[Congressional Record Volume 148, Number 124 (Thursday, September 26, 2002)]
[Senate]
[Pages S9371-S9399]
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 Senate will now 
resume consideration of H.R. 5005, which the clerk will report.
  The 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.
       Gramm/Miller amendment No. 4738 (to amendment No. 4471), of 
     a perfecting nature, to prevent terrorist attacks within the 
     United States.
       Nelson (NE.) amendment No. 4740 (to amendment No. 4738), to 
     modify certain personnel provisions.

  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, I ask unanimous consent that at 3:45 p.m. 
today the motion to proceed to the motion to reconsider be agreed to, 
the motion to reconsider be agreed to, and without further intervening 
action or debate, the Senate proceed to vote on a motion to invoke 
cloture on the Lieberman substitute amendment, for H.R. 5005, the 
Homeland Security legislation.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, we are in a parliamentary posture where we 
will have a vote tomorrow at such time as may be determined, either 
that or an hour after we come in. The majority leader has said 
privately and has authorized me to say publicly that we would be 
willing to have that vote today, the reason being, of course, we have 
been told by the minority that we are not going to get cloture. It is 
hard to comprehend that, but that is what they said. It would seem to 
me it would be in everyone's best interest to see if that, in fact, is 
the case today, if, in fact, we did get cloture, and the 30 hours could 
run and it would not interfere with the duties of the other Senators, 
except those who wish to speak. Postcloture, a Senator has up to 1 
hour.
  There are lots of things going on at home. This is election time, as 
we know. It appears to me, as I said earlier today, we have had so many 
code words. This is a filibuster. We were told yesterday there were 30 
speakers on this amendment. Realistically, what amendment ever had 30 
speakers? There won't be 30 speakers on this amendment, but there will 
be a lot of people moving around, stalling for time, which has happened 
now for 4 weeks on this bill.
  I said yesterday, and I am beginning to believe more all the time, 
and it appears clear to me, that there does not seem to be any 
intention of either the White House or the Republican majority in the 
House or the minority in the Senate, of wanting to move this bill 
forward.
  There is general agreement that the bill the Senators from 
Connecticut and Tennessee came up with is a bill we should have passed 
very quickly. There are problems that could have been resolved in the 
House and the Senate conference. For every day we spend talking about 
Iraq--and I think we should spend some time every day talking about 
Iraq and homeland security--it is 1 day we do not have to deal with the 
stumbling, staggering, faltering economy.
  If we spend each day on issues focusing away from the economy and 
what needs to be done in the Senate, including doing something about 
terrorism insurance, doing something about a Patients' Bill of Rights, 
which the Presiding Officer worked very hard on--we need to do 
something on a generic drug bill. There was the fiasco that took place 
in Florida. Again, 2 years after the fiasco of all time with the 
elections, still nothing can be done because the House will not let us 
do anything. The energy conference is moving forward by tiny steps, but 
it is one of the few things happening.
  It is obvious to me there is an effort to do everything that can be 
done so we do not focus on the economy. It is too bad. We can either 
formally come in later and offer the vote on the cloture motion set for 
tomorrow or do it today. But the offer is there.
  For all the Senators worried about what is going to happen tomorrow, 
they should understand--and I understand there are some on the other 
side who do not even care if they are here or not because they really 
do not need them on a vote because we have to try to get 60 votes. But 
that is OK; we will still do everything we can. On this side we are 
going to move forward on this bill. We will, as the leader indicated, 
work weekends, we will work nights, whatever it takes, to try to move 
forward on this bill. I am disappointed we are being told there will 
not be cloture on this until tomorrow.
  That is, I repeat, only an effort to stall moving forward on this 
legislation.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. GRAMM. Mr. President, I will respond to the distinguished 
Democratic floor leader by simply going back and reviewing the facts 
and setting out the obvious blueprint that will solve our problems. I 
remind my colleagues we have been on this bill for over 4 weeks largely 
because of the debate on the Byrd amendment, and not a minute of that 
time was wasted because we were convinced by the major premise of the 
Byrd amendment. In the Gramm-Miller substitute we deal with that 
problem by maintaining the power of the purse, which is the fundamental 
constitutional power of the Congress.
  I am not complaining about the fact that we have spent the bulk of 
our time on an amendment that is still pending because the plain truth 
is we learned something ``we'' being Senator Miller and I. We learned 
something. We concluded that Senator Byrd was right on and we changed 
our substitute. By the way, we have never voted on the Byrd amendment.
  The plain truth is the great bulk of the time we have been on this 
bill we have been debating that amendment, and it is yet to be 
resolved.
  I remind my colleagues that Senator Thompson, the ranking Republican 
on the committee, offered a simple amendment that said we ought not 
tell the President how to set up the White House. This amendment was 
partly controversial in terms of the President's National Security 
Adviser and his terrorism adviser. That amendment was, sure enough, 
adopted. But only after 6 days of delay on the part of our Democrat 
colleagues. And then there were other delays before it was ever added 
to the bill.

  The problem is, they have delayed this bill, and not us. Everybody is 
entitled to their own opinion. They are just not entitled to their own 
facts. The weakness our colleagues on the other side of this issue have 
is that the facts are against them. What is the old deal in law? When 
the facts are against you, argue the law.
  What is the current holdup? The President of the United States, 
working with a Democrat and a Republican, has spent 4 weeks listening 
to things that have been said and concerns that have been raised, 
starting with Senator

[[Page S9372]]

Byrd. We have made 25 major changes in the President's proposal. In 
terms of the President's personnel flexibility, we have limited his 
power to eliminate exactly the concerns that have been raised by every 
opponent of the President who has spoken out on this issue.
  Does the fact that we have eliminated the ability to discriminate 
while preserving basic workers' rights in terms of being judged on 
merit change the rhetoric of the debate? No. When people are debating, 
they still act as if the President could be arbitrary or capricious. 
But the point is he cannot be under our bipartisan substitute that the 
President supports.
  We are at war. We were attacked on September 11. Thousands of our 
people were killed. The President has asked us to bring together 
170,000 people in the Federal Government to help him prosecute this war 
and protect American lives.
  After listening to many concerns, changing the President's proposal, 
and adopting 95 percent of the Lieberman proposal Senator Lieberman 
says: You have taken 95 percent of my bill. What is wrong with it, if 
you are for 95 percent of it?
  It is like a nice, shiny, fancy red truck--I remember our ranking 
member drove one in the campaign--still legendary--but it is only 
missing a steering wheel. What Senator Miller and I have done, working 
with some 45 of our colleagues, is we have taken that truck and we have 
put a steering wheel in it.
  In wartime, with American lives at risk, the President of the United 
States, asks only one thing: Give him a vote on his homeland security 
bill. Some people may view that as an extraordinarily extreme request. 
But I submit that there is not a State in the Union, whether it is 
Connecticut or Nebraska, Tennessee, New Jersey, or North Carolina, 
where you could go into any coffee bar in any drugstore or restaurant, 
and sit down and gather a group of people around and ask them the 
following question: When the President has asked for powers to defend 
American lives during wartime, should we give him these powers that he 
says that he needs? My guess is you would have a hard time finding 
somebody in Nebraska who would say no.
  All we are asking is something very different. We would like him to 
be given the tools to do the job. We are simply asking that we have a 
vote on his proposal.
  Our Democrat colleagues say: No, we are not going to give you an up-
or-down vote on the President's proposal. We are going to make you vote 
on it the way we want to write it, before we let you vote on it the way 
the President wants it. Under the rules of the Senate, they can do 
that. Under the rules of the Senate, if they have the votes, they can 
do whatever they want to do. The Democrats have the right to deny the 
President an up-or-down vote. They have the right to do it under the 
Senate rules. We know at this very moment that terrorists are plotting 
the murder of our citizens, we know this and worry about it every day. 
Under these extraordinary circumstances, the question is not what they 
have a right to do, but rather it is what is right to do.

  Let me say this. We have this little gimmick going on. It is too cute 
by half. The gimmick is that by using the parliamentary procedure of 
cloture, they are going to put the President's proposal into a 
straitjacket where they get to change it before it is voted on.
  Look, I have used parliamentary procedure myself. Every Member has a 
right to do it. But do you think the American people are stupid? Do you 
think the American people are not going to figure out what the game is 
here? Do you think the American people are not going to get it 
straight, that not only are you not with the man and do not support the 
President's request for the tools he wants, but you won't even give him 
a vote on the tools? You have the power to do it under the rules of the 
Senate, but you have to have the votes, and you don't have the votes. 
So we are going to play this game.
  I hope everybody is watching this--I hope a lot of people are 
watching it. I can tell you one thing. I used to think, before I got 
old, that I had reasonable political abilities. But I could not defend 
the position of the opposition. There is no city in my State that I 
could go into and take the position of the opponents of the President 
and walk out of there with my hat, much less with my head.
  The bottom line is we are going to go through a little parliamentary 
gimmick tomorrow where we are going to vote on cloture to try to put 
the President into a parliamentary straitjacket where he never gets a 
vote on his proposal. But there is a problem. It takes 60 votes to get 
cloture, and our Democrat colleagues do not have 60 votes, and they are 
not going to get 60 votes.
  So, rather than playing all these games while American lives are in 
jeopardy, the obvious thing to do is to give us a vote. I would be 
happy to propound a unanimous consent request to have a vote at 11 
o'clock on Tuesday, up or down, on the President's proposal. We want a 
vote on the President's proposal. Look, I know people back home. They 
are trying to pay the bills. They are trying to figure out how to get 
Sarah off to school. They are not quite paying attention. But I do not 
think they are going to believe that the President does not want his 
own proposal to be voted on. Again, they may be confused. They are not 
paying attention. They are busy. They are counting on us to do the 
right thing. But they are not stupid.
  The way to solve this thing and get on with this bill is to do 
something you are going to end up doing anyway, and that is, give the 
President a vote.
  Let me reiterate that no one has proposed a compromise that I have 
not set down and talked to him about. It continues to dumbfound me that 
we have had an issue of life and death for American citizens become a 
partisan issue. I think every person in the Chamber who has been 
involved in this debate will have to grudgingly say that this is true.
  Now before somebody comes out here and starts screaming let me tell 
you what partisan issue is. It is an issue where you draw the line 
right down the middle of the Senate and almost everybody on the left 
side of the Senate is on one side and almost everybody on the right 
side of the Senate is on the other side. That is how we define issues 
becoming partisan.
  How did it ever happen, when you saw the way we all felt after 9/11?
  Let me tell you how it happened. It happened because it is not easy 
to provide for homeland security. The vote on Iraq is an easy vote 
because, so far as I know, there is no organized, active political 
constituency for Saddam Hussein. He doesn't have an organized political 
group in America that is actively lobbying on his behalf, of which I am 
aware.
  There are some people who believe we ought to turn over American 
security to the U.N. I understand that view. I reject it. When the 
lives of my people are at stake, it is my responsibility and it is the 
responsibility of our Government. It is not the responsibility of our 
allies, not the responsibility of the U.N. I am not willing to delegate 
it to anybody else. But I respect differences of opinion.
  But that is an easy issue compared to this issue. The reason it is an 
easy issue compared to this issue is that you cannot promote homeland 
security without having to make tradeoffs.
  That is why we are here. We all want to protect Americans. I would 
never say--and I don't believe that my Democrat colleagues are--we are 
not concerned about national security. The problem concerns that it is 
not free. The problem concerns that there are tradeoffs. And the 
tradeoff is, if we are going to give the President the power to hire 
the right person, put them in the right place, and at the right time, 
if we are going to allow the President to have the tools to fight an 
enemy that did show up anywhere and could kill thousands of our people, 
we have to be willing to change the way we do business in a Federal 
bureaucracy.
  The Federal bureaucracy does not want to change the way we do 
business. Unlike Iraq, this is an issue where there are strong 
political forces that are against giving the President this power 
because they do not want to change the way they run their business.
  Look, I am not going to stand up here and state that the position 
that the rights of public employees is morally inferior to the position 
that lives are more important than ``workers' rights.'' I believe it is 
a law of order. But that is a moral judgment somebody else has to make.

[[Page S9373]]

  All I am saying is the reason this has become such a contentious 
issue is that we have one of the most powerful political forces in 
America--the public employee labor unions and the Federal bureaucracy--
and to have an effective homeland security system, you cannot have the 
horse-and-buggy civil service that we have today.
  Interestingly enough, there are only 20,000 members of the union who 
would be among the 170,000 people who will be brought together in this 
agency. And only 20,000 of them are members of unions. Yet, remarkably, 
we have an amendment pending that would give unions that represent 
20,000 workers veto power over the President's decision with regard to 
170,000 workers.
  I don't think that would make a whole lot of sense where I am from, 
and I don't think it makes sense where you are from. But that is why we 
have a battle.
  Let me also say that I think part of our problem was, when this bill 
was written in committee, and when it was being debated early on, 
nobody was paying much attention to it except organized special 
interests in Washington, DC. As a result, this was written as sort of a 
business-as-usual bill. But business is not usual. When workers' rights 
interfere with people's right to their life and their freedom, then I 
think there has to be some flexibility.
  I am going to talk more in a moment about the bill. Maybe I should 
let other people talk before I do. But let me just sum up by saying we 
have been on this bill for over 4 weeks because the opponents of the 
bill have taken that tack. We have been on this bill for 4 weeks 
because it took 6 days to get a vote on the amendment offered by 
Senator Thompson, and even then it was 3 more days before it was added 
to the bill.
  All we want is to have a vote on the President's proposal. We are 
going to get it. We can go through all kinds of games. We can fill up 
the tree, as they say. We can use parliamentary procedure. We can try 
to get cloture and put the President in a box. But the American people 
are not going to be deceived because they are not stupid. In the end, 
they want the President to have the tools he needs. But they are never, 
ever going to accept not even giving him a vote.
  Maybe you can justify this. Maybe this makes sense where you are 
from. But there are a lot of things at night when I get down to say my 
prayers for which I thank God. One of them is, I don't have to defend a 
position of the people on the other side of this issue, because I am 
totally incapable of doing it. I don't think it is defensible.

  I want to urge them once again, let us work out a compromise.
  I am going to in a moment--this is the last point I will make because 
others are getting ready to speak--outline why this amendment by 
Senator Nelson is anything but a compromise. I am going to outline for 
only a moment how this totally destroys the ability of the President to 
get the job done. I think most people, when they listen to that, and 
who are objecting, will understand what the issue is about.
  But I have given the Senator in writing the changes he would have to 
make for the President to be able to accept it. In the previous offer 
that was brought forward, we gave one simple change--preserving the 
supremacy of the President on national security. Every President since 
Jimmy Carter has had the ability in the name of national security to 
make personnel changes. But, remarkably, the Senator's amendment and 
the underlying bill take away from President Bush powers that he had 
the day before the terrorist attacks.
  How many Americans would be absolutely stunned to know that in the 
name of homeland security we are debating a bill that takes away power 
from the President to use national security powers?
  Somewhere, somehow, somebody's priorities have gotten way off base. 
Either the President and those of us who support him are completely 
lost in terms of any weighting of the reality of the world we are in, 
or the people who oppose the President have gotten badly off base and 
out of tune with the reality we face.
  Obviously, I don't make the judgment about which side is lost in the 
wilderness. But I would have to say I believe the American people are 
going to reach the conclusion that the President is right and 
reasonable and the people who oppose him are wrong and unreasonable.
  There is a way out of this mess. But the President can't do it alone.
  I urge my colleagues to end this charade, reach an agreement, and let 
us have a bipartisan bill. And, if you are not willing to do that, you 
are going to have to give the President an up-or-down vote. There is no 
other way you are going to be able to do it without it. We can go 
through the process. We can vote on cloture tomorrow. We are not going 
to get cloture. We can do it next week. But in the end, the President 
is going to get a vote. But what the President wants is not a vote but 
a compromise with one constraint--the President has only got one 
constraint: Give me something that can work. Give me the tools to 
finish the job. But don't give me tools that won't work. He has a 
little bit harder time than his opponents because their proposals don't 
have to work. His proposals do.
  That is my plea.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. LIEBERMAN. Mr. President, after the exchanges that were heard on 
the floor yesterday, I must say I hope we can come back to this debate 
on homeland security and focus more directly on all the common ground 
we have with a spirit of compromise and clearheaded perceptions that 
can bring us together so we can get this done.
  I find the comments of the Senator from Texas, who is about to leave 
the floor, so full of misunderstandings or misperceptions and so full 
of inflexibility that I must respond to them.
  The Senator talks about delay.
  Let me just recite some history on this bill. It was in October of 
last year--almost a year ago--that Senator Arlen Specter, our 
distinguished Republican colleague from Pennsylvania, and I introduced 
a bill, a piece of legislation, to create a Department of Homeland 
Security. That measure came from work our committee had done.
  But these special interests that Mr. Gramm, the Senator from Texas, 
invokes, throws around, they were not involved in the construction of 
that legislation. That legislation came from public hearings we had, 
and primarily and largely from a nonpartisan citizens commission 
created according to legislation sponsored by the former Speaker of the 
House, Newt Gingrich, chaired by two distinguished former Senators, 
Republican Warren Rudman of New Hampshire and Democrat Gary Hart of 
Colorado, who suggested a Department of Homeland Security.
  That was October. Talk about delay. The President of the United 
States took the position then that the executive office he had created 
with Governor Ridge could handle the urgent and enormous new 
responsibility post-September 11 of homeland security. We respectfully 
disagreed.
  I must say, just to harken back to the debate of yesterday, that was 
a disagreement on substance. I never would have thought to suggest that 
the President of the United States was putting the bureaucratic 
opposition to the new Department of Homeland Security ahead of the 
national security interests of the United States, which was suggested 
earlier this week by the President himself in referring to this 
marginal dispute--significant but marginal dispute--that we are having 
over how best or whether to protect the rights of homeland security 
workers.
  So that was October, November, December, January, February, March, 
April, May. In May, the Senate Governmental Affairs Committee reported 
out a bill, based on the one Senator Specter and I put in, on a 9-to-7 
vote, creating a Department of Homeland Security.
  President Bush and most of my Republican colleagues--the seven 
Republicans on the committee who voted on that--were opposed to the 
Department at that point.
  Because we are talking about delay, the truth is, if we had all 
gotten together last fall, this Department would be up and protecting 
us today. But we had a difference of opinion about it.
  On June 6, President Bush announced that he endorsed the idea of a 
Department of Homeland Security. That was the turning point that led us 
to what I thought was the inevitability that we

[[Page S9374]]

would create such a Department because of the urgent need to do so 
post-September 11, 2001.
  We worked together on a bipartisan basis with the White House. We 
accepted some of the changes that the White House had in our 
legislation. We worked with colleagues on the committee and outside--
Republican and Democrat--to improve our bill.
  At the end of July, after 2 days in markup, the committee reported 
out the bill. I said at that point that 90 percent of our committee 
bill was in concert, was in agreement, with what President Bush had in 
his bill--90 percent.
  Senator Gramm, after his considerable work on the Gramm-Miller 
substitute, said that--he raised me 5--95 percent of his substitute was 
the same as our bill.
  So can't we agree on that 5 or 10 percent on which we have 
disagreement? Can't we come together in the interests of the urgent 
national need for homeland security?
  No one is delaying on this side. Right now, the reality is that the 
Senator from Texas is leading an effective filibuster against moving 
ahead on this bill. And why? Because we have achieved a compromise on 
the major outstanding point of division, which is, how do you protect 
the rights of homeland security workers? It is a bipartisan compromise 
because one Senator, the courageous Senator from Rhode Island, has 
decided that he is going to find common ground in the interest of 
preserving the national security authority of the President while 
giving a little bit of due process to Federal workers. That is all this 
does.
  I think there may be some others of our colleagues on the Republican 
side who would support this compromise because it is reasonable and it 
meets the test that the White House set up that they did not want any 
diminution of the President's authority. Under this compromise, there 
is none. Senator Nelson of Nebraska will speak about this in a moment. 
He is an architect of this proposal.
  So the fact is, my friend from Texas does not have the votes. We have 
at least 51 on our side. And for that reason, he is not going to let us 
go ahead and vote. He asks that there be an up-or-down vote on the 
President's proposal, but what he is asking for is something that is 
pretty much unheard of around here: Don't allow any amendments.
  The President is a good man. The Senator from Texas is a good man. 
But they are not infallible. None of us is infallible. The Senate has a 
right to amend. In fact, we are asking here for one amendment.
  I wish the Senator from Texas were on the floor because I would ask 
him, wasn't he aware that the President's proposal in the House--the 
Republican-controlled House--didn't get voted on without amendment? 
There were amendments offered. They improved it. The Gramm-Miller 
substitute changes the proposal the President initially made because 
that is the way this process works.
  So if there is any inflexibility here, I say, respectfully, it is on 
the side of the Senator from Texas and those who stand with him. We are 
so close to having a reasonable compromise and a good bill to create a 
Department of Homeland Security. And he is right; the terrorists are 
out there. They are planning right now to do us damage. And we remain 
dangerously disorganized in the Federal Government.
  One of the things our bill will do is to plug the gaps, close the 
inconsistencies, break down the walls that the investigation of the 
Joint Intelligence Committee has shown us contributed, I believe 
measurably, to the vulnerability that the terrorists took advantage of 
in September of 2001--September 11.
  So I am sorry we are back to this futile, foolish debate. This is a 
good compromise, the Nelson-Chafee-Breaux compromise. Senator Nelson 
will speak to it in more detail in a moment. We agree on 90 to 95 
percent of the underlying bill. We have the same departments. Let's get 
this done and stop this inflexibility.
  Mr. President, as a show of good will, I want to offer here on the 
floor now what we informally offered to the Senator from Texas 
yesterday off the floor. He asks for something that usually does not 
happen around here, which is an up-or-down vote in the sense of without 
the right to amend.
  But just to show how anxious we are to move forward, Mr. President, I 
ask unanimous consent that immediately upon the disposition of Senator 
Nelson's amendment, Senator Gramm be recognized to offer a further 
second-degree amendment, which is the text of the President's proposal 
as contained in amendment No. 4738, and that the Senate then vote 
immediately on his amendment.
  The PRESIDING OFFICER (Mr. Johnson). Is there objection?
  Mr. THOMPSON. Mr. President, reserving the right to object, I have 
not had an opportunity to either consider the suggested unanimous 
consent request or to talk to my other colleagues, some of whom are not 
on the floor, who are directly involved in these negotiations. So for 
that reason, at this time, I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. LIEBERMAN. Mr. President, that offer remains pending. I hope 
Senator Gramm will consider it. It says that the Nelson-Chafee-Breaux 
amendment, compromise, would be voted on first, and then we give 
Senator Gramm the opportunity to have the President's proposal voted 
on.
  Now, is he worried that that means he might not have the votes for 
the President's proposal without the Nelson-Chafee-Breaux amendment on 
it?
  I ask him to consider that because it would both give him what he 
asks for and it would allow the Senate to move forward and complete our 
business, pass this legislation, get it to conference with the House, 
and create a Department of Homeland Security to protect the American 
people.
  There has been too much nonsense in this debate, too much 
irrelevancy, and not enough appreciation in this hour of urgent 
vulnerability for our country about how critically important it is for 
us not to do business as usual but to rise above the normal nonsense 
and do what we are supposed to do on foreign and defense policy, which 
is to forget our party labels, to leave our ideological rigidity at the 
door, and come here and reason together in the interest of the beloved 
country we are privileged to serve.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Nebraska.
  Mr. NELSON of Nebraska. Mr. President, I appreciate the opportunity 
to be here today and speak in favor of the amendment which, together 
with Senators Chafee and Breaux, I have submitted for consideration to 
the homeland security debate.
  I wish my good friend and colleague from Texas was in the Chamber 
because I have hunted with him. He is an excellent hunter. He is a 
great sharpshooter. Today his shots miss the target. The truth is, he 
is right on one point: The people of America are smart. They are smart 
enough to know that you are not entitled to your own set of facts, but 
it is pretty easy for somebody to mischaracterize or restate the facts 
in a way that will make their case.
  That is what happened on the floor this morning. If you want to 
attack an amendment, then refer to those who support the amendment as 
opponents of the President. Everybody knows Senator Chafee, Senator 
Breaux, and I are not opponents of the President. This is an area where 
I thought we had agreement with the White House.
  Let me characterize the facts not as I see them but as they have been 
stated by others. I refer, first, to the letter from Governor Ridge, 
dated September 5, to Senator Lieberman. I quote:

       The President seeks for this new department the same 
     prerogatives that Congress has provided other departments and 
     agencies throughout the executive branch.

  Then there are several examples set forth as bullets. The third 
bullet point reads:

       Personnel flexibility as currently enjoyed by the Federal 
     Aviation Administration.

