and maim our troops in afghanistan. we took this message to officials of pakistan at the highest level, and they responded with a plan that is supposedly being implemented. but the fact is that stronger measures are needed. we need a crackdown and a shutdown on the bombmaking materials, the fertilizer and the ammonium calcium nitrate

that is smuggled across the border so it can be made into bombs that maim and kill our troops from connecticut, troops from across the country, troops who are innocently victims, and the people of pakistan and afghanistan themselves who become victims. we saw how our troops seek to protect themselves from these i.e.d.'s. in fact, at a sand-swept compound in hell mun province in afghanistan, our delegation saw the most common types of protective devices and practices including how our soldiers and marines wear body armor, lie face down in the dirt and drag a 10-foot pole with a hook at the end on the ground to looking for the tail tale signs of -- telltale signs of an diemplet. other measures range from dogs

that sniff out bombs to huge armored vehicles. but even with the most effective advance of detection, body armor is still essential to protecting our troops. pakistan's plan to address the i.e.d. smuggling supply chain which is a threat to its own people as well as our soldiers and marines, has yet to be proved effective. the plan addresses border security, regulation of fertilizer materials, and promoting public awareness of the threat posed by these i.e.d.'s. but we cannot rely on pakistan's good will -- goodwill to ensure this important work. there can be no ambiguity, no doubt, no sirnt in our relationship with pakistan, and that is why i support even stronger measures that senator casey has championed as well.

in the process that he has suggested to withhold any assistance if verification cannot be accomplished. in its action not mere plans or conferences, the pakistanis need to prove that they are stopping and stemming the flow of fertilizer. they need to prove more than just goodwill or good intentions but effective action to stem and stop the flow of all of the bombmaking materials across the border. we also must support efforts by the department of defense to secure and deploy body armor such as this bill does, and equipment that protects all our troops in harm's way. we are all familiar with the force protection developments such as enhanced ceramic plates and redesigning vehicles with v-shipped hulls to deflect blast

impack -- impact. these advances, make no mistake, came at great expense in terms of blood and treasure to our nation. we learned how to properly equip our troops in some respects for these missions, even at the end of operation enduring freedom now is in sight, the requirement to develop even better protection continues. and it must be relentless and tireless. we cannot abandon efforts, we simply cannot abandon this fight to protect our troops in the field. the lessons learned will serve to honor our commitment to ensure that the brave men and women who protect our freedom and protect our safety and security have the best protection we can provide them. enhanced ballistic armor, including underwear protection, or blast boxers, are essential to combating the threat of

roadside bombs. when an i.e.d. debt naits against dismounted -- detonates against dismounted troops, it blasts segments that literally tears the skin apart of our troops. flexible armor can prevent the amputation of a limb or worse. i've been asked and informed about delivery of this equipment. to date, 165,000 of the tier 1 sets of blast protection have been delivered into theatre. the marine corps received 15,000 sets of tier 2 level protection delivered four days ahead of schedule. by the middle of next month, the army will also receive its complete requirement of tier 2 level sets. this armor was adapted from one of our allies, british forces, and the army has now established domestic production of the equipment. and i am hopeful that additional

types of protection will also be processed and produced and sent. and i hope it will be expeditiously. when i learned of this lifesaving equipment and the challenges involved in delivery, i wrote to the department of defense urging swift delivery of the body armor. i was joined by colleagues, senator casey, bennet and whitehouse, and i am hopeful that this program will be an example of our body armor procurement system working effectively. i am hopeful that it will set an example and provide a model for this body armor being provided expeditiously, as it is needed. and i look towar forward to our passing the defense authorization bill which continues these efforts to supply body armor and equipment needed for our troops in afghanistan. this bill provides also for the

equipment needed to interject i.e.d.'s. from the small backpacks carried by our troops to u.a.v.'s, to giant buffalo vehicles, interdiction also requires the right specialized equipment to detect materials to make those i.e.d.'s as they are smuggled across the porous afghan-pakistan border. this effort also requires training and awareness of both our military personnel and our allies in this fight. as of september 2011, the afghan border police had 20,852 personnel. this growth is encouraging. but the border police have problems with endemic corrupti corruption, and they're effective only to the he can tent that our -- extent that our special forces augment this

force. and our special forces, our special operators should be encouraged and enabled to continue this effort. interdiction is an integral part of larger efforts to understand the battle space in this region. force alone can't solve the problem. we need better intelligence and the right detection equipment combined with the efforts of our special forces. it must be truly a comprehensive effort, as the again authorization bill clearly recognizes. we need to show all who live on both sides of this border that the cost of supplying the ingredients of thee bombs that kill and maim our troops is too high for them, just as it is too high for us to tolerate. let me again thank the chairman, senator levin, and the ranking member, senator mccain, for their recognition of this problem. our nation has spent more than a half a trillion dollars in

support of the war in afghanistan. we've sustained more than 2,800 coalition casualties. an afghanistan that is stable and self-sufficient certainly is our goal and it depends on the tactical success of these efforts. i.e.d.'s remain the weapon of choice of our enemy. should we not learn to successfully counter the threat of i.e.d.'s, we will see this asymmetrical threat repeated on the battlefield wherever our troops are deployed around the world. and given enormity of this challenge, i urge my colleagues to remain committed to this go goal, remain true to this strategy, and counter these i.e.d.'s. we must authorize both our foreign operations expenses and this bill. and i thank my colleagues for their bipartisan support, truly bipartisan support, of these

efforts. thank you, mr. president. and i yield the floor. mr. wicker: mr. president? the presiding officer: the senator from mississippi. mr. wicker: mr. president, i ask unanimous consent that lieutenant commander ted isenfeld, a very capable naval fellow in my office, be granted floor privileges during the consideration of the defense authorization bill. the presiding officer: without objection. a senator: mr. president? the presiding officer: the senator from maryland. mr. cardin: mr. president, you know that floor privileges be granted to lieutenant commander shane nisle, a navy fellow serving in my office during the pendency of s. 1867, the fiscal year 2012 national defense authorization act. the presiding officer: without objection. mr. cardin: and, mr. president, let me just comment, senator wicker, with his fellow, how valuable these fellows are in our office. and i just really am very grateful for lieutenant commander nestle's service in my office. i know senator wicker feels the same. my -- lieutenant commander shane nestle will be leaving my office next month and i want to thank

him very much for the that was he has provided in the senate. mr. president, in a moment, i'm going to be asking unanimous consent that the senate take up and confirm the nomination of ken camposis to be assistant administrator of the office of water for the environmental protection agency. before i make that unanimous consent request, i want to just take a moment to say a few words about this nominee and the process that it has taken place in the united states senate. i've known ken composis since i was firsty throac first electedn 1986 and i've worked personally with him on a number of water-related issues. ken has extensive background on water policy and legislative issues, having worked in the congress for 25 years. i worked with him first when i was in the house of representatives. i know the presiding officer also when he was in the house remembers the good work that ken did for the -- for the house of representatives. he's now worked, of course, in the united states senate.

he's played a role in crafting and defending numerous pieces of environmental legislation, including the clean water act. at a time where there's so many controversial issues concerning water issues in the congress, i think it's important that we have someone at the helm that has the confidence of senators on both sides of the aisle. i had the honor of chairing the subcommittee of the environment and public works on water and wildlife. ken composis enjoys the confidence of all the members of our committee. when his nomination was considered in the environment and public works committee back in july -- that's when we took it up -- ken was praised by both republicans and democrats alike. most of my colleagues have had the opportunity to work with him and they're enthusiastic about his credentials, and his level-headed, bipartisan approach to every issue. it's time that the senate take up this confirmation. it's the right thing to do. so, mr. president, i ask unanimous consent that the

senate proceed to executive session to consider calendar 403, that the nomination be confirmed with no intervening action or debate, that no further motions be in order to the nomination, that any statement related to the nomination be printed in the record, that the president be immediately notified of the senate's action, and that the senate then resume legislative session. the presiding officer: is there objection? a senator: mr. president? the presiding officer: the senator from wyoming. mr. barrasso: mr. president, reserving the right to object. there are still questions that need to be answered and information that needs to be provided, mr. president, by mr. kopocis. i am concerned about the depth of his past involvement to change the scope of the clean water act beyond congressional intent. to me, this nominee still needs to explain his views on public and stakeholder input on regulations that he would be in charge of and explain his understanding -- his understanding -- of the role of congress versus the role of the environmental protection agency

in terms of who makes the laws in this country. until those issues are clarified, i do not believe it is appropriate for this nominee to move forward. and, therefore, mr. president, i object. mr. cardin: mr. president? mr. mccain: mr. president, i ask for the regular order. the presiding officer: the senator from maryland has the floor. mr. cardin: mr. president, i'm going to yield the floor in one moment. let me just say to my friend from wyoming, i'm going to do my best to make sure you get all the information you need. i want to make sure every senator has all the information they need. i think this is a very important decision -- position to be filled. mr. kopocis has the qualifications and confidence. i want to make sure that's done as quickly as possible and i respect my -- my colleague's views and i will work to make sure he gets all the information he needs. i yield the floor. mr. mccain: mr. president? the presiding officer: the senator from arizona. mr. mccain: mr. president, my understanding that the senator from colorado, senator udall, is coming over to propose an amendment and i happy to will

happen momentarily and i hope that the members will be prepared with other amendments that we can dispose of this afternoon. i yield. mr. wicker: mr. president? the presiding officer: the senator from mississippi. mr. wicker: mr. president, i rise this afternoon in support of the fiscal year 2012 national defense authorization bill. as ranking member of the sea power subcommittee on this committee, i want to thank both chairman levin and ranking member mccain for their leadership. it's somewhat of an achievement in actually getting the bill to the floor at this time, and i appreciate their determination. as we approach the thanksgiving holiday next week, i'd like to take a moment to honor the men and women of our armed forces. we are grateful for their service and our thoughts and prayers are with those now deployed at sea and ashore. my own state of mississippi is

home to many brave service members. their sacrifices are matched, of course, by those of their families who have supported them day in and day out as they selflessly serve this country. as ranking member of the sea power subcommittee, i've had the pleasure of working with my friend, senator rei -- senator d of rhode island, who is chairman of that subcommittee. we both worked to ensure this bill meets a wide range of procurement, sustainment and research and development needs for the navy and the marine corps. our deliberate raising rations were -- our deliberations were informed, among other things, by a series of hearings that we held that addressed force structure and modernization for the department o of the navy. this process has resulted in a bill that contains provisions which will deliver important capabilities and support our sailors and marines. the bill before us today is supportive of the president's shipbuilding budget request and

drobts the continued -- and contributes to the continued vitality of our shipbuilding industrial base which is very, very important. at a time when we are concerned about job creation, the last thing we want to do is let our industrial base be chipped away. the fiscal year 2012 shipbuilding budget funds new construction for various types and classes of ships, including an aircraft carrier, amphibious ships, submarines and large and small surface combatants totaling more than $15 billion. from our discussions during the sea power subcommittee meetings, it has become abundantly clear that members are concerned about challenges in maintaining fleet capacity among many classes of ships and the capability gaps that exist that have a real effect on the sailors who crew these ships. from amphibious ships to aircraft carriers to destroyers and to submarines, our navy must

maintain an adequate balance among all classes of ships to ensure our navy can execute these responsibilities. then through classified briefings, we have received -- briefings we have received from senior officials in the dismeaf inavy andin the intelligence co, the sea power committee also is well aware of the imminent and emerging threats facing our sea services. america must maintain its capability to project power and uphold our obligations to our friends and allies throughout the world. this means robust investment in sea power and i'm heartened that this bill contains such an investment. with the deficit-reduction committee's recommendations due to congress in less than a week, i know all of my colleagues agree that cutting our deficit and reducing our national debt responsibly is a must.

