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National Defense Authorization Act for Fiscal Year 2012

Floor Speech

Location: Washington, DC


Mr. McCAIN. Madam President, I fully support the conference report and the national defense authorization bill for fiscal year 2012. This is the 50th year the Congress will pass this, and I am now confident this bill will be signed into law by the President of the United States.

It is an important piece of legislation. I appreciate the participation of all Members, as we went through this bill in a relatively short period of time. There certainly was a lot of participation by almost every Member.

I am most appreciative, of course, of Senator Levin, whom I have had the honor of serving with for many years. Quite often we have spirited discussions on various issues, but my admiration and appreciation for his leadership is very large. He is a man of incredible patience--a quality some accuse me of lacking, I think correctly.

Senator Levin and his staff and our staff work very closely together throughout the year as we bring forth this Defense authorization bill. Obviously this bill provides for defense policy guidance and funding that is vital to our national security, provides the clearest indication to our men and women in uniform that the Congress cares about them and their families.

In testament to the importance of this legislation, as I mentioned, we have passed a defense authorization bill every year since 1961.

Let me remind my colleagues of the hard work that went into this bill. The bill is a product of 11 months of legislative effort in the Senate, 71 hearings and meetings on the full range of national security priorities. We reported our bill out of the committee with a 26-to-0 vote. We debated nearly 40 hours, disposed of 139 amendments, and the bill was overwhelmingly passed 93 to 7. After Senate passage on December 1, our staffs have worked around the clock for 9 days to put this together.

As Senator Levin mentioned, it authorizes $662.4 billion for national defense, which is $26.6 billion less than the President's request. It authorizes $530 billion for the base budget for the Department of Defense, and it goes on. We authorize a 6-percent increase in funding over last year's request for our special operations forces, who play a lead role in counterterrorism operations. We authorize over $2.4 billion to counter improvised explosive device activities. The IEDs still plague the men and women who are serving in Afghanistan.

Let me also mention some noteworthy provisions in this legislation.

The conference report includes strong, unambiguous language that recognizes that the war on terror extends to us at home and that we must address it as such. The language the Senate adopted regarding detainees recognizes both that we must treat enemy combatants who seek to do us harm as such and that we must be able to gain as much information from such individuals as possible regarding their plans to wage war against our citizens--I want to emphasize--without violating the rules of war, without violating the Geneva Conventions, without engaging in torture or waterboarding or any of the kinds of techniques that have stained America's honor in the 21st century.

I strongly believe the detainee provisions in the bill are constitutional and in no way infringe upon the rights of law-abiding Americans. Unfortunately, rarely in my time have I seen legislation so consistently misunderstood and misrepresented as these detainee provisions. The hyperbole used by both the left and the right regarding this language is false and misleading.

Let me be clear. The language in this bill will not affect any Americans engaging in the pursuits of their constitutional rights. The language does recognize that those people who seek to wage war against the United States will be stopped, and we will use all ethical, moral, and legal methods to do so.

I am very pleased that the administration has finally recognized that the language we have adopted merits the President's signature and will soon be signed into law. While we have made some technical changes to the detainee provisions, they remain substantially the same as passed by the Senate Armed Services Committee.

The Congress, in strong bipartisan majorities, especially in the Committee on Armed Services, is deeply concerned by the administration's flawed handling of detainees in the fight against terrorism.

It was Congress that took up this vital national security issue and drafted all the versions of these provisions and led the negotiations on all of the major compromises. Yes, we listened to the administration's concerns, as we should, and we took many of them into account. Unfortunately, the administration has fought these provisions every step of the way. They tried to have these provisions stripped from the Senate bill as a condition for bringing it to the floor for debate. When that did not work, they tried to have these provisions dropped from the bill through amendments on the floor. When that did not work, they urged the conferees to drop these provisions in conference or at least water them down into nothingness. Again and again, the administration failed. So for them now to try to claim credit for these provisions flies in the face of the historical record. Facts are stubborn, and when it comes to these detainee provisions, the fact is this: Congress has led and defined the debate, and the administration has finally conceded to that reality.

