[Congressional Record Volume 148, Number 125 (Monday, September 30, 2002)]
[Senate]
[Pages S9580-S9585]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           HOMELAND SECURITY

  Mr. DORGAN. Mr. President, I have been hearing in recent days that, 
once again, the President is on the campaign trail across the country. 
Sometimes he does two, three, four, and five fundraisers a day. At most 
of these fundraisers, the President criticizes the Senate for not 
passing the homeland security bill exactly the way he would like it. I 
thought I might make a couple of comments about that.
  First, we in the Senate are in the process of debating the homeland 
security bill. I hope the President will ultimately be willing to 
compromise with us on some key issues. I believe we will pass a 
homeland security bill, and I believe it will be soon if we get some 
willingness to compromise on the part of the White House. We will also, 
at the President's request, take up a resolution dealing with the 
question of Iraq and the use of force and the United Nations.
  It is our intention on the majority side to have a good, aggressive 
debate on these issues, but at the same time work with the President 
and accommodate the President as much as possible.
  But I want to make a few points that I think are important. Foremost 
among these is that I don't think it is appropriate for the President 
to be going around the country, doing multiple fundraisers every day 
and suggesting that the Senate or some Members of the Senate do not 
seem to care about national security. I think that is terribly 
inappropriate.
  It is not inappropriate at all for the President to campaign. He 
certainly will and should do that, but I don't think he ought to use 
these campaign opportunities to do what he has been doing. I understand 
he has raised something like $130 million. He is a prodigious 
fundraiser, and he has every right to do that. But it is unfortunate 
that a President who has spoken of a desire to change the tone of 
political discourse in Washington, DC, is rushing around the country 
doing fundraisers and pointing the finger at the Democrats in the 
Senate, saying they don't care about the security of this country.
  The fact of the matter is that Democrats proposed the creation of a 
Department of Homeland Security just one month after the terrorist 
attacks on September 11 of last year. Lest we forget, Senator 
Lieberman--the prime sponsor--introduced in the Senate a bill to create 
a homeland security Cabinet agency exactly 30 days after the September 
11 attacks.
  The President opposed it. The White House opposed it. They said they 
didn't want it. They objected. Month after month after month, the White 
House opposed the creation of a Cabinet level agency dealing with 
Homeland Security.
  In fact, when the legislation was marked up in the full committee 
chaired by Senator Lieberman, the Republicans largely voted against it 
in the full committee because the White House opposed it, the President 
opposed it, the President didn't want it.
  And then on June 6, a full 9 months after the September 11 attacks, 
the President did a 180 degree reversal and said: Now we want a new 
Department. And, by the way, we not only want this new Department, but 
we want the following provisions to apply to the 170,000 workers of the 
new Department, and we are not willing to compromise. We demand that it 
be done the way we intend it to be done. That was the message from the 
White House.
  First, for 9 months they didn't want an agency. Now they not only 
want an agency, but they say we must have it their way and will not 
compromise. And then, in the middle of the Senate debate, the President 
goes on the campaign trail, and suggests that Democrats don't care 
about national security. That is nonsense.

  The President said he wants to come to town to change the tone. There 
is precious little evidence of that in recent weeks, I would say. But I 
do think it is time to change the tone.
  The right thing for the President and the Congress to do is to work 
together to reach a fair compromise and to find a way to do this in a 
thoughtful way. Changing the tone means you sit down together and try 
to get the best of what both sides have to offer. That is all we ask at 
this point.
  We have been on this legislation for some 4 weeks. There is no reason 
we

[[Page S9581]]

