[Congressional Record (Bound Edition), Volume 151 (2005), Part 2]
[Senate]
[Pages 2244-2263]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

  NOMINATION OF MICHAEL CHERTOFF TO BE SECRETARY OF HOMELAND SECURITY

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session and resume consideration of the following 
nomination, which the clerk will report.
  The assistant legislative clerk read the nomination of Michael 
Chertoff, of New Jersey, to be Secretary of Homeland Security.
  The PRESIDING OFFICER. Who yields time?
  The Senator from Maine.
  Ms. COLLINS. Mr. President, I yield 5 minutes to the distinguished 
Senator from Tennessee.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. ALEXANDER. Mr. President, I thank the Senator from Maine for 
yielding me time.
  I am in support of the President's nominee, Judge Michael Chertoff. 
He seems to have worked for almost every part of the Federal 
Government, including this body. I heard the Senator from Maine say 
that she had never seen a better witness before her committee.
  As Secretary of Homeland Security, Judge Chertoff will play a very 
important and visible role in our everyday lives, protecting us from 
terrorism, but my purpose today is to highlight another job he has. He 
is also the chief immigration officer. As Secretary, he will oversee 
the Bureau of Citizenship and Immigration Services, the successor to 
the INS, which manages immigration in this country. This job of Judge 
Chertoff is not primarily about keeping people out of the United 
States; it is also about welcoming new Americans into the United 
States.
  The numbers are down some since 2001, but as many as 1 million 
immigrants become new American citizens each year.
  I have attended a number of the ceremonies which are held in Federal 
courthouses all over America every month to welcome and naturalize 
these new citizens. I was in Nashville in December when 50 or 60 people 
from all backgrounds were administered the oath of allegiance by Judge 
Echols. The oath requires each new American to renounce any old 
allegiance and swear a new one to the United States of America.
  Each one of these new citizens has waited at least 5 years. They have 
learned English. They have learned something about U.S. history. They 
have proved they are of good character. Many new citizens have tears in 
their eyes as they recite that oath. It is an inspiring scene. Each of 
these new citizens brings a new background and cultural tradition to 
the rich fabric of American life. That increases our magnificent 
diversity, but diversity is not our most important characteristic.
  Jerusalem is diverse. The Balkans are diverse. Iraq is diverse. A lot 
of the world is diverse. What is unique about the United States of 
America is that we take all of that diversity and make ourselves into 
one country. We are able to say we are all Americans. We do that 
because we unify it with principles and values in which we all believe: 
liberty, equality, rule of law. It also helps that we speak a common 
language. It is hard to be one people if we cannot talk with one 
another. Many of these new citizens and many others living in this 
country lack a solid grasp of our common language or a clear 
understanding of our history and civic culture. Without proficiency in 
English, our common language, and an understanding of our history and 
values, immigrants will find it difficult to integrate themselves into 
our American society.
  So my hope today is that Judge Chertoff does a magnificent job in his 
role at preventing terrorism. My hope also is that he does a good job 
in keeping out of this country people who are not legally supposed to 
be here. But equally important is Secretary Chertoff's role in 
welcoming new citizens to this country, helping them learn our history, 
our common language--helping all of us remember those principles that 
unite us as one country. That is a part of the Department of Homeland 
Security. It is of increasing interest to Members of the Senate on both 
sides of the aisle, and I look forward to working with Judge Chertoff 
in this new role and I support his confirmation.
  The PRESIDING OFFICER. Who yields time? The Senator from Maine.
  Ms. COLLINS. Mr. President, I yield 5 minutes to the distinguished 
Senator from Virginia and, from the minority's time, I will yield 10 
minutes to the distinguished Senator from New York.
  The PRESIDING OFFICER. Without objection, the Senator from Virginia 
is recognized.
  Mr. WARNER. Mr. President, I am privileged to be the new boy on 
Senator Collins's committee. My mission is to try to achieve the 
smoothest working relationship between the Department of Defense, with 
which I have been privileged to work these 27 years in the Senate, and 
the distinguished new department and the committee for homeland defense 
over which my colleague presides as able chairman together with Senator 
Lieberman.
  Just a word or two I want to speak on Judge Chertoff. I, frankly, had 
not met him prior to the President's very wise selection of this able 
individual. I rise today to urge my colleagues to give the strongest 
endorsement possible to this nominee.
  I started my career as a young lawyer, a prosecutor, but my first job 
out of law school was law clerk to a Federal circuit court judge, the 
same position that Judge Chertoff holds today. I recall all through law 
school and the early part of, I guess about 8 or 10 years that I 
practiced law, lawyers always thought: Maybe someday I could be a 
judge, a Federal judge. The whole bar looks up to the judicial branch, 
as they should. It is the third branch of our magnificent Republic. 
When an individual is selected by a President and confirmed in the 
Senate, he or she then dons that black robe, and it is a lifetime 
appointment.
  I was privileged to observe the life of a Federal judge. My judge was 
E. Barrett Prettyman, and I had the privilege of standing on this very 
floor several years ago and recommending the Federal courthouse here in 
Washington be named for Judge Prettyman. I am always grateful to the 
Senate for its wisdom in accepting my recommendation. But I remember 
that judge so well. He had the strongest influence on my life. I 
aspired at one time to be a Federal judge, but I hastily tell my 
colleagues I am not sure I ever would have been qualified, for various 
reasons.
  But when you accept that appointment you take that oath of office for 
life. That is why I, and I think most if not every one of my 
colleagues, spend so much time working with our Presidents to find the 
best qualified people to assume these important jobs in the Federal 
judiciary. But it is a lifetime appointment.
  When I looked at Judge Chertoff in my office, we compared 
experiences. He was a law clerk on the Supreme Court,

[[Page 2245]]

so he had gone through some of the similar experiences that I had as a 
lawyer, and also I was assistant U.S. attorney as was he. I said: You 
have to explain to me why you gave up a lifetime appointment to a 
position in which you can control your hours and largely control your 
vacations and have a magnificent family life and everything else to 
take on this enormous, uncertain challenge.
  He looked me in the eye, and he said: In America, you have to step up 
and be counted when the President and the citizens of this Nation need 
you. I give up this position with great reluctance, but I accept the 
next position and I will give it everything I have ever been taught in 
terms of how to do something for this country.
  That deeply touched me, Madam Chairman. I feel very confident that, 
with the advice and consent of this august body, we will send forth an 
individual eminently qualified to handle this position, and one who 
will bring about the necessary security that this country deserves and 
needs and expects.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New York is recognized.
  Mr. SCHUMER. Mr. President, I also rise to speak in support of the 
nomination of Michael Chertoff.
  Today we vote on one of the most important Cabinet positions in our 
Government, and that is Secretary of the Department of Homeland 
Security. New York, perhaps more than any other State in the Union, 
knows the need for a strong defense at home. Therefore, I take this 
vote very seriously. I have considered carefully Judge Michael 
Chertoff's background. I have considered his experience, and I met with 
him personally to express the needs and concerns of the citizens of New 
York and my own concerns about what we have and have not been doing 
when it comes to homeland security.
  After careful review and after hearing his commitment to work with me 
and other Members of this body, I intend to vote in favor of Judge 
Chertoff's nomination for this vital post. It is clear, crystal clear, 
that Judge Chertoff has the intelligence and the skill to run this 
behemoth Department. There is no question about that. But what has 
really been missing from the Government is an advocate for funds and 
focus in homeland security that will protect New York and the rest of 
the country. Judge Chertoff assured me he would fight within the 
administration for resources that have been missing in homeland 
security.
  It is no secret that, while we have given all the money it takes to 
fight the war on terror overseas, we have shortchanged the domestic war 
on terror at home. Program after program, which we all admit is 
necessary to defend us at home, is shortchanged when it comes to 
funding and focus.
  The Department of Homeland Security was run by admirable people, but 
their constitution was such that when they went into the Oval Office, 
they didn't make much of a fight for the things that were necessary.
  I asked Judge Chertoff about that when I met him. I said: I am sure 
you are not going to make a public fight, but are you privately, within 
the confines of the Oval Office, going to demand the funds that this 
Department needs to make us secure? He told me he would.
  There is no doubt Judge Chertoff has been blessed with a brilliant 
mind, and he has formidable experience as a prosecutor, as Chief of the 
Justice Department's Criminal Division, and more recently as an 
appellate judge. He now faces the toughest challenge of his thus far 
impressive career. He will be called upon to lead and manage a 
Department of 170,000 employees, forged out of 22 separate Government 
agencies, still not all working together. That is no small task.
  Judge Chertoff will have to be smart, tough, dedicated, and savvy--
but a keen mind and a strong work ethic will not be enough. As I have 
said, what has been missing from homeland security has been funds and 
focus. A color-coded warning system can have all the colors in the 
rainbow, but without adequate funding for vital programs and without a 
laser-like focus, we are not serving the people well. Judge Chertoff 
assured me he would fight hard for the funds and maintain a strong 
focus to maintain these programs at the Department if confirmed. If my 
reading of his character and personality is correct, he will make those 
fights inside the administration that have been lacking thus far.
  Judge Chertoff, of course, will also have to commit himself to 
working with Members of Congress in a bipartisan way, so together we 
can best protect the homeland.
  Unfortunately, as I said in the past, sometimes this administration 
has acted with too much secrecy and too often it has failed to consult 
Congress. Too often it behaved as if it has a monopoly on wisdom. I am 
optimistic that Judge Chertoff will, as he has assured me, work with us 
in a bipartisan way. I have also talked to him about the need for 
changing the funding formula so funds are not distributed simply as if 
they were dropped from an airplane, but go to the places of the 
greatest need.
  I have told him it is unconscionable Wyoming gets more on a per-
capita basis for homeland security than New York. He has told me that 
we have a real problem with the funding formula; he knows it has to be 
changed and he would work to change it.
  I have also raised with Judge Chertoff the serious problems of 
staffing we have at the northern border with Canada. New York, of 
course, has a 300-mile such border. As of last year, we were short more 
than 1,400 Customs and Border Protection officers on that border. Judge 
Chertoff promised to make securing the northern border a priority, 
should he be confirmed by the Senate.
  I also pressed Judge Chertoff on other matters, areas in which the 
Government should do more to protect the homeland. I discussed with him 
the creation of an assistant secretary for cybersecurity, something I 
have raised before, given reports of the mounting attacks on our 
computer systems. On these and on other matters, Judge Chertoff has 
shown a willingness to deliberate and be openminded and that means a 
lot in my book.
  In conclusion, the task of the next Secretary will be difficult. The 
stakes couldn't be higher. Based on his record of achievement and my 
personal meetings with him, I have high hopes for Judge Chertoff. I 
hope and pray he lives up to those high hopes. I will vote yes on the 
nomination of Michael Chertoff as Secretary of the Department of 
Homeland Security.
  Ms. COLLINS. Mr. President, I thank my colleague from New York for 
his excellent statement.
  I see a very valuable member of the committee, the Senator from 
Hawaii, is here to speak. I am prepared to yield to him 10 minutes from 
the minority side.
  The PRESIDING OFFICER. The Senator from Hawaii.
  Mr. AKAKA. Mr. President, I rise today to discuss the nomination of 
Judge Michael Chertoff to be Secretary of the Department of Homeland 
Security, DHS.
  Since the inception of DHS in 2003, Secretary Tom Ridge has led the 
department with strength and grace. His tenure sets a high standard for 
future secretaries to meet. I would like to take this opportunity to 
thank Secretary Ridge for his hard work and dedication to his country.
  As a member of the Homeland Security and Governmental Affairs 
Committee, I was able to discuss with Judge Chertoff his positions on 
issues such as the DHS personnel regulations, civil liberties, and 
bioterrorism. Judge Chertoff expressed his commitment to these issues 
and promised he would investigate and report back to the committee on a 
number of DHS policies of concern to me.
  There were five main points that I raised with Judge Chertoff. First, 
I asked for his assurance that he will defend the Constitution to 
safeguard our civil liberties. The price of security should never erode 
our constitutional freedoms, which are essential to the preservation of 
this democracy. One specific activity I have concerns about is data 
mining, which could involve the collection of personal data that could

[[Page 2246]]

violate an individual's privacy rights. Judge Chertoff affirmed his 
commitment to liberty and privacy, and I will continue to monitor DHS 
closely to ensure that he fulfills that commitment.
  We also discussed the just-released personnel regulations covering 
the 180,000 men and women who staff DHS. To make these new regulations 
work, there must be significant and meaningful outreach to this 
dedicated workforce, their unions, and their managers. A well-managed 
organization values employee input and understands the important role 
employees play in protecting against mismanagement. To undermine 
opportunities for employees to voice concerns or even have notice of 
departmental changes unnecessarily harms workers.
  My third concern is the protection of whistleblower rights in the 
department. Whistleblowers alert Congress and the public to threats to 
health, waste of taxpayer money, and other information vital to running 
an effective and efficient government. I asked Judge Chertoff to pledge 
to protect whistleblowers and foster an open work environment that 
promotes the disclosure of Government mismanagement and Government 
illegality. In response, he promised ``to support whistleblowers and to 
support candid assessments by employees when there are problems in the 
department.'' I am pleased he acknowledges the importance of 
whistleblowers to a Federal agency and has vowed to protect their 
rights. As ranking member of the Subcommittee on Oversight of 
Government Management, the Federal Workforce, and the District of 
Columbia, and the author of whistleblower protection legislation, I 
will be monitoring the department closely to ensure that Judge Chertoff 
follows through on this promise.
  The fourth issue on which I asked for Judge Chertoff's commitment was 
bioterrorism and, more specifically, agriculture security. Since 2001, 
I have urged the administration to develop a coordinated response to 
bioterrorism and agroterrorism through legislation, which is critical 
to the health and safety of Americans.
  Yesterday, I had the opportunity to participate in a gaming exercise 
called ``Scarlet Shield'' at the National Defense University that 
postulated a bioterrorist attack. This exercise brought home to me the 
need to do much more in ensuring an effective, coordinated response.
  I will introduce shortly the Homeland Security Food and Agriculture 
Act of 2005, which will improve State, local, and tribal governments' 
ability to respond to an attack on the food supply and facilitate DHS's 
coordination with other Federal agencies with food and agriculture 
responsibilities. Judge Chertoff agrees with me that bioterrorism is 
one of the greatest threats our Nation currently faces, and as such I 
hope I can count on his support for my bill.
  The final issue I discussed with the Judge is the security challenges 
for my home State of Hawaii, 2,500 miles from the West Coast. Being the 
only island State, Hawaii has been blessed with diverse and 
breathtaking geography and a unique culture. However, its geographic 
location poses challenges to securing the State from asymmetric 
threats. For example, when disaster strikes, Hawaii cannot call on 
neighboring States for assistance due to distance and time difference. 
Our eight inhabited islands must be self sufficient. For that reason, I 
have established positive working relationships with Secretary Ridge 
and senior policymakers from DHS as well as from PACOM and NORTHCOM to 
ensure that when national homeland security policies are being 
formulated, the needs of Hawaii are kept under consideration. Judge 
Chertoff promised to be mindful of these unique needs and to continue 
the positive relationship Hawaii has enjoyed with Secretary Ridge.
  I also note I am pleased Judge Chertoff has stressed the importance 
of close cooperation with Congress, particularly the Homeland Security 
and Governmental Affairs Committee, and has promised to provide the 
information we need to fulfill our oversight responsibilities.
  With Judge Chertoff's assurances that he will protect civil liberties 
and whistleblower rights, work openly with Congress, and prioritize the 
other issues I have detailed today, I will support his nomination to be 
the Secretary of Homeland Security. I believe he has the 
professionalism and the commitment to serve the department well, and I 
hope we, in the Congress, will enjoy a long and productive relationship 
with him.
  Thank you very much, Madam Chairman.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Mr. President, I thank my colleague from Hawaii for his 
excellent statement. He is a very valuable member of the committee, and 
I very much enjoy working with him.
  I rise again today in support of the nomination of Judge Michael 
Chertoff to be the new Secretary of Homeland Security. As the Presiding 
Officer knows better than most, this is one of the most challenging and 
critical jobs in the entire Federal Government. Judge Chertoff is 
clearly the right person to take the helm of this Department, and it is 
past time to put him in that post.
  The Committee on Homeland Security and Governmental Affairs held a 
nomination hearing for Judge Chertoff on February 2. It was a long and 
thorough hearing. Judge Chertoff answered every question posed to him 
fully and candidly. His responses to more than 250 written questions my 
committee presented to him were just as forthright. His nomination was 
endorsed by a unanimous vote.
  I mention this because there should be no impression among our 
colleagues that our committee did not do a thorough job in questioning 
Judge Chertoff. To the contrary, he was subjected to hundreds of 
questions. He responded to every question posed to him at our 
committee's lengthy nomination hearing. And every member of the 
committee, on both sides of the aisle, had ample opportunity to 
question Judge Chertoff on whatever issues they wished to raise with 
him.
  In fact, I am aware of no opposition to his nomination. Virtually the 
only issue we have debated during the course of these proceedings is 
one that I believe has no bearing whatsoever on Judge Chertoff's 
fitness to serve in this critical capacity. This issue is the demand, 
by a few of our colleagues, for information regarding the FBI's 
personnel working at Guantanamo Bay's detention facility and what 
information they may have had about interrogation techniques used on 
detainees by Department of Defense personnel.
  Let me make clear that all of us have concerns about the proper and 
humane treatment of our detainees. The distinguished chairman of the 
Armed Services Committee, who also serves on our committee, held a 
number of hearings to explore the treatment of detainees. It is my 
understanding that the Senate Intelligence Committee is also embarking 
on an investigation of the treatment of detainees by CIA personnel. So 
this is an issue. But the problem is, this is not an issue in which 
Judge Chertoff has been involved in setting policy. He is being asked 
for information he simply does not have.
  At our committee's nomination hearing, Judge Chertoff was asked about 
these concerns by my distinguished colleague from Michigan, Senator 
Levin. Judge Chertoff's answer was unequivocal. Let me read it to you. 
He said:

       I was not aware during my tenure at the Department of 
     Justice that there were practices at Guantanamo, if there 
     were practices at Guantanamo, that would be torture or 
     anything even approaching torture.

