[Congressional Record Volume 140, Number 81 (Thursday, June 23, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: June 23, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
       NATIONAL DEFENSE AUTHORIZA- TION ACT FOR FISCAL YEAR 1995

  The PRESIDING OFFICER. The Senate will now resume consideration of S. 
2182, which the clerk will report.
  The assistant legislative clerk read as follows:

       A bill (S. 2182) to authorize appropriations for fiscal 
     year 1995 for military activities of the Department of 
     Defense, for military construction, and for defense 
     activities of the Department of Energy, to prescribe 
     personnel strengths for such fiscal year for the Armed 
     Forces, and for other purposes.

  The Senate resumed consideration of the bill.
  The PRESIDING OFFICER. The Senator from Pennsylvania [Mr. Specter], 
is recognized.
  Mr. SPECTER. Mr. President, last evening the chairman, Senator Nunn, 
and I had discussed this morning's proceedings and we had agreed that 
my amendment would be the first one, which we had hoped would be 
reached at 9:30.


                           Amendment No. 1839

(Purpose: To amend the Defense Base Closure and Realignment Act of 1990 
    to provide for judicial review of compliance with disclosure of 
            information requirements established in the act)

  Mr. SPECTER. Mr. President, I therefore send an amendment to the desk 
and ask for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Pennsylvania [Mr. Specter] proposes an 
     amendment numbered 1839.

  The amendment is as follows:

       At the appropriate place in title XXVIII of the bill, 
     insert the following:

     SEC. 28. JUDICIAL REVIEW OF REQUIREMENTS FOR DISCLOSURE OF 
                   INFORMATION BY THE SECRETARY.

       Section 2903 of the Defense Base Closure and Realignment 
     Act of 1990 (part A of title XXIX of Public Law 101-510; 10 
     U.S.C. 2687 note) is amended by adding at the end the 
     following new subsection:
       ``(f) Judicial Review.--If the Secretary transmits 
     recommendations to the Commission under subsection (c)(1), 
     any person adversely affected thereby or any member of 
     Congress may, upon a prima facie showing of not less than two 
     documentary material acts of fraudulent concealment, bring an 
     action in a district court of the United States for the 
     review of the compliance of the applicable official or entity 
     with the requirement that such official or entity make 
     available to Congress, to the Commission, and to the 
     Comptroller General all information used by or available to 
     the Secretary to prepare the recommendations.

