National Defense Authorization Act for Fiscal Year 2012
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Mr. NADLER. Mr. Chairman, nowhere in this bill is the National Drug Intelligence Center either authorized or funded at all. That was changed a few years ago. It used to be funded from DOD. It's now entirely funded and authorized in the Department of Justice. This amendment has no business in this bill. It ought to be in the authorization or in, perhaps, the appropriations bill for the Department of Justice.
The only reason that the parliamentarian might rule this germane is that the rule waives all points of order. Yet this should not be voted on. This should not be considered in this bill. It has nothing to do with this bill. It's authorized and appropriated in the Department of Justice bill.
Mr. FLAKE. May I inquire as to the time remaining?
The Acting CHAIR. The gentleman from Arizona has 3 minutes remaining.
Mr. FLAKE. I yield myself the balance of my time.
Let me just say that two successive administrations, one Republican, one Democrat, have either called for eliminating or severely reducing the funding that goes to the NDIC because, as we have heard before, the programs are duplicative, wasteful. And there is no doubt that some good work goes on there. Nobody is disputing that. But there is also good work that goes on at the ONDCP or the DEA or other drug enforcement agencies or other agencies that have that as part of their portfolio.
That's the problem here. For years and years, we have been funding programs just because a particular powerful Member of this body or somebody sought an earmark or several earmarks or earmarks over a series of years to fund particular institutions or programs. That's what we have here. That's the legacy we are left with here. And we are simply trying to say enough is enough. We have got to save money somewhere. And if we can't do it with a program like this, where can we do it? When are we going to get serious about this debt and deficit that we have?
So that's what we're doing here. The reason we're doing it on this is because we're seeking to strike authorization. As we know, if we don't have authorization for a program, it's more difficult for that program to be funded. Believe me, we will be back in the appropriations process to go after this funding as well, but we thought we ought to go here. This was ruled in order. It is germane to the bill. And that's why we are here.
Let me just stress again, we have to get serious about this fiscal situation we are in. If we can't get serious about a program like this that's been called duplicative and wasteful, and two successive administrations, one Republican, one Democratic, have urged to either eliminate or severely reduce funding for, and yet Congress keeps coming back and providing far more money than the administration even wants for this because they know there are other programs, other agencies, other institutions that are doing this same work, if we can't save money here, I don't know where we're going to save it, Mr. Chairman.
So I would urge adoption of the amendment. Let's do something here for the taxpayer and something for our defense and intelligence and our antidrug efforts by making sure that programs that are not effective end and that funding be placed elsewhere.
I yield back the balance of my time.
The Acting CHAIR. The question is on the amendment offered by the gentleman from Arizona (Mr. Flake).
The question was taken; and the Acting Chair announced that the ayes appeared to have it.
Mr. CRITZ. Mr. Chairman, I demand a recorded vote.
The Acting CHAIR. Pursuant to clause 6 of rule XVIII, further proceedings on the amendment offered by the gentleman from Arizona will be postponed.
AMENDMENT NO. 41 OFFERED BY MS. SCHAKOWSKY
The Acting CHAIR. It is now in order to consider amendment No. 41 printed in House Report 112-88.
Ms. SCHAKOWSKY. I would like to speak in favor of the amendment.
The Acting CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
At the end of subtitle F of title X, add the following new section:
SEC. 1068. FREEZE IN BUDGET OF DEPARTMENT OF DEFENSE UNTIL UNQUALIFIED AUDIT OPINIONS ACHIEVED.
(a) Freeze.--
(1) IN GENERAL.--Unless and until the requirement specified in paragraph (2) is met for the entire Department of Defense, except as provided in subsection (b), the aggregate amount of funds appropriated or otherwise made available for military functions administered by the Department of Defense (other than the functions excluded by subsection (c)) for a fiscal year may not exceed--
(A) in the case of fiscal year 2012, the aggregate amount of funds appropriated or otherwise made available for military functions administered by the Department of Defense (other than the functions excluded by subsection (b)) for fiscal year 2011; and
(B) in each fiscal year after fiscal year 2012, the aggregate amount of funds appropriated or otherwise made available for such functions for the previous fiscal year.
