[Congressional Record (Bound Edition), Volume 150 (2004), Part 9]
[Senate]
[Pages 12415-12444]
[From the U.S. Government Publishing Office, www.gpo.gov]




        NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2005

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration of S. 2400, which the clerk will report.
  The assistant legislative clerk read as follows:

       A bill (S. 2400) to authorize appropriations for fiscal 
     year 2005 for military activities of the Department of 
     Defense, for military construction, and for defense 
     activities of the Department of Energy, to prescribe 
     personnel strengths for such fiscal year for the Armed 
     Services, and for other purposes.

  Pending:

       Reid (for Leahy) amendment No. 3292, to amend title 18, 
     United States Code, to prohibit profiteering and fraud 
     relating to military action, relief, and reconstruction 
     efforts.
       Dodd further modified amendment No. 3313, to prohibit the 
     use of contractors for certain Department of Defense 
     activities and to establish limitations on the transfer of 
     custody of prisoners of the Department of Defense.
       Reed amendment No. 3352, to increase the end strength for 
     active-duty personnel of the Army for fiscal year 2005 by 
     20,000 to 502,400.
       Warner amendment No. 3450 (to amendment No. 3352), to 
     provide for funding the increased number of Army active-duty 
     personnel out of fiscal year 2005 supplemental funding.
       Durbin amendment No. 3386, to affirm that the United States 
     may not engage in torture or cruel, inhuman, or degrading 
     treatment or punishment.


                           Amendment No. 3313

  The PRESIDING OFFICER. The pending question is the Dodd amendment No. 
3313, as further modified, on which there shall be up to 30 minutes of 
debate evenly divided.
  Mr. WARNER. I further inquire of the Chair, at the conclusion of the 
vote on the Dodd amendment, the Senator from Virginia is to be 
recognized for the purpose of laying down an amendment; am I not 
correct?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. WARNER. I yield the floor.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. DODD. Mr. President, may I be notified when 10 minutes have 
expired so as to leave a few minutes at the end of the debate?
  The PRESIDING OFFICER. The Chair will do that.
  Mr. DODD. I ask unanimous consent that my distinguished friend and 
colleague from South Carolina, Senator Lindsey O. Graham, be added as a 
cosponsor of the amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DODD. I am pleased to offer this amendment on behalf of myself, 
Senator Graham, and Senator Levin this morning. We had a very good 
debate a few days ago about this amendment. At the suggestion of my 
friend, the chairman of the Armed Services Committee, we modified the 
amendment that is now before this body. The modification, very quickly, 
deletes the prohibition on using private contractors in combat 
situations. I will not belabor the point. There are existing statutes 
that provide for such restrictions, but the suggestion of the chairman 
was that that provision was going to be a rather complicated matter to 
deal with here, so we have taken it out--it is no longer part of the 
amendment. Instead, the amendment as modified would merely ask the 
Secretary of Defense to review and report to Congress on U.S. laws and 
policies as they relate to the use of contractors by the Defense 
Department and the Uniformed Services in combat operations.
  What is still part of this amendment is the prohibition on using 
private contractors for the purposes of interrogation of prisoners. It 
would, however, give the President some flexibility in phasing in this 
prohibition by providing limited waiver authority for the use of such 
contractors in interrogations--both as translators and as actual 
interrogators. The presidential waiver for translators would be 
extended for 1 year, and for contractors acting solely as 
interrogators, the waiver would be effective for 90 days from the date 
of enactment of this legislation.
  Why do I offer this amendment? I didn't bring charts or photographs 
to the floor of the events that occurred in Abu Ghraib prison late last 
fall or early this winter. Those photographs are very disturbing and 
can create their own sense of emotion. I am not interested in doing 
that today. But suffice it to say, there is ample evidence. So today we 
know at least that interrogations were conducted by private contractors 
hired by the Department of the Interior, of all agencies, to do 
interrogations, intelligence work in Iraq and maybe elsewhere, on 
Guantanamo or Afghanistan as well. The military believes, I believe, 
and I think most of us believe that this job of interrogation

[[Page 12416]]

ought not be done by private contractors. This ought to be inherently a 
governmental function, and one that is not shopped out or outsourced, 
if you will, to others, where there is no accountability, no chain of 
command, no responsibility, and virtual immunity if they do anything 
wrong under the Uniform Code of Military Justice.
  I will cite briefly memos and directives from the Department of the 
Army strongly urging that we not contract out this function. I strongly 
agree with these opinions because, first, we obviously have suffered 
terribly in the public relations field as a result of what happened, 
and we certainly know that private contracting was part of the problem; 
and, second, with 135,000 of our troops serving in Iraq, 20,000 serving 
in Afghanistan, and others serving around the globe today, we do not 
need to have these young men, and women in many cases, be potentially 
subjected to reprisals as a result of our mismanagement of the 
interrogation process in Iraq and possibly elsewhere.
  This is an important amendment. We have all been through this 
recently. Again, I am not charting new ground. As we know, in fact, at 
hearings chaired last month by the chairman of the committee here, it 
was made very clear, especially in the testimony and comprehensive 
report of General Taguba, a number of contractors may have played 
significant roles as interrogators in the Abu Ghraib prison scandal. 
Their abusive practices have compromised our interests in Iraq, and it 
remains to be seen whether they will ever be held accountable. Military 
people can. But contractors, such as those hired by the Department of 
Interior, may be outside the scope of legal jurisdictions.
  Again, I am not the only one who believes that intelligence 
functions, particularly gathering intelligence through interrogations, 
should be carried out by Government personnel rather than contractors.
  A December 26, 2000, Department of the Army memo dealing with 
exempting Army intelligence functions from privatization came to the 
same conclusion:

       At a tactical level, the intelligence function under the 
     operational control of the Army performed by the military . . 
     . is an inherently Governmental function barred from private 
     sector performance.

  They are exactly right. It ought to be an inherently governmental 
function. Outsourcing, where there is no accountability, where you 
don't have any ability to subject them to criminal prosecution if they 
do something wrong, I think, is dangerous business. It is dangerous 
business in the intelligence area.
  The report went on to say:

       At the operational and strategic level, the intelligence 
     function performed by the military personnel and Federal 
     civilian employees is a non-inherently governmental function 
     that should be exempted from private sector performance on 
     the basis of risk to national security from relying on 
     contractors to perform this function.

  Nor was this view limited solely to the previous administration in 
2000. Thomas White, former Secretary of the Army in the current 
administration, also expressed his opposition to hiring contractors to 
question prisoners, stating in an interview that ``the basic process of 
interrogation . . . should be kept in-house, on the Army side.''
  He is right. That is exactly where it ought to be. This is dangerous 
business to go through. I was stunned to learn that the Department of 
the Interior the was actually the agency through which some of these 
contracts were awarded. No one knew to whom these contractors reported, 
what the chain of command was, or what sort of supervision there was.
  We are in a new age since 9/11. You have to get people who can speak 
the language, who know what they are doing. We are in the world of 
terrorism. The President had it right last night. There is yet no 
horizon in this war on terrorism. It is going to be here for a long 
time. We better wake up, and if we need people to speak a language then 
we ought to hire them and train them. It is almost 3 years since 9/11. 
The fact that we need to put ads in the Washington Post to find people 
who can speak Arabic is ridiculous. We ought to get about the business 
of hiring people and training them. We need interrogators. We need the 
human intelligence capacity. I am all for fancy satellites and 
technology, but if you don't have people on the ground who can talk to 
these people and understand what they are saying, your intelligence is 
going to suffer.
  Again, this practice of hiring contractors to perform interrogations 
is simply bad business. It goes beyond just the ugly photographs and 
the outrageous behavior that has cost us terribly in Iraq and elsewhere 
in our efforts at winning the hearts and minds of the Iraqi people.
  And my amendment is limited in scope. It merely says that with 
respect to interrogations, the Department of Defense would have to hire 
people within the governmental framework to do the job.
  On the translations, I will give you a year. You can use people 
outside if you want, but after a year let's get some people within the 
operations themselves who know what they are doing. The other sections 
of my amendment deal briefly with the transfer of prisoners.
  In September, it will be 3 years since the horrific events of 9/11. 
It is high time that the administration moved forward to build a 
capacity, in-house, to ensure that our intelligence gathering capacity, 
including interrogation personnel, is adequate to meet the threats that 
we confront.
  Giving the administration unlimited access to contractors by 
extending the waiver for interrogators beyond 90 days does not serve 
our national interest.
  I would remind my fellow colleagues that the world has changed 
dramatically over the past three years. Part of the current mission in 
Iraq is a larger and absolutely critical mission that we are going to 
be confronting every single day for the foreseeable future in 
Afghanistan, Saudi Arabia, Pakistan, and Spain--and the list goes on 
and on--and elsewhere around the globe. In order to be prepared for 
that war, we must have within our own governmental structure the 
expertise to garner intelligence, including intelligence gleaned 
through interrogations.
  The notion that we can simply outsource this critical responsibility 
when terrorist incidents spike the demand for interrogation skills by 
our Government seems to be the height of irresponsibility.
  We were sidetracked a bit during the debate on Monday. As I said 
earlier, the chairman made a very good point in the area of combat 
missions. It is not a clear line. So we put that aside. But on 
interrogations, this is inherently a governmental function and we 
shouldn't be contracting out that function.
  That is my point. I hope my colleagues will agree with us. I know the 
administration has some problems with it, but the fact is, let us get 
about the business of doing our job here and not endangering our own 
troops--which is what I worry about. The bottom line, one that I 
believe I share with every parent, sibling, or child who has a relative 
or a friend serving in these dangerous zones. I don't want our brave 
men and women, if they are apprehended, to go through what we saw 
happen to some of these Iraqi prisoners. These abuses put Americans at 
risk, in my view, if we don't get this business straight. I am 
determined to see that we fix this situation.
  I hope my colleagues will support this. Let me withhold the remainder 
of my time.
  Mr. WARNER. Mr. President, will the Senator engage in a colloquy with 
me?
  Mr. DODD. Certainly.
  Mr. WARNER. First, I would like to lay the predicate. The Senator has 
brought forth an important concept. He asked for a study. I am prepared 
to support the study. But I urge my colleague, as I did the other day 
on another part of the amendment--and he accepted my advice and took 
that out--we have to look at this interrogation section. There is a 
trigger mechanism, if you look at the amendment, which says in 90 days 
every one of these contractors has to discontinue their work.
  That is what it says. Am I not correct?

[[Page 12417]]


  Mr. DODD. The Senator is correct--90 days I think after the----
  Mr. WARNER. It is signed into law.
  Mr. DODD. Just interrogations.
  Mr. WARNER. Mr. President, that cripples America's intelligence 
system in the middle of a war in Afghanistan, in Iraq, and our 
operations in Guantanamo.
  How can the Senate suddenly withdraw our U.S. military interrogation 
base in the middle of a war in 90 days? There is no way in the world 
the military--there is a greater burden on the Army--can hire and train 
in this short period of time all the replacements that would be 
required if the Senator's amendment became law.
  Mr. DODD. Mr. President, first, I don't believe necessarily that the 
military doesn't have the capacity to do this. But the idea that the 
Department of the Interior is contracting out to private firms to 
conduct this function, when we have seen already the results when this 
matter gets out of hand because you have rogue elements doing it--we 
have suffered terribly as a result of this tremendous abuse that has 
gone on. I don't buy the idea that we can't get this straight. I think 
we can get it straight. There are plenty of people within the military 
services who can perform this function. And I don't put the same 
limitations on translators. I am giving a year to get that in shape.
  The idea that somehow the military shouldn't be doing this--I didn't 
make this up; this isn't made out of whole cloth. The military 
themselves, going back several years, has said that this function 
should not be performed by outside contractors.
  In fact, the most recent former Secretary of the Army said this.
  Mr. WARNER. That has been stated twice by the Senator. Those are 
facts and valid opinions. But I am looking at the very practical 
effect--that under this amendment when the President's signature goes 
on the bill, in 90 days we are out of business.
  Let me point out a few statistics. Take Guantanamo Bay: Right now we 
have 140 translators of which over 100 are contractors.
  Mr. DODD. Translators are not an issue.
  Mr. WARNER. Nevertheless, eventually they have to be taken inhouse.
  Mr. DODD. That would be over a year from today.
  Mr. WARNER. I understand that. That is the very point I wish to make. 
You give us a year in which to cure that problem, but then you go to 
the analysts and interrogators, 60 analysts of which 35 are 
contractors.
  Mr. DODD. Interrogators.
  Mr. WARNER. They are part of the system--40 interrogators of which 20 
are contractors. In 90 days, 50 percent roughly of the operation in 
Guantanamo ceases to function.
  I will tell you that practically there is no way in the world the 
military can go out and hire and recruit and put into uniform or 
civilian capacity that number of individuals.
  Mr. DODD. I don't ascribe to that. First, the analysts are not 
included; it is just the interrogators.
  The idea that you are going to have people who are immune from 
prosecution, accountable to no one, with little supervision, or 
literally none in many cases, I think is a far more inherently 
dangerous problem than the difficulty in finding 30 or 40 people within 
the military structure to perform interrogations.
  I would point out this job posting, which is from the Web site of 
CACI International, one of the companies that does interrogations for 
the Department of Defense. This is what it says you ought to be: The 
position requires a bachelor's degree, or equivalent, of 6 or 7 years 
of related experience--whatever that is--preferably in the intelligence 
field; requires a clearance, strong writing and briefing skills, with 
competency in automation research in basic software.
  This is hardly the job description of someone who is so unique that 
we can't find the personnel within our own uniformed services.
  Mr. WARNER. Mr. President, there is a problem. The Senator has 
identified it. I acknowledge it. I do not think it is as great as the 
Senator portrays it, but nevertheless there is a problem.
  What I am saying to my colleagues who are momentarily going to be 
asked to vote is that we cannot in any way possible solve it in the 90-
day period, and we are in the middle of a war. The Senator is going to 
basically dismantle 50 or more percent of our intelligence 
interrogation, and it is from these interrogations that our troops 
today are getting valuable information to protect their lives on the 
battlefronts primarily of Afghanistan and Iraq.
  I say to Members, when you come and are asked to vote, if you vote in 
support of this amendment, then I simply say you are pulling the plug 
on our intelligence system and the interrogation system and severely 
dealing them a crippling blow. It is as simple as that.
  Does my colleague acknowledge that in 90 days the interrogation is 
out of business? Am I correct?
  Mr. DODD. No. They are not out of business at all. The interrogations 
would have to be done by governmental authorities. You can bring back 
military people to do it. There are plenty of guys who can do it, if we 
put them back on active duty. This is not an overly burdensome problem.
  The question is, here we are debating the Defense authorization bill 
and we have been confronted which a huge problem that galvanized the 
world's attention only a few days ago. We know that part of the problem 
was because we had people who were not being held accountable and who 
have little or no supervision. At least we know that much already. In 
the midst of this debate, should we step up and try to do something 
about that problem?
  If the argument is that we have no in-house capacity to fill 40 or 50 
slots in Guantanamo, or maybe an equal amount in Iraq with 135,000 U.S. 
forces there and 20,000 in Afghanistan, the idea that we can't find 
people within the military services to fill 40 or 50 slots, then I 
don't accept it as a legitimate argument against this amendment.
  They may want to keep contracting and have these contractors go 
through the Department of the Interior, but that is wrong, in my view, 
and I think it is dangerous. The military has said--I am not opposed to 
what their thinking is--categorically it ought not be done there. It is 
dangerous. It causes us problems and it is causing our military 
personnel problems. It ought to be changed.
  I don't buy for a single second, with thousands of people serving in 
that theater, the idea we can't find people within our own ranks to do 
this job.
  Mr. WARNER. The simple reply is, you can't take an individual, no 
matter how many degrees they might have, in 90 days, or less, and train 
them to be an interrogator. Most of the contractors now performing this 
work are former U.S. military individuals--people who served in the 
interrogation field, primarily during the cold war when the U.S. 
military had a significant requirement for interrogators, both in the 
European theater and the Korean theater.
  I see my colleague from Alabama. Does my colleague seek recognition?
  Mr. SESSIONS. I would like to speak on this subject.
  Mr. WARNER. I yield the floor.
  Mr. SESSIONS. Mr. President, I share Chairman Warner's view.
  Mr. WARNER. I yield such time as my colleague requires. Would the 
Chair advise as to the time on both sides?
  The PRESIDING OFFICER (Mr. Chambliss). The Senator from Virginia has 
6 minutes. The Senator from Connecticut has 5 minutes 23 seconds.
  Mr. WARNER. I need a minute or two to wrap up.
  Mr. SESSIONS. I will try to keep it to 2 minutes.
  I share the concerns of the Senator from Virginia, the chairman of 
the Armed Services Committee. I note there is nothing inherently wrong 
with using trained, skilled, and capable contractors. If there is a 
problem, it may be that we did not supervise contractors well and maybe 
did not select them well.
  To prohibit the utilization of contractors to do interrogations in 
life-and-death situations is a mistake. We may need the very best 
interrogator in the United States of America to interrogate someone who 
has the ability to give information that could save thousands of lives 
in this country. To say

[[Page 12418]]

that we have to use the military personnel I believe is clearly wrong. 
A young MP who is just out of training school should not be, in my 
view, as good an interrogator as a retired MP who worked in the 
detective division of the New York Police Department or a retired CIA 
agent or retired military person who did interrogations for years and 
had experience and maybe even knows the language.
  We cannot have everyone in the military perfectly trained to do all 
these things and speak every language in the world and do these 
interrogations.
  This would be a terrible deal. We should not agree to this. We should 
not limit the military from using contract employees. If we need to 
control them better and do a better job of supervising it, I would 
support that.
  I don't want to use any more time. I know others want to speak.
  I yield the floor.
  Mr. WARNER. I simply say to colleagues we are putting on them a 
considerable burden in a very short period of time.
  I ask a very clear question of the proponent of this amendment, the 
Senator from Connecticut. In 90 days we have to dismantle a great deal 
of our interrogation--in Afghanistan, in Iraq and Guantanamo Bay--right 
as this country is in the middle of combat operations, right at a time 
when men and women of our Armed Forces, of our coalition forces, are at 
great personal risk.
  A few interrogators at this point in time are implicated in the 
tragic events in the prison situation. As the Senator well knows, the 
Armed Services Committee is probing that as quickly as we can given the 
limited time we have had. This bill has been on the floor of the 
Senate, but we had to temporarily set aside our work. We hope, once I 
consult with the leadership and members of the committee, to resume 
that. The point being, this is not the time to put a 90-day jackhammer 
that severs our ability to continue our interrogation of prisoners with 
the use of contractors. Several of them did perform in a manner that, 
hopefully, they can be brought to account in the Abu Ghraib situation, 
but hundreds of other contractors are carefully and professionally 
doing their work in interrogation. This amendment would stop that in 90 
days.
  I see the Senator from Colorado.
  Mr. ALLARD. I would like to be recognized to speak against the 
amendment.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. ALLARD. I join my colleague from Virginia and my colleague from 
Alabama in opposing the Dodd amendment.
  I will take one part of our interrogating process and look at 
Guantanamo Bay. We have 140 translators, of which 105 are contractors; 
60 analysts there, of which 35 are contractors; and 45 interrogators, 
of which 20 are contractors. If we pass this amendment, we shut off the 
interrogation process and we lose the opportunity to gather vital 
information that could be valuable to what we are doing in Iraq. We 
would lose 50 percent of intelligence. Generally, these individuals are 
well qualified, and they have been carefully vetted as contractors.
  I join my colleagues in opposing the Dodd amendment.
  Mr. WARNER. I will reserve 1 minute to follow the Senator from 
Connecticut.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. DODD. First of all, let me respond to my friend from Colorado. My 
amendment grants the President waiver authority in the case of 
translators for over a year.
  We are about to graduate from the training school for Army 
intelligence in Arizona this year 539 interrogators within the Army. 
Here we are talking about 20 or 40 positions in Guantanamo Bay of 
interrogators--but we have 539 people this year who are going to 
graduate within the Army as interrogators. We know that at least some 
of the private contractors hired through Department of Interior 
contracts for interrogations are not well trained. A bachelor of arts 
degree will get you a job as interrogator. This situation is a mess. We 
know it is a mess. We have 539 people--double the number from last 
year--graduating this year. Why are we continuing a system that does 
not work where the Army themselves have said, stop it? We need to 
listen and stop it.
  One of the most outrageous examples is the effort in Iraq. An 
outrageous situation occurred just days ago because the system has 
fallen apart. Do not tell me we will lose our capacity to interrogate 
people. That is hyperbole when you have 539 people about to graduate in 
addition to the ones we have in uniform today to do the job.
  We know that having private contractors participate in interrogations 
is a problem. The Army has said that it is a problem. The most recent 
Secretary of the Army said it is a problem, and to stop it. The 
question is, will we do it here, today? Do we understand what happened 
here just a few days ago? Do we understand the problems it has caused?
  A recent public opinion poll by the Coalition Provisional Authority 
in Iraq shows us that a majority of Iraqis believe that all Americans 
conduct themselves in the way they saw in the photographs taken at Abu 
Ghraib. But that is not us.
  I know people in uniform do a better job than someone who has been 
plucked off the street under a contract by the Department of Interior 
to do the job of intelligence. This is intelligence capacity. You do 
not outsource and farm that out to an unaccountable contractor with 
little or no experience in interrogations. Don't Members understand 
what happened here a few days ago, how much trouble our country is in?
  We have 539 people about to graduate in the military services to 
conduct interrogations, and you are telling me we do not have enough 
and we cannot train people in uniform to do the job? I don't believe 
it. The American people do not, the international community does not.
  This is not a complicated amendment. Let's wake up.
  The PRESIDING OFFICER. The Senator has 2 minutes 49 seconds 
remaining.
  Mr. DODD. I reserve the remainder of my time.
  Mr. McCAIN. Mr. President, I am voting today in opposition to Senator 
Dodd's amendment, No. 3313 that would prohibit the Department of 
Defense from using contractors to carry out certain activities, mostly 
related to interrogations. While I believe that this amendment would 
not solve the problems so vividly illustrated by the Abu Ghraib prison 
abuses, there should be no doubt that the issue it seeks to address is 
extremely serious. We are all concerned about the grave misconduct of 
anyone involved in interrogations of Iraqi detainees. The individuals 
who committed atrocities have marred the reputation of our country and 
have made the lives of American personnel in Iraq more dangerous and 
difficult.
  It is essential to ensure that there is proper oversight when 
employing contractors in interrogations or any other military-related 
function. There must also be clear rules for bringing to justice those 
who violate our laws or treaty obligations. And, ultimately, I believe 
that interrogations and other functions should be conducted by 
uniformed personnel, working directly for the United States government 
and subject to the web of rules that governs military personnel.
  While this should be our ultimate goal, I am concerned that this 
amendment would bring to a halt a number of critical functions 
currently carried out by contractors. The reality is that the U.S. 
armed forces are currently dependent on contractor support to carry out 
their missions, including interrogations. The Army now has 
approximately 500 military interrogators, a number far below the number 
needed to meet our requirements in Afghanistan, Iraq, and elsewhere. 
Over the next five years, the number of trained interrogators will grow 
to over 1,200, but in the meantime, we rely on contractors to make up 
the difference. In addition, over 50 percent of interrogator, 
interpreter, and analyst positions at Guantanamo Bay are currently 
filled by

