[Congressional Record (Bound Edition), Volume 153 (2007), Part 4]
[Senate]
[Pages 5664-5670]
[From the U.S. Government Publishing Office, www.gpo.gov]




                IMPROVING AMERICA'S SECURITY ACT OF 2007

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume consideration of S. 4, which the clerk will report.
  The legislative clerk read as follows:

       A bill (S. 4) to make the United States more secure by 
     implementing unfinished recommendations of the 9/11 
     Commission to fight the war on terror more effectively, to 
     improve homeland security, and for other purposes.

  Pending:

       Reid amendment No. 275, in the nature of a substitute.
       Sununu amendment No. 291 (to amendment No. 275), to ensure 
     that the emergency communications and interoperability 
     communications grant program does not exclude Internet 
     Protocol-based interoperable solutions.
       Salazar/Lieberman modified amendment No. 290 (to amendment 
     No. 275), to require a quadrennial homeland security review.
       Lieberman amendment No. 315 (to amendment No. 275), to 
     provide appeal rights and employee engagement mechanisms for 
     passenger and property screeners.
       McCaskill amendment No. 316 (to amendment No. 315), to 
     provide appeal rights and employee engagement mechanisms for 
     passenger and property screeners.
       Dorgan/Conrad amendment No. 313 (to amendment No. 275), to 
     require a report to Congress on the hunt for Osama bin Laden, 
     Ayman al-Zawahiri, and the leadership of al-Qaida.
       Landrieu amendment No. 321 (to amendment No. 275), to 
     require the Secretary of Homeland Security to include levees 
     in the list of critical infrastructure sectors.
       Landrieu amendment No. 296 (to amendment No. 275), to 
     permit the cancellation of certain loans under the Robert T. 
     Stafford Disaster Relief and Emergency Assistance Act.
       Landrieu amendment No. 295 (to amendment No. 275), to 
     provide adequate funding for local governments harmed by 
     Hurricane Katrina of 2005 or Hurricane Rita of 2005.
       Allard amendment No. 272 (to amendment No. 275), to prevent 
     the fraudulent use of Social Security account numbers by 
     allowing

[[Page 5665]]

     the sharing of Social Security data among agencies of the 
     United States for identity theft prevention and immigration 
     enforcement purposes.
       McConnell (for Sessions) amendment No. 305 (to amendment 
     No. 275), to clarify the voluntary inherent authority of 
     States to assist in the enforcement of the immigration laws 
     of the United States and to require the Secretary of Homeland 
     Security to provide information related to aliens found to 
     have violated certain immigration laws to the National Crime 
     Information Center.
       McConnell (for Cornyn) amendment No. 310 (to amendment No. 
     275), to strengthen the Federal Government's ability to 
     detain dangerous criminal aliens, including murderers, 
     rapists, and child molesters, until they can be removed from 
     the United States.
       McConnell (for Cornyn) amendment No. 311 (to amendment No. 
     275), to provide for immigration injunction reform.
       McConnell (for Cornyn) amendment No. 312 (to amendment No. 
     275), to prohibit the recruitment of persons to participate 
     in terrorism.
       McConnell (for Kyl) modified amendment No. 317 (to 
     amendment No. 275), to prohibit the rewarding of suicide 
     bombings and allow adequate punishments for terrorist 
     murders, kidnappings, and sexual assaults.
       McConnell (for Kyl) amendment No. 318 (to amendment No. 
     275), to protect classified information.
       McConnell (for Kyl) amendment No. 319 (to amendment No. 
     275), to provide for relief from (a)(3)(B) immigration bars 
     from the Hmong and other groups who do not pose a threat to 
     the United States, to designate the Taliban as a terrorist 
     organization for immigration purposes.
       McConnell (for Kyl) amendment No. 320 (to amendment No. 
