[Congressional Record Volume 148, Number 118 (Wednesday, September 18, 2002)]
[Senate]
[Pages S8718-S8746]
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 1 
o'clock having arrived, the Senate will now resume consideration of 
H.R. 5005, which the clerk will report.
  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.

  The PRESIDING OFFICER (Mrs. Carnahan). The Senator from West 
Virginia.


                           Amendment No. 4644

  Mr. BYRD. Madam President, for the information of my colleagues, I 
have no intention of speaking at great length. I hope that other 
Senators will come to the floor and engage me--not necessarily engage 
me, but Senators will come to the floor and speak on the amendment 
either for or against.
  I would like to see other Senators who, I am sure, are as concerned 
about the pell-mell rush to ram the homeland security legislation 
through both Houses and put it on the President's desk before much time 
is to be had for debate and for a clear elucidation of the pros and 
cons with respect to my amendment. And there are other amendments by 
other Senators waiting. I also have some other amendments.
  I do invite other Senators on both sides of the aisle to come to the 
floor and participate with reference, hopefully, to my amendment.
  Yesterday, the administration and the congressional Republican 
leadership again chastised the Senate for not acting quickly enough to 
pass the President's homeland security measure.
  Said the very able Senate minority leader:

       I fear the Senate Democrats are fiddling while Rome has the 
     potential to burn.

  ``It's being talked to death,'' added White House spokesman, Ari 
Fleischer.
  We are said to have been debating this bill for 3 weeks now, 10 days 
of debate--3 weeks.
  Ten days of debate is not too long, something like 3 weeks. It takes 
3 weeks to hatch an egg. I believe the distinguished Senator from 
Tennessee would agree with me; we are both from the hill country. He is 
from the hill country of Tennessee, and I am from the hill country of 
West Virginia. It does not make any difference how much heat you apply 
to that egg, it still takes at least 3 weeks for that egg to hatch out. 
If I am wrong in that, I would like my colleague from Tennessee to tell 
me.
  We are talking about something that was hatched by four men, are we 
not, in the dark subterranean caverns of the White House?
  I think a bill of this importance should be debated long enough that 
the Senate will know and the people will know what we are talking 
about, what we are about to pass. This is no small piece of 
legislation. It is not legislation of little moment. It is very 
important legislation. In my speaking on this measure thus far, I have 
met with a great deal of apathy. I do not believe much attention is 
being paid to this bill. I had urged that we not act too fast to have 
this bill on the President's desk before the August recess or by the 
time the August recess began, and then there was the idea that we ought 
to pass it by September 11, the first anniversary of that tragic event 
which occurred in New York City. And I said, no, we need to take 
longer. I hoped that Senators would read the bill and that Senators' 
aides would read the bill and that the people over at the Congressional 
Reference Service, the legislative people over in the Library of 
Congress, would have an opportunity to read this bill before we voted 
on it.
  We have been debating this now for a few days. We look ahead to the 
appropriations bills that must be passed before the end of the fiscal 
year, the proposed adjournment date of October 6, and the November mid-
term elections. It seems to be a long time for deliberation on one 
bill, but merely having a bill on the floor or on the calendar and 
actually debating it are two different things. To have the bill before 
the Senate and to be actually debating it are two different things.
  I have my eye further ahead, years ahead, to future Congresses and 
future generations of Americans. I am trying to look ahead. To my way 
of thinking, the attention which this bill has received on this floor 
seems exceedingly brief. We are in the midst of an enormous 
undertaking. We are talking about enacting a massive reorganization of 
the Federal bureaucracy, a radical overhaul of our border security and 
immigration system, and a powerful new intelligence structure that may 
forever change the way Americans think about their own freedoms. It is 
a mighty huge responsibility that we are taking on, and we are 
endeavoring to do it all in one fell swoop: do it now, do it here. We 
have heard that advertisement on television: Do it now, do it here.
  I understand the pressures to move quickly today. We live in an age 
of instant coffee, instant replays, and instant messages. I suppose the 
drive for instant legislation is a natural outgrowth. But I prefer the 
taste of slow brewed coffee. And I like to study the fine print in 
legislation I am being asked to support.
  I would like to know, for instance, just exactly how many Federal 
workers will be employed at this new Department. I saw a recent article 
in The

[[Page S8719]]

Washington Post that mentioned that the new Transportation Security 
Administration was slated to employ 28,000 Federal screeners when it 
was first created by Congress just last November. But, its Inspector 
General has determined that the agency will actually need 63,000 
screeners--37,000 employees more than was originally anticipated. Wow. 
In less than a year, the size of that new agency has more than doubled.
  I would like to know, since the Transportation Security 
Administration is supposed to be moved  into the new Homeland Security 
Department, are these 63,000 screeners part of the 170,000 employees 
that we keep hearing will make up the new Department?

  I would like to know if any of them are from West Virginia, for 
example. I would think that other Senators would want to know if these 
Federal employees will be from their States. After all, we are being 
asked to trim back their worker protections. As for that matter, I 
would like to know just how many of the total number of affected 
Federal workers are from my State. Exactly how many are from each 
State? I think every Senator has a legitimate interest in knowing the 
answer to that and many other questions.
  Since we have seen the Transportation Security Agency employment 
figures rise so rapidly, I would be interested in learning if we can 
bank on that figure of 170,000 employees in the new Department or if 
that is just a rough ``guesstimate.''
  While we are at it, I would like to know just exactly why these 
particular 28 Federal agencies and offices were selected, out of the 
more than 100 that have homeland security functions, to be part of this 
grand new Department. The administration crafted its homeland security 
plan in secret, so the Congress has little knowledge of why the 
President chose these 28 agencies and offices to be transferred. Why 
these offices? Why these agencies? Why not other agencies?
  The Lieberman bill, like the House-passed bill, proposes to transfer 
to the Department the same 28 agencies and offices outlined in the 
President's plan. But the Governmental Affairs Committee has not 
developed any sort of criteria for why these agencies were chosen to be 
moved, other than the fact that they were identified in the President's 
proposal. Certainly, the Congress needs a better reason than that for 
transferring 28 agencies and offices and 170,000 employees.
  I considered the possibility that the answer to my question might lie 
in the definition of ``homeland security'' but then I do not believe I 
found in the Lieberman substitute bill a definition of homeland 
security. It may be there, but I am not sure. I have been studying this 
Lieberman bill and the House bill. The Lieberman bill is an improvement 
over the House bill. It is leap years ahead of the House bill, but I 
cannot remember having found a definition of homeland security in the 
Lieberman bill.
  Thinking, by the way, that such a definition was a pretty important 
thing to have in a piece of landmark legislation intended to address 
one of our Nation's most pressing challenges, I included a definition 
in my amendment.
  I would be interested to know why some of the Assistant Secretaries 
called for in this bill have no defined functions. Under Title I, the 
Lieberman bill creates five assistant secretary positions within the 
new Department, all of whom would have to be confirmed by the Senate, 
but grants the President the authority to define the functions and 
responsibilities of these assistant secretary positions when the 
President submits his appointees to the Senate for confirmation. Once 
confirmed by the Senate, the Lieberman plan authorizes the Homeland 
Security Secretary to assign those functions that the Secretary deems 
appropriate.
  The Congress should understand how the President plans to utilize 
these assistant secretaries before it creates their positions. What's 
more, it should define those responsibilities and functions in statute. 
Under the Lieberman plan, the President can broadly define the role of 
an assistant secretary, outside of the law, and, after the appointee 
has been confirmed by the Senate, the Secretary can alter that role, 
without regard to the intent of the Congress.
  I would like to inquire for workers in the chemical industry and the 
trucking industry just exactly who is going to determine how they are 
supposed to deal with hazardous materials. Will the Transportation 
Department still make rules for trucking hazardous cargo or will all 
that now fall under the purview of the new Department? Are chemical 
plants to be subject to the powers at Homeland Security or the 
Environmental Protection Agency or will all of these regulatory matters 
be sorted out in arm-wrestling matches?
  I do not believe that we have taken enough care in this bill to 
clearly define what we are authorizing the executive to do, and that is 
exactly how the President would have it. The administration wants us to 
be careless in our legislation so it can be reckless in its 
implementation. The administration does not want to be constrained by a 
specific plan, whether crafted in the White House or in the Congress, 
because the administration does not want to be pinned down on the 
details of its policies or the specifics of its actions.
  A favorite piece of reading material for this administration 
apparently is ``Gulliver's Travels,'' where we read about the 
Lilliputians. That is a great piece of literature; I have liked it over 
the years. But we have heard various Secretaries in this administration 
and other high officials in this administration indicate that they are 
very fretful, they are very irritated by the fact they are being asked 
to abide by certain rules. These have been longstanding rules. So the 
administration does not want to be tied down by any rules. We have 
heard them tell the story of the Lilliputians a number of times. So 
they do not want to be pinned down. This administration does not want 
to be pinned down by any rules, not pinned down on the details of its 
policies or the specifics of its actions.
  President Bush has pressured Congress to act quickly on his proposal, 
insisting that because homeland security has become his top priority 
for the Federal Government, Congress must immediately provide him the 
resources and flexibility that he is demanding.
  The House of Representatives passed legislation approving most of the 
proposal only 38 days after he submitted it to Congress. The House of 
Representatives passed the legislation in 2 days. Why, it would take 
longer than that in some communities in this Congress, some cities in 
this country. It would take longer than that to get a sewage permit. It 
would take longer than 2 days to get a sewage permit in some parts of 
the country. And perhaps for good reason. They passed a piece of 
legislation such as this with its far-reaching ramifications in 2 days 
in the other body.
  I cannot see how either House of Congress can properly consider the 
merits of a new Department of Government and the transfer of 28 Federal 
agencies in 1 month's time, especially when the stakes are so high. But 
here we are with a bill before us; the clock is ticking.
  I know Chairman Lieberman and his committee have spent many hours on 
this bill. They have far more expertise on the subject matter than I 
have. I am not a member of that committee. I am not a member of any 
committee that has jurisdiction over this subject matter per se. 
Senator Stevens and I were very concerned about some of the language in 
the House bill, certainly, in his administration proposal, about what 
would happen to the legislative process, how the constitutional 
process, the power of the purse, was being changed by the proposed 
legislation. So Senator Stevens and I wrote to Senator Lieberman and to 
Senator Thompson and asked that change be made in their legislation 
before they reported it to protect the legislative process as we have 
known it for over two centuries.
  They worked hard. Senator Lieberman and Senator Thompson worked very 
hard to craft the best bill they could craft under the circumstances. 
They have made a number of important improvements to the bill passed by 
the House. I thank the committee again, as I have thanked the committee 
before on several occasions, and its staff, for their efforts. But the 
stakes are so high and I believe we would be better off if we took 
further opportunities to look at the details, to study the details, to 
talk about ways to fill in the details. Let us remember with this 
legislation the Senate will be shaping not only the mission and the

[[Page S8720]]

structure of the new Department but also the relationship that Congress 
will have with the Department during its lengthy transition period and 
throughout the process of making and implementing homeland security 
policy.
  This legislation is going to be around quite a long time, in all 
likelihood, and the protections that I am interested in having in this 
legislation are protections for the rainy day, as well as for the day 
of sunshine, protections for our vital processes. These are the details 
that will be with us a long time. Whether it is a Democratic 
administration or a Republican administration, I should think we would 
all want to see what is best for the country, what is best for our 
children and grandchildren. If we are going to pass something, let it 
be well thought out, knowing, as I do know, that this legislation is 
going to be around for a long time.
  We have heard that the war on terrorism is going to be a long time in 
its duration. I don't doubt that. We have spent nearly $20 billion in 
Afghanistan thus far, and we don't know whether Bin Laden is alive or 
dead. So this will be around for a long time.
  This President and his administration, hurrying today to just have us 
turn this matter over to them, may not be around. Who knows. This 
President may be here 2 more years after this year or he may be here 6 
more years or he may be here 8 more years. Who knows. Only God knows. 
There may be a Democratic President, a Democratic administration, there 
may be a Democratic House at some point. So I think we should not act 
with our blinders on and act only for partisan reasons because at the 
moment there is a Republican administration in the White House. We must 
not hurry this through just to get a bill through, to meet a certain 
date.

  As Senator Lieberman and I and others have said, we need to do it 
right. That is what I assume is the responsibility of every Senator, to 
do what he can to improve this bill, if it can be improved. I have 
never seen a bill that came to the Senate floor that couldn't be 
improved. Every appropriations bill that was reported to the Senate 
floor by my Appropriations Committee, of which I am the chairman, is 
always subject to amendments, and many amendments are offered and acted 
upon favorably. So we have room for improvement.
  I do not come here as an adversary of Senator Lieberman. I do not 
think my amendment is adversarial to his bill. I think that, even 
though his bill is a great improvement over the House bill, there is 
room for further improvement. That is not saying anything I think 
anyone would be offended by on his committee. I have heard of no such 
offense.
  That is our job here, to do the best we can to come out at the end of 
the day with the finest product, the best product this Senate is 
capable of. We are talking about homeland security, the security of the 
people in this country. We must recognize that there is real work to be 
done by the Senate to make sure that all of the agencies are moved into 
the Department and that it is all done in a responsible way.
  I understand the eagerness to pass a strong bill in order to make a 
strong statement. We all want to assure the public that we are acting 
decisively to secure the public's safety. No one wants to be portrayed 
as standing in the way of greater security on American soil. President 
Bush would have us believe he can simply create this Department out of 
thin air, as if by magic. It wasn't too long ago that this President 
and the Director of Homeland Security, Mr. Ridge, were saying: We don't 
need another Department. Why have another Department? Why have another 
Department?
  Well, that is a long story. We went about, up the hill and down the 
hill, on the business of having the Director of Homeland Security, Mr. 
Ridge, come up before the Senate Appropriations Committee and testify 
on the budget. And of course the administration put its foot down hard. 
They didn't want that done. So we have sought that in that 
Appropriations Committee, Mr. Stevens and I--we have on one occasion 
put language into an appropriations bill requiring the Director of 
Homeland Security to be confirmed by the Senate.
  When the administration saw that Mack truck coming down the road--
that bill was brought to the Senate, and it passed by a majority, a 
great majority; 71 Senators voted for it. Not one Senator objected to 
that language. Not one Senator offered an amendment to strike that 
language. So the administration saw that Mack truck coming and, lo and 
behold, the administration decided: Oh, we have to get in front of that 
wave. And then they came up with this marvelous piece of brainwork. It 
came from just four men in the bowels of the White House. They came up 
with this marvelous piece of magic. And now they want it passed in a 
hurry to create this Department of Homeland Security--which, not too 
long ago, as I say, the President did not seem to want, to create a 
Homeland Security Department, nor did Mr. Ridge.
  Well, a little wave of his magic wand, a few magic words to the 
press, and poof, the President pulls a new Department out of his hat.
  That is the old vaudeville stunt, a new rabbit out of the hat. Don't 
watch my right hand, watch my left hand. Watch what my left hand is 
doing. Don't pay any attention to my right hand. All of a sudden, he 
pulls a rabbit out of the hat.
  The President pulls a new department out of his hat. But after the 
President's sleight of hand is over and the smoke clears from the 
stage, the task of replacing political magic with real management will 
begin.
  I have often urged my colleagues to look to history as a guide to the 
future. There is much to be learned from the successes and the failures 
of our forefathers and we would do well to take the countenance of the 
past. I realize that everybody shares my love of history or see the 
past's connection with today and I am disappointed. But I am 
disconcerted when we fail to learn from our own experiences.
  Last October, nearly half the Senate was thrown into disarray as the 
Hart Building was closed due to anthrax contamination.
  I was shut out of my office. My staff were shut out of my office in 
the Hart Building. Many Senators were shut out of their offices, barred 
from our mainframes, our fax machines, our files. Our staffs were 
relocated, with new phones, new computers, new fax machines. Staff 
members couldn't reach each other, let alone our constituents. We 
scrambled to find ways to ensure a continuation of constituent 
services.
  We saw how difficult it was to set up new quarters and make our 
offices functional again. But this bill before us is our anthrax 
experience many times over. And this time, the work that will be 
interrupted may be work that would prevent the loss of thousands more 
lives in another terrorist attack. I think it is worth the time to 
ensure that this agency is formed in the right way, from the ground up. 
We should take the time to work out the kinks before launching it.
  Like so many government reorganizations before it, this legislation 
lumps together a number of disparate agencies and slaps a new sign 
across them. It does nothing to fill in the details of a very sketchy 
plan. It does nothing to resolve the inevitable problems that lie 
ahead. It is an opportunity to get off the hook easily. Pass something; 
claim the credit for passing the legislation in the upcoming election. 
That is probably part of the idea--claim credit for that. Go out to the 
American people and say: The Senate acted. We worked out a new plan. 
But it does nothing to resolve the inevitable problems that lie ahead. 
But I, for one, think we owe more to the American people than that. I 
think we owe more to them than that.

  If the aim here is only to speed implementation of homeland security 
matters, let us do something to ensure that this administration and the 
Congress are not allowed to let development of the Department languish.
  Most agree that we should act now to set the wheels in motion for a 
new Department, but we should not kid ourselves about what we are doing 
with this legislation.
  The President and the Secretary of Homeland Security--if we pass the 
House bill--certainly will have the whole kit and caboodle. Congress 
will just walk off to the sideline. And, to a certain extent, the same 
is true with the bill that has been adopted by the committee chaired so 
ably by Mr. Lieberman.

[[Page S8721]]

  The President and the Secretary of Homeland Security will have to 
transfer 28 agencies--some say 22, some say 30--create 6 new 
directorates, and coordinate information and resources from countless 
Federal, State, and local agencies and private corporations. The 
administration expects Congress to hand over a blank check. They may do 
that in some States. Maybe the President is accustomed to having it 
that way in Texas. I do not know. I suppose there have been Governors 
in West Virginia who believed they might be entitled to a blank check 
on something. But we are not talking about something at the State 
level. This is the Federal level, and it is the Federal Constitution to 
which we have to pay very close attention.
  The Administration expects Congress to hand over a blank check to 
craft this Department without additional guidance during 
implementation.
  This expectation is not only unrealistic, it is irresponsible.
  If the Senate adopts the President's proposal without making further 
efforts to improve it, we will have copped out! If this Senate is not 
willing to put in the time and attention that this new Department 
undoubtedly requires, I have to wonder whether we are really serious 
about investing responsibly in a long-term federal response to homeland 
security threats at all. I hope this is not all just for show!
  Is that what it is? Is it all for show? Just rush the bill through so 
that we can say to the voters: Oh, the Senate has passed the homeland 
security bill. I hope it is not all for show.
  The Senate must take a responsible approach toward enacting the 
President's proposal. If the Department of Homeland Security is worth 
doing, it is worth doing right, and both Houses of Congress must act 
deliberately to see that this Department gets up and running properly 
and expeditiously.
  To ensure that all of these agencies and Federal workers are being 
moved to the right places for the right reasons, we will have to set 
the stage for our work after this bill is enacted. If we give the 
President blanket authority to transfer and reorganize these agencies 
without further action by Congress, the Department's transition will 
certainly suffer under a clumsy, trial-and-error approach that has been 
the death knell for so many other important government efforts before 
it. It will take a lot of work to get this Department where it needs to 
be, and Congress should not buy in to the empty promises of a one-time 
fix for all of the federal government's homeland security functions. We 
must sign up for the long haul now.
  Any good carpenter knows that he will save himself a lot of headaches 
if he takes the time to measure twice and cut once. But in the midst of 
this enormous building project we have undertaken to construct a new 
department of government, no one is bothering to make even a rough 
measure of the actions we are taking.

  Even if we wanted to do so, we would have nothing to measure against, 
because the President has not given us any workable blueprints laying 
out the architectural details of the Homeland Security Department. The 
President just shouts at us to keep building, because he wants a home 
for his secret war as soon as possible.
  And by including all of these hurried agency transfers in his 
proposal, President Bush is trying to move in the furniture into this 
new home before he has even finished putting a roof over the 
Department. Given his success in pushing through his proposal, this may 
truly be the house that George built, and, if we don't hold our own 
feet to the flames, Congress will spend years making repairs to this 
hastily designed and poorly built structure. If his commitment to 
protecting homeland security is not strong enough to endure 
congressional involvement and public scrutiny, then our security is in 
serious jeopardy. And if the President's policies are not sound enough 
to survive the constitutional process, then we would probably be more 
secure without them.
  Securing the safety of the American people in their own homeland will 
be the most important challenge of our time, and it will require 
responsible leadership both from the White House and from the Congress. 
Such leadership does not consist of hollow political solutions and 
public relations campaigns. When the lives of our citizens are on the 
line, we have a duty to rise above public approval polls and make the 
hard decisions about how best to protect the country's long-term 
interests. The President is asking us to establish the Department of 
Homeland Security without making these decisions, and without any clear 
evidence from the White House that he is willing to make the hard 
decisions under the processes required by the Constitution.
  Congress must require of the President and of itself more than a 
single, open-ended plan for a new department with broad authority and a 
vague mission. Congress cannot allow the President to conceal his 
failure to produce a comprehensive homeland security strategy behind 
the smoke and mirrors of ``managerial flexibility.'' If we are serious 
about formulating a real response to these new threats, we must press 
ahead to fill in all the details.
  The amendment that I will be offering provides a process by which the 
Congress remains involved in implementation of the Department.
  With the Byrd amendment, the Lieberman bill would immediately create 
the superstructure for a new Homeland Security Department, including 
the executive positions and directorates outlined in Title I of the 
Lieberman substitute but require additional legislation to transfer the 
agencies, functions, and employees to the new Department.
  The amendment that I shall offer would establish a process that would 
allow the Congress to act within the same implementation time frame--13 
months--outlined by the House-passed bill and the Lieberman substitute.
  Beginning on February 3, 2003, the Homeland Security Secretary would 
submit recommendations for legislation to the Congress, which would be 
referred to the Governmental Affairs Committee in the Senate and the 
Government Reform Committee in the House, to transfer agencies, 
functions, and employees to the Directorate of Border and 
Transportation Protection; 120 days later, the Homeland Security 
Secretary would submit recommendations for legislation to transfer 
functions and agencies into the Directorate of Intelligence and 
Directorate of Critical Infrastructure Protection; 120 days later, the 
Homeland Security Secretary will submit recommendations for legislation 
to transfer agencies and functions to the Directorate of Emergency 
Preparedness and Response and the Directorate of Science and 
Technology.
  The Byrd amendment gives Congress additional opportunities to work 
through the details about worker protections, civil liberties, privacy, 
secrecy, and about which agencies and functions should be transferred 
to the new Department.
  Additionally, the Byrd amendment would give Congress the opportunity 
to gauge and modify how the new Department is being implemented, while 
it drafts legislation to transfer additional functions and agencies. 
The Byrd amendment would provide Congress with additional means to head 
off problems that traditionally plague and delay massive 
reorganizations.
  I have defined as well as I could in this time my amendment.
  I send the amendment to the desk.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from West Virginia [Mr. Byrd] proposes an 
     amendment numbered 4644.

  Mr. BYRD. Madam President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The text of the amendment is printed in today's Record under ``Text 
of Amendments.'')
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. Madam President, I ask for the yeas and nays on the 
amendment.
  The PRESIDING OFFICER. Is there a sufficient second?
  At the moment there is not a sufficient second.
  The Senator from West Virginia.
  Mr. BYRD. I yield the floor.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. LIEBERMAN. Madam President, I rise to speak against the amendment 
which the distinguished Senator from West Virginia has offered. I do 
so, of

[[Page S8722]]

course, with great respect for him personally, for his record of 
service to our country, for his record of leadership in the Senate, and 
for all that this Senator--and I would say every Senator--learns from 
him just about every day here.
  I rise to speak against the amendment. I am going to try to speak 
clearly about why I feel so strongly against this amendment, but I 
certainly hope the Senator from West Virginia will understand, and 
colleagues as well, that I do it with great respect.
  Senator Byrd has been good enough to express his appreciation for 
many parts of the amendment which is the proposal that emerged from the 
Senate Governmental Affairs Committee, which I am privileged to chair, 
by a 12-to-5 bipartisan vote at the end of July. I appreciate those 
kind words.
  But I must say that though Senator Byrd has said his intentions are 
not adversarial to the committee-reported proposal for a Department of 
Homeland Security, it seems to me that adoption of Senator Byrd's 
amendment would eviscerate our proposal. It would, as he has described 
it, create a superstructure, a kind of house--create the exterior of 
the house--but there would not be much in the house. There might be an 
attic, with the Secretary and some of the executives up there, but 
nothing underneath for at least a year, and probably well beyond that, 
to better protect the security of the American people here at home.
  So this amendment, though it preserves the superstructure, strikes at 
the heart of what the Senate Governmental Affairs Committee has been 
working to bring forth for well over a year now.

  We began our investigations on the problem of homeland security 
before September 11 of last year. We held hearings on matters related 
to homeland security before September 11. In fact, we had a hearing 
scheduled for September 12 on one aspect of homeland security, and we 
went forward with it as best we could. Half the witnesses could not 
make it to Washington.
  We labored, in the weeks and months after September 11, holding 18 
different hearings. In October, Senator Specter and I, introduced--in 
October of 2001, almost a year ago--legislation to create a Department 
of Homeland Security. In fairness, that legislation was based, in good 
part, on the work of a citizens' commission headed by our former 
colleagues Gary Hart and Warren Rudman. And they had been working on it 
since the early part of 2000.
  In May of this year, our committee reported that bill that Senator 
Specter and I had introduced, together with a companion bill Senator 
Graham had introduced, amended and approved by the committee itself by 
a 9-to-7 vote--unfortunately, a vote on partisan lines. All the 
Democratic members voted for the bill. All the Republican members, at 
that time, voted against it.
  In June of this year--June 6, I believe it was--President Bush, after 
all the months before then in which the President and his 
administration had said an Office of Homeland Security, as filled by 
Governor Ridge, was enough to deal with the new challenges of homeland 
security--changed his mind. And I admire him for that, and I appreciate 
that. And I think he reached a conclusion that it would take more than 
an office--without statutory power, without budget authority--to meet 
the challenge that terrorists placed on his shoulders, and ours, to 
protect the security of the American people.
  My friend and distinguished colleague from West Virginia said the 
President pulled this bill out of a hat. Well, if he pulled it out of a 
hat, it was a hat that belonged to the Senate Governmental Affairs 
Committee because so much of the proposal that the President ultimately 
made is exactly the same as the bill that was reported out of our 
committee in May.
  That is why I have said, all along, that probably 90 percent of the 
various proposals here--the committee proposal, the President's 
proposal--are in agreement with one another. And we are arguing over a 
small number of issues, not insignificant issues, but relatively small 
in number compared to all we agree on. We worked to take some of the 
ideas the President had and added them to our bill. Still, it is mostly 
the same bill as our committee reported out at the end of May.
  Then at the end of July--July 24 and 25--we had two very productive, 
extensive days of committee deliberation, a so-called markup, in which 
we were quite open to suggestions that had been made by Members of the 
Senate. I myself consulted with the various chairmen of relevant 
committees. Senator Thompson spoke to the ranking minority members, 
ranking Republicans on the committees. We built a better package and 
reported it out on July 25. Not perfect. As the Senator from West 
Virginia quite accurately says, no legislation that is brought before 
this Senate is perfect; it always can stand amendment, including this 
proposal.
  But I must say again, with all respect, that the Byrd amendment would 
basically pull out of the bill most of the hard work our committee has 
done. It would again frame questions that our committee has worked now 
almost a year to answer and has presented to the Senate our best 
considered judgment about what the answers to those questions should 
be. And the basic question is, How can we best protect the security of 
the American people after September 11 against terrorism and threats to 
their security?

  Senator Byrd's amendment reminds me of those board games I played as 
a child, and sometimes occasionally still do with children or 
grandchildren, where, when you hit a certain box, they tell you to go 
back to the beginning and start all over again. That is what adoption 
of this amendment would do. It would obviate all the work we have done. 
It would essentially say that the answers we came up with were not 
adequate. And it would establish a system where the administration, 
over the next year, would basically try to fill a house that is now 
empty in the Byrd amendment. Underneath the attic, where the Secretary 
and a few of the executives are, there is nothing to protect the 
security of the American people.
  The administration would be required to submit--beginning early in 
February of next year, and every 4 months thereafter--proposals for 
filling in that structure. But the requirements of the Byrd amendment 
say that not earlier than February 3 of next year, and succeeding 120 
days thereafter, would the administration be able to submit the inner 
workings of the Department. And there is no clear time limit as to when 
this Department would be up and running.
  I gather that the Senator has modified or will modify his amendment 
to say that Congress must act on the administration's proposals for 
what will happen in five of the six divisions of the Department by 13 
months after the effective date of the underlying legislation--
that date chosen, I presume, 13 months, because our legislation says 
that the full Department must be up and running 13 months after the 
effective date.

  The passage of the Byrd amendment would give the American people no 
guarantee that they would have a Department of Homeland Security, 
protecting them better than we protected them on September 11, in any 
time that is measurable.
  I have a personal sense of urgency. Senator Byrd has spoken to it. We 
want to better protect the security of the American people. This is an 
important assignment we have taken on to create this Department. But 
this is an assignment that comes with a sense of urgency.
  The terrorists are out there. We read every day about it, either 
about apprehensions or arrests of terrorists in various parts of the 
world. As I have said before on the floor, we defeated the Taliban in 
Afghanistan. We disrupted the al-Qaida bases there. But so many of them 
fled, and they are out there. They are not an army that we can see as a 
conventional army on battlefields. They are not in ships that we can 
observe at sea. They are hiding in the shadows of this world, in 
foreign countries, in our country. That is why I say that every day we 
go without a better organization of the various critical departments 
that are supposed to be protecting the homeland security of the 
American people is a day of greater danger for the people.
  It is with that sense of urgency that our committee has brought 
forward our proposal. And this amendment, if passed, would take the 
heart out of the

[[Page S8723]]

proposal and delay its implementation to a day that cannot be measured. 
That is wrong. I oppose the amendment with the greatest respect but 
with the greatest sincerity and intensity.
  I ask my colleagues, any of whom are thinking about voting for this 
amendment, to explain on the floor and to their constituents how they 
could support this amendment and still say they are committed to the 
creation of a Department of Homeland Security with a sense of urgency 
that the reality of the terrorist threat requires.
  This amendment would establish a Department of Homeland Security and 
a Secretary with the missions and responsibilities virtually untouched. 
It would also retain the basic administrative structure of the 
Department, as the Governmental Affairs Committee proposal has 
proposed.
  The amendment also creates the same six directorates as in our bill, 
each to be headed by an Under Secretary. But as I have said, there is 
nothing else in this amendment within five of those six directorates. 
The one exception is the Immigration and Naturalization Service 
directorate. There are no responsibilities, no mission statements 
effectively, no transferred agencies.
  The amendment does call, as I have said, for the Secretary of the new 
Department to submit to Congress, over the course of the next year, a 
series of legislative proposals to further the mission of the 
Department, including recommendations for the transfer of 
``authorities, functions, personnel, assets, agencies, or entities into 
the various directorates.''
  These proposals to be provided to the Congress by the Secretary would 
be responsible for filling in the house. That includes not only the 
precise list of agencies and programs to be transferred to the new 
Department but an enumeration of all the responsibilities of the new 
Department, including the fundamental policy decisions about the 
Department's most basic missions.
  I have talked about the deadline for Congress to act. It is unusual, 
I say with some humility, for one Congress to attempt to bind another 
Congress to act. Is it enforceable? Can we have any sense of assurance, 
if the Byrd amendment passed, that Congress would act on the various 
proposals of the President 13 months after the effective day, which 
would probably take us to 2004? I don't see that in this amendment. 
Remember, in the underlying committee proposal, the Department is 
created. The effective date of the legislation begins 30 days after it 
is signed and becomes effective. The Department begins to take shape. 
The administration then has 12 months after that to complete the full 
implementation of the new Department, to bring all the 170,000 
employees together to get the Department up and running, to overcome 
the inefficiencies, to bridge the gaps that exist, to create the new 
divisions of this Department that we desperately need.
  As to intelligence, for instance, there is still no place in our 
Federal Government where all the proverbial dots are connected from law 
enforcement and intelligence. That is an urgent need we have.
  If the committee's proposal is adopted, the new Secretary of Homeland 
Security would be authorized to do that immediately. All we say is by 
the expiration of 12 months from the effective date of the legislation; 
therefore, 13 months after the President's signature, all of this would 
be completed.
  Set that aside from what would happen in the case of the Byrd 
amendment, in which the only guarantee we have is essentially a hope 
that Congress will have acted on the administration's proposals 13 
months after the Department is created. That is just not enough.
  This is no time for us to replace the carefully considered bipartisan 
legislation that emerged from our committee with this structure without 
content that may never turn into a genuine Homeland Security 
Department, with the power, the personnel, and the resources it needs 
to protect the American people from terrorism.
  Mr. BYRD. Madam President, I did not want to interrupt the 
distinguished Senator. I will be happy to wait until he finishes his 
statement, but whenever he is ready to be interrupted, I would like to 
get his attention.
  Mr. LIEBERMAN. I thank the Senator from West Virginia. I would like 
to complete my statement. Then I will be glad to respond to any 
comments or questions he has.
  Let me make three general points about what troubles me about the 
amendment.
  First, the amendment destroys what might be called the holistic 
design of a new Department. By that I mean the whole will be greater 
than the sum of its parts. Indeed, since the very beginning, the entire 
purpose of formulating this Department has been to create a cohesive 
and unified organization in which all the pieces fit together tightly 
with all the other pieces. We have strived to bring to our legislation 
a global understanding of the capabilities our Government has and the 
capabilities it currently lacks. We have thought carefully about the 
interrelationships of the different agencies and directorates that will 
make up the Department.
  The result, I am confident, is a Department in which the six 
constituent divisions strengthen one another such that the whole is 
greater than the sum of the parts. Splitting this Department into a 
number of separate pieces that will be created in organizational 
isolation from each other will undercut the wide angle focus that is 
necessary for us to best meet the terrorist threat.
  We will revert to essentially creating a number of different 
divisions that are linked to one another in name but not necessarily in 
function. In the process, I fear the Byrd amendment will threaten one 
of the core purposes of a single Department of Homeland Security under 
a unified chain of command; that is, namely, to leverage the benefits 
of bringing together these 28 different agencies and programs in a 
synergy, in a way that the whole is greater than the sum of the parts.
  Pulling the pieces apart and rebuilding them will lose that 
understanding of our capabilities. Just think about the pieces of the 
new Department that will need to work together every day. I cite the 
intelligence directorate again. It is going to communicate with the 
directorate on critical infrastructure protection and on border 
transportation security, and it is going to need to develop threat 
assessment and threat dissemination systems and protocols.
  The directorate on science and technology will need to learn from the 
directorate on emergency preparedness and response precisely what 
technologies are required at the Federal and local level, and then we 
will have to develop an action plan to deploy those technologies. Every 
directorate in the organization will have to draw on the science and 
technology directorate's expertise for critical analysis and 
decisionmaking regarding scientific or technical issues.
  This Department should work like a carefully crafted machine with 
interlocking gears. If we conceive of it as six separate gears turning 
in isolation from one another, we are going to drastically diminish its 
effectiveness. I fear the process that the Byrd amendment would set up 
will do just that.
  Second, I know there was a concern expressed on the floor and off the 
floor that the committee's proposal for a new Department of Homeland 
Security fails to put in place adequate checks and balances on 
executive authority. I disagree. Those checks and balances and the 
desirability of them in our system of government were very much in our 
mind as we proceeded with this legislation. In fact, we gained great 
insight and assistance from Members of the Senate as we crafted this 
legislation, particularly the senior Senators from West Virginia and 
Alaska who brought not only their considerable experience but their 
love for the Senate and devotion to the concept of checks and balances, 
which assisted us in crafting our amendment.
  So we have gone to great lengths to ensure that the Congress will 
remain actively engaged in the life of this Department--not just in the 
traditional way in which Congress, in some senses, always has the last 
word, which is through the appropriations process, but through the 
transition process as this legislation becomes law. We have very 
important work to do with the executive branch and the transition 
process of this new Department. We have to make sure the reorganization 
is proceeding apace. We have to make further changes in law, if and 
when such changes are needed. We have to finance

[[Page S8724]]

the new Department, consistent with its needs, as determined in the 
first instance by the Appropriations Committees of both bodies and, of 
course, by the membership of both bodies. And we have to make sure that 
critical, nonhomeland security functions of the constituent agencies 
don't fall through the bureaucratic cracks.
  That is why we have specifically required that the administration 
come back to Congress at least every 6 months during the reorganization 
process to update us and the American people on the progress being made 
and, if necessary, to request that we make additional amendments and 
improvements. The committee members are well aware of the complexity 
and the enormity of what we are proposing. So these required reports 
during the reorganization process should give Congress an opportunity--
our committee first and then Congress--to assess the progress and make 
necessary adjustments.
  The important point here is to get started. No one--least of all me--
thinks this is going to be a perfect proposal. It will be a work in 
progress. To make it progress as rapidly and perfectly as we want, we 
are going to have to work together--Executive and Congress--in making 
that so. Our interest in guaranteeing proactive congressional oversight 
is spelled out in even more detail in our proposal.

  Contrary to the President's proposal, which originally sought to give 
the executive branch unchecked authority to reorganize the constituent 
agencies within the new Department and unprecedented power to move 
between 3 and 5 percent of funds appropriated to the constituent 
agencies of this Department, we have taken a very different path and 
rejected those requests from the administration. We will insist on the 
accountability of the appropriations process. We understand the 
Constitution gives Congress--and only Congress--the responsibility to 
appropriate the expenditure of the public's money.
  So we have specifically rejected the administration's calls for 
broad, unchecked power to move public money around without the consent 
of Congress. We have said that while the administration can reorganize 
agencies within the new Department to the extent that it does not 
conflict with existing law, if the administration wants to change 
existing law, contrary to its proposal originally, we require it to 
come back to us for approval to do that. Congress cannot delegate to 
the Executive the authority to obviate statutes that are on our books 
without the consent of Congress. That, of course, is an affirmation of 
the importance of ongoing congressional involvement in an approval of 
the reorganization process.
  I know Senator Byrd is concerned about the speed with which this is 
moving forward. I believe this is not moving forward near rapidly 
enough. I know he has a historic and proud concern about Congress 
yielding too much authority to the executive branch, and I share that 
concern. My strong reassurance to him, and to the other Members of the 
Senate, is that the Senate Governmental Affairs Committee proposal does 
what Congress has done since its creation, since its beginning, which 
is to legislate, create a new Department, but not to give that 
Department unchecked authority to go forward but to require it to come 
back for appropriations and require it to live within the law. And if 
it decides, as it goes forward, that it needs to alter the law, then, 
of course, it must come back to us and not be allowed to waive laws and 
repeal them on its own, as it originally asked to do. Congress will 
remain, under our proposal--a careful, measured proposal--an active and 
aggressive board of directors overseeing this merger every step of the 
way.
  Third, this amendment is based on the faulty assumption that we have 
written our legislation hastily, without due consideration of exactly 
how the Department ought to be structured. As I said at the outset, the 
fact is we have been working for nearly a year and, in some cases more 
than a year, to determine what this Department should look like, and to 
do everything humanly possible to prevent another September 11-type 
attack.
  We have studied these issues exhaustively. We have considered the 
implications rigorously, and we have written this legislation 
carefully. Now, any Member of the Senate has the right, of course, to 
come out and say that a given part of our proposal is not quite right 
and not what it should be, and that is what the amendment process is 
all about.
  Of course, there have been many amendments filed that go exactly to 
that point. What Senator Byrd's amendment does is to remove the 
fruits--all the fruits pretty much--from the tree, except the very few 
at the top, that we have nourished and worked so hard to cultivate over 
this year.
  (Mrs. CLINTON assumed the Chair.)
  Mr. LIEBERMAN. Madam President, long before September 11, our 
committee had been interested in homeland security. In July of 2001, we 
held a hearing on FEMA's role on managing bioterrorist attacks. In July 
2001, we had been studying whether our Government was adequately 
organized to protect critical infrastructure and, unrelated to the 
attacks, had scheduled a hearing on that subject for September 12. The 
day after the planes crashed into the Pentagon, the World Trade Center 
Towers and the field in Pennsylvania, that hearing was held in a 
context we never could have imagined.
  About a year ago, we began crafting the precursor of the legislation 
we are now considering. On October 11 of last year, Senator Specter and 
I introduced our bill to create a Cabinet-level Homeland Security 
Department. In May, we merged it with strong legislation that had been 
proposed in September by Senator Graham of Florida. And on May 22, we 
reported that legislation out of committee by a vote of 9 to 7.
  Since the President announced his support for a Department of 
Homeland Security on June 6, we have worked closely and collaboratively 
with committee chairs and ranking members, with fellow members of the 
Governmental Affairs Committee without regard to party, with experts in 
the field, and with the White House.
  We have incorporated bipartisan proposals for restructuring the INS 
and reforming the civil service system--the first proposed by Senators 
Kennedy and Brownback; the second proposed by Senators Akaka and 
Voinovich--drawing on years of effort to build a consensus on those key 
issues.
  All told, we held in our committee 18 hearings and heard from 85 
witnesses on these issues. Every step of the way, we have been open to 
and accepted sensible compromises and incorporated new ideas 
recommended by people inside and outside the committee based on merits, 
based on the purpose of this legislation, based on the urgency post-
September 11 of protecting the security of the American people.
  The bill that emerged from this process earned the strong bipartisan 
support of the Governmental Affairs Committee. In 2 days of work on 
July 24 and 25, we debated the legislation, we incorporated many 
amendments, and we endorsed it by a bipartisan vote of 12 to 5.
  In essence, this legislation--its core elements anyway--have now been 
approved twice by the Governmental Affairs Committee. That is not a 
hasty process. That is work that has been done by the committee over a 
long period of time.
  I must say, as I consider Senator Byrd's amendment, I am reacting as 
a proud chairman, one who has worked very hard with members of both 
parties in committee to bring forth this legislation. It is not 
perfect. It is open to amendment. Let the body have its will. But I ask 
Senator Byrd and any other Member of the Senate, chairman or ranking 
member, to think how they would react if, after having worked so hard 
on a piece of legislation that they believe is urgently needed in the 
interest of the security of the American people, they were faced with 
an amendment that took most of it out. It would be as if an 
appropriations subcommittee bill came to the floor and a Senator got up 
and kept the sum total but switched all the money around or, more 
relevant, said: A little bit at the top can be spent; the rest cannot 
be spent until the administration comes back next year and tells us how 
they want to spend it.

  If I am feeling deeply about this amendment, with all respect to its 
sponsor, it is because I feel deeply about the need for a Department of

[[Page S8725]]

Homeland Security as soon as possible. Each directorate has taken shape 
over time as we proposed them to respond to the best evidence of what 
will work from experts and from colleagues.
  We began with a model that closely resembled what was proposed in the 
Hart-Rudman Commission on National Security in the 21st century, which 
itself was the product of 3 years of work and the insight of many of 
the top national security minds in our Nation. That was our first 
framework.
  Then in the months that followed, we drew on the lessons learned from 
our hearings and from countless other reports and hearings and from 
additional hours of staff research on these issues to refine and 
improve the initial vision of the Department. We collaborated closely 
with our colleagues on both sides of the aisle. And since June, when 
President Bush announced his support for this Department, we have 
worked with the White House in incorporating parts of its ideas into 
this proposal.
  Each directorate evolved as we tried to bring together just the right 
agencies and offices needed to counter the terrorist threat at home. 
That is why I say that the Byrd amendment is like a children's board 
game: When you hit a certain box, it says: Go back to the beginning and 
start again.
  That is awfully frustrating for Senator Thompson and me and other 
members of our committee who have worked so hard to put these 
directorates together.
  The directorate on border and transportation security, for example, 
started out with a blueprint very similar to that recommended by the 
Hart-Rudman Commission. It included the Coast Guard, Customs, and the 
Border Patrol. But over time, in our committee, we came to be educated 
and to a conclusion that the original proposal was not adequate, was 
not complete.
  We heard from experts that the Animal and Plant Health Inspection 
Services, in the U.S. Department of Agriculture, had a critical role at 
ports and borders and ought to be integrated with the other agencies. 
So we moved APHIS into the directorate.
  We were persuaded the entire INS should also be brought over to 
ensure ongoing coordination with all immigration and border activities 
and between immigration enforcement and services. So we brought INS 
into the new Department while subjecting it to the substantial 
bipartisan restructuring it desperately needed, according to the 
Kennedy-Brownback legislation, and giving it accountability--because 
most everybody agrees that the INS is an agency that is not functioning 
as we want it to--by placing it in its own directorate with direct 
access to the Secretary and the Under Secretary of the new Department.
  As another example, the directorate on emergency preparedness and 
response began, again, in accordance with the Hart-Rudman 
recommendations, with FEMA at its core. But over time, the directorate 
was expanded to include other vital offices with a central role in 
preparing for and responding to potential terrorist attacks: the Select 
Agent Registration Enforcement Program, which plays a central role in 
the wake of public health emergencies; the Strategic National 
Stockpile, the Office of Domestic Preparedness from the Department of 
Justice, the Office of Emergency Preparedness from the Department of 
Health and Human Services, and so on. Each addition was carefully 
considered and made in specific response to concerns raised by experts 
in the field to fill a demonstrated need in the new Department.
  Adoption of the Byrd amendment would extinguish all of that work and 
say: Let's start again.
  Consider the evolution of our new independent directorate of 
intelligence. We appreciated the attention paid to intelligence 
capabilities in the President's initial proposal, but working together 
with the chair and the ranking member of the Intelligence Committee, 
Senator Graham of Florida and Senator Shelby of Alabama, and Senator 
Specter of Pennsylvania, who made some very substantial contributions 
to this effort, we concluded we needed to go further to give the new 
Department the tools it needs to detect danger and prevent attacks 
against the homeland. Again, we were advised over and over again in our 
hearings that in this difficult, awful business of fighting terrorism, 
the best defense really is an offense, and the offense is intelligence, 
to know through our considerable intelligence community effort and our 
law enforcement effort, nationally, and at State, county, and local 
levels of government, to be able to gather all that information, put it 
together on that one proverbial board so the same sets of eyes see it 
and they have the capacity to see a pattern which will tell them a 
threat is coming, and that they will act, therefore, to stop that 
threat before it happens.

  Our colleagues on the Intelligence Committee have come to a point in 
their investigations of September 11 where they--I have not heard the 
results. Maybe they have not been published yet. There were some early 
suggestions of reports in the morning papers, but this afternoon there 
apparently has been a report on the gaps in the sharing of information, 
limited by old and no-longer-acceptable bureaucratic barriers.
  We created a division, a directorate of intelligence, not to collect 
more intelligence but to receive it from everybody, so that those eyes, 
which are the public's protectors, can look at the information so they 
will have the maximum opportunity to perceive threats before they occur 
and act offensively to stop them.
  Our proposal has already grown and adapted, therefore, over time to 
the best arguments and the best evidence. Of course, further refinement 
will be necessary as we go down the road, but I am deeply convinced 
that our committee has presented to the Senate a strong, workable 
structure, which is full of exactly the kinds of agencies and 
combinations the American people need to protect them.
  The frightful facts of September 11 tell us that our Government was 
not doing enough to protect the security of the American people, and 
the terror- 
ists took advantage of those vulnerabilities. It requires a Department 
of Homeland Security, up and running as quickly as possible, to close 
those gaps and eliminate those as a result of those vulnerabilities.
  A Member of the other body, Representative Thornberry, played a very 
active and supportive role in similar legislation. To his credit, in 
early 2001 he introduced his own legislation in the House creating a 
Department of Homeland Security, well before September 11, 2001. 
Congressman Thornberry testified before our committee on April 11 of 
this year, and he said to us:

       We must resist the temptation to study a problem, this 
     problem, to death.

  I believe he is right. We have studied enough. We have deliberated 
enough. We have seen the consequences of our disorganization more 
graphically and horrifically than we ever could have imagined. Now we 
must turn our thoughts into action.
  In fact, in response to the suggestion that we are going too fast, I 
say just the opposite. We have already taken too long as a legislature 
to begin to fix these problems. We have been living with the threat of 
terrorism for years. The scale has never approached, of course, the 
horror of September 11, but there were those who warned us that day, 
September 11, was coming. We knew the collapse of the Soviet Union was 
coinciding with the rise of other enemies, including subnational 
enemies; that advanced technology would too easily fall into their 
hands. We knew they were plotting. We suffered deadly attacks, both at 
home and abroad.

  It is time now to act. If we wait to attempt reform any longer, if we 
delay, as this amendment would effectively do, I believe we will not 
have fulfilled our responsibility to the American people. The threat is 
not going to vanish overnight. It is not going to give us the time this 
amendment would require to contemplate perfect reforms. We have no 
choice but to balance this reorganization with the ongoing efforts to 
strengthen our homeland defense capabilities.
  The fact is the advances we have made since September 11 have been, 
in some senses, in spite of the system, not because of it, because the 
system remains terribly disorganized and inefficient. The fact is that 
we need to act now. That is why I oppose this amendment.
  We have taken a year to deliberate and made dozens of difficult 
decisions about what kind of department we want to create. This debate 
has been

[[Page S8726]]

productive thus far on the committee's proposal overall. I am pleased 
the majority leader filed a cloture petition yesterday which will ripen 
tomorrow, because it is time to begin to narrow the debate--not to 
close it off but to narrow it--so we can see an end point by which this 
body can act.
  This amendment would force us to start again, forcing us to revisit 
every arduous decision we have already made without a clear end date by 
which the American people could have some sense of security that a 
Department would be up and working to protect their security.
  Last year, former Senator Hart, who worked with former Senator 
Rudman, was so instrumental in our committee's proposal and the White 
House proposal. I heard Senator Byrd refer to those four men who were 
sitting in the basement of the White House secretly crafting the 
President's proposal. I apologize for the immodesty of this, but I do 
so on behalf of our committee. When one looks at the product of their 
labor, the better part of it--that is to say volume, the larger part of 
it--is taken from the bipartisan work done by the Hart-Rudman 
Commission and then by our committee.
  Senator Hart told our committee in a hearing we held:

       This is a daunting task. But we owe it to our children to 
     begin. It would be a mistake of historic proportions to 
     believe that protection must await retribution, that 
     prevention of the next attack must await punishment for the 
     last. We can and must do both. For like death itself, no man 
     knoweth the day when he will be held accountable and none of 
     us knows how quickly the next blow will be delivered. I 
     believe it will be sooner rather than later. And we are still 
     not prepared.

  I agree with every word. I say to the occupant of the chair, Senator 
Hart's comments not only show he bears the marks of a good law school 
education but he also went to Yale Divinity School for a period of 
time.
  Mr. SPECTER. Will the Senator yield for a question?
  Mr. LIEBERMAN. I yield.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Madam President, the question to the Senator from 
Connecticut is on the issue of the timeliness of action by Congress. My 
question is: Does the Senator from Connecticut think it important to 
move--even on an earlier day, when the Senator from Connecticut 
introduced legislation last October for homeland security, which sat on 
a back burner, having been resisted by the President, the issue having 
sat on the back burner until the President endorsed the concept of a 
Department of Homeland Security--but does the Senator from Connecticut 
believe that too much time has elapsed already?
  Mr. LIEBERMAN. Responding to the Senator from Pennsylvania, this 
Senator does, indeed, believe too much time has elapsed already in 
better organizing the Federal Government to protect the security of the 
American people at home.
  In October of last year, I believe October 11, 2001, the 
distinguished Senator from Pennsylvania and I introduced a proposal to 
create a Department of Homeland Security, very much similar to the 
proposal that is before the Senate, though it has been revised and 
improved as it has gone along the way.
  I have said it with some pride and gratitude that the President, when 
he made his proposal on June 6, took a lot from the work that our 
committee had done; I don't begrudge that because the President's 
endorsement of this proposal, which had been our committee's proposal, 
in fact, put it on the road to passage.
  I hope we can find a way to come to a consensus on the great majority 
of this bill which most Members agree on and get it passed and not let 
the relatively small number of issues that divide us stop us from doing 
that quickly.
  Mr. SPECTER. I have one more question, if the Senator will yield, and 
the question is on the issue of having under one umbrella the analysis 
of all of the intelligence branches--CIA, FBI, Defense Intelligence 
Agency, National Security Agency--on the issue that there were enough 
dots on the board prior to September 11, that had they been connected, 
there might have been a veritable blueprint if you put together the 
July FBI report from Phoenix about the young man taking flight training 
with Osama bin Laden's picture in his apartment, and the two al-Qaida 
men who went to Kualai Lumpur, the hijackers known to the CIA and not 
told to the FBI or INS or the NSA report, on September 10 that there 
would be an attack the next day, not even translated until September 
12, and the information in the computers of Zacarias Moussaoui having 
been obtained with an appropriate warrant under the Intelligence 
Surveillance Act.
  There was a veritable blueprint for what happened on September 11 and 
there is urgency, urgency, urgency as we speak to get the intelligence 
agencies to act together and to coordinate the analysis so we may have 
as full a picture as possible.
  Mr. LIEBERMAN. Responding to the Senator from Pennsylvania, the 
Senator is absolutely right. The Senator from Pennsylvania has been a 
leader in congressional involvement and oversight of intelligence, I 
believe serving as chairman of the Intelligence Committee for a period 
of time. Again here he was very constructive and helpful in this 
committee's creation of the directorate of intelligence as we have 
created it.
  I have met, as have many Members of the Senate, as has the occupant 
of the chair, with families of people who were lost, who were killed on 
September 11. They ask the gnawing question, which we would ask if we 
were them, and we should ask ourselves: How could this have happened? 
How could September 11 have happened? And one of the most painful 
answers is that if we had our intelligence and law enforcement agencies 
better coordinated it might not have happened. The Senator from 
Pennsylvania spoke eloquently to that.
  The truth is, on September 11 there was no single place on which all 
the information would be brought together, from the intelligence 
community, from the law enforcement community. There is still no such 
place. So we remain more vulnerable than we should. This Department 
would create a director of intelligence that would do exactly that for 
the first time in our history. If we did nothing else with the 
Department--and the proposal does a lot else--that would be a 
substantial step forward in the protection of security of the American 
people.
  I thank the Senator both for his questions and for his very 
consequential contributions to this legislation.
  The PRESIDING OFFICER. The Senator from Nevada.


                amendment no. 4673 to amendment no. 4644

  (Purpose: To provide for the establishment of the Department of 
Homeland Security, an orderly transfer of functions to the Directorates 
of the Department, and for other purposes)
  Mr. REID. I send an amendment to the desk.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Nevada [Mr. REID] proposes an amendment 
     numbered 4673 to Amendment No. 4644.

  Mr. REID. I ask unanimous consent reading of the amendment be 
dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The text of the amendment is printed in today's Record under ``Text 
of Amendments.'')
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. I believe the clerk earlier read, when I offered the 
amendment, the clerk misstated the number to be 4644. Has that now been 
corrected? It was No. 4641, which I think the clerk stated, but the 
amendment is numbered 4644.
  The PRESIDING OFFICER. The Senator is correct, it is 4644.
  Mr. BYRD. I thank the Chair.
  Madam President, I do not intend to take the floor long, but I had 
understood that Mr. Lieberman would allow me to address some questions 
to him at a point while he held the floor. He must have let that slip 
his mind because he yielded to others, which is all right; I want him 
to do what he wants to if they have questions to ask, and now I have 
the floor. I will address just a few of the points that the 
distinguished Senator had.
  Of course, the distinguished Senator has pride in the work of his 
committee, under his chairmanship and under the

[[Page S8727]]

cochairmanship of the ranking member, Mr. Thompson. Of course he has 
pride. And he has great expertise, his committee does, certainly, with 
all the Members of it, great expertise in the subject matter of the 
legislation.
  I am not on that committee. I said that before. I come as just an 
ordinary Senator. I am not a member of the committee. I am not an 
elected part of the leadership. I am President pro tempore by virtue of 
my long service here in my party and in the Senate, but I am an upstart 
when it comes to this legislation. I just came in the house out of the 
rain. I can understand the distinguished Senator's pride in his work. 
Who wouldn't be proud after spending all these months? I know that he 
is proud. But are we supposed to accept a piece of legislation without 
amending it because of the pride of authorship of a chairman of the 
committee, or any other Senator?
  The distinguished Senator has asked me, as the chairman of my 
committee, how would I feel about bringing a piece of legislation--I 
think my words are being spoken in the spirit of what I think the 
Senator was saying. Unlike most other Senators, I cannot write down 
rapidly, quickly, what Senators are saying. I have a little trouble 
remembering exactly what they said, and if I misstate the portent of 
his question to me during his statement, I would be happy if I were 
corrected. I understood the distinguished chairman of the committee 
which has jurisdiction over the pending matter, I understood him to ask 
me, as chairman, how would I like to bring a bill out of my committee 
to the floor that has a certain amount of moneys for this and for that 
and had funds, line items, for certain programs, certain projects, how 
would I like it if someone offered an amendment to take all that away 
and change that to direct those funds to some other agencies.
  I assure Members I would like for that work of my committee, along 
with Senator Stevens and the other 13 Republican members and the other 
14 Democratic members, to be taken as something that did not, was not 
worthy of the attention of the Senator and to take all that and just 
give a blank check. Instead of allocating the moneys the committee had 
determined in the ways that the committee had determined, the 
Appropriations Committee had determined, just change it all and say 
make it a blank check. No, I wouldn't like that. And I don't like the 
blank check that we are about to give the administration in this bill.

  The distinguished Senator says he has pride in the work of the 
committee and doesn't want to see it changed. He would hope it would 
not be changed by my amendment, certainly, he says.
  What did the distinguished Senator and his committee do? They wrote a 
blank check, as it were. They say to the administration: Here, we will 
pass this bill, and we are going to turn it over to you, lock, stock, 
and barrel. We are going to move off to the sidelines, and you can do 
it as you will. Here are the bureaus. Here are the directorates. Here 
is the superstructure, they say. Now give to the administration, over 
the next 13 months, without any further action by the Congress, the 
transfer of these various agencies, functions, and employees into the 
new Department. It is yours. We will have no further say in it.
  Oh, you can come up. You can come before us and submit reports and 
all that. But by this law we are passing, that is all you can do, and 
it is all we will do. Here it is. Take it all. You have a blank check.
  No, I wouldn't want to have someone take an appropriations bill that 
came out of my committee and strike out all of the line items, all of 
the provisions, all of the functions and money for functions, and so 
on, and say just give them a blank check. No, I am not for that. But 
that is what is being done by the bill of the distinguished Senator 
from Connecticut. His is striking out the details which my amendment 
would write in. My amendment would keep the Congress involved. Congress 
would have oversight, and time and again we would require, in my 
amendment, that the administration make its recommendations for 
legislation and those recommendations would go back to the committee, 
chaired by Mr. Lieberman, and he would have an opportunity to take a 
new look at it and review it. Congress could conduct oversight.
  But he is not going to allow that under his proposal. He is going to 
say: Here it is. Mr. President, we are not going to fill in the dots. 
We leave all that to you. You have 13 months in which to do it. You 
have 13 months to fill in the dots, fill in the details, determine 
which agencies will go into the Department, and there it is.
  Also, the distinguished Senator talks about the agencies. Yet the 
distinguished Senator and his committee, they don't determine the 
agencies, what agencies will go into the Department. They don't 
determine those. I don't know right now what agencies the distinguished 
Senator from Connecticut is talking about.
  Now the distinguished Senator from Connecticut, who is still on the 
floor, I hope--I would love for him to stay, to remain so I can respond 
to the points he has made and the questions he has asked. He says the 
Byrd amendment strikes at the heart of the Lieberman bill. I would like 
to know how it strikes at the heart of the Lieberman bill. It improves 
and strengthens the Lieberman bill.
  He says the Byrd amendment would pull out of the bill most of the 
work the committee has done.
  Why, it doesn't do that at all. I will tell you what is pulled out of 
the bill, a good bit of the work that was in the Lieberman bill. The 
Thompson amendment struck titles II and III from the Lieberman bill. 
That is what pulled a lot of the heart out of the bill. I didn't do 
that. I didn't strike titles II and III. My amendment doesn't strike 
titles II and III. They are already out of the bill. That was done by 
the amendment offered by the distinguished Senator from Tennessee, Mr. 
Thompson. That is what struck the heart out of the bill.

  The distinguished Senator from Connecticut--I am trying to read my 
own feeble handwriting--says there is a sense of urgency to get on with 
this matter.
  There have been some who have been referring to this bill as the 
greatest reorganization since the National Security Act of 1947. 
Someone just the other day, maybe it was the President--I might be 
wrong. If I am wrong, I hope someone will correct me--who was comparing 
this reorganization with the reorganization of the Defense Department, 
of the military, the creation of the Defense Department in 1947, saying 
that is the role model. Someone said that is the role model, the 
creation of the National Security Act, pulling these various military 
agencies into one department, the Department of Defense.
  If that was the role model, if that is the ideal, then how long did 
it take for the National Security Act to pull these agencies together? 
How long did it take Congress to pull these agencies together, working 
with the President and working, by the way, with the military in this 
Government? It took 4 years. There were many bills offered in Congress. 
Committees did much work on that matter. It wasn't done overnight. It 
wasn't done in a week. It wasn't done in a month or 6 months. It took 
years, 4 years.
  I can't understand why someone would say: Oh, we have done all this 
work. Of course, the committee has done a lot of work. I have already 
indicated to the distinguished Senator from Connecticut, I know his 
committee has put a lot of work in on this bill. But after he has laid 
out a litany of actions, a litany of hearings, and so on and so on, all 
of that doesn't really compare with the time that was put into the 
creation of the National Security Act, the creation of the Defense 
Department.
  So here I can't understand all of this talk about a sense of urgency 
in this bill because it wasn't too long ago that the President was 
saying why do we need it? We don't need a new Department, and so was 
Mr. Ridge saying the same thing.
  The distinguished Senator from Connecticut says this is a work in 
progress. So apparently the work in progress is going to be done by the 
administration over the next 13 months.
  My amendment seeks to flesh out the Department, flesh out the 
director- 
ates, and do it in an orderly way and 
with Congress conducting oversight throughout.
  So I have listened with great interest to the distinguished Senator 
and his defense of this bill. But I say that any time a bill comes out 
of my committee

[[Page S8728]]

on appropriations, I expect it to be amended. And it isn't because I 
take pride in the authorship and the work of the committee that I fight 
another amendment. I never oppose another amendment simply on that 
basis, that my committee has conducted hearings. We conducted 5 days of 
hearings on the homeland security budget earlier this year.
  But I am always expecting amendments to be offered. I don't oppose 
another amendment just on that basis. After all, the idea here is to 
improve the work product. That is why the Senate is one of the two 
greatest upper bodies ever created. It is why the Senate is the premier 
upper body of the world today. It has unlimited debate, and it has the 
right to amend. But to hand it over to the administration, lock, stock, 
and barrel, and say, Here it is, here is the superstructure, here we 
provide for some under secretaries, assistant secretaries, and deputy 
secretaries--and, of course, it doesn't have title I or title II. That 
was taken out by the fine Senator on the Republican side of the aisle. 
Those two titles have been eliminated. They were moved out of this 
bill, and I am so proud those two titles are gone. They are gone.
  Here it is, lock, stock and barrel, and you take it and fill it out. 
You have 13 months in which to do it. Here it is. Take it and fill it 
up. This is the Byrd amendment. I don't want that because that would 
fill in some of the details. Congress, the representatives of the 
people, would fill in the details, some of the details with the 
directorates.
  I am sorry the distinguished Senator from Connecticut is totally, I 
would say, misapprehensive of my amendment. It plainly states what it 
will do. I am sorry. He is a good lawyer. He can take the easy side of 
the debate and make a different case. He can take an apple, shine it 
up, and make it so you would think it were an orange. He is a good 
lawyer. I don't speak disrespectfully of him. There are lots of good 
lawyers in this country. He is trying to tell the American people that 
the Byrd amendment would rip the heart out of his amendment. It doesn't 
do that. It makes his proposition better.
  I think the Senator wonders about the 13-month deadline. I have said 
that my amendment would complete the action in the Department and 
directorates, and the very agencies--although I don't know what 
agencies there are. The distinguished Senator from Connecticut hasn't 
yet told us what agencies are going to be put into the directorates.
  Here is the legislation, my amendment that says, yes, the whole thing 
will be completed in the same time period--namely, 13 months roughly--
that obtains in the case of the Lieberman proposal. Here is the 
language. Subsection (e), ``Deadline for Congressional Action: Not 
later than 13 months after the date of enactment of this act, the 
Congress shall complete action on all supporting and enabling 
legislation described under subsection (a), (b), or (c).''
  There it is. In the meantime, we would fill in the details. Congress 
would have its hand on the throttle as we went forward in filling out 
in these various five directorates in title I.
  Mr. LIEBERMAN. Madam President, will the Senator yield for a 
question?
  Mr. BYRD. Yes.
  Mr. LIEBERMAN. As I have heard the Senator read this last section 
from his amendment, it seems to me that what it requires is that 
Congress finish its action on proposals made by the administration, 
fill in the blanks in the five directorates within 13 months--not that 
they would actually be up and running--whereas the underlying committee 
proposal requires that the full Department be implemented no later than 
13 months after the President signs. And presumably substantial chunks 
of it would be implemented before.
  My fear, naturally, is that not only has the Senator, I repeat, taken 
the heart out of our proposal but that there is no clear date in the 
Senator's amendment by which Members of the Senate or the American 
people can have confidence that there will actually be a Department of 
Homeland Security.

  Mr. BYRD. Madam President, may I respond to the distinguished 
Senator? It is all going to be in the Senator's hands, under my 
amendment. My amendment would require the Secretary to send up to the 
Congress his recommendations for implementing and filling in the 
directorates.
  What will happen when those recommendations come to Congress? They 
will be under the jurisdiction of the committee that is chaired so ably 
by the distinguished Senator from Connecticut. It is all going to be in 
the Senator's hands. I will trust the Senator to work in his committee 
to get those details and recommendations, to weigh them, vote them up 
or down, amend them, and report to the Senate.
  As I have indicated so many times, I am perfectly willing and will be 
glad to help work out some expedited procedures whereby this will be 
done.
  The whole matter will be in the Senator's hands. I would trust the 
Senator from Connecticut and his committee far more than I would trust 
that crowd down on the other end of the avenue. I am talking about the 
OMB Director, and others. I trust the Senator. I take my hat off to 
this Senator from Connecticut.
  When we say that on February 3 something will happen, on June 3 
something will happen, on October 1 something will happen, and in the 
meantime these matters will go to the committee chaired by the Senator 
from Connecticut, we trust that Senator to see that the work is done, 
that it gets done. I don't trust those at the other end of the avenue 
who will have the thing handed to them, lock, stock, and barrel--take 
it all; take it all.
  I hope the Senator knows I trust him and I have great faith that he 
and his committee will expedite this action, that they will do a much 
better job, will keep the hand on the wheel, and the American people to 
whom the distinguished Senator has so properly referred will be much 
better protected. I think they would much more trust the elected 
representatives who are involved on that committee to do a good job and 
to see that the work is more expeditiously done.
  Finally, I will say this: My amendment expedites the work of creating 
this Department--expedites; doesn't delay but expedites. Read the 
amendment.
  Mr. LIEBERMAN. Madam President, responding to the Senator from West 
Virginia, I thank him for his trust that we will be able to get the 
work done next year. But the Senator from Connecticut believes that the 
committee I am privileged to chair has gotten the work done, and that 
is what we have presented to the Senate.
  The Senator's amendment would not expedite our work. It would in fact 
block it. It would stop it from implementation. It would extinguish all 
we have done in these five areas.
  I said in my earlier remarks that the committee and I certainly have 
no claim to perfection. Amendments are in order. As the Senator from 
West Virginia has said, it is the greatness of this body. And the 
Senator obviously has a right to submit the amendment that he has, and 
I respect him. I have a responsibility to my constituents, to my 
committee, and to my conscience to describe it. With all respect, it 
appears to me to be an evisceration of what our committee has done. One 
might just as well vote against the committee's proposal to support the 
amendment of the Senator from West Virginia. That is how conclusive I 
think it is.
  As I have said, it sort of builds that structure and has a few people 
up in the attic but nobody underneath really working. A few people in 
the attic are the Secretary and the Under Secretary, but nobody 
underneath.
  Mr. BYRD. Will Senator yield?
  Who are the people underneath in the Senator's amendment? I will tell 
you who the people are underneath. They are people I am afraid of. The 
people underneath in the Senator's amendment--I am looking at that 
chart. I am going to ask to have a chart from my office brought up, 
too.

  It is the people underneath I am afraid of. The people underneath are 
downtown. They are the people who are saying: Let's get on with it. 
Let's pass this bill and give the President flexibility, and all this 
stuff.
  I trust the people underneath, if it is Senator Lieberman's 
committee. I trust them, if they are underneath. That is why I put them 
front and center in my amendment.
  Mr. LIEBERMAN. Well, responding to the Senator from West Virginia, 
the

[[Page S8729]]

authority we would give to this administration if--and I hope when--we 
adopt a bill creating a Department of Homeland Security is no different 
than Congress gave, I believe it was, the Carter administration during 
which the Department of Energy was created. It created the Department 
and gave President Carter and his administration the opportunity to 
administer it. We maintain the power of appropriations and oversight.
  That is exactly what we would be doing here as a result of 
suggestions made by the Senator from West Virginia and the Senator from 
Alaska to our committee and components we included at their suggestion 
in our committee proposal. We have rejected attempts by the 
administration to have more authority over appropriations and 
reorganization.
  So I wanted to just say--
  Mr. BYRD. I thank the Senator. I thank the Senator for doing that.
  Mr. LIEBERMAN. I thank the Senator from West Virginia for the 
suggestions because I thought they had great merit.
  I just want to say this is a chart which describes who is under 
there. As I said in my remarks, we worked real hard on this. Under the 
Directorate of Border and Transportation Protection, the Customs 
Service; Animal, Plant and Health Inspection Service from the 
Department of Agriculture; the Transportation Security Administration; 
the Federal Law Enforcement Training Center--these are people we trust.
  You and I agree these are people the administration seems to want to 
deprive of some of their existing civil service protections.
  Mr. BYRD. Yes. Let me ask the Senator a question. In what titles of 
the bill does the Senator deal with this on the chart?
  Mr. LIEBERMAN. I will come back and check the exact--
  Mr. BYRD. He doesn't do it in title I, does he?
  Mr. LIEBERMAN. No. Titles II and III, incidentally, are in the White 
House office.
  Mr. BYRD. I know. These charts here, all this work the distinguished 
chairman is talking about, all these items, these agencies that he has 
on these charts, these are not the people underneath that are created 
by title I, are they?
  Mr. LIEBERMAN. Yes. They are in fact created by title I. These are 
existing agencies that are brought from where they are now to be 
coordinated in the Department. The exception--
  Mr. BYRD. How do we know those agencies are among the 28 agencies 
that are going to be brought into the Department?
  Mr. LIEBERMAN. Responding to the Senator from West Virginia, they are 
quite literally transferred--I mean, literally--in the legislation that 
we have put before you from our committee. Each one of these is spelled 
out and assigned to the particular directorate which the chart shows it 
is located under.
  Mr. BYRD. Would the Senator from Connecticut show the Senator from 
West Virginia and the Senate where my amendment takes those very 
agencies out?

  Mr. LIEBERMAN. Well, as I read your amendment, in the Directorate of 
Border and Transportation Protection, what your amendment would do is 
first remove the definition of the mission of that directorate, and 
then it would eliminate all this underneath and say to the executive 
branch: Come back--incidentally, not by February 3, but not before 
February 3--and tell us what you want in this directorate. The same is 
true of the Critical Infrastructure Directorate or the Emergency 
Preparedness and Response Directorate.
  So everything below what I have called the attic is eliminated, and 
basically these are generals without soldiers. These are admirals 
without sailors. They are just the top executives, and they have to 
wait until the administration makes the recommendations--not before the 
dates which you have set, and until the Congress acts. And we know 
Congress has a lot of ways to not act, if it chooses not to.
  So the Senator may disagree with the structure, obviously. That is 
not only his right, I understand if he does, but this was our best 
judgment as to how to make homeland security work.
  I just say that I do believe your amendment takes the heart out of 
our recommendation and delays drastically the date by which we would 
have a Department of Homeland Security protecting the American people. 
That is why I oppose it.
  Mr. BYRD. Well, I appreciate what the distinguished Senator says. We 
have only to look at some of the--let's take the agency that was 
created, the Transportation Security Administration, to find how 
quickly the train left the track, how much in error, how many mistakes 
were made, how that agency went awry.
  It should teach us that under the proposals of the distinguished 
Senator from Connecticut there is liable to be much of that happen 
throughout this whole Government when we are talking about 170,000 
employees and 28 agencies.
  I don't know if anybody in the legislative branch is aware of what 
the 28 agencies would be, what is the full number of the 28 agencies. 
The Senator may be absolutely correct in that, but I think that under 
any legislation that is passed, it is going to take many a prayer to 
have it come out right at the end of 13 months.
  I have read recently that it is going to be impossible to meet the 
deadline of December 31 with respect to some of the protections that 
are going to be provided to the traveling public in the air. They have 
already said, well, that can't be met.
  So I think at the end of the day we are going to find, under the 
proposal of the Senator from Connecticut, as well as under mine, if you 
want to make it that way, we are going to be subject to finding that we 
have heard that we did not provide enough time, that things are going 
wrong. And then when we increase the magnitude of what we have already 
seen go awry with reorganization proposals and find that here was 
170,000 employees, I think there is going to be a lot of extending 
deadlines in the end.
  But I am very sorry the Senator continues to believe that my 
amendment is taking the heart out of his proposal.
  Now here is a chart. May I suggest to the Senator that all kinds of 
charts can be written, and all kinds of charts can be displayed.
  Here, if anyone can read, with 20/20 vision, and getting up close, 
the number of agencies that are affected by this homeland security 
proposal of the administration--this is the existing bureaucratic 
structure we are talking about dealing with. This is the existing 
bureaucratic structure for all homeland security agencies. Here it is.
  Well, my goodness, just to read the names of those would take even 
the Senator, who has good eyesight, several minutes--several minutes, I 
mean, 15 minutes at least, from the top down.
  Look at this. Look at this chart. And all I am saying to the Senator 
is that we leave in his hands, in the hands of his good committee, the 
oversight of the creation of this Department, all of the directorates 
which his committee has proposed.

  That is all I am saying. Let's leave it in the Senator's hands, not 
turn it over to the people in the executive department. I want the 
people to have security, real security. That is why I want to trust his 
committee.
  Does the Senator have anything further?
  Mr. LIEBERMAN. I thank the Senator from West Virginia. I want to say 
that it is because of the complexity of that chart that refers to the 
various agencies that have something to do with homeland security or 
the war against terrorism--you see the Department of State here, 
Director of Central Intelligence, the Department of Defense, it goes 
beyond just homeland security and security generally--it is that chart, 
with all its unconnected pieces, that has motivated our work on this 
bill.
  Take, for instance, all the agencies that have something to do with 
border security. As we heard testimony in our committee, you go to a 
point of entry into the United States of America, you have three or 
four Federal agencies. Each one of them has their own office. Each has 
their own telephones. They cannot communicate rapidly with one another. 
The same is true of critical infrastructure protection, of the capacity 
of Federal, State, and local agencies to work together on emergency 
response, if, God forbid, there is another terrorist attack. That is 
the whole purpose of the Department we brought forward.

[[Page S8730]]

  As I have said, you mentioned my use of the word ``pride.'' It is not 
so much personal. It is both for the committee, and it is not to ask 
colleagues to support our proposal because we reported it out. I think 
it is the best proposal we could make at this time. Therefore, it is 
the most responsive to the threat of terrorism and insecurity here at 
home.
  Is it perfect? No way. Would it benefit from amendment on the floor? 
It would and will. Will the Department, once it begins going, when we 
pass this, still require the oversight of Congress, working with the 
executive branch to make it work better and better? Yes, it will.
  My concern about the Senator's amendment is that it doesn't build on 
the work we have done. It eliminates it. In that sense, it does set up 
a procedure which really will delay the date by which we make--let me 
describe it this way--our first, best effort, which is what I believe 
our bipartisan committee proposal represents, to create a Department of 
Homeland Security which will close the vulnerabilities that those evil 
terrorists took advantage of on September 11. That is why I have my 
sense of urgency about it.
  Mr. BYRD. Mr. President, I will yield the floor shortly. May I just 
say two things. One, I respect deeply the right of the Senator from 
Connecticut to disagree. I respect very deeply his own deep feeling of 
conscience that his approach is the better. I respect that. I salute 
him for it. But to say that the amendment I am offering does not build 
on the work that he and his committee have done is borne of 
misperception, misunderstanding possibly, of my amendment.
  It builds precisely on that rock. It uses the same superstructure.
  It was not my idea that we have five directorates in title I. It was 
not my idea that there be six under secretaries or seven, that there be 
five assistant secretaries. These were not my ideas. I took the product 
that the distinguished Senator from Connecticut brought out from his 
committee, and I have attempted to build upon that good work, build 
upon that rock and improve it.

  I shall yield the floor on that and say thank you to my friend and 
let someone else have the floor.
  I will shake hands with him so everybody will know that we are not 
really angry with one another. We may use all these fighting words. We 
get out our oratorical knives and we flash them. And they glint in the 
Sun. I am ready to sit down. I am not mad. I am not angry with the 
Senator at all.
  Mr. LIEBERMAN. I thank the Senator from West Virginia. The truth is, 
this was an important exchange, an important debate. It does put in 
clear focus and does give the Senate a decision to make about whether 
they are prepared to go ahead and adopt the amendment, the proposal the 
committee has brought out, or whether they want to basically take the 
superstructure, if I may use your word respectfully, and then come back 
to fill it in next year or the year after.
  It is not so bad to have a little emotion expressed on the floor of 
the Senate because we both feel strongly about our points of view. 
Hopefully, from that heat will come some light for all concerned.
  I am honored to have participated. I thank the Senator.
  I yield the floor. Senator Thompson has been waiting so patiently 
during this discussion. I regret he has left the floor. Pending his 
return, I yield the floor to the Senator from Michigan.
  The PRESIDING OFFICER (Mr. Carper). The Senator from Michigan.
  Ms. STABENOW. Mr. President, I appreciate Senator Thompson allowing 
me to speak for a few moments on this critical issue before he speaks. 
I have very much appreciated the exchange between my two friends and 
colleagues.
  I rise in support of the Byrd amendment to the homeland security 
bill. I stress that I very much support a Homeland Security Department. 
I commend Senator Lieberman, who is the first author. We speak of it 
now in terms of the administration's proposal, but I think it is 
important that we continue to recognize that it was the bill of the 
Senator from Connecticut originally. He is the one who brought this 
forward to us, and I congratulate him. I tend to support a Department. 
I think it is very important we do that.
  It is very important that Congress have a continuing say in the 
creation of any Department of Homeland Security, precisely because it 
is so important. I believe the Byrd amendment does that.
  Simply put, the mission of this new Department is just too important 
to be rushed into law. Senator Byrd has noted that in the past when we 
reorganized various military departments under one Department of 
Defense the planning took years. Clearly, we don't have years to create 
a Department of Homeland Security. I would not suggest that. But that 
doesn't mean we should not proceed in a thoughtful and deliberate 
manner to make sure we get it right. This is so important.
  In fact, if I could make a historical observation, it was September 
17, 1787, that our Constitution was signed by a majority of delegates 
to the Constitutional Convention.
  When that first Congress under the new Constitution met in 1789, it 
took months of on-and-off debate to create the first three Cabinet 
posts--the Department of State, the Department of the Treasury, and the 
Department of War. They even considered creating a Department of the 
Interior but rejected it at that time.
  Before those Cabinet posts were created, George Washington and his 
Vice President, John Adams, were pretty much the entire executive 
branch of Government. But that first Congress wanted to take the time 
to get it right. I suggest that we need to do the same.
  Many questions remain, and if the public is to have confidence in 
this new Department, these questions must be answered. For instance, 
which agency should be transferred into the new Department, and why? 
What criteria is the administration using to determine which agencies 
should be transferred?
  Almost all of the agencies being transferred have other functions 
that are unrelated to homeland security. How will those functions be 
affected?
  In Michigan, there are concerns over whether or not the Coast Guard 
will have sufficient resources to deter terrorists trying to sneak into 
our country from Canada by boat and still fulfill its crucial role in 
search and rescue operations and ship inspections. The Coast Guard is 
critical to Michigan. These issues are very real for us.
  In earlier discussions about a Homeland Security Department, the 
Department of Agriculture's Animal Plant Health Inspection System, 
APHIS, would have been moved to the new Department.
  While it is reasonable that the border inspection mission of this 
agency be a part of the new Homeland Security Department, it is 
critical that the domestic mission of protecting animal and plant 
health and, ultimately, the health of American consumers, remain within 
the U.S. Department of Agriculture. If the transfer of APHIS to the 
Homeland Security Department were to be proposed again, I would like to 
have the chance to debate that and vote, because I oppose that 
transfer.
  What about the workforce? Will our Federal employees lose the civil 
service protections created to keep politics out of the Federal 
workplace? How do we merge all of the different personnel and salary 
procedures of these different organizations?
  Mr. President, I suggest that Senator Byrd is correct. These are huge 
decisions that will take time to have it done right. These are just a 
few of the questions that need to be answered. There are many more.
  By establishing a Department of Homeland Security in well-defined 
phases, we will ensure that the Secretary of the new Department will 
have to return to the Congress and explain the rationale for the 
administration's decisions as they proceed. I believe that makes sense.
  Here is the rough timeframe and key events to create this new 
Department, as Senator Byrd has outlined before. First, if the 
amendment passed, we could quickly pass a bill establishing the Office 
of the Secretary and outlining the superstructure of the new 
Department.
  Then, early next year, the Secretary of Homeland Security will 
provide Congress with details for the Directorate of Border and 
Transportation Protection. Then, in the summer, approximately 120 days 
after the first presentation, the Secretary of Homeland Security would 
return to Congress and provide details for the Directorate of

[[Page S8731]]

Intelligence and the Directorate of Critical Infrastructure Protection. 
Then next fall--again, about 120 days after the second presentation--
the Secretary of Homeland Security would again return to Congress with 
details for the Directorate of Emergency Preparedness and Response and 
for the Directorate of Science and Technology.
  This more disciplined process will help us create a Department that 
is cohesive, responsible, and effective, with its duties and missions 
clearly defined.
  I believe this is the best approach to make sure that an effective 
Department actually is created and is one that is in the best interest 
of our citizens. I strongly support the Byrd amendment and urge my 
colleagues to do the same.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Tennessee is recognized.
  Mr. THOMPSON. Mr. President, I think the question before us is 
whether we will move ahead with a comprehensive reorganization plan to 
reorganize in a way that will greater protect our country--a plan that 
is supported by the administration, a plan that was approved by the 
Governmental Affairs Committee, or whether we go in another direction 
that I believe Senator Lieberman is correct on, which would move us 
away and down the road toward delay. It would delay addressing the 
crucial questions that I think are before the Senate and the country 
with regard to how we best address our security in the future.
  By nature, I tend to want to agree with the Senator from West 
Virginia when he says that we sometimes move too rapidly and without 
due consideration with regard to certain important matters that come 
before this body. I agree with that. I agree with it as I watch 
amendments to appropriations bills come forth that have not been 
considered by committees; that have not been subject to committee 
hearings; that have hardly been debated on the floor, and spend tens of 
billions of dollars; that grant and take away broad ranges of 
authority, as amendments and bills are passing through because they are 
deemed to be convenient vehicles. We do that all the time, 
unfortunately.
  So what we have done with regard to this homeland security bill, in 
comparison to what we do on a regular basis, makes it look as if we are 
moving at a snail's pace--not too fast, but at a snail's pace--compared 
to the short shrift we give and the rapidity with which we pass 
sweeping amendments to these appropriations bills and other bills that 
come through here, circumventing the committee process as we do it.
  I imagine my friend, the Senator from Connecticut, believes it 
somewhat ironic that it is suggested he has been giving the 
administration a blank check on the one hand, when so many have accused 
his approach as being one of micromanaging what the administration is 
doing. I must agree with him that the suggestion that this is broad and 
sweeping, and the implication that it is somewhat unprecedented power 
to the administration, is unjustified. I think he is right when he 
talks about the creation of a new Department or the merging of 
departments or any other broad range of administration activity. The 
administration is a part of a separate branch of Government, after all. 
Any time we do that we are granting authority, but it is hardly a blank 
check.
  When we determine such things as there being a Secretary at the top 
who is answerable--and, first of all, confirmable--to this body, and is 
answerable under oversight, and creating under secretaries--there are, 
I believe, 17 individuals created by this legislation, if it passes, 
which are confirmable by this body, that is hardly granting broad, 
sweeping authority to the other end of Pennsylvania Avenue.
  As my friends from West Virginia and Connecticut were talking about 
which end of the avenue they trusted the most, I was beginning to fear 
that they were going to come to agreement on an important part of this 
debate, but it didn't quite happen. So I feel better about that.
  We have 17 confirmed positions in this bill, 6 directorates, pulling 
22 agencies together, agencies that have already been created by this 
Congress, with their duties delineated. We give permission, as it were, 
for those to be brought together. We delineated in this bill the 
responsibilities of these directorates, the duties of these positions 
that we create.
  We are certainly not going to lose our oversight duties and 
responsibilities, if we choose to exercise them. We are certainly not 
going to circumvent the annual appropriations process.
  This bill does get into the details of our intelligence operations. 
Goodness knows we need improvement in that regard, and we can have a 
good debate as to how best to improve it. But when Congress in a bill 
gets down to the business of saying this particular information shall 
go here and this particular officer shall have the right to this 
officer's information and this particular information, and the 
President can step in here but he cannot step in there, that is hardly 
granting a blank check.
  One could argue we need to do more of that and get into the weeds 
even in more detail, but one can hardly argue we are creating a blank 
check and certainly one that is inconsistent with what we have done, I 
think, as a Congress many times in setting forth other important 
Departments.
  Reference has been made to the National Security Act, which was 
created in 1947. Congress acted then after due deliberation. I presume 
most folks think we went through the proper process and deliberated 
sufficiently before we created that agency in 1947.
  As I understand it, Congress has subsequently acted 43 times since 
then. So we should make no pretense whether we do it today or tomorrow 
or next year or 2 years from now that that is going to be the end of 
it. It is going to be the beginning of a process to do the best we can. 
Senator Lieberman said it well when he said: Our first best effort.
  The question gets back to one I posed in the beginning: Do we do it 
now or do we do it later? I have some difficulty with certain parts of 
the bill that came out of committee. I certainly cannot argue with the 
detail which addresses the seriousness of the component parts of this 
new agency that is being created. It is a 347-page bill. There is some 
other historic legislation that has been passed by this body that is a 
fraction of that amount.
  In sum and substance on that particular point, I will simply conclude 
that we are at least in the middle of the road in exercising our 
congressional authority in setting up a new Department as to whether or 
not we are having our say about how it is to be done versus just 
handing it over to the executive branch and saying: You fill in all the 
blanks. I respectfully submit the Congress has not done that.
  We get down to the practical proposition that this Congress has 
relatively few days remaining in this year. We all know we are not 
going to stay around here too much longer. It is an election year. We 
may be in the first week of next month; we may be in the second week of 
next month. Nobody knows exactly how much longer we have. We have 
several important pieces of legislation still pending which we have to 
address one way or another--appropriations bills, Defense 
appropriations. We are going to be considering an Iraq resolution. 
These are important issues, eminent issues that we cannot avoid, must 
not avoid, and we will not avoid. We will take up those issues.
  The question becomes, again, with regard to homeland security: Do we 
go ahead and consider these amendments and get on about our business, 
have a debate on these amendments and let everybody have their say on 
these amendments, fashioned the best we can, or do we put it over to 
next year and take it up again next year? Do we really want to go into 
next year, after having set aside the time to consider this, after 
about a year, since the start of hearings? Do we really want to 
conclude we want to put this bill off, in many respects, until next 
year?
  I do not think we want to conclude that, and that is what the 
adoption of the amendment that is the business before the Senate will 
do.
  We started the hearings process in the Governmental Affairs Committee 
on September 20 of last year. From September until June of this year, 
the committee held 18 hearings. So it is almost a year ago we started 
the hearing process with regard to this bill.
  It was almost a year before that very important commissions started 
telling us facts we did not really want to hear, and that was that we 
were in danger;

[[Page S8732]]

that our country was vulnerable; that we needed to address the issue of 
terrorism; and that a part of the way we must address it had to do with 
the way our Government was organized.
  In December of 2000, the Gilmore Commission released its report. In 
February of 2001, the Hart-Rudman Commission released its report. Of 
all the many positive aspects of this body, the most disturbing aspect 
is how many reports and warnings and how much information we have to 
get sometimes before it gets our attention. We could not get in this 
room all the GAO reports and commission reports and other similar 
reports and comments over the past few years telling us and warning us, 
generally speaking, of what was coming and what was looming out there, 
not to mention intelligence information, about which we might or might 
not be able to talk.
  Public bipartisan independent reports were coming in at least a year 
before we even started our hearings. So we have had the benefit of 
those reports.
  Would that we took that much time on other important issues facing 
our Nation as we pass amendments to appropriations bills left and right 
and hardly know on what we are voting, issues on which we have had no 
hearings, on which we have had no committee action, and we do it 
helter-skelter sometimes. Compare that to the process we have been 
through with regard to this issue. So we are here at the end of that 
time and we are on the bill. We are facing important issues with regard 
to this bill.
  We have considered one of them: the question of whether or not the 
person who is going to be in the White House is going to be Senate 
confirmed or not. We had a vote on that. The Senate expressed its 
opinion, expressed its will on that issue in a pretty convincing 
fashion, in essentially a bipartisan vote. We decided that would not be 
a position subject to Senate confirmation because we were creating a 
new Secretary who was going to be subject to Senate confirmation, and 
we did not need that duality.
  The President deserved counsel inside the White House separate and 
apart from the Senate-confirmed position. We decided that, but we took 
it up early last week. We only got a vote on it yesterday.
  We have issues concerning the President's national security 
authority. This bill would actually take away authority that the 
President has traditionally had with regard to the exercise of his 
power in instances concerning national security. That is a portion of 
the bill with which I disagree, and in one form or another I want to 
debate that issue on the floor of this body.
  We have the issue of management flexibility, whether we want to adopt 
the same old management tactics and techniques and laws that were 
passed back in the 1950s in the paper age where we have all of these 
multisteps that people go through in their careers. They go into the 
Government at a certain level and work their way up and stay with the 
Government 20 years and then they are out. That is a totally different 
era than we live in today.
  Do we want to adopt those practices to homeland security or do we 
want to do it a different way? This is an extremely important issue. 
How are they going to be able to get anyone to take that job, without 
the tools that are necessary to do that job, under a system that can 
take years in the resolving of disputes over worker competence and 
things of that nature? The chance over the last 5 years of a person 
being dismissed and actually removed from Government because of 
incompetency is three-tenths of 1 percent. Government workers 
themselves, the overwhelming number of which are good, competent 
people, would like some opportunity to make better pay and have some 
incentive pay and to move around easily and to get hired sooner. 
Surveys will tell us there is more than three-tenths of 1 percent who 
might want to find another line of work. Do we want to address that 
now? We all know it is a problem.
  Go down to the Brookings Institution and they will tell you--we all 
know it--that it is an outdated system. Do we want to address that? Do 
we want to address the issue of intelligence?
  At the heart of all the problems we have seen, before and since 
September 11, is the problem we have had with the collection, analysis, 
and dissemination of intelligence material. What could be more 
important to this country than that? We have a provision in this bill 
that has to do with that, and we need to discuss it. What is the best 
thing to do about that?
  These are important issues facing the country and this body at the 
heart of this bill. Are we going to put all of that off until a later 
time because we have only had a year since we have started the process 
in this body? I do not think we can do that.
  The problem is that we have not had the opportunity to consider those 
issues. After we considered the issue of whether the White House person 
is going to be confirmed by the Senate, I stated that I wanted to ask 
for the yeas and nays, get a vote on it and move to the next amendment. 
We have not been able to move, since that time, until today. Senators 
have exercised their rights under the rules of the Senate, and as we 
came to address this issue yesterday none of those issues--national 
security authority of the President, management flexibility, what kind 
of intelligence operation we are going to have, the reorganization 
authority of the President--have been brought up.

  I had not had the opportunity, and my colleagues have not had the 
opportunity, to address those issues at all, when everyone knows they 
are at the heart of this bill and they have to be addressed. What 
happened? Cloture was filed on the bill, which if passed would cut off 
a vote on all of those amendments.
  So on the one hand, we are saying we want due deliberation, we have 
not had enough time to consider all of these important issues, and then 
on the other hand we want to have cloture so consideration of those 
issues are cut off, at least for the foreseeable future. That is the 
dilemma we have now.
  I do not think my colleagues can have it both ways. I could not agree 
more that we need to take an appropriate amount of time, but simply 
waiting and watching the clock tick-tock, tick-tock does not make us 
any wiser. We need to consider the substance of these issues. That 
might make us a little bit wiser. We need to get on with it, in other 
words. That is why cloture is so inappropriate on something such as 
this. That is why we need to discuss and consider these amendments, 
instead of cutting off debate and washing our hands of it. We certainly 
should not be putting it off until another year.
  How long has it been now since we have known we have had intelligence 
deficiencies with regard to human intelligence, with regard to our 
ability to penetrate these foreign cells that wish us so much harm? How 
long has it been since we have known we have had problems in that area? 
A long time. A long time. This is not news to us. We do not have to 
study that problem any longer. We know we have it.
  How long has it been since we have known we have had problems at the 
border? A long time. How long has it been since we have known we have 
had problems at the IRS--INS? Well, IRS, too, especially, but the INS. 
We have known of those problems for a long time. They still exist. It 
is time we did something about it. I do not think the American people 
want us to wait until next year.
  We have spent considerable time in these 18 hearings, and dozens more 
in the Senate and House committees. Congress and the President have had 
the benefit of inclusions and recommendations of several commissions, 
such as the Gilmore Commission and the Hart Commission, that have 
studied this problem extensively.
  Frankly, it is going to be years before this Department is 
functioning, as it is, and certainly longer if we do not fix the 
flexibility problems I referred to earlier. If creating this new 
Department is really the right thing to do, the last thing we need to 
do is to put off its implementation.
  Some would have us wait and deliberate until we get it perfect, but I 
submit that day will never come. Reorganization of this size is clearly 
going to require further action by Congress in the future.
  The National Security Act of 1947 was not perfect. According to CRS, 
we have had to amend it 43 times since it was passed. Continuous 
oversight and

[[Page S8733]]

legislative action is a part of the process of governing, which we 
should be prepared to do.
  I think it is instructive to look at the chronology over the last 
couple of years. I mentioned the Gilmore Commission, December 2000; 
Hart-Rudman, February 2001; September 11, of course, our country was 
attacked. From September through June, our committee held 18 hearings. 
Other committees did the same. In October of 2001, the President 
established the Office of Homeland Security and charged it with 
creating a national strategy. In October of that year, Senator 
Lieberman introduced S. 1534, a bill creating the Homeland Security 
Department. In May of 2002, Senator Lieberman introduced S. 2453, a 
bill creating a Homeland Security Department and a White House office. 
In May of 2002, there was a markup in Governmental Affairs. I did not 
support the marking up of that bill at that time. I probably said some 
of the same things the Senator from West Virginia said at that time. 
The thing that I was most concerned about at that time was that we did 
not have a national strategy. I thought a strategy as to how to 
approach a problem should proceed a bill that dealt with the problem. I 
still feel that way.

  In July of this year, the President released a national strategy. 
Also, in July of this year, the Governmental Affairs Committee received 
recommendation from several other Senate authorizing committees 
regarding the homeland security bill. This was a composite of the 
studied considerations and recommendations of other authorizing 
committees. It may be true that not many Members in terms of a 
percentage of the whole body know a great deal about the details of 
this bill, but there are Members and there are other committees who do 
and have been a part of this process.
  If there is truly a structural problem with the House bill or the 
substitute, we ought to consider it. We ought to take it up. We ought 
to talk about it. See what it is. See if we can do better. See if we 
need to set it aside. See if we need to amend it. We can do that. But 
so far, with the disagreements that we have on management flexibility 
and national security authority and things of that nature, most Members 
who have looked at it are in the same structural ballpark. And the 
parts we have a problem with, we are trying to deal with on the floor. 
So it comes down to the question of whether or not we want the 
Department right now. I believe it is the right thing to do and the 
responsible course is to act while we have the momentum.
  There are a couple of points that are properly characterized as 
``lesser'' that I think are worth noting. This amendment also strikes 
language that allows the Department some flexibility in the procurement 
of temporary services of experts and consultants. This language was a 
compromise offered by Senator Lieberman in committee. It is important 
language that allows the Secretary access to the full panoply of 
experts he will undoubtedly need. Even under the limited structure 
envisioned by this amendment, he may need consultants to help determine 
the Department's needs for the legislative proposals or for the INS 
Directorate, which is not limited by the amendment we are now 
considering.
  In addition, the amendment strikes the visa issuance force of the 
substitute. This is a provision that was also in the President's 
proposal. It provides the Secretary of Homeland Security authority to 
issue visas which would be exercised through the Secretary of State. 
All 19 of the 9/11 hijackers came to the United States with legal 
visas; 3 of these obtained their visas through their travel agents 
through the State Department's visa express office. Many people who 
come to this country obtain their visas through the State Department. 
Striking this provision takes away the ability of the Secretary to 
coordinate the visa issuance with the rest of the Department, 
maintaining consistent rules and policies.
  With all due respect, I hope we will not adopt this amendment. I hope 
we can proceed with the important issues we have before the Senate that 
we have not had a chance to get before cloture was filed: The issues of 
whether the President's national security authority will be reduced; 
the issues of whether the new Secretary who is going to be taking on 
this broad responsibility will have the management tools with which to 
get the job done; the important issue of what kind of intelligence 
apparatus do we want within this Department; the issue of 
reorganization. All of these issues have been discussed in committee 
and have been discussed in some detail, many of them, by various 
commissions for some time. It is time for the Senate to discuss these 
issues.
  I continue to mention them in passing as we are considering other 
amendments, but we have not had the opportunity to discuss these 
things. If we want more time to discuss these important issues, these 
aspects of the bill, I suggest we take that time. We have it. We have 
it right now. These are all issues that need to be debated and 
discussed before this body. I don't know why we would want to wait any 
longer with regard to that which we know is so deficient.
  I suggest we get on about that and we be allowed to consider them in 
however much length or detail we want, with everyone exercising their 
full rights but talking about the substance of these issues that are 
before the Senate, that are staring us in the face, and are begging for 
our consideration.
  Mr. BYRD. Will the Senator yield before he yields the floor?
  Mr. THOMPSON. I would be happy to yield.
  Mr. BYRD. I see other Senators wish to speak. I compliment the 
distinguished Senator on his statement. I say again, he is an excellent 
lawyer, I believe. Yes, he is.
  Mr. THOMPSON. The lawyer part, anyway.
  Mr. BYRD. He is an excellent lawyer. I think he has made from his 
point of view, certainly, an excellent statement in support of a bill 
that he does not like. He does not like this bill. He did not vote for 
this bill when it was in the committee. That is what I call a good 
lawyer. Here he is on the floor making an impassioned speech.
  Mr. THOMPSON. It will get better.
  Mr. BYRD. A very careful speech. It is thoughtful and I like that 
about him.
  I think there was one item; the Senator, I believe, asked the 
rhetorical question, Do we want to wait until next year? Let me just 
say right here that the people who are providing security for our 
country, and are on the job for all of us, are on the job right now. 
They are out there when we are sleeping, and they are good people. They 
are very dedicated people. They are at the ports of entry; they are at 
the airports; they are at the river ports; they are on the 75,000 miles 
of northern and southern borders in this country. They are on the job.
  I believe they arranged for the arrest of six persons in New York 
just a few days ago. We did not have a new Department of Homeland 
Security. Those people are on the job right now. They are doing the 
work.
  So I think we have time to think this thing through and try to do the 
job right.
  Again, I compliment the distinguished Senator. There are other 
Senators who wish to speak. Senator Gramm from Texas is here. May I 
just say I know that Senators Boxer, Cantwell, Dorgan, Jeffords, 
Schumer, and others want to speak on this amendment--not necessarily 
tonight but maybe in the morning. I thank the distinguished Senator 
again.
  Mr. THOMPSON. I yield the floor.
  The PRESIDING OFFICER (Mr. Nelson of Nebraska). The Senator from 
Texas.
  Mr. GRAMM. Mr. President, I spoke earlier today under our time limit 
and I was grateful for the opportunity and said much of what I wanted 
to say on this subject today. But I wanted to come over this afternoon 
to talk a little bit about the Byrd amendment and to focus in on where 
I think our problem is, in coming to what I believe should be a 
bipartisan consensus.
  Let me, first, say that Senator Byrd has spoken at great length on 
this issue. On Friday I was running on a treadmill--coming as close to 
running on a treadmill as an old man comes , to exercise my mind as 
well as my body--I listened to Senator Byrd speak for almost an hour. I 
had, on two occasions, listened before. I want to make the following 
observations.
  First, there is one point that I am convinced on by Senator Byrd and 
that

[[Page S8734]]

is the point about appropriations. Senator Byrd has talked about the 
Constitution and talked about our responsibility as an independent and 
equal branch of the Government. I think nowhere has his argument been 
stronger and more to the point than on the issue of the power of the 
purse. I want to make it clear that tomorrow Senator Zell Miller and I 
will be presenting a substitute. Maybe not on the floor. I don't know 
where we will be, in terms of ability to offer an amendment on the 
floor, but in the morning we are going to put out a substitute that we 
have been working on intensively for some 3 weeks.
  One of the changes we have made is we have eliminated this 5-percent 
flexibility in appropriations. I believe that for every one problem 
that we have in trying to deal with homeland security and deal with a 
massive new Government agency, for every one problem we have where the 
President would want to reprogram funds unilaterally, we are probably 
going to have 500 problems with administrative flexibility and with the 
ability to put the right person in the right place at the right time.
  So in listening to Senator Byrd and working with Senator Stevens, at 
least in terms of what we are offering as an alternative that we 
believe has some bipartisan appeal, that takes much of what is done in 
this bill and in the House bill, we have been convinced that Senator 
Byrd is correct in noting that a fundamental power of Congress is the 
power of the purse. It is a power that the Congress has to be very 
jealous about relinquishing, and it is something that should not be 
done.
  I am also convinced, as we begin the process of making this new 
Department work, that we can come up with a process whereby efforts to 
reprogram funds can be dealt with on an expedited basis. I had the 
privilege of being a subcommittee chairman for 2 years at the Commerce, 
Justice, State Appropriations subcommittee. I do not think there was 
ever a time where any of those agencies asked for reprogramming of 
funds that we ended up denying them. So I think that is something that 
can be worked out.
  I think the points that were raised were strong points. It is an area 
where I find myself in agreement with Senator Byrd, and it is something 
that I believe we can and will fix. And the administration does support 
this substitute.
  Mr. BYRD. Mr. President, if the Senator will yield for a moment?
  Mr. GRAMM. I am happy to yield.
  Mr. BYRD. I thank the distinguished Senator for what he has said. I 
appreciate so much his good work on the Appropriations Committee when 
he was a member of the committee. And our loss is the Senate Finance 
Committee's--I believe--the Senate Finance Committee's gain. I thank 
the Senator. I am flattered by his remarks. But he and I both know that 
he agreed with the Constitution on the power of the purse more so than 
with Senator Byrd. I thank him. That was part of his statement, but it 
was part of the Constitution that we both revere and respect, not only 
to that matter but certainly to that matter. And the Senator has ably 
addressed himself to that. I thank him.

  Mr. GRAMM. I thank the Senator for his kind comments. I will say, in 
my 6 years on the Appropriations Committee I learned more about how 
Government really works than in any other of my service. Some of which 
I liked, how it worked. In some cases I didn't like how it worked.
  Let me now turn to the other issues. I want to begin with the 
following point that I think in a reasoned way we all agree with. One 
of the interesting things about public life and public service, and 
serving the greatest country in the history of the world, is that it 
constantly comes home to me that good people with the same facts, as 
Thomas Jefferson observed, are prone to come to different conclusions. 
There are several areas where I have come to a very different 
conclusion than Senator Byrd, and a very different conclusion than 
Senator Lieberman. I would like to try to explain why I have reached 
the conclusions I have reached. These areas have to do with what I 
think goes to the heart of homeland security.
  I think it is very instructive to note that there have been areas 
where the Congress has already decided that the civil service system, 
in those critical areas, needed to be changed. It is not as if we have 
not had many warnings about the inadequacy of the civil service system.
  The other day I was using some facts and there was an extra part to 
the story, but I want to repeat them with the rest of the story in it. 
I think they bring home the point.
  In 2001, we had 1.8 million people working for the Federal 
Government. Based on the performance of those 1.8 million, we 
immediately terminated 3 people. Under the previous administration, 
64,340 Federal workers were estimated, or at least judged by that 
administration, to be poor performers. Of those 64,340 out of 1.8 
million, we went through the process of removal with only 434. And that 
process takes up to 18 months.
  Currently, in OPM polls of Federal employees, the very people who 
many of our colleagues and many of the unions which oppose the 
President's bill claim to be representing, in opinion polls taken of 
Government employees, two-thirds of Federal workers today believe that 
poor performers are not adequately disciplined by the current system. 
That is two-thirds of the people who work for the Federal Government in 
random sample polling believe that job performance has little or 
nothing to do with their chances of promotion.
  So, first, I think it is important, in looking at what we are asking 
in terms of powers to promote national security and to protect it, to 
note that the current civil service system is far from perfect.
  Second, we have had study after study conclude that we needed a 
dramatic change in the civil service system--the Grace Commission 
report in 1983 and the Volcker Commission report. As we are all aware, 
Paul Volcker, former Chairman of the Federal Reserve Bank, certainly no 
union basher in the political phrase of our era and of this bill, 
concluded:
  The current system is slow. It is legally trampled and intellectually 
confused. It is impossible to explain to potential candidates. It is 
almost certainly not fulfilling the spirit of our mandate to hire the 
most meritorious candidates.
  Our own colleague, Senator Warren Rudman, headed up the U.S. 
Commission on National Security. We all know Warren Rudman. We know he 
is a serious person. We know he did not enter that Commission with any 
ax to grind. Yet he concluded that ``today's civil service system has 
become a drag on our national security. The morass of rules, 
regulations, and bureaucracy prevent the Government from hiring and 
retaining the workforce that is required to combat the threats we will 
face in the future.''
  Not only are people in the system registering their unhappiness, but 
we have consistently had commissions headed by Democrats and headed by 
Republicans that have called for a dramatic reform of the system. 
Interestingly enough, we have responded.
  When we decided to federalize inspectors at airports, in that bill we 
gave the President power in terms of personnel flexibility to hire and 
fire. We gave him the ability to get around the normal procedure that 
requires up to 6 months to hire somebody. We gave him the ability to 
fire for incompetence and to promote, to some degree, on merit.
  We have done the same thing in the past with the Federal Aviation 
Administration. But, interestingly enough, in one area we have granted 
a tremendous amount of flexibility, when we decided to reform the 
Internal Revenue Service, we gave the executive branch of Government 
tremendous flexibility in hiring, firing, pay and promotion, because we 
were so concerned about the inefficiency and the potential corruption 
in the Internal Revenue Service.
  I ask my colleagues: If we believed that the current system was 
failing us in the Internal Revenue Service and that we had a problem 
which required a different approach and more flexibility with regard to 
our sensitivity at the Internal Revenue Service with people who know 
our intimate financial information and who look at our tax returns. If 
we believed that flexibility to administer that Department was 
necessary--and we did, and we adopted it and it is the law of the land 
today--I wonder what people back home would

[[Page S8735]]

think when we said we thought flexibility was required at the Internal 
Revenue Service in terms of personnel because of its sensitivity and 
because of the lack of efficiency, but we don't think similar or 
greater flexibility should be provided to the President and to the 
Secretary of Homeland Security.
  If we thought the problems at IRS justified a new approach, a new 
flexibility, the ability to hire and fire and promote based on merit 
outside the Civil service system in terms of special procedures, how, 
after 9/11 and after terrorist attacks that killed thousands of our 
citizens, can we not believe that homeland security is at least as 
important as the Internal Revenue Service?
  When we granted flexibility for the Transportation Security 
Administration in the hiring, firing, and promotion of people who 
inspect your carry-on bags at the airport and helping to provide 
security, does anybody believe it made sense to give flexibility to the 
Transportation Security Administration but it doesn't make sense to 
give even more flexibility to the Department of Homeland Security?
  I don't think 1 American in 100 would agree with the thesis that the 
IRS is more important and that we are more concerned about its ability 
to do its job than we are concerned about the ability of the Coast 
Guard to keep a nuclear explosive from being brought into New York 
Harbor.
  But, incredibly, I think we got off into the ditch on this bill was 
that, while the Congress has already granted some flexibility to the 
President in the Transportation Security Administration, Internal 
Revenue Service, and Federal Aviation Administration, for some 
remarkable reason--even after the terrorist attack in New York--in this 
bill, a decision was made that the President should have less 
flexibility in managing the Department of Homeland Security than he 
does in managing the Internal Revenue Service. I think the American 
people will find that virtually incomprehensible, and I think they will 
find they are unable to accept it.

  Another place that I think we got off into the ditch on this bill was 
taking away power that the President now has. If you went out and did a 
poll, and if you asked people: Do you believe, in light of the attacks 
on September 11, we should give the President more power in the ability 
to run the Departments of Government that have to do with homeland 
security after the attacks than he had before?--if you posed that 
question, I don't believe there would be 1 American in 1,000 who would 
have said: No, let us take national security power away from the 
President. Not 1 in 1,000 would have said : No, why don't we just leave 
it like it is? I think probably over 900 out of 1,000 would have said: 
Yes, we ought to give the President more power.
  But, for some remarkable, unexplainable reason, the bill that is 
before us actually takes power away from the President which he has 
today.
  I remind my colleagues, when the President is asking for the ability, 
for national security purposes, to override union contracts in terms of 
work rules, that is a power the President has today--unabated in those 
areas that deal with intelligence and national security. The President 
has that power today. The current and previous Presidents have used 
that power, and that power is currently in effect. The waiver of 
collective bargaining agreements has occurred in eight Government 
agencies as we debate this issue about whether the President should 
have this power. Every President since Jimmy Carter has had this power, 
and they have used the power. Currently, in the following agencies, 
collective bargaining agreements of one form or another have been 
waived: The FBI, the CIA, the National Security Agency, the Secret 
Service, the Air Marshals Offices of the Federal Aviation 
Administration, the Criminal Investigation Division at the IRS, the 
Office of Criminal Enforcement at the Bureau of Alcohol, Tobacco, and 
Firearms, and the Office of Enforcement and Intelligence at the Drug 
Enforcement Agency. In those eight Government agencies today, we are 
operating under rules that the President has asked for power to use in 
the new Department of Homeland Security.
  I would have to say that never once in the Carter administration, in 
the Reagan administration, in the first Bush administration, in the 
Clinton administration--never in any of those administrations, so far 
as I am aware, did anybody propose taking away those national security 
powers.
  As I have said, these powers are currently in force in eight 
different Government agencies. Yet, remarkably, after the attack on 9/
11, and in a bill we wrote to respond to it, this bill takes away power 
that President Carter had, that President Reagan had, that Bush 41 had, 
that Clinton had. I just would like to note that I do not remember--and 
I have served in Congress since the last 2 years of the Carter 
administration - but I do not remember, in any of those 
administrations: That is too much power for the President to have. He 
ought not to have that power, and we ought to take it away from him.
  But yet, remarkably, in a bill we have written to respond to the 
crisis we face, and the mortal risk we face, and in a follow-on to 
thousands of our citizens being killed in a terrorist attack, for some 
unexplainable and incomprehensible reason, the bill that is before us 
says we are actually going to take power away from the President to 
have a national security waiver of work rules under this new law and in 
this new Department.
  I do not believe, if the American people really understood that is 
what the bill is trying to do, there would be 1 American in 100 who 
would be for this bill. And the President has said he is not for it, 
and he will veto it.
  Let me explain what we are talking about in terms of these waivers. 
We are not talking about waiving worker protections in terms of the 
basic rights of people and their constitutional rights. We are talking 
about work rules that have been negotiated as part of union contracts 
that interfere with our ability to do the job in the new Department.
  Let me, very briefly, go through a few of those work rules that have 
impeded our ability to do things similar to the things we would like to 
do in the name of homeland security. Let me do a couple of them in 
detail, and then I will just mention the others.
  In 1987, the Customs Service in Boston decided they wanted to 
reorganize the inspection room. They concluded they could be more 
efficient in inspecting things coming into the country. So they set 
about the process of remodeling the inspection space.
  The Treasury Employee Labor Union filed a complaint with the Federal 
Labor Relations Authority claiming that to reorganize that work space, 
to reconfigure it, without renegotiating the union contract, violated 
the union contract. It ended up going to the Federal Labor Relations 
Authority, and--guess what--they ruled that it violated the union 
contract and the Customs Service could not restructure the inspection 
area.
  Now, look, after 3,000 people died in downtown New York, if we 
conclude, with this new Department, that we need to change the 
inspection area at the airport, are we going to go through 18 months of 
negotiating with the National Labor Relations Authority as to whether 
we can do it, when the lives of our people are at stake? Absolutely 
not. Nor would anybody in their right mind suggest that we should. That 
is the kind of waiver authority for which the President is asking.
  I will give you another example.
  Under the work rules that govern border inspection, Barry McCaffrey--
you all will remember Barry McCaffrey, the good general who was the 
drug czar during the Clinton administration--he observed, in the San 
Francisco Examiner that under these work rules for Customs and INS, 
there were some things they each could and could not do under these 
contracts. He observed officials at one agency were actually forbidden 
to open the trunks of cars, a policy well known among the drug 
dealers. Then he talks about how actually knowing these work rules 
allowed the drug dealers to game the system.

  Now, let me switch to the Coast Guard. Are we willing to let work 
rules and what some people will and will not do prevent us from 
searching a barge that might bring a nuclear device into New York 
Harbor? Does anybody really believe, in the Department of Homeland 
Security, the President should not have the power to waive those work 
rules when people's lives are at stake? Nobody believes that. But that 
is what we are debating here. That is what this debate is about.

[[Page S8736]]

  Let me give you another example. In 1990, INS wanted to add an extra 
shift at the Honolulu Airport to deal with a surge in international 
flights in the afternoon. They had a backlog and had people waiting in 
line, so they wanted to add another shift in the afternoon to do their 
inspections.
  But there was only one problem. The American Federation of Government 
Employees said: No, you are not going to add that shift because we have 
a union contract that says we get a say in whether more personnel come 
on board to do part of our job. And you have already guessed it: The 
union took the case to the Federal Labor Relations Authority and, they 
ruled that the INS could not add the shift.
  Now fast forward through 9/11. Take into account that people died at 
the Pentagon and the World Trade Center. Are we really going to allow a 
union agreement that would make us go back and renegotiate the contract 
before we could put more INS agents in an area where we believe there 
is a clear and present danger to the lives of our citizens? Obviously, 
some people think we should. That is what the debate is about. But I 
cannot believe most Americans would think the President should not have 
the power to say: Now look, this is no Sunday picnic we are going 
through here. People's lives are at stake. We need more people here, 
and we need them today, and we are putting them here. And if you don't 
like it, go work somewhere else.
  Now, that may seem extreme to some people, but I don't see it as 
extreme. If somebody is coming through Customs in Savannah, and they 
might kill my mother, I feel pretty strongly about it. And when we are 
dealing with homeland security, these kinds of issues have to be taken 
on and addressed.
  Now, I have gone through enough of them in detail. Let me just touch 
briefly on a few of others: Prohibitions against special task forces 
operating in the Border Patrol. Listen to this, we have union 
agreements that prohibit us from stationing Border Patrol agents, for 
any period of time, where there are not suitable eating places, drug 
stores, barbershops, places of worship, cleaning establishments, and 
similar places necessary for the sustenance and comfort and health of 
employees. And I generally agree with that. We have a lot of great 
people who work in the Border Patrol. But when lives are at stake, when 
you have extraordinary circumstances, we cannot be required to go back 
and renegotiate a union work rule because an area where terrorists 
might cross the border does not have a dry cleaner. Dry cleaning is 
important, but it isn't that important.

  You get the idea, in listening to some of our colleagues, that when 
the President is asking for the right to suspend these work rules, it 
is just willy-nilly, wholesale, we don't like your looks, you are out 
of work.
  We are talking about being able to put a Border Patrol agent where 
there is no dry cleaner in an emergency; not that we want him to go off 
and live in a tent. But if he has to live in a tent for a few weeks or 
a few months to protect our citizens from being killed, I think they 
would willingly do it. I don't think it is asking too much to ask 
people to do it.
  I will touch very briefly on the others. Body searches of detainees: 
You would think we would have the right to determine, in terms of our 
Border Patrol and our INS, what the body search policy would be based 
on the threat. But we really don't have that right because, under a 
union work agreement, the union has to sign off on a change in policy. 
And in 1995, when we tried to change the policy, the Federal Labor 
Relations Authority overruled the Department and set aside the new 
search policy.
  We have had similar things happen with firearms. We have had similar 
things happen with what offices could be opened and closed.
  This is not some idle concern. This is not some theoretical power the 
President wants. This is something that is a real-world problem today. 
It is something that the Congress gave the President in the 
Transportation Security Administration, the Internal Revenue Service, 
and the Federal Aviation Administration. But yet, remarkably, in the 
bill before us the majority in the committee decided that, you don't 
want to give the President the same flexibility with regard to the 
Department of Homeland Security where you are talking about lives. I 
don't think people understand that, and I don't think they accept it.
  As another example of how out of focus with reality the current bill 
is, you might ask yourself, when we have had the Federal Government put 
up tens of billions of dollars to pay for what happened in New York to 
try to comfort the people who were hurt, to rebuild the Pentagon, to 
indemnify people, and as we begin the rebuilding process, you might ask 
yourself, in light of the new reality after 9/11, should Congress 
artificially make it more expensive for Government to help people 
rebuild something that is destroyed? Should they leave it the way it 
is, or should they make it less expensive?
  I think if you ask the American people, in light of 9/11, do you 
think Congress should add a provision that will raise construction 
costs for FEMA for emergency assistance to people who have had their 
property destroyed, their lives uprooted, should we pass a law that 
requires the Government to pay an artificially high wage to people 
working in those areas, or should we rebuild those things competitively 
so we can help more people, I think if you ask the American people, 
they would say, why should we pay a premium when we are trying to help 
people?
  Yet remarkably, almost unbelievably, in a bill that is supposed to be 
responding to 9/11, there is a provision which says that on any 
construction that we undertake in responding to a disaster, we have to 
pay an artificially high wage that numerous outside groups and groups 
within the Government have estimated would raise the cost of that 
construction in emergency assistance by 20 percent. Why in the world 
would you have a provision such as that in this bill? Why would you 
apply this provision called Davis-Bacon?
  It is explained in one way; it operates in another. The way it 
operates is, you look at the highest wage paid anywhere in that region, 
which can be a huge swath of the country, and then anything that the 
Government does in emergency construction in that area, it has to pay 
that wage, whether there are good people willing to work for less or 
not, whether everybody else is paying less or not.
  Why in the world would you put that provision in this bill? How could 
it possibly make any sense? The obvious answer is it doesn't make any 
sense. Nor are you going to hear people stand up and defend it.
  I have talked longer than I meant to talk. Let me conclude by simply 
making a couple points.
  A bill that is supposed to respond to an attack on our country and 
the great vulnerability we have as a result of that threat, that 
actually takes power away from the President to provide security and 
takes power away in the name of security concerns, is totally 
unacceptable. That is what this bill does.
  The President of the United States, if this bill became law, would 
have less power to use national security waivers to promote homeland 
security than Jimmy Carter had or than Ronald Reagan had or than Bill 
Clinton had and that Bill Clinton used. Eight Government agencies today 
are operating under those rules. Yet in a bill that is supposed to be 
promoting homeland security, we say: It was all right for Bill Clinton 
to do it prior to 9/11, but now we are going to take that power away 
from George Bush.
  No, you are not. That is not going to happen--not in this life. That 
is just not going to happen. And there is not going to be a deal cut on 
it. We are not going to adopt a bill that gives the President less 
power to respond to 9/11 than he had the day before it happened. It is 
just inconceivable and totally unacceptable.
  No. 2, the President has asked for some flexibility in putting the 
right person in the right place at the right time. He doesn't want to 
have to wait 6 months to hire somebody.
  The FBI agent, Colleen Rawley, who sent the cable into the home 
office of the FBI saying, we have people with terrorist links taking 
flight training and maybe somebody ought to look at it. Don't you think 
that maybe the President ought to be able to go back and promote that 
agent and give her a good pay raise? Also, I would have to

[[Page S8737]]

say that after the picture of these people who flew these planes in the 
World Trade Center was on every television set in America with their 
names, for the INS to turn around several weeks later and grant them a 
visa to come into the United States, I think the President should have 
had the power to say: Look, guys, we can't live with that, and you are 
fired.
  Now, you may think you should have those powers. I do. You may think 
you should not. But how do you justify that we gave similar powers to 
the Internal Revenue Service and to President Clinton but we will not 
give at least the same powers to the Department of Homeland Security 
under President Bush?
  Finally, there is just a lot of piling on in this bill. This Davis-
Bacon provision is piracy; it is just piracy. When we are spending more 
money on emergencies than we have ever spent, the idea that we are 
going to make the Government pay a 20 percent premium--something we 
didn't have to do before this bill passed but now we are going to make 
them do it--it is absolute piracy. I think people ought to be ashamed 
that it is in there. I haven't heard many people bragging about it 
being there, but sure enough, there it is.
  I wonder if we could not have had a bipartisan bill, if we had just 
started out with a set of principles: No. 1, whatever power the 
President had before 9/11 he would still have when this bill was 
written; No. 2, any flexibility we have ever given the President with 
regard to the Internal Revenue Service and its operation, the President 
ought to have, at a minimum, that flexibility, and No. 3, provisions 
that actually make the job harder ought to be debated another day. I 
believe if we had started with a set of principles--those 3--we would 
have had a bipartisan bill and 95 Members of the Senate would have 
voted for it. But for some reason, which I do not understand and cannot 
comprehend, we now have an issue which has become largely partisan. It 
all revolves around an effort to take away from the President powers he 
had before 9/11.
  The real stumbling blocks on this bill boil down to three things: An 
effort to take power from the President in terms of national security 
waivers, which is not going to happen; then, a refusal to give the 
President personnel flexibility greater but similar to what we have 
already done in the IRS; finally, gratuitous provisions, I guess, in 
this piling-on mentality such as putting Davis-Bacon requirements onto 
FEMA something we have never done before.
  Those things represent our problem, and I think as people understand 
them, I don't believe the provisions of this bill can be sustained. I 
do not believe that, if the public really understood what was going on 
here, they would put up with it.
  I am hopeful that we can have an opportunity to vote on these issues. 
I think we will have a substitute that will try to deal with them. I am 
sure the vote is going to be very close. But I think it is important 
that people understand the issues. Something is really wrong when we 
cannot even get an amendment accepted that says the President cannot 
have less power than he has today. I mean, that is almost unimaginable, 
but this bill does that. I think when people understand it, they are 
going to be very unhappy about it.
  I think the President's position is not perfect. I think he went a 
little too far on appropriations, but I think that can be fixed. I 
think on the key elements we are talking about now, the President is on 
the side of the angels. It is clear to me he is not going to budge, and 
so if we are unwilling to let the President have the power that every 
President since Jimmy Carter has had, then I guess we will have an 
opportunity to explain it to people, and I am sure they will ask for 
the explanation.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona is recognized.
  Mr. KYL. First of all, the discourse of the Senator from Texas has 
really pointed out the primary problems here. They are both political 
and substantive. The political problem is that there are those who have 
a different agenda than the President of the United States, who is 
simply trying to reorganize Government to deal with the threat of 
terrorism, to create homeland security for the American people.
  Instead of cooperating in that effort, there are those who would 
settle old scores, create new agendas, or add new things. Everybody's 
motives are pure in this. The problem is that by getting the 
legislation so complicated, so convoluted, and so loaded down with 
other things, they are going to destroy the original intent, which was 
to streamline the process and make it easier to deal with the threat of 
terrorists.
  My grandmother had great sayings, and one was: Too many cooks spoil 
the broth. It is not that we all should not have a hand in the drafting 
of the legislation, but I do think when you are trying to create 
something such as a new Homeland Security Department, you have to give 
some deference to the people in the executive branch who have 
painstakingly put this together, who have experience with making 
executive offices work, and to the President who has an idea of what he 
wants to do here. Instead, we have a lot of extraneous ideas floating 
around that I think, in the end, complicate it and add extraneous 
matters that don't have to be in there, such as Davis-Bacon 
requirements, which will add costs to construction.
  Ironically, they have the effect--I cannot believe this is the intent 
of the authors, but it has the effect of giving the President less 
power to deal with these problems than he has today. Right now, the 
President would be better off with the agencies as they exist, coupled 
with his authority, from an administrative or executive point of view, 
to move people around within those agencies; he would be better able to 
achieve his goals than by adopting the legislation that is before us.
  Let me point out a couple of other examples of why this is true. 
Senator Gramm had several examples in areas of the bill he was looking 
at. Let me refer to another area. For some time, there has been an 
appreciation of the fact that in dealing with border and immigration 
issues, we really have two separate types of issues, and while both are 
dealt with as a part of the Immigration and Naturalization Service, 
which is under the Justice Department, I think some consensus has been 
developing that, in some way, we need to separate the border control 
function, which includes entities such as the Border Patrol, and the 
investigative services, and so on.
  To separate those out--those are sort of law enforcement, border 
protection functions--to separate those from the more customer-
oriented--I don't like that word, but that is the word in vogue now--
customer-oriented services of immigration visas, student visas, and the 
legal immigration into the country, in other words--there is some sense 
to that division of responsibility.
  This is something the President had offered. Initially, it looked as 
if the legislation that would be written here contained a version of 
that division of authority. But as it turns out, under the Lieberman 
proposal, it gets a lot more complicated than that. I don't know 
whether this is really intended, and there doesn't seem to be any 
particular rhyme or reason why it is done this way, but it ends up 
being convoluted, very complicated, unnecessarily bureaucratic, 
ineffective, and confusing at end of the day.
  Let me describe precisely what I am talking about. Division B of the 
Lieberman bill creates the Immigration Affairs Directorate. That 
includes all immigration functions of the U.S. Government. So far so 
good.
  Division A of the bill creates, among other things, the Border and 
Transportation Affairs Directorate. So far so good. That is supposed to 
be the entity that deals with the Border Patrol--basically controlling 
illegal immigration and terrorism threats on our border.
  Under the Lieberman bill, it goes off track right after that because 
this Immigration Affairs Directorate is supposed to handle the visas, 
citizenships--all immigration functions, including all immigration 
enforcement functions, intelligence, investigations, detention, Border 
Patrol, and border inspections. All of those are moved into this 
immigration affairs box.
  One might say: What is left in the other box? I cannot find much that 
is left there.
  The problem is, we thought we had a solution to a problem. I thought 
everybody agreed to it. Now we are going

[[Page S8738]]

right back to the problem we had in the first instance by putting all 
of the law enforcement, antiterrorism, Border Patrol, investigations, 
detention, inspections--all of that--right back into the Immigration 
Affairs Directorate.
  One of the biggest priorities of the President, in addition to 
dealing with terrorism, in the homeland security bill is to streamline 
the process at the border. Coming from a border State, I can tell my 
colleagues this is critical, and it goes all the way from Customs, 
which has a significant responsibility here, to INS and all the related 
agencies.
  We have two somewhat contradictory needs that come together at the 
border. We have a big security need. We want to make sure no illegal 
immigrants, no illegal contraband, drugs, weapons, and the like are 
smuggled into the country. We saw recently how we were able to check 
out a ship that we suspected had cargo that was radioactive. It checked 
out OK, but we were able to have it stand offshore until we had an 
opportunity to run the equipment over it to make sure there was not a 
bomb or something radioactive on board. That happens every day at our 
land borders, at our seaports, and at our airports many hundreds of 
times--in fact, thousands of times. There is specialized equipment to 
make sure nothing is brought in that should not come into this country. 
That is critical to both the security of the country from a terrorism 
standpoint, as well as a law enforcement standpoint.
  At the same time, we want to enhance commerce. We do not enhance 
commerce by having long lines of trucks or cars or people waiting to be 
checked out before they can come into the country.
  On my border in Arizona, we have a huge problem with long lines, with 
trucks having to literally park on the Mexican side of the border and 
wait overnight to come through customs. That is detrimental to trade, 
commerce, to people and their lives.
  I was reacquainted with a former staffer from Tucson, AZ, whose 
family lives in both Nogales, AZ, and Nogales, Mexico--two towns on 
either side of the border. She told me how hard it was going back and 
forth visiting family and friends. She had to wait in line literally 
hours. Therefore, we have these two competing needs, and we have to 
streamline the process.
  Kudos to the Bush administration. They were coming up with a lot of 
good ideas about how to expedite the process of crossing for family and 
trade, while also making sure that we protect against contraband, 
illegal immigration, and terrorists entering the country.
  The Lieberman bill, by contrast, gets us all the way back to where we 
started by refusing to move the enforcement function out of the 
immigration affairs box and into the Border Affairs Directorate where 
it belongs. Instead of streamlining our activity at the border, I fear 
it will be the same mess it has been in the past. I hate to describe it 
that way, but that is exactly the way it is.

  The administration's proposal, by contrast, created this separate 
Border Transportation Protection Directorate, and that is where all of 
the Border Patrol activity, investigations, and the like, is embodied. 
As I said, under the Lieberman bill, all of that has been put into this 
immigration affairs box.
  At the very least, it seems to me the Border Patrol and border 
inspections functions should be included in the border and 
transportation affairs box. One might ask: Can't reasonable adults work 
on this and get this straight? We have tried.
  What I am saying, Mr. President, is there will be a substitute 
offered. Senator Gramm has mentioned this, as has Senator Thompson. The 
substitute is a compromise of what the President proposed and features 
of the Lieberman bill and, I suspect, also features of the Byrd 
amendment. I believe this issue is pretty well straightened out in this 
compromise substitute that is going to be offered. It puts most of 
these functions that are law-enforcement-related functions, the 
antiterrorism-related functions back into the right box.
  If we do not do this, the bottom line is security is going to be 
compromised. This is not something that is irrelevant and unimportant. 
It is very important to the whole purpose of developing the homeland 
security bill.
  One might ask why this border transportation affairs box was created. 
What is left in it? The primary function that is left is Customs. Yet 
it describes the Customs Service still as a separate entity. So I am 
not exactly sure how that is going to work. Presumably, Customs will 
continue to operate almost independently from the Under Secretary of 
the Border and Transportation Directorate, which is not what was 
intended. It has the Coast Guard. Again, that is deemed a distinct 
entity. And it has the Animal and Plant Health Inspection Service and 
the Federal Law Enforcement Training Center, but the Federal Law 
Enforcement Training Center trains what? Border Patrol agents. We have 
a division there that does not make sense at all.
  This is very confusing, it is unnecessarily complicated, and it is 
just another example of what Senator Gramm was talking about.
  Let's get back to the simple, direct approach that has been presented 
by the administration. That is a much wiser approach. It moves all the 
immigration affairs, with an emphasis on the importance of immigration 
services, to the Border and Transportation Protection Directorate, and 
it sends a message that we are serious about streamlining all of our 
activity at the border, whether it be the immigration-related activity 
or the law enforcement activity, and still effectively fights 
terrorism.
  Let me mention one other problem before I finish. It is a related 
problem with this division B, the immigration affairs. It has language 
included which would abolish the Executive Office for Immigration 
Review and create within the Department of Justice what amounts to an 
independent agency for immigration judges.
  Immigration law is complicated enough. There are a whole series of 
precedents. There is a process by which you have a decision made, a 
review of that decision, and eventually the final review all the way up 
the chain in the Department of Justice by the Attorney General of the 
United States. There is a body of case law built around this. There are 
procedures that are built around it. As far as I know, those procedures 
are working. I do not know of any reason, for homeland security, why we 
would want to change that. This legislation fundamentally alters the 
INS administrative process.
  It seems at the very least the language, which designates when and 
how this new Executive Office for Immigration Review operates, needs to 
be changed so the checks and balances that exist today in the 
Department of Justice will either continue to exist there or in the new 
Homeland Security Department.
  Unfortunately, this simply has not been written in a way that will 
guarantee we have the same kind of review and fairness and justice in 
the immigration process.
  There are other things. I have a 5 o'clock engagement, so I am not 
going to go into more detail at this time. As I said, I do not question 
at all the motives of those who come up with different ideas on how to 
do different functions.
  The problem is we all have our own wonderful ideas about how 
everything should be fixed, and if we try to do that all in the 
homeland security bill, we may be biting off more than we really need 
to chew. We may need to get back to the basic task, which is to ensure 
we can protect against terrorism and have real homeland security and 
have a reorganization of Government that enables us to do that and not 
take on every other issue that people have that they have wanted to 
deal with and settle up over the years and use this bill for the 
opportunity to do that.
  Those things that work well enough the way they are, leave well 
enough alone. But with respect to this question of border security, I 
think we have to pay a lot of attention to the experts who have 
suggested it is critical the emphasis on border security be recognized 
and that we understand what happens when we put the group of people who 
do that work in a box or a division or directorate which has other 
responsibilities.
  This is arguably one of the most critical functions of the 
reorganization of homeland security, and we have to get it right. I am 
hoping my colleagues will consider, when we offer the substitute that I 
believe fixes this and gets

[[Page S8739]]

it back more to the original intention, that whatever else they may 
think about aspects of the Byrd amendment or the Lieberman bill, they 
will recognize this is an improvement and support that feature of the 
substitute.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. LIEBERMAN. 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. LIEBERMAN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Bayh). Without objection, it is so 
ordered.
  The Senator from Connecticut.
  Mr. LIEBERMAN. Mr. President, earlier I spoke at some length 
expressing my opposition to the amendment introduced by Senator Byrd. 
Members have come to the floor and have spoken not so much on the 
amendment offered by the Senator from West Virginia as they have on 
another question which engages some considerable debate among Members 
of the Senate, and that is the question of civil service and management 
flexibility. I want to respond to the statements of the Senator from 
Texas and the Senator from Arizona and, to some extent, my friend, the 
Senator from Tennessee.
  I have been disturbed and disappointed by the criticisms of the 
legislation that came out of our Governmental Affairs Committee, which 
are based on the claim that it fails to give the President and the new 
Secretary of Homeland Security the authority they need to manage an 
effective Department. That is a serious charge and one that I 
respectfully say is simply not right.
  Those who have followed the development of this proposal through our 
committee know my intention since the beginning has, in fact, been the 
opposite, which is to give the President and the Secretary all the 
power they need to build a strong, efficient, and effective Department; 
in fact, more power to do so than this President wanted for some period 
of months. Ever since last October, along with other Members of the 
Senate, I have been asking for a Cabinet Department with authority and 
accountability precisely because I was convinced the President's 
initial creation of an Office of Homeland Security, headed by Governor 
Ridge, without statutory authority or budget authority, was too weak to 
get the job done.

  It seems ironic to me now that the President, who for months resisted 
the idea of a Department of Homeland Security and said that the Office 
of Homeland Security, headed by a coordinator, was all we needed to 
safeguard the Nation, now says that the Department we would create 
gives him inadequate authority. I think this debate is really a detour 
from what should be our urgent common cause, and that is the creation 
of a new Department that will protect the security of the American 
people, about which we agree on the majority of its components.
  This is a debate that is being conducted in a kind of inside-the-
beltway vocabulary and not in good old, plain spoken English.
  On civil service rights, union rights, appropriations, and transition 
authority, the President claims he deserves flexibility and that our 
legislation denies him flexibility by threatening to handcuff him and 
the Secretary from exercising their rightful authority, but the 
President's pleas for flexibility are, in fact, a request, in my view, 
for broad and unchecked authority in this regard. If we in the Congress 
do not provide that broad and unchecked and, in my opinion, often 
unprecedented authority to this President and Secretary, we are being 
branded as inflexible.
  Congress has a duty to the American people in this case to write the 
civil service laws. If we in the Senate turn over all that 
responsibility and authority to the executive branch, simply because 
the President urged us to do so, I suppose one could say it might 
streamline things somewhat but we would be very much like a board of 
directors yielding all authority to the management--and we have seen in 
recent times what can happen when boards of directors do that.
  President Bush and Governor Ridge suggest our legislation will create 
an ineffective Department of Homeland Security because we decided not 
to give them the authority they requested in the President's bill to 
unilaterally waive and rewrite civil service law. That is what they 
want. Extraordinary new powers. And they claim that without that 
authority this Department is somehow not even worth creating, and they 
are threatening a veto if they do not get exactly their way on these 
provisions. That, in my opinion, is a distortion of the facts and a 
confusion of priorities.

  The fact is, the Department of Homeland Security our legislation 
envisions will be a modern, performance-driven Federal agency, one that 
the Secretary and the President will have extensive authority to 
manage. The committee-endorsed bill contains flexible civil service 
provisions, including a broad, bipartisan civil service reform package, 
provisions that strengthen the administration's hand when it comes to 
managing the new Department.
  But we have incorporated these reforms responsibly, not haphazardly, 
preserving the central idea of the civil service system, which is 
accountability in the workplace. That is at the core of the civil 
service system that was codified in law more than 20 years ago. It 
would preserve the appropriate authority in the legislature to write 
those laws.
  I ask my colleagues to look carefully and honestly at what the civil 
service system is, what kinds of reforms we provide in our legislation, 
and what the amendments being discussed to alter the civil service and 
collective bargaining rights of Federal employees, as protected in our 
committee's work, would do.
  The civil service system, first, is often derided, but rather than 
taking the road of caricature, let's try to understand what it does and 
why it was developed. Once upon a time in government the rule used to 
be to the victor goes the spoils--all the spoils. Most of us know about 
the age of the spoils system officially ushered in by Andrew Jackson, 
in which elected officials used the Federal payroll to reward their 
friends and supporters who, not surprisingly, were not always the most 
prepared people to fulfill those particular functions. That may have 
been good for the politicians of their day, but it wasn't good for the 
American people because it produced a government with minimal 
institutional memory, minimal incentive for meritorious employees to 
work hard, to rise through the ranks, and with both of those, minimal 
public trust.
  The civil service system changed that, moving the executive branch 
from a spoil system to a merit system with limits on favoritism and 
cronyism and to a transparent framework for attracting and retaining 
the most talented public servants. That system has evolved over time, 
but at the core it is still designed to shield most public servants and 
the public they serve--us--from the forces of partisanship and 
favoritism and special interest influence that can erode the merit-
based workplace in any administration. When the opponents of this 
legislation deride the civil service system, these are the principles 
they deride. When they mock the system, these are the values they mock.
  Today, the top echelons of Departments are subject to political 
appointment, as they should be, to allow a President to select the 
loyal agency leadership he needs and deserves. But the bulk of public 
employees are protected against the whims of changing political 
climates. We now understand that effective Departments are made up of 
both types of employees, working closely together and depending on one 
another. Career civil servants who develop expertise, know the ins and 
outs of Government, and carry on the vital work of our Government from 
one administration to the next, on the one hand; and 
political appointees who lead the Departments, set high-level policy 
and advance the agenda of the President's administration.

  I will not stand here and defend every phase or clause of the civil 
service system, just as I doubt anyone would stand and defend every 
clause of the Tax Code. At times the system has been too slow or too 
rigid to adapt to the changing workplace, to recognize and reward 
excellence and to root out failure. Some of the flaws have been

[[Page S8740]]

fixed over time. Others have not and remain challenges.
  I strongly support the system's fundamental principle which is to 
provide a check on the politicalization and patronage to which 
Government agencies will otherwise be susceptible in any 
administration. Civil service laws not only assert that personnel 
decisions should be based on considerations of merit, but they provide 
procedures and remedies if those principles are violated.
  Think for a moment what it could mean to lose the public 
accountability assured by the civil service system. Talented senior 
managers, who dedicated their careers to public service, could be 
pushed out and replaced with patronage appointees. Potential 
whistleblowers at all levels of the organization would know they have 
little or no real protection against retaliation. Remember, we all 
praised Colleen Rowley when, in the courageous memo, she exposed the 
FBI's weaknesses so we could repair them. Those who would dismantle the 
civil service system make it more likely that the Colleen Rowleys of 
tomorrow and the Department of Homeland Security would be silenced, not 
heard.
  There was an actual case following exactly that pattern that occurred 
with a Federal employee who became a whistleblower after September 11, 
crying out that there was inadequate protection on our northern border. 
In fact, he was suspended by his Department. His union came to his 
defense and he was given back his job because a suspension for blowing 
a whistle in pursuit of the public interest was irrational, unfair.
  Employees' union representatives, if allowed at all, could be 
stripped of much of their ability to protect rank-and-file workers 
against abusive or self-protective political appointees.
  Veterans and minorities under the proposals made by the President for 
so-called management flexibility can see their statutory rights ignored 
or left with insufficient remedies. That is why our committee did not 
just deride the system. We tried to fix it, and I think made some real 
progress. Rather than just handing the President the authority to 
eliminate whole chunks of existing civil service protections, we 
developed the details for the key reforms we need to make this new 
Department work well.
  I believe existing laws also give the President and Secretary far 
more authority and flexibility to run an efficient, effective, and 
performance-based Department of Homeland Security than the President 
and Governor Ridge have acknowledged. The administration says that the 
new Department cannot function without ripping up the civil service 
system and starting from scratch. That is a myth. The General 
Accounting Office reported a few years ago describing the civil service 
law as codified in title 5 of the United States Code:

       We found that, over the years, Title 5 has evolved to give 
     federal agencies more flexibility than they once had--and 
     often, more than they realize--to tailor their personnel 
     approaches to their missions and needs.

  In a similar vein, last year the Bush administration's own Office of 
Personnel Management issued a handbook entitled ``Human Resources 
Flexibilities and Authorities in the Federal Government.'' That 
handbook painted a much different picture of the civil service law than 
we are now hearing from the administration:

       We have designed this handbook to communicate with you 
     about the myriad human resources (HR) flexibilities and 
     authorities currently available and how they can be used to 
     manage your human capital challenges. We serve as a resource 
     for you as you use existing HR flexibilities to strategically 
     align human resources management systems with your mission. 
     Through this handbook, you may be surprised to discover how 
     flexible Title 5 is in meeting your organizational needs.

  I respectfully suggest to the White House that perhaps, if they 
looked at this handbook put out by their own Office of Personnel 
Management, they, to use the words of the handbook, would be:

     . . . surprised to discover how flexible title 5 is in 
     meeting your organizational needs.

  If we in Congress were to believe the administration's recent claims 
that the civil service system is a hidebound anachronism, we, too, 
might be surprised to discover how flexible title 5 actually is.
  There is substantial flexibility in existing law, as I have said. But 
to rise to the challenge of the war against terrorism, we wanted our 
legislation to go further. So we have incorporated sensible consensus 
reforms to improve the way Government manages personnel. We have 
updated the civil service system to give the Secretary of Homeland 
Security and the President all the tools they could conceivably need to 
build the most effective Department of Homeland Security without 
compromising the underlying values of the civil service system. In 
fact, if our legislation, as currently before the Senate from our 
Governmental Affairs Committee, is adopted, the Secretary of Homeland 
Security will literally have more management flexibility than any 
Secretary has today.
  Incidentally, I want to give special credit to Senators Voinovich and 
Akaka, who worked together over a long period of time to develop the 
reforms in our bill. We have adopted these significant and 
governmentwide improvements in the civil service system.
  To support research and development, we also authorized the Secretary 
to use innovative techniques to hire personnel in the new Science and 
Technology Directorate, for instance. Taken together, this package 
gives the Secretary the ability to speed up staffing of new employees, 
to recruit and retain top science and technology talent, to reshape the 
Federal workforce, to procure temporary services outside the civil 
service system when there is a critical need, to provide more effective 
bonuses for exemplary service, and to make other valuable changes to 
help the new Department attract, maintain, and motivate the best 
employees.
  Senator Voinovich has been a tireless advocate on behalf of a 
principle and a reality that does not get much attention around here 
but is critically important to the functioning of the Federal 
Government and that, again, is described in a Washington beltway term, 
``human capital management.''
  The point is, how do we get the best people to come to work for the 
Federal Government and then get them to have the widest latitude for 
their talents and encouragement to continue in Federal service? Part of 
that clearly is the protections offered by the civil service system.
  I cannot emphasize enough that the provisions contained in our 
legislation have been hammered out over time with many contentious 
issues being carefully and, I might say, cooperatively resolved in a 
bipartisan fashion. We all know how detailed this can be and how much 
care rewriting the law demands. The reforms we have incorporated, the 
Voinovich-Akaka reforms, reflect collaboration, consensus building, and 
the input of countless experts.
  I want to say particularly that Senator Akaka, our distinguished 
colleague from Hawaii who is chair of the Governmental Affairs 
Subcommittee on International Security Proliferation and Federal 
Services, has now been working hard for 3 full years, with Senator 
Voinovich of Ohio and others, to adapt the civil service system to the 
demands of the modern workforce and contemporary Government. They are 
unsung heroes in bringing human capital management into the 21st 
century. Out of their collaboration has emerged this bipartisan package 
of bold but sensible civil service reforms that are incorporated in the 
bill that came out of the Governmental Affairs Committee.

  Now, on the other hand, the administration wants to throw everything 
out. Our bill has done, I think, the difficult work--but the work that 
Congress has an obligation to do--of separating the good from the bad, 
discarding the chaff and keeping the wheat. In fact, our reforms do 
more to constructively change what is commonly viewed as one of the 
most inflexible areas of civil service law--namely, the ability to 
swiftly hire top-flight talent--than any other proposal I have seen, 
and certainly any other that is on the table.
  The President would wreak havoc on the current framework and put 
nothing in its place. I hope critics of the approach the committee has 
taken will look carefully at these flexibilities I have described, 
which are substantial indeed. Let me elaborate just a bit more on what 
some of those authorities are.
  First, we give the administration the power to put the right people 
in the

[[Page S8741]]

right place at the right time. Existing law allows the Secretary to 
move employees around in the Department, either by permanent 
reassignment or temporary detail. I would guess that most Members do 
not appreciate that. Existing law allows the Secretary to move 
employees around the Department, either by permanent reassignment or 
temporary detail. Collective bargaining agreements may not affect the 
authority of a manager to assign employees and to assign work. Again, 
in all the discussion about collective bargaining and national 
security, this is a fact that is being overlooked. It reminds us how 
limited are collective bargaining rights of Federal employees. They 
can't strike--that is prohibited by law. But collective bargaining 
agreements actually may not deal with the authority of a manager to 
assign employees and to assign work. Any employee who refuses to be 
reassigned can be fired, and existing law allows managers to offer 
recruitment bonuses, special salary rates, and even high critical pay 
levels to attract high-quality employees.
  New provisions in our legislation significantly simplify hiring so 
that employees can be hired with little or no red tape. A government-
wide amendment offered by the aforementioned Senators Voinovich and 
Akaka allows for the direct appointment of candidates to positions that 
have been publicly noticed when it has been determined by OPM that 
there is a severe shortage of candidates and a critical hiring need.
  A second Voinovich-Akaka amendment will allow agencies to select 
employees without applying the rule of three, under which agencies may 
not look beyond the three top-scoring candidates for a competitive 
position.
  To accommodate special needs of the Department, the Secretary may 
procure personnel services whenever necessary, due to an urgent 
homeland security need, for periods of not more than a year, without 
regard to the usual pay caps. Let me go back. Our legislation says to 
the Secretary of the new Department of Homeland Security: You can 
actually enter into a contract with people for services for not more 
than a year without regard to the usual pay caps when you say there is 
an urgent homeland security need to do that.
  Finally, in this regard, to support research and development, the 
Secretary, as I mentioned, is authorized to use innovative techniques 
to recruit top science and technology talent.
  In fact, the bipartisan package of flexibilities in our legislation 
offers more in the area of hiring than does even the bill that passed 
the House, which does not include the direct hire authority in cases of 
critical need.
  Second, the Governmental Affairs Committee legislation amendment 
before the Senate gives the Secretary new authority to reward good 
performance so we can create a Department that encourages excellence 
among all its employees. Starting under existing law, the civil service 
law provides managers numerous avenues for providing incentives and 
rewards for good performance. Managers can decide, for instance, 
whether employees have earned raises known as step increases based on 
performance, and can award further ``quality step increases'' for 
exceptional performance. Managers can also grant incentive awards for 
overall high performance or for exceptional work on a particular 
assignment.

  Managers can pay special bonuses to help with retention or relocation 
of particularly desirable employees.
  Contrary to what some in the Administration have been saying, civil 
service rules impose no cumbersome process for managers to gain 
approval of a pay raise. President Bush and the new Secretary will be 
free to fashion as streamlined a process for giving merit raises as 
they can.
  The bipartisan Voinovich/Akaka amendments included in our legislation 
strengthen performance bonuses for senior managers, by revising 
outdated rules that had required that bonuses for senior employees be 
spread over two years.
  Finally, it is critical to recognize that under existing law, the 
administration has the power it needs to discipline and remove poor 
performers.
  Under civil service law, during the first year of employment, a 
Federal worker may be fired for virtually any reason without notice. 
Following the one-year probationary period, under civil service 
statutes, an agency must grant the employee a reasonable time to 
improve performance, after which the agency owes the employee 30 days' 
notice of a decision to demote or fire. And contrary to stereotype, 
outside appeals are handled after an employee is off the payroll.
  If a manager is sufficiently concerned about an employee's poor 
performance or misconduct, the employee can be pulled from duty 
immediately, without hesitation or red tape. If necessary for national 
security, the employee may be suspended without pay immediately. After 
investigation and review, if necessary, the employee can then be fired 
without appeal. The President can authorize any agency head to suspend 
and fire where necessary for national security, and the President is 
free to give this power to the new Secretary of Homeland Security.
  The allegations which have been made on the floor that we will limit 
the powers of the President regarding national security just do not 
take into consideration this provision in the law. The President can 
authorize any agency head to suspend and fire where necessary for 
national security immediately and without pay.
  I have seen some opponents of our approach contend that under our 
legislation, incompetent, irresponsible, or even intoxicated employees 
couldn't be removed from duty. This is simply wrong. And I regret that 
this myth is being stated as fact occasionally by one or another 
representative of the administration. The truth is, under current law, 
such an employee can be removed from duty immediately, without 
hesitation or red tape. And the employee can be taken immediately off 
the payroll if the Secretary determines that he or she might endanger 
national security.
  But that is not all. We understand the Secretary may need more 
authority down the road. That is why we explicitly leave the door open 
for the executive branch to get more power, as needed--because neither 
we, nor, I believe, the administration, yet knows what the experience 
of assembling this big new Department will teach its managers about the 
specific modifications to the Department's personnel system that may 
prove necessary. We want to give the Congress and the administration 
the opportunity to tailor additional authorities and flexibilities to 
the specific circumstances we face.
  And they are free to come back and make that case to us. During the 
initial 18-month startup period for the new Department, our legislation 
specifically requires the Secretary to submit to Congress semi-annual 
legislative recommendations that will help integrate the disparate 
personnel systems in the new Department and will provide any further 
personnel authority that is necessary to meet the needs of the new 
Department.
  All we ask is that these requests are based on some experience, not 
on ideology or assumption. We want them to be specific, not hopelessly 
broad. And we want the process to respect the proper role of Congress 
to consider the proposals and write that law.
  It is not appropriate for Congress--it has a familiar ring to it, I 
say to Senator Byrd--to write a blank check for a new Department 
regarding the civil service law allowing them to disregard that law--no 
more appropriate than it would be for us to write a blank check for it 
to give a new Department blanket exemption, for instance, from 
environmental law, civil rights law, or protection of the rights of the 
disabled. Rather, what we should do--and what we do do in our bill--is 
to provide a swift and acceptable mechanism to provide more authorities 
if and when the administration makes the case that they need them.
  In developing the provisions of our bill that invite the Secretary to 
come back to Congress with requests for further personnel flexibility 
if he deems it necessary, our committee was influenced by my experience 
working with the Comptroller General when he asked a couple of years 
ago for additional personnel authority at GAO. He advised the 
Governmental Affairs Committee that the legislative flexibilities he 
received might not be appropriate for other Federal agencies, but that 
the process he and Congress undertook to

[[Page S8742]]

justify that legislation would be appropriate. I would like to read an 
excerpt from Mr. Walker's testimony on that subject:

       Congress can play a defining role in determining the scope 
     and appropriateness of additional human capital flexibilities 
     agencies may seek through legislation. For agencies that 
     request legislative exceptions from current civil service 
     constraints, Congress can require that they make a sound 
     business case based on rational and fact-based analyses of 
     their needs, the constraints under which they presently 
     operate, and the flexibilities available to them. For 
     example, before we submitted human capital legislative 
     proposals for GAO last year, we applied the due diligence 
     needed not only to identify in our own minds the 
     flexibilities we need to better manage our human capital, but 
     also to give Congress a clear indication of our needs, our 
     rationale, and the steps we were committed to taking in order 
     to maximize the benefits while managing the risks. The 
     process we followed included a thorough analysis of our human 
     capital needs and flexibilities, clear standards of 
     implementation, and multiple opportunities for employee 
     involvement and feedback.

  GAO's advice on this subject was even clearer in another submission 
to the committee, which said, ``agencies should be required to prepare 
a business case and take steps to address their challenges within 
existing law before being granted any additional legislative 
flexibility.''
  In other words, Comptroller General Walker laid out the case for what 
reforms he needed. He asked for specific authorities--not for a blanket 
exemption. We considered his request, and we gave him what he wanted.
  That is the way it ought to work. That is the way our committee's 
proposal regarding civil service would have it work.
  Some of my colleagues have claimed that in our bill, we gave less 
personnel flexibility and authority to the Secretary of Homeland 
Security than we in Congress gave to the heads of the FAA, the IRS, and 
the TSA. That is just wrong. It is not true that Congress simply 
granted personnel flexibility to the heads of those agencies. To the 
contrary, the personnel flexibilities that Congress provided for those 
agencies is shared through a collective bargaining process between 
agency managers and the Federal employee unions at those agencies.
  And in the best companies in our country today, following modern 
management techniques, the old labor-management divisions have ended. 
People are working together in a cooperative fashion.
  I visited an automobile parts company in Ypsilanti, MI, a couple of 
years ago. There are remarkable changes. The workers on the floor elect 
the foreman for a set period of time. They can reelect him or not. The 
executives moved out of their offices and turned their office space 
into a fitness center for all employees. Management moved their desks 
right out on the floor where they are working together.
  That is the standard for modern management practice. That is what we 
adopted for the IRS. For example, we granted several authorities that 
can be applied to unionized employees. There is real management 
flexibility--where there is a written agreement between the union and 
the IRS.
  I have heard references from some of our colleagues who say they are 
upset about our civil service provisions which basically protect 
existing law and ask for more reforms. They have cited the IRS as an 
example of what good can be done when an agency is given authority.

  But, again, we gave the IRS authority to carry out management 
flexibilities with the written agreement of their employees' union, and 
it has worked. At the FAA, for instance, agency managers must bargain 
with Federal employee unions over wages, and also must negotiate with 
the unions in developing and making any changes to the agency's 
personnel management system.
  So in some ways the IRS and the FAA follow much more of a private 
sector model today, which is very progressive, with lessening of civil 
service controls in certain areas, and with a corresponding increase of 
the role of unions and collective bargaining in establishing the terms 
and conditions of employment.
  It is true that our legislation does not in fact go down that road, 
but of course neither does the administration's proposal for the 
Department of Homeland Security. Some of the proposals I have seen, 
from the White House and elsewhere, including from colleagues in the 
Senate, would empower the Secretary to cut back on the rights and roles 
that Federal employees and their unions would have at this new 
Department.
  I have not seen a proposal from the administration for the Department 
that would replace civil service protections with an enhanced statutory 
role for collective bargaining and the unions. So I ask, why do 
administration supporters, on the floor in this debate, keep referring 
to the IRS and FAA precedents as though they were advocating anything 
like them now? If they were really advocating something like them, I 
think we might have the basis of a bipartisan agreement.
  Let's give the Secretary of the Department of Homeland Security broad 
authority to enact further civil service reforms with the written 
agreement of the unions representing his or her employees. It has 
worked at the IRS and the FAA, and it might well work at the Department 
of Homeland Security.
  As I said, President Bush does not seek to seriously reform the civil 
service system or make a solid business case for any new authorities. 
Instead, he really seeks to rip out big chunks of civil service law and 
to push that change through in the context of this urgent common cause 
of creating a new Department of Homeland Security.
  Though the House, in its bill, has done a bit more homework, it still 
fails the test. The House bill states that several fundamental civil 
service provisions will apply to the new Department. Those include 
requirements to provide a preference in hiring and retention of 
veterans, which the President's proposal would eliminate; the 
protection of whistleblowers, which the President's proposal would 
eliminate; it prohibits nepotism, favoritism, and other forms of 
discrimination, which the President's proposal would eliminate; and it 
protects the right to unionize, which the President's proposal would 
also eliminate.
  However, almost all of these rights are provided in name only in the 
House bill, unfortunately. In major areas, the House bill would then 
turn over, again, a blank check to this administration to waive or 
rewrite civil service protections and procedures, with the 
administration having given us no indication of how they will use this 
extraordinary power.
  Second, the House bill states that employees would be able to join 
unions, but then allows the administration to unilaterally rewrite all 
the statutory rules of collective bargaining that give unionization 
whatever significance it has under existing Federal law.
  Third, the House bill would also turn over power to 
the administration to rewrite other central elements of the civil 
service system, including performance appraisal, discipline, and job 
classification and pay. These aspects of civil service provide for 
fairness across Government, avoid destructive bidding wars among 
agencies, and provide employees protection, most importantly, against 
unfair, arbitrary, or discriminatory decisions. The House bill 
essentially throws out all of those.

  Finally, under the House bill, as the proposed new rules are 
developed for the Department, the bill relegates union representatives 
to the role of receiving notice and making recommendations for the 
Secretary's consideration. This is far more constrained than the 
traditional function of unions, limited as they are under Federal law, 
which is to bargain over matters where management has discretion.
  When Congress enacted legislation, again, allowing the FAA and IRS to 
develop alternative personnel rules, we specified that the unions would 
have a place at the bargaining table regarding those rules. That is 
fair, that is progressive, that is productive, and that is modern. The 
House provision limiting the role of employees and their 
representatives is unfair and unacceptable.
  Finally, the choice before us on civil service is simple: Improve it 
or remove it. Make it better or rip it up. While our legislation lives 
up, in my view, to Congress's responsibility to improve the civil 
service system, the alternatives proposed by the administration and in 
the House bill don't meet that responsibility. They, to use a word 
familiar to us during this season, punt. They leave it all to the 
administration.

[[Page S8743]]

They would have Congress leave it all to the administration to rewrite 
the law.
  That would be problematic in just about any realm, but it is 
particularly problematic here, as the administration represents 
management, one of the parties directly affected by the law.
  Powers are strictly separated in our constitutional system for a 
reason. I have not hesitated to make clear that I believe the 
President, in his role as Commander in Chief, for instance, should have 
substantial powers to determine when and how we take military action to 
protect national security. But rewriting laws is the job of Congress, 
the responsibility of Congress. Indeed, the separation of powers is 
especially important in the case of civil service law, again, for the 
reason I have stated: Because the administration is the management, it 
is one of the two parties directly affected by the law. Congress, in 
effect, must play the role of a fair and honest mediator, broker, and 
legislator. Only Congress should change the law.
  So we have two choices here: To embrace significant reforms, as 
included in our bill, and leave additional changes that may seem to be 
necessary, after some experience, for consideration in the future, 
based on a solid business case made by the Secretary is one choice. On 
the other hand, we can simply abdicate and give the administration the 
right to rewrite the current civil service system by administrative 
fiat. That, of course, is an easy choice for me.
  Also, I would state, in response to the underlying amendment the 
Senator from West Virginia has proposed, what we have done here in 
civil service is very much similar to what we have done in most of the 
rest of the bill; that is, we have tried to dispatch Congress's 
responsibility to write the law, not to give the administration a blank 
check in any area, to respect the executive branch and the need for 
authority in the executive branch, but to understand that 
constitutionally we have the responsibility to legislate. That is 
exactly what we have done in a progressive fashion with regard to the 
civil service laws for our Federal workers.
  I had not intended to speak on this this afternoon, but those of our 
colleagues who have come to speak not on the Byrd amendment but against 
the civil service provisions in the committee's proposal required a 
response on this day.
  I thank the Chair and yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                  unanimous consent request--h.r. 5093

  Mr. REID. Mr. President, today we have tried to come up with some 
type of resolution of the fire suppression amendment that has been 
holding up this Interior appropriations bill for some time. We have 
been unable to do that. As a result of that--and I have spoken with 
Senator Byrd--I do not think the Interior appropriations bill is going 
to move forward.
  Until there is some way to resolve that amendment, I ask unanimous 
consent that the order with respect to consideration of the Interior 
appropriations bill be modified so that the bill may be temporarily 
laid aside and that it recur upon the disposition of the homeland 
security bill.
  The PRESIDING OFFICER. Is there objection?
  Mr. CRAIG. Mr. President, reserving the right to object.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Mr. President, I appreciate the frustration the assistant 
leader is going through at this moment trying to resolve an issue on 
the Interior appropriations bill about which he and I are concerned and 
move it forward and at the same time move homeland security forward.
  Today we have worked to facilitate both of those bills, and I have 
encouraged the majority leader and the assistant leader to allow a vote 
on my amendment, which is pending on the Interior appropriations bill 
or, if not, a stand-alone vote, and then to allow a side by side, with 
their alternative, by a majority vote of either. That is not what they 
apparently want to do at this moment.
  I do not want to see the Interior appropriations bill laid aside. We 
have critical fire money in the bill. We have critical drought money in 
the bill for agriculture. The Interior appropriations bill is very key 
to my State.
  At the same time, we must bring this Senate together on some way of 
dealing with the crisis in our forests today that has resulted in 
devastating fires across the West. I feel very strongly about that. At 
the same time, I know the leader has worked hard to facilitate homeland 
security. Certainly it is very evident this side is not holding up that 
bill at this moment. We want the votes. We want to move the issue, deal 
with it, and get it to the President's desk before we adjourn or recess 
for the November elections. Under those considerations, dual track is 
important.
  I say to the leader, give me a vote. Give me a vote on the Craig-
Domenici amendment up or down--however. But I do believe we deserve a 
vote. I do believe it is critically important that the Senate of the 
United States express its will on a 6.5-million-acre loss to wildfire 
this year and thousands of homes and well over 25 lives. We must deal 
with the issue.
  This situation has cost us--and I think Senator Reid will agree--$800 
million extra in this budget, to fight fires or to pay the debt of the 
fires that have already been fought. We will spend well over $1 billion 
of extra money this year. With that, I must object.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from Nevada.
  Mr. REID. Mr. President, I am disappointed in that I believe we need 
to move forward with homeland security and stop treading water on this 
Interior appropriations bill. The Interior appropriations bill is as 
important to Nevada as any appropriations bill we do. There are many 
provisions in this bill that will help Nevada, and other issues that 
are waiting to be approved by the two managers. I would love to have 
the Interior appropriations bill done.
  For my friend, the distinguished Senator from Idaho, to say he wants 
a vote on his amendment, we agreed, more than a week ago, to have side-
by-side amendments: their amendment, our amendment. There would have to 
be a 60-vote threshold because, whether we like it or not, the rules of 
the Senate are here, and on matters of importance--I should not say of 
importance. We have a lot of matters that are important that do not 
require 60 votes. Matters that are in controversy take 60 votes. This 
is one of those matters that are in controversy. We simply have to go 
forward on that basis. That is why we are unable to have a simple 
majority vote on their amendment or our amendment, because we cannot 
get 60 votes on our amendment and they cannot get 60 votes on their 
amendment.
  It is hard for me to comprehend why, when just a few days ago we 
approved money for drought assistance, which received 79 votes. As we 
speak, ranchers and farmers throughout America are in deep need of 
these moneys, and until this legislation passes, they are not going to 
get that money. So those people who voted for that drought assistance 
are now preventing us from going forward.
  That does not mean, Mr. President, if we get off this bill, we will 
not somehow be able to do the Interior appropriations bill. Maybe we 
can. Also, what it does not mean is, if we do not do the fire 
amendment, as my friend from Idaho thinks it should be done this year 
in this bill, that it will not be done in some other form, some other 
bill. I hope that as time goes on, we are going to be able to spend 
full time on homeland security. If we do not, it is going to be hard to 
finish that bill, especially if on the Interior appropriations bill we 
are treading water and accomplishing nothing. We have all these other 
appropriations bills we need to do.
  I, frankly, see the picture very clearly. It seems to me the minority 
does not want us to pass any appropriations bills. They are looking 
forward to a continuing resolution. That may be what it comes to. That 
will be the decision of the two leaders. At least, if

[[Page S8744]]

they do not want to complete any appropriations bills, let us finish 
homeland security. We will not dual-track anything else if we do not 
want it. We will stay off the appropriations bills at least until we 
finish homeland security. If we have to spend a half a day every day 
doing nothing, it is going to be extremely hard to finish homeland 
security.
  I spoke with the two managers of the bill yesterday. Both sides have 
amendments they want to offer. They are credible amendments. No one at 
this stage is trying to stall the bill. I think we would be well 
advised to do what the majority leader has indicated and vote to invoke 
cloture on this bill tomorrow. From the word I have received, that does 
not appear to be what the minority is going to let us do. Again, it 
requires 60 votes. We would take a simple majority vote on that. But 
that will not happen. Things do not work that way here. We require 60 
votes on matters of controversy.
  So unless my friend has more to say, I suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LIEBERMAN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Dayton). Without objection, it is so 
ordered.


    Amendments Nos. 4554, 4599, 4623, 4552, 4588, And 4563, En Bloc

  Mr. LIEBERMAN. Mr. President, I am pleased to report that Senator 
Thompson and I have been working with various other Members of the 
Senate, and we have reached agreement on a series of amendments that 
both sides have cleared.
  Before I make the actual motion, I will indicate what they are. The 
first is amendment No. 4554 on behalf of Senators Sarbanes, Mikulski, 
Warner, and Allen, which would create within the Department of Homeland 
Security an office for national capital region coordination which would 
provide a single Federal point of contact to help integrate the plans 
and preparedness activities of the Federal agencies and entities in the 
District of Columbia with the efforts of State, local, and regional 
authorities in the Greater Washington area.
  The second amendment is No. 4599 on behalf of Senators Harkin and 
Lugar. This amendment more effectively transfers the border inspection 
functions of the Animal and Plant Health Inspection Service to the new 
Department.
  Next is amendment No. 4623, which would, on behalf of Senator 
Thompson and myself, add the E-Government Act of 2002 to this 
legislation. This would give the Federal Government the tools and 
structure to reform its information technology systems, one of the 
greatest vulnerabilities of agencies now tasked with homeland security 
missions. This E-Government Act, I note for the record, was originally 
cosponsored by Senator Burns and many others. It is the result of 
months of productive negotiations with Senator Thompson and the 
administration.
  Next is amendment No. 4552 on behalf of Senators Clinton and Specter. 
This would require the Directorate of Critical Infrastructure 
Protection to assess the vulnerabilities of, identify priorities and 
support protective measures for and develop a comprehensive national 
plan to secure not only the critical infrastructure in the United 
States but also its key resources. This is an attempt to make clear 
that key resources include National Park sites identified by the 
Secretary of the Interior that are so universally recognized as symbols 
of the United States that they would likely or might possibly be 
identified as targets of terrorist attacks.
  Also, amendment No. 4588, on behalf of Senator Rockefeller, which 
consists of a series of technical changes to existing law to ensure 
that the Coast Guard members retain all of the benefits they are now 
entitled to under the Montgomery GI bill, once the Coast Guard is moved 
to the new Department.
  And finally, amendment No. 4563, on behalf of Senators Bayh, Shelby, 
and others, which would improve the protection of the Department of 
Defense storage depots for lethal chemical agents and munitions by 
strengthening temporary flight restrictions on the airspace near these 
depots.
  I, therefore, ask unanimous consent that it be in order to consider 
the following amendments: 4554, 4599, 4623, 4552, 4588, and 4563, and 
that Senator Thompson be added as a cosponsor of amendment No. 4623; 
that these amendments be considered and agreed to, and that the motions 
to reconsider be laid upon the table.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendments were agreed to, as follows:


                             amendment 4554

 (Purpose: To create an Office of National Capital Region Coordination 
              within the Department of Homeland Security)

       On page 114, between lines 20 and 21, insert the following:

     SEC. 141. OFFICE FOR NATIONAL CAPITAL REGION COORDINATION.

       (a) Establishment.--
       (1) In general.--There is established within the Office of 
     the Secretary the Office of National Capital Region 
     Coordination, to oversee and coordinate Federal programs for 
     and relationships with State, local, and regional authorities 
     in the National Capital Region, as defined under section 
     2674(f)(2) of title 10, United States Code.
       (2) Director.--The Office established under paragraph (1) 
     shall be headed by a Director, who shall be appointed by the 
     Secretary.
       (3) Cooperation.--The Secretary shall cooperate with the 
     Mayor of the District of Columbia, the Governors of Maryland 
     and Virginia, and other State, local, and regional officers 
     in the National Capital Region to integrate the District of 
     Columbia, Maryland, and Virginia into the planning, 
     coordination, and execution of the activities of the Federal 
     Government for the enhancement of domestic preparedness 
     against the consequences of terrorist attacks.
       (b) Responsibilities.--The Office established under 
     subsection (a)(1) shall--
       (1) coordinate the activities of the Department relating to 
     the National Capital Region, including cooperation with the 
     Homeland Security Liaison Officers for Maryland, Virginia, 
     and the District of Columbia within the Office for State and 
     Local Government Coordination;
       (2) assess, and advocate for, the resources needed by 
     State, local, and regional authorities in the National 
     Capital Region to implement efforts to secure the homeland;
       (3) provide State, local, and regional authorities in the 
     National Capital Region with regular information, research, 
     and technical support to assist the efforts of State, local, 
     and regional authorities in the National Capital Region in 
     securing the homeland;
       (4) develop a process for receiving meaningful input from 
     State, local, and regional authorities and the private sector 
     in the National Capital Region to assist in the development 
     of the homeland security plans and activities of the Federal 
     Government;
       (5) coordinate with Federal agencies in the National 
     Capital Region on terrorism preparedness, to ensure adequate 
     planning, information sharing, training, and execution of the 
     Federal role in domestic preparedness activities;
       (6) coordinate with Federal, State, local, and regional 
     agencies, and the private sector in the National Capital 
     Region on terrorism preparedness to ensure adequate planning, 
     information sharing, training, and execution of domestic 
     preparedness activities among these agencies and entities; 
     and
       (7) serve as a liaison between the Federal Government and 
     State, local, and regional authorities, and private sector 
     entities in the National Capital Region to facilitate access 
     to Federal grants and other programs.
       (c) Annual Report.--The Office established under subsection 
     (a) shall submit an annual report to Congress that includes--
       (1) the identification of the resources required to fully 
     implement homeland security efforts in the National Capital 
     Region;
       (2) an assessment of the progress made by the National 
     Capital Region in implementing homeland security efforts; and
       (3) recommendations to Congress regarding the additional 
     resources needed to fully implement homeland security efforts 
     in the National Capital Region.
       (d) Limitation.--Nothing contained in this section shall be 
     construed as limiting the power of State and local 
     governments.


                           Amendment No. 4599

  (The text of the amendment is printed in today's Record under ``Text 
of Amendments.'')


                           Amendment No. 4623

  (The text of the amendment is printed in today's Record under ``Text 
of Amendments.'')


                           Amendment No. 4552

(Purpose: To identify certain sites as key resources for protection by 
 the Directorate of Critical Infrastructure Protection, and for other 
                               purposes)

       On page 67, insert between lines 15 and 16 the following:
       In this subsection, the term ``key resources'' includes 
     National Park Service sites identified by the Secretary of 
     the Interior that are so universally recognized as symbols of 
     the United States and so heavily visited by the American and 
     international

[[Page S8745]]

     public that such sites would likely be identified as targets 
     of terrorist attacks, including the Statue of Liberty, 
     Independence Hall and the Liberty Bell, the Arch in St. 
     Louis, Missouri, Mt. Rushmore, and memorials and monuments in 
     Washington, D.C.


                           Amendment No. 4588

   (Purpose: To amend various laws administered by the Secretary of 
 Veterans Affairs to take into account the assumption by the Secretary 
        of Homeland Security of jurisdiction of the Coast Guard)

       At the end of subtitle D of title I, add the following:

     SEC. 173. CONFORMING AMENDMENTS REGARDING LAWS ADMINISTERED 
                   BY THE SECRETARY OF VETERANS AFFAIRS.

       (a) Title 38, United States Code.--
       (1) Secretary of homeland security as head of coast 
     guard.--Title 38, United States Code, is amended by striking 
     ``Secretary of Transportation'' and inserting ``Secretary of 
     Homeland Security'' in each of the following provisions:
       (A) Section 101(25)(D).
       (B) Section 1974(a)(5).
       (C) Section 3002(5).
       (D) Section 3011(a)(1)(A)(ii), both places it appears.
       (E) Section 3012(b)(1)(A)(v).
       (F) Section 3012(b)(1)(B)(ii)(V).
       (G) Section 3018A(a)(3).
       (H) Section 3018B(a)(1)(C).
       (I) Section 3018B(a)(2)(C).
       (J) Section 3018C(a)(5).
       (K) Section 3020(m)(4).
       (L) Section 3035(d).
       (M) Section 6105(c).
       (2) Department of homeland security as executive department 
     of coast guard.--Title 38, United States Code, is amended by 
     striking ``Department of Transportation'' and inserting 
     ``Department of Homeland Security'' in each of the following 
     provisions:
       (A) Section 1560(a).
       (B) Section 3035(b)(2).
       (C) Section 3035(c).
       (D) Section 3035(d).
       (E) Section 3035(e)(1)(C).
       (F) Section 3680A(g).
       (b) Soldiers' and Sailors' Civil Relief Act of 1940.--The 
     Soldiers' and Sailors' Civil Relief Act of 1940 is amended by 
     striking ``Secretary of Transportation'' and inserting 
     ``Secretary of Homeland Security'' in each of the following 
     provisions:
       (1) Section 105 (50 U.S.C. App. 515), both places it 
     appears.
       (2) Section 300(c) (50 U.S.C. App. 530).
       (c) Other Laws and Documents.--(1) Any reference to the 
     Secretary of Transportation, in that Secretary's capacity as 
     the head of the Coast Guard when it is not operating as a 
     service in the Navy, in any law, regulation, map, document, 
     record, or other paper of the United States administered by 
     the Secretary of Veterans Affairs shall be considered to be a 
     reference to the Secretary of Homeland Security.
       (2) Any reference to the Department of Transportation, in 
     its capacity as the executive department of the Coast Guard 
     when it is not operating as a service in the Navy, in any 
     law, regulation, map, document, record, or other paper of the 
     United States administered by the Secretary of Veterans 
     Affairs shall be considered to be a reference to the 
     Department of Homeland Security.


                           amendment no. 4563

 (Purpose: To improve the protection of Department of Defense storage 
 depots for lethal chemical agents and munitions through strengthened 
                     temporary flight restrictions)

       On page 211, between lines 9 and 10, insert the following:

TITLE VI--STRENGTHENED TEMPORARY FLIGHT RESTRICTIONS FOR THE PROTECTION 
                   OF CHEMICAL WEAPONS STORAGE DEPOTS

     SEC. 601. ENFORCEMENT OF TEMPORARY FLIGHT RESTRICTIONS.

       (a) Improved Enforcement.--The Secretary of Defense shall 
     request the Administrator of the Federal Aviation 
     Administration to enforce temporary flight restrictions 
     applicable to Department of Defense depots for the storage of 
     lethal chemical agents and munitions.
       (b) Assessment of Use of Combat Air Patrols and 
     Exercises.--The Secretary shall assess the effectiveness, in 
     terms of deterrence and capabilities for timely response, of 
     current requirements for carrying out combat air patrols and 
     flight training exercises involving combat aircraft over the 
     depots referred to in such subsection.

     SEC. 602. REPORTS ON UNAUTHORIZED INCURSIONS INTO RESTRICTED 
                   AIRSPACE.

       (a) Requirement for Report.--The Administrator of the 
     Federal Aviation Administration shall submit to Congress a 
     report on each incursion of an aircraft into airspace in the 
     vicinity of Department of Defense depots for the storage of 
     lethal chemical agents and munitions in violation of 
     temporary flight restrictions applicable to that airspace. 
     The report shall include a discussion of the actions, if any, 
     that the Administrator has taken or is taking in response to 
     or as a result of the incursion.
       (b) Time for Report.--The report required under subsection 
     (a) regarding an incursion described in such subsection shall 
     be submitted not later than 30 days after the occurrence of 
     the incursion.

     SEC. 603. REVIEW AND REVISION OF TEMPORARY FLIGHT 
                   RESTRICTIONS.

       (a) Requirement To Review and Revise.--The Secretary of 
     Defense shall--
       (1) review the temporary flight restrictions that are 
     applicable to airspace in the vicinity of Department of 
     Defense depots for the storage of lethal chemical agents and 
     munitions, including altitude and radius restrictions; and
       (2) request the Administrator of the Federal Aviation 
     Administration to revise the restrictions, in coordination 
     with the Secretary, to ensure that the restrictions are 
     sufficient to provide an opportunity for--
       (A) timely detection of incursions of aircraft into such 
     airspace; and
       (B) timely response to protect such agents and munitions 
     effectively from threats associated with the incursions.
       (b) Report.--Not later than 120 days after the date of the 
     enactment of this Act, the Secretary shall submit to Congress 
     a report on the actions taken under subsection (a). The 
     report shall contain the following:
       (1) The matters considered in the review required under 
     that subsection.
       (2) The revisions of temporary flight restrictions that 
     have been made or requested as a result of the review, 
     together with a discussion of how those revisions ensure the 
     attainment of the objectives specified in paragraph (2) of 
     such subsection.


                           amendment no. 4623

  Mr. LIEBERMAN. Mr. President, I would like to make some additional 
comments regarding the inclusion of amendment number 4623 in this 
legislation.
  The E-Government Act of 2002 is vitally needed to enhance our 
homeland security, and is directly relevant to the goal of ensuring 
improved homeland security. The bipartisan bill, originally cosponsored 
by Senator Burns, is the result of months of productive negotiations 
with Senator Thompson and the administration. It passed the Senate as 
S. 803 by unanimous consent in June. The Committee on Governmental 
Affairs produced an extensive report, Report No. 107-174, to which I 
refer my colleagues for more information about the bill.
  The E-Government Act will give the Federal Government the tools and 
structure to transform its IT systems, one of the greatest 
vulnerabilities of agencies now tasked with homeland security missions. 
As we've seen through dozens of depressing revelations over the last 
year, we have a desperate need for more effective and systematic 
information sharing between agencies like the FBI, CIA, Department of 
State, the INS, and state and local authorities. The E-Government Act 
will help the federal government get that job done, by establishing 
more effective IT management, establishing mandates for action, and 
authorizing funding.
  The bill will also substantially enhance the ability of the Federal 
Government to quickly provide information and services to citizens to 
help them prepare for, and respond to, terrorism, natural disasters, 
and other homeland threats. In the hours and days after the terrorist 
attacks of September 11, Americans flooded Government's websites in 
record numbers, seeking information more targeted than what the media 
was providing: what was happening; how they should respond to protect 
themselves from possible future attacks; how they could help victims; 
and how people who were victims themselves could seek assistance. The 
E-Government Act will substantially enhance the ability of the Federal 
Government to quickly provide information and services to citizens to 
help them prepare for, and respond to, terrorism, natural disasters, 
and other homeland threats.
  Finally, the bill will make permanent the Thompson-Lieberman 
Government Information Security Reform Act, which is about to expire. 
Weak computer security has been a widespread problem in the Federal 
Government, with potentially devastating consequences. In response, the 
Senate passed this important information security legislation last 
Congress, but that legislation is scheduled to expire in November.
  I thank the Chair, Senator Thompson, staff, and all others who have 
cooperated to allow us to move forward with these amendments. Noting my 
friend and colleague on the floor whom we all welcome back to 
Washington after some surgery, he looks younger and more knowledgeable 
than ever, I yield the floor.
  The PRESIDING OFFICER. The Senator from Hawaii.
  Mr. AKAKA. Mr. President, I rise to commend my chairman, Senator 
Lieberman, for his outstanding work and his extraordinary leadership in 
the

[[Page S8746]]

committee, and to mention that it was after Senator Lieberman began his 
initiative to create such a Department that it began to pick up, not 
only in the Senate but with the administration, too. He has crafted, I 
believe, a strong piece of legislation for the Department of Homeland 
Security.
  This evening I rise to express my strong support for Senator 
Lieberman's substitute. I have strong respect for the senior Senator 
from West Virginia but I will vote against his amendment. Senator 
Lieberman has done a great service to his country by holding hearings 
and debating extensively the structure of a Department of Homeland 
Security. Without his determined effort, the President might never have 
conceded the need for such a department. As Senator Thompson has noted, 
the Governmental Affairs Committee debated in great deal the structure 
of such a department. Numerous changes were made to the President's 
proposal which have substantially improved it.
  I rise to discuss the flexibilities available at the Federal Aviation 
Administration and the Internal Revenue Service. My colleagues have 
criticized the legislation before us for not providing the same 
flexibilities available to the FAA and the IRS. The most important 
factor in the personnel systems at these two agencies is the 
involvement of federal employee unions.
  In April 1996, at Congressional direction, FAA was allowed to develop 
its own personnel and compensation systems, to give the agency more 
flexibility because of its daily interaction with the fast-paced and 
rapidly-growing aviation industry. The Secretary of Transportation 
argued strongly that the agency needed flexibility to pay people what 
the job required and to move them where the work was needed, without 
the restrictions of standard government personnel procedures.
  While the FAA was given wide authority to develop their personnel 
system, the FAA still must negotiate with its federal employee unions 
in developing and making changes to the personnel management system. 
The FAA system contains provisions protecting a large portion of the 
rights of federal workers. These include whistleblower protections, 
including the provisions for investigation and enforcement; veterans' 
preference; anti-discrimination; compensation for work injury; 
retirement, unemployment compensation, and insurance coverage; and 
review of employee matters by the Merit Systems Protection Board.
  In addition, employees subject to major adverse personnel actions may 
contest the action through any contractual grievance procedure.
  And because the FAA is not subject to federal pay rate regulations, 
the federal employee unions are allowed to bargain over wages at the 
FAA as they do in the private sector.
  Such bargaining rights are not provided in the President's original 
Homeland Security bill or the House passed bill. In fact, both bills 
would allow even current collective bargaining rights to be waived.
  Despite this praise of FAA flexibility, just last year, the 
Republican-led House Appropriations Committee concluded that FAA's 
personnel reform has been a failure. At that time, the most recent FAA 
employee attitude survey showed severe levels of employee 
dissatisfaction, even as compensation levels rose to make DOT the 
highest-paid cabinet level agency in the Federal Government.
  Fewer than one in ten employees felt that personnel reform had been 
successful at eliminating bureaucracy or helping accomplish FAA's 
mission. Fewer than one in five felt the agency rewards creativity and 
innovation--even though personnel reform allows the agency great 
flexibility in this area.
  A review of staffing at air traffic control facilities indicates that 
reform has not been used to place employees where they are needed. 
These findings were supported by an independent study conducted by the 
National Academy of Public Administration, which found that FAA hasn't 
met many of the key goals of personnel reform.
  In addition, the House Committee believed that Congress should 
carefully review the effects of personnel reform leading up to 
reauthorization of AIR 21 in fiscal year 2004 to gauge whether the 
experiment should be continued.
  According to the GAO, the decentralized personnel structure that 
resulted from FAA's reform has caused moral problems, communication 
gaps and inconsistencies in technical advice and leadership within FAA 
organizations, and insufficient understanding throughout the workforce 
about the intent of reforms. As a result of these problems, FAA lacks a 
broad base of support and accountability for reform initiatives among 
employees below the highest management levels.
  More recently, TSA, which uses the FAA's pay banding system, has 
caused great concern with the high salaries given to federal law 
enforcement officers that are higher than those currently earned at 
other federal agencies. Such a system has contributed to the loss of 
law enforcement officers at the Capitol Police, the U.S. Park Police 
and the U.S. Secret Service.
  The IRS was granted additional flexibilities to address its unique 
workforce as well. The IRS personnel flexibilities include: critical 
pay authority; enhanced recruitment, retention, and relocation 
authority; enhanced authority for performance awards to senior 
executives; and exceptions to Title 5 rules in filling Senior Executive 
Service positions which are reserved for career employees.
  Additional flexibilities are granted to the IRS which can only be 
applied to union represented employees subject to a written agreement 
between the union and the IRS. This includes streamlined demonstration 
project authority; variations to the performance appraisal and awards 
sections of Title 5; variations from Title 5 pay and classification 
systems for pay banding; and variations from Title 5 hiring rules.
  However, the IRS' progress on reform seems welcome to all but those 
who work inside the agency. In response to the agency's 2001 employee 
climate survey, 42 percent of employees said the organizational changes 
have had a negative effect on them, compared with 24 percent who 
reported positive effects and 34 percent who reported no effect. Such 
dissatisfaction does nothing to help retain employees when the federal 
government is facing a human capital crisis.
  While there has been an increase in customer satisfaction with the 
IRS, the widespread personnel reshuffling has yet to guarantee that the 
IRS is matching its workforce to its workload appropriately. Over the 
past four years, the backlog of taxpayer requests for compromise 
settlements with the IRS on the amount of back taxes they owe tripled, 
even though the staff devoted to the backlog has doubled. A General 
Accounting Office review found that putting staff on the compromise 
program may be hurting other collection programs. The large percentage 
of bad information given to taxpayers by IRS employees also shows that 
the right people with the right skills are not in place in customer 
service jobs--though the IRS is retraining customer service 
representatives to improve accuracy.
  As we are debating the creation of a new Department of Homeland 
Security, we must make sure that providing new flexibilities does not 
compromise the mission of the agency. In providing the agency with the 
tools to effectively manage their workforce, we must make sure that 
agencies have a strategy in place to meet their missions and keep 
employees satisfied. If our dedicated workers do not feel valuable to 
the agency, the mission will fail. Without sufficient union 
participation and civil service protections, our homeland will not be 
secure.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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