[Congressional Record Volume 148, Number 117 (Tuesday, September 17, 2002)]
[Senate]
[Pages S8644-S8649]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     HOMELAND SECURITY ACT OF 2002

  The PRESIDING OFFICER. Under the previous order, the hour of 2:15 
p.m. having arrived, the Senate will now resume consideration of H.R. 
5005, which the clerk will report by title.
  The assistant legislative clerk read as follows:

       A bill (H.R. 5005) to establish the Department of Homeland 
     Security, and for other purposes.

  Pending:

       Lieberman amendment No. 4471, in the nature of a 
     substitute.
       Thompson/Warner amendment No. 4513 (to amendment No. 4471), 
     to strike title II, establishing the National Office for 
     Combating Terrorism, and title III, developing the National 
     Strategy for Combating Terrorism and Homeland Security 
     Response for detection, prevention, protection, response, and 
     recover to counter terrorist threats.
       Lieberman amendment No. 4534 (to amendment No. 4513), to 
     provide for a National Office for Combating Terrorism, and a 
     National Strategy for Combating Terrorism and the Homeland 
     Security Response.

  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, under an order previously entered, it is my 
understanding the Senator from West Virginia has the floor; is that 
right?
  The PRESIDING OFFICER. The Senator is correct. Under the previous 
order, the Senator from West Virginia is recognized.
  Mr. BYRD. Mr. President, I thank the Chair and I thank the 
distinguished Democratic whip.
  Mr. President, I want to be sure that Senators understand the 
parliamentary situation in the Senate at this point.
  Last Thursday, the Senate voted on a motion to table the Thompson 
amendment to strike Titles II and III of the Lieberman substitute. 
Title II would establish a new National Office for Combating Terrorism 
within the Executive Office of the President whose Director would be 
confirmed by the Senate and made accountable to the Congress.
  That is incredibly important. The National Office for Combating 
Terrorism was viewed by our good colleague, Senator Lieberman as a 
central part of his homeland security bill. Title II was carried over 
from his original bill that was introduced last May, before the White 
House endorsed the idea of creating a new Department of Homeland 
Security.
  But the motion to table the Thompson amendment to strike Title II 
failed by a vote of 41-55 last Thursday. Senator Lieberman conceded the 
victory to Senator Thompson, and urged the Senate to accept the ``the 
next best idea.'' Senator Lieberman offered a scaled down version of 
Titles II and III as a second degree amendment to the Thompson 
amendment.
  It was at that point that I gained the floor and have held it until 
today.
  So I find myself in a position that I had not intended--and not an 
easy position. I have often felt, in recent days, as if this 84-year-
old man--soon to be 85; within a few days--is the only thing standing 
between a White House hungry for power and the safeguards in the 
Constitution. That is not bragging, that is lamenting.
  This is not the way it ought to be. This will not go down as one of 
the Senate's shining moments. Historians will not look back at this 
debate and say that we fulfilled the role that was envisioned by the 
Framers.
  This Senate should have the wisdom to stand for this institution and 
the Constitution. It is not our duty to protect the White House. It is 
our duty to protect the people--those people out there looking through 
their electronic lenses, the people who come here from day to day, 
these silent individuals who sit up here in the galleries. They do not 
have anything to say. They are not allowed to speak under the Senate 
rules, but they sit and watch us. They are looking over our shoulders, 
as it were, and they expect us to speak for them. They will help to 
ensure that the interests and the rights of the American people are 
protected. That is what these people want. They want us to assure that 
their interests--the people's interests--and the rights of the American 
people are protected.
  I have been joined by a few voices on this floor in recent days, and 
I thank them. I feel that at least some Members are beginning to view 
this legislation as doing much more than merely setting up a new 
Department of Homeland Security.
  I have also heard from citizens across the country who have urged me 
never to give up. Well, I can assure them that as long as I am 
privileged to serve in this body I will never give up defending the 
Constitution.
  I heard Condoleezza Rice last Sunday, and I heard Dr. Rice the Sunday 
before.
  I heard Secretary of State Powell last Sunday on television, and I 
heard him the Sunday before.
  I have listened to Secretary Rumsfeld, and I have listened to Vice 
President Cheney on television.
  I have listened to various and sundry Senators on television. I have 
listened to various and sundry other spokespersons on television.
  I read the op-ed piece of former Secretary of State Shultz in the 
newspaper Sunday a week ago.