failing to act will put the burden on our children and grandchildren. we must make tough decisions now on spending because our current track is unsustainable. i hope the deficit-reduction committee is able to come to an agreement on spending priorities because the alternative is unacceptable cuts in national defense. we must remember that national defense is solely a federal responsibility. failure to reach consensus would have grave consequences for our military. marine corps commandant general james amos cautioned about such cuts earlier this week. so in conclusion, mr. president, i believe the national defense authorization bill reaffirms our commitment to national security and to our men and women in uniform. i urge my colleagues to act quickly on this important piece of legislation, and once again,

i thank and commend my friends, chairman levin and ranking member mccain. and i yield the floor. mr. wicker: mr. president, i suggest the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:

the presiding officer: the senator from colorado. mr. udall: mr. president, i would ask unanimous consent that the quorum call be lifted. the presiding officer: without objection. mr. udall: thank you, mr. president. mr. president, i come to the floor to comment on the bill in front of us today, and i want to just start my remarks by acknowledging the leadership of chairman levin, ranking member mccain. under their tooth los angeles -- tutelage and leadership, they have provided an act that provides our armed forces with the equipment, services, training and the overall support that they need to keep us safe while they themselves are being

protected. and i want to thank the chairman, the ranking member, my staff, colleagues, and i think most importantly the wonderful staff that work for us for their diligence and dedication to this important work. mr. president, i also come to the floor to speak out against a proposed change that would, i think, alter what has been a very effective set of terrorist detention policies and procedures, and i believe to make those changes would complicate our capacity to prosecute the war on terror and call into question the principles that we as americans hold dear. mr. president, i filed an amendment, 1107, that would take a look at what is proposed in the ndaa. now, we have a solemn obligation, mr. president, to pass a national defense authorization act, but we also

have a solemn obligation to make sure that those who are fighting the war on terror have the best, most flexible, most powerful tools possible. and i have to say again and i will say it more than two times in my remarks that i'm worried that these changes that we're about to push through would actually hurt our national security. i am a proud member of the senate armed services committee, and as i have implied and i want to be explicit, i understand the importance of this bill and i understand what it does for our military, which is why in sum what i am going to propose with my amendment is that we pass the ndaa without these troubling new provisions but with a mechanism by which we can consider what has been proposed and perhaps at a later date include any applicable changes in the law. but we need to hear from the

department of defense, our defense community and the administration more broadly and what our men and women in the field actually need to effectively prosecute the war on terror, especially before we change detainee policies that are already working. mr. president, as i'm saying, i have got really he serious concerns about the detainee provisions that have been included in the bill. in my opinion and the opinion of many others -- and i will share those opinions and insights with my colleagues -- these provisions disrupt the executive branch's capacity to enforce the law and impose unwise and unwarranted restrictions on our ability to aggressively combat international terrorism. in so doing, they inject legal uncertainty and ambiguity that may only complicate the military's operations and intentions practices. now, mr. president, i'm not the only one that has serious concerns. the secretary of defense has

urged us to oppose these new provisions, both the chairman of the intelligence and judiciary committee strongly oppose them, and the president's team is recommending a veto. these are people whose opinions should be carefully considered before we put these new proposals into our legal framework. in the statement of administrative policy, the white house states -- quote -- "we have spent ten years since september 11, 2001, breaking down the walls between intelligence, military and law enforcement professionals. congress should not now rebuild those walls and unnecessarily make the job of preventing terrorist attacks more difficult." those are striking words, mr. president, that should give us all pause as we face a -- it seems to me a bit of a rush to submit these untested and legally controversial restrictions on our ability to prosecute terrorists. mr. president, i would ask unanimous consent to replace

the -- to place the entire statement of administrative policy in the record. the presiding officer: without objection. mr. udall: these are complex issues that have far-reaching consequences for our military, our civilian law enforcement agencies and our intelligence community as they work to keep americans safe from harm. despite this fact, the department of defense and the national security staff, as far as i know, had little opportunity to review or comment on the final language in the provisions, and as a result, these provisions restrain the executive branch's option toss utilize in a swift and flexible fashion all the counterterrorism tools that are now legally available. that quote comes directly from a letter addressed to the armed services committee from secretary panetta, and i think we all know that mr. panetta was also, before he held the job

that he has now, secretary of defense, he was the director of the c.i.a., so he very well knows the threats facing our country, and he knows that we cannot afford to make mistakes when it comes to keeping our citizens safe. and, mr. president, i would ask unanimous consent that secretary panetta's letter be entered into the record. the presiding officer: without objection. mr. udall: the provisions i'm speaking to are well intended. i have much admiration for my colleagues who proposed them, but i think we need to take some more time to consider the ramifications. the united states, our country, can currently choose from several options when prosecuting terrorists. that flexibility has allowed us to try, convict and imprison hundreds of histories and it allows the government to select the venue that will provide the highest likelihood of obtaining a conviction. the current detention provisions in the bill we are debating

would strip away that flexibility and potentially impair our capacity to successfully prosecute and convict terrorists. it's not clear to me why, after ten years of successfully prosecuting terrorists and preventing another 9/11-like attack, why we would want to limit our options. well, our enemies are constantly adapting their tactics and expanding their efforts to do us harm. in a recent op-ed in the chicago times, a bipartisan group of three former federal judges, including william s. sessions, who is also the appointed director of the f.b.i. under president reagan, said it best when describing these provisions -- quote -- "legislation now making its way through congress would seek to overmilitarize america's counterterrorism efforts, effectively making the u.s. army the judge, juror to the exclusion of f.b.i. and local and state law enforcement agencies. as former federal judges, we

find this prospect deeply disturbing. not only would it -- touch -- such an effort ignore 200 years of legal precedent, it would fly in the face of common sense." end of quote. and, mr. president, i would ask unanimous consent that that op-ed be entered into the record. the presiding officer: without objection. mr. udall: mr. president, i would also point out that these provisions also raise serious questions as to who we are as a society and what our constitution seeks to protect. one section of these provisions, section 1031, would be interpreted as allowing the military to capture and indefinitely detain american citizens on u.s. soil. section 1031 essentially repeals the passe comitasse act of 1873 by authorizing the u.s. military to perform law enforcement functions on american soil. that alone should alarm my

colleagues on both sides of the aisle, but there are other problems with these provisions that must be resolved. these detainee provisions are unnecessary, counterproductive and potentially harmful to our counterterrorism efforts. and, mr. president, i know i've said this a couple of times already, but it feels like they're being rushed through in a manner that doesn't serve us well. the department of defense has had little input, there have been no hearings and earlier this week the changes were presented to us in the armed services committee just hours before we were asked to vote on them. these are just too important a set of questions to let them pass without a thorough review and far greater understanding of their effect on our national security and our fight against terrorism. it feels to me, to this senator, that we're rushing hastily to address a solution in search of a problem.

and we ought to hear from the department of defense, the intelligence community, and our colleagues in other relevant committees before we act. do we really believe that this congress -- again let me underline that. for ten years of successfully prosecuting the war on terror should sub substitute its views for those of our homeland security leadership without careful analysis? mr. president, i recently received a letter signed by 18 retired military leaders in opposition to these provisions. the letter states that -- quote -- "mandating military custody would undermine legitimate law enforcement and intelligence operations crucial to our security at home and abroad." mr. president, i couldn't agree more. and i'd ask unanimous consent that this letter be included in the record. the presiding officer: without objection. mr. udall: we are already trying

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

have. it's a healthy debate, but we ought to be armed with all the facts and expertise before we move forward. the least's can -- least we can do is take our time, be diligent and hear from those who will be affected by these new limitation ons our ability to prosecute terrorists. and it concerns me, mr. president, that we would tell our national security leadership, a bipartisan national security leadership, by the way, that we wouldn't listen to them and that congress knows better than they do. it doesn't strike me that that's the best way to secure and protect the american people. so, mr. president, that's why i have filed amendment 1107. i think it's a commonsense alternative that will protect our constitutional principles and beliefs, while also allowing us to keep our nation safe. the amendment has a clear aim, to ensure that we follow a thorough process and hear all

views before rushing forward with new laws that could be harmful to our national security. mr. president, what's in the amendment? it's straightforward. specifically, the amendment would require the defense intelligence and law enforcement agencies report to congress with recommendations for any additional authorities or flexibility that they need to detain and prosecute terrorists. in other words, let's not put the horse before the cart or fix something that isn't broken. let's first hear from the stakeholders as to what laws they believe need to be changed to give them better tools to do their jobs. my amendment would then ask for hearings to be held so we can fully understand the views of respected national security experts. and moreover, it would require input from each of the relevant committees to ensure we have carefully considered the benefits and consequences of our actions. the chairman of our judiciary

and intelligence committees have deep concerns about the detainee provisions in the pending legislation. and of course, mr. president, as we underwent this process, the existing laws that guide our actions today would remain in place, they've been successful, i've seen some of my colleagues who i think share my views have come to the floor, they've also made the compelling case it's a system that's working, why would we change it without really thinking it through? it's straightforward, it's common sense, and it allows us to make sure we will win the war on terror. mr. durbin: would the senator from colorado yield for a question? mr. udall: yes. mr. durbin: i thank the senator for his statement and i support his position. this change goes beyond a military decision, it goes to the fundamental questions of principles of our constitution and our body of law. as a member of the senate judiciary committee, i believe this matter should have been considered as well by the senate

judiciary committee and i believe senator feinstein has expressed the feeling it should have been considered as well by the senate intelligence committee. but i would like to ask the senator from colorado one very specific example, use one example to ask him a question. when we had the so-called underwear bomber, the passenger on a commercial aircraft who tries to detonate a bomb and thank god was unsuccessful, he was subdued, arrested, and interrogated by the federal bureau of investigations in detroit. after that investigation was underway and he surrendered some information, he stopped talking, at which point the f.b.i. investigators read him his miranda rights. then later, working with his parents, he resumed talking to the investigators and literally according to the f.b.i. gave a dramatic amount of information, helpful to us in keeping america

safe and stopping terrorism. he was then prosecuted in the criminal courts of america, article 3 courts, and ultimately just weeks ago pled guilty. the presiding officer: would the senator state his question. mr. curr dane: a senator: and by say it's important all voices be heard. mr. durbin: senator mccain as the ranking member will have ample opportunity to express his point of view. what i'm asking the senator from colorado is this: taking into consideration the language now being presented in this defense authorization bill particularly section 1032, it is my understanding that the federal bureau of investigations could not have continued their interrogation of this suspected terrorist without first contacting our military and bringing them in to determine

whether or not they had jurisdiction over this matter. in other words time would have been lost, opportunities would have been lost, information might have been lost by following the new section if the bill. i'm asking the senator from colorado if this is a decision which he believes we should make in the haste of a defense authorization bill or ought to step back and work with the president of the united states, the f.b.i., the military, and our intelligence forces to make sure we do not lose an opportunity to catch a terrorist -- catch an alleged terrorist, to interrogate them and to keep this country safe. mr. udall: i thank the senator from illinois for his question. my understanding is the senator from illinois is correct, that 1032, provision 1032 would change the way in which interrogations would unfold. there may be some in the senate who see it differently but that's all the more reason to adopt my amendment which would put us through a process of hearing from the very experts

who interrogated the underwear bomber. other experts who have been on the front lines in fighting terrorism. we ought to go slow, we shouldn't fix something that is working just fine right now. i thank the senator for his question. mr. durbin: if the senator from illinois will forgive me, i'd like to go back to the point you made. section 1031 as i understand it would be a departure from current law and would say those who are not american citizens -- pardon me, those who are american citizens can be detained indefinitely if they are suspected of certain terrorist conduct. i ask the senator from colorado, is that the point you made in your statement? mr. udall: the senator from illinois is correct. 1031 would do just that and it would come directly at a piece of law, posse co miench tatus, dates back to the civil war, held dear by all of us in america because it distinguishes between the military used to

protect us and foreign foes and how we manage our affairs here at home. as the senator alludes to, causes something questioned, sacred in our law, the writ of habeas corpus. you cannot detain an american citizen indefinitely in any other circumstance. i thank the senator for his questions. a senator: would the senator yield for a question? mr. udall: i'd be happy to yield for a question. mr. levin: we specifically wrote into this bill the following language, that the procedures providing for the determination that somebody is an al qaeda terrorist or related affiliated one is not required to be implemented until after the conclusion of the interrogation session, which is ongoing at the time the determination is made. is the senator familiar with that language which explicitly says that the president will

adopt the procedures, whatever procedures the president derps, to -- determines, to make sure there is interference with an ongoing interrogation by the civilians as it appears in section c-2-c on page 363? is the senator familiar with that? mr. udall: i am familiar with that with the language in the general way it's been introduced. by say 0 the chairman of the armed services committee, we had a chance to review this language starting about 48 hours ago. but one of the reasons i think my amendment is important, it would give those voices which are being heard more and more as of today who have concerns with this provision, they're not sure how it applies, that that's all the more reason to slow this down, keep the existing law in place and go through a more thorough process to understand what the ramifications of the way -- waiver provision and other provisions that the chairman and

the ranking member -- mr. levin: is it not true that the language in this bill which i just read clearly provides that there will not be any interference with an interrogation session, that those procedures will be determined by the president, and that it's explicitly says there will not be any interference with interrogation and the procedures will guarantee that there will not be? that's the point of this language. i don't understand how the statement can be made that this language in this bill interferes with the interrogation by civilian authorities and the f.b.i. when the very language here says they will not interfere with that interrogation. i want -- wonder if the senator could explain to me with his agreement with the senator from illinois that something in this bill would interfere with an interrogation. mr. udall: what i say to my friend having just had the opportunity to review this language the last 48 hours that

i have no questions about his intent, but i have heard from people with much greater period of time tease than i have that -- period of time tease tease -- period of time expertise that there are questions and maybe this language is appropriate and will do what the chairman says it will do but that's why i think it would be well worth our time to take a further look at what is involved in these provisions. mr. levin: i appreciate the senator's response. i have one other question, that has to do with somebody, an american citizen that is captured in the united states and the application of the custody pending a presidential waiver to such a person. i'm wondering whether the senator is familiar with the fact that the language, the language which precluded the application of section 1031 to american citizens was in the

bill that we originally approved in the armed services committee and the administration asked us to remove the language which says that u.s. citizens in lawful -- and lawful residents would not be subject to this session. -- section. is the senator familiar it is the administration that asked us to remove the very language which we had in the bill that passed the committee and that we removed it at the request of the administration that would have said that this determination would not apply to u.s. citizens and lawful residents. i'm just wondering is the senator familiar with the fact it was the administration that asked us to remove the very language, the absence of which is now objected to by the senator from illinois? mr. udall: i'm familiar now because the senator shared that fact with me. i'm also familiar the administration has other questions and concerns which has caused it to issue a set of

provisions and issues that they would like further considered. mr. levin: i thank my friend. mr. udall: i'd be happy to yield to my friend from vermont. mr. leahy: is the senator from colorado aware there have been questions raised by the administration, real concerns by both d.o.d. and the white house, saying they're requiring the president to device the kind -- devise the kinds of procedures just discussed creates all kinds of problems and one of the reasons why both the senate intelligence committee and the senate judiciary committee has asked to at least have a hearing on a section that obviously involves the jurisdiction of both senate intelligence and intelligent