  He was not aware--not he did not recall not he was not sure; He was 
not aware. That is unambiguous testimony.
  Our responsibility as Senators to advise and consent on executive 
branch nominees is a solemn one. It is one, as chairman of the 
committee, I take very seriously. If there were a good reason to delay 
consideration of a nomination in order to secure important information, 
then delay would be appropriate; it would be called for. But expecting 
a nominee to provide information that he has sworn under oath

[[Page 2247]]

he does not know is not a good reason for delaying his nomination.
  The questions about Judge Chertoff's knowledge of the treatment of 
detainees have been asked and answered, repeatedly. They have been 
asked in prehearing questions. They have been asked at the hearing. And 
they have been asked posthearing.
  Judge Michael Chertoff is eminently qualified for this important 
position. In his distinguished career, he has established a strong 
reputation as a tough prosecutor. But he has established a reputation 
as a fierce defender of civil liberties. His position on the balance 
between these two critical roles was made clear in his testimony before 
the committee. He said:

       I believe that we cannot live in liberty without security, 
     but we would not want to live in security without liberty.

  I cannot think of a more eloquent statement by a nominee, showing 
us--demonstrating beyond a doubt--he clearly understands that as he 
increases security for our Nation, he must be ever mindful of privacy 
rights, of civil liberties, of the very freedoms that define us as 
Americans, and that we cherish. Indeed, we would be handing the 
terrorists a victory if we so compromised our freedoms in the name of 
security. Judge Chertoff understands that tension, that balance, the 
need for constant evaluation.
  Judge Chertoff has also demonstrated a great ability to work with law 
enforcement agencies at all levels of Government. He has a keen 
understanding of the broad range of homeland security vulnerabilities 
faced by States and communities throughout the country.
  When I have talked to law enforcement officials from Maine to 
California about Judge Chertoff, they have unanimously and 
enthusiastically embraced his nomination. They know he will listen to 
State and local law enforcement, and that he views them as partners in 
our fight to tighten and improve our homeland security.
  I point out that Judge Chertoff was confirmed three times previously 
by this body. He was confirmed overwhelmingly by both sides of the 
aisle 2 years ago for one of the highest courts in the land. And now, 
having attained a lifelong appointment at the pinnacle of his legal 
profession, he nevertheless is giving that up. He is giving up a 
lifetime appointment on one of the most prestigious courts in the 
country to step forward to serve our Nation in one of the most 
difficult jobs imaginable, one of the most thankless jobs in the 
Federal Government.
  I remind my colleagues of what he told our committee when I asked him 
why he was willing to give up that judgeship, why he was willing to 
make that sacrifice. He said--and his words are eloquent--

       September 11th and the challenge it posed was, at least to 
     my lights, the greatest challenge of my generation, and it 
     was one that touched me both personally and in my work at the 
     Department of Justice.
       The call to serve in helping to protect America was the one 
     call I could not decline.

  We are fortunate to have an individual of Michael Chertoff's quality, 
with his commitment to public service, who is willing to answer the 
call of his country. I hope he will be unanimously confirmed later this 
afternoon.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Ms. COLLINS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. COLLINS. Mr. President, I ask unanimous consent to speak as in 
morning business for up to 10 minutes and that this speech not 
interrupt the debate on the Chertoff nomination.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. COLLINS. Mr. President, I will withhold that request so that the 
Senator from New Jersey, who has just come to the Chamber, may speak on 
the nomination. I yield him 10 minutes from the minority side.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from New Jersey.
  Mr. LAUTENBERG. Mr. President, I thank the chairman of the 
Governmental Affairs Committee for that courtesy. This is a task we are 
pleased to take on. For me, it is a moment of special significance. We 
are proud of the fact that Judge Michael Chertoff, the nominee to be 
Secretary of Homeland Security, is from New Jersey. I hope we are going 
to see a strong vote for his confirmation.
  I thank our chairman and leader in the Governmental Affairs Committee 
for her persistence in moving some very important matters through that 
committee. She worked very hard at it. First it was the intelligence 
reform bill. While I was annoyed that I had to work Saturdays and other 
days, the fact is, without the diligence shown by the Senator from 
Maine, we would not have gotten it through. We were on the edge of the 
precipice when finally it passed, and I was enthusiastic to try to be 
of help there. So it is with this issue as well.
  This is an important day for America. We all are concerned about the 
issue that haunts us constantly. Memories of 9/11 will never leave the 
minds of those who were alive or who study American history in the 
future. It was a terrible day for America. We live every day with the 
remnants of that reminder.
  This morning, in the Commerce Committee on which I sit, we had a 
discussion on aviation safety and baggage security requirements. I came 
down this morning from New Jersey and, because of some security 
involvements, was unable to catch two airplanes. But it had to be done. 
It was not that I was particularly suspicious looking, but there was a 
line to get through, and that is what happens. So we are always 
reminded. Go into a building, popular places, and you cannot go into 
those places, wherever they are, whether they are concerts or whether 
they are educational forums, if it has any volume of attendance, you 
will invariably see the security process at play. We are worried about 
our families and our society, how we function.
  Judge Chertoff has been selected to be the next Secretary for 
Homeland Security. It is fair to say that Secretary Ridge did a good 
job in trying to amalgamate all these parts into an organization with 
180,000 people. It is an enormous task. Fortunately, the foresight to 
name someone such as Michael Chertoff to this post did present an 
unusual and appropriate candidate. He received undergraduate law 
degrees with honor from Harvard University. After law school, he 
clerked on the Second Circuit Court of Appeals. Following that 
clerkship, he went on to serve as a clerk for a great New Jerseyan, 
Supreme Court Justice William J. Brennan.
  In 1990, Michael Chertoff, in his meteoric rise to the top because of 
his ability, became the U.S. attorney for the District of New Jersey. 
During that tenure, less than 4 years, he was so aggressive in tackling 
organized crime, public corruption, health care, and bank fraud, with 
great success in making the perpetrators of these crimes pay the price 
and get out of the community orbit so we could approach things 
correctly and honestly.
  Michael Chertoff also played a critical role in helping the New 
Jersey State legislature investigate racial profiling in our State. It 
was a blight on our community. Driving while Black should not be a 
crime, and we identified that very clearly. As a matter of fact, oddly 
enough, the present attorney general of the State of New Jersey, a 
fellow named Peter Harvey, distinguished attorney and outstanding 
member of the Governor's cabinet, was stopped on one of our highways. 
He had pulled into a restaurant parking lot, and a policeman came over 
and asked to check his license and to inspect his car for no reason 
other than the fact that he was Black. There was no other reason. He 
had no suspicion surrounding his presence. Yet our attorney general, 
then a lawyer, was stopped because of color. That should not be a 
crime. Thanks in part to Judge Chertoff's efforts, the State 
legislature passed a bill to ban racial profiling. That prompted me to 
introduce the first bill in the U.S. Senate to address this issue. The 
results have been excellent.

[[Page 2248]]

  Judge Chertoff now serves on the prestigious U.S. Court of Appeals 
for the Third Circuit. A good measure of his commitment to public 
service, one he has been questioned about publicly in place after 
place, including our committee, is the question as to why he would give 
up a lifetime tenure on the second highest court in the land to accept 
a call to duty. We hope this tenure will be better, but it will have to 
be earned every day of his career.
  The mission of the Department of Homeland Security is critical to our 
country and to my State of New Jersey. On September 11, 2001, 700 of 
the almost 3,000 people who perished that day came from the State of 
New Jersey. There is hardly anyone in our State who didn't know someone 
or some family member of someone who died that day in the World Trade 
Center.
  I was a commissioner of the Port Authority of New York and New Jersey 
when I was elected to the Senate, and those Trade Center buildings were 
kind of a business home for me.
  From the location where I live now, I could see the silhouette and 
the trade centers always as a landmark. It was a pleasure to get up in 
the morning and see the sun coming over the tops of those buildings. 
Yes, when we saw what happened that day, smoke rising from the World 
Trade Center buildings, as each one collapsed in a crush of flames and 
debris, that can never be forgotten. The New York/New Jersey region 
bore the brunt of those attacks on that terrible day.
  It continues to be identified, by the way, by the FBI as the most at-
risk area for terrorist attack. The 2 miles that go from Newark Liberty 
Airport to the New York/New Jersey harbor are said by the FBI to be the 
most inviting targets for terrorists. Judge Chertoff understands this. 
When Senator Corzine and I talked with Michael Chertoff, we didn't have 
to remind him about what that area looks like, what that stretch of 
land is like that could be so inviting to terrorists. I am confident 
Judge Chertoff will work to target homeland security grants to areas 
where the actual risk and threat of terrorism are the greatest.
  This is not just about New York and New Jersey. There are many high-
risk States--some are colored red in the political description that we 
use today, and some are blue. Examples: Texas, Florida, California, 
Georgia, Illinois, Virginia--the list goes on of States where there are 
inviting targets for terrorists. These high-risk States are not getting 
enough funding because, under current law, 40 percent of all homeland 
security grants--over $1 billion each year--is given to each and every 
State regardless of risk and threat. That doesn't make sense.
  The PRESIDING OFFICER (Mr. Coleman). The Senator has used his 10 
minutes.
  Mr. LAUTENBERG. Mr. President, I ask unanimous consent that I be 
permitted 5 more minutes.
  The PRESIDING OFFICER. Is there objection?
  Ms. COLLINS. Mr. President, I will make clear that it is coming from 
the Democrats' time.
  Mr. LAUTENBERG. We are glad to take that responsibility. I may ask 
for a minute or two more.
  The PRESIDING OFFICER. The Senator is recognized for 5 more minutes.
  Mr. LAUTENBERG. Mr. President, the 9/11 Commission report stated:

       Homeland security assistance should be based strictly on an 
     assessment of risks and vulnerabilities. Federal homeland 
     security assistance should not remain a program for general 
     revenue sharing.

  The 9/11 Commission correctly understood that homeland security is 
too important to be caught up in pork-barrel politics. That is why 
Senator Corzine and I introduced a bill last week, S. 308, requiring 
that all homeland security grants for terrorism prevention and 
preparedness be based on relative risks, threats, and vulnerabilities. 
I hope my colleagues will see that that is in the national interest and 
support that legislation. I know Judge Chertoff understands that 
problem. He is a highly intelligent, competent, and dedicated public 
servant who has compiled a number of impressive accomplishments in all 
three branches of the Federal Government. I ask my colleagues to vote 
to confirm him.
  I would like to add a word. Right now, we are talking about whether 
the minority is obstructing progress on different issues--Social 
Security and other legislation that is before us that needs attention. 
Here is an example of where we can arrive at a consensus view with 
dispatch--get it done. We know Judge Chertoff is an excellent 
candidate, but that is not to say there may not be a vote against him. 
There were votes against the confirmation of Secretary Condoleezza 
Rice. There was a difference of view. It was the same thing with Mr. 
Gonzales. But it reflects the fact that the minority is represented. 
There were many people from the Democratic side who voted for Secretary 
Rice and for Attorney General Gonzales. But why is there a move 
underway--I use this opportunity to say this--to undercut the voice of 
the minority? It was said by our leader here that 48 million people 
voted Democrat in the last Presidential election. Do we want to say 
that those voices should not be heard? Never.
  Mr. President, I know you and our chairperson, Senator Collins, were 
elected with good support from your constituents. Does that free you 
from representing the part of the constituency that didn't vote for 
you? Not at all. We have to recognize that schemes that would deprive 
the minority from registering their point of view are against the 
Constitution. It is against the fabric of our democratic society to say 
if you didn't vote for us, we are going to nail you; you are not going 
to have your view; you are obstructionists. That is not right. Here we 
have a chance once again to express some bipartisanship by voting for 
an outstanding candidate to be the next Secretary of Homeland Security.
  I yield the floor.
  Mr. JEFFORDS. Mr. President, We are here today discussing the 
nomination of Judge Michael Chertoff to be the next Secretary of the 
United States Department of Homeland Security.
  Let me begin by thanking Secretary Ridge for all he did in leading 
the department through its creation and start-up. It was a difficult 
job and the Nation owes him a debt of gratitude for tackling this 
difficult task.
  I opposed the creation of the Department of Homeland Security, in 
part, because I was concerned that by combining disparate areas of the 
Federal Government we could create more problems than benefits. Several 
recent reports from the Government Accountability Office have shown 
that this is a valid concern.
  The next Secretary of the Homeland Security Department will need to 
focus time and energy on ensuring that the various divisions within the 
department become integrated. A separate and divided Department of 
Homeland Security cannot work to increase our national security. Our 
best chance for preventing another terrorist attack relies on a 
coordinated and well run agency. If this does not occur, I fear that my 
original concern regarding the creation of this entity will be 
realized.
  Judge Chertoff has an impressive resume and, in fact, has already 
been confirmed by the Senate for several positions. His experience 
includes serving as a Federal appellate court judge, United States 
Attorney, and head of the Criminal Division at the United States 
Department of Justice. However, questions have been raised about the 
potential involvement of Judge Chertoff in the prison abuse scandals, 
an issue that was pivotal in my opposition to Judge Gonzales being 
confirmed as the United States Attorney General.
  Senators Levin and Lieberman have been working to determine whether 
Judge Chertoff had any knowledge about the scandal, and they deserve 
our profound thanks. However, as in too many cases, this administration 
has made a decision to keep much of the information from the public. 
The citizens of the United States deserve honesty and openness from the 
government.
  The information that has been revealed shows that Judge Chertoff had 
no knowledge or involvement in the torture scandal. I must make a 
decision based on the record I have in front

[[Page 2249]]

of me, not on the possibility of the record I do not know. Reviewing 
this record leads me to believe that Judge Chertoff would be capable of 
performing the duties of Secretary of the Department of Homeland 
Security, and I will thus support his confirmation to that position.
  It is my hope that Judge Chertoff will complete the work that 
Secretary Ridge began and create an integrated Department of Homeland 
Security. I also hope that Judge Chertoff will be able to lead by 
example and create the open environment at the Department of Homeland 
Security that my constituents and the citizens of this Nation deserve 
and expect.
  It will take many hours of hard work and it will not be easy. I wish 
him the best of luck in accomplishing the task.
  Mr. HATCH. Mr. President, today I rise in strong support of the 
nomination of Judge Michael Chertoff to become Secretary of Homeland 
Security.
  Voting in favor of Judge Chertoff and commending him on his 
remarkable accomplishments is beginning to become a habit for us.
  At the beginning of President Bush's first term, Judge Chertoff was 
nominated to become Assistant Attorney General for the Criminal 
Division. To this position, he brought years of experience as a Federal 
prosecutor in New York and a highly successful term as the U.S. 
attorney for the District of NewJersey.
  As a prosecutor, Judge Chertoff handled a wide variety of complex 
crimes that included successfully prosecuting a RICO murder case 
involving the third-ranking member of the Genovese La Cosa Nostra 
Family and others. The principal defendants were convicted of 
conspiring to murder John Gotti and murdering a mob associate. They 
each received 75 to 80 year prison terms.
  He also successfully prosecuted the Mafia Commission Case, which 
charged the bosses of all five New York La Cosa Nostra Families with 
operating a national commission through a pattern of racketeering acts 
such as extortion, loan sharking, and the murders of a mafia boss and 
two associates.
  Upon his confirmation, Mr. Chertoff ran the Criminal Division of the 
Department of Justice during the trying days after September 11. As 
Senator Collins stated:

     since 9/11, Judge Chertoff has established himself as a 
     leading expert on the legal and national security issues 
     surrounding the war on terror.

