[Congressional Record Volume 148, Number 124 (Thursday, September 26, 2002)]
[Senate]
[Pages S9404-S9412]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                HOMELAND SECURITY ACT OF 2002--Continued


                           Amendment No. 4738

  The PRESIDING OFFICER. Under the order previously entered, there are 
15 minutes equally divided between the two managers of the bill.
  Who yields time?
  The Senator from Connecticut.
  Mr. LIEBERMAN. Mr. President, I yield myself up to 3\1/2\ minutes.
  One of my favorite expressions is: Only in America, this great 
country of ours. I was thinking, as we approach this debate on the 
motion to invoke cloture, that only in the Senate, the great 
deliberative body we are, would we find Members about to do what I fear 
they are going to do, which is to vote against a proposal that they 
themselves have made because they want to vote on it without anyone 
else having a right to amend it. That is where we are.
  We have had a good debate. We have the Gramm-Miller substitute 
amendment to the underlying Senate Governmental Affairs Committee 
proposal that created the Homeland Security Department. Senator Gramm 
and Senator Miller said their proposal and ours are 95 percent the 
same. We have a disagreement about how to protect homeland security 
workers in the new Department and still retain the authority of the 
President over national security.
  Senator Ben Nelson of Nebraska and Senator John Breaux of Louisiana, 
working together with Senator Lincoln Chafee of Rhode Island, have 
found common ground. They presented and crafted an amendment that gives 
a little bit of reassurance against arbitrary action to the Federal 
workers before they have their union rights, collective bargaining 
rights, taken away because the President determines those rights are in 
conflict with national security. It gives the President some new 
authority to reform the civil service system but encourages him to try 
to negotiate those changes with the unions. If that does not work out, 
then it is decided by a board, where the President appoints all the 
members. This achieves some due process and fairness for homeland 
security workers but does not diminish the final word of the President 
of the United States at all.
  In short, with all respect, I say to my colleagues who support Gramm-
Miller but who are going to oppose the end of a filibuster of Gramm-
Miller, they do not know how to accept a yes to the question they have 
asked. The Nelson-Chafee-Breaux amendment says yes to the question they 
have asked: How can we create a Department of Homeland Security, retain 
the authority of the President, and still protect some fairness and due 
process for homeland security workers?
  What they are asking for is an up-or-down vote on the Gramm-Miller 
proposal, the President's proposal, denying us, apparently--the 
majority of us, now 51--the right to vote on an amendment which, 
incidentally, is pretty much the exact same amendment Congresswoman 
Connie Morella, a Republican of the House, was allowed by the 
Republican leadership of the House to put on the President's proposal. 
We can at least offer the same courtesy and rights to three bipartisan 
Members of the Senate.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. LIEBERMAN. Mr. President, I yield such time as the Senator from 
Nebraska requires.
  The PRESIDING OFFICER. The Senator from Nebraska has up to 4 minutes.
  Mr. NELSON of Nebraska. Mr. President, I thank my colleague from 
Connecticut for this opportunity to speak on this amendment.
  Quite frankly, I think my colleague from Connecticut is absolutely 
right, and I ask my friends on both sides to take yes for an answer 
because I truly think this amendment will be the kind of yes that has 
been sought in the past.
  I am puzzled, as I think perhaps anybody watching and many of us here 
today are puzzled, by the characterization of this amendment as being 
in opposition to the President. Anytime you are trying to close the 
gap, anytime you are trying to bring about a resolution of compromise, 
it is hardly an exercise in opposition. I think, if anything, we should 
be looked at as friends of the process in trying to bring this 
together.
  To also suggest cloture would be inappropriate now is also very 
startling because I always thought cloture was how we finally brought 
the end of debate to get a vote for or against legislation to move it 
forward. Right now it seems the vote against cloture is to stall and 
have more opportunity for debate.
  So if people are a bit puzzled, I can only appreciate that fact 
because I am puzzled, too.
  In this exercise, I have learned a lot about the spin as opposed to 
the appropriate characterization of letters or of comments on the 
floor. I thought we were giving Governor Ridge and Senator Gramm 
exactly what they were asking for because that is the way I read 
Senator Gramm's comments. I presided the day he was presenting them, 
and I thought I understood him. I am surprised to find out I did not 
understand what he was saying. I am surprised I cannot read a letter 
from Governor Ridge in which he says the same management authority that 
is now provided in the IRS model is what we are after. We provide that 
in this amendment. Now we find that is not the case, either.
  This is a puzzling day for me. It is perhaps puzzling others who are 
watching it, because when it appears yes cannot be taken for an answer, 
I do not know what kind of an answer will be appropriate. If there is 
other language, I have said I will take a look at it, but I do not 
think the answer is no language. In fact, what we have is an 
opportunity to present something that ought to close the gap, fill in 
the last 5 percent, so we have 100 percent legislation that does what 
the President needs to be able to do and also protects national 
security.
  National security is lost in this debate over nits and little 
differences of opinion about this piece of the amendment or that piece 
of the amendment. We can close them, but we have to be able to be in a 
position to know when they are closed and when enough will be enough.
  Right now I would not know even how to begin to try to close this if 
it remains open, but it seems to me we can vote for cloture and then 
let's have the opportunity to finish this bill, get an up-or-down vote, 
as has been requested, move on and make national security the important 
point it is and have a Homeland Defense Department.
  I yield the floor.
  The PRESIDING OFFICER. Senator Burns is under the time controlled by 
Senator Thompson. The Senator from Montana.
  Mr. BURNS. I congratulate my friends from Nebraska and Connecticut 
who were just talking. It seems like yesterday we came to this body. 
You didn't get my goat, either.
  We have all been involved in conferences. Anytime we pass legislation 
in this body and then it is passed in the House, we go to conference. 
In conference is where we settle our differences. It usually comes down 
to one or two items where there starts to be an impasse.
  Basically, those one or two items were not dealt with in the 
amendment of my friend from Nebraska. It is still there and even adds 
another layer or hurdle for the President to jump in the management of 
this Department before a final decision can be made on the movement of 
money or personnel and their responsibilities in this particular 
national security Department.
  We have not dealt with the two very important ones, and nobody puts 
it better than the ranking member of the committee of jurisdiction. So 
I caution Senators this is a bold attempt to find a compromise, but 
even though you pass their amendment, it does not deal with the heart 
of this debate.