(2) REQUIREMENT FOR UNQUALIFIED AUDIT OPINION.--The requirement of this paragraph is that the Department of Defense (including every major Pentagon component and every major defense acquisition program of the Department) is certified by the Inspector General of the Department of Defense or an independent public accountant as achieving an unqualified audit opinion.
(b) Waiver.--The President may waive subsection (a) with respect to a component or program of the Department if the President certifies that applying the subsection to that component or program would harm national security or members of the Armed Forces who are in combat.
(c) Exclusion of Overseas Contingency Operations and Military Personnel Pay and Benefits.--In determining the aggregate amount of funds appropriated or otherwise made available for military functions administered by the Department of Defense for fiscal year 2012 or any subsequent fiscal year for purposes of subsection (a), there shall be excluded all amounts appropriated or otherwise made available--
(1) in any supplemental appropriations Act; or
(2) in any general appropriations Acts for--
(A) overseas contingency operations;
(B) military personnel, reserve personnel, and National Guard personnel accounts of the Department of Defense, generally title I of the annual Department of Defense appropriations Act; and
(C) wounded warrior programs of the Department of Defense.
The Acting CHAIR. Pursuant to House Resolution 276, the gentlewoman from Illinois (Ms. Schakowsky) and a Member opposed each will control 5 minutes.
The Chair recognizes the gentlewoman from Illinois.
Ms. SCHAKOWSKY. Mr. Chairman, I yield myself as much time as I may consume.
For those who are interested in fiscal responsibility, this amendment would freeze Department of Defense spending until the Pentagon is able to pass an audit--able to pass an audit. This freeze could be waived by the President if it would harm our national security. And my amendment excludes spending for Wounded Warriors and defense personnel accounts as well as for overseas contingency operations.
Though defense spending currently accounts for over 20 percent of our Federal budget, DOD remains one of the few Federal agencies unable to pass an independent audit. This leaves the Pentagon vulnerable to serious waste and fraud. A recent GAO review of selected major weapons systems found that $70 billion had been lost through waste, mainly due to ``poor management and execution problems.'' Tens of billions more have been paid to fraudulent contractors.
I remember back in 2002, then-Secretary of Defense Rumsfeld admitted that he could not account for $2.3 trillion in Pentagon expenditures. For over two decades, the Pentagon has been under obligation to face an audit, and currently it must be auditable by September 2017. But recent status reports have raised serious concerns that this goal will not be met.
Waste and fraud in the Pentagon have serious consequences, both for our fiscal stability and our national security. My amendment provides a real incentive for the Pentagon finally to pass an audit. It is irresponsible to continue what Secretary Gates has called the gusher of defense spending without ensuring that we know where taxpayer dollars are going.
I believe this is a commonsense idea. It is also a bipartisan one. My amendment is very similar to a proposal that Senator Coburn made to the National Commission on Fiscal Responsibility and Reform on which I also served last year. It is a constitutional requirement that ``a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.'' Well, these are very difficult financial times, and we're faced with difficult choices and the prospect of cutting critical government programs. This accounting of funds has become more important than ever, including the Pentagon.
I yield 1 minute of my remaining time to the gentlewoman from California, Barbara Lee.
Ms. LEE. Mr. Chair, I rise in strong support of this very commonsense amendment. And I want to thank my colleague, Congresswoman JAN SCHAKOWSKY, who has been such a strong leader on sensible and serious deficit reduction efforts.
This amendment is very similar to an amendment that I submitted to Rules. And I want to thank Congresswoman Schakowsky for continuing to move this forward, because it is just extremely important that the financial statements of the Defense Department be audited.
Where are our defense dollars going? We have no idea. Sadly, the Department of Defense Inspector General and the GAO have documented time and time again the Department's inability to answer this very basic question. Some of my colleagues may make the argument the Department of Defense is making so much progress on this issue in response to congressional engagement requiring the records to be audited by September 2017, but this is too late. Billions of dollars are going out of the door each month.