  He also adds the Internal Revenue Service and the Transportation 
Security Administration.
  This proposal adopts the language of the Internal Revenue Service in 
connection with the reorganization of that Department. I thought we 
were in the position to offer exactly what was being requested. I am a 
little bit confused about this because I happened to be presiding the 
day my good friend from Texas appeared on the floor and

[[Page S9375]]

said, with regard to providing Presidential authority: 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.
  He went on to ask his colleagues, if we believed it worked there, 
then why do we not believe it can work here?
  That is exactly what we have offered. Now we find that is not 
acceptable.
  I have already referred to the concern I have; that is, when the 
goalposts are moved and the rules change in the middle of the game or 
the circumstances around you continue to be in flux, how in the world 
can you ever meet the expectations of the other side?
  What my colleagues and I have tried to do is offer a compromise that 
will bridge the gap to bring together that last 5 percent Senator 
Lieberman and Senator Gramm referred to, to close the gap, fill the 
last 5 percent, end the debate, and do what we need to do--vote to pass 
a homeland security bill so it can go to conference and we can have 
national security.
  It has been suggested that perhaps we are not as interested in 
national security as we are in other interests. National security is 
not only the primary interest, it is the driving force behind the 
homeland security bill. It has been suggested that there is another 
interest, as though that is going to take away from national security.
  That is not going to take away from national security because this 
amendment provides enough support for the President's powers, the 
President's authority to do what the President needs to do. It is 
consistent with what Governor Ridge has suggested, and it is consistent 
with what our good friend and colleague from Texas asked for on the 
floor of the Senate over a week ago.
  Characterization is important. But the important thing the American 
people understand is that on the floor of the Senate sometimes losing 
becomes winning. While the same set of facts are stated there, they can 
be characterized in different ways. You have seen a characterization 
today that is different than what the facts truly are.
  It is hard to find another interpretation from what my good friend, 
the Senator from Texas, has said on the floor of the Senate or what 
Governor Ridge has written very clearly in his letter.
  It seems to me we can, in fact, close the gap, stop the debate, and 
move forward and pass this legislation.
  Senator Lieberman made a good point: In the Congress of the United 
States, it is rare that a bill that is introduced in one form is in 
that same form by the time it has completed its process. There are 
amendments. There are amendments because there are different ideas in 
which we try to approach these very important issues, to find 
legislation that will solve the problems we face.

  This bill is different now than it was at the very beginning. I can 
tell you today that, if we can accept this amendment, we can, in fact, 
close the gap.
  I have met with Senator Gramm. He is absolutely right. He has always 
offered to meet to discuss this or any other issue to see if we can 
close the gap. We are continuing to have discussions. I hope we are 
able to close the gap. But if the conditions change, it is very 
difficult to close the gap.
  I hope we will be able to move beyond what appear to be partisan 
remarks this morning to what will be American remarks about how we can 
find a solution--not to characterize it as Republican or Democrat, but 
to characterize it as an American solution to an American problem 
facing the American people. And it is the American way to debate, 
compromise, and ultimately come up with a solution.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. THOMPSON. Mr. President, I would like to directly respond to the 
Senator from Nebraska. As I understand his point, it is that his 
compromise, which is looked upon as the bipartisan compromise because a 
Republican has joined in it--what Senator Gramm's efforts have done, 
along with Senator Miller, apparently is not looked upon as a 
bipartisan compromise, even though a Democrat has joined in that; that 
is just a matter of terminology--the Nelson compromise purports to give 
the President flexibility because it gives the President flexibility 
that the IRS has.
  He is absolutely right. The IRS has been mentioned in conjunction 
with this debate as one of those agencies where we have given the 
President flexibility.
  What the Senator fails to point out is that also a part of that 
debate has been the discussion of other agencies where we have given 
the President much more flexibility than we have given the IRS.
  The flexibility we gave the IRS was hotly contested and hotly 
debated, but the IRS had so many problems. They had spent billions of 
dollars trying to get their computers to talk to each other. We had 
hearings about their problems. This is one agency now. This is just one 
organization. Because of all the difficulties they had, we decided to 
give them flexibility with regard to pay, hiring, and some other items. 
But as a part of that, there was a procedure that required negotiation 
with the employees union. It required, I believe, a written agreement, 
and it required, if an agreement was not reached, it had to go before 
the Federal Services Impasses Panel.
  The Senator adopted those provisions and put it in the compromise and 
said: OK, we have given you what the IRS has.
  The only problem with that is we have given flexibility to the FAA, 
we have given flexibility to the Transportation Security Agency, we 
have given flexibility to the GAO, none of which require the head of 
those agencies to go before the Federal Services Impasses Panel.
  It is only with regard to the IRS and a hotly contested compromise 
that we placed that burden on the leadership of IRS. In these other 
agencies where we gave additional flexibility, we did not put the 
impasses panel as a part of that. So our friends on the other side find 
one area where the people running the Department have to go through 
additional hurdles to interject any flexibility, and they adopt that 
one instead of the example we have given in other agencies.
  What about that? Maybe we made the right decision with regard to the 
IRS and the wrong decision with the GAO, the wrong decision on FAA, the 
wrong decision on TSA. What is the right decision?
  Let's forget about the fact that it is 3 to 1. Let's ask ourselves, 
what is the right decision?
  I point out that we are not trying to fix one dysfunctional agency. 
Goodness knows, the Government is full of them. Instead of addressing 
them in a general fashion, what we have done is when they get so bad, 
they come before us and we give them something, some flexibility of one 
kind or another. But we are not trying to do that here.
  What the President is trying to do and what the Gramm-Miller 
substitute amendment is trying to do is to pull together 170,000 
Federal employees, requiring the coordination of 17 different unions, 
77 existing collective bargaining agreements--77 existing collective 
bargaining agreements--7 payroll systems, 80 different personnel 
management systems, an overwhelming task under any circumstances.
  Are we to equate that with the IRS, especially in light of the fact 
we impose these same requirements on these other agencies to which we 
gave flexibility? The IRS example should not be the high water mark. 
The IRS example is the low water mark. That is the least flexibility we 
can give, less than what we gave to these other agencies and certainly 
less than what we should give the President when we are reorganizing an 
entire major section of the Government involving 77 different 
collective bargaining agreements, 7 payroll systems, and 80 different 
personnel management systems.
  We are comparing elephants to peanuts. With what are we left? We are 
left with a system that takes the crux of the labor-management 
difficulties we have seen in times past where we spend months and years 
negotiating

[[Page S9376]]

items in these collective bargaining agreements, such as color of 
uniforms, whether or not the smoking area should be lit and heated, 
whether or not the cancellation of the annual picnic was in violation 
of the collective bargaining agreement. It took 6 years on an army base 
in St. Louis to resolve that one.

  With regard to issues such as those, collective bargaining and the 
myriad levels of appeals and the indefinite amount of time it takes, 
all the way to the Supreme Court of the United States, if they can get 
that far, this compromise so-called takes that totally off the table--
totally off the table. This compromise does not allow the new Homeland 
Security Department to make any changes with regard to labor-management 
relations under chapter 71 or with regard to appeals under chapter 77.
  If one looks at page 3, at least in the copy I have, of the 
amendment, chapter 97, Department of Homeland Security, my friend from 
Nebraska and his colleagues establish a human resources management 
system. OK, sounds good so far because, goodness knows, we need to 
establish a new system. We have seen the failures of the past, the 
creations of the 1920s and the 1940s that some would insist we bring 
over lock, stock, and barrel into the 21st century.
  Then it says: Any new system established under this subsection shall, 
one, be flexible; two, be contemporary but not waive, modify, or 
otherwise affect a whole list of items, including labor-management 
relations, chapter 71, and the appeals section under chapter 77.
  There are many other issues that are taken off the table, too: 
chapter 41, chapter 45, chapter 47, chapter 55, chapter 57, chapter 59, 
chapter 72, chapter 73, chapter 79. This bill takes all of those off 
the table and says you cannot touch them in your new system.
  Mr. SPECTER. Mr. President, will the Senator from Tennessee yield for 
a question?
  Mr. THOMPSON. I will be happy to yield.
  Mr. SPECTER. I have been trying to determine whether the provisions 
of the Nelson-Chafee-Breaux amendment supplements the provisions to 
title 5 of 7103(b)(1) which says:

       The President may issue an order excluding any agency or 
     subdivision thereof from coverage under this chapter if the 
     President determines that--
       (A) the agency or subdivision has as a primary function 
     intelligence, counterintelligence, investigative, or national 
     security work, and
       (B) the provisions of this chapter cannot be applied to 
     that agency or subdivision in a manner consistent with 
     national security requirements and considerations.

  The language submitted by the Nelson amendment says: The President 
could not use his authority without showing that the mission and 
responsibilities of the agency or subdivision materially changed and, 
two, a majority of such employees within such agency or subdivision 
have as their primary duty intelligence, counterintelligence, or 
investigative work directly related to terrorist investigation.
  If I might have the attention also of the Senator from Connecticut, I 
had raised this question with the Senator from Connecticut and also the 
Senator from Nebraska, or talked to their staff, and have been told 
that the provisions of the Nelson amendment supplement which is now in 
existing law.
  I have been advised by people from the administration personnel 
department that the Nelson provision replaces existing law which then 
would leave out the language of national security requirements.
  My question to one of the managers of the bill, the Senator from 
Tennessee who has the floor, is whether this is a replacement for or an 
addition to?
  Mr. BREAUX. Will the Senator yield?
  Mr. THOMPSON. Let me address it first, if I may.
  I don't know whether you would call it a replacement, total 
replacement, or an addition to. The significant thing, in answer to the 
Senator's question, under any definition it is a diminution of the 
President's authority from existing law. It is a diminution in this 
way: Under existing law, the President can make a determination that an 
agency or a subdivision of an agency is primarily involved in 
intelligence, counterintelligence, investigative, or national security 
work, and he can set aside the collective bargaining agreement.
  Under the Nelson amendment, there is an additional requirement for 
the President. He must also go through the requirement of determining 
the mission and responsibility of the agency materially changed.
  If you have a situation where a person was, in times past, doing a 
certain thing, and he is going to be brought into the new agency--and 
perhaps he is doing pretty much the same job; his job has not changed 
that much. What has changed is the rest of the world. September 11 
changed it. Our heightened requirement in security changed.
  That whole job where the President has not exercised his authority in 
times past might take on a different dimension, although he is doing 
the same job. In the first place, the President might not be able to 
make this finding. In the second instance, he would be setting himself 
up for another hurdle, for someone to challenge him in court.
  I believe the Senator will agree there has been one instance under 
current law where people have gone to court to challenge the President, 
and the President and persons got an arbitrary and capricious standard 
overcome. It is a tough challenge for a plaintiff to overcome, but the 
President has to go in there and made a determination as to how much he 
says. We are talking about national security. How much do you divulge? 
How much can you get in camera and all of that business? That is 
current law.
  Under this, he has an additional establishment that he has to make 
that there is a material change, not with regard to the work of the 
agency, as in current law, but with regard to the majority of the 
employees working in that agency.
  Mr. SPECTER. Mr. President, I agree with the Senator from Tennessee 
that there is an additional requirement. I might differ with him as to 
how substantial it is.
  Mr. THOMPSON. If I could add to my answer, under present law the 
President has the authority to make that determination based on the 
primary function of an agency involving national security. Under this, 
national security does not appear. It says primary duty: intelligence, 
counterintelligence, or investigative work. It does not say national 
security.
  What it does say is that it must be directly related to terrorism. 
Terrorism is important. But there are national security concerns that 
do not necessarily have to do with terrorism. It is a limiting of the 
circumstances under which a President can make a determination.
  Mr. SPECTER. Mr. President, if the international security 
consideration is stricken, there is an enormous difference. But that 
goes to the basic question as to whether this is in place of or in 
addition to. If there is a national security consideration, it is 
nonjustifiable. You cannot take appeals.

  All the President has to do is come to court and say it is national 
security. If national security is not in the requirement, then you get 
into the arbitrary capriciousness, et cetera, on administering appeals.
  Perhaps, if I might have the attention of the Senator from Tennessee, 
I think in listening to the Senator and looking at this, in regard to 
what you are talking about, it is clearly a replacement. It would be 
clearly redundant if it were not. It says: No agency shall be excluded 
as a result of the President's authority unless the President 
establishes these things.
  I don't see how it could be more clear. I don't see how it could rest 
side by side with current law.
  If it is a ``replacement,'' it makes an enormous difference.
  I was on the floor earlier in morning business saying if it is in 
addition to, it is a diminution of the President's power but not very 
much because of the similarity. But if it is a substitute for--Senator 
Nelson is on the floor. If I might have leave of the Senator from 
Tennessee to direct the question to Senator Nelson or Senator 
Lieberman, is it a substitute for or in addition to?
  Mr. THOMPSON. If I may do so without yielding my right to the floor.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LIEBERMAN. Mr. President, responding to the Senator from 
Pennsylvania, I will begin and still leave the floor with Senator 
Thompson. I think Senator Nelson may want to respond also.
  It is my understanding that it is the clear intention of the sponsors 
of what

[[Page S9377]]

I call the Morella-Nelson-Chafee-Breaux amendment that it supplement, 
not replace, existing language.
  I say to the Senator from Pennsylvania, this concern he expresses is 
real. This is a concern that does not go to the intentions of the 
sponsors of the amendment. I have not talked to him, but let us reason 
together how we can make clear in this legislation, in this amendment, 
what the intentions are. It is not to alter this.
  If I were to describe--and I stand to be corrected by the sponsors of 
the amendment--if I were to describe what the amendment does in this 
regard, regarding collective bargaining rights, it says to the 
approximately 43,000 to 47,000 currently unionized employees of various 
departments that will be moved to the new Department of Homeland 
Security--and remember, some of these people have worked for decades; 
some have worked for a few years--while the existing authority that 
this President, the previous President, all Presidents back to 
President Carter have had, to suspend collective bargaining rights in 
the interest of national security, these folks have continued to keep 
their jobs and be in unions because no previous President has believed 
that national security was inconsistent with their jobs being 
unionized.
  All we are saying in this compromise amendment is to now, simply 
because they have been moved from where they are--Border Patrol, 
Customs agents, FEMA, Coast Guard, civilian employees, whatever--they 
have been moved to the Department of Homeland Security, to take their 
right to belong to a union away, you have to show their job has 
changed.
  The President has to declare it and that is it. There is no appeal.
  That is my understanding of the intention of the amendment. But on 
the question, Is the amendment supplementary or does it replace, it is 
intended to be supplementary. We will work with the Senator from 
Pennsylvania to make that clear.
  I wonder if the Senator from Tennessee would mind if the cosponsor of 
the amendment spoke.
  Mr. THOMPSON. Without losing my right.
  Mr. NELSON of Nebraska. If I might respond, I agree with my friend 
and colleague from Connecticut. It is our intent this be additional 
authority, an additional opportunity for the President to make a 
decision about national security. I agree also that were it to be 
appealed, the national security would just simply eliminate the appeal. 
I am confident.
  If it is not as clear as it needs to be, we will certainly, with our 
good friend from Pennsylvania, help make it clear. Perhaps this will 
resolve the concern the White House has about this language. Our goal 
is to make it supplemental.
  Mr. BREAUX. Will the Senator yield?
  Mr. THOMPSON. I am happy to yield to the Senator from Louisiana.
  Mr. BREAUX. I think it is very clear it is a supplement to the 
existing language in section 7103. If you read our amendment it says 
that:

       No agency or subdivision of an agency which is transferred 
     to the Department pursuant to this Act shall be excluded from 
     the coverage of chapter 71 of title 5, United States Code, as 
     a result of any order issued under section 7103(b)(1).

  Section 7103(b)(1) is the existing language setting out what the 
President has to do. Ours is added to that. So it doesn't replace the 
original 7103(b)(1). That is still intact. This is a supplement to that 
and is to be read in connection with both of them together. The 
President makes that determination and it is his decision. It is like a 
teacher giving a test and the teacher is grading the test. The 
President in this case is the teacher and he grades his own test. He 
makes that determination and they are both to be read together, so 
national security is still a part of it.
  Mr. SPECTER. Mr. President, I have one additional question, if I 
might.
  Mr. THOMPSON. Before we get off that point, it doesn't matter if you 
call it in addition or supplement to. It places requirements on the 
President and the hurdles before the President that are not in existing 
law.
  Do you or do you not, in this amendment, require the President to 
establish the mission and responsibilities of the agency have 
materially changed?
  Mr. BREAUX. Will the Senator yield for a response to that?
  Mr. THOMPSON. Yes.
  Mr. BREAUX. The answer is yes. But I would also say, the point you 
made earlier, if you have the same agency today that, somehow, because 
things have changed in this country, is in fact moved to a different 
location, they are doing the same type of work, but instead of doing it 
with regard to domestic security they are doing it because of an 
outside threat by terrorists, for instance, that mission has 
substantially changed. Their mission is no longer to stop, perhaps, 
Mexicans from crossing the U.S. border into Texas. Their mission is now 
to stop terrorists from entering the United States. That mission has 
substantially changed. That meets the test. Who gives the test? The 
President. Who grades the test? The President. So that mission has 
changed if the enemy has changed. That is very clear. It is a decision 
the President would make.
  Mr. THOMPSON. If I may respond to that, the ultimate arbiter is not 
the President in this case. It is some Federal district judge. If the 
Senator from Louisiana was making this determination, I would be 
satisfied and happy and content the right conclusion would come. But 
the Senator has just given a scenario of his opinion as to what would 
constitute material change. Others may or may not agree with that. But 
there can be no dispute there is an additional requirement placed on 
the President.
  You can argue it is justified, that we didn't place that requirement 
on Jimmy Carter or Bill Clinton or the former President Bush or Ronald 
Reagan, but we are going to place it on this President at this time. 
You can make that argument. But I must say I have difficulty in seeing 
how one can argue this does not place additional requirements on this 
President to make additional determinations, on the one hand, and 
with regard to a more narrow area of things, that is terrorism, on the 
other.

  Mr. BREAUX. Will the Senator yield on that point?
  Mr. THOMPSON. Yes.
  Mr. BREAUX. The point is it is for the last 30 years under the 
existing law the President having to make this decision, that it has 
always been possible to go to Federal court under Federal law if 
someone thought the President hadn't met the existing standard. They 
could take him to court. We are not changing that at all. In the last 
30 years there has been one case. The one case ultimately said the 
President was within his authority to do exactly what he wanted to do--
one case in 30 years.
  The existing law says the standard the President has to meet is 
always subject to going to court saying he didn't meet the standard. We 
are not changing that at all.
  Mr. THOMPSON. I may say in response, the issue is not jurisdiction of 
the court, whether you go to court. I agree with that. The issue is 
what happens once you get there. Under the current law, all the 
President has to establish is as an agency it is primarily involved in 
national security.
  Under this amendment, the President would have to establish something 
similar to that, and, in addition, the primary purpose of most of the 
employees within that agency had changed. That is a factual 
determination that is a colossal headache. It is a hurdle.
  Again, you can say the President ought to have that additional hurdle 
at this time. But again I hardly see how one can make the argument this 
is not a change in existing law and we are opening up, not just one but 
at least two, avenues for Federal district court recommendations.
  Mr. BREAUX. May I make one final point and then I will sit down.
  Mr. THOMPSON. I am happy to yield for that purpose.
  Mr. BREAUX. I think we are probably not going to agree on this. I 
suggest to the distinguished ranking member, what we need around here 
is a little law and order, and perhaps we could go ahead and vote on 
it. We could resolve it very quickly. Let's just vote on it and then 
move on to the next step.
  Mr. THOMPSON. I agree with that.
  Mr. SPECTER. One additional question.
  Mr. THOMPSON. I am happy to yield to the Senator from Pennsylvania.
  Mr. SPECTER. Senator Gramm had made the comment in his earlier 
presentation that every President since President Carter has had the 
power to

[[Page S9378]]

make personnel decisions on national security grounds. We have just had 
a discussion with some of the people from the personnel department. We 
have been cited to no authority as to the personnel decisions under 
chapter 43, chapter 51, chapter 53, chapter 75 and chapter 77. These 
are all provisions of the Gramm bill. The only exception for national 
security is one on labor relations--labor-management relations in 
chapter 71.
  The question I have for the manager of the bill, the distinguished 
Senator from Tennessee, is whether he knows of any provision, statutory 
provision or other provision, which will give the President the 
authority to make personnel decisions on national security grounds?
  Mr. THOMPSON. I know of no other. Obviously, if I am proven incorrect 
on that, we will supplement this record. But this is clearly the area--
which points out the importance of it, which points out the whole 
personnel issue--getting the right people in the right place at the 
right time with the right pay and the right responsibilities and the 
right accountability is what this is all about. Therefore, Congress--
many years ago, President Kennedy signed the bill--decided that the 
President should have the right, in personnel, with regard to matters 
of national security. And even broader than that: Intelligence, 
counterintelligence, and investigative, which is something I know my 
friend from Pennsylvania knows a great deal about--investigative.

  I do not know whether that has ever been exercised, that particular 
provision, but it is a pretty broad provision. Every President since 
Jimmy Carter has exercised that provision. As far as I know, it has not 
been controversial.
  This President Bush exercised it not too long ago with regard to the 
U.S. attorneys. There was a hue and cry that went up. It was said they 
may be prosecuting terrorists and we may have to move them around 
somewhat and all that. Well and good, but you included the secretaries.
  Mr. SPECTER. That was on collective bargaining, was it not, as 
opposed to personnel?
  Mr. THOMPSON. I beg your pardon?
  Mr. SPECTER. The President exercised his authority under national 
security grounds on a collective bargaining issue as opposed to a 
personnel issue?
  Mr. THOMPSON. You could say that, but it was under this (B)(3) 
authority on national security grounds.
  Mr. SPECTER. Correct.
  Mr. THOMPSON. The secretaries were a part of the unit and the 
assistant U.S. attorneys wanted to be organized. I am not familiar with 
that concept. When I was assistant U.S. attorney, when I was brought 
in. I stayed as long as they wanted me or I wanted to stay. When they 
elected another President, I was gone. Nowadays we have a civil service 
system and folks there were trying to take it one step further and 
unionize.
  In light of what is going on in the world, the determination was made 
it is not a good idea to have people prosecuting terrorists, bogged 
down with negotiating some of these things, some of which are quite 
foolish, we have been describing. For better or for worse, that 
decision was made.
  The secretaries were incorporated because the President's authority 
only goes to taking action with regard to agencies or subdivisions of 
the agencies. So the suggestion was made to the union representatives 
at that time, as I understand it, in talking to the OPM people, let's 
change the law so we can carve out secretaries. And they said: Oh, no, 
no, no. We don't want to do that.
  We do not like the issue framed just the way it is. That created some 
controversy with regard to the only time this President has exercised 
authority there. But as far as I know, historically, all Presidents 
have exercised it. It happens to be controversial.
  I simply do not understand. If we are going to debate whether or not 
this is merely supplemental, and we don't want to really do anything 
with regard to the President's authority, why in the world can't we go 
back to the traditional authority that every President has had?
  What is the message we are sending to the American people? Do some of 
our colleagues distrust this President who seems to have the trust of 
the American people with regard to matters of life and death? From all 
the polls I can read, I think he is doing the best he can. I think all 
Presidents always do the best they can. We rally around them in times 
of war and in times of great national issues.
  Do we really want to be fighting for days on end as to whether or not 
you can say it is significant or you can say it is insignificant? You 
can say it is in addition to, you can say it is a modification, and you 
can say it is supplemental. But do we really want to change that now 
for the sake of--if it is not 40,000 union employees, it is 20,000--
those who are in bargaining units? Only 20,000 are union members out of 
170,000.
  My colleagues who support the Nelson amendment would suggest that we 
put up these additional hurdles with regard to the President's national 
security authority only with regard to homeland security. The area 
where he needs the authority the most is the only waiver area which 
they would take away. The Labor Department is not affected by this. The 
Energy Department is not affected by this. It is only the homeland 
security area. I have great difficulty in understanding the wisdom 
behind doing that at this time.
  Mr. BENNETT. Mr. President, will the Senator yield for a further 
question?
  Mr. THOMPSON. I would be happy to yield.
  Mr. BENNETT. Mr. President, I have heard this debate. It reminds me 
of why I didn't go to law school. It is easier to hire people with the 
expertise of the Senators here who have gone to law school to try to 
explain this than it is to understand it yourself.
  I have a very simple question coming from a more simple attitude 
about this whole thing. Is it not true that the President of the United 
States has said he will veto this bill if it has this in it? If that is 
the fact, it doesn't matter if we have 99.400-percent agreement on 
everything else. The legislation is not going to go forward.
  I ask the Senator from Tennessee, who is in closer touch with the 
White House than I am, if it is not true that the President said he 
will veto this bill if this is in it?
  Mr. THOMPSON. That is my understanding. I think it is important to 
understand the rationale behind that.
  Mr. BENNETT. I am not challenging that. I don't want to trigger 
another discussion of all the rationality. I want to cut to the 
question that the Senator from Connecticut asked: Why can't we come 
together, as we always do with legislation, and get this thing moving 
forward? I ask the Senator from Tennessee, Should we be aware of the 
fact that, right or wrong, the President, as is his right under the 
Constitution, has made his intentions very clear? And shouldn't we be 
paying attention to that as we make our negotiations as well as all the 
other issues that have been discussed on the floor?