     275), to improve the Classified Information Procedures Act.
       McConnell (for Grassley) amendment No. 300 (to amendment 
     No. 275), to clarify the revocation of an alien's visa or 
     other documentation is not subject to judicial review.
       McConnell (for Grassley) amendment No. 309 (to amendment 
     No. 275), to improve the prohibitions on money laundering.
       Thune amendment No. 308 (to amendment No. 275), to expand 
     and improve the Proliferation Security Initiative while 
     protecting the national security interests of the United 
     States.
       Cardin amendment No. 326 (to amendment No. 275), to provide 
     for a study of modification of area of jurisdiction of Office 
     of National Capital Region Coordination.
       Cardin amendment No. 327 (to amendment No. 275), to reform 
     mutual aid agreements for the National Capital Region.
       Cardin modified amendment No. 328 (to amendment No. 275), 
     to require Amtrak contracts and leases involving the State of 
     Maryland to be governed by the laws of the District of 
     Columbia.
       Schumer/Clinton amendment No. 336 (to amendment No. 275), 
     to prohibit the use of the peer review process in determining 
     the allocation of funds among metropolitan areas applying for 
     grants under the Urban Area Security Initiative.
       Schumer/Clinton amendment No. 337 (to amendment No. 275), 
     to provide for the use of funds in any grant under the 
     Homeland Security Grant Program for personnel costs.
       Collins amendment No. 342 (to amendment No. 275), to 
     provide certain employment rights and an employee engagement 
     mechanism for passenger and property screeners.
       Coburn amendment No. 325 (to amendment No. 275), to ensure 
     the fiscal integrity of grants awarded by the Department of 
     Homeland Security.
       Sessions amendment No. 347 (to amendment No. 275), to 
     express the sense of the Congress regarding the funding of 
     Senate-approved construction of fencing and vehicle barriers 
     along the southwest border of the United States.
       Coburn amendment No. 345 (to amendment No. 275), to 
     authorize funding for the Emergency Communications and 
     Interoperability Grants program, to require the Secretary to 
     examine the possibility of allowing commercial entities to 
     develop public safety communications networks.
       Coburn amendment No. 301 (to amendment No. 275), to 
     prohibit grant recipients under grant programs administered 
     by the Department from expending funds until the Secretary 
     has reported to Congress that risk assessments of all 
     programs and activities have been performed and completed, 
     improper payments have been estimated, and corrective action 
     plans have been developed and reported as required under the 
     Improper Payments Act of 2002 (31 U.S.C. 3321 note).
       Coburn amendment No. 294 (to amendment No. 275), to provide 
     that the provisions of the Act shall cease to have any force 
     or effect on and after December 31, 2012, to ensure 
     congressional review and oversight of the Act.
       Lieberman (for Menendez) amendment No. 354 (to amendment 
     No. 275), to improve the security of cargo containers 
     destined for the United States.
       Specter amendment No. 286 (to amendment No. 275), to 
     restore habeas corpus for those detained by the United 
     States.
       Kyl modified amendment No. 357 (to amendment No. 275), to 
     amend the data-mining technology reporting requirement to 
     avoid revealing existing patents, trade secrets, and 
     confidential business processes, and to adopt a narrower 
     definition of data mining in order to exclude routine 
     computer searches.
       Ensign amendment No. 363 (to amendment No. 275), to 
     establish a Law Enforcement Assistance Force in the 
     Department of Homeland Security to facilitate the 
     contributions of retired law enforcement officers during 
     major disasters.

