[Pages S7148-S7206]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2013--Continued

Amendment No. 3096, as Modified

The PRESIDING OFFICER. The Senator from Oregon.
Mr. MERKLEY. Mr. President, I ask unanimous consent to call up
Merkley amendment No. 3096, as modified.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Oregon [Mr. Merkley], for himself, Mr.
Paul, and Mr. Manchin, proposes an amendment numbered 3096,
as modified.

Mr. MERKLEY. I ask unanimous consent that further reading of the
amendment be waived.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment (No. 3096), as modified, is as follows:

At the end of subtitle B of title XII, add the following:

SEC. 1221. COMPLETION OF ACCELERATED TRANSITION OF UNITED
STATES COMBAT AND MILITARY AND SECURITY
OPERATIONS TO THE GOVERNMENT OF AFGHANISTAN.

(a) Sense of Congress.--It is the sense of Congress that
the President should, in coordination with the Government of
Afghanistan, North Atlantic Treaty Organization (NATO) member
countries, and other allies in Afghanistan, seek to--
(1) undertake all appropriate activities to accomplish the
President's stated goal of transitioning the lead
responsibility for security to the Government of Afghanistan
by mid-summer 2013;
(2) as part of accomplishing this transition of the lead
responsibility for security to the Government of Afghanistan,
draw down United States troops to a level sufficient to meet
this goal;
(3) as previously announced by the President, continue to
draw down United States troop levels at a steady pace through
the end of 2014; and
(4) end all regular combat operations by United States
troops by not later than December 31, 2014, and take all
possible steps to end such operations at the earliest date
consistent with a safe and orderly draw down of United States
troops in Afghanistan.
(b) Rule of Construction.--Nothing in this section shall be
construed to recommend or support any limitation or
prohibition on any authority of the President--
(1) to modify the military strategy, tactics, and
operations of United States Armed Forces as such Armed Forces
redeploy from Afghanistan;
(2) to authorize United States forces in Afghanistan to
defend themselves whenever they may be threatened;
(3) to attack Al Qaeda forces wherever such forces are
located;
(4) to provide financial support and equipment to the
Government of Afghanistan for the training and supply of
Afghanistan military and security forces; or
(5) to gather, provide, and share intelligence with United
States allies operating in Afghanistan and Pakistan.

Mr. MERKLEY. Mr. President, I am pleased to be able to present this
amendment in this Chamber. I appreciate that my lead cosponsor Rand
Paul and nine other Senators have signed on to sponsor this amendment.
This amendment is designed to help draw down the war in Afghanistan
in a timely and responsible manner. It is time to bring home our sons
and daughters, our brothers and sisters, our husbands and our wives as
quickly and as safely as possible and put an end to America's longest
war.
We went to Afghanistan with two objectives: destroy al-Qaida training
camps and hunt down those responsible for 9/11. Our capable American
troops and NATO partners have accomplished those goals. Afghanistan is
no longer, and has not been for years, an important hub for al-Qaida
activity. Al-Qaida has robust operations in a number of nations around
the world, including Yemen and Somalia, but not in Afghanistan.
American forces have also accomplished the second objective:
capturing or killing those who attacked America on 9/11. So it is time
to put an end to this war.
Simply put, we are currently in the midst of a nation-building
strategy that is not working. It simply makes no sense to have nearly
70,000 troops on the ground in Afghanistan when the biggest terrorist
threats are elsewhere.
Our President recognizes this fact and has committed to a steady
course of drawing down troop levels and handing over security
responsibilities to the Government of Afghanistan. In contrast, the
House-passed version of this bill calls for keeping at least 68,000
troops in Afghanistan through the end of 2014.
Let me give some details about what this short amendment does. It is
a sense of Congress resolution that the President should undertake all
appropriate activities to accomplish his stated goal of transitioning
the lead responsibility for security to the Government of Afghanistan
by midsummer 2013.
This is the President's goal, and our team has been working to make
this happen; second, as a part of accomplishing this transition of lead
responsibility for security to the Government of Afghanistan, drive
down United States troops to a level sufficient to meet this goal.
Third, as previously announced by the President, continue to draw
down U.S. troop levels at a steady pace through the end of 2014; and,
very importantly, end all regular combat operations by the U.S. troops
by not later than December 31, 2014, and take all possible steps to end
such operations earlier if it can be done in a manner consistent with a
safe and orderly drawdown of U.S. troops.
This amendment very clearly sets out that it is not to be construed
that we are recommending or supporting any limitation or prohibition on
any authority of the President to modify the military strategy,
tactics, and operations of the U.S. Armed Forces as such Armed Forces
redeploy from Afghanistan. It also clearly notes that we are not
interfering in any way with the

[[Page S7149]]

ability of the United States to authorize forces in Afghanistan to
defend themselves whenever they may be threatened or to attack al-Qaida
forces wherever such forces are located. Moreover, we are not limiting
in any way the provision of financial support and equipment to the
Government of Afghanistan for the training and supply of Afghan
military and security forces, nor are we interfering with the gathering
of intelligence.
Essentially, the amendment boils down to this: Mr. President, you
have laid out a course to end this war, and we support you in this
effort and encourage you to continue this effort and, if conditions
allow, to accelerate the pace.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, I have looked at the amendment by the
Senator from Oregon. He has made some modifications that I think are
appropriate, and this side has no objection. I understand, however,
that he will insist on a recorded vote, which is his right. But I see
at this time no objection to the amendment as he describes it.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. MERKLEY. Mr. President, I appreciate the partnership of my
colleague from Arizona.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. PORTMAN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

Amendment No. 2995

Mr. PORTMAN. Mr. President, I ask unanimous consent that the pending
measure be set aside, and I call up amendment No. 2995.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Ohio [Mr. Portman] proposes an amendment
numbered 2995.

Mr. PORTMAN. Mr. President, I ask that further reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

(Purpose: To enhance authorities relating to the admission of defense
industry civilians to certain Department of Defense educational
institutions and programs)

At the end of subtitle E of title X, add the following:

SEC. 1048. ENHANCEMENT OF AUTHORITIES ON ADMISSION OF DEFENSE
INDUSTRY CIVILIANS TO CERTAIN DEPARTMENT OF
DEFENSE EDUCATIONAL INSTITUTIONS AND PROGRAMS.

(a) Navy Defense Product Development Program.--Section
7049(a) of title 10, United States Code, is amended--
(1) in the second sentence, by inserting ``or professional
continuing education certificate'' after ``master's degree'';
(2) in the third sentence, by striking ``125 such defense
industry employees'' and inserting ``250 such defense
industry employees''; and
(3) in the last sentence, by inserting before the period at
the end the following: ``or an appropriate professional
continuing education certificate, as applicable''.
(b) United States Air Force Institute of Technology.--
Section 9314a(a) of such title is amended--
(1) in paragraph (1), by inserting ``or professional
continuing education certificate'' after ``graduate degree'';
(2) in paragraph (2), by striking ``125 defense industry
employees'' and inserting ``250 defense industry employees'';
and
(3) in paragraph (3), by inserting before the period at the
end the following: ``or an appropriate professional
continuing education certificate, as applicable''.

Mr. PORTMAN. Mr. President, this amendment is intended to expand the
opportunities for defense industry employees to attend or participate
in Department of Defense educational institutions and programs.
Specifically, the amendment will broaden the existing statute that
authorizes defense industry employees to obtain a master's degree at
Defense Department schools, such as the Naval Postgraduate School, by
also allowing them to obtain professional continuing educational
certification.
Having key members of the defense industry exposed to the unique
courses offered at these institutions is a win-win for the Federal
Government. The industry pays the tuition and covers all costs
associated with their attendance, and in the process our defense
industry partners gain greater expertise in the military application of
engineering and science, as well as acquisition and program management
expertise.
Again, I believe this is a win-win for the government, and I ask for
a voice vote of the pending amendment.
The PRESIDING OFFICER. The Senator will suspend.
The Senator from Michigan.
Mr. LEVIN. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. LEVIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. Mr. President, I don't know of any further debate on this
side on the Portman amendment. We support it, and we have no objection
to it going to a voice vote at this time.
The PRESIDING OFFICER. Is there further debate on the amendment?
The question is on agreeing to the amendment.
The amendment (No. 2995) was agreed to.
Mr. LEVIN. Mr. President, I move to reconsider the vote.
Mr. McCAIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. LEVIN. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Ms. AYOTTE. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. AYOTTE. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Sanders). The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. LEVIN. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

Amendments Nos. 2948, 2962, 2971, 2986, 2989, 3085, 3110, 3166, 2981 En
Bloc

Mr. LEVIN. Mr. President, I wish now to call up a list of nine
amendments, which have been cleared by myself and the ranking member,
by Senator McCain: Webb amendment No. 2948, Sessions amendment No.
2962, Inhofe amendment No. 2971, Casey amendment No. 2986, Murray
amendment No. 2989, Vitter amendment No. 3085, Coburn amendment 3110,
Manchin amendment No. 3166, and Boxer amendment No. 2981. I believe
they have been cleared on the Republican side.
Mr. McCAIN. I have no objection.
Mr. LEVIN. Mr. President, I now ask unanimous consent that the Senate
consider these amendments en bloc, the amendments be agreed to, and the
motions to reconsider be laid upon the table.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The amendments were agreed to, as follows:

amendment no. 2948

(Purpose: To extend the authority to provide a temporary increase in
rates of basic allowance for housing under certain circumstances)

At the end of subtitle A of title VI, add the following:

SEC. 602. EXTENSION OF AUTHORITY TO PROVIDE TEMPORARY
INCREASE IN RATES OF BASIC ALLOWANCE FOR
HOUSING UNDER CERTAIN CIRCUMSTANCES.

Section 403(b)(7)(E) of title 37, United States Code, is
amended by striking ``December 31, 2012'' and inserting
``December 31, 2013''.

amendment no. 2962

(Purpose: To express the sense of Congress on the submittal to Congress
of the homeland defense hedging policy and strategy of the Secretary of
Defense)

At the end of C subtitle of title II, add the following:

SEC. 238. SENSE OF CONGRESS ON THE SUBMITTAL TO CONGRESS OF
THE HOMELAND DEFENSE HEDGING POLICY AND
STRATEGY REPORT OF THE SECRETARY OF DEFENSE.

(a) Findings.--Congress makes the following findings:
(1) Section 233 of the National Defense Authorization Act
for Fiscal Year 2012 (Public

[[Page S7150]]

Law 112-81; 125 Stat. 1340) requires a homeland defense
hedging policy and strategy report from the Secretary of
Defense.
(2) The report was required to be submitted not later than
75 days after the date of the enactment of the National
Defense Authorization Act for Fiscal Year 2012, namely by
March 16, 2012.
(3) The Secretary of Defense has not yet submitted the
report as required.
(4) In March 2012, General Charles Jacoby, Jr., Commander
of the United States Northern Command, the combatant command
responsible for operation of the Ground-based Midcourse
Defense system to defend the homeland against ballistic
missile threats, testified before Congress that ``I am
confident in my ability to successfully defend the homeland
from the current set of limited long-range ballistic missile
threats'', and that ``[a]gainst current threats from the
Middle East, I am confident we are well postured''.
(5) Phase 4 of the European Phased Adaptive Approach (EPAA)
is intended to augment the currently deployed homeland
defense capability of the Ground-based Midcourse Defense
system against a potential future Iranian long-range missile
threat by deploying an additional layer of forward-deployed
interceptors in Europe in the 2020 timeframe.
(6) The Director of National Intelligence, James Clapper,
has testified to Congress that, although the intelligence
community does ``not know if Iran will eventually decide to
build nuclear weapons'', it judges ``that Iran would likely
choose missile delivery as its preferred method of delivering
a nuclear weapon''. He also testified that ``Iran already has
the largest inventory of ballistic missiles in the Middle
East, and it is expanding the scale, reach, and
sophistication of its ballistic missile forces, many of which
are inherently capable of carrying a nuclear payload''.
(7) The 2012 Annual Report to Congress on the Military
Power of Iran by the Department of Defense states that, in
addition to increasing its missile inventories, ``Iran has
boosted the lethality and effectiveness of its existing
missile systems with accuracy improvements and new
submunitions payloads'', and that it continues to develop
missiles that can strike Israel and Eastern Europe. It also
states that ``Iran has launched multistage space launch
vehicles that could serve as a testbed for developing long-
range ballistic missiles technologies'', and that ``[w]ith
sufficient foreign assistance, Iran may be technically
capable of flight-testing an intercontinental ballistic
missile by 2015''.
(8) Despite the failure of its April 2012 satellite launch
attempt, North Korea warned the United States in October 2012
that the United States mainland is within range of its
missiles.
(9) The threat of limited ballistic missile attack against
the United States homeland from countries such as North Korea
and Iran is increasing.
(b) Sense of Congress.--It is the sense of the Congress
that--
(1) the homeland defense hedging policy and strategy report
required by section 233 of the National Defense Authorization
Act for Fiscal Year 2012 is necessary to inform Congress on
options to protect the United States homeland against the
evolving ballistic missile threat, including potential
options prior to the deployment of Phase 4 of the European
Phased Adaptive Approach to missile defense; and
(2) the Secretary of Defense should comply with the
requirements of section 233 of the National Defense
Authorization Act for Fiscal Year 2012 by submitting the
homeland defense hedging policy and strategy report to
Congress.

amendment no. 2971

(Purpose: To express the sense of the Senate on the protection of
Department of Defense airfields, training airspace, and air training
routes)

At the end of subtitle H of title X, add the following:

SEC. 1084. SENSE OF THE SENATE ON PROTECTION OF DEPARTMENT OF
DEFENSE AIRFIELDS, TRAINING AIRSPACE, AND AIR
TRAINING ROUTES.

It is the sense of the Senate that--
(1) Department of Defense airfields, training airspace, and
air training routes are national treasures that must be
protected from encroachment;
(2) placement or emplacement of obstructions near or on
Department of Defense airfields, training airspace, or air
training routes has the potential of increasing risk to
military aircraft and personnel as well as impacting training
and readiness; and
(3) the Department of Defense should develop comprehensive
rules and regulations to address construction and use of land
in close proximity to Department of Defense airfields,
training areas, or air training routes to ensure
compatibility with military aircraft operations.

amendment no. 2986

(Purpose: To require contractors to notify small business concerns that
they have included in offers relating to contracts let by Federal
agencies)

At the end of subtitle E of title VIII, add the following:

SEC. ___. SUBCONTRACTOR NOTIFICATIONS.

Section 8(d) of the Small Business Act (15 U.S.C. 637(d))
is amended by adding at the end the following:
``(13) Notification Requirement.--An offeror with respect
to a contract let by a Federal agency that is to be awarded
pursuant to the negotiated method of procurement that intends
to identify a small business concern as a potential
subcontractor in the offer relating to the contract shall
notify the small business concern that the offeror intends to
identify the small business concern as a potential
subcontractor in the offer.
``(14) Reporting by Subcontractors.--The Administrator
shall establish a reporting mechanism that allows a
subcontractor to report fraudulent activity by a contractor
with respect to a subcontracting plan submitted to a
procurement authority under paragraph (4)(B).''.

amendment no. 2989

(Purpose: To extend the authority of the Secretary of Veterans Affairs
and the Secretary of Labor to carry out a program of referral and
counseling services to veterans at risk of homelessness who are
transitioning from certain institutions)

At the end of subtitle H of title X, add the following:

SEC. 1084. EXTENSION OF AUTHORITIES TO CARRY OUT A PROGRAM OF
REFERRAL AND COUNSELING SERVICES TO VETERANS AT
RISK OF HOMELESSNESS WHO ARE TRANSITIONING FROM
CERTAIN INSTITUTIONS.

Section 2023(d) of title 38, United States Code, is amended
by striking ``September 30, 2012'' and inserting ``September
30, 2013''.

amendment no. 3085

(Purpose: To require additional elements in the plan on the
rationalization of cyber networks and cyber personnel of the Department
of Defense)

On page 306, between lines 2 and 3, insert the following:
(3) Additional elements.--In developing the plan required
by paragraph (1), the Secretary shall also--
(A) identify targets for the number of personnel to be
reassigned to tasks related to offensive cyber operations,
and the rate at which such personnel shall be added to the
workforce for such tasks; and
(B) identify targets for use of National Guard personnel to
support cyber workforce rationalization and the actions taken
under subsection (a).

amendment no. 3110

(Purpose: To require a report on the balances carried forward by the
Department of Defense at the end of fiscal year 2012)

At the end of subtitle A of title X, add the following:

SEC. 1005. REPORT ON BALANCES CARRIED FORWARD BY THE
DEPARTMENT OF DEFENSE AT THE END OF FISCAL YEAR
2012.

Not later than 180 days after the date of the enactment of
this Act, the Secretary of Defense shall submit to Congress,
and publish on the Internet website of the Department of
Defense available to the public, the following:
(1) The total dollar amount of all balances carried forward
by the Department of Defense at the end of fiscal year 2012
by account.
(2) The total dollar amount of all unobligated balances
carried forward by the Department of Defense at the end of
fiscal year 2012 by account.
(3) The total dollar amount of any balances (both obligated
and unobligated) that have been carried forward by the
Department of Defense for five years or more as of the end of
fiscal year 2012 by account.

amendment no. 3166

(Purpose: To require a report on the future of family support programs
of the Department of Defense)

At the end of subtitle G of title V, add the following:

SEC. 577. REPORT ON FUTURE OF FAMILY SUPPORT PROGRAMS OF THE
DEPARTMENT OF DEFENSE.

(a) Report Required.--Not later than 180 days after the
date of the enactment of this Act, the Secretary of Defense
shall submit to the congressional defense committees a report
on the anticipated future of the family support programs of
the Department of Defense during the five-year period
beginning on the date of the submittal of the report as end
strengths for the Armed Forces are reduced and the Armed
Forces are drawn down from combat operations in Afghanistan.
(b) Elements.--The report required by subsection (a) shall
include the following:
(1) A description of the current family support programs of
each of the Armed Forces and the Department of Defense,
including the name, scope and intended purpose of each
program.
(2) An assessment of the current costs of the family
support programs covered by paragraph (1), and an estimate of
the costs of anticipated family support programs of the
Department over the period covered by the report.
(3) An assessment of the costs and other consequences
associated with the elimination or reduction of any current
family support programs of the Department over the period
covered by the report.
(4) An assessment by the Secretary of the Army of the
Family Readiness Support Assistant program, and a description
of any planned or anticipated changes to that program over
the period covered by the report.

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amendment no. 2981

(Purpose: To prohibit the issuance of a waiver for commissioning or
enlistment in the Armed Forces for any individual convicted of a felony
sexual offense)

At the end of subtitle C of title V, add the following:

SEC. 526. PROHIBITION ON WAIVER FOR COMMISSIONING OR
ENLISTMENT IN THE ARMED FORCES FOR ANY
INDIVIDUAL CONVICTED OF A FELONY SEXUAL
OFFENSE.

An individual may not be provided a waiver for
commissioning or enlistment in the Armed Forces if the
individual has been convicted under Federal or State law of a
felony offense of any of the following:
(1) Rape.
(2) Sexual abuse.
(3) Sexual assault.
(4) Incest.
(5) Any other sexual offense.

Mr. McCAIN. Mr. President, I thank my colleague.
By the way, did we move to reconsider?
I move to reconsider the vote.
Mr. LEVIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. McCAIN. Mr. President, briefly I was just going over the list of
amendments that have been filed. I urge my colleagues who want those
amendments considered to come over and state their intention and we
will move forward with the amendments. I keep hearing from my staff
this Senator is not ready yet, that Senator is not ready yet. I hope
they come over, we get these amendments in order and we will dispose of
them as soon as possible since we are looking at a rather late evening
this evening, and even tomorrow.
We need to move these amendments. I hope my colleagues will cooperate
by coming over prepared to offer those amendments.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. The Senator from West Virginia wishes now to speak on the
Merkley amendment. Then it is our intention to move to a vote on the
Merkley amendment.

AMENDMENT NO. 3096

Amendment No. 3096 would express the Sense of Congress in support of
the President's stated goals for transitioning the security lead to the
Afghanistan and end the U.S. combat mission in Afghanistan by no later
than December 31, 2014. The Sense of Congress supports the goals of:
Accomplishing the President's stated goal of transitioning the lead
responsibility for security to the Government of Afghanistan by mid-
2013; as part of that transition, drawing down U.S. troops to the
minimum level required to meet that goal; continuing the drawdown of
U.S. troop levels at a steady pace through the end of 2014; and ending
``all regular combat operations'' by U.S. troops by not later than the
end of 2014, and earlier to the extent consistent with a safe and
orderly drawdown of U.S. troops in Afghanistan.
The Merkley amendment is consistent with President's plans for
drawing down U.S. troops in Afghanistan, and it is consistent with our
best chances for success in securing Afghanistan.
It expresses this body's support for the President's transition goals
which include the handover to Afghan security forces of primary
responsibility for security throughout Afghanistan by mid-2013 and the
completion of the security transition process by the end of 2014.
Transitioning to Afghan forces in the lead is the roadmap to security
in Afghanistan. It challenges the Taliban narrative that commanders
need to defend Afghanistan from foreign troops seeking to occupy their
country. As Afghan officials recently told me, when they realize they
are fighting their fellow Afghans in the Afghan Army, some mid-level
Taliban commanders have decided to put aside their arms and seek to re-
integrate into Afghan society.
The Afghan people want to see their own Afghan Army soldiers and
Afghan police personnel providing security for their communities. A
recent public opinion poll in Afghanistan found that the overwhelming
majority of the Afghan people have moderate or high confidence in the
Afghan Army--93 percent. The Afghan police are also gaining the
confidence of the Afghan people--82 percent confidence.
Afghan security forces have shown they are willing to fight. So far
this year, Afghan soldiers and police have suffered more casualties--
wounded and killed--than have U.S. and coalition forces.
As Afghan security forces assume more and more responsibility for the
security lead between now and the end of 2014, NATO and coalition
forces will gradually step back into a supporting role and then an
overwatch role.
The Merkley amendment reaffirms the President's plan to end U.S.
combat operations in Afghanistan by not later than the end of 2014.
This is also what was agreed by coalition partners at the NATO Summit
in Chicago in May, when the U.S. and its allies declared, ``By the end
of 2014, when the Afghan Authorities will have full security
responsibility, the NATO-led combat mission will end.'' They also
agreed to begin planning a new post-2014 training mission, which ``will
not be a combat mission.''
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. MANCHIN. Mr. President, I rise in support of the amendment of my
colleague, Senator Merkley from Oregon, his amendment on Afghanistan. I
know we all have good ideas. We all have input here. We all have our
own personal opinions. But it is time to bring our troops home from
Afghanistan. They have been there since October 7, 2001. They have
defeated al-Qaida, they have killed Osama bin Laden, and it is time to
bring them home.
Mr. President, 66,000 American combat troops still remain in
Afghanistan. President Obama plans to reduce that number by ``a steady
pace'' until they are moved completely out by the end of 2014. I would
prefer a faster pace, as many of my colleague would, but as long as it
did not jeopardize the safety of troops, because I think that is the
most important thing we do. After all, the war has already surpassed
the Vietnam war, your area and mine, Mr. President, as the longest in
American history. It has already cost us dearly; more than 2,000
American troops have died for the cause and many thousands more have
been maimed and more than $500 billion has been spent just in
Afghanistan.
Even so, I support the bipartisan amendment sponsored by Senator
Merkley. It backs the President's current plan to end combat operations
in Afghanistan by the end of 2014, but I support it because it also
calls for a quicker transition of security operations from U.S. forces
to Afghan security forces. Instead of the end of 2014, the amendment
urges the transition to take place in the summer of 2013, this coming
year. That, hopefully, would bring a quicker end to the U.S.
involvement in combat in Afghanistan. This amendment merely expresses
the sense of the Senate. It is not binding on President Obama and it
will not affect any negotiations between Washington and Kabul on
whether a residual force of U.S. military advisers in Afghanistan would
be there after 2014.
U.S. forces went to Afghanistan in pursuit of those who planned and
ordered the September 11 terrorist attacks on the United States that
killed over 3,000 of our citizens. With valor and courage they drove
from power the Taliban, which had given bin Laden a base from which he
could launch horrific attacks on innocent American civilians. They
captured, killed, or brought to justice the leader of al-Qaida and
eventually they tracked down bin Laden himself and made sure he would
never, ever harm another American.
After more than 10 years, more than 1,900 American lives, and more
than $500 billion, it is time to bring our warriors home to a hero's
welcome, time to focus our resources on rebuilding America, not on
rebuilding Afghanistan. I have said many times on this floor, if you
help us build a new road or bridge in West Virginia, help us build a
school for our children, we will not blow it up or burn it down.
It is time to help rebuild America for this great country and bring
our heroes back to a hero's welcome.
Mr. REID. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. LEVIN. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.

[[Page S7152]]

The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. Mr. President, we are now going to proceed to a vote on
the Merkley amendment. As I indicated, the amendment expresses the
support of this body for the transition goals of the President,
including the handover to Afghan security forces of primary
responsibility for security throughout Afghanistan by mid-2013, the
completion of the security transition process by the end of 2014--and
of course that has to do with the completion and transition. That is
not necessarily by any means a withdrawal of all troops but it is the
intent that all combat forces be withdrawn by the end of 2014. I
emphasize it is a sense-of-the-Senate resolution.
After the disposition of the Merkley amendment, we then intend to
move to the Whitehouse amendment. The Whitehouse amendment has been
cleared by the chairman and ranking member of the committee of
jurisdiction. However, there is a desire to debate and have a rollcall
on that amendment. We are asking Senator Whitehouse to be prepared
immediately after this vote to call up formally and debate his
amendment and any opponent or opponents of the amendment to be prepared
to debate it at that time. So it is our intent--and I ask unanimous
consent--that immediately following the vote on the pending Merkley
amendment, we then move to the Whitehouse amendment, and following the
disposition of the Whitehouse amendment we then move to the Coburn
amendment No. 3109, which will require debate, and, hopefully, we can
work out a time agreement with Senator Coburn during this vote.

Finally, we are urging Senators who have amendments we have not yet
addressed that they intend to press, or hope they can press, to meet
with us during this vote so we can continue to make progress on this
bill. We will be in tomorrow unless by some wonderful events we are
able to finish this bill tonight.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, I agree with the unanimous consent
request----
Mr. Levin addressed the Chair.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. I am sorry, I say to my friend from Arizona. We have to
withdraw that unanimous consent request on amendment No. 3109 at this
time. I want to try to see what the problem is. There is an objection
to my request on this side. We are going to try to work out those
objections during this rollcall vote.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. I have to object on this side. Senator Coburn wants the
same privilege every Senator has; that is, to bring up his amendment.
If someone objects to that, I hope that Senator will come down and
object in person because this is holding up the progress of the bill.
So if there is a Whitehouse amendment that is agreed to, then a Coburn
amendment certainly should be allowed as well.
So we have to object to the unanimous consent request. Hopefully,
during the vote on the Merkley amendment we can work out some
agreement.
Mr. LEVIN. We understand Senator Merkley is on his way and wishes to
speak for a minute on his own amendment, so I note the absence of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. MERKLEY. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. MERKLEY. Mr. President, I rise to speak in favor of my amendment
No. 3096 to express the sense of Congress on the accelerated transition
of U.S. combat and military security operations for the Government of
Afghanistan.
Our President has laid out a course of action that involves putting
Afghan troops in charge of the operation in Afghanistan. This amendment
fully supports the schedule the President has laid out. Furthermore, it
calls upon the President to explore every opportunity to see if that
schedule can be accelerated; that we can, with security for our troops
and appropriateness for our mission, withdraw at a faster pace.
The two main objectives in Afghanistan were to take out the al-Qaida
training camps and to proceed to pursue those responsible for 9/11. We
have effectively pursued those missions. Al-Qaida is now much stronger
around the rest of the world. A counterterrorism strategy that is
appropriate in the rest of the world is appropriate in Afghanistan and
it should be pursued. But the newly adopted mission of nation building
in Afghanistan has gone terribly off the track and put our troops at
great risk. We need to endorse the President's strategy and end this
war--the longest war the United States has ever experienced.
I ask for the support of my colleagues.
I yield the floor.
The PRESIDING OFFICER. Is there further debate on the amendment?
If not, the question is on agreeing to the amendment.
Mr. MERKLEY. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second? There appears to
be a sufficient second.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from Missouri (Mrs.
McCaskill) and the Senator from Oregon (Mrs. Wyden) are necessarily
absent.
Mr. KYL. The following Senators are necessarily absent: the Senator
from South Carolina (Mr. DeMint), the Senator from North Carolina (Mr.
Heller), and the Senator from Illinois (Mr. Kirk).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 62, nays 33, as follows:

[Rollcall Vote No. 210 Leg.]

YEAS--62

Akaka
Baucus
Begich
Bennet
Bingaman
Blumenthal
Boxer
Brown (MA)
Brown (OH)
Cantwell
Cardin
Carper
Casey
Cochran
Collins
Conrad
Coons
Corker
Durbin
Feinstein
Franken
Gillibrand
Grassley
Hagan
Harkin
Hoeven
Inouye
Johnson (SD)
Kerry
Klobuchar
Kohl
Landrieu
Lautenberg
Leahy
Lee
Levin
Lugar
Manchin
Menendez
Merkley
Mikulski
Moran
Murray
Nelson (NE)
Nelson (FL)
Paul
Reed
Reid
Rockefeller
Sanders
Schumer
Shaheen
Snowe
Stabenow
Tester
Thune
Toomey
Udall (CO)
Udall (NM)
Warner
Webb
Whitehouse

NAYS--33

Alexander
Ayotte
Barrasso
Blunt
Boozman
Burr
Chambliss
Coats
Coburn
Cornyn
Crapo
Enzi
Graham
Hatch
Hutchison
Inhofe
Isakson
Johanns
Johnson (WI)
Kyl
Lieberman
McCain
McConnell
Murkowski
Portman
Pryor
Risch
Roberts
Rubio
Sessions
Shelby
Vitter
Wicker

NOT VOTING--5

DeMint
Heller
Kirk
McCaskill
Wyden
The amendment (No. 3096) was agreed to.
Mr. LEVIN. Mr. President, I move to reconsider the vote.
Mr. McCAIN. I move to lay that motion upon the table.
The motion to lay upon the table was agreed to.
Mr. LEVIN. Mr. President, what we wish to do now is move to Senator
Blumenthal's amendment which has been cleared and I believe can be
voice-voted. I think that is the current situation.
Then as soon as that is done, I hope we will have an announcement as
to where we go next. With the cooperation of one Senator, whom I do not
see on the floor, we may be able to go to Senator Whitehouse's
amendment, but I cannot quite announce that yet because we have to find
that Senator and make sure that is not objected to. I would hope the
chair would now recognize Senator Blumenthal.
The PRESIDING OFFICER. The Senator from Connecticut.

Amendment No. 3124, as Modified

Mr. BLUMENTHAL. Mr. President, I thank my distinguished colleague,
the chairman of the Armed Services Committee, as well as the ranking
member, Senator McCain, for their leadership on this issue and ask
unanimous consent that my amendment 3124 be made

[[Page S7153]]

pending, as modified with the changes that are at the desk.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will report.
The legislative clerk read as follows:

The Senator from Connecticut [Mr. Blumenthal] proposes an
amendment numbered 3124, as modified.

The amendment No. 3124, as modified, is as follows:

At the end of title VIII, add the following:

Subtitle F--Ending Trafficking in Government Contracting

SEC. 891. SHORT TITLE.

This subtitle may be cited as the ``End Trafficking in
Government Contracting Act of 2012''.

SEC. 892. DEFINITIONS.

In this subtitle:
(1) Commercial sex act.--The term ``commercial sex act''
has the meaning given the term in section 22.1702 of the
Federal Acquisition Regulation (or any similar successor
regulation) .
(2) Executive agency.--The term ``executive agency'' has
the meaning given the term in section 133 of title 41, United
States Code.
(3) Subcontractor.--The term ``subcontractor'' means a
recipient of a contract at any tier under a grant, contract,
or cooperative agreement.
(4) Subgrantee.--The term ``subgrantee'' means a recipient
of a grant at any tier under a grant or cooperative
agreement.
(5) United states.--The term ``United States'' has the
meaning provided in section 103(12) of the Trafficking
Victims Protection Act of 2000 (22 U.S.C. 7102(12)).

SEC. 893. CONTRACTING REQUIREMENTS.

(a) In General.--Section 106(g) of the Trafficking Victims
Protection Act of 2000 (22 U.S.C. 7104(g)) is amended by
striking ``if the grantee or any subgrantee,'' and all that
follows through the period at the end and inserting the
following: ``or take any of the other remedial actions
authorized under section 895(c) of the End Trafficking in
Government Contracting Act of 2012, if the grantee or any
subgrantee, or the contractor or any subcontractor, engages
in, or uses labor recruiters, brokers, or other agents who
engage in--
``(i) severe forms of trafficking in persons;
``(ii) the procurement of a commercial sex act during the
period of time that the grant, contract, or cooperative
agreement is in effect;
``(iii) the use of forced labor in the performance of the
grant, contract, or cooperative agreement, or
``(iv) acts that directly support or advance trafficking in
persons, including the following acts:

``(I) Destroying, concealing, removing, confiscating, or
otherwise denying an employee access to that employee's
identity or immigration documents.
``(II) Failing to pay return transportation costs to an
employee upon the end of employment, unless--

``(aa) exempted from the duty to repatriate by the Federal
department or agency providing or entering into the grant,
contract, or cooperative agreement; or
``(bb) the employee is a victim of human trafficking
seeking victim services or legal redress in the country of
employment or a witness in a human trafficking enforcement
action.

``(III) Soliciting a person for the purpose of employment,
or offering employment, by means of materially false or
fraudulent pretenses, representations, or promises regarding
that employment.
``(IV) Charging recruited employees unreasonable placement
or recruitment fees, such as fees equal to or greater than
the employee's monthly salary, or recruitment fees that
violate the laws of the country from which an employee is
recruited.
``(V) Providing or arranging housing that fails to meet the
host country housing and safety standards.''.

(b) Effective Date.--The amendment made by subsection (a)
shall take effect 90 days after the date of the enactment of
this Act.

SEC. 894. COMPLIANCE PLAN AND CERTIFICATION REQUIREMENT.

(a) Requirement.--The head of an executive agency may not
provide or enter into a grant, contract, or cooperative
agreement if the estimated value of the services required to
be performed under the grant, contract, or cooperative
agreement outside the United States exceeds $500,000, unless
a duly designated representative of the recipient of such
grant, contract, or cooperative agreement certifies to the
contracting or grant officer prior to receiving an award and
on an annual basis thereafter, after having conducted due
diligence, that--
(1) the recipient has implemented a plan to prevent the
activities described in section 106(g) of the Trafficking
Victims Protection Act of 2000 (22 U.S.C. 7104(g)), as
amended by section 3, and is in compliance with that plan;
(2) the recipient has implemented procedures to prevent any
activities described in such section 106(g) and to monitor,
detect, and terminate any subcontractor, subgrantee, or
employee of the recipient engaging in any activities
described in such section; and
(3) to the best of the representative's knowledge, neither
the recipient, nor any subcontractor or subgrantee of the
recipient or any agent of the recipient or of such a
subcontractor or subgrantee, is engaged in any of the
activities described in such section.
(b) Limitation.--Any plan or procedures implemented
pursuant to subsection (a) shall be appropriate to the size
and complexity of the grant, contract, or cooperative
agreement and to the nature and scope of its activities,
including the number of non-United States citizens expected
to be employed.
(c) Disclosure.--The recipient shall provide a copy of the
plan to the contracting or grant officer upon request, and as
appropriate, shall post the useful and relevant contents of
the plan or related materials on its website and at the
workplace.
(d) Guidance.--The President, in consultation with the
Secretary of State, the Attorney General, the Secretary of
Defense, the Secretary of Labor, the Secretary of Homeland
Security, the Administrator for the United States Agency for
International Development, and the heads of such other
executive agencies as the President deems appropriate, shall
establish minimum requirements for contractor plans and
procedures to be implemented pursuant to this section.
(e) Regulations.--Not later than 270 days after the date of
the enactment of this Act, the Federal Acquisition Regulation
shall be amended to carry out the purposes of this section.
(f) Effective Date.--The requirements under subsection (a)
and (c) shall apply to grants, contracts, and cooperative
agreements entered into on or after the date that is 90 days
after the Federal Acquisition Regulation is amended pursuant
to subsection (e).

SEC. 895. MONITORING AND INVESTIGATION OF TRAFFICKING IN
PERSONS.

(a) Referral and Investigation.--
(1) Referral.--If the contracting or grant officer of an
executive agency for a grant, contract, or cooperative
agreement receives credible information that a recipient of
the grant, contract, or cooperative agreement; any subgrantee
or subcontractor of the recipient; or any agent of the
recipient or of such a subgrantee or subcontractor, has
engaged in an activity described in section 106(g) of the
Trafficking Victims Protection Act of 2000 (22 U.S.C.
7104(g)), as amended by section 893, including a report from
a contracting officer representative, an auditor, an alleged
victim or victim's representative, or any other credible
source, the contracting or grant officer shall promptly refer
the matter to the agency's Office of Inspector General for
investigation. The contracting officer may also direct the
contractor to take specific steps to abate an alleged
violation or enforce the requirements of a compliance plan
implemented pursuant to section 894.
(2) Investigation.--Where appropriate, an Inspector General
who receives credible information that a recipient of the
grant, contract, or cooperative agreement; any subgrantee or
subcontractor of the recipient; or any agent of the recipient
or of such a subgrantee or subcontractor, has engaged in an
activity described in section 106(g) of the Trafficking
Victims Protection Act of 2000 (22 U.S.C. 7104(g)), as
amended by section 893, pursuant to a referral under
paragraph (1) or otherwise, shall promptly initiate an
investigation of the matter. In the event that an Inspector
General does not initiate an investigation, the Inspector
General shall provide an explanation for the decision not to
investigate.
Mr. BLUMENTHAL. Very simply, this amendment involves commonsense
reforms that will ensure the performance of overseas contracts, paid
for by our taxpayers, involving money in this very Defense budget,
consistent with the values that we hold dear as Americans.
The Department of Defense has a special responsibility to lead in
preventing human trafficking overseas, as this amendment would do. It
is not only a matter of humane and moral values, it is a matter of
getting value for the dollars we spend in protecting our national
security.
The United States has and ought to have a zero-tolerance policy
against government employees and contractor personnel engaging in any
form of human trafficking. These values are transcendent of party
lines, of any other interests. I am very proud to offer this amendment,
in fact, with strong support across the aisle, led by my colleague
Senator Portman who has joined me in forming a human trafficking caucus
to lead the way on these issues. This amendment is the result of
efforts we have led and very simply represents the most comprehensive
legislative effort ever undertaken in the Congress to stamp out human
trafficking in overseas contracting.
I am happy to yield to my colleague from Ohio, Senator Portman.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. PORTMAN. Mr. President, I am pleased to join my colleague from
Connecticut in offering this amendment, which is modeled on the
bipartisan legislation we introduced in March along

[[Page S7154]]

with a number of Senators on both sides of the aisle.
We also recently joined to form a Senate caucus to end human
trafficking, and I appreciate the chair and ranking member today for
allowing this amendment to move forward.
The aim of this amendment is pretty simple. This amendment ensures
that our contingency contracting dollars are spent in a manner that is
consistent, as Senator Blumenthal said, with our deeply held values as
a country. This is particularly important in the context of wartime
contracting and reconstruction work.
This amendment comes from the work that both DOD and State Department
IGs have done. The inspectors general have told us we lack sufficient
monitoring to have the kind of visiblity we need under the labor
practices by our contractors and subcontractors who rely on a lot of
third-party nationals to do overseas work.
It also comes from the Wartime Contracting Commission, which has
reported what is described as evidence of the recurrent problem of
trafficking in persons by labor brokers or subcontractors of
contingency contractors. The report concluded that existing
prohibitions on such trafficking have failed to suppress it.
One of the commission members, a former Reagan and Bush
administration defense official, testified before our committee, saying
those findings were, in his assessment, just the tip of the iceberg. So
I think this legislation is appropriate. It directly affects this issue
that has been raised now by the IG and by the Wartime Contracting
Commission. This is a commonsense approach to it.
Broadly defined, we believe this will help to deal with the human
trafficking issue that has been identified. It deals with recruiting
workers to leave their home countries based on fraudulent promises,
confiscating passports, limiting the ability of workers to return home,
charging workers so-called recruitment fees that consume more than a
month's salary, just to name some of the abuses that have been
identified.
I think it should be clear that the overwhelming majority of these
contractors and subcontractors are law abiding, but we need to be sure
these abusive labor practices are dealt with. This legislation will do
so. I thank my colleague for raising it today. I am proud to join him
in cosponsoring the legislation.
Madam President, I yield the floor.
The PRESIDING OFFICER (Mrs. Shaheen). The Senator from Michigan.
Mr. LEVIN. Madam President, I think we are now willing to proceed to
disposition on the Blumenthal amendment. I don't know if anyone wants
to speak further on that amendment.
The PRESIDING OFFICER. Is there further debate?
If not, the question is on agreeing to the amendment.
The amendment No. 3124, as modified, was agreed to.
Mr. LEVIN. Madam President, I move to reconsider the vote.
Mr. McCAIN. I move to lay that motion on the table.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. INHOFE. I ask unanimous consent to set the pending amendment
aside for the consideration of amendment No. 2972.
The PRESIDING OFFICER. Without objection, the Senator----
Mr. LEVIN. Madam President, I wonder if we could ask unanimous
consent at this point to take up the Inhofe amendment. We know of no
objection to it. Rather than setting any amendment aside, just simply
send it to the desk.
Is the amendment at the desk? Just call up the amendment, if the
Senator would.

Amendment No. 2972

Mr. INHOFE. Madam President, I call up amendment No. 2972.
The PRESIDING OFFICER. Without objection, the pending amendment is
set aside.
The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Oklahoma (Mr. Inhofe) proposes an
amendment No. 2972.

Mr. INHOFE. I ask unanimous consent that further reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

(Purpose: To express the sense of Congress that the bugle call commonly
known as ``Taps'' should be designated as the National Song of Military
Remembrance)

At the end of subtitle H of title X, add the following:

SEC. 1084. SENSE OF CONGRESS THAT THE BUGLE CALL COMMONLY
KNOWN AS TAPS SHOULD BE DESIGNATED AS THE
NATIONAL SONG OF MILITARY REMEMBRANCE.

It is the sense of Congress that the bugle call commonly
known as ``Taps'' should be designated as the National Song
of Military Remembrance.

Mr. INHOFE. Madam President, this is something that I know will be
accepted by both sides, by every Member in here. It is a request by all
the associations, the veterans and all the others. It is something I
wasn't familiar with until fairly recently, and that is, in July of
1862, following the Seven Days Battles, Union GEN Daniel Butterfield
and bugler Oliver Wilcox Norton created ``Taps'' at Berkeley Plantation
in Virginia.
This is something we are all familiar with, those of us who served in
the military. We know what ``Taps'' is. It is a big deal to a lot of
people, but it has never had an official designation. We have an
amendment now that would be a sense-of-the-Senate that would designate
the bugle call commonly known as ``Taps'' to be designated as a
national military song of military remembrance. The reason I think it
is significant to do it is it raises the song known as ``Taps'' to a
national level of significance, specifically for the military veterans
as a tribute when played during military funerals and ceremonies. This
is a request of various veterans organizations, and I would ask that it
be adopted.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. We know of no objection to the amendment.
The PRESIDING OFFICER. Is there further debate on the amendment?
If not, the question is on agreeing to the amendment.
The amendment (No. 2972) was agreed to.
Mr. LEVIN. Mr. President, I move to reconsider the vote.
Mr. McCAIN. I move to lay the motion on the table.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Madam President, I would now ask unanimous consent that
Senator Udall of Colorado be recognized for 5 minutes to speak as
though in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Colorado.
Mr. UDALL of Colorado. Madam President, I thank the chairman and
ranking member of the Armed Services Committee for the recognition. I
am a proud member of that committee, and I am also a member of the
Intelligence Committee. From those vantage points, I am well aware of
the threats that face our country.
Our military and our intelligence communities have to be prepared to
counter threats from a wide range of enemies and bad actors. As we all
know, our national security community is decisively engaged against
those who would do us harm. When we capture those who are plotting
against us, we are swiftly bringing them to justice by trying and
convicting those terrorists in civilian courts and, when appropriate,
in military commissions.
This is a flexible strategy that has empowered our terrorism
community to help keep Americans safe since 9/11, and those brave men
and women who spend every waking hour defending this country have been
successfully using our laws to pursue terrorists around the globe. But
last year Congress changed some of those laws, against the wishes of
our military and intelligence communities. Those detainee provisions
last year suggest that our military should shift significant resources
away from their mission and to instead act as both a domestic law
enforcement agency and jailer with respect to terrorist suspects. They
also call into question the principles we as Americans hold dear,
because they could be interpreted as allowing the military to capture
and indefinitely detain American citizens on U.S. soil without trial.
I joined our highest ranking national security officials in warning
my colleagues about the dangerous change

[[Page S7155]]

that such policies would make and I urge us not to pass them. We have
to get our detainee and counterterrorism policies right, but
unfortunately I believe the policies that were enacted last year
complicate our capacity to prosecute the war on terror and in the
process erode our Nation's constitutional principles, both of which
concern all of us.
I have been working with the administration to ensure that those
detention policies are not harmfully interpreted, but the law itself
remains a problem. Several of my colleagues, including the Senator from
Kentucky and the chairwoman of the Senate Intelligence Committee,
Senator Feinstein, have suggested changes to the law that will help
repair the flawed policies enacted last year.
I have also crafted my own legislation working with the ranking
member on the House Armed Services Committee, Congressman Adam Smith
from Washington, to repair some of the harm that I believe was done in
last year's NDAA. I filed that bill to this year's NDAA as amendment
No. 3115, along with the chairman of the Senate Judiciary Committee,
Senator Leahy.
Senators Feinstein and Paul have a slightly similar but different
approach, created as a result of the detainee provisions passed last
year. There are efforts under way to assure that whatever path we take
forward is supported by the greatest numbers possible, and I look
forward to being part of those important discussions.
I know we addressed this issue in part last year, but in speaking
with other Members I know there is a renewed interest in getting our
detention policies right, both from the view of counterterrorism
effectiveness and constitutional protection. I believe both security
and freedom are critically important, and I don't think we have to
choose one over the other.
I thank my colleagues for remaining diligent in addressing the
detention policies that remain a concern, because Americans must remain
engaged on this issue.
Madam President, I yield the floor, and I note the absence of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. LEVIN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. Madam President, I ask unanimous consent that Senator
Thune be allotted 7 minutes to speak on an amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
The PRESIDING OFFICER. The Senator from South Dakota.
Mr. THUNE. Madam President, I am working with the managers of the
bill to try to address concerns they might have on an amendment I have
filed at the desk and hope to get accepted. But I wish to speak to it
now, if I might.
Essentially, the amendment is just a sense of Congress regarding the
Federal Government's use of spectrum, and, in particular, spectrum use
of the Department of Defense. Spectrum is a very important resource to
the Department of Defense, and it is a very important resource to the
private sector.
Unfortunately, spectrum is becoming a scarcer and scarcer resource,
and it is increasingly necessary for there to be better and more
efficient management of this scarce resource. Demand for spectrum is
sharply rising due to the growing advanced network of communication
devices that rely on spectrum to transmit and receive information. The
rise of mobile devices, such as smart phones and tablets, the iPhone
and iPad over the past few years, are the reason for this sharp rise in
demand for spectrum.
According to a recent study by Cisco, last year's mobile data traffic
was eight times the size of the entire global Internet in 2000. The
Cisco study predicts that global mobile data traffic will increase
eighteenfold between 2011 and 2016 at a compound annual growth rate of
78 percent, reaching 10.8 exabytes per month by 2016.
The rise in the smart phone and the tablet has contributed
significantly to our Nation's economy. The Nation's mobile
communications industry, by one estimate, directly or indirectly
supports 3.8 million jobs, contributing $195.5 billion to the U.S.
gross domestic product, and driving $33 billion in productivity
improvements in 2011.
With all that has gone wrong with our economy over the past several
years, it is important that we as policymakers nurture the growth of
the economy, especially where growth is already happening and, in fact,
is exploding. We need to enact smart progrowth policies relating to
spectrum. I know the spectrum issue isn't easy to understand or to
manage, but it is crucial we seek to better manage this scarce
resource, and where it is possible to allocate more of the scarce
resource to the private sector where it can create jobs and grow the
economy.
That is the reasoning and purpose behind my amendment. The Federal
Government controls the vast amount of spectrum for its own use. It is
probably not all as efficiently managed as it could be. Undoubtedly, a
sufficient amount of this spectrum could be made available to help
create jobs and grow the economy.
One of the low-hanging fruits we can deal with almost immediately is
the band of spectrum known as the 1755-to-1780 megahertz band. This
spectrum is particularly well suited for reallocation to commercial use
because it is identified internationally for commercial mobile services
and is used for that purpose throughout most of the world. This 1755-
to-1780 band is also immediately adjacent to existing domestic wireless
spectrum and would fit seamlessly into the current mobile broadband
spectrum portfolio allowing for more immediate equipment development
and deployment.
There is no reason for further delay in the reallocation of the 1755-
to-1780 band for commercial use. This band was identified for
commercial broadband use internationally at the 2000 World Radio
Communications Conference over 10 years ago. Despite the international
designation of the band for advanced wireless use, it is still
allocated domestically for government use, heavily by DOD. The National
Telecommunications and Information Administration, or NTIA, the agency
which is responsible for all government spectrum, issued studies and
reports in 2001, 2002, and 2010 that addressed use of the band for
commercial use but took no action. The spectrum was also identified in
the National Broadband Plan as potentially available for reallocation.
In March 2012, NTIA released its latest report assessing the
availability of the band. Unfortunately, the 2012 NTIA report contains
no firm deadline for action and no clear path to making the band
available for commercial use. It contemplates a potential 10-year
timeframe and potential shared use of spectrum but defers any formal
recommendation regarding reallocation until the completion of still
further study.
Had NTIA acted when the first band was allocated internationally for
advanced wireless use, the band might already be available for
commercial services. Without a firm deadline DOD is unlikely to agree
to reallocation, and the prospects for reallocating the 1755-to-1780
megahertz band for commercial use remain slim.
That is why my amendment urges the President to direct Federal users
on that 1755-to-1780 band to prepare, not later than May 31, 2013, a
reallocation plan that includes the cost of relocating from this band,
and urges the Federal Communications Commission to reallocate this band
to commercial use.
I hasten to add that it is important the cost of relocating the band
should be verifiable and transparent. The report for the underlying
bill requires the Government Accountability Office to determine if the
cost of vacating or sharing the 1755-to-1780 band is sufficiently
captured in estimates. I look forward to the GAO's report on this
issue.
There are those who may voice concerns about how this impacts our
national security. I take a back seat to no one in being pro-military.
I sat on the Armed Services Committee for 6 years. I have an Air Force
Base in my State that I care deeply about. It is important to
understand that existing law provides ample protection to DOD for the
relocation to replacement spectrum.
There are those concerned about the cost to DOT to relocate. The law
requires DOT relocation costs be covered

[[Page S7156]]

by the Spectrum Relocation Fund, which is funded through the proceeds
of the auction of the band to commercial licensees. If the auction does
not raise 110 percent of the relocation cost, the auction would be
canceled, assuring that incumbent users are made whole. Moreover, as
part of the U.S. Middle Class Tax Relief and Job Creation Act of 2012,
Congress expanded the scope of funding from the relocation fund to
include the cost of planning for relocation.
I am confident the Pentagon and the larger Federal Government can
more efficiently manage its spectrum holdings and make available
additional spectrum to help grow our economy and create jobs.
I hope, Madam President, that we can work this out to have it
included as part of the Defense authorization bill. I certainly believe
it is an amendment that is important with regard to the issue I
mentioned, which is the reallocation and relocation of spectrum in this
country to allow for multiple uses--obviously, important private
commercial uses--out there and an enormous demand, a demand that is
adding significantly to our economy and creating jobs for literally
thousands and millions of Americans.
Madam President, I yield the floor.
Mr. LEVIN. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. LEVIN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. Madam President, I ask unanimous consent that we proceed
to the Gillibrand amendment, that there be 20 minutes debate on the
amendment, and that it be equally divided between Senator Gillibrand
and Senator Coburn.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from New York.

