[Congressional Record Volume 148, Number 106 (Tuesday, July 30, 2002)]
[Senate]
[Pages S7506-S7509]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           CREATION OF A NEW DEPARTMENT OF HOMELAND SECURITY

  Mr. BYRD. Madam President, later this week, the Senate is expected to 
begin debate on the creation of a new Department of Homeland Security. 
The debate, however, will not be about whether to create a new 
Department, but rather how to create a new Department.
  Since the President unveiled his legislative proposal 6 weeks ago, 
the Congress seems unwilling--or unable, perhaps--to resist the 
stampede moving it towards the creation of this new Department. Indeed, 
the momentum behind the idea seems almost unstoppable.
  With the level of endorsement the Congress has given to this idea, 
one would think that the proposal for a new Homeland Security 
Department had been engraved in the stone tablets that were handed down 
to Moses at Mount Sinai. But in reality, the idea was developed by four 
Presidential staffers--four--in the basement of the White House. For 
all we know, it could have been drafted on the back of a cocktail 
napkin.
  The administration did not consult with Members of Congress about the 
President's proposal. We were not asked for our input. The week the 
President unveiled his proposal to the American people, only a select 
circle of Washington insiders were even aware of its existence.
  I remember the events of that week. The administration was under fire 
about whether U.S. intelligence agencies had adequate information to 
prevent the September 11 attacks. FBI whistlerblower Coleen Rowley was 
testifying before the Senate Judiciary Committee--the same day, in 
fact, that the President addressed the Nation to announce this new 
Department. The President's poll numbers were dropping as the American 
public began to question the effectiveness of the administration's plan 
to protect our homeland.
  The Congress was taking the initiative on the homeland security 
front. Senator Lieberman's proposal to create a new Department of 
Homeland Security was slowly gaining momentum in the media. White House 
Press Secretary Ari Fleischer just a few weeks earlier criticized the 
Lieberman plan by saying that ``a [new] cabinet post doesn't solve 
anything.'' That was Mr. Fleischer talking: ``a new Cabinet post 
doesn't solve anyting.''
  This was the political environment in which the President unveiled 
his hasty proposal, and that proposal was widely reported in the media 
as helping the administration to retake the initiative in protecting 
the homeland. The President's address to the Nation helped to restore 
the confidence of the American public in the administration's efforts 
to protect the homeland, and even provided the President with a boost 
in his approval ratings.
  So the President's proposal was crafted in the bowels of the White 
House, cloaked in secrecy, and presented by an administration trying to 
regain political ground. Those are hardly the conditions that should 
inspire the Congress to rally around a Presidential proposal, but that 
is exactly what is happening.
  The Congress is coming around, rallying around a massive, massive 
governmental reorganization with little discussion about whether such a 
reorganization is desirable or even necessary. What is worse, the 
Congress is so eager to show itself united beside the administration in 
our Government's efforts to protect the homeland, that it has committed 
itself to a timetable that would allow for only minimum debate about 
the President's proposal--a plan of dubious origins--so that we can 
expedite its passage before the 1-year anniversary of the September 11 
attacks. Think of that!
  Have we all completely taken leave of our senses?
  The President is shouting ``Pass the bill! Pass the bill! Pass the 
bill.'' The administration's Cabinet Secretaries

[[Page S7507]]

are urging the adoption of the President's proposal without any 
changes. And the House of Representatives eagerly complied last week by 
passing legislation that essentially mirrors--mirrors--the President's 
plan.
  If ever there was a need for the Senate to throw a bucket of cold 
water on an overheated legislative process that is spinning out of 
control, it is now--now. But what are we doing instead?
  In the Senate, the Governmental Affairs Committee marked up its 
legislation just 5 weeks after receiving the President's legislative 
proposal. Until last week, Senators were being urged to finish 
consideration of the bill before the August recess begins this Friday. 
