[Congressional Record (Bound Edition), Volume 148 (2002), Part 12]
[Senate]
[Pages 15842-15855]
[From the U.S. Government Publishing Office, www.gpo.gov]




            HOMELAND SECURITY ACT OF 2002--MOTION TO PROCEED


                             Cloture Motion

  The ACTING PRESIDENT pro tempore. Under the previous order, the Chair 
lays before the Senate the cloture motion, which the clerk will report.
  The legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of Rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close debate on the motion to 
     proceed to H.R. 5005, a bill to establish the Department of 
     Homeland Defense.
         Tom Daschle, Harry Reid, Zell Miller, Joseph Lieberman, 
           Tim Johnson, Debbie Stabenow, John Edwards, Jon 
           Corzine, Susan Collins, Robert F. Bennett, Trent Lott, 
           Pete Domenici, Rick Santorum, Fred Thompson, Peter 
           Fitzgerald, Jim Bunning.

  The ACTING PRESIDENT pro tempore. Under the previous order, time for 
debate on the motion is limited to 7 hours to be equally divided 
between the Senator from Connecticut, Mr. Lieberman, and the Senator 
from Tennessee, Mr. Thompson, for the proponents, and the Senator from 
West Virginia, Mr. Byrd, for the opponents, or their designees.
  Mr. REID. Mr. President, the two managers will be here very shortly. 
I ask unanimous consent that the time for the quorum be charged equally 
against both sides, and I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LIEBERMAN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The Senator from West Virginia is recognized.
  Mr. BYRD. Mr. President, let me beg the Senator's forgiveness. Before 
he begins, I want to ask this earlier rather than later. May I ask a 
question with respect to the amendment?
  Mr. LIEBERMAN. Of course.
  Mr. BYRD. Is the amendment that the distinguished Senator will offer 
as a substitute the amendment I have seen? Is that the amendment?
  Mr. LIEBERMAN. In responding to the Senator from West Virginia, that 
is indeed the amendment. What is before the Senate now, as the Senator 
from West Virginia knows, is the House-passed bill. It is my intention, 
assuming the motion to proceed passes today, to offer as a substitute 
the legislation that was adopted by the Senate Governmental Affairs 
Committee in July, which has been distributed to the Senator from West 
Virginia and others.
  Mr. BYRD. May I ask the distinguished Senator, with great respect, 
does he have any suggestion as to how we will handle the time on quorum 
calls?
  Mr. LIEBERMAN. I appreciate the question. It was my hope we could 
agree that the time on the quorum calls be subtracted equally from each 
side. Is that agreeable to the Senator from West Virginia?
  Mr. BYRD. I hope it would not be. Once I begin, I don't plan to have 
any quorum calls. Yet, of course, at times it becomes necessary. When I 
do ask for a quorum call, I will expect that to be taken out of my 
time. I would not want to divide the time equally on quorum calls, I 
say with great respect.
  Mr. LIEBERMAN. The Senator has that privilege, and I have no desire 
to limit debate. So let us just agree that quorum calls will remove 
time from the side that asks for the quorum call.
  Mr. BYRD. Very well. I have one further question. In closing the 
debate, does the Senator have any particular way he wishes to proceed? 
I believe he would want to close the debate. If I might make a 
suggestion.
  Mr. LIEBERMAN. Please.
  Mr. BYRD. I ask if I could go preceding the Senator and if the 
distinguished minority member, Mr. Thompson, could speak just prior to 
me. That would be my suggestion. However, if Senator Thompson wants to 
do this differently, I will accept that.
  Mr. LIEBERMAN. I thank the Senator from West Virginia. That order was 
exactly what I had in mind. I ask Senator Thompson if that is agreeable 
to him.
  Mr. THOMPSON. It is most agreeable to me. I think that is the way to 
proceed.
  Mr. LIEBERMAN. Fine. So we will close the debate in the last half 
hour going from Senator Thompson, to Senator Byrd, to myself.
  Mr. BYRD. Mr. President, will the Senator yield further?
  Mr. LIEBERMAN. I will.
  Mr. BYRD. May I say, I hope we will not confine our closing arguments 
to a half hour. As far as I am concerned, when we get to that point, 
perhaps we can wait until the last hour to close the arguments, or the 
last hour and a half, and Senator Thompson would proceed, and then the 
Senator from West Virginia, and then the distinguished manager of the 
bill, and that we not limit ourselves--the three of us--to the totality 
of 30 minutes.
  Mr. LIEBERMAN. Once again, Mr. President, that suggestion is 
agreeable to me. Debate, as the Senator from West Virginia knows, is 
limited to 3\1/2\ hours on each side. But some of this will depend on 
how many colleagues come to the floor to speak. Let us work together. I 
agree that we don't have to limit the time in which we go to closing 
arguments to the last half hour. We can work that out ourselves and 
take longer than that. That is fine.
  Mr. BYRD. Mr. President, may I say I thank the distinguished Senator, 
the manager of the bill. I have only the very highest degree of respect 
for him, and I have only the highest degree of respect for the 
committee, and for his counterpart--if I may use that word--a very 
respected Senator, the Senator from Tennessee. I have great respect, 
and anything I say during this debate will be only with the desire in 
mind to contribute something that will reflect well upon this Senate in 
the days and years to come.
  I have every belief that the Senator from Connecticut and the Senator 
from Tennessee approach the matter in the same spirit. I thank the 
Senators for yielding.
  Mr. LIEBERMAN. Mr. President, I thank the Senator from West Virginia 
for his graciousness. Of course, Senator Thompson and I return the 
respect the Senator kindly offered to us. This is a very significant 
debate. It goes to the heart of the security of the American people 
today, post September 11, and it is also, by my calculation, the 
largest reorganization of the Federal Government since the late 1940s. 
Therefore, the kind of debate in which I know the Senator from West 
Virginia intends to engage is very much in the public interest. I look 
forward to it.
  Mr. BYRD. Mr. President, I thank the Senator.
  September 11 is now one of the darkest days in American history 
because of the almost 3,000 innocent lives that were taken and because 
of the way in which the American people were jarred from the dream that 
we would experience a time of extended peace after our victory in the 
cold war. The attacks made against us on September 11 were not just 
vicious in their inhumanity and in the lives that were taken in tragic 
consequences, but also in the assault made by the terrorists on our 
very way of life, on our values.
  We are a nation whose founders stated right in the original American 
document, the Declaration of Independence, that every citizen has the 
right to life, liberty, and the pursuit of happiness and that right is 
the endowment of our Creator. Yet we were attacked on September 11 by a 
group that claimed to be acting in the name of God. Yet they took 
planes into buildings full of thousands of people without regard to the 
lives of those people, killing them only because they were Americans, 
acting in the name of God to kill almost 3,000 children of God--diverse 
and varied in age and demographics, as the American people are.
  It is in that sense that I view September 11 as an attack on our way 
of life. It is why we have pulled together after that as united people 
to resist, to strike back at those who struck at us first, through our 
courageous and skillful military achieving a great victory in 
Afghanistan. We must continue,

[[Page 15843]]

since Afghanistan was only the first battle in the war against 
terrorism, to search out and capture or destroy all the enemy that 
remains in this unprecedented war, unprecedented in so many ways 
because we cannot see the enemy on a battlefield, they are not on ships 
at sea, but they are out there living in the shadows, preparing to 
strike us again.
  What this proposal is about, stated in the most direct way, is to 
diminish, hopefully eliminate, the vulnerabilities of which the 
terrorists took advantage to strike at us on September 11, so that they 
will never again be able to do that.
  I am not one who views another September 11-type attack as 
inevitable. We are the strongest nation in the history of the world, 
militarily and economically. We are united by our shared values. We are 
a patriotic and innovative people, and if we marshal these strengths, 
we can make another September 11-type attack impossible, and that is 
the aim of the legislation our committee puts before the Senate today.
  The urgent purpose of all three versions of homeland security that 
are in the discussion now--and I am speaking of the proposal by 
President Bush, the proposal passed by the House, and the one endorsed 
by the Governmental Affairs Committee of the Senate--is to meet the 
urgent post-September 11 security challenge we face, which is 
unprecedented, by consolidating the disparate Federal agencies and 
offices that deal with homeland security into a single Cabinet 
department under a strong, accountable Secretary.
  In one sense, one might say the problem with the Federal Government's 
organization today with regard to homeland security is that a lot of 
people are involved in homeland security but nobody is in charge. The 
mission of this new Department that all three proposals would create is 
to spearhead the Federal Government's defense of the American people 
against terrorism on our home soil, working particularly with States, 
counties, cities, towns, and Native American tribes across the country 
and working with the private sector to improve their preparedness and 
response capabilities.
  As the 1-year anniversary of September 11 approaches, the 
reconstruction of the Pentagon is almost complete, the field in 
Pennsylvania, to the casual eye, looks almost like any other field, and 
plans for the redevelopment of the World Trade Center site are already 
being actively discussed. But the reality is that the vulnerabilities 
the terrorists exploited on September 11 in America's homeland defense 
structure still exist. We are still at risk, and that is why we must 
urgently proceed to discuss, debate, and then adopt legislation 
creating a Department of Homeland Security.
  The dark day of September 11 and the future it foretold are seared in 
our minds and our hearts. We must never stop feeling anger and outrage 
about what our enemies did to us. We must never stop mourning the 3,000 
lives we lost. We must never stop honoring the legacy they left. We 
must never stop supporting the families whose loved ones were the first 
casualties of the war on terrorism. And we must never stop treasuring 
the freedoms and the opportunities that make this Nation truly the 
light it is to so many people around the world.
  The single most important action we can take now as individuals and 
as a nation, in addition to continuing the military phase of the 
offensive war against terrorism, is to channel our sorrow, our outrage, 
our unity, our anxiety, and our pride into building better defenses at 
home.
  This legislation is not a single-magic-bullet answer to our homeland 
security challenges--much more work needs to be done--but I am 
convinced it is a strong and necessary first step. It will provide the 
structure that can deliver the defense the American people deserve.
  I thank President Bush for embracing the creation of a Department of 
Homeland Security and for the diligence with which he and his staff 
have worked through the details with members of our committee, with 
Members of the Senate, and with Members of the House. Amendments always 
highlight differences, but the reality is that President Bush and the 
majority of members of the Governmental Affairs Committee who reported 
out the legislation are in agreement on more than 90 percent of what 
this legislation provides. We stand broadly on common ground, even as 
we debate some of the remaining differences between us.
  I also want to thank my colleagues in this Chamber for their 
contributions and cooperation across party lines for the building of 
this proposal. We have come a long way, and we must get to the end in 
this session. I particularly want to thank my ranking member, Senator 
Thompson, for his characteristic constructive and thoughtful 
contributions to this proposal, even when we have been in dissent. The 
least we can do for the American people and for Senator Fred Thompson 
is to pass this legislation while he is still a Senator, before he 
retires.
  The President and Congress and the American people have made real 
progress since September 11. A successful military campaign in 
Afghanistan, creating the Office of Homeland Security, passing the USA 
Patriot Act, creating a Transportation Security Administration, 
beginning to reform the FBI--those are just a few of the significant 
steps we have taken forward together.
  Federal employees are working very hard at their assigned tasks and 
working increasingly in cooperation with our State and local colleagues 
to keep the American people safe. We have to speak frankly about this 
as we begin the consideration of this legislation.
  Our progress will hit a wall--in effect it has--if we do not reform 
the Federal Government's homeland security capabilities because the 
gains we have made in keeping America safe since September 11 have 
been, and will continue to be, in some sense despite the system, not 
because of it.
  The system, the organization, is dispersed and in some ways it is 
dysfunctional. It needs to become coherent and consolidated, 
coordinated, to rise to the complex challenge of defeating 21st century 
terrorism in our homeland.
  The 18 hearings we on the Governmental Affairs Committee have held 
since September 11 on this matter, and countless other hearings by so 
many other committees, have made the scope and depth of this 
disorganization and dysfunction clear.
  To sum it up in the words of Stephen Flynn, senior fellow of national 
security studies at the Council on Foreign Relations, who testified 
before us on October 21 of last year:
  We have built our defense and intelligence communities to fight an 
away game.
  Now we must build them to fight at home and to win. Across our 
Government, we are dividing our strengths when we desperately need to 
be multiplying them. As the President acknowledged on June 6, the 
Office of Homeland Security, though ably headed by Gov. Tom Ridge, did 
not have the structural power to get the job done we need done. Indeed, 
the release on July 16 of the President's national strategy for 
homeland security, underlay the importance of creating a Department 
that can orchestrate the huge task ahead.
  The status quo is simply unacceptable and we must rise to the 
occasion by organizing for the occasion. We must move from 
disorganization toward organization. When we pass this legislation, the 
American people, for the first time, must be able to look to a single 
Federal agency that will take the lead in the homeland fight against 
terrorism and to hold that agency accountable for accomplishing what is 
Government's first responsibility, and that is to provide, as the 
Constitution says, for the common defense. And now that means the 
defense of the American people at home.
  The Department we will create will be led by a Presidentially 
appointed, Senate-confirmed Secretary. It would be comprised of six 
directorates that, taken together, would accomplish its missions and 
goals. Let me briefly describe them now.
  First is intelligence. I put that first intentionally because we 
cannot prevent attacks, nor can we adequately