[[Page 12419]]

contractors. This amendment would cripple intelligence gathering 
operations there.
  The abuses at Abu Ghraib prison did not occur only at the hands of 
civilian contractors--soldiers have been implicated as well. It is 
critical to ensure accountability for everyone who may have been 
involved, and prevent any reoccurrence of such abuses. Throughout the 
hearings in the Senate Armed Services Committee and in my review of the 
annexes and documents in the Taguba Investigation, I have observed a 
lack of sustained focus on the basic principles of leadership at Abu 
Ghraib. While I believe that immediately prohibiting the use of 
contractors is not the way to proceed, we need to look comprehensively 
at a number of facets of our military operations, including the long-
term use of contractors, failures of leadership, and the overall size 
of our armed forces.
  The PRESIDING OFFICER. Who yields time?
  Mr. WARNER. Mr. President, I ask my colleague a question. This 
graduating class to which the Senator refers, am I not correct it is 
enlisted and 18- to 20-year- olds?
  Mr. DODD. All I have here is that the Pentagon has asked the school 
to boost its output dramatically and expects to graduate 539 
interrogators this year, up from 237 in 2003.
  Mr. WARNER. I say to my colleague, there are basically young enlisted 
men with no field experience, in no way a comparison to the seasoned 
cadre of contractors now performing this invaluable service.
  I wish to move to table, but I will not do it until my colleague has 
the opportunity.
  Mr. DODD. Does my colleague from South Carolina want to take 15 
seconds?
  Mr. GRAHAM of South Carolina. I appreciate the Senator yielding.
  I saw Senator Dodd this morning at breakfast. I am sympathetic to 
what he was trying to do. I said, put me down. I did not look at the 
substance. I apologize. The Senator is absolutely right in what he is 
trying to do.
  I agree with the chairman that these people coming out of school are 
not ready to perform this work. But I promise the Senator from 
Connecticut you will have a Republican ally if we have a transition 
period that is more reasonable--if not on this bill, we will do it some 
other time. It bothers me greatly that our interrogation system is 
being outsourced. We do not know who is interrogating the people in 
prison because we do not know who they are and who they answer to.
  I apologize to the Senator from Connecticut for not being able to 
live up to my word. I told him I would support the amendment, but I did 
not look at the amendment. I will never do that again. However, I do 
want to help--if not on this bill, we will do it soon.
  Mr. DODD. Mr. President, I thank my colleague.
  I yield 30 seconds to my distinguished ranking member.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, I commend the Senator from Connecticut. I 
think this amendment is essential if we are going to make a statement 
about who is going to do the interrogating of prisoners. We are bound 
by treaties, and when these treaties are ignored, this country is 
damaged.
  We cannot have contractors where there is no accountability. You can 
fire a governmental employee. You can demote a governmental employee. 
You can discharge someone who is in the military who is doing the 
interrogating. When a contractor does this, there is no accountability 
except criminal law with all of its difficulties.
  An Army memorandum dated December 26, 2000, that is still in effect 
today, made the express determination that gathering tactical 
intelligence is an inherently governmental function. According to our 
law, ``Contracts shall not be used for the performance of inherently 
governmental functions.''
  We must make a critically important statement here today: We are 
going to hold people accountable for the kind of abuse that occurred. 
The only way you can do that is by having governmental employees--
either uniformed or civilian--carry out these interrogations.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Now, Mr. President, I inquire of the desk, I think the 
other side has slightly gone over their time. I wonder if we might 
accommodate the chairman of the Intelligence Committee and ask that he 
be permitted to speak for 2 minutes.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, I have no objection to that. We have a 
little more time on our side. But I ask unanimous consent that Senator 
Dodd have 2 minutes to close following Senator Roberts.
  The PRESIDING OFFICER. Is there objection?
  Mr. WARNER. Reserving the right to object, and that the Senator from 
Virginia be recognized for the purpose of the tabling motion following 
Senator Dodd.
  Mr. REID. Of course.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator from Virginia will have 2 minutes and the Senator from 
Connecticut will have 2 minutes.
  Mr. WARNER. Mr. President, I yield my 2 minutes to the Senator from 
Kansas.
  The PRESIDING OFFICER. The Senator from Kansas is recognized.
  Mr. ROBERTS. Mr. President, I thank my distinguished chairman.
  I rise to join the senior Senator from Virginia in opposing the Dodd 
amendment. I agree with the concern raised by the Dodd amendment, but 
let me point out that, as far as I am aware, no committee has held a 
hearing on how to lessen our reliance on contractors. Our armed 
services and our other agencies do rely very heavily on contractors.
  The distinguished chairman has held three open hearings in regard to 
all of the incarceration problems and the problems that have been so 
heavily publicized. We have had three hearings in the Intelligence 
Committee that have been closed. We are going to follow up with a 
report by General Fay and others. In the Intelligence Committee, we 
have asked for the legal memoranda from the Justice Department on this 
whole issue.
  I think this amendment attempts to prejudge the important work we 
would like to do on issues that are related to contractors and also 
detainees; yes, the military police; yes, the military intelligence.
  Now, let's not forget that while some contractors--or for that 
matter, MPs, or military personnel--have been highly publicized in 
actions that nobody wants to see, contractors are saving lives right 
now in Iraq and Afghanistan, and they are giving their lives in the war 
on terrorism. So the problems that have come to our attention, it seems 
to me, my colleagues, are not necessarily inherent simply to 
contracting, but they are resulting from very poor management and also 
supervision.
  We can address the problems as raised by the distinguished Senator 
from Connecticut, but we ought to do it in the right way. I do not 
think the Senate should act hastily on an important area. We are on top 
of it. We are conducting oversight.
  So I must oppose this amendment and urge other Members to do the 
same.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Mr. President, I thank my distinguished colleague.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. DODD. Mr. President, I think I have made the case. I will just 
summarize it for you here.
  Since September 11, we have been in a different world. Developing our 
capacity and our ability to conduct interrogations, to be able to 
understand the languages of other peoples so we understand what is 
going on, is critically important.
  And our ability to have inhouse, within our military services, the 
capacity to conduct one of the most important functions--that is, to 
conduct interrogations and gather intelligence that protects our men 
and women in uniform--should not be outsourced to

[[Page 12420]]

people whose major qualification is a bachelor of arts degree.
  These young people who are being trained in the military may be 
young, but they are trained interrogators. That is what we ought to be 
doing. We have 539 new ones, in addition to the ones who exist today, 
coming out of school soon. We ought to be saying--as the military has 
asked us now for 4 years--do not contract this out. This 
administration's most recent Secretary of the Army said: Do not 
contract this out.
  This ought to be an inherently governmental function: to conduct 
interrogations, to gather intelligence, to protect our men and women in 
uniform, and to advance our cause. The idea, somehow, that this is 
going to slow us down or make us incapable of doing our job is 
foolishness. We all know what is going to happen. If we have a partisan 
debate here that rejects the idea that we ought to have an in-house 
capacity in intelligence areas, then the Army, or some in the military, 
will read that as a signal that they can continue doing what they are 
doing.
  That is dangerous, in my view, dangerous when you have a Department 
of the Interior agency actually doing the contracting out to private 
companies, where the desired capability, according to their own Web 
site, is not much more than a bachelor of arts degree. That is it.
  It is the 21st century. The war is on terrorism. Let's wake up. I 
urge my colleagues to support the amendment and reject the tabling 
motion.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Mr. President, I simply say, this is not a vote or debate 
on a partisan issue. We both feel this issue has to be corrected. I 
simply plead for reasonable time within which to do it, hopefully, to 
give greater security to our fighting men and women.
  Mr. President, I move to table the amendment.
  Mr. DODD. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER (Mr. Cornyn). Is there a sufficient second?
  There appears to be a sufficient second.
  The question is on agreeing to the motion.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. REID. I announce that the Senator from New Mexico (Mr. Bingaman), 
the Senator from North Carolina (Mr. Edwards), and the Senator from 
Massachusetts (Mr. Kerry) are necessarily absent.
  The PRESIDING OFFICER (Mr. Graham of South Carolina). Are there any 
other Senators in the Chamber desiring to vote?
  The result was announced--yeas 54, nays 43, as follows:

                      [Rollcall Vote No. 118 Leg.]

                                YEAS--54

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Campbell
     Chafee
     Chambliss
     Cochran
     Coleman
     Collins
     Cornyn
     Craig
     Crapo
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Kyl
     Lott
     Lugar
     McCain
     McConnell
     Miller
     Murkowski
     Nelson (FL)
     Nickles
     Roberts
     Rockefeller
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner

                                NAYS--43

     Akaka
     Baucus
     Bayh
     Biden
     Boxer
     Breaux
     Byrd
     Cantwell
     Carper
     Clinton
     Conrad
     Corzine
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Graham (FL)
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Murray
     Nelson (NE)
     Pryor
     Reed
     Reid
     Sarbanes
     Schumer
     Stabenow
     Wyden

                             NOT VOTING--3

     Bingaman
     Edwards
     Kerry
  The motion was agreed to.
  Mr. WARNER. I move to reconsider the vote and move to lay that motion 
on the table.
  The motion to lay on the table was agreed to.
  Mr. WARNER. Mr. President, I will suggest the absence of a quorum. I 
wish to advise Senators we are making progress. We are working out a UC 
request right now, and I hope to resume the bill very shortly.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. WARNER. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Ms. Murkowski). Without objection, it is so 
ordered.
  Mr. WARNER. Madam President, the UC request is still under 
consideration. Very clear and forthright efforts are going forward on 
both sides. But in order to proceed on the bill, I ask unanimous 
consent that we turn to the Senator from Illinois, who will speak for a 
few minutes, and then it is my understanding a voice vote will be 
acceptable on his amendment. Following the adoption of that amendment, 
we will turn to the distinguished Senator from Kentucky for the 
McConnell-Bunning amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 3386

  Mr. DURBIN. Madam President, I ask at this point for consideration of 
amendment No. 3386.
  The PRESIDING OFFICER. That amendment is pending.
  Mr. DURBIN. Thank you very much, Madam President.
  Madam President, I thank the chairman of the committee, Senator 
Warner of Virginia, and my close friend and colleague on the Democratic 
side, Senator Carl Levin of Michigan, for their support of this 
amendment.
  I think this amendment comes at the right moment in history. All 
across the world, many who are our friends and those who are not 
question whether the United States is abandoning its time-honored 
commitment to oppose torture, cruel, inhuman, and degrading treatment 
of detainees and prisoners.
  The scandal at Abu Ghraib touched the heart of every American because 
it sent entirely the wrong message about the values of this country. We 
are not a country that will look the other way when it comes to this 
sort of horrific treatment. This amendment is a reaffirmation of our 
statement as Americans that we are committed, as every administration 
has been going back to President Abraham Lincoln, to oppose torture and 
the kind of inhuman conduct and treatment that we saw at Abu Ghraib 
prison.
  I think this amendment also makes it clear to the Department of 
Defense that we want them to take this seriously, to establish 
guidelines consistent with our Constitution, with the laws of the land, 
and with the treaties that have been signed by Presidents, Democrat and 
Republican alike. These guidelines will be clear signals for every 
member of the U.S. military in terms of acceptable conduct when it 
comes to the interrogation and treatment of detainees.
  The third step in this amendment says that any violations that are 
noted by the Department of Defense will be reported to Congress 
consistent with national security. Should there be a circumstance where 
classified or secret information would jeopardize the security of this 
country, it can be reported in that context to the appropriate 
committee and in no way diminish the security of this Nation.
  I hope this overwhelming support for this amendment at this moment in 
time will say to those of us across America who feel it is important to 
send this message, and to those listening around the world, that the 
United States still stands strong by its commitments to oppose torture 
and the cruel and inhuman and degrading treatment of prisoners and 
detainees.
  I thank the Senator from Virginia for his cooperation in this regard. 
I thank the Senator from Michigan for cosponsoring this along with 
Senator Specter of Pennsylvania.
  Madam President, I ask that the Senate, at this point, accept the 
amendment which I have offered.
  The PRESIDING OFFICER. The Senator from Virginia.

[[Page 12421]]


  Mr. WARNER. Madam President, the Senator from Illinois and myself and 
others were here well into the night last night as the Senator gave a 
very detailed dissertation on this subject.
  I find the amendment basically recites this administration's policy. 
The unambiguous policy of this and preceding administrations is to 
comply with and enforce this Nation's obligations under international 
law. These obligations are embedded in American domestic law, including 
the Uniform Code of Military Justice, which explicitly incorporates the 
law of war.
  President Bush has recently stated:

       We are a nation of law. We adhere to laws.

  Secretary Rumsfeld, on June 13, stated:

       There is no wiggle room in my mind or the President's mind 
     about torture. That is not something that's permitted under 
     the Geneva Conventions or the laws of the United States. . . 
     . It's required that people in custody be treated in a humane 
     way.

  So I think it is very appropriate that we do the codification, as the 
Senator recommends. I am hopeful that in the conference status Senator 
Levin and I can work to incorporate basically this amendment.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Madam President, first, let me congratulate our good 
friend from Illinois for his leadership and determination to offer an 
amendment which will reflect our best instincts, our best values and 
our laws, both domestic and international laws to which we have 
subscribed. This amendment reaffirms the military's high standards, 
which are embodied in the Army's own field manual. Army regulations, 
which are cited in the ``findings'' sections of this amendment, 
explicitly require that all prisoners will receive humane treatment. 
They prohibit, among other things, torture and all cruel and degrading 
treatment.
  The high standards in the manual, which are reinforced by this 
amendment, protect American soldiers. It is not just the right thing; 
it is not just representing our own values. This protects American 
soldiers. If we lower our standards, it is only going to encourage 
others to engage in the torture or mistreatment of American prisoners 
of war in enemy custody.
  The reaffirmation of our commitment to treat detainees humanely 
preserves our ability to demand full protections for American prisoners 
of war. This amendment is a clear way of reaffirming to the American 
people and to the world that the United States recognizes it is legally 
bound by international agreements. Indeed, we have promoted, we have 
been the leader in producing many of those international agreements 
relative to torture. We are going to comply with those obligations. 
There is one rule that applies to all. It applies to us. It applies to 
every other country. And we accept--indeed, we promote and proclaim--
the wisdom of that rule.
  I congratulate the Senator from Illinois.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Madam President, I ask unanimous consent that Senators 
Levin, Specter, Feinstein, Leahy, and Kennedy be added as cosponsors of 
the amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Madam President, I urge adoption of the amendment.
  The PRESIDING OFFICER. Is there further debate on the amendment? If 
not, the question is on agreeing to amendment No. 3386.
  The amendment (No. 3386) was agreed to.
  Mr. DURBIN. Madam President, I move to reconsider the vote.
  Mr. LEVIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 3438

  The PRESIDING OFFICER. The Senator from Kentucky is recognized.
  Mr. Bunning. Madam President, I send an amendment to the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Kentucky [Mr. Bunning], for Mr. McConnell, 
     for himself and Mr. Bunning, Mr. Bingaman, Mr. Grassley, Mrs. 
     Clinton, Mr. Domenici, Ms. Cantwell, Mr. Voinovich, Mr. 
     Schumer, Mr. Alexander, Mr. Kennedy, Ms. Murkowski, Mrs. 
     Murray, Mr. DeWine, and Mr. Talent, proposes an amendment 
     numbered 3438.

  Mr. BUNNING. Madam President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The amendment is printed in today's Record under ``Text of 
Amendments.'')
  Mr. BUNNING. Madam President, I rise today to offer an amendment 
cosponsored by Senator Bingaman and 16 other Senators including 
Senators Grassley, Clinton, Domenici, Kennedy, Stevens, Cantwell, 
Voinovich, Schumer, Alexander, Murkowski, Murray, DeWine, Talent, 
Durbin, Bond, and Feinstein.
  This amendment will fix the problems with the Department of Energy's 
compensation program for sick and injured cold-war workers at Energy 
sites throughout the country.
  Since the end of World War II, workers at Department of Energy sites 
across the country helped our Nation face threats from our enemies by 
creating and maintaining our Nation's nuclear weapons.
  Many of these workers sacrificed their health and safety and were 
exposed to harms unknown at the time in their work to preserve our 
freedoms.
  In 2000, as part of the DOD authorization bill, Congress enacted the 
Energy Employee Occupational Illness Compensation Act.
  This act was intended to give timely and reasonable compensation to 
Department of Energy employees suffering from diseases caused by 
working in the nuclear weapons program.
  This program was split into two parts.
  Subtitle B of the program is run by the Department of Labor for those 
workers with diseases from radiation and beryllium; and
  Subtitle D of the program is currently run by the Department of 
Energy for those workers made ill from toxic substances.
  Subtitle B of the program has been running well. The Department of 
Labor has completely processed more than 95 percent of the 54,000 cases 
it has received.
  Subtitle D of the program, however, is completely broken and the 
Department of Energy has done an abysmal job running it.
  For almost 4 years now, the Department of Energy has failed to 
process and pay claims of workers who were made ill by their work.
  The Energy Committee has held 3 hearings on this issue which revealed 
the DOE's failure at administering this program. I should note that 
both the chairman and the ranking member of the Energy Committee are 
cosponsors of this amendment.
  GAO has also studied this issue and found the DOE's performance 
subpar.
  More than 24,000 workers or survivors have filed claims with the DOE 
for compensation for their illnesses.
  DOE has now received $95 million for this program from Congress and 
only four claims have been paid.
  Further, the program under the DOE has an uncertain process for 
compensating workers. Even if a worker is found to have an eligible 
claim, DOE has not identified an entity for all claimants who will pay 
those claims and serve as a ``willing payer.''
  DOE's miserable job with this program is particularly troubling 
because of the Kentucky workers at the Paducah gaseous diffusion plant, 
where the uranium shipped to sites throughout the country was refined.
  Under DOE's program, out of almost 3,000 former Paducah workers who 
have filed for compensation for their illnesses. Zero workers have 
received any compensation for their illnesses.
  The Department of Energy's current track record for slow processing 
of claims makes me believe that it lacks the capability to handle the 
compensation program effectively.
  The amendment transfers subtitle D claims processing operations from 
the Department of Energy to the Department of Labor, who is currently 
handling thousands of similar claims under subtitle B of the program.

[[Page 12422]]

  The Department of Labor is one of the largest and most efficient 
claims operations in the country.
  Payments will be made directly by DOL to the worker or survivor. This 
solves the current issue of no willing payer for all eligible claims.
  The funds continue to be subject to annual appropriations as they 
currently are today.
  CBO anticipates only minor costs associated with the transfer of the 
program to DOL.
  This amendment fulfills the promise that Congress made to DOE workers 
in 2000 to provide payment and benefits for their illnesses due to 
toxic substances.
  Many of these workers are dying and should not have to wait any 
longer for the Department of Energy to get its act together to process 
and pay the valid claims in a timely manner.
  The current DOE program's lackluster performance is not what Congress 
envisioned when it passed this act in 2000.
  It is imperative that we protect those workers who risked their 
health and safety to help us win the cold war.
  I urge you to support this amendment and I yield the floor.
  The PRESIDING OFFICER. The Senator from New York.
  Mrs. CLINTON. Madam President, I rise to speak in strong support of 
the Bunning-Bingaman amendment, of which I am a proud cosponsor.
  At the outset, I want to thank Senator Bunning and Senator Bingaman 
for their leadership and hard work on this amendment, and in bringing 
this to the floor. I also want to thank Senator Grassley, Senator 
Domenici and the many other members who have worked on this amendment. 
The full list of cosponsors is a long, bipartisan list: Bunning, 
Bingaman, Grassley, Clinton, Domenici, Cantwell, Voinovich, Schumer, 
Alexander, Kennedy, Murkowski, Murray, DeWine, Feinstein, Talent, 
Durbin, Stevens, and Bond.
  The purpose of our amendment is simple: We're here to help fulfill 
the promise that Congress made 4 years ago to some of our Nation's cold 
warriors. In 2000, thanks to the leadership of Senators Voinovich, 
Kennedy, and many others, Congress passed the Energy Employees 
Occupational Illness Compensation Act as part of the FY 2001 Defense 
Authorization Act. That law was both a recognition of the Government's 
responsibility for exposing energy program workers to deadly radiation, 
and a promise that the Government would provide timely assistance and 
compensation to workers who were harmed by exposure to radiation and 
other toxic substances.
  I think it is worth briefly revisiting some of the findings of that 
2000 act, because I think it sets the context for this amendment. The 
findings of that act stated:

       Since the inception of the nuclear weapons program and for 
     several decades afterwards, a large number of nuclear weapons 
     workers at sites of the Department of Energy and at sites of 
     vendors who supplied the Cold War effort were put at risk 
     without their knowledge and consent for reasons that, 
     documents reveal, were driven by fears of adverse publicity, 
     liability, and employee demands for hazardous duty pay.
       Many previously secret records have documented unmonitored 
     exposures to radiation and beryllium and continuing problems 
     at these sites across the Nation, at which the Department of 
     Energy and its predecessor agencies have been, since World 
     War II, self-regulating with respect to nuclear safety and 
     occupational safety and health. No other hazardous Federal 
     activity has been permitted to be carried out under such 
     sweeping powers of self-regulation.
       The policy of the Department of Energy has been to litigate 
     occupational illness claims, which has deterred workers from 
     filing workers' compensation claims and has imposed major 
     financial burdens for such employees who have sought 
     compensation. Contractors of the Department have been held 
     harmless and the employees have been denied workers' 
     compensation coverage for occupational disease.
       Over the past 20 years, more than two dozen scientific 
     findings have emerged that indicate that certain of such 
     employees are experiencing increased risks of dying from 
     cancer and non-malignant diseases. Several of these studies 
     have also established a correlation between excess diseases 
     and exposure to radiation and beryllium.
       To ensure fairness and equity, the civilian men and women 
     who, over the past 50 years, have performed duties uniquely 
     related to the nuclear weapons production and testing 
     programs of the Department of Energy and its predecessor 
     agencies should have efficient, uniform, and adequate 
     compensation for beryllium-related health conditions and 
     radiation-related health conditions.

