[Congressional Record Volume 150, Number 122 (Friday, October 1, 2004)]
[Senate]
[Pages S10197-S10252]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


[[Page S10197]]
                NATIONAL INTELLIGENCE REFORM ACT OF 2004

  The PRESIDENT pro tempore. Under the previous order, the Senate will 
resume consideration of S. 2845, which the clerk will report.
  The legislative clerk read as follows:

       A bill (S. 2845) to reform the intelligence community and 
     the intelligence and intelligence-related activities of the 
     United States Government, and for other purposes.

  Pending:

       Collins Amendment No. 3705, to provide for homeland 
     security grant coordination and simplification.
       Lautenberg Amendment No. 3767, to specify that the National 
     Intelligence Director shall serve for one or more terms of up 
     to 5 years each.
       Kyl Amendment No. 3801, to modify the privacy and civil 
     liberties oversight.
       McCain/Lieberman Amendment No. 3807, to develop a strategy 
     for combining terrorist travel intelligence, operations, and 
     law enforcement.
       Feinstein Amendment No. 3718, to improve the intelligence 
     functions of the Federal Bureau of Investigation.
       Stevens Amendment No. 3839, to strike section 201, relating 
     to public disclosure of intelligence funding.
       Ensign Amendment No. 3819, to require the Secretary of 
     State to increase the number of consular officers, clarify 
     the responsibilities and functions of consular officers, and 
     require the Secretary of Homeland Security to increase the 
     number of border patrol agents and customs enforcement 
     investigators.
       Reid (for Schumer) Amendment No. 3887, to amend the Foreign 
     Intelligence Surveillance Act of 1978 to cover individuals, 
     other than United States persons, who engage in international 
     terrorism without affiliation with an international terrorist 
     group.
       Reid (for Schumer) Amendment No. 3888, to establish the 
     United States Homeland Security Signal Corps to ensure proper 
     communications between law enforcement agencies.
       Reid (for Schumer) Amendment No. 3889, to establish a 
     National Commission on the United States-Saudi Arabia 
     Relationship.
       Reid (for Schumer) Amendment No. 3890, to improve the 
     security of hazardous materials transported by truck.
       Reid (for Schumer) Amendment No. 3891, to improve rail 
     security.
       Reid (for Schumer) Amendment No. 3892, to strengthen border 
     security.
       Reid (for Schumer) Amendment No. 3893, to require 
     inspection of cargo at ports in the United States.
       Reid (for Schumer) Amendment No. 3894, to amend the 
     Homeland Security Act of 2002 to enhance cybersecurity.

  The PRESIDENT pro tempore. The Senator from Maine.
  Ms. COLLINS. Mr. President, I suggest the absence of a quorum.
  The PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. ALLARD. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDENT pro tempore. Without objection, it is so ordered.


                           Amendment No. 3765

  Mr. ALLARD. Mr. President, my understanding is that there is a 
pending amendment before the Senate; is that correct?
  The PRESIDENT pro tempore. The Senator is correct. There are several.
  Mr. ALLARD. I ask unanimous consent that the pending amendments be 
set aside, and I call up amendment No. 3765.
  The PRESIDENT pro tempore. Without objection, it is so ordered.
  The clerk will report.
  The legislative clerk read as follows:

       The Senator from Colorado [Mr. Allard] proposes an 
     amendment numbered 3765.

  Mr. ALLARD. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDENT pro tempore. Without objection, it is so ordered.
  The amendment is as follows:

  (Purpose: To provide for additional responsibilities for the Chief 
Information Officer of the Department of Homeland Security relating to 
                        geographic information)

       At the appropriate place, insert the following:

     SEC. __. HOMELAND SECURITY GEOGRAPHIC INFORMATION.

       (a) Findings.--Congress finds that--
       (1) geographic technologies and geographic data improve 
     government capabilities to detect, plan, prepare, and respond 
     to disasters in order to save lives and protect property;
       (2) geographic data improves the ability of information 
     technology applications and systems to enhance public 
     security in a cost-effective manner; and
       (3) geographic information preparedness in the United 
     States, and specifically in the Department of Homeland 
     Security, is insufficient because of--
       (A) inadequate geographic data compatibility;
       (B) insufficient geographic data sharing; and
       (C) technology interoperability barriers.
       (b) Homeland Security Geographic Information.--Section 703 
     of the Homeland Security Act of 2002 (6 U.S.C. 343) is 
     amended--
       (1) by inserting ``(a) In General.--'' before ``The Chief 
     Information''; and
       (2) by adding at the end the following:
       ``(b) Geographic Information Functions.--
       ``(1) Definition.--In this subsection, the term `geographic 
     information' means the information systems that involve 
     locational data, such as maps or other geospatial information 
     resources.
       ``(2) Office of geospatial management.--
       ``(A) Establishment.--The Office of Geospatial Management 
     is established within the Office of the Chief Information 
     Officer.
       ``(B) Geospatial information officer.--
       ``(i) Appointment.--The Office of Geospatial Management 
     shall be administered by the Geospatial Information Officer, 
     who shall be appointed by the Secretary and serve under the 
     direction of the Chief Information Officer.
       ``(ii) Functions.--The Geospatial Information Officer shall 
     assist the Chief Information Officer in carrying out all 
     functions under this section and in coordinating the 
     geographic information needs of the Department.
       ``(C) Coordination of geographic information.--The Chief 
     Information Officer shall establish and carry out a program 
     to provide for the efficient use of geographic information, 
     which shall include--
       ``(i) providing such geographic information as may be 
     necessary to implement the critical infrastructure protection 
     programs;
       ``(ii) providing leadership and coordination in meeting the 
     geographic information requirements of those responsible for 
     planning, prevention, mitigation, assessment and response to 
     emergencies, critical infrastructure protection, and other 
     functions of the Department; and
       ``(iii) coordinating with users of geographic information 
     within the Department to assure interoperability and prevent 
     unnecessary duplication.
       ``(D) Responsibilities.--In carrying out this subsection, 
     the responsibilities of the Chief Information Officer shall 
     include--
       ``(i) coordinating the geographic information needs and 
     activities of the Department;
       ``(ii) implementing standards, as adopted by the Director 
     of the Office of Management and Budget under the processes 
     established under section 216 of the E-Government Act of 2002 
     (44 U.S.C. 3501 note), to facilitate the interoperability of 
     geographic information pertaining to homeland security among 
     all users of such information within--

       ``(I) the Department;
       ``(II) State and local government; and
       ``(III) the private sector;

       ``(iii) coordinating with the Federal Geographic Data 
     Committee and carrying out the responsibilities of the 
     Department pursuant to Office of Management and Budget 
     Circular A-16 and Executive Order 12906; and
       ``(iv) making recommendations to the Secretary and the 
     Executive Director of the Office for State and Local 
     Government Coordination and Preparedness on awarding grants 
     to--

       ``(I) fund the creation of geographic data; and
       ``(II) execute information sharing agreements regarding 
     geographic data with State, local, and tribal governments.

       ``(3) Authorization of appropriations.--There are 
     authorized to be appropriated such sums as may be necessary 
     to carry out this subsection for each fiscal year.''.

  Mr. ALLARD. Mr. President, to briefly explain the amendment, it 
provides additional responsibilities for the Chief Information Officer, 
Department of Homeland Security, relating to geographic information. 
This amendment has been discussed by both managers, the Senator from 
Maine and the Senator from Connecticut. My understanding is the 
amendment has been agreed to.
  The PRESIDENT pro tempore. The Senator from Maine.
  Ms. COLLINS. Mr. President, I commend the Senator from Colorado for 
the work that he has done in coordinating the geospatial information 
needs of the Department of Homeland Security. He first introduced a 
bill on this issue last year. He has been a leader in pushing for 
improvements in how this information is handled. This legislation was 
recently reported as a separate bill by the Governmental Affairs 
Committee. It is acceptable and cleared on both sides. I urge adoption 
of the amendment.
  The PRESIDENT pro tempore. Is there further debate? Without 
objection, the amendment is agreed to.
  The amendment (No. 3765) was agreed to.
  The PRESIDENT pro tempore. The Senator from Colorado.
  Mr. ALLARD. Mr. President, I rise today to discuss the Collins-
Lieberman bill. Later I will have another amendment that I will offer.
  First, I thank the managers of the bill, Senator Collins and Senator

[[Page S10198]]

Lieberman, for their efforts in getting at least one of my amendments 
accepted. The other is pending. One involves the Department of Homeland 
Security and its ability to detect, plan, and prepare for disaster by 
better utilizing geospatial data throughout the U.S. Government. I 
thank both of them for that support.
  The other amendment assures that the national intelligence director 
will take action to ensure that commercial satellite imagery is used to 
fulfill the imagery information requirements of the intelligence 
community. Both are important to the ongoing safety and security of the 
country. I am pleased to see the adoption of one, and further 
consideration of the other.
  In a moment I would like to offer a third amendment to strengthen the 
bill regarding management of the intelligence community workforce. 
Before I offer my amendment, I would like to talk generally about the 
overall intelligence reform legislation.
  September 11, 2001, was a day that none of us will forget in our 
lifetimes. Mr. President, 9/11 was a harsh wake-up call for our 
country. That catastrophic day forced us to recognize new threats and 
to energize our Government to rise up and eliminate terror threats and 
modernize our national security institutions. Our Government has moved 
quickly and comprehensively to implement a significant body of 
governmental reforms.
  It is a fact that through hard work and strong leadership, President 
Bush's administration has already implemented planning of significant 
improvements to our Government's intelligence planning and operations. 
Of the 39 recommendations from the 9/11 Commission that the President 
could legally implement through Executive order, only three remain to 
be addressed. It is a good idea, as we consider reforms to our 
intelligence community, to review again what the 9/11 Commission 
concluded.
  The 9/11 Commission primarily found that, first, we were slow to 
respond to a clear and emerging threat. For far too long we stood still 
while extremist radical Muslims hijacked religion to stir up hatred, 
hijacked a country to operate their base camps from, and hijacked our 
airliners to murder more than 3,000 of our fellow Americans.
  Second, we had inadequate human intelligence assets around the world 
to observe such threats and effectively warn us of impending dangers.
  Third, for the intelligence we did get, we lacked an effective 
bureaucracy to integrate disparate but related pieces of information, 
and we lacked a strong quarterback to coordinate intelligence programs 
against emerging threats, to plan long-term strategies, or to steer a 
change of course when the situation dictated.
  Fourth, our military was not adequately prepared to deal with the 
threat that day. And last and maybe most importantly, we need new tools 
and strategies for our diplomatic corps to reach out and lead troubled 
regions of the world against terrorism's misguided principles and 
cowardly acts. We need transformational military improvements to engage 
where and when our diplomacy does not succeed.

  The 9/11 Commission also fashioned more than three dozen 
recommendations to address these national security shortfalls. I 
applaud the effort of the chairman and ranking member of the 
Governmental Affairs Committee in developing the proposals before us 
today. I agree with the majority of the initiatives in the intelligence 
reform legislation. The Collins-Lieberman bill will improve our ability 
to develop actionable intelligence and increase our Government's 
coordination and responsiveness. Elevating the roles and 
responsibilities of today's Director of Central Intelligence to the 
level of a national intelligence director, including the robust 
planning and budgeting authority, is prudent and much needed.
  Establishment of strategic intelligence planning and fusion centers 
such as the national counterterrorism center will also greatly 
strengthen our national security team's ability to connect the dots. We 
need to identify trends, anticipate threats, and develop coordinated 
plans to attack threats prior to their realization.
  However, I am not convinced we are effectively matching solutions to 
identify problems in all cases. My concerns are heightened because 
today we are a nation at war. Our men and women of the Armed Forces and 
the intelligence community are in harm's way. I am just not certain 
that we have thought through adequately the management changes or the 
unintended consequences relative to Defense Department operations. I 
will follow closely the remainder of the debate to understand better 
the potential adverse effects prior to voting to support them.
  I am pleased to see the attention focused by the 9/11 Commission 
Report and the Collins-Lieberman bill on the topic of personnel 
management policies and practices across the intelligence community. 
Both panels recognize that in order to effect such a magnitude of 
change in our Federal Government, uniform personnel standards and 
training are needed to align individual mindsets with the desired 
objectives.
  Our national security requirements demand that we recruit and retain 
the best and the brightest defense and intelligence personnel our 
country has to offer.
  We need to ensure the National Intelligence Director is armed with 
both authority and flexibility to enforce only the highest performance 
and ethical standards across the intelligence community. This requires 
modern personnel management policies and regulations that incorporate 
competitive compensation, incentives, and supervisory flexibility.
  To keep pace with the dynamic work environment of the intelligence 
community, these same supervisors require streamlined dismissal or 
termination mechanisms for personnel failing to satisfy standards.
  The bill before us today directs specific authorities and changes to 
performance compensation and incentives across the national 
intelligence program. Section 163 explicitly grants the National 
Intelligence Director authorities governing new National Intelligence 
Authority employees that mirror the authority held by the Director of 
Central Intelligence Agency relative to CIA employees.
  In section 301, the bill goes on to amplify the CIA Director's 
authority to terminate employees ``. . . whenever the Director 
considers the termination of employment of such officer or employee 
necessary or advisable in the interests of the United States.''
  This is clear, unequivocal, and prudent authority that will bolster 
our intelligence leaders' personnel management capabilities. But I 
believe we need to go further.


                           Amendment No. 3778

  Mr. President, at this time, I ask unanimous consent that we lay 
aside the pending amendment and that the clerk report amendment No. 
3778, which is at the desk.
  The PRESIDENT pro tempore. Without objection, the pending amendment 
is set aside.
  The clerk will report.
  The legislative clerk read as follows:

       The Senator from Colorado [Mr. Allard] proposes an 
     amendment numbered 3778.

  The amendment is as follows:

 (Purpose: To improve the management of the personnel of the National 
                        Intelligence Authority)

       On page 113, between lines 17 and 18, insert the following:
       (b) Termination of Employees.--(1) Notwithstanding any 
     other provision of law, the National Intelligence Director 
     may, in the discretion of the Director, terminate the 
     employment of any officer or employee of the National 
     Intelligence Authority whenever the Director considers the 
     termination of employment of such officer or employee 
     necessary or advisable in the interests of the United States.
       (2) Any termination of employment of an officer or employee 
     under paragraph (1) shall not affect the right of the officer 
     or employee to seek or accept employment in any other 
     department, agency, or element of the United States 
     Government if declared eligible for such employment by the 
     Office of Personnel Management.
       On page 113, line 18, strike ``(b) Rights and Protections'' 
     and insert ``(c) Other Rights and Protections''.
       On page 113, after line 24, add the following:
       (d) Exclusion from Certain Personnel Management 
     Requirements.--
       (1) Performance appraisals.--Section 4301(1)(ii) of title 
     5, United States Code, is amended by inserting ``the National 
     Intelligence Authority,'' before ``the Central Intelligence 
     Agency,''.
       (2) Labor-management relations.--Section 7103(a)(3) of that 
     title is amended--
       (A) in subparagraph (G), by striking ``or'' at the end;
       (B) in subparagraph (H), by striking the period at the end 
     and inserting a semicolon; and

[[Page S10199]]

       (C) by adding at the end the following new subparagraphs:
       ``(I) the National Intelligence Authority;
       ``(J) the Defense Intelligence Agency;
       ``(K) the National Geospatial-Intelligence Agency; or
       ``(L) any other Executive agency or unit thereof which is 
     designated by the President and the principal function of 
     which is the conduct of foreign intelligence or 
     counterintelligence activities.''.
       (e) Regulations.--(1) In carrying out the responsibilities 
     and authorities specified in sections 112 and 113 and this 
     section (including the amendments made by this section), the 
     National Intelligence Director shall prescribe regulations 
     regarding the management of personnel of the National 
     Intelligence Authority.
       (2) The regulations shall include provisions relating to 
     the following:
       (A) The applicability to the personnel of the Authority of 
     the authorities referred to in subsection (a).
       (B) The exercise of the authority under subsection (b) to 
     terminate officers and employees of the Authority.

  Mr. ALLARD. Mr. President, my amendment will accomplish the 
following: first, expressly grant this termination authority to the 
National Intelligence Director in the statute; and second, direct the 
National Intelligence Director to prescribe regulations specifying the 
exercise of this termination authority.
  Notwithstanding this broad authority already in place today, the 
Director of Central Intelligence maintains regulations that are 
inefficient, not appropriate for today's security environment, and are 
out of sync with his broad authority. For example, an intelligence 
supervisor who deems an officer or employee as unsuitable is often 
required to maintain that employee in sensitive positions while adverse 
personnel action is initiated.
  After a final termination decision is rendered by the agency, the 
employee can engage in a lengthy appeals process, both internal and 
external to the agency, that could last at least a year. In my opinion, 
this practice is not in the best interest of the United States, and 
indeed presents a clear security risk.
  With regulations requiring streamlined employee termination 
practices, I believe we can improve national security and fiscal 
responsibility across the National Intelligence Authority. My amendment 
would enhance this responsibility, and I urge my colleagues to support 
my amendment.
  Mr. President, the Chair and Ranking Members, indeed all Members of 
the Government Affairs Committee, have served our country well. The 
Collins-Lieberman bill for intelligence reform brings forth bold and 
sweeping changes to our critical national security institutions. 
Accordingly, it is essential that we get this right. More is at stake 
than simply moving boxes around on an organization chart. The decisions 
we make over the next several days will be far-reaching and have 
significant consequences. Our Armed Forces are not only the largest 
provider of intelligence information, they are also the largest 
consumer. Our Nation's military, the most powerful and proficient ever 
assembled in the history of the world, hinges on a seamless and 
unbroken flow of intelligence information--regardless of whether that 
intelligence information is ``national'' or ``tactical.''
  As we consider the Collins-Lieberman intelligence reform bill, let us 
redouble our efforts to ensure we're matching solutions to identified 
problems. As long as we keep this perspective, I am confident this body 
will do the right thing.
  Mr. President, I yield floor.
  The PRESIDENT pro tempore. The Senator from Maine is recognized.
  Ms. COLLINS. Mr. President, I thank the Senator from Colorado for his 
generous comments. I very much enjoy working with him on the Armed 
Services Committee. He brings a great deal of expertise to this debate.
  The amendment he has proposed this morning is one that our staffs are 
starting to look at. I suggest that it be set aside so that we can do 
more analysis of it, but I appreciate the spirit in which it was 
offered.
  The PRESIDENT pro tempore. Is there objection to setting aside this 
amendment? The amendment is set aside.
  Who seeks recognition?
  Mr. LIEBERMAN. Mr. President, I thank the Senator for his statements 
about the Collins-Lieberman legislation and also thank him for the 
amendment. This looks to be exactly like the legislation the Senator 
and Senator Akaka introduced, which came out of our committee. This is 
the right moment, and it strengthens the bill. I thank him for his 
persistence in offering it. I am glad we added it.
  I yield the floor.
  Mr. ALLARD. I thank the managers for their kind comments.
  The PRESIDENT pro tempore. The Senator from Tennessee is recognized.
  Mr. ALEXANDER. Mr. President, this morning, I want to take a few 
minutes to talk about an amendment that was adopted yesterday. It was 
sponsored by the Senator from Ohio, Mr. Voinovich.
  The amendment is about the 3,361 Presidential appointees and how they 
are confirmed. I am glad to see that as I am speaking the President pro 
tempore is here because he has been a Presidential appointee in an 
earlier administration. I am glad to see both the chairman and ranking 
member of the Governmental Affairs Committee here because their 
committee deals with this issue. This is the kind of issue that never 
makes the front page and is always on the back burner. But it has a 
major practical effect on how our Government works.
  The 9/11 Commission has reminded us, once again, of the problem we 
have. What the 9/11 Commission recommended, and what Senator 
Voinovich's amendment would do--an amendment that I was glad to 
cosponsor--is to, in the words of the 9/11 Commission--``speed up the 
nomination, financial reporting, security clearances, and confirmation 
process for national security officials at the start of an 
administration.''
  In other words, in plain English, to make it possible, if President 
Bush reorganizes his administration in a second term, or if Senator 
Kerry is the new President, they have 3,361 appointments to make. I 
think it would come as a great shock to many of the voters who are 
voting for one of them, and it will come as a shock, no doubt, to some 
of the people they nominate to know that if, for example, a President 
Bush or a President Kerry picks a new Secretary of HHS or Secretary of 
Education or Secretary of Defense, to begin with, that person is not 
allowed to go to the office of the Secretary of Defense or the 
Secretary of HHS or the Secretary of Education until he or she is 
confirmed by the Senate.
  In other words, here we are in a war on terror. The President says he 
has a new appointment requiring Presidential confirmation, let's say 
for Secretary of State. That person is not allowed, out of courtesy to 
this body, to go into the office of the Secretary of State until we 
confirm them. One might say, well, there is nothing so wrong about 
that. That should not take more than a few days, with the kind of well-
known person the President would probably pick--someone, for example, 
of the stature of Colin Powell.
  I will give you an example of why it takes longer than a few days. 
The Presiding Officer, the Senator from Connecticut, the Senator from 
Maine, all of us remember and know well Senator Howard Baker, who was 
the majority leader of this body. Senator Baker, at one time, if memory 
serves me correctly, was selected as the most admired Senator in a poll 
participated in by both Democratic Senators and Republican Senators. He 
is known pretty well. He is today the Ambassador to Japan, nominated by 
President Bush. The Japanese consider that to be a great compliment to 
the country, to have someone of such stature.

  However, Howard Baker reminded me this week when I called him that 
when he was nominated by the President to be Ambassador to Japan, it 
took him weeks to fill out the forms to be approved by the FBI, 
approved by the Government Ethics Office, nominated by the President, 
and confirmed by the Senate. He told me specifically that he spent more 
money hiring people to help him fill out his forms accurately so he 
would not go to jail by making a mistake than he made in his first year 
as Ambassador to Japan.
  Let's think of that. Here is a highly respected individual, at the 
time 75 or 76 years old. He has been filling out forms for 18 years as 
a Member of this body. He has run for President. He has been White 
House Chief of Staff. He is the most admired Senator. Yet by our

[[Page S10200]]

requirements it takes several weeks of his time, and he spends more 
money hiring people to fill out his forms than he made in his first 
year in his Government job.
  That is preposterous. That is a preposterous result.
  He further told me he had another little issue with the Government 
Ethics Office. Senator Baker is now married to former Senator Nancy 
Kassebaum. It is the second marriage for both. When they became 
married, they wanted to keep their estates separate. They jointly owned 
25 head of cattle. This tied up Senator Baker's nomination for some 
time in the Government Ethics Office because the question was jointly 
owning 25 head of cattle would require--just that single fact--Senator 
Kassebaum to have to go through this week-long, very expensive process 
of disclosing everything once more about herself and filling out all 
those forms.
  Finally, in exasperation, Senator Baker simply gave his half interest 
in the 25 head of cattle to Senator Kassebaum, and that settled that 
problem.
  This is not so unusual. Senator Baker and Senator Kassebaum are not 
the only Presidential nominees to go through the expense and delay of 
being appointed to a Presidential position.
  I was nominated by the first President Bush as his Education 
Secretary. I was nominated in December of 1990. I was confirmed in I 
believe it was April of 1991. In the meantime, I was not allowed to go 
to the Office of the Secretary of Education.
  During that time, 60 percent of American college students were going 
to colleges and universities followed by a Federal grant or a loan. 
That is supposed to be supervised by the Secretary of Education of a 
President who said he wanted to be the education President. Yet his 
nominee is not allowed to go to the office, out of courtesy to this 
body.
  Then, of course, there is the matter of recruiting a team. I asked 
President Bush at that time: Mr. President, may I come up with a plan? 
May I then recruit a team, subject to your approval, of course? So I 
went to recruit David Kearns, the former head of Xerox, and Diane 
Ravage, one of the most distinguished historians in America, Carolyn 
Reed Wallace, the vice chancellor of the City University of New York.
  All of them, of course, were not allowed to go to their office. Once 
the President nominates and before they are confirmed, they must fill 
out all these forms, maybe not spend as much money as Senator Baker 
did, but the same forms. They must go through this elaborate FBI check. 
They must go through the President's political process, and then they 
come over here. And if there is a divided body--for example, we have a 
Republican President and a Democratic Senate--it takes a little longer.
  What is the point of all this? The point of all this is we cannot get 
our work done. The voters all tune in to a Presidential debate, such as 
we saw last night--two distinguished competitors, both doing pretty 
well, I thought--they take off in January and say: Let's go this way 
and what happens? There is nobody to work for them. They cannot even go 
to their offices. They are all down here filling out forms that are 
going to cost them more than they make in their first year.
  This is a problem. Who is at fault? A lot of places are at fault. 
Partisan politics is sometimes at fault. When I was going through 
confirmation, I went around to see another former Member of this body, 
Senator Warren Rudman. He told me what happened in 1976. He was 
nominated by President Ford to the Federal Communications Commission, I 
believe, and a Senator from New Hampshire put a hold on his nomination.
  It went along that way until the people of New Hampshire said: What 
is wrong with Warren Rudman? He must be a crook, he must have stolen 
something or else the Senate would be acting on his nomination. Out of 
embarrassment, Warren Rudman, a private citizen, asked President Ford 
to withdraw his name from consideration in the Senate. Then Senator 
Rudman ran against the Senator who put a hold on his name, defeated 
him, and served in this body.
  I am not sure we can pass any law or change any rule that will 
prevent that kind of partisan politics, but we should be aware that is 
part of the problem.
  Senator Voinovich's amendment does address some areas we can fix. One 
is there may be too many jobs subject to this kind of intensive review. 
Mr. President, 3,361 is a lot of Presidential appointments to have to 
go through that time-consuming, weeks-long process. It is too many jobs 
to leave vacant at the beginning of a new administration when we all 
expect a new President to come in and say: Let's go in this direction. 
It is too many jobs to leave vacant, the 9/11 Commission said, 
especially when we are dealing with the national security of the United 
States, and a great many of those men and women are people we are 
relying upon to protect us.
  The FBI review takes a long time. Maybe that could be simplified. If 
they are doing 3,361 FBI reviews at one time and the FBI's major goal 
is supposed to be counterterrorism, maybe that is something we should 
be looking at as well.
  Then we get busy. An example exists today, and this is in no way 
criticism, but it is an example of how we get busy. The President on 
May 20 nominated Edwin Williamson to be Director of the Office of 
Ethics for our Government. This is the very office that contributes to 
a lot of the questions and reviews that slow down the process. That was 
May 20. His hearing before the full committee is next week.
  Everyone in the Senate can understand the Governmental Affairs 
Committee has been busy the last 8 weeks, but, nevertheless, we have a 
process that when we get busy, sometimes we contribute to the delay.

  So the Voinovich amendment does not by itself solve the problem. It 
sets in motion a series of reviews and studies and discussions that 
might help solve the problem.
  The reason for my coming to the floor today is to say to the 
distinguished Senator from Connecticut and to the distinguished Senator 
from Maine, and the President pro tempore, I hope we keep this high 
enough on our agenda that it does not slip to the back page again. 
Former Senator Fred Thompson prepared legislation on this issue. This 
is a lot like many of the issues that have come up with national 
intelligence reform. There have been about 30 or so reviews since World 
War II on national intelligence reform, and they often slip to the back 
pages, to the back burner, and we do not get it done.
  This time we are getting it done. We have also taken steps on another 
so-called back-burner issue, as the 9/11 Commission put it and that is, 
speeding up the nomination--financial reporting, security clearances, 
and confirmation process for officials nominated by the President at 
the start of an administration. It is my hope that over the next year, 
the reviews mentioned in the Voinovich amendment will go forward, that 
we will simplify the process. Of course, for the national security 
officials, we can all see the urgent need for that.
  Of course, we do not want them sitting outside their offices next 
February out of courtesy to us when there is some attack on the United 
States that they might have helped prevent, but at the same time we do 
not want students going to college with some Secretary of Education 
sitting outside his office not allowed to go in. We do not want Head 
Start dollars being spent with some Secretary of Health and Human 
Services sitting outside her offices not allowed to go in. We need to 
have firm deadlines and firm dates, simplified forms, out of respect to 
the people the President nominates, out of respect to the voters who 
expect a President to be able to act, and out of respect to ourselves.
  There will occasionally be a nominee--we are not talking about 
judicial nominees--there will occasionally be one of the 3,361 
executive nominations where this is a problem, that requires an 
extended debate--and we are fully capable of doing that in the Senate--
but the rest of the nominations ought to speed through on a fairly 
automatic, simplified review, allowing the executive branch to be in a 
position to see urgent needs, develop a strategy, and try to persuade 
half of us that he is right, which is the job of the President.
  I thank the managers of the bill for this time. I applaud them for 
their bipartisan action on this bill and their work on the committee. I 
am glad they adopted the amendment yesterday, and I look forward to 
working with them

[[Page S10201]]

over the next several months to see that it does not slide back to the 
back burner and get lost so that men of the stature of Howard Baker 
have to spend more than they earn in their first year in Government 
filling out the forms we require of them even though we have known them 
and known everything about them for 25 years.
  I yield the floor.
  The PRESIDENT pro tempore. The Senator from Connecticut.
  Mr. LIEBERMAN. Mr. President, I rise first to thank the Senator from 
Tennessee for taking the time to come to the Senate floor to express 
his thoughts, which he has talked to Senator Collins and me about 
earlier. I admire his focus on this area as well as the work and focus 
of the Senator from Ohio, Mr. Voinovich.
  The fact is that this is one of those aspects of governmental process 
and procedure that never gets much public attention but has great 
consequences for the public, and in this case it is relevant to the 
underlying bill for national security. There is not much political plus 
in making this a matter one focuses on in the sense that it does not 
get headlines, but it is a critically important matter because, as the 
Senator says so well and eloquently, the delay caused in confirming the 
nominees has an effect on the quality of public service, in fact has an 
effect on the content of national security if people cannot be put into 
the positions where they are needed early enough.
  So I thank the Senator. I encourage the Senator--although I probably 
do not have to--to stay aggressive, to make sure that not only the 
amendment the Senator from Tennessee and the Senator from Ohio 
sponsored yesterday that was adopted on the bill is put into place but, 
more generally, to make sure we fix this.
  The Senator from Tennessee has some great anecdotes, too. It is 
pretty startling to have heard that Howard Baker, a great former Member 
of this body, spent more time filling out the forms, hiring people to 
help him fill out the forms, to be Ambassador to Japan than he was 
going to receive as a salary for the first year of his service. That 
ought not to happen. Obviously, one of the things that also does, which 
the Senator knows and has spoken to, is discourage people who may not 
have the resources to pay for that kind of consultation from going into 
public service where we need them.
  I thank my friend from Tennessee.
  I rise briefly to speak in support of the--Mr. President, I am going 
to hold this statement, which is of a timeless nature, so I can deliver 
it, I am sure, at any point in the day where there may be a lull. This 
time was devoted to Senator Byrd to offer an amendment. I did not 
realize he was here. I welcome him to the Chamber and look forward to 
hearing his statement.
  The PRESIDENT pro tempore. The Senator from West Virginia.
  Mr. BYRD. Mr. President, I ask unanimous consent to offer an 
amendment that affects the bill in more than one place. I have cleared 
this with the two managers.
  The PRESIDENT pro tempore. Is there objection to the request?
  Without objection, it is so ordered


                           Amendment No. 3845

  Mr. BYRD. Mr. President, I call up amendment No. 3845.
  The PRESIDENT pro tempore. Without objection, the pending amendment 
is set aside.
  The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from West Virginia [Mr. Byrd], for himself, Mr. 
     Stevens, Mr. Inouye, Mr. Warner, Mr. Harkin and Mr. Johnson, 
     proposes an amendment numbered 3845.

  Mr. BYRD. Mr. President, I ask unanimous consent that the reading of 
the amendment be dispensed with.
  The PRESIDENT pro tempore. Without objection, it is so ordered.
  The amendment is as follows:

   (Purpose: To enhance the role of Congress in the oversight of the 
 intelligence and intelligence-related activities of the United States 
                              Government)

       On page 10, between lines 16 and 17, insert the following:
       (d) Removal.--The National Intelligence Director may be 
     removed from office by the President. The President shall 
     communicate to each House of Congress the reasons for the 
     removal of a National Intelligence Director from office.
       On page 10, line 17, strike ``(d)'' and insert ``(e)''.
       On page 11, line 3, strike ``(e)'' and insert ``(f)''.
       On page 11, line 5, strike ``subsection (c)'' and insert 
     ``subsection (e)''.
       On page 22, line 11, strike ``(f) and (g)'' and insert 
     ``(e), (f), and (g)''.
       On page 24, beginning on line 1, strike ``, pursuant to 
     subsection (e),''.
       On page 24, strike line 8 and all that follows through age 
     25, line 20.
       On page 25, line 21, strike ``(f)'' and insert ``(e)''.
       On page 27, strike line 1 and all that follows through page 
     30, line 22, and insert the following:
       (f) Role of National Intelligence Director in 
     Reprogramming.--(1) No funds made available under the 
     National Intelligence Program may be transferred or 
     reprogrammed without the prior approval of the National 
     Intelligence Director, except in accordance with procedures 
     prescribed by the National Intelligence Director.
       (2) The Secretary of Defense shall consult with the 
     National Intelligence Director before transferring or 
     reprogramming funds made available under the Joint Military 
     Intelligence Program.
       (g) Transfer of Funds or Personnel Within National 
     Intelligence Program.--(1) In addition to any other 
     authorities available under law for such purposes, the 
     National Intelligence Director, with the approval of the 
     Director of the Office of Management and Budget--
       (A) may transfer funds appropriated for a program within 
     the National Intelligence Program to another such program; 
     and
       (B) in accordance with procedures to be developed by the 
     National Intelligence Director, the heads of the departments 
     and agencies concerned may transfer personnel authorized for 
     an element of the intelligence community to another such 
     element for periods up to one year.
       (2) The amounts available for transfer in the National 
     Intelligence Program in any given fiscal year, and the terms 
     and conditions governing such transfers, are subject to the 
     provisions of annual appropriations Acts and this subsection.
       (3)(A) A transfer of funds or personnel may be made under 
     this subsection only if--
       (i) the funds or personnel are being transferred to an 
     activity that is a higher priority intelligence activity;
       (ii) the need for funds or personnel for such activity is 
     based on unforeseen requirements;
       (iii) the transfer does not involve a transfer of funds to 
     the Reserve for Contingencies of the National Intelligence 
     Director;
       (iv) in the case of a transfer of funds, the transfer 
     results in a cumulative transfer of funds out of any 
     department, agency, or element, as appropriate, funded in the 
     National Intelligence Program in a single fiscal year--
       (I) that is less than $100,000,000; and
       (II) that is less than 5 percent of amounts available to 
     such department, agency, or element; and
       (v) the transfer does not terminate a program.
       (B) A transfer may be made without regard to a limitation 
     set forth in clause (iv) or (v) of subparagraph (A) if the 
     transfer has the concurrence of the head of the department, 
     agency, or element concerned. The authority to provide such 
     concurrence may only be delegated by the head of the 
     department, agency, or element concerned to the deputy of 
     such officer.
       (4) Funds transferred under this subsection shall remain 
     available for the same period as the appropriations account 
     to which transferred.
       (5) Any transfer of funds under this subsection shall be 
     carried out in accordance with existing procedures applicable 
     to reprogramming notifications for the appropriate 
     congressional committees. Any proposed transfer for which 
     notice is given to the appropriate congressional committees 
     shall be accompanied by a report explaining the nature of the 
     proposed transfer and how it satisfies the requirements of 
     this subsection. In addition, the congressional intelligence 
     committees shall be promptly notified of any transfer of 
     funds made pursuant to this subsection in any case in which 
     the transfer would not have otherwise required reprogramming 
     notification under procedures in effect as of the date of the 
     enactment of this subsection.
       (6)(A) The National Intelligence Director shall promptly 
     submit a report on any transfer of personnel under this 
     subsection to--
       (i) the congressional intelligence committees;
       (ii) the Committee on Appropriations of the Senate and the 
     Committee on Appropriations of the House of Representatives;
       (iii) in the case of the transfer of personnel to or from 
     the Department of Defense, the Committee on Armed Services of 
     the Senate and the Committee on Armed Services of the House 
     of Representatives; and
       (iv) in the case of the transfer of personnel to or from 
     the Department of Justice, to the Committees on the Judiciary 
     of the Senate and the House of Representatives.
       (B) The Director shall include in any such report an 
     explanation of the nature of the transfer and how it 
     satisfies the requirements of this subsection.
       On page 47, line 19, insert before the period the following 
     ``, by and with the advice and consent of the Senate''.
       On page 53, line 2, insert before the period the following 
     ``, by and with the advice and consent of the Senate''.
       On page 55, beginning on line 5, strike ``the National 
     Intelligence Director'' and insert

[[Page S10202]]

     ``the President, by and with the advice and consent of the 
     Senate''.
       On page 60, beginning on line 14, strike ``appropriately''.
       On page 61, line 11, insert ``and Congress'' after 
     ``Director''.
       On page 61, line 21, strike ``significant''.
       On page 63, line 16, insert ``and the congressional 
     intelligence committees'' after ``National Intelligence 
     Director''.
       On page 138, beginning on line 21, strike ``and to 
     Congress'' and insert ``, to the Select Committee on 
     Intelligence and the Committees on Appropriations and 
     Governmental Affairs of the Senate, and to the Permanent 
     Select Committee on Intelligence and the Committees on 
     Appropriations and Government Reform of the House of 
     Representatives''.
       On page 140, strike lines 5 through 14 and insert the 
     following:
       (2) Deputy director of management and budget for 
     information sharing.--There is within the Office of 
     Management and Budget a Deputy Director of Management and 
     Budget for Information Sharing who shall be appointed by the 
     President, by and with the advice and consent of the Senate. 
     The Deputy Director shall carry out the day-to-day duties of 
     the Director specified in this section. The Deputy Director 
     shall report directly to the Director of the Office of 
     Management and Budget. The Deputy Director shall be paid at
       On page 174, strike lines 14 through 22.

  Mr. BYRD. Mr. President, I ask unanimous consent that the following 
Senators be added as cosponsors of my amendment: Senators Stevens, 
Inouye, Warner, Harkin, and Johnson.
  The PRESIDENT pro tempore. Without objection, it is so ordered.
  Mr. BYRD. Mr. President, first, I express my appreciation to the two 
managers for their courtesies that they never fail to extend. I also 
want to express my appreciation to the distinguished President pro 
tempore who is in the chair this morning, Senator Stevens, my soulmate 
on the Appropriations Committee.
  In 2001, we witnessed the failure of our Government to utilize its 
intelligence capabilities to protect our Nation against a terrorist 
attack. For too long, the Congress has deferred to the executive branch 
on intelligence matters. Congress has failed to vigorously discharge 
its constitutional oversight responsibilities. I do not say that by way 
of finding fault with any Senator.
  The 9/11 Commission illustrated the dangers of this practice. The 
consequence has been foreign policy failures, prison scandals, 
politicized intelligence that has led not only to a desperate state of 
affairs in Iraq but has also left our Nation vulnerable to further 
terrorist attacks. It is painfully clear that there are dire 
consequences when the Congress abdicates its constitutional duties to 
oversee the intelligence agencies within the executive branch.
  Senators need to be reminded--I need to be reminded as well--that the 
Congress is a consumer of intelligence. Senators must have access to 
good intelligence to make informed decisions about our military, about 
our foreign policy, about the solemn charge to authorize war, and that 
remains a constitutional function, authorization of war.
  I am sorry to say I did not hear anybody in last night's debate on 
either side mention the Constitution of the United States, not once. 
The Constitution gives Congress alone the power to declare war or 
authorize war. The Congress must ensure that it is fully and currently 
informed of all matters that may bear on the exercise of that 
constitutional authority. Senators ought to be cautious about 
intelligence reforms and ensure that the role of the Congress in 
intelligence matters is not undermined. Reform means fixing what has 
gone wrong, not giving the executive branch more authority to conduct 
end runs around the Congress.
  When I speak of the executive branch, I speak generically, both when 
it is under Democratic control and Republican control. We must ensure 
that the top national security officials specified in this bill are 
subject to Senate confirmation so that they are held accountable to the 
elected representatives of the people.
  The first three words in the preamble of the Constitution are, ``We 
the people. . . .'' ``We the people. . . .'' And yet, I say, that 
Constitution was not mentioned once last night.
  We must ensure that Senators have access to information necessary to 
fulfill their Constitutional duties. We must ensure that the Congress 
does not codify loopholes through which the executive can deny the 
Congress relevant information. Perhaps most importantly, we must ensure 
that funds appropriated by the Congress cannot be rerouted without the 
consent of the people's representatives in Congress.
  The Governmental Affairs Committee has ensured accountability to the 
Congress in many of these areas, but I believe more can be done.
  This is an amendment which I have proposed, along with Senators 
Stevens, Inouye, Warner, Harkin, and Johnson to remove the qualifiers 
on Congressional access to information, to ensure that the Congress's 
role in intelligence matters is preserved, and to ensure that the 
American people are protected.
  This amendment requires Senate confirmation of the following 
positions within the National Intelligence Authority and the Office of 
Management and Budget: four deputy national intelligence directors, the 
Officer for Civil Rights and Liberties, the Privacy Officer, and the 
Deputy Director of OMB for Information Sharing. It is vital that the 
Congress have access to these officials and be able to hold them 
accountable for their decisions, particularly in the area of civil 
liberties.
  To further that goal, my amendment requires that the Inspector 
General of the National Intelligence Authority keep the congressional 
intelligence committees fully and currently informed of violations of 
law and civil liberties.
  However, the greatest protection against abuse within the 
intelligence agencies is to monitor closely their budgets. The Congress 
should jealously guard its power of the purse, and, to do that, I have 
worked with Senators Stevens and Inouye to ensure that the authorities 
granted to the national intelligence director to transfer personnel and 
funding within the National Intelligence Program closely reflect 
current law.
  Our amendment strikes language authorizing the Treasury Secretary to 
establish new budget accounts for the use of the national intelligence 
director. This is a function of the Congress, which has the authority 
to determine how accounts should be constructed to fund our national 
intelligence.
  My amendment allows the national intelligence director, with the 
approval of the OMB Director, to transfer appropriated funds within the 
National Intelligence Program, and the heads of the departments and 
agencies to transfer personnel within the intelligence community for 
periods up to 1 year, under the following conditions:
  A transfer of funds or personnel may be made only to an activity that 
is a higher priority; and unforeseen requirement; but not to the 
Reserve for Contingencies of the national intelligence director. The 
cumulative transfer in a single fiscal year must be less than $100 
million and less than 5 percent of amounts available to such 
department, agency, or element; and the transfer of funds cannot 
terminate a program.
  A transfer may be made without regard to the $100 million and 5 
percent limitation if the transfer has the concurrence of the head of 
the department, agency, or entity concerned--provided, always, that the 
transfer conforms with the strict limitations set by the Congress each 
year in its annual appropriations acts.
  Funds transferred shall remain available for the same period as the 
appropriations account to which transferred; and any transfer of funds 
or personnel shall be reported to the appropriate congressional 
committees, such as Appropriations, Judiciary, Armed Services, and 
Intelligence.
  I am confident that if these qualifications are adhered to, the power 
of the purse will continue to rest safely in the hands of the people's 
elected representatives.
  In addition, Senators should take note of Section 224(b)(3) of the 
pending bill, which would permit the national intelligence director, 
the Director of the National Counterterrorism Center, or the Director 
of a national intelligence center to withhold information requested by 
the Congress if the President certifies that such information will not 
be provided because the President is asserting a privilege pursuant to 
the United States Constitution.
  It is unclear exactly which privilege the President would invoke, 
but, given the vague language contained in this provision, a bold and 
impulsive administration, much like the one currently

[[Page S10203]]

inhabiting the White House, could concoct nearly any excuse to invoke a 
so-called ``privilege'' to withhold documents requested by the 
Congress. Giving any administration an unrestrained green light to 
trump any and all forthcoming Congressional requests for information, 
based on some undefined and nefarious assertion of executive privilege 
as described in this provision, would be an unmitigated disaster. My 
amendment strikes that egregious language.
  It is my hope, as well as the hope of my colleagues who cosponsored 
this measure with me, that this amendment will ensure that the 
Congress's Constitutional role in intelligence and foreign policy 
matters is safeguarded.
  However, Senators should understand that the statutory authority to 
oversee our intelligence community means very little if it is not 
utilized. We must be vigilant in our oversight. We must be aggressive 
in our inquiries. We must not abdicate our Constitutional duties.
  I urge the adoption of my amendment.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Chambliss). The Senator from Connecticut.
  Mr. LIEBERMAN. Mr. President, needless to say, I thank the Senator 
from West Virginia, whom, as does everyone in the Chamber, I greatly 
admire. He is a real authority on this matter, so I speak both with 
respect and a certain sense of humility.
  This recommendation that Senator Collins and I and our committee 
brought before the Senate rose out of reality. And the reality is that 
we have an intelligence community with a lot of extraordinary people 
and technological assets but, as the 9/11 Commission said, there is no 
one in charge. I repeat, it is like a football team with great players 
but no quarterback. In fact, some of the players, as great as they are, 
are playing in a different stadium than the one where the game is.
  The 9/11 Commission has said to us that its foremost goal, the most 
urgent recommendation it makes to the Congress for what to do if we 
want to believe that we have done everything we can to prevent a 
terrorist attack of the scope of 9/11 from happening in this country 
again, is to create--establish a strong national intelligence director, 
a leader where there is no leader, a quarterback where there is no 
quarterback. That is what Senator Collins and I have done in our 
proposal.
  A strong national director--but what is the element of strength? It 
is budget authority. It is the power to bring together the agencies 
under the director for a unity of effort, like the joint commands in 
our military which grew out of Goldwater-Nichols, after a period of 
time and a lot of opposition when they were first considered on the 
floor, not dissimilar to some of the opposition and anxiety that has 
been expressed about the national intelligence director in our time. 
They worked extremely well.
  So we have created a strong director with budget authority to 
formulate budgets, to receive funds, to allocate them--with 
justification, not wantonly; to transfer budget, transfer funds to meet 
an emergency; to transfer personnel to achieve a national purpose.
  In our deliberations in the Governmental Affairs Committee we see 
warning after warning that if you are going to do this right, you have 
to give this national intelligence director real power.
  In this morning's paper, the Washington Post, Friday, October 1, an 
article by Charles Babington quotes from a press conference I presume 
by the Chair and Cochair of the 9/11 Commission, Governor Kean, former 
Republican Governor of New Jersey, and Congressman Hamilton, former 
Democratic Congressman from Indiana. Governor Kean says at one point, 
the story says:

       Governor Kean meanwhile spoke sharply against House 
     provisions and proposed Senate amendments that would limit 
     the national intelligence director's authority over spending 
     and personnel decisions in agencies under them.

  It goes on to say:

       The House bill will keep more of that power in the 
     Pentagon.

  Then Governor Kean says:

       On behalf of the nonpartisan commission, this is not an 
     area where one can compromise. If you are not going to create 
     a strong national intelligence director with powers both 
     appointive and over the budget, don't do it.

  I repeat:

       If you are not going to create a strong national 
     intelligence director with powers both appointive and over 
     the budget, don't do it.

  That is the advice we heard over and over again from former Directors 
of Central Intelligence, from experts in the field, from members of the 
Commission.
  I say respectfully that the amendment which Senator Byrd and the 
distinguished list of cosponsors put before us this morning would have 
the effect of weakening the authority of the national intelligence 
director and, therefore, bring us back to the place where we were, 
where there wasn't a strong quarterback, where there wasn't a strong 
general, if you will, of our intelligence forces in the war against 
terrorism.
  As I read it, it strikes the section that establishes accounts for 
the national intelligence program funds under the jurisdiction of the 
national intelligence director, and the national intelligence director 
would control the management, including the allotment of appropriated 
funds to the elements of the intelligence community.
  I would like to have some discussion on this. But as I read one of 
the two parts of this which strike me as most troubling, it is the part 
that seems to say that our attempt in this bill--our clear intention 
stated in the bill--is to make sure that strange situation we have 
where 80 percent of the funding for intelligence, billions and billions 
of dollars, goes not to the intelligence community first but to the 
Department of Defense. The Department of Defense is a critical--in some 
sense, the largest--customer of intelligence, but it is not the only 
customer. The President of the United States is the No. 1 customer. The 
Department of State, the Department of Homeland Security, FBI--one 
could go on and on--they are also important users of intelligence.
  We have said that the funds of the national intelligence program 
budget should go to the national intelligence director and give that 
person the authority that comes with the money to allocate those funds 
throughout the agencies underneath him, and give him thereby some clout 
to create unity of effort, to bring people together, to overcome the 
weaknesses.

