[Congressional Record Volume 148, Number 109 (Tuesday, September 3, 2002)]
[Senate]
[Pages S8041-S8048]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           ORDER OF PROCEDURE

  Mr. President, I ask unanimous consent that the Senate proceed to 
executive session, today, at 12:30 p.m. to consider Executive Calendar 
No. 962, Terrence McVerry, to be a United States District Judge; that 
the Senate immediately vote on confirmation of the nomination, that the 
motion to reconsider be laid on the table, the President be immediately 
notified of the Senate's action, any statements thereon be printed in 
the Record, with the preceding all occurring without any intervening 
action or debate, and that upon the disposition of the nomination, the 
Senate resume legislative session and stand in recess until 2:15 p.m.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. REID. Mr. President, as in executive session, I ask unanimous 
consent

[[Page S8042]]

that it be in order to request the yeas and nays on the nomination at 
this time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, I do, therefore, ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. GRAMM. Mr. President, whenever a bill comes to the floor from a 
committee, obviously, a lot of people have had an opportunity to have 
an input in it. It is always easy for people who do not serve on that 
committee to stand on the outside and jeer and throw rocks through the 
windows. And we are going to have a long debate. I think this bill is 
going to change dramatically. So rather than spending my time being 
critical of the product, I would like to just talk about some basic 
principles, sort of where I am coming from and what I hope can happen.
  First of all, when September 11 occurred, it sort of awakened the 
country to a threat we always knew was there. But there is nothing like 
seeing your fellow countrymen suffer to focus the mind on a challenge 
that too often we chose to pretend did not exist. I think we all 
concluded, in the wake of September 11, that our country had changed, 
perhaps forever. Part of that change had to do with coming up with an 
effective response.
  Free societies are vulnerable to terrorist attacks. There is nothing 
we can do about that since we are going to remain a free society.
  The President, who has the responsibility under the Constitution, as 
Commander in Chief, to defend the homeland, spent time and effort in 
getting together the best people, at least in his mind, that he could 
assemble, and he came up with a plan. That plan involved bringing all 
or part of 22 agencies together in a new Homeland Security Department.
  I know there are many people who have many different views, and that 
is what makes democracy strong. But I would like to begin with the 
point that the one person who has the constitutional responsibility, 
the one person who has access to more information than anybody else in 
our society, made a proposal; and that is the President's proposal.

  In my mind, under these circumstances, and in this clear and present 
danger that we face, I believe--no blank check, no guarantee we are 
going to do it just as the President wants it--we ought to bend over 
backwards to try to accommodate the man who has the constitutional 
responsibility and is ultimately going to be given the credit or the 
blame by the American people based on what happens.
  The President primarily asked for three things. One, he wanted 
flexibility in reorganizing these Departments. The flexibility wanted 
was substantial, but it was not without precedent. We had given similar 
flexibility to the Department of Energy, which was created from other 
Departments. We had given similar flexibility to the Department of 
Education, which was created in part by transfer and part by creation. 
Yet, remarkably, the bill that is before us denies the President the 
same flexibility that the President had when the Departments of Energy 
and Education were created.
  Now, energy is important, especially if you are in an energy crisis. 
Education is always important. But is there anybody who really believes 
the crisis we face is so unimportant that President Bush should not 
have the same powers in setting up the Department of Homeland Security 
that the President had in setting up the Department of Energy? I do not 
think many people take that position, but we have a problem in that the 
bill before us takes that position. In my mind, that has to be fixed.
  I understand reasonable people with the same facts are prone to 
disagree, but, as I look at this first request of the President, that 
he be given enhanced flexibility, not dissimilar to what we had with 
the Department of Energy and the Department of Education, to me, that 
is pretty close to a no-brainer that the President ought to have that 
flexibility.
  The second request is that the President have the power, based on 
national security, to override labor agreements. Now, that sounds like 
a pretty dramatic power. In fact, the way opponents normally talk about 
it, it is basically giving the President the power to eliminate 
collective bargaining. In my mind, nothing could be further from the 
truth. All this power does is gives the President the power to set 
aside elements of collective bargaining when national security is 
involved.
  Interestingly enough, the power the President sought he has under 
existing law. The President was simply asking for an affirmation of 
existing power. But, remarkably, in the wake of 9/11, not only did the 
committee not reaffirm this existing power but they took power away 
from the President in saying that whereas today, whereas on September 
11, or September 10, the President could have waived collective 
bargaining agreements for national security purposes, under this bill 
he would not be able to do that. But the prohibition would apply only 
to the Department of Homeland Security.
  I submit there is always room for disagreement, there is always room 
for some negotiation in trying to understand what other people think, 
but, to me, it is incomprehensible and absolutely unacceptable that we 
should be setting up a Department of Homeland Security and at the same 
time take away power the President has under existing law to take 
action based on national security concerns.
  The provision taking away the President's national security powers 
simply does not fit in this bill. I do not think it fits in any bill. 
But in a bill that is trying to respond to 9/11, it clearly does not 
fit and cannot be accepted and will never be accepted. Clearly, that is 
something that has to be fixed.
  Let me give you some examples. We currently have labor contracts 
negotiated with Government employee labor unions that prohibit the 
stationing of Border Patrol in areas that do not have laundries, that 
do not have access to personal services. There is a long list of things 
that were written.
  Now, in normal circumstances, where you have people trying to lead a 
quality life like everybody else, you can understand those things. The 
ability to take your clothes to the drycleaners is pretty important 
when you are wearing uniforms that require drycleaning. But in an 
emergency circumstance, do we really not want to have the power to 
waive that collective bargaining agreement?

