[Congressional Record Volume 150, Number 125 (Wednesday, October 6, 2004)]
[Senate]
[Pages S10476-S10488]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                NATIONAL INTELLIGENCE REFORM ACT OF 2004

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration of S. 2845, which the clerk will report.
  The assistant 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:

       Kyl Amendment No. 3801, to modify the privacy and civil 
     liberties oversight.
       Stevens Amendment No. 3839, to strike section 201, relating 
     to public disclosure of intelligence funding.
       Leahy/Grassley Amendment No. 3945, to require Congressional 
     oversight of translators employed and contracted for by the 
     Federal Bureau of Investigation.
       Reid (for Harkin) Amendment No. 3821, to modify the 
     functions of the Privacy and Civil Liberties Oversight Board.
       Roberts Amendment No. 3742, 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.
       Stevens Amendment No. 3827, to strike section 206, relating 
     to information sharing.
       Stevens Amendment No. 3840, to strike the fiscal and 
     acquisition authorities of the National Intelligence 
     Authority.
       Stevens Amendment No. 3882, to propose an alternative 
     section 141, relating to the Inspector General of the 
     National Intelligence Authority.
       Warner Amendment No. 3876, to preserve certain authorities 
     and accountability in the implementation of intelligence 
     reform.
       Levin Modified Amendment No. 3809, to exempt military 
     personnel from certain personnel transfer authorities.
       Levin Amendment No. 3810, to clarify the definition of 
     National Intelligence Program.
       Stevens Amendment No. 3830, to modify certain provisions 
     relating to the Central Intelligence Agency.
       Warner Amendment No. 3875, to clarify the definition of 
     National Intelligence Program.
       Reid (for Leahy) Amendment No. 3913, to address enforcement 
     of certain subpoenas.
       Reid (for Leahy) Amendment No. 3916, to strengthen civil 
     liberties protections.
       Reid (for Leahy) Amendment No. 3915, to establish criteria 
     for placing individuals on the consolidated screening watch 
     list of the Terrorist Screening Center.
       Collins (for Frist) Modified Amendment No. 3895, to 
     establish the National Counterproliferation Center within the 
     National Intelligence Authority.
       Collins (for Frist) Amendment No. 3896, to include certain 
     additional Members of Congress among the congressional 
     intelligence committees.

  The PRESIDING OFFICER. Under the previous order, the time until 11:30

[[Page S10477]]

a.m. will be equally divided for debate between the two managers and 15 
minutes of that time will be under the control of Senator Warner and 
Senator Levin.
  The Senator from Maine.
  Ms. COLLINS. Mr. President, I yield 10 minutes to the Senator from 
Alaska. I then hope we can proceed to four pending amendments of the 
Senator from Alaska.
  Mr. REID. On this time, on behalf of Senator Lieberman, I yield 10 
minutes to the Senator from Illinois.
  The PRESIDING OFFICER. The Senator from Alaska is recognized for 10 
minutes, to be followed by the Senator from Illinois for 10 minutes.


  Amendments Nos. 3830, As Modified, 3840, As Modified, and 3882, As 
                           Modified, En Bloc

  Mr. STEVENS. I have sent three of the pending amendments to the desk 
in an amended form. These changes have been coordinated with the 
managers of the bill and I believe they are acceptable to them.
  The first amendment, No. 3840, revises the acquisition authority of 
the national intelligence director and that is at the desk. The second 
amendment, No. 3830, modifies a certain provision related to the 
Central Intelligence Agency and that amendment is at the desk. 
Amendment No. 3882 revises the provisions related to the inspector 
general of the National Intelligence Authority. It conforms these 
provisions to those in the Inspector General Act and avoids duplication 
of the inspector general efforts across the impacted agencies. That 
amendment is at the desk.
  I appreciate the courtesy of the managers of the bill and their 
staffs, and their willingness to engage in dialog on these amendments 
with me and my staff.
  We are still working to resolve differences over amendment No. 3827 
regarding the information-sharing network to address some of the 
concerns identified by the White House and others. We hope to reach a 
resolution on that language this morning, but, as I said, I thank the 
managers of the bill for their help in resolving these issues. It has 
been a matter of great concern to those of us who have worked with the 
intelligence community for quite some time.
  I now ask unanimous consent that amendments Nos. 3840, 3830, and 3882 
be amended as noted in the revised amendments that I have sent to the 
desk; that the amendments be considered en bloc and adopted en bloc, 
and that the motions to reconsider be laid upon the table.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  The amendments, as modified, were agreed to, as follows:


                           amendment no. 3830

       On page 28, beginning on line 16, strike ``of the National 
     Intelligence Director''.
       On page 43, beginning on line 1, strike ``OF THE NATIONAL 
     INTELLIGENCE DIRECTOR''.
       On page 43, beginning on line 5, strike ``of the National 
     Intelligence Director'' and insert ``for the National 
     Intelligence Director and the Director of the Central 
     Intelligence Agency''.
       On page 43, line 14, add at the end the following: ``Any 
     use of funds from the Reserve shall be subject to the 
     direction and approval of the National Intelligence Director 
     and in accordance with procedures issued by the Director.''.
       On page 43, beginning on line 17, strike ``of the National 
     Intelligence Director''.
       On page 141, between lines 15 and 16, insert the following:
       (H) the Director of the Central Intelligence Agency or his 
     designee;
       On page 141, line 16, strike ``(H)'' and insert ``(I)''.
       On page 141, line 18, strike ``(I)'' and insert ``(J)''.
       On page 141, line 21, strike ``(J)'' and insert ``(K)''.
       On page 194, beginning on line 23, strike ``of the National 
     Intelligence Director''.


                           amendment no. 3840

       On page 109, line 6, insert the words ``within the National 
     Intelligence Program'' after the words ``for each 
     intelligence program''.
       On page 109, strike lines 12 and 13 and insert the 
     following:
       (B) serve as exclusive milestone decision authority, except 
     that with respect to Department of Defense programs the 
     Director shall serve as milestone decision authority jointly 
     with the Secretary of Defense or the designee of the 
     Secretary; and
       On page 110, strike lines 8 through 18 and insert the 
     following:
       (4) If the National Intelligence Director and the Secretary 
     of Defense are unable to reach agreement on a milestone 
     decision under this subsection, the Director shall assume 
     milestone decision authority subject to review by the 
     President at the request of the Secretary.


                           amendment no. 3882

       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) Inspector General of National Intelligence Authority.--
     There is an Inspector General of the National Intelligence 
     Authority. The Inspector General of the National Intelligence 
     Authority and the Office of the Inspector General of the 
     National Intelligence Authority shall be subject to the 
     provisions of the Inspector General Act of 1978 (5 U.S.C. 
     App.).
       (b) Amendments to Inspector General Act of 1978  Relating 
     to Inspector General of National Intelligence Authority.--The 
     Inspector General Act of 1978 (5 U.S.C. App.) is amended--
       (1) by redesignating section 8J as section 8K; and
       (2) by inserting after section 8I the following new 
     section:


  ``special provisions concerning the national intelligence authority

       ``Sec. 8J. (a)(1) Notwithstanding the last 2 sentences of 
     section 3(a), the Inspector General of the National 
     Intelligence Authority (in this section referred to as the 
     `Inspector General') shall be under the authority, direction, 
     and control of the National Intelligence Director (in this 
     section referred to as the `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.
       ``(2) With respect to information described in paragraph 
     (1), the Director may prohibit the Inspector General from 
     initiating, carrying out, or completing any investigation, 
     inspection, or audit, or from issuing any subpoena, if the 
     Director determines that such prohibition is necessary to 
     preserve the vital national security interests of the United 
     States.
       ``(3) If the Director exercises the authority under 
     paragraph (1) or (2), the Director shall submit to the 
     congressional intelligence committees an appropriately 
     classified statement of the reasons for the exercise of such 
     authority within 7 days.
       ``(4) The Director shall advise the Inspector General at 
     the time a report under paragraph (3) 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.
       ``(5) The Inspector General may submit to the congressional 
     intelligence committees any comments on a report of which the 
     Inspector General has notice under paragraph (4) that the 
     Inspector General considers appropriate.
       ``(b) In addition to the qualifications for the appointment 
     of the Inspector General under section 3(a), the Inspector 
     General shall be appointed on the basis of prior experience 
     in the field of intelligence or national security.
       ``(c)(1)(A) In addition to the duties and responsibilities 
     of the Inspector General specified elsewhere in this Act, the 
     Inspector General shall, for the purpose stated in 
     subparagraph (B), provide policy direction for, and conduct, 
     supervise, and coordinate audits and investigations relating 
     to--
       ``(i) the coordination and collaboration among elements of 
     the intelligence community within the National Intelligence 
     Program; and
       ``(ii) the coordination and collaboration between elements 
     of the intelligence community within the National 
     Intelligence Program and other elements of the intelligence 
     community.
       ``(B) The Inspector General shall conduct the activities 
     described in subparagraph (A) to ensure that the coordination 
     and collaboration referred to in that paragraph is conducted 
     efficiently and in accordance with applicable law and 
     regulation.
       ``(C) Before undertaking any investigation, inspection, or 
     audit under subparagraph (A), the Inspector General shall 
     consult with any other inspector general having 
     responsibilities regarding an element of the intelligence 
     community whose activities are involved in the investigation, 
     inspection, or audit for the purpose of avoiding duplication 
     of effort and ensuring effective coordination and 
     cooperation.
       ``(2) In addition to the matters of which the Inspector 
     General is required to keep the Director and Congress fully 
     and currently informed under section 4(a), the Inspector 
     General shall--
       ``(A) keep the Director and Congress fully and currently 
     informed concerning--
       ``(i) violations of civil liberties and privacy that may 
     occur in the programs and operations of the National 
     Intelligence Authority; and
       ``(ii) violations of law and regulations, violations of 
     civil liberties and privacy, and fraud and other serious 
     problems, abuses, and deficiencies that may occur in the 
     coordination and collaboration referred to in clauses (i) and 
     (ii) of paragraph (1)(A); and
       ``(B) report the progress made in implementing corrective 
     action with respect to the matters referred to in 
     subparagraph (A).
       ``(3) To enable the Inspector General to fully and 
     effectively carry out the duties and responsibilities 
     specified in this Act, the Inspector General and the 
     inspectors general of the other elements of the intelligence 
     community shall coordinate their internal audit,