  As the 9/11 Commission Report describes it--and Senator Collins and I 
keep telling the story--George Tenet, former Director of Central 
Intelligence, in 1998, after a series of al-Qaida attacks on Americans 
and American targets abroad, declares war on terrorism. It was a 
classified document within the intelligence community and it is now 
public. It states the case very strongly. It says we have to devote all 
of our resources to it, and nothing happened.
  Senator Byrd is a great student of the Bible. I so appreciate it. He 
brought it with him to the Senate floor yesterday. I take this 
opportunity to quote from the Bible. Perhaps it was from Corinthians. 
``If the sound of the trumpet be uncertain, who will follow into 
battle?''
  My worry here is that in this case, the trumpet is money. If the 
authority of the national intelligence director over the funds is 
uncertain, then I worry that the troops are not going to follow them 
into battle just as they didn't follow George Tenet when they declared 
war or terrorists and terrorism in 1998. We might have even been better 
off and maybe even have avoided 9/11 if something had happened in 
response to that.
  This amendment seems to say that the money we want to go to the 
national intelligence director can't because in our attempt to 
establish accounts, we now, in this act of Congress--Senator Byrd is 
absolutely right, this is a congressional decision, but we are offering 
our colleagues that decision, which is to set up those accounts in the 
Treasury Department for the national intelligence director so that 
director can receive the funds and then allocate them.
  Second, the two elements of authority for the national intelligence 
director as the general of our intelligence forces are to transfer 
personnel and funds. I appreciate the fact that this amendment does not 
take away that authority, and when Senator Collins and I started out, 
we worried people

[[Page S10204]]

would resist that authority altogether in the national intelligence 
director. So I appreciate that. But it does limit the authority of the 
director to transfer personnel and money in a way that I think weakens 
the director and undercuts the purpose we want and the reasons we want 
them to be powerful, to give this intelligence force the flexibility to 
focus, the agility to respond to realities in the world.
  These terrorists are not only brutal, not only inhumane, not only 
don't value human life, not only convince themselves zealously that 
they are doing God's work by killing God's children wantonly, but they 
are agile. They will look for weaknesses in the system and move to 
attack. That is why the national intelligence director has to have the 
ability to move money quickly. It may be that there is a crisis area 
somewhere or a new kind of threat to the United States and the director 
decides he has to move funds to meet that threat.
  This is not an authority that is unlimited or even beyond the control 
of the law today. Our bill makes sure that there is congressional 
oversight on the transfer of the funds. The amendment would limit the 
transfer of funds. It would have to be less than $100 million and less 
than 5 percent of the budget of the entity from which the money is 
being transferred unless the relevant department head concurs in the 
transfer.

  I want to assure the Chamber and Senator Byrd that our amendment, 
though it does not put those limits on the transfer because we don't 
know what kind of threat may emerge and where the national intelligence 
director may feel in the national interest he wants to move those 
funds, makes sure there is congressional oversight. It provides that 
any transfer of funds by the national intelligence director must be 
carried out in accordance with the existing congressional notification 
procedures. Congress still has the right to approve.
  Moreover, the national intelligence director is required to submit a 
report to the appropriate committees of Congress explaining the nature 
of the transfer and how it meets the relevant statutory requirements.
  Finally, our bill also requires that any transfer of funds or 
personnel not exceed applicable ceilings established in law for such.
  This means that while we are setting the standard for the national 
intelligence director, Congress each year as it adopts the budget 
reserves the right to put instructions in that. I might oppose it, but 
it includes the possibility of limiting the transfers, as has happened 
in the past. We wanted to make sure--in some sense to reassure 
ourselves and our appropriators--that this bill says that any transfer 
of funds or personnel would not exceed applicable ceilings established 
in law for such transfers.
  We want to provide the national intelligence director with the 
necessary flexibility and force to respond with speed to a crisis, and 
not establish, therefore, permanent caps on this legislation that might 
hinder the director's ability to make those changes that are necessary.

  Under the current system, the DCI lacks budget power. DOD controls 80 
percent of the intelligence budget, whereas the director of central 
intelligence effectively only controls a budget of one agency, the CIA.
  Secretary Powell commented on this current reality at our hearing on 
September 13, 2004, by saying:

       The DCI was there before but the DCI did not have that kind 
     of authority, and in this town it's budget authority that 
     counts.

  Chairman Kean and Vice Chairman Hamilton said in their testimony at 
our first hearing on July 30:

       The national intelligence director would not be like other 
     czars who get the title but have no meaningful authority. He 
     will control national intelligence program purse strings.

  For those reasons, respectfully, this amendment would seriously 
weaken the authority of the national intelligence director, and 
therefore, I believe, the director's ability to protect our national 
security in an age of terrorism.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Mr. President, before I comment on the specifics of the 
amendment of the Senator from West Virginia, let me join Senator 
Lieberman in expressing the utmost respect that I have for the Senator 
from West Virginia. His devotion to the Constitution, to the Senate, to 
the country, and to his family is truly legendary. I have learned so 
much just from watching the Senator from West Virginia. In fact, he 
inspired me to get a copy of the Constitution, and while I don't carry 
it with me as he does, I have it in my briefcase. It was his example 
that inspired me to do that.
  Like Senator Lieberman, I have, nevertheless, many concerns about the 
pending amendment. In drafting our bill, we made very clear the 
authority that the new national intelligence director would have. We 
did not want to simply create another layer of bureaucracy. What we 
wanted to do is to empower the NID with significant budget personnel, 
standard-setting authority, so that this individual could make a 
difference.
  I remember in the testimony before our committee the consensus among 
the witnesses was that in order for the NID to be effective, strong 
authority was absolutely critical. Indeed, the assistant DCI for 
community management said it very forthrightly. He testified as 
follows:

       We must be flexible in shifting people and money to respond 
     to emerging priorities. Today's intelligence budget system 
     does not meet this criteria.

  Senator Byrd's amendment imposes significant restrictions on the 
ability of NID to transfer personnel and to transfer funds. That 
concerns me greatly.
  Under the Collins-Lieberman bill, with OMB approval, the NID may 
transfer or reprogram funds appropriated for a program within the 
national intelligence budget to another program. The NID is required to 
consult with the heads of the affected agencies prior to implementing 
such a reprogramming or transfer, but our bill does not require their 
approval. We make very clear that the reprogramming and transferring 
approvals and restrictions as far as congressional authority are 
included in our bill, as well.
  If we require the concurrence of the agency heads before personnel or 
money can be moved around, we essentially have made no improvement in 
the current system. That is not progress. In fact, it is exactly the 
problem the 9/11 Commission identified over and over again as a major 
flaw in the current system.
  The NID needs to be able to marshal the people, the funds, and the 
resources necessary to counter the threats we face. That is the bottom 
line.
  The current authorities for the DCI are insufficient because they 
permit agencies to prevent the DCI from transferring funds or people 
simply by objective. That is what we need to change.
  I am also concerned about making additional positions created by this 
bill subject to Senate confirmation. The privacy and civil rights 
officers at the Department of Homeland Security are not Senate-
confirmed positions. I see no reason for treating the privacy and civil 
rights officers that would be created by this bill any differently.
  There is another point that I make about the restrictions in the 
Senator's amendments on reprogramming and transfer authority. That is, 
if we are going to impose these kinds of restrictions, we are not 
improving the system in any significant way, and we are allowing the 
long delays that plague the current system to continue.
  Acting CIA Director John McLaughlin told me it can take as long as 5 
months for him to reprogram funds. In the threat environment we face 
today, we cannot afford a 5-month delay in transferring urgently needed 
funds to counter the threat we face.
  The amendment of the Senator from West Virginia would represent a 
significant weakening of the authority in this bill, and I urge my 
colleagues to oppose it.
  The PRESIDING OFFICER (Mrs. Dole). The Senator from West Virginia.
  Mr. BYRD. Walt Whitman said:

       A man is a great thing upon the Earth, and through 
     eternity--but every jot of greatness of man is unfolded out 
     of woman.

  So let me pay tribute to our Presiding Officer at this moment.
  Madam President, I have the utmost respect for the two managers of 
this bill. I have the utmost respect for their

[[Page S10205]]

dedication and for the knowledge which they bring to bear upon this 
subject. I am not a member of the committee that has jurisdiction over 
the legislation before the Senate. So I salute them and tip my hat to 
them and bow to them.
  So what I say is certainly in no fashion, in no way or form any 
criticism of them. They are doing the best they can do.

  But the Constitution of the United States still lives. It still 
governs. Let's read this paragraph from section 9 of the U.S. 
Constitution:

       No money shall be drawn from the Treasury, but in 
     Consequence of Appropriations made by Law; and a regular 
     Statement and Account of the Receipts and Expenditures of all 
     public Money shall be published from time to time.

  Let these words sink in:

     . . . and a regular Statement and Account of the Receipts and 
     Expenditures of all public Money shall be published from time 
     to time.

  We have to keep that provision in mind.
  The amendment I have offered today simply ensures that the national 
intelligence director spends money in accordance with the annual 
appropriations bills. It provides the flexibility that the director may 
require but limits that flexibility to the laws passed by Congress and 
to the knowledge that there is this provision:

     . . . a regular Statement and Account of the Receipts and 
     Expenditures of all public money--

  ``All public money.''

     . . . all public money shall be published from time to time.

  We cannot allow this national intelligence director to spend the 
people's tax dollars without restraint, without some limitation, 
without some restraint. A $40 billion blank check? We cannot allow the 
national intelligence director to spend money without regard to 
Congress. There must be some limitations on his spending authority.
  Without this amendment, the intelligence director, and not the 
Congress, will determine how certain appropriated moneys are spent. We 
must not remove all limitations on this new intelligence director. If 
we yield the power of the purse to this new intelligence director, then 
we have only limited means to rein him in if there are abuses of power.
  My amendment limits the transfer of appropriations to $100 million 
and even allows the Department heads to waive that limitation as long 
as it is consistent with appropriations law. That, it seems to me, 
should be more than enough flexibility. We must retain some limitation. 
The intelligence director must not be allowed to write his own 
appropriations bill. That would elevate him above the Congress. That 
will elevate him, an intelligence director, above the people's elected 
representatives in Congress.
  We talk about the trumpet that gives an uncertain sound. Yes. How can 
we be certain as to what we are doing when we are rushed and pressured 
into passing legislation as major as this legislation in such a limited 
time, which is hours? We are being pressured to pass this legislation 
before we adjourn sine die. This is massive legislation. It is far-
reaching legislation. The Congress should not have to operate under a 
hammer, as we are being driven here.
  Henry Kissinger came before the Appropriations Committee when Senator 
Stevens held those hearings. I compliment my chairman, Mr. Stevens, on 
having those hearings. Henry Kissinger, a man with vast experience, 
vast knowledge, advised us not to pass this gargantuan measure in such 
a hurry and under such pressure and during a Presidential campaign.
  I say to my colleagues, we ought not bend to the lash of the whip on 
the part of the leadership, on the part of the administration, on the 
part of anyone else. We should take more time. We do not know what we 
are doing here. I am seeking to protect the people's representatives 
and the Congress from making what could be a major mistake.

  We were rushed into passing legislation creating a Department of 
Homeland Security, were we not? I tried to get more time. I tried to 
get the leadership on both sides to listen. They would not listen. Now 
we find that there are major problems with that Department.
  On that fateful occasion on October 11, when the Senate voted to 
shift the constitutional power to declare war from the Congress--not 
just one body of Congress, but both bodies of Congress--to one man, oh, 
what a terrible mistake that was, what a terrible error. We were told: 
Let's get it behind us. Let's get it behind us. Let's get it behind us. 
The idea was to get that legislation passed before that election. So 
the Senate passed that legislation in a hurry, on October 11 of that 
year.
  Oh, we will always rue that day that the Senate bent to the urgings 
of the leadership, which said: Let's get it behind us. We have not 
gotten it behind us. We did not get it behind us. I said at the time we 
would not get it behind us. I said at the time that the President, Mr. 
Bush, would not let us get it behind us. That was what he wanted. He 
wanted the Senate to bend in that critical hour before an election so 
that the Senators who voted on that measure would be somehow conscious 
that there was an election down the road, and particularly those who 
were running would be under the whiplash of an election.
  Oh, what a terrible mistake. I felt so ashamed. For the first time in 
my 46 years in this Senate, I felt ashamed that the Senate was 
knuckling under to the executive branch and making a mistake which is 
rued to this day and will be rued to the end of time. That blotch upon 
the escutcheon of this great body, the first time in my 46 years that I 
was ashamed, this Senate stood mute. It stood bowed. It was 
intimidated.
  And we can make another mistake if we go and rush in too big a hurry. 
We are doing a big thing here. I do not set myself up as anyone who has 
the vast knowledge that Mr. Lieberman has or that Ms. Collins has over 
this subject matter. I am not on that committee. But I do know when we 
are being pressured to act in too big a hurry. This is a big bill. Why 
can't we wait until after the first of the year? Why can't we wait 
until a new Congress, perhaps with a new President--who knows?--a new 
Chief Executive? Why can't we wait and do the job right? This is a job 
that we ought to do right and not do it under the gun.
  I do not know what is in this bill. I am not on the committee. I do 
not know what is in this bill. I do not claim to know what is in the 
bill. But I tell you, we must not remove all limitations on this new 
intelligence director. Why, this man is going to be God when it comes 
to appropriations and legislation and matters affecting the people.
  This is the perfect example of how we are rushing through this 
intelligence bill without fully understanding what we are doing. I do 
not understand what we are doing, and I need to understand what we are 
doing. To properly represent the people from West Virginia, I need to 
understand what we are doing.
  Now, fortunately, I have a good colleague on the Intelligence 
Committee, Senator Rockefeller. But I tell you, we are dealing with 
matters that go to the heart--the heart--of a free government.
  Englishmen spilled their blood for centuries to wield the power of 
the purse away from monarchs in England. They shed their blood, 
yes, going all the way back to the Magna Carta, the great charter, in 
1215. It was signed on the banks of the Thames River.

  I think we ought to go a little slower. This is a perfect example of 
how we are rushing through this intelligence bill. I say it with all 
due respect to Senator Lieberman and Senator Collins. I admire them, 
but I admire the Constitution also. I think we ought to stop, look, and 
listen, and slow down a little bit here.
  Without this amendment, the Congress will cede its power of the purse 
just as it ceded the authority to declare war 2 years ago. We owe it to 
the 9/11 families to get this right. I say to my staff all the time: If 
you don't do the job right, how are you going to find time to do it 
over? That applies in this instance, too. I say that with all due 
respect.
  There is nothing to keep my colleague--my cherished friend, for whom 
I have great admiration--from coming back next year, from sitting in 
the driver's seat and doing this thing and doing it perhaps better than 
he has done it in the first instance. I have no doubt that he would go 
at it with a will.
  In the long run, the victims of 9/11 will not forgive us if we give 
away the

[[Page S10206]]

power of the purse. And don't forget, it is not just that first 
sentence. There is more to it than the first sentence:

       No money shall be drawn from the Treasury, but in 
     Consequence of Appropriations made by Law; and a regular 
     Statement and Account of the Receipts and Expenditures of 
     all--

  Not just some, all--

     public Money shall be published from time to time.

  Better ponder that bit of verbiage before we get in too big a hurry 
here.
  We will have some opportunities to talk further about this amendment. 
In sitting down, let me again pay homage to my friend, a public servant 
whom I long have admired, and this fine lady. I tell you, she is a 
stalwart. But God save the Constitution. God save it. Let's don't be in 
too big a hurry. Take a little more time and do it right.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. LIEBERMAN. Madam President, let me first thank the Senator from 
West Virginia for his kind words. The truth is, these are critically 
important matters we are debating. I feel a sense of responsibility and 
honor in having the opportunity to speak to them. But I must say, to be 
involved in a debate such as this with the Senator from West Virginia 
is in itself an honor.
  We disagree on this particular amendment, but I so respect the core 
of his values that motivate him and guide him every day. I know he only 
wishes the best for our country and for our Congress. I don't say it 
lightly. I hope he understands these are not reflexive words and 
praise. It is an honor to be involved in this kind of debate with the 
Senator from West Virginia, who is a very vital Member of the Senate 
today but a part of Senate and American history. I thank him very much 
for caring enough about what we are doing to come here this morning and 
offer this amendment.
  Of course, he is the man who carries the Constitution right by his 
heart and reminds us of what it requires of us. It is a founding 
document. It is in many ways a sacred document to all of us Americans. 
I assure him, with regard to the sections of the Constitution he read 
about the appropriate allocation of responsibility of the Congress and 
the executive branch regarding fiscal decisions, there is nothing in 
this bill Senator Collins and I bring to the Senate that would alter 
that balance in any way. I will speak to that in a bit.
  There is an alteration of authority and power in this proposal 
Senator Collins and I have made, but it is not altering the existing, 
constitutionally based power relationship between Congress and the 
executive. It does alter the allocation of authority and money and, 
therefore, power between various agencies of the executive branch. But 
there is no change in the congressional-executive relationship.
  Yes, there are some necessary changes in the relationship between the 
Department of Defense, CIA, FBI, and a new national intelligence 
director who gains power here. So some may have to give up a little 
bit, but that is in the national interest. That is the first point I 
want to assure the Senator on.
  Senator Collins and I are not only devoted to the Constitution, we 
are devoted to the critical role the Constitution gives Congress in 
these matters. I want to assure the Senator, again, that we have done 
nothing to alter the authority of Congress.
  I will read from page 28 of our bill, section (4). This is the 
section that goes to the transfer authority of the national 
intelligence director. On line 23, it reads:

       Any transfer of funds under this subsection shall be 
     carried out in accordance with existing procedures applicable 
     to reprogramming notifications for the appropriate 
     congressional committees.

  Then it goes on:

       The National Intelligence Director shall promptly submit to 
     the appropriate committees of Congress a report on any 
     transfer of personnel made pursuant to this subsection.

  Of course, there is a section in here that ``requires any transfer of 
funds or personnel not exceed applicable ceilings established in law 
for such transfers.'' So any succeeding Congress reserves the right to 
establish such limits in law, and they will not be altered by the 
Collins-Lieberman proposal.
  The second thing to say is the authority we give the national 
intelligence director--that we believe so strongly that director 
needs--is not without control. No one is going to confuse this director 
with a god, even a god of intelligence. He will be a director of 
intelligence but he will be limited.
  For instance, transfers of personnel and budget will be subject to 
the approval of the Office of Management and Budget.
  So ultimately what does that mean? It means the Commander in Chief 
has to approve. If there is a fear that this national intelligence 
director may do some things that, let's say, the Secretary of Defense 
doesn't like, the Secretary of Defense can go right to the President 
and say I don't like this and please get the OMB director not to 
approve these transfers. The final responsibility for the decision goes 
to where it should be ultimately in our system, which is to the 
President.
  We also require consultation with department heads before transfers 
of budget or money or personnel are made. We require that the transfers 
only be made for what we call a higher priority intelligence activity. 
We don't expect this to be done wantonly. We are not allowing it to be 
done wantonly, to override the appropriations of Congress. We are 
saying we want that director, though, to have the ability, if there is 
a crisis, to move money like a general moving troops to the point where 
the Army is being attacked. As I said earlier, the transfers have to 
occur within applicable ceilings established by law.
  So I say this, finally, to my dear friend and respected colleague 
from West Virginia. There is an urgency here, which is the urgency of 
the terrorist threat that we face. The 9/11 Commission has been clear 
about this. They believe we are in a situation where still, today, no 
one is in charge of our intelligence community. We had testimony before 
our committee in terms of Osama bin Laden, that evil person who 
concocted and directed, or conceived and directed the attack against 
America on 9/11/01, killing almost 3,000 innocent civilians. Obviously, 
he is the No. 1 target for us today. In the hunt for Osama bin Laden, 
there is no one in charge. We have two or three agencies of our 
Government going at this, but there is no one in charge. The national 
intelligence director will put somebody in charge. That is the urgency, 
that we remain at war and we are not organized as well as we should be. 
The urgency is the urgency that a general in combat would feel is clear 
if the enemy is taking advantage of a particular vulnerability in his 
forces. He would move quickly to shore up that vulnerability. That is 
what we are doing as well.
  In closing, families of the victims of September 11 have formed a 
group to advocate, in some ways, in the memory of their husbands, 
wives, fathers, mothers, and children who were lost on September 11, to 
make sure we do what they think we ought to do to protect other 
families from suffering. They sent a letter to Members of Congress a 
week or two ago in which they said:

       Sufficient information necessary to make a decision as to a 
     new, improved structure for the Nation's intelligence 
     community is currently available to all Members of Congress. 
     Opinions may differ as to how improvements are best 
     accomplished, but those differences can be addressed within 
     the framework of the legislation being proposed. There is no 
     excuse for deferring decisionmaking, given the wealth of 
     information available.

  Again, that is from families of the victims of September 11. I 
promised that would be the last word, but this will be the last word. I 
say to the Senator from West Virginia that the very introduction of 
this amendment and the discussion it engenders today between yourself, 
Senator Collins, and me, and hopefully other Members listening and 
involved is part of the process, similar to what we went through in our 
Committee. I think a lot of Members came to the Committee hearings and 
deliberations, and we went on for two days of markup. We had almost 50 
amendments. We conducted a very open discussion. We listened and, in 
some cases, we altered language in the mark we laid down because we 
thought Members made good points. In other cases, we said it hurts the 
purpose of what is required. In the end, because everybody felt we 
worked together and learned a lot, we were very pleased to say the bill 
was reported out unanimously. I must say that one of the

[[Page S10207]]

members, when the roll was called, gave an answer that I had never 
heard before. Instead of saying yea or nay, he said ``barely yea.'' We 
got him just over the threshold.

  My hope is that as a result of the discussion on this amendment, we 
get to a point at the end of the day, or next week, that we can have a 
similarly strong vote that will reflect a confidence that we have all 
together learned, that we have protected our values, constitutionally 
speaking, and our security, and done the best we could and will adopt 
this with a real sense of confidence.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Maine is recognized.
  Ms. COLLINS. Madam President, as we have indicated, the legislation 
before the Senate is the product of a concerted effort by the 
Governmental Affairs Committee to reflect the testimony of more than 
two dozen witnesses at eight hearings. It reflects the recommendations 
of other committees who gave us input into the legislation, and it 
builds upon the work of the 9/11 Commission. But it is important to 
know that the 9/11 Commission did not start from scratch, either. Its 
work takes into account nearly a half century of studies on 
intelligence reform, dating back to the Eisenhower administration. 
Indeed, the calls for reform go back 50 years. For nearly 2 years, the 
9/11 Commission conducted an investigation of unprecedented depth. They 
interviewed more than 1,200 witnesses in 10 countries, yet we hear 
again those who counsel: Not yet; we are going too fast; we should 
wait; we need more information; under the current threat of terrorism, 
the time isn't right; the highly charged political atmosphere of a 
Presidential campaign creates an environment that is not right for such 
an important decision.
  I ask, what more information do we need? If you look at the list of 
witnesses who testified before the 9/11 Commission, before the 
Governmental Affairs Committee, before the Armed Services and 
Intelligence Appropriations Committee, I would say, what point of view 
has not been heard? What area of expertise was not explored? What more 
compelling evidence do we need? I ask, if the time isn't right to act 
now, when will the right time ever come? When will there be no threats? 
When will we be at peace?
  The war against terrorism is likely to have to continue for many 
years. I believe we will have failed the American people if we do not 
act on an issue that is so important to the security of our country.
  I think the chairman of the 9/11 Commission, Thomas Kean, said it 
best when he spoke at our very first committee hearing on July 30 of 
the urgent need to move forward with these reforms. This is what he 
said:

       These people are planning to attack us again, and trying to 
     attack us sooner rather than later. Every delay that we have 
     in changing structures to make that less likely is a delay 
     that the American people can't tolerate.

  I think he said it well. The stakes are too high. The matter before 
us is too compelling. Even as we debate this legislation, we know that 
terrorists are planning to attack our country. We know that we are at 
an increased risk of terrorist attack. We see it all around this 
Capitol at the intersections and with the increased security. How can 
we not act? What more do we need to know?
  If we do not act, I think we will have failed to respond to an urgent 
threat, and we will have failed in our responsibility to do everything 
we can to make our citizens safer.
  Now is not the time to delay. Now is the time to move forward, and to 
move forward with a bill that makes a difference, not a bill that 
tinkers around the edges or makes a few cosmetic changes but, rather, 
with a bill that makes fundamental reforms to respond to deficiencies, 
inadequacies, and flaws that have been identified time and time again 
over 50 years.
  I thank the Chair.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. Madam President, I have no intention of belaboring this 
today. I understand we are going to vote next week, on Monday at 3. I 
hope we will have an opportunity to debate this further on Monday.
  The distinguished Senator, Ms. Collins, has said: What more do we 
need? What other witnesses do we need to hear? Let me name some 
witnesses who are represented by the distinguished Henry Kissinger when 
he appeared before the Appropriations Committee. What an impressive 
bipartisan array of national security experts pleading with Congress 
not to rush these reforms. The list is a list of stars from both sides 
of the aisle, as it were: David Boren, Bill Bradley, Frank Carlucci, 
William Cohen, Robert Gates, John Hamre, Gary Hart, Sam Nunn, Warren 
Rudman, George Shultz, as I have already mentioned, Henry Kissinger.
  These men from both sides, both political parties, men who have held 
preeminent positions in this Government, Republicans and Democrats, 
appeared before the Appropriations Committee and said: Wait, don't act 
in too great a hurry. They have decades of knowledge and experience, 
and yet we stand ready to dismiss their concerns out of hand.
  Let us not be rushed into this. I am not opposed to a national 
intelligence director. I am not opposed to that. Elections are a 
perfect time for a debate but a terrible time for decisionmaking. When 
it comes to intelligence reform, Americans should not settle for 
adjustments that are driven by the calendar instead of by common sense. 
They deserve a thoughtful, comprehensive approach to these critical 
issues.
  I am not saying the distinguished members of that committee were not 
thoughtful. They were. But if, as seems likely, Congress considers it 
is essential to act now on certain structural reforms, we believe it 
has an obligation--I do--to return to this issue early next year in the 
109th Congress to address these issues more comprehensively. It would 
seem to me that--let me say again--such a list, a list of stars, as 
former members of the Government are concerned: David Boren, Bill 
Bradley, Frank Carlucci, William Cohen--so you see, we have former 
Secretaries of Defense here--Roberts Gates, John Hamre, Gary Hart, 
Henry Kissinger, Sam Nunn, Warren Rudman, and George Shultz. These 
luminaries are asking for more time. These witnesses testified before 
the Appropriations Committee, and all of them said: Go slow; go slow.
  Let me tell you who these people are.
  Dr. John Hamre is the CEO at the Center for Strategic and 
International Studies. The others have services and titles that speak 
for themselves. I will not go into these. But I am simply saying we 
need to talk some more about this next week. I hope we will ponder 
carefully. I am not opposed to a national intelligence director, but I 
simply say we should have more time.
  We saw, Madam President, the unwisdom of being in a hurry when it 
came to the invasion of Iraq. Our Government invaded. It won a short 
war, but it had not given proper thought to what would come after, had 
not given proper thought, it had not planned properly and carefully for 
a postwar Iraq. And now look at what is happening. Look at the terrible 
cost, the terrible price this Government is paying--paying with the 
blood of the sons and daughters of our country. Think of it.
  Let's don't be in such a big hurry. Let's take more time.
  Madam President, I shall have more to say at a later time. I thank 
the Chair, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Madam President, I thank the Senator from West Virginia.
  I note the distinguished chairman of the Senate Armed Services 
Committee is now on the floor, and I would like him to proceed whenever 
he wishes.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Madam President, I thank the managers of the bill. Before 
I commence, I wonder if I might comment on the presentation of the 
distinguished Senator from West Virginia, which I was privileged, as 
many others were, to listen to very carefully. It was prepared in his 
usual very thorough style, magnificently delivered. I am going to take 
a close look at it. I thank the Senator for his contribution to this 
effort.
  Mr. BYRD. Madam President, will the distinguished Senator yield?
  Mr. WARNER. Yes.
  Mr. BYRD. Plato thanked the gods for having been born a man. He 
thanked the gods for having been born

[[Page S10208]]

a Greek. He thanked the gods for having let him live in the same age as 
Sophocles. And so I thank the benign hand of destiny for allowing me to 
live at a time and to serve at a time when the great Appropriations 
Committee of the Senate was chaired by the very distinguished Senator 
from the great State that is the mother of Presidents, the State of 
Virginia, a state from which comes the first President of this country, 
the first Commander in Chief of the Nation, George Washington.

  I have always admired Senator Warner. He is a gentleman, first of 
all, and that goes a long way in this body. I thank him for his 
comments. I thank him for his cosponsorship of this amendment, and I 
look forward to what he has to say.
  Right now, I should go to the Hart Building, where a woman who has 
been my wife for 67 years, 4 months, and 2 days, is waiting to see me. 
We are going to have lunch together, thank the Good Lord. So if all 
Senators will allow me to leave the Chamber now, I shall go.
  Mr. WARNER. Madam President, not until I make the following 
observation: First, I thank the Senator for his comments. They are 
undeserved but I appreciate them. I remember how many times on this 
floor the Senator has recounted the importance of his wife's role in 
his career, but the one I always remember--I have only been here a mere 
26 years as compared to my senior colleague--was during my first couple 
of years, and we were going well into the night. The Senator paused to 
say how he used to go to night law school, and although he was a Member 
of Congress and burdened with the duties, she would come with a little 
lunch bag with a carton of milk and a sandwich to tide him over until 
he left the Chamber, whether it was the House or the Senate, and go to 
night law school to get his degree. I always remembered that.
  Give her my warmest regards.
  Mr. BYRD. If the Senator will yield, I thank him for his magnificent 
encomium to my better half, a woman who has guided me and who has 
served her country and her State so well. I thank the Senator for what 
he has just said.


                           Amendment No. 3877

  Mr. WARNER. Madam President, I thank the distinguished managers of 
this bill. I rise now for the purpose of sending an amendment to the 
desk and ask for its immediate consideration. I note that Senator 
Stevens and Senator Inouye are cosponsors of the amendment.
  The PRESIDING OFFICER. Without objection, the pending amendment is 
laid aside.
  The clerk will report.
  The legislative clerk read as follows:

       The Senator from Virginia [Mr. Warner], for himself, Mr. 
     Stevens and Mr. Inouye, proposes an amendment numbered 3877.

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

    (Purpose: To modify the requirements for the concurrence of the 
        National Intelligence Director in certain appointments)

       On page 40, strike line 18 and all that follows through 
     page 41, line 4, and insert the following:
       (b) Concurrence of NID in Certain Appointments Recommended 
     by Secretary of Defense.--(1) In the event of a vacancy in a 
     position referred to in paragraph (2), the Secretary of 
     Defense shall obtain the concurrence of the National 
     Intelligence Director before recommending to the President an 
     individual for nomination to fill such vacancy. If the 
     Director does not concur in the recommendation, the Secretary 
     may make the recommendation to the President without the 
     concurrence of the Director, but shall include in the 
     recommendation a statement that the Director does not concur 
     in the recommendation.
       On page 41, line 12, strike ``Concurrence of'' and insert 
     ``Consultation With''.
       On page 41, beginning on line 15, strike ``obtain the 
     concurrence of'' and insert ``consult with''.

  Mr. WARNER. Madam President, this amendment is for the purpose of 
bringing into realignment what I believe is the proper balance of the 
authorities of the new NID together with the respective Cabinet 
officers, each of whom has some portion of intelligence 
responsibilities remaining, as well as the Director of the FBI.
  I will read the amendment briefly so that colleagues can follow 
exactly what I am trying to do. The amendment says:

       Concurrence of NID in certain appointments recommended by 
     Secretary of Defense. (1) In the event of a vacancy and a 
     position referred to in paragraph (2), the Secretary of 
     Defense shall obtain the concurrence of the National 
     Intelligence Director before recommending to the President an 
     individual for nomination to fill such vacancy. If the 
     Director does not concur in the recommendation, the Secretary 
     may make the recommendation to the President without the 
     concurrence of the Director, but shall include in the 
     recommendation a statement that the Director does not concur 
     in the recommendation.

  It is just to bring into balance the fact that according to my 
research, each of the other departments and agencies that have an 
intelligence role get to recommend, with the concurrence of the Cabinet 
officer or the head of the FBI. This is the one instance with regard to 
these combat agencies where it should be brought in alignment with the 
other methodology and procedures adopted for these important personnel 
selections.
  I draw the attention of the managers to section 117(b) of the bill 
before us. It gives the national intelligence director responsibility 
and authority to recommend appointments for several agencies that 
hopefully will continue to be retained within the Department of 
Defense: The National Security Agency, the National Reconnaissance 
Office, the National Geospatial-Intelligence Agency.
  I say hopefully because we have thus far withstood the very 
significant amendment by the distinguished colleague from Pennsylvania, 
coauthored by the distinguished colleague from Kansas, Mr. Roberts, and 
others. The Senate addressed that and by an overwhelming majority 
literally rejected the taking of these three combat agencies and 
putting them under the direct jurisdiction of the NID.
  Now, that is a concept that was hard fought, decided, and as a 
consequence, hopefully it will remain as it is in the managers' bill.
  The purpose of the amendment was to dislodge the managers' section 
with regard to that. That was rejected by the Senate very resoundingly. 
I believe, therefore, it is appropriate at this time to bring into 
alignment with the other departments and agencies the authority for the 
Secretary of Defense over these three entities which remain in his 
department to make the recommendation to the President with the 
concurrence of the NID, and in those instances where there is 
nonconcurrence the President then would have the benefit of that 
diversity of viewpoints. That is the purpose of this amendment.
  We must remind ourselves that these are combat support agencies in 
the Department of Defense. Under the bill, as of this moment, the 
agencies remain under the authority of the Secretary of Defense.
  Then the interesting aspect of this, which is important to my 
amendment is that in the case of the NSA, this is normally a military 
promotion from two stars to three stars to take on this important 
position of the Director of NSA, and that Director of NSA also serves 
in the position of Deputy Commander U.S. Strategic Command for 
Information, Operations, Planning and Integration, a very critical 
warfighting post. Consequently, these are matters that the Secretary of 
Defense, who is accountable to the President and who has direct line 
authority from the President to the SECDEF to the combat commanders, 
that are important to maintain.

  In the case of the NRO, this is a civilian appointment, to direct the 
activities of the National Reconnaissance Office but is an appointment 
as the Under Secretary of the Air Force. He is dual hatted, again, an 
individual who serves not only in the important post of the 
intelligence NRO but as an Under Secretary of the Air Force in the 
Department of Defense. It is imperative that the Secretary of Defense 
have the authority to make the recommendation together with the 
concurrence of the NID.
  In the case of the NGA, this can be a military appointment similar to 
the NSA. One primary function of the NGA is to meet the mapping needs 
of our military forces. I repeat, the military forces are highly 
dependent upon this agency for the tactical maps that are needed 
wherever they are in the world today facing the challenges and the 
threats to our country.

[[Page S10209]]

  These three appointments, I say most respectfully to the managers, I 
feel ever so strongly should be initiated by the Secretary of Defense 
with a recommendation, and then the statute, if my amendment is 
adopted, will give the concurrence of the NID as an essential part of 
the process.
  Current law provides for the Secretary of Defense to recommend 
appointment of these individuals with the concurrence of the DCI. We 
have clear evidence for many years this system has worked and worked 
well. There are examples where the DCI nonconcurred and the Secretary 
revised the nomination in a manner consistent with gaining the 
concurrence of the Director of the CIA.
  The President has said he does not want anything we do in the area of 
intelligence reform to blur the lines of authority, responsibility, and 
accountability between him and the heads of the departments. I feel my 
amendment will meet that criterion as set forth by the President. I 
strongly urge my colleagues to examine the current provision, examine 
the practice with respect to other departments and agencies in the 
Government, and hopefully I will gain the support of the managers as 
well as of my colleagues and that this amendment will be adopted.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Madam President, for the national intelligence director 
to be truly accountable for the intelligence community, the director 
must have the authority to have a real say in the selection of the 
heads of the principal agencies of the intelligence community. The 9/11 
Commission said that the ability to hire the senior managers is one of 
the key authorities, critical to the success of the national 
intelligence director. It is critical to the success of any leader, but 
particularly it is important for the head of the intelligence 
community. The 9/11 Commission cited the DCI's current lack of this 
power as one of the key flaws in the DCI's authorities.
  Under the Collins-Lieberman bill, the NID will recommend to the 
President nominees to be the directors of the National Security Agency, 
the National Reconnaissance Office, and the National Geospatial-
Intelligence Agency--the agencies known better as NSA, NGA, and NRO. 
The NID is required to obtain the concurrence of the Secretary of 
Defense before recommending the nominees to the President, and if the 
Secretary of Defense does not agree with the recommendations of the 
NID, the director must make that fact known to the President.
  The distinguished chairman of the Armed Services Committee and the 
managers of this bill each agree that these three critical agencies 
should remain within the Department of Defense because of the dual role 
these agencies play. For that reason, we joined forces to oppose the 
amendment offered by the Senator from Pennsylvania that would have 
severed the link between these agencies and the Secretary of Defense, 
the reporting link.
  In our bill, I believe we have taken the right approach. We have left 
these three agencies within the Department of Defense, but we have made 
it clear that there is an important reporting responsibility to the 
national intelligence director and that the national intelligence 
director will choose the individuals to lead these agencies with the 
concurrence of the Secretary of Defense. It is actually the President's 
nomination, but the recommendations would go from the NID with the 
concurrence of the Secretary of Defense.
  Why did we do that? We struck that balance not only because it was 
recommended by the 9/11 Commission, and strongly recommended, but 
because we recognize that these three agencies do not just serve the 
Department of Defense; they are national intelligence assets. They 
provide vital intelligence information throughout the intelligence 
community. In fact, when Senator Lieberman and I met with the head of 
the NSA, he told us he was on the phone far more often with the 
Director of the CIA than he is with the Secretary of Defense.
  These agencies provide critical information to the CIA, to the 
Secretary of State, to the Secretary of Energy, to the Secretary of the 
Treasury--to all those 15 agencies across our Government that vitally 
need intelligence information. That is why we have the heads of these 
agencies recommended by the national intelligence director with the 
concurrence of the Secretary of Defense.
  I point out that if we were to adopt the amendment offered by the 
Senator from Virginia, we are essentially making no change in current 
law. Under current law, the Secretary of Defense recommends the 
appointment of these individuals to the President, and it is the 
Director of Central Intelligence who concurs in the choice. So 
essentially the Senator from Virginia is simply restating current law. 
Current law is not adequate, and we know that that higher authority is 
a key authority. If we are going to hold the national intelligence 
director accountable for the intelligence community, we have to give 
him the authorities he needs to do his job.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. LIEBERMAN. Madam President, I thank my friend from Virginia, the 
chairman of the Senate Armed Services Committee whom I so respect and 
for whom I have such a feeling of personal affection. I probably should 
not say this for the record, Senator Warner, but my wife probably 
wouldn't be happy to hear that I was opposing you. She has all too much 
regard for your judgment and opinions. But nonetheless, I go forward.
  Let me put this amendment in context. In response to the 9/11 
Commission Report, Senator Frist and Senator Daschle sent it to our 
Governmental Affairs Committee to consider and then recommend, on the 
basis of that report, action to the Senate--which we have done. Senator 
Collins and I and the members of the committee essentially built a 
structure, a national intelligence director, a leader for our 
intelligence community where there is none now--what I called a 
quarterback for our intelligence team--where there is no quarterback, a 
general for our intelligence service.
  There have been two amendments put forward, in now this fifth day of 
debate on the bill, that went at the architecture of the structure we 
have recommended. One was by Senator Specter, which would have 
dramatically altered, gone well beyond, what we had. Senator Warner 
knows, because he was good enough to come and speak against the 
amendment; it would have had the new NID in line control of all of 
these intelligence agencies, including those that are housed and will 
continue to be housed in the Defense Department. That was 
overwhelmingly rejected by the Senate.
  Yesterday, there was a different kind of assault on the structure we 
are proposing from our committee in the amendment offered by the 
Senator from South Carolina which I believe and represent would have 
created in name a national intelligence coordinator but given that 
person no authority, no power. It would have been the status quo 
because it would have looked as if we had done something, but we would 
not have done anything.
  That amendment was overwhelmingly defeated.
  I am grateful for both of those votes.
  The amendment which the Senator from Virginia proposes, as in some 
sense the amendment the Senator from West Virginia proposed earlier 
today, does not knock off the structure we have proposed but alters it 
in ways that I fear--certainly cumulatively--would weaken the structure 
and not allow the national intelligence director to play the role the 
9/11 Commission and our committee wants it to play. Is it a big 
difference? No. But one element of strengthening this position of 
national intelligence director is to make the influence of the director 
over our national intelligence agencies--the National Security Agency, 
which deals with signal intelligence and communications that are heard 
in the interest of our national security, the National Reconnaissance 
Organization, which puts satellites up in the air, and the National 
Geospatial Agency, which has all of these remarkable capacities 
technologically to see ground imagery and help our military and other 
intelligence services to do what they have to do to protect us.
  Here is the point: Those are national assets. Of course, they are 
used every

[[Page S10210]]

day by the military, by the Department of Defense. The DOD is a very 
important customer, maybe the most active customer, but not the only 
customer of these assets--of signal intelligence, image intelligence, 
and human intelligence.
  The CIA, as Senator Collins indicated, depends on these satellites 
and the other systems for important intelligence. So does the State 
Department. So does now the Department of Homeland Security, even the 
FBI.
  We are trying to say that these national assets ought to report to 
the national intelligence director, and part of that is to give the 
director the opportunity to start the process for nominating the heads 
of these agencies. That is a change. Now that is done. As Senator 
Collins indicated, with the Secretary of Defense, we want to make a 
slight change. The Secretary of Defense has the right to concur or 
oppose. In most cases this will be worked out between the national 
intelligence director and the Secretary of Defense. Lord knows, they 
and their deputies are working out 100 decisions every day right now. 
But if it is not worked out, the dissent will go to the President, and 
ultimately the President will decide.
  It is a only a difference. The Secretary of Defense will begin the 
process of who is going to head the national agency or the NID. 
Ultimately, the President will decide. Why is that different under our 
bill for these three agencies as opposed to the head of a 
counterterrorism division in the FBI, or that information analysis, 
intelligence, and for infrastructure protection division of Homeland 
Security? Because these three are uniquely national assets. The NSA, 
NRO, and NGA serve all of the community and they ought to be under the 
director of the community, and he or she ought to have the first say in 
who fills that position.
  That is why this is an important part of our structure, and why I 
respectfully oppose the amendment, because it would weaken the 
structure by pulling out a couple of the boards.
  Mr. WARNER. Madam President, will the Senator yield?
  Mr. LIEBERMAN. I certainly will.
  Mr. WARNER. I want to pick up on the last point. I find there is no 
effort to change the authority of the Secretary of State in the 
selection of his people to do the work. But I feel strongly that the 
work done by the Department of State serves the whole community. It 
isn't exclusive to the Secretary of State.
  I bring to the Senator's attention the fact that the Department of 
State had some thoughts at variance with the Central Intelligence 
Agency as related to the aspect of the critical issues relating to the 
weapons of mass destruction. Does the Senator recall that?
  Mr. LIEBERMAN. Through the Chair, the Senator from Virginia is 
absolutely right. I do recall it.
  Mr. WARNER. Therefore, they serve the whole community. And perhaps if 
a caveat on some of that had been brought to the forefront in a more 
strengthened fashion, who knows what the outcome might have been.
  I do not believe the Senator can tell me that the person in the FBI 
who has responsibility isn't serving the entire community. I think the 
Senator ought to go back and reexamine that representation. I do not 
find it strengthened by making an exception for the Secretary of 
Defense as relates to these three individuals.
  For example, I draw on my experience as Secretary of the Navy. There 
was quite a competition when vacancies of the NRO and NSA came up. The 
service Secretaries were invited to make nominations to the Secretary 
of Defense for the offices. In the capacity of a service Secretary, you 
get to know these individuals as they work their way up through the 
ranks and are promoted. You have a special knowledge of their 
capabilities and their strengths. You can advocate that to the 
Secretary of Defense, who then in turn makes the decision with regard 
to who should be selected to head the NRO based on the cumulative 
advice of the several service Secretaries. Those positions are often 
rotated between the Air Force, the Army, and the Navy, and they are 
extremely important assignments.
  With all due respect to the NID, he has so much to be done that he 
cannot possibly have the knowledge about the achievements of all of the 
various individuals to make a recommendation. He can, of course, come 
in after study and concur or not. But you are holding the Secretary of 
Defense saying you have all the responsibility with regard to this 
agency. In many respects personnelwise, you are reducing the Secretary 
of Defense to a payroll clerk when you do not allow him to make the 
selections of the people he thinks are best qualified. In the case of 
the NRO, he serves as an under secretary of the Air Force with duties 
related to the NRO and duties related to the entire space program in 
the Department of the Air Force. The Secretary of Defense should make 
the appointment of the people who serve his Department.
  I cannot accept the Senator's distinction about how you leave the 
State of Department alone, the FBI alone, the Energy Department alone, 
let those Secretaries make their recommendation and decisions with 
regard to personnel, and then in almost a demeaning way say to the 
Secretary of Defense, Oh, no, when it comes to your people, you have 
the right to concur or not.
  Mr. LIEBERMAN. Mr. President, if I may briefly respond to the Senator 
from Virginia, the case cited of the INR, the intelligence division at 
the State Department, is an interesting one. They came to a different 
opinion than some other constituent agencies of the American 
intelligence community with regard to, for instance, prewar WMD in 
Iraq. But that was a matter of analysis primarily, not collection. They 
looked at the data. Incidentally, some of the data they looked at were 
data they got from these three agencies. These are the three largest 
collection agencies and they are unique in that they serve the whole 
community.

  There is certainly no intention to diminish the Secretary of Defense. 
The Secretary of Defense has a very powerful position and Senator 
Collins and I want to have the Secretary remain that powerful. We had 
very interesting testimony before our committee by a witness who said--
he had been in the Department of Defense and stepped out to work with a 
think tank where he watches all of this--over the years when there were 
conflicts or disagreements between the Secretary of Defense and the 
Director of Central Intelligence, the Secretary of Defense always wins 
because the Secretary of Defense has so much muscle. And that is the 
reality.
  We are not trying to undercut the authority of the Secretary of 
Defense, and we are certainly not trying to alter the chain of command, 
but we are trying to give a little more authority to the national 
intelligence director so that director can really be in charge. One 
small piece of that is saying, Mr. Intelligence Director, you can, in 
consultation with the Secretary of Defense, make the suggestion for who 
ought to head these three agencies which, unlike any other intelligence 
agency within our Government, serve the entire community.

  The Secretary of Defense, as I said before, is an important customer 
of what these three agencies produce--``user'' may be a better term 
than customer.
  It was of great interest when General Hayden, head of the NSA, said 
he spends more time on the phone with the Director of the CIA than with 
the Secretary of Defense. We want to reflect that in this small 
movement of authority.
  Mr. WARNER. Mr. President, it is obvious the managers at the moment 
are somewhat entrenched in their views. I hope we will have an 
opportunity to appeal to the broader and hopefully more open minds of 
the collective Senate as a whole.
  Could the managers advise those Members who have deferred other 
plans, with the importance of being here today to advocate amendments, 
what will be the procedure when this will be laid aside? There will be 
a record when we return Monday. I presume it would be scheduled in some 
order, at the discretion of the managers, together with the leaders of 
the Senate, as to the vote.
  Do I get 2 minutes, 3 minutes, 4 minutes at the time the amendment is 
brought up? I would like to weigh in a little bit now given that I have 
not thus far persuaded my two distinguished colleagues, both members of

[[Page S10211]]

the Armed Services Committee, who are interfering, in my judgment, with 
the direct chain of command between the President and his combatant 
commanders and principal civilian appointees.
  Ms. COLLINS. Mr. President, to respond to the question raised by the 
Senator from Virginia, it is the leader's intention to convene perhaps 
at 10 or 11 o'clock on Monday morning, allow for some further debate, 
and then stack votes beginning at 3 p.m. There will be 2 minutes 
equally divided before each vote, but knowing of the Senator's desire 
to have further debate on Monday, we are going to convene early enough 
on Monday to allow that to occur. We expect a great many stacked votes 
to begin at approximately 3 o'clock Monday. Thus, we are not going to 
have time for extensive debate between those votes.
  Mr. WARNER. I thank my distinguished colleague. I shall certainly be 
here. As a matter of fact, I will preside for a period of time. Maybe 
when I get in the chair and have the gavel, I can do something about 
this amendment.
  In any event, I am appreciative of the courtesies that have been 
extended to Members of the Senate deliberating on this bill. This is an 
important matter.
  Hopefully, in the interim, I can persuade not only the Senate but the 
White House to indicate its position on this amendment.
  I thank the Chair. I thank my distinguished colleagues. I will be 
available for further amendments as the managers decide to have them 
scheduled during the course of the day.
  This amendment will now be laid aside?
  The PRESIDING OFFICER. Yes.
  Ms. COLLINS. I ask that the amendment be laid aside. The Senator from 
Vermont is next. I wonder if the Senator could withhold for a couple of 
moments to allow consultation among the three of us before he sends up 
his amendment.
  Mr. LEAHY. Of course. The distinguished chairman and ranking Member 
have always been very courteous. I know, having managed a lot of bills, 
how it is. It is a reasonable request.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Chambliss). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.

