[Congressional Record Volume 148, Number 147 (Thursday, November 14, 2002)]
[Senate]
[Pages S11002-S11012]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                 HOMELAND SECURITY ACT OF 2002--Resumed

  The PRESIDING OFFICER. The clerk will report the pending business.
  The bill clerk read as follows:

       A bill (H.R. 5005) to establish the Department of Homeland 
     Security, and for other purposes.

  Pending:

       Thompson (for Gramm) amendment No. 4901, in the nature of a 
     substitute.
       Lieberman/McCain amendment No. 4902 (to amendment No. 
     4901), to establish within the legislative branch the 
     National Commission on Terrorist Attacks Upon the United 
     States.

  Mr. LIEBERMAN. Mr. President, I will speak on the substitute on 
homeland security introduced yesterday by Senator Thompson on behalf of 
Senators Gramm and Miller. My feelings about this substitute, to put it 
as directly as I can, are mixed. The substitute would create a single 
strong Department of Homeland Security under the leadership of an 
accountable Secretary, which many Members have supported, actually, for 
more than a year now in response to the terrorist attacks of September 
11, 2001, and the dangerous vulnerabilities in our federal homeland 
security system that those attacks revealed.
  The substitute is also problematic in many ways. I categorize them in 
four chunks.
  First, this substitute contains several provisions that are just ill-
conceived, missed opportunities to close vulnerabilities in our 
security or that otherwise make the wrong choice.
  Second, the bill contains provisions that are unrelated to homeland 
security legislation. Apparently, as often happens in Congress, some of 
our colleagues have decided to put the provisions on what they assumed 
was the last bus out of town during this session rather than waiting 
for the right ride.
  Third, the bill contains provisions that do seem, as we approach 
December, to be gift wrapped by lobbyists to satisfy some special 
interests, not carefully considered to improve the security of the 
American people.
  Fourth, a number of provisions in the bill are 11th hour additions, 
new to everyone in the Senate, not previously included either in the 
legislation that came from our Governmental Affairs Committee or in the 
so-called Graham-Miller substitute, at least in its previous 
iterations. This makes it difficult to know whether these provisions 
are good or bad. It is in that sense that these last-minute conditions 
on a critically important bill are not up to the standards the Senate 
should follow, and are not of the urgent necessity that cries out for 
this bill, which is to protect the homeland security of the American 
people.
  There are many good things to say about the substitute in a number of 
areas. The bill has made real progress from earlier proposals, both 
from the President and from our Republican colleagues. I am grateful, 
once again, as in the previous Gramm-Miller substitute, the overall 
architecture and composition of the proposed Department of Homeland 
Security is quite similar to what we conceived in the legislation 
approved by the Governmental Affairs Committee, first on a partisan 
vote in May and then unfortunately in a bipartisan vote in July of this 
year.
  This bill, the substitute, would create a new Department with major 
provisions responsible for border and transportation security, 
intelligence, and critical infrastructure protection, emergency 
preparedness and response, science and technology, and immigration 
services.
  This bill is nearly identical to the bill approved by the 
Governmental Affairs Committee in deciding which domestic defense-
related agencies and offices should be transferred and how they should 
be organized. In fact, when we say, as has been said so often in this 
debate in this Chamber, that there is agreement on 90 to 95 percent of 
what we should be doing here with regard to homeland security, that is 
what we mean. We mean we agree on the big picture, if I may put it that 
way. That is a big deal.
  We recognize that today's terrible vulnerabilities are there and we 
agree not only on the need for a comprehensive reorganization to close 
those vulnerabilities but almost all of the components that have 
reorganization.
  Today, homeland security is institutionally homeless--everyone is in 
charge and therefore no one is in charge. Under this substitute, as 
under our committee-approved legislation, that will no longer be the 
case. Under this bill, as under our bill, for the first time we would 
bolster emergency preparedness and response efforts to ensure that all 
areas and levels of government are working together to anticipate and 
prepare for the worst. Today, the fact is that coordination of our 
homeland security agencies is the exception, not the rule. That is 
unacceptable.
  Under this bill, as under our bill, for the first time we will have a 
single focal point for all of the intelligence available to our 
Government so it can be properly fused and analyzed, and so that we 
will enhance our ability to deter, prevent, and respond to terrorist 
attacks.
  This was clearly one of the most glaring weaknesses of our Government 
leading up to September 11, 2001, as the excellent work done by the 
Joint Intelligence Committee investigations has made clear.
  Under this bill, again as under our committee bill, for the first 
time we would build strong bonds between Federal, State, and local 
governments to target terrorism. State and local officials are on the 
front lines of the fight against terrorism, as we learned so clearly 
and painfully in the death tallies of the September 11 heroes. Today, 
local communities are waiting for better training, for new tools, and 
for coordinated prevention and protection strategy. And this proposal, 
as under our committee bill, would accomplish that.
  Under this bill also, as under our committee bill, for the first time 
we would bring key border and national entry agencies together to 
ensure that dangerous people and dangerous goods are kept out of our 
country without restricting the flow of legal immigration and commerce 
that clearly nourishes our Nation. Today, threats to America may be 
slipping through the cracks because of our disorganization, and that is 
indefensible.
  Under this bill, as under our bill, for the first time we would 
promote significant new research and technology development 
opportunities and homeland defense. The war against terrorism has no 
traditional battlefield. One of the untraditional battlefields where we 
must fight to emerge victorious is the laboratory. Today these efforts 
are dispersed and often blurred. That is unwise. We cannot tolerate 
this any longer.
  Under this bill, as under our bill, for the first time we would 
facilitate close and comprehensive coordination between the public and 
private sectors to protect critical infrastructure. Fully 85 percent of 
our critical infrastructure is owned and operated by the private 
sector. We are talking here about electric grids, transportation, food 
distribution systems, cyber-systems, and the like. We have to close 
vulnerabilities in those systems before terrorists strike them. To do 
so, we have to be working with the private sector.

  In all of these areas, this piece of legislation, the substitute, 
will usher in, I am confident, a much more secure nation. Beyond its 
overall structure, I am also pleased the substitute has moved toward 
our committee-approved bill in a number of specific areas, namely 
intelligence, science, and technology, workforce improvement, and 
appropriations. I want to discuss these each briefly now.
  First, intelligence. The President's initial proposal had a very 
limited conception of the intelligence powers and responsibilities of 
the new Department. The intelligence provisions in this bill borrowed 
heavily from our legislation, and as a result will give our Government 
a much better opportunity to avoid repeating the disastrous disconnects 
that prevented us from connecting those dots before September 11.
  First, the bill would, like our committee legislation, make it clear 
that the purpose of the new Department's information analysis function 
includes fusing, analyzing, and disseminating intelligence to deter, 
prevent, preempt or respond to all terrorist threats against the United 
States. That is a central change from the President's initial, more 
limited conception of an intelligence division designed primarily to 
protect our critical infrastructure. We argued that was inadequate 
because--well, the World Trade

[[Page S11003]]