Amendment No. 3058, as Modified

Mrs. GILLIBRAND. Madam President, I call up amendment No. 3058, as
modified.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from New York [Mrs. Gillibrand], for herself,
Mr. Lieberman, Mr. Blumenthal, Mr. Kerry, Mr. Brown of
Massachusetts, Mr. Begich, and Mr. Menendez, proposes an
amendment numbered 3058, as modified.

Mrs. GILLIBRAND. I ask unanimous consent that the reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

At the end of subtitle A of title VII, add the following:

SEC. 704. CERTAIN TREATMENT OF DEVELOPMENTAL DISABILITIES,
INCLUDING AUTISM, UNDER THE TRICARE PROGRAM.

(a) Certain Treatment of Autism.--
(1) In general.--Chapter 55 of title 10, United States
Code, is amended by inserting after section 1077 the
following new section:

``Sec. 1077a. Treatment of autism under the TRICARE program

``(a) In General.--Except as provided in subsection (c),
for purposes of providing health care services under this
chapter, the treatment of developmental disabilities (42
U.S.C. 15002(8)), including autism spectrum disorders shall
include behavioral health treatment, including applied
behavior analysis, when prescribed by a physician.
``(b) Requirements in Provision of Services.--In carrying
out subsection (a), the Secretary of Defense shall ensure
that--
``(1) except as provided by paragraph (2), a person who is
authorized to provide behavioral health treatment is licensed
or certified by a State or accredited national certification
board; and
``(2) if applied behavior analysis or other behavioral
health treatment is provided by an employee or contractor of
a person described in paragraph (1), the employee or
contractor shall meet minimum qualifications, training, and
supervision requirements as set forth by the Secretary who
shall ensure that covered beneficiaries have appropriate
access to care in accordance with best practice guidelines.
``(c) Exclusions.--Subsection (a) shall not apply to the
following:
``(1) Covered beneficiaries under this chapter who are
entitled to hospital insurance benefits under part A of title
XVIII of the Social Security Act.
``(2) Covered beneficiaries under this chapter who are
former members, dependents of former members, or survivors of
any uniformed service not under the jurisdiction of the
Department of Defense.
``(d) Construction With Other Benefits.--(1) Nothing in
this section shall be construed as limiting or otherwise
affecting the benefits otherwise provided under this chapter
to a covered beneficiary who is a beneficiary by virtue of--
``(A) service in the Coast Guard, the Commissioned Corp of
the National Oceanic and Atmospheric Administration, or the
Commissioned Corp of the Public Health Service; or
``(B) being a dependent of a member of a service described
in subparagraph (A).
``(2) Nothing in this section shall be construed as
limiting or otherwise affecting the benefits provided to a
medicare-eligible beneficiary under--
``(A) this chapter;
``(B) part A of title XVIII of the Social Security Act (42
U.S.C. 1395c et seq.); or
``(C) any other law.''.
(2) Clerical amendment.--The table of sections at the
beginning of chapter 55 of such title is amended by inserting
after the item relating to section 1077 the following new
item:

``1077a. Treatment of autism under the TRICARE program.''.

(b) Funding.--
(1) Increase.--The amount authorized to be appropriated for
fiscal year 2013 by section 1406 and available for the
Defense Health Program for Private Sector Care as specified
in the funding table in section 4501 is hereby increased by
$45,000,000, with the amount of the increase to be available
for the provision of care in accordance with section 1077a of
title 10, United States Code (as added by subsection (a)).
(2) Offset.--The amount authorized to be appropriated for
fiscal year 2013 by section 301 for Operation and Maintenance
and available as specified in the funding table in section
4301 is hereby reduced by $45,000,000.

Mrs. GILLIBRAND. Madam President, I rise today on behalf of the
30,000 military families who have loved ones with disabilities,
including those on the autism spectrum. Sadly, thousands of these
Americans suffering from autism and other developmental disabilities
are not receiving the treatment that best practices has determined they
need.
For example, military families with children on the autistic spectrum
are receiving fewer services than their civilian governmental
counterparts across the country, many of whom have been rightfully
aided by laws passed in over 60 percent of our States, representing
over 75 percent of the American population.
Autism places such tremendous strain on our families--health strains,
financial, and emotional. They take such tolls. I want to share briefly
just a couple of the stories I have heard from struggling military
families. They have done everything we have asked of them as a nation,
but now they can't even provide for their children.
One veteran was severely wounded in Iraq while heroically serving his
country. His injuries were such that he was forced to retire. Because
he is retired, his autistic son Shane was no longer able to receive the
applied behavioral therapies that were recommended. The wait list for
the Medicaid waiver services where he lives was 9 years. So Shane's
family had to sell their home to pay the roughly $5,000 per month out
of pocket for the ABA treatment he so desperately needs.
The money is running out for their family, and they do not know what
to do. But they want to do what is best for their son. Without this
relief, we risk allowing brave military families just like this one to
fall through the cracks.
Another story: A marine on Active Duty serving in Iraq and
Afghanistan three times has maxed out all his ABA therapies to treat
his 11-year-old autistic son Joshua. Joshua is nonverbal and his safety
is a key concern for his family. So Joshua is prescribed 35 hours of
ABA therapy per week. Because of the severity of Joshua's symptoms, the
family is basically faced with the impossible decision of either
foregoing the recommended care the doctor has prescribed for their son
or paying these bills out of pocket for as long as they are actually
able.
I don't believe this should ever happen to our military families. I
don't believe it should happen to any child, and that is why I am
introducing my amendment to require TRICARE to cover the recommended
ABA therapies that a doctor prescribes. It would be a matter that is
consistent with the best practices across this country and in the rest
of the Federal Government.
Our children need this kind of support--Shane and Joshua need this
kind

[[Page S7157]]

of support--and we should be standing by our men and women who serve in
the military because they stand by us. Every parent who has a child
with autism or another disability faces challenges to ensure their
child has access to the treatments they require. For these military
families, the challenges are even greater and often compounded by
frequent deployments overseas, the frequent moves to different bases
across State lines, and sometimes significant gaps in their coverage.
Today, TRICARE coverage of ABA is severely limited. It is capped at
$36,000 per year for an Active-Duty member, which falls far below what
is medically recommended for so many of these children.
This care is limited to Active-Duty servicemembers only. Guard and
Reserve families receive intermittent care, and children of retirees
can't even get coverage at all. As a consequence, military
servicemembers often must turn to State Medicaid Programs to help
provide these services to their children. But the problem is that these
services are often unavailable because of long--years--wait lists. In
Maryland, for example, the wait list is 7 years, essentially
eliminating ABA coverage during the early developmental years when a
child needs it most. The wait list in Virginia is 10 years long.
Even more remarkable than TRICARE not covering these treatments is
that the Office of Personnel Management has determined that such
treatments may be covered as medical therapies for Federal civilian
employees. A recent court decision, which the DOD is still reviewing
and may appeal, determined that TRICARE must cover these treatments.
But this decision is being applied under the most narrow definition in
the interim, limiting the potential pool of providers. This amendment
requires TRICARE to provide coverage and deliver services in a manner
that is consistent with the best practices, thereby improving access to
care for our military families and aligning the TRICARE policy with
coverage that is basically available to anybody else in the civilian
sector.
I believe we have a duty to stand by our military families. We have
to address this difficult medical issue. We ask so much of our men and
women who serve in the military. We must support their families. This
amendment simply fulfills that promise.
I yield the floor.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. COBURN. Madam President, first, I wish to announce that I agree
with the assessment of the Senator from New York in terms of the
treatment that should be offered. I have no problems with that. I think
she is right. There are a lot of other things in TRICARE that aren't
right. And what the Senator from New York is doing is admirable, but
there is a portion of it that is not.
With the modification to her amendment, she has now raised the total
cost of this amendment over the next 10 years to $1.9 billion. And it
is true that she has managed to insert with some excess funds that will
be spent before the end of the year that won't be there by the time the
money for this is used to pay for it. So she does meet that standard,
but she doesn't meet the standard for the next 10 years.
So we are in the midst of this large discussion about how we are
going to get out of this fiscal mess. I take her at her word that she
really does want to reform TRICARE and fix it. But realize that TRICARE
hasn't had a premium increase since 1995, and all it would take to pay
for this is a $2-per-month increase in premiums for those on TRICARE.
And it is just TRICARE Prime; it is not TRICARE Standard and TRICARE
For Life. It is just $2. Madam President, $550 per year covers your
whole family, with no deductibles and no copays right now. It hasn't
been increased since 1995.
So one of the things we ought to do is we ought to work to bring
TRICARE standards up to make sure they meet the needs of everybody. I
don't disagree with that. But the other thing we ought to do is we
ought to pay for it. Now, where is the money going to come from to pay
for this, this very well-intentioned and proper thing? The way it is
written now by the Senator from New York, this will come out of the
operations and maintenance fund. So the very father of an autistic
child will have less flight time, less drill time, less shooting time,
less preparation time to go out and be a warfighter. And as we think
about the 10-percent across-the-board cut that is coming or the $500
billion that is proposed to come out of the Defense Department, none of
it is going to come out of TRICARE.
So what we ought to do is we ought to fix these things, but we ought
to fix them without digging our hole deeper.
Before Secretary Gates left, he said the biggest thing that is eating
the lunch in the Defense Department is the department of health within
it that manages the health care because we have not done an appropriate
job of having a slight rise in premiums to cover some of the tremendous
benefits. Nobody else in the country gets the benefits we give with
TRICARE--nobody--$550 a year per family, $275 if you are single, and no
copay and no deductible. All it would take is $24 a year by our TRICARE
Prime to pay to make sure that the people with disabilities and the
people with autism have the appropriate therapies and they are covered
under TRICARE.
So I would ask my colleague from New York if she would mind
withdrawing her amendment, to be voted on later, that I might be able
to offer a second-degree amendment and maybe in that way or another way
pay for this out of things that we know are going on, that we could
find $1.9 billion over the next 10 years to actually pay for the cost
of this over the next 10 years. We didn't have time to do that
beforehand. I don't know if she would be willing to do that. But there
is no way you should justify taking another $1.9 billion out of the
operation and maintenance program for our troops to health care. We
ought to eliminate something that doesn't take away from their training
time, flying time, shooting time, or sailing time. We ought to be
taking it from somewhere else, but that is where this is going to come
from.
I applaud what she is doing. She is right about fixing the problem.
She is totally opposite of what we should be doing in terms of paying
for it, and I would offer to work in good faith in the next hour to try
to come up with a second-degree amendment that would be acceptable to
my colleague and to the chairman and ranking member of this committee
that would actually pay for it.
Madam President, I yield the floor and reserve the remainder of my
time.
The PRESIDING OFFICER. Who yields time?
Mr. COBURN. Madam President, how much time is remaining?
The PRESIDING OFFICER. There is 5 minutes for Senator Coburn and 6
minutes for Senator Gillibrand remaining.
Mr. McCAIN. Will the Senator yield 2 minutes to me?
Mr. COBURN. I would be happy to yield.
Mr. McCAIN. Madam President, there is no one I know of in this body
at any time who would not want to assist and provide the best care,
especially for our disabled children who have autism. It is one of the
most compelling stories any of us have ever heard. But I think it is
also important for us to recognize that when we continue to add on
benefits without a hearing, without any scrutiny, without balancing
where they are in the array of priorities we have, and without paying
for them--it seems to me that in the budget we have and the
expenditures we have, to just say, as the distinguished Senator from
New York just stated, that we will address it next year, we will get
that taken care of--we all know the hardest thing around here is to
find funds for programs.
So I appreciate more than I can say the dedication of the Senator
from New York on this issue, but here we go again--we are going to now
bestow another entitlement that is not paid for. With all due respect,
I say to the Senator from New York, why don't she give us something to
pay for it with? Why don't she come up with an offset that would then
not have us increase the debt by $1.9 billion? We are now adding a cost
of $1.9 billion in the name of one of the most humane and compelling
causes any of us know. But don't we have an obligation to the
taxpayers? We have an obligation to the taxpayers to say that we are
going to take care of these special needs Americans but we are going to
pay for it. Instead, we are going to lay an additional

[[Page S7158]]

burden on the taxpayers of America which someday is going to have to be
paid for--someday. It may not be in this bill, but someday it is going
to have to be paid for.
Obviously this amendment is going to pass, but I would love to see
the Senator from New York tell us how we are going to pay for it. I
don't think that is an outrageous demand.
Madam President, I yield the floor.
The PRESIDING OFFICER. The Senator from New York.
Mrs. GILLIBRAND. I thank my colleagues for their statements of
support for meeting the needs of the children who do suffer from autism
and other developmental disorders, and I do appreciate and believe
their sincerity in wanting to make sure they are covered with the
treatments they need.
I think we can work together to reform the TRICARE system. It is one
that has not had the kind of reform it needs. But this is just an
authorization for 1 year to meet the needs of these kids now because I
don't want to wait until we figure it out and figure out the rest of
the program.
In addition, we did have a hearing. We had scientists and doctors and
those who are medical professionals come to testify in front of the
Armed Services subcommittee. Through that testimony we established that
the only reason the DOD wasn't covering this was because they believed
it was an educational program. And what we established and what the
medical literature says is that it is actually a medically necessary
treatment in the same way you would give a child who is sick a
medicine.
I want to address the needs of these kids now. I will commit to
working with the Senators to reforming TRICARE so we can actually pay
for programs over the long term and reform it in a way that is
consistent with the benefits our troops so desperately need.
Mr. COBURN. Madam President, might I ask through the Chair the
Senator from New York if she would consider for a short period of time
withdrawing her amendment and allowing me to develop a second-degree
amendment that would actually pay for this so that we would accomplish
her goal--and I think all of our goals--of making sure the proper
treatment is there but won't handicap the armed services in terms of
delayed training, less training, less flying time? Because it is going
to come out of the operations and maintenance funds. I wonder if she
would do that with the assurance of the chair and the assurance of the
ranking member and chairman of the committee that the amendment would
still be considered.
The PRESIDING OFFICER. The Senator from New York.
Mrs. GILLIBRAND. I urge my colleagues to take a more lengthy time to
consider how to reform TRICARE and pay for this program than just 1 or
2 hours.
I would like to pass this amendment now. Right now operations and
maintenance has $174 billion a year in it. This is $45 million for 1
year just to get the treatments in place for these families. In 1
year's time, we will have more accountability and transparency on what
the real cost is. This is just an estimate. So what we want to do is be
able to have more facts and then go to reform the TRICARE system
properly, and I commit to Senators that I will work with you on that.
This is only authorized for 1 year.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Madam President, I believe it was Ronald Reagan who said
that the closest thing to eternal life here on Earth is a government
program.
Again, the complaint that we continue to hear from our constituents
is that we have mortgaged our children's and our grandchildren's
futures. And to somehow say, well, we are only authorizing this program
for 1 year--does the Senator from New York really believe that once we
start treating children with autism, we are going to terminate that
program? Does she really believe that? Of course not. Of course not.
We have an obligation to the men and women, the citizens of this
country whom we have saddled with a $16 trillion debt to find ways to
sacrifice ourselves fiscally to pay for worthwhile programs. So I
support a second-degree amendment from the Senator from Oklahoma, which
is his right. It is his right to do so. And I don't see how we fulfill
our obligation to our citizens by continuing to authorize and
appropriate expenditure of their tax dollars without a way to pay for
it except to take it out of our taxpayers' pockets.
That is not right. That is not right. The Senator from New York knows
it is not right for us, no matter how worthy the cause, for us to
continue this continued spend, spend, spend, debt, debt, debt that the
American people are saddled with. I probably will not be paying for the
national debt but my kids will, my grandkids will. Can't we for once
say: Look, this is a worthwhile program, we all support taking care of
people with autism, and here is how we are going to pay for it. That
would be a unique experience around this body.
I yield.
The PRESIDING OFFICER. Who yields time?
Mr. COBURN. I yield the remaining portion of my time.
Mrs. GILLIBRAND. I yield my time.
Mr. COBURN. I think my colleague from New York would like to ask for
the yeas and nays.
Mrs. GILLIBRAND. I request a voice vote.
Mr. LEVIN. Is there anyone seeking the yeas and nays?
Mrs. GILLIBRAND. I request a voice vote.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. COBURN. I think we ought to have a recorded vote on this since we
are not paying for it and we are taking $1.9 billion out of the O&M
budget of the Defense Department. I ask we have a recorded vote.
The PRESIDING OFFICER. Is there a sufficient second? There appears to
be a sufficient second.
The question is on agreeing to the amendment.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from New Jersey (Mr.
Lautenberg) and the Senator from Oregon (Mr. Wyden) are necessarily
absent.
Mr. KYL. The following Senators are necessarily absent: the Senator
from Illinois (Mr. Kirk), the Senator from South Carolina (Mr. DeMint),
and the Senator from Nevada (Mr. Heller).
The PRESIDING OFFICER (Mr. Coons). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 66, nays 29, as follows:

[Rollcall Vote No. 211 Leg.]

YEAS--66

Akaka
Ayotte
Baucus
Begich
Bennet
Bingaman
Blumenthal
Boxer
Brown (MA)
Brown (OH)
Cantwell
Cardin
Carper
Casey
Chambliss
Coats
Collins
Conrad
Coons
Durbin
Feinstein
Franken
Gillibrand
Grassley
Hagan
Harkin
Hatch
Hutchison
Inouye
Isakson
Johnson (SD)
Kerry
Klobuchar
Kohl
Landrieu
Leahy
Levin
Lieberman
Lugar
Manchin
McCaskill
McConnell
Menendez
Merkley
Mikulski
Moran
Murkowski
Murray
Nelson (FL)
Pryor
Reed
Reid
Roberts
Rockefeller
Rubio
Sanders
Schumer
Shaheen
Snowe
Stabenow
Tester
Udall (CO)
Udall (NM)
Warner
Webb
Whitehouse

NAYS--29

Alexander
Barrasso
Blunt
Boozman
Burr
Coburn
Cochran
Corker
Cornyn
Crapo
Enzi
Graham
Hoeven
Inhofe
Johanns
Johnson (WI)
Kyl
Lee
McCain
Nelson (NE)
Paul
Portman
Risch
Sessions
Shelby
Thune
Toomey
Vitter
Wicker

NOT VOTING--5

DeMint
Heller
Kirk
Lautenberg
Wyden
The amendment (No. 3058) was agreed to.
Mr. LEVIN. Mr. President, I move to reconsider the vote.
Mrs. BOXER. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, I believe Senator Portman may be ready with
an amendment that has been cleared and, I believe, can be voice-voted.
I am wondering if my friend from Ohio could confirm my understanding
that he is ready to proceed and that he is willing to take a voice vote
on this amendment?

[[Page S7159]]

Mr. PORTMAN. Yes. That would be great. I am willing to take a voice
vote, and I believe it is going to be accepted.
The PRESIDING OFFICER. Does the Senator from Ohio seek recognition?
Mr. PORTMAN. Mr. President, I do seek recognition.
The PRESIDING OFFICER. The Senator from Ohio.

Amendment No. 2956

Mr. PORTMAN. Mr. President, I ask unanimous consent that the pending
amendment be set aside and call up amendment No. 2956.
The PRESIDING OFFICER. Without objection, the clerk will report the
amendment.
The bill clerk read as follows:

The Senator from Ohio [Mr. Portman], for himself and Mr.
Akaka, proposes an amendment numbered 2956.

Mr. PORTMAN. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

(Purpose: To require a report on Department of Defense efforts to
standardize educational transcripts issued to separating members of the
Armed Forces)

At the end of subtitle F of title V, add the following:

SEC. 561. REPORT ON DEPARTMENT OF DEFENSE EFFORTS TO
STANDARDIZE EDUCATIONAL TRANSCRIPTS ISSUED TO
SEPARATING MEMBERS OF THE ARMED FORCES.

(a) Report Required.--Not later than 90 days after the date
of the enactment of this Act, the Secretary of Defense shall
submit to the Committees on Armed Services of the Senate and
the House of Representatives a report on the efforts of the
Department of Defense to standardize the educational
transcripts issued to members of the Armed Forces on their
separation from the Armed Forces.
(b) Elements.--The report required by subsection (a) shall
include the following:
(1) A description of the similarities and differences
between the educational transcripts issued to members
separating from the various Armed Forces.
(2) A description of any assessments done by the
Department, or in conjunction with educational institutions,
to identify shortcomings in the transcripts issued to
separating members in connection with their ability to
qualify for civilian educational credits.
(3) A description of the implementation plan for the Joint
Services Transcript, including a schedule and the elements of
existing educational transcripts to be incorporated into the
Transcript.

Mr. PORTMAN. Mr. President, this is a pretty simple amendment. It has
to do with correcting a problem that we have found in Ohio and around
the country. Amendment No. 2956 simply calls on the Secretary of
Defense to work to standardize the educational transcripts of
separating servicemembers. I appreciate Senator Akaka's leadership and
cosponsorship of this amendment.
It is an important issue to a lot of our veterans as they are seeking
to pursue their educational opportunities after being in the service.
If they seek to use the GI bill or other benefits to further their
education after taking off the uniform, they sometimes find they have
an issue of getting credit for work they have done in the service.
Each servicemember is issued a transcript upon leaving Active Duty.
The transcript equates military training and instruction to academic
credits. Colleges and universities then use these transcripts to award
transfer credit to veteran students.
Unfortunately, there is a significant difference in the types of
transcripts issued by each of the military services. As a result, two
veterans from different services who took the exact same military
courses could receive significantly different academic credit at the
same school. If we multiply that across all the services, all of our
veteran students, and across all the colleges and universities in this
country, we end up with some real issues. We end up with many veterans
losing out on credit they deserve, as well as very well-intentioned
colleges and universities spending a lot of time and resources trying
to make sense of all these differences to help this process for
veterans. It often falls on the Veterans Service Offices in these
schools, and as my colleagues know, these Veterans Service Offices
should be spending their time assisting veterans with their transition
to academic life, which is sometimes a challenge.
Ohio has been leading on this issue and has organized public and
private schools, our State board of regents, and even the Ohio National
Guard to try to bring some sense to this. That has been helpful, but it
would be far easier and far better to standardize the military
transcripts themselves. It would avoid, again, a lot of the issues, a
lot of the bureaucracy.
The Defense Department has recognized some of these issues, and I
think they have started down the path of developing a joint services
transcript. This is an important first step, and through this amendment
we seek an understanding of those requirements and their implementation
plan for this kind of initiative, should it be in place, in order to
see it on a path to a swift and thorough resolution.
So I think this is one that, again, as the chairman was asking, could
be voice-voted. I hope it will be.
So, Mr. President, I ask for a voice vote on the pending amendment.
The PRESIDING OFFICER. Is there any further debate on the amendment?
If not, the question is on agreeing to the amendment.
The amendment (No. 2956) was agreed to.
Mr. PORTMAN. I yield the floor.
Mr. LEVIN. Mr. President, I move to reconsider the vote.
Mr. PORTMAN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. I wonder if we could get a unanimous consent that Senator
Casey be allowed to proceed as in morning business to comment on filed
amendments for--I am sorry, was it 10 minutes?--10 minutes. I ask
unanimous consent that Senator Casey be allowed to proceed as in
morning business.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The Senator from Pennsylvania.
Mr. CASEY. Mr. President, I rise today to talk about our Nation's
military in light of the legislation we are considering. I commend
Chairman Levin and Ranking Member McCain and all those who are working
on it. I just have some comments on a number of amendments and a few
issues.
For more than a decade now our Nation has been at war. In that time
period, the men and women of the U.S. Armed Forces have courageously
served in Afghanistan and Iraq, assisted communities after disasters,
and continued to provide stability across the world. As the military
draws down from foreign engagements and strategic directions are
reassessed, the Senate should do the same with regard to these issues.
Unlike previous debates on the National Defense Authorization Act,
this year the bill before us seeks to clarify the role of the military
for the next decade or more.
We are being asked to evaluate how large our military needs to be as
we assess our near- and long-term threats. We are being asked to
evaluate what equipment and resources this fighting force will need to
keep the peace and to combat new aggressors, all while we are being
asked to evaluate programs we have introduced over the past decade to
support our servicemembers and their families.
There are just a couple issues that are relevant to this debate, one
which has particular significance for southwestern Pennsylvania. This
is with regard to the military's force structure. I have been alarmed
at two proposals submitted by the Air Force as it seeks to restructure.
In Pennsylvania, the Air Force has sought to eliminate the Pittsburgh
Air Reserve Station where approximately 1,500 Reservists and civilians
are committed to serving our Nation. After numerous briefings and
hearings, the Air Force has yet to provide us--to provide my office and
I think other offices as well--with a thorough analysis of several of
their proposals. These proposals, as presented, have failed to reflect
the low overhead costs, efficiencies, and the value of the 911th
Airlift Wing.
For example, the 911th has developed an aircraft maintenance program
that has resulted in more aircraft availability days while saving the
Department more than $42 million over the last 5 years. The Air Force
continues to reiterate that they must find savings in this tight budget
environment.

[[Page S7160]]

If this is true, I am not convinced the closing of one of their most
efficient bases meets this objective of cost savings.
I am also disturbed to see how the Air Force Reserve continues to be
treated during this process. While the Guard and Active components have
been mostly protected, the Air Force Reserve, including the 911th in
Pittsburgh, has borne the brunt of these proposed cuts. Therefore, I am
pleased Chairman Levin and the members of the Armed Services Committee
have worked to prevent the Air Force from moving forward with these
proposals in fiscal year 2013.
I ask other colleagues to join Senators Begich, Gillibrand, and me on
amendment No. 2952 that seeks to prevent the military from using a
backdoor BRAC process to substantially reduce or close bases,
especially without justifying to Congress their intentions. On behalf
of Pennsylvania's Air Force Reserve, I will continue to fight for a
reasoned and balanced restructuring of the Air Force.
The second issue I wish to raise is the so-called TAA Program. We
know our long-term strategic interests must also secure the future of
servicemembers and veterans alike. Today, I have introduced an
amendment that provides assistance to our servicemembers and their
families. It is amendment No. 2297, the Transition Assistance Advisors
Program, the so-called TAA Program.
It seeks to make permanent and increase the numbers of transition
assistance advisors in every State. These advisors coordinate resources
for the Reserve component members and their families to help these
individuals navigate the myriad of service programs provided by the VA,
TRICARE, veterans service organizations, and other supporting agencies.
These advisors are considered a force multiplier by the National
Guard Bureau. The TAA assistance advisors enhance the Bureau's outreach
capabilities, serve as a vital link between servicemembers and the
benefits to which they are entitled. In the last 2 years, since this
initiative was launched, 62 of these advisors have reached more than
194,000 veterans and their families. Yet 62 advisors can only do so
much. All too often, I hear from my National Guard constituents and
their spouses about how confusing it is to navigate military procedures
and benefits, especially as they go on and off duty every 2 years.
Our citizen soldiers have answered the call to serve our Nation in
times of need. Should we not be doing everything we can to help them
navigate these complicated measures when they return home? I think the
answer to that question is a resounding yes.
Last year, Congress authorized end strengths of 464,900 guardsmen and
women in the Army and Air National Guard. On average, this comes to an
average of 1 transition assistance advisor--just 1--per 7,498
servicemembers and their families, obviously not enough advisors to
help our families.
I believe this ratio does a disservice to citizen soldiers and to
airmen as well as others and their families. I ask my colleagues to
support and strengthen this program as our veterans of Iraq and
Afghanistan try to reintegrate back into their lives. I thank Senators
Leahy, Blumenthal, Tester, Mikulski, and Wyden for cosponsoring this
important amendment.
Finally, my last issue. This involves women in Afghanistan. In
addition to making important adjustments to the size and strength of
our military, the authorization act also helps to shape strategic
priorities in critical regions. In Afghanistan, we are reducing the
U.S. presence and transitioning security responsibilities to Afghan
forces. It is critical this process protects the gains that have been
made over the last 10 years, particularly with regard to the rights and
opportunities of Afghan women and girls. I am concerned that as our
international forces draw down, extremists threaten to once again
restrict Afghan women's mobility and opportunities for participation in
public life.
Women who are active in public life face serious threats to their
personal safety in Afghanistan. Girls have been the targets of
extremist violence simply for going to school. We all know the story
that was written about the acid thrown in the face of two young girls.
That was repeated numerous times across the country. Afghan forces are
not doing enough to counter these influences and protect women in their
communities. This just does not threaten Afghan women and Afghan girls,
it threatens the success of the security transition in Afghanistan that
we are paying for, that we have invested in, that our fighting men and
women have fought and died for.
We know that when women's security deteriorates, it can be an early
indicator of a worsening security condition overall. I am very
concerned that if we neglect women's security in Afghanistan during
this transition period and if we stand by while women are forced out of
public life and have their voice silenced by extremists, we will see a
less stable and a less secure Afghanistan in 2014 and beyond.
That is why Senator Hutchison and I have introduced the Afghan Women
and Girls Security Promotion Act and offered it as an amendment to the
National Defense Authorization Act. We are proud to be joined by
Senators Mikulski, Feinstein, Gillibrand, Murkowski, Snowe, Lautenberg,
Cardin, and Boxer.

Here is what the legislation does: It requires the Department of
Defense to produce a plan--just a plan--to produce a plan to promote
the security of Afghan women and girls during the transition process,
including monitoring and responding to changes in women's security.
Second, the Department of Defense must work to improve gender
sensitivity and responsiveness among Afghan national security forces
personnel. Third, it increases recruitment and retention of women in
the Afghan national security forces. It will also require that the
Department of Defense report on the implementation of this strategy and
its results in semiannual reports that are filed.
When I last visited Afghanistan, leading a CODEL in August of 2011, I
was privileged to meet with a group of Afghan women leaders. I was
impressed and inspired--that is an understatement--inspired by their
determination to continue to fight for women's rights even in the face
of extraordinary oppression and violence.
One member of Parliament, Fawzia Kofi, lost her father and her
husband as a result of her family's involvement in politics. But she is
still determined to be a leader in protecting women's rights and
advancing Afghanistan's democratic development. She and her colleagues,
along with women across Afghanistan, are prepared to do whatever it
takes to make sure their rights are protected and that they have a
voice in their country's future. Supporting them is not only in line
with our American values, it is critical to discouraging extremism and
laying a foundation for a peaceful future in Afghanistan.
I am glad several of my colleagues have joined us as cosponsors in
this important amendment. I hope we can see more support as we move
forward.
I yield the floor.
The PRESIDING OFFICER. The Senator from Florida.
Mr. NELSON of Florida. Mr. President, the chairman has asked me to
manage the bill in the meantime while he is working out with the
leadership a list of amendments.
Seeing no other Senator who wants to speak at this point, if I may,
then I will talk about an amendment that would be offered in the
future.
I am going to offer an amendment to repeal the offset in the
Department of Defense and the VA benefits for military widows and
widowers. The standalone bill, S. 260, has widespread support from
military organizations and has 51 cosponsors in the Senate. This is the
ninth time that I have and will bring this amendment to the Defense
Authorization Act.
It has passed the Senate six times over the past decade, including
last year by voice vote. The Senate has supported eliminating this
offset for years. I hope this body will remain steadfast in its support
for military widows and survivors.
The Presiding Officer will recall in a number of addresses that
President Lincoln gave he spoke of the responsibility the government
has to take care of the veteran and his widow and orphans. That is an
ingrained principle within the law. That is an ingrained

[[Page S7161]]

principle as we uphold the finest fighting force in the world, which is
our military.
What this amendment does is it addresses the longstanding problems
faced by those survivors of people who are killed in action or whose
death is related to the service in the military. The requirement for
the dollar-for-dollar reduction of the Department of Defense Survivor
Benefit Plan--it is an annuity--is offset by the amount of dependency
and indemnity compensation that is received from another department,
the Department of Veterans Affairs.
The Survivor Benefit Plan from the Department of Defense is an
optional program for military retirees offered by the Department of
Defense. Military retirees pay premiums out of their retirement pay to
ensure that their survivors will have adequate income upon that
servicemember's death. That is an insurance plan paid for by the
military retiree.
On the other hand, the Dependency and Indemnity Compensation is a
completely different survivor benefit. It is administered by the VA.
When military service caused the servicemember's death, either due to
service-connected disability or illness or Active-Duty death, surviving
spouses are entitled to a monthly compensation. Most recently that has
been $1,154. That comes from the VA. That is as a result of death with
a service-connected disability or illness or Active-Duty death.
Now, of the 270,000 survivors that are receiving, under the insurance
plan, the Survivor Benefit Plan, about 54,000 of those widows and
orphans are subject to the offset.
According to the Defense Actuary, 31,000 survivors' SBP, the
insurance plan, is completely offset by the dependency and indemnity
compensation, meaning that the widow or the widower must live just on
the DIC, which is $1,154. Well, that is simply not fair because if you
engage in an insurance contract and you pay premiums to give you a
certain return upon the happening of an event--in this case, the death
of a retired military member--then that contract ought to be offered.
But because this has been an expensive item in the past, what has
happened over the years that this Senator has been trying to eliminate
this offset is we have whittled it down but not completely done the
complete offset. The fact is that the group of people affected, the
group of widowers or widows, is getting smaller and smaller and
therefore is going to cost less. I know of no purchased annuity plan
that would deny payout based on the receipt of a different benefit,
which is the case here.
Retirees bought into the SBP, the insurance plan, in good faith,
these military families planned for the future, and the government
failed to hold up its end of the bargain.
The military has a longstanding tradition never to leave a comrade
behind, but that is what we are doing to the military survivors, the
widows and the orphans. We are not taking care of those who are left
behind.
We must meet our obligation to the widow and the orphan with the same
sense of honor as was the service their loved one rendered. We must
eliminate this SBP-DIC offset. It is the right thing to do, and it is
going to cost a lot less than when I tried this 11 years ago, but there
will be costs. But we have to start by setting the policy of what is
right.
Mr. President, I yield the floor, and I suggest the absence of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
The PRESIDING OFFICER. The Senator from California.
Mrs. BOXER. I ask unanimous consent that the order for the quorum
call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from California.
Mrs. BOXER. Mr. President, just in the lull here--and if there is any
legislative business to take place, I will immediately give up the
floor--I wish to make the point that I am so proud to be in this
Senate, so proud to have been here for a long time now. I came here in
1993. There were 2 women, then we went to 6 women, and now we are going
to 20 women. I have seen changes, I have seen good things, and I have
seen rough things.
I have to say one of the things that keeps coming up continually here
is folks trying to use these debates on bills to add irrelevant
amendments, amendments that have nothing to do with the topic at hand.
I think we all agree that defending our Nation is our No. 1 priority,
and therefore having a defense authorization bill is very important. I
am sure we don't agree with every single sentence of this bill, but in
general we all want to make sure that our military is prepared, that
they are paid well, that they get good benefits. We must ensure we have
a strong military that can meet every threat. Again, we are going to
disagree on what all that means, but at least when we legislate, we
ought to make sure that when we offer amendments, they are either
noncontroversial and committee chairs have signed off if they are in
their jurisdiction or we shouldn't offer them.
The reason I rise today is that we may be facing two environmental
riders on this bill, and I want to go on record as saying I am not
going to let that happen. Now, if colleagues want to override and stay
here through the night and the weekend, that is fine, but I am going to
be staying right here because one of these amendments would say that
the EPA, under the Toxic Substances Control Act, could never regulate
the ingredients in ammunition. This means they could never regulate
lead and they could never regulate perchlorate. Lead and perchlorate
kill, they harm, they do damage to the thyroid, to brain development,
and to the behavior of children. Pregnant women are harmed.
So I am not going to allow an environmental rider to get onto this
floor and pass this Senate when we are doing a defense bill which is
meant to protect our people. I can tell you right now, you don't put a
harmful environmental rider in the Defense bill when you are trying to
pass a bill to protect our people, not make it easier for them to be
exposed to dangerous lead, dangerous perchlorate, and other chemicals.
There is a place and a time to do those amendments, and that would be
on a relevant bill, a bill that comes out of the Environment Committee.
That is fine. We can debate it then and have a vote when everyone
understands the ramifications.
Now there is threat here to have another environmental rider that
deals with coal ash, the regulation of coal ash. What does that have to
do with the military bill? Zero. The components of coal ash are a huge
danger to people. We have seen the coal ash pile up and get loose. In
the East, it just goes down in a rainstorm and destroys whole
communities. There is an environmental rider waiting to be offered that
would weaken the EPA's ability to go to that threat and get rid of it.
I am very distressed, and I am sure you can hear it in my voice. I
know there are differences around here, but I take my job seriously. As
chairman of the Environment Committee, my job is to protect the public
health from toxins such as lead, perchlorate, and the amazing
collection of chemicals in coal ash that kill and harm and maim.
I know people want to get this bill done, and, believe me, I want to
get this bill done. I have several amendments in this bill that are so
important, and I thank colleagues on both sides of the aisle,
particularly Senator Cornyn and Senator Snowe, who helped me with an
amendment that would say that if someone has been convicted of a sexual
assault, they can no longer join the military. That is in this bill.
That is very important.
We have other amendments we have worked on, and I thank Senator Levin
and Senator McCain. They have reached out to the committee chairs, and
they have said: Look, we are trying to protect your jurisdiction. They
have now said they have no agreement that our jurisdiction will be
protected.
As much as I don't want to sit here and stand guard, I am going to do
it because I think that is my role and that is my job.
I thank you, Mr. Chairman, for this moment to express the reason I
have been on the floor all afternoon and will continue to be on floor
until we adjourn this evening.
Mr. President, I yield the floor, and I note the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.

[[Page S7162]]

The legislative clerk proceeded to call the roll.
Mr. LEVIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Franken). Without objection, it is so
ordered.
Mr. LEVIN. Mr. President, we are now going to turn to an amendment of
Senator Whitehouse which has been cleared. We have worked to make sure
everybody understands that he is going to proceed to the amendment. And
then I understand there is not going to be a need for rollcall vote on
it.
I ask the Senator from Rhode Island, about how much time does he
believe he would need on his amendment before we hopefully voice vote?
Mr. WHITEHOUSE. I would say just 2 or 3 minutes.
Mr. LEVIN. I thank the Presiding Officer.
Mr. WHITEHOUSE. But I do believe that the Senator from Oklahoma
wishes to respond.
Mr. LEVIN. And I appreciate that.
Mr. President, I ask unanimous consent that there be 10 minutes on
the Whitehouse amendment, equally divided between Senator Whitehouse
and Senator Coburn.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. WHITEHOUSE. Mr. President, may I ask the chairman if he wishes
the amendment called up now and made pending or are we simply going to
have discussion on it?
Mr. LEVIN. The Senator, we expect now, will be calling up his
amendment. And may I, though, correct what I said before. It is
possible that there will be a need for a rollcall vote on the
Whitehouse amendment.

Amendment No. 3180

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the
pending amendment be set aside in order to call up amendment No. 3180.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Rhode Island [Mr. Whitehouse] proposes an
amendment numbered 3180.

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent to dispense
with further reading of the bill.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

(Purpose: To provide for scientific frameworks with respect to
recalcitrant cancers)

At the appropriate place, insert the following:

SEC. __. SCIENTIFIC FRAMEWORK FOR RECALCITRANT CANCERS.

Subpart 1 of part C of title IV of the Public Health
Service Act (42 U.S.C. 285 et seq.) is amended by adding at
the end the following:

``SEC. 417G. SCIENTIFIC FRAMEWORK FOR RECALCITRANT CANCERS.

``(a) Development of Scientific Framework.--
``(1) In general.--For each recalcitrant cancer identified
under subsection (b), the Director of the Institute shall
develop (in accordance with subsection (c)) a scientific
framework for the conduct or support of research on such
cancer.
``(2) Contents.--The scientific framework with respect to a
recalcitrant cancer shall include the following:
``(A) Current status.--
``(i) Review of literature.--A summary of findings from the
current literature in the areas of--

``(I) the prevention, diagnosis, and treatment of such
cancer;
``(II) the fundamental biologic processes that regulate
such cancer (including similarities and differences of such
processes from the biological processes that regulate other
cancers); and
``(III) the epidemiology of such cancer.

``(ii) Scientific advances.--The identification of relevant
emerging scientific areas and promising scientific advances
in basic, translational, and clinical science relating to the
areas described in subclauses (I) and (II) of clause (i).
``(iii) Researchers.--A description of the availability of
qualified individuals to conduct scientific research in the
areas described in clause (i).
``(iv) Coordinated research initiatives.--The
identification of the types of initiatives and partnerships
for the coordination of intramural and extramural research of
the Institute in the areas described in clause (i) with
research of the relevant national research institutes,
Federal agencies, and non-Federal public and private entities
in such areas.
``(v) Research resources.--The identification of public and
private resources, such as patient registries and tissue
banks, that are available to facilitate research relating to
each of the areas described in clause (i).
``(B) Identification of research questions.--The
identification of research questions relating to basic,
translational, and clinical science in the areas described in
subclauses (I) and (II) of subparagraph (A)(i) that have not
been adequately addressed with respect to such recalcitrant
cancer.
``(C) Recommendations.--Recommendations for appropriate
actions that should be taken to advance research in the areas
described in subparagraph (A)(i) and to address the research
questions identified in subparagraph (B), as well as for
appropriate benchmarks to measure progress on achieving such
actions, including the following:
``(i) Researchers.--Ensuring adequate availability of
qualified individuals described in subparagraph (A)(iii).
``(ii) Coordinated research initiatives.--Promoting and
developing initiatives and partnerships described in
subparagraph (A)(iv).
``(iii) Research resources.--Developing additional public
and private resources described in subparagraph (A)(v) and
strengthening existing resources.
``(3) Timing.--
``(A) Initial development and subsequent update.--For each
recalcitrant cancer identified under subsection (b)(1), the
Director of the Institute shall--
``(i) develop a scientific framework under this subsection
not later than 18 months after the date of the enactment of
this section; and
``(ii) review and update the scientific framework not later
than 5 years after its initial development.
``(B) Other updates.--The Director of the Institute may
review and update each scientific framework developed under
this subsection as necessary.
``(4) Public notice.--With respect to each scientific
framework developed under subsection (a), not later than 30
days after the date of completion of the framework, the
Director of the Institute shall--
``(A) submit such framework to the Committee on Energy and
Commerce and Committee on Appropriations of the House of
Representatives, and the Committee on Health, Education,
Labor, and Pensions and Committee on Appropriations of the
Senate; and
``(B) make such framework publically available on the
Internet website of the Department of Health and Human
Services.
``(b) Identification of Recalcitrant Cancer.--
``(1) In general.--Not later than 6 months after the date
of the enactment of this section, the Director of the
Institute shall identify two or more recalcitrant cancers
that each--
``(A) have a 5-year relative survival rate of less than 20
percent; and
``(B) are estimated to cause the death of at least 30,000
individuals in the United States per year.
``(2) Additional cancers.--The Director of the Institute
may, at any time, identify other recalcitrant cancers for
purposes of this section. In identifying a recalcitrant
cancer pursuant to the previous sentence, the Director may
consider additional metrics of progress (such as incidence
and mortality rates) against such type of cancer.
``(c) Working Groups.--For each recalcitrant cancer
identified under subsection (b), the Director of the
Institute shall convene a working group comprised of
representatives of appropriate Federal agencies and other
non-Federal entities to provide expertise on, and assist in
developing, a scientific framework under subsection (a). The
Director of the Institute (or the Director's designee) shall
participate in the meetings of each such working group.
``(d) Reporting.--
``(1) Biennial reports.--The Director of NIH shall ensure
that each biennial report under section 403 includes
information on actions undertaken to carry out each
scientific framework developed under subsection (a) with
respect to a recalcitrant cancer, including the following:
``(A) Information on research grants awarded by the
National Institutes of Health for research relating to such
cancer.
``(B) An assessment of the progress made in improving
outcomes (including relative survival rates) for individuals
diagnosed with such cancer.
``(C) An update on activities pertaining to such cancer
under the authority of section 413(b)(7).
``(2) Additional one-time report for certain frameworks.--
For each recalcitrant cancer identified under subsection
(b)(1), the Director of the Institute shall, not later than 6
years after the initial development of a scientific framework
under subsection (a), submit a report to the Congress on the
effectiveness of the framework (including the update required
by subsection (a)(3)(A)(ii)) in improving the prevention,
detection, diagnosis, and treatment of such cancer.
``(e) Recommendations for Exception Funding.--The Director
of the Institute shall consider each relevant scientific
framework developed under subsection (a) when making
recommendations for exception funding for grant applications.
``(f) Definition.--In this section, the term `recalcitrant
cancer' means a cancer for which the five-year relative
survival rate is below 50 percent.''.

