>> yes. to what it relates. >> backing your statement now, mr. shear, can you express a general opinion about top-flight comments under the rubric which commenced three south four and commercial oppression? in their own words, what are those professions operate in the moment? cannot i believe it is a business model that has become almost dependent and infatuated with sensation is sent to stories to the point where the facility and this is just my opinion as they say, that phone hacking or unlawful surveillance

provided allowed those that were utilizing a and reviewing information to not only build their stories, but to pack them out with detail. i miss co-infected with the financial benefits in a newspaper could have firm providing a dieted easily digested or sensationalist code on a regular basis. and therefore it's been a progression of sort of fairly supportive i suppose privity impeding but interesting to a section of the public intrusion into the private lives of the rich and famous, powerful or others that has kind of created a sort of self generating

process, where people want to see or hear the next event. so that's what i've seen. that's how i seen it develop. it certainly was not quite as prevalent in the same sort of guys in the mid-90s. i think it became more organized and more orchestrated as we sort of turn into the early props of 2000. certainly the news of the world was out in front as the most effective story gatherer and certainly quite a bit of daylight appeared between news of the world and the other papers with whom they computed. i think that the types of surveillance that were being undertaken are likely to have been isolated to one newspaper. because of the movement of journalists between the different newspapers. i mean, there aren't that many newspapers as employers out

there who would be available for the journalist to work for. and i was certainly aware of significant movement in the early part of the 2000 -- in 2003 to 2005 for journalists from some newspaper group specifically to news of the world. >> what is being acquired to the seminar that also offers evidence which is coming from the press is that the moments you are giving is entirely incorrect as where it might have been true to some extent in the 1980s and early 1990s. the affected the bbc is to improve and for your giving us a stereotypical view it's completely wrong. you have to comment on not? >> i don't accept that at all actually. i think the press are extremely

adept at identifying and calculating opportunities and then exploiting them, whether it be from journalism and persuasion of young girls to sell their stories on a sort of regular basis all the way through to identifying which stories to alert the target that relates to private information prepublication in which stories to leave to the potential risk of the post-publication damages. in that sense, the pcc is certainly no match for that kind of organized and focused financial calculation. and i think the pcc is a body although their areas and i'll come back to them rethink their effect is. generally speaking the pcc as i perceive them come to their role one of mediator. you're not a regulator. they have no power to investigate and i think that without being empowered and having to tease to appropriately

investigate and regulate the members of the media that they are in an effective body. it doesn't just come out to investigation regulation. there's also an issue year of training. and where one has a sort of systematic or systemic glass or dilution of ethics to the extent that we've seen a news of the world. and as i've that i believe that's really isolated to just the paper. i think one has to question the extent to which the journalists have been trained about the requirements upon them and obligations upon them and their employers to act ethically. and i think that element should also be introduced into anybody, anybody that replaces the pcc is a requirement for appropriate trading and ongoing trading at the journalists read place and

enhance the ethical conduct. so far is one area where he do think the pcc has been good if they have provided an anti-harassment phone line and i think that is quite ineffective facility. i myself was actually on occasion recommended that clients concerned about door stepping utilize that helpline. i know they've done a good job with that, but i'm afraid so far as broad regulation or investigation is concerned, the pcc today and yesterday certainly no match for the larger an effective media organizations to whom they are meant to mediator. >> in terms of pictures and stories you mention in paragraph 8 of your statement coming to a personal knowledge of the amount of sums of money

passed hands between newspapers and women to purchase the stories? >> i have had accounts from several young women concerned. i think there was a tariff that almost evolved over time. some of it on a competitive basis between the different newspapers because obviously the story was particularly high-profile, the target person is of particular interest for the young lady had an effective agents and some attempt at a very good agents who would increase the temperature and amount of an option for their kiss and tell story. that terrifies they say here probably went from somewhere about 10,000 for the most innocuous of two half-million. and the operating and the number i give at the upper end of that i have heard accounts of people

who have been involved in the most high-profile cases, for sample, rebecca who has been paid very large sums for their stories. but the young ladies concerned became aware there is a tariff as a mention in a statement, there's certainly a group of repeat performers that i can put it that way who became fairly regular kiss and tell girls who obviously took advantage of that. and i do believe -- will i know i'm certainly more than one occasion clients of mine have been faced not only with the prospect of being alert that the newspapers had a kiss and tell goal, but it was also that that young lady would issue and pay more money to not tell the story and that in itself uncertainly more than one occasion appeared to be an orchestrated attempt to persuade her clients to actually

pay off the young ladies, which in itself could become an enhanced story almost in a form of orchestrated blackmail. so the supplement to the standard kiss and tell story occurred around 2006, 2007, where there was an appetite to kind of move it away from the standard to something more interesting. even the regions of our regular sunday daily tabloid papers needed some variety and i think that's partially what occurred. >> you guys have stayed in power about 12. interview the tabloids consciously calculate the financial risk of publishing the story and i suppose i would include in a kiss and story it would cost us ask to buy the

story and that will yield us additional circulation of y and therefore the certified financial benefit. do you have any evidence of that speculation? >> well, i think it's about the progression of behavior. i had very good working relationships with most of the national newspapers. i was probably instill them one of their principal adversaries. and you know, it's not just a question of whether or not you're an adversary on a weekly or daily basis that you have to be adversary only all the time. we did have good relationships. and during the early part of this century, 2,022,008 in 2009, i suppose even now occasionally. but the papers would occasionally alert us to a story they were going to publish and that was certainly more

prevalent the further one goes back and it is currently. so we would be contacted perhaps lawmakers there are friday in relation to a story being developed for publication on a sunday. it ordinarily involved material that was potentially i'm looking to balance out the risk by putting the story to the target lawyers. the concern material that was the private nature and they're trying to assess what if any resistance they would receive. in order to enhance and regularize their approach to me, i would send out a list of all my clients with a notice basically saying that if you have any material which you intend to publish, please put it to us first because it gives us the right of response.

it's certainly up until the last few years, the journalists would put that material to us. but over time what is actually happened is two things. firstly, the amount of damages that were awarded in relation to defamation, to libel generally has been reduced. when one goes back in time to the elton john cases, they were the last of the very high damages of wars. so it's been on a sliding scale coming downwards and maximum amounts they were damaged in relation to breach of privacy have been relatively modest. if the newspaper or media organization can calculate the financial consequences post-publication, they can also calculate whether or not the benefits of publishing the story without approaching the target or their lawyers first outweigh

the risk or financial consequences of the words against them and even post-publication. and what i i have seen a cyrillic didn't spin the media generally to put stories prepublication fenced in backing away the fallout if you like after publication. out of two aspects. firstly, some people view it as what is the stable doors open and the private information, what is the point in litigating of the event? it only reinforces and reminds the reader and those who didn't read of the information about the private information. so there's an actual deterrents post-publication to commence proceedings. and secondly, so far as bathymetry material is concerned, i suppose there isn't usually her outcome for the

defendants in any action post-publication and that is to make an offer in order to satisfy the client. so certainly so far as private information is concerned, i detect it encina roulette tents over the last few years by the media to actually put stories in prepublication. >> that's helpful, mr. shear. the distinction would read stories which are private and true with the privacy issue and these are pretty ctu when it's untrue. >> yes, a technical distinction between the two. david sharp, when of instructive and debated were debated over the last 10 years as to the effect or the potential to bring

privacy actions where there is the notion of forced privacy, where in order to contest the information, the private information, you have to reveal some private information in there for one does a contest in, when it's opening one's private life to inspection by others instances where you would not ordinarily wish to do so. and you are right that that overlaps with the potential to defamation proceedings as well because obvious that the consequent of false privacy or false information is defamation of the publication. >> can i do with your privacy points and shooting at the bottle issue and not walk then i think with the supreme education because this target is given the chance to form an injunction match which is in the bottle,

from their own personal experience, are you able to say how often this opportunity is now being given to clients of yours? >> and increasingly rarely. i think a disproportionate to the the size and nature and possible impact of the story. the bigger the story, the less likely the opportunities given. i've are probably as many if not more than any other -- ever and more prepublication and junction and possibly any other lawyer in the area growth started to commence them in our newspapers back down. i would say at one point we were lucky not concentration with a large newspaper groups almost every weekend.

and it is more weekends than during the week because the sunday tabloids have more than an opportunity to build a story and ordinarily larger parts to do so. over the last few years, that has receded canonically and it's not just a coincidence that this inquiry of the provenance of the phone hacking scenario. it's more about a change in behavior and the reluctance to be if you like knocked off the story by the media generally. >> it might also depend on how judges are responding to these applications and of course we don't get much in the sense of that because of the nature of the applications on which is their quantitative view. is there a position that high court judge will wish to see

demonstrated a clear public interest in the breach privacy? >> certainly. let me be absolutely clear. speaking of obtaining a anonymity order is no easy thing. they are extremely hard five. those on the opposite side were adversaries of the media do not take that lightly on the judges who share the application won't be assured that the individual's rights have been fully engaged. now that is the most obvious point, whether or not there is an inherent right to privacy in the information which the section the media is published. in the second point is whether or not about the 19 relation to a public interest has been outweighed by the preface for

freedom of expression and appropriate freedom of expression. don't get me wrong. i echo the last witness sentiment that in a democracy of the type we were desired to live in, we need a strong and affect kids and free press. and i believe that balancing act in relation to public interest is an absolutely vital part of the process and it is, as they say, hard-fought, but almost invariably insert way with respect to the sensationalist and stories which we've spoken about. it's very, very hard if not occasionally impossible to detect our public interest rather than sort of saying interest by the public and being and in searching themselves in the private lives of celebrities so i am afraid that is the sort

of background as to how those injunctions occur. if one can demonstrate those two ingredients that one has a fighting chance of persuading a high court judge doesn't anonymity order is appropriate. >> thank you. in paragraph 14 of her statement coming at you with a specific matter what your race in 2003 >> yes. [inaudible] >> is there anything you wish to add to that? highlight mr. shear? >> i see it as an example of how we newspaper might seek to bring into the public domain information about which of three

brought into the public terrain and driven further if the risk of defamation action or risk a privacy actions and in that particular instance the individual involved but they use the expression vilified it has he was unwilling to participate or intrusion into his private life. therefore a high-priced oil and at the same can want to retain a private life in the newspapers didn't appreciate that he would contest their intrusion. in this particular instance or circumstance, i can give you peace because there's quite a lot in the public domain already. there were a group who were staying at pruden house hotel.

they were the subject of a complaint by a young lady that she had been assaulted. i acted for the $4 concern. unfortunately for one, you thought sustained in the hotel that was probably is more interested at a higher profile than the other foot dollars and was the vilified footballer who i mentioned a few moments ago. and i think there is a clear focus by the newspapers to identify him as being the likely potential accused if you'd like. entering his name in the public domain right inference of suggestion by the policing of stories and pictures in close

proximity as they were published. and this is a very high profile event was front-page news for several weeks. there didn't seem to be much interest in identifying whether or not he was appropriate for him to be -- his name to be brought up in this fashion and we let it be known that he was not actually present at an event about which he could be of any concern to him or interested them. but they went ahead and inferred his involvement and we subsequently sued and we subsequently sued as a result. >> so in the end it was the law of defamation which designed the resolution.

>> yes, i think that there was a point where so many of them so much in the way of suggestion and imprint that his name was being bantered about as the likely instigator or perpetrator and it was being treated on the internet. and so he felt he had to come out and actually clear his name momentarily. and you know, not only is an embarrassing in that circumstance, people actually remember the wrong part of the story as well as the right part of the story for this activity and for his willingness to come on and say firstly, i was not involved and they try to involve me. and secondly also for his -- i suppose his willingness to pursue the media after the event. he for many years after the case

was resolved became the subject of a moral intention, almost on a vindictive basis by many sections of the newspapers that were -- that were the subject of our proceedings. >> when you refer to the issue of what you call revenge, do you mention any specific catch, which for obvious reasons you can't tell told to detail of how might you do refer to a three-year campaign by the press which follows the liable settlement. i know it's going to be difficult to give examples without getting perhaps the identity of your plan. is there anything more you can say about that i'm sort of an anonymous basis?