  The ACTING PRESIDENT pro tempore. Under the previous order, the time 
until 10 a.m. shall be equally divided and controlled by the Senator 
from Missouri, Mrs. McCaskill, and the Senator from Maine, Ms. Collins, 
or their designees.
  The majority leader is recognized.


Amendment No. 316, as Modified, to Amendment No. 275; and Amendment No. 
                             315 Withdrawn

  Mr. REID. Mr. President, I now ask unanimous consent that the 
McCaskill amendment No. 316 be modified to be a first-degree amendment 
and that the Lieberman amendment No. 315 be withdrawn.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Mr. REID. Mr. President, I withhold for 1 second.
  The ACTING PRESIDENT pro tempore. The majority leader is recognized.
  Mr. REID. Mr. President, I renew my unanimous consent request.
  The ACTING PRESIDENT pro tempore. Is there objection?
  The Chair hears none, and it is so ordered.
  The amendment (No. 316), as modified, is as follows:

       On page 219, after line 7, insert the following:

     SEC. __. APPEAL RIGHTS AND EMPLOYEE ENGAGEMENT MECHANISM FOR 
                   PASSENGER AND PROPERTY SCREENERS.

       (a) Appeal Rights for Screeners.--
       (1) In general.--Section 111(d) of the Aviation and 
     Transportation Security Act (49 U.S.C. 44935 note) is 
     amended--
       (A) by striking ``Notwithstanding'' and inserting the 
     following:
       ``(1) In general.--Except as provided in paragraphs (2) and 
     (3) notwithstanding''; and
       (B) by adding at the end the following:
       ``(2) Right to appeal adverse action.--The provisions of 
     chapters 75 and 77 of title 5, United States Code, shall 
     apply to an individual employed or appointed to carry out the 
     screening functions of the Administrator under section 44901 
     of title 49, United States Code.
       ``(3) Employee engagement mechanism for addressing 
     workplace issues.--The Under Secretary of Transportation 
     shall provide a collaborative, integrated, employee 
     engagement mechanism, subject to chapter 71 of title 5, 
     United States Code, at every airport to address workplace 
     issues, except that collective bargaining over working 
     conditions shall not extend to pay. Employees shall not have 
     the right to engage in a strike and the Under Secretary may 
     take whatever actions may be necessary to carry out the 
     agency mission during emergencies, newly imminent threats, or 
     intelligence indicating a newly imminent emergency risk. No 
     properly classified information shall be divulged in any non-
     authorized forum.''.
       (2) Conforming amendments.--Section 111(d)(1) of the 
     Aviation and Transportation Security Act, as amended by 
     paragraph (1)(A), is amended--
       (A) by striking ``Under Secretary of Transportation for 
     Security'' and inserting ``Administrator of the 
     Transportation Security Administration''; and
       (B) by striking ``Under Secretary'' each place such appears 
     and inserting ``Administrator''.
       (b) Whistleblower Protections.--Section 883 of the Homeland 
     Security Act of 2002 (6 U.S.C. 463) is amended, in the matter 
     preceding paragraph (1), by inserting ``, or section 111(d) 
     of the Aviation and Transportation Security Act,'' after 
     ``this Act''.
       (c) Report to Congress.--
       (1) Report required.--Not later than 6 months after the 
     date of enactment of this Act, the Comptroller General of the 
     United States shall submit to the Committee on Homeland 
     Security and Governmental Affairs of the Senate and the 
     Committee on Homeland Security of the House of 
     Representatives a report on--
       (A) the pay system that applies with respect to TSA 
     employees as of the date of enactment of this Act; and
       (B) any changes to such system which would be made under 
     any regulations which have been prescribed under chapter 97 
     of title 5, United States Code.
       (2) Matters for inclusion.--The report required under 
     paragraph (1) shall include--
       (A) a brief description of each pay system described in 
     paragraphs (1)(A) and (1)(B), respectively;
       (B) a comparison of the relative advantages and 
     disadvantages of each of those pay systems; and
       (C) such other matters as the Comptroller General 
     determines appropriate.