cannot have thoughtful and satisfactory compromises so we can pass a 
Department, a Cabinet level agency on homeland security, through this 
Senate, go to conference, and get a bill to the Senate he can sign. 
There is no reason we cannot do that and do that soon.
  I believe that is the goal of Senator Lieberman. I know it is the 
goal of Senator Daschle. I just visited with him. We want this to 
happen.
  I said the other day that I would never, ever, under any set of 
circumstances, question whether anyone in this Chamber supports this 
country's national security. Everyone does--liberal, conservative, 
Republican, Democrat; we all strongly support the security of the 
United States. We may come at it from different angles or different 
approaches and have different ideas, but I believe everyone really has 
the best interests of this country at heart. I believe that of the 
President as well.
  I think it is now time for the President to sit down with us and 
reach agreements and reach some compromises and get this piece of 
legislation moving. And I think it is time, long past the time, for the 
President to stop going out on the fundraising trail and using this 
issue in a divisive and inappropriate way.
  We need to get this right. This debate isn't about politics. This is 
about effectively protecting the interests of this country. And we are 
all in this together.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. LIEBERMAN. Mr. President, I thank the Chair.
  I thank my friend from North Dakota for what he said. It has gotten 
frustrating in the last couple of weeks, and all the more so because we 
agree on 90 to 95 percent of what ought to be in legislation creating a 
Department of Homeland Security.
  The senior Senator from Texas, who is the lead advocate for the 
administration, for the White House, for the President, and for 
himself, has said the substitute he offered to the bipartisan bill that 
came out of our Governmental Affairs Committee is 95 percent the same 
as the Governmental Affairs Committee bill. We have a 5 to 10 percent 
difference, mostly focused on this question of how you protect and 
reassure Federal workers who are moved from other Departments to this 
new Department while not undercutting the President's authority over 
national security. Surely we can find a way to bridge that gap on a 
bipartisan basis. As my friend from North Dakota knows, Senator Chafee 
is taking a lead role in creating a bipartisan alternative to the parts 
of our committee bill that dealt with this question. And I accepted 
that compromise even though it wasn't the one our committee first 
adopted and I proposed, because I thought it was a way to break the 
logjam and allow us to create and enact into law that 95 percent which 
we all agree on. But the White House has remained unyielding.
  Mr. DORGAN. Mr. President, if the Senator will yield for a question, 
is it not the case last week after several weeks where we had this 
impasse with the White House on this issue--the bipartisan proposal 
that tries to be the centrist proposal--it was once again blocked? The 
White House said, No, we are not interested in doing that either. It is 
either our way or no way. If it is not our way, we intend to go to 
fundraiser after fundraiser and criticize.

  I have great respect for the President. I have supported him on many 
things. Especially in a political season with all of this discussion 
existing in this country about changing the tone, I am just not very 
happy seeing three to five fundraisers a day and using the opportunity 
to say, By the way, the Senate can't get this bill done. What is the 
bill? The bill is to create a Cabinet-level Department of Homeland 
Security proposition which the White House opposed for 9 straight 
months.
  In fact, the ranking Member--I say to the Senator from Connecticut--
voted against the proposal, and then, 2 weeks later, found out he was 
in favor of the proposal. He used a whimsical quote about being in 
favor of something which he voted against because the White House 
pivoted and said, No, we support it, but based on the notion of what we 
believe must happen. And, if that is not satisfactory to the Congress, 
we are going to go criticize the Congress rather than reach a 
compromise.
  Once again, I would like to see a change in tone, but I haven't seen 
it, at least in recent weeks.
  Mr. LIEBERMAN. In response to my friend from North Dakota, he is 
absolutely right on a few of the points involved. Words have 
consequences, both in our personal lives and in our public lives. When 
you take the good-faith dispute we have had here about this single 
question of Federal employees' rights to be transferred to the new 
Department and suggest people in the Senate are putting those concerns 
ahead of national security by which you are questioning their motives, 
and even their patriotism, to some extent, it has consequences. It has 
consequences because we naturally feel we have been treated unfairly. 
It is unfortunate; it has consequences beyond this bill. It began to 
have consequences last week on questions related to a resolution that 
would authorize the President to take military action in Iraq, if 
necessary.
  I think what my friend from North Dakota has said is very important 
to remember here. We have tried and have not always succeeded. But when 
we come to questions of national security, foreign and defense policy, 
as we always say, partisanship ends at the Nation's borders. We are in 
a new world post-September 11, 2001, where national security is within 
our borders. The questions of national security are within our borders. 
We should strive for the same absence of partisanship and debate this 
as we do internationally. That is why we have all got to lower our 
voices a bit and try to focus on the very narrow area of difference we 
have so we can get this job done to protect the security of the 
American people.
  The Senator from North Dakota is right. The truth is, Senator Arlen 
Specter, our Republican colleague from Pennsylvania, and I and others 
introduced a bill to create a Department of Homeland Security in 
October of last year. The administration had what I always respected as 
a good-faith difference of opinion. They didn't feel it was necessary. 
They felt the Office of Homeland Security the President created by 
Executive Order could do the job. I always felt, and Senator Specter 
felt, we needed a Department with a strong Secretary with budgetary 
authority and line authority over people serving under them. That 
dispute went on for 8 months until the President endorsed the idea on 
June 6. I never would have thought to say or allege, because the 
President and we had this dispute about how best to protect homeland 
security, somehow the President was putting that bureaucratic or 
ideological vision--whatever you call it--ahead of his commitment to 
national security. Obviously, that would have been unfair, just as 
I think some of the statements the President has made in the last week 
are unfair.