[[Page S8645]]

  I read the op-ed piece of former Secretary of State James Baker in 
the paper this past Sunday. And I hear many persons in the media--not 
everybody but some in the media--who seem to be intent upon galvanizing 
this and making this country ready for war. Not one of these people 
have I heard--maybe I missed it--refer to the Constitution. I take an 
oath, and so does every other Senator, to support and defend the 
Constitution of the United States against all enemies, foreign and 
domestic. Nobody says anything about the Constitution in this debate 
that is raging over the country.
  There is a great fervor, and there is a great wave of opinion being 
created. And some in the media are doing it, or helping to create it. 
They have their minds made up. We are off to war.
  I can hear the bugles, and I can see the flag. I can see the sunlight 
tinting on the bugles as they pass, and the flag I see going already. I 
can hear the guns. There is a great fervor here, and I hear the war 
drums being beaten. It is as though we have our minds made up. It is as 
though the President is already ready to go. And there is a developing 
hysteria in this country saying: Let us go to war. We have our minds 
made up.
  Nobody stands up against that. But the Constitution is a barrier--
this Constitution which I hold in my hand. This Constitution says 
Congress shall have the power to declare war. It doesn't say the 
President shall have power to declare war. It doesn't say the Secretary 
of State shall have power to declare war. Congress shall have power to 
declare war. But who is bothering to mention Congress? Who is bothering 
to mention the Constitution? It has become irrelevant, as far as some 
of the commentators and columnists and editorial writers are concerned, 
it seems to me. That is my impression. The Constitution has become just 
an old piece of paper. It was great 215 years ago but not now. Events 
have overtaken the Constitution. Nobody mentions it.

  I haven't heard Dr. Condoleezza Rice mention it on her television 
appearances. I haven't heard the Secretary of State mention the 
Constitution. I haven't heard the Secretary of Defense mention the 
Constitution. I haven't heard the Vice President of the United States 
say a word about the Constitution when he discusses the business of 
going to war.
  Has it become irrelevant? Are we to sit supinely by and be swept up 
in this national fervor that is being developed, that is being created 
to stampede this country into war? Are we to sit silently by?
  Well, I want to assure the people that as long as I am privileged to 
serve in this body I will never give up defending the Constitution. And 
the Constitution is front and center to this business that we are 
discussing--the issue of war and peace. The Constitution is front and 
center.
  Why, there are some who will get on the national television 
programs--they do not invite me; I don't expect them to mention the 
Constitution. Why is it? Why is that?
  Here is the Vice President, the President of this body right here 
under the Constitution, who can't address the Senate except by 
unanimous consent, but when he is on national television on these 
programs, why doesn't he mention the Constitution? Is this Constitution 
irrelevant? They take for granted, I suppose, that the United Nations 
is the chief authorizer of America marching off to war.
  I am for what the President did the other day. He went to the United 
Nations. He has pointed the finger, as it were, at the United Nations, 
and said the United Nations has been recreant in its duty and recreant 
in its responsibility to enforce its resolutions. I think he laid down 
an excellent case in making that point.
  But we also have a duty here. We have a duty to uphold this 
Constitution and what it says about declaration of war and what it says 
about Congress.
  Why, it is as though the Constitution is something that went away 
with the winds of yesterday--gone.
  I can assure the people I will never give up defending this 
Constitution. It is my sworn duty. At some point, however, I will have 
to relinquish the floor. And when I do, the Lieberman amendment 
presumably will be withdrawn and the Senate will vote on the Thompson 
amendment. That amendment, I presume, would pass, and titles II and III 
of the Lieberman substitute will be stricken from the bill.
  Senator Lieberman may be right that we don't have the votes to defeat 
the Thompson amendment. But what disturbs me most of all is that such 
an important element of the Lieberman substitute could be stricken from 
the bill so easily.
  I am talking about the need to confirm the Director of the National 
Office for Combating Terrorism. So I just refer to that title as the 
Director.
  Now, I don't think we should accept that verdict so easily.
  It is unbelievable to me that people are not fighting harder for 
these proposals, not only in title II and title III, but throughout the 
entire bill. The issues raised by this legislation are too important to 
languish without more debate in the Senate.
  I know I am not the only Senator who is concerned about this bill, 
but I have not heard enough voices speaking out on these important 
matters. There are many, many unanswered questions which Senators need 
to focus on and explore.
  Of course, I can't fight this battle alone.
  Meanwhile, the President and the House Republican leadership are 
already turning up the heat on the Senate to pass this bill quickly. 
The President even suggests that delaying this bill will endanger the 
lives of the American people.
  That is nice rhetoric, Mr. President, but I doubt whether anyone 
believes that argument. The people are not endangered by our thorough 
consideration of this legislation. The mistakes we avoid now are just 
as important as getting the Department in place quickly. What is not 
done well, generally, must be done over, and unintended consequences 
can take years to correct.
  Nevertheless, pressures are building to expedite consideration of 
this bill. But in taking the floor, I hope to draw attention not only 
to the fallibility of passing this bill without a confirmable White 
House Homeland Security Director, but to other portions of this bill 
that should make Senators question the rush to enact this legislation 
so quickly.
  My hope is that Senators will consider the gravity of this 
legislation before they simply jump on board somehow. This homeland 
security legislation will have important consequences not only for the 
lives of all Americans, but for the American way of life as well.
  Mr. President, the security of the American people, on American soil, 
is, and has always been, our Government's most solemn responsibility. 
September 11 added a new dimension and urgency to that duty.
  The bill before the Senate seeks to enhance our Government's ability 
to protect the American people from the devastation of another 
terrorist attack by creating a new Department of Homeland Security.
  I have been for that. I was for that before President Bush was for 
it.
  That is a very ambitious goal. It is a worthy and honorable goal born 
of commendable intentions. But if we do not move with great caution--if 
we do not slow down just a little bit--move with great caution--and 
deliberation in our work, we will risk undermining the very purpose to 
which we are dedicated.
  My concerns about the proposed legislation are many. They are legion. 
While we can all embrace the concept of a new Department of Homeland 
Security, there are many, many pitfalls ahead for such an endeavor in 
the complicated new atmosphere of what has been called a ``war'' on 
terrorism.
  I have made several comments about the threat that this new 
Department poses to the civil liberties--hear me now--to the civil 
liberties of the American people. And that is not just hyperbole.
  Twenty-six leaders of conservative organizations across this country 
released a statement this month urging the Senate to exercise 
``restraint, caution, and deeper scrutiny before hastily granting 
unnecessary powers to a homeland security bureaucracy.''
  So, you see, that was not just Robert Byrd talking. That was not just 
an 84-year-old man, soon to be 85, talking.
  Let me say that again. Twenty-six leaders of conservative--get that--
conservative organizations across America released a statement this 
month urging the Senate to exercise--and I quote--

