ask that proceedings under the quorum call be suspended and i be recognized. the presiding officer: without objection. the senator from arizona. mr. mccain: madam president, i fully support the conference report on the national defense authorization bill for fiscal year 2012. this is the 50th year that the congress will pass and i am now

confident the bill signed into law by the president of the united states. it is an important piece of legislation and i appreciate the participation of all members as we went through this bill in a relatively short period of time, but there certainly was a lot of participation by almost every member. and i'm most appreciative, of course, to senator levin who i have had the honor of serving with for many, many years. quite often, we have spirited discussion on various issues, but my admiration and appreciation for his leadership is very, very large. he is a -- a man of incredible patience, a quality that some accuse me of being lacking in, i think correctly, but senator levin and his staff and our staff worked very closely together throughout the year as we bring forth this defense

authorization bill. obviously, this bill provides for a defense policy guidance and funding that are vital to our national security, provides the clearest indication to our men and women in uniform that the congress cares about them and their families, a testament to the importance of this legislation, as i mentioned, we have passed a defense authorization bill every year since 1961. let me remind my colleagues of the hard work that went into this bill. the bill is a product of 11 months of legislative effort in the senate, 71 hearings and meetings on the full range of national security priorities. we reported our bill out of the committee with a 26-0 vote, and we debated nearly 40 hours, disposed of 139 amendments, and the bill was overwhelmingly passed by 93-7. after senate passage on

december 1, our staffs have worked around the clock for nine days to put this together. as senator levin mentioned, it authorizes $662.4 billion for national defense, which is $26.6 billion less than the president's request. it authorizes $530 billion for the base budget of the department of defense and goes on. we authorize a 6% increase in funding over last year's request for our special operations forces who play a lead role in counterterrorism operations. we authorize over $2.4 billion to counterimprovise explosive device activities. i.e.d.'s are -- still plague the men and women who are serving in afghanistan. let me also mention some noteworthy provisions in this legislation.

the conference report includes strong, unambiguous language that recognizes that the war on terror extends to us at home, and that we must address it as such. the language that the senate adopted regarding detainees recognizes that we must treat enemy combatants who seek to do us harm as such and that we must be able to gain as much information from such individuals as possible regarding their plans to wage war against our citizens. i want to emphasize without violating the rules of war, without violating the geneva conventions, without engageing in torture or waterboarding or any of the kinds of techniques that has stained america's honor in the 21st century. i strongly believe the detainee provisions in the bill are constitutional and in no way

infringe upon the rights of law-abiding americans. unfortunately, rarely in my time have i seen legislation so consistently misunderstood and misrepresented as these detainee provisions. the hyperbole used by both the left and the right regarding this language is false and misleading. let me be clear -- the language in this bill will not affect any americans engaging in the pursuits of their constitutional rights. the language does recognize that those people who seek to wage war against the united states will be stopped, and we will use all ethical, moral and legal methods to do so. i'm very pleased that the administration has finally recognized that the language we have adopted merits the president's signature and will soon be signed into law. while we have made some technical changes to the detainee provisions, they remain

substantially the same as passed by the senate armed services committee. the congress in strong bipartisan majorities, especially in the committee on armed services, is deeply concerned by the administration's flawed handling of detainees in the fight against terrorism. it was congress that took up this fight on national security issue and drafted all the versions of these provisions and led the negotiations on all of the major compromises. yes, we listened to the administration's concerns, as we should, and we took many of them into account, but unfortunately the administration has fought these provisions every step of the way. they tried to have these provisions stripped from the senate bill as a condition for bringing it to the floor for debate. when that didn't work, they tried to have these provisions dropped from the bill through amendments on the floor. when that didn't work, they urged the conferees to drop

these provisions in conference or at least water them down into nothingness. again and again and again, the administration failed. so for them now to try to claim credit for these provisions flies in the face of the historical record. facts are stubborn things, and when it comes to these detainee provisions, the fact is this -- congress has led and defined the debate, and the administration has finally conceded to that reality. let's establish once again what these detainee provisions do and don't do. they would, among other things, reaffirm the military's existing authority to detain individuals captured in the course of hostilities conducted pursuant to the authorization of the use of military force. the -- quote -- "authority to detain provision" in the conference report confirms that

nothing in this section of the bill should be -- quote -- "construed to affect existing law or authorities relating 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." there could be nothing clearer than that statement. this confirmation of the intent of the bill was inserted as a result of floor debate and negotiations with the senator from california, senator feinstein, to make absolutely clear what chairman levin and i and the members of the committee who have supported this legislation have said throughout, that this provision does not and is not intended to change the existing state of the law with regard to detention of u.s. citizens. this section simply restates the

authority to detain what has already been upheld by the federal courts. we are not expanding or limiting the authority to detain as established by the 2001 authorization for the use of military force. the conference report also includes a provision requiring military detention for foreign al qaeda terrorists who attack the united states, something this administration has been not only hesitant but completely unwilling to even consider. until this legislation highlighted the inconsistency between claiming the authority to kill an al qaeda member with drones overseas but not being willing to hold a captured al qaeda member in military custody in the united states, even in a situation where the al qaeda terrorists have

penetrated our defenses and have carried out or attempted an attack in the united states. the authority to hold al qaeda members in military custody while completely consistent with the law of war that applies to enemy combatants is not a straitjacket but is as flexible as the president desires to make it. while we in congress have given the president a statutory authority to use military custody for al qaeda members as a tool to ensure that we're able to obtain timely, actionable intelligence, the president can exercise a broad national security waiver to this requirement, a broad national security waiver. most importantly, this provision requires military detention explicitly excludes united states senate -- citizens and aliens.

the final compromise authorizes the transfer of any detainee to civilian custody for trial in civilian court and leaves it up to the president to establish procedures for determining how and when persons determined to be subject to military custody would be transferred. the provision adopted in the conference report requires that such determination must not interfere with ongoing intelligence, surveillance, or interrogation operations. all of this flexibility was added to the bill, even before we began going negotiations wite white house. to make it clear, the intent of the senate's provisions was not to tie the president's hands but to give them additional means to defeat the most serious type of threat from al qaeda to our country. the result of these senate modifications to the original form of the provisions ensure

that the executive branch has complete flexibility in how it first determines and then how it applies military custody for al qaeda members who are captured after having attacked the u.s. or planning or attempting such an attack. moreover, after meeting with f.b.i. director robert mueller, the senate conferees added language in conference in response to his concerns about the impact on f.b.i. operations confirming that nothing in this provision may be construed to affect the existing criminal enforcement and national security authorities of the federal bureau of investigation or any other domestic law enforcement agency with regard to a covered person regardless whether such covered person is held in military custody. it is the intent of the senate conferees, in agreement with their house colleagues on a bipartisan basis, that the

f.b.i. continue to execute the full range of its investigative and counterterrorism responsibilities and that any shift to military custody will be an administrative measure that does not limit in any way the f.b.i.'s authority. i acknowledge that these issues were very controversial with some members. these provisions were debated extensively, as thoroughly as any matter i have seen in recent memory. but i believe that we've addressed in a positive way and have been responsive to concerns raised by the administration. indeed, the senate made changes both on the floor and during conference to ensure that the intent of the provisions was fully understood by the administration and others, even before negotiations over the final form of the text began. in many ways, as chairman levin has pointed out in many of his public statements and speeches

on these detainee provisions, rarely has such misinformation, speculation, and outright misrepresentation been greater over what a bill actually does compared to what some from the left and right claim that it does than has been the case with these detainee provisions. whether 2012 campaign politics played a role in the characterization of these provisions or whether this was simply a case of not fully understanding the intent of the authors of these provisions, i will leave to others to decide. i'd like to point out again, i thank my friend from michigan, senator levin, and he has displayed a great deal of courage. regardless of the motivation that may have colored the debate until now, i believe that by any responsible reading, these

provisions will not impair the flexibility of the president, the national security officials in protecting the united states and its citizens. the military custody provision, which has been the focus of much of this debate, provides flexibility to use either a civilian track or a military track for custody and eventual trial and leaves the details of implementation in the hands of the executive branch, as is appropriate to do so. it preserves the current state of the law as it applies to the rights of u.s. citizens and lawful resident aliens. in terms of f.b.i. authority to conduct investigations and interrogations as well as use other instruments of the investigative and criminal process, these provisions preserve all of the f.b.i.'s role and authority under existing law. the conference report also includes virtually unchanged the senate provision requiring a

plan to normalize u.s. defense cooperation with georgia and the sale of defensive weapons. the u.s. defense cooperation with the republic of georgia has been stalled ever since russia invaded that country three years ago. while there's been some slow and minor progress to enable georgia's armed forces to deploy to afghanistan, which they have done in greater numbers than most of our nato allies, precious little has been done to strengthen georgia' georgia's ao defend its government, people, and territory. this provision would require the secretary of defense in consultation with the secretary of state to develop a plan for the normalization of our defense cooperation with georgia, especially the reestablishment of u.s. sales of defensive weapons, which puts the congress on record as demanding a more normal u.s. defense relationship with georgia, particularly on defensive arms sales. the conference report includes a strong and important provision

to sanction the central bank of iran, to curtail iran's ability to buy and sell petroleum through its central bank, and to prevent foreign financial institutions that deal with the central bank of iran from continuing their access to the u.s. financial system. this provision was adopted on the senate floor by a vote of 100-0, and i would say that the attempted assassination of the saudi ambassador here in washington, d.c., had a very positive and forceful effect on this provision being enacted by the senate. it forced financial foreign institutions to make an important choice: first, they want to deal with the u.s. economy or with iran's central bank? the treasury department urged a series of changes to the provision some of which would have narrowed its scope and weakened it. we rejected that course of action and made some changes but kept the provision as the

authors, senator menendez and kirk, intended. the conferees did provide the treasury department the ability to more effectively implement this legislation by imposing strict restrictions on foreign financials that maintain ties to the central bank of iran. the conference report directs the secretary of defense to pause further spending on guam in support of the relocation of 8,500 united states marines from oak into witoak gnaw with a unts and -- from okinawa until congress has had an ability to examine. this pause will allow congress to ensure that the taxpayers' funds invested in our overseas military force posture and base willing afford us the best opportunity to continue our strong alliances in the region

while pursuing new arrangements with emerging partners that support security and economic development. the final agreed-upon provision requires a study to offer views and suggestions from a range of regional experts on current and emerging u.s. national security interests in the pacific and options for the alignment of u.s. -- realignment of u.s. military forces in the region. the conference report would also restrict the use of $33 million in operation and maintenance funds for items on guam that do not directly affect military items. this provision should not be interpreted as a lack of united states himent to realig commitmo realignment. as the president of the united states has stated, we are shift ago lot of our attention to the

pacific region and we understand the importance of the pacific region in the 21st century. finally, the conference report includes a provision to require that the contract for the sixth slot of the low-grade joint strike fighter. the pentagon has failed to incentivize the prime contractor with control costs. so a tougher measure is embodied in this report as warranted. i would have preefortd the original senate position that would have made the fixed price requirement apply to the fifth. i strongly support this provision. the chairman and i are committed to close monitoring of this weapons system. we understand its importance. we also understand that the kind of cost overruns that have characterized this system cannot

be continued. and i'm glad that there are no earmarks in this bill. i am -- unfortunately, it still contains over $1.4 billion in spending that was never requested by the president or by our military and civilian leaders in the pentagon. examples of unrequested funding include, $255 million for additional m-1 tank upgrades the army didn't want in order to keep the m-1 production line hot despite no compelling need to upgrade more tanks at this time. $325 million was added for the army national guard and reserve equipment not requested by the army. $8.5 million for air force r&d program called "the medals affordability initiative" the air force didn't consider a high enough priority to fund. $30 million for an industrial

base innovation fund that the pentagon didn't ask for. $200 million for the rapid innovation program created by congress in last year's defense authorization bill that the pentagon never asked for. and which has about $439 million in funds left over from last year it hasn't figured out how to spend. the bottom line is this: congress will pump over $1.4 billion into things the pentagon never requested and didn't think were a priority. the american taxpayers are not fooled by this exercise and they have long ago lost patience with it. for all the many good things this conference report did, we still fell short of providing only the most essential needs and priorities of the department of defense as identified by our civilian and military leaders. a total of $1.4 billion is real money. it could make an enormous difference to many americans if

properly applied to real priorities. those criticisms aside, as we look forward to the holidays ahead, i want all senators to think about who this report is really for. the men and women of our armed forces who have serverd our nation so bravely and so selflessly during the past ten years of war. we owe it to them to pass this bill and demonstrate our support for them and the burden they carry for all of us and to show in a concrete way that the american people and the congress of the united states stand with them and appreciate what they do for us. passing this bill is really the very least we can do for so many who are willing to give all they have to defend us and our great country. finally again, i want to thank chairman levin and chairman m mcewen and rank member smith for getting through the

conference with rapid and comprehensive and collegial manner. it is an honor to work with chairman levin on such an important cause for the american people and for our men and women serving around the world in the department of defense who risk their lives for us every day. they deserve positive action and your vote on this conference report. i urge my colleagues to vote for the conference report of the fiscal year 2002 national defense authorization bill. mr. levin: madam president? the presiding officer: the senator from michigan. mr. levin: madam president, i spoke at some length before, but i just want to repeat one sentiment that was in the statement, and that has to do with senator mccain and his staff, the way in which he and his staff and our staff worked together is in the finest tradition of this body. our committee has had that reputation. it's a well-earned and well-deserved reputation of being able to work on

a bipartisan basis. senator mccain continues in a great tradition on the republican side, and i would hope that i strive at least to do the same on our side. we've had some great leaders of our committee over the decades, and senator mccain is one of those leaders in that tradition. and i just want to say how much -- what a great pleasure it is to work with him. and i know our staffs work beautifully together. we're grateful to that. the senator is right in pointing out who we're doing this for. it's the men and women in uniform. we couldn't do that without our great staffs. i know he joins us. he has already in a statement in tribute to our staff. mr. mccain: madam president? the presiding officer: the senator from arizona. mr. mccain: could i say to my friend from michigan, i guess many years together, we have seen ups and downs and back and forth. but during our more than a quarter of a century service, we have always seen the bill coming to

fruition and we've carried on in that tradition. i'd like to point out to my colleagues that in a rather drab and dreary land skip of gridlock and acrimony, it's kind of nice to show that every once in a while there's a little ray of sunshine. i hope we've been able to provide it for our colleagues, and i look forward to a unanimous, if not unanimous vote on part of our friends. and i hope that if there are other colleagues that we have who would like to come down and speak on the bill, i know that we have planned a colloquy, i guess, on a provision of the bill concerning depots. and so, hopefully, our colleagues who are very concerned about that issue might come to the floor, arrange to come to the floor so we can dispose of that. i don't know of iran except i think senator