Center itself, and the Pentagon, are not parts of our traditional 
critical infrastructure, nor are shopping malls and places of public 
gathering which terrorists unfortunately strike.
  This substitute also made progress in priority setting. It gives the 
Under Secretary the authority to work with the Director of Central 
Intelligence and other agencies to establish intelligence collection 
priorities and insures that the Department of Homeland Security will be 
at the table with the rest of the intelligence community when 
intelligence requirements and priorities are established.
  Finally on this point, the bill does seem to have moved closer to the 
committee bill on the crucial issue of access to information by giving 
the new Department access to information except in cases where the 
President objects.
  However, some differences do remain on intelligence. Rather than 
creating separate Senate-confirmed Under Secretary positions to oversee 
intelligence analysis and infrastructure protection, the substitute 
creates Assistant Secretaries within the same division of the new 
Department. In my view, intelligence and infrastructure protection 
should each be led by a separate Senate-confirmed Under Secretary, each 
of whom can bring the necessary clout, attention, resources, and 
attention to those complex and different challenges. The access to 
information provisions--Senator Specter and I agree, and he may also 
have an amendment on them--also could be enhanced.
  On the whole, however, this critical function of the Department, 
intelligence, has been greatly improved in this substitute. The 
Department created by this bill will systematically organize, 
scrutinize, and bring together all relevant data in order to much 
better protect the American people from terrorism.
  Science and technology next. So, too, has this substitute moved 
toward our legislation on science and technology. Our committee worked 
very hard to give this new Department the creative abilities it needs 
to develop and deploy a full range of technologies to detect and defeat 
danger on our home soil.
  In World War II, of course, we had the Manhattan Project, scientists 
who came together to design revolutionary weaponry which was ultimately 
decisive in that war.
  In the war against terrorism here at home, we need revolutionary 
defense technologies, machines that can scan for dangerous materials--
biometric identification systems, information analysis software, 
vaccines and antidotes to deadly pathogens--poisons. The list goes on 
and on, most of it probably at this moment unimaginable in detail but 
critically important to our future security.
  I am very gratified to see the substitute before us provides for a 
Directorate of Science and Technology headed by a Senate-confirmed 
Under Secretary, a Homeland Security Advanced Research Projects Agency 
that is modeled after DARPA in the Department of Defense, federally 
funded research and development centers to provide analytical support 
to the Department, and a mechanism for allowing the Department to 
access any of the Department of Energy laboratories and sites.
  All of these were not included in the President's original homeland 
security proposal. I am grateful to the authors of the substitute for 
including them now.
  There are some other points of progress in the bill I think are worth 
noting.
  First, thanks I gather in large measure to the effective advocacy by 
the senior Senator from Alaska, Senator Stevens, and unlike the 
President's original proposal, this substitute has wisely preserved 
congressional accountability over spending by the new Department--after 
all, that is our constitutional role--and in doing so has rejected the 
administration's call for expansive authority to shift money among 
accounts--appropriated money, the public's money--without approval by 
Congress.
  Second, this bill has made significant strides in safeguarding the 
Department's integrity, cost-effectiveness, and respect for individual 
rights.
  The original Gramm-Miller substitute, offered on behalf of the 
administration, would have created a department without a civil rights 
officer or privacy officer, and with an inspector general over whom the 
Department's Secretary would have had unprecedented authority, thereby 
making it possible that the inspector general's independence would have 
been compromised.
  In this new substitute now pending, there is once again a civil 
rights officer in the Department, there is a privacy officer, and the 
Secretary's authority over the inspector general has been substantially 
checked.
  I wish the improvements had gone further. Our committee-endorsed 
bill, for instance, would have given the civil rights officer and the 
inspector general more authority than the substitute does and, 
therefore, help assure a new Department of Homeland Security that would 
more likely adhere to the highest standards of values and conduct. But 
I am grateful for what has changed in this substitute.
  Finally, I am pleased that the substitute amendment has incorporated 
the entire Federal workforce improvement bipartisan proposal developed 
by Senators Akaka and Voinovich, both distinguished members of our 
Governmental Affairs Committee. That reform package will help this 
Department and all other Federal Departments attract, retain, and 
reward the best talent with the help of new personnel management tools 
and management flexibility given to the new Secretary.
  Mr. President, unfortunately, as I said at the beginning, there is 
some bad news. That was the good news in the substitute. There is some 
bad news as well.
  While this bill, as I have just indicated, does incorporate, 
particularly in the Akaka-Voinovich agreement, some substantial human 
capital reforms for the Federal workforce, it unfortunately also takes 
a step backward in other related areas. On the personnel issues--the 
Federal workforce issues that became such an unfortunate wedge between 
us here in this Chamber for so long--I must say I am not happy with the 
outcome. I don't want to rehash the arguments for and against keeping 
civil service protections in place and giving union representative 
employees basic protection against having their rights arbitrarily 
terminated. But let me just say this. What motivated us all along was a 
desire to ensure this new Department would from day one have not only 
the best leadership, the most sensible organization, and the resources 
necessary to do the big job we are giving it, but that it would also 
have the highest quality and best motivated workforce it could possibly 
have; that we would not begin the history of this new Department with 
expressions of suspicion about the commitment--even perhaps the 
patriotism--of these Federal employees, but that we would engage them 
together as part of a team, as respected members of the team, and 
indeed as those members of the team who would be doing the critical 
work every hour of every day to protect the security of the American 
people at home.

  We often in our debate referred to the events of September 11 and the 
fact that those firefighters and police officers who we honored for 
their heroism, who we mourned for the ultimate sacrifice that they 
gave, were all members of unions, were all governed by civil service 
rules. But in the hour of crisis, in the hour of public need, not a 
single one of them but for a second thought about their union rights, 
or their collective bargaining agreement, or their civil service 
agreement. They rushed to the duty that they had, and accepted it as 
public employees.
  At one point a few months ago, a group of us met with a battalion 
chief from the New York City Fire Department. He told us that on that 
day, September 11, he was off duty with a group of friends who were off 
duty. When they heard the planes had hit the World Trade Center, they 
just rushed to the scene. He talked about terrible frustration and 
heartbreak because some of his colleagues, when they got to the scene, 
were told they could not go into the building to try to rescue those 
who were there. That is what public service is about. Civil service 
protections and collective bargaining rights never come between public 
employees and their obligation or responsibility to do duty. It was 
shown over and over again by the Federal employees in the departments 
and agencies that will be consolidated into this new Department.

[[Page S11004]]

  On this front, this substitute continues to be a disappointment to 
me. The bill fails to correct major problems in the previous Gramm-
Miller substitute, and, as a result, I fear, invites politicization, 
arbitrary treatment, and other personnel abuses in the Federal 
Government in a way that may damage the merit-based workplace Federal 
employees and the American people--we the American people--who these 
Federal employees serve and in this new Department must protect have 
come to depend upon.
  I hope, of course, that what many fear does not occur and that if, or 
probably when, this substitute passes, this and future administrations 
will not overstep their bounds, will not unfairly use the unprecedented 
authority they are given in parts of this legislation, and will not 
undermine thereby the effectiveness of the new Department.
  I must say I still personally fail to understand why any President 
would need to remove collective bargaining rights from unionized 
employees who have a long and proud history of helping to protect the 
homeland, as the 45,000-some employees who will be unionized of the 
170,000, who will be moved to this Department, and who will continue to 
do exactly the same work they have done for decades.
  While previous Presidents have had the same authority and have not 
exercised it to remove their collective bargaining rights, they will 
continue to do that work in this new Department. If and when this 
President or any future Presidents should decide to eliminate 
collective bargaining within a unit of the Department--as they will 
have the legal power to do if this substitute passes unilaterally--I am 
confident the Congress will not just sit back and watch.
  We will expect the President to take such a step only if it is truly 
essential to national security and not merely a management convenience 
or an ideological compulsion. We will expect the Department's 
leadership will have first made good-faith efforts to work 
cooperatively with their employees who are union members, determining 
that union representation is in fact incompatible with national 
security. We will expect the explanation the President provides to 
Congress, required under this substitute, to be thorough. The 
administration for its part has said, particularly in recent days, it 
is not out to break Federal employee unions, but only to retain an 
extraordinary authority that has been exercised only a handful of times 
over the last four decades. We in Congress and our successors and I 
believe the American people will hold both this President and his 
successors to that promise.
  When it comes to the creation of a modified personnel management 
system, we expect the employees in the new Department will be hired, 
promoted, disciplined, and fired based only on merit. We expect that if 
and when existing civil service rights and protections are altered or 
removed, the administration can demonstrate a clear need for doing so 
in the context of the homeland security mission of the Department. We 
expect fair and independent procedures will be maintained for all 
employees with grievances, especially those who allege abuse or 
corruption within the Department--whistleblowers. We expect changes to 
the system will be carefully crafted through negotiation and 
collaboration with employees and their representatives at all levels, 
from the rank and file to top echelons of management. And if a 
disagreement arises, or an agreement is not possible to obtain, the 
required 30 days of mediation and negotiation between the 
administration and the unions will be substantial and in good faith, 
not cosmetic.