>> i think that this particular instance was particularly disgraceful actually. i think that the notion that they had any belief in the integrity of the story was completely set aside by what we learned later on. this appeared to be an opportunity by newspapers generally to buy a video, which contains supposedly explicit material at the newspaper decided not to buy the video but publish an unsubstantiated story, which did not seek to identify, but only creative speculation about our client. the way in which we did it was intended to either identify him for the benefit of those who are able to reconstruct an image by cross-referencing it was sort of a silhouette by cross-referencing against

photographs that were published in other media and therefore if you'd like to bring in his name. what they didn't appreciate is the identification is actionable. we contested it and the consequences of that is not only was it a general target of interest because the visibility of a professional sportsman, but also in other areas, but there is definitely an element of a revenge fueled fervor because there seem to be a decider to dish out retribution and they were determined to prove something that was damaging to his reputation or to his private life as part of the quick provost of having the temerity to take on national media in a

certain sense. and you know, if any person is put under a microscope, an intensive microscope and if there are large amounts being bandied about, for the provision of information, the old start check the journal of them together with a few like the focus and intensity of turkey and a person together with what appears to be a systemic approach to surveillance of phone hacking and other facilities provide some result on those results were certainly exploited beyond what was i feel appropriate or even vaguely in any form of public interest scenario. excessive. >> to have assisted the inquirer with analysis effective of the

business model of newspapers in which they take by the calculation conscious or otherwise, but in the circulation figures will be increased in that wall uncover any damages for defamation and privacy. may i ask you there about the business model of firms such as yours because this is the point at which i'm sure the press would wish me to make a view. as of right and many of these cases he worked on a conditional fee arrangements with your plans? >> on some, yes i do. i've only done so for the last four or five years. i did it four or started to do a virtue are three reasons and it's not only in the area of media or privacy related or defamation related work. i do it in other areas. it is to come if you like, balance out the power quotient

between the parties who are adversaries. it is also to use was the potential of risk and also if you like to create a dialogue between solicitors acting for my adversary and that adversary. ..

and continuing the defense because if they lose they're going to, the costs will increase. >> but the point of view of the opposing party, imagine this scenario. you told us that damages in privacy cases are not particularly large. the largest which has been awarded is 60,000 pounds, correct? imagine a case where the, the opponent, the claimant is on 100% cfa. a commercial firm such as yours obviously employ appropriate counsel to represent the client. the legal costs tend to get out of hand to use the vernacular very soon. therefore the newspaper calculates even with potentially defensible cases that they are, they are almost compelled to settle those rather than fight them because the risks are now disproportionately high. is that right? >> host: no, i don't think

so for a moment. let's look at a case, for example, you mentioned the highest case is 60,000 pounds. that is no more than sort of a very gentle parking fine in proportion to the turnover and financial returns on publishing very high-profile story. if some puts it into some form of a context the highest damages awarded at 60,000 does not really compare to the premium being paid to the kiss-and-tell girls at the other end of the story provisioned, if you like equation. if the newspapers feel as they should do on, quite a high proforges of the cases they're at risk of losing on a case, they clearly have the opportunity to settle that case by making a sensible and appropriate and proportionate offer in settlement. now if they do that early then the consequences of the

cfa do not actually bite upon the adverse costs and escalation ofed adverse cost. let's also be clear about that. the maximum consequences to a newspaper double. so it is 100% up lift if all of those on the other side including solicitors and barristers are all on 100% up-lift and the case is to warrant 100% up-lift. i done cases cfa-based and take them to assessment ordinarily go to assessment and as most of the cfa, the courts only award something in the region of 65 to 75% of the costs on assessment to the winning party and therefore there is a heavy dilution to the, if you like, 100% up-lift in any event. really the risk to the newspapers of a cfa biting

are only restricted to those cases where they actually lose them. i do not believe there is a real deterrent factor there where they have a significant prospect of losing. really any litigant where they have a case where they believe they have a less than 50% chance of winning that case should really be settling out in any event. >> mr. schear, approximately how many cases over the last few years in this area have you done on a >> excluding phone-hacking cases we're doing at the moment, no more than a handful, six or seven. >> have you lost any of them? >> no. >> give us some idea of the -- >> can i just interject? >> yeah. >> you will appreciate when one assesses whether a cfa is appropriate to enter into

as a solicitor we weigh out the merits of the case very carefully because we're taking significant risk in investing our time. >> of course. >> into that case. so i wouldn't take a case which i didn't believe was likely to have good or very good prospects of success. and so therefore one would only choose the an appropriate case to enter into a cfa on. >> that's very sensible. until there is no doubt about it the risk of assessment is carried out by the solicitor and his appropriate counsel before any significant work is done but enough work for to you evaluate whether it's a good, bad or indifferent case, that's right, isn't it? yes. >> and your policy, probably quite prudently, you only take cases which have got a better than 50% chance, is that right? >> correct. >> from the newspapers

perspective, you imagine the uncertainties of litigation, we can all see cases which are stone cold winners, stone cold losers but many fall in the middle, 40 to 60% chance of success bracket. the existence of a cfa agreement will cause a prudent newspaper to be more cautious in relation to litigation and at least possibly to adopt a more defensive approach and settle it earlier, wouldn't you agree with that? not necessarily. i believe that there has over the last few years i suppose since the evolution and development of privacy law in this country and the passing of the human rights act been a slightly strange attitude, and view about what is and what is not in the public interest and this sort of devotion to promoting a right to publish

because of role models and hypocrisy became sort of a ready mantra and i think it has pervaded through the decision-making process. so even where there is a, a clear case where private information has been utilized and disseminated and actually it looks like, it looks pretty clear that there was no proper public interest ground upon which the media went on to publish it because they haven't been able to identify evidence or submit that evidence, they still gone ahead and contested the cases. i think it is partially because they see it as, not just one battle but an ongoing war. they feel the necessity to maintain arms at every single battle even though they may look like cases that shouldn't be con testsed.

i think that is pervaded through in the way which they have then, they feel like published either the story or recrimination in relation to the consequences of their publication whether it be defamation findings against them or privacy findings against them by seeking to vilify the high court judges who have, who have heard those cases or the participants in the actions in further, in further targeting them later on. so it kind of blends through. i don't think there is necessarily a totally rational view with which some of these cases in which the media have continued to contest them it's maintained. >> correct to say that in relation to cfas two things? first of all they're underclose scrutiny following lord jackson's report and secondly as i mentioned this time last

week there is jurisprudence in the court of human rights in vienna on specifically that case. also the campbell case. there was breach of art tell 10 of convention in relation to cfas. these are all matters which will need to be considered. may i touch on one aspect of the public interest and suggest that in the cases which fall in the middle of the spectrum there are quite difficult judgmental issues. i mean we can quite see cases on one end of the spectrum where, i'm giving you a hypothetical case, a politician, and this has been mentioned, take as particular stance in relation to family life. that stance is made explicit. then unfortunately the politician lapses from that in his or her private life. there may be not much dispute about that sort of case but the identification of a public interest in

exposing the mismatched put it in those terms may be quite clear. >> that is clear. >> then on the other end maybe we'll be v.ing evidence bearing on this a bit later in the week we have successful people who have bent over backward to protect their privacy, in particularly the privacy of their children and where it is very difficult to see a proper public into delving at all into their private life. those quite straightforward cases. what about cases in the middle, perhaps some of the role model cases aren't those cases so inevitably bound up with public expectations about how people should behave, maybe, footballers in a certain position in a national team or whatever, just to give you one possible example, that it is very difficult to be dogmatic as to where the public interest lies? in the end it is a matter of opinion, isn't it?

>> i agree to a degree. >> okay. >> i think that there are distinctions between the different classes or groups of those to whom you refer. like you, if i, if one of our elected officials was transgressing in a way that diminished the standing which we should hold them in, then i would want to know that. if there was some event that was occurring that related to the well-being of society, i would want to know that and i'm sure everyone else would want to know about and therefore their rights to privacy in those circumstances are clearly diminished but you can normally separate what is private information from what is information that should be disseminated in the public interest. when you speak of role models or when you speak of those in who play football, there are different categories there as well. there are those who perhaps

make their living from promoting their on-screen persona and therefore have to support that persona with marketing activities such as actors or actresses who appear in large motion pictures. they have to go through a process but do we actually know the person? no, we know their on-screen persona. we know the persona which evolved through our perception of what they're about. i believe that they are still entitled to, to a private life. and the same goes for professional footballers. it is hard to understand how the suggestion that all professional footballers or even those that play for the national team should be automatically considered to be a role model to all who read the newspapers or all who watch them play. the main reason why they have achieved that success is because of their own-pitch or on-field ability and

excellence largely instrument -- as a result of deciding very early age they wanted to be a professional sportsman. they haven't decided what they really want to be a professional sportsmen who also appears on the newspapers or the media because the vast majority of our professional footballers earn very, very little money from off-pitch activities. only absolute handful who have earned, any significant sums and only one or two of them who could fall into the category of they're being crossover between profession sports and general media profile. so i don't accept it so far as the professional footballers are concerned, unless one has a case, and there are cases that do stand out as obvious cases where there may be public interest reasons why that information should be disseminated but the overwhelming majority are private. there is one further point i would like to put on that.

this mantra of, journalists and lawyers who worked for "the news of the world" and other newspapers constantly saying, oh, your clients are a role model. they're a role model. look they acted as a hypocrite. to hear from that the senior journalists who i knew extremely well at "news of the world" and editors and editors of the various whether it would be news and too features and sports, over and over again how my clients are being hypocrites because they had, i don't know, an additional relationship or whatever. so then learn of the activities of "the news of the world" was they had supposedly been seeking to identify the hypocrisy of others and yet they themselves throughout this period were acting unlawfully is ultimate in hypocrisy in my few. >> i sea the weakness of the tit-for-tat argument but might be said the present

england manager supported view of journalists in relation to the english captain couple years ago. took him six minutes to sack the captain for failing to be the role model he was supposed to be so the journalistic view is not necessarily out on a him, is it? >> i'm never quite sure the extent to which the decision-making of the england manager is detached from the marketing or pr people who are, who operate it but you're absolutely right. there may be positions within public life such as the captain of a national team where standards of their private life are expected by those who placed them into those positions to be higher than others but fine, what are we talking about there? we're talking about a relatively few people. most people can actually separate their public engagements, actions, and, if you like, activities from

those which are private. i mean i have no, other than my activities as being a lawyer acting for people perhaps in the media or for large companies, i have no public persona. i can separate out my private live from what i do and act on behalf of clients in relation to and most people in public life have been adept at actually separating out those circumstances especially when it comes to their family circumstances and children and elderly parents, et cetera. >> well, mr. shear, thank you for bearing with me. i've given you a bit of a platform. you have taken up the opportunity very eloquently if i may say so. so it is absolutely clear. others who will be in a position to express a contra view will be given exactly the same courtesy but i'm grateful for you coming and i have no further questions for you. >> i've got three topics.

which move it back a little bit. each arise from something you said. you spoke about the concern of your clients following 2004s -- 2004 about the question of interception and then finding about the mulcaire notebook and the intrusiveness that you were experiencing through your clients. what i'd like to know is, whether that has stayed the same, got better, or worse in the years since 2006, 2007, 2008, as we've learned more and more about what's going on? in other words, what i'm trying to pick up on is the question, we've understood it say the press. we've got the picture and it is now very different.