Mr. WHITEHOUSE. Mr. President, I thank Chairman Levin and Ranking

[[Page S7163]]

Member McCain for their patience and persistence in allowing us to get
to this vote. I think once I have discussed the bill for a moment, it
might not seem as though it would have required much patience or
persistence to get here, but it did. They have been very kind and very
attentive, and I appreciate it.
The history of this amendment is that it began as a bill in the
Senate. This bill passed out of the Health, Education, Labor and
Pensions Committee by unanimous consent. An identical bill passed
through the House of Representatives under suspension. So in many
respects it is noncontroversial.
I also thank Chairman Harkin and Ranking Member Enzi of the HELP
Committee for their help getting it through the HELP Committee
unanimously and for clearing it for a vote here today on the floor.
The bill at this point has nearly 60 cosponsors. It has 18 Republican
cosponsors, and I thank them individually and by name: Senators Blunt,
Boozman, Brown of Massachusetts, Chambliss, Cochran, Collins, Crapo,
Grassley, Heller, Hutchison, Isakson, Kirk, Lugar, Moran, Murkowski,
Rubio, Snowe, and Wicker, in addition to all my Democratic cosponsors.
This is a bill that also has the support of the American Cancer
Society, the Pancreatic Cancer Action Network, the Lung Cancer
Alliance, and the American Association for Medical Research, as well as
the American Association of Medical Colleges.
What the bill does is asks that the National Institutes of Health
convene and evaluate a discussion about what we call recalcitrant
cancers. This actually began as a pancreatic cancer research bill, but
it became apparent that there were some other cancers that we group now
as what we call recalcitrant cancers in that they have not responded to
treatment and research, and they remain cancers for which there has
been little progress and survivability. And because they are so deadly
and so lethal, we are trying to direct a little more attention out of
NIH toward research on these cancers.
For me, this has a personal component, as I know it does for many
people who have been touched by pancreatic cancer. My mom died of
pancreatic cancer, and I have a number of friends who have been touched
by it in their families as well.
I know the distinguished Senator from Oklahoma has opposition to
this. If he would like to state his piece, I will be delighted to yield
the floor so he may do so now. I hope at the conclusion of his remarks
we could move this by a voice vote rather than calling all of our
colleagues back for another vote. But if he objects to that, then that
is within his prerogatives.
I yield the floor.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. COBURN. Mr. President, we have made remarkable progress in this
country in terms of research into diseases. Since Francis Collins and
his great work on the genome complex became successful, the way we
research disease has totally changed. I have my favorite aunt who died
of pancreatic cancer. I diagnosed it hundreds of times in my own
practice of patients who were dear to me and whom I love. The problem
with pancreatic cancer is it is diagnosed late. It is an adenocarcinoma
of the pancreas, much like an adenocarcinoma of the colon. The reason
we do so well on colon cancer is we do colonoscopies and we can treat
the disease early. What is well-intended by this recalcitrant cancer
bill will actually delay the cure for pancreatic cancer and other
recalcitrant diseases.
Let me take a few minutes to explain why I am saying that.
We no longer look at diseases to cure them by looking at the base
disease. There is translational and neurocommunicative and peptide and
small markers of communication on an intracellular basis. Now, when we
do research and we find that, what we find is we find cures for
multiple diseases.
The other thing is we can take 100 people with a recalcitrant cancer,
and every one of them, when we look at the genetics of cancer, will
have to be treated differently. In other words, it is going to take a
different approach, even though we might classify it as a neuroblastoma
of the kidney or a pancreatic cancer--but looking at the genetics of
the cancer, which is what we are doing now, is going to require totally
different treatments.
This is very well intended. I understand. This is a big disease, and
it is terrible that we diagnose it at a time where we cannot end up--
less than 10 percent, around 5 percent survival rates, 5-year survival
rates on this disease.
I would like to have printed in the Record a letter I received from
Dr. Francis Collins. I ask unanimous consent to have that printed.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Department of Health &

Human Services,

Bethesda, Maryland, November 16, 2012.
Hon. Tom Coburn,
U.S. Senate,
Washington, DC.
Dear Tom Coburn: Thank you for your September 17 letter
requesting that I address four questions about how disease-
specific legislation affects the ability of the National
Institutes of Health (NIH) to plan and perform research.
First you asked if the NIH already has the ability to
create strategic plans and working groups without a
legislative mandate to do so. The Secretary of Health and
Human Services and leaders of the Institutes and Centers of
the NIH have the authorities needed to constitute standing
advisory committees, create working groups, and develop plans
for research programs; as a result, they do not need
legislative mandates to take such actions. The NIH Institutes
and Centers have senior advisory councils that oversee the
research portfolio of each component. Individually or in
collaboration, the NIH Institutes and Centers frequently form
other advisory groups charged with planning research on
Institute-specific or trans-NIH subjects. These many
activities, in conjunction with our peer review panels, are
part of our ongoing effort to evaluate the current scientific
landscape and to protect and advance our investments in
research for public benefit.
Let me provide a recent example of how these planning
processes work. The National Institute of Allergy and
Infectious Diseases (NIAID) has used working groups to
identify scientific opportunities in areas where there are
pressing public health needs. One example is influenza--both
seasonal influenza, which kills up to 49,000 Americans each
year, as well as pandemic influenza such as the recent 2009
H1N1 pandemic. In early 2006 NIAID convened a Blue Ribbon
Panel on Influenza Research to help identify areas in which
progress was needed. This panel recommended eight areas in
which there were opportunities for scientific advancement,
including research on improved influenza vaccines. To
continue and build upon these efforts, NIAID released NIAID
Influenza Research: 2009 Progress Report, which identified
the development of ``universal'' influenza vaccines as an
expanding area of scientific opportunity.
Currently, the NIAID's extramural researchers are pursuing
multiple vaccine strategies for the development of a
universal influenza vaccine. In addition, researchers at the
NIAID Vaccine Research Center are making significant progress
towards the development of such a vaccine. They have tested
in animals a two-step, prime-boost vaccine that generates
neutralizing antibodies against many strains of influenza
virus. Animal studies of this technique have proven
promising, and researchers will soon study the approach in
human clinical trials. This past summer, NIAID sponsored,
with the Food and Drug Administration, a scientific meeting
to revisit progress and challenges with regard to the
development of universal influenza vaccines. This
comprehensive NIAID effort is just one example of how the NIH
constantly examines scientific opportunities and conducts
research evaluation and planning activities within its
current statutory authority.
You next asked me to address the NIH's ability to foster
groundbreaking discoveries without legislation that directs
it to address a specific disease or group of diseases. While
we seek always to be responsive to the concerns of the
public, often expressed through ``report language'' in
appropriations bills, the NIH has considerable statutory
authority to plan and oversee the research that leads to
important discoveries. Because our science often produces new
and unexpected findings and because medicine is often
confronted with altered or unyielding threats to public
health, the NIH Institutes and Centers must constantly assess
their research plans and portfolios. For example, the
National Cancer Institute recently organized a group to
perform a ``horizon scan'' of pancreatic ductal
adenocarcinoma (PDAC) research, building on previous planning
exercises in 2001 and 2008. This new group will examine
current research efforts, benchmark our scientific under
aiding, and identify promising and possibly underexplored
areas for future research in hopes of improving the still
dire outcome of this dreaded disease.
You further asked me to address the impact of disease-
specific legislation on the NIH's ability to allocate
resources freely and to study basic biology and mechanisms.
When providing technical assistance to the Congress on
possible legislation, the NIH generally suggests that
Congress provide the maximum flexibility for our mission.
Basic

[[Page S7164]]

research that may lack any overt connection to specific
diseases is the foundation for disease-specific translational
and clinical research, and it must be preserved to ensure the
discoveries that later drive applied work on individual
diseases. If Congress is too proscriptive when it directs the
NIH to focus on specific diseases, the agency loses its
valued flexibility to allocate resources in a manner that
optimizes the likelihood that the scientists we support will
discover the underlying disease mechanisms that must be
understood to achieve our goal of improving the health of our
nation.
Let me provide an example of basic research that addresses
several specific types of cancer. As early as the 1980s,
cancer researchers observed mutations in a certain critical
gene, the KRAS gene, in a variety of human cancers, including
about a third of lung cancers, about half of colon cancers,
and as many as 95 percent of PDACs. Basic research on a wide
variety of cell types, from yeast to human, has taught us
that the KRAS gene encodes an unusual signaling protein that
acts in conjunction with other proteins as a molecular ``on/
off' switch for signals promoting cellular growth. Mutations
in this gene leave the switch ``on'', resulting in persistent
cell growth and division. Despite what we know about KRAS
mutations, and despite extensive efforts in both industrial
and academic research sectors, we have not yet been able to
counter these mutations therapeutically. In order to treat
PDAC and many other cancers exhibiting KRAS mutations, we
must focus on research that increases our understanding of
how such mutations drive the biological effects that cause
these devastating diseases. Given what we have learned about
molecular mechanisms, it would be counterproductive to limit
that effort to a specific cell type. In other words, if
Congress directs the NIH to study specific diseases without
flexibility, it can limit our ability to follow the best
leads in science and to pursue discoveries that move an
entire research field forward in a way that produces maximum
benefit to the public.
Finally, you asked me to address how genomics has
revolutionized the study of underlying mechanisms of disease.
Recent advances in genomics are transforming the way science
is conducted. Our understanding of basic mechanisms has
increased exponentially with the widespread adoption of high-
throughput screening, genome sequencing, and advances in
bioinformatics. This transformation of the biosciences is
profoundly affecting the practice of medicine. Advances in
the biological sciences have changed the way we view disease.
We now recognize that dysfunction of specific biochemical
pathways that govern cell behavior may be similar in
superficially disparate diseases or quite different in
patients with the same category of diagnosis.
When you and I were in medical school, all patients with
cancers of a given organ were treated with the same
combination of chemotherapy, radiation therapy, or surgery.
With today's application of high-throughput screening and
genomics, we are now shifting to treating an individual's
cancer with a kind of ``precision medicine'' that is based
upon the patient's genome and the genome of his or her
individual tumor. As an industry scientist recently told the
New York Times, ``[t]he old way of doing clinical trials
where patients are only tied together by the organ where
their cancer originated, those days are passing.'' This is
just one more reason why directing research resources toward
a particular disease without flexibility, as defined in the
pre-genomic era, can run counter to scientific opportunity.
In closing, let me be clear that the NIH is not permitted
to take a position on the recalcitrant cancer legislation
being considered by the Congress. Such statements can only be
issued by the Office of Management and Budget as a Statement
of Administration Policy.
Thank you for your continued support of the NIH.
Sincerely yours, with best personal regards,
Francis S. Collins, M.D., Ph.D.,
Director

Mr. COBURN. It is outlining NIH's and specifically the National
Cancer Institute's concerns with this type of directive from us. I
think they care about whether we solve these problems associated with
these recalcitrant cancers. I think people who want to get it solved
are true in their motives to try to solve it.
But there are some significant things in his letter that I would like
to quote for my colleagues because I think it might just change your
mind about us micromanaging what they are doing.
First, he says:

We have all the authorities to do whatever we need to do
with the money that you have given us. We can do all these
things you want us to do. If you tell us to do them, we will
do them. But we already have the authority to go where we
think we are going to get the best results in the quickest
way.
NIH constantly examines scientific opportunities and
conducts research evaluation and planning opportunities
within its current statutory

In other words they are looking, trying to figure out how they
change, where they go now

The national cancer institute recently organized a group to
provide a ``horizon scan'' of pancreatic ductal
adenocarcinoma ad carcinoma, building on previous planning

They just did all this. They have just been through a total review of
pancreatic adenocarcinoma, and they have just shifted where they are
spending funds to address this issue.

Basic research that may lack any overt connection to
specific diseases is the foundation for disease-specific
translational and clinical research.

We must preserve this translational research if in fact we will want
to eventually apply it to specific diseases. So I would say this bill,
``pre'' the genomic age, would be a right thing for us to do. It is the
wrong thing for us to do because what we are actually going to do is we
are going to force the NIH to do things that are not going to benefit
the results--the outcome of these diseases and waste money on what is
being directed.
Do we have a time limit?
The PRESIDING OFFICER. Evidently; 10 minutes equally divided.
Mr. COBURN. I ask unanimous consent to continue until I finish my
remarks.
The PRESIDING OFFICER. Is there objection?
Mr. LEVIN. I am distracted. What is the unanimous consent request?
Mr. COBURN. I wanted to finish my remarks.
Mr. LEVIN. I understand. Was it an additional 5 minutes?
Mr. COBURN. It will not be much longer than that. I am certainly not

Mr. LEVIN. I have no objection.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. COBURN. ``Advances in the biological sciences have changed the
way we view disease. We now recognize the dysfunction of specific
biochemical pathways''--not disease-specific pathways--``biochemical
pathways that govern cell behavior that may be similar in superficially
disparate diseases or quite different in patients with the same
disease.
What they are saying to us, through this letter, is that, of course,
they are going to do what we tell them to do. But the very intent of
what we are wanting to accomplish is we are going to delay the outcome
because we have not significantly, in the last 3 years, significantly
increased NIH's budget. So limited dollars are going to be spent as
directed through this recalcitrant bill that are not going to direct
the translational research and biochemical pathway research they are
in.
I would just tell my colleagues in the next 10 years we are going to
see such phenomenal changes in our approach to disease, and the
treatments for that, and the reason we are going to see it is because
we stop looking at diseases and started looking at translational
genomics and biochemical pathways.
I will be one of the few who vote against this. I am fine with a
voice vote if no other colleagues object. I have no problems with that.
But in the name of doing good I suggest that we are actually going to
limit our ability to achieve, at a sooner time, the cures that
everybody who is supporting this bill would like to see.
I yield.
The PRESIDING OFFICER. The Senator from Rhode Island.
Mr. WHITEHOUSE. With the permission of the chairman, may I ask for a
voice vote at this time?
Mr. LEVIN. I know of nobody else who wishes to speak on this
amendment--I withhold that so we can hold off and see if anybody else
wishes to speak.
Mr. President, I know of no further debate on this amendment.
The PRESIDING OFFICER. If there is no further debate, the question is
on agreeing to the amendment.
The amendment (No. 3180) was agreed to.
Mrs. BOXER. Mr. President, I move to reconsider the vote.
Mr. LEVIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. Senator Portman, I believe, wishes to speak relative to an
amendment? I believe the Senator from Ohio wishes to speak relative to
an amendment? I ask Senator Portman be recognized for--how many
minutes, may I ask the Senator?
Mr. PORTMAN. Seven minutes.
Mr. LEVIN. For up to 10 minutes, to speak up to 10 minutes.

[[Page S7165]]

The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. PORTMAN. I ask unanimous consent to speak as in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.

Partisan Rule Change

Mr. PORTMAN. Mr. President, I commend the chairman and ranking member
for the way they are handling this bill. As we have seen on the floor
today, Democrats and Republicans alike are able to offer amendments and
have an honest debate on the issues, which is exactly how we ought to
be operating.
As the fiscal cliff approaches we should not only be working together
across the aisle to address issues like we are today with the Defense
authorization bill, but we should also be working to address other
critical issues, including tax issues and spending issues. That is what
I wanted to address.
We have a lot of challenges. Instead of pulling together we seem to
be pulling apart, and I am specifically referring to some of the
suggestions by some in the majority that we consider a controversial
and partisan rule change that would marginalize minority Members and in
a way that breaks the current rules to change the rules.
What I mean by that is it takes 67 votes to change a rule in the
Senate. That is a rule, by the way, that dates back to 1917. The reason
that is in place is because, obviously, folks wanted to force the
majority and minority to work together to make those rule changes. We
don't get a two-thirds vote without that. I think it is important that
the basic rules are ones that are agreed on.
The party in the majority tends to change a lot around here. In fact,
we have shifted back and forth between Republicans and Democrats 7
times in the past 30 years. So at one point we are in the majority, one
point in the minority, and that is why having these basic rules in
place make sense.
There are some proposing we get around the 67-vote majority by some
procedure where, instead of having a two-thirds vote, we would just
have a majority vote to change a rule. Regardless of what rule that
might be--some would say it would be on the motion to proceed and other
aspects of the filibuster. Of course it would set a precedent that
could change the rules for other things as well. I think that would
prove counterproductive in the short term. I also think it would prove
counterproductive in the long run for the Senate.
All of us are focused, I hope, on the serious economic challenges
that we face with the fiscal cliff impending. I think this would be the
wrong time for us to put this body into an even more partisan
environment by changing these rules.
Again, I commend the chairman and ranking member for what we are
doing today because this is an example of how the Senate can work and
has worked on several bills in my short time here. But in other cases
we have not been able to do that. I think that involves both parties,
again, working together to solve these problems.
The issue before us is the fiscal cliff, and I also want to address
briefly, if I may, the ongoing discussion about taxes and what we
should do regarding taxes. I want to take this opportunity to talk a
little about why some of us believe that raising tax rates would be
counterproductive at a time when our economy is so weak, and that there
is another opportunity, and that is for tax reform.
The jobs crisis and the debt crisis are linked, and the President has
made that point. He has said his priority in the grand bargain
discussions, the fiscal cliff discussions, is to ensure that we
encourage economic growth and jobs. So we should use this as an
opportunity to address the underlying problems that are holding back
our economy, an economy that is in tough shape today. Unemployment is
still stuck just below 8 percent. The projections CBO has given us for
the next year, by the way, are continued anemic growth in the economy
and, in fact, unemployment going up, not down.
The economic case against imposing higher taxes is overwhelming. We
all know if we tax something, people tend to do less of it and that is
one reason why smoking is taxed, to get people to quit smoking. So why
do we want to raise taxes on working, saving, and investing? Instead,
we should encourage policies that create jobs, not discourage them
through higher taxes.
Don't take it from me. There are others who have commented on this on
both sides of the aisle. Christina Romer, President Obama's former
Chief Economic Adviser, has written that in most circumstances, a tax
increase that equals about 1 percent of GDP actually lowers GDP by
about 3 percent. Harvard economist Marty Feldstein has written that a
$1 increase in tax rates tends to cost the economy about 76 cents of
growth.
There is a global perspective on this as well because other countries
have gone through these fiscal problems and they have chosen to cut
spending in some cases and raise taxes in other cases. There is a
Harvard economist, Alberto Alesina, who has recently studied the
experience of 17 countries in the developed world, such as the United
States. Over the past 25 years, he has looked at how they have
attempted to reduce their budget deficits. Based on IMF data, which is
the International Monetary Fund, he concluded that ``tax-based deficit
reduction'' was, in his words, ``always recessionary.'' By contrast,
reducing deficits by cutting spending and enacting pro-growth reforms,
including tax reform, actually spurred economic growth, according to
the same study.
I think that this is consistent with our own economic history.
Between 1948 and 1961, a period when the highest income tax rate rose
from 82 to 91 percent, we went through some tough times. We had four
recessions. Thankfully, our exports that helped rebuild Europe
following World War II helped keep the economy moving. Reducing the top
tax rate to 70 percent also helped, but the 1970s were still a period
of stagnation, recession, double-digit unemployment, double-digit
interest rates, double-digit inflation. It was when Ronald Reagan
reduced rates to 28 percent that we saw this impressive period of
growth, maybe the most impressive ever.
It is something we saw again in 1997 when capital gains taxes that
were cut under President Clinton and the Republican leadership in
Congress were followed by a surge of investment and growth into the
late 1990s. Again, after the 2003 tax rate cuts, we saw another example
of the power of low tax rates. This was the 2003 tax cuts. In the six
quarters before those rate cuts, the economy lost 1 million jobs. In
the six quarters after those tax rate reductions, in 2003, economic
growth nearly doubled and 2.3 million jobs were added.
Some tax increase advocates may assert a willingness to accept slower
economic growth in the cause of deficit reduction and that is a
legitimate point of view, that we need to have slower economic growth
because deficit reduction is so important. But I would also point out
some statistics. Slow growth also means less tax revenue. The White
House's own data suggests that even a .26-percent reduction in economic
growth--which is likely with big tax hikes--would wipe out the entire
$800 billion in promised deficit reduction from higher tax rates.
Growth is so incredibly important to reducing our debt and deficit and
getting in control of our fiscal situation. So tax rate increases are
not only bad economic policy, but they tend to be bad budget policy.
Tax reform is needed, and through tax reform we could have higher
revenues. But both theory and practice make a convincing case that
keeping rates low is better for the economy and jobs. Structural
spending reforms combined with pro-growth tax reform, in my view, are
the right approach and I think historically that has proven to be true.
I will speak for myself as one Republican, although other Republicans
as well are willing to accept new revenues, but the right way to do it
is through reforming our outdated Tax Code and having these structural
reforms that everybody feels are necessary.
Both the corporate and individual sides of the Code are marked by
relatively high marginal rates and a complex maze of tax preferences
that distort economic decisions, misallocate capital, and allow some
taxpayers to avoid paying their share. Tax reform can kill two birds
with one stone. By capping or eliminating inefficient tax

[[Page S7166]]

preferences, we can avoid raising corporate and individual rates,
without adding a dime to the deficit, by the way. In fact, if done
right, tax reform will increase revenues by spurring growth, job
creation and, therefore, bigger tax receipts.
Tax reform is both a fiscal and competitive necessity for our
country. It has been more than 25 years since we substantially reformed
the Tax Code and twice as long--about 50 years--since we did a bottom-
up review of our international tax laws. The world has changed a lot in
that time period, yet America has not kept up. The underlying
assumptions in our Tax Code are, frankly, out of step with today's
complex global economy. This is especially evident in our corporate Tax
Code. The United States is now the highest corporate tax country among
all the developed countries in the developed world. Canada has lowered
its federal corporate rate from 16.5 percent to 15 percent, bringing
its combined rate to 25 percent--nearly 15 points lower than the U.S.
combined rate. Our rate is 39.2 percent when we combine the State and
Federal burden. The Federal burden is 35 percent and the State burden
is closer to 36 percent. So right now the average among all of the
developed countries in the world is 25.1 percent, and the U.S. rate
stands at 39.2 percent when we combine the State and Federal burdens.
A similar trend, by the way, has played out with respect to
international tax rules, as our trading partners, including Japan and
Britain, have moved to a more competitive, territorial-like tax regime
over the past 10 years, which encourages movement of investment,
capital, and jobs overseas. So there is a simple point here which is,
by standing still, the United States is falling behind. The resulting
drag on American competitiveness and job creation is real and
substantial.
The solution is tax reform that broadens the tax base by scaling back
tax preferences and cutting the corporate rate. We could cut it to 25
percent and scale back the deductions, credits, and exemptions, and
have a competitive, territorial system and have it all be revenue
neutral. There is such a proposal by the Joint Committee on Taxation
here in Congress.
I am not saying it is easy. Some of these preferences, of course, and
loopholes are ones that are very difficult to reduce or eliminate, but
it would be the right thing to do for our economy. I think we have seen
some signs of developing bipartisan consensus on this issue and I am
hopeful we will see the same movement for pro-growth individual tax
reform, because reforming the entire Tax Code is critical to regaining
competitiveness, spurring growth, and producing the revenues we need to
pay for important public priorities.
The smart way to raise revenue is not through tax hikes that will
shrink our economy, but rather through tax reform designed to help grow
the economy and help make American workers and businesses more
competitive so we can compete and win in the global economy.
Again, today as we are approaching the fiscal cliff I hope this
Senate works together on a bipartisan basis to work toward tax reform
in a way to increase revenues and grow our economy while we look at the
important structural reforms we have to make in order to solve the
fiscal crisis we face.
Thank you, Mr. President.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. INHOFE. Mr. President, let me elaborate a little bit on what the
Senator from Ohio just said. I think it is important to remember that
the whole idea was a Democratic idea and not a Republican idea. Some of
us remember. We were not actually here at the time, but in the 1960s
during the Kennedy administration--of course, the last time I checked
he was a Democrat--he was the one who made this statement. I have
quoted him very often. He said, We need more revenue to take care of
the great society programs that he had kind of inherited and was
furthering. He said, The best way to increase revenue is to decrease
marginal rates. He did that. I remember the top rate went down from 90
percent to 70 percent, and during his period of time, the total amount
of revenue that came from marginal rates raised from $94 billion to
$153 billion.
Then, a few years later, along came Ronald Reagan and the total
amount of revenue that was raised for marginal rates in the year 1980
was $244 billion and in 1990 it was $466 billion, which almost doubled
in the decade that had the most streamlining and reduced reduction in
marginal rates in our history.
So I think it is interesting to observe that this is not--it wasn't
all a Republican idea, but it is something that has worked every time
it has been tried.
Mr. PORTMAN. I thank my colleague from Oklahoma. I wish to follow up
briefly on that and say that in 1997, when we decided to move toward a
balanced budget agreement when President Clinton was President, there
was also an agreement to cut the capital gains rate. We sometimes
forget the capital gains rate cut produced a lot of revenue that was
not expected. As a result, we got to a unified balanced budget on a
unified basis more rapidly than anybody thought we would. It came 2 or
3 years sooner than projected, in part because there was about $100
billion of new revenue that showed up the next year from the fact that
we did reduce the capital gains rates.
I understand the need for us to deal with the deficit and to have
revenue. There is no question that this is necessary, but to do it by
raising rates alone, which is what is being proposed by some people, is
going to result in lower economic growth, it is going to result in job
loss, and it is not going to have the intended benefit on the revenue
side. The alternative is clear, which is, for the first time in a
couple of decades, we need to get busy on reforming this Tax Code as
Ronald Reagan did with Democratic help, including Democratic Senators
such as Phil Bradley here in the U.S. Senate, to encourage growth and
to encourage the kind of economic growth that is going to result in
more revenue coming in. We should not miss this opportunity to do that.
As I said earlier, I believe there is a building consensus around
that. We saw it in the Simpson-Bowles Commission. We have seen it in
the Rivlin-Domenici work, and other outside groups have looked at this,
at our Tax Code. And by broadening the base, we can be more competitive
and through growth have additional revenues coming in.
Mr. INHOFE. I appreciate the comments of the Senator from Ohio. I
would go a little farther and say this obsession that the only way to
do these things is to raise taxes, I think that flies in the face of
history.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk called the roll.
Mrs. BOXER. Mr. President, I ask that the quorum call be dispensed
with.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. BOXER. Mr. President, I listened to the Senator from Ohio and I
want to be heard because he is talking about the fiscal cliff and how
upset he is at the thought that the wealthiest people in America might
go back to the tax rates we had under Bill Clinton when we had the
greatest prosperity, we had 23 million new jobs, and we balanced the
budget to the point where we even had a surplus. My friend comes down
here and complains that the proposal on the table would give 98 percent
of the people a tax cut and he is upset that 2 percent of the people
might have to go back to the rates under Bill Clinton.
I want to say something. We just had an election. We had a big
election. We had a tough election. We had an expensive election. One of
the major parts of that election revolved around what do we do about
the deficits, what do we do about economic growth, what do we do about
spending. We discussed it in the Senate races, we discussed it in the
House races, and, of course, President Obama and candidate Governor
Romney discussed it again and again.
My friend talks about consensus. Let me tell my colleagues the
consensus. More than 60 percent of the people agree with President
Obama and the Democrats that we ought to climb down off this fiscal
cliff in the next 5 minutes and pass what the Senate passed, which is
to renew all the Bush tax cuts and go back to those over $250,000 to
the rates of Bill Clinton. That is what we passed here. That

[[Page S7167]]

would bring us almost $1 trillion over 10 years. That will get us to
climb down that cliff.
Then we have other parts of the cliff, there is no question about it,
including the automatic sequester. I think it is easy to deal with that
by bringing home some of the overseas account money and applying it to
the sequester and getting rid of at least half of that sequester, and
maybe all of the sequester. But, no, people are going to listen to
these speeches every day about how we are obsessed with taxes.
What are people talking about when they say obsessed with taxes? I
will tell my colleagues what I am obsessed about. I am obsessed with
the fact that we passed a tax cut for 98 percent of the American people
and our friends are so worried about the millionaires and the
billionaires that they will not allow that bill to be voted on in the
House. So people can stand up here morning, noon, and night, and I want
them to and I respect their views, believe me, but I do not agree with
them.
It is no wonder that the American people are confused. We know we
have the fiscal cliff. We know we don't want to see tax rates go up for
the middle class. Yet the Republicans say they are going to hold up all
those tax breaks for 98 percent of our people because they want to hold
on to the tax breaks for billionaires and for millionaires. We had an
election about that.
People agreed with us. I suppose we are going to have to hear these
speeches every day about how we are going to grow our way out of the
deficit. We are going to grow our way out of the deficit? Really? Look
what happened under George W. Bush. He inherited surpluses. He turned
it into deficits as far as the eye can see, with huge tax cuts to the
millionaires and billionaires--huge--the very tax cuts our friends are
defending right now. He did two wars on the credit card and we wound up
in a mess.
So we have to come together with the best ideas that we can have. I
know we can reach agreement. But let's do the first step, which is to
take care of 98 percent of the people. The Republicans want to have tax
breaks for 100 percent of the people. We are saying: Can you take 98
percent?
If I stopped you on the street and said: I am willing to give you 98
percent of what you say you want, and you walk away from me, and you
attack me, and you say I am not ready to do anything, I honestly think
people would scratch their heads.
So I think it is clear. The Senate passed a bill to renew the tax
breaks for 98 percent of the people. We are saying up to $250,000 in
income, we go right back to those Bush tax cut rates. But over
$250,000, we go to the Clinton years, pay a little bit more, so we can
attack this deficit, so we can make the investments we need to make in
this great country of ours.
I will tell you, if the Republicans can do this, we are going to see
smiles on the faces of the people. I was very happy to see that Tom
Cole over in the House, who was the head of the RCC, the Republican
Congressional Committee over there, says it is time to come to an
agreement on that proposal.
So I say to the Republicans: We are giving you 98 percent. Take it.
Then let's sit down and debate the rest of it. There are a lot of other
things we have to do. There is the AMT. We have to do a doc fix. We
have to do a lot of other things. I am willing to compromise on those
things. But let's at least get those tax cuts in place right now before
this holiday season so that the middle class knows they are not going
to face a tax increase. I can say honestly that the American people
would think we were doing the right thing if we were to see the House
take up the Senate bill and pass it.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. LIEBERMAN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LIEBERMAN. Mr. President, I rise to speak on a broadly bipartisan
amendment that I have filed, and that I hope and believe will be called
up at some point. Obviously, I would like it to be adopted by unanimous
consent but, if not, it merits a rollcall vote, and I am confident it
will be addressed on a rollcall vote.
This amendment is amendment No. 3090 to this National Defense
Authorization Act for Fiscal Year 2013. It will reauthorize two very
important and very broadly supported programs--the Assistance to
Firefighters, AFG, Program--which otherwise used to be known as FIRE,
the FIRE Act--and the Staffing for Adequate Fire and Emergency Response
Program, known as SAFER. This amendment also reauthorizes the U.S. Fire
Administration for 5 years, an agency which is a component of FEMA that
is focused on supporting firefighters and EMS personnel.
This amendment reauthorizes AFG and SAFER for 5 years but it also
takes much needed steps to ensure that the firefighters not only have
the equipment, vehicles, and personnel that we need them to have to do
the jobs they do for us in our country every day, the amendment also
helps departments in communities struggling with economic difficulties,
creating a hardship waiver for both of these fire programs--AFG and
SAFER--that allows FEMA to waive requirements in communities that have
been hard hit in these tough economic times.
Some people might say: Well, why has the Federal Government
established these programs to support firefighting? Aren't those local
responsibilities? Well, of course, the Federal Government has partnered
with many local and State responsibilities that we deem to have
national importance.
There is no question since 9-11-2001, as we witnessed those
firefighters putting their lives on the line, running into danger to
save people as opposed to running away from it--and we contemplated
after 9-11-2001, as we have consistently in the Senate Homeland
Security Committee, how we would respond--are we ready to respond to,
God forbid, another mass terrorist attack on the United States? The
first line of defense will be the local firefighters, the local law
enforcers, and the local emergency medical personnel.
So these brave and skillful firefighters around America now become
part of the first line of response to the kind of threats in this
unconventional age in which we live that our homeland security is
threatened by.
As important as it is to help our firefighters, obviously, many of us
on both sides of the aisle, who have cosponsored both of these bills,
understand we have to demand accountability as we spend taxpayer
dollars in a time when we are trying to reduce our deficit and debt.
For this reason, the amendment does a couple of things. It includes
provisions to prevent earmarks from being attached to these programs.
AFG and SAFER actually have never been earmarked, which is an
impressive accomplishment. In other words, these are formula programs
in that sense and decided on a merit basis, decided on applications,
never earmarked from Congress. We should keep it that way.
But this amendment, recognizing the tough economic times we are in,
also reduces the authorizations for these two programs, AFG and SAFER,
by more than 30 percent--more than 30 percent. So we are meeting a
national need with the authorization of these programs, but we are
doing it in a way that is mindful of the tough fiscal times we are in.
Supporting our Nation's firefighters and emergency medical service
responders is a national priority. It is, in my opinion, one that is
not only broadly supported by Members of both parties and an occasional
Independent here in the Senate, but is broadly supported by the
American people regardless of where they live all over this country.
So, Mr. President, I will, with the cooperation and support of the
two managers of the bill, who are supporters of these two pieces of
legislation--Chairman Levin and Senator McCain--look forward to the
time when I can ask that this amendment be the pending business and
that we can either adopt it by consent or bring it up for a rollcall
vote.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.

[[Page S7168]]

Mr. CHAMBLISS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. CHAMBLISS. Mr. President, I ask unanimous consent I be allowed to
speak as in morning business.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. CHAMBLISS. Mr. President, I rise in support of an Ayotte
amendment, No. 3245, an amendment that makes permanent the current
prohibition on the use of defense funds to transfer or release
Guantanamo Bay detainees into the United States. This amendment is
identical in substance to section 1027 of the Fiscal Year 2012 National
Defense Authorization Act, except that it prohibits the use of the
funds permanently.
We know the President said he would close Guantanamo almost 4 years
ago. I thought it was a bad idea then; I think it is an even worse idea
today. We should move beyond campaign promises and think about what
makes sense on this issue. The stubborn refusal to increase the Gitmo
detainee population has been the key stumbling block in establishing an
effective long-term detention policy.
The American people have been pretty unified in their opposition to
bringing Gitmo detainees to the United States, and I believe we should
listen to them.
I understand that Senator Feinstein just released the GAO report she
requested regarding facilities and factors to consider if Gitmo
detainees were brought to the United States. I have reviewed this
report, and I have to respectfully disagree that this report offers any
support whatsoever for the idea that Gitmo detainees can or should be
moved to the United States.
The very first page of the GAO report lays out in stark terms the
serious problems that would come into play if detainees from Guantanamo
were transferred to the United States: legal and cost considerations,
compliance with U.S. and international laws, collecting intelligence
information, and ensuring the safety and security of the general public
and personnel at these facilities.
The report makes very clear that the Department of Justice does not
have the authority to maintain custody of detainees under the AUMF. In
other words, even without the prohibition on transfers of detainees to
the United States, it would be illegal for the Bureau of Prisons or the
Marshals Service to take custody of Guantanamo detainees.
Moreover, the Department of Justice told the GAO--and I quote--it
``does not plan to transfer detainees to the United States,'' saying it
raises legal, policy, and resource issues that descriptions of current
policies and practices contained in the GAO report cannot fully
address.
Essentially, the Department of Justice is saying that on top of those
issues already described in the GAO report, such as insufficient
standards for law or war detention, severe overcrowding, and
``implications for the public safety,'' there would be even more issues
that are not mentioned at all. And that is from a Department of Justice
that has fully supported the idea of moving Gitmo detainees into the
United States.
Housing these detainees in DOD corrections facilities does not seem
to be the answer either because of equally troubling legal and safety
issues for detention of these individuals, including the Geneva
Conventions' prohibition on detaining prisoners of war in
penitentiaries.
These are just some of the reasons Congress has prohibited the
transfer of these detainees to the United States and why those
prohibitions must continue.
This prohibition made sense last year and it still makes sense today.
The GAO report only confirms that. The detainees who remain at Gitmo
include the ones who have been determined to be too dangerous to
transfer, including the individuals who were responsible for the
masterminding of the attack on September 11, which we just celebrated
the 11th anniversary of.
So if that is the case, why on Earth would we put these detainees
whom we will not send to other countries in cities and towns across the
United States of America? The Federal Government's primary
responsibility is to keep the American people safe. Keeping these
detainees at Gitmo accomplishes that goal.
I urge my colleagues to support the Ayotte amendment.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Oklahoma.
Mr. INHOFE. Mr. President, I also ask to be recognized as in morning
business.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. INHOFE. Mr. President, the Senator from Georgia is exactly right.
I do not think, in the years I have been here, I have ever seen one
issue where everyone is in agreement. If we go back to 2007, 94 Members
of this Senate got together and they said--and this is all documented--
that: Detainees housed at Guantanamo Bay should not be released into
American society, nor should they be transferred stateside into
facilities.
We all agreed on that. Then we agreed again in 2009 and every year
since then, as the Senator from Georgia has said. But a lot of people
have forgotten. We have had this issue for so many years now, they have
forgotten some of the original reasons why. One of the obvious
reasons--there are three reasons. One was that prisons that hold these
detainees become magnets. I do not think people understand that a
terrorist is not a criminal. He is a terrorist. His job is to train
people to kill other people, to engage in terrorist activities.
Do we truly want them in there talking to all our prisoners? That was
one of the major reasons people were all coalescing around the idea
that we have a great place to put these guys; that is, Guantanamo Bay.
The second reason is the prison guards. They have to be specially
trained in order to guard a prison that has terrorists as opposed to
the normal criminal element.
The third is what FBI Director Robert Mueller has said; that there is
a very real possibility that Gitmo detainees will recruit more
terrorists from among the Federal inmate population and continue al-
Qaida operations from the inside, which is how the New York synagogue
bombers were recruited.
We should not even be debating this. The Ayotte amendment is one that
will take care of this so we do not have to worry about it from year to
year, we do not have to stand here and anguish over this thing that we
have decided several times.
I can remember--I guess it was back in the early administration of
Obama--when he identified 17 areas in the United States that would be
appropriate for incarcerating terrorists whom we would take out of
Gitmo. One of those places happened to be Fort Sill in my State of
Oklahoma. So I went down to Fort Sill. I looked at the facility we had
that was within the Fort Sill facility.
There was a lady there whose name is Sergeant Major Carter. I can
remember when she came up to me she said: Senator, why in the world? Go
back and tell those people back there that they do not understand what
is going on. This is coming from a sergeant major. She happened to be a
Black lady. She had been down there for some time. She said: Go back
and tell them I had two tours in Gitmo. There is no place that is more
humane. There is no place that is taking care of them, no place where
we can secure the area so we protect our prison guards like Gitmo.
She even went on to say one of the biggest problems we had with the
inmates in Gitmo is an overweight problem because they are eating
better than they have ever eaten in their lives. They had medical
attention for diseases they did not know existed.
So we have an opportunity there to do it. I applaud Senator Ayotte
for wanting to address this so we do not have to go through this every
year. Nothing has changed. We know it is a revolving door. People who
go out from there, many of them return to the battleground, and there
is no place else that offers this security and the confinement.
The last thing I would say, we do not have many good deals in
government, and let's see anyone here find a better deal. We have had
this--it was either

[[Page S7169]]

since 1901 or 1904. I cannot remember the year. But as I do recall we
are still under the same lease agreement. That whole facility that we
have at Gitmo, along with the court system down there, all we pay is
$4,000 a year.
Ever heard of a better deal than that? About half the time Castro
does not bill us. So let's take advantage of one of the few good deals
we have, one of the few security deals we have, and make this a
permanent arrangement. I hope we have the chance to vote on it. It is
my understanding we are going to be able to address these and bring
them up, put them in the queue and have votes. Hopefully, that will
even be tonight.
I yield the floor and I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. LEVIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. LEVIN. Mr. President, I ask unanimous consent that it be in order
for the Lieberman amendment, No. 3090, to be called up with the
modification that is at the desk; that the amendment, as modified, be
agreed to; that following disposition of the Lieberman amendment, it be
in order for the following amendments to be called up: Ayotte No. 3245
on Guantanamo and Feinstein amendment No. 3018 on detainees; that there
be up to 20 minutes of debate equally divided in the usual form on the
Ayotte amendment; that upon the use or yielding back of time on the
Ayotte amendment, there be up to 60 minutes of debate equally divided
in the usual form on the Feinstein amendment; further, that at 9:30
p.m. this evening, the Senate proceed to votes in relation to the
Ayotte and Feinstein amendments in the order listed and that no
amendments be in order to the amendments prior to the votes.
The ACTING PRESIDENT pro tempore. Is there objection?
Mr. McCAIN. Reserving the right to object, and I will not object, I
believe we will have a package, also, following this, of amendments
that have been cleared by both sides.
I would like to express my personal appreciation for the cooperative
and compromising fashion in which this unanimous consent agreement was
entered. I would like to thank all parties, including the chairperson
of the Intelligence Committee and others. I think this will allow us to
move forward and complete this legislation sooner rather than later.
There are still a lot of amendments that have been filed, and at some
point that has to stop and at some point we are going to have to finish
all these. Many of them are duplicative and many of them are not
particularly necessary, but I think we have made a giant step forward.
I am confident we can complete this authorization bill and we will
continue the record of now some 51 years of having completed an
authorization bill.
I thank the chairman for his leadership.
The ACTING PRESIDENT pro tempore. Is there objection? Without
objection, it is so ordered.
The Senator from Michigan.
Mr. LEVIN. Mr. President, I ask unanimous consent that any further
amendments must be filed no later than 7:30 tonight.
The ACTING PRESIDENT pro tempore. Is there objection?
Mr. DURBIN. Mr. President, reserving the right to object, does this
apply to second-degree amendments?
Mr. LEVIN. If there is an amendment filed tonight by 7:30. It could
be offered as a second degree at some later time, but it has to be
filed tonight by 7:30.
Mr. KYL. Mr. President, I would indulge my colleague, apparently
there are two people on our side we would have to check with. I ask if
our colleague could withhold that request to see if we can work it out.
I would also ask, is it not possible that if further amendments can
be worked out to be voted on tonight after the two that are scheduled
to be voted on, there could be other votes tonight to try to continue
to dispose of amendments on the bill; is that correct?
Mr. LEVIN. The Senator is correct. These are not the last two votes
tonight necessarily at all. As of now, we are still planning on having
votes tomorrow.
The ACTING PRESIDENT pro tempore. Objection is heard to the filing
deadline request.
Mr. LEVIN. I withdraw that request.
The ACTING PRESIDENT pro tempore. It is withdrawn.

Lieberman Amendment No. 3090, as Modified

The ACTING PRESIDENT pro tempore. The clerk will report the Lieberman
amendment.
The legislative clerk read as follows:

The Senator from Michigan [Mr. Levin], for Mr. Lieberman,
proposes an amendment numbered 3090, as modified.

The amendment (No. 3090), as modified, is as follows:

At the end of division A, add the following:

TITLE XVIII--FEDERAL ASSISTANCE TO FIRE DEPARTMENTS

Subtitle A--Fire Grants Reauthorization

SEC. 1801. SHORT TITLE.

This subtitle may be cited as the ``Fire Grants
Reauthorization Act of 2012''.

SEC. 1802. AMENDMENTS TO DEFINITIONS.

(a) In General.--Section 4 of the Federal Fire Prevention
and Control Act of 1974 (15 U.S.C. 2203) is amended--
(1) in paragraph (3), by inserting ``, except as otherwise
provided,'' after ``means'';
(2) in paragraph (4), by striking `` `Director' means'' and
all that follows through ``Agency;'' and inserting ``
`Administrator of FEMA' means the Administrator of the
Federal Emergency Management Agency;'';
(3) in paragraph (5)--
(A) by inserting ``Indian tribe,'' after ``county,''; and
(B) by striking ``and `firecontrol' '' and inserting ``and
`fire control' '';
(4) by redesignating paragraphs (6) through (9) as
paragraphs (7) through (10), respectively;
(5) by inserting after paragraph (5), the following:
``(6) `Indian tribe' has the meaning given that term in
section 4 of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450b) and `tribal' means of or
pertaining to an Indian tribe;'';
(6) by redesignating paragraphs (9) and (10), as
redesignated by paragraph (4), as paragraphs (10) and (11);
(7) by inserting after paragraph (8), as redesignated by
paragraph (4), the following:
``(9) `Secretary' means, except as otherwise provided, the
Secretary of Homeland Security;''; and
(8) by amending paragraph (10), as redesignated by
paragraph (6), to read as follows:
``(10) `State' has the meaning given the term in section 2
of the Homeland Security Act of 2002 (6 U.S.C. 101).''.
(b) Conforming Amendments.--
(1) Administrator of fema.--The Federal Fire Prevention and
Control Act of 1974 (15 U.S.C. 2201 et seq.) is amended by
striking ``Director'' each place it appears and inserting
``Administrator of FEMA''.
(2) Administrator of fema's award.--Section 15 of such Act
(15 U.S.C. 2214) is amended by striking ``Director's Award''
each place it appears and inserting ``Administrator's
Award''.

SEC. 1803. ASSISTANCE TO FIREFIGHTERS GRANTS.

Section 33 of the Federal Fire Prevention and Control Act
of 1974 (15 U.S.C. 2229) is amended to read as follows:

``SEC. 33. FIREFIGHTER ASSISTANCE.

``(a) Definitions.--In this section:
``(1) Administrator of fema.--The term `Administrator of
FEMA' means the Administrator of FEMA, acting through the
Administrator.
``(2) Available grant funds.--The term `available grant
funds', with respect to a fiscal year, means those funds
appropriated pursuant to the authorization of appropriations
in subsection (q)(1) for such fiscal year less any funds used
for administrative costs pursuant to subsection (q)(2) in
such fiscal year.
``(3) Career fire department.--The term `career fire
department' means a fire department that has an all-paid
force of firefighting personnel other than paid-on-call
firefighters.
``(4) Combination fire department.--The term `combination
fire department' means a fire department that has--
``(A) paid firefighting personnel; and
``(B) volunteer firefighting personnel.
``(5) Firefighting personnel.--The term `firefighting
personnel' means individuals, including volunteers, who are
firefighters, officers of fire departments, or emergency
medical service personnel of fire departments.
``(6) Institution of higher education.--The term
`institution of higher education' has the meaning given such
term in section 101 of the Higher Education Act of 1965 (20
U.S.C. 1001).
``(7) Nonaffiliated ems organization.--The term
`nonaffiliated EMS organization' means a public or private
nonprofit emergency medical services organization that is not
affiliated with a hospital and does not serve a geographic
area in which the Administrator of FEMA finds that emergency
medical services are adequately provided by a fire
department.
``(8) Paid-on-call.--The term `paid-on-call' with respect
to firefighting personnel means

[[Page S7170]]

firefighting personnel who are paid a stipend for each event
to which they respond.
``(9) Volunteer fire department.--The term `volunteer fire
department' means a fire department that has an all-volunteer
force of firefighting personnel.
``(b) Assistance Program.--
``(1) Authority.--In accordance with this section, the
Administrator of FEMA may award--
``(A) assistance to firefighters grants under subsection
(c); and
``(B) fire prevention and safety grants and other
assistance under subsection (d).
``(2) Administrative assistance.--The Administrator of FEMA
shall--
``(A) establish specific criteria for the selection of
grant recipients under this section; and
``(B) provide assistance with application preparation to
applicants for such grants.
``(c) Assistance to Firefighters Grants.--
``(1) In general.--The Administrator of FEMA may, in
consultation with the chief executives of the States in which
the recipients are located, award grants on a competitive
basis directly to--
``(A) fire departments, for the purpose of protecting the
health and safety of the public and firefighting personnel
throughout the United States against fire, fire-related, and
other hazards;
``(B) nonaffiliated EMS organizations to support the
provision of emergency medical services; and
``(C) State fire training academies for the purposes
described in subparagraphs (G), (H), and (I) of paragraph
(3).
``(2) Maximum grant amounts.--
``(A) Population.--The Administrator of FEMA may not award
a grant under this subsection in excess of amounts as
follows:
``(i) In the case of a recipient that serves a jurisdiction
with 100,000 people or fewer, the amount of the grant awarded
to such recipient shall not exceed $1,000,000 in any fiscal
year.
``(ii) In the case of a recipient that serves a
jurisdiction with more than 100,000 people but not more than
500,000 people, the amount of the grant awarded to such
recipient shall not exceed $2,000,000 in any fiscal year.
``(iii) In the case of a recipient that serves a
jurisdiction with more than 500,000 but not more than
1,000,000 people, the amount of the grant awarded to such
recipient shall not exceed $3,000,000 in any fiscal year.
``(iv) In the case of a recipient that serves a
jurisdiction with more than 1,000,000 people but not more
than 2,500,000 people, the amount of the grant awarded to
such recipient shall not exceed $6,000,000 for any fiscal
year.
``(v) In the case of a recipient that serves a jurisdiction
with more than 2,500,000 people, the amount of the grant
awarded to such recipient shall not exceed $9,000,000 in any
fiscal year.
``(B) Aggregate.--
``(i) In general.--Notwithstanding subparagraphs (A) and
(B) and except as provided under clause (ii), the
Administrator of FEMA may not award a grant under this
subsection in a fiscal year in an amount that exceeds the
amount that is one percent of the available grant funds in
such fiscal year.
``(ii) Exception.--The Administrator of FEMA may waive the
limitation in clause (i) with respect to a grant recipient if
the Administrator of FEMA determines that such recipient has
an extraordinary need for a grant in an amount that exceeds
the limit under clause (i).
``(3) Use of grant funds.--Each entity receiving a grant
under this subsection shall use the grant for one or more of
the following purposes:
``(A) To train firefighting personnel in--
``(i) firefighting;
``(ii) emergency medical services and other emergency
response (including response to natural disasters, acts of
terrorism, and other man-made disasters);
``(iii) arson prevention and detection;
``(iv) maritime firefighting; or
``(v) the handling of hazardous materials.
``(B) To train firefighting personnel to provide any of the
training described under subparagraph (A).
``(C) To fund the creation of rapid intervention teams to
protect firefighting personnel at the scenes of fires and
other emergencies.
``(D) To certify--
``(i) fire inspectors; and
``(ii) building inspectors--

``(I) whose responsibilities include fire safety
inspections; and
``(II) who are employed by or serving as volunteers with a
fire department.