Think of that. The Senate would have had just 1 week to consider this 
bill, before it passed and was sent to conference before the August 
break. Considering that the committee-reported bill was only made 
available yesterday afternoon, this schedule would have given Senators 
only 4 days to read and understand what was crafted by the Governmental 
Affairs Committee. And to finish the bill within a week, Senators would 
certainly have been discouraged from offering amendments and debate 
would have been stifled.
  That was the process being urged by some for the Congress' 
``deliberative body''--the greatest deliberative body in the world.
  I certainly understand that no Senator wants to be seen as delaying 
our Government's efforts to protect our homeland. But in trying to 
avoid being labeled as obstructionists, we must not be willing to 
ignore even the most pertinent questions about the proposal--such as 
will a new Homeland Security Department actually make the public safer 
from terrorists?
  Prior to the President's address, there were at least eight different 
proposals pending before the Congress to reorganize the Government to 
better protect the homeland. Those proposals ranged from creating a 
homeland security czar to establishing an independent Homeland Security 
Office to authorizing in statute certain powers for the White House 
Office of Homeland Security. All of them have been trumped by visions 
of political advertisements attacking Members of Congress for not 
moving fast enough to create a new Homeland Security Department.
  If we are going to be totally honest here, we need to put aside 
visions of campaign ads and do some good old-fashioned thinking.
  This proposed merger constitutes the largest--the largest--Government 
restructuring in our Nation's history--bringing together pieces of 22 
agencies, involving as many as 170,000 or more Federal employees from 
perhaps over 100 bureaus and branches. A governmental reorganization of 
this size involves more than just reorganizing the Federal Government 
on a flow chart. It means physically moving the bureaus and agencies to 
a new Department, transplanting tens of thousands of people, desks, 
computers and phones, hooking them together and making them work again. 
It also means changing the culture, power structures, and internal 
dynamics of the relevant agencies and bureaus. It means dealing with 
confusion, bureaucratic conflict, and unclear lines of authority.
  As Norman Ornstein recently wrote in The Washington Post: ``This 
would be a Herculean task for even one agency. It is beyond Herculean 
for twenty-two agencies.''
  If we take this giant step, our homeland defense system will likely 
be in a state of chaos for the next few years, and amid this upheaval, 
we run the risk of creating gaps in our homeland defenses. If our 
enemies are planning to attack the seams in our defenses, this massive 
reorganization will likely provide them with some excellent 
opportunities. That helps to explain, in part, why the much touted 
reorganization that consolidated the armed forces within the Defense 
Department took place after World War II, and not immediately after the 
attack on Pearl Harbor.
  Even then, it took a number of years and a number of legislative 
efforts to get that reorganization into decent, effective working 
order.
  How long will it be before this new Homeland Security Department is 
in decent, effective working order? What if Osama bin Laden does not 
wait until we have finished restructuring? What if bin Laden is tempted 
to strike at the exact moment that these agency officials are dragging 
their desks up Pennsylvania Avenue to their new office assignments? I 
would like to see a risk analysis regarding the creation of the DHS. 
Will Americans be exposed to more risk for an unknown time period as a 
result of establishing an additional mammoth bureaucracy?
  The Brookings Institution emphasized this point in a report issued 
this month urging the Congress to move cautiously as it considers the 
creation of a new department. ``The danger,'' the report states, ``is 
that top managers will be preoccupied for months, if not years, with 
getting the reorganization right--thus giving insufficient attention to 
their real job: taking concrete action to counter the terrorist threat 
at home.''
  The Wall Street Journal agreed in an editorial this month saying that 
``The middle of a crisis, and only weeks before an election, isn't the 
optimal time to debate and pass the biggest transformation of 
Government in fifty years. The Administration has plenty else to focus 
on before rearranging the bureaucracy.''
  If the purpose of this reorganization is to increase accountability 
for our homeland defense agencies, then it doesn't make any sense to 
provide those agency chiefs with opportunities for new excuses. How 
easy would it be for the INS Commissioner to blame that agency's next 
high profile blunder on problems associated with the transition to the 
new department?
