[Congressional Record Volume 149, Number 43 (Tuesday, March 18, 2003)]
[Senate]
[Pages S3885-S3888]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEAHY (for himself, Mr. Hatch, Ms. Mikulski, and Mr. 
        Durbin):
  S. 640. A bill to amend subchapter III of chapter 83 and chapter 84 
of title 5, United States Code, to include Federal prosecutors within 
the definition of a law enforcement officer, and for other purposes; to 
the Committee on Governmental Affairs.
  Mr. LEAHY. Mr. President, I rise to introduce, with my good friends 
Senator Hatch, Senator Mikulski and Senator Durbin, the Federal 
Prosecutors' Retirement Benefit Equity Act of 2003. This bill would 
correct an inequity that exists under current law, whereby Federal 
prosecutors receive substantially less favorable retirement benefits 
than other nearly all other people involved in the Federal criminal 
justice system. The bill would increase the retirement benefits given 
to Assistant United States Attorneys by including them as ``law 
enforcement officers'', LEOs, under the Federal Employees' Retirement 
System and the Civil Service Retirement System. The bill would also 
allow the Attorney General to designate other attorneys employed by the 
Department of Justice who act primarily as criminal prosecutors as 
LEO's for purposes of receiving these retirement benefits.
  The primary reason for granting enhanced retirement benefits to LEOs 
is the often dangerous work of law enforcement. Currently, Assistant 
United States Attorneys, AUSAs, and other Federal prosecutors are not 
eligible for these enhanced benefits, which are enjoyed by the vast 
majority of other employees in the criminal justice system. This 
exclusion is unjustified. The relevant provisions of the United States 
Code dealing with retirement benefits define an LEO as an employee 
whose duties are, ``primarily the investigation, apprehension, or 
detention'' of individuals suspected or convicted of violating federal 
law. See 5 U.S.C. Sec. Sec.  8331(20) & 8401(17). AUSAs and other 
federal prosecutors participate in planning investigations, 
interviewing witnesses both inside and outside of the office setting, 
debriefing defendants, obtaining warrants, negotiating plea agreements 
and representing the government at trials and sentencings, all of which 
fall within the definition of the duties performed by law enforcement 
officers. Indeed, once a defendant is brought to into the criminal 
justice system, the person with whom they have the most face-to-face 
contact, and often in an extremely confrontational environment, is the 
Federal prosecutor.
  Although prosecutors do not personally execute arrests, searches and 
other physically dangerous activities, LEO status is accorded to many 
criminal justice employees who do not perform such tasks, such as 
pretrial services officers and probation officers and accountants, 
cooks and secretaries of the Bureau of Prisons. Moreover, because they 
are often the most conspicuous representatives of the government in the 
criminal justice system, Federal prosecutors are natural targets for 
threats of reprisals by vengeful criminals. Indeed, there are numerous 
incidents in which assaults and serious death threats have been made 
against federal prosecutors, sometimes resulting in significant 
disruption of their personal and family lives.
  Only recently a veteran Federal prosecutor in the Western District of 
Washington was murdered in his home, and, although the crime remains 
unsolved, based upon the facts of the case the authorities have 
referred to the crime as a hit. In addition, I have received many other 
accounts from Federal prosecutors regarding specific threats to which 
they and their families have been subjected because of the performance 
of their duties. Federal prosecutors have written to me that they have 
been forced to relocate themselves and their families due to death 
threats; that they have been assaulted; that they and their families 
have been followed by members of criminal organizations; that have been 
forced to install security systems at their homes and to change their 
routes to and from the office to protect their safety and the safety of 
their families.
  As our fight against terrorism continues, Federal prosecutors arel on 
the front lines once again as the symbols of our criminal justice 
system, and unfortunately therefore the targets of those who seek its 
downfall. Among other tasks, the Attorney General has designated AUSA's 
to play a major role working with police and Federal agents in each 
judicial district's Anti-Terrorism Task Force. One Federal prosecutor 
wrote to me stating that shortly after his name was in the local news 
as heading his district's Anti-Terrorism Task Force and he had spoken 
to his family about taking suitable precautions, that his young son 
came into his bedroom one night holding a hockey stick for protection 
asking about their safety. Thus, Federal prosecutors and their families 
will deal more than ever with a level of stress and danger that 
justifies their being treated as LEOs.
  Another example of the danger facing Federal prosecutors appeared in 
the USA Today earlier this month. That article, which I ask unanimous 
consent to make part of the Congressional Record, reports that United 
States Attorney's will also be asked to play an advisory role in 
potential hostilities with Iraq. If there was ever an illustration of 
the importance of granting Federal prosecutors equal retirement status 
as their other law enforcement partners, this is it.
  Enhanced retirement benefits are also justified by the Federal 
Government's need for experienced prosecutors to bring ever more 
sophisticated cases under increasingly complex Federal criminal laws. 
In recent years, we have seen the growth of complex Federal 
prosecutions to combat the threats posed by organized crime, drug 
cartels, terrorist groups and other sophisticated criminals. The 
prosecution of such difficult cases is best handled by experienced 
prosecutors. It is therefore in the public interest to provide 
reasonable financial incentives for talented, experienced prosecutors 
to remain in government service.
  This bill would make Assistant United States Attorneys and other 
Federal prosecutors designated by the Attorney General eligible for 
immediate, unreduced retirement benefits at age 50 with 20 years of 
service. For example, prosecutors who are covered by the Civil Service 
Retirement System would receive 50 percent of the average of their 
three highest years' salary. At