[[Page S8646]]

``restraint, caution, and deeper scrutiny before hastily granting 
unnecessary powers to a homeland security bureaucracy.''
  They wrote that:

       [T]he popular enthusiasm for such a centralization and 
     bureaucratization in the name of homeland security may prove 
     unwise. Proposed legislation not only increases the growth of 
     the federal bureaucracy but establishes an infrastructure, 
     legal and institutional, which, if abused, could lead to 
     serious restrictions on the personal freedoms and civil 
     liberties of all Americans.

  In case there are any latecomers to hearing this Senate, just now, I 
am talking about 26 leaders of conservative organizations across 
America who released a statement this month urging the Senate to slow 
down. They wrote--and I quote again:

       [T]he popular enthusiasm for such a centralization and 
     bureaucratization in the name of homeland security may prove 
     unwise. Proposed legislation not only increases the growth of 
     the federal bureaucracy but establishes an infrastructure, 
     legal and institutional, which, if abused, could lead to 
     serious restrictions on the personal freedoms and civil 
     liberties of all Americans.

  ``All Americans.''
  September 11 was a shock to this Nation, and the fear, anger, and 
alarm it engendered have not, as yet, vanished. My concern is that in 
our zeal to see to it that terrorists never again defile our homeland, 
we will unwittingly cede some of our precious freedoms and blur the 
constitutional safeguards that have been the basis for our liberties 
and the check against an overreaching executive for 215 years, or 
thereabouts.
  Let me make it clear that I am not accusing anyone of deliberately 
trying to exploit our national tragedy.
  Rather, I believe that in our shock and revulsion, our collective 
determination to prevent further horrific attacks may change our Nation 
in fundamental ways that will eventually surprise and dismay all of us. 
How terribly ironic it would be if it were our response to the 
treachery of al-Qaida which dealt our constitutionally guaranteed 
freedoms the most devastating blow of them all.
  I believe that all of those in Government, those of us in Government 
who are challenged with confronting the horrible reality of what 
happened on September 11, have not, even yet, come to grips with 
certain fundamental realities. We must all begin to face certain 
truths.
  Terrorism is a worldwide force, and our ability to prevent it at home 
or contain it abroad is limited--is limited--at best.
  An enemy in the shadows, living among us and using our own openness 
and freedoms to attack our infrastructure, and to cripple and kill our 
citizens, is unlike any enemy we have ever before known.
  No Government Department can ever guarantee complete safety from this 
kind of threat in a world increasingly connected by trade, travel, 
electronic communication, migrating populations and open borders. But, 
we can do our best to anticipate vulnerabilities, protect critical 
infrastructure, and respond to possible devastation or deliberately 
spread disease.
  Yet, we can never be perfectly safe from the scourge of a terrorist 
attack. That is reality. And handing over our precious liberties and 
hard-won principles on such topics as worker rights, openness in 
government, the right to privacy and civil liberties--that is what is 
involved here--will not change that unfortunate and troubling reality. 
Such a course, blindly followed in the name of fighting terrorism, 
would be disastrous. Hear me. It is understandable that this 
administration, or any administration so consumed with the need to 
prevent another such horrific attack, might become so zealous and so 
focused on that mission that important freedoms could be trampled or 
relegated to a secondary position in our national life. If we are not 
vigilant, our country could be fundamentally changed before we realize 
it, in ways which we would all come to deeply regret.
  Let me illustrate what I mean. Recent headlines have provided 
examples of the administration's strong penchant for secrecy, and its 
refusal to be confined by the law and the Constitution in its attempts 
to shield its actions from public scrutiny.