  The Congress hasn't even developed a standard to determine which 
agencies should be moved to the new department--contributing to a 
growing concern that too many agencies are being shifted around, with 
too little focus on preventing future attacks. A strong case can be 
made for consolidating the Immigration and Naturalization Service, the 
Customs Service, and other border security agencies, but the arguments 
for moving the Secret Service, for example, are hardly compelling. The 
litmus test for moving these agencies does not appear to be why, but 
rather why not.
  Another point the Congress needs to remember is that this new 
department will assume the non-homeland security related functions of 
the agencies that are transferred to it. But if we are unhappy with the 
Treasury Department's oversight of the Customs Service's efforts to 
inspect the cargo entering U.S. ports, we will probably be just as 
unhappy with the Homeland Security Department's oversight of the 
Customs Service's efforts to enforce our trade laws. Creating a new 
Department is unlikely to solve the problem of departments neglecting 
key functions of their agencies; it only alters which functions are 
likely to be neglected.
  These are basic problems which the Congress appears ready to push 
aside in order to meet the administration's call for quick action on 
this legislation. And this is not exactly an administration that has 
been open with the Congress about its plans for reorganizing the 
Federal Government.
  The administration has not issued a cost estimate of the President's 
proposed merger and insists that the transition costs will be kept to a 
minimum. Meanwhile, the Congressional Budget Office estimates that the 
President's proposed merger will cost $3 billion, with a capital ``B,'' 
over 5 years. The White House says not to worry, however, because the 
transition costs will be repaid through long-term savings. That sounds 
like a neat trick. The administration wants to create a new bureaucracy 
with a secretary, a deputy secretary, five undersecretaries, 16 
assistant secretaries, and as many as 500 senior appointees, without 
appropriating any additional money to finance the transition. The new 
managerial level alone will cost scores of millions of dollars.
  And there is the rub. Protecting our homeland requires resources and 
personnel, and they cost money. We have to pay our border patrol 
agents, our sky marshals, and our national guardsmen. But this 
administration, in trying to appease its own party base, is refusing to 
spend the money necessary to make America safer, and instead is pushing 
for this reorganization of Government. But this massive governmental 
reorganization is going to be costly. It is going to require the 
investment of real money, your money. It

[[Page S7508]]

cannot be done with the kind of creative accounting gimmicks you might 
expect to find at Halliburton Company and Harken Energy Corporation.
  When the White House makes these kinds of ridiculous comments about 
long-term savings, the Congress and the American people better get 
ready because the White House has got something up its sleeve.
  The Bush administration has already sought a blanket waiver of civil 
service law to set up a new personnel system for the new Department. 
The President's proposal would give the new Secretary broad power to 
overhaul the pay, benefits, and workplace rules for over 200,000 
Federal workers. The proposal would also exempt the new Department from 
procurement laws, such as the Competition in Contracting Act and the 
Contract Disputes Act. This sounds to me like an attempt to contract 
out homeland security-related services so that the administration can 
make the artificial claim that they are shrinking Government and 
reducing Federal costs.

  My larger concerns, however, reside deeper in the administration's 
recent comments on managing the new Department. These comments, I fear, 
indicate that the administration has something far more unpalatable up 
its sleeve.
  The President said in a pep rally for Federal workers this month that 
the administration needs the ``freedom to manage'' the new Department. 
To clarify those comments, Homeland Security Director Tom Ridge said 
that ``we need all of the flexibility we can get,'' and suggested that 
close congressional oversight could cripple the new Department's 
ability to respond to terrorism.
  That kind of a statement from an administration official ought to 
make us all very nervous.
  To make the point crystal clear, the OMB Director said last week, 
``Our adversaries are not encumbered by a lot of rules. Al-Qaida 
doesn't have a three-foot-thick code. This department is going to need 
to be nimble.'' Ha-ha. How nimble was the administration when we sought 
to pass the supplemental appropriations bill, with $3 billion more 
money for homeland security above the President's budget proposal? How 
nimble was the agency? How nimble was the administration? They held us 
up for 5 months.