  Mr. EXON addressed the Chair.
  The PRESIDING OFFICER. The Chair recognizes the Senator from Nebraska 
[Mr. Exon].
  Mr. EXON. Mr. President, I thank my colleague from Pennsylvania for 
offering the amendment as was agreed at or near the close of business 
as of yesterday. The Armed Services Committee has somewhat of a problem 
today with personnel because long ago, before we knew we would be 
taking up the defense authorization bill at this time, we had scheduled 
a very large, very important meeting with many witnesses for 9 o'clock 
this morning with regard to the difficult situation in Bosnia. 
Therefore we will be splitting our duties back and forth, members of 
the Armed Services Committee. We are prepared at this time to go ahead 
with any debate, whatever debate is necessary on the amendment offered 
by the Senator from Pennsylvania.
  With due respect to the Senator, and fully understanding the position 
he finds himself in, we will be forced to vigorously oppose the 
amendment being offered by the Senator from Pennsylvania for the reason 
that we feel it might overturn, upset the Base Closure Commission 
proceedings and procedures that basically are very, very difficult--but 
I think most of the Members of the Senate recognize important decisions 
had to be made.
  Therefore, I am wondering, in an effort to move this along, I will 
have two questions of the Senator.
  About how long would he feel he would wish to debate in support of 
the amendment that he has just offered? And whether or not he is going 
to ask for a rollcall vote on that amendment?
  A third part is, in consideration of the statements I have just made, 
to expedite matters could it and would it be possible to enter into a 
time agreement at this time on the Senator's amendment?
  At the end of that time the Senator from Pennsylvania could make the 
determination, as is rightfully his, as to whether he wishes a rollcall 
vote on the amendment he has offered.
  Mr. SPECTER. Mr. President, I will respond to my colleague from 
Nebraska, but I have a preparatory comment. I am a little surprised to 
hear about ``vigorous objection'' from the committee because when I 
talked to the chairman, Senator Nunn, yesterday, he had not reached a 
conclusion, and, in fact, on the floor referred me to Senator Warner 
because Senator Warner has been deeply involved in the base closure 
issues.
  I do not believe as of this moment that there has been a 
consideration--at least not to my knowledge--of the specifics of this 
amendment, which is very, very closely circumscribed. It requires 
documentary evidence. It requires confirmation by at least two sources, 
on an analogy to the high-level proof required for the conviction of 
treason under the U.S. Constitution.
  So it was my thought, perhaps hope, that there might be some chance 
that this amendment would be accepted by the managers of the bill in 
light of its very, very narrow construction.
  Until there has been an opportunity to analyze it and consider it, I 
do not know--as I said, it is a surprise to hear about ``vigorous 
opposition.''
  With respect to the handling of the amendment if it is not going to 
be accepted, it certainly would require a rollcall vote. As to the 
amount of time involved, at this juncture, I am not sure because there 
may be a number of other Senators who wish to support the amendment.
  So it is very much an open question as to how long it would take. I 
ask the distinguished Senator from Nebraska, if he is going to be 
managing this, to at least take a look at it. I certainly would want to 
have Senator Warner's input and Senator Nunn's input because I think we 
may well find an area of agreement.
  To say why, in a nutshell, the Base Closure Act has in its preamble 
to establish a fair process, and this Base Closure Act was passed by 
the Congress in 1990 after many efforts in the past, especially the 
1988 legislation. The Congress laid down a specific requirement that 
all the materials in the hands of the Department of Defense be turned 
over to the General Accounting Office so there can be an independent 
review of all the facts.
  In the case involving the Philadelphia Navy Yard, there was a 
concealment of two reports by leading admirals who said the Navy yard 
should be kept open. Those reports were concealed from the General 
Accounting Office and they were concealed from the Members of Congress, 
so that when we made our presentations to the Base Closure Commission 
at the hearing, there really was not a hearing because we did not have 
the evidence.
  The matter has been through the courts, which I will discuss later, 
perhaps at some appropriate length, where the Court of Appeals for the 
Third Circuit handed down two decisions saying that there should be 
judicial review of this sort of a matter.
  When the case got to the Supreme Court of the United States, they 
said there was no direct statement by Congress on the issue of judicial 
review, but they declined to undertake that judicial review.
  When this matter was considered after the work of the Base Closure 
Commission was completed at a hearing of a subcommittee, chaired by 
then Senator Alan Dixon, Senator Dixon heard the concerns which I have 
now raised about this documentary evidence and said: ``Well, that is a 
matter for the courts,'' Senator Specter. He said, this subcommittee 
cannot take up the matter. Of course, I am prepared to document the 
transcripts as to what Senator Dixon said on that.
  When Senator Dixon said the subcommittee could not take the matter 
up, we followed his suggestion and went to the courts. When the courts 
said Congress did not give us jurisdiction to consider this matter, now 
we are back in the Congress.
  I think that the Congress certainly would not want to approve of acts 
by the Department of the Navy which are fraudulent. That is a strong 
word but that is the fact of the matter, because there were two reports 
by ranking admirals who knew this subject who said the yard should be 
kept open.
  I can appreciate the comments of the distinguished Senator from 
Nebraska who expressed concern about opening up the process of the Base 
Closure Commission, but I do not think this will do that. It is very, 
very narrow and, to the extent this kind of conduct is undertaken by 
the Department of Navy, it seems to me a rather clear matter that we 
would not want to countenance or approve such conduct. We would not at 
the same time want to open up the whole process, but there is a way of 
keeping the process restricted and still allowing the narrow opening 
for remedying this kind of very flagrant misconduct by the Department 
of the Navy.
  Mr. EXON. Mr. President, I appreciate the remarks by my colleague 
from Pennsylvania. I will say to my colleague from Pennsylvania that 
with all that has been going on, I had not had a chance to discuss this 
matter to any extent with Senator Nunn. However, I have worked very 
closely with him and other members of the Armed Services Committee all 
through the painful base closure process.
  I will talk to Senator Nunn about this. From what I am advised, there 
is very little, if any, chance that the committee, including the 
chairman, is likely to agree to accept the amendment offered by the 
Senator from Pennsylvania for these briefly stated reasons:
  The base closure process, as all know, has been a painful one, and 
many communities have been upset, justifiably so, by losing the 
economic benefit of many important military facilities.
  However, in the view of this Senator, the amendment offered by the 
Senator from Pennsylvania would gut the basic premise of the Base 
Closure Commission that to date, with all of its warts, has served the 
intent of the Base Closure Commission that originally was proposed by 
former Secretary of Defense Frank Carlucci to a group of us on the 
Armed Services Committee several years ago.
  Secretary Carlucci's thought was--and I think it was a good one--that 
there is no way we can make closure and reduction of unnecessary 
expenditures in a military budget unless we had a base closure 
commission that would hold hearings on and make determinations of the 
priorities for closing the bases after consultation, of course, with 
the Department of Defense.
  It seems to me that I believe we can sum up the position of the 
amendment offered by the Senator from Pennsylvania, that it would gut 
the key features of the Base Closure Commission legislation which says 
that the Base Closure Commission will hold hearings and make a study 
and make a report to the President as to when bases should be closed 
and during what periods.
  The President then has the option of reviewing this, and the 
President must choose the recommendations of the commission, all or 
nothing, without changes.
  Likewise then, after the President has made that determination, the 
matter is forwarded to the Congress and the Congress finds themselves, 
under the law in effect, of doing the same thing that the President has 
done. They cannot amend, they cannot say this base will remain open and 
these others will be closed. It is all or nothing, as far as the 
Congress is also concerned.
  Basically, as I understand the amendment, stripping away all of the 
rhetoric, if it is fair to say, I say to the Senator from Pennsylvania, 
that his amendment, if it would become law, would, in essence, allow 
the courts on a petition from any community, any individual, any 
Senator, to cherry pick, if you will, from the list of recommendations 
by the commission approved by the President and supposedly approved by 
the Congress.
  Is it not true then that the Specter amendment is another way, with 
the aggressive effort that the Senator from Pennsylvania has been 
pursuing it--and I do not fault him for that--through the Supreme Court 
and other means that to date have failed, basically is it not true, I 
ask the Senator from Pennsylvania, if his amendment would become law, 
in essence, would it not allow Pennsylvania or any other entity to 
bring a petition of some type before an appropriate court and allow the 
court to cherry pick and make the decisions notwithstanding all of the 
recommendations of the Commission, the action by the President, and the 
actions of the Congress?
  Mr. SPECTER. Mr. President, I shall be glad to respond to the 
question of the Senator from Nebraska, but first let me take slight 
issue with his use of the term ``aggressive.''
  I do not think my conduct has been aggressive at all. I think it has 
been very modulated in the face of dishonesty by the Department of the 
Navy when they represent that they have turned over all the information 
and in fact they have committed fraud, have concealed information; in 
the face of that charge, they duck and evade.
  It is a very modest response to say to the Secretary of Defense and 
the Secretary of the Navy, how can you undertake that sort of dishonest 
conduct? And when there is not an appropriate response, to take it to 
the Armed Services Committee, chaired by then Senator Dixon, and raise 
the issue. It is on the record. He said, ``We can't handle this; it has 
to go to court.'' Then it is very modulated to go to court and say, in 
America, we do not tolerate dishonesty by anyone, especially the 
Government. So I would say that what I have done so far certainly is 
not aggressive at all.
  Mr. EXON. If the Senator will yield for a minute, I did not intend to 
make the Senator from Pennsylvania an aggressor. I complimented the 
Senator from Pennsylvania on his actions thus far. If I were similarly 
situated to him, I might be doing exactly the same thing.
  So if the Senator took from my comments any criticism of the actions 
that he has taken as being overly aggressive, I think I did not say 
that. And if I did, I apologize and take back the words. It may be that 
the Senator did not hear exactly what I said. I was simply saying that 
I recognize the position that the Senator is in. But I do not believe 
there is any real chance that the committee at least, or the committee 
leadership of the Armed Services Committee would agree to this 
amendment.
  Then I went on to ask the question as to what was the basic thrust of 
the Senator's amendment. I hope he can answer that question. But I 
would simply say that I have not indicated, nor do I feel, any 
inappropriate action whatsoever by the Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I thank my colleague for those remarks. I 
thought I heard the word ``aggressive.'' Perhaps I was wrong. But I 
think if the Department of the Air Force sought to close Offutt Air 
Force Base and concealed from Senator Exon documents from Air Force 
generals who said the Air Force base should be kept open--I have known 
Senator Exon now 14 years--if they concealed documentary evidence 
Offutt Air Force Base should be kept open, I would expect at least some 
response from my distinguished colleague.
  But to answer his question: Would this amendment allow the Federal 
courts to ``cherry pick,'' the answer is no. And the reason that it 
would not allow the courts to cherry pick is that it sets a very high 
standard to permit judicial review. It requires documentary evidence 
which has been concealed, and it requires at least two instances of 
documentary evidence, of material fraudulent concealment.
  There have been some 310 base closures and realignments so far, and I 
know of only three cases which have gone to court. I do not believe 
that either of the other two cases has the kind of documentary evidence 
which is involved with the Philadelphia Navy Yard. But I would say this 
to my colleague from Nebraska and to all those listening, my colleagues 
who I hope will follow this debate, because it is a very important 
question, that this is a level of conduct which we simply cannot 
countenance.
  I have been very distressed as I have seen what has happened with the 
Navy, and I am just going to talk about the Navy--there is a lot more 
in the rest of the Government--what happened with the battleship Iowa, 
on turret 2--47 sailors killed, and false reports as to the cause of 
that blast--I am very much concerned, as well, about the cheating 
incident at the Naval Academy and the coverup, very much concerned 
about the recent disclosures about favoritism for the son of the 
Secretary of the Navy. We had a contested case about Admiral Kelso and 
his four stars. The admiral prevailed on a relatively close vote, more 
than 40 Senators, I think 43, voted no in a context where a military 
judge had filed a 49-page, single-spaced report with evidence 
implicating Admiral Kelso in what went on in Tailhook, and the 
inspector general said that there was no credible evidence when the 
record was full of credible evidence.
  We have in the U.S. Congress, constitutionally, very, very serious 
oversight responsibilities. I think my colleague from Nebraska will 
agree that it is not possible for us to do the kind of oversight we 
would like to do because we have so many responsibilities. But there 
are some items which the Congress simply cannot take up, as Senator 
Dixon could not take up the question about this concealment when I 
brought it to his attention sitting in a subcommittee of the Armed 
Services Committee. He said to me take it to the courts, which is what 
I did.
  So I would say, I would have a question for my colleague from 
Nebraska. Actually, I have two questions. Let me pose them one at a 
time. The first question is--and I do not expect the Senator to have 
evidence as to how many cases there would be of fraudulent concealment 
of two documents by ranking admirals who are experts in the field, but 
does the Senator have any reason to think that with that level of proof 
required, which copies the constitutional provision of at least two 
witnesses in cases of treason, that there would be any avalanche to the 
courts to enable the courts to cherry pick what the Commission has 
done?
  Mr. EXON. Mr. President, I will be glad to answer the question posed 
by the Senator from Pennsylvania.
  First, let me go back and correct any improper allegations that were 
not made by the Senator.
  I am advised by my staff that I did use the word ``aggressive.'' I 
used the word ``aggressive'' in the context of complimenting the 
Senator from Pennsylvania with regard to his aggressive activities in 
protecting what he feels is a very important naval facility in his 
State. I did not intend that in any context that it was wrong. I think 
the Senator from Pennsylvania would be the first to concede that I have 
certainly never known him, not in 14 years but for 16 years now, to be 
violent. The Senator from Pennsylvania is a very skilled, very 
experienced attorney going way back to the Kennedy assassination era, 
and I recognize and admire him for his talents.
  With regard to the question the Senator has simply posed, the answer 
is no. Neither the Armed Services Committee nor any member of that 
committee are a part of--in fact, just the opposite is true. We have 
been investigating and have brought forth certain actions by the U.S. 
Navy top officials, and we have taken what we thought was appropriate 
action to correct them.
  I hope that with the Senator's amendment, we are not going to place 
the U.S. Navy, though, on trial here on the floor of the U.S. Senate 
with regard to the amendment offered by the Senator from Pennsylvania.
  I would simply point out that it was the Armed Services Committee, 
under its oversight responsibility, which has checked thoroughly, has 
held extensive hearings and, in the opinion of this Senator, has taken 
appropriate action on a whole series of matters involving the U.S. 
Navy.
  It may not be well known to the Senator from Pennsylvania, but when 
some of the Navy brass mishandled the first big event, it was this 
Senator from Nebraska who pointed out that he simply did not believe 
the Navy's findings that the tragedy on the U.S.S. Iowa could be blamed 
on homosexual activity, or the allegations that were made that that 
whole tragedy was not the fault of the Navy, that it was not an 
accident; that it was somehow an attempt by two enlisted Navy people 
that were alleged to have had some homosexual conduct. That really was 
never proven. Certainly, it was later disproven; that is, the findings 
of high officials in the U.S. Navy with regard to the pending 
responsibility in the tragedy on the U.S.S. Iowa was, that they were 
somehow free from any fault or responsibility of the top brass of the 
Navy.
  I would agree with the Senator from Pennsylvania that in recent days, 
with a whole series of unfortunate incidents, some of the leadership of 
the U.S. Navy has at best not performed up to the standards that many 
of us would like to see.
  But to carry that so far as to say that the closure of any one base 
in the State of Pennsylvania or elsewhere was done, conceived, as a 
part of some kind of a Naval coverup or withholding of information I 
think is stretching the point on any problems that we might have had 
with the leadership of the U.S. Navy.
  I appreciate the Senator's explanation of what his amendment does. 
And we can put in whatever window dressing or clothing we want. 
Basically, in the opinion of this Senator, the amendment offered by the 
Senator from Pennsylvania would gut the basic essence of the Base 
Closure Commission.
  I am not necessarily for nor am I against the facility in 
Pennsylvania that the Senator from Pennsylvania feels is critical to 
our national defense.
  I have not made a thorough investigation of that particular matter. 
But I do say, and I do believe, that matter is behind us. It has been 
so designated. The courts have refused to overturn it. It might well be 
that some people would agree with the Senator from Pennsylvania that 
this was a case that was so egregious that we must take action on the 
floor of the U.S. Senate, since the Senator from Pennsylvania and 
others were unsuccessful in trying to overturn this through the courts.
  I would simply point to the recent decision by the Supreme Court in 
this matter that was adverse to the interests of those who would like 
to keep the Philadelphia Naval Facility open.
  I guess then, probably, we have outlined the differences of opinion 
on the amendment. I would simply say to the Senator from Pennsylvania 
that I have nothing particularly further to say on this matter. If he 
does, of course, we would be glad to listen.
  There are hopefully other amendments. I say to the Senator from 
Pennsylvania that it is the hope and the desire of the leadership of 
the Senate and the Armed Services Committee that we stay here tonight 
as late as necessary to complete this, if we can. If not, we are 
encouraging the majority leader to hold the Senate in session as long 
as is necessary tomorrow, Friday, to accomplish this because of other 
important matters; basically, appropriations bills that are stacked up 
behind the defense authorization bill.
  So I would simply say, is it possible that the Senator might agree to 
proceed at this time with any further remarks or discussions that he 
has on his amendment, which I would say is entirely in order from a 
procedural position. I think that is why Senator Nunn did agree, in the 
interest of the Senator from Pennsylvania last night, that this would 
be the first matter taken up. I suggest, though, that as the Senator 
has said, there may be other Senators who wish to come and speak in 
behalf of and in support of the amendment of the Senator from 
Pennsylvania. Likewise, I am confident that there are many who will 
oppose this amendment who would like to come forth and do so.
  The situation we are facing right now, though, is that maybe we could 
go ahead with other matters, if the Senator from Pennsylvania will 
agree at an appropriate time to temporarily set aside his amendment so 
that we might hopefully proceed with other business, to move along. 
Because I see a period of a major logjam that is going to take hours 
and hours and make it most difficult for us to complete action on the 
defense authorization bill in a timely manner.
  Mr. SPECTER addressed the Chair.
  The PRESIDING OFFICER (Mr. Campbell). The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I thank the Senator from Nebraska for his 
comments.
  The first of two questions which I had directed to the Senator from 
Nebraska related to his argument earlier about cherry picking. I had 
asked him a question as to what evidence --if not evidence, 
indicators--he had or the committee had that there would be any rush on 
the courts with a standard for judicial review, which was as high as is 
provided for by this amendment.
  There have been, to repeat, some 310 proceedings under base closures 
and realignments. As I understand it, only three cases were brought to 
court, and the other two do not match the standard here. I asked him 
that question. I did not hear anything about it in his reply. But let 
me pick up on a couple other matters which he commented about.
  When he says that the Senator from Pennsylvania has been unsuccessful 
in keeping the Philadelphia Navy Yard open, the Senator from 
Pennsylvania has not even had a chance to address the merits of that 
question, because the Federal courts have said they would not hear the 
case. The Federal courts have said that they would not hear the case 
because the Congress did not provide for judicial review. When the 
matter was before the Armed Services Subcommittee, the presiding 
Senator, Senator Dixon of Illinois, said this is a matter for the 
courts; it is not a matter for the Senate. Which is why we went to the 
courts.
  So when the Senator from Nebraska says there has been an unsuccessful 
effort to have the Philadelphia Navy Yard kept open, this statement is 
not really on target. We have not even been able to present the 
arguments about it.
  I do not propose to discuss today the reasons why I think the 
Philadelphia Navy Yard should be kept open, because the question that I 
put to this body was much more narrow and a more limited question; and 
that is, should there be judicial review so the courts can decide 
whether or not there has been fundamental fairness? Then it is a matter 
for the Base Closure Commission, under the law, to make a decision as 
to whether the Navy Yard should be kept open.

