flood, and with the innovative ways of addressing that it was a relatively small group of people from new haven and headquarters across the country and some internationally that were able to undertake that. and once you develop, as you would know as a prosecutor, once you develop a template for doing these kinds of cases, it's easier the next time around. >> very good. i see that senator coons has returned from the vote that is going on right now on the senate floor, and i recognize him. >> thank you, senator whitehouse. the senate is voting now on an amendment to the united states constitution, and our chairman is about to speak. so, please, forgive the interruption, if you would, in this hearing. director mueller, thank you for your service and for your testimony here today and for your willingness to continue in a leadership role at the fbi. ..

the region effectiveness of your multi-agency task force is, given what i presume it must be the steadily decreasing availability of local law enforcement partners given the budgetary pressures, local law-enforcement currently face. >> any number of, let me start by saying my belief is that when most effective when we're working in task force, joint investigations. bring together expertise from a

variety of different places enhances your capability. i work here in u.s. attorney's office. they had a cold case squad working with homicide detectives and homicide detectives were some of the best investigators i've ever seen. fbi broad capabilities that state and local did not have and worked exceptionally well. that in my mind has been a model. out of that has, as i think i've said similar remarks, over 150 state and local task forces relating to violent crime and drugs, gangs in particular. we had i think 34, 35 joint terrorist task force in 2001. we are now up around 100. we have safe trails task force is in indian country. and we, now around the country have, started cyber task forces.

we have regional forensics labs, which relate to the handling of cyber material, forensics aspect of it. and so we have developed these over a substantial period of time. when it comes to cyber in particular, we are at the threshold of a developing of an approach to cyber crime across the country. and i say that because in the past, the state and local law enforcement has not been able to develop their capability in this serving as fast as brass we have and looked to us, look to secret service and look to others who have a much of the more important work. cyber, the impact of the cyber arena is such that any future the federal authorities won't be able to do it alone. we are going to have to continue to develop the task force structure and state and local law enforcement develop the

capabilities to address cyber in the same way that state and local law enforcement is developed it in a variety of areas in the past. i will tell you that when i visit offices, when we have them, have an exchange about what's happening in particular offices around the country, one question we ask is facing state and local law enforcement officers leaving task force because of the budget constraint? very rarely is that happen. i do believe that state and local law enforcement appreciate the opportunity to participate at that level and find that participate in these task forces leverages the capabilities, and it's not just having a person on a task force, but they can be more effective as a state and local department with having persons on the task force. >> that's a testament to the value about state and local law enforcement finds in partnering with the fbi because of your superior intelligence and

specialized units capabilities, international information sharing. you refer to cybercrime something where both very concerned about as our member of my colleagues. there's been reports suggesting that cybercrime has exploded in the last decade, that it is going a dramatic pace and it has consequences not just for individuals and for harm to them, but also brought harm to our economy. in fact, i think it was the executive assistant director for the fbi that described it as an existential threat to the united states. and i'm wondering, i know you and senator whitehouse just had an exchange about this, but what the you are resource effectively in terms of the number of agencies, training. i knew you very difficult choices to make. many different areas, a challenge in your service. if i understand right there's about a thousand advanced agent, but nearly five that many dedicated to the war on drugs. there have been some studies have suggested that at the state and local double we don't have enough professionals, law

enforcement officers trained to the right level. how do you feel we are doing at staffing and training in the fbi to meet the level of threat, and what else could we and the congress be doing to support you in it ever? >> in the wake of september 11 we knew we had to prioritize. i moved in the wake of september 11, i'm in 2008 from the criminal side to national security, particularly counterterrorism. approximate 1500 were in the drug program. another 500 were doing smaller white collar criminal cases. but we had to prioritize. we have doubled the number of agents, almost double the number of agents that are doing cyber work at this juncture. and we have a number specialist in addition to agents who do the forensics and then work on it. we do, we do, and our drug cases right in the context of close enough, and joint task force arena.

we rarely at this point in time to any individual drug cases such as we did beforehand. do we need additional resources? just. is the number one request i made each year the last several years where we took care of counterterrorism to a certain extent, request for more agents in this arena? it is. has congress given us some? yes. in any one of these come is it enough? probably not. part of it is also our prioritization. our reorganization so that we can address these cases more efficiently. and it goes to something i was saying to senator whitehouse and that is around the country will have this area of expertise and where in the past is important of it localized on local cases. that expertise has to be utilized to address cyber cases where ever that may arise because often in the outset of any incursion you don't know where the home is. consequently we as an or decision have to adapt as well as getting additional resources but i doubt our structure and

our organization to be more efficient in handling these cases. >> how does the fbi differentiate between a criminal cyberthreat and one that implicates the national security, and that in implicates other non-law-enforcement but more military oriented assets in the cyber field? >> well, we established a national cyber investigative joint task force. it might be worthwhile for you to visit if you have not, but it has come ourselves and other relevant agencies in this arena. intelligence agencies as well as law enforcement agencies. and so in conjunction with nsa, for instance, and others, once an intrusion, substantial intrusion is identified it will be looked at and the beginning work forensically will be done by a number of contributing agencies who have the expertise. without putting it into a particular cubbyhole at the outset you don't know whether it's, the person is a foreign

state or an organized crime group, organized crime group operating at the behest of a state, or a high school student in a bedroom down the block. so we treat them each with the same at the outset, same approach to dissect it and try to identify it. once you get an identification you can make a decision okay, this is domestic, a criminal case, handled domestically, no, it's a national secret if it did ought to be handled by our military in some way, shape, or form. and then allocate or didn't tag it with okay, how are you going to resolve this, how you going to disrupt this threat? >> that exact process, that interface, that decision will enter to the process is of great interest and concern to me. given your exchange with senator session and senator feinstein previously. in the context where in the

national defense authorization act a number of us has raise real concerns about the possibility of uncertainty, i would agree with you, i take very seriously your written input to the senate that you have real concerns about the possibility in the short run and the long run that the military and law enforcement will begin having an unresolved and unclear joint role in investigations, and apprehension come in the early stages of trying to encourage cooperation. and that in a lack of a resolution of their there's both a threat of civil liberties and the possibility of missing vital opportunities for us to advance our national security. in the national security context and the characters in context, it implicates constitutional liberties, civil liberties, and our national security. and i think that's true both in cyber and in the development the very early stages of potential counterterrorism cases within the united states. speak if he would about how you would encourage to resolve some of these longer-term issues.

there was no specific hearing for the detention provisions of the nda a bigger number of us who voted to pull those provisions out of the defense authorization act to have a brief period where we would have focused hearings. input but a concern me deeply that leaders and our law enforcement, and counterterrorism, national security committees and the current administration oppose the language in that bill. without having the benefit of hearing fourfold element of this intersection between security and liberty, i was gravely concerned about are moving forward this language. how would you advise us to do with this in a way that doesn't deprive law enforcement of critical tools in the fight against both cybercrime and tear? >> i would hesitate to try to advise, congress this week. what i try to do is express the concerns i have with the language that has been presented. and again, it focuses on a part

of it has been resolved in terms of our ongoing authorities, for which i'm grateful. the other level of concern relates to the uncertainty of what's going to happen at the time of arrest and what is going to have in terms of investigations down the road isn't going to go military, is going to go article iii? and the statute is still unclear in terms of allocating that now, i know the argument on the other side is that will be cleared up by procedures. and that will be developed by the president, and the president has the waiver of authority. given the statute the wait is now it does not give me a clear path to certain as to what is going to happen, when a wrestler made any particular case, and the facts are great as they often are at that point, and the possibility looms we will lose opportunities to obtain cooperation from the persons that in the past we've been very -- fairly successful in getting.

>> i see it is time for me to conclude my question. i want to congratulate you in the agency for being a very successful partner in the war on terror and the effort to isolate, identify and prosecute outdoor engage domestic efforts at terrorism. i want to thank you for your efforts in combating cyber crime, any particular some of the issues that senator kohl raised about tasha a real interesting thing to me and i would like to note i share senator franken's concerns about some of the un-yet known private implications on the software on her cell phone. thank you for testimony today. >> senator blumenthal. >> thank you, mr. chairman. and thank you, director, for your public service, not only in their present role but throughout your career as a prosecutor and as a member of our military. and thank you for being so forthright in your interest today, difficult there's a question. i want to come back to cyber but

even different context. i am very concerned about cyber attacks on this country, which general petraeus has said will be our next 9/11, and your very vividly and graphically described what he viewed as a threat. that the threat to women and children on the internet i think is equally troubling. and i proposed a bill called the internet and abuse act which would be a companion to the reauthorization of the violence against women act, which focuses stalking, intimidation, harassment, which can lead to physical violence when it occurs on the internet, lead to physical violence than in the real world. and i would like to get from you some sense of what you do as the perils and the dangers on the internet to children and women, and what the fbi is doing to

combat them. >> we have a number of programs to address that. one program we've had for years is innocent images program that i think you're probably familiar with from your time as attorney general in connecticut. in which we have, under cover on the internet, to identify stockers as related to children. the threat that you are to go to women and children on the internet is growing daily. and the ubiquitous nature of the internet is such that it is very difficult to address, and educate persons because a number of people, including occasion myself are baffled by what happens when certain things when you on the internet, getting on the internet, and many people i think are baffled by the

privacy, their privacy protocols. and uncertain as to how to utilize them. but our programs are directed at identifying those persons who are luring children into sexual liaisons on the internet. quite obviously beyond that, there are and have been prosecutions. most recent i think in california for persons who are stalking in some sense on the internet, but also others who were driving, particularly in school, driving children to suicide and the like. and so the variety of harm that can come from a views on the is substantial. we have throughout the country over the last several years put together with u.s. attorneys offices, fbi as was state and locals, and i tag teams that

address this together. but there's so much of it out there that you have to prioritize. and begin it is going to be, absent the agree it's going to be huge issue in the future. this particular area, anything that can be done legislatively to enhance the penalties, enhance the certitude of a properly, and deter persons from abuse on internet and will be welcomed spent i'm glad to hear you make that comment because that's exactly the goal of the measure that i propose to enhance the servitude and make penalties more stiffer so that individuals who in effect are aiding and abetting or enticing or luring or harassing on the internet can be held more accountable. and i'm delighted to hear that you would consider supporting that kind of measure. i also want to ask you if i may,

about human trafficking by federal contractors abroad. you may be familiar with this problem where contractors on our bases abroad in effect take advantage of individuals who are recruited from third world countries, more than 100,000 foreign nationals working on our bases abroad, sometimes exploited by our contractors here and again, i've worked with the chairman, and i think senator leahy for his support, to try to target them and criminalize the human trafficking of persons working for contractors abroad under conditions and terms that would not be tolerated in this country. and i'd like to ask you if the fbi is doing anything on the enforcement side with respect to this problem? >> this is an issue i'm not

familiar with. i will go back and see what, if anything, we're doing in that arena. since our presence usually is in embassies, not really on military bases, that falls to the various law enforcement entities in the military, generally, but i will go back and see what, if anything, we're doing and if there is any issue with regard to our jurisdiction to investigate or prosecute in article iii courts. we will get back to you on the spent i appreciate that. and, finally, because my time is almost up, you mentioned the idea in your responses to one of the questions, perhaps from chairman leahy, of making a cybercrime a predicate under the racketeering act. i wonder if you could expand on that thought the? >> only to say i think it's a good idea, that it would enhance enhance, should be a predicate in my mind, and the senses attended to a conviction on racketeering are substantial, and would send the message.

i think too often in the past would look at individuals who are involved in cyber crimes and they may be relatively young individuals, and there may be a perception among some that as a turnstile, yes, you make a car, yes, you may be convicted. but you'll be walking relatively soon and the crime may be worth the time that you spend it that cannot be the message sent to the message should be sent is that if you engage in cybercrime he will go to jail and you will go to jail for a substantial period of time. >> and i think that observation, your support for the kind of measure, illustrates the kind of gaps that may be you are arriving, the internet abuse act that i propose is one measure in trying to address them, but using his hyperactive, so to speak him as a predicate for a racketeering violations i think is very promising avenue that we should explore. thank you. >> thank you.