  Mr. THOMPSON. Yes. Indeed. I do not think any of us want to spend all 
this time and effort on something that basically we think ought to 
happen in terms of reorganization of an important part of Government 
for naught and go before the American people and say we have failed 
because we insist on the status quo with regard to managing this thing 
but not the status quo with regard to the President's national security 
authority.
  I can't read the President's mind. We learned that our CIA Director 
declared war to his people some time ago, and he is taking a lot of 
criticism and abuse, quite frankly, from some of our people who are our 
allies--one, in particular, I think in a particularly shameless 
fashion, in order to get reelected in Germany, has said some things 
which I think is going to haunt the relationship between the United 
States and Germany for a while. In the midst of all that--albeit he was 
talking about the Iraq issue and not this one--I think it put the 
President in a difficult position when we are spending all this time 
debating.
  Again, this is the one area where we do not like status quo. Whether 
it is small, whether it is large, whether you slice it thin or you 
slice it thick, any way you cut it, it is additional steps that the 
President has to make, and additional opportunities for somebody to 
take into court, and things of that nature.
  I don't think it says there is no basis for a President saying he is 
going to

[[Page S9379]]

veto something and I wouldn't support him just because he threatened a 
veto. I am sure that I have opposed Presidents who threatened vetoes 
before. My attitude was to let them veto it because I didn't think it 
was sound, or I didn't think there was a rationale for it.
  I am not afraid to say that one should look past that. I think it is 
going to be extremely difficult to go before the American people to 
explain why we insist on passing something that the President says he 
won't sign. But it is even more important that we look at the 
underlying rationale.
  I have been on the Governmental Affairs Committee ever since I have 
been in the Senate. The thing I leave the Senate with--the sentiment, 
the idea, the notion, the feeling--is how difficult it is to make even 
a little change in the way Government works.
  We have seen from Department to Department to Department overlap, 
duplication, billions of dollars wasted, $20 billion in 1 year, 
dysfunction, inability to incorporate information technology systems 
that private industry has been able to do for years, and human capital 
crises. We are going to be losing 45 percent of our workforce in about 
5 years. We are keeping the wrong people and losing the right people. 
And we can't pay people what we ought to be paying them. We have seen 
all of that happen in the operation of government services, money, and 
so forth. It will hurt us if we incorporate all of that into this new 
homeland security bill.
  You take all of that history, all those GAO reports, all of those IG 
reports we have seen year after year saying the Government is a mess in 
many respects, and it cannot pass an audit. It is a management mess. 
People say ``Tut, tut.'' And you see an article in the paper every once 
in a while.
  We bring them down and chastise them. They go back for another year. 
The next year they come back, they are still on the high-risk list and 
nothing has changed.
  Take that in context then to the President. We are at war. We now 
perceive the need to organize our Government--at least a part of our 
Government--in a different way. We see that old systems in many 
respects simply need to be redone.
  We have a President who the American people are behind and support, 
and we still can't make any change in our system in terms of how we 
manage this new Department, in terms of a civil service system that 
Paul Volcker down at Brookings--it is not a conservative, liberal 
thing--Paul Volcker and everybody agrees is a broken system that 
underwhelms itself at every task it takes. And we still, at long last, 
even in light of this history of failure, even with the loss of 
thousands of Americans, even if we agreed on the need to reorganize, 
can't make any changes in a system that is at the heart of the changes 
that need to be made.
  The right people with the right pay and the right motivation and 
right accountability at the right place at the right time is what it is 
all about. Yet we are endangering--as we endanger as we speak--not 
being able to pass a bill to do one thing at long last.
  I fear for my country. Once this issue is over, I fear that it will 
be so difficult to make any changes in the way the Government operates 
that it is going to collapse administratively of its own weight. There 
is enough fault to go around. There are a lot of years. This did not 
happen overnight. But that is the only way, apparently, that we can 
change anything around here. We cannot come together and agree on 
changes that need to be made, apparently.
  I fear for my Government because if we cannot administer these 
departments, and we cannot make them run, we cannot get the right kind 
of people in the right places, none of this other stuff will work.
  It all gets back to personnel. You say: Well, we're OK 90, 95 
percent. That 5 percent is the nut that holds the propeller on the 
airplane. It is just a little nut--bolt, let's say--it is very small in 
weight in comparison to the weight of the airplane, but it is just what 
holds everything together.
  It is a depressing situation when, in light of all this, at long 
last, we are hung up on some of these issues. The other side says: 
Well, you shouldn't be hung up. You ought to agree with us. And we are 
saying the same thing. But I will just pass on the merits of the case 
for a moment.
  We are not making much progress on doing things differently than we 
have done before, except with regard to the President's national 
security authority--we ought to diminish that somewhat.
  Mr. LIEBERMAN. Will the Senator yield the floor without losing his 
right to the floor for a moment?
  Mr. THOMPSON. Yes.
  The PRESIDING OFFICER (Mr. Miller). Without objection, it is so 
ordered.
  Mr. LIEBERMAN. I thank my friend from Tennessee.
  I want to take a moment to try to answer the very good question the 
Senator from Utah has asked which is, regardless of what our positions 
are on this particular amendment--Nelson-Chafee-Breaux, a bipartisan 
amendment--hasn't the President said he would veto the bill if it was 
attached? I have not heard that specifically with regard to this 
amendment. Maybe I missed it. And I am glad I have not heard it because 
of the history I want to recite now.
  The President, or somebody in the White House--maybe the President 
himself--said if the bill, as it came out of our committee, had the 
provisions with regard to Federal employees, homeland security workers, 
in it, that the President probably would veto the bill.
  I must say when that was said and the media asked me about it. I 
said: I can't believe the President would veto this bill based on that 
difference because we agree on 90 to 95 percent of the components of 
the bill. It is creating a new Department. We all agree it is urgent. 
Let's get it done. We can argue about this.
  As a matter of fact, Governor Ridge was good and honorable enough to 
say to me at a meeting about this subject a week or 2 ago: I do 
remember at the beginning you, Senator Lieberman, said to me, Please, 
let's not get into a fight over civil service. Let's pass the bill. And 
then we can come back in 6 months--in fact, our committee bill requires 
the new Secretary to come back in 6 months.
  OK. We went ahead. We adopted the Voinovich-Akaka bipartisan reform 
on civil service in our committee bill. But we did not give the 
President any of the waivers he asked for and other provisions of civil 
service.

  On the question of this extraordinary authority that Presidents have 
had since President Carter to remove collective bargaining rights, we 
set up essentially an appeals process to a Federal board, the FLRA, of 
which the President appoints two of the three members. That is the one 
the President made clear he believed would be a cut in his national 
security authority and said he would veto.
  We came to the floor in a spirit of compromise, with my full 
encouragement. Senator Nelson and Senator Breaux began to see if we 
could find some common ground with the White House and the folks on the 
other side of the aisle. And there was substantial movement. In fact, I 
think we have been quite flexible in that regard. We may disagree, but 
one thing I want to say is, at least as I interpret it, we have ended 
up with a compromise amendment which does not at all diminish the 
national security authority of this President or any future President 
if it is passed.
  With regard to civil service, it gives the President new authority to 
change civil service law. It asks that, as we have done quite 
successfully with the IRS--and it is done in the public sector all the 
time--the best way to get changes in work rules is to not shove them 
down the throats of workers; try to negotiate them.
  So this bill says: Try to negotiate them with your workers. And if 
that does not work, send it to the Federal Services Impasses Panel, 
which has seven members, all appointed by the current President. So it 
is not a hostile board.
  In regard to the collective bargaining rights, we say now--and there 
is no appeal to the board I mentioned before. The compromise says the 
President has to make his case, incidentally, not just job by job; the 
order is he simply has to claim that the mission and responsibilities 
of the agency or subdivision have materially changed, as Senator Breaux

[[Page S9380]]

said, and the majority of the employees within the agency are involved 
in national security work. That is final.
  Incidentally, there has been one court case, as Senator Breaux said--
we are going to get it, look at it, and maybe enter it in the Record--
which said the substantive determination on a question of national 
security is not reviewable by a court.
  Mr. BREAUX. Will the Senator yield?
  Mr. LIEBERMAN. I will.
  Mr. BREAUX. I didn't know we had the floor.
  Mr. LIEBERMAN. Through the courtesy of the Senator from Tennessee.
  Mr. THOMPSON. The Senator does not have the floor. That is OK. I will 
be happy to yield to the Senator from Louisiana.
  Mr. BREAUX. I don't want to belabor this any longer. But I say to the 
ranking member, there is only one case out of the 30 years where the 
President's authority was ever challenged to do what he did in moving 
employees around. And in that case, which was a case in the U.S. Court 
of Appeals for the District of Columbia, on the question of whether the 
President had proved the reason for making the decision that he made, 
the court said--I will have it printed in the Record--

       The executive order under review cited accurately the 
     statutory source of authority therefor, and purported to 
     amend an earlier order that indubitably was . . . proper. . . 
     .The act does not itself require or even suggest that any 
     finding be reproduced in the order.

  I would say, in layman's language, that basically said: Look, once 
the President says I am doing this because the mission and 
responsibilities have materially changed, he does not have to make a 
finding. That statement in itself is a declaration that the court looks 
to only. It does not require any supporting findings or any other 
determination other than the President citing the statute by which he 
has made that decision. And that is the only decision we had on this 
issue by a court of appeals.
  I ask unanimous consent that decision be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

  American Federation of Government Employees, AFL-CIO, International 
 Council of U.S. Marshals Service Locals, 210 et al. v. Ronald Reagan, 
           President of the United States, et al., Appellants

                              No. 87-5335

  United States Court of Appeals for the District of Columbia Circuit

 (276 U.S. App. D.C. 309; 870 F.2d 723; 1989 U.S. App. LEXIS 3700; 130 
                             L.R.R.M. 3031)

                         April 8, 1988, Argued

                        March 24, 1989, Decided

       Prior History: [**1] Appeal from the United States District 
     Court for the District of Columbia, Civil Action No. 86-
     01587.
       Counsel: Randy L. Levine, Associate Deputy Attorney 
     General, with whom John R. Bolton, Assistant Attorney 
     General, Richard K. Willard, Assistant Attorney General, Jay 
     P. Stephens, United States Attorney, Joseph E. diGenova, 
     United States Attorney, Douglas N. Letter and Jay S. Bybee, 
     Attorneys, Department of Justice, were on the briefs, for 
     Appellants. John Facciola and Michael J. * * * assistant 
     United States Attorneys, also entered * * * for Appellants.
       Joe Goldberg, with whom Mark D. Roth and Charles A. Hobbie 
     were on the briefs, for Appellees.
       Judges: Wald, Chief Judge, and Robinson and Starr, Circuit 
     Judges. Opinion for the Court filed by Circuit Judge 
     Robinson.
       Opinion by: Robinson.
       Opinion: [*724] Robinson, Circuit Judge
       This appeal summons us to decide whether a presidential 
     executive order purportedly exerting a statutorily-conferred 
     power is legally ineffective because it does not show 
     facially and affirmately that the President made the 
     determines upon which exercise of the power is conditioned. 
     We hold that the challenged order is entitled [**2] to a 
     rebuttable presumption of regularity, and on the record 
     before us we sustain it.


                                   I

       Since 1962, collective bargaining has been available to 
     most federal employees. n1 In 1978, Congress enacted the 
     Federal Service Labor-Management Relations Act, n2 the first 
     legislation comprehensively governing labor relations between 
     federal managers and employees, Congress did not, however, 
     include the entire federal workforce within this regime. The 
     Act itself exempted several federal agencies from coverage; 
     n3 additionally Section [*725] 7103 (b)(1) authorized the 
     President, under specified conditions, to make further 
     exceptions:
       The President may issue an order excluding any agency or 
     subdivision thereof from coverage under this chapter if the 
     President determines that--
       (A) The agency or subdivision has as a primary function 
     intelligence, counterintelligence, investigative, or national 
     security work; and
       (B) The provisions of this chapter cannot be applied to 
     that agency or subdivision in a manner consistent with 
     national security requirements and considerations. n4
       nl See Exec. Order No. 10,988, 3 C.F.R. 321 (1959-1963).
       n2 Pub. L. No. 95-454, tit. VII, 92 Stat. 1111, 1191-1218 
     (1978) (codified at 5 U.S.C. Sec. Sec. 7101 et seq. (1982 & 
     Supp. IV 1986)). [**3]
       n3 See 5 U.S.C. Sec. 7103 (a)(3) (1982).
       n4 Id. Sec. 7103(b)(1).
       In 1979, President Carter issued Executive Order 12171 n5 
     which, after paraphrasing Section 7103(b)(1), eliminated a 
     number of agencies and subdivisions from coverage. In 1986, 
     President Reagan promulgated Executive Order 12559, which 
     undertook to amend the 1979 order to exclude certain 
     subdivisions of the United States Marshals Service. n6 
     Appelles then instituted an action in the District Court 
     attacking the legality of the latter order. The court 
     rejected their claim that federal marshals are not engaged in 
     protection of the national security, and consequently that 
     the order was invalid on this account, ruling instead that 
     judicial authority to reassess the facts underlying the order 
     was lacking. n7 The court concluded, however, that it 
     retained ``general power to ensure that the authority was 
     correctly invoked,'' n8 and that this necessitated 
     measurement of the order by the conditions specified in 
     Section 7103(b)(1). n9 The court held that inclusion in the 
     order of the President's determinations was a condition 
     precedent to lawful exercise of the power, n10 only in this 
     way, the court felt, could it be demonstrated [**4] that the 
     circumstances contemplated by the Act existed. n11 The court 
     further held that Executive Order 12559 was not saved merely 
     by the fact that it sought only to amend the 1979 order, 
     which did contain the recitation * * * necessary, n12 
     Accordingly, the court granted summary judgment in favor of 
     appellees, n13 and appellants came here.
       n5 3 C.F.R. 458 (1979).
       n6 In relevant part, Exec. Order No. 12,559 provides:
       By the authority vested in me as President by the 
     Constitution and statutes of the United States of America, 
     including Section 7103(b) of Title V of the United States 
     Code, and in order to excempt certain agencies or 
     subdivisions thereof from coverage of the Federal Labor-
     Management Relations Program, it is hereby ordered as 
     follows: Executive Order No. 12171, as amended, is further 
     amended by deleting Section 1-209 and inserting in its place:
       Section 1-209 Agencies or Subdivisions of the Department of 
     Justice:
       * * *b. The Office of Special Operations, the Threat 
     Analysis Group, the Enforcement Operations Division, the 
     Witness Security Division and the Court Security Division in 
     the Office of the Director and the Enforcement Division in 
     offices of the United States Marshals in the United States 
     Marshals Service.
       3 C.F.R. 217 (1986) (footnote omitted). [**5]
       n7 AFGE v. Reagan, Civ. No. 86-1587 (D.D.C. Sept. 23, 1986) 
     (opinion on preliminary-injunction and dismissal motions) at 
     5-7, Joint Appendix (J. App.) 22-24 [hereinafter First 
     Opinion]. This contention is not before us on this appeal.
       n8 Id at 7, J. App. 24.
       n9 AFGE v. Reagan, 665 F. Supp. 31 (D.D.C. 1987) (opinion 
     on summary-judgement motions) at 4, J. App. 32 [hereinafter 
     Second Opinion].
       n10 First Opinion, supra note 7, at 7. J. App. 23.
       n11 Id. at 8, J. App. 25; Second Opinion, supra note 9, at 
     4-7, J. App. 32-35.
       n12 Second Opinion, supra note 9, at 7-9, J. App. 35-37.
       n13 AFGE v. Reagan, 665 F. Supp. 31 (D.D.C. 1987) (order), 
     at 7-9, App. 39.


                                   ii

       We first must address appellants' contention that the case 
     is moot. In 1988, after the District Court ruled, the 
     President issued Executive Order 12632, which provides for 
     the same exclusions that Executive Order 12559 does, and 
     contains all that the court deemed essential. n14 Since 
     [*726] the 1988 order conforms fully to the court's standard, 
     the question areas whether a controversy still exists. 
     Appellants, while maintaining that the 1986 order remains 
     [**6] valid, assert that the 1988 order fully resolves the 
     dispute over validity of the 1986 order, and urge us to 
     vacate the District Court's judgment and dismiss the appeal. 
     n15
       n14 Exec. Ord No. 12,632, 53 Fed. Reg. 9852 (1988).
       n15 Defendants-Appellants' Suggestion of Mootness, AFGE v. 
     Reagan, No. 87-5335 (D.C. Cir.) (filed Mar 28, 1988) at 2-5.
       Important collateral consequences flowing from the 1986 
     order lead us to the conclusion that the controversy remains 
     very much alive. Since issuance of the 1986 order, the 
     Marshals Service has unilaterally abrogated the collective 
     bargaining agreement as to affected deputy marshals, thereby 
     depriving them of grievance procedures and other benefits, 
     and has terminated checkoff of union dues, to the serious 
     financial detriment of the union. n16 On this account, 
     appellees have filed unfair labor practice charges with the 
     Federal Labor Relations Authority, n17 which is holding the 
     charges in abeyance pending the outcome of this appeal. n18 
     Resolution of the charges depends up the validity of the 1986 
     order--the precise question now before us.

[[Page S9381]]

       n16 Plaintiffs-Appellees' Response to Suggestion of 
     Mootness, AFGE v. Reagan, No. 87-5335 (D.C. Cir.) (filed Apr. 
     4, 1988) at 3-5. [* * 7]
       n17 Id. at 4.
       n18 Letter from S. Jesse Reuben to Wallace Roney and Tom 
     Mulhern (Nov. 30, 1987), Attachment C to Appellees' Response 
     to Suggestion, supra note 16 at 2.
       In these circumstances, it cannot be said that the 1988 
     order has ``completely and irrevocably eradicated the effects 
     of the alleged violation'' n19--the annulment of Executive 
     Order 12559. n20 We accordingly put the suggestion of 
     mootness aside and turn to the merits.
       n19 County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 
     S. Ct. 1379, 1384, 59 L. Ed. 2d 642, 649 (1979).
       n20 Id. The Government urges us to dispose of all 
     collateral consequences by treating the 1988 order as a 
     ``curative act'' and extending its vitality as such back to 
     the date of the 1986 order. Id. at 4-5. It suffices to point 
     out that curative governmental action is not to be given such 
     retroactivity as to demolish intervening vested rights--here 
     those asserted by appellees with a view of remediation. See, 
     e.g., Hodges v. Snyder, 261 U.S. 600, 603-604, 43 S. Ct. 435, 
     436, 67 L. Ed. 819, 822 (1923) (subsequent act may not 
     deprive a person of a private right established under a 
     previous law); Forbes Pioneer Boat Line v. Board of Comm'rs, 
     258 U.S. 338, 42 S. Ct. 325, 66 L. Ed. 647 (1921) 
     (legislation may not retroactively abolish vested rights); 
     DeRodulfa v. United States, 149 U.S. App. D.C. 154, 171, 461, 
     F.2d 1240, 1257 (1972) (``a vested cause of action, whether 
     emanating from contract or common law principles, may 
     constitute property beyond the power of the legislature to 
     take away'' (footnote omitted)). [* * 8]


                                  III

       Appellants argue that the District Court improperly imposed 
     upon the President a requirement not supported by the Act. 
     n21 They insist that a presumption of regularity surrounded 
     the promulgation of Executive Order 12559, and thus that 
     there was no need to explicate findings by the President. n22 
     Appellants also claim that any infirmity in the order is 
     rendered immaterial by the fact that it simply amended the 
     1979 order, which incorporated findings of the sort believed 
     to be necessary. n23
       n21 Brief for Appellants at 9, 13.
       n22 Id. at 11.
       n23 Id. at 16-19, 22-26.
       Appellees contend that the 1986 order did not comply with 
     the Act. n24 They insist that Congress designed the findings 
     as preconditions to the President's resort to the exemption 
     authority; that the courts are the instrumentalities for 
     ensuring that the authority is properly exercised; and that 
     the courts must see some proof that these prerequisites were 
     satisfied. n25 Appellees point to other cases in which courts 
     have invalidated executive action that did not satisfy 
     statutory demands. n26
       n24 Brief for Appellees at 13.
       n25 Id. at 13-15.
       n26 Id. at 15-17, citing National Fed'n of Fed. Employees 
     Local 1622 v. Brown, 207 U.S. App. D.C. 92, 645 F.2d 1017, 
     cert. denied, 454 U.S. 820, 102 S. Ct. 103, 70 L. Ed. 2d 92 
     (1981); NTEU v. Nixon, 160 U.S. App. D.C. 321, 492 F.2d 587 
     (1974); Levy v. Urbach, 651 F.2d 1278, 1282 (9th Cir. 1981). 
     In National Federation, this court invalidated an attempt by 
     the President to define the ``public interest,'' with respect 
     to the pay of certain federal workers, ``without reliance on 
     the explicit standards'' set by Congress. 207 U.S. App. D.C. 
     at 100, 645 F.2d at 1017. In NTEU, this court issued a 
     declaratory judgment that the President's failure to perform 
     an express, statutory and non-discretionary duty violated his 
     constitutional obligation to faithfully execute the laws. 160 
     U.S. App. D.C. at 326-336, 350, 492 F.2d at 592-603, 616. In 
     Levy, the Ninth Circuit held that an executive order had to 
     comport with the authorizing statute to be valid. 651 F.2d at 
     1282. Appellants do not take issue with these unexceptional 
     holdings, and we merely observe that they land no assistance 
     in solving the problem confronting us. [**9]
       [*727] Section 7103(b)(1) makes clear that the President 
     may exclude an agency from the Act's coverage whenever he 
     ``determines'' that the conditions staturoily specified 
     exist. n27 That section does not expressly call upon the 
     President to insert written findings into an exempting order, 
     or indeed to utilize any particular format for such an order. 
     The District Court, by mandating a presidential demonstration 
     of compliance wish the section, engrafted just such a demand 
     onto the * * *.
       n27 See text supra at note 4.
       We deem the familiar presumption of regularity decisive 
     here. It ``supports the official acts of public officers and, 
     in the absence of clear evidence to the contrary, courts 
     presume that they have properly discharged their official 
     duties.'' n28 This presumption has been recognized since the 
     early days of the Republic. In the summer of 1812, President 
     Madison exercised a statutorily-conferred power to call forth 
     state militiaman ``whenever the United States shall be 
     invaded, or be in imminent danger of invasion from any 
     foreign nation or Indian tribe.'' n29 In Martin v. Mott, n30 
     a militiaman objected on the ground that the order did not 
     show facially that the President [**10] had determined that 
     there was an imminent danger of invasion. p31 The Supreme 
     Court responded:
       It is the opinion of the Court, that this objection cannot 
     be maintained. When the President exercises an authority 
     confided to him by law, the presumption is that it is 
     exercised in pursuance of law. Every public official is 
     presumed to act in obedience to his duty, until the contrary 
     is shown; and a fortiori this presumption ought to be 
     favorably applied to the chief magistrate of the Union. It is 
     not necessary to aver, that the act which he may rightfully 
     do, was so done. n32
       n28 United States v. Chemical Found. 272 U.S. I, 14-15, 47 
     S. Ct. 1, 6, 71 L. Ed. 131, 142-143 (1926).
       n29 Act of Feb. 28, 1795, 1 Stat. 424.
       n30 25 U.S. (12 Wheat.) 19, 6 L. Ed. 537 (1827).
       n31 Id. at 32, 6 L. Ed. at 541.
       n32 Id. 32-33, 6 L. Ed. at 541.
       Over the many years since Martin v. Mott, the presumption 
     of regularity has been applied in a variety of contexts, n33 
     and [*728] it is clearly applicable to the case at bar. The 
     executive order under review cited accurately the statutory 
     source of authority therefor, and purported to amend an 
     earlier order that indubitably was * * * not itself require 
     or even suggest that any finding be, reproduced in the order. 
     No more than the District Court have appellants suggested any 
     actual irregularity in the President's factfinding process or 
     activity. In these circumstances, we encounter no difficulty 
     in presuming executive regularity. We cannot allow a breach 
     of the presumption of regularity by an unwarranted assumption 
     that the President was indifferent to the purposes and 
     requirements of the Act, or acted deliberately in 
     contravention of them.
       n33 The cases doing so are legion. The following are 
     typical: INS v. Miranda, 459 U.S. 14, 18, 103 S. Ct. 281, 
     283, 74 L. Ed. 2d 12, 16-17 (1982) (specific evidence is 
     required to overcome presumption that public officers have 
     executed their responsibilities properly); Citizens to 
     preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 
     91 S. Ct. 814, 823; 28 L. Ed. 2d 136, 133 (1971) (where 
     statute prohibited approval by Secretary of Transportation 
     of federal financing for construction of roadways through 
     parks unless there was no feasible and prudent alternative 
     route, and Secretary approved financing for such a project 
     without making formal findings, Secretary's decisionmaking 
     process was entitled to presumption of regularity); 
     Michigan v. Doran, 439 U.S. 282, 290, 99 S. Ct. 530, 536, 
     58 L. Ed. 2d 521, 528 (1978) (in extradition hearing, 
     presumption of regularity insulates demanding state's 
     probable cause determination from review in asylum state); 
     Philadelphia & T. Ry. v. Stimpson, 39 U.S. (14 Pet.) 448, 
     458, 10 L. Ed. 535, 541 (1840) (where statute required 
     certain conditions to be met before corrected patent could 
     issue, signatures of President and Secretary of State on 
     corrected patent raised presumption that all requisite 
     conditions were satisfied, despite absence of recitals so 
     indicating on face of patent); Udall v. Washington, Va. & 
     Md. Coach Co., 130 U.S. App. D.C. 171, 175, 398 F.2d 765, 
     769, cert. denied, 393 U.S. 1017, 89 S. Ct. 620, 21 L. Ed. 
     3d 561 (1968) (Secretary of Interior's determination that 
     limitation of commercial bus service on portion of George 
     Washington Parkway was required to preserve area's natural 
     scenic beauty was entitled to presumption of validity, and 
     burden was upon challenger to overcome it); National 
     Lawyers Guild v. Brownell, 96 U.S. App. D.C. 252, 255, 225 
     F.2d 552, 555 (1955), cert, denied, 351 U.S. 927, 76 S. 
     Ct. 778, 100 L. Ed. 1457 (1956) (``we cannot assume in 
     advance of a hearing that a responsible executive official 
     of the Government will fail to carry out his manifest 
     duty'' by reaching a final decision on a matter before 
     complete record required by law was compiled). [**12]
       In ruling to the contrary, the District Court relied 
     heavily upon the prevailing opinion of the Supreme Court in 
     Panama Refining Co. v. Ryan. n34 There the Court, focusing on 
     what it regarded as an excessive statutory delegation of 
     legislative power to the President. n35 set for naught an 
     executive order issued pursuant to the National Industrial 
     Recovery Act by striking down the authorizing provision of 
     the statute, n36 The Court held in the alternative that even 
     if the statute was valid, the order would still be 
     ineffective because it did not set forth express findings on 
     the existence of conditions prerequisite to exercise of the 
     authority conferred. n37 The Court observed that to hold that 
     [the President] is free to select as he chooses from the many 
     and various objects generally described in the [relevant] 
     section, and then to act without making any finding with 
     respect to any object that he does select, and the 
     circumstances properly related to that object, would be in 
     effect to make the conditions inoperative and to invest him 
     with an uncontrolled legislative power. n38
       n34 293 U.S. 388, 55S. Ct. 241, 79 L. Ed. 446 (1935).
       n35 Id. at 414-430, 55 S. Ct. at 246-253, 79 L. Ed. at 456-
     464. [**13]
       n36 Id. at 430, 55 S Ct. at 252-253, 79 L. Ed. at 464.
       n37 Id. at 431, 55 S. Ct. at 253, 79 L. Ed. at 464-465.
       n38 Id. at 431-432, 55 S. Ct. at 253, 79 L. Ed. at 464-465.
       Just what situations this declaration encompasses may to 
     many remain quite obscure. That one situation, however, is 
     beyond its ken is crystal clear. The majority opinion 
     cautioned that the Court was ``not dealing with .  .  . the 
     presumption attaching to executive action. .  .  . We are 
     concerned with the question of the delegation of legislative 
     power.'' n39 The Court cited approvingly several cases, 
     including importantly Martin v. Mott, in which the 
     presumption of regularity was applied. n40 Our

[[Page S9382]]

     proper course, then, is evident; we are to abide the Court's 
     admonition that was Panama Refining does is in applicable 
     here, and that, as in Martin v. Mott, the presumption of 
     regularity is pivotal. Indeed, the Supreme Court has never 
     given Panama Refining the interpretation it received in the 
     District Court, nor, so far as we can ascertain, has any 
     other court.
       n39 Id. 293 U.S. at 432, 55 S Ct. at 253, 79 L. Ed. at 465.
       n 40 Id. at 432 n. 15, 55 S Ct. at 253 n.15, 79 L. Ed. at 
     465 n.15. [**14]
       We hold that Executive Order 12559 is effective, and has 
     been from the date of its promulgation. The judgment of the 
     District Court is accordingly reversed, and the case is 
     remanded for further proceedings consistent with this 
     opinion.
       So ordered.