udall. mr. levin: while we're talking about rays of light, let us thank our presiding officer, senator hagan, who is a member of our committee, provided a ray of light, of the many rays on our committee but nonetheless one of the wonderful additions to our committee. i see her presiding there and smiling over this effort that she's an important part of. we want to recognize her contribution as well to the senate committee. mr. mccain: i happen to know for a fact that senator hagan is a strong defender of the men and women who serve in her state, which is a very large military presence. i know that they're very appreciative of her advocacy and service as well. so before maybe we get a little bit too hokey around here, maybe we ought to suggest the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:

the presiding officer: the senator from michigan. mr. levin: madam president, i ask unanimous consent that further proceedings under the quorum call be dispensed with. the presiding officer: without objection. mr. levin: there is a colloquy that senator mccain and i have entered relative to section 1022 which i would ask unanimous consent to be made a part of record at this time. the presiding officer: without objection. mr. levin: i note the absence of a quorum. the presiding officer: the senator from arizona. mr. mccain: madam president, for the benefit of my colleagues, i have kind of an interesting bit of news today. when the demonstrations began in moscow, i tweeted -- i'm a big

believer in tweets -- i said dear vlad, the arab spring is coming to a neighborhood near you. apparently mr. putin was not amused because, according to an associated press article, it says "putin rejects any re-do of fraud-tainted vote." and he was apparently on a program where he answered some questions. aepbd got to harsh -- and he got to harsh comments in his insistence that the december 4 election was valid, will likely fuel anger and may draw bigger crowds in protest later this month. putin also lashed out at u.s. senator john mccain, who goaded him with a twitter post saying the arab spring is coming to a neighborhood near you. i quote mr. putin. he said, "he has the blood of peaceful civilians on his hands,

and he can't live without the kind of disgusting, repulsive scenes like the killing of qadhafi," putin said referring to mccain's role as a combat pilot and prisoner of war in vietnam. he went on to say, "mr. mccain was captured and they kept him not just in prison, but in a pit for several years," he said. "anyone in his place would go nuts." now, i know that my friend from michigan may think there's some veracity to the last sentence that he made. i would mention that in context of the national defense bill, in my view, the reset with russia has not gone as we had hoped. and it's an argument for some, particularly in the missile defense provisions in this bill. and i think that the reason why mr. putin reacted in the way that

he did is that i believe that he has been shaken, as he should have been, by the massive demonstrations that have taken place in moscow and other cities in russia. and it will be very interesting on december 24 to see how large or whether there will be demonstrations concerning a government that in many ways has turned into a kleptocracy and the abuse of human rights, including the case of mr. magnitsky who died in prison and mr. khodorkovsky who was just again sentenced to more time in prison. mr. khodorkovsky and others were described as a death sentence. these are very interesting times in which we live, and the world is a very interesting place. and i think it argues for the united states of america to maintain its defenses as we have in consideration of this bill. mr. levin:

madam president? the presiding officer: the senator from michigan. mr. levin: madam president, i have not seen those remarks of mr. putin, but he, in his last comment that was read by senator mccain, i guess people would go nuts in the setting that senator mccain found himself, the vietnam war, i think he probably perhaps tphoepbl that line is abg -- only in that line is accurate. most people indeed could not have survived that experience. i know that senator mccain does not raise this matter, but those of us who work with him and appreciate all he's done for this country and for this body, i just wish we had a chance to straighten out mr. putin about senator mccain. i don't think we'll have that opportunity, but maybe his own people will do that in a free election someday. the presiding officer: the clerk will call the

roll. quorum call:

pomp i don't quorum call:

a senator: mr. president? the presiding officer: the senator north carolina. a senator: i ask that the quorum call be vitiated. the presiding officer: without objection. a senator: and, mr. president, i also ask consent that all time in a quorum call be divided equally. the presiding officer: without objection. a senator: mr. president, i suggest the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:

quorum call:

mr. levin: mr. president. the presiding officer: the senator from michigan. mr. levin: mr. president, i ask unanimous consent that further proceedings under the quorum call be dispensed with. the presiding officer: without objection. mr. levin: mr. president, i would now ask unanimous consent that the following senators be recognized for up to four minutes each to address the depot provisions in the bill and at the end of their remarks, senator mccain and i be recognized to address the same issue. this is the order we were given. they may want to change it. but senator sessions, senator chambliss, senator inhofe, senator shaheen, senator ayotte,

senator hagan. the presiding officer: is there objection? is there objection? without objection. mr. inhofe: mr. president, let me thank you. the presiding officer: the senator from oklahoma. mr. inhofe: and the chairman of the committee, i appreciate the opportunity to have this colloquy because something has happened that shouldn't have happened, and it happened over on the house side. we had no control over it. while i support and will vote for the fiscal 2012 defense authorization bill, this is the third year in a row that we bypassed the former conference process, and i'm pleased we finished the bill, but this broken process allows for abuse. we have certainly had some abuse that i will just allude to here. if the proper procedure had been followed, some of these problems would not have happened. on december 3, the house armed services committee staff inserted new language into the conference that would impact how d.o.d. maintains its shifts, maintains its aircraft,

maintains its ground vehicles, private and public, impacting thousands of jobs in a number of states. that was december 3. it wasn't until the morning of december 7 that i along with several other senators were shown the new language. that was just six and a half hours, mr. president, before we were to have our first conference, and we were going to be asked to support the new language without full vetting from the concerned members' offices or from the depots, shipyards, arsenals, the shipbuilders council of america, the virginia ship repair association, all of the rest of these stakeholders and those that were concerned. that was november 7. then two days later, on november 9, i along with senators chambliss, sessions, ayotte, collins, hagan and shaheen, sent a letter to chairman levin and chairman mckeon from the house and the ranking members mccain and smith opposing the new house armed services language and

requested that it not be included in the conference. that was december 19. we assumed that they dropped the language, but they didn't. the new language was put in the bill at the insistence of staff, apparently, from all we can determine. when several members of the senate complained that the new language was not in either the house or the senate bill, so it should not have been able to be dropped in, they took the position that this was just a clarification of language that was already in, when, in fact, that isn't the case because the new language is a complete and comprehensive rewrite of depot language contained in the original house bill, stakeholders were not included in drafting of the language, senators were not included, nobody knew, and -- and the problem we had at that point, that was done on december 9, we're all committed to passing the bill out at that time, and the house members, many of them had already signed the conference report. then there is a roll call vote, so they just disappear.

so our choices were to go back and open everything up again, and nobody really wanted to do that. so we had language, mr. president, contained in the senate bill that was dropped out in conference and that language specifically called for d.o.d. to provide their inputs by march 1, 2012, on a recent study on the capability and efficiency of the depots before -- and i family size -- and i emphasize this -- before any change in legislation because the study alone does not provide congress with a comprehensive view. this is what we requested. and i thank the senators levin and mccain for their support of this colloquy, and i wish we had had time to take care of this in conference, but i hope that by doing this, we can slow down the implementation of the new language contained in the bill until the senate has had time to fully vet these changes. and i certainly don't blame chairman mckeon. his staff told him -- because he stated this in the meeting --

his staff told him that the new language was fully vetted, but it was not, and we were not contacted. so the process is wrong, and i have to say, mr. president, this is the first time in my eight years in the house -- on the house armed services committee and my 17 years in the senate that i have seen anything like this happen. i just hope we can delay implementing these changes until we in the senate can be heard. mr. president, that's what this colloquy is all about. mr. chambliss: i ask unanimous consent that john novak be granted floor privileges during the remainder of today's session. the presiding officer: without objection. mr. chambliss: mr. president, i want to thank the chairman for his willingness to enter into this discussion. we had a discussion as senator inhofe said during the conference meeting last week in which it now is apparent that the process through which the depot language was inserted was not proper.

senator levin has been very up-front, straightforward with us about that, and i appreciate his willingness to do this today. i know the chairman has already acknowledged that there are problems, and i appreciate his commitment to not only discuss it today but to revisit these issues as soon as the next senate session convenes and addresses this issue through a truly inclusive process during which all members and stakeholders can express their views. clearly, there was a process problem related to how these provisions wound up in the bill, and i think we can all agree that for issues that are as central to so many members as the definitions of depot maintenance and core, the process needs to be inclusive and extensive and both houses of congress need to be equally involved, and that simply did not happen in this case. specifically related to the substance of the provisions, i'm extremely concerned that the rewrite of 10 u.s.c. 2464 core

statute replaces all references to core logistics functions in the original statute with depot maintenance and repair functions. this basically redefines core to be depot maintenance only, to exclude other logistic functions like supply chain management and product support. this does constitute a very significant change, and i would argue that it is exactly in these areas of logistics functions beyond simple depot maintenance where the government has the greatest interest in protecting their own capabilities, yet the bill defines these activities out of the core definition. this could very easily result in the government's ability to employ and therefore maintain expertise in areas such as program management, supply chain management, product support management atrophy. i have no doubt that private industry applauds this change because they would be the ones

to presumably pick up this work. however, we should not kid ourselves into thinking industry will be cheaper. if the government loses this or any other depot-related capability, they will have an extremely hard time rebuilding that expertise, and this will only incentivize the industry to charge more for their efforts. this is clearly a problem and one of the issues we need to address next year. secondly, the waiver in the 2464 rewrite is much broader than previously and allows for a waiver for military equipment that is not an endearing element of a national defense strategy. perhaps this could make sense at some level if we knew what this meant, but we don't. what an endearing element of a national defense strategy is has never been defined, and hence we will be at the mercy of subjective interpretation of the department of defense. that is not the way it should be, and we need to fix that. the current core waiver in 2464 is much narrower and more

defined. the presumption and philosophy in the current waiver is that work other than work on commercial items will be considered core and only considered not core when it is clear that it no longer needs to be. the committee's rewrite changes that presumption based on new standards which are unclear. in addition to the two specific issues i have raised, there may be other unintended consequences to these changes of which we are unaware. since we have had limited time, as senator inhofe said, to vet them and are just now receiving feedback from some of the stakeholders. during the chairman's remarks in response, i would appreciate his commitment to revisit these issues as soon as we can next year, encourage d.o.d. to go slow in i implementing any chans since there is a good chance we'll make additional changes next year, as well as his commitment to include a legislative package in next year's national defense authorization bill that gets it right.

and again, i thank both senator levin and senator mccain for allowing us to address this issue, and their willingness to cooperate as we move forward next year to clear this matter up. mrs. hagan: mr. president. the presiding officer: the senator from north carolina. mrs. hagan: mr. president, thank you, and i want to thank the chairman and the ranking member for allowing this colloquy to take place. i also want to state that i believe that the senator from oklahoma laid out a little bit of the groundwork of what we're discussing now, and i -- i rise to discuss the depot level maintenance issues associated with the house adopted language in conference. we must avoid doing anything that may upset the existing balance between d.o.d.'s internal depots logistics centers, arsenals and specialty

facilities and the industrial base. the house-adopted provision can disrupt that delicate balance and have unintended consequences. we just don't know who may be impacted. we need time to get this right, and we need to ensure a transparent process in which all stakeholders can make their position known to members of congress. the sensitivity associated with maintenance workload is at an all-time high. disrupting a balance of depot level maintenance comes at a time when our economy is struggling and when d.o.d. is consolidating depot source of repair work for current and emerging weapon systems. additionally, prematurely disrupting the readiness of our weapon systems fleet is not an option, especially with the operational tempo of our military. it's critically important to preserve the capabilities and competencies of d.o.d.'s internal depot level maintenance facilities while also sustaining

the defense industrial base in order to preserve our technological advantages and readiness on the battlefield. both face considerable challenges within a fiscally constrained environment. both the depots and the defense industrial base are reshaping and restructuring their operations in anticipation of this. and as our military says, it's one team, one fight. the research, development and manufacturing communities within d.o.d. and also in our universities, small businesses and large corporations are essential partners in our national security. that being said, we need to acknowledge the fragile nature of d.o.d.'s depot level maintenance facilities and the defense supply chain within a heavily consolidated defense industrial sector. our country simply cannot lose skilled manufacturing, research and development expertise to global competitors. congress needs to do our due

diligence to address the concerns of d.o.d.'s internal base involving maintenance, repair and overhaul of military equipment. at the same time, we need to facilitate public-private partnerships and healthy competition that will be mutual ly beneficial to the department and the industrial base, and i know that my colleagues are concerned about the impact this language may have in their states, and i'd like to highlight fleet readiness center east in north carolina. reducing f.r.c. east workload is not an option. it would negatively impact the quality and cost-effective maintenance and logistic support for navy and marine corps aviation. the operational readiness and availability of deployable navy and marine corps aircraft would be undermined without preserving f.r.c. east capabilities. i certainly understand the incredible pressure that the chairman and the ranking member

were under trying to resolve hundreds of issues in conference over a very short period of time, and i certainly do appreciate their willingness to engage members of the committee and other interested stakeholders in a more comprehensive process so that next -- next year so that we can be sure that we get this right. thank you, mr. president, and i yield the floor to the senator from alabama. the presiding officer: the senator from alabama. mr. sessions: i appreciate the comments of the distinguished senator from north carolina. i believe it is important, having come here 15 years ago and confronted the question of depos and how they operate. i was surprised to learn the intensity of the feelings and the difficulty of the issue. we worked on it for sometime, and for the most part it's been

quiet under senator levin and all, senator warner, we kind of worked out how this thing should be handled. i thought thing were rocking along well and have been very disappointed that the house members have taken the initiative at a point where we were told it was too late to make any changes in the process that alters that understanding, and i'm not comfortable with it. i feel like that i have engaged in these issues, we have a depo in my state, and we should have given it better consideration. i don't believe it's correct, the language as it is. i do believe we need to make changes. so it is a concern that the delicate balance created by the current definition of "core depo maintenance" could be at risk.

we've all worked on this for a number of years. we have a more efficient and productive modden today than we had when i came here because of a lot of hard work and intense effort. so that's a problem for me. another troubling element of this new definition is the potential treatment of commercial items. the notion that perhaps an engine or another major assembly of a major item like a tank or aircraft could be considered a commercial item is not part of our depo corps and not part of our depo corps mission is very problematic and would be contrary to where we've been operating for many years. because of the hasty way this language came into the bill, we really don't know the second and third-level effects of this language. that in itself is another reason to make sure we get the policy right in a very deliberative and

dlab aivcollaborative process. i hope we've solution that will work. chairman levin and senator mccain, the ranking member, i appreciate your willingness to work on the error in the process -- and i believe there was a process error -- and to ensure that due diligence is done as we work to codify the definition of "core depo level maintenance." i look forward to your leadership as we conduct hearings, working sessions and whatever it takes to make sure we get the language right before we get to markup and consideration of the fy 2013 defense authorization act. mr. president, i would also offer excellent comments from senator susan collins for the record and ask consent that it be accepted.

