[Senate Report 107-175]
[From the U.S. Government Publishing Office]
Calendar No. 440
107th Congress
2d Session SENATE Report
107-175
_______________________________________________________________________
NATIONAL HOMELAND SECURITY AND COMBATING TERRORISM ACT OF 2002
__________
R E P O R T
OF THE
COMMITTEE ON GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
together with
ADDITIONAL VIEWS
TO ACCOMPANY
S. 2452
TO ESTABLISH THE DEPARTMENT OF NATIONAL HOMELAND SECURITY AND THE
NATIONAL OFFICE FOR COMBATING TERRORISM
June 24, 2002.--Ordered to be printed
COMMITTEE ON GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan FRED THOMPSON, Tennessee
DANIEL K. AKAKA, Hawaii TED STEVENS, Alaska
RICHARD J. DURBIN, Illinois SUSAN M. COLLINS, Maine
ROBERT G. TORRICELLI, New Jersey GEORGE V. VOINOVICH, Ohio
MAX CLELAND, Georgia THAD COCHRAN, Mississippi
THOMAS R. CARPER, Delaware ROBERT F. BENNETT, Utah
JEAN CARNAHAN, Missouri JIM BUNNING, Kentucky
MARK DAYTON, Minnesota PETER G. FITZGERALD, Illinois
Joyce A. Rechtschaffen, Staff Director and Counsel
Holly A. Idelson, Counsel
Michael L. Alexander, Professional Staff Member
Richard A. Hertling, Minority Staff Director
Jayson P. Roehl, Minority Professional Staff Member
Darla D. Cassell, Chief Clerk
Calendar No. 440
107th Congress Report
SENATE
2d Session 107-175
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NATIONAL HOMELAND SECURITY AND COMBATING TERRORISM ACT OF 2002
_______
June 24, 2002.--Ordered to be printed
_______
Mr. Lieberman, from the Committee on Governmental Affairs, submitted
the following
R E P O R T
[To accompany S. 2452]
The Committee on Governmental Affairs, to which was
referred the bill (S. 2452) to establish the Department of
National Homeland Security and the National Office for
Combating Terrorism, reports favorably thereon with amendments
and recommends that the bill as amended do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for Legislation..............................3
III. Discussion of Legislation........................................8
IV. Legislative History.............................................13
V. Section-by-Section Analysis.....................................23
VI. Regulatory Impact...............................................30
VII. CBO Cost Estimate...............................................30
VIII.Additional Views................................................34
IX. Changes to Existing Law.........................................36
I. Purpose and Summary
The terrorist attacks of September 11, 2001 were a horrific
wake-up call for the nation. On that beautiful fall day,
thousands of citizens lost their lives without warning.
Suddenly, U.S. citizens realized that warfare had changed and
they were vulnerable as civilians in their home towns, simply
going about their daily lives. Almost as quickly, many policy
makers recognized that the government had not changed to meet
these new threats. The responsibility for protecting the
nation's citizens and critical assets on U.S. soil was spread
among dozens of departments and agencies, with no shared
strategic vision or effective means of coordination.
On October 8, 2001, President Bush created an Office of
Homeland Security within the White House to coordinate federal
programs related to terrorist threats to the United States.
However, many lawmakers and policy experts immediately
questioned whether such a position would have sufficient
authority to make a difference on this critical issue, and
began to press for stronger alternatives--including a new
cabinet-level department encompassing key homeland security
agencies and programs. On October 11, 2001, Senators Lieberman
and Specterintroduced S. 1534, establishing a Department of
National Homeland Security. ``I am convinced that protecting our
homeland requires nothing less than the establishment of a robust,
cabinet-level Department, and led by a Secretary who has executive
control over his organization's budget, the ability to deploy personnel
and resources, and the capacity to make and implement decisions
immediately,'' Senator Lieberman said introducing the bill.\1\ ``The
Secretary for Homeland Security would have the rank and power to ensure
that the security of our homeland remains high on our national agenda,
and that all necessary resources are made available to that end.''
Senator Specter said the legislation was a recognition of the new
security challenges facing the nation. ``The events of September 11th
demonstrate that the threats to our security are no longer the same
threats as we faced immediately after World War II,'' Specter stated.
``The need to establish the Department of Homeland Security recognizes
this changed threat.'' \2\
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\1\ Statement of Senator Joseph I. Lieberman of Connecticut,
Congressional Record, October 11, 2001, at S 10647.
\2\ Senator Arlen Specter, written statement, Governmental Affairs
Committee, October 12, 2001, at 55. (S. Hrg. 107-212)
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By June 2002, President Bush had reached the same
conclusion. In a televised national address, President Bush
stated:
After September 11th, we needed to move quickly, and
so I appointed Tom Ridge as my Homeland Security
Advisor. As Governor Ridge has worked with all levels
of government to prepare a national strategy, and as we
have learned more about the plans and capabilities of
the terrorist network, we have concluded that our
government must be reorganized to deal more effectively
with the new threats of the 21st century.\3\
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\3\ Remarks by the President in Address to the Nation, June 6,
2002, found at http://www.whitehouse.gov. (Hereinafter ``Remarks by the
President in Address to the Nation.'')
President Bush stated the problems as follows: ``Right now,
as many as a hundred different government agencies have some
responsibilities for homeland security, and no one has final
accountability.'' \4\ But once a new department is created, he
said, ``[e]mployees of this new agency will come to work every
morning knowing their most important job is to protect their
fellow citizens.'' \5\
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\4\ Remarks by the President in Address to the Nation.
\5\ Remarks by the President in Address to the Nation.
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S. 2452, The National Homeland Security and Combating
Terrorism Act of 2002, is a bipartisan bill to create such a
department and, more broadly, create a permanent and effective
government structure to keep U.S. citizens and assets safe at
home. Introduced on May 2, 2002 by Senators Lieberman, Specter
and Graham, it combines the earlier, October 2001 proposal by
Senator Lieberman and Senator Specter to create a cabinet-level
Department of National Homeland Security (S. 1534), and one by
Senator Graham to create a White House Office on Combating
Terrorism (S. 1449). The new department would consolidate a
range of agencies with key homeland security responsibilities
for preventing, protecting against, and responding to terrorist
and other threats on U.S. soil. Those agencies include the
Coast Guard, Customs, the law enforcement programs of the
Immigration and Naturalization Service (INS), the Federal
Emergency Management Agency (FEMA), the National Domestic
Preparedness Office, the National Infrastructure Protection
Center, portions of the Animal Plant Health Inspection Service
pertaining to quarantine inspections at points of entry, and
the Critical Infrastructure Assurance Office at the Commerce
Department. However, the department would not include all of
the important federal programs concerning homeland security,
such as the intelligence agencies, the Department of Defense
and others. Therefore, the White House terrorism office would
be responsible for coordinating terrorism policy government-
wide. The White House terrorism director, working with the
Secretary of Homeland Security, would write a national strategy
to combat terrorism and the director would review the budgets
of all the federal terrorism programs.
II. Background and Need for Legislation
The commissions
As unimaginable as the September 11 attacks seemed to many,
in truth they only confirmed vulnerabilities some experts and
policymakers had already identified. Several expert commissions
had determined that the United States was at risk for
international attacks on domestic soil and that the Federal
government was poorly organized to detect, prevent, or counter
such attacks. In the aftermath of the September attacks, the
work of these commissions provided an invaluable starting point
for understanding the weak links in the nation's homeland
security and for taking action to strengthen them.
There was an array of studies and analysis prior to
September 11, acknowledging the rising threat of international
terrorism on U.S. soil. For instance, the National Commission
on Terrorism, chaired by Ambassador L. Paul Bremer III, in June
2000 warned that international terrorists were increasingly
seeking to inflict mass casualties, both overseas and within
the United States.\6\ The report called for increased
intelligence efforts to head off potential terrorist attacks,
as well as heightened preparedness measures at home in the
event that a catastrophic terrorist attack did occur. Two
other, high-profile commissions produced subsequent reports
that proved particularly timely and relevant. One of these was
the United States Commission on National Security/21st Century,
known as the Hart-Rudman Commission after its two co-chairs,
former Senators Gary Hart and Warren Rudman. The Hart-Rudman
Commission was commissioned by the Department of Defense in
September 1999 to conduct a broad assessment of U.S. security
threats and preparedness in the new century. The other was the
Advisory Panel to Assess Domestic Response Capabilities for
Terrorism Involving Weapons of Mass Destruction, known as the
Gilmore Commission after its chairman, then-Virginia Gov. James
Gilmore III. The Gilmore Commission was created in the Fiscal
1999 Defense Authorization Act and charged with examining
domestic response capabilities to weapons of mass
destruction.\7\ The Hart-Rudman and Gilmore commissions reached
certain common conclusions. Both found that asymmetrical force
and other dynamics have made conventional warfare against the
U.S. prohibitive for many would-be attackers and have given
rise to a new array of threats on U.S. soil--such as cyber or
biological attacks and attacks on non-military targets. The
commissions also agreed that the Federal government needed new
strategies to combat these threats, and new governmental
structures to effectuate these strategies. It is a measure of
the challenge, for instance, that policymakers cannot even
agree how many agencies are involved in homeland security or
terrorism. One of the more conservative estimates is 40.\8\
President Bush has said there are 100 federal agencies with
homeland security responsibilities.\9\ A White House chart
depicting the Federal agencies with key homeland security
duties presents a daunting tangle of programs spread across the
government. [See Figure 1.]
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\6\ ``Countering the Changing Threat of International Terrorism,''
Report of the National Commission on Terrorism, pursuant to Public Law
277, 105th Congress, found at http://www.fas.org/irp/threat/
commission.html.
\7\ Section 1405 of the National Defense Authorization Act for
Fiscal Year 1999, Public Law 105-261 (H.R. 3616, 105th Congress, 2d
Session) (October 17, 1998).
\8\ ``Combating Terrorism: Selected Challenges and Related
Recommendations,'' GAO-01-822, September 2001, at 23.
\9\ Remarks by the President in Address to the Nation.
For instance, border security alone involves the work of
Coast Guard, Customs, INS, Agriculture Department inspectors
and others, to secure 95,000 miles of shoreline, 5,525 miles of
border with Canada and 1,989 miles with Mexico.\10\ Every day,
more than 1.3 million people and $8.8 billion worth of goods
are processed at entry points.\11\ Yet, the federal government
does not have effective systems to process and monitor this
traffic in a credible way. Dr. Stephen Flynn, a former Coast
Guard officer and an expert on border security issues, has said
that the existing border security programs have no way to
filter out the bad traffic from the good: ``This nation
presently has no credible way to reliably detect and intercept
illegal and dangerous people and goods intent on entering this
country. Our border management systems are broken.'' \12\
Flynn's assessment is shared by many. A recent Brookings
Institution report on homeland security endorsed the effort to
consolidate federal border agencies: ``There may indeed be some
historical logic to the disparate organizational placement of
these border agencies. But the current case for the status quo
is extraordinarily weak. Not a single one of them is central to
the mission of its cabinet-agency home-not the Customs Service,
not the INS enforcement arm, not U.S. Department of Agriculture
quarantine inspection, not the Coast Guard.'' \13\ Indeed, poor
coordination among federal border agencies has been a concern
for years, prompting repeated efforts at reform and
reorganization.\14\
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\10\ ``The Department of Homeland Security,'' White House briefing
book, June 2002 at 9.