>> you give a number of time periods there. >> yes. you can talk all the way through them. >> sure. i actually think the biggest separator has occurred perhaps in the period from the summer of this year onwards and then before then from about mid-part of 2010. i think that there has, i'm deal with a time period where there has been the greatest sensitivity and probably the fewest stories and the least intrusion has occurred while i suppose the microscope of this inquiry and prospect of phone-hacking claims are most apparent and clear. when one goes backwards in time and i recall that the periods from about 2003, 2004, that goes back to several cases where i was acting to 2005 in relation to some high-profile matters i was involved in, i think that there was a, an

atmosphere not just of complacency but also that, they were almost untouchable and therefore their activities became incredibly up truce sieve and there was a fever pitch of trying to produce more and more detailed stories during that period with a far lower recognition for either consequences or personal private rights. so i think it accelerated and increased during the period from about 2003 to about 2008 and 2009 and has receded. whether it's temporary because of the focus of this inquiry only time will tell. so there is something potentially positive come out of it any way. >> i'm sure, if i can morph that into a further question.

i think, if all that comes out of this is a more effective way to facilitate a body that investigates and regulates and trains our media so that it is an effective, if you like counterbalance to insure an appropriate democratic process then, you know, if that's all that comes out of it that will be a very good thing, an extremely good thing because i think some of the proportionality and balance had not just eroded but also became ignored. i think people lost their ethical compass here and it became systemic so there was a real weight and incentive for people to push the boundaries further and further and that's why this sort of feeling, i almost detect it as kind as i mentioned before this view that they were untouchable and could do almost anything. >> all right. the second question is to some extent linked.

you were talking about the question of prior notification and you told mr. jay that there was a time when you were in touch with newspapers almost every week. when there was prior notification of potential stories but that had decreased dramatically and you explained it because the damages and balancing risk that you perceived the newspapers were taking. what i want to know is, have there been in this period fewer storis? in other words, if the, if the line of stories remained the same, then are you to expect increased involvement of you post-publication whereas previously you had been able to dampen down the risk of publication of storis? if of course there aren't more stories then that itself might reveal greater responsibility or a greater decision-making being taken by the press not

to pursue particular lines. do you see the question? >> i think i do. i think recently there have been fewer stories which transgress. i think historically what occurred was that you know the law of privacy evolved gradually so that originally the reason why the press were putting stories to us was to evaluate the risk of defamation damages or damages arising from defamation that occurred post-publication and they would assess that risk prepublication. and also to assess whether or not they would effectively have some resistance or no resistance from publishing a story or to acquire additional information. what actually occurred was as they put those stories to us and the law, or if you like, the scope and the way in which privacy arguments could be deployed increased. there was a crossover. so that, as they put stories

to us, we could identify whether or not they were prepare appropriate stories to contest publication at all on the grounds that they stepped on the personal or individual's rights to privacy but what also occurred at the same time was that there was an increase in volume of stories being generated or investigated so that perhaps in from, late '90s to the early part of 2000 there would be maybe one sensational sunday titillating story that was a kiss-and-tell perhaps once every three or four weeks. it accelerated and increased dramatically during the sort of 2003, 2004 and onward era. so there's lots of different dynamics to what was happening in the number of stories and reasons why they did or did not become

published. >> there is a knock-onto that of course that may be acts acting for celebrities and famous who have the where with all firstly to instruct you or to even know about you and second to do something about it if they want to. do you have any observations on the risks of those who do not have the wherewithal or the money or the knowledge to engage with the press at this sort of level? >> i think unless, there's two parts to that, isn't there? there's those people who have had stories published about them where they feel that to contest those stories and to commence proceedings is either continuing the pain and therefore become deterred from doing so or don't have

the financial capability to even consider commencing proceedings. and i think that's a combination if you like, the emotional consequences of having your private life or, defamatory statements published about you coinciding with your financial capabilities. and there is the, those clients who do have the financial capability but become detered because they feel that they are confronting organizations which are enormous and which have extremely deep pockets and as somebody once said to me, why take on a newspaper when actually, they just order up another barrel of ink and your risk in the future? and that is something that i have heard regularly over the years that deters people from taking on proceedings or taking on the media

organizations because they feel that they will, that it will be a war they will fwhefr win and will never win and at some point they have to give up the process. some people are extremely focused about it and will fight to protect their rights and will fight to protect the rights of their families are very protective of their family situation and will not stand for it and they are normally the ones that actually have continued and pursued proceedings which have resulted in substantial damages. >> okay. the third and final area that i wanted to ask you concerns an area which we're certainly going to have to look at but which nobody has yet mentioned which is the internet and you made the point that your, i think

your footballer was concerned about the jigsaw identification using material from the internet. how do you have to engage with those that are responsible for putting material out on the internet? and if so with what effect? because that is in part the elephant in the room. >> i've had three cases which have involved the dissemination of information via the internet either as a result of, if you like, viral rumors or other means. they have all had different consequences and different dynamics to them. it's an extremely difficult problem to confront. i remember the first case

that i was involved in that related to that is the grover house case that referred to a few moments ago. that case was the subject of huge speculation and a lot of it was undertaken by e-mails by people who were either e-mailing web sites or blogs or amongst people within businesses and there is, it is extremely difficult to prevent, if you like, identification or, i suppose focus by dissemination by information on the internet and on that case we made it very clear to employers of being large organizations that they should not condone what were defamatory e-mails by being passed within their organizations and we did actually manage to prevent some of the fallout by using

that sort of technique. interestingly in another case that i had where it was regarding the false -- or identification of a client, pixel eighted or silhouette matter that i referred to, one of the version the newspaper concerned raised irrespective of the fact that it had been identified own on the internet, that who the person was, in the image that was silhouetted that -- >> we are going to leave the last couple of minutes of this hearing into phone-hacking as the u.s. senate is about to gavel in to begin their week. a reminder you can see this hearing anytime in its entirety as usual online on c-span.org/video library. the u.s. senate about to gavel in to start their day.

more work expected on fiscal 2012 defense programs and policy today. lawmakers will turn to a judicial nomination at 5:00 p.m. eastern and they will vote on that after half an hour of debate. now live to the u.s. senate floor here on c-span it. the presiding officer: the senate will come to order. the chaplain, dr. barry black, will lead the senate in prayer. the chaplain: let us pray. mighty god, as we convene the senate today after times of

thanksgiving, please give every member of this body a desire to bring great honor to you. as significant issues are discussed in this chamber, let there be cordiality and civility, wisdom and courage, humility and faith. lord, make our nation a shining example of positive compromise and constructive cooperation. bring to each one serving on capitol hill, the wisdom to see what can be done for the good of our nation and world when your ways become our ways.

we pray in your great name amen. the presiding officer: please join me in reciting the pledge of allegiance to the flag. i pledge allegiance to the flag of the united states of america and to the republic for which it stands, one nation under god, indivisible, with liberty and justice for all. the presiding officer: the clerk will read a communication to the senate. the clerk: washington d.c., november 28, 2011. to the senate: under the provisions of rule 1, paragraph 3, of the standing rules of the senate, i hereby appoint the honorable jim webb, a senator from the commonwealth of virginia, to perform the duties of the chair. signed: daniel k. inouye, president pro tempore. the presiding officer: the

majority leader. mr. reid: i note the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:

mr. reid: mr. president? the presiding officer: the majority leader. mr. reid: i ask unanimous consent the call of the quorum be terminated. i say to the two managers of the bill -- the presiding officer: without objection, so ordered. mr. reid: pardon me? the presiding officer: without objection, so ordered. mr. reid: i'm sorry, mr. president. i say to the marines of the defense -- to the managers of the defense bill, the republican leader is going to be here to give a speech. i'm going to give one but it shouldn't take long.

we'll move immediately to the bill. the presiding officer: under the previous order, the leadership time is reserved. mr. reid: mr. president. the presiding officer: the majority leader. mr. reid: following leader remarks, the senate will resume consideration of 1867, the defense authorization bill. at 5:00 p.m. the senate will be in executive session to consider the nomination of christopher droney to be united states circuit judge for the second circuit. at 5:30 there will be a vote on that nomination. mr. president, i trust that you and all our staff, everyone in this great capitol complex had a safe and happy holiday. i hope everyone is well rested because we have a difficult work period ahead of us. we have much to do over the next few weeks. hanukkah and the christmas holiday are quickly moving ahead. this week we need to finish the work on the defense authorization bill and even more.

this month we'll also handle a number of nominations, extend unemployment insurance for americans struggling to find work during these difficult times, and we have more appropriations work to do. the continuing resolution to fund the government expires on december 16. we must not neglect the responsibility to continue our work to put americans back to work. so we'll take up additional pieces of president obama's american jobs act. this week we'll introduce legislation that would give the economy a boost by putting money back in the pockets of middle-class workers and small businesses by extending and expand ago popular payroll tax cut. more than 120 million families took home an extra $120 billion this year, mr. president, thanks to this payroll tax cut that we championed. the average family held on to more than $935 of their hard-earned dollars this year. we need to assure those families that they can rely on that tax cut next year as well. but this legislation does not --

does more than just protect the tax cuts americans already count on. it deepens and expands that tax relief as well. next year 120 million american families will keep an average of $1,500 because of this legislation. that means they'll have more money to spend on necessities like gas and food and will buy things that help spur economic growth in their communities. businesses will also benefit from this tax cut. 98% of american firms will see their payroll taxes cut in half when their wages they pay out. in nevada 50,000 businesses will benefit from this tax cut and many businesses will save tens or even hundreds of thousands of dollars. this legislation will help families and businesses while spurring hiring and giving the economy a boost and it will be fully paid for with a small 3.25% surtax on income over $1

million. a person who makes $1 million a year, they won't pay an extra penny. someone who earns $1.1 million will pay $3,250 more than they would have originally. at a time when many working families are still struggling, we can't afford not to extend and expand this important payroll tax cut. so i was disappointed to hear from some of my republican colleagues specifically the junior senator from arizona, who has already come out in opposition to this tax cut. i think it's fair to say that all republicans have not. but my friend from arizona did. mr. president, this is wrong. those who claim they care about keeping taxes low but too often it seems thoepbl care about keeping -- they only care about keeping taxes low for the richest of the rich. the same republicans who oppose a payroll tax cut for hundreds

and millions of businesses and families last week jettisoned the hope of a large-scale deficit-reduction deal in the super committee because they insist on a massive permanent taxgiveaways for the very rich. cutting taxes for middle-class families and businesses should be an area where republicans and democrats can find common ground as we have in the past. opposition by republicans is because this tax cut has president obama's finger prints on it. republicans won't support it even though they know it is good policy for american families and businesses. let's hope that is not the case for all my friends. let's examine the effects of their purely political opposition to a commonsense tax cut. if republicans block passage of this legislation, they will be taking money out of the pockets of american families. that is clear. a family making $50,000 a year, this proposal that we've talked about would not only preserve an

existing $935 tax break, it would put an additional $565 a year in the family coffers. if republicans get their way, that family will actually see its tax increase by about $1,000. if republicans block this legislation, 120 american families and 98% of american businesses will not get the tax cut next year. instead 120 million families and millions of businesses will be hit with a tax increase. those numbers are startling. they're shocking. but the potential impact on the larger economy is down right scary. economist mark zandi of moody's said the economy will likely plunge back into a full-blown recession erasing economic progress we've made if we don't extend this tax cut. clearly our fragile middle class and economy can't afford the setback failure to extend and expand these tax cuts would bring.

