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Public Statements

National Defense Authorization Act for Fiscal Year 2012

Floor Speech

By:
Date:
Location: Washington, DC

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Mr. LEVIN. Mr. President, on behalf of the Senate Armed Services Committee, I am pleased to bring to the Senate the conference report on H.R. 1540, the National Defense Authorization Act for fiscal year 2012. This conference report, which was signed by all 26 Senate conferees, contains many provisions that are of critical importance to our troops. This will be the 50th consecutive year in which a National Defense Authorization Act has been enacted into law.

I thank all of the members and staff of the Senate Armed Services Committee--and especially our subcommittee chairs and our ranking members--for the hard work they have done to get us to this stage. Every year we take on tough issues and we work through them on a bipartisan basis, consistent with the traditions of our committee. This year was a particularly difficult one because of the severely condensed timeline for floor consideration and conference on the bill.

I particularly thank my friend Senator McCain, our ranking minority member, for his strong support throughout the process. I know both of us thank the chairman and ranking member of the House Armed Services Committee, Buck McKeon and Adam Smith, for their commitment to this bill and to the men and women of our Armed Forces.

The conference report we bring to the floor today authorizes $662 billion for national defense programs. While it authorizes $27 billion less than the President's budget request and $43 billion less than the amount appropriated for fiscal year 2011, I am confident this conference report, nonetheless, provides adequate support for the men and women of the Armed Forces and their families and provides them with the means they need to accomplish their missions.

This conference report contains many important provisions that will improve the quality of life of our men and women in uniform. It will provide needed support and assistance to our troops on the battlefield. It will make the investments we need to meet the challenges of the 21st century, and it will provide for needed reforms in the management of the Department of Defense.

I ask unanimous consent that a list of some of the more significant provisions be printed in the Record at the close of my remarks.

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Mr. LEVIN. Probably the most discussed provision in the conference report is the provision relative to military detention for foreign al-Qaida terrorists. This provision was written to be doubly sure there is no interference with civilian interrogations and other law enforcement activities and to ensure that the President has the flexibility he needs to use the most appropriate tools in each case. The bill as passed in the Senate addressed this issue by including language that: No. 1, left it to the President to adopt procedures to determine who is a foreign al-Qaida terrorist and therefore subject to presumed military detention; No. 2, required that those procedures not interfere with ongoing intelligence, surveillance, or interrogations by civilian law enforcement; No. 3, left it to the executive branch to determine whether a military detainee who will be tried is tried by a civilian court or a military court; and No. 4, gave the executive branch broad waiver authority.

The conference report retains that language and adds additional assurances that there will be no interference with civilian interrogations or other law enforcement activities. In particular, the conferees added language that says the following:

Nothing in this section shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with respect to a covered person, regardless of whether such covered person is held in military custody.

It also modifies the waiver language to give the President, rather than the Secretary of Defense, the authority to waive the requirements of the provision.

Under the provision in the conference report, law enforcement agencies are not restrained in apprehending suspects or conducting any investigations or interrogations. If a suspect is apprehended and is in law enforcement custody, the suspect can be investigated and interrogated in accordance with existing procedures. If and when a determination is made that a suspect is a foreign al-Qaida terrorist, that person would be slated for transfer to military custody under rules written by the executive branch. Again, however, any ongoing interrogations are not to be interrupted, and the President also has a waiver authority. If the suspect is transferred to military custody, all existing law enforcement and national security tools remain available to the FBI and other law enforcement agencies, and even if the suspect is held in military custody, it would be up to the Attorney General, after consulting with the Secretary of Defense and the Director of National Intelligence, to determine whether the suspect will be tried in Federal court or before a military commission.

The bill provides the Attorney General with broad discretion to ensure that whatever consultation is conducted does not impede operational judgments that may need to be made to pursue investigative leads, effect arrests or file charges.

The language in the Senate bill and in the conference report is intended to preserve the operational flexibility of law enforcement and national security professionals in the executive branch. Nothing in the language limits the President as to when he can waive the provision or for whom he can waive it.