the presiding officer: without objection. mr. sessions: mr. president, i would just conclude by saying, we had some very important issues to deal with in the defense bill. a lot of them were very difficult. under chairman levin's leadership and senator mccain, we either reached an agreement or reached an agreement not to agree and moved the bill forward. i think it's over 50 years now that this bill has moved forward every year. i think it's something to be proud of. the only real controversy that came out of it is this depo matter. and so it sort of went against the way we felt that we should operate, the way that has resulted in settlement of disputed issues in moving the bill forward. and for that reason, i think it is appropriate that we ask that this issue be redealt with next year. i thank the chair and would

yield the floor. a senator: mr. president? the presiding officer: the senator from new hampshire. mrs. shaheen: thank you, mr. president. i came to the floor today to echo the comments and concerns that we've heard in the last few minutes from my colleagues on the armed services committee regarding this house-inserted language on our nation's military depose, arsenals, and shipyards. i want to begin by saying how much i appreciate your assurances, chairman levin, as well as those of ranking member mccain and chairman mcewe nevment and congressman smith in the house that there were no intended changes to the law in this language. i think that's very important for us to say to our constituents so that they are reassured. i also appreciate chairman levin's commitment to examine this issue closely in the coming year to prevent any unintended consequences that this language might have on our nation's

industrial repair facilities, including the por ports por porl shipyard which i think is very important to our military capabilities. now, with that said, i'd have to say that i share the concern that has been expressed about the manner in which this language was inserted ands. and while i understand that the house has been working on this issue for sometime, including holding round table discussions at the national defense university, i believe there's much more that should have been done. on friday, december 9, my staff was made aware that this language from the house could be included in the final ndaa report, a measure that we've all been working on for the past 11 months. so along with six other members of the committee, i signed a letter that very day -- so a week ago tomorrow -- indicating

our concerns and frustration over including such language without adequate senate review or input. despite the concerns expressed in our letter, the language was included. on such an important issue as this, usually we've had a very collaborative, transparent process in our committee on the senate side, anyway, and i appreciate that. i think that's been one of the reasons for the great success of senator levin, rank member mccain in being able to get a bill out year after year that there was consensus agreement on. unfortunately, that didn't happen with respect to this language, and as such, we now face situation where the committee will need to spend a significant amount of time examining the language and its implementation over the next year to ensure that no change results. the reason that we as a nation

maintain the 50/50 rule where all maintenance work is split between the public and private sectors, is to ensure that in times of conflict the federal government will have the critical capabilities necessary to repair our nation's combats equipment. equipment. advance technical repair work like the work done at the portsmouth naval shipyard, requires highly skilled and specialized technicians. any changes to the way we structure workload for these facilities had to be closely examined and should include input from the individual stakeholders who understand this issue best. generations of americans have invested significant resources in our nation's military to ensure our men and women in uniform have the most advanced equipment in the world to keep you safe. and, mr. chairman, i very much appreciate your assurance that we will continue-to-take a close look -- continue to take a close

look at this issue, including holding a hearing next year, if necessary. so thank you very much for your cooperation to work with us, and with that, i'd yield the floor. ms. ayotte: mr. president? the presiding officer: the junior senator from new hampshire. ms. ayotte: thank you, mr. president. i would like to join in the comments of my colleague from new hampshire and the concerns that she has expressed along with my other colleagues that soarch the armed services committee the -- that serve on the armed services committee. but first of all i would like to thank chairman levin and ranking member mccain. we have conducted a tremendous amount of tbhork a short period of time, continuing the long-running, proud tradition of the senate armed services committee of professionalism and bipartisanship in support of our troops and our national

security. this is a bill that we can be proud of. in a time of war, this bill supports the men and women of our armed forces and their families and authorizes the equipment, training, and resources that our service members need to complete their missions. while i'm very proud of this bill and pleased that many of my provisions to reduce wasteful spend and maintain military readiness have been included in the final conference report, i also share the concerns of my colleague from new hampshire, senator shaheen, and other colleagues who serve on the senate armed services committee, both substantively and procedural concerns regarding the depot provisions, sections 321 and 327 that were included by the house in the conference report. when we were informed of this significant language only last week, i joined a bipartisan group of senators, including my

colleague jeanne shaheen, to express our concern and our opposition to including the depot provisions in the final defense bill. as ranking member of the senate armed services readiness subcommittee, which has oversight over depots, shipyards, arsenals, and ammunition plants, i'm troubled that such a significant rewrite of depot statutes was hastily included in the final bill without consulting with key stakeholders and without conducting more complete analysis involving the senate. in the coming years, as we ask the department of defense to do more with less, the role of our depose and shipyards will become even -- despoas and shipyards will -- the role of our depots and shipyards will become even more important. many of my constituents work at depots on a daily basis to sustain the world's best submarine force.

portssmog conducts maintenance on the los angeles and virginia class submarines. in fact, portsmouth has led the way for the entire navy with the first-in-class maintenance capability on the u.s.s. virginia. while i am troubled with the depot prigs, i am encouraged that senator levin and senator mccain are committed to addressing these concerns in the coming months. this process should include and inclue saifnedz thorough investigate of the provisions to ensure that we understand all of the reamifications of what-- --ramifications of what was included by the house. as ranking member of the readiness expheerkts i plan to propose to chairman mccaskill that we hold a hearing on these depot provisions at the earliest opportunity next year. the capability of our depots and shipyards and their role in

sustaining military roadness are too important to hastily adopt such far-reaching provisions. let me conclude by again thanking my colleagues on the senate armed services committee. despite the partisanship that often characterizes washington, it is encouraging to see that bipartisanship continues to prevail in the senate armed services committee. that is largely due to the leadership of chairman levin and ranking member mccain. i'm proud of this bill and i look forward to it becoming law in the coming days. i thank my colleagues. with that, i yield the floor, mr. president. a senator: mr. president? the presiding officer: the senator from arizona. mr. mccain: i ask that major james long, an air force fellow in senator thune's office, be granted privileges of the floor tomorrow. the presiding officer: without objection. mr. mccain: my members of the senate have concern about the process and substance of the

changes made regarding statutes for depot activities in the department of defensen, the protection of a corps of logistics. it has been a very controversial issue for many years as the department's dough poe employees over 70,000 personnel. as we draw down from two wars which has consumed so much in resources and equipment, it will be much concern and debate about the continued workload and jobs at depots, shipyards and arsenals, particularly in light of declining budgets. i agree that this should have included all interested parties. it would have the clear intent of improving the efficiency of the department's industrial activities, i was not and am not in support of moving forward on changes that have not been addressed with all members of the committee. the concerns expressed to us by senator inhofe, senator chambliss, senator collins, senator ayotte and others -- and

senator shaheen and others need to be reviewed in an open and transparent process. as for the substance of the concerns, from what i can tell, there are opinions on the impacts on both sited of the issue. in private industry and from the depots and their workers and union. i am aware that some are concerned that the changes in the conference report will upset the balance currently maintained between public and private performance of these activities which could affect readiness changes to the definition of depot level maintenance and repair have the potential to result in a shift of workload at shipyards. changes should not be construed to restrict competition or to create any incentive to favor the public or the private sector as it relates to acquisition program. the narrowing of the statutes from core logistics to core depot level maintenance could be interpreted as congressional intent to eliminate the identification of core activities in the defense supply

chain, affecting arsenals and ammunition plants. on the other hand, the inclusion of an expansive waiver provided to the secretary of defense to waive core requirements is very unsettling for every depot activity. such a waiver could move significant amounts of depot work to the private sector. revisions to the definitions of -- quote -- "commercial items" to be exempted from core determinations could have an immediate detrimental impact on those depots that work on commercially available items of equipment, such as engines and transmissions of ground combat vehicles. so many depots do this sort of work are concerned about the impact. i agree that we need to fully understand the impacts, real and unintended, from the implementation of these provisions. we will need to work closely with the department of defense to ensure that whatever changes or repeals we make are in the best interests of our military with a priority placed on readiness as well as efficiency of operations and fiscal responsibility. oso i support the chairman and

commit to giving this issue focused attention in the year ahead to ensure the measures taken in this year's bill are the right outcome for the department of defense and the taxpayers. i yield. mr. levin: mr. president? the presiding officer: the senator from michigan. mr. levin: mr. president, i appreciate and i understand the senator's concerns about this issue as they've been expressed here this afternoon. i also very much appreciate their understanding relative to the extremely short period for conference this year where we worked through hundreds of provisions with our house colleagues in just about a week, a process that usually takes a month or more. and while i'm proud of what we were able to accomplish in this bill as a whole, it was probably likely that some language would need more consideration because of the time constraints that we were operating under. and i also, before i continue, want to state my appreciation to the members who spoke here this afternoon as members of the armed services committee. they make major contributions to

this committee. listened carefully to what our colleagues have had to say about the depot may not nens issue. -- maintenance issue. i believe that their concerns are substantive and merit careful consideration from the armed services committee. this is an issue that was brought to our conference in the house bill. the depot maintenance provisions that were approved by the house last may arose out of a congressionally mandated independent review of the statutes, regulations and policies guiding depot maintenance performance and reporting. the house conferees then proposed modifications to their own provisions. based on the results of a series of discussions with stakeholders held throughout the simmer, the national defense -- throughout the summer at the national defense university. we were told that the process of comprehensive, that all stakeholders were invited and that the resulting recommendations were widely accepted by all interested parties. in particular, we understood that the department of defense, private industry and the house depot caucus had reached consensus on the revised house

language. while these statements were made in good faith, it turns out that they were not accurate. a number of key players, including stakeholders in government, private industry and labor, did not participate in the process at national defense university and were apparently unaware of the results. senators with a strong interest in the issue ar were not aware f the modified house language that was presented in our conference until it was too late to consider changes. i'm aware that the depot maintenance issue has long been a sensitive one to our nation and to many of our members and that the precise words in these provisions matter. the existing statutes, regulations and practices have served to sustain both core logistics capabilities and the defense industrial base over the last decade. so any changes need to be fully understood. i understand that there are a number of unanswered questions about the provisions in the conference report that could have significant effects.

for example, first, the new language substitutes the term -- quote -- "core depot level maintenance" for the existing term -- quote -- "core logistics." does this change impact national guard readiness, sustainment may notness sites and other d.o.d. facilities that are not depots? does the change impact requirements for supply chain management and other logistics functions that are not performed by depots? second, the new language changes the wording regarding modifications in the definition of core depot level maintenance. does this plan public-private modifications for updated of programs. 12does it distinguish between upgrades on the one hand and acquisition programs on the other? is this an expansion of core functions that will be required to be performed in the public sector with an adverse impact on the defense industrial base?

third, the new language changes the wording of the exclusion for commercial items. is this a change to the existing exclusion or merely a recodification? will it impact maintenance requirements for commercial derivative aircraft and other major defense systems that are based on commercial technology? fourth, the new language includes a waiver rather than an exemption from core requirements for nuclear aircraft carriers. will the new language result in any change in requirements for the maintenance and modification of nuclear aircraft carriers? fifth, the new language includes the authority to waive core requirements for any weapons system that is -- quote -- "not an enduring element of the national defense strategy," rather than an exclusion for workload that is -- quote -- "no longer required for national defense reasons." does this new language mean something different from the existing language? if so, will it change the balance of work between the

depots and the private sector? i am committed toft armed -- i am committed to have the armed services committee revisit the changes to the depot laws included in this conference report and to give full consideration to the concerns that our members have raised. over the coming months, we will engage with interested members and their staffs to review the language in detail. together we will reach out to interested parties through a process that will include a full committee hearing if we determine that one is needed. we will ten take action to repeal or modify anything that needs to be repealed or modifies in these provisions during our consideration of next year's national defense authorization act. many of my colleagues heard chairman buck mckeown of the house armed services committee make a similar commitment at our final conference meeting. during the next year while this review process is underway, i join my colleagues in urging the department of defense to proceed with caution in implementing this legislation.

in ti i urge th particular, i ue department to make as little change in possible regarding the status quo with regard to these functions in the next year t. would be unfortunate if the department were to change significant functions from one form of performance to another this year only to be required to change the decision again the year later. our objective has always been and always will be to ensure the nation's depot maintenance system is structured and supported in a manner that efficiently and effectively provides for the readiness of our armed forces and our national security. i know this is a critically important issue and i look forward to working with senators over the next year to take the steps that we have discussed here today. and i thank the presiding officer, and i yield the floor. mr. kyl: mr. president? the presiding officer: the senator from arizona. mr. kyl: thank you, mr. president. i would say to my colleague from colorado, i have maybe 12 or 13 minutes of remarks if my colleague would like notice

procee --would like me to proce. i appreciate that. mr. president, let me speak to some of the provisions of the national defense authorization act, especially concerning nuclear modernization and the implementation of the new start treaty. this is in the context of the omnibus appropriation bills that we will consider later this week which appear to include funding reductions from the president's request for nuclear weapons modernization activities for the year 2012. earlier this year, i introduced the new start implementation act because other senators and i believe that it's necessary that the congress codify the agreement made between the president and congress regarding the commitment to the modernization of our nuclear deterrent. indeed, it's fair to say that the senate support for the ratification of new start was contingent on modernization of the remaining nuclear arsenal. one of the critical features of that legislation was the link between funding of the administration's ten-year nuclear modernization program to

any u.s. nuclear force reductions in a given year. the language that appeared in the house-passed version of the defense bill was good policy because it limited the reductions in warheads at that time united states otherwise would make pursuant to the new start treaty if congress failed to provide the funding each year under the so-called 1251 modernization plan. in other words, warhead reductions were based on adequate funding. the house language would also prohibit reduction of the nuclear stockpile hedge of nondeployed warheads until after we've completed construction of the key nuclear facilities necessary to regain our production capacity. the reason for that, of course, is we have a hedge or a stockpile of these weapons that exist in the event we would need them since we don't have a production capacity right now to replace them. until that capacity is created, probably in about a decade, we

will need to continue to maintain that hedge capability. well, the language that appears in the conference report now before us removes this explicit linkage which i think is very unfortunate. the ndaa conference report addresses these concerns in some ways, though not as strongly as we originally intended. here's what the compromise in the bill provides. first, in any year in which modernization is not fulled funded, the president must report to congress how he intends to address the shortfall and whether as a result of the short fall, it's still in the national interest to remain a party to the new start treaty. for the first time, the president will be compelled to detail his plans for u.s. nuclear force reductions over the next five years which will provide congress an opportunity to evaluate whether these reductions are in the national interest. this second provision is an important addition. third, in any year in which the president seeks russians in the nuclear stock -- reductions in the nuclear stockpile, he must

first seek from the u.s. commander of strategic command a net assessment of ruz whic redu, which puts the commander of stratcom in a difficult position. and the president must freeway congress any changes in the nation's nuclear war plan and provide access to certain members of congress to those plans. these are all important provisions, but without the house language, the possibility remains that we will draw down our warheads under start without adequate funding to ensure our remaining stockpile meets our requirements. and as i said, this quite unfortunate. let's recall why the modern modernization of our nuclear weapon program was necessary. it was painstakingly worked out. first with the agencies, then the national laboratories and then between the administration and senators at the time of the new start treaty, and it

resulted in a ten-year, $200 billion work plan to renovate our national laboratories, to extend the life of our nuclear weapons, to maintain their safety, security and effectiveness of those warheads, and to sustain the modernization of the try yafd ou try yad of or delivery systems, the icbm's, bombers and nuclear submarine force. the plan was updated last november after a very thorough review by the department of defense and department of ener energy, bringing the total ten-year funding figure tw figue to about $213 billion. there was little disagreement at the time about the need to modernize our nuclear facilities or about this amount which represented the costs over the ten-year period. indeed, between fiscal year 2005 and fiscal year 2010, the national nuclear security administration, or nnsa, had lost about 20% of its purchasing power due to funding cuts and

this, without the changes recommended in the 1251 report, would have been devastating to its modernization plan. incredibly, funding for stockpile surveillance activities -- these are the activities which are necessary for the froze annually -- for the president to annually certify the safety and effectiveness of our nuclear warheads and bombs, and decline by 27% during this period of time. in other words, our ability to actually even understand what was going on in those weapons and determine whether or not changes had to be made was being degraded substantially. and the situation was so dire that in february of 2010, vice president biden gave a major address on the subject at the national defense university and penned an op-ed in the "wall street journal" that sphresd -- and i'm quoting -- that stressed -- and i'm quoting now -- the slow but steady decline and support for our nuclear stockpile and infrastructure." and then noting that -- again quote -- "for almost a decade, our laboratories and facilities have been underfunded and undervalued."