kweubz say we can't -- republicans say we can't afford to raise these taxes. if they choose to oppose this payroll tax cut, we'll know what they meant to say was we can't afford to raise taxes on the rich. in fact, more clearly, we cannot afford to raise taxes on the rich, but we're happy to raise taxes on the middle class. mr. president, would you announce the business of the day. the presiding officer: under the previous order -- under the previous order, the senate will resume consideration of s. 1867, which the clerk will report. the clerk: calendar number 230, s. 1867, a bill to authorize appropriations for fiscal year 2012 for military activities of the department of defense for military construction and so forth and for other purposes. mr. reid: i send an amendment to the desk, mr. president. the presiding officer: the clerk will report the cloture motion. the clerk: cloture motion. we the undersigned senators in accordance with the provisions

of rule 22 of the standing rules of the senate hereby move to bring to a close debate on s. 1867, the national defense authorization act for fiscal year 2012, signed by 17 senators as follows: reid of nevada -- mr. reid: i ask unanimous consent the reading of the names be waived. the presiding officer: without objection, so ordered. mr. reid: i note the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:

quorum call:

the presiding officer: the majority leader. mr. reid: i ask unanimous consent the call of the quorum be terminated. the presiding officer: without objection, so ordered. mr. reid: mr. president, i ask unanimous consent that the republican leader be recognized to offer his statement as the leader's time and that there be no parliament efforts on his behalf at this time, and that when he finishes the leader's statement, that i would have the floor. the presiding officer: without objection, so ordered. mr. mcconnell: mr. president. the presiding officer: the republican leader. mr. mcconnell: are we in a quorum call? the presiding officer: we are not. mr. mcconnell: well, first, i would like to welcome everybody back. i hope everyone had a nice thanksgiving. shortly before we all left last

week, we got some disappointing news when the yoipt committee on deficit reduction announced it was -- joint committee on deficit reduction announced it was unable to reach the kind of bipartisan agreement that much of us -- many of us had been hoping for. it was a major disappointment to those of us who hoped that the joint committee would ultimately agree to the kind of serious entitlement reforms and job-creating tax reforms that all of us know would have been a big, big help in getting our fiscal house in order and jolting this economy back to life. such an agreement would have also sent a clear message to the american people and to the world that despite our many differences, lawmakers here are capable of coming together and making the kinds of very tough decisions about our nation's economic future that continue to elude lawmakers in europe. i know for a fact that republicans wanted this committee to deliver, and the good news is we'll still see

$1.2 trillion in deficit reduction. but frankly, it's hard to escape the conclusion that some in the white house and even some democrats here in the senate were rooting for failure and doing what they could to ensure that that failure occurred. i mean, what else are we supposed to think when the democrats' top political strategist here in the senate goes out on national television and predicts failure two weeks ahead of the deadline and then comes right out and says yesterday that he thinks the outcome he predicted is good politically for the president. this stuff isn't rocket science, but it's a big mistake. it might seem like a good political strategy to some but it's bad for the country. and that's why i am continuing my call today for the democrats who control the senate to work with us on jobs legislation that can actually pass here in the senate, that can get us beyond the permanent campaign by actually getting something done by working together. for the past several weeks, i have implored the democratic

majority here in the senate to work with us on a number of job-creating bills that have already attracted strong bipartisan support over in the house. it seems to me that if the two parties share control of power in washington, we should spend our time and our energies identifying job-creating measures the two parties do agree on and make them law. it's no secret that many people at the white house and a number of democrats here in the senate would still rather spend their time designing legislation to fail in the hopes of trying to frame-up next year's election. but with all due respect to the political strategists over at the white house, i think most americans would rather we took an entirely different approach, and that's why i think we should put aside the massive stimulus bill along with the permanent tax hikes that democrats are calling for in order to pay for it. in fact, i think it's safe to say that any attempt to pass another temporary stimulus funded by a permanent tax hike on the very people we're counting on to create the private sector jobs we need in this country is purely political

and not intended to do a thing to help the economy since we already know it's likely to fail with bipartisan opposition. so let's focus sneddon the kind of targeted bipartisan bills that the president quietly agreed to last month. 3% withholding bill championed by senator brown and the veterans' hiring bill. as pointed out again and again, the house has been busy all year passing bipartisan jobs bills just like these that we could rally around in a sign of unity and common concern for the millions of americans who are looking for jobs. there's no reason we shouldn't focus on passing these bills rather than using the senate floor as the stage for symbolic showboats that we know won't lead to anything exception more tension and political acrimony. we should do what we were sent here to do, and that means more bill signings and fewer bus tours.

at the moment, the senate business is the defense authorization bill, and there is a lot of work that needs to be done. we have got a lot of amendments pending on this important legislation. members of both sides would like to see these amendments taken up and voted on. so let's stay on this legislation and focus on doing it right. let's show that we can actually legislate around here. once we're finished, i'm hoping we will be able to find a bipartisan path to resolve the other issues before us before the end of the year. americans are growing tired of the same old political shouting matches and political brinkmanship that's marked this democratic-led senate over the past few years. they are tired of careening from one crisis to another, holding their breath in the hopes that the two parties will put their differences aside and work something out at the 11th hour. only to be disappointed when democrats decide they would prefer to have a political issue to run on rather than pliewgz to to -- solutions to vote on. at last count, the house

republicans have passed 22 jobs bills that were designed not only to incentivize the private sector to create jobs but which were also designed to attract strong bipartisan support. in other words, they have been designing legislation to actually pass. they have been legislating with an eye toward making a difference instead of simply making a point. what i'm saying is let's follow their lead. let's come together and pass more bipartisan jobs bills and show the american people that we're not going to settle for the easy way out. the economic crisis we have faced is much too serious for more of the same. mr. president, i yield the floor. mr. reid: mr. president. the presiding officer: the majority leader. mr. reid: i ask that we now proceed to the d.o.d. authorization bill, that it be for debate only until 5:00 p.m. today. the presiding officer: without objection, so ordered. the clerk will report. it is the pending question.

quorum call:

quorum call:

mr. levin: mr. president? the presiding officer: the senator from michigan. mr. levin: mr. president, i see that senator webb son the floorks and i know that he is going to be making some remarks in a few moments, and i would just urge other colleagues of ours to do the same thing. tbher a period now where debate

is -- we are in a period now where debate is in order on any of the amendments, whether they are pending or not pendin pendi, whether they have been filed and not made pending. this is an opportunity that's going to end hopefully wednesday morning when we vote cloture. we must get this bill passed. it is critically important to our men and women in uniform. and they deserve to have a defense authorization bill passed. so i would urge colleagues who have amendments that they have filed to come to the floor this afternoon to debate their amendments. and i yield the floor.

the presiding officer: the senator from virginia. mr. webb: mr. president, i ask unanimous consent that marcus suley of be granted floor privileges for the duration of the 112th congress. the presiding officer: without objection. mr. webb: mr. president, i realize, as the subcommittee chairman of the personnel committee on the armed services committee to speak owrn bill, and i a like to begin my he comments on this national defense authorization by saying what a privilege and an honor it had been to work with chairman levin and senator mccain. i say this as someone who spent four years as a committee counsel in another era and then another five years in the pentagon, four of them as associate secretary of defense

and secretary of the navy working with the congress and finally as a member of the senate. i believe that chairman levin is the epitome of what a chairman -- full committee chairman of the senate should be. and i have known senator mccain for many, many years. as one would expect, we haven't agreed on some political issues, but i have an enormous regard for senator mccain as well. i would like to thank all the members of the personnel subcommittee and especially ranking member senator graham for the work that they have done in preparing this legislation and also would like to thank our staff, gary leely for all the hard work done in order to bring this bill forward. mr. chairman, i have a longer floor statement with respect to the personnel subcommittee's actions that i would ask be submitted to the record at this time. the presiding officer: without objection. mr. webb: i would point out that we've done the best job

that we can do in terms of bringing a bill to the floor that will take care of the needs of the men and women who serve in our military and the national security needs of our nation, and i know that we're going to go into a period here pretty soon where we're going to be going through the defense budget as well as the other areas of the expenditures of this country, and i just hope people will keep in mind as we start making comparisons with military service versus civilian service that military service really is unique in this country in more ways than sometimes we recognize. i remember when i first came to the senate hearing the report of the dole-shalala commission on military compensation and there was a great deal of comparison with respect to how they developed compensation analysis in the civilian sector.

and something that we have to remember when we look at the areas of the united states military, particularly on the manpower personnel side is that you can't pick your job. many, many people come in because they want to spend a portion of their life serving their country. you can't decide if you don't like who you're working for that you want to leave. you can't quit your job. you can't decide you don't want to be transferred if they're sending to you a place you don't want to go -- sending you to a place you don't want to go. and by the way, you might get shot at, blown up or killed. this is kind of a knewnique environment. we tend to forget this when budget cuts come or when the hostilities fade away. but we have an obligation up here to be the stewards -- the lifetime stewards of the people who have stepped forward and put themselves on the line on behalf of our country. there are provisions in this authorization bill that relate

particularly to our basing system in asia. i've spent a good part of my life working on these issues and i'd like to say right at the outset here that i strongly advocate a strategy-driven review of all our bases around the world. i think we need to do a zero-sum analysis based on our strategy as to which bases we should keep in operation and which ones perhaps we shouldn't. but there is a unique situation that exists at the moment in terms of the vital interests that we have as the key balancing force in asia, and we have been working on this, we have developed -- the chairman, senator mccain, myself have worked very hard on this to develop language in this legislation that would call for an independent review of the

basing proposals that have been on the table in korea and okinawa and guam. and particularly with the situation on okinawa, this has become an issue that's larger than simply american military bases in japan. the inability of our two governments to have come up with a workable solution to the basing system on okinawa has created one of the most difficult domestic political situations inside japan today. this has been going on for 15 years. 15 years of uncertainty. we need to move forward on this in a timely manner. it can't be kicked down the road any longer. we have a formula inside this authorization bill which will allow independent eyes to come in and do an analysis of where these bases need to go, sort of a step away from the turf

protection that one often sees among the military services inside the pentagon. there is also going to be considered -- possibly as early as later today -- an amendment that will allow the chief of the national guard bureau to become a full member of the joint chiefs of staff. i oppose this amendment. i'm going to take some time to explain this. i realize this is a moving train. i think we have 70 cosponsors on this bill. but i have offered a second-degree amendment which basically would say, let's take a timeout, let's get another look at this the, let's look at the potential implications of putting the chief of the national guard as a full member

of the joint chiefs of staff. i say this as someone who has -- as all of us -- a tremendous regard for what the national guard has been doing, not only over the past ten years but through the course of our entire history. and one tends to forget, because of the lack of the use of the national guard during the vietnam war, that our history has been marked by the instances of the national guard stepping forward to serve during war. they were the preponderance of our military forces in world war i and world war i i, once mobilization was declared. they sent 100,000 people into korea, but this amendment -- and again i say this as someone who spent three years as the principal advisor to the secretary of defense on guard and reserve programs when cap weinberger was secretary of defense -- i was the first

secretary of defense torres affairs -- the national guard is a unique compas composite. to put the chief of the national guard bureau as a full member of the joint chiefs of staff, in my view -- and in the view of all of the joint chiefs and the secretary of defense -- would be confusing. it would, in the words of secretary panetta -- "would not improve upon this advisory function or advance the start statutory purpose. rather, it would introduce i inconsistencies, and foster the impression that the nafort guard is a separate service. " mr. president, all of the

chiefs agree on this position. in fact, the hearing that we had on this issue was the only hearing in modern member pri where all of the joint chiefs showed up to state their views. i would like at this time to ask that the letters from the joint chiefs, from the secretary of defense and from two of the three service secretaries be entered into the record stating that opposition. the presiding officer: without objection. mr. webb: mr. president, the administration also opposes this amendment. senator graham mentioned during the committee hearing that candidate obama at a national guard association convention expressed his support for this idea, but president obama has yet to offer his support for this idea. and in fact the secretary of defense, as i mentioned, has stated his strong opposition, if the president is inclined to support this idea, perhaps he should clarify that for us.