  After this period, in which I worked closely with the Criminal 
Division of the Justice Department to formulate the PATRIOT ACT, Judge 
Chertoff was nominated to the third Circuit and was confirmed by a vote 
of 88 to 1.
  As we all know, becoming a judge on the 3rd Circuit is a lifetime 
appointment and the culminating achievement of many outstanding legal 
careers. Few leave the bench before retirement. However, Judge Chertoff 
is not a man who will shirk from his duty. His nation called and asked 
him to sacrifice. He answered that call and stood up to be counted 
during a period of war.
  This is true not only for the time that he spent affiliated with the 
Justice Department but in his everyday practice. For example, Judge 
Chertoff served as special counsel to the New Jersey Senate Judiciary 
Committee in its investigation of racial profiling.
  Under his counsel, the committee held nine hearings examining racial 
profiling allegations, concluding that the former attorney general had 
misled the committee and had attempted to cover up the extent of racial 
profiling in New Jersey from the U.S. Department of Justice.
  After a convicted rapist was mistakenly released from prison, Mr. 
Chertoff again served as special counsel for the New Jersey Senate 
Judiciary Committee during its hearings into the application of Megan's 
Law, which requires State correction officials to notify prosecutors 90 
days prior to the release of a sex offender, and the reasons why it was 
not being systematically employed by the State.
  Mr. Chertoff also represented three indigent defendants on death row 
in Arkansas through a program operated by the NAACP Legal Defense Fund. 
The death sentences of all three defendants were overturned on the 
appeal that he handled.
  I understand that Judge Chertoff received the unanimous approval of 
the Homeland Security and Governmental Affairs Committee, with one 
member voting ``present.'' I believe that this is not only a reflection 
on the judge's credentials but a realization that securing the homeland 
is not a partisan issue, but a commitment by the Government to its 
people that we will find the best leaders to defend our Nation. Judge 
Chertoff time and time again has set the standard by which others will 
have to follow.
  Mr. President, it has been my privilege to know Judge Chertoff for a 
number of years and I can honestly say that the President has made an 
inspired decision in this nomination.
  Mr. SALAZAR. Mr. President, I rise today to discuss the nomination of 
Judge Michael Chertoff to be our Nation's second Homeland Security 
Secretary.
  Our next Homeland Security chief will face a number of urgent 
challenges. I believe the most pressing of those will be better 
coordinating our Federal, State and local homeland security personnel.
  When I was Colorado's attorney general, I started a new effort to 
bring district attorneys, police departments and sheriffs together to 
foster interagency cooperation. That was tough, but it allowed us to 
coordinate and fund better law enforcement training, and better 
prosecute gang violence, fight senior financial fraud, establish school 
hotlines and many other vital efforts to fight crime that knows no 
jurisdictional boundaries.
  The challenge for DHS is, of course, even larger.
  Unfortunately, 3 years after 9/11 there is a huge gap between 
Washington and our first responders on the ground. In his fiscal year 
2006 budget, the President proposed consolidating and reducing funding 
for State and local heroes.
  At a time when our law enforcement agencies are being asked to do 
more with less, the President apparently believes they should have even 
less. The President's budget for next year eliminates funding for new 
hires under the COPS grants, which have helped to put 1,289 additional 
officers on the streets in Colorado. The President's budget also calls 
for a 24 percent cut in homeland security grants to States and a 
complete elimination of grants to rural fire fighters.
  At the same time, the Homeland Security grant money that is available 
is not flowing effectively to State and local agencies. Police, fire 
and emergency medical departments are not getting the help they need. 
Worse yet, critical anti-terrorism intelligence is not getting to the 
law enforcement personnel on the ground who can act on it.
  I met with Mike Chertoff and he promised me that he would work to 
better coordinate Federal, State and local agencies. I appreciated his 
candor in our meeting, but I am very disappointed to see his 
unwillingness to respond to a series of very straightforward questions 
posed by Senators Levin and Lieberman.
  Here is why this matters: we need a straight-shooting and straight-
talking person in this job. Judge Chertoff will face the awesome task 
of wrangling the 180,000 employees and 22 agencies that form the 
Department of Homeland Security. Secretary Tom Ridge started the 
process of cutting the bureaucratic red tape and integrating the 
department. DHS took a number of steps, including establishing an 
Operational Integration Staff, but a great deal is still left to do.
  Judge Chertoff has experience moving unwieldy bureaucracy in times of 
crisis. As Assistant Attorney General of the Criminal Division of the 
Department of Justice from 2001-2003, Chertoff shared information and 
coordinated antiterrorism efforts not only across DOJ, but also with 
DHS and foreign law enforcement. Chertoff also pushed resources to the 
field where they were needed most.
  Chertoff was essentially the Nation's attorney as it prosecuted the 
war on terrorism. I know a little about this. As Colorado's former top 
attorney, I can tell my colleagues that one needs a

[[Page 2250]]

good lawyer to fight crime and prevent terror.
  Chertoff will also have to balance the need to fight terrorism with 
the need to preserve our freedom.
  This is a difficult balance to achieve. In the last few years, we 
have faced some difficult choices. The administration has detained 
terrorism suspects for long periods without access to an attorney. They 
have tried to use military tribunals instead of civilian courts. And 
worst of all, the administration's uneven record on adherence to the 
Geneva Convention and on the use of torture is an affront to our 
American ideals.
  Chertoff has expressed his belief that torture is wrong. He expressed 
his philosophy during his confirmation hearing: ``We cannot live in 
liberty without security, but we would not want to live in security 
without liberty.''
  Judge Chertoff has said all the right things about preserving civil 
liberties. But we will face numerous threats to our security over the 
next 4 years, and we will be faced with even tougher choices. It is my 
sincere hope that Chertoff will do a better job than his predecessors 
have done in allowing us to live with both security and liberty.
  What strikes me most about Mike Chertoff is his commitment to public 
service. Two years ago, Chertoff was confirmed for a lifetime 
appointment to the 3rd U.S. Circuit Court of Appeals. Chertoff could 
easily have kept that seat forever, but he stepped down from that 
secure job to face another political gauntlet. In short, when duty 
called, Judge Chertoff answered.
  You could not ask for a tougher job in Washington than Homeland 
Security Secretary. I am hopeful Judge Chertoff is the right person for 
the job.
  Mr. CORZINE. Mr. President, I rise today in strong support of the 
confirmation of Michael Chertoff to be Secretary of Homeland Security. 
He is an extraordinary professional and a remarkably talented lawyer. 
He is highly intelligent, honorable, and impartial. He is also a 
straight shooter, which is exactly what we need right now in this 
position. He is also a personal friend.
  Mr. Chertoff has impeccable credentials--not the least of which is 
being a native New Jerseyan. He attended Harvard College and Harvard 
Law School, where he was editor of the Harvard Law Review. He then 
served as a Supreme Court law clerk. In private practice and public 
service, he developed a reputation as a brilliant, tough, fair, and 
truly world class litigator, and earned the respect of his peers and 
adversaries. Indeed, one New Jersey paper has even suggested he might 
be New Jersey's ``Lawyer Laureate.''
  In recent years, Judge Chertoff has served as Assistant Attorney 
General for the Criminal Division and circuit judge for the Third 
Circuit. In each of these capacities and throughout his career, he has 
served our Nation exceptionally well. So when Judge Chertoff told me 
recently that this position, as Secretary of Homeland Security, is the 
most important task he has ever undertaken in his public career, I took 
notice. Given his commitment to public service and the distinguished 
results of his remarkable career, this statement speaks for itself.
  I wish to emphasize one particular aspect of Judge Chertoff's career: 
his role in helping the New Jersey State legislature investigate racial 
profiling. As special counsel to the State senate Judiciary Committee, 
he led the committee probe into how top State officials handled racial 
profiling by the State Police. His work was bipartisan, objective, 
balanced, and thoroughly professional, and helped expose the fact that 
for too long, State authorities were aware that statistics showed 
minority motorists were being treated unequally by some law enforcement 
officials, and yet ignored the problem. This landmark racial profiling 
investigation demonstrated Judge Chertoff's ability to balance the 
State's responsibility to provide for the public safety with protecting 
our citizens' civil liberties.
  Judge Chertoff is uniquely positioned to undertake the enormous 
challenges that come with the position of Secretary of Homeland 
Security. Particularly important to the citizens of New Jersey is his 
understanding of the critical importance of allocating our homeland 
security resources to those areas of the country where the risks and 
vulnerabilities are greatest.
  New Jersey is on the front lines of terrorism. We lost 700 people on 
September 11, 2001. Two of the 9/11 terrorists were based in New 
Jersey, and the anthrax that hit this institution originated in New 
Jersey. The Post Office in Hamilton, NJ, where the anthrax was sent, 
has taken years to clean up and will finally reopen next week. The 
costs are expected to be $72 million for decontamination and $27 
million for the refurbishment of the facility.
  Newark Liberty Airport, and Port Newark, and the Ports of 
Philadelphia and Camden are critical vulnerabilities. New Jersey is 
home to rail lines, bridges, and tunnels to New York City, as well as 
chemical plants and nuclear facilities. Atlantic City has the second 
highest concentration of casinos in the country, and between tourists 
and those who work there, is visited by as many as 300,000 people.
  Wall Street and other financial services firms house important front 
and back office operations, including clearance and settlement 
services, and other operations essential to the functioning of 
America's capital markets in Newark, Jersey City, and Hoboken. And, 
last summer, Newark was one of three locations including New York City 
and Washington, DC--that was put on Orange Alert for a possible 
terrorist attack as intelligence suggested that the Prudential building 
in downtown Newark could be a target.
  Yet despite these growing threats to New Jersey from anthrax to the 
Orange Alert, and the ever-expanding costs associated with protecting 
the most densely populated State in the country--remarkably homeland 
security grants to New Jersey were cut in 2005.
  Funding was reduced from $93 million in 2004 to $61 million in 2005. 
Newark will see a 17-percent reduction in funds, from $14.9 million to 
$12.4 million. And, incredibly, Jersey City's homeland security funds 
will drop by 60 percent, from $17 million in 2004 to $6.7 million in 
2005.
  These cuts leave New Jersey home of countless companies and people 
who keep our economic engine moving; home of one of the most active and 
exposed ports in the country; home of one of the busiest airports in 
America; home of our Nation's new Homeland Security Secretary--36th in 
the Nation in per capita homeland security funding.
  I was pleased that the President's budget called for an allocation of 
homeland security funding based on risk and vulnerability. This 
commonsense approach mirrors the recommendations of the 9/11 
Commission.
  Senator Frank Lautenberg and I have introduced legislation that would 
require that homeland security funding be allocated along these lines. 
This bill grants the Department of Homeland Security the authority it 
needs to keep us safe and will allow Michael Chertoff to be an 
outstanding Secretary of Homeland Security.
  Judge Chertoff also understands the critical importance of protecting 
our chemical facilities. Only a week ago, the former Deputy Homeland 
Security Advisor to the President testified to this committee that 
industrial chemicals are ``acutely vulnerable and almost uniquely 
dangerous,'' presenting a ``mass-casualty terrorist potential rivaled 
only by improvised nuclear devices, certain acts of bioterrorism, and 
the collapse of large, occupied buildings.'' He added that chemical 
plant security ``should be the highest critical infrastructure 
protection priority for the Department of Homeland Security in the next 
two years.''
  There are other critical issues that the nominee will face and that I 
am confident he is prepared to take on. Our rail lines are woefully 
unprotected and recent accidents have demonstrated the risk that rail 
transport of toxic chemicals could be attacked by terrorists. There is 
important work remaining at TSA, where airport screening is far from 
complete and where too little attention has been paid to ground 
transportation.
  And the Department of Homeland Security has not yet adequately 
confronted the vulnerabilities of our ports.

[[Page 2251]]

The checklist is long and the issues complex. And in my view, Judge 
Chertoff is the best person to address them.
  One of the critical issues to be addressed by the new Secretary of 
Homeland Security will be civil liberties. I strongly believe that we 
as a nation can be both secure and free. Given Judge Chertoff's work on 
racial profiling in New Jersey, I am confident that he will pursue law 
enforcement strategies that are both effective and unbiased. His stated 
commitment to respecting recent Supreme Court decisions on detainees 
assures me that he will always pursue terrorists within the context of 
our laws and treaty obligations. And his public as well as private 
calls for a new approach to detainees is indicative of a thoughtful and 
open-minded professional.
  While I fully understand the concerns raised by my colleague from 
Michigan, I am disappointed that it delayed this confirmation vote. The 
Congress has an obligation to oversee how this administration is 
treating detainees, in Guantanamo and around the world. Access to FBI 
memoranda on this topic are critical to this oversight. But this 
particular document has nothing to do with Judge Chertoff's 
qualifications for this critical position. Indeed, I have confidence 
that Judge Chertoff--who has called for more open discussion on the 
topic of detention--will work closely with Congress so that we can come 
to a full understanding of what has happened and where we go from here.
  No one knows what the future may bring. The terrorist threat shifts, 
and we are constantly learning about new vulnerabilities. At this 
critical moment, I believe that Judge Chertoff has the kind of 
commitment, intellect, and imagination that we need as someone who is 
focused on keeping us safe, as someone who understands that homeland 
security means identifying the greatest risks and vulnerabilities and 
making them a priority, as someone who recognizes that, in protecting 
ourselves, we cannot sacrifice our basic principles and values. Mr. 
President, I am confident that Michael Chertoff is that person.
  Mr. DURBIN. Mr. President, I rise today in support of the nomination 
of Judge Michael Chertoff to be the new Secretary for the Department of 
Homeland Security.
  Make no mistake, I believe the challenges facing Judge Chertoff at 
the 2-year-old Department are monumental. They include negotiating turf 
battles with other powerful Cabinet Secretaries and ensuring that 22 
formerly disparate Federal agencies, with a combined workforce of 
180,000 employees, work together under one central structure. In 
addition, Judge Chertoff will be responsible for protecting our 
Nation's critical infrastructure and for improving information sharing 
among law enforcement agencies--without intruding unnecessarily on 
individual privacy rights. It is a daunting assignment, but I believe 
Judge Chertoff is up to it.
  When Senator Obama and I met with Judge Chertoff last week, we 
discussed several issues of concern to us, and Judge Chertoff assured 
us that he will address these issues. Among my key concerns are the new 
personnel rules for Department of Homeland Security employees. I 
believe the new rules are far too restrictive when it comes to 
collective bargaining, pay negotiations, and adjudicating grievances. 
The situation at DHS has become even more important since the Bush 
administration announced its intention to give agencies across the 
Federal Government the option of creating similar human resource 
policies. Judge Chertoff said he would sit down with the workers who 
will be affected by the rules to listen to their concerns and 
suggestions. It is important that he do so. As Judge Chertoff told 
Senator Obama and me:

       It's important to have a happy and satisfied workforce. 
     This is not going to work if people in the department feel 
     like they're being wronged.

