The publication is reproduced in full below:
VETERANS GET OUTSIDE DAY
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NATIONAL PUBLIC WORKS WEEK
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KIDS TO PARKS DAY
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NATIONAL BRAIN TUMOR AWARENESS MONTH
Mr. REED. Mr. President, I ask unanimous consent that the Committee on the Judiciary be discharged from further consideration on S. Res. 206, 223, and 226; that the Senate proceed to the en bloc consideration of the following Senate resolutions: S. Res. 206, Veterans Get Outside Day; S. Res. 223, National Public Works Week; S. Res. 226, Kids to Parks Day; and S. Res. 229, National Brain Tumor Awareness Month.
There being no objection, the committee was discharged from the relevant resolutions, and the Senate proceeded to consider the resolutions en bloc.
Mr. REED. I ask unanimous consent that the resolutions be agreed to, the preambles be agreed to, and that the motions to reconsider be considered made and laid upon the table, all en bloc.
The PRESIDING OFFICER. Without objection, it is so ordered.
The resolutions were agreed to.
The preambles were agreed to.
(The resolution (S. Res. 206), with its preamble, is printed in the Record of May 10, 2023, under ``Submitted Resolutions.'')
(The resolution (S. Res. 223), with its preamble, is printed in the Record of May 18, 2023, under ``Submitted Resolutions.'')
(The resolution (S. Res. 226), with its preamble, is printed in the Record of May 20, 2023, under ``Submitted Resolutions.'')
(The resolution (S. Res. 229), with its preamble, is printed in today's Record under ``Submitted Resolutions.'')
The PRESIDING OFFICER. The Senator from Rhode Island.
Unanimous Consent Request--Executive Calendar
Mr. REED. Madam President, I rise and join my colleague Senator Warren to discuss the unprecedented political holds the Senator from Alabama has placed on 221 general and flag officers. This hold is now into its fourth month, and it is beginning to have serious impacts on military personnel and their families. Commanders who are supposed to retire or move on to a new assignment cannot do so because there is no one to replace them. Commanders who are set to take new assignments remain in limbo. Family members don't know when they are going to move. Children don't know what new school they will attend or when. Thousands of lives are being disrupted, all because the Senator from Alabama has chosen to block merit-based, nonpolitical military promotions over a policy he does not like.
(Mr. OSSOFF assumed the Chair.)
I would like to address a few of the assertions raised by the Senator from Alabama that he has used to justify his unprecedented and damaging hold on military promotions.
First, on the matter of the Hyde Amendment and the prohibitions on Federal funding for abortions, the Senator says the Department of Defense does not have the authority to provide travel benefits and grant leave for reproductive health care not covered by TRICARE. He is in error.
Let's provide some clarity on terms. The so-called Hyde Amendment does not apply to the Department of Defense. Instead, the Department has its own statute that restricts the use of Department of Defense funding ``to perform abortions'' and restricts the use of Department of Defense medical facilities ``to perform an abortion,'' except when the life of the mother is endangered or in cases of rape or incest.
No reasonable interpretation of the policy can conclude that it authorizes the Department of Defense to pay for the performance of abortions unless under those conditions I mentioned--the life of the mother is in danger or in cases of rape or incest. Those costs for such abortions that are not covered under DOD will continue to be borne, as they are today, by servicemembers and dependents out of pocket. That does not change.
The Department's policy is legal and rooted in longstanding Department of Justice interpretation of the Hyde Amendment and similar restrictions. In fact, the Department of Defense General Counsel requested the Justice Department's views on its policy last fall. The Justice Department's Office of Legal Counsel issued a lengthy and informative slip opinion concluding that ``10 United States Code Section 1093 does not bar the Department from using appropriated funds to pay for servicemembers and their dependents to travel to obtain abortions that the Department cannot fund directly.''
The opinion, which I encourage all my colleagues to read, traces the legislative history of the Hyde Amendment, similar Hyde-like restrictions, and the specific restriction applicable to the Department codified in section 1093.
Mr. President, I ask that an excerpt of the October 2022 Justice Department slip opinion considering the Department of Defense policy be printed in the Record.
There being no objection, the material was ordered to be printed in the Record as follows:
(Slip Opinion)
Authority of the Department of Defense To Use Appropriations for Travel by Service Members and Dependents To Obtain Abortions
The Department of Defense may lawfully expend funds to pay for service members and their dependents to travel to obtain abortions that DoD cannot itself perform due to statutory restrictions. DoD may lawfully expend funds to pay for such travel pursuant to both its express statutory authorities and, independently, the necessary expense doctrine.
(October 3, 2022)
Memorandum Opinions for General Counsel Department of Defense
You have asked whether the Department of Defense (``DoD'') may lawfully expend funds to pay for service members and their dependents to travel to obtain abortions that DoD itself cannot perform due to statutory restrictions. We conclude that DoD may lawfully expend funds for this purpose under its express statutory authorities and, independently, under the necessary expense doctrine.
i.
By statute, ``[f]unds available to the Department of Defense may not be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term or in a case in which the pregnancy is the result of an act of rape or incest,'' 10 U.S.C. 1093(a), and
``[n]o medical treatment facility or other facility of the Department of Defense may be used to perform an abortion except where the life of the mother would be endangered if the fetus were carried to term or in a case in which the pregnancy is the result of an act of rape or incest,'' id. 1093(b ). By its express terms, 10 U.S.C. 1093(a) applies only to funds used to ``perform abortions.'' As we have previously concluded in assessing identical language restricting the Peace Corps' use of its appropriations, the plain text is dispositive here. See Peace Corps Employment Policies for Pregnant Volunteers, 5 Op. O.L.C. 350, 357
(1981). This language ``does not prohibit the use of funds to pay expenses, such as a per diem or travel expenses, that are incidental to the abortion.'' Id.
This conclusion is confirmed by section 1093's legislative history. When Congress originally enacted the provision in 1984, it prohibited DoD only from using funds ``to perform abortions except where the life of the mother would be endangered if the fetus were carried to term.'' Pub. L. No. 98-525, 1401(e)(5), 98 Stat. 2492, 2617-18 (1984). DoD subsequently adopted a policy of prohibiting non-covered abortions from being performed at any DoD facility even when privately funded--a policy that President Clinton then directed DoD to reverse, stating that it went ``beyond . . . the requirements of the statute.'' Memorandum on Abortions in Military Hospitals, 1 Pub. Papers of Pres. William J. Clinton 11, 11 (Jan. 22, 1993). In 1996, Congress responded to President Clinton's directive by amending 10 U.S.C. 1093 to make clear that, in addition to the prohibition on using funds to ``perform abortions,'' ``[n]o medical treatment facility or other facility of the Department of Defense may be used to perform an abortion except where the life of the mother would be endangered if the fetus were carried to term or in a case in which the pregnancy is the result of an act of rape or incest.'' 10 U.S.C. 1093(b). It is notable that the amendment was targeted narrowly to address the specific issue of DoD's use of its medical treatment facilities, rather than reaching the same result via a broader prohibition on expenditures indirectly related to the provision of abortions.
The limited scope of the 1996 amendment is especia11y significant because when Congress has wanted to restrict abortion-related expenditures beyond those for the procedure itself, Congress has done so. For example, in 1988--prior to amending 10 U.S.C. 1093--Congress had attached a restriction to Department of Justice (``DOJ'') funds prohibiting the use of those funds ``to require any person to perform, or facilitate in any way the performance of, any abortion.'' Pub. L. No 100-459, tit. II, 206, 102 Stat. 2186, 2201 (1988)
( emphasis added); see also, e.g., Consolidated Appropriations Act, 2022, Pub. L. No. 117-103, div. E, 726(d), 136 Stat. 49, 131 (``CAA 2022'') (referring to funding for ``abortion or abortion related services''
(emphasis added)). This DOJ restriction is also in the current appropriation. See CAA 2022, div. B, 203. That Congress chose not to include such capacious language in the 1996 amendment confirms that it did not intend for the prohibition to sweep so widely.
Other DOJ appropriation restrictions provide further evidence that Congress did not intend DoD's prohibition on the use of funds to perform abortions to reach ancillary expenses, such as travel costs. In addition to the provision noted above, section 202 of the current appropriation contains a general prohibition against using the appropriated funds ``to pay for an abortion.'' Id., div. B, 202. Section 204 then contains a clarification that the prohibition on requiring any person to perform or facilitate an abortion does not ``remove the obligation of the Director of the Bureau of Prisons to provide escort services necessary for a female inmate'' to obtain an abortion ``outside the Federal facility.'' Id., div. B, 204. Importantly, this language in section 204 does not also create an exception to the general funding restriction in section 202, but rather only clarifies that nothing in section 203 ``remove[s] the obligation'' of the agency to provide transportation services. Id. Section 204 therefore is premised on an understanding that section 202's general prohibition on ``pay[ing] for an abortion'' does not affect the agency's ability to provide such escort services, showing that when Congress prohibits funds from being used ``to pay for an abortion,'' it does not intend that prohibition to reach transportation expenses.
Comparing 10 U.S.C. 1093 to the text and history of the longstanding funding restriction known as the Hyde Amendment is similarly instructive. The Hyde Amendment restricts expenditures by the Departments of Labor, Health and Human Services, and Education by providing that no covered funds
``shall be expended for any abortion'' or ``for health benefits coverage that includes coverage of abortion,'' except ``if the pregnancy is the result of an act of rape or incest; or . . . in the case where a woman suffers from a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself that would, as certified by a physician, place the woman in danger of death unless an abortion is performed.'' CAA 2022, div. H, 506-507. In previous advice, we concluded that the Hyde Amendment would not bar the use of appropriated funds to provide transportation for women seeking abortions. See Memorandum for Samuel Bagenstos, General Counsel, Department of Health and Human Services, from Christopher H. Schroeder, Assistant Attorney General, Office of Legal Counsel, Re: Application of the Hyde Amendment to the Provision of Transportation for Women Seeking Abortions (Sept. 27, 2022). In reaching that conclusion, we noted, among other considerations, that earlier versions of the Hyde Amendment only applied to funds
``for any abortion,'' and that in 1997 Congress added language to reach funds ``for health benefits coverage that includes coverage of abortion.'' Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, 1998, Pub. L. No. 105-78, 509(a)-(b), 111 Stat. 1467, 1516 (1997); see Application of the Hyde Amendment to Federal Student-Aid Programs, 45 Op. O.L.C. __, at *3 (Jan. 16, 2021); H.R. Rep. No. 105-390, at 119 (1997)
(Conf. Rep.); see also 143 Cong. Rec. 17,448 (1997)
(statement of Sen. Ashcroft). In the context of health insurance, the funds are paid to reimburse the provider or the insured for, and thus effectively pay for, the abortion procedure itself. As a result, payment for health insurance that covers abortions is more closely connected to the actual provision of abortion than transportation to and from the procedure. Thus, the fact that Congress revised the Hyde Amendment to specify that it applies to payments for health benefits coverage supports the view that the prohibition on expending funds ``for any abortion'' is limited to the direct provision of abortions and would not apply to transportation. More generally, the amendment suggests that when Congress has wanted to clearly encompass certain expenditures beyond the direct provision of the procedure, Congress has amended abortion-related funding restrictions to do so.