  It is Monday, and it is a new week. Hope springs eternal. I hope we 
can sit and reason together with the biblical ideal--the prophet's 
vision--in our minds.
  There is a danger lurking out there. The terrorists are still out 
there. They hide in the shadows. But they are at work planning to 
strike us again. Shame on us if we don't get together and create a 
Department that can prevent them from doing that. Let us do it this 
week. We can break this logjam. It is that simple.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. BENNETT. Mr. President, I listened with interest while my two 
friends discussed this issue. I may as a footnote point out they really 
are my two friends. My mother used to say you could always tell how 
much a Senator hated another one by how many ``distinguished'' and 
``great friend'' adjectives he used. But, in this case, it is genuine.
  I think the Senator from North Dakota has raised a legitimate issue 
about the tone. I would like to do what I can to change the tone of 
this debate.
  As I see it, speaking solely for myself as maybe the last Member of 
the committee, the fight here is about the President's ability--or, 
more appropriately, the new Secretary's ability--to manage the 
Department efficiently and effectively.
  I do not see the history quite the same way in terms of the dispute,

[[Page S9582]]

Should we have a Department or should we not have a Department in the 
months leading up to the President's request.
  I believe that within the administration there was always an 
assumption that a Department, at some point, made sense, but the 
administration was not willing to identify a specific set of 
recommendations as to how that Department would be formed until the 
President made his statement.
  So I do not think it was a matter of resisting, resisting, resisting, 
and suddenly changing his mind. I think it was: We are going to keep 
our options open. We will not endorse anything. Therefore, we will not 
endorse the Lieberman bill until we have decided what it is we want.
  I think the Senator from Connecticut has been more than generous in 
his willingness to grant good faith to the administration on that 
issue. I think that is correct on both sides.
  Now, as I understand the issue, listening to members of the 
administration, as we meet in our meetings, and listening to the debate 
both in committee and on the floor, there is no desire, at least 
substantively within the true policymakers of the administration, to 
turn this into a partisan fight. I will grant there are those who are 
willing to grab for any partisan advantage they can find. I would 
suggest that people who have that inclination exist on both sides of 
the aisle, populate both parties, and, indeed, may even be found in the 
Green Party or some other party that likes to pose as being above 
searching for a partisan advantage.
  But I believe the problem in this circumstance stems from the high 
stakes that are involved in making sure the Department is done right. I 
have addressed this on the floor before, and the Senator from 
Connecticut has heard me address it in committee. The challenge of 
putting together a Department such as this is so overwhelming, and the 
possibilities that it will go wrong if it is not properly constructed 
in the first instance are so great, that things that might have been 
resolved on a more normal legislative question become sticking points 
on this one.
  I have said on the Senate floor before that I was involved in the 
creation of the Department of Transportation, which has some 
similarities to this. Because we took the Coast Guard out of the 
Treasury Department--I say ``we''; it was done in the Johnson 
administration. I was in the Nixon administration that inherited this 
shortly after it was created but while the problems still existed.
  They took the Coast Guard out of the Treasury Department. They took 
the Highway Administration out of the Commerce Department. They took 
the FAA from its status as an independent agency. They took the Urban 
Mass Transit Administration out of the Department of Housing and Urban 
Development. And they took several other agencies of smaller stature, 
pasted them together into a single Department, and discovered major 
management challenges.
  Whenever I address this issue in front of a group of business 
executives who say, Why can't we put this together very quickly, I 
always ask them the question, Have any of you ever been engaged in a 
major corporate merger? And when they nod their heads, I say, Do any of 
you have any thoughts that this will be easy?
  It is at least twice as large as the challenge creating the 
Department of Transportation. This is not the same thing as creating 
the Department of Education, which simply took the Office of Education 
and slapped the ``Department'' label on it. It still had the same 
culture, the same work rules, the same procedures.