  Another thing that has constantly driven me crazy, being in a border 
State--a huge border--with Mexico, is that trying to get the Border 
Patrol, INS, and Customs all to work together, trying to get them to 
cross-train so that people can perform various functions, is like 
trying to get them to use the same toothbrush. In fact, President 
Clinton's National Security Adviser talked about his frustration in 
dealing with the INS and Customs and the unwillingness of one agency to 
open the trunk in working with another agency.
  Now, look, I understand work rules. I admit I am probably less 
sympathetic to them than most other people. I think if you sign onto a 
job, whatever the job requires, within the limits of human dignity, you 
ought to be willing to do. I don't understand negotiating about who 
pushes what button or who opens what trunk. To me that seems silly. I 
am not very sympathetic to it. But when we are dealing with national 
security concerns, when the lives of our fellow citizens are at stake, 
we cannot put up with that business.
  So all the President is asking for is the power to set aside those 
kinds of agreements in dealing with national security. It is not a 
question of being anti-union, it is a question of having concerns that 
override collective bargaining. We don't have collective bargaining for 
the Marines because they are about very serious, life-threatening 
circumstances and tasks. In dealing with homeland security, we are 
dealing with exactly those kinds of circumstances.
  Finally, the President's proposal asks for personnel flexibility--the 
ability to put the right person in the right position at the right 
time, without waiting for the normal 6 months, and the right to 
transfer people who are incompetent, and the right to fire people.
  I understand collective bargaining, and I understand writing in 
requirements of how the personnel system

[[Page S8043]]

works. I understand trying to prevent people from being arbitrary and 
capricious. But the bottom line is, if we are trying to fight and win 
this war on terrorism, we need to have the ability to hire, fire, and 
promote based on merit in those agencies that are involved. I will give 
you two examples.
  A woman FBI agent sends a cable to the home office basically saying 
that maybe we ought to be concerned about people with terrorist 
connections who are taking flight training and are focusing on flying 
planes but not landing them. That actually happened. In the whole 
process of trying to absorb massive amounts of information with 
conflicting jurisdiction, nobody ever responded to it. But don't you 
think we ought to promote that woman? Don't you think we ought to 
promote her out of grade and reward her--not only to reward the fact 
that she was paying attention to her business, she was alert to a 
potential problem that, God knows, we wish we had been alerted to, and 
we want to send a signal to others in the FBI and other agencies that 
if you are doing a good job, we are going to reward you.
  On the negative side--and I don't want to belabor it because I don't 
know the circumstances and I am not at INS. I don't know the individual 
life stories of the people involved or the problems they had or the 
bureaucracy they faced. But, look, when we granted visas to terrorists 
who had their picture on every television screen in the world, whose 
names are on the front page of every newspaper in America because they 
had killed over 3,000 of our citizens, and then weeks later we 
processed a visa request for these brutal terrorist/murderers, maybe 
somebody should have been fired. Maybe somebody should have been 
transferred.

  I know that theoretically in the Federal Government you can fire 
people, but the reality is that it is virtually impossible. As 
everybody in the Senate knows, fewer than 1 percent of people who are 
found to be doing totally unsatisfactory work end up being fired in the 
Federal Government, and 80 percent of them, because of the momentum of 
the seniority system, end up getting raises after they have been deemed 
to be doing failing work.
  In the Department of Homeland Security, where we are dealing with 
people's lives, we need the flexibility to promote and reward. And, 
quite frankly, despite all the protests from the labor unions, every 
time I talk to people in Government agencies who would be affected, 
they like this flexibility, they like rewarding merit, they believe 
they would benefit and thrive in this system.
  I will conclude by simply saying this: The President is not saying do 
it my way or forget it. I think the President has been and will be 
flexible in terms of trying to work out an agreement. I think there is 
room for flexibility on the whole funding issue and reprogramming and 
the rights of the legislative branch. But when you get down to the 
ability to reorganize, the President is not going to accept a bill that 
gives him less power in the name of national security than the 
President had when we created the Department of Energy. He is not going 
to do that, and he should not do it. There is no possibility that the 
President is going to accept a bill that takes away emergency powers 
that he has today to waive collective bargaining agreements in a bill 
that claims to enhance the President's power to deal with national 
security.
  Finally, we gave flexibility on personnel under the FAA 
reorganization bill, under the IRS reorganization bill, and under the 
Transportation Security Administration reorganization bill. Yet in a 
bill trying to deal with homeland security, do we think it is less 
important than the FAA, or the IRS, or the Transportation Security 
Administration? Well, obviously, if you look at this bill, we do. So I 
don't think it is productive for this to degenerate into any kind of 
partisan battle.
  But the problem is, this is a bill that does not do the job. This is 
a bill that we would be better off--if it were adopted in its current 
form--not having. The President is not going to accept this bill, and I 
think we have reached the moment on a critical issue where we need 
simply to promote a bipartisan solution, work out these agreements, 
give the President these three powers he wants, work something out on 
the appropriations issue for enhanced reprogramming and a partnership, 
and preserve the ability of Congress to control the purse.
  I think the President, for every one problem he will have with money, 
will have 100 problems dealing with reorganization and personnel 
flexibility.
  I am hopeful we can work something out. We are going to be offering a 
series of amendments. I assume at the end we will offer a substitute. I 
hope that substitute will be broadly supported. Senator Miller and I, 
along with almost 40 of our colleagues, have introduced the President's 
bill because we wanted to try to promote a compromise moving in the 
President's direction.
  I thank Senator Thompson for his leadership on this issue. As I have 
followed what he has had to say, there is not any issue on which I have 
a substantive disagreement with him. I look forward to following his 
leadership as we work out these three key issues, but these issues have 
to be dealt with. There cannot be a bill that does not give the 
President reorganization flexibility, the ability to override 
collective bargaining agreements in the name of national security and 
personnel flexibility. Denying these three powers simply is a denial of 
common sense and a denial of the crisis as we all know it exists, and 
the bill has to be changed.
  I yield the floor.
  The PRESIDING OFFICER (Mrs. Carnahan). The Senator from Tennessee.
  Mr. THOMPSON. Madam President, I ask unanimous consent that the time 
used by the Senator from Texas not be charged to either side.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. THOMPSON. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. THOMPSON. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. THOMPSON. Madam President, I was in error when I asked that the 
time of the Senator from Texas not be charged against anyone. I think 
that should be charged against the time of Senator Lieberman and 
myself. I ask unanimous consent that be done.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. THOMPSON. Madam President, I am getting ready to suggest the 
absence of a quorum again, and I ask unanimous consent that the quorum 
call we are about to go into not be charged against either side.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. THOMPSON. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BYRD. Madam President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BYRD. Madam President, I thank the majority leader for the 
courtesies which have been extended to all Senators, myself in 
particular because I am the one I know most about, naturally, in 
listening to our concerns with respect to the legislation that is 
before the Senate.
  I am glad Members of this body had the opportunity during the August 
recess to study the House bill, to study the substitute that will be 
posed eventually by the distinguished Senator from Connecticut, Mr. 
Lieberman, which substitute, of course, is the product of his very 
great committee and the product in particular of the ranking member, 
Mr. Thompson of Tennessee, on that committee.
  I proceed today with a great deal of humility, realizing that I am 
not a member of the committee. I have no particular reason, other than 
the fact that I am 1 of 100 Senators who speaks on this matter today 
with no particular insight from the standpoint of being on the 
committee which has looked at this legislation. I have read the 
newspapers. I have read and heard a great deal about what the 
administration wants. I have done the best I could during the August 
break, in addition to several other responsibilities I had, to read the 
House legislation and the substitute which will be proposed by Mr. 
Lieberman.