  Although the findings of the 2000 act still stand, its promise of 
efficient, uniform and adequate compensation simply has not been met. 
That is what this amendment is about--Congress needs to make good on 
the promise it made in 2000.
  Before I describe the amendment in detail, I want to make it clear 
that this amendment is a compromise. It does not contain everything 
that I would have liked to include, and I know that it reflects 
compromises on both sides. But there is no question in my mind that it 
will help workers in New York, and virtually everywhere else that our 
nuclear weapons production facility workers are found, and therefore I 
strongly support it.
  As Senator Bunning has described, Subtitle D of the 2000 act required 
DOE to review evidence to determine if a worker's illness was caused by 
exposure to toxic substances in their DOE work. Claimants with positive 
findings from the DOE physician panels were to be assisted by DOE in 
filing for and receiving State workers' compensation benefits due to 
them.
  Processing of claims by DOE has been extremely slow. In 4 years, only 
3 percent of claims have been processed by DOE. Eighty percent of 
subtitle D claims are languishing in the DOE system at the very 
earliest stages of development or with no work begun on them at all. 
There have been three Senate hearings in recent months examining the 
DOE's failed operation of Subtitle D of the EEOICPA program. GAO has 
studied DOE's efforts under subtitle D and found significant problems 
with both DOE's claims review process and DOE's ability to pay valid 
claims.
  The bottom line is that after 4 years and more than $90 million in 
administrative funding, DOE admits that they have only provided 
compensation to four claimants of the more than 24,000 that have 
applied for assistance under the Subtitle D program. Our amendment 
addresses this problem by transferring claims processing operations to 
the Department of Labor, one of the largest and most efficient claims 
operations in the country. DOL is already processing thousands of 
similar claims under Subtitle B of EEOICPA and has already processed 
more than 90 percent of their claims. Our amendment assures that 
benefits due to workers or survivors will be paid according to the 
State laws covering the worker or survivor. The payments will be made 
directly by DOL to the worker or survivor. Benefits will be paid with 
appropriated funds, just as they would have been had DOE performed as 
expected. The Department of Labor's operation of this program is likely 
to be significantly more efficient and less expensive than DOE's 
current claims processing operation.
  Although I would have preferred to see a uniform benefit established 
under subtitle D in this amendment, I believe that moving the subtitle 
D program to the Department of Labor will be a very significant 
improvement.
  The amendment also corrects a significant problem associated with 
subtitle B of the 2000 Act. Under subtitle B of the Energy Employees 
Occupational Illness Compensation Program Act, workers are eligible for 
a payment of $150,000 and medical coverage for expenses associated with 
the treatment of certain illnesses resulting from exposure to radiation 
at atomic weapons plants. This part program is administered by the 
Department of Labor, and though its administration has been far better 
than the subtitle D program administered by DOE, it has had its share 
of problems as well. One of the problems is that workers who became 
sick from working in contaminated atomic weapons plants after weapons 
production ceased are not eligible to apply for benefits under subtitle 
B of the Act.
  Recognizing that this was a potential oversight in the 2000 act, 
Congress directed the National Institute of Occupational Safety and 
Health to study the issue and report back to Congress. In 2003, NIOSH 
finished its study, entitled ``Report on Residual Radioactive

[[Page 12423]]

and Beryllium Contamination in Atomic Weapons Employer and Beryllium 
Vendor Facilities.'' The report concluded potential for significant 
residual radioactive contamination existed in many of these plants for 
years and decades after weapons production ceased, posing a risk of 
radiation-related cancers or disease to unknowing workers.
  In fact, the report found that: 97, 44 percent, covered facilities 
have potential for significant residual radioactive contamination 
outside of the periods in which atomic weapons-related production 
occurred; 88, 40 percent, such facilities have little potential for 
significant residual radioactive contamination outside of the periods 
in which atomic weapons-related production occurred; and 34, 16 
percent, such facilities have insufficient information to make a 
determination.
  In my State of New York, 16 of 31 covered facilities were found to 
have the potential for significant contamination, 10 had little 
potential for significant contamination, and 5 of the 31 had 
insufficient information. In other words, more than half of the New 
York Atomic Weapons Employer Facilities in New York were contaminated 
after weapons production ceased. As a result, workers were exposed to 
radiation, and deserve to be eligible for benefits under EEOICPA.
  But this is not just a New York issue. The 97 facilities where NIOSH 
found the potential for significant residual radioactive contamination 
outside the periods during which weapons-related production are spread 
across 16 States. I want to briefly list these States for the benefit 
of my colleagues. They are California, Connecticut, Florida, Illinois, 
Indiana, Kansas, Massachusetts, Maryland, Michigan, Missoiuri, New 
Jersey, New York, Ohio, Pennsylvania, Tennessee, and Texas.
  Once the NIOSH report came out, it was clear that the law needed to 
be changed. The fact is that many of the facilities remained 
contaminated after weapons production ceased, and workers continued to 
be unwittingly exposed to radiation. That is why I introduced the 
Residual Radioactive Contamination Compensation Act, RRCCA, earlier 
this year, and I am pleased that with some modifications, it has been 
incorporated into this amendment.
  The most important change that this provision will accomplish is that 
it will provide eligibility for benefits under subtitle B to workers 
who were employed at facilities where NIOSH has found potential for 
significant radioactive contamination. This just means that these 
workers will be eligible to apply for benefits like the workers who 
were exposed to radiation during weapons production. We are not 
automatically granting them benefits. We are just saying that they 
ought to be eligible to apply. And that is only fair.
  In addition to expanding eligibility to workers employed at 
facilities where NIOSH has found potential for significant radioactive 
contamination, the amendment would require NIOSH to update the list of 
such facilities by 2006. This addresses the fact that there was 
insufficient information for NIOSH to characterize a number of sites in 
its 2003 report.
  As I pointed out earlier, fixing this so-called ``residual 
contamination'' oversight in the 2000 act will be very helpful to a 
small number of deserving workers in my State, particularly in western 
New York. And it will be similarly helpful to workers in the other 15 
States that I mentioned.
  Due to the efforts of Senator Schumer, the amendment would also 
establish a center in western New York to help people navigate the 
claim system. I want to applaud his work on this provision which will 
also be extremely helpful to New Yorkers. These are steps forward, and 
paired with the changes to the workers compensation portion of the 
program that Senator Bunning has outlined, represent significant 
improvements.
  Before I close, I want to make several additional points.
  First, this is a modest amendment. The Congressional Budget Office 
estimates that making workers who were exposed to residual 
contamination eligible for benefits under subtitle B of the act, as I 
have described, will cost only $2.9 million per year over 10 years. The 
changes to subtitle D, the workers' compensation component of the 
program, are also relatively inexpensive. CBO anticipates the program 
will need an appropriation of an additional $2 million in FY 05 from 
the current program to pay for these changes, and that annual costs in 
future years will be on the order of $25 million per year annual costs. 
This is very close to the current scored amount for this portion of the 
program. All of these costs are fully offset in the amendment. This is 
a very small price to pay to help fulfill the promise that Congress 
made to weapons workers in 2000. It is not everything that I and others 
involved in the negotiations would have wanted, but it will make a 
significant difference.
  Finally, I note that last week we celebrated the life and service of 
Ronald Reagan. Many of the tributes to President Reagan focused on his 
role in ending the cold war. Ronald Reagan was a commander in chief in 
that war--one of the last in a line of commanders in chief that 
stretched back to the end of World War II. As we all know, the cold war 
was a different kind of war--one that relied on deterrence, the 
credible threat of a massive retaliatory attack by the U.S. In a very 
real sense, the foot soldiers of that cold war included the men and 
women who toiled in the weapons production related facilities run by 
DOE and its contractors. These people were true cold war heroes, 
working in hazardous conditions, and in some cases, paid a heavy price 
in terms of their health. We owe it to them to fix the glaring flaws in 
the Energy Employees Occupational Illness Compensation Program.
  As the Senator from Kentucky explained, the purpose of the program in 
2000 was to remedy and provide compensation for workers who had been 
the warriors during the cold war. It was not a hot war. It was a cold 
war.
  One of the commitments made by our Nation in passing the legislation 
in 2000 was to recognize our responsibility to workers who were exposed 
to radiation and to help them with medical and living expenses all 
these years later. One of the problems is that workers who became sick 
from working in contaminated atomic weapons plants or their 
contractors, after weapons production ceased, were not eligible to 
apply for benefits under the act. Recognizing that this was a potential 
oversight, the Congress directed the National Institute of Occupational 
Safety and Health to study this issue and report back to Congress.
  In 2003, NIOSH--the national institute--submitted a report entitled 
``Report on Residual Radioactive and Beryllium Contamination in Atomic 
Weapons Employer and Beryllium Vendor Facilities.'' That is a long way 
of describing that the NIOSH investigators found that some of the 
plants people have worked in were contaminated for years after the 
actual weapons production ceased or after the actual components for the 
weapons production in the contractor's plant ceased. The report 
concluded there was a potential for significant residual radioactive 
contamination that posed a risk of radiation-related cancers or 
diseases to unknowing workers. In fact, the report found that 44 
percent or 97 of the facilities that fell into the category of being 
potentially residually contaminated did have evidence of such 
contamination; 88 such facilities have little potential for such 
contamination; 34 had insufficient information on which to base a 
determination.
  In New York, 16 of 31 facilities that could have been considered 
residually contaminated were found to have significant contamination. I 
am not satisfied with the NIOSH findings because I think we now know 
more about where to look for and how to discover this residual 
contamination. The bottom line is that, even under the NIOSH report of 
2003, we had workers in New York who were found to have been exposed to 
radiation and beryllium because of the work they did for our country 
through the contracting in order to produce the weapons needed in the 
cold war.
  This is not just a New York issue, obviously. There are 16 States 
where this residual contamination has been found.

[[Page 12424]]

So out of the NIOSH report it became clear that we needed to amend the 
law. I introduced the Residual Radioactive Contamination Compensation 
Act. I am pleased that, with some modifications, it has been 
incorporated into this amendment.
  The most important change is we now will provide eligibility for 
benefits under subtitle B of the original act to workers who were 
employed at facilities where NIOSH has found potential for significant 
radioactive contamination. That means they will be able to apply for 
benefits just like the workers who we know were directly exposed to 
radiation during weapons production. They are not automatically 
eligible for benefits, but they now have a right to apply. That is only 
fair.
  In addition to expanding eligibility for workers employed at 
facilities where the potential for residual contamination was 
discovered, my amendment requires NIOSH to update the list of such 
facilities by 2006. I have met with these men who worked in these 
plants. They came home from World War II--the vast majority of them--
and they went to work in the industrial plants that were all over 
western New York in the late 1940s and 1950s, and they worked hard. 
They have distinct memories of rolling big coils of uranium around the 
floor of the plants, and uranium residue was falling into the fires of 
the steel mills. It is a very touching experience because they did what 
they were supposed to do. Many of them fought in Europe, in the 
Pacific, and came home after the war to lead their lives, raise their 
families. They worked hard for years, and now they are sick. So we need 
to fix this.
  I am grateful for this amendment moving us forward. I am going to 
focus hard on NIOSH as they continue their work to meet the 2006 update 
deadline that this amendment imposes because I think there are other 
facilities--certainly in my State--where it is indisputable that they 
were contaminated by residual radioactive materials.
  We are also establishing a center in western New York to help people 
navigate the claims system. As the Senator from Kentucky pointed out, 
the DOE has not done the job. We need to have a place where all of 
these workers, many of whom are in their seventies and eighties now, 
can go and get the information about this new law and they can get 
their claims expedited accordingly.
  This is a modest amendment. The CBO estimates that making workers who 
were exposed to residual contamination eligible for benefits under 
subtitle B of the act will cost only $2.9 million per year over 10 
years. The changes to subtitle D, the workers' compensation component 
of the program, are also relatively inexpensive. CBO anticipates the 
program will need an appropriation of an additional $2 million in 
fiscal year 2005 from the current program to pay for these changes, and 
that annual costs in future years will be on the order of $25 million 
per year. This is very close to the current scoring amount for this 
portion of the program. The difference is we are not only going to do 
the program better and take care of more people, these costs are fully 
offset in this amendment.
  Madam President, this is a very small price to pay to fulfill the 
promise Congress made to weapons workers in 2000 and that Americans 
made to these men over decades as they labored in these facilities. It 
is obviously not everything some of us would wish for, but it is a very 
honorable compromise, and the sponsors of the bill have worked very 
hard to bring it about.
  So I hope that, in the wake of dedicating the World War II Memorial 
and the week of honors to President Reagan and his legacy, we recall 
that during the cold war we relied on deterrence. What that meant is we 
had to have a credible threat of a massive retaliatory attack by the 
United States against the Soviet Union in the event that they were to 
even consider acting against us.
  In a very real sense, the soldiers of the cold war were also the men 
and women who toiled in these weapons production facilities run by DOE 
and the contractors, many of whom were in western New York and 
throughout my State. These were people who worked in hazardous 
conditions; many have paid a heavy price in terms of their health.
  I am very pleased that today we are taking a step to fix the glaring 
flaws in the Energy Employees Occupational Illness Compensation 
Program, and I urge my colleagues to join in supporting the Bunning-
Bingaman amendment.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New York, Mr. Schumer, is 
recognized.
  Mr. SCHUMER. Madam President, I want to join all of my colleagues, 
including my good friend, the Senator from Kentucky, my colleague and 
friend, Senator Clinton, Senator Bingaman, and so many others who are 
in support of this bipartisan amendment, which would not only improve 
many of the unsuccessful provisions of the Energy Employees 
Occupational Illness Compensation Program Act, but it would also 
address critical areas of concern important to workers that were not 
properly dealt with in the original legislation.
  For decades during the cold war, thousands of New Yorkers labored in 
hazardous conditions at DOE and contractor facilities, unaware of the 
considerable health risks. Workers at these facilities handled high 
levels of radioactive materials and were responsible for helping create 
the huge nuclear arsenal that served as a deterrent to the Soviet Union 
during the cold war.
  Although Government scientists knew of the dangers posed by 
radiation, workers were given little or no protection, and many have 
been diagnosed with cancer.
  During the cold war, New York alone was home to 36 former atomic 
weapon employer sites and DOE cleanup facilities. In the 8 counties of 
western New York--in the Buffalo and Niagara region, where this is 
particularly a problem--there were 14 facilities that participated in 
the manufacture of America's nuclear arsenal.
  Despite having one of the greatest concentrations of facilities 
involved in nuclear weapons production-related activities in the 
Nation, western New York continued to be seriously underserved by the 
Energy Employees Occupational Illness Compensation Program, not just 
for a year or two but for many years. Many constituents from my State 
went unaware of the program entirely or were not provided with 
sufficient information about how the claimant process worked. In the 
opinion of my constituents, this program was completely ineffectual in 
its ability to address their questions and concerns properly.
  Despite statutory language in section 3631 of the original 
legislation, which required DOL to provide outreach and claimant 
assistance, the only assistance applicants received when applying for 
this program was from a traveling resource center that came to the area 
too infrequently to serve the public.
  Today I am happy to say that the Bunning-Bingaman amendment would 
substantially improve the effectiveness of outreach and claimant 
assistance to applicants from the New York region by recognizing the 
need for a resource center in western New York. This is something we 
have been pushing for years. This would be a substantial step toward 
improving services for workers in my home State.
  Upon successful passage of this legislation, I look forward to 
working with the newly established Office of the Ombudsman to locate a 
resource center in the western New York region. A permanent facility 
would not only increase awareness of the program among residents but 
would help serve workers throughout the claimant process.
  Furthermore, this legislation would repair the definition of an 
``atomic weapons employee'' to assure that those exposed to residual 
radiation after a facility finished processing radioactive materials 
for nuclear weapons programs would qualify to apply for benefits--a 
truly fundamental expansion on which my esteemed colleague Senator 
Clinton has been a leader.

[[Page 12425]]

  In a report released at the end of 2003, NIOSH identified 86 atomic 
weapons employer facilities across the country where there was a 
potential for significant residual radiation outside the period in 
which weapons-related production occurred, and 14 of those are in my 
home State of New York.
  Passage of this new legislation would provide a significant 
opportunity for sick nuclear workers from across New York and the 
country who were formally excluded from this program to receive the 
compensation they deserve.
  While the act was enacted to provide compensation to employees of the 
Department of Energy and its contractors who were exposed to radiation 
or other toxic substances, a significant portion of this program 
utterly failed--utterly failed--in its obligations to thousands of 
Americans who dutifully acted as soldiers on the front lines of the 
nuclear arms race.
  After 4 years and more than $90 million in administrative funding, 
DOE admits they have only provided compensation to 4 claimants of the 
more than 24,000 who have applied for assistance under subtitle D. 
There have been multiple Senate hearings examining the failures of this 
program and particularly of subtitle D. GAO has studied DOE's efforts 
under subtitle D and found significant problems with both DOE's claims 
review process and the ability to pay valid claims.
  Today we owe it to those who sacrificed their health and safety for 
the security of America to pass the Bunning-Bingaman amendment.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. ALEXANDER. Madam President, I express my appreciation to the 
Senator from Kentucky, and the Senator from New Mexico as well. The 
Senator from Kentucky has worked diligently, consistently, 
persistently, and made certain that this amendment saw the light of 
day.
  I thank the Senator from Virginia for permitting it to be considered 
in this way.
  I only have a brief comment to make, but this is an important 
comment. As the Senator from New York said, this amendment will fulfill 
the intent of the act in 2000 which intended to provide for our cold-
war veterans, our sick workers. The Senator from Alaska, who is in the 
chair, has been one of those who have spoken eloquently about this in 
the Energy Committee on which we both serve.
  Over 24,000 of our Nation's cold-war veterans have filed claims with 
the Department of Energy, and over 18,000 of those claims are still 
being developed or awaiting development. There are more than 4,800 
cold-war veterans in Tennessee who are sick and are getting the 
runaround from the Department of Energy. It needs to stop. We should be 
treating our cold-war veterans with the same respect they have treated 
our country.
  As of March 18 of this year, 60 percent of these cases were still 
awaiting development--60 percent. The Department of Energy has had, as 
has been said already, nearly 4 years to get its act together and has 
yet to do so. This amendment will transfer the responsibility of claims 
from the Department of Energy to the Department of Labor. The 
Department of Labor currently runs several workers' compensation 
programs and is well equipped to handle those claims. The changes will 
provide uniform medical benefits and allow a large number of claimants 
in the process to receive compensation much sooner.
  I am proud to be a cosponsor of the amendment. I urge my colleagues 
to support it.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. VOINOVICH. Madam President, I rise today to join my colleagues, 
Senators Bunning and Bingaman and the other supporters of this 
legislation, to support this very important amendment. This amendment 
will improve an existing program which provides financial and medical 
compensation to workers who were made ill as a result of their 
employment at the Department of Energy's nuclear weapons facilities.
  Since the end of World War II, at facilities all across America, tens 
of thousands of dedicated men and women in our civilian Federal and 
contract workforce helped keep our military fully supplied and our 
Nation fully prepared to face any threat from our adversaries around 
the world by developing and building our Nation's nuclear weapons 
stockpile. The success of these workers in meeting this challenge is 
measured in part with the end of the cold war and the collapse of the 
Soviet Union. However, for many of these workers, their success came at 
a very high price. They sacrificed their health and even their lives, 
in many instances without knowing the risks they were facing, to 
preserve our liberty. I will not go into the details, but I saw the 
memoranda and all the other items they should have had available to 
them but which were kept from them. What happened to these workers was 
worse than what happened to the workers in the movie ``Erin 
Brockovich'' that many of us saw.
  I believe these men and women have paid a high price for our freedom, 
and in their time of need this Nation has a moral obligation to provide 
some financial and medical assistance to these cold-war veterans. That 
is what they are--cold-war veterans.
  To meet that goal, I worked with a bipartisan group of my colleagues 
4 years ago to create a program that would provide financial 
compensation to Department of Energy contract workers whose impaired 
health has been caused by exposure to beryllium, radiation, or other 
hazardous substances. I have been pleased to be involved with this 
program from the beginning. In fact, the passage and creation of this 
legislation in 2000 was one of my proudest moments as a Member of the 
Senate. It took monumental efforts by a bipartisan group of my 
colleagues, many of whom cosponsored this amendment we are debating 
today. I said at that time the Holy Spirit was working because, without 
divine help, this would never ever have gotten done.
  Under the current program, the Energy Employees Occupational Illness 
Compensation Program, workers suffering from beryllium disease, 
silicosis, or cancer due to radiation exposure because of their work in 
our national security programs are eligible for Federal compensation. 
The Department of Labor was assigned primary responsibility for 
administration and adjudicating these claims under part B of this act.
  Under part D, the Department of Energy would assist claimants filing 
for compensation through State workers' compensation programs if a 
physicians panel found an occupational illness caused by chemical or 
other toxic exposure at a DOE site. Claims were not to be contested by 
contractors, and any compensation was to be paid by the Department of 
Energy.
  This compromise package that was ultimately agreed to by Congress and 
signed into law was not what I originally supported in 2000. I 
introduced a bill which called for a Federal program administered 
entirely by the Department of Labor, but during congressional 
negotiations on the language authorizing the program, I agreed to this 
multiagency concept in order to reach a compromise creating the 
program. The fact is, if we did not agree to that, we would not have 
gotten a bill out of conference. So I agreed to it.
  I have been pleased with the excellent program the Labor Department 
is running. Over 3 years after enactment, we have seen over 13,000 
claimants receive compensation from DOL. On the other hand, I am 
becoming extremely frustrated with DOE's administration of part D of 
the program. More important than my frustration, however, is the fact 
that claimants who deserve answers and compensation are experiencing 
endless delays. I visited with some of those people. They cannot 
understand why this bureaucracy in Washington does not work.
  While over 24,000 claims have been received by the Department, only 
646 final decisions have been sent to claimants. Think about that: Out 
of 24,000, only 646 have been sent to claimants.
  Even more shocking is that only four claimants have any compensation 
at

[[Page 12426]]

all from the DOE portion of this program. I have always been skeptical 
of the capability of the Department of Energy to administer this 
because of their lack of experience in administering workers' 
compensation programs. I could have told them that when we started out, 
but no one would have listened.
  Additionally, I was concerned about the role of State workers' 
compensation programs outlined in part D. As a former Governor, I was 
doubtful that a Federal program such as this would be able to work in 
each of the individual State programs.
  There are two inherent problems within the existing program: 
continued delays and slowness in processing claims, and the so-called 
willing payer issue.
  This amendment addresses both of those issues. In order to speed up 
claims handling and processing, this amendment moves administration of 
part D from the DOE to the DOL. I believe DOL is better suited to 
administering this program because they have significant experience in 
administering workers' compensation programs, including part B of the 
program.
  This amendment also addresses the willing payer issue, another very 
important aspect. Under the current program, I understand it will be 
difficult for DOE to fulfill congressional intent in Ohio because there 
is not a contractor in place at the sites that can be compelled to pay 
the claims. They are no longer there. Many other workers nationwide are 
facing the same shortcomings in this program. In fact, the Ohio Bureau 
of Works' Compensation has tried unsuccessfully to work with DOE to 
ensure that this program works in Ohio.
  The current administrator of the Ohio Bureau of Workers' Compensation 
is probably the best public administrator I have met in my life. He 
started with me when I was Lieutenant Governor, worked with me when I 
was mayor, and came to work with me as Governor of the State of Ohio. I 
would like to just quote from his letter to me and Senator DeWine. He 
stated:

       I understand DOL's and DOE's concern with this amendment, 
     but BWC must ultimately look at what is best for the 
     customer, in this case, the injured workers; consequently, we 
     feel the changes proposed by the amendment will result in 
     positive developments. Since the program's inception, DOE has 
     failed (for whatever reasons, some of which may not be the 
     department's fault) to process its claims in a timely 
     fashion. A recent General Accounting Office report stated 
     that DOE had only processed 6 percent of the 23,000 received 
     claims. Clearly, the current system is not working. We 
     believe throwing more money into a system that does not work 
     will only compound the problem.

  The amendment we are considering today enjoys broad bipartisan 
support in the Senate. It is also supported by many State compensation 
systems and local labor organizations, including the Ohio Bureau of 
Workers' Compensation, the PACE locals at Mound and Portsmouth, and the 
Fernald Atomic Trades and Labor Council in my home State of Ohio.
  I urge my colleagues to vote in favor of this amendment. It simply 
fulfills the promise that we made to these veterans of the cold war. We 
have kept them waiting too long.
  I ask unanimous consent to have this letter from Administrator Conrad 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                   The Ohio Bureau


                                      of Workers Compensation,

                                       Columbus, OH, June 7, 2004.
     Hon. Mike DeWine,
     U.S. Senate, Russell Senate Office Building,
     Washington, DC.
     Hon. George Voinovich,
     U.S. Senate, Hart Senate Office Building,
     Washington, DC.
       Dear Senator DeWine and Senator Voinovich: I write today to 
     express the Ohio Bureau of Workers' Compensation's (BWC's) 
     support for the pending Bunning-Bingaman amendment to reform 
     portions of the Energy Employees Occupational Illness 
     Compensation Act of 2000. As you know, portions of this 
     program, especially Subtitle D, have failed to process claims 
     and assist injured workers with receiving their rightful 
     benefits in a timely fashion. As stated in our previous 
     letters, the Department of Labor (DOL) has found success 
     implementing its part of the program (Subtitle B); however, 
     the Department of Energy (DOE) has not met with the same 
     results. Over the past two years, BWC has actively sought a 
     positive solution to this problem with DOE and we are 
     prepared to support the Bunning-Bingaman amendment to help 
     move this program in the right direction.
       I understand DOL's and DOE's concern with this amendment, 
     but BWC must ultimately look at what is best for the 
     customer, in this case the injured workers; consequently, we 
     feel the changes proposed by the amendment will result in 
     positive developments. Since the program's inception, DOE has 
     failed (for whatever reasons, some of which may not be the 
     department's fault) to process its claims in a timely 
     fashion. A recent General Accounting Office report stated 
     that DOE had only processed 6% of the 23,000 received claims. 
     Clearly, the current system is not working. We believe 
     throwing more money into a system that does not work will 
     only compound the problem.
       We believe the Bunning-Bingaman amendment will reform the 
     system to speed up claims processing and benefit payouts. It 
     will allow states to serve as consultants to advise the 
     federal government on the benefit levels eligible injured 
     workers should be receiving. In effect, the federal workers' 
     compensation program outlined in this amendment offers fewer 
     limitations and easier access to benefits for the injured 
     workers of Ohio than did the previous system that was in 
     place. The states will serve as guides to the federal 
     government to help determine the correct benefit levels.
       In addition, by shifting causation determinations and case 
     development from DOE to DOL, it removes subjecting similar 
     injured workers from having to go through multiple federal 
     and state jurisdictions for approval. Injured workers 
     receiving Subtitle B benefits are determined to be eligible 
     for Subtitle D benefits, which will speed up claims and 
     benefit distributions since 50% of all Subtitle D claims have 
     already been awarded Subtitle B benefits.
       In sum, we believe the amendment will help steamline the 
     program and take the burden off the states while speeding up 
     the process for the injured workers. It is our belief that 
     the Bunning-Bingaman amendment will help resolve this problem 
     and help bring relief to injured and ill Ohio workers and 
     their families. As has been our history with this program, 
     BWC stands ready to assist the process in any way possible.
           Sincerely,
                                                     James Conrad,
                                                Administrator/CEO.

