FEMA Act

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I come to the floor to raise questions about whether Mr. Lynn ought to be Deputy Secretary of Defense. I do it with the normal courtesy, that a President ought to be able to name people to his team, and I do it based upon two questions: One, the use of the waiver for him to be in this position contrary to the Executive order of President Obama; and, secondly, to raise questions about his activity as chief financial officer in the second Clinton administration, and now coming to be Deputy Secretary of Defense. I will try to lay this out as best I can with documentation.

I will not be able nor do I need to document the first consideration on the waiver. I wanted to express views on it.

I thought I had seen the last of Mr. Lynn when President George W. Bush first took office. I was dead wrong. So I had to send my staff out to where the Senate buries old skeletons. It is the Records Center out in Maryland, the scenic countryside about 20 miles from the Capitol. There I had my staff dig up the remains of what came to be known, and what I came to know about Mr. Lynn's activities as chief financial officer about 10 years ago.

I would give a little bit of word of advice to my colleagues, archival of your materials. I found that political nominees, good and bad, come back like Australian boomerangs. Some take longer than others to return, but eventually you will see them again.

Mr. Lynn is currently employed as senior vice president, government operations, of a major defense contractor, Raytheon. Until June 2008, Mr. Lynn was registered as Raytheon's principal lobbyist to the Department of Defense.

I have serious questions about the nomination. My first area of concern is that Mr. Lynn does not appear to meet President Obama's strict new ethical standards for executive branch appointees. Those standards were laid down in an Executive order of January 21, 2009.

It is important for me to say what ethics means to me. Everyone has a different idea as to what ethics represents. This is a complicated issue, and I don't want there to be any confusion about this word or principle. The Merriam Webster dictionary defines the word ``ethics,'' one, as the discipline dealing with what is good and bad, with moral duty and obligation. This definition is very clear, but I want to go a step further to say that, to me, ethics are very uncomplicated principles of life. Simply put, when faced with tough choices or decisions, we must always do what is true and correct.

Throughout the Presidential campaign, candidate Barack Obama repeatedly promised to close the revolving door and change the political culture in Washington. This was one of his top priorities. Consistent with those promises, within 24 hours of being sworn in, he signed the Executive order that set new ethical standards in stone. Under the ``revolving door ban'' section of those rules, Mr. Lynn should have been barred from serving as Deputy Secretary of Defense until July 2011. I understand Mr. Lynn has been given a special order by the administration to further the public interest.

According to a letter I have received from OMB Director Peter Orszag of February 3, 2009--and I have it here if anybody is interested in reading it. Senator Levin has already had this letter printed in the Record.

According to this letter from OMB Director Peter Orszag of February 3, 2009, Mr. Lynn's waiver was based on ``exigent circumstances relating to national security.''

Director Orszag stated:

Mr. Lynn is uniquely qualified for this position and is

urgently needed to serve on the President's national security

team.

Mr. Orszag was responding to my letter of January 29, 2009, asking for the justification of the waiver.

I ask unanimous consent to have that letter printed in the Record.

I also understand that President Obama's picks for these key positions should be respected. I said that about President Bush. I have to say it about President Obama. They were elected. They have a certain respect of the people, and that respect should not be questioned by the Senate except under extraordinary circumstances. I think these are extraordinary circumstances, and I am bringing it up.

Mr. Lynn has informed me that he would be divesting his financial stakes in Raytheon in the next 90 days. He also said he would not engage in any Raytheon-related decisions for 1 year at DOD unless he receives a special waiver.

Regrettably, for Mr. Lynn and for American taxpayers, getting rid of conflicts of interest is not as easy as it might sound. The Raytheon Corporation has hundreds of potential contracts and programs with the Department of Defense. As such, the Office of Government Ethics will have to set up a full-time department just to handle Mr. Lynn's conflict-of-interest Raytheon waivers.

On the one hand, I believe the best leaders lead by example. So mean what you say. For that reason, I challenge Mr. Lynn to take control of this ethical debate and demonstrate true leadership on this issue by sticking to the principles set forth by President Obama's Executive order on ethics commitments by executive branch personnel. Special waivers and exemptions undermine the basic principle of good government.

Changing the rules as you go along tends to foster a basic sense of distrust of the Government of all Americans. We all know that is a problem. We have to be cautious to make sure we don't make the situation worse. Why make rules if you know you are going to break them? How can gutting the ethical heart of the new ethics rule be in

the public interest when those very same rules were created in the first place in the public interest?

Even the best qualified nominees with the highest recommendation should recognize when serving in his or her post would not be in the public interest. I believe the American people expect nominees to be true and honest. Given his chosen career path, Mr. Lynn should know he does not comply with the spirit or intent of the Executive order on ethics.

If he is seriously devoted to serving his country and this President, Mr. Lynn should consider withdrawing his nomination and ask to be reconsidered when he is within the ethics ``revolving door'' principles laid down by my President, Mr. Obama. Then he would come back in 2 years to seek such appointment. This country will always need good leaders who lead by example. By doing this, he would set the standard of excellence for all other nominees to follow. It would restore integrity and credibility to President Obama's new ethics rules. As it stands now, unfortunately, the Lynn nomination is rolling down a very low road at high speed. By setting the new rules aside for the first top-level appointee to come down the pike, President Obama and his administration appear to embrace the very same culture President Obama promised to change.

None of us knows for sure whether Mr. Lynn's nomination is truly in the public interest. We can only hope it is. In time, we will find out.

What is going to take me longest to explain is documentation of some activity of Mr. Lynn when he was Chief Financial Officer and how that fits into some questions I have about the position to which he was nominated.

My second area of concern pertains to Mr. Lynn's financial management record at the Pentagon. Mr. Lynn served as Chief Financial Officer at the Department of Defense from November 1997 through 2000. I first came to know Mr. Lynn in 1998, after he was appointed to the position. Between June 1997 and July 1998--1 month, approximately--I conducted an in-depth investigation of internal financial controls at the Department of Defense. I was testing basically internal controls within the Department. I reviewed about 200 financial transactions from Pentagon offices where the fraud had occurred. We examined purchase orders, contracts, invoices, delivery verifications or receipts, and, finally, we examined final payments. We even checked to see if remit addresses were correct. In short, we looked at the whole ball of wax.

The results of this investigation were presented in a report in September 1998. This is a report my staff and other people put together. The report concluded, in September 1998, involving the Chief Financial Officer and/or things under his command or jurisdiction:

Internal controls at the Department of Defense were weak or

nonexistent.

The Government Accountability Office, then called the General Accounting Office, concurred with my assessment.

Our investigations found that not one of the accounts payable files examined was 100 percent up to snuff. I was alarmed to find they all had either minor or major accounting deficiencies. If the Department of Defense had followed standard accounting practices, none of the bills should have been paid. Unfortunately, all went out the payment door.

The most glaring and persistent shortcoming observed was the near total absence of valid receiving reports in the accounts examined at the Defense Finance and Accounting Service Center in Denver, CO. A receiving report is one of the most important internal control devices. They provide written verification that the goods and services billed on an invoice were received and matched with what was ordered. In all the files examined, we found only 6 out of 200 genuine receiving reports, or what they call DD-250 forms. The rest of the files contained none. Of the six receiving reports found, all were either invalid or incorrect.

We also noticed gaping holes in another key control mechanism, remit addresses. A remit address is important because it is at the end of the money trail, where the money goes. The review found zero control over remit addresses. A total of 286 technicians in the Dallas center had authority to alter remit addresses. This was a violation of another basic internal control principle--separation of duties. A person responsible for paying bills should never be allowed to change a remit address.

On September 23, 1998, I met with Mr. Lynn to discuss the findings of my investigation. I provided him with a draft of the report. I asked him to review it and provide comment. In his response, dated 5 days later, September 28, 1998, Mr. Lynn did not challenge the findings in this report. So we have this report I have been referring to, and I asked Mr. Lynn for comment on that report. I have his letter here not challenging the findings.

I ask unanimous consent that it be printed in the Record.

In this letter, Mr. Lynn appeared to agree with all of my findings and recommendations 100 percent. That is a conclusion I make. The letter will be in the Record, so Members can read it for themselves. He said

that he was ``very troubled'' by every one of the control weaknesses cited in the report.

Mr. Lynn further stated:

There are unacceptable weaknesses in our internal control

programs.

He promised me he would be taking aggressive corrective action to improve and tighten controls. He concluded by saying:

I want you to know that I place the highest priority on

ensuring that we have the best possible protections against

fraud and wrongful payments.

I also shared my concerns with Secretary of Defense Bill Cohen in a letter dated October 5, 1998. In his response on November 16, 1998--and I have that response from Secretary Cohen here--he offered identical assurances.

I ask unanimous consent to have that letter printed in the Record.

While Secretary Cohen and Chief Financial Officer Lynn, the nominee now under consideration, both assured me over and over that they were taking steps to tighten internal controls--I am shocked to say this--they were already quietly moving in the opposite direction. They were busy pushing other policies to weaken and undermine internal financial controls.

So I want to get into that. In 1998, when Mr. Lynn was chief financial officer, something we call pay-and-chase was the Pentagon lingo used to describe the Department of Defense vendor paying process. With pay-and-chase, the Pentagon paid bills under $2,500 first, and then worried about chasing down receipts later. You get it--pay-and- chase: pay without worrying about what you are buying or the invoice and then, after you pay, go out and find some justification for the payment.