For example, he is not required to wait for a coverage determination to be made before deciding to waive the requirements of the provision. Similarly, he is not precluded from waiving the provision with regard to more than one individual at a time--for example, with regard to a group of conspirators or potential codefendants.

In short, the waiver language in the conference report is broad enough to reflect circumstances in which it is in the national security interests of the United States for a President to waive the requirements of the provision with respect to a category of covered persons, if he so determines, in order to preserve the flexibility of counterterrorism professionals and operators to take expeditious action.

With the exception of those assurances, the detainee provisions in the conference report are largely unchanged from the provisions in the bill that was approved by the Senate on a 93-to-7 vote just 2 weeks ago. Those who say we have written into law a new authority to detain American citizens until the end of hostilities are wrong. Neither the Senate bill nor the conference report establishes new authority to detain American citizens--or anybody else.

The issue of indefinite detention arises from the capture of an enemy combatant at war. According to the law of war, an enemy combatant may be held until the end of hostilities. Can an American citizen be held as an enemy combatant? According to the law of war, an enemy combatant may be held until the end of hostilities. But, again, can an American citizen be held as an enemy combatant? I believe that if an American citizen joins a foreign army or a hostile force such as al-Qaida that has declared war and organized a war against us and attacks us, that person can be captured and detained as an enemy combatant under the law of war.

In 2004, the Supreme Court held in the Hamdi case that ``there is no bar to this Nation's holding one of its own citizens as an enemy combatant.''

The Court cited with approval its holding in the Quirin case, in which an earlier court held that ``citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of ..... the law of war.''

But despite that view of mine, which I clearly expressed on the Senate floor a couple weeks ago, neither the Senate bill nor the conference report takes a position on this issue. Both the Senate bill and the conference report include
the language of the Feinstein amendment, which we drafted together and passed 99 to 1. That amendment leaves this issue to the executive branch and the courts by providing the following:
Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.

The more difficult issue for me--and I believe it goes to the heart of the concern of the detention policy--is the kind of war we are in with al-Qaida, and that issue is when does the detention end? In other words, when are the hostilities over? In this kind of nontraditional war, we are not likely to sign a peace treaty or receive a formal surrender or even reach an agreement on a cease-fire.

Under these circumstances, it is appropriate for us to provide greater procedural rights to enemy detainees than we might in a more traditional war. We have done so in this conference report. The conference report, for instance, requires periodic reviews of detainee cases in accordance with an executive order issued earlier this year to determine whether detainees pose a continuing threat or safely can be released. Under the conference report, enemy combatants who will be held in long-term military detention are told, for the first time, they will get a military judge and a military lawyer for their status determination.

The conference report includes many other important provisions.

It includes new sanctions against the financial sector of Iran, including the Central Bank of Iran. These sanctions would, among other actions, require foreign financial institutions to choose between maintaining ties with the U.S. financial system or doing business with the Central Bank of Iran.

It includes provisions addressing the problem of counterfeit parts that can undermine the performance of military weapons systems and endanger our men and women in uniform. This is one of the most important additional provisions we have in our bill; that is, the provisions relative to these counterfeit parts that are flooding our defense system with electronic parts that are counterfeited and come mainly from China. We were able to identify approximately 1,800 cases of suspect counterfeit electronic parts, covering more than 1 million individual parts, with most of them, again, coming from China. This conference report includes comprehensive reforms to keep counterfeit electronic parts out of the defense supply chain and provides proper accountability when suspect parts make it through that chain.

In particular, the conference report relative to this subject does the following:

It clarifies acquisition rules to ensure that the cost of replacement and rework that is required by the use of suspect counterfeit parts is paid by the contractor, not by the taxpayer.

It requires the Department of Defense and Department of Defense suppliers to purchase electronic parts from manufacturers and their authorized dealers or from trusted, certified suppliers.

It requires Department of Defense officials and Department of Defense contractors that become aware of counterfeit parts in the supply chain to provide written notification to the government.

It requires the Department of Defense and its largest

contractors to establish systems and procedures to detect and avoid counterfeit parts.

