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[Congressional Record: November 15, 2002 (Senate)]
[Page S11169-S11198]
From the Congressional Record Online via GPO Access []

                     HOMELAND SECURITY ACT OF 2002


       Thompson (for Gramm) Amendment No. 4901, in the nature of a 
       Lieberman/McCain Amendment No. 4902 (to Amendment No. 
     4901), to establish within the legislative branch the 
     National Commission on Terrorist Attacks Upon the United 
       Dodd Amendment No. 4951 (to Amendment No. 4902), to provide 
     for workforce enhancement grants to fire departments.

                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order, pursuant to rule 
XXII, the Chair lays before the Senate the pending cloture motion, 
which the clerk will report.
  The legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close debate on the substitute 
     amendment No. 4901 to H.R. 5005, the Homeland Security 
       John Breaux, Ben Nelson of Nebraska, Larry E. Craig, Jon 
     Kyl, Mike DeWine, Don Nickles, Craig Thomas, Rick Santorum, 
     Trent Lott, Fred Thompson, Phil Gramm, Pete Domenici, Richard 
     G. Lugar, Olympia J. Snowe, Mitch McConnell.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call under the rule is waived.
  The question is, Is it the sense of the Senate that debate on the 
Thompson amendment, No. 4901, for H.R. 5005, an act to establish the 
Department of Homeland Security and for other purposes, shall be 
brought to a close? The yeas and nays are required under the rule. The 
clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. REID. I announce that the Senator from Hawaii (Mr. Inouye), the 
Senator from Maine (Mr. Kennedy), the Senator from Maine (Mr. Kerry), 
and the Senator from New Jersey (Mr. Torricelli) are necessarily 
  Mr. NICKLES. I announce that the Senator from North Carolina (Mr. 
Helms) and the Senator from Colorado (Mr. Campbell) are necessarily 
  The PRESIDING OFFICER (Mr. Dayton). Are there any other Senators in 
the Chamber desiring to vote?
  The yeas and nays resulted--yeas 65, nays 29, as follows:

                      [Rollcall Vote No. 244 Leg.]


     Nelson (NE)
     Smith (NH)
     Smith (OR)


     Nelson (FL)

                             NOT VOTING--6

  The PRESIDING OFFICER. On this vote, the yeas are 65, the nays are 
29. Three-fifths of the Senators duly chosen and sworn having voted in 
the affirmative, the motion is agreed to.
  The majority leader.

                           Amendment No. 4902

  Mr. DASCHLE. Mr. President, I ask unanimous consent that the 
Lieberman amendment No. 4902 be in order.
  Mr. GRAMM. Mr. President, I object.
  The PRESIDING OFFICER. Objection is heard.
  The majority leader.
  Mr. DASCHLE. Mr. President, I very regretfully make a point of order 
that amendment No. 4902 is not germane.
  The PRESIDING OFFICER. The Chair sustains the point of order. The 
amendment falls.

                Amendment No. 4911 To Amendment No. 4901

  Mr. DASCHLE. Mr. President, I call up amendment No. 4911.
  Mr. BYRD. Mr. President, what is happening? What was the request? 
What has happened?
  Mr. DASCHLE. Mr. President, I have called up amendment No. 4911. I 
would like it read.
  The PRESIDING OFFICER. The clerk will report the amendment.
  Mr. BYRD. Mr. President, parliamentary inquiry. Parliamentary 
  The PRESIDING OFFICER. The Senator will state his inquiry.
  Mr. BYRD. Mr. President, what was the request agreed to; what 
happened? What was the decision of the Senate?
  The PRESIDING OFFICER. A unanimous consent request that the pending 
first-degree amendment be in order was objected to. Objection was 
heard. A point of order was then made against the amendment on the 
grounds that it was not germane. The Chair sustained

[[Page S11170]]

the point of order, and that amendment fell.
  Mr. BYRD. I thank the Chair. There was so much noise in the Chamber 
that many of us could not hear what was going on.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The legislative clerk read as follows:

       The Senator from South Dakota [Mr. Daschle], for Mr. 
     Lieberman, proposes an amendment numbered 4911 to amendment 
     No. 4901.