[[Page S10478]]

     inspection, and investigative activities to avoid duplication 
     and ensure effective coordination and cooperation.
       ``(4) The Inspector General shall 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.
       ``(d)(1) Each semiannual report prepared by the Inspector 
     General under section 5(a) shall--
       ``(A) include an assessment of the effectiveness of all 
     measures in place in the National Intelligence Authority for 
     the protection of civil liberties and privacy of United 
     States persons; and
       ``(B) be transmitted by the Director to the congressional 
     intelligence committees.
       ``(2) In addition the duties of the Inspector General and 
     the Director under section 5(d)--
       ``(A) the Inspector General shall report immediately to the 
     Director whenever the Inspector General becomes aware of 
     particularly serious or flagrant problems, abuses, or 
     deficiencies relating to--
       ``(i) the coordination and collaboration among elements of 
     the intelligence community within the National Intelligence 
     Program; and
       ``(ii) the coordination and collaboration between elements 
     of the intelligence community within the National 
     Intelligence Program and other elements of the intelligence 
     community; and
       ``(B) the Director shall transmit to the congressional 
     intelligence committees each report under subparagraph (A) 
     within 7 calendar days of receipt of such report, together 
     with such comments as the Director considers appropriate.
       ``(3) Any report required to be transmitted by the Director 
     to the appropriate committees or subcommittees of Congress 
     under section 5(d) shall also be transmitted, within the 7-
     day period specified in that section, to the congressional 
     intelligence committees.
       ``(4) In the event that--
       ``(A) the Inspector General is unable to resolve any 
     differences with the Director affecting the execution of the 
     duties or responsibilities of the Inspector General;
       ``(B) an investigation, inspection, or audit carried out by 
     the Inspector General should focus on any current or former 
     National Intelligence Authority official who holds or held a 
     position in the Authority that is subject to appointment by 
     the President, by and with the advice and consent of the 
     Senate, including such a position held on an acting basis;
       ``(C) a matter requires a report by the Inspector General 
     to the Department of Justice on possible criminal conduct by 
     a current or former official described in subparagraph (B);
       ``(D) the Inspector General receives notice from the 
     Department of Justice declining or approving prosecution of 
     possible criminal conduct of any current or former official 
     described in subparagraph (B); or
       ``(E) the Inspector General, after exhausting all possible 
     alternatives, is unable to obtain significant documentary 
     information in the course of an investigation, inspection, or 
     audit,
     the Inspector General shall immediately notify and submit a 
     report on such matter to the congressional intelligence 
     committees.
       ``(5) Pursuant to title V of the National Security Act of 
     1947 (50 U.S.C. 413 et seq.), the Director shall submit to 
     the congressional intelligence committees any report or 
     findings and recommendations of an investigation, inspection, 
     or audit conducted by the office which has been requested by 
     the Chairman or Ranking Minority Member of either committee.
       ``(e)(1) In addition to the other authorities of the 
     Inspector General under this Act, the Inspector General shall 
     have access to any personnel of the National Intelligence 
     Authority, or any employee of a contractor of the Authority, 
     whose testimony is needed for the performance of the duties 
     of the Inspector General. Whenever such access is, in the 
     judgment of the Inspector General, unreasonably refused or 
     not provided, the Inspector General shall report the 
     circumstances to the Director without delay.
       ``(2) Failure on the part of any employee or contractor of 
     the National Intelligence Authority to cooperate with the 
     Inspector General shall be grounds for appropriate 
     administrative actions by the Director, including loss of 
     employment or termination of an existing contractual 
     relationship.
       ``(3) Whenever, in the judgment of the Director, an element 
     of the intelligence community that is part of the National 
     Intelligence Program has unreasonably refused or not provided 
     information or assistance requested by the Inspector General 
     under paragraph (1) or (3) of section 6(a), the Director 
     shall so inform the head of the element, who shall promptly 
     provide such information or assistance to the Inspector 
     General.
       ``(4) The level of classification or compartmentalization 
     of information shall not, in and of itself, provide a 
     sufficient rationale for denying the Inspector General access 
     to any materials under section 6(a).
       ``(f) In addition to the authorities and requirements in 
     section 7 regarding the receipt of complaints by the 
     Inspector General--
       ``(1) the Inspector General is authorized to receive and 
     investigate complaints or information from any person 
     concerning the existence of an activity constituting a 
     violation of laws, rules, or regulations, or mismanagement, 
     gross waste of funds, abuse of authority, or a substantial 
     and specific danger to the public health and safety; and
       ``(2) once such complaint or information has been received 
     from an employee of the Federal Government--
       ``(A) the Inspector General shall not disclose the identity 
     of the employee without the consent of the employee, unless 
     the Inspector General determines that such disclosure is 
     unavoidable during the course of the investigation or the 
     disclosure is made to an official of the Department of 
     Justice responsible for determining whether a prosecution 
     should be undertaken; and
       ``(B) no action constituting a reprisal, or threat of 
     reprisal, for making such complaint may be taken by any 
     employee in a position to take such actions, unless the 
     complaint was made or the information was disclosed with the 
     knowledge that it was false or with willful disregard for its 
     truth or falsity.
       ``(g) In this section, the terms `congressional 
     intelligence committees', `intelligence community', and 
     `National Intelligence Program' have the meanings given such 
     terms in section 2 of the National Intelligence Reform Act of 
     2004.''.
       (c) Technical and Conforming Amendments to Inspector 
     General Act of 1978.--(1)(A) Section 8H(a)(1) of the 
     Inspector General Act of 1978 (5 U.S.C. App.) is further 
     amended--
       (i) by redesignating subparagraph (C) as subparagraph (D); 
     and
       (ii) by inserting after subparagraph (B) the following new 
     subparagraph (C):
       ``(C) An employee of the National Intelligence Authority, 
     of an entity other than the Authority who is assigned or 
     detailed to the Authority, or of a contractor of the 
     Authority who intends to report to Congress a complaint or 
     information with respect to an urgent concern may report the 
     complaint or information to the Inspector General of the 
     National Intelligence Authority.''.
       (B) In support of this paragraph, Congress makes the 
     findings set forth in paragraphs (1) through (6) of section 
     701(b) of the Intelligence Community Whistleblower Protection 
     Act of 1998 (title VII of Public Law 105-272; 5 U.S.C. App. 
     8H note).
       (2) The Inspector General Act of 1978 is further amended--
       (A) in section 8K, as redesignated by subsection (b)(1) of 
     this section, by striking ``8F or 8H'' and inserting ``8F, 
     8H, 8I, or 8J''; and
       (B) in section 11--
       (i) in paragraph (1), by inserting ``the National 
     Intelligence Director;'' after ``the Attorney General;''; and
       (ii) in paragraph (2), by inserting ``the National 
     Intelligence Authority,'' after ``the National Aeronautics 
     and Space Administration,''.
       (d) Separate Budget Account.--The National Intelligence 
     Director shall, in accordance with procedures to be issued by 
     the Director in consultation with congressional intelligence 
     committees, include in the National Intelligence Program 
     budget a separate account for the Office of Inspector General 
     of the National Intelligence Authority.
       (e) Sense of Congress On Adoption of Standards of Review.--
     It is the sense of Congress that the Inspector General of the 
     National Intelligence Authority, in consultation with other 
     Inspectors General of the intelligence community and the 
     President's Council on Integrity and Efficiency, should adopt 
     standards for review and related precedent that are generally 
     used by the intelligence community for reviewing 
     whistleblower reprisal complaints made under sections 7 and 
     8J(f) of the Inspector General Act of 1978.
       On page 203, strike lines 9 through 22.
       On page 204, line 1, strike ``312.'' and insert ``311.''.

  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Mr. President, I thank the senior Senator from Alaska 
for working with Senator Lieberman and me to resolve these three 
amendments. I very much appreciate the good-faith suggestions that were 
made on both sides, and I am grateful to him for working with us to 
address his concerns.
  I think we have come up with very good suggestions, and I am pleased 
that the amendments have been adopted.
  The PRESIDING OFFICER. The Senator from Alaska.
  Mr. STEVENS. How much time do I have remaining of the 10 minutes?
  The PRESIDING OFFICER. There is 7\1/2\ minutes.


                      Weapons of Mass Destruction

  Mr. STEVENS. Mr. President, I have heard this talk about the 
inspectors and their conclusion that they have not found weapons of 
mass destruction. Seventeen times the United Nations asked Saddam 
Hussein to disclose where the weapons of mass destruction were. We know 
he used them on the Kurds. We know he used them in Iran. We know we 
have evidence he was trying to build additional weapons but the 
inspectors kept asking to return. They asked again and again to return 
so they could find out if there was evidence of where he had those 
weapons of mass destruction.