>> thank you very much, senator blumenthal. senator klobuchar. >> thank you very much, mr. chairman. thank you also, director mueller, for being willing to stay through our votes and everything else, and for your good work, and you have served the fbi so admirably. i think it's quite a testament the president obama asked you to stand for another two years, and you confirmed by a vote 100-super that is usually volleyball resolution for something. excellent work. i want to ask about something that has been on my mind because this committee passed the synthetic drug bills. i have one. senator schumer has one. senator grassley has one big when i have deals with synthetic hallucinogen known as tec. you probably know the house passed similar versions of these bills this past week. in our case in minnesota this young man died, and the problem as you know is a nationwide it is an incredible talk to some of our police chief thomas bush in the rural areas of our state

where they have seen this increase in the cases pickets are difficult if you're in a city like morehead as opposed to minneapolis to try to get experts to prove what this substance was. and in the first half of 2011 cover roughly 6600 calls to poison control, centers across the country. that is 10 times the amount we had in all of 2010. it's clearly a growing issue. senator paul girlie has a hold on these bills in the senate. we are trying to get them done by the end of the year. i had a good talk with them yesterday. i hope we will be able to work this out but i wanted to get your take on this problem. one of my views is we can add these substances to the schedule, but we still have an issue with the way the analog statute works that we may want to make some and then it's going forward. it's something i'm going to work about me take, get your take spent i'm afraid i can't be as much of this press i would want to be because it falls within the purview of my friends at the dea. what you're getting a paper to

the extent that it is coming along the same way that oxycontin are just some of the other drugs have taken off going to watch it and together with state and locals, and friends at dea, not only would we want to watch but also have the statute in place than it was to appropriate address it and send the person who were involved in this kind of trafficking to jail. >> very good. we been working with -- they came out and did, along with others and whether working on a budget want to call it to your attention. i also know that the fbi and the doj have been focusing on health care fraud issue, and minnesota tens of better enforcement and i know there are certain areas known as hotspots where a lot of our health care dollars are getting sucked down two places that are not as good in trying to track these things. could you talk about those efforts and what you have seen with the coordination with the

task force's? >> i know one of the interesting things is the benefit for billing, again, building capacity to address counterterrorism and can bring to bear in the criminal arena. we have found as you point out that their health care hotspots where they will be schemes and plots that are utilized repeat of time by a number of individuals. to their be an enforcement effort that shuts it down often by task force, ourselves working with individuals who are from the ag's office or from state and local, but then it will pop up someplace else. one of the things, the building of an intelligence infrastructure across the country enables us to do is to identify this, educate others and be on the alert for other places where the same hotspots may grow if we don't get in early and address it. and so with accommodation of task forces, identification of those as you call them hot spots

where the activity is particularly high, but also with use of intelligence to identify whether persons are going to move next, we've had some impact. it's still billions of dollars. it's still rampant out there. but we have increased personnel and we have identified and added persons across the board to address health care. and i think we're being effective but they're still more work to be done. >> very good. i know you talked to some of my colleagues about cybersecurity. actually one of the examples you use was a cargo cargo space in minnesota in your testimony. some stolen secrets that they experienced. and i just see this as the next big thing we need to work on. cybersecurity for our country, but also internet fraud and some other things we have seen being sold and picked the internet crime complaint center or a ic-3, is a partnership as you know what the fbi and the national white collar crime center team at addressing internet crime.

in my former job as a prosecutor this was just at the beginning of all this and we would have local police who would be confronted with computers and they would turn them on and everything would vanish. we've gotten a much better that. but there's so much of an issue for local police not having the resources to do with this. so much of an international. could you give us an update on that and where do you think we need to go? >> we have to build resources across the government and better organized to address cyber, identify the lanes in the road, some additional particularity. at home we have to adjust our organizational structure to address cyber. one of the point i do make is with expertise around the country, but you never know where and intrusion is going to arise. much less from whence it came. and consequently we as consequently we atomization have to address cyber crime differently than we address bank

robberies which was localized, and expertise was across the country. he we do have expertise across the country, but often the crime can shift from city to city, county to county, country to country. and we have to be able to address that and that's what we're working on. i will say that today and the number of senators that question me, maybe six, seven, eight, maybe four of them have been focus on cybercrime. four years ago, one wouldn't have. and i venture to say when we meet again as undoubtedly we will do next spring that it will be a number one issue on the agenda. too often in a variety of ways, statutes do not keep up with to tell you, particularly in this day and age. and consequently the work of this committee to provide the tools to address the enhanced technology will be tremendously important. >> thank you very much for the.

we look forward to working with you. thank you. >> i will put in the record, or submit to you for answers, some questions by senator grassley. and if i have other questions i was a bit and for the record. not seeing others and was going on on the floor, we will stand in recess, but with our appreciation to the committee to director mueller. >> thank you, sir. >> [inaudible conversations] [inaudible conversations] [inaudible conversations]

[inaudible conversations] [inaudible conversations]

>> [background sounds] [background sounds] [background sounds] >> the u.s. senate about to gavel in to start the day. general speeches up first for about an hour or so. around 10:30 a.m. lawmakers will take up the judicial nomination with a vote on that possible. also today the senate is expected to work on the fiscal year 2012 defense programs and policy conference report.

we may also see some action on the expiring payroll tax cuts. now live to the senate floor here on c-span2. o merciful god, creator of humanity, you are the father of all. equip our lawmakers for today's tasks. give them wisdom and understanding so that their priorities will reflect your purposes. give them patience and skill so that their words will have persuasive power. give them respect and civility so that your presence will be felt in this chamber. we thank you for your presence in our world and for the official cessation

of hostilities in one area of our planet. guided by your presence, put into the hearts of our lawmakers your own concern for the lost, the lonely, and the least in our nation and world. we pray in your sacred 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., december 15, 2011. to the senate: under the provisions of rule 1, paragraph 3, of the standing rules of the senate, i hereby appoint the honorable tom udall, a senator from the state of new mexico, to perform the duties of the chair. signed: daniel k. inouye, president pro tempore. the presiding officer: the expwroarl is recognized. mr. reid: following leader marks we will be in a period of morning business for an hour, the republicans will control the first half, the majority the final half. following that morning business the senate will be in executive session as the order indicates last night to consider the nomination of morgan christen of alaska to be united states circuit judge for the ninth circuit. there will be 30 minutes of debate on that. at a time to be determined later today there will be a vote on

confirmation of that nomination. we are almost certain that we're going to consider today the department of defense authorization conference report. the issue on that is how much time people need but i think we can work that out very quickly. we've done enough, mr. president, back and forth, the republican leader and me, staking out our positions and our positions are fairly clear to the american people. we're going to try to do during the next few hours is try to work toward resolving some of the outstanding issues. i just had a very comfortable conversation with senator inouye and his chief of staff, charlie hoy, along with my chief of staff, david crohn and i think we've made pretty clear the issues that relate to the omnibus and i think according to senator inouye those issues should be resolvable.

there are a few issues still outstanding but they're really small in number and the house is suggesting moving forward on an individual bill, i think that would be a mistake. i think what we should do is the conference report and i think that's the direction we're headed today. there are a couple issues we have to still work out with the house but i'm in -- white house but i'm in touch with them also. on the prosecute, on the unemployment and the tax extenders and s.g.r. the republican leader and i have been in discussion on that. we hope that we can come up with something that would get us out of here at a reasonable time in the next few days. mr. mcconnell: ,mr. president, i might just echo the remarks of the majority leader. we've been in useful discussions about how to wrap the session up. he has covered the two major issues that remain. we hope to be able to pass a combination of appropriation

bills and we are working hard to resolve the remaining differences on the payroll tax extension and the related issues that are important to both sides and we're confident and optimistic we'll be able to resolve both on a bipartisan basis. mr. reid: would the chair announce the business of the day. the presiding officer: under the previous order the leadership time is reserved. under the previous order the senate will be in a period of morning business for one hour with senators permitted to speak therein for up to ten minutes each. with the time equally divided and controlled between the two leaders or their designees with the republicans controlling the first half and the majority controlling the final half.

a senator: mr. president. the presiding officer: the senator from wyoming is recognized. mr. barrasso: thank you, mr. president. is are we in a quorum call? the presiding officer: the

senate is currently in session. mr. barrasso: thank you. i come to the floor as i have just about every week since the health care law was passed to give a doctor's second opinion about the health care law. i practiced in casper, wyoming as an orthopedic surgeon taking care of families across our state and i have significant concerns about the health care law, the way it was passed, what was included in the law so i come to the floor today because the american people continue to see one news story after another uncovering another error in the health care law, mistake in the health care law, glitch in the health care law. call it what you will, another of the health care's unintended consequences, something that those who voted for it didn't foresee as happening. and tether also seeing -- and they are also seeing another one of the president's promises. i come to the american people as

more and more of these things come forward because hardworking individuals, families across the nation realize this health care law was not passed for someone like them. what people asked for, the reason that we went through the discussion and the debate had to do with the fact that people wanted the care that they need from the doctor that they want at a cost they can afford. and when i say that people all across the country realize that the health care law wasn't passed for someone like them and it was passed for someone else is the reason i come to the floor today, to talk specifically about something called the early retiree reinsurance program which was part of the health care law. well, on friday, friday, december 9 -- a week ago tk-bs the department of health and human services announced its plan to shut down the early retiree reinsurance program at the end of this month. shut it down. now remember that president obama and washington democrats

touted their early retiree program, they touted that as one of the health care law's early -- they called it an early deliverable, something that would be there immediately. the health care law supporters said that this early retiree program would act, they said, as a bridge. they said the program would help employers maintain health insurance coverage for retirees over the age of 55 but not yet eligible for medicare. they said that this program would help people keep their insurance plan until the new health insurance exchanges were up and running in 2014. it's only 2011 now, and they are trying to talk about a bridge to 2014. well, it quickly became clear that the program was really intended to be a bailout, a bailout for companies with a large number of union employees. on october 31 it have this year -- on october 31 of this

