Kelly Ayotte

Ms. AYOTTE

Ms. AYOTTE. Mr. President, first of all, I wish to thank Chairman Levin and Ranking Member McCain and remind everyone that this particular amendment addressing detainee provisions passed overwhelmingly on a bipartisan basis in the Armed Services Committee. The reason we addressed this issue was because we heard witness after witness in a series of months before the Armed Services Committee from our Department of Defense tell us--for example, when I asked the commander of Africa Command, saying he needs some lawyerly help on how to answer what to do with a member of al-Qaida who is captured in Africa. This is an area that cried out for clarification, and that is the genesis of this amendment, which is a very important amendment. Briefly, two issues. No. 1, the arguments that have been raised about section 1031, including the statement of authority, this is a red herring. This provision was drafted, as Senator Levin said very clearly, based upon what the administration wanted, and also codifies existing law on what the statement authority is in terms of the fact that we are at war with al-Qaida. If people want to disagree with that, that is certainly a policy discussion we can have. But we were attacked on our soil on 9/11, and this codifies the fact that we are at war with members of al-Qaida. Section 1032 is the military custody provision. Let's be clear on what it does and what it does not do. No. 1, it is very clear on who it applies to. It only applies to members of al-Qaida or an associated force who are planning or carrying out an attack or attempted attack against the United States or its coalition partners. It does not apply to American citizens. We are only saying that if a person is a member of al-Qaida and they want to attack the United States, we are going to hold them in military custody. Why? I prosecuted cases in the criminal system. We don't want to have to----

Ms. AYOTTE. We don't ever want to have to read a terrorist their right to remain silent. That is the issue here. Thank you, Mr. President. I yield the floor.

Ms. AYOTTE

Ms. AYOTTE. Mr. President, I ask unanimous consent to temporarily set aside the pending amendment and call up the following amendments en bloc: Senator McCain's amendment No. 1281 regarding the transfer of arms to Georgia; Senator Blunt's two amendments, Nos. 1133 and 1134; Senator Murkowski's two amendments, Nos. 1286 and 1287; and Senator Rubio's two amendments, Nos. 1290 and 1291.

Ms. AYOTTE. Mr. President, the amendments have been cleared on our side.

Ms. AYOTTE. I yield the floor.

Ms. AYOTTE. Mr. President, I thank the Senator from Georgia for his leadership on the Armed Services Committee and also for the important work he has been doing as the vice chair of the Intelligence Committee to make sure our country is protected. He is particularly knowledgeable on these issues of how we treat detainees, and we did have a detailed colloquy on the floor. His insight has been so important in making sure we have the right policies in place to protect America. I yield the floor.