[[Page S3886]]

the same time, it would exempt prosecutors from the mandatory 
retirement provisions that require other law enforcement officers to 
retire at age 57. Because the loss of physical strength and agility 
does not adversely affect a person's ability to function as a 
prosecutor, there is no reason to mandate early retirement.
  Two important features of this bill will contain its costs. First, 
the bill provides that incumbent Federal prosecutors are themselves 
responsible for making up the difference in individual contributions 
owed to the Civil Service Retirement and Disability Fund for their 
prior service. An incumbent has the choice of making up this difference 
either by making a payment up front or by accepting a reduction in 
retirement benefits. Second, government contributions for the prior 
service of incumbents are made ratably over a ten-year period under 
this bill. Thus, payments for prior government contributions are spread 
out to lessen the financial impact. These two provisions will insure 
that the cost of the bill is kept well within reason.
  This bill enjoys broad, grass roots support. When Senator Hatch and I 
introduced this same bill in the last Congress, I received literally 
hundreds of letters supporting this bill, sent from over 40 states, 
District of Columbia and Puerto Rico. The bill also enjoys support in 
the law enforcement community. The National Association of Assistant 
United States Attorneys, the Federal Criminal Investigators 
Association, and the Southern States Police Benevolent Association have 
all wrote me to voice support for the inclusion of AUSAs in the 
definition of an LEO. I tried, with Senator Hatch, to include this 
measure in our Department of Justice Authorization legislation in the 
last Congress, but the House would not agree to its inclusion in the 
conference report. I hope that we can work together in both houses to 
enact the bill in this Congress.
  In addition, I know that other Senators, including Senator Mikulski, 
are considering additional measures to expand these same retirement 
benefits to other Federal employees who perform law enforcement 
functions, including IRS employees whose primary duty is to collect 
delinquent taxes. I cosponsored such a measure in the last Congress, 
and I continue to support and commend her leadership in bringing these 
matters to the forefront.
  For all of these reasons, I am pleased to introduce this legislation 
with Senators Hatch, Mikulski and Durbin, and I urge its swift 
enactment into law.
  I ask unanimous consent that the text of the bill be printed in the 
Record along with the sectional analysis and the newspaper article to 
which I referred.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 S. 640

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Federal Prosecutors 
     Retirement Benefit Equity Act of 2003''.

     SEC. 2. INCLUSION OF FEDERAL PROSECUTORS IN THE DEFINITION OF 
                   A LAW ENFORCEMENT OFFICER.