``(E) To establish wellness and fitness programs for
firefighting personnel to ensure that the firefighting
personnel are able to carry out their duties as firefighters,
including programs dedicated to raising awareness of, and
prevention of, job-related mental health issues.
``(F) To fund emergency medical services provided by fire
departments and nonaffiliated EMS organizations.
``(G) To acquire additional firefighting vehicles,
including fire trucks and other apparatus.
``(H) To acquire additional firefighting equipment,
including equipment for--
``(i) fighting fires with foam in remote areas without
access to water; and
``(ii) communications, monitoring, and response to a
natural disaster, act of terrorism, or other man-made
disaster, including the use of a weapon of mass destruction.
``(I) To acquire personal protective equipment, including
personal protective equipment--
``(i) prescribed for firefighting personnel by the
Occupational Safety and Health Administration of the
Department of Labor; or
``(ii) for responding to a natural disaster or act of
terrorism or other man-made disaster, including the use of a
weapon of mass destruction.
``(J) To modify fire stations, fire training facilities,
and other facilities to protect the health and safety of
firefighting personnel.
``(K) To educate the public about arson prevention and
detection.
``(L) To provide incentives for the recruitment and
retention of volunteer firefighting personnel for volunteer
firefighting departments and other firefighting departments
that utilize volunteers.
``(M) To support such other activities, consistent with the
purposes of this subsection, as the Administrator of FEMA
determines appropriate.
``(d) Fire Prevention and Safety Grants.--
``(1) In general.--For the purpose of assisting fire
prevention programs and supporting firefighter health and
safety research and development, the Administrator of FEMA
may, on a competitive basis--
``(A) award grants to fire departments;
``(B) award grants to, or enter into contracts or
cooperative agreements with, national, State, local, tribal,
or nonprofit organizations that are not fire departments and
that are recognized for their experience and expertise with
respect to fire prevention or fire safety programs and
activities and firefighter research and development programs,
for the purpose of carrying out--
``(i) fire prevention programs; and
``(ii) research to improve firefighter health and life
safety; and
``(C) award grants to institutions of higher education,
national fire service organizations, or national fire safety
organizations to establish and operate fire safety research
centers.
``(2) Maximum grant amount.--A grant awarded under this
subsection may not exceed $1,500,000 for a fiscal year.
``(3) Use of grant funds.--Each entity receiving a grant
under this subsection shall use the grant for one or more of
the following purposes:
``(A) To enforce fire codes and promote compliance with
fire safety standards.
``(B) To fund fire prevention programs, including programs
that educate the public about arson prevention and detection.
``(C) To fund wildland fire prevention programs, including
education, awareness, and mitigation programs that protect
lives, property, and natural resources from fire in the
wildland-urban interface.
``(D) In the case of a grant awarded under paragraph
(1)(C), to fund the establishment or operation of a fire
safety research center for the purpose of significantly
reducing the number of fire-related deaths and injuries among
firefighters and the general public through research,
development, and technology transfer activities.
``(E) To support such other activities, consistent with the
purposes of this subsection, as the Administrator of FEMA
determines appropriate.
``(4) Limitation.--None of the funds made available under
this subsection may be provided to the Association of
Community Organizations for Reform Now (ACORN) or any of its
affiliates, subsidiaries, or allied organizations.
``(e) Applications for Grants.--
``(1) In general.--An entity seeking a grant under this
section shall submit to the Administrator of FEMA an
application therefor in such form and in such manner as the
Administrator of FEMA determines appropriate.
``(2) Elements.--Each application submitted under paragraph
(1) shall include the following:
``(A) A description of the financial need of the applicant
for the grant.
``(B) An analysis of the costs and benefits, with respect
to public safety, of the use for which a grant is requested.
``(C) An agreement to provide information to the national
fire incident reporting system for the period covered by the
grant.
``(D) A list of other sources of funding received by the
applicant--
``(i) for the same purpose for which the application for a
grant under this section was submitted; or
``(ii) from the Federal Government for other fire-related
purposes.
``(E) Such other information as the Administrator of FEMA
determines appropriate.
``(3) Joint or regional applications.--
``(A) In general.--Two or more entities may submit an
application under paragraph (1) for a grant under this
section to fund a joint program or initiative, including
acquisition of shared equipment or vehicles.
``(B) Nonexclusivity.--Applications under this paragraph
may be submitted instead of or in addition to any other
application submitted under paragraph (1).
``(C) Guidance.--The Administrator of FEMA shall--
``(i) publish guidance on applying for and administering
grants awarded for joint programs and initiatives described
in subparagraph (A); and
``(ii) encourage applicants to apply for grants for joint
programs and initiatives described in subparagraph (A) as the
Administrator of FEMA determines appropriate to

[[Page S7171]]

achieve greater cost effectiveness and regional efficiency.
``(f) Peer Review of Grant Applications.--
``(1) In general.--The Administrator of FEMA shall, after
consultation with national fire service and emergency medical
services organizations, appoint fire service personnel to
conduct peer reviews of applications received under
subsection (e)(1).
``(2) Applicability of federal advisory committee act.--The
Federal Advisory Committee Act (5 U.S.C. App.) shall not
apply to activities carried out pursuant to this subsection.
``(g) Prioritization of Grant Awards.--In awarding grants
under this section, the Administrator of FEMA shall consider
the following:
``(1) The findings and recommendations of the peer reviews
carried out under subsection (f).
``(2) The degree to which an award will reduce deaths,
injuries, and property damage by reducing the risks
associated with fire-related and other hazards.
``(3) The extent of the need of an applicant for a grant
under this section and the need to protect the United States
as a whole.
``(4) The number of calls requesting or requiring a fire
fighting or emergency medical response received by an
applicant.
``(h) Allocation of Grant Awards.--In awarding grants under
this section, the Administrator of FEMA shall ensure that of
the available grant funds in each fiscal year--
``(1) not less than 25 percent are awarded under subsection
(c) to career fire departments;
``(2) not less than 25 percent are awarded under subsection
(c) to volunteer fire departments;
``(3) not less than 25 percent are awarded under subsection
(c) to combination fire departments and fire departments
using paid-on-call firefighting personnel;
``(4) not less than 10 percent are available for open
competition among career fire departments, volunteer fire
departments, combination fire departments, and fire
departments using paid-on-call firefighting personnel for
grants awarded under subsection (c);
``(5) not less than 10 percent are awarded under subsection
(d); and
``(6) not more than 2 percent are awarded under this
section to nonaffiliated EMS organizations described in
subsection (c)(1)(B).
``(i) Additional Requirements and Limitations.--
``(1) Funding for emergency medical services.--Not less
than 3.5 percent of the available grant funds for a fiscal
year shall be awarded under this section for purposes
described in subsection (c)(3)(F).
``(2) State fire training academies.--
``(A) Maximum share.--Not more than 3 percent of the
available grant funds for a fiscal year may be awarded under
subsection (c)(1)(C).
``(B) Maximum grant amount.--The Administrator of FEMA may
not award a grant under subsection (c)(1)(C) to a State fire
training academy in an amount that exceeds $1,000,000 in any
fiscal year.
``(3) Amounts for purchasing firefighting vehicles.--Not
more than 25 percent of the available grant funds for a
fiscal year may be used to assist grant recipients to
purchase vehicles pursuant to subsection (c)(3)(G).
``(j) Further Considerations.--
``(1) Assistance to firefighters grants to fire
departments.--In considering applications for grants under
subsection (c)(1)(A), the Administrator of FEMA shall
consider--
``(A) the extent to which the grant would enhance the daily
operations of the applicant and the impact of such a grant on
the protection of lives and property; and
``(B) a broad range of factors important to the applicant's
ability to respond to fires and related hazards, such as the
following:
``(i) Population served.
``(ii) Geographic response area.
``(iii) Hazards vulnerability.
``(iv) Call volume.
``(v) Financial situation, including unemployment rate of
the area being served.
``(vi) Need for training or equipment.
``(2) Applications from nonaffiliated ems organizations.--
In the case of an application submitted under subsection
(e)(1) by a nonaffiliated EMS organization, the Administrator
of FEMA shall consider the extent to which other sources of
Federal funding are available to the applicant to provide the
assistance requested in such application.
``(3) Awarding fire prevention and safety grants to certain
organizations that are not fire departments.--In the case of
applicants for grants under this section who are described in
subsection (d)(1)(B), the Administrator of FEMA shall give
priority to applicants who focus on--
``(A) prevention of injuries to high risk groups from fire;
and
``(B) research programs that demonstrate a potential to
improve firefighter safety.
``(4) Awarding grants for fire safety research centers.--
``(A) Considerations.--In awarding grants under subsection
(d)(1)(C), the Administrator of FEMA shall--
``(i) select each grant recipient on--

``(I) the demonstrated research and extension resources
available to the recipient to carry out the research,
development, and technology transfer activities;
``(II) the capability of the recipient to provide
leadership in making national contributions to fire safety;
``(III) the recipient's ability to disseminate the results
of fire safety research; and
``(IV) the strategic plan the recipient proposes to carry
out under the grant;

``(ii) give special consideration in selecting recipients
under subparagraph (A) to an applicant for a grant that
consists of a partnership between--

``(I) a national fire service organization or a national
fire safety organization; and
``(II) an institution of higher education, including a
minority-serving institution (as described in section 371(a)
of the Higher Education Act of 1965 (20 U.S.C. 1067q(a)));
and

``(iii) consider the research needs identified and
prioritized through the workshop required by subparagraph
(B)(i).
``(B) Research needs.--
``(i) In general.--Not later than 90 days after the date of
the enactment of the Fire Grants Reauthorization Act of 2012,
the Administrator of FEMA shall convene a workshop of the
fire safety research community, fire service organizations,
and other appropriate stakeholders to identify and prioritize
fire safety research needs.
``(ii) Publication.--The Administrator of FEMA shall ensure
that the results of the workshop are made available to the
public.
``(C) Limitations on grants for fire safety research
centers.--
``(i) In general.--The Administrator of FEMA may award
grants under subsection (d) to establish not more than 3 fire
safety research centers.
``(ii) Recipients.--An institution of higher education, a
national fire service organization, and a national fire
safety organization may not directly receive a grant under
subsection (d) for a fiscal year for more than 1 fire safety
research center.
``(5) Avoiding duplication.--The Administrator of FEMA
shall review lists submitted by applicants pursuant to
subsection (e)(2)(D) and take such actions as the
Administrator of FEMA considers necessary to prevent
unnecessary duplication of grant awards.
``(k) Matching and Maintenance of Expenditure
Requirements.--
``(1) Matching requirement for assistance to firefighters
grants.--
``(A) In general.--Except as provided in subparagraph (B),
an applicant seeking a grant to carry out an activity under
subsection (c) shall agree to make available non-Federal
funds to carry out such activity in an amount equal to not
less than 15 percent of the grant awarded to such applicant
under such subsection.
``(B) Exception for entities serving small communities.--In
the case that an applicant seeking a grant to carry out an
activity under subsection (c) serves a jurisdiction of--
``(i) more than 20,000 residents but not more than
1,000,000 residents, the application shall agree to make
available non-Federal funds in an amount equal to not less
than 10 percent of the grant awarded to such applicant under
such subsection; and
``(ii) 20,000 residents or fewer, the applicant shall agree
to make available non-Federal funds in an amount equal to not
less than 5 percent of the grant awarded to such applicant
under such subsection.
``(2) Matching requirement for fire prevention and safety
grants.--
``(A) In general.--An applicant seeking a grant to carry
out an activity under subsection (d) shall agree to make
available non-Federal funds to carry out such activity in an
amount equal to not less than 5 percent of the grant awarded
to such applicant under such subsection.
``(B) Means of matching.--An applicant for a grant under
subsection (d) may meet the matching requirement under
subparagraph (A) through direct funding, funding of
complementary activities, or the provision of staff,
facilities, services, material, or equipment.
``(3) Maintenance of expenditures.--An applicant seeking a
grant under subsection (c) or (d) shall agree to maintain
during the term of the grant the applicant's aggregate
expenditures relating to the uses described in subsections
(c)(3) and (d)(3) at not less than 80 percent of the average
amount of such expenditures in the 2 fiscal years preceding
the fiscal year in which the grant amounts are received.
``(4) Waiver.--
``(A) In general.--Except as provided in subparagraph
(C)(ii), the Administrator of FEMA may waive or reduce the
requirements of paragraphs (1), (2), and (3) in cases of
demonstrated economic hardship.
``(B) Guidelines.--
``(i) In general.--The Administrator of FEMA shall
establish and publish guidelines for determining what
constitutes economic hardship for purposes of this paragraph.
``(ii) Consultation.--In developing guidelines under clause
(i), the Administrator of FEMA shall consult with individuals
who are--

``(I) recognized for expertise in firefighting, emergency
medical services provided by fire services, or the economic
affairs of State and local governments; and
``(II) members of national fire service organizations or
national organizations representing the interests of State
and local governments.

``(iii) Considerations.--In developing guidelines under
clause (i), the Administrator of FEMA shall consider, with
respect to relevant communities, the following:

``(I) Changes in rates of unemployment from previous years.

[[Page S7172]]

``(II) Whether the rates of unemployment of the relevant
communities are currently and have consistently exceeded the
annual national average rates of unemployment.
``(III) Changes in percentages of individuals eligible to
receive food stamps from previous years.
``(IV) Such other factors as the Administrator of FEMA
considers appropriate.

``(C) Certain applicants for fire prevention and safety
grants.--The authority under subparagraph (A) shall not apply
with respect to a nonprofit organization that--
``(i) is described in subsection (d)(1)(B); and
``(ii) is not a fire department or emergency medical
services organization.
``(l) Grant Guidelines.--
``(1) Guidelines.--For each fiscal year, prior to awarding
any grants under this section, the Administrator of FEMA
shall publish in the Federal Register--
``(A) guidelines that describe--
``(i) the process for applying for grants under this
section; and
``(ii) the criteria that will be used for selecting grant
recipients; and
``(B) an explanation of any differences between such
guidelines and the recommendations obtained under paragraph
(2).
``(2) Annual meeting to obtain recommendations.--
``(A) In general.--For each fiscal year, the Administrator
of FEMA shall convene a meeting of qualified members of
national fire service organizations and, at the discretion of
the Administrator of FEMA, qualified members of emergency
medical service organizations to obtain recommendations
regarding the following:
``(i) Criteria for the awarding of grants under this
section.
``(ii) Administrative changes to the assistance program
established under subsection (b).
``(B) Qualified members.--For purposes of this paragraph, a
qualified member of an organization is a member who--
``(i) is recognized for expertise in firefighting or
emergency medical services;
``(ii) is not an employee of the Federal Government; and
``(iii) in the case of a member of an emergency medical
service organization, is a member of an organization that
represents--

``(I) providers of emergency medical services that are
affiliated with fire departments; or
``(II) nonaffiliated EMS providers.

``(3) Applicability of federal advisory committee act.--The
Federal Advisory Committee Act (5 U.S.C. App.) shall not
apply to activities carried out under this subsection.
``(m) Accounting Determination.--Notwithstanding any other
provision of law, for purposes of this section, equipment
costs shall include all costs attributable to any design,
purchase of components, assembly, manufacture, and
transportation of equipment not otherwise commercially
available.
``(n) Eligible Grantee on Behalf of Alaska Native
Villages.--The Alaska Village Initiatives, a non-profit
organization incorporated in the State of Alaska, shall be
eligible to apply for and receive a grant or other assistance
under this section on behalf of Alaska Native villages.
``(o) Training Standards.--If an applicant for a grant
under this section is applying for such grant to purchase
training that does not meet or exceed any applicable national
voluntary consensus standards, including those developed
under section 647 of the Post-Katrina Emergency Management
Reform Act of 2006 (6 U.S.C. 747), the applicant shall submit
to the Administrator of FEMA an explanation of the reasons
that the training proposed to be purchased will serve the
needs of the applicant better than training that meets or
exceeds such standards.
``(p) Ensuring Effective Use of Grants.--
``(1) Audits.--The Administrator of FEMA may audit a
recipient of a grant awarded under this section to ensure
that--
``(A) the grant amounts are expended for the intended
purposes; and
``(B) the grant recipient complies with the requirements of
subsection (k).
``(2) Performance assessment.--
``(A) In general.--The Administrator of FEMA shall develop
and implement a performance assessment system, including
quantifiable performance metrics, to evaluate the extent to
which grants awarded under this section are furthering the
purposes of this section, including protecting the health and
safety of the public and firefighting personnel against fire
and fire-related hazards.
``(B) Consultation.--The Administrator of FEMA shall
consult with fire service representatives and with the
Comptroller General of the United States in developing the
assessment system required by subparagraph (A).
``(3) Annual reports to administrator of fema.--Not less
frequently than once each year during the term of a grant
awarded under this section, the recipient of the grant shall
submit to the Administrator of FEMA an annual report
describing how the recipient used the grant amounts.
``(4) Annual reports to congress.--
``(A) In general.--Not later than September 30, 2013, and
each year thereafter through 2017, the Administrator of FEMA
shall submit to the Committee on Homeland Security and
Governmental Affairs of the Senate and the Committee on
Science and Technology of the House of Representatives a
report that provides--
``(i) information on the performance assessment system
developed under paragraph (2); and
``(ii) using the performance metrics developed under such
paragraph, an evaluation of the effectiveness of the grants
awarded under this section.
``(B) Additional information.--The report due under
subparagraph (A) on September 30, 2016, shall also include
recommendations for legislative changes to improve grants
under this section.
``(q) Authorization of Appropriations.--
``(1) In general.--There is authorized to be appropriated
to carry out this section--
``(A) $750,000,000 for fiscal year 2013; and
``(B) for each of fiscal years 2014 through 2017, an amount
equal to the amount authorized for the previous fiscal year
increased by the percentage by which--
``(i) the Consumer Price Index (all items, United States
city average) for the previous fiscal year, exceeds
``(ii) the Consumer Price Index for the fiscal year
preceding the fiscal year described in clause (i).
``(2) Administrative expenses.--Of the amounts appropriated
pursuant to paragraph (1) for a fiscal year, the
Administrator of FEMA may use not more than 5 percent of such
amounts for salaries and expenses and other administrative
costs incurred by the Administrator of FEMA in the course of
awarding grants and providing assistance under this section.
``(3) Congressionally directed spending.--Consistent with
the requirements in subsections (c)(1) and (d)(1) that grants
under those subsections be awarded on a competitive basis,
none of the funds appropriated pursuant to this subsection
may be used for any congressionally directed spending item
(as defined under the rules of the Senate and the House of
Representatives).
``(r) Sunset of Authorities.--The authority to award
assistance and grants under this section shall expire on the
date that is 5 years after the date of the enactment of the
Fire Grants Reauthorization Act of 2012.''.

SEC. 1804. STAFFING FOR ADEQUATE FIRE AND EMERGENCY RESPONSE.

(a) Improvements to Hiring Grants.--
(1) Term of grants.--Subparagraph (B) of section 34(a)(1)
of the Federal Fire Prevention and Control Act of 1974 (15
U.S.C. 2229a(a)(1)) is amended to read as follows:
``(B) Grants made under this paragraph shall be for 3 years
and be used for programs to hire new, additional
firefighters.''.
(2) Limitation of portion of costs of hiring
firefighters.--Subparagraph (E) of such section is amended to
read as follows:
``(E) The portion of the costs of hiring firefighters
provided by a grant under this paragraph may not exceed--
``(i) 75 percent in the first year of the grant;
``(ii) 75 percent in the second year of the grant; and
``(iii) 35 percent in the third year of the grant.''.
(b) Clarification Regarding Eligible Entities for
Recruitment and Retention Grants.--The second sentence of
section 34(a)(2) of such Act (15 U.S.C. 2229a(a)(2)) is
amended by striking ``organizations on a local or statewide
basis'' and inserting ``national, State, local, or tribal
organizations''.
(c) Maximum Amount for Hiring a Firefighter.--Paragraph (4)
of section 34(c) of such Act (15 U.S.C. 2229a(c)) is amended
to read as follows:
``(4) The amount of funding provided under this section to
a recipient fire department for hiring a firefighter in any
fiscal year may not exceed--
``(A) in the first year of the grant, 75 percent of the
usual annual cost of a first-year firefighter in that
department at the time the grant application was submitted;
``(B) in the second year of the grant, 75 percent of the
usual annual cost of a first-year firefighter in that
department at the time the grant application was submitted;
and
``(C) in the third year of the grant, 35 percent of the
usual annual cost of a first-year firefighter in that
department at the time the grant application was
submitted.''.
(d) Waivers.--Section 34 of such Act (15 U.S.C. 2229a) is
amended--
(1) by redesignating subsections (d) through (i) as
subsections (e) through (j), respectively; and
(2) by inserting after subsection (c) the following:
``(d) Waivers.--
``(1) In general.--In a case of demonstrated economic
hardship, the Administrator of FEMA may--
``(A) waive the requirements of subsection (c)(1); or
``(B) waive or reduce the requirements in subsection
(a)(1)(E) or subsection (c)(2).
``(2) Guidelines.--
``(A) In general.--The Administrator of FEMA shall
establish and publish guidelines for determining what
constitutes economic hardship for purposes of paragraph (1).
``(B) Consultation.--In developing guidelines under
subparagraph (A), the Administrator of FEMA shall consult
with individuals who are--
``(i) recognized for expertise in firefighting, emergency
medical services provided by fire services, or the economic
affairs of State and local governments; and
``(ii) members of national fire service organizations or
national organizations representing the interests of State
and local governments.
``(C) Considerations.--In developing guidelines under
subparagraph (A), the Administrator of FEMA shall consider,
with respect to relevant communities, the following:
``(i) Changes in rates of unemployment from previous years.

[[Page S7173]]

``(ii) Whether the rates of unemployment of the relevant
communities are currently and have consistently exceeded the
annual national average rates of unemployment.
``(iii) Changes in percentages of individuals eligible to
receive food stamps from previous years.
``(iv) Such other factors as the Administrator of FEMA
considers appropriate.''.
(e) Improvements to Performance Evaluation Requirements.--
Subsection (e) of section 34 of such Act (15 U.S.C. 2229a),
as redesignated by subsection (d)(1) of this section, is
amended by inserting before the first sentence the following:
``(1) In general.--The Administrator of FEMA shall
establish a performance assessment system, including
quantifiable performance metrics, to evaluate the extent to
which grants awarded under this section are furthering the
purposes of this section.
``(2) Submittal of information.--''.
(f) Report.--
(1) In general.--Subsection (f) of section 34 of such Act
(15 U.S.C. 2229a), as redesignated by subsection (d)(1) of
this section, is amended by striking ``The authority'' and
all that follows through ``Congress concerning'' and
inserting the following: ``Not later than September 30, 2014,
the Administrator of FEMA shall submit to the Committee on
Homeland Security and Governmental Affairs of the Senate and
the Committee on Science and Technology of the House of
Representatives a report on''.
(2) Conforming amendment.--The heading for subsection (f)
of section 34 of such Act (15 U.S.C. 2229a), as redesignated
by subsection (d)(1) of this section, is amended by striking
``Sunset and Reports'' and inserting ``Report''.
(g) Additional Definitions.--
(1) In general.--Subsection (i) of section 34 of such Act
(15 U.S.C. 2229a), as redesignated by subsection (d)(1) of
this section, is amended--
(A) in the matter before paragraph (1), by striking ``In
this section, the term--'' and inserting ``In this
section:'';
(B) in paragraph (1)--
(i) by inserting ``The term'' before `` `firefighter'
has''; and
(ii) by striking ``; and'' and inserting a period;
(C) by striking paragraph (2); and
(D) by inserting at the end the following:
``(2) The terms `Administrator of FEMA', `career fire
department', `combination fire department', and `volunteer
fire department' have the meanings given such terms in
section 33(a).''.
(2) Conforming amendment.--Section 34(a)(1)(A) of such Act
(15 U.S.C. 2229a(a)(1)(A)) is amended by striking ``career,
volunteer, and combination fire departments'' and inserting
``career fire departments, combination fire departments, and
volunteer fire departments''.
(h) Authorization of Appropriations.--
(1) In general.--Subsection (j) of section 34 of such Act
(15 U.S.C. 2229a), as redesignated by subsection (d)(1) of
this section, is amended--
(A) in paragraph (6), by striking ``and'' at the end;
(B) in paragraph (7), by striking the period at the end and
inserting ``; and''; and
(C) by adding at the end the following:
``(8) $750,000,000 for fiscal year 2013; and
``(9) for each of fiscal years 2014 through 2017, an amount
equal to the amount authorized for the previous fiscal year
increased by the percentage by which--
``(A) the Consumer Price Index (all items, United States
city average) for the previous fiscal year, exceeds
``(B) the Consumer Price Index for the fiscal year
preceding the fiscal year described in subparagraph (A).''.
(2) Administrative expenses.--Such subsection (j) is
further amended--
(A) in paragraph (9), as added by paragraph (1) of this
subsection, by redesignating subparagraphs (A) and (B) as
clauses (i) and (ii), respectively, and moving the left
margin of such clauses, as so redesignated, 2 ems to the
right;
(B) by redesignating paragraphs (1) through (9) as
subparagraphs (A) through (I), respectively, and moving the
left margin of such subparagraphs, as so redesignated, 2 ems
to the right;
(C) by striking ``There are'' and inserting the following:
``(1) In general.--There are''; and
(D) by adding at the end the following:
``(2) Administrative expenses.--Of the amounts appropriated
pursuant to paragraph (1) for a fiscal year, the
Administrator of FEMA may use not more than 5 percent of such
amounts to cover salaries and expenses and other
administrative costs incurred by the Administrator of FEMA to
make grants and provide assistance under this section.''.
(3) Congressionally directed spending.--Such subsection (j)
is further amended by adding at the end the following:
``(3) Congressionally directed spending.--Consistent with
the requirement in subsection (a) that grants under this
section be awarded on a competitive basis, none of the funds
appropriated pursuant to this subsection may be used for any
congressionally direct spending item (as defined under the
rules of the Senate and the House of Representatives).''.
(i) Technical Amendment.--Section 34 of such Act (15 U.S.C.
2229a) is amended by striking ``Administrator'' each place it
appears and inserting ``Administrator of FEMA''.
(j) Clerical Amendment.--Such section is further amended in
the heading by striking ``EXPANSION OF PRE-SEPTEMBER 11,
2001, FIRE GRANT PROGRAM'' and inserting the following:
``STAFFING FOR ADEQUATE FIRE AND EMERGENCY RESPONSE''.
(k) Sunset of Authority to Award Hiring Grants.--Such
section is further amended by adding at the end the
following:
``(k) Sunset of Authorities.--The authority to award
assistance and grants under this section shall expire on the
date that is 5 years after the date of the enactment of the
Fire Grants Reauthorization Act of 2012.''.

SEC. 1805. SENSE OF CONGRESS ON VALUE AND FUNDING OF
ASSISTANCE TO FIREFIGHTERS AND STAFFING FOR
ADEQUATE FIRE AND EMERGENCY RESPONSE PROGRAMS.

It is the sense of Congress that--
(1) the grants and assistance awarded under sections 33 and
34 of the Federal Fire Prevention and Control Act of 1974 (15
U.S.C. 2229 and 2229a) have proven equally valuable in
protecting the health and safety of the public and
firefighting personnel throughout the United States against
fire and fire-related hazards; and
(2) providing parity in funding for the awarding of grants
and assistance under both such sections will ensure that the
grant and assistance programs under such sections can
continue to serve their complementary purposes.

SEC. 1806. REPORT ON AMENDMENTS TO ASSISTANCE TO FIREFIGHTERS
AND STAFFING FOR ADEQUATE FIRE AND EMERGENCY
RESPONSE PROGRAMS.

(a) In General.--Not later than September 30, 2016, the
Comptroller General of the United States shall submit to the
Committee on Homeland Security and Governmental Affairs of
the Senate and the Committee on Science and Technology of the
House of Representatives a report on the effect of the
amendments made by this title.
(b) Contents.--The report required by subsection (a) shall
include the following:
(1) An assessment of the effect of the amendments made by
sections 1803 and 1804 on the effectiveness, relative
allocation, accountability, and administration of the grants
and assistance awarded under sections 33 and 34 of the
Federal Fire Prevention and Control Act of 1974 (15 U.S.C.
2229 and 2229a) after the date of the enactment of this Act.
(2) An evaluation of the extent to which the amendments
made by sections 1803 and 1804 have enabled recipients of
grants and assistance awarded under such sections 33 and 34
after the date of the enactment of this Act to mitigate fire
and fire-related and other hazards more effectively.

SEC. 1807. STUDIES AND REPORTS ON THE STATE OF FIRE SERVICES.

(a) Definitions.--In this section:
(1) Administrator.--The term ``Administrator'' means the
Administrator of the United States Fire Administration.
(2) Career fire department, combination fire department,
volunteer fire department.--The terms ``career fire
department'', ``combination fire department'', and
``volunteer fire department'' have the meanings given such
terms in section 33(a) of the Federal Fire Prevention and
Control Act of 1974 (15 U.S.C. 2229(a)), as amended by
section 1803.
(3) Fire service.--The term ``fire service'' has the
meaning given such term in section 4 of the Federal Fire
Prevention and Control Act of 1974 (15 U.S.C. 2203).
(b) Study and Report on Compliance With Staffing
Standards.--
(1) Study.--The Administrator shall conduct a study on the
level of compliance with national voluntary consensus
standards for staffing, training, safe operations, personal
protective equipment, and fitness among the fire services of
the United States.
(2) Survey.--
(A) In general.--In carrying out the study required by
paragraph (1), the Administrator shall carry out a survey of
fire services to assess the level of compliance of such fire
services with the standards described in such paragraph.
(B) Elements.--The survey required by subparagraph (A)
shall--
(i) include career fire departments, volunteer fire
departments, combination fire departments, and fire
departments serving communities of different sizes, and such
other distinguishing factors as the Administrator considers
relevant;
(ii) employ methods to ensure that the survey accurately
reflects the actual rate of compliance with the standards
described in paragraph (1) among fire services; and
(iii) determine the extent of barriers and challenges to
achieving compliance with the standards described in
paragraph (1) among fire services.
(C) Authority to carry out survey with nonprofit.--If the
Administrator determines that it will reduce the costs
incurred by the United States Fire Administration in carrying
out the survey required by subparagraph (A), the
Administrator may carry out such survey in conjunction with a
nonprofit organization that has substantial expertise and
experience in the following areas:
(i) The fire services.
(ii) National voluntary consensus standards.
(iii) Contemporary survey methods.
(3) Report on findings of study.--
(A) In general.--Not later than 2 years after the date of
the enactment of this Act, the Administrator shall submit to
Congress

[[Page S7174]]

a report on the findings of the Administrator with respect to
the study required by paragraph (1).
(B) Contents.--The report required by subparagraph (A)
shall include the following:
(i) An accurate description, based on the results of the
survey required by paragraph (2)(A), of the rate of
compliance with the standards described in paragraph (1)
among United States fire services, including a comparison of
the rates of compliance among career fire departments,
volunteer fire departments, combination fire departments, and
fire departments serving communities of different sizes, and
such other comparisons as Administrator considers relevant.
(ii) A description of the challenges faced by different
types of fire departments and different types of communities
in complying with the standards described in paragraph (1).
(c) Task Force to Enhance Firefighter Safety.--
(1) Establishment.--Not later than 60 days after the date
of the enactment of this Act, the Secretary of Homeland
Security shall establish a task force to be known as the
``Task Force to Enhance Firefighter Safety'' (in this
subsection referred to as the ``Task Force'').
(2) Membership.--
(A) In general.--Members of the Task Force shall be
appointed by the Secretary from among the general public and
shall include the following:
(i) Representatives of national organizations representing
firefighters and fire chiefs.
(ii) Individuals representing standards-setting and
accrediting organizations, including representatives from the
voluntary consensus codes and standards development
community.
(iii) Such other individuals as the Secretary considers
appropriate.
(B) Representatives of other departments and agencies.--The
Secretary may invite representatives of other Federal
departments and agencies that have an interest in fire
services to participate in the meetings and other activities
of the Task Force.
(C) Number; terms of service; pay and allowances.--The
Secretary shall determine the number, terms of service, and
pay and allowances of members of the Task Force appointed by
the Secretary, except that a term of service of any such
member may not exceed 2 years.
(3) Responsibilities.--The Task Force shall--
(A) consult with the Secretary in the conduct of the study
required by subsection (b)(1); and
(B) develop a plan to enhance firefighter safety by
increasing fire service compliance with the standards
described in subsection (b)(1), including by--
(i) reviewing and evaluating the report required by
subsection (b)(3)(A) to determine the extent of and barriers
to achieving compliance with the standards described in
subsection (b)(1) among fire services; and
(ii) considering ways in which the Federal Government,
States, and local governments can promote or encourage fire
services to comply with such standards.
(4) Report.--
(A) In general.--Not later than 180 days after the date on
which the Secretary submits the report required by subsection
(b)(3)(A), the Task Force shall submit to Congress and the
Secretary a report on the activities and findings of the Task
Force.
(B) Contents.--The report required by subparagraph (A)
shall include the following:
(i) The findings and recommendations of the Task Force with
respect to the study carried out under subsection (b)(1).
(ii) The plan developed under paragraph (3)(B).
(d) Study and Report on the Needs of Fire Services.--
(1) Study.--The Administrator shall conduct a study--
(A) to define the current roles and activities associated
with fire services on a national, State, regional, and local
level;
(B) to identify the equipment, staffing, and training
required to fulfill the roles and activities defined under
subparagraph (A);
(C) to conduct an assessment to identify gaps between what
fire services currently possess and what they require to meet
the equipment, staffing, and training needs identified under
subparagraph (B) on a national and State-by-State basis; and
(D) to measure the impact of the grant and assistance
program under section 33 of the Federal Fire Prevention and
Control Act of 1974 (15 U.S.C. 2229) in meeting the needs of
fire services and filling the gaps identified under
subparagraph (C).
(2) Report.--Not later than 2 years after the date of the
enactment of this title, the Administrator shall submit to
Congress a report on the findings of the Administrator with
respect to the study conducted under paragraph (1).
(e) Authorization of Appropriations.--There are authorized
to be appropriated to the Administrator to carry out this
section--
(1) $600,000 for fiscal year 2013; and
(2) $600,000 for fiscal year 2014.

Subtitle B--Reauthorization of United States Fire Administration

SEC. 1811. SHORT TITLE.

This subtitle may be cited as the ``United States Fire
Administration Reauthorization Act of 2012''.

SEC. 1812. CLARIFICATION OF RELATIONSHIP BETWEEN UNITED
STATES FIRE ADMINISTRATION AND FEDERAL
EMERGENCY MANAGEMENT AGENCY.

Section 5(c) of the Federal Fire Prevention and Control Act
of 1974 (15 U.S.C. 2204) is amended to read as follows:
``(c) Deputy Administrator.--The Administrator may appoint
a Deputy Administrator, who shall--
``(1) perform such functions as the Administrator shall
from time to time assign or delegate; and
``(2) act as Administrator during the absence or disability
of the Administrator or in the event of a vacancy in the
office of Administrator.''.

SEC. 1813. MODIFICATION OF AUTHORITY OF ADMINISTRATOR TO
EDUCATE PUBLIC ABOUT FIRE AND FIRE PREVENTION.

Section 6 of the Federal Fire Prevention and Control Act of
1974 (15 U.S.C. 2205) is amended by striking ``to take all
steps'' and all that follows through ``fire and fire
prevention.'' and inserting ``to take such steps as the
Administrator considers appropriate to educate the public and
overcome public indifference as to fire, fire prevention, and
individual preparedness.''.

SEC. 1814. AUTHORIZATION OF APPROPRIATIONS.

Section 17(g)(1) of the Federal Fire Prevention and Control
Act of 1974 (15 U.S.C. 2216(g)(1)) is amended--
(1) in subparagraph (G), by striking ``and'' at the end;
(2) in subparagraph (H), by striking the period at the end
and inserting a semicolon;
(3) by adding after subparagraph (H) the following:
``(I) $76,490,890 for fiscal year 2013, of which $2,753,672
shall be used to carry out section 8(f);
``(J) $76,490,890 for fiscal year 2014, of which $2,753,672
shall be used to carry out section 8(f);
``(K) $76,490,890 for fiscal year 2015, of which $2,753,672
shall be used to carry out section 8(f);
``(L) $76,490,890 for fiscal year 2016, of which $2,753,672
shall be used to carry out section 8(f); and
``(M) $76,490,890 for fiscal year 2017, of which $2,753,672
shall be used to carry out section 8(f).''; and
(4) in subparagraphs (E) through (H), by moving each margin
2 ems to the left.

SEC. 1815. REMOVAL OF LIMITATION.

Section 9(d) of the Federal Fire Prevention and Control Act
of 1974 (15 U.S.C. 2208(d)) is amended--
(1) by striking ``Update.--'' and all that follows through
``The Administrator'' and inserting ``Update.--The
Administrator''; and
(2) by striking paragraph (2).

The ACTING PRESIDENT pro tempore. The Senator from Arizona.
Mr. McCAIN. Mr. President, I remind my colleagues we have been on the
bill now for 2 days, so it might be time to stop filing amendments. I
don't think that is an outrageous request on the part of the managers
of the bill. I hope we can have those objections or concerns removed so
we can at least bring the filing of amendments to a close.
I would ask the distinguished chairman, are we going to move with the
managers' package now?
Mr. LEVIN. We could. Let us report this amendment first and then why
don't we do that. It will just take us a couple minutes.
The ACTING PRESIDENT pro tempore. Under the previous order, amendment
No. 3090, as modified, is agreed to.
Mr. LEVIN. Mr. President, I move to reconsider the vote.
Mr. McCAIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendments Nos. 2929, 2942, 3230, 2966, 2973, 2980, 2994, 3059, 3072,
3086, 3098, 3186

Mr. LEVIN. Mr. President, I call up a list of 12 amendments which
have been cleared by myself and Senator McCain:
McCaskill amendment No. 2929, McCaskill amendment No. 2942, Boxer
amendment No. 3230, Hatch amendment No. 2966, Inhofe amendment No.
2973, Boxer amendment No. 2980, Casey amendment No. 2994, Toomey
amendment No. 3059, Inhofe amendment No. 3072, Vitter amendment No.
3086, Shaheen amendment No. 3098, Coburn amendment No. 3186.
I understand from Senator McCain that these amendments have been
cleared on his side.
Mr. McCAIN. Those amendments are cleared.
Mr. LEVIN. Mr. President, I now ask unanimous consent that the Senate
consider these amendments en bloc, the amendments be agreed to, and the
motion to reconsider be laid upon the table.
The ACTING PRESIDENT pro tempore. Is there objection?
Without objection, it is so ordered.
The amendments were agreed to, as follows:

[[Page S7175]]

Amendment No. 2929

(The amendment is printed in the Record of Monday, November 26, 2012,
under ``Text of amendments.'')

amendment no. 2942

(Purpose: To expand whistleblower protections to non-Defense contractor
and grantee employees)

On page 248, between lines 19 and 20, insert the following:

SEC. 844A. WHISTLEBLOWER PROTECTIONS FOR NON-DEFENSE
CONTRACTORS.

(a) Whistleblower Protections.--
(1) In general.--Chapter 47 of title 41, United States
Code, is amended by adding at the end the following new
section:

``SEC. 4712. CONTRACTOR AND GRANTEE EMPLOYEES: PROTECTION
FROM REPRISAL FOR DISCLOSURE OF CERTAIN
INFORMATION.

``(a) Prohibition of Reprisals.--
``(1) In general.--An employee of a contractor,
subcontractor, or grantee may not be discharged, demoted, or
otherwise discriminated against as a reprisal for disclosing
to a person or body described in paragraph (2) information
that the employee reasonably believes is evidence of gross
mismanagement of a Federal contract or grant, a gross waste
of Federal funds, an abuse of authority relating to a Federal
contract or grant, a substantial and specific danger to
public health or safety, or a violation of law, rule, or
regulation related to a Federal contract (including the
competition for or negotiation of a contract) or grant.
``(2) Persons and bodies covered.--The persons and bodies
described in this paragraph are the persons and bodies as
follows:
``(A) A Member of Congress or a representative of a
committee of Congress.
``(B) An Inspector General.
``(C) The Government Accountability Office.
``(D) A Federal employee responsible for contract or grant
oversight or management at the relevant agency.
``(E) An authorized official of the Department of Justice
or other law enforcement agency.
``(F) A court or grand jury.
``(G) A management official or other employee of the
contractor, subcontractor, or grantee who has the
responsibility to investigate, discover, or address
misconduct.
``(3) Rules of construction.--For the purposes of paragraph
(1)--
``(A) an employee who initiates or provides evidence of
contractor, subcontractor, or grantee misconduct in any
judicial or administrative proceeding relating to waste,
fraud, or abuse on a Federal contract or grant shall be
deemed to have made a disclosure covered by such paragraph;
and
``(B) a reprisal described in paragraph (1) is prohibited
even if it is undertaken at the request of an executive
branch official, unless the request takes the form of a non-
discretionary directive and is within the authority of the
executive branch official making the request.
``(b) Investigation of Complaints.--
``(1) Submission of complaint.--A person who believes that
the person has been subjected to a reprisal prohibited by
subsection (a) may submit a complaint to the Inspector
General of the executive agency involved. Unless the
Inspector General determines that the complaint is frivolous,
fails to allege a violation of the prohibition in subsection
(a), or has previously been addressed in another Federal or
State judicial or administrative proceeding initiated by the
complainant, the Inspector General shall investigate the
complaint and, upon completion of such investigation, submit
a report of the findings of the investigation to the person,
the contractor or grantee concerned, and the head of the
agency.
``(2) Inspector general action.--
``(A) Determination or submission of report on findings.--
Except as provided under subparagraph (B), the Inspector
General shall make a determination that a complaint is
frivolous, fails to allege a violation of the prohibition in
subsection (a), or has previously been addressed in another
Federal or State judicial or administrative proceeding
initiated by the complainant or submit a report under
paragraph (1) within 180 days after receiving the complaint.
``(B) Extension of time.--If the Inspector General is
unable to complete an investigation in time to submit a
report within the 180-day period specified in subparagraph
(A) and the person submitting the complaint agrees to an
extension of time, the Inspector General shall submit a
report under paragraph (1) within such additional period of
time, up to 180 days, as shall be agreed upon between the
Inspector General and the person submitting the complaint.
``(3) Prohibition on disclosure.--The Inspector General may
not respond to any inquiry or disclose any information from
or about any person alleging the reprisal, except to the
extent that such response or disclosure is--
``(A) made with the consent of the person alleging the
reprisal;
``(B) made in accordance with the provisions of section
552a of title 5 or as required by any other applicable
Federal law; or
``(C) necessary to conduct an investigation of the alleged
reprisal.
``(4) Time limitation.--A complaint may not be brought
under this subsection more than three years after the date on
which the alleged reprisal took place.
``(c) Remedy and Enforcement Authority.--
``(1) In general.--Not later than 30 days after receiving
an Inspector General report pursuant to subsection (b), the
head of the executive agency concerned shall determine
whether there is sufficient basis to conclude that the
contractor or grantee concerned has subjected the complainant
to a reprisal prohibited by subsection (a) and shall either
issue an order denying relief or shall take one or more of
the following actions:
``(A) Order the contractor or grantee to take affirmative
action to abate the reprisal.
``(B) Order the contractor or grantee to reinstate the
person to the position that the person held before the
reprisal, together with compensatory damages (including back
pay), employment benefits, and other terms and conditions of
employment that would apply to the person in that position if
the reprisal had not been taken.
``(C) Order the contractor or grantee to pay the
complainant an amount equal to the aggregate amount of all
costs and expenses (including attorneys' fees and expert
witnesses' fees) that were reasonably incurred by the
complainant for, or in connection with, bringing the
complaint regarding the reprisal, as determined by the head
of the executive agency.
``(2) Exhaustion of remedies.--If the head of an executive
agency issues an order denying relief under paragraph (1) or
has not issued an order within 210 days after the submission
of a complaint under subsection (b), or in the case of an
extension of time under paragraph (b)(2)(B), not later than
30 days after the expiration of the extension of time, and
there is no showing that such delay is due to the bad faith
of the complainant, the complainant shall be deemed to have
exhausted all administrative remedies with respect to the
complaint, and the complainant may bring a de novo action at
law or equity against the contractor or grantee to seek
compensatory damages and other relief available under this
section in the appropriate district court of the United
States, which shall have jurisdiction over such an action
without regard to the amount in controversy. Such an action
shall, at the request of either party to the action, be tried
by the court with a jury. An action under this paragraph may
not be brought more than two years after the date on which
remedies are deemed to have been exhausted.
``(3) Admissibility of evidence.--An Inspector General
determination and an agency head order denying relief under
paragraph (2) shall be admissible in evidence in any de novo
action at law or equity brought pursuant to this subsection.
``(4) Enforcement of orders.--Whenever a person fails to
comply with an order issued under paragraph (1), the head of
the executive agency concerned shall file an action for
enforcement of such order in the United States district court
for a district in which the reprisal was found to have
occurred. In any action brought under this paragraph, the
court may grant appropriate relief, including injunctive
relief, compensatory and exemplary damages, and attorney fees
and costs. The person upon whose behalf an order was issued
may also file such an action or join in an action filed by
the head of the executive agency.
``(5) Judicial review.--Any person adversely affected or
aggrieved by an order issued under paragraph (1) may obtain
review of the order's conformance with this subsection, and
any regulations issued to carry out this section, in the
United States court of appeals for a circuit in which the
reprisal is alleged in the order to have occurred. No
petition seeking such review may be filed more than 60 days
after issuance of the order by the head of the executive
agency. Review shall conform to chapter 7 of title 5. Filing
such an appeal shall not act to stay the enforcement of the
order of the head of an executive agency, unless a stay is
specifically entered by the court.
``(6) Burdens of proof.--The legal burdens of proof
specified in section 1221(e) of title 5 shall be controlling
for the purposes of any investigation conducted by an
Inspector General, decision by the head of an executive
agency, or judicial or administrative proceeding to determine
whether discrimination prohibited under this section has
occurred.
``(7) Rights and remedies not waivable.--The rights and
remedies provided for in this section may not be waived by
any agreement, policy, form, or condition of employment,
including by any predispute arbitration agreement, other than
an arbitration provision in a collective bargaining
agreement.
``(d) Notification of Employees.--The head of each
executive agency shall ensure that contractors,
subcontractors, and grantees of the agency inform their
employees in writing of the rights and remedies provided
under this section, in the predominant native language of the
workforce.
``(e) Construction.--Nothing in this section may be
construed to authorize the discharge of, demotion of, or
discrimination against an employee for a disclosure other
than a disclosure protected by subsection (a) or to modify or
derogate from a right or remedy otherwise available to the
employee.
``(f) Definitions.--In this section:
``(1) The term `abuse of authority' means an arbitrary and
capricious exercise of authority that is inconsistent with
the mission of the executive agency concerned or the
successful performance of a contract or grant of such agency.

[[Page S7176]]

``(2) The term `Inspector General' means an Inspector
General appointed under the Inspector General Act of 1978 and
any Inspector General that receives funding from, or has
oversight over contracts or grants awarded for or on behalf
of, the executive agency concerned.''.
(2) Clerical amendment.--The table of sections at the
beginning of such chapter is amended by adding at the end the
following new item:

``4712. Contractor and grantee employees: protection from reprisal for
disclosure of certain information.''.

(b) Allowability of Legal Fees.--Section 4310 of title 41,
United States Code, is amended--
(1) in subsection (b), by striking ``commenced by the
Federal Government or a State'' and inserting ``commenced by
the Federal Government, by a State, or by a contractor or
grantee employee submitting a complaint under section 4712 of
this title''; and
(2) in subsection (c)(3), by striking ``the imposition of a
monetary penalty'' and inserting ``the imposition of a
monetary penalty or an order to take corrective action under
section 4712 of this title''.
(c) Effective Date.--
(1) In general.--The amendments made by this section shall
take effect on the date that is 180 days after the date of
the enactment of this Act, and shall apply to--
(A) all contracts and grants awarded on or after such date;
(B) all task orders entered on or after such date pursuant
to contracts awarded before, on, or after such date; and
(C) all contracts awarded before such date that are
modified to include a contract clause providing for the
applicability of such amendments.
(2) Revision of federal acquisition regulation.--Not later
than 180 days after the date of the enactment of this Act,
the Federal Acquisition Regulation shall be revised to
implement the requirements arising under the amendments made
by this section.
(3) Inclusion of contract clause in contracts awarded
before effective date.--At the time of any major modification
to a contract that was awarded before the date that is 180
days after the date of the enactment of this Act, the head of
the contracting agency shall make best efforts to include in
the contract a contract clause providing for the
applicability of the amendments made by this section to the
contract.

amendment no. 3230

(Purpose: To reauthorize and modify the responsibilities of the United
States Advisory Commission on Public Diplomacy through fiscal year
2014)

At the appropriate place, insert the following:

SEC. ___. UNITED STATES ADVISORY COMMISSION ON PUBLIC
DIPLOMACY.

(a) Technical Amendment.--Section 604(a) of the United
States Information and Educational Exchange Act of 1948 (22
U.S.C. 1469(a)) is amended by inserting ``(referred to in
this section as the `Commission')'' before the period at the
end.
(b) Duties and Responsibilities.--Section 604(c) of such
Act is amended to read as follows:
``(c) Duties and Responsibilities.--The Commission shall
appraise United States Government activities intended to
understand, inform, and influence foreign publics. The
activities described in this subsection shall be referred to
in this section as `public diplomacy activities'.''.
(c) Reports.--Section 604(d) of such Act is amended to read
as follows:
``(d) Reports.--
``(1) Comprehensive annual report.--
``(A) In general.--Not less frequently than annually, the
Commission shall submit a comprehensive report on public
diplomacy and international broadcasting activities to
Congress, the President, and the Secretary of State. This
report shall include--
``(i) a detailed list of all public diplomacy activities
funded by the United States Government;
``(ii) a description of--

``(I) the purpose, means, and geographic scope of each
activity;
``(II) when each activity was started;
``(III) the amount of Federal funding expended on each
activity;
``(IV) any significant outside sources of funding; and
``(V) the Federal department or agency to which the
activity belongs;

``(iii) the international broadcasting activities under the
direction of the Broadcasting Board of Governors;
``(iv) an assessment of potentially duplicative public
diplomacy and international broadcasting activities; and
``(v) for any activities determined to be ineffective or
results not demonstrated under subparagraph (B),
recommendations on existing effective or moderately effective
public diplomacy activities that could be augmented to carry
out the objectives of the ineffective activities.
``(B) Effectiveness assessment.--In evaluating the public
diplomacy and international broadcasting activities described
in subparagraph (A), the Commission shall conduct an
assessment that considers the public diplomacy target impact,
the achieved impact, and the cost of public diplomacy
activities and international broadcasting. The assessment
shall include, if practicable, an appropriate metric such as
`cost-per-audience' or `cost-per-student' for each activity.
Upon the completion of the assessment, the Commission shall
the assign a rating of--
``(i) `effective' for activities that--

``(I) set appropriate goals;
``(II) achieve results; and
``(III) are well-managed and cost efficient;

``(ii) `moderately effective' for activities that--

``(I) achieve some results;
``(II) are generally well-managed; and
``(III) need to improve their performance results or cost
efficiency, including reducing overhead;

``(iii) `ineffective' for activities that--

``(I) are not making sufficient use of available resources
to achieve stated goals;
``(II) are not well-managed; or
``(III) have excessive overhead; and

``(iv) `results not demonstrated' for activities that--

``(I) do not have acceptable performance public diplomacy
metrics for measuring results; or
``(II) are unable or failed to collect data to determine if
they are effective.

``(2) Other reports.--
``(A) In general.--The Commission shall submit other
reports, including working papers, to Congress, the
President, and the Secretary of State at least semi-annually
on other activities and policies related to United States
public diplomacy.
``(B) Availability.--The Commission shall make the reports
submitted pursuant to subparagraph (A) publicly available on
the Website of the Commission to develop a better
understanding of, and support for, public diplomacy
activities.
``(3) Access to information.--The Secretary of State shall
ensure that the Commission has access to all appropriate
information to carry out its duties and responsibilities
under this subsection.''.
(d) Reauthorization.--
(1) In general.--Section 1334 of the Foreign Affairs Reform
and Restructuring Act of 1998 (22 U.S.C. 6553) is amended by
striking ``October 1, 2010'' and inserting ``October 1,
2014''.
(2) Retroactivity of effective date.--The amendment made by
paragraph (1) shall take effect on October 1, 2010.
(e) Funding.--From amounts appropriated by Congress under
the heading ``Diplomatic and consular programs'', the
Secretary of State shall allocate sufficient funding to the
United States Advisory Commission on Public Diplomacy to
carry out section 604 of the United States Information and
Educational Exchange Act of 1948 (22 U.S.C. 1469), as amended
by this section.

amendment no. 2966

(Purpose: To reauthorize and expand the multi-trades demonstration
project)

At the end of subtitle C of title III, add the following:

SEC. 322. EXPANSION AND REAUTHORIZATION OF MULTI-TRADES
DEMONSTRATION PROJECT.

(a) Expansion.--Section 338 of the National Defense
Authorization Act for Fiscal Year 2004 (10 U.S.C. 5013 note)
is amended--
(1) by striking subsection (a) and inserting the following
new subsection:
``(a) Demonstration Project Authorized.--In accordance with
section 4703 of title 5, United States Code, the Secretary of
a military department may carry out a demonstration project
at facilities described in subsection (b) under which workers
who are certified at the journey level as able to perform
multiple trades shall be promoted by one grade level.''; and
(2) in subsection (b), by striking ``Logistics Center, Navy
Fleet Readiness Center,'' and inserting ``Logistics Complex,
Navy Fleet Readiness Center, Navy shipyard, Marine Corps
Logistics Base,''.
(b) Reauthorization.--Such section is further amended--
(1) in subsection (d), by striking ``2013'' and inserting
``2018''; and
(2) in subsection (e), by striking ``2014'' and inserting
``2019''.

amendment no. 2973

(Purpose: To express the sense of the Senate on training of mental
health counselors for members of the Armed Forces, veterans, and their
families)

At the end of subtitle D of title VII, add the following:

SEC. 735. SENSE OF SENATE ON MENTAL HEALTH COUNSELORS FOR
MEMBERS OF THE ARMED FORCES, VETERANS, AND
THEIR FAMILIES.