  Mr. GRAMM. Will the Senator yield?
  The PRESIDING OFFICER. The Senator from Tennessee has the floor.
  Mr. THOMPSON. I yield for a question.
  Mr. GRAMM. Is our Senator aware, while our colleague from Louisiana 
cites a court case that upheld the President's power to grant a waiver 
under national security, that the Senator's own amendment changes the 
criterion from national security to terrorism?
  Mr. BREAUX. It does not.
  Mr. GRAMM. That, in fact, the very standard that the court has upheld 
is a standard that he changes. It is clear to those who are looking at 
making this work that a standard based on terrorism is not as strong as 
a standard based on national security. So I think what we are seeing, 
over and over again, is one discussion but another reality.
  I just ask the Senator if he is aware that part of what is being done 
is a change from the standard that gives the President the ability to 
waive on national security concerns to a standard to waive on terrorism 
concerns, where there is no comparable litigation, and where there are 
no comparable precedents?
  Mr. THOMPSON. In answer to that, the Senator is correct in that the 
Nelson language does not mention national security in the section that 
I am looking at that I think is the operable section and requires that 
the duty of the ``majority of the employees'' be engaged in 
``intelligence, counterintelligence, or investigative work,'' and that 
all of it, or any of it, must be ``directly related to terrorism 
investigation.''
  Mr. GRAMM. That is right.
  Mr. THOMPSON. If it is not related to terrorism, the President does 
not have the authority, the way this is drafted. But I suppose what I 
wonder is if, in effect, what we are saying--and the Senator is right; 
we are comparing apples and oranges, it sounds like with this prior 
case--but if what we are saying is that we want to make it so the 
President's actions are not judicially reviewable at all, why are we 
having this debate?
  I assume it is because we have an additional hurdle in there that 
every once in a while an honest President just couldn't make, such as 
the job changing. If the President is going to say, I have the 
authority, I can say whatever I want to say, I guess he could do that 
then. But if the President really does want to go to the trouble of 
determining whether or not the jobs of a majority of the people inside 
of an agency have changed, then that would be a situation where the 
President could not morally make such a determination.
  Mr. GRAMM. Will the Senator yield?
  Mr. THOMPSON. Yes.
  Mr. GRAMM. Is the Senator also aware that making the determination on 
the basis of terrorism is very different than making the determination 
on the basis of national security? In fact, the roots of the 
President's national security powers go back to the Constitution. It is 
unclear how the courts would interpret or define terrorism.
  Let me ask the following question. I think the Senator made a 
relevant point. If we all want the President to have national security 
powers, why are we having this debate? If you want to take the clothing 
off this amendment, is the Senator aware that in the last provision in 
the amendment that it strikes a provision in the pending substitute 
that guarantees that any power the President had under national 
security the day before the terrorist attack, he would continue to have 
after this bill? Is the Senator aware that provision is stricken by 
this amendment?
  Can the Senator imagine, if our colleagues really, sincerely want the 
President to have emergency powers, why they would want to strike that 
provision?
  Mr. THOMPSON. In answer to the Senator, I am aware of that. It is 
because if that section were in there, it would be inconsistent with 
this section.
  Mr. BREAUX. Will the Senator yield?
  Mr. THOMPSON. I am happy to yield.
  Mr. BREAUX. Just to make two quick points. No. 1, it is very clear 
that the Nelson-Chafee-Breaux amendment is a supplement and not 
replacing the original section 7103(b)(1). We are not replacing the 
language talking about national security.
  The second point, the debate on the floor has been the question about 
how difficult it would be for the President to make a showing that the 
mission and responsibilities of the agency have materially changed. I 
would say very clearly that the only court case in 30 years that has 
ever challenged the President's authority in making this determination 
said very clearly that this section makes clear that the President may 
exclude an agency from the act's coverage whenever he determines that 
the conditions statutorily specified exist. This section does not 
expressly call upon the President to insert any written findings into 
his exempting order or, indeed, to utilize any particular format for 
such an order.
  That is as clear as you can say it. When the President says these 
conditions exist, that is all he has to show, period. That is the end 
of it.
  I hope that will address the concerns of the ranking minority member 
about the President having to make findings and do things that he is 
incapable of doing. This case, the only case interpreting this, says he 
doesn't have to make any findings. It is left up to him. When he says, 
I have determined that these conditions exist, I can do it, that is not 
reviewable. The national security statute is still in place. It is 
still there. It has not been removed.

  Our amendment is an amendment to the existing 7103. The national 
security language is still in place. It is not struck by our amendment 
in any way.
  The President makes the determination and his determination is not 
reviewable by court based on the fact that these conditions do not 
exist. It is very clear.
  Mr. THOMPSON. Mr. President, how in the world can we say that the 
Nelson amendment is a supplement to the current law, when the current 
law says the President may, and the Nelson amendment says the President 
may not? Square that one with me.
  Mr. BREAUX. Will the Senator yield?
  Mr. THOMPSON. In a moment. The current law says the President may 
issue an order if he determines that the agency or subdivision has a 
primary function of intelligence, counterintelligence, investigative, 
or national security work. The Nelson amendment says no agency shall be 
excluded because of the President's authority, unless the determination 
is made that the mission and responsibility of the agency or 
subdivision has materially changed.
  You call that supplemental to, or whatever you want to call it, but 
it was not there before.
  Mr. BREAUX. Will the Senator yield on that point?
  Mr. THOMPSON. For a majority of the employees, current law says the 
agency has a primary function. The amendment says the majority of the 
employees within the agency have as their primary duty. The current law 
says, intelligence, counterintelligence, investigative, or national 
security. The amendment says intelligence, counterintelligence, or 
investigative work directly related to terrorism.
  You can call it anything you want on the Senate floor, but the fact 
is, the current law is designed to give the President authority. The 
amendment is designed to limit the President's authority. It could not 
be any simpler.
  I yield for a question, if I may.
  The PRESIDING OFFICER. The Senator retains the floor.
  Mr. BREAUX. For one moment, just to respond specifically to the 
language in the existing statute that says the President can, if he 
does certain things. Our language says, he cannot do it unless he does 
certain things. The

[[Page S9383]]

end result is exactly the same. Our language says that if the President 
makes a determination that these things exist, he can do whatever he 
needs to do in this area. The language in the existing statute simply 
phrases it differently, by saying the President can do this if he shows 
the following. The end result is exactly the same.
  Mr. THOMPSON. May I ask the Senator, if the end result is exactly the 
same, why does he insist on proposing this amendment?
  Mr. BREAUX. There are two different points to be made here. The first 
point is, the way the language was drafted it was intended to do the 
same thing by saying the President can take action if he does certain 
things. The answer to that question is, absolutely, yes. It is phrased 
differently. One is in the negative. One is in the positive. But the 
end result is that the President can do these things if he shows the 
following.
  The amendment we have says, for the first time in history, you are 
not talking about moving 5 people or 10 people or 100 people; you are 
talking about moving thousands and thousands of people. Over 100,000 
people are going to be changed. At least we ought to show that the 
majority of them have something to do with this issue. That is an 
additional requirement. It is one that he determines.
  Mr. THOMPSON. Maybe we have finally settled it. I heard the phrase 
``additional requirement.'' You can argue that because this is such a 
massive job, we ought to hamstring the President a little bit or you 
can argue because this is such a massive job that we should not.
  But the Senator is absolutely correct in that he has laid on an 
additional requirement. That is the only thing I think we have been 
trying to establish.
  Mr. LIEBERMAN. Will the Senator yield for a question?
  Mr. THOMPSON. I am happy to yield.
  Mr. LIEBERMAN. Let me say something first and then ask the question. 
The effect of the Nelson-Chafee-Breaux amendment is to add these two 
criteria for a judgment by the President in the specific case of the 
43,000 currently unionized employees who will be moved to the new 
Department of Homeland Security. That is all.
  The reason it does that is there is some apprehension, even though 
they have been doing these jobs for years and no previous President has 
found they are inconsistent with national security and being a member 
of the union, they want the President to make that determination. But 
here is the point I want to make about the court case.
  There is actually no lessening of the President's authority because 
the underlying statute says in title 5 7103(b)(1):

       The President may issue an order excluding any agency or 
     subdivision thereof from coverage under this chapter--

  Which is the collective bargaining chapter.
  Mr. GRAMM. Seventy-one?
  Mr. LIEBERMAN. It is 7103(b)(1). Then it says:

       if the President determines that--

  And in the current statute which relates to the entire Federal 
workforce, it says:

       the agency . . . has as a primary function, intelligence, 
     counterintelligence, investigative, or national security 
     work, and the provisions of this chapter--

  Collective bargaining--

       cannot be applied to that agency . . . in a manner 
     consistent with national secur-
     ity. . . .

  The Nelson-Breaux-Chafee amendment adds two other factors solely with 
regard to the employees who will be transferred to the new Department: 
The missions and responsibilities, not of the individual jobs but the 
agency or subdivision of change, and a majority of the employees within 
the agency have as their primary duties activities related to 
terrorism.
  Here is the point I want to make as I read it. That is why I think 
there is not even a hair of difference between us in what we are 
saying. The basic operative point here is the language in the current 
statute--``if the President determines that.'' It is up to the 
President to determine the standards under the current law and the two 
standards for employees transferred to the new Department that Nelson-
Chafee-Breaux adds. The Federal court has said the President's 
determination under this statute is not reviewable. That goes not just 
for national security, it goes for the two basic underlying and the two 
additional requirements that are added under this provision for 
employees of the new Department.
  This is not effectively appealable. In other words, Senators Nelson, 
Chafee, and Breaux tried to come up with an amendment which responded 
to the concerns expressed by the White House and our colleagues on the 
floor that in some way the committee's bill in this regard was 
lessening the national security powers of the President by subjecting 
it to an appeal to the Federal Labor Relations Authority. We cut that 
out now.
  I must say, I believe because we are so interested in getting this 
done we have been quite flexible on this side. I ask my colleagues on 
the other side, particularly the Senator from Texas, to take a close 
look at this because of the urgency of creating a homeland security 
agency. Let's try to find common ground and agree the President has 
essentially unassailable authority under this provision, exactly what 
he wants. It gives a small degree of what might be called due process 
to Federal homeland security workers against an arbitrary action by a 
President.
  Frankly, under this wording and based on that court decision, the 
odds are a President could act arbitrarily here, too, if he invoked 
national security.
  I thank the Senator from Tennessee for yielding. I guess my question 
is: Does the Senator not agree with me?

  Mr. THOMPSON. Mr. President, let me pose a question to my friend from 
Connecticut. Is it the Senator's determination that this language he 
quoted under subsection (2) that ``The President may issue an order 
suspending any provision of this chapter . . . if the President 
determines that the suspension is necessary in the interest of national 
security,'' is it the Senator's understanding that would supersede the 
new requirement that he find the responsibilities of the agency have 
materially changed?
  Mr. LIEBERMAN. Looking at that section--incidentally, the language, 
the Nelson-Chafee-Breaux amendment amends decisions made under 
7103(b)(1). (b)(2) I think gives the President authority to suspend any 
provision of the chapter specifically with respect to any installation 
or activity located outside the United States of America.
  It is not diminished at all, not really affected at all.
  Mr. THOMPSON. The Senator points out the provision I just quoted is 
with respect to an agency or activity located outside.
  Mr. LIEBERMAN. In responding to the Senator from Tennessee, my 
reading of that section (2) is simply to restate the President's 
authority, not only with regard to employees of the Federal Government 
within the United States of America and the District of Columbia but 
outside the United States of America and the District of Columbia.
  Mr. THOMPSON. Mr. President, that is a big difference. I do not think 
it has anything to do with employees inside the United States of 
America. I think that section only has to do with employees outside the 
United States of America.
  Mr. LIEBERMAN. I think that is right.
  Mr. GRAMM. Will the Senator yield?
  Mr. THOMPSON. Which would leave us, once again, in a situation where 
the President is having to make a new determination because there is 
``concern''--concern we did not have with regard to any of these other 
Presidents, but we have concern with this President at this time. One 
can argue it is minimal. One can argue it is almost the same.
  We are creating some interesting legislative history here. I wonder 
how anybody can ever contest the President after this discussion, quite 
frankly, but if that is the case, why in the world do we want to 
announce to the world we want to spend 2, 3, 4 days arguing over 
whether or not to diminish the President's authority a little bit or 
whether or not to put up an additional hurdle before him, when he is 
saying to us and the world--presumably, I do not know how onerous this 
is going to be; perhaps it will not be very onerous at all. It is just 
not right. It is just not right to diminish the President's authority

[[Page S9384]]

or to put up additional requirements of him at this time.
  Mr. GRAMM. Will the Senator yield?
  The PRESIDING OFFICER. The Senator from Tennessee has the floor.
  Mr. BENNETT. Mr. President, I ask unanimous consent I be allowed to 
make a comment without the Senator from Tennessee losing the floor.
  Mr. THOMPSON. Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. BENNETT. Mr. President, I have been here for an hour and a half 
now listening to this debate, listening to the argument going back and 
forth, and the conclusion I think I hear from the Senator from 
Louisiana and the Senator from Connecticut is an interesting one. It 
may not be the conclusion they really think they came to, but the 
conclusion I hear them saying, particularly in the final statements 
that took place, is they put this in the amendment to give the labor 
unions a sense of security but, in fact, that security is not there, so 
we can vote for the amendment with a clear conscience; that they did 
what the unions wanted them to do so they would not feel nervous about 
being put into this new Department, but reading their interpretation of 
the law, they are saying it really does not make any difference.
  The last comment from the Senator from Connecticut that even an 
arbitrary and capricious action by a President--and he made it clear he 
did not expect this President to do that, and I appreciate his 
graciousness in that, but then in a hypothetical, an arbitrary or 
capricious action by a President could still go unchecked under this 
amendment and, therefore, we ought to embrace it.
  If that is, in fact, the case--I will look at it very closely with 
some help from people who are burdened with a legal education, as I am 
not--if that is, in fact, the case, I think the Senator from 
Connecticut has just exposed himself to a little criticism from the 
unions.
  How can he have misled them into thinking he was doing something 
substantive on their behalf and at their behest if, in fact, it is not 
substantive and the President would get everything he wants?
  Of course, the same question arises from the White House. If, in 
fact, the White House is seeing no substantive change and this is more 
of a cosmetic kind of a thing, why are they threatening to veto?
  So I am now going to leave the floor and go to lunch. I have some 
time scheduled later in the afternoon when I will talk about something 
else, but I have found this to be a very interesting exchange. Without 
in any way attempting to diminish the sincerity, integrity, or 
intelligence of those who have engaged in the debate on both sides, it 
strikes me a little like the medieval debate about the number of angels 
who can dance on the head of a pin.
  If, in fact, as the Senator from Louisiana said and then the Senator 
from Connecticut summarized, the net effect of this amendment in this 
area is to not change the law or ultimately take any of the President's 
power away----
  Mr. GRAMM. If that were the effect.
  Mr. BENNETT. The question arises, why are we doing it? Either there 
has been a misleading of the unions so they feel a false sense of 
security that they do not really get or there is, in fact, some 
substantive change that we are supposed to not notice on this side of 
the aisle.
  As I say, I do not challenge the intelligence, the integrity, or the 
motives of anybody who has engaged in this debate, but as a layman, 
standing here for an hour and a half, listening to the debate go back 
and forth, I draw that conclusion. I find myself quite perplexed over 
the intensity with which this battle has been fought if indeed that is 
where we are.
  I see the Senator from Connecticut is on the floor, and I will be 
happy to yield to him for whatever comment he may wish to make.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. LIEBERMAN. I thank the Chair. I want to respond, and then I will 
yield the floor. I know other Members in the Chamber wish to speak.
  I appreciate what the Senator from Utah has said because I think he 
has come to the nub of it. Part of what this dialogue has reflected is 
how much people on our side, including the folks from the Federal 
worker organizations, want to get this bill passed. There has been a 
substantial change from the original wording of the committee bill, 
which did allow an appeal to the Federal Labor Relations Authority from 
the decision of the Secretary--or administration in these cases.
  Effectively what we have done is to add two more criteria for the 
President to base his decision on as to whether union membership is 
inconsistent with national security, but we have not diminished the 
President's authority to make that decision. In other words, the same 
high authority he has had, sustained by the court decision we have 
cited and the two criteria that are there now, he has that same power 
under the two we have added.
  The Senator asks: What have we done then? By adding two more 
standards, what we have done is to establish a kind of protection 
against truly arbitrary use by some future President of this 
extraordinary power the statute gives. What is the protection against 
arbitrary? The President has to make the case that he has determined, 
and let me read from the Nelson-Breaux-Chafee amendment: Mission and 
responsibilities of the agency or subdivision has materially changed--
and this is only with regard to these employees who have now been moved 
to this Department; the President's authority remains unchanged with 
regard to every other Department--and that a majority of employees 
within the agency or subdivision have jobs directly related to 
terrorism.
  I agree with the Senator. I have forgotten the word he used, and I 
wish I could recall it, but the Senator is wondering now why we are 
spending all of this time arguing about this. In my opinion, we should 
not. We should be adopting the whole bill and sending it to a 
conference committee so we can get it done soon and everybody, 
beginning with the President, can claim a victory in the name of 
national and homeland security.
  Mr. BENNETT. Mr. President, I thank my friend from Connecticut, the 
chairman of the committee, for his attitude and his approach to this. I 
will, in good faith, go back and examine it. In honesty, though, I must 
indicate I am not sure examining it is going to change my position, for 
this reason: The Senator from Connecticut has magnanimously, and I 
think accurately, said he does not believe our current President will 
abuse this power, and he has referred to some future arbitrary 
President.
  Nonetheless, he says there will be some kind of review. At the risk 
of sounding paranoid myself, I think that is enough of an opening, 
enough of a crack in the door, for some future union leader, who might 
not have the same kind of motives that are being attributed to our 
current President, to go through that opening and, for reasons totally 
unrelated to the mission of the Department, reasons totally unrelated 
to the protection of the American homeland, decide that he or she wants 
to pick a fight with the President and set in motion a series of 
hearings and activities within the civil service procedure.
  I do not know how many other Members of this body have served in the 
executive branch and been involved in civil service procedures. I have. 
I went into the executive branch thinking I knew something about 
personnel. I had hired and fired, I had been involved in difficult 
challenges, and I thought I understood the process. I was the biggest 
babe of all the babes in the woods when I got into that circumstance. I 
ended up with an employee who was totally incompetent, totally 
unqualified for the position into which I innocently and foolishly 
placed her. I immediately tried to get rid of her.
  I served in the administration for 2 years. Then I left the 
administration, and while I was in my private life, I got a phone call 
saying I had been summoned to a civil service hearing on the case of 
this woman X number of years after I had left the Government. I went to 
her hearing, and I testified in her hearing as to the situation. I was 
astounded that it was 3 or 4 years--whatever the amount was--after we 
had initiated the action to remove her from the position for which she 
was totally unqualified. It had dragged on that long. I had finished my 
service in the executive branch. I was out in private

[[Page S9385]]

practice. I was called back in to testify, and it was made clear to me 
that this hearing was by no means going to be dispositive of the case; 
it would go on beyond that.
  If there are additional hurdles being placed on the President's 
authority in this Department by this amendment, in all good faith, with 
a sincere attempt on the part of my friends who are working on this 
amendment to try to come to a resolution, my hesitancy stems from that 
experience. If indeed some labor leader decides he or she wants to pick 
a fight with the President and use those additional hurdles for some 
motive unconnected with national security, I am not comfortable giving 
them that opportunity, particularly when they do not have it now.
  The argument is being made, they are being transferred into a new 
Department and so they need to be protected. The statement by the 
Senator from Connecticut, that I quoted back to him and he said I was 
probably right, is this is being done to give them a sense of 
protection and comfort but that substantively it is not any different. 
It may very well be that at the end of the day, after it goes through 
the courts, substantively it will not be any different. The position 
taken by the Senators from Louisiana, Connecticut, and Nebraska will be 
exactly right. But if that day comes after 6 years of adjudication and 
fooling around, with a Department that must be almost at hair-trigger 
capacity to deal with the threat, I am not going to accept that. That 
is my concern. To say at the end of the procedure the President will 
not have lost any power, all he will have had to do is go through some 
additional procedures to exercise his power and therefore nothing is 
threatened, is to say we are not focusing on the mission of the 
Department.