  Last month, a Federal appeals court in Cincinnati issued a direct 
rebuke of attempts by the Administration to circumvent the 
Constitution--there is that magic word--by conducting deportation 
hearings in secret, whenever the government asserts that the object of 
the hearings might be linked to terrorism. Writing for the three-judge 
panel of the 6th Circuit Court of Appeals, Judge Damon J. Keith wrote, 
``A government operating in the shadow of secrecy stands in complete 
opposition to the society envisioned by the framers of our 
Constitution.''
  The Justice Department has already conducted hundreds of these 
hearings out of sight of the press and the public. In doing so, the 
administration has been able to decide the fate of each of these 
individuals without recrimination.
  It may be that all of these hearings were conducted properly and 
fairly, but there is just no way for us to know. Like so many other 
actions that this administration has taken on behalf of our safety, we 
have no way of knowing whether what they have done was the right thing 
to do. Nobody in this administration or anywhere else is all wise. We 
have no way of knowing whether the steps they have taken have really 
helped to secure our safety. And we have no way of knowing whether the 
actions they took may have threatened our own liberties.
  The administration argued that secrecy is necessary for these 
hearings because subjecting them to public scrutiny would compromise 
its fight against terrorism.
  The court's concurring opinion addressed the merits of the 
government's position, but it pointed out that a reasonable solution to 
the administration's concerns could be achieved by requiring the 
Government to demonstrate the need for secrecy in each hearing on a 
case-by-case basis.
  Ultimately, the Court of Appeals saw the Government's argument for 
what it is; namely, a danger to our liberty. The court took the clear-
headed, clear-eyed position that excessive secrecy in matters such as 
these compromises the very principles of free and open government that 
the fight against terror is meant to protect.
  Even with the best of intentions to justify the Government's actions, 
our freedoms are easily trampled when officials are allowed to exercise 
the power of the Government without exposing their actions to the light 
of day.
  As Judge Keith wrote, ``Democracies die behind closed doors.''
  We have also seen evidence in the news of what the executive branch 
is capable of when it is allowed to operate behind closed doors. On 
August 23, just last month, the front page of the Washington Post 
brought news of serious abuses of the laws that allow the Justice 
Department to conduct certain law enforcement activities in secret. 
Thank providence, thank heaven for a free press. That is what we want 
to keep. That is what we want to maintain--a free press.
  The Washington Post article revealed that on May 17, a secret court 
that was created to oversee the Government's foreign intelligence 
activities rejected new rules proposed by the Department of Justice 
that would have expanded the ability of Federal investigators and 
prosecutors to operate in secret.
  There you have it again--secret.
  The Attorney General, John Ashcroft, wanted to tear down the walls 
between intelligence officials and law enforcement officials in the 
Department of Justice, allowing broad sharing of secret intelligence 
information among offices throughout the Department.
  Mr. Ashcroft wanted to tear down these walls for a reason. The walls 
make it harder for his Department to circumvent the constitutional 
obstacles faced by his investigators in trying to hunt down terrorists. 
And like others in this administration, Mr. Ashcroft has little 
patience or concern for the Constitution now that he is a general in 
the President's ``war on terror.''
  I voted for Mr. Ashcroft. I am not one of those who opposed his 
nomination. I was one of the few on this side of the aisle who voted 
for Mr. Ashcroft's nomination. I have to say, I am disappointed. But 
Mr. Ashcroft is not alone. Take a look at this administration.
  Haven't you heard of the shadow government? That came to light a 
while back. All of a sudden, like the prophet's gourd, it just grew up 
overnight.

