National Defense Authorization Act for Fiscal Year 2005 - Part 1
NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2005
Mr. REID. Mr. President, the reason we have considered these side by side on a number of occasions is the person offering the amendment initially wants a vote on his amendment. The second degree usually wipes out that amendment, which causes that person to reoffer the amendment, which they have a right to do. It has been discovered in the past that we are much better off considering them side by side right off the bat rather than doing the parliamentary skirmishing. Of course, as I said to the distinguished Chair, if there is an overwhelming vote on the second degree, a lot of times the Senator who offers the first degree doesn't want to do that. That is what we will have to see.
Mr. WARNER. Mr. President, I concur in the observation of our distinguished colleague. All I am saying is we should look at each one individually rather than establishing a policy at this point-certainly with regard to this bill because, as the distinguished majority leader said, the Senate has devoted extensive time to this piece of legislation. It is very important. I am optimistic that we can meet the schedule for completion tomorrow night. I hope that optimism is shared on the other side.
At this time, the bill is open to amendment. The managers await the arrival of the first Senator.
Mr. REID. Mr. President, the first Senator we have indicated to speak on an amendment will be here at 2 o'clock. Senator Dayton will be here on the Buy America amendment. Senator Levin has a missile defense amendment with which the distinguished Chair is familiar. He will be here also to offer that amendment shortly. We probably won't have too many other amendments offered today, but we will see. We have placed calls, as you know. We have lined up for today Senators LEVIN, DAYTON, BYRD, and BINGAMAN. But we now understand that Senator Bingaman may not want to offer his amendment, Senator Byrd may not want to offer his, and Senator Dayton's is with the condition, of course, which we have talked about. Senator Levin will be here. I assume Senator Levin's amendment will take probably an hour between both sides. He usually doesn't talk very long.
We are in a position to move forward.
Mr. WARNER. Mr. President, I hope we can perhaps reach the Byrd amendment today. It is an important amendment. I have shared many debates with my good and valued friend from West Virginia, and we are prepared. I cannot join him in support, but we will have a good, strong debate on it. It will be, I believe, a historic debate to initiate today.
Mr. REID. Mr. President, I spoke earlier today with Senator Byrd. He said he would make a decision tonight as to whether he is going to offer the amendment.
Mr. WARNER. Mr. President, I will be available tonight should the senior Senator from West Virginia desire to take up that debate tonight.
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Mr. WARNER. Mr. President, we are where we are. In the mortal words of someone smarter than I, we have to deal with the cards which have been dealt.
I have a suggestion. We are trying to work out how we could protect the parliamentary situation as it now exists with regard to the Burns second degree such that we could proceed now with the debate on the amendment of the distinguished Senator from North Dakota and at least have the debate in place in the hopes that perhaps we could resolve this dilemma as the day goes on.
Mr. REID. Mr. President, I want it made clear that the reason I said this is we have worked very hard to move this bill along. This is an important bill. We started off with about 300 amendments. Those amendments were defense oriented with rare exception. The majority leader has worked hard and filed a cloture motion. That was withdrawn, and rightfully so. But now we have this measure being offered on the other side of the aisle.
I want the RECORD to be very clear that the extraneous matters on this important Defense bill have not come from this side of the aisle.
Mr. WARNER. Mr. President, I so note that observation.
May I inquire of the Senator from North Dakota: Is the parliamentary situation on his amendment now clear?
Mr. DORGAN. Mr. President, in response, my amendment would be a second-degree amendment offered to Senator Brownback, but that second-degree slot, I believe at this moment, is filled by an amendment previously offered by Senator Burns. I don't quite know how to resolve that, but at some point Senator Burns' second-degree amendment will be resolved, that second-degree slot will be open, and I will offer an amendment similar to that which we did in the Commerce Committee.
Mr. WARNER. I presume the Burns matter would require a recorded vote, so at this point in time I don't know whether the Senator is willing to use this available time to explain his amendment, although it will not be a pending matter before the
Senate.