and he concluded by observing that, "even in a time of tough budget decisions, these are investments we must make for our security." secretary of defense gates had earlier drawn attention to the neglect of our nuclear weapon complex. 2008, he said -- and i'm quoting -- "to be blunt, there is absolutely no way we can maintain a credible deterrent and reduce the numbers of weapons in our stockpile without either resorting to testing our stockpile or pursuing a modernization program." and, of course, we haven't resumed test, which meant our only alternative was this modernization program which we then all agreed to. now, what's the linkage between modernization and the reductions in warheads called for under the start treaty? well, it's pretty clear. as the president's national security advisor wrote to me in april of 2010, and i quote -- "support for the nuclear complex is fully consistent with and indeed an enabler of the nuclear

reductions we seek to implement ." a direct connection, in other words. so critical was the need to reverse the decline in our nuclear weapon enterprise that the senate included in its resolution of ratification for the new start treaty a condition, number nine, which stated, and i quote -- "the united states is committed to proceeding with a robust stockpile stewardship program and to maintaining and modernizing the nuclear weapon production capacities and capabilities that will ensure the safety, reliability and performance of the united states nuclear arsenal at the new start treaty levels and meet requirements for hedging against possible international developments or technical problems," end of quote. it also stated that if appropriations are set forward, then the president must tell congress how he proposes to remedy the resource shortfall and whether the united states should remain a party to the treaty in light of such funding

shortfalls. and that commitment to modernization was made explicit by the chairman and ranking members of the senate appropriations committee and its energy and water development subcommittee, who wrote to the president on december 6, 2010, to express support for ratification -- and i'm quoting now -- ratification of the new start treaty and full funding for the modernization of our nuclear weapons arsenal, as outlined by your updated report that was mandated by section 12 51 of the defense authorization act for fiscal year 2010, end of quote. despite this commitment, we're now faced with a reduction of some $400 million below the president's $7.6 billion request for nuclear weapon activities. it depends on the outcome of the appropriations process, but based upon the bill that was filed in the house last night, this appears to be the amount of reducks. senior officials from our

national labs, the department of defense and nnsa have all warned that cuts of this magnitude will delay construction activities for critical nuclear processing facilities, postponed critical life extension programs for our nuclear warheads and could jeopardize our ability to certify the nuclear stockpile without testing. in the words of defense secretary panetta, and i'm quoting -- "i think it's tremendously short sighted if they reduce the funds that are absolutely essential for modernization. if we aren't staying ahead of it, we jeopardize the security of this country, so for that reason i certainly would oppose any reductions with regard to the funding for modernization." end of quote. likewise, general cailer, commander of u.s. strategic command, told congress due to the impending nnsa budget cuts, -- quote -- "we have some near-term issues that will impact us in terms of life-extension programs for aging weapons." end of quote.

what are life extension programs? these are the ways in which we can take the nuclear warheads that need working and extend their life by refurbishing them, replacing some of the components and doing some of the other kinds of things that generally the scientists understand are critical to maintain the safety and the surety and the reliability of those weapons over the period of time in which they must -- in which they are needed. now, we all understand, mr. president, that appropriations committees were under immense budget pressures, especially after the budget control act of 2011. full funding for nuclear modernization, though, was a priority, and it was brought about by this nation's pledge, made under the new start treaty, to reduce the levels of u.s. deployed nuclear weapons. so it should have superseded other budgetary considerations. it should have been fully funded. few things are more important than ensuring our nation's nuclear deterrent, to ensure

that it's effective and reliable, especially as those forces are reduced to lower levels by the start treaty arms control agreement. indeed, this was the view of the senate armed services committee which fully funded the president's request or authorized it, i should say, for nuclear modernization. and i will say that senior d.o.d. officials did work to secure adequate funding for the president's ten-year commitment. among other things, of course, the president submitted the budget which requested the full amount of funding called for in the 1251 report, and the department initially transferred some $8.3 billion in its budget authority to the energy department's nnsa for weapons activities. this is over a five-year plan. unfortunately, that's not fully reflected in the fiscal year 2000 energy and water appropriations bills. so in this case, the customer, the defense department, was so concerned that the energy department could do this work that it transferred its own budget authority to accomplish

it, and yet some of that money was drained away for other purposes. some of the $400 million shortfall can possibly be mitigated if the secretary of defense exercises the transfer authority that is going to be granted in this fiscal year 2012 defense authorization bill, to transfer up to $125 million to nnsa for weapon activities. these are -- this is a very small amount of money for four critically top priorities identified by the department of defense, and therefore if it can find the funds, it can utilize the transfer authority that has been granted in this legislation, get that money to the nnsa to do the work that's absolutely critical next year, and i will be working with the department of defense and my colleagues in congress to ensure that this happens. i express my appreciation to the chairman and ranking members of

the committees and the conference committee who saw to it that this language to allow the defense department to transfer these funds was included. but finally, let me just mention what the consequences of the $400 million reduction could mean in the future. first, it could send a message to o.m.b. that congress no longer considers itself bound to the ten-year modernization funding plan. this would be a huge mistake, it would be wrong. but o.m.b. then might in the future direct less funding for nuclear weapons in fiscal year 2013 and following years. that, as i said, would be very, very wrong, but the problem is that any divergence between what was deemed necessary and what was actually appropriated will continue to grow, maybe to the point where it becomes difficult even to certify on an annual basis that the nuclear stockpile is safe, reliable and effective. referring to such reductions,

the administrator tom d'agostino reported to congress on november november 2 -- quote -- "this is the work to ensure these technologies are the ones that allow us to certify the stockpile on an annual basis without underground testing. reduction in these areas will have a direct impact on the president today and the ability to certify the stockpile without underground testing." end of quote. so for those that remain so opposed to underground testing, you can't have it both ways. you can't both oppose underground testing and prevent the department from getting the money that it needs to modernize the stockpile. we have got to do one or the other. we are now $400 million below where we need to be. a second impact -- life extension programs for nuclear warheads already face very tight schedules because of the delays over the years. this would be further exacerbate

ed. warheads that are not refurbished in time are not going to be available for deployment, and this would have serious consequences for the readiness of our nuclear deterrent at a future date, which in turn of course could have serious implications for the credibility of our nuclear guarantees, including to our allies and partners. third, revitalization of our nuclear labs including these expensive but very necessary construction projects will be further delayed, and of course costs will go up even more. funding for science will be curtailed to support higher priority programs, thus starving the labs of important innovation and perhaps even hampering the recruitment of scientists and engineers necessary to maintain the long-term viability of a nuclear weapon complex. fourth, this funding reduction will trigger the reporting requirement contained in condition nine of the new start resolution of ratification. that requires the president to explain the impact of the resource shortfall on the

safety, reliability and performance of our nuclear forces. we already know what that report is going to say. it's serious. then the president must propose how he plans to remedy ther resource shortfall and in light of the shortfall whether and why it remains in the national interest of the united states to remain a party to new start. as a result, members of congress may seek to ensure through annual defense authorization legislation that any future new start-mandated reductions in the nuclear stockpile are tied to successful execution of the planned modernization program. and finally, this funding reduction which could well be a precursor to further cuts will dampen the enthusiasm of senators to agree to any future arms control agreements. senators who voted for new start on the basis of the ten-year modernization program will not be so easily swayed by such promises in the future. mr. president, i look forward to taking up and voting on the defense authorization report.

it has a lot of good things in it. it has some things that aren't as good. this report, as i said, is not as strong as was the house language, but it will contain some important provisions that we'll try if congress can enforce them to ensure that the modernization of our nuclear weapons continue on schedule for the next ten years, something that's critical to our future national security. a senator: mr. president. the presiding officer: the senator from colorado. mr. udall: mr. president, i rise to speak on the national defense authorization act and the conference report that accompanies it that we're voting on later today. i want to first acknowledge that chairman levin and ranking member mccain have worked tirelessly to craft a defense authorization bill that provides our armed forces with the equipment and the services that they need to keep us safe, and i want to thank them, their staffs and my colleagues for their diligence and their dedication to this important work. now, i also come to the floor because i want to share as i

have over these last few weeks the concerns that many americans and especially the people i represent, coloradans, have expressed over the last -- these last weeks about the detainee provisions that have been included in the defense authorization bill. i want to make it clear that i still have some very strong concerns about these provisions, especially because they have been presented as a solution to alleged gaps that exist in our counterterrorism policy. it's my strong belief that our military men and women, law enforcement officials and counterterrorism professionals have done an outstanding job since 9/11 to keep our nation safe. for ten years, we have killed, captured and prosecuted terrorists, and i believe -- in fact, i know our system has been successful. and the professionals who i mention here who are actually in charge of waging this battle to keep us safe agree with me that

these teeny provisions are of some real concern. that includes the secretary of defense, mr. president, the director of national defense and both directors of the f.b.i. and the c.i.a. and in speaking to these concerns that i hold along with the people i just mentioned, the administration itself has stated -- i want to quote here -- we have spent ten years since september 11, 2001, breaking down the walls between our intelligence, military and law enforcement professionals. congress should not now rebuild those walls and unnecessarily make the job of preventing terrorist attacks more difficult. and i know many agree, especially coloradans who contacted me in very impressive and large numbers, and they believe like i do because these detention provisions could endanger our national security that we ought to take a hard look at where we're heading. i strongly object, mr. president, to these provisions back in the summer when the armed services committee first considered them. in fact, i was the only member

of the armed services committee who cast a no vote during the committee markup. i felt a little lonely at that point in time, but i think my judgment has been recognized by the outpouring of concern about where we may be heading. so let me talk a little bit about what they do. the provisions could authorize the indefinite military detention of american citizens who are suspected of involvement in terrorism without charge, even those captured here in the united states. the point i have tried to make over and over again, this would concern each and every one of us. if these provisions deny american citizens their due process rights under a new, nebulous set of directives, it not only would make us less safe, but it will serve as an unprecedented threat to our constitutional liberties. senator graham, my dear friend from south carolina, has stated that if an american citizen takes up arms against the united states, then he or she should be treated as an enemy combatant.

i agree. however, the dangerous part of that proposition is as follows: how do we go about determining who those individuals are? no matter how serious the charge may be, the constitution requires us to provide our citizens with due process before they are incarcerated. especially indefinite incarceration. if we start labeling our citizens as enemies of the united states without any due process, i think we will have done real damage to the system of justice in our country, which, by the way, is admired all over the world. so my colleagues and i agree we've got to take every action necessary to keep our nation safe. but what separates us, what makes america exceptional, is that even in our darkest hours, we ensure that our constitution prevails. we do ourselves, we do ourselves a grave disservice by

allowing for any citizen to be locked up indefinitely without trial. no matter how serious the charges against them. doing so may make us feel safer, it may be politically expedient but we risk losing the principles of justice and liberty that have kept our republic strong and does nothing, frankly, to make us safer. no terrorist, no weapon, no physical threat is powerful enough to destroy who we are as a people. and that's why we have to remain diligent in making sure we remain true to the principles that make our country great. mr. president, i took note of this very principle in a powerful piece that i want to to ask to be entered into the record written by two retired marine corps generals, four-star marine corps generals. the presiding officer: without objection. mr. udall: they put it right to

the point we all need to hear. our ideals are assets, not liabilities. and in that spirit, interestingly enough, we had a very robust debate about these detention provisions and it bolstered my faith we can continue to have great and substantive interest debates ins body. but because of the concerns that were raised and the serious questions presented about the provisions we were able to able to secure improvements that may reduce -- i see my good friend from illinois who i know is going to speak, and he shares my concerns, some of the great graif concerns i've outlined here. let me touch on the adjustments that have been made. senator feinstein's amendment clarified the detainee provision rs not to be interpreted to -- quote -- "affect existing law related to detention of united states citizens." i was a member of the conference committee on this bill and during the conference committee negotiations resulted in a clarification that was made to

ensure that these provisions are not to be interpreted to affect the criminal enforcement of the f.b.i. or any other domestic law enforcement agency, end of quote. these were helpful changes and hopefully will prevent the undermining of our constitutional liberties and counterterrorism efforts. however while i was pleased my colleagues were willing to acknowledge that the language presented serious problems and left many questions unanswered, i still remain concerned about the detention provisions. making changes to the law that have serious ramifications for our constitution and our national security deserve serious thought and deliberation, and yet to this day we've not had a single hearing on these matters. hearings would allow us to understand and mitigate the concerns of national security experts like f.b.i. director

mueller. director mueller testified just yesterday in front of the judiciary committee and he said because of the requirements of this language -- quote -- "the possibility looms that we will lose opportunities to obtain cooperation from the persons in the past that we've been fairly successful in gaining" -- end of quote. one of our primary goals in these cases is to gain actionable intelligence and the f.b.i. is very good, in fact, they're unbelievably good at using a variety of techniques to gather the information we need. techniques, by the way, that fit within the pill of rights and the -- bill of rights and the universal code of military justice. some of my colleagues believe that intelligence will be lost if a suspect receives a miranda warning but now we may be jeopardizing entire cases by adding new layers of bureaucracy and questionable legal processes. these detention provisions,