[[Page 15844]]

prepare to protect ourselves or respond if we cannot first detect the 
danger. This legislation would establish a strong intelligence division 
to receive all terrorism-related intelligence from Federal, State, and 
local authorities; from human intelligence and signal intelligence; 
from closed and open sources; from the FBI and the CIA, including 
foreign intelligence analysis from the Director of Central 
Intelligence's Counterterrorism Center. Then it would have the 
authority to fuse that all in a single place. This would be the one 
place--which does not exist in our Government now--where all the 
proverbial dots could be connected as they were not because of existing 
barriers to sharing information prior to September 11. Indeed, the new 
Department will not just receive and analyze intelligence collected 
from other agencies; it will contain agencies within itself that 
collect intelligence and will share it and send it up to this 
directorate of intelligence. I am speaking of the Customs Service, of 
Immigration, of the Coast Guard, of the Transportation Security Agency, 
all examples. All of that will be fed into the same stream.
  I want to stress that stream will include information from State and 
local law enforcers who we acknowledge now are the first responders, as 
we saw on September 11.
  If this directorate of intelligence is working well, State and local 
law enforcers can become first preventers. They are hundreds of 
thousands of eyes out across America who can share information, who can 
help us detect patterns and work with law enforcement to prevent any 
future attacks against America. This precise capability exists nowhere 
in Government and would be designed to complement the Director of 
Central Intelligence's Counterterrorism Center and the capabilities of 
other intelligence and law enforcement agencies such as the FBI.
  This directorate would not collect intelligence; it would receive it 
and analyze it. It would mean all information related to terrorist 
threats on American soil would, for the first time in our history, come 
together in this one place. Perhaps it could be called a hear-all-evil 
and see-all-evil office. That is precisely what we need to prevent the 
recurrence of the disastrous disconnects that left the puzzle pieces of 
the September 11 plot laying scattered throughout our Government, when 
they should have been together in one box so they could have been 
assembled. That is what this division of intelligence would do.
  The second, critical infrastructure: We can expect terrorists to try 
to hurt us by destroying or disrupting our infrastructure. What do we 
mean by that? Well, our water and agricultural delivery systems, our 
energy grids, our information technology networks, our transportation 
systems, our ports and airports, and more. Eighty-five percent of our 
infrastructure is actually owned and operated by the private sector. 
That is the nervous system, the respiratory system, the circulatory 
system of our society. Infrastructure, however, is not the only target. 
Indeed, attacks by weapons of mass destruction have up until now been 
designed largely to destroy people, not to damage our infrastructure. 
In fact, of course, the attacks on September 11 were not against 
infrastructure in the way in which that term has normally been meant. 
They were against the World Trade Center and the Pentagon. But 
infrastructure is a big, vulnerable, and complex target.
  Today, responsibility for working with the private sector to 
safeguard it is spread thin throughout the Federal bureaucracy. This 
directorate would mesh critical infrastructure protection programs now 
residing in five different Federal agencies, including the Department 
of Energy, the Department of Commerce, and the General Services 
Administration.
  Third is a border and transportation protection directorate. Every 
potential source of danger that is not already inside our country must 
come in through our ports or airports or over our borders. Once danger 
gets inside, it is much harder to root out. So to effectively 
interdict, interrupt, and intercept terrorists and the weapons of toxic 
materials or mass destruction they seek to smuggle in, this directorate 
would bring together our Customs Service, the border quarantine 
inspectors of the Animal and Plant Health Inspection Service of the 
Department of Agriculture, the recently created Transportation Security 
Administration, and the Federal Law Enforcement Training Center.
  The Coast Guard will also be transferred to the new Department 
reporting directly to the Director of Homeland Security and will work 
closely with all other authorities on our waterways, in our ports, and 
at our borders.
  Fourth is science and technology. Now terrorists will try to turn 
chemistry, biology, and technology against us in untraditional and 
inhumane ways. So we are challenged to marshal our superior 
technological talents to preempt them and protect our people.
  This science and technology directorate is intended to leverage 
America's advantage on this front, creating a lean entity to manage and 
coordinate innovative homeland security research and development and to 
spearhead rapid technology transaction and deployment. It would be 
armed with an array of mechanisms to catalyze and harness the enormous 
scientific and technological potential residing within our Government, 
within our private sector, and within our university communities.
  One of the key features of this directorate will be a homeland 
security version of the Defense Advanced Research Protects Agency, 
DARPA, which has sparked the development of Revolutionary Warfighting 
Tools for our military throughout the cold war and now into the post-
cold-war world, the very tools and systems and weapons that enabled our 
courageous and skillful fighting forces to terrify and defeat the 
Taliban in Afghanistan so brilliantly and to disrupt the al-Qaida 
network.
  Of course, DARPA has also spun off from its technologies to create 
some of the most remarkable commercial and civilian technologies that 
characterize our age, including the Internet.
  It is our hope and prayer that this new Department, which we would 
like to call SARPA, the Security Advanced Research Projects Agency, 
will do the same for our homeland security and for our economy.
  Fifth, emergency preparedness and response: After September 11, we 
all have an obligation to think about and to prepare ourselves for the 
unthinkable, including attacks with chemical, biological, radiological, 
and nuclear weapons at home. This directorate with the Federal 
Emergency Management Agency at its core will combine and integrate the 
strengths of a number of Federal agencies and offices responsible for 
dispensing critical vaccines and medicines for training local and State 
officials in emergency readiness, and for reacting to and helping the 
American people recover from the attacks that we hope and pray and will 
work to deter, but we must be ready to respond.
  Six is immigration. America's positive fundamental heritage of 
immigration, central to our character as a country of opportunity and 
responsibility and community, must be honored. But at the same time, 
after September 11 we have to look with new clarity and intensity at 
illegal immigration as well as how to better screen those who come to 
this country legally and may stay beyond the time allowed.
  Our proposal brings the troubled Immigration and Naturalization 
Service into the Department of Homeland Security and places those 
functions in a separate division within it. Then, to undo internal 
conflicts in the agency and give each set of functions the concerted 
attention it deserves, we propose to split the directorate into two 
distinct but closely linked bureaus as called for in the bipartisan INS 
restructuring plan of our colleagues, Senator Kennedy and Senator 
Brownback. This is a long overdue major reorganization of a very 
troubled agency.
  We also require the Secretary to establish a border security working 
group comprised of himself, working with the Under Secretary for Border 
and Transportation Security and the

[[Page 15845]]