[[Page S9405]]

  So whenever Senators start looking at this, they should look into it 
deeply, and they will find a compromise was attempted, but it did not 
get us to where we should be if they think the President should have 
the flexibility to manage money and personnel in this very important 
new Department we are creating.
  I yield the floor.
  Mr. STEVENS. I am proud to be an original cosponsor of this 
bipartisan substitute, and I am here to urge its adoption as the most 
effective way to create a new Department of Homeland Security to 
protect our Nation from the threat of terrorism.
  I take this opportunity to highlight four important provisions of the 
bipartisan substitute that are significant improvements to the 
committee-endorsed legislation before the Senate.
  These provisions address the use of appropriated funds, presidential 
reorganization authority, and the status of the Coast Guard within the 
Department.
  Section 738 of the bipartisan substitute includes the appropriations-
related language that the committee endorsed to maintain the 
appropriate checks and balances between the legislative and executive 
branches with respect to the use of appropriated funds.
  It improves on that language by authorizing an appropriation of $160 
million, and general transfer authority of $140 million, to begin 
operating the new Department. Both amounts would be subject to 
reasonable Congressional oversight and decisions.
  Section 739 requires the submission of a multi-year spending plan for 
the Department so that Congress and the American people can fully 
understand, and support, the magnitude of funds needed to conduct an 
effective homeland defense.
  Senator Collins and I authored the Coast Guard language in the 
bipartisan substitute--Section 761. This language preserves the non-
homeland security missions of the Coast Guard and its capabilities to 
perform those missions.
  The language also ensures that the Coast Guard Commandant can report 
directly to the homeland security secretary without being required to 
report through any other official of the Department.
  I believe this language improves upon the Committee bill by removing 
the Coast Guard from the Directorate of Border and Transportation 
Protection--the new directorate--and by making it a freestanding 
organization--still the Coast Guard--operating within the department 
and answering directly to the Secretary.
  This action ensures that there is no ambiguity about the independent 
and distinct status of the Coast Guard within the Department, or about 
the Commandant's direct reporting authority. He will report directly to 
the Secretary.
  Finally, Section 734 provides the President with the authority to 
propose further reorganization plans for the Department of Homeland 
Security and to have those plans considered by the Congress under 
expedited procedures.
  This language guarantees that Congress will play a significant role 
in deciding any further reorganizations, and that these proposals will 
be debated and acted upon without delay.
  I would like to discuss the use of appropriated funds.
  The improved appropriations related language and reorganization plan 
language in the bipartisan substitute recognize that the need to 
establish the new Department can be addressed while still preserving 
the Constitution, especially with respect to maintaining Congress's 
``power of the purse.''
  That ``power'' is the primary way Congress holds the executive branch 
accountable for the use of funds, and it ensures that Congress has a 
central role in determining how hard-earned tax dollars will be 
expended.
  Section 738 of the bipartisan substitute reinforces existing law on 
how appropriated funds are used and how property is disposed of. It 
requires congressional approval of any plans to modify or eliminate any 
of the organizations being transferred to the new Department.
  Congress must approve, in advance, the reallocation of transferred 
funds away from their originally intended purposes.
  Accordingly, the proposed statutory language preserves the statutory 
and administrative requirements needed to ensure that any funds made 
available to the new Department are used effectively and efficiently 
and according to the will of the people as reflected through their 
elected Senators and Representatives.
  Our amendment demonstrates that the necessary funding mechanisms and 
flexibility already exist to enable the new Department of Homeland 
Security to perform its mission.
  These procedures are embodied in the appropriations process, which 
can provide the funds needed for the Department without delay through a 
combination of new appropriations, supplementals, or reprogramming 
actions.
  We already have the opportunity to consider new appropriations to 
create the Department in several of the funding bills working their way 
through the congressional process at this very moment. These bills will 
be considered in some format before September 30 or at least before we 
recess for the election period.
  Funds to continue the operations of the organizations transferring to 
the Department also will be provided in these appropriations measures.
  The bipartisan substitute underscores the importance of providing in 
the appropriations process the $160 million in new appropriations and 
the $140 million in general transfer authority.
  These allocations total $300 million, which is a very large sum of 
money. This amount should be more than enough to create the new 
Department and to provide for any initial staffing, equipment, and 
other expenses.
  I pledge to do my very best to provide these amounts in the 
appropriations process as needed.
  The bipartisan substitute reaffirms the regular appropriations 
process and that it will work to allocate the needed start-up funding 
and to prevent disrupting the ongoing operations of the transferred 
organizations.
  With regard to reorganization authority the originally proposed 
legislation for the Department of Homeland Security would have granted 
the new Secretary almost unlimited authority to establish, consolidate, 
alter, or discontinue any organizational units within the Department 
after giving Congress 90 days notice.
  Under the Constitution, Congress has the responsibility to 
appropriate funds by law for the executive branch departments, 
agencies, and other organizations that have constitutional 
responsibilities to execute our laws.
  Congress should not allow the many agencies transferring to the 
Department to be altered, merged, disbanded, or replaced solely and 
unilaterally by executive branch fiat.
  We have the responsibility to ensure that the people's elected 
Senators and Representatives are part of the process of creating, 
modifying, or disbanding the organizations that spend the people's 
hard-earned tax dollars.
  Congress's constitutional role in our system of Government is to set 
priorities for the use of appropriated funds and to oversee their use 
to ensure that these funds are expended effectively and efficiently.
  The creation of a new and effective Department of Homeland Security 
is a shared responsibility between the executive and legislative 
branches. For the Department to be successful, both branches of 
Government--really each branch of Government--must cooperate with each 
other.
  Congress and the executive branch should forge a relationship that is 
based on the mutual trust and shared compromise that the Framers of the 
Constitution envisioned in creating a system of checks and balances. 
Such a relationship is necessary for the effective functioning of the 
Federal Government.
  In section 734, the bipartisan substitute preserves Congress's 
rightful role in this process by requiring that both the Senate and the 
House of Representatives approve any proposed reorganization plans 
under expedited procedures.
  With regard to submission of a multi-year homeland security budget 
plan, section 739 of the bipartisan substitute requires the submission 
of a multiyear, homeland security spending plan with each budget 
request for the new Department, beginning with the fiscal year 2005 
request.
  This section will enable the Congress and the executive branch to 
fully understand the annual and multi-year

[[Page S9406]]

