[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.
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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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