[Congressional Record Volume 157, Number 24 (Tuesday, February 15, 2011)]
[Senate]
[Pages S748-S756]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. LEAHY (for himself, Mrs. Feinstein, Mr. Menendez, Mr.
Sanders, Mr. Reed, Mr. Whitehouse, and Mr. Franken):
S. 350. A bill to require restitution for victims of criminal
violations of the Federal Water Pollution Control Act, and for other
purposes; to the Committee on the Judiciary.
Mr. LEAHY. Mr. President, today, I reintroduce the Environmental
Crimes Enforcement Act, ECEA, to help ensure that those who destroy the
lives and livelihoods of Americans through environmental crime are held
accountable for their actions. This common sense legislation was
reported by the Judiciary Committee with overwhelming support last
year. I hope the Senate will act on it in this Congress.
The tragic explosion of British Petroleum's Deepwater Horizon Oil Rig
last year is just one example of why this legislation is needed. Eleven
men died in that explosion, and oil flowed into the Gulf of Mexico for
months, with deadly contaminants washing up on the shores and wetlands
of the Gulf Coast. The catastrophe threatened the livelihood of many
thousands of people throughout the Gulf region, as well as precious
natural resources and habitats. The people responsible for this and
other catastrophes should be held accountable, and wrongdoers--not
taxpayers--should pay for the damage they have done. This bill will
help to deter environmental crime, protect and compensate victims of
environmental crime, and encourage accountability among corporate
actors.
First, the ECEA is drafted to deter schemes by big oil and others
that damage our environment and hurt hardworking Americans by
increasing sentences for environmental crimes. All too often
corporations treat fines and monetary penalties as a mere cost of doing
business to be factored against profits. To deter criminal behavior by
corporations, it is important to have laws that result in prison time.
In that light, this bill directs the United States Sentencing
Commission to amend the sentencing guidelines for environmental crimes
to reflect the seriousness of these crimes.
Criminal penalties for Clean Water Act violations are not as severe
as for other white-collar crimes, despite the widespread harm the
crimes can cause. As last year's crisis in the Gulf of Mexico makes
clear, Clean Water Act offenses can have serious consequences in
people's lives and on their livelihoods. These consequences should be
reflected in the sentences given to the criminals who commit them. This
bill takes a reasonable approach, asking the Sentencing Commission to
study the issue and raise sentencing guidelines appropriately, and it
will have a real deterrent effect.
This bill also aims to help victims of environmental crime--the
people who lose their livelihoods, their communities, and even their
loved ones--reclaim their natural and economic resources. To do that,
ECEA makes restitution mandatory for criminal Clean Water Act
violations.
Currently, restitution in environmental crimes--even crimes that
result in death--is discretionary, and only available under limited
circumstances. Under this bill, those who commit Clean Water Act
offenses would have to compensate the victims of those offenses for
their losses. That restitution could help the people of the Gulf Coast
rebuild their coastline and wetlands, their fisheries, and their
livelihoods should criminal liability be found.
Importantly, this bill will allow the families of those killed to be
compensated for criminal wrongdoing. The explosion on the Deepwater
Horizon oil rig brought to light the arbitrary laws that prevent those
killed in such tragedies from bringing civil lawsuits for compensation.
This bill would ensure that, when a crime is committed, the criminal
justice system can provide for restitution to victims, allowing the
families of those killed to be given the means to carry on.
This bill takes two common sense steps--well-reasoned increases in
sentences and mandatory restitution for environmental crime. These
measures are tough but fair. They are important steps toward deterring
criminal conduct that can cause environmental and economic disaster and
toward helping those who have suffered so much from the wrongdoing of
big oil and other large corporations. I hope all Senators will join me
in supporting this bill and these important reforms.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 350
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 ``Environmental Crimes
Enforcement Act of 2011''.
SEC. 2. ENVIRONMENTAL CRIMES.
(a) Sentencing Guidelines.--
(1) Directive.--Pursuant to its authority under section 994
of title 28, United States
[[Page S749]]
Code, and in accordance with this subsection, the United
States Sentencing Commission shall review and amend the
Federal Sentencing Guidelines and policy statements
applicable to persons convicted of offenses under the Federal
Water Pollution Control Act (33 U.S.C. 1251 et seq.), in
order to reflect the intent of Congress that penalties for
the offenses be increased in comparison to those provided on
the date of enactment of this Act under the guidelines and
policy statements, and appropriately account for the actual
harm to the public and the environment from the offenses.
(2) Requirements.--In amending the Federal Sentencing
Guidelines and policy statements under paragraph (1), the
United States Sentencing Commission shall--
(A) ensure that the guidelines and policy statements,
including section 2Q1.2 of the Federal Sentencing Guidelines
(and any successor thereto), reflect--
(i) the serious nature of the offenses described in
paragraph (1);
(ii) the need for an effective deterrent and appropriate
punishment to prevent the offenses; and
(iii) the effectiveness of incarceration in furthering the
objectives described in clauses (i) and (ii);
(B) consider the extent to which the guidelines
appropriately account for the actual harm to public and the
environment resulting from the offenses;
(C) ensure reasonable consistency with other relevant
directives and guidelines and Federal statutes;
(D) make any necessary conforming changes to guidelines;
and
(E) ensure that the guidelines relating to offenses under
the Federal Water Pollution Control Act (33 U.S.C. 1251 et
seq.) adequately meet the purposes of sentencing, as set
forth in section 3553(a)(2) of title 18, United States Code.
(b) Restitution.--Section 3663A(c)(1) of title 18, United
States Code, is amended--
(1) in clause (ii), by striking ``or'' at the end;
(2) in clause (iii), by striking ``and'' at the end and
inserting ``or''; and
(3) by adding at the end the following:
``(iv) an offense under section 309(c) of the Federal Water
Pollution Control Act (33 U.S.C. 1319(c)); and''.
______
By Ms. MURKOWSKI (for herself and Mr. Begich):
S. 351. A bill to authorize the exploration, leasing, development,
and production of oil and gas in and from the western portion of the
Coastal Plain of the State of Alaska without surface occupancy, and for
other purposes; to the Committee on Energy and Natural Resources.
Ms. MURKOWSKI. Mr. President, I rise today to introduce two separate
bills, S. 351 and S. 352, to open a small portion of the Arctic coastal
plain, in my home State of Alaska, to oil and gas development. I am
introducing these bills because new production in northern Alaska is
vital not only to my State's future, but also to our Nation's energy
and economic security.
It has been known for more than 3 decades that the 1.5 million acres
of the Arctic coastal plain that lie inside the Arctic National
Wildlife Refuge present the best prospect in North America for a major
oil and gas discovery. The U.S. Geological Survey continues to estimate
that this part of the coastal plain--which represents just 3 percent of
the coastal plain in all of northern Alaska--has a mean likelihood of
containing 10.4 billion barrels of oil and 8.6 trillion cubic feet of
natural gas, as well as a reasonable chance of economically producing
16 billion barrels of oil. Even the relatively recent major finds in
North Dakota's Bakken field pale in comparison, as ANWR is likely to
hold over four times more oil than any other on-shore energy deposit in
North America.
In the 1990s, opponents dismissed ANWR's potential and argued that
the nearby National Petroleum Reserve-Alaska was forecast to contain
almost as much oil. Just last fall, however, the U.S. Geological Survey
significantly reduced its oil estimates in the 23-million-acre reserve.