[[Page 5666]]

       (d) This Section shall take effect one day after date of 
     enactment.

  The ACTING PRESIDENT pro tempore. The Senator from Maine.


                           Amendment No. 342

  Ms. COLLINS. Mr. President, later today, the Senate will vote on the 
amendment I have offered with a number of my colleagues--Senator 
Stevens, Senator Warner, Senator Coleman, Senator Sununu, and Senator 
Voinovich--that would provide certain employment rights for the 
Transportation Security Administration's employees.
  Throughout our committee's work on homeland security, it has become 
clear the ability to respond quickly and effectively to changing 
conditions, to emerging threats, to new intelligence, to impending 
crises is essential. From the intelligence community to our first 
responders, the key to an effective response is flexibility--putting 
assets and, more importantly, personnel where they are needed when they 
are needed with a minimum of bureaucracy.
  My questions about giving TSA employees the right to collectively 
bargain center around whether this right would hamper flexibility at a 
critical time. I have long been a supporter of Federal employees 
throughout my time in the Senate. I have worked in the public sector 
virtually my entire life, and I know how hard individuals at all levels 
of Government work to provide services to protect us and to serve us.
  It is my hope we can forge a compromise that preserves the 
flexibility--we have learned in classified briefings from Kip Hawley, 
the head of TSA--that is needed while at the same time recognizing that 
TSA employees deserve more employment rights. These employees are 
working hard every day to protect us. We should protect them.
  The TSA is charged with a great responsibility. In order to 
accomplish its critical national security mission, the Aviation 
Transportation Security Act provided the TSA Administrator with 
workforce flexibilities. These flexibilities allow the TSA 
Administrator to shift resources and to implement new procedures daily, 
in some cases hourly, in response to emergencies, canceled flights, and 
changing circumstances. This authority enables TSA to make the best and 
fullest use of its highly trained and dedicated workforce.
  This is not just theoretical. We have already seen the benefits of 
this authority and this flexibility. In both the aftermath of Hurricane 
Katrina and the thwarted airline bombing plot in Great Britain last 
year, TSA moved quickly to change the nature of its employees' work--
and even the location of that work--in response.
  Last December, when blizzards hit the Denver area and many local TSOs 
were unable to get to the airport, TSA acted quickly, flying in 
volunteer TSOs from Las Vegas to cover the shifts, and covering the Las 
Vegas shifts with officers who were transferred temporarily from Salt 
Lake City. Without this ability to deploy needed personnel where they 
were needed, on a moment's notice, the Denver airport would have been 
critically understaffed while hundreds, perhaps thousands, of travelers 
were stranded. This flexibility is essential.
  An even better example was the work that was done in the aftermath of 
the thwarted airline bombing plot last summer, where TSA, overnight, 
had to retrain its employees, had to deploy them differently, and was 
able to do so because of the flexibility that is in the current law.
  The legislation before the Senate is designed to implement the 
unfulfilled recommendations of the 9/11 Commission. Many of the 
recommendations were enacted in 2004 as part of the Intelligence Reform 
and Terrorism Prevention Act Senator Lieberman and I authored and 
worked so hard on. But the language concerning TSA employees' 
bargaining rights is an issue that was not addressed in this report. 
You can read this report, as I have, from cover to cover--I think it is 
567 pages--and you will not find a discussion of collective bargaining 
rights for TSA employees. So this is not a recommendation that was 
included in the 9/11 Commission's report.
  Before we so drastically change the TSA personnel system, we must 
ensure we do not interfere with TSA's ability to carry out its mission. 
I want to make clear that we should, however, make some changes in the 
system now. We have had enough experience with TSA over the past few 
years that there are a number of things that are obvious.
  First, we should bring TSA employees under the Whistleblower 
Protections Act which safeguards the rights of whistleblowers 
throughout the Federal Government. There is no reason to deny TSA 
employees that protection. My amendment would provide for that 
coverage.
  Second, we should make very clear that TSA members do have the right 
to join a union. That is a different issue from collective bargaining. 
Indeed, many TSA employees have chosen to join the union because then 
they have the right to representation by the union if there is a 
disciplinary action. So we should make that clear.
  Third, we should give TSA employees the right to an independent 
appeal of disciplinary actions, of adverse employment actions such as 
demotions or firings, and have that appeal heard by an independent 
agency, the Merit Systems Protection Board. It is this board that sits 
in judgment of appeals filed by other Federal employees, and I see no 
reason why the TSA employees should not have those same rights.
  Fourth, the amendment includes a provision codifying the pay-for-
performance system that TSA has used very successfully to retain and 
recruit good employees.
  Finally, the amendment we are offering provides for TSA, in a year's 
time, to come back to us with a report on whether other changes are 
needed in the personnel system. We have also tasked GAO with performing 
that duty. Now, that is important because we are still learning about 
TSA. As I said, I think we can make these significant changes now, but 
we need more time and study and consideration before going further, and 
that is why I have recommended that we have this report back.
  The Homeland Security and Governmental Affairs Committee's 
subcommittee which has jurisdiction over civil service issues just this 
week held its first hearing to look at this issue. So there is a lot of 
work that still needs to be done, but I think we can proceed now to 
provide these important protections.
  As we strive to protect our Nation and our people without diminishing 
civil liberties, we must do all we can to build a strong homeland 
security structure that upholds the rights of homeland security 
personnel. I believe we can provide TSA employees with important 
protections enjoyed by other Federal employees, such as the right to 
appeal adverse employment actions to the Merit Systems Protection Board 
and the statutory right to whistleblower protections, without 
disrupting TSA's established and proven personnel system. That 
personnel system was described in great detail to us in a classified 
briefing session as well as an open hearing as being necessary to 
accomplish the goals of the agency. So my amendment would give these 
rights to TSA employees.
  I have been working to try to achieve a middle ground between those 
who believe there should be no employment rights for TSA employees and 
those who believe we should allow them to engage in full collective 
bargaining. That is what my amendment attempts to do, is to chart that 
middle ground, to provide significant additional protections and rights 
to TSA employees without burdening a system that is working 
effectively.
  I urge my colleagues to support the amendment when we vote on it 
later today.
  Mr. President, I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Missouri is 
recognized.


