John Warner

Mr. WARNER

Mr. WARNER. I say to my colleague, I think we can accommodate him because this important debate brought by the Senator from Minnesota, to which I have made a reply, will be laid aside because other Senators, hopefully, on both sides of the aisle, will come to support the amendment in the second degree by the Senator from Virginia. I am anxious to hear from the Senator from Minnesota. Did he want to reply to some of my comments?

Mr. WARNER. I start off with the Ambassador of the Netherlands: Dear Senator, Mindful of the long-standing strong relationship between the United States and the Netherlands, I would like to express support for several very important amendments to the Defense Authorization Bill 2005 that were agreed this week . . . And he then refers to those sections. Then we have the ambassador from the Embassy of Sweden: As you are aware, Sweden is a significant supplier and partner to the United States in several defense technology areas such as anti-tank weapons systems and naval composite technology. With almost 50 percent U.S. content, the Swedish fighter aircraft Gripen is another example of close Swedish- American cooperation. This extensive cooperation is to the benefit of our respective defence industries. I am only reading just a fraction of these letters. Another one from Mr. David Manning, the Ambassador from the British Embassy in Washington: I am writing to express the strong support of the United Kingdom for three amendments to the Senate Armed Services Committee mark up of the 2005 Defense Authorization Bill. Those are the provisions, Mr. President, that my distinguished colleague seeks to strike. He goes on, ``These amendments are contained in section,'' so and so. He then goes on: As you know, the UK and US armed services have a relationship of unparalleled closeness, as our forces fight side by side in Iraq and elsewhere. . . . I therefore hope you will be able to support these amendments . . . And eventually get them into law. The Canadian Embassy sent a similar letter. We have a similar letter from the Danish Ambassador. We also have a letter from the Aerospace Industries Association of America. They state: The future of U.S. aerospace is in the global marketplace. Our industry exports 40 percent of the products it manufactures in the United States and books the largest export surplus of any sector of our economy. I say to the Senator from Minnesota, he is facing a serious issue if he prevails. We have a similar statement from the Government Electronic Industries Alliance. We have the National Defense Industrial Association, Strength Through Industry & Technology: Dear Mr. Chairman: NDIA has had a long and productive association with you and the committee. I look forward to discussing these issues . . . They support the bill, and I could go on, but this is a sample. I will say in recognition of the issues that the Senator raises, in the second-degree amendment we pair down the list of 21 nations to the 7 that we believe absolutely have to be kept intact and not subjected to the strike that the Senator has in hand. The obvious ones are the United States, Australia, the Netherlands, Italy, Sweden, Canada, and Norway. So I think some advancement has been made in terms of limiting the number of nations that have to deal with this, but at this point in time I say to my colleagues that I think the second-degree amendment from the Senator from Virginia embraces the position that is the most important one that we should take versus the distinguished colleague from Minnesota. I wonder if I might put in a quorum call for a brief few minutes when I have to absent myself from the floor. Does the Senator from Iowa wish to speak to this issue?

Mr. WARNER. Mr. President, I am not going to tread beyond the Department of Defense. Our bill goes strictly to the Department of Defense. If there are other areas in which my distinguished colleague and those who are aligned with him want to go, then other Senators who have the oversight responsibilities for their respective departments are the ones who will have to respond. So I am going to stick to DOD. We have the largest, as far as I know--maybe in agriculture there may be some segments which are somewhat equally or larger in significance. At the end of my remarks, I ask unanimous consent to have printed in the Record the letters that we have received from a number of nations respecting the pending matter that the distinguished colleague from Minnesota has put before the Senate.

Mr. WARNER. Yes.