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

(Purpose: To provide that certain provisions of the Act shall not take 
                    effect, and for other purposes)

       At the end, add the following:



       (a) In General.--Notwithstanding any other provision of 
     this Act, (including any effective date provision of this 
     Act) the following provisions of this Act shall not take 
       (1) Section 308(b)(2)(B) (i) through (xiv).
       (2) Section 311(i).
       (3) Subtitle G of title VIII.
       (4) Section 871.
       (5) Section 890.
       (6) Section 1707.
       (7) Sections 1714, 1715, 1716, and 1717.
       (b) Application of Federal Advisory Committee Act.--
     Notwithstanding paragraph (2) of subsection (b) of section 
     232, any advisory group described under that paragraph shall 
     not be exempt from the provisions of the Federal Advisory 
     Committee Act (5 U.S.C. App.).
       (c) Waiver.--Notwithstanding section 835(d), the Secretary 
     shall waive subsection (a) of that section, only if the 
     Secretary determines that the waiver is required in the 
     interest of homeland security.

  Mr. DASCHLE. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  Mr. GRAMM. Mr. President, I suggest the absence of a quorum.
  Mr. DASCHLE. Mr. President, I retain the floor.
  The PRESIDING OFFICER. Is there a sufficient second?
  In the opinion of the Chair, there is not a sufficient second.
  Mr. DASCHLE. I suggest the absence of a quorum.
  The PRESIDING OFFICER. There is a sufficient second.
  The yeas and nays were ordered.

                Amendment No. 4953 to Amendment No. 4911

  Mr. DASCHLE. Mr. President, I call up amendment No. 4953.
  Mr. GRAMM. Mr. President, I suggest the absence of a quorum.
  Mr. DASCHLE. Mr. President, I hold the floor.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The legislative clerk read as follows:

       The Senator from South Dakota [Mr. Daschle], for Mr. 
     Lieberman, proposes an amendment No. 4953 to amendment No. 

  Mr. DASCHLE. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  Mr. NICKLES. I object.
  The PRESIDING OFFICER. Objection is heard.
  The clerk will continue the reading of the amendment.
  The legislative clerk continued the reading of the amendment, as 
       Strike all after the first word and insert the following:



       (a) In General.--Notwithstanding any other provision of 
     this Act, (including any effective date provision of this 
     Act) the following provisions of this Act shall not take 
       (1) Section 308(b)(2)(B) (i) through (xiv).
       (2) Section 311(i).
       (3) Subtitle G of title VIII.
       (4) Section 871.
       (5) Section 890.
       (6) Section 1707.
       (7) Sections 1714, 1715, 1716, and 1717.
       (b) Application of Federal Advisory Committee Act.--
     Notwithstanding paragraph (2) of subsection (b) of section 
     232, any advisory group described under that paragraph shall 
     not be exempt from the provisions of the Federal Advisory 
     Committee Act (5 U.S.C. App.).
       (c) Waiver.--Notwithstanding section 835(d), the Secretary 
     shall waive subsection (a) of that section, only if the 
     Secretary determines that the waiver is required in the 
     interest of homeland security.
       (d) The amendment made by subsection (a)(1) of this section 
     shall be effective one day after enactment.

  Mr. NICKLES. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. I ask unanimous consent that during the next 90 minutes--
that is until 1:30 today--there be no action, other than debate, on the 
matter now before the Senate.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  The Senator from Texas.
  Mr. GRAMM. Mr. President, I do not want to give a lengthy speech, but 
briefly I will talk about where we are and then talk about the 
amendment that is pending. We have now invoked cloture on the pending 
substitute, and so we are in a very tightly scripted 30-hour period. 
The Democrat majority leader put into place two amendments, and in the 
process no amendment now is in order. This produces a situation where 
at some point, at the end of 30 hours, there will be a vote on the 
pending Lieberman amendment.
  The pending Lieberman amendment is the amendment I will discuss. It 
is clear these amendments will not be dealt with until the 30 hours 
expires. So we will have one vote on the Lieberman amendment and then 
we will move to vote on final passage. I want to address the Lieberman 
amendment because what tends to happen in these cases, where things are 
done at the last minute, is that it is sort of easy to confuse people 
as to what has been done. I want people to understand where the 
provisions came from and why they are important. One can agree with 
them or disagree with them, but I want my colleagues to basically know 
where they came from.
  Over the weekend, we had a series of negotiations. I want to go back 
to the point that the President could have said, after the election, 
that he had a mandate, that this Congress could go home, that we would 
then have a new Congress and he would write the homeland security bill 
the way he wanted it written, or he would have Congress write it that 
way. I think it tells us a lot about our President that he decided not 
to do that.