  The whole reason we are creating the Department is so we will have 
faster response time, so we will have better coordination on a threat 
that did not exist when these situations were created in the first 
place.
  Mr. NELSON of Nebraska. Will the Senator yield?
  Mr. BENNETT. I am happy to yield, with the understanding I do not 
lose the floor.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. NELSON of Nebraska. I suggest the Senator from Utah makes a good 
point in terms of not wanting this to go through an endless review 
process that will take years. It can take a substantial amount of time 
and tie in knots the entire operation. The reason that is unlikely, and 
most likely impossible, is the court case, the one case in 30 years, 
where it is made clear that if the President performs by making all the 
points that would be required by law, that is essentially 
nonreviewable.
  All that is being proposed here is that there are two additional 
requirements that can be met, as well, and if the President dots the 
i's and crosses the t's and in good faith makes a determination that 
the court is not going to review it. It is important the court would 
not review it if he did not dot all the i's or cross the t's. I expect 
this President and the future President to do the right thing under the 
law.
  That being the case, there is absolutely no reason to believe this 
will be tied up in court or there will be endless appeals by those who 
feel aggrieved by the determination. That is why it is important, 
whether you transfer these individuals or you go with the status quo, 
this body in the past and I think this body today has dealt with 
establishing requirements that must be met so that when they are met, 
due process has been achieved, the courts are not going to meddle in 
this process, and they are not going to review the administrations of 
the Congress when it comes to national security.
  Mr. BENNETT. I thank my friend from Nebraska. But he comes back to 
the basic statement I made to the Senator from Connecticut. If in fact 
this is not really changing anything, and in fact there will be no 
significant delays, and if in fact the President has not lost any 
power, why is the amendment being offered? Why don't you just say if, 
in fact, nothing is going to change, we will not change it? And the 
issue that has been raised again and again is that the Senator from 
Texas put that exact statement in his amendment, he and the Senator 
from Georgia, that says nothing in this bill shall diminish the 
existing power of the President and the amendment before the Senate 
makes it very clear that statement has to go.
  There has to be, by definition, some diminution of the power of the 
President.
  I remember in such few Supreme Court cases I have reviewed one 
situation where the Court was confused what Congress was doing--
surprising the Court would ever be unclear what we do; it is always so 
clear--the Court came down on the one side of the case with this 
comment. It said: We cannot assume that Congress committed a vacuous 
act. Therefore, they must have intended to have changed something or 
they wouldn't have passed this.
  That is where we are here. We must, if we adopt the amendment 
proposed by the Senator from Nebraska, be assuming some diminution of 
the President's power. If not, why are we doing it?
  Once again, I am perfectly willing to talk about diminution of the 
President's power if it is arbitrary and capricious and if it is 
damaging to the due process of employees. But this Department is not 
the place to experiment with that. This Department is the Department 
that is geared for quick action, for quick protection of Americans 
under attack, and of all places where the President's ability, the 
Secretary's ability to move quickly should not be hampered by 
additional requirements, this is the place. This is the Department 
where that should not happen.
  To turn that proposition on its head and say that the President's 
power is as it is in every other Department, but it will be slowed down 
in this Department, is something I don't understand.
  Mr. NELSON of Nebraska. If I thought this would slow down the 
process, if I thought this was a diminution of the President's 
authority to make determinations, I would not offer it.
  It is important to distinguish between the threshold requirement and 
the President's power. If you want to defeat this, people will say it 
diminishes the President's power. It does not diminish the President's 
authority to make determinations. It does not, through the court cases, 
diminish the President's power and authority to make certain 
determinations.
  In this particular situation, the threshold decision about whether or 
not the President meets that decision without regard to the President's 
power to make the decision that there has been a material change, that 
clearly is a reasonable requirement in this particular situation 
because you are moving one group from their current situation to 
another situation. The question will be, Is there a material change as 
it relates to those responsibilities that are set out? It does not 
diminish the President's power or authority.
  The PRESIDING OFFICER. The Senator from Utah has the floor.
  Mr. BENNETT. I will yield the floor. The Senator from Texas wants to 
get into this, and I am more than happy to facilitate that for him.
  Let me close my statement with this comment. By virtue of my own 
background and my committee assignments, I happen to find myself in 
front of groups made up of executives perhaps more often than not. I 
asked this question, whenever this subject comes up, to the executives 
that are talking to me about this Department.
  The first question: Have any of you ever been involved in a major 
corporate merger? Immediately, the smiles start around the room as the 
understanding of the implications of that question get through to them. 
They nod, yes.
  I ask: Has it been a pleasant experience? In every case, the answer 
is no. Mergers are always difficult.
  Here is a merger involving 170,000 employees gathered together from 
some 22 different agencies, each with its own culture, background, 
personnel procedures, and understanding. Anyone who thinks Government 
employees live in a monolithic world, regardless of which agency they 
work in, lives in ``Alice in Wonderland.'' Every agency has its own 
culture and its own way of doing things, and it is almost impossible to 
get them to deal with each other.
  Then I say to them: If you were tapped by the President to be the 
chief executive officer of this new agency and you were told the 
employees who came into the agency in the process of it being created 
brought with them, by

[[Page S9386]]

law, all of the personnel procedures and activities they had in their 
previous agencies, would you take the job?
  I have not found a single volunteer yet. Basically, aside from the 
legalities of this--which, again, as a layman I hear the lawyers 
arguing back and forth--aside from the legalities, that is what drives 
me in this debate. I want to view this as an agency which is governable 
when it is created.
  As I said on the floor before, I lived through the creation of the 
Department of Transportation and all of the difficulties connected with 
bringing those groups together--a big Department but, compared to this, 
relatively small. I was at the shoulder of the second Secretary of 
Transportation, John Volpe, as he wrestled with those problems. I saw 
firsthand how essential it was for him to have flexibility in a variety 
of ways which the organized government employees unions did not want to 
give him. He got it in the creation of that Department by congressional 
mandate, and he was able to do what he was able to do by virtue of 
that.

  I was not around, but I can read about the creation of the Department 
of Defense, which was on the scale that we are talking about here. It 
is not beyond the importance of our understanding how significant this 
challenge is going to be for us to recognize that the first Secretary 
of Defense committed suicide under the pressures of trying to make this 
all work. The Department of Defense probably never did work until after 
the Goldwater-Nichols Act, some 15 or 20 years after it was formed.
  Let us understand as we go forward that we should be erring on the 
side of giving the Secretary and the President more flexibility, more 
authority, more ability to move quickly rather than less.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas is recognized.
  Mr. GRAMM. Mr. President, I do not know how much you learn by having 
this job, but one thing you learn is patience.
  Let me say it is probably a good thing I didn't get the floor earlier 
because I would have gotten up and accused my colleagues of insulting 
my intelligence. But now I realize that the authors of this amendment 
have not the foggiest idea of what this amendment is about or what it 
does.
  Let me just start. There are a lot of points I want to make, but let 
me just begin with some English points. Before we get to legal points 
or security points, let's just talk about the English language.
  Our colleague from Nebraska said: I wouldn't do the amendment if I 
thought it limited the President's power.
  I would like to ask him to read the words of his amendment, on page 
12, under the section that has to do with the President's labor-
management powers. Remembering the President has the power in the name 
of national security to not put people out of the unions. That is a 
made-up term that the opponents of the President use over and over and 
over again. It is totally false. Nobody can take people out of unions. 
What it does is set aside work rules that inhibit the ability of the 
Department to do the job of providing national security. So the 
President has this exclusionary authority under the name of national 
security.
  Our colleague from Nebraska, Senator Nelson, says his amendment does 
not reduce the President's power. Let me start with the English 
language, and let me read line 10 on page 12. This is a heading, and 
the heading is: ``Limitation On Exclusionary Power.''

  If it is not limiting the President's power, what is it doing?
  Mr. NELSON of Nebraska. Will the Senator yield?
  Mr. GRAMM. Let me make my point. I have listened here for 2 hours, 
trying to get the floor.
  If this is not limiting his exclusionary power, this is false 
advertising. It does, in fact, go on and limit his power. But that is 
not the end of it.
  Then, on page 14, you have a new section heading, and what do you 
think the first words of it are? ``Limitation Related To Position Or 
Employees.''
  Our colleague from Utah said he is not a lawyer and this is a hard 
debate. I am not a lawyer either although I guess over the years you 
learn how to read legal documents. But I do know a little bit about the 
English language. When heading after heading after heading is about 
limitation of power, you are talking about limiting power.
  Let me just start from the beginning because our colleague from Utah 
came over, listened to a lot of things that didn't make any sense to 
him, and he made a point. The point was, either this amendment does 
nothing or the authors of the amendment are not explaining what the 
amendment does.
  I will--certainly to my satisfaction, hopefully to others'--convince 
people that this amendment does a great deal. This is not some cosmetic 
change, where members of organized labor are being deceived. It looks 
to me as if they wrote the amendment and they knew exactly what they 
were doing. Let me start with just some obvious points.
  Besides the fact that the amendment is full of sections with the word 
``limitations'' in the title, the amendment strikes the following 
language from the pending Gramm-Miller substitute. Let me read the 
language. You heard our colleague from Nebraska say we are not trying 
to take power away from the President. Let me read you the language 
they strike.
  The language reads as follows:

     notwithstanding any other provision of this act . . .

  I think people understand English. That means no matter what this act 
says.
  The language they strike says:

     . . . nothing in this act shall be construed to take away the 
     statutory authority of the President to act in a manner 
     consistent with national security requirements and 
     considerations as existed on the day of the terrorist attack 
     on September 11, 2001.

  In other words, no matter what else this amendment said, if it had 
not struck this language, the President would have the same national 
security power after this bill became law that he had on that horrible 
day, September 11. But guess what. This language is stricken by the 
amendment of the Senators. If they were not changing the President's 
powers, why did they strike this provision? They struck this provision 
because they may not know they are changing the President's powers but 
the people who wrote the amendment know they are changing the 
President's powers. And if they did not strike this provision, then 
everything they did in limiting his power would be nullified.
  Let's just start with what they did. Let me remind my colleagues of 
something that the opponents of the President desperately want you to 
forget. The President, in terms of waiving these labor agreements that 
limit his ability to hire new people, move people, and to put the right 
person in the right place is also limited by these agreements that 
restrict the ability to change policy concerning carrying firearms, to 
change the physical makeup of inspection areas at customs, and to 
deploy a Border Patrol agent in an area where there is no laundry.

  Mr. LIEBERMAN. Will the Senator yield for a very brief question?
  Mr. GRAMM. I will be happy to yield, but let me just get through my 
basic points, and I will be happy to yield. I want some coherence to 
it.
  Mr. LIEBERMAN. It is a factual question. I think the Senator is 
confusing the situation.
  Mr. GRAMM. Let me go ahead and yield if the Senator is going to talk.
  Mr. LIEBERMAN. The Senator refers to the power of the President in 
reference to waiving elements of collective bargaining agreements. That 
is not affected by this section. I think it is the right to join unions 
or remain in unions the President can override here, not elements of 
the collective bargaining agreement.
  Mr. GRAMM. Let me reclaim my time. It is the collective bargaining 
agreement and elements of it that the whole waiver is about. And I will 
get back to that.
  Let me go back to my point. The President did not ask for any 
additional authority in the name of homeland security to waive 
collective bargaining agreements. He never asked for additional power 
because every President since Jimmy Carter has had that power and every 
President since Jimmy Carter has used that power.
  You might ask yourself, if the President never asked for that power, 
why are we debating it? Why are we debating the President's waiver 
power if he didn't even ask for new power?

[[Page S9387]]

  The reason we are debating it is the underlying Lieberman amendment 
and the amendment that is proposed by Senator Nelson take power away 
from this President that every President since Jimmy Carter has had.
  We are in the remarkable circumstance that terrorists have attacked 
America. They killed thousands of our people. We are writing a bill to 
give the President the tools he needs to fight and win the war. The 
first provision in this bill is to take away from the President powers 
that every President since Jimmy Carter has had. It almost sounds 
unbelievable. But believe it.
  A second point that is interestingly enough even more unbelievable: 
Under this bill and this amendment, the members of Government who are 
moved into the Homeland Security Department would find themselves in a 
position that the President, in the name of national security, has 
fewer powers in hiring the right person, putting them in the right 
place, and moving them than he does at the Labor Department or the 
Office of Personnel Management or any other part of the Government. 
Interestingly enough, this bill and their amendment limits the 
President's emergency powers--not for the Government as a whole but 
only for the Department of Homeland Security.
  My third point is that we have heard this talk about these court 
rulings. It is a very good point. But, unfortunately, it makes the case 
against their amendment. These court rulings are on the basis of 
national security. The Constitution gives the President power as 
Commander in Chief.
  When the President in the past has made a ruling based on national 
security--Senator Breaux made the point, repeated by Senator Nelson--
those decisions have not been judicially reviewable or the court has 
deemed them not to be judicially reviewable. That is a pretty 
substantial power. But it is a power rooted in the Constitution.
  Guess what they do with this amendment. They change the President's 
power so the President has the power to move only in terms of their 
waiver--not on the basis of national security but on the basis of 
terrorism.
  Terrorism is not mentioned in the Constitution. Terrorism has not 
been litigated. Maybe it will be litigated and the power will be 
upheld. But the Office of Personnel Management, the experts in this 
area, the person who will probably be the Secretary, and the President 
of the United States, believe that changing the President's waiver 
power and basing it on terrorism rather than national security is a 
diminution of his power.
  If somebody didn't think so, why is it being done?
  Let me go my fourth point. We have heard a lot of discussion but let 
me try to get down to the facts. Again, we are all entitled to our own 
opinions. We are not all entitled to our own facts.
  There are 20,000 union members among the 170,000 people who are going 
to be moved into this Department. There are 20,000 other people who are 
covered by collective bargaining. But they are not union members.
  Under this amendment, rather than the President having his broad 
exemptive power to put the right persons in the right place at the 
right time, the President would now have to enter into negotiations. So 
we set up the Department. We are trying to get moving. We are trying to 
prevent another attack. We are trying to prevent Americans from dying. 
This is pretty serious business, in other words.
  What does the new Secretary have to do? He shows up, and 170,000 
people are moved. He comes into his office. What is the first thing he 
has to do under this amendment? Double the number of people at the 
principal ports of entry? No. Change the disposition of agents to keep 
nuclear weapons from being brought into New York Harbor? No.
  The first thing the President has to do is to enter into binding 
arbitration with a labor union that represents 20,000 of the 170,000 
people who work for the Secretary.

  Under this amendment, 20,000 union members and their unions would 
negotiate on behalf of 170,000 people, and 20,000 of them aren't even 
members of the union.
  Talk about a power grab--this is an extraordinary power grab.
  Before the Secretary can do anything, he has to enter into binding 
arbitration with these 17 unions that are representing 20,000 of the 
170,000 people in this Department, and only 20,000 of them are union 
members. He has to enter into a binding arbitration with those unions 
that will bind the work rules for 150,000 people who are not even union 
members.
  What happens if the unions won't agree to the change in rules that 
would change the disposition of people in the Department to try to 
prevent a terrorist attack? What happens? You have binding arbitration. 
So here we are trying to protect people's lives, and rather than 
sending agents where we need them to go, we are in binding arbitration.
  Then a panel, which has the historic role of making decisions about 
whether a governmental department had the right to cancel a Christmas 
party or not, is now going to be making a decision governing the 
running of the Homeland Security Department.
  Mr. SESSIONS. Mr. President, will the Senator yield for a question on 
that point?
  Mr. GRAMM. Yes. I would be happy to.
  Mr. SESSIONS. Mr. President, I served in the Federal Government 
bureaucracy for about 15 years as a Federal attorney and as a U.S. 
attorney. Trust me, Federal employees, as Senator Bennett said, have 
tremendous rights.
  I was rather shocked, in connection with some of the things Senator 
Gramm has been saying, to read some recent developments.
  After September 11, is the Senator aware that the Customs Service 
wanted to require its inspectors--management--at 301 ports of entry to 
wear radiation detection pagers to help detect attempts to import 
nuclear and radiological materials across our borders, and that the 
National Treasury Employees Union--members of which are some of my good 
friends--objected saying that wearing the pagers should be voluntary 
and fought to invoke collective bargaining on the issue, which would 
have taken at least a year to resolve?
  Mr. GRAMM. First of all, I have to say to my colleagues that I am not 
aware of that case. But I am aware of the case at the Boston airport 
where Customs wanted to change the makeup of the inspection room to 
make it more efficient, and the National Treasury Employees Union 
appealed it to the FLRA, and they sided against Customs and the changes 
were not made.
  I am also aware that when there was an effort by INS to put more 
agents at the airport at Honolulu because of the large number of 
flights coming in and more inspectors were needed. In this case, the 
labor union representing the INS employees in Honolulu filed a case 
with FLRA saying it violated their contract to hire more agents. Guess 
what. The FLRA ruled in their favor.
  Maybe someday you could get it straightened out. But what happens if 
by not getting it straightened out in time somebody's mama or 
somebody's child ends up being killed?
  Mr. SESSIONS. Is the Senator aware that after September 11 the 
Customs Service signed a cooperative agreement with several foreign 
ports because we are concerned about ports being used to ship weapons 
of mass destruction here, and the best way to do it is to identify that 
as a foreign port before it gets here--that they signed a cooperative 
agreement allowing our inspectors to preinspect cargo abroad before it 
sailed here.

  The Customs Service wanted to send its best agents to these ports 
because these are sensitive foreign assignments, and the National 
Treasury Employees Union objected, saying that internal union rules 
should determine who should be sent on these assignments, not the 
Customs Service managers.
  Mr. GRAMM. I am aware of the case where an effort was made, in terms 
of foreign deployment, to pick the most able people because you have a 
limited number of people. That decision was overridden by the FLRA. 
They said you had to send the most ``senior'' people in terms of 
seniority.
  I would say these are exactly the kinds of problems the President is 
trying to deal with. The President is not trying to deny people the 
ability to pay union dues, if they choose. The President is not trying 
to discriminate against people based on race, color,

[[Page S9388]]

creed, national origin. The President is trying to put the best person 
in the best place at the right time. The Senator has just outlined 
several examples of where we have not been able to get the job done in 
the past, and even where we have gotten the job done, that it has often 
been 14 months later.
  The point is, these terrorists--and we know there are thousands of 
them--are not taking a sabbatical while we are having this debate.
  Mr. SESSIONS. If the Senator will yield, in reference to Senator 
Bennett's comments, merging these agencies is a difficult task. They 
come with different backgrounds and legal prerogatives and cultures 
that they have had. As a U.S. attorney, I represented every Federal 
agency in my district, which would include the Corps of Engineers, the 
Coast Guard, Treasury, Customs, the INS, the DEA, the FBI--every agency 
that was there. They all have a little bit different rules.
  If we are going to form a new agency, we ought not diminish the 
President's power because it is going to be difficult enough as it is 
to bring this thing together in a coherent whole.
  I believe the Senator is making a good point. I have listened to the 
debate that has gone on for some time. It seems to me quite clear the 
amendments that have been offered--the objections that have been made 
to your bipartisan bill, the Gramm-Miller bipartisan bill--have been 
designed to diminish the Executive's ability to coordinate quickly that 
new critical agency for our defense.
  I thank the Senator for his leadership on it. I think it is 
important. The President should not allow his office and the office of 
future Presidents to have an even more difficult time than we already 
have with personnel.
  For example, I have had many agency heads come to me and ask me about 
criminal activity by Federal employees. And I would say: Why don't you 
just fire them? They would say: You don't know how hard it is. We have 
a criminal case. Please prosecute this case; otherwise, we will be 
years removing this person.
  It is amazing sometimes for the public to learn how difficult it is 
to manage in a Federal agency. It is far more difficult than private 
agencies. In the end, it hurts good employees of which there are so 
many of them out there. It keeps them from being promoted, and it 
undermines the ability of the agency to be effective.
  I thank the Senator for his courageous leadership.
  (Mrs. CLINTON assumed the chair.)
  Mr. GRAMM. Madam President, let me finish up my remarks because I 
have spoken a long time.

  Although I could give a lot of concrete examples, let me just give a 
couple of them: Under current law, the President has the ability, by 
declaring a national emergency, to change the work rules for the Border 
Patrol. And every President since President Carter has had that power. 
This amendment would take away these emergency powers from the 
President because under a current agreement which the Border Patrol 
operates, there cannot be any prolonged deployment of Border Patrol 
agents in areas that do not have a series of amenities, including 
drycleaners.
  Under existing law, the President would have the ability to declare a 
national emergency and move Border Patrol agents to areas where there 
was a critical threat. He would not have that power under this 
amendment. Let me explain why.
  In order for the President to be able to use his emergency powers, 
the President would have to find, after the Department is created, that 
the position and duties of the person had been materially changed. By 
the way, you guessed it, the first word of the heading on page 14 of 
this amendment is ``Limitation''--``imitation Relating To Positions Or 
Employees''. Who are we limiting here? The President. Every one of 
these headings on limitation represents a limitation of the President's 
power.
  Let me give you an example. A Border Patrol agent is a Border Patrol 
agent, and after the creation of this Department, they will still be a 
Border Patrol agent.
  I asked that the amendment be changed to say that either the function 
had changed or the threat had changed. That proposal has not been 
accepted.
  What it would mean here is that if the President tried to use his 
powers to station a Border Patrol agent, on a prolonged basis, on one 
of the many areas along the border that did not have restaurants, 
churches, or drycleaners, there could not be a waiver to station them 
in that area. Now, I represent more of the border than any other 
Senator besides my colleague from Texas and I know that there are many 
such areas.
  The problem is that while they are doing the same thing, the threat 
is different. Before it was a bale of marijuana or a box of cocaine or 
an illegal alien we were talking about. Today we are talking about an 
anthrax capsule or a chemical weapons vial or a biological agent 
thermos or a nuclear device. But yet, under this amendment, the 
President would not have the power to make that necessary change.
  Our colleagues say a Border Patrol agent is still a Border Patrol 
agent and nothing has changed.
  Madam President, everything has changed. After 9/11, the world has 
changed, but not the thinking of the President's opponents. It has not 
changed.
  So let me sum up by simply pointing out why this amendment is 
unacceptable to the President, why he has said he would veto a bill 
that contained this amendment, and why we can't fight and win the war 
on terrorism with this amendment as part of the law.
  Now, there is no guarantee that we are going to be successful in 
stopping terrorism with a good plan, but General Eisenhower once said: 
A good plan does not guarantee success, but a bad plan does guarantee 
failure.
  This is what this amendment does. It takes away power that every 
President since President Carter has had and used. It sets a higher 
standard for using national security powers in the one agency of 
Government that is designated to protect the homeland security than it 
does any other Department of Government. So OPM would still have the 
same emergency powers that are denied to the President for homeland 
security, but he would not have them here. The whole standard by which 
the President could intervene is changed from national security to 
terrorism.
  We take a system where we in essence say to the President: OK, you 
want these 170,000 people brought together in one agency. We want you 
to give up national security power. If you will give it up, we will put 
together the Department. In other words, we will put it together if we 
can take away your power to actually run it.
  What this amendment would do is allow unions that have only 20,000 
members out of the 170,000 people that will be brought into the agency, 
and it makes them the bargaining agent for all 170,000. We are going to 
hire somebody to fight terrorism. He is going to think he is coming in 
to fight terrorism, and he is immediately going to be in binding 
arbitration. And then, if the unions won't agree to his plan, it goes 
to a labor board that has the historic function of deciding whether a 
department can cancel Christmas parties or the color of uniforms or 
things of that nature. We set up an unworkable system.
  Finally, powers the President says he must have, powers related to 
labor-management relations and appeals, are taken away. So the 
amendment before us is no effort at compromise. I don't doubt the 
goodwill of the people who have offered it. But the plain truth is, it 
is further away from where the President can go than the last time we 
were discussing this issue.
  There has been only one compromise, and that compromise is the Gramm-
Miller substitute which made 25 changes in the President's bill and 
preserved for Congress the power of the purse. It also did restrict the 
President's emergency powers but in ways that made sense. We said the 
President can't be arbitrary and capricious. We said the President 
cannot discriminate on the basis of race, color, creed, national 
origin, and the list goes on. But the bottom line is that we realized 
we were fighting a war against vicious killers and the President needed 
the power to get the job done.
  We need to give the President that power. Our colleagues talk about 
the President using that power. The way it is now restricted, the only 
thing the President can use the power for is to fight terrorism, to put 
the right person in the right place at the right time.

[[Page S9389]]

  My point is, this amendment is not significantly different from the 
underlying bill in that it takes away powers the President already has, 
and it does not give him the flexibility he needs. The President has 
said he would veto it.
  In the end, if we want to get a bill, the logical thing we should do 
is try to reach a compromise. I do not see this as a compromise. I 
don't see anything in it that is a compromise. It takes power away from 
the President he has today. I believe it is totally unacceptable.
  I have given the authors of the amendment, in working with the White 
House, the changes they would have to make for the President to be able 
to accept it. I hope they will consider them. But the problem is, in 
order to give the President the power he needs to fight and win the war 
on terrorism, you have to change business as usual in Washington.
  If there has ever been an amendment that was committed to the status 
quo of business as usual, don't change anything, this is it. The 
amendment and the underlying bill are really based on the premise that 
government is to serve the people who work for the government, not to 
serve the people of this country, and the rights of these workers, as 
we have defined them in a bill that is now over 50 years old in its 
fundamental components. This is the equivalent of operating a horse and 
buggy on an interstate highway. When we are talking about protecting 
the lives of our people and homeland security, this amendment and the 
underlying bill still hew too much to the idea business as usual is 
more important than an effective program to help the President fight 
and win a war on terrorism.