Under Secretary for Immigration Affairs. Our goal is to make passage 
more efficient and orderly for most people and goods crossing the 
border while at the same time raising our capacity to identify and stop 
dangerous people and things from entering America.
  Those are the six core directorates which we see as six spokes of the 
wheel. Where they meet at the axis is where our security at home comes 
together.
  There are a few important pieces of this legislation I want to 
describe additionally. As we need to keep reiterating, this is not 
solely a Federal responsibility or a Federal fight in the war against 
terrorism, it is a national responsibility and a national fight, with 
the front lines being drawn in our cities and towns all across America. 
One need only look at the long list of fallen heroes of September 11 to 
understand that. That is why we in Washington must do a far better job 
of creating and sustaining potent partnerships with States and 
localities which will be facilitated, I am confident, through the new 
Department. We are creating an Office of State and Local Government 
Coordination. This office is designed to assess and advocate for the 
resources needed by State and local governments all across the country.
  In fact, there is separate legislation, quite appropriate, 
recommending the creation of a homeland security block grant. The 
initial amount proposed is $3.5 billion for fiscal year 2003.
  I know from having spoken to the Presiding Officer, speaking to the 
local responders and first preventers, they are already spending 
significant funds to carry out the wider range of homeland security 
responsibilities they have. This is a national problem, and they are 
playing a large role in responding. We have to give them the resources, 
the funds, to make that possible. In fact, to meet the pressing need 
for well-trained firefighters in our communities, our legislation 
includes an amendment offered by Senators Carnahan and Collins that 
points Federal assistance to local communities nationwide, patterned on 
the very successful COPS program adopted during the Clinton 
administration. This program for firefighters would enable the hiring 
of as many as 10,000 additional firefighters per year.
  The Office of State and Local Government Coordination would also be 
strengthened with the help of an amendment offered by Senators Carper 
and Collins providing a number of new mechanisms, including the 
creation of liaison positions in each State in the country, a liaison 
with the new Department of Homeland Security to ensure close and 
constant coordination between the Federal Government and the first 
responders, first preventers, who are our principal partners in this 
solemn task.
  Recognizing the need to ensure that fundamental American freedoms are 
not curbed as we build a more secure society, our legislation also 
creates positions of civil rights officer and privacy officer, as well 
as a designated officer under the inspector general within the new 
Department. Those positions will provide the Secretary valuable 
guidance to help craft effective policies and practices that don't 
compromise individual rights, and ensure there is an effective avenue 
for receiving complaints and investigating them. Outside of this 
Department, within the White House, the amendment would create another 
entity, a National Office for Combating Terrorism. Here I want to give 
substantial credit to the Senator from Florida, Mr. Graham, who has 
worked very hard with Members of both parties, in this Chamber and the 
other body, to fashion this proposal.
  We cannot fail to recognize that the fight against terrorism is, by 
definition, larger than what will be done by this new Department of 
Homeland Security. It will involve our military and intelligence 
communities separately, our diplomatic services, our law enforcement 
agencies, our international economic agencies, and many others. It 
seems to me and the committee that it is therefore still necessary to 
have a policy architect in the White House who can design and build the 
overriding antiterrorism strategy for and with the President, and to 
coordinate the implementation of that strategy that will necessarily go 
beyond the Department of Homeland Security.
  The director of this office will work, of course, with the Homeland 
Security Secretary to develop the national strategy for combating 
terrorism and the homeland security response. With budget certification 
authority, the director of this White House office will be able to make 
sure all the budgets that make up our antiterrorism national strategy 
fit together smoothly. And because of the critical nature of this job, 
according to our legislation, the director would be confirmed by the 
Senate, making him or her accountable to the Congress and to the people 
of the United States.
  That is an overview of our legislation as will be contained in the 
amendment I look forward to putting before the Senate this evening, 
after, hopefully, we have adopted the motion to proceed. I am proud 
that on the guts, on the fundamentals, of this proposal we in the 
Senate are near unified on this attempt to form, in a very modern 
context, what our Founders described as ``a more perfect Union.''
  Winston Churchill once said:

       A pessimist sees the difficulty in every opportunity; an 
     optimist sees the opportunity in every difficulty.

  I think only a big pessimist would see the difficulty in the 
opportunity this Department would create to secure our people and our 
homeland. We have crafted here a fundamentally optimistic and I think 
realistic answer to the homeland security challenges we face--seeing 
opportunity, not difficulty. As we go forward with amendments and 
discussion and votes on the remaining differences, I hope and believe 
that optimism will prevail and constructive action will result. 
Together, united across party lines, as it has been over and over again 
throughout history, our great country, which today faces a challenge 
that is unprecedented, will give the response we are called on to 
give--which is equally unprecedented.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Bayh). The Senator from Tennessee.
  Mr. THOMPSON. Mr. President, it is indeed true that today we begin 
consideration of the most significant reorganization of the executive 
branch in over 50 years. Not since the creation of the Department of 
Defense and the creation of the national intelligence apparatus in the 
National Security Act of 1947 has the Senate considered such a massive 
restructuring of Federal agencies.
  Just as World War II and the start of the cold war demonstrated the 
need to reorganize our defense and intelligence establishment, the 
terrorist attacks of September 11 demonstrate the need to reorganize 
our homeland security establishment to address the threat of terrorism 
and other types of asymmetric warfare against our country and against 
our people.
  I start by acknowledging and thanking Senator Lieberman, the manager 
of the bill, for his leadership on this issue. He was an early 
supporter of legislation to reorganize the executive branch to confront 
emerging threats against our country. He recognized what needed to be 
done and has worked hard to get us to the point where we are today.
  While we have some disagreements in some important areas, in the end 
we both believe that the creation of a new Department of Homeland 
Security is needed to make this country safe. Our Nation and the Senate 
also owe a debt of gratitude to the Members of the Hart-Rudman and 
Gilmore Commissions. Recommendations from both commissions have 
contributed greatly to our efforts. Indeed, the proposal before us owes 
much to the insight and thoughtful recommendations of our former 
colleagues, Senators Gary Hart and Warren Rudman.
  This legislation is one of the centerpieces of our country's overall 
homeland security strategy. What we do here will have lasting effects 
on our Nation. It will certainly outlive us. We should not shy away 
from the fact that while some bureaucracies will be reduced and 
eliminated, we will be creating a large new bureaucracy with

[[Page 15846]]

new leadership, a new mission, and a new culture. However, even 
advocates of smaller Government realize it is a mission that is vital 
to the security of this Nation, the most important responsibility of 
this or any other government and one of the basic responsibilities 
outlined for the National Government by the framers of our 
Constitution. That is what we are about today.
  I think it is appropriate perhaps to take a moment to reflect on how 
we got here. It is obvious to all that in the last several years we 
have undergone a revolution in the world in terms of the advances of 
modern technology. The same thing has happened with regard to 
transportation. We have also seen the emerging of a brand of religious 
radicalism that has infected certain parts of our world. We have seen 
the merging of those factors together, now, so that a small band of 
people, a small group of people, or even individuals on the other side 
of the world can wreak tremendous damage to our homeland.
  It is a different world we live in today, and we must have different 
means of dealing with it. We have seen attacks on us over the last 
several years that have become more and more indicative of the kind of 
world we can expect in the future: The Khobar Towers in Saudi Arabia, 
the original World Trade Center bombing, our embassies have been 
attacked, the U.S.S. Cole has been attacked. There have been other 
attempts that have failed because of the intelligence we were able to 
obtain. Attacks have been thwarted.
  We have seen over the last few years, through our committee hearings 
and through reports of the GAO and other governmental entities, a 
rising pattern of capabilities, in terms not only of terrorism but of 
rogue nation-states and their increasing ability to deliver weapons of 
mass destruction, to develop those weapons of mass destruction, and to 
have the missile capability and other capabilities of delivering those 
for thousands and thousands of miles.
  We have seen intelligence reports reminding us from time to time that 
this is what is going on out there.
  We have not paid as much attention to that in times past as we should 
have. When we look back with the vision we have now and see the attacks 
that have come upon us around the world, attacks on our interests and 
our people, coupled with the intelligence information we were getting 
here in our own Congress, we should have been able to see, as some of 
us have seen, that there was a developing pattern out there that needed 
to be addressed by the Congress.
  One of the good things that comes from such a tragedy under which we 
are now laboring is that it does finally focus our attention and allows 
us to do some things we should have done some time ago. It is a 
terrible price to pay in order to get us here, but we are here now and 
we should take advantage of that opportunity.
  How do we react to something like September 11? We react by coming 
together, as the American people have. We react by being strong 
militarily and having the kind of leadership that we have to carry out 
the necessary operations overseas. We are doing that. The President 
said in the very beginning that it was going to be a long, tough road. 
Indeed, it is proving to be. It doesn't take a whole lot of effort for 
people to rally right after an attack. But it is going to take 
something special from the American people to have the stick-to-
itiveness, and to have the stamina it is going to take, over a long 
period of time, for us to do what we are in the midst of doing now 
militarily.
  We also react by changing our priorities. We cannot continue, in the 
Congress of the United States, in terms of budgetary matters, for 
example, to act as if these are normal times. We cannot have guns and 
butter at all times. We cannot have our cake and eat it, too. We have 
to prioritize now to deal with this threat that we have to our Nation.
  Finally, the other important thing we can do is the one we are 
dealing with here today, this week, and days hereafter, and that is 
addressing and improving the institutions we have in our Government to 
deal with such matters and specifically the new threat we face.
  We have seen--Senator Lieberman and I--especially in the Governmental 
Affairs Committee over the last several years, an increasing array of 
problems that our Government has. There have been problems in 
management. There have been problems in trying to develop information 
technology that the private sector already has up and running. We have 
spent billions and billions of dollars and still have difficulty in 
getting that right and integrating those systems into our governmental 
operations.
  We have financial management difficulties. We literally cannot pass 
an audit as a Government. We lose things and misplace things such as 
military equipment and other troubling things such as that. We have 
human capital problems. Half our workforce is going to be eligible for 
retirement before long. We do not have what we should have, in terms of 
ability to recruit, ability to retain, ability to keep the people we 
need and not keep the people we do not need, and pay the ones we need 
to pay for these high-tech jobs--jobs that are so highly paid out in 
the private sector--to do the things we have to do in Government now.
  All of this presents a real problem to us, as a government, a 
Government-wide problem that has been growing--and growing all too 
silently out there--and without us doing too much about it.
  The GAO reminds us every year that the same agencies year after year 
appear on the high-risk list. That is the list that is compiled, as you 
know, on a yearly basis to lay out the agencies that are most 
susceptible to waste, fraud, abuse, overlap, duplication, and 
inefficiencies. The same agencies appear year after year. Some of those 
agencies are the ones being brought into this homeland security bill.
  We can't afford, as we create this new Department, to incorporate the 
same kinds of problems that we are seeing government-wide because the 
stakes are too great. It is not just a matter of wasting a few billion 
dollars of the taxpayers' money; it is a matter that could literally be 
life and death. This is what this bill is all about. This is why 
Senator Lieberman took the initiative. This is why the President 
decided, once the strategic view was presented to him by the people he 
had commissioned to look at all of this, that a homeland security 
approach was needed, and that the 22 agencies out there needed to be 
pulled together into one cohesive entity that could work to make our 
country safer.
  Certainly, there are very important areas. I will not go over all of 
them. Senator Lieberman has done that.
  But border security, for example, has never made any sense when we 
have people crossing borders, when goods cross the borders, and when 
plant life crosses the borders--all of which can be dangerous to the 
American people. They can cross them by water, they can cross the 
borders by air, they can cross the borders by highways. All of those 
things are just different aspects of the same problem. It all has to do 
essentially with border security. It has never made any sense to have 
all of this dispersed throughout Government.
  What the President does and what the committee bill does is to pull 
those in. We have different ways of doing it. We will have an 
opportunity to discuss those in more detail as we proceed, but it gets 
its arms around the border security problem.
  A lot of experts will say if you can do much better on the border 
problem, you can do better in the intelligence area, then you have gone 
a long way toward solving the problem.
  In the intelligence area, the President's approach is to have an 
intelligence entity that will allow us to protect our infrastructure. 
As you know, our infrastructure is elaborate, far-flung, and complex. 
Almost all of it is in private hands. It is an extremely difficult 
problem to address and to get our arms around and to protect. We can 
never be totally protected at all times in all ways. It is going to 
require a great deal of attention and expenditure of money by State, 
local, and Federal Government over years to come.
  We are going to have to address the vulnerabilities that we have. The