  Another issue Judge Chertoff promised to look into is the effort to 
integrate the separate fingerprint data bases maintained by the 
Department of Homeland Security and the FBI. Merging these two systems 
into a single, integrated system is not simply a good idea, it is a 
congressional mandate. Yet, a recent report by the Justice Department's 
Inspector General concluded that the efforts to achieve a fully 
integrated biometric fingerprint ID system have stalled. As one who has 
pushed for such a system, I am deeply troubled by that assessment. More 
than three 3 years after 9/11, it is unacceptable that this critical 
improvement to our homeland security still had not been accomplished. 
Judge Chertoff said the American people ``would go ballistic if we 
can't get things to mesh.'' He is right and the American people have 
every right to be angry. This must get done. I take Judge Chertoff at 
his word when he says he will make development of an integrated 
biometric fingerprint ID system a priority.
  Judge Chertoff also promised to look into another possible threat to 
our homeland security, and that is the apparent ease with which an 
ordinary citizen can obtain an airline pilot's uniform. This threat was 
documented recently by a Chicago TV reporter. Astonishingly, the 
reporter found that he could purchase an authentic pilot's uniform 
online--with no identification--and the uniform would be delivered to 
his doorstep in 48 hours. How can this happen in a post-9/11 world? 
Senator Obama and I have asked the Senate Homeland Security and 
Governmental Affairs Committee and the Transportation Security 
Administration to answer that question. We will be looking for answers.
  I look forward to working with Judge Chertoff on several issues of 
particular importance to Illinois. Among them is a Microbial Risk 
Assessment Center, which has been proposed by the University of Chicago 
and would serve as the national clearinghouse to assess risks from 
anthrax, smallpox, plague, and other possible bioterror threats.
  In addition, the city of Chicago has developed a state-of-the-art 
command center where personnel from the city's police, fire, and rescue 
departments and representatives of the city's business community work 
together in one room to monitor the city and, if necessary, respond 
jointly to disasters. I believe this command center could serve as a 
national model, and I encourage Judge Chertoff to examine its structure 
and successes.
  My decision to support Judge Chertoff is the result of serious 
deliberation. While I am impressed by his record and his openness, I 
also have some concerns about the role Judge Chertoff played in 
developing certain administration policies while he served as the head 
of the Justice Department's Criminal Division. In that capacity, Judge 
Chertoff helped to craft high-profile initiatives that explicitly 
targeted Arabs and Muslims and resulted in the detention of thousands 
of people. In the aftermath of the 9/11 terrorist attacks, the Justice 
Department rounded up at least 1,200 immigrants, the vast majority of 
whom were Arab or Muslim. The Justice Department's Inspector General 
found that none of these detainees--not one--was charged with a 
terrorist-related offense, and that the decision to detain them was 
``extremely attenuated'' from the 9/11 investigation. The Inspector 
General also found that detainees were subjected to harsh conditions of 
confinement and that some were subjected to ``a pattern of physical and 
verbal abuse.''
  Judge Chertoff also was tangentially involved in the Justice 
Department's efforts to legalize abusive interrogation tactics. He 
reviewed the infamous Justice Department ``torture memo'' and provided 
advice on complying with the antitorture statute, but he told me that 
he did not provide advice on the legality of any specific interrogation 
methods.
  The Justice Department's ``torture memo'' narrowly and, I believe, 
incorrectly redefined torture as limited only to abuse that causes pain 
equivalent to organ failure or death, and concluded that the 
antitorture statute does not apply to interrogations conducted under 
the President's so-called Commander in Chief authority.
  This tortured effort to justify torture helped to create a permissive 
environment that made it more likely that

[[Page 2252]]

abuses of detainees would take place and made it possible for the 
horrors we have since learned about at Guantanamo Bay, Cuba and the Abu 
Ghraib prison in Iraq. What happened in these places, I believe, has 
damaged our image and called into question our moral authority in some 
places and it has increased--not diminished--the dangers our troops and 
our citizens face in this age of terrorism.
  Unlike many other administration officials, however, Judge Chertoff 
has acknowledged that the Government made mistakes in the aftermath of 
9/11. He told me that he opposes ethnic and religious profiling and he 
is committed to treating all immigrants fairly and to complying with 
all laws regarding the humane treatment of detainees.
  I take him at his word. I will expect Judge Chertoff, as Secretary of 
Homeland Security, to balance America's need for security and our 
respect for civil rights and our heritage as a nation of immigrants. 
There are practical reasons, in addition to the legal reasons, for 
seeking such balance. Detaining large numbers of Arab and Muslim 
immigrants involves a massive investment of law enforcement resources 
with little no return, and it creates fear and resentment of law 
enforcement in exactly the immigrant communities whose cooperation we 
need to defeat terrorism.
  Finally, Judge Chertoff assured me that he will maintain open lines 
of communication with Congress so that Congress can fulfill its 
constitutional requirement to oversee whether, and how well, the 
Department is implementing the laws this body passes.
  For all of these reasons and because of his record of public service 
and his candor during this confirmation process, I will support Judge 
Chertoff's nomination to be America's next Secretary of Homeland 
Security. I look forward to working with him to make America safer in 
ways that are consistent with our national values and heritage, and I 
wish Judge Chertoff the best of luck as he begins his important new 
assignment.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. DOMENICI. Mr. President, this Senator from New Mexico has known 
Mr. Chertoff for a long time. I have been familiar with him 
professionally, primarily when he was legal counsel for a committee on 
which I served. In that capacity, I got to know his professional 
qualities, his intellect, his care in interpreting both the law and 
facts, and I am absolutely positive that he is going to make a superb 
head for this very complicated Department of Homeland Security.
  Mr. Chertoff is a lawyer by trade and a judge by promotion within the 
profession of advocacy. Now, regardless of the profession or 
experiences of the person nominated to this position, there might have 
been some who asked: Why not some other particular area of expertise? 
That could be asked in this case. But I am quite sure that when one 
looks at the myriad of problems addressed by and the kind of intellect, 
commitment, and most of all, integrity that Judge Chertoff has, it is 
clear that he is going to do a superb job on behalf of our country and 
the safety of our homeland.
  My compliments to the President for sending this nomination to the 
committee, headed by Senator Collins, that reported him out quickly, 
and to the Senate for overwhelmingly voting for him today. I salute 
Judge Chertoff and wish him the best. I hope he is able to handle this 
job with the same kind of excellence that he has handled all the other 
jobs we have given him.
  He has plenty of help, which he will need. This is not a job he can 
do alone. It is a very big agency, and I hope everybody who works there 
will be part of his team as he works to make Homeland Security operate 
in a way that is efficient and good for our country and for our people.
  I yield the floor.
  Mrs. CLINTON. Mr. President, when the time comes I intend to vote in 
favor of Judge Chertoff's nomination to be Secretary of Homeland 
Security. There is no position in government of greater importance to 
the security of our country and of my home State of New York. And so I 
am glad that the Senate has agreed to devote some time to a discussion 
of the important issues that the next Secretary of Homeland Security 
will face.
  Let me say at the outset that I have some serious concerns about this 
nomination. These concerns have nothing to do with Judge Chertoff's 
personal abilities: his professional and intellectual qualifications 
are beyond question, as is his commitment to public service. Rather, my 
concerns are based on the misguided and constitutionally infirm 
policies that have been drafted by the Department of Justice and 
implemented by the Administration in its prosecution of the war on 
terror and in the conflicts in Afghanistan and Iraq. Judge Chertoff was 
a senior DOJ official at the time that these policies were created. 
Because he is being nominated to a position for which respect for 
Constitutional and treaty obligations is especially important, his role 
in the formation of these policies is therefore worthy of careful 
scrutiny.
  My primary concern relates to those policies that have undercut and 
placed our men and women in uniform in greater danger and diminished 
our standing in the international community. I feel a particular 
personal obligation as a member of the Armed Services Committee to do 
my utmost to ensure that our government does not do anything that 
unnecessarily puts our troops in harm's way, that diminishes our 
standing among our allies, or that blurs the values that distinguish us 
from our depraved and nihilistic enemies.
  The August 1, 2002 memo from the Department of Justice's Office of 
Legal Counsel, with its absurdly narrow definition of torture, is the 
most shocking and well-known example of the administration's attempt to 
radically weaken this country's commitment to treat all prisoners and 
detainees humanely and in accordance with international agreements. 
Another oft-cited example is Attorney General Gonzales' January 2002 
advice to President Bush that the ``war on terrorism'' offers a ``new 
paradigm [that] renders obsolete'' the Geneva Convention's protections.
  I am satisfied by Judge Chertoff's testimony that, as Assistant 
Attorney General for the Criminal Division, he did not provide legal 
advice that strayed below the standard that is expected from senior 
members of the Justice Department. He testified that executive branch 
officials sought his views on the practical application of laws 
prohibiting torture and on specific techniques. And he testified that 
torture is illegal and wrong and that he does not believe that the 
definition of torture in the August 1, 2002 OLC memo is broad enough. 
He testified that he told executive branch officials to ``be sure that 
you have good faith and you've operated diligently to make sure what 
you are considering doing is well within the law.'' Regarding specific 
techniques, Judge Chertoff testified that, ``I was not prepared to say 
to people, to approve things in advance, or to give people speculative 
opinions that they might later take as some kind of a license to do 
something.''
  These responses suggest that Judge Chertoff appreciates the 
importance of upholding America's long tradition of treating prisoners 
humanely, and of respecting international agreements that protect our 
men and women in uniform as well as our standing in the international 
community. While I would have preferred that Judge Chertoff had argued 
his point to the administration more forcefully, I am satisfied that he 
did not actively promote these wrongheaded, immoral, and 
counterproductive policies.
  Another important concern arises from the Justice Department's 
treatment of more than 750 aliens detained immediately following the 
attacks of September 11. The department's own inspector general 
released a report in 2003 that acknowledged the ``difficult 
circumstances'' in which the department found itself, but concluded 
there were ``significant problems in the way that the September 11 
detainees were treated.'' Among those problems were significant delays 
in the FBI's clearance process, hindrances in access to legal counsel, 
and verbal and physical

[[Page 2253]]

abuse of detainees. The report specifically finds that the Justice 
Department, including Judge Chertoff, was aware of the FBI's clearance 
problems at the time. In fact, Judge Chertoff testified that he 
inquired with the FBI about the clearance delays, but the FBI's 
resources were ``stretched.'' The inspector general found that the 
Justice Department should have done more once it learned of the 
detainee-related problems.
  When asked about this report at his confirmation hearing, Judge 
Chertoff acknowledged that there were ``imperfections'' in the 
executive branch's response. He testified that he was unaware at the 
time of the hindrances in detainees' access to counsel, that he was 
unaware of the verbal and physical abuse, and that such mistreatment is 
inappropriate and should not have happened. He also stated the 
importance of learning from experience.
  I am disappointed that Judge Chertoff did not express greater regret 
for the department's role in the mistreatment of detainees, and that he 
did not testify in detail as to the status of the implementation of the 
inspector general's recommended 21 reforms. Nonetheless, his responses 
to this line of questioning are not, in my view, sufficient to oppose 
his nomination. I hope that Judge Chertoff will bring to bear the 
lessons we have learned from this experience and work to ensure 
appropriate reforms are successfully carried out.
  After careful consideration, I am satisfied by Judge Chertoff's 
answers to the Senate Homeland Security and Governmental Affairs 
Committee regarding his conduct at the Justice Department. Despite the 
egregious missteps the department made during his tenure, I do not 
believe that his performance there disqualifies him from serving as the 
next Secretary of the Department of Homeland Security. And in view of 
his testimony and of his exceptional record during his short time on 
the Federal bench, I believe that Judge Chertoff understands that the 
next Secretary of Homeland Security must be both unflagging in his 
efforts to protect us from terrorist attack and steadfast in his 
respect for our Constitutional order.
  I also believe that Judge Chertoff has a good understanding of the 
issues and challenges facing the Department of Homeland Security. 
Perhaps the biggest challenge awaiting him is the taming of the 
enormous bureaucratic tangle that is the current department. If 
confirmed, Judge Chertoff will become the head of a department that was 
created via the integration of 22 separate agencies and 180,000 
employees. These agencies and employees engage in a wide range of 
activities related to securing the homeland, and they need a steady and 
firm hand on the tiller. They also need a creative leader who can cut 
through bureaucratic entanglement and get things done. As Secretary, 
Judge Chertoff's central task will be setting priorities and getting a 
vast bureaucracy to work efficiently and in a unified fashion.
  I am hopeful Judge Chertoff's well-documented intellectual abilities 
and his long experience as a public servant will serve him well as he 
moves from the role of Federal judge to the head of such a large and 
demanding Department. He pledged at his confirmation hearing to work 
``tirelessly'' to safeguard the nation. I hope he follows through on 
that pledge in a variety of areas of critical importance. He will need 
to devote substantial energy and political capital if he is to help 
this still nascent Department develop to its full potential and render 
all Americans as safe and as secure in their liberties as possible.
  I am encouraged that Judge Chertoff and I agree on a number of 
specific challenges facing the Department of Homeland Security. One of 
these issues--Federal funding formulas for state and local 
preparedness--is essential to protecting the homeland. I have 
repeatedly called upon the administration and my colleagues to 
implement threat-based homeland security funding, so that homeland 
security resources go to the states and areas where they are needed 
most. I have introduced legislation in this regard and even developed a 
specific homeland security formula for administration officials to 
consider.
  The latest iteration of that proposal is contained in my Domestic 
Defense Fund Act of 2005, which I introduced on the first legislative 
day of this Congress. Modeled on the Community Development Block Grant 
program, the Domestic Defense Fund of 2005 provides $7 billion in 
annual funding to local communities, States, and first responders. The 
act requires that all of that funding be allocated using threat, risk, 
and vulnerability-based criteria that homeland security experts--
including the Homeland Security Independent Task Force of the Council 
on Foreign Relations, chaired by former Senators Gary Hart and Warren 
Rudman, and the National Commission on Terrorist Attacks Upon the 
United States--have long recommended.
  I was heartened to hear Judge Chertoff testify at his confirmation 
hearing, that ``I think we have to have a formula for funding and a 
formula for lending assistance to State and local governments across 
the board that takes account of the reality of vulnerabilities and 
risks and making sure that we're making a fair allocation.'' Judge 
Chertoff also stated this view when I met with him. His unequivocal 
support for threat- and vulnerability-based funding is important for 
New York, and for the Nation.
  Another issue on which Judge Chertoff and I agree is the need for 
greater sharing of terrorist-related information between and among 
Federal, State, and local government agencies. In the immediate 
aftermath of the 9/11 terrorist attacks, I worked with a number of my 
colleagues in the Senate on a bi-partisan basis in focusing on this 
need. As I noted in my remarks on the passage of the Intelligence 
Reform and Terrorism Prevention Act of 2004, the sharing of critical 
intelligence information is vitally important if we are to win the War 
against terrorism. We need to ensure that our front line solders in the 
war against terrorism here at home--our local communities and our first 
responders--are as informed as possible about any possible threat so 
that they can do the best job possible to protect all Americans. It is 
vital for New York City and other local communities across New York 
State and the Nation to receive accurate and timely information from 
the department when a potential threat emerges. It is equally important 
that local communities on the front lines serve as valuable sources of 
information for the Federal Government.
  I was pleased to learn that Judge Chertoff testified at his 
confirmation hearing that his personal experiences as an Assistant 
United States Attorney, a United States Attorney and as head of the 
Criminal Division on September 11, give him a thorough appreciation and 
respect for State and local perspectives. In his testimony, he 
described ``negotiating cooperation with our state and local government 
officials'' as one of ``the central elements of the war against 
terrorism. . . .'' He repeatedly referred to the need to work in 
partnership with State and local government.
  I could not agree more. The Federal Government cannot, and should 
not, go it alone when it comes to securing the homeland. States and 
local communities must be full partners. Much more needs to be done, 
but Judge Chertoff's testimony demonstrates that he understands the 
importance of this area as a key to homeland security.
  I also find it encouraging that Judge Chertoff testified that he is 
``acutely aware'' of the importance of allocating resources to secure 
our ports. Needless to say, having a secretary of homeland security who 
understands the importance of the Port of New York and New Jersey is 
likely to be a good thing for New Yorkers, and for the entire country.
  There has been little evidence to date that administration is 
interested in using a threat-based formula for allocating resources. 
Indeed, in Fiscal Year 2004, when the Administration had the 
opportunity to employ such a formula in allocating funds under the 
State Homeland Security Grant Program, SHGP, and the Law Enforcement 
Terrorism Prevention, LETP, grant program, it affirmatively chose not 
to do