\11\ ``Road Map for National Security: Imperative for Change,'' The
United States Commission on National Security/21st Century at 16, found
at http://www.nssg.gov. (Hereinafter ``Road Map for National Security:
Imperative for Change.'')
\12\ ``Dr. Stephen Flynn, testimony, Governmental Affairs Committee
hearing, October 12, 2001, at 29. (S. Hrg. 107-212)
\13\ ``Protecting the American Homeland,'' Brookings Institution
Press at 118.
\14\ See ``Reorganization Proposals for U.S. Border Management
Agencies,'' Frederick M. Kaiser, Congressional Research Service, 97-974
GOV (updated July 22, 1999).
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The Hart-Rudman and Gilmore panels came to somewhat
different conclusions about how to address the need for greater
governmental coordination on homeland security.
The Hart-Rudman commission, charged with examining national
security needs in the new century, took a broad view of the
issue.\15\ Its most dramatic recommendation was to create an
independent National Homeland Security Agency responsible for
planning and coordinating an array of federal activities
related to homeland security that are currently housed in the
Federal Emergency Management Agency (FEMA), the Coast Guard,
the Customs Service, and the Border Patrol. The Commission
reasoned that these agencies were often neglected and
underfunded in their present locations. Commenting on the
placement of Coast Guard (in the Department of Transportation),
Customs (in the Treasury Department) and Border Patrol (in the
Justice Department), the Hart-Rudman Commission concluded, ``in
each case, the border defense agency is far from the mainstream
of its parent department's agenda and consequently receives
limited attention from the department's senior officials.''
\16\ Grouped together in a new homeland security department,
the agencies might receive needed attention and resources for
their homeland security responsibilities and other functions:
``Their individual capabilities will be molded into a stronger
and more effective system, and this realignment will help
ensure that sufficient resources are devoted to tasks crucial
to both public safety and U.S. trade and economic interests.''
\17\ The consolidation could also create a more efficient
system by highlighting, and eliminating, redundancies among
these agencies. As proposed, these agencies would not be
restructured so much as reassembled as components of a new
agency with a new leadership structure. Specifically, the
leadership of the new department would consist of three
directorates: Prevention (primarily border security), Critical
Infrastructure Protection, and Emergency Preparedness and
Response. Beyond the advantages of consolidation for the
specific agencies being moved, forging the new department will
create a cabinet official focused on homeland security--giving
the issue the consistent attention it warrants within the
federal government generally.
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\15\ The Commission has issued three reports. The Phase I report
outlines threats to U.S. security in the 21st century, and Phase II
outlines the need for a new strategy to combat these threats. The Phase
III report, released in March 2001, outlines a series of organizational
changes to address the findings of the earlier reports. It is this
third report, ``Road Map for National Security: Imperative for
Change,'' that urges creation of a new agency for homeland security.
\16\ ``Road Map for National Security: Imperative for Change'' at
15.
\17\ ``Road Map for National Security: Imperative for Change'' at
16.
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The Gilmore Commission was convened to look at the somewhat
narrower question of domestic response capabilities to weapons
of mass destruction.\18\ The report concluded that ``the
federal government has no coherent, functional national
strategy for combating terrorism'' and urged the president to
craft such a strategy within one year. From an organizational
standpoint, its key recommendation was to create a ``National
Office for Combating Terrorism'' to formulate and oversee anti-
terrorism strategy and serve as a central resource on the issue
in the White House. The director of the national office would
report directly to the President. As outlined by the report,
this office would have at least five major sections: (1)
domestic preparedness, (2) intelligence, (3) health and medical
programs, (4) research, development, testing, and evaluation
for technologies related to combating terrorism, and (5)
management and budget. The national office would have authority
to review federal agency programs and budgets to ensure that
they comply with the priorities of the national strategy, and
to weed out duplication. This budget oversight would include a
certification process for agencies, with disputes ultimately
resolved by the President. While the proposed White House
office would have broad policy and budget responsibilities
regarding terrorism, it would not have direct operational
control over federal programs in this area. Operational control
would remain in the federal agencies with existing programs.
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\18\ ``The Gilmore Commission has issued three reports, the most
recent in December 2001.
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The General Accounting Office (``GAO'') affirmed the key
message of these two commissions. As directed by the Armed
Services Committees in the FY 2001 Defense Authorization bill,
the GAO reviewed all federal efforts to combat terrorist
attacks on domestic soil. That report was released in September
2001, soon after the attacks.\19\ It did not go as far as the
Hart-Rudman or Gilmore commissions in recommending specific
organizational changes; however, its findings tracked many of
the conclusions of those reports. Specifically, the report
concluded that federal government needs a focal point for
leadership and coordination of terrorism policy.
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\19\ ``Combating Terrorism: Selected Challenges and Related
Recommendations,'' GAO-01-822, September 2001.
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Executive Order
Several weeks after the September 11 attacks, President
Bush named Pennsylvania Governor Tom Ridge to lead a new White
House Office of Homeland Security. The mission of the new
office was ``to develop and coordinate the implementation of a
comprehensive national strategy to secure the United States
from terrorist threats or attacks.'' \20\ More specifically,
the office was to coordinate executive branch efforts to
``detect, prepare for, prevent, protect against, respond to,
and recover from terrorist attacks within the United States.''
Governor Ridge, as Director of Homeland Security, would be
``the individual primarily responsible'' for coordinating
federal efforts in the event of an imminent terrorist threat
and during and in the immediate aftermath of an attack. The
Director was also charged with reviewing the budgets of
programs related to homeland security and certifying whether
such funding was adequate. Finally, the executive order also
created a Homeland Security Council, comprised of the
President, Vice President and an array of cabinet officers, to
help advise the President on homeland security matters.
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\20\ Executive Order 13228, October 8, 2001.
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While many in Congress and elsewhere cheered the selection
of Ridge, many also immediately questioned whether he had been
given the necessary powers to succeed in his task. Critics of
the new homeland office noted that Ridge's office had little or
no operational powers and apparently would be largely dependent
on detailees borrowed from other agencies. Many argued that
Ridge would need full budget and operational authority to
galvanize federal programs concerning homeland security into a
cohesive team. Ensuring accountability to Congress and the
public has also been a key concern. Some lawmakers, while not
proposing a specific reorganization, called for making Ridge's
job a Senate-confirmed position. The President has maintained
that Ridge is his personal advisor and, therefore, it would not
be appropriate for him to testify before Congress. On this
basis, Ridge declined invitations to appear before
Congressional panels. Lawmakers have complained that this is
inappropriate, given Ridge's acknowledged influence over the
administration's requested funding for homeland security
initiatives and other key matters. Beyond the issue of
testimony, some lawmakers and policy experts contended that
only a statutory position--and one subject to Senate
confirmation--would carry sufficient political weight and
permanence to have a real influence on other cabinet
secretaries.
III. Discussion of Legislation
S. 2452, The National Homeland Security and Combating
Terrorism Act of 2002, would create a National Department of
Homeland Security and a White House Office on Combating
Terrorism. The new department would provide new leadership on a
range of homeland threats, including terrorism, by
consolidating a range of federal agencies and programs
responsible for border security, critical infrastructure
protection, and emergency preparedness and response. The
Secretary will also play a critical role as the lead resource
for and liaison to State and local authorities, as well as
private sector entities, on the front lines for homeland
security. The new White House terrorism director would play a
government-wide coordinating role on terrorism, focusing in
particular on matters outside the purview of the new Homeland
Security Secretary such as military and intelligence policy.
The bill envisions that these two offices would work closely
together on strategy and budget recommendations related to
terrorism.
There is a substantial rationale for these two mutually
dependant entities. A White House Office never will have a
significant staff or budget. Such an office must rely on a
connection to the President for its power and authority,
which--if the history of White House ``czars'' provides an
example--may ebb and flow from year to year and administration
to administration. In contrast, creating a line agency under a
cabinet secretary assures that substantial budgeting and
staffing will be focused on homeland security on an ongoing
basis in a series of areas important to that security,
regardless of the strength of the White House advisor's office.
It will help assure a continuing emphasis on this threat area,
and ensure a Congressional connection on these problems and
Congressional budgeting prioritization for them. On the other
hand, a cabinet secretary will not be able to compel co-equal
cabinet officers in such areas as defense and intelligence, to
emphasize terrorism threats and coordinate with other federal
entities. A White House office can be a crucial complement to a
line agency to assure coordination of government agencies
outside the Homeland Secretary's direct control. The homeland
security threat is so broad that both entities appear critical
for an adequate governmental response.
Title I of the bill is an expanded version of Senator
Lieberman's and Senator Specter's earlier proposal (S. 1534) to
establish a cabinet level Department of National Homeland
Security, led by a Presidentially appointed, Senate-confirmed
Secretary. The Secretary will also be a statutory member of the
National Security Council. The legislation, modeled on the
recommendations of the Hart-Rudman Commission, combines the
Coast Guard, Customs, the law enforcement programs of the
Immigration and Naturalization Service (including Border
Patrol), FEMA, the National Domestic Preparedness Office and
the National Infrastructure Protection Center (both now in the
Justice Department), portions of the Animal Plant Health
Inspection Service (now in the USDA) pertaining to quarantine
inspections at points of entry, and the Critical Infrastructure
Assurance Office (now in Commerce). These agencies and programs
would be grouped in three directorates: Border and
Transportation Protection, Critical Infrastructure Protection,
and Emergency Preparedness and Response. These directorates
should be leanly staffed, simply providing a means to integrate
the activities of the department's component agencies and
programs. The transferred agencies would continue to perform
their non-security missions, just as they perform their
homeland security functions from their current locations.
The directorate of Border and Transportation Protection
would primarily encompass border security, overseeing the
combined duties of the Coast Guard, Border Patrol and other INS
law enforcement programs, Customs, and the border inspection
programs of the agricultural quarantine service. The
reorganization would allow for better coordination and
information-sharing between these agencies, and reflect their
shared mission as a frontline defense against dangerous people
or goods entering the U.S. Currently, Stephen Flynn testified,
``the front-line agencies cannot even effectively communicate
with each other.'' \21\ This consolidation is in no way
intended to discourage legal immigration or trade across U.S.
borders. Immigrants have provided invaluable cultural and
economic contributions to the nation, while international trade
is a critical component of national, and global, prosperity.
Rather, a more cohesive and efficient border system should
facilitate legal trade and immigration, while simultaneously
increasing the chances of apprehending dangerous entries of
people or products. The Coast Guard and Customs would be
maintained as distinct entities, however, and all of the
transferred programs and agencies would retain and be required
to continue their non-security missions. For instance, the
Coast Guard's search and rescue operations would not be
diminished. Transferred agencies may also need to maintain
close ties to related programs within their former parent
agencies. In particular, the law enforcement pieces transferred
from INS, for instance, would necessarily need to maintain
close coordination with the service programs that would remain
in the Justice Department. This division of INS programs into
``enforcement'' and ``service'' components tracks an
administrative reorganization plan that is already underway.