Instead of containing somewhere between the 6.7 to 15 billion barrels
forecast in 2002, the USGS now forecasts a mean of 896 million
barrels--a dramatic downward revision.
I still believe oil production must be allowed to proceed in NPRA and
that development of satellite fields west of Nusqiut must be allowed to
occur, since I suspect its forecast is now too conservative. My office
is working to hold this Administration to its word on NPRA by allowing
leaseholders to access the CD5 development which the EPA and Corps of
Engineers has now stalled. But the reduced forecast for northwest
Alaska also means that opening a small area due east, along the coastal
plain, is now more vital than ever for America's economic and national
security interests.
America today receives over 10 percent of its daily domestic oil
production from fields in Arctic Alaska. You heard correctly,
production already occurs in Arctic Alaska, and for more than 30 years,
we have successfully balanced resource development with environmental
protection. Alaskans have proven, over and over again, that those
endeavors are not mutually exclusive.
Today, however, we face a tipping point. Alaska's North Slope
production has declined for years and, with new development blocked at
every turn, it is now forecast to decline to levels that are
threatening the continued operation of the Trans-Alaska Pipeline
System. A closure of TAPS would shut down all northern Alaska oil
production. This would devastate Alaska's economy, drag global oil
prices even higher, and deepen our energy dependence on unstable
petrostates throughout the world.
Anyone who takes the long view on energy policy recognizes that no
matter what energy policy our Nation pursues, we will use substantial
amounts of oil well into the future. The more of that oil we produce
here, at home, the better off our economy, our trade deficit, our
employment levels, and the world's environment will be. Even the
President's handpicked oil spill commission advocates that the U.S.
take the lead on environmental and safety standards for oil development
in areas like the Arctic and Gulf of Mexico, but we cannot honestly
expect to take a leadership role if we are viewed as foolishly leaving
our resources in the ground. We are still more than 50 percent
dependent on foreign nations for our supply of oil, and no combination
of alternative technologies and conservation can appreciably diminish
that number in the near future.
The Energy Information Administration, in its recent preliminary 2011
Energy Forecast, predicts that U.S. crude production may increase by
roughly 10 percent by 2019 because of enhanced oil recovery, increased
shale oil production, and higher oil prices, which make marginal
production more attractive. That will hardly be enough to break our
import dependence, but even more alarming is the forecast that U.S.
domestic production will decline less than a decade from now unless
these new areas are opened for development. To help meet future demand
both here in America and throughout the rest of the world--and to help
avoid a tremendous price spike in the event of a supply disruption--we
need to take steps today to ensure new production is brought online as
soon as possible.
In fact, we already face a supply disruption--a shortage of our own
making. Not one permit for deepwater exploration has been granted since
the Deepwater Horizon disaster last April, even though the moratorium
was officially ended in October. Depending on how long this de facto
moratorium lasts, our Nation could ultimately be deprived of millions
of barrels of oil each day. Make no mistake: we are facing a serious
downturn in offshore oil production from the Outer Continental Shelf,
and that has made production in ANWR even more important for consumers.
ANWR development will also provide huge benefits for the U.S.
Treasury. Let us examine this with some simple math. ANWR's mean
estimate of over 10 billion barrels, at approximately $100 per barrel,
means that there is a trillion dollars worth of oil locked up beneath
this small area in northern Alaska. That is a trillion taxable dollars
and it is difficult to calculate or even fathom the corporate and
payroll taxes that this would generate for our treasury. But we do know
that there is hundreds of billions of dollars in pure federal royalties
since my bill devotes 50 percent of the value to a Federal share,
rather than the 10 percent which current law allows. This is because
deficit reduction has to be a priority.
As our Nation grapples with a $1 trillion budget deficit, $14
trillion in national debt, and a lack of capital to incentivize
renewable and alternative energy, it is folly for America to further
delay new onshore oil development from Alaska. Production in ANWR will
lower our unsustainable debt; improve our national security; reduce our
trade deficit; create well-paying American jobs; and provide a long-
lasting source of funds that can help us
[[Page S750]]
develop the next generation of energy technologies. The question is no
longer, ``should we drill in ANWR?'' Today, it has become, ``can we
afford not to?''
I understand that no matter what happens, some will remain opposed to
development in this region. There are Senators who wish to not only
prohibit oil and gas development onshore in the coastal plain--who wish
to forever lock the area up into formal wilderness--but who also wish
to impede oil and even natural gas development from vast portions of
NPRA and from the offshore waters of the Beaufort and Chukchi Seas.
This mindset ignores Alaska's economic realities, it ignores the
nation's looming energy challenges, and it ignores the fact that Arctic
oil production can proceed without significant environmental harm. Our
development has coexisted productively with polar bears, and will not
harm the Porcupine caribou herd or any other form of wildlife on the
Arctic coast. The groups who oppose my legislation seem totally
oblivious to strides made in directional, extended reach drilling,
three- and four-D seismic testing, and new pipeline leak detection
technology, all of which permit Alaskan energy development to proceed
safely without harm to wildlife or the environment.
Yes, this Nation needs to improve its inspection and regulation of
the oil and gas industry to make sure that America's high environmental
standards are followed on every well, every day. I offer a means to
advance that. Because without domestic oil and gas production, America
will import more oil and gas from troubled global regions. In exchange
we will export our jobs and economic future, as well as simply
exporting environmental risk and ultimately damage, since foreign oil
and gas development regularly fails to meet the standards that American
operators are held to and held accountable for.
For all these reasons, I am reintroducing legislation to open the
coastal plain of ANWR to full development. At the same time, I am
focusing and narrowing and limiting that development so that just 2,000
acres of the 1.5 million acre coastal plain can be physically disturbed
by roads, pipelines, wells, buildings or other support facilities. At
most, just one-tenth of one percent of the refuge's coastal plain would
be physically disturbed. For comparison's sake, 2,000 acres is much
smaller than our local Dulles Airport--compared to an area roughly
three times the size of the State of Maryland. It is hardly a blip on
the map.
Limiting development to such a small area is important, however. It
will help guarantee--beyond any shadow of doubt--the preservation in a
natural state of more than sufficient habitat for caribou, muskoxen,
polar bear, and Arctic bird life. My legislation also includes
stringent environmental standards that will allow the designation of
specific areas for full protection.
The full opening bill, named the American Energy Independence and
Security Act, AEIS, also includes guaranteed funding to mitigate any
impacts in the region, and guarantees that the federal government will
receive half of all revenues generated, with nearly half going for the
first time in the history of ANWR legislation to directly reduce the
Federal deficit. The bill allots other money to fund renewable and
alternative energy development, wildlife programs and fishery habitat
programs, energy conservation efforts, and money to subsidize the
rising cost of energy for lower-income residents through funding of the
Low Income Home Energy Assistance Program, also called LIHEAP. Think
about this--by producing more of our own oil, we can conserve more of
our most spectacular lands, improve the standard of living for
thousands of Americans, and, in one fell swoop, reduce our overall
dependence on oil by creating new, cleaner alternatives.
Despite these remarkable benefits, I understand that many of my
colleagues will forever oppose all development in ANWR., That is why,
in 2009, I worked with my fellow Senator from Alaska to introduce a new
approach that would allow the coastal plain's resources to be accessed
in an even more sensitive manner. Our legislation precludes any
possibility of any disturbance to any creature on the coastal plain by
requiring that all oil and gas in the refuge's coastal plain be
siphoned from underneath the land, with no surface roads, wells, or
pipelines to assist. Not a single structure would be erected on the
surface of the refuge under our bill. There would be literally no
chance of marring the beauty of the coastal plain--it would look and
feel and be just as it is today both during and after full production.