  The administration has pledged not to undermine the integrity of a 
merit-based public-sector workplace. Here again, the American people 
and we in Congress will be watching, and watching carefully.
  Let me discuss a few other concerns that I have about the substitute. 
On immigration, this bill takes what, in my view, is a step backward 
from our committee-approved legislation by splitting the Immigration 
and Naturalization Service programs between the Border Directorate, 
where all immigration enforcement will be housed, and a new Bureau for 
Citizenship and Immigration Services, which will handle immigration 
services.
  I am concerned that this configuration may diffuse responsibility for 
immigration policy and coordination among a large number of officials. 
And it is contrary to the earlier bipartisan Kennedy-Brownback 
immigration legislation.
  I am also troubled that the bill weakens provisions we had carefully 
developed to ensure that the independence of immigration courts would 
be preserved and that vulnerable child aliens would not be lost in the 
shuffle to the new Department.
  I regret that the bill would shield private-sector information that 
is voluntarily submitted to the new Department from the Freedom of 
Information Act from being used in civil litigation and even from 
release by State and local governments under their own sunshine laws. 
That is a major retreat from the carefully crafted bipartisan Bennett-
Levin-Leahy compromise that was included in our committee bill and in 
the Gramm-Miller substitute in its original form, and is of particular 
concern to community groups, workers, environmental advocates, and 
watchdogs who depend on access to this information to help them reduce 
environmental health and safety risks to themselves, their families, 
and the public.
  In addition, out of the blue, if I may phrase it that way, this 
substitute includes a provision that had not been seen in any previous 
proposals regarding homeland security, and that would take complaints 
about vaccine additives out of the courts and require them to be made 
through the Federal Vaccine Injury Compensation Program.
  That would affect potential claims involving the mercury-based 
preservative thimerosal. Because there are a number of class action 
lawsuits pending on this issue, this is a highly controversial and 
complicated issue, one that the relevant committee of the Senate, which 
has been working on it, the HELP Committee, has not been able to come 
to a consensus on after several months of deliberation.
  So why is this provision being rushed through now in the context of 
homeland security legislation in a way that makes it very hard for us 
to reach a proper conclusion, though we have very significant fears 
that rights of injured parties are being severely limited?
  The bill also omits a vital provision in our bill that would have 
provided $1 billion for each of the fiscal years 2003 and 2004 to local 
governments to hire firefighters. This provision, sponsored in our 
committee, and cosponsored--again, bipartisan--by Senators Carnahan and 
Collins, would create what is effectively a firefighter's version of 
the immensely successful and productive and valued COPS Program that we 
created in the 1990s. I believe it started in 1994 for police officers 
locally.
  After September 11, the firefighters are people we depend on, 
particularly in an emergency. The fire departments have taken on new 
responsibilities throughout the country post September 11 and are doing 
more hiring, so we need to help them pay for their new personnel. We 
need to help them train and equip those personnel. Unfortunately, that 
pathbreaking, productive, progressive provision has been taken out of 
the substitute.
  Mr. BYRD. Mr. President, will the Senator yield?
  Mr. LIEBERMAN. I will yield for a question from the Senator from West 
Virginia.
  Mr. BYRD. My question is this: The distinguished Senator is pointing 
out some very glaring differences between the bill--I call it a bill. 
Is this the hydra-headed monster that has come over from the House in 
the last 24 hours or so? And is this the item before the Senate today? 
And is this the vehicle to which the distinguished Senator from 
Connecticut is addressing his remarks? That would be my first question.
  Mr. LIEBERMAN. Through the Chair, I thank the Senator from West 
Virginia.
  The House, last night, adopted a proposal which I gather is 
essentially the same, perhaps totally the same, as this substitute 
which was offered yesterday by Senators Thompson, Gramm, and Miller.
  Mr. BYRD. So what we have before the Senate--Mr. President, will the 
Senator yield further?
  Mr. LIEBERMAN. I will.

[[Page S11005]]

  Mr. BYRD. What we have before the Senate is a massive piece of 
legislation with 480-odd pages, that has been virtually dropped into 
our laps within the last 36 hours, allowing for yesterday and thus far 
today. This is a virtually new bill, as I see it; is it not? It is 
something that was--I read about it in the newspapers--something to the 
effect this is a compromise that was passed by the House and sent to 
the Senate. It is now under discussion in the Senate.
  The distinguished Senator from Connecticut is performing, as I see 
it, a great service in addressing his remarks to this monstrosity. That 
is my word for it. It is a monstrosity. It is almost 500 pages, and it 
is just suddenly dropped into our laps. This is not the bill which came 
out of the committee chaired by the Senator from Connecticut, is it?
  Mr. LIEBERMAN. I thank the Senator. As I said at the outset of the 
remarks I am giving here, there is a lot that is in this substitute 
that has, in fact, been taken from our committee bill. But as I am 
enumerating now, there is a lot also that has been added, and some of 
it really at the last moment.
  Some of it is compromise legislation, for instance, on the question 
of Federal worker rights, which we have been debating here for several 
weeks now. But some of it, such as the provision on child vaccine and 
the liability of pharmaceutical companies in cases of injury from that 
vaccine, we have never seen in any of the many forms of homeland 
security legislation that have been introduced or discussed, and not 
only in the Senate but I believe in the House as well.
  Mr. BYRD. Mr. President, will the distinguished Senator yield for a 
further question?
  Mr. LIEBERMAN. I will.
  Mr. BYRD. Mr. President, in speaking of the vaccines, as you know, in 
this town, and in this Chamber, there is often a great deal said about 
pork, about pork, and particularly with reference to appropriations 
bills.
  This seems, to me, to be some pork--some pork--in this bill for the 
pharmaceutical companies.
  That is what it sounds like. I believe the distinguished Senator from 
Illinois will later have something to say about this, possibly have an 
amendment in regard to it. That was kind of what I understood from a 
conversation earlier today. It sounds to me as if this is something 
brand new to the distinguished Senator from Connecticut.
  What I am leading up to is this question: Here we have a bill we are 
being asked to pass virtually sight unseen. We have had yesterday and 
thus far today to study this new vehicle that has come to us from the 
House, passed by the House, I believe. And this vehicle itself did not 
come before the committee that is so ably chaired by the distinguished 
Senator from Connecticut. This is a new piece of legislation, virtually 
sight unseen in many ways. There are many parts of it, of course, that, 
as the distinguished Senator from Connecticut has indicated, were 
probably lifted out of the measure which he and the other members of 
his committee, both Republicans and Democrats, reported from that 
committee some several months ago, that bill we referred to back in 
those days as the Lieberman substitute.
  Mr. LIEBERMAN. I remember those days fondly.
  Mr. BYRD. Yes, I remember them fondly also.
  Mr. LIEBERMAN. I thank the Senator.
  Mr. BYRD. But I am very disturbed by the fact that here we have 
before the Senate a measure which is in many ways a measure that has 
not been seen, studied, except for the few hours of yesterday and today 
we and our staffs have been able to allot to it. This is something new, 
and we are going to be asked to vote on cloture on this vehicle, this 
piece of legislation. We are going to be asked to vote on cloture by no 
later than tomorrow on this matter, and we don't know what is in it. I 
don't know what is in it. I have had my staff on it since yesterday 
when it first made its appearance in my office in the form of several 
separate pages which I hold in my hand, various and sundry pieces of 
it, almost 500 pages.
  Here we are going to be asked to vote on cloture on this measure 
tomorrow. I hope we don't invoke cloture. I hope Senators will not vote 
to invoke cloture on this matter tomorrow. The Senate is entitled to 
have more time in studying this measure before we vote on it. The 
American people are entitled to know more about what is in this bill as 
it comes to us now from the House, what is in the bill before we vote 
on cloture. I think people are entitled to that.
  I say to the distinguished Senator from Connecticut, again, he is 
performing an extremely important service to the Senate, to his people, 
and to the people of the United States. I was in my office when I heard 
him talking. I heard him talking about the vaccines. I heard him 
talking about other areas of the bill which are new to him, some of 
which he had not seen. He indicated they are new to him.
  Why should we vote? I ask this question. The distinguished Senator 
may not wish to answer it right now, but it is a question. I am within 
my rights to ask the Senator a question, if he is willing to listen to 
my question. Perhaps this is a rhetorical question. But why should 
Senators invoke cloture? Why should Senators vote to invoke cloture on 
a measure when they don't know what is in it? Many of them did not know 
what was in H.R. 5005 before the August recess, and many of the 
Senators, I assume, did not know a great deal about what was in that 
bill even after we debated it for a considerable length of time.
  The distinguished Senator from Connecticut has put most of the summer 
and a great deal of the spring of this year into his bill. He and his 
committee have worked hard. Mr. Thompson and others have worked hard on 
this homeland security bill.

  I will take my own time on the floor later today to say these things, 
but I will just say this: We are being importuned by this 
administration, by this President, to vote quickly on this bill 
creating a department of homeland security. I think it is irresponsible 
of the administration to insist upon the Senate's acting on this 
legislation in such a great hurry.
  One might say, well, they have had all summer. But we have not had 
all summer. We have something new here that was just brought into the 
Senate yesterday, and we are being importuned to vote for this 
legislation before we go out of session, presumably maybe at the end of 
next week, maybe not. But I think it is most irresponsible for the 
administration to put this kind of pressure on the Senate, especially 
when the administration has turned its back on appropriations bills 
that have been reported from my committee, the committee chaired by me 
and the ranking member, Mr. Ted Stevens, former chairman of the 
Appropriations Committee and soon to be chairman again.
  I think the administration has had before it these various and sundry 
appropriations bills, many of which contain homeland security 
appropriations. Yet this administration has put the pressure on the 
other body, the Republican-controlled House, not to pass those 
appropriations bills.
  There was homeland security. There was real homeland security. If the 
administration would just have taken the bonds or the chains or the 
handcuffs off the House and let it act on those appropriations bills, 
there is homeland security. If we really want to do something for the 
people, do it fast for them--and I will go into this in greater length 
later today--there was the chance. Instead of putting the pressure on 
that, instead of pushing hard to get the appropriations bills through 
and get them down to the President so he could sign them, the 
administration has instead put great pressure on the Senate now to pass 
this homeland security bill.
  Yet we don't know what is in the bill. We haven't had much time.
  My question is--the Senator may not want to answer it--does he not 
think that the Senate ought to take more time before invoking cloture? 
I respect the fact that sooner or later cloture will be invoked. But it 
wouldn't hurt--I will say this on my own--for this bill to go over 
until next year when we could have more time to look at the 485 pages--
I may be missing one or two--so that we could take our time and know 
what we are voting on.
  They will say: Something may happen. The terrorists may strike. We 
need to get this done.
  Let me say to my dear friend the Senator and other Senators and to 
the