  It is not the same thing as taking the Department of Veterans 
Affairs, which was simply taking an existing office, slapping a new 
label on it, and saying, OK, we are now going to take veterans and 
elevate them to Cabinet status. In this case, it is putting together so 
many disparate agencies, many of which have been functioning in an 
atmosphere where homeland security is a part, but almost an unimportant 
part, of their main mission, but because of where they are, they need 
to be pasted together in this new Department and have a major change.
  As I listen to the White House individuals talk to us on the 
Republican side--as we talk about this, they say: This is not really a 
matter of union versus nonunion; this is a matter of the power of the 
President and, through the President, his delegate, the Secretary, to 
organize the Department in the most efficient way. And we are afraid--I 
am speaking now for the administration, which is maybe presumptuous on 
my part, but as I hear what they say, it is: We are afraid that if it 
comes in the form we are talking about here, we will end up with a 
Department that is unmanageable, and the President will have to go 
through so many hoops, laid out in departments that are not focused on 
homeland security, that it will be impossible for the new Secretary to 
function.
  I ask all of my colleagues this rhetorical question--I have asked the 
Senator from Connecticut this question, and he has answered yes--but I 
ask all of the Senators this rhetorical question: Would you be willing 
to accept appointment as the new Secretary of this Department in the 
form in which it is being proposed to us under the Breaux-Chafee-Nelson 
amendment?
  I have some management experience. I have been in the executive 
branch in a Cabinet-level Department. I could not honestly answer that 
question yes for myself because I watched as the first Republican 
Secretary of Transportation, John Volpe, wrestled with all of the 
problems of moving people around the Department. The Congress gave him, 
a high degree of management flexibility. He could move people around 
without asking congressional approval for a certain period of time. I 
should probably research the exact period. My memory is that it was 3 
years after the creation of the Department. He could move people, 
almost capriciously, for 3 years.
  Secretary Boyd, who was the first Secretary of Transportation, did it 
for 18 months. I know Secretary Volpe did it until the time came. It 
was absolutely essential for me, in the office I organized for the 
Secretary, to have that kind of flexibility. I was moving people 
around, violating what had been their traditional kinds of protections, 
simply because the whole thing would not function if we did not have 
that kind of flexibility.
  The Congress put a time limit on it because they wanted to make sure 
that the Secretary would not abuse that power. I remember how concerned 
Secretary Volpe was that the clock was running, and he had to get the 
reorganization done before midnight struck and suddenly everything 
would be frozen again.
  We were talking about a Department dealing with entirely domestic 
issues, having no national security implications, in a situation where 
there was no external pressure, such as a potential attack. And it took 
3 years or more before that Department came together and functioned.
  As I have reminded Senators before, an even larger example of this 
kind of organization, which is the closest parallel we have to creating 
the Department of Homeland Security, was the reorganization of the 
Department of Defense that came after the Second World War. That was in 
1947.
  The Department of Defense probably did not fully function until the 
Goldwater-Nichols Act of Congress stepped in, what, 15 years later? 
Certainly more than a decade later. And it is instructive to remember 
that the first Secretary of Defense, faced with all of these 
challenges, committed suicide.
  There are those who say, well, there were other problems in his life. 
And I am sure that is true. I will not attribute his ultimate 
depression and decision to end his life to the difficulties of managing 
the Department of Defense, but it certainly can be said that those 
difficulties did not help.
  So if the President were to call me and say: Bob, you have had 
experience at Transportation; you have been in the executive branch; 
you have been an appropriator; you have a unique background; I want you 
to be the Secretary of Homeland Security and serve the country; I would 
have to say to him: Mr. President, not under the terms of this bill. My 
ability as the CEO would be hamstrung.