[[Page 2254]]

so, despite pleas from me and many members of Congress on both sides of 
the aisle. Again in Fiscal Year 2005, there was no significant effort 
on the part of the administration to use a threat-based formula.
  I wrote President Bush imploring him to work with the House and 
Senate leadership on the issue of homeland security funding, but 
language was inserted in the Fiscal Year 2005 Homeland Security 
Appropriations Act to require that SHGP and LETP funds be allocated in 
that fiscal year as the administration chose to allocate funds in 
Fiscal Year 2004, which, unfortunately, was on the basis of population 
alone. Every homeland security expert I know has said that this makes 
no sense. If the terrorists are looking at things such as the presence 
and vulnerability of critical infrastructures as well as population and 
population densities, so should we.
  This year, the administration is again talking a good game on 
homeland security grant formulas. The Fiscal Year 2006 budget request 
calls for more than $1 billion in grants to States for the purpose of 
enhancing capabilities to prevent, deter, respond to and recover from 
acts of terrorism, to be allocated by the Secretary of Homeland 
Security ``based on risks, threats, vulnerabilities, and unmet 
essential capabilities,'' with a 0.25 percent State minimum. In 
addition, more than $1 billion would go for grants to urban areas, for 
the same purpose, and on the same basis--minus, of course, a State 
minimum.
  This is a step in the right direction, but we need to allocate much 
more funding for this purpose. Whether through direct funding--which I 
continue to believe is the best way to disburse homeland security 
funding to many communities--or funding that is sent to the states and 
passed through to local communities, the Federal Government should be 
disbursing the homeland security state and local funds to communities 
according to a threat- and vulnerability-based formula.
  In addition, my Domestic Defense Fund Act makes it explicit that the 
funding provided for in my proposed legislation will not supplant or be 
in lieu of funding for traditional first responders programs, such as 
the Community Oriented Policing Services, COPS, program and the 
Assistance to Fire Fighters, FIRE, Act program. These Federal programs 
have proven successful in helping first responders perform traditional 
functions, such as fighting crime and responding to fires.
  Unfortunately, the Fiscal Year 2006 budget request seeks to cut or 
eliminate a number of these essential first responder programs. Under 
the President's proposed budget, funding for the COPS program is 
reduced from $379 million to $118 million nationally, which comes on 
top of previous years' cuts for the COPS program, which once received 
more than $1.5 billion in funding. And absolutely no funding is 
proposed for the COPS Universal Hiring Program, the COPS MORE program, 
COPS in Schools program, or the COPS Interoperable Communications 
Technology Program.
  The Fiscal Year 2006 budget request also proposes no funding for the 
Edward Byrne Memorial Justice Assistance Grant program, named after a 
New York City police officer killed in the line of duty, and the Local 
Law Enforcement Block Grant program. These programs in the past have 
provided states and local governments with Federal funds to support 
efforts to reduce crime and increase public safety, such as enhancing 
security measures around schools, establishing or supporting drug 
courts, and preventing violent and/or drug-related crime.
  I find that shameful, especially as our fire fighters, police 
officers, emergency service workers and other first responders continue 
to be on the front lines of our nation's homeland defense. It is 
imperative that Judge Chertoff, if confirmed, stand by his philosophy 
of risk-based allocation and appreciation for the role of state and 
local partners when he prepares his department's budget in coming 
years.
  In fact, the outcome of a number of homeland security imperatives 
will depend to a significant extent on Judge Chertoff's willingness to 
fight hard during the budget process. A good example of this is the 
addition of new border patrol agents mandated in the recently enacted 
Intelligence Reform and Terrorism Prevention Act of 2004. If the goals 
of this legislation are realized, the security of the northern border 
would be improved, a result I have worked for since 2001. Among many 
provisions, the act calls for an increase of at least 10,000 border 
patrol agents from Fiscal Years 2006 through 2010, many of whom will be 
dedicated specifically to our northern border. And yet the FY06 budget 
request did not come close to seeking the 2,000 new border patrol 
agents authorized for this year. Judge Chertoff must be willing to 
fight hard for full funding of this and other programs essential to the 
department's mission.
  I appreciate that Judge Chertoff understands the critical importance 
of securing chemical facilities. There are hundreds of chemical plants 
in the United States where a terrorist attack could threaten more than 
100,000 Americans with exposure to toxic chemicals. This is a homeland 
security vulnerability that has been recognized by many, yet we still 
have no mandatory Federal standards for chemical plants, and the 
Department of Homeland Security lacks authority to put such standards 
in place. Until Congress provides the department with such authority, 
Americans will continue to rely on voluntary security measures at 
chemical plants, which have been repeatedly shown to be lax.
  I believe that the best solution to this problem would be to enact 
the Chemical Security Act that I have sponsored with Senator Corzine. 
However, in order to pass this or other chemical plant security 
legislation, we will need stronger support from the administration and 
from the Secretary of Homeland Security than we have had in the past. 
That is why I was encouraged by Judge Chertoff's testimony that he is 
aware of the significant risk of that sector based on his personal 
experience. He also testified that ``the Federal Government needs to be 
able to use a whole range of tools to bring the industry up to an 
appropriate standard'' and that ``the President has indicated that he 
supports, if necessary, the use of authorities to require chemical 
companies to come up to certain standards, with appropriate penalties 
if they don't do so.''
  Thus, on balance, my personal exchange with Judge Chertoff--and the 
testimony he gave during his confirmation hearing--speak of his 
commitment to threat- and vulnerability-based funding, his keen 
awareness of other vital homeland security issues for New Yorkers, and 
his intent to work tirelessly. He is from New Jersey and knows the 
homeland security needs of the region from personal experience. 
Ultimately, his roots in the region, his personal experiences, and his 
expressions of commitment to policies that are essential to the 
security of New Yorkers, are decisive factors in my decision to vote to 
confirm.
  One of the lessons we have learned since September 11 is that 
constant vigilance is required of the Congress; oversight and 
accountability must be our watch words. Oversight requires us to demand 
that the rule of law be respected by the executive branch, and that we 
do not countenance the flouting of the law or of treaties. It requires 
us to hold the executive branch truly accountable for its actions. If 
we have learned anything since that September day in 2001, particularly 
with respect to this administration, it is the timeless truth that 
``eternal vigilance is the price of liberty.''
  It has been said before, but it bears repeating--our Nation faces a 
new kind of challenge to our way of life. I have no doubt we will 
overcome this challenge, but it will only be overcome through 
maintaining and strengthening our civil society and our commitment to 
being a force for decency and respect for law in the world.
  Judge Chertoff testified that, as Secretary, he will ``be mindful of 
the need to reconcile the imperatives of security with the preservation 
of liberty and privacy.'' I agree that one of the central dilemmas of 
our time is balancing

[[Page 2255]]

security with liberty and privacy. As the 9/11 Commission said, ``Our 
history has shown us that insecurity threatens liberty. Yet, if our 
liberties are curtailed, we lose the values that we are struggling to 
defend.'' I believe that Judge Chertoff is professionally qualified to 
be Secretary of Homeland Security, and that he understands and respects 
the values that the Secretary works to defend. Therefore, I will be 
voting in favor of his confirmation.
  Mr. CORNYN. Mr. President, I thank Judge Michael Chertoff for having 
the courage to take on the challenging tasks of leading the Department 
of Homeland Security. He is an ideal nominee for this position, and I 
look forward to working with him and other department officials to 
ensure that we have the best possible border and port security, cyber 
security, and efficient distribution of DHS resources and personnel.
  There are several issues that we need to address in the short term, 
particularly in the areas of state homeland security grants and cyber 
security.
  For the last 4 years, the Department of Homeland Security has 
provided billions of dollars throughout the country to prevent, prepare 
for, and respond to acts of terrorism. There are several effective 
first responder grant programs that have raised our nation's overall 
level of preparedness and ability to react to all manner of disasters.
  However, many of the funds distributed to states and local 
Governments have been allocated by formulas that fail to take into 
consideration actual needs or are not based on real risks of terrorism. 
It is time that Congress re-examine the methods of distributing these 
critical preparedness funds. In order to adequately secure the nation 
against terrorist attacks, the Federal Government must strategically 
distribute grants to states and local governments in an efficient 
manner and to the places where they will be most effective. Congress 
must take the lead in reforming the system for distributing these funds 
based on actual threats and vulnerabilities and enable Federal agencies 
to target critical gaps in state and local terrorism prevention and 
preparedness capabilities.
  We know that terrorists seek to strike the U.S. where it will do the 
most damage, either in terms of American lives or our country's economy 
and vital assets. Of course, we should make sure that our population 
centers are protected, but that does not mean that funds should only go 
to urban areas. When it comes to protecting our economy and vulnerable 
critical infrastructure, we need to be mindful of protecting all the 
vital components of these systems. Taking the U.S. food supply as an 
example, this would mean securing both up and down stream components, 
from agriculture and food production systems to the ports that ship 
products in and out of the country.
  By targeting terrorism preparedness funds to the communities and 
components of the economy that are most at risk, the whole country 
benefits.
  And looking beyond traditional terrorism preparedness, in this age of 
the Internet and globally interconnected computer systems, securing the 
Nation's borders no longer includes just land, air and sea, but also 
cyberspace. As a result, it is critical that the federal government 
provide strong leadership in cyber security by securing its computer 
systems and adequately safeguarding key components in our national 
infrastructure--including the systems the country relies upon that link 
water, utility, communications, transportation and financial networks.
  I am encouraged that Judge Chertoff, has committed to closely 
examining the agency's role in cyber security to ensure it is doing 
everything possible in this critical mission. Toward that goal, we 
should elevate the issue of cyber security within the agency and create 
the position of Assistant Secretary of Cyber Security.
  We made important strides toward making America safer with the 
recently enacted Intelligence Reform Bill, but we cannot claim to have 
finished the job of improving our intelligence capability and homeland 
security until we deal comprehensively with the need for enhanced cyber 
security. An organized cyber attack would disrupt national security, 
halt the production and distribution of needed goods and services, and 
threaten the very fabric of our Nation's economy.
  Unfortunately, cyber security is an area that tends to be overlooked 
in the discussion of homeland security. First responders to a cyber 
security attack on America have far different needs and functions than 
traditional first responders. They require a clear and visible 
leadership within DHS to organize and maintain our security. Given the 
dynamic and ever-expanding threats in the area of cyber security, an 
Assistant Secretary of Cyber Security will provide DHS with an enhanced 
ability to interact, influence, and coordinate targeted cyber security 
missions across all areas of our infrastructure.
  The effort to secure our nation will not be complete until all 
aspects of vulnerability to terrorists are recognized. This is true for 
all our national borders; on land, air, sea, and cyber space. 
Recognizing that threat is an important step, but we must now make 
every effort to prevent the threat from becoming a crippling reality.
  I am proud to vote for Judge Chertoff. He has well-deserved 
bipartisan support, and I am confident he will be able to do the job. 
As Assistant Attorney General for the Criminal Division of the U.S. 
Department of Justice, he worked tirelessly following the September 
11th attacks, prosecuting those whose specific goal was to kill 
innocent citizens in New York, Virginia and elsewhere in this country. 
I look forward to working alongside him on these critical issues, and I 
am sure he will bring courage and commitment to the serious tasks at 
hand.
  Ms. CANTWELL. Mr. President, the Constitution provides the Senate 
with a responsibility to evaluate Presidential nominations. This is a 
responsibility that I take very seriously because the Senate's role 
ensures strong leadership at the very highest levels of the Federal 
Government.
  Today, the Senate considers the nomination of Judge Michael Chertoff 
to be Secretary of the Department of Homeland Security. Leading the 
Department of Homeland Security is not an easy job, and requires an 
individual with tireless dedication, unending perseverance, and strong 
leadership.
  The Senate Committee on Homeland Security and Governmental Affairs, 
led by Chairman Collins and ranking member Lieberman, conducted a 
thorough examination of Judge Chertoffs record, and I support the 
committee's recommendation to endorse his nomination.
  The Secretary of the Department of Homeland Security is tasked with a 
serious responsibility--leading our country's unified effort to secure 
America and protect the homeland from terrorist attacks. To take this 
job, Judge Chertoff has walked away from a lifetime appointment to 
third circuit, a position for which I supported him. I commend him for 
embracing this new responsibility and answering the call of the 
President and of all American citizens.
  In the wake of the attacks on September 11, our Nation was confronted 
with a challenge to revamp our homeland security posture and adopt a 
strategic plan to defend America from global threat of terrorism. Many 
of our efforts to strengthen homeland security have been successful, 
and were long overdue. But there are critical networks and 
infrastructure that need additional attention to reduce their 
vulnerability to terrorist attacks, such as: our food supply, 
telecommunications and financial networks, rail transportation 
infrastructure, and chemical facilities.
  In Washington State, we have looked to the Department of Homeland 
Security to assist us in preparing our first responders and providing 
them with the financial, training, and information resources they need 
to meet new security requirements. I would urge Judge Chertoff to 
continue to work closely with local first responders from my state who 
are on the front lines of ensuring that Washington's ports, borders, 
and critical infrastructure are secure.
  I am confident that Judge Chertoff will be confirmed today. I am 
eager to

[[Page 2256]]

begin working with him to continue to improve the security of 
Washington State and all of America's homeland.
  Mr. LEAHY. Mr. President, today the Senate will complete the 
consideration of the nomination of Michael Chertoff to head the 
Department of Homeland Security.
  Judge Chertoff currently serves as a Federal judge on the Court of 
Appeals for the Third Circuit. This is a lifetime appointment that he 
has held for a relatively short time and that he will be abandoning to 
return to executive branch service. I helped expedite and voted in 
favor of Judge Chertoff when his nomination to the third circuit came 
to the Senate in 2003.
  Before that he was the Assistant Attorney General in charge of the 
Criminal Division at the Department of Justice. I helped expedite and 
voted in favor of that nomination in 2001.
  I have worked with Mike Chertoff and appreciate his background as a 
prosecutor. He is very capable. He works hard. What one sees when you 
consider his career is that much of the time he acts as a consummate 
professional in our best tradition. Although there have been times when 
he has shown partisanship in an apparent effort to ``earn his spurs'' 
with those on the extreme right, it is my hope and expectation that he 
will bring his better angels with him as he embarks on his new role as 
Secretary of the Office of Homeland Security. That is not a position 
that needs or deserves even a hint of partisanship. Indeed, one of the 
moments that marred Secretary Ridge's tenure was when he stepped out of 
character to make a blatantly partisan pitch during the run-up to the 
recent presidential election.
  I was astonished when President Bush announced that he had chosen 
Bernie Kerik to replace Secretary Ridge. When newspapers and news 
magazines began looking at that nomination, it became apparent that the 
vetting of that nomination was shoddy and that Mr. Kerik was an 
unacceptable choice on a number of grounds. That misadventure cost us 
time and led to Judge Chertoff's nomination being made later than it 
should have been by the administration.
  The Senate has expedited consideration of this nomination. In what I 
hope is a sign of better days to come and of increased responsiveness, 
I note that this nominee has responded in kind by seeking to answer in 
one day's time a letter I sent to him. I appreciate that kind of 
responsiveness.
  In light of his effort, I will excuse his missing the point in 
failing to respond directly to my first question. I raised with the 
nominee an aspect of his conversations with representatives of the 
intelligence community while he was serving as a principal law enforcer 
charged with prosecutions under the anti-torture law. My question to 
Judge Chertoff was an opportunity for him to reflect on the 
inappropriateness of the chief prosecutor advising lawyers for possible 
investigatory targets regarding how he would apply the law and what 
might provide a safe harbor when it came to torture.
  I commend Senator Levin for trying to get to the substance of those 
conversations during confirmation hearings. Sadly but all too 
characteristically, the Bush administration has refused to provide him 
or the Senate with the relevant materials in this regard. I am, 
likewise, concerned that Mr. Chertoff was not more assertive during 
discussions with the Office of Legal Counsel as it headed down the 
wrong road in trying artificially to narrow the definition of torture 
to provide latitude that contributed to widespread international 
scandals in our wrongful treatment of prisoners. I wish someone within 
the Bush administration at the time had stood up for the rule of law 
and had succeeded in derailing the search directed by Judge Gonzales to 
create loopholes in our law.
  I appreciate that Judge Chertoff has committed to implementing the 
recommendations of the inspector general with respect to preserving the 
civil rights of those detained by the Government in his answer to my 
second question. That inquiry derived from his testimony to the 
Judiciary Committee in November 2001.
  Finally, I asked a series of questions about the so-called ``wall'' 
between law enforcement investigations and intelligence. The 9/11 
Commission report went a long way toward dismantling the myth that 
former Attorney General Ashcroft had tried to perpetuate. I recall when 
even President Bush upbraided Attorney General Ashcroft following his 
assault upon Commissioner Gorelick at the 9/11 Commission hearings.
  I pointed out that during the Clinton administration almost one year 
before September 11, 2001, the Department of Justice Office of Legal 
Counsel had issued an official memorandum noting the Government's 
position on ``Sharing Title III Electronic Surveillance Material with 
the Intelligence Community,'' which concluded that law enforcement 
officials may share surveillance information with the intelligence 
community to obtain assistance in preventing, investigating or 
prosecuting a crime, or where the information was of overriding 
importance to national security or foreign relations.
  As Judge Chertoff recalls, it was Attorney General Ashcroft who 
adopted measures on January 21, 2000, and it was the memorandum issued 
by Deputy Attorney General Thompson on August 6, 2001, that governed 
information sharing in the days leading to the disaster that was 
September 11. Indeed, Judge Chertoff notes: ``When it was deemed to be 
appropriate, additional procedures were put in place in specific cases, 
or in sets of related cases.'' He proceeds to concede that without any 
change in the law, in the time between September 11 and enactment of 
the USA PATRIOT Act: ``With court approval, some of these procedures 
were modified between 9/11 and October 26, 2001, the effective date of 
the USA PATRIOT Act.''
  The 9/11 Commission established during its investigation that in the 
days and months before September 11, 2001, information sharing 
requirements and procedures were misunderstood and misapplied at the 
Department of Justice. I appreciated Judge Chertoff's offering a 
glimpse into the inner workings of the Ashcroft Justice Department in 
the days that led up to 9/11 when he noted that there was a ``vigorous 
internal debate about the appropriate procedures for sharing 
information collected in foreign intelligence and counterterrorism 
investigations with criminal agents and prosecutors.'' That ``internal 
debate'' was unresolved on September 11, 2001, when terrorists struck 
in New York and at the Pentagon and were thwarted in the sky over 
Pennsylvania.
  When the Justice Department came forward to work with the Senate in 
the weeks following the attacks, I worked with Mr. Chertoff to ensure 
that law enforcement and intelligence efforts were better coordinated, 
and I urged him, the Attorney General and the Director of the FBI to 
change the culture that had led to destructive and dysfunctional 
hoarding of essential security information.
  I ask unanimous consent that copies of my letter to Judge Chertoff 
and his response be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                      U.S. Senate,