[[Page S8647]]

Here is this shadow government. I had not been told about it. After 
all, I am chairman of the Appropriations Committee in the Senate. I am 
not the top Democrat in the Senate, but I am the senior Democrat in the 
Senate. I hadn't been told anything about it. I am the President pro 
tempore of the Senate; in other words, the President, for the time 
being. If the Vice President is not in the chair, I am the President of 
the Senate. I hadn't been told anything about a shadow government.
  Of course, I said time and time again how this great idea about a 
Homeland Security Department, at least the administration's great 
plans, suddenly sprang into existence, like Aphrodite, who sprang from 
the ocean foam, or like Minerva, who sprang from the forehead of Jove 
fully armed and fully clothed.
  All of this was a secret. We didn't know anything about this thing 
hatched out of the bosom of the White House--this great plan hatched 
out by four individuals in the bowels of the White House. So this White 
House, this administration, has a penchant for secrecy.
  I am not going to point the finger just at Mr. Ashcroft. I voted for 
him. On this side of the aisle, I voted for him. He used to serve in 
this body. But Mr. Ashcroft wanted to tear down these walls for a 
reason. I say again, the walls make it harder, as all walls do, to get 
wherever you are going. The walls make it harder for his Department, 
Mr. Ashcroft's Department, to circumvent, get around, the 
constitutional obstacles faced by his investigators in trying to hunt 
down terrorists.
  He and others in this administration apparently have little patience 
and concern for the Constitution--here it is--now that he is a general 
in the President's war on terror. Today is September 17, 2002, in the 
year of Our Lord; this is the day, 215 years ago, when our forefathers 
signed their names, the framers of the Constitution signed their names 
on the Constitution. They had completed their work, which had begun 
back in May 1787, and they signed their names on this Constitution. 
This is the day. I will have more to say about that shortly.
  But this secret court, which was created by Congress under the 
Foreign Intelligence Surveillance Act, recognized the danger of tearing 
down these protective walls. The act made it easier for Federal 
investigators to obtain evidence through wiretaps or physical searches 
when the evidence will be used for foreign intelligence purposes. 
Traditional criminal investigations require a higher standard for 
search warrants and wiretaps, to protect the constitutional rights of 
American citizens. By trying to tear down the wall between the two, the 
Attorney General was hoping to lower the bar for obtaining evidence for 
criminal investigations by expanding access to secret procedures used 
in foreign intelligence.
  The wall between law enforcement and intelligence has always allowed 
for cooperation in specific instances. In fact, this is the first time 
in the history of this secret court that an administration's request 
has been rejected. But this cooperation has previously been allowed to 
prosecute people such as CIA mole Aldrich Ames, whose crime was 
inextricably linked to foreign intelligence. If this wall had fallen, 
the Justice Department would be allowed to secretly investigate almost 
anyone who made an international phone call.
  It is well to remember that the Patriot Act, passed in the aftermath 
of September 11, already lowered the bar for bypassing due process, 
privacy, and individual freedom. The Justice Department argues that the 
Patriot Act also authorizes the elimination of the wall between 
intelligence and law enforcement.
  Couple this momentum with a new Department primed to root out 
terrorism at home and abroad and a powerful new Secretary of Homeland 
Security with intelligence powers that cut across traditional lines of 
authority, and one can easily see the possibility for abuse and for 
excess. That is why I am standing on the floor--trying to draw the 
attention of the public, trying to capture the attention of my 
colleagues, and trying to capture the media's attention. This is what I 
am talking about.
  In reacting to the court's ruling, the Justice Department said:

       We believe that the court's action unnecessarily narrowed 
     the Patriot Act and limited our ability to fully utilize the 
     authority Congress gave us.