  Rules like holding this new department accountable to the Congress 
and the American people, Mr. OMB Director? Al-Qaida may not be 
encumbered by constitutional limitations on its powers, but, unlike the 
OMB Director, I would scarcely argue that al-Qaida sets an example for 
this Government to follow.
  I find comments like that to be incredibly ignorant. For all of their 
blustering about how al-Qaida is determined to strike at our freedoms, 
this administration shows little appreciation for the constitutional 
doctrines and processes that have preserved those freedoms for more 
than two centuries.
  This administration has made clear its intent to ``reassert'' 
executive authority, and, to date, it has aggressively tried to curtail 
Congress's powers of oversight. The President refused to allow the 
director of the Office of Homeland Security to testify before the 
Senate Appropriations Committee and other committees, in his capacity 
as our chief homeland security official.
  The administration has been secretly planning to introduce special 
operations troops into Iraq without the consent of the Congress. We had 
better watch that one, too. That's to say nothing of this 
administration's attempts to block congressional access to information 
about executive actions.
  In reorganizing the Federal Government, the Congress has a 
responsibility to guard against attempts to also reorganize the checks 
and balances of the constitutional system. The greatest risk in moving 
too quickly is that we will grant unprecedented powers to this 
administration that would weaken our constitutional system of 
government.
  Pay attention, the Congress should be seriously concerned about the 
transfer authority that is being sought by this Administration. The 
President's proposal provides that ``not to exceed five percent'' of 
any appropriation available to the Secretary of Homeland Security in 
any fiscal year may be transferred between such appropriations, 
provided that at least 15 days' notice--that is all that Congress 
gets--15 days' notice is given to the Appropriations Committees prior 
to the transfer. No congressional approval is required after these 200 
years.
  In addition, the President's plan would authorize the Secretary of 
Homeland Security to allocate or reallocate functions and to 
``establish, consolidate, alter, or discontinue'' organizational units 
within the Department, even if established by statute, simply by 
notifying Congress ninety days in advance. Again, no congressional 
approval is required. Again, no congressional approval is required.
  These provisions make clear the administration's attempt to erode 
Congress' ``power of the purse''.
  I identified these problems in the President's proposal and wrote to 
Senator Lieberman and Senator Stevens, ranking member of the 
Appropriations Committee joined, requesting that these powers not be 
included in his proposal. What concerns me most is not those problems 
that I have identified, but rather the assaults on the legislative 
branch which still remain hidden inside the administration's proposal 
and are on track to being adopted by the Congress.
  I am not the only Senator who believes that this process is moving 
along too quickly. We are all talking about this in the privacy of our 
offices, behind the closed doors of elevators and in our hideaways. But 
we ought to come out onto the Senate floor and discuss it before the 
American people. We are rushing ahead to pass legislation, which many 
of us think is bad policy. We are rushing headlong to pass a massive 
bill that few if any of us fully understand.
  The executive branch is flexing its muscles and worrying about its 
political backside. The legislative branch needs to protect our 
constitutional system and consider what will truly protect the homeland 
and the safety of our people. We must flex our brainpower and analyze 
this idea carefully.
  We cannot be brain dead on these vital issues. The stakes are too 
important.
  Madam President, I know the administration will be out there across 
the country saying, let's pass this homeland security bill, and the 
Senate will be criticized, the Senate leader will be criticized, I will 
be criticized, other Senators will be criticized, for not having taken 
up this behemoth proposal and passed it before we close business this 
week.
  When the President signs the supplemental, he will have 30 days to 
decide whether to designate over $5.1 billion as an emergency. That is 
$5.1 billion. We so designated it. If the President designates one item 
of that $5.1 billion, he has to designate all items. I have heard that 
he is not going to sign that; I have heard that he is not going to 
release that $5.1 billion, by his signature, making it an emergency. 