  The Senator from Connecticut is exactly right. Through his good 
efforts and his willingness to be open, which is his hallmark and his 
trademark as a Member of this body, he has worked with the White House 
in crafting something that is agreeable to both sides 95

[[Page S9583]]

percent, maybe even more than 95 percent. There is no point in putting 
a firm number on it because the two are now tremendously close.
  The remaining issue is the kind of issue that would cause me to turn 
down service in this position. May I hasten to say, I am not running 
for the position, lest anybody have any mistakes about this. I enjoy 
the Senate too much.
  As I have tried to look at it as objectively as possible, I have 
decided that the President's statement that he would veto this bill is 
a correct one. It is not rooted in a desire to embarrass the Senate or 
impugn the integrity or the ability of the Senator from Connecticut or 
his committee on which I serve. It is rooted in a firm belief that the 
management procedures of this Department, as structured in this bill 
and as they would remain structured under the proposed amendment, would 
prevent the next Secretary, whomever he or she may be, from having 
absolutely essential authority to organize the Department.
  I have said this before--I will say it again; no one has taken me up 
on it--I would be willing to put a time limit on the kind of 
flexibility I think we need. If indeed there are those who are nervous 
that some future President, even if they give this one every benefit of 
the doubt, those who are nervous that some future President might abuse 
this power, I would say: Let's give the President the power he wants on 
management flexibility and put a time limit on it and say his ability 
to move people around would expire after 5 years, I would think would 
be more logical, if he had the experience of something like 3 at the 
Department of Transportation.
  On the issue of his ability to designate people for national 
security, the President probably does not want a time limit on that. He 
probably believes that every President should be preserved in the 
rights they have had. That one might be negotiated as well.
  But as I understand it, these are the two challenges: First, the 
flexibility factor which, frankly, we have not been talking about on 
the Senate floor because we have been so hung up on other ones. That 
would be the one that would give me the most pause if I were the 
potential Secretary. I would be willing to see if we couldn't work that 
one out with a time limit. And then the second issue, the right of the 
President to make a national security decision, maybe we could find a 
way around that one, too, in terms of some sort of time circumstance. I 
don't think just because it was done with Jimmy Carter means that it 
has to remain sacrosanct forever. We can look at it in view of the 
threat, get some experience under our belt as to how the new Department 
works, and say that Congress will relook at this at X particular point.
  My bottom line, speaking solely for myself and not for the 
administration--because I am not authorized to do that--is that I hope 
we can, in fact, reach out in the spirit the Senator from Connecticut 
has always shown, find some solution, but recognize that it is not a 
political fight to determine who is protecting unions and who is the 
most patriotic. It is a serious, legitimate, important management 
challenge as to how much power this President and future Presidents, 
the newly appointed Secretary and future Secretaries, are going to have 
to manage the Department in the most efficient possible way to preserve 
our homeland against attacks.