judiciary a senator: i am. and that knowledge on my part is one of the reasons that i've introduced or filed, i should say, the amendment we're discussing right now. mr. leahy: i thank the senator. a senator: i thank the senator from vermont. mr. president? i yield the floor. the presiding officer: the senator from arizona. mr. mccain: mr. president? the presiding officer: the senator from arizona. mr. mccain: mr. president, for the sake of the accommodation of the schedules of my colleagues, i would ask unanimous consent that following my remarks and whoever the speaker is on the other side as designated by the chairman, that senator ayotte be recognized, and then after one from -- a speaker from the other side, if necessary, senator chambliss, followed by a speaker on the other side, followed by senator graham. i do that so that because of the time constraints of -- of my colleagues. so i'd ask unanimous consent,

agreement from the senator from michigan. mr. leahy: reserving the right to object, and i think it's a valid request. i'd ask that i be allowed to just call up and then set aside before you go into a series of speakers, call up and then set aside s.a. 1072, which is sponsored by myself and senator graham. and i could -- there's a list of 67 other senators. mr. mccain: mr. president, i yield to the senator from vermont. mr. leahy: mr. president, i -- the presiding officer: the senator from vermont. mr. leahy: i thank my friend from arizona. i'd ask to call up amendment number 1072. the presiding officer: without objection, so ordered. the clerk will report. the clerk: the senator from vermont, mr. leahy, for himself and others, proposes amendment numbered 1072. mr. leahy: and, mr. president, this is on behalf of myself,

senator graham, senator rockefeller, senator ayotte, senator akaka, senators alexander, baucus, begich, bennet, bingaman, blumenthal, blunt, boozman, boxer, scott brown, sherrod brown, burns, cantwell, carper, casey, coast, conrad, coons, corker, crapo, durbin, enzi, feinstein, franken, gillibrand, grassley, hagan, harkin, heller, hoeven, inhofe, inouye, johanns, ron johnson, tim johnson, klobuchar, landrieu, lautenberg, lee, lug lugar, manchin, mccaskill, menendez, merkley, mikulski, moran, murray, ben nelson, pryor, risch, sanders, schumer, shaheen, snowe, stabenow, test tester, toomey, mark udall, vitter, warner, whitehouse, and wyden. and it's been called up. i ask consent to have it set aside so we can go on and continue with the pending matter. the presiding officer: without objection.

without objection, the foregoing request from the senator from arizona is granted. mr. levin: well, reserving the right to object. the presiding officer: the senator from michigan. mr. levin: and i don't object because that is the way we should proceed, going back and forth. i just -- usually we do that informally and i don't know whether or not if the senator -- whether there may be implications because i don't know who's -- mr. levin: i have no objection. the presiding officer: without objection, so ordered. mr. mccain: i thank my friend from michigan. i do that for the convenience of my colleagues because i know that there are others who will also be coming to speak on -- on this important issue. i'd like to point out that the senator from south carolina, a member of the national guard, author -- one of the major authors of the detainee treatment act, a person who has tried hundreds of cases in military courts i think brings a

degree of knowledge and expertise on this issue. the senator from new hampshire has been -- served as attorney general of her state for a number of years. she understands the miranda rights. she has been a student and leader on this issue on the detainee treatment. and, of course, senator chambliss, in his role as the republican leader on the intelligence committee, has a deep and long-standing involvement on detainee issues and the requirements for making our nation safe. i'll be fairly brief except to say that by any judgment, the president's policy, the president's strategy, the president's movements concerning detainees has been a total and abysmal failure. and if the president of the

united states had had a coherent policy that would have made any sense whatsoever to anyone, we would not have had to act in the senate armed services committee. let me point out a couple of facts. the president of the united states campaigned saying that -- that he would close guantanamo bay. guantanamo bay remains open. he said, the president of the united states also said that we would have detainees tried in civilian as well as military court. that was a position that he's held. so they had the great idea -- they had a great idea, let's take khalid sheikh mohammed to new york city. that was a great idea. let's have $300 million in security costs while they have a trial at one of the most -- of the most notorious international criminals. obviously that one got the support that -- that it deserved. we now have, thanks to the

release policy of guantanamo, 27% of the detainees of guantanamo who have been released are back in the fight trying to kill americans. only this time, they've got a red badge of courage and a degree of legitimacy because they are -- spent time in guantanamo bay. leaders of al qaeda have been released from guantanamo bay under this administration. now, they were released under the bush administration as well, to be fair, but we didn't know at that time how many of them would return to the fight. so some of the leaders in yemen that we're speaking about that -- that are now doing everything they can to kill americans were released from guantanamo bay. that can't be viewed as a successful policy. 30 individuals in guantanamo today are -- are yeme yemens,

citizens of yemen. we can't release them, obviously, back to yemen. so now -- so now what do we do in order not to have people go to guantanamo bay? we are now using u.s. naval ships to detain suspected terrorists. for 60 days, they kept a suspected al qaeda member onboard a ship. now, mr. president, when i support the construction of more navy ships, i had a lot of missions in mind. serving as a detainment facility for suspected terrorists is not one of them. the underwear bomber was measure ran died -- mirandised 50 minutes into custody. and the senator from illinois forgot to mention that several weeks went by before the underwear bomber's family came and convinced him to cooperate. suppose that there had been an impending attack on the united states of america during that

period of time after -- this guy after 50 minutes in captivity was mirandised. most americans don't believe that al qaeda members should be mirandised. and as the senator from new hampshire will point out, she's had a lot of experience with individuals who have exercised their miranda rights. so the administration policy has been a complete failure. what we are trying to do in this legislation -- and we have tried and tried again to satisfy many of the concerns that the administration has -- and i would point out, we did certain things, such as make this -- this legislation only for one year. not permanent but only for one year. and we have issued -- we have put into this legislation a national security waiver which is a mile wide. if the president of the united states decides that this individual should not be kept --

should -- that an individual should be given a trial in civilian court, that -- that -- he has a waiver that all he has to do is exercise. so i'm not exactly sure why the administration feels so strongly about a one-year restriction with a national security waiver that's a mile wide. we made a couple of other changes at the request of the administration. so i can only assume that somehow this has some sort of political implications, as most of -- and i don't say that lightly -- as most of the actions concerning this whole detainee issue seem to be driven by. so there was hearings held in the -- in the senate armed services committee. there was input from all -- all different kinds -- sources. the senator from michigan is not a renowned -- has been fair and

objective on this issue and i am very appreciative of that. the vote in the -- in the senate armed services committee was, i believe, 26-0678 -- was 26-0. and we, we feel very strongly that the provisions in this bill are necessary to keep americans secure. we want to stop 27 -- one out of four, more than one out of every four of these detainees from going back in the fight. we want to make sure that the military court system applies here to people who are noncitizens and known members of al qaeda. and all of it seems to me to make perfect sense. so, obviously the administration ratcheted up the stakes today with a -- with a threat of a veto. i hope that they're not serious about it. there's too much in this bill that are important to this nation's defense. i yield the floor.

123450 mr. levin: i wonder if -- the presiding officer: the senator from michigan. mr. levin: -- we could amend the unanimous consent request. there's nobody that i know of on this side at the moment that wants to speak in support of the amendment so i'm wondering if it would be agreeable to the ranking member to have two members on your side go and then two members on our side, should that appear. mr. mccain: that's not agreeable to me. i'd say that they have the ability to walk over here if they're interested. mr. levin: in that case, i note the absence of a quorum. mr. mccain: that's not fair. mr. levin: i am in opposition to the amendment so i want to be fair -- the presiding officer: has the senator from arizona agreed to the request of the senator from michigan. mr. mccain: i agree. the presiding officer: without objection, so ordered.

mr. chambliss: mr. president? the presiding officer: the senator from georgia. mr. chambliss: mr. president, i rise in opposition to the motion of the senator from colorado. as the ranking member -- excuse me, as the vice chairman of the senate intelligence committee, let me just say in response to the distinguished chairman of the judiciary committee that there has not been a lack of discussion of this issue, both within the armed services committee and within the intelligence committee. while i'm not permitted to talk about what has gone on within the intelligence committee, i assure you that this has been a

major issue from a discussion standpoint for a number of months. in fact, it's been a point of discussion for almost three years now, and i'll get into some of that in my comments. and, secondly, just in quick response to the comment of -- from the senator from illinois, the assistant majority leader, when he talked about how we would treat united states citizens under this, obviousl obviously -- and i know how smart he is and he's my friend. he hadn't read the bill. there's a specific exclusion for citizens of the united states being required to be detained by the military in this bill. but over the past several years, there's been an ongoing debate concerning our nation's ability to fully and lawfully interrogate suspected terrorists. one thing remains clear, after all these years after 9/11, we still lack an ambiguous and

effective and detention policy. the consequence of that are very real. if we had captured bin laden, what would we have done with him. if we would have captured al-alaki, what would we have done with him? if today we capture zawahiri, the leader of al qaeda, what would we do with him? many of us have posed these questions to various administration officials and the wide variety of responses only confirms that there's no policy. that's unac -- that's unacceptable. that's why the detainee provisions in this bill are so absolutely critical. i think it's fair to say that if we had captured bin laden or al allah key, we could have cap chiewrd intelligence from them. but that's our primary goal. but how would we've done that? there's no place we could have taken them for long-term interrogation. the closest thing to a policy

that we have heard from the administration is that guantanamo is off the table, but that's just not helpful when they provide no other alternatives. we've heard some administration officials say that holding detainees on ships for brief periods of time solves this detention problem. now, senator mccain just addressed that issue, and, you know, we've got a great united states navy. it's not the intention of the united states navy to function in a way of sailing ships around the world and having terrorists brought to ships for detention. a state-of-the-art facility like guantanamo is off the table but holding someone on a ship never intended to be a floating prison and prohibiting from long-term detention by the geneva

conventions is somehow a humane replacement for guantanamo. and that simply does not make sense. the intent behind the detainee provisions in this bill is very simple: we must be able to hold detainees for as long as it takes to get significant foreign intelligence information without them lawyering up as the christmas day bomber did so famously after only 50 minutes of interrogation. and, again, to my friend from illinois who talked about the fact that once this young man's parents got involved that after his miranda rights had been given to him, he gave us an awful lot of intelligence, and that is true in his case. but, mr. president, i doubt very seriously that zawahiri's parents are going to tell his son you really ought to go in and talk to these folks and give them all the details about how

you helped plan the september 11 attacks on the united states of america. we just know that with high-value targets, that's not going to happen on a wholesale basis, and we simply need to be in a position to gain actionable intelligence from every one of those individuals. while i fully support the detainee provisions in this bill, i believe there are other improvements that can and should be made. for example, i am cosponsoring senator ayotte's amendment which will allow our intelligence officers to use methods beyond those set forth in the army field manual. we need to be clear on exactly what this means. this amendment does not authorize or condone torture, and every technique used in every interrogation must comply with our laws and treaty obligations. i believe there needs to be flexibility in how we interrogate terrorists, but even

more so i believe it is foolish to publicize, as the army field manual does, the specific techniques can can be used in interrogating a suspected terrorist. over the years we have heard repeatedly from the intelligence community that the element of surprise is sometimes our greatest asset in gathering timely intelligence from detainees. senator ayotte's amendment gives the intelligence community the ability to use techniques that have not been broadcast over the internet. and, in my opinion, that makes a lot of sense and i hope my colleagues will agree because, madam president, the folks that we are dealing with in the terrorist world today, these guys who are the meanest, nastiest killers in the world, who make wake up every morning trying to figure out ways to harm and kill americans, are not stupid. they carry laptops, they know how to use the internet because we gained valuable information

oftentimes through the airwaves. we know how smart they are, and we know that they have the capability of going on the internet today and reviewing the army field manual. they know exactly the way they're going to be interrogated and the type of techniques that are going to be used to gain intelligence from them. madam president, the armed services committee has worked very hard hon a bipartisan biz to com -- on a bipartisan basist will improve congressional oversight of detainee matters as well as provide greater assurance that detainees who pose a threat to our national security are not released so that they can return to the fight. as the vice-chairman of the intelligence committee, i have specific interest in making sure that our intelligence committee -- community has the ability to gather timely and actionable intelligence from detainees. i believe this bill will help our intelligence interrogators do exactly that and i urge my

colleagues to support the provisions fully. as was done on a unanimous basis within the armed services committee, thi this issue was discussed and debated and talked about thoroughly during the markup. i would yield to my friend from new hampshire. i'm so, i thought you gave us two, mr. chairman? mr. levin: you're number two. i think. ms. ayotte: that's fine. mr. levin: if we did not have somebody here, we were going to do two at a time. mr. mccain: yes, i think it's the other side's. mr. whitehouse: madam president? the presiding officer: the senator from rhode island. mr. whitehouse: thank you, madam president, and i appreciate the courtesy of the senator from new hampshire. i will not speak long.