The Congress provided that it had to be all or nothing.
  That is what the Senate and House did to President Clinton when he 
was President. I voted for that provision. He had to sign all or 
nothing. I voted for it. And now we have put that same provision in 
this bill.
  There is $5.1 billion available to the President upon his signing 
that as an ``emergency.'' What are we talking about? Within the $5.1 
billion is nearly $2.5 billion for homeland security. If the President 
does not make the designation ``emergency''--get this--the President 
and others in the administration will lambast the Senate for not having 
passed the homeland security bill before it goes out for the recess. 
But what the Senate did pass is a bill, the supplemental bill, which 
makes available for homeland security at least $2.5 billion of homeland 
defense funding. All the President has to do is designate it as an 
``emergency''.
  Here is what is involved in the $2.5 billion: Firefighting grants, 
$150 million; nuclear security improvements, $235 million; $100 million 
for grants to make police and fire equipment interoperable; port 
security grants, $125 million; airport security, $480 million; Coast 
Guard for port security, $373 million; Secret Service, combating 
electronic crimes, $29 million; law enforcement resources for State and 
local government--hear this--$150 million; $82 million for the FBI for 
counterterrorism and information technology

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enhancement; $54 million for urban reserve and rescue teams; $147 
million for cybersecurity improvements to protect our economy; food and 
water security, $165 million; border security, $78 million; dam and 
reservoir security, $108 million; the Customs Service, to increase 
inspections, $39 million.
  And homeland security is not the only issue, when the President makes 
the decision to do the ``emergency'' designation. If he decides not to 
make the emergency designation, he will be blocking funding for the 
following activities: Election reform, $400 million; combating AIDS, 
tuberculosis, and malaria overseas, $200 million; flood prevention and 
mitigation in response to recent flooding, $50 million; Department of 
Defense, over $1 billion for the National Guard and Reserve for 
chemical demilitarization and for classified projects; for foreign 
assistance, including embassy security and aid to Israel and disaster 
assistance to Palestinians, $437 million.
  For assistance to New York City--I see that one of the distinguished 
New York Senators has just been presiding. Let me remind her that in 
this ``emergency'' designation package, the assistance to New York City 
in response to the attacks of September 11, including funds to monitor 
the long-term health consequences of the World Trade Center attacks on 
the health of police, fire, and other first responders, and for 
recovery costs for the Securities and Exchange Commission office that 
was in the World Trade Center, there is $99 million.
  Hello, Governor of New York! Get in touch with the administration. 
Urge the President to sign his name to the package that should be 
designated ``emergency''. It should be designated emergency by the 
President so that the moneys will be released for New 
York. Firefighting suppression funding, $50 million; emergency highway 
repair funding, including funds to repair the I-40 bridge that was 
recently destroyed in Oklahoma.

  Hello, Oklahoma! Get in touch with the White House about this. 
Ninety-eight million dollars!
  Hello Oklahoma, are you listening?
  I ask for an additional 30 seconds.
  The PRESIDING OFFICER (Ms. Landrieu). Without objection, it is so 
ordered.
  Mr. BYRD. Assistance to victims of the Sierra Grande fires, $61 
million; veterans medical care--Hi there, veterans, get in touch with 
the White House. Tell the President to sign his name on that emergency 
designation package because it includes $275 million for veterans 
medical.
  Madam President, I thank all Senators for listening. I will have more 
to say, the Lord willing, in due time.
  (Applause in the Visitors' Galleries.)
  The PRESIDING OFFICER. Expressions of approval are not permitted by 
the galleries.
  Under the previous order, the time from 11:10 to 11:45 shall be under 
the control of the Republican leader or his designee. The Senator from 
Iowa.
  Mr. GRASSLEY. Madam President, it is my understanding staff arranged 
for me to have 20 minutes of that 45 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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