We will try to resolve the underlying parliamentary situation with regard to both amendments, the underlying amendment and the Burns second-degree amendment, so the Senator will have his opportunity.
Mr. DORGAN. Mr. President, let me take a moment to consult with some staff on our side with respect to the parliamentary situation.
Let me say again, so the Senator from Virginia is clear, and I think he is, this Defense authorization bill needs to get completed with some dispatch. I sympathize with the challenge he and the Senator from Michigan have had trying to move it along. It is not my intent in any way to delay that.
I feel obligated, as I think do others in the Senate, that when Senator Brownback offered an extraneous amendment, that amendment which previously included broadcast ownership limitation issues dealing with the FCC rules, to add that back to the indecency language.
I will consult with our side in a moment and perhaps I can make some comments about it, and if others wish to make comments, we would find a way to vote as soon as the Burns second-degree amendment is disposed of. Let me do some consultation and perhaps I can speak.
Mr. WARNER. That is a reasonable request, and I suggest the absence of a quorum.
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Mr. WARNER. Mr. President, together with the Senator from Nevada, the Senator from Virginia, in consultation with leadership, presents to the Senate this UC: I ask unanimous consent that at 5:30 today the Senate proceed to a vote in relation to the Warner amendment No. 3458 which is to be drafted as a first degree; to be followed immediately by a vote in relation to the Lautenberg amendment No. 3291; provided that no second degrees be in order to the amendments prior to those votes.
AMENDMENT NO. 3291, AS MODIFIED
Mr. REID. Mr. President, I ask unanimous consent that the distinguished chairman allow me to send a modification for Senator Lautenberg to the desk prior to this consent being approved.
Mr. WARNER. No objection.
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Mr. WARNER. Mr. President, the leadership is working with the managers to see what we can do to resolve the question of
one of the amendments which is pending before the Senate with regard to matters relating to the Commerce Committee. We see the Senator from North Dakota prepared to speak to his amendment. As soon as we can work out the parliamentary situation, we will proceed to that point.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. Mr. President, we have been given a consent agreement drafted by the staff that is now being vetted with the majority. We should be in a position to approve that shortly which would allow us to handle the underlying Brownback amendment, the Burns amendment, and the Dorgan amendment, which we will offer on a future occasion not too long from now. That should resolve this totally. In the meantime, I think it would be appropriate if the Senator from North Dakota spoke about his amendment.
Mr. WARNER. It would be a valuable use of the time if we were to do so. We encourage that.
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Mr. WARNER. Mr. President, I think the Senator's understanding coincides with that of myself and the distinguished Senator from Nevada. In due course, several parties who have an active interest in not only the parliamentary situation but the substance are soon to arrive in the Senate. We have to wait a bit.
Mr. DORGAN. There are some interests, of course, outside of the Chamber that would not want this amendment to the Brownback bill. I want to make sure we have an understanding that I get the opportunity to do this. Otherwise, I have a much longer statement that I would be prepared to make. My preference would be to leave it at this and to simply get this pending as soon as possible.
Mr. WARNER. Mr. President, we understand. A Senator asked for a few minutes of morning business and then I would be prepared to engage with Senator Bingaman on his amendment, if that is agreeable.
Mr. REID. Mr. President, will the Senator from Virginia yield?
Mr. WARNER. Yes.
Mr. REID. The Senator from New Mexico is here to offer his amendment. The Senator from Minnesota, Mr. Dayton, is on his way to offer his amendment. We also have the missile defense amendment to offer, and he indicated he would be happy to do that today. So we have a lot to do.
I was looking at my BlackBerry, which is giving this information, which is the reason we are here today:
Four U.S. servicemembers were killed Monday, shot repeatedly in the head during an ambush while they were on patrol in the Sunni Muslim stronghold of Ramadi. On Sunday, two servicemen were killed and 11 injured in an ambush on the road to the airport.
That is what this is all about today.