It is the sense of the Senate that--
(1) the Secretary of Defense and the Secretary of Veterans
Affairs should develop a plan to ensure a sustainable flow of
qualified counselors to meet the long-term needs of members
of the Armed Forces, veterans, and their families for
counselors; and
(2) the plan should include the participation of accredited
schools and universities, health care providers, professional
counselors, family service or support centers, chaplains, and
other appropriate resources of the Department of Defense and
the Department of Veterans Affairs.

amendment no. 2980

(Purpose: To require an Inspector General of the Department of Defense
report on allowable costs of compensation of employees of Department of
Defense contractors)

On page 238. between lines 15 and 16, insert the following:
(c) Report on Allowable Costs of Employee Compensation.--
Not later than 120 days after the date of the enactment of
this

[[Page S7177]]

Act, the Inspector General of the Department of Defense shall
submit to Congress a report on the effect of the modification
of allowable costs of contractor compensation of employees
made by subsection (a). The report shall include the
following:
(1) The total number of contractor employees whose
allowable costs of compensation in fiscal year 2012 exceeded
the amount of allowable costs under the modification made by
subsection (a).
(2) The total number of contractor employees whose
allowable costs of compensation in each of fiscal years 2010,
2011, and 2012 would have exceeded the amount of allowable
costs under section 2324(e)(1)(P) of title 10, United States
Code, as amended by section 803(a) of the National Defense
Authorization Act for Fiscal Year 2012 (Public Law 112-81;
125 Stat. 1485).
(3) The total number of contractor employees whose
allowable costs of compensation in each of fiscal years 2010,
2011, and 2012 exceeded the amount payable to the President
under section 102 of title 3, United States Code.
(4) The total number of contractor employees in fiscal year
2012 that could have been characterized as falling within a
narrowly targeted exception established by the Secretary of
Defense under section 2324(e)(1)(P) of title 10, United
States Code, as a result of the amendment made by section
803(a)(2) of the National Defense Authorization Act for
Fiscal Year 2012.
(5) An assessment whether the compensation amounts provided
in fiscal year 2012 to employees who were characterized by
their employers as falling within a narrowly targeted
exception described in paragraph (4) were provided
compensation amounts in that fiscal year in manner consistent
with private sector practice.
(6) The duties and services performed in fiscal year 2012
by employees who were characterized by their employers as
falling within a narrowly targeted exception described in
paragraph (4).
(7) An assessment whether there are Federal civilian
employees who perform duties and services comparable to the
duties and services described pursuant to paragraph (6).

amendment no. 2994

(Purpose: To require a report on a program on the return of rare earth
phosphors from Department of Defense fluorescent lighting waste to the
domestic rare earth supply chain)

At the end of subtitle F of title X, add the following:

SEC. 1064. REPORT ON PROGRAM ON RETURN OF RARE EARTH
PHOSPHORS FROM DEPARTMENT OF DEFENSE
FLUORESCENT LIGHTING WASTE TO THE DOMESTIC RARE
EARTH SUPPLY CHAIN.

(a) Findings.--Congress makes the following findings:
(1) In its December 2011 report entitled ``Critical
Materials Strategy'', the Department of Energy states that
the heavy rare earth phosphors, dysprosium, europium,
terbium, and yttrium, are particularly important given their
relative scarcity and their importance to clean energy,
energy efficiency, hybrid and electric vehicles, and advanced
defense systems, among other key technologies.
(2) While new sources of production of rare earth elements
show promise, these are focused primarily on the light rare
earth elements.
(b) Sense of Senate.--It is the sense of the Senate that--
(1) the recycling of end-use technologies that use rare
earth elements can provide near-term opportunities to
recapture, reprocess, and reuse some of the rare earth
elements contained in them;
(2) fluorescent lighting materials could prove to be a
promising recyclable source of heavy rare earth elements;
(3) a cost-benefit analysis would be helpful in determining
the viability of a Department of Defense program to recycle
fluorescent lighting waste in order to increase its supplies
of heavy rare earth elements; and
(4) the recycling of heavy rare earth elements may be one
component of a long term strategic plan to address the global
demand for such elements, without which such elements could
be unnecessarily lost.
(c) Report Required.--
(1) In general.--Not later than March 1, 2013, the
Secretary of Defense shall submit to the congressional
defense committees a report on the results of a cost-benefit
analysis on, and on recommendations concerning, the
feasibility and advisability of establishing a program within
the Department of Defense to--
(A) recapture fluorescent lighting waste; and
(B) make such waste available to entities that have the
ability to extract rare earth phosphors, reprocess and
separate them in an environmentally safe manner, and return
them to the domestic rare earth supply chain.
(2) Elements.--The report required by paragraph (1) shall
include analysis of measures that could be taken to--
(A) provide for the disposal and mitigation of residual
mercury and other hazardous byproducts to be produced by the
recycling process; and
(B) address concerns regarding the potential export of
heavy rare earth materials obtained from United States
Government sources to non-allied nations.

amendment no. 3059

(Purpose: To require a report on the establishment of a joint Armed
Forces historical storage and preservation facility)

At the end of subtitle F of title X, add the following:

SEC. 1064. REPORT ON ESTABLISHMENT OF JOINT ARMED FORCES
HISTORICAL STORAGE AND PRESERVATION FACILITY.

Not later than 180 days after the date of the enactment of
this Act, the Secretary of Defense shall submit to the
congressional defense committees a report setting forth an
assessment of the feasability and advisability of
establishing a joint Armed Forces historical storage and
preservation facility. The report shall include a description
and assessment of the current capacities and qualities of the
historical storage and preservation facilities of each of the
Armed Forces, including the following:
(1) An identification of any excess capacity at any such
facility.
(2) An identification of any shortfalls in the capacity or
quality of such facilities of any Armed Force, and a
description of possible actions to address such shortfalls.

amendment no. 3072

(Purpose: To express the sense of Senate on increasing the cost-
effectiveness of training exercises for members of the Armed Forces)

At the end of subtitle E of title II, add the following:

SEC. 272. SENSE OF SENATE ON INCREASING THE COST-
EFFECTIVENESS OF TRAINING EXERCISES FOR MEMBERS
OF THE ARMED FORCES.

It is the sense of the Senate that--
(1) modeling and simulation will continue to play a
critical role in the training of the members of the Armed
Forces;
(2) while increased modeling and simulation has reduced
overall costs of training of members of the Armed Forces,
there are still significant costs associated with the human
resources required to execute certain training exercises
where role-playing actors for certain characters such as
opposing forces, the civilian populace, other government
agencies, and non-governmental organizations are required;
(3) technological advances in areas such as varying levels
of autonomy for systems, multi-player gaming techniques, and
artificial intelligence could reduce the number of personnel
required to support certain training exercises for members of
the Armed Forces, and thereby reduce the overall cost of the
exercises; and
(4) the Secretary of Defense should develop a plan to
increase the use of emerging technologies in autonomous
systems, the commercial gaming sector, and artificial
intelligence for training exercises for members of the Armed
Forces to increase training effectiveness and reduce costs.

amendment no. 3086

(Purpose: To require assessments by the Air Force of the effects of
proposed movements of airframes on joint readiness training)

At the end of title XVII, add the following:

SEC. 1711. AIR FORCE ASSESSMENTS OF THE EFFECTS OF PROPOSED
MOVEMENTS OF AIRFRAMES ON JOINT READINESS
TRAINING.

The Secretary of the Air Force shall--
(1) undertake an assessment of the effects of currently-
proposed movements of Air Force airframes on Green Flag East
and Green Flag West joint readiness training; and
(2) if the Secretary determines it appropriate, submit to
the congressional defense committees a report setting forth a
proposal to make future replacements of capabilities for
purposes of augmenting training at the joint readiness
training center (JRTC) or for such other purposes as the
Secretary considers appropriate.

amendment no. 3098

(Purpose: To require a report by the suspension and debarment officials
of the military departments and the Defense Logistics Agency)

At the end of subtitle E of title VIII, add the following:

SEC. 888. REPORT BY THE SUSPENSION AND DEBARMENT OFFICIALS OF
THE MILITARY DEPARTMENTS AND THE DEFENSE
LOGISTICS AGENCY.

(a) Report Required.--Not later than 60 days after the date
of the enactment of this Act, the suspension and debarment
official of each agency specified in subsection (b) shall
submit to the congressional defense committees a report on
the suspension and debarment activities of such official
containing the information specified in subsection (c).
(b) Covered Agencies.--The agencies specified in this
subsection are the following:
(1) The Department of the Army.
(2) The Department of the Navy.
(3) The Department of the Air Force.
(4) The Defense Logistics Agency.
(c) Covered Information.--The information specified in this
subsection to be included in the report of a suspension and
debarment official under subsection (a) is the following:
(1) The number of open suspension and debarment cases of
such official as of the date of such report.
(2) The current average processing time for suspension and
debarment cases.
(3) The target goal of such official for average processing
time for suspension and debarment proposals.

[[Page S7178]]

(4) If the average time required for such official to
process suspension and debarment proposals is more than twice
the target goal specified under paragraph (3)--
(A) an explanation why the average time exceeds the target
goal by more than twice the target goal; and
(B) a description of the actions to be taken by such
official to ensure that the average processing time for
suspension and debarment proposals meets the target goal.

amendment no. 3186

(Purpose: To require a study on small arms and ammunition acquisition)

At the end of subtitle E of title VIII, add the following:

SEC. 888. STUDY ON ARMY SMALL ARMS AND AMMUNITION
ACQUISITION.

(a) Study.--
(1) In general.--Not later than 30 days after the date of
the enactment of this Act, the Secretary of Defense shall
enter into a contract with a Federally Funded Research and
Development Center to conduct a study on the Army's
acquisition of small arms and ammunition to determine each of
the following:
(A) A comparative evaluation of the current military small
arms in use by United States general purpose and special
operations forces, allied foreign militaries, and those
potential candidate small arms not necessarily in use
militarily but available commercially.
(B) An assessment of the Department of Defense's current
plans to modernize its small arms capabilities.
(C) A comparative evaluation of the Army's standard small
arms ammunition with other small arms ammunition
alternatives.
(2) Factors to consider.--The study required under
subsection (a) shall take into consideration the following
factors:
(A) Current and future operating environments as specified
or referred to in Department of Defense strategic guidance
and planning documents.
(B) Modifications and improvements recently applied to
United States general purpose and special operations forces
small arms as well as their potential for continued
modification and improvement.
(C) Industrial base impacts.
(3) Access to information.--The Secretary of Defense and
the Secretary of the Army shall ensure that the Federally
Funded Research and Development Center conducting the study
required under subsection (a) has access to all necessary
data, records, analysis, personnel, and other resources
necessary to complete the study.
(b) Report.--
(1) In general.--Not later than September 30, 2013, the
Secretary of Defense shall submit to the congressional
defense committees a report containing the results of the
study conducted under subsection (a), together with the
comments of the Secretary of Defense on the findings
contained in the study.
(2) Classified annex.--The report shall be in unclassified
form, but may contain a classified annex.
(c) Definitions.--In this section:
(1) The term ``small arms'' means--
(A) firearms up to but not including .50 caliber; and
(B) shotguns.
(2) The term ``small arms ammunition'' means ammunition or
ordnance for--
(A) firearms up to but not including .50 caliber; and
(B) shotguns.

Mr. LEVIN. Mr. President, what is the pending matter?
The ACTING PRESIDENT pro tempore. It is now in order for the Senator
from New Hampshire to offer an amendment.
Mr. LEVIN. There is 20 minutes evenly divided?
The ACTING PRESIDENT pro tempore. There will be.
The Senator from New Hampshire.

Amendment No. 3245

Ms. AYOTTE. Mr. President, I ask unanimous consent to temporarily set
aside the pending amendment so I may call up my amendment No. 3245,
which is at the desk.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The clerk will report.
The legislative clerk read as follows:

The Senator from New Hampshire [Ms. Ayotte] proposes an
amendment numbered 3245.

The amendment is as follows:

(Purpose: To prohibit the use of funds for the transfer or release of
certain individuals from United States Naval Station, Guantanamo Bay,
Cuba)

At the end of subtitle D of title X, add the following:

SEC. 1032. PROHIBITION ON USE OF FUNDS FOR THE TRANSFER OR
RELEASE OF INDIVIDUALS FROM UNITED STATES NAVAL
STATION, GUANTANAMO BAY, CUBA.

No authorized to be appropriated funds may be used to
transfer, release, or assist in the transfer or release to or
within the United States, its territories, or possessions of
Khalid Sheikh Mohammed or any other detainee who--
(1) is not a United States citizen or a member of the Armed
Forces of the United States; and
(2) is or was held on or after January 20, 2009, at United
States Naval Station, Guantanamo Bay, Cuba, by the Department
of Defense.

Ms. AYOTTE. Mr. President, I rise in support of my amendment No.
3245.
Last year, in the Defense authorization bill we had in it a
prohibition that would prohibit transferring those who are held in
military custody at the Guantanamo Bay facility from there to the
United States of America. This year, as the language of the Defense
authorization stands, there is no such prohibition, making it possible
for the administration, should it choose, to transfer from the
Guantanamo Bay detention facility 166 foreign enemy combatants who are
being currently detained at Guantanamo. I am deeply concerned that the
Defense authorization does not include this prohibition of transfer
language, and that is why I have brought forth this amendment.
I am also pleased that this amendment is being cosponsored by the
vice chairman of the Senate Select Committee on Intelligence, Senator
Chambliss, as well as Senators Inhofe, Graham, Kirk, and Sessions.
We have at Guantanamo Bay a top-rate facility that allows for the
secure and humane detention and interrogation of foreign terrorist
detainees, including right now the mastermind of the attacks of our
country on 9/11.
I don't think anyone in this body would dispute that when our country
was attacked on September 11, that was an act of war against the United
States of America, and we remain, unfortunately, at war with members of
al-Qaida and other terrorist organizations that want to kill Americans
and our allies simply for what we believe in and for what we stand for
in this country. This is a war, and those who were killed on September
11 were victims of this war.
One of the concerns I have is that when we are at war, the priority
always has to be to detain those who are captured, pursuant to that
war, in military custody.
We have at Guantanamo Bay a top-rate facility. I have visited it
personally. Those who are held there are treated humanely. It is a very
secure facility that is not on our homeland, and it is very well
protected by our military.
Also at that facility is a top-rate court, where military commissions
can be held for those who are charged who are held at Guantanamo Bay.
Why is that important? Because when you are at war, those aren't mere
criminals--they are not mere criminals who have committed a burglary in
our neighborhood. They have committed acts of terror against our
country, and they are very dangerous individuals, many of whom would
attempt do so again were they released. That is another reason why I
have brought this amendment forward, because I think it is very
important that the American people be safe and secure and that those
individuals who are being held there--many of them who are tremendously
dangerous--be held in a secure facility that is not on our soil.
In 2009, the Attorney General discussed and sought to bring Khalid
Shaikh Mohammed--the mastermind of 9/11--to trial in New York City. The
American people and members of both sides of the aisle objected to
having the trial of Khalid Shaikh Mohammed in New York City. As a
result, Khalid Shaikh Mohammed is being held at Guantanamo Bay. He will
be tried by a military commission. But that demonstration made it clear
the American people do not want foreign members of al-Qaida and
associated terrorist organizations being brought to the United States
when we have a secure facility at Guantanamo Bay that we have spent
resources to update, that is very humane.
In fact, in February of 2012, the Washington Post asked: Do you
approve of the decision to keep open the Guantanamo Bay prison for
terror suspects? Seventy percent of the American people who answered
that survey said: Yes, we approve of it.
I want people to understand whom we are talking about transferring
from Guantanamo Bay to the United States of America and understand the
individuals and some of the background of those who are being held at
Guantanamo Bay, coming to a neighborhood near you.

[[Page S7179]]

This is, of course, the mastermind of the September 11 attacks,
Khalid Shaikh Mohammed, who is being held at Guantanamo Bay. He is
often called KSM. He claims to have personally decapitated American
journalist Daniel Pearl in 2002, and he admitted to playing a role in
over 30 terrorist plots. Some of these include a 1995 plot to blow up
12 U.S. airliners flying from Southeast Asia to the United States for
which he was indicted the following year; the 1993 World Trade Center
bombing; a plot to hit towers in Chicago, Seattle, Los Angeles, New
York's Empire State Building, and nuclear power stations. KSM also
claimed he was involved in a plot to assassinate Pope John Paul II and
President Bill Clinton. He, of course, met Osama bin Laden in the
1980s, and in 1999 KSM persuaded Osama bin Laden to support the
horrible acts that occurred on our soil on September 11.
Mullah Mohammad Fazil is another individual being held at Guantanamo
Bay. Fazil is suspected in the death of CIA Officer Johnny ``Mike''
Spann in 2001, the first casualty of the Afghanistan war. He was deemed
by U.S. officials as a high threat to the United States. It was
assessed that he would likely rejoin the Taliban and participate in
operations against U.S. and coalition forces if released. He was at one
time the most senior Taliban leader in northern Afghanistan. In fact,
he was so senior he once threatened Taliban leader Mullah Omar. Fazil
has been implicated in the murder of thousands of Shiites in northern
Afghanistan under Taliban control, and he is wanted by the United
Nations for possible war crimes.
Another individual being held at Guantanamo Bay, Mohammad Nabi, is
tied to a 2002 attack that killed two Americans and maintains loyalty
to al-Qaida.
Let's be clear. There is a 28-percent recidivism rate of those we
have released from Guantanamo Bay back to foreign nationals who have
gotten back into the battle against our country. These are individuals
who have not renounced the war on terror. The recidivism record speaks
for itself. They have gotten into the battle. They still want to be
involved in terrorist activities. They still want to be a member of al-
Qaida or other terrorist groups and commit acts against our country and
our allies.
Again, Mohammed Nabi is tied to the 2002 attack that killed two
Americans. He maintains loyalty to al-Qaida. Yet some of my colleagues,
if you think about it, would insist in other amendments we are dealing
with today that he be treated as a common criminal.
One of the concerns I have is that if we close Guantanamo and we
transfer all of those individuals to the U.S. courts, will they then
claim all of the rights here in the United States? And God forbid any
of them had to be released here as a result of challenges they would
bring.
Nabi was a senior Taliban official also who helped finance the
Taliban and smuggled weapons used against our troops. Nabi maintained
weapons stockpiles and helped smuggle fighters and weapons to attack
our warfighters. He is reportedly loyal to the Pakistan-based Haqqani
terrorist network. The Haqqani network, of course, has been designated
by the State Department as a foreign terrorist organization, and the
Haqqanis are loyal to the Taliban and behind some of the largest
attacks against the United States, Afghan, and coalition troops and
interests in Afghanistan. He was also a member of a joint al-Qaida/
Taliban cell in Khost, Afghanistan, that was involved in attacks
against the United States and coalition forces. He continues to have
issues with his behavior and how he has conducted himself.
The ACTING PRESIDENT pro tempore. The Senator has used 10 minutes.
Ms. AYOTTE. He is just one of the individuals who, if we do not have
this prohibition, may be transferred to the United States of America.
Those are just three of the individuals who are present at Guantanamo
Bay who could be coming to a neighborhood near you. Some may cite--one
of the reasons I brought forth this amendment as well is some may cite
a GAO report saying that we could somehow transfer these individuals
here. Let's be clear what that GAO report says.
The ACTING PRESIDENT pro tempore. The time of the Senator has
expired.
Ms. AYOTTE. I ask this body to agree to this amendment and not bring
these terrorists here to the United States of America.
The ACTING PRESIDENT pro tempore. Who yields time?
The Senator from California.
Mrs. FEINSTEIN. Mr. President, I oppose this amendment, and I ask
Members to vote against it. The distinguished Senator from New
Hampshire just said that any transfer of Guantanamo detainees out of
that facility essentially endangers Americans. But consider how
effectively we hold terrorists in the United States today.
We have 180 terrorists in Federal prisons in the United States of
America who are in maximum security, and they cannot escape. We have
supermax prisons. We have prisons where for 23 hours a day individuals
are in a cell that is all concrete with just a small viewing place.
What this amendment would do is prevent any flexibility forever in
how the U.S. government can handle those held in Guantanamo Bay. For
example, the Guantanamo detainees could not be moved to a supermax
prison in the United States. I don't think preventing options is the
right thing to do. No one in all these years has escaped from a
supermax prison in the United States of America. So clearly, the
detainees could be held safely and securely.
Additionally, I believe this amendment could bring on a veto by the
President. Today, a statement of administration policy was issued that
indicated concern about restricting the transfer of Guantanamo
detainees.
I believe Guantanamo has been a blight on the image of our country
across this world and it should be closed down. It is important to note
that there are reasons to have the flexibility that Senator Ayotte's
amendment would restrict.
For example, there are detainees at Guantanamo who could be
transferred to the U.S. to be convicted in federal criminal courts.
Others try to leave, like the Uighurs, for instance, but there is no
place for them to go. And this amendment restricts them from being
transferred here to the United States.
Many say, why would we let terrorists come to our backyard? Well,
let's consider the hundreds of terrorists that are already in our
backyard serving time at 98 facilities across the United States,
according to a GAO report released yesterday.
The Blind Sheik is incarcerated in a Federal prison in the U.S.
Khalid Shaikh Mohammed's nephew, Ramzi Yousef, is in a Federal prison
here. Richard Reid, the Shoe Bomber, is in a Federal prison here.
Najibullah Zazi and Adis Medunjanin, who plotted to bomb New York
subway system, are both in Federal prison here.
I have a list of terrorists arrested here, 98 of them since 2009, who
will go to Federal prisons. Let me describe a few of these arrests. One
of the examples was earlier this month, Ralph Deleon, with Miguel
Alejandro Santana Vidriales and Arifeen David Gojali were arrested by
the FBI. They were planning to travel to Afghanistan to attend
terrorist training and commit violent jihad. They will do time in a
Federal prison here. Rezwanul Ahsan Nafis plotted to bomb the New York
Federal Reserve Bank on October 20, 2012. He will do time in a Federal
prison here. Adel Daoud plotted to bomb a downtown Chicago bar in
September 2012, and he will do time in a Federal prison here.
Our Federal prisons hold terrorists already and they will continue to
hold them. So to remove any kind of flexibility on Guantanamo and to
say that you cannot move a detainee out of the facility and into a
Federal prison in the United States is a mistake. I very strongly
believe perpetuating Guantanamo forever is a mistake. So I ask my
colleagues to vote no on this amendment.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from New Hampshire.
Ms. AYOTTE. Mr. President, I ask unanimous consent to have 2 minutes
to respond, and then I will defer to my colleague from South Carolina.
Mr. LEVIN. Reserving the right to object, how much time is left on
each side?
The ACTING PRESIDENT pro tempore. Time in opposition is 5\1/2\
minutes.

[[Page S7180]]

The proponents of the amendment have no time remaining.
Ms. AYOTTE. I don't have any time remaining. OK.
Mr. LEVIN. Would the Senator from California agree that there be 5
minutes added to each side?
Mrs. FEINSTEIN. I do not need additional time. I would be willing to
add an additional 2 minutes.
Ms. AYOTTE. Then I defer.
Mr. LEVIN. That is fine. I think there is no objection.
Mr. GRAHAM. We thought there was 20 minutes on each side. Apparently,
it is close enough. Just a few minutes? But I want Senator Ayotte to
wrap this up.
Mr. LEVIN. I ask unanimous consent that 6 additional minutes be added
to the proponents of this amendment and, if needed, that 6 additional
minutes be added to the other side.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Ms. AYOTTE. Mr. President, I would like to respond briefly.
I have great respect for the Senator from California. The distinction
here in the cases she has been citing--the disposition of them--I think
is a very important distinction. Certainly we have good Federal court
systems. They are designed, though, for criminals and for crimes.
Guantanamo Bay is a secure facility on which we have spent substantial
resources to make a top-grade facility. I visited there. That is for
terrorists when there is an act of war against our country, and those
individuals who are being held there have committed acts that warrant
them being held in military detention because of the terrorist acts I
have outlined and the individuals involved. There is a big distinction,
and the American people do not want those individuals brought here to
the United States of America.
With that, I yield the remainder of my time to the Senator from South
Carolina.
The ACTING PRESIDENT pro tempore. The Senator from South Carolina.
Mr. GRAHAM. Mr. President, long story short, the American people
believe that the military prison in Guantanamo Bay, Cuba, isolated from
the American population, that is being well run by our military and
monitored by all kinds of organizations, is a satisfactory answer to
the problem of terrorism. Simply stated, the American people do not
want to close Guantanamo Bay, which is an isolated, military-controlled
facility, to bring these crazy bastards who want to kill us all to the
United States. Most Americans believe that the people at Guantanamo Bay
are not some kind of burglar or bank robber. They are bent on our
destruction. I stand with the American people, that we are under siege,
we are under attack, and we are at war.
Some of my colleagues in this body have forgotten what 9/11 is all
about. The people in that prison who attacked us on 9/11 want to
destroy our way of life. They do not want to steal your car. They don't
want to break into your house.
We have a military prison being well run, so I think the American
people are telling everybody in this body: Have you lost your minds? We
are at war; act like we are at war.
I yield.
The ACTING PRESIDENT pro tempore. The Senator from California.
Mrs. FEINSTEIN. Mr. President, I have heard a lot of hyperbole
tonight. Of course we are at war. Part of the glory of this country is
the values we hold dear. We have a Federal court system that has
worked. We have 373 people connected to terrorism serving time in the
Federal prisons of the United States of America. They are under an
entity called the Bureau of Prisons that sees that the facilities are
run the way they should be. Most are in isolated areas, such as the one
in Florence in Colorado. It is far from the city--I think some 30
miles--and is a maximum security prison in part.
The GAO report just released yesterday showed that the Federal prison
system can hold Guantanamo detainees safely and securely. To keep
Guantanamo open forever, to say that there is no flexibility as to what
you can do with the detainees in terms of transferring them into the
United States, into Federal custody, I think is wrong.
I have seen and watched on the Judiciary Committee and the
Intelligence Committee real problems with military commissions. I think
Senator Graham understands that and has seen it as well. I do not
believe the rate of convictions in Military Commissions any way equals
the rate of convictions in Federal courts and think about how much time
it has taken to get the Military Commission trials going compared to
federal courts.
I really think this is very much a kind of political movement, that
Guantanamo, isolated from everything, run by the military, has to keep
people for the rest of their lives. Maybe that is what some people
think. But a terrorist act is also a criminal act. It is a heinous
criminal act, but one which our federal criminal courts can provide
justice. Not just Guantanamo. So I really urge a ``no'' vote on this.
Hopefully, if it passes, it can be removed in conference.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Michigan.
Mr. LEVIN. How much time remains for the opponents?
The ACTING PRESIDENT pro tempore. Three minutes.
Mr. LEVIN. Mr. President, I very much oppose this amendment. We have
a court system in this country which is second to none. To deny this
administration or any administration the opportunity, should they
choose to exercise their discretion, to charge terrorists as criminals
seems to me to be highly unwise and is not a particularly strong step
in the war against terrorism.
This amendment is undesirable. It would create a permanent
restriction on the administration's options--not, by the way, just this
administration's options, any administration's options in conducting
the fight against terrorism. It prevents the administration's ability
to bring any detainee from Guantanamo for any purpose, including their
prosecution in court. I think it is unwise and not a strong step at all
in the war on terror to deprive the President of the tools he might
need to carry out the protection of this country from the threat of
terrorism.
This amendment would permanently cut off the possibility of
prosecuting these Guantanamo detainees in Federal court. I hope we do
not do that. I hope we defeat the amendment of my friend from New
Hampshire, Senator Ayotte.
Finally, this is what we call veto bait. The administration continues
to strongly oppose these provisions which intrude upon the executive
branch's ability to carry out its military, national security, and
foreign relations activities and to determine when and where to
prosecute Guantanamo detainees.

So it is unwise in terms of our national security; it is unwise in
terms of the rigidity it imposes on the executive branch as to where to
prosecute terrorists, alleged terrorists, and it also jeopardizes the
signing of this bill as soon as we can get this bill to a conference
and get a conference report back to both bodies. So I hope we defeat
the Ayotte amendment.
If we have any time left, I yield it back.
Mr. President, what is the pending business?
The ACTING PRESIDENT pro tempore. The Ayotte amendment is pending.
Mr. LEVIN. Has all time been used?
The ACTING PRESIDENT pro tempore. All time has expired.
Mr. LEVIN. So under the existing UC, we are now moving to the
Feinstein amendment, and that is now the pending business?
The ACTING PRESIDENT pro tempore. It has not been called up yet by
the Senator from California.
Mr. LEVIN. I understand. Let me then ask unanimous consent that
Senator Inhofe, on behalf of Senator Coons and himself, offer a cleared
amendment at this point.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.

Amendment No. 3201

Mr. INHOFE. Mr. President, I ask unanimous consent to set aside the
pending amendment for the consideration of amendment No. 3201.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The clerk will report.
The assistant legislative clerk read as follows:

[[Page S7181]]

The Senator from Oklahoma [Mr. Inhofe], for Mr. Coons and
himself, proposes an amendment numbered 3201.

Mr. INHOFE. I ask unanimous consent that the reading of the amendment
be dispensed with.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The amendment is as follows:

(Purpose: To express the sense of the Senate on ongoing efforts to
apprehend or remove Joseph Kony and his top commanders from the
battlefield and end atrocities perpetuated by his Lord's Resistance
Army)

At the end of subtitle D of title XII, add the following:

SEC. 1246. EFFORTS TO REMOVE JOSEPH KONY FROM POWER AND END
ATROCITIES COMMITTED BY THE LORD'S RESISTANCE
ARMY.

Consistent with the Lord's Resistance Army Disarmament and
Northern Uganda Recovery Act of 2009 (Public Law 111-172), it
is the sense of the Senate that--
(1) the ongoing United States advise and assist operation
to support the regional governments in Africa in their
ongoing efforts to apprehend or remove Joseph Kony and his
top commanders from the battlefield and end atrocities
perpetuated by his Lord's Resistance Army should continue;
(2) using amounts authorized to be appropriated by section
301 and specified in the funding table in section 4301 for
Operation and Maintenance, Defense-wide for ``Additional ISR
Support to Operation Observant Compass'', the Secretary of
Defense should provide increased intelligence, surveillance,
and reconnaissance assets to support the ongoing efforts of
United States Special Operations Forces to advise and assist
regional partners as they conduct operations against the
Lord's Resistance Army in Central Africa;
(3) United States and regional African forces should
increase their operational coordination; and
(4) the regional governments should recommit themselves to
the operations sanctioned by the African Union Peace and
Security Council resolution.

Mr. INHOFE. Mr. President, this amendment has been cleared on both
sides. This is the one that originally we had several years ago
concerning the Lord's Resistance Army in Africa and the showing that we
have a policy in this country to bring this man down, the man called
Joseph Kony. And we want to renew this so that we will have this
pending again. It doesn't change anything that is going on at the
present time except it keeps our policy in effect; that we are after
the Lord's Resistance Army, and we will do what we have been doing in
the past until it is completed.
So I ask my colleagues to adopt this amendment.
The ACTING PRESIDENT pro tempore. Is there further debate?
The Senator from Michigan.
Mr. LEVIN. Let me, first of all, commend Senators Inhofe and Coons.
This is a very important amendment, and the determination to go after
Kony and the Lord's Resistance Army is essential not just in terms of
the values that we so dearly believe in, but also in terms of avoiding
further slaughter that has been perpetrated by Kony.
So I commend Senators Inhofe and Coons, and I hope this amendment
will not only pass but will send a very important statement as to where
America stands on this subject.
The ACTING PRESIDENT pro tempore. Is there further debate on the
amendment?
If not, the question is on agreeing to the amendment.
The amendment (No. 3201) was agreed to.
Mr. LEVIN. Mr. President, I move to reconsider the vote.
Mr. INHOFE. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. INHOFE. Mr. President, I think we may have someone--we want to
yield 5 minutes to the Senator from Utah.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The Senator from Michigan.
Mr. LEVIN. The pending business is still the Ayotte amendment. I am
just wondering if the Senator from Utah might indicate what it is that
he will speak on.
Mr. LEE. I wish to speak for 5 minutes regarding the Feinstein-Lee
amendment.
Mr. LEVIN. I wonder if we could get to the Feinstein amendment. I am
sure Senator Feinstein will be happy to yield time to the Senator from
Utah.
The ACTING PRESIDENT pro tempore. The Senator from California.

Amendment No. 3018

Mrs. FEINSTEIN. I ask unanimous consent to call up amendment No.
3018.
The ACTING PRESIDENT pro tempore. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from California [Mrs. Feinstein], for herself,
Mr. Lee, Mr. Coons, Ms. Collins, Mr. Paul, Mr. Lautenberg,
Mrs. Gillibrand, and Mr. Kirk, proposes an amendment numbered
3018.

Mrs. FEINSTEIN. I ask unanimous consent that the reading of the
amendment be dispensed with.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The amendment is as follows:

(Purpose: To clarify that an authorization to use military force, a
declaration of war, or any similar authority shall not authorize the
detention without charge or trial of a citizen or lawful permanent
resident of the United States)

At the end of subtitle D of title X, add the following:

SEC. 1032. PROHIBITION ON THE INDEFINITE DETENTION OF
CITIZENS AND LAWFUL PERMANENT RESIDENTS.

Section 4001 of title 18, United States Code, is amended--
(1) by redesignating subsection (b) as subsection (c); and
(2) by inserting after subsection (a) the following:
``(b)(1) An authorization to use military force, a
declaration of war, or any similar authority shall not
authorize the detention without charge or trial of a citizen
or lawful permanent resident of the United States apprehended
in the United States, unless an Act of Congress expressly
authorizes such detention.
``(2) Paragraph (1) applies to an authorization to use
military force, a declaration of war, or any similar
authority enacted before, on, or after the date of the
enactment of the National Defense Authorization Act For
Fiscal Year 2013.
``(3) Paragraph (1) shall not be construed to authorize the
detention of a citizen of the United States, a lawful
permanent resident of the United States, or any other person
who is apprehended in the United States.''.

Mrs. FEINSTEIN. I note that Senator Lee is on the floor, and I know
he wants to speak as he is a cosponsor of this amendment. So I will
yield to him, and then when he finishes I will speak.
The ACTING PRESIDENT pro tempore. The Senator from Utah.
Mr. LEE. Mr. President, I appreciate the opportunity to speak
regarding amendment No. 3018, the Feinstein-Lee amendment.
It has come to my attention that some opponents of the Feinstein-Lee
amendment have made an argument that habeas corpus is sufficient to
protect the rights of Americans apprehended on American soil and
detained by the United States Government. This is nothing more than
another way of suggesting that the government should be able to detain
some Americans indefinitely without charge or trial. I disagree and
believe that our constitutional traditions demand more than this--
significantly more.
The fifth amendment of our Constitution provides that ``No person . .
. shall be . . . deprived of life, liberty, or property without due
process of law.''
As Supreme Court Justice Antonin Scalia has written:

The gist of the Due Process Clause, as understood at the
founding and since, was to force the government to follow . .
. common-law procedures traditionally deemed necessary before
depriving a person of life, liberty, or property.

This right of American persons to due process of law is foundational
to the very idea of individual liberty from unwarranted government
intrusion.
I have worked with Senator Feinstein and other colleagues on both
sides of the aisle to craft an amendment originally entitled the Due
Process Guarantee Act to ensure that this basic constitutional right is
indeed protected. I believe even with the serious national security
threats we now face, America must hold fast to our most fundamental
constitutional rights and liberties.
The U.S. Government should not be authorized to detain Americans
indefinitely without charge and without trial. As Justice Scalia
explained, the proposition that the Executive lacks indefinite wartime
detention authority over citizens is consistent with the Founders'
general mistrust of military power permanently at the Executive's
disposal.
I believe it is clear that the Founders of our Constitution were
acutely aware of this critical tradeoff--the tradeoff

[[Page S7182]]

we still face today--between safety on the one hand and freedom on the
other. On this very point, Alexander Hamilton was prescient. He wrote:

Safety from external danger is the most powerful director
of national conduct. Even the ardent love of liberty will,
after a time, give way to its dictates. The violent
destruction of life and property incident to war; the
continual effort and alarm attendant on a state of continual
danger, will compel nations the most attached to liberty, to
resort for repose and security to institutions which have a
tendency to destroy their civil and their political rights.
To be more safe they, at length, become willing to run the
risk of being less free.

Our Nation's Founders warned us about the great danger of sacrificing
our most basic liberties in the pursuit of security--security at all
costs. They provided us with a Constitution framed to prevent precisely
such a tragic outcome.
I urge my colleagues to vote in favor of the Feinstein-Lee amendment
and against the mistaken idea that the government may detain American
persons indefinitely without charge and without trial.
Thank you, Mr. President. I yield back the remainder of my time to
Senator Feinstein.
The ACTING PRESIDENT pro tempore. The Senator from California.
Mrs. FEINSTEIN. Mr. President, the amendment before us is cosponsored
by the distinguished Senator who just spoke, Senator Lee, as well as
Senators Coons, Collins, Paul, Lautenberg, Gillibrand, Kirk, Tester,
Johnson, Sanders, Whitehouse, Heller, Baucus, DeMint, Webb, Klobuchar,
Bingaman, Rockefeller, Begich, and Boxer. An amendment similar to this
received 45 votes in the last session.
I wish to spend a moment on the genesis of this amendment because,
for me, it goes back to April 1942, the day a Western Defense Command
and Fourth Army Wartime Civil Control order went out in San Francisco
with instructions to all persons of Japanese ancestry, that: All
Japanese persons, both alien and nonalien, will be evacuated from the
above designated areas by 12 o'clock noon on Tuesday, April 7, 1942. No
Japanese person will be permitted to enter or leave the above described
area after 8 a.m. Thursday.
That was in the city of San Francisco.
What was created was an internment camp near the city which became a
staging area for the placement of Japanese Americans in detention camps
without charge or trial for the remainder of World War II.
This was Tanforan Racetrack, directly south of San Francisco. One
Sunday afternoon--I was a small child in 1942--my father took me down
to show it to me. This is what I saw. We see stalls made into bunk
houses. We see the center of the field made into barracks. We see the
little places where individuals were kept. We see Japanese-American
citizens who did nothing wrong who were being interned for years during
World War II.

It was shocking. Then it took until 1971 for a bill to be passed and
then signed by President Nixon reversing the policy. That bill was
called the Non-Detention Act of 1971, and it repealed a 1950 statute
that explicitly allowed detention of U.S. citizens. That 1971 bill
said--and I quote:

No citizen shall be imprisoned or otherwise detained by the
United States except pursuant to an act of Congress.

Since then and after 9/11, various cases were litigated and went as
far up as the Supreme Court. One of them in 2004 was Hamdi v. Rumsfeld,
and it addressed a very narrow issue involving a citizen captured on
the battlefield of Afghanistan. Then a second case, Padilla v.
Rumsfeld, in the Second Circuit Court of Appeals involved an American
citizen captured in the U.S.
So the question is whether the Non-Detention Act of 1971 prevents
U.S. citizens captured in the U.S. like Padilla from being detained or
whether the AUMF passed after 9/11 authorizes such law of war detention
in the U.S.
What we are trying to do with this simple amendment is what is called
a clear statement rule, to say once and for all:

An authorization to use military force, a declaration of
war, or any similar authority shall not authorize the
detention without charge or trial of a citizen or lawful
permanent resident of the United States apprehended in the
United States unless an Act of Congress expressly authorizes
such detention.

I know this is a sensitive subject, but I believe we stand on the
values of our country, and one of the values of our country is justice
for all. And we have a Constitution that has 7 articles and 27
amendments that give us fundamental protections.
This amendment, which builds on the continuing application of the
principles behind the Non-Detention Act of 1971, would provide very
clearly that no military authorization allows the indefinite detention
of U.S. citizens or green card holders who are apprehended inside the
United States. Some may ask why just include citizens and green card
holders. Let me be clear, if I could further and add ``all persons''
and get as many votes, I would. I do not think it would, and we have
looked into how to do this for a year now. So we have limited it to
what we believed could get the maximum number of votes in this body.
Here is the point of this amendment: What if something happens and
you are of the wrong race in the wrong place at the wrong time, and you
are picked up and held without trial or charge in detention ad
infinitum? We want to clarify so this cannot happen; so that the law
does not permit an American citizen or a legal permanent resident to be
picked up and held without end, without charge or trial.
I want to say that the FBI and other law enforcement agencies have
proven time and time again that they are up to the challenge of
detecting, stopping, arresting, and convicting terrorists found on U.S.
soil.
I have a document that was prepared by the Intelligence Committee
staff lists 98 terrorists who have been arrested and are on their way
to conviction and will do time, many of them life sentences, in Federal
prisons, and these are just those arrested in the last 3 or 4 years.
Since January of 2009, there are 98 who have been successfully
arrested. I think it is important to understand that suspected
terrorists who may be in the United States illegally can be detained
within the criminal justice system under four options that exist today.
They can be charged with a Federal or State crime and held. They can be
held for violating immigration laws. They can be held as material
witnesses as part of a Federal grand jury proceedings. They can be held
under section 412 of the PATRIOT Act for up to 12 months.
This amendment is not about whether citizens such as Hamdi and
Padilla--or others who would do us harm--should be captured,
interrogated, incarcerated, and severely punished. They should be and
they are.
It is about the innocent American, again in the wrong place, at the
wrong time, who gets picked up, like these innocent Japanese Americans
shown in this picture who just happened to live in a certain part of
the United States, in my hometown, San Francisco. But this was what
happened. People were picked up and held for the duration of the war--
just because of their race.
Finally, I want to quote Justice Sandra Day O'Connor, who wrote for
the plurality in the Hamdi decision in 2004:

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 present that sort of threat.

So it is my hope we can clarify U.S. law to state unequivocally that
the government cannot indefinitely detain American citizens or legal
residents captured inside this country without trial or charge.
We live with the stain of how we treated some of our own people
during World War II. It should not be repeated.
I thank the Acting President pro tempore, and I would like to yield
to the distinguished Senator Paul, if I may.
The ACTING PRESIDENT pro tempore. The Senator from Kentucky.
Mr. PAUL. Mr. President, I rise today in support of the Feinstein-Lee
amendment to prevent the indefinite detention of American citizens
without a trial by jury. In the year 1215, the English barons gathered
on the plain at Runnymede. They gathered to protest against King John.
They gathered for their rights as free men. And they gathered for the
right to trial by jury.

[[Page S7183]]

We have had it enshrined in both English law and American law for 800
years. It seems a shame to scrap it now.
People say: But these terrorists are horrible people. Yes, they are
horrible people. But every day and every night in our country horrible
people are accused of crimes, and they are taken to court. They have an
attorney on their side. They are given a trial. People we despise,
people who murder and rape, are given trials by juries. We can try and
we can prosecute terrorists.
People say: But they are terrorists. Well, the thing is, you are an
American citizen and you are accused of terrorism. Who is going to
determine who is a terrorist and who is not a terrorist? They do not
walk around with a badge. They do not walk around with a card that
says: I am from al-Qaida. They will be accused of a crime, and there
will be facts. Someone must judge the facts. That is what a jury does.
To give up on this because we are afraid of terrorists is to give in
to the terrorists. If we give up our rights, if we relinquish our
rights, haven't the terrorists then won?
Jefferson said the right to trial by jury was the ``anchor,'' it was
the anchor by which we protect ``the principles of the Constitution.''
Senator La Follette, a Senator from Wisconsin, said if we give up
these rights, if we are unable to protect these rights, that ultimately
the Bill of Rights loses its value.
He said:

Let no man think that we can deny civil liberty to others
and retain it for ourselves. When zealot agents of the
governments arrest suspected radicals without warrant, hold
them without prompt trial, deny them access to counsel and
admission of bail . . . we have shorn the Bill of Rights of
its sanctity. . . .

I would ask today of my colleagues that we have a chance to replace
fear with confidence--confidence that no terrorist will ever conquer us
if we remain steadfast to our principles--the principles of our
Founders. We have nothing to fear except our own unwillingness to
protect our rights. If we relinquish our right to trial by jury, we
will have given up so much. Do not let those who would instill fear let
you give up the most basic of rights--a right that prevents the
oppression of government and the evolution or devolution into
despotism.
So I hope my colleagues will today vote to uphold an 800-year-old
tradition, a tradition that is enshrined in the body of our
Constitution, a tradition that is enshrined in our Bill of Rights, and
a tradition that is in every constitution of all 50 States. Are we to
give that up because we are fearful? We can and have convicted
terrorists. We are not talking about terrorists from overseas. We are
not talking about a battlefield somewhere else. We are talking about
American citizens accused in our country.
Why should you be wary? The government has descriptions of who might
be a terrorist. If you have 7 days' of food in your basement, you might
be a terrorist. If you have weatherized ammunition, you might be a
terrorist. This is what your government describes as things you should
report. Know your neighbor to report your neighbor. If you have
weatherized ammunition, multiple guns, food in your basement, if you
like to pay by cash--if these are the characteristics for which you
might be accused of terrorism, would you not, at the very least, still
want to retain your right as an American citizen to a right to a trial
by a jury of your peers?
I ask that we step up today and support an ancient tradition. And I
worry about a country that would let a tradition like the right to
trial by jury go so easily.
Thank you, Mr. President.
The ACTING PRESIDENT pro tempore. The Senator from South Carolina.
Mr. GRAHAM. Mr. President, I appreciate the opportunity. This is a
good debate. It is a fascinating discussion. I guess the way I look at
this issue--and we will talk with Senator Levin in a bit--I have been a
military lawyer for about 30 years, and the first thing you do in JAG
school is have a discussion about the difference between the law of war
and criminal law. Every military lawyer is taught from the very
beginning of their career that law of war detention is designed to
neutralize the enemy and to gather intelligence about the enemy.
There is a reason that when we capture somebody in a war we do not
give them a trial by jury, and we do not give them a lawyer. We have
3,000 people in American military custody in Afghanistan who were
captured on the battlefield, and they are held under the law of war
because we do not want to let them go back to killing us. And they are
not given a lawyer because we are not trying to solve a crime; we are
trying to win a war.
Here is the question to my good friend from California: I do not want
anyone to believe that under the law of war construct we have created
over the last 7 or 8 years that you can be put in jail because you look
like a Muslim, that you sound like a Muslim, that you have got a name
Mohammad. What happened to Japanese-American citizens is they were put
in military custody because we were all afraid and they looked like the
enemy. That was not a high point in America.
What are we talking about here? We are talking about detaining people
under the law of war who are suspected of joining al-Qaida or the
Taliban and engaging in a belligerent act against the United States. I
want to make the record clear that some of my colleagues on the
Republican side have been trying to deny law of war detention to the
Obama administration, and they have openly said this: If you allow this
to happen, President Obama is going to put you in jail because of
political dissent.
There are people on my side who are afraid of law of war detention
being in Barack Obama's hands because they think,--they hate him so
much they think he is going to use a provision to protect us against an
al-Qaida attack to put them in jail because they disagree with his
agenda.
It gets worse. I want you to know this. There has been a statement in
our conference that habeas corpus review by an independent judiciary
where the intelligence community, the military, would have to prove in
court by a preponderance of the evidence that the person in question
has, in fact, engaged in hostilities against the United States by
helping the Taliban or al-Qaida--that is the requirement of the
government--they have to prove that to the judge, that is not really a
check on government power because the judge could be an Obama
appointee.
As much as I disagree with President Obama, as much as I think he has
been a divisive President, in many ways has failed to lead, I want to
disassociate myself from the concept that you cannot give this
Commander in Chief the powers that Commanders in Chief have enjoyed in
other wars because we hate him so much.
To my friends who get on the Internet and talk radio and stoke this
paranoia, we are afraid enough for good reason. This is a dangerous
world. We are about to walk off the fiscal cliff. We have people out
there trying to undermine our way of life. There is a lot to be afraid
of: Al-Qaida coming back to our shores, recruiting American citizens to
help their endeavors. I hate to say it, in every war we have ever been
in, there have been occasions when Americans joined the enemy.
In World War II that happened. You had German saboteurs land on Long
Island, aided and abetted by American citizens sympathetic to the
Nazis. All of those American citizens in In Re: Quirin were held in
military custody and tried by the military because we have long
understood that when you join the enemy, that is not a crime but an act
of war.
We have very bad people who get a right to a jury trial. I will be
the first one to say that when you go to court, no matter if you are
the worst terrorist in the world, you will get a jury trial, you will
get a lawyer, and you will have your due process rights. But the
difference I am trying to inform the body of when you are fighting a
war is the goal is not to prosecute people, the goal is to win. And how
do you win a war? You kill them; you capture them; you interrogate them
to find out what they are up to next. So I am here to say to my
colleagues that the al-Qaida-Taliban efforts to do harm to our Nation
are alive and growing. The narrative that al-Qaida has been decimated
is a false narrative. What happened in Libya, unfortunately, is going
to happen again.

[[Page S7184]]

I know my good friend from California, who is the chairman of the
Intelligence Committee, knows there are active efforts in our own
backyard--and Joe Lieberman can tell you, too--to recruit American
citizens to attack us--not to commit a crime, to join the enemy.
All I am suggesting is that Barack Obama and every Commander in Chief
in the future needs to have the tools available to protect us against
an enemy. And the basic question is: Is fighting al-Qaida fighting a
crime or fighting a war? I believe with all of my heart and soul that
they do not want our property, they do not want our cars, they do not
want our bank accounts, they want to destroy us. They hate what we
stand for. Just as in World War II, when you decided to help the Nazis,
you were held in military custody because you did something other than
commit a crime.
The goal here is if you capture an American citizen who has sided
with the enemy that we preserve the ability of our military
intelligence community to find out what they know about future attacks
and present attacks. The goal of a criminal prosecution is to find
justice under a criminal statute. The goal in time of war is to win.
I do not believe in torturing people to get good information, but I
do believe in interrogating them for military purposes if they have
sided with the enemy.
This is a great debate. But the one thing I do not want to associate
myself with is as much as I may disagree with this President's agenda,
there are people on my side of the aisle who are stirring up their
fellow Americans, making them afraid that Barack Obama could use
legitimate powers in a time of war to gather intelligence against
people who sided with the enemy to come after them because they look
different or they may have a different political belief. I want to
disassociate myself with those on my side of the aisle who say that
habeas corpus, an independent judiciary, is not an adequate check
because Barack Obama may have appointed the judge. That undermines our
judiciary. That creates paranoia. That creates a fundamental distrust
of what I think is something we should be all proud of: America.
This war will last probably longer than most of us. It is an
ideological struggle. There is no capital to conquer, like Berlin and
Japan. There is no air force to shoot down. There is no navy to sink.
It is about an ideology that must be contained and fought, an ideology,
unfortunately, that will be attractive to some Americans as it was in
other wars.
Unfortunately, as I speak today, the enemy is trying to come back to
our shores and use some American citizens to further their cause. To an
American citizen: Do not join al-Qaida or the Taliban. Do not turn on
your country. Do not side with their view of humanity. If you do, you
have not committed a crime, you have engaged in an act of war against
the rest of us and we have a right to win this war. We have a right to
hold you under the law of armed conflict as we have held others in the
past, to find out why you joined, what you know, and what they are up
to next. There is no American citizen in law of war custody. This
President has not rounded up one person and put them in jail using the
statute that exists today because they disagreed with him. I do not
believe he will. All I am asking is that we have options available in
this war that have existed in every war America has fought. Because
here is my bottom-line belief, that as much as the Nazis represented a
threat to humanity, al-Qaida represents an equal threat to humanity.
And nobody in World War II would have entertained the idea that if you
sided with the Nazis and you helped the saboteurs blow up parts of
America, you should be considered anything other than an enemy who has
joined the other side.