  Mr. LEAHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 3945

  Mr. LEAHY. Mr. President, I ask it be in order for me to send to the 
desk an amendment on behalf of myself and Mr. Grassley.
  The PRESIDING OFFICER. Without objection, the pending amendment is 
laid aside.
  Mr. LEAHY. I understand there may be a question regarding my 
amendment. While this is being worked on by counsel, let me proceed to 
discuss it and we can go back to the amendment if there is no 
objection.
  Mr. President, three years after thousands of Americans were killed 
in the worst terrorist attack on U.S. soil, there have been some 
troubling doubts about the effectiveness of a major investigative tool 
in our antiterrorism arsenal.
  On Monday, the Office of Inspector General of the Department of 
Justice released an unclassified version of its audit of the FBI's 
Foreign Language Program and the Translation of Counterterrorism and 
Counterintelligence Foreign Language Material. The results were 
unsettling. They deserve our immediate attention and action.
  The report shows that despite concerns expressed for years by those 
in Congress and by former FBI contractors, among others, and despite an 
influx of tens of millions of dollars Congress has appropriated in a 
bipartisan effort to hire new linguists, the FBI foreign language 
translation unit is saddled with problems across the board, including 
growing backlogs, systemic difficulties, security problems, too few 
qualified staff, and an astounding lack of organization. It is almost 
as though the Department of Justice does not take this question of 
translation seriously.
  The question the Department of Justice must be asked is: What is the 
use of taping thousands of hours of conversations of intelligence 
targets in foreign languages if, after we have taped it all, we cannot 
translate it promptly, securely, accurately, and efficiently? The 
translation mess at the Department of Justice is a chronic problem that 
has obvious and severe implications for our national security. We all 
want America to be secure, Republicans and Democrats alike. But the 
administration has shirked its responsibility to resolve these 
problems. It has dodged its own accountability to the public and to 
Congress for this enormous failure. I believe the administration owes 
Congress and the American public an explanation as to why it has 
repeatedly failed to take the necessary steps to fix these serious 
intelligence failings. We need to know, once and for all--and sooner 
rather than later--what steps will be taken to get this job done.

  Now, to expedite this process, I will offer the Translator Reports 
Act of 2004. I am proud to be joined in this effort by Senator 
Grassley, my friend from Iowa. He has been ever-vigilant on FBI 
oversight issues, whether it has been a Democratic administration or a 
Republican administration. Our act clarifies and expands upon an 
important reporting requirement currently in law that has yet to be 
implemented by the Department of Justice.
  The Attorney General is required by law--by law--to report to the 
Senate and House Judiciary Committees about the number of translators 
employed by the FBI; the legal and practical impediments to using 
translators employed by other Federal, State, or local agencies, on a 
full, part-time, or shared basis; and the needs of the FBI for specific 
translation services in certain languages and recommendations for 
meeting those needs. We saw this as such a high priority that we 
included this requirement in law. The President signed it into law.
  You would think if anybody is going to follow the law, it would be 
the Attorney General. To date, he has not. He has not made the report 
required by this law. Now, maybe he needs another deadline. We thought 
it was pretty clear already. The President thought it was pretty clear. 
Republicans and Democrats thought it was pretty clear. But this 
amendment provides an ironclad deadline.
  I believe we have to prod the Department of Justice to get this 
information on a timely basis. It is somewhat like pulling teeth. This 
amendment is the extraction tool for the teeth of the foreign 
translation program. It fills the gap in current law by legally 
requiring the Attorney General to report ``not later than 30 days after 
the date of enactment'' and ``annually thereafter.''
  The bill also expands that reporting requirement in several critical 
ways and in direct response to the Office of Inspector General's Audit. 
This is in keeping with the 9/11 Commission's directive that Congress 
exercise greater oversight over the counterintelligence and 
counterterrorism needs of the executive branch. In its report, the 9/11 
Commission noted that, ``Even as the FBI has increased its language 
services cadre, the demand for translation services has also greatly 
increased. Thus, the FBI must not only continue to bring on board more 
linguists, it must also continue to take advantage of technology and 
best practices to prioritize its workflow, enhance its capabilities and 
ensure compliance with its quality control program.''
  Well, I could not agree more.
  The FBI in the past has drawn a distinction between contract 
linguists and full-time employees when discussing hiring issues. But 
for the purpose of getting the job done, this is a distinction without 
a difference. We in Congress want to know the status of hiring overall 
because it is the entire picture that we are concerned with. The 
amendment makes clear that the Department of Justice must report on 
linguists employed by and contracted for by the FBI.
  Our amendment adds further reporting requirements that will be 
crucial to understanding whether or not the FBI is capable of fixing, 
and has fixed, the problems outlined by the Inspector General.
  If enacted into law, the Attorney General will have to provide 
Congress with current information regarding: (1) the status of any 
automated statistical reporting system so that we can ensure

[[Page S10212]]

the FBI is monitoring workflow properly; (2) the storage capabilities 
of the digital collection system or systems utilized so that important 
data is not lost for technological reasons; (3) a description of the 
FBI's establishment and compliance with audio retention policies that 
satisfy the investigative and intelligence goals of the FBI; (4) a 
description of the implementation of quality control procedures and 
mechanisms for monitoring compliance with quality control procedures; 
and (5) the current counterterrorism and counterintelligence audio 
backlog and recommendations for alleviating any such backlog.

  These reporting requirements are in addition to what is currently 
required: hiring numbers and recommendations regarding the FBI's future 
needs and the viability of using translators from other agencies and 
sources. This more detailed information will give Congress a better 
view and ultimately greater insight into how the FBI is handling this 
critical investigative tool. With FISA wiretaps at an annual figure of 
more than 1,700, the FBI has a lot of catching up to do. And so does 
Congress in its oversight of this translation program. With this 
amendment, the information we will need to most effectively employ this 
important investigative tool will be at our fingertips.
  We know our intelligence services have the ability to pick up 
conversations throughout the world. But you have to translate what you 
pick up. On September 10, according to press reports, the 
Administration picked up a very clear warning that we were going to be 
hit on September 11. They did not translate the warning until sometime 
after September 11. This is like being warned that a bomb is going off 
in 5 minutes, and responding that we will translate and look at that 
warning in 5 months.
  For my security and the security of all of us, I want our law 
enforcement and intelligence services to know immediately. As a former 
prosecutor, I know that if you are using a wiretap or an intercept, it 
is valuable if you have the information immediately, especially if they 
are talking about a terrible act or a crime that is going to take place 
very soon. It does you very little good to finally look at it long 
after the fact. The only reason we do these intercepts, the only reason 
we do these wiretaps, the only reason we do this electronic information 
gathering is so we will know where we are.
  Mr. President, I understand my amendment is at the desk and I request 
it be reported.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The assistant legislative clerk read as follows:

       The Senator from Vermont [Mr. Leahy], for himself and Mr. 
     Grassley, proposes an amendment numbered 3945.

  Mr. LEAHY. Mr. 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 require Congressional oversight of translators employed 
       and contracted for by the Federal Bureau of Investigation)

       At the appropriate place insert the following:

     SECTION 1. CONGRESSIONAL OVERSIGHT OF FBI USE OF TRANSLATORS.

       Not later than 30 days after the date of enactment of this 
     Act, and annually thereafter, the Attorney General of the 
     United States shall submit a report to the Committee on the 
     Judiciary of the Senate and the Committee on the Judiciary of 
     the House of Representatives, that contains, with respect to 
     each preceding 12-month period--
       (1) the number of translators employed, or contracted for, 
     by the Federal Bureau of Investigation or other components of 
     the Department of Justice;
       (2) any legal or practical impediments to using translators 
     employed by the Federal, State, or local agencies on a full-
     time, part-time, or shared basis;
       (3) the needs of the Federal Bureau of Investigation for 
     the specific translation services in certain languages, and 
     recommendations for meeting those needs;
       (4) the status of any automated statistical reporting 
     system, including implementation and future viability;
       (5) the storage capabilities of the digital collection 
     system or systems utilized;
       (6) a description of the establishment and compliance with 
     audio retention policies that satisfy the investigative and 
     intelligence goals of the Federal Bureau of Investigation; 
     and
       (7) a description of the implementation of quality control 
     procedures and mechanisms for monitoring compliance with 
     quality control procedures.

  Mr. LEAHY. Mr. President, I know the distinguished chairman of the 
committee and the distinguished ranking member of the committee want to 
look at this amendment. Because I am suppose to be at several places, I 
am not shackled to my desk on the floor as they are. I did want to get 
the amendment offered. I thank them for their courtesy in giving me 
time to do so. I urge the Senate to support this important oversight 
and reporting amendment.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Mr. President, I appreciate the Senator from Vermont 
bringing his amendment forward. We are going to discuss it further with 
him.
  Mr. President, I ask unanimous consent that the amendment be laid 
aside temporarily and that the Senator from Rhode Island be recognized 
to offer an amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
pending amendment is laid aside.
  The Senator from Rhode Island.


                           Amendment No. 3908

  (Purpose: To authorize the Secretary of Homeland Security to award 
 grants to public transportation agencies to improve security, and for 
                            other purposes)

  Mr. REED. Mr. President, I call up amendment No. 3908.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The assistant legislative clerk read as follows:

       The Senator from Rhode Island [Mr. Reed], for himself, Mr. 
     Sarbanes, Mr. Schumer, Mrs. Boxer, and Mr. Corzine, proposes 
     an amendment numbered 3908.

  Mr. REED. Mr. 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 printed in the Record of Thursday, September 30, 
2004, under ``Text of Amendments.'')
  Mr. REED. Mr. President, I offer this amendment along with Senators 
Sarbanes, Schumer, Boxer, and Corzine.
  This amendment is, in essence, the text of S. 2453, which the Banking 
Committee reported out unanimously on May 6 and placed on the calendar 
on May 20.
  Since that time, we have sought to pass the bill along with the 
Commerce Committee's similar rail security bill by unanimous consent, 
but an objection has, to date, blocked the Senate from passing this 
bipartisan transit security legislation. Therefore, I rise with my 
colleagues today to continue this effort to improve the security and 
safety of our transit systems in the United States which on a daily 
basis transport 14 million Americans.
  Our amendment is straightforward and meets the 9/11 Commission's 
recommendation on page 391 for improved transportation security, which 
states in part:

       The U.S. government should identify and evaluate the 
     transportation assets that need to be protected, set risk-
     based priorities for defending them, select the most 
     practical and cost-effective ways of doing so, and then 
     develop a plan, budget, and funding to implement the effort. 
     The plan should assign roles and missions to the relevant 
     authorities (federal, state, regional, and local) and to 
     private stakeholders. In measuring effectiveness, perfection 
     is unattainable. But terrorists should perceive that 
     potential targets are defended. They may be deterred by a 
     significant chance of failure.

  In essence, the 9/11 Commission has called for three steps: first, 
clear responsibility; second, risk-based policies; and third, resources 
to meet these threats. Our amendment corresponds to these 
recommendations by the Commission.
  First, our amendment would require the Department of Homeland 
Security to clearly accept responsibility for transit security by 
signing a memorandum of understanding with the Federal Transit 
Administration. Unfortunately, this is something that the Department of 
Homeland Security has failed to do, even after numerous Senate 
inquiries and the passage of a Senate amendment requiring it to do so.
  Second, our amendment embodies the kind of risk-based priorities that 
the Commission recommended by requiring the Department of Homeland 
Security to review the security assessments conducted by the Federal 
Transit Administration. DHS would then use these risk-based assessments 
as the basis for

[[Page S10213]]

allocating any funds. The Department would also have to annually update 
these assessments.

  Third, our amendment would authorize real resources over 3 years that 
are still a fraction of our investment in aviation security for a wide 
variety of known capital and operating security needs, including 
surveillance technologies, tunnel protection, chemical, biological, 
radiological, and explosive detection systems, perimeter protection, 
training, and other security improvements approved by the Department.
  In sum, our amendment is not overly prescriptive and relies on the 
wisdom of the Nation's intelligence systems and the Department of 
Homeland Security to identify the threats, develop solid plans, and 
invest in those initiatives which will do the most to make our transit 
systems more secure.
  Fourteen million Americans each day rely on transit systems. We only 
have to recall the horrible and tragic incident in Spain a few months 
ago to understand that these individuals are the potential targets for 
terrorist acts. It is incumbent upon us to take these steps today to 
protect the transit systems for the people of America as we go forward.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Maryland.
  Mr. SARBANES. Mr. President, I commend my colleague, the very able 
Senator from Rhode Island, Mr. Reed, for offering this amendment. I am 
pleased to join with him as a cosponsor.
  Senator Reed has played a leading role in the Congress on the issue 
of transit security. In fact, in the last Congress he held a series of 
hearings on transit issues, and a good deal of the focus of those 
hearings was on the transit security challenges we face.
  This is a vitally important amendment needed to better protect the 
American people. I observe to my colleagues that throughout the world, 
public transportation systems have been a target of terrorist attacks. 
A terrorist attack against a passenger train in Madrid, attacks against 
transit systems in both Moscow and South Korea demonstrate that transit 
and rail systems are a target of terrorists worldwide.
  Despite the significant threat which obviously exists to transit and 
rail systems, security funding has been grossly inadequate. As a 
result, our Nation's transit and rail systems have been unable to 
implement necessary security improvements, in many instances even those 
that have been identified as necessary by the Department of Homeland 
Security.
  To take one example, Washington Metro's greatest security need at the 
moment is a backup operations control center. This need was identified 
by the Federal Transit Administration in its initial security 
assessment, and then identified again by the Department of Homeland 
Security in its subsequent security assessment. Regrettably, this 
critical need remains unaddressed because of a lack of funding.
  Last March, I, along with Senators Mikulski, Warner, and Allen, wrote 
to Secretary Ridge urging funding for this and other critical needs 
such as chemical detection and decontamination systems, but the money 
is not there and the needs remain.
  In May of this year, the Banking Committee undertook to address these 
issues on a national basis. My colleague from Rhode Island played an 
instrumental role in considering this issue in the committee. The 
committee, on a bipartisan basis, with a unanimous vote, passed the 
Public Transportation Terrorism Prevention Act. Regrettably, we have 
not yet been able to move that legislation forward on the Senate floor. 
This amendment tracks many of the provisions of that legislation. It 
addresses the need for increased transit security by providing for 
grants along the lines of the bill that was reported out of the 
committee.

  I note in that regard that Banking Committee Chairman Shelby took a 
keen interest in this issue and we appreciate his recognition of the 
need to increase transit security and his support for the legislation 
that was brought from the committee.
  I might note that the House Transportation and Infrastructure 
Committee recently took action with respect to transit security that is 
similar to what is proposed in this amendment.
  In the last Congress, Senator Reed and I requested the GAO to conduct 
a study of the security needs of transit systems. In its report the GAO 
found that, in analyzing the needs of eight transit systems, that they 
required $711 million for security purposes just for those eight 
systems. There are 6,000 public transit agencies throughout our Nation. 
The need is very great. The challenge is very real.
  We know that transit and rail systems are serious potential targets 
for terrorist attacks. We obviously know the vital role that these 
systems play in our Nation's economic and security infrastructure. We 
must address the vulnerabilities that have already been identified in 
security assessments which have already been conducted.
  The funding to do this is just not there. We need to harden tunnels, 
to provide detection teams, to train frontline employees, to update 
infrastructure so that a transit system can continue to function even 
if attacked. The list of security needs goes on and on and on.
  I strongly commend to my colleagues the amendment that my able 
colleague from Rhode Island has put forward. I am pleased to join with 
him as a cosponsor. I urge support of the amendment. This is a very 
real need, with very important implications for our national security 
and for the functioning of our economy. I urge my colleagues to support 
the amendment. I thank the Senator from Rhode Island for his 
leadership.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Mr. President, it is my understanding, based on the 
tentative schedule that we worked out last night, that Senator Levin is 
to be recognized next to offer amendments, followed by Senator Roberts, 
followed by Senator Stevens, followed by Senator Kyl. I see the Senator 
from North Dakota is here to make a comment. My concern is how that 
fits in with the amendment schedule worked out last night.
  Mr. CONRAD. I would be happy to yield to Senators for their 
amendments.
  Ms. COLLINS. I appreciate that.
  Mr. President, the pending amendment raises several questions. It has 
very worthy goals. We have previously adopted a McCain-Lieberman 
amendment dealing with some of the same issues. We need to have a 
discussion with the sponsors of the amendment, Senators Reed and 
Sarbanes and others, to see how their amendment interacts with the 
legislation previously adopted, the McCain-Lieberman amendment.
  I ask unanimous consent that the pending amendment be set aside.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Connecticut.
  Mr. LIEBERMAN. Mr. President, if I may speak on the amendment 
briefly, I thank the Senators from Rhode Island and Maryland for coming 
forward with the amendment. It certainly speaks directly to a critical 
national homeland security need. I want to take a little time to look 
at it and see how it fits into the overall picture with regard to the 
bill. I know this was reported out unanimously from the relevant 
committee. It has been held up perhaps only by one Senator as a result 
of an objection.
  I don't want to have the underlying bill, which is so urgently 
needed, get caught in that kind of situation. But I would like to work 
with the sponsors of the amendment and perhaps with whoever is 
objecting to see if we can't find a way to put these together. This 
speaks to a real national need. It is consistent with other amendments 
that have been adopted on the underlying bill or were part of the bill 
initially and, of course, consistent with vulnerabilities that the 9/11 
Commission spoke to.
  I thank the sponsors and I look forward to working with them to see 
if we can work it out.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from North Dakota is recognized.


                       Justifying the War in Iraq

  Mr. CONRAD. Mr. President, in watching the Presidential debate last 
night, again, I think President Bush confused who attacked the United

[[Page S10214]]

States on September 11. President Bush, last night, in justifying the 
war with Iraq, said they attacked us. Senator Kerry was quick to point 
out that Iraq did not attack us. It was al-Qaida, led by Osama bin 
Laden, that attacked us. This basic fact is absolutely essential to 
understanding what occurred and where we are headed.
  I think it is helpful, perhaps, to review the record. Here is the 
report of the 9/11 Commission:

       The intelligence reports describe friendly contacts and 
     indicate some common themes in both side's hatred of the 
     United States [referring to Iraq and al-Qaida], but to date 
     we have seen no evidence that these or the earlier contacts 
     ever developed into a collaborative operational relationship. 
     Nor have we seen evidence indicating that Iraq cooperated 
     with al-Qaida in developing or carrying out any attacks 
     against the United States.

  Mr. President, it is not just the 9/11 Commission that tells us these 
basic relationships; it is also our own Intelligence Committee. Their 
conclusions in their July 7 report included conclusion 96:

       The Central Intelligence Agency's assessment that to date 
     there was no evidence providing Iraqi complicity or 
     assistance in an al-Qaida attack was reasonable and 
     objective. No additional information has emerged to suggest 
     otherwise.

  Conclusion 93:

       The Central Intelligence Agency reasonably assessed that 
     there were likely several instances of contacts between Iraq 
     and al-Qaida throughout the 1990s, but that these contacts 
     did not add up to an established, formal relationship.

  Mr. President, one month after the dreadful September 11 attack, the 
State Department had on their Web site a list of countries where al-
Qaida has operated. This is a month after the September 11 attack. If 
you look down this list--Bahrain, Bangladesh, France, Germany, Iran, 
and others--there is no mention of Iraq.
  The Secretary of State has said as recently as September 13, just 
last month, appearing on NBC's ``Meet the Press,'' that he had seen 
nothing that makes a direct connection between Saddam Hussein and his 
awful regime and what happened on 9/11.
  The President himself has previously said, on September 18 of last 
year, that he saw no evidence of Hussein being tied to 9/11. Yet over 
and over, the Vice President and the President have left an impression 
with the American people that somehow Iraq was behind the attacks of 
September 11. It was not. Al-Qaida, led by Osama bin Laden, was behind 
the attacks of September 11. Those are the folks we need to hold to 
account. They are the ones we need to bring to justice. That is not for 
a moment to say that Saddam Hussein didn't run a dreadful regime. He 
did. I think the world is better off without Saddam Hussein in power. 
The question is, What were the priorities of the United States in 
responding to those horrific attacks on our country?
  My belief at the time we were preparing to go to war with Iraq was 
that it was a diversion from our attention in going after al-Qaida, led 
by Osama bin Laden. My own strong belief at the time was that ought to 
have been our top priority and focus.
  I graduated from an American Air Force base in Tripoli, Libya, in 
North Africa. I lived in the Arab world. I learned something about the 
Arab world in living there. It is very clear to me that we have to be 
very focused in going after those who attacked us. If we are going to 
be successful against the terrorists, we have to go after the people 
who attacked us. We have to go after those who are planning to attack 
us again. We cannot go off and go after every bad regime in the world. 
That will swamp our ability to respond.

  There has been some suggestion that Saddam Hussein was going to arm 
terrorists. Go back to what the intelligence told us, November 16, 
2003:

       The CIA's search for weapons of mass destruction in Iraq 
     has found no evidence that former President Saddam Hussein 
     tried to transfer chemical or biological technology or 
     weapons to terrorists, according to a military intelligence 
     expert.

  Mr. President, what happened was that our focus on getting those who 
attacked us was diverted by launching the attack on Iraq. This is from 
USA Today, March 29, this year:

       In 2002, troops from the 5th special forces group, who 
     specialize in the Middle East, were pulled out of the hunt 
     for Osama bin Laden in Afghanistan to prepare for their next 
     assignment: Iraq. Their replacements were troops with 
     expertise in Spanish cultures.

  Mr. President, what sense does this make? We took people who were 
experts in the culture of those who attacked us and we took them out of 
the hunt for Osama bin Laden and shifted them over to Iraq in the hunt 
for Saddam Hussein. And we replaced them with experts in Spanish 
culture. No wonder, over a thousand days after the attacks of September 
11, we still have not held to account Osama bin Laden, his top 
assistant, and the rest of their criminal group.
  This story says:

       The CIA, meanwhile, was stretched badly in its capacity to 
     collect, translate, and analyze information coming from 
     Afghanistan. When the White House raised a new priority, it 
     took specialists away from the Afghanistan effort to ensure 
     Iraq was covered.

  I believe history is going to prove that was a serious mistake. 
Again, Iraq did not attack us; al-Qaida, led by Osama bin Laden, 
attacked us. They are the ones we need to hunt down as our top 
priority.
  Last year, in The Philadelphia Inquirer, this story ran, saying:

       Some senior officials concede that the Iraq war also 
     diverted resources from two problems that could prove to be 
     even more pressing than Iraq was: rooting out the remnants of 
     Osama bin Laden's al-Qaida terrorism network and confronting 
     Iran. A senior intelligence official, who spoke on condition 
     of anonymity, said the CIA reassigned to Iraq more than half 
     the operatives tracking al-Qaida fugitives in Afghanistan and 
     Pakistan. As a result, he said, U.S. forces were not able to 
     pursue bin Laden and other al-Qaida leaders as aggressively.

  This is a case of misplaced priorities by this administration. Our 
top priority should have been nailing Osama bin Laden and al-Qaida. 
Instead, this President and this administration diverted resources from 
that hunt and shifted them to Iraq. Again, as dreadful a regime as Iraq 
had, they were not the ones who attacked us. Al-Qaida did.
  This goes on to say:

       Al-Qaida's continuing threat was shown when the Department 
     of Homeland Security raised its terrorism alert level 
     Tuesday, after bombings in Saudi Arabia and Morocco.

  This is what the President said right after the attacks of September 
11, on September 15:

       There is no question about it, this act will not stand; we 
     will find those who did it. We will smoke them out of their 
     holes; we will get them running and we will bring them to 
     justice.

  I agree, absolutely, with the President's statement. He had the 
priority right at the time. Then something happened. I don't know why. 
I have never been able to decipher why the President's focus shifted. 
Here is what he said on March 13, 2002:

       You know, I just don't spend that much time on him [Osama 
     bin Laden] . . . I don't know where he is . . . I truly am 
     not that concerned about him.

  How can he not be that concerned about the man who was the architect 
of these attacks on the United States? How can that be? How can our 
President not be that concerned about Osama bin Laden, who is out there 
plotting, even now, to launch even more attacks on the United States?
  The former Secretary of the Navy in the Reagan administration, James 
Webb, made these comments this year in a USAToday op-ed piece:

       Bush arguably has committed the greatest strategic blunder 
     in modern memory. To put it bluntly, he attacked the wrong 
     target. . . . Our military is being forced to trade away its 
     maneuverability in the wider war against terrorism while 
     being placed on the defensive in a single country that never 
     will fully accept its presence.

  That is the conclusion of the Secretary of the Navy in the Reagan 
administration, that this President attacked the wrong target. Instead 
of focusing on al-Qaida, he launched a preemptive attack on Iraq.
  Mr. Webb, in that same opinion piece, said this:

       There is no historical precedent for taking such action 
     when our country was not being directly threatened. The 
     reckless course that Bush and his advisers have set will 
     affect the economic and military energy of our Nation for 
     decades.

  This is the man who ought to be our top priority. This is the man who 
organized the September 11 attacks against the United States. This is 
the man who is plotting even now to attack the United States again. 
This is Osama bin Laden. It is not Saddam Hussein. We cannot get 
confused about who the primary threat is to the United States of 
America. The top threat, the top priority for our military and 
intelligence

[[Page S10215]]

services has to be to bring Osama bin Laden and al-Qaida to justice. 
They are the ones who attacked us. They are the ones plotting to attack 
us again.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, I certainly am happy to be here today and 
that I was--I do not know if happy is the right word--able to hear the 
Senator from North Dakota, who did such a good job. Not only is he 
articulate in his views, but he always has facts and figures to back 
them up.
  We have come to know Senator Conrad as someone in the Senate who 
knows the numbers better than anyone else. In addition to that, he 
obviously is aware of other issues going on, such as his presentation 
today, which is a presentation I heard developed previously. I want the 
Senator to know how much I appreciate his very clear and concise 
statement. I appreciate it.


                           Amendment No. 3849

(Purpose: To protect human health and the environment from the release 
             of hazardous substances by acts of terrorism)

  Mr. REID. Mr. President, on behalf of Senator Corzine, I ask that the 
pending amendment be set aside, and I call up the Corzine amendment No. 
3849.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The assistant legislative clerk read as follows:

       The Senator from Nevada [Mr. Reid], for Mr. Corzine, for 
     himself and Mr. Lautenberg, proposes an amendment numbered 
     3849.

  Mr. REID. Mr. President, I ask unanimous consent that the reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The amendment is printed in the Record of Thursday, September 30, 
2004, under ``Text of Amendments.'')


                     Amendments Nos. 3782 and 3905

  Mr. REID. Mr. President, on behalf of Senator Lautenberg, I call up 
amendment Nos. 3782 and 3905 to be considered at this time.
  The PRESIDING OFFICER. The clerk will report the amendments.
  The assistant legislative clerk read as follows:

       The Senator from Nevada [Mr. Reid], for Mr. Lautenberg, 
     proposes amendments numbered 3782 and 3905, en bloc.

  Mr. REID. Mr. President, I ask unanimous consent that the reading of 
the amendments be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment (No. 3782) is as follows:

    (Purpose: To require that any Federal funds appropriated to the 
   Department of Homeland Security for grants or other assistance be 
allocated based strictly on an assessment of risks and vulnerabilities)

       At the appropriate place, insert the following:

     SEC. __. ALLOCATION OF FEDERAL HOMELAND SECURITY ASSISTANCE.

       Any Federal funds appropriated to the Department of 
     Homeland Security for grants or other assistance shall be 
     allocated based strictly on an assessment of risks and 
     vulnerabilities.

  (The amendment (No. 3905) is printed in the Record of Thursday, 
September 30, 2004, under ``Text of Amendments.'')


                           Amendment No. 3821

  Mr. REID. Mr. President, I ask that the pending amendments be set 
aside, and I call to the Senate's attention amendment No. 3821 offered 
on behalf of Senator Harkin.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The assistant legislative clerk read as follows:

       The Senator from Nevada [Mr. Reid], for Mr. Harkin, 
     proposes an amendment numbered 3821.

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

 (Purpose: To modify the functions of the Privacy and Civil Liberties 
                Oversight Board, and for other purposes)

       On page 158, line 9, strike the period and insert ``, 
     including information regarding privacy and civil liberties 
     violations, which are made by departments, agencies, or 
     elements of the executive branch, of regulations, policies, 
     or guidelines concerning information sharing and information 
     collection; and''.
       On page 158, between lines 9 and 10 insert the following:
       (C) the minority views on any findings, conclusions, and 
     recommendations of the Board resulting from its advice and 
     oversight functions under subsection (d).
       On page 160, line 6, insert ``and the National Intelligence 
     Director and committees of Congress described under 
     subsection (e)(1)(B)(i)(I),'' after ``concerned''.

  Mr. REID. Mr. President, on behalf of Senator Harkin, I recognize his 
amendment would do three things. It first requires the privacy and 
civil liberties board established by this bill to include as part of 
its findings any privacy or civil liberties violations made by the 
intelligence community or other elements of the executive branch in its 
semiannual reports to Congress.
  Second, it allows minority conclusions or recommendations to be sent 
to Congress.
  Finally, the amendment would require the board to report an agency's 
failure to cooperate with its requests for information or assistance to 
the national intelligence director and appropriate committees of 
Congress.
  This amendment strengthens the credibility of the board and improves 
the board's ability to get the information it needs in the conduct of 
its duties.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Allard). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. LIEBERMAN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LIEBERMAN. Mr. President, I do want to indicate that we have 
several other Senators who told us they would be coming over to the 
floor today to offer amendments: Senator Levin, Senator Roberts, 
Senator Kyl, and Senator Stevens. I urge them to come over as soon as 
is possible. We are open for business, and there is time available. The 
sooner the debates occur, the sooner we will be able to set these 
matters for votes on Monday.


                           Amendment No. 3807

  Mr. LIEBERMAN. In the meantime, Mr. President, I would like to take 
this opportunity to say a word about amendment No. 3807 which Senator 
McCain and I offered yesterday. This is another of the elements of the 
9/11 Commission report that was part of legislation Senator McCain and 
I introduced the day after Labor Day as a way to guarantee that all 
elements of the 9/11 report would be before the Senate.
  This one has to do with effective screening to keep terrorists out of 
America and away from vital infrastructure in America. It is a comment 
on the age in which we live, something we have taken for granted in 
America but has been a great asset of ours, and that is the size of our 
country, the size of our borders, and the welcome mat we generally have 
put out for people visiting our country.
  That openness has been exploited--it certainly was prior to the 
attacks of September 11--exploited by those who, as someone else has 
said, hate us more than they love their own lives. They come in here 
and are prepared to blow themselves up to kill Americans. That demands 
that we not try to put a wall around America--we can never do that--but 
that we be aggressive and smart about raising our guard and requiring 
some standards of personal identification from people coming into 
America, something we have not required before.
  We can do that without compromising unduly, unnecessarily, the 
openness of our country and the welcome we put out to both those who 
want to emigrate here and those who just plain want to visit.
  The amendment Senator McCain and I offered has several parts to it. 
One is to simply help us obtain better information about the way in 
which terrorists move around, the way in which they intend to exploit 
our transportation systems, our existing laws, to do damage to us and 
our people. We want to better screen for terrorists in foreign 
countries long before they can reach our borders. We want to better 
train border personnel. We want to use the most sophisticated computer 
imaging equipment to detect fraudulent travel documents. We want to 
better screen at the borders and at points of access, as I say, to 
critical infrastructure, transportation particularly, and we want to do 
more to protect against

[[Page S10216]]

identity fraud and identity theft because so often these terrorists 
will assume new identities as a way to gain access to the country and 
access to places where they can inflict damage on us.
  What it means to defend America has changed. In a different age, the 
age of serious conflict, it meant having the strongest military we 
could, having the most sophisticated weapons we could, to deter enemy 
attack, to be prepared to go to the battlefield, to deploy our forces 
to meet the enemy and defeat the enemy. Today, it involves homeland 
security in a way it never has before in our history, and this 
amendment would enable us to raise our homeland security in the best 
way possible.
  In its analysis of the events leading up to September 11, 2001, the 
9/11 Commission concluded that the terrorists are as reliant on travel 
documents as they ultimately are on weapons. To succeed, they have to 
travel clandestinely to meet, train, plan, case targets, look at 
targets, and gain access to sites they want to attack. They rely on 
networks of people to facilitate their travel, people they place within 
this country. Commonly, their travel documents have been tampered with.
  The 9/11 Commission found that as many as 15 of the 19 9/11 hijackers 
could have been intercepted at the borders. Two of them actually 
entered the United States even though they were known as terrorists by 
at least one agency in the intelligence community of the United States. 
They were on a terrorist watch list. They had been heard at a meeting 
in Kuala Lumpur, kind of a world conference of terrorists, al-Qaida 
largely, where we now believe the attacks of 9/11 were planned. Two of 
them met that standard.
  The point is we have to address the multiple opportunities to 
identify and stop the terrorists at every point along their travel 
routes long before they reach our entry points, at our border 
crossings. Once inside the country, we have to find ways to detect 
them.
  The first thing this amendment does is seek to improve our 
intelligence about how terrorists travel. Before 9/11 and even today, 
there is no agency within the Federal Government that has the 
responsibility to consider this question. The Department of Homeland 
Security, therefore, would be directed by the amendment to work with 
the appropriate intelligence and law enforcement agencies in a 
coordinated effort to detect methods and patterns of travel, such as 
the use of specific routes. They would look for those who assist 
terrorists, be they human smugglers or corrupt government officials.

  There is information--and I can describe it because it was mentioned 
in a newspaper; I saw it in the Washington Times earlier this week--
about terrorist elements, al-Qaida working with certain gangs, drug 
groups, who customarily smuggle people across our southern border to 
work with them to smuggle in terrorists. We cannot sit back and let 
that happen.
  This amendment would also expand screening for terrorists long before 
they reach our borders. Federal agencies would be required to develop a 
plan for working with foreign countries to share information on 
terrorists and increase inspection at foreign airports, not just U.S. 
airports. The amendment would increase investment in new technologies 
that can detect false travel documents or those with certain indicators 
that are consistent with terrorist use based on patterns of what we 
know now, and would require both the Department of Homeland Security 
and the State Department to provide training about terrorist travel to 
our front-line border officials so they may better spot forged 
passports or other subtle clues that warrant further scrutiny.
  The best available technology should also be provided to our 
embassies and consulates to detect doctored passports or other forms of 
false identification before the applicant is issued a visa, set up a 
kind of technological wall of identification, most specifically at 
visa-granting points around the world for visas to come to the United 
States. To improve screening at our borders, the 9/11 Commission 
recognized the need for a robust entry and exit system based on the use 
of biometric information. A system of this sort has been under 
development for over a year now, but it needs to be improved and 
accelerated. Our amendment requires the Department of Homeland Security 
to do just that.
  The 9/11 Commission also recommended that we close the gaping hole in 
our border security created by policies allowing easy passage into the 
United States from Canada, Mexico, and the Caribbean; logical enough in 
years past, the natural neighborly tendency of the United States of 
America and Americans generally, but unfortunately it is a policy of 
openness that has been exploited and continues to be exploited by the 
terrorists.
  Our lenient border policies with our neighbors to the north and south 
today constitute a vulnerability. Travelers may now cross these borders 
with no other proof of U.S. citizenship than a verbal statement. 
Individuals claiming to be Canadians enter our country from Canada 
without showing a passport. The policies are evidence of our good 
relations with our neighbors, but in the age of terrorism, that 
friendship must allow for better security for the benefit of both.
  Our amendment would require biometric passports, or an identification 
document just as secure, for everyone crossing into the United States, 
even U.S. citizens and our closest neighbors.
  As we make our borders more secure, we must not forsake the 
principles of openness and freedom that define us as a nation. This 
amendment therefore requires that the Department of Homeland Security 
consolidate and improve a registered travel program that allows 
previously screened and trusted travelers to go quickly across our 
borders so that officials may focus on those who might do us harm.
  Finally, this amendment improves the way we issue key identification 
documents, such as driver's licenses, birth certificates, or personal 
identification cards that may be required before boarding a commercial 
airliner or requested by a law enforcement officer who has grounds to 
be suspicious. It would require minimum security standards for these 
documents and directs the Federal Government to work with the States to 
establish minimum standards for both the security features embedded in 
these documents and for the way in which the documents are issued.
  By the way, a similar program is already in effect for issuing 
commercial driver's licenses. In this regard, I want to thank my 
cosponsor on this amendment, Senator McCain, and the Senator from 
Illinois, Mr. Durbin, for their long work together in the interest of 
establishing not a national identity card but minimum uniform standards 
for personal identification documents in the United States of 
America. We have no intention of usurping the State's role here, their 
capacity to design their own identification documents. The amendment 
specifies that the States retain the full authority to decide who 
qualifies, for example, for a driver's license. We would, in addition, 
provide grants to the States to help them implement these new 
standards.

  For several decades, study after study has told us how easy it is to 
obtain a false identity in this country. As recently as 2002, GAO 
investigators used fraudulent identification made by commercially 
available computer software to obtain driver's licenses in several 
States. Of course, the driver's license is an entry card to a personal 
identification and clearance throughout the system.
  We have known about this problem for decades, but after September 11 
we can't wait any longer--and we are still waiting, since September 11, 
to do anything about it. This bill will push us forward.
  The 9/11 Commission described a variety of loopholes and flaws and 
inadequacies in our current border security personal identity system. 
We must close and repair those; close those loopholes, repair those 
flaws, and put to an end, as best we can, to the terrorists' ability to 
continually reinvent themselves and escape detection. We are up to 
this. We are technologically up to this. The question is whether we 
have the will and the common sense to do so.
  This amendment would help our border and law enforcement officials 
accomplish exactly that. For the sake of the safety of all Americans, I 
ask my colleagues to support this amendment.
  I note with gratitude the presence on the floor of Senator Levin. I 
yield the floor to him at this time for the purpose of offering an 
amendment.

[[Page S10217]]

  The PRESIDING OFFICER. The Senator from Michigan.


                           Amendment No. 3808

  Mr. LEVIN. I thank my good friend from Connecticut. I thank him and 
Senator Collins, again, for their leadership on this very critically 
important bill, one that is surely needed, one that surely must be done 
right. I think we are all determined to do both--to get this bill 
passed, but to get it passed in a form which not just improves our 
intelligence capability but also addresses an issue which I have been 
very much concerned about, which is the shaping of intelligence, the 
exaggeration of intelligence, the distortion of intelligence to support 
particular policy purposes.
  Unhappily, this is not new. We saw the same problem in the Gulf of 
Tonkin resolution, with a distortion of the intelligence that was used 
in order to obtain passage of a resolution which would support the 
expansion of a war in Vietnam.
  We saw the same problem with the Iran-contra matter, where 
intelligence was distorted, shaped, and misused in order to support a 
particular policy position.
  We recently saw, before Iraq, that intelligence was shaped and 
exaggerated and distorted inside the intelligence community, in my 
judgment, after it was received by the policymakers. But even before 
they got it, it was shaped in a way that pointed, in every single 
instance where there is an error in omission, toward a more imminent 
threat, a stronger threat, which thereby supported the position of the 
policymakers.
  I believe in a stronger national intelligence director. We need a 
stronger national intelligence director, but we also want a director 
who is going to exercise that power in a way which will not produce 
intelligence aimed at supporting policy. We need intelligence which is 
aimed at providing facts--unvarnished, objective, independently arrived 
at.
  While supporting a more powerful director, I do not want to support a 
stronger ``yes'' man or simply to support a stronger political arm of 
the White House. Here, when I say that, I am referring to any 
administration, not just this administration. I don't want national 
intelligence directors to be shaping intelligence to support the policy 
of any administration. I want them to be providing information which is 
critically important to policymakers but information which must be 
right, must be accurate, must be objective, must be independently 
arrived at. That is what my goal has been.
  The Senator from Connecticut and the Senator from Maine, who are 
leading this effort, and the Governmental Affairs Committee have 
willingly added a number of provisions which have furthered that goal. 
There are a number of other provisions which I believe should be added 
here on the floor.
  I will be offering one today. I have not personally been able to talk 
to the Senator from Connecticut, but I understand that this first 
amendment of mine may have been cleared now. I want to describe it, in 
any event.
  I ask unanimous consent we set aside the pending amendment and that 
amendment No. 3808 be called up.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will report.
  The legislative clerk read as follows:
  The Senator from Michigan (Mr. Levin) proposes an amendment numbered 
3808.
  Mr. LEVIN. I ask unanimous consent the reading of the amendment be 
dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

   (Purpose: To enhance customer focus on intelligence and to ensure 
                   independent intelligence analyses)

       On page 14, line 2, strike ``community,'' and insert 
     ``community following receipt of intelligence needs and 
     requirements from the consumers of national intelligence,''.
       On page 14, line 8, insert before the semicolon the 
     following: ``, while ensuring that the elements of the 
     intelligence community are able to conduct independent 
     analyses so as to achieve, to the maximum extent practicable, 
     competitive analyses''.

  Mr. LEVIN. Mr. President, the 9/11 Commission, in addition to 
recommending a number of ways in which we could strengthen the national 
intelligence director and that office and produce more coordinated and 
helpful intelligence reports where we have all the information 
necessary to connect the dots and where agencies share information with 
each other, also reminded us on page 414 of their report that:

       In managing the whole community, the National Intelligence 
     Director is still providing a service function. With the 
     partial exception of his or her responsibilities for 
     overseeing the NCTC [the National Counterterrorism Center] 
     the National Intelligence Director should support the 
     consumers of national intelligence--the president and 
     policymaking advisers, such as secretaries of state, defense 
     and homeland security, and the Attorney General.

  The consumers of intelligence are the ones who need to set forth and 
lay out their needs. What do they need by way of collection? What is it 
that they and their agencies--whether it is the State Department or 
Homeland Security Department or the Treasury Department or any other 
department--what kind of satellite capabilities do they need? Where do 
they need the electronics to be used? They need to tell that new 
national intelligence director and the NCTC what it is they need for 
their purposes. They are in the best position to know what are the 
requirements of their agency.
  When all these requirements and needs are put together, we are then 
in a situation where the needs and the requirements of the agencies 
will probably exceed the resources that we have available to meet those 
needs. At that point, you need somebody to arbitrate. You need somebody 
to decide: We have this many needs, but we have only this many 
resources. How do we allocate limited resources--or at least not 
unlimited resources--among a very finite package of needs which 
frequently will exceed the resources we have?
  Who is going to arbitrate that problem? If the State Department says 
we have to have satellite coverage here, and another department says, 
no, we have to have that coverage here, who is going to make that 
decision?
  The answer which this bill provides, and I think rightly so, is that 
the national intelligence director needs to make the decision as to 
what needs are going to be met if we can't meet all of them. But in 
terms of what those needs are, in terms of setting forth the 
requirements of the agency, that has to be something which the agency 
head sets up. There is no way that the NID can decide what the State 
Department needs and what the Defense Department needs and what the 
Treasury Department needs. Those agencies and others have to lay out 
what their requirements are, what their needs are.
  Where the NID comes in is deciding among those needs which ones have 
the top priority. That is why the language in the bill which says that 
the NID will establish the collection and analysis priorities and 
manage collection tasking is, in my judgment, correct.
  I want to make it clear that this amendment is truly intended to 
clarify what I believe is the intent of the sponsors of this bill. 
There are other amendments I will be offering which differ on the 
substance, where there is something I would do differently from the 
sponsors of the bill. But this amendment is intended to clarify what I 
believe not only is but should be and must be the intent of the 
sponsors of this legislation in two ways.
  First, as I have just described, and as the 9/11 Commission 
described, one of the purposes of the national intelligence director is 
to support the consumers of national intelligence. It is the consumers 
who must set forth and lay out their needs. When those needs exceed the 
resources or can't be met for whatever reason, you need an arbiter. 
That is where the NID should come in. Sorry, we can't meet that 
department's need; or, Sorry we can't meet the Treasury Department 
needs because this Homeland Security need has to take priority. You 
need someone who will make that decision and who can make it quickly. 
That, I believe, is the intent.
  No one is in a position to determine the needs of 15 intelligence 
agencies with intelligence operations except those agencies themselves. 
But when you aggregate those needs and they exceed the resources, at 
that point you have to have a national intelligence director who says, 
That has priority and we are tasking that particular satellite; we are 
tasking an agency that has satellite capability to accomplish that 
particular goal and meet that need rather than their other needs which 
cannot be met.

[[Page S10218]]

  That is one part of the amendment.
  The other clarification has to do with the analyses, the so-called 
competitive analyses, which are welcome.
  Everybody who testified in front of us--Secretary Powell, Secretary 
Ridge, the chairman of our committee and the ranking member said this 
at hearings--``We don't want group-think.'' We want independent 
analyses. We want analyses which are competitive. We want to encourage 
that. We don't want to discourage it.
  We want to make it clear in the bill that by giving power to the 
national intelligence director to direct that a competitive analysis be 
achieved, it is not exclusive. We are still urging all of the 
intelligence agencies on their own initiative to provide independently 
arrived at and competitive analysis. We want agencies to tell us those 
aluminum tubes have two purposes, not just one. We want agencies on 
their own initiative--not waiting for a direction by the NID but on 
their own initiative, should they determine that is what they wish to 
do--to tell us, No, those unmanned aerial vehicles do not have a 
purpose of delivering biological weapons; they are more suited for a 
legitimate purpose.
  We want agencies, in other words, to give us those competitive 
analyses which is what is the great antidote to group-think and which 
the chairman, the ranking member, and every single witness, I think, 
who came in front of us said should be encouraged. We have language in 
the bill now which gives the power to the NID to direct a 
competitive analysis, which is fine. He or she ought to have that 
power.

  We want to encourage independent or competitive analysis, and that 
means we don't want any agency to think they have to wait for a 
direction, but they on their own will be encouraged by the NID to 
engage in those kinds of independent analyses.
  I want to assure my dear friend from Connecticut, the ranking member, 
that this particular amendment does have that purpose. I believe it is 
a very commonsense amendment which is complimentary to everything that 
is in the bill.
  I will be offering amendments perhaps on Monday which I think are 
very modest amendments which do, though, make substantive changes to 
the bill. This would carry out what I hope the intention is of the 
sponsors of the bill and which has been stated by the sponsors of the 
bill to be something they deeply believe in.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. LIEBERMAN. Mr. President, I thank my friend from Michigan, the 
distinguished member of our Governmental Affairs Committee, who has 
played a characteristically active, thoughtful, and constructive part 
in the markup of and consideration of the committee through the 
hearings, drafting, and markup of the bill last week, and he continues 
to with this amendment, an amendment somewhat like the one which the 
committee didn't agree on. We have worked together. This whole bill has 
had so many moments where I felt we were legislating, we were reasoning 
together and coming to agreements that will make the system we want 
established better. This is one of them. It is totally consistent with 
the intention Senator Collins and I have had in putting the bill 
together with the intention, in my opinion, of the September 11 
Commission, which is to put somebody in charge of the intelligence 
community where there is not someone in charge now; to not simply 
encourage but to the best of their ability mandate collaboration among 
the component agencies of the intelligence community and make sure that 
one result of collaboration is not so-called group-think; that there is 
independent, competitive analysis going on.
  The amendment of the Senator from Michigan, which is focused, does 
exactly that. It adds language to make clear that the national 
intelligence director shall establish collection and analysis 
requirements for the intelligence community based on input from 
consumers of that national intelligence which reflect their estimate of 
their need and requirements. That is plain common sense.
  The director would also establish collection analysis requirements 
based on the needs of intelligence consumers in order to produce timely 
and relevant products, which is what this is all about.
  Senator Levin's amendment also makes clear the director has the 
responsibility in setting analysis priorities to ensure that the 
elements of the intelligence community are able to conduct, as he has 
said, ``independent analyses so as to achieve to the maximum extent 
practicable competitive analysis.''
  That, too, is not only sensible, but it is in the interest of our 
national security.
  I thank the Senator from Michigan. I certainly support the amendment. 
I believe it has been cleared on both sides. But the Senator from Maine 
is not able to be on the floor right now. As soon as she can, I guess 
she will want to speak on this and we should adopt this by consent.
  I thank the Chair. I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, first let me thank my dear friend from 
Connecticut.
  I ask unanimous consent that Senator Inouye be added as a cosponsor 
to this amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEVIN. Mr. President, I don't know whether the Senator from 
Connecticut at this point wants to have a voice vote or wait for the 
Senator from Maine.
  Mr. LIEBERMAN. Mr. President, the Senator from Maine is on her way to 
the floor to speak about the amendment. I wonder if we might go into a 
quorum call for a moment until she does.
  I note the presence of the very distinguished chairman of the 
Intelligence Committee. He will go next after we agree to this 
amendment.
  In the meantime, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Ms. COLLINS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. COLLINS. Mr. President, I support the amendment proposed by 
Senator Levin. I thank him for offering it and for all of his hard 
work. It reflects not only the Senator's unique experience as a member 
of the Intelligence Committee, the Armed Services Committee, and the 
Governmental Affairs Committee, but also it reflects his usual care and 
attention to detail, which is unparalleled in this body.
  The Levin amendment makes clear that the NID will establish 
collection and analysis requirements for the intelligence community 
following input from the consumers of intelligence. With these 
authorities, the NID will be able to manage collection activities 
across the intelligence community to ensure that defense, homeland 
security, and diplomatic needs are prioritized and satisfied. 
Similarly, a strong NID will ensure robust and competitive analysis of 
intelligence, prioritized to meet our most pressing needs.
  Senator Levin's amendment will clarify that the consumers of national 
intelligence should set the requirements for collection and analysis. 
It would also emphasize that independent and comparative analyses are 
critical to an effective intelligence community.
  I thank the Senator from Michigan for his contribution. I urge 
agreement of the amendment.
  The PRESIDING OFFICER. The question is on agreeing to the Levin 
amendment.
  The amendment (No. 3808) was agreed to.
  Mr. LEVIN. I move to reconsider the vote.
  Ms. COLLINS. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. ROBERTS. Mr. President, I ask unanimous consent that the pending 
amendment be set aside.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 3748

  Mr. ROBERTS. Mr. President, I ask unanimous consent to call up 
amendment No. 3748 entitled ``The Analytic

[[Page S10219]]

Review Unit,'' which probably should be entitled ``The Accountability 
Amendment.''
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Kansas [Mr. Roberts] proposes an amendment 
     numbered 3748.