[[Page 15847]]

President's approach would set up a system to assess those 
vulnerabilities in order to protect those infrastructures. The 
committee's approach is a broader approach. We will have an opportunity 
to discuss that.
  I have concern about this broader approach because I don't think we 
can address the difficulties with the intelligence community in this 
bill and give it to a sub-Cabinet officer to have authority to pull all 
the dots together and all the things that need to be done in the 
intelligence community. We have seen, goodness knows, over the last 
several months and few years the difficulties we have in those areas of 
collecting intelligence, analyzing intelligence, and disseminating 
intelligence properly. That, to me, is a very important area that is 
going to have to be led by the President. It is going to have to be 
done by the administration. I view that as somewhat separate from the 
homeland security effort. But we can never mesh our entire intelligence 
community into this new Department.
  The analyses that we are going to need for the Homeland Security 
Department are also needed by these various intelligence communities.
  These are legitimate differences of view and approach that we will 
have an opportunity to discuss as we proceed. But we all agree that we, 
No. 1, must do much better in terms of our intelligence community and 
capabilities government-wide; secondly, this new entity must have some 
new intelligence entity to assist it to do what we properly decide that 
it ought to be doing. We will have an opportunity to discuss that in 
some more detail.
  I think as we proceed we can flesh this legislation out and we can 
make it even better than it is. Senator Lieberman is correct. I think 
there are many things we have basic agreement on here on a bipartisan 
basis. There are some serious differences of view on some important 
areas--differences the majority of the committee took versus what the 
President wishes to do. I think in these times the President must be 
given some leeway. It is going to be a long time before we put the 
final period to the last sentence of this legislation. I think it will 
be changed, as many other pieces of legislation dealing with the 
Department of Defense and the Transportation Department and others have 
changed over the years. I think there will be amendments and changes as 
we go forward. But it is important that we get off on the right foot.
  It is important, for example, that we give the new Department the 
management tools it needs. I have mentioned some of the problems we 
have traditionally with Government and the fact that we can't afford to 
bring those problems into the new Department. We can't expect to keep 
doing things the same old way and get different results. We don't want 
those inefficiencies, those overlaps, duplications, and waste, lost 
items, and things such as that, to follow us into the Department of 
Homeland Security. We can't have that happen. It won't work.
  What is the answer? The answer is to give the new Department 
sufficient management flexibility in order to address these issues. We 
have recognized this need in times past. We have given this flexibility 
in terms of hiring and firing and managing and compensating. Most of it 
has to do with compensation. A lot of people will say this is anti-
employee or union-busting or what not. It has nothing to do with that. 
Various agencies and the GAO came to us. The IRS came to us. The FAA 
came to us. The Transportation Security Administration came to us. They 
all came to us and said: Look, we either have special circumstances or 
we have special problems and we need some additional tools to deal with 
that. We need the right people in the right place to deal with those 
matters.
  In every one of those instances which I mentioned, Congress gave it 
to them. Congress gave them additional flexibilities that are not 
within the body of title V because we perceived those needs to be 
exactly as they were described to us.
  Now we are pulling 22 agencies together--some of them, quite frankly, 
already dysfunctional--and giving out these new responsibilities. We 
talk about how important it is to the new Department.
  My question is, If we are going to give these flexibilities to these 
other agencies, my goodness, why not this one, of all agencies or all 
departments?
  The President's national security authority must be preserved. We 
have significant disagreement with regard to whether the traditional 
authority that Presidents have had since President Jimmy Carter in the 
national security area in terms of the justifiable need to activate 
collective bargaining agreements with particular entities at particular 
times, for good reason. Presidents have used this authority 
judiciously. As far as I know, there has never really been a problem 
with it.
  This bill, as written, would take a step backwards from that 
authority of the President. I don't think it is fair in these times, of 
all times, to do that.
  On the issue of the White House staff, should we force on the 
President a Senate-confirmed person in that position when he says he is 
creating a new Department and a new Secretary with all of this 
elaborate mechanism, and he wants his personal person--some people make 
the analogy with the National Security Council, for example, that it is 
not Senate confirmed--inside the White House working for him?
  I assume, as Mr. Ridge is doing today, should we not give the 
President that? I believe so, after a sound intelligence approach, as I 
mentioned earlier, with not too many directorates, and not making this 
more elaborate and complex than we should.
  Those are issues that we have. I think they are legitimate. I think 
they are important. They will be the subject of amendments as we 
proceed.
  But, again, we do not want to look at a glass that is almost full and 
say that it is almost empty, because it is not. We agree on many, many 
important fundamental aspects. I think it is our job to get about the 
consideration of it, and to improve it, to discuss these important 
issues and differences that we have, and come to a conclusion that is 
going to achieve what we are all striving for; that is, a safer United 
States of America.
  Mr. President, I yield the floor.
  Mr. LIEBERMAN. Mr. President, I thank my friend and colleague from 
Tennessee for his very thoughtful statement. It has been a pleasure to 
work with him on the Governmental Affairs Committee, both when he led 
the committee and in the time that I have. I look forward to working 
with him in the weeks ahead to achieve what we all want to achieve, 
notwithstanding some differences that we have today, which is to secure 
the future of the American people here at home.
  I know that the intention was that Senator Byrd would speak next. He 
is not on the floor at the moment. I note the presence of the Senator 
from Texas.
  Mr. THOMPSON. I would ask that the Senator from Texas be given as 
much time----
  Mr. GRAMM. Why don't I take up to 10 minutes. Every time I have ever 
heard anybody say they will not use it, they talk more. But certainly 
everything I would want to say or should say or am competent to say I 
can say in 10 minutes.
  Mr. LIEBERMAN. Very well. Then it would be our understanding, after 
the Senator from Texas has completed his statement, that Senator Byrd 
will be recognized.
  Mr. THOMPSON. Yes.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. GRAMM. Mr. President, I will withhold for a moment.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, I greatly appreciate my friend from Texas 
withholding. He has always been very courteous. Today is no different 
than any other time.


                           order of procedure

  Mr. President, I ask unanimous consent that the Senate proceed to 
executive session, today, at 12:30 p.m. to consider Executive Calendar 
No. 962, Terrence McVerry, to be a United States District Judge; that 
the Senate immediately vote on confirmation of the nomination, that the 
motion to reconsider be laid on the table, the President

[[Page 15848]]

be immediately notified of the Senate's action, any statements thereon 
be printed in the Record, with the preceding all occurring without any 
intervening action or debate, and that upon the disposition of the 
nomination, the Senate resume legislative session and stand in recess 
until 2:15 p.m.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. REID. Mr. President, as in executive session, I ask unanimous 
consent that it be in order to request the yeas and nays on the 
nomination at this time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, I do, therefore, ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. GRAMM. Mr. President, whenever a bill comes to the floor from a 
committee, obviously, a lot of people have had an opportunity to have 
an input in it. It is always easy for people who do not serve on that 
committee to stand on the outside and jeer and throw rocks through the 
windows. And we are going to have a long debate. I think this bill is 
going to change dramatically. So rather than spending my time being 
critical of the product, I would like to just talk about some basic 
principles, sort of where I am coming from and what I hope can happen.
  First of all, when September 11 occurred, it sort of awakened the 
country to a threat we always knew was there. But there is nothing like 
seeing your fellow countrymen suffer to focus the mind on a challenge 
that too often we chose to pretend did not exist. I think we all 
concluded, in the wake of September 11, that our country had changed, 
perhaps forever. Part of that change had to do with coming up with an 
effective response.
  Free societies are vulnerable to terrorist attacks. There is nothing 
we can do about that since we are going to remain a free society.
  The President, who has the responsibility under the Constitution, as 
Commander in Chief, to defend the homeland, spent time and effort in 
getting together the best people, at least in his mind, that he could 
assemble, and he came up with a plan. That plan involved bringing all 
or part of 22 agencies together in a new Homeland Security Department.
  I know there are many people who have many different views, and that 
is what makes democracy strong. But I would like to begin with the 
point that the one person who has the constitutional responsibility, 
the one person who has access to more information than anybody else in 
our society, made a proposal; and that is the President's proposal.
  In my mind, under these circumstances, and in this clear and present 
danger that we face, I believe--no blank check, no guarantee we are 
going to do it just as the President wants it--we ought to bend over 
backwards to try to accommodate the man who has the constitutional 
responsibility and is ultimately going to be given the credit or the 
blame by the American people based on what happens.
  The President primarily asked for three things. One, he wanted 
flexibility in reorganizing these Departments. The flexibility wanted 
was substantial, but it was not without precedent. We had given similar 
flexibility to the Department of Energy, which was created from other 
Departments. We had given similar flexibility to the Department of 
Education, which was created in part by transfer and part by creation. 
Yet, remarkably, the bill that is before us denies the President the 
same flexibility that the President had when the Departments of Energy 
and Education were created.
  Now, energy is important, especially if you are in an energy crisis. 
Education is always important. But is there anybody who really believes 
the crisis we face is so unimportant that President Bush should not 
have the same powers in setting up the Department of Homeland Security 
that the President had in setting up the Department of Energy? I do not 
think many people take that position, but we have a problem in that the 
bill before us takes that position. In my mind, that has to be fixed.
  I understand reasonable people with the same facts are prone to 
disagree, but, as I look at this first request of the President, that 
he be given enhanced flexibility, not dissimilar to what we had with 
the Department of Energy and the Department of Education, to me, that 
is pretty close to a no-brainer that the President ought to have that 
flexibility.
  The second request is that the President have the power, based on 
national security, to override labor agreements. Now, that sounds like 
a pretty dramatic power. In fact, the way opponents normally talk about 
it, it is basically giving the President the power to eliminate 
collective bargaining. In my mind, nothing could be further from the 
truth. All this power does is gives the President the power to set 
aside elements of collective bargaining when national security is 
involved.
  Interestingly enough, the power the President sought he has under 
existing law. The President was simply asking for an affirmation of 
existing power. But, remarkably, in the wake of 9/11, not only did the 
committee not reaffirm this existing power but they took power away 
from the President in saying that whereas today, whereas on September 
11, or September 10, the President could have waived collective 
bargaining agreements for national security purposes, under this bill 
he would not be able to do that. But the prohibition would apply only 
to the Department of Homeland Security.
  I submit there is always room for disagreement, there is always room 
for some negotiation in trying to understand what other people think, 
but, to me, it is incomprehensible and absolutely unacceptable that we 
should be setting up a Department of Homeland Security and at the same 
time take away power the President has under existing law to take 
action based on national security concerns.
  The provision taking away the President's national security powers 
simply does not fit in this bill. I do not think it fits in any bill. 
But in a bill that is trying to respond to 9/11, it clearly does not 
fit and cannot be accepted and will never be accepted. Clearly, that is 
something that has to be fixed.
  Let me give you some examples. We currently have labor contracts 
negotiated with Government employee labor unions that prohibit the 
stationing of Border Patrol in areas that do not have laundries, that 
do not have access to personal services. There is a long list of things 
that were written.
  Now, in normal circumstances, where you have people trying to lead a 
quality life like everybody else, you can understand those things. The 
ability to take your clothes to the drycleaners is pretty important 
when you are wearing uniforms that require drycleaning. But in an 
emergency circumstance, do we really not want to have the power to 
waive that collective bargaining agreement?
  Another thing that has constantly driven me crazy, being in a border 
State--a huge border--with Mexico, is that trying to get the Border 
Patrol, INS, and Customs all to work together, trying to get them to 
cross-train so that people can perform various functions, is like 
trying to get them to use the same toothbrush. In fact, President 
Clinton's National Security Adviser talked about his frustration in 
dealing with the INS and Customs and the unwillingness of one agency to 
open the trunk in working with another agency.
  Now, look, I understand work rules. I admit I am probably less 
sympathetic to them than most other people. I think if you sign onto a 
job, whatever the job requires, within the limits of human dignity, you 
ought to be willing to do. I don't understand negotiating about who 
pushes what button or who opens what trunk. To me that seems silly. I 
am not very sympathetic to it. But when we are dealing with national 
security concerns, when the lives of our fellow citizens are at stake, 
we cannot put up with that business.
  So all the President is asking for is the power to set aside those 
kinds of

