Statement Of Senator Patrick Leahy,
Chairman, Senate Committee On The Judiciary
“America Still Unprepared-America Still in Danger:
The October 2002 Hart-Rudman Terrorism Task Force Report"

November 14, 2002

I would like to express my appreciation to the members of the Council on Foreign Relations-sponsored Task Force for preparing the report.  The Nation is lucky indeed to have the continued service of former Senators Warren Rudman and Gary Hart.  I am sorry that Senator Hart could not be here today.  The report that is the focus of this hearing reflects the pragmatism of its authors with clear, practical steps for the country to take at the federal, state and local levels to enhance our security. 

The Task Force's report highlights America’s remaining vulnerabilities to terrorist attacks.  This is of the utmost concern to all Americans.  Although numerous security measures have been implemented by this Congress and other governmental entities in the wake of September 11, the report aptly illuminates that further efforts are needed to protect our homeland.  We all hope that September 11 is an isolated event but we must not become complacent as that tragic day moves further into history without a subsequent attack.  I thank Senator Feinstein and Senator Kyl for holding this hearing to make sure that we hear the recommendations of this Task Force report and continue to assess and address our vulnerabilities to terrorist attacks.

The Task Force’s report underscores both the diversity of our vulnerabilities and the complexities inherent to their resolution.  It will be important for us to keep in mind the big picture, to think broadly on the subject rather than myopically address a particular vulnerability at the expense of others.

I agree with many of the suggestions in the report.  I want to mention just three key suggestions. First, the report makes important recommendations on how we should help first responders in our rural and urban communities plan and train for catastrophic attacks.  We made important progress when we established domestic preparedness grants to support state and local law enforcement agencies and other first responders prepare for and prevent terrorist attacks in section 1014 of the USA PATRIOT Act (Public Law 107 56).  This report notes that only one such Center for Domestic Preparedness currently exists to provide training to first responders on how to deal with a chemical attack.  We need to do better.  That is why the Department of Justice Authorization Act, which was enacted less than two weeks ago, authorized funding for additional Centers for Domestic Preparedness in Texas, New Mexico, Louisiana, Nevada, Vermont and Pennsylvania, and added additional uses for grants from the Office of Domestic Preparedness to support state and local law enforcement agencies.

The Hart-Rudman Commission report recommends that the National Guard be better equipped to deal with a domestic defense mission and help first responders.  I fully agree.  The report correctly notes that the Guard is well-positioned to help civil authorities deal with terrorist attacks and catastrophic incidents when it serves under the command and control of the nation's governors.  Under a governor's control, the National Guard is not bound by posse comitatus restrictions and can seamlessly integrate with local, state, and federal emergency response agencies.  Yet, as the report acknowledges, the Guard still does not have the resources to adequately fulfill its domestic defense tasks.  Several states, including Vermont, lack so-called civil-support teams that can quickly help alleviate the consequences of a weapons of mass destruction attack.  While I believe the report goes too far in recommending that domestic defense become the primary mission of the Guard, the report makes positive overall recommendations that would help bolster the Guard’s capability to protect our domestic security.

Second, I agree with the recommendations in the report that we need to improve our border security, particularly with Canada, which is our largest trading partner.  That is why in the USA PATRIOT Act -- the anti-terrorism law that we passed in record time -- called for the tripling of border security agents and the deployment of enhanced security technology to improve border security with minimal adverse affect on legitimate commerce.

Finally, the report calls for increased information sharing.  That is an important goal, but can be difficult to accomplish when the government is simultaneously trying to keep secret sensitive information that could aid terrorists who seek to harm this country.  Yet, our best defense against terrorism is improved communication and coordination among local, state, and federal authorities; and between the U.S. and its allies.  Through these efforts, led by the federal government with the active assistance of others involved, we can enhance our prevention efforts, improve our response mechanisms, and at the same time ensure that funds allotted for protection against terrorism are being used most effectively.   

Unfortunately, the recent sniper rampage in the Washington, D.C. area demonstrated the dire need for such coordination.  Fortunately, we were able to see the productive results of effective information sharing and coordination with the arrest of the snipers on October 31. 

Information sharing does not mean information dumping.  We want our law enforcement officials to have the information they need to do their jobs effectively and efficiently, with communications equipment that allows different agencies to talk to one another and with the appropriate training and tools so that multiple agencies are able to coordinate their responses to emergencies.  We all know that we must have information-sharing, but we have to make sure we do not go overboard because that would be bad for security if the information is not accurate, complete, or relevant.  And, it would be bad for privacy.  We do not want the Federal government to become the proverbial “big brother” while every local police and sheriff’s office become “little brothers.”  How much information should be collected, on what activities and on whom, and then shared under what circumstances, are all important questions that should be answered with clear guidelines understandable by all Americans and monitored by Congress, in its oversight role, and by court review to curb abuses. 