[[Page S10479]]

  Now they are before the Armed Services Committee this morning and 
they are going to testify that they have found ``no evidence'' of the 
weapons of mass destruction. We had the same conclusion with regard to 
the Iraqi air force. We were told Saddam had destroyed a series of 
airplanes. Later we found them buried in the Iraqi desert--a whole 
series of airplanes--the whole airplane buried. It was capable of being 
dug up, brought out of the dirt and used.
  Now, we have not found the weapons of mass destruction yet. This 
Senator believes he had them. We know he had them in the Kurd area. We 
know he used them on Iran. This idea that somehow or another the 
President or the Vice President have lied, I am tired of hearing this 
disrespect for the President and Vice President of the United States 
and I will be willing to debate any time what happened in Iraq.
  I went to Kuwait time after time, and to Saudi Arabia, and talked to 
the pilots who were flying the continuous air patrol over Iraq. Since 
the gulf war, our pilots were up there every day, and every day they 
were shot at by ground-to-air weapons that Saddam was not supposed to 
have at all.
  This idea that somehow or another the President and Vice President of 
the United States lied because they believed there were weapons of mass 
destruction there, I believe there are weapons of mass destruction 
there and I still believe there are weapons there somewhere. Where they 
have taken them, I do not know, but they have not found them. The 
inspectors kept finding enough reason to go back and go back. They went 
back 17 times.
  To say the President lied, what about those inspectors who said, We 
have to go back; we have not found them yet but we are going to find 
some more? Did they lie?
  I think there ought to be greater respect for the Presidency and the 
Vice Presidency of this country, and in this campaign. I have never 
heard such disrespect. I did not go out and campaign against President 
Clinton and say he lied, and yet we know he did. He admitted he lied 
about the matters that were before the grand jury. Now we did not go 
out and accuse the President of lying. We had a lot of discussions on 
the floor about that.
  So if we want to compare Presidents and who lied and who did not, I 
am ready any time the Democrats want to do it, but I am tired of this 
disrespect. It is time we showed respect for the system. I do not 
remember in the past when a Senator asked another Senator to yield and 
if that Senator had time, it normally would happen. At the very least 
the Senator would say: Let me finish my statement now and I will yield 
at the end of my statement. That kind of senatorial courtesy has to 
come back to the Senate.
  If the Senator wants me to yield, I will yield the remainder of my 
time.
  The PRESIDING OFFICER. Has the Senator yielded the floor?
  The Senator from Illinois.
  Mr. DURBIN. Mr. President, it is my understanding I have 10 minutes.
  The PRESIDING OFFICER. That is correct.
  Mr. DURBIN. Mr. President, let me say that----
  Mr. STEVENS. The Senator has 10 minutes on his time on the 1 hour to 
which the Senator is entitled.
  The PRESIDING OFFICER. That is correct.
  Mr. DURBIN. Mr. President, if the Senator will check the record, he 
will find that without exception I have always yielded for a question 
but I was in a difficult position because the Senator from Delaware 
wanted to speak after me. In the entire amount of time given to me, I 
would have been happy to yield.
  I think, frankly, dialog between two Senators is something perilously 
close to debate in the Senate, which we hardly ever have. I am sorry we 
did not have that opportunity, but I think we have the opportunity at 
this moment.
  What I hear from the Senator from Alaska is that we should show 
respect for the Office of the Presidency. I could not agree more. 
Whether the President is of my party or any other party, he should be 
given respect. Even if I disagree with that President, his policy or 
his statements, I am hoping that I will always be viewed as a person 
who has that respect for the Office of the Presidency. That is the 
least that is expected of every single Member of Congress, and I hope 
the people across the United States.
  Having said that, I do not believe that disagreeing with the policies 
of an administration is disrespectful. In fact, I think it is part of 
the national debate which makes America so unique.
  I do not believe it is disrespectful to say that the information 
given by the President, the Vice President, the Secretary of Defense, 
and the Secretary of State was wrong and misleading. It was. I have 
never used the word ``lie,'' nor would I because a lie means there was 
a deliberate misrepresentation. I don't have any evidence there was a 
deliberate misrepresentation. But there was a misrepresentation, at 
least in four specific elements. Let me tell you what they were.
  The administration misled the American people in believing there were 
weapons of mass destruction--an arsenal of chemical, biological, and 
nuclear weapons set to strike countries in the Middle East as well as 
the United States--in Iraq before our invasion. We know now, based on 
clear and convincing evidence, there is no indication that Saddam 
Hussein ever had these arsenals of weapons of mass destruction. So when 
the President and the administration said that to justify the invasion, 
they were wrong. The American people were misled. That is a fact.
  Point No. 2, this administration misled the American people about the 
capacity of Iraq to build nuclear weapons. Yesterday I came to the 
floor and talked about the most recent disclosure about aluminum tubes. 
The American people were misled into believing Saddam Hussein was about 
to become a nuclear power, threatening the region and the United 
States. The administration was wrong. The American people were misled.
  Point No. 3, the administration said there was linkage, and I quoted 
this morning direct quotes from Vice President Cheney. They argued 
there was linkage between Saddam Hussein and the 9/11 tragedy in 
America; that somehow Saddam Hussein and al-Qaida were consorting to 
attack the United States. We have seen repeatedly through the 9/11 
Commission Report, the Senate Intelligence Committee report, as well as 
clear statements now, today, by the Secretary of Defense, that was 
wrong. The American people were misled. That is a fact.
  These elements are facts that cannot be denied. To say the 
administration misled the American people is there for the record. I 
have not said the President lied. But I do say he gave wrong 
information to the American people, and even the President has conceded 
that fact. When the Secretary of Defense says there is no linkage, when 
the President removes the offensive words from the State of the Union 
Address, he concedes the fact that statements made before the invasion 
were misleading and they were wrong.
  Why in the world can't this administration accept that reality? Why 
do they have to cling to the fiction that was presented to the American 
people?
  The Senator from Alaska said we should show respect for the 
Presidency, and I agree. But more important, we need to show respect 
for the American people. They are the ones we serve, the President and 
every Member of Congress. We need to show them respect by giving them 
the clear, unvarnished truth so they understand the facts before we 
make critical decisions.
  We have now lost over 1,050 of our best and brightest and bravest 
American soldiers in Iraq. We lost them because we invaded that country 
before we let the inspectors do their job in Iraq, before we created a 
broad coalition of countries that would join us in this military 
effort, and here we stand today.
  Last night, Vice President Cheney said don't demean the coalition. 
Other countries stand with us. I certainly respect the fact that they 
would stand by the side of America. But make no mistake, when you open 
the morning paper, regularly, virtually every morning you learn of the 
death of another American soldier. It is American soldiers who are 
fighting and dying in Iraq in much greater numbers, even, than any 
other country I should say, and much greater numbers than I think 
should be the case.
  Had this President done the same thing his father did, gone to the 
United Nations for approval of our invasion, put together a coalition 
of nations

[[Page S10480]]

which included Arab nations--President Bush's father understood that, 
in the Persian Gulf. He knew that to bring in Arab nations as part of 
the coalition meant there would be less resentment in Arab states for 
our action. This President did not wait to bring in an Arab state to 
help us in this coalition of the willing. As a consequence, the 
resentment against the actions of the United States in the Arab world 
has been growing apace, and we have found the recruiting efforts to 
find more terrorists to not only invade Iraq and kill our soldiers but 
to spread around the world are mushrooming. Are we safer today because 
of that invasion, because we didn't build the coalition? I think not.

  I am glad Saddam Hussein is in prison. I am glad he is out of power. 
But don't diminish the cost to the United States and the fact that 
there is no end in sight to this war in Iraq.
  There was no plan from this administration to execute this war and 
protect our troops with body armor, with Humvees armored, with 
protective equipment on helicopters, and certainly we understand today, 
based on Ambassador Bremer's statements just 2 days ago, that we didn't 
have a sufficient number of troops to bring stability to the region.
  We are paying the price for those bad decisions. Statements were made 
by this administration that were wrong and misleading. Decisions were 
made that clearly evidence that we were not prepared, as we should have 
been. We are paying that price, and there is no end in sight.
  If the Senator from Alaska suggests it is disrespectful to the 
President to raise these issues, I respectfully disagree with him. It 
is our obligation to have an open, honest, national debate about the 
foreign policy of this country, which involves families far and wide in 
Illinois, Alaska, and around the United States.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Alaska.
  Mr. STEVENS. Mr. President, I am delighted to have an opportunity to 
debate with the Senator from Illinois because I listened to the 
comments he made before, comments I violently disagree with. For 
instance, in 1998, President Clinton went before the general officers 
of this Nation, officers from all of our units of the military, and he 
told them he believed Saddam Hussein had weapons of mass destruction. 
He laid down a just challenge to Saddam Hussein to come forward and 
disclose them or he believed he might have to go into Iraq himself. 
That seems to be forgotten.
  Apparently, the Senator from Illinois didn't hear the Vice President 
when he mentioned Mr. Zarqawi last night, a man who was in Iraq before 
even the problems of Afghanistan who was operating there. He is back 
there now. He had operated in Afghanistan and Pakistan, was part of the 
bad guys there. Now we know he is back in Iraq again. He is mentioned 
as being one of the senior contacts within the al-Qaida organization 
that was there before and came back again now. The Vice President has 
mentioned the contacts that existed in the al-Qaida world in Iraq.
  I still believe he was right. There is no question about it. There 
was a portion of the terrorist organization in Iraq before, and they 
are back there now.
  As far as the weapons of mass destruction, I believe at the time we 
had seen the briefings--and I am one of the eight in the Congress who 
received the same briefings the President of the United States got 
about Iraq. We got them in confidence. As a matter of fact, even the 
statement the Senator from Illinois made about Mr. Bremer, who is the 
President's representative, that is from a classified report that we 
should not be discussing on the floor. It ended up somehow being 
leaked, that one line from the report. But the report deals with the 
overall relationship of Mr. Bremer to the whole process.
  The problem is this: When we look at the Bremer situation, what 
Bremer did--we were there. We talked to him. He did want more forces 
around Baghdad. He thought there should be more. The President relied 
upon our general officers. He told me personally and he told us as we 
went to Iraq and came back from Iraq, we are doing what our general 
officers request, as far as the troop strength is concerned.