                                   Committee on the Judiciary,

                                 Washington, DC, February 7, 2005.
     Hon. Michael Chertoff,
     United States Court of Appeals for the Third Circuit, Martin 
         Luther King, Jr. Federal Building & U.S. Courthouse, 
         Walnut Street, Newark, NJ.
       Dear Judge Chertoff: Congratulations on your nomination to 
     head the Department of Homeland Security. While I am somewhat 
     surprised to be considering your nomination to an Executive 
     Branch position so soon after your confirmation to the 
     Federal bench, I respect your commitment to public service. 
     The work of the Department of Homeland Security is crucial to 
     the safety and security of the American people, and there are 
     lingering problems in integrating all of the elements of the 
     department and in making them as effective as we need them to 
     be. Managing DHS is one of the toughest assignments in 
     Washington, and I admire and appreciate your willingness to 
     take it. I feel confident that the vetting problems we saw 
     with respect to the Kerik nomination will not plague yours.
       It is regrettable that the Judiciary Committee has not held 
     a hearing and was not

[[Page 2257]]

     even allowed to participate in a hearing on your nomination. 
     Much of the work of the Department of Homeland Security 
     remains of importance and interest to the Judiciary Committee 
     and within its jurisdiction and expertise.
       In connection with our committee's oversight 
     responsibilities as the Senate prepares to debate and vote on 
     your nomination, I would ask you to respond regarding three 
     principal matters.
       First, at your confirmation hearing last week, you 
     acknowledged that while serving as head of the Criminal 
     Division, you consulted with lawyers for the intelligence 
     community regarding specific interrogation techniques. I ask 
     that you reflect upon your conduct in which you were 
     apparently discussing the possible application of the 
     criminal anti-torture statute with representatives of 
     agencies whose personnel might be involved in conduct that 
     you might later be called upon to evaluate for prosecution. 
     In hindsight, should you not have refused to engage in those 
     discussions, or referred the agencies to a non-prosecutorial 
     office of the government such as the Office of Legal Counsel?
       Second, in your testimony before the Senate Judiciary 
     Committee in November 2001, you stated that the Department of 
     Justice, in its investigation into the September 11 attacks, 
     acted in complete accordance with all statutory and 
     constitutional requirements in place before or after the 
     attack. With what has come to light since then about the 
     treatment of detainees, including the Inspector General's 
     highly critical June 2003 report on that topic, what would 
     you now say about government practices in the months 
     following the 9/11 attacks and how they went wrong? Is it not 
     also true, as indicated in the 9/11 Commission report that 
     information sharing legal requirements and procedures were 
     misunderstood and misapplied before September 11, 2001? 
     Before September 11, 2001, what did you do to improve 
     information sharing between the law enforcement and 
     intelligence communities?
       Third, what were the policies and practices of the 
     Department of Justice with respect to information sharing 
     between law enforcement and intelligence functions during the 
     period that you headed the Criminal Division? In particular, 
     what were those policies and practices before September 11, 
     2001, and how if at all did they change between September 11, 
     2001, and October 26, 2001, when the USA PATRIOT Act was 
     signed into law? Is it not true that in 2000 the Department's 
     Office of Legal Counsel issued an official memorandum on 
     ``Sharing Title III Electronic Surveillance Material with the 
     Intelligence Community,'' which concluded that law 
     enforcement officials may share surveillance information with 
     the intelligence community to obtain assistance in 
     preventing, investigating or prosecuting a crime, or where 
     the information was of overriding importance to national 
     security or foreign relations?
       I look forward to your prompt response.
           Sincerely,
                                                    Patrick Leahy,
     Ranking Democratic Member.
                                  ____


  Post-Hearing Questions for the Record Submitted by Senator Patrick 
   Leahy for the Nomination Hearing of Judge Michael Chertoff To Be 
            Secretary of the Department of Homeland Security

       Question: First, at your confirmation hearing last week, 
     you acknowledged that while serving as head of the Criminal 
     Division, you consulted with lawyers for the intelligence 
     community regarding specific interrogation techniques.
       I ask that you reflect upon your conduct in which you were 
     apparently discussing the possible application of the 
     criminal anti-torture statute with representatives of 
     agencies whose personnel might be involved in conduct that 
     you might later be called upon to evaluate for prosecution. 
     In hindsight, should you not have refused to engage in those 
     discussions, or referred the agencies to a non-prosecutorial 
     office of the government such as the Office of Legal Counsel?
       Answer: As I stated at my confirmation hearing, I was asked 
     to provide my views to other attorneys on how the anti-
     torture statute would be applied by a prosecutor. My position 
     in response was not to give advance, speculative advice about 
     what could be done; rather, it was to make sure that the 
     lawyers understood that what is likely to be critical to a 
     prosecutor evaluating a potential charge is the honest, good-
     faith assessment by any interrogators of the effects of what 
     they are doing and how those effects measure against the 
     statute.
       I believe it would have been a dereliction of my duty to 
     refuse to assist the Office of Legal Counsel and lawyers from 
     other government agencies. The Office of Legal Counsel, a 
     component separate and distinct from the Criminal Division, 
     was the primary Department of Justice Component responsible 
     for the guidance on the meaning of the anti-torture statute. 
     I understand that, depending on the legal question under 
     analysis, OLC or lawyers from other government agencies on 
     occasion solicit the views of components of the Department 
     that have expertise in the matter under consideration. I 
     believe it was appropriate for the Criminal Division to offer 
     general guidance on application of the law.
       Question: Second, in your testimony before the Senate 
     Judiciary Committee in November 2001, you stated that the 
     Department of Justice, in its investigation into the 
     September 11 attacks, acted in complete accordance with all 
     statutory and constitutional requirements in place before or 
     after the attack.
       With what has come to light since then about the treatment 
     of detainees, including the Inspector General's highly 
     critical June 2003 report on that topic, what would you now 
     say about government practices in the months following the 9/
     11 attacks and how they went wrong?
       Answer: As explained in the OIG report, I believed that if 
     individuals linked through investigation to the hijackers or 
     terrorism were chargeable with violations of our criminal 
     laws or immigration laws, as enacted by Congress, the 
     government should seek detention in accordance with the 
     applicable law while were investigating to determine if the 
     charged individuals posed an actual threat. In these 
     discussions, I repeatedly emphasized that this policy applied 
     only to those properly chargeable with breaking the law and 
     that detention should be sought consistent with relevant law 
     and regulations.
       My understanding is that those detained in the course of 
     the 9/11 investigation were detained with an individualized 
     predicate, meaning, a criminal charge, an immigration 
     violation, or a judicially-issued material witness warrant. 
     There was a legal basis for each detention. The top priority 
     of the Justice Department was preventing another terrorist 
     attack against the American people, and the lawful detention 
     of individuals who were known to have violated immigration 
     laws--like the September 11 attackers themselves--was a 
     reasonable policy.
       I acknowledge that the policy could have been implemented 
     better and it will be in the future. I believe that the 
     Government faced an unparalleled challenge on September 11: 
     How to prevent devastating terrorist attacks that might arise 
     at any moment from al-Qaeda ``sleepers'' who had been 
     specifically programmed to disguise themselves, blend into 
     ordinary life, and to exploit existing networks for obtaining 
     phony documents and other means of support. That challenge 
     was compounded by the fact that the September 11 attacks 
     physically crippled the FBI and U.S. Attorney's Office in New 
     York (which were the repositories of much of the Department's 
     antiterrorism expertise at the time) and impaired 
     communication between New York and Washington for a period of 
     time. Furthermore, because the 9/11 conspirators operated in 
     cities and towns across the country, the 9/11 investigation 
     necessitated following and analyzing many thousands of leads 
     generated by numerous FBI field offices, some of which had 
     little previous experience in conducting terrorism 
     investigations. Looking for a terrorist under these 
     circumstances was akin to looking for a needle in a 
     nationwide haystack, but with the needle masquerading as a 
     stalk of hay.
       The OIG report identifies concerns that FBI investigative 
     delays or lack of precision in turn led to delays in 
     processing of immigration detainees. In the aftermath of the 
     surprise attack on September 11, the FBI labored under 
     physical and resource constraints in the face of an urgent 
     investigative demand of unprecedented scope. Now, additional 
     resources, training enhancements and reorganizations within 
     the Department and the FBI, as well as the Intelligence 
     Reform Bill--are designed to--and should continue to--
     increase FBI expertise and capability and streamline 
     coordination, so that in any future nationwide terrorism 
     investigation delays and imprecision will be minimized. 
     Furthermore, I believe that the FBI and DHS should and will 
     continue to build upon their experience to develop and firmly 
     establish appropriate protocols for classifying subjects of 
     terrorism investigations at the appropriate level of concern, 
     setting up appropriate deadlines for notification that a 
     particular detainee is or is no longer a terrorism risk; 
     sharing information between law enforcement and immigration 
     agencies; and finalizing a crisis management plan that 
     clearly delineates each agencies procedures and 
     responsibilities in the event of a national emergency. These 
     enhancements would further reduce the potential for impinging 
     on civil liberties.
       Finally, so far as the OIG report identified acts of 
     misconduct by guards at detention facilities these were, of 
     course, wrong, and steps should be taken to assure no such 
     behavior occurs in the future. I believe that DHS and DOJ 
     have implemented some of these proposals and, if confirmed, I 
     will work to further increase their successful 
     implementation.
       Question: Is it not also true, as indicated in the 9/11 
     Commission report that information sharing legal requirements 
     and procedures were misunderstood and misapplied before 
     September 11, 2001? Before September 11, 2001, what did you 
     do to improve information sharing between the law enforcement 
     and intelligence communities?
       Answer: I began at the Criminal Division on approximately 
     June 1, 2001. My activities date from that point.
       Prior to 9/11, the Department--including the Criminal 
     Division under my leadership--

[[Page 2258]]

     was engaged in a vigorous internal debate about the 
     appropriate procedures for sharing information collected in 
     foreign counterintelligence and counterterrorism 
     investigations with criminal agents and prosecutors, and the 
     proper role for prosecutors in such investigations. I 
     understand that the procedures in effect on 9/11 were those 
     that had been adopted by the Attorney General on July 19, 
     1995 (including an annex concerning the Southern District of 
     New York), the interim measures approved by the Attorney 
     General on January 21, 2000, and the memorandum issued by the 
     Deputy Attorney General on August 6, 2001.
       Question: Third, what were the policies and practices of 
     the Department of Justice with respect to information sharing 
     between law enforcement and intelligence functions during the 
     period that you headed the Criminal Division? In particular, 
     what were those policies and practices before September 11, 
     2001, and how if at all did they change between September 11, 
     2001, and October 26, 2001, when the USA PATRIOT Act was 
     signed into law? Is it not true that in 2000 the Department's 
     Office of Legal Counsel issued an official memorandum on 
     ``Sharing Title III Electronic Surveillance Material with the 
     Intelligence Community,'' which concluded that law 
     enforcement officials may share surveillance information with 
     the intelligence community to obtain assistance in 
     preventing, investigating or prosecuting a crime, or where 
     the information was of overriding importance to national 
     security or foreign relations?
       Answer: As discussed above, prior to 9/11, the Department--
     including the Criminal Division under my leadership--was 
     engaged in a vigorous internal debate about the appropriate 
     procedures for sharing information collected in foreign 
     counterintelligence and counterterrorism investigations with 
     criminal agents and prosecutors, and the proper role for 
     prosecutors in such investigations. The procedures in effect 
     on 9/11 were those that had been adopted by the Attorney 
     General on July 19, 1995 (including an annex concerning the 
     Southern District of New York), the interim measures approved 
     by the Attorney General on January 21, 2000, and the 
     memorandum issued by the Deputy Attorney General on August 6, 
     2001. Where it was deemed to be appropriate, additional 
     procedures were put in place in specific cases, or in sets of 
     related cases. With court approval, some of these procedures 
     were modified between 9/11 and October 26, 2001, the 
     effective date of the USA PATRIOT Act. On March 6, 2002, the 
     Attorney General adopted new information sharing procedures 
     that replaced all of the above-referenced procedures. The 
     March 6th procedures, however, did not take full effect until 
     the Foreign Intelligence Court of Review issued a ruling 
     regarding these matters on November 18, 2002.