Today, and again in the spirit of bipartisan compromise, I am
reintroducing, with Senator Begich, that legislation. The title is
self-explanatory--we call it the No Surface Occupancy Western Arctic
Coastal Plain Domestic Energy Security Act--because it would allow oil
and gas production only through extended reach directional drilling
from outside of the refuge. The bill would also permit oil and gas to
be tapped using subsurface technology that may someday allow for full
development of the refuge with no sign of such activities visible to
anyone or anything in the refuge.
While I was deeply disappointed that many in the environmental
community did not embrace or even for a moment consider this proposal
as a genuine attempt to end the quarter century fight over Alaskan
energy development, I continue to believe that it is an acceptable,
deeply sensitive way to pursue development in the Arctic. Given the new
extended reach drilling technology being developed for use all over the
world, including Alaska, it could be possible to start producing oil
and gas from ANWR even faster under the subsurface bill than might be
the case under the full leasing bill.
Admittedly, while current technology will only permit wells to reach
8 miles into refuge's boundary, that should still allow us to reach up
to 1.2 billion barrels of oil and 7 trillion cubic feet of natural gas.
As technology improves in the years ahead, so too will the volume of
resources that we can safely recover.
My no-surface occupancy bill will require that 3- or 4-dimensional
seismic and other tests be conducted by mobile units on ice pads when
no wildlife will be in the area. But the bill prevents any disturbance
that can even be seen by migrating caribou. There is precedent for this
proposal. Congress in 2007 approved a Wyoming wilderness lands bill S.
2229, the Wyoming Range Legacy Act, which permits subsurface resource
extraction, provided no surface occupancy occurs. There is also clear
language in the original statute, the Alaska National Interest Lands
Conservation Act, which calls for seismic studies of the coastal plain.
My ANWR subsurface legislation will guarantee that royalties from any
oil and gas produced are split equally between the Federal and State
treasuries, and provides for full environmental protections and project
labor agreements for any development that results. The bill includes
the same provisions for local adaptation aid as does my bill to fully
open ANWR. Both guarantee that any Alaskan community impacted by
development, especially residents of the North Slope Borough and the
nearby Village of Kaktovik, will be fully protected.
My subsurface proposal offers a way for America to gain the oil and
natural gas that will be crucial until a new era of renewable energy
can power our lights and propel our vehicles. It also ensures that none
of the Arctic Porcupine caribou herd that migrates across the coastal
plain between June and August will ever see, hear, or feel oil
development. Combined with the environmental safeguards the Secretary
of the Interior is allowed to establish, there is no danger that any of
the few species that overwinter on the coastal plain will ever be
impacted by seismic or other activities. Out of an abundance of
caution, my legislation further protects subsistence resources and
activities for Alaska Natives.
I truly do not believe that limited surface coastal plain development
will harm Alaska's environment or hurt its wildlife. But my subsurface
bill offers us another way to develop ANWR--and even those who oppose
surface development cannot honestly disagree with its approach. My
subsurface bill would lower the odds of environmental harm from
incredibly miniscule to zero. It would set a precedent for development
that should be welcomed by the environmental community. And if it is
not actively supported, it will be clear that some oppose ANWR solely
on political and philosophical, rather than substantive, environmental
grounds. Such
[[Page S751]]
opposition would undermine the case against the full opening of the
coastal plain for energy development, because it will show that the
opposition to ANWR is based on the sands of old fears, ignoring new
technology and ignoring reality.
For decades, Alaskans, whom polls show overwhelmingly support ANWR
development, have been asking permission to explore and develop oil in
the coastal plain. Finally, technology has advanced so that it is
possible to develop oil and gas from the refuge with little or no
impact on the area and its wildlife. We must seriously consider this
option. Without this level of seriousness about our energy policy,
there will be no chance for us to stabilize global energy markets and
avoid paying extremely high prices for fuel in the future. Our lack of
domestic production endangers our energy security and our strategic
security, especially given that ANWR development could supply more than
enough oil to fully meet our military oil needs on a daily basis.
Last year, shortly after the Deepwater Horizon oil spill, the
President stated that ``part of the reason oil companies are drilling a
mile beneath the surface of the ocean'' is ``because we're running out
of places to drill on land and in shallow water.'' A better
explanation, however, was offered by the columnist Charles Krauthammer,
who said that ``We haven't run out of safer and more easily accessible
sources of oil. We've been run off them . . .'' The truth is that we
haven't run out of oil--onshore or offshore. We've simply tied our own
hands by locking up our own lands.
At this time of high unemployment and unsustainable debt, we need to
pursue development opportunities more than ever. My ANWR bills offer us
a chance to produce more of our own energy, for the good of the
American people, in an environmentally-friendly way. With oil hovering
near $100 a barrel, with so many of our fellow citizens out of work,
and with our Nation still more than 50 percent dependent on foreign
oil--we would be foolish to once again ignore our most promising
prospect for new development.
I hope this Congress will have the common sense to allow America to
help itself by developing ANWR's substantial resources. This is
critical to my state and the nation as a whole. And with this in mind,
I will work to educate the members of this chamber about ANWR. I will
show why such development should occur--why it must occur--and how it
can benefit our Nation at a time when we so desperately need good
economic news.
______
By Ms. COLLINS:
S. 353. A bill to provide for improvements to the United States
Postal Service, and for other purposes; to the Committee on Homeland
Security and Governmental Affairs.
Ms. COLLINS. Mr. President, I rise today to introduce The U.S. Postal
Service Improvements Act of 2011. This legislation would help the U.S.
Postal Service regain its financial footing as it adapts to the era of
increasingly digital communications.
The storied history of the Postal Service pre-dates our Constitution.
In 1775, the Second Continental Congress appointed Benjamin Franklin as
the first Postmaster General and directed the creation of ``a line of
posts . . . from Falmouth in New England to Savannah in Georgia.'' The
Constitution also gives Congress the power to establish post offices
and post roads.
Today, the Postal Service is the linchpin of a $1 trillion mailing
industry that employs approximately 7.5 million Americans in fields as
diverse as direct mail, printing, catalog companies, paper
manufacturing, and financial services.
Postal Service employees deliver mail six days a week to hundreds of
millions of households and businesses. From our largest cities to our
smallest towns, from the Hawaiian Islands to Alaskan reservations, the
Postal Service is a vital part of our national communications network
and an icon of American culture.
But the financial state of the Postal Service is abysmal. The numbers
are grim: the Postal Service lost $8.5 billion in fiscal year 2010 and
recently announced that it posted a net loss of $329 million in the
first quarter of fiscal year 2011 alone. The ``Great Recession,'' high
operating costs, and the continuing diversion of mail to electronic
alternatives have undermined the Postal Service's ability to remain
solvent.
Faced with this much red ink, the Postal Service must reinvent
itself. It must increase revenues by increasing its value to its
customers and by becoming more cost effective.
Unfortunately, many of the solutions the Postal Service has proposed
would only aggravate its problems. Filing for enormous rate increases,
pursuing significant service reductions--including elimination of
Saturday mail delivery--and seeking relief from funding its huge
liabilities are not viable long-term solutions to the challenges
confronting the Postal Service. These changes will drive more customers
to less expensive, digital alternatives. That downturn in customers
will further erode mail volume and lead to a death spiral for the
Postal Service.
