[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

[[Page S752]]

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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