year, halloween day, the ranking member of the senate health and education, labor and pensions committee, mike enzi, released a report. and in that halloween day report, the report is one that the senator asked for. it was a report he asked the government accountability office to conduct, specifically looking into the early retiree programs implementation. this is why the report is so scary. the g.a.o., the general accounting office, said that through the end of september 2011, the administration had already spent more than half of the $5 billion allocation. more than half already spent by september of 2011. let's fast forward to december 14, 2011. we're talking about yesterday. the house energy and commerce committee released updated information about the early

retiree program's spending. as of last friday, december 9, 2011, the obama administration, the people in charge of this bill, the people who wanted it, passed it, said it would work, have said, oh, we've now spent over $4.5 billion of the $5 billion budget. 91% of the total early retiree program budget. supposed to last through 2014. 91% of it gone. a budget should have lasted 1,300 days. instead this administration drained the money, taxpayers' money, hard-earned dollars, in just 579 days. the early retiree program has run out of money so fast that it's going to be forceed to close two years early. the administration has said it's no longer go to pay out claims submitted after december 31 of

this year. well, mr. president, the health care law supporters promised the early retiree program would stay in place through january 1 of 2014. what we have here is another broken promise. just a little over a month after the g.a.o. report was released, we are now finding out that this administration spent more than $4.5 billion of the total $5 billion allocation that was supposed to last until 2014. so how did this administration, one that has claimed to be fiscally responsible, one that claims to be accountable, one that claims to be open, how did this administration allow this program to run out of money years ahead of schedule? well, it went broke because certain corporations and union-affiliated organization rushed to grab a taxpayer bailout. it is astonishing that the health care law supporters forced the american taxpayers to

foot the bill to keep private companies and unions health insurance benefit promises to their workers. most americans would be shocked and outraged to learn that the administration did not even require companies to disclose their earnings in order to get the early retiree program funded. let me repeat that. the department of health and human services chose to not mandate that employers prove -- prove -- that they needed funding from the early retiree program before approving the applications and then sending them, those corporations and those union plans taxpayer dollars. the department of health and human services said, no, here's your money. news report indicates small businesses asked the administration to set up a review process to stop the government entities and the unions from consuming all of this early retiree program

money. well, according to the g.a.o. report, the administration refused. they decided to distribute early retiree subsidies on a first come, first-come, first served basis. the g.a.o. findings and the house energy commerce report suggested the obama administration used the early retiree reinsurance program to reward its political allies. these two reports suggest this administration did so by directing most of the program's resources to plans serving unionized auto and government workers. this is based on the administration's own data, based on the administration's data, nearly half of the entire $5 billion program will be spent on just 20 entities. and it is fascinating that the most money of all, the most money of all went to the united auto workers retiree medical

benefits trust. how much did the united auto workers need? well, they took $387 million. over $387 million. administration officials said that the reason that they're giving away the taxpayers' money so fast, they said, is because the program is so popular. mr. president, spending money fast doesn't mean that this government and this administration is spending taxpayer dollars wisely. like so many parts of the health care law, the early retiree program just throws money at a problem rather than trying to fix it. we could have worked together in congress. we could have worked together to help our nation's early retirees have better access to health insurance. we could have done it by enacting meaningful health care reform, health care reform that actually lowers the cost of medical care.

remember, that's what the president promised. that's what he promised in a joint session of congress. he stood up there and ep said under his plan the cost of health insurance would actually go down. he used the term $2,500 per family per year. that's what he promised, that the cost of health insurance for american families would go down by $2,500 a year. what are families at home seeing? well, they continue to see the cost of their health insurance go up, and go up a lot. the president and washington democrats squandered their chance to enact real health care reform, and they did that the moment that they decided to ram a very partisan health care law through congress and ignore the cries of the american people, people at home who say stop, do not do this. now the american people are seeing once again the consequences of those actions by this president and the democrat-controlled congress, seeing that the consequences are

ones that they, the american people, continue to have to pay for. it's time to repeal the president's health care law. we need to get back to patient-centered care, the care people need, the doctors they want at a cost they can afford. at this point i continue to come to the floor, mr. president, because i continue to believe that this health care law is bad for patients. it's bad for providers, the nurses and the doctors who take care of those patients. and it's terrible for the american taxpayers. and that's why as i go home every weekend and talk to people around my home state, they say this wasn't passed for me. this was a law passed for somebody else. it's why seniors on medicare know that $500 billion of the health care law was taken -- under the health care law was taken from medicare not to save medicare but to start a whole new government program for other people. it's why the popularity of this health care law actually

continues to go down. and it is less popular today than it was the day it was passed. so, mr. president, it is time to repeal the president's health care law and replace it with health care proposals to help americans get care they need from a doctor that they want at a cost they can afford. thank you, mr. president. i yield the floor. mr. president, i suggest the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call: d.

the presiding officer: without objection. mr. casey: thank you very much. i rise this morning to talk

about an issue that the american people expect us to take action on, and that's to provide another extension of the payroll tax cut that we put into place in 2010. i want to provide a little bit of background just by way of recent history. we started this debate a number of weeks ago when i proposed legislation which would do the following, and this is a brief summary, but here's what i proposed: that we would not only continue the payroll tax cut for workers but that we would enlarge it, make it a bigger cut. so instead of having a payroll tax cut for employees across the country that would amount to a thousand dollars as we did last year, and that was the right thing to do last year as part of a larger bill, i thought we should go further and cut the payroll tax cut in -- payroll tax in half for workers across america. what we're talking about is

160 million american workers. this isn't some small matter. this is a major issue for the american people and for those 160 million families in america. so that's what i proposed on the employee side instead of cutting it to the level we did last year, we would cut it even more, cut it in half. then i added to that a provision for business so that you would have businesses across the united states, 98% of them, also get their payroll tax obligation cut in half as well. so you've got employees and employers getting a cut of their payroll tax obligations in half. i added a third element which would be a credit, so that if you're a business and you add to your payroll, meaning your hire someone, you increase wages, you -- you somehow increase your -- your payroll, you could get not just a cut in your

payroll tax cut as applies to those new employees or wages, you would have a full cut. in other words, you would say zero, zero payroll tax if you added to your -- to your bottom line. so what you have there is three elements in legislation that would only help 160 million workers but would help most -- most of the businesses in america. and we -- i put in the legislation a provision that says if we're going to do all this, we need to pay for it and we had a whole series of ways to pay for it. and one of those, of course, is the provision to have a surtax on individuals with income above -- that's the key word, "above" -- a million dollars. so if you were making a million dollars that entire million dollars was surtax-free. not a dime of surtax until you

went above it and we added 3.2%. we had a vote on that and it was rejected by the other side so i said okay, let's come together, we'll work with your side, our leadership and take into consideration some of the the -- some of the concerns the other side raised, trying to be reasonable, trying to compromise and come together. so what we did was reduce the surtax substantially to 1.9%, a big cut. a big reduction in the level of the surtax. as i said, i wanted to have a payroll tax cut for businesses across america. the other side didn't want that for whatever reason. the other side did not want to cut payroll taxes for businesses. i don't understand that but they wanted that out of the bill. so that was out of the bill. the surtax was reduced. and we're at the point we were

just talking mostly about expanding and extending, i should say extending first, extending and hopefully expanding the payroll tax cut that we put in place last year for workers, 160 million workers, and if we did it, if we cut it in half, $1,500 in the take-home pay of workers. $1,500 in your that you wouldn't have absent this action. just like last year, $1,000 in your pocket in take-home pay because of the action we took last year. so here we are now, all these days later, several weeks now of debating this, and for whatever reason, the other side doesn't want to have a vote on a measure that the house passed. i don't understand that. i realize that the votes aren't there for this, but i think it's very important that we move forward and come to an agreement on a very fundamental issue for the american people.

they know as well as everyone here knows that this is not in dispute, it is a fact that if we pass a payroll tax cut for 160 million americans, the impact on the economy will be seismic, substantial, pick your word. it will have a huge positive impact on our economy. the corollary to that is that if we don't do this, it will have a very adverse, negative impact on gross domestic product and on jobs. so if you want to reduce the number of jobs created in america in 2012 -- i don't know anyone who wants to do that. but if that's what you want to do, not taking action is a way to do that. we hear phrases in washington all the time, job killer. not passing the payroll tax cut extension for 160 million americans is a job killer, without a doubt.

and anyone who's honest and credible in this town knows that. so this is something the american people want us to do. they're tired of the politics. they're tired of the finger pointing and whining and the politics of washington. they want us to get this done. and we should get it done. if we're doing the right thing, we should get it done today or tomorrow. but we have some people that are playing games. and i would hope that our friends on the other side of the aisle who talk a lot about tax cuts and talk a lot about helping folks through this recession would vote with us on this to cut the payroll tax and end this long debate that doesn't make much sense. we've got a lot of other things to debate. this shouldn't be one of them, because we've been -- we've been working on this for weeks.

again, the american people understand what this is about. this is about take-home pay. this isn't a complicated issue. we're either going to put more money in their pockets or we're not. and it's very, very simple. we believe, on this side of the aisle, but i think the overwhelming majority of americans believe that if workers have more take-home pay in their pocket, the impact on the economy will be very positive. mark zandi did some analysis. he's a great economist who has provided data and information for people on both sides of the aisle for a long time. he's a very credible, capable economist. i asked -- our staff, i should say, asked him to look at the impact on pennsylvania, just one state and i think a big state reflective of the country in a

lot of ways. the basic analysis was if you don't pass the payroll tax cut for workers, those 160 million workers, what happens to pennsylvania. here's the impact in 2012. a lost of -- a loss of almost, just shy of 20,000 jobs, just in pennsylvania. roughly 19,500 jobs. we know in 2011 already, the year is not over, the number of jobs added in pennsylvania was over 50,000 in 2011. i believe we can come to a number like that in 2012. if you don't pass a payroll tax cut for those 160 million workers, in a state like pennsylvania the effect is you lose 20,000 jobs. you just do the math and extrapolate from that to indicate what would happen to the country. so in a state where we had a net gain of more than 50,000 jobs last year, we're talking about

not enacting a policy or not putting in place a tax cut policy which would cut that job gain a little less than half. so instead of creating 50,000 jobs or 60,000 jobs, you'd create 40% less. that doesn't make any sense under anyone's analysis about what we should be doing. so it's critically important that we take steps in the next few days, i hope in the next few hours, to finally pass a payroll tax cut, to also make sure we don't harm the economy as well by failing to take action on unemployment insurance. and again, unemployment insurance is not just for that worker and his or her family to get back on their feet when they lost their job through no fault of their own, but it has a positive impact on the economy. you spend a buck on unemployment insurance, you get back almost two bucks by one estimate. $1.90. but whether it's $1.50 or $.90,

