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SENATOR MCCAIN STATEMENT ON NATIONAL DEFENSE AUTHORIZATION CONFERENCE REPORT OF FY ‘08
December 14, 2007
U.S. Senator John McCain (R-Ariz.) today submitted the following statement about the Conference Report accompanying the National Defense Authorization Act of FY ’08 for the Congressional Record.
Mr. President, I sincerely congratulate Chairman Levin, the Members of our Committee, and our House colleagues for their work on the Conference Report to accompany the FY08 National Defense Authorization Act. With provisions that authorize a considerable pay raise for all military personnel, increase Army and Marine end-strength, reform the system that serves wounded veterans, and help prevent waste, fraud, and abuse in defense contracting and procurement, this conference report undoubtedly contains many important elements that will help support our national defense and, in particular, our servicemen and women. However, this conference report also contains other provisions that are very problematic. In fact, so flawed are those provisions that, despite all that is good in the conference report—and there is much—I must respectfully decline to sign it.
In this year’s conference report, and the accompanying bill, there are $5.3 billion in earmarks. That does not even include about $330 million worth of military construction pork “airdropped” by the House Appropriators—despite having enacted ethics reform legislation just two months ago. Of that $5.3 billion, $2.3 billion came from the Senate and $4.1 billion originated in the House. The disparity between the two bills is unprecedented.
Almost half of the total amount of pork in this conference report, and the accompanying Bill, arises from a single provision that authorizes the procurement of eight C-17 Globemaster aircraft that the Defense Department states we neither need nor can afford. I should also note that this Conference Report stripped out an important amendment that called for all congressionally directed spending on new programs and grants to be subject to full and open competition. In my view, the massive pork spending in this conference report renders it a frontal assault on this body’s purported commitment to ethics and earmark reform and, in my view, results in a inexcusable failure in our obligation to the taxpayer.
The conference report also contains troubling provisions that will likely fail to cure abuses in multi-year contracting, possibly weaken the ability of the Department of Defense to waive protectionist restrictions on the purchase of weapon systems containing specialty metals, and allow the Air Force to precipitously retire fully-capable aircraft just so it can buy new ones. Therefore, while many elements in this conference report are undoubtably helpful, I regrettably cannot sign it.
Authorization of additional C-17 aircraft. Clearly, the most egregious single item in this report is a provision that authorizes the Air Force $2.28 billion to buy eight C-17 Globemaster aircraft. I note that the dollar amount associated with this one provision, which originated in the House, nearly equals the total amount of earmarks in this bill that arose from the entire Senate side.
This provision is particularly problematic given that the Secretary of Defense has consistently maintained that the Defense Department met its strategic airlift requirements with the final purchase of C-17 aircraft authorized by the 2007 National Defense Authorization Act and, therefore, simply does not need any more C-17 aircraft. In fact, during deliberations with the conferees, the Defense Department conveyed concern that continuing the C-17 production line would compete with the Department’s number one priority for strategic airlift, the recapitalization of the aerial refueling tanker fleet. Reflecting that view, the President’s Budget Request for fiscal year 2008 included no funding for additional C-17 aircraft and, as it did last year, asked for money to begin shutting down the C-17 production line.
In 2007, Congress allowed the Air Force to buy 10 C-17 aircraft above what it actually needed. This year, in their collective wisdom, the conferees have seen it fit to repeat that multibillion dollar mistake by providing for a follow-on purchase, in the face of the Administration’s admonitions. At the end of the day, this provision does little else than subsidize the continuation of the contractor’s C-17 production line, which is nearing its end—a corporate handout at its worst.
I am particularly concerned about this provision given that I have uncovered compelling evidence of possible wrongdoing in the Air Force’s interaction with the contractor on the C-17 matter. That evidence points to a disturbing level of effort—undertaken jointly by the Air Force and the contractor—to undermine the current program-of-record and support a procurement proposal for which there is no validated requirement and which is not reflected in either the President’s Budget Request or even the Air Force’s own Future Years Defense Program (FYDP). In its rank aggressiveness, the evidence I found, and referred to the appropriate authorities for further review, is not unlike some of what I observed in the Boeing tanker lease scandal. From those authorities, I understand that a review is pending. When faced with similar circumstances concerning the Boeing tanker matter, we suspended procurement activities until all related investigations were concluded. Prudence requires that, at a minimum, we do the same here.
“Military Construction” Pork. This conference report also includes authorization for 52 new military construction projects totaling $328 million requested by individual Members of the House that were not vetted or included in either the House- or the Senate-passed National Defense Authorization Bills for FY 2008. On October 30, 2007, the House Appropriations Military Construction/Veterans Affairs Subcommittee slipped this bloated earmark list to the House Armed Services Committee with no public review or semblance of transparency. And, in order to maintain comity with the appropriators, the majority of defense bill conferees, over my objections, decided to insert the authorizations into our conference report. Not only is this is a classic example of "parachuting" or "airdropping" earmarks into a conference report in the dead of night, which we ostensibly sought to stop with the enactment of a new ethics law two months ago, it is also an abrogation of our role as authorizers to fully vet each new matter we consider—rather than blindly accept what the appropriators tell us. Despite the rhetoric of a “new day” for accountability, allowing such practices reflects that there is no transparency in this process. Regrettably, the conferees appear content to hide behind parliamentary tricks and mental gymnastics while knowing full well the spirit and intent of the reform we sought to achieve earlier this year. Saying that over $300 million in pork construction projects can be added in conference means that there is essentially no limit on how much a program or a project can balloon during conference. This is a "hog call" if I've ever heard one.