[[Page S11006]]

Chair: Passing this bill won't make one whit of difference if a 
terrorist attack occurs tonight, tomorrow, next week, next month. 
Passing this bill will not make one whit of difference. The people who 
are to protect us under this bill, if we ever get the bill passed and 
get it implemented, this new department up and running, the people who 
will be ensuring the safety of the American people under this bill are 
out there right now: Immigration and Naturalization Service, the 
Customs Bureau, the policemen, firemen, the emergency health personnel, 
the border security personnel, the security at the ports. These people 
are out there now. They are out there every day.
  This bill, only for political reasons, is going to amount to a hill 
of beans. That will be all it will be worth. They can say, well, they 
passed the bill. But it won't make the people of this country a bit 
more secure.
  As a matter of fact, they will be lulled into a feeling of security 
when they will be very insecure with this bill--as much so, or more, 
perhaps, than if we didn't pass it. I am one of those who, first, may I 
say to my friend--if he will allow one further comment and then my 
question--I am one of those who first advocated a Department of 
Homeland Security; I am one of the first to advocate it. But I have had 
the bitter experience of trying to get the Director of Homeland 
Security up before the Appropriations Committee, and Mr. Stevens, the 
ranking member, joined me in inviting Mr. Ridge up before the 
committee, but the President said no. He put his foot down and said, 
no, he is on my staff; he doesn't have to come. We had no alternative 
but to go ahead with the seven department heads and various and sundry 
mayors and Governors throughout this country, and police organizations, 
health organizations, firemen organizations, and so on.
  We came up with a good bill. But in that bill, we also included 
language that would have required the Director of Homeland Security to 
be confirmed by the U.S. Senate. So we said, OK, it won't be done by 
invitation; you will come because you are going to have to be confirmed 
by the Senate, and then you will come. So the administration saw that 
coming down like a Mack truck. They saw it coming down the track. It 
passed the Senate with 71 votes--at least 71, as I recall. There wasn't 
a finger raised against that provision, not an amendment offered to 
strike that provision; and the administration saw that bearing down on 
them like a Mack truck, so they rushed to get ahead of the wave, which 
they are pretty good at doing. Out of the bowels of the White House, 
they hatched this idea of homeland security, and here it was--not here 
it is. This is something new. It came up here. This Department of 
Homeland Security had been hatched by Mitch Daniels, Director of the 
Office of Management and Budget, and by Andrew Card, and by Tom Ridge, 
and Mr. Gonzalez, the White House counsel. Those four eminent public 
officials hatched up this great, grand idea and unveiled it.
  The President called us down for the unveiling. I remember, he said 
he had to go to St. Louis to make a speech, but before he went, he said 
he had this package. He didn't explain what was in the package. He 
referred to it as ``this package.'' He wanted to see this package 
passed quickly and he was going to have to go to St. Louis and make a 
speech. I seldom go down to the White House. I am not invited much 
anymore, but I am not crying about that. I don't want to go down there, 
as a matter of fact. I went down when I was majority leader and 
minority leader and majority whip so much that I got tired of going. 
Others may have the pleasure. But on this occasion I went.
  The President said here we have this package, and he said he wanted 
to thank the Members of Congress for their input. I scratched my head. 
What input is he talking about? The Members of Congress haven't had any 
input. He said, ``I have to hurry and go to speak.'' He called on the 
Speaker for a few words. He called on the distinguished Republican 
leader here, and he called upon the distinguished Democratic leader, 
and he called upon the distinguished Democratic leader in the House, 
and then he was finished. He didn't call on me. I was just invited to 
come as an ornament, I suppose, one that is not often seen by people at 
the White House.
  In any event, the President started off to make that speech in St. 
Louis. I said, ``Wait a minute, Mr. President. I heard you say 
something about this package, how you want this passed. I don't know 
what is in this package.'' Then he said to somebody down the line that 
may have been a Member of the House, may have been a Democratic leader 
there--I don't recall--maybe I do, but I don't need to say. Anyhow, 
when reference was made to this ``thing,'' that we need to pass this 
thing in time for the first anniversary of September 11, I said, ``I 
heard something said about this `thing,' that we need to pass it in 
time for the first anniversary. I don't know what this `thing' is.''

  I kind of dismissed it in my feeble way, in that manner, saying I 
didn't know what they are talking about, this thing, this package. 
Nobody explained this ``package'' to me down there. Nobody explained 
what this thing was down there. So I came back up to the Hill, knowing 
little more than I knew when I went down.
  I say all that to say this: Here, today, we don't even have the 
``package'' they had that day. We don't even have the ``thing'' they 
were talking about that day. Here is a brand new animal that has been 
brought in here--480-odd pages--and they are saying we have to pass it. 
The Senator and I and others are going to be asked to vote for cloture 
on this ``thing''--the new thing.
  My question is, does not the Senator feel it would be time well spent 
if this Senate did not invoke cloture tomorrow, or maybe the day after, 
or next week, but would it not be time well spent if the Senate took 
the necessary hours to carefully study what is in this new package that 
has been dropped on our desks not more than 6 hours ago? Is that a fair 
question?
  Mr. LIEBERMAN. I thank the Senator from West Virginia. It is a fair 
question. I would like to answer it by continuing to outline some of 
the shortcomings in the substitute before us, and then offering a 
conclusion, and then I will yield to the Senator from Illinois, who has 
been waiting to be recognized.
  I thank the Senator from West Virginia for his comments and his 
recollection of the history here.
  Mr. BYRD. Also, the Senator has made some valuable contributions 
today by pointing out already some of the differences that he sees in 
the new language. So it seems to me--I will answer my own question--
that we need to take more time than just tomorrow in invoking cloture 
on this bill. We owe it to ourselves and to the people.
  We are creating a brand spanking new, big, massive Department. In 
this package, we are going to make a massive transfer of power to the 
executive branch. I plead to Senators that they not vote for cloture on 
this tomorrow. At least give us another week.
  I thank the distinguished Senator for his patience, which is a 
customary characteristic of his. I value him, and I am going to listen 
with great interest to what he continues to have to say about this 
measure.
  Mr. LIEBERMAN. I thank the distinguished Senator from West Virginia 
once again. I mentioned, when the Senator asked a question or two, 
about the omission from the bill of the program that our committee 
created, which would have authorized a COPS-like program for 
firefighters, which would be critically important to local fire 
departments all around America, who are already spending more money to 
get ready to protect their people from terrorist attack. I want to go 
on with a few more of what I call the bad news in the substitute. The 
substitute also grants--it's ironic that I come to this moment now, but 
it grants the Secretary of the Department of Homeland Security broad 
reorganization--I'm sure Senator Byrd will speak to this later in the 
day--with no need for congressional approval. The President would 
simply submit a reorganization plan to Congress within 60 days after 
enactment. No congressional approval would be required, as it would 
under both Gramm-Miller and our committee bill. Only notice.
  The substitute also contains a sweeping liability protection 
provision that eliminates punitive damages and provides other caps and 
immunities from

[[Page S11007]]

liability for any products that the Secretary of the new Department of 
Homeland Security certifies as antiterrorism technologies.

  This provision, if construed broadly, could do serious damage to 
individuals' rights. The Secretary must simply designate that a new 
technology is antiterrorism-related, and the exemption and the 
protections that are provided by this section of the bill go into 
effect.
  Perhaps the most egregious flaw is the bill would cap liability at 
the limits of a seller's insurance, meaning people who allege they have 
been injured by one of these technologies certified by the Secretary 
can go either completely or partially uncompensated even if a seller 
who is liable has more than enough money to compensate them because the 
provision of this bill says the limits of liability are the limits of 
coverage of the seller's insurance.
  Even if, as I read this provision, the seller has assets and the 
plaintiff has proved that his or her injuries are the result of 
negligence by the seller, the liability is capped at the limit of the 
insurance policy. That is a significant change in tort law.
  At various times in this Senate, I have been quite active in 
advancing what is broadly called tort reform. This section some may 
describe as tort reform, but I think it goes way over the line in 
compromising the rights of individuals under our system of negligence 
and tort law.
  Finally, the bill fails to include a package of vital information 
technology reforms initiated by Senator Durbin, who will speak soon, 
and cosponsored by Senator Thompson and myself that were included in 
our committee-approved legislation. This amendment would dramatically 
improve the way data is managed in the new Department, and that will be 
central to the Department's effectiveness of protecting the security of 
the American people at home.
  It would also improve the way data is managed throughout all agencies 
related to homeland security by allowing agencies to share and 
integrate their data swiftly and seamlessly. By failing to tackle 
information technology management, the substitute misses a huge 
opportunity to fix one of the most frustrating bureaucratic barriers to 
effective homeland security, and it will be a shame if this provision, 
which is noncontroversial, is omitted from the substitute.
  Finally, I wish to say briefly, because I spoke to this yesterday 
when Senator McCain and I offered the amendment, I was deeply 
disappointed to find that the substitute bill fails to include an 
independent citizens commission to investigate the September 11 
attacks. How can we learn from the past if we do not face up to our own 
failures honestly and directly and bravely? How can we reassure the 
American people we are taking every necessary step to protect them 
against terrorism if we are unwilling to scrutinize every agency in our 
Federal system unflinchingly?
  The answer, unfortunately, is we cannot. That is why the homeland 
security legislation our committee proposed was amended by the Senate 
by a resounding, overwhelming bipartisan vote of 90 to 8 to include a 
provision offered by Senator McCain and me and others to create a 
bipartisan, nonpolitical blue ribbon commission to investigate the 
Government's failures in all the years leading up to September 11.
  In fact, the earlier iteration of the so-called Gramm-Miller 
substitute embraced, after the Senate spoke so resoundingly, that same 
idea for a bipartisan commission. Yet this substitute omits that 
proposal. That is outrageous and unacceptable. We should not accept it, 
and I can tell you that the families of the victims of September 11 do 
not and will not accept it.

