National Defense Authorization Act for Fiscal Year 2004-Conference Report-Resumed

CONGRESSIONAL RECORD
SENATE
PAGE S14481
Nov. 12, 2003

National Defense Authorization Act for Fiscal Year 2004-Conference Report-Resumed

Mr. BIDEN. Mr. President, the fiscal year 2004 Department of Defense Authorization Conference Report provides important benefits as our military personnel continue to do battle in Iraq, Afghanistan, the Balkans, South America, and elsewhere. It is not, however, a perfect bill. I voted for it because I believe that in a time of war we need to take care of our military personnel and our veterans. But, I am concerned that this bill unnecessarily undercuts important environmental protection measures and civil service protections. I am also troubled by some of the nuclear weapons provisions of the bill. First let me describe some of the key provisions that I do support in this bill.

This bill provides a 3.7 percent across-the-board pay increase and, because of some of the targeted pay raises for mid-career personnel, an average pay raise of 4.1 percent. It also authorizes increases in the critical pay bonus areas of family separation, hostile fire, and imminent danger pay from October of this year until next December. These increases are much needed and well-deserved.

I am also pleased that the bill would allow the Army to add 2,400 additional personnel. I supported adding 10,000 and would still like to see the number grow, but this is, at least, a start.

Perhaps most important as we create new veterans daily, this bill starts to live up to our promises to our veterans. I have long believed that the commitment we make to the retirement benefits of a veteran and the commitment we make to care for those veterans injured while serving should not be mutually exclusive. This bill takes a very real step toward allowing veterans full concurrent receipt. Military retirees with 20 years of service, active duty or Reserve Component, and a Purple Heart or a combat related disability will be eligible for full concurrent receipt as of January 1, 2004. The remaining retirees who are disabled at 50 percent and above will get full concurrent receipt phased in over the next 10 years.

In addition to the important personnel benefits of this bill, I am also pleased that the bill makes a common sense commitment on strategic airlift. The bill prohibits any decision to retire C-5 As until an A-model is completely modernized under the Avionics Modernization Program and Reliability and Re-Engining Program and then tested for its operational capability. This will allow decisionmakers to have the facts about what capability can be gained from the modernization programs. In addition, the Senate has required a March report updating the military's strategic airlift requirement. We know that the old requirement, defined pre-9-11, pre-Afghanistan, and pre-Iraq, is too low. Until we have a more accurate sense of what is really needed, it will be hard for Congress and the military to determine the best way to meet the need.

Let me now detail my concerns with the environmental and civil service provisions of this legislation. I believe it is important to balance our national security needs with the rights of our children and grandchildren to live in a country that has clean air and water. America is the home to tremendous natural bounty and diversity. Those natural treasures are something we hold in trust, not something we should allow destroyed for expediency. As the Nation has advanced, we have striven to find ways to balance environmental protection with our economic and military needs. We have done this in our environmental protection laws, most of which carry national security waiver provisions. It is still not clear to me why the conferees felt it was appropriate to make changes to two key environmental protection laws without taking into account the advice and wisdom of those who oversee that legislation daily.

Let me start by saying that I believe realistic military training is absolutely critical to the survival of our military personnel. Until now, we have managed to balance that need with our desire to safeguard our environment. This bill allows the Department of Defense to get around the Endangered Species Act, ESA, and to make enforcement of Marine Mammal Protection Act, MMPA, extremely difficult. With respect to ESA it is particularly troubling since, again, there is a national security waiver provision in that law. In the Senate, we were able to craft a compromise that allowed the Defense Department to avoid making any new critical habitat designations on installations that had Integrated Natural Resources Management Plans that the Secretary of the Interior had determined would in fact conserve the species on the installation and would be adequately resourced. This bill does not provide that safeguard.

In the case of MMPA, this bill provides a weaker definition of "harassment." More extraordinary than that, the new weaker definition applies not just to military activities, but rather to any scientific research conducted by or on behalf of the Federal Government. We have been given no rationale or justification for making it easier for federally funded scientists to harm marine mammals. The bill makes it easier for the Navy to get permits if their activities will have no more than a "negligible impact" on marine mammals. I also do not see why legitimate Naval activities should not receive the same full scrutiny they have always received. Again, we were not given good justifications for making such a change. At the end of the day, I am very disappointed that the conferees agreed to basically allow the Department of Defense to begin making their own environmental rules. While they have done a very good job managing many environmental issues, their track record is not one that suggests complete self-regulation is warranted or desirable. Their job is to fight and win our nation's wars. As a democracy, it is our job to provide them the legal framework that allows them to do their job while not sacrificing the nation's natural treasures. This bill is a step backwards.

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In the area of civilian personnel reform at the Department of Defense, I am again troubled that this bill opens the door to cronyism and discrimination, things from which we have long sought to insulate our civil service. While I am open to the notion that civil service reform may be in order, I am again concerned that it is being done in an ad hoc fashion and without the proper input from the committees that oversee the entire civil service. I believe that we must be wary of the potential politicization of our workforce. The employees of the Defense Department are highly dedicated professional, and they must be free from political pressure. I will be taking a close look at how the administration goes forward with its new authorities. I will be watchful that the employees are free from political retaliation and secure in their jobs so that they can perform their vital tasks to the highest of professional standards.

Finally, let me say a few words about some of the nuclear weapons provisions in this bill. This conference report does a good job, on balance, of providing for our cooperative threat reduction and non-proliferation assistance programs in the former Soviet Union. It provides roughly the funding requested by the President and, in particular, a needed Presidential waiver provision so that we can continue to help build a chemical weapons destruction facility in Shchuch'ye, Russia. It requires the Secretary of Energy to study and report on the possibility of purchasing and safeguarding excess weapons-grade uranium and plutonium from the independent states of the former Soviet Union, so as to ensure that such dangerous material cannot be diverted to rogue states or terrorists. And it allows the President to use some Nunn-Lugar and non-proliferation funds for projects outside the former Soviet Union, if he determines that this will assist in the resolution of a critical emerging proliferation threat or permit the United States to achieve long-standing nonproliferation goals.

I regret that the Congress agreed to repeal the Spratt-Furse prohibition of work on low-yield nuclear weapons. I am pleased, however, that the conference report states that such work may not commence the engineering development phase, or any subsequent phase, of a low-yield nuclear weapon unless specifically authorized by Congress. I am also pleased that the Secretary of Energy is barred from commencing the engineering development phase, phase 6.3, of the nuclear weapons development process, or any subsequent phase, of a Robust Nuclear Earth Penetrator weapon unless specifically authorized by Congress.

Again, I voted for this bill because it contains many important provisions, particularly in this time of war. But I am very concerned that some of the provisions agreed to by the conferees are ill-advised and premature. I hope that we will be able to reconsider them next year.