  Get that. It is the phrase ``fully utilize'' that gives me some 
special pause. Powers granted to this administration must continue to 
be checked. Oh, I tell you, they need to be checked. The need for 
checks on administrative powers is not just hypothetical, it is not 
just constitutional; I wish more would pay attention to that aspect of 
it. It has been well documented by recent Executive actions.
  The most disturbing part of the secret court opinion is the 
revelation that the Justice Department has already been abusing this 
secret process, including 75 specific instances cited by the court in 
which FBI, or Justice officials, provided false statements in their 
applications for wiretaps and search orders, including one application 
signed by then-FBI Director Louis B. Freeh.
  The court cited these examples as evidence of the need to keep a 
close eye on the Department's activities in order to prevent an 
environment in which cooperation becomes subordinated to the law 
enforcement agenda of the Attorney General.
  While some of the abuses identified by the court occurred during the 
administration of former President Clinton, rather than President Bush, 
the need for oversight applies to every administration.
  My concerns are not just based on who may be in the White House at a 
particular moment. My concerns are based in the Constitution. These 
problems transcend administrations. Administrations may come and go, 
but the Constitution, like Tennyson's brook, goes on and on forever.
  The war on terrorism must not be used by the executive branch--any 
executive branch. Mr. Bush certainly won't be in office forever. So one 
should look even beyond this administration, whatever the next 
administration will be. The war on terrorism must not be used by the 
executive branch as an excuse to ignore constitutional liberties behind 
closed doors and to destroy the delicate checks and balances that have 
made this Nation a great beacon for freedom to the world.
  Congress is the leveler when it comes to precipitous actions. The 
Senate, in particular, is the place intended by the Framers for cooling 
off. A calm oasis where reason and cooler heads prevail against the 
heat of passion has always been found on the floor of the United States 
Senate, and I hope that we in this Chamber will again step up to that 
traditional calling as we consider this matter in these extraordinary 
times.
  In an election year, all politicians like to claim we have an answer 
for even the Nation's most intractable problems, but in this case we 
underestimate the intelligence of the American people if we believe 
that merely offering them a new Department of Homeland Security will 
serve as currency to buy our way out of our continuing responsibilities 
under the Constitution.
  The people know that such a Department is no panacea for protection 
of our homeland. They will never forgive us if we are lax in our duty 
to safeguard traditional freedoms and American values based on the 
Constitution as we rush to fashion a new Department, even though that 
Department is intended to protect the American people from the 
insidious danger of a virulent attack on our homeland.
  In the name of homeland security, Congress must not be persuaded to 
grant broad authorities to the administration that, given more careful 
thought, we would not grant. The House has already passed legislation 
to grant the President the authority to waive worker protections for 
Federal employees, to place the new Department's inspector general 
under the thumb of the Homeland Security Secretary, to exempt the new 
Department from public disclosure laws, and to chip away at 
congressional control of the power of the purse.
  Close examination of the President's plan shows that the 
administration is seeking more new powers which, unchecked, might be 
used to compromise the private lives of the American public.
  Congress must never act so recklessly as to grant such broad 
statutory powers to any President, even in the quest for something so 
vital as protection of our own land. So vital, the war

[[Page S8648]]