funding requirements to make our homeland secure.
  It will assist us in determining the most appropriate funding levels 
to protect the American people from terrorist threats.
  The recommended statutory language requires that the Future Years 
Homeland Security Program be structured as, and include the same type 
of information and level of detail as, the Future Years Defense Program 
required by law to be submitted to Congress by the Department of 
Defense.
  We have a section preserving the Coast Guard's mission performance. 
Finally, section 761 of the bipartisan substitute is highly important 
language Senator Collins and I authored to maintain the structural and 
operational integrity of the Coast Guard, the authority of the 
Commandant, the nonhomeland security missions of the Coast Guard, and 
the service's capabilities to carry out these missions even as it is 
transferred to the new Department.
  In addition to transferring the Coast Guard as an independent, 
distinct entity reporting directly to the Secretary, the language 
states that the Secretary may not make any substantial or significant 
change to any of the non-homeland security missions and capabilities of 
the Coast Guard without the prior approval by Congress in a subsequent 
statute.
  The President may waive this restriction for no more than 90 days 
upon his declaration and certification to the Congress that a clear, 
compelling, and immediate state of national emergency exists that 
justifies such a waiver.
  The language further directs that the Coast Guard's authorities, 
functions, assets, organizational structure, units, personnel, and 
nonhomeland security missions shall be maintained intact and without 
reduction after the transfer unless the Congress specifies otherwise in 
subsequent acts. This language does permit the Coast Guard to replace 
or upgrade any asset with an asset of equivalent or greater 
capabilities.
  It also states that Coast Guard missions, functions, personnel, and 
assets--including ships, aircraft, helicopters, and vehicles--may not 
be transferred to the operational control of, or be diverted to the 
principal and continuing use of, any other organization, unit, or 
entity of the Department except under limited conditions.
  Upon the transfer of the Coast Guard to the Department, the 
Commandant shall report directly to the Secretary and not through any 
other official of the Department.
  The inspector general of the Department shall annually assess the 
Coast Guard's performance of all its missions with a particular 
emphasis on examining the nonhomeland security missions. The detailed 
results of this assessment shall be provided to Congress annually.
  None of the conditions in the recommended language shall apply when 
the Coast Guard operates as a service in the Navy under section 3 of 
title 14, United States Code.
  The Coast Guard's nonhomeland security missions--and the service's 
capabilities to accomplish them--are as vital to the 30 coastal and 
Great Lakes States as are its homeland security missions and 
capabilities.
  No state is better than Alaska for demonstrating the importance of 
the Coast Guard's nonhomeland security missions.
  The United States has a coastline of 96,000 miles. Alaska has a 
coastline of 47,300 miles, or almost 50 percent, of our Nation's total.
  Alaska's fisheries are a billion dollar industry that delivers food 
to tables all across America and around the world. We harvested 5 
billion pounds of seafood last year.
  The Coast Guard plays an indispensable role in protecting and 
supporting this industry, and in promoting the safety of its 
participants. Just this summer, the Coast Guard dispatched additional 
assets to the maritime boundary line in the Bering Sea to guard against 
intrusions by Russian trawlers.
  The Coast Guard's nonhomeland security missions are marine safety, 
search and rescue, aids to navigation, living marine resources--
including fisheries law enforcement, marine environmental protection, 
and ice operations. They all are critical to the well-being of 
Alaskans, and we rely on the Coast Guard virtually every day for 
protection and assistance in these mission areas.
  The service's homeland security missions are ports, waterways and 
coastal security, drug interdiction, migrant interdiction, defense 
readiness, and other law enforcement.
  The language in the bipartisan substitute is intended to assure that 
the important homeland security priorities of the new Department will 
not eclipse the Coast Guard's crucial nonhomeland security missions and 
capabilities.
  This language modifies the committee provisions to reflect 
suggestions made by the Commandant and his senior staff after they 
analyzed the original language at my request.
  Our additional language allows the Coast Guard to conduct joint 
operations more effectively with other entities in the Department, to 
assign a limited number of Coast Guard military members or civilian 
employees to these entities for liaison, coordination, and operational 
purposes, and to replace or upgrade assets or change non-homeland 
security capabilities with equivalent or greater assets or 
capabilities.
  With the Bipartisan Substitute, I believe the Coast Guard will be in 
an even stronger position to carry out both its vital non-homeland 
security missions and its important homeland security responsibilities.
  Finally, there have been claims that the improved statutory language 
I have highlighted today still may restrict the President's flexibility 
to establish and operate the new Department.
  It is my understanding that the White House was a key participant in 
the crafting of the Bipartisan Substitute, and that any significant 
language was reviewed for acceptability by the President's advisors.
  The President has stated repeatedly that he supports the language in 
the Bipartisan Substitute.
  In his Radio Address to the Nation last Saturday, September 21, the 
President specifically stated that the Bipartisan Substitute would, and 
I quote, ``provide the new Secretary of Homeland Security much of the 
flexibility he needs to move people and resources to meet new 
threats.''
  I ask unanimous request to insert into the Record at the conclusion 
of my remarks the recent statements by the President and his spokesman 
that strongly endorse the bipartisan substitute.
  I also ask unanimous request that an explanation of the start-up 
funding authorized in the bipartisan substitute be inserted in the 
Record at the conclusion of my remarks.
  The PRESIDING OFFICER. Without objection it is so ordered.
  (See Exhibit 1).
  Mr. President, the bipartisan substitute underscores Congress's 
legitimate role in the ongoing process to meet our Nation's homeland 
security requirements responsibly and effectively. It is a significant 
improvement over the committee legislation which I did vote for.
  I urge the Senate to adopt it without delay.
  I thank my friend from Texas, Senator Gramm, for working with us so 
closely in adopting the portions of the bill from the substitute I just 
described. I thank the leadership for their cooperation.

                               Exhibit 1

         President Endorses Gramm-Miller Bipartisan Substitute

       President urges Congress to pass Iraq resolution promptly, 
     September 24, 2002, White House:
       It's time to get a homeland security bill done, one which 
     will allow this President and this administration, and future 
     Presidents--give us the tools necessary to protect the 
     homeland. And we're working as hard as we can with Phil Gramm 
     and Zell Miller to get this bill moving. It's a good bill. 
     It's a bill that both Republicans and Democrats can and 
     should support.
       President Bush calls on Congress to act on Nation's 
     priorities, September 23, 2002, Army National Guard Aviation 
     Support Facility, Trenton, New Jersey, September 23, 2002:
       Senator Gramm, a Republican, Senator Miller, a Democrat, 
     are working hard to bring people together. And the Senate 
     must listen to them. It's a good bill. It's a bill I can 
     accept. It's a bill that will make America more secure. And 
     anything less than that is a bill which I will not accept, 
     it's a bill which I will not saddle this administration and 
     future administrations with allowing the United States Senate 
     to micro-manage the process. The enemy is too quick for that. 
     We

[[Page S9407]]

     must be flexible, we must be strong, we must be ready to take 
     the enemy on anywhere he decides to hit us, whether it's 
     America or anywhere else in the globe.
       Radio address by the President to the Nation, September 21, 
     2002:
       In an effort to break the logjam in the Senate, Senator 
     Miller and Republican Senator Phil Gramm have taken the lead 
     in crafting a bipartisan alternative to the current flawed 
     Senate bill. I commend them, and support their approach. 
     Their proposal would provide the new secretary of homeland 
     security much of the flexibility he needs to move people and 
     resources to meet new threats. It will protect every employee 
     of the new department against illegal discrimination, and 
     build a culture in which federal employees know they are 
     keeping their fellow citizens safe through their service to 
     America.
       I ask you to call your senators and to urge them to vote 
     for this bipartisan alternative. Senators Miller and Gramm, 
     along with Senator Fred Thompson, have made great progress in 
     putting the national interest ahead of partisan interest.
       Press briefing by Ari Fleischer, September 19, 2002:
       Mr. Fleischer. The President today is going to announce his 
     support for a bipartisan compromise, the Miller-Gramm 
     compromise.