[[Page 15849]]

agreements in dealing with national security. It is not a question of 
being anti-union, it is a question of having concerns that override 
collective bargaining. We don't have collective bargaining for the 
Marines because they are about very serious, life-threatening 
circumstances and tasks. In dealing with homeland security, we are 
dealing with exactly those kinds of circumstances.
  Finally, the President's proposal asks for personnel flexibility--the 
ability to put the right person in the right position at the right 
time, without waiting for the normal 6 months, and the right to 
transfer people who are incompetent, and the right to fire people.
  I understand collective bargaining, and I understand writing in 
requirements of how the personnel system works. I understand trying to 
prevent people from being arbitrary and capricious. But the bottom line 
is, if we are trying to fight and win this war on terrorism, we need to 
have the ability to hire, fire, and promote based on merit in those 
agencies that are involved. I will give you two examples.
  A woman FBI agent sends a cable to the home office basically saying 
that maybe we ought to be concerned about people with terrorist 
connections who are taking flight training and are focusing on flying 
planes but not landing them. That actually happened. In the whole 
process of trying to absorb massive amounts of information with 
conflicting jurisdiction, nobody ever responded to it. But don't you 
think we ought to promote that woman? Don't you think we ought to 
promote her out of grade and reward her--not only to reward the fact 
that she was paying attention to her business, she was alert to a 
potential problem that, God knows, we wish we had been alerted to, and 
we want to send a signal to others in the FBI and other agencies that 
if you are doing a good job, we are going to reward you.
  On the negative side--and I don't want to belabor it because I don't 
know the circumstances and I am not at INS. I don't know the individual 
life stories of the people involved or the problems they had or the 
bureaucracy they faced. But, look, when we granted visas to terrorists 
who had their picture on every television screen in the world, whose 
names are on the front page of every newspaper in America because they 
had killed over 3,000 of our citizens, and then weeks later we 
processed a visa request for these brutal terrorist/murderers, maybe 
somebody should have been fired. Maybe somebody should have been 
transferred.
  I know that theoretically in the Federal Government you can fire 
people, but the reality is that it is virtually impossible. As 
everybody in the Senate knows, fewer than 1 percent of people who are 
found to be doing totally unsatisfactory work end up being fired in the 
Federal Government, and 80 percent of them, because of the momentum of 
the seniority system, end up getting raises after they have been deemed 
to be doing failing work.
  In the Department of Homeland Security, where we are dealing with 
people's lives, we need the flexibility to promote and reward. And, 
quite frankly, despite all the protests from the labor unions, every 
time I talk to people in Government agencies who would be affected, 
they like this flexibility, they like rewarding merit, they believe 
they would benefit and thrive in this system.
  I will conclude by simply saying this: The President is not saying do 
it my way or forget it. I think the President has been and will be 
flexible in terms of trying to work out an agreement. I think there is 
room for flexibility on the whole funding issue and reprogramming and 
the rights of the legislative branch. But when you get down to the 
ability to reorganize, the President is not going to accept a bill that 
gives him less power in the name of national security than the 
President had when we created the Department of Energy. He is not going 
to do that, and he should not do it. There is no possibility that the 
President is going to accept a bill that takes away emergency powers 
that he has today to waive collective bargaining agreements in a bill 
that claims to enhance the President's power to deal with national 
security.
  Finally, we gave flexibility on personnel under the FAA 
reorganization bill, under the IRS reorganization bill, and under the 
Transportation Security Administration reorganization bill. Yet in a 
bill trying to deal with homeland security, do we think it is less 
important than the FAA, or the IRS, or the Transportation Security 
Administration? Well, obviously, if you look at this bill, we do. So I 
don't think it is productive for this to degenerate into any kind of 
partisan battle.
  But the problem is, this is a bill that does not do the job. This is 
a bill that we would be better off--if it were adopted in its current 
form--not having. The President is not going to accept this bill, and I 
think we have reached the moment on a critical issue where we need 
simply to promote a bipartisan solution, work out these agreements, 
give the President these three powers he wants, work something out on 
the appropriations issue for enhanced reprogramming and a partnership, 
and preserve the ability of Congress to control the purse.
  I think the President, for every one problem he will have with money, 
will have 100 problems dealing with reorganization and personnel 
flexibility.
  I am hopeful we can work something out. We are going to be offering a 
series of amendments. I assume at the end we will offer a substitute. I 
hope that substitute will be broadly supported. Senator Miller and I, 
along with almost 40 of our colleagues, have introduced the President's 
bill because we wanted to try to promote a compromise moving in the 
President's direction.
  I thank Senator Thompson for his leadership on this issue. As I have 
followed what he has had to say, there is not any issue on which I have 
a substantive disagreement with him. I look forward to following his 
leadership as we work out these three key issues, but these issues have 
to be dealt with. There cannot be a bill that does not give the 
President reorganization flexibility, the ability to override 
collective bargaining agreements in the name of national security and 
personnel flexibility. Denying these three powers simply is a denial of 
common sense and a denial of the crisis as we all know it exists, and 
the bill has to be changed.
  I yield the floor.
  The PRESIDING OFFICER (Mrs. Carnahan). The Senator from Tennessee.
  Mr. THOMPSON. Madam President, I ask unanimous consent that the time 
used by the Senator from Texas not be charged to either side.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. THOMPSON. 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.
  Mr. THOMPSON. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. THOMPSON. Madam President, I was in error when I asked that the 
time of the Senator from Texas not be charged against anyone. I think 
that should be charged against the time of Senator Lieberman and 
myself. I ask unanimous consent that be done.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. THOMPSON. Madam President, I am getting ready to suggest the 
absence of a quorum again, and I ask unanimous consent that the quorum 
call we are about to go into not be charged against either side.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. THOMPSON. 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.
  Mr. BYRD. Madam President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BYRD. Madam President, I thank the majority leader for the 
courtesies which have been extended to all Senators, myself in 
particular because

[[Page 15850]]

I am the one I know most about, naturally, in listening to our concerns 
with respect to the legislation that is before the Senate.
  I am glad Members of this body had the opportunity during the August 
recess to study the House bill, to study the substitute that will be 
posed eventually by the distinguished Senator from Connecticut, Mr. 
Lieberman, which substitute, of course, is the product of his very 
great committee and the product in particular of the ranking member, 
Mr. Thompson of Tennessee, on that committee.
  I proceed today with a great deal of humility, realizing that I am 
not a member of the committee. I have no particular reason, other than 
the fact that I am 1 of 100 Senators who speaks on this matter today 
with no particular insight from the standpoint of being on the 
committee which has looked at this legislation. I have read the 
newspapers. I have read and heard a great deal about what the 
administration wants. I have done the best I could during the August 
break, in addition to several other responsibilities I had, to read the 
House legislation and the substitute which will be proposed by Mr. 
Lieberman.
  So I say to the members of the committee, and to Mr. Lieberman and to 
Mr. Thompson in particular, I respect the work they have done.
  I believe one of the two Senators today said there have been 18 
hearings of the committee. I was not present at those hearings.
  I respect the work of the committee. I have been a Member of Congress 
50 years. I know something about committees. I know something about 
committee hearings. I know something about the time and the energy that 
are put into hearings by the Members, as well as by the staffs of the 
members of the committee and the personal staffs of the Senators. I 
approach this subject today somewhat timidly because I am not on the 
committee but I am a Senator and I have been very concerned. The reason 
I am here today is that I am very concerned about how we go about 
creating the Department of Homeland Security.
  First of all, I am very much for a Department of Homeland Security, 
and I think I made that position clear many weeks ago. I had some 
concerns with respect to the proposal the House sent over after 2 days 
of debate on the House floor.
  I had some concerns about the appropriations process. Senator 
Stevens, distinguished ranking member of the Appropriations Committee, 
and I have joined in informing Mr. Lieberman and Mr. Thompson of our 
concerns. Mr. Stevens is a member of Mr. Lieberman's committee. We 
informed them of our concerns in writing. They have taken our concerns, 
studied them, and for the most part have dealt with our concerns. So 
from this moment on, I will have no more to say about the 
appropriations process because the Lieberman bill, in great measure, 
puts that thing right.
  I have other concerns. I am very concerned President Bush has been 
promoting his Homeland Security by citing the National Security Act of 
1947 as a role model for Government reorganization.
  In his weekly radio address on June 8, for example, President Bush 
stated that he was proposing ``the most extensive reorganization of the 
federal government since the 1940s. During his presidency, Harry Truman 
recognized that our nation's fragmented defenses had to be reorganized 
to win the Cold War. He proposed uniting our military forces under a 
single Department of Defense, and creating the National Security 
Council to bring together defense, intelligence, and diplomacy.''
  President Bush is correct to hold up the National Security Act as a 
role model. Here it is. It is the perfect example of why we must move 
slowly and carefully in reorganizing our government and avoid acting 
too swiftly or blindly. A look at the history of the unification of the 
armed forces reveals that government reorganization is not as quick, or 
as simple and easy as President Bush may have implied.
  Enactment of legislation providing for the unification of the 
military did not occur in a matter of weeks, nor even months, but 
years.
  On November 3, 1943, the Army Chief of Staff, General George C. 
Marshall, broke with long-standing War Department anti-unification 
policy and submitted to the Joint Chiefs of Staff a proposal favoring a 
single Department of War. In his book, The Politics of Military 
Unification, Demetrios Caraley writes: ``The conflict over military 
unification that eventually led to the passage of the National Security 
Act of 1947 can be said to have begun November 3, 1943.'' In other 
words, this was the beginning of what would become a four-year struggle 
in the effort to reorganize our government by unifying our armed 
services.
  In April 1944, the War Department submitted a unification proposal to 
the House Select Committee on Postwar Military Policy. That same month, 
the Committee began two months of hearings on the creation of a single 
department of the armed forces. The committee concluded that the time 
was inappropriate for legislation on a single department, strongly 
implying that such a reorganization might be a distraction from the war 
effort, and, therefore, should wait until the war was over. The 
Committee report reads in part:

       The committee feels that many lessons are being learned in 
     the war, and that many more lessons will be learned before 
     the shooting stops, and that before any final pattern for a 
     reorganization of the services should be acted upon, Congress 
     should have the benefit of the wise judgment and experience 
     of many commanders in the field.

  I point out that, more than two full years had elapsed since General 
Marshall's proposal, and there had been considerable congressional and 
administrative activity, including a number of studies, a number of 
alternate proposals, and a number of hearings, yet Congress at this 
stage was nowhere close to approving the reorganization of our 
government.
  On June 15, 1946: President Truman, in a letter to congressional 
leaders, recommended a 12-point program for unification. But 
considerable opposition to reorganization still remained, and as a 
result, President Truman eventually requested that the Senate drop 
consideration of military unification until the next session of 
Congress.
  The next year, February 26, 1947, in a communication to congressional 
leaders, and I was a member of the West Virginia state legislature, 
President Truman submitted a unification proposal, which became the 
National Security Act of 1947, that had been drafted by representatives 
of the armed forces and had been approved by the Secretaries of War and 
Navy, and the Joint Chiefs of Staff.
  Did you catch that? President Truman submitted a proposal that had 
been drafted, not by four people in secrecy in the basement of the 
White House, but by representatives of the armed forces and had been 
approved by the Secretaries of War and Navy, and the Joint Chiefs of 
Staff.
  What a difference in Administrations! What a difference in attitudes 
toward government!
  After President Truman's proposal was introduced in both houses of 
Congress, the Senate Committee on Armed Services began hearings that 
lasted for ten weeks. The House Committee on Expenditures in the 
Executive Departments also conducted hearings on the proposal that 
lasted from April 2 to July 1, 1947.
  Meanwhile, on May 20, 1947, the Senate Committee on Armed Services 
commenced an executive session ``to review the testimony received in 
extensive hearings on the bill and to consider proposed amendments.''
  Let me say that again: The Senate Committee on Armed Services 
commenced an executive session--whoa--``to review the testimony 
received in extensive hearings on the bill and to consider proposed 
amendments.''
  Again, I call attention to how slowly, how carefully, and how 
deliberately Congress was proceeding on this important issue involving 
the national security of our country. Senators can read the report of 
the Senate Committee on Armed Services on S. 758 which stressed this 
very point. The report reads, in part: ``In determining the

[[Page 15851]]

most suitable organization for national security no effort has been 
spared to uncover past mistakes and shortcomings. During the hearings . 
. . all phases of each plan were exhaustively examined.''
  Let me repeat that. The Senate Committee reported that ``no effort 
has been spared to uncover past mistakes and shortcomings'' and ``all 
phases of each plan were exhaustively examined.'' The committee was 
pointing out that Congress knew what it must do. That there would be no 
rush to judgment. They were not about to be stampeded into unwise 
legislation. There was no herd mentality there. They knew that what 
they were doing would help decide the fate of American government and 
American society for decades to come. They knew that, as the Nation's 
lawmakers--and that is what we are, the Nation's lawmakers--they had to 
be careful and deliberate because so much was at stake.
  On July 9, 1947, after debate and amendments, the Senate finally 
approved the National Security Act.
  The House of Representatives was just as careful and deliberate in 
considering this reorganization of our Government. The reason, the 
House Committee on Expenditures in the Executive Departments pointed 
out in its report, was that ``both civilian and service witnesses 
advised against a too-hurried consideration of the bill.''
  Finally, on July 19, 1947, the House began considering H.R. 4214, the 
committees's version of the President's draft bill. It approved the 
measure only after considering 17 amendments. Nine of the amendments 
were approved.
  On July 24, 1947, after five meetings, a conference committee 
reported a compromise version of S. 758 and so The House adopted the 
conference report.
  Two days later, President Truman signed the National Security Act 
into law, one half year after the legislation had been introduced, and 
four years since General Marshall recommended unification of our armed 
forces.
  I realize we do not have 4 years to act in this situation. I realize 
the situations are different in many ways; the circumstances are 
different in many ways. I know that. But this is a government 
reorganization that President Bush holds up as the role model for the 
present government reorganization which we are considering. The problem 
is that this administration envisions Congress approving in just a few 
weeks a massive reorganization of the Federal Government that involves 
22 agencies and 170,000 Federal workers.
  The administration should stop reading ``Gulliver's Travels'' and 
start reading some history, especially the history behind the 
unification of our Armed Forces. If it is going to use that as the role 
model, the National Security Act--the reorganization of our military, 
the establishment of a Department of Defense--we should read the 
history behind the unification of these Armed Forces. It is a 
cautionary tale, and one that the administration and we would do well 
to remember.
  I am very concerned that 30 years from now, Congress will be 
struggling to rectify the problems that we will be creating with hasty, 
ill-considered enactment of the Department of Homeland Security. There 
was all this rush, there was all this hue and cry that we ought to get 
this done before Congress goes out for the August recess. The House 
passed this bill after 2 days of floor debate and took off a week 
earlier than the Senate did. Then there was the idea we ought to do 
this by September 11.
  What we need to do is to develop a product that works. We need to 
have legislation enacted by Congress and signed by the President that 
is right, not something that is hurriedly passed just to conform with 
an artificial deadline on the calendar. How much harm could be done in 
the meantime can be imagined. I am referring to damage to the rights 
and the liberties that we hold most dear: civil rights, labor rights, 
labor protection, civil liberties of all Americans. I am talking about 
damage to our constitutional process. We can inflict damage upon the 
constitutional process if we act in haste, and that damage perhaps 
cannot be and will not be rectified for years to come. We must not 
inflict damage on our constitutional processes.
  President Bush's proposed Department of Homeland Security is an 
enormous grant of power to the executive branch. I hope that everyone 
who hears me will understand that--an enormous grant of power to the 
executive branch. It constitutes control of 170,000 Federal workers and 
a huge piece of the Federal budget. It will mean a major change in the 
governmental infrastructure of our Nation.
  This may be for keeps. This may be the infrastructure that will last 
through the lifetimes of at least some of us. And we cannot and must 
not close our eyes to the threats that are involved here, by well-
intentioned people I am sure, the threats to the constitutional 
processes that have guided this Nation for 215 years and should 
continue to guide it in the future.
  This Constitution is good enough to guide us through whatever 
emergencies may confront this country. We must not cede this power, 
power that the administration wants but not necessarily needs--but the 
administration wants it. Let's stop, look, and listen and be careful 
what we are doing.
  I wonder how many out of 100 Senators took the time during the recess 
to read the House bill, to read the substitute that is about to be 
proposed by Mr. Lieberman and Mr. Thompson. How many Senators took the 
time to read and to ponder what we are about to do? I did. I am not an 
expert on the House bill or the substitute by Mr. Lieberman. I have not 
put as much time, naturally, by any means, in my study of the Lieberman 
substitute as has he or his counterpart or the members of that 
committee.
  So the members of that committee knew very well what was in the bill. 
But how many other Senators took the time to sit down and read and mark 
and underline and think about the words, the phrases, the sentences 
that are included in this substitute and in the underlying bill?
  Let Senators remember that once we pass a bill in the Senate, which 
we must and which we will, then we in the Senate--half of the 
legislative branch, this half, except for the committee conferees--will 
be out of it. I don't bemoan the fact that I will be out of it, but 
most of the Senate will be out of it. We will have said our piece. We 
will have made our press releases. And we will have had an opportunity 
to offer amendments.
  But how many of us are prepared to offer amendments? How many of us 
have read this legislation? How many in the media know what we are 
talking about and what is in this legislation? The people out there, 
280 million of them, who are represented by 100 Senators, do not have 
the slightest idea what is encompassed in this legislation. They have 
heard the President on the campaign trail talking about this bill: pass 
it, pass it, pass it. They have heard others in the administration. I 
don't have any criticism of that. They naturally want this bill passed.
  We need to look at it. We Senators have a duty to study it and to 
take the time and, if necessary, offer amendments where we believe 
amendments should be offered and the Senate must be given the 
opportunity to work its will. And it will work its will.
  But I am concerned. That is where I am coming from, and I am sure 
there are other Senators who would be equally concerned if they read 
these bills. But they have been busy. Senators are very busy people. I 
know that.
  In a recent column, David Broder wisely pointed out that because the 
mission of the Department of Homeland Security ``is so large and its 
scale is so vast, it is worth taking the time to get it right.''
  That is David Broder, and he got it right when he said that. I will 
continue with his words.

       It is worth taking the time to get it right. Having the 
     bill on the President's desk by the symbolic first 
     anniversary of the terrorist attacks is much less vital than 
     making the design as careful as it can be.