The American people deserve to know where our defense dollars are going. There can be no more blank checks and certainly no blank checkbook to be handed over to any President.
I thank the gen tle lady for yielding and for this very commonsense amendment.
Mr. FORBES. Mr. Chairman, I rise in opposition to the amendment.
The Acting CHAIR. The gentleman from Virginia is recognized for 5 minutes.
Mr. FORBES. Mr. Chairman, first of all, I want to applaud the gentleladies for the amendment they have brought forward because they have hit a true problem with the Department of Defense. There is a statute requiring that the Department of Defense audit their financial records, and they have failed do that. They didn't do it in 2007, didn't do it in 2008, didn't do it in 2009, didn't do it in 2010. They are not going to do it this year. But this is part of a bigger problem.
Mr. Chairman, one of the things that we have got to do for the national defense of this country, first of all, is determine what the true threat assessment is without having budgetary influences. The independent panel that reviewed our QDR has said that they are very, very concerned that our QDR, our defense strategies, are dictated more by the budget than they are by risk assessments. And I am proud of the fact that the chairman and the ranking member have fought very hard to make sure in this bill they have moved us in that direction.
Secondly, we've got to determine the true cost of defending the country based on those risk assessments. And thirdly, we've got to determine what the risks are if we don't do it. And the fourth thing, as the gen tle lady mentioned, we've got to know where our money is going, and right now we do not know that. But the unfortunate thing is this bill is just a bridge too far. It is a risky situation to begin cutting all of the funding from many of these operations and we are not cutting the missions.
While I agree with the gen tle lady's concern and think we need to work towards it, I am proud of the work that we have done in this committee this year to move that forward. I can assure the gen tle lady we are going to continue to work to hold DOD's feet to the fire and to make sure they're accountable for the dollars they spend. The American taxpayers deserve that.
But I hope we will reject this amendment because our men and women in uniform and the people of the United States also deserve to make sure we're doing everything possible to defend and protect this country, and I'm afraid this amendment would put that defense in jeopardy. For that reason, Mr. Chairman, I hope we will reject the amendment.
I reserve the balance of my time.
The Acting CHAIR. The gentlewoman from Illinois has 1 1/2 minutes remaining.
Ms. SCHAKOWSKY. Mr. Chairman, it seems to me, since we agree, that the
problem is that the Pentagon has never explained where its money is going, and because there are waivers within this, that anything declared in need of national defense, and we certainly take care of our troops, will be excluded from the legislation, that it is time, finally. It's not just the last year, the year before, the year before that. It's been about 20 years before the Pentagon itself has explained where all the money goes.
And being such a huge part of our budget, it seems like now would be a good time, particularly because there are so many open doors left in this so that our national security and our troops are in no way jeopardized by my bill. I would really appreciate all of us being able to work together to make sure that the taxpayers know where this huge amount of money is going. The time is long overdue.
I reserve the balance of my time.
Mr. FORBES. May I inquire as to how much time is remaining?
The Acting CHAIR. The gentleman from Virginia has 3 minutes remaining.
Mr. FORBES. Mr. Chairman, the gen tle lady makes a good point, it is past time this happened, but this is a very risky thing to do.
One of the things, these waivers are limited. The second thing is, it's very difficult for the President to come in and make sure he is making all the appropriate waivers. This could jeopardize monies that we are spending for training, money that we are spending for modeling and simulation to forecast risk assessments that may hit the United States and where they hit the United States.
I think we need to be very, very careful before we come in with a sledge hammer and begin hitting all of this funding across the board, that we make sure that we recognize we have a problem. But the key for us, Mr. Chairman, is to make sure we are very, very deliberate and very careful about how we address that problem.
I think we have done it in this bill. I think we have done it in a bipartisan manner. It was 60-1 in the bill, and I think, Mr. Chairman, I hope that we will reject this avenue because I don't think we can afford to just go in and carte blanche cut off all the funding, as much as I may wish we could do that. I think it's dangerous for the American people and for the defense of the country. I hope, once again, we will defeat the amendment.