  Senator McCain and I said yesterday, and I repeat today, that we, and 
I am sure many others on both sides of the aisle, will be persistent 
and steadfast and continue to search for and find every possible 
vehicle and method we can to get this independent commission to 
investigate September 11 adopted.
  Let me now say by way of conclusion, I have tried to describe the 
good parts of this bill because, again, most of the proposals in the 
bill, the overall architecture of the new Department, and most of the 
specific provisions are taken from the bipartisan legislation that 
emerged from the Governmental Affairs Committee in the Senate, which I 
have been privileged to chair.
  In fact, in some significant ways that I have outlined, this second 
iteration of the Gramm-Miller substitute has been improved to take in 
even more parts of our initial proposal. We have all learned together 
how to improve this legislation. That is all to the good.
  I do disagree respectfully with my dear colleague from West Virginia 
because I believe there is an urgent necessity now to better organize 
our homeland defenses because the current disorganization was part of 
the cause of September 11. The continuing disorganization is dangerous. 
Yes, the various agencies are out there, but as I said at the beginning 
of my statement, everyone is in charge, therefore no one is in charge. 
We need to bring these agencies together. We need to eliminate overlap 
and save some money by doing that. We need to make them more efficient 
and, most of all, have a clear line of accountability.
  There remains--and this really gnaws at me, and I know many Members 
of the Senate--a disconnection between too much of our intelligence 
community apparatus and law enforcement apparatus, including State and 
local law enforcement, and that disconnection means we do not have in 
one place all the information that can telegraph to this new agency 
that a terrorist attack is coming and give us the time to stop it 
before the terrorists act. This agency will create such an intelligence 
division now. The urgent necessity for a new Department has to be 
weighed against the shortcomings and the late additions that I have 
described.
  I cannot repeat the plain facts about our persistent vulnerabilities 
often enough. I have said them before and I will repeat them. The 
writer H.G. Wells once said:

       Adapt or perish, now as ever, is nature's inexorable 
     imperative.

  Adapt or perish, and that is our challenge and our choice today. 
Adapt to the new terrorist threat or grow weaker and watch some of our 
fellow Americans perish.
  Adapt to build on our strength and our ingenuity, or continue to have 
the American people live in fear.
  Adapt or have your children grow up feeling that they are at the 
mercy of our terrorist enemies, no matter how strong we are in 
conventional military power, in economic strength, in cultural 
strength, in values, rather than seize the moment and control our own 
destiny through our strength and the organization of it.
  A bill creating a Department of Homeland Security led by a strong and 
accountable Secretary will make sure that our domestic defense efforts 
do adapt to this new threat. It is really a source of continuing regret 
and frustration that the substitute comes to us now not only with 
compromises that have been made that are less than I would have liked--
very few of us get exactly what we would like in legislation; that is 
the nature of the process--but that irrelevant and very troubling 
additions have been made to the legislation, and that is the balance 
that we are going to have to strike.
  For my part, I have filed several amendments by the 1 o'clock 
deadline today to strike various parts of this substitute that I think 
are not only marginally relevant but, in some cases, totally irrelevant 
to the central task of homeland security, and not only do not add but 
subtract from the rights and freedom from fear of the American people.
  It is nonetheless urgent to go forward and act on this measure. I, 
for one, do intend to vote for cloture to bring this debate to a 
conclusion, but I have attempted to fashion the amendments I have filed 
in a way that cloture will not prevent me from obtaining a vote in my 
attempt to strike some of the objectionable and unnecessary provisions 
of this substitute proposal.
  ``Adapt or perish, now as ever, is nature's inexorable imperative,'' 
those words of H.G. Wells speak to each one of us as we balance the 
good and bad in this substitute and decide how to vote.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Madam President, I express my gratitude to the Senator 
from Connecticut, the chairman of the Governmental Affairs Committee. I 
do not

[[Page S11008]]

believe those following this debate, unless they have watched it for a 
long time, can appreciate the amount of time and effort that has been 
put into this bill by Senator Lieberman and his staff. The record and 
history will demonstrate that before the President introduced a 
Department of Homeland Security, Senator Lieberman not only introduced 
one, which I was proud to cosponsor, but passed it favorably from the 
Governmental Affairs Committee without the support of a single 
Republican Senator.
  There was some confusion on the Republican side as to what the 
President's intentions were, but there was no confusion on the 
Democratic side. Senator Lieberman believed, and still does, as I do, 
that a Department of Homeland Security is important for the defense of 
America against the threat of terrorism.
  About 2 weeks after Senator Lieberman's bill passed out of committee, 
the President introduced his own. Senator Lieberman then addressed the 
issue again to make his bill and our bill conform more closely with the 
President's intentions and brought this matter to the floor. There was 
a controversy which ensued. It was an incredible controversy because it 
related to the rights of new employees in this Department. I use the 
word ``new'' advisedly because the 170,000 employees of the Department 
of Homeland Security are already working for the Federal Government.
  With the passage of this legislation and its implementation, they 
will come under a new roof and a new title, but, frankly, they will be 
doing many of the same things they have done for years.
  There was a question as to whether or not we would be able to protect 
these employees who had collective bargaining rights in the new 
Department. It was a contentious issue and one on which the White House 
and many Members of Congress disagreed.
  Senator Lieberman, again in good faith, tried to find some common 
ground. With the help of some of our colleagues, such as Senators 
Breaux and Landrieu of Louisiana, as well as many Republicans, we came 
up with compromise language weeks ago that could have raised this issue 
and moved it forward.
  I say pointblank, there were Members of the Senate who did not want 
this issue resolved before the election. They did not want the 
Department of Homeland Security enacted before the election. They 
wanted to be able to campaign across America suggesting that the 
Democratic Senate had not passed this important legislation. As a 
result, they used every procedural trick in the book. They slowed down 
the process. They refused to have a vote and they got their way. We 
left for the election without the passage of this important legislation 
with the compromise language that had been prepared.
  In many States and many congressional districts across the Nation, 
this became a political issue. Sadly, it had an impact on the election 
far beyond its actual gravity because we could have passed this 
legislation, and sadly, we come today in an effort to try to bring this 
issue to a close in the hopes of doing it before we adjourn for the 
year, before the new Congress comes into session. I certainly hope we 
can achieve that.
  The point has been made by Senator Byrd, Senator Lieberman, and 
others that we were literally given a 484-page document, which passed 
the House of Representatives late last night, which creates this new 
Department of Homeland Security. There are many items in this document 
that are repetitive. Looking back to the President's original proposal 
and the proposal from the Governmental Affairs Committee, a lot of this 
is not new although many things are new. Many of us are trying to 
digest it.