So unlike criminal law, where you are trying to find justice for
victims, this is about winning a war and marginalizing the enemy. And
when the enemy is able to turn one of our own, the last thing in the
world we should do is deny ourselves the ability to interrogate that
person in a way to help us win the war and keep us safe. That has been
the law forever when it comes to war. That is the law today, that will
be the law tomorrow.
I look forward to talking to Senator Levin, who has been a 100-
percent voice of reason, to talk about authorization to use force and
the ability to detain.
I will end with this thought: If you deny the ability to gather
intelligence and detain, you do not want to put our troops in a
position where they have to kill everybody they find. We want to
capture the enemy when we can. Because when you capture the enemy, not
only do you hurt the enemy, you find out a lot about what they are up
to. Here is the question: If an American citizen is engaging in helping
al-Qaida and the Taliban in a terrorist activity on our shores, are
they the enemy? Yes, they are. We need to know about why they did what
they did and what they are going to do next.
With that, I will yield.
Mrs. FEINSTEIN. Mr. President, how much time remains on our side?
The ACTING PRESIDENT pro tempore. There is 9 minutes 15 seconds.
Mr. LEVIN. How much time is there left on our side?
The ACTING PRESIDENT pro tempore. There is 17 minutes 24 seconds.
Mrs. FEINSTEIN. I will wait until the very end and give the
distinguished chairman the opportunity.
The ACTING PRESIDENT pro tempore. The Senator from Michigan.
Mr. LEVIN. Mr. President, it would be my intent, if we need
additional time, unless there is something else that is needed at about
9:30 or so when this time runs out, to seek additional time for both--
for anyone who needs it, frankly. I do not know about both sides,
because this is a multifaceted debate that we are going to have here
tonight on this issue.
I would yield myself 10 minutes. I would ask to be notified when I
get to 10 minutes.
The Feinstein amendment provides that no authorization for the use of
military force may be construed to authorize the detention of U.S.
citizens or lawful resident aliens who are captured inside the United
States, unless--and this is a big ``unless''--an act of Congress
expressly authorizes such detention.
As I read the amendment, it says the military detention of U.S.
citizens may be authorized in accordance with the law of war as long as
this action is expressly authorized by Congress. Further, the
amendment's requirement for express authorization applies only to the
detention of U.S. citizens who are captured inside the United States.
So no such authorization would be required for the detention of a U.S.
citizen in the course of military operations overseas. I believe it is
appropriate that Congress focus on the issue of military detention at
the time they authorize the use of military force, as would be required
by the Feinstein amendment.
As the Supreme Court has stated: Detention is a fundamental and
accepted incident to armed conflict. Without such authority, our Armed
Forces could be put in the untenable position of being able to shoot to
kill but not to capture and detain enemy forces.
As to the ongoing conflict, I believe the 2001 authorization for the
use of military force authorized the detention of U.S. citizens when
appropriate in accordance with the laws of war.
I base this view on the fact that the Supreme Court has said so.
In the Hamdi case, the Supreme Court considered the relationship
between the AUMF and the nondetention act which prohibits the detention
of a U.S. citizen except where authorized by an act of Congress. The
Supreme Court held in Hamdi that this statute does not preclude the
detention of U.S. citizens on the battlefield in Afghanistan because
the 2000 authorization for the use of military force, quoting the
Supreme Court, ``is explicit congressional authorization for the
detention of individuals'' in such circumstances. The Court explained
that such detention is so fundamental and accepted as an incident to
war as to be an exercise of the ``necessary and appropriate force''
that Congress authorized the President to use in the AUMF. In other
words, the Supreme Court has already concluded that the authorization
to use necessary and appropriate force is an explicit authorization to
detain enemy combatants in accordance with the law of war, and that
meets the test of the Feinstein amendment.
Any other conclusion would lead to absurd results, under which we
would tie the hands of our Armed Forces even

[[Page S7185]]

in the face of an actual invasion. For example, if a group of
terrorists were to approach one of our Navy bases in boats loaded with
bombs, our sailors protecting those ships at that base would be in the
untenable position of being able to shoot to kill, but not to capture
the enemy forces if Hamdi did not reach the conclusion it did.
Similarly, in the unthinkable event that we were to experience a 9/
11-type attack, our military would be in the untenable position of
having the authority to shoot down the hijacked aircraft but not to
force them to land and to capture the enemy hijacker. Of course, we
could not expect our military to inquire as to whether any of the enemy
force were American citizens before deciding on the level of force to
be applied.
As the Supreme Court explained in its Hamdi decision, ``the capture,
detention, and trial of unlawful combatants, by 'universal agreement
and practice,' are 'important incidents of war''' and a ``fundamental
and accepted incident to war.''
What the Supreme Court said in Hamdi is explicit in the AUMF, in the
authorization for use of military force, the core ``law of war''
authority for our military to capture and detain those who join enemy
forces at a time of war and plan or participate in attacks against us.
This core authority to use less than lethal force, rather than lethal
force, in appropriate circumstances must be available to our military
whenever and wherever it engages with the enemy.
Again, Senator Feinstein's amendment does not prohibit the military
detention of U.S. citizens who are captured or apprehended inside the
United States because a U.S. citizen who joins a foreign army and
attacks the United States should be subject to detention as an enemy
combatant if it does not prohibit military detention and if it is
expressly authorized by law. I read this as a statute authorizing the
use of military force itself or some other act of Congress.
This is a major difference between or from the amendment Senator
Feinstein offered last year, which included no exception for
congressional authorization. This new approach is appropriate because I
believe that Congress ought to address the issue of detention of U.S.
citizens when captured in the United States at the time that we
authorize the use of force.
The Supreme Court in Hamdi held that the existing authorization for
use of military force does address this issue and does explicitly, in
their words, authorize detention of U.S. citizens in that situation
which was on the battlefield in Afghanistan, but that it explicitly,
again in the words of the Hamdi Court, authorized the detention of U.S.
citizens in the case of an individual who was captured in Afghanistan
who was attacking U.S. forces.
I believe the same reasoning applies to persons who join foreign
armies and attack us militarily here in the United States when they
bring the war here to the United States and attack us here. If they
attack a Navy base and are captured by sailors defending their ships,
the same logic that Hamdi applied to an attack in Afghanistan against
our forces applies here. That is the same reason they used in that case
to find that there was an explicit authorization for the detention of
U.S. citizens in the Afghanistan circumstance; that it is an inherent
fundamental function of war, that you be able to capture and detain
people who are at war with you, applies when that act of war is carried
out here in the United States, such as in the attack on a Navy base.
I request 1 additional minute.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. LEVIN. The Feinstein amendment provides an appropriate signal to
Congress that in an authorizing context they should be aware of
detention authority issues. Therefore, I intend to vote for the
Feinstein amendment.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from New Hampshire.
Ms. AYOTTE. Mr. President, may I ask how much time remains on our
side and on the other side?
The ACTING PRESIDENT pro tempore. There is 17 minutes remaining.
Ms. AYOTTE. There is 17 minutes remaining in opposition?
The ACTING PRESIDENT pro tempore. Yes.
Ms. AYOTTE. Mr. President, I rise to agree with my colleague Senator
Levin, the chairman of the Armed Services Committee, in his
interpretation of the Hamdi decision with regard to the review of the
current amendment pending before us. The Feinstein amendment includes
different language than the amendment that was brought forward and
defeated in this body last year. The language says in 2(b)(1) that an
authorization to use military force, a declaration of war, or any
similar authority, shall not authorize the detention without charge or
trial of a citizen or lawful permanent resident of the United States,
apprehended in the United States, unless an act of Congress expressly
authorizes such detention.
I do view, as does my colleague from Michigan, Senator Levin, the
Hamdi decision that was decided before our U.S. Supreme Court as
rendering an opinion that the current authorization for the use of
military force that is in effect for our country gives explicit
congressional authority for the detention of individuals such as in the
case of Hamdi. He was an American citizen engaged in the battle against
our country and would fall underneath the authorization for military
force. In the Hamdi decision, the Court said that the AUMF, which has
currently been approved by Congress, having the full force and effect
of law, gives explicit congressional authorization for such detention.

I too believe, as Senator Levin has said, under that authorization,
the Hamdi decision would be interpreted similarly if an individual who
was a covered individual--a member who was covered by the authorization
for military force but was nevertheless a United States citizen--was
caught here committing an act of terrorism in this country. Our Supreme
Court has already interpreted that in Hamdi in such a way. I wanted to
add my support for his interpretation of the current Feinstein language
in that way.
I wish also to say in response to the arguments of some of my
colleagues that if the argument that is being made is this, that if you
are an American citizen who is captured in this country committing an
act of terrorism against our country and collaborating with al-Qaida,
committing belligerent acts in this country, then you should be held
under the law of war. If you are not, then we will have to give you
Miranda rights. We will have to tell you you have the right to remain
silent.
Let me remind you, in those situations, can you imagine if an
American citizen had been one of the collaborators of 9/11, would we
want to tell a member of someone who had committed an act like 9/11
against us--an act of war against this country--the first thing you
hear is you have the right to be silent? Our goal is we have to be
there to gather intelligence to see if there is another attack coming.
Is it coming to the Pentagon, is it coming to the White House, is it
coming to that second tower? Then we can protect American lives.
That is the difference between war and common crime. That is an
important distinction that has been recognized long before--with all
respect to my colleague from Kentucky--in World War II in In Re:
Quirin. Our U.S. Supreme Court in World War II recognized this
authority, the difference between the law of war. In that case an
American citizen who collaborated with the Nazis was held under the law
of war because our country was at war.
I would also wish to point out that this would only cover under the
current law authorized by this Congress. It would not apply to someone
who is holding ammunition or someone who is paying with cash. It only
applies to a person who has planned, authorized, committed, or aided
the terrorist attack that occurred on 9/11 or harbored those
responsible for the attacks, or a person who has a part or
substantially supported al-Qaida, the Taliban, or associated forces
that are engaged in hostilities against the United States or its
coalition partner, including any person who has committed a belligerent
act or directly supported such hostilities in aid of enemy forces
against our country.
That is very different than some of the examples that were cited
here. It is

[[Page S7186]]

called being a member of al-Qaida, being involved in September 11,
being a member of the Taliban and committing belligerent acts against
this country. That is terrorism.
Let me point out what I think is the most absurd distinction of all.
This is Anwar al-Awlaki. He is someone who is a U.S. citizen. He is
someone who was an influential leader in al-Qaida in the Arabian
Peninsula. He advocated for violent jihad. He was involved in a dozen
terror investigations. He was alleged to be involved in killing
Americans and collaborating to kill our allies. On September 30, 2011,
it was reported that al-Awlaki was killed by the CIA in a drone strike
in Yemen. Yet it is being interpreted, as we have heard by some of my
colleagues represented here, if the Feinstein amendment were
interpreted the way they have interpreted, if al-Awlaki made it to
America to commit these terrorist acts, he gets his Miranda rights. He
gets all his rights here. But yet if he is in Yemen to do these acts,
to try to kill Americans and our allies, then we can use a drone attack
to him. But if he makes it to America--which, by the way, the
terrorists want to make it to America; 9/11 is Exhibit A of that--why
do we want to be in a position to read them their Miranda rights, tell
them you have the right to remain silent? Our priority there has to be
protecting American lives. That is the distinction between the law of
war and a common criminal in this country.
By the way, there are protections under the law. It is the right of
habeas corpus where you do have a right to challenge your detention
before the Federal court through appeals with counsel. That is
certainly a protection that we have respected in this country for a
long time.
Mr. President, I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from South Carolina.
Mr. GRAHAM. Mr. President, I would like to inform the body that I
think Senator Levin's understanding and reasoning is incredibly sound.
We have actually been talking about this for a couple of days. And in
light of the Hamdi decision and just plain old common sense, I will
support the Feinstein amendment.
I will be the first to say that if we are attacked by the Iranians
tomorrow or some other group, we have an authorization to use force.
Senator Levin and I will be the first to say in that authorization that
it will provide that if an American citizen joins the Iranians in a war
against America, they can be detained under the law of war.
Now, you can vote however you like. I know how I will vote. But this
has already gone up to the Supreme Court. And if I can build on what
Senator Levin said as to the logic of the Court and I think the logic
of our position, let's get us back to the United States. I don't think
anybody in their right mind would say the United States is not part of
the battlefield in the war on terror. I would suggest that of all the
places the enemy wants to hit us, they want to hit us here at home the
most. Their goal is to kill us here. They will kill us in Libya, they
will kill us in Afghanistan, they will attack our consulates, they will
kill our soldiers, they will blow up our embassies, they will hit us
all over the world, but don't be misled--they want to hit us here.
Remember 9/11? I do. I am sure you all do.
You know what. The only reason we haven't had another 9/11 is we have
been fighting these bastards over there, where we have been getting
good intelligence. It took a couple of years before any of the people
held at Guantanamo Bay told us what was going on, but we found out
about bin Laden--and not because we tortured people but because we put
the intelligence puzzle together over time by holding people under the
law of war and gathering good intelligence. That is how we got bin
Laden. So bin Laden is dead, but the war is not over. I wish it were.
Now, the homeland. If there is a planned attack on a Navy vessel or a
military installation, I think the point Senator Levin was making is
that we have already authorized the use of force to protect the country
against the Taliban and al-Qaida; is that right?
Mr. LEVIN. That is my opinion, and that is the fundamental core
ruling in the Hamdi case. Now, we have to be accurate. Hamdi applied
circumstances to citizens that were captured in Afghanistan, but the
reason they use led them to conclude there was an explicit--explicit--
authorization to detain those citizens even though they are American
citizens. Their argument was that capture and detention was inherent,
in their words--so fundamental--to capture and detain as such is an
accepted incident to war as to be an exercise of the necessary and
appropriate force which Congress authorized the President to use.
So in my analogy, if a boatload full of al-Qaida, including an
American citizen, comes to a Navy base and attacks that base and is
captured by those sailors, that is surely an incident of war, and I
believe the capture and detention of those al-Qaida terrorists would be
the exercise of necessary and appropriate force which we authorized the
President to use in the authorization for military force.
Mr. GRAHAM. I want to build on that just to make sure we understand
about a potential attack on a Navy base here at home. No one is
suggesting the military could not use force against an al-Qaida attack
here at home. The Hamdi case was an American citizen captured in
Afghanistan. I hope we are not trying to create a picture that somehow
America is a place where our own military cannot fire a shot in defense
of their ships or our country.
Let's say we have some ships up there in Virginia and we have a
boatload of al-Qaida types trying to ram the ship. Does the Senator
agree with me that our military can use force to defend us here at home
against al-Qaida?
Mr. LEVIN. That is correct.
Mr. GRAHAM. So if our military is authorized to use force, they do
not have to call the FBI or the Virginia State Police to shoot. They
can shoot against an enemy themselves coming at them in America.
Mr. LEVIN. Coming into America and attacking us on a Navy base or----
Mr. GRAHAM. Right. Because we are not fighting a crime. We don't have
to disarm our military and call the local cops and say: Would you
please shoot these people before they get here? No. Our guys are going
to shoot you. If you are an American citizen asked to get in a boat and
asked to attack a military ship or installation in the United States,
we are going to shoot you, and if we wound you, we are going to capture
you. And here is what we are going to do to you as an incident of using
force. The Supreme Court has said that when you authorize the use of
force, it makes no sense to give that authorization if you don't have
the power to detain because the worst thing you can do to the American
military is to make them kill everybody and capture no one or let the
other guys go. So kill-them-all is not good policy, and it is a bad
spot to put your military in. And the option shouldn't be to kill them
all or let them all go; the option should be to kill where you have to
and, if you can, capture. Does the Senator agree with that?
Mr. LEVIN. I do.
Mr. GRAHAM. And our military can fire the shots because of the use of
force to defend the homeland and to defend themselves here at home. And
the Supreme Court says that once you authorize the ability to use
force, it just follows, as night follows day, that detention is part of
the ability to use force because, ladies and gentlemen, if it is not,
you have turned our military into murderers because you are not
supposed to shoot somebody and leave them wounded in the water, and you
shouldn't watch them swim away. You capture them and interrogate them
under the law of war. Isn't that what Hamdi is about and the point they
are trying to make?
Mr. LEVIN. It is. As part of that point, it cites the Quirin case,
which says:

Citizenship in the United States of an enemy belligerent
does not relieve him from the consequences of a belligerency
which is unlawful because in violation of the law of war.

And here are the key words:

Citizens who associate themselves with the military arm of
an enemy government, and with its aid, guidance and direction
enter this country bent on hostile acts, are enemy
belligerents within the meaning of the Hague Convention.

Mr. GRAHAM. I will read another quote from Hamdi.

There is no bar to this Nation's holding one of its own
citizens as an enemy combatant.

[[Page S7187]]

Hamdi's detention could last for the rest of his life because the law
of war detention can last for the duration of the relevant conflict.
Here is what we are trying to do. We are trying to create a system
consistent with the Hamdi decision, and quite frankly, ladies and
gentlemen, what I am trying to avoid is the criminal paradigm because I
know the difference between criminal law and law of war. Under the law
of war, you can detain somebody for interrogation to find out what the
enemy is up to if you believe that person to be part of the enemy.
And let me tell my friends, I do not want to take our criminal
justice system and bastardize it. During the Bush years when we had the
military commission rollout, they had a provision that in a military
commission trial, the military jury could be given classified
information but not share it with the defendant. I said: No. If a trial
means anything, it means the right to confront those witnesses against
you. I jealously guard that. The worst al-Qaida member in the world,
when they go on trial in military commissions, will have a lawyer, a
right to appeal to our Supreme Court, and will be able to confront
every witness against them. An American citizen who joins al-Qaida or
the Taliban will be tried in Federal court because we took military
commissions off the table. That is the trial.
Here is the main point: If you are allowing our military to use force
to protect themselves, as Hamdi says, it naturally follows that with
the use of force comes the lawful detention. And that is why I will be
voting for Feinstein. I think that is where most Americans are. If
there is any confusion, we can talk about this in conference.
But, Senator Levin, I want to thank you for--since 2006--working with
me and against me. You know, our dispute about what would be an active
substitute for habeas went to the Supreme Court, and you won 5 to 4.
Damn those Justices, but that is the way it goes. And you know what.
There were some Republicans and Democrats who disagreed with me and you
both. But I respect an independent judiciary, and I know Justice
Roberts kind of got some people mad at him because of the ObamaCare
decision, but that is the way it goes. That is the way these old judges
are. I just really appreciate an independent judiciary.
I just want to say that after that decision in 2006 or 2007, how much
of a pleasure it has been to work with you and others to try to find a
way to achieve a balance in a war that is hard to understand. There is
no capital to conquer, no airplanes to shoot down in terms of their jet
fighters, there is no navy to sink, but they use boats to attack us and
they use private planes to kill us. At the end of the day, we are at
war. The outcome does matter, and I want to win this war. I know
everybody in this body wants to win this war. But I want to live within
our values.
So I will work with Senator Levin and Senator McCain and say that
even though we are fighting the worst people on the planet, count me
out when it comes to waterboarding. I remember when people on my side
would say--and I understand them very well--why do you care about what
we do to these people? They will cut our heads off.
Because we are Americans. It is not necessary to go down that road to
win the war. And quite frankly, ladies and gentlemen, the opposite is
true. You can't win this war if you don't realize you are in a war. We
are not fighting common crime, we are fighting a vicious enemy. And we
can do it within our values. We can do it within due process consistent
with the law of war and, when we get in that criminal arena, consistent
with criminal law.
As much as I disagree with this President, I will not deny him the
ability that every Commander in Chief has had for decades as an option,
if he chooses to use it. And if you want to go down the criminal road,
we can, but we need the option. As much as I dislike President Obama, I
am not going to use as a reason to change the law of war that Barack
Obama may put some people in jail who disagree with him, and I am not
going to buy into some of the rhetoric coming out of our side that a
habeas corpus independent judiciary view means nothing if Obama
appointed the judge. We are better than that.
I stand ready to vote for Feinstein, I stand ready to work with my
colleagues to continue to find a way to fight and win a war within our
values, the outcome of which will matter not only to us but those who
follow.
God bless every person on the front line who is risking their life at
home and abroad. And here is what you have as a promise between Senator
Levin and myself and many others: We are going to give you the tools to
keep us safe and to keep your comrades safe. We are not going to do
things in this war that made no sense in other wars. You need our help,
you need our prayers, and you need the tools to fight and win this war,
and we will give you those tools.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Kentucky.
Mr. PAUL. Mr. President, even though my colleagues sometimes appear
to have disdain for the trial by jury, it now appears they are
supporting the right to trial by jury, and so I congratulate them on
their conversion. However, I think they are still a little confused on
Hamdi.
Hamdi had to do with a citizen fighting overseas and nothing to do
with a citizen here. I have great confidence that the Supreme Court,
given a ruling on the right to trial by jury, will affirm the right to
trial by jury whether they were appointed by Ronald Reagan or President
Obama. So we will have that fight on another day.
I will say, though, that our oath of office says we will defend the
Constitution against enemies foreign and domestic.
I met with cadets this week and they asked me, What is the freedom we
fight for? The freedom we fight for is the Bill of Rights, is the
Constitution. If we have careless disregard for the Constitution, what
are we fighting for?
I will tell you, since I know the record of this debate will be
widely read, I want to make formal objection to the crazy bastard
standard. I don't think if we are going to have a crazy bastard
standard that we shouldn't have a right to trial by jury. Because if we
are going to lock up all the crazy bastards, for goodness sake, would
you not want, if you are a crazy bastard, to have a right to trial by
jury?
I think this is a very serious debate and should not be made
frivolous. This is an ancient right that we have defended for 800
years. To say that habeas is due process is absurd. It is the beginning
of due process. If you don't have a right to trial by jury, you do not
have due process. You do not have a constitution. What are you fighting
against and for if you throw the Constitution out, if you throw the
sixth amendment out? It is in the body of our Constitution. It is in
the Bill of Rights. It is in every Constitution in the United States.
Trial by jury has been a longstanding and ancient and noble right.
Let's not scrap it now.
I will accept victory today. I hope we will win victory and reaffirm
the right to trial by jury. But let's don't play any games with any
aspect and believe that any Supreme Court in the United States, whether
appointed by Republican or Democrat, is going to say that an American
citizen does not have a right to trial by jury.
The ACTING PRESIDENT pro tempore. The Senator from California.
Mrs. FEINSTEIN. If Mr. President could tell me what the respective
times for either side in this amendment are?
The ACTING PRESIDENT pro tempore. The opposition time has expired.
Proponents have 6 minutes remaining.
Mr. LEVIN. If the Senator would yield.
Mrs. FEINSTEIN. I will.
The ACTING PRESIDENT pro tempore. The Senator from Michigan.
Mr. LEVIN. We are significantly over our time, I believe. We would be
happy to accommodate Senator Feinstein or others.
Mrs. FEINSTEIN. I just wanted to thank everybody. I think we had a
good debate. I think we ended in a good place. I am very hopeful that
the body will pass this now by a large majority. So I hope we are
successful tonight in achieving something that hasn't been achieved for
decades.
I want to thank everybody, our cosponsors, the chairman of the
committee, and Senator Graham for the debate.
The ACTING PRESIDENT pro tempore. The Senator from Alabama.
Mr. SESSIONS. Mr. President, that was a good debate. Senator
Feinstein

[[Page S7188]]

is always gracious and alert and smart in her arguments.
I want to say one thing that is not in doubt. Some of my colleagues--
I think Senator Paul and others--have suggested that somehow the law of
the United States has been changed in recent years, and we need the
Feinstein amendment to fix it and restore the constitutional rights we
are all entitled to.
What I want to say, without any doubt and I think any fear of real
contradiction, is this amendment alters the history of the United
States, alters the long-term understanding of the rules of war, and
places American citizens in a position where they cannot be treated
effectively as an enemy of the state and detained, and actually be in a
position to be released to continue their war against the United
States. I think that is a bad policy.
I agree with Senators Levin, Ayotte, and others who share their view.
I am not quite able to understand--and I am not sure Senator Feinstein
does--that this therefore establishes through understandings of Hamdi
and the Supreme Court decision that therefore we can vote for it. I
don't think it is the right step. I don't think we should alter the
historical position of the United States that those who are at war with
the United States are not treated as criminals. Southerners who were
captured by Lincoln weren't released. When Washington dealt with the
Whiskey Rebellion, he sent out Alexander Hamilton. They weren't given
Miranda rights. They went out there to stop the rebellion. They were
citizens. That is the way I feel about it.

Amendment No. 3009

Mr. SESSIONS. Mr. President, I ask unanimous consent to set aside the
pending business and call up amendment No. 3009.
The ACTING PRESIDENT pro tempore. Is there objection?
Mr. LEVIN. Reserving the right to object, I am wondering if the
Senator from Alabama would repeat the request.
Mr. SESSIONS. I wish to set aside the pending amendment and call up
amendment No. 3009. I understand it would not be voted on tonight, but
I wish to get it pending.
Mr. LEVIN. I wonder if the Senator would speak on the amendment,
though, without calling up the amendment.
Mr. SESSIONS. I would be glad to, if the chairman thinks it won't be
a problem calling it up at a later date.
Mr. LEVIN. I hope not. I don't even know what is in the amendment.
But we are trying to accommodate the process where everybody could have
a chance, hopefully, to call up their amendments. We have to do it in
order where we know what is in the amendment, we have to have our
staffs have an opportunity to make sure we understand what is in the
amendment. We are working on this amendment. So I have no objection
whatever to the Senator talking about the amendment. We are working
hard on the amendment to get it in order.
Mr. SESSIONS. It has been conveyed to the Senator's staff.
Mr. LEVIN. And we are working on it. But if the Senator could just
not proceed to call it up but speak to it, we would appreciate it.
Mr. SESSIONS. Mr. President, I withdraw the offer of calling up that
amendment and my request to set aside the pending amendment, but I
would share some thoughts about it.

The amendment deals with the ability of the Congress of the United
States to review any bilateral security agreement with Afghanistan.
Congress was not consulted regarding the framework or the substance
of the Enduring Strategic Partnership Agreement between the United
States of America and the Islamic Republic of Afghanistan that was
signed on May 1, 2012. This agreement commits the United States to
establishing a long-term bilateral security agreement with Afghanistan.
In the past, Congress has been consulted and has sometimes provided its
advice and consent to the ratification of these type agreements.
The strategic partnership agreement, already signed by President
Obama, is a legally binding agreement that committed the United States
to various policies including those related to the drawdown of U.S.
forces in Afghanistan. It is broad and vague, and any further
agreements entered into by the President that are based upon it should
be reviewed by the appropriate congressional committees.
The President and the Secretary of Defense have stated that the
United States continues to fight in Afghanistan to defeat al-Qaida.
While the authorization of military force authorizes the President to
use any means necessary to prevent any acts of terrorism against the
United States, his authority to enter into bilateral security
agreements with Afghanistan should be looked at and reviewed at least
by Congress.
The bilateral security agreement will supersede not only the
strategic partnership agreement--so this will be the bilateral security
agreement--but additional memoranda of understanding related to special
operations in Afghanistan and detainee transfers will be part of this
agreement. The issues addressed in the forthcoming bilateral security
agreement are too important not to require congressional review.
The amendment would require the President to submit any proposed
bilateral security agreement to the appropriate congressional
committees 30 days before entering into the agreement. This is not
unreasonable. Congress is exercising its role of oversight before the
President makes long-term commitments that have significant
ramifications from the size of forces that we commit to the legal
authority of our commanders. So this will be a final agreement that
will impact quite significantly the commitment--financially,
militarily, and in blood--the human support of our members.
There is a history behind these SOFA agreements. The Senate approved
the NATO Status of Forces Agreement. We actually voted on it and
approved it in advance. A formal treaty was used as an underlying
source of authority for a Status of Forces Agreement on seven different
occasions: Australia, Guatemala, Haiti, Honduras, Japan, Korea, and the
Philippines. Congress has voted and approved Status of Forces
Agreements three additional times: Marshall Islands, Micronesia, and
Palau.
I hope Senator Webb is able to come over tonight. He has raised his
concerns about this, and expressed concern in the Armed Services
Committee that the Afghani and the Iraqi Parliaments vote on the Status
of Forces Agreement, but our Congress is not voting on the Status of
Forces Agreement. Senator Webb is a cosponsor of this amendment. And
just to have that agreement, the full and complete agreement that
commits the United States to be fully reported to the Congress of the
United States I don't think is too much to ask. Right now, we don't
have any indication that would happen, and there is some opposition to
it. But why would that be a problem? Why would the administration not
want Congress to know what our commitments are and what we would be
expected to support?
I believe it is a good amendment. Hopefully we can get it moved
forward and maybe accepted; but, if not, by vote. I think we could
handle it. I don't think it should cause the objection that some see in
it. This does not require that the Congress have a right to vote to
reject the amendment or approve the amendment. It simply says the
agreement that is entered into, the SOFA, has to be produced promptly
to the Congress. I think that is a reasonable position, and I ask my
colleagues to support it.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Maryland.
Mr. CARDIN. Mr. President, I think it is time to explain amendment
No. 3025 that I hope I will be able to call up shortly, knowing full
well that our schedule might get difficult when these amendments are
brought up at a later point.
My amendment would strike section 341 of the fiscal year 2013
National Defense Authorization Act. It included language that would
arbitrarily require the Secretary of Defense to cut the civilian and
contractor workforce to achieve equal savings as they achieve from
planned reductions in the military personnel for fiscal year 2012
through 2017.
This provision does not consider the work requirements of the
Department nor the law that states:

The civilian personnel of the Department of Defense shall
be managed each fiscal year solely on the basis of and
consistent with (1)

[[Page S7189]]

the workload required to carry out the functions and
activities of the department.

What that means is that when we consider the number of civilian
personnel needed by the Department of Defense, we look at the mission
they need to accomplish and we look at the budget support. That is how
those decisions have been made.
My amendment would strike the current section 341 that is in the
committee draft and reaffirms the civilian manpower requirements by
stating the following: The Secretary of Defense, consistent with
longstanding law--which was expanded in a bipartisan effort in the
fiscal year 2012 NDAA bill--ensures that the civilian workforce is
sufficiently sized--a term copied from 10 USC 129a)--after taking into
account military strategy requirements and military endstrength.
The Comptroller General is required to report back to the Congress
whether the Department is compliant with the law.
I am pleased this amendment is cosponsored by Senators Akaka, Boxer,
Begich, Brown of Ohio, Durbin, Harkin, Leahy, Mikulski, McCaskill, and
Tester.
I might point out that there is no such provision included in the
House NDAA.
I would like to note what this amendment does not do. It would not
prevent the Department of Defense from downsizing the civilian
workforce. Indeed, according to the House Armed Services Committee, the
Department is already reducing its civilian workforce by over 10,000
positions in fiscal year 2012 alone. It would not treat service
contractors any differently than civilian employees.
The goal of this amendment is pretty simple. It would reaffirm the
law that prohibits DOD from managing its civilian workforce by
arbitrary constraints. That is what this provision that I am asking to
be stricken by my amendment would do. It would set caps and cuts.
Downsizing is inevitable but be consistent with the law. It should be
based on a workload analysis and the budgets that are provided through
the congressional process.
This would repudiate the notion that what happens in one department's
workforce automatically affects the other. The way the language came
out from the committee, regardless of the needs of our civilian
missions within the Department of Defense, its cut would be tied to the
military side and the contractors would also be affected. It should be
based upon their vision. It should be based upon their budget. There
should not be arbitrary provisions.
Proponents of section 341 would insist that the civilian workforce
should be automatically reduced by approximately 5 percent because the
Obama administration would reduce the military workforce by
approximately 5 percent. They are different missions, different
priorities; they need to be judged based upon their respective
priorities and missions.
Earlier today the administration released a Statement of
Administration Policy that clearly rejects the current section 341 of
the bill. I am quoting from the administration's statement of policy:

The Administration objects to section 341, which would
reduce funding for the civilian and contractor workforce by a
rate that is at least equal to the percentage of funding
saved from the planned reductions of military personnel end
strength. This would require savings in civilian and contract
workforces in excess of $5 billion over the planned savings
through FY 2017. The Administration believes the size of the
civilian workforce should be determined based on workload and
funding, not on arbitrary comparisons to the military. To
comply with this legislation, the Department would need to
significantly divest workload and impose workforce caps.

What the committee did--I don't know if it was intentional or not--
what the committee did, they imposed their own sequestration order on
the civilian and contractor workforce within DOD. That makes no sense
whatsoever. Everyone here has been outspoken that it is wrong to do
these across-the-board cuts that have nothing to do with priority or
mission. My amendment would strike that provision from the committee
bill. It would substitute instead law that requires that the workforce
be determined by mission and budget. It does not at all prevent us from
downsizing. We all know we have to downsize, and the budget downsizes
the civilian and contractor workforce. But we should not be setting
arbitrary caps within what we have already done through the review and
budget process.
I am pleased that this amendment is supported by many of the groups
directly impacted by the decisions here. When I have a chance to offer
this amendment, I will urge my colleagues to support the amendment so
we can correct this provision in the bill, which I think allows us to
comply with current law, protect the mission of the Department of
Defense, and establish priorities in the way we should, not by
arbitrary caps.
I yield the floor.

Amendment No. 3199

Mr. INHOFE. Mr. President, I have been attempting to contact the
primary author of amendment No. 3199, Senator Durbin. Let me first of
all ask unanimous consent that I be added, if I am not already, as
original cosponsor to the amendment No. 3199.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. INHOFE. Mr. President, I think it is interesting that this
amendment is coming up at this time. It is a matter of just a couple of
hours ago that we passed an amendment on this floor extending our
effort and policy against the LRA, the Lord's Resistance Army, and that
is Joseph Kony, the individual who for now over 20 years has been
abducting young people, training them, taking them up and forcing them
to go out and fight with the LRA. If they did not do it, they would
have to go home and murder their own family. It has been just horrible.
We are making great progress now. I spent a lot of time primarily in
Uganda where this all began, and it looks now as though we are getting
closer to doing that.
The reason I am interested in amendment No. 3199 by Senator Durbin
and am supporting it is because a very similar thing is going on right
now. I happen to have spent some time in the eastern part of the Congo,
where I have seen the rise of another individual, Colonel Makenga. He
is very much like Joseph Kony. In fact, he is training the young
people, young kids to be fighters. We all know about the effort out
there with what they call the rebel leader of M23. That is very similar
to what is happening up in Uganda. In fact, the Uganda effort and the
LRA effort were very prominent, actually, in eastern Congo, the same
place where this--and I suspected myself that there is a relationship
between the two efforts. So I strongly support that.
I want to say one thing, though. I have strong feelings about this,
and I want to get it on the record, and I would like to have my
comments placed in the Record at the time this amendment comes up for
consideration.
A lot of people were feeling that one of the problems with the M23
leaders came from Rwanda itself. At some time, they talked about
President Kagame, President Paul Kagame, as if there were a
relationship between this butcher over there, Colonel Makenga, and
President Kagame. There is no relationship whatsoever. In fact,
President Kagame rejects what this rebel leader is trying to do.
I had occasion to spend some time with Louise Mushikiwabo, who is the
Foreign Affairs Minister for the Republic of Rwanda. I was with her. I
have her picture right here. I was with her recently, and she gave us
the assurance that the President, President Paul Kagame, is just as
adamant about doing away with this rebel leader, Colonel Makenga, of
the M23 rebel movement. I am happy to join in with this. I wanted to
make sure I have my assurance in this that there is no relationship
between this rebel movement and the President of Rwanda.
I yield the floor. I see the author of this amendment is on the
floor.
The PRESIDING OFFICER (Mr. Whitehouse). The Senator from Illinois.
Mr. DURBIN. I thank my colleague from Oklahoma. Many of my other
colleagues may not be aware of his interest and dedication to the
continent of Africa. He has traveled there probably as much if not more
than any other Member of the Senate. It has been a great opportunity,
experience, and education for me to travel there over the years, but my
few visits do not come close to the commitment that has been made by
the Senator from Oklahoma. I

[[Page S7190]]

greatly respect his knowledge of the area and appreciate his
cosponsorship of the amendment which is pending which we hope will be
cleared.
I have been to eastern Congo twice, 2005 and 2010--Goma. Goma is one
of those places you will never forget once you visit them. This is one
of the poorest places on Earth. You see the poverty in every direction.
You see the disease. You see the victims of war in every direction
because there has been an ongoing war in this part of the world which
literally rivals some of the great wars of our history in terms of the
innocent people who have been killed, maimed, raped, and have suffered
displacement. On top of all of these things in Goma is an active
volcano that erupted not that many years ago, covering this poor,
godforsaken part of the world with lava. It troubles me to go there and
see the suffering that goes on every day.
The ongoing war that is taking place--the rebel groups, M23--have now
taken over sections of eastern Congo. Eastern Congo is known as the
rape capital of the world. One of the tactics of war is to rape the
women of any age in front of their families and then force these women,
many times, to kill other members of the family who have witnessed it.
They estimate that regional war and rape leave an estimated 1,000 or
more women assaulted every day in the Congo. Twelve percent of all
Congolese women have been victimized by this. I met some in a hospital
called Heal Africa.
There is a population of 8 million people, and Heal Africa is the
only hospital in the area that offers any antiretroviral drugs for
children with HIV and surgery to repair the bodies of these traumatized
women. Heal Africa's cofounder, Lyn Lusi, passed away this past March.
What a saint she was. While her death was a terrible loss, Heal Africa
and other organizations continue to carry on her vision, including many
American medical students who go there to volunteer. God bless them.
There was a delegation from Purdue University there when I visited, and
many others have followed.
The Rwandan genocide has been the root cause of many of the problems,
as well as a weak government in Congo. Eastern Congo is virtually on
its own, with very little governance or protection, and criminals run
rampant.
Dr. Denis Mukwege runs another hospital in Bukavu, the capital of
South Kivu province.
Panzi Hospital is a one-story building on a tree-lined, dirt road. It
receives about 10 new rape cases a day, every day. And that is only the
tip of the iceberg, since most rape survivors never seek treatment.
The victims range in age from 2 to 80 years old. Dr. Mukwege says
they arrive ``broken, waiting for death, hiding their faces.''
Last month armed gunmen attacked this genuine hero at his home,
murdering his guard and shooting at him, likely because of a strong
speech he gave at the United Nations last month, denouncing mass rape
and impunity in Congo.
The United Nations has a 20,000 member peacekeeping force in eastern
Congo to help the region's violence--but the area is still very
fragile, awash in weapons, warlords, and competing regional interests.
It is also rich in valuable minerals that are found in our everyday
electronic and other products.
It has been said that the Congo war contains ``wars within wars''--
and that is true. But fueling much of the violence is a bloody contest
for control of these vast mineral resources.
In the last Congress I was proud to join in a bipartisan effort with
Senators Brownback, Feingold, Dodd, Johnson, and others to try to
prevent the country's mineral wealth from fueling the region's horrific
violence.
The bill we eventually passed included a simple transparency
requirement--if a company registered in the United States uses any of a
small list of key minerals from Congo or its neighbors, then it has to
disclose in its SEC filings what, if anything, it is doing to prevent
the mineral purchases from funding the region's violence.
I was happy to see that in August, the Securities and Exchange
Commission approved a rule based on this legislation. It is a sound and
fair rule, so you can imagine my disappointment that the National
Association of Manufactures has already started a legal challenge to
this modest provision. I appeal to the conscience of the CEOs of these
companies in America to do their part to help end this violence that is
going on in Congo. Please stop fighting this simple provision so we can
trace these minerals and stop the exploitation of these poor people.

Last week a well-armed group of rebels calling themselves M23 overran
and occupied the key city of Goma in eastern Congo. These rebels have
threatened to continue their incursions and set a course for Kinshasa,
Congo's capital in the west. They have created a new wave of fleeing
refugees in need of clean water, food, and shelter. This move was
condemned by the U.N. Security Council, which expressed deep concerns
about M23. These rebels are known for brutal violence. This is a
photograph of a little baby being passed into a truck hopefully, to
safety--a victim of the violence going on by the M23 rebels who have
taken over this part of the Congo. Some of my colleagues may have seen
this tragic photo in Monday's New York Times. This baby is being
hoisted into a packed truck while his family is trying to get out. Even
more troubling is that there is considerable evidence that these rebels
have and are continuing to receive strategic and materiel support from
neighboring Rwanda, just as Senator Inhofe mentioned on the Senate
floor, and potentially from Uganda as well. News reports indicate that
the M23 rebels have access to night vision goggles and other equipment
they never had before, indicative of significant assistance from the
well-supplied Rwandan Army. We have seen reports that the Rwandan Army
crossed the border working side-by-side with these rebels.
A Congolese regional governor, Julien Paluku, stated that the Rwandan
Army entered his province behind the M23 rebels and forced the
Congolese military to flee. Human Rights Watch has corroborated these
reports and has independently confirmed the Rwandan Government's role.
There was some hope that the leaders of Congo, Rwanda, and Uganda
would meet last week and find a way to end this violence. Yet it didn't
occur. It appears Rwandan President Kagame did not attend as he had
once promised.
Rwanda is a friend of the United States. I have visited President
Kagame and I have been to Rwanda. It has certainly been through its
share of suffering during the genocide in 1994. It helped in
peacekeeping efforts in Sudan. With that kind of leadership, though,
comes an important responsibility. No one in Rwanda or any country will
benefit from a collapsed Congo in which the rebels hold large swaths of
territory and these impoverished people at gunpoint. I urge Rwanda to
rein in the M23 rebels and work with its regional neighbors to bring
stability to eastern Congo.
To make sure this happens, Senators Boozman, Boxer, Coons--let me get
the entire list because I am proud they have joined me in this effort--
Brown of Ohio, Cardin, and now Senator Inhofe have joined me in filing
an amendment to this Defense authorization bill that would impose an
asset freeze and visa ban on any outside parties who are providing
support to the M23 rebels, an amendment I urge my friends, Senators
Levin and McCain, to accept.
I hope such sanctions will not be needed and that wiser heads
prevail. The people of eastern Congo have suffered long enough.
I know Senator Levin is working for the approval of this amendment. I
sincerely hope it can be done before the end of the evening. I am going
to at this point yield the floor in the hopes that we can bring this to
a positive conclusion.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. INHOFE. Mr. President, let me compliment Senator Durbin for his
concern for this activity that is going on there. I wish to clarify the
record because I have had personal conversations with the President and
with many members of the staff and good friends over there.
Africa is a little bit different than other areas. Sometimes there
can be rebel groups within a country that are doing something people
attribute to a country. In this case, that isn't true with Rwanda. In
the case of Rwanda, if they say that some of the Rwandan

[[Page S7191]]

military was supporting the M23 movement, that would not be with the
authority or the knowledge even of President Kagame himself and his
administration. I want to make sure to clarify that.
Also, I want to mention, the area of Goma that the Senator from
Illinois is talking about is something that a lot of people are not--
they don't understand what that is. Goma is in the far eastern part of
Congo. The capital is Kinshasa. It is further from Kinshasa to Goma
than it is, of course, all the way across this country twice. So we are
talking about an area where there is not much control.
It happens that Robert Ruberwa, Parliamentarian Ruberwa, is the one
who is responsible for that area. The way it is working there, they
don't have any control over there. This is a rebel movement.
The reason I say I believe, and I have always believed, that there is
a relationship between the LRA and the M23 is because I was over there
when the LRA had just left. We were hoping to be there at the same
time. It was a matter of a couple of days before. They went north up
through the Central African Republic and up through south Sudan, over
to Uganda, where they originally started. That is the same area and the
same motive, the same way of operating as M23.
They are abducting little kids. People don't realize this. They
abduct little kids and teach them how to use weapons and make them go
back to their villages, murder their parents and their siblings, and if
they don't do that, they cut their noses off and their ears off. We
have pictures. We have seen this happen.
I am pleased that we have adopted as a policy of this country to
intervene.
Let's keep in mind, we have a war against terrorists. These are
terrorists and this has spread throughout--starting actually more in
the Horn of Africa, Djibouti, and then moving down into the continent.
This is the type of terrorism that comes from it. I consider this as a
part of that war.
But I do want to emphasize that the accusation that Rwanda and their
leadership, specifically President Kagame--let's remember what happened
with Paul Kagame. He was the one back during the genocide of 1994 who
was able to come in and pull everybody together. A lot of the rebels
went to the west out in Rwanda and went into the eastern part of Congo.
We know that is right. But they have been rejected. There is no
accusation that there is even a relationship there. But I hope people
realize we do have some great Presidents throughout the continent of
Africa, and he is one of them. It is a difficult situation there. It is
one on which we need to focus our attention.
By the way, I would say I don't believe it has been cleared on our
side. It would be with me, but it hasn't happened yet, and we hope to
work in that direction so we can take this up.
I yield the floor.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. I ask unanimous consent that the filing deadline for
first-degree amendments to S. 3254, the Department of Defense
authorization bill, be set at 9:45 tonight.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. INHOFE. Mr. President, I note the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. LEVIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. Mr. President, I understand that amendment No. 3199, an
amendment of Senators Durbin and Inhofe, has now been cleared on both
sides. So I ask unanimous consent that this amendment now be called up
and considered.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will report.
The bill clerk read as follows:

The Senator from Illinois [Mr. Durbin] proposes an
amendment numbered 3199.

Mr. LEVIN. I ask unanimous consent that the reading of the amendment
be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

(Purpose: To impose sanctions with respect to persons that provide
significant financial, material, or technological support to the rebel
group known as M23 operating in the Democratic Republic of the Congo)

At the end of subtitle D of title XII, add the following:

SEC. 1246. IMPOSITION OF SANCTIONS WITH RESPECT TO SUPPORT
FOR THE REBEL GROUP KNOWN AS M23.

(a) Blocking of Assets.--The Secretary of the Treasury
shall, pursuant to the International Emergency Economic
Powers Act (50 U.S.C. 1701 et seq.) and Executive Order 13413
(74 Fed. Reg. 64105; relating to blocking property of certain
persons contributing to the conflict in the Democratic
Republic of the Congo), block and prohibit all transactions
in all property and interests in property of a person
described in subsection (c) if such property and interests in
property are in the United States, come within the United
States, or are or come within the possession or control of a
United States person.
(b) Visa Ban.--The Secretary of State shall deny a visa to,
and the Secretary of Homeland Security shall exclude from the
United States, any alien who is a person described in
subsection (c).
(c) Persons Described.--A person described in this
subsection is a person that the President determines
provides, on or after the date of the enactment of this Act,
significant financial, material, or technological support to
M23.
(d) Waiver.--The President may waive the application of
this section with respect to a person if the President
determines and reports to the appropriate congressional
committees that the waiver is in the national interest of the
United States.
(e) Termination of Sanctions.--The President may terminate
sanctions imposed under this section with respect to a person
on and after the date on which the President determines and
reports to the appropriate congressional committees that the
person has terminated the provision of significant financial,
material, and technological support to M23.
(f) Termination of Section.--This section shall terminate
on the date on which the President determines that M23 is no
longer a significant threat to peace and security in the
Democratic Republic of the Congo.
(g) Definitions.--In this section:
(1) Appropriate congressional committees.--The term
``appropriate congressional committees'' means--
(A) the Committee on Banking, Housing, and Urban Affairs
and the Committee on Foreign Relations of the Senate; and
(B) the Committee on Financial Services and the Committee
on Foreign Affairs of the House of Representatives.
(2) M23.--The term ``M23'' refers to the rebel group known
as M23 operating in the Democratic Republic of the Congo that
derives its name from the March 23, 2009, agreement between
the Government of the Democratic Republic of the Congo and
the National Congress for the Defense of the People (or any
successor group).
(3) United states person.--The term ``United States
person'' means--
(A) an individual who is a United States citizen or an
alien lawfully admitted for permanent residence to the United
States; or
(B) an entity organized under the laws of the United States
or of any jurisdiction within the United States.
Mr. LEVIN. I know of no further debate.
The PRESIDING OFFICER. Is there further debate? If not, the question
is on agreeing to the amendment.
The amendment (No. 3199) was agreed to.
Mr. LEVIN. Mr. President, I move to reconsider the vote.
Mr. INHOFE. I move to lay that motion on the table.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. Mr. President, let me thank Senators Durbin and Inhofe for
again focusing on a critical issue. I know Africa seems far away and
some of these events seem far away, but they have tried to bring them
home to us and, hopefully, we will be listening, all of us, to what
they have accomplished and what they have done tonight. I hope the
American people realize the importance of this issue and that the
message will be clear to those who are violating civil rights so
horrendously.
I yield the floor and note the absence of a quorum.
The PRESIDING OFFICER (Mr. Brown of Ohio). The clerk will call the
roll.
The bill clerk proceeded to call the roll.
Mr. LEVIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Brown of Ohio). Without objection, it is
so ordered.

Vote on Amendment No. 3245

Under the previous order, the question is on agreeing to amendment
No.