        basis of cost estimate included in bipartisan substitute

       The authorization of $160 million to begin departmental 
     operations is based primarily on a CBO cost estimate. That 
     estimate is the best estimate we have.
       OMB's position is that no new funds are needed because 
     start-up costs will be paid with funds diverted from agencies 
     transferred to the Department.
       However, the transferred agencies will need these funds to 
     accomplish their missions.
       Also, Congress should not relinquish its authority and 
     oversight over funding reallocations in the Executive Branch.
       Most of the CBO's estimate for FY03 would be spent on one-
     time costs to hire, house, and equip key personnel to manage 
     the new Department.
       There are four major cost categories:
       $50 million for salaries and other personnel expenses;
       $50 million to rent new space or renovate existing space 
     for about 500 personnel;
       $50 million for a basic computer network and 
     telecommunications system; and
       $10 million to plan for a more sophisticated computer/
     communications system to operationally integrate major 
     agencies in the Department.
       The 140 million estimate for general transfer authority was 
     created by Committee staff to give the Department a $300 
     million total for first year operations.
       The personnel costs assume that the new management team and 
     its support structure will be phased in over the next two 
     years.
       These include the Secretary, his Deputy, the Under and 
     Assistant Secretaries, and key managers such as the General 
     Counsel and Inspector General.
       It also includes ``corporate'' personnel, such as those 
     needed for policy development, legislative affairs, and 
     budget and finance activities.
       The office space estimate is based on GSA experience in 
     housing new agencies.
       The basic computer, date processing, and telecommunications 
     systems will perform the Department's administrative 
     functions--budgeting, accounting, personnel records, etc.
       A more sophisticated and interoperatble computer and 
     communications network to integrate the major operational 
     entities, such as the Coast Guard, INS, Customs, Secret 
     Service, and the Border Patrol, may cost more than $1 billion 
     in later years.
  Mr. CORZINE. Mr. President, I rise today in strong opposition to the 
labor provisions in the Gramm-Miller substitute amendment. This 
approach to homeland security undermines longstanding labor protections 
and a national commitment to the right to organize.
  This amendment seems to rely on the unsupported premise that workers 
rights are somehow incongruous with national security. There is no 
objective basis for that view. In fact, I would argue labor protections 
are directly in our national interest.
  The people of the United States trust federal employees to stand at 
the frontlines in the war on terrorism and protect our nation against 
the myriad vulnerabilities that we may confront in the years to come. 
Border guards, INS workers, and customs agents are people who have the 
patriotic interest of our nation at heart. They guard our waterways and 
now protect our airports. Just as we are emphasizing the United States' 
increasing reliance on these workers, it would demonstrate tremendous 
chutzpah for the United States to remove essential labor protections 
and question the commitment and responsiveness of these workers to our 
national challenges. Working Americans have often sacrificed much to 
save our nation and to subject them to political and unchecked 
managerial discretion is an abdication of America's long held belief in 
the political independence of our government operations.
  But that is precisely what this amendment would do: eliminate hard 
fought labor protections as America calls on its employees to take on 
even greater responsibilities in the War on Terrorism.
  For instance, in the name of management flexibility, the substitute 
amendment being considered here would eviscerate the civil service 
system, and I fear put all Americans at risk.
  The new Department we are discussing today should not be a Republican 
Department or a Democratic Department but an American Department from 
start to finish. There is no room for partisan politics when it comes 
to defending the American people. This cabinet department is being 
created for security, a truly nonpartisan objective and its operation 
after its creation should stay that way.
  In the event that this substitute amendment is accepted by the 
Senate, employees of the Department of Homeland Security whose views 
are out of sync with the official line could be dismissed or 
transferred with little of no justification. This would have a chilling 
effect on the ability of employees in this critically important 
department to perform their jobs with the competence and creativity 
that everyone would expect.
  Furthermore, this amendment could undermine vital whistleblower 
protections designed to ensure that the Congress and the American 
public are kept aware of severe problems that might develop in the new 
Department. The so-called ``management flexibility'' provisions would 
have the effect of silencing criticism in official forms, criticism 
that is desperately needed to improve America's ability to defend its 
borders and protect its people. In fact, incentives to leak critical 
views would be drastically increased as official forms would no longer 
be easily available.
  Let us be clear: the primary supporters of this amendment have never 
been supportive of the various labor protections provided to government 
employees. They never liked the civil service system, despite the fact 
that it prevents bureaucratic decisions from getting mired in politics. 
They oppose the application of Davis-Bacon laws to the new Department, 
despite the fact that requiring federal government contractors to pay 
the prevailing wage encourages higher quality work. And they oppose 
collective bargaining agreements, despite the fact that the underlying 
legislation allows broad authority for the president to waive 
collective bargaining rights for job activities directly related to 
national security. The driver behind this amendment appears to be a 
political and philosophical view opposing the concepts embedded in the 
right to organize, not in protecting national security.
  The fact is, that this Governmental reorganization provided opponents 
of labor rights with a golden opportunity to undermine the very 
protection that they have long opposed. This is not a new approach to a 
new situation, but an old familiar refrain from opponents of labor 
policies that empower our federal employees. Supporters of this 
amendment claim the whole purpose of the change is to increase 
management flexibility in the interests of national security, but make 
no mistake: this debate is about an ideological opposition to 
fundamental components of American labor law.
  With all the waiver authority provided the President in Senator 
Lieberman's bill, it is difficult to see just how this legislation 
would tie the hands of the President. Few reasonable analyses believe 
it will.
  When tragedy struck on September 11, thousands of firefighters and 
police officers rushed to the world trade center. They risked life and 
limb to save their fellow Americans. Their union membership did not 
make them any less patriotic. Union membership of law enforcement and 
firefighters across the nation is unquestioned and standard procedure. 
Their collective bargaining rights did not undermine national security. 
And their work rules did not stop them from demonstrating a high level 
of professionalism on that horrific day or any other day.
  Mr. President, I for one, do not believe we should allow American 
workers to lose hard-fought labor protections while we are asking them 
to take

[[Page S9408]]

on even greater responsibilities and to assimilate into a new 
department. Clearly the authors of the Gramm-Miller amendment disagree.
  I urge my colleagues to oppose the Gramm-Miller amendment.
  The PRESIDING OFFICER (Mr. Nelson of Nebraska). Who yields time?
  Mr. GRAMM. Mr. President, I will be brief. By using cloture, this is 
an effort to put us into a straitjacket that will guarantee the 
President will not get an up-or-down vote on his program.
  Now one may be against the President; they may believe there are some 
priorities higher than the life and safety of our citizens. I do not. 
But whether one agrees with the President or not, when thousands of our 
citizens have been killed, when we are at war with terrorism, the 
President of the United States has the right to have an up-or-down vote 
on his program. That is what we insist on. We will not get that if 
cloture is voted for.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. THOMPSON. Could I inquire as to how much time we have remaining?
  The PRESIDING OFFICER. Three and a half minutes.
  Mr. THOMPSON. Mr. President, before we vote, it is important we 
understand the parameters of the Nelson-Chafee-Breaux amendment. Two 
points: One has to do with the President's national security authority, 
and the other has to do with flexibility. This amendment is purported 
to be a compromise. Senator Gramm has worked diligently, and he and 
Senator Miller have made about 25 changes. They have a compromise that 
is a good one and one the President supports. The compromise 
represented by the Nelson-Chafee-Breaux amendment is not really a good 
compromise, with all due respect to those who have made this effort, 
because of those two areas I mentioned. With regard to the President's 
national security authority, it changes the current law which says if 
the President makes a determination the primary function of an agency 
has to do with national security, he can act under that law to protect 
the national security.
  The changes in the Nelson amendment would make it so the President 
would have to make a determination the activity involved would have to 
be related to terrorist activities, and then this additional 
requirement that the new position to which the people in the agency 
have been transferred, the majority of those people have essentially 
had a change in the function of their job and those things are 
reviewable by courts.
  I understood my friend from Louisiana to say and debate awhile ago 
this court case we were all talking about basically did not give any 
judicial review. Maybe I misunderstood him because when I look at the 
case, it is quite clear there is judicial review under current law and 
under the Nelson amendment. However, under current law, the President 
only has one hurdle. He has to make a determination with regard to 
national security.