Let's establish once again what these detainee provisions do and do not do.

They would, among other things, reaffirm the military's existing authority to detain individuals captured in the course of hostilities conducted pursuant to the authorization of the use of military force.

The ``authority to detain provision'' in the conference report confirms that nothing in this section of the bill should 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.'' There could be nothing clearer than that statement.

This confirmation of the intent of the bill was inserted as a result of floor debate and negotiations with the Senator from California, Mrs. Feinstein, to make absolutely clear what Chairman Levin and I and members of the committee who have supported this legislation have said throughout--that this provision does not and is not intended to change the existing state of the law with regard to detention of U.S. citizens. This section simply restates the authority to detain what has already been upheld by the Federal courts. We are not expanding or limiting the authority to detain as established by the 2001 authorization for the use of military force.

The conference report also includes a provision requiring military detention for foreign al-Qaida terrorists who attack the United States--something this administration has been not only hesitant but completely unwilling to even consider until this legislation highlighted the inconsistency between claiming the authority to kill an al-Qaida member with drones overseas but not being willing to hold a captured al-Qaida member in military custody in the United States, even in a situation where the al-Qaida terrorist had penetrated our defenses and had carried out or attempted an attack inside the United States.

The authority to hold al-Qaida members in military custody, while completely consistent with the law of war that applies to enemy combatants, is not a straitjacket but is as flexible as the President desires to make it.

While we in Congress have given the President a statutory authority to use military custody for al-Qaida members as a tool to ensure that we are able to obtain timely, actionable intelligence, the President can exercise a broad national security waiver to this requirement--a broad national security waiver. Most important, this provision requiring military detention explicitly excludes U.S. citizens and lawful resident aliens.

The military custody provision in the final compromise authorizes the transfer of any detainee to civilian custody for trial in civilian court and leaves it up to the President to establish procedures for determining how and when persons determined to be subject to military custody would be transferred. The provision adopted in the conference report requires that such determination must not interfere with ongoing intelligence, surveillance, or interrogation operations.

All of this flexibility was added to the bill even before we began negotiations with the White House to make it clear that the intent of the Senate's provisions was not to tie the administration's hands but to give them additional means to defeat the most serious type of threat from al-Qaida to our country. The result of these Senate modifications to the original form of the provisions ensures that the executive branch has complete flexibility in how it first determines and then how it applies military custody for al-Qaida members who are captured after having attacked the United States or while planning or attempting such an attack.

Moreover, after meeting with FBI Director Robert Mueller, the Senate conferees added language in conference in response to his concerns about the impact on FBI operations confirming that nothing in this provision may be ``construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation, or any other domestic law enforcement agency, with regard to a covered person, regardless whether such covered person is held in military custody.''

It is the intent of the Senate conferees, in agreement with House colleagues on a bipartisan basis, that the FBI continue to execute the full range of its investigative and counterterrorism responsibilities and that any shift to military custody will be an administrative measure that does not limit in any way the FBI's authority.

I acknowledge that these issues were very controversial with some Members. These provisions were debated extensively--as thoroughly as any matter I have seen in recent memory--but I believe we have addressed in a positive way and have been responsive to concerns raised by the administration. Indeed, the Senate made changes both on the floor and during conference to ensure that the intent of the provisions was fully understood by the administration and others even before negotiations over the final form of the text began.

In many ways, as Chairman Levin has pointed out in many of his public statements and speeches on these detainee provisions, rarely has such misinformation, speculation, and outright misrepresentation been greater over what a bill actually does compared to what some from the left and right claim it does than has been the case with these detainee provisions. Whether 2012 campaign politics played a role in the characterization of these provisions or whether this was simply a case of not fully understanding the intent of the authors of these provisions I will leave to others to decide.

I point out again that I think my friend from Michigan Senator Levin displayed a great deal of courage in formulating what he thought was best for our Nation's security.