                     Amendment No. 316, as Modified

  Mrs. McCASKILL. Mr. President, I have a great deal of respect for the 
Senator from Maine, and I am not just saying that, but I must rise to 
urge support of my amendment on this bill. Along with Senator 
Lieberman, I offered an amendment to the 9/11 bill

[[Page 5667]]

that would provide these basic rights to our airport screening 
officers. This amendment was in response to the incredibly high 
turnover rate they have at TSA and the realization that these officers 
are being treated differently than just about everybody else we see in 
uniform in the United States of America.
  After 9/11, there was an incredible demand around the country for 
hats and shirts that said ``New York Fire Department'' and ``NYPD'' 
because all of America realized the heroes these men were. When 
everyone else is running away from danger, the firefighters run into 
danger. When everyone's instinct is to flee in fear, they face that 
fear and they go into the breach. Our police officers do it all the 
time. In fact, this morning, the first people I saw when I came to the 
Capitol were Capitol police officers greeting me, checking my car, and 
standing guard around the Capitol to make sure we are protected from 
someone who would want to do our country harm.
  The irony of this debate is that all of those people I just talked 
about have these basic worker protections. Those men who gave their 
lives on 9/11 trying to save lives all were operating under collective 
bargaining. The Capitol Police, who protect us every day, operate under 
these same rules that my amendment is going to guarantee to the airport 
screening officers.
  Why in the world, if the sky is going to fall, if we give these 
workers these basic protections, why hasn't it fallen? Border Patrol, 
Customs agents, Coast Guard, FEMA, the Department of Defense civil 
employees--they were all ordered to do things after 9/11, and they, of 
course, did them. No one thought twice about falling back on some kind 
of worker protection. Frankly, I think it is moderately insulting to 
the men and women who are serving as screeners to act as if they would 
not be directed and go in a time of emergency.
  That is what my amendment does. It says that the head of TSA, the 
director of Homeland Security, the Secretary of Homeland Security, has 
the ability, at any time when there is a threat or an emergency, to 
direct these officers to do whatever is necessary to protect our 
country and the people who live here. It goes even further. It says 
they can't even bargain for higher pay, and it provides some of the 
same protections provided in the amendment of the Senator from Maine.
  I can't figure out why the idea that they would have worker 
protections through a collective bargaining agreement is so scary when 
you realize that most of the men and women around our country who are 
fighting fires and performing work are operating under those 
agreements, and obviously most of the Federal employees who do similar 
work in the Federal Government.
  There are so many things that have been claimed about this which 
simply aren't true. One of my favorites is that it is going to cost 
$160 million. Now, I can't quite figure out--and I know that somehow, 
something that costs a little ends up costing a lot sometimes in the 
Federal Government. First they said it was going to be $350 million. I 
think that figure made even them blush, so then they brought the figure 
down to $160 million. Maybe it is going to take 7 to 12 people across 
the country. I can't imagine where they would get a number like that to 
throw around. I have heard they will be required to negotiate every 
security protocol. That is simply not true. Federal employees have no 
right to bargain over an agency's internal security practices.
  There has been a lot of fiction that has been spread around the 
Capitol over the last few days about this amendment and what it will 
provide. It is going to provide something very simple: It is going to 
treat these officers who are screening men and women every day at our 
airports the same way the rest of the employees in FEMA are treated, 
the rest of the employees in Homeland Security are treated, our Capitol 
Police, our Coast Guard, our Border Patrol, and the men and women who 
went into the burning buildings on 9/11, to lose their lives in order 
to try to save lives.
  Mr. President, I yield the floor.
  The ACTING PRESIDENT pro tempore. Who yields time?
  Mr. LIEBERMAN. Mr. President, I note the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. KYL. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. KYL. Mr. President, I want to talk about a couple of the 
amendments that we have to the so-called 9/11 bill that is pending--an 
amendment which I hope can be adopted, one of which I talked about 
yesterday, which deals with the support for terrorists.
  Believe it or not, we don't have adequate criminal penalties for 
people who support rewarding terrorists for their actions or their 
families or those who support them. So one of the things we want to do 
is to ensure that we have a statute that can be enforced that says, if 
you are aiding the family or associates of a terrorist with the intent 
to encourage terrorist acts, that will be a crime prosecutable in the 
United States.
  I talked yesterday about an example that illustrates the need for 
this statute. In August of 2001, a Palestinian suicide bomber attacked 
the Sbarro pizza parlor in Jerusalem, and 15 people were killed. One of 
them was an American citizen, Shoshana Greenbaum, who was a 
schoolteacher, and she was pregnant. She was killed. Right after the 
bombing took place, the family of the suicide bomber was told to go to 
a particular Arab bank, and the bomber's family began receiving money 
from that bank. Eventually, a $6,000 lump sum payment was made.
  According to press accounts, this is not uncommon. In fact, it is 
frequently the way suicide bombers have been funded through this 
particular Arab bank. Others are funded in other ways. There are plenty 
of news accounts of Saudi charities, the Palestinian Authority, and 
even Saddam Hussein was known to have rewarded suicide bombers for 
their acts. There is a BBC report that Saddam Hussein paid a total of 
$35 million to terrorist families during their time. Obviously, we 
would like to discourage that.
  It is at least possible that if we can criminalize this activity that 
has a relationship to Americans, we would be able to make a difference, 
at least in some instances, in terms of whether a person would actually 
decide to commit a suicide bombing, based upon the fact that that 
person's family was going to be recompensed.
  This amendment would make it a Federal crime, with extraterritorial 
jurisdiction in cases linked to U.S. interests, to pay the families of 
suicide bombers and terrorists with the intent to facilitate a 
terrorist act.
  I hope this amendment can be adopted and that it will survive a 
conference committee. I see no reason that we could not have bipartisan 
support for it. The other thing that this amendment does is deal with 
the real workhorse of our law enforcement with respect to going after 
terrorists, the so- called material support statutes. It increases the 
maximum penalties for various material support statutes. I emphasize it 
increases the maximum, not the minimum, because there are certain 
situations in which sometimes you want to charge the minimum or plead 
down to the minimum. We don't want to affect that; we want to increase 
the maximum in certain instances.
  The material support statutes have been the Justice Department's 
workhorse in the war against terror, counting for a majority of the 
prosecutions that the Department has brought. It has been very 
effective, also, in starving terrorist groups of resources, which is 
one of the critical ways to disrupt the cells, we believe.
  The amendment increases the penalty in the following ways: Giving 
material support for a designated terrorist organization would be a 
maximum of 25 years, up from 15. Material support in the commission of 
a particular terrorist act is increased from a maximum number of 15 to 
a maximum of 40 years. That can obviously be a very severe act against 
U.S. interests. The maximum penalty for receiving military-type

[[Page 5668]]