For these reasons, 10 U.S.C. 1093 does not prohibit the use of funds for expenses that are indirect or ancillary to the performance of abortion. We therefore conclude that 10 U.S.C. 1093 does not bar DoD from using appropriated funds to pay for service members and their dependents to travel to obtain abortions that DoD cannot fund directly.
Mr. REED. The Justice Department's opinion on the Defense Department's policy is not new and is not partisan. In fact, it relies on decades of executive branch interpretation of the Hyde Amendment through administrations of both parties.
In 1981, for example, the Justice Department considered what it described as identical language restricting the Peace Corps' use of Federal funds to ``perform abortions.'' In that opinion, President Reagan's Justice Department concluded that the language ``does not prohibit the use of funds to pay expenses, such as a per diem or travel expenses, that are incidental to the abortion.'' That opinion was authored by Ted Olson, then the Assistant Attorney General and the future Solicitor General of the United States under President George W. Bush.
Mr. President, I ask unanimous consent that an excerpt of the 1981 Justice Department opinion on the Peace Corps' policy be printed in the Record.
There being no objection, the material was ordered to be printed in the Record, as follows:
Peace Corps Employment Policies for Pregnant Volunteers
The Pregnancy Discrimination Act (PDA) would prohibit the Peace Corps from implementing an across-the-board policy of terminating or reassigning volunteers solely because they become pregnant while assigned overseas, or because they have an abortion. A decision to terminate a pregnant volunteer must be based on a case-by-case assessment of the volunteer's ability to function effectively in her assignment while pregnant or after delivery of the child.
Under the PDA, the fact that a volunteer who has been terminated because of pregnancy chooses to have an abortion cannot he considered in a decision on her reapplication for service.
Even though a specific restriction in the Peace Corps' appropriation prohibits the use of its funds to perform abortions, so that the Peace Corps may not pay for the cost of an abortion for one of its volunteers, the PDA would require the Peace Corps to continue to pay travel and per diem expenses to volunteers evacuated to have an abortion, as long as it provides such compensation to other volunteers evacuated for comparable medical conditions. The Peace Corps must also allow volunteers to draw upon their accumulated readjustment allowance to pay for an abortion, if similar access is allowed for other medical expenses.
(November 20, 1981)
Memorandum Opinion for the General Counsel, Peace Corps
This responds to your request for this Office's views on several questions about the Peace Corps' policies on hiring and reinstatement of volunteers who become pregnant while overseas and of pregnant volunteers who elect to have an abortion, and on reimbursement of travel and per diem expenses to volunteers evacuated to the United States for the purpose of obtaining an abortion. We conclude that the Pregnancy Discrimination Act would prohibit the Peace Corps from implementing any across-the-board policy of terminating volunteers who become pregnant while overseas or pregnant volunteers who elect to have abortions, but that in some limited circumstances termination or reassignment may be appropriate, on an ad hoc basis, because of the unique demands and constraints of Peace Corps service. We do not believe, however, that the Peace Corps may consider the fact that a volunteer who had been terminated because of pregnancy subsequently elected to have an abortion in reviewing that individual's application for reinstatement. With respect to the funding of abortion-related expenses, we conclude that the Peace Corps is not barred from using appropriated funds to pay travel costs and a per diem to volunteers who are evacuated for the purpose of obtaining an abortion, and, in fact, that the Pregnancy Discrimination Act requires the Peace Corps to continue paying those costs, so long as travel and per diem expenses are paid to volunteers evacuated for other comparable medical disabilities.
I. Background
Current Peace Corps policy provides for an ad hoc determination whether volunteers who become pregnant or pregnant volunteers who elect to have an abortion will be allowed to remain in their assigned countries. In determining whether a pregnant volunteer (including her spouse) should be allowed to remain in service, the Country Director looks at a variety of factors, including health hazards to the mother and child, the ability of the parents to support the child, and the prospects for continued effectiveness by the parents. A pregnant volunteer who elects to have an abortion may be separated, or returned to duty if the Country Director determines she will be able to serve effectively under the circumstances. Pregnant volunteers, volunteers with dependent children, and volunteers who have had abortions while in service do serve in the Peace Corps, although individuals who are pregnant or who have dependent children are not encouraged to become volunteers. Volunteers who choose to have an abortion are generally evacuated to the United States for the procedure. The Peace Corps pays travel expenses and a per diem to those volunteers who have an abortion, as it does for volunteers evacuated for other medical or surgical treatment. Because of a prohibition in the Peace Corps' current appropriations authority against the use of appropriated funds to pay for abortions except where the life of the woman would be endangered or in cases of reported rape or incest, the Peace Corps does not now pay the costs of the abortion procedure itself. Volunteers may, however, draw upon accumulated readjustment allowance funds to pay for abortion procedures.
You have asked us to address the following questions:
1. Can the Peace Corps terminate any volunteer who becomes pregnant while a volunteer because of pregnancy? If so, could such a policy be limited to single volunteers?
III. Reimbursement or Expenses
You have also asked whether the Peace Corps must, or indeed can, consistent with the PDA and current restrictions on the use of appropriated funds, continue to pay travel costs and a per diem for volunteers who obtain an abortion while in service. The Peace Corps now pays those costs under a general policy providing for evacuation to the United States of volunteers who require ``elective (necessary but not emergency) surgery of any consequence.'' Until the beginning of FY 1979, the Peace Corps also paid for the costs of the abortion procedure itself. In 1978, Congress included language in the Peace Corps' appropriations legislation limiting the use of appropriated funds for abortions. We understand that the currently effective language is contained in Pub. L. No. 96- 536, Sec. 109, 94 Stat. 3166, 3170 (1980), and prohibits the use of funds ``to perform abortions except where the life of the mother would be endangered if the fetus were carried to term; or except for such medical procedures necessary for victims of [reported] rape or incest . . . or for medical procedures necessary for the termination of an ectopic pregnancy.''
On its face, this restriction covers only payments made
``to perform abortions''; it does not prohibit the use of funds to pay expenses, such as a per diem or travel expenses, that are incidental to the abortion. We believe that the plain language of the appropriations restriction is dispositive, and does not require the Peace Corps to cease payment of incidental expenses other than the costs of the abortion itself.
This does not, however, dispose of the question whether the Peace Corps, in its discretion, may cease payment of travel and per diem expenses for volunteers who elect to have abortions. The statutory authority for payment of those expenses vests broad discretion in the President or his delegated representative to authorize ``such health care
Mr. REED. The Justice Department has likewise considered and concluded that the Hyde Amendment does not prevent the Bureau of Prisons from providing transportation services for inmates to seek abortion care outside the prison system, noting that the Bureau has
``long provided'' such benefits. This authority to provide transportation benefits dates at least to the 1996 version of Bureau regulations and continues uninterrupted to the present day.
So, again, this assertion that the Department's policy contravenes some long-held principle is wrong and contrary to fact.
Second, on the matter of travel authorities, the Defense Department has broad statutory authority to provide travel and transportation benefits to servicemembers and dependents and empowers the Secretary of Defense to define those parameters by regulation. As the Justice Department noted, 37 United States Code, section 452, authorizes the Secretary to provide ``actual and necessary expenses of travel and transportation, for, or in connection with . . . any travel as authorized or ordered by the administering Secretary.''
Further, the Justice Department aptly noted that 37 United States Code, sections 452 and 453, authorize travel benefits for servicemembers and dependents in connection with ``unusual, hardship, or emergency circumstances'' and leaves the definition of those terms and other implementing guidance to the Secretary.
I remind my colleagues again that never before in our history has a fundamental healthcare right been denied to servicemembers by a single decision on a single day by the Supreme Court. No matter what side of the abortion debate you are on, you cannot deny that what many women considered to be a fundamental, constitutionally protected right for 50 years was eliminated by the stroke of a pen and that those who depend on these rights now find themselves assigned to locations, through no choice of their own, where these services are no longer available in any meaningful way. In my view, this meets any definition of ``unusual, hardship, or emergency circumstances.''
The Defense Department's policy is a result, as I just suggested, of the Dobbs decision which places extraordinary hardships on servicewomen and dependents, resulting in military personnel no longer being treated equitably at every military base. The Department of Defense's policy seeks to provide a level playing field so that a woman's access to healthcare is not based on her assignment and such access is consistent throughout the force. It seeks further to ensure that these issues do not become determinant in a woman's decision to join the military or remain in the military.
The U.S. Government has provided transportation and other incidental benefits and support relative to healthcare not covered by government programs, including abortion, to certain populations for decades. Servicemembers and their dependents are, I believe, uniquely affected by the Dobbs decision and deserve at least that same level of support.
Lastly, the Senator from Alabama has stated that these officers whose promotions he is holding will receive backpay. That is simply not true. The Department of Defense confirmed for the Armed Services Committee this week that there is no backpay mechanism for these officers. Their date of rank is the date of their appointment, which for general and flag officers can only occur after Senate confirmation. There will be no backpay.
I want to state again what I stated before. It is deeply detrimental to our national security and harmful to the well-being of military families to delay the promotions of senior military leaders for political purposes or any purpose, really, unrelated to an officer's qualifications. It is contrary to the practice and traditions of the Senate Armed Services Committee and the Senate. It does a great disservice to the men and women in uniform and their families.
I would ask that the Senator from Alabama release his holds immediately before more damage is done.
I yield the floor.
The PRESIDING OFFICER. The Senator from Massachusetts.