       (a) Civil Service Retirement System.--
       (1) In general.--Paragraph (20) of section 8331 of title 5, 
     United States Code, is amended by striking ``position.'' and 
     inserting ``position and a Federal prosecutor.''.
       (2) Federal prosecutor defined.--Section 8331 of title 5, 
     United States Code, is amended--
       (A) in paragraph (27), by striking ``and'' at the end;
       (B) in paragraph (28), by striking the period and inserting 
     ``; and''; and
       (C) by adding at the end the following:
       ``(29) `Federal prosecutor' means--
       ``(A) an assistant United States attorney under section 542 
     of title 28; or
       ``(B) an attorney employed by the Department of Justice and 
     designated by the Attorney General of the United States.''.
       (b) Federal Employees' Retirement System.--
       (1) In general.--Paragraph (17) of section 8401 of title 5, 
     United States Code, is amended--
       (A) in subparagraph (C), by striking ``and'' at the end;
       (B) in subparagraph (D), by adding ``and'' after 
     ``agency;''; and
       (C) by adding at the end the following:
       ``(E) a Federal prosecutor;''.
       (2) Federal prosecutor defined.--Section 8401 of title 5, 
     United States Code, is amended--
       (A) in paragraph (33), by striking ``and'' at the end;
       (B) in paragraph (34), by striking the period and inserting 
     ``; and''; and
       (C) by adding at the end the following:
       ``(35) `Federal prosecutor' means--
       ``(A) an assistant United States attorney under section 542 
     of title 28; or
       ``(B) an attorney employed by the Department of Justice and 
     designated by the Attorney General of the United States.''.
       (c) Treatment Under Certain Provisions of Law (Unrelated to 
     Retirement) To Remain Unchanged.--
       (1) Original appointments.--Subsections (d) and (e) of 
     section 3307 of title 5, United States Code, are amended by 
     adding at the end of each the following: ``The preceding 
     sentence shall not apply in the case of an original 
     appointment of a Federal prosecutor as defined under section 
     8331(29) or 8401(35).''.
       (2) Mandatory separation.--Sections 8335(b) and 8425(b) of 
     title 5, United States Code, are amended by adding at the end 
     of each the following: ``The preceding provisions of this 
     subsection shall not apply in the case of a Federal 
     prosecutor as defined under section 8331(29) or 8401(35).''.
       (d) Effective Date.--The amendments made by this section 
     shall take effect on the first day of the first applicable 
     pay period beginning on or after 120 days after the date of 
     enactment of this Act.

     SEC. 3. PROVISIONS RELATING TO INCUMBENTS.

       (a) Definitions.--In this section, the term--
       (1) ``Federal prosecutor'' means--
       (A) an assistant United States attorney under section 542 
     of title 28, United States Code; or
       (B) an attorney employed by the Department of Justice and 
     designated by the Attorney General of the United States; and
       (2) ``incumbent'' means an individual who is serving as a 
     Federal prosecutor on the effective date of this section.
       (b) Designated Attorneys.--If the Attorney General of the 
     United States makes any designation of an attorney to meet 
     the definition under subsection (a)(1)(B) for purposes of 
     being an incumbent under this section,--
       (1) such designation shall be made before the effective 
     date of this section; and
       (2) the Attorney General shall submit to the Office of 
     Personnel Management before that effective date--
       (A) the name of the individual designated; and
       (B) the period of service performed by that individual as a 
     Federal prosecutor before that effective date.
       (c) Notice Requirement.--Not later than 9 months after the 
     date of enactment of this Act, the Department of Justice 
     shall take measures reasonably designed to provide notice to 
     incumbents on--
       (1) their election rights under this Act; and
       (2) the effects of making or not making a timely election 
     under this Act.
       (d) Election Available to Incumbents.--
       (1) In general.--An incumbent may elect, for all purposes, 
     to be treated--
       (A) in accordance with the amendments made by this Act; or
       (B) as if this Act had never been enacted.
       (2) Failure to elect.--Failure to make a timely election 
     under this subsection shall be treated in the same way as an 
     election under paragraph (1)(A), made on the last day 
     allowable under paragraph (3).
       (3) Time limitation.--An election under this subsection 
     shall not be effective unless the election is made not later 
     than the earlier of--
       (A) 120 days after the date on which the notice under 
     subsection (c) is provided; or
       (B) the date on which the incumbent involved separates from 
     service.
       (e) Limited Retroactive Effect.--
       (1) Effect on retirement.--In the case of an incumbent who 
     elects (or is deemed to have elected) the option under 
     subsection (d)(1)(A), all service performed by that 
     individual as a Federal prosecutor shall--
       (A) to the extent performed on or after the effective date 
     of that election, be treated in accordance with applicable 
     provisions of subchapter III of chapter 83 or chapter 84 of 
     title 5, United States Code, as amended by this Act; and
       (B) to the extent performed before the effective date of 
     that election, be treated in accordance with applicable 
     provisions of subchapter III of chapter 83 or chapter 84 of 
     such title, as if the amendments made by this Act had then 
     been in effect.
       (2) No other retroactive effect.--Nothing in this Act 
     (including the amendments made by this Act) shall affect any 
     of the terms or conditions of an individual's employment 
     (apart from those governed by subchapter III of chapter 83 or 
     chapter 84 of title 5, United States Code) with respect to 
     any period of service preceding the date on which such 
     individual's election under subsection (d) is made (or is 
     deemed to have been made).
       (f) Individual Contributions for Prior Service.--
       (1) In general.--An individual who makes an election under 
     subsection (d)(1)(A) may, with respect to prior service 
     performed by such individual, contribute to the Civil Service 
     Retirement and Disability Fund the difference between the 
     individual contributions that were actually made for such 
     service and the individual contributions that should have 
     been made for such service if the amendments made by section 
     2 had then been in effect.
       (2) Effect of not contributing.--If no part of or less than 
     the full amount required