  Under the Nelson amendment, he has to make a determination with 
regard to terrorism, but he also has to make a determination with 
regard to the nature of the actual work being carried out by the 
various employees--the President of the United States. Two challenges 
now can be made to the President's activity. Now when you go to court, 
the President has a rebuttable presumption of regulator. There is still 
jurisdiction there, there is still an additional hurdle. Why in the 
world do we want to impose an additional hurdle for this President that 
we have not imposed on prior Presidents? That is No. 1.
  Second, with regard to flexibility, the House sent over six areas of 
flexibility. The Nelson amendment takes two of those areas off the 
table altogether. The Nelson amendment says the new Secretary cannot 
touch the labor-management chapter. It says the new Secretary cannot 
touch the appeals chapter. Both are areas we know need changing. Both 
are areas we know need improvement. We cannot even negotiate with 
regard to those areas. They are totally off the table.
  The PRESIDING OFFICER. The time of the Senator has expired.
  Mr. THOMPSON. I appreciate the attentiveness of the Chair. I yield 
the floor.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. LIEBERMAN. Mr. President, the Senator from Texas has asked us to 
consider what is best for the security of the American people. What is 
best for the security of the American people is to quickly adopt 
legislation that creates a Department of Homeland Security to protect 
them, and not to maintain a stubborn insistence that before you are 
willing to do that, the President must have an up-or-down vote on his 
proposal. That is something on which the Republican House did not 
insist. They gave Members the opportunity to introduce amendments, 
including one just like this.
  I urge my colleagues, vote for cloture. Let's adopt this bill.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. The majority leader asked me to announce this is the last 
vote today. The next vote will occur at approximately 5 or 5:30 on 
Monday afternoon.


                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order, pursuant to Rule 
XXII, the Chair lays before the Senate the pending cloture motion, 
which the clerk will report.
  The bill clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close the debate on the Gramm-
     Miller amendment No. 4738 to H.R. 5005, the Homeland Security 
     legislation:
         Harry Reid, Ben Nelson of Nebraska, Hillary Rodham 
           Clinton, Debbie Stabenow, Mark Dayton, Patrick Leahy, 
           John Breaux, Tom Carper, Tom Daschle, Byron L. Dorgan, 
           Jack Reed, Jim Jeffords, Tim Johnson, Mary Landrieu, 
           Max Baucus, Daniel K. Inouye.

  The PRESIDING OFFICER. The question is, Is it the sense of the Senate 
that debate on the Gramm-Miller amendment numbered 4738 to H.R. 5005, 
the homeland security bill, shall be brought to a close? The yeas and 
nays are required under rule XXII.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. REID. I announce that the Senator from Louisiana (Ms. Landrieu) 
is necessarily absent.
  Mr. NICKLES. I announce that the Senator from New Mexico (Mr. 
Domenici), and the Senator from North Carolina (Mr. Helms) are 
necessarily absent.
  The PRESIDING OFFICER (Mr. Dayton). Are there any other Senators in 
the Chamber desiring to vote?
  The yeas and nays resulted--yeas 44, nays 53, as follows:

                      [Rollcall Vote No. 227 Leg.]

                                YEAS--44

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Breaux
     Cantwell
     Carnahan
     Carper
     Chafee
     Cleland
     Clinton
     Conrad
     Corzine
     Dayton
     Dodd
     Dorgan
     Durbin
     Edwards
     Feinstein
     Graham
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kerry
     Kohl
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Murray
     Nelson (FL)
     Nelson (NE)
     Reed
     Reid
     Rockefeller
     Schumer
     Stabenow
     Torricelli
     Wellstone
     Wyden

                                NAYS--53

     Allard
     Allen
     Bennett
     Bond
     Boxer
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Cochran
     Collins
     Craig
     Crapo
     Daschle
     DeWine
     Ensign
     Enzi
     Feingold
     Fitzgerald
     Frist
     Gramm
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchinson
     Hutchison
     Inhofe
     Kennedy
     Kyl
     Lott
     Lugar
     McCain
     McConnell
     Miller
     Murkowski
     Nickles
     Roberts
     Santorum
     Sarbanes
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Voinovich
     Warner

                             NOT VOTING--3

     Domenici
     Helms
     Landrieu
  The PRESIDING OFFICER. On this vote the yeas are 44, the nays are 53. 
Three-fifths of the Senators duly chosen and sworn not having voted in 
the affirmative, the motion is rejected.
  Mr. DASCHLE. Mr. President, I enter a motion to reconsider the vote 
by which cloture was not invoked on the Gramm-Miller amendment No. 
4738.
  The PRESIDING OFFICER. The leader has that right. The motion is 
entered.


                             Cloture Motion

  Mr. DASCHLE. Mr. President, I send a cloture motion to the desk.
  The PRESIDING OFFICER. The cloture motion having been presented

[[Page S9409]]

under rule XXII, the Chair directs the clerk to read the motion.
  The legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close the debate on the Gramm-
     Miller amendment No. 4738:
         Joseph Lieberman, Max Baucus, Ben Nelson of Nebraska, 
           Dianne Feinstein, Tim Johnson, Patrick Leahy, Jeff 
           Bingaman, Jack Reed, Hillary Rodham Clinton, Jim 
           Jeffords, Debbie Stabenow, Daniel K. Akaka, Harry Reid, 
           Maria Cantwell, Byron L. Dorgan, Herb Kohl.