Mr. WARNER. The Senator is doing his best, and I have lived with these things for so many years. The other is interesting. No. 1, we do not waive the Small Business Act, 15 U.S.C. 631, which sets aside 23 percent of the dollar volume of all defense contracts must go to small business. The Javits-Wagner, No. 2, is all products manufactured by the blind and the handicapped. We do not touch that. No. 3, section 7309, shipbuilding, we do not touch that. And No. 4 is the Barry amendment, and that covers textile, food, and speciality medicine. I draw my colleague's attention to those points. He might wish to review it himself and make amendments to his opening statement. Mr. President, I say to my colleague again, it is fascinating in a sense. He goes on about what we put into this bill, which I think in a very modest way strengthens America's position, in my judgment. For example, his bill goes after one Department, the Department of Defense; am I not correct? I say to my distinguished colleague, the Department of Defense is among the few Departments of our Government with contracts generating a surplus. The area in which the Senator from Minnesota wants to go to preserve jobs is in other Departments and agencies of the Federal Government. Let me point this out. We had $63 billion in defense sales in the last year--$63 billion--to nations all over the world. We bought only $5 billion of weapons from other nations. Those nations that sell us the $5 billion are basically the ones that are participating largely in the $63 billion. So there is a mutual trade there. We are selling them, by and large, far more than we are buying from them, and if you were successful, you would begin to bring down significantly the $63 billion, and that translates into hundreds of thousands of jobs in America would be lost because we are saying to those countries: We are not buying anything from you anymore. And they will say: If that is the case, we have had it, we are not going to buy from you, and down goes our $63 billion surplus.

Mr. WARNER. I wonder if I might bring to the Senator's attention--the bill is at the desk--if he would look at page 175 of the bill. He will see section (f), ``Laws Not Waivable'': The Secretary of Defense may not exercise the authority under subsection (a) to waive any domestic source or content requirement contained in the following laws. . . . No. 4 is the Barry amendment. We do not touch it. I assure the Senator, section 2533 A(a) of title X is the Barry amendment, and that remains untouched.

Mr. WARNER. Mr. President, before I get into the substantive debate in rebuttal to my distinguished colleague--and I say distinguished. We are very proud of his participation on our committee. Indeed, I remember vividly our trip together to Iraq. That was his first trip. It was helpful for all of us. I thank him for his remarks about the old Senator from Virginia. It is kind of nice to hear those after being on this bill now our 15th day. But we are making progress. First, I think inadvertently--and I say to my friend inadvertently-- he made reference in his opening statement that the language of the authorization bill for this year changes the status of the Barry amendment. Did the Senator make mention of that?

Mr. WARNER. I thank my colleague for his courtesy. We now undertake a very important debate on this subject.

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

Mr. WARNER. Mr. President, I send to the desk, on behalf of Senator McCain, an amendment in the second degree.

Mr. WARNER. Mr. President, will the Senator yield for the purpose of allowing me to put a second-degree amendment at the desk so our colleagues can then begin to examine both as this very important debate is underway?

Mr. WARNER. Yes. Mr. President, I think all that can be accommodated, so I join in the request at this time to lay aside the pending amendment in the second degree and the underlying amendment by our distinguished colleague from New Mexico and to then let the other Senators seeking recognition have the floor.

Mr. WARNER. Mr. President, it is interesting, over the weekend I had the opportunity, I say to my distinguished colleague, to visit the Department of Defense, and I was greatly impressed with an individual, who was a Member of the U.S. House of Representatives a decade or so ago, who is in charge of it. I will seek to have him come over right away and provide both sides with the expert to propound these questions. They are good questions. Let's see what we can do to work this thing out.

Mr. WARNER. Mr. President, in other words, rather than the individual's name, that his number is No. 224--whatever it is? I would have to defer until I go to the heart of the experts. All I know is that the name--if we are detaining certain individuals and the enemy does not know whom we have captured, and they, therefore, have to shelve some of their plans, knowing that the persons who are missing from their roster, if they were to talk about the plans, they would make the plans less valuable to the enemy--I mean, I am just working through the obvious scenarios here. Now, whether a number would suffice, I would like to go back to those who are dealing with this on a daily basis.

Mr. WARNER. No.

Mr. WARNER. Here is where I respectfully differ. If the information we give to the Red Cross were to leak out, then other nations that are similarly following that practice will see this is now in the public domain and say: We are stopping, Red Cross, because we see it has gotten into the public domain of another country. Therefore, we don't want that to happen.

Mr. WARNER. Mr. President, I do not disagree in how you frame the issue, but I maintain my stance. Let me parse it very carefully. I say to the Senator, you are saying that what we give the Red Cross--not what the Red Cross comes back and tells us we are doing right or wrong--what we give to the Red Cross can be shared with Congress?