Ever wonder why there is waste in the Defense Department? Sometimes receipts were found under pay-and-chase, sometimes not. Nobody seems to care either way. This is how the Department of Defense ended up with not $2,500 here and there but with billions of dollars in what they refer to as unmatched disbursements--another big control problem with which chief financial officer Bill Lynn was thoroughly familiar.

Pay-and-chase accurately characterized the core DFAS problem I witnessed during my review of internal controls from 1997 through 1998. I saw pay-and-chase up close and personal. Pay-and-chase was not an official policy; it was an unofficial policy. It was actively practiced but not authorized by any Government regulation or laws.

As I understand it, pay-and-chase was supposed to end in October 1997

when the Department of Defense general counsel determined it was illegal. But it did not stop. Secretary Cohen wanted to, instead, legalize pay-and-chase and make it the law of the land.

On February 2, 1998, when Mr. Lynn was chief financial officer, Secretary Cohen asked the Senate for legal authority to pay bills without receipt with no dollar limit. Now, that is pretty high up in the Department that you are deciding that we ought to have a policy to pay bills without receipts, and to do it not with a $2,500 limit but with no dollar limit. This proposal was embodied in section 401 of the Defense Reform Initiative. It was touted--can you believe it--as a measure to ``streamline'' the DOD payment process.

Fortunately, the Congress rejected this absurd and misguided legislative proposal. But you know what the thinking was at the highest levels of the Defense Department. So I discussed Secretary Cohen's pay- and-chase proposal in great detail in a speech on the floor of this body on May 5, 1998. You will find that on pages S4247 through S4250. I placed, at that time, Secretary Cohen's request in the Record.

So what was Mr. Lynn's position on section 401 of Secretary Cohen's Defense Reform Initiative? I asked him this question on February 5, 2009. This is what he said: He could not ``recall'' taking a position on it but agreed it was wrong ``to pay bills without a receipt.''

This seems like a real cop-out. I responded this way:

In February 1998, you had been [chief financial officer]

for several months. This issue fell directly under your

purview. How could you possibly avoid taking a position on an

issue the Secretary of Defense was urging the Senate to

adopt? As the Chief DOD Lobbyist for Raytheon, you say it was

wrong. As the DOD [chief financial officer] back in 1998, why

didn't you know it was wrong and speak up about it [at that

time]?

My records appear to indicate that pay-and-chase continued as the unofficial policy through 1998 and eventually evolved into another more troublesome policy known as ``straight pay.'' This policy was even more dangerous for the taxpayers. The straight pay policy had much higher dollar thresholds than the old pay-and-chase plan. Believe it or not, it was a whopping half million dollars.

Straight pay was Mr. Bill Lynn's baby. This policy was personally approved by Mr. Lynn in a memorandum on December 17, 1998, and reauthorized in another memo on March 9, 1999, and possibly again later. This is that document:

Memorandum for Director, Defense Finance and Accounting

Service

Subject: Prevalidation Threshold

In a memorandum dated December 17, 1998, I authorized a

temporary $500,000 threshold on new contracts paid by the

Mechanization of Contract Administration Services (MOCAS)

system. This temporary authorization is scheduled to expire

on March 22, 1999. However, while the Defense Finance and

Accounting Service Columbus Center has made significant

improvements in the backlog of payments, we are not at the

point where we can lower the threshold to $2,500. Therefore,

the temporary threshold of $500,000 is extended for another

90 days for Columbus MOCAS payments only.

I request you continue to provide me with a monthly report

showing progress in resolving the current prevalidation

process delays. The monthly report should include your plan

to lower the threshold at the appropriate pace to reach the

goal of total prevalidation by July 2000. As we improve our

systems capabilities, we will continue to aggressively reduce

the threshold until all payments are prevalidated.

William J. Lynn.

On January 19, 1999, I addressed a letter to Mr. Lynn expressing grave concern about straight pay and requesting verification of certain facts surrounding this policy. The facts in question were provided to me anonymously by a DFAS employee. I wanted Mr. Lynn to check out all of this for me.

Prior to the implementation of straight pay, the DFAS center in Colombia, OH, had a prevalidation policy that required that all disbursements over $2,500 be matched with obligations or contracts prior to payment, which is the way it ought to be--well, no; it ought to be for every dollar, but at least over $2,500 it had to be matched. When an invoice was submitted to the center for payment, a DFAS technician searched the database for supporting obligations and receipts.

If supporting documentation could not be found, a red warning flag was supposedly run up the pole. Accounting due diligence was needed to confirm if this particular invoice was valid, a duplicate, or fraudulent payment. In theory, these red flags had to be resolved. As you would expect, in practice, that did not always happen.

Mr. Lynn's straight pay policy raised the prevalidation threshold by $497,500, up to finally a half million dollars. This allowed the DFAS technicians to make payments up to a half million dollars without a valid obligation. To cover these payments, technicians were ordered to create a bogus account known as negative unliquidated obligations. Now, that is a Harvard word, isn't it. But they called it NULO for short, the acronym. So we have these negative unobligated obligations. Bills were then paid from these bogus NULO accounts which carried negative balances.

Mr. Lynn's policy gave DFAS accountants up to 6 months to link the payments to valid supporting obligations in the accounting records. If valid supporting documentations could not be found in that timeframe, then the center was authorized to cover the payments with other available funds with no further investigation. This is how the unmatched disbursements of the Department of Defense were born and eventually built into the billions of dollars.

In my January 19, 1999, letter to Mr. Lynn, I drew some comparisons between straight pay and the case of Air Force SSgt Robert L. Miller. Now, Robert L. Miller may not be a very famous name to most people around here, and he would not be to me if I had not run into him through this investigation. So I wanted to draw a comparison between the straight pay policy and the case of this Air Force staff sergeant.

I think Mr. Lynn and others in the Pentagon at the time remember the Miller case, and remember it all too well, or at least they did at that time. I examined that case and several others just like it in great detail at a hearing before my Judiciary Subcommittee on Oversight on September 28, 1998.

As chief of vendor pay at a DFAS center, then-Staff Sergeant Miller had pursued his own unlawful versions of straight pay. Miller had full access to the Integrated Accounts Payable System. As such, Miller was able to manipulate Department of Defense systems to create obligations and invoices where none existed and generate nearly $1 million in allegedly fraudulent payments to his mother and his girlfriend. Miller was not apprehended because internal controls at DFAS were effective, the things that were under the control of Mr. Lynn; he was caught because a coworker blew the whistle on him. She was one of Miller's subordinates who had allegedly been sexually harassed by him.

At that time, I told Mr. Lynn--the same Mr. Lynn whose confirmation we are considering now--that his straight pay policy appeared to authorize DFAS accountants to do essentially what Staff Sergeant Miller did: create false bookkeeping entries to cover large payments in the absence of valid obligations. DFAS and Miller obviously had different goals, but there was a common denominator, and that common denominator was manipulation of the accounting system.

DFAS payment policies practiced on Mr. Lynn's watch left the barn door wide open to fraud and outright theft of the taxpayers' dollars.

The Government Accountability Office, which provided excellent support all the way through my investigation, fully agreed with this assessment.

There was another disturbing facet of the Miller case that I took up with Mr. Lynn. On October 19, 1995, the date that Staff Sergeant Miller became chief of vendor pay at the Dayton center--a position considered far above his rank--he was already under investigation in connection with, one, the alleged disappearance of Government checks at Castle Air Force Base and, two, allegedly directing at least eight fraudulent checks valued at $50,769 to his mother.

On October 26, 1995, just 1 week after Staff Sergeant Miller became chief of vendor pay at Dayton, an investigating officer at Castle Air Force Base made this recommendation about Miller:

Management should not place SSgt Miller in a position where

he is entrusted with funds again . . .

After this report was issued, Miller should have been removed from his position at the Dayton center immediately. But it took 2 years, until June 1997, when Miller was arrested for allegedly stealing the million dollars.

The whole Miller story, of course, is unbelievable.

In view of his problems at Castle Air Force Base, why did the DFAS center place him in charge of vendor pay? Why did DFAS keep him there after an official report indicated he could not be trusted with the money? That makes as much sense as hiring a bank robber to be the bank teller.

On September 18, 1998, I wrote another letter that I have. This is letter No. 9, which I ask unanimous consent be printed in the Record.

I wrote this letter to Mr. Lynn and asked him two questions: Who at Dayton--that means the financial center at Dayton-- had knowledge of the Castle Air Force Base report on Miller? Who in the finance center management was responsible for totally ignoring this very dangerous red warning flag? I ended my letter to Mr. Lynn this way:

Bill, the responsible person or persons in your

organization need to be held accountable for ignoring obvious

and repeated warning signals about SSGT Miller's

trustworthiness and giving him unrestricted access to your

department's money vault.

I asked for answers to these two questions by September 23, 1998. That would have been 5 days after I wrote the letter. None ever arrived, as far as I know.

When I did not get a prompt response to my January 19 letter to Mr. Lynn on straight pay, I raised those same issues with Secretary Cohen. I did that at a hearing before the Budget Committee on March 2, 1999. This is what Secretary Cohen said at the time:

There is no authorized procedure called Straight Pay.

Now, get that. You have straight pay that people talk about, and you have a Secretary of Defense saying there is no authorized procedure called straight pay.

The process described is not correct and is not authorized.

These answers do not square with the evidence I have tried to lay out.

Then, on March 9, came further explanation from Chief Financial Officer Lynn. He said essentially the same thing but with a slightly different twist:

The Straight Pay policy you refer to in your letter is not

used at our Columbus Center. . . .

There are some words left out. It goes on to say:

``Straight Pay,'' as reported to you, does not exist at the

Columbus Center.