  The reality is that the attacks will come. The reality is that some 
of them will get through. No matter how well the Department is manned, 
no matter how well the Department is structured, no matter how vigilant 
the employees of the Department will be--and I will stipulate, I expect 
that all of them will be vigilant, whether they are union members or 
nonunion members or don't care--an attack will make it through somehow, 
somewhere.
  And then we want to look back on it and say: We did the very best we 
could to see to it that the Secretary had all of the tools he or she 
might need. And, yes, this attack got through, but these didn't because 
we put the Department together intelligently in the first place.
  I will be happy to enter into whatever discussion the Senator from 
Connecticut may want to have, knowing that I don't speak for the 
administration, but I speak as a member of his committee from the other 
side of the aisle who has always had the highest respect for his 
willingness to listen, his willingness to cooperate, acknowledge that 
he has helped me on some of the issues I believe strongly about to his 
own political peril because there are some Members on his side who did 
not want to do some of the things I wanted to do. I would hope in the 
same spirit that he has mentioned here that something can be worked 
out.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. LIEBERMAN. Mr. President, I thank my friend from Utah. I return 
his respect and trust quite directly. I appreciate what he said. I 
appreciate the tone in which the Senator from Utah spoke, and just to 
get the nonsense of last week behind us, that we can obviously disagree 
on issues related to this bill or other bills without questioning, 
without impugning each other's motives or, Lord knows, questioning each 
other's patriotism.
  I agree, when we create this Department of Homeland Security--and we 
will create a Department of Homeland Security; we are going to find a 
way to do it before long, I hope--it is going to be a massive 
undertaking: 170,000 employees, clearly the largest reorganization of 
the Federal Government since the end of the 1940s, the post-Second 
World War reorganization of our national security and foreign policy 
apparatus.
  As the Senator from Utah said, this is not just putting a new name on 
the door, ``Department.'' This is taking a lot of different people from 
a lot of different places in our Government and bringing them together 
under a strong Secretary in focused divisions within that Department. 
Those are exactly the parts that are in common between the proposal 
from our committee and the White House proposal.
  Why are we doing it? Simply because the current state of 
disorganization is dangerous. When you have three, four, or five 
different Federal Government agencies at a point of entry into the 
country at the border and they are each in separate offices--they may 
bump into each other, but they are not really working together in a 
coordinated way; they usually don't even have telecommunications 
equipment that speaks easily in a crisis to one another--that is 
dangerous disorganization.
  If you have, as we know from the investigation of the Joint 
Intelligence Committees, a situation where there are bureaucratic 
barriers between the intelligence community, the law enforcement 
community, and information is not shared in a way that can put all the 
dots, as we keep saying, on a board so you can see the outlines of a 
potential terrorist attack so you can stop it, that is disorganization 
that is dangerous.
  I could go on and on, to each of the five or six divisions of the new 
Department.
  So that is why we are all proposing this step. It is going to be a 
big job. I want to make it clear. I know the Senator from Utah didn't 
mean to suggest this in reporting our conversation. I am not now, nor 
will I be a candidate for Secretary of the new Department of Homeland 
Security. When he asked me whether I would advise who was taking it to 
take it under the Nelson-Chafee-Breaux language--if they should 
accept--my answer was yes. I want to explain why, in the calm of a 
Monday afternoon. In this particular colloquy, we may have an 
opportunity to set more on the record as I see it than has gotten in to 
this point.
  We have 170,000 employees to be moved to the new Department. The 
number I hear about union-represented employees is approximately 43,000 
who will be moved to the new Department. There are two factors at work 
here. One is an anxiety among a lot of Federal workers that this 
existing statute, which has been referred to, that was adopted in the 
Carter administration, that gives the President of the United States 
extraordinary authority to declare that a particular category of 
Federal employees should not be allowed to belong to a union, an 
employee association, because that union membership would be 
inconsistent with national security--the existence of that statute 
applied 10 or 11 times since adoption in the late 1970s in the Carter 
administration, and usually in quite

[[Page S9584]]

narrow areas--the Defense Intelligence Agency and in similar groups--
the existence of that statute used for the first time by the current 
administration in January to deprive several hundred employees of the 
U.S. attorneys' offices around the country of the right to collectively 
bargain, to join unions, created widespread anxiety among Federal 
employees.
  Senator Thompson and I had some discussion on this last week. I don't 
need to get into the details of what the administration intended to do 
and what the employees thought. From the employees' point of view, they 
were worried that this statute would be used in a broader way than ever 
before to deny them the right to collectively bargain. I must say, 
again, that the right to collectively bargain among Federal employees 
is quite limited; most notably and, of course appropriately, Federal 
employees belonging to a union do not have the right to strike. That is 
a law. There are various other items that are normally negotiated 
between management and unions that are not negotiated in the Federal 
employee case--most notably salary. We are the managers, in that sense, 
who set salary levels--we in the Congress.
  So now we come to a recommendation that the Department of Homeland 
Security be created. There is great anxiety--and it remains so--among 
the 43,000 employees currently represented by unions who, when they are 
moved to this Department, because the name of the Department is 
Homeland Security, they might well be deprived of their collective 
bargaining rights. Our committee considered that and we came up with a 
proposal which, to state it in summary, would have allowed employees to 
appeal such a decision, such an order denying them collective 
bargaining rights to the Federal Labor Relations Authority--two-thirds 
of whose members, incidentally, are appointed by the sitting President. 
So, presumably, it would not have been a hostile board. When we came to 
the floor, and after that measure was in our proposal, the White House 
was quite adamant on the point that it would represent a lessening of 
the President's national security authority. Though the lessening would 
have been small, literally that was true. That would have been true 
because we would have subjected the Presidential decision on national 
security grounds to review by this administrative body and appeal to 
the administrative body. That is why, when I saw the gridlock here, and 
understanding that we agree on more than 90 percent of the two 
proposals--one White House and one committee--before the Senate now, I 
encouraged our colleagues, Senators Nelson and Breaux, to pursue a 
compromise. They engaged Senator Chafee in these discussions and they 
came up on this one with a proposal that the President would retain the 
authority he has, but would have to more clearly enumerate the reasons 
why he was invoking this authority; and, particularly, he would have to 
make clear, or give a statement, that the agency whose employees he was 
denying the right to collectively bargain had had its mission changed 
from the many years since the Carter administration, when no previous 
President had said that doing the work of that agency was inconsistent 
with the union membership to national security, with no right of appeal 
to an administrative agency. To me, that creates what I might call a 
kind of minimal due process for Federal employees, just to require the 
President who, by the one court case in this statute that had been 
decided, the President's authority here in that court case was held to 
be substantial. I mean, this is a case where President Reagan removed 
collective bargaining rights from a group of Federal employees for 
national security reasons and did not recite a determination as to why 
he did it. I believe the district court sided with the employees. It 
was appealed to a circuit court, and the district court said the 
President has to at least recite a determination rather than just issue 
an order.