i know she is here waiting to be heard, as we go back and forth across the aisle in sequence. i want to begin by thanking chairman levin and his ranking member, senator mccain, for the work they have done on this issue. they've done a lot of progress and i look forward to continuing work on the floor to try to conclude what i hope will be a successful agreement forren. but i'm here to speak about amendment 1092 of the national defense authorization act, which is the piece that has been put in that responds to the serious and ever-growing problem of counterfeit parts that appear in our military supply chain. our nation asks a lot of our troops. we send them far away. we send them into danger. we ask them to suffer prolonged separation from their families. we ask them to put their life and limb in peril. and in return we have a high

obligation to give them the best possible equipment to fulfill their vital missions and come home safely. and in order to assure the proper performance of our weapons as many as, our body armor, of our aircraft parts and of several other mission-critical parts, we have to make sure that they are legitimate and not counterfeit parts. that's why i introduced the combating military counterfeits act, which was reported without objection by the judiciary committee on july 21 of this year. it is cosponsored by my colleague, senator graham, who i see here on the floor; by the ranking member, senator mccain -- again, my appreciations to him, senator coons, the chairman of the judiciary, senator leahy, senator kyl, senator hatch, senator blumenthal, and i want to thank all of those senators for their support and leadership on this important issue. i particularly want to thank

chairman levin and ranking member mccain for including this in their amendment 1092, which was offered earlier today. senator levin and senator mccain led an in-depth investigation into this problem of military counterfeits and they have drawn on that investigation in making these important reforms that will protect military procurement from counterfeit parts. i'm very glad that they believe, as i do, that enhanced criminal penalties in my bill would provide a useful complement to those important changes. prosecutors have a really important role to play in the fight against military counterfeiters. the criminals who sell counterfeit military products should not get off with light sentences. they knowingly sell the military, for instance, counterfeit body armor that could fail in combat, 0er a counterfeit missile control system that could short-circuit

at launch, or a counterfeit g.p.s. that could fail under battlefield conditions. the combating military counterfeits act of 2011 makes sure that appropriate sanctions attach to such reprehensible activity. first by doubling the maximum statutory penalty by someone who knows that the counterfeit item is for military use and second by directing the sentencing commission to update the sentencing guidelines, as appropriate, to reflect our congressional intent that trafficking in counterfeit military items be punished seriously. sufficiently to deter this kind of reckless endangering of our service members. the administration has called for these increased sentences for trafficking in counterfeit military products. in the private sector, this legislation is supported by the united states chamber of commerce, the national association of manufacturers, the semiconductor industry

association, dupont, the internationainternational trade mcassociation, and the international anticounterfeiting coalition. i thank all of them for their work and leadership on this issue. one semiconductor manufacturer, o.n. semiconductor who has a facility in my home state of rhode island, has written a letter of support explaining that military cornerfits are a -- counterfeits are a particular problem since military products are attractive because they reflect the higher cost to test the products to military spes dpraitions that include the full military temperature range. so it is a target area for counterfeiters, and i will ale say without going on at any great length that the examples are really shocking. the defense department, for instance, has found out in test twhag it thought was kevlar body armor was in fact nothing of the sort. and could not protect our troops the way proper kevlar can.

in another example, a supplier sold the defense department a part that it falsely claimed was a $7,000 circuit that met the specifications of a missile guidance system. a january 2010 study by the commerce department quoted a defense department official as stimulussing that counterfeit aircraft parts were leading to a 5% to 15% annual decrease in weapon system reliability. the investigation led by chairman levin and rank member mccain revealed countless other grave and sobering examples. i'm glad that we are responding to the serious and ever-growing threat posed by counterfeit military parts. again, i thank chairman levin and ranking member mccain for their great work to eliminate counterfeit parts from the military supply chain, and i hope all my colleagues from support their amendment number 1092. and i yield the floor.

the presiding officer: the senator from michigan. mr. levin: madam president, first let me thank senator whitehouse for the extraordinary effort that he's made to go after counterfeit parts. and we have incorporated his legislation in our legislation. it is a critically important part of our legislation. but his leadership has been early, often, strong on this issue, and we commend him for it, thank him for it, and hopefully this amendment, when it gets passed, that there will be a recognition of the critical role that the senator from rhode island played in this, and it is an ongoing i saga to stop counterfeiting coming in, mainly from china, and this would be a major effort to stem that flow. madam president, i yield the floor. mr. mccain: madam president, could i just add my appreciation, words of appreciation along with those. chairman for senator whitehouse's hard work on this. -- on this very important issue. madam president, i yield.

ms. ayotte: madam president? the presiding officer: the snoer from new hampshire. ms. ayotte: thank you, madam president. i rise in opposition to the amendment offered by the senator from colorado to strike the detainee provisions from the defense authorization markup, provisions that were agreed upon on an overwhelming bipartisan basis in the armed services committee. and i'd like to start first by revisiting the history of this and where we are because, the reason that the armed services committee in the first place thought it was very important that we discuss this issue in committee and address it that having participated in hearings over the course of months and months in the armed services committee, there has been witness after witness from our

defense department, who has come in, and our military leaders, who we have been talking about the detention policy with and asking them very important questions about where we are and how we're going to ensure that our military and intelligence community has the tools that they need to protect america and also asking them about this issue of detainees and how we're treating them because one of the important facts that my esteemed colleague from georgia, as well as the ranking member, senator mccain, mentioned, is that we have a recidivism rate of 27% from guantanamo, those who have reengaged our soldiers and are back in theater. i was very concerned about it this in armed service committees so that caused us to ask about the administration's detainee policy. i want to

share kph-ft comments made over that -- share kph-ft comments made over that period of time. the secretary michael vicer said we're in the final stages of revising the detention policy. that was eight months ago and we're ten years into this war. in april i questioned general carter hamm, the commander of africa command about what we would do if we captured a member of al qaeda in africa. you know what he told me? he said -- quote -- "we need some lawyerly help on answering that one." this is an area that cried out for clarification on a bipartisan basis because it's so important to ensure that while we remain at war with terrorists that we have the right policies in place to protect americans. and that's why the armed services committee worked very hard. i want to thank the chairman of the committee, chairman levin for his diligent work along with other members of the committee

for coming forward with this provision that the senator from colorado is seeking to strike as well as the ranking member, senator mccain. and what ended up happening is we brought forward a compromise that passed whoefrplgly out of -- overwhelmingly out of committee in june, in fact, it passed out 25 to 1. and then the administration raised some concerns about it. and in reaction to those concerns, i know that the chairman of the armed services committee as well as the ranking member and some others of us, including myself, sat down with members of the administration to hear out their concerns and to try to accommodate their concerns while still making sure that we had a policy that would give proper guidance, would protect americans, and would fundamentally deal with this

issue of making sure in the first instance that we reaffirm our authority that we're at war with al qaeda post-9/11. second, reaffirming that when we're at war, the presumption is military custody because the priority has to be gathering intelligence to protect our country. and then, third, those who are released from guantanamo, making sure that there's a standard in place so that they can't reengage back in the battle to harm our troops, our partners, our allies. and in that process, that's how this provision that senator udall from colorado seeks to strike with his amendment, is if we were to eliminate these provisions, we would be putting our country in a position where these important issues are not being addressed, and they need

to be addressed just based on what we have heard from our military leadership over many months in the armed services committee. and so i would also echo what senator chambliss, who is the vice chairman of the intelligence committee, said. this is an issue that has been thoroughly discussed in this body and cries out for passage in the defense authorization act. i wanted to point out a couple of very, very important parts to this. now i'm someone who on the recent appropriations bill, the c.j.s. appropriations bill brought an amendment that would have provided for military trials, commissions trials for members of al qaeda and associated forces who are committing an attack against us or our coalition partners,

because i am deeply concerned that this administration has been treating these types of cases as common criminal cases. when i brought that amendment forward, it did not pass this body. i still feel very strongly that the policy should be that we treat these cases for what they are, military cases, because we remain at war and our priority should be to gather intelligence. but i wanted to point out the fact that after my amendment lost, i sat down with the chairman of the armed services committee, the ranking member, and the administration to hear out their concerns. and so while this amendment, i would have gone further in my amendment, this amendment addresses many of the objection that were raised. in fact, i think all the objections that were raised to the amendment that i brought to

the floor from the other side. and that is we have given the administration flexibility to make the decision on whether or not they believe it's appropriate based on national security concerns, which has to be the primary concern and consideration to treat those who have committed an attack on our country who are members of al qaeda or associated forces and also who are not members of this country, who are foreign citizens and are seeking to attack our country or have attacked our country in a way that the administration can decide is it best to handle them in a civilian court or a military system. so all of the objections that were raised to my amendment, i stand by my amendment, but they are addressed in this compromise. and to hear the objection to it

that there isn't flexibility, that's very clear that that's just not true when you look at the language in this amendment. because we adjusted the amendment to address the administration's concerns to say no interrogation will be interrupted based upon this amendment, that interrogation has to be the priority. and we're giving the administration maximum flexibility under this amendment. so i don't understand why there are such objections continuing when this is as a result of a very good, strong, good-faith effort to address any operational concerns that were raised based on the amendment that i brought and even based on the prior language, which, in my view, i think was very sufficient. i want to point out something that's very, very important. in the course of the discussions we had with the administration

on section 1031, which we've heard cited as a section that could be used to detain americans indefinitely, this section was changed based on feedback from the administration. in fact, the administration asked us to actually strike a provision in it that would have said that american citizens, it did not apply to american citizens and in fact had to comply with the constitution of the united states. so i'm a little bit apoplectic to understand why the administration is raising an objection about something that they actually asked to be removed on a section that they told us they were satisfied with. and based on revisions that we made that they wanted, and we said we'd be happy to make these accommodations because we want to make sure that we get this

right. so on that section, i really don't understand why we are in a position where the senator from colorado is trying to remove it. the administration is objecting to it, when we took the thrapblg that they -- took the language that they gave to us and incorporated it directly into the national defense authorization act. one point i think is being lost here, so why is it that this amendment creates an initial presumption for military custody. this is the most important point here. the priority has to be in protecting american citizens by gaining valuable intelligence to protect our country. the esteemed senator from illinois cited the case of the so-called christmas day or underwear bomber as an example

of how cases have worked well. well, i think it's really important to appreciate the facts of that case. this is the situation where the christmas -- the underwear bomber is caught with the explosives strapped to him, where there are hundreds of witnesses on the plane, and they were able to make their case in the absence of any interrogation or confession. and what ended up happening is he was questioned at the scene for about 50 minutes, and then he was read his miranda rights, one of those being you have the trite remain silent. let's think about that for a second. we would want to tell terrorists you have the right to remain silent? common sense will tell you telling a terrorist you have the right to remain silent is counter to what we need to do to protect americans.

we don't want them to remain silent. we want them to tell us everything that they know. but continuing on with that case, the only reason that he reengaged in providing information for our country is because his parents intervened. weeks later his parents convinced him that he should cooperate with us, that he should provide information and tell us what he knew. if our interrogation policy for people who commit attacks on our country is going to be, well, we hope that a parent comes and intervenes to help us get information that will protect americans. i think that we're in trouble if that's our intelligence-gathering procedure. so i just wanted to point out since that case was cited as an example by the senator from colorado and the senator from illinois as to why this section

should be struck. if anything, i think that case points out why we need guidance in this area and why it's very, very important that the priority be on gathering intelligence. and that's what this amendment does. it gives the administration sufficient flexibility based on concerns that they raised, operational concerns. if the f.b.i. is conducting an interrogation, they do not have to stop it because of anything in this provision. that's very, very clear. if the administration wants to treat someone in a civilian court, even though i don't think they should versus a military commission who is a member of al qaeda, who has attacked our country. that waiver is in here. that flexibility is in here. this was a reasonable compromise where people like me who would have gone a lot further didn't get what we wanted. but what we did do is get a

very, very strong bipartisan compromise that came out of this committee overwhelmingly. when we had a vote at the beginning this week, and the senator from colorado raised the very same amendment to strike this provision, it was rejected overwhelmingly on a bipartisan basis. so i hope that this floor will also overwhelmingly reject striking this very important provision from the national defense authorization act. again, we can't be in a position where we spend the next year in the armed services committee again hearing from our military leaders. the administration is still in the final stages of revising or establishing its detention policy. and i certainly don't want to hear again from one of our generals when i ask him about our detention policy and what

we're going to do with terrorists, that i need some lawyerly help on answering that one. this amendment gives us the guidance we need. i would ask my colleagues to reject striking it from the authorization. thank you very much, madam president. i yield the floor. the presiding officer: the senator from california. mrs. feinstein: thank you, madam president. i view the detention provisions of this bill as really pernicious, as an attack on the executive power of the president, and contrary to the best interests of this nation. and so i rise to express my strong opposition to these three detention provisions in the defense authorization bill. there was some discussion on the

floor earlier about having the intelligence -- that the intelligence committee reviewed these. i would like to read a letter that i sent to the majority leader that was signed by every democratic member of the intelligence committee on october 21. "we write as members of the senate judiciary committee because there are some judiciary committee members on this and the select committee on intelligence to express our grave concern with subtitle d, titled defense matters of title 10 of s. 1253, the national defense authorization act for f.y. 2012. we support the majority of provisions in this bill which further national security and are of great importance, but we cannot support these controversial detention positions. and then we go on to say -- and i won't read the whole thing. i will put the whole thing in the record -- the executive

branch must have the flexibility to consider various options for handling terrorism cases, including the ability to prosecute terrorists for violations of u.s. law in federal criminal courts. yet taken together, sections 1031 and 1032 of subtitle d are unprecedented and require more rigorous scrutiny by congress. section 1031 needs to be reviewed to consider whether it is consistent with the september september 18, 2001, authorization for use of military force. especially because it would authorize the indefinite detention of american citizens without charge or trial. the indefinite detention of american citizens without charge or trial. indefinite detention.