we know if you spend $1 on unemployment insurance, our economy, all of us get in return something much more stphapbl than that -- much more substantial than that buck or dollar that you put in. this isn't about one group benefitting and another that does not. both of these actions -- reducing the payroll tax for workers and unemployment insurance -- will have a substantial impact on everyone. it will help the economy for the american people. in the case of the payroll tax cut, this' a particular -- there's a particular significant group of americans who would be most positively impacted, and that's those 160 million american workers. i believe that most folks out there who are in the holiday shopping season -- maybe they're finished with their shopping,

maybe they're still making purchases -- would like the peace of mind to know maybe they can spend a little bit extra for that gift for a loved one and maybe they can have a little more peace of mind in the next year knowing the economy is still in rough shape, that their own lives, someone who is in anxiety and worry about the future, but this is one measure we can take, one step we can take by passing the payroll tax cut that would give them some peace of mind that moving into 2012 they'll have more dollars in their pocket. i would hope it would be as high as $1,500, but at least we should do what we did last year and make sure that 160 million workers in america have as much as $1,000 on average in their pocket. that would be good for that worker and his or her family and their community. but it would be good for all of

us because it would help us kick start, jump-start economic growth and job creation at a time when we badly need that in the midst of a still very difficult recession. mr. president, we're going to keep on this. we're going to keep pushing and keep making sure that the american people know what's at stake here. for them, those 160 million americans who are waiting for us to take action as well as what's at stake for the larger economy. and if we do this, if we pass the payroll tax cut, if we do the right thing on extending unemployment insurance, we can move into 2012 with some confidence, being aware that it's still very difficult but with some confidence the economy will begin to grow a little more, jobs will be created at a higher rate and we can have some confidence that we can end next year -- 2012 -- with a stronger economy than we may be ending this year. so i would hope our friends

would come across the aisle, so to speak, and work with us to get this done, because the american people are pretty tired of politics and fighting. they want us to come together on a new payroll tax cut for 2012. we can do it. they support it. we should get this done. mr. president, i would yield the floor and note the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call: quorum call:

mr. durbin: mr. president. the presiding officer: the senator from illinois is recognized. mr. durbin: i ask the quorum call be suspended. the presiding officer: without objection. mr. durbin: it's my understanding the majority leader may come to the floor with a unanimous consent request, i ask his permission if and when he does if i'm still speaking he be given the floor and my remarks in the record not reflect that interruption. the presiding officer: without objection. mr. durbin: mr. durbin: mr. pre, we're all in holiday speared at least partially. mr. durbin: back home and around the country to celebrate this once a year holiday occurrence. but we know that we can't leave. we can't leave washington until we get our job done. and the job we have to do is to be mindful of important measures that need to be enacted into law before any of us can leave this town with a clear conscience.

one is the payroll tax. currently, those working, 160 million americans, get a 2% reduction in their payroll tax that they pay every pay period. for the average family in illinois, which makes about $53,000 a year, the amount of that payroll tax deduction has been calculated to be somewhere in the range of $1,600 a year. now, that means about $125 a week for families that are working and enjoying this payroll tax cut. i know what's happening about that money. it's being spent and spent quickly by many working families who have a job but are struggling from paycheck to paycheck. if gasoline prices go up, if utility bills are higher than expected, then the amount that you thought you had put away as a reserve quickly vanishes. and particularly in a holiday season when kids need warm

clothes, when you need to keep the house warm for your family, and when you're trying to put a few things under the christmas tree, that $125 is more than just a small amount, it could mean a lot to a family. it's going to expire january 1, it goes away. as of january 1, these working families will see their paychecks reduced by about $125 a month on average. members of congress, members of the senate may not feel that, but a lot of working families will. we cannot in good conscience leave washington without extending the payroll tax cut. president obama has been talking about this for three months. he's taken his case to the american people, first to congress, then to the american people. he has gone from state to state, community to community, and identified with his payroll tax cut means to individual families and then spoken to america and said it's more than just being compassionate to those who are struggling, it's

an important part of restoring economic growth in america. money that's given in payroll tax cuts to working families is spent and recent -- respent in salaries for those who work at the shops and businesses who provide the goods and services. so the payroll tax cut is more than helpful to individual families, it is good for the overall economy to reduce our unemployment. and that's why we cannot leave without enacting it. now, we've come up with what i consider to be a responsible, thoughtful way to pay for it. we impose a surtax on those making over a million dollars a year. but we exempt the first $1 million in income that they receive. so if you are being paid $20,000 a week -- that's what a millionaire would make each year -- if you're being paid $20,000 a week, your taxes

don't go up. but for the next million dollars you make, there's a surtax of a few percentage points. i think that's reasonable. i think people who are comfortable and well off and frankly, lucky to be living in this country, should be willing to sacrifice a little bit to help working families. we can only find one republican senator who would join us in this effort to put a higher tax on the wealthiest in america to help working families in america, only one. when need more. takes 60 votes in the senate. we have a nominal majority on the democratic side of 53 but it takes 60 votes to do anything of great controversy and this is one issue that is controversial. we can only get one republican senator, senator collins of maine, who would step over and join us in this bipartisan effort. now we're searching for other ways to do this, with the understanding that it has to be done. the payroll tax cut has to be done. but let me tell you there's another part to this that is, i think, equally important, and

that's maintaining unemployment benefits for the millions across america who are out of work. this recession has gone on for a long period of time. people are unemployed for longer periods than they ever imagined. in fact, there are four unemployed people for every available job and as i visit the centers where people are struggling to make their resumes more timely and to respond to classified ads and requests for those who would like to seek employment, i find these people working day in and day out in an effort to try to find a job. they're serious about it. and those who would dismiss them and say as long as they're receiving unemployment benefits they're going to be too lazy to work, don't know what that life is like. they don't understand what these people go through. when i meet with unemployed people who have been out of work for some period of time, one of the first questions i ask is whaps what happened to your health insurance?

the answer overwhelmingly is gone. no insurance because i lost my job and my expwrob brought my insurance protection. that's a relet. when i see the bill that came from the republican side this week, it troubles me. there were two provisions in there that i think are mindless and frankly, don't reflect the reality of what people face in this recession. one of them would authorize the states to give drug tests to people who are unemployed before they can get unemployment benefits. is there a notion somewhere that people are not applying for work because they're addicted to drugs? i haven't seen any evidence of that. and it plays into this thought process that these people aren't really trying because they don't want to try. i don't buy it. i think that that kind of attitude reflects the fact that those who support it and sponsor it never sit down and talk to these people and to their

families and understand what they're going through. there's an element here that i think is -- hasn't been spoken of much but should be. what happens to a family when the major breadwinner is out of work for three months, six months, a year, or more? it turns out that some of the problems may not be anticipated by some members of congress and the senate, and they should be. i received a letter from lanicia hoskin, wife and mother of three from the south side of chicago. she wrote her husband who has a college degree had been out of work for more than two years. his unemployment insurance had run out and mrs. hoskins had just started a second job to support their family. she wrote my body is tired and i often feel weak. at this point i'd like to yield the floor to the majority leader in anticipation of a unanimous consent request. the presiding officer: the majority leader. mr. durbin: first i'd like to

ask unanimous consent, eight different requests for committees to meet, with the approval of the majority and minority leaders and i ask these be agreed to and printed in the record. the presiding officer: without objection. mr. durbin: i ask unanimous consent upon the use or yielding back of time on the christen nomination, senator mccain be recognized for up to 30 minutes as if in morning business following senator mccain's remarks the senate proceed to the conference report to accompany h.r. 1540, the department of defense authorization bill, three hours of debate equally divided between the two leaders or their designees,with that the senate proceed to vote on adoption at a time to be determined by the majority leader in consultation with the plund, and and finally upon disposition of the conference report the senate proceed to consideration of h. con. res. 92 a concurrent

resolution, the motion to reconsider be considered made and laid upon the table. the presiding officer: is there objection? without objection, so ordered. mr. durbin: i'm going to suspend my remarks. i see senator leahy and senator reid on the floor. the presiding officer: the majority leader. mr. reid: i appreciate the courtesy of my friend, the assistant leader. i'll tell all members of the senate we'll probably have a series of votes around 4:00 this afternoon. mr. durbin: i yield to senator leahy from vermont. i'll put my statement in the record. the presiding officer: morning business is closed. under the previous order the senate will proceed to executive session to consider the following nomination which the clerk will report. the clerk: morgan christen of alaska to be united states circuit judge for the ninth circuit. the presiding officer: the senator from vermont. mr. leahy: i see both senators from alaska on the floor. i beg their indulgence. i may continue about five minutes. first on the nomination of

justice morgan christen of alaska, to fill one of the four vacancies on the court of appeals for the ninth circuit, this, the judicial emergency vacancy, this nominee is eminently well qualified and should be -- should be confirmed. the senator murkowski and senator begich have worked very, very hard to get this nominee through and i thank both of them. we'll take a step towards addressing a serious vacancy crisis on the busiest federal appeals court in the country, and i would hope before we adjourn that we could get the other 16 judges that came out of the judiciary committee unanimously, every democrat, every republican voting for them, they're on the calendar, i would hope that before we

adjourn we could get those done. i ask consent my full statement be made part of the record. the presiding officer: without objection. mr. leahy: and, mr. president, again with the indulgence of my colleagues, if i might just for a moment call the attention of my colleagues to several provisions of the defense authorization bill that we're going to consider for final passage today that have a major impact on our defense structure and performance in the years to come. these reforms were previously included in a bill i introduced with senator lindsey graham in may, s. 1025. senator graham and i named it the guide empowrmment two. as co-chair, we are the co-chairs of the senate national guard caucus. i'm pleased to report the most important of these guard empowerment reforms included in the final version of the defense authorization bill. they include a provision that

will make the chief of the national guard bureau a statutory member of the joint chiefs of staff. the joint chiefs are our highest military policy council, has not had as a member since 1978, i remember i voted for that when the comawn dant of the marine corps was added. it's an historic day for all the guard does for our nation. you may is ask now, why so important? our guard has been serving with active duty forces overseas for the last decade. each one of us, they've gone to afghanistan, iraq, has seen our guard serving at the same time these guard troops have been the military first responders here at home, the pentagon hasn't caught up with the institutional changes accompanying this. it is a whole different world for the national guard today than what it was 20 years ago.

in fact, after all the national guard has done over the past 10 years we're hearing rumors the air force is planning cuts to its reserve and guard components. the air force chief of staff announced we're going to get smaller. well, active duty guard and reserve are going to get smaller together. i question the logic of across-the-board cuts. i hope most of us would. that's why we have to have guard chief -- has to be on the joint chiefs of staff to provide a vital voice, sometimes a dissenting voice when it's needed most. when you look at the vermont guard, it demonstrates why these cuts don't make sense. the vermont guard deployed nearly 1,500 troops to afghanistan last year. before that, vermont guard deployed to iraq during one of its most violent periods.