Ms. AYOTTE. Mr. President, I would like to give my thanks to the Senator from Alabama for his comments about the concerns he has about our detainee policy and about how important it is that we have the right policies in place to protect Americans so that we can prioritize gathering intelligence. I also wanted to share in his concerns about what is happening with the supercommittee in terms of the impact on our national security. There is no question that there are areas where we can do much better and be more effective with taxpayer dollars on defense spending. But we cannot subjugate our national security for our failure around here to do our job and to have courage to take on the entire budget and bring ourselves on a path of fiscal responsibility. So I know the Senator from Alabama has been a great leader in this area, and I appreciate his comments in that regard. Amendment No. 1249 Mr. President, I also wanted to speak briefly on an amendment that has already been made pending that Senator McCain and I are cosponsoring together. Over the last year, as a new Member of the Senate and the Senate Armed Services Committee, one of the concerns I have had is the way we do contracting at the Department of Defense. My overall impression has been that a third year law student could negotiate much better terms for the United States than we have been negotiating for the country. In some of the negotiations with our defense contracts we end up on the hook when contractors don't perform or it takes longer than they indicate, and we seem to always bear the financial burden of that. When we look at the fiscal state of the country and where we are, we need to reform that process. That is what drew my interest to this issue. Senator McCain has long worked on this issue of reforming our acquisition process, and I have great respect for the work he has done there. So we have offered on this National Defense Authorization Act amendment No. 1249, which would prevent millions of dollars in wasteful contract cost overruns from the Department of Defense on major defense acquisition programs and help to ensure that our warfighters have the weapons and systems they need to protect our Nation but doing so within budget and on time frames that contractors commit to for our needs to make sure we have what we need to protect our country. According to the Government Accountability Office, in a March 2011 report entitled ``Defense Acquisitions: Assessments of Selected Weapons Programs,'' from fiscal year 2010 collectively, we ran more than $400 billion over budget and were an average of almost 2 years behind schedule for major defense acquisitions programs. Today, half of the Department of Defense major defense acquisition programs do not meet cost performance goals. Eighty percent of our major defense acquisition programs have an increase in unit costs from initial estimates that were given. While there can be many factors that explain the cost overruns, the cost-type contracts have been a significant contributing factor in why we have these overruns both for production and development of our major defense acquisition programs. We have to address these cost overruns, particularly at a time when we are asking our Department of Defense to reduce spending. We need to get the maximum bang for our buck and hold contractors accountable when they do not perform what we have contracted them for. We need to make sure the terms of our contracts are good for the United States and are fiscally responsible, and that is what this amendment would do. It would prohibit the use of cost-type contracts for the production of major defense acquisition contracts and limit the use of cost-type contracts for major defense acquisition development contracts. This represents the core investment in our Nation's military, and as these costs increase, and as the Department of Defense faces the looming prospect of major budget cuts over the next decade, we have to address this now for our troops and for our national security. We have to get this right. I am hoping for and I ask my colleagues to support this amendment we are bringing forward. Again, I would say on behalf of Senator McCain, who has done so much work in this area, reforming our acquisition process and getting this right is so important to what we are asking our military to do right now, which is to do more with less. I thank the Chair, and I yield the floor.

Ms. AYOTTE. I thank the chairman. He is very kind, and it has been wonderful to serve under his leadership on the Armed Services Committee, of which I would say, one of the great experiences in the Senate is that the Armed Services Committee--in a time when people see so much partisan--works on a very strong, bipartisan basis to ensure our country is protected. With that, I would yield to my colleague who also serves on the Armed Services Committee, whom I have great respect for, Senator Sessions from Alabama. Mr. SESSIONS addressed the Chair.

Ms. AYOTTE. Mr. President, I ask unanimous consent on behalf of other Republican Senators to temporarily set aside the pending amendment and call up the following amendments en bloc: amendment No. 1179 on behalf of Senator Graham; amendment No. 1230 on behalf of Senator McCain; amendment No. 1137 on behalf of Senator Heller related to the U.S. Embassy in Israel; also for Senator Heller, amendment No. 1138 related to the repatriation of U.S. military remains from Libya; for Senator McCain, amendment No. 1247 related to further restrictions on the use of defense funds on Guam; for Senator McCain, amendment No. 1246 related to a commission for U.S. military force structure in the Pacific; for Senator McCain, amendment No. 1229 related to a cybersecurity agreement between the Department of Defense and the Department of Homeland Security; for Senator McCain, amendment No. 1230, as modified, related to the annual adjustment in enrollment fees for TRICARE Prime; for Senator McCain, amendment No. 1249 related to cost-plus contracting--and this is also an amendment that I am cosponsoring; for Senator McCain, amendment No. 1071 related to the oversight of the evolved Expendable Launch Vehicle; for Senator McCain, amendment No. 1220 related to a GAO report of Alaskan Native Corporation contracting; for Senator McCain, amendment No. 1132 related to a Statement of Budgetary Resource Auditability; for Senator McCain, amendment No. 1248 related to authorizing ship repairs in the Northern Marianas; for Senator McCain, amendment No. 1250 related to a report on the probation of the F-35B program; for Senator McCain, amendment No. 1118 to modify the availability of surcharges collected by commissary stores. I have to make a clarification on an amendment I previously offered on behalf of Senator McCain: amendment No. 1230, as modified, Senator McCain's amendment on TRICARE. I ask unanimous consent from the chairman of the Armed Services Committee to allow the Senator from Alabama to speak.