we have not ever done this before, except when i can think of that's maybe during world war ii incarcerating japanese americans. this is a very serious thing we're doing, and people should understand its impact. i'd like to outline provisions that would further militarize our counterterrorism efforts, ignore the testimony and recommendations of virtually all national security and counterterrorism officials and experts. we have heard from the secretary of defense, the attorney general, the counsel general of the defense department and john brennan, the assistant to the president for homeland security and counterterrorism. every one of them opposes these provisions. they have to carry them out. they have the professionals responsible for so doing. and yet, we're going to countermand them.

the first problematic provision i want to discuss requires mandatory military custody with no consideration of the details of individual cases. section 1032, the bill mandates military detention of any non-u.s. citizen who is a member of al qaeda or an associated force, whatever that may be, and who planned or carried out an attack or attempted attack on this country or abroad. here's the problem. the armed services committee ignores the administration's request to have this provision apply only to detainees captured overseas. therefore, any noncitizen al qaeda operative captured in the united states would be automatically turned over to military custody. military custody for captured

terrorists may make sense in some cases, but certainly not all. requiring it in every case could harm our nation's ability to investigate and respond to terrorist threats and create major operational hurdles. for example, the f.b.i. has 56 local field offices around the country. it's staffed with agents who can arrest, interrogate, detain. the military does not. as has been the policy of republican and democrats presidents before and after 9/11, the decision about where to hold a suspected terrorist should be based on the facts of each case and should be made by national security professionals in the executive branch. i deeply believe this. secretary panetta said this week that this provision, and i quote, restrains the executive branch's option toss utilize in a swift and flexible fashion all

the counterterrorism tools that are now legally available. he added that the bill as written, and i quote, may needlessly complicate efforts by front-line law enforcement professionals to collect critical intelligence concerning operations and activities with the united states. this is the man that ran the c.i.a., that's now running the department of defense, and we ignore it. it doesn't make any difference what he says. well, i'm not part of that school. i think it does make a difference. i'd like to ask unanimous consent to enter secretary panetta's november 15 letter into the record. the presiding officer: without objection. mrs. feinstein: thank you, madam president. let me explain why this proposal is bad policy. consider one case. naja bula azzi. he was arrested in september of 2009 as part of an al qaeda conspiracy to carry out suicide

bombings on the new york city subway system. the f.b.i. arrested zazzi after they had followed him for several months 24/7, and he began providing useful intelligence. if the mandatory military custody in the armed service bill was law, all of the surveillance activities, all of what the f.b.i. did would have to be transferred immediately to the military, and instead of interrogating him about his co-conspirators or where he had hidden other bombs, the f.b.i. would have had to have squandered valuable time determining whether zazzi was a member or a part of al qaeda or an associated force, requiring law enforcement and national security professionals to determine whether an individual meets a specific legal definition as a delay.

most people would have to admit this, while a waiver process proceeds through the secretary of defense, both of them to immediately interrogate an individual or prevent another attack. and suppose a terrorist like zazzi was forced into mandatory military custody. then the government would have been forced to split up co-defendants, even in cases where they otherwise could be prosecuted as part of the same conspiracy. zazi was a permanent legal resident. his co-conspirators were both u.s. citizens. they would be prosecuted on terrorist charges in federal criminal court, but zazi himself would be transferred to military custody. two different detention and prosecution systems would play

out and could welcome play kate a unified prosecution. incidentally, in the zazi case, prosecutors have obtained convictions against six individuals, including guilty pleas from zazi who faces life in federal prison without parole. what could be better than that? you know, if it's not broke, don't fix it, and what's happening now isn't broke. that's the point. and guess what? madam president, we watch daily. i try to do my homework. i read the intelligence. i try to know what's happening, and it is working. the government has its act together, and now arbitrarily, this is going to change because there is a predilection of some people in this body that the military must do it all, and if they can't do it all, a part of it. but what this does is

essentially militarize certain criminal terrorist acts in the united states, and i have a real problem with that. i don't understand why congress would want to jeopardize successful terrorism prosecutions. now, the former speaker was talking about umar if a rook abdullmullatah, better known as the underwear bombing. he was brought into custody in detroit after threatening to set off a bomb on a flight. he was interrogated immediately by f.b.i. special agents, and he talked. some critics contend that he stopped talking later that day because he was mirandizeed. that happens to be correct. but what these critics don't mention is that he likely would have been even less forthcoming to military interrogators.

it was f.b.i. agents who traveled to his home in nigeria and persuaded family members to come to detroit to assist them in getting him to talk. the situation would have been very different under section 1032. under the pending legislation, the f.b.i. has assessed to us that it would have been military personnel who were attempting to enlist prominent nigerians to assist in military interrogations, and abdulmutallab would have been classified as an nesm combatant to be held in a military facility, and therefore his family would not be inclined to cooperate. i can't say for sure whether that's true or false, but i can tell you that we have been told that. for the record, abdul mutallab pled guilty to all charges last

month in a federal criminal court in michigan and will likely spend his life behind bars. what can be better than that? where can the military commission come close to that effort? in fact, they can't. six cases, minor sentences, released, plus 300 to 400 convictions in federal court. to conclude on this mandatory military custody provision, the defense department has made clear it does not want the responsibility to take these terrorists into mandatory military custody, but we know better? i don't think so. the department of justice has said that approximately one-third of terrorists charged in federal court in 2010 would be subject to mandatory military detension, absent a waiver from the secretary of defense. the administration contends that

the mandatory military custody is unwise because our allies will not extradite terror suspects to the united states for interrogation and prosecution or even provide evidence about suspected terrorists if they will be sent to a military brig or guantanamo. finally, the military isn't trained or equipped for this mission. they have plenty to do as it is. the department of justice is. as john brennan, the assistant to the president in homeland security and counterterrorism said in march, terrorists processed exclusively through arrested inside the united our criminal justice system, as states will, as always, be they should be, and i agree. the alternative would be inconsistent with our values and our adherence to the rule of law. our military does not patrol our streets or enforce our laws, nor should it. end of quote.

i could add to that, our military doesn't spend six months surveiling nasa a -- zazi, to know the amount of chemicals, to know what backpacks they had, to follow him to new york. it makes no sense to me to have to transfer that jurisdiction. the second problematic provision imposes burdensome restrictions to transfer detainees out of guantanamo. section 1033. this provision essentially establishes a de facto ban on transfers of detainees out of guantanamo, even for the purpose of prosecution in united states courts or in other countries. the provision requires the secretary of defense to make a series of certifications that

are unreasonable and candidly unknowable before any detainee is transferred out of guantanamo. again, an example. the administration proposed eliminating the requirement that the secretary of defense certified that the foreign country from whence the detainee will be sent is not -- quote -- "facing a threat that is likely to substantially affect its ability to exercise control over the individual." how can the secretary of defense certify that? facing a threat that is likely to substantially -- not just affect, but substantially affect its ability to exercise control over the individual. what does it mean for a nation to exercise control over a former guantanamo detainee?

does he have to be in custody? can very an ankle bracelet? is he remanded to his home? is he in some county facility somewhere? what does it mean? the secretary of defense must also certify in writing that there is virtually no chance that the person being transferred out of an american custody would turn against the united states once resettled. virtually no chance that anyone would turn against the united states once resettled. i agree with the sentiment but as it's written, this is another impossible condition to satisfy. the administration tried to work with the armed services committee to make this section more workable, but the input by professionals in the defense, law enforcement, and intelligence communities quite frankly was rejected. the committee didn't address the concerns of the administration

except to limit these restrictions to one year. in his november 15 letter, secretary panetta wrote that he was troubled that this section remains essentially unchanged and that none of the administration's concerns or suggestions for the provision were adopted. this in itself is a concern. the views of the professionals who do this day in and day out should be considered. we're not on the streets. we're not shadowing terrorists. we're not putting together intelligence. so i find this just terribly impeer yus -- imperious. the third reverses the process of reviews for those detaped at

guantanamo. i support the detention of terrorists upped the law of war. there must be a way to hold people who would, if free, take up arms against it. but detention without charge, fraps forever, is a power -- perhaps forever, is a power that must be subject to serious review to ensure it is applied correctly and that we are only holding people, in some cases for decades, with cause and careful consideration and review. incidentally, madam president, this would apply to united states citizens. do we want to go home and tell the people of america that we're going to hold them if such a situation comes up without any review, without any habeus? it's just not the american justice system. in march, the president issued

an executive order that laid out the process for reviewing each detainee's case to make sure indefinite detention continues to be an appropriate and preferred course. section 1035 essentially reverses the interagency process created by the president's order. now, let me just say a few things about this process. the secretary of defense is in charge of the decision, he is allowed to reject the findings of an interagency review board that includes a senior official from the state department, the department of defense, the justice department, d.h.s., the office of director of national intelligence, and the office of the chairman of the joint chiefs of staff. and they together review a case

of a person who could be held forever without trial, without charge, and they can deliberate on the kind of threat this individual continues -- you know, they're people, they're in guantanamo, or i should say who were in guantanamo who were simply in the wrong place at the wrong time. and that's possible for an american as well. and everything we're all about is to see that the system is a just system. this is not just. and particularly not for united states citizens and i don't care who they are, they have certain rights under the constitution as a united states citizen. why should we place the department of defense above the unified judgment of five other departments on what is at its heart a question about the legality of continued detention, the assessment of the threat a detainee poses,

and the options available to handle that individual? secretary panetta is not requesting the new authority in this section. again reading from the secretary's november 15 letter, he says, and i quote, "section 1035 shifts to the department of defense responsibility for what has been a consensus-driven interagency process that was informed by the advice and views of the counterterrorism professionals from across the government. we see no compelling reason and certainly none has been expressed in our discussions to date to upset a collaborative interagency approach that has served our national security so well over the past few years." let me conclude by saying that i

support the vast majority of provisions in this authorization. the bill improves our national security, it is essential to meet our commitment to the men and women of our armed forces and i understand all of that and i have voted for virtually every defense authorization bill. but i intend to continue to oppose these three detention policy provisions. i've not made up my mind, candidly, how i will vote on this bill. i guess maybe i see things a little differently than many in this body because one of the things that i have learned in my time here is the importance of the united states constitution. i've had 18 years on the judiciary committee, and what it means to have due process of law. and that's for everybody. that's for the poorest person on the street, the most ignorant person around, the wealthiest

person whomever it is, criminals are entitled to due process of law. how can we do this -- i don't think it will stand the test of constitutionality but be that as it may, despite having raised these concerns months ago and offered suggestions to address them, this bill does very little to resolve my three principal concerns and those of the administration about mandatory military custody and the possibility this bill will create operational confusion and problems in the field. so, madam president, i look forward to the debate. i candidly hope sides haven't hardened. the three bills that i will --

three amendments i will make, one will strike the language, one will strike abroad, and one will carry with it the administration's proposal. and i hope there will be the opportunity to offer these amendments. i can't think of anything more serious that we're doing, and i must tell you, a lot of effort has gone into putting the f.b.i. in a position by creating a huge intelligence operation within the federal bureau of investigation to be able to deal with terrorist threats in this country. we have a department of homeland security to do that as well. and now to say, you know, the military are going to take over in certain situations, i think is going to end up unworkable if in fact this becomes the law, and i hope it will not. so thank you, madam president.

i yield the floor. the presiding officer: the senator from michigan. mrs. feinstein: would the senator desist for one minute? i ask unanimous consent that shannon gorrelle a defense fellow in my office be granted floor privileges for the duration of the debate on this bill. the presiding officer: without objection. mr. levin: i wonder if the senator from california might offer those amendments right now and call them up so we can get a vote on them. we're trying to get -- we're trying to vote on amendments here and wonder if you could call up one of those amendments, we could debate on it and vote on it because we really need to vote on amendments. mrs. feinstein: when i found this bill was coming up was this morning. so from this morning the administration is reviewing the largest amendment at the present time. the other two amendments we may

already -- have we filed those? we have filed those. and i would really prefer to wait until we have the larger amendment, which is being reviewed by the administration, to make a decision as to which i want to go with. mr. levin: which amendment is the larger amendment? mrs. feinstein: this is the amendment currently being reviewed by the administration. mr. levin: was that one of the three? which one was that? which was the larger one? if you could just describe it for us. mrs. feinstein: this is several amendments. mr. levin: which of the three was the one that is currently being reviewed if you're able to share that with us? mrs. feinstein: this essentially would strike the detention provisions and replace them with proposals from the executive branch. it reflects what the white house offered to you, senator levin, and senator mccain, as

compromise language on the detention provisions to address the opposition raised by the administration. i have more i could say but i'm not sure -- mr. levin: that helps. mrs. feinstein: okay, thank you. the presiding officer: the senator from south carolina. mr. graham: i'd like to thank senator levin and mccain. i don't know, carl, how long we've been working on this together. it seems like forever, trying to get detainee policy in the post-9/11 world that the courts will accept, that lives within our values. i just have been thinking throughout the years the journey we've taken beginning in the bush administration where the idea of indefinite detention of unlawful enemy combatants

originated by executive order. i really do believe that after 9/11 we're a state of undeclared war with the organizations like al qaeda, the congress has created legislation early on, right after the attacks of 9/11, allowing the president to use military force against al qaeda. and part of being able to engage someone militarily is to detain those that you capture. but that's been years ago. and this is the first time congress has spoken since the early days of the war. and we've tried in the bush administration to work with the bush people to create a detention system by statute. we had a problem there. they felt like the executive order was the way to go. i've always believed when the congress and the white house works together, the courts appreciate it as being a more collaborative process. so we went from sort of one

extreme to where we had military commissions that were almost legislating a conviction, to a better product, the end product was the 2009 bill that we worked on with senator levin that got almost 80 votes. so we've come a long way. now, about the detention issue. here's what i've been trying to accomplish for: i want -- for years. i want to make sure that we understand the difference between fighting a war and fighting a crime. and when it comes to al qaeda operatives, whether they're captures in -- captured in the united states or overseas, the first thing we should be doing as a nation is trying to find out what that person knows about the attack in question or future attacks. when you capture an enemy prisoner, the first thing our military does is turn the person over to the military intelligence community for questioning.