  Mr. GRASSLEY. Madam President, I rise to speak in support of the 
amendment offered by Senators Bunning and Bingaman. This amendment, of 
which I am a cosponsor, makes significant and much needed reforms to 
the Energy Employees Occupational Illness Compensation Act of 2000.
  Congress passed this law to provide timely, uniform, and adequate 
compensation to sick nuclear workers. These Department of Energy 
employees or contractors were made sick from exposure to toxic 
substances or radiation while assembling our nuclear deterrent. This 
law required DOE to help these former workers compile employment and 
medical records to assist in the filing of State workers compensation.
  There are two facilities in Iowa that are covered under this law. 
Over 600 claims have been filed by former workers of the Iowa Army 
Ammunition Plant located in Middletown, IA. These patriots served on 
our Nation's homefront during the cold war, putting themselves at risk 
building nuclear weapons. The least our Government can do is provide 
the necessary assistance to ensure that those eligible for compensation 
receive it.
  However, one thing has been made perfectly clear. The Department of 
Energy does not have the capability or expertise to fulfill their 
responsibilities under this act. I began to question DOE's ability to 
process these claims in April of 2003, when I noticed they had received 
over 15,000 claims and only a handful had been fully processed.
  I questioned Secretary Abraham on this point. I followed up with 
Under Secretary Card a few months later. I was told on both occasions 
that all DOE needed was more time and more money. I was skeptical, to 
say the least.
  Then, last fall, the General Accounting Office confirmed my 
suspicions. Their conclusions, in a report I had requested, were 
stunning. Of the more than 19,000 claims filed with the Department of 
Energy, only 6 percent had been completely processed, and over 50

[[Page 12427]]

percent remained untouched. Even more, GAO concluded that more money 
alone would not result in more timely processing.
  Becasue it was clear that DOE had a substandard operation in place to 
implement this important program, Senator Lisa Murkowski and I took 
action. We offered and had accepted an amendment to the Energy and 
Water appropriations bill to transfer the claims processing from DOE to 
the Department of Labor.
  We knew at the time that DOE was not on the right track, and that DOL 
had the experience and expertise to handle this compensation program. 
While we were successful in the Senate, the Department of Energy and 
their contract had their way, and our amendment was stripped in 
conference.
  Since that time, I have testified before Chairman Domenici's Energy 
Committee twice to outline the abysmal performance of the Department of 
Energy. It was at the second hearing where I shared information I had 
uncovered about the contractor that DOE had hired to do this work.
  While only 6 percent of claims had been fully processed, DOE believed 
it was perfectly reasonable to pay the program manager of their hired 
contractor $401,000 annually. The head of DOE's contractor costs the 
taxpayer more than the salaries of Secretary Abraham and Secretary Chao 
combined.
  Today's bipartisan amendment is a comprehensive approach to finally 
put an end to the perpetual delay in claims processing and address the 
lack of a willing payor to pay valid claims in Iowa.
  It is my understanding that the administration opposes our amendment 
because they believe it will create an unworkable process and delay the 
processing of claims. This is precisely the same position they held 
last October when Senator Murkowski and I pushed similar reforms.
  It is unfortunate that the administration hasn't realized during this 
time that the unworkable process and unnecessary delay is not a result 
of our efforts here in Congress but the result of 4 years of 
ineffectiveness at the Department of Energy. This amendment simply 
makes the original law work.
  I hope my colleagues can support our efforts on behalf of the 
thousands of sick nuclear workers across the Nation. Through this 
amendment, these sick workers will finally receive the compensation 
they so richly deserve.
  Mr. BINGAMAN. Madam President, I rise today to offer my support for 
the amendment offered by my colleague, Senator Bunning, to reform the 
Energy Employees Occupational Illness Compensation Act.
  The purpose of this act was straightforward when enacted in 2000: to 
compensate sick workers at Department of Energy facilities, and 
industrial sites, who performed work involving radioactive and 
hazardous materials associated with nuclear weapons. More importantly, 
it was to compensate them quickly, and with a minimal amount of 
bureaucracy, given that many of these workers are dying.
  Unfortunately, 4 years later that does not appear to be the case for 
subtitle D of this act, as administered by the Department of Energy, 
which handles claims that are to go forward to State compensation 
boards.
  Let me cite some statistics that indicate to me that there appears to 
be a structural problem with subtitle D. As of June 4, 2004, the 
Department of Energy has 24,354 cases pending to determine whether 
working at a DOE facility was the cause of their illness. Yet as of 
June 4, 2004, only four of the cases have received a favorable 
determination from State Worker Compensation Boards. The amount paid 
out for these four cases is approximately $139,000. Over the past 4 
years, the administration of this program has cost the taxpayers $95 
million.
  The Energy and Natural Resources Committee has held two hearings on 
this program to explore solutions to the problems we face under 
subtitle D. The first hearing was on November 23, 2003. It had seven 
witnesses, including Senator Grassley and Under Secretary Card from the 
Department of Energy. The other five witnesses were experts in the 
field of injured worker compensation; all had worked on this program 
since its inception. At that hearing, the expert witnesses confirmed 
there were major problems processing the claims under subtitle D. Dr. 
David Michaels, the former DOE official who developed this program, 
told the committee that subtitle D, as administered by the DOE, was a 
failure.
  The second hearing on March 30, 2004, included Senator Grassley, DOE 
Under Secretary Card and officials from the GAO, Department of Labor 
and NIOSH. At this hearing, the DOE proposed several legislative 
changes to the processing of the claims, such as reducing the physician 
panels from 3 to 1 and increasing the pay for qualified physicians. In 
my opinion, these administration proposals fell short, yet these 
proposals are in the current Department of Defense bill the Senate is 
debating.
  Because of these two hearings, Senator Bunning and I are now 
proposing this amendment, which we believe will help fix some of the 
problems found under subtitle D. The amendment has undergone many hours 
of bipartisan staff discussion over several months.
  The most significant element of the amendment is the shift of 
subtitle D from the DOE to the Department of Labor, which specializes 
in handling such claims. If the claim is found to have been caused by 
employment at a DOE site, the Department of Labor then pays the sick 
worker his lost wages at the time of his employment plus medical 
expenses, according to their State compensation formula at the time of 
employment.
  This payment scheme is a positive step forward. It eliminates an 
adversarial adjudication in front of a State compensation board, which 
in some cases, even if positively adjudicated, will have no willing 
payer as the contractor has long since vanished. Sick workers who 
performed inherently unique governmental functions associated with 
nuclear weapons should not be subjected to this adversarial 
adjudication process.
  I believe the remedy that Professor John Burton of Rutgers University 
proposed is the better approach. Professor Burton is the Nation's 
leading expert on workers compensation, and he has given advice on this 
legislation since it was first enacted. At the March 30 hearing, 
Professor Burton recommended a single formula modified according to the 
degree of disability. In this way, the Department of Labor is not tied 
to each State's compensation formula as in this amendment.
  Nevertheless, I think this amendment reflects a bipartisan effort, 
and in doing so, compromises had to be struck by all parties.
  I also ask unanimous consent to have printed in the Record a letter 
in support of the New Mexico Workers' Compensation Administration for 
fixing the program.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

  New Mexico Workers' Compensation Commission Statement About EEOICPA 
                          Reform--June 2, 2004

       The NM Workers' Compensation Administration strongly 
     supports concrete steps by the federal government to provide 
     meaningful implementation of the EEOICPA. By meaningful 
     implementation, we mean federal monetary compensation and 
     medical care for workers made ill by exposure to radiation 
     and toxic substances while performing jobs related to atomic 
     weapon production and Cold War efforts. Our state, along with 
     others, dedicated its most valuable resource, human lives, to 
     the strengthening of the nation. New Mexico citizens are 
     proud to have served. Many dignified New Mexicans, including 
     our friend and beloved state Representative Ray Ruiz, have 
     tragically passed away from work related illnesses while 
     waiting for the federal government to fulfill promises 
     contained in the Act. These fine people are patriots that 
     were seriously injured while working on federal priorities. 
     They are still waiting for federal help. The NM Workers' 
     Compensation Administration stands ready and willing to 
     assist in any way it can, and certainly will not stand in the 
     way of federal authorities finally fulfilling the promises 
     made to these citizens.
           Sincerely,
                                                   Alan M. Varela,
        Director, New Mexico Workers' Compensation Administration.

  Mr. BINGAMAN. Let me note that even though this amendment proposes

[[Page 12428]]

to move subtitle D from the DOE to the Department of Labor, the DOE 
will continue to play a vital role in locating and interpreting the 
workers' employment and medical records. This move will let the DOE 
concentrate solely on performing this important function without trying 
to administer a large claims processing program.
  I conclude by thanking those who have contributed to this effort. I 
thank Ms. Kate Kimpan from Senator Bunning's Office, who has provided 
never-ending technical support on a complicated subject. I also thank 
Mr. Richard Miller of the Government Accountability Project, Mr. Jay 
Powers of the AFL-CIO, and others of the building trade unions. Richard 
Miller and Jay Powers have worked to help sick atomic workers since 
this program was initiated, and have continued to make Congress aware 
of its failings 4 years later; we owe both these gentlemen a debt of 
gratitude.
  These workers and their families have suffered the pain of serious 
illnesses for so long--we should not make them suffer the indignity of 
trying to navigate Government red tape a moment longer. I urge my 
colleagues to support this amendment.
  Mr. REID. Madam President, on June 10, the Las Vegas Review-Journal 
published an editorial about the program my friend from Kentucky seeks 
to fix. As the editorial noted, this program was created to compensate 
our cold war veterans who are sick from their work at nuclear 
facilities around the country, including the Nevada Test Site, during 
the cold war.
  These brave men and women were not told that they were exposed to 
dangerous levels of radiation and other toxic substances. In fact, for 
years the Department of Energy knew the deadly effects of these 
substances but still resisted workers' attempts to seek compensation 
for their work-related illnesses.
  The Energy Employees Occupational Illness Compensation Program, which 
began in 2000, was created to remedy the decades of stonewalling and 
deception by the DOE. When we worked to create this program in 2000, we 
put part of it under the auspices of the Department of Energy. We 
intended to provide relief to sick workers and their widows who are 
strapped with medical bills. As of April, only one worker in Washington 
State had received any compensation through the DOE program. Three more 
workers have now received compensation.
  More than 24,000 workers have filed claims with the Department of 
Energy. After 4 years and about $74 million worth of work, exactly four 
of these workers have received compensation. The Review-Journal calls 
the DOE's program a ``boondoggle.'' I couldn't agree more. Many of 
these workers, if not most of them, are very sick. They are aging. If 
they have to wait much longer, they may not live long enough to receive 
the compensation they deserve. That isn't fair, and it isn't right.
  My colleague from Kentucky is offering his amendment because these 
workers' illnesses will not wait for the DOE to fix this program on its 
own. This program has another serious problem that his amendment seeks 
to correct: some workers who file claims and deserve compensation have 
no entity to pay their claims.
  In Nevada, for example, 482 workers have filed for compensation. If 
they were exposed to toxic substances at the Nevada Test Site before 
1993, they would have no so-called ``willing payer'' of workers' 
compensation.
  For 3 years, Congress has asked the Department of Energy to suggest a 
way to fix this problem. The best answer we have received is, we are 
looking into it.
  In its last hearing on this program, the DOE said it had no 
responsibility to help workers through their State workers' 
compensation programs. The bureaucrats at DOE are missing the point of 
this program. Yes, DOE is finally beginning to admit to some of its 
workers that their jobs made them sick. That is a step in the right 
direction. But admitting responsibility for these illnesses, and then 
declining to offer any help, is not in the spirit or the letter of the 
law we passed 4 years ago.
  The Department of Energy was given a huge opportunity with this 
program to rectify its previous mistakes that caused these workers to 
become sick. I am very disappointed with what the DOE has done with 
that opportunity, but I am not surprised considering how they have 
botched our nuclear waste program.
  I hope our action today will move us toward fulfilling the promises 
we made to these workers. Just as we would never leave a soldier on the 
battlefield, we must not leave behind these Americans whose work in the 
nuclear industry helped our Nation win the cold war.
  Mr. KENNEDY. Madam. President, I support Senator Bunning's amendment 
to improve the Energy Employees Occupational Illness Compensation 
Program Act. The program, for all its growing pains, is becoming a 
long-awaited success. It has now provided benefits to over ten thousand 
employees or their surviving family members.
  Four years ago, I joined my colleagues Senators Thompson, Bingaman, 
and Voinovich to pass this program to compensate workers for the 
dangers they have faced from chemicals and radioactivity in their work 
in producing nuclear weapons many years ago. Many of them suffered 
debilitating and often fatal illnesses directly related to their 
exposure. The health and safety hazards they faced were not as well 
known as they are today, but in many cases, the government decided that 
production of the weapons was more important than the safety and health 
of the workers.
  The compensation program was intended to right this wrong, and many 
of its goals have been achieved in the past 4 years. The Department of 
Labor has processed over 30,000 out of 55,000 claims, and made payments 
of over $870 million in compensation and medical bills.
  Unfortunately, not all parts of the program have been as successful. 
The part handled by the Department of Energy is not functioning as it 
should. The Department has moved very slowly. After four years and more 
than $90 million in administrative costs, 80 percent of the 24,000 
claims the Department has received have still not been fully processed.
  Even workers who do make it through the system are not being paid. 
Because the payments are funneled through State workers' compensation 
systems, even persons who we acknowledge were made sick by their work 
have to fight for the compensation they are owed. At this point, we 
know of only four claims that have been paid.
  This is why this amendment is needed, and I commend Senator Bunning 
and Senator Bingaman for their leadership in developing this bi-
partisan solution. I also commend the many other colleagues on both 
sides of the aisle who have been working on this amendment for several 
months in order to guarantee that the relief the workers and their 
families deserve as soon as possible.
  The amendment will transfer the administration of claims from the 
Department of Energy to the Department of Labor, which will pay these 
claims directly. This step will make it substantially easier for 
thousands of deserving workers, retirees, and surviving family members 
to obtain the compensation and medical care they are owed. The 
amendment also expands eligibility to include workers exposed to 
residual contamination. I commend Senator Clinton for her work on this 
specific problem, which is critical to many workers in Western New 
York.
  The use of a State workers' compensation formula to calculate 
benefits should not be taken as a model in other cases. This was a 
unique compromise we reached in order to achieve timely payment of 
these claims, and is in no way an endorsement of a change in the 
benefit levels or structure of other Federal workers' compensation 
programs.
  Clearly, we should be using a uniform Federal compensation formula to 
compensate these workers, because they were performing work for the 
federal government. A uniform formula is in keeping with the structure 
of other federal workers' compensation programs. It would also be far 
easier for

[[Page 12429]]

the Department of Labor to administer, and I know the Department shares 
my views on this point.
  In addition, other aspects of the compensation program deserve our 
concern. Thousands of workers are seeking entrance into a Special 
Exposure Cohort under another part of the program, and the rules for 
admission have just been issued by the National Institute of 
Occupational Safety and Health. Also, the dose reconstruction estimates 
still await processing for some workers in the building and 
construction trades. I urge the Institute to give high priority to this 
task so that further legislation will not be necessary.
  This amendment is a needed step to carry out the compensation 
program. I welcome this bipartisan compromise and I urge my colleagues 
to approve the amendment.
  Ms. MURKOWSKI. Mr. President, it is an honor to come to the floor 
today to speak in support of this amendment to the Department of 
Defense Authorization Act on behalf of nuclear workers. I am proud to 
cosponsor this amendment. Why am I am honored to speak on behalf of 
this amendment? Simply put, because it is the right thing to do. The 
nuclear workers who will receive compensation under this amendment 
helped America win the cold war. They worked in our nuclear research 
facilities, our weapons facilities or, in the case of Alaskans, at the 
site of the largest nuclear test our country ever conducted. It was 
through their hard work and courage that our Nation was able to triumph 
in the most significant challenge we faced during the second half of 
the 20th century.
  Will the compensation to be provided nuclear workers under this 
amendment really repay our Nation's debt to them? Of course not. It 
will not come close. Sylvia Carlsson is the widow of an Amchitka 
worker. Her husband was a mine shaft workers on the Project Cannikin at 
the Amchitka, AK, nuclear test site in 1971. Project Cannikin was our 
Nation's largest nuclear bomb test. He was exposed to ionizing 
radiation during the course of his employment. He died of colon cancer 
before his 41st birthday. Bev Aleck and Nancy Woodward-Tremper are two 
of a number of other Alaskan widows with similar stories. Other former 
Amchitka workers, such as Andrew Akula, are still living but are 
suffering from life-threatening conditions. Ask any of these Alaskans 
whether this compensation will make up for lives lot or a lifetime of 
debilitating disease. It wouldn't. However, the compensation they have 
earned will at least show that a grateful Nation acknowledges their 
contribution to our national security.
  Let me briefly talk about what this amendment actually does. First, 
and perhaps most importantly, my colleagues should recognize that this 
amendment does nothing more than cure deficiencies in Energy Employees 
Occupational Illnesses Compensation Program Act that Congress passed in 
2000. It is narrow, focused legislation. It certain is no brand new 
entitlement program.
  The Energy Employees Act of 2000 established two programs for 
compensating nuclear workers. The program under subtitle B of the act 
is administered by the Department of Labor. Numerous claims have been 
processed and many claimants found eligible have received compensation 
under the Department of Labor program. Indeed, the Department of 
Labor's implementation of subtitle B has been universally recognized as 
a success.
  In sharp contrast to the Department of Labor's record, the processing 
of claims under subtitle D of the Act by the Department of Energy has 
been unacceptably slow. In 4 years, only 3 percent of claims have been 
processed by DOE. The great majority of claims remain unprocessed by 
DOE.
  DOE's failure to successfully implement its portion of the Energy 
Employees Act has been the subject of two recent Senate Energy 
Committee hearings. The record of these hearings unequivocally reflects 
both DOE's dismal claims processing record and its failure to develop 
any plan to provide funds to a significant percentage of nuclear 
workers found eligible for compensation.
  In addition to the Senate hearings, the GAO recently issued a report 
on DOE's implementation of subtitle D of the Energy Employees Act. It 
found numerous problems with both DOE's claims processing efforts and 
confirmed the findings of the two Senate Committee hearings concerning 
DOE's ability to assure that claimant's found eligible would actually 
receive compensation.
  I try to stay away from dry statistics when discussing issues that 
have such a direct impact on so many Americans' lives and health. 
However, I think that in this instance one statistic starkly 
illustrates the need for this legislation. After 4 years and more than 
$90 million in administrative funding, DOE has provided compensation to 
only 4--yes, 4--of more than 24,000 individuals that have applied for 
assistance under the subtitle D program.
  There is nothing new or difficult about this legislation. There is 
nothing that requires lengthy reflection or consideration. This 
amendment simply implements legislation Congress passed 4 years ago. 
Unfortunately, what Congress intended in the 2000 Energy Employees Act 
has not occurred. This amendment addresses that failure.
  I close my remarks as I began. Our Nation owes a debt of gratitude to 
the nuclear workers. It is well past time that we provided Alaskans and 
other Americans the compensation they have earned in service to our 
country. The workers and their survivors deserve no less.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Does the Senator from Kentucky wish to modify his 
amendment?
  Mr. BUNNING. I will, following the Senator from Iowa.
  Mr. WARNER. Fine. I ask my colleague to be able to wrap up this very 
important debate shortly.
  Mr. HARKIN. Shortly.
  Mr. WARNER. We are anxious to move on, and there will not be a 
requirement for a rollcall vote. I appreciate very much the cooperation 
because given the bipartisanship on this matter, it will be a timesaver 
as we move ahead on this bill.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. HARKIN. I ask unanimous consent that I be added as a cosponsor to 
the pending amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HARKIN. Madam President, I thank the Senator from Kentucky for 
also agreeing to modify his amendment with a provision of mine that 
would shorten the period of time that Congress has to review an 
administrative determination to add a class of nuclear weapons workers 
to a ``Special Exposure Cohort'' entitling them to automatic 
compensation from 180 days to 60 days. I appreciate the willingness of 
the Senator from Kentucky to accept that and to shorten that period of 
time to 60 days which will speed the process of compensating workers.
  Senator Bunning has worked very hard on this amendment. It takes some 
very important steps toward addressing very serious defects in an 
existing compensation program, and I hope that my colleagues will 
support the amendment today and hopefully we will not even need to have 
a rollcall vote.
  In my State of Iowa, between the years of 1947 and 1975, almost 4,000 
people were employed assembling, disassembling nuclear weapons. So 
great was the secrecy surrounding the facility, which was located 
inside an existing ammunition facility, that I did not even learn of 
its existence until late in 1997. I might add that when I was informed 
by certain workers that they had been exposed to dangerous radiation, I 
then submitted this to the Department of Army.
  The Department of Army denied that they had ever worked on nuclear 
weapons at this facility. Well, I thought that was the end of it. I 
thought surely the workers must have been mistaken. Then I found out 
that it was the Army that was mistaken and, in fact, thousands of 
workers had worked at this plant in Iowa. Five and a half years later 
we are still trying to learn the full extent of the weapons activity 
and