This letter No. 10 explains that in great detail, and I ask unanimous consent to have printed in the Record letter No. 10.

I felt as though then-Secretary Cohen on the one hand and Chief Financial Officer Lynn were trying to convince me that straight pay did not exist. Their statements appear to be, even today, misleading and inaccurate.

Just because I didn't explain the policy exactly right did not mean the policy did not exist. Everything that was coming over the transom at night to me was telling me that I was on the right track.

I responded to the denials this way--and they are in this letter, my letter No. 11. I wish to quote a couple of sentences:

If this statement is indeed accurate--and ``Straight Pay''

doesn't exist, then why do I have official DFAS documents

establishing ``Straight Pay Procedures?'' Are these documents

a fake?

Are these documents I am getting a fake if they come directly from the financial center?

I later discovered another DFAS document, dated March 8, 1999, which states:

Due to concerns over the use of the term ``straight pay''

and its connotation, we must delete all references to

``straight pay'' the from the policy. . . .

Now, how does that square with what the Secretary of Defense Cohen told me? How does that square with the exchange I had with Bill Lynn, Chief Financial Officer at that time? Those things are in this document No. 12.

I ask unanimous consent to have document No. 12 printed in the Record.

I say to my colleagues, is the March 8, 1999, date on this document a coincidence or was this a bureaucratic tactic to suppress, to bury or to rename the policy to conform with the highest level of rhetoric that I heard in March of that year?

Not getting the straight story from the Pentagon, I brought the issue of straight pay to the attention of one of our colleagues now and a colleague back then, Senator Inhofe, who was chairman of the Readiness Subcommittee on Armed Services. My letter to Senator Inhofe is dated April 8, 1999, and I have that letter here as No. 13 document.

I ask unanimous consent to have document No. 13 printed in the Record.

I told my friend from Oklahoma that I considered straight pay to be ``a very dangerous and misguided policy that might violate the law.'' I also told him about the Miller case heretofore referenced. I urged Senator Inhofe to ask Secretary Cohen and Chief Financial Officer Lynn five questions on straight pay at an upcoming hearing.

Mr. Lynn attempted to clarify the Department of Defense position on straight pay in a letter dated June 18, 1999. That is document No. 14.

I ask unanimous consent to have document No. 14 printed in the Record.

In his followup letter, Mr. Lynn backed away from his assertion that straight pay did not exist. So they said it didn't exist, and now you see an assertion backing away from that. While he never used the term ``straight pay,'' he did not try to disassociate himself from the policy. His description of the policy was generally accurate, though somewhat incomplete.

I raised essentially the same question with Mr. Lynn in a recent letter, dated January 29, 2009, because of his appointment to this position of Deputy Secretary of Defense. Regrettably, he provided essentially the same answers in a letter dated February 3, 2009.

I ask unanimous consent to have printed in the Record those two letters, documents 15 and 16.

Mr. Lynn continues to defend straight pay, a policy that Secretary Cohen said didn't exist back then. He said it was necessary ``to ensure that contractors were paid on time.''

Well, can't you pay contractors on time by having invoices and all the proper documentation to write even a $1 check? That is the streamlining effect that former Secretary Cohen argued for in his failed June 2, 1998 DRI legislative initiative.

I exchanged followup Q and A on these matters with Mr. Lynn on February 5 and 6 this year, and I will include those letters in the record as well. As Chief Financial Officer at one of our biggest departments, Mr. Lynn signed the memo authorizing straight pay policy. It was his policy.

I ask unanimous consent that the followup documents be printed in the Record.

I believe this policy developed under Mr. Lynn's leadership was dangerous, misguided, and irresponsible. It demonstrated a lack of sound business judgment. It may have been inconsistent with various provisions of law. Because don't the taxpayers expect you write a check, you have a reason for writing it, you have an invoice or something that says you

owe X number of dollars? Straight pay left the taxpayers' hard-earned money vulnerable to fraud and theft, and we have had that.

I was not alone in this assessment. At my subcommittee hearing on September 28, 1998, the Government Accountability Office witness said essentially the same thing. DFAS payment policies in Mr. Lynn's watch left the door wide open to fraud.

For all these reasons, I have to say Mr. Lynn, as Chief Financial Officer, did not do everything humanly possible to protect the taxpayers' interests. When he pushed the straight pay policy and went silent on pay-and-chase, he did not act in the public interest.

As Chief Financial Officer, Mr. Lynn was also supposed to do his part to develop and integrate a finance and accounting system that would allow the Department of Defense to produce a financial statement that could earn a clean audit opinion. I know this is a massive and complex undertaking, but Mr. Lynn could have gotten the ball rolling in the right direction, even if he didn't get it under control.

I can guarantee one thing: The principle of straight pay was not conducive to the creation of an integrated accounting system. One of the first steps in that process is to link obligations to disbursements. Straight pay truncated that link and undermined integration.

Although he claimed to have launched several important reform initiatives, there appears to be little or no measurable progress toward the goal of integration on his watch. In fact, his payment policies probably took us in the wrong and opposite direction and had an opposite effect. The Department's books of account were a mess when Mr. Lynn became Chief Financial Officer, they were a mess when he left, and I have a feeling they remain a mess today, with no fix in sight.

Congress passed the Chief Financial Officers Act in 1990 in an attempt to fix the problems in accounting of Government finances in every department. Eighteen years after this legislation, the Department of Finance, as a whole, has yet to earn a clean audit.

Mr. Lynn should not be the only person held accountable for poor accounting at the Department of Defense. He was one of many individuals in a long line of Chief Financial Officers and Comptrollers who, for whatever reason, were unsuccessful in solving the financial misstep at the Defense Department. Mr. Hamre, his predecessor, used to say: ``Fixing this problem is like changing a tire on a car going at 100 miles per hour.''

I have shared some of my sentiments on Mr. Lynn's performance as Chief Financial Officer. I hope these insights are helpful to my colleagues before they vote yes or no on this nomination. If confirmed, we hope he will do everything possible to protect our national security. We hope he will protect the taxpayers' hard-earned money, and we hope he will make sure the taxpayers' money is wisely spent and, most importantly, spent according to law. We hope he will usher in a new era of financial accountability at the Department of Defense. At this point, we simply don't know what Mr. Lynn will do. I don't own that crystal ball that would be necessary to make that determination. It is all about the future, and that is relatively unknown. But we do know something about what he did in the past as the Department of Defense Chief Financial Officer.

As Chief Financial Officer, he advocated very questionable accounting practices that obviously were not in the public interest. Writing a check in any department without knowing what that check is paying for is not in the public's interest. It is not a wise expenditure of public money. We need accounting systems that account for every dollar going out, having a purpose of a service or a product that it bought. I urge my colleagues then to weigh those considerations in reaching a decision on how to vote on the Lynn nomination.

Lastly, I wish to take a moment to thank the Senate Armed Services Committee leadership, both Republican and Democratic, and their staff for their patience on this issue. I appreciate the time Chairman Levin has given me to discuss this nomination. I lay everything I have said before the Senate for consideration.

I have already sought permission to have some of these documents printed in the Record, so I don't think I have to do that.

I yield the floor.

Mr. President, I apologize to Chairman Levin. I had to leave the floor to attend a conference meeting on the stimulus bill before he finished his remarks.

I would like to rebut his remarks regarding Mr. Bill Lynn.

In regards to the Executive order on ethics, I agree President Obama is attempting to set high standards for executive branch appointees; however, giving special waivers to nominees such as Mr. Lynn water down the spirit and authority of his own Executive order. I would ask President Obama: How many more waivers will you grant in the next 4 years?

I say to Chairman Levin, you seemed to blame former Defense Secretary Cohen for the financial troubles at DOD, not Mr. Lynn. I could not disagree with you more on this issue. Chief Financial Officer Lynn was chiefly responsible for the policies and regulations governing accounting practices. His straight-pay policy went against all commonsense accounting practices. DFAS technicians should not have paid bills like they did without first confirming that the proper obligations were in the books of account.

Mr. President, I yield the floor and suggest the absence of a quorum.

Mr. President, I am pleased today to join my friend and colleague Senator Dodd in reintroducing comprehensive legislation to combat credit card abuses that have been hurting American consumers for far too long. Our bill, which is supported and cosponsored by other Senate colleagues as well, is called the Credit Card Accountability Responsibility and Disclosure Act, or CARD Act of 2009. With the economic hardships facing Americans today, from falling home prices to rising unemployment, it is more important than ever for Congress to act now to stop credit card abuses and protect American families and businesses from unfair credit card practices.

Every day the taxpayer is being asked to foot the bill for our biggest banks' irresponsible lending decisions. America's banking giants can't be allowed to dig themselves out of the hole they are in by loading up American families with unfair fees and interest charges. Even as the prime rate has plummeted, some credit card companies are hiking interest rates on millions of customers who play by the rules. In other words, the banks are punishing the very taxpayers that they have come to, hat in hand, for financial rescue. It can't be allowed to continue.

Credit card companies regularly use a host of unfair practices. They hike the interest rates of cardholders who pay on time and comply with their credit card agreements. They impose interest rates as high as 32 percent, charge interest for debt that was paid on time, and, in some cases, apply higher interest rates retroactively to existing credit card debt. They pile on excessive fees and then charge interest on those fees. And they engage in a number of other unfair practices that are burying American consumers in a mountain of debt. It's long past time to enact legislation to protect American consumers.