It requires the Secretary of Homeland Security to consult with the Secretary of Defense on the sources of counterfeit electronic parts in the military supply chain and establish a risk-based program of enhanced inspection of imported electronic parts.

It authorizes Customs to share information from electronic parts inspected at the border with manufacturers to help determine whether the parts are counterfeit.

It strengthens criminal penalties for counterfeiting military goods or services.

We are very grateful for the support of Members of this body for that provision.

Relative to the strengthening of criminal penalties, I wish to add our thanks to Senator Whitehouse for his work on this subject, for his provisions relative to additional criminal penalties for counterfeiting military goods that are a part of this bill, and they are a very important part.

The conference report requires sound planning--this is another provision of this bill--and justification before we spend more money on troop realignment from Okinawa to Guam and on tour normalization in Korea. Those provisions follow detailed oversight that Senators WEBB, MCCAIN, and I have conducted.

On some other provisions: The conference report requires that the next lot of F-35 aircraft--lot 6--and all subsequent aircraft, be purchased under fixed-price contracts, with the contractor assuming full responsibility for any costs above the target cost specified in the contract.

Our conference report fences 75 percent of the money available for the Medium Extended Air Defense System--MEADS--until the Secretary of Defense submits a detailed plan to use those funds to close out the program or pay contract termination costs.

The conference report includes Senator Landrieu's bill to extend the Small Business Innovative Research--SBIR--Program for an additional 6 years. It has been about 6 years since we reauthorized this vitally important program, which provides a huge benefit to our small businesses so they can effectively participate in research programs that are funded by the Federal Government. In the defense arena, SBIR has successfully invested in innovative research and technologies that have contributed significantly to the expansion of the defense industrial base and the development of new military capabilities.

As to Pakistan, the conference report limits to 40 percent the amount of the Pakistan Counterinsurgency Capability Fund that can be obligated until the Secretary of Defense provides Congress with a strategy on the use of the fund and on enhancing Pakistan's efforts to counter the threat of improvised explosive devices, those IEDs which kill so many of our troops and so many civilians.

Finally, the Department of Defense has informed us it does not need an exemption from section 526 of the Energy Independence and Security Act of 2007 because that section does not apply to purchases at market prices from generally available fuel supplies and does not preclude the Department from purchasing any fuel it needs or expects to purchase in the foreseeable future.

We are in the final stages of withdrawing our combat troops from Iraq, but we continue to have almost 100,000 U.S. soldiers, sailors, airmen, and marines on the ground in Afghanistan. While there are issues on which we may disagree, we all know we must provide our troops the support they need as long as they remain in harm's way. The enactment of this conference report will improve the quality of life for our men and women in uniform. It will give them the tools they need to remain the most effective fighting force in the world. Most important of all, it will send an important message that we as a nation stand behind our troops and we deeply appreciate their service.

In conclusion, I would, once again, thank Senator McCain, all our Members, and our majority and minority staff, led by Rick DeBobes and Dave Morriss, for their hard work on this bill. We could not have done this without them.

I ask unanimous consent that a full list of our majority and minority staff, who gave so much of themselves and their families, be printed in the Record.

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Mr. LEVIN. Madam President, I spoke at some length before, but I want to repeat one sentiment in the statement that has to do with Senator McCain and his staff. The way in which he and our staff work together is in the finest tradition of this body. Our committee has had that reputation. It is a well-earned, well-deserved reputation that we are able to work on a bipartisan basis.

Senator McCain continues in a great tradition on the Republican side, and I would hope I strive at least to do the same on our side. We have had some great leaders of our committee over the decades, and Senator McCain is one of those leaders in that tradition, and I want to say what a great pleasure it is to work with him.

I know our staffs work beautifully together, and we are grateful for that. The Senator was right in pointing out who we are doing this for--it is the men and women in uniform--but we couldn't do that without our great staffs, and I know he joins me, and has already in his statement, in a tribute to our staffs.

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Mr. LEVIN. I think one on our side.