  The general officers disagreed with Bremer as to the location of 
those forces. There is no question about it. We probably should have 
had more. In my opinion, we should have been able to come through Iraq 
from the north, through Turkey, and come from the south from Kuwait, 
and had two forces moving through Iraq and squash those people over 
there.
  Instead, because of developments in Turkey, we could not go through 
Turkey. We flew our troops down to Kuwait, we took their supples all 
the way around, and when the supplies reached them they then went in, 
and instead of having forces meet in Baghdad, particularly in Saddam 
Hussein's home part of Iraq, they then come back to Baghdad, and that 
left them spread out. My memory is that the insurrection started in the 
south because the forces had gone north and we couldn't spread them 
that thin.
  People said: Send more troops. Send more troops. We heard that on the 
floor: Send more troops. The ability to maintain and supply those 
troops was a real difficult situation, particularly when all the 
support supplies were coming through Kuwait. We even started sending 
some supplies through Jordan.
  But the problem really is what happened in terms of Saddam Hussein, 
in terms of the relationship to al-Qaida, and the relationship to 
weapons of mass destruction. I stood here on the floor of the Senate 
and called Saddam Hussein a Hitler. I did that at least 9 months before 
the war started. I still believe he was a Hitler. He invaded Kuwait, 
and we had to kick him out. He was rebuilding his military within that 
area that he still maintained control of in Iraq. We had control of the 
south and north part of his country. Yet look at it in terms of the no-
fly zone we were trying to protect.
  But in terms of the part he controlled he was rebuilding his military 
because of the money that came into his hands through the ``food-for-
oil'' program.
  You can stand here, no matter what you say, and say we haven't found 
weapons of mass destruction. That is true. We haven't found them. I 
still believe there are some out there, whether they are in adjoining 
nations or buried in the ground. Whatever happened to them, he had 
them.
  To accuse the administration of misleading the public when they 
relied upon the intelligence analysts that we relied on--the same 
intelligence analysts President Clinton relied on when he made his 1998 
speech. Certainly those of us who were here supported the resolution 
that asked the President to send troops into Iraq; we believed it. When 
you look at it, if we want to get into situations when Senator Kerry 
voted against the 1991 war resolution in spite of what Iraq did in 
invading Kuwait, he voted against us going into Kuwait to liberate 
Kuwait.
  I think my friends on the other side of the aisle have been wrong for 
30 years. As a matter of fact, those on the other side of the aisle 
mainly opposed the Reagan buildup in the 1980s. I was chairman of the 
Defense Appropriations Subcommittee, and I remember those votes. Fifty 
times here we voted on amendments that were offered to try to strike 
weapons systems from the defense bill that I managed to bring to the 
floor to rebuild the military capacity of the United States. All of 
those amendments came from the other side of the aisle.
  When you look at it, when you look at the trouble, why did we have a 
shortage of intelligence? President Clinton started degrading human 
intelligence in the CIA. He denuded the intelligence system as far as 
human intelligence is concerned because he wanted to rely on the 
satellites in the air and the communications systems, electrical 
systems.
  I cannot believe we are going to get into these one-sided statements. 
I would like to have a full debate. I am sort of at a loss. I don't 
have my records. The Senator from Illinois has his records, but I don't 
have them.
  But I have a feeling that had we not denuded the CIA in the 1990s, we 
would have had better intelligence. But the information we had relied 
upon, the American public relied upon, and this Senate relied upon when 
we voted to give the President the right to go into Iraq.

[[Page S10481]]

  To say the President was wrong because he relied on the same 
intelligence we relied upon I think is a faulty argument, and it should 
not happen on the floor of the Senate in a political season where we 
are trying to destroy the reputation which the President deserves for 
having the guts to do what Clinton didn't have the guts to do.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER. There are 3\1/2\ minutes remaining.
  Mr. DURBIN. Mr. President, let me say in response to the Senator from 
Alaska before he leaves the floor--I want to let him know I want to 
respond to his comments so there will be no mistake about it.
  First, the statement that Ambassador Bremer's comments had something 
to do with classified information, what I have said on the floor was 
based upon some front pages of the newspapers. Ambassador Bremer was 
reported to have said to a private organization in a speech that one of 
the problems we have in Iraq today stems from the fact that we had an 
inadequate number of troops in the field to bring stability, to stop 
the looting and violence immediately after the deposition of Saddam 
Hussein. That is not classified. It is on the front pages of the 
newspapers. Ambassador Bremer has now backed away from those comments. 
But the fact is he made them, and many believe the same thing--that we 
had an inadequate number of troops at the right and appropriate moment 
and are paying the price today because the insurgency has grown.
  Second, last night Vice President Cheney, and this morning the 
Senator from Alaska, make a great deal about the so-called Ayman al-
Zawahiri link, a ruthless terrorist who is affiliated with al-Qaida. 
The Vice President made the statement last night that the Senator made 
today--that there was a linkage between Ayman al-Zawahiri and Saddam 
Hussein and, therefore, proof positive al-Qaida and Saddam Hussein were 
working together justified the invasion.
  I commend to my colleagues and those following the debate this 
morning's report from MSNBC.com from Washington:

       A CIA report has found no conclusive evidence that former 
     Iraqi President Saddam Hussein harbored Ayman al-Zawahiri 
     which the Bush administration asserted before the invasion of 
     Iraq.

  This is a fact. It comes from the President's own CIA. They continue 
to build these straw men to justify an invasion when the facts don't 
back them up--no weapons of mass destruction, no nuclear arsenal, no 
evidence of bringing in yellowcake from Niger, no evidence of linkage 
with al-Qaida. And they cling tenaciously and stubbornly to these 
assertions even though the facts defeat them.
  How can you trust an administration that will not accept the facts 
and reality to prepare a defense for America? Shouldn't the defense of 
our Nation be based on reality rather than theory? Shouldn't it be 
based on sound intelligence instead of political ideology? I would 
think so.
  Any President who comes to this office with a predetermined set of 
ideas on what we need to do to protect America regardless of the facts 
is not serving our country well. I hope both political parties would 
acknowledge that.


                           Amendment No. 3801

  Let me also say we are about to consider in the early parts of the 
debate this morning an amendment by Senator Kyl to the underlying bill 
on intelligence reform. I oppose this amendment. I hope my colleagues 
will join me in opposing it.
  We have come together with a bipartisan agreement on the civil 
liberties board. It is a board which has been created by both sides of 
the aisle working to implement the recommendations in the 9/11 
Commission report. What Senator Kyl is trying to do is take away some 
important powers and responsibilities of this board.
  For example, he wants to eliminate the board's standard of review. 
This is the standard that the board uses to take a look at proposed 
expansions of the government's power and make sure they don't infringe 
on rights. What Senator Kyl suggests is we take away the standard of 
review from the civil liberties board. That would frankly create a ship 
above water.

  We need to make sure this board has a standard of review so they can 
look at government actions and decide whether they go too far. That is 
what the 9/11 Commission suggested and that is what we should stick to.
  Senator Kyl's amendment also would remove the Board's subpoena power. 
He said he would be concerned that this civil liberties board would be 
subpoenaing members of our Government, agents of our Government, to 
come in from all over the world and give them evidence. I hope the 
Senator from Arizona will read this provision more carefully and more 
closely because the subpoena authority in this bill is very narrow. It 
only applies to people outside of the Government.
  The Kyl amendment would also eliminate the requirement of the board 
to inform the public about its activities in a manner consistent with 
protecting classified information. This directly contradicts the 
recommendation of the 9/11 Commission. We are talking about protecting 
the American public's rights, liberties, and freedoms. It is essential 
that the work of the civil liberties board be made public so the 
American people can understand what they are doing and whether our 
Government has gone too far. Why the Senator from Arizona would want to 
keep secrecy and a veil over this activity, I don't understand.
  I certainly hope we reject the Kyl amendment which would demolish the 
Collins-Lieberman civil liberties board, a bipartisan creation. It 
would upset the delicate balance between government powers and civil 
liberties this bill strikes. I urge my colleagues to oppose the 
amendment.
  I yield the floor and 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. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. I ask unanimous consent that the time for the quorum call 
be charged equally to both sides.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. 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. REID. 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. REID. Is there still time on both sides under the order that has 
been entered?
  The PRESIDING OFFICER. There is 20 minutes on each side.
  Mr. REID. The Senator from Delaware gets 5 minutes.
  Mr. CARPER. I thank the minority leader for yielding to me.
  The PRESIDING OFFICER. The Senator from Delaware is recognized.
  Mr. CARPER. I thank the Chair.
  (The remarks of Mr. CARPER pertaining to the introduction of S. 2899 
are located in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  Mr. REID. I suggest the absence of a quorum and I ask the time be 
charged equally.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. REID pertaining to the submission of S. Res. 448 
are printed in today's Record under ``Submitted Resolutions.'')
  The PRESIDING OFFICER. The Senator from Vermont is recognized.
  Mr. LEAHY. Parliamentary inquiry: Was there time reserved for the 
Senator from Vermont prior to the vote?
  The PRESIDING OFFICER. No.
  Mr. LEAHY. Mr. President, I seek recognition in my own right.
  Ms. COLLINS. Mr. President, how much time does the Senator need? I 
believe 30 minutes has been reserved for

[[Page S10482]]