We ought to move this bill along, not only as quickly as we can, but with as much quality as we can. This is an important piece of legislation. We certainly understand that in 2 days, six Americans were killed in Iraq. We only know of 11 wounded, but I am sure a lot more than that were wounded. Each person in the Senate understands the importance of this legislation. We are reminded of that every day when we see news such as this.
Mr. WARNER. Mr. President, I thank my colleague for bringing up that point. I, too, am concerned, as is every Member of this body, about the daily, weekly loss of life and limb by our brave men and women in the Armed Forces. As the Senator says, this is their bill. That is what it is. It is their bill, whether they are privates or generals or admirals.
Might we accommodate the Senator from Ohio?
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Mr. WARNER. Mr. President, we are awaiting, and there is diligence on the other side in every respect, either the amendment of Senator Dayton or the amendment from Senator Bingaman. We have given them our second degrees in each case, which are now being studied. Until such time as one of the managers on the other side or these Senators appear, I suggest the absence of a quorum.
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AMENDMENT NO. 3460 TO AMENDMENT NO. 3459
Mr. WARNER. Mr. President, I send an amendment to the desk.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Virginia [Mr. Warner] proposes an amendment numbered 3460 to amendment number 3459.
Mr. WARNER. 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:
In lieu of the matter proposed to be inserted, insert the following:
SEC. 1022. REPORTS ON MATTERS RELATING TO DETAINMENT OF PRISONERS BY THE DEPARTMENT OF
DEFENSE.
(a) REPORTS REQUIRED.-Not later than 90 days after the date of the enactment of this Act, and every six months thereafter, the Secretary of Defense shall submit to the appropriate committees of Congress a report on the population of detainees held by the Department of Defense and on the facilities in which such detainees are held. The report may be submitted in classified form.
(b) REPORT ELEMENTS.-Each report under subsection (a) shall include the following:
(1) General information on the foreign national detainees in the custody of the Department during the six-month period ending on the date of such report, including the following:
(A) The total number of detainees in the custody of the Department as of the date of such report.
(B) The countries in which such detainees were detained, and the number of detainees detained in each such country.
© The total number of detainees released from the custody of the Department during such period.
(D) The nationalities of the detainees covered by subparagraph (A), including the number of detainees of each such nationality.
(E) The number of detainees covered by subparagraph (A) that were transferred to the jurisdiction of another country during such period, and the identity of each such country.
(2) Information on the detention facilities and practices of the Department for the six-month period ending on the date of such report, including for each facility of the Department at which detainees were detained by the Department during such period the following:
(A) The name of such facility.
(B) The location of such facility.
© The number of detainees detained at such facility over the course of such period and as of the end of such period.
(D) The capacity of such facility.
(E) The number of military personnel assigned to such facility over the course of such period and as of the end of such period.
(F) The number of other employees of the United States Government assigned to such facility over the course of such period and as of the end of such period.
(G) The number of contractor personnel assigned to such facility over the course of such period and as of the end of such period.
© APPROPRIATE COMMITTEES OF CONGRESS DEFINED.-In this section, the term "appropriate committees of Congress" means-
(1) the Committee on Armed Services and the Select Committee on Intelligence of the Senate; and
(2) the Committee on Armed Services and the Permanent Select Committee on Intelligence of the House of Representatives.
Mr. WARNER. Mr. President, let me first say I think our colleague has brought to the attention of the Senate through his amendment a very important subject. It is my hope and expectation that we can eventually have a meeting of the minds. I don't take great joy in putting a second-degree amendment up on important subjects such as this, but I felt it imperative so we can frame for our membership what I perceive as a very conscientious presentation by the Senator of a set of goals in which I concur with two-thirds of the Senator's objectives. But where I ask there be a reservation, those reservations are of such severity that I am compelled to put in the second-degree amendment.
I would like to walk through the amendment which the distinguished Senator put forth page by page.
The first section says:
Reports on matters relating to detainment of prisoners by the Department of Defense.