  The circuit court actually said--I am paraphrasing and probably 
making something more complicated, a little more direct--the circuit 
court said they accept a presumption that though the President did not 
recite a determination, when it came to national security, his judgment 
was determinative. It set a very high standard for anyone questioning 
how a President would exercise this power the statute gives him.
  So my own feeling is that in the Nelson-Chafee-Breaux compromise, we 
have now put in a little language to require a statement of why the 
President did it, and the work of this Department, or agency, or office 
that changed since they moved to the new Department, but effectively no 
appeal from that. So I think we achieved a little measure of due 
process for the employees, without at all diminishing the national 
security authority of the President.
  On the question of civil service reforms, or changes, and so-called 
management flexibility, when the President first introduced his 
proposal and embraced the idea of a Department of Homeland Security, I 
remember speaking to Governor Ridge. He is a good man, and he was good 
enough to bring this up himself in a conversation we had a couple weeks 
ago. He said to me: I remember, Senator, that, as soon as the bill came 
out and you saw some of the changes we wanted on civil service, you 
appealed to me, why can't we put this aside for 6 months? This 
Department is going to take months to get up and functioning. I 
remember saying this to Tom Ridge--that this is a trap, a web, and we 
are going to get so entangled in it that it is going to run the risk of 
making it hard for us to adopt legislation creating a Department of 
Homeland Security.
  This is one of those rare cases where my prediction was correct. I 
say that with some understandable humility. I fear that is where we 
have ourselves now. In the committee bill, we adopted some bipartisan 
civil service reforms, worked on with great diligence by Senators Akaka 
and Voinovich over many months. Other than that, we didn't change the 
existing civil service law, except that we said we required the new 
Secretary of the new Department, 6 months after the effective date of 
the legislation, to come back to Congress and tell us whether he or she 
thought we needed to do anything more about management flexibility as 
the Department was taking place, based on the experience they had.
  So that is where our committee bill was. The President came in with a 
series of reductions in civil service protections for employees who are 
longstanding and that deepened the anxiety of the Federal employees 
that this Department was going to be used as a way to cut back on their 
protections, on the accountability, on the kinds of protections that, 
at their best, don't create rigid bureaucracy, but help to create the 
climate in which the best people are attracted to Federal service. The 
President's bill gutted that.