The Postal Service must chart a new course in this digital age. It
must adopt a more customer-focused culture. It must see the changing
communications landscape as an opportunity.
The Postal Accountability and Enhancement Act of 2006, which I
authored with Senator Carper, provided the foundation for these long-
term changes, but the Postal Service has been slow to take advantage of
some of the flexibilities afforded by that law. And, to be fair, the
Postal Service has encountered problems not of its making, such as a
severe recession.
The legislation that I introduce today would help the Postal Service
achieve financial stability and light the way to future cost savings
without undermining customer service.
The legislation would help remedy an enormous overpayment by the
Postal Service into retirement funds used by both Federal and postal
employees alike. Based on an independent actuarial analysis, the Postal
Regulatory Commission estimates the Postal Service has overpaid in
excess of $50 billion into the Civil Service Retirement System, CSRS,
and nearly $3 billion into the Federal Employees Retirement System
pension fund. Another independent actuarial firm, commissioned by the
Postal Service Inspector General, estimates that the overpayment into
the CSRS pension fund is even greater, perhaps topping $75 billion. It
is simply unfair--both to the Postal Service and its customers--not to
refund these overpayments.
To address these inequities, the bill would allow the Postal Service
access to the amounts that it has overpaid into these pension funds. It
is essential that the Postal Service be permitted to use these funds to
address other financial obligations, such as its payments for future
retiree health benefits and unfunded workers' compensation liabilities
and for repaying its existing debt.
I have pressed the Office of Personnel Management, OPM, to change its
calculation method for Postal Service payments into the CSRS fund
consistent with the 2006 Postal Reform law. OPM officials, however,
have stubbornly refused to change this methodology or even to admit
that the 2006 postal law permits them to do so. This has created a
bureaucratic standoff that is unfair to the Postal Service. The OPM
holds the life preserver--it could help rescue the Postal Service, but
it simply refuses to throw it.
This legislation directs the OPM to exercise its existing authority
under the 2006 postal reform law and to revise its methodology for
calculating the Postal Service's obligations to the CSRS pension fund.
Once OPM exercises this authority, my legislation would allow the
Postal Service to use any resulting overpayments to cover its annual
payments into the Retiree Health Benefits Fund, rather than having to
wait until after September 30, 2015, to access the CSRS overpayment.
Additionally, the legislation would allow the Postal Service to
access the nearly $3 billion it has overpaid into the Federal Employees
Retirement System, FERS, pension fund. The legislation would grant OPM
this authority by adopting language, similar to Section 802(c) of the
2006 postal reform law, that allows OPM to recalculate the methodology
governing Postal Service payments into the FERS pension fund to
determine a more accurate contribution.
As with the CSRS overpayment, the Postal Service would be permitted
to use the FERS overpayment to meet its
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statutory obligations to the Retiree Health Benefits Fund. These fund
transfers would greatly improve the Postal Service's financial
condition.
While I was pleased to see that the proposed budget the President
released yesterday addresses the FERS overpayment, I was disappointed
that it did not direct OPM to update its methodology to allow the
Postal Service to access the significant CSRS overpayment. Moreover, I
am concerned that the 30-year repayment period proposed by the
President to refund any FERS overpayments is too long given the
immediate financial needs of the Postal Service.
If the CSRS and FERS overpayment amounts are sufficient to fully fund
the Postal Service's obligations to the Retiree Health Benefits Fund,
this legislation would allow the Postal Service to pay its workers'
compensation liabilities, which top $1 billion annually. The Postal
Service may also choose to use these funds to pay down its existing
debt, which currently is $12 billion.
Second, the legislation would improve the Postal Service's
contracting practices and help prevent the kind of ethical violations
recently uncovered by the Postal Service Inspector General.
Several months ago, I asked the Postal Service Inspector General to
review the Postal Service's contracting policies. The IG found stunning
evidence of costly contract mismanagement, ethical lapses, and
financial waste.
In its review of the Postal Service's contracting policies, the IG
discovered no-bid contracts and examples of apparent cronyism. The
Postal Service's contract management did not protect against waste,
fraud, and abuse. Indeed, it left the door wide open.
In fact, the Postal Service could not even identify how many
contracts were awarded without competition. Of the no-bid contracts the
IG reviewed, 35 percent lacked justification.
In one of the more egregious examples of waste and abuse, the IG
discovered that more than 2,700 contracts had been awarded to former
employees since 1991. At least 17 of those contracts were no-bid
contracts given to career executives within one year of their
separation from the Postal Service.
Some of these former executives were brought back at nearly twice
their former pay to advise newly hired executives--an outrageous
practice that the IG said raised serious ethical questions, hurt
employee morale, and tarnished the Postal Service's public image. In
one example, an executive received a $260,000 no-bid contract in July
2009, just two months after retiring. The purpose? To train his
successor.
My legislation would help remedy many of the contracting issues the
IG identified. Specifically, the bill would direct the Postmaster
General to establish a Competition Advocate, responsible for reviewing
and approving justifications for noncompetitive purchases and for
tracking the level of competition.
Earlier this month, the Postmaster General recognized this as an
essential position by naming a Competition Advocate. My bill would help
clarify and codify the Competition Advocate's role to ensure that the
position continues. Under my legislation, the Competition Advocate
would also be required to submit an annual report on Postal Service
contracting to the Postmaster General, the Board of Governors, the
Postal Regulatory Commission, and the Congress.
To improve transparency and accountability, the bill also would
require the Postal Service to publish justifications of noncompetitive
contracts greater than $250,000 on its website. This transparency would
improve the Postal Service's contracting practices and promote
competition.
To resolve the ethical issues documented by the IG, the bill would
limit procurement officials from contracting with personal or business
associates for private gain. In a June 2010 report, the IG identified
several contracts that a former top executive awarded non-competitively
to former business associates, totaling nearly $6 million. These
contracts included at least two business associates he hired to manage
his personal finances and outside business interests. These sorts of
inappropriate, unethical contracts are unacceptable, and this
legislation would help prevent similar conflicts of interest in the
future. In addition, the bill would require the Postal Service's ethics
official to review any ethics concerns that the contracting office
identifies prior to awarding a contract.
Third, the legislation includes several provisions that would enhance
efficiency and reduce costs. While the Postal Service has made efforts
to reduce costs over the past several years, more must be done.
One such area is in the consolidation of area and district offices.
The IG found that the Postal Service's regional structure--which at the
time of the report consisted of eight area offices and 74 district
offices and cost approximately $1.5 billion to maintain in fiscal year
2009--has significant room for consolidation. The Postal Service
recently announced the closure of one area office, but it needs to
conduct a more comprehensive review. My bill would require the Postal
Service to create a strategic plan to guide consolidation efforts--a
road map for future savings.
The bill also would require the Postal Service to develop a plan to
increase its presence in retail facilities, or co-locate, to better
serve customers. Before co-location decisions could be made, however,
the bill would direct the Postal Service to weigh the impact of any
decision on small communities and rural areas. Moreover, the Postal
Service would be required to solicit community input before making
decisions about co-location and to ensure that co-location does not
diminish the quality of service.