Ordinarily, a report is something we are happy to grant a colleague. But in this instance, I will point out where my concerns are.
First:
Reports required. Not later than 90 days after date of enactment of this Act, and every six months thereafter, the Secretary of Defense shall submit to the appropriate committees of the Congress a report on the population of detainees held by the Department of Defense and on the facilities in which detainees are held.
That is, have been held more than 30 days.
My understanding was originally it didn't have that, and 30 days to me is reasonable. The Senator also added that the report can be submitted now in classified form. Again, that is a very essential improvement.
But we then continue:
(b) Report Elements. Each report under subsection (a) shall include the following:
(1) General information on the foreign national detainees in the custody of the Department during the six-month period ending on the date of such report, including the following:
(A) The total number of detainees in the custody of the Department . . .
I think that is an important fact, and I simply say "as of the date of such report." I think that should be something which would be acceptable to the Senator.
Section (B) we leave standing.
The countries in which such detainees were detained, and the number of detainees detained in each country.
That is acceptable.
Section © we take out simply because we modified (A) to state as of date of such report, and I think (C) is cared for by
modifying (A) with date of such report.
Then we drop down:
The total number of detainees released from the custody of the Department during such period.
We accept that fully.
(D) The nationality of the detainees covered by subparagraph (A), including the number of detainees of each such nationality.
That, too, seems to us to be fine.
Then section (F)-no objection there. That says, "The number of detainees covered by subparagraph (A) that were transferred from jurisdiction of another country," so you can track them.
The Senator modified the original amendment. I am working from the original to show to date how much we have had meeting of the minds.
The Senator took out section (G). I will not trouble to talk about it.
We take out subsection (2). That is subsection (2) of the first paragraph of the amendment, report elements under (b).
As drafted, we delete for each foreign national detained by the Department of Defense during the 6-month period ending on the date of such report: No. 1, the name of the individual; No. 2, his or her nationality; the place at which they were taken into custody; the circumstances of being taken into custody; the place of detention; the current length of detention, or at least the duration of detention at the time of release. And on it goes.
Here is the problem. That bit of information, even though it were classified, were it ever to leak out-and regrettably, we know things of this nature will happen from time to time-it would be devastating because the enemy would know a great deal about custody and what we are trying to do with those individuals.
It seems to me there is far greater benefit to an enemy in such engagements as we must take prisoners than it would be of benefit to the legislative body to monitor that prisoners are properly being cared for. For example, the Durbin amendment we had the other day goes to potential abuses. That has been accepted. It is a major step forward to codify prohibitions against abuse of prisoners. We are all troubled by that.
To have in the custody of the Congress this type of information, even though it is locked up in S-407, or wherever it may be, potentially there is a document that could do great harm to our ability to conduct military operations during which we obtained detainees.
Then there is the following paragraph:
(3) Information of the detention facilities and practices of the Department for the six-month period ending the date of such report, including for each facility of the Department at which detainees were detained. . . .
That is fine.
(A) The name of such facility.
(B) The location of such facility.
We have no objection to that. In fact, the entire next page of the amendment, we accept. We come to the conclusion of the
amendment and no further objections. It simply is to the creation of a document that would have such detailed information that
is not essential to the Congress in our oversight of these detention facilities and the practice of detention, and if that document would ever get out, it would be a devastating blow to the intelligence system, to giving the information to the enemy, who we have among their presumably lost and missing persons, and the like.
I urge my colleagues, this is something we should scrutinize carefully. I have framed it in such a way that colleagues will have
to decide whether it is a second-degree amendment that prevails or the underlying amendment that prevails.
Therein, with the exception of one other mention just this morning, the committee staff, the majority and the minority, were
briefed on this document. It roughly looks to be 30 pages of unclassified material entitled "Department of Defense proposed"-just being proposed at the moment-"administrative review of the detention of enemy combatants at Guantanamo Bay, Cuba."