In December, the Federal Reserve and other bank regulators finally issued a regulation to stop some of the most egregiously unfair practices. For example, the new credit card regulation stops banks from retroactively raising interest rates on cardholders who meet their obligations, requires banks to mail credit card bills at least 21 days before the payment due date, and forces banks to more fairly apply consumer payments. It is a good first step, and long overdue. But the regulation regrettably leaves in place many blatantly unfair credit card practices that mire families in debt. It fails to stop, for example, abuses such as charging interest on debt that was paid on time, charging folks a fee simply to pay their bills, and hiking interest rates on a credit card because of a misstep on another, unrelated debt, a practice known as universal default. Legislation is needed not only to end those abusive practices--which are not prohibited by the Federal Reserve regulation--but also to provide a statutory foundation for that new regulation so that it cannot be weakened in the future.

The bill we are introducing today will not only help protect consumers and ensure their fair treatment, but it will also make certain that credit card companies willing to do the right thing are not put at a competitive disadvantage by companies continuing unfair practices.

Some argue that Congress doesn't need to ban unfair credit card practices; they contend that improved disclosure alone will empower consumers to seek out better deals. Sunlight can be a powerful disinfectant, but credit cards have become such complex financial products that even improved disclosure will frequently not be enough to curb the abuses. Some practices are so confusing that consumers can't easily understand them. Additionally, better disclosure does not always lead to greater market competition, especially when essentially an entire industry is using and benefiting from practices that unfairly hurt consumers.

In 2006, Americans used 700 million credit cards to buy about $2 trillion in

goods and services. The average family now has 5 credit cards. Credit cards are being used to pay for groceries, mortgage payments, even taxes. And they are saddling U.S. consumers, from college students to seniors, with a mountain of debt. The latest figures show that U.S. credit card debt is now approaching $1 trillion. These consumers are routinely being subjected to unfair practices that squeeze them for ever more money, sinking them further and further into debt.

Congress acted boldly and quickly to bail out the banks; now is time to do something for the consumer. Too many American families are being hurt by too many unfair credit card practices to delay action any longer. I commend Senator Dodd, Chairman of the Senate Banking Committee, for tackling credit card reform, and look forward to Congress promptly and urgently taking the steps needed to ban unfair practices that are causing so much pain and financial damage to American families.

Abusive credit card practices are a concern that I have been tracking over the past several years through the Permanent Subcommittee on Investigations, which I chair. The Subcommittee held two investigative hearings in 2007, exposing those practices, and based on those hearings, I introduced legislation--the Stop Unfair Practices in Credit Cards Act, S. 1395--to ban the outrageous credit card abuses we documented. I am pleased that Senators McCaskill, Leahy, Durbin, Bingaman, Cantwell, Whitehouse, Kohl, Brown, Kennedy, and Sanders joined as cosponsors. The Dodd-Levin bill we are introducing today incorporates almost all of S. 1395, and adds other important protections as well. It is the strongest credit card bill yet.

The Dodd-Levin bill includes, for example, the following provisions that also appeared in the bill I introduced with Senator McCaskill and others. It would:

No Interest on Debt Paid on Time. Prohibit interest charges on any portion of a credit card debt which the card holder paid on time during a grace period.

Prohibition on Universal Default. Prohibit credit card issuers from increasing interest rates on cardholders in good standing for reasons unrelated to the cardholder's behavior with respect to that card.

Apply Interest Rate Increases Only to Future Debt. Require increased interest rates to apply only to future credit card debt, and not to debt incurred prior to the increase.

No Interest on Fees. Prohibit the charging of interest on credit card transaction fees, such as late fees and over-the-limit fees.

Restrictions on Over-Limit Fees. Prohibit the charging of repeated over-limit fees for a single instance of exceeding a credit card limit.

Prompt and Fair Crediting of Card Holder Payments. Require payments to be applied first to the credit card balance with the highest rate of interest, and to minimize finance charges.

Fixed Credit Limits. Require card issuers to offer consumers the option of operating under a fixed credit limit that cannot be exceeded.

No Pay-to-Pay Fees. Prohibit charging a fee to allow a credit card holder to make a payment on a credit card debt, whether payment is by mail, telephone, electronic transfer, or otherwise.

The Dodd-Levin bill also includes important additional protections. It would:

Require issuers to lower penalty rates that have been imposed on a cardholder after 6 months if the cardholder commits no further violations.

Enhance protection against unfair and deceptive practices by giving each federal banking agency the authority to prescribe regulations governing unfair or deceptive practices by banks or savings and loan institutions.

Improve disclosure requirements by, for example, requiring issuers to provide individual consumer account information and to disclose the period of time and total interest it will take to pay off the card balance if only minimum monthly payments are made.

Protect young consumers from credit card solicitations.

To understand why these protections are needed, I would like to provide a brief overview of some of the most prevalent credit card abuses we uncovered and some of the stories that American consumers shared with us during the course of the inquiries carried out by my Permanent Subcommittee on Investigations.

The first case history we examined illustrates the fact that major credit card issuers today impose a host of fees on their cardholders, including late fees and over-the-limit fees that are not only substantial in themselves but can contribute to years of debt for families unable to immediately pay them.

Wesley Wannemacher of Lima, Ohio, testified at our March 2007 hearing. In 2001 and 2002, Mr. Wannemacher used a new credit card to pay for expenses mostly related to his wedding. He charged a total of about $3,200, which exceeded the card's credit limit by $200. He spent the next six years trying to pay off the debt, averaging payments of about $1,000 per year. As of February 2007, he'd paid about $6,300 on his $3,200 debt, but his billing statement showed he still owed $4,400.

How is it possible that a man pays $6,300 on a $3,200 credit card debt, but still owes $4,400? Here's how. On top of the $3,200 debt, Mr. Wannemacher was charged by the credit card issuer about $4,900 in interest, $1,100 in late fees, and $1,500 in over-the-limit fees. He was hit 47 times with over-limit fees, even though he went over the limit only 3 times and exceeded the limit by only $200. Altogether, these fees and the interest charges added up to $7,500, which, on top of the original $3,200 credit card debt, produced total charges to him of $10,700.

In other words, the interest charges and fees more than tripled the original $3,200 credit card debt, despite payments by the cardholder averaging $1,000 per year. Unfair? Clearly, but our investigation has shown that sky-high interest charges and fees are not uncommon in the credit card industry. While the Wannemacher account happened to be at Chase, penalty interest rates and fees are also employed by other major credit card issuers.

The week before our March hearing, Chase decided to forgive the remaining debt on the Wannemacher account, and while that was great news for the Wannemacher family, that decision didn't begin to resolve the problem of excessive credit card fees and sky-high interest rates that trap too many hard-working families in a downward spiral of debt.

These high fees are made worse by the industry-wide practice of including all fees in a consumer's outstanding balance so that they also incur interest charges. Those interest charges magnify the cost of the fees and can quickly drive a family's credit card debt far beyond the cost of their initial purchases. It is one thing for a bank to charge interest on funds lent to a consumer; charging interest on penalty fees goes too far.

A second troubling case history involves Charles McClune, a 51-year- old Michigan resident who is married with one child. Mr. McClune has a credit card account which he closed in 1998, and has been trying to pay off for more than 10 years. Due to excessive fees and interest rates, and despite paying more than four times his original credit card debt of less than $4,000, Mr. McClune still owes thousands on his credit card, with no end in sight.

Mr. McClune first opened his credit card account while in college, in 1986, at Michigan National Bank through a student-targeted credit promotion. After leaving college, the credit limit on his card was increased to $4,000. By 1993, although he had not exceeded the credit limit through purchases, Mr. McClune had missed some payments and was assessed interest and fees that pushed his balance over the $4,000 limit. From 1993 to 1996, he exceeded his limit again, on several occasions, due to interest and fee charges. He stopped making purchases on the credit card in 1995.

In 1996, Mr. McClune's credit card account was purchased by Chase Bank. In 1998, Mr. McClune asked Chase to close the account, and Chase did so. Although he never made a single purchase on his credit card while the account was with Chase, Chase repeatedly increased the interest rate on his account, including after the account was closed. In 2002, for example, his interest rate was about 21 percent; by October 2005, it had climbed to 29.99 percent where it remained for more than two years until March 2008; it then

dropped slightly to 29.24 percent. The higher interest rates were applied retroactively to Mr. McClune's closed account balance, increasing the size of his minimum payments and his overall debt.

Chase also assessed Mr. McClune repeated over-the-limit and late fees, which began at $29 and increased over time to $39 per fee. Chase cannot locate statements for Mr. McClune's account prior to February 2001, so there is no record of all the fees he has paid. The records in existence show that, since February 2001, he has paid 64 over-the-limit fees totaling $2,200. Those fees stopped after the March 2007 hearing before my Subcommittee, in which Chase promised to stop charging more than three over-the-limit fees for a single violation of a credit card limit. In addition to the 64 over-the-limit fees, since February 2001, Chase has charged Mr. McClune nearly $2,000 in late fees.

The records also show that since 2001, Mr. McClune was contacted by telephone on several occasions by Chase representatives seeking payment on his account. If he agreed to make a payment over the telephone, Chase charged him--without notifying him at the time--a fee of $12 to $15 per telephone payment. When asked about these fees, Chase told the Subcommittee that the fees were imposed, because on each occasion Mr. McClune had spoken with a ``live advisor.'' Since 2001, he has paid a total of $160 in these pay-to-pay fees.

Altogether, since 2001, Mr. McClune has paid nearly $4,400 in fees on a debt of less than $4,000. If the more than four years of missing credit card bills were available from 1996 to 2000, this fee total would be even higher. In addition, each fee was added to Mr. McClune's outstanding credit card balance, and Chase charged him interest on the fee amounts, thereby increasing his debt by thousands of additional dollars.