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\21\ Stephen Flynn, testimony, Senate Governmental Affairs
Committee, Oct. 12, 2001 at 30. (S. Hrg. 107-212)
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The Critical Infrastructure Protection directorate would
oversee the critical physical assets and information networks
of the nation, including efforts to ensure that the government
has adequate expertise to ensure cyber security. The office
would also coordinate efforts to protect critical
infrastructure from electronic or physical attacks. This
central office would combine several federal programs that are
currently spread among different agencies: the Critical
Infrastructure Assurance Office in the Commerce Department; the
National Infrastructure Protection Center in the FBI (which
gathers information and provides warnings of cyber attacks);
and the Information Sharing and Analysis Centers or ISACs,
which are government-sponsored committees made up of private
sector experts who share plans and procedures on information
security in their respective fields amongst themselves and with
other ISACs and the government. This consolidation should give
the nation a more focused and coordinated effort on critical
infrastructure protection. As Frank Cilluffo, a security expert
at the Center for Strategic and International Studies,
testified: ``Critical to the Federal government effort is
having at its apex a single individual or group endowed with
the requisite powers and responsibilities to make the system
work.'' Jamie Gorelick, Vice Chair of Fannie Mae and a former
Justice Department official involved with critical
infrastructure protection efforts, testified that ``the many
and varied responsibilities of organizations in this area could
benefit from clarification to reduce redundancy and turf
battles. Responsibility for the identification and the planning
for protection of `key assets' resides in the FBI's NIPC, the
Commerce Department's CIAO and, as the Defense Department moves
closer to a homeland security role, likely there as well. Those
of us who help run key assets need to know with whom to work.''
\22\ Gorelick said the private sector is willing to do its part
in this area, but needs ``coherent, cohesive leadership from
the government and a clear understanding of who is doing what
in the government,'' as well as government resources to
establish public-private networks to help the private sector
work collaboratively on critical infrastructure protection.
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\22\ Gorelick written testimony, Senate Governmental Affairs
Committee, Oct. 4, 2001. (S. Hrg. 107-258)
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The Emergency Preparedness and Response directorate would
take the lead on preparations and crisis management operations.
FEMA would be the core of this new directorate, but with
strengthened capabilities to prepare for as well as respond to
natural and man-made disasters. The Department would maintain
FEMA's regional offices and build on its contacts with state
and local officials to create an effective national network to
address terrorist threats. It would also include the National
Domestic Preparedness Office, currently in the Federal Bureau
of Investigation within the Justice Department. This domestic
preparedness office was created to help State and local
jurisdictions prepare for and respond to terrorist attacks
involving weapons of mass destruction. Under the bill, this
office would be combined with complementary efforts within FEMA
under the Emergency Preparedness and Response Directorate. The
Secretary isalso charged with creating a National Crisis Action
Center to serve as the focal point for monitoring emergencies and for
coordinating Federal support for state and local governments and the
private sector in crises.
The Department would have a coordinating center intended to
facilitate ready communication with other Federal departments
that have homeland security responsibilities. At the
Secretary's request, each Federal department or agency would
have to supply one liaison for the center. The Secretary could
request other representatives, as well as designees from state
and local government, as needed. The Director of the
Coordinating Center would work to ensure that law enforcement,
immigration, and intelligence databases containing information
relevant to homeland security are compatible.
The Department will also have an Office of Science and
Technology to advise the Secretary and to coordinate across the
department and other agencies' research and development efforts
related to overall homeland security. Technology must play
critical role if this country is to enhance homeland security
without prohibitive costs. Whether the issue is screening
baggage or shipping containers, creating vaccines for bioterror
threats, or detecting and thwarting crippling computer viruses,
scientific research and development is a vital component of
meeting the challenge of terrorism at home. To ensure the
department gets off to a quick start on the research and
development (``R&D'') front, the legislation creates an
acceleration fund to promote promising R&D related to homeland
security, and authorizes $200 million for the fund in FY 2003.
The fund can be used to match and leverage R&D in other
agencies and industry to encourage R&D coordination. Two
interagency working groups will help the Director of the Office
of Science and Technology set research priorities and
administer the fund. The first group will ensure interagency
coordination and develop an R&D ``roadmap'' for developing key
technology options. The second will operate at the technologist
level and include technology working groups organized around
key threat areas, such as bioterror or cybersecurity. The
acceleration fund seeks to jumpstart critical technologies
related to homeland security that are nearly ready for
development and deployment, but might languish without an
infusion of money and attention. It is modeled on the approach
and authorities used by the Defense Advanced Research Projects
Agency (``DARPA''), which was created after the Russian launch
of Sputnik to spur U.S. technologies related to national
security. Like DARPA, the acceleration fund seeks to create a
speedy and flexible vehicle to promote vital new
technologies.\23\ The Department will not have its own large
science bureaucracy, but will house a small, highly-talented
science team, like DARPA, and it will need the tools to be able
to encourage existing labs and science agencies to address
homeland security threats. The fund, the working groups, the
interagency R&D coordination function and the technology
roadmapping process are those tools, and should enable the
Department to play this critical role.
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\23\ The general model for the proposed Office of Science and
Technology is discussed in more detail on pp. 43-49 in the Winter 2001-
02 issue of ``Issues in Science and Technology'' published by the
National Academy of Sciences, et al.
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Section 105 of the bill also calls upon the Secretary of
Homeland Security to report back to Congress after one year on
the need for additional consolidation, such as in the areas of
border and transportation security.
Title II tracks previous legislation introduced by Senator
Graham (S. 1449). It establishes the National Office for
Combating Terrorism (NOCT) in the White House, which will be
led by a Presidentially appointed, Senate-confirmed Director,
who is an adviser to the National Security Council. The
Director will seek to ensure that the many agencies involved
with combating terrorism are operating from a common strategy,
have sufficient resources to their mission, and are not
duplicating or undermining the efforts of other federal
agencies. The Director would coordinate the terrorism-related
work of federal agencies outside the new Department of Homeland
Security, particularly the intelligence agencies and military
assets, and help ensure that these agencies interface well with
the Department. The Director will direct and review the
development of a comprehensive national assessment of terrorist
threats; craft, with the Secretary, a comprehensive strategy to
combat terrorism; coordinate development of a comprehensive
annual budget to implement the strategy; and exercise budget
review and decertification authority over programs in the
terrorism prevention budget.
Title III of the bill calls for a comprehensive national
strategy to combat terrorism, to be developed collaboratively
by the new Secretary of Homeland Security and the Director of
the White House Office for Combating Terrorism. The Secretary
will have the lead role on issues of border security, critical
infrastructure protection, emergency preparation and response,
and integration with state and local efforts. The Director of
the NOCT will have overall responsibility for preparing the
strategy, and will take the lead on strategic planning
concerning intelligence and military assets, law enforcement,
and diplomacy. The Director, working with the Secretary, can
ensure the coordination of critical counter-terrorism areas of
government outside of the Secretary's direct control. This
title establishes an interagency council, to be co-chaired by
the Secretary and Director, to assist with preparation and
implementation of the strategy. The bill also establishes a
non-partisan, 9-member panel of outside experts to provide an
assessment of the terrorism strategy (similar to the National
Defense Panel that, in 1999, assessed the first Department of
Defense Quadrennial Defense Review for military planning). In
the area of counterterrorism, complacency is a constant
concern, and the panel should help assure an outsider-based,
``Red Team'' critique of the Strategy on a periodic basis.
Title IV of the bill seeks to encourage emergency
preparedness nationwide. The legislation would set up a
clearinghouse on emergency preparedness in the Department to
provide a one-stop resource for information about grants and
other resources on emergency preparedness. It would also create
a pilot program to support private sector preparedness
initiatives, and establish the week including September 11 each
year as National Emergency Preparedness Week, requesting the
President to so designate it.
IV. Legislative History
S. 2452, the ``National Homeland Security and Combating
Terrorism Act of 2002,'' was introduced by Senators Lieberman,
Specter and Graham on May 2, 2002 and referred to the
Committee. S. 2452 incorporated substantial portions of two
other bills: S. 1449, which was introduced by Senator Graham
and others on September 21, 2002, and S. 1534, which was
introduced by Senators Lieberman and Specter on October 11,
2001. Both of these bills werealso referred to the Committee.
In the wake of the September 11, 2001 terrorist attacks,
the Committee held 14 hearings on homeland security, including
three (September 21, 2001, October 12, 2001, and April 11,
2002) which focused specifically on how government can best be
organized to meet the threat of terrorism on our homeland. The
other hearings focused on particular homeland security
concerns, and included consideration of organizational issues.
Those hearings addressed critical infrastructure protection
(September 12, 2001, October 4, 2001, and May 8, 2002), airline
safety (September 25, 2001, November 14, 2001), bioterrorism
(October 17, 2001), mail safety (October 30 and 31, 2001), port
security (December 6, 2001), the role of State and local
government in homeland security (December 11, 2001), rail
safety (December 13, 2001), and public health preparedness
(April 18, 2001).
September 21, 2001 hearing
On September 21, 2001, the committee held a hearing
entitled, ``Responding to Homeland Threats: Is Our Government
Organized for the Challenge?'' Witnesses included former
Senators Gary Hart and Warren Rudman, co-chairs of the United
States Commission on National Security/21st Century (commonly
referred to as the Hart-Rudman Commission); then Governor James
S. Gilmore, III of Virginia, chairman of the Advisory Panel to
Assess Domestic Response Capabilities for Terrorism Involving
Weapons of Mass Destruction (commonly referred to as the
Gilmore Commission); L. Paul Bremer, III, former Ambassador-at-
Large for Counter-Terrorism and a member of the Advisory Panel
to Assess Domestic Response Capabilities for Terrorism
Involving Weapons of Mass Destruction; and David M. Walker,
Comptroller General United States General Accounting Office.
Senators Hart and Rudman testified concerning the findings
and recommendations of their commission regarding governmental
organization. The Hart-Rudman Commission proposed the
establishment of a National Homeland Security Agency, an
independent agency whose director would be a member of the
President's cabinet. It would be responsible for coordinating
an array of federal activities related to homeland security,
including the Federal Emergency Management Agency, the Coast
Guard, the Customs Service, the Border Patrol, and other
entities which would be transferred to the new organization. It
would be functionally organized around prevention, protection
of critical infrastructure, and emergency preparedness and
response.