Ms. WARREN. Mr. President, I want to thank the Senator from Rhode Island for his leadership. He has worked hard to make sure that the Senate Armed Services Committee works in a bipartisan manner to keep our country safe. His steadfast approach has rightfully earned him respect from our colleagues on both sides of the aisle, and I appreciate his being here tonight on this issue.
Mr. President, several weeks ago, I came down to the Senate floor to ask the Senator from Alabama to reconsider his unprecedented action of blocking hundreds of promotions earned by our men and women in uniform. He refused, so I am here to ask again.
As I said the last time I spoke about this, most people are aware that the Senate votes on nominees appointed by the President to occupy top roles in government--Cabinet Secretaries, judges, Ambassadors. Less well known is the fact that the Senate must also vote to approve thousands of military promotions each year. If a colonel has done really well on the job and their services promotion board decides that they are ready to be a brigadier general, the Senate must vote to approve this promotion before it can go through.
Typically, this vote is a formality. These promotions are processed in big batches rather than one at a time, and they nearly always happen without taking a recorded vote. But right now, the Senator from Alabama all by himself is blocking every single senior military nomination and promotion from moving forward. This means that one Senator is personally standing in the way of the promotions for 221 of our top-
level military leaders, holding up pay raises for 221 men and women in uniform, blocking 221 senior military leaders from taking their posts, and jeopardizing America's national security.
In April, I sent a letter to Defense Secretary Austin asking about the impact of holding up these military promotions. Secretary Austin didn't pull any punches. He said:
The longer that this hold persists, the greater the risk the U.S. military runs in every theater, every domain, and every service.
He went on to point out that these unprecedented and unnecessary holds are creating ``rising disquiet from our allies and partners at a moment when our competitors and adversaries are watching.''
There is bipartisan opposition to the Senator from Alabama's actions. Thanks to Chairman Reed, seven former Defense Secretaries, including ones who served under President Trump and President George W. Bush, sent a letter stating that leaving senior positions ``in doubt at a time of enormous geopolitical uncertainty sends the wrong message to our adversaries and could weaken our deterrence.''
The Senator from Alabama hurts Active-Duty military. He also hurts their families. In this letter describing the consequences of the Senator from Alabama's hold, Secretary Austin noted that it places an
``unconscionable burden on families that are already making significant sacrifices.''
There are mounting worries that the negative impacts on military families is threatening our military's ability to retain leaders who have completed thorough, months-long reviews to earn those promotions.
At a recent Senate Armed Services Committee hearing, the Secretary of the Air Force said:
One of the things that motivates our people in terms of retention . . . is how they feel that their families are being treated.
He said that he also knows that these families do not want to be treated liked the Senator from Alabama's political football.
The Senator from Alabama is punishing 221 dedicated men and women who serve in our military because he disagrees with one of the Pentagon's policy decisions. He is opposed to a Department of Defense policy established to help members of the military and their families access healthcare--specifically, reproductive healthcare.
I strongly support this particular policy, but it is no secret that I disagree with a lot of other policy positions at the Pentagon. And, as I reminded the Senator from Alabama the last time we had this discussion on the Senate floor, as Senators, we have many tools we can use to shape and influence government policy without putting our national defense at risk.
We can pass laws; we can conduct oversight; we can meet with administration officials; we can hold hearings. From time to time, Senators object to an individual nomination, usually to express opposition either to the nominee or to ensure that the Senator gets answers from a Federal Agency. I have done this in the past as have many of my colleagues on both sides of the aisle.
That is not the approach the Senator from Alabama has taken. Instead, he is blocking every single top military leader from advancing indefinitely. The last time I came to the floor, he was holding up 184 nominees. Now he has snared 221 top-level servicemembers who are currently slated for advancement. He has stopped every one of them dead in their tracks.
The Senator from Alabama is singlehandedly holding up three 4-star commanders, 35 3-star commanders, multiple Silver Star and Purple Heart recipients, the next commander of our Fifth Fleet in the Middle East, the next commander of the Seventh Fleet in the Pacific, the Navy's air and surface warfare commanders; and as a preview of coming events, the Senator from Alabama has already promised to block the next Chairman of the Joint Chiefs of Staff.
The Senator from Alabama has already held some of these nominees for as long as 3 months. That is 3 months that they won't have time in their next roles. That is 3 months that they won't get a pay bump, and there is no retroactive pay here. That is 3 months that they don't get the experience and the responsibilities of their new duty stations. That is 3 months, and there is no end in sight.
How many blows to their military careers and to their families do these men and women have to suffer before some of them simply walk away?
This isn't right.
The Senator from Alabama has not raised any objections to the process by which these men and women were vetted and nominated. Each of these nominees has undergone a thorough review, first by their military service and then by the Joint Chiefs of Staff and the Office of the Secretary of Defense. Months after those reviews, their nominations were sent to the White House for additional scrutiny and then to Congress to officially authorize the promotions.
These are our military's best leaders, and they have proven themselves to the highest degree. As a reward for their service and their exemplary dedication, the Senator from Alabama holds them hostage, with no concern for what it means to their careers, to the servicemembers depending on them for leadership, or to their families.
The Senator from Alabama's actions are not just the usual back-and-
forth in Washington. His holds pose a grave threat to our national security and our military readiness. They actively hurt our ability to respond quickly to threats around the world. That is not my conclusion; that is the conclusion of the Secretary of Defense.
When I tried to move these nominations forward the last time, I said I was concerned about how the actions of the Senator from Alabama were undermining military readiness. The Senator responded that he knew that I had sent a letter to Secretary Austin to ask him about the impact of the holds on military readiness but that the Secretary had not yet responded. The Senator said the last time we were on the floor here together that he would consider Secretary Austin's concerns. In fact, he said that he ``can't wait to read it,'' but he would not budge in the meantime.
So I am here this evening to place into the Record Secretary Austin's reply. In his letter, the Secretary makes his concerns clear. He explains how the actions of the Senator from Alabama pose a grave threat to national security by harming military readiness. The Secretary also explains how the Senator from Alabama harms military families.
I sincerely hope that the unvarnished assessment of our Secretary of Defense will be enough to move the Senator from Alabama to lift his holds and let these nominations go forward.
Mr. President, I ask unanimous consent that Secretary Austin's letter be printed in full in the Record.
There being no objection, the material was ordered to be printed in the Record, as follows:
Hon. Elizabeth Warren, U.S. Senate, Washington, DC.
Dear Senator Warren: Thank you for your letter requesting a full accounting of the impact on our national security and the risks to our military readiness resulting from Senator Tuberville's indefinite hold on the confirmation of our general and flag officers.
I appreciate and share your deep concern over this hold, which is unprecedented in its scale and scope. Delays in confirming our general and flag officers pose a clear risk to U.S. military readiness, especially at this critical time.
The Department of Defense has 64 three- and four-star nominations pending for positions due to rotate within the next 120 days. These include the Chief of Staff of the Army; the Chief of Naval Operations; the Commandant and Assistant Commandant of the Marine Corps; the Director of the National Security Agency and Commander of United States Cyber Command; and the Commander of United States Northern Command.
Additionally, several one- and two-star nominations are now on indefinite hold for general officers and flag officers slated to take command or support critical positions across the Joint Force. Within the next nine months, approximately 80 three- and four-star rotations are projected across the Department. Those positions include the Chairman of the Joint Chiefs of Staff, the Vice Chief of Staff of the Army, and the Vice Chief of Staff of the Air Force. In total, between now and the end of the year, the Department projects that approximately 650 general and flag officers will require Senate confirmation.
This indefinite hold harms America's national security and hinders the Pentagon's normal operations. The United States military relies on the deep experience and strategic expertise of our senior military leaders. The longer that this hold persists, the greater the risk the U.S. military runs in every theater, every domain, and every Service.
Mission Vacancies
The tenure of Service Chiefs is limited by law, and thus, incumbents must vacate their positions at the appointed time and may only be extended under extraordinary circumstances. Collectively, these positions oversee more than 1.2 million active and reserve component Service members and provide Service personnel and resources to the commanders of the unified combatant commands. By law, Service Chiefs preside over the capabilities, requirements, policies, and plans of their Services and serve as the principal military advisors to the Secretaries of the Military Departments. Put simply, our Service Chiefs train and equip the Joint Force. Without these leaders in place, the U.S. military will incur an unnecessary and unprecedented degree of risk at a moment when our adversaries may seek to test our resolve.
The hold causes especially acute, self-inflicted problems in new domains of potential conflict. The Director of the National Security Agency and Commander of United States Cyber Command, is responsible for supporting every combatant commander and Service member around the globe--including troops in hostile or hazardous areas--with actionable signals intelligence and cybersecurity support. The Director also ensures that military communications and data remain secure and out of the hands of our adversaries, safeguarding our advanced command, control, communications, computer intelligence, surveillance, and reconnaissance capabilities against the People's Republic of China, Russia, Iran, North Korea, ISIS, and more. Failing to fill this position weakens the cybersecurity of the United States.
Furthermore, delays in confirming a large number of one- and two-star general and flag officers jeopardizes our current and future readiness. The Department relies on these experienced leaders to execute tactical actions every day and extend our strategic advantages for the long term. General and flag officers at this level are responsible for executing strategy, acquiring new technologies, enhancing tactical effectiveness, conducting joint training, and strengthening global alliances. These general and flag officers also provide direct leadership and mentorship to thousands of enlisted Service members and junior and field grade officers across the Department. Their importance cannot be overstated.
Power Projection Abroad
General and flag officers provide oversight of the Department's military and civilian staffs, help decide how we employ our forces, and take care of the Service members, civilians, and families in their organizations. Delays in confirmation will soon foist vacancies on the most senior military positions across each of the Services, imposing new and unnecessary risks on U.S. warfighters across multiple theaters of operations.
The hold also makes it harder for the United States to fulfil its global leadership responsibilities, including to our treaty allies and our valued partners around the world. Our smoothly running normal processes and predictable military transitions have long set helpful expectations among allies and partners. Now, however, this hold has created unnecessary uncertainty. That diminishes our global standing as the strongest military in the world, which is in large part based on our stable processes and orderly transitions.
General and flag officers have the authority to make decisions and commit resources, develop key policies, work with our allies and partners, and confront our rivals and foes. The full impact of this hold may not be immediately noticeable because of the resilience built into our military organizations, but over time, the hold will cause cascading impacts to our readiness and needlessly hinder our ability to meet our strategic objectives in the Inda-Pacific, Europe, the Middle East, and beyond.