chief of the national guard bureau already has extraordinary access at the table. there have been some questions about bringing the national guard to the table. he has extraordinary access at the table. he in fact is the only chief of any department in the pentagon who doesn't have to report to a service secretary. he reports to the secretary of defense right now. the other reserve components report through service secretaries. the army reserve as opposed to the army guard. the air force reserve, the navy reserve, the marine corps reserve and the coast guard reserve through the coast guard process. they are all represented at the table in the joint chiefs without having to be members of the joint chiefs. i would remind my colleagues

that what we are proposing here is statutorily doable if this body wishes to do it, but it is going to be bureaucratically awkward in the pentagon if it were to occur. you're going to put a position with the joint chiefs of staff with an individual who is not a service chief. during the committee hearings, senator graham and others mentioned an article that i had written in 1972 in the "marine corps gazette" calling for the commandant of the marine corps to become a full member of the joint chiefs of staff. i actually was quite flattered that someone would recall an article that i wrote 39 years ago when i was a 25-year-old marine corps captain. but the point of the article actually is the reverse of what we're talking about here today. the point of the article was that the marine corps was a

separate service, a completely separate service. the marine corps wears a separate uniform than the navy. the marine corps was being represented on the joint chiefs of staff in the same way that, say, naval aviation was. this is not true with the national guard. the national guard wears the uniform of the united states air force when they were mobilized. they are a part of the united states air force. the army national guard wears the uniform of the united states army when they are brought into federal service, they're wearing the same uniform. we made a lot of this when i was assistant secretary for reserve affairs, talking about one army, one air force. you can't tell the difference when their units are called up and they're put together. so what are we doing when we say that there should be a position on the joint chiefs of staff of an individual who is not a service chief?

what does that say, for instance -- let's just think about this -- about special operations command? the special operations command, a lot of people are writing about it right now because of the activities that they have been doing over the past ten years and the fact that they have pretty well kwupb tup pelled -- republican -- quintupled people on the ground. they are put together by sync and if he had by policies -- and fed by the policies based on the joint chiefs of staff. in 1986, going into 1987 when i was assistant secretary of defense, there was a constitutional confrontation that occurred when a lot of governors in the united states were being pressured by

political groups that did not support a policy of the reagan administration in central america. what they started doing was lobbying the governors of the different states in their role as commander of the militia, the national guard, saying that the governors shouldn't be sending national guard troops, their militia into central america. at one point secretary weinberger turned around to me and said we have 40% of the national guard of the united states potentially nondeployable to central america because the governors in states like california and ohio said they weren't going to send their national guard troops to central america. we had a long and divisive argument over this. it took place for almost a year. finally we worked with sonny montgomery, who was mr. national

guard in the house of representatives, for whom i had worked years before. we got a piece of legislation that said the governor cannot do that. the governor, even though he or she is commander of the militia, cannot stop deployments when the pentagon decides they should deploy. this went all the way to the supreme court. the national guard lost, and we clarified in that supreme court decision the supremacy of the army clause of the constitution over the militia clause of the constitution. basically that the needs of the army, the needs of the united states military, active duty military when calling up these units supersede the desires of a governor. i would say that that principle still would be in effect today and still should be recognized today in the way that the national guard is fed into our

active duty units and air force units when being deployed. they are well represented on the joint chiefs of staff. every member of the joint chiefs of staff emphasized this and every one of them discussed the confusion and potential inequality among other reserve components if this amendment were to succeed. i have enormous respect for senator leahy. i consider him to be a great friend. i know he's not particularly happy with the statement i'm making right now. but i hope that people will take a hard look at the amendment that i'm offering, which basically says let's take a time-out. let's look specifically at the effects that this position, positioning of the chief of guard as a member of the joint chiefs would have on the principals of civilian control, on accountability, of someone who is not subject to the

oversight of a confirmed secretary of the military department, and a number of other issues. with that, mr. president, on the remainder of this bill, i express my strong support, my respect and admiration for chairman levin, senator mccain and the other members of the committee. and i yield the floor. a senator: mr. president? the presiding officer: the senator from oklahoma. mr. coburn: i ask unanimous consent to speak as if in morning business for 15 minutes. the presiding officer: without objection. mr. coburn: i listened to parts of what senator reid had to say as we opened the senate today, and i was struck by the fact that so many people are unemployed and our economy is still barely growing, that there probably is not any firm objections to trying to alleviate some of the pain by continuing a process where we lessen the tax burden through a decline in the social security

tax. and i don't think that's going to be the issue with many senators. the question is, is: do we do that by raising taxes on other people or do we do that by getting rid of waste? and i had an interesting phone call today with somebody i trust, and i've been talking to for three years who has actually predicted everything that's happened so far. and he's predicted what's going to happen in europe and predicted in the fact that ultimately there's going to be default in europe on governor bonds. there's going to be default. there's no way they grow themselves out of it. no way we loan them enough money to buy enough time to get out of it. the only way they get out of it is by trimming their spending which they should have started two and a half, three years ago. the same lesson applies to us. so i think some things that are factual ought to be brought up. we had the, over this past week the inability of the committee

to come to agreement on $1.2 trillion. and so, therefore, there's going to be a sequestration. but interesting thing on the way to the farm, when you have the sequestration carried out, the actual -- there will be no degrees in spending in the -- there will be no decrease in spending in the federal government. this is an important thing i want the american people to hear. they think we're cutting spending. defense will rise 16% with the sequestration. non-defense discretionary will still rise 6%. medicare will still rise 71%. net interest will rise 160% with the sequestration. so it's dishonest to put it mildly to say that we're cutting anything in washington. and there begs the problem. the problem is, is the political

elite in this country is failing to make the adjustments that we have to make or we're going to end up like greece, portugal, spain, italy, and ultimately france. we have to do that. the sooner we do it, the less pain we're going to have. the first thing we ought to do is be honest with the american people. nobody has done anything in washington yet to cut any spending. because spending is still going to rise both in discretionary and defense, medicare, medicaid and social security. it's all going to rise, and so's interest. it's still going to rise. so we have to go back to the fundamental problem. what president obama is proposing costs about $240 billion for next year. and i think he'd get great support from many of us if he said i want to do this to help people out there, and i want to do it by getting rid of some of the waste, fraud, abuse and duplication that we have.

i'd be the first to help him. but that's not what's going to be proposed. instead of playing the political game, why don't we actually solve the real problems? we had a g.a.o. report that came out in march that showed massive duplication throughout the federal government -- massive. my estimate is close to $200 billion a year. that's not theirs. that's mine. but at a minimum, $100 billion a year could be saved just by consolidating programs and eliminating duplication. we haven't done anything. we haven't made any attempt to do that. we passed one -- senator warner and myself offered one amendment to eliminate $5 billion of it, and the bill that it was riding on was withdrawn. we haven't had an opportunity on the all the bills that have come before to get an amendment even up to offer to eliminate duplication. before we asked anybody to pay more taxes to offset the taxes we're going to decrease for the

businesses under $50 million and for the decline in the payment of social security tax, the 3.1% for the business and 2% for the individual, the first thing we ought to do is get our house in order. and we're doing exactly what the european countries refused to do. and now we hear over the weekend we're about to participate through the i.m.f. in socializing the debt of europe, of which we are required through i.m.f. to absorb 26% of the cost. we're not going to let that happen because what we're going to do is exactly the same they think we were doing with the cities. delaying the onset of the time at which they're going to have to make the hard choices. so we can't do that. but it's interesting. here's the growth curve. in the red is with sequestration. in the blue is without sequestration. we're not cutting spending. it's still going on. we're going to be at $5.4 trillion annual budget in 2021,

nine years from now. no spending has been cut. we need to quit lying to the american people about what we're doing. a 9% approval rating is well earned as long as we're dishonest with the american people about what we're actually doing. they understand the problem. we're broke. and if you don't think that's the case, just look. medicare is broke. there's no question about it. medicaid's broke. the census is broke. fannie and freddie is broke. f.h.a. has 0.2% of the capital they need when they have a minimum statutory requirement of 3%. they're broke. f.h.a., social security, it is broke. $2.6 trillion in the trust fund. we put $105 billion from the treasury in to offset what we did this last year. now we're going to pay for it

twice because there was no decrease in the i.o.u. sore for that -- so for that $105 billion our children and grandchildren are going to pay back $210 billion. with this new program they're going to pay back $480 billion because there is not going to be an offset in the trust fund. u.s. post office, it's dead broke. and we won't even pass a bill that allows it to be fixed. what we do is just delay the time of its demise. cash for clunkers, we're broke. the highway trust fund is broke. we're passing bills for the highway trust fund that is $13 billion short. we don't know where the money is going to come from because the trust fund is broke. government-run health care, we don't know but it's likely to be broke before it starts. so how do we solve the problem? mr. mccain: will the senator yield? on the issue of the post office, not a big deal, but isn't it kind of a symptom of the disease we suffer from around here where we would not even agree to legislation that cuts mail

delivery from six days to five, which is the recommendation of the postmaster general? mr. coburn: and the prepldation of the president of the united states -- and the recommendation of the president of the united states. what about duplication? is there not some place we can find the $240 billion that president obama wants to put into the economy for helping those in the middle and lower-income levels make it through this tough time? sure there is. we have 100-plus surface transportation programs that can easily be consolidated down to 20. we have 82 teacher quality programs. 82? economic development programs, we have 88. transportation assistance programs, outside surface transportation, we have 80 of those. we have 56 financial literacy programs. we have 47 job training programs. $18 billion a year, all but three overlap one another.

not one of them has a metric to say it works. homelessness prevention and assistance, 20 separate programs. there is nothing wrong with that goal. why do we need 20? food for the hungry. we have 18 different programs. couldn't we do that through one federal program? why do we need to have 18? disaster response and preparedness in fema, 17 different programs. we have taken a stupid pill, and now we set bankrupt, we're physically bankrupt -- fiscally bankrupt and physically bankrupt -- at this moment, except we just haven't recognized it. and what is happening in europe is going to happen to us in less than a year. the price that we pay for our bond, interest, is going to go up. the price differential between a german and italian bond in the last ten days has risen 270 basis points. a spread -- they pay -- germany

couldn't even sell all their bonds. what is happening? it's a lack of confidence. so we have to restore confidence. the way we do that is by actually paying for the good things we need to do by eliminating commonsense -- putting forth commonsense solutions for elimination of programs that are duplicative. i'll finish up with just a couple other points. just some ideas. if you started now, you could put the 2020 census online. you would save $2 billion. increase the paperless transactions at the treasury department. you could save $1 billion. these are per year, by the way. gradually increase for g.s.e. securities, president obama has started that but it needs to be accelerated. move core functions of the election assistance commission to the f.e.c. it's $161 million. we could just -- we could consolidate. we could do commonsense things.