This is one of our facilities. The Secretary of Defense has established administrative review procedures to determine annually if enemy combatants detained by the Department of Defense at the U.S. Naval Base at Guantanamo Bay should be released, transferred, or continue to be detained, and so forth.
Much of it parallels what the Senator has in mind. I am confident after this morning's briefing the Congress will make several edits. I encourage the distinguished ranking member to engage our colleague, Senator Bingaman, a former member of our committee, to look at it also and see how we can improve and strengthen this. So this will soon be in effect.
The PRESIDING OFFICER. The Senator from New Mexico.
Mr. BINGAMAN. Would my colleague yield for a question?
Mr. WARNER. I yield.
Mr. BINGAMAN. I appreciate the cooperative approach my colleague has taken. I greatly respect his judgment on many of
these matters.
First, on the issue of whether revealing the name and identity of these people is a major security threat, we have obligated ourselves under the Geneva Convention to do exactly that with regard to information we are going to turn over to the Red Cross for every prisoner of war we take into custody.
The specific language in part V of the Geneva Conventions talks with respect to each prisoner of war:
. . . the information shall include, in so far as available to the Information Bureau, in respect of each prisoner of war, his surname, first names, rank, army, regimental, personal or serial number, place and full date of birth, indication of the Power on which he depends, first name of the father and maiden name of the mother, name and address of the person to be informed and the address to which correspondence for the prisoner may be sent.
That is what the Geneva Conventions requires.
Could we explore the possibility of just saying that the appropriate committees of the Congress should be entitled to the same information that we have committed ourselves to provide to the Red Cross with regard to all detainees?
Mr. WARNER. Mr. President, that is a very good question. I will take a few minutes to answer. It deserves a very considered answer.
I have thought this through. It is interesting, coincidentally over the weekend I dealt with the Department of Defense. I did not have a chance to brief my distinguished ranking member yet on the question of the Red Cross's participation in our situations, both in the Afghanistan detention facilities and the Iraqi detention facilities. I am speaking for myself.
I am very concerned about those problems over there. Our committee had several hearings on it. The issue comes up, as it should. It came up in the Judiciary Committee the other day, about the role of the Red Cross. I have learned a great deal about that role in a short period of time.
I had some familiarity when I was Secretary of the Navy and during the Vietnam conflict. The Secretary of Defense was at that time-I have served under three of them-Secretaries Melvin Laird and Jim Schlesinger. They were very conscientious about working with the Red Cross.
The Red Cross has done a remarkable job in this very difficult area, going into these prisons, monitoring them, and going back to the government host of the prisons and making corrections and trying, in some instances, to benefit the incarceration detainees in terms of their individual personal status.
The success of that program has been dependent on the absolute sanctity of that material and the fact that the observations of the Red Cross have not gotten into the public domain. We are working with the Department of Defense now, such that the Senate can be given the benefit of the Red Cross inspections in our facilities in Afghanistan and in Iraq. It will be my recommendation to the committee that we will have it in a classified briefing. But we are not, hopefully, going to retain any of those documents in the Senate.
Were that material to get out in some manner, we are told by the Red Cross, it would seriously limit their ability to do this magnificent work they do all over the world. If some nations-and only in a classified forum can I give those names-but some nations that now allow the Red Cross in to get information and to hopefully provide corrections to prisoners' treatment, if that had gotten out, that is the last time the Red Cross would get into that country to examine those prisons.
So we come down to the very basic fundamental issue about those detainees, whether they are in the United States or wherever they are in the world in these prisons, the Red Cross is helping in many instances. But they say if the information they write up and send back to the host country of the prisons gets into the public domain, forget it; they will be precluded from going on. So we would face a similar situation.
It is very difficult for me, one who has been privileged to be in this body now my 26th year, to just say I am concerned that
some material in classified form in the possession of the Senate could get out. But, regrettably, whether it got out from under the Senate or got out from another source and that source would then blame the Congress for leaking it-I don't know, we have all been through the leak scenario-it leads to a never-never land in this Government of ours.