they made unspeakable sacrifices for this country. i know. i went to those funerals of vermont guard members. many of them because we're such a small state, everybody knew the person who had died. a vermont air guard flew more than 100 consecutive days of air missions over new york city and washington after the attacks of september 11 around the clock. we properly manned and trained and equip our state guards, our military leaders will find them the peer of any active duty unit. the vermont guard is one of the first to receive the f-35 joint strike fighter. not only will they find the reserve components ready to serve when called they'll find them a lot less expensive. the defense bill includes several other provisions of our guard empowerment bill. it reen states the three star vice chief of the bureau, ins institutes military offered by

the council of governors, the limited state partnership program, mandates the consideration of guard generals for certain vacant positions of the u.s. northern command and on and on. i think it's going to lay the groundwork for further collaboration between the armed services committee, proarptions and the senate national guard -- appropriations and the senate national guard caucus. it's a superb military organization but it's been trapped in a 20th century pentagon bureaucracy. these reforms help clear away cobwebs. mr. president, it shows what happens when democrats and republicans work together. sometimes it's not noted in the press. a lot gets done around here, when democrats and republicans work together. senator graham and i introduced a bill in may that has more than 70 cosponsors from both parties.

we've accomplished a lot for our guard with this bill, again, by having republicans and democrats work together. there's more to be done but what a great start. i would ask that those statements about the guard be included as in morning business. the presiding officer: without objection. mr. leahy: mr. president, as i said about democrats and republicans working together, i have to applaud the two senators from alaska. because of their hard work, we have this nominee before us, and that's something every one of us should take pride in the way the two have worked together. and i yield the floor. mr. begich: mr. president? the presiding officer: the senator from alaska. mr. begich: mr. president, first i want to comment on the the senator from from vermont that the work he has done in regard to the guard affects us in alaska a great deal, and i want to thank him for all the hard work he's done. in regard to the nomination, the chairman of the committee, judiciary committee, senator leahy, has done an incredible

job bringing so many judges to the floor. i come to the floor today in strong support of the nomination of morgan christen to fill a vacancy on the ninth circuit court of appeals. i have known morgan for years and am continually impressed with the keen legal mind, her outstanding record of public service and her ability to carve a time-out out of her schedule for her extensive volunteer work. for decades, morgan has been recognized by her peers as one of the finest attorneys and judges in alaska. she is currently one of the five justices on our state supreme court. i'm confident she will continue to be fair and an impartial judge as a member of the ninth circuit. justice christen was born and raised in washington state and excelled at the golden gate school of law where she earned her j.d. in 1986. right after graduating from law school, morgan came to my school to clerk for the alaska superior

court. as many people do, once she got a taste of alaska, she decided to stay and raise her family. morgan worked for one of the finest law firms in anchorage and quickly became a partner. in 2001 morgan was appointed to the anchorage superior court by my former boss, governor tony knowles. the superior court san important one in my state. as she always does, morgan did an excellent job. before long she basement presiding judge -- she became the presiding judge at alaska's third district, the busiest court in alaska. as a presiding judge she supervised 40 judicial officers in 13 court locations. when i was mayor of anchorage our city was fighting against youth gangs. anchorage has an unusual judicial system and arrangement with the state.

the city police provided basic law enforcement but the state of alaska runs the court and the corrections system. i worked closely with judge christen across municipal and state lines to crack down on these tkpwafrpbgz and make -- tkpwafrpbgz and make straits safer. in 2009, she was elevated to the highest court in the state, the alaska supreme court. in addition to justice christen's impressive record of public service on alaska state courts, she also finds time to be one of the most prolific volunteers in our state. her volunteer resume is pages long. if there is a volunteer organization in alaska, more than likely morgan has probably worked on them, with them or served on the board. she's a member of the rotary club, the ywca, alaska community foundation, she's been on the board of directors of the united way of alaska.

she's been on the board of directors of big brothers, big sisters of alaska and the rasmussen foundation. in 2005 morgan and her husband jim were recognized as outstanding philanthropists of the year, truly impressive honor. i'm proud to support such an outstanding alaskan to sit on the ninth circuit court of appeals. i want to urge all of my senate colleagues to support her nomination as well. justice christen has bipartisan support. she received unanimous support of every member of the senate judiciary committee in september. in alaska, she was elevated once by a democratic governor and once by a republican governor. the american bar association has recognized her legal capability and rated her as unanimously well-qualified to serve as a judge on the ninth circuit. morgan is one of the greatest legal minds and one of the most caring individuals alaska has to

offer. i'm honored to support her for this position, honored to count her as a friend. i strongly urge every member of this body to confirm her nomination to the ninth circuit. mr. president, i yield the floor. a senator: mr. president? the presiding officer: the senator from alaska. ms. murkowski: i ask unanimous consent that patrick norton and will frye he granted floor privileges for the remainder of the day. the presiding officer: without objection. ms. murkowski: thank you, mr. president. i too rise in support of morgan christen, the nominee that is before us today. and i add my thanks to the chairman of the judiciary committee. in fact, the entire judiciary committee for their work in advancing not only judge christen as she has moved forward through the process, but it was just several weeks ago

that we were pleased to move through this body the nomination of judge sharon gleason. i think it is worthy of note that alaska in the past months now has moved forward two extraordinary women jurists who will work to serve us in an incredible way. if there is any regret that i have, it is that such exceptional women are being taken from our state judiciary system and moved on to other positions. there is a loss there. we're just going to have to work to fill those back benches there. but i am very pleased today to speak in support of morgan christen, a justice of the alaska supreme court, who has been nominated to serve on the ninth circuit u.s. court of appeals. this is really, mr. president, an historic nomination. only two alaskans have had an opportunity to serve on the

ninth circuit, and both of those judges were somewhat predictably men. the first alaskan to serve was robert buceever, appointed by president clinton. he accepted senior status in 1986 and we were saddened when he passed away on october 9 of this past year at the age of 94. the second on the ninth circuit was andrew j. kleinfeld who accepted senior status on june 12 of last year. justice christen has been nominated to fill the vacancy when justice kleinfeld took senior status. that vacancy has existed now for 18 months, which should concern all of us given the heavy workload that faces the ninth circuit. now that said, it often takes a little bit of time to get the best, and there is no doubt in

my mind that when president obama selected morgan christen for the ninth circuit, he selected the best. i've known justice christen for almost 25 years now. we graduated from law school just about the same time. we both clerked for the alaska court system at the same time, and we've kept touch over the years. i've come to know morgan, her husband jim and her family. morgan christen is an experienced, very well-rounded attorney. she's an exceptionally well-rounded jurist with experience on the trial and the appellate bench. she is an individual with a keen intellect and an impeccable reputation for integrity. she is highly regarded across the ideological spectrum in alaska as a judge who keeps politics and ideology off the bench. given the bruising nomination battles that have taken place here in the senate over the past few years, a few of our

colleagues might be inclined to challenge the notion that there is any such thing as a nonideological, nonpolitical judicial nominee. but in response, i would simply note that morgan christen was elected to serve on the alaska superior court by governor tony knowles, a very well-known democrat. she was then later selected to serve on the alaska supreme court by sarah palin, our very well-known republican governor. under alaska's nonpolitical judicial selection process, she was vetted by the alaska judicial council before her selection to the superior court in 2001 and once again prior to standing for retention election in 2004. and justice christen was then vetted for yet a third time before her selection to the alaska supreme court in 2009. and in each case, in each case she secured high marks from alaska's very diverse legal

community. in fact, she was ranked the top candidate for the supreme court position in a scientifically conducted study of alaskan attorneys. i have appreciated justice christen. she has been mindful of the separation of powers throughout her judicial career and mindful of the fact that her personal views have no bearing when it's time to determine the rule of law. i know that we can expect her to continue in that vein when she moves on to the federal bench. morgan christen was educated at the university of washington and golden gate university school of law. she spent portions of her undergraduate years studying in england, switzerland and china. following law school she clerked on the alaska superior court and then entered private practice in the anchorage office of preston, gates and ellis. as a private practice attorney

she represented the state of alaska in the litigation that followed the 1989 exxon valdez oil spill. as a member of the supreme court bench, she served as the presiding judge of the third judicial district there in anchorage, which as was noted is the busiest judicial district in the state of alaska. as a supreme court justice she is deeply engaged in community outreach. nasdaq composite, she won the -- nasdaq composite she won the won the supreme court award in 2008. she holds the light of hope award for children. her volunteerism has been acknowledged and highlighted. not only does she meet the demands of a busy bench practice, but also takes the time with her family to be very engaged in our community. i inquired with some of my friends, former colleagues on the alaska bar about her

reputation in anticipation of my comments today, and one of alaskan stated morgan is extraordinarily talented and is well respected by her peers. she constantly brings justice and fairness to her professional and personal life. friends and colleagues across the country have savored her wild raspberry jam. mr. president, i have yet to have the opportunity to savor her wild raspberry jam. i do a pretty mean raspberry jam myself, so i think we're going to have to trade and see. but i think it's yet one more aspect about this pretty amazing woman that i wanted to share today. another colleague stated very simply that she is a calm, thoughtful and strong woman. good words. in closing, let me simply say that morgan christen is more than just a good judge. she is a good person. justice will be well served by her confirmation to the ninth

circuit u.s. court of appeals. i would urge my colleagues to support this nomination with enthusiasm as i do. i thank you, mr. president. i yield the floor. mr. leahy: mr. president, how much time is remaining on the judgeship? the presiding officer: on the republican side, 7 minutes and 16 seconds. democratic side, 3 minutes and 52 seconds. mr. leahy: i see the senator from arizona, i assume wants to speak on a different subject. i'm going to in just a moment yield back our side's time, and i assume the senator from alaska might want to do the same. i just want to reiterate what i said before about senator murkowski and senator begich, for their support of this woman for the ninth circuit, i appreciate the work they have spent on this. but i also appreciate the -- i appreciate the personal comments

that the senior senator from alaska just made; went back to law school days. i think sometimes we forget that these judicial nominees are real people, and they have a real life and a real part of the community. so i appreciate that she would do that. i would yield back all time thon -- on this side. ms. murkowski: i yield to the senator from arizona. i will yield back the time on the republican side. the presiding officer: all time is yielded back. under the previous order, the senate will resume legislative session. the senator from arizona, senator mccain, is recognized for 30 minutes. mr. mccain: mr. president, shortly we will begin debate on the conference report of the defense authorization bill, the 50th year that the congress of

the united states has authorized the equipment and the programs and all that is necessary to defend this nation's security. so i want to talk today about a very important aspect of our national security, and that is the problem that we are having with out-of-control spending, which is really in its own way endangered our national security as almost any threat that we face. it is unsustainable, it is ununacceptable, and it is a stain on our nation's honor. 50 years ago, on january 17, 1961, dwight david eisenhower bid farewell to the nation as the president of the united states. at the heart of his farewell address was a warning, one keenly insightful in its sense of how in a way new to the

american experience an immense military establishment and a large arms industry had developed in the 20th century postwar period. while acknowledging the need for a strong national defense, president eisenhower called for the american people to understand the grave implications of this new aggregation of political and industrial power. in particular he warned, and i quote, "in the counsels of government we must guard against the acquisition of unwarranted influence whether sought or unsought by the military military-industrial complex. the potential for the disastrous rise of misplaced power exists and will exist, and will persist. the 50th anniversary of president eisenhower's address presents us with a valuable opportunity today to carefully consider have we heeded president eisenhower's admonition?

