[Congressional Record Volume 148, Number 124 (Thursday, September 26, 2002)]
[Senate]
[Pages S9369-S9371]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        THE GRAMM-MILLER AMENDMENT TO THE HOMELAND SECURITY BILL

  Mr. WARNER. Mr. President, I rise today, with other colleagues, to 
support the Gramm-Miller amendment. I wish to address very specifically 
some provisions.
  The overall amendment addresses the concerns which I had very early 
on and are outlined in a letter to the Governmental Affairs Committee. 
At that time, I said to the then-chairman, in writing, I had specific 
concerns. This particular amendment by Gramm and Miller has taken care 
of those concerns. It is for that reason I lend my support.
  It provides the President with the authority he needs to organize our 
Government at this critical time to deal with these most unusual 
threats that are confronting our Nation today.
  The Presiding Officer and I are privileged to serve together on the 
Armed Services Committee, and he full well appreciates the diversity 
and the unprecedented threats that face this Nation today.
  I think Senators Gramm and Miller have gone about this in a very 
balanced way. I specifically thank the Senator from Texas and the 
Senator from Georgia because I approached them, asking that they 
include a provision in their bill which I had devised with the help of 
my colleague from Tennessee, Mr. Thompson, my colleague from Utah, who 
is in the Chamber, and my colleague from Virginia, Senator Allen. 
Senator Allen and Senator Bennett have taken the lead in the high-tech 
caucus.
  In the course of one of our periodic meetings on this subject, the 
group brought to our attention the need to have this type of indemnity 
legislation, and once Senator Bennett, Senator Allen, and I approached 
the Gramm-Miller team, they accepted this amendment. I wish to talk 
about it today and the importance of that amendment within the 
amendment that is on the floor now.
  The legislation I am proposing with others would authorize the 
President to apply basically the same indemnification authorities now 
available to the Secretary of Defense, such that it can be applied to a 
much larger number of the departments and agencies of the Federal 
Government, as well as State and local--as well as State and local--
governments so these entities of the Federal and State government can 
go about the business of contracting with our private sector and enable 
the contractors to have certain protections regarding the products 
which are the subject of the contract or the services, which products 
and services are directly contributing to the war on terrorism and the 
protection of our Nation.

  It is quite interesting, I find there is an urgent need for this 
authority. It has existed in the Department of Defense for so many 
years. I was privileged to serve in the Department of Defense from 1969 
through 1974 as Secretary and Under Secretary of the Navy. The 
Presiding Officer, I think, was on active duty at that time and had an 
exemplary career in the military.
  But, for example, contractors today would not sell the chemical and 
biological detectors to a wider range of Federal agencies and 
departments, and State and local, but they can take the same product 
and sell it to the Department of Defense. So we are kind of caught up 
in interpretations of a Presidential directive, the existing law. I 
think we do not have the time to sort it out in the courts, and it is 
best to clarify it here in Congress.
  This is a bipartisan effort, I assure the Presiding Officer and 
others.
  Some of our Nation's top defense contractors simply cannot sell these 
products to the other agencies, State and Federal, today. In the 
meantime, our vulnerability here in the United States, in my own 
experience, is of great concern to me.
  We should give the President the option that he currently does not 
have of deciding whether other departments and agencies, Federal and 
State, should have this authority.
  The liability risk has been a longstanding deterrent to the private 
sector, freely contracting with the Department of Defense, but now 
wishes to broaden its contracting with other departments and agencies.

[[Page S9370]]

