Congressional Record: July 26, 2002 (House)
Page H5845-H5888
HOMELAND SECURITY ACT OF 2002
The Committee resumed its sitting.
The CHAIRMAN pro tempore. It is now in order to consider amendment
No. 24 printed in House Report 107-615.
{time} 1700
Amendment No. 24 Offered by Ms. Schakowsky
Ms. SCHAKOWSKY. Mr. Chairman, I offer an amendment.
The CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment No. 24 offered by Ms. Schakowsky
Strike subtitle C of title VII.
Strike section 762 and insert the following:
SEC. 762. REMEDIES FOR RETALIATION AGAINST WHISTLEBLOWERS.
Section 7211 of title 5, United States Code, is amended--
(1) by inserting "(a)" before "The right"; and
(2) by adding at the end the following:
"(b) Any employee aggrieved by a violation of subsection
(a) may bring a civil action in the appropriate United States
district court, within 3 years after the date on which such
violation occurs, against any agency, organization, or other
person responsible for the violation, for lost wages and
benefits, reinstatement, costs and attorney fees,
compensatory damages, and equitable, injunctive, or any other
relief that the court considers appropriate. Any such action
shall, upon request of the party bringing the action, be
tried by the court with a jury.
"(c) The same legal burdens of proof in proceedings under
subsection (b) shall apply as under sections 1214(b)(4)(B)
and 1221(e) in the case of an alleged prohibited personnel
practice described in section 2302(b)(8).
"(d) For purposes of this section, the term `employee'
means an employee (as defined by section 2105) and any
individual performing services under a personal services
contract with the Government (including as an employee of an
organization).".
The CHAIRMAN pro tempore (Mr. Sweeney). Pursuant to House Resolution
502, the gentlewoman from Illinois (Ms. Schakowsky) and a Member
opposed each will control 15 minutes.
The Chair recognizes the gentlewoman from Illinois.
[[Page H5846]]
Ms. SCHAKOWSKY. Mr. Chairman, I yield myself such time as I may
consume.
Mr. Chairman, on behalf of the gentlewoman from Hawaii (Mrs. Mink)
and the gentleman from Ohio (Mr. Kucinich) I rise to offer an amendment
that will prevent the Department of Homeland Security from becoming the
"department of homeland secrecy." I want to commend the gentleman
from California (Mr. Waxman) and his staff, as well as the Select
Committee, particularly its ranking member, the gentlewoman from
California (Ms. Pelosi).
First, this amendment strikes subtitle C of section VII of the
underlying bill, language that excludes from the Freedom of Information
Act information submitted voluntarily from corporations regarding
critical infrastructure information. It strikes language that preempts
all State and local open records laws.
Second, this amendment strikes section 762, language that allows the
Secretary to circumvent the Federal Advisory Committee Act, FACA, by
putting all the deliberations of those advisory committees beyond
public reach.
Third, this amendment provides real teeth to protections against
retaliation for whistleblowers, the kind of individuals who have been
the lifeblood of exposing failures at the FBI to heed warnings of
terrorists within the country, and exposing corporate misconduct.
The Freedom of Information Act is a law carefully crafted to balance
the ability of our citizens to access information and the interests of
those who want to protect such information from public scrutiny. There
are nine exemptions to FOIA, including national security information
and business information. FOIA currently protects information that is a
trade secret or information that is commercial and privileged or
confidential. In addition, President Reagan issued Executive Order
12600 that gives businesses even more opportunities to oppose
disclosure of information.
In fact, I and other Members of the Committee on Government Reform
repeatedly have asked proponents of this exclusion, including the FBI
and Department of Commerce, for even one single example of when a
Federal agency has disclosed voluntarily submitted data against the
express wishes of the industry that submitted that information. They
could not name one case.
Instead, we are told that FOIA rules just are not conducive to
disclosure, that corporations are not comfortable releasing data needed
to protect our country, even if we are at war.
Is our new standard for deciding such fundamental questions of
openness and accountability in our democracy how comfortable industry
will be? Environmental groups, open government groups and press
organizations support my amendment because the broad secrecy provisions
of the new Department would hide information critical to protecting
public safety, such as chemical spills, results of testing to determine
levels of water and air pollution, compliance records, and maintenance
and repair records. Corporations could dump information they want to
hide into this department under the cover critical infrastructure
information. Corporate lobbyists can meet with government officials in
the name of critical infrastructure protection and hide their collusion
behind this exclusion.
If we create the Department without my amendment, corporations will
no longer need to bury their secrets in the footnotes, or even shred
their documents. They can hide them in the FOIA exclusion at the
Department of Homeland Security. No longer will industry officials have
to hide their meetings with government officials. The exemption from
FACA will offer them a safe haven within which to have those secret
meetings. State and local authorities would also be barred from and
subject to jail sentences for disclosing information that they require
to make public, even if it is because it is withheld at the Federal
level.