[[Page S8044]]

  So I say to the members of the committee, and to Mr. Lieberman and to 
Mr. Thompson in particular, I respect the work they have done.
  I believe one of the two Senators today said there have been 18 
hearings of the committee. I was not present at those hearings.
  I respect the work of the committee. I have been a Member of Congress 
50 years. I know something about committees. I know something about 
committee hearings. I know something about the time and the energy that 
are put into hearings by the Members, as well as by the staffs of the 
members of the committee and the personal staffs of the Senators. I 
approach this subject today somewhat timidly because I am not on the 
committee but I am a Senator and I have been very concerned. The reason 
I am here today is that I am very concerned about how we go about 
creating the Department of Homeland Security.
  First of all, I am very much for a Department of Homeland Security, 
and I think I made that position clear many weeks ago. I had some 
concerns with respect to the proposal the House sent over after 2 days 
of debate on the House floor.
  I had some concerns about the appropriations process. Senator 
Stevens, distinguished ranking member of the Appropriations Committee, 
and I have joined in informing Mr. Lieberman and Mr. Thompson of our 
concerns. Mr. Stevens is a member of Mr. Lieberman's committee. We 
informed them of our concerns in writing. They have taken our concerns, 
studied them, and for the most part have dealt with our concerns. So 
from this moment on, I will have no more to say about the 
appropriations process because the Lieberman bill, in great measure, 
puts that thing right.
  I have other concerns. I am very concerned President Bush has been 
promoting his Homeland Security by citing the National Security Act of 
1947 as a role model for Government reorganization.
  In his weekly radio address on June 8, for example, President Bush 
stated that he was proposing ``the most extensive reorganization of the 
federal government since the 1940s. During his presidency, Harry Truman 
recognized that our nation's fragmented defenses had to be reorganized 
to win the Cold War. He proposed uniting our military forces under a 
single Department of Defense, and creating the National Security 
Council to bring together defense, intelligence, and diplomacy.''
  President Bush is correct to hold up the National Security Act as a 
role model. Here it is. It is the perfect example of why we must move 
slowly and carefully in reorganizing our government and avoid acting 
too swiftly or blindly. A look at the history of the unification of the 
armed forces reveals that government reorganization is not as quick, or 
as simple and easy as President Bush may have implied.
  Enactment of legislation providing for the unification of the 
military did not occur in a matter of weeks, nor even months, but 
years.
  On November 3, 1943, the Army Chief of Staff, General George C. 
Marshall, broke with long-standing War Department anti-unification 
policy and submitted to the Joint Chiefs of Staff a proposal favoring a 
single Department of War. In his book, The Politics of Military 
Unification, Demetrios Caraley writes: ``The conflict over military 
unification that eventually led to the passage of the National Security 
Act of 1947 can be said to have begun November 3, 1943.'' In other 
words, this was the beginning of what would become a four-year struggle 
in the effort to reorganize our government by unifying our armed 
services.
  In April 1944, the War Department submitted a unification proposal to 
the House Select Committee on Postwar Military Policy. That same month, 
the Committee began two months of hearings on the creation of a single 
department of the armed forces. The committee concluded that the time 
was inappropriate for legislation on a single department, strongly 
implying that such a reorganization might be a distraction from the war 
effort, and, therefore, should wait until the war was over. The 
Committee report reads in part:

       The committee feels that many lessons are being learned in 
     the war, and that many more lessons will be learned before 
     the shooting stops, and that before any final pattern for a 
     reorganization of the services should be acted upon, Congress 
     should have the benefit of the wise judgment and experience 
     of many commanders in the field.