mr. president, even as they're amended will present new numeros constitutional questions the courts will inevitably have to reand will present logistical problems that our national security experts will have to wade through. it sure feels to me like these changes are being forced on an already nimble and effective counterterrorism community. against their warnings and i remain unconvinced of their benefit. i continue to believe that the best course of action would be to separate these detention provisions from the defense authorization bill so that we can take our time, speak to experts in the field, and make sure that we are effectively balancing our counterterrorism needs and the constitutional freedoms of american citizens. most importantly we need to understand and to ensure we're not damaging our national security. so, mr. president, that's why i made it clear in signing the

conference report that i do not support the two flawed detention provisions, section 1021 and 1022. now, all of that said, the united states senate has a solemn obligation to our men and women in uniform to pass a defense authorization act. and as a proud member of the senate armed services committee, i understand the importance of this bill for a -- the military and for their families and while i continue to have serious reservations about the detention provisions and sought to separate them from the defense authorization bill, we face a single vote on the entirety of the defense bill which includes the amended detention provisions. that's not how i wanted to proceed but that's how we face the choice in front of us. for those of you who joined me in voicing opposition to the detention provisions, i want to thank you. we fought to ensure the rights of american citizens are not trampled with ease and we joined

the counterterrorism community to demand the full use of existing tools to fight the enemy. we showed that such a debate was worth having, and secured revisions to the language that will help us continue the important work of ensuring both our constitution and our national security remain protected. though i intend to vote for the final passage of the conference bill, i want to make clear that i do not fully support the bill. i sincerely believe that this debate is not over, and there's much work left to do. over the coming months and years as a member of the senate armed services committee i intend to hold this administration and any further administration accountable in the implementation of these provisions. i will also push us, the congress, to conduct the maximum amount of oversight possible as it relates to these provisions. we must apply a heightened level of scrutiny to ensure what

passes the u.s. senate today does not deny u.s. citizens their due process rights, does not impede our counterterrorism efforts by hamstringing our military, the f.b.i., the c.i.a., or others who keep us safe. if these provisions stray in any way from that standard, i will be the first to demand hearings and changes to the law. so, mr. president, in conclusion i believe that we owe it to our men and women in uniform to pass a defense authorization bill. but we also owe the american people a full and honest debate about our national security strategy that keeps us both safe and protects this document, the constitution we all have taken an oath to uphold. mr. president, with that i yield the floor. the presiding officer: the senator from illinois.

mr. durbin: i ask unanimous consent the time for debate on the conference report to accompany h.r. 1540 be extended until 4:00 p.m. with all other provisions of the previous order remaining in effect. further that at 4:00 p.m. the senate proceed to a vote on adoption of the conference report, that upon the disposition of the conference report and h. con. res. 92 the senate resume chiewftion with the christen nomination as provided under the previous order. the presiding officer: without objection. mr. durbin: with this agreement there will be two votes at 4:00 p.m., the first on the adoption of the defense authorization conference report, and the second vote on the confirmation of the nomination of morgan christen to be u.s. circuit judge for the ninth circuit. mr. president, i rise today to discuss the national defense authorization act conference report now pending before the united states senate. i want to thank my colleague from colorado, senator udall, as well as my colleague from california, senator feinstein,

for engaging in a spirited and important, perhaps historic debate during the consideration of this authorization bill on the floor of the united states senate. i especially want to thank senator feinstein. it was a pleasure to work with her to insert language which i think moved us closer to a position that she and i both share concerning the language in this important bill. i have the highest respect for the chairman of this committee, the -- and the ranking member as well. senators levin and mccain have worked diligently and hard on a bill which has become a hallmark of congressional activity, particularly in the senate, each and every year. it takes a special effort for them to produce an authorization bill of this complexity and challenge. they do it without fail, and they do it in a bipartisan fashion. for those critics of congress -- and there are many -- if you look at this bill, you can see the best of the united states senate in terms of the effort and the

professionalism that these two gentlemen apply with the entire committee in bringing this bill to the floor. this bill does a number of good things for our troops, and from my home state of illinois, and i'm thankful to the chairman and ranking member for those provisions. there's important language about public-private partnerships regarding the united states army that will have special value at the rock island arsenal where some of the most dedicated and competent civilian individuals continue to serve this country's national security, meeting the highest levels of standards of conduct and performance. they'll have a chance to continue to do that and it's important they continue to have that chance in this weak economy when so many jobs are struggling and so many people are struggling to find those jobs, i should say. the legislation provides the chiefs of the national guard with an equal seat at the table with the joint chiefs of staff to ensure the needs of our air, army national guard are heard at the highest levels. it makes it easier for reserve

units to access mental health services by providing access during drill weekends and provides our men and women in uniform with a much deserved pay increase which is imperative in light of their heroic service in the -- and the state of our economy today. mr. president, i must say though that there are proifertions in this bill that still concern me relative to the treatment and detention of terrorism suspects. first, we need to agree on the starting point. and the starting point should be clear on both sides of the aisle. there are those who threaten the united states. those who would use terrorist tactics to kill innocent people as they did on 9/11. we're fortunate through the good leadership of president george w. bush and president obama that we have been spared another attack since 9/11. but vigilance is required if we are to continue to keep this country safe. that is a bipartisan mission. it's shared by every member of congress, regardless of their political affiliation. we salute the men and women in

uniform first for all the work and bravery they've put into that effort, but quickly behind them we will add so many others in our law enforcement community, for example,, at every level, federal, state, and local who are engaged in keeping america safe. we salute the executive branch in its entirety including the department of national security, the white house, the national security advisors, and all of those who have made this a successful effort. the obvious question we have to ask ourselves, mr. president, is if for ten years we have been safe as a nation, why this this bill changing, why is it changing the way we detain and treat terrorism suspects? i will tell you it's been on ongoing effort by several members of this committee and senate to change the basic approach to dealing with terrorism to create a presumption that terror suspects would be treated first subject to military detention and that the cases would be considered

before military tribunals. this in and of itself is not a bad idea. it could be right under the circumstances. but it does raise a question. if to this point in time we have been able to keep america safe using the department of justice, law enforcement, and the courts of our land together with military tribunals, why are we changing? the record is pretty clear. since 9/11, more than 400 terrorism suspects have been successfully prosecuted in the courts of america. these are individuals who have been subjected to f.b.i. investigation, they have been read their miranda rights, they have been tried in our courts in the same manner as those accused of trials and tried every single day and they've been found guilty, 400 of them during the same interval, six, six have been tried by military

tribunals. overwhelmingly our court system, our criminal court system has been successful in keeping america safe. but that is not good enough for many members of the senate. they are still bound and determined to push more of them into the military tribunal system for no good reason. these people who have been tried successfully when accused of terrorism have been safely incarcerated in the federal penitentiaries across america, including in my home state of illinois at the marion federal prison. not one suggestion has been made that the communities surrounding these prisons nor the prisoners themselves are any threat. what we have instead is this presumption that isn't born by the -- borne by the facts or by our experience. i voted for the senate version of this bill with the hope that

members of the senate and the house who are negotiating the final bill would remove some of the detainee provisions that concern me. i want to acknowledge that the conference committee did make some positive changes, but i continue to have serious concerns because provisions in the bill would limit the flexibility of any president in combatting terrorism create uncertainty for law enforcement, intelligence and defense officials regarding how to handle suspected terrorists and raise serious constitutional concerns. i'm especially concerned about section 1022 in the conference report. this provision would for the first time in american history require our military to take custody of certain terrorism suspects in the united states. our most senior defense and intelligence officials have raised serious concerns about this provision. f.b.i. director robert mueller strongly objects to the military custody

requirement. for those who need reminding, robert mueller served as a federal judge in california and was appointed to this position as head of the f.b.i. by republican president george w. bush. he has been retained in that office by democratic president barack obama. i believe he is a consummate professional who has dedicated his life, at least in the last ten years-plus, to keeping america safe. i trust his judgment. i respect his integrity. in a letter to the senate, director mueller says the bill will -- quote -- "inhibit our ability to convince covered terrorists to cooperate immediately and provide criminal intelligence." end of quote. he was asked after the conference report whether or not the changes absolved any of his concerns and he still he was still concerned and i'll go to that in a moment. director mueller

concluded the provision i'm raising here raises uncertainty as to what procedures should be followed in the course of a terrorist investigation in the united states. end of quote. considering the source of this concern, the director of the federal bureau of investigation who has been responsible ultimately for the successful prosecution of 400 suspected terrorists, we should take his concerns to heart. the justice department which then prosecutes terrorism suspects shares director mueller's concerns. here's what they say: rather than provide new tools and flexibility for f.b.i. operators and our intelligence professionals, this legislation creates new procedures and paperwork for f.b.i. agents, intelligence lawyers and counterterrorism prosecutors who have conducted hundreds of successful terrorism investigations and prevented numerous attacks inside this country over the past decade. now the supporters of this legislation have responded to these concerns by pointing to the fact that the bill allows the secretary of

defense to waive the military custody requirement. but the justice department says that the administrative burdens of obtaining a waiver could hinder ongoing counterterrorism operations. here's how they explained it. while the legislation proposes a waiver in certain circumstances to address these concerns, this proposal inserts confusion and bureaucracy when f.b.i. agents and counterterrorism prosecutors are making split-second decisions. in a rapidly developing situation, the department of justice wrote, like that involving nagibuliza. they need to be focused on gathering critical intelligence about his plans. the authors of this legislation say they made changes to the military custody requirement to respond to these concerns raised by director mueller and the department of justice. but in my view, these

changes don't go nearly far enough. they continue to create uncertainty and impose administrative burdens on our counterterrorism officials. changes in the legislation don't change the fundamental premise. they create a presumption that a terrorism suspect arrested in the united states should be transferred to military custody despite the fact -- despite the fact that the federal bureau of investigation has kept america safe since 9/11. i'm not alone in my feelings. this morning an editorial in "the washington post" said -- and i quote -- "these provisions, while less extreme, are still unnecessary and unwise. lawmakers have introduced confusion in the form of directives that threaten to boll locks up law enforcement and military personnel when they most need to be decisive. why in the world would we create uncertainty and bureaucracy when

every second ticks away american lives could be in danger. yesterday in the senate judiciary committee f.b.i. director robert mueller testified he is still deeply concerned about section 1022 despite changes made in the conference report. here is what director mueller said. given the statute the way it is now it does not give me a clear path to certainty as to what is going to happen when arrests are made in a particular case. the possibility looms, director mueller says, that we will lose opportunities to obtain cooperation from the persons in the past that we've been fairly successful in gaining. that in and of itself should give pause to every member of the united states senate. when you consider this objection from the director of the federal bureau of investigation, the lead be official charged with combatting terrorism in the united states, shouldn't we take director mueller's concerns to heart? do we really want the

f.b.i. to have uncertainty the next time they stop and detain a suspected terrorist in the united states? i want to address another provision, section 1021. i was very concerned the original version of the legislation would for the first time in history authorize indefinite detention in the united states. we have agreed on a bipartisan basis to include language in the bill offered by senator feinstein that makes it clear that this bill does not change existing detention authority in any way. what it means is that the supreme court will make the decision who can and cannot be detained indefinitely without trial. not the united states senate. i believe that the constitution does not authorize indefinite detention in the united states. some of my colleagues see it differently. they've claimed the hamdi decision upheld indefinite detention. it didn't. hamdi was captured in afghanistan, not in the united states. and justice o'connor, the author of the opinion, carefully

stated in this hamdi decision -- and i quote -- "individuals who fought against the united states in afghanistan as part of the taliban" end of quote. some of my colleagues also cited the padilla case claiming its tkprepbts for indefinite -- precedent for decisions. padilla, a u.s. citizen, placed in military custody, the fourth circuit court of appeals, one of the most conservative in the land, upheld his military detention. but then before the supreme court had the chance to review the fourth circuit, george w. bush's administration transferred him out of military custody, prosecuting him in an article 3 criminal court. to this day the supreme court has never ruled on the question of whether it's constitutional to indefinitely detain a u.s. citizen captured in the united states. that decision must be decided by the supreme court, not by the senate, thanks to the feinstein amendment. i support the inclusion of the feinstein amendment in this bill.

i continue to believe there is no need for this provision overall and that it should have been removed. i also continue to oppose provisions in the conference report that limit the administration's ability to close the guantanamo bay detention facility. section 1027 of this legislation provides that no detainee held at guantanamo can be transferred to the united states even for the purpose of holding him incarcerated for the rest of his life in a federal supermaximum security facility. mr. president, there is absolutely no reason for this prohibition. section 1026 of this legislation provides clearly that the government may not construct or modify any facility in the united states for the purpose of holding a guantanamo bay detainee. let me bring this closer to home. we have offered for sale in the state of illinois a prison built by our state that has not been used or open in its entirety. the federal bureau of prisons has stated that

they are interested in purchasing it because of the overcrowded conditions in many federal prisons. we of course would like to see that done not just for the revenue that would come to the state of illinois, but because it would create jobs in my state. during the course of deliberating it, a controversy arose as to whether guantanamo detainees would be placed in this prison. initially the administration said they would, and i supported them. but ultimately it became clear that there was opposition to going forward with this purchase of the illinois prison if there was any likelihood that guantanamo detainees would be incarcerated at this prison. we have now made it clear, and i want to make it clear for the record, that despite my personal views on this issue, i believe the law is clear and that the thompson prison once under federal jurisdiction will not house guantanamo detainees. that has been a stated policy. it is now going to be a matter of law in this defense authorization. and regardless of my personal feelings on the subject, it is the

governing law and i will not try to change the situation of thompson in any way as long as i serve in the senate when it comes to this important issue. unfortunately, some of my colleagues, whom i disagree with, are determined to keep guantanamo open at all costs. i disagree. when you consider the expense of detention at guantanamo and the reputation of that facility, i believe the president was right initially when he talked about the fact that we needed to at some point bring detention at guantanamo to a close. my feelings are not only shared by the president but also by general colin powell, former republican secretaries of state james baker, henry kissinger and condoleezza rice, former defense secretary robert gates, admiral mike mullen and general david pet trace. there is -- petraeus. for eight long years during the previous republican administration, republicans on the floor arguing time and time again that it was

inappropriate, some said unconstitutional, for congress to ask a basic question about the bush administration's policies on issues like iraq, torture, waterboarding and warrantless wiretapping. time and again we were told that congress should defer to president bush, our commander in chief. let me give you one example. my friend, senator lindsey graham of south carolina on september 19, 2007, said -- and i quote -- "the last thing we need in any war is to have the ability of 535 people who are worried about the next election to be able to micromanage how you fight the war. this is not only micromanagement, this is a constitutional shift of power." end of quote. now with a democratic president, obviously some of my colleagues have had a change of heart. they think it's not only appropriate but urgent for congress to limit this president's authority to combat terrorism despite the success that we've had since 9/11 under president bush and president obama keeping america safe. this is a clear double