  In fact, after having gotten a strong electoral mandate, the 
President actually negotiated further and made additional changes in 
his bill.
  The substitute that is before us is basically the Gramm-Miller 
amendment, which is well-known, which we debated for 6 weeks--few 
amendments have ever been debated that long in my 18-year career in the 
Senate--with two sets of changes. One, the agreements that the 
President reached with three Democrat Senators and an Independent 
Senator in negotiations over the weekend, whereby the following changes 
were made: Workers in the Federal sector and unions that represent them 
were given a greater voice in expressing their views about how the new 
Department is organized, and they were given more clearly defined due 
process. They were not given veto power, but they were given a 
guaranteed input under a specific time period. That is the significant 
change that was made. That represents a compromise from the original 
Gramm-Miller amendment.
  The second change that was made was recognized that the House had 
passed its own bill. So realizing that we were coming to the end of the 
Senate, one of the things we did over the weekend is we met with the 
House to try to make changes in our substitute to assure that at the 
end of the session we would not have to do a conference once we had 
passed the bill. Quite frankly, the Democrats who have been supportive 
of this effort felt strongly that they did not want to negotiate with 
us and then end up negotiating with other Republicans in conference. 
That makes sense. When a deal is cut, one wants it to be a deal. So we 
brought in the House. As a result, we took 95 percent of our 
provisions, took about 5 percent of the House provisions, and that now 
is the bill before us. This bill has been adopted by the House, which 
has now left town. They will be here in pro forma session on Monday, 
but practically the House has adjourned.
  I will address the generic issue about add-on provisions and then I 
want to talk about something else. I hope nobody is offended by this, 
but I have to

[[Page S11171]]

say I have probably been as strong in speaking out against add-on 
provisions as anybody. I remind my colleagues that many times at 
midnight or 2 in the morning we have had seemingly noncontroversial 
amendments that did all kinds of special projects that we were going to 
accept. In fact, earlier this Congress I sat in that very room and went 
through a list of amendments. One amendment would have the Federal 
Government absorb a billion dollars of liability for a project in one 
State. Now that is pretty targeted. I am not going to mention the 
State, and it does not matter.
  Any time we negotiate with the House, with 435 Members focused on a 
very small congressional district, they are going to put in provisions 
that relate to their district. That has been the nature of the body 
from the very beginning. It started with the first Congress. It will 
end with the last Congress. It will never go away.
  For the people who say there are extraneous matters in this bill, of 
all the major bills I have looked at that have been agreed to by the 
House and Senate, there are probably fewer extraneous matters in this 
bill than any major bill I have looked at in a very long time. I would 
like go down the list of amendments being discussed and explain where 
they came from and why they make sense.
  The first one has to do with vaccines. We had a provision in our bill 
related to vaccines and related to the production of items to be used 
in the war on terrorism. In every war we have ever fought we have had 
some form of indemnification for people who produce things used in that 
war. The provision we had in the Senate bill was a taxpayer 
indemnification. I did not like that provision, but I had Republican 
colleagues who were for it. We were trying to get 51 votes. So I took 
  The House had a far better procedure. That was a limit on liability. 
We did not take all the limits on liability they had in the compromise 
because we were afraid that might offend powerful special interest 
groups. But what we did in three of the six items mentioned is we 
simply applied the principle that has been applied to every war this 
Nation has ever fought: if you are producing a new vaccine or new 
weapon or new system for use in that effort, there are some liability 
limits involved. That is where the item of vaccines came from and where 
the item of airport screening came from and the item on manufacturers 
came from.
  To suggest this is some special interest sweetheart deal makes good 
political rhetoric, but the bottom line is it is not true. Not only do 
the provisions fit, not only are they part of the fabric of the bill, 
but we had a provision to have the taxpayer pay for the liability risk, 
and we picked a better, preferable approach, which is to limit 
liability when we introduce new technology like airport screening and 
new vaccines. We always had some limit on vaccines because they are 
risky, but the threat is now serious. It has never been relevant to a 
war effort before because we have not viewed smallpox as being a 
weapon. We do now.
  In three areas our colleagues have singled out as being special 
interests--vaccines, airport screening, and manufacturing of items used 
in the war on terrorism--those items were in the Senate substitute, but 
they were in it in the form where the taxpayer would have paid. We put 
in simple limits that make sense and that have been part of every war 
we ever fought of any significance in American history.
  The next item viewed as being extraneous is a change made to the 
Wellstone amendment. Senator Wellstone introduced an amendment adopted 
by a voice vote because it was clear it would pass and nobody wanted to 
vote on it. It said if any company has ever been domiciled in America, 
throughout American history, and that company is now domiciled 
somewhere else, that company cannot bid on contracts related to the war 
on terrorism.
  The change made in the amendment is a good government change. It is 
not an extraneous special interest provision. It is simply a provision 
that says the President, for national security reasons, has a right to 
waive this requirement. Why would he do it? First, there might be only 
one supplier. Second, there might be no competitor if it is not waived, 
in which case you could end up paying an exorbitant price. Finally, it 
might actually be better from America's point of view if the company 
has substantial production in America, even though its home office is 
somewhere else, for us to buy from that company for national security 
reasons, for job reasons, and for economic reasons. That provision is 
hardly an add-on provision. It is, in fact, a good government 