  The Philadelphia Navy Yard never had a ghost of a chance to present 
the merits, when the Navy concealed two documents signed by high-
ranking admirals that the yard should be kept open. That is what never 
happened.
  I, again, address the first two questions to the Senator from 
Nebraska, if he cares to answer them: How many cases does he think 
there are where the Navy has kept two documents by ranking officers and 
concealed it from the parties in interest? How many cases are there 
that lead him to make the assertion that there will be cherry picking 
or an open floodgate of litigation in the Federal courts? I direct 
those questions to him.
  Mr. EXON. Mr. President, I will try and answer the questions that I 
think are legitimate ones from the Senator from Pennsylvania, a very 
skilled lawyer who basically is trying to place the courts in a 
position, in one way or another, of overriding the actions of the Base 
Closure Commission, the President of the United States, and the 
Congress.
  There is one thing that I think we generally agree to here in the 
Congress of the United States, both in the House and the Senate--that 
there has been far too much intervention in the courts. There are 
supposedly three equal branches of Government: executive, legislative 
and the judiciary. I happen to feel, as a nonlawyer, that there has 
been a whole series of instances where I think the judicial branch has 
overstepped its authority. Yet, of a latter date, there has been some 
indication that the courts are not overreaching as much as they once 
did.
  I simply say that I do not know how many cases there are, obviously. 
And I think the Senator from Pennsylvania knows very well that I would 
not be in a position to know in how many such instances there has been 
of a coverup of information. I simply say that if we start down that 
road, then we are going to be back on that highway, the superhighway of 
the populace feeling that there is somehow a conspiracy about almost 
everything that happens today in the United States of America, 
including most of the actions that are taking place in the Congress of 
the United States. I reject that.
  So I think that the Senator from Pennsylvania is doing a very 
professional, lawyerlike job of creating the conspiracy theory as to 
why he thinks the courts should be allowed to intervene not only in the 
case of the naval yard in Philadelphia, but also any other Base Closure 
Commission. I simply say that if the Senator's amendment is passed, I 
think we would open up a Pandora's box to every community that has a 
base closed. They could come forth citing the amendment offered by the 
Senator from Pennsylvania and passed by the Senate and the Congress as 
a means to delay, if not to eliminate the base closure, which is 
absolutely essential if we are ever going to make the tricky dollars 
that we have on defense do what defense is supposed to do, which is to 
provide for the legitimate national security interests of the United 
States.
  I yield the floor.
  Mr. GLENN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Ohio [Mr. Glenn] is 
recognized.
  Mr. GLENN. Mr. President, I would like to make a couple of comments 
on this. I appreciate the views of the Senator from Pennsylvania. 
Obviously, no one wants fraud to be involved in a process like this. 
And there has to be a remedy for that. The Senator from Pennsylvania 
has taken the course that there should be a judicial review. I think it 
would be the demise of our whole base closure process if that were to 
go through. What community would not find something they claim 
fraudulent and put it into a court case, with the stipulation that the 
closing of the base be delayed until the final resolution in the 
courts?
  The whole process would obviously come to a screeching halt. As 
Justice Souter noted in his concurring opinion in Dalton versus 
Specter:

       This mandate for prompt acceptance or rejection of the 
     entire package of base closings can only represent a 
     considered allocation of authority between the Executive and 
     Legislative Branches to reach important, but politically 
     difficult, objectives * * *. If judicial review could 
     eliminate one base from a package the political resolution 
     embodied in that package would be destroyed * * *. The very 
     reasons that led Congress by this enactment to bind its hands 
     from untying a package, once assembled, go far to persuade me 
     that Congress did not mean the courts to have any such power 
     through judicial review.

  That is Justice Souter's view on this. That does not take away, 
however, my agreement with the Senator from Pennsylvania that there 
should be means to address fraudulent behavior, and that is what his 
legislation talks about in the fifth and sixth lines, the third line up 
from the bottom of the page of his amendment--the copy of it I have, at 
least.
  It says:

       * * * a prima facie showing of not less than two 
     documentary material acts of fraudulent concealment * * *.

  I agree that where there is fraudulent concealment, there has to be a 
remedy for that. But I also submit that we should not take the whole 
process and untie it by putting us into a judicial review process, 
because I believe we already have a way of looking at this and taking 
care of fraudulent concealment. Fraud is not conducted by some great 
body called ``the Pentagon,'' or whatever. Fraudulent concealment is by 
individuals. Someone has to decide that he or she is going to 
fraudulently conceal something. Fraud is illegal right now under the 
Uniform Code of Military Justice--if it is a military member that we 
are talking about. Or under the criminal code, if a member of the civil 
service fraudulently conceals, then that person can be charged with 
such concealment.
  The IG's, that I have a lot of faith in, are doing a good job, and it 
seems to me that a course in some situations, such as the one in which 
the Senator from Pennsylvania found himself, is to ask the IG's to look 
into it immediately. And, second, in whatever area of the country was 
involved, if there was fraudulent concealment, which is what his 
amendment deals with, fraudulent concealment, then a case would lie 
certainly against the member of the military through the Uniform Code 
of Military Justice, or against a civil service member through the 
criminal code, or against anyone else representing or acting on behalf 
of the Government, such as the BRAC closure commission; it would lie 
against them as representatives of the Government if they fraudulently 
concealed. So I think we do have that remedy, without knocking out the 
whole BRAC process.
  The reason the BRAC process was set up to begin with was because 
Congress had, for many years, been unable to deal with the base closure 
process, and this was put together as a package--a ``take it or leave 
it'' type package. I do not think anybody--and certainly I would not 
advocate that if there is evidence of fraudulent concealment, that it 
should not be dealt with. I do not see why it has to go through a 
Federal court process when you can file a suit against a member of the 
military through the UCMJ, or you could file a suit against a civil 
servant, or somebody representing the Government, through the regular 
criminal code that does already cover fraudulent concealment in any 
situation like this.
  I agree with my colleague, Senator Exon, who felt that this would 
undo the whole BRAC process, which we had so much difficulty putting 
together. And it was only put together after many years of 
ineffectually trying to close bases around the country. It is a process 
that proved contentious, obviously because no one wants to have bases 
closed in their area. I do not like what happened in some places in 
Ohio. The Senator from Pennsylvania does not like what happened in 
Philadelphia. The Senators from California, as we are well aware from 
their testimony on the floor, feel they have taken too many hits out 
there. No one likes to see these things happen in their home area.
  Where there is fraud--fraud entered into part of this--it seems to me 
that that there is a remedy already there to address this through the 
UCMJ and the criminal code, and perhaps using the inspector general to 
investigate this.
  There is one other factor here. If we put this back into the court 
for judicial review, you, in effect, are taking the judicial branch of 
Government and saying they will make the final determinations on what 
the military alignment of bases, the strategic locations of bases, 
should be around this country. And they would be deciding that by just 
the narrow consideration of whether fraud occurred. Major bases might 
or might not be kept open or closed on a basis quite apart from what 
the military needs of the United States are. I would not want to see 
that be tossed over into the judicial branch. They may have an interest 
in it, but they certainly are not qualified, I believe, to make those 
judgments.
  So I believe that the legal remedy that the Senator from Pennsylvania 
seeks is there in the processes we have now with UCMJ and with the 
criminal code, the U.S. Criminal Code.
  Those were not explored in this particular case. The Senator from 
Pennsylvania had every right to take his cause to the Supreme Court. 
They turned it down on the basis that Congress had put together this 
package and they did not want to get into destroying that package, and 
I agree with their decision on that.
  Did the Senator from Pennsylvania consider going to the IG's? Did he 
consider going through the UCMJ, the Uniform Code of Military Justice 
to address a problem of fraudulent concealment, the words out of his 
amendment? Or did he go to the United States Code where fraudulent 
concealment, which happens by individuals--not just by some great case 
against the Pentagon, but individuals--had to be involved? And 
individuals could have a suit filed against them either under UCMJ or 
under the regular United States Code.
  It would seem to me that that provides a remedy that is adequate 
without undoing the whole BRAC process, which is what this basically 
would do.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. SPECTER. Mr. President, I think the Senator from Ohio has made a 
very important statement. It is really a concession when he says where 
there is a fraudulent concealment, there must be a remedy.
  That is my point. Where there is fraudulent concealment, there must 
be a remedy.
  When the Senator from Ohio suggests a remedy in a suit against 
someone in the military or a civilian, that does not remedy the problem 
of the closure of the Philadelphia Navy Yard.
  I am not unaware of how to proceed on a criminal complaint for fraud. 
I know how to do that. But if I put someone in jail for fraud, which I 
have done, it is not a remedy for the Philadelphia Navy Yard. It is not 
a remedy for the importance of the yard to national defense or a remedy 
for the thousands of people who are thrown out of work.
  Now, when the Senator from Ohio asks me have I asked the inspector 
general to look into it, I have asked everybody in the chain of command 
up to the Secretary of Defense, and that is Secretary of Defense Perry 
and that is Secretary of Defense Cheney, and the Secretaries of the 
Navy. The inspector general specifically has not been asked, but I have 
the question pending before the Secretary of Defense. But the inspector 
general lives in America. He knows of the controversy concerning the 
closure of the Philadelphia Navy Yard. There is hardly anybody who does 
not. And I asked the Secretary of Defense most recently in a letter 
which I sent to him on May 24, 1994, which I ask unanimous consent be 
printed in the Record so I do not have to read the whole letter.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                                      U.S. Senate,


                                  Committee on Appropriations,

                                     Washington, DC, May 24, 1994.
     Hon. William J. Perry,
     Secretary of Defense,
     Washington, DC.
       Dear Secretary Perry: I ask that you personally review at 
     least limited aspects of the conduct of the Department of the 
     Navy on the recommendation to close the Philadelphia Naval 
     Shipyard.
       When I met with you in advance of your confirmation as 
     Secretary of Defense, you advised me that you would not 
     tolerate any misrepresentations or concealments by anyone in 
     the Department of Defense. I did not pursue the issue on the 
     Philadelphia Naval Shipyard since the matter was in 
     litigation and it was, at that time, a matter for the 
     lawyers.
       When the Supreme Court of the United States ruled that the 
     federal courts had no jurisdiction to review what the 
     Department of the Navy did on the Philadelphia Naval 
     Shipyard, the Court did not reach the merits of the case. I 
     ask that you reach the merits of the case in accordance with 
     the principles which you stated to me since those 
     misrepresentations and concealments still stand.
       I enclose with this letter, two reports, one from Admiral 
     Claman and one from Admiral Hekman, which were withheld from 
     the GAO and Congress in violation of the Base Closing Act.
       This is only the tip of the iceberg.
       I submit that this documentary, undisputable evidence is 
     sufficient on its face to have the Base Closing Commission 
     reconsider its decision to close the Philadelphia Naval 
     Shipyard.
       I ask that you agree to have the Base Closing Commission 
     reconsider its decision on the Philadelphia Naval Shipyard in 
     the 1995 round so that there may be compliance with the Base 
     Closing Act.
           Sincerely,
                                                    Arlen Specter.