we could combine the s.e.c. and cftc. we could save $2.8 billion. move the s.b.a. disaster loans to fema. you have got to go through fema anyhow before you ever qualify for one. why not let them do it? why would we have two separate programs? why do you have to go to two doors? it would be like getting your driver's license down where you bought the car and go somewhere else and get it and then you have to go somewhere else. we could eliminate that. national drug intelligence center. it doesn't do anything. it's an earmark. we have spent $488 million on it the last ten years. it does nothing of concrete value to anybody in the intelligence network, but it's an earmark gone crazy. so what do we do? we put together a shopping list that you could use. you don't have to agree with any of it. but over the next ten years, if you just agreed with a third of

it, you could find the third, you can save $3.3 trillion. all right? that's $85 billion more if we just did 1/10 of it this year than what the president would like to do with this job stimulus program. none of this is hard. there certainly can be some debate over what we fund and what we don't fund in defense, but most of it is common sense, and will people squeal? yes. everybody is going to have to squeal if we're to get out of the problem that we have in this country. so i will conclude with this -- i think we ought to continue until our economy is back on keel a social security tax cut, but i think the only way we should do that is by eliminating some of the $350 billion a year

of waste, of duplication and of fraud in the federal government, and if we can't do that, we shouldn't be here. none of us should be here, and the fact that the politics of the next election is crippling this country says that we deserve the 9% rating that the american people are giving us. all we have to do is change that. you know, what we have to do is grow a backbone, stand up and say no to people, say we have got to do this, it's for your future and for our kids' future. these are the things that are least painful. here's what happens if we don't. the very people that we say we don't want to harm now by changing some of these multitude of duplications, all these other programs, all this waste, all these feel-good things that part of the time accomplish good things, those very people are

going to suffer a significantly more amount because of our inaction. it's a time for us to act. it's time for us to do what is necessary to put our country back in the right direction and on a healthy diet of fiscal prudence, smart tax policy and get out of the rut that we're in. that requires leadership by each of us. not just the president. all of us. and it means you have to take some hits. when i put back in black out, i got terrible, nasty letters from all sorts of people. i understand. they're getting something. some of that is put at risk, and therefore you can't represent them. everybody's going to have to give. and if everybody doesn't give,

we won't have a run left. that's what's coming. default. we're broke now. we're just not in the reality of it, but what is coming is default of american bonds if we do not act now. it can't wait two years. it can't wait for the next presidential election. we have to do it now. with that, i yield the floor. i notice the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:

mr. levin: i ask unanimous consent that further proceedings under the quorum call be dispensed with. the presiding officer: without objection. mr. levin: under the current u.c. we're operating under the debate is in order this afternoon and we are urging that our colleagues who have amendments pending come and debate those amendments. now, this is an opportunity for them to do so. this opportunity is not going to last for very long because we've got to get this bill passed. so i would urge -- i know my good friend from arizona would join me in urging colleagues who have amendments whether they're pending or not, we're not going to be able to have any additional amendments added to the pending list by unanimous consent because we already have something like a hundred pending

amendments that is just more than we're going to be able to handle. may be more than we can handle to deal with the ones already pending. but i just would urge colleagues, otherwise tomorrow we're going to be hearing from colleagues gee whiz, we want to offer an amendment or debate the amendment and there won't be time before that cloture vote on wednesday, and we're not going to have more than this week for this bill. we've been informed by the majority leader that he wants to finish this bill by thursday. so i strongly urge our colleagues to come and use this opportunity to debate their amendments that will increase the chances that we'll be able to get to their amendments for a vote. mr. mccain: mr. president. the presiding officer: the senator from arizona. mr. mcconnell: rsh i ask unanimous consent to engage in a colloquy with if distinguished chairman. the presiding officer: without objection. mr. mccain: isn't it true, i'd ask the chairman, that we went on this bill last thursday and spent a good part of thursday on this legislation. and then on friday, you and i

and a few others came in on friday and we had further debate and discussion of amendments. and then we came in, i believe around 1:00 today, and enjoined our -- in fact, pleaded with our colleagues to come and discuss their amendment they have pending. i understand there are some -- over a hundred amendments that are pending. and so it does ring a bit hollow if some of our colleagues have made -- may say they didn't have time to debate the amendments that are pending. so i would say to my colleagues, i believe and have stated endlessly that this piece of legislation which has to do with the nation's security, which has been passed by the congress of the united states for over 50 years now, over half a century without

interruption, that we're doing a disservice to the men and women in the military if we don't debate these amendments, if we don't discuss the important issues of national security that are embodied in this legislation. so i would ask my friend the distinguished chairman after these thousands of hours of work and now on our fourth day of consideration of this bill, that maybe it might be appropriate for us to take measures to expedite the process so that -- and again, i urge our colleagues who have pending amendments to come down, debate, discuss, and so that we can line up votes because there are so many pending amendment, it's going to require a significant number of votes as well. mr. levin: i surely concur with my colleague that we have been here now i think this is the

fourth day, the days last week which the senator referred are different from my own memory, i think they were earlier in the week than the senator referred to but nonetheless the point is the same. i believe we were here either tuesday or wednesday but there were two days before we left for thanksgiving where we were here and your point is well taken. the floor was open to debate, people offered amendments, they -- they had an opportunity to make them pending and now we have a huge number of those amendments pending and now it's time to start disposing of amendments. andles nls our colleagues come to the floor to do that, we're not going to be able to get through this bill and the leader will not continue to allow us to continue to debate this bill beyond thursday. we know that's the case because we know how much pending legislation there is that the majority leader needs to get through. so i can only, again, join the

senator from arizona in a joint plea that our colleagues who have amendments come and debate those amendments and hopefully we can get to votes on those amendments, even yet today after the vote on the judge at 5:30 or so. mr. mccain: so my colleagues should not object to short time agreements for debate, final debate before, we vote on some of these amendments. mr. levin: i hope when the time comes, when colleagues come, that unless they agree short time agreements, there's no way we'll be able to get this bill done even if their amendments pass. it will not do anyone any good to have long debates on amendments when people finally come to debate those amendments even if the amendments pass because there won't be an opportunity to get the bill itself passed. so that is very true. mr. mccain: mr. president, i yield -- i suggest the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:

ms. collins: mr. president? the presiding officer: the snoer from maine. ms. collins: mr. president, i ask unanimous consent that proceedings under the call be dispensed with. the presiding officer: without objection. icle km thank you, mr. president. president. ms. collins: thank you, mr. president. mr. president, i ask unanimous consent that the senator from delaware, mr. coons, the presiding officer, be added as a cosponsor of senate amendment 1155 to the pending bill, senate 1867. the presiding officer: without objection. ms. collins: thank you, mr. president. -- for cosponsoring the amendment. mr. president -- mr. president, earlier today the chairman and

the ranking minority member of the senate armed services committee came to the senate floor and asked for members to come forth with their amendments. i want to speak on my amendments as well as the underlying bill today, but i want to begin by commending senator levin and senator mccain for their superior work on this very important piece of legislation. for this reason, mr. president, i rise in support of the fiscal year 2012 national defense authorization act. this bill represents a bipartisan commitment to ensuring that our brave men and women in uniform have the support they require to execute our nation's military strategy

and to defend freedom around the globe. the legislation will improve the operation of the department of defense. it will strengthen congressional oversight of the department, and it makes fiscally responsible -- but very difficult -- choices in order to meet this year's budget caps. as a member of the senate armed services committee, i urge all of my colleagues to support this important bill. mr. president, i'm particularly pleased that this bill fully authorizes the navy's budget request for shipbuilding. while shipbuilding accounts for fewer than $1 out of every $10 of the navy's budget, it is a critical component to the strength of our national

defense. the chief of naval operations has testified that a fleet of 400 ships would actually be required to meet the unconstrained demands of the combatant commanders. due to budget constraints, however, the navy armies for a fleet that equals 313 ships in the future. but, mr. president, the navy today has only 285 ships. the ddg-100 program, the ddg-151 restart, the virginia-class submarine and other ships in the shipbuilding budget will help to close the troubling gap between the requirements of the combatant commanders and the number of ships that the navy

actually has. i'm particularly proud that the skilled workers of bath ironworks in my state are playing such a critical role in building the ships that our navy requires. bath's excellent performance of delivering ships on time and under -- or on budget to the navy continues, mr. president. this year b.i.w. delivered the u.s.s. pruance to the navy, where the destroyer will serve in the pacific fleet. in addition, b.i.w. has completed more than 60% of the construction of the very first ddg-1000. this is a destroyer for which the navy laid the keel for the ship two weeks ago. so consider that, mr. president,

that 60% of the construction had been completed before the keel-laying ceremony. that is a feat which is all that much more impressive when you consider that the rework rate for ship construction -- and this ship is first in its class of ships -- has been less than 1%. that is an extraordinary record and a tribute to the high-quality work performed by the men and women of bath ironworks. mr. president, last week the president made clear that the united states will not shrink from its role in southeast asia and the pacific, two regions where a forward presence and persistence depend on the ships of the united states navy. at a time when the chinese fleet

is larger than our own and is expanding, now is certainly the time to reinvigorate rather than weaken our shipbuilding industrial base to build ships that are capable of operating in antiaxis and area denial environments. in recent weeks, secretary of defense panetta has warned about the negative effect of sequestration on the fragile shipbuilding industrial base and his concern that under this procedure, which would involve oughtmatioughtmatic cuts disproportionately aimed at the department of defense, the navy should shrink to the smallest force since 1915.

unfortunately, mr. president, the navy fleet is already the smallest that it has been since 1916, despite the escalating threats that we face. so i want to thank chairman levin, ranking minority member mccain, and the chairman and ranking member of the sea power subcommittee as well for recognizing the importance of fully authorizing the president's request for shipbuilding. this legislation also includes important acquisition r reformso ensure that taxpayers receive the best value for every dollar authorized in this bill. one provision requires the military services to determine if they can save money by

performing service life programs for nontactical vehicles and equipment rather than purchasing new gear. the committee report also seeks to save taxpayer dollars by directing the air force to evaluate the annual fuel costs that would be incurred at each candidate base before the air force decides where to assign new aircraft, such as the kc-46-a tanker. in addition to providing better value to the taxpayer, the government procurement process should be fair, open, and entirely free from politics. i would hope that that is a goal that every member of the senate could agree on, mr. president. last spring, however, the

administration was considering a draft executive order requiring federal agencies and departments to collect information about campaign contributions and political expenditures of bidders before awarding any federal contract. mr. president, i would suggest to my colleagues that that is the antithesis of sound procurement practices. for the administration to even consider a change that would inject politics into the procurement process goes in entirely the wrong direction. such a move would create the perception that political support or opposition is somehow a consideration in selecting the winners and losers among

businesses vying for federal contracts. to ensure that contracts are kept out of the procurement process, an amendment that i offered with senators portman and brown was adopted by the committee, with the wholehearted support of the chairman and ranking member, and i would note that it was adopted without opposition. our amendment specifically prohibits the department of defense from collecting information about political contributions made by companies seeking to conduct business with the federal government. mr. president, think what a terrible position that would put contracting officers in. right now they are just collecting information about the ability of a contractor or would-be contractor to perform

on the contract, information about the price that they're bidding, information about past performance. what kind of signal would it send to contracting officers if all of a sudden they're required to collect information about political contributions and expenditures? that would muddy the procurement process. it would imply that somehow political contributions are supposed to be considered in the contract award process when exactly the opposite must be the case. mr. president, another area of particular concern to me is ensuring that our servicemen and women receive the health care they deserve, particularly as it relates to mental and behavioral health. while the rate of active duty

suicides did drop last year, it is very sad to know that almost twice as many guard members and reservists committed suicide in 2010 compared to 2009. and this is a tragedy that our chiefs of the services, that the secretary of defense, and the members of our committee are taking very seriously. we don't know enough about the phafactors why, but we don't knw that we need to provide better access to counseling and other services to our servicemen and women, to our reservists, to our guard members, and to our veterans.