But I urge that we consider this very detailed information which our colleague is seeking. The amendment in the second degree, which I am perfectly willing to withdraw to the extent we can come to a resolution and make it your first-degree amendment and no second-I believe we have to observe the practices with regard to this detailed information you are seeking.
Mr. LEVIN. I wonder if the Senator will yield.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. This is really a question for the sponsor of the amendment. I say to the Senator, I understand what you have just
suggested is that the information which we provide to the Red Cross be shared with Congress, not that the information which the Red Cross gives to us be shared with the Congress; is that correct?
Mr. BINGAMAN. Mr. President, in answer to the question, that is exactly right. It is not my suggestion that the Red Cross reports on conditions in prisons or anything else be provided to us. All I am saying is if our Department of Defense turns over information to the Red Cross-as it is required to do under the Geneva Conventions-we ought to have access to that.
Mr. WARNER. Fine.
Mr. BINGAMAN. Even in classified form, Congress ought to be able to know as much as the Red Cross knows about who we
are detaining in our facilities.
Mr. WARNER. Mr. President, I do not disagree in how you frame the issue, but I maintain my stance. Let me parse it very
carefully. I say to the Senator, you are saying that what we give the Red Cross-not what the Red Cross comes back and tells us we are doing right or wrong-what we give to the Red Cross can be shared with Congress?
Mr. LEVIN. That is the question by the Senator from New Mexico. It seems to me that makes good sense.
Mr. WARNER. Here is where I respectfully differ. If the information we give to the Red Cross were to leak out, then other
nations that are similarly following that practice will see this is now in the public domain and say: We are stopping, Red Cross, because we see it has gotten into the public domain of another country. Therefore, we don't want that to happen.
Mr. LEVIN. If the Senator would yield-and I guess I have the floor, but, in any event, this information the Senator from New Mexico is talking about is information we have which the executive branch has. Now, I believe the fear the Senator from Virginia just expressed is not that the Red Cross would leak it-because they do not-
Mr. WARNER. No.
Mr. LEVIN. They have proven they do not leak the information. They perform-I agree with the good chairman-a very valuable service as to what they do. But what it seems to me the chairman is saying is there is less confidence the legislative branch will protect the classification of this material than the executive branch will protect it. I do not think we can accept a premise that we are more likely to leak classified information here in the Congress than the executive branch is likely to leak it. As a matter of fact, recent history-
Mr. WARNER. Mr. President, I say to the Senator, I concede your point. You need not deliberate further. Fault lies on both sides, both branches of Government. All I am saying is-and I am informed by those who have greater knowledge about the procedures of the Red Cross than I; and I don't know whether it comes out of the executive branch or the Congress-further distribution of this information beyond one branch of Government to another branch of Government does increase the likelihood that somehow it gets out. And it will deal the Red Cross a very serious blow, I am told.
Mr. LEVIN. I wonder if the Senator from Virginia would consider this possibility as we explore ways of bridging the differences; and I, like our good friend, Senator Bingaman, very much appreciate, as always, the chairman's willingness to look for common ground. It seems to me the one sensitive area the executive branch has and that is in this amendment has to do with the name of the person.
For instance, it seems to me, if there is a number which is assigned to every prisoner-which I understand is true for every prisoner of war, every enemy combatant, or every civilian, for that matter, who is held in detention-it seems to me, if the number is given rather than the name, the rest of this information is very appropriate and will help in the oversight process.
The failure, it seems to me, to make clear to the world that we are going to abide by international conventions and that we are going to make sure our people are treated properly by our treating other people properly, that failure has cost us greatly. The purpose of the Bingaman amendment is clearly to get us back on track in terms of what our responsibilities are by giving Congress the ability to perform our oversight responsibility.
We do not have that ability now. We do not have this information. Without this information, we cannot perform the essential oversight which has been missing here, and I believe if it had been in place early enough perhaps it would have persuaded the administration to get back on course earlier than it has been persuaded.