  We are apparently going to have a cloture vote tomorrow. That cloture 
vote is going to fail. It is a gimmick and a game being played to try 
to deny the President the right to have an up-or-down vote on his 
proposal. Our colleagues who oppose the President have every right 
under the rules of the Senate to do what they are doing. I am not 
complaining about it. I am just trying to be sure people understand. If 
they can invoke cloture, they could put the President's program into a 
straitjacket where he does not get a straight up-or-down vote, where 
the first vote will be on this amendment which basically cuts the heart 
out of the President's program so people who oppose the President never 
have to vote up or down on the President's program.
  Our colleagues who oppose the President have the right to do this. I 
am not complaining about it. It is completely within the rules of the 
Senate. But I don't believe under the circumstances it is defensible.
  Basically, those of us who support the President are going to resist. 
We are going to deny cloture, and we are going to continue until the 
President gets an up-or-down vote.
  I don't think this is going to confuse anybody. I know sometime later 
today and probably in the morning, someone is going to stand up and 
say: Well, don't the people who support the President want to bring the 
debate to an end and give the President a vote?
  I don't believe people are going to be deceived. It is easy to give 
the President a vote. All you have to do is to set a time when the 
President's proposal can be voted on. That is all you have to do.
  Under these circumstances, we are not going to let business-as-usual 
practices in the Senate prevail. We are not going to let the President 
be denied an up-or-down vote on his proposal.
  It may be those who oppose the President will be successful. It may 
be they can defeat the President. It may be they can pass a bill the 
President has sworn to veto. It may be they can prevent the President 
from having a Department of Homeland Security in this Congress. They 
may do that. But what they cannot do is deny the President a vote.
  There was earlier a unanimous consent request propounded concerning 
allowing a vote on the pending amendment. So no one is confused, I 
would like to ask unanimous consent that at 11 a.m. on Tuesday, there 
be an up-or-down vote, yes or no, on the President's program, which is 
the Gramm-Miller substitute.
  Mr. LIEBERMAN. Objection.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from Texas retains the floor. Has he given up the floor?
  Mr. GRAMM. I have spoken beyond my limit of knowledge. I yield the 
floor.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. LIEBERMAN. Madam President, while the Senator from Texas is on 
the floor, I want to renew a unanimous consent proposal I made earlier 
when he was off the floor which would give him the up-or-down vote he 
wants on the President's proposal. It is highly unusual. He is asking 
to deprive the Senate of the opportunity to amend. No one is 
infallible, but to give him the offer.
  Madam President, I ask unanimous consent that immediately upon the 
disposition of Senator Nelson's amendment, Senator Gramm be recognized 
to offer a further second-degree amendment, which is the text of the 
President's proposal as contained in amendment No. 4738, and that the 
Senate then vote immediately on his amendment.
  That should give the Senator from Texas what he wants--an up-or-down 
vote on the President's proposal.
  The PRESIDING OFFICER. Is there objection?
  Mr. GRAMM. Reserving the right to object, Madam President, getting to 
amend the President's proposal before he gets a chance to have a vote 
is not giving the President an opportunity for an up-or-down vote. I 
have to object, though I will say we are going to have a vote on the 
President's proposal. Why not set it for 11 o'clock on Tuesday? Let's 
have the vote. If you can defeat the President, then you will make many 
special interests in Washington happy. If you cannot, we will have a 
bill. But at least we will settle the issue.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. LIEBERMAN. So my question back to the Senator from Texas is why 
deprive the Senator from Nebraska and the Senator from Rhode Island and 
the Senator from Louisiana the opportunity to have a vote on their 
amendment?
  Mr. GRAMM. If the Senator will yield, I will respond. Madam 
President, it is obvious to a blind man that there have to be some 
people on the side of the aisle of the Senator from Connecticut who do 
not want to vote against the President's homeland security bill, and if 
you can amend it first with an amendment confusing people as to what 
you are really doing, then they are off the hook. You all are not doing 
this because it is fun. Obviously, you have your plan in mind. I have 
mine.
  The PRESIDING OFFICER. Is the Senator from Texas objecting?
  Mr. GRAMM. I object.
  Mr. LIEBERMAN. Madam President, does the Senator from Texas 
understand that under the unanimous consent request I have proposed the 
vote would be on the President's proposal, the Gramm-Miller substitute, 
unamended, second degree?
  Mr. GRAMM. Madam President, I have a lot of problems, but one of them 
is not not understanding. I understand perfectly that if people could 
be convinced--there is no sense getting into the details. I think we 
have overdone it. The President wants an up-or-down vote on his bill, 
and we are going to hold out for that vote. If you can defeat the 
President, you have defeated the President. But we want an up-or-down 
vote, and the way we have things structured in a parliamentary sense, 
you would have to get cloture on their amendment to vote on it, and you 
are not going to be able to get it.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. LIEBERMAN. Madam President, I regret the objection of the Senator 
from Texas, and I fear what it reflects is an understanding that, 
primarily because of the courage of the Senator from Rhode Island, Mr. 
Chafee, who has created a common ground compromise preserving the 
President's national security powers and giving some, frankly, minimal 
due process to homeland security workers, that our friends on the other 
side do not have the votes anymore because they do not have the votes. 
They are going to filibuster effectively the adoption of a homeland 
security bill as amended by the Nelson-Chafee-Breaux amendment.

[[Page S9390]]

  The Senator from Texas himself has said that 95 percent of his 
proposal is the same as our underlying committee proposal. The biggest 
difference between us is with regard to the rights of the homeland 
security workers and the right of the President to maintain national 
security powers. This compromise does it. I am disappointed--
  Mr. GRAMM. Will the Senator yield so I can agree with him?
  Mr. LIEBERMAN.--and I fear the White House is now blocking the early 
adoption by the Senate of legislation that would create a Department of 
Homeland Security.
  Mr. GRAMM. Will the Senator yield?
  Mr. LIEBERMAN. I will, for a question.
  Mr. GRAMM. It is true our bills are 95 percent the same. It is like 
you are giving the President this nice, new, shiny truck, only yours 
does not have a steering wheel. That is the fundamental difference. 
There is only 5 percent. It is like the plane that does not have the 
bolt that holds the tail on. That is the fundamental difference.
  Look, we are not holding it up. We are ready to vote. Set the vote 
for Tuesday. Let's have an up-or-down vote and see where we are.
  Mr. LIEBERMAN. Madam President, in responding to the Senator, the 
vehicle that we would give the President has a great steering wheel. 
About the only thing that is probably changed is the color of the 
plastic on the rear lights. The differences, as elucidated in previous 
debate, are so minimal as to certainly be not worth blocking the 
creation of a Department of Homeland Security which is urgently needed 
because the terrorists are still out there.
  I see my friend from Nebraska on the floor. He is a lead sponsor of 
the amendment. He has been waiting a while to speak. I will yield the 
floor.
  The PRESIDING OFFICER. The Senator from Nebraska.
  Mr. NELSON of Nebraska. Madam President, the Senator from Texas has 
made a number of points that I think I will try to respond to as 
briefly as I possibly can but at the same time respond to the 
suggestions.
  First of all, I am new to this Washington-style posturing and spin 
doctoring, but I think I am getting the hang of it--maybe slowly, but I 
am beginning to get the hang of it.
  I agree that we are not entitled to our own set of facts. We may have 
interpretations, we may even have our own thoughts about a set of 
facts, but we are not entitled to characterize those facts differently 
just because we choose.
  When one looks at a letter or a statement, the statement and/or the 
letter will speak for itself. I ask unanimous consent to print in the 
Record a letter from Governor Ridge, dated September 5, 2002, to 
Senator Lieberman in which he says:

       . . . the President seeks for this new Department the same 
     management prerogatives that Congress has provided other 
     departments. . . .
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                              The White House,

                                    Washington, September 5, 2002.
     Senator Joseph I. Lieberman,
     Chairman, Senate Governmental Affairs Committee, U.S. Senate, 
         Washington, DC.
       Dear Senator Lieberman: During the past several months you 
     and I have engaged in both public advocacy and private 
     efforts to create a Department of Homeland Security. I have 
     read your article in Tuesday's Washington Post and would like 
     to respond to some of the observations and conclusions. You 
     and I agree that the events of September 11, 2001 tragically 
     underscore the critical need to reorganize a significant 
     portion of the Executive Branch of government and to create a 
     Department whose primary responsibility is securing the 
     homeland. I certainly agree with your observation that never 
     before has there been government ``disorganization so 
     consequential and the case for change so compelling.''
       It is critical to our mutual effort however, to do more 
     than simply realign the many departments and agencies 
     included in the Senate measure under one new Cabinet-level 
     department. This new department must be equipped with the 
     flexibility and agility to respond effectively to threats 
     against this country and to move people and resources in 
     response to those threats. The President has made it clear 
     that the bill as presently written fails to achieve these 
     critical objectives in several ways.
       In your article you refer to the President's concerns with 
     your bill as ``detours,'' ``secondary'' issues, and 
     ``unnecessary roadblocks.'' I am at a loss to understand why 
     the President's insistence that, as Commander-in-Chief, he be 
     the final arbiter of this country's national security 
     interests is a ``detour'' in this debate. Similarly, I am 
     puzzled as to why his resolve that his new Secretary be given 
     the flexibility to move people and resources in response to 
     terrorist threats is being characterized as a ``secondary'' 
     issue. In fact these very issues are critical to the success 
     of this new Department.
       The Administration believes that the new Secretary must 
     have the freedom to put the right people in the right job, at 
     the right time, and to hold them accountable. He or she must 
     have the freedom to manage and the freedom to reorganize. One 
     of the inescapable truths of this new war on terrorism is 
     that we know that we cannot conduct ``business as usual.'' I 
     was surprised at your assertion that ``the president's pleas 
     for additional `flexibility' would give his administration 
     unprecedented power to undercut the civil service system, 
     rewrite laws by fiat and spend taxpayers' money without 
     congressional checks and balances.'' This is simply 
     inaccurate. Senator, the President seeks for this new 
     Department the same management prerogatives that Congress has 
     provided other departments and agencies throughout the 
     Executive Branch. For example: budget transfer authority 
     ranging from one to seven percent is granted in various 
     forms to several departments, including the Department of 
     Health and Human Services, the Department of Agriculture, 
     and the Department of Energy; reorganization authority was 
     granted with the establishment of the Department of Energy 
     and Education and government-wide reorganization authority 
     was previously enjoyed by every President until 1984; and, 
     personnel flexibility is currently enjoyed by the Federal 
     Aviation Administration, the Internal Revenue Service, and 
     the Transportation Security Administration.
       Furthermore, the new Department of Homeland Security, as 
     well as its new Secretary, will be fully accountable to 
     Congress and subject to especially intensive reporting 
     requirements and Congressional oversight.
       Your conclusion that ``the President and the Secretary of 
     Homeland Security would, in fact, have more flexibility to 
     run an efficient, effective and performance-driven department 
     than the law now provides'' is contrary to the literal 
     language of the bill itself. As written the Senate bill 
     places severe restrictions on the Secretary's ability to 
     manage the Department and fails to provide the authority that 
     the Secretary needs to effectively secure the homeland. 
     Through a variety of separate provisions, the Senate 
     legislation clearly prohibits the new Secretary from 
     reorganizing, reallocating or delegating most of the agency 
     functions in the new Department. It would preclude, for 
     example, even the most basic consolidation of Federal 
     inspectors at our border entry.
       Moreover, the idea that ``With the powers in existing law 
     and new ones added in our bill, the administration would be 
     able to promptly hire new talent, swiftly move employees 
     around, discipline and fire poor performers'' is seriously 
     misleading. While the Senate bill introduces very narrow 
     changes to the personnel system, such modest reforms and 
     corrections are woefully inadequate to meet the President's 
     basic goal of creating a workforce at the Department of 
     Homeland Security with the flexibility, mobility, and agility 
     needed to protect our nation from multiple and constantly 
     changing threats. In fact, the Senate bill leaves in place a 
     50-year-old, rigid, statutorily mandated, and unalterable 
     personnel system. This kind of organizational rigidity in the 
     face of an agile and aggressive enemy is unacceptable to the 
     Administration.
       Your op-ed also mistakenly claims that the Senate bill 
     would allow the President to ``remove employees from 
     collective bargaining units when national security is at 
     stake.'' In fact, the Committee proposal includes language on 
     Federal Labor Relations which would significantly restrict 
     the President's existing, government-wide authority to 
     prohibit collective bargaining for reasons of national 
     security. The bill would in effect deny the President this 
     authority over the Department of Homeland Security--an 
     illogical result given that the President will continue to 
     have the authority for every other department and agency of 
     the Federal government. As every President since Jimmy Carter 
     has shown, there are times where the needs of national 
     security must take precedence over collective bargaining. 
     Each of these Presidents--both Democrats and Republicans--has 
     used this authority precisely and with restraint. It is 
     unfathomable--and again simply unacceptable--that the Senate 
     would choose a time of war to weaken the President's 
     authority to protect national security.
       While we continue to have considerable substantive 
     disagreements with the measure presently before the Senate, 
     as you begin the debate to establish the Department of 
     Homeland Security, we must keep in mind the common goal of an 
     accountable, effective agency with the resources and 
     authorities necessary to protect the American people. At the 
     end of the day, we must resolve out differences to reflect 
     our mutual obligation to protect our special interest--
     America.
           With Respect,
                                               Governor Tom Ridge,
                                        Homeland Security Advisor.

  Mr. NELSON of Nebraska. Madam President, he points out the Internal 
Revenue Service, which is exactly what we have included in this 
amendment, hardly opposing the President unless, Heaven forbid, 
Director Ridge opposes the President. He suggested it.

[[Page S9391]]

  Then, Madam President, I do not need to enter--it is already a matter 
of record--the remarks of the good Senator from Texas in which he 
suggested that the current situation might be remedied by including the 
IRS formula that was included in the reorganization of the IRS.
  I would not suggest for a minute that he opposes the President.
  We have had some explanations or recharacterizations of what these 
documents mean. The recharacterization does not change the language, 
does not change the meaning, but now what seems to have changed is the 
goalposts have been moved, the rules have been changed, and now in good 
faith we proposed what we thought the White House and others, who were 
suggesting we ought to do it differently, we thought, what they were 
asking for.
  As with mischaracterizations, I think anybody today watching us would 
feel as if they have been watching a little bit of ``Alice in 
Wonderland.'' This is the only place I can imagine where if you have an 
amendment, you are an opponent of the President. I am not an opponent 
of the President. I do not oppose the President. I am here trying to 
find a way to close the gap.
  I would like to find the steering wheel for the car of the good 
Senator from Texas so that it is 100 percent complete, not 95 percent 
complete, as the example he gave before.
  I am intrigued by mischaracterization, but I am not persuaded by it, 
and nor will my colleagues be persuaded by it as well.
  The Senator from Texas referred to page 12 of our amendment and read 
from it the language he said was now taking away authority of the 
President. The title is: ``Limitation on Exclusionary Authority.'' He 
says we are excluding the President's authority. The truth is, this is 
just a reference to existing law, and it has to have some sort of a 
heading.

  Let's move away from the heading and see what this particular 
provision does. It says no agency that is transferred to the Department 
will be excluded from the coverage of chapter 71 of title 5, United 
States Code 7103(b)(1).
  What does that have reference to? The President's authority. It says 
the agency will not be exempt from the President's authority.
  What is that President's authority this has reference to? It says 
that the President may issue an order excluding any agency or 
subdivision thereof from coverage under this chapter if the President 
determines the agency or subdivision has as their primary function 
intelligence, counterintelligence, investigative or national security 
work, and the provisions of this chapter cannot be applied to that 
agency or subdivision in a manner consistent with national security 
requirements and considerations.
  It also says that the President may issue an order suspending any 
provision of the chapter or activity if somebody is located outside of 
the United States and the District of Columbia. The truth is, this 
reference incorporates the President's current authority. It does not 
exclude it. It does not change it. It does not limit it.
  What I agree with, which the Senator does point out, is it does then 
set some additional tests the President ought to apply in making a 
determination. That is not limiting authority. That is saying these are 
the tests that ought to be considered and have to be considered before 
the order is issued. The President has the same authority as before, 
but now it has a reference to dealing with there being a material 
change in the responsibility.
  The good Senator has also made a suggestion maybe we ought to look at 
wording that says ``or the threats have changed.'' When the good 
Senator suggests a change to the existing law, he is not opposing the 
President, but when we make a suggestion, we are opposing. I think we 
have to use the same terminology and say we are both trying to improve 
the existing situation.
  If the Senator from Texas makes a suggestion we add language, I am 
not going to suggest he is opposing the President. I am not even going 
to suggest he is opposing me. He is trying to make something he 
disagrees with better, but it does not make us opponents.
  What we have heard today is a lot of discussion with a lot of 
hyperbole and changing the rules as we go along. Of course, I think 
anybody watching from the outside looking in will not be misled by this 
kind of spin-doctoring or this kind of labeling.
  My hope is we can set aside partisan discussions and talk about the 
essence of what it is we are about. What we are about is finding a way 
to close the gap.
  I have said to the Senator from Texas, and I say it again, if there 
is language--and we are looking at his suggestion there--that will make 
this clearer and stronger, we are very much in favor of considering 
that. But I do not think it will make either of us opponents of the 
President if we agree on that language, which is different from the 
current Gramm-Miller bill that is referred to as the President's bill.
  So I think we must, in fact, put aside who is opposing and let us 
start talking about how we can amend, improve and close the gap so the 
good Senator's car will have its steering wheel and he can drive 
forward.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. REID. Will the Senator yield for a question?
  Mr. NICKLES. Yes.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. I had a brief conversation privately with the Senator from 
Oklahoma, and while the Senator from Texas is in the Chamber, I say we 
have a vote scheduled for 3:45 this afternoon. It would seem to me the 
most logical and sensible thing to do, since we have been told by 
several people on the other side of the aisle we are not going to get 
cloture tomorrow when we vote an hour after we come in, instead of 
having the vote at 3:45 on the cloture that is now set we should have 
it on the amendment the Senator from Texas said we will not get cloture 
on, which makes more sense.
  If we are not going to get it tomorrow, it would seem it would be in 
everyone's best interest, with all the things going on in Washington 
tomorrow, we have the vote today and allow people who are concerned 
about some of the things that might take place tomorrow in the District 
to be able to go to their home in the suburbs or in the District or 
back to the States.
  If the Senator is right that we will not get cloture--and if, in 
fact, we did get cloture, it would allow a lot of people not to be here 
because the 30 hours runs and, of course, we have one hour at a pop. I 
am not going to formally ask at this time, but I ask the distinguished 
Republican assistant leader to see what he could do about working that 
out. It seems to me it would be in the best interest of the Senate and 
it would be in the best interest of those we are trying to work to some 
finality in this bill.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. NICKLES. Madam President, I will be happy to work with him on 
trying to schedule things that are convenient for all colleagues.
  I rise today to make a few comments I really wish I did not have to 
make. Yesterday, the majority leader of the Senate made a very strong, 
impassioned speech. I missed most of it, but I caught a lot of it last 
night on ``Nightline.'' I caught a transcript of it and then I saw it 
again. I will read part of it. Senator Daschle said: I can't believe 
any President or administration would politicize the war. But then I 
read in the paper this morning, now even the President, the President 
is quoted in the Washington Post this morning as saying that the 
Democratic--the Democratic-controlled Senate is not interested in the 
security of the American people.
  Senator Daschle was reading from The Washington Post. Unfortunately, 
though, he did not quote The Washington Post correctly and he certainly 
did not quote the President of the United States correctly.
  It is a very strong accusation saying the President of the United 
States would politicize the war and he quotes the President of the 
United States, but he quoted the President of the United States 
inaccurately.
  One, we should keep politics off the floor of the Senate, 
particularly when we are talking about issues of very significant 
importance such as war, war resolutions, or a resolution dealing with 
Iraq, which has been a troublesome spot for the United States. We have 
had several debates and discussions on Iraq. We should not be playing

[[Page S9392]]

partisan politics. I do not think we should be attacking the President 
of the United States on a quote in the Washington Post, which may or 
may not be accurate. The way it was stated by Senator Daschle was 
inaccurate, and I will read the President's quote from the Washington 
Post which was alluded to, and then I will again read Senator Daschle's 
quote and we will see directly they are not the same.

  What the President said when he was in New Jersey on September 24 
was:

       So I asked the Congress to give me the flexibility 
     necessary to be able to deal with the true threats of the 
     21st century by being able to move the right people to the 
     right place at the right time, so we can better assure 
     America we're doing everything possible. The House responded, 
     but the Senate is more interested in special interests in 
     Washington and not interested in the security of the American 
     people. I will not accept a Department of Homeland Security 
     that does not allow this President, and future Presidents, to 
     better keep the American people secure.

  The President goes on to say:

       And people are working hard in Washington to get it right 
     in Washington, both Republicans and Democrats. See, this 
     isn't a partisan issue. This is an American issue. This is an 
     issue which is vital to our future. It'll help us determine 
     how secure we'll be. Senator Gramm, a Republican, Senator 
     Miller, a Democrat, are working hard to bring people 
     together. And the Senate must listen to them.

  That is what the President said, and to take out of that a statement 
that says the Democratic-controlled Senate is not interested in the 
security of the American people, is not what the President said. If 
someone is making a statement that receives a lot of attention, there 
must have been notification to the press this is going to be a very 
important statement, and to make a statement misquoting the President 
of the United States on an issue like this and accuse him of 
politicizing the war, when the issue was homeland security, I think is 
a real injustice to the President of the United States and to the 
quality and flavor of debate we should be having in the Senate.
  We should not be politicizing a debate dealing with war and talking 
about international repercussions. And there are repercussions when we 
make speeches, particularly when the Democrat leader makes a speech. I 
cannot help but think the headlines that came out as a result of his 
speech brought about some comfort for those who really oppose the 
United States policies or those who are opposed to formulating an 
international coalition the administration is presently trying to put 
together in the United Nations, in Europe, and in the Middle East.
  This President, like his father, was trying to build an international 
coalition. I can't help but think when they read that the Democrat 
leader of the Senate is accusing the President of politicizing the war 
and misquoting the President, that gives them a lot of ammo. That gives 
them a lot of justification for Saddam Hussein or others to say: See, I 
told you they are just politicizing this war. They want to do this for 
political purposes, when that was not what the President said.
  Again, when I first heard of this I thought, well, let me find out 
what the President said. I am a friend of the President's. I am willing 
to defend him, but I wanted to see what he had to say. I know the 
President very well and I said, I can't believe he would say Senate 
Democrats are not concerned about national security because that is not 
factual.
  But then when I read these comments, not only did he not say it, he 
didn't say anything close to it. Then in the next sentence down he 
said:

       And people are working hard in Washington to get it right 
     in Washington, both Republicans and Democrats.

  I wish Senator Daschle would have read that. I wish he would have 
read that he compliments both Senator Gramm, a Republican, and Senator 
Miller, a Democrat, and he never once said what was said on the floor 
yesterday. He never once said Senate Democrats are not interested in 
national security. He didn't say it. But that was the attack that was 
made yesterday.
  I just think of the international repercussions, and I am thinking of 
this enormous challenge to build an international coalition, one that 
President Bush 1 was able to do in 1990 and 1991, an enormous 
coalition, but it was not easy to build. It is a coalition, I might 
mention, that was put together, and very successfully, in 1991, that 
dissipated over the next 8 years and is now gone. So President Bush, 
this President Bush at the present time, is trying to rebuild the 
coalition. Then to be attacked by the majority leader, misquoting him, 
I think is very inappropriate.
  I also wish to make a comment about Vice President Gore.
  Before I do that, I want to read another. The President made two 
speeches. I scanned both. I didn't want to misstate what the President 
said. I like to be factually accurate. If I ever misquote anybody, it 
will be a mistake.
  So I read the President's speech that he made at another event. This 
goes to the same subject. I believe this was made on September 25th.

       Right now in the Senate the Senate feels like they want to 
     micromanage the process, not all Senators but some Senators. 
     They feel they have to have a pile of books this thick that 
     will hamstring future administrations how to protect our 
     homeland. I am not going to stand for it.
       I appreciate John's vote on a good homeland security bill. 
     And the Senate must hear this, because the American people 
     understand it. They should not respond to special interests--
     they ought to respond to this interest: protecting the 
     American people from a future attack.

  Again, he didn't say anything about the Democrat Senate not 
supporting national security.
  But there was a real political statement made the other day. That was 
by former Vice President Al Gore. Again, I would like to think that 
Presidents and former Presidents and former Vice Presidents wouldn't 
undercut the existing President and Vice President on the floor--while 
they are trying to build coalitions. That is exactly what the former 
Vice President did. Former Vice President Gore, in speaking to, a group 
of Democrats or a group of people in San Francisco, had a lot of 
outlandish things to say.

  I read--well, he is trying to garner support from the political left 
or right, and I guess he has that right to do so. But I would think he 
would have the dignity to try to maintain the dignity of the Office of 
Vice President and not undermine an existing administration that has a 
difficult challenge to try to rebuild a coalition. This is one of the 
things Vice President Gore said on September 23:

       To begin with, to put things first, I believe we ought to 
     be focusing on efforts first and foremost against those who 
     attacked us on September 11 and who have thus far gotten away 
     with it.

  For Vice President Gore to say that is grossly irresponsible, and is 
very inconsistent, I might say, with some of the things he had to say 
in the past.
  It is very troubling to me, when I look at the previous 
administration and what they did or didn't do in response to previous 
acts of terrorism, for him to be blaming this administration for not 
being aggressive enough in fighting the war on terrorism, and I see 
terrorist attacks that happened during Vice President Gore's 
administration, President Clinton's administration, and I look at the 
response they had against terrorism and I say, Where is it?
  For him to be critical of this President when this President has made 
an aggressive effort to combat terrorism and basically eliminating it--
going into Afghanistan, helped in liberating the Afghan people, 
dispersing al-Qaida, going after and rounding up and killing hundreds 
of terrorists--for the Vice President to be critical of this 
administration is mind-boggling.
  I remember when the U.S. Embassies were bombed in Kenya and Tanzania 
on August 7, 1998; 224 people were killed, including 12 Americans, 
almost all of those were employees of the United States. Five thousand 
people were wounded.
  And what did we do? Well, we lobbed a few cruise missiles hoping 
maybe we would get Bin Laden and then we didn't do anything else. That 
was in August of 1998. Yet we didn't do anything, after that for the 
next couple of years; the previous administration did nothing.
  And then the U.S.S. Cole was attacked on October 12, the year 2000; 
17 U.S. sailors were killed; 39 were wounded. The entire ship could 
have sunk.
  What did we do? Nothing.
  President Clinton said:

       If, as it now appears this was an act of terrorism, it was 
     a despicable and cowardly act. We will find out who was 
     responsible and

[[Page S9393]]

     hold them accountable. If their intention was to deter us 
     from our mission in promoting peace and security in the 
     Middle East, they will fail utterly.