The absence of experienced and Senate-confirmed senior leadership limits our ability to deepen our cooperation with our allies and partners through multilateral training and cooperative engagements. Recent exercises, such as Balikatan 2023 with the Armed Forces of the Philippines or joint U.S.- Israeli naval activity in the Bab el-Mandeb Strait, may become even more difficult if delays in confirmation force other leaders to take on the responsibilities of officers held up by the Senate. This hold could force senior leaders to become dual-hatted, which would force them to juggle competing priorities and sap their ability to excel.
Knowledge and Expertise
Our general and flag officers cultivate their expertise and experience over decades of service. Military units need leaders, and our Service members deserve to be led by fully confirmed general and flag officers. The failure to confirm leaders in key roles transfers strategic risk down the chain of command and forces our units to operate with less experienced decision makers in charge. By destabilizing the senior military promotion and rotation process, we put our short- and long-term readiness at significant risk.
Failure to fill these positions in a timely manner is simply irresponsible. We owe it to our Service members to provide them with the best leadership possible, and the current hold jeopardizes the continuity and effective transition of leadership.
Service Members and Families
This hold disrupts not only our most senior military leaders but their families as well. Service members and military families are resilient, but the current hold adds another layer of stress and unnecessary uncertainty.
The damage here includes not just the disruption to our most senior officers, but also profound confusion and disturbance to our rising one- and two-star general and flag officers and their families. Extended holds increase the time from selection to promotion, which could further delay promotion timelines by 12 to 24 months. This impedes not only the current cadre of officers but those in the groups behind them as well.
General officer and flag officer end strength is tightly controlled by statute. Promotion of one cadre of officers is possible only with the retirement of others. Long-term holds have a corrosive and cascading effect: they prevent our rising officers and their families from being able to predict promotion and rotation windows, which can increase the pressure to leave the military in favor of greater stability. The more our normal promotion processes are jolted, the more we risk the loss of the diverse warfighting and technical expertise that America needs to confront its 21st-century security challenges.
The current hold also means delaying or canceling permanent change of station moves--not only for those now nominated and on hold but also for numerous officers and their families who must be extended on station to prevent critical gaps. Military children will be unable to move to new schools when the next school year begins, which imposes needless additional stress on those students and their families. Military families enrolled in the Exceptional Family Member Program may endure serious delays or be unable to access the services and support that they need and deserve when they transition to their new duty stations. And outstanding military spouses may not be able to accept or start new jobs because they cannot predict when they could start. The families of our general and flag officers serve right alongside their Service members. The current hold imposes additional burdens upon our military families that are both unnecessary and unconscionable.
A Perilous Precedent
As such, the Department urges the Senate to resolve the current situation as swiftly as possible to limit these serious consequences. Never before has one Senator prevented the Department of Defense from managing its officer corps in this manner, and letting this hold continue would set a perilous precedent for our military, our security, and our country.
The ripple effects of this unprecedented and unnecessary hold are increasingly troubling. Ultimately, the breakdown of the normal flow of leadership across the Department's carefully cultivated promotion and transition system will breed uncertainty and confusion across the U.S. military. This protracted hold means uncertainty for our Service members and their families and rising disquiet from our allies and partners, at a moment when our competitors and adversaries are watching.
As public servants and officials sworn to protect and defend our Constitution, I hope that we can all acknowledge the national security risks posed by these needless delays and come together to safeguard the lethality and readiness of the most powerful fighting force in human history.
Thank you for your continued strong support for our Service members and our national security. I again urge swift action to confirm all U.S. general and flag officers.
Sincerely,
Lloyd J. Austin, III.
Ms. WARREN. I am here today to ask my colleague from Alabama to let these promotions move forward and to find other ways to continue advocating for the policy changes that he wants to see. I am hopeful that he will do the right thing and allow these servicemembers to carry out their responsibilities to our country.
In a moment, I will be asking the Senate to confirm Calendar No. 204. This nominee is a native of Pittsfield, MA. If confirmed, he would be the Navy's next sub boss, making him the most senior operational submariner in the Navy. The Submarine Force is integral to deterring our enemies and keeping America safe.
Mr. President, I ask unanimous consent that the Senate proceed to executive session to consider Calendar No. 204; that the Senate vote on the nomination without intervening action or debate; that if confirmed, the motion to reconsider be considered made and laid upon the table with no intervening action or debate; that any statements related to the nomination be printed in the Record; and that the President be immediately notified of the Senate's action.
The PRESIDING OFFICER. Is there objection?
The Senator from Alabama.
Mr. TUBERVILLE. Mr. President, in reserving the right to object, I continue to reiterate my stance and my position over the last almost 4 months now about my opposition to this policy.
Now, the burden is not on me to pass legislation to stop this illegal policy. The burden is on the administration. The burden is on the administration to stop breaking the law.
So let me just say this one more time--because I keep getting asked the same question over and over again--I will keep my hold. I will keep it on until the Pentagon follows the law or changes the law. It is that simple. Those are the two conditions that would get me to drop the hold. So, until these conditions are met, I object.
The PRESIDING OFFICER. Objection is heard.
The Senator from Massachusetts.
Ms. WARREN. Mr. President, let's be clear what is at issue here.
Servicemembers and their families don't get to decide where they serve. The policy that is at issue here allows servicemembers who need reproductive healthcare to request time to travel to receive the treatment that they need. The treatment could be an abortion, but it also could be IVF. It also could be helping a servicemember or a family member receive treatment after a miscarriage. Commanders respect a servicemember's privacy, and they don't want to be required to ask why the servicemember is taking leave. Now, I understand that the Senator from Alabama doesn't like that. He doesn't think that the Department should be facilitating certain types of reproductive healthcare in any way.
The administration--let us be clear--is not breaking the law. Chairman Reed has already gone through all of the legal precedent and the legal opinion that states that what the Department of Defense is doing is absolutely within its purview. The Department of Defense is following the law. I understand that the law could be changed, and the Senator from Alabama can advocate for the bill that he cosponsors that would ban the Department from providing paid leave or transportation to access legal reproductive care.
I think that such a policy would have a terrible impact on the privacy of our servicemembers and their families who would have to tell their commanding officers intimate details of their medical situations in order to get the time they need to seek care for things like IVF or a miscarriage. It could prevent servicemembers or their families from accessing important, legal care that would require them to travel or to take time away from work.
It would also have negative impacts on our commanders officers, who would spend less time training against our national security threats and more time asking invasive questions about their employees' health conditions or those of the employees' families.
Even so, the Senator from Alabama is free to advocate for this policy. As I have said before, the Senator does not have the votes in Congress for a bill like that. I think the Senator from Alabama knows that, which is why he has taken this radical step of opposing the swift passage of every high-level military nomination pending before the Senate.
This approach is dangerous. Many of us are frustrated by executive branch policies and actions, but that frustration is not an excuse to endanger our national security and to deprive servicemembers of the leaders they need.
The Senator from Alabama and I fundamentally disagree on the issue of abortion and on the DOD's policies, but we should all be able to agree that a blockade of the promotion of every senior member of our Nation's military creates unacceptable risks to our national security.
In a moment, I will be asking the Senate to confirm Calendar No. 192. If confirmed, this nominee would be the first female Superintendent for the Naval Academy. Of course, she is no stranger to breaking down barriers. She was also the first Hispanic woman to command a Navy warship. We are in the middle of a recruiting crisis. She is precisely the kind of leader we need to inspire our next generation to serve.
I yield to the Senator from Rhode Island. Then I will make my motion.
The PRESIDING OFFICER. The Senator from Rhode Island.
Mr. REED. Mr. President, I just want to reiterate what Senator Warren pointed out: This policy is not illegal. It has been fully justified by the Department of Justice and by interpretations of many different agencies.
In fact, one of the excruciating ironies here is that Senator Tuberville is denying promotions to general officers because he will not allow female members of the military to have some of the same protections that Federal prisoners have. If that is not absurd, I don't know what is.
Also, I have had the opportunity--really, the privilege--to serve in and command a paratrooper company. I have a lot of friends who have made careers in the U.S. military. When you get to the level of a colonel who is about to be voted brigadier general, it is a great honor. You have worked your whole life for it, and you very much want to do that, but you have family responsibilities, and you have other responsibilities. I can pretty much assure you that most people who are qualified to be a brigadier general in the Army are being courted assiduously by companies to work for several hundred thousand dollars a year.
The longer this goes on, the more demands of the family, the more the uncertainty, the more the frustration, we will lose these talented people at a moment in our history when we need the leadership to assist our allies and also to confront a very serious threat across the Indo-
Pacific region at a time when the practice of warfare is changing second by second with technology.
When you have the proponents of AI warning us this week that AI could be the catastrophic destruction of our species, well, guess where that is going to be first manifested--in the military domain, I believe. That requires leaders of character, intelligence, compassion, and dedication to democracy. Those leaders now are questioning whether they can continue because of an attempt to suggest that this is not legal, which is wrong, and, ironically, again, to take away healthcare support for women who serve in the military that we extend to Federal prisoners in this country.
I yield to the Senator from Massachusetts.
The PRESIDING OFFICER. The Senator from Massachusetts.
Ms. WARREN. Mr. President, I thank Senator Reed for underscoring the point that the Department of Defense is not breaking the law. There is legal precedence for what the Department is doing, and it has been reviewed by the Department of Justice that the Department of Defense is fully in accord with current law.
With that, I would like to go back to the nominee who would be the first female Superintendent of the Naval Academy. Mr. President, I renew my request with respect to Calendar No. 192.
The PRESIDING OFFICER. Is there objection?
The Senator from Utah.
Mr. LEE. Mr. President, reserving the right to object, let's talk about a few things.
First of all, we have heard talk of clear legal authority, clear legal precedent.
I wasn't here when the distinguished Senator from Rhode Island was providing that, but my understanding of it is that he is making the claim that there are judicial precedents for this. At least one of the cases he cited was from 1981. Significantly, that is a full 3 years before 10 U.S.C. section 1093 was even enacted into law. Talk about excruciating ironies. That was enacted into law as part of the Defense Authorization Act for Fiscal Year 1985, and it was voted on by, among others, then-Senator Joe Biden. He voted for it.
So whatever 1981 case you are citing I don't know, but I am certain that it couldn't have involved 10 U.S.C. section 1093, the very statute that we are dealing with here, because it did not yet exist.