  I point out that, more than two full years had elapsed since General 
Marshall's proposal, and there had been considerable congressional and 
administrative activity, including a number of studies, a number of 
alternate proposals, and a number of hearings, yet Congress at this 
stage was nowhere close to approving the reorganization of our 
government.
  On June 15, 1946: President Truman, in a letter to congressional 
leaders, recommended a 12-point program for unification. But 
considerable opposition to reorganization still remained, and as a 
result, President Truman eventually requested that the Senate drop 
consideration of military unification until the next session of 
Congress.
  The next year, February 26, 1947, in a communication to congressional 
leaders, and I was a member of the West Virginia state legislature, 
President Truman submitted a unification proposal, which became the 
National Security Act of 1947, that had been drafted by representatives 
of the armed forces and had been approved by the Secretaries of War and 
Navy, and the Joint Chiefs of Staff.
  Did you catch that? President Truman submitted a proposal that had 
been drafted, not by four people in secrecy in the basement of the 
White House, but by representatives of the armed forces and had been 
approved by the Secretaries of War and Navy, and the Joint Chiefs of 
Staff.
  What a difference in Administrations! What a difference in attitudes 
toward government!
  After President Truman's proposal was introduced in both houses of 
Congress, the Senate Committee on Armed Services began hearings that 
lasted for ten weeks. The House Committee on Expenditures in the 
Executive Departments also conducted hearings on the proposal that 
lasted from April 2 to July 1, 1947.
  Meanwhile, on May 20, 1947, the Senate Committee on Armed Services 
commenced an executive session ``to review the testimony received in 
extensive hearings on the bill and to consider proposed amendments.''
  Let me say that again: The Senate Committee on Armed Services 
commenced an executive session--whoa--``to review the testimony 
received in extensive hearings on the bill and to consider proposed 
amendments.''
  Again, I call attention to how slowly, how carefully, and how 
deliberately Congress was proceeding on this important issue involving 
the national security of our country. Senators can read the report of 
the Senate Committee on Armed Services on S. 758 which stressed this 
very point. The report reads, in part: ``In determining the most 
suitable organization for national security no effort has been spared 
to uncover past mistakes and shortcomings. During the hearings . . . 
all phases of each plan were exhaustively examined.''
  Let me repeat that. The Senate Committee reported that ``no effort 
has been spared to uncover past mistakes and shortcomings'' and ``all 
phases of each plan were exhaustively examined.'' The committee was 
pointing out that Congress knew what it must do. That there would be no 
rush to judgment. They were not about to be stampeded into unwise 
legislation. There was no herd mentality there. They knew that what 
they were doing would help decide the fate of American government and 
American society for decades to come. They knew that, as the Nation's 
lawmakers--and that is what we are, the Nation's lawmakers--they had to 
be careful and deliberate because so much was at stake.
  On July 9, 1947, after debate and amendments, the Senate finally 
approved the National Security Act.
  The House of Representatives was just as careful and deliberate in 
considering this reorganization of our Government. The reason, the 
House Committee on Expenditures in the Executive Departments pointed 
out in its report, was that ``both civilian and service witnesses 
advised against a too-hurried consideration of the bill.''
  Finally, on July 19, 1947, the House began considering H.R. 4214, the 
committees's version of the President's draft bill. It approved the 
measure only

[[Page S8045]]

after considering 17 amendments. Nine of the amendments were approved.
  On July 24, 1947, after five meetings, a conference committee 
reported a compromise version of S. 758 and so The House adopted the 
conference report.
  Two days later, President Truman signed the National Security Act 
into law, one half year after the legislation had been introduced, and 
four years since General Marshall recommended unification of our armed 
forces.
  I realize we do not have 4 years to act in this situation. I realize 
the situations are different in many ways; the circumstances are 
different in many ways. I know that. But this is a government 
reorganization that President Bush holds up as the role model for the 
present government reorganization which we are considering. The problem 
is that this administration envisions Congress approving in just a few 
weeks a massive reorganization of the Federal Government that involves 
22 agencies and 170,000 Federal workers.
  The administration should stop reading ``Gulliver's Travels'' and 
start reading some history, especially the history behind the 
unification of our Armed Forces. If it is going to use that as the role 
model, the National Security Act--the reorganization of our military, 
the establishment of a Department of Defense--we should read the 
history behind the unification of these Armed Forces. It is a 
cautionary tale, and one that the administration and we would do well 
to remember.
  I am very concerned that 30 years from now, Congress will be 
struggling to rectify the problems that we will be creating with hasty, 
ill-considered enactment of the Department of Homeland Security. There 
was all this rush, there was all this hue and cry that we ought to get 
this done before Congress goes out for the August recess. The House 
passed this bill after 2 days of floor debate and took off a week 
earlier than the Senate did. Then there was the idea we ought to do 
this by September 11.
  What we need to do is to develop a product that works. We need to 
have legislation enacted by Congress and signed by the President that 
is right, not something that is hurriedly passed just to conform with 
an artificial deadline on the calendar. How much harm could be done in 
the meantime can be imagined. I am referring to damage to the rights 
and the liberties that we hold most dear: civil rights, labor rights, 
labor protection, civil liberties of all Americans. I am talking about 
damage to our constitutional process. We can inflict damage upon the 
constitutional process if we act in haste, and that damage perhaps 
cannot be and will not be rectified for years to come. We must not 
inflict damage on our constitutional processes.
  President Bush's proposed Department of Homeland Security is an 
enormous grant of power to the executive branch. I hope that everyone 
who hears me will understand that--an enormous grant of power to the 
executive branch. It constitutes control of 170,000 Federal workers and 
a huge piece of the Federal budget. It will mean a major change in the 
governmental infrastructure of our Nation.
  This may be for keeps. This may be the infrastructure that will last 
through the lifetimes of at least some of us. And we cannot and must 
not close our eyes to the threats that are involved here, by well-
intentioned people I am sure, the threats to the constitutional 
processes that have guided this Nation for 215 years and should 
continue to guide it in the future.
  This Constitution is good enough to guide us through whatever 
emergencies may confront this country. We must not cede this power, 
power that the administration wants but not necessarily needs--but the 
administration wants it. Let's stop, look, and listen and be careful 
what we are doing.
  I wonder how many out of 100 Senators took the time during the recess 
to read the House bill, to read the substitute that is about to be 
proposed by Mr. Lieberman and Mr. Thompson. How many Senators took the 
time to read and to ponder what we are about to do? I did. I am not an 
expert on the House bill or the substitute by Mr. Lieberman. I have not 
put as much time, naturally, by any means, in my study of the Lieberman 
substitute as has he or his counterpart or the members of that 
committee.