This amendment also protects the rights of whistleblowers. My
colleagues will go into more detail. But most whistleblowers are not as
high profile as Sharon Watkins of Enron or Coleen Rowley of the FBI, to
whom we owe a great debt, and many of them suffer retaliation. They
often lose their jobs or are demoted as punishment for speaking out.
It is clear that the protections currently available simply are not
working. Since the Whistleblower Protection Act was amended in 1994, 74
of the 75 court decisions have gone against whistleblowers. So my
amendment gives whistleblowers the right to go to court instead of
going through the administrative process and requires the same burden
of proof to be used in whistleblower cases as in all other cases
involving personnel actions.
Mr. Chairman, I believe that we are in great danger today of tipping
the delicate balance between security and basic, precious freedoms,
those rights that uniquely define our American democracy. We can have
both, and I urge my colleagues to restore the balance and support my
amendment.
Mr. Chairman, I reserve the balance of my time.
Mr. ARMEY. Mr. Chairman, I rise in opposition to the amendment.
The CHAIRMAN pro tempore. The gentleman from Texas is recognized for
15 minutes.
Mr. ARMEY. Mr. Chairman, I am happy to yield 2 minutes to the
distinguished gentleman from Texas (Mr. Thornberry).
Mr. THORNBERRY. Mr. Chairman, I thank the gentleman for yielding me
time.
Mr. Chairman, I oppose this amendment because I believe that this
amendment will significantly damage the ability of the Department of
Homeland Security to be effective.
Now, let me make a couple of points clear from the beginning.
Whistleblowers are protected in the legislation now. That is one of the
specific protections we were talking about earlier in the various
management flexibility amendments which were offered. Whistleblowers
are protected now.
Now, under current law, various companies and industries have to
disclose certain information. Nothing changes under this bill. They
still have to disclose that information, and we add no loopholes. There
are no new requirements, and they cannot hide. They still have to meet
the current requirements. But our hope is that under the new law, the
Department of Homeland Security will receive additional information
voluntarily from industries. They will tell us their vulnerabilities.
They will tell us what they are worried about in their computer
networks. They will tell us what they are worried about in their
infrastructure.
We want them to tell the Federal Government that information
voluntarily, so that we can help protect that infrastructure. They will
not disclose that information if you just turn right around and make it
public. It could be trade secrets, it could be information that you are
giving to the terrorists. You certainly do not want to help them.
So, to go as far as the amendment does in requiring this additional
information, which is voluntarily disclosed to the government, to turn
around and make all that public means that companies simply will not
disclose it, we will not know their vulnerabilities, and this
Department will not be able to do its job to protect infrastructure.
Mr. Chairman, I would suggest the better course would be to reject
this amendment. There are essential protections already in the bill. We
do not need more.
Ms. SCHAKOWSKY. Mr. Chairman, I yield 3 minutes to the gentlewoman
from Hawaii (Mrs. Mink), a cosponsor of the amendment.
Mrs. MINK of Hawaii. Mr. Chairman, I thank the gentlewoman for
yielding me time.
Mr. Chairman, I would like to directly respond to the prior speaker,
who made a case for further extension of the exemptions for the Freedom
of Information Act by arguing that it was necessary in order to protect
private sources of information that might be necessary for this new
Department.
I want to call the attention of the House to the current Freedom of
Information Act, which already includes nine exemptions for all Federal
agencies, including the Defense Department and all the other security-
type organizations that now exist that fall under the Freedom of
Information Act and have done so for the last 30 years, because they
are protected under the exemptions that exist under current law.
The exemptions are all classified documents. The government has the
power
[[Page H5847]]
to classify documents. So if there is something in their possession
that is essential to the national security or homeland security, they
could classify those documents. They have that power inherent in the
FOIA legislation.
As far as private confidential trade secrets, there is an exemption
specifically for business information. So there exists already the
power of the government to classify as nonapproachable by a Freedom of
Information request information which is private, trade secrets, or
something which is essential to the protection of business.
All of these rules exist. The exemptions exist. They were part of
legislation which I helped to work out in the early 1970s, and they
have stood the test of time.
It has created a broad range of protections for the people of the
United States. The most important liberty, freedom, that we have is
that we as individual citizens of this country have the right to
information that the government possesses, and we do so by making a
FOIA request.
I cannot conceive of enlarging the nine exemptions that already
exist. What kind of a Department of Homeland Security are we creating?
Why does it have to have all of the super protections of private
information, when we already have nine exemptions that exist that can
protect every single suggested item that has been discussed here on the
floor?