I am equally certain that whatever personnel within the Department of Justice that blessed this, whatever lawyers within the Department of Defense that blessed this are also part of the Biden administration and are ultimately serving at the pleasure of the President. So I wouldn't expect that they would come back with an answer that he didn't want because he and his administration have made clear that this is an all-
of-government approach to make sure that the more abortions, the better, in the wake of Dobbs.
So I find it impossible to believe that any court could have addressed this particular issue, setting aside whether that 1981 judicial precedent that he cited that I haven't seen is the only one. Let's assume there were others. If there were others--there couldn't have been others even if they were decided after this was enacted into law in 1984 as part of the Defense Authorization Act for Fiscal Year 1985 because this policy didn't exist. No, this policy didn't exist until just a couple of months ago. So it couldn't have come up.
Courts don't answer these questions in the abstract. Under article III of the Constitution, the courts are empowered only to resolve cases in controversy. The case in controversy requirement of article III means that you have to have standing. To have standing, you have to have an injury, in fact, fairly traceable to the conduct of the defendant that is subject to being remedied by competent authority of a court. That would have been lacking here because until just a couple of months ago, this did not exist. They could not have addressed this. So I am not sure what authorities the Department of Justice officials to whom my colleagues are referring were relying on, but it is not a ripe controversy that could have been capably adjudicated.
But, yeah, this is truly full of excruciating ironies--the fact that the same President who voted to support 10 U.S.C. section 1093 which unmistakably makes clear that we don't want Department of Defense funding going to perform abortions. No, they rely on this argument that is reminiscent of Pinocchio in the movie Shrek 3. I think it was technically called ``Shrek the Third.'' Pinocchio, in that movie, gets away with all kinds of things by speaking in a form of legalese that would make any lawyer blush. It wouldn't be entirely untrue if I didn't say that I weren't entirely not opposed to this nonpolicy. It confuses people. That is sort of what they are doing here.
Now, look, if you want to make the argument that this is legal, first of all, I don't agree with it. This violates at least the spirit, if not also the letter, of the law. And even to the extent that it is somehow compliant with the letter of the law on a point that I am not willing to concede because this is, in fact, funding the process of getting abortions; this is, in fact, funding the endeavor of an abortion--something that we go out of our way in American law to do. This is one of the things that unite Americans of different political backgrounds, of different party affiliations.
Regardless of how you feel about abortion and under what circumstances it should or shouldn't be legal, Americans are overwhelmingly united behind the concept that we shouldn't use U.S. taxpayer dollars, thus forcing the American people at the point of a gun--because, ultimately, when you pay your taxes, you are paying at the point of a gun because, if you don't pay your taxes, people with guns are going to show up and make you pay. We don't force people, with the point of a gun, to fund abortions because we fundamentally recognize that is wrong regardless of how any individual feels about abortions themselves.
But this comparison is too cute by half. The very best I can say it is to analogize it this way: You really want to park in that handicap spot that is reserved for persons with disabilities and you are annoyed that it is there, so you park right up next to it, thus rendering it unusable space within the actual handicap spot. That is the best I can analogize this to.
To whatever extent you are complying with the letter of the law--and I don't concede that you are because I don't think you are--you are still really messing with the underlying purpose of the bill.
As to the point made moments ago by my colleague from Massachusetts--
a distinguished lawyer, a Harvard law professor herself--that this somehow is lawful because Department of Justice lawyers said it is lawful, this is the same Department of Justice that has from time to time made mistakes, and I am understating that quite significantly here. This is, in any event, a clear affront to the men and women who elected each of us.
These laws are policy changes. Yes, they saw the need for a policy change in 1984 when they adopted the National Defense Authorization Act for Fiscal Year 1985. They understood that to put that in place, they couldn't just rely on Department of Defense policy; they needed to put it in statute. So they enacted a statute to do that. This flies in the face of that. You are actively promoting, encouraging, and facilitating the performance of abortions.
Make no mistake, don't think of this as an evenhanded approach, one that aims broadly to facilitate reproductive care. No. The American people are not stupid. They cannot be fooled. We certainly must not be here. This is about Dobbs. This is about their disagreement, their fundamental rejection of Dobbs. This is about their fundamental disagreement and rejection of the notion that the U.S. Constitution doesn't give this authority over abortion to unelected judges who sit across the street in the Supreme Court of the United States. And it was never a constitutional principle to begin with. The Constitution doesn't address it. They disagree with that. I get it. But it is their disagreement about this that prompted this policy. They have been unmistakably clear about that.
Look, at the end of the day, this is a policy change. Policy changes need to be made by Congress--policy changes that involve a departure from the policy established in statute in the National Defense Authorization Act for Fiscal Year 1985, which remains legally binding and in effect to this very moment. If they want to get that changed, it is not incumbent upon those who oppose this policy to get the statute changed; it is those who want this policy to go into effect.
So I return to my long-used refrain. If Secretary Austin wants to make policy, he should run for the Senate. He can't set this kind of policy from the E-ring of the Pentagon. It is wrong.
As to the points about military readiness, look, I don't think there is anyone more concerned about military readiness than my colleague from Alabama. He sits on the Armed Services Committee. He is a faithful member of that committee. He performs his oversight responsibilities very faithfully, very conscientiously. Nobody is more concerned about military readiness than Senator Tommy Tuberville--no one. But to whatever extent this impinges upon military readiness--the fact that he has concerns with this and is therefore raising objections--that door swings both ways. If anything, it cuts stronger in the opposite direction. To the extent this is interfering with military readiness, we should set down this policy right now and allow Congress to decide this in connection with the National Defense Authorization Act for Fiscal Year 2024, which we will be turning to in the coming weeks and months. Let's let Congress decide that. In the meantime, set aside this policy--this policy that is a departure, a clear violation of at least the spirit if not also the letter of the law--and let that be decided. If, in fact, this interferes with military readiness, let's put this down and not allow American national security to be impaired by that.
Now, I don't believe we are in that position. I believe that while it is ideal for us to be able to move these nominees forward and get them moved, it is also very legitimate for a U.S. Senator to identify a problem, a simple problem arising out of the fact that the Department of Defense has a couple of things it wants to get done. It wants to get these people confirmed so that they can be promoted, and it also wants to put in place a policy. It wants to do both at the same time.
Senator Tuberville won't--in fact, Senator Tuberville can't physically--under the rules of the U.S. Senate, he cannot, he is physically unable to stop them from confirming these people. There are ways of going about it; it is just time-consuming to do it without his assent. So they want a shortcut, and they are asking for him to do them a favor--a favor that is unreciprocated--not just unreciprocated but a favor that he warned them he would not give them if they took this unfortunate step. He did that, I think, back in December. So knowing that as they did, they incurred this risk, to whatever degree.
They are right that this impacts military readiness at the expense of American national security. This is on him. He knew it would have this effect, and now he wants to force Senator Tuberville, shame him--to shame him into doing him a favor by expediting this process so that the Senate won't have to go through the additional steps that the Senate will have to go through in order to get these people confirmed without Senator Tuberville relinquishing it.
That is a shameful strategy on the Secretary of Defense, and he should be ashamed of the fact that he has become a policymaker. You can't legislate from the E-ring of the Pentagon. He has no business doing that here. He is thwarting, he is desecrating, he is disrespecting this institution and the sacred laws of our country--
passed with really good reasons--in order for him to promote his own woke policy agenda. Shame on him for doing that.
I object, Mr. President.
The PRESIDING OFFICER. The objection is heard.
The Senator from Rhode Island.
Mr. REED. Mr. President, first, anyone who suggests that the Secretary of Defense does not have a role--in fact, a responsibility--
to shape policy in the Department of Defense--it is nonsense, and I would suspect that the person has never served in the military forces of the United States.
This is a policy that the Secretary of Defense is not only legally entitled to promulgate, but is, I think, compelled to clarify the position of the Department of Defense when it comes to this Dobbs decision and its effect on the military.
Now, the gentleman from Utah did not hear my opening remarks. I did not refer to judicial decisions; I was referring to opinions--very valid opinions--of the Department of Justice, dating back to 1981.
Section 1093, which he cites, is the most significant provision of the law. What it does, it prevents funding to perform abortions and restricts the use of Department of Defense medical facilities to perform an abortion except when the life of the mother is in danger or in the case of rape or incest. I might suggest that I think my colleagues over there wouldn't even recognize that part of the law, but that is part of the law. There is no discussion of other aspects--i.e., providing transportation--and I pointed out Federal prisons provide transportation for female inmates requesting an abortion.
These are policy decisions that are reserved to the Secretary of Defense by statute, the same types of decisions he has to make every day. What are the physical standards for the troops in the U.S. military? Is that an act of Congress? No. I don't think anyone here would reasonably argue that we are the experts who should decide that and we know better than the Secretary of Defense.
There are a whole bevy of reasons, but section 1093 is the key statute, and it prevents Department funding being used for the performance of non-covered abortions. It makes no comment whatsoever in terms of any other aspects of incidental expenses.
The Department's policy is legal, as I pointed out. It is rooted in the longstanding Department of Justice interpretations of both the Hyde amendment and similar restrictions.
In fact, the Department of Defense General Counsel requested the Justice Department's views on the policy last fall because they wanted to be sure they were right before they went ahead, and they issued a lengthy and informative slip opinion, which is part of the record.
And they concluded that 10 United States Code section 1093, which my colleague from Utah continually refers to, does not prevent the Department from using appropriated funds to pay for servicemembers and their dependents to travel to obtain abortions that the Department cannot fund directly because of section 1093.
So this is not illegal. And what is contemptuous, I think, is not this debate over this policy. That is what we would do. It is ignoring years and years and years of respecting the promotion of military officers by the Department of Defense based on merit, based on their abilities, not their politics; and, for the first time, using military officers as tokens in a political game of trying to change things that they don't like, even though these policies are absolutely legal and have been confirmed by the Department of Justice and provide, I think, benefits that we provide to Federal prisoners. I would hate to see our soldiers--our female soldiers, particularly--treated any less appropriately than Federal prisoners.
So this argument is a lot of ``sturm und drang.'' I think that is the German pronunciation for it.
The policy is legal. On one other point--a sort of simple-minded point--if it is not legal, why hasn't it been challenged in court? Because it is legal.