  Mr. ROBERTS. I ask unanimous consent that reading of the amendment be 
dispensed with.
  The amendment is as follows:

 (Purpose: To clarify the duties and responsibilities of the Ombudsman 
of the National Intelligence Authority and of the Analytic Review Unit 
                  within the Office of the Ombudsman)

       On page 78, line 19, insert ``regular and detailed'' before 
     ``reviews''.
       On page 79, strike lines 1 and 2 and insert the following:

     political considerations, based upon all sources available to 
     the intelligence community, and performed in a manner 
     consistent with sound analytic methods and tradecraft, 
     including reviews for purposes of determining whether or 
     not--
       (A) such product or products state separately, and 
     distinguish between, the intelligence underlying such product 
     or products and the assumptions and judgments of analysts 
     with respect to the intelligence and such product or 
     products;
       (B) such product or products describe the quality and 
     reliability of the intelligence underlying such product or 
     products;
       (C) such product or products present and explain 
     alternative conclusions, if any, with respect to the 
     intelligence underlying such product or products;
       (D) such product or products characterizes the 
     uncertainties, if any, and the confidence in such product or 
     products; and
       (E) the analyst or analysts responsible for such product or 
     products had appropriate access to intelligence information 
     from all sources, regardless of the source of the 
     information, the method of collection of the information, the 
     elements of the intelligence community that collected the 
     information, or the location of such collection.
       On page 80, line 1, insert ``(A)'' after ``(5)''.
       On page 80, line 3, strike ``, upon request,''.
       On page 80, between lines 5 and 6, insert the following:
       (B) The results of the evaluations under paragraph (4) 
     shall also be distributed as appropriate throughout the 
     intelligence community as a method for training intelligence 
     community analysts and promoting the development of sound 
     analytic methods and tradecraft. To ensure the widest 
     possible distribution of the evaluations, the Analytic Review 
     Unit shall, when appropriate, produce evaluations at multiple 
     classification levels.
       (6) Upon completion of the evaluations under paragraph (4), 
     the Ombudsman may make recommendations to the National 
     Intelligence Director, and to the heads of the elements of 
     the intelligence community, for such personnel actions as the 
     Ombudsman considers appropriate in light of the evaluations, 
     including awards, commendations, reprimands, additional 
     training, or disciplinary action.
       On page 80, line 6, strike ``Information.--'' and insert 
     ``Information and Personnel.--(1)''.
       On page 80, line 8, insert ``, the Analytic Review Unit, 
     and other staff of the Office of the Ombudsman of the 
     National Intelligence Authority'' after ``Authority''.
       On page 80, line 10, insert ``operational and'' before 
     ``field reports''.
       On page 80, between lines 13 and 14, insert the following:
       (2) The Ombudsman, the Analytic Review Unit, and other 
     staff of the Office shall have access to any employee, or any 
     employee of a contractor, of the intelligence community whose 
     testimony is needed for the performance of the duties of the 
     Ombudsman.

  Mr. ROBERTS. This amendment clarifies the role of the analytical 
review unit that the Collins and Lieberman bill creates within the 
Office of the Ombudsman of the National Intelligence Authority. The 
amendment specifies that the unit will evaluate the quality of the 
analysis of our national intelligence agency and, where appropriate, 
issue nonbinding--and I underline ``nonbinding''--recommendations for 
present personnel actions to include additional training, 
commendations, and also any action that would be disciplinary.
  This quality control mechanism will help instill accountability--we 
have heard that word over and over again in regard to intelligence 
reform, independence, leadership, and accountability--in the 
intelligence community's analytical effort in an effort to guard 
against analytical failures such as prewar intelligence assessment 
concerning Iraq's weapons of mass destruction programs by providing 
regular quality control audits of the intelligence community's 
analysis.
  I am extremely hopeful the managers can find a way to include this 
important amendment in the bill.
  I ask unanimous consent to set aside the amendment at this time.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                 Amendments Nos. 3739 and 3750, En Bloc

  Mr. ROBERTS. Mr. President, I ask unanimous consent to call up en 
bloc amendments 3739 and 3750 and ask that they be considered 
separately.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report.
  The legislative clerk read as follows:

       The Senator from Kansas [Mr. Roberts] proposes amendments 
     numbered 3739 and 3750, en bloc.

  Mr. ROBERTS. I ask unanimous consent that the reading of the 
amendments be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendments are as follows:


                           amendment no. 3739

(Purpose: To ensure the sharing of intelligence information in a manner 
  that promotes all-sources analysis and to assign responsibility for 
                         competitive analysis)

       On page 17, between lines 19 and 20, insert the following:
       (11) direct an element or elements of the intelligence 
     community to conduct competitive analysis of analytic 
     productions, particularly products having national 
     importance;
       (12) implement policies and procedures to encourage sound 
     analytic methods and tradecraft throughout the elements of 
     the intelligence community and to ensure that the elements of 
     the intelligence community regularly conduct competitive 
     analysis of analytic products, whether such products are 
     produced by or disseminated to such elements;
       On page 17, line 20, strike ``(11)'' and insert ``(13)''.
       On page 17, line 22, strike ``(12)'' and insert ``(14)''.
       On page 18, line 1, strike ``(13)'' and insert ``(15)''.
       On page 18, between lines 3 and 4, insert the following:
       (16) ensure that intelligence (including unevaluated 
     intelligence), the source of such intelligence, and the 
     method used to collect such intelligence is disseminated in a 
     timely and efficient manner that promotes comprehensive all-
     source analysis by appropriately cleared officers and 
     employees of the United States Government, notwithstanding 
     the element of the intelligence community that collected such 
     intelligence or the location of such collection;
       On page 18, line 4, strike ``(14)'' and insert ``(17)''.
       On page 18, line 7, strike ``(15)'' and insert ``(18)''.
       On page 18, line 14, strike ``(16)'' and insert ``(19)''.
       On page 18, line 17, strike ``(17)'' and insert ``(20)''.
       On page 18, line 20, strike ``(18)'' and insert ``(21)''.
       On page 19, line 5, strike ``(19)'' and insert ``(22)''.
       On page 19, line 7, strike ``(20)'' and insert ``(23)''.
       On page 20, strike lines 12 through 14 and insert the 
     following:

     shall have access to all intelligence and, consistent with 
     subsection (k), any other information which is collected by, 
     possessed by, or under the control of any department, agency, 
     or other element of the United States Government when 
     necessary to carry out the duties and responsibilities of the 
     Director under this Act or any other provision of law.
       On page 31, line 1, strike ``112(a)(16)'' and insert 
     ``112(a)(19)''.
       On page 31, strike line 22 and insert the following:

     ensures information-sharing, including direct, continuous, 
     and automated access to unevaluated intelligence data in its 
     earliest understandable form.
       On page 32, beginning on line 3, strike ``information-
     sharing'' and all that follows through line 4 and insert 
     ``information-sharing, including direct, continuous, and 
     automated access to unevaluated intelligence data in its 
     earliest understandable form.''.
       On page 32, line 16, insert ``and Analysis'' after 
     ``Collection''.
       On page 32, line 19, insert ``and analysis'' after 
     ``collection''.
       On page 32, beginning on line 21, strike ``the head of each 
     element of the intelligence community'' and insert ``the head 
     of any department, agency, or element of the United States 
     Government, and the components and programs thereof,''.
       On page 56, line 20, strike ``(15) and (16)'' and insert 
     ``(18) and (19)''.
       On page 194, line 9, strike ``112(a)(11)'' and insert 
     ``112(a)(13)''.
       On page 195, line 16, strike ``112(a)(11)'' and insert 
     ``112(a)(13)''.
       On page 195, line 23, strike ``112(a)(11)'' and insert 
     ``112(a)(13)''.
       On page 196, line 7, strike ``112(a)(11)'' and insert 
     ``112(a)(13)''.


                           amendment no. 3750

    (Purpose: To clarify the responsibilities of the Directorate of 
 Intelligence of the National Counterterrorism Center for information-
                   sharing and intelligence analysis)

       On page 87, line 16, strike ``and'' at the end.

[[Page S10220]]

       On page 87 between lines 16 and 17, insert the following:
       (D) ensure that intelligence (including unevaluated 
     intelligence) concerning suspected terrorists, their 
     organizations, and their capabilities, plans, and intentions, 
     the source of such intelligence, and the method used to 
     collect such intelligence is disseminated in a timely and 
     efficient manner that promotes comprehensive all-source 
     analysis with the Directorate and by appropriately cleared 
     officers and employees of the United States Government, 
     notwithstanding the element of the intelligence community 
     that collected such intelligence or the location of such 
     collection;
       (E) conduct, or direct through the National Intelligence 
     Director an element or elements of the intelligence community 
     to conduct, competitive analyses of intelligence products 
     relating to suspected terrorists, their organizations, and 
     their capabilities, plans, and intentions, particularly 
     products having national importance;
       (F) implement policies and procedures to encourage 
     coordination by all elements of the intelligence community 
     that conduct analysis of intelligence regarding terrorism of 
     all Directorate products of national importance and, as 
     appropriate, other products, before their final 
     dissemination;
       (G) ensure the dissemination of Directorate intelligence 
     products to the President, to Congress, to the heads of other 
     departments and agencies of the executive branch, to the 
     Chairman of the Joint Chiefs of Staff and senior military 
     commanders, and to such other persons or entities as the 
     President shall direct; and
       On page 87, line 17, strike ``(D)'' and insert ``(H)''.
       On page 96, line 16, strike ``foreign''.

  Mr. ROBERTS. This amendment clarifies that a primary mission of 
National Intelligence Authority is the elimination of barriers that 
impede any coordination of all intelligence activities, not merely 
counterterrorism activities.
  Three years after 9/11, information sharing still remains, 
unfortunately, a serious problem. As recently as last week--as recently 
as last week--the Senate Intelligence Committee received a disturbing 
briefing in closed session that clearly demonstrated that even on 
matters related to the current terrorist threat to our homeland, the 
intelligence agencies still stubbornly refuse to adequately share 
information.
  The National Security Act of 1947 clearly stipulates that a primary 
mission of the head of the intelligence community is to protect sources 
and methods. The current language of the Collins-Lieberman bill wisely 
balances this with the need to also ensure that intelligence concerning 
terrorism is certainly shared with those who need it.
  This amendment seeks to broaden that responsibility to include all 
intelligence threats, such as the proliferation of weapons of mass 
destruction, North Korea, and other intelligence threats, not just 
terrorism. Terrorism is a serious threat, but it is not the last threat 
that we will face.
  This amendment, which would build on the Collins-Lieberman bill and 
their already strong provisions for a ``trusted information network,'' 
also stipulates that the national intelligence director is responsible 
for ensuring that the information-sharing process be automated to allow 
intelligence analysts to ``pull'' information from databases rather 
than waiting for somebody to push it to them. Currently, much of the 
information sharing that does occur in the intelligence community 
happens only through phones and fax machines, which is very 
inefficient, and also it is unreliable.
  I am hopeful the managers can find a way to include this important 
amendment in the bill. I ask unanimous consent that the amendment be 
set aside.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 3747

  Mr. ROBERTS. Mr. President, I ask unanimous consent to call up 
amendment No. 3747.
  The PRESIDING OFFICER. Without objection, the clerk will report.
  The legislative clerk read as follows:

       The Senator from Kansas [Mr. Roberts] proposes an amendment 
     numbered 3747.

  Mr. ROBERTS. Mr. 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 the National Intelligence Director with flexible 
  administrative authority with respect to the National Intelligence 
                               Authority)

       On page 43, after line 20, add the following:

     SEC. 119. ADMINISTRATIVE AUTHORITIES.

       (a) Exercise of Administrative Authorities.--
     Notwithstanding any other provision of law, the National 
     Intelligence Director may exercise with respect to the 
     National Intelligence Authority any authority of the Director 
     of the Central Intelligence Agency with respect to the 
     Central Intelligence Agency under a provision of the Central 
     Intelligence Agency Act of 1949 specified in subsection (c).
       (b) Delegation of Administrative Authorities.--
     Notwithstanding any other provision of law, the National 
     Intelligence Director may delegate to the head of any other 
     element of the intelligence community with a program, 
     project, or activity within the National Intelligence Program 
     for purposes of such program, project or activity any 
     authority of the Director of the Central Intelligence Agency 
     with respect to the Central Intelligence Agency under a 
     provision of the Central Intelligence Agency Act of 1949 
     specified in subsection (c).
       (c) Specified Authorities.--The authorities of the Director 
     of the Central Intelligence Agency specified in this 
     subsection are the authorities under the Central Intelligence 
     Agency Act of 1949 as follows:
       (1) Section 3 (50 U.S.C. 403c), relating to procurement.
       (2) Section 4 (50 U.S.C. 403e), relating to travel 
     allowances and related expenses.
       (3) Section 5 (50 U.S.C. 403f), relating to administration 
     of funds.
       (4) Section 6 (50 U.S.C. 403g), relating to exemptions from 
     certain information disclosure requirements.
       (5) Section 8 (50 U.S.C. 403j), relating to availability of 
     appropriations.
       (6) Section 11 (50 U.S.C. 403k), relating to payment of 
     death gratuities.
       (7) Section 12 (50 U.S.C. 403l), relating to acceptance of 
     gifts, devises, and bequests.
       (8) Section 21 (50 U.S.C. 403u), relating to operation of a 
     central services program.
       (d) Exercise of Delegated Authority.--Notwithstanding any 
     other provision of law, the head of an element of the 
     intelligence community delegated an authority under 
     subsection (b) with respect to a program, project, or 
     activity may exercise such authority with respect to such 
     program, project, or activity to the same extent that the 
     Director of the Central Intelligence Agency may exercise such 
     authority with respect to the Central Intelligence Agency.
       On page 108, line 12, strike ``(1)''.
       On page 108, line 19, strike ``(2)'' and insert ``(b) 
     Deposit of Proceeds.--''.
       On page 108, strike line 23 and all that follows through 
     page 109, line 3.

  Mr. ROBERTS. Mr. President, this amendment would provide the national 
intelligence director with certain specified authorities already 
provided to the Central Intelligence Agency. These provisions include 
flexible acquisition, spending, personnel, and management authorities. 
As I have indicated, the national intelligence director already has 
these authorities. In addition, the amendment permits the national 
intelligence director to delegate any of the specified authorities to 
the head of an element of the intelligence community for use by that 
element.
  Under the National Security Act of 1947, the CIA has a range of 
authorities in matters such as acquisition, spending, personnel, and 
management that do not exist anywhere else in Government. These sorts 
of authorities are often required to effectively conduct intelligence 
operations in a very timely way. This amendment seeks to empower the 
national intelligence director by allowing him to exercise these 
authorities anywhere in the intelligence community that he sees fit, 
not just at the CIA.
  I am extremely hopeful that the managers can find a way to include 
this very important amendment in the bill.
  Mr. President, I ask unanimous consent to set aside the amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 3742

  Mr. ROBERTS. Mr. President, I ask unanimous consent to call up 
amendment No. 3742.
  The PRESIDING OFFICER. Without objection, the clerk will report.
  The legislative clerk read as follows:

       The Senator from Kansas [Mr. Roberts] proposes an amendment 
     numbered 3742.

  Mr. ROBERTS. Mr. 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 clarify the continuing applicability of section 504 of the 
  National Security Act of 1947 to the obligation and expenditure of 
   funds appropriated for the intelligence and intelligence-related 
                    activities of the United States)

       On page 28, line 17, strike ``or'' and insert ``and''.
       On page 33, between lines 2 and 3, insert the following:

[[Page S10221]]

     SEC. 114. FUNDING OF INTELLIGENCE ACTIVITIES.

       (a) Funding of Activities.--(1) Notwithstanding any other 
     provision of law, appropriated funds available to an 
     intelligence agency may be obligated or expended for an 
     intelligence or intelligence-related activity only if--
       (A) those funds were specifically authorized by the 
     Congress for use for such activities;
       (B) in the case of funds from the Reserve for Contingencies 
     of the National Intelligence Director, and consistent with 
     the provisions of section 503 of the National Security Act of 
     1947 (50 U.S.C. 413b) concerning any significant anticipated 
     intelligence activity, the National Intelligence Director has 
     notified the appropriate congressional committees of the 
     intent to make such funds available for such activity; or
       (C) in the case of funds specifically authorized by the 
     Congress for a different activity--
       (i) the activity to be funded is a higher priority 
     intelligence or intelligence-related activity; and
       (ii) the National Intelligence Director, the Secretary of 
     Defense, or the Attorney General, as appropriate, has 
     notified the appropriate congressional committees of the 
     intent to make such funds available for such activity.
       (2) Nothing in this subsection prohibits the obligation or 
     expenditure of funds available to an intelligence agency in 
     accordance with sections 1535 and 1536 of title 31, United 
     States Code.
       (b) Applicability of Other Authorities.--Notwithstanding 
     any other provision of this Act, appropriated funds available 
     to an intelligence agency may be obligated or expended for an 
     intelligence, intelligence-related, or other activity only if 
     such obligation or expenditure is consistent with subsections 
     (b), (c), and (d) of section 504 of the National Security Act 
     of 1947 (50 U.S.C. 414).
       (c) Definitions.--In this section:
       (1) The term ``intelligence agency'' means any department, 
     agency, or other entity of the United States involved in 
     intelligence or intelligence-related activities.
       (2) The term ``appropriate congressional committees'' 
     means--
       (A) the Permanent Select Committee on Intelligence and the 
     Committee on Appropriations of the House of Representatives; 
     and
       (B) the Select Committee on Intelligence and the Committee 
     on Appropriations of the Senate.
       (3) The term ``specifically authorized by the Congress'' 
     means that--
       (A) the activity and the amount of funds proposed to be 
     used for that activity were identified in a formal budget 
     request to the Congress, but funds shall be deemed to be 
     specifically authorized for that activity only to the extent 
     that the Congress both authorized the funds to be 
     appropriated for that activity and appropriated the funds for 
     that activity; or
       (B) although the funds were not formally requested, the 
     Congress both specifically authorized the appropriation of 
     the funds for the activity and appropriated the funds for the 
     activity.
       On page 33, line 3, strike ``114.'' and insert ``115.''.
       On page 35, line 1, strike ``115.'' and insert ``116.''.
       On page 38, line 21, strike ``116.'' and insert ``117.''.
       On page 40, line 10, strike ``117.'' and insert ``118.''.
       On page 43, line 1, strike ``118.'' and insert ``119.''.
       On page 200, between line 18 and 19, insert the following:

     SEC. 309. CONFORMING AMENDMENT ON FUNDING OF INTELLIGENCE 
                   ACTIVITIES.

       Section 504(a)(3) of the National Security Act of 1947 (50 
     U.S.C. 414(a)(3)) is amended--
       (1) in subparagraph (A), by adding ``and'' at the end;
       (2) by striking subparagraph (B); and
       (3) by redesignating subparagraph (C) as subparagraph (B).
       On page 200, line 19, strike ``309.'' and insert ``310.''.
       On page 201, line 11, strike ``310.'' and insert ``311.''.
       On page 203, line 9, strike ``311.'' and insert ``312.''.
       On page 204, line 1, strike ``312.'' and insert ``313.''.

  Mr. ROBERTS. Mr. President, this amendment would preserve the 
requirement in section 504 of the National Security Act that funds 
appropriated for an intelligence activity must also be specifically 
authorized.
  I am hopeful I can work with the managers of the bill and that we 
will be able to include this important amendment in the bill. It is 
absolutely essential.
  Mr. President, I ask unanimous consent that the amendment be set 
aside.
  The PRESIDING OFFICER. Without objection, it is so ordered.


               Amendments Nos. 3740, 3741, 3744, and 3751

  Mr. ROBERTS. Mr. President, I ask unanimous consent to call up en 
bloc amendments Nos. 3740, 3741, 3744, and 3751, and I ask they be 
considered separately.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report.
  The legislative clerk read as follows:

       The Senator from Kansas [Mr. Roberts] proposes amendments 
     numbered 3740, 3741, 3744, and 3751 en bloc.

  Mr. ROBERTS. Mr. President, I ask unanimous consent that reading of 
the amendments be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendments en bloc are as follows:


                           amendment no. 3740

    (Purpose: To include among the primary missions of the National 
 Intelligence Director the elimination of barriers to the coordination 
                      of intelligence activities)

       On page 9 line 13, insert ``and intelligence'' after 
     ``counterterrorism''.


                           amendment no. 3741

   (Purpose: To permit the National Intelligence Director to modify 
    National Intelligence Program budgets before their approval and 
                      submittal to the President)

       On page 23, line 1, strike ``may require modifications'' 
     and insert ``may modify, or may require modifications,''.


                           amendment no. 3744

   (Purpose: To clarify the limitation on the transfer of funds and 
   personnel and to preserve and enhance congressional oversight of 
                        intelligence activities)

       On page 28, line 17, strike ``or'' and insert ``and''.
       On page 112, beginning on line 12, strike ``Committee on 
     Governmental Affairs of the Senate and the Committee on 
     Government Reform of the House of Representatives'' and 
     insert ``Select Committee on Intelligence and the Committee 
     on Governmental Affairs of the Senate and the Permanent 
     Select Committee on Intelligence and the Committee on 
     Government Reform of the House of Representatives''.
       On page 172, strike line 18 and all that follows through 
     page 174, line 23, and insert the following

     SEC. 224. COMMUNICATIONS WITH CONGRESS.


                           amendment no. 3751

 (Purpose: To clarify the responsibilities of the Secretary of Defense 
            pertaining to the National Intelligence Program)

       On page 200, strike lines 5 through 11 and insert the 
     following:

     SEC. 307. CONFORMING AMENDMENTS ON RESPONSIBILITIES OF 
                   SECRETARY OF DEFENSE PERTAINING TO NATIONAL 
                   INTELLIGENCE PROGRAM.

       Section 105(a) of the National Security Act of 1947 (50 
     U.S.C. 403-5(a)) is amended--
       (1) in paragraph (1), by striking ``ensure'' and inserting 
     ``assist the Director in ensuring''; and
       (2) in paragraph (2), by striking ``appropriate''.

  Mr. ROBERTS. Mr. President, these amendments contain clarifications 
to the authorities of the national intelligence director. I am told 
that our staffs have been working very diligently on these matters. I 
believe that they strengthen the bill, and I am hopeful they will be 
accepted by the managers of the bill.
  Mr. President, I ask unanimous consent that these amendments now be 
set aside.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ROBERTS. Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Mr. President, I thank the Senator from Kansas, the 
distinguished chairman of the Senate Intelligence Committee, for his 
thoughtful amendments.
  I have a great deal of admiration and respect for the Senator's 
knowledge in this area. I was very pleased that he participated in some 
of the committee's hearings, particularly the one where we had the 
former DCIs come in and give us their views. Both and he Senator 
Rockefeller took the time out of their August recess to come to that 
hearing and fully participated in it. They have been providing us with 
their insight and guidance, which I very much appreciate.
  The Senator from Kansas has offered a series of thoughtful amendments 
that are designed to clarify provisions in the bill with regard to 
information sharing, the primary mission of the National Intelligence 
Authority, the authorities of the NID, and several other matters. We 
agree largely with the goals of these amendments, and we are trying to 
work out agreement on specific language.
  One of the problems we face, since we have adopted a lot of different 
amendments, including one cosponsored by the Senator last night having 
to do with an office of alternative analysis, is we need to make sure 
we are not duplicating changes that have been made by other amendments. 
It is a bit of a moving target here.

[[Page S10222]]

  Another problem is, of course, we are trying to maintain that 
delicate balance struck by our bill. Any amendment that further 
strengthens the NID's authorities is a particular concern to one group; 
any amendment that weakens the NID's authorities is a particular 
concern to another. I know the Senator is very aware of the competing 
pressures in this regard.
  In short, I want to assure the Senator and thank him for his 
contributions. We will try to work out these amendments consistent with 
the approach we have taken in the underlying bill. I very much 
appreciate the Senator's cooperation and good work and his leadership 
in this area.
  Mr. ROBERTS. Mr. President, will the distinguished chairman yield?
  Ms. COLLINS. I would be happy to yield.
  Mr. ROBERTS. I say to the Senator, I would like to thank you for your 
very kind remarks. As the chairman knows, we have 22 professional 
staffers who were former analysts throughout the intelligence 
community. We would like to think we have expertise on this issue. As 
the chairman knows and the distinguished ranking member knows, we did 
produce a 511-page inquiry on WMD in regard to the inquiry on the 
prewar intelligence. I think it is the most thorough look at the 
intelligence community that has been conducted in the last 20 years. I 
am very proud of our staff. I think we have an outstanding staff.
  I would just like to say this: This is not going to be the best 
possible bill. This is going to be the best bill possible to achieve 
that delicate balance that the distinguished chairman has talked about. 
And that is not being untoward. That is not bad. This is a very 
comprehensive bill. This touches our entire intelligence community. So 
we are bound to have to take a good look at this, and we are also going 
to be bound in terms of our responsibilities in terms of oversight.
  I would imagine that with any bill you have what is called technical 
corrections. In this particular bill, we are going to have to take a 
hard look at not only technical corrections but monitor this bill as it 
evolves. But the important thing is that both Senators have been the 
primary movers of this bill in moving it forward in a comprehensive 
way. I credit them for their work. I can speak for all members of the 
Intelligence Committee: We are here, and we are here to help.
  I thank the Senator for her kind comments.
  The PRESIDING OFFICER (Mr. Burns). The Senator from Connecticut.
  Mr. LIEBERMAN. Mr. President, I cannot thank the Senator from Kansas 
enough, chairman of the Intelligence Committee, for what he has said. 
It means everything to me and, I know, to Senator Collins. We were 
asked to take on this assignment in the Governmental Affairs Committee 
because we are the committee of jurisdiction over governmental 
reorganization. The Intelligence Committee clearly has the experience 
and expertise in matters of intelligence. Senator Roberts and Senator 
Rockefeller have contributed to the product we have turned out. But it 
is critically important to the success of what we have started here 
that our committee be working together with Senator Roberts and his 
committee.
  I appreciate the effort and thoughtfulness that went into the many 
amendments that the Senator from Kansas is offering. Our staffs are 
looking them over. As Senator Collins said, I hope we can accept a 
number of them. They share the goals that we have together, and they 
will strengthen the bill. Then I look forward to Senator Roberts being 
on the conference committee and helping us to come up with a good 
result when we meet our friends from the House.
  Most of all, I thank him, my friend. Together we are going to get 
something good done, not just for the intelligence community but for 
the reason for which our intelligence agencies exist, and that is for 
our national security.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. Who seeks recognition?
  Mr. LIEBERMAN. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. CHAMBLISS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 3801

  Mr. CHAMBLISS. Mr. President, I call for regular order with respect 
to amendment No. 3801.
  The PRESIDING OFFICER. The amendment is pending.
  Mr. CHAMBLISS. Mr. President, I rise today, along with my colleague 
Senator Kyl, in support of amendment No. 3801 which I will describe in 
a minute.
  Before I get to that, let me thank the chairman and ranking member of 
the Governmental Affairs Committee for the great work they have done on 
this bill. There has been no more delicate situation this body has had 
to deal with in many years, certainly in the 10 years I have been 
privileged to be a part of the Congress. Certainly there is no more 
important issue before us today because this issue involves the safety 
and security of every American, not just this generation but future 
generations to come. No two people have the concern of the American 
people more at heart than do Chairman Collins and Ranking Member 
Lieberman, both of whom I have tremendous respect for. I appreciate 
their leadership on this issue.
  Today I rise along with Senator Kyl in support of amendment No. 3801 
to S. 2845. This amendment focuses on intelligence reform relative to 
the civil liberties provision in the underlying bill. Section 211 of 
the underlying bill establishes a civil liberties board and gives that 
board certain powers and authorities.
  Let me be clear: There is no stronger advocate for civil liberties in 
the Senate than myself. As a lawyer and a legislator, my entire 
professional life has been intertwined with the preservation of the 
liberties we all enjoy as Americans and which are enshrined in our 
Constitution and our Bill of Rights. The issue we debate today is not 
whether we support our civil liberties; we all support them as 
contained in the Constitution and the Bill of Rights. The question is, 
how best to balance this issue with other rights that form the 
cornerstone of our Constitution: namely, that among our inalienable 
rights from our Creator are life, liberty, and the pursuit of 
happiness.
  When Islamic terrorists threaten our life and our liberties, we must 
act to protect ourselves. That is why we are here today debating the 
reformation of our intelligence community. We know our enemies want to 
kill us, and we understand that good intelligence will protect us. In 
our country, we may differ on how to do this, but there is no 
disagreement on why we need to do it. Our challenge is to increase our 
intelligence capabilities without undue infringement on our individual 
liberties.
  Today our struggle is against an enemy unique in our history. The 
enemy is not a nation state. Rather, it is a warped philosophy that 
distorts any rational notion of what a Supreme Being expects of 
mankind. There are no rules of warfare for our enemy. They feel free 
and unencumbered to fly civilian airplanes loaded with innocent 
passengers into buildings, killing thousands of ordinary, hard-working, 
good citizens of our country. They relish in cutting off the heads of 
people who have done no harm to them whatsoever, recording it on video 
and broadcasting their horrific, inhumane actions to the world.
  One only has to look at one of those tapes or listen to the voices of 
helpless victims pleading for their lives to grasp how evil and 
dangerous these Islamic terrorists are and why this Nation must succeed 
in our fight against them.
  To win against such an enemy, we need to keep our focus. We need 
clear, unambiguous, and non-duplicative orders and laws pertaining to 
our war on terrorism and the protection of our civil liberties.
  S. 2845 is a bill to strengthen our intelligence capabilities. It is 
meant to put more teeth into our ability to track, find, and arrest or 
kill those who wish to murder our people and destroy our way of life. 
It is not a bill regarding our civil liberties.
  As a member of the Senate Judiciary Committee on the Constitution, 
Civil Rights, and Property Rights, which has oversight responsibility 
in this area, I

[[Page S10223]]

am keenly aware of the safeguards that are already in place to protect 
our civil liberties from overreaching by the Government. Within the 
Department of Justice, there is an entire division devoted to 
protecting our civil rights. This division is responsible for 
coordinating the civil rights enforcement efforts of Federal agencies 
and assists in identifying and removing provisions, policies, and 
programs that violate our individual rights and liberties.
  Last month, by Executive Order 13353, President Bush created the 
President's Board on Safeguarding Americans' Civil Liberties. This 
board is specifically designed to further strengthen the protection of 
the rights of Americans in the effective performance of national 
security and homeland security functions.
  As the President said when he established the board and I quote, 
``The United States Government has a solemn obligation, and shall 
continue fully, to protect the legal rights of all Americans, including 
freedoms, civil liberties, and information privacy guaranteed by 
Federal law, in the effective performance of national security and 
homeland security functions.''
  Our amendment to S. 2845 clearly highlights the importance we all 
place on civil liberties, but it leaves the power to enforce our laws 
on this issue where it belongs--with the appropriate Federal agencies 
that are already equipped and designed for that function.
  Whenever U.S. officials or U.S. military personnel violate any of our 
laws, they need to be fully prosecuted. Of course, we have good systems 
already in place to make sure that happens. For example, as bad as the 
abuse of some Iraqi prisoners was, our military justice system is 
handling those soldiers accused in exactly the right way.
  Let me tell you a little bit about what this board is designed to do 
and the powers and authorities of this board. I am reading from page 
155 of the underlying bill:

       The Board shall continually review the information sharing 
     practices of the department's agencies, and elements of the 
     executive branch to determine whether they appropriately 
     protect privacy and civil liberties . . .

  And so on.
  Now, further, on page 158, in order to accomplish the provisions set 
forth in the section I just read, this board has access to information 
as follows, and I am quoting from page 158, line 21:

       If determined by the Board to be necessary to carry out its 
     responsibilities under this section, the Board is authorized 
     to . . .

  Now I read on page 159, line 12:

     . . . require, by subpoena issued at the direction of a 
     majority of the members of the Board, persons (other than 
     departments, agencies, and elements of the executive branch) 
     to produce any relevant information, documents, reports, 
     answers, records, accounts, papers, and other documentary or 
     testimonial evidence.

  Now, this board has an obligation not to sit back and wait for any 
complaints to be raised, or any issues to be raised with the board, but 
an affirmative obligation to go out and review the policies and 
procedures of the civil organizations underneath the executive 
department. So what is going to happen, without question, is there will 
be problems in the intelligence community. We know and understand that. 
The No. 1 deficiency in the intelligence community is highlighted by 
every single board; every single committee within this body, or outside 
committee, that has looked at this issue has agreed that the lack of 
human intelligence is what the main deficiency has been and continues 
to be today.
  The only way we are going to cure that problem is to encourage our 
spies in the field--and that is exactly what they are--and these spies 
are absolutely necessary to provide the kind of intelligence our 
military and civilian authorities need to ensure our national security.
  This board is going to have the authority to aggressively go out and 
review any situation relative to a case that is ongoing by any officer 
of the CIA, wherever in the world that officer may be operating. This 
board is going to have the ability to take statements from individuals 
who are Government employees, or people outside the Government, who 
have information relative to any case they want to look at.
  This bill goes even further. It says this board has authority by 
subpoena issued by just a majority of the members of this board, to 
require individuals or agencies to produce documents, including 
classified documents, that may be reviewed on any particular case.
  What is that going to do to every single CIA agent who operates in 
the field, or to every DIA agent who operates in the field and who 
shares information with the CIA? I think, without question, what we are 
doing by the enactment of these particular sections is to create a 
morale problem at the Central Intelligence Agency and our other 
intelligence agencies throughout our intelligence community that we 
will never repair.
  We are on the back side today, thank goodness, of having repealed the 
Deutch guidelines that were implemented in 1995. Those guidelines 
prohibited the expenditure of tax money being paid to individuals 
providing us intelligence if they had a criminal record or any kind of 
disparaging record in their past. Well, what that meant was that we 
could only hire Sunday school teachers to go out and spy on bad guys 
around the world. Thank goodness this body took affirmative action in 
the last couple of years to repeal those guidelines. But it was only 
after the events of September 11 that we were able to accomplish that.
  In addition to the morale problem that will be created, which I don't 
think we will ever overcome, one might say this is a board that is 
going to be appointed by the President, confirmed by the Senate, and 
they are not to be a political board. Everybody in this body knows what 
that means. This is going to be a political board. In fact, the 
legislation itself says that members of the board shall be selected 
solely on the basis of their professional qualifications, achievements, 
public stature, expertise in civil liberties and privacy, relevant 
experience, and without regard to political affiliation. But in no 
event shall more than three members of the board be members of the same 
political party. So what we are doing here, in effect, is creating a 
political board. It makes no difference to me which administration is 
in office. I think it is bad policy to have our CIA agents, DIA agents, 
and every other intelligence officer in the field that operates for the 
sole purpose of gathering intelligence to save and protect Americans 
from being killed or harmed, having this board look over their shoulder 
and have the ability not just to investigate the case they are 
operating on, but to look at any information they have shared with 
anybody else, or any information that they have received from anybody 
can also be reviewed and traced back. I think it is bad policy to 
create a board and give them that kind of power and authority and 
expect them to operate in any way other than a political manner.

  Rather than set up another entity with broad powers, including 
subpoena power, to look over the activities of our intelligence 
personnel who are fully engaged in important and dangerous activities 
to protect all of us, I would rather give our support and confidence to 
those in the Department of Justice who are working on our behalf every 
day to protect our civil liberties. I want to allow the newly formed 
President's Board on Safeguarding Americans' Civil Liberties to begin 
their work. Let us not establish competing and duplicative 
bureaucracies.
  Our amendment will strike from section 211 those provisions expanding 
the powers given to this board to the point of not allowing them to 
subpoena information, including classified information, from agents 
around the world and other folks involved in the intelligence 
community. We need to rapidly improve our intelligence capabilities, 
and that should be the focus of S. 2845. The protection of our civil 
liberties is already the focus of the President and the Department of 
Justice, and they have the resources to do just that.
  With that, I yield to my friend from Arizona.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, I think the Senator from Georgia has covered 
this area very well. I spoke to it yesterday. I know Senator Stevens is 
here to lay down some amendments. I will take a few minutes to add one 
primary thought to what the Senator from Georgia has said, and then 
quickly lay down three amendments, and then I will be done.

[[Page S10224]]

  Let me make this one key point about what the Senator from Georgia is 
talking about. The 9/11 Commission did not recommend the board or the 
many different assistant directorships and other provisions, from an 
ombudsman to IGs and the like, that are included in the legislation 
that is before us today. I am going to tell you what the 9/11 
Commission did recommend. What it recommended is what the President has 
done. What the committee did went far beyond that.
  Our amendment does not eliminate all of that, but at least it cuts it 
back to some extent. That is what I want to explain. Senator Durbin 
discussed this privacy amendment at length yesterday. His primary point 
was that the 9/11 Commission recommended this, and therefore the 
committee did it, and therefore we ought to not amend it out. In fact, 
one of the things he said was the 9/11 Commission recommended this 
board, and following their recommendation, the legislation included it.
  What exactly did the 9/11 Commission recommend? There were three 
specific recommendations. They take one and a half pages out of the 
entire report. I will paraphrase the first two because they are not 
directly on point:

       As the President determines the guidelines for information 
     sharing among government agencies and by those agencies with 
     the private sector, he should safeguard the privacy of 
     individuals about whom information is shared.

  Fine.
  Two:

       The burden of proof for retaining a particular governmental 
     power should be on the executive, to explain (a) that the 
     power actually materially enhances security and (b) that 
     there is adequate supervision of the executive's use of the 
     powers. . . .

  And three, and this is the key:

       At this time of increased and consolidated government 
     authority, there should be a board within the executive 
     branch to oversee adherence to the guidelines we recommend 
     and the commitment the government makes to defend our civil 
     liberties.

  That is it. As the Senator from Georgia said, that is exactly what 
the President did in his Executive Order 13353. The Senator from 
Georgia described what that Executive order does. I have a full copy of 
all the entities involved in it, the instructions to that board to 
bring any credible information of possible violations of law to 
appropriate end, to undertake other efforts to protect the legal rights 
of all Americans, including freedoms, civil liberties, and information 
privacy guaranteed by Federal law, and so on.
  In other words, what the 9/11 Commission recommended the President 
did. What is in this bill goes far beyond that. What I said yesterday 
with respect to risk aversion makes it clear that what the committee 
did not only goes far beyond what the 9/11 Commission recommended but 
will virtually guarantee that the risk aversion, which is a problem 
today, is exacerbated tenfold so that instead of being able to collect 
more intelligence and analyze that intelligence better and have people 
who are not involved in group-think, who are actually willing to think 
outside the box and not be intimidated by risks aversion, instead of 
that, we are going to get more of that because of all the layers of 
bureaucracy that is going to be looking over people's shoulders.
  What the bill does is require two officers within the national 
intelligence authority, two out of six, one responsible for privacy, 
the other for civil rights and civil liberties. In addition, there is 
an inspector general within the national intelligence authority who, 
among other things, is to monitor and inform the director of violations 
of civil liberties and privacy.
  There is an ombudsman, which I mentioned a moment ago. There is an 
independent privacy and civil liberties oversight board with extensive 
investigative authorities, which the Senator from Georgia talked about, 
and privacy and civil liberties officers within a long list of 
executive branch departments and agencies.
  So what does the amendment we have offered do? It deletes sections 
126 and 127 which require officers for privacy and civil liberties 
within the national intelligence authority because those already exist; 
it would strike section 212 requiring privacy and civil liberties 
officers within a long list of executive branch departments and 
agencies; and it would modify the privacy and civil liberties oversight 
board described in section 211. It does not eliminate it, so it would 
be duplicative of the board the President created.
  There will be an executive branch board and an outside board, but 
this board would not have the authority to subpoena private individuals 
or documents and reports, accounts, and other evidence of private 
individuals, nor would it have the power to compel through subpoena, 
for example, a department or agency to present documents.

  I am not even sure, by the way, this board would have the authority 
to do that under the Constitution. I am not sure that authority could 
be granted. In any event, that would be a very pernicious power granted 
to it when that power already exists in the ombudsman, in the inspector 
general, and the other privacy officers that exist. It is duplicative 
and unnecessary.
  The net result of all these different entities that have the same 
responsibility is to basically tell intelligence agencies: If you want 
to get to the end of your career and have a pension at the end of it, 
you better watch over your shoulder because there are a whole lot of 
other people doing that. That is not the way to enhance our security.
  Those are the additional points I wanted to make in addition to those 
I made yesterday with respect to this amendment. I hope before we vote 
on this amendment we will have an opportunity to present these 
arguments in short form with all of the Members in attendance.
  Mr. President, I indicated to the chairman of the committee what I 
intend to do next. Therefore, since our procedure is to lay down one 
amendment at a time, I ask unanimous consent to lay down three 
amendments, and I will explain what they are.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 3926

  Mr. KYL. Mr. President, the first is amendment No. 3926, which is at 
the desk, and I ask that amendment be read.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Arizona [Mr. Kyl] proposes an amendment 
     numbered 3926.

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

 (Purpose: To amend the Immigration and Nationality Act to ensure that 
 nonimmigrant visas are not issued to individuals with connections to 
terrorism or who intend to carry out terrorist activities in the United 
                                States)

       At the end, add the following new title:

                      TITLE IV--VISA REQUIREMENTS

     SEC. 401. FINDINGS.

       Congress makes the following findings:
       (1) Section 214 of the Immigration and Nationality Act (8 
     U.S.C. 1184) governs the admission of nonimmigrants to the 
     United States and sets forth the process for that admission.
       (2) Section 214(b) of the Immigration and Nationality Act 
     places the burden of proof on a visa applicant to establish 
     ``to the satisfaction of the consular officer, at the time of 
     the application for a visa . . . that he is entitled to a 
     nonimmigrant status''.
       (3) The report of the National Commission on Terrorist 
     Attacks Upon the United States included a recommendation that 
     the United States ``combine terrorist travel intelligence, 
     operations, and law enforcement in a strategy to intercept 
     terrorists . . . and constrain terrorist mobility''.
       (4) Fifteen of the 19 individuals who participated in the 
     aircraft hijackings on September 11, 2001, were nationals of 
     Saudi Arabia who legally entered the United States after 
     securing nonimmigrant visas despite the fact that they did 
     not adequately meet the burden of proof required by section 
     214(b) of the Immigration and Nationality Act.
       (5) Prior to September 11, 2001, the Department of State 
     allowed consular officers to approve nonimmigrant visa 
     applications that were incomplete, and without conducting 
     face-to-face interviews of many applicants.
       (6) Each of the 15 individuals from Saudi Arabia who 
     participated in the aircraft hijackings on September 11, 
     2001, filed a visa application that contained inaccuracies 
     and omissions that should have prevented such individual from 
     obtaining a visa.
       (7) Only one of the hijackers listed an actual address on 
     his visa application. The other hijackers simply wrote 
     answers such as ``California'', ``New York'', or ``Hotel'' 
     when asked to provide a destination inside the United States 
     on the visa application.

[[Page S10225]]

       (8) Only 3 of the individuals from Saudi Arabia who 
     participated in the aircraft hijackings on September 11, 
     2001, provided any information in the section of the visa 
     application that requests the name and address of an employer 
     or school in the United States.
       (9) The 2002 General Accounting Office report entitled 
     ``Border Security: Visa Process Should Be Strengthened as 
     Antiterrorism Tool'' outlined the written guidelines and 
     practices of the Department of State related to visa issuance 
     and stated that the Department of State allowed for 
     widespread discretion among consular officers in adhering to 
     the burden of proof requirements under section 214(b) of the 
     Immigration and Nationality Act.
       (10) The General Accounting Office report further stated 
     that the ``Consular Best Practices Handbook'' of the 
     Department of State gave consular managers and staff the 
     discretion to ``waive personal appearance and interviews for 
     certain nonimmigrant visa applicants''.
       (11) Only 2 of the 15 individuals from Saudi Arabia who 
     participated in the aircraft hijackings on September 11, 
     2001, were interviewed by Department of State consular 
     officers.
       (12) If the Department of State had required all consular 
     officers to implement section 214(b) of the Immigration and 
     Nationality Act, conduct face-to-face interviews, and require 
     that visa applications be completely and accurately filled 
     out, those who participated in the aircraft hijackings on 
     September 11, 2001, may have been denied nonimmigrant visas 
     and the tragedy of September 11, 2001, could have been 
     prevented.

     SEC. 402. IN PERSON INTERVIEWS OF VISA APPLICANTS.

       (a) Requirement for Interviews.--Section 222 of the 
     Immigration and Nationality Act (8 U.S.C. 1202) is amended by 
     adding at the end the following new subsection:
       ``(h) Notwithstanding any other provision of this Act, the 
     Secretary of State shall require every alien applying for a 
     nonimmigrant visa--
       ``(1) who is at least 12 years of age and not more than 65 
     years of age to submit to an in person interview with a 
     consular officer unless the requirement for such interview is 
     waived--
       ``(A) by a consular official and such alien is within that 
     class of nonimmigrants enumerated in section 101(a)(15)(A) or 
     101(a)(15)(G) or is granted a diplomatic visa on a diplomatic 
     passport or on the equivalent thereof;
       ``(B) by a consular official and such alien is applying for 
     a visa--
       ``(i) not more than 12 months after the date on which the 
     alien's prior visa expired;
       ``(ii) for the classification under section 101(a)(15) for 
     which such prior visa was issued;
       ``(iii) from the consular post located in the country in 
     which the alien is a national; and
       ``(iv) the consular officer has no indication that the 
     alien has not complied with the immigration laws and 
     regulations of the United States; or
       ``(C) by the Secretary of State if the Secretary determines 
     that such waiver is--
       ``(i) in the national interest of the United States; or
       ``(ii) necessary as a result of unusual circumstances; and
       ``(2) notwithstanding paragraph (1), to submit to an in 
     person interview with a consular officer if such alien--
       ``(A) is not a national of the country in which the alien 
     is applying for a visa;
       ``(B) was previously refused a visa, unless such refusal 
     was overcome or a waiver of ineligibility has been obtained;
       ``(C) is listed in the Consular Lookout and Support System 
     (or successor system at the Department of State);
       ``(D) may not obtain a visa until a security advisory 
     opinion or other Department of State clearance is issued 
     unless such alien is--
       ``(i) within that class of nonimmigrants enumerated in 
     section 101(a)(15)(A) or 101(a)(15)(G); and
       ``(ii) not a national of a country that is officially 
     designated by the Secretary of State as a state sponsor of 
     terrorism; or
       ``(E) is identified as a member of a group or sector that 
     the Secretary of State determines--
       ``(i) poses a substantial risk of submitting inaccurate 
     information in order to obtain a visa;
       ``(ii) has historically had visa applications denied at a 
     rate that is higher than the average rate of such denials; or
       ``(iii) poses a security threat to the United States.''.
       (b) Conduct During Interviews.--Section 222 of the 
     Immigration and Nationality Act (8 U.S.C. 1202), as amended 
     by subsection (a), is further amended by adding at the end 
     the following new subsection:
       ``(i) A consular officer who is conducting an in person 
     interview with an alien applying for a visa or other 
     documentation shall--
       ``(1) make every effort to conduct such interview fairly;
       ``(2) employ high professional standards during such 
     interview;
       ``(3) use best interviewing techniques to elicit pertinent 
     information to assess the alien's qualifications, including 
     techniques to identify any potential security concerns posed 
     by the alien;
       ``(4) provide the alien with an adequate opportunity to 
     present evidence establishing the accuracy of the information 
     in the alien's application; and
       ``(5) make a careful record of the interview to document 
     the basis for the final action on the alien's application, if 
     appropriate.''.

     SEC. 403. VISA APPLICATION REQUIREMENTS.

       Section 222(c) of the Immigration and Nationality Act (8 
     U.S.C. 1202(c)) is amended by inserting ``The alien shall 
     provide complete and accurate information in response to any 
     request for information contained in the application.'' after 
     the second sentence.

     SEC. 404. EFFECTIVE DATE.

       Notwithstanding section 341 or any other provision of this 
     Act, this title shall take effect 90 days after date of the 
     enactment of this Act.