  Congress has acted in the past to authorize the indemnification of 
contracts. I find this history fascinating. For example, on December 
18, 1941, just a short time after the tragic Pearl Harbor experience--2 
weeks--the Congress enacted title II of the First War Powers Act of 
1941. By providing authority to the President to indemnify contracts, 
this legislation and its successor pieces of legislation have enabled 
the private sector to enter into contracts that involve a substantial 
liability risk occasioned by their services and products.
  Administrations since President Franklin Roosevelt's day have used 
these authorities to indemnify or share the risk with defense 
contractors. This was required to jump-start the ``arsenal of 
democracy,'' as described by the President in 1941.
  It was true again in 1958, when the nuclear and missile programs were 
facilitated by the indemnification of risk associated with the use of 
nuclear power and highly volatile missile fuels.
  It is true today for technology solutions required by agencies 
engaged in the war against terrorism. And that is the purpose of this 
legislation.
  This war is going to be different in many ways--many ways--we cannot 
envision at this moment or in the future. For one, much of the Nation's 
homeland defense activities are going to be conducted by State and 
local governments. It is, thus, imperative to ensure that State and 
local governments can access vital antiterrorism technologies and not 
let the contractor be subjected to undue risk.
  To facilitate this, my amendment would require the establishment of a 
Federal contracting vehicle to which State and local governments could 
turn to rapidly buy antiterrorism solutions from the Federal 
Government. The President would also be authorized, if he deemed it 
necessary, to indemnify these purchases. Again, discretion rests with 
the President, and he, in turn, has delegated this authority to the 
Secretary of Defense. I presume if this legislation becomes law, he 
will delegate it to other heads of departments and agencies.
  Again, I wish to emphasize two points: One, that this authority is 
discretionary. The President, on a case-by-case basis, may decide 
whether to indemnify contracts.
  I expect the President will use the authority much as it has been 
used at the Department of Defense, carefully and thoughtfully, and only 
for those products the Government cannot obtain without the use of this 
authority.
  The second point I want to emphasize is that indemnification is not 
in conflict with any efforts to limit or cap liability. My legislation 
should not be seen as an alternative for tort reform, but merely as one 
tool that can be used by the President to ensure that vitally needed 
technologies necessary for homeland defense are placed into the hands 
of those who need them.
  During World War II and all subsequent wars, conflicts and 
emergencies in which the U.S. has been involved, we have needed 
domestic contractors to be innovative, resourceful and ready to support 
efforts at home and abroad. In 1941, the Congress wanted contractors to 
know that if they were willing to engage in unusually hazardous 
activities for the national defense, then the U.S. Government would 
address the potential liability exposure associated with the conduct of 
such activities. Our position should be no different now.
  I conclude with remarks about another matter connected with the 
Gramm-Miller amendment. There are many aspects in the creation of this 
new department of homeland defense that are unprecedented. Contentious 
civil service issues have largely driven the debate on homeland 
security in this Chamber in the past days and weeks. Over 170,000 
employees from 22 agencies will be transferred to the new Department of 
Homeland Security, including an estimated 43,000 Federal employees 
represented by 18 different unions.
  Since President Bush proposed the creation of homeland security, I 
have been involved in discussions with a number of my colleagues on 
both sides of the aisle and with the Federal employee unions and their 
members about the potential consequences to Federal employees. In order 
to successfully achieve this complex collaboration, I recognize the 
importance of the President's request for increased flexibility in 
managing the new Department.
  The uncertainty, however, of the administration's intentions with 
additional labor and management flexibility has fostered mistrust, 
understandably so, among these Federal employees. The administration in 
no way should put into question basic labor rights and civil service 
protections for these employees.
  The administration cannot ignore the impact this is having on morale, 
not only on the employees being transferred, but throughout the Federal 
workforce. With no firm commitment from the administration that 
collective bargaining rights will not be weakened outside of reasons 
directly related to national security, I cannot blame these Federal 
employees for being anxious.
  I can personally attest to the dedication of civil service employees 
throughout the Federal Government. There has never been reason to 
question that during a national crisis, Federal employees perform their 
duties first, setting aside personal grievances. Federal employees have 
been relocated, reassigned and worked long hours under strenuous 
circumstances with no complaints since the September 11 attacks. Their 
loyalty is first and foremost to their country. Federal employees have 
proven this time and again.
  I have carefully considered several compromise proposals on the civil 
service provisions in the homeland security legislation. I am strongly 
concerned about initiatives that would weaken or interfere with the 
President's authority under current law to exclude Federal employees 
from collective bargaining if those employees are primarily involved in 
national security work. Every President, since it became law in 1978, 
has exercised this authority in the interest of national security. 
There can be no argument that this new department's primary purpose and 
focus is protecting our national security interests.
  That said, I would strongly encourage the administration to engage in 
further discussions with the Federal employee unions and assuage some 
of their concerns. Information should be available on an ongoing basis 
concerning the administration's actions and intentions regarding 
creation and management of the new department.
  It is my hope that before the House of Representatives and Senate 
vote on the final version of homeland security legislation, some 
provisions can be agreed upon to lessen the tension, the fear that 
exists in the civil service ranks.
  I have been privileged to have lived my life in Virginia, the greater 
metropolitan area, and have had the opportunity to be in the civil 
service in a number of positions, all the way from a letter carrier and 
forest firefighter, in 1943-1944, and service in the military to 
Secretary of the Navy, where I was privileged to have, as a part of my 
department, several hundred thousand Federal service employees.
  I guarantee you, the ranks of the Federal civil service employees are 
no less patriotic than the ranks of the military. They are fine, loyal, 
hard-working Americans. I am hopeful the distinguished manager of the 
bill and others can listen and take into consideration their concerns 
and somehow put into this bill those provisions which will lessen the 
fear and the concern among these brave citizens in our country.
  Mr. GRAMM. Will the Senator yield?
  Mr. WARNER. Yes.
  Mr. GRAMM. Mr. President, no one has been clearer or more effective 
or more concerned about trying to protect the rights of people who work 
for the Federal Government than the Senator from Virginia. It would 
have been easy for the Senator from Virginia to simply look the other 
way, forget about the terrorist threat, and be on the other side of 
this issue. It has not escaped my attention many people who are 
Government employees work in the Senator's State.
  I thank the Senator for making this bill, supported by the President, 
better by his input. I thank him for looking at the big picture. If we 
could keep everything the way it is and provide for the national 
security of the country, there would not be much of a debate. But, 
unfortunately, in real life, it is not black and white, right or wrong; 
it is tough choices.
  Maybe it is because the Senator has the background of having been 
involved in defending the Nation himself,

[[Page S9371]]

having been Secretary of the Navy, or maybe it is simply because he 
just has the big picture. I thank him for his leadership on this issue.
  I assure him, if there is any way we can work out an agreement on a 
bipartisan basis to find a solution, I want to do that.
  There is one constraint: We cannot give the President a law that 
won't get the job done. If he says he needs a pickup truck, we can't 
give him this beautiful, shiny pickup truck with no steering wheel.
  I look forward to working with the Senator. I appreciate his 
leadership and, quite frankly, his courage on this issue.
  Mr. WARNER. Mr. President, I thank my colleague for his very 
thoughtful remarks. If I may say, in conversations in the presence of 
the President of the United States on this subject and the importance 
of homeland security--and I have attended several meetings along with 
other colleagues--this matter has been raised. I detect in the 
President no concern that Government employees are secondhand citizens, 
but they are entitled to their rights.
  That is the purpose of this legislative body, to bridge the gaps to 
the extent we can and protect all the people.
  I thank my colleague and yield the floor.

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