Ms. AYOTTE. Mr. President, I would like to thank the chairman of the Armed Services Committee for such a thorough analysis of the detainee provisions represented in section 1031 through 1034 of the Defense authorization bill. This is a very important part of the Defense authorization bill, and I certainly appreciate the thoughtful analysis that the chairman did. I would say that his thoughtful and detailed analysis addressed all the red herrings that have been raised about these particular provisions. Because if you read carefully the language in the provisions that were addressed by the Armed Services Committee, they do provide the flexibility that the administration says they have sought in making the best decisions on how to treat detainees, particularly those who become members of al-Qaida and come to our country to commit an attack against our country. We have to make sure we have the right provisions in place to protect Americans and the flexibility so the executive branch officials are able to decide what is the best track to handle a particular case or member of al-Qaida who comes to our country to, unfortunately, attack us. I also wish to remind this body that these provisions of the Defense Authorization Act were passed out of the Senate Armed Services Committee on an overwhelming bipartisan basis. In fact, the entire Defense Authorization Act was voted out twice unanimously by the Armed Services Committee, including on Monday of this week, when we again voted out the entire provisions of this act unanimously. So the particular provisions the chairman just discussed were the result of extensive discussions not only within the committee but also based upon testimony we heard over months from military officials regarding concerns they had about the lack of clarity in our detention policy, and that is where we came to the provisions in 1031 through 1034. I wish to also remind this body there were many of us who would have gone much further in terms of how we would handle members of al-Qaida who come to our country to commit attacks against our citizens or those who would commit attacks against our citizens or soldiers overseas and our coalition partners. I brought forth an amendment on the CJS appropriations minibus that would have prohibited funding altogether for civilian trials of this same category for terrorists in the United States. So I would have liked to have gone much further. But I respect the amendment the committee voted out, which, in this instance, addressed the administration's concerns of allowing the administration a national security waiver to decide how to handle these cases whether they wanted to take a military track or a civilian track based on the national security interests of our country, which is, of course, what has to be foremost in these cases. I wish to again remind everyone of the problem we have, which is that the priority, when we are dealing with a member of al-Qaida who is seeking to attack our country, has to be intelligence gathering. We have to make sure we give our executive branch agencies the tools they need to be able to gather information to know about future attacks and to protect our country. What happens now in our civilian system is, if someone is arrested here, if they are in the civilian system, they are given rights that are part of our constitutional system, which is Miranda rights, for example. If they are in custody and there is interrogation, they have to be told they have the right to remain silent, that they have a right to a lawyer, and that they have a right to speedy presentment. These types of rights are incredibly important to our civilian system. When we have a terrorist who is a member of al-Qaida, who is a foreigner, and who comes to this country to attack our country, the first thing they hear should not be ``you have the right to remain silent.'' We have to allow our executive branch officials the ability to make intelligence gathering the first priority. This amendment allows that and gives the executive branch the ability to decide in which system they want to treat them and to be able to prioritize intelligence gathering so we can protect Americans and make sure if someone who is a member of al-Qaida comes to our country to attack us, we can gather information without immediately having to tell them ``you have the right to remain silent.'' That is what is so important with this amendment. It was a bipartisan compromise. As I said, there are Members of the Senate, including myself, who would have liked to have gone much further. But we addressed so many of the concerns of the administration they came up with to make sure they had, with these provisions, the ability to not have to interrupt an interrogation, to conduct the interrogation as they saw fit, to make sure they could conduct ongoing surveillance, and to decide whether a military or civilian track was best based on our national security interests. I will say just one thing with respect to the transfer provisions and the concerns that have been raised about the provisions set forth for transferring detainees from Guantanamo. This is an area that cried out for some clarification, and it is important that the standard the committee came up with is in statute. Actually, as the chairman mentioned, the reason the committee addressed this is because our defense