So I hope that people will realize that under this climate, being
concerned about terrorism and the protection of property and the
protection of life and so forth, we cannot jeopardize those things that
we have fought for so hard, so diligently, and which have, to a large
measure, enabled the public of the United States to know what is going
on. The nuclear tests out in the Midwest and the terrible things that
happened from them would have continued to be the secrets of the
government if we did not have FOIA. But because we had the Freedom of
Information Act, we enabled the public to be better informed and we
enabled the Congress to do a better job in legislating.
Mr. Chairman, I urge adoption of this amendment.
Mr. ARMEY. Mr. Chairman, I yield 3 minutes to the gentleman from
Virginia (Mr. Tom Davis), the author of the original FOIA language, who
has done such an excellent job.
(Mr. TOM DAVIS of Virginia asked and was given permission to revise
and extend his remarks.)
Mr. TOM DAVIS of Virginia. Mr. Chairman, let me first of all say I
think the problem with this amendment is it goes in the wrong
direction. We are all strong supporters of FOIA legislation. I served
in local government for 15 years, and the Freedom of Information Act
applies to local government. Strangely enough, Congress is exempt from
any of these exemptions.
This is a very narrowly tailored FOIA exemption that will allow
companies out there that have innovative ideas in terms of how to
protect our critical infrastructure, it will allow them to disclose it
to the government without fear of it being discovered by competitors or
terrorists.
We have to remind ourselves that we discovered when we went into the
caves in Afghanistan that al Qaeda groups had copies of GAO reports and
other government information obtained through the Freedom of
Information Act. While we work to protect our Nation's assets in this
war against terrorism, we also need to make sure we are not arming
terrorists.
The previous speaker spoke about how they worked on this in the early
1970s. I would submit the world has changed. There was a challenge from
the other side saying there were no instances where information was not
shared. Just last year it was discovered that the widely used
implementations of the simple network management protocol, a
fundamental element of the Internet, contained vulnerabilities that
could expose the Internet's infrastructure to attack. Many companies
were reluctant to give the government information about these
vulnerabilities, which were not yet mentioned in the general press, for
fear that the vulnerability information would be forced to be disclosed
once it was in the government's hands and this could create substantial
risk to their customers and to the Internet and the U.S. economy.
I might also add the Department of Energy for years has asked that
electric utility industries provide it with a list of critical
facilities. They have consistently refused because they do not want to
create a target list that could be released under the Freedom of
Information Act. I suspect there are many, many others.
We need to remember that the critical infrastructure of the United
States is largely owned and operated by the private sector, 90 percent
operated by the private sector. Understanding the vulnerabilities,
experiencing the vulnerabilities, finding, if you will, antidotes to
these vulnerabilities, is something that the private sector has much
more experience in than the public sector. We need that information at
the Federal level if we are to protect our critical infrastructure.
This very narrowly tailored amendment, I might add, went through the
Senate committee on a bipartisan unanimous vote. There were no concerns
over there, because it is narrowly tailored. This is essential if we
are going to get companies to be able to volunteer to the government
solutions that can help us protect our critical infrastructure.
There is precedent for this. I heard arguments that this is
unprecedented. If you take a look at the successful Y2K Act,
Information Readiness Disclosure Act, it provided a limited FOIA
exemption and civil litigation protection for shared information.
We narrowly tailor these so we do not take away what FOIA offers the
general public, very important protections. But if we do not allow it
in these narrow instances, I am afraid we are not going to have the
tools to fight terrorism. This legislation, I think, helps the private
sector, including the ISOs, to move forward without fear from the
government. It is essential.
Mr. Chairman, I oppose this amendment.
Ms. SCHAKOWSKY. Mr. Chairman, I am proud to yield 2 minutes to the
gentleman from California (Mr. Waxman), the ranking Democrat on the
Committee on Government Reform and a leader in this House on both
homeland security and good government.
Mr. WAXMAN. Mr. Chairman, I thank the gentlewoman for yielding me
time.
Mr. Chairman, it is remarkable, the position of the Republican Party
today. It really shows the bankruptcy of that party. The Republican
party used to stand for the idea that there should be some distrust of
government. The theory was it can get too big, too bureaucratic; the
federal government could interfere in the lives of individuals and
start dictating policies from Washington. So what does this bill do? It
grows the bureaucracy. It wastes money. With these Freedom of
Information and FACA changes, it allows the government to keep things
secret.
You know who wrote the Freedom of Information Act? Barry Goldwater
wrote it. Barry Goldwater wrote FOIA, because he said a government that
has so much power can intrude in the lives of individuals, and he
wanted the public to know what was going on.