political standard. it's unnecessary. look at the track record. since 9/11 our counterterrorism professionals have prevented another attack on the united states and more than 400 terrorists have successfully been pr-fd and convicted -- prosecuted and convicted in federal court. here are a few. abdulmutallab, the underwear bomber. omar abdul ram mad, the so-called blind sheikh. 29th 9/11 hijacker, zacarias moussaoui and richard reid, the shoe bomber, all prosecuted in this land successfully and safely incarcerated in our federal prisons, something many on the other side refuse to acknowledge and argue is impossible has in fact happened over and over again over 400 times. why do we want to change this system when it's working so well to keep america safe? the fact that these detainee provisions have caused so many

disagreements and such heated debate demonstrates the danger of enacting them into law. we shouldn't impose this kind of uncertainty on law enforcement, defense and intelligence. we're working to protecting to america. we should not limit the flexibility of the administration to respond to suspected terrorists in the most effective way and we should not raise serious constitutional questions by requiring the military to detain people in the united states. mr. president, i'd like to close by asking unanimous consent to add to the record at this point a letter from the agents association of the federal bureau of investigation dated december 7, 2011, raising many of the same issues which i have raised. and i will say before asking for this consent that we contacted the agents association after the conference and asked them their reaction, and they said that they still stood behind their statements of december 7, 2011. i ask consent that this be added as a matter of record. the presiding officer: without objection. mr. durbin: and i ask

consent as well, mr. president, that a press report from "politico" that was released today relative to the testimony of director robert mueller of the f.b.i., which i referenced in my speech, also be added to the record so that his statement as it was reported will be reported more fully at this point. the presiding officer: without objection. mr. durbin: mr. president, i yield the floor. mrs. feinstein: mr. president? the presiding officer: the senator from california. mrs. feinstein: i want to thank the senator from illinois for his very eloquent remarks. also the senator from colorado, senator udall, i had the pleasure of hearing from my office. i think they have encapsulated the situation we find ourselves in very well. i want to follow up on the detention authorities in this bill and to clearly state that citizens apprehended in the united states shall not be

indefinitely detained by the military. today in a separate action, a group of us will be introducing new legislation called the due process guarantee act of 2011. i'm joined by senator leahy, the chairman of the judiciary committee, to which this bill will go; senator lee, a member of that committee; senator kirk, senator mark udall, senator paul, senator coons, and senator gillibrand. and i'd like to thank them for being original cosponsors of this bipartisan legislation. in sum, the due process guarantee act we are introducing today will add to another major law called the nondetention act of 1971, which clearly stated "no citizen shall be imprisoned or otherwise detained by the united states except pursuant to an act of congress." the new legislation we intend to

introduce will amend this nondetention act to provide clearly that no military authorization authorizes the indefinite detention without charge or trial of united states citizens who are apprehended domestically. it also codifies a clear statement rule that requires congress to expressly authorize detention authority when it comes to united states citizens and lawful permanent residents. for all military authorizations and similar authorities. we cannot limit the actions of future congresses, but we can provide that if they intend to limit the fundamental rights of united states citizens, they must say so clearly and explicitly. and i'm very pleased to add that senator durbin will also cosponsor this legislation.

lawful permanent residents are included in this bill we will introduce because they have the same due process protections as citizens under the united states constitution. in this bill, the protections for citizens and lawful permanent residents is limited to those apprehended in the united states, excluding citizens who take up arms against the united states on a foreign battlefield. i strongly believe the constitutional due process requires that united states citizens apprehended in the united states should never be held in indefinite detention. that is what this legislation would accomplish. so i look forward to working with my colleagues, especially chairman leahy on the judiciary committee, to move this bill forward, and i note that the senator from illinois is on the floor to speak about this bill as well.

our current approach to handling these suspect suspects in federl criminal courts has produced a strong record of support since the 9/11 attacks. mr. president, we would be wise to follow the same. if it ain't broke, don't fix it. our system is not broken. we have thwarted attempted terrorist attacks. we have captured terrorists, interrogated them, restreeived actionable intelligence from them, prosecuted them, and locked them up for lengthy sentencesentences, in most casee rest of their lives. now, both senator udall and senator durbin pointed out director mueller's testimony before the judiciary committee yesterday, and this is relevant because it had been said that the director of the f.b.i. was satisfied with the language. and when he was asked the questions in so many words in committee yesterday, "are you

satisfied with the language," he said, really, not quite. that given the statute the way it is now, it doesn't give me a clear path to certainty as to what's is going to happen when arrests ararrests are made in ar case. and he warned, the potential looms that we will lose opportunities to obtain cooperation from the persons in the past that we've been fairly successful in gaining -- end quote. finally, i want to explain, as the sponsor of the per in the event 0 provision in this bill, the defense authorization bill, that it should not be read to authorization indefinite detention of u.s. citizens captured inside the united states or abroad, lawful resident aliens of the united states captured inside our country or abroad, and any other persons who are captured or

arrested in the united states. on page 655 of the conference report, the compromise amendment, number 1456, that passed the senate by a vote of 99-1 reads this way -- and this is in the defense authorization bill, an and i quote "nothing n this section shall be construed to affect existing law or authorities relating to the detention of united states citizens or lawful resident aliens of the united states or any other persons who are captured or arrested in the united states." now what does this mean? this means that we have agreed to preserve current law for the three groups specified, as interpreted by our federal courts, and to leave to the courts the difficult questions of who may be detained by the military, for how long, and

under what circumstances. and now we will introduce a bill that will clarify that. i interpret current law to permit the detention of united states citizens as enemy combatants consistent with the laws of war, only in very natu w circumstance of a citizen who has taken an active part in hostilities against the united states and is captured the united states in an area of active combat operations, such as the battlefields of afghanistan. this was the supreme court's narrow holding in hamdi v. rumsfeld in 2004, and i'm sorry to say, it has been mischaracterized in this body. whether congress should grant the president more expansive powers of detention or act to curtail the powers identified by

the supreme court in hamdi is a question that congress will continue to debate in the future, and that's why we introduce the due process guarantee act today, to resolve that debate. but i'd like to point out the errors in the legal analysis by those who would interpret current law or this defense authorization act to authorize the indefinite detention of united states citizens without charge or trial, irrespective of where they're captured or under what circumstances. now, let's tor turn, let's turne court's decision in hamdi which has been incorrectlied cited by others for the -- incorrectly cited by others for the proposition that the 2001aumf permits indefinite detention of american citizens regardless of where they're captured. hamdi involved u.s.a. citizen,

yasser hamdi. the scoter supreme court's opinn this case was a muddled opinion by a four-vote plurality that recognized the power of the government to detain united states citizens, captured in such circumstances, as enemy combatants for some period but otherwise repudiated the government's broad assertions of executive order -- executive authority to detain citizens without charge or trial. in particular, the court limited its holding to citizens captured in an area of active combat operations and concluded that even in those circumstances the united states constitution and

the due process clause guarantees united states citizens certain rights, including the ability to challenge their enemy combatant status before an impartial judge, which hamdi did. the plurality's opinion stated, if the government has made clear, however, for the purposes of this cairks the enemy combatant that is seeking to detain -- that the government is seeking to detain is an individual who it alleges was part of or supporting forces hostile to the united states or coalition partners in afghanistan and who engaged in an armed conflict against the united states there, brief for respondents 3 -- this is all a quote -- "we therefore answer only the narrow question before us: whether the detention of

citizens falling within that definition is authorized." the opinion goes on to say, at page 517, "we conclude that the aumf is explicit congressional authorization for the detention of individuals" -- and here it is -- "in the narrow category redescribed." and the narrow category they describe is afghanistan. indeed, the plurality later emphasized that it was discussing a citizen captured on the battlefield, criticizing justice scalia's dissenting opinion, the opinion says, "justice scalia largely ignores the context of this case. a united states citizen captured in a foreign combat zone. and the plurality italicized and emphasized the word "foreign" in

that sentence. thus, to the extent the hamdi case permits government to detain a u.s. citizen until the end of hostilities, it does so only under a very limited set of circumstances; namely, citizens taking an active part in hostilities who are captured in afghanistan and who are afforded certain due process protections rat a minimum. it is also worth noting, amid legal uncertainty, regarding whether the government had the authority to detain ham -- that the government -- and this is the bush administration -- saw this and released hamdi to saudi arabia on the condition that he relinquish his united states citizenship. so the issue was never really joined, but the government essentially followed this

plurality decision. as a result, i don't regard the supreme court's decision in hamdi as providing any compelling support for broad assertions of legal authority to detain united states citizens without trial. certainly the case provides no support for the indefinite detention of citizens captured inside the united states. so let me go back to something. in 1971, the congress passed and richard nixon signed into law a nondetention act to preclude this very possibility. that act was intended in large measure to put the wrongs of japanese internment during world war ii right t provides simply, no citizen shall be imprisoned or otherwise detained by the united states except pursuant to an act of congress.

i very much agree with the second circuit court of appeals which held in the case of padilla v. rumsfeld that we conclude that clear congressional authorization is required for detentions of american citizens on american soil. because the nondetention act prohibits such detentions absent specific congressional authorization. the second circuit went on to say that the amaumf is not such an authorization. the second circuit decision, the am -- aumf is not such an authorization and no exception to the nondetention act otherwise exist exists" -- end quoassments the fourth circuit took a different conclusion when it it took up padilla's case. but it's analysis turned entirely on disputed claims that

pa tipadilla associated with fo. and padilla took up arms against united states forces in that country in the same waned to the same extent as did hamdi -- end quote. to help resolve this apparent dispute between the circuits, i believe we need to pass the due process guarantee act. my cosponsors and i are introducing it today. and i'd like to add senator bill nelson of florida as a cosponsor. and this is important. we spend about half a day on this floor discussing this with senator levin, with senator mccain, in the cloakroom with senators lee and paul, as well as with a whole host of staff, both from the armed forces

committee as well as -- armed services committee as well as the intelligence committee. and here's the conclusion. i and many of my colleagues and legal scholars believe neither the aumf nor the provisions of the national defense authorization act that we are considering today constitute such an express authorization to detain american citizens. and i mentioned -- and i won't go over it again. now, i know senator kirk is waiting and i will put in the record my comments on ex parte querin in 1942 which upheld jurisdiction of a united states military tribunal to try actually several german saboteurs captured inside the united states. and then, of course, the padilla

case enters into. this he was captured inside the united states. ultimately transferred out of military custody and tried and convicted in a civilian court, and so this would have his background as well so i'd like to sum up by quoting justice sandra day o'connor writing for the plurality in hamdi, and here's what she wrote. "as critical as the government's interest may be in detaining those who actually pose an immediate threat to the national security of the united states during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not represent that sort of threat."

this is what senator kirk, senator lee, senator paul, all -- those of us on the democratic side that have worked on this truly believe. what about the person captured on the corner that looks a certain way that gets picked up and put in to detention? does that person have the right to a charge and to a trial? our system of due process and the constitution of the united states says simply, "yes." so i look forward to working with my colleagues to pass the due process guarantee bill, and i will now be introducing the due process guarantee act and would like to send it to the desk with the cosponsors so noted.

the presiding officer: the bill will be received and appropriately referred. mrs. feinstein: thank you very much. and i would now like to defer to the distinguished senator from illinois, senator kirk. mr. kirk: madam president? the presiding officer: the senator from illinois. mr. kirk: madam president, i would like to -- [inaudible] -- the feinstein-leahy-lee legislation here because we are about to take up the national defense authorization bill with the controversial provisions in it. somewhat protected already by the feinstein language but this legislation locks in a fundamental truth that sink important for our country that. as a united states senate -- that as a united states citizen inside the united states you have inalienable rights protected by the u.s. constitution. our constitution says all crimes, prosecution thereof, shall be pursuant to a grand jury indictment.

there is no exception in the constitution for that. the constitution grants a united states citizen a trial in the state in which the crime was committed, i think clearly envisioning civilian trial. we as americans have a right to a speedy trial, not indefinite detention. we as americans have a right to a jury of our peers, which i would argue is enlisted or addition not enlisted or military personnel sitting in a jury. you cannot search our businesses or place of business or our homes without probable cause under the bill of rights that -- that you can not be deprived of your freedom or your property without due process of law and that i would say is not indefinite detention. that all due process guarantees under law are granted to you by the 14th amendment. and i would actually argue that no statute and no senate and no house can take these rights away

from you. it's very important to pass this legislation to prevent needless litigation up against constitutional rights which i regard already are your birthright as an american citizen. and it's very important to talk about what the feinstein legislation does and does not do. i think it's very narrowly crafted to defend the rights of american citizens and resident aliens inside the united states. we agree that aliens who are engaged or captured on foreign battlefields are perfectly subject to -- to rough justice, battlefield outcomes or detention and prosecution by the united states military. we even agree that a united states citizen like an twar al l alaki, who took up arms against the united states in yemen, got

attention and he received that proper attention that. illegal aliens, even inside the united states, we're not -- we're not engaging on that subject, and if they are a part of jihad or other warfare against the united states, they can be subject to -- to military jurisdiction. but with regard to u.s. citize citizens, resident aliens on u.s. soil, i would argue that the entire point of the department of defense is to defend our constitutional rights and to -- to make sure that they are honored. and if you read the constitution -- and i would urge all members in this battle to reread it. it's only 5,000 words long -- you will see that the rights provided are without qualification and are part of your birthright. now, what's the first thing that a united states senator does? a member of congress, the president, what is the very first thing that they do? they swear an oath to the constitution of the united states. what is the very first act that

any american, or actually resident alien, joining the united states military does? they don't swear an allegiance to a president or a leader or a territory, they swear allegiance to the united states constitution. and that is the mission for which they're undertaking to protect. now, we see a number of cases cited, as i noted, ex parte querin, the german spy or u.s. nationals that were landed in long island, summarily executed under u.s. military justice. i would say at least there they were part of a foreign military trained in that mission and trying to carry out that mission when that rough justice was -- was put in place. with regard to jose padilla, he was a united states citizen. sometimes when i was at the state department, people would ask me, what -- who our ambassador to puerto rico was. puerto rico is part of the united states. he was a full member of our country with -- with u.s. citizenship. he was arrested at o'hare

airport. but pursuant to executive action was immediately taken into military custody and -- and held in a brig. i regard all of his constitutional rights were then violated in the subsequent litigation. i think eventually the bush administration realized they were about to lose this case, which is why they kicked him back into civilian court. in the hamdi case, which is so often cited, even there we at least had foreign connections, foreign training as part of another battlefield. what we are talking about here is very narrow, to make sure at the very least that you as a united states citizen in u.s. territory are not going to be subject to indefinite military detention and addition and -- ay justice, that all of your constitutional rights are adhered to. i would simply ask this, also, as a reserve naval officer. which u.s. military officer wants the duty to roll into, for

example, peoria, illinois, and to arrest a complete american citizen for actions that citizen has only done in the united states, not connected to a foreign military or training to everywhere, and then to put that person through military detention and justice? i would say that for the long-term interests of the united states military, to protect the u.s. military, we do not want to give that mission to our armed forces. and a point of common sense should prevail here as well. we spend billions of dollars on a department of homeland defense which is fully under the fourth and sixth amendments of our constitutional protections. we have an extraordinarily able f.b.i., a.t.f., d.e.a., et cetera, the whole panoply of federal law enforcement, which quite properly is not under the administration of the pentagon but is instead under the administration of the department of justice. we have a vast array of state and local law enforcement all

dedicated to protecting the united states, but most importantly, to uphold the very oates that they also take -- the very oaths that they also take on their first minute as law enforcement officers, to protect the united states constitution. and so on this day that we pass the ndaa, which has a murky provision regarding this, somewhat protected by the feinstein legislation, it's very important for us then to rally behind the further legislative protections here. and i think this is a strong bipartisan legislation. i commend senator feinstein, chairman lee he leahy and senate for bringing it forward and i think this is, number one, will help protect the united states military from missions that it should not undertake. number two, will make sure that there's clear delineation, has there should be, between the department of justice, homeland security, and its whole panoply of agencies, and our military, which protects our rights from threat overseas.