Now, you can disagree with the policy, and many of my colleagues do. In fact, many of our colleagues have submitted legislation, and that legislation will be considered at some point. But no one has risen to the point of invoking this block of military promotions. It affects the military. It affects families. It affects our readiness. It affects our recruitment, if people look far enough down the road. And every day it continues, it does more and more damage. It is a cumulative effect. And I very, very strongly object to the continued decapitation of our military.
Let's carry this forward for 6 months or a year. We don't have a Chairman of the Joint Chiefs of Staff. I think we will because I think a majority of my colleagues will realize how important it is to have that. But it won't be done in an efficient, coordinated way. It will be objected to. It will be argued about.
The Commandant of the Marine Corps--no, we have to put this gentleman, General Smith, through the ringer. The Chief of Staff of the Army, the same thing.
We are in a situation with a tremendous pressure globally, assisting the Ukrainians in their battle; particularly, our new peer competition with China, trying to assimilate the technology that is changing the battlefield literally every second.
And now we are spending time arguing about what is within the legal authority of the Secretary of Defense and doing it by taking military officers and making them political tokens that you trade for something. I personally resent such treatment of professional officers in our military.
The PRESIDING OFFICER. The Senator from Massachusetts.
Ms. WARREN. Mr. President, the Senator from Alabama earlier claimed that the Department of Defense's policy violates the law. The Senator from Utah then made a slight shift in how he described his complaint with the Department of Defense policy. He said it violates the spirit, if not the letter, of the law, and therein lies the difference.
The law that we are talking about here is the Hyde amendment, and that is a congressional prohibition on the Federal government paying for abortions.
Let's be clear about the Department of Defense policy. Servicemembers remain personally responsible for bearing the medical cost of abortion, just like they did before the Dobbs opinion, just like they did the year before that and the year before that and the year before that, and all the way back to when the Hyde amendment was passed.
Instead, what DOD policy does is it clarifies that servicemembers who need to travel out of State to access any kind of reproductive healthcare that is not available where they are stationed can request the time off to go get that care for themselves or a family member. That is it.
That is what people in the Peace Corps can do. That is what people in Federal prisons can do. And that is what our servicemembers can do. That is not a violation of the explicit language in the Hyde amendment.
And to stand up and claim that somehow what the Department of Defense has done is violate the law is simply not to read the law. The law is clear, and the Department of Defense continues to follow it.
But there are real consequences to this argument. I understand that there are Members of the Republican Party, Members of the Senate, who would like to change that policy. They would like the Department of Defense to follow a different policy. They can try to change the law. They can introduce an amendment. In fact, they already have introduced an amendment. But, in the meantime, they cannot hold hostage the promotions of our top military leaders. This jeopardizes our national defense.
Secretary Austin's letter that I earlier entered into the Record goes into great detail about how these holds that the Senator from Alabama has put on our top military leaders create mission vacancies that
``incur an unnecessary and unprecedented degree of risk at a moment when our adversaries may seek to test our resolve.''
He goes on to explain that the holds undermine power projection abroad, which, ``diminishes our global standing as the strongest military in the world, which is in large part based on our stable processes and orderly transitions''--precisely what the Senator from Alabama is holding up.
The risks are even greater in new domains of potential conflict, and Secretary Austin does not mince words on who benefits.
Who benefits? Our Secretary of Defense identifies them: China, Russia, Iran, North Korea, and ISIS. The leaders whose nominations currently stand in purgatory are responsible, according to Secretary Austin, for ``executing strategy, acquiring new technologies, enhancing tactical effectiveness, conducting joint training, and strengthening global alliances.''
This isn't rhetoric. These are specific examples of U.S. national security interests that are endangered by these reckless holds.
I understand that the Senator from Alabama may not be persuaded by Secretary Austin's letter, but we have to face reality here. While we argue over the fact that the Republicans want to change current law under the Hyde amendment, we are endangering our national defense.
We need to move forward on the nominations that have already been approved by the servicemembers, by the White House, by our own committee. In the Senate Armed Services Committee, we need a vote so that these people can move to their next posts and do their jobs.
In a moment, I will be asking the Senate to confirm Calendar No. 199. If confirmed, this nominee would be Deputy Commander for Air Force Materiel Command, which employs nearly 86,000 military and civilian airmen and manages a $71.3 billion budget.
She is also a mama. She calls her kids the ``Three Musketeers'' and says they are the center of her universe.
These holds are the hardest on military families who are trying to figure out how to sign up for new schools, trying to establish their lives in their next deployment.
This nominee has already moved 17 times during her career, and she is now held by the Senator from Alabama, cannot move to her next deployment, cannot establish herself and her ``Three Musketeers'' and get them settled in school, and get her family in the place where they will be so that she can do her job for the American people.
We need people with decades of logistics management experience, and we need to treat them with some respect.
I renew my request with respect to Calendar No. 199.
The PRESIDING OFFICER. Is there objection?
Mr. MARSHALL. Mr. President, reserving the right to object.
The PRESIDING OFFICER. The Senator from Kansas.
Mr. MARSHALL. Mr. President, I rise today to support my friend, my colleague Senator Tommy Tuberville as he continues to do the right thing, to do justice, as he continues this fight against the radical pro-abortion policies put in place by the Defense Department earlier this year.
And I remind everybody that this is a fight the Department of Defense picked. We didn't pick this fight. They picked this fight. They are the ones who decided to change their policies to break the law.
This February 16 policy provides military personnel 3 weeks of paid leave and uses taxpayer dollars for travel expenses incurred while seeking an abortion--a clear violation of the Hyde amendment.
The policy is illegal. It violates Federal law, prohibiting funds to the DOD from being used to perform abortions except where the life of the mother is endangered, rape, or incest.
This policy takes the number of the Department of Defense abortions from less than 20 per year to an estimated 4,500 abortions.
The policy also describes abortion as reproductive healthcare. And I think that is the true issue here. You know, as an obstetrician, I am often asked two questions: When does life begin? What was the favorite part of a pregnancy for me?
I want to talk about the pregnancy for a second. I took care of hundreds, maybe thousands, of infertile couples, and, certainly, that first time when they had a pregnancy test that was positive was a great moment for me to share with them.
Four weeks after conception, we can see a baby's heartbeat on the ultrasound. That is another spectacular moment, for every couple to see that little baby's heartbeat at 4 weeks after conception.
At 12 weeks, we could hear the baby's heartbeat on a doppler. And it was one of the favorite moments for that mom and dad to hear that baby's heartbeat, as well, especially those women who had recurrent miscarriages, those who had lost life early repeatedly and, through miracles and medicines, they were able to conceive and carry that pregnancy. They get through the first trimester. They hear their baby's heartbeat. They know they are pretty much out of the woods.
One of my favorite visits came at about 15 to 16 weeks after conception. And the mom would come into my office, and I would ask her: How are you feeling?
And the nausea and vomiting are now over with, and I would ask her: Are you feeling the baby move yet?
And her eyes would light up. And she would say: Yes, Doctor. I can feel the baby move now. Isn't that incredible?
So I always loved that.
And maybe the next visit--maybe, you know, at 18, 20 weeks along--
they would come into the room, and I would examine the mom and put my hands on her abdomen. I could feel the baby's head and the baby's buttocks and maybe the limbs. And I would see the baby kind of start to move as I would kind of push on one spot. And maybe there was a little brother or sister in the room as well. And I would listen to the heartbeat. And almost every time that brother or sister would screech out: Mommy, is that my baby brother or sister?
This is at 18 weeks.
And, then, what was miraculous of all of this is that little baby, that fetus--the baby inside of the mom, the unborn baby--you could hear the heartbeat increase. You could hear it increase in intensity and the rate, recognizing this baby brother or sister's voice.
The rest of the pregnancy, you know, maybe there was another 6 or 8 visits, and they were all fun, and they were all special.
I delivered a baby almost every day of my life for 25 years, and every labor was different. It was touchy; it was hard; it was easy--all those things. We had prolapsed cords, placentas separate, women with blood pressure problems seizing. I was blessed. I never lost a mom--
never lost a mom. God blessed us and gave me the skill to get them through that.
Some labors were short, and some were long. Some lasted 30 minutes, and some lasted 2 days. Sometimes they would push for 2 minutes, and sometimes a woman would push for 3 hours. But my favorite moment of every pregnancy was delivering the baby and rubbing it down, and I would be checking its pulse and its heart rate and see if it was breathing and making sure it was dry and quietly praying to myself for this newborn baby until I heard it start crying.
The favorite moment was giving that newborn baby to that mom and just watching her and observe her and just being able to watch that total nonjudgmental love of a mom for a newborn baby.
I take it backward from there and talk about when life begins. There are those people in this Congress that, even after a baby would survive abortion, they think that baby should not be treated and cared for. Certainly, I believe life certainly begins when the baby survives an abortion, and it is past the point of viability. We should do everything we can to help that baby out.
You know, you go backward. Viability is probably 20, 21 weeks--21 weeks probably today. Does life begin at 21 weeks? If that baby was born outside the womb, would it survive? At 21 weeks, it has a chance. I think most of us certainly agree life begins then. What about 18 weeks when that baby recognizes its brother's or sister's voice or at 16 weeks when mom can feel the baby move or at 12 weeks when we can hear the heartbeat or 6 weeks when we can see the heartbeat? Well, after years of study and doing this, I just--my heart tells me life begins at conception, and no one has been able to prove me wrong. I think we have to assume life begins at conception.
That is why it is so struggling for me to hear people calling abortionists reproductive healthcare. Reproductive healthcare, to me, means helping patients who can't conceive, helping moms to have a healthy pregnancy, getting them--taking folic acid a year before they are trying to conceive, making sure they are doing everything they can to prevent spina bifida or encephalic babies, getting their sugars under control--all those things. That is what reproductive healthcare means to me, not taking the life of a baby.
Labeling abortion as ``healthcare'' is a tactic that is used to avert the radical abortion agenda. This irresponsible and unethical scheme politicizes our doctors' offices and, in almost all cases, does not improve women's health.
I am sorely disappointed in the military that I once served in, that my dad served, my uncle served, my great uncles, my mom's dad, my mom's uncle who died in World War II, my son who is now serving. I am disappointed in the military. It turned its attention and resources to terminating life.
I want to remind the Department of Defense they exist to protect the citizens of this great Nation, not to push a radical abortion agenda; that they took an oath to the Constitution to defend this country. Why are they picking this fight to end the lives of unborn babies? It is morally wrong; it is illegal; and the Pentagon needs to be held accountable.