[[Page 12430]]

the radioactive materials to which Iowa workers were exposed.
  During this same period, as the realization sank in that the cold war 
really was over, it became clear that nuclear weapons workers all over 
the country had been exposed to extremely dangerous radioactive 
materials without their knowledge and without adequate protection. As a 
result, many of the workers developed cancer and related occupational 
illnesses. That is why in 2000, Congress acted to create a compensation 
system for former atomic weapons workers.
  The compensation system that we created had two distinct parts. The 
part addressed by the Bunning amendment today applies to workers who 
show that they have an illness that was more likely than not caused by 
the work they performed in these nuclear weapons facilities, and that 
they have been disabled by that illness.
  Since the creation of the compensation program, this part has been 
administered--or I should say, quite frankly, has been NOT 
administered--by the Department of Energy. There are 23,000 workers who 
have filed claims with the Department of Energy. As of April of this 
year, exactly one person has received compensation.
  When confronted with this appalling record, the Department of Energy 
continued to assert that it was making improvements and would have all 
the claims through the first stage of the process in no less than 5 
more years! Of course, even if the Department had done a better job of 
processing the claims, not one single worker in Iowa would ever have 
been able to get paid. That is because the program was totally 
dependent on the existence of a current Department of Energy contractor 
who would be available to pay the claims.
  This is a catch-22 situation for Iowa workers because Iowa has not 
had a DOE contractor since 1975. So as the program stands today, there 
is no way that any former Iowa atomic workers will be able to get 
compensation for their illness.
  So I welcome the Bunning amendment, which transfers this program 
known as Title D from the Department of Energy to the Department of 
Labor and permits the Department of Labor to pay the claimants 
directly. This will mean that Iowa workers can actually receive 
compensation and medical benefits under this program. The Bunning 
amendment simply carries through on our original commitment in the 2000 
bill that Congress believes that former nuclear weapons workers made 
ill by their employment are entitled to compensation.
  I do believe this amendment should be a little bit better, and I will 
talk about an amendment that Senator Bond and I will be offering at 
some other point later on. First, the amendment continues to require 
that the amount of compensation under this program be determined based 
on the State compensation formulas. That means if a worker in Iowa and 
a worker in Kentucky or New Mexico had the exact same illness, they 
could nonetheless be receiving very different compensation awards. That 
makes no sense and creates a ridiculous burden on the Department of 
Labor in attempting to get these claims processed and paid.
  In addition, the level of compensation paid under this program is in 
my opinion inadequate. The amount that a former worker can receive is 
calculated based on his or her wage at the time of the disability. In 
Iowa, this means that the absolute best case scenario is that a worker 
would receive eighty percent of a 1975 wage, a wage from almost 30 
years ago, with no adjustment for interest or inflation.
  Under the absolute best case scenario, where a worker is determined 
to be 100-percent disabled by an injury, that worker would receive 
about $105 a week, or about $5,000 a year. That is the best case 
scenario. Most will receive much less.
  I think every atomic worker in America who can show they have been 
injured ought to receive the same pay, whether they worked in Kentucky, 
Ohio, New Mexico, Colorado, Iowa, Alaska, or Missouri. Basing this on 
workers' comp wages in each State, again, skews it that way. I believe 
the amount they are being paid is too low. To base it on a wage of 30 
years ago is totally inadequate.
  But nonetheless, I believe this amendment is a major step forward for 
workers in Iowa and across the country. I just wish we could find a 
more simple and uniform and more generous method for awarding this 
compensation.
  In addition, this amendment essentially leaves untouched the other 
half of the energy workers compensation program. Basically, we are 
talking about two titles: Title D, which the Bunning amendment 
addresses, and then there is Title B. That provides a flat sum of 
$150,000 and medical benefits to workers with cancer and beryllium 
disease.
  There are two ways for a worker to qualify for this compensation 
under Title B. The first is to qualify for automatic compensation as a 
member of a special exposure cohort. When we originally passed the 
bill, workers from Kentucky, Ohio, Tennessee, and Alaska were 
designated for this automatic compensation. My question is, Why not all 
the other atomic workers around the country? Why were they left out? 
Why should they not be included in part B? Why should those who worked 
in Iowa who were exposed not be included? So that is the special 
exposure cohort.
  The second way to qualify for the title B, the cancer and beryllium 
title, and the only method available to the workers in Iowa at the Iowa 
Army ammunition plant and at facilities in Missouri and at other 
facilities across the country, is to go through a process where a 
worker's dose of radiation is reconstructed based on all the documents 
and information gathered from the site.
  At the time the bill passed Congress in 2000, Congress recognized 
there would be situations where it was simply not feasible to 
reconstruct workers' doses because relevant records of dose are lacking 
or do not exist, or because it might take so long to reconstruct a dose 
for a group of workers that they will all be dead before we have an 
answer to who is eligible.
  That, unfortunately, is precisely the situation in which we find 
ourselves in Iowa. The Iowa Army ammunition plant facility was in 
operation, as I said, from 1947 to 1975. The people who worked there 
who are still alive are elderly, and they are ill. Many have died since 
we first passed the bill. Bob Anderson, the gentleman who first wrote 
to me about the fact that they made nuclear weapons in Iowa at this 
facility, will undergo surgery for thyroid cancer this week. That is in 
addition to the lymphoma from which he already suffers. Yet almost 4 
years into this program, only 38 Iowans have received compensation, and 
that 38 does not include a single person who suffers from cancer--not 
one.
  These people cannot afford to wait any longer. That is why I will be 
offering an amendment with Senator Bond to allow workers from our 
facility to receive automatic compensation as part of a special 
exposure cohort, the same as the workers in Kentucky, Ohio, Tennessee, 
and Alaska.
  Why should Iowa workers be added to the category entitled to this 
automatic compensation? Because what we have learned since 2000 is that 
Iowa has the single worst record of any facility in the country 
involved in nuclear weapons production. After 3 years of hard work by 
researchers at the University of Iowa and by the National Institute of 
Occupational Safety and Health, they have concluded there are no 
records anywhere that document the level of internal radiation exposure 
to which workers in Iowa were exposed--none, no records.
  With regard to external doses, which are measured by having workers 
wear badges, between 1948 and 1958 not one single worker in Iowa wore a 
dose badge--not one. So how can you reconstruct it when, for 10 years, 
they didn't even wear a dose badge? And, when they did begin wearing 
badges, it was minimal. Between 1959 and 1965, somewhere between 8 and 
35 workers a year wore badges out of a workforce of 800 to 1,000 at 
that facility. This is despite the fact that just this week, at a 
meeting of former workers, they told my

[[Page 12431]]

staff that based upon the way the plant was set up, at least 156 
workers a year were exposed to the highest levels at the plant.
  Listening to these workers, some of whom worked side by side while 
one wore a badge and the other didn't, gives a sense of just how 
totally lacking the facility was in terms of monitoring the radiation 
that these workers received. Up until 1968, the highest percent of the 
DOE employees who were monitored was 7 percent, and I am told that 
these were badges that workers wore on their collars while they were 
working with nuclear material at waist level.
  Just in the last couple of months, NIOSH, the National Institute of 
Occupational Safety and Health, has completed a ``site profile'' of the 
Iowa Army Ammunition Plant that acknowledges these grossly inadequate 
records. But what is their approach now? They believe they can 
reconstruct this dose that Iowa workers got by looking at an entirely 
different facility in Texas during an entirely different time period. 
This is not fair and it is not right. It is time to admit that Iowa is 
a site where it simply is not possible to perform dose reconstruction. 
The Government simply doesn't know what went on at the facility and to 
what the workers were exposed. That makes it impossible to perform 
timely dose reconstruction based on science.
  For example, in a site profile, NIOSH assumed that the entire work of 
the facility consisted of assembly work where the workers were 
protected from the most virulent types of radiation because the 
neutrons were already shielded with a hard coating when they arrived at 
the plant. But in a meeting with former workers, they spoke of how 
weapons were regularly disassembled. The protective outer coat was 
removed, exposing them to high doses of neutron radiation.
  I know the chairman is anxious to get on, but this is extremely 
important to hundreds of people in the State of Iowa who are sick today 
with cancer, who are sick today with other diseases, who worked in 
these plants, who never were told to what they were exposed. We have 
been fighting, I say to my friend from Virginia, we have been fighting 
for years to get these poor people covered and they are dying every day 
and they are not being compensated.
  Mr. WARNER. Mr. President, I have personally observed the Senator 
from Iowa and the Senator from Kentucky for years, and finally they 
have brought it to fruition. We are ready momentarily to act and accept 
the amendment.
  Mr. HARKIN. I know. I am supporting the amendment. What I am trying 
to say here on the Senate floor is that even with this amendment there 
are certain people in Iowa who, because of the way it is structured, 
will not be adequately compensated. What I am saying to my friend from 
Virginia and others on the Senate floor is there is a special program 
that exists in about four different States where if workers have cancer 
or beryllium illness, they are automatically compensated. In Iowa, 
because we have no records of dosages and these people have cancer from 
beryllium, they should have also been put into that special program. 
Why should atomic workers from one State be put into that and atomic 
workers from another State exposed to the same kind of radiation not 
be?
  That is the case I am making here. I support the amendment. It takes 
us a long way. It gets us out of the Department of Energy into the 
Department of Labor. But it does not address the part of the 
compensation program that provides for people with cancer. I am saying 
NIOSH cannot do it, cannot reconstruct the radiation doses of people 
suffering from devastating cancers. These people in Iowa I believe are 
being discriminated against. They cannot reconstruct valid doses.
  This is exactly the type of situation Congress foresaw when we passed 
this legislation in 2000. Former weapons complex workers in Iowa are 
old, they are sick, and they are dying. I mentioned one who just had a 
lymphoma operation, and he is now undergoing a thyroid operation this 
week. He was exposed year after year to deadly radiation.
  I will close by saying that at a meeting of workers in Burlington, 
IA, earlier this week we heard from a number of workers--one who worked 
with weapons for 3 years in the 1960s. Two of her children were born 
with very serious birth defects which the doctors themselves attributed 
to radiation exposure. She herself has now developed cancer. We heard 
from workers who talked about the hair on their legs and arms standing 
on end when they were near the weapons even though the weapons were 
cool to the touch. We heard from children whose parents had died when 
they were young because of lung cancer, kidney cancer, and other 
cancers, and who worked for years in this facility.
  What these people are seeking is not just about money; it is about an 
acknowledgment that they were put in harm's way without their 
knowledge. They are seeking an acknowledgment that they made a 
sacrifice on behalf of the good of this country and for the protection 
of this country. To require these workers to continue to wait for that 
justice is not fair and it is not right.
  I thank Senator Bunning and Senator Bingaman for their hard work on 
this amendment. This amendment, as I say, fixes one-half of the 
compensation system. This is a major step forward. I also say to my 
colleagues that we are not doing justice for all these workers.
  Senator Bond and I will be offering an additional amendment as we 
proceed on this bill.
  There is no reason we should not add the workers from these two 
facilities to the special exposure cohort. When we originally passed 
this bill, we created a fund with mandatory spending in the Department 
of Labor. The Congressional Budget Office analysis devotes almost $700 
million for payment of compensation to workers included in the special 
exposure cohorts--the cancer cohorts. Today, even though the vast 
majority of claims by workers in those four States who are eligible for 
this cohort have been paid, just over $400 million has been spent. But 
the Congressional Budget Office devoted $700 million. The money is 
there. The money has already been accounted for. We just ask that these 
workers be acknowledged for the sacrifices they made for their country 
and that they be included in the special cohorts.
  I again thank the Senator from Kentucky.
  I yield the floor.


                   Modification to Amendment No. 3438

  Mr. BUNNING. Madam President, I ask unanimous consent that my 
amendment be modified by the language currently at the desk.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The modification is as follows:

       At the end insert:


REVIEW BY CONGRESS OF INDIVIDUALS DESIGNATED BY PRESIDENT AS MEMBERS OF 
                                 COHORT

       Section 3621(14)(C)(ii) of that Act (42 U.S.C. 10 
     7384l(14)(C)(ii) is amended by striking ``180 days'' and 
     inserting ``60 days''.

  Mr. REID. Madam President, before this amendment is agreed to, I ask 
unanimous consent that the Senator from Washington be allowed to speak 
for up to 3 minutes on this amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Washington.
  Ms. CANTWELL. Madam President, I rise as a sponsor of the Bunning 
amendment, and I thank the Senator from Kentucky for his hard work--
both on the Energy Committee and here on the floor of the Senate.
  Obviously, we are taking a giant step forward in moving major 
responsibility for the Energy Employee Occupational Illness 
Compensation Program at the Department of Labor.
  There are thousands of people in Washington State who have been 
impacted by exposure while working at the Hanford Reservation. The 
issue is that in 2000, with passage of the original act, as my 
colleague from Iowa stated, we set up specific exposure cohorts that 
allowed workers in particular regions of the country to get

[[Page 12432]]

compensation based on their exposure to beryllium. But where we are 
today is there are still thousands of workers who have not had their 
claims processed.
  One of the reasons why claims haven't been processed is specific 
information doesn't exist or was not kept by the various employers at 
these reservation sites across the country to show what exposed 
employees endured. The issue then becomes that they have been left to 
fight their own battles--to fight to get compensation, to fight to 
prove they actually had exposure, and to fight to pay their medical 
bills.
  With thousands of people in Washington State affected by this, I have 
been a big supporter of those responsibilities over at the Department 
of Labor. Besides that, this great ombudsman program is where 
individual employees can go to ask for help and support in moving their 
cases.
  It also helps in establishing a willing payer. Some of the companies 
that have been involved in the cleanup process throughout the U.S. no 
longer exist. We have had employees who wanted to get compensation, and 
have proven their cases, only to find that no employer existed. This 
helps in establishing a willing partner and payer.
  But the most specific and positive aspect of this legislation is the 
step forward in saying, let us do site profiles. Site profiles are 
specifically the responsibility of the Department of Labor to go to a 
place such as the Hanford nuclear reservation and say, even though some 
of the employers may not have kept day-to-day logs and details about 
every specific employee and how they were exposed--and my colleagues 
have articulated on the Senate floor already how so many people in 
their States did not have records kept and went to get records by the 
Department of Energy only to find they didn't exist for the individual 
employee. When the Department of Labor does a site profile, it will 
help us when we come back and say that a large class of people at the 
Hanford Reservation and possibly these other sites around the country 
now qualify for compensation. This will help expedite that.
  The amendment that was modified by the Senator from Kentucky, which 
the Senator from Iowa worked on, is a very helpful amendment because it 
actually helps speed up that process of those site profiles.
  I don't think it is lost on my colleagues that many of these people 
are dying. Many of these people, by the time this program under the DOE 
was going to be finished, were never going to get the help they 
deserved.
  This amendment takes a very positive step forward in getting site 
profiles done, getting the information needed to prove that these 
people have been impacted, that they have had illness due to exposure 
on the job, and that they will not get some help.
  I yield the floor.
  Mr. WARNER. I urge adoption of the amendment.
  The PRESIDING OFFICER (Mr. Hagel). The question is on agreeing to the 
amendment, as modified.
  The amendment (No. 3438) was agreed to.
  Mr. WARNER. I move to reconsider the vote.
  Mr. LEVIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. WARNER. I will address the Senate with regard to a unanimous 
consent which has been crafted carefully on both sides of the aisle.
  I ask unanimous consent that Senator Graham now be recognized to call 
up his amendment No. 3428, and that it be further modified with the 
changes at the desk. I further ask consent that there be 15 minutes for 
debate equally divided on the amendment, and that following that time 
the amendment be agreed to and the motion to reconsider be laid upon 
the table.
  If further ask that following disposition of the Graham amendment, 
Leahy amendment No. 3292 be the pending question, and that I be 
recognized to send up a second-degree amendment, No. 3452.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                    Amendment No. 3428, As Modified

  Mr. GRAHAM of South Carolina. I send my modification to the desk.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The legislative clerk read as follows:

       The Senator from South Carolina [Mr. Graham], for himself 
     and Mr. Crapo, Mr. Craig, and Mr. Alexander, proposes an 
     amendment 3428, as modified.

  The amendment is as follows:

       On page 384, line 15, strike ``by rule in consultation'' 
     and all that follows through page 385, line 21, and insert 
     ``by rule approved by the Nuclear Regulatory Commission;
       (2) has had highly radioactive radionuclides removed to the 
     maximum extent practical in accordance with the Nuclear 
     Regulatory Commission-approved criteria; and
       (3) in the case of material derived from the storage tanks, 
     is disposed of in a facility (including a tank) within the 
     State pursuant to a State-approved closure plan or a State-
     issued permit, authority for the approval or issuance of 
     which is conferred on the State outside of this Act.
       (b) Inapplicability to Certain Materials.--Subsection (a) 
     shall not apply to any material otherwise covered by that 
     subsection that is transported from the State.
       (c) Scope of Authority To Carry Out Actions.--The 
     Department of Energy may implement any action authorized--
       (1) by a State-approved closure plan or State-issued permit 
     in existence on the date of enactment of this section; or
       (2) by a closure plan approved by the State or a permit 
     issued by the State during the pendency of the rulemaking 
     provided for in subsection (a).

     Any such action may be completed pursuant to the terms of the 
     closure plan or the State-issued permit notwithstanding the 
     final criteria adopted by the rulemaking pursuant to 
     subsection (a).
       (d) State Defined.--In this section, the term ``State'' 
     means the State of South Carolina.
       (e) Construction.--(1) Nothing in this section shall 
     affect, alter, or modify the full implementation of--
       (A) the settlement agreement entered into by the United 
     States with the State of Idaho in the actions captioned 
     Public Service Co. of Colorado v. Batt, Civil No. 91-0035-S-
     EJL, and United States v. Batt, Civil No. 91-0054-S-EJL, in 
     the United States District Court for the District of Idaho, 
     and the consent order of the United States District Court for 
     the District of Idaho, dated October 17, 1995, that 
     effectuates the settlement agreement;
       (B) the Idaho National Engineering Laboratory Federal 
     Facility Agreement and Consent Order; or
       (C) the Hanford Federal Facility Agreement and Consent 
     Order.
       (2) Nothing in this section establishes any precedent or is 
     binding on the State of Idaho, the State of Washington, the 
     State of Oregon or any other State for the management, 
     storage, treatment, and disposition of radioactive and 
     hazardous materials.


                   national academy of sciences study

       (a) Review by National Research Council.--Not later than 30 
     days after the date of the enactment of this Act, the 
     Secretary of Energy shall enter into a contract with the 
     National Research Council of the National Academies to 
     conduct a study of the necessary technologies and research 
     gaps in the Department of Energy's program to remove high-
     level radioactive waste from the storage tanks at the 
     Department's sites in South Carolina, Washington and Idaho.
       (b) Matters To Be Addressed in Study.--The study shall 
     address the following:
       (1) The quantities and characteristics of waste in each 
     high-level waste storage tank described in paragraph (a), 
     including data uncertainties;
       (2) The technologies by which high-level radioactive waste 
     is currently being removed from the tanks for final disposal 
     under the Nuclear Waste Policy Act;
       (3) Technologies currently available but not in use in 
     removing high-level radioactive waste from the tanks;
       (4) Any technology gaps that exist to effect the removal of 
     high-level radioactive waste from the tanks;
       (5) Other matters that in the judgment of the National 
     Research Council directly relate to the focus of this study.
       (c) Time Limitation.--The National Research Council shall 
     conduct the review over a one year period beginning upon 
     execution of the contract described in subsection (a).
       (d) Reports.--
       (1) The National Research Council shall submit its 
     findings, conclusions and recommendations to the Secretary of 
     Energy and to the relevant Committees of jurisdiction of the 
     United States Senate and House of Representatives.
       (2) The final report shall be submitted in unclassified 
     form with classified annexes as necessary.
       (e) Provision of Information.--The Secretary of Energy 
     shall make available to the National Research Council all of 
     the information necessary to complete its report in a timely 
     manner.
       (f) Expedited Processing of Security Clearances.--For 
     purposes of facilitating the commencement of the study under 
     this

[[Page 12433]]

     section, the Secretary of Energy shall expedite to the 
     fullest degree possible the processing of security clearances 
     that are necessary for the National Research Council to 
     conduct the study.
       (g) Funding.--Of the amount authorized to be appropriated 
     in section 3102(a)(1) for environmental management for 
     defense site acceleration completion, $750,000 shall be 
     available for the study authorized under this section.

  The PRESIDING OFFICER. The Graham amendment is so modified.
  Mr. GRAHAM of South Carolina. We have 7\1/2\ minutes?
  The PRESIDING OFFICER. The Senator has 7\1/2\ minutes.
  Mr. GRAHAM of South Carolina. Mr. President, I would like to speak 
for 2 minutes.
  The PRESIDING OFFICER. The Senator from South Carolina is recognized.
  Mr. GRAHAM of South Carolina. Mr. President, many thanks to a lot of 
people for resolving an issue important to South Carolina. This 
amendment is a work product of Senators Crapo, Craig, myself, and 
others. Senator Crapo has been terrific to work with, along with 
Senator Craig.
  We have now put into place an amendment that well defines what we 
were trying to do. I am trying to clean up 51 tanks of 37 million 
gallons of high-level nuclear waste in South Carolina, 23 years ahead 
of schedule, saving $16 billion. My intent has been to do just that and 
no more.
  The Crapo-Craig-Alexander amendment clearly says the agreement 
between DOE and South Carolina is South Carolina specific. Senator 
Alexander's language says the Nuclear Regulatory Commission will always 
retain the power to determine what high-level versus low-level waste 
is. The $350 million in question will flow to Idaho and Washington 
regardless of an agreement or the lack thereof. The Crapo-Graham 
amendment has been worked with Senator Cantwell, and it does not 
prevent the disposition plan that has been agreed to in South Carolina.
  I thank all Members. There will come a day when Idaho and Washington 
will need like help, and I will be there. I want the people in South 
Carolina to know without the help of Washington and Idaho, this would 
not have happened. There will be a day when they need our assistance, 
and I will be there. This is a win-win. There is nothing in this 
amendment that will prevent section 3116 from moving forward.
  I yield back any time I have.
  Mr. ALEXANDER. Mr. President, I express my gratitude to the Senators 
from Idaho, and the Senator from South Carolina for working with me on 
this amendment. I voted against the Cantwell motion to strike because 
Senator Graham agreed to work with me in making some modifications to 
the underlying bill.
  I am not opposed to reclassification of radioactive waste. What I 
believe is that the Nuclear Regulatory Commission must have a central 
role in this process.
  The bill as it stands now grants the Department of Energy the right 
to reclassify nuclear waste from high-level to low-level waste. Under 
current law, only the NRC has authority to define high-level and low-
level radioactive waste. Congress gave the NRC that authority in the 
Nuclear Waste Policy Act of 1982. The NRC's authority should be 
maintained. We should keep that authority in the hands of one 
regulatory agency.
  This perfecting amendment ensures that the NRC has the final say in 
any re-classification criteria. One amendment would modify Section 3116 
of the bill to require the NRC to approve the criteria that the DOE 
uses to determine whether waste incidental to reprocessing is high-
level or low-level radioactive waste. This would maintain the NRC's 
authority over defining radioactive waste.
  I hope my colleagues will support quick adoption of this amendment.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAPO. I appreciate the opportunity to speak on this amendment. I 
appreciate the hard work of all those involved as we have negotiated 
these very important issues to the Nation, particularly to the States 
of South Carolina, Idaho, and Washington.
  When we put together the South Carolina language last week and 
debated it in the Senate, there was a question raised whether that 
would cause any impact with regard to agreements that had been reached 
or to negotiations that were underway between the State of Idaho and 
the Department of Energy and Washington and the Department of Energy.
  This amendment makes it very clear that there is no precedent value 
of the South Carolina language that would impact or in any way alter or 
amend the agreements of the State of Idaho and the State of Washington 
that they have with the Department of Energy, or create any precedent 
for any negotiations now underway between those two States.
  The language says that nothing in the section shall alter, affect, or 
modify the full implementation, and it lists the various agreements for 
Idaho, most important of which is the Batt agreement.
  Then it says:

       (2) Nothing in this section establishes any precedent or is 
     binding on the State of Idaho, the State of Washington, the 
     State of Oregon, or any other State for the management, 
     storage, treatment, and disposition of radioactive and 
     hazardous materials.