I reserve the balance of my time.
Ms. SCHAKOWSKY. May I ask how much time remains?
The Acting CHAIR. The gentlewoman from Illinois has 30 seconds remaining.
Ms. SCHAKOWSKY. Vote ``yes.''
I yield back the balance of my time.
Mr. FORBES. I yield back the balance of my time.
The Acting CHAIR. The question is on the amendment offered by the gentlewoman from Illinois (Ms. Schakowsky).
The amendment was rejected.
AMENDMENT NO. 42 OFFERED BY MR. SMITH OF WASHINGTON
The Acting CHAIR. It is now in order to consider amendment No. 42 printed in House Report 112-88.
Mr. SMITH of Washington. I have an amendment at the desk.
Mr. McKEON. I ask unanimous consent that the debate time for consideration of amendment No. 42 be expanded by 10 minutes and that such time shall be equally divided and controlled by the gentleman from Washington (Mr. Smith) and myself.
The Acting CHAIR. Is there objection to the request of the gentleman from California?
There was no objection.
The Acting CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
Page 456, line 13, insert before the period at the end the following: ``, except for the purpose of prosecuting such individual in a United States court''.
Page 456, starting on line 14, strike subsection (b) and insert the following:
(b) Individual Described.--An individual described in this subsection is an individual who is not a citizen of the United States or a member of the Armed Forces.
Page 456, after line 23, insert the following:
(c) Transfer Limitation.--During fiscal year 2012, the Secretary of Defense may not use any of the amounts authorized to be appropriated in this Act or otherwise available to the Department of Defense to transfer any individual described in subsection (b) to the United States, its territories, or possessions, until 45 days after the President has submitted to the congressional defense committees the plan described in subsection (d).
(d) Comprehensive Plan Required.--The President shall submit to the congressional defense committees a plan for the disposition of each individual described in subsection (b) who is proposed to be transferred to the United States, its territories, or possessions. Such plan for each individual shall include, at a minimum--
(1) an assessment of the risk that the individual described in subsection (b) poses to the national security of the United States, its territories, or possessions;
(2) a proposal for the disposition of each such individual;
(3) the measures to be taken to mitigate any risks described in paragraph (1);
(4) the location or locations at which the individual will be held under the proposal for disposition required by paragraph (2);
(5) the costs associated with executing the plan, including technical and financial assistance required to be provided to State and local law enforcement agencies, if necessary, to carry out the plan;
(6) a summary of the consultation required in subsection (e); and
(7) a certification by the Attorney General that under the plan the individual poses little or no security risk to the United States, its territories, or possessions.
(e) Consultation Required.--The President shall consult with the chief executive of the State, the District of Columbia, or the territory or possession of the United States to which the disposition in subsection (d)(2) includes transfer to that State, District of Columbia, or territory or possession.
The Acting CHAIR. Pursuant to House Resolution 276, and the previous order, the gentleman from Washington (Mr. Smith) and a Member opposed each will control 10 minutes.
The Chair recognizes the gentleman from Washington.
Mr. SMITH of Washington. Mr. Chairman, I yield myself such time as I may consume.
This amendment has to do with whether or not to try anyone in Guantanamo or any non-U.S. citizen captured abroad going forward in Article 3 courts in the United States. The underlying legislation prohibits anyone currently at Guantanamo or anyone who would be brought there in the future and, for that matter, any non-U.S. citizen captured abroad from being tried in Article 3 courts.
This really grew out of the larger debate over whether or not to close Guantanamo Bay. But one thing I want to make clear, you can support my amendment even if you believe that Guantanamo Bay should remain open. Now, I don't. I believe that we should close it, that we should handle those terrorists, whether we handle them by military commission, by Article 3 court, or by indefinite detention, that they should not be held at Guantanamo. But you can still hold Guantanamo Bay open and support my amendment.