The legislation establishing the new Department of Homeland Security that was passed by the House of Representatives yesterday provides virtually blanket authority for information sharing without any clear guidelines.  This is a big problem, but in the President’s rush for legislation we will not likely be able to fix it until another day.

Information sharing between the government and private sector entities also raises complex issues.  Encouraging cooperation between the private sector and the government to keep our critical infrastructure systems safe from terrorist attacks is a goal we all support.  But, the appropriate means to meet this goal has been a matter of important debate and consideration. 

The Task Force report recommends an exemption from the Freedom of Information Act (FOIA) “in instances when critical infrastructure industry leaders agree to share information about their security vulnerabilities with federal agencies,” an antitrust exemption for participating industries and liability “safeguards and limits.”  I have serious concerns about this recommendation.

The FOIA already exempts from disclosure matters that are classified; trade secret, commercial and financial information, which is privileged and confidential; various law enforcement records and information, including confidential source and informant information; and FBI records pertaining to foreign intelligence or counterintelligence, or international terrorism.  These already broad exemptions in the FOIA are designed to protect national security and public safety. 

Indeed, an FBI official testified more than five years ago, in September, 1998, that the private sector’s FOIA excuse for failing to share information with the government was, in essence, baseless because the FBI was able to use the confidential business record exemption under (b)(4) “to protect sensitive corporate information, and has, on specific occasions, entered into agreements indicating that it would do so prospectively with reference to information yet to be received.”

Granting companies immunity from the antitrust laws, as the Task Force report recommends, is both unnecessary and dangerous.  It is an invitation for anticompetitive conduct that may be hard to police by the Justice Department.  It is also not necessary when the Justice Department’s Antitrust Division already has a process in place to give comfort to private sector companies that seek to meet for the specific goal of protecting critical infrastructures.  Such “business review” letters have in fact, been granted to some critical infrastructure-related companies. 

Granting immunity from civil liability is also a bad idea.  Such civil liability immunity is an invitation for companies to “game” the system by producing information or documents under the guise of protecting our national security only to block government regulators who may want to use the same information in an enforcement action.  Such immunity risks tie the hands of the federal regulators and law enforcement agencies working to protect the public from imminent threats.  It may give a windfall to companies who fail to follow federal health and safety standards and end up jeopardizing important public safety interests in the name of protecting our critical infrastructure. 

Finally, an overly-broad FOIA exemption would encourage government complicity with private firms to keep secret information about critical infrastructure vulnerabilities, reduce the incentive to fix the problems and end up hurting rather than helping our national security.  In the end, more secrecy may undermine rather than foster security. 

I worked on a bipartisan basis with Senators Levin and Bennett to craft a more narrow and responsible exemption that accomplishes the goal of encouraging private companies to share records of critical infrastructure vulnerabilities with the new Department of Homeland Security, without providing incentives to “game” the system of enforcement of environmental and other laws designed to protect the nation’s public health and safety.  This compromise solution was supported by the Administration and other Members of the Committee on Governmental Affairs. The provision would exempt from the FOIA certain records pertaining to critical infrastructure threats and vulnerabilities that are furnished voluntarily to the new Department and designated by the provider as confidential and not customarily made available to the public.  Portions of records that are not covered by the exemption would be released pursuant to FOIA requests.  This compromise did not provide any civil liability or antitrust immunity that could be used to immunize bad actors or frustrate regulatory enforcement action, nor did the compromise preempt state or local sunshine laws.

Unfortunately, the version of the legislation establishing a new Department of Homeland Security passed, by the House of Representatives yesterday, jettisoned the bipartisan compromise on the FOIA exemption worked out in the Senate with the Administration’s support.  The House favored granting businesses the legal immunities and liability protections they sought so vigorously.  Significantly, this provision will send to jail any FOIA officer or other federal government employee who discloses any “critical infrastructure” information.  This will be an effective way to preserve government secrecy by criminalizing leaks – not of classified information or national security related information, but of information that a company decides it does not want public, particularly if disclosure of the information could bolster public safety and health.  Should this provision become law, we will have to be vigilant to monitor its implementation to ensure that the risks this provision poses do not become a reality.

I look forward to hearing from the distinguished panel of witnesses this afternoon and continuing to focus our attention on how best to protect our Nation.

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