Fourth, the bill would require the arbitrator to consider the Postal
Service's financial condition when rendering decisions about collective
bargaining agreements. This logical provision would allow critical
financial information to be weighed as a factor in contract
negotiations.
Fifth, the bill would require the Postal Service to provide notice of
any significant proposed changes to mailing rules, solicit and respond
to comments about the proposed changes, and analyze their potential
financial impacts. Mandating that the Postal Service adhere to these
notice-and-comment requirements would help ensure that the Postal
Service has fully considered the effect that significant changes might
have on customers and on the Postal Service's bottom-line.
Sixth, the bill would reduce workforce-related costs government-wide
by converting retirement eligible postal and Federal employees on
workers' compensation to retirement when they reach age 65, 5 years
beyond the average retirement age for postal and Federal employees.
This is a commonsense change that would significantly reduce expenses
that both the Postal Service and the Federal Government cannot afford.
From July 1, 2009, to June 30, 2010, the Department of Labor paid
approximately $2.78 billion to employees on workers' compensation.
These workers' compensation benefits serve as a crucial safety net for
Federal and postal employees who are injured on the job so they can
recuperate and return to work.
But, the Department of Labor indicates that postal and Federal
employees across the government are receiving workers' compensation
benefits into their 80s, 90s, and even 100s. Because of its benefits
structure, the workers' compensation program has morphed into a higher-
paying alternative to Federal and postal retirement.
The Postal Service stands out as an unfortunate example of how
Federal workers' comp is misused as a retirement system. From July 1,
2009, to June 30, 2010, postal employees accounted for nearly half of
all workers' comp benefit payments--about $1.1 billion for 15,470
recipients. Of that number 2,051 were aged 70 or older; 927 were 80 or
older; and 132 were 90 or older. Amazingly, three of these postal
employees were 98 years old.
I must ask the obvious question: Is there any likelihood that these
recipients will ever return to work? No.
Then why aren't they transitioning to the retirement system when they
reach retirement age?
This bill reforms the law by converting postal and Federal employees
on workers' compensation to the retirement system when they reach age
[[Page S753]]
65. This is a commonsense change that would save millions of dollars
that the Postal Service, the Federal Government, and American taxpayers
cannot afford to spend.
The Postal Service is at a crossroads; it must choose the correct
path. It must take steps toward a bright future. It must reject the
path of severe service reductions and huge rate hikes, which will only
alienate customers.
I have already received letters of support for my bill from various
organizations, including the Alliance of Nonprofit Mailers, Greeting
Card Association, Magazine Publishers Association, American Catalog
Mailers Association, National Newspaper Association, PostCom, National
Postal Policy Council, Coalition for a 21st Century Postal Service, and
the National League of Postmasters. I expect to receive more as postal
stakeholders learn more about how my bill would help the Postal Service
transform its operations.
The Postal Service must re-invent itself. It must embrace changes to
revitalize its business model, enabling it to attract and keep
customers. The U.S. Postal Service Improvements Act of 2011 will help
spark new life into this institution, helping it evolve and maintain
its vital role in American society.
______
By Mr. CARDIN:
S. 354. A bill to amend the Classified Information Procedures Act to
improve the protection of classified information and for other puroses;
to the Committee on the Judiciary.
Mr. CARDIN. Mr. President, the Classified Information Procedures Act,
CIPA, was enacted in 1980 with bipartisan support to address the
``disclose or dismiss'' dilemma that arose in espionage prosecutions
when a defendant would threaten the government with the disclosure of
classified information if the government did not drop the prosecution.
Previously, there were no Congressionally-mandated procedures that
required district courts to make discovery and admissibility rulings
regarding classified information in advance.
CIPA has worked reasonably well during the last 30 years, but some
issues have arisen in a number of notable terrorism, espionage, and
narcotics cases that demonstrate that reforms and improvements could be
made to ensure that classified sources, methods and information can be
protected, and to ensure that a defendant's due process and fair trial
rights are not violated. In 2009, when the Congress enacted the
Military Commissions Act, MCA, the Congress drew heavily from the
manner in which the federal courts interpreted CIPA when it updated the
procedures governing the use of classified information in military
commission prosecutions. At that time, however, the Congress did not
update CIPA. Indeed, since its enactment in 1980, there have been no
changes to the key provisions of CIPA.
As the former Chairman of the Senate Judiciary's Terrorism and
Homeland Security Subcommittee, I chaired a number of hearings during
which witnesses testified about the capacity of our civilian courts to
try alleged terrorists and spies. The first Subcommittee hearing that I
chaired was on July 28, 2009, and was entitled ``Prosecuting
Terrorists: Civilian and Military Trials for GTMO and Beyond.'' The
second Terrorism and Homeland Security Subcommittee hearing that I
chaired was on May 12, 2010, and was entitled ``The Espionage Statutes:
A Look Back and A Look Forward.'' The testimony I have heard in regard
to terrorism, espionage and our civilian courts, has convinced me that
while our courts have the capacity and the procedures in place to try
alleged terrorists and spies, reforms and improvements could be made to
CIPA to codify and clarify the decisions of the federal courts.
As a result, today I am reintroducing the Classified Information
Procedures Reform and Improvement Act, CIPRIA. CIPRIA contains reforms
and improvements to ensure that the statute maintains the proper
balance between the protection of classified sources, methods and
information, and a defendant's constitutional rights. Among other
things, this legislation, which includes the applicable changes that
the Congress made when it enacted the Military Commissions Act of 2009,
will: codify, clarify and unify federal case law interpreting CIPA;
ensure that all classified information, not just documents, will be
governed by CIPA; ensure that prosecutors and defense attorneys will be
able to fully inform trial courts about classified information issues;
and will clarify that the civil state secrets privilege does not apply
in criminal cases. CIPRIA will also ensure high-level DOJ approval
before the government invokes its classified information privilege in
criminal cases and will ensure that the federal courts will order the
disclosure and use of classified information when the disclosure and
use meets the applicable legal standards. This legislation will also
ensure timely appellate review of lower court CIPA decisions before the
commencement of a trial, explicitly permit trial courts to adopt
alternative procedures for the admission of classified information in
accordance with a defendant's fair trial and due process rights, and
make technical fixes to ensure consistent use of terms throughout the
statute.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 354
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; DEFINITIONS.
(a) Short Title.--This Act may be cited as the ``Classified
Information Procedures Reform and Improvement Act of 2011''.
(b) In General.--Section 1 of the Classified Information
Procedures Act (18 U.S.C. App.) is amended--
(1) by redesignating subsection (b) as subsection (c); and
(2) by inserting after subsection (a) the following:
``(b) `Disclosure', as used in this Act, includes the
release, transmittal, or making available of, or providing
access to, classified information to any person (including a
defendant or counsel for a defendant) during discovery, or to
a participant or member of the public at any proceeding.''.
(c) Technical and Conforming Amendment.--Section 501(3) of
the Immigration and Nationality Act (8 U.S.C. 1531(3)) is
amended by striking ``section 1(b)'' and inserting ``section
1''.
SEC. 2. PRETRIAL CONFERENCE.
Section 2 of the Classified Information Procedures Act (18
U.S.C. App.) is amended--
(1) by inserting ``(a) In General.--'' before ``At any
time'';
(2) by adding at the end the following:
``(b) Ex Parte.--If the United States or the defendant
certifies that the presence of both parties at a pretrial
conference reasonably could be expected to cause damage to
the national security of the United States or the defendant's
ability to make a defense, then upon request by either party,
the court shall hold such pretrial conference ex parte, and
shall seal and preserve the record of that ex parte
conference in the records of the court for use in the event
of an appeal.''.