While we are talking about rays of lightness, we thank Senator Hagan, our Presiding Officer, who is a member of our committee. She provides a ray of light--one of the many rays of light on our committee. I see her presiding and smiling over this effort, and I wanted to acknowledge that she is an important part of it and to recognize her contribution as well.

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SECTION 1022

Mr. LEVIN. Mr. President, section 1022(d) of the conference report states that ``nothing in this section shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person, regardless whether such covered person is held in military custody.'' Would the Senator agree with me that this language is intended to ensure that the provision does not interfere with ongoing civilian interrogations and other law enforcement activities and that the President has the flexibility he needs to decide on the most appropriate law enforcement and intelligence tools for each individual case?

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Mr. LEVIN. Section 1022 applies only to a person who is ``a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda.'' The statement of managers states that this language intentionally excluded the Taliban. Would the Senator agree with me that the requirements of section 1022--including the transfer restrictions applicable under that provision--do not apply to individuals detained by our forces in Afghanistan?

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Mr. LEVIN. Madam President, I had not seen those remarks of Mr. Putin, but referring to his last comment, read by Senator McCain, I guess people would go nuts in the setting Senator McCain found himself in the Vietnam war. He probably is perhaps, only in that line, accurate that most people, indeed, could not have survived that experience. I know Senator McCain does not raise this matter, but those of us who work with him appreciate all he has done for this country and for this body. I wish we had a chance to straighten out Mr. Putin about Senator McCain. I don't think we will have that opportunity, but maybe his own people will do so in a free election someday.

I suggest the absence of a quorum.

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Mr. LEVIN. Mr. President, I appreciate and I understand the Senators' concerns about this issue as they have been expressed here this afternoon. I also very much appreciate their understanding relative to the extremely short period for conference this year where we worked through hundreds of provisions with our House colleagues in about a week, a process that usually takes a month or more.

While I am proud of what we were able to accomplish in this bill as a whole, it was probably likely that some language would need more consideration because of the time constraints we were operating under. Before I continue, I want to state my appreciation to the Members who spoke here this afternoon and members of the Armed Services Committee. They make major contributions to this committee.

I listened carefully to what our colleagues have had to say about the depot maintenance issue. I believe their concerns are substantive and merit careful consideration from the Armed Services Committee. This is an issue that was brought to our conference in the House bill.

The depot maintenance provisions that were approved by the House last
May arose out of a congressionally mandated independent review of the statutes, regulations, and policies guiding depot maintenance performance and reporting. The House conferees then proposed modifications to their own provisions based on the results of a series of discussions with stakeholders held throughout the summer at the National Defense University. We were told this process was comprehensive, that all stakeholders were invited, and that the resulting recommendations were widely accepted by all interested parties.
In particular, we understood the Department of Defense, private industry, and the House Depot Caucus had reached consensus on the revised House language. While those statements were made in good faith, it turns out they were not accurate. A number of key players, including stakeholders in government, private industry, and labor, did not participate in the process at National Defense University and were apparently unaware of the results.

Senators with a strong interest in the issue were not aware of the modified House language that was presented in our conference until it was too late to consider changes. I am aware that the depot maintenance issue has long been a sensitive one to our Nation and to many of our Members, and that the precise words in these provisions matter. The existing statutes, regulations, and practices have served to sustain both core logistics capabilities and the defense industrial base over the last decade, so any changes need to be fully understood.

I understand there are a number of unanswered questions about the provisions in the conference report that could have significant effects. For example, first, the new language substitutes the term ``core depot level maintenance'' for the existing term ``core logistics.'' Does this change impact National Guard readiness, sustainment maintenance sites, and other DOD facilities that are not depots? Does the change impact requirements for supply chain management and other logistics functions that are not performed by depots?

Second, the new language changes the wording regarding modifications in the definition of core depot level maintenance. Does this change impact planned public-private competitions for modifications and upgrades programs? Does the change preserve the distinction between modifications and upgrades on the one hand and acquisition programs on the other? Is this an expansion of core functions that will be required to be performed in the public sector with an adverse impact on the defense industrial base?

Third, the new language changes the wording of the exclusion for commercial items. Is this a change to the existing exclusion or merely a recodification? Will it impact maintenance requirements for commercial derivative aircraft and other major defense systems that are based on commercial technology?