The Biden administration has created the most politicalized Pentagon in history, destroying their own morality, destroying recruiting, destroying the readiness of our military. Unelected bureaucrats cannot ignore Congress and change the law with a memo. This policy is outside the Department of Defense's mission to uphold and fight for life, not destroy it.
I am honored to stand up here and support my colleague Senator Tuberville to fight back against this outrageous abortion policy, both in the name of protecting life and ensuring that our military uses resources to protect our homeland and our interests abroad. The policy is wrong. The DOD's policy is wrong, and until the military gets back to providing for our common defense and out of the business of providing abortions, I am proud to stand with Senator Tuberville.
Madam President, I object and yield back.
The PRESIDING OFFICER (Ms. Hassan). The objection is heard.
The Senator from Massachusetts.
Ms. WARREN. Madam President, the Department of Defense has adopted a healthcare policy that is both legal and necessary to protect the readiness of our forces. It also protects our national defense. These policies were also reviewed by the Department of Justice.
The prohibition to which my colleagues refer is the prohibition in the Hyde amendment of using Federal dollars to pay for abortions. Let me say this as clearly as I can. Under the Department of Defense's policy, servicemembers remain personally responsible for bearing the medical cost of abortion. That is true today; it was true last week; it was true the day after the Dobbs opinion; it was true the day before the Dobbs opinion; and for years, that has been the policy.
What has changed is that the DOD has clarified that servicemembers who need to travel out of State to access any kind of reproductive healthcare that is not available where they are stationed and what kind of healthcare might not be available--it might be abortion care; it might be IVF; it might be care for someone who has suffered a miscarriage--that any person who has suffered that personally or someone in their family can request time off to go get that care for themselves or for a family member. That is it. That is all we are talking about here.
Servicemembers do not get to decide where to serve. I am proud to support the DOD in saying that a change in station should not mean a change in your basic rights.
I appreciate that my colleagues have strong views on abortion. So do I. We are not going to agree on that. But all of us should be able to agree that we should not take steps that harm the people who volunteered to serve in our military; that if they need care that they cannot get in the State where they are, they should have an opportunity to go somewhere else. That is it.
There is no prohibition in law. There is no Hyde amendment violation here. Instead, what we have is wholesale holding up the nominations of more than 200 of our top military leaders who cannot advance to the posts that they have been thoroughly vetted and are ready to be promoted into, cannot advance to their duty stations, cannot settle their families in their next assignments, cannot receive the increase in their pay that they are entitled to.
So, in a moment, I will be asking the Senate to confirm Calendar No. 90. This is the person who would be America's military representative to the North Atlantic Treaty Organization but is currently being held up by the Senator from Alabama.
I will be asking for the Senate to confirm Calendar No. 94. Collectively, these are 37 nominees who have served in the Army for nearly 1,000 years.
I will be asking for the Senate to confirm Calendar No. 84. This nominee would command the Fifth Fleet, which operates in the Middle East.
I will be asking the Senate to confirm Calendar No. 49. This is the man who is the Chief of Staff for Operation Warp Speed--one of the greatest achievements of the Trump administration--to rapidly develop tests and distribute lifesaving COVID vaccines.
I will be asking the Senate to confirm Calendar No. 82. These 27 Air Force nominees have collectively served their country for more 600 years. One of them, in fact, is a NASA astronaut who received his master's degree from MIT and commanded NASA's third longest duration commercial crew mission.
I will be asking the Senate to confirm Calendar No. 47. This nominee would be Commanding General for the U.S. Army Space and Missile Defense Command and U.S. Army Forces Strategic Command.
I will be asking the Senate to confirm Calendar No. 97. Collectively, these 16 nominees have served in the Navy for more than 400 years.
I will be asking the Senate to confirm Calendar No. 46. This nominee studied at the Air War College at Maxwell Air Force Base in Alabama and currently serves as Commander of the 10th Medical Group and Command Surgeon for the U.S. Air Force Academy.
I will be asking the Senate to confirm Calendar No. 83. This nominee studied at the Squadron Officer School at Maxwell Air Force Base in Alabama and she is now capable and ready to serve as the Chief of Staff for Air Mobility Command at Scott Air Force Base in Illinois.
I will be asking the Senate to confirm Calendar No. 48. She would serve as Deputy Chief of Staff for the Army's G-4, which is responsible for the Army's strategy policy plans and programming for logistics sustainment.
I will be asking the Senate to confirm Calendar No. 50. Collectively, these two women have served in the Army for over 60 years. They deserve to be promoted.
I will be asking the Senate to confirm Calendar No. 51. This man would serve as Deputy Chief of Staff for Strategic Deterrence and Nuclear Integration for the Air Force.
I will be asking the Senate to confirm Calendar No. 52. This nominee would be the Military Deputy and Director for the Army Acquisition Corps.
I will be asking the Senate to confirm Calendar No. 86. Collectively, these 11 nominees have over 275 years of service in the Air Force.
I will be asking the Senate to confirm Calendar No. 87. These two nominees have served the Air Force for over 55 years.
I will be asking the Senate to confirm Calendar No. 88. These 10 nominees have served over 288 years. Together, they have nearly 20,000 flying hours of experience.
I will be asking the Senate to confirm Calendar No. 89. This nominee is currently commanding the largest Army command in the Caribbean.
I will be asking the Senate to confirm Calendar No. 91. This nominee is currently serving in Birmingham, AL, as Chief of Staff to the U.S. Army Reserve Deployment Support Command.
I will be asking the Senate to confirm Calendar No. 92. This nominee is currently the Director for Joint Reserve Intelligence Support Element for Europe and Eurasia for the Defense Intelligence Agency, helping to make sure that Ukraine and our allies in Europe have the critical national security information they need so that they can compete on the battlefield.
I will be asking the Senate to confirm Calendar No. 93. This nominee is currently the Deputy Commander for Support, providing security assistance to Ukraine.
I will be asking the Senate to confirm Calendar No. 95. Collectively, these eight nominees have served in the Marine Corps for over 200 years. They deserve their promotions.
I will be asking the Senate to confirm Calendar No. 96. These nominees have served in the Navy for over 55 years. Both are currently serving in the Bureau of Medicine and Surgery, making them responsible for the health and safety of our sailors, marines, and their families.
I will be asking the Senate to confirm Calendar No. 98. Collectively, these two nominees have served in the Navy for 55 years. I will be asking the Senate to confirm Calendar No. 99. These two have collectively served in the Navy for over 60 years, managing major weapons systems programs.
I will be asking the Senate to confirm Calendar No. 100. This nominee is currently serving as the Director of Health and Training at the Defense Health Agency, and he is recognized as a Diplomate of the American Board of General Dentistry.
I will be asking the Senate to confirm Calendar No. 101. This nominee will be the Commander of Naval Supply Systems Command, which makes sure the Navy has everything they need all around the world.
I will be asking the Senate to confirm Calendar No. 102. These 13 nominees collectively served in the Navy for over 400 years.
I will be asking the Senate to confirm Calendar No. 103. This nominee is currently serving as the Executive Assistant for the Director of the Defense Intelligence Agency. We need people like this.
I will be asking the Senate to confirm Calendar No. 104. These two nominees have collectively served the Navy for over 55 years, one currently serving as Information Warfare Commander.
I will be asking the Senate to confirm Calendar No. 105. These four nominees have collectively served the Navy for over 100 years.
I will be asking the Senate to confirm Calendar No. 106. These two nominees have served the Air Force for over 65 years. One of these nominees earned her nursing degree at Boston College and rose to become the chief nurse of the entire Air Force. She deserves her promotion.
I will be asking the Senate to confirm Calendar No. 107, currently serving as the Commanding General for the Marine Corps forces in Japan.
I will be asking the Senate to confirm Calendar No. 110. Collectively, these 23 nominees have over 620 years of service to the Air Force.
I will be asking the Senate to confirm Calendar No. 111. This nominee would be the Deputy Commandant for Aviation for the Marine Corps, who advises the Marine Corps top officer of all aviation matters.
I will be asking the Senate to confirm Calendar No. 205. This nominee would be the Commander of the 2nd Fleet and Joint Forces Command Norfolk--the only operational NATO command in North America, responsible for the North Atlantic and the Arctic. We need capable leaders like this.
I will be asking the Senate to confirm Calendar No. 203. This pilot has flown more than 3,000 hours in the F-16 and the F-35. We need capable people like this.
In a moment, I will be asking the Senate to confirm Calendar No. 202. This nominee will be the Director of the Naval Nuclear Propulsion Program.
I will be asking the Senate to confirm Calendar No. 201. This nominee is an experienced information warfare officer. We need him in his post.
I will be asking the Senate to confirm Calendar No. 200. This nominee is someone you can count on in a crisis. A native of San Juan, he was there to help his fellow Puerto Ricans after the earthquakes forced 7,500 people to leave their homes. He has stepped up and stepped up again for people who need him.
I will be asking the Senate to confirm Calendar No. 198. This nominee will be the Commander of Air Combat Command, which is the primary provider of air combat forces to U.S. war-fighting commands all around the world.
I will be asking the Senate to confirm Calendar No. 197. This nominee would be the Deputy Chief of Naval Operations for War-Fighting Requirements and Capabilities.
I will be asking the Senate to confirm Calendar No. 196. He will be the Deputy Commander for U.S. Central Command.
I will be asking the Senate to confirm Calendar No. 195. He has logged more than 500 carrier-assisted landings and 2,800 flight hours in tactical aircraft. We need him.
I will be asking the Senate to confirm Calendar No. 194. This nominee from Falmouth, MA, if confirmed, will be the Deputy Commander of the U.S. Fleet Forces Command, which is responsible for training and providing combat-ready Navy forces wherever combatant commanders need them, and we need him.
I will be asking the Senate to confirm Calendar No. 193. This nominee will be the Commander of Naval Surface Forces and Commander of Naval Surface Forces, U.S. Pacific Fleet, where his mission will be to make sure the Navy has every capability we need for a force that is balanced, affordable, and resilient.
I will be asking the Senate to consider Calendar No. 191. This nominee will be the Commanding General for the Marine Expeditionary Force in U.S. Marine Corps Forces Japan.
I will be asking the Senate to confirm Calendar No. 190. This nominee will be Deputy Commanding General for Futures and Concepts at Army Futures Command.
