John Warner

Mr. WARNER

Mr. WARNER. Mr. President, I can't remember. It has been too long. That is one of a senior citizen's benefits. But I spent 5 years as an assistant U.S. attorney in the criminal and appellate divisions of the courts here in the Nation's Capital. I point out to the Senator, I recognize the high bar. I am just saying I think the Congress should deliberate very carefully a criminal penalty of up to 20 years for these thousands upon thousands of companies that are currently engaged. Carefully, first go through a series of hearings, and then floor debate, rather than come up here and in a matter of an hour or two of time try and make the decision to impose criminal law on an existing framework of contractor support at the very time we are engaged in combat operations in Iraq, Afghanistan, and, to a lesser extent, in other parts of the universe. The Senator is asking the Senate to take a very serious step. That is why the substitute amendment would incorporate, if adopted, a statute-- basically existing law--and extraterritorial ability to reach the company under existing law in title 18.

Mr. WARNER. I thank my colleague. Let me bring to his attention that we are quite fortunate as a nation to have literally several thousand contractors engaged in supporting the men and women of the Armed Forces of the United States in many areas of the world. And now we are about to take language which, as the Senator said, perhaps was a basis for a civil penalty and subject these thousands of contractors and individuals to the following language in your amendment: They ``shall be fined under paragraph (2), imprisoned not more than 20 years.'' I say to my good friend, we were taught in law school the difference between civil and criminal law. We were taught the tremendous burden of proof and so forth that is associated with depriving one of one's freedom and liberty. You are about to subject these contractors to that, up to 20 years, using only civil standards. I understand you have specific proof in there.

Mr. WARNER. Mr. President, I thank my colleague. I will not try and make reference to the consideration of language similar to this underlying amendment and what occurred in the appropriations cycle and what occurred or didn't occur in the conference. I was not there. I don't have the specific knowledge. I am pleased that the distinguished Senator from Vermont, when I did discuss with him privately some of the earlier statements, has now corrected them. And I accept at face value what you have said about what took place in the appropriations cycle. But we are now, at this point in time, on this bill, presented with this amendment and a second-degree submitted by myself. First, the Senator observes that there is a need for legislation to impose criminal penalties on persons who commit wrongdoing in contracting in the course of our military operations. I concur with that very simply. So how best to do it, I think, is as follows. My amendment would strike the language of the Leahy amendment and substitute language which would make it explicitly extraterritorial, which means we can reach out to these companies that are alleged to have done wrong and make applicable existing criminal statutes, statutes which have been on our books for a long period of time, which have been tested in the courts, and we know precisely what the language means. My amendment would do the following. There are two existing Federal criminal statutes. The first is 18 USC 1001 dealing with false statements; and, secondly, 18 USC 1031, dealing with major frauds against the United States. Those are the statutes, the body of law, which Congress put in place to deal with problems such as may be occurring in our operations in Afghanistan, Iraq, and, as the Senator said in his amendment, any other country in which members of the United States Armed Forces are engaged. So we have reached out not just to those two countries, Afghanistan and Iraq, but we have reached out to accommodate all of those areas. And these companies or individuals can be held accountable. So the second-degree amendment takes care of the potential problems in covering overseas contracting without the problems inherent in the Leahy amendment. I turn now to the Leahy amendment. This was the primary reason I put forward the second-degree amendment because you have added language. Frankly, I say with some modesty, I was a lawyer and a criminal prosecutor. But if I could draw your attention to section D in which you apply all of the penalties of your amendment, D says: Knowingly and willfully an individual or a contractor or an entity or corporation ``materially overvalues any good or service with the specific intent to excessively profit from the war, military action, or relief or reconstruction activities in Iraq, Afghanistan, or such other country. . . .'' I say to my good friend, I am not sure what the derivation of that language is and the extent to which the courts have addressed that language in the context of not a civil but a criminal prosecution. So I pose that as a question.

Mr. WARNER. Mr. President, as the Senator well knows, the distinguished leaders on both sides are now looking at that while I am engaging in debate with him. We are looking at that proposition. I would like to have the opportunity at the earliest convenience to state the purpose for which I initiated the substitute amendment. And I think it is going to meet the majority of objections the Senator from Vermont has with his proposal.

Mr. WARNER. On October 11, 1996, there was one amendment.

Mr. WARNER. A question: Is there some opportunity such that I can present the Senate with an explanation of why I felt there should be a second degree? I would like to do it in just a dispassionate, straightforward manner, and let the Senate then make its decision. So I would like to have the opportunity. I hope in due course to present my side of this issue.