on terror. We must exercise great caution. We must operate with the 
clear knowledge that once such powers are granted, they will reside in 
the White House with future Presidents--Republican and Democrat--and 
they will not be easily retrieved.
  So once such powers are granted, they will not be easily retrieved. 
They will reside in the White House. And everyone who knows anything 
about the Constitution and about our experience in the political arena, 
anybody who knows anything about that, knows that no future President 
will likely return those powers, likely give up those powers, once they 
have been granted, and a Presidential veto in the future will be very 
difficult to overcome, as such a veto is usually difficult to overcome. 
Once the powers go down that avenue to the other end, they are gone for 
a long time, and the only way they can be retrieved is by overriding a 
Presidential veto. And, of course, the Senators and everyone know that 
will require a two-thirds vote. It will not make a difference whether 
the President is Democrat, Republican, or Independent; He will want to 
keep those powers. So be careful about granting them now.
  Both the House-passed bill and the Lieberman bill substitute broad 
new authority to the administration to create this new Department, but 
neither bill ensures that Congress remain involved. Neither the House 
bill nor the Lieberman bill ensure that Congress remain involved 
throughout the implementation of the legislation.
  Senator Lieberman's bill takes steps to ensure that Congress is 
informed as the Department assumes its duties, but under his bill this 
information comes to us only after the fact. It is not enough just to 
be told how the administration intends to use these statutory powers. 
Congress needs to retain some prerogatives so Congress can temper and 
shape the administration's exercise of these new authorities and so 
Congress can temper and shape the new Department's exercise of the new 
authority.
  So Congress has the responsibility to make sure we do not grant broad 
statutory powers to the President and then just simply walk away from 
the new Department, trusting that the administration will exercise 
restraint. Congress must remain involved to ensure that the orderly 
implementation of the Department does not flounder and that important 
worker rights and civil liberties do not fall into the breach.
  Government reorganization is nothing novel. We have had Government 
reorganization before. And we have from time to time found new agencies 
created in the spotlight of political pressure and then left to 
languish and go awry in the twilight of mundane and practical purpose. 
This could be a mistake.
  This administration, since the September 11 attacks, has announced at 
least three major governmental reorganizations prior to the President's 
proposal to create a new Homeland Security Department.
  Last December, in response to numerous media reports criticizing the 
Nation's porous borders, the administration proposed the consolidation 
of the Customs Service and the Immigration and Naturalization Service 
within the Justice Department.
  Last March, following the mailing of two student visas by the 
Immigration and Naturalization Service to two of the September 11 
hijackers 6 months after they crashed planes into the World Trade 
Center Towers, the administration announced the INS would be 
reorganized, split into a services bureau on the one hand and a 
separate enforcement bureau on the other.

  Last May, following reports about intelligence failures by the FBI, 
the administration announced a reorganization of the FBI. These 
reorganizations have either produced very little or they have been 
replaced by subsequent additional reorganization proposals. It is as if 
we are spinning around in circles with little left to show for all of 
the energy expended but dizziness.
  To avoid a similar fate to this new Department, I have an amendment 
to the Lieberman substitute that would ensure that the Congress 
continues to play a role. The Byrd amendment would create the 
superstructure of the new Department as outlined in the Lieberman bill, 
but would require Congress to pass separate, more detailed legislation 
to transfer the agencies, functions, and employees to it.
  The Byrd amendment would not change the intent of the Lieberman bill. 
Let me say this, Senator Lieberman is near the floor. I don't 
necessarily have to keep the floor for the next hour. I can under the 
order that had been entered. I get first recognition. But there is 
still an hour in this 2-hour period before the Senate goes back to the 
Interior appropriations bill. I welcome Mr. Lieberman's questions. I am 
happy to discuss my amendment with him if he so desires before I give 
up the floor.
  My amendment would immediately create a new Homeland Security 
Department. There it is. My amendment would create immediately a new 
Homeland Security Department. My amendment would immediately establish 
the superstructure of the six directorates outlined by the Governmental 
Affairs Committee. The Byrd amendment is not designed as an alternative 
to the Lieberman bill. I refer to it as the Lieberman bill. It is a 
bill that has been reported by the committee which Senator Lieberman so 
ably chairs. So I refer to the bill as ``the Lieberman bill.'' Its 
purpose is to strengthen. The purpose of my amendment is to strengthen 
the Lieberman bill. Its purpose is to ensure a strong Department 
capable of protecting our people. But its enactment would also ensure 
that the guiding hand of Congress would be there to help steer the 
course and stay the course.
  What is more, any legislation submitted pursuant to this act would be 
referred to the Governmental Affairs Committee in the Senate so that my 
amendment, the Byrd amendment, would not deprive Senator Lieberman or 
his committee of their jurisdiction or their expertise as we go about 
implementing this new Department which will have been created by the 
Lieberman bill. And, as I say, my amendment also creates that 
Department. My amendment allows the Department of Homeland Security to 
be established just as Senator Lieberman envisioned. But the Byrd 
amendment would give Congress additional opportunities to sift through 
details concerning worker rights, civil liberties, secrecy, and various 
duties and functions. Equally important, it would ensure that the 
agencies and the offices to be transferred into the Department can 
continue to perform their important work of protecting the homeland 
while the groundwork is being laid for their move to the new 
Department.

