National Defense Authorization Act for Fiscal Year 2013 - Conference Report

Floor Speech

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Mr. DURBIN. Mr. President, I appreciate the hard work of the chairman, Senator Levin, and the ranking member, Senator McCain, on the fiscal year 2013 National Defense Authorization Act conference agreement this whole year.

They have crafted reasonable, responsible compromises in many areas of defense policy. I appreciate that the conferees were able to begin rebalancing our force even as we continue to wind down our presence in Afghanistan.

The men and women in uniform, as well as their families, appreciate that even in this tough fiscal environment the bill would authorize a 1.7 percent across-the-board pay raise.

I also want to acknowledge that Conferees retained my amendment implementing visa bans and asset freezes against those supporting the M23 rebels in Congo.

But there are also several deeply troubling provisions that I must point out. The first issue goes to fundamental questions about basic constitutional protections. Last year I voted against the Defense Authorization bill because the bill included several troubling provisions relating to the treatment and custody of detainees. These provisions make it harder for the government to fight terrorism and are inconsistent with America's commitment to our Constitution and fundamental human rights.

This legislation--for the first time in American history--requires the military to take custody of detainees in the United States.

FBI Director Robert Mueller strongly objected to this military custody requirement. In a letter to the Senate last year, Director Mueller said the bill would, quote, ``inhibit our ability to convince covered arrestees to cooperate immediately, and provide critical intelligence.''

Director Mueller concluded that this provision ``introduces a substantial element of uncertainty as to what procedures are to be followed in the course of a terrorism investigation in the United States.''

Last year's bill also included a provision that could be interpreted to authorize the indefinite detention--without charge or trial--of American citizens in the United States.

And the bill included restrictions that would make it virtually impossible to close the Guantanamo Bay detention center, which our most senior defense and intelligence officials have told us is a recruitment tool for Al Qaeda.

I was hopeful that this year the Defense Authorization bill would undo some of the damage done by last year's bill. Unfortunately, that is not the case.

I am troubled that the conference report does not include the Feinstein-Paul amendment, which passed the Senate by a strong bipartisan vote of 67-29.

This amendment would have prohibited the indefinite detention of American citizens and lawful permanent residents apprehended in the U.S. unless this detention is expressly authorized by Congress.

This amendment would have made it clear that last year's Defense Authorization bill--as well as the authorization to use military force that Congress passed after the 9/11 terrorist attacks--did not authorize indefinite detention of Americans in the United States.

This is a commonsense amendment that is consistent with our Constitution and fundamental human rights. Indeed, the Fifth Amendment of the Constitution provides simply that ``no person shall be deprived of life, liberty, or property without due process of law.''

But the conference report struck the Feinstein-Paul amendment. Instead, the conference report includes a provision stating that the use of force authorization and last year's Defense Authorization bill should not be construed to deny the right to challenge their detention in court--the legal term is habeas corpus--to individuals detained in the U.S. who would otherwise have this right.

This provision is essentially meaningless. The Supreme Court has already held that anyone in the custody of our government has the right to habeas corpus.

This provision would not prohibit long-term detention of American citizens without trial. Without the Feinstein-Paul amendment, it remains unclear whether indefinite detention is permitted.

I also continue to oppose provisions in the conference report that limit the administration's ability to close the Guantanamo Bay detention facility.

Like last year's Defense Authorization bill, this legislation provides that no detainee held at Guantanamo Bay can be transferred to the United States, even for the purpose of holding him for the rest of his life in a federal super-maximum security facility.

And like last year's bill, this legislation provides that the government may not construct or modify any facility in the United States for the purpose of holding a Guantanamo Bay detainee.

The Obama administration has threatened to veto the conference report because of these provisions. Here is what the administration says: ``Since these restrictions have been on the books, they have limited the Executive's ability to manage military operations in an ongoing armed conflict, harmed the country's diplomatic relations with allies and counterterrorism partners, and provided no benefit whatsoever to our national security.''

I agree. I continue to believe that closing Guantanamo is an important national security priority for our Nation.

And I am joined by many national security and military leaders, who say that closing Guantanamo will make us safer. Among them: General Colin Powell, the former Chairman of the Joint Chiefs of Staff and Secretary of State; Former Republican Secretaries of State James Baker, Henry Kissinger, and Condoleezza Rice; Former Defense Secretary Robert Gates; Admiral Mike Mullen, former Chairman of the Joint Chiefs of Staff; and dozens of other retired admirals and generals.

Retired Admiral Don Guter was the Navy Judge Advocate General at the Pentagon on 9/11. Listen to what he said just a few weeks ago: ``I want justice. But Guantanamo has not provided that justice and has not made us safer. . . . Guantanamo remains a recruiting tool for terrorists and will remain so until that prison is shuttered.''

I also received a letter from dozens of human rights and religious organizations pointing out that many people around the world view Guantanamo as a symbol of America's retreat from our traditional role as a human-rights champion.