In February 2001, Chase records show that Mr. McClune's credit card debt totaled nearly $5,200. For the next 7 years, although he did not pay every month, Mr. McClune paid nearly $2,000 per year toward his credit card debt, but was unable to pay it off. At one time, he paid $150 every two weeks for several weeks. Those payments did not bring his debt under the $4,000 credit limit, or reduce his interest rate.

In January 2007, Mr. McClune received a letter from Chase stating that if he made his next payment on time, he would receive a $50 credit on his debt. Mr. McClune cashed out his IRA and paid $4,000 on his credit card debt. Because he made this payment in February, however, he did not receive the $50 credit for an on-time payment. Instead, he was assessed a $39 late fee, a $39 over-the-limit fee, and a $14.95 payment fee for making the $4,000 payment over the telephone.

Mr. McClune was never offered a payment plan or a reduced interest rate by Chase to help him pay down his debt. His credit card bills show that from February 2001 to June 2008, he paid Chase a total of $15,800. If the four years of missing credit card bills from 1996 to 2000 were available, his total payments would likely exceed $20,000. In June 2008, his credit card bill showed he was charged 29 percent interest and a $39 late fee on a balance of $3,300.

How could Mr. McClune pay $15,000 to $20,000 on credit card purchases of less than $4,000, and still owe $3,300? His credit card statements since 2001 show that he was socked with over $9,700 in interest charges, $2,200 in over-the-limit fees, $2,000 in late fees, and $160 in pay-to-pay fees. All of these interest charges and fees were assessed by Chase while the account was closed and without a single purchase having been made since 1995. Despite his lack of purchases and payments totaling $15,800, Chase records show that, from February 2001 until June 2008, Mr. McClune was able to reduce his credit card balance by only about $1,850.

Mr. McClune is not trying to avoid his debt. He has made years of payments on a closed credit card account that he has not used to make a purchase in 13 years. He has paid thousands and thousands of dollars-- four and possibly five times what he originally owed--in an attempt to pay off his credit card account. He is still paying. But his thousands of dollars in payments are not enough for his credit card issuer which is squeezing him for every cent it can, fair or not, for years on end.

Tragically, Mr. McClune and Mr. Wannemacher have a lot of company in their credit card experiences. The many case histories investigated by the Subcommittee show that responsible cardholders across the country are being squeezed by unfair credit card lending practices involving excessive fee and interest charges. The current regulatory regime--even with the new Federal Reserve regulation--is insufficient to prevent these ongoing credit card abuses. Legislation is badly needed.

Another galling practice featured in our March hearing involves the fact that credit card debt that is paid on time routinely accrues interest charges, and credit card bills that are paid on time and in full are routinely inflated with what I call ``trailing interest.'' Every single credit card issuer contacted by the Subcommittee engaged in both of these unfair practices which squeeze additional interest charges from responsible cardholders.

Here's how it works. Suppose a consumer who usually pays his account in full, and owes no money on December 1st, makes a lot of purchases in December, and gets a January 1 credit card bill for $5,020. That bill is due January 15. Suppose the consumer pays that bill on time, but pays $5,000 instead of the full amount owed. What do you think the consumer owes on the next bill?

If you thought the bill would be the $20 past due plus interest on the $20, you would be wrong. In fact, under industry practice today, the bill would likely be twice as much. That's because the consumer would have to pay interest, not just on the $20 that wasn't paid on time, but also on the $5,000 that was paid on time. In other words, the consumer would have to pay interest on the entire $5,020 from the first day of the new billing month, January 1, until the day the bill was paid on January 15, compounded daily. So much for a grace period! In addition, the consumer would have to pay the $20 past due, plus interest on the $20 from January 15 to January 31, again compounded daily. In this example, using an interest rate of 17.99 percent (which is the interest rate charged to Mr. Wannamacher), the $20 debt would, in one month, rack up $35 in interest charges and balloon into a debt of $55.21.

You might ask--hold on--why does the consumer have to pay any interest at all on the $5,000 that was paid on time? Why does anyone have to pay interest on the portion of a debt that was paid by the date specified in the bill--in other words, on time? The answer is, because that's how the credit card industry has operated for years, and they have gotten away with it.

There's more. You might think that once the consumer gets gouged in February, paying $55.21 on a $20 debt, and pays that bill on time and in full, without making any new purchases, that would be the end of it. But you would be wrong again. It's not over.

Even though, on February 15, the consumer paid the February bill in full and on time--all $55.21--the next bill has an additional interest charge on it, for what we call ``trailing interest.'' In this case, the trailing interest is the interest that accumulated on the $55.21 from February 1 to 15, which is the time period from the day when the bill was sent to the day when it was paid. The total is 38 cents. While some issuers will waive trailing interest if the next month's bill is less than $1, if a consumer makes a new purchase, a common industry practice is to fold the 38 cents into the end-of-month bill reflecting the new purchase.

Now 38 cents isn't much in the big scheme of things. That may be why many consumers don't notice these types of extra interest charges or try to fight them. Even if someone had questions about the amount of interest on a bill, most consumers would be hard pressed to understand how the amount was calculated, much less whether it was incorrect. But by nickel and diming tens of millions of consumer accounts, credit card issuers reap large profits. I think it is indefensible to make consumers pay interest on debt which they pay on time. It is also just plain wrong to charge trailing interest when a bill is paid on time and in full.

My Subcommittee's second hearing focused on another set of unfair credit card practices involving unfair interest

rate increases. Cardholders who had years-long records of paying their credit card bills on time, staying below their credit limits, and paying at least the minimum amount due, were nevertheless socked with substantial interest rate increases. Some saw their credit card interest rates double or even triple. At the hearing, three consumers described this experience.

Janet Hard of Freeland, Michigan, had accrued over $8,000 in debt on her Discover card. Although she made payments on time and paid at least the minimum due for over two years, Discover increased her interest rate from 18 percent to 24 percent in 2006. At the same time, Discover applied the 24 percent rate retroactively to her existing credit card debt, increasing her minimum payments and increasing the amount that went to finance charges instead of the principal debt. The result was that, despite making steady payments totaling $2,400 in twelve months and keeping her purchases to less than $100 during that same year, Janet Hard's credit card debt went down by only $350. Sky-high interest charges, inexplicably increased and unfairly applied, ate up most of her payments.

Millard Glasshof of Milwaukee, Wisconsin, a retired senior citizen on a fixed income, incurred a debt of about $5,000 on his Chase credit card, closed the account, and faithfully paid down his debt with a regular monthly payment of $119 for years. In December 2006, Chase increased his interest rate from 15 percent to 17 percent, and in February 2007, hiked it again to 27 percent. Retroactive application of the 27 percent rate to Mr. Glasshof's existing debt meant that, out of his $119 payment, about $114 went to pay finance charges and only $5 went to reducing his principal debt. Despite his making payments totaling $1,300 over twelve months, Mr. Glasshof found that, due to high interest rates and excessive fees, his credit card debt did not go down at all. Later, after the Subcommittee asked about his account, Chase suddenly lowered the interest rate to 6 percent. That meant, over a one year period, Chase had applied four different interest rates to his closed credit card account: 15 percent, 17 percent, 27 percent, and 6 percent, which shows how arbitrary those rates are.

Then there is Bonnie Rushing of Naples, Florida. For years, she had paid her Bank of America credit card on time, providing at least the minimum amount specified on her bills. Despite her record of on-time payments, in 2007, Bank of America nearly tripled her interest rate from 8 to 23 percent. The Bank said that it took this sudden action because Ms. Rushing's FICO credit score had dropped. When we looked into why it had dropped, it was apparently because she had opened Macy's and J. Jill credit cards to get discounts on purchases. Despite paying both bills on time and in full, the automated FICO system had lowered her credit rating, and Bank of America had followed suit by raising her interest rate by a factor of three. Ms. Rushing closed her account and complained to the Florida Attorney General, my Subcommittee, and her card sponsor, the American Automobile Association. Bank of America eventually restored the 8 percent rate on her closed account.

In addition to these three consumers who testified at the hearing, the Subcommittee presented case histories for five other consumers who experienced substantial interest rate increases despite complying with their credit card agreements.

I'd also like to note that, in each of these cases, the credit card issuer told our Subcommittee that the cardholder had been given a chance to opt out of the increased interest rate by closing their account and paying off their debt at the prior rate. But each of these cardholders denied receiving an opt-out notice, and when several tried to close their account and pay their debt at the prior rate, they were told they had missed the opt-out deadline and had no choice but to pay the higher rate. Our Subcommittee examined copies of the opt-out notices and found that some were filled with legal jargon, were hard to understand, and contained procedures that were hard to follow. When we asked the major credit card issuers what percentage of persons offered an opt-out actually took it, they told the Subcommittee that 90 percent did not opt out of the higher interest rate--a percentage that is contrary to all logic and strong evidence that current opt-out procedures don't work.

The case histories presented at our hearings illustrate only a small portion of the abusive credit card practices going on today. Since early 2007, the Subcommittee has received letters and emails from thousands of credit card cardholders describing unfair credit card practices and asking for help to stop them, more complaints than I have received in any investigation I've conducted in more than 25 years in Congress. The complaints stretch across all income levels, all ages, and all areas of the country. The bottom line is that these abuses have gone on for too long. In fact, these practices have been around for so many years that they have in many cases become the industry norm, and our investigation has shown that many of the practices are too entrenched, too profitable, and too immune to consumer pressure for the companies to change them on their own.