Senator Rudman testified that the Hart-Rudman Commission,
which included seven Democrats and seven Republicans who worked
for more than three years, unanimously concluded that the
single most important issue facing America was how to deal with
domestic terrorism:
We reached consensus that an attack on the domestic
homeland was not a question of if, but a question of
when. And we reached consensus that the nation was and
is largely unprepared to respond here at home to such
an attack * * * We proposed and still believe that any
solution to this problem must address issues of
strategy. It must address issues of federal, state and
local organization and cooperation. And it must address
issues of capacity and cooperation. In general, we said
that the United States must replace a fractured, ad hoc
approach to homeland security with a sustained, focused
approach, emphasized integration of existing agencies
and departments rather than wholesale invention, and
recapitalize our existing assets and capabilities
rather than try to create redundancy.\24\
---------------------------------------------------------------------------
\24\ Senator Warren Rudman, testimony, Governmental Affairs
Committee, September 21, 2001, at 7. (S. Hrg. 107-207) (Hereinafter
``Rudman testimony.'')
Senator Rudman called on the President and Congress to
create a new national homeland security agency along the
outlines of the recommendations in the Hart-Rudman report. He
testified that transferring of Coast Guard, Customs, and other
entities into the new agency would be for ``common purpose
coordination, not bureaucratic consolidation'' and ``each of
these entities would retain their own distinct identities,
structures and internal operating procedures.'' \25\
---------------------------------------------------------------------------
\25\ Rudman testimony at 7.
---------------------------------------------------------------------------
Senator Gary Hart contrasted the commission's
recommendations with the coordinator position created by
President Bush and filled by Governor Ridge: ``If a White House
office has authority to coordinate, the agencies that it has
authority to coordinate aren't necessarily accountable to that
office. They are accountable to their department head, cabinet
secretary, or whatever.'' \26\ Hart said it was unrealistic to
think a White House coordinator could effectively manage the
``almost hopeless dispersal'' of authority on homeland security
matters among 40 or 50 different agencies.\27\
---------------------------------------------------------------------------
\26\ Senator Gary Hart, testimony, Governmental Affairs Committee,
September 21, 2001, at 28. (S. Hrg. 107-207) (Hereinafter ``Hart
testimony.'')
\27\ Hart testimony at 11.
---------------------------------------------------------------------------
Senator Hart further explained the Commission's rationale
for moving specific agencies into the new homeland security
agency:
The reason why I stressed, frankly, this problem with
bureaucracy is that those agencies had a different
mission. I mean, they're where they are for a different
purpose. Border Patrol is in Justice because it's a law
enforcement agency, to try to prevent people from
illegally entering the country. Customs is in Treasury
because its purpose originally was to collect revenues.
The Coast Guard regulates incoming and outgoing
seaborne traffic, makes rescues and so on, but it--that
historic function was a transportation function. Now
these are front line defense organizations. It frankly
makes little sense for them to be where they are, given
their new responsibility. If we are in fact in war, and
I believe we are, in a prolonged war, the nature and
function of these agencies has changed. So the reason
why they are where they are, frankly, makes little
sense any more. And to protect that bureaucratic turf,
as I've indicated, under these circumstances, is
folly.\28\
---------------------------------------------------------------------------
\28\ Hart testimony at 22.
Governor Gilmore presented his Commission's proposal to
create, by statute, a new national office for combating
terrorism. This office, to be located in the White House, would
coordinate national terrorism policy and preparedness in the
executive branch. Governor Gilmore said it would be impossible
to place all of the agencies important to homeland security in
one agency, and instead stated that, ``the emphasis needs to be
on coordination of all agencies as needed, as planned, as part
of an overall national strategy.'' \29\ He also cited the
danger that a new agency would be viewed as competing with
others and warned of the potential for turf battles.
---------------------------------------------------------------------------
\29\ Governor James Gilmore, testimony, Governmental Affairs
Committee, September 21, 2001 at 29. (S. Hrg. 107-207)
---------------------------------------------------------------------------
Ambassador Bremer cited what he called four ``necessary
attributes'' for the new office, whether it took the form of a
new cabinet department as recommended by Hart-Rudman, or the
White House office established by the President: (1) in order
to have political accountability, the head of the office should
be appointed by the President and confirmed by the Senate; (2)
the office should be at the cabinet level, to ensure the
necessary access and visibility; (3) it should have budgetary
authority and the ability to design a national strategy and
certify that agencies budget requests are in compliance with
it; and (4) finally the office should have a degree of autonomy
and neutrality, to insulate it from bureaucratic in-fighting.
The final witness, Comptroller General David Walker,
testified that the large number of organizations involved in
homeland security need to have clearly articulated roles,
responsibilities, and accountability mechanisms. Walker
stressed the need for coordination not just at the Federal
level, but also with State and local government, and with the
not-for-profit and private sector, since much of the critical
infrastructure at risk is in private hands.
Walker also testified that the recommendations of the two
panels are not mutually exclusive. Walker said some agencies
have evolved such that they no longer fit well in their home
agencies and might benefit from consolidation with other
agencies with key homeland security missions. But Walker said
such a department would never include all relevant agencies, so
that there would still be a need for an overall coordinator.
October 12, 2001 hearing
On October 12, 2001, the committee held a second hearing on
``Legislative Options to Strengthen Homeland Defense.'' The
hearing focused on two proposals: S. 1534, sponsored by Sen.
Lieberman and Sen. Specter, to create a Department of National
Homeland Security, and S.1449, sponsored by Sen. Graham, to
establish a National Office for Combating Terrorism in the
White House.
Eleven witnesses appeared at this hearing, including the
major sponsors of bills designed to improve the way government
is organized for homeland defense. The bipartisan group of
member witnesses included: Senator Bob Graham of Florida,
Senator Bob Smith of NewHampshire; Senator Arlen Specter of
Pennsylvania, Congressman Wayne T. Gilchrest of Maryland, Congresswoman
Jane Harman of California, and Congressman William ``Mac'' Thornberry
of Texas. These member witnesses all agreed that significant change is
necessary to overcome endemic turf battles and improve coordination and
cooperation across government in the effort to combat terrorism. They
also generally agreed that newly appointed Homeland Security Director
Tom Ridge did not have sufficient authority to get the job done.
The non-member witnesses were: former U.S. Representative
Lee Hamilton, who is now Director of the Woodrow Wilson
International Center for Scholars and who served on the Hart-
Rudman Commission; General Barry McCaffrey, formerly the head
of the Office of National Drug Control Policy; General Charles
Boyd of the Council on Foreign Relations and the Executive
Director of the Hart-Rudman Commission; Stephen Flynn, Senior
Fellow with the Council on Foreign Relations, and Thomas
Stanton of the National Academy of Public Administration.
Congressman Hamilton testified that terrorism is the number
one threat to the national security of the United States, and
this has profound implications for how the government should be
organized and how governmental resources should be allocated.
Congressman Hamilton expressed concern that Gov. Ridge did not
have sufficient authority to succeed. He testified that access
to the President would not be enough, and ``that position is
too important to depend upon a personal relationship with the
President.'' \30\
---------------------------------------------------------------------------
\30\ Lee Hamilton, testimony, Governmental Affairs Committee,
October 12, 2001, at 23. (S. Hrg. 107-212)
---------------------------------------------------------------------------
General McCaffrey applauded the appointment of Governor
Ridge as well. However, he described several shortcomings with
the position:
* * * [I]f you skim-read the Presidential order that
set up his effort, there is no mention of the Armed
Forces. There is no adviser from the Chairman of the
Joint Staff or the Armed Forces on this council. It is
a coordinating, not a directing, authority. It does not
mention missile defense, cyber warfare, counter-drug,
economic warfare, information warfare, civil
disturbances, national disasters, or any other aspect
except a narrow definition of counterterrorism. There
is no mention of coordination with Canada and Mexico in
hemispheric security arrangements. He lacks budgetary
authority. There will be no unity of effort in
supporting exercises, training and directing the
responsible use of monies in the current bureaucratic
format. More importantly * * * what it lacks is the
force of law. We do not have power in the Federal
government unless you are established by legal statute
* * * In sum, I would argue that notwithstanding this
man's superb credentials, clear access to the cabinet
and to the senior leadership of Congress, within one
year, with a small staff of detailees, with no Federal
legislation, with no separate budget, no budget
certification, he will be relegated to running the
Speaker's Bureau on Counterterrorism Operations. I
would argue that would not be what either the Congress
or the President wants.\31\
---------------------------------------------------------------------------
\31\ General Barry McCaffrey, testimony, Governmental Affairs
Committee, October 12, 2001, at 25. (S. Hrg. 107-212) (Hereinafter
``McCaffrey testimony.'')
General Boyd expressed support for melding the two
approaches represented by the Sen. Graham's proposed
legislation and the Lieberman-Specter bill. Boyd said a White
House office could provide strategic integration that would
complement the operational consolidation of the new homeland
department.
Dr. Stephen Flynn testified that porous border management
has left the U.S. economy tremendously vulnerable to disruption
by terrorism. Dr. Flynn testified that at any given time there
are thousands of 40 foot, multi-ton containers moving around
the country, yet U.S. authorities have no idea what they hold
and know little about where they are from or where they are
going. A dangerous shipment could shut down a port and disrupt
commerce for weeks, he warned. The Canadian border is another
example. Flynn said that even though Canadian security and
intelligence services believe there may be as many as 50
terrorist groups with a foothold in Canada, the vast land and
water border with Canada was patrolled by only 330 Border
Patrol agents, supported by one analyst, and equipped with
radios cannot communicate with local and State police
authorities. Flynn testified that while trade with Canada has
climbed fourfold since 1985, the U.S. Customs Service has 700
inspectors assigned to the northern border, 200 fewer than 20
years ago. He added, ``routinely one-half of all the primary
inspection stations along the norther border, from Washington
to Maine, have no personnel assigned to those stations because
of staff shortfalls from INS and from Customs.\32\
---------------------------------------------------------------------------
\32\ Dr. Stephen Flynn, testimony, Governmental Affairs Committee,
October 12, 2001, at 30. (S. Hrg. 107-212) (Hereinafter ``Flynn
testimony.'')
---------------------------------------------------------------------------
Flynn said consolidating the key border agencies would help
identify security risks. He cited the example of a ship with
potentially dangerous cargo or crew, scheduled to arrive on the
same day and in the same port as a tanker with highly volatile
fuel: the Coast Guard would have some information about the
hazardous cargo arriving, Customs Service would receive some
advance notice of cargo manifest information, the INS may or
may not know much about the crew, depending upon the kind of
visas the sailors hold, and none of these front-line agencies
would likely have access to national security intelligence from
the FBI or the CIA.\33\ Significantly, no single agency would
have all of the information simultaneously. Also, none of the
agencies will have sufficient manpower and resources to
intercept and inspect all of the people, cargo and ships that
spark their interest as potential security concerns.
---------------------------------------------------------------------------
\33\ Flynn testimony at 30.
---------------------------------------------------------------------------
General McCaffrey reinforced Dr. Flynn's assessment of the
borders:
We do not have the rule of law and order on the U.S.
borders. It is fundamentally broken. If you put your
finger on a map anywhere on that border and ask who is
in charge of this effort, there is no Federal officer
who is charged with integratinginfrastructure,
intelligence, communication and planning. There is no modality to
coordinate across that border. If you ask sector commanders, ``who is
your Mexican counterpart? What is the fax number? What is the telephone
number? When did you see him last? Show me the map that shows the other
side of the border, the avenues of approach, none of it exists. It is
outrageous.'' \34\
---------------------------------------------------------------------------
\34\ McAffrey testimony at 37.