  Mr. LEAHY. Heading the Department of Homeland Security is a position 
that may be one of the more difficult assignments in Washington and in 
Government. The work of the Department of Homeland Security, DHS, is 
crucial to the safety and security of the American people. There remain 
many problems in integrating the elements of the Department and in 
making them as effective as we need them to be. I remain concerned with 
a number of issues in need of greater attention at DHS and much more 
significant support from the highest levels of the Bush administration. 
Working with Secretary Chertoff, maybe we will be able to get that 
attention and support.
  The Bush administration has failed to provide the necessary 
assistance for first responders throughout our Nation. As the costs 
borne by law enforcement agencies across the country continue to rise, 
we need to increase the partnership help offered to our nation's first 
responders. Instead, in the President's new budget, he has proposed 
cutting overall funding for first responders by $670 million. These 
cuts target vital emergency services affecting every State, regardless 
of size or population. The President also proposed cutting the all-
State minimum for first-responder grants from 0.75 percent to 0.25 
percent. That new formula would result in the loss of funds to police, 
firefighters and emergency rescue squads in dozens of states from coast 
to coast. In Vermont, this would mean a loss of at least $10 million 
dollars in fiscal year 2006--grant funds that are used to provide 
security services along thousands of miles of our border with three 
states. Vermont's border with Canada spans approximately 95 miles, but 
the Swanton Border Patrol is charged with protecting 24,000 square 
miles, which includes not only the entire State of Vermont, but also 
numerous counties in New York and New Hampshire. Within this area, the 
Swanton Border Patrol is required to patrol more than 261 miles of 
International Boundary.
  Our approach to port security is also insufficient. More than 90 
percent of the world's trade is moved in cargo containers. The 
Government Accountability Office has found that the information that 
the Bureau of Customs and Border Patrol uses to determine which cargo 
should be searched is ``one of the least reliable or useful for 
targeting purposes.'' In addition, our government has been slow to 
install radiation detection portals at our ports, leaving us vulnerable 
to the smuggling of a nuclear or radiological weapon.
  Mass Transit Measures Idle. Our mass transit systems are similarly at 
risk. While we spent about $4.5 billion on aviation security last year, 
we devoted only $65 million to rail security, even though five times as 
many people take trains as planes every day. The Madrid bombing vividly 
demonstrated the potential vulnerability of mass transit, and I am 
concerned that the administration is not responding effectively enough 
to this threat. This needs to be a higher priority than the 
administration has made it. The TSA has been slow in developing 
security procedures at port and rail facilities around the country, and 
our transit and freight transportation systems remain at risk. The 
recent DHS budget submission cuts funding for the following essential 
security programs: port security grants, port security incident 
response, intercity bus grants, container threat assessments, nuclear 
detection and monitoring, hazmat truck tracking and training, and rail 
security inspectors.
  Air Security Concerns Linger. Despite the dedicated resources to 
aviation security, problems remain. There have been several 
reorganizations of the TSA's airport screeners program, but reports 
from the GAO and the DHS Office of Inspector General suggest that the 
screening programs for baggage and passengers at our nation's airports 
are not as effective as they should be. We need to ensure that the 
$4,734,784,000 budget request for aviation security this year is spent 
wisely and properly.
  Secretary Chertoff, if he is confirmed, will oversee both the 
enforcement of our immigration laws and the granting of immigration 
benefits. We face a number of important choices on immigration in the 
coming years, and I hope that he will play a constructive role.
  I urge him to support the bipartisan efforts in Congress to improve 
the H-2B visa program, so we can meet the needs of small employers 
around our nation who depend on seasonal immigrant labor to stay in 
business. I hope he will support the bipartisan ``AgJOBS'' bill, which 
provides relief both to the agriculture industry and to the immigrant 
farm workers who make up a majority of the farm workforce in our 
nation. And as the Congress debates fundamental immigration reform, I 
hope that Judge Chertoff will work to help ensure that any reform 
efforts recognize and embrace the tremendous contributions of 
immigrants to our economy and our culture.
  I would like to note the release last week of a report by the U.S. 
Commission on International Religious Freedom, a bipartisan commission 
created by Congress that we asked to study the expedited removal system 
and its effect on asylum seekers. In his response to me last week, 
Judge Chertoff showed a commendable concern for the civil rights of 
those who were detained due to alleged immigration violations during 
the 9/11 investigation. His concern should be even more pronounced 
here, where the Commission found that DHS detains people who seek 
refuge in the United States--and are not even accused of committing any 
criminal or civil violation--under conditions that ``are entirely 
inappropriate for asylum seekers fleeing persecution.''
  If we are to recapture America's rightful place as a haven for the 
oppressed, the tragic situation of asylum seekers must be rectified. 
The Commission offered a number of recommendations that can be 
implemented through administrative action, such as establishing an 
office within DHS to oversee the treatment of refugees and asylum 
seekers and issuing formal regulations governing when asylum seekers 
should

[[Page 2259]]

be released from detention. I urge Judge Chertoff to begin the process 
of making these changes immediately.
  As secretary, Judge Chertoff will also supervise a number of 
outstanding Federal employees who are Vermonters and work for various 
components of the Department, particularly in DHS' immigration 
agencies. I believe he will be pleased with their efforts and their 
expertise.
  Secretary Ridge and I have disagreed strongly about DHS' efforts to 
privatize Immigration Information Officer, IIO, and other positions at 
the agency, and Congress has barred that privatization for the current 
fiscal year. Among other duties, IIOs perform background checks on 
applicants for immigration benefits, a function that should be 
performed by government employees. I urge Secretary Chertoff to 
consider the repeated votes of both the House and Senate to maintain 
these positions as government employees and to make no effort to 
revisit the unwise and unpopular efforts of his predecessor.
  I will support this nomination. Secretary Chertoff will face great 
challenges ahead. I hope that he will work with me and others, on both 
sides of the aisle, in finding the best solutions in meeting them.
  Mr. INOUYE. Mr. President, I rise today in support of the nomination 
of Michael Chertoff to be Secretary of the Department of Homeland 
Security, DHS. Chairman Stevens and I had the opportunity to meet with 
Judge Chertoff, and I was encouraged by his desire to work with 
Congress to address the nation's homeland security needs. I believe 
that his stated goal of resolving the internal disputes that have 
plagued DHS since its founding and his commitment to reduce the 
vulnerability of all our transportation systems to terrorist attack 
will serve him well in this new capacity.
  Though I support Judge Chertoff's nomination, I want to take this 
opportunity to express some of my thoughts and concerns about the 
current state of DHS and the Transportation Security Administration in 
particular.
  In the days following September 11, we all recognized the many 
serious flaws in our homeland security efforts. We were exposed to new 
and unexpected threats in ways we had never before thought possible. We 
committed to do everything in our power to ensure that a tragedy like 
September 11 would never happen again. We took bold, speedy, and 
necessary action. We made transportation security a national security 
function by enacting the Aviation Transportation Security Act and the 
Maritime Transportation Security Act, both considered landmark 
legislation.
  Although a number of high profile actions have been taken to 
strengthen aviation security, I fear that the same zealous effort to 
adequately strengthen security across all modes of transportation has 
stalled. In the more than three years since September 11, very little 
has been done to aggressively promote security of our ports, our 
passenger and freight rail system, motor carriers, pipelines, and 
hazardous materials, despite very specific congressional direction.
  Meanwhile, the threats to our transportation security are as serious 
as they have always been. From the train bombing in Madrid to the 
maritime attack off the coast of Yemen, the threats have not waned in 
the slightest.
  But, based on the President's Budget, there are apparently some in 
the Administration who seem to believe that our work is done. The 
President's Budget recommends shifting critical work away from the 
Transportation Security Administration, TSA, to other organizations 
within DHS that have neither the expertise nor the necessary authority 
to be effective. In my view, further decentralizing the 
responsibilities of TSA will destroy the remaining, limited 
accountability that TSA provides for transportation security.
  I recognize that consolidating 22 Federal agencies into one 
department presents significant management challenges and that growing 
pains are to be expected as different agencies come together. However, 
growing pains are not a license to continue the stovepipe behavior that 
existed prior to September 11. When Congress created the Department of 
Homeland Security and, more specifically, the Transportation Security 
Administration, it made clear that ``business as usual'' was not 
acceptable. The Department and TSA need to reread the underlying 
statutes and start functioning as Congress directed. It is my hope that 
Judge Chertoff will be a leader who understands that necessity.
  Let me speak for a few minutes about the particulars of TSA and the 
President's budget. In truth, the difficult work of securing all of our 
major modes of transportation, including ports, shipping, railroads, 
intercity buses, motor carriers, and pipelines is just beginning, and 
the nation must have a robust agency within the Department dedicated to 
that task.
  Security funding for all modes of transportation beyond aviation has 
been desperately lacking. The 9/11 Commission found, ``over 90 percent 
of the nation's $5.3 billion annual investment in the TSA goes to 
aviation . . . [and] . . . current efforts do not yet reflect a 
forward-looking strategic plan.''
  According to Senate Banking Committee estimates, the Federal 
Government has spent $9.16 per airline passenger each year on enhanced 
security measures, while spending less than a penny annually per person 
on security measures for other modes of transportation.
  Port security and safe maritime transportation is of particular 
interest to me. They are absolutely essential for my state of Hawaii, 
its economic health, and the life and livelihood of its citizens. 
Chairman Stevens' state of Alaska is similarly situated, and I know 
port security is of great importance to him as well.
  Apparently, though, we need to remind the Administration--and perhaps 
the nominee--that 95 percent of the Nation's cargo comes through the 
ports. The security initiatives at most ports have been, to this point, 
woefully underfunded, and most are ill prepared for an attack. 
Unfortunately, our maritime system is only as strong as its weakest 
link. If there is an incident at any one port, the whole system will 
screech to a halt, as we scramble to ensure security at other ports. If 
we had to shut down our entire port system, the economic damage would 
be widespread, catastrophic and possibly irreversible.
  Judge Chertoff has many tools at his disposal to protect our maritime 
and shipping interests, both through the TSA and the U.S. Coast Guard. 
Our national shore line extends for thousands of miles, with key cities 
and facilities located all along the coasts. Whether it is monitoring, 
credentialing, or inspecting cargo, there is no doubt, port security is 
a daunting and difficult task.
  If Judge Chertoff has difficulty understanding the importance of 
improved port security, there are 14 members of our committee with 
major ports in their State, and I am sure each would be more than 
willing to help provide greater clarity.
  Even though we all recognize the overwhelming task of port security, 
the President's Budget does not do enough. It is true that the Coast 
Guard increases 7.5 percent over the previous fiscal year, which seems 
laudable. However, when you look at the numbers, it becomes clear that 
the administration's request--for the third year in a row--does not 
recognize that in addition to the Coast Guard's ever-increasing port 
securities duties, it must still continue critical functions like 
search and rescue efforts and enforcement of coastal and fisheries 
laws. There is no question that we must provide for increased security, 
but there is also no question that other critical missions also impact 
the free flow of maritime commerce.
  In addition to not providing enough funding for Coast Guard 
activities, the President's budget also proposes to develop a Targeted 
Infrastructure Protection Program, TIPP, within the Office of State and 
Local Government Coordination and Preparedness to administer $600 
million in integrated grants for the protection of transit, railroads, 
ports, highways and energy facilities.

[[Page 2260]]

  This odd realignment of the grant process adds layers of bureaucracy, 
further diminishes accountability and distribution of these critical 
funds, and it is directly contrary to the law Congress enacted just 6 
months ago. It also shields the fact that the administration is using 
the same limited pot of money, extending it to a wider range of 
grantees, and making them compete against one another when each of 
their projects merit grant funding.
  The administration also proposes establishing a new Office of 
Screening Coordination and Operations, SCO, within the Border and 
Transportation Security, BTS, Directorate. This new entity would 
purportedly coordinate procedures to identify and interdict people, 
cargo and other entities that pose a threat to homeland security.
  This short-sighted proposal calls for cutting over 70 percent of 
TSA's funding for rail, trucking, pipeline, and hazmat security-related 
initiatives. The ``streamlining of duplicative programs and 
activities'' effectively eliminates TSA's role in allocating 
transportation security grants, maritime research and development 
grants, and cedes its regulatory authority to develop the 
Transportation Worker Identity Credential, TWIC, program. In short, 
this budget ignores congressional direction, transfers these functions 
back to agencies that operate in a stovepipe manner and do not have 
regulatory authority for credentialing, and decimates TSA's Office of 
Maritime and Land.
  Regarding rail security, the administration's budget fails to propose 
any dedicated funding or specific programs to address rail security, 
and given their proposal to eliminate support for Amtrak, it is clear 
that the administration is not interested in rail service let alone 
rail security. The recent rail accident in South Carolina and the 
resulting chlorine gas spill remind us that our rail system presents 
unique vulnerabilities that, if exploited, could cause irreparable 
economic and physical damage to communities across the country.
  TSA has undertaken several small-scale, ad hoc, efforts to strengthen 
rail security, from rail passenger screening pilot tests to rail 
corridor threat assessments in specific corridors. But the 
administration's lack of support for dedicated funding or programs--
beyond what the Congress has forced upon the agency through the 
appropriations process--reflects the low priority that TSA leadership 
and the administration place on this important work. They behave as if 
September 11 never happened.
  The budget proposal for aviation security appears on paper to 
increase by $156 million, but this funding depends on $1.5 billion in 
new revenues raised through increased security fees on airline 
passengers.
  We can debate how much we need for security, but it does not make any 
sense to place the burden for new DHS revenue on an airline industry 
that is bordering on total bankruptcy, when at the same time the 
administration is demanding that its unaffordable tax cuts be made 
permanent.
  The airlines have argued convincingly that they cannot pass along 
increased security fees to the passengers in their highly competitive 
industry. Few of the carriers have managed even modest periods of 
profitability since September 11. I must remind people in this town, 
who often have a short and selective memory, that by a vote of 100 to 0 
in the Senate and 410 to 9 in the House, this Congress chose to make 
transportation security a national security function. Funding homeland 
security is a Federal responsibility.
  Given the many misplaced priorities that I see in the President's 
Budget proposal, it is clear that the Congress needs to help refocus 
the Department.
  Let me state here before my colleagues and for the record, the Senate 
Commerce Committee will not stall in its efforts to continue developing 
comprehensive, bipartisan legislation to strengthen port, rail, and 
intercity bus security, regardless of the Bush administration's 
repeated refusal to support or properly address these critical 
initiatives. Our national transportation system remains an inviting 
target for terrorists. The system is vulnerable, and an attack could 
cause widespread, catastrophic economic damage. In fact, in his most 
recent video tape, Osama bin Laden stated plainly that bankrupting the 
United States was a primary, al-Qaida goal, and given al-Qaida's 
previous attacks, it is clear that transportation systems are high on 
their target list.
  So I come to the floor today to inform my colleagues and the 
administration that, I, along with many of my fellow Commerce Committee 
members, will be introducing a transportation security reauthorization 
proposal, which will provide further direction to the Department's 
cargo security functions, strengthen aviation, maritime, rail, 
hazardous materials, and pipeline security efforts, and improve 
interagency cooperation.
  The proposal will incorporate several Commerce Committee-reported and 
Senate-passed bills from the prior Congress and will also put forth new 
ideas to enhance transportation security across all modes of 
transportation.
  For port security, we will seek to improve interagency cooperation by 
further developing joint operation command centers. Additionally, our 
bill will clarify the roles and responsibilities for cargo security 
programs, while establishing criteria for contingency response plans. 
Our legislation will further encourage the development of effective 
technologies that detect terrorist threats by setting a minimum level 
of R&D funding related to maritime and land security.
  To address aviation, we will take several steps to strengthen the 
existing, professional, screening workforce through improved training 
of personnel and by directing a more appropriate use of TSA's 
resources. Additionally, we will seek to streamline and improve 
collection of airline and passenger security fees to promote a more 
efficient and healthy aviation industry.
  For rail security, we will incorporate an updated version of the Rail 
Security Act of 2004, which the Senate passed by unanimous consent last 
year, and we will feature new efforts to ensure the security of 
hazardous materials that are shipped by rail.
  To address the security needs of our other surface transportation 
modes, the proposal will include funding to improve intercity bus 
security, strengthened hazardous material transportation security 
efforts, new security guidelines for truck rental and leasing 
operations, and the development of pipeline security incident recovery 
plans.
  I look forward to working with Judge Chertoff, the TSA, and the 
administration on this effort, and I remain hopeful that his new 
leadership at DHS will inspire the requisite commitment and dedication 
necessary to meet the security challenges ahead. The work will not be 
easy. While most of us recognize the improvements that have been made 
in airline security over the last few years, others are pushing to roll 
back the progress that we have made.
  Despite that progress, there are some that continue to urge TSA to 
return to the days of private security screening companies, like 
Argenbright Security and its underpaid, poorly trained workforce. These 
efforts are not just shortsighted, they disregard a national imperative 
to treat transportation security as a national security function, and 
they should be quickly dismissed by the administration. I call on Judge 
Chertoff to clarify DHS's position on this matter quickly, so the 
country can continue to have faith in the security efforts we have come 
to expect when flying.
  Similarly, TSA needs more resources and attention paid to port, rail, 
motor carrier, hazardous materials, and pipeline security matters, not 
less, and I am hopeful that Judge Chertoff will make strengthening all 
areas of transportation security one of his top missions.
  We must take this opportunity to continue moving in the right 
direction and avoid taking steps backward. I support the nomination of 
Michael Chertoff as Secretary of Homeland Security and look forward to 
working with him to ensure that the American people can depend on a 
national transportation system that is as safe and secure as possible.