  Now, let me discuss transportation security rules. We know the 
provisions and deadlines we mandated for air travel security are so 
strenuous they cannot be met. Occasionally, we get into these 
situations where we are debating some deadline and we know the deadline 
cannot be met and will not be met, no matter what we write into law. 
What this bill does in a careful and reasoned way is set out a new 
deadline for meeting them, a deadline that can be met and that is 
reasonable. Instead of creating a farce in law where we say something 
will be done by December 31--and we know very well it cannot and will 
not be done and, as a result, you get no pressure to do it on time--we 
set a realistic deadline.
  Next we have these advisory committees. If there is anything more 
useless than an advisory committee, I don't know what it is. I am not 
saying advisory committees cannot be valuable. I am not saying there 
are not some that are valuable. But we use them so often they become 
irrelevant. The striking or not striking of these advisory committees 
has no import, no significance to this bill. If, however, by striking 
the committee we change the bill and end up killing homeland security 
because the House has adjourned, then it becomes very significant.
  Those are five of the six items that have been listed. The final item 
is the designation that a university be involved in the process. It is 
one item where there is an earmark. Seldom do we see a major piece of 
legislation that we do not have several dozen earmarks.
  We are down to a simple question, and I will conclude on this. This 
is hardly an unknown amendment. We have debated it for several weeks. I 
know there are strong feelings on the issue, but we had an election, 
and if anybody got a mandate out of that election on any issue, the 
President got a mandate: Pass homeland security.
  The House passed a bill. They negotiated with us in good faith. Was 
everyone involved in the negotiations? No. But I didn't help write the 
Lieberman amendment, either, because it was his amendment. We have 
bipartisan effort. We have a majority vote. We are down, now, to where 
an amendment has been proposed that would strike six provisions. I 
believe if the amendment is adopted, it will jeopardize the bill. The 
House passed the bill, they have gone home, and they are only going to 
be back in pro forma session. Five of the six provisions represent 
important elements in the bill.
  To suggest trying to protect and encourage the production and 
distribution of smallpox vaccine is a special interest favor to a drug 
company is taking politics beyond the realm of reason.
  On airport screening and manufacturer protection, this liability 
protection is something we have done in every war we fought. This is 
either a war or it is not a war. Should we start to buy from foreign 
companies over companies that are producing products in America but the 
headquarters was here in 1804 and it is now in London? I think we take 
this Buy America stuff too far. We should buy the best product at the 
lowest possible price that conforms with our national security. But to 
give the power to waive it when our national security interest is 
involved is hardly unreasonable.
  Changing the deadline on airport security--every Member of the Senate 
knows we are not going to meet the deadline. Why not change it?
  Finally, advisory committees--who cares? You could strip all of them 
out and I wouldn't care. But by stripping them out you are risking 
killing the bill.
  So, in the end, this amendment really comes down to a threat to the 
passage of homeland security. Five of the six provisions are totally 
defensible. The sixth one is important only if appropriations occur and 
we are going to pass the appropriations later, so we are not committing 
to anything.
  Contrary to the criticism that there are extraneous materials in this 
bill, there are fewer extraneous matters in