SEC. 3. PROTECTIVE ORDERS.
Section 3 of the Classified Information Procedures Act (18
U.S.C. App) is amended--
(1) by inserting ``(a) In General.--'' before ``Upon
motion'';
(2) by inserting ``use or'' before ``disclosure'';
(3) by inserting ``, or access to,'' after ``disclosure
of'';
(4) by inserting ``, or any classified information derived
therefrom, that will be'' after ``classified information'';
(5) by inserting ``or made available'' after ``disclosed'';
and
(6) by adding at the end the following:
``(b) Notice.--In the event the defendant is convicted and
files a notice of appeal, the United States shall provide the
defendant and the appellate court with a written notice
setting forth each date that the United States obtained a
protective order under this Act.''.
SEC. 4. DISCOVERY OF AND ACCESS TO CLASSIFIED INFORMATION BY
DEFENDANTS.
Section 4 of the Classified Information Procedures Act (18
U.S.C. App.) is amended--
(1) in the section heading, by inserting ``and access to''
after ``discovery of'';
(2) by inserting ``(a) In General.--'' before ``The court,
upon'';
(3) in the first sentence--
(A) by inserting ``to restrict the defendant's access to
or'' before ``to delete'';
(B) by striking ``from documents'';
(C) by striking ``classified documents, or'' and inserting
``classified information,''; and
(D) by striking the period at the end and inserting ``, or
to provide other relief to the United States.'';
(4) in the second sentence, by striking ``alone.''
inserting ``alone, and may permit ex parte proceedings with
the United States to discuss that request.'';
(5) in the third sentence--
(A) by striking ``If the court enters an order granting
relief following such an ex parte showing, the'' and
inserting ``The''; and
(B) by inserting ``, and the transcript of any argument and
any summary of the classified information the defendant seeks
to obtain discovery of or access to,'' after ``text of the
statement of the United States''; and
[[Page S754]]
(6) by adding at the end the following:
``(b) Access to Other Classified Information.--If the
defendant seeks access to nondocumentary information from a
potential witness or other person through deposition under
the Federal Rules of Criminal Procedure, or otherwise, which
the defendant knows or reasonably believes is classified, the
defendant shall notify the attorney for the United States and
the court in writing. Such notice shall specify with
particularity the nondocumentary information sought by the
defendant and the legal basis for such access.
``(c) Showing by the United States.--In any prosecution in
which the United States seeks to restrict, delete, withhold,
or otherwise obtain relief with respect to the defendant's
discovery of or access to any specific classified
information, the attorney for the United States shall file
with the court a declaration made by the Attorney General
invoking the United States classified information privilege,
which shall be supported by a declaration made by a
knowledgeable United States official possessing the authority
to classify information that sets forth the identifiable
damage to the national security that the discovery of, or
access to, such information reasonably could be expected to
cause.
``(d) Standard for Discovery of or Access to Classified
Information.--Upon the submission of a declaration of the
Attorney General under subsection (c), the court may not
authorize the defendant's discovery of, or access to,
classified information, or to the substitution submitted by
the United States, which the United States seeks to restrict,
delete, or withhold, or otherwise obtain relief with respect
to, unless the court first determines that such classified
information or such substitution would be--
``(1) noncumulative, relevant, and helpful to--
``(A) a legally cognizable defense;
``(B) rebuttal of the prosecution's case; or
``(C) sentencing; or
``(2) noncumulative and essential to a fair determination
of a pretrial proceeding.
``(e) Security Clearance.--Whenever a court determines that
the standard for discovery of or access to classified
information by the defendant has been met under subsection
(d), such discovery or access may only take place after the
person to whom discovery or access will be granted has
received the necessary security clearances to receive the
classified information, and if the classified information has
been designated as sensitive compartmented information or
special access program information, any additional required
authorizations to receive the classified information.''.
SEC. 5. NOTICE OF DEFENDANT'S INTENTION TO DISCLOSE
CLASSIFIED INFORMATION.
Section 5 of the Classified Information Procedures Act (18
U.S.C. App.) is amended--
(1) in the section heading, by inserting ``use or'' before
``disclose'';
(2) in subsection (a)--
(A) in the first sentence--
(i) by inserting ``use or'' before ``disclose''; and
(ii) by striking ``thirty days prior to trial'' and
inserting ``45 days prior to such proceeding'';
(B) in the second sentence by striking ``brief'' and
inserting ``specific'';
(C) in the third sentence--
(i) by inserting ``use or'' before ``disclose''; and
(ii) by striking ``brief'' and inserting ``specific''; and
(D) in the fourth sentence--
(i) by inserting ``use or'' before ``disclose''; and
(ii) by inserting ``reasonably'' before ``believed''; and
(3) in subsection (b), by inserting ``the use or'' before
``disclosure''.
SEC. 6. PROCEDURE FOR CASES INVOLVING CLASSIFIED INFORMATION.
Section 6 of the Classified Information Procedures Act (18
U.S.C. App.) is amended--
(1) in subsection (a)--
(A) in the second sentence, by striking ``such a hearing.''
and inserting ``a hearing and shall make all such
determinations prior to proceeding under any alternative
procedure set out in subsection (d).''; and
(B) in the third sentence, by striking ``petition'' and
inserting ``request'';
(2) in subsection (b)(2) by striking ``trial'' and
inserting ``the trial or pretrial proceeding'';
(3) by redesignating subsections (c), (d), (e), and (f), as
subsections (d), (e), (f), and (g), respectively;
(4) by inserting after subsection (b) the following:
``(c) Standard for Admissibility, Use, and Disclosure at
Trial.--(1) Classified information which is the subject of a
notice by the United States pursuant to subsection (b) is not
admissible at trial and subject to the alternative procedures
set out in subsection (d), unless a court first determines
that such information is noncumulative and relevant to an
element of the offense or a legally cognizable defense, and
is otherwise admissible in evidence.
``(2) Nothing in this subsection may be construed to
prohibit the exclusion from evidence of relevant, classified
information in accordance with the Federal Rules of
Evidence.'';
(5) in subsection (d), as so redesignated--
(A) in the subsection heading, by inserting ``Use or''
before ``Disclosure'';
(B) in paragraph (1), by inserting ``use or'' before
``disclosure'' both places that term appears;
(C) in the flush paragraph following paragraph (1)(B), by
inserting ``use or'' before ``disclosure''; and
(D) in paragraph (2)--
(i) by striking ``an affidavit of'' and inserting ``a
declaration by'';
(ii) by the striking ``such affidavit'' and inserting
``such declaration''; and
(iii) by inserting ``the use or'' before ``disclosure'';
(6) in subsection (e), as so redesignated, in the first
sentence, by striking ``disclosed or elicited'' and inserting
``used or disclosed''; and
(7) in subsection (f), as so redesignated--
(A) in the subsection heading, by inserting ``Use or''
before ``Disclosure'' both places that term appears;
(B) in paragraph (1)--
(i) by striking ``(c)'' and inserting ``(d)'';
(ii) by striking ``an affidavit of'' and inserting ``a
declaration by'';
(iii) by inserting ``the use or'' before ``disclosure'';
and
(iv) by striking ``disclose'' and inserting ``use,
disclose,''; and
(C) in paragraph (2), by striking ``disclosing'' and
inserting ``using, disclosing,''; and
(8) in the first sentence of subsection (g), as so
redesignated--
(A) by inserting ``used or'' before ``disclosed''; and
(B) by inserting ``or disclose'' before ``to rebut the''.