Mr. WARNER. Mr. President, will the Senator yield for a question?

Mr. WARNER. That is very important. Harry Truman was civil.

Mr. WARNER. It might have been amended.

Mr. WARNER. Mr. President, I yield the floor.

Mr. WARNER. Mr. President, my understanding is that the second-degree amendment from the Senator from Virginia is now before the Senate.

Mr. WARNER. Mr. President, I yield back the time.

Mr. WARNER. Mr. President, are we ready to vote on this matter? I urge adoption of the amendment.

Mr. WARNER. We are anxious to move on, and there will not be a requirement for a rollcall vote. I appreciate very much the cooperation because given the bipartisanship on this matter, it will be a timesaver as we move ahead on this bill.

Mr. WARNER. Fine. I ask my colleague to be able to wrap up this very important debate shortly.

Mr. WARNER. Does the Senator from Kentucky wish to modify his amendment?

Mr. WARNER. Madam President, the Senator from Illinois and myself and others were here well into the night last night as the Senator gave a very detailed dissertation on this subject. I find the amendment basically recites this administration's policy. The unambiguous policy of this and preceding administrations is to comply with and enforce this Nation's obligations under international law. These obligations are embedded in American domestic law, including the Uniform Code of Military Justice, which explicitly incorporates the law of war. President Bush has recently stated: We are a nation of law. We adhere to laws. Secretary Rumsfeld, on June 13, stated: There is no wiggle room in my mind or the President's mind about torture. That is not something that's permitted under the Geneva Conventions or the laws of the United States. . . . It's required that people in custody be treated in a humane way. So I think it is very appropriate that we do the codification, as the Senator recommends. I am hopeful that in the conference status Senator Levin and I can work to incorporate basically this amendment.

Mr. WARNER. Mr. President, I thank my distinguished colleague.

Mr. WARNER. Now, Mr. President, I inquire of the desk, I think the other side has slightly gone over their time. I wonder if we might accommodate the chairman of the Intelligence Committee and ask that he be permitted to speak for 2 minutes.

Mr. WARNER. I move to reconsider the vote and move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. WARNER. I say to my colleague, there are basically young enlisted men with no field experience, in no way a comparison to the seasoned cadre of contractors now performing this invaluable service. I wish to move to table, but I will not do it until my colleague has the opportunity.

Mr. WARNER. Mr. President, I ask my colleague a question. This graduating class to which the Senator refers, am I not correct it is enlisted and 18- to 20-year- olds?

Mr. WARNER. I will reserve 1 minute to follow the Senator from Connecticut.

Mr. WARNER. I simply say to colleagues we are putting on them a considerable burden in a very short period of time. I ask a very clear question of the proponent of this amendment, the Senator from Connecticut. In 90 days we have to dismantle a great deal of our interrogation--in Afghanistan, in Iraq and Guantanamo Bay--right as this country is in the middle of combat operations, right at a time when men and women of our Armed Forces, of our coalition forces, are at great personal risk. A few interrogators at this point in time are implicated in the tragic events in the prison situation. As the Senator well knows, the Armed Services Committee is probing that as quickly as we can given the limited time we have had. This bill has been on the floor of the Senate, but we had to temporarily set aside our work. We hope, once I consult with the leadership and members of the committee, to resume that. The point being, this is not the time to put a 90-day jackhammer that severs our ability to continue our interrogation of prisoners with the use of contractors. Several of them did perform in a manner that, hopefully, they can be brought to account in the Abu Ghraib situation, but hundreds of other contractors are carefully and professionally doing their work in interrogation. This amendment would stop that in 90 days. I see the Senator from Colorado.

Mr. WARNER

Mr. WARNER. Mr. President, I ask unanimous consent that the Committee on Indian Affairs be authorized to meet on Wednesday, June 16, 2004, at 10 a.m. in Room 485 of the Russell Senate Office Building to conduct a Business Meeting on pending committee matters, to be followed immediately by an oversight hearing on the implementation in Native American communities of the ``No Child Left Behind Act.'' Mr. President, I ask unanimous consent that the Committee on Indian Affairs also be authorized to meet again on Wednesday, June 16, 2004, at 2 p.m. in Room 485 of the Russell Senate Office Building to conduct a hearing on S. 1996, the Oglala Sioux Tribe Angostura Irrigation Project Rehabilitation and Development Act.