  I was paging through this bill as the debate was ensuing on the 
floor, picking out sections that raised questions in my own mind. If 
one looks around the Senate Chamber, they will see a 484-page bill on 
each desk. By my rough calculation, some 48,000 pages of documentation, 
many of which will never be read, are looked at by colleagues in the 
Senate. I do not say that being critical because, frankly, it is almost 
impossible for an individual Senator to monitor and evaluate every page 
of a bill. We rely on staff and people who we trust to get that done. 
But the fact is this just came over.
  The reason I raise that issue is as soon as I finish this 
presentation, I am going to propose a second-degree amendment to 
Senator Lieberman's amendment which relates to an issue that is 
completely ignored in this 484-page bill on the Department of Homeland 
Security.
  To give a little background, on September 11, 2001, I was in a 
meeting in this building when word came that we had to evacuate because 
of the planes flying into the World Trade Center. With hundreds of 
others, I raced down the steps of the Capitol on to the lawn outside. 
We stood there, not knowing quite what to do next. I heard a sonic boom 
as we scrambled the fighter jets over Washington, DC, to prepare for 
further attack. We could see on the other side of the Capitol the black 
smoke billowing out of the Pentagon. Many of us who are entrusted with 
the responsibilities of serving in Congress were bewildered as to what 
had happened to our country and wondered what we could do, as 
individual Senators and Congressmen, to make it safer. I thought about 
it long and hard, and there is one area on which I decided to focus. I 
do not profess great expertise when it comes to first response in 
fighting terrorism, but the one omission I found that needed to be 
addressed in the administration of our Government was the information 
technology systems, the computer systems used by the Federal 
Government.
  The reason I had been alerted to this problem was that in a hearing 
in the Senate Judiciary Committee a few weeks before September 11 we 
brought in the Federal Bureau of Investigation and, among other things, 
asked them about the state of their computers.
  I am sorry to report to the Senate and those following this debate 
that the computer systems in the Federal Bureau of Investigation, the 
premier law enforcement agency in the United States of America, is 
disgraceful. It reflects a mentality within that agency that has 
resisted change, resisted new technology and, as a result, is currently 
operating with computer systems that small businesses in my hometown of 
Springfield, IL, would reject out of hand as archaic.
  I dare say, we could bring in from anyplace in the United States a 
grade school student who is familiar with computers and they would find 
the FBI computer system laughable. What they are using to fight crime 
in the United States, to track down terrorism around the world, is 
outclassed by computers that can be purchased off the shelf at Sears, 
Best Buy, and Radio Shack. As hard as that may be to believe, it is a 
fact.
  I also might add that we came to learn that the computer systems of 
the major agencies which we are depending on to protect America cannot 
communicate with one another. Would any of my colleagues want to be the 
CEO of a corporation with a variety of different departments and 
offices around America that had computer systems that could not 
communicate with each other? That is a fact today in the Federal 
Government. It is a fact of life, and it is a disgrace. This bill which 
we are considering to establish the Department of Homeland Security 
virtually ignores this problem.
  How could we say to the American people, we are going to create a 
Department to make them and their family feel safer if we do not 
address the most fundamental issue of the exchange of information? In 
my concern over this issue, I decided to try to focus on it. I said 
this is the one thing I will work on. There are 535 Members of 
Congress. Everyone has a different agenda. I am going to try to carve 
out this niche and work on upgrading the computer systems in the FBI 
and creating what they call interoperability, the power of computers in 
different Federal agencies to communicate with one another. I have 
worked on it for over a year. I came up with some ideas based on 
historical experience.

  I looked back in history because others have written of this 
challenge. They make reference to the Manhattan Project. For those who 
are not students of history, that was in 1939, before World War II. 
Before the attack on Pearl Harbor, our scientists in America discovered 
nuclear fission. It was a breakthrough. They knew they had something 
with great potential with the nuclear fission process. They were

[[Page S11009]]

not quite sure what they could do with it on a positive or negative 
basis.
  Then President Franklin Roosevelt created the uranium committee to 
explore the various scientific things that could be done with nuclear 
fission and report back. The committee, like most, did some things but 
did not do them very quickly and did not produce much.
  Then came December 7, 1941. The Japanese attacked Pearl Harbor. 
Within 2 days, President Roosevelt came before a joint session of 
Congress and asked for a resolution of war against the empire of Japan 
and its allies, Germany and Italy, and America was truly at war.
  In August of 1942, President Roosevelt was reminded about this 
uranium committee. He made a historic decision. He put them out of 
business. He said, we want to create a new project under the Army Corps 
of Engineers. We are going to, in this new project, try to take on a 
much bigger challenge. In charge of this project was an individual, a 
commanding officer named General Leslie R. Grove. Under what was called 
the Manhattan Project, we said to General Grove, you have the 
responsibility to gather together in the Manhattan Project the 
scientific, industrial, and military capability of America so that we 
can take nuclear fission and develop weapons that could win World War 
II.
  General Grove is an interesting figure. From what I have read, I 
understand he was a powerful individual. In the course of several 
years, 4 years, he spent $2 billion. This is the early 1940s. In 
today's dollars, that would be $20 billion on the Manhattan Project. He 
developed four bombs, which were detonated over Japan, which brought an 
end to World War II. The Manhattan Project was successful.
  Think about that when we talk about our own computer capability. I 
believe we need a Manhattan Project when it comes to the computer 
information technology of our Federal Government. I believe we need to 
empower a person and an agency to not only look to bring the most 
modern technology to each agency but to determine how they work 
together. That is what is missing.
  The Department of Homeland Security bill, 484 pages long, does not 
even envision this as a challenge to be met. How, then, can we offer 
security to this country? How, then, can we use the best technology and 
scientific resources to make this a safer nation?
  Currently, each of the agencies--the Coast Guard, the Customs 
Service, FEMA, INS, the Secret Service, the new Transportation Security 
Administration, and others--are to be coordinated under this Homeland 
Security Department. They each operate with their own information 
technology system and with their own budget. Needless to say, they do 
not communicate with outside agencies as the FBI or the CIA. These 
agencies already spend about $2 billion a year on information 
technology. The President is asking for $37.5 billion for a new 
Department, which is being gathered from current budgets.
  Let me illustrate for a moment an example of why this challenge is 
important. A few hours ago, we considered port security--I voted for 
it; 95 Senators did--to try to make our ports safer in the United 
States. Of course, representing Chicago and Lake Michigan, I understand 
the importance of port security. Take a ship entering the U.S. waters 
that comes down the St. Lawrence Seaway. It comes into the Great Lakes. 
What happens? Four agencies of the Federal Government collect 
information on that ship. One agency determines whether the ship is 
carrying contraband. Another Federal agency checks whether the ship has 
paid its tariffs and fees. Another agency determines whether the ship 
and its crew comply with immigration law. And another agency checks for 
adherence to health and safety regulations. One ship, four different 
Federal agencies.
  As currently planned, much of this information will end up in 
separate systems--some of them new and expensive. One of those, a $1.3 
billion Customs Services project known as the automated commercial 
environment, is an import processing system. Another, the student 
exchange and visitor information system, is being developed by the 
Immigration and Naturalization Service. Other border protection is held 
on databases held by the Coast Guard and by the Department of 
Agriculture.
  The new Transportation Security Administration also will collect and 
hold relevant information in its systems. Think of how many different 
agencies I have just mentioned are concerned about the one ship that we 
fear may be bringing the wrong people with the wrong cargo to threaten 
the United States.
  Now reflect on this: None of these information technology systems are 
designed to communicate with one another, none of them. How in the 
world can we assure the American people of their safety when we are 
dealing with such archaic standards, when we are ignoring the most 
basic requirement--that these agencies work together and share 
information? This bill, 484 pages in length, ignores this challenge. We 
cannot ignore this challenge. Frankly, we have to respond because these 
divergent systems will ultimately need to be linked to the Homeland 
Security Department. We need to make certain there is a seamless 
interconnected system.
  We have to ask key questions about the best way to ensure that the 
homeland security components communicate and share information with one 
another. By whom, when, how, and at what cost can the systems be 
linked. In addition, it is equally important to establish appropriate 
links between the Homeland Security Department and other agencies, 
particularly the intelligence community and law enforcement agencies.
  Think about the ship coming into Lake Michigan from a foreign port 
and all of the questions that I just proposed. Would you not want to 
make certain that the FBI and the CIA had access to that information? 
In addition, the National Security Agency, Department of Defense, State 
Department, State and local officials, all of them could benefit by 
having access to that information. These links are needed because the 
Homeland Security Department will be inordinately dependent upon full 
and timely information exchange.
  We cannot put a soldier or policeman on every corner in America and 
make this a safe nation. But what we can do is gather important 
information and share it so that it can be evaluated and coordinated 
and acted upon. That cannot happen with this bill as it currently 
stands before the Senate. This bill does not even envision that as a 
goal to be met. The status quo, which unfortunately this bill in many 
ways preserves, is not adequate to do the job.
  At a June 26 Governmental Affairs Committee meeting focusing on the 
Department of Homeland Security in the intelligence community, I 
introduced the concept of ensuring interoperability, the communication 
of different computer systems in the Federal Government. I talked about 
the history of the Manhattan Project. My premise was if we are going to 
combine the intelligence resources and gathering of the Department of 
Defense, the Department of State, the Department of Justice, and the 
new Department of Homeland Security, would it not make common sense to 
establish a Manhattan Project when it comes to information technologies 
so all these agencies can communicate with one another, share 
information, and try to make the job more effective?
  We have all this discussion on reorganization, but we are not facing 
the basic challenge. Given the current state of affairs in the Federal 
information technology systems, it is obvious we need to address the 
information technology issues that are raised as part of the new 
Manhattan Project.
  Let me tell you about some of the current problems and challenges we 
face, if you wonder how we are going to make America safer against the 
threats of terrorism. Six years ago the U.S. Congress mandated the 
Immigration and Naturalization Service to establish a database to 
record visa holders exiting the United States. Understand the process. 
You are a foreign national and you want to come to the United States 
for any number of reasons--as a student, as a visitor, for some other 
reason. You go through the Immigration and Naturalization Service and a 
visa is offered to you through our consulates overseas. That is 
recorded. That is part of their database.
  We then said to the INS we want you to make a record of those leaving 
the