Thomas H. Stanton, Chair of the Standing Panel on Executive
Organization and Management of the National Academy of Public
Administration (NAPA), agreed with the other witnesses that the
President's appointment of Governor Ridge was a much needed
first step, and he indicated his support for legislation along
the lines of S. 1449 to strengthen the authority of the
director of the office. Stanton cautioned against having a
single person serve as both the coordinator and also the head
of a cabinet department, saying such a dual role would
inevitably give rise to perceptions of favoring their own
department at the expense of others. Stanton said that complex
issues around creation of a Department need to be carefully
assessed before Congress acts--especially the concern that the
many non-homeland security functions of these agencies not be
diminished. If Congress does reorganize in this area, Stanton
said it might be beneficial to use the Reorganization Act, as
Senator Thompson suggested, so that the President could make
the careful considerations and trade-offs necessary to maximize
the benefits of a given reorganization and minimize the costs.
Commander Flynn responded to Stanton's concern about the
non-homeland security functions of critical agencies. He
contends that these non-security functions are precisely what
will enable border management agencies to combat terrorism
because as government personnel conduct normal activities, such
as the Coast Guard patrolling fishing waters, they can spot
``aberrant behavior'' that may signal terrorist activity.
``They are given the mission that while you are out there doing
your job, you are also on the lookout for bad things happening
and detecting and intercepting them. You get the best of all
worlds in my view. It is not an either/or.'' \35\
---------------------------------------------------------------------------
\35\ Flynn testimony at 39.
---------------------------------------------------------------------------
April 11, 2002 hearing
On April 11, 2002, the Governmental Affairs Committee held
a hearing on ``Legislation to Establish a Department of
National Homeland Security and a White House Office to Combat
Terrorism.'' This hearing focused primarily on a draft proposal
by Senators Lieberman, Graham, and Specter, subsequently
introduced in the Senate, with some modifications, as S. 2452.
Witnesses included key Senate and House sponsors of the
draft legislation: Senator Arlen Specter and Senator Bob
Graham, as well as Congresswoman Jane Harman, Congresswoman
Ellen Tauscher, and Congressman William ``Mac'' Thornberry.
These members testified that Ridge did not have sufficient
authority to be effective, and the draft legislation was
necessary to create an effective governmental structure to
promote homeland security. Senator Judd Gregg also testified on
his legislation (S. 2020) to create a border management agency
comprised of Coast Guard, Customs, INS law enforcement, and
certain border programs related to drug interdiction and
agricultural inspection. Gregg said that because key players in
homeland security, such as the FBI, State Department, CIA and
Defense, cannot be pulled into a cabinet-level agency for
homeland security, he favored taking the lesser step of
creating an agency to improve efficiency at the borders. He
stated:
Probably no element of this entire exercise has less
effective coordination now than the management of our
borders in the area of protecting ourselves from
terrorist actions. We have seen consistently breakdowns
in the INS and the Border Patrol. We have seen
overlapping responsibility and ineffectiveness from
Customs and INS trying to work together. We know that
agencies such as the agricultural quarantine efforts
and the Coast Guard, which have huge responsibility in
this area, are not being coordinated in a systematic
manner with the other agencies, such as Border Patrol.*
* * Our management of those borders is inefficient and
the lines of authority are overlapping and
confusing.\36\
---------------------------------------------------------------------------
\36\ Senator Judd Gregg, testimony, Governmental Affairs Committee,
April 11, 2002, at 12. (S. Hrg. 107-472)
Other witnesses were: Senator Warren Rudman, co-chair of
the Hart-Rudman Commission; Comptroller General David M.
Walker; Mitchell E. Daniels, Jr., Director of the Office of
Management and Budget; Phillip Anderson, Senior Fellow and
Director of the Homeland Security Initiative for the Center for
Strategic and International Studies (CSIS); I.M. Destler of the
Center for International and Security Studies, School of Public
Affairs, University of Maryland; Stephen M. Gross, Chair of the
Border Trade Alliance; Elaine Kamarck of the John F. Kennedy
School of Government at Harvard University; and Paul C. Light,
Vice President and Director, Governmental Studies Program, of
the Brookings Institute.
Senator Rudman repeated his calls for a new department of
homeland security, and cautioned that the nation should not
focus on airport security to the exclusion of other border
security issues. He noted that while more money is being spent
on airport security, he believes that the greater threat to the
country now is posed by U.S. ports. He testified that, of the
50,000 containers coming into U.S. ports every day, less than
one-percent are inspected, creating the risk that chemical,
biological, or nuclear devices could be brought into the
country.
Elaine Kamarck of the John F. Kennedy School of Government
at Harvard strongly endorsed the proposed new Department.
Kamarck recommended adding additional functions to the proposed
department: the new Transportation Security Administration and
the consular affairs section of the State Department.
I.M. Destler of the Center for International and Security
Studies at the University of Maryland, testifying on behalf of
himself and Ivo Daalder of the Brookings Institute, also
favored reorganizing government for homeland security, though
in a more limited fashion than called for in the proposed
legislation. First, Destler favored legislation to make the
existing Homeland Security Council and Office statutory
entities with the Director confirmed by the Senate. He also
said that rather than creating a homeland security department,
Congress should create a morelimited border management agency,
including a broad range of entities currently responsible for
monitoring people and goods entering the United States.\37\
---------------------------------------------------------------------------
\37\ I.M. Destler, testimony, Governmental Affairs Committee, April
11, 2002. (S. Hrg. 107-472)
---------------------------------------------------------------------------
Paul C. Light, a governmental affairs expert at the
Brookings Institute, also testified that Ridge's position
required statutory authority, and said there was also a
compelling rationale to create a new department for homeland
security.
Stephen M. Gross, chair of the Border Trade Alliance, a
grassroots organization of individuals, entities and businesses
that conduct cross-border business founded in 1986, strongly
endorsed some of the consolidation outlined in S. 2452. Gross
said that his group has firsthand experience with Federal
agencies along the borders, including the Customs Service, INS,
and the Border Patrol. He described the problems with these
agencies:
Senators, our land border security and trade
facilitation is severely lacking. The various Federal
inspection service agencies posted along the U.S.-
Mexico and U.S.-Canada borders are charged with poorly
defined and sometimes conflicting missions. Oftentimes,
our ports of entry are home to petty squabbles over
turf and resources and fall victim to mismanagement.
The land border ports are not home to business best
practices. At each port of entry, Customs and INS
personnel are operating with different missions,
despite the fact that Customs and INS are cross-
trained in primary inspection lanes. The INS or Customs
employee at the port of entry receives incentives to
carry out the individual mission of his or her
employing agency. There is no incentive to work
together or speed legitimate trade and cargo through
our ports of entry. Despite recent talks in this post-
September 11 environment of improving lines of
communication at the highest levels in INS and Customs,
we rarely see the same spirit of cooperation employed
at the ports of entry themselves, where it is needed
most.\38\
---------------------------------------------------------------------------
\38\ Stephen Gross, testimony, Governmental Affairs Committee,
April 11, 2002, at 45. (S. Hrg. 107-472) (Hereinafter ``Gross
testimony.'')
Gross said that realignment as envisioned in the Lieberman-
Specter draft legislation would put one entity in charge of the
borders, remove a layer of bureaucracy between the ports of
entry and the coordinator of security efforts, establish
accountability for border inspection in a single agency,
eliminate overlap and duplication of efforts, prevent the
development of redundant support systems, facilitate and
streamline the processing of legitimate trade and travel, and
improve enforcement of laws at the borders. Gross said his
organization's only concern is that increased security not come
at the expense of trade facilitation. However, Gross said
security and trade could be compatible if the border functions
are properly funded. He said, ``with the proper resources, our
Federal inspection service agencies can quickly weed out those
individuals who would seek to do us harm while processing the
legitimate trade and travelers with a reduction, or at the very
least no increase, in the time the cargo or traveler has to
spent waiting at the port of entry.'' \39\ Gross also
recommended that all enforcement functions of the INS, not just
Border Patrol, be in the new Department in order to end turf
battles at the ports of entry and ensure that everyone is
committed to the same goal.
---------------------------------------------------------------------------
\39\ Gross testimony at 45.
---------------------------------------------------------------------------
Phil Anderson, senior fellow and director of the Homeland
Security Initiative at the Center for Strategic and
International Studies, testified that if enacted, the proposed
legislation would greatly simplify the management processes and
unify the efforts of 46 Federal agencies that each have some
responsibility for homeland security. He noted that effective
communication and coordination among these disparate agencies
is extremely complicated and will only get more without
organizational reforms. However, Anderson questioned the wisdom
of reorganizing before a comprehensive national strategy was
developed by the Administration.
Business meeting
On May 23, 2002, the Committee met to consider S. 2452, the
National Homeland Security and Combating Terrorism Act, and for
other purposes. The Committee adopted several amendments en
bloc, by unanimous consent:
An amendment by Senator Lieberman calling for the
Secretary to report to Congress in one year with
recommendations for other functions that might need to
be incorporated in the Department of National Homeland
Security, giving consideration to issues such as border
and transportation security;
An amendment by Senator Lieberman that requires,
within one year of the effective date of the Act, a
report from the Secretary outlining proposed steps to
consolidate management authority for federal operations
at key points of entry into the United States;
An amendment by Senator Akaka that requires the
Director of the Office of Management and Budget to
provide management guidance for federal agencies to
successfully implement and execute a homeland security
strategy. The amendment would require the GAO to submit
a report to Congress on the management guidance and the
federal agency performance in implementing and
executing the strategy;
An amendment by Senator Durbin that would create,
within the Department, the National Clearinghouse for
Emergency Preparedness, which would be a one-stop
shopping place for information. The amendment directs
the clearinghouse to establish a website, office and
staff to provide information on federal grants as well
as preparedness and awareness tools. The amendment
establishes the Emergency Preparedness Enhancement
Pilot Program, which would provide matching funds for
private businesses and organizations to design
evacuation plans and drills, better secure their
facilities, deploy innovative emergency preparedness
technologies and educate their employees and facilities
users. The amendment also would establish a National
Emergency Preparedness Week each year during the week
of Sept. 11 and require the development of a public
awareness campaign that can be implemented at the
national, state and local levels;
An amendment by Senator Levin that requires the
Director of the Federal Bureau of Investigation to work
with the National Office for Combating Terrorism to
ensure it receives ``the relevant information from the
Federal Bureau of Investigation related to terrorism
and to ensure that such information is made available
to the appropriate agencies and to state and local law
enforcement officials''; and
An amendment by Senator Levin that would require the
Secretary and the Director to develop, in consultation
with the head of each department or agency affected by
this act, definitions of the terms ``combating
terrorism'' and ``homeland security.'' The definitions
would be required to be submitted to Congress within
270 days of the date of enactment.