  Mr. LEVIN. Mr. President, I would like to say a few words about the 
Freedom of Information Act compromise that Senators Bennett and Leahy 
and I were able to achieve and which is included in both the Lieberman 
and Gramm-Miller amendments.
  One of the primary functions of the new Department of Homeland 
Security, DHS, will be to safeguard the nation's infrastructure, much 
of which is run by private companies. The DHS will need to work in 
partnership with private companies to ensure that our critical 
infrastructure is secure. To do so, the homeland security legislation 
asks companies to voluntarily provide the DHS with information about 
their own vulnerabilities; the hope being that one company's problems 
or solutions to its problems will help other companies with problems 
they may be having with their own critical infrastructure.
  Some companies expressed concern that current law did not adequately 
protect their confidential business information that they are being 
asked to provide to the new DHS from public disclosure under the 
Freedom of Information Act. They argued that without a specific 
statutory exemption they would be less likely to voluntarily submit 
information to the DHS about critical infrastructure vulnerabilities. 
However, the Freedom of Information Act and the case law developed with 
respect to it already provide the protections these companies seek.
  The language of our amendment protects from public disclosure the 
records of concern to these companies while preserving the existing 
rights of public access under FOIA. The amendment would protect from 
public disclosure any record furnished voluntarily and submitted to DHS 
that: No. 1, pertains to the vulnerability of and threats to critical 
infrastructure, such as attacks, response and recovery efforts; No. 2, 
the provider would not customarily make available to the public; No. 3, 
are designated and certified by the provider as confidential and not 
customarily made available to the public.
  The amendment makes clear that records that an agency obtains 
independently of DHS are not subject to the protections I just 
enumerated. Thus, if the records currently are subject to disclosure by 
another agency under FOIA, they will remain available under FOIA even 
if a private company submits the same information to DHS. The language 
also allows the provider of voluntarily submitted information to change 
a designation and certification and to make the record subject to 
disclosure under FOIA. The language requires that DHS develop 
procedures for the receipt, designation, marking, certification, care 
and storage of voluntarily provided information as well as the 
protection and maintenance of the confidentiality of the voluntarily 
provided records.
  The amendment defines the terms ``critical infrastructure'' and 
``furnished voluntarily.'' ``Critical infrastructure'' is the same as 
that found in the USA Patriot Act. The term ``furnished voluntarily'' 
excludes records that DHS requires an entity to submit and that are 
used to satisfy a legal obligation or requirement or obtain a grant, 
permit, benefit, or other government approval. This means that records 
used to satisfy a legal obligation or requirement or to obtain a grant, 
permit, benefit or other government approval are ineligible for 
protection under this amendment. In addition, this language does not 
preempt state or local openness laws. Finally, the language requires 
the General Accounting Office to prepare a report tracking the 
voluntarily submitted information to DHS, the number of FOIA requests 
for voluntarily submitted information and whether those requests were 
granted or denied, and recommendations for improving the collection and 
analysis of information held by the private sector.
  It is important to protect the public's right to access information 
as the White House's recent national strategy for homeland security 
points out. The White House report also notes that any limitation on 
public disclosure must be done ``without compromising the principles of 
openness that ensure government accountability.'' I agree. We must move 
cautiously when enacting any legislation to withhold information that 
is not already exempt from disclosure under FOIA and national security 
classifications.
  The principles of open government and the right-to-know of the people 
are cornerstones upon which our country was built. We cannot and will 
not hastily and foolishly sacrifice them in the name of protecting 
them. This compromise achieves the balancing that is needed between 
openness and security. I thank Senators Bennett and Leahy for their 
work on developing this amendment.
  Mr. LEAHY. Mr. President, in the wake of the terrorist attacks of 
September 11, bipartisan support in the Senate grew for the concept of 
a Cabinet-level officer with a new department to coordinate homeland 
security. In fact, Chairman Lieberman of the Governmental Affairs 
Committee and Senator Specter must be commended for their hard work and 
prescience in introducing legislation within weeks of the attacks to 
create a new Department of Homeland Security.
  The administration initially differed with this approach. Instead, 
the President invited Governor Ridge to serve as the Director of a new 
Office of Homeland Security. I invited Governor Ridge in October, 2001, 
to testify before the Judiciary Committee about how he would improve 
the coordination of law enforcement and intelligence efforts, and his 
views on the role of the National Guard in carrying out the homeland 
security mission, but he declined.
  Without Governor Ridge's input, the Judiciary Committee continued 
oversight work that had begun in the summer of 2001, before the 
terrorist attacks, on improving the effectiveness of the U.S. 
Department of Justice, the lead Federal agency with responsibility for 
domestic security. This task has involved oversight hearings with the 
Attorney General and with officials of the Federal Bureau of 
Investigation and the Immigration and Naturalization Service. In the 
weeks immediately after the attacks, the Committee turned its attention 
to hearings on legislative proposals to enhance the legal tools 
available to detect, investigate and prosecute those who threaten 
Americans both here and abroad. Committee members worked in partnership 
with the White House and the House to craft the new antiterrorism law, 
the USA PATRIOT Act, which was enacted on October 26, 2001.
  We were prepared to include in the new anti-terrorism law provisions 
creating a new cabinet-level officer heading a new Department of 
Homeland Security but did not, at the request of the White House. 
Indeed, from September, 2001 until June, 2002, the Administration was 
steadfastly opposed to the creation of a Cabinet-level Department to 
protect homeland security. Governor Ridge stated in an interview with 
National Journal reporters on May 30 that if Congress put a bill on the 
President's desk to make his position statutory, he would ``probably 
recommend that he veto it.'' That same month, the White House spokesman 
also objected to a new Department and told reporters, ``You still will 
have agencies within the federal government that have to be 
coordinated. So the answer is: Creating a Cabinet post doesn't solve 
anything.''
  In one respect, the White House was correct: Simply moving agencies 
around among Departments does not address the problems inside agencies 
such as the FBI or the INS--problems like outdated computers; hostility 
to employees who report problems; lapses in intelligence sharing; lack 
of translation and analytical capabilities; along with what many have 
termed, ``cultural problems.'' The Judiciary Committee and its 
subcommittees have been focusing on identifying those problems and 
finding constructive solutions to fix them. To that end, the Committee 
unanimously reported the FBI Reform Act, S.1974, to improve the FBI, 
especially at this time when the country needs the FBI to be as 
effective as it can be in the war against terrorism. Unfortunately, 
that bill has

[[Page S9410]]