  President Clinton, as a result of the bombings of the U.S. Embassies, 
on August 7 of 1998 said:

       These acts of terrorist violence are abhorrent. They are 
     inhuman. We will use all the means at our disposal to bring 
     those responsible to justice no matter what or how long it 
     takes.

  That was President Clinton's remarks, and I would assume Vice 
President Gore would agree with those remarks, but we didn't do 
anything. And we didn't follow up. We did lob a few cruise missiles, 
but we didn't stay after Bin Laden. We could have. We could have sent 
some special forces. We could have sent some airplanes over there. We 
could have been very aggressive in trying to hunt down the people who 
killed hundreds of people in those two attacks, but we didn't do it. We 
flat didn't do it. As a result, some of the people who planned those 
two activities also planned and carried out the airplane bombings in 
the World Trade Center and the Pentagon and in the fields of 
Pennsylvania--probably headed towards the Capitol--because we didn't 
follow up. We didn't pursue them as aggressively as we should have in 
1998, 1999, 2000.

  Then to have the former Vice President be critical of this 
administration, that has moved aggressively to combat terrorism and go 
after the terrorism--I am very troubled by that. Very troubled by it, 
indeed. We are all entitled to our opinions. We are all entitled to 
state what we think should be done. But I happen to be one who believes 
that when you are in a war, you should be working together and not try 
to undermine the President of the United States.
  I am afraid, as a result of both the comments that were made by the 
majority leader and the comments that were made by the former Vice 
President, I think it does undermine our united efforts to combat 
terrorism and to go after those people who are directly responsible.
  Finally, I want to make a couple of other comments. In dealing with 
the bill we have before us, Senator Gramm has mentioned that he has an 
amendment, supported by the President, endorsed by Senator Miller. I 
compliment them for their work on this issue. Unfortunately, the 
amendment tree is filled. I don't want to get too bogged down in the 
parliamentary jargon, but I am looking at this tree. I want to read a 
quote Senator Daschle once said in June. He said:

       I announced at the very beginning of my tenure as majority 
     leader I will never fill the tree to preclude amendments. I 
     am going to hold to that promise.

  That was made on June 10. I happen to be one who doesn't like filling 
the tree, either. But this tree is filled and why is it filled? It is 
to deny people a vote, the Senator from Texas and Georgia having a 
right to a vote on their amendments next. They want to obscure it so we 
vote on other amendments first.
  Then the issue of cloture--we are going to have a vote tonight or we 
are going to have a vote tomorrow. Well, the purpose of cloture is to 
deny them the vote and it is to falsely allude to--maybe people on this 
side of the aisle are filling the tree, which is false. We are not 
filibustering the Interior bill.
  I said that several times, and I happen to consider myself a person 
of my word. I will let you know if I am filibustering a bill. The 
Senator from Nevada knows me pretty well. I will let him know if I am 
filibustering a bill. He will know it. No one is filibustering this 
bill. Well, ``We are going to file cloture.'' They know they have to 
get 60 votes for cloture. They won't have it today and they won't have 
it tomorrow.
  The Senators from Texas and Georgia introduced the President's 
package. It has been modified to accommodate a lot of Senators and to 
make sure we don't have anything that would be intrusive against public 
employees. It has a lot of protections in it. It is a well-thought-out 
amendment and is very similar to many of the adoptions made in the 
House of Representatives. They are entitled to their vote. Will cloture 
deny them that opportunity? This amendment would not be germane 
postcloture. It would fall.
  I have said repeatedly that they are entitled to their vote, and they 
are going to get their vote.
  I urge my colleagues, we could do a lot better in legislating if we 
didn't fill trees, if we didn't file cloture every other day, and if we 
worked together to come up with a reasonable alternative to allow 
people to vote on this alternative, to vote on the Gramm-Miller 
alternative, to vote on other alternatives and be finished with the 
bill.
  The same thing with the Interior bill--if we had a vote on the 
various proposals dealing with fire. Let us vote. That is what we are 
paid to do. Let us vote. I urge my colleagues, let us not use the floor 
of the Senate to be accusing this President of politicizing the war; 
the Vice President as well. I think that undermines the Senate and is 
not worthy of debate in the Senate.
  Mr. BYRD. Madam President, will the Senator yield?
  Mr. NICKLES. I would be happy to yield.
  Mr. BYRD. I just want to say this: I agree with what the Senator said 
in respect to the appropriations bills. We had this talk--those of us 
who agreed on appropriations bills. He is ready to vote on them. So am 
I.
  I hope the leadership will attempt to get some of the other 
appropriations bills up. Let us see who is holding up appropriations 
bills. We have to do the Health and Human Services bill. We have that. 
We have all of these bills backed up, and not a single one of the 13 
appropriations bills has been sent to the Senate.
  I thank the Senator for making that point. He is ready. Let us vote 
on those bills.
  Mr. NICKLES. I appreciate the chairman of the Appropriations 
Committee. I do know that when we have appropriations we have disputes 
on amendments. The way to dispose of those amendments is not to file 
cloture because it won't work. The way to dispose of those amendments 
is to, if you do not like it, move to table it, or accept it. Maybe you 
accept it, or drop it. But you deal with the amendment.
  I am embarrassed that we have been on two bills for 4 weeks and we 
have made so little progress. We have spent the entire month of 
September, and the end of the fiscal year is next month, and we haven't 
passed one appropriations bill this month.--not one. We have only had 
three or four votes on each bill--both the Interior bill and the 
homeland security bill. That is pretty pathetic progress.
  As a result, we have only passed three appropriations bills out of 
the Senate. It is maybe one of the worst records we have had in a long 
time. That is not acceptable.
  I can't help but think if the majority or minority would get together 
and say let us bring up these bills, move them quickly; let us table 
nongermane amendments; let us get our work done; that it would help 
make the process work a lot better.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Madam President, I, as every Senator who serves here, came 
to the Senate for the purpose of being a public servant and to try to 
do things that help our respective States and the country. That is why 
we are here. People at home, in many instances, are somewhat jaundiced 
of the process. They think things we do here are political in nature 
and in the negative sense, and that we are really not here for the good 
of the country. I don't want to believe that. But there were times when 
even I became suspect about what is going on here.
  Tom Daschle, the majority leader of the Senate, came to the floor 
twice yesterday. He was concerned because blazed across the country in 
the newspapers is something that has not been said once, but during the 
last month the President of the United States has said on six different 
occasions--four times at fundraisers--that the Senate--specifically on 
occasion Senate Democrats--weren't concerned about national security.
  Mr. NICKLES. Will the Senator yield?
  Mr. REID. I yield for a question.
  Mr. NICKLES. I just want to correct the record and say I have 
scrutinized the President's speech. And I have never seen where this 
quote--I just gave it to the clerk--this quote comes from Monday. I 
looked at the President's speech. I have the President's speech. I will 
enter it into the Record.

[[Page S9394]]

But it did not say the Democratic-controlled Senate is not interested 
in the security of the people.
  Again, we have to be factually accurate. If we are going to quote the 
President of the United States and accuse him of politicizing the war, 
let us have an accurate quote. You can't take only part of a newspaper, 
the part that says the Democrat Senate--I guess what was not in quotes. 
But it was read on the floor like it was quotes; like it was a direct 
quote from the President. The President did not say that. Even the 
Washington Post didn't say it. You can't say, well, the Washington Post 
had it wrong; that the Washington Post inferred that he meant the 
Democrat Senate. But that is not what he said.
  When it is something of this significance, when it has international 
repercussions, and when it can undermine our efforts in trying to get 
countries such as Egypt, Jordan, Germany, Italy, and others to be on 
our side; to say the President said the Democratic-controlled Senate is 
not interested in national security, when he didn't say it, is a real 
injustice.
  Mr. REID. Folks listen. Listen. Six times within the past month--four 
times at fundraisers--the President said the same thing.
  When the majority leader came to the floor, he said a number of 
things.
  First of all, he quoted correctly that at a fundraiser, Dowd, one of 
the Republican pollsters, was quoted, and I quote:

       Number-one driver for our base motivationally is this war.

  Then, of course, we go to Karl Rove. Karl Rove, prior to the 
President being elected, no one knew who he was. We in Nevada knew him 
because he is from Nevada. But now everybody knows Karl Rove because he 
is known as the President's closest confidant. Of course, in June a 
floppy disk was found at Lafayette Park, right across from the White 
House. No one has denied that Karl Rove said what was on this floppy 
disk. Basically, it said focus on the war. There is the key point that 
should be centered on White House desire to maintain a positive issue 
environment. That positive issue environment is focus on the war and 
not on the stumbling economy.

  Then we go to Andrew Card. Andrew Card said from a marketing point of 
view, you don't introduce new products in August.
  Then we have the Vice President, and then we have the President. OK. 
Now.
  Mr. NICKLES. Will the Senator yield?
  Mr. REID. No. I will not.
  Today, the Republican National Committee--of course, who leads the 
Republican National Committee? It is the President of the United 
States. Just like when we have a Democratic President, he is the leader 
of the Democratic National Committee. We have e-mail now. For some 
people, e-mail is not what we are used to. But we have an e-mail. Who 
was this e-mail sent to? It was sent to GOP team leaders. And it also 
gives you information if you want to become a GOP team leader. Who do 
you get to become one? We know how. Money.
  What does this say? Maybe this is what this is all about--
fundraising; seeing if they can raise some more money for the midterm 
elections.

       Tell Your Senators to support President Bush's Homeland 
     Security. Democrat Senators Put Special Interests Over 
     Security.

  Among other things, this said the Senate is more interested in 
special interests in Washington and not the security of the American 
people.
  It goes on to say.

       This bipartisan approach is stalled in the Senate because 
     some Senate Democrats have chosen to put special interest, 
     Federal Government employee unions, over the security of the 
     American people.

  Mr. NICKLES. Will the Senator yield?
  Mr. REID. I will not yield until I finish. Just be patient.
  Madam President, this is what it is all about--raising money for the 
midterm elections and accusing me of being not for the interests of 
this Nation.
  I was the first Democrat to publicly support this President's father. 
I came to this floor right here--first Democrat--to say go to Iraq and 
do what you have to do. And to accuse me of not being for the Nation's 
security--as Senator Daschle pointed out, back here is a man who is 
missing an arm that was blown off when he was in the Second World War. 
As he said, he was a very young man. Max Cleland came in. He has one 
arm. He is missing both legs and an arm. He is not for the security of 
this Nation?
  Talk to Fritz Hollings, a man nearly 80 years old, who was in World 
War II as an officer and fought in combat.
  Danny Akaka. Now, most of us here don't have Congressional Medals of 
Honor like Dan Inouye has. And let us not forget John Kerry and Tom 
Carper. But vicariously I have served in the Senate and the House of 
Representatives trying to do what I could to have this a secure nation. 
And to have anyone accuse me of not being for a secure nation is 
accusing me of not being patriotic. That is not right.
  They can accuse me of being too liberal on an issue, too conservative 
on an issue, being a big spender, not spending enough, but don't accuse 
me--I didn't come back here to be called names. That is what I am being 
called.
  Now, you can criticize Tom Daschle all you want, but, remember, the 
American people know he is right. You can't do what has been done.
  We want to pass homeland security. This is a good man, Senator 
Lieberman. He is one of the most conservative people we have in the 
Democratic caucus. He started working on this bill before September 11. 
Does he not want this bill? Of course he wants this bill.
  We are being told we can't have cloture. Why did we file cloture? 
Because for 4 weeks we have been trying to pass a bill for this 
President, whose chairman of the Republican National Committee is 
sending out this trash.
  So I think we should debate the issues. I am proud of Tom Daschle for 
standing up and bringing attention to what is going on.
  What is going on? That the No. 1 driver for the Republicans is the 
war. It should not be.
  The PRESIDING OFFICER (Mr. CARPER). The Senator from Oklahoma.
  Mr. NICKLES. Mr. President, I will just repeat to my colleague, you 
may find a quote from the RNC, and I am sure we could finds things from 
the Democratic National Committee to be quite partisan. What I stated 
was that the President did not state what was alluded to yesterday on 
the floor when the majority leader said that, quote: the Democratic 
Senate is not interested in the security of the American people.
  That is what he said. I am just saying, quite frankly, the President 
of the United States did not say it. I reviewed the entire speech.
  I ask unanimous consent to have that speech printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                   President Calls on Congress to Act

     Army National Guard Aviation Support Facility, Trenton, NJ, 
         September 23, 2002
       The President: Thanks a lot for coming out this morning. It 
     is my honor to be--it is my honor to be back in New Jersey. I 
     want to thank you all for coming out. I want to thank the 
     people of the New Jersey Army and Air National Guard for your 
     hospitality. (Applause.) I'm here to talk about how best to 
     make America a stronger country, a safer country, and a 
     better country for all of us.
       There is an old bridge over the Delaware River that says: 
     Trenton makes, the world takes. (Applause.) It talks about 
     the work ethic of the people of this part of our country, it 
     talks about the creativity, it talks about the true strength 
     of America. The true strength of America are our fellow 
     citizens. The strength of our country is the people of 
     America. And I'm honored to be with such hardworking people. 
     (Applause.)
       Congress can help. Congress needs to work hard before they 
     go home. Congress needs to get some things done, which means 
     a homeland security department, a budget that reflects our 
     priorities. They've got to make sure they don't overspend 
     your money. They've got to remember, everything they do must 
     go to make sure America is a stronger and safer and better 
     place. (Applause.)
       I want to thank Brigadier General Glenn Rieth for opening 
     up this hangar and for inviting me to this base. I want to 
     thank all the Guard personnel who serve the United States of 
     America. I want to thank you for your service, I want to 
     thank you for your sacrifice. (Applause.) I want to thank 
     your governor for being here today. I appreciate Governor 
     McGreevey being at the steps of Air Force One. I'm thankful 
     for his hospitality. I appreciate him coming to say, hello, 
     and I'm honored he's here today to hear this speech. 
     Governor, thank you for coming.
       I appreciate members of the congressional delegation. 
     Congressmen Ferguson, Saxton and Smith from New Jersey, thank 
     you all

[[Page S9395]]

     for being here. (Applause.) I want to thank Bob Prunetti who 
     is the Mercer County Executive, for greeting me here, as 
     well. And I want to thank you all for coming.
       Here's what's on my mind: I want our people to work here in 
     America. Any time somebody who wants to work can't find a 
     job, it means we've got a problem in this country. And we 
     will not rest until people can find work. A stronger America 
     means a strong economy. A stronger country means that our 
     good, hardworking Americans are able to put food on the table 
     for their families.
       Now, we're making progress. Listen, interest rates are low, 
     inflation is low, we've got the best workers in the world. 
     We've got the best, hardest workers and smartest workers in 
     the world. We've got the ingredients for growth. But what has 
     taken place so far is not good enough for me. And I hope it's 
     not good enough for the Congress. What's happening in the 
     economy is not good enough for a stronger America. And 
     Congress can help.
       Listen, I come from the school of thought that says, if 
     you've got an economic problem--and remember, for the first 
     three quarters of my administration we were in negative 
     growth; the stock market started to decline in March of 2000; 
     economic growth started to show down in the summer of 2000; 
     we were in recession in the first three quarters of 2001.
       In order to make sure the country was stronger, I pulled 
     this page out of the economic textbook, the page that says, 
     if you let people keep more of their own money, they're going 
     to spend it on a good or a service. If they spend it on a 
     good or a service, somebody will produce the good and 
     service. And if somebody produces a good or service, some 
     American is more likely to find work. The tax relief came 
     right at the right time for economic growth and jobs. 
     (Applause.)
       And if Congress wants to help in job creation, they need to 
     make the tax relief permanent. They need to make the tax 
     relief permanent so our New Jersey small businesses and 
     entrepreneurs can plan for the future. After all, most growth 
     of new jobs comes from small businesses all across America.
       Congress also must understand they've got to pass an energy 
     bill. You see, an energy bill will be good for jobs. An 
     energy bill will be good for national security. We need an 
     energy bill that encourages consumption [sic], encourages new 
     technologies so our cars are cleaner, encourages new 
     renewable energy sources, but at the same time encourages 
     increase of supply here at home, so we're less dependent on 
     foreign sources of crude oil. (Applause.)
       Congress needs to get some work done before they go home. 
     And one of the most important things they can do is to pass 
     an anti-terrorism insurance bill. See, we need an insurance 
     bill to cover potential terrorist acts, so that hard hats in 
     America can get back to work. And I want a bill on my desk 
     that says we care more about the working people and less 
     about the trial lawyers. We want a bill that puts the hard 
     hats back to work, not enriches the trial lawyers here in 
     America. (Applause.)
       In order to make sure our country is stronger and our 
     economy grows, Congress must be wise with your money. Notice 
     I said ``your money.'' When it comes time to budgeting and 
     appropriations, which means spending, sometimes in Washington 
     they forget whose money they're talking about. You hear them 
     talking about the government's money. No,the money in 
     Washington is not the government's money, the money in 
     Washington is your money. And we better be careful about how 
     we spend your money. And if Congress overspends, it's going 
     to a problem for making America's economy continue to grow. 
     And so my message to Congress is: remember whose money you're 
     spending.
       Now, one of the problems we have is that any time you're 
     worried about spending, you set a budget. That's what you do. 
     The Senate hasn't been able to do so. They don't have a 
     budget, which means it's likely they're going to overspend. 
     See, every idea in Washington is a good idea. Everybody's 
     idea sounds good, except the price tag is generally in the 
     billions. In order to make sure the country is stronger, we 
     need fiscal responsibility in Washington, D.C. We need to 
     make sure that Congress does not overspend. Without a budget, 
     they're likely to overspend.
       They set deadlines on you, when it come to paying our IRS, 
     paying your taxes. There ought to be a deadline on them in 
     order to get a budget passed and to get bills passed. Now, 
     because they haven't been able to move, they're going to send 
     my desk soon what looks like what they call a temporary 
     spending bill. And that temporary spending bill should not be 
     an excuse for excessive federal spending. The temporary 
     spending bill ought to remember whose money they're spending. 
     A temporary spending bill ought to be clean, so that we don't 
     overspend as the economy is trying to continue to grow. What 
     we need in Washington is fiscal responsibility, fiscal 
     sanity. We need to set priorities with your money. And the 
     most important priority I have is to defend the homeland; is 
     to defend the homeland from a bunch of killers who hate 
     America. (Applause.)
       It's very important for the school children here to listen 
     to what I'm about to say. You're probably wondering why 
     America is under attack. And you need to know why. We're 
     under attack because we love freedom, is why we're under 
     attack. And our enemy hates freedom. They hate and we love. 
     They hate the thought that this country is a country in which 
     people from all walks of life can worship an almighty God any 
     way he or she fits. They hate the thought that we have honest 
     and open discourse. They hate the thought that we're a beacon 
     of liberty and freedom.
       We differ from our enemy because we love. We not only love 
     our freedoms and love our values, we love life, itself. In 
     America, everybody matters, everybody counts, every human 
     life is a life of dignity. And that's not the way our enemy 
     thinks. Our enemy hates innocent life; they're willing to 
     kill in the name of a great religion. (Applause.) And as long 
     as we love freedom and love liberty and value every human 
     life, they're going to try to hurt us. And so our most 
     important job is to defend the freedom, defend the homeland--
     is to make sure what happened on September the 11th doesn't 
     happen again, we must do everything we can--everything in our 
     power--to keep America safe.
       There are a lot of good people working hard to keep you 
     safe. There are people at the federal level and at the state 
     level, a lot of fine folks here at the local level, doing 
     everything we can to run down every lead. If we find any kind 
     of hint, we're moving on it--all within the confines and all 
     within the structure of the United States Constitution. We're 
     chasing down every possible lead because we understand 
     there's an enemy out there which hates America.
       I asked the Congress to work with me to come up with a new 
     Department of Homeland Security, to make sure that not only 
     can this administration function better, but future 
     administrations will be able to deal with the true threats we 
     face as we get into the 21st century. A homeland security 
     department which takes over the hundred different agencies 
     and brings them under one umbrella so that there's a single 
     priority and a new culture, all aimed at dealing with the 
     threats.
       I mean, after all, on our border we need to know who's 
     coming into America, what they're bringing into America, are 
     they leaving when they're supposed to be leaving America. 
     (Applause.) Yet, when you look at the border, there are three 
     different federal agencies dealing with the border: there is 
     Customs and INS and Border Patrol. And sometimes they work 
     together and sometimes they don't--they don't. They've got 
     different work rules. They've got different customs. 
     Sometimes they have different strategies. And that's not 
     right.
       So I asked Congress go give me the flexibility necessary to 
     be able to deal with the true threats of the 21st century by 
     being able to move the right people to the right place at the 
     right time, so we can better assure America we're doing 
     everything possible. The House responded, but the Senate is 
     more interested in special interests in Washington and not 
     interested in the security of the American people. I will not 
     accept a Department of Homeland Security that does not allow 
     this President, and future Presidents, to better keep the 
     American people secure. (Applause.)
       And people are working hard in Washington to get it right 
     in Washington, both Republicans and Democrats. See, this 
     isn't a partisan issue. this is an American issue. This is an 
     issue which is vital to our future. It'll help us determine 
     how secure we'll be.
       Senator Gramm, a Republican, Senator Miller, a Democrat, 
     are working hard to bring people together. And the Senate 
     must listen to them. It's a good bill. It's a bill I can 
     accept. It's a bill that will make America more secure. And 
     anything less than that is a bill which I will not accept, 
     it's a bill which I will not saddle this administration and 
     future administrations with allowing the United States Senate 
     to micro-manage the process. The enemy is too quick for that. 
     We must be flexible, we must be strong, we must be ready to 
     take the enemy on anywhere he decides to hit us, whether it's 
     America or anywhere else in the globe. (Applause.)
       But the best way to secure our homeland, the only sure way 
     to make sure our children are free and our children's 
     children are free, is to hunt the killers down, wherever they 
     hide, is to hunt them down, one by one, and bring them to 
     justice. (Applause.)
       As far as I'm concerned, it doesn't matter how long it 
     takes. See, we're talking about our freedom and our future. 
     There's no cave deep enough, as far as I'm concerned; and 
     there's no cave deep enough, as far as the United States 
     military is concerned, either. I want you all to know, if you 
     wear the uniform of our great country, I'm proud of you. I've 
     got confidence in you. I believe that you can handle any 
     mission. (Applause.)
       No, it's a different kind of war than our nation has seen 
     in the past. One thing that's different is oceans no longer 
     keep us safe. The second thing is, in the old days, you could 
     measure progress by looking at how many tanks the enemy had 
     one day, and how many he had the next day, whether or not his 
     airplanes were flying or whether or not his ships were 
     floating on the seas. It's a different kind of war. And 
     America has begun to adjust its thinking about this kind of 
     war.
       See, this is the kind of war where the leaders of the enemy 
     hide. They go into big cities--or as I mentioned, caves--and 
     they send youngsters to their suicidal death. That's the kind 
     of war we're having. It's not measured in equipment 
     destroyed, it's going to be measured in people brought to 
     justice. And we're making progress. I had made it clear to 
     the world that either you're with us or you're with the 
     enemy, and that doctrine still stands. (Applause.) And as a 
     result of the hard work by our United States military an the 
     militaries and law enforcement officers of other countries, 
     we've arrested or