officials raised some concerns about what the waiver provisions should be from Guantanamo. This has been an area of interest of mine because of where we are right now with the Guantanamo detainees. Unfortunately, the reality is that 27 percent of those who have been released from Guantanamo have gotten back into the fight and are back trying to kill us, our troops, and our coalition partners. This is an area where it was very important to have clear standards: where transfer would only be appropriate in the instances where we could ensure there wouldn't be recidivism so that we could protect our troops and our partners from having to see the very same individuals we had already had in custody at Guantanamo. So the provisions set forth here are very important to have that statutory standard for when transfers can be made and how they should be handled. In fact, I would add, when we think about some of the detainees who have gotten back into theater whom we had in our custody at Guantanamo, they are conducting suicide bombings, recruiting radicals, and training them to kill Americans and our allies. Some of the former Gitmo detainees--and I think unfortunately it is a little bit of a badge of honor now to get back into theater and to be engaged in fighting again. Said al-Shihri and Abdul Zakir represent two examples of former Guantanamo detainees who returned to the fight and assumed leadership positions in terrorist organizations that are dedicated to killing Americans and our allies. Said al-Shihri has worked his way up to be No. 2 in al-Qaida in the Arabian Peninsula. We had him in our custody and, unfortunately, he was released. Abdul Zakir now serves as a top Taliban military commander and a senior leader in the Taliban Quetta Shura again fighting us and our allies. Again, I am concerned that in the world of terrorists it has become a badge of honor to be released from Guantanamo and then to get back into the fight against us. So I just wanted to put in perspective what we heard from our senior defense officials over a period of months in the Armed Services Committee as to why it is important to have a standard that allows the Department of Defense, under limited circumstances and based on protecting our country, to transfer the detainees, but only when we have addressed the issue of recidivism and they are assured that these individuals aren't going to get back in theater and try to kill American soldiers or our allies. That is why this provision is in here, and I am very pleased it is in here to make sure we address this important issue to keep Americans protected and our allies protected. I will repeat again that this was a bipartisan compromise. This morning the chairman very thoroughly went through each of the issues raised in the Statement of Administration Policy. Also, in my view, he thoroughly knocked down many of the red herrings that were raised about this provision on the Senate floor yesterday by Senators who are seeking to strike this provision from the Defense Authorization Act. It is important that this body pass this Defense authorization. It is important for not only these provisions, but also so many of the provisions of this Defense authorization that give our troops the tools they need, as we tell them we are here to support them, to make sure we move forward with the Defense authorization, including these important provisions that address how we handle detainees. Again, I wish to thank the chairman of the Armed Services Committee for his leadership on this issue. I know he has worked very hard in meeting with the administration, meeting with those of us on the other side of the aisle who actually wanted to go much further in coming up with a very strong, important piece of legislation that will protect Americans and move us forward and provide some clarity in an area where we need clarity to make sure our executive branch officials have the tools they need to gather intelligence to protect Americans from the terrorist attacks because, unfortunately, those who are members of al- Qaida still seek to kill us for what we believe, not for anything we have done, and we can't forget that. So I thank the chairman. Amendments Nos. 1179, 1230, 1137, 1138, 1247, 1246, 1229, 1230 as Modified, 1249, 1071, 1220, 1132, 1248, 1250, and 1118 En Bloc

Ms. AYOTTE

Ms. AYOTTE. Mr. President, I ask unanimous consent that Dennis Deziel, a defense fellow in my office, be granted floor privileges during the consideration of S. 1867.

Ms. AYOTTE

Ms. AYOTTE. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

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.

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. Amendment No. 1065

Ms. AYOTTE. Mr. President, I ask unanimous consent to set aside the pending amendment and call up amendment No. 1065.

Ms. AYOTTE. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

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.

Ms. AYOTTE. I thank the chairman.

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?

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

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.

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.

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.

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.

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.