Fourth, the new language includes a waiver rather than an exemption from core requirements for nuclear aircraft carriers. Will the new language result in any change in requirements for the maintenance and modifications of nuclear aircraft carriers?

Fifth, the new language includes the authority to waive core requirements for any weapons system that is ``not an enduring element of the national defense strategy,'' rather than an exclusion for a workload that is ``no longer required for national defense reasons.'' Does this new language mean something different from the existing language? If so, will it change the balance of work between the depots and the private sector?

I am committed to have the Armed Services Committee revisit the modifications to the depot maintenance laws included in this conference report and to give full consideration to the concerns our Members have raised. Over the coming months we will engage with interested Members and their staffs to review the language in detail. Together we will reach out to interested parties through a process that will include a full committee hearing if we determine one is needed. We will then take action to repeal or modify anything that needs to be repealed or modified in these provisions during our consideration of next year's National Defense Authorization Act. Many of my colleagues heard Chairman Buck McKeon make a similar commitment at our final conference meeting.

During the next year, while this review process is underway, I join my colleagues in urging the Department of Defense to proceed with caution in implementing this legislation. In particular, I urge the Department to make as little change as possible in the status quo with regard to these functions during the next year. It would be unfortunate if the Department were to change significant functions from one form of performance to another this year only to be required to change the decision again the year later.

Our objective has always been and always will be to ensure the Nation's depot maintenance system is structured and supported in a manner that efficiently and effectively provides for the readiness of our Armed Forces and our national security. I know this is a critically important issue. I look forward to working with Senators over the next year to take the steps we have discussed here today.

I yield the floor.

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Mr. LEVIN. Madam President, let me first thank Senators GRAHAM and AYOTTE for their contributions this afternoon and long before this afternoon on this subject.

The best answer to some of the criticism we have heard this afternoon--the FBI has been successful. Why change it?--read the law, read the conference report.

Nothing in this section shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation. .....

It is flatout explicit in the law.

Something else we have heard: We are doing something for the first time--long-term custody for American citizens. Read the conference report:

Nothing in this section shall be con-Ðstrued to affect existing law or authoritiesÐrelating to the detention of United StatesÐcitizens.......

I urge people to read our conference reports read the Senate bill, before they accept some of the arguments which have been made against this conference report.

Madam President, I ask unanimous consent that the statement of the Press Secretary for the President that was issued yesterday on behalf of the President be printed in the Record, including this line:

[W]e have concluded that the language does not--

The language in the conference report--

challenge or constrain the President's ability to collect telling intelligence, incapacitate dangerous terrorists, and protect the American people--

And the key words for many people--

and the President's senior advisors will not recommend a veto.

There being no objection, the material was ordered to be printed in the Record, as follows:

Statement From the Press Secretary on the NDAA Bill

We have been clear that ``any bill that challenges or contrains the President's critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation would prompt the President's senior advisers to recommend a veto.'' After intensive engagement by senior administration officials and the President himself, the Administration has succeeded in prompting the authors of the detainee provisions to make several important changes, including the removal of problematic provisions. While we remain concerned about the uncertainty that this law will create for our counterterrorism professionals, the most recent changes give the President additional discretion in determining how the law will be implemented, consistent with our values and the rule of law, which are at the heart of our country's strength. This legislation authorizes critical funding for military personnel overseas, and its passage sends an important signal that Congress supports our efforts as we end the war in Iraq and transition to Afghan lead while ensuring that our military can meet the challenges of the 21st century.

As a result of these changes, we have concluded that the language does not challenge or constrain the President's ability to collect intelligence, incapacitate dangerous terrorists, and protect the American people, and the President's senior advisors will not recommend a veto. However, if in the process of implementing this law we determine that it will negatively impact our counterterrorism professionals and undercut our commitment to the rule of law, we expect that the authors of these provisions will work quickly and tirelessly to correct these problems.

Mr. LEVIN. Again, I want to thank all of my colleagues who participated in this debate.

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