What my amendment says is we want to make sure that Article 3 courts are still a possibility for trying these terrorists. The main problem I have with the underlying bill is it takes that possibility off the table and requires either a military commission or indefinite detention, and I think that is a bad and dangerous policy.
Now, we have to understand that we have already tried and convicted over 400 international terrorists in our Federal courts, in our Article 3 courts. As we sit here right now, or as I stand here right now, we have over 300 convicted terrorists being held in prisons in the United States. There is no question that we can do this, no question that we can do it safely. By going in this bill and taking off the table the option of Article 3 courts, all we are doing is we are tying the hands of our Department of Justice and our President as they seek ways to bring terrorists to justice and take them off the battlefield.
Right now we have over 170 inmates at Guantanamo Bay. We don't know what to do with a fair number of them for a variety of different reasons. That undermines our ability to fight the terrorism threat that we are trying to confront. It doesn't help it. So I ask simply that we give the President all the tools in his toolbox.
I support military commissions. I support indefinite detention. In certain instances that's going to be necessary, but I also support our Article 3 courts that have over 200 years of history, that are some of the most respected courts in the world for their ability to bring swift and fair justice to all criminals.
We should not undermine our President's ability to make use of those courts in prosecuting our fight against the terrorists and, therefore, I urge you to support this amendment.
I will add one thing, actually. In my amendment, if the President is going to bring people from Guantanamo Bay to be tried here in Article 3 courts, he does have to notify Congress. He does have to establish that he feels that can be done in that particular case safely and fairly. It does require that. But I think more than anything it gives the President the option of Article 3 courts, which he needs in order to properly prosecute the war against terrorism.
I reserve the balance of my time.
Mr. McKEON. I rise in opposition to the amendment.
The Acting CHAIR. The gentleman from Washington is recognized for 10 minutes.
Mr. McKEON. I yield myself such time as I may consume.
My good friend and colleague, Ranking Member Smith, and I and our staffs and others have been working together for a long time to try to come to agreement, and we have come to agreement on many points of this bill, but there are a few little differences here.
His amendment would be a change and a weakening of existing law regarding restrictions relating to Guantanamo detainees. The National Defense Authorization Act of the year 2011, last year, prohibited the transfer of Guantanamo detainees to the United States, prohibited certain detainee transfers to countries overseas and prohibited the construction or modification of facilities in the United States to house Guantanamo detainees. Ranking Member Smith amendment's would relax all of these restrictions. His amendment would allow Guantanamo detainees and other detainees to be transferred to the United States to face prosecution.
I share his goal of seeking justice for victims of terrorism. However, I disagree that it's necessary to bring detainees to the United States to do so.
I feel strongly that many Guantanamo detainees and other law of war detainees overseas should be prosecuted in the military commission system instead of bringing them into the United States. We currently have multimillion-dollar facilities ready to try detainees for their war crimes at Guantanamo that are sitting empty.
Additionally, Guantanamo detainees who already have habeas protection would likely be granted further constitutional rights if brought onto U.S. soil. I strongly oppose Ranking Member Smith's amendment. There is no need to bring Guantanamo or other law of war detainees into the United States.
And with our increasing concerns relating to the recidivist rates and activities of Guantanamo detainees, there is also no reason to loosen restrictions on transferring detainees overseas to countries where they are likely to return to the fight and threaten our men and women in uniform, U.S. citizens, or the U.S. homeland.
I strongly oppose this amendment.
I reserve the balance of my time.
Mr. SMITH of Washington. I yield 2 minutes to the gentleman from Rhode Island (Mr. Langevin).
(Mr. LANGEVIN asked and was given permission to revise and extend his remarks).
Mr. LANGEVIN. I thank the gentleman for yielding.
Mr. Chairman, I rise today in support of the amendment offered by my colleague and the ranking member, Mr. Smith of Washington, to strike language in the bill concerning the transfer of detainees to U.S. soil for prosecution.
Mr. Chairman, simply put, this amendment does not require that detainees be transferred to U.S. soil. It simply allows a range of options for prosecution of terror suspects and supports our most sacred national values.
