National Defense Authorization Act for Fiscal Year 2012

Floor Speech

BREAK IN TRANSCRIPT

Ms. AYOTTE. Mr. President, as a member of the Senate Armed Services Committee and as the ranking member of the Readiness Subcommittee, I wish to speak for a few moments and comment on the National Defense Authorization Act.

I will begin by thanking the majority leader for honoring his commitment to bring the National Defense Authorization Act to the floor for debate, amendment, and passage. As Leader Reid pointed out this morning, this would have been the first time in a half century in which we would not have passed a national defense authorization bill. In the midst of two wars, with our brave sons and daughters and husbands and wives fighting in Iraq and Afghanistan, with our country facing a serious threat from radical Islamist terrorists, that would have been unacceptable.

I very much thank Chairman Levin and Ranking Member McCain for their leadership. In this era that has been characterized by gridlock and partisanship in Washington, the Armed Services Committee has represented a welcome exception. The Senate Armed Services Committee has a long-enjoyed, well-deserved reputation for professionalism and bipartisanship as we work across party lines to support our troops and their families who sacrifice so much for our country to keep us safe.

This bipartisan spirit is reflected by the fact that the Armed Services Committee unanimously reported the initial Defense authorization bill out of committee this summer, and did so again this week, after reducing the authorization levels consistent with the requirements we need to meet, in light of the fiscal crisis our country faces, and after revising the detainee compromise to take into consideration some of the administration's concerns.

This year, once again, the quality of Senator Levin's and Senator McCain's leadership is reflected in the quality of the legislation the Armed Services Committee has produced. This bill will ensure that our war fighters have what they need to accomplish their missions, protect themselves, and defend our country.

I am especially proud of the work of the Readiness Subcommittee. It has been a pleasure to work with Chairman McCaskill. Our committee made significant, well-informed reductions that achieve taxpayer savings without endangering our military readiness.

However, going forward, I wish to raise one issue. We have to guard against excessive cuts to our readiness accounts that will leave our troops and our Nation less prepared for future contingencies. In light of the supercommittee meeting in Washington, we have to come to an agreement to avoid what Secretary Panetta has described as catastrophic and a deep concern for our national security if those sequestration cuts occur.

I am particularly pleased key provisions of the Brown-Ayotte ``no contracting with the enemy'' legislation are included in the bill. This provision will make it easier for the Defense Department, contracting officials in Central Command area operations, to void contracts with contractors that, unfortunately, in some instances, have funneled taxpayer dollars to our enemies.

Let me conclude by saying that, again, I very much appreciate the leadership and bipartisan nature of the work done on the Armed Services Committee. This is a very important bill that I am very glad we are going to take up and fully debate in the Senate. I certainly urge my colleagues to pass this bill.

BREAK IN TRANSCRIPT

Ms. AYOTTE. Mr. President, the amendment I have just offered to the Defense authorization bill is an amendment that Senator Reed from Rhode Island is joining me in sponsoring.

The amendment itself would allow the Air Force to reduce its strategic airlift aircraft inventory to what they need to meet our readiness needs. It would save $1.2 billion of taxpayer money in the next few years, without compromising the readiness we need to protect our Nation.

Our Nation's strategic air fleet provides global air mobility to the U.S. military. As GEN Raymond Johns, commander of the Air Force Air Mobility Command, said in his statement in a hearing before the Armed Services Committee, where we had this amendment addressed:

The strategic airlift is a national asset allowing America to deliver hope, to fuel the fight, and to save lives anywhere in the world within hours of getting the call.

In order to meet this need, the United States uses C-5s and C-17s as their strategic airlift capability, and current Federal law sets the Air Force's minimum number of strategic aircraft at 316. However, the Air Force and the administration--when the Department of Defense submitted their budget request, they made very clear that we don't need to keep the minimum requirement at 316 to meet the needs of our country; that only a minimum requirement of 301 aircraft are needed to meet the strategic airlift capacity requirements of our country. The requirement to maintain the bottom-line limit of 316 is a situation where Congress is requiring the Air Force to maintain planes it does not need to protect the readiness of our country. So it was the Air Force that wanted this amendment to be brought forward to ensure we can save taxpayer dollars--over $1 billion.

This is very important at a time when we are asking our military, as a result of the Budget Control Act, over the next 10 years, to reduce spending by close to $450 billion. So they have to look at areas where we are spending money we don't need or where we are maintaining assets we do not need to meet our readiness.

That is why I brought this amendment forward. It is a commonsense amendment that I am so pleased Senator Reed has joined me on. I hope my colleagues will support it in this time of great fiscal challenges. But the need remains ever present to protect our national security against those who would want to harm Americans and our allies for what we believe in.