  Mr. KYL. Mr. President, this amendment would codify and tighten the 
procedures for personal interviews of people seeking temporary visas. 
Mr. President, 15 of the 19 hijackers who came here received these 
kinds of visas. I think in every case but one they were not interviewed 
as the State Department guidelines call for, as the statute assumes but 
does not make explicit. This amendment will do that.
  If there are any issues or questions about it, I would be happy to 
talk with both the majority and minority. I am hopeful we can work that 
out.


                           Amendment No. 3881

              (Purpose: To protect crime victims' rights)

  Mr. KYL. Mr. President, the second amendment that I ask be read is at 
the desk. It is amendment No. 3881.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Arizona [Mr. Kyl] proposes an amendment 
     numbered 3881.

  Mr. KYL. Mr. President, I ask unanimous consent that the reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The amendment is printed in the Record of Thursday, September 30, 
2004, under ``Text of Amendments.'')
  Mr. KYL. Mr. President, I recall in the Senate a vote of I think it 
was 97 to 1 or 90-something to 1, in any event, earlier this year that 
passed a proposed statute to guarantee crime victims certain rights. 
That bill is pending in the House.
  What this does is take those exact rights and make them applicable to 
victims of terrorist attacks, terrorist crimes.
  Again, I invite comments. I do not think it will be difficult. We 
will work that out.


                           Amendment No. 3724

  (Purpose: To strengthen anti-terrorism investigative tools, promote 
information sharing, punish terrorist offenses, and for other purposes)

  Mr. KYL. Mr. President, I am happy to go to my third amendment. This 
is amendment No. 3724.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Arizona [Mr. Kyl], for himself, Mr. 
     Cornyn, Mr. Chambliss, and Mr. Nickles, proposes an amendment 
     numbered 3724.

  Mr. KYL. Mr. President, I ask unanimous consent that the reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The amendment is printed in the Record of Tuesday, September 28, 
2004 under ``Text of Amendments.'')
  Mr. KYL. Mr. President, I rise today to discuss an important 
amendment that I will offer to the 9/11 Commission bill. My amendment 
is substantially the same as S. 2679, the Tools to Fight Terrorism Act, 
a bill that I introduced earlier this year with several other members 
of the Judiciary Committee and the Senate leadership.
  Since the terrorist attacks of September 11, congressional committees 
and executive agencies have conducted exhaustive reviews of our 
Nation's antiterrorism safety net. We have had scores of hearings in 
the House and Senate judiciary committees, a Joint Intelligence 
Committee Inquiry, the 
9/11 Commission hearings and report, and the Justice Department has 
conducted extensive evaluations of its own antiterrorism capabilities. 
These hearings have uncovered numerous flaws and gaps in our 
antiterrorism system. We have found, for example, that in many cases 
antiterror investigators still have less authority to access 
information than do investigators of other crimes that, while serious, 
pale in comparison to the threat posed by international terrorism. We 
also have seen that some of the federal code's criminal offenses and 
penalties are far too light, or too narrow in their scope,

[[Page S10226]]

in light of the contemporary terrorist threat. Yet, despite all of 
these hearings and reports--and all of the gaps in our antiterror laws 
that have been identified--Congress has enacted no major antiterror 
legislation in almost three years.
  This amendment addresses many of the problems that these hearings and 
reports have identified over the last few years. At the outset, I would 
like to emphasize 5 things about the amendment.
  This amendment is not about the PATRIOT Act. This amendment does not 
reauthorize or extend the PATRIOT Act. Nor does it involve any of the 
supposedly ``controversial'' provisions of the PATRIOT Act.
  Nothing in TFTA deals with Section 215 subpoenas, which some critics 
have complained can be used to access a terrorist's records of book 
withdrawals and computer use at a library.
  Nothing in TFTA deals with delayed-notice searches, which some 
critics deride as ``sneak and peak'' searches, even though the PATRIOT 
Act only codified judicial standards that have been in place for 
decades.
  Nothing in TFTA deals with roving wiretaps, which some critics 
mischaracterize as allowing taps of the telephones of anyone who fits a 
general description. This is not true. A roving wiretap can only be 
used for a particular person, though it applies to any phone that the 
person uses.
  Nothing in TFTA deals with National Security Letters, which allow 
certain records to be subpoenaed and includes an automatic 
nondisclosure requirement.
  I happen to support the PATRIOT and believe that it should not be 
allowed to expire. Nevertheless, with this amendment, I have deferred 
that debate. This amendment does not involve the PATRIOT Act or the 
debates about it. The only way that one can object to this amendment as 
``controversial'' is if one is willing to define all antiterror 
legislation as ``controversial.'' In a post-9/11 world, with continuing 
threats to the U.S. homeland--and clear gaps in some of our antiterror 
laws--such a presumption against all antiterror legislation would be 
deeply irresponsible. Fixing obvious flaws in our laws, and giving 
antiterror investigators the tools that they need, should not be 
controversial.
  Much of TFTA is also in the House of Representatives' 9/11 Commission 
bill. Approximately half of the provisions of TFTA already have been 
included by the House of Representatives in their bill implementing the 
recommendations of the 9/11 Commission. For example, the House bill 
already contains the ``Moussaoui fix,'' which allows FISA warrants for 
lone-wolf terrorists--Section 412 of TFTA and section 2001 of H.R. 10.; 
new offenses for hoaxes relating to terrorist crimes or the deaths of 
U.S. soldiers--Section 416 of TFTA and section 2021 of H.R. 10.; 
increased penalties for obstruction of justice in terrorism 
investigations--Section 417 of TFTA and section 2023 of H.R. 10.; 
authorization to share grand-jury information with state and local 
governments--Section 423(b) of TFTA and section 2191 of H.R. 10.; 
improvements to and expansion of the material-support statute--Section 
424 of TFTA and section 2043 of H.R. 10.; a new offense targeted at 
those who receive military-type training in terrorist camps--Section 
425 of TFTA and 2042 of H.R. 10.; expansion of the weapons-of-mass-
destruction laws--Section 426 of TFTA and section 2052 of H.R. 10.; and 
new laws targeted at those who aid rogue states' nuclear 
proliferation--Section 427 of TFTA and section 2053 of H.R. 10.
  In all these respects, my amendment is substantially identical to the 
House bill. The amendment thus helps to bring the Senate bill into line 
with the House bill, lessening the need for a protracted conference and 
avoiding delay in enacting this legislation.
  TFTA directly implements a number of the key recommendations and 
addresses key concerns of the 9/11 Commission. The Report of the 
September 11 Commission recommends that Congress address a number of 
deficiencies in our nation's preparedness against a terrorist attack. 
The underlying bill that we are considering responds to many of those 
recommendations. This amendment addresses others.
  The 9/11 Commission Report recommends action to address, among other 
things, the threat posed by weapons of mass destruction and their 
proliferation; the vulnerabilities of our seaports and mass-transit 
systems; the need for improved information sharing; the need to address 
terrorist finance; the threat posed by sanctuaries where terrorists 
operate training camps; and the need for improved information sharing. 
The report also discusses the problems created by terrorist hoaxes, and 
the legal barriers encountered in the pre-September 11 investigation of 
suspected hijacker Zacarias Moussaoui.

  TFTA addresses every one of these 
9/11 Commission recommendations.
  TFTA's provisions and the matters that it address have been 
extensively reviewed in congressional hearings. Every provision of TFTA 
previously has either been introduced as a bill in the House or Senate 
or addresses a matter that has been the subject of a committee hearing. 
Collectively, the provisions of TFTA have been the subject of 9 
separate hearings before House and Senate committees and have been the 
subject of 4 separate committee reports. In addition, the entire bill 
was reviewed at a September 13 hearing before the Senate Subcommittee 
on Terrorism. At that hearing, law professor Jonathan Turley testified 
that every one of TFTA's provisions would be upheld as constitutional 
by the U.S. Supreme Court.
  TFTA primarily consists of all or part of 11 bills currently pending 
in the House and Senate. Collectively, as of July 19, 2004--the day 
that TFTA was introduced--the bills included in TFTA have been pending 
before Congress for 12 years, 10 months, and 28 days. No one can 
contend that TFTA and its provisions have been ``rushed through'' the 
Congress.
  TFTA has the support of antiterrorism experts across the ideological 
spectrum. The Justice Department, in its September 13 testimony on TFTA 
before the Terrorism Subcommittee, expressed its strong support for the 
bill. Hearing witnesses Barry Sabin--the Chief of the Criminal 
Division's Counterterrorism Section--and Dan Bryant, the Assistant 
Attorney General for the Office of Legal Policy--made clear in their 
joint written testimony the Justice Department's view that the ``Tools 
to Fight Terrorism Act of 2004 makes well-considered, urgently needed 
changes to current law, and would greatly aid law enforcement and 
intelligence officials in their common mission to prevent terrorist 
attacks and prosecute those who would do us harm. The new tools 
provided by the TFTA will prevent--terrorist--attacks and will make 
America safer.''
  At the Terrorism Subcommittee hearing on TFTA, support for the bill 
also was voiced by George Washington University law professor Jonathan 
Turley, a national-security expert who often has been critical of the 
Justice Department's conduct of the war on terror. In addition to a 
large number of academic works in the areas of national-security and 
constitutional law, Professor Turley has represented clients in a 
variety of high-profile national security cases in both criminal and 
civil courts, including espionage cases in both federal and military 
courts. In his testimony before my subcommittee, Professor Turley noted 
that he ``also [has] been a vocal critic of some of the measures taken 
after September 11th on constitutional and policy grounds.''
  This is what Professor Turley had to say about the TFTA in his 
testimony:

       The Tools to Fight Terrorism Act of 2004 . . . contains 
     many beneficial changes that will increase the ability of the 
     government to pursue terrorists while preserving necessary 
     guarantees for civil liberties.

                           *   *   *   *   *

       While we must be cautious not to legislate out of a 
     reflective impulse, September 11th exposed a number of 
     vulnerabilities and gaps in our legal and intelligence 
     systems that remain only partially addressed. This Act 
     continues to work to close those gaps and to accommodate the 
     interests of the Executive Branch in pursuing, prosecuting, 
     and (hopefully) deterring terrorists.

                           *   *   *   *   *

       The vast majority of the[] provisions [of TFTA] are matters 
     that, in my view, should receive general support as balanced 
     and necessary measures.

                           *   *   *   *   *

       TFTA should be a matter for general consensus rather than 
     division among civil libertarians and advocates of national 
     security interests. . . . [W]e need to recognize the 
     improvements in this Act and the good-faith

[[Page S10227]]

     changes that have been made by members seeking a fair balance 
     in the legislation.

  In one part of his testimony before my subcommittee, Professor Turley 
also recommended a change to a part of the bill--in order to better 
protect civil liberties. He recommended that, if the FBI is given 
subpoena authority for terrorism investigations, it also be required to 
report on the use of that authority. The amendment that I offer today 
incorporates this recommendation--it would require the FBI to report to 
Congress on the number of subpoenas that it issues pursuant to this new 
authority, and the circumstances under which those subpoenas are 
issued.
  I will next discuss the provisions of this amendment--and how they 
help to address the recommendations and concerns raised by the 9/11 
Commission, and what others have said about these provisions.
  The Moussaoui fix: The case of suspected 9/11 conspirator Zacarias 
Moussaoui is discussed extensively in the 9/11 Commission Report. 
Moussaoui, you will recall, is the Al Qaeda operative who was arrested 
by Minneapolis FBI agents several weeks before the September 11 
attacks. That summer, instructors at a Minnesota flight school became 
suspicious when Moussaoui, with little apparent knowledge of flying, 
asked to be taught to pilot a 747. The instructors contacted the 
Minneapolis office of the FBI, which immediately suspected that 
Moussaoui might be a terrorist.
  The hearings conducted by the 9/11 Commission raised some agonizing 
questions about the FBI's pursuit of Moussaoui. Commissioner Richard 
Ben-Veniste noted the possibility that the Moussaoui investigation 
could have allowed the United States to ``possibly disrupt the [9/11] 
plot.'' Commissioner Bob Kerrey even suggested that with better use of 
the information gleaned from Moussaoui, the ``conspiracy would have 
been rolled up.'' And Commissioner Jamie Gorelick followed up by asking 
whether more could have been done to allow FBI agents to ``break 
through the barriers'' to their investigation of Moussaoui.
  After the September 11 attacks, when FBI agents finally were allowed 
to search Moussaoui, they discovered information in his belongings that 
linked him to two of the actual 9/11 hijackers, and to a high-level 
organizer of the attacks who later was arrested in Pakistan.
  The 9/11 Commissioners are right to ask whether more could have been 
done to pursue this case. The problem is that, given the state of the 
law at the time, the answer to that question is probably no. In fact, 
given the state of the law today, the answer to the question still 
would be no.
  FBI agents were blocked from searching Moussaoui because an outdated 
requirement of the 1978 FISA statute. FISA sets rules for searches 
conducted for intelligence investigations. As the 9/11 Commission 
Report notes, the FBI field office was unable to obtain a FISA warrant 
for Moussaoui because it lacked information linking him to a known 
terror group. As the Report states:

       Minneapolis agents ``sought a special warrant under the 
     Foreign Intelligence Surveillance Act to [search Moussaoui]. 
     To do so, however, the FBI needed to demonstrate probable 
     cause that Moussaoui was an agent of a foreign power, a 
     demonstration that [is] . . . a statutory requirement for a 
     FISA warrant. The agent did not have sufficient information 
     to connect Moussaoui to a foreign power.

  Current law simply does not allow searches of apparent lone-wolf 
terrorists such as Zacarias Moussaoui--even if the FBI can show 
probable cause to believe that the person is involved in international 
terrorism.
  My amendment would correct this problem. Section 412 gives the FBI 
clear authority to conduct a search or surveillance under FISA when it 
has probable cause to believe that the target is engaged in or 
preparing for international terrorism. This new authority would not 
require FBI to also link the suspect to a particular terrorist group.
  It is inevitable that Islamist terrorists will try again to attack 
the United States. As agonizing as it is today to review why we did not 
prevent the September 11 attacks, imagine if it happened again. Imagine 
if another attack occurred--and another review commission found that 
critical FBI investigations again were undermined by the lack of FISA 
authority to monitor and search lone-wolf terrorists. We simply cannot 
let that happen. We must ensure that today's FBI agents are not 
hampered by the same unnecessary barriers that hurt the efforts of the 
Minneapolis agents in August of 2001.
  Process: A bill that is substantially identical to section 412 first 
was introduced in the Senate by Senator Schumer and me on June 5, 2002. 
We reintroduced the same provision in the 108th Congress. That bill--S. 
113--was unanimously reported by the Judiciary Committee in March 2003, 
and was approved by the full Senate by a vote of 90-4 in May 2003. A 
substantially identical provision also has been included in a House 
bill introduced by Chairmen Sensenbrenner and Goss--and is included in 
the House 9/11 Commission bill as section 2001. The Moussaoui fix also 
has been the subject of two hearings--one in the Senate Intelligence 
Committee on July 31, 2002, and one in the House Crime Subcommittee on 
May 18, 2004.
  Section 412 is substantially identical to section 2001 of the House 
of Representatives' 9/11 Commission bill.
  Weapons of Mass Destruction and Shoulder-Fired Antiaircraft Rockets: 
The 9/11 Commission Report notes that ``al Qaeda has tried to acquire 
or make weapons of mass destruction for at least ten years. . . . 
Preventing the proliferation of these weapons warrants a maximum 
effort.'' The Report also discusses ``Pakistan's illicit trade and 
[the] nuclear smuggling networks of Pakistani nuclear scientist A.Q. 
Khan.'' The Report recommends that the U.S. work with other nations 
``to develop laws and an international legal regime with universal 
jurisdiction to enable the capture, interdiction, and prosecution of 
such smugglers by any state in the world.''
  Sections 426 and 427 and subtitle B of my amendment all are directed 
at preventing terrorists from gaining access to weapons of mass 
destruction. Section 427 makes it a crime to participate in or provide 
material support to a nuclear-weapons program, or other weapons-of-
mass-destruction program, of a designated terrorist organization or 
state sponsor of terrorism. There would be extraterritorial 
jurisdiction for an offense under this provision. Section 426 would 
amend the federal weapons-of-mass-destruction statute to cover attacks 
on property and would broaden the bases for federal jurisdiction under 
that statute. Subtitle B is designed to deter the unlawful possession 
and use of atomic weapons, radiological dispersal devices, shoulder-
fired rockets, and the variola virus (the causative agent of smallpox).
  In his testimony about these provisions before the Terrorism 
Subcommittee, Professor Jonathan Turley had this to say:

       [Section 426, the WMD-statute provision] would close 
     current loopholes in the interest of national security and 
     does not materially affect civil liberty interests.
       [Section 427] would criminalize the participation in 
     programs involving special nuclear material, atomic weapons, 
     or weapons of mass destruction outside of the United States. 
     This new crime with extraterritorial jurisdiction is an 
     obvious response to recent threats identified by this country 
     and other allies like Pakistan. The obvious value of such a 
     law would be hard to overstate. . . . It is important for the 
     purposes of our extraterritorial enforcement efforts to have 
     a specific crime on the books to address this form of 
     misconduct.
       [With regard to subtitle B--the new shoulder-fired rockets 
     proscription], [g]iven the enormous threats to our country 
     from such weapons, these increased penalties are manifestly 
     reasonable. . . . While it is certainly possible that a 
     defendant could be in possession of a MANPADS as part of arms 
     trafficking or some other motive than terrorism, this is 
     clearly one of the most likely forms of terrorist conduct.

  Process: Sections 426 and 427 of my amendment are identical to 
sections 2052 and 2053 of the House 9/11 Commission bill. These--and 
the new penalties for possession of shoulder-fired rockets and other 
dangerous weapons--also are identical to legislation that Senator 
Cornyn introduced earlier this year.
  Mass-Transportation and Seaport Security: The 9/11 Commission Report 
recommends that the U.S. government ``identify and evaluate the 
transportation assets that need to be protected, set risk-based 
priorities for defending them, select the most practical and cost-
effective ways of doing so, and then develop a plan . . . to implement 
the effort.'' While noting the continuing threat to aviation, the 
Report

[[Page S10228]]

also emphasizes that ``[o]pportunities to do harm are as great, or 
greater, in maritime or surface transportation''--and that ``railroads 
and mass transit'' are particularly difficult to protect against 
terrorism.

  Subtitles C and D of my amendment address the unique challenges of 
providing security on mass-transportation systems and at seaports by 
updating current criminal offenses and creating new offenses that are 
tailored to these venues.
  Here is what Professor Turley had to say about the seaport-security 
provision during the hearing on TFTA:

       [Subtitle D] addresses a weakness in our domestic security 
     system that has been repeatedly criticized as perhaps the 
     country's single greatest threat: seaport security. While 
     much remains to be done in terms of real security 
     improvements at seaports, [subtitle D] represents one of the 
     most significant legal reforms in this area.

                           *   *   *   *   *

       While many of [the acts of violence proscribed by TFTA] can 
     be currently prosecuted under other laws, [subtitle D] would 
     create a tailored series of offenses affecting seaports and 
     seagoing vessels. For example, one important addition would 
     be a crime for knowingly transporting dangerous material for 
     a terrorist operation or a terrorist. This new crime in 
     Section [455] will serve to increase the expected deterrent 
     for transporters. Currently, a transporter can be prosecuted 
     as a co-conspirator as well as charged with false statements 
     in many cases. However, Section [455] would define a crime 
     specifically with this type of opportunistic conduct in mind. 
     For a prosecutor, such a tailored law makes a case more 
     compelling for a jury.

                           *   *   *   *   *

       These laws give the Executive Branch more flexibility and 
     options in dealing with misconduct at our seaports. It could 
     not be more timely or more justified given recent warnings 
     from security experts.

  Process: Subtitles C and D are identical to bills introduced this 
year by Senators Sessions and Biden, respectively. The Sessions bill 
was the subject of a hearing before the Senate Judiciary Committee on 
April 8, 2004. The Senate Subcommittee on Terrorism held a hearing on 
the need to improve security at U.S. seaports on January 27 of this 
year.
  Information Sharing: The 9/11 Commission Report recommends that 
``information procedures should provide incentives for sharing, to 
restore a better balance between security and shared knowledge.'' The 
Report also recommends that the President ``coordinate the resolution 
of the legal, policy, and technical issues across agencies to create a 
`trusted information network' ''--and that this information-sharing 
network and the FBI ``build a reciprocal relationship, in which state 
and local governments understand what information they are looking for 
and, in return, receive some of the information being developed.''
  Sections 422 and 423 of my amendment act on these recommendations by 
improving the FBI's ability to share intelligence information that has 
been obtained under existing authorities. Section 422 creates a uniform 
standard under which the FBI would disseminate intelligence information 
to other federal agencies. Under current law, several different 
statutes govern the circumstances under which the FBI may disseminate 
intelligence information to other federal agencies. Some of these 
statutes anomalously place restrictions on information sharing with 
other federal agencies that are greater than the restrictions applied 
to non-federal agencies. This section allows dissemination of 
intelligence information under uniform guidelines developed by the 
Attorney General.
  Section 423 amends current law to make clear that national-security-
related information may be shared with relevant Federal, State, and 
local officials regardless of whether the investigation that produced 
the information is characterized as a ``criminal'' investigation or a 
``national security'' investigation. This section also would authorize 
the sharing of grand-jury information with appropriate state and local 
authorities.
  I do not think one can overstate the importance of information 
sharing--of tearing down the walls that prevent different parts of the 
government from exchanging intelligence and working together in the war 
on terror.
  A graphic illustration of the importance of tearing down the legal 
walls between different terror investigators is provided by another 
pre-September 11 investigation. Like the Moussaoui case, this 
investigation also came tantalizing close to substantially disrupting 
or even stopping the 9/11 plot--and also ultimately was blocked by a 
flaw in our antiterror laws. The investigation that I am talking about 
involved Khalid Al Midhar, one of the suicide hijackers of American 
Airlines Flight 77, which was crashed into the Pentagon, killing 58 
passengers and crew and 125 people on the ground.
  An account of the investigation of Midhar is provided in the 9/11 
Commission's Staff Statement No. 10. That statement notes as follows:

       During the summer of 2001 [an FBI official] . . . found [a] 
     cable reporting that Khalid Al Mihdhar had a visa to the 
     United States. A week later she found the cable reporting 
     that Mihdhar's visa application--what was later discovered to 
     be his first application--listed New York as his destination. 
     . . . The FBI official grasped the significance of this 
     information.
       The FBI official and an FBI analyst working the case 
     promptly met with an INS representative at FBI Headquarters. 
     On August 22 INS told them that Mihdhar had entered the 
     United States on January 15, 2000, and again on July 4, 2001. 
     . . . The FBI agents decided that if Mihdhar was in the 
     United States, he should be found.

  These alert agents immediately grasped the danger that Khalid Al 
Midhar posed to the United States--and immediately initiated an effort 
to track him down. Unfortunately, at the time, the law was not on their 
side. The Joint Inquiry Report of the House and Senate Intelligence 
Committees describes what happened next:

       Even in late August 2001, when the CIA told the FBI, State, 
     INS, and Customs that Khalid al-Mihdhar, Nawaf al-Hazmi, and 
     two other ``Bin Laden-related individuals'' were in the 
     United States, FBI Headquarters refused to accede to the New 
     York field office recommendation that a criminal 
     investigation be opened, which might allow greater 
     resources to be dedicated to the search for the future 
     hijackers. . . . FBI attorneys took the position that 
     criminal investigators ``CAN NOT'' (emphasis original) be 
     involved and that criminal information discovered in the 
     intelligence case would be ``passed over the wall'' 
     according to proper procedures. An agent in the FBI's New 
     York field office responded by e-mail, saying: ``Whatever 
     has happened to this, someday someone will die and, wall 
     or not, the public will not understand why we were not 
     more effective in throwing every resource we had at 
     certain problems.''

  The 9/11 Commission staff report assesses the ultimate impact of 
these legal barriers:

       Many witnesses have suggested that even if Mihdhar had been 
     found, there was nothing the agents could have done except 
     follow him onto the planes. We believe this is incorrect. 
     Both Hazmi and Mihdhar could have been held for immigration 
     violations or as material witnesses in the Cole bombing case. 
     Investigation or interrogation of these individuals, and 
     their travel and financial activities, also may have yielded 
     evidence of connections to other participants in the 9/11 
     plot. In any case, the opportunity did not arise.

  Congress must do what it can now to make sure that something like 
this does not happen again--that arbitrary, seemingly minor 
bureaucratic barriers are not allowed to undermine our best leads 
toward uncovering an attack on the United States. Sections 422 and 423 
of my amendment would do just that.
  Process: Subsection (b) of section 423 is included in H.R. 10, the 
House of Representatives' 9/11 Commission bill. Sections 422 and 423 
both are identical to a bill that has been introduced by Senator 
Chambliss.
  Subpoena Authority: The bill that the Senate is now considering 
already authorizes subpoena authority. Section 141(f)(5) of the bill 
authorizes the National Intelligence Authority's Inspector General to 
issue subpoenas for his investigations. It also authorizes the 
Inspector to go to federal court to enforce his subpoenas if a 
recipient refuses to comply with them. Section 211(g) of the bill also 
authorizes the new Privacy and Civil Liberties Board to issue 
administrative subpoenas and to seek their judicial enforcement.
  I agree with the bill's judgment that subpoena authority can be an 
important investigative tool. For this reason, section 415 of my 
amendment authorizes the Attorney General to issue judicially 
enforceable subpoenas in an ``investigation of a Federal crime of 
terrorism.''
  Rachel Brand, the Principal Deputy Assistant Attorney General for the 
Justice Department's Office of Legal Policy, described the need for 
subpoena authority in terrorism investigations

[[Page S10229]]

in a hearing before my subcommittee on June 22 of this year. Ms. Brand 
noted:

       Although grand jury subpoenas are a sufficient tool in many 
     investigations, there are circumstances in which an 
     administrative subpoena would save precious minutes or hours 
     in a terrorism investigation. For example, the ability to use 
     an administrative subpoena will eliminate delays caused by 
     factors such as the unavailability of an Assistant United 
     States Attorney to immediately issue a grand-jury subpoena, 
     especially in rural areas; the time it takes to contact an 
     Assistant United States Attorney in the context of a time-
     sensitive investigation; the lack of a grand jury sitting at 
     the moment the documents are needed (under federal law, the 
     ``return date'' for a grand-jury subpoena must be on a day 
     the grand jury is sitting); or the absence of an empaneled 
     grand jury in the judicial district where the investigation 
     is taking place, a rare circumstance that would prevent a 
     grand-jury subpoena from being issued at all.
       To appreciate the potential importance of an administrative 
     subpoena in a terrorism case, consider the following 
     hypothetical example. On Friday afternoon, counter-terrorism 
     investigators learn that members of an al Qaeda cell have 
     purchased bomb-making materials from a chemical company. They 
     want to obtain records relating to the purchase that may 
     reveal what chemicals the terrorists bought, as well as 
     delivery records that might reveal the terrorists' location. 
     Investigators reach a prosecutor, who issues a grand jury 
     subpoena for those records. But because the grand jury is not 
     scheduled to meet again until Monday morning and the 
     recipient of a grand jury subpoena is not required to produce 
     the records until the next time the grand jury meets, 
     investigators may not be able to obtain the information for 
     three days during which time the al Qaeda cell may have 
     executed its plan. If investigators had the authority to 
     issue an administrative subpoena, they could obtain the 
     records immediately and neutralize the cell.

  A recent paper issued by the Republican Policy Committee points out 
how anomalous it is that the FBI does not have subpoena authority for 
terrorism investigations. As that report notes, ``[c]urrent provisions 
of federal law grant [administrative-subpoena] authority to most 
government departments and agencies.'' Moreover, ``[t]hese authorities 
are not restricted to high-profile agencies conducting life-or-death 
investigations.'' As the paper notes, federal law currently authorizes 
postal inspectors to issue administrative subpoenas when investigating 
any ``criminal matters related to the Postal Service and the mails.'' 
Similarly, the Small Business Administration is empowered to use 
administrative subpoenas to investigate criminal activities under the 
Small Business Act, such as embezzlement and fraud. The Bureau of 
Immigration and Customs Enforcement has administrative-subpoena 
authority for investigations of violations of the immigration laws. And 
DEA agents have subpoena authority for criminal investigations under 
the Controlled Substances Act.
  As the RPC Policy Paper concludes, ``One can hardly contend that 
federal investigators should be able to issue administrative subpoenas 
to investigate Mohammed Atta if they suspect that he broke into a 
mailbox--but should not have the same authority if they suspect he is 
plotting to fly airplanes into buildings.''
  Professor Jonathan Turley also commented on TFTA's subpoenas 
provision in his testimony before the Terrorism Subcommittee. He 
stated:

       There is little reason to believe that a [Judicially 
     Enforceable Terrorism Subpoena] provision would be 
     unconstitutional.

                           *   *   *   *   *

       Much is made [by some critics] of the shift from a grand-
     jury subpoena to a JETS system. However, the term grand-jury 
     subpoena is misleading in that it is not issued by a grand 
     jury but a federal prosecutor. ``[A] grand jury subpoena gets 
     its name from the intended use of the . . . evidence, not 
     from the source of its issuance.'' Doe v. DiGenova, 779 F.2d 
     74, 80 n.11 (D.C. Cir. 1985). Administrative subpoenas are 
     currently used in dozens of areas and they have been upheld 
     by the United States Supreme Court. It is extremely rare for 
     a federal prosecutor to deny such a request from the FBI and 
     the elimination of an Assistant United States Attorney from 
     the process is not likely to produce a significant change in 
     the level of review.

  Professor Turley also added: ``I would strongly encourage the Senate 
to couple any JETS provision with a close oversight process to monitor 
the number and nature of subpoenas issued under the new law.'' As I 
previously noted, the amendment that I offer today implements this 
recommendation: it includes a requirement that the FBI report on the 
number of subpoenas that it employs under the new authority and the 
circumstances of their issue.
  Terrorist Training Camps: The 9/11 Commission Report recommends that 
the U.S. government ``identify and prioritize actual or potential 
terrorist sanctuaries. For each, it should have a realistic strategy to 
keep possible terrorists insecure and on the run, using all elements of 
national power.'' The Report explains that such sanctuaries pose a 
threat because they provide terrorist groups with the ``opportunity and 
space to recruit, train, and select operatives''--and that the 
hospitable environment in the United States also allowed this country 
to be used for terrorist training and exercises.
  Section 425 of my amendment would make it a federal offense to 
knowingly receive military-type training from or on behalf of a 
designated foreign terrorist organization. This provision applies 
extraterritorially to U.S. nationals, permanent residents, stateless 
persons whose habitual residence is the United States, or a person who 
is brought into or found in the United States.
  The Justice Department testified in favor of this provision at the 
Terrorism Subcommittee's hearing on the TFTA. The joint statement of 
Messrs. Sabin and Bryant notes that:

       It is critical that the United States stem the flow of 
     recruits to terrorist training camps. A danger is posed to 
     the vital foreign policy interests and national security of 
     the United States whenever a person knowingly receives 
     military-type training from a designated terrorist 
     organization or persons acting on its behalf. Such an 
     individual stands ready to further the malicious intent of 
     the terrorist organization through terrorist activity that 
     threatens the security of United States nationals or the 
     national security of the United States. Moreover, a trainee's 
     mere participation in a terrorist organization's training 
     camp benefits the organization as a whole. For example, a 
     trainee's participation in group drills at a training camp 
     helps to improve both the skills of his fellow trainees and 
     the efficacy of his instructors' training methods. 
     Additionally, by attending a terrorist training camp, an 
     individual lends critical moral support to other trainees and 
     the organization as a whole, support that is essential to the 
     health and vitality of the organization.

  Professor Turley had the following to say about this provision of 
TFTA in his testimony before the Terrorism Subcommittee:

       This proposal would fill a gap in our laws revealed by 
     recent cases, like that of Jose Padilla, where citizens have 
     trained at terrorist camps. . . .  The proposed crime has 
     been narrowly tailored to require a clear knowledge element 
     as well as a reasonable definition of military-type training. 
     The United States has an obvious interest in criminalizing 
     such conduct and to deter citizens who are contemplating such 
     training. In my view, it raises no legitimate issue of free 
     association or free speech given the criminal nature of the 
     organization. Most importantly, given the use of these camps 
     to recruit and indoctrinate such citizens as Padilla and John 
     Walker Lindh, this new criminal offense is responsive to a 
     clear and present danger for the country.

  Section 425 of my amendment is identical to section 2042 of the House 
of Representatives' 9/11 Commission bill.
  Terrorist Hoaxes: The 9/11 Commission Report notes at several places 
that false information about terrorist threats influenced key events on 
September 11, 2001: possibly ``a false report of a third plane 
approaching'' influenced fire crews' decisions on the ground in New 
York City on that day, and crisis managers were forced to sort out ``a 
number of unnerving false alarms'' immediately after the attacks.
  The Justice Department also has commented on the harm caused by false 
information and terrorist hoaxes. In its testimony on the TFTA, the 
Department noted:

       Since September 11, hoaxes have seriously disrupted 
     people's lives and needlessly diverted law-enforcement and 
     emergency-services resources. In the wake of the anthrax 
     attacks in the fall of 2001, for example, a number of 
     individuals mailed unidentified white powder, intending for 
     the recipient to believe it was anthrax. Many people were 
     inconvenienced, and emergency responders were forced to waste 
     a great deal of time and effort. Similarly, in a time when 
     those in uniform are making tremendous sacrifices for the 
     country, several people have received hoax phone calls 
     reporting the death of a loved one serving in Iraq or 
     Afghanistan.

  Section 416 of my amendment is intended to reduce the flow of false 
information about terrorist or national-security-related events by 
making it a criminal offense to knowingly convey false information 
about terrorist

[[Page S10230]]

crimes or the death or injury of a U.S. soldier during war--if such 
misinformation is conveyed under circumstances where it may reasonably 
be believed.
  Professor Turley, at the Terrorism Subcommittee hearing on TFTA, 
commented that:

       This new provision would create a serious deterrent to a 
     type of misconduct that routinely places the lives of 
     emergency personnel at risk and costs millions of dollars in 
     unrecouped costs for the federal and state governments. Since 
     a terrorist seeks first and foremost to terrorize, there is 
     precious [little] difference between a hoaxster and a 
     terrorist when the former seeks to shut down a business or 
     a community with a fake threat. . . . This provision 
     responds to the increase in this form of insidious 
     misconduct and correctly defines it as criminal conduct.

  Process: A bill that is substantially identical to section 416 first 
was introduced almost three years ago by Representative Lamar Smith on 
November 11, 2001. That proposal was the subject of a hearing before 
the House Crime Subcommittee on November 7, 2001. The bill was reported 
by the House Judiciary Committee on November 29, 2001, which issued 
Report No. 107-306 for the bill. The Smith bill was then unanimously 
approved by the House of Representatives on December 12, 2001. 
Representative Smith reintroduced the bill in this Congress. The House 
Crime Subcommittee held another hearing on the proposal on July 10, 
2003, and the Judiciary Committee issued Report No. 108-505 for the new 
Smith bill. Also, Senator Hatch has introduced a version of this 
proposal in the Senate.
  Section 416 of my amendment is nearly identical to section 2022 of 
the House of Representatives' 9/11 Commission bill.
  Financial and Material Support to Terrorists: The 9/11 Commission 
Report states in its recommendations that ``vigorous efforts to track 
terrorist financing must remain front and center in U.S. 
counterterrorism efforts.''
  Subtitle E of my amendment, the ``Combating Money Laundering and 
Terrorist Financing Act,'' expands the list of predicate offenses for 
money laundering to include burglary and embezzlement, operation of an 
illegal money-transmitting business, and offenses related to alien 
smuggling, child exploitation, and obscenity that were enacted or 
amended by the Protect Act. It also amends current law to prohibit 
concealing having provided financing while knowing that it has been or 
will be provided to terrorists.
  Section 424 of my amendment expands existing prohibitions on 
providing material support to terrorist groups. This provision makes it 
a crime to provide material support to any crime of international or 
domestic terrorism, and expands federal jurisdiction over such 
offenses.
  The Justice Department emphasized the importance of the material-
support statute in its joint statement on the TFTA before the Terrorism 
Subcommittee:

       The TFTA . . . improves current law by clarifying several 
     aspects of the material support statutes. This is another key 
     tool in preventing terrorism. As the Department of Justice 
     has previously indicated, ``a key element of the Department's 
     strategy for winning the war against terrorism has been to 
     use the material support statutes to prosecute aggressively 
     those individuals who supply terrorists with the support and 
     resources they need to survive . . . . The Department seeks 
     to identify and apprehend terrorists before they can carry 
     out their plans, and the material support statutes are a 
     valuable tool for prosecutors seeking to bring charges 
     against and incapacitate terrorists before they are able to 
     cause death and destruction.''

  The 9/11 Commission Report also emphasizes the need ``to ensure 
protection of civil liberties'' during the war on terrorism. In order 
to address concerns raised by some courts and litigants about the 
chilling effect of the current material-support statute, section 424 of 
the amendment clarifies what it means to provide ``training,'' 
``personnel,'' and ``expert advice or assistance'' to a terrorist 
group.
  Professor Turley, in his Terrorism Subcommittee testimony on TFTA, 
said of section 424 that ``[t]his proposal would actually improve the 
current federal law by correcting gaps and ambiguities that have led to 
recent judicial reversals. In that sense, the proposal can be viewed as 
a slight benefit to civil liberties by removing a dangerous level of 
ambiguity in the law.''
  A provision identical to section 424 of my amendment appears in the 
House of Representatives 9/11 Commission bill as section 2043.
  Presumption of No Bail for Terrorists: Section 413 of my amendment 
would add terrorists to the category of criminal defendants for whom 
there is a presumption of no bail. Under current law, a criminal 
suspect will be denied bail in federal court if the government shows 
that there is a serious risk that the suspect will flee, obstruct 
justice, or injure or threaten a witness or juror. The judge must 
presume this showing is present if the suspect is charged with a crime 
of violence, a drug crime carrying a potential sentence of ten years or 
more, any crime that carries a potential sentence of life or the death 
penalty, or the suspect previously has been convicted of two or more 
such offenses. Section 413 would add terrorist offenses to this list--
judges would be required to presume that facts requiring a denial of 
bail are present. This is only a presumption--the terror suspect still 
could attempt to show that he is not a flight risk or potential threat 
to jurors or witnesses.
  The Justice Department testified as to the importance of this 
provision at the Terrorism Subcommittee hearing on TFTA:

       Current law provides that federal defendants who are 
     accused of serious crimes, including many drug offenses and 
     violent crimes, are presumptively denied pretrial release 
     under 18 U.S.C. Sec.  3142(e). But the law does not apply 
     this presumption to those charged with many terrorism 
     offenses. To presumptively detain suspected drug traffickers 
     and violent criminals before trial, but not suspected 
     terrorists, defies common sense.

                           *   *   *   *   *

       This omission has presented authorities real obstacles to 
     prosecuting the war on terrorism, as Michael Battle, U.S. 
     Attorney for the Western District of New York, testified 
     before this subcommittee on June 22. In the recent 
     ``Lackawanna Six'' terrorism case in his district, 
     prosecutors moved for pre-trial detention of the defendants, 
     most of whom were charged with (and ultimately pled guilty 
     to) providing material support to al Qaeda. It was expected 
     that the defendants would oppose the motion. What followed 
     was not expected, however. Because the law does not allow 
     presumptive pre-trial detention in terrorism cases, 
     prosecutors had to participate and prevail in a nearly three-
     week hearing on the issue of detention, and were forced to 
     disclose a substantial amount of their evidence against the 
     defendants prematurely, at a time when the investigation was 
     still ongoing. Moreover, the presiding magistrate judge did 
     in fact authorize the release of one defendant, who, it was 
     later learned, had lied to the FBI about the fact that he had 
     met with Osama bin Laden in Afghanistan.
       The Lackawanna Six case illustrates the real-life problems 
     the absence of presumptive pre-trial detention has posed to 
     law enforcement. But this shortcoming in the law has also 
     enabled terrorists to flee from justice altogether. For 
     example, a Hezbollah supporter was charged long ago with 
     providing material support to that terrorist organization. 
     Following his release on bail, he fled the country.

  The suspect described above eventually was recaptured by the United 
States 6 years after his escape. During that time, he was not a 
participant in a terrorist attack against the United States--but he 
could have been.
  Jonathan Turley also commented on section 413 in his testimony at the 
Terrorism Subcommittee hearing on TFTA. He stated:

       [Section 413] would create a presumption against bail for 
     accused terrorists. Under this amendment, such a presumption 
     could be rebutted by the accused, but the court would begin 
     with a presumption that the accused represents a risk of 
     flight or danger to society. This has been opposed by various 
     groups, who point to the various terrorist cases where 
     charges were dismissed or rejected, including the recent 
     Detroit scandal where prosecutorial abuse was strongly 
     condemned by the Court. I do not share the opposition to this 
     provision because I believe that, while there have been 
     abuses in the investigation and prosecution of terrorism 
     cases, the proposed change sought by the Justice Department 
     is neither unconstitutional nor unreasonable.

                           *   *   *   *   *

       This proposal would not impose a categorical denial of bail 
     but a presumption against bail in terrorism cases. Congress 
     has a clearly reasonable basis for distinguishing terrorism 
     from other crimes in such a presumption. In my view, this 
     would be clearly constitutional.
       While I have been critical of the policies of Attorney 
     General John Ashcroft, I do not share the view of some of my 
     colleagues in the civil liberties community in opposition to 
     this change. There is currently a presumption against 
     pretrial release for a variety of crimes in 18 U.S.C. Sec.  
     3142(e), including major drug crimes. It seems quite bizarre 
     to have such a presumption in drug cases but not terrorism 
     cases.

  Use of FISA in immigration proceedings: The 9/11 Commission Report

[[Page S10231]]

recommends that the United States ``combine terrorist travel 
intelligence, operations, and law enforcement in a strategy to 
intercept terrorists, find terrorist travel facilitators, and constrain 
terrorist mobility.'' The report also states that ``[t]he challenge for 
national security in an age of terrorism is to prevent the very few 
people who may pose overwhelming risks from entering or remaining in 
the United States undetected.''
  Section 419 of my amendment is designed to allow the federal 
government to more readily employ intelligence information to keep 
suspected terrorists out of the United States. The Foreign Intelligence 
Surveillance Act requires the government to provide notice when 
information obtained through FISA is used in any federal proceeding. In 
1996, Congress created an exception to this requirement for alien-
terrorist removal proceedings. This section would extend this exception 
to all immigration proceedings--the government would be able to use 
FISA information to deny an alien a particular immigration benefit, to 
bar his reentry, or to detain him on immigration charges, all without 
revealing that the information was obtained through FISA. Such 
authority would be useful because in many instances, notice that 
information was obtained through FISA would disclose to the alien that 
he or his associates have been the target of a FISA investigation--a 
disclosure that effectively would compromise an ongoing investigation.
  Professor Turley addressed this provision in his testimony before the 
Terrorism Subcommittee on the TFTA:

       This provision would change the current system in which the 
     government must notify parties in an immigration case that it 
     is using information obtained through FISA. . . .
       Section [419] was criticized recently by the American 
     Immigration Lawyers Association (AILA) group as 
     ``constitutionally dubious.'' Despite my respect for AILA and 
     its work, I must disagree with the suggestion that this 
     provision might be found unconstitutional. The government is 
     allowed to use secret evidence in such proceedings and the 
     only change here is the identification of the source of such 
     secret information. . . . This provision would, in my view, 
     pass constitutional muster.
       . . . [T]he true legal change produced by Section [419] is 
     marginal. There are good-faith reasons for the government's 
     reluctance to acknowledge an on-going FISA investigation. 
     While I oppose FISA generally, this does not appear an 
     unreasonable request from the Justice Department.

  Other provisions: lifetime post-release supervision, obstruction of 
justice, denial of benefits. In his testimony on TFTA before the 
Terrorism Subcommittee, Professor Turley also had the following to say 
about these provisions of TFTA:

       [Section 414] This provision would make terrorists eligible 
     for lifetime post-release supervision. Under the current law, 
     certain individuals convicted of terrorist crimes are not 
     eligible for lifetime post-release supervision because the 
     underlying offense did not create a foreseeable risk of death 
     or serious injury. The Justice Department has objected to the 
     current language of 18 U.S.C. Sec. 3583 as too restrictive 
     since there are many individuals who knowingly support 
     terrorist activities, but do so through less overtly violent 
     means, such as computer-related crimes. The purpose is only 
     to make such individuals eligible for lifetime supervision. 
     This proposal seems facially reasonable in light of the 
     sophisticated web of supporting co-conspirators working with 
     groups like Al-Qaeda.
       [Section 417] This provision increases the penalties for 
     obstruction of justice in terrorism cases. The Justice 
     Department believes that the increase from 5 to 10 years in 
     terrorism cases is needed to show the added severity of such 
     misconduct in this context. For the purpose of full 
     disclosure, I have represented defendants charged under false 
     statement provisions like 18 U.S.C. Sec. 1001 and I have been 
     a critic of the abusive use of false statement charges by the 
     Justice Department in non-terrorist cases. However, seeking 
     higher penalties for obstruction in the area of terrorism is 
     not an unreasonable demand and certainly would not raise any 
     immediate constitutional problems.
       [Section 421] This provision would deny federal benefits to 
     convicted terrorists. The denial of such benefits is 
     currently allowed under the Controlled Substances Act and 
     makes obvious sense given the nature of these crimes.
  In conclusion, I would simply remind my colleagues that every 
provision of TFTA has been fully explored in congressional committee 
hearings--the individual provisions of the bill have been the subject 
of nine separate hearings--and every provision of TFTA has the full 
support of the Department of Justice. These provisions address obvious 
and in some cases glaring gaps in our nation's antiterrorism safety 
net. We cannot allow these problems to continue to go unaddressed.
  I urge my colleagues to support the amendment.
  Mr. President, this is a controversial amendment. It is sometimes 
called the Tools for Terrorism Act. There are 20 specific provisions of 
this amendment. Some of them are very uncontroversial, some have become 
controversial. What I am proposing to do by laying this amendment down 
is begin a dialog with members of both the majority and the minority to 
see which of them we can agree to be adopted.
  This was the most efficient way to do that rather than independently 
offering each one seriatim. But it is my intention to work out a 
unanimous consent agreement with both sides that would result in as 
much of this amendment as possible, from my perspective, but in any 
event, as much as we can agree upon, being agreed to without any 
further debate or votes if they are not necessary.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Mr. President, I very much appreciate the cooperation of 
the Senator from Arizona. We would be happy to work with him on the 
three amendments that he has laid down.
  I do want to debate further the other amendment, his first amendment 
on privacy and civil liberties oversight. That is a key amendment, and 
I do want to engage on that. However, I know that Senator Stevens is 
under a tight timeframe for this afternoon. I would be willing to delay 
my response to the debate of the two Senators on my side of the aisle 
until after Senator Stevens has had an opportunity to lay down his 
amendments.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. LIEBERMAN. I thank the Chair. Mr. President, I join Senator 
Collins in thanking Senator Kyl and Senator Chambliss for offering the 
amendments. I thank Senator Kyl particularly for the spirit in which he 
offered--and some of the amendments we will be able to reach agreement 
on--the last amendment--the so-called tools for terrorists?
  Mr. KYL. Yes.
  Mr. LIEBERMAN. Tools to fight terrorism, as I would call it. As you 
said, parts of it are very controversial. As an individual Senator, 
probably a lot of it I would support, but I particularly appreciate the 
Senator's conclusion here because neither the Senator from Arizona nor 
I want to come into a situation where we are getting this bill's fate 
swept up in controversial amendments.
  I look forward to working with the Senator and members of both 
caucuses to pick out the parts that there is general agreement on, and 
I believe there will be a good number of those, and make the bill 
stronger and then get it moving to adoption. I thank the Chair.
  The PRESIDING OFFICER. The Senator from Alaska
  Mr. STEVENS. Mr. President, I have a series of requests for 
cosponsors of amendments that I have introduced. I ask unanimous 
consent that they be printed in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.


           Amendments Nos. 3826, 3827, 3829 and 3840, En Bloc

  Mr. STEVENS. Mr. President, I call up the four amendments at the 
desk. I ask unanimous consent that each of them be read and then set 
aside so we can go through calling up the four of them, and then I will 
make some comments about them. They are amendments Nos. 3826, 3827, 
3829 and 3840.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report.
  The legislative clerk read as follows:

       The Senator from Alaska [Mr. Stevens], for himself, Mr. 
     Warner, and Mr. Inouye, proposes an amendment numbered 3826.
       The Senator from Alaska [Mr. Stevens] proposes an amendment 
     numbered 3827.
       The Senator from Alaska [Mr. Stevens], for himself, Mr. 
     Warner, and Mr. Inouye, proposes an amendment numbered 3829.
       The Senator from Alaska [Mr. Stevens], for himself, Mr. 
     Warner, Mr. Inouye, and Mr. Burns, proposes an amendment 
     numbered 3840.