been stalled on the Senate floor by an anonymous Republican hold.
  The White House made an abrupt about-face on June 6, 2002, on the 
issue of whether our national security could benefit from the creation 
of a new Department of Homeland Security. This was the same day that 
the Judiciary Committee was continuing its oversight responsibility and 
was scheduled to hear from FBI Director Robert Mueller and FBI Special 
Agent Coleen Rowley, who was highly critical of the manner in which FBI 
Headquarters handled the investigation of Zacarias Moussaoui.
  Thirty minutes before the nationally televised testimony from an FBI 
agent about intelligence failures before the September 11 terrorist 
attacks, word emerged from the White House that the President had 
changed his position and announced that he supported the formation of a 
new Homeland Security Department along the lines that Senator Lieberman 
and Senator Specter had suggested, though the draft of the President's 
proposal was not yet completed. Indeed, press reports that day indicate 
that ``Administration officials said the White House hoped to use the 
reorganization to deflect attention from the public backbiting that 
broke out among federal agencies as Congress began investigating 
intelligence failures surrounding the Sept. 11 attacks.'' Washington 
Post, June 6, 2002, at 12:52 PM.
  Two weeks later, on June 18, 2002, Governor Ridge transmitted a 
specific legislative proposal to create a new homeland security 
department. It should be apparent to all of us that knitting together a 
new agency will not by itself fix existing problems. In writing the 
charter for this new department, we must be careful not to generate new 
management problems and accountability issues. Yet the Administration's 
proposal would have exempted the new department from many legal 
requirements that apply to other agencies. The Freedom of Information 
Act would not apply; the conflicts of interest and accountability rules 
for agency advisors would not apply. The new Department head would have 
the power to suspend the Whistleblower Protection Act, the normal 
procurement rules, and to intervene in Inspector General 
investigations. In these respects, the Administration asked us to put 
this new Department above the law and outside the checks and balances 
these laws are put there to ensure.
  Exempting the new Department from laws that ensure accountability to 
the Congress and to the American people makes for soggy ground and a 
tenuous start--not the sure footing we all want for the success and 
endurance of this endeavor.
  Specifically, the administration's June proposal contained, in 
section 204, a new exemption requiring nondisclosure under the Freedom 
of Information Act, FOIA, of any ``information'' ``voluntarily'' 
provided to the new Department of Homeland Security by ``non-Federal 
entities or individuals'' pertaining to ``infrastructure 
vulnerabilities or other vulnerabilities to terrorism'' in the 
possession of, or that passed through, the new department. Critical 
terms, such as ``voluntarily provided,'' were undefined.
  The Judiciary Committee had an opportunity to query Governor Ridge 
about the Administration's proposal on June 26, 2002, when he testified 
in his capacity as the Director of the Transition Planning Office for 
the proposed Department of Homeland Security. At that hearing, a number 
of Senators made clear that the President should not play politics with 
the proposal to create a new Department. One senior Republican member 
of the Judiciary Committee put it bluntly that action on the new 
Department should take place ``without political gamesmanship,'' I 
share that view.
  We all wanted to work with the President to meet his ambitious 
timetable for setting up the new department. We all know that one sure 
way to slow up the legislation would be to use the new department as 
the excuse for the Administration to undermine or repeal laws it did 
not like or to stick unrelated political items in the bill under the 
heading of ``management flexibility.'' We all want the same end goal of 
an efficiently operating Homeland Security Department, but as the same 
senior Republican member of the Judiciary Committee advised at the June 
26 hearing, for the sake of getting the new department underway, 
``[t]here may well be areas of debate or issues that we in Congress 
need to save for another day.''
  At that hearing, I cautioned the administration not to use the 
proposal for the new Department of Homeland Security to: No. 1, 
increase secrecy in government by creating a huge new exemption to the 
Freedom of Information Act for private sector security problems; No. 2, 
weaken whistleblower protections for dedicated Government workers who 
help fight Government waste, fraud and abuse; or No. 3, cut wages and 
job security for hardworking Government employees.
  Governor Ridge's testimony at that hearing is instructive. He 
appeared to appreciate the concerns expressed by Members about the 
President's June 18th proposal and to be willing to work with us in the 
legislative process find common ground to get the legislation done. On 
the FOIA, he described the Administration's goal to craft ``a limited 
statutory exemption to the Freedom of Information Act'' to help ``the 
Department's most important missions [which] will be to protect our 
Nation's critical infrastructure.'' Governor Ridge explained that to 
accomplish this, the Department must be able to ``collect information, 
identifying key assets and components of that infrastructure, evaluate 
vulnerabilities, and match threat assessments against those 
vulnerabilities.''
  The FOIA already exempts from disclosure matters that are classified; 
trade secret and commercial and financial information, which is 
privileged and confidential; various law enforcement records and 
information, including confidential source and informant information; 
and FBI records pertaining to foreign intelligence or 
counterintelligence, or international terrorism. These already broad 
exemptions in the FOIA are designed to protect national security and 
public safety.
  Indeed, the head of National Infrastructure Protection Center, NIPC, 
testified over 5 years ago, in September, 1998, that the private 
sector's FOIA excuse for failing to share information with the 
Government was, in essence, baseless. He explained the broad 
application of FOIA exemptions to protect from disclosure information 
received in the context of a criminal investigation or a ``national 
security intelligence'' investigation, including information submitted 
confidentially or even anonymously. This is from the Senate Judiciary 
Subcommittee on Technology, Terrorism, and Government Information, 
``Hearing on Critical Infrastructure Protection: Toward a New Policy 
Directive,'' on March 17 and June 10, 1998. The FBI also used the 
confidential business record exemption under (b)(4) ``to protect 
sensitive corporate information, and has, on specific occasions, 
entered into agreements indicating that it would do so prospectively 
with reference to information yet to be received.'' NIPC was developing 
policies ``to grant owners of information certain opportunities to 
assist in the protection of the information (e.g., by sanitizing the 
information themselves) and to be involved in decisions regarding 
further dissemination by the NIPC.'' In short, the former 
administration witness stated:

       Sharing between the private sector and the government 
     occasionally is hampered by a perception in the private 
     sector that the government cannot adequately protect private 
     sector information from disclosure under the Freedom of 
     Information Act (FOIA). The NIPC believes that this 
     perception is flawed in that both investigative and 
     infrastructure protection information submitted to NIPC are 
     protected from FOIA disclosure under current law.

  Nevertheless, businesses have continued to seek a broad FOIA 
exemption. I expressed my concern that an overly-broad FOIA exemption 
would encourage government complicity with private firms to keep secret 
information about critical infrastructure vulnerabilities, reduce the 
incentive to fix the problems and end up hurting rather than helping 
our national security. In the end, more secrecy may undermine rather 
than foster security.
  Governor Ridge seemed to appreciate these risks and said he was 
``anxious to work with the Chairman and other members of the committee 
to assure that the concerns that [I had] raised are properly 
addressed.'' He assured us that ``[t]his Administration is ready to

[[Page S9411]]

work together with you in partnership to get the job done. This is our 
priority, and I believe it is yours as well.''
  Almost before the ink was dry on the Administration's earlier 
proposal, on July 10, the Administration proposed to substitute a much 
broader FOIA exemption that would (1) exempt from disclosure under the 
FOIA critical infrastructure information voluntarily submitted to the 
new department that was designated as confidential by the submitter 
without the submitter's prior written consent, (2) provide limited 
civil immunity for use of the information in civil actions against the 
company, with the likely result that regulatory actions would be 
preceded by litigation by companies that submitted designated 
information to the department over whether the regulatory action was 
prompted by a confidential disclosure, (3) preempt state sunshine laws 
if the designated information is shared with state or local government 
agencies, (4) impose criminal penalties of up to one year imprisonment 
on government employees who disclosed the designated information, and 
(5) extend antitrust immunity to companies that joined together with 
agency components designated by the President to promote critical 
infrastructure security.
  Despite the Administration's promulgation of two separate proposals 
for new FOIA exemption in as many weeks, in July, Governor Ridge's 
Office of Homeland Security released The National Strategy for Homeland 
Security, which appeared to call for more study of the issue before 
legislating. Specifically, this report called upon the Attorney General 
to ``convene a panel to propose any legal changes necessary to enable 
sharing of essential homeland security information between the 
government and the private sector.''

