Floor Statement on the National Defense Authorization Act for Fiscal Year 2012
Thursday, November 17, 2011
Mr. President, on behalf of the Senate Armed Services Committee, I am pleased to bring S. 1867, the National Defense Authorization Act for Fiscal Year 2012, to the Senate floor. The Armed Services Committee approved the bill by a unanimous, 26-0 vote. This the 50th consecutive year that our committee has reported a defense authorization act. Every previous bill has been enacted into law.
I want to thank all of the Members and staff of the Senate Armed Services Committee for the commitment that they have shown to the best interests of our men and women in uniform as we have developed this legislation. Every year we take on tough issues and we work through them on a bipartisan basis, consistent with the traditions of our committee.
I want to particularly thank Senator McCain, our Ranking Minority Member, for his strong support throughout the process. The unanimous committee vote in favor of this legislation would not have been possible without his cooperation and support.
We were delayed in getting this year’s bill to the Senate floor by two issues that have arisen since the time that the Armed Services Committee approved the first version of this bill – S. 1253 – in late June.
First, Congress enacted the Budget Control Act of 2011, which mandated deep reductions in discretionary spending, including defense spending. The initial bill reported by the Armed Services Committee would have cut the President’s budget request for national defense programs by more than $6 billion. The Budget Control Act, which was adopted after our initial bill was reported, requires an additional $21 billion in reductions.
Second, the Administration and others expressed misgivings about the detainee provisions in the initial bill, although the provisions in our initial bill represented a bipartisan compromise that was approved by the Committee on a 25-1 vote. Many of these concerns were based on misinterpretations of the language in that bill. Nonetheless, we have worked hard to address these concerns.
First, relative to the additional $21 billion in budget cuts, we consulted closely with the Department of Defense before identifying these cuts. We believe that the reductions we decided upon can be accomplished without an adverse impact on our troops or their vital missions, and without significant increase in risks to our national security. The committee report which accompanied the initial bill (Senate Report 112-26) did not address these cuts, but is otherwise applicable to this bill as well. So the new cuts are not addressed in that Senate report because these new reductions came after that Senate report was made. For this reason, I ask that a summary of the cuts be included in the record immediately after my statement.
Second, the new bill would modify the detainee provisions to address concerns and misconceptions about the provisions in our initial bill. In particular, the new bill:
First, modifies section 1031 of the bill, as requested by the Administration, to assure that the provision, which provides a statutory basis for the detention of individuals captured in the course of hostilities conducted pursuant to the 2001 Authorization for Use of Military Force (AUMF), to make sure that those provisions and that statutory basis is consistent with existing authority that has been upheld in the courts and neither limits nor expands the scope of activities authorized by the AUMF.
And it also modifies sections 1033 and 1034 of the bill, as requested by the Administration, to impose one-year restrictions, rather than permanent limitations, on the transfer of GITMO detainees to foreign countries and on the use of DOD funds to build facilities in the United States to house detainees who are currently at GITMO.
We were unable to agree to the Administration proposal to strike section 1032 – the provision that requires military detention of certain al Qaeda terrorists, subject to a national security waiver. We did, however, adopt a number of changes to the provision. In particular, we modified the provision so that it:
Clarifies that the President gets to decide who makes determinations of coverage, how they are made, and when they are made – ensuring that Executive Branch officials will have flexibility to keep any covered detainee in civilian custody or to transfer any covered detainee for civilian trial at any time.
Second, we clarify that there is no interruption of ongoing surveillance and intelligence gathering activities or of ongoing law enforcement interrogation sessions.
There have been mis-statements, misimpressions, misinterpretations of the provisions of our bill relative to those issues. We clarify them to make sure that it is clearly understood by this body and by the American people that will be the – repeating – it is the Executive Branch, determined by the President, by people that he appoints, who will make determinations of coverage, how they are made, when they are made, so that it ensures the flexibility that the Executive Branch wants to keep any covered detainee in civilian custody or to transfer any covered detainee for civilian trial at any time. It’s been suggested that ongoing surveillance and intelligence-gathering activity by law enforcement people would be interrupted, that their interrogation might be interrupted. It is very explicitly clear in this bill that there is no such interruption, there is no such interrogation session interruption or surveillance interruption or intelligence-gathering activities interrupted. The process to make sure that doesn’t happen is in the President’s hands.