  Mr. SPECTER. Mr. President, when the Secretary of Defense wanted 
consideration from this Senator, he got it within 24 hours. He came to 
my office when his nomination was pending, and I saw him very promptly. 
I did not talk to him about the details of the navy yard case because 
it was pending in court. He said to me that there would not be fraud on 
his watch. I did not ask him to take action because it was in court.
  When the court said the courts do not have the authority to review 
it, it is a matter for congressional authorization to review it, that 
was that.
  Then I wrote to him on May 24 and I said to him:

       When I met with you in advance of your confirmation as 
     Secretary of Defense, you advised me you would not tolerate 
     any misrepresentations or concealments by anyone in the 
     Department of Defense. I did not pursue the issue at the 
     Philadelphia Naval Shipyard since the matter was in 
     litigation. It was at that time a matter for the lawyers.

  When the Supreme Court of the United States ruled that the Federal 
courts had no jurisdiction to review what the Navy did on the shipyard, 
the courts did not reach the merits of the case, I asked that you reach 
the merits of the case in accordance with the principles which you 
stated to me, since those misrepresentations and concealments still 
stand. As yet, I have not gotten any answer to that, just as I haven't 
gotten any answer from the Navy for 3 years on the merits of this case.
  When the Senator from Ohio says that this is going to affect the 
force structure, I say this respectfully because I know the Senator 
from Ohio is a real expert on military matters; I have deferred to him 
privately and I have deferred to him publicly and I do that again 
today.
  I do not think the courts ought to review military matters, and in 
the lawsuit I specifically accepted the force structure promise behind 
the base closure process, and I wanted to make this as emphatic as I 
can. I am not asking the courts to decide whether the navy yard should 
be kept opened or closed. That is a matter for the Base Closure 
Commission.
  What I am asking the courts to decide is whether the Philadelphia 
Navy Yard received fairness under the act which requires full 
disclosure. Courts are not equipped to make military decisions. Courts 
are uniquely equipped to make a decision as to whether the procedures 
of the act have been complied with. Was there fraudulent concealment by 
the Navy? That is what the court is designed to do.
  If the court says, yes, there was, then our request for relief was 
for the court to say to the Base Closure Commission, ``You have to give 
these folks fairness and look at these two reports.''
  I would ask the Senator from Ohio the same question I raised 
earlier--he is on his feet and wants to ask me a question and I will be 
glad to respond. I appreciate the comment by the Senator from Nebraska 
that he did not know how many cases would be involved if this amendment 
were passed, but I submit that it is pretty important to know that if 
you are going to say there is going to be cherry picking or a flood of 
litigation.
  I submit to my colleagues that if you have the standard for a treason 
conviction under the Constitution of two witnesses, and require that it 
be documented, that is a very high standard, and it would be a very 
unique case and perhaps sui generis, perhaps only one. But I ask my 
colleague from Ohio this question: There are letters in the Navy files 
from Admiral Hexman dated December 19, 1990, which says ``It is more 
appropriate to downsize the Philadelphia Naval Shipyard instead of 
closing it.'' You have a letter dated March 15, 1991, again from 
Admiral Hexman, and there is another letter from Admiral Claman in the 
files saying the yard should be kept open.
  Is it not necessary in our system of justice and plain fairness that 
a defense base such as a navy yard not be closed if this kind of 
documentary evidence is not presented to the Commission and presented 
so that when Senators like Senator Glenn goes in for Ohio, or Arlen 
Specter goes in for Pennsylvania, we can present this and at least have 
it considered? If the Commission says close the yards fairly, so be it. 
But does not basic fairness require that the remedy go to what happens 
to the shipyard as opposed to the prosecution of some individual?
  Mr. GLENN. Mr. President, I am glad to respond to the Senator from 
Pennsylvania, because I think what he is talking about are specifics of 
the recommendations of one or more admirals in the Pentagon. That is 
part of an information gathering process of opinions by a great number 
of people, among whom those couple of admirals may have had a different 
opinion than the collective wisdom of the whole base closure process. 
Perhaps they are not aware of some other alignment that is going to be 
made, or whatever. No one or two people in the Pentagon have a lock on 
what the Base Closure Commission is to consider and to decide.
  I agree that the letters probably should have been considered. But is 
it fraudulent that the Base Closure Commission did not agree with those 
two admirals? I do not believe it is.
  What the Senator tries to address with his amendment is fraudulent 
concealment. That was the purpose of the Supreme Court case.
  I am reading from the syllabus of Secretary of the Navy Dalton. It 
says:

       The act was seeking to enjoin the Secretary of Defense from 
     carrying out the President's decision pursuant to the 1990 
     act to close the Philadelphia Naval Shipyard.

  So that was the purpose of it. It was to just stop the closing of the 
shipyard.
  I am certain the Senator from Pennsylvania will say, well, he did 
that because he thought there had been fraudulent concealment before 
that. If there is fraudulent concealment, it can be brought as a charge 
under UCMJ or it could be brought under the United States Code against 
those representing the Government of the United States, whether a 
temporary Base Closure Commission or civil servants working for the 
United States.
  I do not see, still, why that is not a remedy.
  I asked a little while ago if there had been a request made directly 
to the IG, and there was not a direct response to that. But I would 
point out that the IG is an independent assessor of activities over 
there that we may have a question about. They are not in the direct 
chain of command over there. The IG Act, which I was responsible for 
helping put into place--in fact, the expansion of it was my 
legislation--we had a 10-year experience with it. We very deliberately 
wrote that act with responsibilities to the Congress, as well as to the 
agencies that those IG's are part of.
  So they are to take an independent role in making these assessments 
as to whether actions of the Department they represent are fair or not 
fair, whether they are being carried out correctly or not correctly. 
And the IG's have exhibited a rather fierce independence through the 
years in making those judgments because they know their 
responsibilities come both to the Congress and to the agency that they 
work for.
  So it seems to me that an IG inspection, or whatever information is 
developed privately by the Senator from Pennsylvania, or whomever in 
whatever other case, could be properly brought before the UCMJ and/or 
the criminal code for others if, as he has in his amendment, there is 
fraudulent concealment.
  Now, that does not mean if information comes out, as he has indicated 
in the letters that were in the files over there, that they are going 
to prevail, because BRAC closures are a collective wisdom of that whole 
board, and I would doubt very much that the letters from a couple of 
admirals who may have liked the Philadelphia yard and may have had a 
good case, some good reasoning there, I do not see any reason why we 
would automatically think the Philadelphia Naval Yard, had those 
letters been made part of the BRAC closure process--there are many 
people involved, many opinions in the BRAC closure process--I think to 
toss this whole thing back into the Federal courts when there are 
already remedies in the UCMJ or the criminal code, and the 
investigative capabilities of the IG can be brought to bear. To toss 
the whole BRAC closure out, which it seems to me is a step in the 
direction we are going, it seems to me would be unwise for the Senator 
to take.
  Mr. SPECTER addressed the Chair.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, responding directly to what the Senator 
from Ohio has said, I am not representing that the Philadelphia Navy 
Yard would automatically have been kept open by the Base Closure 
Commission if these letters had been considered by the Base Closure 
Commission. But at least there would have been a chance. It would have 
been the most powerful evidence available for those of us who appeared 
on behalf of Philadelphia Navy Yard.
  The Senator from Ohio said he is not happy with things that were done 
in Ohio. I can understand that.
  The process was for Senators to appear before the Commission.
  I referred to the letters from Admiral Hexman. There is an additional 
letter from Adm. J.C. Claman recommending that the Philadelphia Navy 
Yard be drawn down to a small size activity in the mid-1990's, the 
thrust of it being that the yard be kept open.
  So there is no representation by me that automatically, as the 
Senator from Ohio says, the yard would have been kept open. But at 
least all of the evidence would have been considered.
  I think there was at least a possibility that, with a very close 
question, as appeared before the Base Closure Commission, a very close 
question, if we had had these letters available to us to say to the 
Commission, ``Commissioners, the two admirals who know the most about 
this in the Pentagon say the base ought to be kept open. Aren't we 
entitled to have that considered by the Base Closure Commission?''
  That is what we are asking for. That is what we asked for when we 
said to the court: Let us submit this evidence to the Base Closure 
Commission.
  We are not asking the court to keep the yard open. We are asking the 
Federal court to send this matter back to the Base Closure Commission 
with an opportunity for us to be heard in accordance with the fair 
process required by the act to consider all of the evidence.
  The Senator from Ohio comes back again to the inspector general. I 
had not wanted to get into the matter in any detail, but I am going to.
  I do not think it is necessary, when a Senator deals with the 
Secretary of Defense, to have to go to the inspector general.
  But let me say to you very bluntly, Senator Glenn, I do not have any 
confidence in the inspector general of the Department of Defense. The 
reason I do not have any confidence in the inspector general of the 
Department of Defense was when he wrote a letter saying there was no 
credible evidence as to Admiral Kelso in the face of a 49-page report 
from a military judge which detailed evidence as to Admiral Kelso. I 
just do not have any confidence in him.
  I believe that when I deal with the Secretary of Defense and I send 
the Secretary of Defense a letter and ask him to look into this matter 
and do not get a reply, and when I have dealt with the Secretary of 
Defense under the prior administration and have detailed this evidence, 
and have taken the matter up for hearings, that the Department of 
Defense has had a full opportunity to face up to this kind of a 
question.
  When the Senator from Nebraska was dealing with the Battleship Iowa a 
few minutes ago, he made a very good point. He said his committee was 
dissatisfied with what the Navy did, claiming that it was a homosexual 
which caused the explosion in the deaths of 47 sailors. The Armed 
Services Committee looked into it and found out what the facts were, 
and did a good job of oversight. I think that is the kind of oversight 
that is necessary.
  That is why I brought the Armed Services Committee my complaints 
about this fraudulent concealment. I was told to go to court. I went to 
court, and one court, the third circuit, said, ``You're right, Arlen 
Specter. You have a right to go to the court.'' The Supreme Court said 
no, because the Congress had not authorized judicial review.
  Now I am back to the Congress. I am back to the Congress and I am 
saying, is this fair? Is it an adequate remedy to prosecute individuals 
or to sue individuals, as Senator Glenn says, under the UCMJ or the 
United States Code? Absolutely not. What does that do? That is a 
conviction, and somebody may go to jail. That is not a remedy.
  Mr. GLENN. Will the Senator yield on that point for just a minute?
  Mr. SPECTER. I will.
  Mr. GLENN. Because I was saying, if that occurs, then you have a very 
good cause to bring that back to the attention of the Congress, and 
Congress can reverse this. Or you can bring it back to the BRAC Closure 
Commission, and they could say, ``Yes, we were misled on this,'' and we 
could undo that.
  So there is a remedy in this case if fraud--which is what you are 
dealing with here, fraudulent behavior--if that is proven. So there is 
recourse back here. We have the final approval over this.
  If I knew fraudulent behavior had gone into a decision on a 
particular case, I would be the first to vote to overturn that 
particular decision until it can be further reviewed. So we do have 
recourse in this. It is not as though it is all final.