[[Page S9396]]

     brought to justice a couple thousand or more. Slowly but 
     surely, we're finding them where we think they can hide.
       We brought one of them in the other day. He thought he was 
     going to be the 20th hijacker, or at least he was bragging 
     that way. I don't know if he's bragging now. But, see, he 
     thought he was immune, he thought he was invisible, he 
     thought he could hide from the long arm of justice. And like 
     many--about the like number haven't been so lucky as the 20th 
     hijacker. They met their fate.
       We're getting them on the run, and we're keeping them on 
     the run. They're going to be--as part of our doctrine, we're 
     going to make sure that there's no place for them to alight, 
     no place for them to hide. These are haters, and they're 
     killers. And we owe it to the American people and we owe it 
     to our friends and allies to pursue them, no matter where 
     they try to hide.
       And that's why I asked the Congress for the largest 
     increase in defense spending since Ronald Reagan was the 
     President. I did so because I firmly believe that any time we 
     commit our troops into harm's way, you deserve the best pay, 
     the best training and the best possible equipment. 
     (Applause.) I also asked for a large increase because I 
     wanted to send a clear signal to the rest of the world that 
     we're in this for the long haul; that there is no calendar on 
     my desk that says, by such and such a day we're going to 
     quit, that by such and such a day we will all have grown 
     weary, we're too tried, and therefore we're coming home.
       That's not the way we think in America. See, we understand 
     obligation and responsibility. We have a responsibility to 
     our children to fight for freedom. We have a responsibility 
     to our citizens to defend the homeland. And that only means--
     not only means dealing with real, immediate threats, it also 
     means anticipating threats before they occur, before things 
     happen. It means we've got to look out into the future and 
     understand the new world in which we live and deal with 
     threats before it's too late.
       And that's why I went into the United Nations the other 
     day. And I said to the United Nations, we have a true threat 
     that faces America; a threat that faces the world; and a 
     threat which diminishes your capacity. And I'm talking about 
     Iraq. That country has got a leader which has attacked two 
     nations in the neighborhood; a leader who has killed 
     thousands of people; a leader who is brutal--see, remember, 
     we believe every life matters and every life is precious--
     a leader, if there is dissent, will kill the dissenter; a 
     leader who told the United Nations and the world he would 
     not develop weapons of mass destruction, and for 11 long 
     years has stiffed the world.
       He looked at the United Nations and said this is a paper 
     tiger, their resolutions mean nothing. For 11 years he has 
     deceived and denied. For 11 years he's claimed he has had no 
     weapons and, yet, we know he has.
       So I went to the United Nations and said, either you can 
     become the League of Nations, either you can become an 
     organization which is nothing but a debating society--or you 
     can be an organization which is robust enough and strong 
     enough to help keep the peace; your choice.
       But I also told them that if they would not act, if they 
     would not deal with this true threat we face in America, if 
     they would not recognize that America is no longer protected 
     by oceans and that this man is the man who would use weapons 
     of mass destruction at the drop of a hat, a man who would be 
     willing to team up with terrorist organizations with weapons 
     of mass destruction to threaten America and our allies, if 
     they wouldn't act, the United States will--we will not allow 
     the world's worst leaders to threaten us with the world's 
     worst weapons. (Applause.)
       I want to see strong resolutions coming out of that U.N.; a 
     resolution which says the old ways of deceit are gone; a 
     resolution which will hold this man to account; a resolution 
     which will allow freedom-loving countries to disarm Saddam 
     Hussein before he threatens his neighborhood, before he 
     threatens freedom, before he threatens America and before he 
     threatens civilization. We owe it to our children and we owe 
     it to our grandchildren to keep this nation strong and free. 
     (Applause.)
       And as we work to make America a stronger place and a safer 
     place, we always must remember that we've got to work to make 
     America a better place, too--a better place. And that starts 
     with making sure every single child in America gets a great 
     education. (Applause.) Make sure that every child--make sure 
     that we focus on each child, every child. It says we expect 
     and believe our children can learn to read and write and add 
     and subtract. As a society, we will challenge the soft 
     bigotry of low expectations.
       We believe every child can learn, every child matters, and 
     therefore we expect to be told whether or not the children 
     are learning to read and write and add and subtract. And if 
     we find they're not, if we find there are certain children 
     who aren't learning and the systems are just shuffling 
     through as if they don't matter, we must challenge the status 
     quo. Failure is unacceptable in America. Every child matters, 
     and no child should be left behind in this great country. 
     (Applause.)
       A better America, a better America is one which makes sure 
     that our health care systems are responsive to the patient 
     and make sure our health care systems, particularly for the 
     elderly, are modern. We need prescription drug benefits for 
     elderly Americans. The Medicare system must be reformed, must 
     be made to work so that we have a better tomorrow for all 
     citizens in this country. (Applause.)
       A better America is one that understands as we're helping 
     people go from dependency to freedom, from welfare, we must 
     help them find work. A better America understands that when 
     people work, there is dignity in their lives. A better 
     America is America which understands the power of our faith-
     based institutions in our country. It's in our churches and 
     synagogues and mosques that we find universal love and 
     universal compassion. (Applause.)
       You now what's really interesting about what's taking place 
     in America is this: the enemy hit us, but out of the evil 
     done to America is going to come some incredible good, 
     because of the nature of our soul, the nature of our being. 
     On the one hand, I believe we can achieve peace. Oh, I know 
     the kids hear all the war rhetoric and tough talk, and that's 
     necessary to send a message to friend and foe alike that 
     we're plenty tough, if you rouse this country, and we're 
     not going to relent.
       But we're not going to relent because my desire is to 
     achieve peace. I want there to be a peaceful world. I want 
     children all across our globe to grow up in a peaceful 
     society. Oh, I know the hurdles are going to be high to 
     achieving that peace. There's going to be some tough 
     decisions to make, some tough action for some to take. But 
     it's all aimed at making America safe and secure and 
     peaceful, but other places around the world, too. I believe 
     this--I believe that if our country--and it will--remains 
     strong and tough and we fight terror wherever terror exists, 
     that we can achieve peace. We can achieve peace in the Middle 
     East, we can achieve peace in South Asia. We can achieve 
     peace.
       No, out of the evil done to America can come a peaceful 
     world. And at home, out of the evil done to our country can 
     come some incredible good, as well. We've got to understand, 
     in America there are pockets of despair and hopelessness, 
     places where people hurt because they're not sure if America 
     is meant for them, places where people are addicted. And 
     government can help eradicate these pockets by handing out 
     money. But what government cannot do is put hope in people's 
     hearts or a sense of purpose in people's lives. That's done 
     when neighbor loves neighbor. That's done when this country 
     hears the universal call to love a neighbor just like you'd 
     like to be loved yourself.
       No, out of the evil done to America is coming some 
     incredible good, because we've got citizens all across this 
     land--whether they be a part of our faith-based institutions 
     or charitable institutions--citizens all across this land who 
     have heard the call that if you want to fight evil, do some 
     good. if you want to resist the evil done to America, love 
     your neighbor; mentor a child; put your arm around an elderly 
     citizen who is shut-in, and say, I love you; start a Boy 
     Scout or Girl Scout troop; go to your Boys and Girls Clubs; 
     help somebody in need.
       No, this country, this country has heard the call. This 
     country is a country full of such incredibly decent and warm-
     hearted and compassionate citizens that there's people all 
     across New Jersey and all across America who without one 
     government act, without government law are in fact trying to 
     make the communities in which they live a more responsive and 
     compassionate and loving place.
       Today I met Bob and Chris Morgan, USA Freedom Corps 
     greeters, who coordinate blood drives right here in New 
     Jersey for the American Red Cross. Nobody told them they had 
     to do that. There wasn't a law that said, you will be a part 
     of collecting blood. They decided to do it because they want 
     to make America more able to address emergency and help 
     people in need. Whether it's teaching a child to read, 
     whether it's delivering food to the hungry or helping those 
     who need a--housing, you can make a huge difference in the 
     lives of our fellow Americans.
       See, societies change one heart, one conscience, one soul 
     at a time. Everybody has worth and everybody matters. No, out 
     of the evil done to America is going to come a compassionate 
     society. (Applause.) Now this great country will show the 
     world what we're made out of. This great country, by 
     responding to the challenges we face will leave behind a 
     legacy of sacrifice, a legacy of compassion, a legacy of 
     peace, a legacy of decency for future generations of people 
     fortunate enough to be called an American.
       There's no question in my mind--I hope you can tell, I'm an 
     optimistic fellow about our future. I believe we can overcome 
     any difficulty that's put in our path. I believe we can cross 
     any hurdle, climb any mountain, because this is the greatest 
     nation on the face of the earth, full of the most decent, 
     hardworking, honorable citizens.
       May God bless you all, and may God bless America. Thank 
     you, all. (Applause.)
  Mr. NICKLES. I read the speech.
  Read the next paragraph. I have read the one paragraph. Read the next 
paragraph. The Senator from West Virginia will be interested in this. I 
will read the two relevant paragraphs again:

       The House responded, but the Senate is more interested in 
     special interests in Washington and not interested in the 
     security of the American people.

  He didn't say the Democrats in the Senate. He didn't say what was 
stated on the floor. Let's be factual. Let's be honest. Let's say 
exactly what was

[[Page S9397]]

said. Let's not construe and say something else.
  Let me go on. The President said:

       I will not accept a Department of Homeland Security that 
     does not allow this President, and future Presidents, to 
     better keep the American people secure.
       And people are working hard in Washington to get it right 
     in Washington, both Republicans and Democrats.

  That is in the President's speech. That doesn't sound very partisan 
to me.

       See--

  This is again the President:

       See, this isn't a partisan issue. This is an American 
     issue. This is an issue which is vital to our future. It'll 
     help us determine how secure we'll be.
       Senator Gramm, a Republican, Senator Miller, a Democrat, 
     are working hard to bring people together.

  That is not a partisan speech. That is not flailing all Senate 
Democrats. That is not accusing all Senate Democrats as being 
unpatriotic. Quite far from it.
  So to stand on the floor and say, well, the President said that six 
times in the last few days, I don't believe is factually accurate. And 
to send signals to our allies and our adversaries that this is 
politicizing the war, or that some people think we might be, is 
politicizing the war, and it is wrong. And it sends the wrong signal. 
It sends all kinds of wrong signals, and it shouldn't be done.
  If you are going to quote the President of the United States, not his 
election committee, not some mysterious tape that shows up someplace, 
but if you are going to quote the President of the United States, you 
ought to quote him accurately. And that was not done. And it is 
probably one of the harshest attacks I have ever seen on a sitting 
President of the United States in my 22 years in the Senate--the 
harshest. And at a time when we are in the process of trying to build 
an international coalition, the timing could not be much worse.
  Also, I am bothered that people would say: Well, he said it. I'm just 
sure he did.
  Well, he didn't say it. And if somebody has a quote--an accurate 
quote--that shows I am incorrect, I will stand here and say, oops, I'm 
wrong, because I believe more than anything my integrity means more to 
me than whatever somebody else says. I want to be factually accurate.
  Before I came down yesterday to the floor, I said: Give me a 
transcript of the speech. I wanted to see exactly what it said. I 
didn't want to say: It didn't sound like something President Bush would 
say to me. And I have heard him give many campaign speeches. I know him 
pretty well. That doesn't sound like him. Where is it in his speech? 
Oh, he didn't say that.
  He even went on to say both Democrats and Republicans are working to 
pass a good bill. And he never castigated all Senate Democrats as being 
unpatriotic or not interested in national security--he didn't say it.

  Surprisingly enough, just because something is in the Washington Post 
does not make it right. The Washington Post was not even quoted 
accurately. I mean, come on now. This is a serious issue.
  I want to conclude with a statement.
  The Senate of the United States is a great institution, and I don't 
think it behooves us to quote a flier from the Republican National 
Committee, or the Democrat National Committee, and play a lot of 
politics, and say let's see what we can pull out of these documents. We 
are talking about a quote from the President not these fliers and 
statements from other people.
  I can pull out more quotes right now from President Clinton and Vice 
President Gore stating their efforts to repudiate Saddam Hussein, the 
need for strong enforcement of resolutions, and on and on, that they 
never enforced--that they never enforced.
  There were 16 resolutions passed in the United Nations dealing with 
Iraq, and the previous administration talked tough, lobbed a few bombs, 
a few cruise missiles, but we never enforced them. The net result is 
there have been no arms control inspections going on in Iraq for the 
last four years.
  It is a lot more dangerous today than it was four years ago.
  When I read these previous statements, both by President Clinton and 
Vice President Gore, about how we have to get tough against Iraq, and 
then we didn't do anything, it makes me wonder: Wait a minute, what is 
going on?
  So now we are saying we should adopt a resolution that is not too far 
different than what we adopted unanimously in 1998 with almost no 
debate, and people are acting like: Wait a minute, the sky is falling. 
Or they try to move an issue from homeland security into the war on 
Iraq. I don't know if that is deliberate or just a mistake, but there 
is a real problem there. You can't be sending mixed signals to our 
potential adversaries and/or our potential allies, when we are trying 
to get people on our side, and misquote the President of the United 
States on something that important.
  Mr. LIEBERMAN. Mr. President, will the Senator yield for a question?
  Mr. NICKLES. I am happy to yield.
  Mr. LIEBERMAN. Of course, I am working with colleagues on both sides 
of the aisle and with the White House to see that we can fashion a 
strong resolution giving the President authority to take whatever 
actions are necessary in Iraq.
  But will the Senator from Oklahoma help me understand, what did the 
President mean when he said, at a fundraiser for Mr. Forrester, in New 
Jersey, Monday: ``And my message to the Senate is: You need to worry 
less about special interests in Washington and more about the security 
of the American people''? At a welcome ceremony in Trenton, Monday, he 
said: ``The House responded, but the Senate is more interested in 
special interests in Washington and not interested in the security of 
the American people.''
  At a meeting with Cabinet members on Tuesday, the President said: 
``My message, of course, is that--to the senators up here that are more 
interested in special interests, you better pay attention to the 
overall interests of protecting the American people.''
  Then, finally, on Tuesday, at a fundraiser for Mr. Thune, from South 
Dakota: ``I appreciate John's vote on a good homeland security bill. 
And the Senate must hear this, because the American people understand 
it: They should not respond to special interests. They ought to respond 
to this interest: protecting the American people from a future 
attack.''
  So I say the problem here is we have a disagreement about how to best 
protect homeland security workers or whether to protect them, and also 
how to preserve the authority of the President over national security. 
That is a good-faith dispute which we are having.
  But I think the concern is that the President was questioning the 
patriotism of those who do not agree with him on that issue.
  Mr. NICKLES. I will be happy to respond to my colleague. I actually 
read both of those quotes. I put one in the Record. I will put both 
quotes in the Record so the American people can see this.

  I read the President's comments. You only read one line. I read three 
paragraphs--he never said, ``The Democrats in the Senate are not 
interested in national security.'' That was the maddening quote. He 
never said it--never said it. Yet it was accepted that he said it. That 
is wrong. It was stated on last night's TV, stated in this morning's 
floor debate. I heard one or two people say he impugned the integrity 
of the entire Democratic caucus. No, he didn't. Read what the President 
said. He even complimented Democrats. He said both Republicans and 
Democrats are working hard to pass a good bill.
  There are consequences to words. Words are important. I read the 
President's statements both at the Forrester event and the Thune event. 
They were not offensive, and they never stated what was said on the 
floor of the Senate. They were misconstrued somehow, some way. That is 
unfortunate because there are consequences to our words.
  There are some people who listen. There are headlines. I haven't read 
what the European papers have said, but I don't look forward to that 
because I am afraid it sends the wrong signals.
  I do agree with my colleagues, we should improve the quality of 
debate in the Senate. If we ever quote anybody, we should quote them 
accurately. We should never impugn the motives or integrity of any 
Member. That has happened more frequently around here than it should. 
Nor should we impugn

[[Page S9398]]

the motives or integrity of the President of the United States. 
Certainly if we are going to quote the President, an equal branch of 
Government, we should do it accurately. That wasn't done in this case.
  I don't think we should be reading from campaign flyers because we 
could do that all day long. We don't want to turn this into a political 
brawl. We want to legislate. We need to pass a Department of Homeland 
Security bill. We need to work out the issues. There is a legitimate 
debate, a difference of whether or not we should change the President's 
power or authority in dealing with employees. Should he have a national 
security waiver? Every President, going all the way back--most people 
said since Jimmy Carter--I believe to John F. Kennedy, has had a 
national security waiver in dealing with employees. The President of 
the United States needs flexibility to put people in, do different 
things.
  Senator Gramm has shown me a complaint filed by a union that was 
upset because of higher notification status--they didn't negotiate that 
with the union. That is absurd. The President should not have to 
negotiate with the union; if he feels compelled to issue a higher 
security threat to the Nation's people, he should not have to negotiate 
that with the union. One union has already filed a complaint, I guess 
before the NLRB, about that.
  Again, I will not impugn the integrity or the motives or the 
patriotism of a colleague because they may have a difference with me on 
that particular issue.
  Mr. BYRD. Will the Senator yield?
  Mr. NICKLES. I am happy to yield.
  Mr. BYRD. Who has the floor?
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. BYRD. I want to inquire as to how long the Senator believes he 
will be needing the floor.
  Mr. NICKLES. I will conclude very shortly.
  Mr. BYRD. I am not complaining.
  I would also like to quote George Romney, who used to be Governor of 
Michigan.
  Mr. NICKLES. I remember George Romney.
  Mr. BYRD. Here is what he said: I didn't say that I didn't say it. I 
said that I didn't say that I said that. I want to make that perfectly 
clear.
  Mr. NICKLES. I appreciate the chairman of the Appropriations 
Committee for his enlightening the debate.
  I will yield the floor.
  Again, I want to help restore the dignity and integrity of Senate 
debate. I want to help repair some of the damage that might have been 
done between the legislative branch and the executive branch. It is 
critically important. I say this mindful that I used to be one of the 
leaders when there was a Democrat in the White House. I didn't agree 
with President Clinton many times, and I stated so on the floor with 
great energy many times. I may have crossed the line sometimes. I am 
not sure. But I think it is very important that we respect the office 
of the President of the United States and that we not misquote the 
office of the President of the United States, nor that we ever misquote 
colleagues.
  I am very insistent that we be accurate in our positions, our 
statements, our numbers, our quotes. If not, it is demeaning to the 
body.
  Vice President Gore's speech to a San Francisco group was very 
demeaning to the office of the former Vice President because I think it 
undercuts the existing administration's dealing with some problems that 
were left by the previous administration.
  Mr. LIEBERMAN. Will the Senator respond to a question briefly?
  Mr. NICKLES. I am happy to.
  Mr. LIEBERMAN. I agree with everything the Senator has said. We have 
so much important work to do. We ought to go about it, even when there 
are differences of opinion, not impugning--to use his term--each 
other's motives.
  Would the Senator not agree that the processes of government would 
also be made not only more productive but more respectable if the 
President himself would not impugn the motives of Members of Congress 
of either party when they disagree with him?
  Mr. NICKLES. I will tell my friend and colleague, I just read the 
quotes. I don't think he was impugning our motives. He did not say 
Senate Democrats. If there is anything else from this dialog and 
speech, I hope the press and others will realize, the President never 
said, ``Senate Democrats aren't interested in national security.'' That 
is a misquote, and I am afraid a misquote that has done some damage. 
Hopefully, it can be repaired.
  I listened to the President. I don't think I have heard him impugn 
the motives of colleagues.
  I yield the floor.
  The PRESIDING OFFICER. The deputy majority leader.
  Mr. REID. Mr. President, I want printed in the Record this statement 
from this e-mail, the title of which is ``Urgent: Effectively defending 
our homeland at stake.'' This was sent out today. It quotes the 
President of the United States, George W. Bush. It says:

       The House responded, but the Senate is more interested in 
     special interests in Washington and not interested in the 
     security of the American people.

  That is a quote, supposedly, that the Republican National Committee 
sent out quoting President Bush. It goes on further in another 
paragraph to say:

       This bipartisan approach is stalled in the Senate because 
     some Senate Democrats have chosen to put special interest, 
     federal government employee unions over the security of the 
     American people.

  I want that in the Record. That is what is sent out today as a 
fundraiser from the Republican National Committee, the leader of which 
is the President of the United States, George W. Bush.
  I ask unanimous consent to print the document in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

              Effectively Defending Our Homeland at Stake!


   Tell Your Senators to Support President Bush's Homeland Security; 
         Democrat Senators Put Special Interests Over Security.

       ``I asked Congress to give me the flexibility necessary to 
     be able to deal with the true threats of the 21st century by 
     being able to move the right people to the right place at the 
     right time, so we can better assure America we're doing 
     everything possible. The House responded, but the Senate is 
     more interested in special interests in Washington and not 
     interested in the security of the American people. I will not 
     accept a Department of Homeland Security that does not allow 
     this President, and future Presidents, to better keep the 
     American people secure.'' --PresidentGeorge Bush, September 
     23, 2002.
       President Bush has called on the Senate to pass the 
     bipartisan plan by Senators Gramm and Miller that creates a 
     homeland security agency with the flexibility and freedom to 
     manage the needs to keep America safe. This bipartisan 
     approach is stalled in the Senate because some Senate 
     Democrats have chosen to put special interest, federal 
     government employee unions over the security of the American 
     people. Instead of providing President Bush with the power he 
     needs to protect the homeland, these Senate Democrats would 
     strip the Presidency of a vital national security tool every 
     President since John F. Kennedy has had--the power to suspend 
     collective bargaining agreements during times of national 
     emergency. Learn why this is critical to our homeland 
     defense: http://www.gopteamleader.com/myissues/view issue 
     asp?id=3;
       This week the Washington Post exposed why some Democrat 
     Senators have put special interests over our national 
     interests by reporting that ``lawmakers are loath to cross 
     them just weeks before critical elections,'' saying that 
     Democrats have received ``$50 million in donations in this 
     cycle'' alone. Tell these Democrat Senators that our homeland 
     security is more important than partisan politics and that 
     they need to support the bipartisan bill endorsed by 
     President Bush. We need a single homeland security agency 
     that:
       Protects the President's existing National Security 
     authority over the federal workforce:
       Gives the new Secretary of Homeland Security the 
     flexibility and freedom to manage to meet new threats;
       Protects every employee of the new department against 
     illegal discrimination, and builds a culture in which federal 
     employees know they are keeping their fellow citizens safe 
     through their service to America.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. Did the Senator want me to yield to him?
  Mr. GRAMM. I wanted to put something in the Record.
  Mr. BYRD. I yield to the distinguished Senator without losing my 
right to the floor.
  Mr. GRAMM. Mr. President, we were debating homeland security at one 
point earlier today. A perfect example of the kind of problem I am 
concerned about has just come to my attention. That is a complaint that 
has been filed

[[Page S9399]]

by the National Treasury Employees Union against a system that we are 
all familiar with. When there is concern about a potential terrorist 
attack, the Government has set up threat priorities. Green is a low 
threat, blue is a guarded threat, yellow is an elevated threat, orange 
is a high threat, and red is a severe threat.
  We have just gotten word that the National Treasury Employees Union--
and I want to put this in the Record--has filed a complaint basically 
contending that this system of ratings violates their union contract 
because the Department was required to negotiate with them before it 
sent out a warning system.
  I also want to put in the Record the statement from the White House 
release on it that said:

       In effect, the union is saying that the Customs Service has 
     no right to implement the President's homeland security 
     direction without entering into lengthy negotiations. And 
     since the Customs Service went ahead anyway, it is now suing 
     the Customs Service in the Federal Labor Relations Authority.

  This is a case that just happened that we ought to be looking at as 
we write this bill.
  I thank the Senator for yielding. To save money for the taxpayers, we 
produced one document on one side of the paper, and the other document 
on the other side of the paper. So when we put it in the Record, look 
on both sides of the paper. I ask unanimous consent that these 
documents be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

  United States of America, Federal Labor Relations Authority--Charge 
                           Against an Agency

       1. Charged Activity or Agency: United States Customs 
     Service, 1300 Pennsylvania Avenue, NW, Room 2.3-D, 
     Washington, DC 20229, (202) 927-2733, fax. (202) 927-0558.
       2. Charging Party (Labor Organization or Individual): 
     National Treasury Employees Union, 901 E. Street, NW, Suite 
     600, Washington, DC 20004, (202) 783-4444, fax. (202) 783-
     4085.
       3. Charged Activity or Agency Contact Information: Sheila 
     Brown, Director Labor Relations, 1300 Pennsylvania Avenue, 
     NW, Washington, DC 20229, (202) 927-3309, fax. (202) 927-
     0558.
       4. Charging Party Contact Information: Jonathan S. Levine, 
     Asst. Counsel for Negotiations, 901 E St., NW, Suite 600, 
     Washington, DC 20004, (202) 783-4444, fax. (202) 783-4085.
       5. Which subsection(s) of 5 U.S.C. 7116(a) do you believe 
     have been violated? (See reverse) (1) and (5).
       6. Tell exactly WHAT the activity (or agency) did. Start 
     with the DATE and LOCATION, state WHO was involved, including 
     titles.
       On or about August 20, 2002, Customs issued a Customs Alert 
     Protective Measures Directive without first notifying NTEU 
     and affording it the opportunity to negotiate in violation of 
     5 U.S.C. 7116(a)(1) and (5).
                                  ____



                                Timeline

       March 11: President signed Homeland Security Policy 
     Directive 3 (Attachment A), which called for the creation of 
     the five-level Homeland Security Advisory System. The key 
     idea of this system was that federal state, and local 
     agencies would adopt standardized protective measures for the 
     different threat levels. This began a formal 135 day comment 
     period.
       July 26: Attorney General Ashcroft and Governor Ridge 
     reported to the President that the system was ready to put 
     into effect.
       July 28: The White House directed all agencies to conform 
     their protective security conditions to the new five tiered 
     system.
       August 20: The Commission of Customs, Judge Rob Bonner, 
     complied with this directive from the President by issuing a 
     Customs Alert Protective Measures directive to the entire 
     customs Service (Attachment B).
       September 10: The President decided to raise the threat 
     level from yellow (level 3) to orange (level 4). The Customs 
     Service and many other federal, state, and local security 
     agencies responded by increasing their protective measures to 
     the next level. Virtually all experts agreed this is a better 
     system that what we had before.
       September 18: The National Treasury Employee Union, which 
     represents some officers of the Customs Service, filed a 
     grievance with the Federal Labor Relations Authority 
     (Attachment C) against the customs Service for issuing the 
     directive.
       [Their grievance reads: ``On or about August 20, 2002, 
     Customs issued a Customs Alert Protective Measures Directive 
     without first notifying and affording it the opportunity to 
     negotiate in violation of 5 U.S.C. 7116(a)(1) and (5).'' (5 
     U.S.C. 7116(a)(1) and (5) is the standard statute under which 
     ULP grievances are customarily filed.)]
       In effect, the union is saying that the Customs service has 
     no right to implement the President's homeland security 
     direction without entering into lengthy negotiations. And 
     since the Customs Service went ahead anyway, it is now suing 
     the Customs Service in the Federal Labor Relations Authority.

  The PRESIDING OFFICER. The Senator from West Virginia.

                          ____________________