  So the members of that committee knew very well what was in the bill. 
But how many other Senators took the time to sit down and read and mark 
and underline and think about the words, the phrases, the sentences 
that are included in this substitute and in the underlying bill?
  Let Senators remember that once we pass a bill in the Senate, which 
we must and which we will, then we in the Senate--half of the 
legislative branch, this half, except for the committee conferees--will 
be out of it. I don't bemoan the fact that I will be out of it, but 
most of the Senate will be out of it. We will have said our piece. We 
will have made our press releases. And we will have had an opportunity 
to offer amendments.
  But how many of us are prepared to offer amendments? How many of us 
have read this legislation? How many in the media know what we are 
talking about and what is in this legislation? The people out there, 
280 million of them, who are represented by 100 Senators, do not have 
the slightest idea what is encompassed in this legislation. They have 
heard the President on the campaign trail talking about this bill: pass 
it, pass it, pass it. They have heard others in the administration. I 
don't have any criticism of that. They naturally want this bill passed.
  We need to look at it. We Senators have a duty to study it and to 
take the time and, if necessary, offer amendments where we believe 
amendments should be offered and the Senate must be given the 
opportunity to work its will. And it will work its will.
  But I am concerned. That is where I am coming from, and I am sure 
there are other Senators who would be equally concerned if they read 
these bills. But they have been busy. Senators are very busy people. I 
know that.
  In a recent column, David Broder wisely pointed out that because the 
mission of the Department of Homeland Security ``is so large and its 
scale is so vast, it is worth taking the time to get it right.''
  That is David Broder, and he got it right when he said that. I will 
continue with his words.

       It is worth taking the time to get it right. Having the 
     bill on the President's desk by the symbolic first 
     anniversary of the terrorist attacks is much less vital than 
     making the design as careful as it can be.

  Hallelujah. That was David Broder. He is right.
  Now let me read what he said without my editorial comment. He said: . 
. . the mission of the Department of Homeland Security ``is so large 
and its scale is so vast, it is worth taking the time to get it right. 
Having the bill on the president's desk by the symbolic first 
anniversary of the terrorist attacks is much less vital when making the 
design as careful as it can be.''
  I remind my colleagues that once the genie is out of the bottle, it 
is gone. It would be difficult to get it back into the bottle. This 
bill is the best, if not the last, opportunity for Congress to make 
sure that we are not unleashing a genie, a very dangerous genie.
  I realize it is not easy to go against the administration for some of 
my colleagues, in an election year especially. But our duty to our 
country and to future generations compels us to do no less. And I 
intend to do no less than stand on my feet and speak my thoughts. This 
is what separates the men from the boys, the women from the girls, and 
the statesmen from the politicians.
  Madam President, how much time do I have remaining?
  What is the time situation with respect to the upcoming vote?
  The PRESIDING OFFICER. We are going into executive session at 12:30.
  Mr. BYRD. I thank the Presiding Officer.
  Madam President, I hope Senators will take a look at this morning's 
Washington Post. On the front page there is a column by Gregg Schneider 
and Sara Kehaulani Goo, Washington Post staff writers. The headline 
reads as follows:

       Twin Missions Overwhelmed TSA. Airport Agency Strives to 
     Create Self, Stop Terror.

  This story that I am about to take excerpts from tells exactly why we 
ought to take time and do this right.
  I read from the column:

       When a gunman opened fire at a Los Angeles International 
     Airport ticket counter on July 4, the nation's new agency in 
     charge of airport security got its first chance to swing into 
     action.

[[Page S8046]]

       Instead, it claimed the shooting was outside its 
     jurisdiction.
       After bullets sprayed across the crowded holiday terminal, 
     killing three, the agency's director at the time, John W. 
     Magaw, looked on helplessly as his own spokesmen dismissed 
     the incident as a matter for local police and the FBI. 
     ``That's nuts. That is nuts,'' Magaw said later.
       But by that holiday, with the nation on edge about a 
     terrorist attack, Magaw had lost control of the 
     Transportation Security Administration. He had run the high-
     profile, multibillion-dollar agency far astray from what 
     Congress and the Bush administration said they wanted, 
     alienating everyone from local airport operators to 
     commercial airline pilots.

  Now get this. I continue to read:

       The agency simply couldn't keep up with the twin demands of 
     creating itself and devising a system of stopping terrorists.

  There you are in a nutshell. That is the problem.

       Internally, there was tension over the TSA's mission, with 
     a growing core of leaders steeped in law enforcement at odds 
     with political forces demanding customer service. Magaw and 
     his deputies clashed with key members of Congress and the 
     White House over budgets and left airport managers around the 
     country feeling shut out.
       The fact that the TSA was flat-footed on the day of the 
     most violent attack on U.S. aviation since Sept. 11 
     underscores how, after nearly a year of building a new 
     federal agency to take over airport security, few broad 
     changes have taken place.