This bill and the way it is drafted without the Schakowsky amendment
would allow this administration to meet in secret with business
executives and lobbyists, just like it did in the Energy Task Force
Vice President Cheney chaired. The administration could keep it all
quiet. It could, in the name of national security, reward all these big
industry groups that it is now so beholden to, by meeting with
executives from the airline industry when they come in for special
favors. But the public will never know, because the Freedom of
Information Act, which protected all of us, will now be wiped out.
Remember the days when the Republicans said Washington is not the
place where all the wisdom is located? Well, what do they do? They
preempt the States from having Freedom of Information laws that are
more open to the public than what we are going to get in the bill
passed today.
It is a very sad day to see this in the Republican Party. I did not
used to agree with them, but I used to respect them, when they worried
about a big intrusive government that wasted money, that grew
bureaucracy and became inefficient. Now it is responsive just to
special interest big money.
Mr. ARMEY. Mr. Chairman, I am pleased to yield 3 minutes to the
gentleman from Indiana (Mr. Burton), the
[[Page H5848]]
distinguished chairman of the Committee on Government Reform, the
committee of jurisdiction.
Mr. BURTON of Indiana. Mr. Chairman, I thank the gentleman for
yielding me time.
Mr. Chairman, I would just like to say to my good friends, the
gentleman from California (Mr. Waxman) and the gentlewoman from
Illinois (Ms. Schakowsky), I have high regard for both of them. We have
tried to work on this in a bipartisan manner, and I really hope this
whole issue does not degenerate into a political name-calling session,
because we all want the same thing. We want to make sure Americans are
secure and free from the threat of terrorism.
Now, the President wants to encourage the private sector to give
information to the Department of Homeland Security to enhance the
safety of the American people. He is concerned that the people we are
talking about will not volunteer information if they think whatever
they turn over will be released to the public under the Freedom of
Information Act. I think he is right. You would not want some terrorist
getting some of this information that would be voluntarily given to
Homeland Security.
Let me give you an example. If a business owner recognizes that some
part of his business infrastructure might be vulnerable to a terrorist
attack, we want him to be able to come to the government and tell us
about what he thinks might be done and how to deal with it. We want him
to go to the Department of Homeland Security and be very candid. We
wanted to be proactive, not reactive.
This is the sort of information we must have to prevent tragedy to
the American people. But if the businessman is worried and if his
lawyers are worried that whatever he voluntarily discloses will go
straight into the public domain and hence maybe to the terrorists, as
we said earlier today, then he probably will not do it.
We are in a war. I hope my colleagues all remember that. We are in a
war. We need to take steps to guarantee that those people will come to
us with that information to protect the safety of the American people,
and that is why I oppose this amendment.
I think the concerns raised by the sponsors of the bill, and I have
high regard for all of them, are misplaced. The Freedom of Information
Act will not be harmed. The legislation we will vote on today will not
allow people to dodge the Freedom of Information Act. This bill does
not change FOIA or the rules of FOIA for any other forms that
businesses have to produce to any agency of the Federal Government. The
only thing that will not be subject to FOIA information are the
vulnerabilities to terrorist attacks.
The government needs the kind of information we are talking about,
and we will not get it unless there is a voluntary decision by the
business people and the private sector to disclose it to government.
They are not going to do it if they feel like they are going to be
threatened or they will expose something that might lead to a terrorist
attack.
This is a commonsense, real world proposal, and we should not tie our
hands behind our backs when it comes to fighting terrorism and
protecting the American people.
I hate to say this, but I have high regard for the gentlewoman from
Illinois (Ms. Schakowsky) and the gentleman from California (Mr.
Waxman), but this amendment would do more harm than good.
{time} 1715
We need to make sure we take every step possible to get the private
sector working with the government to make sure we are free from
terrorist attacks.
The CHAIRMAN pro tempore (Mr. Sweeney). The Chair wishes to inform
Members that the gentleman from Texas (Mr. Armey) has 7 minutes
remaining and the gentlewoman from Illinois (Ms. Schakowsky) has 5\1/2\
minutes remaining.
Ms. SCHAKOWSKY. Mr. Chairman, I yield 3\1/2\ minutes to the gentleman
from Ohio (Mr. Kucinich) whose whistleblower amendment passed in the
Committee on Government Reform, the language included in this bill.
Mr. KUCINICH. Mr. Chairman, it would be unfortunate, in our efforts
to improve homeland security, if suddenly our government became less
open, less transparent. It would appear if we do that, then the
terrorists win, because their attack is on our basic premise of
democracy, of a free and open society.
The current language in the bill fails to protect transferred
homeland security, civil servants from whistleblower reprisals. Under
the current Whistleblower Protection Act, the standard bureaucratic
response has been to silence messengers blowing the whistle on national
security breakdowns.