I will be asking the Senate to confirm Calendar No. 188. This nominee will be Commander of Pacific Air Forces, which integrates airspace and cyber space capabilities to keep the Indo-Pacific open and free. He has flown more than 4,000 flight hours and previously served as the Commander for U.S. Forces in Japan.
I will be asking the Senate to confirm Calendar No. 189. As a leader, she sees that our power as a nation comes from our moral strength and standing up for what we know as right. This nominee would be Pacific Air Forces Deputy Commander, making her the No. 2 for the nominee I just spoke about.
I will be asking the Senate to confirm Calendar No. 187. If confirmed, this nominee would be Deputy Commander of U.S. Forces Korea and the Commander of the 7th Air Force.
I will be asking the Senate to confirm Calendar No. 186. This nominee will be Deputy Chief of Staff for Air Force Futures, which is charged with representing the voice of tomorrow's airmen to be ready to defeat any future threats and capabilities our enemies wield. We need this person.
I will be asking the Senate to confirm Calendar No. 185. If confirmed, this nominee would be Military Deputy to the Assistant Secretary of the Air Force for Acquisition, Technology and Logistics, making him the primary military adviser for everything the Air Force buys to keep us safe.
I will be asking the Senate to confirm Calendar No. 184. This nominee took his first flight at 2 weeks old and became a command pilot with more than 2,500 flying hours.
I will be asking the Senate to confirm Calendar Nos. 182 and 183. This nominee will be the next Navy Surgeon General, making him the principal adviser to the Secretary of the Navy on medical matters.
I will be asking the Senate to confirm Calendar No. 181. During his service, he has accumulated over 5,000 flight hours and over 1,100 carrier-assisted landings. He was a Top Gun instructor and later the Commander for the Naval Aviation Warfighting Development Center. He is entitled to his promotion.
I will be asking the Senate to confirm Calendar No. 180. This nominee is also a Top Gun graduate, completing eight carrier deployments in the Western, Pacific, North Atlantic, Mediterranean, and North Arabian Seas.
I will be asking the Senate to confirm Calendar No. 112. He would be the Director of the Defense Contract Management Agency, which manages 225,000 contracts valued at more than $3\1/2\ trillion and 15,000 contractor locations worldwide.
I don't know what to say except that we have more than 200 people here who have dedicated their lives to the United States. They have volunteered for military service. They are all career. They are in it all the way. They are capable. They are talented. They serve our country. And right now, they have become the political football for the Senator from Alabama, and that is wrong.
These people deserve their promotions. They deserve to be treated with dignity and respect for the work they have put in for our Nation. It is the least we can do for them, for their families, and for the national security of the United States of America.
We need these people. We don't need to tell them we don't care about them. We need them. We need to retain them. We need to promote them. We need to use their talents.
Madam President, I renew my request with respect to each of the calendar numbers I have identified.
The PRESIDING OFFICER. Is there objection?
The Senator from Alabama.
Mr. TUBERVILLE. Reserving the right to object, my position continues to be, follow the law or change the law. For that reason, I object.
The PRESIDING OFFICER. The objection is heard.
Does the Senator from Massachusetts yield?
Ms. WARREN. I will yield to the Senator from Utah.
The PRESIDING OFFICER. The Senator from Utah.
Mr. LEE. Madam President, I want to be very clear about a couple things. No. 1, this is the law. It is not called the Hyde amendment. There is a thing called the Hyde amendment that applies elsewhere outside the military. The military, the Pentagon, has its own statutory provision. It is not the Hyde amendment; it is 10 U.S.C. section 1093, adopted in 1984 as part of the Defense Authorization Act for Fiscal Year 1985. It has been the law ever since then.
You can't use Pentagon money for this purpose, nor can you use Pentagon facilities for this purpose. Saying that you are not doing that even though you are paying people, you are giving them 3 weeks of paid leave time and paying all their travel expenses and their per diem in order to do this--that is openly flouting the spirit of the law, if not also the letter, in order to circumvent it.
I will go back to the analogy I used earlier. You go up to a parking space, thinking you want to park there, but it is a handicap space. It is reserved for people with disabilities. You don't have the disability symbol on your car, so you park next to it, but you deliberately park so close to the line that you render that spot unusable for anyone with disabilities who should need access to it. It still has the same effect because you are openly flouting the law. You are doing it in a deliberate attempt to cause the very same harms that particular law was designed to prevent.
Now, this is a policy choice, and it is a policy choice that Congress deliberately took away from the Department of Defense, deliberately took out of the hands of the Secretary of Defense. He seized that back.
Senator Tuberville saw this coming. Back in December, he told Secretary Austin in no uncertain terms: You should not do this. This is in violation of the law, and if you do this, there will be problems. I will no longer cooperate with you if you try to seek unanimous consent to facilitate the confirmation of these flag officer promotions.
He made that really clear.
Secretary Austin made his choice the moment he decided to legislate from the E-ring of the Pentagon. He took on that risk, and now he has the audacity, through surrogates in the Senate, to come back to Senator Tuberville and say: I got what I wanted. I did so in violation of the law. I am openly flouting the law--its spirit if not also the letter--
and I also want you to cooperate with me, Senator Tuberville. I want you to do what I say because that is more convenient for me.
That is not fair. That is not lawful. It is not legal. It is not kosher. It is not cool.
Look, the fact is, we could end this right now. I would love to end it right now. I can't speak for Senator Tuberville, but I have a sneaking suspicion he would let these go right now. He would let you get every one of these men and women confirmed this very moment if you take this thing off the table. But Secretary Austin took this hostage. He took all of these men and women hostage the moment he did this, having been forewarned by Senator Tuberville. He can't now be heard to come back--having waived his right to do that--to come back and demand that Senator Tuberville be somehow shamed into cooperating, into facilitating.
The other point here is, they can still get these people confirmed even without that compromise, which you could make tonight. If you put this thing off the table, you stop trying to achieve this through extortion, he will let them go right now. I am 99.99 percent sure of that, and that is pretty confident from me. He will do that right now. But even if you are not willing to do that, you could still get these people confirmed. You just don't want to do the hard work of doing it. It takes more time to do it without Senator Tuberville's full cooperation.
So, look, if you really are serious about end-strength readiness, then that is what you would do. That is what someone would do if they were worried about end-strength readiness.
Let's talk about that for a moment. End-strength readiness shouldn't be confused with flag officer promotions. It is not where we see end-
strength readiness, with flag officer promotions. It doesn't mean these men and women aren't deserving of their promotions or we wouldn't be willing and interested to see them confirmed so that they can have their promotions. But to say that it affects end-strength readiness disregards what flag officers are doing in the capacity they hold. I am not aware of any reason why that would affect our end-strength readiness, nor am I aware of any compelling reason why, without this policy--this policy that openly flouts the law--our military would suffer from an end-strength readiness problem. It is an absurd argument. In any event, it violates the law. They can't do this. It is the wrong branch of government. He doesn't have this power. He was forewarned, and he did the wrong thing anyway. We don't reward bad behavior that way. We certainly don't reward unlawful behavior.
The PRESIDING OFFICER. The Senator from Massachusetts.
Ms. WARREN. Madam President, the Senator from Utah and the Senator from Alabama have repeatedly said that the Department of Defense is somehow violating the law.
Let's pull the statute out and just take a look at it. I want to read the words into the Record.
Under part (a) Restriction on Use of Funds:
Funds available to the Department of Defense may not be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term or in a case in which the pregnancy is the result of an act of rape or incest.
Period. That is it. It does not say that funds from the Department of Defense may not be used for travel. It does not say that people may not have time off. It does not say that people may not be allowed to travel out of State. It has exactly one thing that it prohibits Federal funds from being used, and that is ``may not be used to perform abortions.''
Let me say again as clearly as I know how: The Department of Defense's rule clearly states that the servicemember will pay for her own medical services. It will not be the case that the Department of Defense will pay for abortion.
If the Senator from Utah wants to change that law, he certainly can introduce an amendment to do that. The same with the Senator from Alabama. But right now, the Department of Defense is following the law in the United States.
The Senator from Alabama's actions pose a grave threat to our national security and readiness. That is not just my view. It is the view of the Secretary of Defense and the former Secretaries of Defense serving in both Democratic and Republican administrations.
If the Senator from Alabama stays on this path, his actions will soon endanger the nomination of the next Chairman of the Joint Chiefs, an action we have never seen in the history of our Nation. We have 221 good people who have earned their promotions, who are ready to go to their next duty stations and serve their nation. They are being treated with disrespect; and this action is undermining our national defense.
I urge the Senator from Alabama to release his holds immediately and allow these senior military officers to receive the promotions that they have earned.
I yield the floor.
The PRESIDING OFFICER. The Senator from Utah.
Mr. LEE. With great respect for my friend and colleague from Massachusetts, the Pentagon itself acknowledged that while military abortions had been counted at maybe 20 or 30 per year in the past, this policy, which funds abortion--it just does--has increased to about 4,400 to maybe 4,500 a year. The causation and the number were estimated by the Pentagon itself based on this subsidy. This is a subsidy for abortion. They are, in fact, subsidizing abortion. The fact that they have engineered in a way that they think gets them around the technicalities of the law should mean very little to us as policymakers, as lawmakers, to the fact that they are openly flouting the law.
They are going through this trickery only because they don't like the law. They hate the fact that this became law, so they are trying to find a way to get around it.
They are, in fact, funding abortions. That is what you do when you pay somebody to travel, when you give them 3 weeks of paid leave to do something, when you fund their per diem--so you cover everything for them--you are funding abortion.
If the only argument you are left with is ``we are not paying for the actual surgery itself; we are just paying for everything around it,'' when the value attached to the travel, to the per diem, to the paid leave time is a significant expense--an expense that I suspect in many, if not most, instances would well outpace the cost of the medical procedure itself--that's too cute by half. They are, in fact, funding abortion. That is what this does. It is done knowing, expecting, anticipating, and desiring that this would increase the number of abortions performed in the military every year to a significant degree. That is what they are doing, and it is wrong.
The PRESIDING OFFICER. The Senator from Massachusetts.
Ms. WARREN. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
(Ms. BALDWIN assumed the Chair.)
Mr. SCHUMER. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Whitehouse). Without objection, it is so ordered.
____________________
SOURCE: Congressional Record Vol. 169, No. 93
The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
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