  The amendments are as follows:

[[Page S10232]]

                           amendment no. 3826

    (Purpose: To modify the duties of the Director of the National 
 Counterterrorism Center as the principal advisor to the President on 
                       counterterrorism matters)

       On page 84, beginning on line 8, strike ``joint 
     operations'' and insert ``strategic planning''.


                           amendment no. 3827

   (Purpose: To strike section 206, relating to information sharing)

       On page 130, strike line 20 and all that follows through 
     page 153, line 2.


                           amendment no. 3829

            (Purpose: To amend the effective date provision)

       On page 212, strike lines 3 through 6, and insert the 
     following:
       (a) In General.--This Act and the amendments made by this 
     Act shall take effect one year after the date of the 
     enactment of this Act, except that--
       (1) subsections (a) and (b) of section 102 (relating to the 
     establishment of the position of National Intelligence 
     Director) shall take effect 90 days after the date of the 
     enactment of this Act, and the President shall prescribe the 
     duties of the position of National Intelligence Director that 
     are to apply before subsections (d) and (e) of such section 
     take effect;
       (2) section 143 (relating to the establishment and 
     operation of the National Counterterrorism Center) shall take 
     effect 90 days after the date of the enactment of this Act, 
     and the National Counterterrorism Center shall be operated 
     without reference to its status under section 143(a) as an 
     entity within the National Intelligence Authority until the 
     National Intelligence Authority is established when section 
     101 takes effect;
       (3) section 331 and the amendments made by such section 
     shall take effect 90 days after the date of the enactment of 
     this Act; and
       (4) a provision of this Act shall take effect on any 
     earlier date that the President specifies for such provision 
     in an exercise of the authority provided in subsection (b).


                           amendment no. 3840

   (Purpose: To strike the fiscal and acquisition authorities of the 
                    National Intelligence Authority)

       On page 109, strike line 4 and all that follows through 
     page 113, line 3.
       On page 113, line 4, strike ``163.'' and insert ``162.''.
       On page 114, line 1, strike ``164.'' and insert ``163.''.


                           Amendment No. 3826

  Mr. STEVENS. Mr. President, I will address the amendment first in 
order, amendment No. 3826. This is offered to clarify the duties and 
responsibilities of the Director of the National Counterterrorism 
Center. The bill currently states that the Director of the National 
Counterterrorism Center shall serve as the principal adviser to the 
President and the national intelligence director on joint operations 
related to counterterrorism.
  This amendment strikes ``joint operations'' and inserts in lieu 
thereof ``strategic planning.'' The bill under consideration creates 
the National Counterterrorism Center to develop and unify strategy, to 
develop interagency terrorism plans, not to conduct joint operations.
  I call attention to page 83, lines 3, 9, and 10, of the committee 
print.
  In support of the bill under consideration, this amendment clarifies 
the role of the Director of the National Counterterrorism Center to 
support planning and not conduct operations.
  It is the intent of this amendment to make it perfectly clear that 
the national counterterrorism director would have no control over the 
conduct of joint operations. Having the intelligence director to report 
directly to the President would be inappropriate. Furthermore, the 
Secretary of Defense is the principal adviser to the President on 
military operations. As currently drafted, the director of the National 
Counterterrorism Center shall serve as the principal adviser to the 
President on joint operations. This is very unclear. Does it include 
military operations? Our amendment eliminates that ambiguity by 
striking ``joint operation'' and inserting ``strategic planning,'' 
which would appear to be consistent with the amendment adopted by the 
committee in the markup to change the directorate of operations to 
directorate of planning within the National Counterterrorism Center. I 
would hope that the manager of the bill would give this amendment 
serious consideration because I think it clears up a defect in the bill 
as it is presently written.


                           Amendment No. 3829

  Now I will address amendment No. 3829. This amendment would delay the 
implementation of the bill from 6 months to 1 year. I want to make it 
clear that this amendment would not delay the implementation of the 
office of the national intelligence director or the National 
Counterterrorism Center but gives the administration 6 more months to 
implement the many offices, councils, and changes in the intelligence 
community that the bill requires.
  We are facing an election. We do not know what the outcome of the 
election is, but to put the burdens of this bill in the first 6 months 
on the administration, whether it is the existing one or a new one, is 
entirely inappropriate. The first 6 months of a new Congress and the 
new year of an administration go by very quickly, and I think there is 
just too much to do with regard to budget, presentation of State of the 
Union message, so many other things, to have this implementation done 
within 6 months.
  I make this recommendation because many of the individuals I have 
spoken to in the intelligence community and those who appeared before 
our Appropriations Committee suggest that executing these changes 
should not be at an accelerated pace. Here are the important quotes 
from Dr. Kissinger.

       What I say and what I have written should be read in 
     conjunction with a joint statement that is being issued today 
     by the following group of individuals: former Senator Boren, 
     former Senator Bradley, former Secretary of Defense Carlucci, 
     former Secretary of Defense William Cohen, former Director of 
     the Central Intelligence Agency Robert Gates, former Under 
     Secretary of Defense John Hamre, former Senator Gary Hart, 
     myself, former Senator Sam Nunn, former Senator Warren 
     Rudman, and former Secretary of State George Shultz.
       It is obviously a bipartisan group, and we are concerned 
     that the reforms of the magnitude that are being talked about 
     and with the impact that they will have on the conduct of 
     intelligence and on the national security machinery should 
     not be rushed through in the last weeks of the congressional 
     session in the middle of a Presidential election campaign. 
     The consequences of this reform will inevitably produce 
     months and maybe years of turmoil as the adjustments are made 
     in the operating procedures of the national security 
     apparatus and of the intelligence machinery. That is inherent 
     to reform. But we should not have to explain in retrospect 
     why it was so necessary to come to a conclusion in the middle 
     of a Presidential election campaign. Whatever decisions are 
     made this week, we will have to deal with the immediate 
     terrorist challenge by the apparatus that now exists, as it 
     has already been reformed in the light of the experience of 
     September 11. So urgency should not trump substance.

  From Dr. John Hamre, former Deputy Secretary of Defense:

       Mr. Chairman, we are now very far along the road in this 
     debate. Unfortunately, from my perspective, the shape of this 
     debate has been driven more by political imperative than deep 
     analysis of the challenges we face in this area. We do need 
     intelligence reform, I believe. But I believe the debate to 
     date, and the proposals before the Congress, are too narrowly 
     constructed around one perceived failure of the intelligence 
     community, and that is the failure to coordinate the 
     activities of the components of the intelligence community.

  Without this extra 6 months, I feel the administration would be hard-
pressed to meet the strict requirements, recommendations, and 
guidelines this bill imposes. It does not require a delay of 6 months; 
it just gives 6 more months. If they can do it in 2 months, fine, but 
why put a 6-month deadline when the study that is involved has a 6-
month deadline? My amendment allows the President to move fast if he 
believes it is prudent but does not mandate a rush to finish.
  I urge my colleagues to support this amendment which would only work 
to help the administration to execute this mission well.


                           amendment no. 3827

  The amendment strikes line 20 on page 130 of the bill and all text 
that follows to line 2 on page 153 which relates to creation of a huge 
information sharing network. The current occupant of the Chair will be 
very interested in this amendment.
  I understand the need for this office to be created, and my amendment 
will create such an office. But, it would strike the specific 
requirements and guidelines that the national intelligence director 
would have to follow to establish a network for intelligence 
information sharing. My amendment would allow the intelligence 
community, and more importantly the national intelligence director, to 
be using the information to determine what type of network they need.

[[Page S10233]]

  During our Committee hearings, Dr. Henry Kissinger made the following 
analysis:

       Different components of the government have different 
     missions and priorities that cause them to assign different 
     levels of importance to protecting intelligence information. 
     Good management requires that, when there are contradictions 
     between using intelligence and protecting it, decisions are 
     made by established procedure. Sharing should be optimized, 
     not managed in detail. To attempt to prescribe all the 
     circumstance in bureaucratic or legalistic language would 
     involve so much detail and so many exceptions as to defeat 
     its own purpose.

  Also, sharing of this information will not be the ultimate panacea. 
ADM James Ellis, former Commander of U.S. Strategic Commander until a 
few months ago, made the following point:

       We should be wary of homogenizing centralized processes 
     that, albeit unintentionally, may suppress or filter 
     differing views. Recent op-ed pieces have noted the 
     inevitability of surprise in our past and offered as well 
     that often a surprise is a result of deficient analysis, not 
     collection or even sharing of data.

  Also, from our intelligence reform hearings, Judge Richard Posner, 
from the 7th Circuit, Court of Appeals stated the following:

       The Commission thinks the reason the bits of information 
     that might have been assembled into a mosaic spelling 9/11 
     never came together in one place is that no one person was in 
     charge of intelligence. That is not the reason. The reason, 
     or rather, the reasons are, first, that the volume of 
     information is so vast that even with the continued rapid 
     advances in data processing it cannot be collected, stored, 
     retrieved and analyzed in a single database or even network 
     of linked databases. Second, legitimate security concerns 
     limit the degree to which confidential information can safely 
     be shared, especially given the ever-present threat of moles 
     like the infamous Aldrich Ames. And third, the different 
     intelligence services and the subunits of each service tend, 
     because information is power, to hoard it. Efforts to 
     centralize the intelligence function are likely to lengthen 
     the time it takes for intelligence and analyses to reach the 
     President, reduce diversity and competition in the gathering 
     and analysis of intelligence data, limit the number of 
     threats given serious consideration and deprive the president 
     of a range of alternative interpretations of ambiguous and 
     incomplete data--and intelligence data will usually be 
     ambiguous and incomplete.

  I point out that the administration's statement, so-called SAP which 
came from the administration, says:

     the administration supports the strong information-sharing 
     authorities granted to the NID in the bill. The 
     administration is concerned that the extensive authorities 
     and responsibilities granted the Office of Management and 
     Budget to implement the information-sharing network are both 
     outside of OMB's usual responsibilities and are inconsistent 
     with the goal of ensuring an NID with effective authority to 
     manage the intelligence community. These responsibilities 
     should be granted to the NID in such a way as to remain 
     consistent with section 892 of the Homeland Security Act of 
     2002.
       The administration also believes that the detail in which 
     the legislation prescribes the network is excessive. The 
     network would be more likely to accomplish its beneficial 
     goal if the bill simply provided the authority necessary for 
     its establishment while leaving the details to be worked out 
     and altered as the circumstances require.

  I am also concerned with the very ambitious schedule that the bill 
delineates. In 90 days, just 3 months, the Director of OMB would be 
required to submit to the President and the Congress a description of 
the Network, establish a director of services and conduct a review of 
relevant current Federal agency capabilities; it would seem to me that 
we are setting the administration up to fail with such an unreasonable 
time frame.
  I am also concerned about the cost. The bill estimates this could 
cost at least $50 million dollars. Where would the funds for this 
program come from? Also, how would they influence existing programs to 
coordinate these activities? Currently there are not any funds 
designated for these activities. Would they be requested from a 
supplemental or would they be taken from the intelligence community's 
very tight budget?
  Also, I was hoping that the chairman and the ranking member could 
provide a clearer picture about the protection of civil liberties. I 
understand that the Privacy and Civil Liberties Boards will be included 
in discussions--but I worry about the extent to which--and I am quoting 
from the bill now:

     private sector data, including information from owners and 
     operators of critical infrastructure, is incorporated into 
     the Network; and that the private sector is both providing 
     and receiving information.

  This is another czar. We already have an intelligence czar. Now this 
provision in this bill creates an information czar.
  It ``requires that the national intelligence director is to set 
standards for information technology and communication.'' By the way, 
it does not say necessarily related to intelligence--across the entire 
executive branch, for every Cabinet Secretary and I presume for the 
FCC.

       The NID would also develop an integrated information 
     technology and communication network that ensures information 
     sharing across the entire executive branch again for every 
     Cabinet Secretary

and agency, as I understand it, in the Federal Government

     and with the State and local governments and the private 
     sector.

  The scope of this is beyond comprehension. How can this group, now, 
created by the OMB, assure that privacy and civil liberties will be 
ensured when there is only one person at the helm, and that person is 
selected by the OMB?
  Am I reading the bill wrong? I don't think so.

       What purposes are to be gained from a governmentwide 
     database that includes every part of the Government--Federal. 
     State, local?

  Are we dreaming up a new net? Is this a new Internet? Is this a 
government net? What is it and why should we give one person the 
authority to control communications in this manner in this bill?
  It would create the largest technological surveillance system ever 
seen in the world. I repeat that: The largest technological 
surveillance system ever seen in the world. I think it should be given 
very thoughtful analysis.
  We have to give NID time to establish what and how such information 
should be gathered, how it is to be analyzed, how it is to be stored, 
and how it is to be shared. That is to take place in 90 days. I hope 
the administration, the committee members and their staff take a look 
at this amendment. This provision is going to delay this bill, unless 
my amendment is adopted or some form of that. Again, I am ready to hear 
if we have misanalyzed this, but we have checked it with people who 
have been in the system a long time and they agree our reading is 
correct. I again refer the administration and the committee to 
amendment No. 2837. That is a significant amendment, in my opinion.


                           Amendment No. 3840

  I turn my attention to amendment No. 3840. This is an amendment 
cosponsored by Senators Warner, Inouye, and the current occupant of the 
chair, Senator Burns. It concerns the acquisition of major intelligence 
systems. The purpose of this amendment is to strike the provisions of 
the bill which transfer major decisionmaking authorities relating to 
acquisition of national security and defense systems to the national 
intelligence director.
  My concern stems from a few items, based on the language in this 
bill. It is unclear to me and to us if the national intelligence 
director would be responsible for the creation of an entire new staff 
for the acquisition of major systems or if the Department of Defense 
shall have to transfer to the NID its personnel to provide the 
manpower, expertise, and staff for these acquisition functions. If that 
is the case, then how would the Department of Defense execute its own 
oversight of its own programs? And, if the national intelligence 
directorate were to have to use its own people until they can hire new 
people, the national director would have to fall back to utilizing the 
personnel of the existing agencies, the people Congress deemed in 2004 
were the problem and not the solution.
  Until it is clear to the Secretary of Defense whether the national 
intelligence director must create a bureaucracy or parallel structure, 
it is my recommendation that we continue the current structure which 
permits the Secretary of Defense the decision authority over these 
vital programs.
  The NID should request what authority he needs. We should not give it 
all to him and then have the Secretary of Defense fight to get back 
some of the normal functions of the Department of Defense. The 
underlying bill leaves that determination now to NID to begin with.

[[Page S10234]]

  The Secretary of Defense should continue to oversee the execution of 
acquisition programs within his Department, and the agencies related to 
defense, especially those combat support agencies such as the National 
Security Agency and the National Geospatial-Intelligence Agency.
  The Congress recognized the fact that neither the National Security 
Agency nor the National Geospatial Agency currently possess capability 
to manage major acquisition programs by passing the fiscal year 2004 
National Defense Authorization Act, Public Law 108-354, which 
transferred these very responsibilities to the Department of Defense. 
We, the Senate, just transferred these authorities and responsibilities 
to the Department of Defense. What led to this transfer of acquisition 
responsibility was a series of critical mistakes regarding the ability 
to obtain and manage the acquisition of major systems. Some of these 
mistakes wound up costing the taxpayers close to $1 billion. This is 
not something we should experiment with, especially with new, untested 
leadership or personnel.
  I repeat, we just changed this this year. We moved it over to prevent 
the further loss of money and now the committee suggests it should be 
changed again and now put under a new director who has no experience 
and no background in acquisition at all.
  The administration has taken a policy in that statement, indicating 
they believe the committee's provision relating to the NID's role in 
acquisition of major systems needs further study to ensure that the 
requirements of major consumers are met.
  They understand this transfer is premature. It may be the Congress 
should reverse itself now and move this acquisition authority back to 
the NID. But let's let the NID get up and running. Let's find out 
whether we have confidence in that system before we take it away from 
the Department of Defense, when we just took it away from the 
Intelligence Committee because of the failures of the past.
  Finally, the language currently in the bill would only cover the 
Department of Defense programs and not the programs in the National 
Intelligence Program, and that is where the problems lie.
  I urge the Senate not to act in haste where such large amounts of 
funds are currently in play. They currently have a considerable amount 
of money we have already put up for these acquisitions. The Senate 
should not break a system that is now working well since this transfer 
earlier this year, nor put up obstacles to our obtaining major 
acquisition systems necessary for national security as quickly as 
possible.
  Again, I urge members of the committee to take a look at that.


                           Amendment No. 3882

  Mr. President, have I called up amendment No. 3882? If not, I do wish 
it to be called up at this time. I ask all other amendments be set 
aside and this be called up, amendment No. 3882.
  The PRESIDING OFFICER. Without objection, the clerk will report 
amendment No. 3882.
  The assistant legislative clerk read as follows:

       The Senator from Alaska [Mr. Stevens] proposes an amendment 
     numbered 3882.

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


                           amendment no. 3882

   (Purpose: To propose an alternative section 141, relating to the 
       Inspector General of the National Intelligence Authority)

       On page 60, strike line 5 and all that follows through page 
     77, line 18, and insert the following:

     SEC. 141. INSPECTOR GENERAL OF THE NATIONAL INTELLIGENCE 
                   AUTHORITY.

       (a) Office of Inspector General of National Intelligence 
     Authority.--There is within the National Intelligence 
     Authority an Office of the Inspector General of the National 
     Intelligence Authority.
       (b) Purpose.--The purpose of the Office of the Inspector 
     General of the National Intelligence Authority is to--
       (1) create an objective and effective office, appropriately 
     accountable to Congress, to initiate and conduct 
     independently investigations, inspections, and audits 
     relating to--
       (A) the programs and operations of the National 
     Intelligence Authority;
       (B) the relationships among the elements of the 
     intelligence community within the National Intelligence 
     Program; and
       (C) the relationships between the elements of the 
     intelligence community within the National Intelligence 
     Program and the other elements of the intelligence community;
       (2) recommend policies designed--
       (A) to promote economy, efficiency, and effectiveness in 
     the administration of such programs and operations, and in 
     such relationships; and
       (B) to prevent and detect fraud and abuse in such programs, 
     operations, and relationships;
       (3) provide a means for keeping the National Intelligence 
     Director fully and currently informed about--
       (A) problems and deficiencies relating to the 
     administration of such programs and operations, and to such 
     relationships; and
       (B) the necessity for, and the progress of, corrective 
     actions; and
       (4) in the manner prescribed by this section, ensure that 
     the congressional intelligence committees are kept similarly 
     informed of--
       (A) significant problems and deficiencies relating to the 
     administration of such programs and operations, and to such 
     relationships; and
       (B) the necessity for, and the progress of, corrective 
     actions.
       (c) Inspector General of National Intelligence Authority.--
     (1) There is an Inspector General of the National 
     Intelligence Authority, who shall be the head of the Office 
     of the Inspector General of the National Intelligence 
     Authority, who shall be appointed by the President, by and 
     with the advice and consent of the Senate.
       (2) Any individual nominated for appointment as Inspector 
     General of the National Intelligence Authority shall have 
     significant prior experience in the fields of intelligence 
     and national security.
       (d) Duties and Responsibilities.--(1) The Inspector General 
     of the National Intelligence Authority shall have the duties 
     and responsibilities set forth in applicable provisions of 
     the Inspector General Act of 1978 (5 U.S.C. App.).
       (2) In addition to the duties and responsibilities provided 
     for in paragraph (1), the Inspector General shall--
       (1) provide policy direction for, and plan, conduct, 
     supervise, and coordinate independently, the investigations, 
     inspections, and audits relating to the programs and 
     operations of the National Intelligence Authority, the 
     relationships among the elements of the intelligence 
     community within the National Intelligence Program, and the 
     relationships between the elements of the intelligence 
     community within the National Intelligence Program and the 
     other elements of the intelligence community to ensure they 
     are conducted efficiently and in accordance with applicable 
     law and regulations;
       (2) keep the National Intelligence Director fully and 
     currently informed concerning violations of law and 
     regulations, violations of civil liberties and privacy, and 
     fraud and other serious problems, abuses, and deficiencies 
     that may occur in such programs and operations, and in such 
     relationships, and to report the progress made in 
     implementing corrective action;
       (3) take due regard for the protection of intelligence 
     sources and methods in the preparation of all reports issued 
     by the Inspector General, and, to the extent consistent with 
     the purpose and objective of such reports, take such measures 
     as may be appropriate to minimize the disclosure of 
     intelligence sources and methods described in such reports; 
     and
       (4) in the execution of the duties and responsibilities 
     under this section, comply with generally accepted government 
     auditing standards.
       (e) Amendments to Inspector General Act of 1978.--(1) The 
     Inspector General Act of 1978 (5 U.S.C. App.) is amended--
       (A) by redesignating section 8J as section 8K; and
       (B) by inserting after section 8I the following new 
     section:


  ``special provisions concerning the national intelligence authority

       ``Sec. 8J. (a) Notwithstanding the last 2 sentences of 
     section 3(a), the Inspector General of the National 
     Intelligence Authority shall be under the authority, 
     direction, and control of the National Intelligence Director 
     with respect to audits or investigations, or the issuance of 
     subpoenas, which require access to information concerning 
     intelligence or counterintelligence matters the disclosure of 
     which would constitute a serious threat to national security. 
     With respect to such information, the Director may prohibit 
     the Inspector General from initiating, carrying out, or 
     completing any investigation, inspection, or audit if the 
     Director determines that such prohibition is necessary to 
     preserve the vital national security interests of the United 
     States.
       ``(b) If the National Intelligence Director exercises the 
     authority under subsection (a), the Director shall submit to 
     the congressional intelligence committees an appropriately 
     classified statement of the reasons for the exercise of such 
     authority within seven days.
       ``(c) The National Intelligence Director shall advise the 
     Inspector General of the National Intelligence Authority at 
     the time a report under subsection (a) is submitted, and, to 
     the extent consistent with the protection of intelligence 
     sources and methods, provide the Inspector General with a 
     copy of such report.

[[Page S10235]]

       ``(d) The Inspector General of the National Intelligence 
     Authority may submit to the congressional intelligence 
     committees any comments on a report of which the Inspector 
     General has notice under subsection (c) that the Inspector 
     General considers appropriate.
       ``(e) In this section, the term `congressional intelligence 
     committees' means--
       ``(1) the Select Committee on Intelligence of the Senate; 
     and
       ``(2) the Permanent Select Committee on Intelligence of the 
     House of Representatives.''.
       (2) Section 8H(a)(1)(A) of that Act is amended by inserting 
     ``National Intelligence Authority,'' before ``Defense 
     Intelligence Agency''.
       (3) Section 11 of that Act is amended--
       (1) in paragraph (1), by inserting ``the National 
     Intelligence Director;'' after ``the Office of Personnel 
     Management;''; and
       (2) in paragraph (2), by inserting ``the National 
     Intelligence Authority,'' after ``the Office of Personnel 
     Management,''.

  Mr. STEVENS. Mr. President, this is the final amendment I would call 
up now. Again, I apologize for the way it is brought forward. The time 
factors involved are very narrow, I know. I do want to say, 
parenthetically, again, one paper said I shouted at the chairman 
yesterday. I certainly hope I did not shout at the chairman of the 
committee. Having formerly been the chairman--and Senator Lieberman 
also has been the chairman--I know the vast diversity of this committee 
and the difficulty we have had bringing this bill to the floor. I think 
they have done an extremely fine job under the circumstances we have. I 
don't know why we are being pressured as we are, but the decision has 
been made to get this bill out, and so we share the leadership position 
to accomplish that goal.
  But I am worried, as I told the managers personally, that some of the 
in-depth study others of us have given to this bill is not being 
listened to. The problem will be not in having the bill passed; the 
problem will be in having the bill implemented if some of these 
amendments are not adopted. The timeframes in particular worry me 
greatly, the timeframes within this process. This is worse than 
establishing a new department, really. This is a control mechanism over 
a system that abhors control. It is hard to control. If we do it wrong, 
we are going to bust this system. We are going to destroy the morale. 
As I said the other day, it takes a minimum of 5 years to get an agent 
in the field, and it will take another 5 years before that agent can 
actively recruit people and deal with the nationals and really help 
control the national assets we need for our security. The people we 
have in the field right now really started out around 1994 or 1995. 
They are out there. If we disturb their morale so they decide to pursue 
other courses, positions, or other goals, this Government is going to 
be left literally exposed. All of these people are extremely capable 
people. I have never encountered the intelligence quotient in any other 
area in our Government that I have run into in the intelligence field. 
They are high-strung people. They are people whose morale is absolutely 
essential.

  I urge the Senate to consider the morale of the people in the system 
now and those who will be coming into the system as we moved forward. 
Do not set timeframes such that it is designed for failure. Give them 
time. The system is working now. I have said that time and again. I 
don't think most people know how much change has occurred in the 
intelligence community since 9/11. It is working. The fact that we 
haven't had another 9/11 shows that it is working. I hope we will be 
careful.
  I want to talk about this one amendment.
  Mr. WARNER. Mr. President, will the Senator yield for 1 minute? I 
associate myself with his remarks about how we are going about this. We 
have made enormous progress since the 1991 operation in Iraq, as the 
Senator well knows, particularly in the tactical level and in military 
intelligence. I am hopeful that in this haste, we do not 
unintentionally go back from the progress we have made so far.
  Mr. STEVENS. I thank the Senator. We made progress in a lot of areas 
outside of Iraq. I am in contact now with people in the Philippines. We 
have problems. We have problems in Indonesia. We have problems 
throughout the area. We have problems with all of these drugs from 
Afghanistan. This is a complex world. When we visited with the station 
chiefs throughout the world recently, they all said the same thing. 
Ours is a very difficult problem. It is hard to figure out our 
priorities right now. They are going to have to wait until NID gives 
them their priorities. How long must they wait?
  My amendment suggests an alternative to the inspector general of the 
National Intelligence Authority as proposed in this bill.
  This is amendment No. 3882.
  Under the committee bill, the inspector general would have the 
authority to provide policy direction on interagency relationships 
without consulting with the department heads of the affected agencies.
  I see you shaking your head. You had better read the bill if you 
disagree. I don't like to see that from staff, anyway. If you are going 
to shake your head, move.
  I think this is a situation where we have been through the creation 
of inspectors general on the Governmental Affairs Committee. People 
ought to look at what is being done under this bill. This is the only 
inspector general I know that would have the authority and direction to 
provide policy direction on interagency relationships without 
consulting with the department heads of the affected agencies.
  Here is an inspector general of the intelligence community from NID. 
He has the authority to interrogate people in other agencies to find 
out interagency relationships of his agency with these other agencies 
without consulting the heads of the other agencies. Nothing indicates 
they are even going to consult the inspectors general of those 
agencies.

  There are inspectors general of every agency covered by this bill. 
That would give the inspector general of the NIA unprecedented 
authority over appointed officials of other independent agencies and 
departments. I don't know why the inspector general of the NIA should 
have unprecedented powers that no other inspector general has.
  I raised this question before and I was told that was not the case. 
When I raised the question, I was told on the floor earlier that the 
inspector general has the same authority as the inspectors general. I 
challenged that. And this amendment would bring that bill back into the 
situation where I was told it was, and that is the inspectors general 
have the same authority as any other inspector general. They would 
still have the authority to audit programs and operations of the 
national intelligence authority. They shall have the authority to 
investigate interagency relationships if they wanted to among the 
elements of the intelligence community both within and outside the 
national intelligence program, but the inspector general of the 
National Intelligence Authority will not direct the policy of other 
independent agencies or any other agency. As a matter of fact, IGs 
should not direct anything. They should make findings and report their 
findings to the head of the agency.
  My amendment is based on existing law that has proven successful in 
ensuring that the authority of inspectors general of the intelligence 
community does not infringe upon independent inspectors general of 
other agencies.
  I urge the Senate to take a look at this. To have anyone authorized 
to investigate interagency relationships? How are you going to get 
along with your colleagues in the other group? Inspectors general 
should look for performance or for honesty and integrity, to examine 
the operations and report. But to report on interagency relationships 
involving other departments and agencies that are not under his control 
and are under the control of other inspectors general, that is really 
going too far. I will say this categorically: If that provision is not 
changed, I will vote against this bill. I have lived with inspectors 
general now too long, and that goes too far. I will not vote for this 
bill unless it is altered.
  Ms. COLLINS. Mr. President, I know the Senator from Alaska is on a 
tight timeline this afternoon. I am not going to respond in depth to 
the amendments he put forward.
  Let me say to the Senator from Alaska that on some of his amendments 
he has raised very valid concerns, and I would like the opportunity to 
work with him to try to resolve some of the issues. For example, some 
of the implementation date issues I believe we might be able to work 
through. The

[[Page S10236]]

clarifying language on the counterterrorism center parallels the 
changes we made in committee, and we may well be able to come up with 
something on that.
  I appreciate the Senator's concerns and his desire to make sure that 
the language is clear and accurate throughout the bill. While obviously 
we have some fundamental disagreements on the underlying legislation, 
nevertheless I believe that some things in his amendments are 
beneficial in the bill, if we are able to resolve some language. I want 
to pledge to him my appreciation for his effort and my willingness to 
work with him on some of those issues.
  Mr. STEVENS. Mr. President, I apologize, I do have to go. I want the 
Record to show my support for Senator Byrd's amendment No. 3845, which 
a few of us have endorsed. I hope we can negotiate some of that because 
that covers, as the distinguished senior Member of this body has said, 
the relationship that many of us have had with this process for a long 
time. I hope we will have a chance to work it out.
  Mr. LIEBERMAN. I thank Senator from Alaska. I thank him for the 
promise he has made and for the suggestions he has offered. There are 
some matters on which we have big disagreements. There are others on 
which we clearly do not. We have made some suggestions today that we 
can work out over the weekend which will improve the bill.
  Most of all, I want the Senator from Alaska to know that we always 
listen to him whether he shouts or not.
  Mr. STEVENS. Shout doesn't count. Sometimes I am loud. I apologize.
  Mr. LIEBERMAN. Have a good weekend.
  Mr. STEVENS. Mr. President, if the Senator will yield, Senator Byrd 
and I have asked and urged all chairmen and ranking members of the 
appropriations subcommittees to start conferencing the substance of 
their bills with the House.
  We need to resolve our differences now, before the recess next week, 
if possible. We have a short period of time when we come back. The 
continuing resolution will expire November 20.
  I conferred with the chairman of the House Appropriations Committee, 
Chairman Bill Young. He agrees that something needs to be done while we 
are gone. I don't know if it is possible, but I hope the Senate and 
House staff will do their best to work with the chairmen and ranking 
members of the subcommittees on their recommendations and make sure we 
have them available when we come back on November 16. There will be no 
time to do such preliminary conferencing when we get back.
  At best, we will have 5 days to get something out of conference and 
resolve the issues and pass a conference report of some kind to deal 
with as many bills as we can handle. That is a tall order.
  I thank my friend, Senator Byrd, ranking member, former chairman of 
our committee. We are working together with the objectives of trying to 
finish these bills this year. When the two chairmen retire from the 
House and the Senate Appropriations Committee, with us will go our 
staffs. If the next chairman of the House and Senate Appropriations 
Committee has to continue the work that we should accomplish this year, 
it is going to take months this time because the trained staff, the 
people who know the subject, will not be there. We move on to other 
subjects.
  Congress must get these appropriations bills done this year.
  The PRESIDING OFFICER. The Senator from Maine.


                           Amendment No. 3849

  Ms. COLLINS. I call for the regular order with respect to the Corzine 
amendment numbered 3849.
  The PRESIDING OFFICER. The amendment is pending.


                Amendment No. 3946 to Amendment No. 3849

              (Purpose: To provide a complete substitute)

  Ms. COLLINS. Mr. President, I send a second-degree amendment to the 
desk on behalf of Senator Inhofe.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Maine, [Ms. Collins], for Mr. Inhofe, 
     proposes an amendment numbered 3946 to amendment No. 3849.

  (The amendment is printed in today's Record under ``Text of 
Amendments.'')
  Ms. COLLINS. Mr. President, I ask unanimous consent that the pending 
amendments be set aside so that other amendments can be considered.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. COLLINS. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Kyl). Without objection, it is so ordered.
  Mr. SESSIONS. Mr. President, I thank Senator Collins and Senator 
Lieberman for their hard work on this bill.
  I called one of my Democratic colleagues who has been around this 
body for a long time. I didn't know whether it was a good bill; he said 
he didn't either. It certainly has good intent. I certainly believe 
that improving our intelligence is of important national interest.
  I want to be supportive of this bill, but I do think it is important 
that we keep an eye on it because we have learned in the past that 
bills with language that may sound good at the moment, may not be what 
is best for the country. We may find out that very language, that one 
sentence or what have you, can be the very language that undermines the 
ability of our intelligence community to be effective in protecting the 
interests of the United States.
  I certainly believe we need to do everything we can to create an 
effective joint national intelligence effort. Unfortunately, I am 
afraid there are things in this bill that, indeed, may pervert the very 
purpose of the legislation; that will handicap the intelligence 
community rather than assist it.
  The language would prevent the national intelligence director from 
having the very capabilities that allow unhindered and meaningful 
intelligence collection and analysis.
  The bill establishes four new offices, additional new privacy and 
civil liberty officers within each agency, and it creates a new civil 
liberties board, all with management authority.
  If this was the kind of language we could work with, I would be 
supportive, but I am afraid the way this language has been put together 
could create bottlenecks and could undermine our ability to be 
effective. If so, I have a problem with it. I certainly don't want to 
have a problem with a bill initiating such important reform, but I do.
  September 11 did not happen because there was too little bureaucracy. 
It did not happen because the intelligence community needed more 
offices and boards, more monitoring personnel, more supervision and 
more second-guessing. In fact, the problems happened--many of them--
because the intelligence community found it difficult to work through 
the maze of bureaucracies that already exist in what we have today.
  Adding more to this bureaucracy only serves to exacerbate 
intelligence-gathering problems, not help them. Proliferation of 
government panels, boards, agencies, and ombudsman is not the answer.
  There are six sections of the bill, including four offices, a board, 
and still more additional officers, all tasked with the same 
bureaucratic management responsibility: No, 1, section 126, officer for 
civil rights and civil liberties of the national intelligence 
authority; No. 2, section 127, privacy officer of the national 
intelligence authority; No. 3, under section 141, the inspector general 
of the national intelligence authority; No. 4, ombudsman of the 
national intelligence authority; No. 5, section 211, the privacy and 
civil liberties oversight board; and under section 212, the privacy and 
civil liberties officers.
  That is quite a bit of bureaucracy, and I know the Presiding Officer 
is concerned.

  We have four new offices added to the national intelligence 
authority, a board added to the Executive Office of the President, and 
additional officers added to the various offices within the 
intelligence agency, all virtually with

[[Page S10237]]

unrestrained management responsibilities.
  I don't believe this is what the 9/11 Commission had in mind. In 
fact, the 
9/11 Commission uses the words ``privacy'', ``civil rights'', and 
``civil liberties'' 23 times in the 567-page document. We have marked 
with blue tabs the references to these terms. The Commission was 
concerned about it and wanted to make sure we had the right provisions 
to deal with it. They confronted that issue and dealt with it 
seriously, mentioning it 23 times.
  How about the legislation before the Senate today? How about the 
legislation we now have under Collins-Lieberman? It has fewer pages, 
only 213. Yet it has 126 such references to the terms. Members can see 
the red marks I put on there. They are the marks that show references 
to these issues. The whole report is chock full of detail on this.
  Of course, we know what our problems were with intelligence. We did 
not have enough linguists. We did not focus enough on human 
intelligence. We had too much bureaucracy because of the wall between 
CIA and FBI intelligence that was thought being shared around the 
world. Those are the real problems, not how much oversight we might 
create and make it even more difficult for our agents to function 
without fear that somebody will second-guess whatever they might do in 
areas of the world where their very lives could be at stake and, 
indeed, are at stake.
  The legislation before the Senate mentions the terms six times as 
much as the 9/11 Commission. The 9/11 Commission recommended a single--
one--civil liberties oversight board. It certainly did not recommend 
numerous layers of bureaucracy throughout the intelligence community. 
These, I am afraid, would undermine or distract our ability to protect 
our security in this country.
  I think one of our fears with regard to intelligence and national 
security, as Senator Kyl has so eloquently mentioned, is timidity, a 
concern that our agents around the world, who are working to find those 
people who want to do us harm before they actually do us harm, identify 
them, could make a mistake resulting in criticism and punishment. 
Timidity can be damaging to our work. That is the problem I am 
concerned about. We need to create a system that promotes courage, 
innovation, and creativity on the part of our agents.
  When somebody does something new and creative, occasionally things do 
not turn out the way you would like. Certainly in the intelligence 
field, that is so. I used to be a Federal prosecutor. We would use 
undercover operatives, and we would do things, such as put recorders on 
them. All kinds of things could happen, and sometimes things went 
astray. But, you want to encourage agents to try to do the kinds of 
operations that work, not want them in fear that somebody is looking 
over their shoulder every time they do something that might blow up and 
then their career would be ruined. I feel strongly about this issue. I 
hope we can focus on it more clearly.
  If you look through the offices that would be created in this bill, 
they are duplicative and have many problems with them. For example, the 
officer for civil rights and civil liberties, in section 126 of the 
bill, is tasked with assisting the national intelligence director in 
ensuring that the protection of civil rights and civil liberties is 
appropriately incorporated in the policies and procedures under the 
national intelligence authority.
  This official is also given oversight authority and can ``review, 
investigate, and assess complaints and other information indicating 
possible abuses of civil rights and civil liberties'' in the 
administration of and relationships among the National Intelligence 
Authority, unless the NIA's Inspector General determines that the IG 
can better review the matter--basically, they have to take over the 
matter.
  Here the officer is given powerful authority to conduct as many 
investigations into any area of the NIA as the officer chooses, all 
without having to get the agreement or approval of anyone. Only the IG, 
the Inspector General, could intervene, and then basically only to take 
over the investigation. So this section provides for a powerful officer 
who could prove to be disruptive to the goals of the NID.
  While protecting and defending civil liberties is an important factor 
for our Nation, granting an officer free, unfettered, and unchecked 
authority to tie up intelligence operations and analysis through 
investigations is not the goal of intelligence reform, or the intention 
of the 9/11 Commission.
  The Inspector General, is checked ``from initiating, carrying out, or 
completing any investigation, inspection, or audit if the Director 
determines that such prohibition is necessary to protect vital national 
security interests of the United States.'' The Inspector General is 
constrained by the national security interests of the United States, 
but not this new officer for Civil Rights and Liberties. That officer 
should be subject to similar constraints.
  Secondly, there is a privacy officer provided for in section 127. 
That officer is tasked with coordinating with the officer of civil 
rights and civil responsibilities to ensure that privacy policies are 
upheld. This person will conduct ``privacy impact assessments when 
appropriate or as required by law.'' Once again, the bill grants 
unrestrained access and power to a person to check up on the national 
intelligence director and the intelligence community. This superfluous 
management could be a handicap to our intelligence-gathering 
activities. It is something I am concerned about.
  We also have in this bill an Inspector General for the NIA, an 
ombudsman, the board mentioned in section 211, and the officers 
mentioned in section 212. The Inspectors General of the CIA and the 
Defense Department are made duplicative officers to the IG in Section 
141. And it can have the effect of not only creating excess officers 
and expense, but also creating competition and undermining the 
initiative of the agency in question.

  We want to be sure that civil rights and civil liberties are 
protected. We want to be sure that American citizens are protected, not 
only their civil liberties, which we absolutely intend to protect, but 
we want to protect their lives, their health, and their families from 
people who do not share our values and have the goal to destroy us.
  While I believe we can defend America with a high degree of fidelity 
to the liberties and freedoms we cherish, I also know one of the 
biggest problems we have had is the timidity and the restraint that 
people feel who work in our intelligence community.
  For example, I see Senator Kyl is the Presiding Officer. He, for 
years, recognized the terrible impact on the intelligence-gathering 
process that resulted from legislation--well intentioned--that 
constrained the ability of CIA agents and other agents of this United 
States from dealing with a person who had a criminal record. These 
agents were prohibited from dealing with these disreputable people. 
Well, many of the people who have the critical, life or death 
information may have a reputation or conviction in some country around 
the world of doing bad things. We know, after hearings, and after much 
debate on this floor, Senator Kyl eventually got that reversed. But it 
was late. We lost a lot.
  The real problem with that constraint on intelligence gathering was 
that agents themselves said: ``OK, they don't want me to do this. I am 
not going to do it. I am not going to take a chance. I am not going to 
deal with somebody who might have a criminal record because it may come 
back to haunt me, and they will haul me before the Church Committee or 
some other such committee and embarrass me and my family and undermine 
my career and record in this agency. I am not going to take a chance.''
  That is what we know happened. It was not a good thing. We fixed 
that, just as we fixed the wall between the FBI and CIA. These laws 
sounded like a good idea at the time to those who passed them. And, I 
am not saying people were not sincere about it. But the net result was, 
we created timidity, pockets of information, and stovepipes, that did 
not share information between one another. As a result, there may have 
been a possibility, had that not been in existence, that we could have 
protected better the lives and fortunes of American citizens.
  I thank Chairman Collins and Senator Lieberman and the people who 
have worked on this. I believe we do need to strengthen our 
intelligence

[[Page S10238]]

community, but there are a number of things in this legislation that 
cause me great concern. We need to be realistic, to work in a way that 
protects the great traditions of freedom and liberty in this country, 
but also protects the lives and safety of our families and our 
communities.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Mr. President, I appreciate the Senators from Arizona 
and Alabama bringing forward their amendments today, but I have a 
number of concerns about them.
  The proposed amendments strike an officer for civil rights and civil 
liberties and a privacy officer for the new national intelligence 
authority. The amendment also strikes provisions requiring that a 
senior official be designated in certain departments and agencies who 
would be responsible for privacy and civil liberties issues. And 
finally, the amendment changes the authority of the privacy and civil 
liberties oversight board by removing its subpoena authority. I 
particularly want to address that last point, because I think there is 
a misunderstanding on the extent of the subpoena authority and to whom 
it applies.
  In the wake of the terrorist attacks on September 11, during his 
joint address to the Congress, the President called on all Americans 
to:

     . . . uphold the values of America and remember why so many 
     have come here. We're in a fight for our principles and our 
     first responsibility is to live by them.

  Similarly, the 9/11 Commission concluded in its report that we must 
find ways of reconciling security with liberty since the success of one 
helps protect the other. The choice between security and liberty is a 
false choice, as nothing is more likely to endanger America's liberties 
than the success of a terrorist attack at home.
  The Commission went on to state that while protecting our homeland, 
Americans should be mindful of the threats to vital personal and civil 
liberties. The shift of power and authority to the Government calls for 
an enhanced system of checks and balances to protect the precious 
liberties that are vital to our way of life.
  In response to these concerns, the Commission recommended that at 
this time of increased and consolidated Government authority, there 
should be a board within the executive branch to oversee adherence to 
the guidelines the Commission recommends and the commitment of our 
Government to protect civil liberties.
  To respond to these recommendations and the concerns that we fight 
this war against terrorism without sacrificing the values that define 
us as Americans, S. 2845 establishes the two officers, one for civil 
rights and one for privacy, to assist the national intelligence 
director on issues that may affect civil liberties and privacy. These 
officials are modeled after those created by Congress for the 
Department of Homeland Security. There is both a civil liberties 
officer and a privacy officer. The creation of similar officers within 
the Department of Homeland Security is a good example of how these 
officers can assist the Department in considering relevant issues 
without compromising our efforts to protect the homeland.
  The Department has found that having those two officials has helped 
them strike the right balance as they pursue new policies. The 
Department has found that the work of these officials at DHS has not 
hindered its implementation of programs and activities but, rather, has 
improved them. By providing advice and counsel as policies and programs 
are being developed, they help the Department address privacy and civil 
liberties concerns at the front end and minimize the possibility of 
having to respond to real problems after a policy or program that 
didn't take into account privacy implications or civil liberties 
implications has already been put into place.

  I would have been more sympathetic to the amendment if the Senators 
had made the argument that perhaps in this much smaller unit those two 
officials could be combined into one position so that we could have one 
official for both privacy and civil liberties. That might be a possible 
compromise. It is one about which I would have to talk with the other 
sponsor of the bill. But that might be a way to respond to a concern 
that I know the Presiding Officer has about excessive positions or 
bureaucracies.
  I want to speak particularly to the subpoena issue. The subpoena 
power provided in this bill to the civil liberties board applies only 
to persons other than departments, agencies, and elements of the 
executive branch. I want to repeat that. While the bill does authorize 
the board to have access to executive department and agency materials 
and personnel, where appropriate, there is no subpoena power. There is 
no enforcement mechanism in the bill. That leaves compliance in the 
hands of the relevant department or agency head. The subpoena power 
only applies to outside entities, not to Government agencies or 
officials.
  So the provisions of this subpoena authority do not allow the 
scenario brought forth by some of the sponsors of this amendment in 
which they raise the specter of the civil liberties board being able to 
subpoena a CIA case officer. That is not allowed under this bill.
  Moreover, the subpoena authority in this bill is narrower, much more 
circumscribed, than the authority that is given to inspectors general 
throughout the Federal Government who do have the ability to subpoena 
documents and individuals for information within the Federal 
Government. I wanted to correct that misunderstanding on the subpoena 
power.
  We have a responsibility, as we continue to improve our capacity to 
fight terrorism--the all-important battle that our Nation faces--to 
uphold and protect the very liberties and freedom on which this Nation 
was founded and for which we are fighting today. We need to make sure 
that as we strengthen the power of Government, we do not infringe upon 
the civil liberties and the privacy of law-abiding Americans. I believe 
the provisions in this bill help to strike the right balance.
  Let me complete my remarks on this issue by pointing out that the 9/
11 Commission has endorsed the board created by this bill. I know the 
Senator from Alabama has suggested a different version of a civil 
liberties board.
  In testimony before the House Government Reform Committee, two of our 
commissioners--and I would note it was bipartisan; it was a Republican 
commissioner and a Democratic commissioner--said:

       A civil liberties board of the kind we recommend can be 
     found in the Collins-Lieberman bill in the Senate.

  I thank the Chair.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. LIEBERMAN. Mr. President, I thank my friend, the Chair, and the 
Senator from Alabama for introducing these amendments.
  I understand their concerns very well. They have raised some 
reasonable and direct questions. I want to attempt at this moment to 
try to reassure them, which is to say there is nothing in this 
underlying bill intended to, or that I can see, restrict the capacity 
or the mobility of people working in our intelligence community to 
operate to protect us. The board that is created is intended to, as I 
see it, do a broad review of policies before policies are ordered or 
issued, to consult with the policymakers, and afterward to do a review. 
I don't think there is any basis for feeling that if somebody felt 
their liberties were violated by a particular action of a particular 
agency or intelligence person or officer, they could appeal to this 
board. So the intent is not to second-guess or create a place where 
there can be second-guessing of individual cases, individual decisions. 
Therefore, to avoid what the Senator from Alabama and the Senator from 
Arizona, I think quite understandably, worry about, a climate of risk 
aversion--you don't want that to happen--you want these people to be 
aggressive, fearless, and not risk averse.
  As a matter of fact, all of the discussion we have had in another 
context about the bill, which is about encouraging competitive analyses 
and the so-called red team concepts--and we set up an audit review 
section to do quality control--it is all about making sure people don't 
get in a group-think or that they get risk averse, but that they be 
bold and opinionated and they come up with the best result for us.
  The other thing I want to say about the privacy and civil liberties 
offices is that, as Senator Collins said, we took this model--and I 
urge us to think

[[Page S10239]]

about this--from the Department of Homeland Security, which has both 
privacy and civil liberties advisers in it. I will give you a couple of 
quotes as to early reports. Asa Hutchinson, Under Secretary for Border 
and Transportation Security at the Department of Homeland Security, 
testified at the Judiciary Committee last month talking about the 
agency's existing privacy officer. He said:

       Here in DHS, we can show the effectiveness of a strong 
     privacy officer at the agency level and the success that is 
     achievable only through direct integration of privacy 
     protections in operational work. Privacy is an issue that 
     stretches across the entire government and as we continue to 
     look at government-wide approaches to privacy, it is also 
     important to see how productive agency-level privacy 
     protections are.

  That sounds to me like a good, healthy dialog has been created in 
which privacy is being considered but not standing in the way of that 
Department protecting our security.
  I will also quote from Secretary Ridge, who noted the important role 
of the same office in providing what he called ``proactive legal and 
policy advice to senior leadership in the Department and its 
components.'' He cited the office's success in working with the Border 
and Transportation Security Directorate ``to craft positive policy 
changes in response to the issues raised by the DOJ Inspector General's 
report on the 9/11 immigration detainees,'' and in ``develop[ing] 
policies to establish DHS as a model employer for people with 
disabilities . . . ''--it goes on about helping to implement President 
Bush's recent Executive order.
  I have great respect for my colleagues and friends who introduced 
this amendment. I understand their concern and I hope in some small way 
through what I have said I can alleviate the concerns they have.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama is recognized.