[[Page S3887]]

     under paragraph (1) is paid, all prior service of the 
     incumbent shall remain fully creditable as law enforcement 
     officer service, but the resulting annuity shall be reduced 
     in a manner similar to that described in section 8334(d)(2) 
     of title 5, United States Code, to the extent necessary to 
     make up the amount unpaid.
       (3) Prior service defined.--For purposes of this section, 
     the term ``prior service'' means, with respect to any 
     individual who makes an election under subsection (d)(1)(A), 
     service performed by such individual before the date as of 
     which appropriate retirement deductions begin to be made in 
     accordance with such election.
       (g) Government Contributions for Prior Service.--
       (1) In general.--If an incumbent makes an election under 
     subsection (d)(1)(A), the Department of Justice shall remit 
     to the Office of Personnel Management, for deposit in the 
     Treasury of the United States to the credit of the Civil 
     Service Retirement and Disability Fund, the amount required 
     under paragraph (2) with respect to such service.
       (2) Amount required.--The amount the Department of Justice 
     is required to remit is, with respect to any prior service, 
     the total amount of additional Government contributions to 
     the Civil Service Retirement and Disability Fund (over and 
     above those actually paid) that would have been required if 
     the amendments made by section 2 had then been in effect.
       (3) Contributions to be made ratably.--Government 
     contributions under this subsection on behalf of an incumbent 
     shall be made by the Department of Justice ratably (on at 
     least an annual basis) over the 10-year period beginning on 
     the date referred to in subsection (f)(3).
       (h) Regulations.--Except as provided under section 4, the 
     Office of Personnel Management shall prescribe regulations 
     necessary to carry out this Act, including provisions under 
     which any interest due on the amount described under 
     subsection (f) shall be determined.
       (i) Effective Date.--This section shall take effect 120 
     days after the date of enactment of this Act.

     SEC. 4. DEPARTMENT OF JUSTICE ADMINISTRATIVE ACTIONS.

       (a) Definition.--In this section the term ``Federal 
     prosecutor'' has the meaning given under section 3(a)(1).
       (b) Regulations.--
       (1) In general.--Not later than 120 days after the date of 
     enactment of this Act, the Attorney General of the United 
     States shall--
       (A) consult with the Office of Personnel Management on this 
     Act (including the amendments made by this Act); and
       (B) promulgate regulations for making designations of 
     Federal prosecutors who are not assistant United States 
     attorneys.
       (2) Contents.--Any regulations promulgated under paragraph 
     (1) shall ensure that attorneys designated as Federal 
     prosecutors who are not assistant United States attorneys 
     have routine employee responsibilities that are substantially 
     similar to those of assistant United States attorneys 
     assigned to the litigation of criminal cases, such as the 
     representation of the United States before grand juries and 
     in trials, appeals, and related court proceedings.
       (c) Designations.--The designation of any Federal 
     prosecutor who is not an assistant United States attorney for 
     purposes of this Act (including the amendments made by this 
     Act) shall be at the discretion of the Attorney General of 
     the United States.
                                  ____