  And just one other thing. I think we are mixing up apples and oranges 
here on the IG's, because--the Senator mentioned the Iowa? I believe 
that was the Naval Investigative Service that looked into that, and 
also a separate board of inquiry that was involved with that. The IG 
was not directly involved with the Iowa investigation at all, I do not 
believe.
  Mr. SPECTER. The reference, if I may say to the Senator from Ohio, to 
the inspector general was not regarding the Iowa. The reference to the 
inspector general concerned Admiral Kelso. We had the 49-page single-
spaced report from the military judge detailing evidence as to Admiral 
Kelso and you had a short report from the inspector general saying 
there was no credible evidence. A fantastic, remarkable, astounding, 
unreal conclusion by the inspector general. So pardon me if I do not 
take the case there.
  But back to the first point the Senator from Ohio made when he asked 
me to yield--and I was glad to do that. I think it is good to do it 
because we get to the basic point.
  The basic point is this: If Senator Glenn wants proof of fraud, why 
do I have to go to court and get a criminal conviction in order to 
prove fraud when he can read three letters--two from Admiral Hexman and 
one from Admiral Claman--read three letters that were concealed that 
said the yard ought to be kept open. If you dispute that is fraudulent 
concealment I will listen to that. If you dispute that I did not have a 
chance to argue it, that it was not before the Base Closure Commission, 
I will listen to that. If you say that some inappropriate agency is 
going to make the decision when I concede it goes to the Commission, 
the Base Closure Commission, and not the court--the court's narrow 
function under this amendment is to review the case and make a factual 
determination of whether there was fraudulent concealment that was 
material and rises to the level of two documents.
  If Senator Glenn is prepared to deal with fraud, deal with this.
  Mr. GLENN. Will the Senator yield?
  Mr. SPECTER. I do.
  Mr. GLENN. I ask, the Philadelphia Navy Yard was designated for 
closing in the 1991 Commission, is that correct?
  Mr. SPECTER. That is correct.
  Mr. GLENN. If this fraudulent material was there, why was this not 
brought before the 1993 Commission for reconsideration and reversal? I 
am sure they would be happy to deal with it. Was that attempted?
  Mr. SPECTER. We brought this matter to the Base Closure Commission 
before 1993. This matter was brought to the Base Closing Commission.
  Mr. GLENN. Which one, the 1991 Commission or the 1993? Because the 
1993 Commission could have reviewed this whole thing--over again.
  Mr. SPECTER. So could the 1991 Commission, after it was closed and 
after we found this evidence.
  Senator Glenn--the Commission had this evidence. The Commissioners 
were named defendants in the case. The 1993 BRAC Commission was the 
same as the 1991 BRAC Commission and they were all parties defendant to 
the case and they did not lift a finger. When they were told about this 
fraud they looked the other way. They defend themselves in court by 
saying the court does not have jurisdiction. They have never looked at 
the facts.
  Mr. GLENN. The fact that there were different opinions by some of the 
people in the Navy Department does not mean that there was necessarily 
fraud by the Commission. Or that fraud was permitted by the Commission.
  Mr. SPECTER. I am not saying, I say to Senator Glenn, that there was 
fraud by the Commission. I am saying that the fraud was committed by 
the Department of the Navy and the Department of Defense. And the fraud 
was committed when the statute specifically says, ``all materials to be 
turned over to the General Accounting Office,'' and ``all the materials 
to be turned over to the Base Closure Commission so that Members of 
Congress can review it before the hearing''--that material was not 
turned over.
  Is my colleague, Senator Glenn, saying that if three letters say the 
Navy yard should be kept open, and they are concealed, that that is not 
fraud?
  Mr. GLENN. If it is fraud--I do not know whether it was fraud or not. 
But I am saying if there is fraud and that is the charge then it should 
be brought to the attention of the IG first, I think. And then, if it 
is fraud, then that could be charged and brought under UCMJ, or under 
the United States Code.
  I do not plan to go on with this. I know the Senator from Nebraska 
wants to make another statement here. But let me just make one thing 
clear and give you my views on this.
  I think there are remedies existing now for dealing with fraudulent 
behavior, which is what the amendment addresses. And so everyone is 
very clear about this, it would be my opinion that if this went through 
and if this was made law, then it would be the end of the BRAC process 
as we know it, which was set up after so many tortuous years of being 
unable to deal with this base closure process.
  I have no doubt that if this amendment went through and became law 
this would be the end of the BRAC process. I think it is that serious, 
what we are considering here this morning. I think there is an adequate 
way of taking care of fraudulent behavior and I think it is in law 
right now. I hope everybody listening back in the offices, when it 
comes to a vote on this--I do not see how you can look at this any way 
but that it would be the end of the BRAC process. Because it would be a 
rare city that would not find something they could charge was 
fraudulent, put this into the Federal courts, and hold up the whole 
process. I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I am at a little bit of a loss to hear my 
colleague from Ohio say he does not know whether it was fraud or not. 
You have flat statements, three documents that the yard should be kept 
open. It is certainly material. They are concealed from the General 
Accounting Office. I am a little at a loss to understand how he says he 
does not know whether it is fraud or not.
  Mr. GLENN. At a loss? It is this.
  There are many documents that are brought or not brought to the 
attention of the Base Closure Commission. And the judgment of the 
Commission is in the totality of this. Did this fraud, which is claimed 
by the Senator from Pennsylvania, decide this case? I doubt that it 
did. Some admirals saying--I am sure almost any base to be closed can 
find some general, some admiral, who expresses an opinion that he 
thinks that is wrong and that particular base should be kept open. But 
that does not mean there is fraud involved because we have some 
differing opinion, whether it is brought to light to the Base Closure 
Commission or not.
  Mr. SPECTER. I would say to my colleague from Ohio that generals and 
admirals may say a lot of things. And it is up to the Base Closure 
Commission to sift through them--a lot of documents, a lot of opinions, 
and a lot of judgments. But the act of Congress said all the material, 
all the material should be made available to the General Accounting 
Office and then to the Congress. And it is inconceivable to me how 
anybody can look at these three letters without saying that this is 
material and that this is fraud.
  But, let me go one step further and say to the Senator from Ohio, 
this amendment does not ask the Senate to decide that this is 
fraudulent concealment. This amendment asks the Senate to allow a court 
to look at this evidence and say whether it is fraudulent concealment. 
In the course of our discussions here today we do not do what a court 
does, in terms of the analysis of fraudulent concealment, although I 
think on its face these letters demonstrate fraudulent concealment. And 
when the Senator from Ohio goes on and says this is going to destroy 
the base closing process, I would ask him--if I may have his 
attention--I would ask him the question I asked the Senator from 
Nebraska.
  I understand he does not have a lot of details and a lot of facts at 
his disposal. It is a judgment call. The Senator made the assertion 
this amendment would destroy the closing process. There are 310 base 
closures and realignments, as I understand the facts. And only 3 
lawsuits have been brought. I do not believe the other two lawsuits 
involve evidence of fraud at this level.
  In seeking to open judicial review, I have done so on as narrow an 
ambit as I can devise. I have taken the constitutional provisions on 
treason, the most serious crimes at the time of the adoption of the 
Constitution. It requires two witnesses. And I have required that it be 
documentary evidence, not what somebody heard in a corridor or somebody 
testifies on oral evidence and might get into a ``who struck John,'' 
who said what. The requirement is documentary evidence and at least two 
levels of documentary evidence. I would even make it three.
  But the question for the Senator from Ohio is how many cases are 
there like this? Is there going to be a flood of litigation? Is there 
going to be an opportunity for the Federal courts to cherry pick?
  Mr. GLENN. I have no way of knowing how many cases there would be, 
obviously. Nor do I think the Senator from Nebraska has any idea how 
many cases there would be. We have no way of knowing.
  But I would submit, if you give a judicial review it is going to be a 
rare community that has concern about a base that does not find some 
papers somewhere that did not come to light at the proper time. They 
are going to claim that was critical. And they are going to file suit. 
And so the execution of the closure will not take place.
  So that is the reason why I think the BRAC closure process would come 
to a screeching halt. We found it difficult to deal with this. It was 
impossible. This process was put forward. I think if there is fraud, 
the fraud was committed by an individual or a collection of 
individuals. If the case is there, file a suit under the United States 
Code right now, fraud against the Government. Or under UCMJ. It covers 
fraud also. So there is recourse right now. It is not as though we do 
not have recourse. It does not have to close up the whole BRAC closure 
process.
  Mr. EXON addressed the Chair.
  Mr. SPECTER. Mr. President, I believe I still have the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania has the floor.
  Mr. SPECTER. Mr. President, when the Senator from Ohio says that 
communities are going to find evidence, I think that is just not so. 
You do not pick documentary evidence out of the air. You just do not 
pick documentary evidence, fraudulent concealment of material 
information out of the air.
  Mr. GLENN. Will the Senator yield? Why did he not just file suit 
under UCMJ or civil service? Why does he not still do that to this day?
  Mr. SPECTER. Because----
  Mr. EXON. Mr. President, point of order. I ask the Parliamentarian to 
make a ruling as to who has the floor. We have not been following 
proper procedures under the rule.
  Therefore, as the individual occupying the majority leader's chair, I 
do not wish to cut off debate. But I certainly feel that maybe under 
the rules I seek recognition and the right of the floor at this time.
  The PRESIDING OFFICER. The Senator from Pennsylvania still retains 
the floor but may yield to questions.
  Mr. SPECTER. I thank the Chair.
  In response to the comment made by the Senator from Ohio, there are 
two comments pending. One comment is why have I not started suit under 
the UCMJ. Because it does not get me the remedy that I seek. It does 
not do me any good to put somebody in jail for fraud and then to wait 
all that time--and that process could take years--come back and face 
the same kind of arguments I raise here.
  When the Senator from Ohio made a key concession, where there is 
fraudulent concealment, there must be a remedy, that I agree with. But 
it is hardly a remedy to sue an individual. A remedy is to deal with 
the closing of the Philadelphia Navy Yard.
  When the Senator from Ohio raises the point, as I was about to finish 
when he last raised another question, about communities finding 
something to go to court with, I think he is wrong about that. It is 
not easy to find documentary evidence which says the yard should be 
kept open by a ranking admiral. It is not easy to find a second letter 
from a ranking admiral who says that or a third letter from a ranking 
admiral who says that. But let me add this, Mr. President: That if this 
is the way of the Department of Defense and communities can find 
documentary evidence of fraudulent concealment, then that ought to be 
acted upon.
  If this body is going to say to the Department of Defense, the 
Philadelphia Navy Yard, in the light of what happens in Government, the 
kind of concealment that we have talked about here today with the 
battleship Iowa, the Academy cheating scandal, the son of the Secretary 
of the Navy, or Tailhook, and the hard facts of this case where we have 
documentary evidence about fraud, if this body is going to say that it 
intends to, in effect, sanction that by precluding the courts from 
judicial review, then so be it.
  There has never been a consideration of this case on the merits by 
Secretary Cheney, who was Secretary of Defense, or by Secretary Perry, 
who is now Secretary of Defense, or by the Armed Services Committee, or 
when I took it to the subcommittee with Senator Dixon who said go to 
court, or by the Supreme Court of the United States which said it is up 
to the Congress to grant jurisdiction--we do not think the Congress has 
done it--or by the distinguished Third Circuit Court of Appeals which 
twice said that there ought to be review, not of force structure, not 
of military matters, but of procedures.
  If my colleagues in the U.S. Senate are going to say to me that the 
courts are not open for this kind of fraud and that we are going to put 
the imprimatur of the Senate behind it, I will watch a rollcall vote.
  I yield the floor.
  Mr. EXON addressed the Chair.
  The PRESIDING OFFICER (Mr. Pryor). The Senator from Nebraska.
  Mr. EXON. Mr. President, it seems to me that we have had a good 
discussion. It is becoming redundant because the same phrases are being 
used over and over again in the attempt of each side to proceed with 
explaining their position. I hope that we are about ready to come to a 
conclusion on debate on this matter.
  I will simply say that I maintain the position that I made when we 
began this debate; and that is, regardless of the merits or demerits of 
the amendment offered by the Senator from Pennsylvania, if this was 
ever to become the law of the land, there is no question but what every 
community in the United States of America would find some reason to 
delay or stop the closure of any base. That would be a disaster, I 
suggest, given the diminishing resources to provide for the real 
national defense of the United States of America.
  To move things along, I know that the distinguished Senator from 
South Carolina, the ranking member of the Armed Services Committee, and 
the chairman of the Armed Services Committee both would like to be 
heard on this matter.
  I ask unanimous consent that the Senator from South Carolina be next 
recognized by the Chair, followed by the Senator from Georgia.
  Mr. SPECTER. I object.
  Mr. EXON. I yield the floor.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from Nebraska has yielded the floor.
  Mr. THURMOND addressed the Chair.
  The PRESIDING OFFICER. The Senator from South Carolina is recognized.
  Mr. THURMOND. Mr. President, I rise in opposition to this amendment. 
If closing bases was easy business, there would be no Base Realignment 
and Closure Commission. It is an extremely difficult task and there are 
always people who are unhappy and who lose a great deal because of the 
closing of military installations.
  South Carolina knows that to be true, as well as many other States in 
the Union.
  Charleston was hurt badly by what the Base Commission did. Charleston 
had been a Navy town for a 100 years and they wiped out everything down 
there with the Navy, practically. But, on the other hand, how are you 
going to handle this thing?
  But providing for judicial intervention in the procedure is not the 
answer. It will only create additional problems.
  My reasons for opposing this amendment are: First, litigation brings 
false hopes, expense, and it delays community readjustment.
  Next, the Base Realignment and Closure Commission's effectiveness is 
totally dependent on the all or nothing acceptance of its results. 
Lawsuits would promote fragmentation of these results. Material 
provided to the Commission is also provided to GAO and Members of 
Congress. This provides sufficient review of the military departments' 
submissions and provides sufficient opportunity to determine the 
validity of the material.
  This amendment would create a significant problem and solve nothing.
  I urge my colleagues to oppose this amendment.
  Mr. NUNN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. NUNN. Mr. President, I know there has been a good debate. I 
regret I have not been able to be here for the entire debate. I thank 
the Senator from Nebraska, the Senator from Ohio, and the Senator from 
South Carolina for representing the Armed Services Committee position 
on this bill. I know the Senator from Pennsylvania feels very strongly 
on this point, and I understand his point. I have to respectfully 
disagree.
  There is not a weapons system that has ever been canceled that you 
cannot find some general or admiral who wanted to keep it. There is not 
any kind of weapon that goes out of business because it is outmoded 
that you cannot find a general or admiral who wants to keep it. And the 
same thing for military bases. You are always going to have some 
general or some admiral or some officer or somebody who has said 
somewhere that a base should not be closed.
  The services have to weigh all of that, if they know about it. 
Sometimes they do; sometimes they do not. Then they have to make their 