For these reasons, I urge my colleagues to support enactment of the Dodd-Levin Credit CARD Act this year. Congress has already gone to bat for the banks that engage in abusive credit card practices; it's time we go to bat for the American family.

Mr. President, I ask unanimous consent now that the Senate proceed to executive session to consider Calendar No. 14, the nomination of William Lynn to be Deputy Secretary of Defense; that there be 3 hours of debate with respect to the nomination, with 1 hour each under the control of Senator Grassley and Senator McCain or his designee, 1 hour under my control or my designee's, and that upon the use or yielding back of time, the Senate proceed to vote on confirmation of the nomination; that upon confirmation, the motion to reconsider be laid upon the table, no further motions be in order, that the President then be immediately notified of the Senate's action and the Senate resume legislative session.

Mr. President, I yield myself as much time as I utilize.

Mr. President, I urge my colleagues to join me in supporting the nomination of Bill Lynn to be Deputy Secretary of Defense. This nomination was reported to the Senate by the Armed Services Committee by voice vote on February 5, without objection or dissenting vote.

Since the time that he received his law degree from Cornell Law School and his master's degree in public affairs from the Woodrow Wilson School more than 25 years ago, Mr. Lynn has devoted his life to public service and the national defense. For 6 years, Mr. Lynn worked as the military legislative assistant and legislative counsel to Senator Ted Kennedy. In 1993, he moved to the Department of Defense, where he served first as director of program analysis and evaluation, and then as comptroller until 2001. Over the years, he has also served as a senior fellow at the National Defense University, on the professional staff at the Institute for Defense Analyses, and as an executive director of the Defense Organization Project at the Center for Strategic and International Studies.

At the end of the Clinton administration, Mr. Lynn went to the private sector for the first time, working first for DFI international and then for Raytheon Corporation, where he has served as senior vice president of government operations and strategy, overseeing the company's strategic planning and government relations. As a result of the senior positions he has held with Raytheon, Mr. Lynn has vested and unvested stock in the company, as well as salary, bonus, and retirement payments that are due now and in the future

Mr. Lynn's situation is of course not unique. Numerous nominees to senior positions in prior administrations--including nominees to serve as Secretary of Defense, Deputy Secretary of Defense, Under Secretary of Defense for Acquisition, Technology and Logistics, Secretaries of the Military Departments, and Service Acquisition Executives--have served in similar industry positions and held similar financial interests at the time of their nominations.

Over the years, the Senate Armed Services Committee has developed a strict set of ethics guidelines to address potential conflicts of interest, and the appearance of conflicts of interest, arising out of such nominations. These guidelines are tougher and more comprehensive than the rules historically imposed by the executive branch or by other congressional committees. When I say ``These guidelines'' are tougher and more comprehensive, I am referring here to the guidelines that the Senate Armed Services Committee has developed.

For example, under generally applicable executive branch ethics rules, a nominee could address actual or potential conflicts without divesting stock or other financial interests by recusing himself from matters involving his former employer--subject to a waiver by DOD ethics officials. However, the Armed Services Committee of the Senate takes a stricter approach. We require that nominees to Senate-confirmed positions divest themselves of stock, stock options, and other financial interests in companies that do business with the Department of Defense. In the case of stock options that have not yet vested, and will not vest within 90 days after confirmation, the committee insists that the nominee renounce the options--in other words, forfeiting the entire value of the stock options.

The committee's strict divestiture requirements are added to the requirements of statutory and regulatory ethics rules applicable to all executive branch officials. Our rules require senior executive branch officials to recuse themselves from decisions impacting their former employers for a period of 1 year, even if they have already divested all financial interest. When I said ``our rules'' I was referring here to the executive branch rules. As a result, nominees to senior DOD positions are subject to both divestiture and recusal requirements.

These ethics requirements have been effective. Over the 12 years that I have served as chairman or ranking member of the Armed Services Committee, I am not aware of a single instance in which a Senate- confirmed defense official who previously served in industry has even been alleged to have taken an action favoring his former employer. We may agree or disagree with some of the decisions that these senior officials have made, but conflict of interest does not appear to have been alleged in any of those disagreements.

Mr. Lynn has complied with all of the committee's requirements. In accordance with our ethics guidelines, Mr. Lynn has agreed to divest his financial interest in his former employer within 90 days of his confirmation. In order to accomplish this purpose, he has agreed to forfeit restricted stock. By the way, this stock has a value between $250,000 and $500,000. But that stock does not vest until late in 2009 or 2010. In short, Mr. Lynn has agreed to forfeit that restricted stock and thereby make a significant financial sacrifice in order to return to Government service.

In addition, Mr. Lynn will be subject to the statutory and regulatory recusal requirements that I have already discussed. These recusal requirements are subject to waiver by the senior ethics official in the Department of Defense. However, Mr. Lynn has taken an additional step by agreeing not to seek any waiver of the recusal requirements during his first year in office with regard to any matter on which he personally lobbied either Congress or the executive branch. This commitment on Mr. Lynn's part goes beyond the steps taken by previous nominees to senior positions at the Department of Defense.

The bottom line is this. Mr. Lynn, if confirmed, will be subject to ethics restrictions that are stricter than those historically imposed by the executive branch, stricter than those applied by other congressional committees, and stricter even than those applied by the Armed Services Committee to previous nominees with similar backgrounds.

On January 21, 2009, President Obama issued an Executive order on ethics commitments by executive branch personnel. This Executive order includes a provision that would, for the first time, preclude registered lobbyists from seeking or accepting employment with an agency that they had lobbied within the previous 2 years. Because Mr. Lynn was a registered lobbyist for Raytheon, he could not have been appointed Deputy Secretary of Defense without a waiver of this prohibition.

On January 23, 2009, the Director of the Office of Management and Budget approved a waiver to two paragraphs of the executive order, clearing the way for Mr. Lynn to serve.

Mr. Lynn will still be subject to the tough new postemployment restrictions in the executive order. Those would preclude him from lobbying any DOD official for 2 years after leaving office, and from lobbying any political appointee in the Obama administration for the duration of the administration, should he leave his position before the end of the administration.

This waiver was appropriate: Mr. Lynn is a career public servant whose recent history in the private sector was more of an exile than a calling. He didn't leave the Department of Defense 8 years ago because he wanted to cash in on inside connections or information, but because the Clinton administration came to an end. When Mr. Lynn hopefully passes through the doors of the Pentagon as Deputy Secretary of Defense, he will return to his roots as a public servant, put his relationships in industry behind him, and recognize that his sole duty and obligation is to his country and the national defense.

Today, the Department of Defense faces huge management challenges. The Government Accountability Office reported last year that the cost overruns on the Department's 95 largest acquisition programs alone now total almost $300 billion over the original program estimate, even though the Department has cut unit quantities and reduced performance expectations on many programs in an effort to hold down costs.

The Department's financial system remains incapable of producing timely, accurate information on which sound business decisions can be based. The Department's civilian workforce has been decimated by decades of freezes and cuts, leaving us dependent on contractors who perform many functions

that should be performed by Government personnel.

Mr. Lynn's background in senior management positions in the Department of Defense and in industry over the last two decades gives him the kind of knowledge and experience that will be useful to address these challenges. In the course of the committee's consideration of Mr. Lynn's nomination, I have spoken to him about the challenges facing the Department of Defense. I have been impressed by his grasp of the problems the Department faces and his ideas for addressing them.

Under these circumstances, and those are the circumstances I have outlined about cost overruns, we cannot afford a Deputy Secretary who is either disengaged or ineffectual. We need someone with the kind of experience and background Mr. Lynn will bring to the job. His nomination, again, was approved by the Senate Armed Services Committee without a single dissenting vote. I hope our colleagues will support this nomination.

I yield the floor.

I wanted to thank Senator McCain for his support. It is exceedingly important, and his very thoughtful statement makes a real contribution to the debate.

I yield the floor, and I suggest the absence of a quorum.

Mr. President, I yield myself 10 minutes.

Let me, first, thank Senator Grassley for his dedication to trying to change the climate around here. He has been on the forefront. I happen to disagree with him on the conclusion he has reached--or apparently reached--relative to Mr. Lynn for reasons I will go into. Nonetheless, he has been an advocate of reform and he continues to do that. I will explain why I think, in this instance, his concerns do not fit the situation.

In the first instance, when he suggested the President is changing the rules as we go along by providing a waiver to Mr. Lynn as part of the new Executive order, that is part of the Executive order.

Let's not change the rules during the game. That is part of the rule President Obama has adopted in the new Executive order. It has some very stringent requirements. Part of them are waived by the President's Office of Management and Budget--in this case, for reasons they gave. Part of the new rule is not waived, the critical postemployment prohibition that applies to Mr. Lynn. I think that for the reasons given by President Obama's Budget Director, the waiver is a legitimate one, central in this case for the reasons given.

By the way, when we talk about waivers, this is not at all unique. Mr. Lynn's situation is not in the least bit unique. Waivers have been given and provided in previous cases because senior officers have had experience in the private sector. Secretary Gates was subject to the same rule, subject to the same waiver requirement. Secretary Rumsfeld was subject to the same waiver and the same waiver requirement, as were Deputy Secretary England and Secretary Wolfowitz. This has been a common practice. I don't think anybody in those cases, or in any other case we know about, where either a waiver has been required or the waiver provision has been applicable--we know of no situation where there was a conflict of interest.