  There you are. That is our problem. We are about to create a new 
department of homeland security, which I am for. I will vote for that. 
Then we are about to create 6 directors, and we are about to set up a 
superstructure. In this bill, once we pass the package and send it down 
to the President, we are going to say there it is. You take it. It is 
yours. Then the administration will have the colossal task of 
transitioning, as I read it, 22 agencies.
  I was talking with Senator Lieberman this morning. I was told that 
more likely there will be 28 agencies and offices. There you have it, 
Mr. Administration. It is yours. That is what Congress is about to do. 
It is yours.
  Can one imagine the chaos that is going to occur when all of these 
agencies are supposed to be transitioned into the department of 
security within 13 months, and the people within them. One-hundred and 
seventy thousand Federal employees will have to become accustomed to a 
new culture, once they are transitioned. They will have to move their 
desks, their computers, and their telephones. They will have to get 
acquainted with new associates. They will have new and different 
missions.
  When we talk about the 1947 role model of the National Security Act, 
we are talking about military branches that had the same mission, 
overall. Those were not different missions. These people are going to 
be put into a brand spanking new, polished-chrome metal piece of toy to 
guard the homeland, and to guard the people. All of these people put 
into one agency are going to be concerned about their pay scales, their 
worker rights, and their privacy rights--all of those things. There 
they will be. All yours, Mr. President. Here it is. You asked for it. 
Here it is now so Congress can stand on the sidelines for the next 13 
months.
  I am saying no. Congress should not stand on the sidelines for the 
next 13 months. We have a duty under the Constitution to exercise 
oversight and to see that the agencies are properly brought into the 
six directories.
  I am thinking of the same directorates the committee recommended, the 
same superstructure. I am saying that is fine. But now, when it comes 
to bringing in the 22 agencies or the 28 agencies or the 30 agencies or 
the 25 agencies--I have heard all of these numbers; we do not even know 
the number of agencies--when it comes to fusing those, what are the 
criteria for this agency or that agency or some other agency or some 
part of that agency? What are the criteria by which somebody is going 
to have to be guided in bringing these agencies into the superstructure 
and making them part of the directorates, which are parts of the new 
Department of Homeland Security?
  Who knows? I have not seen anything in my reading, anything in 
writing. I have not heard anything in any way by which these 22 
agencies--I will say 28, since Mr. Lieberman has counted them. What are 
the criteria and what is going to happen?
  Look at what the Post is reporting happened to the brandnew, shiny 
transportation agency, the TSA. And here we are talking about 22 or 25 
or 28 or 30 more agencies, putting them all in. Here, Mr. President. 
Here is what you asked for. Here is the bill. You take it. That is what 
we are about to do, and I do not think we should do it.
  I think Congress should stay in the mix, should continue to exercise 
its oversight, its judgment, give its advice, give its consent, and 
vote up or down as we go along on the procedure.
  Now, I am going to offer an amendment at some point. I may offer 
several amendments, but the first amendment I offer will deal only with 
title I, only with title I. But my concern is that Congress has a 
responsibility, it has a duty to which it must face up, and that duty 
is to keep a hand on this, to maintain oversight. And I think these 22 
agencies--I will quit using 22; I am going to use Joe Lieberman's 
figure, 28--these 28 agencies should be phased in, in an orderly 
process that gives the Congress the time, as we go along, to look at 
what the administration--through this new Secretary of Homeland 
Security, through his recommendations--recommendations are.
  Congress should not just hand this thing over lock, stock, and 
barrel, to this administration, or any other administration, and say: 
Here it is. You take it.
  So here, in microcosm, is the problem. And we are reading about it 
right here in this Washington Post of today. I won't read the whole 
column right now. I may refer to it again later.
  But let me proceed now by saying that the homeland security 
legislation that we will be considering this week has become something 
much more than mere legislation. It has become a political windstorm 
blowing down Pennsylvania Avenue and through the Halls of Congress.
  The President's proposal has been barreling through Congress like a 
Mack truck, threatening to run over anyone who dares to stand in its 
way. And Congress, so far, has cleared a path and cheered on this 
rumbling big rig, without stopping to think seriously about where it is 
ultimately headed. Now we are going to think seriously about it.
  The President assures us that he is safely behind the wheel, and that 
all we need to do is give him the ``flexibility''--I use his word, 
``flexibility''--he needs to fight terror immediately, and he will 
handle it from there.
  While the President's assurances may help some people sleep better, I 
am left tossing and turning on my pillow at night. I fear terrorism as 
much as anyone, and I recognize the need for constructive, decisive 
action in these daunting times. But lately I have also been plagued by 
the fear that, in the name of homeland security, we may be jeopardizing 
liberties from within our own Government by unwittingly trading in many 
of the constitutional protections which were designed by the Founding 
Fathers as safeguards against the dangerous tendencies of human nature.
  In Federalist No. 48, James Madison wrote:

       It will not be denied that power is of an encroaching 
     nature and that it ought to be effectually restrained from 
     passing the limits assigned to it.

  Now, that is James Madison:

       It will not be denied that power is of an encroaching 
     nature and that it ought to be effectually restrained from 
     passing the limits assigned to it.

  The President is clearly attempting to remove the limits on his 
power. I don't question his good intention. Maybe he doesn't understand 
what he is doing. But this is clearly an attempt to remove limits on 
the Executive's power, and Congress is doing very little, up to this 
point, to restrain the administration's ambitions.
  I am alarmed that the President is demanding such broad authority 
over an unprecedented amount of resources and information, while at the 
same time asking us to eliminate existing legal restrictions to allow 
him the ``managerial flexibility'' to respond to changing threats. His 
proposal gives the Secretary of Homeland Security almost unlimited 
access to intelligence and law enforcement information without adequate 
protections against misuse of such information. I am willing to give 
the President necessary authority to secure the Nation's safety, but I 
believe we can give him flexibility without giving him a blank check.

[[Page S8047]]

  In Federalist No. 48--and Senators and Representatives and other 
people should read the Federalist Papers once again--in Federalist No. 
48 here is what he said:

       An elective despotism was not the government we fought for. 
     . . .

  Nobody is suggesting there be an elective despotism. But I am 
suggesting that we better go very carefully, as we legislate on this 
proposal, that we do not release to the executive branch, by 
legislation, powers that the Constitution guards against.
  This is what Madison says:

       An elective despotism was not the government we fought for. 
     . . .

  We can, in this Senate, very well pass legislation that ends up 
giving to any President--I am not just talking about Mr. Bush--the 
powers that amount to an elective despotism. That is what I am 
concerned about in this legislation--one of the things.

       An elective despotism was not the government we fought for; 
     but one which should not only be founded on free principles, 
     but in which the powers of government should be so divided 
     and balanced among several bodies of magistracy as that no 
     one could transcend their legal limits without being 
     effectually checked and restrained by the others.