          Amendments Nos. 3928, 3873, 3871, and 3870, En Bloc

  Mr. SESSIONS. Mr. President, I ask unanimous consent that the pending 
amendment be set aside, and I call up amendments Nos. 3928, 3873, 3871, 
3870, and ask for their immediate consideration.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The clerk will report.
  The legislative clerk read as follows:

       The Senator from Alabama [Mr. Sessions] proposes amendments 
     numbered 3928, 3873, 3871, and 3870, en bloc.

  Mr. SESSIONS. Mr. President, I ask unanimous consent that further 
reading of the amendments be dispensed with.
  The amendments are as follows:


                           amendment no. 3928

   (Purpose: To require aliens to make an oath prior to receiving a 
                           nonimmigrant visa)

       At the end add the following new title:

                        TITLE IV--OTHER MATTERS

     SEC. 401. VISA REQUIREMENTS.

       Section 222 of the Immigration and Nationality Act (22 
     U.S.C. 1202) is amended by adding at the end the following 
     new subsection:
       ``(h) Every alien applying for a nonimmigrant visa shall, 
     prior to obtaining such visa, swear or affirm an oath stating 
     that--
       ``(1) while in the United States, the alien shall, adhere 
     to the laws and to the Constitution of the United States;
       ``(2) while in the United States, the alien will not 
     attempt to develop information for the purpose of threatening 
     the national security of the United States or to bring harm 
     to any citizen of the United States;
       ``(3) the alien is not associated with a terrorist 
     organization;
       ``(4) the alien has not and will not receive any funds or 
     other support to visit the United States from a terrorist 
     organization;
       ``(5) all documents submitted to support the alien's 
     application are valid and contain truthful information;
       ``(6) while in the United States, the alien will inform the 
     appropriate authorities if the alien is approached or 
     contacted by a member of a terrorist organization; and
       ``(7) the alien understands that the alien's visa shall be 
     revoked and the alien shall be removed from the United States 
     if the alien is found--
       ``(A) to have acted in a manner that is inconsistent with 
     this oath; or
       ``(B) provided fraudulent information in order to obtain a 
     visa.''.


                           amendment no. 3873

  (Purpose: To protect railroad carriers and mass transportation from 
                               terrorism)

       At the end of the bill, insert the following:

     SEC. __. RAILROAD CARRIERS AND MASS TRANSPORTATION PROTECTION 
                   ACT OF 2004.

       (a) Short Title.--This section may be cited as the 
     ``Railroad Carriers and Mass Transportation Protection Act of 
     2004''.
       (b) In General.--Chapter 97 of title 18, United States 
     Code, is amended by striking sections 1992 through 1993 and 
     inserting the following:

     ``Sec. 1992. Terrorist attacks and other violence against 
       railroad carriers, passenger vessels, and against mass 
       transportation systems on land, on water, or through the 
       air

       ``(a) General Prohibitions.--Whoever, in a circumstance 
     described in subsection (c), knowingly--
       ``(1) wrecks, derails, sets fire to, or disables railroad 
     on-track equipment, a passenger vessel, or a mass 
     transportation vehicle;
       ``(2) with intent to endanger the safety of any passenger 
     or employee of a railroad carrier, passenger vessel, or mass 
     transportation provider, or with a reckless disregard for the 
     safety of human life, and without previously obtaining the 
     permission of the railroad carrier, mass transportation 
     provider, or owner of the passenger vessel--
       ``(A) places any biological agent or toxin, destructive 
     substance, or destructive device in, upon, or near railroad 
     on-track equipment, a passenger vessel, or a mass 
     transportation vehicle; or
       ``(B) releases a hazardous material or a biological agent 
     or toxin on or near the property of a railroad carrier, owner 
     of a passenger vessel, or mass transportation provider;
       ``(3) sets fire to, undermines, makes unworkable, unusable, 
     or hazardous to work on or use, or places any biological 
     agent or toxin, destructive substance, or destructive device 
     in, upon, or near any--
       ``(A) tunnel, bridge, viaduct, trestle, track, 
     electromagnetic guideway, signal, station, depot, warehouse, 
     terminal, or any other way, structure, property, or 
     appurtenance used in the operation of, or in support of the 
     operation of, a railroad carrier, without previously 
     obtaining the permission of the railroad carrier, and with 
     intent to, or knowing or having reason to know such activity 
     would likely, derail, disable, or wreck railroad on-track 
     equipment;
       ``(B) garage, terminal, structure, track, electromagnetic 
     guideway, supply, or facility used in the operation of, or in 
     support of the operation of, a mass transportation vehicle, 
     without previously obtaining the permission of the mass 
     transportation provider, and with intent to, or knowing or 
     having reason to know such activity would likely, derail, 
     disable, or wreck a mass transportation vehicle used, 
     operated, or employed by a mass transportation provider; or
       ``(C) structure, supply, or facility used in the operation 
     of, or in the support of the operation of, a passenger 
     vessel, without previously obtaining the permission of the 
     owner of the passenger vessel, and with intent to, or knowing 
     or having reason to know that such activity would likely 
     disable or wreck a passenger vessel;
       ``(4) removes an appurtenance from, damages, or otherwise 
     impairs the operation of a railroad signal system or mass 
     transportation signal or dispatching system, including a 
     train control system, centralized dispatching system, or 
     highway-railroad grade crossing warning signal, without 
     authorization from the rail carrier or mass transportation 
     provider;
       ``(5) with intent to endanger the safety of any passenger 
     or employee of a railroad carrier, owner of a passenger 
     vessel, or mass transportation provider or with a reckless 
     disregard for the safety of human life, interferes with, 
     disables, or incapacitates any dispatcher, driver, captain, 
     locomotive engineer, railroad conductor, or other person 
     while the person is employed in dispatching, operating, or 
     maintaining railroad on-track equipment, a passenger vessel, 
     or a mass transportation vehicle;
       ``(6) engages in conduct, including the use of a dangerous 
     weapon, with the intent to cause death or serious bodily 
     injury to any person who is on the property of a railroad 
     carrier, owner of a passenger vessel, or mass transportation 
     provider that is used for railroad or mass transportation 
     purposes;
       ``(7) conveys false information, knowing the information to 
     be false, concerning an attempt or alleged attempt that was 
     made, is being made, or is to be made, to engage in a 
     violation of this subsection; or
       ``(8) attempts, threatens, or conspires to engage in any 
     violation of any of paragraphs (1) through (7);
     shall be fined under this title or imprisoned not more than 
     20 years, or both.
       ``(b) Aggravated Offense.--Whoever commits an offense under 
     subsection (a) in a circumstance in which--
       ``(1) the railroad on-track equipment, passenger vessel, or 
     mass transportation vehicle was carrying a passenger or 
     employee at the time of the offense;
       ``(2) the railroad on-track equipment, passenger vessel, or 
     mass transportation vehicle was carrying high-level 
     radioactive waste or spent nuclear fuel at the time of the 
     offense;
       ``(3) the railroad on-track equipment, passenger vessel, or 
     mass transportation vehicle was carrying a hazardous material 
     at the time of the offense that--
       ``(A) was required to be placarded under subpart F of part 
     172 of title 49, Code of Federal Regulations; and
       ``(B) is identified as class number 3, 4, 5, 6.1, or 8 and 
     packing group I or packing group II, or class number 1, 2, or 
     7 under the hazardous materials table of section 172.101 of 
     title 49, Code of Federal Regulations; or

[[Page S10240]]

       ``(4) the offense results in the death of any person;
     shall be fined under this title or imprisoned for any term of 
     years or life, or both. In the case of a violation described 
     in paragraph (2), the term of imprisonment shall be not less 
     than 30 years; and, in the case of a violation described in 
     paragraph (4), the offender shall be fined under this title 
     and imprisoned for life and be subject to the death penalty.
       ``(c) Crimes Against Public Safety Officer.--Whoever 
     commits an offense under subsection (a) that results in death 
     or serious bodily injury to a public safety officer while the 
     public safety officer was engaged in the performance of 
     official duties, or on account of the public safety officer's 
     performance of official duties, shall be imprisoned for a 
     term of not less than 20 years and, if death results, shall 
     be imprisoned for life and be subject to the death penalty.
       ``(d) Circumstances Required for Offense.--A circumstance 
     referred to in subsection (a) is any of the following:
       ``(1) Any of the conduct required for the offense is, or, 
     in the case of an attempt, threat, or conspiracy to engage in 
     conduct, the conduct required for the completed offense would 
     be, engaged in, on, against, or affecting a mass 
     transportation provider, owner of a passenger vessel, or 
     railroad carrier engaged in or affecting interstate or 
     foreign commerce.
       ``(2) Any person travels or communicates across a State 
     line in order to commit the offense, or transports materials 
     across a State line in aid of the commission of the offense.
       ``(e) Nonapplicability.--Subsection (a) does not apply to 
     the conduct with respect to a destructive substance or 
     destructive device that is also classified under chapter 51 
     of title 49 as a hazardous material in commerce if the 
     conduct--
       ``(1) complies with chapter 51 of title 49 and regulations, 
     exemptions, approvals, and orders issued under that chapter, 
     or
       ``(2) constitutes a violation, other than a criminal 
     violation, of chapter 51 of title 49 or a regulation or order 
     issued under that chapter.
       ``(f) Definitions.--In this section--
       ``(1) the term `biological agent' has the meaning given to 
     that term in section 178(1);
       ``(2) the term `dangerous weapon' means a weapon, device, 
     instrument, material, or substance, animate or inanimate, 
     that is used for, or is readily capable of, causing death or 
     serious bodily injury, including a pocket knife with a blade 
     of less than 2\1/2\ inches in length and a box cutter;
       ``(3) the term `destructive device' has the meaning given 
     to that term in section 921(a)(4);
       ``(4) the term `destructive substance' means an explosive 
     substance, flammable material, infernal machine, or other 
     chemical, mechanical, or radioactive device or material, or 
     matter of a combustible, contaminative, corrosive, or 
     explosive nature, except that the term `radioactive device' 
     does not include any radioactive device or material used 
     solely for medical, industrial, research, or other peaceful 
     purposes;
       ``(5) the term `hazardous material' has the meaning given 
     to that term in chapter 51 of title 49;
       ``(6) the term `high-level radioactive waste' has the 
     meaning given to that term in section 2(12) of the Nuclear 
     Waste Policy Act of 1982 (42 U.S.C. 10101(12));
       ``(7) the term `mass transportation' has the meaning given 
     to that term in section 5302(a)(7) of title 49, except that 
     the term includes school bus, charter, and sightseeing 
     transportation;
       ``(8) the term `on-track equipment' means a carriage or 
     other contrivance that runs on rails or electromagnetic 
     guideways;
       ``(9) the term `public safety officer' has the meaning 
     given such term in section 1204 of the Omnibus Crime Control 
     and Safe Streets Act of 1968 (42 U.S.C. 3796b);
       ``(10) the term `railroad on-track equipment' means a 
     train, locomotive, tender, motor unit, freight or passenger 
     car, or other on-track equipment used, operated, or employed 
     by a railroad carrier;
       ``(11) the term `railroad' has the meaning given to that 
     term in chapter 201 of title 49;
       ``(12) the term `railroad carrier' has the meaning given to 
     that term in chapter 201 of title 49;
       ``(13) the term `serious bodily injury' has the meaning 
     given to that term in section 1365;
       ``(14) the term `spent nuclear fuel' has the meaning given 
     to that term in section 2(23) of the Nuclear Waste Policy Act 
     of 1982 (42 U.S.C. 10101(23));
       ``(15) the term `State' has the meaning given to that term 
     in section 2266;
       ``(16) the term `toxin' has the meaning given to that term 
     in section 178(2);
       ``(17) the term `vehicle' means any carriage or other 
     contrivance used, or capable of being used, as a means of 
     transportation on land, on water, or through the air; and
       ``(18) the term `passenger vessel' has the meaning given 
     that term in section 2101(22) of title 46, United States 
     Code, and includes a small passenger vessel, as that term is 
     defined under section 2101(35) of that title.''.
       (c) Conforming Amendments.--
       (1) Table of sections.--The table of sections at the 
     beginning of chapter 97 of title 18, United States Code, is 
     amended--
       (A) by striking ``RAILROADS'' in the chapter heading and 
     inserting ``RAILROAD CARRIERS AND MASS TRANSPORTATION SYSTEMS 
     ON LAND, ON WATER, OR THROUGH THE AIR'';
       (B) by striking the items relating to sections 1992 and 
     1993; and
       (C) by inserting after the item relating to section 1991 
     the following:

``1992. Terrorist attacks and other violence against railroad carriers 
              and against mass transportation systems on land, on 
              water, or through the air.''.

       (2) Table of chapters.--The table of chapters at the 
     beginning of part I of title 18, United States Code, is 
     amended by striking the item relating to chapter 97 and 
     inserting the following:

``97. Railroad carriers and mass transportation systems on land, on 
    water, or through the air...................................1991''.

       (3) Conforming amendments.--Title 18, United States Code, 
     is amended--
       (A) in section 2332b(g)(5)(B)(i), by striking ``1992 
     (relating to wrecking trains), 1993 (relating to terrorist 
     attacks and other acts of violence against mass 
     transportation systems),'' and inserting ``1992 (relating to 
     terrorist attacks and other acts of violence against railroad 
     carriers and against mass transportation systems on land, on 
     water, or through the air),'';
       (B) in section 2339A, by striking ``1993,''; and
       (C) in section 2516(1)(c) by striking ``1992 (relating to 
     wrecking trains),'' and inserting ``1992 (relating to 
     terrorist attacks and other acts of violence against railroad 
     carriers and against mass transportation systems on land, on 
     water, or through the air),''.


                           amendment no. 3871

(Purpose: To provide for enhanced Federal, State, and local enforcement 
                        of the immigration laws)

       On page 213, after line 12, add the following:

                   TITLE IV--IMMIGRATION ENFORCEMENT

     SEC. 401. FEDERAL AFFIRMATION OF STATE AND LOCAL ASSISTANCE 
                   IN ENFORCEMENT OF FEDERAL IMMIGRATION LAWS.

       (a) In General.--Notwithstanding any other provision of law 
     and reaffirming the existing inherent authority of States, 
     law enforcement personnel of a State or a political 
     subdivision of a State have the inherent authority of a 
     sovereign entity to investigate, apprehend, arrest, detain, 
     or transfer to Federal custody aliens in the United States 
     (including the transportation of such aliens across State 
     lines to detention centers), in the course of carrying out 
     their routine duties for the purpose of assisting in the 
     enforcement of the immigration laws of the United States.
       (b) Construction.--Nothing in this section shall be 
     construed to require law enforcement officers of a State or 
     political subdivision of a State to--
       (1) report the identity of victims of, or witnesses to, a 
     criminal offense to the Secretary of Homeland Security; or
       (2) arrest such victims or witnesses for immigration 
     violations.

     SEC. 402. LISTING OF IMMIGRATION VIOLATORS IN THE NATIONAL 
                   CRIME INFORMATION CENTER DATABASE.

       (a) Provision of Information to NCIC.--
       (1) In general.--Not later than 180 days after the date of 
     enactment of this Act, and continually thereafter, the Under 
     Secretary for Border and Transportation Security of the 
     Department of Homeland Security shall provide the National 
     Crime Information Center of the Department of Justice with 
     such information as the Under Secretary may have on--
       (A) all aliens against whom a final order of removal has 
     been issued;
       (B) all aliens who have signed a voluntary departure 
     agreement; and
       (C) all aliens whose visas have been revoked.
       (2) Circumstances.--The information described in paragraph 
     (1) shall be provided to the National Crime Information 
     Center regardless of whether--
       (A) the alien received notice of a final order of removal; 
     or
       (B) the alien has already been removed.
       (b) Inclusion of Information in NCIC Database.--Section 
     534(a) of title 28, United States Code, is amended--
       (1) in paragraph (3), by striking ``and'' at the end;
       (2) by redesignating paragraph (4) as paragraph (5); and
       (3) by inserting after paragraph (3) the following:
       ``(4) acquire, collect, classify, and preserve records of 
     violations of the immigration laws of the United States; 
     and''.
       (c) Permission To Depart Voluntarily.--Section 
     240B(a)(2)(A) of the Immigration and Nationality Act (8 
     U.S.C. 1229c(a)(2)(A)) is amended by striking ``120'' and 
     inserting ``30''.

     SEC. 403. FEDERAL CUSTODY OF ILLEGAL ALIENS APPREHENDED BY 
                   STATE OR LOCAL LAW ENFORCEMENT.

       (a) In General.--Section 241 of the Immigration and 
     Nationality Act (8 U.S.C. 1231) is amended by adding at the 
     end the following:
       ``(j) Custody of Illegal Aliens.--
       ``(1) In general.--If the chief executive officer of a 
     State or, if appropriate, a political subdivision of the 
     State, exercising authority with respect to the apprehension 
     of an illegal alien submits a request to the Secretary of 
     Homeland Security that the alien be taken into Federal 
     custody, the Secretary of Homeland Security--
       ``(A) shall--

[[Page S10241]]

       ``(i) not later than 48 hours after the conclusion of the 
     State charging process or dismissal process, or if no State 
     charging or dismissal process is required, not later than 48 
     hours after the illegal alien is apprehended, take the 
     illegal alien into the custody of the Federal Government and 
     incarcerate the alien; or
       ``(ii) request that the relevant State or local law 
     enforcement agency temporarily incarcerate or transport the 
     illegal alien for transfer to Federal custody; and
       ``(B) shall designate at least 1 Federal, State, or local 
     prison or jail, or a private contracted prison or detention 
     facility, within each State as the central facility for that 
     State to transfer custody of the criminal or illegal alien to 
     the Secretary of Homeland Security.
       ``(2) Reimbursement.--
       ``(A) In general.--The Department of Homeland Security 
     shall reimburse States and political subdivisions for all 
     reasonable expenses, as determined by the Secretary of 
     Homeland Security, incurred by a State or political 
     subdivision in the incarceration and transportation of an 
     illegal alien as described in subparagraphs (A) and (B) of 
     paragraph (1).
       ``(B) Cost computation.--Compensation provided for costs 
     incurred under subparagraphs (A) and (B) of paragraph (1) 
     shall be the sum of--
       ``(i)(I) the average cost of incarceration of a prisoner 
     per day in the relevant State, as determined by the chief 
     executive officer of a State, or, as appropriate, a political 
     subdivision of the State; multiplied by
       ``(II) the number of days that the alien was in the custody 
     of the State or political subdivision; and
       ``(ii) the cost of transporting the criminal or illegal 
     alien--

       ``(I) from the point of apprehension to the place of 
     detention; and
       ``(II) if the place of detention and place of custody are 
     different, to the custody transfer point.

       ``(3) Authorization of appropriations.--There are 
     authorized to be appropriated such sums as may be necessary 
     to carry out paragraph (2).''.


                           amendment no. 3870

 (Purpose: To make information sharing permanent under the USA PATRIOT 
                                  ACT)

       At the appropriate place, insert the following:

     SEC. __. PERMANENT INFORMATION SHARING.

       Section 224 of the USA PATRIOT ACT (Public Law 107-56) is 
     amended by--
       (1) striking ``203(a), 203(c)'' and inserting ``203''; and
       (2) inserting ``218,'' after ``216,''.

  Mr. SESSIONS. Mr. President, these amendments deal with important 
matters in a number of areas. I will provide more information at the 
appropriate time about them. I just note that one thing we certainly 
need to do--I believe there is uniform agreement on this--is that the 
provisions that deal with the wall between the FBI and CIA, basically, 
between domestic enforcement and foreign intelligence--that has been 
identified as one of the primary reasons we did not coordinate our 
intelligence effectively prior to 9/11--that that wall that we have 
temporarily removed be removed permanently. That is one of the 
provisions I suggested in these amendments that have been called up. We 
will go into more detail as time goes by.
  I thank Senator Lieberman for his thoughtful comments, as always. He 
is very astute in the history and development of intelligence and his 
interest in the security of the United States is not surpassed in this 
body. I would say that my concerns are numerous about the legislation 
in general. Sometimes it is like when you are getting ready to buy that 
new car or new house and you get the pen in your hand and angst arises 
because you are afraid to sign it. But when you do sign it, everything 
goes along fine and it wasn't nearly as bad as you thought. That could 
be what we are dealing with.
  Also, maybe there are some reasons to be concerned about buying this 
house or this automobile; perhaps because it is a lemon. Maybe we don't 
have the money. Maybe this isn't the best way to do it. I am concerned 
about governmental bureaucracy and the real possibility that we will 
make it worse.
  As a Federal prosecutor for 12 years, I worked to try to coordinate 
all the Federal agencies involved--for example, in drug law 
enforcement. In Mobile, AL, under the Treasury Department, you had the 
IRS and they would do financial investigations of drug dealers. The 
Customs officers were at the ports and they did investigations of drug 
dealers who shipped in through the ports. They had a lot of abilities--
remarkable ability, really, to help in those instances. You had the 
Department of Alcohol, Tobacco, and Firearms, also part of Treasury. 
And ATF often got involved in drug cases, although it didn't have 
direct jurisdiction in such cases. On the other side, you had the 
Department of Justice, and you had the U.S. Marshal Service and, of 
course, the U.S. Attorney, FBI, DEA, and Immigration Service. Then, 
before it went into Homeland Security, the Coast Guard, a part of the 
Transportation Department, which patrolled the Gulf of Mexico and 
frequently stopped boats loaded with drugs. They were all independent 
agencies. I would try to get them to work together and at times it was 
very difficult, but we made great progress.
  How did it happen that we made progress in cooperation during the 
years that I was an U.S. Attorney? I have thought about it. There was 
not any major reorganization. In fact, there was no real reorganization 
of the Government. Ronald Reagan declared a war on drugs, and, we had a 
war on drugs. It raised the attention level of every Government agency. 
He said that we will cooperate with one another. The Attorney General 
of the United States, William French Smith, hired a young, aggressive, 
talented prosecutor and made him third in command at the Department of 
Justice, the associate Attorney General, and he directed him to work 
with the U.S. attorneys and every agency in the Government to make sure 
they cooperated and worked together to deal with the war on drugs. That 
young prosecutor, Mr. President, is well known today. It was Rudy 
Giuliani. He made things happen. People knew he spoke for the President 
and we made tremendous progress.
  If there was a discussion about how to investigate a major drug gang, 
and the FBI didn't cooperate with Customs or the DEA was unhappy with 
Customs or the FBI, the U.S. attorney could just call up somebody in 
Washington and say: Look, these guys are fighting over bureaucratic 
turf. We have a case we need to prosecute, and we need to work 
together. It worked. The turf battles would end. Things happened in an 
extraordinary way. There was no new bureaucracy established. That is 
all I am saying. No new entity was established to create coopertion.
  A number of years later, in order to obtain more coordination, 
Congress, after much debating and ballyhoo, created a drug czar, and 
that was supposed to coordinate these activities.
  The drug czar has some interesting powers, and the model of the drug 
czar might not be bad for this entity, for the challenge of improving 
our intelligence capabilities. The drug czar has the responsibility to 
get with every department and agency of the Government and to write, 
with their input, a plan to fight drugs in America. He does that. They 
all sign off on it.
  Then the drug czar, before the budget request of each one of these 
agencies goes to the Office of Management and Budget, approves their 
budget, and if he concludes they are not funding or not asking for 
funds to carry out the agreement they signed, then he has the ability 
to object and block that budget. It eventually goes to the President if 
there is a dispute. But the drug czar has quite a bit of power. It is a 
small office compared to the other major departments and agencies in 
the Government. We have to be careful with this legislation that we are 
not creating another layer of Government.
  Mr. McLaughlin, who was the Acting Director of the CIA before Mr. 
Goss was confirmed, appeared before Senator Warner's Armed Services 
Committee. Chairman Warner asked him a number of questions. One of the 
things he said that was important to me as a person who has been 
involved in dealing with Government agencies and knows how people pass 
the buck and how they cover their own problems--all tendencies that are 
natural inclinations of governmental entities--I have been there; I 
know it--Mr. McLaughlin said: I think we need to ask ourselves a couple 
of questions. One is, who will brief the President of the United States 
on matters involving intelligence? Who is going to tell the President 
whether there are weapons of mass destruction in Iraq? Right now, it is 
clear the CIA Director does that.
  The second question is, who will be responsible if it is wrong? Today 
that is clear still. It is the CIA Director.
  We do not have the same CIA Director that we did. He told the 
President it was a slam dunk that WMD products were in Iraq, and 
apparently they were not, or at least we have not found them, which is 
more accurate. And he no longer holds the office.

[[Page S10242]]

  If we come up with a new organization that organization leaves it 
less clear who is responsible for stating the intelligence situation of 
the United States to the President, and we make it even less clear who 
can be held responsible, then we have not made progress.
  My colleagues say the national intelligence director can do it. He 
could. Where does he get his information? Is he going to interview the 
CIA and then repeat what the CIA told him to the President? And then if 
he is wrong, will he say: It wasn't my fault; the CIA told me that? We 
get into a little bit of a mess here.
  The idea of having an enhanced unification of intelligence-gathering 
capability and dissemination of intelligence appeals to me very much. I 
remain somewhat confused how we should do it, however. I just do not 
know what is the best way to do it.
  I so much appreciate the time Senator Collins and Senator Lieberman 
have put into this legislation. I know it has many good things in it, 
but I am just not sure how much progress we will have made when we do 
this because we know what the real problems are: we did not have enough 
linguists; we had legal walls between intelligence agencies. We have 
taken those down. At the President's leadership and insistence, we are 
bringing in more human intelligence, a critical need, and we are 
bringing in more foreign language speakers at an incredible new rate. 
We are moving more aggressively than we ever have against al-Qaida. 
Three-fourths of them have been captured or killed. We have made 
progress all over the world. We have enhanced our partnerships with not 
only our agencies within the United States but around the world. It is 
not appropriate to mention or talk about all the cooperation we are 
getting from agencies of other nations, foreign intelligence agencies. 
They are sharing with us much better. A lot of things are going well.

  I think it is fair to say the military feels the intensity of the 
leadership from the President on down has forced, such as Rudy Giuliani 
and President Reagan did on the war on drugs, a lot better cooperation 
between intelligence entities today. The DOD people know the people in 
the CIA. CIA and the FBI are meeting daily with Homeland Security. And 
those people know each other's names. They have had months of 
partnerships working together. The system is working, and I am afraid 
if we reorganize all this, it may look good on paper, but the personal 
relationships that have caused confidence to be built up may be 
undermined. If that were to happen, in the middle of a war, we would 
not be proud of ourselves.
  I thank the Chair. Those are thoughts and concerns I have. I love 
this country. I know we are in a dangerous period. This struggle 
against terrorism will continue for decades--for decades it will 
continue--and the key to victory is intelligence and identifying these 
dangerous cells before they attack us.
  I think we are discussing an important issue. I thank the people who 
have worked so hard on it. I yield the floor.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Mr. President, I wish to compliment our distinguished 
colleague. He has spent a lot of time on the Senate Armed Services 
Committee. He is very familiar with these processes and the people.
  We can write the laws as best we can, but it comes down very often to 
those human relationships to which he referred and this particular 
framework in the NID. Because the NID cannot, as the distinguished 
chairman has said, create a whole new department, he has to rely on 
subordinates who have direct line of authority over a lot of troops, 
but he is not going to have troops in the sense the Senator from 
Alabama and I have used them for the departments and agencies of the 
Government as they function today. He is a step removed.
  Those personal relationships with his immediate subordinates and 
advisers are going to be very important. I thank the Senator.
  Mr. President, at this time, if it is convenient to the managers, I 
will proceed on an amendment.


                           Amendment No. 3876

  Mr. WARNER. Mr. President, I send to the desk an amendment and ask 
for its consideration.
  The PRESIDING OFFICER. Without objection, the pending amendments are 
set aside. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Virginia [Mr. Warner], for himself, Mr. 
     Stevens, and Mr. Inouye, proposes an amendment numbered 3876.

  The amendment is as follows:

  (Purpose: To preserve certain authorities and accountability in the 
                 implementation of intelligence reform)

       On page 213, insert after line 8, the following:

     SEC. 352. PRESERVATION OF AUTHORITY AND ACCOUNTABILITY.

       Nothing in this Act, or the amendments made by this Act, 
     shall be construed to impair and otherwise affect the 
     authority of--
       (1) the Director of the Office of Management and Budget; or
       (2) the principal officers of the executive departments as 
     heads of their respective departments, including, but not 
     limited to--
       (A) the authority of the Secretary of State under section 
     199 of the Revised Statutes (22 U.S.C. 2651) and the State 
     Department Basic Authorities Act;
       (B) the authority of the Secretary of Energy under title II 
     of the Department of Energy Organization Act (42 U.S.C. 
     7131);
       (C) the authority of the Secretary of Homeland Security 
     under section 102(a) of the Homeland Security Act of 2002 (6 
     U.S.C. 112(a));
       (D) the authority of the Secretary of Defense under 
     sections 113(b) and 162(b) of title 10, United States Code;
       (E) the authority of the Secretary of the Treasury under 
     section 301(b) of title 31, United States Code;
       (F) the authority of the Attorney General under section 503 
     of title 28, United States Code; and
       (G) the authority of the heads of executive departments 
     under section 301 of title 5, United States Code.
       On page 213, line 9, strike ``352.'' and insert ``353.''.

  Mr. WARNER. Mr. President, I refer to the September 28, 2004 
Statement of Administration Policy in which the administration 
expresses their support for the very able work of the distinguished 
chairman and ranking member on S. 2845.
  However, equally important are a number of items that were referred 
to in this document called the SAP. I draw the attention of my 
colleagues to the last paragraph. I shall read the first sentence:

       The Administration notes that the Committee bill did not 
     include Section 6 (``Preservation of Authority and 
     Accountability'') of the Administration's proposal.

  I ask unanimous consent that the entire paragraph from the SAP be 
printed in its entirety in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       The Administration notes that the Committee bill did not 
     include Section 6 (``Preservation of Authority and 
     Accountability'') of the Administration's proposal; the 
     Administration supports inclusion of this provision in the 
     Senate bill. The legislation should also recognize that its 
     provisions would be executed to the extent consistent with 
     the constitutional authority of the President: to conduct the 
     foreign affairs of the United States; to withhold information 
     the disclosure of which could impair the foreign relations, 
     the national security, deliberative processes of the 
     Executive, or the performance of the Executive's 
     constitutional duties; to recommended for congressional 
     consideration such measures as the President may judge 
     necessary or expedient; and to supervise the unitary 
     executive.
  Mr. WARNER. Immediately following it, I ask unanimous consent that 
section 6 to which it refers, drawn from the policy statement forwarded 
by the administration in its efforts to give the very helpful advice 
and counsel to the Senate--and I presume the House, as we are working 
on this matter--be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

     SEC. 6. PRESERVATION OF AUTHORITY AND ACCOUNTABILITY.

       Nothing in this Act or amendments made by this Act shall be 
     construed to impair or otherwise affect the authority of: (1) 
     the Director of the Office of Management and Budget; or (2) 
     the principal officers of the executive departments as heads 
     of their respective departments, including, but not limited 
     to, under section 199 of the Revised Statutes (22 U.S.C. 
     2651), Title II of the Department of Energy Organization Act 
     (42 U.S.C. 7131), the State Department Basic Authorities Act 
     of 1956, as amended, section 102(a) of the Homeland Security 
     Act of 2002 (6 U.S.C. 112(a)), and sections 301 of title 5, 
     113(b) and 162(b) of title 10, 503 of title 28, and 301(b) of 
     title 31, United States Code.

  Mr. WARNER. The amendment which the Senator has drawn here, myself,

[[Page S10243]]

Senator Stevens, and Senator Inouye as cosponsors, we have lifted 
essentially the language of that into the amendment such that the 
administration's request in that SAP document is met.
  In support for the action I am taking, I refer as follows: The 
President made two basic decisions with respect to intelligence reform 
designed to implement the 9/11 Commission recommendations. First, he 
decided that the national intelligence director should have ``full 
budget authority'' with respect to the national foreign intelligence 
program. The bill before us contains a number of provisions intended to 
carry out that decision.
  Second, the President made an equally important decision that the 
heads of the departments should continue to be in charge of and 
therefore continue to be accountable for the performance of their 
respective departments.
  This amendment I have submitted would carry out the second 
Presidential goal.
  The language of the amendment, as I said, is virtually identical to 
the language of the administration's proposal which I have now placed 
into the Record.
  The amendment makes clear that the principal officers of the 
executive departments will remain as the organic statutes, for their 
departments currently provide the heads of their departments with 
authority over and responsibility for those departments.
  The amendment also preserves the existing authority of the Director 
of Office of Management and Budget with respect to the budget 
administrative and legislative proposals.
  With this amendment, the bill would provide for a strong national 
intelligence director and would also ensure that the heads of executive 
departments remain accountable for the performance of their 
departments, including the intelligence elements of those departments.
  It seems to me that is essential. Again, we come back to the basic 
concept, we are not creating a new department of government. 
Consequently, the NID has to rely on the department agency heads to 
perform their services, and to do that they have to be put into a 
position of accountability. That accountability is essential to the 
smooth operation of the goals of this particular legislation.
  A strong national intelligence director and accountable heads of 
departments are compatible concepts. As part of their responsibility, 
heads of the departments will be accountable for ensuring faithful 
implementation by their departments' intelligence elements of the 
guidance and tasking issued by the national intelligence director under 
such authority as may be granted by the final draft of this 
legislation.
  The President gave a very clear example that illustrates the need for 
this amendment when he discussed the intelligence reform on August 2, 
2004. He said: The national intelligence director will work with the 
respective agencies to set priorities, but let me make it also very 
clear that when it comes to operations, the chain of command will be 
intact. When the Defense Department is conducting operations to secure 
the homeland, there will be nothing between the Secretary of Defense 
and me.
  Consequently, I would add one other thought. The chief of staff 
thereafter echoed on the quote: We do not want to do anything that 
would undermine the chain of command and the responsibilities that go 
with the Department of Defense, Director of the Central Intelligence 
Agency, the Secretary of the Homeland Security Department, and other 
intelligence agencies, the Attorney General, for example.
  I am certain they meant to include the Department of State.
  This amendment carries out that objective.
  I would be interested in the comments of the chairman and the ranking 
member, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. LIEBERMAN. Mr. President, taking a look at this amendment, I say 
to my friend from Virginia it may be that we can work this one out 
together because I believe we have a common interest, which is by the 
changes we are making in law, creating the national intelligence 
director, not to otherwise alter the authority of various department 
heads--State, Energy, Homeland Security, Defense, et cetera, that the 
Senator has enumerated--but clearly the underlying Collins-Lieberman 
bill does alter some of those authorities by creating authority in the 
national intelligence director.
  Except for that, I do not think there is any intention to otherwise 
undercut. So the language is a bit worrisome on first look, which is 
that nothing in the act shall be construed to impair or otherwise 
affect the authority of these officers.
  Well, we do want to affect the authority to the extent stated in the 
Collins-Lieberman proposal, but not otherwise.
  Mr. WARNER. Mr. President, I would have to reflect on that because it 
seems to me the Senator is trying to have it both ways, and I am sure 
my distinguished colleague would not be seeking that goal.
  Mr. LIEBERMAN. No, I am not. But if I might say briefly--
  Mr. WARNER. Let me repeat that. I did not have the microphone on.
  Mr. LIEBERMAN. That should be on the record.
  Mr. WARNER. I say that the distinguished Senator is trying to have it 
both ways.
  Mr. LIEBERMAN. I want my denial of that intention to also be in the 
Record.
  Mr. WARNER. Fine.
  So what is the proposal of the Senator?
  Mr. LIEBERMAN. Well, I think we should reason together a little bit 
on this. In other words, I am concerned, in the broadest reading of 
this, this amendment could be read to undercut everything else the bill 
does. I do not believe the Senator would intend to do that.
  Mr. WARNER. That is not my intention.
  Mr. LIEBERMAN. Right. But only, if I understand it, to protect the 
authority of the departments except as we specifically alter them in 
the bill.
  So, for instance, the national intelligence director will have 
certain budget authorities or transfer authorities under the bill, as 
it exists, which do alter the authority of some of those constituent 
departments--State, Energy, Homeland Security, Defense, et cetera. I 
would not want this language to obviate the impact of all of those 
changes.
  Mr. WARNER. Yes, but let's work around it and be very mindful of the 
President's language. He said: Equally important that the heads of the 
departments should continue to be in charge of and therefore continue 
to be accountable for the performance of their respective departments.
  Mr. LIEBERMAN. Right.
  Mr. WARNER. Then I read his direct quotation, which seems to me we 
have translated into this amendment in good faith.
  Mr. LIEBERMAN. If I might, I hear what the Senator is saying, and 
this goes back to the debate we have had off and on over the 5 days in 
which we have been on the bill. Let us take the Department of Defense, 
because that is a concern we have that has been expressed. This was 
something we argued with regard to the so-called Specter amendment 
which would have created line authority in the national intelligence 
director over all the constituent intelligence agencies, including 
those in the Department of Defense. Senator Collins and I argued we do 
not want to go that far. We want the Secretary of Defense to maintain 
line authority over NSA, NRA and NGA. On the other hand, we do want--
and we may argue this on another amendment--the national intelligence 
director to be able to have the budget authority we give him and have 
the transfer authority, et cetera.
  Maybe we are heading in the same direction. I think this is one we 
can try to work out.
  Mr. WARNER. Obviously you tried to express the good intentions of 
trying to work this out. Certainly I desire to do so. But we must be 
very careful, under the extraordinary circumstances under which this 
very important piece of legislation is being put together. I am sure 
lots of work will take place over the weekend, but Monday and Tuesday 
are days in which certainly this bill, in its construction, is likely 
to be completed. We have to be careful that we do not create gaps in 
it, where a department head now can say: Look, the

[[Page S10244]]

bill took that authority away. If a problem occurred, that is the NID's 
problem. And then the NID says: Oh, no, that is your problem on your 
account. We just cannot have finger-pointing when it comes to issues as 
important as our Nation's intelligence.
  Mr. LIEBERMAN. Just a final word: We have been quite focused and 
specific when we have granted authority to the national intelligence 
director. So, therefore, all the other authorities the law gives to the 
various department heads enumerated in the Senator's amendment would 
not be affected. I see that language--perhaps we should consult with 
the representatives of the White House, too, to find out what their 
particular concern was.
  We have amended the authority, or even affected the authority of the 
existing departments, along the margins here.
  Mr. WARNER. I think that consultation would be helpful. I have 
undertaken it in connection with this amendment. I believe my views are 
consistent with theirs. But an awful lot of work has gone on now. It 
may be that there is some refinement that would further strengthen 
this.
  For the moment, if the distinguished chairman wishes to speak, I will 
be happy to hear it and we will just put the amendment to one side.
  I would like to come back this afternoon to modify an amendment that 
is at the desk, again, to clarify that in hopes that it comes near to 
what your goals are.
  I will be back. If the chairman could advise me, is there going to be 
further time?
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Mr. President, I believe we will be here for another 
hour, approximately--until 5 o'clock.
  Mr. WARNER. That should be adequate time.
  Ms. COLLINS. Before the Senator from Virginia leaves, I think we have 
the same goal in this amendment. But I think to make sure that this 
amendment is interpreted as I believe we would all have it interpreted, 
we need to add language at the beginning that says something like: 
Except as specifically set forth in this act, nothing herein or 
amendments made by this amendment shall be construed to impair or 
otherwise affect the authority of it.
  That way it would be clear that in this provision we are not 
affecting the other authorities of these departments, but neither are 
we wiping out what this legislation has done.
  Mr. WARNER. Mr. President, I fully understand the import of the 
language you are quoting. But that is almost putting a blessing on 
everything that is written into the bill. I am not sure I am prepared 
as yet to say that. That is going to require a little study on the part 
of both of us because I think the effect of your language is, don't 
touch the bill, but what the bill leaves they are accountable for. That 
has to be thought through.

  Ms. COLLINS. Mr. President, obviously we do want to preserve what is 
in the bill. That is why we are doing the bill.
  Mr. WARNER. I understand that.
  Ms. COLLINS. If the intent of the Senator is to override the 
provisions of the bill, then that would be a problem.
  Mr. WARNER. We are trying to make certain just that undefined but all 
important concept of accountability remains. As you possibly take 
portions of the responsibility of department heads away and give it to 
the NID, I want to make sure, if something goes wrong, who is 
accountable.
  We will work. I understand your perspective, but I am not prepared, 
as yet, to accept that amendment. So we will lay this aside. I thank 
you.
  Mr. President, I am prepared to go ahead with the other matter, if I 
might.


                    Amendment No. 3877, As Modified

  Mr. President, I would like at this time to send to the desk a 
modification to amendment No. 3877 by the Senator from Virginia.
  The PRESIDING OFFICER. The amendment is pending and is so modified.
  The amendment (No. 3877), as modified, is as follows:

       On page 40, strike line 13 and all that follows through 
     page 42, line 25, and insert the following:
       (a) National Intelligence Director Recommendation or 
     Concurrence in Certain Appointments.--With respect to any 
     position as head of an agency or organization within the 
     intelligence community--
       (1) if the appointment to such position is made by the 
     President, any recommendation to the President to nominate or 
     appoint an individual to such position shall be accompanied 
     by the recommendation of the National Intelligence Director 
     with respect to the nomination or appointment of such 
     individual to such position; and
       (2) if the appointment to such position is made by the head 
     of the department containing such agency or organization, the 
     Director of the Central Intelligence Agency, or a subordinate 
     official of such department or of the Central Intelligence 
     Agency, no individual may be appointed to such position 
     without the concurrence of the National Intelligence 
     Director.
       (b) Presidential Authority.--This section, and the 
     amendments made by this section, shall apply to the fullest 
     extent consistent with the authority of the President under 
     the Constitution relating to nomination, appointment, and 
     supervision of the unitary executive branch.
       (c) Conforming Amendments.--(1) Section 201 of title 10, 
     United States Code, is amended--
       (A) by striking subsection (a);
       (B) by redesignating subsections (b) and (c) as subsections 
     (a) and (b), respectively;
       (C) by striking ``Director of Central Intelligence'' each 
     place it appears and inserting ``National Intelligence 
     Director'';
       (D) in subsection (a), as so redesignated--
       (i) in paragraph (1)--
       (I) by striking ``seek'' and inserting ``obtain''; and
       (II) by striking the second sentence; and
       (ii) in paragraph (2)--
       (I) by redesignating subparagraphs (B) and (C) as 
     subparagraphs (C) and (D), respectively; and
       (II) by inserting after subparagraph (A) the following new 
     subparagraph (B):
       ``(B) The Director of the Defense Intelligence Agency.''; 
     and
       (E) in paragraph (2) of subsection (b), as so 
     redesignated--
       (i) by redesignating subparagraphs (B) and (C) as 
     subparagraphs (C) and (D), respectively; and
       (ii) by inserting after subparagraph (A) the following new 
     subparagraph (B):
       ``(B) The Director of the Defense Intelligence Agency.''.
       (2)(A) The heading of such section is amended by striking 
     ``consultation and''.
       (B) The table of sections at the beginning of subchapter II 
     of chapter 8 of such title is amended in the item relating to 
     section 201 by striking ``consultation and''.

  Mr. WARNER. Mr. President, earlier today I engaged in a colloquy and 
submitted the original form of this amendment. Subsequent thereto, I 
had the opportunity to consult with a number of individuals. It is my 
desire now, basically, to revise my amendment to comport with section 
106 of the President's proposal, which he forwarded to the Senate. That 
is entitled:

       Appointment of officials responsible for intelligence-
     related activities. Requirement for National Intelligence 
     Director concurrence with respect to certain appointments, 
     with respect to any positions that heads of agency or 
     organization within the intelligence community. . . .

  My concern, what I am trying to achieve by this succession of 
amendments, is to provide some uniformity in the process designating 
and selecting the heads of the various--for example, the combat 
commands, as I refer to them, that was the subject of my earlier 
amendment.
  I find that the President's approach in the proposal that he 
forwarded to the Senate is preferable to my earlier attempt at this. It 
reads:

       If the appointment to such position is made by the 
     President, any recommendation to the President to nominate or 
     appoint an individual to such position shall be accompanied 
     by the recommendation of the National Intelligence Director 
     with respect to the [proposed] nomination or appointment. . . 
     .
       (2) if the appointment to such position is made by the head 
     of the department containing agency or organization [within 
     the intelligence community or] the Director of the Central 
     Intelligence Agency, or a subordinate official of such 
     department or of the Central Intelligence Agency, no 
     individual shall be appointed to such position without the 
     concurrence of the National Intelligence Director.

  I believe that, then, confirms there is a certain degree of 
uniformity and preservation of accountability for the people selected 
in the various heads of the departments and the agencies.
  With that, I will yield the floor for such comment as may be 
forthcoming from the chairman and ranking member.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.

[[Page S10245]]

  Mr. SESSIONS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Allen). Without objection, it is so 
ordered.
  Mr. SESSIONS. Mr. President, I see the distinguished chairman of the 
Armed Services Committee. I know he was present when Mr. McLaughlin was 
Acting Director of the CIA and he testified, along with a number of 
distinguished Government officials, including the Secretary of Defense. 
He made clear one point. I mentioned it earlier. He said that in any 
reorganization, it needs to be clear where the responsibility and 
accountability lies.
  He asked the question, who will brief the President, and, in fact, 
who will be held accountable if he briefs the President incorrectly?
  I see Senator Warner, and I would like to ask the bill managers, 
also, but my question to Senator Warner is, from his study of the bill, 
which is more extensive than mine, does he think there is any clear 
answer in this legislation that is moving forward to the question asked 
by Mr. McLaughlin? Who briefs the President and who is responsible if 
he is in error?
  Mr. WARNER. I thank my colleague for the question because earlier 
today I had a number of discussions related to this question. I talked 
to some of the White House people. I think I have spoken in the Chamber 
a number of times about my concern as to the future posture, standing, 
of this Director of Central Intelligence. He has this magnificent 
organization, albeit there was a problem on the weapons of mass 
destruction, but in terms of numbers it was a relatively minute number 
of people, although the problem is very serious. The organization is 
all over the world and they are taking risks, extraordinary in some 
instances, comparable to the men and women in uniform of the Armed 
Forces as they pursue their assignments.
  It is my concern in this reorganization where the director of 
intelligence now becomes a subordinate, and a decision is to be made by 
the President, in this legislation it appears to be the case he will 
not be at the moment on the council--are you familiar with the council 
of the Secretaries of State and Defense, Attorney General, Homeland 
Security, and others, who will be sort of a close-knit group and NID 
will be chairman of the council, and from time to time they will be 
advising the President, presumably, through the NID? I have tried to 
work it out so if, say, the Secretary of Defense has views at variance 
with the NID at the time the NID briefs the President on the NID's 
position, he is obligated by law to brief the President on the 
divergent position of one or more members of his council. That is a 
pending amendment. It is a joint intelligence communities council.
  Anyway, I felt that perhaps somehow the Director of the CIA should be 
involved. There is concern about protocol. It is all Cabinet. He, as 
such, does not have Cabinet rank. I am working on a proposition to see 
whether we can preserve the integrity that has been accumulated over 
many years of the Director of the CIA. It is not only in the United 
States; he is known all over the world as a person who holds that 
position. I don't want to see any loss in the eyes of the counterparts 
worldwide as this new structure, presumably, will be enacted into law.
  The answer to the question is, of course, the President can have 
whomever he wishes to brief him, but I presume NID is specifically 
someone that the President asked the Congress to create by law. He 
would be the principal briefer. From time to time he would be 
accompanied perhaps by others and I think more often than not by the 
Director of the CIA.
  Given that it is the President's absolute authority to decide who he 
wants to brief him, I don't think it should be written into law, but I 
am seeking some clarification to the very question the Senator has 
asked because it is of concern to me. As soon as I gain further 
information, I will be happy to share it with my colleague.

  Mr. SESSIONS. I thank Senator Warner for his comments. It does appear 
if we pass this new procedure, we ought to understand who Congress 
contemplates would be the person most likely to brief the President.
  I think I understand what the Senator was saying. It is so important 
that if the main person is going to be the NID, the national 
intelligence director who does the briefing, it seems to me he or she 
would have to reach down and take about half of the CIA up to be on his 
staff to help him prepare the brief or else he will be regurgitating 
what came from some other agency and then we have created a weakened 
CIA, a muddled NID, and who is responsible. Is that a problem?
  Mr. WARNER. Mr. President, the Senator is quite correct. We do not 
want to do that.
  In good faith, the chairman of the committee has repeatedly said, in 
this Chamber, we are not creating a whole new department. I heard the 
ranking member today mention that. Therefore, we would not in any way 
be trying to create that number of persons.
  Nevertheless, who knows them better--that is, the individual members 
of the CIA--than the Director who has daily hands-on authority, who 
travels and visits in posts all over the world, who is basically 
responsible for their promotion, demotion, and accountability.
  Mr. SESSIONS. The chairman is correct.
  For the people following this debate, they need to know that the CIA 
has operations in virtually every country in the world and it is from 
those agents that much of our intelligence comes. It comes through the 
CIA Director and he has always briefed the President as the Director of 
Central Intelligence.
  Mr. WARNER. And that fact is known, if I can say to my colleague, 
that fact is known the world over, that the man who directs the CIA and 
who is visiting in Great Britain or Pakistan, that is the man who will 
go home and look the President of the United States straight in the 
eye. That carries a lot of weight as it results in the creation of 
personal relationships between the director of our intelligence and his 
counterparts worldwide.
  I do not think it is a subject that can be legislated in law. It is 
something of legislative history being created in the Senate now and is 
a vital part of the future interpretation and implementation of this 
new law.
  I thank the Senator.
  Mr. SESSIONS. Would the distinguished managers of the bill, for whom 
I have so much respect, care to comment on the question that Acting 
Director McLaughlin posed at our hearing when he said one thing we had 
to be clear about was who would be responsible for stating the 
intelligence position of the United States to the President and who 
would be held accountable if they were wrong. It is a question we need 
to be clear about.
  Mr. LIEBERMAN. It is a very important question and I am prepared to 
give a very short and direct answer which I believe is reflected in the 
bill, which is that the national intelligence director is explicitly 
intended to be the principal intelligence advisor to the President of 
the United States. There should be no doubt about that.
  It will give him two roles: One as administrator of the intelligence 
community--but then, why? To be the principal intelligence adviser to 
the No. 1 user of intelligence, not the only one but the President of 
the United States as Commander in Chief.