As currently written, this legislation ties our hands at a crucial time in Gitmo's history. It's important to note that, as of today, over 400 terrorism convictions have occurred in U.S. Federal courts since 9/11. Prosecuting terrorists in the U.S. is just one of many options, including military commissions and detainee transfers, which must be available in order to bring these terrorists to justice.
Now, a ``yes'' vote for the amendment is a vote for our national values, for due process, and for leaving all our prosecutorial options on the table when dealing with the world's most hardened terrorists.
Again, I want to thank the gentleman from Washington for his thoughtful amendment. Again, this does not require that detainees be transferred to U.S. soil. It just leaves that potential option on the table if the President so deems that that would be an option that should be exercised.
Mr. McKEON. I yield 2 minutes to my friend and colleague, the gentleman from Texas (Mr. Thornberry).
Mr. THORNBERRY. Mr. Chairman, I think the bottom line here is that the American people have made their views on this subject quite clear, and their views are they do not want Guantanamo terrorists brought here to our homeland. And that view has been reflected in legislation that was passed even in an overwhelmingly Democratic Congress during the last term.
And I would suggest that there are good reasons that the American people feel that way, that they don't want terrorists brought here to our homeland. Part of that reason, I would suggest, is that the administration has not done a lot to promote confidence in its ability to handle these situations. They come up with one plan, they get criticism, and they back off. It's back and forth. And so we have had needless delays ever since this administration has been in office because, frankly, they have been inept when it comes to having a plan that deals with terrorists that the American people can trust.
Now, maybe if we had a different history there could be some greater confidence in giving greater options, as the gentleman wants to do, or to having some other possibilities. But we cannot rewrite history, and the trust is simply not there.
Instead, what we have are some rather petulant
comments by the Attorney General saying that, well, they still want to close Guantanamo and they still want to try them in Article 3 courts even though the law is the other way and the opinion of the American people is clearly the other way. So I believe that the current law that we had in last year's bill should be the same policy for next year.
I do think it's important to point out that this only applies to the coming fiscal year. This is not a forever thing. But this does continue the ban on bringing terrorists here to our homeland for the coming fiscal year. If you're given the history of where we've been and where we are, that's what the American people want.
Mr. SMITH of Washington. Mr. Chairman, I yield 2 minutes to the gentleman from New York (Mr. Nadler).
Mr. NADLER. I thank the gentleman for yielding.
Mr. Chairman, this amendment is not about closing Guantanamo. As was said before, it does not demand the closing of Guantanamo. It does say that detainees, whether they're held at Guantanamo or held somewhere else, can come to the United States if the administration decides that they should be tried in a regular court or can be tried in the military court at Guantanamo or presumably even in a military court somewhere else.
We keep talking about terrorists. Some of these people are terrorists. Some are accused of being terrorists and are not. Some were simply picked up by some rival group in Afghanistan and sold for $5,000 for a bounty to American troops and labeled as terrorists. And it may be that the prosecuting authorities, that the military authorities decide that it will be better justice or for the convenience of the Armed Forces to have this person tried in a regular court. Now, we know that the regular courts have convicted 470, I think, terrorists; whereas, the military courts have convicted all of five or six.
We also know that the statutory underpinnings of the military courts are under challenge and will be under challenge in front of the courts and that anyone convicted there is probably going to go for years before that conviction is affirmed by the Supreme Court. So it may very well be that in some or many cases or a few cases it makes sense from justice and from operational efficiency to try people in a regular court as we have done since the Declaration of Independence.
That's what the gentleman's amendment does. It gives the executive
branch the power, the discretion, and the authority to make intelligent decisions. We can all agree or disagree whether the current or next administration makes intelligent decisions. That's what political debate is about. But we shouldn't tie their hands. We should let them use military tribunals; although, I hope they do that very sparingly. We should let them use Article 3 courts as American tradition and justice would normally dictate, and we should stand on our Constitution and our traditions of due process. And, therefore, I support the amendment.
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