Now, the Schakowsky-Kucinich-Mink amendment is designed, and it is
needed, to protect national security whistleblowers by allowing them to
petition Congress directly and providing an effective remedy for any
reprisal taken by the new agency.
Whistleblower rights are workers' rights and no worker should lose
his or her job for exposing waste, cover-up, and lies of his or her
superiors. It is ironic that in a bill which is designed to fight
terrorism we have a provision designed to terrorize workers.
The passage of this amendment is vital to protect the security of the
American people. The September 11 terrorist attacks highlight a long-
standing necessity to strengthen free speech protections for national
security whistleblowers, a number of whom have already made significant
contributions to reducing U.S. terrorist vulnerability.
Now, Mr. Chairman, I just want to offer one example of a case that
this House ought to be aware of, the case of Mark Graf.
Mark Graf was an alarm station supervisor and Authorized Derivative
Classifier. He worked 17 years at the Department of Energy's Rocky
Flats Environmental Technology Site. After the Wackenhut Services, a
private security agency, took over this site with more than 21 tons of
uranium and plutonium, Mark Graf witnessed the elimination of their
bomb detecting unit, sloppy emergency drills, and negligence at taking
inventory of the plutonium for months at a time. He and several other
high-level officials raised serious concerns about a terrorist risk to
the security of plutonium, as more than a ton of the material is
unaccounted for at Rocky Flats. He took his concerns to management,
which took no action.
In 1995, after blowing the whistle to a Member of Congress, Mr. Graf
was immediately reassigned from the areas that raised concerns in the
first place. In a classified memo to the site supervisors and later to
the Defense Nuclear Facilities Safety Board, he outlined specific
vulnerabilities which, if exploited, could result in catastrophic
consequences.
With no corrective action being taken, he did an interview with CBS
News. After the interview, he was subjected to a psychological
evaluation and placed on administrative leave. As a condition of
returning to work, he was gagged from speaking to Congress, the media,
the agency, and also under the threat of job termination.
In 1998, he filed and later won a whistleblower reprisal complaint
currently being appealed by his employers. His disclosures contributed
to legislation in the 1998 Defense Authorization Bill requiring an
annual review of the safety and security program.
We have a nuclear industry in this country with over 100 nuclear
reactors, many of which have been relicensed and have reactor vessels
that have been embrittled. We have a hole in a reactor that is trying
to be repaired in Toledo, Ohio. Nuclear reactors are part of the
critical infrastructure. This bill would let a cover-up be, in effect,
okay in the name of national security so that the public would never
know about a hole in a nuclear reactor or anything that was done that
compromises the security of people who lived in the area.
This amendment is necessary. This amendment is in the interests of
our national security and our public health.
Mr. ARMEY. Mr. Chairman, it is my pleasure to yield 2 minutes to the
distinguished gentleman from Ohio (Mr. Portman).
Mr. PORTMAN. Mr. Chairman, I think the FOIA concerns over parts of
this amendment have already been made by others, but I will say just to
my friend from Ohio, that is clearly not the intent of the underlying
bill nor is it the impact of the underlying bill. All of the FOIA
requirements that
[[Page H5849]]
we would have, including right to know, would continue to be operative.
This is a very narrow stipulation that, with regard to infrastructure
information provided by the private sector, that we would get limited
FOIA protection, which is absolutely necessary for national security,
and that has been discussed.
This amendment would also create a plaintiff lawyers' dream as I see
it, and that is the civil actions open to punitive damages for
whistleblowers claiming to have suffered from reprisal. The mere threat
of these punitive damages can cause defendants, including the
government, to settle cases; and it does, to settle cases that have
questionable merit just to reduce that risk of an extreme verdict.
The opportunity of punitive damages for a plaintiff, can make an
otherwise meritless case look awfully tempting to pursue, just in case
the jury does come in with a big verdict. It is excessive. Let us be
clear. The committee bill does have traditional whistleblower
protections in it. I am kind of tired of hearing it does not. Please
turn to page 185 of the bill, because it is right there. These are the
whistleblower protections that we have currently and they should be
continued. They are important.
We should be promoting team spirit at this new Department,
collaboration. The bill gives the Department the chance to give merit
pay, performance bonuses in order to make this department work better
as a team. That is the right incentive.
Let us not give incentives to start disputes in the off chance that a
clever plaintiffs' lawyer might find something to win in a settlement.
Let us stick with the strong whistleblower protections we have in the
underlying legislation. Let us stick with the FOIA provisions which are
appropriate to provide this narrow limitation with regard to
infrastructure information that is important to protecting the national
security of this country. Let us vote down this amendment and support
the underlying bill.
Ms. SCHAKOWSKY. Mr. Chairman, could I inquire as to how much time we
have remaining.