Administration officials reviewed the draft language for this provision the day before our mark-up and recommended additional changes. We were able to accommodate those recommendations except for the Administration request that the provision apply only to detainees who are captured overseas. And theres a good reason for that.
Even here, the difference is relatively modest, because the provision already excludes all U.S. citizens. It also excludes lawful residents of the United States “except to the extent permitted by the Constitution.” The only covered persons left are those who are illegally in this country, or who arrive as tourists or on some other short-term basis. That’s a small remaining category, but an important one, because it includes the terrorist who clandestinely arrives in the United States with the objective of attacking military or other targets here.
Contrary to some statements that I have seen in the press, the detainee provisions in our bill do not include new authority for the “permanent detention” of suspected terrorists. Rather, the bill uses language provided by the Administration to codify existing authority that was adopted by both the Bush Administration and the Obama Administration and that has been upheld in the federal courts. Moreover, the bill requires for the first time that any detainee who will be held in long-term military custody anywhere in the world would have access to a process that includes a military judge and a military lawyer. I want to repeat that, Mr. President. For the first time, this bill provides that in determining a detainee’s status, that that detainee will have access to a lawyer and to a military judge. That is not the case now.
Nor would the bill preclude the trial of terrorists in the civilian courts, as some have erroneously asserted. As a matter of fact Mr. President, it’s the contrary. The bill expressly authorizes the transfer of any military detainee for trial in the civilian courts at any time. An amendment that eliminated thatauthority was defeated in the Armed Services Committee on a bipartisan, 19-7 vote during our mark-up of the initial bill.
The bill would not require the interruption of ongoing surveillance operations or ongoing law enforcement interrogations of suspected terrorists, as some have incorrectly asserted. The opposite is the case, because we have included language in the bill that specifically precludes these possibilities. The bill also provides that the President, not Congress, will decide who makes determinations of whether a detained person is in the narrow class covered, and the President will decide how and when these determinations are made.
The bill would not require that al Qaeda terrorists who are captured on American soil be transferred to military custody, because it includes an easily effectuated national security waiver. With this waiver authority, Executive Branch officials may keep any detainee in civilian custody or move any detainee to civilian custody if they choose to do so.
The provision provides the Executive Branch flexibility to choose the most appropriate course of action for al Qaeda terrorists whom we capture, including detention in civilian custody. That was the intent of the original language and it has been clarified in the bill before us. I recognize that the Administration remains unsatisfied with this provision, but we have gone a long way to address their concerns.
Now what about the dollar provisions in this bill? The bill that we bring to the floor today would authorize $662 billion for national defense programs – $27 billion less than the President’s budget request and $43 billion less than the amount appropriated for fiscal year 2011. I am pleased that we were able to find these savings without reducing our strong commitment to the men and women of our armed forces and their families and without undermining their ability to accomplish their important national security missions. In this time of fiscal problems for our nation, every budget must be closely examined to identify savings, and the Department of Defense budget is no exception.
This bill contains many important provisions that will improve the quality of life of our men and women in uniform, provide needed support and assistance to our troops on the battlefield, make the investments we need to meet the challenges of the 21st century, and provide for needed reforms in the management of the Department of Defense.
First and foremost, the bill before us continues the increases in compensation and quality of life that our service men and women and their families deserve as they face the hardships imposed by continuing military operations around the world. For example, the bill would:
- Authorize a 1.6 percent across-the-board pay raise for all uniformed military personnel and extend over 30 types of bonuses and special pays aimed at encouraging enlistment, reenlistment, and continued service by active-duty and reserve military personnel;
- The bill provides that annual increases in TRICARE Prime enrollment fees in future years will not exceed the percentage increase in retired pay;
- The bill authorizes $30 million in supplemental impact aid and related education programs for the children of service members;
- The bill authorizes service secretaries to carry out programs to provide service members with job training and employment skills training to help prepare them for the transition to private sector employment; and
- And it authorizes the service secretaries to waive maximum age limitations to enable certain highly qualified enlisted members who served in Iraq or Afghanistan to enter the military service academies.