What President Obama has done is tighten the requirement. He also provided for the possibility of a waiver for part or all of the new requirement. Part of the new requirement has been waived by the new President, but to suggest that he simply has waived his new requirement is not accurate because part of it was not waived. The critical part not waived is that the new officeholder, if confirmed--Deputy Secretary Lynn--will be subject to the prohibition that he may not lobby anybody in the Government if he leaves before the administration finishes, nor may he lobby anybody in the Department of Defense for a year after he leaves. These are very strict, new requirements that are not waived in the case of Secretary Lynn. What has been waived by the administration is the other part of the Executive order. That is No. 1.

Senator Grassley has gone into a lot of technical arguments relative to Mr. Lynn when he previously served. I want to deal with that the best we can.

These events took place 7 to 10 years ago, but they don't involve ethics issues at all. They involve what Mr. Lynn said in letters relative to certain accounting practices at the Department of Defense at that time. I have reviewed these answers, and the questions were very appropriate questions asked by Senator Grassley. I commend him for asking the questions.

There were 4 separate letters to Mr. Lynn, with 30 detailed questions about practices for validating vendor payments in certain parts of the Department of Defense more than 10 years ago. Mr. Lynn has responded to every one of the letters Senator Grassley very appropriately wrote, and to each of his questions. It is my view, after reading all of the questions and the answers, that while the vendor payments that were described by Senator Grassley are real, No. 1, it is not fair to attribute those problems to Mr. Lynn. Secondly, the problems as described by Mr. Lynn and the responses he gave were accurate.

First, the description was of the pay-and-chase--the way of paying vendors. That system was illegal. You cannot pay a vendor without checking that invoice against the contract or against the receipt of the goods. That was the

problem with the pay-and-chase system. There was a failure to check the invoice that came in, the document that the goods were received and that they were proper under the contract. That system ended. It had to end; it was illegal. A new system was put into place where the vendor's bill was checked against the receipt of the goods and against the contract. That is a very different deal. It is a legal system. Unlike so-called pay-and-chase, which preceded it, which was illegal, what Senator Grassley and others have described as a straight pay system was legal. The problem is that it was a confusing name because it implied that the previous system of not checking an invoice against the receipt of the goods or the contract continued, when it did not continue. It was dramatically changed from something that was illegal to something that was legal.

For instance, Senator Grassley, when he wrote Mr. Lynn back on January 29, 2009, said:

Straight pay allowed the technician to ignore the warning

signals and make payments up to half a million dollars

without checking documentation.

That is not accurate. They had to check documentation. There were some things they could not check because the systems are deficient at the Department of Defense, including what is the original source of the money in the Defense Department's budget. Does it come from R&D or does it come from acquisition? That part, they still cannot check. Those systems have been deficient, and continue to be, but with the help of this body and hopefully real energy in the DOD, that can be corrected. We all need that.

Senator Grassley has been in the forefront of trying to get these kinds of controls in place. I commend him for that. But it is not accurate to say that straight pay, so-called, which was the followup system, allowed these payments without checking documentation. That is what Mr. Lynn disagrees with. When you look at his answers, that is the disagreement between Mr. Lynn's answers and what Senator Grassley describes as being accurate.

Part of the problem here, by the way, that Senator Grassley had is not with Mr. Lynn, it is with Secretary Cohen. Repeatedly and accurately, Senator Grassley points to the action of then-Secretary of Defense Cohen, saying he didn't do this, and Mr. Lynn didn't change it, or Secretary Cohen didn't do something, and Mr. Lynn did not disagree. The problem was with the Secretary of Defense, which is outlined by Senator Grassley, to the extent that it exists.

It is hard for me to believe Secretary Cohen would not be eligible to be Secretary of Defense again or would not be confirmed unanimously by this body. Yet the mistakes attributed to Mr. Lynn are also attributed to then-Secretary Cohen, for whom Mr. Lynn worked. But does anyone seriously suggest that if Secretary Cohen were reappointed as Secretary of Defense, we would not confirm Bill Cohen by a vote of 100 to 0?

So, Mr. President, without getting into a lot more detail--and these are incredibly complicated and detailed issues--let me summarize by saying that the difference here has been described--there is a difference over the description of a system of payment and the way in which Mr. Lynn describes it. When you look at his complete answers, it seems to me, there is a fair description of what the problem was.

Mr. President, I yield the floor.

Mr. President, I ask unanimous consent that the vote on the confirmation of the nomination of William J. Lynn occur at 5 p.m. today, with the other provisions of the previous order remaining in effect.

Mr. President, I suggest the absence of a quorum.

Mr. President, I thank the Senator from Alabama for his statement. It is a very important and

valuable statement. He is a highly valued member of the Armed Services Committee and comments coming from him will have an impact on this body. I am grateful.

I suggest the absence of a quorum.

Mr. President, have the yeas and nays been ordered?

I ask for the yeas and nays.

Mr. President, I am proud to join Senators Leahy, Specter, and Kennedy in introducing the State Secrets Protection Act of 2009. This bill establishes uniform procedures for courts to use when evaluating governmental assertions of the state secrets privilege in civil litigation. It takes an important step toward restoring the rule of law by ensuring that the privilege will be used only to protect true state secrets, and not as a means for the Government to avoid accountability for its actions.

In a democracy, the public should have the right to know what its government is doing. That should be the rule, and secrecy should be the rare exception, reserved for the very few cases in which the national security is truly at stake. Unfortunately, the Bush administration stood that presumption on its head, cloaking its actions in secrecy whenever possible and grudgingly submitting to public scrutiny only when it couldn't be avoided. The ``state secrets'' privilege was a favorite weapon in that administration's arsenal of secrecy.

None of us disputes that information may properly be withheld as a ``state secret'' when disclosing the information would cause grave damage to national security. The problem arises when the privilege is abused and invoked to shield Government wrongdoing. Indeed, that is exactly what happened the first time the Supreme Court recognized the privilege in 1953, in the case of United States v. Reynolds. The Government had been sued after a military aircraft crash killed nine people, and it invoked the ``state secrets'' privilege to shield an internal investigative report. Decades later, when the report was declassified, it revealed nothing that could fairly be characterized as a ``state secret'' but it did reveal faulty maintenance of the aircraft.

Abuses like these can be prevented, but only if the courts fulfill their responsibility to carefully review claims

of privilege. In the Reynolds case, no court actually looked at the supposedly privileged report. That simple step would have prevented the miscarriage of justice that ensued. Yet, despite the fact that courts have the acknowledged authority to order in camera review of the evidence, fewer than one third of courts have actually exercised that option when the Government has asserted the ``state secrets'' privilege. And a host of other tools available to the courts to evaluate and respond to claims of privilege have been employed inconsistently at best, resulting in a confused body of case law that preserves accountability in some cases while granting the government a ``get out of jail free'' card in others.

In the last Congress, Senators Kennedy, Specter, and Leahy introduced the State Secrets Protection Act to standardize the procedures courts use in cases where the Government asserts the ``state secrets'' privilege and to ensure adequate scrutiny of such claims. The bill was reported by the Judiciary Committee last April after extensive debate. Much of the credit for this legislation goes to Senator Kennedy, whose unfailing commitment to the rule of law inspired both the concept and the particulars of this bill. I had the honor of working with him to develop this legislation, and it is a pleasure now to cosponsor its reintroduction, with Senator Leahy as the lead sponsor.

The bill makes use of existing tools that are available to the courts when handling national security information. Perhaps the most fundamental of these is in camera review of the allegedly privileged evidence, which the bill requires. The idea here is simple: Determining what information the evidence contains is the threshold step in determining whether that evidence is privileged. This step is far too important to be left to a party with a built-in conflict of interest. Just as a court would never accept a private litigant's description of his or her evidence in lieu of the evidence itself, the court should not rely solely on the Government's description of the evidence when the Government has a clear interest in the outcome of the case.

That courts may examine sensitive national security information in camera is beyond any serious dispute. Since 1974, the Freedom of Information Act has allowed courts to engage in in camera review of any records that the Government claims are exempt from disclosure under the Act. Courts have also reviewed the most sensitive national security information in criminal cases, pursuant to the Classified Information Procedures Act. In fact, courts handle highly classified information on a regular basis. There is no legitimate justification for skipping this crucial step.

The bill also requires courts to hold in camera hearings on the question of whether the evidence is privileged. Based on the court's previous review of the evidence, the court may conduct the hearing ex parte i.e., without any participation by the plaintiff or the plaintiff's lawyers but only if the court finds that national security cannot adequately be protected through other means. For example, the court may limit attendance at the hearing to attorneys with the requisite clearances, or the court may appoint a guardian ad litem to represent the plaintiff's interests at the hearing. The bill thus preserves the adversarial process to the maximum extent consistent with protecting national security.

That's important, for at least two reasons. First, our justice system is premised on the notion of fairness, and that principle of fairness is undermined any time a party to litigation is excluded from the proceedings. But fairness isn't the only principle at stake. For all its complications and occasional inefficiencies, the adversarial process remains the best system for getting to the truth. If only one party is present at the hearing, the court is more likely to reach the wrong result it's as simple as that.

Taken together, the requirements of in camera review of the evidence and an in camera hearing ensure that the Government's claim of privilege is evaluated fairly and thoroughly. A fair, thorough review is necessary, because the bill makes absolutely clear that once evidence is found to be privileged, it cannot be disclosed, however great the plaintiff's need for the evidence may be. The interest of national security, once the court determines that interest is truly at stake, is given absolute protection.