  Now, that is what I am saying Congress needs to be aware of. We need 
to be on guard that we do not pass legislation that, in the end, gives 
a President--and there is no assurance that this President will be 
President forever; he may be President for 2 more years or maybe 6 more 
years. Who knows. But the Congress must be on guard in this 
legislation--I know it is very tempting to vote without further delay, 
without any argument, vote for a new department of homeland security. 
And we ought to have it. But it will be very easy for Congress to pass 
legislation that, in the end, results in elective despotism. Madison 
warns us against it.
  The President's proposal cripples internal oversight offices and 
weakens external legal controls on the Department, including 
unnecessary exemptions from public disclosure laws such as the Federal 
Advisory Committee Act and the Freedom of Information Act, allowing the 
Secretary to exercise his broad authority in relative secrecy.
  In many of these areas, Senator Lieberman's committee, working with 
Senator Thompson, has brought in a bill that is, in my judgment, much 
better than the administration's proposal, which is largely reflected 
by the House bill. And at the end of the day, the House bill will be 
before the Senate--at some point, Mr. Lieberman will offer his 
substitute--so that the Senate will have before it both the House bill 
and the Lieberman proposal.
  So what I am saying is not altogether, or even in great part, 
criticism of the product the committee has given to the Senate. I am 
stating my concerns. We cannot brush aside the House bill. It is going 
to be in conference, and we are going into conference, and these 
conferees are going to be up against the House conferees--the House, 
which is under the control of the other party, which is in control of 
the White House. So I do not envy the challenges that are going to be 
before our Senate conferees. I am speaking of my concerns with respect 
to one or both of these measures that will be before the Senate.
  These exemptions reflect the administration's strong antagonism 
toward traditional ``good government'' and ``sunshine'' laws that 
attempt to cast light on government activities and subject them to 
public scrutiny. The administration is seizing on this legislative 
opportunity to weaken these important laws.
  The administration is attempting to gut the traditional protections 
for personal privacy and civil rights abuses from the new Department, 
and the bill that was passed by the House of Representatives 
effectively dismantles most of these safeguards. Unfortunately, the 
Senate doesn't do enough, in my judgment, to restore those checks.
  The Senate bill does require, very generally, that the Secretary and 
the directorate for intelligence establish rules and procedures for 
governing the disclosure of sensitive information. Some of this 
language restricts the use of information to only authorized and 
``official'' purposes, but this restriction is meaningless because the 
vague authority given to the Secretary allows him to claim that almost 
anything he wants to do constitutes an ``official'' purpose.
  In pressuring Congress to pass homeland security legislation, the 
administration is using the ``war on terror'' as a red herring to draw 
attention away from the underlying objectives of the administration's 
proposal, which include expanding the regime of secrecy that has been 
established by the White House to the 22, 25, 28, or 30 agencies of the 
new Department of Homeland Security.
  Once the Department has been legally shrouded in secrecy, the 
President can take advantage of his broad access to information and its 
vague mission and authority to command the ``war'' without scrutiny 
from Congress or the public.

  The President has proclaimed that we are entering a ``new era,'' one 
that will resemble the cold war in its concerns for national security. 
His proposal marks a disturbing start for this era and I am afraid may 
be a sign of things to come. The cold war began with an iron curtain 
descending over Europe. Under this bill, the war on terror may have 
begun with an iron curtain descending around our Government.
  Congress must not defer to executive judgment alone. Congress must 
not trust that this administration, or any other administration, will 
always act in the best interest of the Nation. Absolute trust and 
unquestioning deference are dangerous gifts for the legislature to 
bestow on the executive, even when our leaders have given us no reason 
for doubt.
  Good intentions do not guarantee good government. As Madison tells us 
in Federalist No. 51:

       If men were angels, no government would be necessary. If 
     angels were to govern men, neither external nor internal 
     controls on government would be necessary. In framing a 
     government which is to be administered by men over men, the 
     great difficulty lies in this: You first enable the 
     government to control the governed; and in the next place, 
     oblige it to control itself. A dependence on the people is no 
     doubt the primary control on the government; but experience 
     has taught mankind the necessity of auxiliary precautions.

  Madam President, Justice Brandeis echoed Madison's warning of the 
dangers of relying on the good intentions of government. He wrote:

       Experience should teach us to be most on our guard to 
     protect liberty when the government's purposes are 
     beneficent. Men born to freedom are naturally alert to repel 
     invasion of their liberty by evil minded rulers. The greatest 
     dangers to liberty lurk in insidious encroachment by men of 
     zeal, well-meaning, but without understanding.

  I suspect that this administration means well in its desire to 
mobilize the Government against terror, but so many in the 
administration have come lately--not all, but some. I fear that some of 
what the administration is asking for is a danger to the people's 
liberty.
  In our rush to reorganize the Government, we seem to have forgotten 
the principles upon which the Government was founded. The Constitution 
established a system of divided Government, a system that feared 
tyranny more than it favored efficiency. The Constitution's separation 
of powers and checks and balances were not designed to provide 
managerial flexibility to any President, Democrat or Republican. They 
were designed to limit the power of the state over its citizens by 
ensuring that individual liberties could not be easily abridged by the 
unchallenged authority of any one branch of Government.
  President Harry Truman proposed the most dramatic reorganization of 
the last century, creating the Department of Defense and the CIA in 
response to the new threats of the cold war. But even after he presided 
over such a critical moment of national security, he remained skeptical 
of the need for efficiency and flexibility in the executive branch. 
Truman said:

       When there's too much efficiency in government, you've got 
     a dictator. And it isn't efficiency in government we're 
     after, it's freedom in government. . . .

  That is Truman. That is my favorite Democratic President in our time. 
Following him came Mr. Eisenhower, who I have--at least lately--come to 
believe was the greatest Republican President in our time.
  I continue with Truman's words:

       And if the time ever comes when we concentrate all the 
     power for legislating and for

[[Page S8048]]

     justice in one place, then we've got a dictatorship and we go 
     down the drain the same as all the rest of those republics 
     have.

