Congressional Record: January 22, 2003 (Senate)
Page S1307-S1324

                           EXECUTIVE SESSION


                           HOMELAND SECURITY


  A second problem I have with the Homeland Security Act is the section 
of the law that exempts the agency from complying with some aspects of 
the Freedom of Information Act, FOIA, the key Federal statute helping 
the public keep track of what their government is doing. Government 
bureaucrats often don't like FOIA requests because they take time and 
resources to answer. Many would like to reduce the public's right to 
  That's what happened in the Homeland Security Act. Language was added 
to that law that unnecessarily limits the use of FOIA.
  Last year, Senators Leahy, Bennett, and I worked out a FOIA 
compromise which was included in the original Senate Governmental 
Affairs Committee bill. At the homeland security mark-up, we were told 
that the Administration supported our compromise language. But this 
compromise was ultimately dropped. Instead, the Homeland Security Act 
cuts back on the public's right to know what its government is up to by 
expanding the types of information that the new department can keep 
shielded from the public, including unclassified information about 
``critical infrastructure'' issues involving such matters as electrical 
grids, computer systems, or water treatment facilities.
  There is a related problem with the HSA language barring use of 
critical infrastructure information in civil proceedings. Suppose the 
DHS gets information submitted by a chemical company indicating a 
chemical plant is in danger of releasing a toxic gas due to a 
vulnerability in its critical infrastructure. The statute ties the 
hands of the DHS, barring it from disclosing the information in court 
without the chemical company's consent. The statute even bars the DHS 
from giving the information to another agency such as the Environmental 
Protection Agency, EPA.
  What's more, a whistleblower within the DHS or the EPA could be 
thrown in jail for disclosing this unclassified information. Even a 
member of Congress who releases the information presumably could be, 
under some circumstances, jailed! I find this to be incredible. 
Limiting the public's right to know and jailing whistleblowers isn't 
the direction we should be going and is not necessary to protect 
  At the Governmental Affairs hearing, Governor Ridge seemed to agree 
that criminalizing whistleblower disclosures of unclassified critical 
infrastructure information was not the intent of the Homeland Security 
Act. I am hopeful that Governor Ridge will help us to remedy some of 
the FOIA problems caused by the Homeland Security Act and restore the 
bipartisan compromise worked out in our committee.