recommendation to the Secretary of Defense. He has to make his 
recommendation to the President. The President has to make his 
recommendations to the Congress. And then we have to decide on the 
issue.
  I know that where there has been any kind of deliberate withholding 
of information that is tantamount to fraud, and as the Senator from 
Ohio has pointed out, those kinds of offenses are punishable under the 
Uniform Code of Military Justice. If a military officer or other people 
subject to the Uniform Code of Military Justice have deliberately 
withheld information, committed fraud or committed any kind of false 
testimony, then those are punishable offenses.
  But what we on the Armed Services Committee do not want to do is to 
see judicial review take place on the Base Closure Commission because 
we know that every community will do their very best to find some bit 
of misleading information, whether intentional or unintentional, and 
label it fraud and go to court and then the courts are going to be 
struggling, first, to try to determine whether there is fraud and, 
second, what to do about it after they determine it.
  If you find two pieces of information that have been withheld under 
the amendment we now have pending, and the court then determines it 
might have been deliberate, then no matter what the overall weight of 
evidence is, the court could overturn that. And if it overturned it for 
one base, then the rationale of the Base Closure Commission can come 
unwound as to other bases.
  So that is the reason we did not have judicial review. If there was a 
base in Arkansas that there were two bits of information, or two pieces 
of information that were not considered at the appropriate time and 
later it was determined by some court of law in a judicial review that 
that information was pertinent and relevant and should have been 
considered, then the base that was closed in Arkansas could be reversed 
and be pending and then a base closure somewhere else might make no 
sense at all, or base realignment somewhere else might make no sense at 
all. So in an effort to achieve perfect justice here, we would be 
basically exposing the whole base closing process to coming unwound.
  Having been here long enough to know that there is never anything 
that is considered a closed question in Washington, including a weapons 
system that is canceled or a base that is closed, we would be involved 
in this over and over and over again, and we would be back where we 
were before we ever decided to go with the Base Closure Commission, 
which is the only way we are going to be able to close military bases.
  No one wants to close military bases. No one enjoys telling a 
community they are going to lose personnel from the Department of 
Defense, whether it is a closure or realignment. I know that very well. 
But I also know what happens if we do not close military bases.
  What happens is that we keep infrastructure which is not needed, and 
we end up having to cut either force structure or readiness or we 
sacrifice the modernization of the force. So this is not a free ride. 
We cannot keep bases open that are not needed and not pay a very big 
price in terms of military preparedness. The way the system works, the 
price is not paid immediately because you do not save money immediately 
in base closure. But what we do now will affect the kind of money we 
spend in infrastructure in 5 years, 6 years, 7 years, 8 years, 9 years, 
10 years. So what we are doing right now in terms of closing military 
bases, as painful as it is, has a very big effect on military 
preparedness for 5 to 10 years.
  For all those reasons, with great respect for the Senator from 
Pennsylvania--and I do not know anyone who wages a more effective 
battle than he does in these areas; he is a very forceful advocate, and 
I will always listen very carefully to his position, but in this case I 
must respectfully disagree and urge that the amendment be defeated. I 
hope we could vote on it as soon as the Senator from Pennsylvania feels 
he has completed his case, and I hope that would be in the next few 
minutes because we do have two other amendments that are awaiting 
presentation that are also very important.
  I thank the Chair.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER. The Senator from Pennsylvania I believe sought 
recognition.
  Mr. SPECTER. While the Senator from Georgia is in the Chamber, if I 
may have the attention of the Senator from Georgia, there are a couple 
of issues I would like to discuss very briefly, and I am about ready to 
vote, as I stated to the Senator from Georgia informally on the floor a 
few minutes ago.
  When the Senator from Georgia raises the contention that you cannot 
let the courts get involved in a closure because that might upset the 
whole string of interrelated closures, I think the Senator from Georgia 
does understand my point, but I would like his comment about it, that I 
am not asking the court to decide what base to close and what base to 
leave open. I am asking the court to make a decision as to whether 
there has been fraud so that the matter ought to go back to the Base 
Closure Commission, and the Commission would hear the evidence which 
was concealed, and the Commission would then make a decision. So the 
Commission keeps in mind all of the factors involved and on the whole 
sequence of base closures. I ask that question of my colleague.
  Mr. NUNN. I do understand the distinction, and I think the Senator's 
point is one that is pertinent to the consideration. The problem is the 
time element. The whole Base Closure Commission has been set up on a 
very compressed time element. We have x number of days to decide in the 
Congress. The Secretary of Defense has to appoint a Base Closure 
Commission, I believe, by January 20 or 22. If he does not, and if that 
is not submitted to Congress by then, there is no Base Closure 
Commission at all. Therefore, all the statutes that are waived here are 
applicable. The President has so many days to review the consideration. 
Then Congress has so many days to review it after that.
  So what happens is if you get a court intervening in the middle of 
all of this, the whole time schedule is compromised and makes it 
unworkable. I think everyone has to realize that bases can be closed 
more than one way. Bases can theoretically be closed without a Base 
Closure Commission, and that way the Congress has to approve it every 
step of the way. And there are all sorts of statutes that are set up in 
law that make that extremely difficult. That is the reason we have not 
had bases closed.
  So this Commission concept that is the subject of this amendment is 
an extraordinary procedure because we had extraordinary difficulty in 
dealing with base closings under the existing law with all sorts of 
impediments.
  So I would say to the Senator, the Senator's point is basically 
correct but the time schedule makes that in my view compromising to the 
effectiveness of the base closing concept.
  Mr. EXON addressed the Chair.
  Mr. SPECTER. The second point I want to discuss with my colleague 
from----
  The PRESIDING OFFICER. The Senator from Pennsylvania asked permission 
to ask a question to the Senator from Georgia. The Senator from Georgia 
has responded to the question.
  The Senator from Pennsylvania actually lost the floor when he 
propounded the question to the Senator from Georgia. The Senator from 
Georgia has responded to the question.
  Mr. SPECTER addressed the Chair.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I ask unanimous consent that I may 
propound another question to the Senator from Georgia. It does not take 
long to----
  The PRESIDING OFFICER. Does the Senator intend to propound that 
question and lose his right to the floor?
  Mr. SPECTER. Well, I will ask unanimous consent that I might propound 
a question to the Senator from Georgia without losing the right. I 
understand the rule that someone else may intervene----
  The PRESIDING OFFICER. The Chair asks, is there objection to the 
unanimous-consent request?
  Mr. EXON. What is the unanimous-consent request?
  The PRESIDING OFFICER. The Senator from Pennsylvania has asked a 
unanimous-consent request that he may be allowed to ask an additional 
question to the Senator from Georgia.
  Mr. SPECTER. Without losing my right to the floor.
  The PRESIDING OFFICER. Without losing his right to the floor.
  Mr. EXON. If there would be no objection to that, then that would 
waive the right of this Senator to claim the floor under the rules, 
which I have been attempting to do on two or three occasions?
  The PRESIDING OFFICER. While the question is being asked and until 
the answer is given to the Senator from Pennsylvania, the Senator from 
Nebraska is correct.
  Mr. EXON. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. SPECTER. Mr. President, I believe I have the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania had the floor.
  Mr. SPECTER. I thank the Chair.
  Mr. EXON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Nebraska is recognized.
  Mr. EXON. Mr. President, none of us wishes to be difficult on this 
matter. We have been on this now for 2 hours. We have other amendments 
that are equally, if not more, important to dispose of. I have listened 
very intently for the last hour and 15 minutes, and I have not heard 
one single iota of new or informative information entered into on 
debate on either side of this issue.
  It seems to me that about 9:30 or 9:40 o'clock tonight there are 
going to be all kinds of----
  Mr. SPECTER. Parliamentary inquiry, Mr. President: Do I not have the 
floor?
  Mr. EXON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Nebraska has been recognized. 
The Senator from Nebraska has the floor.
  Mr. SPECTER. Parliamentary inquiry, Mr. President.
  The PRESIDING OFFICER. The Senator will state his inquiry.
  Mr. SPECTER. Did not the Chair just rule that I had the floor before 
the Senator from Nebraska interceded?
  The PRESIDING OFFICER. The Senator from Nebraska has been recognized, 
and it is the opinion of the Chair that the Senator from Nebraska at 
this time has the floor. The Senator from Pennsylvania has lost the 
floor. The Senator from Nebraska has the floor.
  Mr. EXON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Nebraska.
  Mr. EXON. Mr. President, in order to ensure the Senator from 
Pennsylvania that the Senator from Nebraska or no one else is trying to 
cut him off, what we are trying to do is to move this bill along.
  As I was saying, at 9:30 or 10 or 11 o'clock tonight there are going 
to be all kinds of Senators coming to whoever occupies this Chair and 
say, why does it take us so long to dispose of these important matters? 
Why are we called upon to interrupt what are our normal business hours 
in debate into the middle of the night? It is for reasons like this.
  It seems to me that a good case has been made for his position by the 
Senator from Pennsylvania. I think those of us who oppose that 
amendment reasonably and strongly believe we have made our case. I am 
wondering at this time, to move this along, if I could ask a question 
of the Senator from Pennsylvania without losing my right to the floor, 
as to whether or not, in the interest of moving this along and coming 
to a vote, recognizing the fact that we would have the option, if we 
could dispose of this at this time to move to table which would cut off 
all debate.
  I would like to inquire of the Senator from Pennsylvania, without 
losing my right to the floor, as to whether or not he would be 
interested in coming to some kind of a time agreement at this time of a 
reasonable timeframe so we could bring debate to a close and move to a 
vote on the matter, if that is his desire, either by a tabling motion 
here or an up-or-down vote.
  I ask that without losing my right to the floor.
  The PRESIDING OFFICER. Is there objection to the request of the 
Senator from Nebraska? The Chair hearing no objection, the Senator from 
Nebraska will pose the question without losing the right to the floor.
  Mr. EXON. Could I have a response of my friend from Pennsylvania?
  Mr. SPECTER. I would be glad to respond, Mr. President. And I would 
be glad to say that the Senator from Nebraska does not have to make a 
unanimous-consent request on matters like that, that I am not going to 
raise an objection as to who has the right to the floor, whether the 
question is asked by someone who does not have the floor, or whether 
the question is asked by someone who has the floor.
  I must say that I disagree with him very categorically when he says 
that nothing new has been raised, and when he makes any suggestion that 
this Senator has been dilatory, or that any undue time has been taken 
up by the Senate.
  I was here promptly at 9:30 to undertake this debate. I was the only 
Senator on the floor. I conferred with the manager of this bill, 
Senator Nunn, in advance of this bill coming to the floor last week, 
and yesterday. And told him what I intended to do, so that I could 
cooperate.
  I was on the floor yesterday. The Senator from Georgia is nodding 
yes. I was on the floor yesterday evening talking to the Senator from 
Georgia and the majority leader. And I was agreeable to being here at 9 
o'clock. If they said 8 o'clock or 7 o'clock, I would have been here. 
When I am asked to be here, I am here on time. I do not think I am 
wasting any time. Maybe I am wasting a little right now.
  I also think this is a matter of really great importance. We have not 
been quite 2 hours on this matter, and we have propounded some really 
important questions. I would hate to show the Senator from Nebraska 
what the law firm of Dillworth, Paxson, Kalish & Kaufman has done in 
Philadelphia with more than $1 million in pro bono work, and what this 
Senator has done by way of preparation of this case in working on it, 
in the course of less than 2 hours. This is a drop in the bucket.
  We happen to be on something which is a lot more important than the 
Philadelphia Navy Yard. We happen to be on a subject about the conduct 
of the Department of Defense, and the conduct of the Department of 
Defense in concealment. The long, laborious process by the Congress in 
coming to terms on the Base Closure Act, which goes back to the 
sixties, carefully crafted, required that all the evidence be put 
forward so that people have a chance to see what the Department of the 
Navy is doing.
  I have no doubt about the outcome of this debate, Mr. President, with 
the arraying on the other side, and with the concerns about unraveling 
the process, which I think is unfounded because no one has been able to 
make any generalization, let alone a firm representation of a flood of 
litigation or cherry picking here.
  For a moment or two, I had decided to speak at length. But I am not 
going to do that.
  I just would like to ask the Senator from Georgia one final question, 
and then maybe sum up in just a few minutes.
  The PRESIDING OFFICER. The Senator from Pennsylvania was recognized 
to answer a question propounded by the Senator from Nebraska.
  The Senator from Nebraska.
  Mr. EXON. Mr. President, I am not sure my question was answered. But 
I think I got the thrust of the answer to the question from the 
statement that the Senator from Pennsylvania just made.
  Let me correct the Senator once again. I think that when he indicated 
that I said there had been repetitious and dilatory statements, that 
was not any criticism of Senator from Pennsylvania. That was a 
criticism of the general debate on both sides of the aisle. Somebody 
can read the transcript for the last hour and make their own judgment 
as to whether or not people have been talking by, through, or at each 
other without making any essential points.
  I take it that there is not going to be any time agreement. I speak 
for a great number of Senators who feel that we should move to a vote 
on this as quickly as possible. Therefore, I would ask again of my 
colleague and friend from Pennsylvania, putting in no caveat this time 
about losing my right to the floor, by asking him: Does he believe that 
he could agree to a vote in a reasonably near timeframe up or down on 
this matter, and about how long would he estimate it would take from 
his point of view and those representing him to give them a chance to 
make any remarks, if they so desire; and could we come to some general 
gentleman's agreement on you how long into the future this debate is 
likely to tie up the Senate?
  Mr. SPECTER. Mr. President, I thank the Senator from Nebraska. I 
cannot come to a gentleman's agreement. I anticipated a question of 
Senator Nunn, which will last about 45 seconds. Knowing Senator Nunn as 
I do, I would anticipate about a 2-minute response. And then I would 
anticipate closing in maybe 3 or 4 minutes.
  Mr. McCAIN. Mr. President, if the Senator will yield, I would like to 
speak on this.
  Mr. SPECTER. Fine.
  Mr. President, I would ask unanimous consent that Senator Lautenberg 
be added as an original cosponsor.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. Maybe Senator Lautenberg will want to comment. But that 
is about as much time as I will take.
  Mr. EXON. Mr. President, I yield the floor.
  Mr. SPECTER. I may need time, depending on the gravity of the 
argument of the Senator from Arizona.
  The other question I have from the Senator from Georgia was when he 
is talking about a weapons system, that he is sure he can find some 
admiral or--I certainly understand that. But, again, I suggest 
respectfully to my colleague from Georgia that that is off the mark. 
What is the mark here is that you have a series of letters.
  I ask unanimous consent that the letter from Admiral Claman, dated 
March 29, 1991, and the two letters from Admiral Hexman, dated December 
19, 1990, and March 13, 1991, be printed in the Record.
  There being no objection, the letters were ordered to be printed in 
the Record, as follows:

                                       Department of the Navy,

                                    Washington, DC, Dec. 19, 1990.
     Ref: (a) COMNAVSEA ltr 5000 OPR: 07T3/F0373 Ser: 00/8224 of 
         20 Nov 90. (b) CINCLANTFLT ltr 4700 Ser N436/007378 of 14 
         Sep 90
     From: Commander, Naval Sea Systems Command
     To: Chief of Naval Operations (OP-04)
     Subj: Realignment data for Philadelphia Naval Shipyard
       1. In reference (a), I provided information relative to the 
     proposed realignment of Philadelphia Naval Shipyard, while 
     maintaining the propeller shop and foundry, the Naval Ship 
     Systems Engineering Station (NAVSSES) and the Naval Inactive 
     Ship Maintenance Facility (NISMF). While I realize that the 
     Secretary has been briefed and has concurred with the 
     proposal to mothball Philadelphia Naval Shipyard, I strongly 
     recommend that this decision be reconsidered. It is more 
     prudent to downsize Philadelphia Naval Shipyard to 
     approximately the size of a Ship Repair Facility (SRF) in 
     order to support Navy ships in the New York and Earle 
     homeport areas. In reference (b), CINCLANTFLT outlined the 
     history of Atlantic Fleet depot maintenance problems with 
     marginal ship repair contractors. A Navy industrial 
     capability is required in the Philadelphia area to provide a 
     safety valve when a private sector shipyard is unable to 
     complete awarded ship work.
       2. Further, recommend that the drawdown of Philadelphia 
     Naval Shipyard to an SRF-size shipyard not be done until FY 
     95, as the shipyard is required to support scheduled workload 
     until that time.
                                                  P.M. Hexman, Jr.
                                  ____