now, i'm of the belief that we have the ability to question people under the law of war, without congressional authorization, but when the congress acts, it's better for us all. so in this bill working with senator levin and mccain, we have as a body said that the president, this president and all future presidents, will have the ability to detain a member of al qaeda and other allied organizations regardless of whether they're captured in the world and hold them as an enemy combatant. now, under the law of war, when -- under the law of war, when you capture an enemy prisoner, there is no magic date that you have to let them go. the problem with this war, unlike other wars, there won't be a definable end.

so we had 400,000 german prisoners in military prisons inside the united states during world war ii. we weren't going to let those folks go if they'd been in jail a year. not one of them got to go to see a federal judge say hey, let me out of here. because under the law of war, our military, the executive branch of government, has the authority to protect the nation and courts have not interfered with that 200-year right. what's different about this war? there are no capitals to conger, no navy to shoot -- air force to shoot down or navy to sink. we have people who don't wear uniforms and they don't have a home country, they have a home idea and we're fighting an ideology. sometimes they make it to our soil and sometimes they don't. so here's what we're trying to do. we're trying to create a hybrid system for lack of a better word. if you captured an al qaeda member overseas in afghanistan,

iraq, or yemen, it is clear that they have no constitutional right to petition a judge in the united states, let me go. when we put people in guantanamo bay, the bush administration argued that that prison wasn't subject to legal review by our courts. and the hod the hogden case, the supreme court ruled that we could hold an american citizen as an enemy combat apartment. they suggested to the bush administration a procedure to ratify that decision. they pointed to an army regulation -- 190-i can't remember the number, and we tried to come up with a procedure that would allow us some due process as a nation for member combatant, including an american citizen. the court in the boomadine case

said wait a minute, we're going to allow a habeas petition by those held as enemy combatants, american citizens or non-american citizens if they are at guantanamo bay because we have control over that facility. that's part of the united states in terms of our legal infrastructure. so the law of the land is that if you're captured overseas, even if you're an american citizen, you can be held as an enemy combatant, questioned by our military, with no right to proceed to a criminal venue. it is not a choice to try them or let them go. you can hold an unlawful enemy combatant for an indefinite period of time, just like you could hold any other enemy prisoner in any other war, but what we have done differently in this war is we have said that our courts will review the military's decision to declare you as an enemy combatant in a habeas procedure. not a criminal trial, but a habeas procedure as to whether or not there is sufficient evidence to label you as an

unlawful enemy combatant. so to my colleagues on the other side, the law of the land by the supreme court is that an american citizen can be held as an enemy combatant, like every other enemy combatant, they have habeas rights but they don't have the right to say try me in a civilian court or military commission court, because when we capture someone, the goal is to gather intelligence. the christmas day bomber, the times square case, the reason that many of us want military custody from the outset is under domestic criminal law, other than a very narrow public safety exception, we don't have the right under criminal law to hold someone for an indefinite period of time without providing them a lawyer and telling them what their legal rights are or charging them in a court of law. and let me say, as a military lawyer, i would never want that to be the case. i don't want to change our

domestic criminal system to allow us to grab someone and hold them indefinitely pending criminal charges without a right to a lawyer, a right to remain silent being presented to the defendant and presentment to court, because that's what criminal law is all about. under military law, whether it's here at home or abroad, you can hold someone suspected of being an enemy agent, enemy prisoner and you can interrogate them humanely and lawfully, and we have got good laws now governing interrogation procedures, without having to present them to a court. that's the difference between intelligence gathering and fighting a crime. the padilla case was an american citizen captured inside the united states. he was held for about four years in charleston at a naval brig, and the fourth circuit court of appeals ruled yes, an american citizen captured within the united states can be held as an

unlawful enemy combatant, but they have the right to counsel when it comes to presenting their habeas case. they don't have the ability to tell the interrogator and the military i don't want to talk to you now, i want my lawyer. when you're talking to a military interrogator or the f.b.i. or the c.i.a., trying to gather intelligence, you don't have a right to remain silent, you don't have a right to a lawyer because we're trying to defend ourselves against an enemy bent on our destruction. the day we decide to treat you as a common criminal, even a terrorist suspect, all those civilian rights attach. so this bill is trying to create a process that if you're captured in the united states, this legislation says that you will be presumptively put in military custody because that's the only way we can hold you and interrogate you, because under domestic criminal law, that's not available nor should it be. now, there is a waiver provision

here. if the administration believes that military custody is not the right way to go, they can waive that, but the day that you turn someone over to civilian authorities for the purpose of prosecution, you have a very limited window to gather intelligence because all the criminal rules apply, and what we're trying to do is make sure that we can defend ourselves and not overly criminalize the war. that's why this is so important. to the white house's concerns, they wanted to have that flexibility without any statutory involvement. i believe this will serve the nation well long after president obama leaves office. i don't know who the next president will be, but i do believe this -- we will be under threat and siege by an enemy bent on our destruction. so if you believe, as i do, that we're at war but it's a different kind of war, please give your nation, our nation,

the ability to defend us. and the best way to be safe in the war on terror is to gather good intelligence and hit them, stop them before they hit you, because they could care less about dying. so intelligence gathering is the way to keep us safe. most enemy prisoners captured in traditional wars never go to court. the last thing i'm worried about is how you prosecute these guys. the first thing i worry about is what do they know and what is coming our way. so the provisions of 1032 apply to captures within the united states, and we're saying that when an al qaeda operative suspected of being involved in a terrorist act, a very limited class of cases, by the way, is captured on our soil, we would like them to be in military custody from the get-go, but we have provisions that say you don't have to make that decision

or interrupt an interrogation. there is the windows of time that you can treat, that you can deal with the case without having to make the waiver. we're not impeding interrogations, and we're not saying you have to stay in military custody forever because you give the administration and future administrations the flexibility to waive that provision if it makes sense. to the christmas day bomber, he was read his miranda rights, within an hour his family was involved, and it turned out he pled guilty. i'm not a professional interrogator, but i do know this -- that you don't read an enemy prisoner their rights when you capture them on the battlefield in a war. the question is is the united states part of the battlefield? that's really what this is about. are we going to allow the enemy to get here and all of a sudden all the rules change because they made it to our homeland? i would argue the closer they

are to us, the more we want to know. so it would be an absurd outcome that if somehow the enemy could find a way to get to our homeland, that all the rules change, because if you capture one of these guys in yemen, nobody is suggesting that you have got to give them a lawyer. but when you get to the united states, what we are suggesting is that we have a legal system that understands the difference between fighting a war and fighting a crime, and if you are suspected of being an al qaeda member, citizen or not, we're going to find out what you know through lawful interrogation techniques, and that has to be done under the military system because civilian domestic criminal law doesn't allow that to be done. that's what we have created here, a bifurcated system with waivers. and if we don't have this in place, we're going to lose intelligence and we're going to get our nation -- our nation is going to be at risk. people are going to get killed if we lose good intelligence.

so the idea of reading someone their miranda rights, to me, doesn't make a lot of sense, but you have the flexibility to do that if you choose out in the field. you have just got to get a waiver. so when you capture somebody on the homeland, i don't want our people to think you have got to give them a lawyer and read them their rights and you can't question them about what they know about attacks against our homeland. that is dumb. that doesn't make us a better people. that makes us less safe. let's put them in military custody with a right to waive that. let's give our interrogators plenty of time to find out what's going. then we'll make a decision about where to prosecute. i believe that federal courts have a role in the war on terror. there have been plenty of cases involving terrorism that went to federal court where you had a good outcome. there have been cases going to federal court where you had less than a stellar outcome. the key is if you're holding an enemy combatant for four or five years under the law of war, i don't think it makes sense to

put them in civilian court. you should put them in military commissions. and we're talking about people we have been holding for a people of time because we look at them as a military threat, not as a common criminal. so the provisions in 1032 are to me good law that will stand the test of time. it will allow us on our homeland to do what we can do overseas, and wouldn't it be odd not to be able to protect yourself because the enemy got to the united states less than you could if you captured them overseas. so -- now, let's talk a little bit about american citizens. there are few people, and i give them credit for having passionate, honest-held beliefs, that the president of the united states doesn't have the authority to designate an american citizen who has now joined al qaeda to -- to issue an order to hill him, this awlaki guy that was in yemen.

the bottom line is the president through a legal process we have created years ago made a determination that an american citizen has joined the enemy forces, and he issued an order through a legal process that says if you find this guy, you can capture or kill him. now, wouldn't it be odd that if you had a law that says you can kill somebody but when you capture him, you can't hold him for a very long time, you can't indefinitely detain him? well, death is pretty indefinite. so if you can kill a guy, why in the world can't you hold him and interrogate them to find out what they know about this attack or future attacks? so let's be consist tent. it makes sense to me that if an american citizen wants to join al qaeda, they are no longer our friend, they are our enemy. and if the evidence is solid and if it's gone through a legal process and this president or

any other president determines that an american citizen is now operating abroad trying to -- trying to harm us, join al qaeda, i believe have the absolute legal and moral authority to identify that person as a threat to the united states, kill or capture. and if you don't agree with me, fine. i think about 80% of my fellow citizens do. it would be absurd not to be able to have that ability. why would you want to give an american citizen -- citizenship is something to be respected, it is something to be cherished. it is not a get out of jail free card when you turn on your fellow citizens. so at the end of the day, we have got a system in place now that i'm very proud of. and to senator levin, we have negotiated and we have compromised because the administration has some legitimate concerns. they had some legitimate concerns about congress overly mandating how you detain, interrogate and try prisoners. what we have come up with is the

balance i have been seeking for five years. if you capture someone in the united states, you start with the presumption that we are going to gather intelligence in a lawful manner and prosecution is a secondary concern. we give the executive branch the ability to waive that requirement, and we have conditions on that requirement that will not interrupt an interrogation. but we need to let this president know and every other president that if you capture someone on the -- in the homeland, on our soil, american citizen or not who is a member of al qaeda, you do not have to give them a lawyer or read them their rights automatically. you can treat them as a military threat under military custody just like if we had captured them overseas. so this provision that senator levin and mccain and ayotte and all of us have worked on makes perfect sense to me. it is a balance between protecting our homeland, living

within our values, giving the executive branch the flexibility they need to protect us, but just using good old-fashioned common sense, you cannot under domestic criminal law hold someone indefinitely without giving them a lawyer or reading them their rights, nor should you. but under military law, if you've got evidence that the person is a military threat, you don't have to give them a lawyer. that makes no sense. when you capture them here or overseas. and everyone held as an unlawful enemy combatant has the right to access our federal courts and under this bill, this is not just one time you get to go to court, we create an annual review process where if you've held as an enemy combatant, ail you'll get an annual review. we don't want you kneeing a black legal hole. we don't want an enemy combatant to be a dephak foe life

sentencesentence. we go further than what the courts require. at the end of the day, we say you have an annual review. now, that requirement is for people captured in the ewings held at gitmo. it doesn't apply to people in afghanistan, thank god doesn't. but in the circumstances of where someone is captured in the united states held at guantanamo bay, every person will get their day in court to challenge the status of enemy combatant, and if they're going to be held indefinitely, they'll get an annual review process as to whether or not it makes sense to hold them for a year. and, again, i just want to emphasize that in war, you don't have to let people go who are a danger. most of these cases are intel cases. we're not fighting a crime. we're fighting a war. and if the intelligence is good enough to convince a federal judge that this person is a

military threat, why in god's name would you want to let them go? because of the passage of time. our message to al qaeda recruits, don't join al qaeda because you could get killed or wind up dying in jail. isn't that the message we want to send? why in the world would we require our nation to release somebody when the evidence presented to a federal judge is convincing enough for him to sign off on what the military determined at an arbitrary point in time? that doesn't make us better people. it would make us less safe. so this bill is a very sound, balanced work product, and i will stand by it. i will fight for it. and i respect those who may disagree, but why did we take out the language that senator levin wanted me to put in about an american citizen cannot be

held indefinitely if caught on the homeland? the administration asked us to do that. why did they ask us to do that? it makes perfect sense. if an american citizen has joined the enemy and we capture them at home, we want to make sure that we know what they're up to and we want to require under law to turn them over to a criminal court where you have to provide them a lawyer an an arbitrary point in time. so the administration was probably right to that i can this out, that if you're -- simply stated, if you're an american citizen and you want to join al qaeda, bad decision. you could get killed or you could spend the rett of your life in military prison as a military threat or you could wind up in an article 3 court and maybe get the death penalty. so i want people to know that there's a down side to joining the enemy and i want to give our country the tools we need as a

nation to fight an enemy and do it within our banks. i don't want to waterboard people but i don't want the only interrogation tool to be the army manual online where everybody can read it. i want people to have the chance to say, i'm not an enemy combatant but i don't want to criminalize the war by capturing somebody and say you have the right to remain silent when you would never have that right to present to them if you captured them overseas. we want to make sure whether we capture them at home or abroad, whj you are an american -- whether you are an american citizen or not, where there's evidence that you've joined al qaeda. and to my colleagues, if you join al qaeda, no matter where you join, no matter where you take up arms against the united states, we have every right in the world to treat you as a military threat. people who have joined al qaeda are not members of a mob. they're not trying to enrich