training from a foreign terrorist organization would be increased from 
10 to 15 years. The amendment also adds attempts and conspiracies to 
the substantive offense of receiving military-type training and denies 
Federal benefits to persons convicted of terrorist offenses.
  All of these are designed to add to the ability of our prosecutors to 
go after people who are actually the ones who are enabling the 
terrorists to perform their heinous acts.
  Finally, the amendment expands existing proscriptions on the murder 
or assault of U.S. nationals overseas for terrorist purposes, so that 
the law punishes attempts and conspiracies to commit murder equally to 
the substantive offense. The amendment adds a new offense of kidnapping 
a U.S. national for terrorist purposes, regardless of whether a ransom 
is demanded. There are some limits in existing law that were put in the 
act before the new techniques and methodologies of terrorists in 
today's world began to be implemented; for example, requiring a ransom. 
We know today that some of these terrorist kidnappings are not for the 
purpose of getting ransom, they are for the purpose of terrorizing. If 
that is the case, then this statute would be usable by our law 
enforcement authorities.
  Finally, the amendment adds sexual assault to the types of injury 
that are punishable under the existing offense of assaults that result 
in serious bodily injury.
  Once again, I hope this will be considered an appropriate addition to 
the 9/11 legislation to make it easier for us to deny the funding to 
terrorist organizations and to deny funding to people who would be 
engaged in suicide attacks.
  The other amendment is an amendment to a provision of the bill that 
was added by Senator Feingold relating to data mining, which requires 
every Federal agency to submit reports to Congress on any search of a 
database that its employees perform in order, and I am quoting now, 
``to discover or locate a predictive pattern or anomaly indicative of 
terrorist or criminal activity.'' Among other things, the report is 
required to include a thorough description of the data-mining 
technology that is being used or will be used.
  Obviously, that probably is going to be getting into very classified 
information, and there are two things we want to ensure are changed in 
this provision. For one thing, the language in the bill does not 
include language that is included in other sections. It does not 
prevent disclosure of existing patents, trade secrets, proprietary 
business processes or intelligence sources and methods.
  I suspect that is an oversight. We need to include that because, in 
the past, when Congress has required the Executive to make reports on 
sensitive technologies to Congress, it has been careful to prevent the 
exposure of this type of information about patents and trade secrets, 
and so on. I hope we can include that in the legislation, and my staff 
has been talking to Senator Feingold's staff to see if they would be 
willing to do so.
  The other aspect is trying to protect the information that is 
classified. Originally, there was a concern that we were too broad with 
our proscription in trying to prevent classified information from being 
released to the public. So what we did was to modify the amendment to 
simply require that in the case of disclosure by Members of Congress or 
staff, this would be impermissible for classified information. If we 
are going to ask for reports of classified information, clearly, we 
should be willing to enforce the proscription on the release of that 
information. I am hoping we would be willing to do that as well.
  That is the second amendment. I hope my colleagues will be willing to 
support both amendments. I think they will add to the benefits of this 
legislation. With respect to at least one of these amendments, it is 
germane postcloture, but I am hoping we can get them both resolved 
before cloture is invoked on the bill.
  Mr. President, I yield the floor.
  Mr. VOINOVICH. Mr. President, I rise today to voice my support for 
amendment 342. I am proud to join my good friend, the Senator from 
Maine, the ranking member of the Committee on Homeland Security and 
Governmental Affairs, in cosponsoring this amendment.
  For the past several days, this body has been debating various 
amendments regarding the workforce authorities for the Transportation 
Security Administration. I would ask my colleagues to stop for a moment 
and consider the situation before us. The establishment of the 
Department of Homeland Security is one of the largest undertakings this 
Government has initiated since the creation of the Department of 
Defense in 1947. It includes a merger of 22 agencies and approximately 
180,000 employees. This merger is so complicated that the Government 
Accountability Office has identified the implementation and 
transformation of the Department as one of the 27 areas designated as 
high risk, subject to waste, fraud, abuse, and mismanagement.
  Many of my colleagues will recall the debate the Senate engaged in 
during the creation of the TSA. The Senate debated basic questions such 
as whether the screening function should be federalized. There was a 
lot of debate that it ought not to be federalized; that we should let 
the private sector do it. In the end, screeners were federalized, and 
TSA was charged with hiring approximately 55,000 screeners, or 
transportation security officers, in 1 year.
  I cannot think of a greater Government undertaking than creating an 
agency overnight to secure the safety and security of our airports and 
the traveling public in order to guarantee we never have another 9/11. 
I am absolutely convinced that if Congress did not provide TSA with the 
workforce flexibilities it did, TSA would never have met its statutory 
mandate to stand up in 1 year. Think about that. We got that done in 1 
year.
  My colleagues know I have not been the biggest fan of the Department 
of Homeland Security. I am still upset that the only high-risk area 
identified by GAO that does not have a strategic plan in place is DHS. 
That is why I am so pleased the underlying bill contains an amendment I 
offered in committee to establish a chief management officer for the 
Department. This 5-year term appointment is crucial to leading the 
transformation of the Department so it does not hobble along from one 
administration to another, struggling to complete its merger and its 
mission.
  I hope my colleagues have had the opportunity to meet with Assistant 
Secretary Kip Hawley, the TSA Administrator, who I think is one of the 
finest public administrators whom I have met so far in this 
administration. Mr. Hawley was confirmed in this position in July of 
2005. This is the second position at TSA he has held. In October 2001, 
Mr. Hawley was the senior adviser for the project team that worked to 
stand up the Agency. While TSA is by no means perfect, it is one of the 
more successful operating components of DHS. I wish others were as 
good.
  There is no question our enemies want to do harm to us through our 
airline and transportation systems. This threat is unrelenting, and TSA 
must be flexible, nimble, and innovative in order to respond to the 24-
hour, 7-day-a-week threat we have. The threat is out there constantly. 
It is not akin to something that happens every so often. It is there 24 
hours a day.
  Granted, as in all organizations, human capital at TSA is not 
perfect, but I have not seen any evidence that we need to throw the 
baby out with the bathwater; in other words, get rid of the system in 
place now and go to something else. There is no evidence to support 
this dismantling of TSA's personnel system and beginning anew, as the 
Senator from Connecticut has suggested.
  To my knowledge, the Senate has had one hearing on the TSA workforce, 
and that hearing was held this Monday in the Committee on Homeland 
Security and Governmental Affairs, of which I am the ranking member. 
This hearing was conducted after the committee adopted the amendment by 
the Senator from Connecticut. One can only conclude that the amendment 
was offered in response to labor's unhappiness. Labor was unhappy 
several years