[[Page S7192]]

3245 offered by the Senator from New Hampshire.
Mr. LEVIN. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
The bill clerk called the roll.
Mr. DURBIN. I announce that the Senator from West Virginia (Mr.
Rockefeller) and the Senator from Oregon (Mr. Wyden) are necessarily
absent.
Mr. KYL. The following Senators are necessarily absent: the Senator
from South Carolina (Mr. DeMint), the Senator from Nevada (Mr. Heller),
and the Senator from Illinois (Mr. Kirk).
The PRESIDING OFFICER (Mr. Blumenthal). Are there any other Senators
in the Chamber desiring to vote?
The result was announced--yeas 54, nays 41, as follows:

[Rollcall Vote No. 212 Leg.]

YEAS--54

Alexander
Ayotte
Barrasso
Baucus
Blunt
Boozman
Brown (MA)
Burr
Chambliss
Coats
Coburn
Cochran
Collins
Corker
Cornyn
Crapo
Enzi
Graham
Grassley
Hagan
Hatch
Hoeven
Hutchison
Inhofe
Inouye
Isakson
Johanns
Johnson (WI)
Kyl
Landrieu
Lee
Lieberman
Lugar
Manchin
McCain
McConnell
Moran
Murkowski
Nelson (NE)
Paul
Portman
Pryor
Risch
Roberts
Rubio
Sessions
Shelby
Snowe
Stabenow
Thune
Toomey
Vitter
Webb
Wicker

NAYS--41

Akaka
Begich
Bennet
Bingaman
Blumenthal
Boxer
Brown (OH)
Cantwell
Cardin
Carper
Casey
Conrad
Coons
Durbin
Feinstein
Franken
Gillibrand
Harkin
Johnson (SD)
Kerry
Klobuchar
Kohl
Lautenberg
Leahy
Levin
McCaskill
Menendez
Merkley
Mikulski
Murray
Nelson (FL)
Reed
Reid
Sanders
Schumer
Shaheen
Tester
Udall (CO)
Udall (NM)
Warner
Whitehouse

NOT VOTING--5

DeMint
Heller
Kirk
Rockefeller
Wyden
The amendment (No. 3245) was agreed to.
Mr. REID. Mr. President, I move to reconsider the vote.
Ms. BOXER. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. CORNYN. Mr. President, tonight the Senate will vote on an
amendment offered by the senior Senator from California that affects
the lawful authority of the U.S. military to detain enemy belligerents
during wartime. This issue is necessarily complicated and difficult
because the universe of detainees at issue includes U.S. citizens who
are captured on American soil while taking up arms against their fellow
citizens in the name of a foreign power or global terrorist
organization.
This is not an abstract issue. The U.S. homeland remains a target for
al Qaida terrorists, who hide among civilian populations and have
successfully recruited our fellow citizens to carry out acts of
terrorism.
Some of my colleagues contend that U.S. citizens forfeit their
citizenship when they commit terrorist acts or acts of war against
their fellow citizens but that they nevertheless should be tried and
treated as common criminals with all of the attendant constitutional
rights. Others believe that U.S. citizen-enemy combatants forfeit their
constitutional rights altogether and can be detained indefinitely by
the military without any judicial review.
I respectfully reject both of these positions. It is entirely
consistent with both the Constitution and laws of war for the U.S.
military to detain such individuals pursuant to a force authorization
or war resolution until the cessation of hostilities. To be sure, there
is historical precedent for this proposition. What is critical to
remember and too often seems to be omitted from this debate is that a
U.S. citizen or any other person lawfully inside our nation's borders--
who is detained by our military does not forfeit their rights to habeas
corpus review in a Federal court. In other words, they retain the
constitutional right to challenge their detention before an impartial
civilian judge.
The Supreme Court has noted that the ``writ of habeas corpus is the
fundamental instrument for safeguarding individual freedom against
arbitrary and lawless state action.'' And, in fact, a citizen's right
to habeas corpus extends all of the way to review by the U.S. Supreme
Court, the highest Court in the land.
In closing, what I find so confounding about this debate is the fact
that groups like the American Civil Liberties Union, ACLU, Human Rights
Watch, and Amnesty International have urged the Senate to reject the
Feinstein amendment. These groups have said that a vote against the
Feinstein amendment would send a clear message about our commitment to
constitutional rights. I respect the views and passion of these groups
but would urge a vote against the amendment for a different reason:
namely, I believe that we can keep faith with the Constitution and
maintain the global fight against al-Qaida.
Mr. DURBIN. Mr. President, I will support the Feinstein-Paul
amendment. This amendment would make it clear that Congress has not
authorized the indefinite detention of American citizens or lawful
permanent residents apprehended in the United States without charge or
trial. This is a common-sense amendment that should be completely
noncontroversial. It has long been understood that is unconstitutional
to indefinitely detain someone apprehended in the United States without
charge or trial. Indeed, the fifth amendment of the Constitution
provides simply that ``no person shall be . . . deprived of life,
liberty, or property without due process of law.''
Indefinite detention in the United States is not just
unconstitutional, it is unnecessary. Look at the track record. Since 9/
11, our counterterrorism professionals have prevented another terrorist
attack in the United States. And more than 400 terrorists have
successfully been prosecuted and convicted in federal court. Here are
just a few of the terrorists who have been convicted in federal court
and are serving long prison sentences: Umar Faruk Abulmutallab, the
Underwear Bomber; Ramzi Yousef, the mastermind of the 1993 WTC bombing;
Omar Abdel Rahman, the so-called ``Blind Sheikh''; 20th 9/11 hijacker
Zacarias Moussaoui; and Richard Reid, the ``Shoebomber''.
Some of my colleagues have claimed that the Supreme Court's Hamdi
decision upheld the indefinite detention of U.S. citizens captured in
the United States, but it did no such thing. Hamdi was captured in
Afghanistan, not the United States. And Justice O'Connor, the author of
the opinion, was very careful to say that the Hamdi decision was
limited to, ``individuals who fought against the United States in
Afghanistan as part of the Taliban.''
Some of my colleagues also cited the case of Jose Padilla, claiming
that it is a precedent for the indefinite detention of U.S. citizens
captured in the United States. But look at what happened in the Padilla
case. Padilla is a U.S. citizen who was placed in military custody in
the United States. The 4th Circuit Court of Appeals, one of the most
conservative courts in the country, upheld Padilla's military
detention. But then, before the Supreme Court had the chance to review
the 4th Circuit's decision, the Bush administration transferred Padilla
out of military custody and prosecuted him in criminal court. To this
day, the Supreme Court has never ruled on the question of whether it is
constitutional to indefinitely detain a U.S. citizen captured in the
United States.
A number of prominent civil liberties and human rights organizations
have expressed their concern that because the Feinstein-Paul amendment
only prohibits indefinite detention of U.S. citizens and lawful
permanent residents, it implicitly authorizes indefinite detention of
others apprehended in the United States. I am very sympathetic to this
concern. As Senator Feinstein and Senator Paul have both said on the
floor of the Senate, they oppose the indefinite detention of anyone
apprehended in the United States, including non-U.S. citizens and non-
lawful permanent residents. I agree.
Senator Feinstein and Senator Paul included language in this
amendment to make it clear that we are not implicitly authorizing the
indefinite detention of individuals who are not U.S. citizens or legal
permanent residents. On page 2, line 14, the amendment says

[[Page S7193]]

that the prohibition on indefinite detention of U.S. citizens and legal
permanent residents ``shall not be construed to authorize the detention
of . . . any other person who is apprehended in the United States.'' So
in adopting this amendment, the Senate is not implicitly authorizing
the indefinite detention of anyone.
To the contrary, the language I have just quoted makes it clear that
this amendment does not change existing detention authority of non-U.S.
citizens and non-lawful permanent residents in any way. What does that
mean? It means that the Supreme Court will decide whether non-U.S.
citizens and non-lawful permanent residents can be detained
indefinitely without trial, not the United States Senate.
I want to thank Senator Feinstein and Senator Paul for their
leadership on this issue and am proud to support their amendment.
Mrs. FEINSTEIN. Mr. President, in 1971, Congress passed and President
Nixon signed into law the Non-Detention Act of 1971, which repealed a
1950 statute that explicitly allowed detention of U.S. citizens.
The Non-Detention Act of 1971 clearly states:

No citizen shall be imprisoned or otherwise detained by the
United States except pursuant to an act of Congress.

Despite this history, during last year's debate on the Defense
authorization bill some in this body advocated for the indefinite
detention of American citizens. This is an issue that has been the
subject of much legal controversy since 9/11.
Proponents of indefinitely detaining U.S. citizens argue that the
Authorization for Use of Military Force, AUMF, that was enacted in the
wake of 9/11 is ``an act of Congress,'' in the language of the Non-
Detention Act, that authorizes the indefinite detention of American
citizens regardless of where they are captured.
We heard this argument again tonight from Senators Levin and Graham.
They assert that their position is justified by the U.S. Supreme
Court's plurality decision in the 2004 case of Hamdi v. Rumsfeld.
However, that position is undercut by the 2003 case of Padilla v.
Rumsfeld in the Second Circuit Court of Appeals.
But let me discuss the facts of Hamdi because it is important to note
that Yaser Esam Hamdi was a U.S. citizen who took up arms on behalf of
the Taliban and was captured on the battlefield in Afghanistan. The
Supreme Court effectively did uphold his military detention, so some of
my colleagues seize upon this to say that the military can detain even
U.S. citizens who are arrested domestically.
However, the Supreme Court's opinion in that case was a muddled
decision by a four-vote plurality that recognized the power of the
government to detain U.S. citizens captured in such circumstances as
``enemy combatants'' for some period, but otherwise repudiated the
government's broad assertions of executive authority to detain citizens
without charge or trial.
To the extent the Hamdi case permits the 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, at a minimum.
Additionally, decisions by the lower courts have contributed to the
current state of legal ambiguity, principally those decisions involving
Jose Padilla, a U.S. citizen who was arrested in Chicago. He was
initially detained pursuant to a material witness warrant based on the
9/11 terrorist attacks.
In Padilla v. Rumsfeld the Second Circuit Court of Appeals held that
the AUMF did not authorize his detention, saying:

We conclude that clear congressional authorization is
required for detentions of American citizens on American soil
because . . . the Non-Detention Act . . . prohibits such
detentions absent specific congressional authorization.

The Second Circuit went on to say that the 2001 Authorization for Use
of Military Force ``is not such an authorization, and no exception to
[the Non-Detention Act] otherwise exists.''
I think this history is particularly important in light of tonight's
debate.
The PRESIDING OFFICER. The majority leader.
Mr. REID. Mr. President, we have one more vote to start in just a few
minutes. Senator Levin wants to say something about the schedule for
tomorrow.
Senator Levin.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. We are going to be making a unanimous consent request, and
would like to do it right now, that tomorrow morning there be debate
and votes on the following five amendments: Senator Sessions on
bilateral discussions with Afghanistan, Sessions amendment No. 3009;
Cardin amendment No. 3025 on civilian personnel; Menendez amendment No.
3232 on Iran sanctions; Bill Nelson amendment No. 3073 involving widows
and orphans; and Coburn amendment No. 3254 involving second amendment
rights for veterans.
My request is that we have--I will make a unanimous consent request
now that tomorrow morning, at whatever time is allotted for morning
business by the leaders----
Mr. REID. There will be no morning business.
Mr. LEVIN. There will be no morning business--that we then proceed.
Now we don't have time agreements yet on these five. That is going to
take a few minutes. My unanimous consent request is that immediately
after prayer tomorrow we move to these five amendments. We will
allocate as little time as we can tonight after this unanimous consent
agreement is agreed to, if it is.
Mr. SCHUMER. Reserving the right to object, would this allow a vote,
an up-or-down vote on the Coburn amendment? Would this allow an up-or-
down vote on the Coburn amendment?
Mr. LEVIN. This will.
Mr. SCHUMER. I object.
The PRESIDING OFFICER. The objection is heard.

Vote On Amendment No. 3018

The PRESIDING OFFICER. Under the previous order, the question is on
agreeing to amendment No. 3018, offered by the Senator from California,
Mrs. Feinstein.
Mr. REID. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from West Virginia (Mr.
Rockefeller) and the Senator from Oregon (Mr. Wyden) are necessarily
absent.
Mr. KYL. The following Senators are necessarily absent: the Senator
from Nevada (Mr. Heller) and the Senator from Illinois (Mr. Kirk).
Further, if present and voting, the Senator from Nevada (Mr. Heller)
would have voted ``yea.''
The PRESIDING OFFICER (Mr. Pryor). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 67, nays 29, as follows:

[Rollcall Vote No. 213 Leg.]

YEAS--67

Akaka
Alexander
Barrasso
Baucus
Begich
Bennet
Bingaman
Blumenthal
Blunt
Boozman
Boxer
Brown (OH)
Cantwell
Cardin
Carper
Casey
Coburn
Collins
Conrad
Coons
Corker
Crapo
DeMint
Durbin
Enzi
Feinstein
Franken
Gillibrand
Graham
Hagan
Harkin
Hoeven
Inhofe
Inouye
Johnson (SD)
Kerry
Klobuchar
Kohl
Landrieu
Lautenberg
Leahy
Lee
Levin
McCain
McCaskill
Menendez
Merkley
Mikulski
Moran
Murkowski
Murray
Nelson (FL)
Paul
Reed
Reid
Risch
Sanders
Schumer
Shaheen
Snowe
Stabenow
Tester
Udall (CO)
Udall (NM)
Warner
Webb
Whitehouse

NAYS--29

Ayotte
Brown (MA)
Burr
Chambliss
Coats
Cochran
Cornyn
Grassley
Hatch
Hutchison
Isakson
Johanns
Johnson (WI)
Kyl
Lieberman
Lugar
Manchin
McConnell
Nelson (NE)
Portman
Pryor
Roberts
Rubio
Sessions
Shelby
Thune
Toomey
Vitter
Wicker

NOT VOTING--4

Heller
Kirk
Rockefeller
Wyden
The amendment (No. 3018) was agreed to.

[[Page S7194]]

Mr. LEVIN. Mr. President, I move to reconsider the vote.
Mr. REID. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, the last unanimous consent which was
objected to listed the five amendments. I am now going to list the
first four of those five amendments so everybody knows what I am doing.
I ask unanimous consent that it be in order for the following first-
degree amendments to be offered tomorrow, with no more amendments
tonight: Sessions 3009, Cardin 3025, Menendez 3232, and Nelson of
Florida 3073.
The PRESIDING OFFICER. Is there objection?
The Senator from Oklahoma.
Mr. COBURN. Mr. President, reserving the right to object, I find it
highly ironic that we just passed an amendment to protect the
constitutional rights of Americans, and we have an objection to
protecting the second amendment rights of the veterans of this country.
How in the world can we say to people who fight and defend for us
through a social worker deemed incompetent to carry a gun, that ought
to be on the basis of a danger to themselves or to someone else, and it
ought to be adjudicated, and we have Senators objecting to protecting
the rights of the people who defend us?
On that basis, the contrary nature of that basis of what we just did,
I will object to any further unanimous consents on this bill until we
have a vote to protect the rights of the people who defend this
country.
The PRESIDING OFFICER. Objection is heard.
The Senator from New York.
Mr. SCHUMER. Mr. President, I want to set the record straight. This
is a provision in the law that I worked on in fact with the Senator
from Oklahoma, and it says something very simple: If you are
adjudicated mentally infirm, you are on the same list that prevents you
from buying a gun as if you are a felon.
In my judgment--I love our veterans, I vote for them all the time.
They defend us. But if you are mentally ill, whether you are a veteran
or not--just as if you are a felon. If you are a veteran or not and you
have been judged to be mentally infirm, you should not have a gun.
And no amendment, my friend, is absolute. The first amendment is not
absolute. You are against antipornography laws. The third, fourth,
fifth, sixth, seventh, eighth, and ninth amendments. And as much as I
believe in the second amendment and the right to bear arms and was a
supporter of the Heller decision, neither is the second amendment.
I continue my objections to the provision.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, after 12 hours today, 8 hours yesterday,
over 42 amendments, and many more coming in the managers' package, what
we have is a situation where the Senator from New York--because of his
passion, which he just articulated--refuses to allow the Senator from
Oklahoma his rights as a Senator; and that would be, since we have
taken up this legislation with amendments and votes with a 51-vote
majority as applicable, we have moved through, I am very proud to say,
I think a very good process that I think all of us can be proud of.
But the Senator from New York, because of his passion and commitment
and belief--all of which I respect--will now prevent the Senator from
Oklahoma from having his amendment considered. Why? Because he is
afraid he will lose. The Senator from South Carolina and the Senator
from New Hampshire and I have been losing all day long, and I am
passionate about that.
But I ask my colleague from New York, do we really want to have a
situation where the depth of our passion now dictates whether the
Senate should be allowed to go forward? The Senator from Oklahoma has
the same right as every other Senator has had to propose an amendment.
I will be glad to debate it, and up or down. Because if we are now
going to tell our colleagues that if you have an amendment and you feel
that you are going to lose and it really goes to the heart of your
beliefs, that you are not going to allow the Senate to work, I think
that is a very bad and dangerous precedent for us to set.
Passions are high tonight, I say to my friend from Michigan. I think
we have a pending amendment now and there will be other amendments that
we will line up. We could maybe overnight calm down a little bit and
move forward with a process that we have enjoyed for the last 2 days.
No matter how passionate we feel about a particular issue, we should
let the Senate work its will; otherwise, we will never complete a piece
of legislation around here unless we go back to what we have been doing
before, and that is fill up the tree, file cloture, and then none of us
are able to engage in what the Senate should--and that is open and
honest debate and respecting the will of the majority.
So I urge, with all respect and appreciation for the passion of the
Senator from New York, allow this process to go forward. Let an
amendment be considered, let a second-degree amendment be considered,
and respect the will of the majority, and move on and live to fight
another day; otherwise, we will derail the Defense authorization bill
that we have managed to pass for the last 51 years, and the men and
women who are serving in the military and our Nation's security will be
jeopardized.
I don't want to get into a fight with the Senator from New York. I
respect his passion. But I hope for the good of the institution he
would allow this process to go forward just as it has for the last
couple of days.
I thank my friend from New York for listening.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, along the same lines, I would hope that at
least with these four amendments--which are now ready to be debated and
voted upon--that our friend from Oklahoma would allow that to proceed,
with the notice that from thereon he would not allow any unanimous
consent agreement. But this has been worked on for so long and these
four amendments are lined up so nicely for debate tomorrow that I would
urge him to relent and allow us to at least proceed to those four
amendments. And he has now put the body on notice that he would not
agree to any additional beyond that.
I happen to agree with my friend from Arizona. We are going to
debate, folks. Sooner or later, these amendments are going to be
debated, unless a cloture motion--which is going to be filed tomorrow--
is approved on Monday. And then we are right back in the same problem
we have had, which has just been eloquently described by Senator
McCain. And if we don't vote cloture, this bill isn't going anywhere.
If we do vote cloture, then we will have made it impossible for some
people to offer amendments, which they should be allowed to offer.
Let us be clear on what is happening tomorrow, to the extent it is
possible--which is not very extensive. And I want to get the Chair to
confirm this. There is a pending amendment. It is a modified Kyl
amendment. This has been modified so that it was been worked out with
Senator Kerry. That is pending. Is the Senator correct?
The PRESIDING OFFICER. The amendment has not yet been modified, but
it is pending.
Mr. LEVIN. It is pending and will be modified tomorrow.
At that point the Chair is going to ask whether there is any
additional debate on that amendment. If there is no additional debate,
then the Chair is going to put the question. If there is a request for
a rollcall, there will be a rollcall. If there is not, it will be voice
voted. At that point, the floor is open. And I intend to then offer the
Sessions amendment, the first one on this list, and then that is going
to be open to debate. And if our colleagues want to come here tomorrow
and filibuster or prevent a vote on the Sessions amendment, they are
going to have to come here and debate.
But we have tried the best we know how to move this bill forward. We
have done everything we know how, and we have made great progress, with
the Members of this body being extremely cooperative. We are not giving
up.
So the only technique left to us, given these two objections, is the
one I just identified: to have the pending Kyl

[[Page S7195]]

amendment, after it is modified, debated. If no one wants to debate,
the Chair is going to put the question, or we will have a rollcall on
it if people want it. And then the floor is open, and I will be
offering the next one in line, which is the Sessions amendment. Then if
people want to debate that or filibuster that, the rules of the Senate
allow you to do it. But I don't think that is what is going to happen.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, could I also add, I think we need to look
at this in the larger context. The larger context is that there is a
looming crisis in this body. The majority leader is going to possibly
exercise a nuclear option, which then would change the way we do
business around here, especially on the motion to proceed. The Senator
from Michigan and I had two goals in mind: one, to achieve conclusion
of the Defense authorization bill, which is vital to our national
security on which I think we would all agree. But we also wanted to
show our colleagues, and maybe the country, that we could move forward
in a normal fashion with legislation, amendments, and final votes
without cloture motions, without blocking things, without objecting to
other people's amendments, and time agreements such as we have just
completed in the last 20 hours, some 42 amendments that have been
completed.
Again, I urge my colleagues, let's show ourselves and the majority
leader and those who want to exercise this nuclear option that we can
take up legislation in an orderly fashion and come to a conclusion and
do the people's work.
There is more here, frankly, than just a refusal to allow an
amendment.
We are again going to show that we have to file cloture and then
there will be people going on and on. Then I say to my friends on this
side of the aisle, that is going to mean it is more likely that we have
this showdown which we think, many of us think, would be devastating to
this institution and the way that it has done business for a couple of
hundred years.
Several Senators addressed the Chair.
The PRESIDING OFFICER. The Senator from New York.
Mr. SCHUMER. Mr. President, I want to say to my colleague from
Arizona I very much appreciate his words and I appreciate the respect
he has shown for how I feel about this particular issue. But I would
like to say another thing here. We are in a little bit of ``Alice in
Wonderland.'' The number of times I have risen to my feet in this body
to object because I did not want an amendment to come forward can be
counted on a single hand over the last year or two. My good colleague
from Oklahoma has made himself a legislative powerhouse by regularly
using that practice. In fact, my guess is--more than my guess, the
reason his amendment was included on the list of five--there are
hundreds of amendments pending--is because he told people just what he
would do: He would object to every other amendment unless his amendment
was included.
Let me say here that if this process is going to change, it is not
going to start changing in one of the rare moments when the Senator
from New York or some of my colleagues here use a process that has been
regularly used by the other side to achieve their goals or thwart other
people's goals. We are not going to start at this moment changing
things when an amendment of great importance to many of us on this side
is at risk. I find it unfair and in fact I find it a little bit turning
the world--not the world, but the facts of how this body works--inside
out. Because it is well known that my good friend from Oklahoma and
others have used the very rule I have used tonight over and over again.
That in fact, I would say to both my colleagues from Michigan and from
Arizona, is one of the reasons we are so frustrated with the present
state of the rules.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. COBURN. All we are asking for the veterans of this country is
that if their rights are taken away that it be adjudicated by a judge
or magistrate. That is all we are asking. Rather than a social worker
at the VA--which is what happens today to veterans. We are not asking
for anything big. We are just saying if you are going to take away the
second amendment rights, which means all those who truly should lose
their rights will lose them, but they ought to have it adjudicated
rather than mandated by somebody who is unqualified to state that they
should lose their rights.
I will announce today right now that I will not object if Senator
Levin again offers the request that will put four amendments on the
floor. I will not object to that. I want to cooperate in this body. But
I think you ought to think about what we just voted on--which I voted
for--which is to protect the Bill of Rights for people of this country.
To protect the Bill of Rights for people of this country. There could
be no one for whom we should want to protect the Bill of Rights more
than somebody who served our country.
We can object. All I am saying is, let them at least have their day
in court if you are going to take away a fundamental right given under
the Constitution. I will say today, if the Senator from Michigan offers
his unanimous consent again I will not object and we will move forward
because I want us to move forward. I want us to finish this bill. I
want the Defense Department to be able to have something they can count
on for the next year. But ask yourself in your heart, how fair is it?
We are worried about terrorists and their Bill of Rights but we are not
worried about the people who defend our country and their Bill of
Rights? Tell me how we got to that point.
I yield the floor.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, I ask unanimous consent it be in order for
the following first-degree amendments to be offered: Sessions No. 3009,
Cardin No. 3025, Menendez No. 3232, Nelson of Florida no. 3073; that at
9:30 a.m. on Friday, tomorrow, November 30, following the prayer, that
the Senate proceed to votes in relation to the amendments in the order
listed; that there be 2 minutes equally divided prior to each vote;
that there be no amendments in order to the amendments prior to the
votes.
Mr. McCAIN. Reserving the right to object, and I will not object, as
I understand it, there are still no time agreements on this?
Mr. LEVIN. That is correct. We will work out time agreements----
Mrs. BOXER. Reserving the right----
Mr. McCAIN. I still have the floor.
Mr. LEVIN. The only time agreement we have in yet is the time we come
in, not a time for a vote.
Mr. McCAIN. I wanted to clarify.
Mr. LEVIN. Oh, I did not state that correctly. I believed, and I am
now wrong, that there would be a time agreement on each amendment that
we would attempt to arrive at. That is not what this says. This
provides, and I am going to read it again, and I did not listen to my
own reading--that at 9:30, following the prayer tomorrow, the Senate
proceed to votes in relation to the amendments in the order listed and
that there be 2 minutes equally divided prior to each vote; and there
be no amendments in order to the amendments prior to the votes.
I think we ought to have more debate on some of these amendments than
that. The debates could take place tonight.
Mr. MENENDEZ. Reserving the right to object, I ask the Senator----
The PRESIDING OFFICER. The Senator from New Jersey.
Mr. MENENDEZ. Did the Senator say the only time for debate on these
amendments would be 2 minutes?
Mr. LEVIN. Tonight is open for debate.
Mr. MENENDEZ. Tonight is open. Tomorrow there would just be 2 minutes
on each amendment? Because Senator Kirk and I, and Senator Lieberman,
have amendments that several Members have asked to speak on, including
the distinguished ranking member. I would then urge them to come
tonight and speak on it. I will not object.
The PRESIDING OFFICER. The Senator from Arizona. Is there objection?
Mr. McCAIN. I completed my statement.
Mrs. BOXER. Reserving the right to object and I will not object, I
want to speak for 20 seconds. This is what I want to say.
There are amendments and there are amendments. We all know that. I
think we have shown that we can work together. But when you try to
repeal a

[[Page S7196]]

law that protects the lives of people--you talk about protecting
rights, I am with you. I also want to protect the lives of people.
Coming from a State where we have had many mass shootings it may take a
little longer. Maybe we ought to have a hearing or two before you
repeal a law that is so important to the safety of the people.
I will not object. I will see you all tomorrow.
Mr. COBURN. Reserving the right to object, this bill came out of the
Veterans' Committee 14 to 0. They had hearings on it. We have done the
work. It has been done. It came unanimously out of the Veterans'
Committee. There is no question about what is right to do in terms of
protecting--this is not about allowing anybody with any mental disease
to have a gun. This is about taking the rights of those who do not have
a mental disease to have their rights restored.
The PRESIDING OFFICER. Does the Senator from Oklahoma object?
Mr. COBURN. I do not.
The PRESIDING OFFICER. There has been a unanimous consent request. If
there is no objection, it is so ordered.
The Senator from Michigan.

Amendments Nos. 2940, 3036, 3064, 3114, 3193, 3213, 3220, 3222, 3237,
3243, 3256, 3260, 3261, 3271, 3275, and 3279

Mr. LEVIN. Mr. President, I now call up a list of 17 amendments which
have been cleared by myself and Senator McCain. I am going to list
these amendments:

Blumenthal amendment No. 2940, Brown of Massachusetts
amendment No. 3036, Toomey amendment No. 3064, Levin
amendment No. 3114, Casey amendment No. 3193, Risch amendment
No. 3213, Wicker amendment No. 3220, Johanns amendment No.
3222, Coburn amendment No. 3237, Levin amendment No. 3243,
Lieberman amendment No. 3256, Cornyn amendment No. 3260,
McCain amendment No. 3261, Kyl amendment No. 3271, Webb
amendment No. 3275, Nelson of Nebraska amendment No. 3279.

The PRESIDING OFFICER. Is there objection?
Mr. McCAIN. Mr. President, reserving the right to object, and I will
not object----
The PRESIDING OFFICER. The Senate will come to order.
Mr. McCAIN. We now have 17 more amendments. We will be proceeding
tomorrow morning. I want to tell my colleagues, we will be looking at
other amendments to put into a package we can agree on, but I also urge
many of my colleagues who have redundant and duplicative amendments to
look at their amendments and withdraw them if possible so we can
dispose of remaining amendments as soon as possible tomorrow.
I thank especially Senator Feinstein and Senator Graham and Senator
Ayotte and those who were involved in this whole detainee issue. I
think it was a result that helped us to move forward enormously. I
thank, obviously, the chairman for his unlimited patience, which is a
quality which I do not have.
The PRESIDING OFFICER. Is there objection to the unanimous consent
request to adopt the amendments en bloc?
Without objection, it is so ordered.
The amendments were agreed to, as follows:

AMENDMENT NO. 2940

(Purpose: To provide certain requirements relating to the retirement,
adoption, care, and recognition of military working dogs)

At the end of subtitle E of title X, add the following:

SEC. 1048. MILITARY WORKING DOG MATTERS.

(a) Retirement of Military Working Dogs.--
(1) Section 2583 of title 10, United States Code, is
amended--
(A) by redesignating subsections (f) and (g) as subsections
(g) and (h), respectively; and
(B) by inserting after subsection (e) the following new
subsection (f):
``(f) Transfer of Retired Military Working Dogs.--If the
Secretary of the military department concerned determines
that a military working dog should be retired, and no
suitable adoption is available at the military facility where
the dog is located, the Secretary may transfer the dog--
``(1) to the 341st Training Squadron; or
``(2) to another location for adoption under this
section.''.
(b) Veterinary Care for Retired Military Working Dogs.--
(1) In general.--Chapter 50 of title 10, United States
Code, is amended by adding at the end the following new
section:

``Sec. 993. Military working dogs: veterinary care for
retired military working dogs

``(a) In General.--The Secretary of Defense may establish
and maintain a system to provide for the veterinary care of
retired military working dogs. No funds may be provided by
the Federal Government for this purpose.
``(b) Eligible Dogs.--A retired military working dog
eligible for veterinary care under this section is any
military working dog adopted under section 2583 of this
title.
``(c) Standards of Care.--The veterinary care provided
under the system authorized by this section shall meet such
standards as the Secretary shall establish and from time to
time update.''.
(2) Clerical amendment.--The table of sections at the
beginning of chapter 50 of such title is amended by adding at
the end the following new item:

``993. Military working dogs: veterinary care for retired military
working dogs.''.
(c) Recognition of Service of Military Working Dogs.--The
Secretary of Defense may authorize the recognition of
military working dogs that are killed, wounded, or missing in
action and military working dogs that perform an
exceptionally meritorious or courageous act in service to the
United States.

AMENDMENT NO. 3036

(Purpose: To require reports on the potential security threat posed by
Boko Haram)

At the end of subtitle H of title X, add the following:

SEC. 1084. REPORTS ON THE POTENTIAL SECURITY THREAT POSED BY
BOKO HARAM.

(a) Director of National Intelligence Report.--Not later
than 180 days after the date of the enactment of this Act,
the Director of National Intelligence shall submit to
Congress an intelligence assessment of the Nigerian
organization known as Boko Haram. Such assessment shall
address the following:
(1) The organizational structure, operational goals, and
funding sources of Boko Haram.
(2) The extent to which Boko Haram threatens the stability
of Nigeria and surrounding countries.
(3) The extent to which Boko Haram threatens the security
of citizens of the United States or the national security or
interests of the United States.
(4) Any interaction between Boko Haram and al-Qaeda in the
Islamic Maghreb or other al-Qaeda affiliates with respect to
operational planning and execution, training, and funding.
(5) The capacity of Nigerian security forces to counter the
threat posed by Boko Haram and an assessment of the
effectiveness of the strategy of the Nigerian government to
date.
(6) Any intelligence gaps with respect to the leadership,
operational goals, and capabilities of Boko Haram.
(b) Secretary of State Report.--Not later than 90 days
after the date the report required by subsection (a) is
submitted to Congress, the Secretary of State shall submit to
Congress a report describing the strategy of the United
States to counter the threat posed by Boko Haram.

AMENDMENT NO. 3064

(Purpose: To require a study on the Bradley Fighting Vehicle industrial
base)

At the end of subtitle F of title X, add the following:

SEC. 1064. STUDY ON BRADLEY FIGHTING VEHICLE INDUSTRIAL BASE.

(a) In General.--Not later than 90 days after the date of
the enactment of this Act, the Secretary of the Army shall
conduct a study on the Bradley Fighting Vehicle industrial
base.
(b) Content.--The study required under subsection (a)
shall--
(1) assess the quantitative impacts of a production break
for the Bradley Fighting Vehicle, including the cost of
shutdown compared to the cost of continued production; and
(2) assess the qualitative impacts of a production break
for the Bradley Fighting Vehicle, including the loss of a
specialized workforce and supplier base.

AMENDMENT NO. 3114

(Purpose: To authorize the repair, overhaul, and refurbishment of
defense articles for sale or transfer to eligible foreign countries and
entities)

At the end of subtitle D of title XII, add the following:

SEC. 1246. PROGRAM ON REPAIR, OVERHAUL, AND REFURBISHMENT OF
DEFENSE ARTICLES FOR SALE OR TRANSFER TO
ELIGIBLE FOREIGN COUNTRIES AND ENTITIES.

(a) Program Authorized.--The Secretary of Defense may carry
out a program to repair, overhaul, or refurbish in-stock
defense articles in anticipation of the sale or transfer of
such defense articles to eligible foreign countries or
international organizations under law.
(b) Fund for Support of Program Authorized.--The Secretary
of Defense may establish and administer a fund to be known as
the ``Special Defense Repair Fund'' (in this section referred
to as the ``Fund'') to support the program authorized by
subsection (a).
(c) Credits to Fund.--
(1) In general.--Subject to paragraphs (2) and (3), the
following shall be credited to the Fund:
(A) Subject to applicable provisions of appropriations
Acts, such amounts, not to exceed $48,400,000 per fiscal
year, from amounts authorized to be appropriated for the
Department of Defense for operation and maintenance for the
Army as the Secretary of Defense considers appropriate.

[[Page S7197]]

(B) Notwithstanding section 114(c) of title 10, United
States Code, any collection from the sale or transfer of
defense articles from Department of Defense stocks repaired,
overhauled, or refurbished with amounts from the Fund that
are not intended to be replaced which sale or transfer is
made pursuant to section 21(a)(1)(A) of the Arms Export
Control Act (22 U.S.C. 2761(a)(1)(A)), the Foreign Assistance
Act of 1961 (22 U.S.C. 2151 et seq.), or another provision of
law.
(C) Notwithstanding section 37(a) of the Arms Export
Control Act (22 U.S.C. 2777(a)), any cash payment from the
sale or transfer of defense articles from Department of
Defense stocks repaired, overhauled, or refurbished with
amounts from the Fund that are intended to be replaced.
(2) Limitation on amounts creditable from sale or transfer
of articles.--
(A) Credits in connection with articles not to be
replaced.--The amount credited to the Fund under paragraph
(1)(B) in connection with a collection from the sale or
transfer of defense articles may not exceed the cost incurred
by the Department of Defense in repairing, overhauling, or
refurbishing such defense articles under the program
authorized by subsection (a).
(B) Credits in connection with articles to be replaced.--
The amount credited to the Fund under paragraph (1)(C) in
connection with a sale or transfer of defense articles may
not exceed the amounts from the Fund used to repair,
overhaul, or refurbish such defense articles.
(3) Limitation on size of fund.--The total amount in the
Fund at any time may not exceed $50,000,000.
(4) Treatment of amounts credited.--Amounts credited to the
Fund under this subsection shall be merged with amounts in
the Fund, and shall remain available until expended.
(d) Nonavailability of Amounts in Fund for Storage,
Maintenance, and Related Costs.--Following the repair,
overhaul, or refurbishment of defense articles under the
program authorized by subsection (a), amounts in the Fund may
not be used to pay costs of storage and maintenance of such
defense articles or any other costs associated with the
preservation or preparation for sale or transfer of such
defense articles.
(e) Sales or Transfers of Defense Articles.--
(1) In general.--Any sale or transfer of defense articles
repaired, overhauled, or refurbished under the program
authorized by subsection (a) shall be in accordance with--
(A) the Arms Export Control Act (22 U.S.C. 2751 et seq.);
(B) the Foreign Assistance Act of 1961; or
(C) another provision of law authorizing such sale or
transfer.
(2) Secretary of state concurrence required for certain
sales or transfers to foreign countries.--If the sale or
transfer of defense articles occurs in accordance with a
provision of law referred to in paragraph (1)(C) that does
not otherwise require the concurrence of the Secretary of
State for the sale or transfer, the sale or transfer may be
made only with the concurrence of the Secretary of State.
(f) Transfers of Amounts.--
(1) Transfer to other department of defense accounts.--
Amounts in the Fund may be transferred to any Department of
Defense account used to carry out the program authorized by
subsection (a). Any amount so transferred shall be merged
with amounts in the account to which transferred, and shall
be available for the same purposes and the same time period
as amounts in the account to which transferred.
(2) Transfer from other department of defense accounts.--
Upon a determination by the Secretary of Defense with respect
to an amount transferred under paragraph (1) that all or part
of such transfer is not necessary for the purposes
transferred, such amount may be transferred back to the Fund.
Any amount so transferred shall be merged with amounts in the
Fund, and shall remain available until expended.
(g) Certain Excess Proceeds To Be Credited to Special
Defense Acquisition Fund.--Any collection from the sale or
transfer of defense articles that are not intended to be
replaced in excess of the amount creditable to the Fund under
subsection (c)(2)(A) shall be credited to the Special Defense
Acquisition Fund established pursuant to chapter 5 of the
Arms Export Control Act (22 U.S.C. 2795 et seq.).
(h) Reports.--
(1) Annual report.--Not later than 45 days after the end of
each fiscal year through the date of expiration specified in
subsection (j), the Secretary of Defense shall submit to the
congressional defense committees a report on the authorities
under this section during such fiscal year. Each report shall
include, for the fiscal year covered by such report, the
following:
(A) The types and quantities of defense articles repaired,
overhauled, or refurbished under the program authorized by
subsection (a).
(B) The value of the repair, overhaul, or refurbishment
performed under the program.
(C) The amount of operation and maintenance funds credited
to the Fund under subsection (c)(1)(A).
(D) The amount of any collections from the sale or transfer
of defense articles repaired, overhauled, or refurbished
under the program that was credited to the Fund under
subsection (c)(1)(B).
(E) The amount of any cash payments from the sale or
transfer of defense articles repaired, overhauled, or
refurbished under the program that was credited to the Fund
under subsection (c)(1)(C).
(2) Assessment report.--Not later than February 1, 2015,
the Secretary of Defense shall submit to the congressional
defense committees a report on the operation of the
authorities in this section. The report shall include an
assessment of the effectiveness of the authorities in meeting
the objectives of the program authorized by subsection (a).
(i) Defense Article Defined.--In this section, the term
``defense article'' has the meaning given that term in
section 47(3) of the Arms Export Control Act (22 U.S.C.
2794(3)).
(j) Expiration of Authority.--The authority to carry out
the program authorized by subsection (a), and to use amounts
in the Fund in support of the program, shall expire on
September 30, 2015.
(k) Funding for Fiscal Year 2013.--Of the amounts
authorized to be appropriated for fiscal year 2013 by section
1504 for Overseas Contingency Operations and available for
operation and maintenance for the Army as specified in
funding table in section 4302, $48,400,000 shall be available
for deposit in the Fund pursuant to subsection (c)(1)(A),
with the amount of the deposit to be attributable to amounts
otherwise so available for the YMQ-18A unmanned aerial
vehicle, which has been cancelled.

AMENDMENT NO. 3193

(Purpose: To require the Department of Defense to develop a plan to
promote the security of Afghan women and girls during the security
transition process)

The text of the amendment is printed in today's Record under ``Text
of Amendments.''

AMENDMENT NO. 3213

(Purpose: To add the Select Committee on Intelligence and the Committee
on Foreign Relations of the Senate and the Permanent Select Committee
on Intelligence and the Committee on Foreign Affairs of the House of
Representatives to the list of congressional committees to receive the
submission of reports on the program for scientific engagement for
nonproliferation)

Strike section 3114 and insert the following:

SEC. 3114. PROGRAM ON SCIENTIFIC ENGAGEMENT FOR
NONPROLIFERATION.

(a) Program Required.--
(1) In general.--Title XLIII of the Atomic Energy Defense
Act (50 U.S.C. 2562 et seq.) is amended by adding at the end
the following new section:

``SEC. 4309. PROGRAM ON SCIENTIFIC ENGAGEMENT FOR
NONPROLIFERATION.

``(a) Program Required.--(1) The Secretary of Energy shall,
acting through the Administrator of the National Nuclear
Security Administration, carry out a program on scientific
engagement in countries selected by the Secretary for
purposes of the program in order to advance global
nonproliferation and nuclear security efforts.
``(2) The program required by this section shall be a
distinct program from the Global Initiatives for
Proliferation Prevention program.
``(b) Elements.--The program shall include the elements as
follows:
``(1) Training and capacity-building to strengthen
nonproliferation and security best practices.
``(2) Engagement of United States scientists with foreign
counterparts to advance nonproliferation goals.
``(c) Report on Commencement of Program.--Funds may not be
expended under the program required by this section until the
Administrator submits to the appropriate congressional
committees a report setting forth the following:
``(1) For each country selected for the program as of the
date of such report--
``(A) a proliferation threat assessment prepared by the
Director of National Intelligence; and
``(B) metrics for evaluating the success of the program.
``(2) Accounting standards for the conduct of the program
approved by the Comptroller General of the United States.
``(d) Reports on Modification of Program.--Before making
any modification in the program (whether selecting a new
country for the program, ceasing the selection of a country
for the program, or modifying an element of the program), the
Administrator shall submit to the appropriate congressional
committees a report on the modification. If the modification
consists of the selection for the program of a country not
previously selected for the program, the report shall include
the matters specified in subsection (c)(1) for the country.
``(e) Appropriate Congressional Committees Defined.--In
this section, the term `appropriate congressional committees'
means--
``(1) the Committee on Appropriations, the Committee on
Armed Services, the Committee on Foreign Relations, and the
Select Committee on Intelligence of the Senate; and
``(2) the Committee on Appropriations, the Committee on
Armed Services, the Committee on Foreign Affairs, and the
Permanent Select Committee on Intelligence of the House of
Representatives.''.
(2) Clerical amendment.--The table of contents in section
4001(b) of such Act (division D of Public Law 107-314) is
amended by

[[Page S7198]]

inserting after the item relating to section 4308 the
following new item:

``Sec. 4309. Program on scientific engagement for nonproliferation.''.
(b) Report on Coordination With Other United States
Nonproliferation Programs.--Not later than 180 days after the
date of the enactment of this Act, the Administrator of the
National Nuclear Security Administration shall submit to the
appropriate congressional committees a report describing the
manner in which the program on scientific engagement for
nonproliferation under section 4309 of the Atomic Energy
Defense Act (as added by subsection (a)) coordinates with and
complements, but does not duplicate, other nonproliferation
programs of the United States Government.
(c) Comptroller General of the United States Report.--Not
later than two years after the date of the enactment of this
Act, the Comptroller General of the United States shall
submit to the appropriate congressional committees a report
on the program on scientific engagement for nonproliferation
under section 4309 of the Atomic Energy Defense Act (as so
added). The report shall include an assessment by the
Comptroller General of the success of the program, as
determined in accordance with the metrics for evaluating the
success of the program under subsection (c)(1)(B) of such
section 4309, and such other matters on the program as the
Comptroller General considers appropriate.
(d) Appropriate Congressional Committees Defined.--In this
section, the term ``appropriate congressional committees''
means--
(1) the Committee on Appropriations, the Committee on Armed
Services, the Committee on Foreign Relations, and the Select
Committee on Intelligence of the Senate; and
(2) the Committee on Appropriations, the Committee on Armed
Services, the Committee on Foreign Affairs, and the Permanent
Select Committee on Intelligence of the House of
Representatives.

AMENDMENT NO. 3220

(Purpose: To express the sense of Congress in support of the Israeli
Iron Dome defensive weapon system)

At the end of subtitle D of title XII, add the following:

SEC. 1246. SENSE OF CONGRESS ON THE ISRAELI IRON DOME
DEFENSIVE WEAPON SYSTEM.

(a) Findings.--Congress makes the following findings:
(1) The citizens of Israel have suffered under a continual
barrage of missiles, rockets, and mortar shells from the
Hamas-controlled Gaza Strip.
(2) Hamas has been designated by the Secretary of State as
a Foreign Terrorist Organization.
(3) Hamas and other terrorist groups in Gaza have routinely
used human shields and launched rockets from civilian areas.
(4) Israel has gone to extraordinary lengths to avoid
Palestinian civilian casualties, including aborting attacks
on military targets because of the presence of civilians,
alerting civilians to leave areas of potential conflict, and
allowing the importation of medical and other supplies into
Gaza.
(5) Israel faces additional rocket and missile threats from
Lebanon and Syria.
(6) The Government of Iran has supplied Hamas with advanced
longer range missiles such as the Fajar-5.
(7) Hamas has deployed these weapons to be fired from
within their own civilian population.
(8) The Government of Israel, taking seriously the threat
of short range rockets and mortars, designed, developed, and
produced the Iron Dome system to address those threats.
(9) The Iron Dome system has successfully intercepted
hundreds of rockets targeting population centers in Israel.
(10) The Iron Dome system has maintained a success rate of
close to 90 percent.
(11) The Government of Israel currently maintains 5 Iron
Dome batteries, a number insufficient to protect all of
Israel.
(12) It appears that approximately 10 additional Iron Dome
batteries are needed to protect all of Israel.
(13) The United States Government, recognizing the threat
to Israeli citizens and desirous of promoting peace, approved
funding to assist the Government of Israel in procuring Iron
Dome batteries.
(14) Israel maintains a significant inventory of Iron Dome
interceptors which has been reduced due to attacks from Gaza.
(15) Israel used a significant number of precision-guided
munitions in order to destroy military targets while
minimizing civilian casualties in its recent defensive effort
in Gaza.
(16) President Barack Obama has expressed his intention to
seek additional funding for Iron Dome and other United
States-Israel missile defense systems.
(b) Sense of Congress.--Congress--
(1) reaffirms its commitment to the security of our ally
and strategic partner, Israel;
(2) fully supports Israel's right to defend itself against
acts of terrorism;
(3) sympathizes with the families of Israelis who have come
under the indiscriminate rocket fire from Hamas-controlled
Gaza;
(4) recognizes the exceptional success of the Iron Dome
Missile Defense system in defending the population of Israel;
(5) desires to help ensure that Israel has the means to
defend itself against terrorist attacks, including through
the acquisition of additional Iron Dome batteries and
interceptors; and
(6) urges the Departments of Defense and State to explore
with their Israeli counterparts and alert Congress of any
needs the Israeli Defense Force may have for additional Iron
Dome batteries, interceptors, or other equipment depleted
during the current conflict.

AMENDMENT NO. 3222

(Purpose: To express the expectation of Congress to be consulted by the
Secretary of Defense before the Secretary pursues a change in the
command status of the United States Cyber Command)

At the end of subtitle C of title IX, add the following:

SEC. 935. SENSE OF CONGRESS ON THE UNITED STATES CYBER
COMMAND.

(a) Findings.--Congress makes the following findings:
(1) On June 23, 2009, the Secretary of Defense directed the
Commander of the United States Strategic Command to establish
the United States Cyber Command, which became operational on
May 21, 2010, and operates as a sub-unified command
subordinate to the United States Strategic Command.
(2) In May 2012, media reports indicated that General
Martin Dempsey, the Chairman of the Joint Chiefs of Staff,
planned to recommend to Secretary of Defense Leon Panetta
that the two-year-old United States Cyber Command be elevated
to full combatant command status.
(3) On August 14, 2012, General Keith Alexander, the
Commander of the United States Cyber Command and the Director
of the National Security Agency, addressed the TechNet Land
Forces conference and stated that ``[i]n 2007 we drafted . .
. a paper . . . about establishing a Cyber Command . . .
[which concluded that] . . . the most logical is to set it up
as a sub unified and grow it to a unified, and I think that's
the process that we're going to work our way through''.
(4) On October 11, 2012, Secretary of Defense Leon Panetta
discussed cybersecurity in a speech to the Business
Executives for National Security in New York, New York,
specifically calling for a strengthening of the United States
Cyber Command and stating that the Department of Defense
``must ensure that [the United States Cyber Command] has the
resources, that it has the authorities, that it has the
capabilities required to perform this growing mission. And it
must also be able to react quickly to events unfolding in
cyberspace and help fully integrate cyber into all of the
department's plans and activities.''.
(b) Sense of Congress.--Congress--
(1) recognizes the serious cyber threat to national
security and the need to work both offensively and
defensively to protect the Nation's networks and critical
infrastructure;
(2) acknowledges the importance of the unified command
structure of the Department in directing military operations
in cyberspace and recognizes that a change in the status of
the United States Cyber Command has Department-wide and
national security implications, which require careful
consideration;
(3) expects to be briefed and consulted about any proposal
to elevate the United States Cyber Command to a unified
command before a decision by the Secretary make such a
proposal to the President and to receive, at a minimum--
(A) a clear statement of mission and related legal
definitions;
(B) an outline of the specific national security benefits
of elevating the sub-unified United States Cyber Command to a
unified command;
(C) an estimate of the cost of creating a unified United
States Cyber Command and a justification of the expenditure;
and
(D) if the Secretary considers it advisable to continue the
designation of the Commander of the United States Cyber
Command as also being the Director of the National Security
Agency--
(i) an explanation of how a single individual could serve
as a commander of a combatant command that conducts overt,
albeit clandestine, cyber operations under title 10, United
States Code, as well as the director of an intelligence
agency that conducts covert cyber operations under the
National Security Act of 1947 (50 U.S.C. 401 et seq.) in a
manner that affords deniability to the United States; and
(ii) a statement of whether the Secretary believes it is
appropriate either to appoint a line officer as the Director
of the National Security Agency or to take the unprecedented
step of appointing an intelligence officer as a unified
commander; and
(4) believes that appropriate policy foundations and
standing rules of engagement must be in place before any
decision to create a unified United States Cyber Command.