  Now comes the Nelson-Chafee-Breaux compromise, and here, too, I think 
they did something quite reasonable and progressive, which is they 
itemized four different areas where the President can exercise broad 
management flexibility, but they did something that builds on the best 
labor-management relations in the private sector and some very hopeful 
experiences with similar labor-management relations in Federal 
Departments, particularly the Internal Revenue Service. They said in 
the Nelson-Chafee-Breaux compromise: Mr. Secretary, we are giving you 
this flexibility in these areas of current civil service protections, 
but we require, before you implement them, to attempt to negotiate them 
with your workers. That is why I say in the best of modern private-
sector labor-management relations, the old hostility is not there. It 
is: Let's sit down around the table and figure out what works best for 
the company; you want jobs, we want to make a profit; let's figure out 
how we can best do this together. Let me mention, this is exactly the 
authority Congress gave the Internal Revenue Service a few years ago. 
It has worked quite well. In other words, in that legislation we said: 
Director of Internal Revenue, you have the authority to negotiate 
changes in the civil service, but you have to do it with your 
employees. In fact, they have negotiated some very progressive 
agreements with both sides agreeing once they sat down around the 
table.
  In that legislation and in this Nelson-Chafee-Breaux proposal, so 
again we protect the authority of the President, we say if the 
Secretary of Homeland Security and the workers in the

[[Page S9585]]

Department cannot reach an agreement, then they have to take it to 
arbitration to the Federal Service Impasses Panel. This is a board, 
again, all of whose members are appointed by the current President, so 
it is not a hostile board, and that board makes the final decision.
  I do believe that our colleagues, Senators Ben Nelson, Lincoln 
Chafee, and John Breaux, have worked out a proposal, a genuine 
compromise that is different from what our committee reported out but 
provides a door opener both to management flexibility, to some progress 
in management, and does not diminish ultimately the authority of the 
President of the United States, certainly not with regard to his 
ability and capacity now to invoke national security with regard to 
union membership rights of Federal employees.
  I am puzzled as to why the administration has not accepted this 
compromise proposal and the Senator from Texas is effectively involved 
in a filibuster of the overall bill. I remain open to discussion about 
parts of this. I appreciate what the Senator from Utah said about a 
time limit. Five years seems like a long time to me.
  One of the issues we considered in the committee, and I know was 
considered in the negotiations, was the possibility, with regard to the 
civil service management flexibility, of giving--we call it 
demonstration authority, but the idea was for a limited period of time 
to give the President some of the authority he wanted, and then come 
back and see how it worked and consider whether we wanted to extend it.
  I am grateful for the words of the Senator from Utah, and as we begin 
our new week, after some of the heat that was exchanged on the floor of 
the Senate, I am grateful for the coolness of his--in the best sense of 
that word--that is, the thoughtfulness of his remarks today. I will be 
glad to continue to talk with him to see if we can find common 
ground. We ought not to be in this gridlock on what I still consider to 
be a side issue from the main business of this Department: protecting 
the security of the American people.

  As the Senator from Utah said, we never want to give the impression 
we do not think the employees who will move to this Department are as 
concerned about homeland security as we and the rest of the American 
people are. In fact, the evidence before us is quite ample that Federal 
employees are concerned.
  The stories are legion and numerous of Federal employees--I think of 
FEMA employees--they were somewhere else and they rushed to the 
Pentagon to be of help; they flew to New York; they worked hours and 
hours of overtime. Of course, the most vivid demonstration of the way 
in which union membership is not inconsistent with national service or 
sacrifice is the firefighters in New York, several hundred of whom were 
off duty on September 11. When they heard what had happened, they just 
rushed to the scene. Nobody was thinking about whether this was 
supposed to be a day off under the collective bargaining agreement, 
what risks they were assuming, or they were going to be asked to do 
things that were not quite in their job description. Needless to say, a 
lot of them not only rushed into the building, but they never came out.
  I hope we can find common ground. I offer anything I can do to 
supplement the extraordinary positive work of the previous triumvirate 
I mentioned, Senators Nelson, Chafee, and Breaux, to get over this last 
big hurdle and get this bill adopted in the Senate, get it to a 
conference with the House, and then get it to the President's desk for 
signing.
  Mr. LEAHY. Mr. President, I do not want to interrupt.
  Mr. LIEBERMAN. The Senator's timing is good. That was the windup 
sentence.
  Mr. LEAHY. I wonder if the Senator will yield to me? I wish to 
discuss another aspect of the war on terrorism, and that is what we can 
do through the Justice Department. I wonder if the President will allow 
me to speak about that.
  Mr. LIEBERMAN. I will be happy to do so. I thank the Senator for 
coming to the floor and look forward to his remarks.
  The PRESIDING OFFICER (Mrs. Clinton). The Senator from Vermont.

                          ____________________