[[Page 5669]]

ago that the title V provisions were waived for TSA. In other words, we 
gave them a separate personnel system because we wanted to see it get 
up and go and have the flexibility to get the job done.
  On the other hand, based on the information presented at the hearing 
on Monday, I believe some reforms to TSA's personnel authority are 
necessary at this time. This is this compromise. That is why I am happy 
to join with my colleagues, including the Senator from Maine, the 
senior Senator from Alaska, and the senior Senator from Virginia, in 
offering this amendment.
  While TSA has moved and continues to move in the right direction in 
providing safeguards for its employees, there is more we in Congress 
can do. After hearing testimony during Monday's hearing, I think it 
appropriate for the TSOs to be included in some basic workforce 
protections.
  While the Office of Special Counsel did not have statutory authority 
to investigate whistleblower claims at TSA, TSA and the Office of 
Special Counsel worked together to develop and implement a memorandum 
of understanding allowing the OSC to investigate retaliation claims. In 
other words, they got involved through a memorandum. This was signed in 
2002, and since that time OSC has received 124 whistleblower 
complaints.
  While I applaud TSA for taking this step and signing the MOU, I 
believe it is important for Congress to extend through statute the full 
authority of OSC and the Federal courts to investigate and hear cases 
of whistleblower retaliation. Let's change the law. Let's give them 
that right.
  After Monday's hearing, I also believe it is important to extend to 
TSO the ability to file a complaint with the Merit Systems Protection 
Board for an adverse action. This would include removal, suspension for 
more than 14 days, demotion, reduction in pay, or furlough. While I 
applaud TSA for developing and implementing a robust internal process, 
including an Ombudsman Office, Disciplinary Review Board, and Peer 
Review Board--they put all that in place--I believe the value of 
independent review of the MSPB that could follow the internal process 
is important to build further confidence in TSA's system and reassure 
those being hired and on the job. So you are going to have that 
available to you under the Collins amendment.
  In the unfortunate circumstances when claims are filed with OSC, or 
should the Collins amendment be adopted, with MSP, TSOs also have the 
right to union representation during these proceedings. A lot of people 
are not aware of this fact, that we have members of 13 unions of the 
42,000 TSOs. Some people got the idea that because we gave them the 
flexibility, they couldn't join a union. The fact is, they have joined. 
Many of them have joined a union, and the unions can represent them in 
the various appeals they may have in terms of personnel matters. 
However, something I learned during Monday's hearing is that the 
provision in the underlying bill would have a much broader implication 
on the workforce than reforming the personnel system. Using the 
authority in the Aviation Transportation and Security Act, TSA has been 
able to develop and implement the most extensive pay-for-performance 
system in the Federal Government. Did you hear that? Pay for 
performance in the Federal Government. That is a big deal. That is 
something which some of us have been working on--I have--for the last 8 
years.
  TSA has not developed this system in a vacuum. It received input from 
approximately 4,000 TSOs through 25 focus groups, and after the initial 
design, performance, accountability, and standards system--they call it 
PAF; that is their pay for performance--it was reviewed subsequently by 
focus groups and online surveys for additional feedback from the 
workforce.
  Perhaps more than any Member of this Senate, I have devoted extensive 
time, as chairman and ranking member of the subcommittee on the 
oversight of Government and the Federal workforce, to understand and 
develop ways to recruit, retain, and reward people who work in the 
Federal Government. I have partnered successfully with my colleagues to 
enact legislation to provide agencies with even greater flexibility to 
meet their workforce needs.
  We know that in order to be successful, we must have the right people 
with the right skills, with the right knowledge at the right place and 
at the right time. I do not believe it is appropriate for Congress to 
roll back any reform or flexibility without due consideration. Again, I 
remind my colleagues, the only hearing on this issue was held this 
week.
  As I mentioned, I am a strong supporter of pay for performance. Here 
in TSA, the Federal Government has the largest group of employees under 
this system. The Government-wide Senior Executive Service covers only 
6,000 employees, and the Department of Defense has made decisions for 
only 11,000 employees--in other words, 11,000 people in the Defense 
Department under pay for performance, 6,000 in the Senior Executive 
Service, and we have almost 55,000 in the TSA who are in pay for 
performance. Time and time again, Federal unions argue against pay for 
performance. This is a big deal. My colleagues ought to understand what 
this is about.
  Monday, the president of the National Federation of Government 
Employees reasserted his union's opposition to pay for performance. He 
doesn't want pay for performance. If you ask the American people, they 
will tell you they would like to see pay for performance. At a hearing 
of the Subcommittee on Oversight of Government Management and the 
Federal Workforce that I chaired last year, unions testified against 
legislation I introduced that would have required at least a three-
tiered rating system and prevented an employee whose job performance 
was unsatisfactory from receiving an annual pay increase.
  I am concerned that changing the personnel system and potentially 
making it subject to collective bargaining would set back the progress 
TSA has made. My colleagues must remember that TSA has existed for just 
over 4 years and its performance and standards system is just a year 
old. GAO noted that it takes about 4 or 5 years to properly assess a 
performance management system. We are not yet in a position to judge 
how the TSA system is working.
  The TSA's authority has allowed it to develop and implement 
innovative approaches through its strategic human capital management. 
TSA would lose that authority if the underlying provision of S. 4 were 
to be enacted into law. For example--this is really something unique--
TSA has initiated a pilot program to provide health care benefits to 
part-time screeners. They know they need full time and part time. But 
most of the time, part-time people do not get health insurance. They 
are doing that right now. So if you look at some of the really neat 
things they are doing over there, it just does not make sense for us to 
pull the plug.
  TSA recognizes the negative impact every screener who leaves TSA has 
on its ability to secure our transportation system. They know it costs 
$12,000 to hire and train a new screener. TSA knows it is in their best 
interests to retain every member of its dedicated workforce. They care 
about their employees. They want to motivate them; they want to reward 
them; they want to retain them, they want to reward them.
  Another key provision of the Collins amendment is the reports 
providing assessment of employee matters by GAO and TSA within a year. 
A year from now, let's look at what is going on over there.
  Congress must use this opportunity to fulfill its oversight objective 
and understand the strengths and shortfalls of the TSA system to make 
improvements. It is not appropriate for Congress to summarily dismiss 
all the work TSA has invested in its workforce just because a large 
Government employees union doesn't like it.
  The main consideration we should have as Members of the Senate is the 
security of the people in the United States of America. Yes, we want to

