[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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