  It is very clear by statutory language now--if it was not already 
clear before, which we believe it was--that the South Carolina 
agreement stands by itself. The States of Idaho, Washington, and all 
other States will be free to negotiate their own arrangements and 
relationships with the Department of Energy.
  Again, I thank Senator Craig, Senator Alexander, and Senator Graham 
for working so closely with me. Senator Cantwell from Washington has 
worked closely with us on this issue. I appreciate everyone coming 
together with a strong resolution to resolve these critical issues.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Mr. President, I thank the chairman of the Defense 
Authorization Committee for his cooperation and the ranking member for 
allowing Idaho and Washington and South Carolina to resolve what was 
and has been, at some points along the way, a contentious issue. But 
foremost, I thank my colleague from Idaho, Mike Crapo, for the 
diligence that he has put into making sure that Idaho remains whole in 
its agreement, that Washington remains whole in its agreement, and that 
South Carolina be allowed to gain an agreement with the Department of 
Energy, and, if you will, to wipe away the fog that had been created by 
a court decision that did not, in the opinion of the Department of 
Energy and the OMB, allow them a clear path forward to continue to 
spend money for the purposes of cleanup.
  We think this language allows that clear path forward while allowing 
the State of South Carolina to arrive at an agreement different from 
that which the State of Idaho or the State of Washington has.
  I agree, the language is not precedent-setting. Idaho is still very 
whole in the relationship it has currently with the Department of 
Energy. My goal, and the goal of the other Senator from Idaho, Mike 
Crapo, has always been to assure that cleanup goes forward without a 
hitch, and this language will allow that to happen, for the $90-plus 
million that was dedicated to cleanup in Idaho for this coming year to 
be allowed to be applied for that purpose. We think that is critically 
important as we move down this path.
  We have worked closely with the State of Idaho. We think this does 
meet the concern of the State of Idaho. They have vetted this language 
and understand it clearly. We hope we have now resolved any question 
anyone might have as to Idaho's role and primacy as it relates to its 
relationship with the Department of Energy for the purposes of cleanup.
  I say to the chairman, thank you for your willingness to be flexible 
as we have worked out these difficulties.
  I appreciate the positions and concerns of the Senator from 
Washington. We hope this language keeps Washington as whole as we 
believe it does and as we believe it keeps Idaho, while allowing the 
State of South Carolina to

[[Page 12434]]

proceed down a path that could be somewhat different from that which we 
might choose.
  With that, I yield the floor.
  Mr. ALEXANDER. Madam President, I wish to express my gratitude to the 
Senator from Idaho and the Senator from South Carolina for working with 
me on this amendment and allowing me to be a cosponsor. I voted against 
the Cantwell motion to strike because Senator Graham agreed to work 
with me in making some modifications to the underlying bill.
  I am not opposed to reclassification of radioactive waste. What I 
believe is that the Nuclear Regulatory Commission must have a central 
role in this process.
  The bill, as it stands now, grants the Department of Energy the right 
to reclassify nuclear waste from high-level to low-level waste. Under 
current law, only the NRC has authority to define high-level and low-
level radioactive waste. Congress gave the NRC that authority in the 
Nuclear Waste Policy Act of 1982. I think the NRC's authority should be 
maintained. We should keep that authority in the hands of one 
regulatory agency.
  This perfecting amendment ensures that the NRC has the final say in 
any reclassification criteria. Our amendment would modify Section 3116 
of the bill to require the NRC to approve the criteria that the DOE 
uses to determine whether waste incidental to reprocessing is high-
level or low-level radioactive waste. This would maintain the NRC's 
authority over defining radioactive waste.
  I hope my colleagues will support quick adoption of this amendment.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Mr. President, are we ready to vote on this matter?
  I urge adoption of the amendment.
  The PRESIDING OFFICER. There is still 7\1/2\ minutes remaining for 
debate.
  Mr. WARNER. Mr. President, I yield back the time.
  The PRESIDING OFFICER. The question is on agreeing to the amendment.
  The amendment (No. 3428) was agreed to.
  Mr. WARNER. I move to reconsider the vote.
  Mr. CRAIG. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The Senator from Washington.
  Ms. CANTWELL. Mr. President, I had wished to speak on the previous 
amendment. I thought that was part of the agreement, but I will be more 
specific now, since the amendment has just been adopted by voice vote; 
and that is to say, the amendment allows us to do a study, it allows 
the Department of Energy to receive information from the National 
Academy of Sciences in the future about the ground water conditions and 
environmental conditions from any kind of proposal or plan on which the 
Department of Energy would like to move forward.
  I think my colleague from South Carolina said it best when he said 
our colleagues in the Senate have probably learned more in the last few 
weeks about nuclear waste and our responsibilities as the Federal 
Government than they have at any previous time.
  But I guess I disagree with my colleagues. This debate is far from 
over. I do not agree with the underlying bill or where it is going in 
changing the definition of nuclear waste. No State in America should be 
allowed, on the Environmental Protection Act, on the Clean Water Act, 
on any legislation, to cut a deal behind closed doors with the Federal 
Government and think they are going to stick the American consumer with 
waste in their backyard.
  While this particular amendment that we just voice-voted will allow 
us to say that we want this to look no further than what South Carolina 
is proposing, and that we want DOE to do its job in providing an 
environmental study and analysis of this issue, this issue is far from 
over for the American people.
  This issue not only impacts my State, and the States of Oregon and 
Idaho, it affects every Western State. The reason it affects every 
Western State is because the Department of Energy has been trying to 
reclassify waste all over the West, push it into New Mexico, cut it 
across Arizona, and demand that waste from South Carolina be accepted 
in Washington State. We just had to file suit recently because high-
level waste from South Carolina was illegally sent to Washington State.
  So while I support my colleagues' efforts today to clarify that, more 
study and analysis should be made. This debate is far from over, and 
this body needs to understand that it is reclassifying the definition 
of high-level waste to a lower level, which will make all Americans 
less secure, and certainly the drinking water in South Carolina and in 
Washington State, if this is not resolved, less secure for people.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM of South Carolina. Mr. President, very briefly, the 
amendment has been adopted, and I would like to make a comment or two 
for those who may still be listening.
  The membership has been challenged for 3 weeks now to find a way to 
deal with the problem. Here is the simple problem: For over a year, 
South Carolina, Washington, and Idaho have been trying to negotiate 
with DOE a way to clean up tank farms that have a lot of high-level 
waste.
  In my State, there are 37 million gallons of high-level liquid waste 
in tanks that are over 50 years old. There are only 51 of them. For 
about a year now we have been negotiating with DOE to define what is 
``clean'' and how we can best close up those tanks. We have been able 
to take the liquid out of two of the tanks and come up with a plan that 
has been approved by the Nuclear Regulatory Commission that says that 
the inch and a half of waste left in those two tanks is no longer high-
level waste because of scientific treatment.
  We want to apply that same concept to the other tanks. What I am 
trying to do in South Carolina is good for South Carolina's 
environment. It has been approved by the Nuclear Regulatory Commission 
as being safe. It has been approved by the Defense Waste Policy Board 
as being safe. It does not prejudice Idaho or Washington that have 
similar problems.
  I do appreciate the fact that the body has allowed this agreement to 
go forward. South Carolina will save $16 billion, and it will allow the 
tanks to be closed up 23 years ahead of schedule.
  I am willing to work with any Senator from any State who has similar 
problems. I am not willing to sit on the sidelines and disallow my 
State to move forward in an environmentally and economically sound 
fashion to address a real problem South Carolinians face. We have done 
nothing to prejudice anybody else. We have not changed any standards, 
given any authority to DOE at the expense of the Nuclear Regulatory 
Commission.
  A lot of demagoguery is going on here, but it is time to clean up 
these sites and stop demagoguing. I hope one day Washington can find an 
agreement to clean up the tanks and alleviate their ground water 
problems. If they need help from Congress, I will be there. But I urge 
Idaho and Washington and other States to try to work to get these 
matters behind us.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Mr. President, I thank the Senator for his hard work.


                Amendment No. 3452 To Amendment No. 3292

  Mr. President, I believe the Senate is ready to turn its attention to 
the amendment from the distinguished Senator from Vermont. Am I correct 
in that?
  The PRESIDING OFFICER. That is correct.
  The clerk will report the second-degree amendment.
  The legislative clerk read as follows:

       The Senator from Virginia [Mr. Warner] proposes an 
     amendment numbered 3452 to amendment No. 3292.

  The amendment is as follows:

 (Purpose: To extend jurisdiction and scope for current fraud offenses)

       On page 1, strike line 2 and all that follows through page 
     4, line 11, and insert the following:

[[Page 12435]]

       (a) Statements or Entries Generally.--Section 1001 of title 
     18, United States Code, is amended by adding at the end the 
     following:
       ``(d) Jurisdiction.--There is extra-territorial Federal 
     jurisdiction over an offense under this section.
       ``(e) Prosecution.--A prosecution for an offense under this 
     section may be brought--
       ``(1) in accordance with chapter 211 of this title; or
       ``(2) in any district where any act in furtherance of the 
     offense took place.''.
       (b) Major Fraud Against the United States.--Section 1031 of 
     title 18, United States Code, is amended by adding at the end 
     the following:
       ``(i) Jurisdiction.--There is extra-territorial Federal 
     jurisdiction over an offense under this section.
       ``(j) Prosecution.--A prosecution for an offense under this 
     section may be brought--
       ``(1) in accordance with chapter 211 of this title;
       ``(2) in any district where any act in furtherance of the 
     offense took place; or
       ``(3) in any district where any party to the contract or 
     provider of goods or services is located.''.

  Mr. WARNER. Mr. President, my understanding is that the second-degree 
amendment from the Senator from Virginia is now before the Senate.
  The PRESIDING OFFICER. That is correct.
  Mr. WARNER. Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, as I understand it, there is no time 
agreement on the second-degree amendment; is that correct?
  The PRESIDING OFFICER. That is correct.
  Mr. LEAHY. Nor do I think there will be. I realize the second-degree 
amendment is designed--whether intentionally or otherwise--to protect a 
number of the major corporations now working in Iraq, some of which 
have been involved with overcharging our military and profiting on the 
war. It is unfortunate that we would try to protect those who are 
gouging the American taxpayers.
  After World War II and after the Korean War, we put in a war 
profiteering amendment similar to what I offered, and I would say to my 
distinguished friend from Virginia, we passed a similar war 
profiteering amendment on the Iraq supplemental appropriations bill 
last year. But when it came up in conference with the other body, even 
though they are independent Members of the House, several of them were 
very candid and told me they had been directed by the White House to 
remove it and had heavy pressure brought by Halliburton and others. So 
they had to remove the war profiteering amendment.
  I actually thought we were elected not by corporations, whether it is 
Halliburton or anybody else, and not appointed by the White House, but, 
rather, are here to do the American people's business.
  Now, be that as it may, I would hope that at some point we would get 
to the underlying amendment, and it would actually be the law today 
except that the White House and Halliburton and others told the 
Republican majority, the leadership in the other body, that they had to 
take it out, which they did.
  I commend the majority of Senators, both Republicans and Democrats, 
who supported it originally and have been willing to resist the 
pressure of the White House.
  Over the last few weeks, the news has been dominated by events in 
Iraq. We are still trying to figure out exactly what went wrong in Abu 
Ghraib prison as well as other detention centers around the world. 
There has been some disagreement on this issue, but I think we have 
already learned a couple of lessons.
  We need to improve transparency. We need to improve accountability. 
We need to put in place strong measures to prevent illegal and immoral 
acts. The reason for doing this is simple. Bad behavior by a few can 
lower morale among American soldiers. It can undermine support at home 
for the mission, and it could damage the work of the vast majority of 
brave men and women who are trying to do the right thing, trying to 
make life better, and are putting themselves in harm's way every day. 
By all means, we ought to take action in this body to make sure that no 
corporation or group can come in and make obscene profits or engage in 
war profiteering while our American men and women are putting their 
lives on the line for their country. We should not have anybody come in 
and say: Here is a great way to make some huge profit off their 
suffering and off the suffering of the Iraqi people.
  So my amendment does not have anything to do with the recent prison 
abuses in Iraq, but it does address the serious issues I mentioned. It 
addresses the serious and sinister problem of war profiteering that can 
harm our mission there and around the world.
  Senator Harry Truman served with distinction in this body and 
conducted Senate committee investigations into war profiteering during 
World War II. Then-Senator Truman, later President, said on this issue:

       No one objects to a fair profit . . . [I]t is our duty . . 
     . to protect the patriotic majority of war contractors 
     against a stigma of profiteering generated by the self 
     seeking minority. We intend to see that no man or corporate 
     group of men shall profit inordinately on the blood of the 
     boys in the fox holes.

  Today we have both men and women on the frontlines. And we have a lot 
of companies over there who are putting their own people in harm's way. 
They are doing it with the best interests of our country and the best 
interests of the Iraqi people. They are doing it very bravely. They are 
not doing it to profit from the war. As Harry Truman said: We have to 
take care; we have ``to protect the patriotic majority of war 
contractors against the stigma of profiteering generated by the self 
seeking minority.''
  All my amendment says is that while most of the people over there 
will be playing by the rules, for those who are not, we are going to 
hold you accountable.
  As a former prosecutor, I know nothing focuses the minds of those who 
are committing crimes more than knowing somebody can put them in prison 
for a long time. I will give you an easy example. If you have five 
warehouses lined up and four of them have heavy locks on the doors and 
one doesn't, that is the one that usually gets burgled. In this case, 
most people are going to be very honest. But without the locks on the 
doors, there are going to be some who try to get away with ripping off 
the American taxpayers.
  I would hope that everybody in this body, Republican and Democrat, 
would agree with what President Truman said. I am concerned because we 
have seen one bad headline after another--the Wall Street Journal, the 
Washington Post, the New York Times, and others--about Government 
contracts in Iraq.
  In addition, Time magazine recently reported on an e-mail sent by a 
Pentagon official that raises serious questions involving Vice 
President Cheney's office, the White House, and the Vice President's 
former employer, Halliburton. This is what the e-mail says: A 
multibillion-dollar Halliburton contract was approved ``contingent on 
informing White House tomorrow. We anticipate no issue since action has 
been coordinated with Vice President's office.''
  And right on schedule, 3 days later, the Army Corps of Engineers gave 
Halliburton a multibillion-dollar contract, and they did it without 
seeking any other bids. This does not look like a typical heads-up 
memo, as the Vice President's office is now claiming. To this former 
prosecutor from Vermont, it looks like a coordinated scheme to enrich 
Halliburton at taxpayer expense with no-bid contracts.
  This latest revelation underscores the need to address this issue. 
Even if there is a reasonable explanation for this outrageous e-mail--
and I am still waiting to hear what it is--we have to put in place 
tough measures to address this issue. I think we have to send a clear 
message that lining one's pockets, especially while our troops are in 
harm's way, is simply unacceptable.
  I hope my amendment, if we are allowed to vote on it, will put a stop 
to these scandals. This amendment should pass unanimously. I am sorry 
that the Republican leadership has decided to put what I could only 
call ``a hold Halliburton harmless'' second-degree amendment in here. I 
hope that those

[[Page 12436]]

majority of Senators, Republicans and Democrats alike, who voted for 
this amendment last year will vote against the second-degree amendment 
and vote for this amendment. Vote against the ``hold Halliburton 
harmless'' amendment and vote for the war profiteering prevention 
amendment.
  The war profiteering prevention amendment, if it becomes part of law, 
will send a very clear signal. I don't care what the corporation is, 
whether the corporation is from Vermont or anywhere else, it will send 
a very clear signal: Play by the rules. But if you don't play by the 
rules, just as Harry Truman said after World War II, we are going to 
hold you accountable.
  Mr. President, I ask unanimous consent, at the request of the 
distinguished chairman, that we be allowed to go into a quorum call 
until the hour of 2 p.m.; that then, by consent, the call of the quorum 
be rescinded and the Senator from Vermont be recognized again.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, under the unanimous consent request, I 
suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be dispensed with.
  The PRESIDING OFFICER (Mr. Sununu). Without objection, it is so 
ordered.
  Mr. LEAHY. Mr. President, I appreciate the concern of the 
distinguished senior Senator from Virginia in trying to find a way 
through this.
  I want to make it very clear about what we have. The war profiteering 
bills President Truman spoke of after World War II were civil bills. 
This is a criminal statute. Actually, the criminal statute is more 
protective of the contractors because it requires a higher level of 
proof. As a former prosecutor, I much prefer the idea that someone 
thinks they are not just going to pay a fine, they might face prison.
  Second, this passed in almost exactly this form in the supplemental 
appropriations bill. It was debated and passed as a separate measure in 
the committee. The amendment then became part of the Supplemental which 
passed the Senate by a wide margin. The amendment we are considering 
today is different only in two respects. This one applies to all 
countries; at that time, it applied only to Iraq. Second, the amendment 
the Senate passed earlier contained a sunset. The amendment here today 
does not.
  When we went to conference, the House did not have a similar piece of 
legislation. The distinguished chairman of the Appropriations 
Committee, Senator Stevens, proposed they accept ours. They had a 
rollcall vote and, by party line, refused it. Senator Stevens had 
modified it with, I believe, a 7-year sunset. That was not accepted.
  Several Republicans were very forthright in saying they were under 
pressure from the White House not to accept it. Some suggested they 
were under pressure from corporations that were major contributors. I 
suggested if there is a bad case of war profiteering, they may come 
back to regret it.
  Senator Stevens very correctly wanted to make it clear that all 
Republicans and all Democrats on the Appropriations Committee, in the 
committee of conference, had supported this. It had been part of a bill 
we passed overwhelmingly, if not unanimously, in this body early. 
Because the House would not accept it, it was dropped.
  Obviously, every Senator has to vote the way he or she wants, but as 
war profiteering goes on, it is something each Senator has to answer to 
his or her constituents.
  Mr. DURBIN. Will the Senator yield?
  Mr. LEAHY. I yield, without losing my right to the floor.
  Mr. DURBIN. I think the Senator said this, but I believe it should be 
repeated. Is this not the same issue we have voted on before? Did the 
Senator from Vermont offer earlier an amendment which would have 
created criminal penalties for those companies which are illegally 
profiting from the war in Iraq? Did the Senator offer a similar 
amendment last year?
  Mr. LEAHY. Mr. President, if I might retain my right to the floor, 
the senior Senator from Illinois is absolutely correct; I did. I 
offered it. We had a debate within the Appropriations Committee to 
accept it within the Appropriations Committee and it became part of the 
bill.
  My earlier statement may have left confusion, and I apologize. There 
was no intention of doing that. It was part of the appropriations bill 
and thus not voted on by the Senate although there was not a single 
amendment to strike that provision. There were various amendments, as 
the Senator may recall, that were proposed during the appropriations 
bill on the Senate floor, but no one moved to strike this. It passed 
93-0. About the only difference in that bill, as I recall, was the 
amendment spoke only to Iraq. This includes other countries besides 
Iraq.
  Yes, we voted on it, we passed it, and then the Senate offered it as 
their position. Both Republicans and Democrats offered it as our 
position to the other body, which rejected it on a party-line vote at 
the request of the White House.
  Mr. DURBIN. I ask, through the Presiding Officer, if the Senator from 
Vermont would further yield for a question, if I am not mistaken, the 
Senator from Vermont came to Members initially and said creation of a 
criminal penalty for companies that profiteer illegally from the war in 
Iraq is modeled after a similar law proposed and enacted during the 
time of Harry Truman when he was looking at the very same question 
relative to World War II.
  I recall during the course of that debate--and I will ask the Senator 
if my recollection is correct--that the Senator said, when we were 
asked to vote for this amendment, we were really trying to establish 
the same type of standard we used in every war when some individuals 
and some companies exploited the situation in a war to make an illegal 
profit. We do not want that to occur. It is not the fair to the 
taxpayers, it is not fair to the soldiers, it is not fair to America, 
and they should be held criminally accountable.
  I ask the Senator from Vermont, if this amendment passed so 
overwhelmingly before, why is there any hesitation today to take this 
Harry Truman precedent and say those who misuse a war, where American 
lives are at stake, and profiteer should be held criminally liable for 
their misconduct?
  Mr. LEAHY. Mr. President, if I might, the Harry Truman proposal, 
course, was civil. This is a criminal law.
  Mr. WARNER. That is very important. Harry Truman was civil.
  Mr. LEAHY. If the Senator would let me finish.
  The Harry Truman amendment was civil. This is criminal. Thus, this is 
more protective of a defendant because, as the distinguished Senators 
know, and certainly those who have been prosecutors know all too well, 
in a criminal case you have to prove beyond a reasonable doubt. A civil 
case can often be the preponderance of the evidence. This is more 
protective of both sides. But it holds the hammer of a criminal 
proposal. This has tough criminal penalties for individuals who defraud 
the American taxpayer. It provides a maximum criminal penalty of 20 
years in prison and fines of up to $1 million.
  The reason we did criminal rather than civil, there was a time when 
if you proposed a $10 million fine back at the time of Harry Truman, 
that was a lot of money. We have had at least one company that has 
already had to pay back money on overcharging and profiteering. They 
spend more than that $10 million on a weekend running ads saying how 
good they are at feeding the troops. But if you are facing a criminal 
penalty and might go to the slammer, then you think about it.
  I will state why this is necessary. For example, if we wanted to use 
current law, which is basically what the second-degree amendment is, 
current law does not specifically outlaw war profiteering. My 
amendment, which the Senator from Illinois has spoken about,