regrettably and categorically, the answer is no. in fact, the military-industrial complex has become much worse than president eisenhower originally envisioned. it's evolved to capture congress. so the phenomenon should now rightly be called the military-industrial-congressionl complex. on july 16, 2009, in a speech to the economic club of chicago, then-secretary gates described the military-industrial-congressionl complex this way: -- quote -- "first there is the congress which is understandably concerned about protecting jobs in certain states and congressional districts. there's the defense and aerospace industry which has an obvious financial stake in the survival and growth of these programs. and there is the institutional military itself, within the pentagon, and as expressed

through an influential network of retired generals and admirals. one aspect of the military-industrial-congressionl complex i've focused on considerably over the last few years is its role in congressional earmarks, pet projects unwanted by the administration but amounting to billions of dollars annually that frequently take on a life of their own in a way that continues to waste taxpayer resources for years, and sometimes decades. in the military-industrial-congressionl complex, earmarks are the currency of corruption. another manifestation of the military-industrial congressional complex i've called attention to is the revolving door that exists between the pentagon and the defense industry. in 1969, then-senator william proxmire said this about the revolving door in the context of

defense procurement -- quote -- "the easy movement of high ronging military officers into jobs with defense contractors and the reverse movement of top executives in contractors into high pentagon jobs is solid evidence of the military- industrial complex in operation. it is a real threat to the public interest because it increases the chances of abuse. how hard a bargain will officers involved in procurement planning or specifications drive when they are one or two years from retirement and have the example to look at over 2,000 fellow officers doing well on the outside after retirement? probably the most recently publicized example of the revolving door between the department of defense and private industry and the prevalence of the mill stare-industrial congressional complex in the department's planning and procurement

processes is its mentorship program. in its most recent story in a series exposing this program "usa today" reported that the air force allowed a retired general officer who was then serving as an executive in the boeing company to participate as a mentor in a war game involving the aerial refueling tanker that boeing was at the same time competing to build for the air force. under a multibillion-dollar procurement plan. over the last two years, i have exercised keen oversight of the mentorship program, which i understand has been essentially shut down under the weight of newly promulgated public disclosure requirements, in other words, former general and flag officers serving as department mentors prefer to exit the program rather than publicly disclose their corporate affiliations and compensation. i ask that my most recent

investigative letter be made part of the record. the presiding officer: without objection. mr. mccain: the aspect of the complex i'd like to focus on today relates on how the pentagon buys its largest weapons systems. that covers the top 100 or so of the defense department's weapons procurement programs into which taxpayers have invested to date about $1.7 trillion -- t, trillion -- dollars. in particular i'd like to focus on how the military-industrial congressional complex has kept even some of the most poorly performing programs funded. siphoning off precious resources even while they go over budget, face years of schedule delays and fail to deliver promised capability to the war fighter. to be clear, the military-industrial congressional complex does not cause programs to fail but it

does help create poorly conceived programs, programs that are so fundamentally unsound that they are doomed to be poorly executed. and it does help keep them alive long after they should have been ended or restructured. by poorly conceived i mean major programs that are allowed to begin, despite having insufficiently defined retirements --, requirements, unrealistic cost estimates, immature technology, or too much manufacturing and integration risk or unrealistic performance expectations. by poorly executed, i am referring to programs that poorly perform because of among other things, unanticipated design, engineering, manufacturing, or technology problems. these sorts of programs should never have been started to begin with or should have been significantly restructured or

terminated at the end of the day. and yet, through the influence of the military-industrial- congressional complex they are allowed to enter the defense procurement process and to persist, even under guise of a concurrent acquisition strategy and executed under cost plus contracts. specifically, the military-industrial congressional complex helps ensure that poorly conceived programs get on rails and stay there, with production money, when they are supposed to be still in development. and for industry and many of their sponsors in the pentagon and on the hill, that's desirable because it's far more difficult to restructure or terminate a production program even one that's performing poorly, than one that's in development. in the military-industrial congressional complex, if excessive concurrency is a

drug, then the cost-plus contracts used to facilitate it are its delivery vehicles. over the last decade or so, what i've described here has resulted in a massive windfall for industry, but for the taxpayer and the war fighter, it has been an absolute recipe for disaster. with the federal budget deficit having hit $1.3 trillion for the 2011 budget year, and facing the fact that the defense budget will likely not grow to any significant intent the near term, we in congress must be mindful of how the military-industrial congressional complex can negatively affect decisions to buy and keep major weapons systems. so how does the military-industrial congressional complex help create problem programs and keep them going long after they should have been canceled or restructured? a review of some of the problems

with the original air force tanker lease deal is instructive. from that first attempt by the air force to replace its aging airborne tanker aircraft, which started nearly a decade ago, we now know very early in the planning of a major defense acquisition program, senior officials from industry and the relevant services worked with senior members of congress to ensure that the economic and therefore political benefits of the programs will be distributed widely among key congressional states or districts. that ensures long-term political buy-in and support. how much could the military-industrial congressional complex's negative influence ul matterly cost taxpayers? once again, consider the original tanker lease deal as just one example. that deal would have had new aerial refueling aircraft

developed under a cost-plus contract which exposes the taxpayer to and protects the contractor from the negative impacts of cost overruns and schedule delays. once developed, those new tanker aircraft were supposed to be leased. leased. not bought outright from a sole-source contractor, as provided under a multimillion-dollar earmark, stuck in a defense appropriations bill without having been vetted by the administration or reviewed by the relevant congressional oversight committees. that unusual acquisition strategy was based on a case that the air force presented at that time which the deal's congressional sponsors roundly endorsed, that the legacy fleet of tankers needed to be replaced urgently. needless to say, that case was proven false. there can be no doubt that the original tanker lease deal was a classic creation of the

military-industrial congressional complex. when we compare the likely costs of the sole-source tanker lease with the costs of the recently concluded tanker competition which calls for fixed-price development and a purchase under full and open competition, the difference is dramatic. according to recent analysis by the department of defense, the original tanker lease deal would have over the life cycle of the aircraft cost taxpayers billions of dollars more for a less capable airplane. those billions, that could have been lost under the original tanker lease deal, are effectively the cost associated with the military-industrial congressional complex when it is allowed to run unchecked and unchallenged. and they are particularly in the current fiscal environment utterly unsustainable. the lesson of the original

tanker lease deal is that the powerful combination of interests that comprise the military-industrial congressional complex can be strong enough to both give birth to procurement plans that should never have been started in the first place, and nurture programs that have have been killed or fundamentally restructured early on to the grave detriment of the taxpayer and our service men and women. while over the last couple of years former secretary gates ended some of the most poorly performing major programs in the defense enterprise, the situation remains serious. the new national military strategy calls the growing national debt, quote, a significant security risk and as the government accountability office noted in its march, 2011 report sibs since 2008 the total acquisition cost of the pentagon's major defense acquisition programs in its

current portfolio has increased by $135 billion. about half of which is attributed to pure cost growth and the other half due to cuts in the intended number of weapons we plan to buy. it shouldn't come as a surprise that as a result, about half of the pentagon's very largest weapons procurement programs exceed cost peformance goals agreed to by the pentagon, the office of management and budget and the government accountability office. in fact the government accountability office's march report found about one-third of major weapons systems since 1997 have had cost overruns of as much as 50% over their original projections. noting that -- quote -- "the cost of developing and buying weapons have historically been on average 20% to 30% higher,

than pentagon estimates, the congressional budget office recently projected that in addition to health care, higher costs for weapons systems will increase the pentagon budget by about $40 billion over the next five years." congress and current leadership at the department of defense tried to attack these problems, but they have not been successful in changing the prevailing culture yet. for example, after several attempts to change the pentagon's buying approach, which as c.b.o. noted, rarely, if ever, correctly predicts how much a program will likely cost, the weapons system acquisition reform act of 2009 created an office of cost assessment and program evaluation to analyze the cost of new programs and why they fail. it also required the pentagon to keep closer tabs on technology maturity and emphasize testing new weapons before they enter

production. as a result of that act, some newer major programs are not making the mistake of relying on overly optimistic cost estimates provided by the contractor or of staking too much -- taking too much production money too early before critical technologies, design drawings and manufacturing processes of stabilized have matured. even this new law will be judged well only if the pentagon can demonstrate some success with its largest acquisition programs, even those that he went into development before the law's enactment. the f-35 lightning 2 joint strike fighter program is a good example of one such program. last week i spoke at length about this program, so today i'll keep my remarks about it brief. currently the f-35 is the pentagon's largest weapons procurement program.

it was originally intended as a revolutionary affordable solution to the navy, marine corps and air force's tactical aviation needs for the future. the three different versions of the aircraft were each serviced in commonality and designs among those versions, the pentagon sold this program as a fifth generation strike fighter that would, more so than any other major defense procurement program, be cost effectively developed, procured, operated and supported. according to the pentagon, the program -- and i quote -- "was structured from the beginning to be a model of acquisition reform." this has not been the case. when the program was first launched, the pentagon planned to buy over 3,000 joint strike fighters, but the development effort has performed so poorly that we can now only afford to buy 2,457. and given recent delays and

restructuring moves, that number could go down further. to date, the total cost to buy all of the aircraft as intended has grown by about $150 billion to $385 billion. the cost of each joint strike fighter is now 80% over the original baseline estimate, and that is expected to increase. you know, it would be hard to buy a car at 80% over the original sticker price without looking for major trade-offs. currently the joint strike fighter costs an average of about $133 million each, and that's without an engine. we have invested about $56 billion in r&d costs in this project through fiscal year 2010. over the nearly ten-year life of the f-35 program, congress has

authorized and appropriated funds for 135 of these aircraft. but as of today the program has delivered just 20 flying aircraft, with most of them being used for testing. early projection for aircraft just started to be delivered a few months ago, three years late. the main problem with the program has been this. before the pentagon went all in on the f-35 program, it never really understood the risks associated with developing and integrating the f-35's critical technologies and manufacturing each version of the plane, much less how much money and time would be needed to overcome these risks. so ever since the pentagon awarded lockheed martin a contract to develop the joint strike fighter contract in 2001, and despite having signed several follow-on contracts for

blocks of production aircraft, the program has effectively been stuck in development. experts call what the pentagon has been trying to do here -- quote -- "concurrent development." i call it a mess. using a concurrent development strategy to procure high-risk weapons systems that promise generational leaps in capability when one their underlining line is unstable. two, the risk of developing critical technologies and integration are not fully known. and, three, their manufacturing processes are immature, is a very, very bad idea. and trying to do this under cost-plus contracts is a recipe for disaster. in july 2011, the department revealed that the cost for the first three lots of early production aircraft amounting to