  The need for more study of the Administration's proposed new FOIA 
exemption was made amply clear by its possible adverse environmental, 
public health and safety affect. Keeping secret problems in a variety 
of critical infrastructures would simply remove public pressure to fix 
the problems. Moreover, several environmental groups pointed out that, 
under the Administration's proposal, companies could avoid enforcement 
action by ``voluntarily'' providing information about environmental 
violations to the EPA, which would then be unable to use the 
information to hold the company accountable and also would be required 
to keep the information confidential. It would bar the government from 
disclosing information about spills or other violations without the 
written consent of the company that caused the pollution.
  At the request of Chairman Lieberman for the Judiciary Committee's 
views on the new department, I shared my concerns about the 
Administration's proposed FOIA exemption and then worked with Members 
of the Governmental Affairs Committee--and in particular, with Senator 
Levin and Senator Bennett--to craft a more narrow and responsible 
exemption that accomplishes the Administration's goal of encouraging 
private companies to share records of critical infrastructure 
vulnerabilities with the new Department of Homeland Security, without 
providing incentives to ``game'' the system of enforcement of 
environmental and other laws designed to protect the nation's public 
health and safety.
  I commend Chairman Lieberman and Senators Levin and Bennett and their 
staffs for diligently working with me to refine the FOIA exemption in a 
manner that satisfies the Administration's stated goal, while limiting 
the risks of abuse by private companies or government agencies.
  Specifically, section 198 on ``Protection of Voluntarily Furnished 
Confidential Information'' of the Lieberman Amendment to H.R. 5005 
reflects the compromise solution we reached with the Administration and 
other Members interested in this important issue. This section exempts 
from the FOIA certain records pertaining to critical infrastructure 
threats and vulnerabilities that are furnished voluntarily to the new 
Department and designated by the provider as confidential and not 
customarily made available to the public. This provision improves on 
the Administration's July 18 proposal in the following ways:
  First, section 198 limits the FOIA exemption to ``records'' submitted 
by the private sector, not ``information'' from the private sector. 
Therefore, if companies provide information to the new Department that 
is documented in an agency-created record, that record will be subject 
to the FOIA and not exempt simply because private sector information is 
referenced or contained in the record. Moreover, this section makes 
clear that portions of records that are not covered by the exemption 
should be released pursuant to FOIA requests, unlike the Administration 
proposals which would have allowed the withholding of entire records if 
any part is exempt.
  Second, section 198 limits the FOIA exemption to records pertaining 
to ``the vulnerability of and threats to critical infrastructure (such 
as attacks, response, and recovery efforts)'' not all ``critical 
infrastructure information.''
  Third, section 198 does not provide any civil liability or antitrust 
immunity that could be used to immunize bad actors or frustrate 
regulatory enforcement action.
  Fourth, section 198 limits the FOIA exemption to records submitted to 
the new Department of Homeland Security, as in the administration's 
initial June 18 proposal, since the stated goal of the exemption is to 
help that Department provide a centralized function of collection, 
review and analysis of critical infrastructure vulnerabilities. Records 
submitted by private companies to other agencies are not covered by the 
new exemption, even if the same document is also submitted to the new 
Department.
  Fifth, section 198 does not preempt state or local sunshine laws.
  Sixth, section 198 narrowly defines ``furnished voluntarily'' to 
ensure that records submitted by companies to obtain grants, permits, 
licenses or other government benefits are not exempt, but are still 
subject to the FOIA process.
  This section is a significant improvement over both versions of the 
Administration's proposed new FOIA exemptions.
  Unfortunately, other critical areas that were mentioned at the June 
26 hearing with Governor Ridge, on which he assured us he would work 
with us to find common ground, remain stumbling blocks. The 
Administration has threatened a veto over the issue of ``management 
flexibility.'' At the same time we are seeking to motivate the 
government workers who will be moved to the new Department with an 
enhanced security mission, the Administration is insisting on 
provisions that threaten the job security for these hardworking 
government employees. The Administration should not use this transition 
as an excuse to cut the wages and current workplace security and rights 
of the brave employees who have been defending the nation. That is not 
the way to encourage retention or recruitment of the vital human 
resources on which we will need to rely, and it is a sure way to 
destroy the bipartisanship we need.
  Mr. ALLEN. Mr. President, I rise to speak in support of an amendment 
that I have offered to assist Federal employees who have been injured 
on the job. My good colleagues, Senator Warner of Virginia and Senators 
Clinton and Schumer of New York, join me in this important effort. This 
provision was inspired by Mrs. Louise Kurtz, a Federal employee who was 
severely injured in the September 11 attack on the Pentagon. She 
suffered burns over 70 percent of her body, lost her fingers, yet 
fights daily in rehabilitation and hopes to return to work one day. 
Current law does not allow Mrs. Kurtz to contribute to her retirement 
program while she is recuperating and receiving Office of Worker's 
Compensation Programs disability payments. As a result, after returning 
to work she will find herself inadequately prepared and unable to 
afford to retire because of the lack of contributions during her 
recuperation period.
  As Mrs. Kurtz's situation reveals, Federal employees under the 
Federal Employees Retirement System who have sustained an on-the-job 
injury and are receiving disability compensation from the Department of 
Labor's Office of Worker's Compensation Programs are unable to make 
contributions or payments into Social Security or the Thrift Saving 
Plan. Therefore, the future retirement benefits from both sources are 
reduced.

[[Page S9412]]

  The provision I have offered corrects this shortfall in the Federal 
Employees Retirement System, FERS. By increasing a Federal employee's 
FERS direct benefit by 1 percent for a period of extended convalescence 
resulting from a work related injury, the future reductions on Social 
Security and Thrift Savings Plan, TSP, benefits that result from the 
inability to make contributions during periods of disability are 
offset.
  The retirement program for Federal Employees Retirement System 
employees has three distinct parts: Social Security, Federal Employees 
Retirement System Defined Benefits, and Thrift Savings Plan. Social 
Security taxes and benefits are the same for all participants. The 
Federal Employees Retirement System Defined Benefit and the Thrift 
Savings Plan are similar to defined benefit and 401(k) plans in the 
private sector. Unlike the impact on Social Security and the Thrift 
Savings Plan, periods during which an individual is receiving Office of 
Worker's Compensation Programs disability payments have no impact when 
calculating the length of service for determining the Federal Employees 
Retirement System Defined Benefit retirement payments. To explain how 
the provision will work, I offer the following illustration.
  As you know, Mr. President, the goal of the Federal Employees 
Retirement System is to provide retirement pay totaling about 56 
percent of their ``high three'' annual salary. Under the old Civil 
Service Retirement System, a direct benefit plan, two percent of a 
person's salary was set aside to provide the retirement benefit of 56 
percent employees did not pay into Social Security or a vested savings 
plan. Under Federal Employees Retirement System, one percent of a 
person's salary is set aside to provide the Federal Employees 
Retirement System Direct Benefit retirement payment of 26 percent of 
their ``high three'' annual salary with Social Security and Thrift 
Savings Plan retirement pay contributing the remaining 30 percent for a 
total of 56 percent. But increasing the Federal Employees Retirement 
System Direct Benefit calculation by one percentage point for extended 
periods of disability, one can adequately offset reduction in Social 
Security and Thrift Savings Plan payments resulting from the lack to 
payments into the systems during periods of disability caused by one 
the job injuries.
  Louise Kurtz has earned our appreciation for the role she and her 
husband Michael have played in identifying this shortfall in Federal 
Employees Retirement System and in persevering in getting legislation 
introduced to address the problem. Indeed, Mrs. Kurtz continues to 
serve the American public even while recuperating from injuries 
sustained in the terrorist attack upon the Pentagon.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, the Senator from Wisconsin has been waiting 
for a long time. The Senator from Pennsylvania is here to offer a 
unanimous consent request. It is my understanding that it would take 2 
minutes. So I appreciate the courtesy of the Senator from Wisconsin.
  The PRESIDING OFFICER. The Senator from Pennsylvania.

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