On that same date, the Committee ordered the bill reported
by a vote of 7-3. Senators voting in the affirmative were
Lieberman, Levin, Akaka, Durbin, Carper, Carnahan, and Dayton.
Senators voting against were Thompson, Cochran and Bennett.
Additionally several senators requested that their votes be
recorded by proxy: Senators Torricelli and Cleland voting in
favor of reporting the bill, Senators Stevens, Voinovich,
Bunning and Fitzgerald voting against.
V. Section-by-Section Analysis
Section 1--Short title; table of contents
Section 2--Defines key terms
TITLE I--DEPARTMENT OF NATIONAL HOMELAND SECURITY
Section 101--Establishment of the Department of National Homeland
Security
This section establishes the Department of National
Homeland Security. The legislation establishes the Secretary of
National Homeland Security as the head of the department, to be
appointed by the President with the advice and consent of the
Senate. It charges the Secretary with certain responsibilities.
The Secretary will:
Develop policies and plans for the United
States to promote homeland security;
Develop a comprehensive strategy to combat
terrorism in accordance with Title III of the act;
Develop processes to integrate this strategy
into the strategies and plans of Federal, State and
local departments and agencies;
Evaluate Federal programs related to
homeland security that involve activities of State and
local governments;
Advise the Director of the National Office
for Combating Terrorism on the development of an annual
federal budget for the strategy to combat terrorism,
and have responsibility for portions relating to border
security, critical infrastructure protection, emergency
preparation and response, and State and local
activities;
Plan, coordinate, and integrate federal
activities relating to border security, critical
infrastructure protection and emergency preparedness
and response, and act as the focal point regarding
natural and manmade crises and emergency planning and
response;
Work and coordinate with state and local
governments and executive agencies in providing United
States homeland security, and communicate with and
support state and local officials through the use of
regional offices around the nation;
Provide overall operational planning
guidance to executive agencies regarding United States
homeland security;
Conduct exercise and training programs for
employees of the department and other involved
agencies, and establish effective command and control
procedures for the range of potential contingencies
regarding United States homeland security, including
contingencies that require substantial support of
military assets;
Annually develop a federal response plan for
homeland security and emergency preparedness with
regard to terrorism and other manmade and natural
disasters; and
Identify and promote technological
innovation that will enhance homeland security.
This section also authorizes the Secretary to establish a
coordinating center within the department with representatives
from other federal departments and agencies with homeland
security responsibilities. Those departments and agencies will
be required to provide a representative on a permanent or part-
time basis, and the Secretary may request additional federal
personnel as well as representatives from State and local
government. This center will be run by a director who will
ensure that law enforcement, immigration and intelligence
databases related to homeland security are compatible, while
also complying with relevant Federal law related to privacy and
intelligence information.
The Secretary will be a cabinet-level official and a
statutory member of the National Security Council. This section
also establishes a Deputy Secretary of National Homeland
Security and an Inspector General for the department.
Section 102--Transfer of authorities, functions, personnel and assets
to the Department
This section transfers various authorities, functions,
personnel and assets that will be part of the Department: the
Federal Emergency Management Agency, retaining its 10 regional
offices; the United States Customs Service, which shall be
maintained as a distinct entity; the law enforcement components
of the Immigration and Naturalization Service relating to
Border Patrol, Inspections, Investigations, Intelligence,
Detention and Removal, and International Affairs; the United
States Coast Guard, which shall be maintained as a distinct
entity; the Critical Infrastructure Assurance Office of the
Department of Commerce; the National Infrastructure Protection
Center and the National Domestic Preparedness Office of the
Federal Bureau of Investigation; the portion of the Animal and
Plant Health Inspection Service of the Department of
Agriculture that administers laws relating to agricultural
quarantine inspections at points of entry.
Section 103--Establishment of directorates and office
This section establishes three directorates within the
Department.
The Directorate of Border and Transportation
Protection will oversee and coordinateUnited States border
security activities, develop border and maritime security policy, and
develop and implement international standards for enhanced security in
transportation nodes.
The Directorate of Critical Infrastructure
Protection will: (1) act as the Critical Infrastructure
Technology, Assurance, and Security Officer of the Department
to address the nation's vulnerability to electronic or physical
attacks on critical infrastructure such as utilities and
transportation nodes; (2) oversee protection of critical
infrastructure; (3) ensure there are cybersecurity experts
within the Federal government; (4) enhance information- sharing
regarding cybersecurity and physical security, propose risk
management policies and clarify the respective roles of various
government agencies; (5) coordinate cybersecurity policy issues
with the Federal Communications Commission; (6) coordinate the
activities of Information Sharing and Analysis Centers; (7)
assume responsibilities of the Critical Infrastructure
Assurance Office; (8) assume the responsibilities of the
National Infrastructure Protection Center.
The Directorate for Emergency Preparedness and
Response will: (1) carry out all emergency preparedness and
response activities carried out by the Federal Emergency
Management Agency; (2) assume the responsibilities of the
National Domestic Preparedness Office; (3) organize and train
local authorities to respond to emergencies and provide them
with equipment for detection, protection and decontamination in
an emergency involving weapons of mass destruction; (4) oversee
Federal, State and local emergency preparedness training and
exercise programs and provide Federal assistance for any
emergency, natural or man-made; (5) create a national Crisis
Action Center to serve as the focal point for monitoring
emergencies and coordinating Federal support for State and
local government and the private sector during crises; (6)
establish training and equipment standards, provide resource
grants, and encourage intelligence and information sharing
among federal agencies, state emergency management officials,
and local first responders; (7) coordinate and integrate
operational activities of the Department of Defense, the
National Guard, and other federal agencies into a federal
response plan; (8) coordinate private sector activities with
respect to recovery, consequence management, and planning for
continuity of services; (9) develop and manage a single
response system for national incidents in coordination with the
Department of Justice, Federal Bureau of Investigation,
Department of Health and Human Services, the Centers for
Disease Control, and other appropriate federal departments
agencies; (10) maintain federal asset databases and support up-
to-date state and local databases.
This section also creates an Office of Science and
Technology within the Department to advise the Secretary
regarding research and development efforts and priorities for
the directorates.
Section 104--Steering group, coordination committee, and acceleration
fund
This section establishes a fund to leverage existing
research and development and accelerate the deployment of
technologies that will serve to enhance homeland security;
establishes a committee and steering group to help coordinate
and advise on issues relating to homeland security research and
development and to administer acceleration fund; and
establishes the responsibilities of the Director of the Office
of Science and Technology relating to homeland security
research and development. Specifically:
Fund--The bill establishes acceleration funding
for research and development of homeland security technologies
to accelerate research, development, testing and evaluation of
critical homeland security technologies and support homeland
security research and development. It authorizes $200 million
in fiscal year 2003 for the fund.
Steering group--The bill establishes a steering
group within the Office of Science and Technology to provide
recommendations to the Director and assist the Director in
establishing priorities and forwarding recommendations on
homeland security technology to the Secretary. The steering
group will be composed of senior research and development
officials from all appropriate federal departments agencies, as
determined by the Director. At the discretion of the Director,
the steering group may be composed of subgroups specializing in
specific homeland security areas such as information technology
infrastructure, critical infrastructure, interoperability
issues in communications technology, bioterrorism, or chemical,
biological, and radiological defense.
Coordination committee--The bill establishes a
Homeland Security Science and Technology Coordination Committee
within the Office of Science and Technology, to be chaired by
the Director. The coordination committee will be a working
level group composed of representatives managing relevant
agency research and development portfolios. The coordination
committee will facilitate effective communication among
departments, agencies and other entities of the federal
government with respect to research and development related to
homeland security. The committee will identify specific
technology areas for which the fund will be used to rapidly
transition homeland security research and development into
deployed technologies. The focus will be research and
development projects that address identified homeland security
vulnerabilities and which, assuming single year funding, can be
accelerated to the stage of prototyping, evaluating,
transitioning, or deploying. The committee will administer the
fund, including soliciting proposals from governmental
entities, industry, and academia; competitively selecting
proposals that advance the state of deployed technologies in
the areas identified for that year; assigning one or more
program managers to oversee, administer and execute a fund
project as the agent of the coordination committee; and
providing methods of funding administration, including grant,
cooperative agreement, or any other transaction.
Office of Science and Technology
responsibilities--This subsection outlines key duties of the
Director of the Office of Science and Technology. The Director
will assist the Secretary and other federal officials: assess
and test homeland security vulnerabilities; evaluate and advise
on maintaining talent resources in key technology and skill
areas necessary for homeland security; develop a system to
share key research and technology developments and
opportunities among appropriate Federal, State, local and
private sector entities; and propose risk management strategies
based on technology developments. The Director will also
develop and oversee periodic homeland securitytechnology
demonstrations to improve contact between technology developers,
vendors and acquisition personnel.
Section 105--Reporting requirements
This section establishes various reporting requirements for
the Secretary. Every two years, the Secretary shall submit to
Congress a report assessing the resources and requirements
regarding border security and emergency preparedness issues,
and certifying the preparedness of the Untied States to respond
to various natural and man-made crises. Within one year of the
effective date, the Secretary shall submit a report assessing
progress in implementing Title I and recommending any
conforming changes in law that are necessary.
Also within one year, the Secretary shall report to
Congress recommending additional functions or elements that
need to be incorporated in the Department, including such areas
as border and transportation security. This section also
requires the Secretary to submit to Congress, within one year,
a report outlining proposals to consolidate management
authority for Federal operations at key points of entry into
the United States. Additionally, the Secretary and Director are
required to consult with affected departments and agencies to
develop definitions for ``combating terrorism'' and ``homeland
security'' for purposes of this Act, and submit a report to
Congress on these definitions within 270 days.
Section 106--Planning, programming and budgeting process
This section directs the Secretary to establish sound
planning, programming, budgeting and financial activities by
the Department.
Section 107--Environmental protection, safety and health requirements
This section requires that the Department comply with
applicable environmental, safety and health statutes and
requirements.
Section 108--Savings provisions
This section provides for the continuing effect of legal
documents, arrangements and proceedings for functions that are
transferred to the department of national homeland security. It
provides interim authority for compensation and expenses of any
officer or employee under this title until such time as funds
for that purpose are otherwise available. The provision also
provides for the continuing effect of certain civil service
protections under 5 U.S.C. title 71 (federal service labor-
management relations statute) for employees or offices
transferred to the new department, and specifies that offices
of, and employees transferred to, the department may be
excluded from these provisions in the interest of national
security only in certain instances where primary job duties are
directly related to terrorism investigations. This section also
specifies that the transfer of authorities, functions,
personnel and assets to the new Department shall not be
construed to affect the authorities of the Director of Central
Intelligence, the Secretary of Defense, or the heads of
departments and agencies within the intelligence community
where those authorities, functions, personnel or assets are
engaged in intelligence activities as defined in the National
Security Act of 1947.