That may mean the end of the lawsuit but it may not. As Congress recognized when it passed the Classified Information Procedures Act, courts have many tools at their disposal to move litigation forward even when some of the evidence cannot be disclosed. For example, courts can require the Government to submit non-privileged substitutes for the privileged evidence, such as summaries of the evidence, redacted versions, or admissions of certain facts. Under the bill, where the court finds that it would be feasible for the Government to craft a non-privileged substitute for privileged evidence, it may order the Government to do so. Again, however, the court can never compel the production of privileged evidence. If the Government refuses to craft a non-privileged substitute, the remedy is the same one that exists in the CIPA: the court may resolve the relevant issue of fact or law against the Government.

The bill does not allow courts to dismiss lawsuits at the pleadings stage based on a claim of ``subject matter privilege.'' As the Fourth Circuit has explained, ``subject matter privilege'' applies if the case is so pervaded with state secrets, it would be impossible to conduct the lawsuit without revealing them. Such cases undoubtedly exist. But until all of the relevant evidence is identified and the privilege determinations are made, any conclusion that a case will be pervaded with state secrets is simply a prediction. Only by proceeding through discovery and pre-trial hearings can that prediction be replaced with certainty. And this can be done without revealing a single state secret, since the bill allows privilege determinations to be made in camera and ex parte.

The bill does not change the ordinary rules of summary judgment. If a court determines, after discovery and pre-trial hearings are completed, that the key evidence is privileged and the plaintiff cannot prove his or her case using non-privileged evidence, then the Government may move for summary judgment and prevail. The bill thus retains the concept of ``subject matter privilege'' it simply requires a more thorough testing of the claim.

Nor does the bill ever put the Government to the ``Hobson's choice'' of either revealing privileged evidence or conceding the lawsuit. Under the bill, even if the plaintiff has made out a prima facie case, the court can and must dismiss the lawsuit if the Government would need to disclose privileged evidence in order to present a valid defense. The Government's interests, as well as the national security, are thus scrupulously protected.

Finally, the bill facilitates congressional oversight by requiring the executive branch to share with the Judiciary and Intelligence Committees the documents it makes available to the courts: the Government affidavit explaining why the evidence is privileged, the index of privileged evidence, and, where requested, the evidence itself. This information will help Congress monitor the Government's use of the privilege and assess the need for any further legislation.

Perhaps even more important, it will provide a means of accountability in those cases where the privilege prevents a court from ruling on allegations of Government wrongdoing. The idea of simply letting such allegations go unaddressed should be profoundly troubling to anyone who respects the rule of law yet for eight years, the response of the Bush administration was little more than a shrug. This bill rejects such a cavalier attitude toward the rule of law. The citizens of this country should never again be told that there is simply no remedy for wrongs their Government has committed. In cases where the courts cannot provide that remedy, then Congress should step in and providing the necessary information to the relevant committees of Congress will enable that to happen.

I am pleased that both the new Attorney General, Eric Holder, and the nominee for Associate Attorney General, Thomas Perrelli, have indicated a willingness to review this bill and work with us on it. I hope that it will be possible to fashion legislation that the Administration can support. The public

deserves to have confidence that the state secrets privilege is not going to be used to cover up Government misconduct. This bill provides the courts a system for resolving claims of privilege that will inspire that confidence.

A country where the Government need not answer to allegations of wrongdoing is a country that has strayed dangerously far from the rule of law. We must ensure that the ``state secrets'' privilege does not become a license for the Government to evade the laws that we pass. This bill accomplishes that goal, while simultaneously providing the strongest of protections to those items of evidence that truly qualify as state secrets. I urge all of my colleagues to support the rule of law by supporting this legislation.

Mr. President, I am pleased to join with my friend from California, Senator Feinstein, in introducing the Cluster Munitions Civilian Protection Act of 2009. This is a slightly revised version of a bill of the same name which we introduced in 2007.

Since December 3, 2008, when the Convention on Cluster Munitions opened for signature in Dublin, 96 countries have signed the treaty including Great Britain, Germany, Canada, Norway, Australia and other allies of the United States.

The treaty is the culmination of a year of negotiations, launched by Norway, among 107 governments that came together to prohibit the use of cluster munitions that cause unacceptable harm to civilians.

The Bush administration did not participate in the negotiations, which I believe was a mistake. As the Nation with the world's most powerful military we should not be on the sidelines while others are trying to protect the

lives and limbs of civilians who comprise the vast majority of war casualties today.

The Pentagon continues to insist that cluster munitions have military utility, and that the U.S. should retain the ability to use millions of cluster munitions in its arsenal which have estimated failure rates of 5 to 20 percent.

Of course, any weapon, whether cluster munitions, landmines, or even poison gas, has some military utility. But anyone who has seen the indiscriminate devastation cluster munitions cause over a wide area understands the unacceptable threat they can pose to civilians. These are not the laser guided weapons the Pentagon showed destroying their targets during the invasion of Baghdad.

There is the insidious problem of cluster munitions that fail to explode as designed and remain as active duds, like landmines, until they are triggered by whoever comes into contact with them. Often it is an unsuspecting child, or a farmer. We saw that recently in Lebanon, and in Laos people are still being killed and maimed by U.S. cluster munitions left from the Vietnam War.

Current law prohibits U.S. sales, exports and transfers of cluster munitions that have a failure rate exceeding 1 percent. That law also requires any sale, export or transfer agreement to include a requirement that the cluster munitions will be used only against military targets and not in areas where civilians are known to be present.

Last year, the Pentagon announced that it would meet the failure rate requirement for U.S. use of cluster munitions in 2018. While a step forward, I do not believe we can justify continuing to use weapons that so often fail, so often kill and injure civilians, and which many of our allies have renounced. That is not the kind of leadership the world needs and expects from the United States.

Senator Feinstein's and my bill would apply similar restrictions to the use of cluster munitions beginning immediately on the date of enactment. However, the bill does permit the President to waive the 1 percent requirement if he certifies that it is vital to protect the security of the United States. I urge the Pentagon to work with us by supporting this reasonable step.

I want to express my appreciation to all nations that have signed the treaty, and urge the Obama administration to review its policy on cluster munitions with a view toward putting the U.S. on a path to join the treaty as soon as possible. In the meantime, our legislation would go a long way toward putting the United States on that path.

There are some who dismissed the Cluster Munitions Convention as a pointless exercise, since it does not yet have the support of the United States and other major powers such as Russia, China, Pakistan, India, and Israel. These are some of the same critics of the Ottawa treaty banning antipersonnel landmines, which the U.S. and the other countries I named have also refused to sign. But that treaty has dramatically reduced the number of landmines produced, used, sold and stockpiled, and the number of mine victims has fallen sharply. Any government that contemplates using landmines today does so knowing that it will be condemned by the international community. I suspect it is only a matter of time before the same is true for cluster munitions.

It is important to note that the U.S. today has the technological ability to produce cluster munitions that would not be prohibited by the treaty. What is lacking is the political will to expend the necessary resources. There is no other excuse for continuing to use cluster munitions that cause unacceptable harm to civilians. I am committed to working in the Defense Appropriations Subcommittee to help secure the resources needed to make this new technology available.

I want to commend Senator Feinstein who has shown real passion and persistence in raising this issue and seeking every opportunity to protect civilians from these indiscriminate weapons.

Mr. President, today, I am introducing the bipartisan State Secrets Protection Act. I am pleased that Senator Kennedy, who had so much to do with developing this proposal last Congress is an original cosponsor of the bill along with Senators Specter, Feingold, Whitehouse and McCaskill. After a lengthy debate, this bill was reported by the Judiciary Committee last April.

The State secrets privilege is a common law doctrine that the Government can claim in court to prevent evidence that could harm national security from being publicly revealed. During the Bush administration, the State secrets privilege was used to avoid judicial review and skirt accountability by ending cases without consideration of the merits. It was used to stymie litigation at its very inception in cases alleging egregious Government misconduct, such as extraordinary rendition and warrantless eavesdropping on the communications of Americans.

The 2006 case of Khaled El-Masri, who was kidnapped and transported against his will to Afghanistan, where he was detained and tortured as part of the Bush administration's extraordinary rendition program, is one such example. He sued the government alleging unlawful detention and treatment. A district court judge dismissed the entire lawsuit after the Government invoked the State secrets privilege, solely on the basis of an ex parte declaration from the Director of the Central Intelligence Agency, and despite the fact that the Government had admitted that the rendition program exists. Mr. El-Masri has no other remedy. Our justice system is off limits to him, and no judge ever reviewed any of the actual evidence.

The State secrets privilege serves important goals where properly invoked. But there are serious consequences for litigants and for the American public when the privilege is used to terminate litigation alleging serious Government misconduct. For the aggrieved parties, it means that the courthouse doors are closed forever regardless of the severity of their injury. They will never have their day in court. For the American public, it means less accountability, because there will be no judicial scrutiny of improper actions of the executive, and no check or balance.

The State Secrets Protection Act will help guide the courts to balance the Government's interests in secrecy with accountability and the rights of citizens to seek judicial redress. The bill does not restrict the Government's ability to assert the privilege in appropriate cases. Rather, the bill would allow judges to look at the actual evidence the Government submits so that they, neutral judges, rather than self-interested executive branch officials, would render the ultimate decision whether the State secrets privilege should apply. This is consistent with the procedure for other privileges recognized in our courts.

We held a Committee hearing on this issue last year, and the appropriate use of this privilege remains an area of concern for me and for the cosponsors of this bill. In light of the pending cases where this privilege has been invoked, involving issues including torture, rendition and warrantless wiretapping, we can ill-afford to delay consideration of this important legislation. I hope all Senators will join us in supporting this bill.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.