Senator Warner and Senator Levin of the hour and a half of debate that 
was available this morning.
  Mr. LEAHY. Mr. President, am I correct that we are planning to vote 
at 11:30 on the Kyl amendment?
  The PRESIDING OFFICER. That is the order.
  Mr. LEAHY. Mr. President, I will speak for 3 to 4 minutes on the Kyl 
amendment.
  Mr. REID. Mr. President, if I may say to my distinguished friend, the 
Senator from Vermont, time was evenly divided, and the minority's time 
is gone. We were not aware of the Senator from Vermont needing time.
  I ask the Senator from Maine, does she wish to make a statement? All 
the time left is hers.
  Ms. COLLINS. Mr. President, I do intend to speak, so we need to 
reserve time. I am also concerned that the two Senators who 
specifically requested time have not had an opportunity to speak.
  Mr. REID. They have had an opportunity but have not taken it. We need 
to get this vote off near the time. The Senator from Vermont needs 3 or 
4 minutes.
  I ask unanimous consent that the Senator from Vermont be recognized 
for 4 minutes and that time also be added to that of the majority, so 
there would be an extra 8 minutes. We cannot extend it past that time 
because there are things people need to do.
  Ms. COLLINS. Mr. President, I have no objection.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Vermont is recognized.
  Mr. LEAHY. Mr. President, I thank the Senator from Nevada and the 
Senator from Maine.
  Mr. President, I rise today to discuss the provisions in the Collins-
Lieberman bill establishing a privacy and civil liberties oversight 
board and to respond to some of the disturbing discourse and efforts to 
undermine those provisions.
  It is unquestioned that one of the key recommendations of the 9/11 
Commission was the creation of a civil liberties board to fill a clear 
void in government structure for addressing these concerns. The 
Commission discovered that there was ``no office within the government 
whose job it is to look across the government at the actions we are 
taking to protect ourselves to ensure that liberty concerns are 
appropriately considered.'' In response to this vacuum, the Commission 
explicitly 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 we recommend 
and the commitment the government makes to defend our civil 
liberties.'' The 9/11 Commission concluded: ``We must find ways of 
reconciling security with liberty, since the success of one helps 
protect the other.''
  The Commission was certainly right. There is no doubt that such a 
board is needed given the heightened civil liberty tensions created by 
the realities of terrorism and modern warfare. The tools of the 
information age include precise data-gathering, networked databases, 
and tracking and sensing technologies impervious to the common eye. The 
legal tools are similarly powerful, ranging from substantial 
capabilities under the USA PATRIOT Act and under our immigration laws. 
As the Commission noted, ``[e]ven without the changes we recommend, the 
American public has vested enormous authority in the U.S. government.'' 
In an even more pointed and ominous assessment of these powers, Vice 
Chairman Hamilton noted, in a recent Judiciary Committee hearing, these 
developments are ``an astounding intrusion in the lives of ordinary 
Americans that (are) routine today in government.''
  One of my colleagues suggested that this bill is solely to strengthen 
our intelligence tools and ``not a bill regarding our civil 
liberties.'' But this is a myopic view. You cannot divorce one from the 
other. Security and liberty are always in tension in a free society, 
and that is readily apparent today. It is our vigilant duty to work 
hard at striking the right balance. We must enhance our capabilities, 
but with such powerful tools comes heightened responsibility, and the 
Commission has challenged us to take up those reins: ``This 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.''
  We have an obligation to ensure that there are mechanisms in place 
that will see to it that this power is subject to appropriate checks 
and balances and congressional oversight. An effective civil liberties 
board can help provide those checks and contribute to preserving both 
liberty and security.
  We need a civil liberties board whose members collectively can think 
critically and independently about the policies we implement as a 
nation and about how they affect our fundamental rights. The board must 
be able to participate in the policymaking process, review technology 
choices and options, peer into various agencies and assess actions, 
review classified materials and investigate concerns. This board must 
have the versatility to work closely with government officials, but at 
the same time it must be sufficiently independent to assess those 
government policies without fear, favor or compromise. Given these 
significant responsibilities, it is equally important that the board be 
accountable to Congress and the American people.
  The civil liberties board outlined in the Collins-Lieberman bill 
makes great strides toward meeting these goals. It represents a true 
bipartisan effort from conception to introduction. I was pleased to 
work with these Senators along with Senator Durbin to make this civil 
liberties board the kind of board that would honor the 9/11 
Commission's intent. It should not go without notice that Commissioners 
Slade Gorton and Richard Ben-Veniste issued a bipartisan statement 
that, ``A civil liberties board of the kind we recommend can be found 
in the Collins-Lieberman bill in the Senate.''
  This legislation establishes a bipartisan board that would have 
access to the documents and information needed to assess our 
counterterrorism policies that affect the vital civil liberties of the 
American people. It provides a mechanism for them to work closely with 
administration officials, including working with a network of newly 
created department-level privacy and civil liberty officers, whose 
proximity to decision makers will ensure that these concerns are 
considered from the earliest stages of policy formation. It requires 
the board to report to Congress on a regular basis, and--without 
compromising classified information--to inform the public about 
policies that affect their vital liberties.
  Unfortunately, Senator Kyl's amendment 3801 attempts to gut the 
carefully crafted, bipartisan civil liberty and privacy provisions that 
are the hallmark of the Collins-Lieberman bill. It is inconsistent with 
the recommendations of the 9/11 Commission and would undermine the 
civil liberties that we cherish.
  First, Senator Kyl's amendment attempts to cut off the information 
flow that would ensure that the board could accurately, reliably and 
effectively advise on the impact of policies on privacy and civil 
liberties. It would also eliminate the board's ability to subpoena 
people outside of the government who may have important information, 
such as private sector data collectors working on behalf of the 
government. It would also eliminate the privacy officers, as well as 
public hearings and reports to the public.
  It is clear that the Commission intended for the board to have access 
to the information that it needed in order to effectively assess 
policy. In a recent House Judiciary Committee hearing, Vice Chairman 
Hamilton said, ``The key requirement is that government agencies must 
be required to respond to the board.'' He went on to note that the 
Commission itself had subpoena power, and ``if we had not had it, our 
job would have been much, much more difficult.'' I would note that the 
Collins-Lieberman bill does not go as far as to mandate subpoena power 
over government officials, but rather only over relevant non-government 
persons.

  Given the secrecy and civil liberty concerns that have been pervasive 
in this administration, we should be enhancing information flow and 
dialogue, not eliminating it. It is ironic that at the same time that 
the administration has been making it more difficult for the public to 
learn what government agencies are up to, the government and its 
private sector partners have been

[[Page S10483]]

quietly building more and more databases to learn and store more 
information about the American people themselves.
  Second, Senator Kyl's amendment would eliminate a provision that 
gives the board important guidance on how to review requests by the 
government for new and enhanced powers. This is a critical omission. In 
order to balance liberty and security, we need to ensure that the board 
will be looking at policies through a prism that would allow for 
heightened security protection, while also ensuring that intrusions are 
not disproportionate to benefits, or that they would unduly undermine 
privacy and civil liberties. This guidance would also keep the board 
focused on the right priorities and prevent the mission creep that some 
fear.
  Contrary to assertions that this would be a ``citizen board'' gone 
wild that would ``haul any agent in anywhere in the world and grill 
him,'' this board would consist of highly accomplished members who have 
the appropriate clearance to access classified information, who have 
extensive professional expertise on civil liberty and privacy issues, 
and who have the knowledge of how to view these concerns in the context 
of important anti-terrorism objectives. Again, its subpoena power would 
be limited to non-government persons, and so could not used willy-nilly 
to drag in agents from the field.
  It simply cannot be that the government can create and implement 
policies that impinge on our liberties without having to account to 
anyone. While that may make things convenient or easy, it certainly 
does not preserve the ideals of the country we are fighting to protect. 
As the Commission reminded us, ``if our liberties are curtailed, we 
lose the values that we are struggling to defend.''
  Some have suggested that we leave this responsibility to ``federal 
agencies that are already equipped and designed for that function.'' 
But this misses precisely the point raised in the report. There is 
currently no such suitable entity that can look across government and 
offer an independent, uncompromised assessment of the impact of 
government powers on civil liberties. And I emphasize look, because 
some would suggest that we do not need a board with an affirmative 
obligation to go out and review policy. To the contrary, what we do not 
need is passivity. We need to be as vigilant about protecting our 
fundamental rights as we are in hunting down and capturing terrorists. 
It is what Commissioner Gorton, a former Republican Senator from 
Washington, described as a ``watchdog to assure maximum protection of 
individual rights and liberties in those programs.'' Similarly, 
Commissioner Hamilton has said that ``it ought to have a very tough 
investigative staff and it ought to be a very active board and 
agency.''
  Others have suggested that the administration's recent efforts are a 
suitable substitute. I strongly disagree. Rather, the Executive Order 
attempted to foist upon us an anemic civil liberties board. I and 
several of my colleagues noted in a letter to the President that the 
board was not a bipartisan or independent entity. It had no authority 
to access information and it had no accountability. It was housed in 
the Department of Justice, and it was comprised solely of 
administration officials from the law enforcement and intelligence 
communities, precisely the communities that the board would have an 
obligation to oversee. It was the proverbial case of the fox guarding 
the henhouse. This would not have resulted in a vigorous consideration 
of policy that the Commission intended.
  As the Commission noted, 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 to 
ensure protection of civil liberties. If the power is granted, there 
must be adequate guidelines and oversight to properly confine its 
use.''
  We should be looking for ways to ensure that this burden of proof 
will be met, rather than weakening oversight and accountability.
  As the 9/11 Commission noted, when it comes to security and civil 
liberties, ``while protecting our homeland, Americans should be mindful 
of threats to vital personal and civil liberties. This balancing is no 
easy task, but we must constantly strive to keep it right.''
  Senator Kyl's amendment fails to ``keep it right,'' and I urge that 
the Senate honor the spirit of the recommendations of the 9/11 
Commission, and reject it.
  Senators Collins and Lieberman have it right in their bill and we 
should not allow that to be gutted.
  I ask unanimous consent that a letter to the President from myself 
and others on this subject be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                                                      U.S. Senate,