but, most importantly, number three, to defend the united states constitution. your birthright as an american citizen to have these rights and to make sure that we do not subject any united states citizen apprehended inside the united states to indefinite detention under u.s. military authority knowing that they have inalienable birthright rights that were granted to them by the u.s. constitution. and with that, i commend the chair and would yield back and i think suggest the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call: other

provisions in the national defense authorization act that i want to briefly mention. mr. kirk: first, we have a modified brooks amendment in the conference report that says if there is any plan to deliver classified missile defense data to the russians, that the administration has to have a 60-day clock expire and then certify to the congress that none of this data could end up in the hands of third parties, particularly the iranians or the syrians. i would like to say that -- put the administration on notice that that certification probably cannot be made. da meetrdadimitri ragozin, the g negotiator for the government, has a close and continuing relationship with iran.

he's going to iran next month. that when we see the intelligence sharing and cooperation on missiles, on other weaponry, but especially discussions about a second nuclear reactor in iran, i think we should all realize that any classified data on u.s. missile defense going to the russians would be then given to the iranians. remember, in missile combat between enemies of the united states and us, everything would be over potentially in a matter of hours. if the russians accomplish by diplomacy what they have failed to do by espionage, which is getting critical details of u.s. missile defenses and especially missile defenses of poland and other key allies, we give only a few minutes to a few hours to the u.s. commander to be able to diagnose the problem, understand how he has been penetrated or fooled and to correct that, and i think that weakens the united states defenses significantly. now, i had a hold on our -- the

nominee for the united states ambassador to moscow, michael mcfall. because of the passage of the modified brooks amendment and a written letter of assurances given to me by the administration, i have now lifted that hold and i will be supporting his nomination, because also he will be good in working with the opposition human rights communities in russia. i think everyone is now on notice that we should not move forward with any plan to provide classified missile defense data to russia, that it will be shared with the islamic republic of iran, and that is one of the principal threats for which the u.s. and nato missile defenses are arrayed against. a second provision which is in the national defense authorization act concerns iran itself. senator menendez and i teamed up on an amendment that also says if you do business with the central bank of iran, you may not do business with the united states, but we provided critical

flexibility to the administration. the amendment is not imposed for weeks if not months, and two critical waivers are put in the amendment that says, number one, if we find a critical shortage in oil markets because of iran's leading role, sanctions could be delayed if not suspended. also, there is a general national security waiver put in if something unexpected happens. but in general, the rule goes forward that we're leading forward on a comprehensive plan to collapse the central bank of iran. despite secretary geithner opposing the menendez-kirk amendment, this body voted 100-0 to support that amendment because we know of the international atomic energy agency's report, that they may be getting close to having enough fissile material for a nuclear weapon. we know of iran's support for hezbollah and hamas. we know of their oppression of minorities, especially 330,000 baha'is who have been prohibited from contracting with the

iranian government. kids are not allowed to be in university. even though one important iranian actress who was sentenced to 90 lashes later suspended for simply appearing in an australian film without a headdress. the time for action on iran is now. with the passage of the national defense authorization act and the signature that we now expect from the president, a set of clocks begin, 60 and 180-day clocks. i will be teaming up with senator menendez and others and in fact the entire united states senate that supported this to make sure we have the toughest action possible to collapse the central bank of iran which the treasury department noted is the central money launderer for that government to support terror and nuclear proliferation, and with that, i yield back and -- actually, i would yield to my colleague from new hampshire.

ms. ayotte: thank you. madam president? the presiding officer: the senator from new hampshire is recognized. ms. ayotte: thank you, madam president. i rise today in support of the national defense authorization act, and in particular i'd like to speak briefly about the detainee provisions contained in the conference report. i have spoken many times over the last few months about this issue, but due to the importance of these issues -- and i think some of the unfortunate mischaracterizations we have heard about the bipartisan compromise that passed this body already overwhelmingly and came out of the armed services committee overwhelmingly, i wanted to come to the floor and make some closing points on this. i'd like to start with this proposition. no member of al qaeda, no terrorist should ever hear the words "you have the right to remain silent." that fundamental principle is at

the heart of the issue that we confronted in the armed services committee in addressing the detainee provisions that are contained within the defense authorization report. the central issue is how do we best gather intelligence to protect our country from future attacks? makes common sense that if you tell a terrorist that they have the right to remain silent, they may exercise that right. well, what if they do so and they have additional information about future attacks on our country, or as in the case of the so-called underwear bomber that unfortunately in my view has been cited by some of my colleagues as a success, if that event had been part of a series of events like the events that occurred on 9/11 where we were attacked on our own soil, what

would we have lost where after 50 minutes the so-called christmas bomber was told he had the right to remain silent. he exercised that right and we did not get to question him again until five weeks later. after we tracked down his parents, law enforcement officials tracked down his parents in another country and convinced him to cooperate. that is not a good policy to gather intelligence to protect our country, and that is at the heart of what we are trying to address on a bipartisan basis in the defense authorization bill. we have to ask ourselves the events of 9/11, were they acts of war or were they a crime against our country? i firmly believe that we are at war with members of al qaeda, that what happened to us on september 11 was an attack against the united states of america.

innocent americans were killed, not because of what they did but because of what we believe in and what we stand for as a country. and so when i hear some of my colleagues suggest that there are problems with the detainee compromise that was come to on a bipartisan basis in this body because we have basically said that if a foreign member of al qaeda comes to the united states of america, seeks to commit another 9/11 against us, seeks to attack our country or its citizens, that the presumption will be military custody, that that -- those provisions are misguided in some way deeply troubles me, because if that wasn't an act of war, then i don't know what is. and we need to make sure that we treat enemies of our country for

who they are and that they are not read their miranda rights. so what we did in this bipartisan compromise is we said there is a category of individuals, members of al qaeda or associated groups who want to come to america to attack us or our allies who, yes, there is a presumption of military custody. that way they don't have to be read their miranda rights or be provided the rights of our civilian system, but we also address the administration's concerns by giving them a national security waiver, by allowing our law enforcement officials the flexibility to come up with the procedures on how to implement the provisions of this bill, and i do want to address what i heard from f.b.i. mueller yesterday just to be clear on the record, because f.b.i. mueller -- f.b.i. director mueller yesterday raised concerns about these

detention provisions, saying that there was a possibility that looms that we will lose opportunities to obtain cooperation from individuals in the past that we have been able to obtain cooperation for -- from. well, i'm concerned because when f.b.i. director mueller came to a group of us, including the chairman of the armed services committee and ranking member mccain, he raised operational concerns about this provision and we said we want to address those concerns, so in the final conference report, there is language that was given to us by the f.b.i. to address their operational concerns, it was included in this bill without a comma changed, and so it makes me concerned when we put their language in to address their concerns, saying nothing in this section shall be construed to affect the existing criminal

enforcement and national security authorities of the federal bureau of investigation or any other domestic law enforcement agency with respect to a covered person, regardless of such covered person is held in military custody. so i say to director mueller, we put your language in directly and it makes me concerned when i hear in my view what our political viewpoints rather than what is the reality of what is in this bill, which will allow the f.b.i. to continue its work, will allow for us to hold in military custody those who are seeking to attack our country and will ensure that miranda rights do not have to be given if that is the best investigative way to go forward to protect our country. i see my colleague who is the senator from south carolina here, and i would like to ask him a question about the bill and the detainee provisions, particularly about the

authorization for the use of military force. i have heard some people on the floor, including the senator from colorado, the senator from illinois and the senator from california express concerns about the fact that this bill reaffirms the authority of the president of the united states to detain an american citizen who has joined with al qaeda and who is as a member of al qaeda or an associated force joining arms against our country and seeking to kill americans. i'd like to ask the senator from south carolina about this provision and why it's important for our country. mr. graham: i thank the senator from new hampshire who has been a great leader on this. well, let me just tell my colleagues what draws my thinking here. i think we're at war. i don't think it. i believe it. i hope you believe it, too. and i hope you believe america is part of the battlefield because this is what the enemy

would like to do is destroy our country. if you capture an al qaeda operative overseas, does anybody in this body suggest that we should give them a lawyer or read them their rights? in world war ii, if you captured a nazi prisoner, a nazi soldier overseas and you started saying you have the right to remain silent and give you a lawyer even though miranda didn't exist at the time, people would run you out of town. so if you believe you can kill an american citizen who has joined al qaeda, the awlaki case where the president of the united states made an executive decision under the rule of law, not through a court decision, to target an american citizen who had aligned themselves with the enemy, then if you can kill them, which is pretty indefinite, why can't you capture and hold them? now, that would be the dumbest thing in the history of the world for a nation to say we -- we all acknowledge the executive

branch's power to target an american citizen who has aligned themselves with the enemy, and we can kill them overseas, we can catch them overseas, we can interrogate them about what they know about future attacks, but when they get here, you have to treat them as a common criminal. i think what we shared, the senator from new hampshire, is we think al qaeda operatives, citizens or not, are not common criminals. we think they are crazy people. warriors bent on our destruction who would blow themselves up just as quickly as they would blow you up, and they don't care that they blow themselves up. the only reason the christmas day bomber didn't kill a bunch of people is his shoe didn't go off. the only reason the times square bomber didn't kill a bunch of people is because the bomb didn't go off. if you're an american citizen and you want to help al qaeda kill americans and destroy your own country, here's what's coming your way. and if you happen to be listening to this debate, please understand the law as it is

today, it's going to be after this bill is passed. we're at war. the authorization to use military force passed by the congress right after the attacks against this nation designates al qaeda as a military threat, not a common criminal threat, so we apply the law of war. there are two legal systems at play here. domestic criminal law that well serves us as a nation to deal with crime. even the worst person, the worst child abuser gets a lawyer and is presumed innocent. believe it or not, war criminals get lawyers and are presumed innocent. i'm proud of both systems, but the law enforcement model doesn't allow you to hold someone for a period of time to gather intelligence. under the law enforcement model, once you capture someone, you have to start reading them their rights and providing them a lawyer. under the law of war model, you can hold someone who is part of the enemy force and gather

intelligence, and this is not the first war where american citizens have sided with the enemy. the in re quirin case where americans aided nazi be aures. the court said "there is no bar to the nation holding one of its own citizens as enemy combatant." that's been the law for decades. if it made sense to hold an american citizen who was helping the nazis under under military authority because they're helping a military enemy of the nation to gather intelligence why in the world wouldn't it make sense to hold someone who is joined with al qaeda to gather intelligence about the next attack? let me give you an example of what we may face. homegrown terrorism is on the rise. the internet is out there. it's a good thing and a bad thing. but the idea of people getting radicalized and turning against their own country is a growing threat. the likelihood in the future of someone getting radicalized, an american citizen at home, going to pakistan, getting educated

in one of these extreme madrases, coming back home, getting off the plane at dulles airport, coming to the mall and start shooting american citizens and tourists alike is very real. what this legislation does, it says from the congress' point of view that we recognize the person who alying with -- aligned with al qaeda is not a common criminal, we expressly authorize the indefinite detention of someone who has joined al qaeda operations and why is that important? don't you think most americans, senator, would be offended that if after the person was captured who went on a rampage in the capitol to kill american citizens, to kill people in america, that you couldn't question them about is there somebody else coming? you'd have to say you have the right to remain silent, here's your lawyer? what we should do with that person who went to pakistan and got radicalized who wants to come back here and kill us all

is hold them in military custody like we've done in every other war and find out all we can about future attacks and what they know because we're not fighting a crime, we're fighting a war. that's been the law according to the supreme court for decades, and all we're doing here in congress is saying statutorily we recognize the authority of this president and every other president to hold an enemy combatant for intelligence-gathering purposes indefinitely whether they're captured at home or abroad because that only makes logical sense. and the idea of criminalizing the war and not being able to gather intelligence will put our country at risk, and let me say this about the system: no one can be held as an enemy combatant under the law that we've constructed without having their day in federal court. so don't worry about going to a tea party or moveon.org rally or occupy wall street rally and

somebody holding you as a political prisoner under this law. the only people that can be held under military custody for an indefinite period are ones who have found to have associated with al qaeda in an overt way and the government has to prove that to a federal judge, and if the federal judge doesn't believe the government has made their case, the person is released. if the federal judge says to the united states government you have convinced me that the person in front of me is cooperating and has joined al qaeda and is overtly engaged in hostilities against the united states, i hereby authorize you to hold that person to gather intelligence. how long can you hold them? as long as it takes to make us safe. and here's what the law does: every year the person being held as an enemy combatant has an annual review process where the experts in our government look at the threat this person possesses, whether or not you have an intelligence -- more intelligence to be obtained, and as a legal process to review

ongoing detention. here's what some of my colleagues would say. wait a minute, you can't do that. we're going to say as a member of congress that an artificial date you got to let that person go or try them? a lot of these cases will be based on intelligence that may not go to an article 3 court. we may have to compromise our national security. we can prove to a judge or member of al qaeda, but we're not going to take you to the criminal court because that's not in our national security interest. the key fact here is no one's held as an enemy combatant without judicial review and once you're determined to be an enemy combatant, we're going to apply the law of war like we have for 200 years and the law of war says no nation has to let an enemy prisoner go or prosecute them because we're not fighting a crime, we're fighting a war. if you're an al qaeda operative, you could get killed even if you're an american citizen by assisting the enemy at home or abroad. so don't join al qaeda because