  Hallelujah. That was David Broder. He is right.
  Now let me read what he said without my editorial comment. He said: . 
. . the mission of the Department of

[[Page 15852]]

Homeland Security ``is so large and its scale is so vast, it is worth 
taking the time to get it right. Having the bill on the president's 
desk by the symbolic first anniversary of the terrorist attacks is much 
less vital when making the design as careful as it can be.''
  I remind my colleagues that once the genie is out of the bottle, it 
is gone. It would be difficult to get it back into the bottle. This 
bill is the best, if not the last, opportunity for Congress to make 
sure that we are not unleashing a genie, a very dangerous genie.
  I realize it is not easy to go against the administration for some of 
my colleagues, in an election year especially. But our duty to our 
country and to future generations compels us to do no less. And I 
intend to do no less than stand on my feet and speak my thoughts. This 
is what separates the men from the boys, the women from the girls, and 
the statesmen from the politicians.
  Madam President, how much time do I have remaining?
  What is the time situation with respect to the upcoming vote?
  The PRESIDING OFFICER. We are going into executive session at 12:30.
  Mr. BYRD. I thank the Presiding Officer.
  Madam President, I hope Senators will take a look at this morning's 
Washington Post. On the front page there is a column by Gregg Schneider 
and Sara Kehaulani Goo, Washington Post staff writers. The headline 
reads as follows:

       Twin Missions Overwhelmed TSA. Airport Agency Strives to 
     Create Self, Stop Terror.

  This story that I am about to take excerpts from tells exactly why we 
ought to take time and do this right.
  I read from the column:

       When a gunman opened fire at a Los Angeles International 
     Airport ticket counter on July 4, the nation's new agency in 
     charge of airport security got its first chance to swing into 
     action.
       Instead, it claimed the shooting was outside its 
     jurisdiction.
       After bullets sprayed across the crowded holiday terminal, 
     killing three, the agency's director at the time, John W. 
     Magaw, looked on helplessly as his own spokesmen dismissed 
     the incident as a matter for local police and the FBI. 
     ``That's nuts. That is nuts,'' Magaw said later.
       But by that holiday, with the nation on edge about a 
     terrorist attack, Magaw had lost control of the 
     Transportation Security Administration. He had run the high-
     profile, multibillion-dollar agency far astray from what 
     Congress and the Bush administration said they wanted, 
     alienating everyone from local airport operators to 
     commercial airline pilots.

  Now get this. I continue to read:

       The agency simply couldn't keep up with the twin demands of 
     creating itself and devising a system of stopping terrorists.

  There you are in a nutshell. That is the problem.

       Internally, there was tension over the TSA's mission, with 
     a growing core of leaders steeped in law enforcement at odds 
     with political forces demanding customer service. Magaw and 
     his deputies clashed with key members of Congress and the 
     White House over budgets and left airport managers around the 
     country feeling shut out.
       The fact that the TSA was flat-footed on the day of the 
     most violent attack on U.S. aviation since Sept. 11 
     underscores how, after nearly a year of building a new 
     federal agency to take over airport security, few broad 
     changes have taken place.

  There you are. That is our problem. We are about to create a new 
department of homeland security, which I am for. I will vote for that. 
Then we are about to create 6 directors, and we are about to set up a 
superstructure. In this bill, once we pass the package and send it down 
to the President, we are going to say there it is. You take it. It is 
yours. Then the administration will have the colossal task of 
transitioning, as I read it, 22 agencies.
  I was talking with Senator Lieberman this morning. I was told that 
more likely there will be 28 agencies and offices. There you have it, 
Mr. Administration. It is yours. That is what Congress is about to do. 
It is yours.
  Can one imagine the chaos that is going to occur when all of these 
agencies are supposed to be transitioned into the department of 
security within 13 months, and the people within them. One-hundred and 
seventy thousand Federal employees will have to become accustomed to a 
new culture, once they are transitioned. They will have to move their 
desks, their computers, and their telephones. They will have to get 
acquainted with new associates. They will have new and different 
missions.
  When we talk about the 1947 role model of the National Security Act, 
we are talking about military branches that had the same mission, 
overall. Those were not different missions. These people are going to 
be put into a brand spanking new, polished-chrome metal piece of toy to 
guard the homeland, and to guard the people. All of these people put 
into one agency are going to be concerned about their pay scales, their 
worker rights, and their privacy rights--all of those things. There 
they will be. All yours, Mr. President. Here it is. You asked for it. 
Here it is now so Congress can stand on the sidelines for the next 13 
months.
  I am saying no. Congress should not stand on the sidelines for the 
next 13 months. We have a duty under the Constitution to exercise 
oversight and to see that the agencies are properly brought into the 
six directories.
  I am thinking of the same directorates the committee recommended, the 
same superstructure. I am saying that is fine. But now, when it comes 
to bringing in the 22 agencies or the 28 agencies or the 30 agencies or 
the 25 agencies--I have heard all of these numbers; we do not even know 
the number of agencies--when it comes to fusing those, what are the 
criteria for this agency or that agency or some other agency or some 
part of that agency? What are the criteria by which somebody is going 
to have to be guided in bringing these agencies into the superstructure 
and making them part of the directorates, which are parts of the new 
Department of Homeland Security?
  Who knows? I have not seen anything in my reading, anything in 
writing. I have not heard anything in any way by which these 22 
agencies--I will say 28, since Mr. Lieberman has counted them. What are 
the criteria and what is going to happen?
  Look at what the Post is reporting happened to the brandnew, shiny 
transportation agency, the TSA. And here we are talking about 22 or 25 
or 28 or 30 more agencies, putting them all in. Here, Mr. President. 
Here is what you asked for. Here is the bill. You take it. That is what 
we are about to do, and I do not think we should do it.
  I think Congress should stay in the mix, should continue to exercise 
its oversight, its judgment, give its advice, give its consent, and 
vote up or down as we go along on the procedure.
  Now, I am going to offer an amendment at some point. I may offer 
several amendments, but the first amendment I offer will deal only with 
title I, only with title I. But my concern is that Congress has a 
responsibility, it has a duty to which it must face up, and that duty 
is to keep a hand on this, to maintain oversight. And I think these 22 
agencies--I will quit using 22; I am going to use Joe Lieberman's 
figure, 28--these 28 agencies should be phased in, in an orderly 
process that gives the Congress the time, as we go along, to look at 
what the administration--through this new Secretary of Homeland 
Security, through his recommendations--recommendations are.
  Congress should not just hand this thing over lock, stock, and 
barrel, to this administration, or any other administration, and say: 
Here it is. You take it.
  So here, in microcosm, is the problem. And we are reading about it 
right here in this Washington Post of today. I won't read the whole 
column right now. I may refer to it again later.
  But let me proceed now by saying that the homeland security 
legislation that we will be considering this week has become something 
much more than mere legislation. It has become a political windstorm 
blowing down Pennsylvania Avenue and through the Halls of Congress.
  The President's proposal has been barreling through Congress like a 
Mack truck, threatening to run over anyone who dares to stand in its 
way. And Congress, so far, has cleared a path and cheered on this 
rumbling big rig, without stopping to think seriously about where it is 
ultimately

[[Page 15853]]

headed. Now we are going to think seriously about it.
  The President assures us that he is safely behind the wheel, and that 
all we need to do is give him the ``flexibility''--I use his word, 
``flexibility''--he needs to fight terror immediately, and he will 
handle it from there.
  While the President's assurances may help some people sleep better, I 
am left tossing and turning on my pillow at night. I fear terrorism as 
much as anyone, and I recognize the need for constructive, decisive 
action in these daunting times. But lately I have also been plagued by 
the fear that, in the name of homeland security, we may be jeopardizing 
liberties from within our own Government by unwittingly trading in many 
of the constitutional protections which were designed by the Founding 
Fathers as safeguards against the dangerous tendencies of human nature.
  In Federalist No. 48, James Madison wrote:

       It will not be denied that power is of an encroaching 
     nature and that it ought to be effectually restrained from 
     passing the limits assigned to it.

  Now, that is James Madison:

       It will not be denied that power is of an encroaching 
     nature and that it ought to be effectually restrained from 
     passing the limits assigned to it.

  The President is clearly attempting to remove the limits on his 
power. I don't question his good intention. Maybe he doesn't understand 
what he is doing. But this is clearly an attempt to remove limits on 
the Executive's power, and Congress is doing very little, up to this 
point, to restrain the administration's ambitions.
  I am alarmed that the President is demanding such broad authority 
over an unprecedented amount of resources and information, while at the 
same time asking us to eliminate existing legal restrictions to allow 
him the ``managerial flexibility'' to respond to changing threats. His 
proposal gives the Secretary of Homeland Security almost unlimited 
access to intelligence and law enforcement information without adequate 
protections against misuse of such information. I am willing to give 
the President necessary authority to secure the Nation's safety, but I 
believe we can give him flexibility without giving him a blank check.
  In Federalist No. 48--and Senators and Representatives and other 
people should read the Federalist Papers once again--in Federalist No. 
48 here is what he said:

       An elective despotism was not the government we fought for. 
     . . .

  Nobody is suggesting there be an elective despotism. But I am 
suggesting that we better go very carefully, as we legislate on this 
proposal, that we do not release to the executive branch, by 
legislation, powers that the Constitution guards against.
  This is what Madison says:

       An elective despotism was not the government we fought for. 
     . . .

  We can, in this Senate, very well pass legislation that ends up 
giving to any President--I am not just talking about Mr. Bush--the 
powers that amount to an elective despotism. That is what I am 
concerned about in this legislation--one of the things.

       An elective despotism was not the government we fought for; 
     but one which should not only be founded on free principles, 
     but in which the powers of government should be so divided 
     and balanced among several bodies of magistracy as that no 
     one could transcend their legal limits without being 
     effectually checked and restrained by the others.