Mr. WARNER. Fine.

Mr. WARNER. Mr. President, that is a very good question. I will take a few minutes to answer. It deserves a very considered answer. I have thought this through. It is interesting, coincidentally over the weekend I dealt with the Department of Defense. I did not have a chance to brief my distinguished ranking member yet on the question of the Red Cross's participation in our situations, both in the Afghanistan detention facilities and the Iraqi detention facilities. I am speaking for myself. I am very concerned about those problems over there. Our committee had several hearings on it. The issue comes up, as it should. It came up in the Judiciary Committee the other day, about the role of the Red Cross. I have learned a great deal about that role in a short period of time. I had some familiarity when I was Secretary of the Navy and during the Vietnam conflict. The Secretary of Defense was at that time--I have served under three of them--Secretaries Melvin Laird and Jim Schlesinger. They were very conscientious about working with the Red Cross. The Red Cross has done a remarkable job in this very difficult area, going into these prisons, monitoring them, and going back to the government host of the prisons and making corrections and trying, in some instances, to benefit the incarceration detainees in terms of their individual personal status. The success of that program has been dependent on the absolute sanctity of that material and the fact that the observations of the Red Cross have not gotten into the public domain. We are working with the Department of Defense now, such that the Senate can be given the benefit of the Red Cross inspections in our facilities in Afghanistan and in Iraq. It will be my recommendation to the committee that we will have it in a classified briefing. But we are not, hopefully, going to retain any of those documents in the Senate. Were that material to get out in some manner, we are told by the Red Cross, it would seriously limit their ability to do this magnificent work they do all over the world. If some nations--and only in a classified forum can I give those names--but some nations that now allow the Red Cross in to get information and to hopefully provide corrections to prisoners' treatment, if that had gotten out, that is the last time the Red Cross would get into that country to examine those prisons. So we come down to the very basic fundamental issue about those detainees, whether they are in the United States or wherever they are in the world in these prisons, the Red Cross is helping in many instances. But they say if the information they write up and send back to the host country of the prisons gets into the public domain, forget it; they will be precluded from going on. So we would face a similar situation. It is very difficult for me, one who has been privileged to be in this body now my 26th year, to just say I am concerned that some material in classified form in the possession of the Senate could get out. But, regrettably, whether it got out from under the Senate or got out from another source and that source would then blame the Congress for leaking it--I don't know, we have all been through the leak scenario--it leads to a never-never land in this Government of ours. But I urge that we consider this very detailed information which our colleague is seeking. The amendment in the second degree, which I am perfectly willing to withdraw to the extent we can come to a resolution and make it your first-degree amendment and no second--I believe we have to observe the practices with regard to this detailed information you are seeking.

Mr. WARNER. I yield.