[[Page S11010]]

United States so we have, at any given time, an inventory of people who 
are visa holders in our country. It makes sense. If you don't do that, 
frankly, you are turning loose visa holders with no accountability as 
to whether they overstayed the legally permitted period for their visa 
or something else.
  Six years ago we said to the INS, come up with a database that will 
record the exit dates of visa holders. We received a report a few 
months ago from the Director General that, despite 6 years of effort, 
the INS is unable and incapable of creating this database. Think about 
that for a second, about making America safer, about visa holders and 
people coming into this country. We have been unable in a 6-year period 
of time to establish that database.
  Let me give you one other illustration. Both the Federal Bureau of 
Investigation and the Immigration and Naturalization Service collect 
fingerprints. They, of course, do that in the course of law 
enforcement, in the course of people visiting the United States. Three 
years ago we said to these two agencies, the INS and the FBI, combine 
the fingerprint database. We want to know if you have a person who is a 
criminal suspect who also may be out of status with the Immigration and 
Naturalization Service. We want to put that information together into 
one single database of fingerprints available to law enforcement in the 
United States. Three years later, still it has not been done.
  As we look at the challenges we face, it is one thing to move the 
boxes around on the chart, to talk about a new Department of Homeland 
Security with 170,000 employees, but it is quite another to make 
certain that when these employees sit down at their desks in their 
offices, they have computer capability to literally protect America. 
This bill does not address that.
  This is our Department of Homeland Security. It is being given to us 
by the House, which will soon adjourn without any effort to address 
this challenge.
  An article in the July 27 edition of Fortune magazine also ascribes 
such a styling to the concept, pointing out:

       There is an abundance of breathtakingly versatile 
     technology available to counter the menace of terrorist 
     attacks at home. Now for the bad news: Computers are only as 
     smart as the bureaucrats who use them.

  This is Fortune magazine speaking.

       It may require a Manhattan Project of social engineering to 
     induce agencies that have traditionally viewed each other 
     mostly as rivals for budget dollars to reach out and hold 
     hands.

  At the hearing which we held before the Government Affairs Committee, 
I asked several of our witnesses to comment. One of the witnesses was 
GEN Hughes, LTG Patrick Hughes, U.S. Army, retired, former director of 
the Defense Intelligence Agency, 1996 to 1999. I talked to him about 
what I have just said in my opening remarks here. Here is what he 
said--first replying. General Hughes said to me:

       First, your characterization of this problem is, in my 
     view, right, but it is not about technology. The technology 
     to do the things that you are talking about wanting to do is 
     present and available. It is about parochial interests, 
     managing and constructing the technology for their own 
     purposes, as opposed to the synergistic, larger effect of 
     mission support across the government.

  This man, who for 3 years had the responsibility in the Defense 
Intelligence Agency, knows what the problem is. He knows, 
unfortunately, that it is a problem that is not addressed by this 
Department of Homeland Security proposal. The amendment which I propose 
to create a Manhattan Project through the Department of Management and 
Budget had the bipartisan cosponsorship of Senator Lieberman, who was 
on the floor earlier, as well as Senator Thompson, who is here. It was 
added to the bill by unanimous consent of all members of committee. 
Section 171 of the committee-approved legislation requires the Director 
of the Office of Management and Budget to develop a comprehensive 
enterprise architecture for information systems of agencies related to 
homeland security.
  It calls for designating a key official at OMB, approved by the 
President, whose primary responsibility is to carry out the duties of 
the Director. This is our General Grove. This would be our Manhattan 
Project. The President would have the last word on this person and the 
responsibilities he would have to execute. OMB must make sure agencies 
implement the plan and regularly submit status and progress reports to 
Congress, as they should.
  The enterprise architecture and resulting systems must be designed so 
they can achieve interoperability between and among Federal agencies 
responsible for homeland security and homeland defense, whether inside 
or adjunct to the new Department.
  These systems must be capable of quick deployment. These must be 
readily upgraded with improved technologies. Effective security 
measures must be maintained as well.
  The OMB director and Secretary of the new Department shall also 
facilitate interoperability between information systems of Federal, 
State, and local agencies responsible for homeland defense. This is a 
common complaint. I have heard it from the City of Chicago and other 
agencies across my home State, that the whole question of homeland 
security has to work its way down to the first responders at the local 
level, as does the information. This bill, sadly, does not address that 
because it does not include the amendment which I proposed in 
committee.
  Enterprise architectures require systematically thinking through the 
relationship between operations and underlying information 
technologies. Used increasingly by industry and some governments, they 
can reduce redundancies, modernize operations, and improve program 
performance.
  Historically, Federal agencies have developed information systems in 
what you call, euphemistically, parochial stovepipes with little or no 
thought about communication with other agencies. Agencies vital to 
homeland security are currently plagued by outdated technology, poor 
information security, and, unfortunately, not the necessary motivation 
to make the positive change.
  An article appearing in this month's issue of Government Executive 
magazine captured the problem. Let me give you just a few words from 
that article, if I might. This is from Government Executive, September, 
2002:

       When a computer mistakes a 70-year-old black woman for a 
     28-year-old white man who is a triple murder suspect on the 
     FBI's terrorist group list, something is wrong with the 
     computer or the information inside it. The terrorist list on 
     which this person's name appeared is just one of more than 25 
     maintained by dozens of law enforcement, intelligence and 
     Defense Department agencies. Those lists are not integrated 
     and often are not shared. We must build a system of systems 
     that can provide the right information at all the right 
     times. Information will be shared horizontally, across each 
     level of government, and vertically among Federal, State, and 
     local government, private industry, and citizens. 
     Electronically tying together the more than 20 agencies to be 
     merged into a new Department will harness their security 
     capabilities, thereby making America safer.

  It goes on to quote John Koskinin. He was the Federal Y2K chief 
brought to avert what we thought might be a computer crisis. He was 
asked to assess the challenge of bringing them together. I am for 
bringing them together. Here is a man who worked to analyze all the 
computers of the Federal Government and what he says is, I am afraid, 
chilling. I quote:

       You'll never get your arms around it.

  He believes placing all the security agency systems under one roof 
and building more systems will not make agencies communicate. He 
understands the challenge we face. This bill does not face that 
challenge and that, unfortunately, is a terrible shortcoming.
  Interoperable information systems would permit efficient sharing of 
data and better communication. I have discussed this with a man I 
respect very much. Tom Ridge and I came to Congress in 1982, and we 
served many years together in the House. I was one who praised the 
President for choosing Governor Ridge of Pennsylvania as the first 
person to direct our homeland security operation. I called him on this 
issue. I explained to him what it was all about. Tom said to me, in his 
own words, he believed that what I am proposing here in this amendment 
would be a ``force multiplier.'' It would enhance our technology, 
enhance our ability to protect America.
  This substitute which we have before us does not include that force 
multiplier. This substitute, unfortunately, falls short of utilizing 
the resources we have most effectively.

[[Page S11011]]