Regardless of the motivation that may have colored the debate until now, I believe that, by any responsible reading, these provisions will not impair the flexibility of the President or national security officials in protecting the United States and its citizens. The military custody provision, which has been the focus of much of this debate, provides flexibility to use either a civilian track or a military track for custody and eventual trial and leaves the details of implementation in the hands of the executive branch, as it is appropriate to do so. It preserves the current state of the law as it applies to the rights of U.S. citizens and lawful resident aliens.

In terms of FBI authority to conduct investigations and interrogations, as well as use other instruments of the investigative and criminal process, these provisions preserve all of the FBI's role and authority under existing law.

The conference report also includes, virtually unchanged, the Senate provision requiring a plan to normalize U.S. defense cooperation with Georgia and the sale of defensive weapons. U.S. defense cooperation with the Republic of Georgia has been stalled ever since Russia invaded that country 3 years ago. While there has been slow and minor progress to enable Georgia's armed forces to deploy to Afghanistan--which they have done in greater numbers than most of our NATO allies--precious little has been done to strengthen Georgia's ability to defend its government, people, and territory.

This provision would require the Secretary of Defense, in consultation with the Secretary of State, to develop a plan for the normalization of our defense cooperation with Georgia, especially the reestablishment of U.S. sales of defensive weapons. It puts the Congress on record as demanding a more normal U.S. defense relationship with Georgia, particularly on defensive arms sales.

The conference report includes a strong and important provision to sanction the Central Bank of Iran, to curtail Iran's ability to buy and sell petroleum through its Central Bank, and to prevent foreign financial institutions that deal with the Central Bank of Iran from continuing their access to the U.S. financial system. This provision, which was adopted on the Senate floor by a vote of 100 to 0, and the attempted assassination of the Saudi Ambassador here in Washington, DC, had a very positive and forceful effect on this bill being enacted by the Senate. This provision would force foreign financial institutions to make an important choice: Do they want to deal with the U.S. economy or with Iran's Central Bank?

The Treasury Department urged the conferees to make a series of changes to this provision, some of which would have narrowed its scope and weakened it. We rejected that course of action. We made some minor technical changes but kept the provision as the authors, Senators MENENDEZ and KIRK, intended. The conferees did, however, provide the Treasury Department the ability to more effectively implement this legislation by imposing strict conditions on foreign financial institutions that maintain ties to the Central Bank of Iran.

The conference report directs the Secretary of Defense to pause further spending on Guam in support of the relocation of 8,500 U.S. marines from Okinawa until Congress and the administration have had an opportunity to review and assess the impact of an estimated $20 billion spending initiative on Guam in the context of the full range of our national interests in the Pacific region. This pause will allow Congress to ensure that the taxpayer funds invested in overseas military force posture and basing will afford us the best opportunity to continue our strong alliances in the region, while pursuing new arrangements with emerging partners that support security and economic development.

The final agreed-upon provision includes a requirement for an independent study to offer views and suggestions from a range of regional experts on current and emerging U.S. national security interests in the Pacific and options for the realignment of U.S. military forces in the region. The conference report would restrict the use of $33 million in operation and maintenance funds for items on Guam that do not directly support military requirements, such as civilian schoolbuses, the construction of museums, and mental health facilities.

This provision should not be interpreted as a lack of U.S. commitment to realignment. The President has stated that we are shifting a lot of our attention to the Pacific region, and we understand the importance of the Pacific region in the 21st century.

Finally, the conference report includes a provision to require that the contract for the sixth slot of ``low-rate initial production'' for the Joint Strike Fighter be executed on a firm fixed-price basis. The Pentagon has thus far failed to incentivize the prime contractor to control costs. So a tougher measure, as embodied in the report, is warranted.

While I would have preferred the original Senate position that would have made the fixed-price requirement apply to the fifth lot currently being negotiated, I strongly support this provision. The chairman and I are committed to a close monitoring of this weapons system. We understand its importance. We also understand that the kinds of cost overruns that have characterized this system cannot be continued.