  Madam President, the administration's proposal makes clear to me that 
it is not freedom in Government the administration is after.
  The Secretary of Homeland Security will become a human link between 
the FBI, the CIA, and local police departments, serving as a ``focal 
point'' for all intelligence information available to the United 
States. I am concerned that in this role he may be able to circumvent 
existing legal restrictions placed on those agencies to protect 
individual privacy, civil rights, and civil liberties.
  The Homeland Security Department will be authorized to draw on the 
resources of almost any relevant agency at the Federal, State, and 
local level, ranging from sensitive international intelligence compiled 
by the CIA and the NSA to surveillance of U.S. citizens by the FBI and 
local police. Many of these agencies were very purposely kept separate 
and distinct, or were given limited jurisdiction or investigative 
powers, in order to reduce abuses of power. However, when the 
Department--this new Department--draws on the resources and information 
of other agencies, it may not necessarily be subject to the same legal 
restraints imposed on those agencies.
  In addition, the civil rights officer and the privacy officer 
established under the administration's plan to uncover abuses in the 
Department are not given enough authority to actually carry out their 
jobs. They are essentially advisers with no real investigative or 
enforcement power. Both officers are responsible for ensuring 
compliance with existing law, but their only legal recourse after 
identifying a problem or violation is to report the problem to the 
Department's inspector general.
  However, the inspector general, in turn, is under no obligation to 
follow up on privacy and civil rights complaints, only an obligation to 
inform Congress of any ``civil rights abuses'' in semi-annual reports. 
If and when the IG does choose to investigate, he will often be unable 
to do so independently as the Inspector General Act intended, because 
this plan provides that the inspector general will be ``under the 
authority, direction, and control of the Secretary''--now get that. 
That ought to be enough to curl your hair. Let me read that again. The 
inspector general will be ``under the authority, direction, and control 
of the Secretary''--meaning the Secretary of Homeland Security--``with 
respect to audits or investigations, or the issuance of subpoenas, 
which require access to sensitive information.'' And the Secretary can 
say no if he determines certain things, which I can read into the 
Record--he determines; if he determines, the Secretary; if he 
determines no, the inspector general is stopped in his tracks. That is 
it. Is that the way the people in this country want it to be? I do not 
believe so.
  Granting the Secretary control over internal investigations puts the 
``fox in charge of the hen house'' whenever the fox claims a national 
security reason for it.
  The inspector general can say: I have a national security reason. You 
have to stop. You cannot investigate further. You cannot subpoena 
witnesses. You cannot because Congress passed the law that the 
administration wanted saying you cannot. So you stop right here in your 
tracks.
  Is that the way the American people want it? No.
  The President's proposal also lets the fox have his way when he uses 
working groups--now get this--to investigate or craft policy. Although 
not included in the Senate bill, the House bill, which will be before 
the Senate likewise, allows the Secretary of Homeland Security to 
exempt advisory groups within the Department from the disclosure 
requirements of the Federal Advisory Committee Act. The practical 
effect of this authority would be to give the Secretary of Homeland 
Security the ability to conduct secret meetings to craft Department 
policy, minimizing interference from Congress and the public.
  This would appear to expand the model of secret policymaking 
currently employed in the administration, the most notable example 
being Vice President Cheney's secret energy working group.
  While the Federal Advisory Committee Act does exempt the Central 
Intelligence Agency and the Federal Reserve from disclosure 
requirements, the justification for doing so cannot support providing 
the same exemption for the Department of Homeland Security.
  The broad authority and domestic jurisdiction of the Department 
distinguish it from the CIA which has no authority to invade the 
privacy of U.S. citizens domestically and whose activities are 
controlled more directly by the President in exercise of his 
constitutional powers over foreign affairs. The exemption for the 
Federal Reserve protects financial information and economic projections 
in order to protect the integrity of the markets.
  While it may be reasonable to excuse the Fed from this kind of public 
disclosure, I am not comfortable in allowing the Secretary of Homeland 
Security to set the level of preparedness in complete secrecy in the 
same way that Alan Greenspan sets interest rates.
  The Federal Advisory Committee Act already allows waivers for 
sensitive information, so there is no compelling national security 
justification for providing this blanket exemption. Removing this 
exemption would not eliminate the Secretary's ability to convene 
committees in secret, but it would make the Secretary and the President 
more accountable--more accountable--for choosing to do so.
  The President is authorized under existing law to determine which 
committees should be exempt from disclosure for national security 
reasons, and he must explain himself every time he does so. The bill 
passed by the House allows the Secretary to exempt committees at will, 
while only paying lipservice to Congress. Both the House bill and the 
Senate bill provide an unnecessary exemption, in my viewpoint, from the 
Freedom of Information Act for critical infrastructure information 
provided by private corporations.
  The FOIA requires public disclosure of Government materials on 
request, but it already provides exemptions for national security 
information, sensitive law enforcement information, and confidential 
business information. The administration's proposal extends these 
exemptions to include any information voluntarily submitted by 
corporations to the Department. As a result of this exemption, this 
corporate information could not be released under the Freedom of 
Information Act for other enforcement purposes, so corporations would 
be allowed to escape liability for any information they submit.
  I have argued, Madam President, that parts of this bill should be put 
off to allow enough time for informed deliberation. I reaffirm my 
objections to rushing into all of these agency transfers and new 
directives. However, these secrecy problems have to be addressed also.
  The President has said that how we respond to this crisis will 
determine what kind of legacy we leave. I agree with the President on 
that point. That is exactly why I suggest to the Members of the Senate 
we should take time to remember the legacy that we have inherited, a 
legacy of liberty and limited Government, and preserve these principles 
in the legacy that we will bequeath.
  This new Department is going to be with us for some time, so we must 
think beyond the next election and act with an eye to the future. This 
Congress needs to make sure we will have some recourse in the event 
that the administration's reorganization does not live up to all of its 
promises. Congress has a role to play in the ongoing supervision of the 
Federal Government, and we should not compromise that role by hastily 
surrendering our constitutional powers.
  I yield the floor.

                          ____________________