you could lose your life, and if you do get captured, you can be held indefinitely under the law of war because you've committed an act of war. ms. ayotte: would the senator from south carolina yield for a question? isn't it true that included within the defense authorization language detainee provisions is that nothing in this section is intended to limit or expand the authority of the president or the scope of the authorization for use of military force? in other words, what is the law today as you just described it, we are reaffirming in this bill, but we are not adding or subtracting from the president's authority he has as the commander in chief of our country to protect our country against members of al qaeda. mr. graham: here's what we are doing -- you're correct. here's what lindsey graham, carl levin and an overwhelming number of the members of the body is about to do. we're about to pass a defense authorization bill that increases military pay, has a

lot of things but we're about to say as a congress we believe we're at war and we reject the idea, the libertarian idea who are great americans, that if you get to america somehow it's no longer a war, that -- i think the libertarians agree if you catch an al qaeda operative including an american citizen overseas, you don't have to read them their rights, and you don't have to give them a lawyer, but somehow the perverse logic is if you make it to america to attack us, whether you're a citizen or not, somehow you get a special deal. all of us who are voting for this bill say that's crazy. we're at war. no other war has that been the case. if you were -- had suggested in 1942 that the american citizens helping the nazis commit sabotage against the united states had a special status and could not be treated in the

fashion of a military threat to the country, they'd have run you out of town. so we're ten years out from the attacks of 9/11, and here's what we're rejecting: we're rejecting the criminalization of the war but we're doing it in a smart way. we're not telling the executive branch you have to go into a law of war detention system. we're just saying that's available to you. we're not telling the executive branch that you have to try people in military commissions. we're just saying to you that's available for noncitizens. what we're telling the executive branch is that we believe we're at war, and that narrow group of people, thank god, they're narrow, who join al qaeda do not have special privileges when it comes to destroying our homeland. that if you make it to america, the closer you get to us, the more tools we should have available to protect ourselves. so we're on record, at least i am and i think the body,

senator levin has been terrific, the administration has been great to work with, finally after ten years the congress of the united states through this legislation is going to make the simple -- the simple statement, simple proposition that under the law of war you can be held as an enemy combatant indefinitely to protect this nation because when you join al qaeda, the enemy of us all, we're not worried about how we're going to prosecute you right away, we're worried about what you know about the next attack coming, and let me tell you why we need this flexibility. the christmas day bomber, the bomb didn't go off, thank god, it was just luck. was read his miranda rights within 45 minutes. five weeks later, his parents convinced him to cooperate. what we're suggesting is that there's another way that's been used in other wars, that the

united states intelligence community, law enforcement community, and military have an option available to you. you could grab this person who has just tried to blow up an airplane over detroit, american citizen or not, you can hold them without telling them they got a right to a lawyer and reading them their miranda rights because you're trying to find out is another airplane coming. and what do you know about the enemy and what were you up to and where did you train. if we take that option off the table, we'll have diminished our national security, we'll have overturned what every other time of war has been about. we would be the first congress in the history of the country to reject the idea that you can hold someone who is collaborating with the enemy under the law of war. let's reverse this. this is the first time in history people have said on the floor of the united states senate we reject the supreme

court holdings that allow the american government to hold someone as an enemy combatant when they've joined the enemy forces at home or abroad. so those of us who are voting for this, we're saying we accept the proposition that if you join al qaeda, you can be killed, you can be captured, you can be interrogated. and i'm willing to accept the heat for making that decision. because if you can't kill them, and you can't capture them and you can't interrogate them, we made a huge mistake because these people hate us. they hate who we are, they hate what we stand for, and they would kill us all if they could, and they're out there, and some of them are among us who have the title of american citizen. but let me tell you about that title. not only does it have rights, it has responsibilities. and our courts have said there's

nothing in our law or our constitution prevents us from holding one of our own when they join the enemy. because when you join the enemy, you have not committed a crime, you have turned on the rest of us. and you should accept the consequences of being at war with america. and being at war with america is something you should fear. and if you don't fear being at war with america, we've made a huge mistake. i believe in due process. no one is going to prison without a federal judge's oversight. no one stays in prison indefinitely without an annual review. but my god, we're not going to arbitrarily say you got to be let go because of the passage of time and we're not going to criminalize this war because it is a war. and as sure as i'm standing here talking today, we're going to be wrong once. we have to be right every time,

senator. and we've been lucky, and our men and women in uniform and our intelligence community and our f.b.i. agents are doing a wonderful job. they're working night and day to protect us and the threats are growing, they're not lessening and there will come a day, i'm sad to say, when we're going to get hit again. but when that day comes, we're going to make sure we have the tools to deal with it in terms of what it really is, an act of war, and we're going to have the tools available to this country to rein in the consequences because we're going to have the tools available to find out where is the next attack coming from. we're not going to criminalize the war. we're going to fight it within our values, we're going to provide robust due process, but we're going to acknowledge as a body here in congress that our chief executive and those men and women in uniform, law

enforcement agents, c.i.a. agents, that you have our blessing to do your job and beer going to acknowledge that you have the tools available in this war that were available to other like people in other wars. because ladies and gentlemen, if there was ever a war where it was important to know what the enemy was up to, and hit them before they hit you, it's this war. because they could care less about losing their lives, and the only way we'll be safe is to gather intelligence. and you can't gather intelligence in my view by locking america down to dragnet standards. this is not a tv show. this is a real-world event that changes as i speak. so to senator levin, senator ayotte, and to all of those who have tried to create a compromise to enjoy bipartisan

support, to the administration, thank you all. to the critics, some of your criticism has been unfounded, but you have the right to be a critic. you live in a state called live free and die. let me remind everybody, being a critic and being able to speak your mind sometimes people have to die. the presiding officer: the time for the senator from new hampshire has expired. mr. graham: could i ask for 30 seconds. the presiding officer: is there any objection? mr. levin: reserving the right to object, of course i won't, how much time is left before our vote? the presiding officer: one minute. mr. levin: if the senator would save me 30 seconds, i'd appreciate it. the presiding officer: without objection. mr. graham: civil liberties and the american way of life, if we don't fight for it, we're going to lose it, and we're under siege and we're under attack so let's fight back within our values. this bill allows us to fight

back, and i am very proud of the product. thank you, senator levin, for being such a good leader at the time we need good leaders. and i yield. the presiding officer: the senator from michigan. mr. levin: let me thank senators graham and ayotte for their contribution this afternoon and long before this afternoon on this subject. the best answer to some of the criticism we've heard this afternoon, f.b.i. has been successful, why change it, read the law. read the conference report "nothing in this section shall be construed to affect the existing criminal enforcement and national security authorities of the federal bureau of investigation." it's flat-out, it's explicit in the law. something else we've heard, we're doing something for the first time, long-term custody for american citizens. read the conference report. nothing in this section shall be construed to affect existing law or authorities relating to the detention of the united states citizens. i urge people to read our conference report, read the senate bill before they accept some of the arguments which

have been made against this conference report. i ask unanimous consent, madam president, that the statement of the press secretary for the president that was issued yesterday on behalf of the president be inserted in the record, including this line "we have concluded that the language does not -- that language in the conference report does not challenge or constrain the president's ability to collect intelligence, incapacitate dangerous terrorists and protect the american people. and the key word for many people, the president's senior advisorses will not recommend a veto. again i want to thank all my colleagues who participated in this debate, and i yield the floor. the presiding officer: without objection, the materials will be placed in the record. is there a sufficient second? there appears to be a sufficient second. the clerk will call the roll.

vote:

vote:

the presiding officer: are there any senators in the chamber wishing to vote or change their vote? can we splees order in the chamber? on this vote, the yeas are 86, the nays are 13 and the conference report is adopted.

the presiding officer: under the previous order -- without objection, so ordered. we have other business before the chamber. could we please have order. under the previous order, the senate will proceed to the consideration of h. con. resolution 92, which the clerk will report. the clerk: h. con. res. 92, directing the clerk of the house of representatives to correct the enrollment of the bill h.r. 1540. the presiding officer: under the previous order, the resolution is agreed to and the motion to reconsider is considered made and laid upon the table. under the previous order, the senate will proceed to executive session to resume consideration

of the christen nomination. under the previous order, there will be two minutes of debate equally divided and controlled in the usual form. a senator: ask all time be yielded back. the presiding officer: the senator from rhode island asks that all time be yielded back. is there objection? without objection, so ordered. the question is on the nomination. a senator: ask for the yeas and nays. the presiding officer: is there a sufficient second? the yeas and nays are ordered. the presiding officer: is there a sufficient second? there is. the clerk will call the roll. vote:

vote:

vote:

the presiding officer: are there any senators who wish to vote or to change their vote? the yeas are 95, the nays are 3. the nomination is confirmed. under the previous order, the motion to reconsider is considered made and laid upon the table. the president will be immediately notified of the senate's action, and the senate will resume legislative session. a senator: madam president. the presiding officer: the senator from alaska is recognized. mr. begich: i ask unanimous consent the senate proceed to a period of morning business until 7:00 p.m. with senators permitted to speak for up to ten minutes each. the presiding officer: without objection, so ordered. mr. begich: madam president, i come to the floor first to say thank you to my colleagues for supporting i think an incredible judge, but also i come to the floor today to mark an

anniversary. december 18, 2011, marks the 40th anniversary of a truly historic date for the first people of alaska. passage of the alaska native land claims act. to mark this historic occasion, senator murkowski and i have introduced a senate resolution to formally celebrate the success and contributions of alaskan native people and their corporations. we will be asking for unanimous consent of our colleagues to adopt this resolution at a certain point. over the past 40 years, alaska has witnessed astonishing economic growth resulting from this act. this has benefited not only naifd people but all of alaskans. this has allowed a new group of people who for centuries were economically disadvantaged to enter into the business world and become business leaders. under anlca, they have contributed to the state and the

national economy in unprecedented ways. anlca has two primary goals -- to resolve long-standing issues surrounding land claims in alaska and to stimulate economic development. many alaskans led the charge on creation and passage of the claims act. my father, late representative dick begich, was one of them. there are many new native leaders involved -- willie hensley, john borborich and other young advocates who very quillen gauged in historic native rights legislation. today, i would also like to recognize all the wives, daughters, sisters, secretaries and other powerful women who contributed to the passage of anlca. many of them may not have received the former recognition of their contribution. women like marlene johnson who played an instrumental role in the creation of the passage of anlca. she spent countless hours flying to and from southeast alaska to

washington, d.c., leaving behind her full-time job and five children, doing her part to see anlca move through congress, to engage in negotiations, alaskans would fly for days to get from barrow or fairbanks to washington, d.c. many of them camped out on couches and floors in washington for months to get it done. today, the alaskan native corporations are tremendous economic drivers, not only for alaska but for the entire united states and even internationally. in 2010, eight of ten most profitable businesses in alaska were alaskan native corporations. of the five that topped $1 billion, all were native corporations. cash dividends paid to corporations shareholders continue to be very important sources of income for many alaskan native individuals and families. in total, dividends paid by alaskan native corporations to their shareholders rose by 39%

from 2009 to 2010 to up to $171 million. these dividends serve native feasms in -- families in many ways. in some cases, they help provide basics like food, heating fuel or supplies and equipment to continue their subsistence way of life. for other families, shareholder dividends go to college savings accounts or new start-up businesses. sometimes they simply help offset the cost of caring for their aging loved ones. and for the business owners everywhere, native and nonnative alike, shareholder dividends provide a major economic boost. today, alaskan native corporations and their subsidiaries are providing thousands of jobs across the united states. these corporations provide job training and scholarships and other support to create new opportunities for young shareholders and their descendants. the corporations also offer meaningful intern ships to help young -- internships to help young alaskan natives build

long-standing professional careers within the corporate structure. elders, the most respected people in the native communities, receive special assistance and financial support from their corporations. clearly, 40 years later, many alaskan native corporations have matured and become business leaders. unfortunately, many others and alaskan natives they represent have not all had great success yet. the alaskan native land claims act was one approach, an experiment to meet alaska's treatly obligations to the first people of this country. i will continue to support the alaska native tribes while also strengthening the capacity of the alaska native corporations. now we look forward to the next 40 years of anlca. i call on my colleagues in this chamber to work together to help all american indian and alaskan native people gain their economic independence. through anlca, we see this happening in alaska. alaskan native groups are prude

of -- proud of their cultural heritage but also of their business success. we all should be proud of this success. in alaska, we innovate. we rely on fresh approaches to solve our unique challenges. the alaskan native claims settlement act is such an example. it was a announcemental act of congress and one my father pushed forward and i know was profoundly successful and today i profoundly defend. with our national economy in the current state, we need more of this in america. we need to lift our people to build capacity and to allow the first people of this nation to succeed. when that happens, we all benefit. madam president, senator murkowski and i ask for your support on this resolution and for our colleagues to support this resolution to recognize and honor the impact of the alaskan

land claims settlement act. it honors alaska's extraordinary people and the extraordinary accomplishments over the last 40 years. thank you. i yield the floor. ms. murkowski: madam president. the presiding officer: the senator from alaska is recognized. ms. murkowski: madam president, i feel like this is a little bit of alaska day here. we just celebrated the very successful nomination of morgan christen to the ninth circuit, really quite proud of morgan and her accomplishments as an alaskan and as an alaskan woman to -- to achieve what morgan has achieved, to be the example that

she has set really makes me quite proud today. so i am -- i am pleased that the senate gave her such a resounding confirmation. this is quite significant for us, and alaskans are feeling good today. as senator begich has mentioned, alaskans are celebrating other occasions this week as well. i rise today to speak about a resolution that senator begich and i have introduced that recognizes december 18, 2011, as the 40th anniversary of the alaska native claims settlement act. our resolution recognizes and commends the significant achievements that alaska native people have made over the past 40 years through their congressionally created alaska native corporations. not only has the alaska native community risen to the challenge of creating sustainable businesses, but they have created employment opportunities for our nation's citizens really across the country. not just -- not just located in the state of alaska but really

all across our country and through the world. alaska native corporations continue to make significant con triks to their -- contributions to their communities, our nation and the global economy, and for this they should be commended and they should be applauded. our resolution encourages the citizens of the united states to acknowledge and support the leadership and continued efforts of alaska native people in managing their resources through the alaska native corporations. and the resolution sends a strong message of support to thousands of alaska native youth from across the state who are working and contributing positively to their families and to their communities, focusing their efforts on earning a college education, participating in cultural activities and realizing a dream that they may one day earn places of leadership within their own corporations. their efforts are recognized and appreciated. over thi