SEC. 7. INTERLOCUTORY APPEAL.
Section 7(a) of the Classified Information Procedures Act
(18 U.S.C. App.) is amended--
(1) by striking ``disclosure of'' both times that places
that term appears and inserting ``use, disclosure, discovery
of, or access to''; and
(2) by adding at the end the following: ``The right of the
United States to appeal pursuant to this Act applies without
regard to whether the order or ruling appealed from was
entered under this Act, another provision of law, a rule, or
otherwise. Any such appeal may embrace any preceding order,
ruling, or reasoning constituting the basis of the order or
ruling that would authorize such use, disclosure, or access.
Whenever practicable, appeals pursuant to this section shall
be consolidated to expedite the proceedings.''.
SEC. 8. INTRODUCTION OF CLASSIFIED INFORMATION.
Section 8 of the Classified Information Procedures Act (18
U.S.C. App.) is amended--
(1) in subsection (b), by adding at the end ``The court may
fashion alternative procedures in order to prevent such
unnecessary disclosure, provided that such alternative
procedures do not deprive the defendant of a fair trial or
violate the defendant's due process rights.''; and
(2) by adding at the end the following:
``(d) Admission of Evidence.--(1) No classified information
offered by the United States and admitted into evidence shall
be presented to the jury unless such evidence is provided to
the defendant.
``(2) Any classified information admitted into evidence
shall be sealed and preserved in the records of the court to
be made available to the appellate court in the event of an
appeal.''.
SEC. 9. APPLICATION TO PROCEEDINGS.
The amendments made by this Act shall take effect on the
date of the enactment of this Act but shall not apply to any
prosecution in which an indictment or information was filed
prior to such date.
______
By Mr. CARDIN:
S. 355. A bill to improve, modernize, and clarify the espionage
statutes contained in chapter 37 of title 18, United States Code, to
promote Federal whistleblower protection statutes and regulations, to
deter unauthorized disclosures of classified information, and for other
purposes; to the Committee on the Judiciary.
Mr. CARDIN. Mr. President, the current framework concerning the
espionage statutes was designed to address classic spy cases involving
persons who intended to aid foreign governments and harm the United
States. The current framework traces its roots to the Espionage Act of
1917, which made it a crime to disclose defense information during
wartime. The basic idea behind the legislation, which was upheld by the
U.S. Supreme Court as constitutional in 1919, was to stop citizens from
spying or interfering with military actions during World War I. The
current framework was formed at a time when intelligence and national
security information existed primarily in some tangible form, such as
blueprints, photographs, maps, and other documents.
Our nation, however, has witnessed dramatic changes to nearly every
facet of our lives over the last 100 years, including technological
advances which have revolutionized our information gathering abilities
as well as the mediums utilized to communicate such information. Yet,
the basic terms and structure of the espionage statutes have remained
relatively unchanged
[[Page S755]]
since their inception. Moreover, issues have arisen in the prosecution
and defense of criminal cases when the statutes have been applied to
persons who may be disclosing classified information for purposes other
than to aid a foreign government or to harm the United States. In
addition, the statutes contain some terms which are outdated and do not
reflect how information is classified by the Executive Branch today.
Legal scholars and commentators have criticized the current
framework, and over the years, some federal courts have as well. In
2006, after reviewing the many developments in the law and changes in
society that had taken place since the enactment of the espionage
statutes, one district court judge stated that ``the time is ripe for
Congress'' to reexamine them. United States v. Rosen, 445 F. Supp. 2d
602, 646, E.D. Va. 2006, Ellis, J. Nearly 20 years earlier in the
Morison case, one federal appellate judge stated that ``[i]f one thing
is clear, it is that the Espionage Act statutes as now broadly drawn
are unwieldy and imprecise instruments for prosecuting government
`leakers' to the press as opposed to government `moles' in the service
of other countries.'' That judge also stated that ``carefully drawn
legislation'' was a ``better long-term resolution'' than judicial
intervention. See United States v. Morison, 844 F.2d 1057, 1086, 4th
Cir. 1988.
As the former Chairman of the Senate Judiciary's Terrorism and
Homeland Security Subcommittee, I chaired a Subcommittee hearing on May
12, 2010, entitled ``The Espionage Statutes: A Look Back and A Look
Forward.'' At that Subcommittee hearing, I questioned a number of
witnesses, which included witnesses from academia as well as former
officials from the intelligence and law enforcement communities, about
how well the espionage statutes have been working. And since that
hearing, I have been closely and carefully reviewing these statutes,
particularly in the context of recent events. I am convinced that
changes in technology and society, combined with statutory and judicial
changes to the law, have rendered some aspects of our espionage laws
less effective than they need to be to protect the national security. I
also believe that we need to enhance our ability to prosecute spies as
well as those who make unauthorized disclosures of classified
information. We don't need an Official State Secrets Act, and we must
be careful not to chill protected First Amendment activities. We do,
however, need to do a better job of preventing unauthorized disclosures
of classified information that can harm the United States, and at the
same time we need to ensure that public debates continue to take place
on important national security and foreign policy issues.
As a result, today I am reintroducing the Espionage Statutes
Modernization Act, ESMA. This legislation makes important improvements
to the espionage statutes to make them more effective and relevant in
the 21st century. This legislation is narrowly-tailored and balanced,
and will enable the government to use a separate criminal statute to
prosecute government employees who make unauthorized disclosures of
classified information in violation of the nondisclosure agreements
they have entered, irrespective of whether they intend to aid a foreign
government or harm the United States.
This legislation is not designed to make it easier for the government
to prosecute the press, to chill First Amendment freedoms, or to make
it more difficult to expose government wrongdoing. In fact, the
proposed legislation promotes the use of Federal whistleblower statutes
and regulations to report unlawful and other improper conduct.
Unauthorized leaks of classified information, however, are harmful to
the national security and could endanger lives. Thus, in addition to
proposing important refinements to the espionage statutes, this
legislation will deter unauthorized leaks of classified information by
government employees who knowingly and intentionally violate classified
information nondisclosure agreements.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 355
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 ``The Espionage Statutes
Modernization Act of 2011''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) As of 2011, the statutory framework with respect to the
espionage statutes is a compilation of statutes that began
with Act of June 15, 1917 (40 Stat. 217, chapter 30)(commonly
known as the ``Espionage Act of 1917''), which targeted
classic espionage cases involving persons working on behalf
of foreign nations.
(2) The statutory framework was formed at a time when
intelligence and national security information existed
primarily in a tangible form, such as blueprints,
photographs, maps, and other documents.
(3) Since 1917, the United States has witnessed dramatic
changes in intelligence and national security information,
including technological advances that have revolutionized
information gathering abilities as well as the mediums used
to communicate such information.
(4) Some of the terms used in the espionage statutes are
obsolete and the statutes do not fully take into account the
classification levels that apply to national security
information in the 21st century.
(5) In addition, the statutory framework was originally
designed to address classic espionage cases involving persons
working on behalf of foreign nations. However, the national
security of the United States could be harmed, and lives may
be put at risk, when a Government officer, employee,
contractor, or consultant with access to classified
information makes an unauthorized disclosure of the
classified information, irrespective of whether the
Government officer, employee, contractor, or consultant
intended to aid a foreign nation or harm the United States.