I am gratified that there are no earmarks in this bill. Unfortunately, it still contains over $1.4 billion in spending that was never requested by the President or by our military and civilian leaders in the Pentagon. Examples of funding authorized by this conference report include $255 million for additional M-1 tank upgrades the Army didn't want in order to keep the M-1 production line hot despite no compelling need to upgrade more tanks at this time; $325 million for Army National Guard and Reserve equipment not requested by the Army; $8.5 million for an Air Force R&D program called the Metals Affordability Initiative that the Air Force didn't consider a high enough priority to fund; $30 million for an industrial base innovation fund that the Pentagon didn't ask for; $200 million for the Rapid Innovation Program--created by Congress in last year's Defense authorization bill--that the Pentagon never asked for and which has about $439 million in funds left over from last year it hasn't figured out how to spend.

The bottom line is this: Congress will pump over $1.4 billion into things the Pentagon never requested and didn't think were a priority. The American taxpayers are not fooled by this exercise, and they have long ago lost patience with it. For all the many good things this conference report did, we still fell short of providing only the most essential needs and priorities of the Department of Defense as identified by our civilian and military leaders. A total of $1.4 billion is real money and could make an enormous difference to many Americans if properly applied to real priorities.

Those criticisms aside, as we look forward to the holidays ahead, I want all Senators to think about whom this report is really for--the men and women of our Armed Forces, who have served our Nation so bravely and so selflessly during the past 10 years of war. We owe it to them to pass this bill to demonstrate our support for them and the burden they carry for all of us and to show in a concrete way that the American people and the Congress stand with them and appreciate what they do for us. Passing this bill is really the very least we can do for so many who are willing to give all they have to defend us and our great country.

Finally, I thank Chairman Levin and Chairman McKeon and Ranking Member Smith for their dedication and cooperation in getting through the conference in a rapid but comprehensive and collegial manner. It is an honor to work with Senator Levin on such an important cause for the American people and for our men and women serving around the world in the Department of Defense, who risk their lives for us every day. They deserve positive action and your vote on this conference report.

I urge my colleagues to vote for the conference report of the fiscal year 2012 national defense authorization bill.


Mr. McCAIN. Madam President, I say to my friend from Michigan, I guess in our many years together we have seen the ups and downs and back and forth, but during our more than a quarter of a century of service we have always seen the bill coming to fruition and we have carried on in that tradition.

I wish also to point out to my colleagues, in a rather drab and dreary landscape of gridlock and acrimony, it is kind of nice to show that every once in a while there is a little ray of sunshine. So I hope we have been able to provide it for our colleagues, and I look forward to a unanimous, if not near unanimous, vote on the part of this body.

I hope if there are other colleagues who wish to come and speak on the bill--I know we have planned a colloquy on a provision of the bill concerning depots--so, hopefully, our colleagues who are very concerned about that issue might want to arrange to come to the floor so we can dispose of that.

I don't know of any other except, I think, Senator Udall, who wishes to come.


Mr. McCAIN. I happen to know for a fact that Senator Hagan is a strong defender of the men and women who serve her State, which has a very large military presence. I know they are very appreciative of her advocacy and service.

Before we get too hokey around here, maybe we should suggest the absence of a quorum.


Mr. McCAIN. Yes. That was the intention of the provision we wrote in committee, and it has been clarified by the addition of subsection (d). The statement of managers specifically states that the law enforcement and national security tools that are not affected by the provision include, but are not limited to, grand jury subpoenas, national security letters, and actions pursuant to the Foreign Intelligence Surveillance Act.


Mr. McCAIN. Yes. Our forces in Afghanistan can continue to transfer detainees to the host nation in accordance with existing agreements. This provision does not apply to battlefield transfers in--Afghanistan.


Mr. McCAIN. Madam President, for the benefit of my colleagues, there is a bit of interesting news today. When the demonstrations began in Moscow, I tweeted--I am a big believer in tweets--and said, ``Dear Vlad, the Arab Spring is coming to a neighborhood near you.''

Apparently, Mr. Putin was not amused, because an Associated Press headline read: ``Putin rejects any redo of fraud-tainted vote.'' The article also mentioned he was apparently on a program where he answered some questions. To quote the article:

The harsh comments and his insistence that the December 4 election was valid will likely fuel anger and may draw even bigger crowds of protest later this month.