unfortunately, the department of defense has had limited ability to allow its own civilian and contracted mental health professionals in one state to provide care to a patient in a different state. that is a result of complicated state licensing laws, with which i'm very familiar, having overseen the licensing of mental health professionals for five years in my career. the result, mr. president, is that many in our military -- particularly guard members and reserve members who live in rural areas, where there's a shortage anyway of mental health professionals -- must travel long distances to access care. so the result is that in many cases they simply don't access

care at all and don't receive the care, the counseling, the assistance that they need and deserve. this bill includes a provision included at the request of senator begich, senator brown, and myself to expand access to mental health care providers for those individuals who have served. this provision, our amendment, will allow mental health care professionals that have been qualified by the department of defense to serve members of the armed forces and our veterans using telehelp, a capability that the army in particular has sought and believes would be very useful so that s-ftss can be -- so that services can be provided by a video conference,

for example, to members that may be far away from the actual mental health professional. mr. president, the bill also includes provisions to increase protections for service members who are victims of sexual assault. one in six women will be a victim of a sexual assault in her lifetime. yet, in the military, that terrible statistic is even higher, much higher, i regret to say. as many as one in three women leaving military service report that they have experienced some form of sexual trauma. the provisions that were included in the bill at the request of all the women of the

senate armed services committee as well as senators brown and begich were based upon legislation that senator kerry and i introduced to implement some of the overdue recommendations of the 2009 defense task force on sexual assault in the military services. of the 91 recommendations made by this task force, only 26 have been fully implemented by the pentagon as of may. only 26 of the 91 recommendations. so there are a couple of these recommendations that are particularly important and have been included in the bill. these recommendations include providing victims with access to legal counsel and ensuring that each military unit has an

adequate number of trained -- and i would emphasize the word "trained" -- victim being advocates and sexual assault response coordinators. the bill also requires department of defense and the v.a. to implement a comprehensive process to preserve medical records and evidence related to sexual assaults. this has been a real problem, mr. president. this process will protect victims access to v.a. benefits and will help support the prosecution of their offenders. finally, in this area the bill modifies the uniformed code of military justice as requested by the judge advocate generals to improve the likelihood of prosecution of sexual offenders in the military.

while this bill does much to provide for our service members and improve the processes of the department of defense, i believe that we can further strengthen this bill. and i have offered three amendments with that goal in mind. first, i have introduced amendment 1180 with senators shaheen and casey to address the serious threat posed to the american people by the missing portable antiaircraft missiles from libya. our amendment requires an urgent intelligence assessment of the threat these missiles pose to the american people and our allies, and it requires the president to develop and implement a comprehensive strategy to mitigate this threat.

former libyan dictator colonel qadhafi acquired more than 18,000 of these portable missiles, one of the largest stockpiles in the world. and make no mistake, no one has an accurate accounting of where all these missiles have gone, where they are now. while the administration has sent teams to inspect and disable these missiles where they know that they exist, there is no comprehensive strategy in place, despite very disturbing reports of libyan militias refusing to disarm themselves and of terrorist groups seeking these weapons. mr. president, recently senator mccain and i had the opportunity at the world economic forum in jordan to meet

with the then-acting prime minister of the libyan transitional national council, and we asked them specifically about the issue of the libyan militias all over the country, and he was very forthright in saying that he had been unable to bring them under a uniformed control, a real issue, mr. president. and, unfortunately, he has decided that he needed to resign in part due to that issue. the united states simply must make accounting for these weapons, these dangerous weapons that can be aimed to take down a commercial aircraft. this must be a priority in libya and throughout the region, and i appreciate the support that chairman levin and senator

mccain have expressed for this amendment as well as the helpful suggestions from senator kerry, senator lugar and the senate select intelligence committee. mr. president, i've also offered an amendment number 1155 to allow physical and occupational therapists to enroll in the armed forces health professionals scholarship program. this program provides tuition assistance to critical health care professions, professionals in exchange for service as a commissioned medical officer. unfortunately, while the need for physical therapists has grown during the last ten years of war, neither the department of defense nor the military services have conducted a separate analysis of the current or future d.o.d. workforce

requirements for occupation and physical therapists, even though such an analysis was required by last year's defense authorization bill. my amendment would allow the military services to extend the same kind of educational benefits to physical and occupational therapists that are already afforded to physicians, dentists, physician assistants and even veterinarians. physical and occupational therapists at the military's major medical centers serve approximately 600 wounded warriors every day on their road to recovery. more than 32,000 service members have been wounded in iraq and afghanistan, including many who have suffered very serious injuries and have had to have

amputations, for example. those injuries require significant physical therapy. mr. president, the idea for this amendment came directly from a visit that i had with a wounded marine from maine at bethesda earlier this month. he was severely wounded by an i.e.d. in afghanistan. he lost part of one leg and his other leg has a lot of shrapnel wounds. both of his arms were wounded and he has a traumatic brain injury as well. in short, he has very serious -- very serious wounds that are going to require a very lengthy recovery period. but he's recently been moved into wonderful accommodations,

his own apartment at bethesda. his spirits are amazingly strong and upbeat. but when i asked him, mr. president, if he had any concerns erbgs said while he -- concerns, he said while he praised the care that he was receiving that there was a severe shortage of physical therapists and other trained clinical personnel to help him in what is going to be a very long recovery. he is expected to be at bethesda for another nine months. and it really troubles me that he believes that there aren't a sufficient number of physical therapists to help him and the other wounded warriors who are hospitalized at bethesda. while the department of defense reports that overall it does not

base a shortage in these professions, both the air force and the navy report shortages in physical therapists, physical therapy technicians and occupational therapists. one out of every four physical therapist positions in the active duty navy is currently unfilled. so, mr. president, including these medical professions in this existing educational program would help meet this need. i want to point out that we're not authorizing additional or new funding. however, this is an important insurance policy against a shortfall of these medical professionals. it will help the air force and

navy fill vacancies. for, after all, it is these talented and committed professionals who are helping our wounded warriors return to living full and independent lives. finally, mr. president, i have introduced amendment number 1158, a bipartisan amendment with senators begich, manchin and chambliss regarding the prohibition on the transfer of u.s.-held detainees to a country that has a confirmed case of a released individual who has returned to the fight. this is so needed, mr. president. i would note that this provision

was permanent in the detainee amendment that was offered by our chairman and ranking member that was adopted overwhelmingly by the senate arms services committee during our june markup. nevertheless, this provision was reduced to a temporary one-year restriction in the current version of the bill in response to concerns from the administration. now, i want to point out that my amendment would only make permanent the provision -- the prohibition on the kr-fr of american -- on the transfer of american-held detainees to a country that has a confirmed case of recidivism. it does not change any of the other transfer provisions in section 1033 of the bill. let me make clear that i support

the hard work that chairman levin and senator mccain have done to craft a permanent detainee policy that has great -- a great deal of support on a bipartisan basis. while there may be genuine disagreement regarding other aspect of the detainee policy provided for in this bill, the amendment that i put forth permanently establishing the commonsense policy that we will not return detainees to countries where they are returning to the battlefield, should not be an issue that divides this body. in spite of the spirited and lengthy debate in committee on detainee policy, this particular provision in my amendment was not the subject of controversy.

let me give a little more background on why it's necessary. in september, the director of national intelligence, james clapper, testified that the recidivism rate of transferred guantanamo detainees continues to increase. 27% of transferred detainees released from guantanamo to another country is what i'm talking about. up from 25% last year are believed to have rejoined the fight, rejoined the cause of terrorism. of the 599 detainees who have been released from guantanamo, there are 161 individuals confirmed or suspected of re-engaging in terrorist or

insurgent activities. half of those cases have been confirmed by the intelligence community, which is an increase of 5% of confirmed cases from march, 2009, to october, 2010, and i believe it's likely as further intelligence is developed that the rest will be confirmed, those suspected cases are likely to be confirmed as well. former detainees who were previously mid level enemy combatants are not simply returning to be another fighter armed with a rifle, although that, too, is clearly unacceptable. according to michael vickers, the under secretary of defense for intelligence, former detainees are advancing in the leadership ranks of al qaeda and

its affiliates. for example, sayed al-shariri was released from guantanamo in 2007 to saudi arabia. he participated in the called rehabilitation program, but then traveled to yemen and within two years of his transfer he was involved in planning an attack on the u.s. embassy in yemen in september of 2009. he also became a deputy in al qaeda in the arabian peninsula. the terrorist group responsible group responsible for the attempted christmas day bombing in 2009 and the attempted package bombs last year. in fact, aqap is considered by

most intelligence analysts as imposing the most danger to our homeland. there are other cases as well. there is a case where one of the detainees who was released to afghanistan in 2007 told american officials prior to his transfer -- quote -- "i just want to go home, join my family, work my land and help my family." instead, after he was released by the afghan government in 2008, he went back to fighting, and press reports indicate that this former detainee was promoted as a top deputy in the taliban and put in charge of operations against u.s. and afghanistan forces in southern afghanistan in 2009. in fact, "newsweek" reported that roadside bomb teams under

his direction have caused more than half of nato's 160 deaths in afghanistan in the first five months of this year. there are other examples as well. example after example after example of detainees who have been released from guantanamo and who have been returned to the fight. mr. president, we need a permanent provision to deal with the recidivism threat. as hopeful as i am that the national defense authorization bill will be passed each and every year, and if there is a grave record of the armed services committee in that regard, there is no guarantee that the legislation will be passed by the congress and signed into law by the

president. in fact, we're already three months into this fiscal year and we are vehicles from having a defense authorization bill signed into law despite the heroic efforts of the leaders of the armed services committee. ten years after these wars have begun, it is clear that when we transfer detainees to some countries, they may well rejoin the fight against our country and our allies. it is time for congress to establish a permanent policy in the defense authorization bill that we will not transfer detainees to countries where there have been confirmed cases of released detainees returning to the fight. i urge my colleagues on both sides of the aisle to do exactly

that by supporting this bipartisan amendment. finally, mr. president, the people of maine have a proud history of contributing to the defense of our country. members of the maine national guard have served in afghanistan and iraq as well as active duty soldiers, marine, airmen, sailors and others from our state. the air guard unit in bangor continues to perform critical refueling missions for aircraft headed overseas as it has done since 9/11/01. many of the sailors who are deployed serve on one of the 100 ships currently under way that were built at that ironworks or

on submarines repaired and overhauled and refueled at the portsmouth naval shipyard in kittery, maine. from the defense finance and accounting center in limestone to the pratt and whitney plant in north burwick, maine, from cutting edge composite of renewable energy research at the university of maine to the innovative high-tech firms throughout our state, mainors have faithfully supported our national defense with ingenuity, innovation and superior craftsmanship. the investments authorized in this bill support these efforts in maine and other states throughout the country, and they will continue to ensure that our

extraordinary military remains the best trained and the best equipped in the world. thank you, mr. president. i would yield the floor. the presiding officer: the senator from michigan. mr. levin: i just want to thank her for the extraordinary contribution she makes to our committee as well as the senate. she and i have worked long together. we work extremely well together. we have seen a lot of things that are able to get passed because people work together, a lot of measures that can happen because people are willing to set aside partisanship and she has been one of the leaders in getting things done in this body and in the committee, and i just want to thank her and tell her how grateful as chairman i am for her contribution. we're working hard on the amendments that she has offered.

they are being worked on last week and this week, and we'll have something to report to her i hope in the next few hours. ms. collins: mr. president. the presiding officer: the senator from maine. ms. collins: mr. president, i just want to thank the committee chairman for his extremely generous remarks. it has been a great pleasure to serve with him on the armed services committee, and i very much appreciate his outstanding leadership. senator levin and i actually go way back to when i was a staffer on the government affairs committee, i was the staff director of a subcommittee on which he was the ranking member and chairman, went back and forthwith senator cone, and it is a great honor and pleasure to serve as his colleague during these past 15 years, so i appreciate his comments. thank you. mr. levin: i will add one thing, mr. president, and that is she

has also been my chairman as well as the ranking member on the homeland security committee, so we have an awful lot of history together. i'm glad she didn't mention how many years it was that we have been working together because that dates us a little bit, but we do go back a long way and have tremendous confidence in each other, and i do in her. the presiding officer: the clerk will call the roll. quorum call: mr. president.

the presiding officer: the senator from vermont. mr. leahy: i ask unanimous consent the call of the quorum be dispensed with. the presiding officer: without objection. mr. leahy: mr. president, am i correct that we're on the defense authorization bill? the presiding officer: that is correct. mr. leahy: mr. president, one of the amendments that has been pending is the leahy-graham national guard empowerment amendment which is senate amendment number 107. i was just discussing with the distinguished leaders of the armed services committee, senators levin and mccain,

the possibility of a time to bring that amendment up for a vote. but let me just, while we're in quorum calls anyway, let me talk a little bit about what the amendment is. over the past decade, as we all know, the national guard has undergone a profound, actually an historic change. once it was a hollow force he considered only a strategic reserve for nightmare contingencies but instead the national guard has become an operational reserve that deploys in regular rotation with thive-duty force. as a matter of policy and reality our army and air national guard troops from states around the country shoulder their load overseas but they also carry a disproportionate share of the domestic response and disaster relief mission at home including responding to terrorist events.