                                       Department of the Navy,

                                  Washington, D.C., Mar. 13, 1991.
     Ref: (a) CNO ltr Ser 431F/1U596599 of 11 Jan 91. (b) NAVSEA 
         ltr Ser 00/5312 of 19 Dec 90
     From: Commander, Naval Sea Systems Command
     To: Chief of Naval Operations (OP-041)
     Subj: Realignment of Philadelphia Naval Shipyard
       1. In reference (a), you indicated that my recommendation 
     that Philadelphia Naval Shipyard be downsized rather than 
     closed was not accepted by the Base Closure/Realignment 
     Advisory Committee. The fleet needs the capability of a naval 
     shipyard to provide a credible repair capability able to 
     services the Newport, Philadelphia, New York and Earle area, 
     as well as to provide a source of repair when a private 
     sector shipyard is unable to complete the assigned work in 
     the areas, as stated in reference (b).
       2. Under the closure option and in interest of 
     clarification, the 30 people mentioned in reference (a) were 
     an estimate of the number of people required to man the 
     drydock in a mothball status. In addition to this, 255 people 
     would be required to man the remaining facilities: 135 to 
     provide residual facilities support and 100 to run the 
     propeller shop and foundry. This compares with approximately 
     1,200 personnel under the ``small repair capability''; 
     option: 135 residual facility support, 100 to run the 
     propeller shop and approximately 945 to perform repair work 
     for the fleet. Any required additional support for this 
     facility would be from another larger naval shipyard such as 
     Norfolk Naval Shipyard.
       3. I continue to take the position that retention of a 
     credible repair capability at Philadelphia for naval ships 
     homeported in the Northeast area is the most cost effective 
     solution:
       (1) It provides the fleet with low cost, reliable repair 
     capability.
       (2) It helps spread the effects of the costs to Navy 
     Programs of the other repair facilities (foundry, utilities, 
     etc.).
       Further, the workload distribution for naval shipyards in 
     the 90's supports full operations at Philadelphia through mid 
     FY 95. As previously briefed, executing a realignment of 
     Philadelphia Naval Shipyard in FY 93 will cause significant 
     perturbations to carrier overhauling yard assignments and 
     could result in an East Coast CV overhauling on the West 
     Coast.
                                                  P.M. Hexman, Jr.
                                  ____



                                       Department of the Navy,

                                Washington, DC, December 19, 1990.
     From: Commander, Naval Sea Systems Command
     To: Chief of Naval Operations (CP-04)
     Subj: Realignment data for Philadelphia Naval Shipyard
     Ref: (a) COMNAVSEA ltr 5000 OPR: 0733/T0373 Ser: 00/8224 of 
         20 Nov 10. (b) CINCLANTFLT ltr 4700 Ser N436/007378 of 14 
         Sep 90
       1. In reference (a), I provided information relative to the 
     proposed realignment of Philadelphia Naval Shipyard, while 
     maintaining the propeller shop and foundry, the Naval Ship 
     Systems Engineering Station (NAVSSES) and the Naval Inactive 
     Ship Maintenance Facility (NISMF). (While I realize that the 
     Secretary has been briefed and has concurred with the 
     proposal to mothball Philadelphia Naval Shipyard, I strongly 
     recommend that this decision be reconsidered. It is more 
     prudent to downsize Philadelphia Naval Shipyard to 
     approximately the size of a Ship Repair Facility (SRF) in 
     order to support Navy ships in the New York and Earle 
     homeport areas. In reference (b), CINCLANTFLT outlined the 
     history of Atlantic Fleet depot maintenance problems with 
     marginal ship repair contractors. A Navy industrial 
     capability is required in the Philadelphia area to provide a 
     safety valve when a private sector shipyard is unable to 
     complete awarded ship work.
       2. Further, recommend that the drawdown of Philadelphia 
     Naval Shipyard to an SRF-size shipyard not be done until FY 
     95, as the shipyard is required to support scheduled workload 
     until that time.
                                                  P.M. Hexman, Jr.
                                  ____



                                       Department of the Navy,

                                   Washington, DC, March 29, 1981.
     Encl: (1) Philadelphia Naval Shipyard--Option 1. (2) 
         Philadelphia Naval Shipyard--Option 2. (3) TAB A Report 
         Documentation--Naval Shipyards
     From: Commander, Naval Sea Systems Command
     To: Chief of Naval Operations (OP-43)
     Subj: Base closure final documentation
       1. Enclosures (1) and (2) provide the COBRA options for the 
     naval shipyards as requested on 28 March 1991. They are as 
     follows:
       a. Philadelphia Naval Shipyard--Option 1. Close and 
     preserve Philadelphia Naval Shipyard in FY 93 after 
     completing the USS CONSTELLATION (CV 64) SLEP and the USS 
     FORRESTAL (CV 59) dry docking availability. Retain the 
     propeller facility, the Navy Inactive Ship Maintenance 
     Facility (NISMF) and the Naval Ship Systems Engineering 
     Station (NAVSSES) in Philadelphia. Move the USS JOHN F. 
     KENNEDY (CV 67) overhaul to Norolk Naval Shipyard.
       b. Philadelphia Naval Shipyard--Option 2. Commence 
     realignment of Philadelphia Naval Shipyard in FY 93 and 
     complete downsizing to approximately 1200 people in FY 95. 
     Retain the propeller facility, the Navy Inactive Ship 
     Maintenance Facility (NISMF) and the Naval Ship System 
     Engineering Station (NAVSSES) in Philadelphia.
       3. Enclosure (3) provides the revised documentation for the 
     above options.
       4. We recommend that option 2 be approved for Philadelphia 
     Naval Shipyard, i.e., that Philadelphia Naval Shipyard be 
     drawn down to a small size activity in the mid 90's as 
     workload declines in order to provide a government controlled 
     CV dry dock site and ship repair capability for the 
     northeast.
                                                     J. S. Claman,
                                                Rear Admiral, USN.

  Mr. SPECTER. The questions I have for the Senator from Georgia are: 
Are these letters not really different than a statement by some admiral 
or general that he wants to keep the weapons system? And are they not 
really of a totally different quality when they are kept from the 
General Accounting Office and kept from Senators? And is this the kind 
of a sanction the Senate wants to give to the Navy to hide matters like 
this in order to get their way on the base closing?
  Mr. NUNN. Mr. President, I say to my friend from Pennsylvania that he 
makes a good point. I believe his point is valid in the sense that, 
first of all, information should not be withheld. Second, if it is 
withheld and it is discovered, the people who withheld it should be 
punished under the appropriate procedures. Third, the information, if 
it is withheld and discovered, ought to be presented to the Commission 
itself, and if not the Commission in being, the next Commission. And I 
understand that in the case of these letters, they were presented to 
the 1993 Commission, even though the 1991 Commission took action. 
Fourth, immediately this information should be conveyed to the 
appropriate committees of the Congress of the United States and to 
Congress itself, which would be considering that, and to the President 
of the United States.
  I agree with the Senator on everything he said, with one exception: I 
do not think we need the courts involved in this. I believe there are 
other vehicles, whether it is the IG or the General Accounting Office, 
or whether it is the Congress or the President, without getting 
judicial review which, as I repeat, would actually, I think, compromise 
the timing and overall cohesion of the process.
  Mr. SPECTER. I thank my colleague from Georgia. I have more work to 
do. I am going to take this back to the Base Closure Commission when 
they are back in business in 1995. I am going to prove my case in all 
those other forums. As the Senator from Ohio suggests, I will bring it 
back to the Congress at a later date.
  I note that the Senator from Arizona wants to comment. I will not 
speak long in wrapping up, but I will yield to the Senator from 
Arizona.
  Mr. McCAIN. Mr. President, first of all, I congratulate the Senator 
from Pennsylvania, whose tenacity and dedication to ideals and goals 
that he believes in is well known in this body. I believe it is the 
first time in many years that a sitting Senator has gone so far as to 
argue the case before the U.S. Supreme Court. He has fought this issue 
very hard on behalf of the people of his State and the people of 
Philadelphia. I admire that and appreciate it. In the course of his 
zealous crusade, he has uncovered some clear problems that need to be 
adjusted in the process.
  By the way, I intend to introduce a sense-of-the-Senate resolution 
that the 1995 BRAC process should go forward. I believe that strongly, 
unless there is some dramatic turnaround in the defense budget, because 
the situation as it exists today is that we have cut the defense budget 
over the last 7 or 8 years by some 40 percent in its force structure; 
and, at the same time, only 15 percent of the infrastructure has been 
cut. Frankly, no person can conduct business with a huge overhead that 
they are not using.
  I will hear the arguments when I introduce this bill that the 
environmental cleanup costs have escalated and it is costing us more 
than anticipated. I fully agree with every one of those arguments. But 
we are going to--as it says in one of the advertisements we see on 
television--``pay now or pay later.''
  I know it is not the intent of Senator Specter's amendment, but I 
believe if we open this process up to judicial challenge and suits 
through the courts, in the facts of life of the world we live in today, 
judges would delay or block closures or realignments, and we would see 
argument after argument, not unlike that we saw pursued, albeit 
unsuccessfully, by the Senator from Pennsylvania.
  So I want to work with the Senator from Pennsylvania in attempting to 
make this process more fair, clear. Clearly, the shortcomings will be 
revealed in up-to-date and accurate information being provided by the 
Commission. The Commission has made decisions literally with a few 
minutes of consideration in some cases. I would like to work with him 
in including the process so he does not have to go through what he went 
through.
  So I reluctantly oppose this amendment. But, at the same time, I 
applaud the efforts of the Senator from Pennsylvania and give him my 
commitment that I will do everything I can to make this better. Those 
of us who are from States, frankly, that have bases in jeopardy are 
obviously concerned, and that happens to be the case with my State of 
Arizona.

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