TITLE II--NATIONAL OFFICE FOR COMBATING TERRORISM
Section 201--National Office for Combating Terrorism
This section establishes a terrorism office within the
Executive Office of the President, to be run by a Director who
will be appointed by the President with advice and consent of
the Senate. The responsibilities of the Director will include:
(1) develop national objectives and policies for
combating terrorism;
(2) direct and review the development of a
comprehensive national assessment of terrorist threats
and vulnerabilities to those threats, to be conducted
by heads of the relevant Federal agencies;
(3) develop, with the Secretary of National Homeland
Security, a national strategy for combating terrorism
under Title III;
(4) coordinate, oversee and evaluate implementation
and execution of the Strategy;
(5) coordinate the development of a comprehensive
annual budget for programs and activities under the
Strategy;
(6) exercise budget certification authority for
Federal terrorism prevention response agencies in
accordance with section 202;
(7) serve as an adviser to the National Security
Council; and
(8) work with the Director of the Federal Bureau of
Investigation to ensure that the Director receives
relevant information related to terrorism from the FBI,
and that such information is made available to
appropriate Federal agencies and State and local law
enforcement officials.
Section 202--Funding for strategy programs and activities
This section establishes a process for the Director to
review the proposed budgets for federal programs under the
Strategy. The Director will, in consultation with the Director
of the Office of Management and Budget and the Secretary of
National Homeland Security, identify programs that contribute
to the Strategy, and provide advice to the heads of the
executive departments and agencies on the amount and use of
these programs through budget certification procedures and the
development of a consolidated budget for the Strategy.
Specifically, the heads of these departments and agencies
must submit their terrorism-related budget to the Director
before they are submitted to the Office of Management and
Budget. The Director will review each proposed budget and
notify the head of the agency if it is adequate to permit
implementation of the goals of the Strategy for that year. If
the Director finds the proposed budget inadequate, the Director
will provide a statement of the funding and any initiatives
that would be adequate to achieve the goals of the Strategy. An
agency head that receives such notice shall incorporate the
proposed funding, and any initiatives, in its submissions to
the Office of Management and Budget. The agency head will also
submit a summary of modifications pursuant to the Director's
certification process and an assessment of the effect of such
changes on the agency's capacity to perform its non-terrorism
related responsibilities. The Director will review the budget
submissions to OMB and may decertify any proposals that do not
incorporate the proposed funding or initiatives previously
advised by the National Office on Combating Terrorism. The
Director will provide Congress with notice of any such
decertification.
Each year, the Director will, in consultation with the
Secretary of National Homeland Security and the head of each
Federal terrorism prevention and response agency, develop a
consolidated proposed budget for all programs and activities
under the Strategy for that fiscal year.
TITLE III--NATIONAL STRATEGY FOR COMBATING TERRORISM AND THE HOMELAND
SECURITY RESPONSE
Section 301--Strategy
This section directs the Secretary and Director to develop
the national strategy for combating terrorism and homeland
security response for the detection, prevention, protection,
response and recovery necessary to counter terrorist threats.
The Secretary has responsibility for portions of the Strategy
addressing border security, critical infrastructure protection,
emergency preparation and response, and integrating state and
local efforts with activities of the Federal government. The
Director has overall responsibility for the development of the
Strategy, and particularly for those portions addressing
intelligence, military assets, law enforcement and diplomacy.
The Strategy will include: (1) policies and procedures to
maximize the collection, translation, analysis, exploitation
and dissemination of information related to combating terrorism
and homeland security response throughout the Federal
government and with State and local authorities; (2) plans for
countering chemical, biological, radiological, nuclear and
explosives, and cyber threats; (3) plans for improving the
resources of, coordination among, and effectiveness of health
and medical sectors for detecting and responding to terrorist
attacks on homeland; (4) specific measures to enhance
cooperative efforts between the public and private sectors in
protecting against terrorist attacks; (5) review of measures
needed to enhance transportation security with respect to
potential terrorist attacks; and (6) other critical areas.
This section also establishes the National Combating
Terrorism and Homeland Security Response Council to assist with
preparation and implementation of the Strategy. Members of the
Council will be the heads of federal terrorism prevention and
response agencies or their designees. The Secretary and
Director will co-chair the Council, which will meet at their
direction.
Section 302--Management guidance for strategy implementation
This section directs the Office of Management and Budget,
in consultation with the Secretary and the Director, to provide
management guidance for Federal agencies to successfully
implement the Strategy, and to report to Congress on these
efforts. It also requires the General Accounting Office to
evaluate the management guidance and agency performance in
implementing the Strategy.
Section 303--National Combating Terrorism Strategy Panel
This section establishes a nonpartisan, independent panel
to conduct an assessment of strategy as well as an independent,
alternative assessment of measures required to combat
terrorism, including homeland security measures. The panel will
prepare a preliminary report no later than July 1, 2004, with a
final report by December 1, 2004 and every four years
thereafter.
TITLE IV--NATIONAL EMERGENCY PREPAREDNESS ENHANCEMENT
Section 401--Short title
Section 402--Preparedness information and education
This section establishes a National Clearinghouse on
Emergency Preparedness within the Department to provide a
central resource for information about grants and other
resources on emergency preparedness. The clearinghouse would
also develop a public awareness campaign on emergency
preparedness.
Section 403--Pilot program
This section would create a pilot program to support
private sector preparedness initiatives, such as developing
evacuation plans and drills, improving security measures and
preparedness technologies, and educating employees and
customers. The bill authorizes $5 million annually in fiscal
years 2003 through 2005 for these cost share grants.
Section 404--Designation of National Emergency Preparedness Week
This section establishes each week that includes September
11 as ``National Emergency Preparedness Week'' and requests the
President to designate it as such. In conjunction with this
week, Federal agency heads shall coordinate with the Department
to conduct educational activities for the private sector and
general public about emergency preparedness resources.
TITLE V--EFFECTIVE DATE
Section 501--Effective date
This section specifies that the Act shall take effect 180
days after the date of enactment.
VI. Regulatory Impact
Paragraph 11(b)(1) of the Standing Rules of the Senate
requires that each report accompanying a bill evaluate ``the
regulatory impact which would be incurred in carrying out this
bill.''
The enactment of this legislation will not have significant
regulatory impact.
VII. CBO Cost Estimate
U.S. Congress,
Congressional Budget Office,
Washington, DC, June 17, 2002.
Hon. Joseph I. Lieberman,
Chairman, Committee on Governmental Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 2452, the National
Homeland Security and Combating Terrorism Act of 2002.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Barry B. Anderson
(For Dan L. Crippen, Director).
Enclosure.
S. 2452--National Homeland Security and Combating Terrorism Act of 2002
Summary: S. 2452 would establish a new cabinet department,
the Department of National Homeland Security, to plan,
coordinate, and integrate the government's activities relating
to homeland security, including border security, the protection
of critical infrastructure, and emergency preparedness. The
legislation would combine several existing agencies to form the
new department. S. 2452 also would establish a National Office
for Combating Terrorism within the Executive Office of the
President to coordinate threat assessments, to craft and
oversee a National Strategy to Combat Terrorism, and to plan
and coordinate the budget to combat terrorism. Finally, the
legislation would authorize the appropriation of $200 million
for fiscal year 2003 to develop technology to combat terrorism
and $5 million annually over the 2003-2005 period for emergency
preparedness pilot programs.
CBO estimates that implementing S. 2452 would cost about
$1.1 billion over the 2003-2007 period, assuming appropriation
of the necessary amounts. Enacting S. 2452 would not affect
direct spending or receipts, so pay-as-you-go procedures would
not apply. S. 2452 contains no intergovernmental or private-
sector mandates as defined in the Unfunded Mandates Reform Act
(UMRA) and would not affect the budgets of state, local, or
tribal governments.
Estimated cost to the Federal Government: The following
table summarizes the estimated budgetary impact of S. 2452. The
table shows estimated costs under the bill, as compared to the
funding for the affected agencies under current law projected
in the CBO baseline--that is, the 2002 appropriation adjusted
for anticipated inflation in succeeding years. The legislation
would combine several existing agencies to form the new
department, including:
The Federal Emergency Management Agency
(FEMA);
The U.S. Customs Service;
The U.S. Coast Guard;
The Department of Commerce's Critical
Infrastructure Assurance Office;
The Federal Bureau of Investigations's
National Infrastructure Protection Center and National
Preparedness Office;
The Immigration and Naturalization Service's
Border Patrol and other enforcement activities; and
The border offices of the Department of
Agriculture's Animal, Plant and Health Inspection
Service.
The table also shows, as a memorandum item, estimated
direct spending by the new agency over the 2002-2007 period,
which would not be affected by the bill. The costs of this
legislation fall within budget functions 050 (national
defense), 350 (agriculture), 370 (commerce and housing credit),
450 (community and regional development), 750 (administration
of justice), and 800 (general government).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-----------------------------------------------------------
2002 2003 2004 2005 2006 2007
----------------------------------------------------------------------------------------------------------------
SPENDING SUBJECT TO APPROPRIATION
Spending by affected agencies under current law:
Estimated authorization level \1\............... 19,427 20,003 20,534 21,076 21,625 22,200
Estimated outlays............................... 16,279 17,163 17,943 19,485 20,671 21,652
Proposed changes:
New Personnel, offices, and programs:
Estimated authorization level............... 0 79 204 208 212 216
Estimated outlays........................... 0 68 185 207 211 215
Acceleration fund:
Authorization level......................... 0 200 0 0 0 0
Estimated outlays........................... 0 120 60 20 0 0
Emergency preparedness pilot program:
Authorization level......................... 0 5 5 5 0 0
Estimated outlays........................... 0 5 5 5 0 0
Total:
Estimated authorization level............... 0 284 209 213 212 216
Estimated outlays........................... 0 193 250 232 211 215
Spending under S. 2452:
Estimated authorization level................... 19,427 10,287 20,743 21,289 21,837 22,416
Estimated outlays............................... 16,279 17,356 18,193 19,717 20,882 21,867
MEMORANDUM
Direct spending by affected agencies under current
law and under S. 2452 \2\
Estimated budget authority...................... 416 509 1,731 1,878 1,945 2,130
Estimated outlays............................... 305 437 1,692 1,800 1,853 1,912
----------------------------------------------------------------------------------------------------------------
\1\ The 2002 level is the amount appropriated for that year for agencies that would be combined to form the
Department of National Homeland Security, as well as the National Office for Combining Terrorism. The
estimated authorization levels for 2003 through 2007 are CBO baseline estimates that adjust the amounts
appropriated for 2002 for anticipated inflation.
\2\ CBO estimates that the level of direct spending of agencies that would be combined to form the new
department would not be changed by enacting S. 2452.
Basis of estimate
CBO estimates that implementing the legislation would add
about $1.1 billion to the costs of the affected agencies over
the 2003-2007 period. For this estimate, CBO assumes that S.
2452 will be enacted by the beginning of fiscal year 2003 and
that the necessary funds will be appropriated for each fiscal
year.