(6) Federal whistleblower protection statutes and
regulations that enable Government officers, employees,
contractors, and consultants to report unlawful and improper
conduct are appropriate mechanisms for reporting such
conduct.
(7) Congress can deter unauthorized disclosures of
classified information and thereby protect the national
security by--
(A) enacting laws that improve, modernize, and clarify the
espionage statutes and make the espionage statutes more
relevant and effective in the 21st century in the prosecution
of persons working on behalf of foreign powers;
(B) promoting Federal whistleblower protection statutes and
regulations to enable Government officers, employees,
contractors, or consultants to report unlawful and improper
conduct; and
(C) enacting laws that separately punish the unauthorized
disclosure of classified information by Government officers,
employees, contractors, or consultants who knowingly and
intentionally violate a classified information nondisclosure
agreement, irrespective of whether the officers, employees,
contractors, or consultants intend to aid a foreign power or
harm the United States.
SEC. 3. CRIMES.
(a) In General.--Chapter 37 of title 18, United States
Code, is amended--
(1) in section 793--
(A) in the section heading, by striking ``or losing defense
information'' and inserting ``or, losing national security
information'';
(B) by striking ``the national defense'' each place it
appears and inserting ``national security'';
(C) by striking ``foreign nation'' each place it appears
and inserting ``foreign power'';
(D) in subsection (b), by inserting ``classified
information, or other'' before ``sketch'';
(E) in subsection (c), by inserting ``classified
information, or other'' before ``document'';
(F) in subsection (d), by inserting ``classified
information, or other'' before ``document'';
(G) in subsection (e), by inserting ``classified
information, or other'' before ``document'';
(H) in subsection (f), by inserting ``classified
information,'' before ``document''; and
(I) in subsection (h)(1), by striking ``foreign
government'' and inserting ``foreign power'';
(2) in section 794--
(A) in the section heading, by striking ``Gathering'' and
all that follows and inserting ``Gathering or delivering
national security information to aid foreign powers''; and
(B) in subsection (a)--
(i) by striking ``foreign nation'' and inserting ``foreign
power'';
(ii) by striking ``foreign government'' and inserting
``foreign power'';
(iii) by inserting ``classified information,'' before
``document'';
(iv) by striking ``the national defense'' and inserting
``national security''; and
(v) by striking ``(as defined in section 101(a) of the
Foreign Intelligence Surveillance Act of 1978)'';
(3) in section 795(a), by striking ``national defense'' and
inserting ``national security'';
(4) in section 798--
(A) in subsection (a), by striking ``foreign government''
each place it appears and inserting ``foreign power''; and
(B) in subsection (b)--
(i) by striking the first undesignated paragraph (relating
to the term ``classified information''); and
[[Page S756]]
(ii) by striking the third undesignated paragraph (relating
to the term ``foreign government''); and
(5) by adding at the end the following:
``Sec. 800. Definitions
``In this chapter--
``(1) the term `classified information' has the meaning
given the term in section 1 of the Classified Information
Procedures Act (18 U.S.C. App.);
``(2) the term `foreign power' has the meaning given the
term in section 101 of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1801); and
``(3) the term `national security' has the meaning given
the term in section 1 of the Classified Information
Procedures Act (18 U.S.C. App.).''.
(b) Technical and Conforming Amendment.--The table of
section for chapter 37 of title 18, United States Code, is
amended--
(1) by striking the item relating to section 793 and
inserting the following:
``793. Gathering, transmitting, or losing national security
information.'';
(2) by striking the item relating to section 794 and
inserting the following:
``794. Gathering or delivering national security information to aid
foreign powers.''; and
(3) by adding at the end the following:
``800. Definitions.''.
SEC. 4. VIOLATION OF CLASSIFIED INFORMATION NONDISCLOSURE
AGREEMENT.
(a) In General.--Chapter 93 of title 18, United States
Code, is amended by adding at the end the following:
``Sec. 1925. Violation of classified information
nondisclosure agreement
``(a) Definitions.--In this section--
``(1) the term `classified information' has the meaning
given the term in section 1 of the Classified Information
Procedures Act (18 U.S.C. App.); and
``(2) the term `covered individual' means an officer,
employee, contractor, or consultant of an agency of the
Federal Government who, by virtue of the office, employment,
position, or contract held by the individual, knowingly and
intentionally agrees to be legally bound by the terms of a
classified information nondisclosure agreement.
``(b) Offense.--
``(1) In general.--Except as otherwise provided in this
section, it shall be unlawful for a covered individual to
intentionally disclose, deliver, communicate, or transmit
classified information, without the authorization of the head
of the Federal agency, or an authorized designee, knowing or
having reason to know that the disclosure, delivery,
communication, or transmission of the classified information
is a violation of the terms of the classified information
nondisclosure agreement entered by the covered individual.
``(2) Penalty.--A covered individual who violates paragraph
(1) shall be fined under this title, imprisoned for not more
than 5 years, or both.
``(c) Whistleblower Protection.--The disclosure, delivery,
communication, or transmission of classified information by a
covered individual in accordance with a Federal whistleblower
protection statute or regulation applicable to the Federal
agency of which the covered individual is an officer,
employee, contractor, or consultant shall not be a violation
of subsection (b)(1).
``(d) Rebuttable Presumption.--For purposes of this
section, there shall be a rebuttable presumption that
information has been properly classified if the information
has been marked as classified information in accordance with
Executive Order 12958 (60 Fed. Reg. 19825) or a successor or
predecessor to the order.
``(e) Defense of Improper Classification.--The disclosure,
delivery, communication, or transmission of classified
information by a covered individual shall not violate
subsection (b)(1) if the covered individual proves by clear
and convincing evidence that at the time the information was
originally classified, no reasonable person with original
classification authority under Executive Order 13292 (68 Fed.
Reg. 15315), or any successor order, could have identified or
described any damage to national security that reasonably
could be expected to be caused by the unauthorized disclosure
of the information.
``(f) Extraterritorial Jurisdiction.--There is
extraterritorial jurisdiction over an offense under this
section.''.
(b) Technical and Conforming Amendment.--The table of
sections for chapter 93 of title 18, United States Code, is
amended by adding at the end the following:
``1925. Violation of classified information nondisclosure agreement.''.
SEC. 5. DIRECTIVE TO SENTENCING COMMISSION.
(a) In General.--Pursuant to its authority under section
994 of title 28, United States Code, and in accordance with
this section, the United States Sentencing Commission, shall
review and, if appropriate, amend the Federal Sentencing
Guidelines and policy statements applicable to a person
convicted of an offense under section 1925 of title 18,
United States Code, as added by this Act.
(b) Considerations.--In carrying out this section, the
Sentencing Commission shall ensure that the sentencing
guidelines account for all relevant conduct, including--
(1) multiple instances of unauthorized disclosure,
delivery, communication, or transmission of the classified
information;
(2) the volume of the classified information that was
disclosed, delivered, communicated, or transmitted;
(3) the classification level of the classified information;
(4) the harm to the national security of the United States
that reasonably could be expected to be caused by the
disclosure, delivery, communication, or transmission of the
classified information; and
(5) the nature and manner in which the classified
information was disclosed, delivered, communicated, or
transmitted.
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