[[Page 12437]]

does specifically outlaw war profiteering. We wanted to go as a second-
degree amendment. Current statute does not say that U.S. courts have 
explicit and uncategorical jurisdiction over fraud and profiteering in 
Iraq. My amendment does. If we tried to just take current law, where 
are we? My amendment eliminates unnecessary thresholds, for example, to 
prove mail and wire fraud, and the current statutes do not. And, of 
course, a 20-year felony.
  There really are no laws on the books that address war profiteering. 
There are laws on the books for murder, laws on the books for rape, 
laws on the books for armed robbery, but there is nothing that goes 
specifically into war profiteering. Frankly, what I want to do is not 
just to throw people in the slammer; I want to stop them from doing it 
in the first place.
  This is a real deterrent. If you have a prosecution that says you can 
go to jail, not just pay a fine, which is small change for some of 
these companies, but you might actually go to jail, somebody is going 
to say: Wait a minute. We can't triple charge for this. We can't triple 
charge for these hotels. We can't triple charge for these cars--and so 
on.
  Mr. DURBIN. If the Senator from Vermont will further yield for a 
question?
  Mr. LEAHY. Yes, without losing my right to the floor.
  Mr. DURBIN. Mr. President, I would like to ask the Senator from 
Vermont about three specific reports that have come out in the news 
recently about Halliburton and about their practices with sole-source 
contracts in Iraq, where they literally are not competing with any 
other company for these contracts, and they are cost-plus contracts.
  I would like to ask the Senator from Vermont if the amendment which 
he is proposing might apply with a criminal penalty in these cases. It 
was reported last week that Halliburton and its subsidiaries were 
literally driving empty trucks back and forth on the highway, billing 
the Federal Government for each trip, when in fact they were not even 
transporting any supplies or equipment for our troops.
  It was reported this morning that this same Halliburton operation, if 
they had a flat tire on a truck, they would abandon the $85,000 truck 
by the side of the road or torch the truck rather than try to get it 
repaired because each and every truck was just another cost-plus item 
on a Federal contract.
  And then it was further disclosed they were incorrectly billing the 
Federal Government, charging for 240,000 cases of soda pop--if you can 
imagine--but they were delivering 240,000 cans of soda pop. So it was a 
dramatic overstatement of what they were supposed to be providing for 
the troops.
  I ask the Senator from Vermont, when you consider the fact that we 
have 138,000 of our finest men and women risking their lives literally 
in Iraq, how can we possibly turn our backs on this type of outrageous 
profiteering that has been alleged? Why would it not be a crime? And 
why would this Senate even hesitate from establishing a criminal 
penalty when we have a situation that is costing the taxpayers over $1 
billion a week to sustain our war effort in Iraq?
  Mr. LEAHY. Mr. President, the Senator from Illinois raises the exact 
right point. You read these accounts in the press. I referred to the e-
mail traffic which has just come out about a multibillion-dollar 
noncompetitive contract given to Halliburton after they had sent e-
mails saying it was being cleared by the Vice President's office or it 
was OK with the Vice President's office, and there are the things you 
have talked about, the obvious things about war profiteering.
  Now, had the other body left the amendment in, the amendment that was 
part of the appropriations bill that we passed overwhelmingly--I think 
87 to 12 here in the Senate--had they left that in the final bill, had 
they stood up to the White House and not allowed them to convince them 
to strip it out, then the kinds of actions the Senator from Illinois is 
talking about would be prosecutable.
  I would suggest they probably never would have happened. The 
taxpayers would have saved those millions upon millions of dollars 
because somebody would have told them back at corporate headquarters: 
Hey, guys, you can go to jail if you do this. It is not just the case 
that if you get caught, you might have to pay the money back, but you 
can go to jail if you do this. And that would stop it.
  Now, if we pass this today, it still has to be signed into law, and 
it would be prospective. Unfortunately, because the other body 
basically gave in to the importunings of the White House and took out 
the amendment, the war profiteering amendment which had been part of 
the bill that every one of us on this floor voted for, we cannot do 
anything about that. Had that been put into law, as it should have 
been, I suspect the activities that the Senator from Illinois has 
talked about would not have occurred because whoever is on the ground 
is going to call back and say: Hey, guys, it might sound good to you 
back home there, but I am not going to go to jail. I am not going to go 
to jail just to raise a little more money. I am not going to go to jail 
just because you say if you get caught you may have to pay it back, and 
it wouldn't happen.
  What I am saying is this: When companies, especially some companies 
that have been accused of this, will spend more money in a few days 
here in Washington running ads to convince 535 Members of Congress how 
wonderful they are than they could possibly pay in fines, they do not 
care. You could leave whatever laws are on the books now. You could 
leave the possibility of paying it back. Because what happens? If you 
are a company and you go ahead and profiteer, you do war profiteering, 
you overcharge, you do whatever these other things are, and you do it 
10 times, and you get caught 3 times, and they say: You are going to 
pay back those millions you overcharged--you say: Gosh, almighty, you 
got me. Gee, I'm sorry. Gee whiz. Here it is. And you tell your 
bookkeepers: They didn't find the other 7. We are ahead of the game.
  On the other hand, if you do it 10 times, and you get caught on 3 of 
them, and suddenly people start going to jail, these other companies 
are going to say: Wait a minute, no-bid contracts or not, I am not 
going to take the chance.
  If we want to stand up for the American taxpayers, if we want to say 
we are tough on crime, let's say criminals go to jail. That is all 
there is. Let's try this law. Let's see. Maybe if this is on the books 
people will stop profiteering.
  What drives me up the wall is we have 140,000 very brave men and 
women--American men and women--over there under arms who are trying to 
do their best and getting shot at every day. I was at a funeral in 
Vermont this week for one of them, as I have been on several other 
occasions. They are putting their lives on the line. They are getting 
paid what a corporal or a sergeant gets paid, and they should not have 
to be putting up with companies back here making obscene profits on 
what they do. They put their lives on the line.
  What I am saying is, some of the people who are making these obscene 
profits, they ought to at least go to jail. They ought to at least go 
to jail. I was thinking of that this week when I was at that funeral in 
Vermont. These are brave American men and women. I know every one of us 
here applauds their bravery. But I do not want to see companies, 
whether they are American companies or any other companies, making 
money on our sons and daughters who are over there putting their lives 
on the line.
  That is why I want this amendment. That is why we should have kept it 
in the bill before. Frankly, we ought to keep it in now. Now, I fully 
understand that the White House comes out here and says: We don't want 
to tamper with these people. We don't want to put the brakes on them. 
They can get the votes to knock down this amendment, but it is wrong. 
It is wrong. And I suggest that some of those who lobby against this 
kind of amendment go to some of these funerals--go to some of these 
funerals--and tell them we will protect the people who are 
profiteering. It is wrong. It is wrong. We ought to be protecting them.

[[Page 12438]]


  Mr. WARNER. Mr. President, will the Senator yield for a question?
  Mr. LEAHY. Mr. President, I yield without losing my right to the 
floor, of course.
  Mr. WARNER. A question: Is there some opportunity such that I can 
present the Senate with an explanation of why I felt there should be a 
second degree? I would like to do it in just a dispassionate, 
straightforward manner, and let the Senate then make its decision. So I 
would like to have the opportunity. I hope in due course to present my 
side of this issue.
  Mr. LEAHY. Mr. President, regaining my right to the floor, of course 
I am willing to offer the appropriate courtesy, very soon, to the 
Senator from Virginia. He is one of the most distinguished Members of 
this body, and, more importantly, he and I have been close friends for 
over a quarter of a century.
  I say to the Senator, I wonder if you might consider this: have a 
vote on your amendment, and have a vote on my amendment separately, and 
let the Senate work its will. The distinguished senior Senator from 
Virginia is going to be the Senate chairman in the committee of 
conference. It gives him that much more control. But why not let the 
U.S. Senate vote on each amendment separately and then see where it 
goes from there?
  I will say this very frankly. I think the reason nobody moved to 
strike my amendment out of the appropriations bill was that--I heard 
this from both sides--they said: OK, we understand this is not a bad 
amendment, and we don't want to be on record as saying we are against 
it.
  I think the reason both Republicans and Democrats in the Senate urged 
it upon the other body was for them. I think the obvious embarrassment 
by some, not all, but the obvious embarrassment by some who had to vote 
against it on the other side was they wished they had not. They wished 
they could have kept it in. So I would ask my dear friend from 
Virginia--and he is truly my dear friend--what do you think of that 
idea? Let's vote on both of them?
  Mr. WARNER. Mr. President, as the Senator well knows, the 
distinguished leaders on both sides are now looking at that while I am 
engaging in debate with him. We are looking at that proposition.
  I would like to have the opportunity at the earliest convenience to 
state the purpose for which I initiated the substitute amendment. And I 
think it is going to meet the majority of objections the Senator from 
Vermont has with his proposal.
  Mr. LEAHY. Mr. President, certainly, if the distinguished Senator 
from Virginia wishes to speak, I am not going to withhold the floor 
from him. He has accommodated me when I have wanted to speak. I yield 
the floor.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Mr. President, I thank my colleague. I will not try and 
make reference to the consideration of language similar to this 
underlying amendment and what occurred in the appropriations cycle and 
what occurred or didn't occur in the conference. I was not there. I 
don't have the specific knowledge. I am pleased that the distinguished 
Senator from Vermont, when I did discuss with him privately some of the 
earlier statements, has now corrected them. And I accept at face value 
what you have said about what took place in the appropriations cycle.
  But we are now, at this point in time, on this bill, presented with 
this amendment and a second-degree submitted by myself.
  First, the Senator observes that there is a need for legislation to 
impose criminal penalties on persons who commit wrongdoing in 
contracting in the course of our military operations. I concur with 
that very simply. So how best to do it, I think, is as follows.
  My amendment would strike the language of the Leahy amendment and 
substitute language which would make it explicitly extraterritorial, 
which means we can reach out to these companies that are alleged to 
have done wrong and make applicable existing criminal statutes, 
statutes which have been on our books for a long period of time, which 
have been tested in the courts, and we know precisely what the language 
means.
  My amendment would do the following. There are two existing Federal 
criminal statutes. The first is 18 USC 1001 dealing with false 
statements; and, secondly, 18 USC 1031, dealing with major frauds 
against the United States.
  Those are the statutes, the body of law, which Congress put in place 
to deal with problems such as may be occurring in our operations in 
Afghanistan, Iraq, and, as the Senator said in his amendment, any other 
country in which members of the United States Armed Forces are engaged. 
So we have reached out not just to those two countries, Afghanistan and 
Iraq, but we have reached out to accommodate all of those areas. And 
these companies or individuals can be held accountable.
  So the second-degree amendment takes care of the potential problems 
in covering overseas contracting without the problems inherent in the 
Leahy amendment.
  I turn now to the Leahy amendment. This was the primary reason I put 
forward the second-degree amendment because you have added language. 
Frankly, I say with some modesty, I was a lawyer and a criminal 
prosecutor. But if I could draw your attention to section D in which 
you apply all of the penalties of your amendment, D says: Knowingly and 
willfully an individual or a contractor or an entity or corporation 
``materially overvalues any good or service with the specific intent to 
excessively profit from the war, military action, or relief or 
reconstruction activities in Iraq, Afghanistan, or such other country. 
. . .''
  I say to my good friend, I am not sure what the derivation of that 
language is and the extent to which the courts have addressed that 
language in the context of not a civil but a criminal prosecution. So I 
pose that as a question.
  Mr. LEAHY. If I might respond to that, they have. The Senator from 
Virginia asked whether they have done it in a criminal prosecution. No, 
this is not a criminal statute. They have done it in a civil case, and 
there is a huge amount of case law on this in civil cases. The only 
difference is, if the Senator is worried about the rights of 
contractors and others, in a criminal case, of course, you have to 
prove specific intent. In civil cases, you have to prove it with a 
preponderance of the evidence. Here you have to prove it beyond a 
reasonable doubt. But these are words of art: ``overvalues a good or 
service with specific intent to excessively profit from the war, 
military action. . . .'' Those are words of art. They have been 
interpreted by the courts.
  The difference, again, as I said, if you are doing it in a criminal 
case, as the Senator from Virginia well knows, you have to prove it 
beyond a reasonable doubt.
  ``Excessively profit'' is taken from the renegotiation act, which is, 
as I said, a civil act. The constitutionality of that was upheld; I 
believe it was in the Lichter case.
  Mr. WARNER. I thank my colleague. Let me bring to his attention that 
we are quite fortunate as a nation to have literally several thousand 
contractors engaged in supporting the men and women of the Armed Forces 
of the United States in many areas of the world. And now we are about 
to take language which, as the Senator said, perhaps was a basis for a 
civil penalty and subject these thousands of contractors and 
individuals to the following language in your amendment: They ``shall 
be fined under paragraph (2), imprisoned not more than 20 years.''
  I say to my good friend, we were taught in law school the difference 
between civil and criminal law. We were taught the tremendous burden of 
proof and so forth that is associated with depriving one of one's 
freedom and liberty. You are about to subject these contractors to 
that, up to 20 years, using only civil standards. I understand you have 
specific proof in there.
  Mr. LEAHY. It has to be beyond a reasonable doubt. And I have 
prosecuted thousands of cases, tried hundreds of them as a prosecutor. 
I know that is one high hurdle.

[[Page 12439]]


  Mr. WARNER. Mr. President, I can't remember. It has been too long. 
That is one of a senior citizen's benefits. But I spent 5 years as an 
assistant U.S. attorney in the criminal and appellate divisions of the 
courts here in the Nation's Capital. I point out to the Senator, I 
recognize the high bar. I am just saying I think the Congress should 
deliberate very carefully a criminal penalty of up to 20 years for 
these thousands upon thousands of companies that are currently engaged. 
Carefully, first go through a series of hearings, and then floor 
debate, rather than come up here and in a matter of an hour or two of 
time try and make the decision to impose criminal law on an existing 
framework of contractor support at the very time we are engaged in 
combat operations in Iraq, Afghanistan, and, to a lesser extent, in 
other parts of the universe.
  The Senator is asking the Senate to take a very serious step. That is 
why the substitute amendment would incorporate, if adopted, a statute--
basically existing law--and extraterritorial ability to reach the 
company under existing law in title 18.
  Mr. REID. Does the Senator from Vermont have the floor?
  The PRESIDING OFFICER. The Senator from Virginia controls the floor 
and has yielded only for the purpose of allowing an inquiry to be made 
through the Chair.
  Mr. WARNER. If the Democratic whip wishes to address the Senate, I am 
more than happy to allow that.
  Mr. REID. I will wait my turn.
  Mr. LEAHY. Will the Senator yield for a question?
  Mr. WARNER. Absolutely, Mr. President.
  Mr. LEAHY. My question to the distinguished senior Senator from 
Virginia probably reflects my confusion. He was concerned about the 20-
year penalty to which this might subject some of these contractors. 
Obviously, thousands of contractors are not going to be subjected to 
that. It is only going to be the most grievous ones.
  He is proposing, if I am correct, a statute that would subject 
overseas contractors to a 30-year penalty. I thought I was a tough 
prosecutor. The Senator from Virginia complains about my 20-year 
penalty; he is proposing 30 years. I don't mean to get into a bidding 
war on penalties, but if my 20 years is too Draconian, 30 years sounds 
even more so.
  Mr. WARNER. Mr. President, I will reply to that. My criminal penalty 
is under existing statutes, which were carefully debated by the 
Congress and have been on the lawbooks for a number of years. I will 
soon address the Senate as to how long these statutes have been in 
place. That is the basic difference.
  My statutes don't have in it ``materially overvalues any good or 
service.'' I say to my good friend, that is too vague on which to send 
someone, as we used to say, as an old prosecutor, ``up the river.'' I 
don't care whether it is 20 or 30 years. I don't know how the burden of 
proof of ``materially overvalues'' is reached. You are asking for a 
criminal penalty predicated on that phrase.
  Mr. LEAHY. Mr. President, if I may respond without the Senator losing 
his right to the floor, he is relying on a statute--if I recall, 
without hearings; there was an amendment to the Sarbanes-Oxley bill a 
couple years ago on the floor. If we are talking about criminal 
statutes and changing them by whim, that is one that said no more 
debate on this. I am bringing up something that was debated rather 
thoroughly in the Appropriations Committee, including a bill the 
Senator from Virginia and I voted for last year.
  Mr. WARNER. Mr. President, I wonder if the Senator could point to the 
Record in which the Senate--in the course of the deliberation on the 
Appropriations bill in which his amendment is included--debated that.
  The PRESIDING OFFICER. Without objection, the Senator from Vermont is 
yielded to for the purpose of answering a question.
  Mr. LEAHY. It was debated, of course, in committee. It was well noted 
here before all Senators. Nobody, either Republican or Democrat, made 
the normal motion to strike that was done when you have a part to which 
you object. The Senator from Virginia is right that this is slightly 
different. That one was just for Iraq. This includes Afghanistan and 
elsewhere and does not contain a sunset provision.
  I must admit that we are somewhat inclined to do that, especially 
after hearing of these e-mails that have just been made public. We are 
not talking about somebody who shows up and provides five dozen 
baseball caps to one of our military groups somewhere around the world. 
We are talking about people getting a billion dollars, with no-bid, no-
competition contracts. I think we ought to at least be able to look at 
them and make sure they are spending our money correctly.
  The PRESIDING OFFICER. The Senator from Virginia is recognized.
  Mr. WARNER. Mr. President, my colleague has challenged me on the 
underlying statute that I include in my amendment. I draw his attention 
to the title 18, section 1001. That statute was put on in 1948.
  Now, the second statute I utilize is 1031, which was adopted in 1988. 
So the first was in 1948; the next was in 1988.
  I question my friend, who challenged me that they were just adopted, 
it seems to me that both of these Federal laws have been on the books 
for a sufficient time to have been examined by the courts and others.
  Mr. LEAHY. Mr. President, I am confused by the response. Is the 
Senator saying that section 1001 of title 18 was not amended by the 
Sarbanes-Oxley Act about a year and a half ago?
  Mr. WARNER. It might have been amended.
  Mr. LEAHY. Whatever it was----
  Mr. WARNER. On October 11, 1996, there was one amendment.
  Mr. LEAHY. It was not increased back in--if the Senator tells me the 
Sarbanes-Oxley Act was not amended on section 1001 at all, I will 
accept that.
  Mr. WARNER. I am reading from the Federal Criminal Code, 2004 
edition. I imagine it supersedes the 2003 edition.
  The point is that the statute, 1001, originated on June 25, 1948. 
This shows the last amendment to be October 11, 1996. Very clearly, I 
think my good friend has to acknowledge that this is proof that the two 
statutes upon which I rely have clearly been on the books for a 
considerable period of time and have been presumably tested in the 
courts and otherwise. That is the basic difference.
  I can find no reference in the Criminal Code to the use of the 
language that my good friend uses here, ``materially overvalues.'' I 
think that is too vague a standard upon which to send anybody up the 
river. I don't care whether it is 20 or 30 years, or whatever period of 
time.
  Mr. LEAHY. Mr. President, is it the position of my friend from 
Virginia that the kinds of things we have heard about--and he sees it 
more than I do as chairman of the Armed Services Committee--about the 
hundreds of millions of dollars being overcharged in meals, and 
hundreds of millions of dollars being overcharged on vehicles, housing, 
and construction. Any of those would be covered by his statute.
  Mr. WARNER. That is a legitimate question. I answer in the 
affirmative, that the anecdotal types of things we have discussed on 
the floor would be covered by the existing criminal statutes, provided 
they found the requisite level of ``beyond a reasonable doubt.''
  I challenge my friend, I cannot find any criminal law that employs 
this type of verbiage that he seeks here. There is reference in civil 
statutes to that type of language, but the Senator from Vermont is now 
asking that these words become a part of the criminal statute.
  I think what is going to happen, if your amendment will be adopted, 
is that this infrastructure of tens of thousands of individuals and 
companies out there right now is going to say: We are out of this; we 
are not going to subject our people, we are not going to subject our 
business to the risk of this type of prosecution under these vague 
standards of ``materially overvalues any good or service.''
  Mr. LEAHY. Mr. President, if I might, obviously the statutes on the 
books have not stopped them from

[[Page 12440]]

overcharging, have not stopped them from the kinds of things we have 
seen.
  Nobody wants to use the word ``Halliburton'' around here, but we 
constantly pick up the paper and read about a number of these 
companies. They are obviously overcharging, and nothing is happening to 
them. I am just one frustrated American who wants them to stop.
  Mr. WARNER. I have a very quick and simple answer to the Senator's 
question. Adoption of the amendment by the Senator from Virginia would 
be the first time the jurisdiction of these two titles is extended 
beyond the shores. Criminal convictions could be brought against 
defendants, if my amendment is adopted.
  Mr. LEAHY. Mr. President, will the Senator yield for another 
question?
  Mr. WARNER. Yes.
  Mr. LEAHY. Let me ask the Senator from Virginia this: Suppose we have 
an item, and one of these contractors about which we are talking 
charges $2,000 for an item. It cost him $5. We remember back to the 
days of the $500 hammer. He charges the Government $2,000 for an item 
that costs $5, but he does not lie about this. He does not conceal the 
cost. He simply says: Here is my bill.
  He says: OK, it is $2,000. He paid $5. He does not conceal that cost. 
He does not lie. He just says: Here is the bill for $2,000. He has not 
lied. He did not conceal--the bill is not hidden somewhere else. It is 
a straight-out bill, but he is obviously gouging the Government, 
charging $2,000 for a $5 item. Does the Senator's statute cover that 
situation?
  Mr. WARNER. Section 1031 of title 18, ``Major fraud against the 
United States'':

       Whoever knowingly executes, or attempts to execute, any 
     scheme or artifice with the intent to defraud the United 
     States--

  That is fairly broad.
  Mr. LEAHY. That is not a scheme. He said: I just delivered this 
widget. Here is your bill for $2,000. And there are so many other 
things going on, the Government says: Here is your 2,000 bucks. It is 
not a scheme. It is not an artifice. He is not hiding the fact at all. 
He said: Here is your bill for $2,000 and somewhere gets paid in the 
bureaucracy. He has obviously gouged. He has not lied about it. He is 
up front about it. Does the Senator's statute cover that because that 
happens a lot?
  Mr. WARNER. Mr. President, this framework of laws embraces enough 
provisions that they could establish a case of fraud using the example 
the Senator from Vermont stated because the contract will have 
provisions in it with regard to the amount of profit, and there would 
have to be some reasonable examination of that. The contract is not 
going to be silent on that issue.
  Mr. LEAHY. Mr. President, is the Senator from Virginia saying, then, 
it would require fraud?
  Mr. WARNER. I am reading the statute. That is what it says here:

       Whoever knowingly executes, or attempts to execute, any 
     scheme or artifice with the intent to defraud the United 
     States--

  And the contract is going to set the profit margins.
  Mr. LEAHY. We are getting a lot of no-bid contracts with basically 
the company, as we found in these e-mails, saying: Here is what it is 
going to be.
  There are no bids. There is nothing else. The Government says: OK, go 
forward. But there is no question there has been war profiteering 
there. There has been no fraud, no artifice, nothing else. He just sent 
the bill, and the bill gets paid. It is profiteering, but I do not see 
where your statute covers that situation.
  Mr. WARNER. Would that be in the nature of some sort of trick they 
were trying to perform?
  Mr. LEAHY. Mr. President, if I may respond, they realize there are 
not going to be bids on this contract. They realize it is going to be 
OK'd as soon as they send it in. They have not done any tricks at all. 
They just say: Here is our bill. There is nobody else bidding, and it 
gets passed.
  Some may say that may be fraud; that may not be. Mine does not say 
maybe. It just says to do it is a crime.
  Mr. WARNER. Let's look at section 1001:

       Except as otherwise provided in this section, whoever, in 
     any matter within the jurisdiction--

  So forth--

     knowingly and willfully--
       (1) falsifies, conceals, or covers up by any trick, scheme, 
     or device a material fact;
       (2) makes any materially false, fictitious, or fraudulent 
     statement, or representation; or
       (3) makes or uses any false writing or document knowing the 
     same to contain--

  I say to my good friend, these statutes cover most of the situations, 
if not all, in which there could be a wrong perpetrated, a wrong of the 
type you say is profiteering.
  To bring this to a conclusion, the very fact that the two of us have 
had some experience and cannot reconcile differences on the meaning of 
the language of the Senator from Vermont brings home the fact we should 
not be asking our colleagues to make that the law of the land on a vote 
this afternoon after this short debate. The Senator is bringing a 
brandnew dimension into the Criminal Code.
  Mr. LEAHY. Mr. President, if I might respond to that, it is not a 
brandnew dimension. It is basically what we had in the Appropriations 
bill last year.
  Secondly, it is completely appropriate to apply this new law to Iraq 
when we see these huge cost overruns on no-bid contracts, and nobody 
seems to be held accountable. Defense offered by lawyers for the 
contractor might be that there are no false statements and, therefore, 
no crime, even though one is ripping off the taxpayers.
  It is similar to the guy who comes in and says: I will sell you this 
hammer for $2,000. He is not claiming it is a $2,000 hammer. He is not 
claiming he paid more than $5 for it. He says: I will sell it for 
$2,000. Has he made excess profit? Of course, he has. But when it comes 
to the point when our men and women are putting their lives on the line 
while others sit back in the boardrooms in America, I think every 
single lawyer in these boardrooms is going to know exactly what this 
amendment does, and it will be a strong deterrent.
  Mr. President, as the White House proved last year when this 
amendment was debated during the Iraq supplemental conference, I am 
sure the Senator can pull up the votes to defeat me. I think it is a 
mistake. Frankly, I will keep on trying to bring up commonsense 
amendments to prevent war profiteering. Maybe sooner or later some of 
these people in the same boardrooms who are involved, who are getting 
no-bid contracts, may think: Maybe we better slow up because maybe one 
day the Senate will actually say we are going to hold you accountable 
if you engage in this sort of activity.
  The PRESIDING OFFICER. The Senator from Virginia controls the floor.
  Mr. WARNER. I think we are at the point, unless there are other 
colleagues who desire to discuss this--does the Senator from Alabama 
wish to speak?
  Mr. SESSIONS. I will just make a few brief comments, if that is 
appropriate.
  Mr. WARNER. Yes.
  The PRESIDING OFFICER. Does the Senator from Virginia yield for a 
question from the Senator from Nevada?
  Mr. WARNER. Yes, of course, Mr. President.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. I was wondering if the Senator from Virginia had yielded 
the floor, but he has not.
  Mr. WARNER. I was hoping I could yield to the Senator from Alabama 
for a question or observation.
  Mr. SESSIONS. Well, I want to make a comment or two unless the debate 
is basically finished, in which case I have an amendment that will 
hopefully come up a little later that covers some of these same issues. 
I have some observations that I would like to share about this 
particular amendment. I would not be able to support it, and I wish to 
explain why, but if the Senator is ready to move along, I am willing to 
yield the floor and move along.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, we are trying to complete this Defense bill. 
The Senator from Vermont has made his case. The Senator from Virginia 
has made his case. The record should be spread with the fact that 
Senator