Putin also lashed out at U.S. Senator John McCain, who had goaded him with a Twitter post saying ``the Arab Spring is coming to a neighborhood near you.''

Quoting Putin now, the article continues:

``He has the blood of peaceful civilians on his hands, and he can't live without the kind of disgusting, repulsive scenes like the killing of Gadhafi,'' Putin said, referring to McCain's role as a combat pilot and prisoner of war in Vietnam.

He went on to say:

``Mr. McCain was captured and they kept him not just in prison, but in a pit for several years,'' he said. ``Anyone (in his place) would go nuts.''

I know my friend from Michigan may think there is some veracity to the last sentence from Putin's comments, but I would mention that, in the context of the National Defense bill, in my view, the reset with Russia has not gone as we had hoped and it is an argument for some missile defense provisions in this bill in particular.

I think the reason why Mr. Putin reacted in the way he did is that I believe he has been shaken, as he should have been, by the massive demonstrations that have taken place in Moscow and other cities in Russia. It will be very interesting on December 24 to see how large or whether there will be demonstrations concerning a government that in many ways has turned into a cryptocracy, and the abuse of human rights, including the case of Mr. Magnitsky, who died in prison; and Mr. Khodorkovsky, who was again sentenced to more time in prison, and what Mr. Khodorkovsky and others have described as a death sentence.

These are very interesting times in which we live, and the world is a very interesting place. I think it argues for the United States of America to maintain its defenses, as we have in the consideration of this bill.


Mr. McCAIN. Mr. President, I join the chairman in the acknowledgment that many Members of the Senate have concerns with both the process and substance of the changes adopted in the Defense authorization conference report regarding statutes for depot activities in the Department of Defense. The protection of a core logistics capability within the Department has been a very controversial issue for many years, as the Department's depot enterprise employs over 77,000 personnel with an annual operating budget exceeding $30 billion. As we draw down from two wars which have consumed so much in resources and equipment, there will be much concern and debate about the continued workload and jobs at depots, shipyards, and arsenals, particularly in light of declining defense budgets.

I agree this debate and deliberation should have included all interested parties. While I support legislation that would have the clear intent of improving the effectiveness and efficiency of the Department's industrial activities, I was not and am not in support of moving forward on changes that have not been addressed with all members of the committee. The concerns expressed to us by Senator Inhofe, Senator Chambliss, Senator Collins, Senator Ayotte, Senator Shaheen, and others need to be reviewed in an open and transparent process.

As to the substance of the concerns, from what I can tell, there are opinions on the impact of these two provisions on both sides of the issue--from private industry and from the depots and their government civilian workers and unions.

I am aware some are very concerned that the changes in the conference report will upset the balance currently maintained between public and private performance of these activities, which could affect readiness. Changes to the definition of depot-level maintenance and repair have the potential to result in the shift of workload at shipyards. Changes to this provision should not be construed to restrict competition or to create any incentive to favor the public or the private sector as it relates to acquisition programs.

The narrowing of the statutes from core logistics to corps depot-level maintenance could be interpreted as congressional intent to eliminate the identification of core activities in the defense supply chain affecting arsenals and ammunition plants.

On the other hand, the inclusion of an expansive waiver provided to the Secretary of Defense to waive core requirements is very unsettling for every depot activity. Such a waiver could move significant amounts of depot work to the private sector.

Revisions to the definitions of ``commercial items'' to be exempted from core determinations could have an immediate detrimental impact to those depots that work on commercially available items of equipment, such as engines and transmissions of ground combat vehicles.

So many depots that do this sort of work are concerned about the impact. I agree we need to fully understand the impacts, real and unintended, from the implementation of these provisions. We will need to work closely with the Department of Defense to ensure that whatever changes or repeals we make are in the best interests of our military with the priority placed on readiness as well as efficiency of operations and fiscal responsibility.

I support the chairman and commit to giving this issue focused attention in the year ahead to ensure the measures taken in this year's bill are the right outcome for the Department of Defense and the taxpayers.

I yield the floor.


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