Department of Defense, Military Construction and Veterans Affairs, and Full-Year Continuing Appropriations Act, 2013

Floor Speech

Ms. AYOTTE. Madam President, I rise today to address some comments that were made. I came to the floor earlier to talk about $380 million of funding for the MEADS Program, which is the missile to nowhere. I sought, and continue to seek, to offer an amendment to the continuing resolution and the appropriations bill before the Senate right now to strike that funding, and then to transfer the funding from this missile to nowhere to the operations and maintenance fund so that our troops can use the money for important needs they have, especially in light of sequestration.

My colleague from Illinois, Senator Durbin--for whom I certainly have great respect--came to the floor earlier to counter what I had to say. In fact, the Senator from Illinois said essentially that the U.S. taxpayers have truly invested in this program, and he suggested that if we were to cancel funding for this missile to nowhere, we would be incurring damages, or that our allies who have entered into this MEADS Program with us--under the agreements we have entered into, our allies--in particular the Germans and the Italians--would be able to seek damages from us, so, therefore, we would incur damage costs by terminating it.

I want to point out, first of all, not just in my view, this is wrong based on the plain language of the memorandum of understanding we have with our allies.

In fact, I go back to first-year contracts class in law school. When you have an agreement with someone, you start with the language of your agreement and the language of the contract. The language of the contract of the memorandum of understanding we have on the MEADS Program in 2005 with Germany and Italy says very clearly:
The responsibilities of the participants will be subject to the availability of funds appropriated for such purposes.

So a first-year contract student would know that if we do not appropriate funds for the missile to nowhere, then we will not have legal obligations to our allies. In fact, that is essentially what the Department of Defense said to us when they wrote in a report to Congress about this with regard to the 2013 funding.

Please understand the history of this. In 2012, in the Defense authorization, the defense committee said very clearly: This is it. We are not going to fund a program anymore that is not going to get us a result. We are not going to waste taxpayer dollars anymore. So understand, this is the end of our obligation.

As a result, the Department of Defense said clearly to the Senate Armed Services Committee:

[i]f Congress does not appropriate FY 2013 funding, the U.S. DOD [Department of Defense] would take the position that the FY 2012 funds represent the U.S. DOD's final financial contribution under the MOU. The U.S. DOD would also take the position that failure to provide FY 2013 funding would not be a unilateral withdrawal from the MOU .....

So contracts 101, very clearly, if we cut off the appropriations for the missile to nowhere and make sure that this fund goes to actually something our warfighters need and can use, we will not be subject to a claim by our allies because we expressly protected the taxpayers in the 2005 MOU that was entered into.

In addition, I will say that there is another portion of the agreement itself. Section 5 of the 2005 MOU states that our maximum commitment from the United States had to be $2.3 billion. Yet between 2004 and 2011, we have already spent $2.9 billion on a missile to nowhere that we are not going to get a result from. So not only do we have no responsibility because we clearly put in that if we did not appropriate for this, then we would not have further responsibilities under the MOU, but in addition to that, we have already paid $2.9 billion, and the MOU says our responsibility is only $2.3 billion.

So I come to the Senate today to say, with great respect to my colleague from Illinois, his claim that somehow terminating this contract is going to subject the United States to damages is wrong and is not supported by the plain language of the agreement, and we should not continue to fund a missile to nowhere.

I will end with this. If you look at the history of this MEADS Program, what has happened?

The House Armed Services Committee said in 2013--excuse me, the 2013 authorization: End funding for this program--zero. The Senate Armed Services Committee said: End funding for this program. It is a missile to nowhere. Zero. The House Defense Appropriations Subcommittee said: End funding for this; We are not going to appropriate for this. Zero.

The only committee that has appropriated for this is the Senate Subcommittee on Defense Appropriations, and if we stop that appropriation, we can end the missile to nowhere. That is what my amendment is about. That is why I hope we will have an amendment and a right to be heard on the continuing resolution. I wish to make sure money goes into the operations and maintenance fund so it can be used for our troop needs during a difficult time in addressing sequestration.

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