themselves. they're trying to put the world into darkness. so our laws need to distinguish the difference between a guy that robbed a liquor store and somebody that wants to blow up an airplane over detroit or blow up innocent people in time's square. if you don't understand that difference, and if you don't have a legal system that can recognize that difference, then we have failed the american people. this is a good work product. it had strong bipartisan support. we worked with the administration, but we're in a long war where a lot is at stake. so i have tried to be as reasonable as i know how to be, and this work product is the best effort of a lot of well-meaning people, republicans and democrats, and i will defend it. and if you want to keep arguing about it, some people suggested we will talk a long time about this. yes, we will talk a long time about this. we'll have a good discussion among ourselves as to whether or not an al qaeda operative caught

in the united states gets more rights than if you caught them overseas. we'll have an argument among ourselves as to whether or not our military should be able to gather intelligence and protect us regardless of where the person is captured. and the question for the nation is: is america part of the battlefield? you better believe it's part of the battlefield. this is where they want to come. this is where they want to hurt us the most. and if they make it here, they shouldn't get more rights than they would get if they attacked us overseas. they shouldn't be tortured because it's about us, not about them. the reason i want to torture anybody is because i like being an american. i think it makes us stronger than our enemies. and there's ways to get good intelligence from the enemy without having to minimum mick their behavior. and i do believe that the military's work product should be judged and reviewed in federal court in a reasoned way. that is part of this lesmghts i don't want anybody to be sitting

in jail forever without some review process so that one day maybe they could get out. but here's what i will not tolerate. i will not criminalize what is a war. i will not put this nation in the box of having to capture a terrorist when the evidence is solid that we know you're part of then mi trying to kill us -- you're part of the enemy and trying to kill us or say that we have to let you go because of the passage of time. that makes no sense. so, senator levin, senator mccain, this is a product we should be proud of. if you want to make it a long fight, it will be a long fight. we are not giving up. the presiding officer: the senator from arizona. mr. mccain: will the gentleman yield for a yes? a senator: yes. mr. mccain: i'm a little bit puzzled and maybe the senator from south carolina has a response to this, and perhaps chairman levin does, but we did

give a national security waiver, which is really very generous in that the president just has to certify that it it's in the national interest. why do you think that would not be acceptable if there was a case where an individual would be held by civilian authorities rather tharch military authorities? -- rather than military sthoor sthoorts. mr. graham: there is a legitimate concern about encrouching on safety. i've had that concern. the executive branch is the lead agency in this war. they're the lead agency when it comes to prosecuting crime. but what i'm trying to do along with your help and senator levin is to create statutory authority for this president and future presidents that will serve the nation well. congress has been too quiet and too silent. during the bush years we didn't assert ourselves enough. we let things go and we were reluctant to get involved, and now we're involved in a constructive way. what we've said as a congress,

if this bill passes, that the executive branch has flexibility but the congress of the united states, who has powers when it comes to war, believes that an al qaeda operative, those associated with al qaeda, should be initially held in military custody because we're trying to gather intelligence. as i tried to explain, senator mccain, if you turned them over to civilian authorities for law enforcement purposes, then the whole process of intelligence-gathering stops. you have to read miranda rights, there is a very limited public safety, et cetera. and so we start with the presumption of military custody. we allow a waiver, if that's in the best interests of our national security, and we have requirements in the bill not to impede interrogation. so that's why we're doing this because we want a process that will allow us to deal with people caught in the united states in a consistent way from administration to administration and understand the distinction between gathering intelligence to defend a war and prosecuting

a crime. mr. mccain: and every one we capture may not be as stupid as the one that waived their miranda rights. one is going to be very smart and certainly not waive their miranda rights? wouldn't that make sense? mr. graham: you're absolutely right. the flexibility as to whether or not to mirandize somebody exists. i do know the best start is to take the christmas day bomber off the plane and intier debate him in terms of what he -- interrogate him in terms of what he knows about future attacks, how this planned this adak and worry about -- planned this attack and worry about prosecution. the only way you can do this is through a military custody intelligence-gathering process. so at the end of the day, i just really do believe that it makes a lot of sense for the congress to weigh in. we haven't done it before, and we've balanced this out and the administration's concerns have been met as much as i know how

to meet them, and i'll very proud of the work product. mr. levin: will the senator yield for a a question? mr. graham: yes. mr. levin: the christmas day bomber. i believe he was taken off that plane in detroit, intier debated by the -- interrogated by the f.b.i. is that correct? mr. graham: yes, sir, i think so. mr. levin: nothing wrong with that. the executive branch worked here. we make it flexible. this is something which i have heard today from the supporters of this amendment. they want flexibility. that's exactly what we provide in this amendment. that's the question senator mccain just asked. if this administration or any administration decides that they want to provide the opportunity to interrogate for whatever length they want, they're going to set the procedures under this language in our bill -- is that correct? -- the president will determine the procedure.

if he wants those procedures to be under civilian control until some point, that is going to be up to the president. you may disagree with that or not. mr. graham: exactly. mr. levin: there are members of our body that very strongly disagree with that. but that's not who's going to decide. we're not going to make the decision that the person is going to be given or not given civilian interrogation. that decision is going to be made by a president who sets the procedures for interrogation and will decide whether or not to provide a waive. is that correct? mr. graham: that's correct. now, just for a minute, would you agree with me that if we all of a sudden required our soldiers to read miranda warnings to an al qaeda operative caught in afghanistan, the people would think we're crazy. mr. levin: i would think it would be a very bad policy. mr. graham: okay. what if you have the same person who made it out of afghanistan and gets to america. i think most people would want

us to find -- to gather intelligence, to find out what's coming next. would you agree with me, senator leaf un, that if you put someone in civilian control for the purpose of prosecution, intelligence-gathering becomes very difficult? mr. levin: not necessarily. i think there are occasions where the civilian interrogation may be actually more workable. mr. graham: okay. fair enough. but that -- but do you agree with me that you cannot indefinitely hold someone under domestic criminal law without presenting them to the court or reading miranda rights? mr. levin: that's right. how long that last lasts is a procedure which the president -- mr. graham: but herees's the point we're trying to maifnlgt that some of us present that a presentment to a court and a miranda warning may not be the best way to go in terms of gathering intelligence. under military custody for intelligence-gathering, there is no right to remain silent. do you agree with that? mr. levin: under military

custody, yes. mr. graham: so we're starting the game with military custody but for the reasons you just said -- and they may be good reasons to say that's not the right way to go -- they can go down another path. and that's all we're trying to do because there is a sort of a gap when it comes to someone caught in the united states. we're trying to provide clarity what to do with an al qaeda member caught in the united states to create flexibility but start the process with intelligence gathering because in the united states if you hold someone under the law enforcement model caught in the united states, you have to read them their rights, you have to present them in court, if they are in military custody, you don't have to do that. but what situation fits the situation best should be left up to the executive branch. we're creating an avenue for military custody that can be waived. mr. levin: that's correct. we're ploying flexibility, which we should provide in order for the executive branch to have what they want, which is the flexibility. there are many -- i think many

of our colleagues -- who believe there is too much flexibility. mr. graham: oh, yeah, they're over here. mr. levin: whether that's right or wrong, the facts are that in this bill, there is flexibility. it's carefully laid out. the president will lay out the procedures and notify the congress of those procedures.ñ but the point is we do provide the very flexibility that the president of the united states has sought. we give them that flexibility. and it seems to me for the characterization of this bill to be that there is no flexibility, that somebody must go into military detention, is inaccurate. we ought to debate policy, but we should not debate what the words of a bill are. one other thing: is it not correct that when it is said, as the senator from california did, that this provision has an unprecedented and new authority for indefinite detention of

american citizens without trial, that as a matter of fact that we have in section 1031 in the bill filed months ago language which would have exempted american citizens. and it was the administration that wrote 1031 the way it is now and has approved of that language? mr. graham: let's talk about indefinite detention and what it means. when someone is captured as a member of al qaeda, the bush administration has had people at guantanamo bay for years, who are being held under the law. do you agree with that, senator levin? mr. levin: i'm sorry. mr. graham: the bush administration has prisoners held at guantanamo bay for years now who have not been prosecuted, being held under the law of war. the obama administration has continued to hold at least 48 under that same theory. mr. levin: believes it has that authority. mr. graham: i believe they're right.

all the congress is saying to the president, this one and future presidents, that we agree with you that if the person is a member of al qaeda or an affiliated group, you can hold them as an enemy combatant without the requirement to let them go at an arbitrary point in time. under the law if they're at guantanamo bay or captured in the united states they have a habeas write to appeal that determination to a judge. under our bill, do you agree with me, senator levin, that we've done more than that. we've created an annual review process so the person being indefinitely held will have some due process every year? mr. levin: the senator is correct. the senator led the way to have this kind of additional protection. there is greater protection in this bill because of that review process than there is without this bill. mr. graham: and we should do that. mr. levin: if i could, senator mccain, one other question, the senator is an expert in the subject. is it also not true that for the

first time in terms of determining whether or not a person is in fact somebody who needs to be detained under the hrauf war, for the first -- law of war for the first time when that determination is made, that person is entitled to a lawyer and entitled to a military -- mr. graham: you're dead right. i offered an amendment to the first bill we put on the table here on the floor about this, and i had a requirement of the military lawyer being given to the respondent at a combat status review tribunal. every person being held as an enemy combatant by our military gets a combat military status tribunal. we're saying that has to be chaired by a military judge. and we're saying, they have now, they can access a lawyer. that, to me, is a welcome change ed obama administration and the

bush administration decided to put the military judge requirement in place but this is a stat tower requirement. -- statutory requirement. the next president is going to be required to do that. we're trying to create a process to allow a status tribunal hearing to be done more like a, in a more due process-friendly fashion. we require a judge and we provide access to counsel. to me, that is a giant step forward. mr. levin: and in law for the first time, is that not correct? it would be law. mr. graham: it is not the whim of the administration. it will be the law of the land. mr. mccain: if this bill is enacted. mr. graham: if this bill is enacted. mr. mccain: to kind of summarize this issue for our colleagues, we believe that an al qaeda operative is an enemy combatant. and, therefore, the assumption should be that that enemy combatant should be under

military custody whether it be in the united states or anyplace else in the world, i would argue especially in the united states since that poses the greatest threat. and, however, with our assumption that that person should be held under military custody, we still give a very wide waiver in case there are extenuating circumstances. in other words, we're saying that we assume that an al qaeda operative or an suspected al qaeda operative is an enemy combatant wherever they are on earth. and, therefore, they should be under military custody unless there is some reason that the president determines otherwise. now the counter argument we're hearing really in summary is that because that al qaeda operative is apprehended in the united states, that, therefore, that they should fall under civil authority, thereby negating the assumption that it's an enemy combatant. it is a common criminal.

so, you know, this is a very important principle in this discussion that we're having. how do you treat a suspected al qaeda terrorist that wants to -- in the case of the underwear bomber, blow up a plane with 100-some-odd passengers on it and shouldn't that person be treated as abenemy combatant and -- as an enemy combatant and subject to the rules of the military people who are under the supervision of the military? so, isn't that kind of really what we are debating here? and the ac lu and the left, in all due respect, feel that that person should be, first of all, that al qaeda should be treated under our criminal system rather than treated as an enemy combatant who wants to do great harm to the united states of america. is that an accurate description of what we're talking about here? mr. graham: yes, sir, with one

caveat. there's a line of thinking that the -- that we're, we should be using federal courts exclusively, that military commissions are not appropriate in any circumstance, and that we should be using the law enforcement model once we deal with an al qaeda operative, particularly here in the united states. what we're saying in this legislation is that the battlefield includes our own homeland. but there is also -- and so that argument being made by the aclu, i think will beat that because most americans feel like we're not dealing with somebody who robs a liquor store. these people present a military threat and we should be able to gather intelligence in a lawful way. the administration's concern was are we overstepping executive power. i have, quite frankly, said i'm concerned about that. peter was concerned about. dave was concerned about that. i've been really kerpd about

that because -- concerned about that because i don't believe you can have 535 attorneys general or commanders in chief. what we did to accommodate that concern is what you said, senator mccain. we started out with a military custody requirement that can be waived and the procedures to be waived are in the hands of the executive branch. and as senator levin has indicated, this, to me, is very flexible and is so flexible that i feel very good about it. if it were a mandate to put everybody in military custody and try them in military commissions, even though i think that's the best thing to do, i would object. because the flexibility to make those decisions needs to be had in the executive branch. there may be a time when the article 3 court is better than a military commission court for an al qaeda operative. i don't want the do think say article 3 courts could never be

used. i don't want the do think say military commissions are bad. we have now got a good military commission system. we've got a process where the homeland is part of the battlefield. the individual being captured on our homeland can be held to gather intelligence under military law. and if somebody smarter than us believes that's not the right model, they can change the model. and that's the best we can do. and that's the best i'm going to do because i'm very worried that in the future we're going to lock ourselves down into policies that would have an absurd outcome, that if you made it to america, we can't gather intelligence, which would be crazy. no good reason for that. a senator: if the senator would yield? mr. graham: yes. mr. levin: in addition to -- in addition to providing in this bill that the determination as to whether or not somebody is al