We have to allow the Air Force and our Armed Forces to make sensible decisions on where they need to put resources to protect our country. That is what this amendment does. I will say we had a full hearing in the subcommittee of the Armed Services Committee on the strategic airlift aircraft requirement. The military testified uniformly that reducing the number of the strategic airlift from 316 to 301 would put us in a very strong position to meet every contingency that we can anticipate going forward, including multiple contingencies around the world, as well as homeland events.

This area has been studied very carefully. It will allow us to continue to protect our country, but again, will save $1.2 billion in taxpayer money over the next few years.
I urge my colleagues to support this amendment.

BREAK IN TRANSCRIPT

Ms. AYOTTE. Yes, this is a very high priority of the Air Force, because in this difficult time when they are making reductions, this is an area where they can meet our national security needs. Yet Congress has actually asked the Air Force to maintain more planes than it needs. So this is a commonsense provision that is very important to our Air Force.

BREAK IN TRANSCRIPT

Ms. AYOTTE. Yes. Actually, this amendment I am bringing forward is consistent with the administration's budget request they submitted for the Congress's consideration. So this is a situation where, after a careful hearing we had before a subcommittee of the Armed Services Committee, and after the administration had submitted its request, and after the Air Force asked for this, it makes complete sense that we would allow them to reduce this strategic airlift capacity.

BREAK IN TRANSCRIPT

Ms. AYOTTE. This is not going to be a diminishment for States. This is just going to be a right-sizing of the fleet.

What I am concerned about is if we don't pass amendments such as this, where the administration has asked for it, where all of the data supports that we don't need to keep the level at 316, and where we can save $1.2 billion by doing it, how can we then ask our military to make significant reductions if we don't allow them to take such commonsense action such as this?

BREAK IN TRANSCRIPT

Ms. AYOTTE. Madam President, I rise in opposition to the amendment offered by the Senator from Colorado to strike the detainee provisions from the defense authorization markup--provisions that were agreed upon on an overwhelming bipartisan basis in the Armed Services Committee.

I would like to start first by revisiting the history of this and where we are because the reason the Armed Services Committee, in the first place, thought it was very important we discuss this issue in committee and address it is that having participated in hearings over the course of months and months in the Armed Services Committee, there has been witness after witness from our Defense Department who has come in and our military leaders with whom we have been talking about the detention policy and asking them very important questions about where we are and how we are going to ensure that our military and intelligence community has the tools they need to protect America, and also asking them about this issue of detainees and how we are treating them.

Because one of the important facts my esteemed colleague from Georgia, as well as the ranking member, Senator McCain, mentioned, is that we have a recidivism rate of 27 percent from Guantanamo--those who have reengaged our soldiers again and are back in theater. I was very concerned about this in the Armed Services Committee. That caused, over a series of months, us to ask about the administration's detainee policy.

I just want to share some of the comments that were made over that period of time in February. Secretary Michael Vickers said the administration is in the final stages of revising or establishing its detention policy.

Now, that was 8 months ago, and we are now 10 years into this war. In April I questioned GEN Carter Ham, the Commander of Africa Command, about what we would do if we captured a member of al-Qaida in Africa. Do you know what he told me. He said, ``We would need some lawyerly help on answering that one.''

So this is an area that cried out for clarification on a bipartisan basis because it is so important to ensure that while we remain at war with terrorists that we have the right policies in place to protect Americans. That is why the Armed Services Committee worked very hard.

I thank the chairman of the committee, Chairman Levin, for his diligent work, along with other members of the committee for coming forward with this provision--that the Senator from Colorado is seeking to strike--as well as the ranking member, Senator McCain.

What ended up happening is, we brought forward a compromise that passed overwhelmingly out of committee originally in June. In fact, it passed out 25 to 1, and then the administration raised some concerns about it. In reaction to those concerns, I know the chairman of the Armed Services Committee, as well as the ranking member and some others of us, including myself, sat down with members of the administration to hear out their concerns and to try to accommodate their concerns while still making sure we had a policy that would give proper guidance, would protect Americans, and would fundamentally deal with this issue of making sure, in the first instance, that we reaffirmed our authority that we are at war with al-Qaida post 9/11; second, reaffirming that when we are at war the presumption is military custody because the priority has to be gathering intelligence to protect our country; and then, third, those who are released from Guantanamo, making sure there is a standard in place so they cannot reengage back into the battle to harm our troops, our partners, and our allies.

In that process, that is how this provision was derived that Senator Udall from Colorado seeks to strike with his amendment. If we were to eliminate these provisions, we would be putting our country in a position where these important issues are not being addressed, and they need to be addressed just based on what we have heard from our military leadership over many months in the Armed Services Committee.