The CHAIRMAN pro tempore. The gentlewoman from Illinois (Ms.
Schakowsky) has 2 minutes remaining.
Ms. SCHAKOWSKY. Mr. Chairman, I yield the balance of the time to the
gentleman from Texas (Mr. Doggett).
Mr. DOGGETT. Mr. Chairman, how many times will this Congress need to
relearn the very basic lesson that an unaccountable government is an
irresponsible government? When we confront difficult problems, we can
either work to try to solve them, or we can seek to hide them. Without
the amendment that is being advanced at the moment, it is the latter
choice that is being made.
Exempting so much of this new bureaucracy from the Freedom of
Information Act and denying basic protections to whistleblowers is a
true ticket to trouble for America. It is a "kill-the-messenger" and
"hide-the-body" approach that tries to sweep all problems, including
ones that endanger basic public health and safety, under the carpet by
increasing the power of self-appointed censors and denying
whistleblowers protection from retaliation.
The only lesson that some people have learned from Enron is the value
of secrecy. After all, who exposed Enron's misconduct? A whistleblower
named Sheeron Watkins. Certainly no one in this Congress exposed it.
Indeed, some are still trying to ignore the causes of what happened at
Enron.
Meanwhile, with this Administration, this is not the only place where
secrecy is beloved. Just ask Vice President Cheney about his "Energy
Policy Development Group". We can ask, but he will not tell until a
court makes him do it.
Congress should not shield unscrupulous employers who wield the
powerful weapon of the pink slip to intimidate their workers into
silence in order to conceal and perpetuate activities that endanger
America.
{time} 1730
These are citizen crime-fighters, who deserve the protection that we
provide crime-fighters, not our scorn.
I have confidence in the power of courageous individuals to make
lasting contributions to our Nation--to improve our private and public
institutions. Congress should advance that interest by building in
government accountability and by ensuring that our government is as
open as possible, where employees are encouraged to fix security
problems, not to hide them.
Vote in favor of the Schakowsky amendment.
Mr. ARMEY. Mr. Chairman, I am proud to yield 1 minute to the
distinguished gentleman from Utah (Mr. Cannon).
(Mr. CANNON asked and was given permission to revise and extend his
remarks.)
Mr. CANNON. Mr. Chairman, I was intrigued by the comments of the
gentlewoman from Hawaii (Mrs. Mink) and also the gentleman from
California. My first job as a lawyer was to work with Stuart Udall in
the late 1970s when he was suing the Federal Government on the facts
that came out about the fallout, which came out, in fact, in the
context of FOIA requests.
Let me say that the information that came out was remarkable. I read
every page of that information of the discussions that were held at
very high levels in the military about how they should control the
information about fallout and subject citizens of the United States
knowingly to the unknown effects, known to be bad; but the scope of
those effects were unknown at the time.
I agree that it was appropriate to have that information come out and
be the subject of a lawsuit. The fact, though, is that that was
government activity that was made available through the Freedom of
Information Act.
The gentleman from California (Mr. Waxman) talked about the
Republican Party. These are governmental activities. What we are
dealing with in this exception is information that comes from private
parties who own 90 percent of the infrastructure.
This amendment is ill advised, inappropriate; and I suggest that my
colleagues vote against it.
Mr. ARMEY. Mr. Chairman, I am proud to yield 2 minutes to the
gentleman from Virginia (Mr. Moran).
Mr. MORAN of Virginia. Mr. Chairman, I really like and respect its
author, but I have to urge my colleagues to vote against the Schakowsky
amendment on the Freedom of Information Act.
This is a very narrow restriction on public disclosure of information
about the private industry's critical infrastructure. We all rely on
that privately owned infrastructure of this Nation: computer networks,
phone and power lines, airplanes, et cetera. As the gentleman from
Virginia (Mr. Tom Davis) said, 90 percent of our critical
infrastructure is owned by the private sector.
In President Clinton's Directive 63, an effort was put into play to
enable the owners of this infrastructure to communicate with each other
and formulate effective response plans to terrorism, extortion, and
hacking. However, PD-63, that Presidential directive, found that
companies would not share information about threats to their
infrastructure because of their lawyers' concerns about FOIA and
antitrust. Sharing such information would put them in an even more
vulnerable position with respect to their customers, their
shareholders, and their competitors.
I have to say, some of the objections that this amendment addresses
are misleading. It is not unprecedented. Congress passed Y2K
legislation to exempt information-sharing about critical infrastructure
vulnerabilities from use in lawsuits and disclosure to third parties.
It is narrower than that Y2K legislation. It contains numerous
definitions. It provides no immunity from liability, no limit on
discovery or lawsuits, no free pass on criminal activity. All required
disclosures under the Clean Air and Clean Water Act must continue.