  Now, that is what I am saying Congress needs to be aware of. We need 
to be on guard that we do not pass legislation that, in the end, gives 
a President--and there is no assurance that this President will be 
President forever; he may be President for 2 more years or maybe 6 more 
years. Who knows. But the Congress must be on guard in this 
legislation--I know it is very tempting to vote without further delay, 
without any argument, vote for a new department of homeland security. 
And we ought to have it. But it will be very easy for Congress to pass 
legislation that, in the end, results in elective despotism. Madison 
warns us against it.
  The President's proposal cripples internal oversight offices and 
weakens external legal controls on the Department, including 
unnecessary exemptions from public disclosure laws such as the Federal 
Advisory Committee Act and the Freedom of Information Act, allowing the 
Secretary to exercise his broad authority in relative secrecy.
  In many of these areas, Senator Lieberman's committee, working with 
Senator Thompson, has brought in a bill that is, in my judgment, much 
better than the administration's proposal, which is largely reflected 
by the House bill. And at the end of the day, the House bill will be 
before the Senate--at some point, Mr. Lieberman will offer his 
substitute--so that the Senate will have before it both the House bill 
and the Lieberman proposal.
  So what I am saying is not altogether, or even in great part, 
criticism of the product the committee has given to the Senate. I am 
stating my concerns. We cannot brush aside the House bill. It is going 
to be in conference, and we are going into conference, and these 
conferees are going to be up against the House conferees--the House, 
which is under the control of the other party, which is in control of 
the White House. So I do not envy the challenges that are going to be 
before our Senate conferees. I am speaking of my concerns with respect 
to one or both of these measures that will be before the Senate.
  These exemptions reflect the administration's strong antagonism 
toward traditional ``good government'' and ``sunshine'' laws that 
attempt to cast light on government activities and subject them to 
public scrutiny. The administration is seizing on this legislative 
opportunity to weaken these important laws.
  The administration is attempting to gut the traditional protections 
for personal privacy and civil rights abuses from the new Department, 
and the bill that was passed by the House of Representatives 
effectively dismantles most of these safeguards. Unfortunately, the 
Senate doesn't do enough, in my judgment, to restore those checks.
  The Senate bill does require, very generally, that the Secretary and 
the directorate for intelligence establish rules and procedures for 
governing the disclosure of sensitive information. Some of this 
language restricts the use of information to only authorized and 
``official'' purposes, but this restriction is meaningless because the 
vague authority given to the Secretary allows him to claim that almost 
anything he wants to do constitutes an ``official'' purpose.
  In pressuring Congress to pass homeland security legislation, the 
administration is using the ``war on terror'' as a red herring to draw 
attention away from the underlying objectives of the administration's 
proposal, which include expanding the regime of secrecy that has been 
established by the White House to the 22, 25, 28, or 30 agencies of the 
new Department of Homeland Security.
  Once the Department has been legally shrouded in secrecy, the 
President can take advantage of his broad access to information and its 
vague mission and authority to command the ``war'' without scrutiny 
from Congress or the public.
  The President has proclaimed that we are entering a ``new era,'' one 
that will resemble the cold war in its concerns for national security. 
His proposal marks a disturbing start for this era and I am afraid may 
be a sign of things to come. The cold war began with an iron curtain 
descending over Europe. Under this bill, the war on terror may have 
begun with an iron curtain descending around our Government.
  Congress must not defer to executive judgment alone. Congress must 
not trust that this administration, or any other administration, will 
always act in the best interest of the Nation. Absolute trust and 
unquestioning deference are dangerous gifts for the legislature to 
bestow on the executive, even when our leaders have given us no reason 
for doubt.
  Good intentions do not guarantee good government. As Madison tells us 
in Federalist No. 51:

       If men were angels, no government would be necessary. If 
     angels were to govern men,

[[Page 15854]]

     neither external nor internal controls on government would be 
     necessary. In framing a government which is to be 
     administered by men over men, the great difficulty lies in 
     this: You first enable the government to control the 
     governed; and in the next place, oblige it to control itself. 
     A dependence on the people is no doubt the primary control on 
     the government; but experience has taught mankind the 
     necessity of auxiliary precautions.

  Madam President, Justice Brandeis echoed Madison's warning of the 
dangers of relying on the good intentions of government. He wrote:

       Experience should teach us to be most on our guard to 
     protect liberty when the government's purposes are 
     beneficent. Men born to freedom are naturally alert to repel 
     invasion of their liberty by evil minded rulers. The greatest 
     dangers to liberty lurk in insidious encroachment by men of 
     zeal, well-meaning, but without understanding.

  I suspect that this administration means well in its desire to 
mobilize the Government against terror, but so many in the 
administration have come lately--not all, but some. I fear that some of 
what the administration is asking for is a danger to the people's 
liberty.
  In our rush to reorganize the Government, we seem to have forgotten 
the principles upon which the Government was founded. The Constitution 
established a system of divided Government, a system that feared 
tyranny more than it favored efficiency. The Constitution's separation 
of powers and checks and balances were not designed to provide 
managerial flexibility to any President, Democrat or Republican. They 
were designed to limit the power of the state over its citizens by 
ensuring that individual liberties could not be easily abridged by the 
unchallenged authority of any one branch of Government.
  President Harry Truman proposed the most dramatic reorganization of 
the last century, creating the Department of Defense and the CIA in 
response to the new threats of the cold war. But even after he presided 
over such a critical moment of national security, he remained skeptical 
of the need for efficiency and flexibility in the executive branch. 
Truman said:

       When there's too much efficiency in government, you've got 
     a dictator. And it isn't efficiency in government we're 
     after, it's freedom in government. . . .

  That is Truman. That is my favorite Democratic President in our time. 
Following him came Mr. Eisenhower, who I have--at least lately--come to 
believe was the greatest Republican President in our time.
  I continue with Truman's words:

       And if the time ever comes when we concentrate all the 
     power for legislating and for justice in one place, then 
     we've got a dictatorship and we go down the drain the same as 
     all the rest of those republics have.

  Madam President, the administration's proposal makes clear to me that 
it is not freedom in Government the administration is after.
  The Secretary of Homeland Security will become a human link between 
the FBI, the CIA, and local police departments, serving as a ``focal 
point'' for all intelligence information available to the United 
States. I am concerned that in this role he may be able to circumvent 
existing legal restrictions placed on those agencies to protect 
individual privacy, civil rights, and civil liberties.
  The Homeland Security Department will be authorized to draw on the 
resources of almost any relevant agency at the Federal, State, and 
local level, ranging from sensitive international intelligence compiled 
by the CIA and the NSA to surveillance of U.S. citizens by the FBI and 
local police. Many of these agencies were very purposely kept separate 
and distinct, or were given limited jurisdiction or investigative 
powers, in order to reduce abuses of power. However, when the 
Department--this new Department--draws on the resources and information 
of other agencies, it may not necessarily be subject to the same legal 
restraints imposed on those agencies.
  In addition, the civil rights officer and the privacy officer 
established under the administration's plan to uncover abuses in the 
Department are not given enough authority to actually carry out their 
jobs. They are essentially advisers with no real investigative or 
enforcement power. Both officers are responsible for ensuring 
compliance with existing law, but their only legal recourse after 
identifying a problem or violation is to report the problem to the 
Department's inspector general.
  However, the inspector general, in turn, is under no obligation to 
follow up on privacy and civil rights complaints, only an obligation to 
inform Congress of any ``civil rights abuses'' in semi-annual reports. 
If and when the IG does choose to investigate, he will often be unable 
to do so independently as the Inspector General Act intended, because 
this plan provides that the inspector general will be ``under the 
authority, direction, and control of the Secretary''--now get that. 
That ought to be enough to curl your hair. Let me read that again. The 
inspector general will be ``under the authority, direction, and control 
of the Secretary''--meaning the Secretary of Homeland Security--``with 
respect to audits or investigations, or the issuance of subpoenas, 
which require access to sensitive information.'' And the Secretary can 
say no if he determines certain things, which I can read into the 
Record--he determines; if he determines, the Secretary; if he 
determines no, the inspector general is stopped in his tracks. That is 
it. Is that the way the people in this country want it to be? I do not 
believe so.
  Granting the Secretary control over internal investigations puts the 
``fox in charge of the hen house'' whenever the fox claims a national 
security reason for it.
  The inspector general can say: I have a national security reason. You 
have to stop. You cannot investigate further. You cannot subpoena 
witnesses. You cannot because Congress passed the law that the 
administration wanted saying you cannot. So you stop right here in your 
tracks.
  Is that the way the American people want it? No.
  The President's proposal also lets the fox have his way when he uses 
working groups--now get this--to investigate or craft policy. Although 
not included in the Senate bill, the House bill, which will be before 
the Senate likewise, allows the Secretary of Homeland Security to 
exempt advisory groups within the Department from the disclosure 
requirements of the Federal Advisory Committee Act. The practical 
effect of this authority would be to give the Secretary of Homeland 
Security the ability to conduct secret meetings to craft Department 
policy, minimizing interference from Congress and the public.
  This would appear to expand the model of secret policymaking 
currently employed in the administration, the most notable example 
being Vice President Cheney's secret energy working group.
  While the Federal Advisory Committee Act does exempt the Central 
Intelligence Agency and the Federal Reserve from disclosure 
requirements, the justification for doing so cannot support providing 
the same exemption for the Department of Homeland Security.
  The broad authority and domestic jurisdiction of the Department 
distinguish it from the CIA which has no authority to invade the 
privacy of U.S. citizens domestically and whose activities are 
controlled more directly by the President in exercise of his 
constitutional powers over foreign affairs. The exemption for the 
Federal Reserve protects financial information and economic projections 
in order to protect the integrity of the markets.
  While it may be reasonable to excuse the Fed from this kind of public 
disclosure, I am not comfortable in allowing the Secretary of Homeland 
Security to set the level of preparedness in complete secrecy in the 
same way that Alan Greenspan sets interest rates.
  The Federal Advisory Committee Act already allows waivers for 
sensitive information, so there is no compelling national security 
justification for providing this blanket exemption. Removing this 
exemption would not eliminate the Secretary's ability to convene 
committees in secret, but it would make the Secretary and the President 
more accountable--more accountable--for choosing to do so.
  The President is authorized under existing law to determine which 
committees should be exempt from disclosure

[[Page 15855]]

for national security reasons, and he must explain himself every time 
he does so. The bill passed by the House allows the Secretary to exempt 
committees at will, while only paying lipservice to Congress. Both the 
House bill and the Senate bill provide an unnecessary exemption, in my 
viewpoint, from the Freedom of Information Act for critical 
infrastructure information provided by private corporations.
  The FOIA requires public disclosure of Government materials on 
request, but it already provides exemptions for national security 
information, sensitive law enforcement information, and confidential 
business information. The administration's proposal extends these 
exemptions to include any information voluntarily submitted by 
corporations to the Department. As a result of this exemption, this 
corporate information could not be released under the Freedom of 
Information Act for other enforcement purposes, so corporations would 
be allowed to escape liability for any information they submit.
  I have argued, Madam President, that parts of this bill should be put 
off to allow enough time for informed deliberation. I reaffirm my 
objections to rushing into all of these agency transfers and new 
directives. However, these secrecy problems have to be addressed also.
  The President has said that how we respond to this crisis will 
determine what kind of legacy we leave. I agree with the President on 
that point. That is exactly why I suggest to the Members of the Senate 
we should take time to remember the legacy that we have inherited, a 
legacy of liberty and limited Government, and preserve these principles 
in the legacy that we will bequeath.
  This new Department is going to be with us for some time, so we must 
think beyond the next election and act with an eye to the future. This 
Congress needs to make sure we will have some recourse in the event 
that the administration's reorganization does not live up to all of its 
promises. Congress has a role to play in the ongoing supervision of the 
Federal Government, and we should not compromise that role by hastily 
surrendering our constitutional powers.
  I yield the floor.

                          ____________________