New personnel, offices, and programs
S. 2452 would establish a new cabinet agency, the
Department of National Homeland Security, and the National
Office for Combating Terrorism within the Executive Office of
the President. Most of the functions that would be performed by
the proposed department are already performed by existing
offices within the agencies that would be incorporated into the
Department of National Homeland Security. CBO expects that,
under S. 2452, most activities would be transferred to the new
department without significantly affecting the costs that would
be expected under current law.
CBO expects that creating a new cabinet-level department
would require additional resources to perform certain
administrative functions, including new positions to staff the
offices of the Inspector General, general counsel, budget, the
Congressional affairs for the new department. Based on the
administrative costs the Department of Justice and
otherdepartments, CBO estimates that it would cost about $200 million
annually to provide the centralized leadership, coordination, and
support services for the Department of National Homeland Security. This
represents about 1 percent of the new department's budget. Personnel
and budgets to help perform these functions also would be transferred
to the new department from FEMA, the Coast Guard, and the Customs
Service. We expect the new departmental staff would be hired over the
first two years following enactment of the legislation. This estimate
assumes that the 6,500 employees currently working in the Washington,
D.C. area for the agencies that would be combined to form the new
department are not relocated to a central location.
S. 2452 also would authorize committees, councils, and
panels to support and advise the President, the Department of
National Homeland Security, and the National Office for
Combating Terrorism. The legislation also would authorize the
establishment of offices to coordinate and disseminate
information related to homeland security. CBO estimates that
those functions would require approximately 30 new positions at
a cost of about $4 million annually.
In addition, the bill would establish a National Office for
Combating Terrorism within the Executive Office of the
President. The new office would be similar, but not identical
to the current Office of Homeland Security. For this estimate,
CBO assumes the new office would take over the functions of the
existing Office of Homeland Security and that the costs of this
office would be similar to those that would be incurred under
current law. Based on the costs of the current Office of
Homeland Security, CBO estimates that the new office would cost
approximately $27 million annually, though that sum is not
included as an added cost of S. 2452.
Acceleration fund
S. 2452 would authorize the appropriation of $200 million
in fiscal year 2003 to accelerate research, development, and
testing of technologies to enhance homeland security. CBO
estimates that implementing this provision would cost $200
million over the 2003-2005 period.
Pilot program
S. 2452 would authorize the appropriation of $5 million
annually over the 2003-2005 period for a National Clearinghouse
on Emergency Preparedness in the Department for National
Homeland Security. The clearinghouse would award grants to
private entities to pay for the federal share of the cost of
improving emergency preparedness. Grants would be awarded
awareness campaigns. CBO estimates that implementing this
section would increase discretionary spending by $5 million
annually over the 2003-2005 period, assuming appropriation of
the authorized amounts.
Pay-as-you-go considerations: The Balanced Budget and
Emergency Deficit Control Act sets up pay-as-you-go procedures
for legislation affecting direct spending or receipts. Although
the legislation would affect programs involving direct
spending, such as the Immigration and Naturalization Service's
immigration fees, the U.S. Coast Guard's boat safety grants,
and the Animal and Plant Health Inspection service's animal
quarantine inspection fees, CBO estimates that enacting S. 2452
would have no effect on direct spending or receipts because the
legislation would not change any of those programs.
Intergovernmental and private-sector impact: The bill
contains no intergovernmental or private-secto mandates as
defined in UMRA and would not affect the budgets of state,
local, or tribal governments.
Estimate prepared by: Federal costs: Matthew Pickford and
Mark Grabowicz; impact on state, local, and tribal governments:
Susan Sieg Tompkins; impact on the private sector: Paige Piper/
Bach.
Estimate approved by: Robert A. Sunshine, Assistant
Director for Budget Analysis.
VIII. Additional Views
ADDITIONAL VIEWS OF SENATORS THOMPSON, VOINOVICH, AND BUNNING
On May 22, 2002, the Committee on Governmental Affairs
voted to report S. 2452, as amended. We voted against reporting
S. 2452 favorably because we had come to the conclusion, in the
absence of any proposal from the President, that a coordinator
within the White House was the best framework for organizing
our federal government's homeland security efforts. We were
concerned that no agency could bring within its purview all the
components needed to address successfully all of our homeland
security challenges. We also opposed the legislation because
President Bush had not had an opportunity to present his
proposals for reorganizing the federal government to address
the threats to our nation. Since the Committee's vote, however,
the President has now offered his own recommendations for
reorganizing the federal government to address our homeland
security needs.
Recognizing that it had taken a long time for the
government to develop along the dysfunctional lines that were
revealed on September 11, 2001, we urged that Committee to hold
off for a short while to allow the President's views to be
considered. We were particularly concerned that during a period
of stress and difficulty in responding initially to the scope
of the attacks on our nation and in developing our strategic
and tactical response, the administration could not focus
adequately on a broad government reorganization. It took some
time for the administration to begin to examine the structures
needed to tackle the threat over the long term.
In the days following September 11, it became clear that
the federal government needed to be reorganized in order to
effectively protect our country. When President Bush created
the Office of Homeland Security last fall, he instructed its
director, Governor Tom Ridge, to conduct a comprehensive review
of the federal government's efforts to protect the American
homeland. Over the last nine months, the President's Office of
Homeland Security closely examined every facet of our homeland
security effort. It considered numerous homeland security
organizational proposals that emerged from outside studies,
commissions, and Members of Congress. On several occasions
during this period, the President emphasized that the structure
for organizing and overseeing homeland security was evolving as
its analysis of the threats and the government's ability to
address them developed.
Indeed, in testimony before the Governmental Affairs
Committee on April 11, 2002, Office of Management and Budget
Director Mitchell Daniels implied that the Administration
intended to complete its review and offer recommendations for
Executive Branch reorganization in a matter of weeks. Director
Daniels testified that all options were being considered,
including the creation of a new department combining different
agencies.
While the Administration was conducting its review, the
Governmental Affairs Committee held more than a dozen hearings
on homeland security. We are confident that these hearings
contributed a great deal to the debate and the President's
consideration of the issues. During these hearings, we
expressed support for the Administration's decision to examine
closely the issues involved and carefully deliberate on an
appropriate course of action. We believed that it was important
for us to understand the issues at hand fully before beginning
the reorganization process. We also repeatedly expressed our
view that Presidential participation and leadership was
essential to any Executive Branch reorganization for passage.
Even the most modest reorganization plan would require the
Administration and the Congress to work together.
The bill reported by the Committee was a good first step.
We can, however, be certain that the President's
recommendations would have contributed to our deliberations.
For example, while there are many elements in common between
the President's proposal and S. 2452, the bill approved by the
Committee does not sweep into the new agency a number of
components that the President's proposal would incorporate into
a new Department of Homeland Security; some of these components
were not fully considered for inclusion in the new agency
before the President's plan was released.
The Committee now has an opportunity to work closely with
the Administration to craft legislation that will reorganize
the federal government to protect the American people. The
President has repeatedly expressed his willingness to work with
Congress and the Committee on his reorganization proposal. We
are confident the Committee will not move forward and work in a
constructive manner with the President and his Administration.
George V. Voinovich.
Jim Bunning.
Fred Thompson.
IX. Changes to Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
S. 2452 as reported are shown as follows (existing law proposed
to be omitted is enclosed in brackets, new matter is printed in
italic, and existing law in which no change is proposed is
shown in roman):
UNITED STATES CODE
TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES
* * * * * * *
SEC. 101. EXECUTIVE DEPARTMENTS
The Executive Departments are:
* * * * * * *
The Department of Homeland Security.
* * * * * * *
SEC. 5312. POSITIONS AT LEVEL I
Level I of the Executive Schedule applies to the following
positions for which the annual rate of basic pay shall be the
rate determined with respect to such level under chapter 11 of
title 2, as adjusted by section 5318 of this title:
* * * * * * *
Secretary of National Homeland Security.
Director of the National Office for Combating
Terrorism.
SEC. 5313. POSITIONS AT LEVEL II
Level II of the Executive Schedule applies to the following
positions, for which the annual rate of basic pay shall be the
rate determined with respect to such level under chapter 11 of
title 2, as adjusted by section 5318 of this title:
* * * * * * *
Deputy Secretary of National Homeland Security.
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TITLE 5--APPENDIX
INSPECTOR GENERAL ACT OF 1978
SEC. 11. DEFINITIONS
As used in this Act--
(1) the term ``head of the establishment: means the
Secretary of Agriculture, Commerce, Defense, Education,
Energy, Health and Human Services, Housing and Urban
Development, the Interior, Labor, National Homeland
Security, State, Transportation, or the Treasury; the
Attorney General; the Administrator of the Agency for
International Development, Environmental Protection,
General Services, National Aeronautics and Space, Small
Business, or Veterans' Affairs; the Director of the
Federal Emergency Management Agency, or the Office of
Personnel Management; the Chairman of the Nuclear
Regulatory Commission or the Railroad Retirement Board;
the Chairperson of the Thrift Depositor Protection
Oversight Board; the Chief Executive Officer of the
Corporation for National and Community Service;
(FOOTNOTE 1) the Administrator of the Community
Development Financial Institutions Fund; and (FOOTNOTE
2) the chief executive officer of the Resolution Trust
Corporation; and (FOOTNOTE 2) the Chairperson of the
Federal Deposit Insurance Corporation; the Commissioner
of Social Security, Social Security Administration; or
the Board of Directors of the Tennessee Valley
Authority; as the case may be;
(FOOTNOTE 1) So in original.
(FOOTNOTE 2) So in original. The word ``and'' probably
should not appear.
(2) the term ``establishment'' means the Department
of Agriculture, Commerce, Defense, Education, Energy,
Health and Human Services, Housing and Urban
Development, the Interior, Justice, Labor, National
Homeland Security, State, Transportation, or the
Treasury; the Agency for International Development, the
Community Development Financial Institutions Fund, the
Environmental Protection Agency, the Federal Emergency
Management Agency, the General Services Administration,
the National Aeronautics and Space Administration, the
Nuclear Regulatory Commission, the Office of Personnel
Management, the Railroad Retirement Board, the
Resolution Trust Corporation, the Federal Deposit
Insurance Corporation, the Small Business
Administration, the Corporation for National and
Community Service, or (FOOTNOTE 3) the Veterans'
Administration, the Social Security Administration, or
the Tennessee Valley Authority; as the case may be;
(FOOTNOTE 3) So in original. The word ``or'' probably
should not appear.
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TITLE 50--WAR AND NATIONAL DEFENSE
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SEC. 402. NATIONAL SECURITY COUNCIL
(a) Establishment; presiding officer; functions;
composition
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(1) * * *
(2) * * *
(3) * * *
(4) * * *
(5) [the Director for Mutual Security;] the Secretary of
National Homeland Security; and
(6) [the Chairman of the National Security Resources Board;
and] each Secretary or Under Secretary of such other executive
department, or of a military department, as the President shall
designate.
[(7) the Secretaries and Under Secretaries of other
executive departments and of the military departments, the
Chairman of the Munitions Board, when appointed by the
President by and with the advice and consent of the Senate, to
serve at his pleasure.]
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