qaeda is to be made through procedures which the president will adopt, number one, which is flexibility. number two, that that determination shall not interfere with any interrogation which is undertaken by civilian or any other authorities. is that not correct? protect interrogation. finally, on top of that, there's a waiver that is provided. so we've got all of that protection. so the statements that are made on this floor and in some of the press that somehow or other we are pushing everybody who is determined to be al qaeda into the military detention system is not accurate because we have those three protections: the procedures for that decision as to whether someone is al qaeda are procedures which the president is going to adopt. secondly, we only apply this to al qaeda, not to everybody who

might be -- mr. graham: right. mr. levin: third, we have a waiver for triple protection to protect what you rightly are sensitive to. and that is that there be flexibility in the executive branch. all of us may say we want it done one way or another. we may presume that it be done one way or another. we may wish that it be done one way, civilian or military. some of us have different opinions of that, but that's not the point. that's not the issue. the issue is what does this bill provide. and this bill provides a reasonable amount of flexibility and does not tell the president, you must turn somebody who is suspected of being al qaeda over to the civilians at any point or to the military at any point. mr. graham: if i may just add another layer of process here, some people on our side say that's way too much. you should just throw these people he in military -- senator lieberman, my dear friend, if you left it up to joe, everybody caught is an al qaeda operative, would be thrown in military custody. they would be held as long as we

need to hold them and tried by military commissions. at the end of the day, that's sort of where i come out. but i am not going to create a 535 commander in chief body here, because there are times when that may not work. what we've done is what you said. if you capture someone at home, it's just like you've described. and the reason, to my colleagues on this side, i wanted to build into things you just described, is because i'm very worried about crossing over out of our lane into the executive lane. now -- here's what happens to that al qaeda operative. not only does the executive branch have the flexibility to go one way versus the other starting with the idea of military custody. but all the things you said are true. but what do they have beyond that? if someone is being held as an enemy combatant, there are regulations requiring that they be presented to combat status review tribunal, now with a

military judge access to counsel, i can't remember the time period. that is done. then they have the right to take that decision and appeal it to a habeas federal district court judge. so no one in america is going to be held as an enemy combatant that doesn't get their day in federal court. but their day in federal court is a habeas proceeding, not a criminal trial. and if the judge agrees with the united states that you are in fact an enemy combatant, then you can be held indefinitely, but we require an annual review. if the judge says let you go, they've got to let you go. this is the best we can do. this is a hybrid system. no other war do you have access to a federal court. but as i said before, this is a war without end. and if we don't watch it and enemy combatant determination can be a de facto life sentence because there will never be an toned these hostilities -- be an

toned these hostilities. i recognize that. working with you and peter and others, we've come up with a process that allows the federal court to review the military decision. we'll have an annual review process if the judge agrees with the military. that, to me, is due process that makes sense and a war without an end. something you wouldn't do in world war ii but something we need to do here. so to the critics, please read the damned bill. i apologize for saying it twhaeu but you're talk -- saying it that way but you're talking about things that don't exist. no one is being held indefinitely without due process. this is due process beyond what exists today. only if we can pass this bill. and i don't mind being considered by some of my colleagues as maybe too friendly to due process. the reason i am so passionate about this, what we do sets a

precedent for the world and the future. when -- if one of our guys are captured, i can look the other people in the eye, al qaeda could care less but other people might, and say we're a rule of law nation. i believe in the rule of law, but there is a difference between the rule of law of fighting a crime and fighting a war, and i am proud of the military legal system. i do believe the military justice system has a role to play in this war. military commissions, the judges are the same judges who administer justice to our own troops, the same prosecutors, the same defense attorneys, the same jurors. so i am proud of the military legal system, i'm proud of the federal court system. i want to use both. but senator levin, we have been working on this for years. this is the best work product i

have seen, and i hope my colleagues would understand that we thought long and hard about this, and if we don't get a process in place that has some definition, some certainty, some guidance, that we're letting our nation down. this is a good bill. i hope people will vote for it. mr. levin: if this bill contained the provisions as described by our friend from california, i would vote against our bill. mr. graham: so would i, at my own detriment. i don't want to mandate the executive branch to do everything like lindsey graham would like. i want to start with a theory that makes sense and provide flexibility to change it if that makes sense. i don't want anybody to be in jail because somebody in the military said you're an enemy combatant. i want a federal judge involved in a sensible way. i want due process to make sure we can tell the world you're not sitting in a jail because somebody said you were guilty of

something. had you a chance to challenge that. but to the critics, i will not stand for the idea that we can't defend ourselves under the law of war because i believe we're at war, and in war, you have the right to hold enemy prisoners. you don't have to let them go to kill you again. and in war, you can hold people and gather intelligence in a humane way. that's what we're able to do under this bill -- fight a war within our values. and i will yield. the presiding officer: the senator from kentucky. the senator from arizona. mr. mccain: i see the senator from illinois on the floor who i know is very heavily involved in this issue. we have been now debating this amendment for i think about three hours at least, and a number of speakers from both sides. i would hope that perhaps we could go ahead and vote on this

amendment. i was informed and the chairman was informed by senator reid that there is a limited amount of time that can be spent on this bill. and i realize how important it is to him, but we have no further speakers right now. i know you want to speak on it, but would it be agreeable that after we have exhausted the number of speakers that we could go ahead and vote on the amendment? well, you know, it's really too bad because -- the presiding officer: the senator from arizona. mr. mccain: let me just say to the senator from illinois, this is an important issue, and i understand how important it is to him, but this legislation, sir, has a lot to do with defending this country, and for you to hold up the entire bill because you don't think it's been discussed enough i think is a disservice to the men and women who are in the military that this bill addresses their concerns, their needs and the needs of the nation's security.

so i -- we took up this amendment in the belief that we were going to go ahead and debate it and vote on it, and so the senator from illinois, if we are forced to -- if we are forced to not be able to complete work on this legislation, i think he bears a pretty heavy burden on this because we have a lot of other provisions in this bill that are also vitally important to the security of this nation. we have had spirited debate. i have been involved in this -- in this legislation of the national defense authorization bill for a quarter of a century, and we have moved forward and we have had debate and we have had votes, and i would hope that we could do that so that we can move forward to other issues. the senator from kentucky is on the floor with an amendment that he would like to have debated and voted, and we have like 100 more. so i hope that the senator from illinois, after we have had sufficient debate, that we could go ahead and vote on the

amendment. the presiding officer: the senator from michigan -- or from illinois. mr. durbin: mr. president, i don't know if i am -- i now have the floor? the presiding officer: yes. mr. durbin: i will proceed. first, let me thank my friend from arizona. we have served together in the house and the senate. i respect him very much. i certainly have high respect as well for the senator from michigan. but i will tell you this. if the argument is if we don't vote on this amendment tonight, the security of the united states is in peril is a little hard to make because we're not going to finish this bill tonight, number one, and number two, it's pretty clear the administration opposes this particular amendment -- at least i have been told they do. and number three, if we're talking about something as fundamental as changing some laws in this country relative to the united states constitution, i have to agree with senator leahy, chairman of the judiciary committee, and senator feinstein, chairman of the intelligence committee, this great body should take the time, debate the issue and vote on it in a timely fashion. i'm not here to filibuster this matter, but i am here to discuss

it, and i would like to say to those who have come to the floor and say it's imperative that we move now to change the way we deal with terrorist detainees in the united states, i'd like to make a record for them, for the record. for the last ten years, we have dealt with alleged terrorists in the united states, and during that ten-year period of time, 300 alleged terrorists have been successfully prosecuted in the criminal courts of america and incarcerated safely in american prisons, 300, and during that time ten-year period of time, six -- count them -- six have been subjected to prosecution through military tribunals. so the score is 300-6 for those who want to change the system, 300 saying we have a pretty darned good federal bureau of investigation, we have excellent lawyers in the department of justice and the american court

system has responded well to keep us safe. so the notion that this has to be changed tonight to keep america safe, i don't know that there is any evidence to support that. and i listened to some of the arguments on the floor here and i want to call to the attention of my colleagues, this is not an insignificant change in the law. if section 1031 is enacted into law, for the first time we will be saying in the law that you can detain indefinitely an alleged terrorist who is an american citizen within the united states of america. mr. graham: would the senator yield? mr. durbin: i will yield after i complete my point. i believe that most of us feel that if someone is charged with terrorism, an american citizen, that normally they would be subjected to constitutional protections and rights as american citizens, and for those who believe in military tribunals -- and i know the

senator from south carolina does because he has been engaged in them personally and feels that they are an honorable and effective way of prosecuting individuals, he knows as i do that we have gone through in the last ten years a series of supreme court cases that have questioned whether or not we are handling military tribunals in the right fashion. the law is not settled when it comes to military tribunals, but the law is clearly settled when it comes to article 3 criminal courts, to the point that 300 terrorists -- alleged terrorists have been successfully prosecuted and convicted. so i think this is worthy of debate. it is a valid issue. the security of america will always be a valid issue on the floor of the senate, but let us do it in a thoughtful way. this matter was not referred to the senate judiciary committee, it was not referred to the senate intelligence committee. it was decided by the armed services committee, and as good as they are, as great as the people are who serve on that

committee, there are others who should have a voice in the process. i yield to the senator from south carolina if he has a question would -- which he would like to direct through the chair. the presiding officer: the senator from south carolina. mr. graham: i would like to respond. number one, it is good to debate. it is good to have discussions about important matters. the senator from illinois is right, there is nothing more important than defending the homeland. now, let me just tell you the law as i understand it. the hamadi case was an american citizen -- mr. reid: mr. president, would my dear friend from south carolina allow a being in -- alw a unanimous consent request? mr. graham: absolutely. mr. reid: i would ask my friend's statement not appear interrupted in the record. the presiding officer: without objection. mr. reid: i ask unanimous consent the senate proceed to consideration of the conference report to accompany h.r. 2112, an act making consolidated appropriations for the departments of agriculture, commerce, justice, transportation and housing and related programs. there be up to 90 minutes of

debate equally divided between the two leaders or their designees, upon use or yielding back of their time, the senate proceed to vote on adoption of the conference report with 60-vote affirmative threshold. before there is response to my request, i would tell everyone we're going to be in session tomorrow. i have spoken to the two managers of the bill. we will likely not have votes tomorrow. in fact, i don't think we will have votes tomorrow, but i would say to everyone if you have amendments to offer, you should offer them because the time for the defense authorization bill is winding down. people can't sit around and say we'll do something next week because next week may be a lot shorter than people think. a senator: will the leader yield for a question? mr. reid: i would like to change that 90 minutes to 120 minutes. the presiding officer: without objection. is there objection? mr. paul: mr. president, i would object, reserving the right to object. the presiding officer: the senator from kentucky. a senator: would the senator yield for a question? i think i may be able to satisfy senator paul. the presiding officer: the

senator from michigan. mr. levin: would the leader make that unanimous consent effective after there is five more minutes of discussion -- provided i will make it after a half-hour more discussion. mr. levin: and after senator paul calls up an amendment and after senator merkley just calls up an amendment and then lays it aside? the presiding officer: is there objection? as modified. mr. levin: would that be acceptable? mr. reid: i would accept the modification with pleasure. the presiding officer: without objection. it is so moved. mr. reid: finally, we get somebody to start offering some amendments. mr. levin: if i could just comment very quickly to my friend from illinois -- mr. reid: did we get the consent? mr. levin: i think he ordered that. mr. reid: the senator from south carolina has the floor. mr. graham: i want to make this go further, faster. mr. levin: is the senator aware -- the presiding officer: the

majority leader. mr. reid: i yielded -- my friend from south carolina yielded to me for a unanimous consent request. the presiding officer: the senator from south carolina has the floor. mr. graham: if i may, if i may respond to my friend from illinois. hamdi was an american citizen captured in afghanistan. he had joined al qaeda, the taliban i guess in that case. we captured him when we went into afghanistan. we brought him back here and we held him as an enemy combatant for intelligence gathering purposes. his case went to the supreme court, the supreme court said you could hold an american citizen as an unlawful enemy combatant, you have just got to create procedures, a due process requirement. eventually, the court said that every unlawful enemy combatant has a habeas right.

the law of the land is clear that an american citizen helping the enemy overseas can be held indefinitely but they have the right to petition a judge as to whether or not the initial determination was correct. if the habeas judge believes there is not enough evidence to hold you as an enemy combatant, then they have to release you, but if the judge agrees with the government that there is enough evidence to hold you as an enemy combatant, you can be held indefinitely. this president is holding 48 people at guantanamo bay who have never seen a criminal courtroom because of the theory of law of war. the presiding officer: the senator from illinois -- mr. durbin: the senator from south carolina, i yielded for a question. can you bring it to a question mark? let me just say to my colleague -- and i respect you and count you as a friend -- the difference, the critical

difference here, to the senator from michigan, the senator from south carolina, is this -- the hamdi case involved an american citizen, part of the taliban, arrested in afghanistan, okay? you made that point when you said the word overseas. unfortunately, section 1031 does not create that distinction. an american citizen arrested in the united states, charged with terrorism, without any connection to overseas conduct -- having been arrested overseas, i should say, is still going to be subject to indefinite detention. the only thing i would add is this -- i think this is a good exchange, and i think we need more, and the notion that we have to hurry up and get this done in the next five minutes is not, i don't think, an appropriate way to deal with this. i know senator paul and senator merkley are waiting, and i would be prepared to yield the floor at this point. if this matter comes up