AMENDMENT NO. 3237

(Purpose: To set forth consequences for the failure of the Department
of Defense to obtain audits with an unqualified opinion on its
financial statements by fiscal year 2017)

At the end of subtitle A of title IX, add the following:

SEC. 903. FAILURE OF THE DEPARTMENT OF DEFENSE TO OBTAIN
AUDITS WITH AN UNQUALIFIED OPINION ON ITS
FINANCIAL STATEMENTS BY FISCAL YEAR 2017.

If the Department of Defense fails to obtain an audit with
an unqualified opinion on

[[Page S7199]]

its financial statements for fiscal year 2017, the following
shall take effect, effective as of the date of the issuance
of the opinion on such audit:
(1) Reorganization of responsibilities of chief management
officer.--
(A) Position of chief management officer.--Section 132a of
title 10, United States Code, is amended to read as follows:

``Sec. 132a. Chief Management Officer

``(a) In General.--(1) There is a Chief Management Officer
of the Department of Defense, appointed from civilian life by
the President, by and with the advice and consent of the
Senate.
``(2) Any individual nominated for appointment as Chief
Management Officer shall be an individual who has--
``(A) extensive executive level leadership and management
experience in the public or private sector;
``(B) strong leadership skills;
``(C) a demonstrated ability to manage large and complex
organizations; and
``(D) a proven record in achieving positive operational
results.
``(b) Powers and Duties.--The Chief Management Officer
shall perform such duties and exercise such powers as the
Secretary of Defense may prescribe.
``(c) Service as Chief Management Officer.--(1) The Chief
Management Officer is the Chief Management Officer of the
Department of Defense.
``(2) In serving as the Chief Management Officer of the
Department of Defense, the Chief Management Officer shall be
responsible for the management and administration of the
Department of Defense with respect to the following:
``(A) The expenditure of funds, accounting, and finance.
``(B) Procurement, including procurement of any enterprise
resource planning (ERP) system and any information technology
(IT) system that is a financial feeder system, human
resources system, or logistics system.
``(C) Facilities, property, nonmilitary equipment, and
other resources.
``(D) Strategic planning, and annual performance planning,
and identification and tracking of performance measures.
``(E) Internal audits and management analyses of the
programs and activities of the Department, including the
Defense Contract Audit Agency.
``(F) Such other areas or matters as the Secretary of
Defense may designate.
``(3) The head of the Defense Contract Audit Agency shall
be under the supervision of, and shall report directly to,
the Chief Management Officer.
``(d) Precedence.--The Chief Management Officer takes
precedence in the Department of Defense after the Secretary
of Defense and the Deputy Secretary of Defense.''.
(B) Conforming amendments.--
(i) Section 131(b) of title 10, United States Code, is
amended--

(I) by striking paragraph (3);
(II) by redesignating paragraph (2) as paragraph (3); and
(III) by inserting after paragraph (1) the following new
paragraph (2):

``(2) The Chief Management Officer of the Department of
Defense.''.
(ii) Section 132 of such title is amended--

(I) by striking subsection (c); and
(II) by redesignating subsections (d) and (e) as
subsections (c) and (d), respectively.

(iii) Section 133(e)(1) of such title is amended by
striking ``and the Deputy Secretary of Defense'' and
inserting ``, the Deputy Secretary of Defense, and the Chief
Management Officer of the Department of Defense''.
(iv) Such title is further amended by inserting ``the Chief
Management Officer of the Department of Defense,'' after
``the Deputy Secretary of Defense,'' each place it appears in
the provisions as follows:

(I) Section 133(e)(2).
(II) Section 134(c).

(v) Section 137a(d) of such title is amended by striking
``the Secretaries of the military departments,'' and all that
follows and inserting ``the Chief Management Officer of the
Department of Defense, the Secretaries of the military
departments, and the Under Secretaries of Defense.''.
(vi) Section 138(d) of such title is amended by striking
``the Secretaries of the military departments,'' and all that
follows through the period and inserting ``the Chief
Management Officer of the Department of Defense, the
Secretaries of the military departments, the Under
Secretaries of Defense, and the Director of Defense Research
and Engineering.''.
(C) Clerical amendment.--The table of sections at the
beginning of chapter 4 of such title is amended by striking
the item relating to section 132a and inserting the following
new item:

``132a. Chief Management Officer.''.
(D) Executive schedule.--Section 5313 of title 5, United
States Code, is amended by adding at the end the following:
``Chief Management Officer of the Department of Defense.''.
(E) Reference in law.--Any reference in any provision of
law to the Chief Management Officer of the Department of
Defense shall be deemed to refer to the Chief Management
Officer of the Department of Defense under section 132a of
title 10, United States Code (as amended by this paragraph).
(2) Jurisdiction of dfas.--
(A) Transfer to department of the treasury.--Jurisdiction
of the Defense Finance and Accounting Service (DFAS) is
transferred from the Department of Defense to the Department
of the Treasury.
(B) Administration.--The Secretary of the Treasury shall
administer the Defense Finance and Accounting Service
following transfer under this paragraph through the Financial
Management Service of the Department of the Treasury.
(C) Memorandum of understanding.--The Secretary of Defense
and the Secretary of the Treasury shall jointly enter into a
memorandum of understanding regarding the transfer of
jurisdiction of the Defense Finance and Accounting Service
under this paragraph. The memorandum of understanding shall
provide for the transfer of the personnel and other resources
of the Service to the Department of the Treasury and for the
assumption of responsibility for such personnel and resources
by the Department of the Treasury.
(D) Construction.--Nothing in this paragraph shall be
construed as terminating, altering, or revising any
responsibilities or authorities of the Defense Finance and
Accounting Service (other than responsibilities and
authorities in connection with the exercise of jurisdiction
of the Service following transfer under this paragraph).

amendment no. 3243

(Purpose: To commend the Enduring Strategic Partnership Agreement
between the United States of America and the Islamic Republic of
Afghanistan)

At the end of subtitle B of title XII, add the following:

SEC. 1221. SENSE OF CONGRESS COMMENDING THE ENDURING
STRATEGIC PARTNERSHIP AGREEMENT BETWEEN THE
UNITED STATES AND AFGHANISTAN.

(a) Findings.--Congress makes the following findings:
(1) The United States and Afghanistan have been allies in
the conflict against al Qaeda and its affiliates for over a
decade, with the shared goal of ensuring that Afghanistan is
never again a sanctuary for al Qaeda.
(2) The United States and Afghanistan are committed to the
framework agreed to at the North Atlantic Treaty Organization
(NATO) Summit in Lisbon in 2010, and reaffirmed at the NATO
Summit in Chicago in 2012, for the transition from coalition
forces to the Afghan National Security Forces of lead
responsibility for security throughout Afghanistan by the end
of 2014.
(3) In June 2011, President Barack Obama said, ``What we
can do, and will do, is build a partnership with the Afghan
people that endures--one that ensures that we will be able to
continue targeting terrorists and supporting a sovereign
Afghan government.''
(4) In November 2011, a traditional loya jirga in Kabul
declared that ``strategic cooperation with the United States
of America, which is a strategic ally of the people and
government of Afghanistan, is considered important in order
to ensure political, economic, and military security'' and
also stated, ``Signing a strategic cooperation document with
the United States conforms with the national interest of
Afghanistan and is of significant importance.''
(5) On May 2, 2012, President Obama and President Hamid
Karzai signed the Enduring Strategic Partnership Agreement
Between the United States of America and the Islamic Republic
of Afghanistan.
(6) At the signing of the Enduring Strategic Partnership
Agreement, President Obama said, ``Today we're agreeing to be
long-term partners in combating terrorism, and training
Afghan security forces, strengthening democratic institutions
and supporting development, and protecting human rights of
all Afghans. With this agreement, the Afghan people, and the
world, should know that Afghanistan has a friend and a
partner in the United States.''
(7) At a May 20, 2012, bilateral meeting with President
Karzai at the NATO Summit in Chicago, President Obama said
that the Enduring Strategic Partnership Agreement ``reflects
a future in which two sovereign nations--the United States
and Afghanistan--are operating as partners, to the benefit of
our countries' citizens, but also for the benefit of peace
and security and stability in the region and around the
world''.
(8) President Karzai said at the May 20, 2012, bilateral
meeting with President Obama, ``Mr. President, the
partnership that we signed a few weeks ago in Kabul has
turned a new page in our relations. And the new page is a
page of two sovereign countries working together for the
mutual interests--peace and security and in all other
areas.''
(9) On May 26, 2012, the Wolesi Jirga, the lower house of
the Afghan parliament, approved the Agreement by a vote of
191-7 with 2 abstentions.
(10) On June 3, 2012, the Meshrano Jirga, the upper house
of the Afghan parliament, approved the Agreement by a vote of
67-13.
(11) On July 8, 2012, at the Tokyo Conference on
Afghanistan, the international community and the Government
of Afghanistan reaffirmed their partnership in the economic
growth and development of Afghanistan through a process of
mutual commitments and accountability.
(12) On July 4, 2012, the Enduring Strategic Partnership
Agreement entered into force.
(b) Sense of Congress.--It is the sense of Congress that--
(1) the members of the United States Armed Forces,
intelligence community, and diplomatic and development
community of the United States are to be commended for their
dedicated efforts and sacrifices in support of military and
stability operations in

[[Page S7200]]

Afghanistan that have helped strengthen security in
Afghanistan, laid the foundation for transition to a long-
term partnership between the United States and a sovereign
Afghanistan, and supported the Government and people of
Afghanistan as they continue to build their capacity to
effectively and justly govern;
(2) the United States negotiating team for the Enduring
Strategic Partnership Agreement, including the United States
Embassy personnel in Kabul under the leadership of Ambassador
Ryan Crocker, is to be commended for its committed diplomatic
efforts;
(3) the Governments of the United States and Afghanistan
are to be commended for concluding the Enduring Strategic
Partnership Agreement;
(4) Congress supports the objectives and principles of the
Enduring Strategic Partnership Agreement, including
protecting and promoting shared democratic values, advancing
long-term security, reinforcing regional security and
cooperation, fostering social and economic development,
upholding the rights of women and minorities, and
strengthening institutions and governance in Afghanistan;
(5) it is essential that the Government and people of
Afghanistan fulfill Afghanistan's international commitments
as agreed at the Tokyo Conference of July 2012, the Bonn
Conference of December 2011, the Kabul Conference of July
2011, and other venues to combat corruption, protect the
equal rights of all citizens of Afghanistan and enforce the
rule of law, hold free and fair elections in 2014, and build
inclusive and effective institutions of democratic
governance;
(6) a key national security interest of the United States
is to maintain a long-term political, economic, and military
relationship with Afghanistan, including a limited presence
of United States Armed Forces for the purpose of training,
advising, and supporting Afghan National Security Forces and
cooperating on shared counterterrorism objectives;
(7) the negotiation and conclusion of a Bilateral Security
Agreement, as called for in the Enduring Strategic
Partnership Agreement, will provide a fundamental framework
for the long-term security relationship between the United
States and Afghanistan; and
(8) Congress has a critical role in continuing to provide
the support and assistance necessary to achieve the goals of
the Enduring Strategic Partnership Agreement.

amendment no. 3256

(Purpose: To require reports from the Comptroller General of the United
States on certain aspects of joint professional military education)

At the end of subtitle F of title V, add the following:

SEC. 561. COMPTROLLER GENERAL OF THE UNITED STATES REPORTS ON
JOINT PROFESSIONAL MILITARY EDUCATION MATTERS.

(a) Report on Review of Military Education Coordination
Council Report.--
(1) Review of methodology.--The Comptroller General of the
United States shall review the methodology used by the
Military Education Coordination Council in compiling the
report on joint professional military education that is to be
submitted to the Director of Joint Force Development by March
1, 2013, pursuant to the Joint Staff Memorandum, Joint Staff
Review, dated July 16, 2012. The review shall include an
examination of the analytical approach used by the Council
for that report, including the types of information
considered, the cost savings identified, the benefits of
options considered, the time frames for implementation, and
transparency.
(2) Report.--Not later than 90 days after receiving from
the Director of Joint Force Development the report described
in paragraph (1), the Comptroller General shall submit to the
Committees on Armed Services of the Senate and the House of
Representatives a report on the review under paragraph (1) of
the report described in that paragraph. The report of the
Comptroller General under this paragraph shall set forth the
following:
(A) The results of the review under paragraph (1).
(B) Such recommendations as the Comptroller General
considers appropriate in light of the results of the review.
(b) Report on Joint Professional Military Education
Research Institutions.--
(1) Report required.--Not later than January 31, 2014, the
Comptroller General of the United States shall submit to the
congressional defense committees a report setting forth the
assessment by the Comptroller General of the work performed
by joint professional military education research
institutions in support of professional military education
and the broader mission of the Department of Defense, the
military departments, and the Defense Agencies.
(2) Elements.--The report required by paragraph (1) shall
include an assessment of the following:
(A) The systems, mechanisms, and structures within the
senior and intermediate joint professional military education
colleges and universities for oversight, governance, and
management of the joint professional military education
research institutions, including systems, mechanisms, and
structures relating to the development of policies and
budgets for research.
(B) The factors contributing to and the extent of growth in
the number and size of joint professional military education
research institutions since 2000.
(C) The causes and extent of cost growth at joint
professional military education research institutions since
2000.
(D) The focus of research activity conducted by the joint
professional military education research institutions, and
the extent to which each joint professional military
education research institution performs a unique research
function or engages in similar or duplicative efforts with
other components or elements of the Department of Defense.
(E) The measures of effectiveness used by the joint
professional military education research institutions, the
senior and intermediate joint professional military education
colleges and universities, and other oversight entities to
evaluate the performance of the joint professional military
education research institutions in meeting established goals
or objectives.
(3) Definitions.--In this subsection:
(A) The term ``joint professional military education
research institutions'' means subordinate organizations
(including centers, institutes, and schools) under the senior
and intermediate joint professional military education
colleges and universities for which research is the primary
mission or reason for existence.
(B) The term ``senior and intermediate joint professional
military education colleges and universities'' means the
following:
(i) The National Defense University.
(ii) The Army War College.
(iii) The Navy War College.
(iv) The Air University.
(v) The Air War College.
(vi) The Marine Corp University.

amendment no. 3260

(Purpose: To prohibit the use of funds to enter into contracts or
agreements with Rosoboronexport)

At the end of subtitle E of title X, add the following:

SEC. 1048. PROHIBITION ON FUNDS TO ENTER INTO CONTRACTS OR
AGREEMENTS WITH ROSOBORONEXPORT.

(a) Prohibition.--None of the funds authorized to be
appropriated by this Act may be used to enter into a
contract, memorandum of understanding, or cooperative
agreement with, to make a grant to, or to provide a loan or
loan guarantee to Rosoboronexport.
(b) National Security Waiver Authority.--The Secretary of
Defense may waive the applicability of subsection (a) if the
Secretary determines that such a waiver is in the national
security interests of the United States with respect to the
capacity of the Afghan National Security Forces (ANSF).

amendment no. 3261

(Purpose: To require the submittal to Congress of risk assessments on
changes in United States troop levels in Afghanistan)

At the end of subtitle C of title XV, add the following:

SEC. 1536. SUBMITTAL TO CONGRESS OF RISK ASSESSMENTS ON
CHANGES IN UNITED STATES TROOP LEVELS IN
AFGHANISTAN.

(a) Submittal Required.--Not later than 30 days after a
decision by the President to change the levels of United
States Armed Forces deployed in Afghanistan, the Chairman of
the Joint Chiefs of Staff shall, through the Secretary of
Defense, submit to the congressional defense committees a
detailed assessment of the risk to the United States mission
and interests in Afghanistan as the change in levels is
implemented.
(b) Elements.--The risk assessment under subsection (a) on
a change in levels of United States Armed Forces in
Afghanistan shall include the following:
(1) A description of the current security situation in
Afghanistan.
(2) A description of any anticipated changes to United
States military operations and objectives in Afghanistan
associated with such change in levels.
(3) An identification and assessment of any changes in
United States military capabilities, including manpower,
logistics, intelligence, and mobility support, in Afghanistan
associated with such change in levels.
(4) An identification and assessment of the risk associated
with any changes in United States mission, military
capabilities, operations, and objectives in Afghanistan
associated with such change in levels.
(5) An identification and assessment of any capability gaps
within the Afghanistan security forces that will impact their
ability to conduct operations following such change in
levels.
(6) An identification and assessment of the risk associated
with the transition of combat responsibilities to the
Afghanistan security forces following such change in levels.
(7) An assessment of the impact of such change in levels on
coalition military contributions to the mission in
Afghanistan.
(8) A description of the assumptions to be in force
regarding the security situation in Afghanistan following
such change in levels.
(9) Such other matters regarding such change in levels as
the Chairman considers appropriate.

[[Page S7201]]

amendment no. 3271

(Purpose: To promote the development of an adequate, reliable, and
stable supply of critical and essential minerals in the United States
in order to strengthen and sustain the military readiness, national
security, and critical infrastructure of the United States)

At the end of subtitle D of title XIV, add the following:

SEC. 1433. POLICY OF THE UNITED STATES WITH RESPECT TO A
DOMESTIC SUPPLY OF CRITICAL AND ESSENTIAL
MINERALS.

(a) Policy of the United States.--It is the policy of the
United States to promote the development of an adequate,
reliable, and stable supply of critical and essential
minerals in the United States in order to strengthen and
sustain the military readiness, national security, and
critical infrastructure of the United States.
(b) Coordination of Development of Supply of Critical and
Essential Minerals.--To implement the policy described in
subsection (a), the President shall, acting through the
Executive Office of the President, coordinate the actions of
the appropriate federal agencies to identify opportunities
for and to facilitate the development of resources in the
United States to meet the critical and essential mineral
needs of the United States.

amendment no. 3275

(Purpose: To express the sense of the Senate on the situation in the
Senkaku Islands)

At the end of subtitle D of title XII, add the following:

SEC. 1246. SENSE OF THE SENATE ON THE SITUATION IN THE
SENKAKU ISLANDS.

It is the sense of the Senate that--
(1) the East China Sea is a vital part of the maritime
commons of Asia, including critical sea lanes of
communication and commerce that benefit all nations of the
Asia-Pacific region;
(2) the peaceful settlement of territorial and
jurisdictional disputes in the East China Sea requires the
exercise of self-restraint by all parties in the conduct of
activities that would complicate or escalate disputes and
destabilize the region, and differences should be handled in
a constructive manner consistent with universally recognized
principles of customary international law;
(3) while the United States takes no position on the
ultimate sovereignty of the Senkaku islands, the United
States acknowledges the administration of Japan over the
Senkaku Islands;
(4) The unilateral actions of a third party will not affect
the United States' acknowledgement of the administration of
Japan over the Senkaku Islands;
(5) the United States has national interests in freedom of
navigation, the maintenance of peace and stability, respect
for international law, and unimpeded lawful commerce;
(6) the United States supports a collaborative diplomatic
process by claimants to resolve territorial disputes without
coercion, and opposes efforts at coercion, the threat of use
of force, or use of force by any claimant in seeking to
resolve sovereignty and territorial issues in the East China
Sea;
(7) the United States reaffirms its commitment to the
Government of Japan under Article V of the Treaty of Mutual
Cooperation and Security that ``[e]ach Party recognizes that
an armed attack against either Party in the territories under
the administration of Japan would be dangerous to its own
peace and safety and declares that it would act to meet the
common danger in accordance with its constitutional
provisions and processes''.

amendment no. 3279

(Purpose: To express the sense of Congress that external and
independent oversight of the National Nuclear Security Administration
by the Department of Energy is critical to the mission of protecting
the United States nuclear security enterprise)

At the end of title XXXI, add the following:

Subtitle D--Other Matters

SEC. 3141. SENSE OF CONGRESS ON OVERSIGHT OF THE NUCLEAR
SECURITY ENTERPRISE.

(a) Findings.--Congress makes the following findings:
(1) In 2000, the National Nuclear Security Administration
was established as an independent entity within the
Department of Energy to manage and secure the nuclear weapons
stockpile of the United States and to manage nuclear
nonproliferation and naval reactor programs.
(2) Serious security and health incidents continue to occur
at sites of the National Nuclear Security Administration.
(3) In September 2012, an official of the Government
Accountability Office testified to Congress that lax
laboratory attitudes toward safety procedures, laboratory
inadequacies in identifying and addressing safety problems
with appropriate corrective actions, and inadequate oversight
by site offices of the National Nuclear Security
Administration were responsible for nearly 100 safety
incidents since 2000.
(4) On July 28, 2012, three unarmed individuals compromised
security at the Y-12 National Security Complex in Oak Ridge,
Tennessee, and according to the Government Accountability
Office, ``gained access to the protected security area
directly adjacent to one of the nation's most critically
important nuclear weapons-related facilities''.
(5) In June 2006, hackers attacked an unclassified computer
system at the National Nuclear Security Administration's
Service Center in Albuquerque, New Mexico, and gained access
to a file containing the names and social security numbers of
more than 1,500 employees of the National Nuclear Security
Administration.
(6) As early as February 2005, the Inspector General of the
Department of Energy identified problems with the retrieval
of badges from terminated employees at Los Alamos National
Laboratory and other sites of the National Nuclear Security
Administration.
(7) In 2004, a pattern of safety and security incidents
that occurred over the course of a year prompted the stand-
down of Los Alamos National Laboratory.
(8) The National Nuclear Security Administration,
independent of the safety and security reform efforts of the
Department of Energy, has launched an overhaul of its
contracting oversight, placing an emphasis on contractor
self-policing through an untested ``contractor assurance''
approach.
(9) The Government Accountability Office has given the
contractor administration and project management capabilities
of the National Nuclear Security Administration a ``high
risk'' designation and found there to be insufficient
qualified Federal acquisition professionals to ``plan,
direct, and oversee project execution''.
(b) Sense of Congress.--It is the sense of Congress that--
(1) there is a need for strong, independent oversight of
the United States nuclear security enterprise;
(2) any attempt to reform oversight of the nuclear security
enterprise that transfers oversight from the Department of
Energy to the National Nuclear Security Administration,
reduces protections for worker health and safety at
facilities of the National Nuclear Security Administration to
levels below the standards of the Department of Energy, or
transfers construction appropriations for the nuclear
security enterprise from the Department of Energy
appropriation account to the military construction
appropriation account, should be carefully evaluated;
(3) the Office of Health, Safety, and Security of the
Department of Energy, which reports to the Secretary of
Energy but is also accountable for routinely reporting to
Congress on the performance with respect to safety and
security of the Department, including the National Nuclear
Security Administration, and the role of that Office in
overseeing safety and security at the National Nuclear
Security Administration, should not be diminished but should
be routinely evaluated;
(4) any future modifications to the management or structure
of the nuclear security enterprise should be done in a way
that maintains or increases oversight of critical
construction, security, and acquisition capabilities;
(5) to the extent possible, oversight of programs of the
National Nuclear Security Administration by the Department of
Defense should increase to ensure current and future
warfighting requirements are met; and
(6) the Nuclear Weapons Council should provide proper
oversight in the execution of its responsibilities under
section 179 of title 10, United States Code.

The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. I ask unanimous consent that regarding these amendments,
which I believe by the Chair's ruling have been--are to be considered
en bloc, also that the motion to reconsider be laid on the table.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. I thank the Presiding Officer. My understanding is now
that the Senate floor is open to debate. Hopefully people who want to
debate on these four amendments will debate tonight so the 2 minutes
tomorrow will be adequate.
I yield the floor.
The PRESIDING OFFICER. The Senator from New Jersey.
Mr. MENENDEZ. Mr. President, if I could ask the distinguished
chairman a question, I would assume, then, that at this point I would
not have to call up the amendment? That would be in order tomorrow?
Mr. LEVIN. No.

Amendment No. 3232

Mr. MENENDEZ. Mr. President, I will ask to call up my amendment, the
only amendment I have pending with Senator Kirk.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will report.
The assistant legislative clerk read as follows:

The Senator from New Jersey [Mr. Menendez], for himself and
Mr. Kirk, and Mr. Lieberman, proposes an amendment numbered
3232.

Mr. MENENDEZ. I ask unanimous consent further reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.

[[Page S7202]]

(The text of the amendment is printed in today's Record under ``Text
of Amendments.'')
Mr. MENENDEZ. Mr. President, first I appreciate where we are. This is
a bipartisan amendment. It is an amendment with Senator Kirk and
Senator Lieberman. It is a continuing perfection of sanctions as it
relates to Iran that has been unanimously passed by this body
approximately a year ago last December. Iran has set its sights on
achieving nuclear weapons capability and this would not be in the
national security interests of the United States because we have tens
of thousands of our troops who would be in harm's way if Iran had
nuclear weapons.
It would also not be in our national security interests because we
clearly have to ensure that the Straits of Hormuz remain open and
accessible and we would be obligated under our NATO agreements to
respond should a Shabab missile be launched against one of our allies.
Of course a Shabab missile is an Iranian missile that has the type of
flight and capability to do so.
It is not in our national security interests because the last thing
we need is a nuclear arms race in the tinderbox of the world where
countries, for example, such as Turkey and Saudi Arabia would feel
obligated to follow suit if Iran were to become a nuclear power.
For all of those reasons among others, it would not be in the
national security interests of the United States. That achievement
would jeopardize U.S. national security interests, pose an existential
threat to the state of Israel, and would result in a nuclear arms race
that would further destabilize the region.
The news out of Iran is dire. Just this week the Director of the
International Atomic Energy Administration told the press Iran has not
slowed its enrichment activities. The International Atomic Energy
Administration also suspects that Iran has conducted live tests of
conventional explosives that could be used to detonate a nuclear weapon
at the Parchin military base--a facility the Iranians have denied
access to by the International Atomic Energy Administration.
Between May and August of this year, Iran doubled the number of
centrifuges at its fortified Fordow facility, buried deep inside a
mountain to protect it against strikes. Iran now has over 2,140
centrifuges for enriching uranium and it continues to enrich to 20
percent. Iran claims it needs this higher grade uranium for its
peaceful nuclear program, but a country with peaceful ambitions doesn't
enrich uranium in defiance of U.N. Security Council resolutions. It
doesn't refuse to disclose its operations. It doesn't hide them inside
a mountain. A peaceful nation doesn't breach the international
inspections regime compelled by the Nuclear Nonproliferation Treaty,
and a peaceful nation is not one that pursues weaponization of missiles
that can reach countries far beyond its borders.
The sanctions passed by this body unanimously last December are
having a significant impact. The Iranian currency, the rial, has lost
much of its value, and Iran's oil exports have dropped to a new daily
low of 860,000 barrels per day, which is over 1 million barrels of oil
per day less than 1 year ago.
Through our sanctions and the combined effort of the European Union,
we have forced the Iranians back to the negotiating table. By passing
these additional measures--requiring the cessation of sales to and
transactions within Iranian sectors that support proliferation,
including energy, shipping, shipbuilding, and port sectors, as well as
anyone on our specially designated national list--we will send a
message to Iran that the time for confidence-building measures is over.
We do not want the Iranian regime simply to believe they can toughen
out the sanctions. This sends a clear message that toughening it out
will not work and it will only get worse.
If Iran is serious about wanting to reach a diplomatic solution, then
it must quickly and fully implement U.N. Security Council resolutions.
It must stop enriching uranium, permit removal from its territory of
enriched uranium, close the Fordow enrichment facility, and submit to a
robust inspections regime that includes inspections of the Parchin
military facility.
Clearly, sanctions are not the ultimate goal. They are only a means
to a clear end, in this case preventing Iran from becoming the next
nuclear state and an existential threat to our ally, the State of
Israel. Let me highlight the major provisions of this amendment.
First, this amendment designates Iran's energy, port, shipping, and
shipbuilding sectors as entities of proliferation because of the role
they play in supporting and funding Iran's obvious proliferation
activities. With the exception of permissible petroleum transactions
under the existing sanctions regime from countries that have
significantly reduced their purchases of oil from Iran, these sectors
will now be off limits. We will sanction any transactions with these
sectors and we will block the property--and any third party--that
engages in transactions with them.
Second, we impose sanctions on persons selling or supplying a defined
list of commodities to Iran--commodities that are relevant to Iran's
shipbuilding and nuclear sectors such as graphite, aluminum, steel,
metallurgical coal, and software for integrating industrial processes.
We also will prevent Iran from circumventing sanctions on its Central
Bank that this Congress and the President signed by receiving payments
in precious metals.
Third, we designate the Islamic Republic of Iran Broadcasting entity
and its President as human rights abusers for their broadcasting of
forced television confessions and show trials, thereby blocking their
assets and preventing others from doing business with the IRIB.
To address concerns about access to humanitarian goods in Iran, which
is a very real and serious concern, we have provided for exceptions for
the provision and sale to Iran of food, agricultural commodities,
medicine, medical devices, and other humanitarian goods. We have
imposed new human rights sanctions on those in Iran who are engaged in
corruption or the diversion of resources related to these goods and
that are preventing them from reaching the Iranian people.
Our message is clear. The window is closing. The time for the waiting
game is over. Yes, our sanctions are having a demonstrable effect on
the Iranian economy, but Iran is still working just as hard to develop
nuclear weapons. Iran has to decide what it will do. Will it continue
down the path to proliferation and risk further crushing economic
sanctions or will it end the madness and negotiate a responsible end to
its nuclear ambition? The waiting game is over and, in the end, one way
or the other, Iran will not be allowed to acquire a nuclear weapon that
could threaten the national interests and security interests of the
United States, Israel, the region, and the world.
I wish to thank Senator Kirk, whom we have worked with on this issue
for quite some time, as well as Senator Lieberman, Senator Casey, and
many others who have shared their interests and their views, and we
have tried to incorporate those views. I hope that tomorrow when we
cast a vote, it will be the type of unanimous vote this Senate passed
nearly 1 year ago, that ultimately sends a very clear message to the
Iranians that if they seek to evade, if they seek to avoid, if they
think they can wait out the process, they are wrong. That is, in
essence, what we are doing through this amendment. It is, in essence,
why we believe it is so critical to move forward, to send a very clear
message to the Iranians.
This is about the national security of the United States. It is the
existential challenge to the State of Israel, our ally, and it is the
best of a bipartisan effort that we have seen in this Senate.
With that, I look forward to tomorrow's vote.
I yield the floor and note the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. McCAIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Begich). Without objection, it is so
ordered.
Mr. McCAIN. Mr. President, what is the parliamentary situation?
The PRESIDING OFFICER. Menendez amendment No. 3232 is pending.
Mr. McCAIN. All right. I intend to speak on that shortly.

[[Page S7203]]

I see the chairman is here.
Mr. LEVIN. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. LEVIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. Mr. President, what Senator McCain and I and our staffs
are going to attempt to do tomorrow morning is that shortly after the
fourth vote that is now scheduled, the fourth rollcall vote, we hope to
be able to announce a finite list of amendments which would need to be
disposed of before completion of this bill. That is going to be our
goal, and we are going to repeat that goal the first thing in the
morning. But it is important people know that. That is now something
that is important that we do because we expect there will be a cloture
motion tomorrow that will be filed, and if we can put together a finite
list of amendments that need to be disposed of before final passage of
this bill, that step may be unnecessary.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, I rise to say I think we have made great
progress. I think we have addressed the major issues concerning this
legislation, although there are certainly other issues our colleagues
feel are very important. But we should have reached a point now after 3
days that we put together a list of amendments. We can decide whether
those amendments can be agreed upon, dropped or voted on. But it is
time we put that list together and, obviously, with that being
accomplished, we could get this thing wrapped up without having to go
through the process of cloture and the intervening hours and all the
parliamentary procedures that are embodied in that process.
I thank the chairman and thank the presiding officer.
Mr. LEVIN. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. LEVIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

Amendment No 3199, as Modified

Mr. LEVIN. Mr. President, I ask unanimous consent that
notwithstanding the adoption of Durbin amendment No. 3199, it be
modified with the changes at the desk.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment (No. 3199) was modified, is as follows:

At the end of subtitle D of title XII, add the following:

SEC. 1246. IMPOSITION OF SANCTIONS WITH RESPECT TO SUPPORT
FOR THE REBEL GROUP KNOWN AS M23.

(a) Blocking of Assets.--The Secretary of the Treasury
shall, pursuant to the International Emergency Economic
Powers Act (50 U.S.C. 1701 et seq.) or Executive Order 13413
(74 Fed. Reg. 64105; relating to blocking property of certain
persons contributing to the conflict in the Democratic
Republic of the Congo), block and prohibit all transactions
in all property and interests in property of a person
described in subsection (c) if such property and interests in
property are in the United States, come within the United
States, or are or come within the possession or control of a
United States person.
(b) Visa Ban.--The Secretary of State shall deny a visa to,
and the Secretary of Homeland Security shall exclude from the
United States, any alien who is a person described in
subsection (c).
(c) Persons Described.--A person described in this
subsection is a person that the President determines
provides, on or after the date of the enactment of this Act,
significant financial, material, or technological support to
M23.
(d) Waiver.--The President may waive the application of
this section with respect to a person if the President
determines and reports to the appropriate congressional
committees that the waiver is in the national interest of the
United States.
(e) Termination of Sanctions.--The President may terminate
sanctions imposed under this section with respect to a person
on and after the date on which the President determines and
reports to the appropriate congressional committees that the
person has terminated the provision of significant financial,
material, and technological support to M23.
(f) Termination of Section.--This section shall terminate
on the date on which the President determines that M23 is no
longer a significant threat to peace and security in the
Democratic Republic of the Congo.
(g) Definitions.--In this section:
(1) Appropriate congressional committees.--The term
``appropriate congressional committees'' means--
(A) the Committee on Banking, Housing, and Urban Affairs
and the Committee on Foreign Relations of the Senate; and
(B) the Committee on Financial Services and the Committee
on Foreign Affairs of the House of Representatives.
(2) M23.--The term ``M23'' refers to the rebel group known
as M23 operating in the Democratic Republic of the Congo that
derives its name from the March 23, 2009, agreement between
the Government of the Democratic Republic of the Congo and
the National Congress for the Defense of the People (or any
successor group).
(3) United states person.--The term ``United States
person'' means--
(A) an individual who is a United States citizen or an
alien lawfully admitted for permanent residence to the United
States; or
(B) an entity organized under the laws of the United States
or of any jurisdiction within the United States.

Ms. SNOWE. Mr. President, my colleague Senator Landrieu and I have an
amendment to remove inequities that exist in the women-owned small
business contracting program, when compared to other socioeconomic
programs.
As former chair and now ranking member of the Senate Committee on
Small Business and Entrepreneurship, I have long championed women
entrepreneurship and have urged both past and present administrations
to implement the woman-owned small business, WOSB, Federal contracting
program, which was enacted into law 10 years ago. On March 4, 2010, the
Small Business Administration, SBA, finally proposed a workable rule to
implement the women's procurement program. And I am pleased to report
that today there is a functional WOSB contracting program, however, the
program lacks the critical elements that the SBA's 8(a), historically
underutilized business zones, and the service-disabled veteran-owned
government contracting programs include.
To remedy this, our bipartisan amendment will help provide tools
women need to compete fairly in the Federal contracting arena by
eliminating a restriction on the dollar amount of a contract that a
WOSB can compete for, thus putting them on a level playing field with
the other socioeconomic contracting programs.
Women-owned small businesses have yet to receive their fair share of
the Federal marketplace. In fact, our government has never achieved its
goal of 5 percent of contracts going to WOSBs, achieving only 3.98
percent in fiscal year 2011. This amendment would greatly assist
Federal agencies in achieving the small business goaling requirement
for WOSBs.
Mr. President, I also wish to speak to an amendment to S. 3254, the
National Defense Authorization Act, to cease Federal involvement in the
National Veterans Business Development Corporation.
This bipartisan amendment would cease, once and for all, Federal
involvement in the National Veterans Business Development Corporation,
also known as The Veterans Corporation or simply TVC. Let me begin by
thanking the bill's cosponsors, Small Business Committee Chair Mary
Landrieu, former Small Business Committee Chair John Kerry and Senator
Tom Coburn. Senator Coburn, as most in this body will recognize, is a
true leader in efforts to streamline the Federal government. Recently
he spoke with us about ideas for federal entities or programs that
could be eliminated and we readily provided TVC as an example of an
entity that we had already identified that the Federal government
should sever its ties with.
I want to say at the outset that an amendment, with identical text as
this one, passed the Senate by a vote of 99-0 in May of 2011, but the
bill it was attached to did not pass. We are introducing this repeal as
a stand-alone bill because TVC has been ineffective and controversial
since its inception as part of the Veterans Entrepreneurship and Small
Business Development Act--P.L. 106-50--in 1999. In December of 2008,
former Small Business Committee Chairman Kerry and I investigated TVC,
and issued a report detailing the organization's blatant mismanagement
and wasting of taxpayers' dollars.
The report found, among other things, that TVC (a) failed to support

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Veteran Business Resource Centers; (b) had wasteful programs; (c)
lacked outcomes-based measurements; (d) provided it's employees with
unacceptably high executive compensation; (e) engaged in dubious
expenditures, and (f) failed to properly fundraise.
For instance, our report concluded that TVC had spent only 15 percent
of the federal funding that it had received on veterans business
resource centers, which TVC was required to establish and maintain
under law. In FY 2008, the percentage dropped to about 9 percent. We
also found that TVC's executives received unacceptably high levels of
compensation given the organization's limited resources and reach.
While an average of 15 percent of TVC's federally appropriated funds
went to the Centers, 22 percent of TVC's FY 2007 federal appropriation
dollars were spent on its top two executives' compensation packages
alone. Moreover, the organization miserably failed to fundraise--which
was required by law in order for it to become self-sufficient--and
during fiscal years 2005 through 2007, TVC leaders spent $2.50 for
every $1.00 they raised through the organization's fundraising
efforts--almost entirely at the taxpayers' expense. Additionally,
through broad decision-making powers granted to TVC's executive
committee under the organization's bylaws, the committee approved a
number of measures without proper approval or ratification form the
full Board, including $40,000 in employee bonuses in one year alone.
Since the issuing of the Small Business Committee's report, Congress
has appropriated no further funding for TVC, and the Small Business
Administration has incorporated the Veteran Business Resource Centers
that TVC previously funded into its existing network of Veteran
Business Outreach Centers. These moves were publically supported by a
variety of veteran service organizations, including the American Legion
and the Veterans of Foreign Wars (VFW). For instance, in August of
2008, the American Legion passed a resolution at its national
convention, Resolution No. 223, stating that the Legion ``no longer
support[s] the continuing initiatives or existence of the national
Veterans Business Development Corporation.''
At present, TVC is still Federally chartered. At the same time, it
receives no Federal funds, has no department or agency oversight. In
light of everything I have discussed, it is my belief that the Federal
government must take the next step and fully sever all ties with the
organization. I ask my colleagues to support this bipartisan amendment.
Ms. COLLINS. Mr. President, I rise in support of the Fiscal Year 2013
National Defense Authorization Act. This bill represents a bipartisan
commitment to ensuring that our brave men and women in uniform have the
resources, equipment, and support they require to defend the interests
of the United States around the globe.
I wish to commend Chairman Levin and Ranking Member McCain for their
efforts.
This bill represents a prudent path forward for the Department of
Defense. But it is a path that could be shortly undermined if a
compromise is not reached to avert the impending self-inflicted crisis
of sequestration. Without action, sequestration could spell disaster
for many of the programs that we would authorize through this bill. I
stand ready to work with all my colleagues, on both sides of the aisle,
to correct the short-sighted policy of sequestration and determine a
sustainable way forward for our country.
I am pleased this bill recognizes the importance of shipbuilding to
our Nation's defense, authorizing $778 million more than the
administration's fiscal year 2013 request for Navy ships.
While the total annual shipbuilding budget is less than what the
United States pays each month on interest to service the national debt,
the ships built by the Navy represent such an important part of our
national military strategy. The Navy's fleet, as an instrument of
national policy, has a positive effect upon global security that far
exceeds the percentage of the budget it represents.
This bill authorizes multiyear procurement authority for both the
Virginia-class submarine program and for up to ten Arleigh Burke-class
destroyers. The two programs are projected to achieve savings of 14
percent and 9 percent respectively, when compared to the cost of annual
contracting.
I congratulate both the chairman and ranking member for their
willingness to direct the Navy to make good on cost-effective planning
and, as a result, to increase the size of the fleet. For as we have
heard this year in the testimony of virtually every combatant
commander, the importance of the maritime environment continues to grow
with each passing year.
As our Nation and our military look to the Western Pacific, that
trend is sure to continue. Events this year in the South China Sea,
which saw a disconcerting maritime standoff between the Philippines and
the People's Republic of China, highlight just how important the
maritime environment is to global security. Although thankfully the
crisis abated, the ability of the Navy to respond with forward-deployed
multimission platforms capable of operating in anti-access and area-
denial environments must be maintained. Moreover, we must continue to
make the necessary investments in both our public and private shipyards
to allow for a strong domestic shipbuilding and ship repair industrial
base.
I am proud that my own State of Maine contributes so much to the
strength of our Navy. Maine, after all, has a proud maritime legacy.
Tens of thousands of Mainers earn their living from the sea, as
commercial fishermen or lobstermen, as merchant sailors, as Coast
Guardsmen or Navy Sailors, as part of Maine's tourist industry, or as
workers at Maine's public and private shipyards.
Bath Iron Works, a private shipyard and Maine's largest private
employer, has been building ships for the Navy since 1893, and the
shipyard continues to be known by the phrase ``Bath built is best
built.''
Portsmouth Naval Shipyard, in Kittery, ME, is one of only four public
shipyards that remain in the United States, and conducts repair and
refueling work on nuclear submarines. Both of the yards, along with the
other public and private yards across the country, are truly national
strategic assets, and the workers in these yards are the world's
leading experts in ship construction and repair. As Chinese yards
continue to churn out modern warships, and as the Chinese fleet
continues to expand, we cannot allow any of the capabilities
represented by our shipyards to atrophy.
Given the events of this month in the Middle East, I am pleased this
bill also authorizes important additional funding for the Iron Dome
program and cooperative programs with the State of Israel. As the
Senate has affirmed time and again, most recently on November 15 when
we passed S. Res. 599 introduced by Senator Gillibrand, Israel has an
inherent right to act in self defense. In that resolution, the Senate
expressed our unwavering commitment to Israel's security--a security
which unfortunately continues to be threatened.
While I commend the efforts undertaken by those in the Middle East
and by Secretary Clinton to achieve the recent ceasefire, we must
continue to make the investments necessary to guarantee Israel's
security. I can think of no better investment than the Iron Dome
system, which had a success rate of 80-90 percent against the hundreds
of rockets fired into Israel's borders.
And while Iron Dome protects the State of Israel, we must also look
at how to better secure the United States, particularly those states on
the East Coast, from the threat of a missile attack from rogue regimes
in the Middle East. According to the Pentagon's Annual Report on the
Military Power of Iran, parts of which were released in July, Iran
could produce missiles capable of reaching the U.S. within 3 years.
To address this threat, Senators Lieberman, Ayotte, and I have filed
an amendment which would require the Department to conduct an
Environmental Impact Statement and create a plan for establishing a
missile defense site on the East Coast of the United States. Such a
site, whether sea-based or on land, located in the northeast tip of our
country, could better protect the East Coast from an intercontinental
ballistic missile attack. Beginning an EIS now, a task which could take
up to 18-24 months, is a prudent measure to preserve our options in the
future.
Just as we must protect the East Coast, we must also provide the
military the tools to protect the mental

[[Page S7205]]

and physical wellbeing of military personnel. This year, the suicide
rate amongst Active-Duty personnel has continued to soar. On average,
more than one soldier, sailor, airman, or Marine has taken their own
life every day this year. That is a tragedy of the first degree.
For every servicemember who dies in battle, 25 veterans die by their
own hands. Not only have more military personnel killed themselves than
were killed in Afghanistan this year, but the rate of suicides in the
military significantly exceeds the rate of suicides in the general
population. Veterans, many of whom are dealing with financial or
posttraumatic stress, chronic pain, or depression resulting from their
time in uniform, also face high rates of suicide. According to a
Department of Veterans Affairs report this spring, a veteran commits
suicide every 80 minutes.
While I applaud the military and the VA efforts to address this
threat seriously, especially the Army, we can and must do more. To that
end, I have filed an amendment with Senators Lieberman and Blumenthal
to require the Attorney General to exercise authority granted to him by
the Secure and Responsible Drug Disposal Act of 2010 to establish a
drug take-back program in coordination with both the Secretary of
Defense and the Secretary of Veterans Affairs.
There is substantial evidence that prescription drug abuse is a major
factor in military and veteran suicides. The Army has reported that 29
percent of suicides had known history of psychotropic medication use,
including anti-depressants, anti-anxiety medicine, anti-psychotics, and
other controlled substances such as opioids.
I understand the legitimate concerns raised by some law enforcement
officials that accountability of drugs must be strictly maintained and
that these drugs must be prevented from being misused, abused, or sold
in the black market. I am confident, however, that both the military--
an institution that has developed and implemented programs for the
handling of nuclear weapons and classified information--and the VA are
capable of running a drug take-back program with the utmost
accountability and highest of standards.
I have also filed another amendment to establish a resilience
research program in the Army to study the effectiveness of the
Comprehensive Soldier Fitness program. This program is intended to
improve the resilience of our active duty force.
The loss of even one servicemember to a potentially preventable
suicide is unacceptable. We have a responsibility to take every
practical step that we can to help the military win the battle against
suicides. Over the past decade, we have made an incredible investment
to prevent deaths or injuries from IEDs. Although the threat to our
forces posed by suicide will not be solved overnight, it deserves a
similar commitment to combat this epidemic.
Likewise, the high incidence of military sexual assaults also
continue to warrant our attention, particularly after the scandal at
Lackland Air Force Base. This bill includes two provisions that I
support which would codify into law regulations that were issued by the
Department earlier this year. We should all continue to watch the
Department closely to see that the changes are implemented wisely, that
the Department's policy of zero tolerance becomes a culture of zero
tolerance, and that the incidence of these crimes is dramatically
reduced.
In the area of mental health, this bill includes a provision to grant
authority for additional behavioral health professionals to conduct
pre-separation medical examinations for post-traumatic stress disorder.
This provision would increase the number of medical professionals
available to conduct evaluations because the backlog of cases within
the integrated disability evaluation system is significant, and results
in unacceptable wait times for our military personnel being processed
for separation.
Unfortunately, the military does not even know the true scope of the
backlog within the disability evaluation system, and I am sure that
many of our colleagues receive letters from their constituents
expressing this concern each week. This year's bill contains a
provision I authored that would require DOD to collect data on the
physical, mental, and behavioral health of Wounded Warriors in order to
accurately assess the efficacy of the military's Wounded Warrior
programs.
In Afghanistan, where many of our wounded warriors received their
injuries, military personnel continue to pay a high cost. As we head
into the final 2 years of combat in Afghanistan, after more than a
decade of war, I have grown increasingly concerned about the high
number of insider attacks and their effect upon our strategy to
transition to Afghan Security Forces leadership and for U.S. forces to
assume a training and mentoring role after 2014.
Each death caused by the tactic of insider attacks has a strategic
effect upon the war, both in terms of the American people's perception,
and the willingness of our partners in NATO and ISAF to remain engaged
in battle.
In 2012 alone, 60 Coalition troops, representing 16 percent of
Coalition deaths, have been slain at the hands of those upon which our
strategy depends. It is for that reason that I, along with Senators
Udall, Portman, and Shaheen have filed an amendment that would require
the Secretary of Defense to report on the effect of insider attacks
upon the progress of the war and the effect these attacks have upon our
strategy and the behavior of our partners. Our Nation has made too
great an investment in blood and treasure in Afghanistan; Congress must
understand the strategic environment, and be presented with all the
information to make informed decisions about how to proceed in
Afghanistan.
The Afghan war has also left us with important questions about
detention policy here at home that must be resolved. One of the
questions that has been left unaddressed in the eleven years since the
Congress authorized the use of military force to go after al-Qaeda and
the Taliban is whether the Congress intended to authorize the detention
of persons in the United States, and specifically the detention of
American citizens. I have cosponsored an amendment with Senator
Feinstein that would explicitly prohibit the indefinite detention of
U.S. citizens captured on U.S. soil.
The final amendment I have offered, along with Senators Kerry, Brown
of Massachusetts, Blumenthal, Whitehouse, Snowe, and Brown of Ohio,
would require the Department of Defense to establish a temporary pilot
program to issue domestically procured athletic shoes to Army recruits
in initial entry training. DOD historically provided athletic footwear
to new recruits that comply with the Berry Amendment, but DOD's current
procurement process has allowed it to circumvent the spirit, letter,
and intent of the law. I have no doubt that domestic suppliers will be
able to produce a Berry compliant shoe, with minimal waivers necessary,
that can meet the needs of recruits and the Army in a cost-effective
manner. We should not allow government funds to be used to support
foreign-made shoes, when American shoes are available. Much like our
Olympic athletes should be clothed in domestically produced apparel, so
too should our military recruits be wearing athletic shoes made in the
U.S.A.
I am also cosponsoring two amendments that grew out of the work of
the Commission on Wartime Contracting. I have cosponsored Senator
Blumenthal's End Trafficking in Government Contracting Act to tighten
the U.S. government's zero tolerance policy for any form of human
trafficking. This amendment would require contractors to certify that
they have plans in place to prevent such practices. It also makes it a
crime to engage in such labor practices overseas on U.S.-controlled
property or while working on a U.S. contract.
The Commission on Wartime Contracting also found that contingency
contracting in Iraq and Afghanistan has been plagued by high levels of
waste, fraud, and abuse--estimating that at least $31 billion had been
lost to contract waste and fraud. Without high-level attention,
acquisition planning and allocation of resources, we are likely to
repeat the contracting mistakes of the last contingency operation.
Therefore, I have cosponsored Senator McCaskill's amendment to
strengthen contingency contracting at DoD, State, and the U.S. Agency
for

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International Development--USAID--by improving planning, execution, and
oversight of this function at these agencies and requiring education
for personnel who engage in contingency contracting.
From the Maine Military Authority and the DFAS Center in Limestone to
the Portsmouth Naval Shipyard in Kittery, from innovative composite and
renewable energy research at the University of Maine to high-tech firms
like Vingtech, Hodgdon Defense Composites, Maine Machine Products, and
Mt. Desert Island Biological Laboratory, Mainers continue to support
national defense with ingenuity and craftsmanship.
The investments authorized in this bill support these efforts in
Maine and in States around the Nation, and they ensure that our
military is the best trained and equipped in the world. I urge my
colleagues to support passage of this bill.

____________________