  Just recently we have all noted in the media that--I believe six 
persons were arrested in New York, in Buffalo, NY. Six persons were 
arrested. We didn't have any new Department of Homeland Security. There 
is no Department of Homeland Security that has been established. Yet 
the work of securing our homeland goes forward by the persons who man--
man or woman, I use the word ``man'' to mean both women and men--the 
persons who are on the borders, who are guarding the ports of entry, 
who are looking at the huge containers that come into our ports, the 
persons who--right today and last night at midnight and all through the 
hours of this day, yesterday, the day before, and tomorrow--will 
continue to do their work even though there is no Department of 
Homeland Security. The FBI was on the job. The FBI has been on the job. 
And so the FBI brought about the arrest of these six persons, and they 
are being held.
  So I say to the President and to anyone else: Nobody is holding up 
the work of proceeding with the security of our country. The people who 
will secure this Nation under a Homeland Security Department, if and 
when one is established, are the same people who are right now, right 
this day, securing the homeland. These people have been on the job last 
night, 6 months ago, and they continue to do this work. They have 
expertise. They have experience. They are trained, and so on. So nobody 
is holding up the security of the country. Nobody is holding that up. 
That is going forward, as was seen when the FBI arrested the six 
persons.
  So this is vital. Ongoing reorganizations can foster chaos and 
destroy worker morale. Orderliness and careful thought while we 
transition can avoid overlooked vulnerabilities and missed nuances 
which could signal another disaster.
  With the Byrd amendment, the Lieberman bill would transfer agencies

[[Page S8649]]

and functions to the Department, one and two directorates at a time, 
beginning on February 3 of next year. This would then give Congress the 
opportunity to gauge and to monitor how the new Department is dealing 
with transition and what additional changes might be necessary. It 
would provide a means to quickly address the problems that will 
undoubtedly arise in the early phases of the Department's 
implementation and to guard against mistakes and missteps.
  The Byrd amendment would not delay the implementation of the new 
Department one whit. It would actually expedite the implementation of 
the new Department by providing Congress with additional means to solve 
the quandaries that traditionally plague and delay and disrupt massive 
reorganizations.
  Here we are talking about 170,000 employees. We are talking about 28 
agencies and offices--some have said 30. So this is no minor movement. 
This is a major reorganization.
  Moreover, the Congress could act to transfer agencies before the end 
of next year, roughly the same time period outlined by the Lieberman 
plan. When I say the Lieberman plan, I am talking about the bill that 
was adopted by the committee, which Mr. Lieberman ably chaired. And 
that is the same time period outlined by the House bill. So who is 
holding up anything? Why shouldn't we stop, look, and listen here and 
do this thing in an orderly way? Do it right. Not necessarily do it 
now, do it here, but do it right. The Lieberman plan provides the 
President with a 1-year transition period, beginning 30 days after the 
date of enactment, effectively allowing up to 13 months before any 
agencies are transferred.
  By then forcing the administration to come back to us--which the Byrd 
amendment would do--we can insist on knowing more about the plans of 
the administration with its penchant for secrecy--plans which are now 
only hazy outlines. So if Congress passes the Lieberman proposal or if 
Congress passes the House proposal, Congress will just be turning the 
thing over to the administration, lock, stock and barrel, and saying: 
Here it is, Mr. President. You take it. You have 13 months in which to 
do this, but it is all yours. Congress will just go off to the 
sidelines. Congress will have muzzled itself.
  Whereas in the Byrd plan, the Byrd plan would also transfer these 
agencies. It would create a Homeland Security Department, and it would 
provide for the transaction, the movement of these various agencies, 
their personnel and their assets, into the new Department over the same 
period, 13 months, but it would do it in an orderly process in an 
orderly way, phased in, with Congress staying front and center and 
continuing to conduct oversight in this massive reorganization.
  We must insist on assurances that in granting more powers to this 
administration and to future administrations to investigate terrorism, 
we are not also granting powers to jeopardize the rights, privacy, or 
privileges of law-abiding citizens.
  We must insist on assurances that the constitutional rights of 
Americans remain protected. We must insist that the constitutional 
control of the purse by the Congress is not compromised.
  We must insist on assurances that Government reorganization will not 
be used as a convenient device to dismantle time-honored worker 
protections.
  We must insist on the preservation of our Government's constitutional 
system of checks and balances and separation of powers. We have a 
responsibility to do our very best as a nation to get this thing right. 
If we are going to create a new Department, let's get it right.
  We have a responsibility to ourselves and to future generations to 
ensure that, in our zeal to build a fortress against terrorism, we are 
not dismantling the fortress of our organic law--our Constitution--our 
liberties, and our American way of life.

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