28 aircraft bought under cost-plus contracts exceeded by about $1 billion the original estimate of about $7 billion. the department also indicated that the taxpayers' share of this overrun amounted to $771 million. the program's prime contractor would absorb approximately $283 million. moreover, just a few days ago -- and by the way, that program prime contractor, lockheed martin, declared record profits of $3 billion last year. moreover, just a few days ago the department indicated that the cost of the fourth lot of the early production aircraft bought for the first time in the program's history under a first fixed price type contract may be as high as 10% over that contract's $3.46 billion target cost. this is a $350 million overrun with only about 40% of that work

completed to date. this suggests that the costs of the program have still not been contained despite two years of concentrated effort by the pentagon to bring costs under control. just last week the program executive officer of the joint strike fighter program indicated in an interview that the joint strike fighter program needs to slow down production and deliveries of the aircraft. he attributed this to the need to open up the aircraft and install fixes to numerous structural cracks and -- quote -- "hot spots that the program has discovered in the plane over the last year or so." he estimated that the work needed to remedy these cracks could add an additional $3 million to $5 million per aircraft. from these comments, i understand that the overlap between development and production, called concurrency, that persists in the program is still too great to assure

taxpayers that they will not have to continue paying for costly redesigns or retro fits due to discoveries late in production. my frustration, and more importantly, the taxpayers' frustration with the chronic failure of this program to deliver required combat capability on time and on schedule cannot be overstated. this frustration is conveyed well in a provision in the conference report accompanying the fiscal year 2012 national defense authorization act that will require that the sixth lot of early-production aircraft be secured on a firm fixed pwraoeusz. apparently the fixed price contract used for the fourth lot which provides the cost between the target cost and ceiling price be shared between the government and prime contractor is failing to incentivize the contractor to control its costs.

so, tougher measures are warranted. we should all hope they work. another example is the marine corps expeditionary fighting vehicle, the e.f.v. the marine corps and general die die -- dynamics promised it was going to be advanced and operationally effective amphibious assault vehicle ever produced. originally designed to be an over the horizon platform to protect navy ships from mines and shore-based missiles, maximize our flexibility in the enemy's difficult in planning a defense, the e.f.v. was intended to be capable of being launched from a ship up to 25 miles away from shore and speed to a landing zone at 25 knots. once at shore, the e.f.v. would then be able to travel at speeds equal to those of the abrams tank the marines were originally supposed to buy over 1,000 of

these vehicles which were to be initially operable by 2010 at a total cost -- a total cost -- of about $7.3 billion. needless to say things didn't turn out that way. proto types of the e.f.v. were test and were about 1,900 pounds too heavy and blew past original cost estimates for research and development. testing also revealed significant problems in terms of limited visibility, excessive noise, breakdowns in the loading system of the 30 milli meter gun and concerns about the vulnerability to i.e.d. attacks. from its start in 1996 to about 2007, the marine corps and general dynamics said don't worry. but at the end of the day the program's costs rose by 5% to over $-- rose by 55% to over $14 billion and initial capability was pushed back to 2016. at the start of this year the

cost of each e.f.v. was expected to be as much as $23 million and the estimated cost to operate and maintain the vehicle went up with the increase in that price. the commandant and marine corps estimated that the e.f.v. would consume over 90% of the marine corps' total ground combat vehicle budget. against that backdrop, former secretary gates and the commandant called for this program to be terminated. unfortunately, the taxpayers had invested about $3 billion in and the marine corps had waited 15 years for an improved amphibious vehicle that simply became too costly to buy. another example of a legacy acquisition program in trouble is the v-22 osprey. inspired by the failure to rescue hostages from iran in

1980, the v-22 was originally designed to be a revolution in vertical takeoff aircraft. it was intended to improve beyond anything currently in the arsenal the marine corps and our special force's capability to get in, get out and resupply from long ranges at high speeds in hostile landing zones. what we ended up with has been great expectations and enormous costs. since it was first deployed, the marine corps version of the v-22 has had a mission-capable rate in the middle to high 60's range as compared to the latest version of the army's heavy-lift helicopters, the ch-47's which had readiness rates in the high 80's po low 90's. during deployments to afghanistan, in fact, the v-22 engine saw a service life of just above 200 hours, well short of the 500 to 600 hours that the program's managers originally

estimated. that has cost -- that has caused the cost per flying hour to more than double to over $10,000 an hour as compared to about $4,600 per hour for the much older ch-46 it is intended to replace, or about $2,600 per hour for a new modern mh-60 blackhawk helicopter. when it's not being repaired the v-22 performs its missions impressively but the sustainment cost of keeping the v-22 flying is eating up the marine corps' budget and causing aircraft maintainers to work much harder and should be required for a brand-new aircraft. while the v-22 program was supposed to cost just over $39 billion, independent estimates are that it will come in at $56 billion, a 43% increase. mr. president, i ask unanimous consent for ten additional

minutes. the presiding officer: is there objection? so ordered. mr. mccain: the price per aircraft itself has risen by 186% from $42.8 million to $122.5 million. you'll notice this hybrid helicopter-airplane's unit cost is approaching that of the troubled f-35 priced at about $133 million a copy, as i mentioned earlier. the budget health care plan strapped marine corps may have to afford both of them. recently the marine corps conceded that over the last three years, the lifetime cost of operating its v-22 aircraft increased 64% to $121.5 billion. i want to talk about military space procurement for a minute. they're among the most know tourious for chronically performing poor lymph the space-based infrared program is a particularly good example. it's problem has been a problem since its inception in 1996.

five years in the program in it 001 an independent review cited the program as -- quote -- "too immature to enter the program and dubbed development phase and observed that the program was based on faulty and overly optimistic assumptions with respect to, among other things, management stacket and the lack of understanding requirements." that was 2001. it was determined that the total program costs could exceed $2 billion, a 70% increase in costs and here we are today 10 years later and the system has still not achieved its objective. in fact it was just launched for the first time recently on may 7, 2011. original stlimented to cost $2.4 billion, it is now expected to cost nearly $16 billion, seven times the initial estimate. the defense department just reported to congress recently that the next pair of these satellites built by lockheed martin could cost $438 million

more than previously estimated and could be delivered a year late. many of the space programs are facing these same kinds of overruns. in the area of military space prociewrntle the air force advanced early high-frequency satellite is worth mentioning. the system of satellites is supposed to replenish the existing milstar system with more rebust communication abilities for strategic and tactical war fighters. the first was launched in august of 2010, but problems with its thruster delayed it by more than a year. in connection with how -- the connection with how the prime contractor lockheed martin space system has performed on this prarnlg the air force penalized lockheed martin by reducing its award fee under the contract by

$15 million. one space acquisition program is the evolved expendable launch program. the connection with the amendment i offer would enhance congressional oversight largely because of lack of competition and the department's reliance on a sole incumbent provider. the costs may increase by more than 50% over the next 50 years. i don't want to overlook the army. among all services, the army has had the poorest record of bumping billions of dollars into weapons systems that were never deployed. a recent army study indicated that since 1995, almost 40% of research dollars that the army spent did not result in the procurement of any product. the army spent at least $32 billion on development testing and evaluation of 22 weapons programs that were later

canceled. almost a third of its budget for creating new weapons. every year since 1995, the army spent $1 billion on doomed programs. since 2004, canceled army programs have consumed between $3.3 billion and $3.8 billion. this represents an average of 35% to 45% of the army's annual budget for development, testing, and inurnin engineering and facg into the hugely competencive future combat system. this brings us right to the s.c.s. program. to say this program was a failure would not do it justice. the first revision in 1999, f.c.s. was important to be a revolutionary capability, the centerpiece in the army's effort to transform itself into a lighter, more modular and

deployable fighting force. erroneously executed under a type of contract more fitting for small-type program, the f.c.s. was smoafd to develop 18 manned and unmanned ground systems including robots, u. av.'s and vehicles and complicated bay mobile electronic network. the work began on this program in 2000. the army estimated that the first combat units would be equipped by 2011. all the army's ground combat formations would be equipped by 2032. the army has estimated the entire effort would cost about $160 billion. by 2006, the total was pegged at upwards of $300 billion and from there with the assistance of a fundamentally flawed fee structure that was not focused on objective results, f.c.s.'s total costs kept growing. to make a long story short, in

april 2009, then-secretary gates terminated most of the problem -- most of the program and the problem. after the -- i'm very short of time here. i know the army had its problem. the navy's littoral combat ship is another example of a fundamentally flawed acquisition process. originally conceived by former chief of naval operations vern clark as a revolutionary new, affordable class of surface combatant, about the size of a light frigate or a coast guard cutter, it was to be able to conduct shale shallow water and near-shore operations. the first two l.c.s. contracts set the cost at $188 million each. after spiking to over $730 million, the cost is now about $400 million per hull. in december 2010, the pentagon's chief tester gave l.c.s. poor

performance ratings, saying -- quote -- "the l.c.s. is not expected to be survivable in terms of maintaining emission imability in a hostile combat environment." i continue to be very troubled by the navy's decision late last year to set aside then pending competition and award contracts to each of the bidders on this program. the f-22 raptor program, the f-22 was supposed to maintain air superiority in face of the soviet threat during the cold cold war. the f-22 obtained full operational capability 20 years later, well after the soviet union dissolved. when it finally emerged from its extending testing and development phase, the f-22 was recognized a as very capable tactical fighter, probably the best in the worltd for sometime to come. but plagued with developmental and technical issues that caused the cost to go through the roof,

not only was the f-22 20 years in the making, but it has proved so costly that the pentagon could only afford 187 of the planes rather than the 750 that was originally planned to be bought. to make a long story short, the f-22 has not thrown in combat since its inception. the d.d.g. class destroyer was supposed to cost $1.1 billion each. it's now expected to cost $3.5 billion each. the airborne laser effort which had to be canceled, the fantastic story of the vh-71 helicopter replacement program was canceled only after it became more expensive than a full-sized 747. what can we do?

mr. president, i will submit my -- the rest of my statement for the record because i know that it's time for us to get on with the defense authorization bill. we need to have transparency. we need to have accountability. we've got to use competition to encourage industry to produce desired outcomes and better incentivize the acquisition workforce to do more with less. we've got to do a lot of things. we have clearly failed to abide the warning president eisenhower issued in his speech 50 years ago, but i do find some comfort that times of fiscal constraint and austerity can descrive desired change, even in the face of daunting systemic obstacles like the military industrial congressional complex. we must do better. mr. president, i yield the floor and i thank my friend from michigan for his indulgence. the presiding officer: under the previous order, the senate

will proceed to the consideration of the conference report which the clerk will report. the clerk: the committee on conference of the disagreeing votes of the two houses on the amendment of the senate to the bill h.r. 1540 to authorize appropriations for fiscal year 2012 for military activities of the department of defense and so forth and for other purposes having met have agreed that the house recede from its disagreement to the amendment of the senate and agree to the same with an amendment and the senate agree to the same, signed by a majority of the conferees on the part of both houses. the presiding officer: there will be up to three hours of debate equally divided between the leaders and their designees. the senior senator from michigan is recognized. mr. levin: thank you, mr. president. i would yield myself 20 minutes. the presiding officer: so ordered. mr. levin: mr. president, on behalf of the senate armed services committee, i'm pleased to bring to the senate the conference report on h.r. 1540, the national defense authorization act for fiscal year 2012.

