[Congressional Record Volume 148, Number 125 (Monday, September 30, 2002)]
[Senate]
[Pages S9572-S9573]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                HOMELAND SECURITY ACT OF 2002--Continued

  Mr. REID. Mr. President, the Senator from Pennsylvania is here and he 
wishes to speak on the bill. I ask unanimous consent we return to the 
homeland security bill and that there would be a period for debate 
only, and the Senator be recognized for whatever period of time he 
wishes to speak, and that when the Senator from Pennsylvania finishes 
his statement, we go back into morning business under the previous 
request.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, it is my hope that the Senate will 
complete action on the pending homeland security legislation, that we 
will go to conference with the House of Representatives, and that this 
bill will be passed, signed into law by the President, before we 
adjourn because, in my judgment, the most important business the 
Congress has is to legislate is on homeland security and to do our 
utmost to prevent a recurrence of 9/11.
  The intelligence communities have advised that there will be another 
terrorist attack. It is not a matter of whether or if, but it is a 
matter of when. I am not prepared to accept that. I believe another 
terrorist attack can be prevented. I believe had all of the so-called 
dots been put together before September 11, 2001, that there was a good 
chance that terrorist attack could have been prevented.
  I say that because there were very important leads which were never 
coalesced, analyzed, or brought together. I refer to the FBI report out 
of Phoenix, in July of 2000, about a man taking flight training, had a 
big picture of Osama bin Laden, very suspicious. That report never got 
to the upper echelons of the FBI. We had the CIA tracking two members 
of al-Qaida in Kuala Lumpur. They turned out to be hijackers, two of 
the pilots involved in September 11. But the CIA never told the FBI or 
never told INS, and they gained admittance to the country and were part 
of the suicide bombers.
  Then there is the famous, or perhaps infamous, national security 
agency report on September 10 that something dire was about to happen 
the very next day. It wasn't translated until September 12. Further, 
the very important effort by the Minneapolis branch of the FBI to get a 
warrant under the Foreign Intelligence Surveillance Act for Zacarias 
Moussaoui, who was supposed to have been the 20th member of the 
hijackers and suicide bombers, was never pursued properly because the 
FBI used the wrong standard.

  We know from the 13-page single-spaced letter written by Special 
Agent Colleen Rowley that the U.S. Attorney's office in Minneapolis was 
applying the wrong standard--a 75 to 80 percent probability--and that 
Agent Colleen Rowley thought it was a standard of more probable than 
not, which would have been 51 percent. The appropriate legal standard, 
as defined by the Supreme Court of the United States in Gates v. 
Illinois, in an opinion by then Justice Rehnquist, was that probable 
cause is established on the totality of the circumstances based on 
suspicion. Had the Zacarias Moussaoui matter been integrated, there was 
a great deal of information available in Moussaoui's computer which was 
not acquired. The Intelligence Committee hearings have disclosed that 
in the past two weeks. All of these dots were on the screen, and even 
more. Had they been brought together, then there is a possibility that 
9-11 may have been prevented. At least they would have been on inquiry.
  I believe this was a veritable blueprint. I believe we have a very 
heavy duty to see that this legislation is enacted and all of the 
intelligence agencies are brought under one umbrella. I tried to do 
that in 1996 when I chaired the Senate Intelligence Committee. I wanted 
to bring them all under the CIA. I think it is not really critical 
under which umbrella, but under one umbrella. Now we have the chance to 
accomplish that with homeland security.
  We have two provisions under the Labor-Management Act that are, so 
far, providing a controversy that has held the measure from going 
further. It is my suggestion these two provisions are not too far 
apart. The law, as set forth in 5 United States Code 7103 says:

       The President may issue an order excluding any agency or 
     subdivision thereof from coverage under this chapter [which 
     is collective bargaining] if the President determines that 
     (a) the agency or subdivision has a 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.

  That is the existing law which the President does not want changed, 
and there has been an effort by labor to what is called ``shore up'' 
those provisions of collective bargaining by this language in the 
Nelson-Chafee-Breaux amendment:

       The President could not use his authority without showing 
     that (1) the mission and responsibilities of the agency or 
     subdivision materially change, and (2) a majority of such 
     employees within such agency or subdivision have as their 
     primary duty, intelligence, counterintelligence, or 
     investigative work directly related to terrorism 
     investigation.