Prohibition on Use of Earmarks to Award No Bid Contracts and Noncompetitive Grants. Senate amendment 828 to the Senate-passed Bill applied federal competitive bidding laws and regulations to congressional earmarks. Rather modest in what it sought to do, that provision would not have prohibited Members of Congress from earmarking defense dollars. Instead, it simply would have ensured that taxpayers received the advantage of a competitive process. Under that provision, a Member of Congress in either body would have retained the prerogative to fund an activity that he deems worthy, but a full and open competitive process would be used to select the most qualified entity to undertake the project. If an activity is important enough to require earmarking of taxpayers dollars, that legislative proposal would simply have required transparency and full and open competition. Moreover, waiver authority was built into the provision to allow the Department reasonable flexibility in its implementation. In my view, that important provision should have been included in this conference report.
Multi-year Contracting. The provision that I originally offered as an amendment to the Senate version of the bill clarified how much savings would be required to achieve under a multi-year contract before Congress could authorize that procurement mechanism to buy the largest and most expensive weapon systems. That clarification was important to help the Defense Department use multi-year contracts responsibly to capitalize on mature, well-run programs by buying at economically efficient rates—not to insulate poorly performing systems from effective congressional oversight. While the multi-year contracting provision in the conference report is helpful, it contains language that allows the Department to waive its stringent requirements in a way that eviscerate the provision’s underlying intent. In other words, the waiver provision appears to create a loophole through which the Department can keep chronically poor performing programs “on rails” and away from meaningful congressional oversight.
Aircraft Retirements. For some time now, I have been concerned about how the Air Force, in particular, has been creating requirements for procuring new aircraft by precipitously retiring older but reliable, platforms to bulk up buys of new aircraft platforms. This has required this Committee to legislatively prohibit, in previous authorization bills, the retirement of KC-135s, B-52s, C-5s, U-2s and C-130s. In this year’s conference report, we have unwisely relieved at least a couple of those restrictions.
The Air Force’s number one acquisition priority is to replace its aged KC-135 fleet of tanker aircraft. The Air Force’s original attempt to replace that fleet led to the now infamous Boeing tanker lease scandal, which resulted in jail-time for a top Air Force procurement official and Boeing’s chief operating officer.
This time, the Air Force intends to implement a “comprehensive” tanker replacement strategy, one component of which is the purchase of a new, commercial-derivative tanker. On that component, two contractor teams have submitted offers responding to a request for proposals, which the Air Force is now reviewing. A contract may be awarded as soon as late February 2008. Unfortunately, on the other two components of the strategy—implementing a complementary commercial fee-for-service program and re-engining some of its older KC-135s—the Air Force has made no serious headway. Against that backdrop, I remain concerned that the Air Force may simply maximize its desired purchase of new planes. Several studies conducted by both the Air Force and independent groups indicate that the current KC-135 fleet is viable for the intermediate term. Given that taxpayers have made a significant investment in the KC-135 fleet, the Air Force should not be permitted to precipitously retire them simply because it wants to buy as many new tanker aircraft as possible.
The “Air Force Fleet Viability Board, KC-135 Assessment Report” cautioned that, before retiring KC-135s, the Air Force needs to conduct destructive testing so it can proceed on an informed basis. However, the Air Force has not complied with that recommendation. Nonetheless, section 135 of this conference report allows the Secretary of the Air Force to retire immediately 48 KC-135E tanker aircraft. It also allows the Air Force to start retiring the remaining 37 KC-135E during FY08 after contract award for the KC-X tanker replacement aircraft. Once again, without reasonably restricting the Air Force’s retirement of KC-135s, we may have lost the ability to ensure that the Air Force does not replace its current fleet of tanker aircraft by simply maximizing its purchase of commercial-derivative aircraft—a solution that simply disregards the interests of the taxpayer.
A provision on the retirement of C-130 airlift aircraft is similarly improvident. That provision, section 133, would repeal the requirement in the FY 2007 National Defense Authorization Act that any C-130E aircraft retired in FY 2007 be maintained in a condition that would allow recall of the aircraft to active service. Another provision, section 134, would allow for the retirement of 29 more C-130E aircraft in fiscal year 2008.
Without the Department’s requirements for tactical airlift capability well-defined, it would be premature to retire any C-130 aircraft, at least until: (1) an Air Force Fleet Viability Board has conducted an assessment of the C-130E/H fleet of aircraft; and (2) the results of the Intra-Theater Lift Capability Study (ITLCS), phases 1 and 2, identify the right mix and number of intra-theater airlift assets. Therefore, I believe that we should not retire any more C-130 aircraft until the Department determines what its intra-theater lift requirements are and that aircraft already should not be stripped for parts or destroyed until we have the results of the requirements analysis.