These detainee provisions are not just bad human rights and national security policy. They are completely unnecessary. Look at the track record. Since 9/11, our counterterrorism professionals have prevented another terrorist attack in the United States.

And more than 400 terrorists have successfully been prosecuted and convicted in federal court and are now being safely held in federal prisons. A few of the terrorists who have been convicted in federal court and are serving long prison sentences: Umar Faruk Abulmutallab, the Underwear Bomber; Ramzi Yousef, the mastermind of the 1993 WTC bombing; Omar Abdel Rahman, the so-called Blind Sheikh; 20th 9/11 hijacker Zacarias Moussaoui; and Richard Reid, the Shoe Bomber.

Unfortunately, the provisions in this conference report limit the flexibility of the administration to respond to terrorism in the most effective way. And they do so in a way that calls into question our commitment to our Constitution and human rights.

I am also concerned with the message this conference report sends to the millions of Americans who feel strongly that our gun laws need to be reformed after the mass murder in Newtown, CT.

Over the last few years, Congress has considered and passed a steady stream of legislation that has weakened the gun laws on the books.

For example, Congress passed a law to end the Reagan-era ban on loaded guns in National Parks; passed a law to require Amtrak to allow guns to be transported on their trains even though Amtrak determined after 9/11 that this was too risky; and passed a number of appropriations riders that made it harder for law enforcement agencies to enforce gun laws. I opposed these efforts, but they became law.

Things need to be different now. The growing toll of daily shootings in communities across the nation and the murder of twenty children at Sandy Hook Elementary School have caused Americans to say enough with the constant efforts to roll back gun laws.

It's time for a new conversation on how to best protect America's children from gun violence. That conversation is now underway with the Vice President's task force.

Unfortunately, this conference report contains a provision that yet again weakens gun laws currently on the books. It grants Federal concealed carry privileges to thousands of individuals even though the laws of my State and other States may not permit these individuals to carry concealed weapons.

While this provision was added before the Newtown tragedy, and while there may be legitimate reasons behind it, I am troubled that this is the first gun-related legislation that Congress will pass after the Newtown shooting.

I would much prefer that Congress's first response to Newtown be a more balanced approach that reflects the recommendations of the Vice President's task force. Congress should not continue voting to weaken gun laws while the Vice President's task force is doing its work.

There is another issue in this conference agreement that is very troubling, and that concerns the Navy's energy requirements for the future. The Department of Defense is an enormous consumer of energy, especially fuel for the Navy's global fleet. Every time the price of a barrel of oil increases by $1, the Navy's total fuel costs increase by $31 million.

For our men and women in uniform, energy policy is about security and budgets. That's why Secretary of the Navy Ray Mabus is focused on shifting Navy's energy consumption to fifty percent renewable fuels by 2020.

But the Defense Department's goal is compromised with this conference report.

We voted here in the Senate, on an amendment I was proud to co-sponsor, to ensure that the military has all the tools it needs to invest in technologies that will reduce fuel costs and enhance strategic capabilities.

I was glad to see that the conference committee preserved the Navy's full ability to buy biofuels in the future. But then the conferees adopted provisions that undermine that goal.

One provision will effectively end a joint project between the Department of Defense, the Department of Energy, and the Department of Agriculture to build a refinery for biofuels.

It is unfortunate that this language was included in the conference report because this provision was not originally included in the House- or Senate-passed versions of the bill.

In fact, Senator Hagan sponsored an amendment, which I co-sponsored, that specifically removed a similar provision from the bill. Senator Hagan's amendment was adopted on the Senate floor by a vote of 54 to 41.

And as the House-passed defense bill also supported the joint project, it was surprising to see that the conference committee added a new provision to severely limit the biofuels partnership.

This new provision is in direct opposition to the bills supported by a majority of Members in both chambers and I am disappointed to see that the conference committee went against the wishes of the Senate and included it.

Finally, I must also mention the bill's impact on my home state of Illinois on a particular issue. I appreciate Chairman Levin and Ranking Member McCain working with the Illinois and Iowa delegation on a bipartisan basis to require an Army plan to sustain Rock Island Arsenal, and all the other aspects of our nation's organic industrial base. Prior Army planning had not included long-term workload plans to sustain the arsenals. I look forward to working with the Committee and the Army as this is implemented next year.

This development notwithstanding, I am concerned about a provision in the bill retained in conference that could require arbitrary cuts to the civilian workforce not supported by the Department's strategy. I co-sponsored Senator Cardin's amendment to repeal this provision, which unfortunately did not pass on the Senate floor. The House version contained no similar provision and conferees kept much of the original language. I will continue to work with the Defense Department and the Committee to ensure that the flexibility in this provision is used to ensure strategy-driven planning for the civilian workforce.

As I stated up front, the conference report makes a number of critical, responsible decisions that provide our men and women in uniform with the resources and policy authorities they need to provide for our common defense.

Nonetheless, its fundamental weaknesses in detainee policy and other areas mean that I am regretfully unable to support passage of the conference report.

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