  Now, there was a question on my mind as to whether the language of 
the Nelson amendment was in addition to or in substitution for the 
existing language on collective bargaining. We had an extensive 
discussion among Senator Lieberman, Senator Thompson, Senator Breaux, 
myself, and Senator Nelson was on the floor. At that time, the drafters 
of the amendment said it was not in substitution for, but in addition 
to.
  Well, the main concern the President has expressed is he is concerned 
his authority under the provisions relating

[[Page S9573]]

to national security would be taken away. But the drafters of the 
amendment tell us that is not what is intended because the language is 
``in addition to'' and not ``in place of.''

  If you look at the specifics of the existing language about 
intelligence, counterintelligence, investigation, and the language of 
the amendment, the duties, primary duty, intelligence, 
counterintelligence, or investigative work, they are not too far apart. 
I think we can reach an accommodation there.
  The other provision that has provided the controversy is the issue of 
the President wanting flexibility, and the provisions of the Gramm-
Miller amendment have picked up the language of the House bill, which 
would give the President flexibility on these six categories: 
Performance appraisal, classification, pay rates and systems, labor-
management relations, adverse actions, and appeals. The amendment 
provided by Senator Nelson and Senator Breaux would give the President 
four of those six. It would give the President, No. 1, performance 
appraisal; No. 2, classification; 3, pay rates and systems; 4, adverse 
actions. But that would be subject to review by the Federal Services 
Impasses Panel, a seven-appointee panel, all of whose appointees are 
the President's.
  It seems to me we are very close here. I voted against cloture on the 
Lieberman bill because we do not have in the bill, as it is presently 
drafted, an adequate provision as to the directorate to have all of the 
intelligence agencies under one umbrella, and an adequate provision 
giving the Secretary of Homeland Defense direction to coordinate all of 
those agencies, to put all those dots on one screen, to have the best 
likelihood of preventing another 9-11.
  I ask unanimous consent that the full text of the amendment I have 
already filed and have ready to propose be printed at the conclusion of 
my statement today.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. SPECTER. Mr. President, I am opposed to cloture of the Lieberman 
bill until I have a chance to offer that amendment. I have also voted 
against cloture on the Gramm-Miller bill because, again, although I 
have had discussions with Senator Gramm, as I have had discussions with 
Senator Lieberman, we have not reached fruition. I want an opportunity 
to include this language about the intelligence directorate on the 
Gramm-Miller amendment.
  While I have not taken a position, as I said on Thursday, on whether 
I will ultimately support the Nelson-Chafee-Breaux amendment, which is 
backed by labor, or whether I will support the Gramm-Miller amendment, 
which is the President's preference, it is my hope we can yet work out 
an accommodation. But I think it is much more important the Senate pass 
a bill and we go to conference with the House, whichever provisions are 
included. I grant the provisions labor wants included are important to 
labor, and I grant the provisions the President wants included are 
important to the President. But as important as all of those provisions 
are, they are not as important as getting a bill that can be 
conferenced with the House, which can be signed by the President, so we 
can set up this Department of Homeland Security and we can have, under 
one umbrella, all of the intelligence agencies. It is not that the 
Secretary is going to tell the CIA agents around the globe where to go, 
or the FBI agents where to go, or the National Security Agency what to 
do, or the Defense Intelligence Agency, but as to the analysis, they 
should all come under one umbrella. That really is the critical factor. 
That is why I believe the conclusion of this bill on that issue is of 
greater importance than any other matter in the bill and of greater 
importance than any other matter which the Congress will consider 
during this session. So I am prepared to vote for cloture on the Gramm-
Miller amendment should I get the chance to offer my amendment.

  I do not think, as the Senator from Texas said, that he is absolutely 
entitled to a vote on his proposal without amendment. The rules of the 
Senate provide that there can be amendments to the Gramm-Miller 
proposal, just as there can be amendments to the Lieberman bill, just 
as there can be amendments to any bill. To repeat, I have not yet taken 
a position as to whether I will favor what labor seeks through the 
Nelson-Chafee-Breaux proposal or what the President seeks through the 
Gramm-Miller proposal, but it is of greatest importance that this 
provision on the Directorate of Intelligence Analysis be adopted and 
everything be placed under one roof.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                               Exhibit 1

   (Purpose: To give the Directorate of Intelligence the authority, 
  subject to disapproval by the President, to direct the intelligence 
    community to provide necessary intelligence-related information)

       In section 132(b), add at the end the following:
       (14) On behalf of the Secretary, subject to disapproval by 
     the President, directing the agencies described under 
     subsection (a)(1)(B) to provide intelligence information, 
     analyses of intelligence information, and such other 
     intelligence-related information as the Under Secretary for 
     Intelligence determines necessary.
  Mr. SPECTER. Mr. President, I ask unanimous consent that I may 
proceed for 5 minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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