                                   Committee on the Judiciary,

                               Washington, DC, September 21, 2004.
     Hon. George W. Bush,
     President of the United States,
     The White House, Washington, DC.
       Dear President Bush: We are writing in response to the 
     recent creation and activities of the Administration's Board 
     on Safeguarding Americans' Civil Liberties.
       One of the key recommendations of the 9/11 Commission was 
     the creation of a civil liberties board to balance the 
     enormous powers granted by the people to the government for 
     protection against terrorism. Critically, it concluded: ``We 
     must find ways of reconciling security with liberty, since 
     the success of one helps protect the other.''
       There is no doubt that such a board is needed given 
     heightened civil liberty tensions created by the realities of 
     terrorism and modem warfare. The tools of the information age 
     include precise data-gathering, networked databases, and 
     tracking and sensing technologies impervious to the common 
     eye. With such powerful tools comes heightened 
     responsibility.
       But the civil liberties board established by the August 27, 
     2004, Executive Order and the manner in which it is 
     proceeding do little to further the goal of balancing liberty 
     and security. The board resembles a presidential advisory 
     team, and not an independent, bi-partisan entity. Housed in 
     the Department of Justice, the board will be comprised solely 
     of Administration officials from the law enforcement and 
     intelligence communities, precisely the communities that the 
     board will need to oversee. In essence, this board's 
     responsibility would be to oversee itself; it is the 
     proverbial case of the fox guarding the hen house. Further, 
     the board has no meaningful investigative authority, and 
     there is no apparent role for Congress.
       While such an entity may help inform the White House of the 
     impact of Administration policies on civil liberties, it is 
     no substitute for the sort of civil liberties board that 
     would meet the 9/11 Commission's call for an ``enhanced 
     system of checks and balances to protect the precious 
     liberties that are vital to our way of life.'' Simply put, 
     the Executive Order does not establish an entity with the 
     authority, independence and accountability necessary to 
     protect civil liberties.
       Further, the board's hasty meeting, with no discussion of 
     these matters, and with no advance notice to the public, is 
     inherently inconsistent with the very characteristics of 
     openness and accountability necessary to protect civil 
     liberties. A post-meeting press release is simply not the 
     kind of open communication that will foster any trust and 
     confidence in this board's ability to protect the liberties 
     we hold dear.
       It is important that we have a civil liberties board that 
     can think critically and independently about the policies we 
     implement as a nation and how they impact our fundamental 
     rights. Choices about its composition, powers and 
     accountability should serve that goal and will need to be 
     openly discussed and carefully weighed. The board must be 
     able to participate in the policymaking process, review 
     technology choices, peer into various agencies and assess 
     actions, review classified materials, and investigate 
     concerns. In particular, the hoard will need to be 
     sufficiently independent of the Department of Justice to 
     assess its actions without compromise.
       Accountability is essential. We cannot assign a board such 
     significant responsibilities without periodically reviewing 
     its progress to ensure that its mandates are being met. 
     Regular reports to Congress and the public provide such 
     checks.
       As the 9/11 Commission noted, when it comes to security and 
     civil liberties, the ``balancing is no easy task, but we must 
     constantly strive to keep it right.'' We agree. We must do 
     this right and we must do it together. Congress is currently 
     considering various proposals to create an effective civil 
     liberties board that can achieve these goals, and we hope 
     that the Administration and its civil liberties advisors will 
     support and cooperate with Congress in its development.
           Sincerely,
     Patrick Leahy,
     Edward M. Kennedy,
     Russell D. Feingold,
       U.S. Senators.

  Mr. LEAHY. Mr. President, I retain the remainder of my time.
  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 S10484]]

  Mr. ROCKEFELLER. Mr. President, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Will the Senator suspend? Is time yielded to the Senator from West 
Virginia?
  Ms. COLLINS. Mr. President, I yield 5 minutes to the Senator from 
West Virginia.
  The PRESIDING OFFICER. The Senator from West Virginia is recognized 
for 5 minutes.
  Mr. ROCKEFELLER. Mr. President, I rise to speak in opposition to the 
amendment of my good friend from Virginia, Senator Warner. The Warner 
amendment would effectively undermine the ability of the national 
intelligence director to manage the intelligence programs by changing 
the definition in the bill of what constitutes a national intelligence 
program.
  Under the Collins-Lieberman bill, the national intelligence program 
includes all programs--all programs--projects, and activities of a 
number of national intelligence agencies, including the National 
Security Agency, the National Geospatial-Intelligence Agency, and the 
National Reconnaissance Office.
  The Collins-Lieberman bill has been carefully crafted to provide the 
new intelligence director with the consolidated budget, personnel, and 
tasking authority necessary to manage the newly defined national 
intelligence program. The Warner amendment seeks to unravel this. It is 
a major ``undoing'' amendment. It unravels these unified authorities 
under the intelligence director by giving the Secretary of Defense 
significant control over the National Security Agency, the National 
Geospatial-Intelligence Agency, and the National Reconnaissance Office.
  I specifically mention this troika of national intelligence 
agencies--NSA, NGA, and the NRO--because each agency is partially 
funded through the Joint Military Intelligence Program budget, known as 
JMIP.
  For instance, in the President's fiscal year 2005 budget request, 30 
percent of the National Geospatial-Intelligence Agency's budget comes 
from the JMIP. Similarly, hundreds of millions of dollars in the NRO 
and NSA budgets are funded through JMIP.
  The Warner amendment would eliminate these programs from the 
definition of the national intelligence program, thereby splitting the 
management of these national intelligence agencies between the national 
intelligence director and the Secretary of Defense.
  It is very important to note that these programs are not--repeat 
not--tactical military intelligence programs. The Secretary of Defense 
would retain control over these tactical military programs under the 
pending bill. So under the Collins-Lieberman bill, the national 
intelligence director, consistent with the 9/11 Commission mandate, is 
given authority over the programs and activities of these three basic 
programs.
  But now the Warner amendment would have the Senate say: Hold on, we 
do not want the director to have complete authority over these 
agencies. We want a sizable portion of their activities to be jointly 
shared, jointly managed, jointly tasked by the national intelligence 
director and the Secretary of Defense.
  That is exactly what the situation is today and why we are trying to 
change all of this. It is exactly the type of bifurcated arrangement 
the 9/11 Commission highlighted as fundamentally dysfunctional. This is 
exactly the type of crossways organizational setup that inhibits our 
intelligence community from achieving efficiency and effectiveness of 
management that we need to protect our national security. This is 
exactly the type of problem the Collins-Lieberman bill would correct.
  Adoption of the Warner amendment would strip away from the national 
intelligence director an essential ability to manage what is now an 
intelligence community in name but not in reality.
  I urge my colleagues to oppose this amendment. Mr. President, I yield 
the floor.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Mr. President, I thank the Senator from West Virginia 
for his comments.
  Mr. President, I ask unanimous consent that it be in order for the 
Senator from Arizona and the Senator from Georgia to each have 2 
minutes to discuss their amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Arizona is recognized for 2 minutes.


                           Amendment No. 3801

  Mr. KYL. Mr. President, we are going to be asking unanimous consent 
to withdraw amendment No. 3801, which is an amendment Senator Chambliss 
and I offered to deal with the problem of overlapping and redundant 
civil rights and privacy investigations, entities, or individuals that 
would be added to those that already exist to protect civil rights and 
privacy in the national intelligence director office and other offices 
of the intelligence community.
  The head of the 9/11 Commission, Philip Zelikow, the Executive 
Director, noted one of the biggest problems we have with our 
intelligence collection and analysis when he said:

       We also found--

  ``We'' meaning the 9/11 Commission--

       that the 9/11 story illustrated the danger of risk aversion 
     from constant worry of being investigated. We gave several 
     important examples of officials who overinterpreted existing 
     legal constraints for fear of exceeding their authority. We 
     were also astonished by the extent to which CIA officials, 
     beyond any others in the Government, already conduct their 
     work in a manner that anticipates and guards themselves for 
     the prospect of future investigations.

  We found this in the Intelligence Committee, and the 9/11 Commission 
found the same thing--a profound aversion to taking risks because of 
all the people looking over the shoulders of these agents, ready to 
pounce on them if they do anything wrong or make a mistake.
  What does the underlying legislation do? It exacerbates the problem 
because it requires that existing agencies of the Government either 
designate an existing officer or create a new position for privacy and 
civil liberties. Notwithstanding the fact that each Department--
Homeland Security, Health and Human Services, CIA, and others--already 
have officers with the responsibility, including an inspector general, 
chief privacy officer, and the officer for civil rights and civil 
liberties.
  In each one of these agencies, those officers currently exist. There 
is a new mandate placed on all of them, in addition to which the 
President, following the 9/11 Commission recommendation, appointed his 
own board on Safeguarding American's Civil Liberties, and the bill 
creates a privacy and civil liberties oversight board with subpoena 
power and puts under the National Intelligence Authority an officer for 
civil rights and liberties and a privacy officer, in addition to the 
already existing inspector general.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. KYL. Mr. President, I ask unanimous consent for an additional 30 
seconds.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KYL. And the creation of an ombudsman. This is overkill. It is 
going to exacerbate the problem of risk aversion with having too many 
people looking over the shoulder of too many people we tasked with the 
difficult job of collecting and analyzing intelligence.
  Mr. President, 9/11 did not happen because we had too many people 
with privacy being violated or civil rights being violated. It happened 
because our intelligence was not good enough. Too many of these are 
going to impede our intelligence, and that is why we offered this 
amendment. I regret we are going to have to withdraw it, but I 
appreciate the fact that the sponsors of the legislation are committed 
to working with us in the conference to try to bring a better balance 
to the bill.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. CHAMBLISS. Mr. President, I thank my colleague from Arizona for 
his tremendous leadership on this particular issue.
  I voted yesterday with our leadership to invoke cloture on this bill, 
but, frankly, I did so reluctantly because I sympathize with the 
comments that the Senator from Alaska, Mr. Stevens, made just yesterday 
and the day before relative to the fact that we are rushing into an 
issue that is so complex that we really need to take the time to do 
this right. But I understand we are at

[[Page S10485]]

the end of this session and that we need to get this bill done and get 
it to conference. That is the only reason that Senator Kyl and I are 
willing to withdraw this amendment. Let's get it to conference and try 
to clean this up there.