[[Page 2261]]

  The PRESIDING OFFICER. The Senator from Maine is recognized.
  Ms. COLLINS. Mr. President, earlier today, the senior Senator from 
Massachusetts spoke on this nomination. I have enormous respect and 
affection for my colleague from New England, but on this occasion I 
believe his comments were well off the mark. Here are some of the words 
my colleague spoke:

       Our problems with the administration on this nomination 
     pale in comparison with the failure of the Senate Republican 
     majority to carry out its own constitutional responsibilities 
     on this nomination. Instead of insisting on adequate answers 
     to questions raised by the documents, they have acquiesced in 
     the Government's coverup and abdicated their own independent 
     constitutional responsibility to provide advice and consent.

  I sincerely believe that were I fortunate enough to have the senior 
Senator from Massachusetts serve on the committee the Presiding Officer 
and I serve on, he would never have said those words or reached such a 
harsh judgment.
  He went on in his statement to call these proceedings ``a blatantly 
defective consent.'' Again, I so wish that the senior Senator from 
Massachusetts had had the opportunity to participate in our committee's 
process. He would have found that our committee has the most thorough 
process for considering nominations of any committee in the entire 
Senate. I believe our committee is the only one, for example, that has 
the staff on both sides of the aisle interview the nominee. We posed to 
Judge Chertoff 250 written questions, both before the hearing and after 
the hearing. We had a lengthy hearing in which members on both sides of 
the aisle were free to ask the toughest questions possible to the 
nominee.
  There was no limit on the questions that could be submitted for the 
record, and the nominee sat for hours patiently, fully, and candidly 
answering the questions posed to him by the members of the committee. 
So I believe that the judgment of the Senator from Massachusetts does 
not reflect the process we undertook for this nominee. I truly wish he 
could have seen the process because I think he would have reached a 
different conclusion. And I say that with a great deal of personal 
affection for my friend from Massachusetts.
  The fact is, first, that Judge Chertoff has undergone intense 
scrutiny by the Homeland Security and Governmental Affairs Committee. I 
cannot imagine how anyone could conclude, given the number and the 
scope of questions posed to the judge, that this was somehow 
``defective consent.''
  Second, on the issue of the e-mails and the nominee's knowledge of 
questionable interrogation techniques used by certain DOD personnel at 
Guantanamo, Judge Chertoff's testimony could not have been clearer. He 
told the committee under oath that he was ``not aware'' of any 
practices at Guantanamo that ``even approach[ed] torture.'' He said he 
had ``no knowledge'' of any interrogation techniques other than those 
that he described as ``plain vanilla.'' These are straightforward, 
plain words--``I was not aware''; ``I had no knowledge.'' They are not 
susceptible to multiple interpretations. They are not ambiguous. They 
do not suggest the need to refresh the nominee's recollection. They do 
not invite speculation as to what the nominee meant. And there is only 
one reason why some of our colleagues would feel the need to ask other 
people about what they said to Judge Chertoff, and that is, if we did 
not believe him.
  This is a distinguished public servant, a sitting Federal judge who 
is testifying before our committee under oath. There is no reason to 
doubt his testimony. His testimony was clear, it was forthright, it was 
candid. It is demeaning to suggest that somehow we need to probe this 
further because we do not believe this distinguished public official.
  I asked this question yesterday, but I am going to repeat it again: 
Since when have we become so cynical about good people who are willing 
to step forward, sacrifice, and serve our country? How could our 
colleagues from Michigan and Massachusetts come to this floor, praise 
Judge Chertoff, pledge to vote to confirm him, and then condemn the 
nomination process when we have concluded that the judge gave us 
truthful, straightforward answers, and we have no reason to doubt the 
answers he gave us? He was not evasive. He was straightforward. It does 
not make sense to criticize the process because the committee refuses 
to engage in an exercise that, at its core, is built upon the premise 
that Judge Chertoff is somehow being less than truthful with the 
committee. I reject that premise. There is no basis for it.
  Let me close these remarks by saying a word about the Senate's 
constitutional role of advise and consent because I think a lot that 
has been said about this role misses an essential point.
  We, the Senate, advise and consent. It is the President who appoints. 
We do not appoint. Sometimes I think some of my colleagues believe the 
Senate should do all of the appointing for the President, but that is 
not how the system works. That is not how our Constitution works. 
Indeed, as Professor Laurence Tribe has noted--and he is a liberal law 
scholar, not a conservative one--the appointments clause ``seeks to 
preserve an executive check upon legislative authority in the interest 
of avoiding an undue concentration of power in Congress''--in 
Congress--``in executing our responsibilities.''
  We should do well to remember that it is the President who is 
appointing these positions. It is our job to advise and consent. We 
have performed that job well in this case. We subjected this nominee to 
extraordinary scrutiny, despite the fact that he has already been 
confirmed by this body three previous times. Nevertheless, as is 
appropriate, we went through a full confirmation process with a review 
of his biographical questionnaire, his finances, with a full FBI check, 
with an extensive public hearing that stretched several hours, and with 
250 written questions, primarily from Democratic members, submitted to 
him for response. What more can we ask? What more can we ask of a 
nominee who is simply stepping forward to answer the call to serve his 
country? And what more can we ask of a Senate committee in carrying out 
this solemn duty with which we are vested?
  As much as I have respect and affection for my colleague, the senior 
Senator from Massachusetts, I cannot let his comments pass. That is why 
I felt compelled to explain to all of my colleagues what the process 
was and that the Senator's description simply does not reflect what was 
done. I am certain--absolutely certain--that had he been a member of 
the committee, had he joined with us in the nomination hearing, he 
would have reached an entirely different conclusion about the integrity 
and thoroughness of the process.
  I thank the Chair.
  Mr. President, I do anticipate that further of my colleagues will be 
coming to the floor. I will yield to them when that happens.
  (The remarks of Ms. Collins pertaining to the introduction of S. 380 
are printed in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  Ms. COLLINS. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, how much time is left on this side?
  The PRESIDING OFFICER. The Senator has 22 minutes 30 seconds.
  Mr. REID. Mr. President, I, first, want to express my appreciation to 
someone I believe a star of the Senate and that is Carl Levin. Carl 
Levin is such a good example to every Senator. When you work on 
something with Carl Levin, you can rest assured that he has read every 
word of it. He is someone who I am sure, before he came to the Senate, 
was an outstanding lawyer. I am so impressed with his ability to do 
legal analysis, and I am so impressed with his understanding of 
government generally.

[[Page 2262]]

  What we have here is something that is very typical for Senator 
Levin. The nomination of Michael Chertoff to be Secretary of Homeland 
Security is very important. This new Cabinet level office that has been 
created is so important. I think it has become one of the most 
important posts that the President has. We know how important the 
Secretary of Defense is, we know how important the Secretary of State 
is, but this is so important.
  Judge Chertoff will be called upon to manage some 180,000 employees, 
22 different agencies, all important to protect this Nation in one way 
or the other. He will be called upon to bolster the efforts of our 
State and local law enforcement officers, firefighters, emergency 
response personnel, and in the process of managing these 180,000 
employees, he doesn't have enough people. Many of these 22 different 
agencies he is responsible to manage are understaffed. So he will have 
a tremendous burden.
  The people who work in these agencies are public servants first in 
any designation you want to make. They are the frontline protection for 
communities across the Nation.
  Over the course of the last year, I have held in Nevada what I call 
Frontline Focus roundtables. I am meeting with firefighters, sheriffs, 
and emergency response personnel. It has been tremendously enlightening 
to me to talk to them about the problems that we have, from the 
communication and resource challenges facing urban centers such as Las 
Vegas and Reno, but also rural communities all over the State of 
Nevada. They have special needs, special demands.
  Of course, I mentioned already Las Vegas with its booming tourist 
industry. About 20 people an hour are moving into Las Vegas. It is 
growing and the growth has not stopped. So Nevada's homeland security 
needs run the gamut. Our State and local officials will need the 
support and help of Judge Chertoff and the Department of Homeland 
Security in the work they do. His job is a tough and challenging job, 
and that is an understatement.
  I have confidence in Judge Chertoff. I am confident he will meet 
these challenges. It was less than 2 years ago that we approved him by 
an overwhelming vote of 88 to 1 to a lifetime appointment on the Court 
of Appeals of the Third Circuit. But he was willing to give up this 
lifetime appointment for a job that will last probably 4 years.
  Since his confirmation, the administration has been mired in 
controversy over its handling of prisoners and detainees. The 
administration policies have come under great scrutiny and we need to 
learn, during the course of this confirmation hearing, and we tried to 
do that, what role he may have played in crafting these policies.
  Judge Chertoff has testified before the Homeland Security and 
Governmental Affairs Committee that he was not directly involved in the 
administration's decision to gut the Geneva Conventions and set out on 
a new and dangerous path with regard to interrogations. We have to take 
Judge Chertoff at his word, because the document proof has either been 
denied to Senators or otherwise has been so heavily redacted that it 
raises questions about the role of the Criminal Division overseen by 
Judge Chertoff.
  The debate over his nomination, as my colleague, Senator Levin, has 
brought to the attention of the American people, as he discussed this 
yesterday on the floor, is a debate over the right of the Senate and 
the American people to have information about the way our Government 
does business.
  The information sought in the context of his nomination by Senator 
Levin would help us understand how the administration arrived at those 
policy decisions and would help prevent similar mistakes in the future.
  No one would disagree--I shouldn't say that. Very few people would 
disagree that the policies undertaken in Guantanamo Bay, Afghanistan, 
and Iraq dealing with interrogation which led to these brutal acts, the 
acts of torture, were wrong. These policies were used to justify forced 
nakedness. Keep in mind we live in a different environment than the 
people of Iraq. The shaving of the beards was demeaning to these men, 
but it was done many times. They were placed in stressed positions. 
They were intimidated with dogs, and on and on. We learned of these 
torture policies and their impact not from this administration, as is 
our right, but through leaks and lawsuits. Leaks and lawsuits, 
unfortunately, is the way we have to learn much of what is going on 
today.
  The shocking abuses--and there is no other way you can describe it--
at Abu Ghraib were revealed when the photographs were released to the 
news media. I can remember going upstairs to S. 407 with other Senators 
and looking at the brutality and the pornographic nature of those 
pictures. Even for someone who has seen other acts of torture and 
terror in the work that we do, it was overwhelming. I had no idea that 
is what I would see that day. I waited not too long before I left. I 
saw enough in about 15 minutes, but I saw a lot.
  Major General Taguba's report investigating the abuse at Abu Ghraib 
was discovered after it, too, was leaked to the press. Judge Gonzales's 
January 25th, 2002, memo advising the President that the Geneva 
Conventions were ``quaint and obsolete'' was not known until it was 
leaked to the press 2 years later. The Senate only learned of the 
August 1, 2002, Bybee torture memo when it was leaked to the press in 
June of that year.
  I ask my colleagues, if this information had not come to light, would 
the administration disavow these practices? I regret that in the 
context of this nomination the administration will again deny the 
Senate and the American people a full understanding of how we embarked 
on a policy which has imperiled our soldiers and our Nation.
  In Judge Chertoff's case, we know during his tenure that torture 
policies authorized by Justice and given effect by the Department of 
Defense were hotly debated by DOD, Justice Department, and FBI 
officials. We know this only because a private group filed a freedom of 
information request for such information. The request produced a series 
of redacted FBI emails that gave voice to the dissenters this 
administration has tried to muzzle. The redactions prevent us from 
fully understanding that debate and how Criminal Division lawyers under 
Judge Chertoff's supervision dealt with the FBI concerns that the 
torture policies were not only immoral but ineffectual. It prevents us 
from truly understanding Judge Chertoff's role and whether attorneys 
under his supervision raised the issue with him directly. He said he 
does not remember. I accept the judge's statement in that regard. But 
that does not take away from the necessity of being able to have this 
information.
  In response to Senator Levin's request for an unredacted version of 
the FBI emails, the administration issued its broadest assault against 
the Senate's duty to evaluate a nominee to get oversight of this 
administration. The administration claimed it would not turn over the 
unredacted emails because to do so would violate the Privacy Act, even 
though, through Senate security, any classified information would be 
protected. The Privacy Act is designed to prevent the Government from 
disclosing personal information about private individuals who have not 
consented to disclosure. It is not a tool to conceal identities of 
public officials engaged in this Nation's business.
  As my colleague from Michigan, Senator Levin, has so forcefully 
stated, the administration's penchant for secrecy threatens each and 
every Senator's ability to do the people's business and undermines our 
role in providing advice and consent to the President's nominees and 
undermines our role in conducting oversight into this administration. 
In the end, what is most troubling is that the administration's culture 
of secrecy may breed further abuses, abuses we know of today, not 
because of but in spite of the administration's effort.
  We must overcome these roadblocks put up by the administration 
because the job of protecting the homeland is too important. Judge 
Chertoff will have enormous challenges if he assumes his new position, 
which I am

[[Page 2263]]

confident he will. Border security, immigration, port security, airport 
screening, protecting America's critical infrastructure, and so much 
more will now fall under his purview. He has pledged to work with the 
Congress in crafting the Department's policies. As much as possible, 
this must be a nonpartisan exercise. Working together, we can and we 
must put our country in the strongest possible position to defend 
itself for the many threats we face.
  In short, what I am criticizing and complaining about, we have some 
emails from the FBI to the Justice Department, saying, in effect, how 
we conduct our interrogations is appropriate. What the Department of 
Defense is doing with their brutality and their torture is wrong. I am 
convinced that is true; the FBI was right. I hope somehow we will be 
able to get the names of these individuals and pursue it more carefully 
and also find out what the real words were; I am confident it was 
torture. One thing we know clearly from these memos is that the FBI 
says using our methods, the normal methods of interrogation, we are 
getting more information from the enemy than you are while using your 
acts of violence.
  I close by saying, again, I want this record spread with the fact 
that Senator Levin has done a good thing for this country. He has done 
good work again in allowing us to look at an issue that should be a 
simple issue that has been made complicated by this administration by 
virtue of their hiding what it should not.
  Ms. COLLINS. Mr. President, I ask unanimous consent the quorum call I 
am about to invoke be charged equally to both sides.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. COLLINS. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. FRIST. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Burr). Without objection, it is so 
ordered.
  Mr. FRIST. Mr. President, in a few moments we will be voting on the 
nomination of Judge Michael Chertoff to lead the Department of Homeland 
Security. I applaud President Bush for his outstanding choice, and I am 
confident that Judge Chertoff will receive overwhelming support from 
both sides of the aisle, making this his fourth confirmation by this 
body, the Senate.
  Judge Chertoff has a long and distinguished career in public service 
and law enforcement.
  The Harvard Law magna cum laude first made his name in the mid-1980s 
putting away five of the biggest Mafia bosses in New York.
  His success brought him the job of U.S. attorney in New Jersey where 
he oversaw high-profile and politically sensitive prosecutions.
  In 2001, Judge Chertoff was chosen by President Bush to lead the 
Justice Department's Criminal Division. It was there that Judge 
Chertoff would show his full mettle. For the 20 hours following the 
attacks on 9/11, Judge Chertoff was central in directing our response.
  His team in the Criminal Division traced the 9/11 killers back to al-
Qaida. And for the next 2 years, Judge Chertoff helped craft our 
antiterrorism policy.
  His experience working directly with law enforcement, his expertise 
in homeland and national security, and his proven ability to lead in 
times of national crisis make him overwhelmingly qualified to direct 
our homeland security.
  Judge Chertoff has said he will be proud to stand again with the men 
and women who form our front line against terror. I know I speak for 
many when I say we are proud to have a man of his caliber and talent 
serving and protecting the American people.
  Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is, Will the Senate advise and consent to the nomination 
of Michael Chertoff, of New Jersey, to be Secretary of Homeland 
Security? On this question, the yeas and nays have been ordered, and 
the clerk will call the roll.
  The bill clerk called the roll.
  Mr. McCONNELL. The following Senator was necessarily absent: the 
Senator from Pennsylvania (Mr. Specter).
  Mr. DURBIN. I announce that the Senator from Montana (Mr. Baucus), is 
necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 98, nays 0, as follows:

                       [Rollcall Vote No. 10 Ex.]

                                YEAS--98

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

                             NOT VOTING--2

     Baucus
     Specter
       
  The nomination was confirmed.
  The PRESIDING OFFICER. The President will be immediately notified of 
the Senate's action.

                          ____________________