  It scratches the surface by tasking an under secretary with ensuring 
informational systems compatibility. Yet there is no corresponding duty 
outside of this Department of Homeland Security with any other agency 
or any other director in government.
  If there is a coordination of information technology within the 
Department of Homeland Security, there is no premise or promise that we 
are going to have this agency communicate with the CIA, with the FBI, 
with the Department of Defense, with the Department of State, and 
without that interoperability, we are missing this force multiplier. 
The amendment would make sense and fill the gap. It would give an 
overarching job to OMB for homeland security enterprise architectures.
  I think we can all agree there is no one single magic silver bullet 
to protect America. But we have to strengthen our security. We have to 
use the information we collect and use it effectively.
  When you take a look at the systems, we have to consider a recent 
challenge. On October 23 of this year--a few weeks ago--GovExec.com, an 
online news service, reported that the FBI ran into serious 
shortcomings in its effort to capture the Washington-area snipers. A 
system known as ``Rapid Start'' was set up at the investigation command 
center in Rockville, MD. Leads called in to the center and to hotlines 
were manually entered into a database which organized the information 
to try to find the snipers. They assigned investigators to follow up. 
According to the news article, Rapid Start--the computer system at the 
FBI--was never designed to handle the large volume of information and 
the 67,000 calls they received. The system was overwhelmed. What is 
even more compelling is that Rapid Start was created by the FBI as a 
way to avoid working with the Federal Bureau of Investigation's 
existing computer system, the ``Automated Case Support System.'' The 
agents of the FBI had already determined the existing computer 
capability at the FBI could not handle the investigation to find two 
snipers in the Washington, DC area. The FBI's antiquated technology 
systems don't allow its agents to share information among field 
offices.
  Let me give an illustration. The September 11 disaster occurred. 
Within a few hours, we collected photographs of the 19 suspected 
terrorists who we believed to be on those airplanes. The FBI, when they 
collected these photographs, communicated that information and these 
photos to their field offices.
  How would you do that if you were at a home computer and you wanted 
to send a photograph to your grandson or your granddaughter? Virtually 
every computer system that is worth its salt has the capacity to 
transmit photographs. But not the computer system of the Federal Bureau 
of Investigation. They had to FedEx the photos of the suspects to their 
field offices because the computer system couldn't transmit 
photographs.
  Think about that. Would you buy a computer system if you were a law 
enforcement agency that couldn't do that? That is a fact today.
  The Automated Case Support System that Rapid Start was built to 
circumvent was blamed for the loss of 4,000 documents in the 
prosecution of Timothy McVeigh for the Oklahoma City bombing.
  According to a recent article, only in recent months did the FBI 
start a computer system through a project known as Trilogy. It is 
starting to replace obsolete desktops. I have been talking about this 
for a long time. This committee has tried to address it. We did address 
it with a bipartisan amendment agreed to by Senator Lieberman, Senator 
Thompson, Republicans and Democrats in the committee. We put it in the 
bill. But it is not in this bill that has come over to us from the 
House of Representatives.

  What I am proposing to my colleagues on the Senate floor is this: 
Please let us depoliticize this issue. Why in the world should this 
became a partisan matter? The computers of this government are going to 
serve all of the citizens. No one is going to be able to have bragging 
rights--Democrats or Republicans, or anyone of any other political 
stripe. It is a question of whether we are going to put in place the 
resources and tools and weapons we need to fight terrorism.
  The amendment which I am about to propose as a second-degree 
amendment would do just that. It would take the exact language from the 
Governmental Affairs Committee on a bipartisan basis, put it in this 
bill, and give us a chance to establish interoperability and enterprise 
architecture across the Federal Government.
  How in the world can we pass this legislation without doing that? How 
can we leave Washington and say to America, ``Sleep safely. You know 
the terrorist threats are there. We are doing everything we can''? We 
are not.
  This 484-page bill fails in one of the most basic challenges. It does 
not challenge us to establish the very best in computer technology for 
the Federal Government. The fact of the matter is our current system 
doesn't even measure up to the most basic standards of requirements of 
computers and computer basics across America. Shouldn't we bring to the 
American people the very best in computer technology to protect our 
Nation, our families, our children? That, I think, is what is at stake 
here.
  I implore my colleagues. I understand what is going on here. We were 
told the House will leave town, we will get this 484-page bill, don't 
change a period, a comma, or a single word--no amendments, take it or 
leave it--and we are going home. That isn't good. That really isn't 
good.
  I think the Senate has a responsibility. We can identify the glaring 
omissions from this bill--and one that ultimately has to be corrected. 
But in the months before we return, while this problem still festers 
and looms, we are not going to be protecting America as much as we 
should. We will not be providing the American people the kind of 
defense against terrorism which they deserve. We will not be using the 
best resources of our government and technology to make America safer.
  I am hoping my colleagues will consider this amendment and give it 
the same type of bipartisan approval they did in the Governmental 
Affairs Committee.


                Amendment No. 4906 to Amendment No. 4902

  I would like to offer the amendment which I filed with the clerk as a 
second-degree amendment to the pending Lieberman amendment.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Illinois [Mr. Durbin] proposes an 
     amendment numbered 4906 to amendment No. 4902.

  Mr. DURBIN. Madam President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

(Purpose: To provide for the development of a comprehensive enterprise 
architecture for information systems to achieve interoperability within 
and between agencies with responsibility for homeland security, and for 
                            other purposes)

       At the appropriate place, insert the following:

     SEC. __. INTEROPERABILITY OF INFORMATION SYSTEMS.

       (a) Definition.--In this section, the term ``enterprise 
     architecture''--
       (1) means--
       (A) a strategic information asset base, which defines the 
     mission;
       (B) the information necessary to perform the mission;
       (C) the technologies necessary to perform the mission; and
       (D) the transitional processes for implementing new 
     technologies in response to changing mission needs; and
       (2) includes--
       (A) a baseline architecture;
       (B) a target architecture; and
       (C) a sequencing plan.
       (b) Responsibilities of the Secretary.--The Secretary 
     shall--
       (1) endeavor to make the information technology systems of 
     the Department, including communications systems, effective, 
     efficient, secure, and appropriately interoperable;
       (2) in furtherance of paragraph (1), oversee and ensure the 
     development and implementation of an enterprise architecture 
     for Department-wide information technology, with timetables 
     for implementation;
       (3) as the Secretary considers necessary, to oversee and 
     ensure the development and implementation of updated versions 
     of the enterprise architecture under paragraph (2); and
       (4) report to Congress on the development and 
     implementation of the enterprise architecture under paragraph 
     (2) in--
       (A) each implementation progress report required under this 
     Act; and
       (B) each biennial report required under this Act.

[[Page S11012]]

       (c) Responsibilities of the Director of the Office of 
     Management and Budget.--
       (1) In general.--The Director of the Office of Management 
     and Budget, in consultation with the Secretary and affected 
     entities, shall develop--
       (A) a comprehensive enterprise architecture for information 
     systems, including communications systems, to achieve 
     interoperability between and among information systems of 
     agencies with responsibility for homeland security; and
       (B) a plan to achieve interoperability between and among 
     information systems, including communications systems, of 
     agencies with responsibility for homeland security and those 
     of State and local agencies with responsibility for homeland 
     security.
       (2) Timetables.--The Director of the Office of Management 
     and Budget, in consultation with the Secretary and affected 
     entities, shall establish timetables for development and 
     implementation of the enterprise architecture and plan under 
     paragraph (1).
       (3) Implementation.--The Director of the Office of 
     Management and Budget, in consultation with the Secretary and 
     acting under the responsibilities of the Director under law 
     (including the Clinger-Cohen Act of 1996), shall--
       (A) ensure the implementation of the enterprise 
     architecture developed under paragraph (1)(A); and
       (B) coordinate, oversee, and evaluate the management and 
     acquisition of information technology by agencies with 
     responsibility for homeland security to ensure 
     interoperability consistent with the enterprise architecture 
     developed under subsection (1)(A).
       (4) Updated versions.--The Director of the Office of 
     Management and Budget, in consultation with the Secretary, 
     shall oversee and ensure the development of updated versions 
     of the enterprise architecture and plan developed under 
     paragraph (1), as necessary.
       (5) Report.--The Director of the Office of Management and 
     Budget, in consultation with the Secretary, shall annually 
     report to Congress on the development and implementation of 
     the enterprise architecture and plan under paragraph (1).
       (6) Consultation.--The Director of the Office of Management 
     and Budget shall consult with information systems management 
     experts in the public and private sectors, in the development 
     and implementation of the enterprise architecture and plan 
     under paragraph (1).
       (7) Principal officer.--The Director of the Office of 
     Management and Budget shall designate, with the approval of 
     the President, a principal officer in the Office of 
     Management and Budget, whose primary responsibility shall be 
     to carry out the duties of the Director under this 
     subsection.
       (d) Agency Cooperation.--The head of each agency with 
     responsibility for homeland security shall fully cooperate 
     with the Director of the Office of Management and Budget in 
     the development of a comprehensive enterprise architecture 
     for information systems and in the management and acquisition 
     of information technology consistent with the comprehensive 
     enterprise architecture developed under subsection (c).
       (e) Content.--The enterprise architecture developed under 
     subsection (c), and the information systems managed and 
     acquired under the enterprise architecture, shall possess the 
     characteristics of--
       (1) rapid deployment;
       (2) a highly secure environment, providing data access only 
     to authorized users; and
       (3) the capability for continuous system upgrades to 
     benefit from advances in technology while preserving the 
     integrity of stored data.

  Mr. DURBIN. Madam President, let me clarify one point. Recent news 
stories indicate the former national security adviser John Poindexter 
is working at the Department of Defense to develop a plan to shift 
private database research in fear that it might be useful for 
intelligence purposes. That proposal raises some privacy questions, I 
concede. Another mistaken news story suggests that homeland security 
will facilitate that kind of investigation into private databases.
  My proposal has nothing to do with this DOD plan. My proposal focuses 
only on making sure the Federal Government computer databases can 
communicate with one another when necessary to make certain, for 
example, that the INS and the FBI can share internal information--not 
information on private databases--to help protect against terrorist 
risk.
  I yield the floor.

                          ____________________