yet institutional support for the national guard still lags behind its operational role. i think when i've been on battlefields whether iraq, afghanistan, or elsewhere, and i talk to the commanders there, they don't know the difference between -- look at soldiers about to deploy which one is guard and which one is regular force because they're deploying together and expected to do the same job. but, unfortunately, today's national guard is a superb 21st century force trapped inside the 20th century pentagon bureaucracy. without raising the profile the chief of the national guard bureau and the extreme military advisory body of the department of defense, the joint chiefs of staff, the united states will miss an opportunity to capitalize on positive changes it began in response to the

post-9/11 operations tempo. so our amendment makes that change as well as several others that will enhance the guard's effectiveness. i may sound parochial, mr. president, but i think of immediately after 9/11. we had armed f-16's flying guard over new york city around the clock, day after day after day. they're from the vermont air national guard. and they -- they maintained their readiness, seven days a week, 24 hours a day. protecting us because we didn't know what else might come. well, i think just about every senator here could talk about similar type things, the guard from his or her state have done. now, in this period of flat

lining or even declining pentagon budgets, the department of defense has to increase the role of the national guard as an element of the overall force mix. without the chief of the national guard bureau on the joint chiefs of staff, among other changes made by this amendment, the unique experience of nearly half a million members of the national guard will continue to be largely unknown. and their voices, their interests, their concerns will go mostly unheard. so this change is not only necessary, it's actually a decade overdue. this amendment is not just out of the blue. it has 70 cosponsors, more than two-thirds of the united states senate support it. it's an overwhelmingly bipartisan majority of senators. it goes across the political spectrum, it goes across the states of this nation. it demonstrates the provisions

contained in this amendment all of which empower the national guard should be included in this year's national defense authorization act. as i said, i've been overseas, i know the distinguished presiding officer has, most of us here have. we've with watched our troops operate and you cannot tell which troops are in the guard and which are active duty. and certainly when they're out facing the enemy and putting their lives on the line, there's not a sign that says shoot at this one because they're active but not this one because they're guard. they're all facing the same dangers. they stand and work side by side. we have to reflect that reality inside the pentagon as well as outside of it on the battlefield. so i urge all of my colleagues, cosponsors and nonsponsors alike, to join me in making sure the guard finally has a voice commensurate with its operational role.

mr. pr -- mr. president, i'd yield the control and suggest the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call: e presiding officer: the

senator from massachusetts. mr. brown: thank you, mr. president. i ask unanimous consent that the quorum call be dispensed with. the presiding officer: without objection. mr. brown: thank you, mr. president. mr. president, i rise today to speak briefly about the fiscal year 2012 national defense authorization act. as a member of the committee on armed services and as the ranking member of the subcommittee on air land, i can say it's one of the most, if not the most bipartisan committees in the senate. as i've said many times before, mr. president, we're americans first. and it's fitting that the senate still works that way when it comes to providing the tools and resources for our men and women serving in uniform. we proved it when we passed the tax credit for unemployed veterans, something i was proud to sponsor and was also proud to be at the white house for the signing ceremony just a little over a week ago. i'm proud of this bill as well which represents a year's worth of hard work and devotion by

senators levin and mccain and all the committee members and their staffs for their dedication to putting out a top-notch bill. i want to also thank senator lieberman, chairman of the air land subcommittee for his committed leadership and effort on behalf of our military and military families. i've been honored to work with him and his staff through throue year. i believe we've developed thoughtful provisions in our subcommittee mark will authorize funding for our military's most crucial capabilities. our decisions were informed by hearings that addressed several critical issues facing our air and ground forces including force structure, modernization of ground forces, tactical aviation and the f-35 joint strike fighter program. in the end i believe we khaoefd our goal of -- achieved our goal of executing the secretary of defense's vision and to address the scenarios we're most likely to face in the future. we're hedging against other

risks and contingencies also. i'm also very proud that this bill includes an important provision based on legislation that i introduced with senator kelly ayotte last february which is no contracting with the enemy act. mr. president, i had an opportunity to go in a codel to pakistan, afghanistan and met with a lot of the leaders over there. then-general petraeus and others, and had an opportunity to go back as a soldier recently still serving. in speaking with general allen and a lot of the contracting generals, this by far is the most important piece of legislation we can file when it comes to dealing with funding. and after speaking with obviously general petraeus and general allen and all those generals in charge of contracting, i was shocked that we are unable to actually sever contracts once we determine through the new way of paying versus, cash versus electronic in some instances doing contracting with the enemy which transfers, that we're actually in turn are using those funds against our soldiers.

and we have heard many stories of those funds falling into taliban hands and other insurgents' hands and used against us. that, quite frankly, is unacceptable. can you imagine that our own troops would be forced to continue giving money to the enemy because they're unable to terminate a contract? i mean, that makes absolutely no sense. so i was very thankful that the committee chairs recognized, and ranking members recognized that this is a critical part of war-fighting effort. as you can imagine, others i noted have found it to be unacceptable as well. so i want to thank senator ayotte with her leadership and obviously we can fight this disgusting practice and give our troops the power to void any contracts when it's discovered that the contract benefits enemies of the united states. and as general petraeus stated last year, if money is ammunition, we need to make sure it gets into the right hands. and i couldn't agree with that statement more. the committee thaod make some

tough -- had to make tough decisions in light of the very real fiscal realities we're facing today. it's no secret that our military's already shouldering a burden unlike in years past. not only at home but also abroad. in today's fiscal environment in which it's very tough to get any dollars, our men and women in uniform stood up and stand up and have identified efficiencies and savings, and they should be commended. so i want to do that right now. i just want to say, mr. president, any consideration of future cuts that place our nation's military's readiness in jeopardy should receive very serious scrutiny. lastly, mr. president, i want to say that when the time comes, i look forward to supporting and debating the amendment offered by the senators from south carolina and vermont, graham and leahy along with almost 70 other senators who support this amendment. this would give the chief of the national guard bureau a seat at the table of the joint chiefs of staff. this could not be more overdue.

i think that we all can agree that over the past decade the tkpwaurpd, the national guard experienced momentous change in the way it fights, in the way it trains, in the way it equips itself. serving alongside the brothers and sisters in arms and deserve the same respect with the joint chiefs. as a result, the guard today is much different than the guard i grew up with when i joined back in 1979. no longer is the guard considered a strategic reserve. it used to address limited unforeseen emergencies. but rather today's guard serves alongside its active duty counterparts in iraq, afghanistan, haiti and many other strategic locations throughout the world. it serves as the tip of the spear for homeland defense response and disaster relief. they're fighting in many areas obviously overseas and they're coming home with devastating injuries just like everybody else. their families are going through the trauma just like everybody else. and they fought and died in the war on terror. and they represent thousands of

american communities across this great country, mr. president. so i look forward to supporting this amendment when it comes forth. that said, now that the bill is before the full senate, i hope that we'll have an opportunity to conduct meaningful debates, not be shutting off debate, not doing cloture before it's time but allowing to us work like we did recently when we passed the 3% withholding, a bill i sponsored, and also the hire a hero veterans act which i also sponsored. those passed, as you remember, overwhelmingly with i don't think any dissenting votes. i like my colleagues have offered several amendments which i feel are relevant to protecting and providing the tools and resources for our men and women that are serving. aeupbd look forward to work -- and i look forward to working with the chairman and ranking member to have them considered appropriately. thank you, mr. chairman. a senator: mr. president? mr. brown: i thank the president and yield the floor and suggest the absence of a quorum. i'm sorry.

i yield the floor, mr. president. the presiding officer: the senator from south carolina. mr. graham: thank you, mr. president. i rise today in support of the leahy-graham amendment that hopefully we'll vote on here soon. hopefully soon. the amendment is pretty simple. it says that the congress has decided in its wisdom to make the chief of the national guard bureau a member of the joint staff. in 1947 we reorganized our defense department and created the modern department of defense, the joint chiefs with a chairman which will provide military advice to our -- to the commander in chief, the president of the united states. the chairman is the person responsible for advising the president. but the joint chiefs are made up of the army, navy, air force, marine corps, and with this

legislation, the chief of the national guard bureau will become a member. nothing more, nothing less. it doesn't provide any power to the chief of the national guard bureau in terms of commanding troops. it doesn't interfere in the relationship between the active forces, the guard or the reserves. it simply states that now is the time for the national guard, the citizen soldier to have a voice on the joint chiefs. and the reason i believe it's important, after 9/11, everything about the national guard and our country's needs have changed. the national guard is the front-line soldier, airman when it comes to natural disasters, when our homeland is hit by natural disaster, they can be called up federally or at the state level to provide assistance to our citizens. and we've seen the effects of natural disasters. therethere can be a lot of lossf

life and property. that's a unique duty. in the last hurricane that came through in the northeast, the chief of the national guard bureau said that no one from the white house called him other than midlevel operative, and he never really interacted with the joint chiefs at all about the needs and capability of the guard. general dempsey, the new chairman of the joint chiefs, has invited general mckinley, the chief of the national guard bureau to be an ad hoc member. that's great. i asked him if he fell out of favor could you kick him out of the room, and the answer is yes. i think congress needs to make a decision here about the role of the citizen-soldier. if you believe as i do they're indispensable to fighting the war on terror to have leading missions when it comes to homeland security post-9/11, that their voice needs to be heard. the active-duty forces needs to have the chief of the national guard bureau in that room advising them about the capability and readiness of the

national guard, their dual status capabilities, what they can do at the state level and federal level. i guess i can boil it down to this. to me, it was a national shame and disgrace to deploy national guard troops after 9/11 without adequate body boomer or equipment -- body armor or equipment. this will make it very hard for that to happen again because the chief of the national guard bureau will be in the room with his counterparts talking about the needs of this force and hopefully the coordination and collaboration through this new change will allow the force to be ready, deployable and will never go back to that time period in our history where the guard and reserve was called up without adequate equipment, body armor, ready to go to war. this is a change that i think makes sense post-9/11. it doesn't interfere with the day-to-day operations of the military. doesn't confer any power on the

national guard they don't already have. it's just one more voice at a table at a time when i think that voice needs to be heard. the world has changed. our nation's defense needs have changed post-9/11. and we have 67 cosponsors, and i'm very proud of the fact that this is one of the most bipartisan pieces of legislation i've ever been involved with. senator leahy's been a great partner. my cochairman of the guard caucus. i look forward to having a vote. senator mccain and levin have done a great job managing this bill. if you've got amendments, please work with these two gentlemen. we don't want this congress to go down in history as being the first congress in 51 years that could not pass a defense authorization bill. we've got enough things going against us already as a congress; we don't want to add that to the list. senator leahy and myself are willing to do this by voice vote, whatever the body would like. senator reid, my good friend -- senator reed, my good friend

from rhode island has a second legislation which -- second amendment which takes our legislation and makes a different purpose of it. there is a reporting requirement that just, quite frankly, misses the mark. senator webb, who argued years ago that the marine corps needs to be a member of the joint chiefs and everybody thought the navy would have two votes and they fought passionately against it, and it's worked out pretty well. all the problems of making the marine corps a member of the joint chiefs haven't panned out. goldwater nickels was fought by everybody except the chairman of the joint chiefs when it was introduced. change comes hard to the pentagon. this is a change that i think makes common sense. i would say after 9/11, our citizen-soldier deserves this recognition. this would be a great step forward in making sure t