  Mr. SESSIONS. I say to Senator Lieberman, I would share your view 
that the President is the No. 1 customer of the intelligence that comes 
forward. I think he may well need a No. 1 adviser to help assimilate 
all of it.
  But let's go back now. Would it normally be that the person who walks 
in there and looks the President in the eye--should not that person 
have line, control, and supervision over the people who provided him 
with that intelligence? And isn't that the only way he can be held 
responsible for the brief and the opinions to the President, if he 
obtained the information from sources that are accountable to him or 
her?
  Whereas, in this case, if the NID does it, and the information is 
coming up through the vast CIA network around the world, as it most 
often would be--not always but most often would be--then, isn't that a 
weakness in our concept here?
  Mr. LIEBERMAN. Mr. President, through you, of course, I say to the 
Senator, I do not believe it is a weakness. Here is the judgment we had 
to make: The Director of Central Intelligence now is effectively the 
principal intelligence adviser to the President,

[[Page S10246]]

but as we have seen and stated over and over again in this debate, the 
record shows that the DCI has not had enough authority to coordinate 
the activities of the intelligence community to create the kind of 
unity of effort that we need to make sure we do not have a repeat, at 
worst, of September 11 and, in a very different way, of what everybody 
acknowledges was an imperfect functioning of the intelligence community 
prior to the Iraq war, as documented by the Senate Intelligence 
Committee.
  So we want to give him some authority, but we specifically rejected 
what would effectively be a department of intelligence, taking NSA, 
NRO, and NGA out of Defense, taking the counterterrorism out of the 
FBI, Information Analysis out of the Department of Homeland Security, 
et cetera, et cetera, making it a department.
  We are trying to strike a balance where you preserve the autonomy of 
those departments' line control, but you put them all together, 
particularly in that counterterrorism center, so that the director is 
hearing from all of them and is accountable, and then reports on these 
intelligence matters to the President.
  Incidentally, the Collins-Lieberman proposal does make clear--I will 
just read from section 111:

       The National Intelligence Director shall be responsible for 
     providing national intelligence--
       (1) to the President;
       (2) to the heads of other departments and agencies of the 
     executive branch;

  Also consumers, the Defense Department the largest of the consumers.

       (3) to the Chairman of the Joint Chiefs of Staff and senior 
     military commanders;
       (4) to the Senate and House of Representatives and the 
     committees thereof;
       (5) [and] to such other persons or entities as the 
     President shall direct.

  So there is no question there is a balance. But I think it is a 
balance that serves the Nation's interests well. We have power in the 
NID, but we have not broken the line of authority in other Departments.
  As I believe I heard Senator Warner say at one point, I presume the 
national intelligence director, in the exercise of his 
responsibilities, will, from time to time, bring with him to advise the 
President the head of the CIA, the head of the Homeland Security 
Department, whoever seems relevant on a given occasion, but to say that 
for intelligence there is one person ultimately accountable, and that 
is the national intelligence director.
  Mr. SESSIONS. Well, I thank the Senator. I can see the concept there. 
I guess in my own mind I am having difficulty understanding why we 
should not raise up the CIA director and make sure that entity 
exercises the power that it is supposed to have now. It is supposed to 
be the central intelligence center for the country. And just to add 
another office above it has a number of problems. As Senator Warner 
said, there are agents all over the world gathering intelligence who 
are responsible directly to the CIA Director, who then is supposed to 
directly advise the President.
  So I hope we will think about this problem as we go forward. If we 
follow the model of the drug czar, I might feel a bit more comfortable. 
The drug czar, the Office of National Drug Control Policy Director, as 
I said earlier, requires that there be a written plan for combating 
illegal drugs in the United States. Every agency involved in that 
effort has to participate in drafting the plan and sign off on the plan 
when it is agreed to. And then that Director, the drug czar, reviews 
their budget request to make sure they are funding the effort in a 
coordinated way and has the ear of the President if an entity or agency 
refuses to cooperate.
  But organizations have integrity. I do not think, in general, anyone 
would argue that it is healthy governmental philosophy or political 
science to have a person the head of an agency and then people under 
him and parts of his budget be decided directly by somebody else, and 
department heads have to be approved or appointed by other people. It 
classically undermines responsibility. In America we have one 
Government. And within the Government there are three parts. There are 
the executive, judicial, and legislative branches. But we have created 
so many fiefdoms in the executive branch it is hard to hold the 
President accountable. The FBI Director has--what?--a 12-year term? So 
it is hard to hold the President responsible for these entities. And 
then you have Secretaries who do not even have control over the people 
within their agencies.
  So those are some of my concerns. As I said, it may be that 
nervousness before you sign the deed on the new house. But, again, it 
could be that some of these things may not work as well as we project 
them to at this time.
  Mr. LIEBERMAN. President, I, obviously, respect and appreciate the 
concerns that my friend from Alabama has. I want to assure him that we 
have been over this. And the two things--one, is that not just the 9/11 
Commission but a lot of folks, not universally felt, but a lot of 
people feel that the drug czar has not been all that the position could 
have been because he did not have any budget authority. He formed the 
budget but did not really have the muscle. As a matter of fact, 
Governor Kean and Congressman Hamilton, in their report, specifically 
said they did not want the national intelligence director to be like 
the drug czar.
  Second, one of the conclusions I gather from the Scowcroft Report, 
but also others, including 9/11, is that what has happened up until now 
is that the Director of Central Intelligence has basically been the 
Director of the CIA--of course, the same person--and not had the time 
or the clout to coordinate the rest of the intelligence community.
  That is part of the failure prior to September 11. That is why we 
specifically recommend breaking them in two, creating this director 
over everybody. The CIA is an important part, but there are a lot of 
other important parts. The FBI counterterrorism and the NSA, NRO, and 
NGA, as the Senator well knows, in terms of numbers of employees and 
the amount of the budget, are very big entities that, for now, have 
been too much outside the control of the Director of Central 
Intelligence.
  So as I say, we have tried to balance. In some way, it might have 
been neater to take all the pieces and put them under a new secretary 
of intelligence, but then you really would have, for instance, broken 
the chain of command in the Defense Department.
  We didn't want to do that. We are trying to have a balance to say 
when it comes to intelligence, there is one person accountable, and 
that is the national intelligence director.
  I thank the Senator. I think this kind of discussion is very 
important to getting all of us to a point where we can not only proceed 
with the amendments but go ahead and ultimately next week adopt the 
bill and have a good feeling about it. Hopefully, we can lead the 
Senator from Alabama over his buyer's anxiety right now.
  Mr. SESSIONS. It is a difficult thing. I remember the story very 
distinctly. There was an attempt to merge the FBI and DEA in the early 
1980s. I wrote Associate Attorney General Giuliani a letter suggesting 
what should be merged is DEA and Alcohol, Tobacco, and Firearms. I saw 
him not long after that and he said: Jeff, we can't even merge agencies 
within the Department of Justice, don't you know? To merge an agency in 
Treasury with one of Justice is impossible.
  While it is weird that we in the Congress and the President of the 
United States are not capable of merging agencies, as a practical 
matter, it is very difficult to do these things. I don't think most 
people realize how our Government really functions. It has great 
points. Some of the best people I have ever known serve in our 
Government. But there are problems in making it efficient.
  I thank the managers for their leadership and hard work.
  Mr. LIEBERMAN. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. LIEBERMAN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LIEBERMAN. Mr. President, I ask unanimous consent that the 
pending amendment be temporarily set aside.
  The PRESIDING OFFICER. Without objection, it is so ordered.

[[Page S10247]]

                   Modification to Amendment No. 3807

  Mr. LIEBERMAN. Mr. President, I call up again amendment No. 3807 
offered by Senator McCain and myself.
  The PRESIDING OFFICER. The amendment is now pending.
  Mr. LIEBERMAN. I thank the Chair.
  Mr. President, I am pleased to send to the desk a modification to the 
amendment which is essentially a change of one word. I believe having 
made that one-word change, this amendment implements another section of 
the 9/11 Commission Report and is acceptable on both sides.
  I thank my dear friend and colleague, Senator Collins, for all the 
work we have done together on this amendment, and with other 
stakeholders who had some concerns about the amendment, generally 
supported it, and we have worked them all out.
  The PRESIDING OFFICER. The amendment will be so modified.
  The modification is as follows:

     of applicants for such licenses or identification cards.
       (C) Time requirement.--The process described in 
     subparagraph (A) shall be conducted in a timely manner to 
     ensure that--
       (i) any recommendation for a proposed rule or report is 
     provided to the Secretary of Transportation not later than 9 
     months after the date of enactment of this Act and shall 
     include an assessment of the benefits and costs of the 
     recommendation; and
       (ii) a final rule is promulgated not later than 18 months 
     after the date of enactment of this Act.
       (c) Grants to States.--
       (1) Assistance in meeting federal standards.--Beginning on 
     the date a final regulation is promulgated under subsection 
     (b)(2), the Secretary of Transportation shall award grants to 
     States to assist them in conforming to the minimum standards 
     for driver's licenses and personal identification cards set 
     forth in the regulation.
       (2) Allocation of grants.--The Secretary of Transportation 
     shall award grants to States under this subsection based on 
     the proportion that the estimated average annual number of 
     driver's * * *.

  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Mr. President, I thank my colleague from Connecticut and 
my colleague from Arizona, Senator McCain, for working with me to 
address concerns that have been raised by the National Governors 
Association regarding the provisions in the McCain-Lieberman amendment 
that dealt with the standardization of State drivers' licenses. I 
believe the change which has been made, which will require an 
assessment of the cost benefits of any new requirements, is an 
important one.
  I ask unanimous consent that two letters from the National Governors 
Association be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                National Governors


                                                  Association,

                                  Washington, DC, October 1, 2004.
     Hon. Susan Collins,
     U.S. Senate,
     Washington, DC.
       Dear Senator Collins: On behalf of the nation's Governors I 
     am writing to thank you for your efforts in negotiating a 
     compromise on amendment language regarding minimum standards 
     for state driver's licenses. I know that you share Governors' 
     concerns regarding the security and integrity of state 
     driver's license and identification processes and appreciate 
     the difficulties that federal mandates, particularly unfunded 
     mandates, placed on states.
       Due in large part to your concern regarding the mandates in 
     the McCain/Lieberman driver's license amendment, NGA was able 
     to make suggestions to improve the measure. We understand 
     that a provision has been added to require that the 
     negotiated rulemaking committee perform an assessment of the 
     benefits and costs of its recommendations. This change is 
     essential to help ensure that the federal government provides 
     adequate funding to states to implement the required 
     mandates.
       Governors are committed to working cooperatively with the 
     federal government to develop and implement realistic, 
     achievable standards that will enhance efforts to prevent 
     document fraud and other illegal activity related to the 
     issuance of driver's licenses and identification documents. 
     We appreciate your willingness to work with states to address 
     our concerns. With all the changes included in the amendment, 
     it will provide a reasonable compromise for addressing this 
     issue.
       Thank you again for your consideration and assistance. We 
     look forward to working with you during conference.
           Sincerely,
                                             Raymond C. Scheppach,
     Executive Director.
                                  ____

                                                National Governors


                                                  Association,

                                  Washington, DC, October 1, 2004.
     Hon. John McCain,
     U.S. Senate,
     Washington, DC.
     Hon. Joseph I. Lieberman,
     U.S. Senate,
     Washington, DC.
       Dear Senator McCain and Senator Lieberman: Governors share 
     your concerns regarding the security and integrity of state 
     driver's license and identification processes. While NGA 
     opposes federal mandates on states, particularly unfunded 
     mandates, we appreciate your willingness to work with states 
     to improve your amendment regarding minimum requirements for 
     state driver's licenses. As you know, NGA strongly opposes 
     the more proscriptive driver's license mandate provisions 
     under consideration in the House.
       It is my understanding that your original amendment has 
     been modified to include two important changes: (1) 
     clarification that the standards that will be set in the 
     rulemaking process will initially apply only to newly-issued 
     and reissued driver's licenses; and (2) a requirement that 
     state elected officials, including Governors, serve on the 
     negotiated rulemaking committee. In addition, we request that 
     a provision be added to require that the negotiated 
     rulemaking committee perform an assessment of the annual 
     benefits and costs of its recommendations.
       The first two changes are vital to ensuring that the 
     minimum requirements established under the amendment are 
     workable, do not unnecessarily interfere with existing state 
     laws and improvements, and benefit from the expertise and 
     knowledge of state officials. Likewise, the last change is 
     essential to help ensure that the federal government provides 
     adequate funding to states to implement the required 
     mandates.
       Governors are committed to working cooperatively with the 
     federal government to develop and implement realistic, 
     achievable standards that will enhance efforts to prevent 
     document fraud and other illegal activity related to the 
     issuance of driver's licenses and identification documents. 
     We appreciate your willingness to work with states to address 
     our concerns. If all three changes are included in the 
     amendment it will provide a reasonable compromise for 
     addressing this issue.
       Thank you again for your consideration and assistance.
           Sincerely,
                                             Raymond C. Scheppach,
                                               Executive Director.

  Ms. COLLINS. Mr. President, I urge adoption of the modified 
amendment.
  The PRESIDING OFFICER. Is there further debate?
  Without objection, the amendment is agreed to.
  The amendment (No. 3807), as modified, was agreed to.
  Ms. COLLINS. I thank the Chair.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. BROWNBACK. Mr. President, I thank my colleagues for their work on 
intelligence reform. I want to make a few remarks on the intelligence 
reform bill.
  I am supportive of the overall efforts of the Governmental Affairs 
Committee, what my colleague from Kansas, Senator Roberts, and my 
colleague from West Virginia, Senator Rockefeller, are doing as well on 
intelligence reform, and I want to support this overall effort.
  Before I proceed, it is important to underscore why this is such an 
important debate in the United States, especially when it is so deeply 
engaged in many places around the world and particularly in the Middle 
East and Iraq. In the context of the underlying bill, we need to make 
sure we clearly understand this.
  There is some public uncertainty regarding these issues. As the 
debate showed last night, we have fundamental differences even between 
President Bush and Senator Kerry. But both agree, in my opinion, why 
the U.S. commitment to Iraq is absolutely essential and why we must not 
fail in Iraq or in this effort to reform our national intelligence.
  For purposes of discussion, I recommend a rereading of Osama bin 
Laden's declaration of war against the Americans. He issued this in 
1998. It is in the 9/11 Commission Report and it is chilling, but it 
tells you what is at stake in this debate.
  He says this, and this is a direct quote from that declaration of 
war:

       The Defence Secretary of the Crusading Americans had said 
     that the explosions at Riyadh and Al-Khobar had taught him 
     one lesson: that is not to withdraw when attacked by cowardly 
     terrorists.

  bin Laden continues:

       We say to the Defence Secretary that his talk could induce 
     a grieving mother to laughter! And it shows the fears that 
     have enveloped you all. Where was this courage of yours when 
     the explosion in Beirut took place in 1983 . . . You were 
     transformed into scattered bits and pieces: 241 soldiers were 
     killed, most of them Marines.


[[Page S10248]]


  bin Laden continues:

       When tens of your soldiers were killed in minor battles and 
     one American pilot was dragged in the street of Mogadishu, 
     you left the area in disappointment, humiliation, and defeat, 
     carrying your dead with you.
       Clinton appeared in front of the whole world threatening 
     and promising revenge, but these threats were merely a 
     preparation for withdrawal. You had been disgraced by Allah 
     and you withdraw; the extent of your impotence and weaknesses 
     became very clear.

  As bin Laden had explained earlier in the declaration:

       Efforts should be concentrated on destroying, fighting, and 
     killing the (American) enemy until, by the grace of Allah, it 
     is completely defeated.

  The task is stated quite simply by bin Laden:

       Killing Americans.

  In June 2002, bin Laden spokesman, Suleiman Abu Gheith, placed this 
statement on the al-Qaida Web site:

       We have the right to kill 4 million Americans--2 million of 
     them children--and to exile twice as many and wound and 
     cripple hundreds of thousands.

  He said that:

       We have the right to kill 4 million Americans--2 million of 
     them children. . . .

  What can we do to forestall these promised attacks? According to bin 
Laden, if we follow what he says, we can forestall these promised 
attacks if ``America should abandon the Middle East, convert to Islam 
and end the immorality and godlessness of its society and culture,'' 
for according to bin Laden, ``It is saddening to tell you that you are 
the worst civilization witnessed by the history of mankind.''
  That is what we fight, and that is what we must stand strong against 
and be as strong and as organized as we possibly can and have as good 
intelligence as we possibly can to fight these fanatics.
  These terrorists are fanatics. They are wrong about America, and 
America will fight. They may be fanatics--and they are--but James 
Schlesinger reminded us earlier this year in the Foreign Relations 
Committee that they are deadly serious and thoroughly persistent.
  We have to therefore anticipate we will be engaged in this global war 
on terrorism for years to come and we must not waiver in this effort.
  As Osama himself has said:

       When the people see a strong horse and a weak horse, they 
     naturally gravitate towards the strong horse.

  Therefore, we as a nation and as a body must do everything within our 
means to demonstrate that we are not the weak horse. That is why 
retreat before we have successfully stabilized Iraq is not an option. 
Nothing was more dramatically visible throughout the Middle East and 
elsewhere of our retreat than were those earlier retreats cited by 
Osama bin Laden.
  The debate over Iraq will continue, even after the election, 
regarding the timing of our move into Iraq, but that is a moot issue. 
We are there now and our soldiers are doing the best they can under 
difficult circumstances. We will bring them home, but make no mistake 
about the fact that we are anything but united in our determination to 
persevere and to prevail in Iraq. Success is the only acceptable course 
of action.
  How then are we to be successful in sustaining order and stability in 
Iraq and bringing order to the chaos that the terrorists can 
potentially produce around the world? Only by embracing certain 
fundamental realities. First and foremost, establishing reasonable 
security is the prerequisite for achieving the goals of political 
stability. We are doing that in Iraq and we are doing that in 
Afghanistan. It is slow going and it is difficult, and there will be 
bumps along the way.
  Second, neither the American nor the coalition forces can by 
themselves impose security on Iraq. Iraqis themselves must provide 
indispensable support and their own security. Only Iraqis can gather 
the intelligence to identify the regime remnants and foreign terrorists 
who must be largely neutralized before adequate security can be 
assured.
  Moreover, it will be essential for Iraqi security forces to be the 
principal elements in rooting out terrorists and destroying their 
cells, with the coalition military increasingly in a supporting role.
  Similarly, America must take charge of its own security in a way that 
is consistent with the changed realities in our post-9/11 world. This 
legislation we are debating, the first major overhaul of the 
intelligence system, is a major step in that direction. We have the 
capability, the ability, and the motive--our national security--to do 
this now and to do it right.
  As my colleague Senator Kyl from Arizona said yesterday, the problem 
before 9/11 was not due to too much intelligence. The problem obviously 
arose because we did not have enough intelligence, smart intelligence, 
creative intelligence. We could not gather enough information in 
a timely way to put together all of the possibilities in order to 
connect the dots, in order to predict that a particular kind of attack 
was going to occur on that day.

  We have had a lot of good, constructive suggestions, from many 
places, from the 9/11 Commission, from the Senate Intelligence 
Committee, the great work of its chairman and my colleague Senator Pat 
Roberts from Kansas, from the administration, from the work of the 
Governmental Affairs Committee, Senator Rockefeller also on the 
Intelligence Committee, from other commissions in trying to understand 
why we did not have enough intelligence and why we could not put it all 
together ahead of time.
  Many of the recommendations of the Commission and legislative 
solutions in the proposed bill try to correct that problem of not 
having enough good intelligence and knowing precisely what we need to 
do with the intelligence once we have it.
  Most importantly, we need to find a way of bringing the creativity 
and imagination back into the intelligence business. For too long, the 
system has been hampered by bureaucracy that by design is risk averse 
and unwilling to take the offensive. As Senator Kyl mentioned the other 
day, if we look back at President Clinton's directives to the 
intelligence community, he tried to be forward leaning, especially with 
regard to al-Qaida and Osama bin Laden. But even though the President 
himself seemed to say we have to do everything we can to try to get 
these guys, he ran into bureaucratic barriers. Repeatedly, efforts were 
made to bring to his attention operations that would have either 
improved our intelligence or operationally deal with al-Qaida and Osama 
bin Laden, but they were shot down by various portions or places within 
the bureaucracy or lawyers within the system. If someone tried to do 
something, somebody else said this is too risky, we cannot do it.
  We have to change that mentality. That was why the 9/11 Commission, 
the Senate Intelligence Committee, and many other observers have said 
we have to get out of this paralyzing risk-averse environment where 
people are afraid somebody is looking over their shoulders, is going to 
jump on them if they do anything that is the least bit out of the 
ordinary or risky. We have to get this bureaucratic mindset out because 
our very security depends on it.
  I thank the chairman of the Governmental Affairs Committee, Senator 
Collins, for her great work on this, and the ranking member, Senator 
Lieberman. I appreciate the important work of my colleagues Senator 
Roberts and Senator Rockefeller, and I hope that we will speedily get 
to a resolution so we can pass this important bill soon and change the 
dynamic and make a safer America.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Mr. President, I thank the Senator from Kansas for his 
generous comments and for presenting a very compelling case for passing 
this legislation, a case that says we cannot delay; the stakes are too 
high; the issues are too compelling in the war against terrorism. I 
thank him for his support and for his hard work on this very important 
issue.
  I ask unanimous consent that the pending amendment be set aside.
  The PRESIDING OFFICER. Without objection, it is so ordered.


 Amendments Nos. 3798, 3799, 3800, 3911, 3912, 3932, 3864, 3772, 3813 
                           and 3717, en bloc

  Ms. COLLINS. Mr. President, I have a number of amendments from both 
sides of the aisle that have been cleared by both of the managers of 
the bill. I ask unanimous consent that we proceed to the consideration 
of the following amendments, en bloc: Coleman

[[Page S10249]]

amendment 3798, Coleman amendment 3799, Coleman amendment 3800, Snowe 
amendment 3911, Snowe amendment 3912, Snowe amendment 3932, Frist 
amendment 3864, Bingaman amendment 3772, Reed of Rhode Island amendment 
3813, and Feinstein amendment 3717.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
amendments are pending.
  Ms. COLLINS. I ask unanimous consent that the amendments be agreed to 
en bloc and that the motions to reconsider be laid upon the table.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendments were agreed to, as follows:


                           amendment no. 3798

(Purpose: To amend section 510 of the Homeland Security Act of 2002 to 
      ensure widespread access to the Information Sharing Network)

       At the appropriate place, insert the following:

     SEC. __. URBAN AREA COMMUNICATIONS CAPABILITIES.

       Section 510 of the Homeland Security Act of 2002, as added 
     by this Act, is amended by inserting ``, and shall have 
     appropriate and timely access to the Information Sharing 
     Network described in section 206(c) of the National 
     Intelligence Reform Act of 2004'' after ``each other in the 
     event of an emergency''.


                           amendment no. 3799

  (Purpose: To require the enterprise architecture and implementation 
   plan for the Information Sharing Network to include equipment and 
              training requirements and utilization costs)

       On page 137, line 20, strike ``and'' and all that follows 
     through ``(9)'' on line 21, and insert the following:
       (9) an estimate of training requirements needed to ensure 
     that the Network will be adequately implemented and property 
     utilized;
       (10) an analysis of the cost to State, tribal, and local 
     governments and private sector entities for equipment and 
     training needed to effectively utilize the Network; and
       (11)


                           amendment no. 3800

 (Purpose: To find that the United States needs to implement the 9/11 
Commission's recommendation to adopt a unified incident command system 
   and significantly enhance communications connectivity among first 
                              responders)

       At the appropriate place, insert the following:
       (1) The United States needs to implement the 
     recommendations of the National Commission on Terrorist 
     Attacks Upon the United States to adopt a unified incident 
     command system and significantly enhance communications 
     connectivity between and among civilian authorities, local 
     first responders, and the National Guard. The unified 
     incident command system should enable emergency managers and 
     first responders to manage, generate, receive, evaluate, 
     share, and use information in the event of a terrorist attack 
     or a significant national disaster.


                           amendment no. 3911

    (Purpose: To require a report on the methodologies utilized for 
                    National Intelligence Estimates)

       On page 210, between lines 22 and 23, insert the following:

     SEC. 336. NATIONAL INTELLIGENCE COUNCIL REPORT ON 
                   METHODOLOGIES UTILIZED FOR NATIONAL 
                   INTELLIGENCE ESTIMATES.

       (a) Report.--Not later than 180 days after the date of the 
     enactment of this Act, the National Intelligence Council 
     shall submit to Congress a report that includes the 
     following:
       (1) The methodologies utilized for the initiation, 
     drafting, publication, coordination, and dissemination of the 
     results of National Intelligence Estimates (NIEs).
       (2) Such recommendations as the Council considers 
     appropriate regarding improvements of the methodologies 
     utilized for National Intelligence Estimates in order to 
     ensure the timeliness of such Estimates and ensure that such 
     Estimates address the national security and intelligence 
     priorities and objectives of the President and the National 
     Intelligence Director.
       (b) Form.--The report under subsection (a) shall be 
     submitted in an unclassified form, but may include a 
     classified annex.
       On page 210, line 23, strike ``336.'' and insert ``337.''.


                           amendment no. 3912

(Purpose: To require an evaluation of the effectiveness of the National 
                        Counterterrorism Center)

       On page 210, between lines 22 and 23, insert the following:

     SEC. 336. NATIONAL INTELLIGENCE DIRECTOR REPORT ON NATIONAL 
                   COUNTER- TERRORISM CENTER.

       (a) Report.--Not later than one year after the date of the 
     establishment of the National Counterterrorism Center under 
     section 143, the National Intelligence Director shall submit 
     to Congress a report evaluating the effectiveness of the 
     Center in achieving its primary missions under subsection (d) 
     of that section.
       (b) Elements.--The report under subsection (a) shall 
     include the following:
       (1) An assessment of the effectiveness of the National 
     Counterterrorism Center in achieving its primary missions.
       (2) An assessment of the effectiveness of the authorities 
     of the Center in contributing to the achievement of its 
     primary missions, including authorities relating to personnel 
     and staffing, funding, information sharing, and technology.
       (3) An assessment of the relationships between the Center 
     and the other elements and components of the intelligence 
     community.
       (4) An assessment of the extent to which the Center 
     provides an appropriate model for the establishment of 
     national intelligence centers under section 144.
       (c) Form.--The report under subsection (a) shall be 
     submitted in an unclassified form, but may include a 
     classified annex.


                           amendment no. 3932

   (Purpose: Relating to alternative analyses of intelligence by the 
                        intelligence community)

       On page 153, between lines 2 and 3, insert the following:

     SEC. 207. ALTERNATIVE ANALYSES OF INTELLIGENCE BY THE 
                   INTELLIGENCE COMMUNITY.

       (a) Sense of Congress.--It is the sense of Congress that 
     the National Intelligence Director should consider the 
     advisability of establishing for each element of the 
     intelligence community an element, office, or component whose 
     purpose is the alternative analysis (commonly referred to as 
     a ``red-team analysis'') of the information and conclusions 
     in the intelligence products of such element of the 
     intelligence community.
       (b) Report.--(1) Not later than one year after the date of 
     the enactment of this Act, the National Intelligence Director 
     shall submit to Congress a report on the actions taken to 
     establish for each element of the intelligence community an 
     element, office, or component described in subsection (a).
       (2) The report shall be submitted in an unclassified form, 
     but may include a classified annex.


                           amendment no. 3864

 (Purpose: To extend section 145(c) of the Aviation and Transportation 
                             Security Act)

       At the appropriate place insert the following:
       Section 145(c) of the Aviation and Transportation Security 
     Act (49 U.S.C. 40101 note) is amended by striking ``more 
     than'' and all that follows through ``after'' and inserting 
     ``more than 48 months after''.


                           amendment no. 3772

(Purpose: To establish the position of Chief Scientist of the National 
                        Intelligence Authority)

       On page 45, between lines 10 and 11, insert the following:
       (11) The Chief Scientist of the National Intelligence 
     Authority.
       On page 45, line 11, strike ``(11)'' and insert ``(12)''.
       On page 45, line 14, strike ``(12)'' and insert ``(13)''.
       On page 59, between lines 14 and 15, insert the following:

     SEC. 131. CHIEF SCIENTIST OF THE NATIONAL INTELLIGENCE 
                   AUTHORITY.

       (a) Chief Scientist of National Intelligence Authority.--
     There is a Chief Scientist of the National Intelligence 
     Authority who shall be appointed by the National Intelligence 
     Director.
       (b) Requirement Relating to Appointment.--An individual 
     appointed as Chief Scientist of the National Intelligence 
     Authority shall have a professional background and experience 
     appropriate for the duties of the Chief Scientist.
       (c) Duties.--The Chief Scientist of the National 
     Intelligence Authority shall--
       (1) act as the chief representative of the National 
     Intelligence Director for science and technology;
       (2) chair the National Intelligence Authority Science and 
     Technology Committee under subsection (d);
       (3) assist the Director in formulating a long-term strategy 
     for scientific advances in the field of intelligence;
       (4) assist the Director on the science and technology 
     elements of the budget of the National Intelligence 
     Authority; and
       (5) perform other such duties as may be prescribed by 
     Director or by law.
       (d) National Intelligence Authority Science and Technology 
     Committee.--(1) There is within the Office of the Chief 
     Scientist of the National Intelligence Authority a National 
     Intelligence Authority Science and Technology Committee.
       (2) The Committee shall be composed of the principal 
     science officers of the National Intelligence Program.
       (3) The Committee shall--
       (A) coordinate advances in research and development related 
     to intelligence; and
       (B) perform such other functions as the Chief Scientist of 
     the National Intelligence Authority shall prescribe.

       On page 59, line 15, strike ``131.'' and insert ``132.''.

       On page 202, line 16, strike ``131(b)'' and insert 
     ``132(b)''.


                           amendment no. 3813

  (Purpose: To find that risk assessments and protective measures for 
 liquefied natural gas marine terminals should be included in the plan 
       of the Secretary of Homeland Security to protect critical 
                            infrastructure)

       At the appropriate place, insert the following:

[[Page S10250]]

     SEC. __. LIQUEFIED NATURAL GAS MARINE TERMINALS.

       Congress finds that plans developed by the Department of 
     Homeland Security to protect critical energy infrastructure 
     should include risk assessments and protective measures for 
     existing and proposed liquefied natural gas marine terminals.


                           amendment no. 3717

  (Purpose: To provide that the Intelligence Community Reserve Corps 
        shall have a personnel strength level authorized by law)

       On page 39, strike lines 8 through 11 and insert the 
     following:
       (c) Personnel Strength Level.--Congress shall authorize the 
     personnel strength level for the National Intelligence 
     Reserve Corps for each fiscal year.


                    Amendment No. 3771, as Modified

  Ms. COLLINS. Mr. President, I ask unanimous consent that the pending 
amendment be set aside and that we proceed to the consideration of the 
Bingaman-Domenici amendment 3771, as modified. I send the modification 
to the desk.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Maine [Ms. Collins], for Mr. Bingaman and 
     Mr. Domenici, , proposes an amendment numbered 3771, as 
     modified.

  The amendment, as modified, is as follows:

   (Purpose: To authorize employees of Federally Funded Research and 
 Development Centers and certain employees of the Department of Energy 
  national laboratories to be eligible for the staff of the National 
     Counterterrorism Center and the national intelligence centers)

       On page 91, between lines 12 and 13, insert the following:
       (C) Employees of Federally Funded Research and Development 
     Centers (as that term is defined in part 2 of the Federal 
     Acquisition Regulation), including employees of the 
     Department of Energy national laboratories who are associated 
     with field intelligence elements of the Department of Energy, 
     shall be eligible to serve under contract or other mechanism 
     with the National Counterterrorism Center under this 
     paragraph.
       On page 98, between lines 21 and 22, insert the following:
       (C) Employees of Federally Funded Research and Development 
     Centers (as that term is defined in part 2 of the Federal 
     Acquisition Regulation), including employees of the 
     Department of Energy national laboratories who are associated 
     with field intelligence elements of the Department of Energy, 
     shall be eligible to serve under contract or other mechanism 
     with a national intelligence center under this paragraph.

  Mr. LIEBERMAN. Mr. President, since World War II, our national 
laboratories, primarily serving Energy and Defense Department missions, 
have been the Nation's repository of expertise on nuclear weapons and 
other national security and technical issues. Although many of these 
national laboratories are known as Federal Funded Research and 
Development Centers, or FFRDC's, and are federally financed, lab 
employees are not Federal employees. They are employees of the 
contractors who operate these laboratories. This amendment would make 
employees of the FFRDC's eligible to serve at the National 
Counterterrorism Center and other national intelligence centers.
  I agree with the sponsors of this amendment that if the national 
intelligence director, or NID, determines that he or she needs to tap 
the experts employed at our FFRDC's to help staff these centers, then 
he or she should be able to do so. But I also want to make it clear, 
that it is my understanding that we are not creating a new mission for 
the FFRDC's or authorizing the creation of a new FFRDC for this 
purpose. Use of these employees would be subject to the availability of 
funds to the NID, and would still be subject to the Federal conflict of 
interest provisions and the Federal Acquisition Regulations. Finally, 
nothing in this amendment is intended to circumvent staff year ceilings 
established by law for Defense Department-sponsored FFRDC's or any 
other FFRDC's.
  Ms. COLLINS. Mr. President, I ask unanimous consent that the 
modification be agreed to, that the amendment, as modified, be agreed 
to, and that the motion to reconsider be laid upon the table.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment (No. 3771), as modified, was agreed to.


                           Amendment No. 3756

  Ms. COLLINS. Mr. President, I ask unanimous consent that the pending 
amendment be set aside and that the Senate now proceed to the immediate 
consideration of the Graham-Durbin amendment No. 3756.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will please report.
  The legislative clerk read as follows:

       The Senator from Maine [Ms. Collins], for Mr. Graham of 
     Florida, proposes an amendment numbered 3756.

  The amendment is as follows:

 (Purpose: To establish additional education and training requirements 
                for the National Intelligence Authority)

       On page 108, between lines 8 and 9, insert the following:

     SEC. 153. ADDITIONAL EDUCATION AND TRAINING REQUIREMENTS.

       (a) Findings.--Congress makes the following findings:
       (1) Foreign language education is essential for the 
     development of a highly-skilled workforce for the 
     intelligence community.
       (2) Since September 11, 2001, the need for language 
     proficiency levels to meet required national security 
     functions has been raised, and the ability to comprehend and 
     articulate technical and scientific information in foreign 
     languages has become critical.
       (b) Linguistic Requirements.--(1) The National Intelligence 
     Director shall--
       (A) identify the linguistic requirements for the National 
     Intelligence Authority;
       (B) identify specific requirements for the range of 
     linguistic skills necessary for the intelligence community, 
     including proficiency in scientific and technical 
     vocabularies of critical foreign languages; and
       (C) develop a comprehensive plan for the Authority to meet 
     such requirements through the education, recruitment, and 
     training of linguists.
       (2) In carrying out activities under paragraph (1), the 
     Director shall take into account education grant programs of 
     the Department of Defense and the Department of Education 
     that are in existence as of the date of the enactment of this 
     Act.
       (3) Not later than one year after the date of the enactment 
     of this Act, and annually thereafter, the Director shall 
     submit to Congress a report on the requirements identified 
     under paragraph (1), including the success of the Authority 
     in meeting such requirements. Each report shall notify 
     Congress of any additional resources determined by the 
     Director to be required to meet such requirements.
       (4) Each report under paragraph (3) shall be in 
     unclassified form, but may include a classified annex.
       (c) Professional Intelligence Training.--The National 
     Intelligence Director shall require the head of each element 
     and component within the National Intelligence Authority who 
     has responsibility for professional intelligence training to 
     periodically review and revise the curriculum for the 
     professional intelligence training of the senior and 
     intermediate level personnel of such element or component in 
     order to--
       (1) strengthen the focus of such curriculum on the 
     integration of intelligence collection and analysis 
     throughout the Authority; and
       (2) prepare such personnel for duty with other departments, 
     agencies, and element of the intelligence community.
  Ms. COLLINS. Mr. President, I ask unanimous consent that the 
amendment be agreed to and that the motion to reconsider be laid upon 
the table.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment (No. 3756) was agreed to.
  Ms. COLLINS. Mr. President, as I indicated, those amendments have all 
been worked out. They have been cleared on both sides. We are making 
progress on this bill. There have been a great number of amendments 
filed. I encourage all Senators to work closely with the managers of 
the bill to allow us to proceed to consider this bill on Tuesday. We 
have a great deal of work to be done before that time, but we made 
progress today.
  I also thank those Senators who came forward with their amendments 
today. Shortly, I will have an announcement about the voting schedule 
for Monday. We do expect to have a number of stacked votes in the mid 
to late afternoon. We are working on that list even as we speak.


                           Amendment No. 3803

  Ms. COLLINS. Mr. President, on behalf of Senator Cornyn, I send an 
amendment to the desk.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The legislative clerk read as follows.

       The Senator from Maine (Ms. Collins), for Mr. Cornyn, 
     proposes an amendment numbered 3803.

  The amendment is as follows:

(Purpose: To provide for enhanced criminal penalties for crimes related 
                          to alien smuggling)

       At the end of the bill, add the following:

             TITLE IV--HUMAN SMUGGLING PENALTY ENHANCEMENT

     SEC. 401. SHORT TITLE.

       This title may be cited as the ``Human Smuggling Penalty 
     Enhancement Act of 2004''.

[[Page S10251]]

     SEC. 402. ENHANCED PENALTIES FOR ALIEN SMUGGLING.

       Section 274(a) of the Immigration and Nationality Act (8 
     U.S.C. 1324(a)) is amended--
       (1) in paragraph (1)--
       (A) in subparagraph (A)--
       (i) in clause (i)--

       (I) by striking ``knowing that a person is an alien, 
     brings'' and inserting ``knowing or in reckless disregard of 
     the fact that a person is an alien, brings'';
       (II) by striking ``Commissioner'' and inserting ``Under 
     Secretary for Border and Transportation Security''; and
       (III) by inserting ``and regardless of whether the person 
     bringing or attempting to bring such alien to the United 
     States intended to violate any criminal law'' before the 
     semicolon;

       (ii) in clause (iv), by striking ``or'' at the end;
       (iii) in clause (v)--

       (I) in subclause (I), by striking ``, or'' and inserting a 
     semicolon;
       (II) in subclause (II), by striking the comma and inserting 
     ``; or''; and
       (III) by inserting after subclause (II) the following:

       ``(III) attempts to commit any of the preceding acts; or''; 
     and
       (iv) by inserting after clause (v) the following:
       ``(vi) knowing or in reckless disregard of the fact that a 
     person is an alien, causes or attempts to cause such alien to 
     be transported or moved across an international boundary, 
     knowing that such transportation or moving is part of such 
     alien's effort to enter or attempt to enter the United States 
     without prior official authorization;''; and
       (B) in subparagraph (B)--
       (i) in clause (i)--

       (I) by striking ``or (v)(I)'' and inserting ``, (v)(I), or 
     (vi)''; and
       (II) by striking ``10 years'' and inserting ``20 years'';

       (ii) in clause (ii), by striking ``5 years'' and inserting 
     ``10 years''; and
       (iii) in clause (iii), by striking ``20 years'' and 
     inserting ``35 years'';
       (2) in paragraph (2)--
       (A) in the matter preceding subparagraph (A)--
       (i) by inserting ``, or facilitates or attempts to 
     facilitate the bringing or transporting,'' after ``attempts 
     to bring''; and
       (ii) by inserting ``and regardless of whether the person 
     bringing or attempting to bring such alien to the United 
     States intended to violate any criminal law,'' after ``with 
     respect to such alien''; and
       (B) in subparagraph (B)--
       (i) in clause (ii), by striking ``, or'' and inserting a 
     semicolon;
       (ii) in clause (iii), by striking the comma at the end and 
     inserting ``; or'';
       (iii) by inserting after clause (iii), the following:
       ``(iv) an offense committed with knowledge or reason to 
     believe that the alien unlawfully brought to or into the 
     United States has engaged in or intends to engage in 
     terrorist activity (as defined in section 
     212(a)(3)(B)(iv)),''; and
       (iv) in the matter following clause (iv), as added by this 
     subparagraph, by striking ``3 nor more than 10 years'' and 
     inserting ``5 years nor more than 20 years''; and
       (3) in paragraph (3)(A), by striking ``5 years'' and 
     inserting ``10 years''.

     SEC. 403. AMENDMENT TO SENTENCING GUIDELINES RELATING TO 
                   ALIEN SMUGGLING OFFENSES.

       (a) Directive to United States Sentencing Commission.--
     Pursuant to its authority under section 994(p) of title 18, 
     United States Code, and in accordance with this section, the 
     United States Sentencing Commission shall review and, as 
     appropriate, amend the Federal Sentencing Guidelines and 
     related policy statements to implement the provisions of this 
     title.
       (b) Requirements.--In carrying out this section, the United 
     States Sentencing Commission shall--
       (1) ensure that the Sentencing Guidelines and Policy 
     Statements reflect--
       (A) the serious nature of the offenses and penalties 
     referred to in this title;
       (B) the growing incidence of alien smuggling offenses; and
       (C) the need to deter, prevent, and punish such offenses;
       (2) consider the extent to which the Sentencing Guidelines 
     and Policy Statements adequately address whether the 
     guideline offense levels and enhancements for violations of 
     the sections amended by this title--
       (A) sufficiently deter and punish such offenses; and
       (B) adequately reflect the enhanced penalties established 
     under this title;
       (3) maintain reasonable consistency with other relevant 
     directives and sentencing guidelines;
       (4) account for any additional aggravating or mitigating 
     circumstances that might justify exceptions to the generally 
     applicable sentencing ranges;
       (5) make any necessary conforming changes to the Sentencing 
     Guidelines; and
       (6) ensure that the Sentencing Guidelines adequately meet 
     the purposes of sentencing under section 3553(a)(2) of title 
     18, United States Code.

  Ms. COLLINS. I ask unanimous consent the amendment be laid aside.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 3768

  Ms. COLLINS. Mr. President, I send an amendment to the desk on behalf 
of the Senator from Montana, Mr. Baucus.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Maine (Ms. Collins), for Mr. Baucus, for 
     himself and Mr. Roberts, proposes an amendment numbered 3768.

  The amendment is as follows:

  (Purpose: To require an annual report on the allocation of funding 
 within the Office of Foreign Assets Control of the Department of the 
                               Treasury)

       At the end, add the following new section:

     SEC. 353. ANNUAL REPORT ON THE ALLOCATION OF RESOURCES WITHIN 
                   THE OFFICE OF FOREIGN ASSETS CONTROL.

       (a) Sense of Congress.--It is the sense of Congress that 
     the Secretary of the Treasury should allocate the resources 
     of the Office of Foreign Assets Control to enforce the 
     economic and trade sanctions of the United States in a manner 
     that enforcing such sanctions--
       (1) against al Qaeda and groups affiliated with al Qaeda is 
     the highest priority of the Office;
       (2) against members of the insurgency in Iraq is the second 
     highest priority of the Office; and
       (3) against Iran is the third highest priority of the 
     Office.
       (b) Requirement for Annual Report.--Not later than 180 days 
     after the date of enactment of this Act, and annually 
     thereafter, the Secretary of the Treasury, in consultation 
     with the National Intelligence Director, shall submit to 
     Congress a report on the allocation of resources within the 
     Office of Foreign Assets Control.
       (c) Content of Annual Report.--An annual report required by 
     subsection (b) shall include--
       (1) a description of--
       (A) the allocation of resources within the Office of 
     Foreign Assets Control to enforce the economic and trade 
     sanctions of the United States against terrorist 
     organizations and targeted foreign countries during the 
     fiscal year prior to the fiscal year in which such report is 
     submitted; and
       (B) the criteria on which such allocation is based;
       (2) a description of any proposed modifications to such 
     allocation; and
       (3) an explanation for any such allocation that is not 
     based on prioritization of threats determined using 
     appropriate criteria, including the likelihood that--
       (A) a terrorist organization or targeted foreign country--
       (i) will sponsor or plan a direct attack against the United 
     States or the interests of the United States; or
       (ii) is participating in or maintaining a nuclear, 
     biological, or chemical weapons development program; or
       (B) a targeted foreign country--
       (i) is financing, or allowing the financing, of a terrorist 
     organization within such country; or
       (ii) is providing safe haven to a terrorist organization 
     within such country.
       (d) Effective Date.--Notwithstanding section 341 or any 
     other provision of this Act, this section shall take effect 
     on the date of the enactment of this Act.

  Ms. COLLINS. Mr. President, I ask unanimous consent the amendment be 
set aside.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. COLLINS. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will please call the roll.
  The legislative clerk proceeded to call the roll.
  Ms. COLLINS. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Sessions). Without objection, it is so 
ordered.


                    Amendment No. 3768, As Modified

  Ms. COLLINS. Mr. President, I ask unanimous consent that Baucus 
amendment No. 3768 be modified with the change at the desk.
  The PRESIDING OFFICER. Without objection, the amendment is modified.
  The amendment (No. 3768), as modified, is as follows:

       At the end, add the following new section:

     SEC. 353. ANNUAL REPORT ON THE ALLOCATION OF RESOURCES WITHIN 
                   THE OFFICE OF FOREIGN ASSETS CONTROL.

       (a) Sense of Congress.--It is the sense of Congress that 
     the Secretary of the Treasury is not currently according 
     emerging threats to the United States the proper priority and 
     should reallocate the current resources of the Office of 
     Foreign Assets Control to enforce the economic and trade 
     sanctions of the United States in a manner that enforcing 
     such sanctions substantially increases the priority given 
     to--
       (1) al Qaeda and groups affiliated with al Qaeda;
       (2) members of the insurgency in Iraq; and
       (3) Iran.
       (b) Requirement for Annual Report.--Not later than 180 days 
     after the date of enactment of this Act, and annually 
     thereafter,

[[Page S10252]]

     the Secretary of the Treasury, in consultation with the 
     National Intelligence Director, shall submit to Congress a 
     report on the allocation of resources within the Office of 
     Foreign Assets Control.
       (c) Content of Annual Report.--An annual report required by 
     subsection (b) shall include--
       (1) a description of--
       (A) the allocation of resources within the Office of 
     Foreign Assets Control to enforce the economic and trade 
     sanctions of the United States against terrorist 
     organizations and targeted foreign countries during the 
     fiscal year prior to the fiscal year in which such report is 
     submitted; and
       (B) the criteria on which such allocation is based;
       (2) a description of any proposed modifications to such 
     allocation; and
       (3) an explanation for any such allocation that is not 
     based on prioritization of threats determined using 
     appropriate criteria, including the likelihood that--
       (A) a terrorist organization or targeted foreign country--
       (i) will sponsor or plan a direct attack against the United 
     States or the interests of the United States; or
       (ii) is participating in or maintaining a nuclear, 
     biological, or chemical weapons development program; or
       (B) a targeted foreign country--
       (i) is financing, or allowing the financing, of a terrorist 
     organization within such country; or
       (ii) is providing safe haven to a terrorist organization 
     within such country.
       (d) Effective Date.--Notwithstanding section 341 or any 
     other provision of this Act, this section shall take effect 
     on the date of the enactment of this Act.

  Ms. COLLINS. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Ms. COLLINS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           amendment no. 3903

  Ms. COLLINS. Mr. President, I ask unanimous consent to set the 
pending amendment aside and call up the Stevens amendment No. 3903.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Maine [Ms. Collins], for Mr. Stevens, Mr. 
     Inouye, Mr. Warner, and Mr. Kyl, proposes an amendment 
     numbered 3903.

  The amendment is as follows:

   (Purpose: To strike section 201, relating to public disclosure of 
                         intelligence funding)

       On page 115, strike line 15 and all that follows through 
     page 115, line 25.

  Ms. COLLINS. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DeWINE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DeWINE. I ask unanimous consent to proceed in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________