                          [From the USA Today]

              U.S. Attorneys Dispatched To Advise Military

                          (By Steven Komarow)

       KUWAIT CITY.--There could be civilians chained to an Iraqi 
     missile launcher to serve as human shields. Tanks could be 
     parked next to mosques. Chemical weapons plants might also 
     produce medicine.
       In a war with Iraq, U.S. commanders could often have an 
     agonizing choice: strike a target and run the risk of killing 
     civilians, and being accused by the rest of the world of 
     committing a war crime, or hold fire and run the risk that 
     Saddam Hussein will still have deadly weapons he can use 
     against U.S. and British troops or neighboring countries.
       To help weigh those issues, the Pentagon has dispatched 
     dozens of attorneys to command posts in the region. Their 
     job: help keep the United States legal if President Bush 
     unleashes its fury against Saddam's forces.
       Military commanders have long had legal advisers. But more 
     than ever, attorneys are in the teams that choose the 
     strategies, the targets and even the weapons to be used. 
     Lawyers from the Army, Navy, Air Force and Marines will be 
     working around-the-clock to be on hand when targets appear 
     and fast decisions are needed.
       With so much of the world skeptical of U.S. intentions, 
     pressure will be high. ``The world expects the United States 
     to do the right thing,'' says Capt. Noah Malgeri, an Army 
     lawyer.


                           Collateral damage

       Col. Rocco Lamuro, who runs a course on ``targeting law'' 
     at Ramstein Air Base in Germany, say that when air power came 
     of age in World War II, the missions would almost always be 
     planned weeks in advance. There weren't any spy satellites 
     sending ``real-time'' pictures of enemy movements--and thus 
     pushing commanders to make quick decisions on whether to 
     strike. In World War II, there was plenty of time to discuss 
     legalities and debate the potential ``collateral damage,'' 
     the unintentional killing of civilians.
       It was also true back then that collateral damage was 
     accepted as an unfortunate but natural part of war. Sixty 
     years ago, ``you might send 100 B-17 (bombers) to try to 
     destroy something that's within an acre,'' Lamuro says. There 
     were no ``smart bombs'' that could zero in on small targets. 
     It was assumed that many bombs would hit ground far from the 
     target. Today, Lamuro says, ``you'd send only one'' bomber or 
     missile, and the weapon would be expected to hit its target.
       When missiles do go awry, as happened when the United 
     States accidentally struck the Chinese Embassy in Belgrade in 
     May 1999 or when a bomb dropped on Baghdad hit a shelter and 
     killed 408 civilians in 1991, there is alarm worldwide.
       What do U.S. military lawyers--who work in offices of each 
     service's Judge Advocate General (made famous by the CBS-TV 
     show JAG)--use to guide them? The Law of Armed Conflict is a 
     set of rules derived primarily from post-World War II Geneva 
     Conventions. Commanders also must follow U.S. law and the top 
     command's rules of engagement.
       The rules are not pie-in-the-sky pronouncements. They 
     reflect how battles are fought. They try to protect innocents 
     but recognize the reality of battle. ``If you're a priest 
     who's running around blessing people on the battlefield, 
     you're OK,'' Lamuro says. ``If you pick up a gun, you'll get 
     shot. You can't use a technicality to shield yourself.''
       In most cases, there's little dispute about the legality of 
     clear military targets. A tank on a battlefield is always 
     fair game. A school is not--unless it can be proved that it's 
     used as a military site.
       Other cases are less clear, and legal issues aren't the 
     only factors. There is, for instance, the issue of human 
     shields. The 1949 Geneva Convention specifically states that 
     the presence of civilians cannot be used to render a target 
     immune from attack. Just because an enemy has surrounded a 
     weapons depot with civilian volunteers does not make it an 
     illegal target. Even so, Lamuro says, commanders must also 
     worry about ``the CNN test.'' Is the target worth all the 
     loss of innocent life--and the inevitable outcry? Targets 
     such as dams and power plants also are hot-button issues 
     because their destruction would harm civilians. The 
     lawyers would advise they be destroyed only when 
     necessary, Lamuro says. It's practical advice, he says, 
     because the military must be ``as concerned with winning 
     the peace as winning the wars.''