  Once again, I have been reminded about the problems we have at the 
CIA under the leadership now of a new CIA Director whose hands are 
going to be tied by this particular provision that we are seeking to 
modify in this bill. We are concentrating, from an overall intelligence 
reform standpoint, on building up our collection of intelligence 
through human assets. But now with the creation of the civil liberties 
board in this bill, a political bureaucracy is being established that 
is going to be looking over the shoulder of every CIA agent around the 
world and is going to have the ability to determine whether that CIA 
agent violated the civil liberties of somebody in the prosecution of 
gathering intelligence. I think this is a very harmful provision in 
this bill.
  The Senator from Arizona has provided strong leadership on this 
issue, and I thank him for that. We need to clean up the provision of 
the bill as it relates to the civil liberties board before we destroy 
the morale of our agents in the field. While I regret we are going to 
have to withdraw the amendment at this point in time, I also am 
encouraged by the comments of the chairman, as well as Senator 
Lieberman, that they are willing to work with us as we move into 
conference. It is critical to make the necessary modifications in 
conference to ensure that our intelligence community has a free hand in 
trying to gather intelligence to protect the lives of our citizens 
without violating civil liberties, and without violating privacy 
rights. Our intelligence professionals have and will conduct their 
dangerous and important work within the framework of our laws.
  I yield the floor.
  The PRESIDING OFFICER. The Senator's time has expired.


                     Amendment No. 3801, Withdrawn

  Mr. KYL. Mr. President, I ask unanimous consent that the amendment be 
withdrawn.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Maine.
  Ms. COLLINS. Mr. President, I thank the two Senators. I understand 
their concern. This issue is going to be the subject of much 
discussion, I am sure, in the Senate-House conference. I very much 
appreciate the issues they have raised. I take them seriously, and I 
appreciate their cooperation in withdrawing the amendment. I thank my 
colleagues.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. LIEBERMAN. Mr. President, I join Senator Collins in thanking the 
Senator from Georgia and the Senator from Arizona for their support of 
the bill, for their deep commitment to national security, for raising 
the questions they have raised, which are good questions, and, frankly, 
for being willing, as we approach the final passage of this bill, to 
not press this particular concern and to allow us to go forward.
  I look forward to working with them on matters of intelligence and 
national security in the years ahead.
  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.
  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. 3742, As Modified

  Ms. COLLINS. Mr. President, I ask unanimous consent that we proceed 
to the consideration of the Roberts amendment, No. 3742, as modified.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  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.
  Mr. ROBERTS. I ask unanimous consent to call up amendment No. 3742, 
with a modification.
  The PRESIDING OFFICER. The amendment is pending.
  The amendment (No. 3742), as modified, is as follows:


                    amendment no. 3742, as modified

       On page 33, between lines 2 and 3, insert the following:

     SEC. 114. FUNDING OF INTELLIGENCE ACTIVITIES.

       (a) Funding of Activities.--(1) Notwithstanding any other 
     provision of this Act, 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)(i) the Permanent Select Committee on Intelligence and 
     the Committee on Appropriations of the House of 
     Representatives; and
       (ii) the Select Committee on Intelligence and the Committee 
     on Appropriations of the Senate;
       (B) in the case of a transfer of funds to or from, or a 
     reprogramming within, the Department of Defense--
       (i) the committees and select committees referred to in 
     subparagraph (A);
       (ii) the Committee on Armed Services of the House of 
     Representatives; and
       (iii) the Committee on Armed Services of the Senate; and
       (C) in the case of a transfer of funds to or from, or a 
     reprogramming within, the Federal Bureau of Investigation--
       (i) the committees and select committees referred to in 
     subparagraph (A);
       (ii) the Committee on the Judiciary of the House of 
     Representatives; and
       (iii) the Committee on the Judiciary 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 AMENDMENTS ON FUNDING OF INTELLIGENCE 
                   ACTIVITIES.

       Section 504 of the National Security Act of 1947 (50 U.S.C. 
     414) is amended--
       (1) in subsection (a)(3)--
       (A) in subparagraph (A), by adding ``and'' at the end;
       (B) by striking subparagraph (B); and
       (C) by redesignating subparagraph (C) as subparagraph (B); 
     and
       (2) in subsection (e), by striking paragraph (2) and 
     inserting the following new paragraph (2):
       ``(2) the term `appropriate congressional committees' 
     means--

[[Page S10486]]

       ``(A)(i) the Permanent Select Committee on Intelligence and 
     the Committee on Appropriations of the House of 
     Representatives; and
       ``(ii) the Select Committee on Intelligence and the 
     Committee on Appropriations of the Senate;
       ``(B) in the case of a transfer of funds to or from, or a 
     reprogramming within, the Department of Defense--
       ``(i) the committees and select committees referred to in 
     subparagraph (A);
       ``(ii) the Committee on Armed Services of the House of 
     Representatives; and
       ``(iii) the Committee on Armed Services of the Senate; and
       ``(C) in the case of a transfer of funds to or from, or a 
     reprogramming within, the Federal Bureau of Investigation--
       ``(i) the committees and select committees referred to in 
     subparagraph (A);
       ``(ii) the Committee on the Judiciary of the House of 
     Representatives; and
       ``(iii) the Committee on the Judiciary of the Senate; 
     and''.
       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, I thank Chairman Collins and Senator 
Lieberman for working with me to include this provision in the act. It 
preserves an important requirement from section 504 of the National 
Security Act of 1947. It is very simple: That funds appropriated for an 
intelligence activity must be specifically authorized.
  I appreciate your cooperation on this matter. It is a very simple 
amendment.
  I yield to the distinguished chairman of the Governmental Affairs 
Committee.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Mr. President, I thank Senator Roberts for offering this 
amendment. As chairman of the Senate Intelligence Committee, his 
expertise and advice on this bill have been invaluable. As he 
indicates, this preserves a requirement in section 504 of the National 
Security Act of 1947 that funds appropriated for an intelligence 
activity must also be specifically authorized before being obligated or 
expended.
  It is my understanding that other committees with interest in this 
matter have been consulted and there is no objection. I will ask for 
the yeas and nays.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. LIEBERMAN. Mr. President, I strongly support this amendment and 
thank Senator Roberts for offering it. I thank him generally for the 
many ways in which he has strengthened this bill.
  The bottom line here is this amendment will ensure that intelligence 
activities, which by their nature are classified and not subject to 
public scrutiny, receive specific review and authorization by the 
Senate and House of Representatives Intelligence Committees. It is 
another way to make clear that what we have said all along, that this 
bill does not represent an alteration of power and authority between 
the Congress and the executive branch, is in fact what happens. I thank 
the Senator and I am glad to support the amendment.
  The PRESIDING OFFICER. The yeas and nays have been requested. Is 
there a sufficient second?
  There is a sufficient second.
  The question is on agreeing to the amendment, as modified.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. REID. I announce that the Senator from North Carolina (Mr. 
Edwards) and the Senator from Massachusetts (Mr. Kerry) are necessarily 
absent.
  The PRESIDING OFFICER (Ms. Murkowski). Are there any Senators in the 
Chamber desiring to vote?
  The result was announced--yeas 98, nays 0, as follows:

                      [Rollcall Vote No. 198 Leg.]

                                YEAS--98

     Akaka
     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Cantwell
     Carper
     Chafee
     Chambliss
     Clinton
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Corzine
     Craig
     Crapo
     Daschle
     Dayton
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Durbin
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham (FL)
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hollings
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Mikulski
     Miller
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Nickles
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner
     Wyden

                             NOT VOTING--2

     Edwards
     Kerry
      
  The amendment (No. 3742), as modified, was agreed to.
  Ms. COLLINS. Madam President, I move to reconsider the vote.
  Mr. LIEBERMAN. 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 Maine.
  Ms. COLLINS. Madam President, for the information of my colleagues, I 
am going to ask unanimous consent that we go to Senator Leahy's 
amendment No. 3945. I anticipate that being accepted on a voice vote. 
Therefore, there will be no further rollcalls until 2 o'clock, for the 
information of my colleagues.
  Mr. REID. Could we make that 2:15?
  Ms. COLLINS. Madam President, I would be glad to amend the request to 
make it 2:15. I ask unanimous consent that be the order.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Vermont.


                           Amendment No. 3945

  Mr. LEAHY. Madam President, I understand my amendment regarding 
translators, No. 3945, is now before the Senate.
  The PRESIDING OFFICER. It is pending.
  Mr. LEAHY. Madam President, this is an amendment on behalf of myself 
and Senator Grassley. We did this because 3 years ago, a law was passed 
requiring the Attorney General to report on the FBI translators 
program, why it was failing, and how he is going to fix it. The 
Attorney General has never followed the law and submitted that report.
  Our amendment requires the Attorney General to submit a report on FBI 
translators within 30 days of enactment of this act.
  Senator Grassley, of course, is well known as being one of the most 
vigilant people on FBI oversight issues.
  Last week the Justice Department's Office of Inspector General 
released an unclassified version of its Audit of the FBI's Foreign 
Language Program. The report shows that despite concerns expressed for 
years by some of us in Congress and by former FBI contractors, among 
others, and despite an influx of tens of millions of dollars to hire 
new linguists, the FBI foreign language translation unit continues to 
be saddled with growing backlogs, systemic difficulties, security 
problems, too few qualified staff, and an astounding lack of 
organization.
  What is the use of taping thousands of hours of conversations of 
intelligence targets in foreign languages if we cannot translate the 
material promptly, securely, accurately and efficiently? 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.
  Almost 3 years ago, Congress required the Attorney General to report 
upon where the FBI translators program was failing and how he was going 
to fix it. The Attorney General has never submitted that report.
  To make sure that report is delayed no more, and to respond to the 
Inspector General's recommendations, Senator Grassley and I have 
offered the Translator Reports Act of 2004 as an amendment. I am proud 
to be joined in this effort by my friend from Iowa, who has been ever-
vigilant on FBI oversight issues.
  Our amendment requires the Attorney General to submit a report on FBI 
translators within 30 days of enactment of the National Intelligence 
Reform Act. It also 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.