If we do not include this limited FOIA restriction, we will not be
able to say we did everything we could to prepare and defend our
homeland. It is a narrowly crafted restriction on FOIA, and it can help
win the war on terrorism; so I urge my colleagues to join me in voting
against the Schakowsky amendment and for the Davis-Moran amendment,
which comes up next.
Mr. ARMEY. Mr. Chairman, I yield myself the balance of my time.
[[Page H5850]]
Mr. Chairman, the amendment of the gentlewoman from Illinois (Ms.
Schakowsky) would do two things. It would set aside some very carefully
crafted language that modifies FOIA out of consideration for private
sector firms who are asked to share crucial information with the
government. That would be a mistake to set that aside. We need these
firms that own so much of our infrastructure to cooperate.
Let me just say, FOIA was designed for the American people to
understand what is going on in this government; not designed, nor would
I think many Americans would think it appropriate, to use FOIA to force
private citizens or corporations to give their information up to people
like trial lawyers, newspaper editors, or college professors, the three
practical categories of people who access FOIA information.
The second part of the gentlewoman's amendment is predicated on the
misrepresentation that we do not protect whistleblowers in this
legislation. This myth has been running amok in public discourse since
the President proposed this. It was always the President's intention,
and I believe discerning people would have recognized the President's
intention in everything he said and submitted. It certainly is our
intention on page 185 of this bill to protect whistleblowers.
So, one, Mr. Chairman, the argument that this bill contains no
protection for whistleblowers is just plain flat wrong. The
perceptiveness of any eighth-grader who can read would reveal that to
anyone.
Now, what the gentlewoman does, building on the myth that there is no
protection, is to provide extra special protections in the form of
compensatory damages. Also, and I like this one, lawyers across America
must be licking their chops over this one: "any other relief that the
court considers appropriate not currently available to
whistleblowers."
Mr. Chairman, if Members want to win the lottery, they should buy a
ticket. In the meantime, vote down this amendment and defend the rights
of the American people that are legitimate and just.
The CHAIRMAN pro tempore (Mr. Sweeney). All time has expired.
The question is on the amendment offered by the gentlewoman from
Illinois (Ms. Schakowsky).
The question was taken; and the Chairman pro tempore announced that
the noes appeared to have it.
Ms. SCHAKOWSKY. Mr. Chairman, I demand a recorded vote.
The CHAIRMAN pro tempore. Pursuant to clause 6 of rule XVIII, further
proceedings on the amendment offered by the gentlewoman from Illinois
(Ms. Schakowsky) will be postponed.
[...]
Amendment No. 24 Offered by Ms. Schakowsky
The CHAIRMAN pro tempore (Mr. Sweeney). The pending business is the
demand for a recorded vote on the amendment No. 24 offered by the
gentlewoman from Illinois (Ms. Schakowsky) on which further proceedings
were postponed and on which the noes prevailed by voice vote.
The Clerk will redesignate the amendment.
The Clerk redesignated the amendment.
Recorded Vote
The CHAIRMAN pro tempore. A recorded vote has been demanded.
A recorded vote was ordered.
The CHAIRMAN pro tempore. This will be a 5-minute vote.
The vote was taken by electronic device, and there were--ayes 188,
noes 240, not voting 5, as follows:
[Roll No. 363]
AYES--188
Abercrombie
Ackerman
Allen
Andrews
Baca
Baird
Baldacci
Baldwin
Barcia
Barrett
Becerra
Bentsen
Berkley
Berman
Blagojevich
Blumenauer
Bonior
Borski
Boswell
Boucher
Brady (PA)
Brown (FL)
Brown (OH)
Capps
Capuano
Cardin
Carson (IN)
Carson (OK)
Clay
Clayton
Clement
Clyburn
Condit
Conyers
Costello
Coyne
Crowley
Cummings
Davis (CA)
Davis (FL)
Davis (IL)
DeFazio
DeGette
Delahunt
DeLauro
Deutsch
Dingell
Doggett
Doyle
Edwards
Engel
Eshoo
Etheridge
Evans
Farr
Fattah
Filner
Frank
Frost
Gephardt
Gonzalez
Gordon
Green (TX)
Gutierrez
Hall (OH)
Hastings (FL)
Hilliard
Hinchey
Hinojosa
Hoeffel
Holden
Holt
Honda
Hooley
Horn
Hostettler
Hoyer
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson, E. B.