Mr. WARNER. Mr. President, let me first say I think our colleague has brought to the attention of the Senate through his amendment a very important subject. It is my hope and expectation that we can eventually have a meeting of the minds. I don't take great joy in putting a second-degree amendment up on important subjects such as this, but I felt it imperative so we can frame for our membership what I perceive as a very conscientious presentation by the Senator of a set of goals in which I concur with two-thirds of the Senator's objectives. But where I ask there be a reservation, those reservations are of such severity that I am compelled to put in the second-degree amendment. I would like to walk through the amendment which the distinguished Senator put forth page by page. The first section says: Reports on matters relating to detainment of prisoners by the Department of Defense. Ordinarily, a report is something we are happy to grant a colleague. But in this instance, I will point out where my concerns are. First: Reports required. Not later than 90 days after date of enactment of this Act, and every six months thereafter, the Secretary of Defense shall submit to the appropriate committees of the Congress a report on the population of detainees held by the Department of Defense and on the facilities in which detainees are held. That is, have been held more than 30 days. My understanding was originally it didn't have that, and 30 days to me is reasonable. The Senator also added that the report can be submitted now in classified form. Again, that is a very essential improvement. But we then continue: (b) Report Elements. Each report under subsection (a) shall include the following: (1) General information on the foreign national detainees in the custody of the Department during the six-month period ending on the date of such report, including the following: (A) The total number of detainees in the custody of the Department . . . I think that is an important fact, and I simply say ``as of the date of such report.'' I think that should be something which would be acceptable to the Senator. Section (B) we leave standing. The countries in which such detainees were detained, and the number of detainees detained in each country. That is acceptable. Section (C) we take out simply because we modified (A) to state as of date of such report, and I think (C) is cared for by modifying (A) with date of such report. Then we drop down: The total number of detainees released from the custody of the Department during such period. We accept that fully. (D) The nationality of the detainees covered by subparagraph (A), including the number of detainees of each such nationality. That, too, seems to us to be fine. Then section (F)--no objection there. That says, ``The number of detainees covered by subparagraph (A) that were transferred from jurisdiction of another country,'' so you can track them. The Senator modified the original amendment. I am working from the original to show to date how much we have had meeting of the minds. The Senator took out section (G). I will not trouble to talk about it. We take out subsection (2). That is subsection (2) of the first paragraph of the amendment, report elements under (b). As drafted, we delete for each foreign national detained by the Department of Defense during the 6-month period ending on the date of such report: No. 1, the name of the individual; No. 2, his or her nationality; the place at which they were taken into custody; the circumstances of being taken into custody; the place of detention; the current length of detention, or at least the duration of detention at the time of release. And on it goes. Here is the problem. That bit of information, even though it were classified, were it ever to leak out--and regrettably, we know things of this nature will happen from time to time--it would be devastating because the enemy would know a great deal about custody and what we are trying to do with those individuals. It seems to me there is far greater benefit to an enemy in such engagements as we must take prisoners than it would be of benefit to the legislative body to monitor that prisoners are properly being cared for. For example, the Durbin amendment we had the other day goes to potential abuses. That has been accepted. It is a major step forward to codify prohibitions against abuse of prisoners. We are all troubled by that. To have in the custody of the Congress this type of information, even though it is locked up in S-407, or wherever it may be, potentially there is a document that could do great harm to our ability to conduct military operations during which we obtained detainees. Then there is the following paragraph: (3) Information of the detention facilities and practices of the Department for the six-month period ending the date of such report, including for each facility of the Department at which detainees were detained. . . . That is fine. (A) The name of such facility. (B) The location of such facility. We have no objection to that. In fact, the entire next page of the amendment, we accept. We come to the conclusion of the amendment and no further objections. It simply is to the creation of a document that would have such detailed information that is not essential to the Congress in our oversight of these detention facilities and the practice of detention, and if that document would ever get out, it would be a devastating blow to the intelligence system, to giving the information to the enemy, who we have among their presumably lost and missing persons, and the like. I urge my colleagues, this is something we should scrutinize carefully. I have framed it in such a way that colleagues will have to decide whether it is a second-degree amendment that prevails or the underlying amendment that prevails. Therein, with the exception of one other mention just this morning, the committee staff, the majority and the minority, were briefed on this document. It roughly looks to be 30 pages of unclassified material entitled ``Department of Defense proposed''--just being proposed at the moment--``administrative review of the detention of enemy combatants at Guantanamo Bay, Cuba.'' This is one of our facilities. The Secretary of Defense has established administrative review procedures to determine annually if enemy combatants detained by the Department of Defense at the U.S. Naval Base at Guantanamo Bay should be released, transferred, or continue to be detained, and so forth. Much of it parallels what the Senator has in mind. I am confident after this morning's briefing the Congress will make several edits. I encourage the distinguished ranking member to engage our colleague, Senator Bingaman, a former member of our committee, to look at it also and see how we can improve and strengthen this. So this will soon be in effect.

Mr. WARNER. Yes.

Mr. WARNER. Mr. President, we understand. A Senator asked for a few minutes of morning business and then I would be prepared to engage with Senator Bingaman on his amendment, if that is agreeable.

Mr. WARNER. Mr. President, I think the Senator's understanding coincides with that of myself and the distinguished Senator from Nevada. In due course, several parties who have an active interest in not only the parliamentary situation but the substance are soon to arrive in the Senate. We have to wait a bit.

Mr. WARNER. It would be a valuable use of the time if we were to do so. We encourage that.