But my specific question to the chairman would be-and I have not consulted with the sponsor of the amendment; I don't know whether he would be in an accepting mood-but if the number of the prisoner or the civilian who is being detained were substituted for the name, would that have the same problem?
Mr. WARNER. Mr. President, in other words, rather than the individual's name, that his number is No. 224-whatever it is? I would have to defer until I go to the heart of the experts. All I know is that the name-if we are detaining certain individuals and the enemy does not know whom we have captured, and they, therefore, have to shelve some of their plans, knowing that the persons who are missing from their roster, if they were to talk about the plans, they would make the plans less valuable to the enemy-I mean, I am just working through the obvious scenarios here.
Now, whether a number would suffice, I would like to go back to those who are dealing with this on a daily basis.
Mr. LEVIN. When the chairman does that I would perhaps propose that one other consideration be looked at, and that is, I understand we are obligated to provide the names to the Red Cross now, and those names go back to the families in order that the families can find their loved one, if that loved one is alive, or that brother, or father, or whoever. Now, I may be wrong in that, but it seems to me the purpose of the-
Mr. WARNER. Mr. President, it is interesting, over the weekend I had the opportunity, I say to my distinguished colleague, to visit the Department of Defense, and I was greatly impressed with an individual, who was a Member of the U.S. House of Representatives a decade or so ago, who is in charge of it. I will seek to have him come over right away and provide both sides with the expert to propound these questions. They are good questions. Let's see what we can do to work this thing out.
Mr. LEVIN. I thank the chairman. I believe we ought to try to work this out. This is really moving in an essential direction for our Nation and our troops. I commend the Senator from New Mexico for his leadership and thank the chairman. I think maybe we ought to lay this amendment aside temporarily. I do not know if-
Mr. REID. Mr. President, if the two managers will yield?
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. Mr. President, Senator Dayton is here to offer his amendment. He is going to take about 20 minutes. It is my understanding Senator McCain or someone on his behalf will second degree this amendment. Following that, Senator Harkin is here ready to offer a second-degree amendment to the Durbin amendment. That will be offered on behalf of Senators Harkin and Hatch, dealing with supplements.
Mr. WARNER. Yes. Mr. President, I think all that can be accommodated, so I join in the request at this time to lay aside the pending amendment in the second degree and the underlying amendment by our distinguished colleague from New Mexico and to then let the other Senators seeking recognition have the floor.
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Mr. WARNER. Mr. President, will the Senator yield for the purpose of allowing me to put a second-degree amendment at the desk so our colleagues can then begin to examine both as this very important debate is underway?
Mr. DAYTON. I yield to the chairman.
AMENDMENT NO. 3461 TO AMENDMENT NO. 3197
Mr. WARNER. Mr. President, I send to the desk, on behalf of Senator McCain, an amendment in the second degree.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Virginia [Mr. WARNER], for Mr. McCain, for himself and Mr. Warner, proposes an amendment numbered 3461 to amendment No. 3197.
Mr. WARNER. 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 perfect the matter proposed to be stricken)
In lieu of the matter proposed to be stricken, insert the following:
SEC. 842. WAIVER AUTHORITY FOR DOMESTIC SOURCE OR CONTENT REQUIREMENTS.
(a) AUTHORITY.-Subchapter V of chapter 148 of title 10, United States Code, is amended by adding at the end the following new section:
"A? 2539c. Waiver of domestic source or content requirements
"(a) AUTHORITY.-Except as provided in subsection (f), the Secretary of Defense may waive the application of any domestic source requirement or domestic content requirement referred to in subsection (b) and thereby authorize the procurement of items that are grown, reprocessed, reused, produced, or manufactured-
"(1) in a foreign country that has a Declaration of Principles with the United States;
"(2) in a foreign country that has a Declaration of Principles with the United States substantially from components and materials grown, reprocessed, reused, produced, or manufactured in the United States or any foreign country that has a Declaration of Principles with the United States; or
"(3) in the United States substantially from components and materials grown, reprocessed, reused, produced, or manufactured in the United States or any foreign country that has a Declaration of Principles with the United States.