So I would also echo what Senator Chambliss, who is the vice chairman of the Intelligence Committee, said. This is an issue that has been thoroughly discussed in this body and cries out for passage in the Defense Authorization Act. I want to point out a couple of very important parts to this. Now, I am someone who, on the recent appropriations bill, the CJS appropriations bill, brought an amendment that would have provided for military commissions trials for members of al-Qaida and associated forces who have committed an attack against us or our coalition partners because I am deeply concerned that this administration has been treating these types of cases as common criminal cases.

When I brought that amendment forward, it did not pass this body. I feel very strongly that the policy should be that we treat these cases for what they are, military cases, because we remain at war and our priorities should be to gather intelligence. But I point out the fact that after my amendment lost, I sat down with the chairman of the Armed Services Committee, the ranking member, and the administration to hear out their concerns.

So while this amendment--I would have gone further in my amendment--addresses many of the objections that were raised--in fact, I think all of the objections which were raised to the amendment I brought to the floor from the other side; that is, we have given the administration flexibility to make the decision on whether they believe it is appropriate, based on national security concerns, which has to be the primary concern and consideration of how to treat those who have committed an attack on our country who are members of al-Qaida or associated forces, and also who are not members of this country, so who are foreign citizens and are seeking to attack our country or have attacked our country in a way that the administration can decide it is best to handle them in a civilian court or a military system.

So all of the objections that were raised to my amendment--I stand by my amendment--but they are addressed in this compromise. And to hear the objection to it, that there is not flexibility, it is very clear that is just not true when you look at the language in this amendment because we adjusted the amendment to address the administration's concerns to say no interrogation will be interrupted based upon this amendment; that interrogations have to be the priority, and we are giving the administration maximum flexibility under this amendment.

So I do not understand why there are such objections continuing when this is as a result of a very good, strong good-faith effort to address any operational concerns that were raised based on the amendment I brought and even based on the prior language which, in my view, I think was very sufficient.

I want to point out something that is very important. In the course of the discussions we had with the administration on section 1031, which we have heard cited as a section that could be used to detain Americans indefinitely, this section was changed based on feedback from the administration. In fact, the administration asked us to actually strike a provision in it that would have said American citizens--it did not apply to American citizens, and, in fact, had to comply with the Constitution of the United States.

So I am a little bit apoplectic to understand why the administration is raising an objection about something they actually asked to be removed on a section they told us they were satisfied with and based on revisions that we made that they wanted. We said we would be happy to make these accommodations because we wanted to make sure we got this right.

So on that section, I do not understand why we are in a position where the Senator from Colorado is trying to remove it--the administration is objecting to it--when we took the language they gave us and incorporated it directly into the National Defense Authorization Act.

One point I think is being lost: So why is it that this amendment creates an initial presumption for military custody? This is the most important point. The priority has to be in protecting American citizens by gaining available intelligence to protect our country. The esteemed Senator from Illinois cited the case of the so-called Christmas Day or Underwear Bomber as an example of how cases have worked well.

Well, I think it is important to appreciate the facts of that case. This is a situation where the underwear bomber is caught with the explosives strapped to him, where there are hundreds of witnesses on the plane, and they were able to make their case in the absence of any interrogation or confession. What ended up happening is he was questioned at the scene for about 50 minutes? Then he was read his Miranda rights, one of those being: You have the right to remain silent.

Let's think about that for a second. We would want to tell terrorists: You have you have the right to remain silent. Common sense will tell you telling a terrorist they have the right to remain silent is counter to what we need to do to protect Americans. We do not want them to remain silent, we want them to tell us everything they know. But continuing on with that case, the only reason he reengaged in providing information for our country is because his parents intervened. Weeks later, his parents convinced him he should cooperate with us; that he should provide information and tell us what he knew.

If our interrogation policy for people who commit attacks on our country is going to be, well, we hope a parent comes and intervenes to help us get information that will protect Americans, I think we are in trouble if that is our intelligence-gathering procedure.

So I wanted to point out, since that case is cited as an example by the Senator from Colorado and the Senator from Illinois as to why this section should be struck, if anything, I think that case points out why we need guidance in this area and why it is very important the priority be on gathering intelligence.

That is what this amendment does. It gives the administration sufficient flexibility, based on concerns they raised, operational concerns. If the FBI is conducting an interrogation, they do not have to stop it because of anything in this provision. That is very clear.

If the administration wants to treat someone in a civilian court, even though I do not think they should versus a military commission who is a member of al-Qaida who has attacked our country, that waiver is in here. That flexibility is in here.