The bill also includes important funding and authorities needed to provide our troops the equipment and support that they will continue to need as long as they remain on the battlefield in Iraq and Afghanistan. For example, the bill:
- Fully funds the President’s request for $3.2 billion for the development, testing, production, and sustainment of the MRAP vehicles and new MRAP All Terrain Vehicles needed to protect our troops against Improvised Explosive Devices;
- It authorizes $11.2 billion to train and equip the Afghan National Army and Afghan Police – the funding level recommended by the Commander of U.S. Central Command after consultation with the commander of U.S. and Coalition forces in Afghanistan. The purpose here is to grow the capabilities of these security forces to prepare them to take over increased responsibility for Afghanistan’s security as we begin reductions in U.S. forces;
- The bill provides $400 million for the Commanders’ Emergency Response Program in Afghanistan and $400 million for the Afghanistan Infrastructure Fund to support projects that enhance the counterinsurgency campaign;
- The bill extends the authority of the Department of Defense to conduct a program for the reintegration of former insurgent fighters into Afghan society;
- The bill establishes a new Joint Urgent Operational Needs Fund to allow the Department to rapidly field new systems in response to urgent operational needs identified on the battlefield; and
- It provides the Central Command (CENTCOM) commander new contracting authorities needed to stop the flow of money through U.S. contracts to persons who are actively opposing U.S. forces in Afghanistan.
The bill contains a number of provisions that will help improve the management of the Department of Defense and other federal agencies. For example, the bill would:
- Address shortcomings in DOD’s management of operating and support costs, which are estimated to constitute 70 percent of the lifecycle costs of major weapon systems;
- The bill freezes DOD spending on contract services at fiscal year 2010 levels and require the Department to take a number of common-sense steps to achieve savings in this area;
- The bill adds $32 million for Department of Defense corrosion prevention and control, and requires implementation of the recommendations of a recent congressionally-mandated report on corrosion control on the F-22 and F-35 programs;
- The bill improves the management of defense business systems by strengthening the authority of the Department of Defense’s chief management officers in the investment review process and ensures that this process covers existing systems as well as new ones; and
- The bill adds $43 million to enable the Department of Defense IG to provide more effective oversight and help identify waste, fraud, and abuse in DOD programs, especially in the area of procurement.
In light of the budget constraints we face this year, the committee worked hard to keep funding increases of any kind to a minimum. We added the following items:
- $66 million for unfunded requirements identified by military leaders;
- $90 million for investments in programs like the DOD IG and corrosion control that have high payback rates;
- $63 million for critical investments in intelligence and cybersecurity improvements;
- $497 million for increased funding needed to ensure the efficient execution of ongoing Department of Defense programs; and
- $270 million for a handful of broad-based, competitive programs needed to help us keep our leadership in military technology.
I continue to believe that it would be wrong for us to give up the power of the purse given Congress in the Constitution. I don’t believe that the Executive Branch has a monopoly on good ideas; in fact, I think that we are more often more receptive to creative, new ideas that can lead to advances in the national defense than the defense bureaucracy is. Nonetheless, there are no earmarks in this bill.
Finally, I would like to discuss four major issues in the bill that were the subject of extended discussion and debate in the course of our mark-up this year.
First, this bill includes provisions that would require sound planning and justification before we spend more money for Marine Corps realignment from Okinawa to Guam and on tour normalization in Korea. These provisions follow detailed oversight that Senators Webb, McCain and I have conducted over the past years. In particular, the bill:
- Prohibits the expenditure of funds for Marine Corps realignment from Okinawa to Guam until we receive an updated force lay-down and a master plan detailing construction costs and schedule of all projects necessary to carry it out;
- The bill requires the Department of Defense to study moving Marine Corps aviation assets currently at Marine Corps Air Station Futenma to Kadena Air Base, and the feasibility of relocating some or all Air Force assets currently at Kadena Air Base, rather than building a replacement facility at Camp Schwab that is unrealistic and unaffordable; and
- The bill prohibits the obligation of funds for Tour Normalization on the Korean Peninsula until the Secretary of the Army provides Congress with a master plan including all costs and schedule projections to complete the program, and the Director of Cost Assessment and Program Evaluation performs an analysis of alternatives justifying the operational need.
The Department of Defense’s current plans for Okinawa, Guam, and Korea were developed years ago, in a different fiscal environment, and are projected to cost billions of dollars more than anticipated. At a time of tight budgets, we owe it to the Department of Defense and to the taxpayers to insist on a close examination and strong justification before we proceed.
Second, the committee adopted an amendment to strike all funding for the Medium Extended Air Defense System (MEADS). In February, the Department of Defense announced that, after investing more than $1.5 billion in the MEADS program, the program remained a high risk and the additional funding needed to field the system was unaffordable. However, the Department declined to terminate the program, because the Memorandum of Understanding with our allies on which the program is based commits us to continued funding even if we withdraw from the program. For this reason, DOD requested $406 million in funding for the continued development of a system that it has no intention of fielding.