"(b) COVERED REQUIREMENTS.-For purposes of this section:
"(1) A domestic source requirement is any requirement under law that the Department of Defense satisfy its requirements for an item by procuring an item that is grown, reprocessed, reused, produced, or manufactured in the United States or by a manufacturer that is a part of the national technology and industrial base (as defined in section 2500(1) of this title).
"(2) A domestic content requirement is any requirement under law that the Department of Defense satisfy its requirements for an item by procuring an item produced or manufactured partly or wholly from components and materials grown, reprocessed, reused, produced, or manufactured in the United States.
"© APPLICABILITY.-The authority of the Secretary to waive the application of a domestic source or content requirements under subsection (a) applies to the procurement of items for which the Secretary of Defense determines that-
"(1) application of the requirement would impede the reciprocal procurement of defense items under a Declaration of Principles with the United States; and
"(2) such country does not discriminate against defense items produced in the United States to a greater degree than the United States discriminates against defense items produced in that country.
"(d) LIMITATION ON DELEGATION.-The authority of the Secretary to waive the application of domestic source or content requirements under subsection (a) may not be delegated to any officer or employee other than the Under Secretary of Defense for Acquisition, Technology and Logistics.
"(e) CONSULTATIONS.-The Secretary may grant a waiver of the application of a domestic source or content requirement under subsection (a) only after consultation with the United States Trade Representative, the Secretary of Commerce, and the Secretary of State.
"(f) LAWS NOT WAIVABLE.-The Secretary of Defense may not exercise the authority under subsection (a) to waive any domestic source or content requirement contained in any of the following laws:
"(1) The Small Business Act (15 U.S.C. 631 et seq.).
"(2) The Javits-Wagner-O'Day Act (41 U.S.C. 46 et seq.).
"(3) Sections 7309 and 7310 of this title.
"(4) Section 2533a of this title.
"(g) RELATIONSHIP TO OTHER WAIVER AUTHORITY.-The authority under subsection (a) to waive a domestic source requirement or domestic content requirement is in addition to any other authority to waive such requirement.
"(h) CONSTRUCTION WITH RESPECT TO LATER ENACTED LAWS.-This section may not be construed as being inapplicable to a domestic source requirement or domestic content requirement that is set forth in a law enacted after the enactment of this section solely on the basis of the later enactment.
"(i) DECLARATION OF PRINCIPLES.-(1) In this section, the term 'Declaration of Principles' means a written understanding (including any Statement of Principles) between the Department of Defense and its counterpart in a foreign country signifying a cooperative relationship between the Department and its counterpart to standardize or make interoperable defense equipment used by the armed forces and the armed forces of the foreign country across a broad spectrum of defense activities, including-
"(A) harmonization of military requirements and acquisition processes;
"(B) security of supply;
"© export procedures;
"(D) security of information;
"(E) ownership and corporate governance;
"(F) research and development;
"(G) flow of technical information; and
"(H) defense trade.
"(2) A Declaration of Principles is underpinned by a memorandum of understanding or other agreement providing for the reciprocal procurement of defense items between the United States and the foreign country concerned without unfair discrimination in accordance with section 2531 of this title.".
(b) CLERICAL AMENDMENT.-The table of sections at the beginning of such subchapter is amended by inserting after the item relating to section 2539b the following new item:
"2539c. Waiver of domestic source or content requirements.".
SEC. 843. CONSISTENCY WITH UNITED STATES OBLIGATIONS UNDER TRADE AGREEMENTS.
No provision of this Act or any amendment made by this Act shall apply to a procurement by or for the Department of Defense to the extent that the Secretary of Defense, in consultation with the Secretary of Commerce, the United States Trade Representative, and the Secretary of State, determines that it is inconsistent with United States obligations under a trade agreement.
Mr. WARNER. I thank my colleague for his courtesy. We now undertake a very important debate on this subject.