This was a reasonable compromise where people like me who would have gone a lot further did not get what we wanted. But what we did do is get a very strong bipartisan compromise that came out of this committee overwhelmingly. When we had a vote at the beginning of the week, and the Senator from Colorado raised the very same amendment to strike this provision, it was rejected overwhelmingly on a bipartisan basis.

So I hope this Chamber will also overwhelmingly reject striking this very important provision from the National Defense Authorization Act.

Again, we cannot be in a position where we spend the next year in the Armed Services Committee again hearing from our military leaders: The administration is still in the final stages of revising or establishing its detention policy. I certainly do not want to hear again from one of our generals, when I ask him about our detention policy and what we are going to do with terrorists: I would need some lawyerly help in answering that one.

This amendment gives us the guidance we need. I would ask my colleagues to reject striking it from the authorization.

I yield the floor.

BREAK IN TRANSCRIPT

Ms. AYOTTE. In response to the Senator from South Carolina, I would say, unfortunately, our country is the goal for al-Qaida, and we saw that with September 11 and the horrible attacks on our country that day that killed Americans.
They want to come here and harm us and hit us where it hurts us the most. So, unfortunately, America is part of the battlefield. To put ourselves in a position where we would not allow our military intelligence, law enforcement, to have the tools they need to gather the most intelligence to protect Americans on our soil would lead to an absurd result.

BREAK IN TRANSCRIPT

Ms. AYOTTE. I would say to my colleague from South Carolina, when he spoke on the floor he captured the most important part of this; that is, without the amendment we have been debating, we do not even give our military, law enforcement, intelligence officials the ability to decide which system is best in each incident. Rightly so, when you are in our country, when you are an American citizen, you are given your Miranda rights. You are told: You have the right to remain silent. You have the right to have a lawyer. We need to make sure we do not create a distinction where if you are captured abroad, you are treated one way--and we are giving our officials maximum flexibility to gather as much information as possible to protect our country--but if you make it here, the rules are different, and we do not give the officials who are set to protect us every day, both from a military and law enforcement end, the flexibility they need to gather maximum intelligence.

It would just be an absurd result to treat it differently. It would almost encourage: Come to America--unfortunately--to attack us because you will actually be given greater rights if the attack occurs here.

BREAK IN TRANSCRIPT

Ms. AYOTTE. I would agree with the Senator from South Carolina that unfortunately there are threats we face within our own country from homegrown radicalism. But also let's not forget, this amendment, in terms of the military custody, applies to members of al-Qaida or associated forces who have planned an attack against our country or our coalition partners and are not U.S. citizens. So in this provision we are talking about foreigners coming to our country who are members of al-Qaida and who want to harm Americans, if we think about what happened on September 11.

I would also add, I think it is very important what is in this important provision of the Defense Authorization Act, in response to the Senator from California, who raised the case of Zazi as an example where she thought that case would be impacted by this amendment, that is simply, with all respect to the Senator from California, not the case.

Because if one looks at the language in our amendment, we have given flexibility to the executive branch to conduct the interrogations, to have surveillance. So in the Zazi case, there was surveillance undertaken. We put express language in here allowing the executive branch to allow law enforcement to conduct surveillance, to conduct interrogation.

I would point out that provision in terms of the amount of flexibility we have actually given the executive branch. But most importantly, we have dealt with the issue the Senator talked about, which is, in the absence of this provision, when terrorists come to our country and attack us, we are in a position where, under our law enforcement system, they have to give Miranda rights. They have the right to presentment. We are simply saying they have the option to make sure they can put intelligence gathering as the top priority.

So this, as the Senator has identified and talked about, is a very reasonable compromise. As the Senator knows, my colleague from South Carolina, I would have actually liked to have seen this go further. But it is very important that we bring this forward.

BREAK IN TRANSCRIPT

Ms. AYOTTE. That is right. That is the law of the land. That is what is reflected in this provision in the Defense Authorization Act. It is reflective of case law issued by our U.S. Supreme Court, which in not only that

case but in subsequent cases basically said, in those instances, you do have to provide habeas-type relief.

BREAK IN TRANSCRIPT

Ms. AYOTTE. I would agree with that. The Senator has already pointed out how important it is to have these provisions in place to give the officials who do this work every day whom we have so much respect for the ability to gather intelligence.

We need this provision to protect our country from attacks on our homeland. It is so important. I would ask one question of the Senator from South Carolina. He is familiar with the military commissions.

BREAK IN TRANSCRIPT

Ms. AYOTTE. I will ask the Senator quickly. The Senator from Illinois said we have only had six civilian trials with terrorists.

BREAK IN TRANSCRIPT

Ms. AYOTTE. Six military commission trials and hundreds of civilian trials of terrorists. I would ask the Senator, did the administration suspend military commission trials for a period of time?

BREAK IN TRANSCRIPT

Source