The committee amendment eliminated this funding. We recognize that under the Memorandum of Understanding, our decision not to fund this program could require the United States to pay for a program in which it is no longer participating. However, the committee concluded that the course proposed by the Department is untenable and that the Department should explore all options with our allies before continuing to fund a program which we no longer need.
Third, our committee members share both a deep concern about the rising cost of the Joint Strike Fighter program, on which we are now projected to spend more than $1 trillion (including operation and sustainment costs), and a strong belief that the Department of Defense must take stronger action to contain these costs.
The committee unanimously adopted an amendment requiring that the next JSF contract be entered on a fixed-price basis, and that the contractor assume full responsibility for all costs above the target cost specified in the contract. This amendment puts the contractor on notice that we have lost patience with continued overruns on the program, and are determined to protect the taxpayer from further cost increases – without unnecessarily jeopardizing the heavy investment that we have already made in the program by prematurely terminating the program. And Sen McCain has taken really the active lead in this effort and it’s a very critically important effort for our taxpayers.
Finally, the bill includes a bipartisan compromise provision regarding detainee matters as I have made reference to before, a series of important issues related to detainees. I have already described the changes we made in the new bill, but I think it is worth summarizing all of the detainee-related provisions in the bill:
- The bipartisan compromise would codify the military’s existing detention authority, as stated by both the administration of President Bush and the administration of President Obama and approved in the courts.
- Second, the bill would require military detention for a core group of detainees who are part of al Qaeda (or an associated force that acts in coordination with or pursuant to the direction of al Qaeda) and who participate in planning or carrying out attacks or attempted attacks against the United States or its coalition partners. That is a defined core group of detainees. This provision includes a national security waiver, and includes language expressly authorizing the transfer of detainees for trial in civilian courts.
- It continues conditions on the transfer of GITMO detainees to foreign countries, including certification requirements to be met before a transfer may take place. Contrary to what some have said, this provision does not prohibit transfers from GITMO. In fact, it is less restrictive of such transfers than legislation passed in the last Congress and signed by the President. In particular, this year’s provision includes a national security waiver that is designed to address concerns expressed by the Secretary of Defense about a similar restriction included in last year’s authorization and appropriation acts.
- The bill contains the same limitation on the use of DOD funds to build facilities in the United States to house GITMO detainees that has been included in past authorization and appropriations acts. This provision applies only to Department of Defense funds, it does not prohibit the use of Department of Justice funds that might be needed in connection with a transfer for the purpose of a criminal trial, and it does not prohibit the closure of GITMO.
- The provisions require the Department of Defense to issue procedures addressing ambiguities in the review process established for GITMO detainees. This provision clarifies, but does not overturn, the Executive Order issued by the President earlier this year.
- The provisions require the Department of Defense to establish procedures for determining the status of detainees including, for the first time, a military judge and a military lawyer for any detainee who will be held in long-term military custody.
- The bill clarifies procedures for guilty pleas in trials by military commission. This provision would require a separate trial on the penalty with a unanimous verdict needed to impose the death penalty. So while a death penalty could be imposed by a commission, the detainee would have no assurance of that result. Those are the detainees who want that assurance so they can make themselves martyrs.
As I have already mentioned, these provisions have been substantially modified as a result of extensive discussions with Administration officials. While we did not make all of the changes requested by the Administration, we adopted many of them, probably most of them, and made additional changes to address specific concerns raised by Administration officials.
Mr. President, as we are here today, we have 96,500 U.S. soldiers, sailors, airmen and Marines on the ground in Afghanistan, with 23,000 more remaining in Iraq. While there are issues on which we may disagree, we all know that we must provide our troops the support they need as long as they remain in harm’s way. Senate action on the National Defense Authorization Bill for Fiscal Year 2012 will improve the quality of life of our men and women in uniform. It will give them the tools that 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 them and appreciate their service.
I look forward to working with my colleagues to promptly pass this important legislation. And as I yield the floor again, I want to thank Sen. McCain, all the members of our committee for their hard work on this bill, and our staffs for their extraordinary capability. And again, I want to thank personal Sen. McCain for everything that he has done to make it possible for us to get to the floor at this time.