[[Page 5670]]

protect the rights of the people who work in the Federal Government. 
But if we have a system that is really working and making some real 
improvement and making sure we are not going to have another 9/11 from 
an airborne attack, we ought to let them continue to do the job they 
are doing and should not just snap our fingers and say: These people 
are unhappy about what is going on there. They think we ought to get 
rid of that system. I don't think we should do that. I think every 
Member of this Senate should think about it. This is real serious 
business.
  I know people on the other side of the aisle are under a lot of 
pressure. So am I. I know the president of both of the major unions 
here, and I have worked with them and tried in all these changes we 
have made in the human capital laws of the United States of America to 
take their concerns into consideration. But on this one, I am really 
begging my friends on the other side of the aisle to really look at 
where we are today and what this is all about and not throw the baby 
out with the bath water.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Whitehouse). The Senator from 
Pennsylvania.
  Mr. LIEBERMAN. Mr. President, if I may first ask unanimous consent 
that the Senate stand in recess at 10:40 subject to the call; and that 
at 1:30 p.m. today, there be 15 minutes of debate equally divided and 
controlled prior to a vote in relation to the McCaskill amendment No. 
316, as modified, followed by a vote in relation to the Collins 
amendment No. 342; that there be 2 minutes of debate equally divided 
between the votes and that no amendments be in order to either 
amendment prior to the vote; that at 1:45 p.m., without further 
intervening action or debate, the Senate proceed to vote in the order 
specified.
  The PRESIDING OFFICER. There is objection?
  Mr. SPECTER. Mr. President, reserving the right to object, I would 
like to clarify the status of amendment No. 286, which I laid down 
yesterday, the habeas corpus amendment. I just discussed with the 
Senator from Connecticut a unanimous consent request that I would make 
to get recognition when we resume after King Abdullah's speech. Might I 
inquire of the Senator from Connecticut what the sequence would be as 
to a continuation of the debate on the habeas corpus amendment?
  Mr. LIEBERMAN. Mr. President, if I may through the Chair, there are a 
number of Senators who said they wanted to come and discuss amendments 
after the Senate reconvenes. How much time did the Senator from 
Pennsylvania desire to discuss the habeas amendment?
  Mr. SPECTER. It is hard to say because there are a number of Senators 
who want to debate the issue. I am advised that there is not a 
willingness to give a time agreement, so it is not possible to really 
answer that question.
  Mr. LIEBERMAN. Understood. Maybe I misled the Senator 
unintentionally. I am not looking for a time agreement on debate on the 
amendment; I would just like to know how long he would like to speak 
when we reconvene so we set it down for a time limit because I know 
there are other Senators from both parties who want to come over.
  Mr. SPECTER. I would like 1 hour.
  Mr. LIEBERMAN. I would accept that amendment to my request, with the 
understanding that not interfere with the fact that by 1:30, we will go 
back to the Collins and McCaskill amendments. I don't think it would.
  Mr. SPECTER. Mr. President, if I might be recognized at noon when we 
return after the Abdullah speech?
  Mr. LIEBERMAN. I have no objection.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Mr. President, I just want to be clear that the Senator 
from Pennsylvania will not be changing the agreement the Senator from 
Connecticut just announced that will allow the 15 minutes of debate 
prior to the 1:45 votes.
  Mr. LIEBERMAN. Not at all. Mr. President, I again ask unanimous 
consent on the unanimous consent agreement that I proposed with regard 
to the votes on the Collins and McCaskill amendments, and then we will 
come directly to Senator Specter.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. SPECTER. I ask unanimous consent that I be recognized when the 
Senate reconvenes at 12:00 to speak for 1 hour.
  Mr. LIEBERMAN. Mr. President, I just would say, or whenever. If we 
come back before 12, you will be recognized to speak for an hour.
  Mr. SPECTER. That is fine.
  Mr. LIEBERMAN. Or after 12, if that is the case. We have no 
objection.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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