[[Page 12441]]

Leahy is going to get a vote on his amendment before we finish this 
bill, and I would hope we could move on. As far as I am concerned, the 
issue is very clearly defined. I have heard people ask all during the 
day, What is happening with this bill? Why can we not move it more 
quickly?
  The Senator from Michigan, the manager of this bill on the side of 
the minority, and I have worked very hard the last 24 hours to try to 
clear amendments, and on our side there are a definite number of 
amendments. As I understand it, this is our 11th day on this bill. We 
have spent weeks on these bills in the past. We know the importance of 
the Senate agenda. There are so many other things to do. We have just 
wasted a tremendous amount of time, obviously for the reasons the 
majority does not want to vote on Senator Leahy's amendment. So I would 
certainly hope that everyone understands that anything that is being 
slowed down on this bill is not because of us.
  There are a number of issues we need to debate on a Defense bill. 
Certainly, we should have an amendment that deals with end strength; 
that is, what should be the troop levels. The person who is offering 
that amendment is a graduate from West Point, a retired major from the 
Army. Certainly, Senator Jack Reed of Rhode Island is qualified to 
offer that amendment. We should do that. We should get to that.
  Another issue that we need to debate is the missile defense system. 
Some feel very strongly that it is an important program on which we 
should spend lots of money. Others believe we are spending too much 
money on it. That is an issue that should be debated.
  The distinguished senior Senator from Delaware wishes to offer an 
amendment to cut some of the higher tax cuts that were given and have 
those moneys spent on Iraq.
  We have a number of important issues. There are a number of issues 
that may not seem important in the overall scheme of things, but to the 
individual Senators they are extremely important.
  I repeat, I want everyone to understand we are doing everything we 
can to move this bill along. In the last several days, we have heard 
threats of filing cloture because we are slowing the bill down. We are 
not slowing the bill down. Nothing can be guaranteed around here, but I 
would certainly suggest if there is a cloture motion filed on this 
bill, I do not think the majority is going to get cloture on this bill. 
We want the opportunity to offer a few amendments.
  Now, we all understand that President Reagan died. There is never a 
good time for someone to pass away. We all felt so strongly about 
President Reagan, and we joined in the celebration of his life last 
week. But we should not be punished on this bill because of that. So I 
would hope that we could move this bill along.
  As everyone knows, tonight we are not going to be able to go very 
late. We can finish this bill, but we are not going to finish the bill 
tomorrow. We cannot finish the bill tomorrow.
  I have said on this floor so many times--but when something is good, 
it has to be repeated--there are no two finer people in the Senate than 
the distinguished senior Senator from Virginia and the distinguished 
senior Senator from Michigan, the two managers of this bill. But we 
have to move on.
  Through the Chair, I say to my friend, the chairman of this most 
important committee, we are not trying to slow this bill down. We have 
done what we can to move it forward, but I have stated there are some 
issues that we must address. We are going to continue to work. I have 
talked to the Democratic leader on many occasions. He is, of course, 
always aware of what is going on on the floor. He wants this bill 
completed as much as the rest of us. So I would hope that we could get 
a vote on the amendment of Senator Leahy as rapidly as possible and 
move on.
  I do not know if this is true, but I have been told the majority 
wants to vote on some judges tonight. That is also going to take some 
time.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Mr. President, in reply to the distinguished Democratic 
whip, I certainly commend him. I would say to him that practically as 
long as I have been in the Senate he has been on the floor for the 
Senate authorization bill all these many years and has been a 
tremendous help to us, and he continues at this moment. I assure him we 
are working on a UC which I hope will accommodate the distinguished 
Senator from Vermont and his requirements. So I am simply asking for a 
few minutes on which this matter may be presented to the Senator, 
unless someone wishes to speak.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. I wonder if my friend from Virginia would yield for a 
question relative to his amendment?
  Mr. WARNER. Yes, of course.
  Mr. LEVIN. I listened to most of the debate--I had to leave for a 
moment.
  Mr. WARNER. Yes.
  Mr. LEVIN. I understand the position, or the statements of the 
Senator from Virginia. Much of his opposition to the language of the 
Senator from Vermont is that it is in the form of a criminal statute.
  Mr. WARNER. Well, not exactly. We will just have a colloquy. Mine is 
likewise a criminal statute.
  Mr. LEVIN. I understand that.
  Mr. WARNER. They are both criminal, except mine uses the underlying 
statutes and legislation adopted into law after the normal process 
through the Senate.
  Mr. LEVIN. I do understand that. There is no reason both of these 
amendments should not be adopted. They are perfectly consistent with 
each other.
  Mr. WARNER. Oh, no, I cannot buy off on that. There is one portion of 
the amendment of the Senator from Vermont which is a brandnew concept 
being introduced of standards for criminality, and I cannot accept 
that.
  Mr. LEVIN. That is my question to my friend from Virginia. My 
question is, Is the objection to his language that it is a criminal 
statute--if this, for instance, simply restored the civil penalty for 
this material overvaluation of a good and service, would the Senator 
from Virginia still object to it?
  Mr. WARNER. Well, I would have to look at it. At this late hour, with 
votes momentarily to occur, I would not want to conjecture. My 
predicate is that criminal penalties deserve the most exhaustive 
consideration by the legislature, be it State or Federal. This new 
standard that my colleague from Vermont has raised has a legislative as 
well as a judicial history in civil penalties. It does not have a 
comparable record in any Federal system.
  Mr. LEVIN. Which is the reason--if I can be recognized?
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEVIN. The reason I sought the floor to ask the Senator from 
Virginia the question is because the argument he makes seems to be 
based on a premise that there is a civil penalty history to this 
language but not a criminal penalty history. It would seem to me that 
would be greater protection for any potential defendant or contractor 
because there is a higher standard of proof.
  But putting all that aside, my question is, then, would there be any 
objection to simply restoring the civil penalty for that violation, 
material overvaluation of any good or service? Since the Senator says 
there is a history in terms of civil penalties for that activity, then 
I was very curious to find out whether he might object if we simply 
restore the civil penalty for that violation.
  Mr. WARNER. Mr. President, it is a situation I would want to examine 
with great care and see how it is phrased. I think right now we have 
two very distinct pieces of legislation before this body. This is 
legislation proposed by the Senator from Virginia which is predicated 
on statutes that have been in existence for a number of years--one, 
1948 is the origin; the second is 1988. We simply extend the 
jurisdictional reach of those statutes to areas in which these 
contractors are performing beyond the continental boundaries. It is a 
very clear way of bringing to justice those operating beyond our

[[Page 12442]]

shores. To me, that does it. I am firmly opposed to the introduction 
into the criminal statutes a standard of criminality which I feel is 
far too vague to support the extreme of deprivation of life, liberty, 
and freedom--not life, perhaps, but liberty and freedom.
  Mr. LEVIN. If I could reclaim the floor, what the amendment of the 
Senator provides, and I have no objection to it although I don't 
believe it adds much to existing law--I don't have any objection to the 
Senator's amendment making clear there is this extraterritorial 
jurisdiction. That is fine. But what it leaves out is the language 
previously in the law providing for a civil penalty for material 
overvaluation of a good or service. What it says is ``with the specific 
intent to excessively profit.'' That is a specific intent which is 
appropriate, I believe, either to civil or criminal law. From my 
perspective, this can be either civil or criminal. But the key point is 
that the amendment of the Senator does not include that subsection 
1(d), which, it seems to me, is essential if we are going to get to 
that profiteering issue which the amendment of the Senator from Vermont 
gets to.
  But I would be interested, if the amendment of the Senator from 
Vermont is defeated, and I hope it is not, as to whether then the 
Senator from Virginia might accept a civil penalty for this exact same 
language which was previously a civil penalty.
  The PRESIDING OFFICER. Without objection, the Senator from Virginia 
is recognized to answer the question.
  Mr. LEVIN. And I yield the floor.
  Mr. WARNER. In reply, I think you framed the question very clearly. 
My response I hope is equally clear. I could not make a proffer as to 
what I might do until I have looked at it. I want to know how this 
particular language is employed in those civil penalty provisions. It 
may have added words in it. I haven't read any of those clauses, so I 
would have to wait. But you have accurately stated there is a very 
significant difference between the legislation proposed by the Senator 
from Virginia and the legislation proposed by the Senator from Vermont.
  I think at this point we are about ready to receive the unanimous 
consent proposal; am I not correct?
  Mr. REID. Close.
  Mr. WARNER. I have been informed by the distinguished Democratic whip 
that we are close, in which case I suggest the absence of a quorum, at 
which time we can all draw a breath.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. WARNER. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Cornyn). Without objection, it is so 
ordered.


                           Order of Procedure

  Mr. WARNER. Mr. President, the leadership has been working with the 
managers and has worked out a unanimous consent request which I would 
like to propound to the Senate at this time.
  I ask unanimous consent that at the hour of 4:30 today, the Senate 
proceed to a vote in relation to the Warner amendment No. 3452, which 
is to be modified to be in the form of a first-degree amendment, to be 
followed by a vote in relation to the Leahy amendment No. 3292, with no 
amendments in order to the amendments prior to the votes; I further ask 
consent that following those votes, the Senate proceed to executive 
session and immediate votes on the confirmation of the following: 
Executive Calendar No. 567, William Duffey; No. 590, Lawrence Stengel; 
No. 607, Paul Diamond.
  I further ask consent that following those votes, the President be 
immediately notified of the Senate's action and the Senate resume 
legislative session.
  I finally ask consent that following those votes Senator Sessions be 
recognized in order to offer his amendment No. 3372, which is to be 
further modified with changes that are at the desk; provided further 
that following 10 minutes of debate equally divided in the usual form, 
the amendment be agreed to.
  Mr. REID. Reserving the right to object, I would ask the 
distinguished Senator to modify the request to allow 2 minutes prior to 
the votes on Mr. Duffey, Mr. Stengel, and Mr. Diamond.
  Mr. WARNER. So modified.
  Mr. REID. I would also ask the distinguished chairman of the 
committee, we understood there would be an up-or-down vote on the 
second-degree amendment offered by the chairman and also an up-or-down 
vote on the amendment offered by the Senator from Vermont.
  Mr. WARNER. My understanding is, that is correct.
  Mr. REID. I have no objection.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WARNER. I thank the Chair.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. WARNER. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WARNER. Mr. President, the managers of the bill are grateful to 
the leadership for the cooperation we are getting in moving this bill 
along, as well as all Members. We have had a preliminary meeting with 
regard to tomorrow's schedule. I would like to acquaint the Senate with 
the thinking at the moment with the leadership.
  We would start off the morning with no morning business, proceeding 
promptly to the bill at the hour of 9:30, with the first amendment to 
be brought up on our side, the Bond-Harkin amendment. Am I correct on 
that?
  Mr. LEVIN. That is my understanding.
  Mr. WARNER. We will try to establish time agreements during the 
course of the votes today. That is to be followed by the Reed amendment 
which goes to end strength, a very significant issue. That amendment 
currently has an amendment in the second degree, not an amendment which 
is a substitute but just an amendment. That is under consideration and 
will be debated at that time and then, in all probability, a voice 
vote, not on that, a voice vote on the first one I hope, but on the 
second there would likely be a rollcall.
  Mr. REID. Will the Senator yield?
  Mr. WARNER. Yes.
  Mr. REID. In our conversation on the floor, we talked about what we 
wanted to do. We did talk about Bond-Harkin, Reed end strength. I ask 
the two distinguished managers of the bill, because of the difficult 
schedule that the ranking member of the Foreign Relations Committee and 
the minority leader have on Friday, if we could have one amendment that 
the Senator from South Dakota is going to offer dealing with health. He 
would take a very short time agreement on that. And the Senator from 
Delaware wishes to offer an important amendment dealing with taxes, and 
he will take a relatively short period of time. He has to decide that. 
But we are talking about this before we get to missile defense. They 
say they would certainly like to get that done because, as you know, 
their schedules are extremely difficult in the next day or two.
  Mr. WARNER. That is a new dimension which I have not had the 
opportunity to review.
  Mr. REID. At least we got it down a little ways.
  Mr. WARNER. We will take that into consideration. I cannot commit at 
this point in time, but I do know there is an amendment by the 
distinguished Senator from Delaware regarding taxation.
  Mr. REID. That is the one.
  Mr. WARNER. I see.
  Mr. LEVIN. After Daschle.
  Mr. REID. And Senator Daschle would take a very short time agreement. 
We have not had the opportunity to fully vet this with Senator Biden 
other than he wanted to get up early because of his schedule on Friday, 
but we will discuss this with them.
  Mr. WARNER. I defer to my colleague here with regard to the very 
important amendments on missile defense.
  Mr. LEVIN. Before I make reference to the missile defense amendments, 
which it is our hope that we would be

[[Page 12443]]

able to take up and dispose of tomorrow, the reference that the 
chairman made to the end strength amendment, I understand the Senator 
from Rhode Island, his end strength amendment at the moment could lead 
to a second-degree amendment.
  Mr. WARNER. It is at the desk.
  Mr. LEVIN. But there is still an effort being made, as I understand 
it, to see if there can't be a resolution to that.
  Mr. WARNER. Fine. Mr. President, the Senator from Rhode Island 
approached the Senator from Virginia earlier today, and he said he 
would provide some language. Thus far, we haven't had that opportunity.
  Mr. LEVIN. We are also hoping to dispose of either three or four 
amendments tomorrow relative to missile defense. We would like to talk 
to the Senators involved in that during these votes. But I believe the 
logical order here is that the Boxer amendment be first and then Reed, 
either one or two amendments on missile defense after the Boxer 
amendment, and then I would have an amendment after the Reed 
amendments. That is the current informal intention. We would talk to 
those Senators to see if they agree that that is the logical order, try 
to get time agreements on all of these amendments.
  Mr. WARNER. Mr. President, to conclude this brief colloquy, I am not 
able to speak to the Daschle amendment or the Biden tax measure. I will 
have to engage people on the tax committee to look at that. The others, 
I would say, as chairman and I hope you as ranking, if we are able to 
get through the agenda we have outlined, this bill is really down in 
its final stages; would you not agree?
  Mr. LEVIN. Well, there are a lot of outstanding amendments.
  Mr. REID. If the distinguished chairman will yield, Senator Daschle 
would be happy to wait until Monday with a very short time agreement. 
But we do have some other amendments on this bill.
  Every year, as you know, there are a few abortion amendments. They 
don't take a lot of time because we have debated a number of them on 
previous occasions. We have a number of other issues. But as we talked 
about earlier today, if we do end strength and missile defense, we get 
Senator Biden's amendment out of the way, the others should go fairly 
quickly.
  Mr. LEVIN. If the Senator will yield, in fairness to our colleagues, 
we do have listed a number of amendments from a number of colleagues 
who expect--and I think reasonably so--their amendments would be 
addressed before this bill goes to final passage. I wouldn't want to 
give an assessment that we are near the end because there are many 
Senators. We are, by the way, successfully reducing the number of 
amendments. We want to give credit to Senator Reid as always for his 
Herculean efforts in this regard. We have, under his leadership on our 
side, been able to successfully reduce the number of outstanding 
amendments, but there are still many left.
  Mr. WARNER. I would say in response to that, we have likewise 
successfully reduced and I think have only one left on our side 
compared to what you may have before you.
  Mr. REID. If the Senator will yield.
  Mr. WARNER. Yes.
  Mr. REID. I don't usually deal in the minutia of things, rather 
broader issues. But I just wanted to say something to the distinguished 
Democratic leader of this important committee, I do believe we are near 
the end. I say that because we have been on this bill 11 days. If we 
spend a few more days on it, we are near the end.
  Mr. LEVIN. If we spend a couple more days, yes, we are near the end.
  Mr. WARNER. Wait a minute, let's just leave it ``we are near the 
end.''
  Mr. LEVIN. I subscribe to my leader's comment.
  Mr. WARNER. I thank the distinguished Democratic whip and my 
colleague from Michigan. The unanimous consent agreement is in order. 
The vote should start momentarily.
  The PRESIDING OFFICER. The Senator from Missouri is recognized.
  Mr. BOND. Mr. President, I ask the distinguished manager, I 
understand that the measure that Senators Harkin, Talent, Grassley, and 
I have proposed is in order for 9:30 tomorrow morning.
  Mr. WARNER. Yes. Could the Senator, in the interim, talk to his 
cosponsors on both sides of the aisle and give me an estimate of the 
time that would be required?
  Mr. BOND. We hope it will be brief. We will talk with you. We hope 
that perhaps it may be accepted.
  Mr. WARNER. Without a rollcall vote.
  Mr. BOND. I would like to spare the body a rollcall vote.
  The PRESIDING OFFICER. Under the previous order, amendment No. 3452 
is modified to be a first-degree amendment.
  Mr. WARNER. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The question is on agreeing to the amendment.
  The assistant legislative clerk called the roll.
  Mr. REID. I announce that the Senator from North Carolina (Mr. 
Edwards), the Senator from Florida (Mr. Graham), and the Senator from 
Massachusetts (Mr. Kerry) are necessarily absent.
  The PRESIDING OFFICER (Ms. Collins). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 97, nays 0, as follows:

                      [Rollcall Vote No. 119 Leg.]

                                YEAS--97

     Akaka
     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Cantwell
     Carper
     Chafee
     Chambliss
     Clinton
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Corzine
     Craig
     Crapo
     Daschle
     Dayton
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Durbin
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hollings
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Mikulski
     Miller
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Nickles
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner
     Wyden

                             NOT VOTING--3

     Edwards
     Graham (FL)
     Kerry
  The amendment (No. 3452) was agreed to.
  Mr. WARNER. Madam President, I move to reconsider the vote.
  Mr. LEVIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. LEAHY. I asked unanimous consent--I have discussed this with the 
senior Senator from Virginia--that we have 2 minutes equally divided on 
the next amendment.
  Mr. WARNER. Two minutes on each side.
  Mr. LEAHY. Two minutes is fine with me.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Vermont.
  Mr. LEAHY. Madam President, I do not want to start until the Senate 
is in order.
  The PRESIDING OFFICER. The Senate will be in order.
  The Senator from Vermont.
  Mr. LEAHY. Madam President, I voted, as did others, for the Warner 
amendment even though I see it as only the tiniest step toward 
addressing what we read about in the paper every single day, and that 
is war profiteering in Iraq. His amendment does not cover war 
profiteering; mine does. In fact, his, I believe, removes my 
prohibition against war profiteering. What I have in here is an 
amendment, very similar to what we passed in the appropriations bill 
earlier, about real war profiteering.
  This Monday I was at the funeral in Vermont of a young sergeant who 
was

[[Page 12444]]

killed in Iraq, just as my wife and I have been at other funerals of 
Vermonters killed over there, and I suspect most Members of the Senate 
have. They are over there defending their country. They are over there 
doing what their country asked them to, being paid as corporals and 
sergeants, and dying.
  We have a lot of other people sitting in boardrooms back here in 
America, watching enormous profits, watching the American taxpayers pay 
for things that are never delivered, for trucks that are never there, 
for meals that are never there, and we can't stop them. My amendment 
would stop them. My amendment would put, if not patriotism in them, it 
will put the fear of going to jail in them.
  Let us stand up for our American men and women over there. Let us 
stop the war profiteers. Let us say no to them, and let us say, if you 
continue, you are going to go to jail because that is where you belong.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Madam President, my amendment does everything that my 
colleague stated as a desired goal. His amendment goes a step further. 
This is the reason we have two votes. He establishes a new criterion 
for a crime that could result in incarceration up to 20 years. It is so 
vague that I assure you it could not get through the first year of law 
school. It says you could go to jail if ``you materially overvalue any 
good or service.'' There is no regulation, no criterion by which to 
judge that. As a consequence, this body would be enacting a new 
criminal statute without any hearings, without any thoughtful process, 
and would subject the contracting community, which numbers in the tens 
of thousands of individuals supporting the men and women of the Armed 
Forces all over the world, to this very vague proposed criminal 
statute.
  I urge strongly that you vote against the Leahy amendment.
  I regret that, I say to my good friend, but we cannot put on our 
books this statute. It would be wrong.
  Mr. LEAHY. Madam President, my amendment very simply says to the 
Halliburtons all over the country that you can't profit on the backs of 
our men and women in Iraq or Afghanistan. We all know that is what it 
is.
  The PRESIDING OFFICER. The Senator's time has expired.
  Does the Senator from Virginia yield his remaining 35 seconds?
  Mr. WARNER. Yes, Madam President. I yield it knowing that the good 
wisdom and sound judgment of this body will follow my views.
  Mr. LEAHY. Madam President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is on agreeing to the amendment.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. REID. I announce that the Senator from North Carolina (Mr. 
Edwards) and the Senator from Massachusetts (Mr. Kerry) are necessarily 
absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 46, nays 52, as follows:

                      [Rollcall Vote No. 120 Leg.]

                                YEAS--46

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Byrd
     Cantwell
     Carper
     Clinton
     Conrad
     Corzine
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Graham (FL)
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Murray
     Nelson (FL)
     Nelson (NE)
     Pryor
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Stabenow
     Wyden

                                NAYS--52

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Campbell
     Chafee
     Chambliss
     Cochran
     Coleman
     Collins
     Cornyn
     Craig
     Crapo
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Kyl
     Lott
     Lugar
     McCain
     McConnell
     Miller
     Murkowski
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner

                             NOT VOTING--2

     Edwards
     Kerry
       
  The amendment (No. 3292) was rejected.
  Mr. WARNER. I move to reconsider the vote.
  Mr. HATCH. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. LEAHY. Mr. President, this afternoon, while debating my amendment 
on war profiteering, we became mired in a debate about what is or what 
is not in the criminal code.
  I will not revisit that issue now. However, I will say to the senior 
Senator from Virginia, who asked from where the language in my 
amendment originated in the criminal code, that I have more information 
on that issue that should be to his satisfaction.
  First, the term ``material'' appears in terrorism laws prohibiting 
``material'' support. In fact, all falsity in the criminal code must 
``material''. Pursuant to a Supreme Court ruling, part of proving a 
false statement must be ``material.''
  Second, the term ``overvaluation'' is in Title 15 prohibiting 
``criminally overvaluation'' of securities.
  Third, with respect to ``intent to excessively profit,'' this is 
taken, in part, from ``significantly profit'' in 12 U.S.C. 1297 which 
criminalizes bank crimes. ``Significantly profit'' is, in fact, a lower 
standard that ``excessively profit.'' We erred on the side of caution 
and raised the standard.
  Although I made this point clear during the debate, this should leave 
no doubt that my amendment is carefully constructed legislation.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Madam President, my understanding is we will now go off 
the bill. We will remain off the bill for the remainder of the evening. 
We now have three votes on judicial nominations. I stand corrected. 
After the votes on the three judicial nominations, there is a short 
matter with Senator Sessions. It is in the UC.
  Madam President, I ask unanimous consent that the votes for the three 
judicial nominations be 10-minute votes.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.

                          ____________________