Jones (OH)
Kanjorski
Kaptur
Kennedy (RI)
Kildee
Kilpatrick
Kleczka
Kucinich
LaFalce
Langevin
Lantos
Larsen (WA)
Larson (CT)
Lee
Levin
Lewis (GA)
Lipinski
Lofgren
Lowey
Luther
Lynch
Maloney (CT)
Maloney (NY)
Manzullo
Markey
Mascara
Matheson
Matsui
McCarthy (MO)
McCarthy (NY)
McCollum
McDermott
McGovern
McKinney
McNulty
Meek (FL)
Meeks (NY)
Millender-McDonald
Miller, George
Mink
Mollohan
Moore
Morella
Nadler
Napolitano
Neal
Oberstar
Obey
Olver
Ortiz
Owens
Pallone
Pascrell
Pastor
Paul
Payne
Pelosi
Petri
Phelps
Pomeroy
Price (NC)
Rahall
Rangel
Reyes
Rivers
Rodriguez
Ross
Rothman
Roybal-Allard
Rush
Sabo
Sanchez
Sanders
Sandlin
Sawyer
Schakowsky
Schiff
Scott
Serrano
Sherman
Skelton
Slaughter
Solis
Stark
Strickland
Stupak
Tauscher
Thompson (CA)
Thompson (MS)
Thurman
Tierney
Towns
Udall (CO)
Udall (NM)
Velazquez
Visclosky
Waters
Watson (CA)
Watt (NC)
Waxman
Weiner
Wexler
Woolsey
Wu
Wynn
NOES--240
Aderholt
Akin
Armey
Bachus
Baker
Ballenger
Barr
Bartlett
Barton
Bass
Bereuter
Berry
Biggert
Bilirakis
Bishop
Boehlert
Boehner
Bonilla
Bono
Boozman
Boyd
Brady (TX)
Brown (SC)
Bryant
Burr
Burton
Buyer
Callahan
Calvert
Camp
Cannon
Cantor
Capito
Castle
Chabot
Chambliss
Coble
Collins
Cooksey
Cox
Cramer
Crane
Crenshaw
Cubin
Culberson
Cunningham
Davis, Jo Ann
Davis, Tom
Deal
DeLay
DeMint
Diaz-Balart
Dicks
Dooley
Doolittle
Dreier
Duncan
Dunn
Ehlers
Ehrlich
Emerson
English
Everett
Ferguson
Flake
Fletcher
Foley
Forbes
Ford
Fossella
Frelinghuysen
Gallegly
Ganske
Gekas
Gibbons
Gilchrest
Gillmor
Gilman
Goode
Goodlatte
Goss
Graham
Granger
Graves
Green (WI)
Greenwood
Grucci
Gutknecht
Hall (TX)
Hansen
Harman
Hart
Hastings (WA)
Hayes
Hayworth
Hefley
Herger
Hill
Hilleary
Hobson
Hoekstra
Houghton
Hulshof
Hunter
Hyde
Isakson
Issa
Istook
Jenkins
John
Johnson (CT)
Johnson (IL)
Johnson, Sam
Jones (NC)
Keller
Kelly
Kennedy (MN)
Kerns
Kind (WI)
King (NY)
Kingston
Kirk
Knollenberg
Kolbe
LaHood
Lampson
Latham
LaTourette
Leach
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas (KY)
Lucas (OK)
McCrery
McHugh
McInnis
McIntyre
McKeon
Menendez
Mica
Miller, Dan
Miller, Gary
Miller, Jeff
Moran (KS)
Moran (VA)
Murtha
Myrick
Nethercutt
Ney
Northup
Norwood
Nussle
Osborne
Ose
Otter
Oxley
Pence
Peterson (MN)
Peterson (PA)
Pickering
Pitts
Platts
Pombo
Portman
Pryce (OH)
Putnam
Quinn
Radanovich
Ramstad
Regula
Rehberg
Reynolds
Riley
Roemer
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Royce
Ryan (WI)
Ryun (KS)
Saxton
Schaffer
Schrock
Sensenbrenner
Sessions
Shadegg
Shaw
Shays
Sherwood
Shimkus
Shows
Shuster
Simmons
Simpson
Skeen
Smith (MI)
Smith (NJ)
Smith (TX)
Smith (WA)
Snyder
Souder
Spratt
Stearns
Stenholm
Stump
Sullivan
Sununu
Sweeney
Tancredo
Tanner
Tauzin
Taylor (MS)
Taylor (NC)
Thomas
Thornberry
Thune
Tiahrt
Tiberi
Toomey
Turner
Upton
Vitter
Walden
Walsh
Wamp
Watkins (OK)
Watts (OK)
Weldon (FL)
Weldon (PA)
Weller
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Young (AK)
Young (FL)
NOT VOTING--5
Blunt
Combest
Meehan
Roukema
Terry
{time} 2007
So the amendment was agreed to. [sic]
The result of the vote was announced as above recorded.
[...]