                              individuals

       Targeting individuals is an especially difficult issue. A 
     year ago, there were numerous reports that a Predator drone 
     aircraft loaded with Hellfire missiles had the ousted Taliban 
     leader Mohammed Omar in its sights in Afghanistan. But no 
     missile was fired, reportedly on the advice of a lawyer.
       It isn't known for sure whether the strike was scrubbed 
     because civilians were nearby or for some other reason. But 
     the incident provoked discussion about whether attorneys have 
     too much influence. Lamuro says it would be wrong ``to 
     overstate the lawyers's role.'' They are advisers, he says. 
     Commanders make the ultimate choice.
       One of the hottest legal topics that would be decided only 
     at the highest levels is whether to target Saddam himself. 
     Legally, it could depend on timing: Lawyers say that before a 
     war, he would not be considered a valid military target. U.S. 
     policy also prohibits assassinations of leaders.
       If there was a war and Saddam was commanding the Iraqi 
     army, he would be considered a combatant and could be 
     targeted.
       If he no longer had that role and allied forces caught him 
     fleeing, the target status might be revoked. Instead, he 
     might be given exile or arrested and charged with war crimes.
       Another tenet of the Law of Armed Conflict is that the 
     force used should be proportional to the task. For targeters, 
     that fits neatly into their objective of conserving 
     firepower.
       ``I look for the minimum number of targets that must be 
     struck to adequately achieve the commander's objective,'' 
     says one U.S. intelligence officer, who asked that his name 
     not be reported to protect his identity. In the end, neither 
     the lawyers nor the other officers in the targeting teams 
     have the final word on what will be struck.
       Air plans are reviewed and approved up the chain of 
     command--again with attorneys on hand--to make sure the 
     individual pieces add up to a war plan that is legally 
     defensible.
                                  ____


     ``Federal Prosecutors Retirement Benefit Equity Act of 2003''


                      section-by section analysis

       Sec. 1. Short title. Contains the short title, the 
     ``Federal Prosecutors Retirement Benefit Equity Act of 
     2003.''
       Sec. 2. Inclusion of Federal prosecutors in the definition 
     of a law enforcement officer. Amends 5 U.S.C. Sec. Sec. 8331 
     and 8401 to extend the enhanced law enforcement officer, 
     ``LEO'' retirement benefits to Federal prosecutors, defined 
     to include assistant United States attorneys, ``AUSAs, and 
     such other attorneys in the Department of Justice as are 
     designated by the Attorney General of the

[[Page S3888]]

     United States. This section also exempts Federal prosecutors 
     from mandatory retirement provisions for LEO's under the 
     civil service laws.
       Sec. 3. Provisions relating to incumbents. Governs the 
     treatment of incumbent Federal prosecutors who would be 
     eligible for LEO retirement benefits under this Act. This 
     section requires the Office of Personnel Management to 
     provide notice to incumbents of their rights under this 
     subtitle; allows incumbents to opt out of the LEO retirement 
     program; governs the crediting of prior service by 
     incumbents; and provides for make-up contributions for prior 
     service of incumbents to the Civil Service Retirement and 
     Disability Fund. The section gives incumbents the option of 
     either contributing their own share of any make-up 
     contributions or receiving a proportionally lesser retirement 
     benefit. The section allows the government to contribute its 
     share of any make-up contribution ratably over a ten year 
     period.
       Sec. 4. Department of Justice administrative actions. 
     Allows the Attorney General to designate additional 
     Department of Justice attorneys with substantially similar 
     responsibilities, in addition to assistant United States 
     attorneys, as Federal prosecutors for purposes of this Act 
     and thus be eligible for the LEO retirement benefits.
                                 ______