this conference report, which was sewned by all 26 senate conferees, contains many, many provisions that are of critical importance to our troops. this will be the 50th consecutive year in which a national defense authorization act has been enacted into law. i want to thank all the members, the staff of the senate armed services committee and especially our subcommittee chairs understand our ranking members for the hard work that they have done to get us to this stage. every year we take on tough issues and we work through them on a bipartisan basis, consistent with the traditions of our committee. this year was a particularly ditch one because odifficult one time line for consideration on the bill in conference. i want to thank my friend senator mccain for his strong support throughout the process and i know both of us want to thank the chairman and ranking member of the house armed

services committee for their commitment to this bill and to the men and women of our armed forces. the conference report that we bring to the floor today authorizes $662 billion for national defense programs. while it authorizes $27 billion less than the president's budget request and $43 billion less than the amount appropriated for fiscal year 2011, i'm confident that this conference report nonetheless provides adequate support for the men and women of the armed forces and their families and provides them with the means they need to accomplish their mission. this conference report contains many important provisions. it will improve the quality of life of our men and women in uniform, provide needed support and assistance to our troops on the battlefield, make the investments that we need to meet the challenges of the 21st century, and provide for needed reforms in the management of the department of defense.

mr. president, i would ask that a list of the more significant provisions be included in the record at the close of my remarks. the presiding officer: without objection, so ordered. mr. levin: probably the most discussed provision in the conference report is the provision relative to military detention for foreign al qaeda terrorists. this provision was written to be doubly sure that there's no interference with civilian interrogations and other law enforcement activities and to ensure that the president has the flexibility that he needs to use the most appropriate tools in each case. the bill as passed in the senate addressed this issue by including language that, first, left it to the president to adopt procedures to determine who is a foreign al qaeda terrorist and therefore subject to presumed military detention; second, required that those procedures not interfere with ongoing intelligence, surveillance, or interrogations by civilian law enforcement; third, left it to the executive

branch to determine whether a military detainee who will be tried is tried by a civilian court or a military court; fourth, gave the executive branch broad waiver authority. the conference report retains that language and adds additional assurances that there will be no interference with civilian interrogations or other law enforcement activities. in particular, the conferees added language which says the following "nothing in this section shall be constrained to affect the existing criminal enforcement and national security authority of the federal bureau of investigation or any other domestic law enforcement agency with respect to a covered person regardless of whether such covered person is held in military custody." it also modifies the waiver language to give the president rather than the secretary of defense the authority to waive the requirements of the provision. under the provision in the conference report, law

enforcement agencies are not restrained in apprehending suspects or cuking any investigations or interrogations if a suspect is apprehended and is in law enforcement custody, the suspect can be investigated and interrogated in accordance with existing procedures. if and when it determination is made that a suspect is a foreign al qaeda terrorist, that person would be slated for transfer to military custody under rules written by the executive branch. again, however, any ongoing interrogations are not to be interrupted and the president also has a waiver authority. if the suspect is transferred to military custody, all existing law enforcement and national security tools remain available to the f.b.i. and other law enforcement agencies, and even if the suspect is held in military custody, it would be up to the attorney general after consulting with the secretary of defense and the director of national intelligence to determine whether the suspect will be tried in federal court

or before a military commission. the bill provides the attorney general with broad discretion to ensure that whatever consultation is conducted does not impede operational judgments that may be needed -- that may need to be made to pursue investigative leads, effect res. or file -- arrests or file charges. the language in the senate bill and in the conference report is intended to preserve the operational flexibility of law enforcement and national security professionals in the executive branch. nothing in the language limits the president as to when he can waive the provision or for whom he can waive it. he's not required to wait for a coverage determination before deciding to waive provisions. but similar he's not precluded from waiving more than one at a time, with potential co-defendants. in short, the language in the

conference report is broad enough to reflect circumstances in which it is in the national security interest of the united states for a president to waive the requirements of the provision with respect to a category of covered persons if he show determines in order to preserve the flexibility of counterterrorism professionals and operators to take expeditious action. now, with the exception of those assurances the detainee provisions in the conference report are largely unchanged from the provisions in the bill that was approved by the senate on a 93-7 vote just two weeks ago. those who say that we have written into law a new authority to detain american citizens until the end of hostilities are wrong. neither the senate bill nor the conference report establishes new authority to detain american citizens or anybody else. the issue of indeaf definite detention arises from the capture of an enemy combatant at

war. according to the law of war, an enemy combatant may be held until the end of hostilities. can an american citizen be held as an enemy combatant? according to the law of war, an enemy combatant may be held until the end of hostilities. but again, can an american citizen be held as an enemy combatant? i believe that if an american citizen joins a foreign army or a hostile force like al qaeda that has declared war and organized a war against us and attacks us, that that person can be captured and detained as an enemy combatant under the law of war. in 2004, the supreme court held in the hamdi case that -- quote -- "there is no bar to this nation's holding one of its own

citizens as an enemy combatant" close quote. the court cited with approval its holding in the quirin case in which an earlier court held that -- quote -- "citizens who associate themselves with the military arm of the enemy government and with its aid, guidance, and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the law of war" -- close quote. but despite that view of mine, which i clearly expressed on the senate floor a couple weeks ago, neither the senate bill nor the conference report takes a position on this issue. both the senate bill and the conference report include the language of the feinstein amendment which we drafted together and passed 99-1.

that amendment leaves the issue to the executive executive branch and the courts by providing the following. "nothing in this section shall be construed to affect existing law or authorities related to the detention of united states citizens, lawful resident aliens of the united states, or any other persons who are captured or arrested in the united states." close quote. now, the more difficult issue for me -- and believe it goes to the heart of the concern of the detention policy -- is the kind of war that we are in with al qaeda. and that issue is when does the detention end? in other words, when are the hostilities over? in this kind of nontraditional war, we are not likely to sign a peace treaty or receive a formal surrender or even reach an agreement on a cease-fire. under this -- under these circumstances, it is appropriate for us to provide

greater procedural rights to enemy detainees than we might in a more traditional war. we have done so in this conference report. the conference report, for instance, requires periodic reviews of detainee cases in accordance with an executive order issued earlier this year to determine whether detainees pose a continuing threat or safely can be released. and under the conference report enemy combatants who will be held in long-term military detention are told for the first time that they will get a military judge and a military lawyer for their status determination. the conference report includes many other important provisions. it includes new sanctions against the financial sector of iran, including the central bank of iran. these sanctions would, among other actions, require

foreign -- foreign financial institutions who choose between maintaining ties with the u.s. financial system or doing business with the central bank of iran. it includes provisions addressing the problem of counterfeit parts that can undermine the performance of military weapons systems and endanger our men and women in uniform. this is one of the most important additional provisions gee in our bill. that's the provisions relative to the counterfeit parts that are flooding our defense system with electronic parts that are counterfeited and come chain from china. we were able to identify approximately 1,800 cases of suspects, spurkts counterfeit electronic parts covering -- suspect counterfeit electric parts covering more than one million individual parts with most of them, again, coming from china. this conference report includes

comprehensive reforms to keep counterfeit electronic parts -- counterfeit parts out of the defense supply chain and provides proper accountability when suspect parts make it through that chain. in particular, the conference report relative to this subject does the following: it clarifies acquisition rules to ensure that the cost of replacement and rework that is required by the use of suspect counterfeit parts is paid by the contractor, not by the taxpayer. it requires the department of defense and department of defense suppliers to purchase electronic parts from manufacturers and their authorized dealers or from trusted, certified suppliers. it requires department of defense officials and department of defense contractors who become aware of counterfeit parts in the supply chain to provide written notification to the government.

it requires the department of defense and its largest contractors to establish systems and procedures to detect and avoid counterfeit parts. it requires the secretary of homeland security to consult with the secretary of defense on the sources of counterfeit electronic parts in the military supply chain, and establish a risk-based program not enhanced inspection of imported electronic parts. it authorizes customs to share information from electronic parts inspected at the border with manufacturers to help determine whether the parts are counterfeit and it strengthens criminal penalties for counterfeiting military goods or services. and we are very grateful for the support of members of this body for that provision.

mr. president, relative to the strengthening of criminal penalties, i want to add our thanks to senator whitehouse for his work on this subject. his provisions relative to additional criminal penalties for counterfeiting military goods are part of this bill and they are very important part of this bill. the conference report requires sound planning -- and this is another provision of this bill. it requires sound planning and justification before we spend more money on troop realignment from okinawa to guam and on tour normalization in korea. those provisions follow detailed oversight that senators webb, mccain and i have conducted. on some other provisions, the conference report requires that the next lot of f-35 aircraft, lot six, and all subsequent aircraft be purchased under fix-price contract with the contractor assuming full

responsibility for any costs above the target cost specified in the contract. our report fences 5% of the money available for the meads until the secretary secretary oe submits a detailed plan to close out the program or pay contract termination costs. the conference report includes senator landrieu's bill to extend the small business innovative research, the intir program for an additional -- sbir program for an additional six years. it has been about six years since we reauthorized this vitally important program which provides a huge benefit to our small businesses so that they can effectively participate in research programs that are funded by the federal government. in the defense -- in the defense arena, s.b.i.r. has

invested in research and technologies that have contributed significantly to the expansion of the industrial base and development of new military capabilities. as to pakistan, the conference report limits to 40% the amount of the pakistan counterinsurgency fund that can be obligated until the secretary of defense provides congress with a strategy on the use of the fund and on enhancing pakistan's efforts to counter the threat of improvised explosive devices, those i.e.d.'s which killed so many of our troops and so many civilians. finally, the department of defense has informed us that it does not need an exempts from -- exemption from section 526 of the energy independence and security act of 2007 because that section does not apply to purchases at market prices from generally available fuel supplies and does not preclude the department from purchasing

any fuel it needs or expects to purchase in the foreseeable future. mr. president, we are in the final stages of withdrawing our combat troops from iraq, but we continue to have almost 100,000 u.s. soldiers, sailors, air men and marines on the ground in afghanistan. while there are issues on which we may disagree, we all know that we must provide our troops the support they need as long as they remain in harm's way. the enactment of this conference report will improve the quality of life for our men and women in uniform, it will give them the tools that they need to remain the most effective fighting force in the world. most important of all, it will send an important message that we as a nation stand behind our troops and we deeply appreciate their service. in conclusion, i would once again like to thank senator mccain, all of our members, majority and minority staff led

by rick debobus and dave morris for their hard work on this bill. we could not have done this without them. i ask unanimous consent, mr. president, that a full list of our majority and minority staff who gave so much of themselves and their families be included in the record at this point. the presiding officer: without objection, so ordered. mr. levin: mr. president, i yield the floor. i note the -- i note the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call: quorum call: