[Congressional Record Volume 148, Number 121 (Monday, September 23, 2002)]
[Senate]
[Pages S9050-S9053]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          SPECIAL COMMISSIONS

  Mr. LOTT. Mr. President, let me begin tonight with a quote from 
Federalist Paper No. 37, January 11, 1789, by James Madison.

       It is misfortune, inseparable from human affairs, that 
     public measures are rarely investigated with that spirit of 
     moderation which is essential to a just estimate of their 
     real tendency to advance or obstruct the public good.

  James Madison believed then it would always be very hard to 
investigate events and do it in such a way, in moderation and without 
partisanship, that the public would be able to find out what really 
happened and then determine what should be done in the future to keep 
it from happening again--to advance the good or obstruct the bad.
  Another quote goes from an anonymous source goes something along the 
lines of: If God had created a commission to establish Heaven and 
Earth, we wouldn't be here today.
  Mr. President, my own experiences with commissions over 30 years in 
Congress have not been good. I view Congressional commissions as an 
abdication of responsibility. What are we for? Why do we have an Armed 
Services Committee, an Intelligence Committee, a Governmental Affairs 
Committee, or a Foreign Affairs Committee?
  It seems to me that we in Congress should do the work of reviewing 
the laws and overseeing the agencies and the various departments. Are 
they serving the public the right way? In a responsible way? Or is 
there an abdication of responsibility and duty by the various 
administrations in charge of running our government?
  One of the reasons I have never supported BRAC, the various base 
closure commissions, is that when we create those commissions we are 
basically saying: We do not have the courage to do it; do not let us 
know what is going on; shove it off on a commission and let them do it.
  But in the past closing excess bases had always been handled without 
a commission after every previous war. However, about 20 or 25 years 
ago Congress started to say: No, we cannot do that, we will not do it.
  In the past after previous wars how was the military scaled down? 
Pentagon officials and other administration officials--after World War 
I, after World War II, after the Korean war--would send recommendations 
to the Congress regarding excess capacity and bases they felt were no 
longer needed. And unless Congress blocked it, the bases were closed. I 
bet every State in the Nation still has bases left over from World War 
II. In my own State, we had bases in Hattiesburg, in Greenville, MS, 
and Greenwood, MS. Some of the finest airport runways in our State are 
the very sturdy concrete runways that were built during World War II 
for air training facilities.
  Congress simply acted and then the administration acted. Then 
powerful members of Congress started saying: No, you cannot close my 
base; close someone else's base. That is what ultimately led to the 
creation of commissions.
  I have no doubt about the integrity and the good intentions of 
Senator Lieberman and Senator McCain with their proposal to create an 
independent commission to investigate September 11, 2001. How did that 
attacks happen, where were the failures, and how can we avoid repeating 
them. I know these two men. They are men of good faith that feel so 
strongly about our country they want this to be a positive thing. They 
envision some commission of grand pooh-bahs and gray eminences that 
will assemble and give us the benefit of their great wisdom, men and 
women who have been in the Government, been in the intelligence 
community, been in Congress, and thus could do the country a great 
service.

  Mr. President, the track record of that happening is unfortunately 
very poor. As with all commissions, there are fundamental problems with 
this commission. Of course, we are now in the second iteration of how 
this commission would be set up and I presume there will be a third and 
a fourth. I presume the House will have yet a different version after 
they go through their iterations of a commission. And then the 
Administration has concerns that will have to be addressed as well.

[[Page S9051]]

  Let me point out where a few of the problems with this particular 
commission are. Initially, the first draft of the Lieberman-McCain 
proposal would have had 14 Members, 5 appointed by the Democrat leaders 
in Congress, 5 by the Republican leaders in Congress and 4 by the 
President with the President naming the chairman.
  Then someone figured out, wait a minute; that means there would be 
nine Republicans and five Democrats. That doesn't look bipartisan 
enough. So they said we cannot do that.
  Now what is actually in the legislation as proposed is that five 
people would be appointed by the Democratic leadership and five by 
Republicans. Senator Daschle appoints three; I would appoint two; the 
Speaker would appoint three; and Congressman Gephardt, two--for a total 
of 10 members. However, there are no Presidentially appointed members, 
and no process for selecting a chairman. The bill just says there will 
be a chairman and a vice chairman of opposite parties. So, wonderful, 
how are the Chairman and Vice Chairmen going to be chosen. By Heaven?
  If the commission were constituted that way they would be meeting 3 
months just to pick their chairman. Which Member is going to break 
ranks and vote with the other five? I know the presumption is that 
these will be men and women of such eminence and prominence that they 
would meet, all 10 of them, and quickly decide on a chairman and a vice 
chairman and they would move along swiftly.
  It ``ain't'' going to happen. I have had direct personal experience 
with a few commissions over the past 10 years, particularly when I was 
majority leader. I was involved in setting up a gaming commission to 
look at gaming in America, the effects of gaming, Internet and Indian 
gaming and the problems associated with gambling. I don't know how much 
money they spent for that commission. And good men and women were on 
that commission--men, women, minorities, and Native Americans 
representing all the various viewpoints. It was well constituted and 
the people who appointed the members did an exceptionally good job.
  The commission members met, they acted seriously, they went all over 
the country, they thought about it, and they filed a report, and closed 
up their commission. I bet not one U.S. Senator ever read the report, 
ever. And I am embarrassed to say I read an outline and kind of glanced 
over it. I was not an advocate of the gaming commission, but I went 
along with it at the request of, among others, my great friend from 
Indiana, Dan Coats. Good work. Good intentions, Mr. President. Nothing 
came of it.
  Even more recently, we had the Breaux Commission on Medicare. That 
was an interesting one, too. I think it was set up correctly number-
wise, with good people: Jay Rockefeller from the Finance Committee; Bob 
Kerrey, a very innovative thinker on Medicare; Dr. Bill Fritz was 
appointed on our side; Senator Phil Gramm, certainly one of the most 
knowledgeable Senators in this area who is also on the Finance 
Committee. Even former Finance Committee Chairman Pat Moynihan was on 
it.

  We also had people from the real world on the commission. I know a 
woman on the commission who was over 70 with silver hair--I will not 
mention her name because I cannot connect it to her age. She dealt with 
Medicare on a daily basis. She benefitted from Medicare. She knew what 
she was talking about. We had all these people who knew what Medicare 
was suppose to do for the nation's seniors, in theory. It was a great 
commission.
  John Breaux was the chairman. I might note that it was interesting 
how John got to be chairman. I remember specifically talking to 
President Clinton about somebody both sides could accept. We settled on 
John and he took it and did a good job. The commission met and their 
meetings were on C-SPAN. They did a lot of thoughtful work, they had 
good debate, and they made excellent recommendations. They issued a 
commission report detailing their great recommendations.
  What happened to their report Mr. President? Nothing. None of their 
recommendations have been implemented or acted on. And, by the way, 
they called for providing a prescription drug benefit. They had a plan 
to do it without bankrupting the entire Medicare system. It was the 
Breaux proposal and then the Breaux-Frist proposal. It was a tremendous 
effort. But nothing ever came of it.
  So the track record on Commissions is not good. I don't want this to 
be a commission that is not set up right, that spends millions of 
dollars for nothing. I am told it is just $3 million, but I bet it 
winds up being closer to $12 million or more and that does not count 
the cost of the assistance that the other parts of the federal 
government are required to give it under the proposed bill. The 
commission will also stretch out over 18 months. When its report is 
ultimately filed, it will garner headlines and discussion on the 
weekend talk show for a week or two, but then it will be forgotten and 
not much will come of it.
  Mr. President, I sincerely hope that if we do create the commission 
that I am wrong. But I don't think the prospects or the track record 
look very good.
  Now, again, as I have said, the actual language of the amendment 
concerns me in many respects. For instance, it says that one of the 
purposes of the commission would be:

       . . . to ascertain, evaluate, and report on the evidence 
     developed by all relevant governmental agencies regarding the 
     facts and circumstances surrounding the attacks.

  However, there is no provision in this bill as to how the commission 
will have to deal with the evidence they are given by the Department of 
Justice, U.S. Attorneys, Federal courts, and others in order to 
safeguard it. Would the public, and our enemies, be able to get this 
information through the Freedom Of Information Act or not? I suppose 
this issue can be addressed, but it is not clear in the bill as written 
and it needs to be.
  Mr. President, the commission is also given almost total access to 
the nation's classified information, yet again there is nothing in the 
proposal that requires or directs the commission to safeguard it. The 
Senate and House Intelligence Committees have strict rules and 
elaborate procedures--as does the CIA, DOD, the National Security 
Agency and other entities entrusted with the nation's top secret 
information for protecting such information. Yet, there is there is no 
explicit requirement in this bill for this commission to protect our 
national secrets.
  But again, that is why I like the joint House-Senate Intelligence 
Committee's efforts--it is equally divided among the parties, they have 
experience dealing with classified information, and they have settled 
procedures for handling such information.
  Astoundingly, it appears that most of this new commission's 
proceedings would have to be public since they would be subject to the 
Federal Advisory Committee Act and that it materials available to the 
public under the Freedom of Information Act despite that fact that the 
Commission would be dealing with some of our most important and best 
kept secrets.
  I also have concerns about the procedures for using and the extent of 
the subpoena authority granted the commission under this amendment. It 
appears that once elected, the Chairman, Vice Chairman, or even the 
Chairman of a Subcommittee created by the Commission, can issue any and 
all subpoenas he or she desires without having to go back to the rest 
of the Commission for permission, approval, or even a vote on the 
wisdom or propriety of their subpoena. We do not generally grant such 
unilateral subpoena authority to Chairman and Ranking members in 
Congress.
  Mr. President, I have been opposed to this commission thus far. 
First, of course, as I have said, because I oppose commissions almost 
universally because I do not think they produce good results and 
because that is what we in Congress are for. But second--and one of the 
things I have been thinking about--is because we have already had the 
joint intelligence committee, House and Senate, looking into this 
matter. Those members have been working through these issues. They are 
still working on it. They have not yet completed their work. We have 
not received a final report. We are getting a few preliminary staff 
reports. Nevertheless, it seems we are going to go ahead and have this 
vote before we even get to see what the final results of Congress' own 
inquiry are.

[[Page S9052]]

  By the way, I do wish the Joint Committee would do their work and 
tell Congress what we need to do to protect Americans from terrorism in 
the future. If we need to change even more about how our intelligence 
community operates, let's do it. I think we can do it in a bipartisan 
way.

  Mr. President, I note that the amendment as proposed also states that 
the commission will:

       . . . make a full and complete accounting of the 
     circumstances surrounding the attacks, and the extent of the 
     United States' preparedness for, and response to, the attacks 
     . . . [and] investigate and report to the President and 
     Congress on its findings, conclusions, and recommendations 
     for corrective measures that can be taken to prevent acts of 
     terrorism.

  I wonder if the sponsors are aware that, since 1995, the Government 
has produced reams of materials regarding counter-terrorism, 
intelligence activities, and aviation security. Since 1995, seven 
commissions have dealt in this area and issued 10 separate reports 
prior to 9/11.
  One of the past commissions was the so-called Gilmore Commission. Its 
official name was the ``U.S. Advisory Panel to Assess Domestic Response 
Capabilities for Terrorism Involving Weapons of Mass Destruction.'' The 
Gilmore Commission submitted three reports to the President and 
Congress. The first one submitted in 1999 was titled ``Assessing the 
Threat.'' The second submitted in 2000 was titled, ``Toward a National 
Strategy for Combating Terrorism.'' The final report submitted just 
before the 9/11 attacks was titled ``For Ray Downey.''
  The panel consisted of government officials and infrastructure 
specialists who examined domestic and international threats to the 
homeland, and made many recommendations for increased security and 
better coordination between federal and state agencies in combating 
terrorism.
  Then there was the Hart-Rudman Commission led by two very respected 
Senators. Its official title was the ``U.S. Commission on National 
Security in the 21st Century'' and it ultimately issued reports and 
specific recommendations in 1999, 2000, 2001.
  The reports were titled ``New World Coming: Major Themes and 
Implications'' (1999); ``Seeking a National Strategy'' (2000); and 
``Road Map for National Security: Imperative for Change'' (2001). The 
commission, which was chartered by then Secretary of Defense William 
Cohen, had a broad mandate to study ``the anticipated security 
environment in the early 21st Century.'' Its recommendations in three 
reports call for a counter-terrorism policy focus on deterrence and 
domestic preparedness capabilities. Most significantly, the Commission 
recommended establishing a Homeland Security Agency while noting the 
need for more human intelligence.
  Then there was the ``IC21: The Intelligence Community In The 21st 
Century'' Report. This was done by the House Permanent Select Committee 
on Intelligence which published the report in 1996. The goal was to 
``define the type of intelligence community which would best meet the 
U.S. national security needs into the next century.''
  There was the so-called Bremer Commission created by Public Law 105-
277 and officially titled the ``U.S. National Commission on Terrorism 
and National Security in the 21st Century.'' The Bremer Commission 
released its report in 2000 and recommended a more aggressive domestic 
and foreign policy in combating terrorism.
  Then there was the Aspin-Brown Commission, led by two more well 
respected gray eminences of the kind we are talking about--former 
Congressman Aspin and former Secretary of Defense Harold Brown. The 
Commission was created by Public Law 103-539 and charged with 
``Preparing for the 21st Century and Appraisal of U.S. Intelligence.''
  They made three findings in 1996: That the United States needed to 
better integrate intelligence into the policy community, needed for 
intelligence agencies to operate as a community, and needed to create 
greater efficiency and bring more rigor and modern management practices 
to the system. This was in 1996.
  A really important commission was the ``U.S. White House Commission 
On Aviation Safety and Security,'' which issued a report from its 
Chairman--Vice President Gore to President Clinton in 1997. It was a 
good report. It also had specific recommendations about how to improve 
aviation security. What happened to it? Nothing was acted on. Congress 
didn't act on it. Good work was done. This commission was tasked with 
developing ``a strategy to improve aviation safety and security, both 
domestically and internationally.''
  Let's look at a few of the recommendations this report made in 1997--
over four years before the 9/11 attacks took place. The very first 
paragraph in the report's 3rd Chapter--titled ``Improving Security for 
Travelers''--said the following:

       The Federal Bureau of Investigation, the Central 
     Intelligence Agency, and other intelligence sources have been 
     warning that the threat of terrorism is changing in two 
     important ways. First, it is no longer just an overseas 
     threat from foreign terrorists. People and places in the 
     United States have joined the list of targets, and Americans 
     have joined the ranks of terrorists. The bombings of the 
     World Trade Center in New York and the Federal Building in 
     Oklahoma City are clear examples of the shift, as is the 
     conviction of Ramzi Yousef for attempting to bomb twelve 
     American airliners out of the sky over the Pacific Ocean. The 
     second change is that in addition to well-known, established 
     terrorist groups, it is becoming more common to find 
     terrorists working alone or in ad-hoc groups, some of whom 
     are not afraid to die in carrying out their designs.

  Mr. President, that one chapter went on to make 31 recommendations 
for improving aviation security. Some of those recommendations given 
over four years before 9/11 tragedy were as follows:

       Recommendation 3.7--The FAA should work with airlines and 
     airport consortia to ensure that all passengers are 
     positively identified and subjected to security procedures 
     before they board aircraft.
       Recommendation 3.9--Assess the possible use of chemical and 
     biological weapons as tools of terrorism.
       Recommendation 3.10--The FAA should work with industry to 
     develop a national program to increase the professionalism of 
     the aviation security workforce, including screening 
     personnel.
       Recommendation 3.11--Access to airport controlled areas 
     must be secured and the physical security of aircraft must be 
     ensured.
       Recommendation 3.14--Require criminal background checks and 
     FBI fingerprints for all screeners, and all airport and 
     airline employees with access to secure areas.
       Recommendation 3.17--Establish an interagency task force to 
     assess the potential use of surface-to-air missiles against 
     commercial aircraft.
       Recommendation 3.19--Complement technology with automated 
     passenger profiling.
       Recommendation 3.20--Certify screening companies and 
     improve screener performance.
       Recommendation 3.21--Aggressively test existing security 
     systems.
       Recommendation 3.23--Give properly cleared airline and 
     airport security personnel access to the classified 
     information they need to know.
       Recommendation 3.24--Begin implementation of full bag-
     passenger match.
       Recommendation 3.26--Improve passenger manifests.
       Recommendation 3.27--Significantly increase the number of 
     FBI agents assigned to counter-terrorism investigations, to 
     improve intelligence and to crisis response.

  Mr. President, all of this information is in the public record. It is 
there. Why don't we make use of it?
  The list goes on. There were over 90 GAO reports before 9/11 and now 
there are over 50 GAO reports on Aviation and National Security and 
Terrorism since 9/11. There was a 1999 report titled ``The FBI 30-year 
Retrospective Special Report on Counter-terrorism'' that was put out by 
the FBI's Counter-Terrorism Division and which detailed 30 years of 
terrorism. It was done after terrorists were caught in 1999 trying to 
smuggle bomb-making materials into Jordan, and into the US from Canada 
in Washington State to disrupt celebrations of the Millennium.
  That report gave the American public the following assurances in 
1999:

       In November 1999, the FBI restructured its National 
     Security Division to create, for the first time, a division-
     level component dedicated specifically to combating 
     terrorism.
       In 1999 the FBI established the Counterterrorism and the 
     Investigative Services divisions to further enhance the 
     operational and analytic focus on the full range of 
     activities in which violent extremists engage.


[[Page S9053]]


  The FBI's 30-year retrospective report concluded with the following--
as it turned out false--assurance in 1999:

       While the threat is formidable, the U.S. intelligence and 
     law enforcement community have developed an effective and 
     highly integrated response to the [counter-terrorism threat.] 
     . . . Increasingly, the FBI's efforts involve the assistance 
     and cooperation of other intelligence and law enforcement 
     agencies. The threats of the new Millennium require such an 
     integrated and aggressive response.
  Mr. President, do you see my point? Good work has been done by good 
men and women, experts in this field, reports on what we need to do in 
order to do a better job--in 1996, 1997, 1998 and 1999 and 2000 and 
2001. All this good work by the commissions, the GAO, the FBI, and 
others has not resulted in us doing anything about it.
  Now we are going to have one more commission report. These are the 
commission reports on my desk that have been done already since 1995--a 
pretty good stack. It is very interesting reading.
  The GAO report here, just on the top, ``Combating Terrorism, FBI'S 
Use of Federal Funds for Counter-terrorism and Related Activities''--
there is just simply a plethora of counter-terrorism reports available 
making thousands of recommendations. These reports did not look at the 
specific events that led up to 9/11 and what happened and what we have 
learned from that, but they did look at what we should have been doing 
to prevent it.
  I think, unfortunately, this commission amendment is probably going 
to be agreed to, but I wanted to raise my concerns about the way the 
commission amendment is drafted, the way the commission would be 
created, the cost that would be involved, and the likelihood that at 
the end of the day its findings will meet the fate of those from so 
many commissions before it.
  As to money, I am sure they are starting off way low. They will be 
back asking for an increase in money within 3 to 6 months. I have 
already experienced that, too. In fact, one of the commissions I 
referred to earlier came back wanting more money, they wanted a little 
bit more, they came back yet a second time but I said: No. Wrap it up.
  So I just do not think this is a wise thing to do. I think we ought 
to do it, or I think the administration ought to do it, but somebody 
needs to grab hold of this and do it the right way. Maybe the joint 
intelligence committee can still give us what we need in order to 
decide if we need more laws or if we need more reform within the 
intelligence community. But this commission is not going to bring us a 
lot more. It may get a few big headlines. It is going to cost a lot 
more money. Yet, I doubt if much will come out of it.
  By the way, probably the earliest we will get anything out of it 
specifically would be 18 months from now. Goodness gracious, if we need 
to take action on what we have learned and what we know, are we going 
to wait for 18 months to see this commission report before we act? By 
the time this commission acts, I fervently hope that Congress will 
already have done everything that needs to be done as a result of the 
events of 9/11.
  I thank the Chair for showing patience, and the staff here. I do not 
want to keep them too long. But I was afraid I would not get an 
opportunity to raise these questions tomorrow before we go to the vote. 
Maybe there will be a stampede to just get this done, but, boy, we are 
going to need to do a lot of work before we enact it into law.
  I believe we are ready to complete our work for the day. I yield the 
floor.

                          ____________________