Specialty Metals/"Buy America" Provisions. This conference report also contains several policy provisions that weakens the broad waiver authority that the Department of Defense currently has with regard to weapon systems that contain specialty metals. For a long time, I have tried to lessen the impact of, if not entirely eliminate, “Buy America” restrictions, including the Berry Amendment, in Defense Department purchases. Legislation restricting the Department’s purchases along those lines tend to direct spending for the benefit of a particular entity or congressional district. So, I am concerned that, with the specialty metals/"Buy America" policy provisions contained in this conference report, we may have further opened the door for more pork legislation in the future. Finally, as those policy provisions were not in either the Senate- or the House-passed defense bills, I question whether those provisions should have been added in conference.
Policy Relating to Major combatant Vessels of the Strike Force. Another objectionable provision in the conference report would establish a policy that future major combatant ships be nuclear-powered, regardless of requirements, cost, or other considerations that go into selecting a new ship class propulsion system. The Secretary of Defense could only seek a waiver of this requirement if he determines that nuclear propulsion for a future ship is not in the national interest. If the next cruiser class, CG(X), is required to be nuclear-powered as a result of this policy, its cost will increase by greater than $1 billion and the ship will be delayed several years. The result would be significantly increased cost, fewer ships, and delays in fielding the next major surface combatant class of ships. At a time when the Secretary of the Navy is doing all he can to reform how the Navy goes about buying its biggest and most expensive weapon systems, this provision is a move in the wrong direction.
Other. The conference report also includes a provision that sets a very dangerous precedent by in effect forcing the Department to take action for the benefit of certain Members of Congress. Section 2846, entitled “Transfer of jurisdiction, former Nike missile site, Grosse Ile, Michigan”, mandates that the Department of Defense spend funds from an account that has historically been guided by an objective assessment of the risk to human health. This provision requires the Corps of Engineers to clean up a site to a higher standard than the Army deems necessary in Gross Ile, Michigan, so the property can be used as a wildlife refuge. Let me be clear: I have nothing against refuges. But, the Department of Defense has over 9,900 properties evaluated as Formerly Used Defense Sites (FUDS) and must conduct cleanup projects at more than 3,000 of them. The FUDS program costs the Department over $250 million a year and is expected to cost the Department $18.7 billion when all said and done.
We simply cannot afford allowing individual Members of Congress to move their pet projects to the top of the priority list, completely disregarding the risk to health and safety of other more vital projects. Clean up should be based on the priority of risk, not political muscle.
There was another conference decision which I believe may be very detrimental to our role as an authorizing committee. Senate-passed bill, Senate section 2811, “General Military Construction Transfer Authority”, was intended to extend to military construction accounts the current congressional review process for requests from the Department of Defense for the reprogramming of funds between accounts. Currently, for every funding account except military construction, the Secretary of Defense notifies all four defense committees of his intent to transfer funds from one account to another during the year to better manage obligations. However, for military construction accounts, the Secretary sends a notification only to the House and Senate subcommittee on Military Construction and Veterans Affairs. The Senate provision sought to extend that oversight responsibility to our conferees on the House and Senate Armed Services Committees. That was a good provision. It was included in our Senate markup without question and was agreed to by both the House and Senate staffs during conference.
However, at the last moment during conference deliberations, Members from the House Appropriations Committee persuaded my fellow conference leaders to drop the provision for no substantive reason, other than it would diminish the power of the appropriators. This capitulation is very troubling. The provision was written in response to recent actions by the Appropriations subcommittees that either held up military construction reprogramming requests based on parochial interests or approved reprogramming requests over the objections of this Committee’s staff. In particular, we were concerned by the proposal made by the Air Force to the Committees on Appropriations in January 2007 to use the existing reprogramming process to carry out a “new start” military construction project that had not been authorized by law—a clear challenge to the role of the authorizing committees over new start military construction.
The Committee was also concerned that the appropriators in both bodies approved a reprogramming in July 2007 for a military construction project for which no funds were appropriated in fiscal year 2007, as a favor to a particular Member—disregarding the policy implications of the action. Also, earlier this year, the Senate appropriators held up approval of two reprogramming requests for projects in Virginia in order to force the Department to act on other reprogramming requests. If this Committee had equal authority, we would have the ability to prevent such shamelessly parochial and institutionally divisive behavior. Senate section 2811 would have put an end to such activity between the appropriators and authorizers by establishing equal footing with regard to reprogramming requests on military construction projects. I am at a complete loss why it was dropped from our conference agreement.
Again, while there is much in this year’s conference report that is very worthwhile and helpful to helping provide for the national defense, the elements contained within it that move in the wrong direction are too numerous, too large, and too costly for any Member to ignore. With those elements in this conference report, I simply cannot in good conscience tell the American people that this is our best—that this conference report represents our best vision for the country on matters that relate to, or affect, our servicemen and women and how we secure our national security interests abroad. By declining to sign this conference report today, I respectfully convey to the Chairman and my fellow conferees my belief that we can, and for the sake of both the warfighter and taxpayer, we must do better. Thank you, Mr. President. I yield the floor.
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