[[Page S10487]]

  This report will allow Congress to meet the 9/11 Commission's 
directive that Congress exercise greater oversight over the 
counterintelligence and counterterrorism needs of the executive branch. 
I urge my colleagues to vote in favor of the amendment.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Madam President, I appreciate the Senator from Vermont 
working with Senator Lieberman and me. His amendment would require the 
Attorney General to submit annual reports to the House and Senate 
Judiciary Committees on the number of translators employed or 
contracted for by the FBI and other components of the Department of 
Justice, the needs of the FBI for translation services, a description 
of the implementation of quality control procedures, among other 
provisions.
  As we know, there is a serious backlog of translation in the FBI, and 
this sends a very strong message that Congress is going to be carefully 
monitoring the progress of this program.
  I urge support for the amendment.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. LIEBERMAN. Madam President, I thank the Senator from Vermont for 
this amendment. It responds to a direct call, a conclusion of the 9/11 
Commission report that the FBI did not dedicate sufficient resources to 
the surveillance and translation needs of counterterrorism agents and 
lacks sufficient translators proficient in Arabic and other key 
languages.
  The reporting requirement contained in this amendment will obviously 
help and force Congress to determine the scope of the problem and 
develop possible fixes. I thank the Senator from Vermont for his 
initiative and accept the amendment.
  The PRESIDING OFFICER. Is there further debate on the amendment?
  If not, the question is on agreeing to amendment No. 3945.
  The amendment (No. 3945) was agreed to.
  Mr. LEAHY. Madam President, I move to reconsider the vote.
  Mr. LIEBERMAN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Ms. COLLINS. 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. LIEBERMAN. Madam 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. 3821, As Modified

  Mr. LIEBERMAN. Madam President, I call up among the pending 
amendments amendment No. 3821 offered by the Senator from Iowa, Mr. 
Harkin.
  The PRESIDING OFFICER. The amendment is pending.
  Mr. LIEBERMAN. I ask unanimous consent on behalf of Senator Harkin to 
send a modification of the amendment to the desk.
  The PRESIDING OFFICER. Without objection, the amendment is so 
modified.
  The amendment, as modified, is as follows:
       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).
  Mr. LIEBERMAN. Madam President, I urge adoption of the amendment, as 
modified.
  The PRESIDING OFFICER. Is there further debate on the modified 
amendment?
  Mr. LIEBERMAN. Very briefly, the Harkin amendment is focused on a 
requirement relative to the new board we are creating in this proposal. 
The new board, to watch out for the privacy and civil liberties rights 
of American citizens and others, is required to make periodic reports 
to Congress. This amendment now simply says that in those reports, 
there should be an opportunity for minority views to be recorded as 
well. It is a good amendment, as modified, having eliminated some more 
controversial provisions. I urge its adoption.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Madam President, I very much appreciate the fact that 
the Senator from Iowa has worked with us on it. The revised amendment, 
unlike the original, is one I support and I, too, urge adoption of the 
modified amendment.
  The PRESIDING OFFICER. Is there further debate?
  If not, the question is on agreeing to the amendment.
  The amendment (No. 3821), as modified was agreed to.
  Mr. LIEBERMAN. Madam President, 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.
  Ms. COLLINS. 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. Madam 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. 3809, as Modified

  Ms. COLLINS. Madam President, I ask unanimous consent to proceed to 
the consideration of Levin amendment No. 3809, as modified.
  The PRESIDING OFFICER. Without objection, the amendment is pending.


         Amendment No. 3962 To Amendment No. 3809, as Modified

  Ms. COLLINS. Madam President, I call up a second-degree amendment to 
that amendment. The second degree is numbered 3962. I ask unanimous 
consent that it be considered.
  The PRESIDING OFFICER. Without objection, the clerk will report.
  The legislative clerk read as follows:

       The Senator from Maine [Ms. Collins], for herself and Mr. 
     Lieberman, proposes an amendment numbered 3962 to amendment 
     No. 3809, as modified.

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

       On page 1, line 3, strike ``military'' and all that follows 
     through page 2, line 9, and insert the following:

     uniformed services personnel, except that the Director may 
     transfer military positions or billets if such transfer is 
     for a period not to exceed three years; and
       (E) nothing in section 143(i) or 144(f) shall be construed 
     to authorize the Director to specify or require the head of a 
     department, agency, or element of the United States 
     Government to approve a request for the transfer, assignment, 
     or detail of uniformed services personnel, except that the 
     Director may take such action with regard to military 
     positions or billets if such transfer is for a period not to 
     exceed three years.

  Ms. COLLINS. Madam President, I am going to have Senator Levin first 
discuss this issue, and then Senator Lieberman and I will respond.
  The PRESIDING OFFICER. The Senator from Michigan is recognized.
  Mr. LEVIN. Madam President, military personnel comprise an important 
part of the national intelligence community. Managing military 
personnel is the appropriate function of the Secretary of Defense and 
the military departments.
  The bill, as drafted, would permit the transfer of military personnel 
within the national intelligence program. This amendment strikes that 
language and does not permit the transfer of the military personnel 
within the national intelligence program.
  The second-degree amendment makes it clear that the positions, of 
course, cannot be transferred. In other words, providing that the 
people who are in those positions are not transferred by the national 
intelligence director, if it is just the money for the positions, which 
providing it falls within the scope of reprogramming, for instance, and 
can be done in any event; providing it is the positions or the money 
attached to the positions that are transferred from one part of the 
intelligence community to another, that we do not prevent. It is the 
transfer of uniformed people that cannot be accepted, and this 
amendment would prevent that from happening.
  So if we are in a situation, for instance, where the national 
intelligence director says, I want those five people from a particular 
agency, and if these are uniform military personnel, that would not be 
possible when my amendment is adopted. The national intelligence 
director would be able to transfer positions, or the money, and say

[[Page S10488]]

$400,000 or $1 million or whatever, providing, again, it is within or 
below the limit that is established, which would require programming 
approval by the Congress; providing it is below that limit, the NID 
continues to have that authority, which he would have in any event, to 
transfer funds or positions from one place to another. So we don't 
touch the money or the positions.
  However, we maintain a chain of command. We maintain military 
careers. These are uniform military careers, and we do not have an 
outside civilian person changing that career by transferring a uniform 
military person from one place to another.
  I thank my colleagues, the managers of the bill, for working out this 
language with us. It is a very important change in terms of military 
careers, in terms of military personnel, in terms of the management of 
military personnel, in terms of morale. But it does not disturb, again, 
the budgetary power or the shifting around of budgets--or billets, as 
we call them--or positions, providing, again, they are underneath and 
within the limits established by the reprogramming procedures that have 
been established, where individual agency heads are allowed to transfer 
money from one place to another. If it is above that limit, it is 
established by the reprogramming procedures, then, of course, they have 
to go through the normal reprogramming process before money can be 
transferred from one place to another.
  The PRESIDING OFFICER. The Senator from Maine is recognized.
  Ms. COLLINS. Madam President, the Collins-Lieberman bill grants the 
national intelligence director the authority to transfer personnel 
within the national intelligence program to meet higher priorities. 
This is extremely important authority because we want to make sure the 
NID can, for example, staff up the National Counterterrorism Center 
with individuals from a variety of agencies, including military 
personnel who may be at the Defense Intelligence Agency, for example.
  But the compromise that we have reached addresses two important 
concerns. One, it puts a 3-year limit on the length of time for this 
personnel. That is important because we don't want to disrupt the 
military careers of individuals who are temporarily transferred. 
Second, it makes clear that we are talking about slots, or billets, and 
not individual members of the military.
  In other words, the NID cannot say: I want ``Colonel Murkowski'' to 
go to the National Counterterrorism Center. Instead, the NID would say: 
I want a linguist to go to the National Counterterrorism Center, or 
describe what the slot may be.
  I think this is a good compromise on this issue, and it leaves intact 
the strong authority of the national intelligence director, while 
addressing the legitimate concerns raised by Senator Levin.
  Mr. LIEBERMAN. Madam President, I rise to support this modification 
of the amendment. Here, again, we have reasoned together about the 
significant changes that will come about as a result of the underlying 
proposal in the creation of an NID. I think it will come out with a 
result that is fair and will be effective.
  As I have said before, our intelligence forces today are like an army 
without a general. The whole idea of creating an NID is to put somebody 
in charge. Part of being in charge has to mean the ability to transfer 
the forces to places where the director thinks they are needed.
  Senator Levin was understandably concerned about the impact that 
might have on the military chain of command. In an initial proposal he 
said these transfers could not occur without the approval of the 
Secretary of Defense. We thought that would frustrate the authority 
that we are trying to give to the national intelligence director. So we 
have come to a very reasonable compromise, which is, as Senator Collins 
and Senator Levin said, with regard to uniform military personnel 
working within the intelligence community. If the NID believes he needs 
three, four, or five positions from military intelligence, the slots 
can be moved. But the NID, with regard to uniformed military personnel, 
cannot go in and say, I want--as Senator Collins said--``Colonel 
Murkowski'' to be transferred to the national intelligence center, or 
some other subdivision of the intelligence community. That is quite 
reasonable. But it would allow the position, the slot, to be 
transferred. And then, presumably, for a process of negotiation, it 
would allow a process of negotiation to go on for the Secretary of 
Defense or the NID, or their designees, as to who actually filled that 
slot. With regard to nonuniformed personnel, including military 
personnel, those within the Department of Defense, they can be 
transferred by the national intelligence director, acting on his own.
  I think this is a very good, balanced compromise. I thank Senator 
Levin for his characteristic thoughtfulness. I even thank him for his 
persistence, which I think has brought about a good result. I am happy 
to support this amendment, as modified.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Madam President, my thanks to the managers, not just for 
their work on this amendment, but their work generally on this bill. It 
has been exemplary and a model to all of us in this Senate as to how we 
can achieve things on a bipartisan basis. They worked together 
beautifully, and I commend them for it.
  The PRESIDING OFFICER. The question is on agreeing to amendment No. 
3962 to amendment No. 3809, as modified.
  The amendment (No. 3962) was agreed to.
  The PRESIDING OFFICER. The question is on agreeing to amendment No. 
3809, as modified, as amended.
  The amendment (No. 3809), as modified, as amended, was agreed to.
  Mr. LEVIN. I move to reconsider the vote.
  Mr. LIEBERMAN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Ms. COLLINS. Madam 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.
  Ms. COLLINS. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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