[[Page S11172]]

this bill than any major bill I have seen in many years. When you reach 
an agreement between the two Houses, you are always going to have 
extraneous material.
  So, we will have a vote at 5 o'clock on Monday. First of all, I think 
it is bad policy to strike these six provisions. I think no legitimate 
case can be made against four of them. I think one of them is 
irrelevant--whether we have advisory committees or not. I think the 
other one is a small item in a big bill and I do not think it is worth 
risking this bill to make that change. Nor do I believe this issue 
would ever have been raised, that this amendment would ever have been 
offered, had this not been an extraordinarily controversial bill to 
begin with.
  So I just have to say, in the big picture, I feel totally comfortable 
in defending the great majority of these six provisions. I think we 
need them. On substantive grounds, we should limit liability for new 
vaccines that may save American lives; for airport screening equipment 
that may keep our children, our spouses, or ourselves from being killed 
on airplanes; and from new manufactured items and new weapons we need 
in the war on terrorism. Those items should not be stricken.
  I know special interest groups like the plaintiffs' attorneys are 
opposed to these provisions. But they are limited, they are narrow, 
they are reasonable, and the alternative, which we had in the Senate 
amendment, was to have the taxpayer pay all these damages. So this 
seems preferable to me.
  I urge my colleagues when we vote on Monday to vote against this 
amendment and, in the process, let us pass this bill in the form it 
passed the House and, to the maximum extent possible, guarantee that we 
are successful in seeing this bill become law.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Leahy). The senior Senator from West 
  Mr. BYRD. Mr. President, I ask unanimous consent that my name may be 
added as a cosponsor of the pending Daschle-Lieberman amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator's name is added as cosponsor.
  The Senator from North Dakota.
  Mr. DORGAN. Mr. President, it is a very special moment on the floor 
of the Senate to hear my colleague from Texas defend special provisions 
being put in legislation--actually to hear him describe the 
negotiations at the end of the process that result in these special 
provisions. Because he has been a tireless opponent of provisions that 
are put in pieces of legislation that in most cases or many cases have 
nothing to do with the underlying bill. So it is a real treat today to 
hear my colleague from Texas justify and support and ask Members of the 
Senate to support these special provisions that were put in the 
homeland security bill which, in most cases, had nothing at all to do 
with homeland security.
  I must say, with respect to the issues of childhood vaccines 
liability protection, manufacturer liability protection, transportation 
security--I would wonder whether these have had hearings. Because we so 
often hear our colleagues, especially my colleague from Texas, say: You 
know, someone has put a provision in the bill. There has been no 
hearing on the bill. I am wondering whether these provisions have had 
hearings and discussion, and if there were negotiations, as was 
represented earlier by my colleague, were the parents of autistic 
children part of the negotiations? Where were the negotiations? Was it 
late at night? Early in the morning? Was it at the White House, as 
Congressman Armey would have us believe? I don't know the answer to 
that. But my hope is our colleagues will vote to strip these provisions 
from the bill.
  Homeland security, that is what this legislation is about. Frankly, 
the way this legislation has been created, it was not under normal 
circumstances, where you have committee exploration in some detail and 
some depth of all of these provisions. What has happened is at the 
eleventh hour a piece of legislation is written and it is placed on 
desks. It has a rubber band around it. It is four-hundred-and-some 
pages and I know of very few Members of the Senate who would have read 
all of it at this point.
  But having heard my colleague from Texas, for whom I have great 
fondness, describe his support for special provisions, especially at 
the end of his career here in the Senate, I must say that this is a 
very unusual moment. We will, of course, miss him for a lot of reasons. 
Among other things, I will miss him because at the end of most bills, 
he will be the one counted on to stand up and say: I object to these 
special provisions.
  But he seems to have hit a speed bump here at the end of the road, on 
special provisions. I hope my colleagues will decide they want to vote 
to strip these provisions out of this bill.
  Mr. BYRD. Mr. President, will the distinguished Senator yield?
  Mr. DORGAN. I will, of course, yield.
  Mr. BYRD. I will only be a moment. The distinguished Senator from 
North Dakota, Mr. Dorgan, has referred to the distinguished Senator 
from Texas, Mr. Gramm. May I interpose this observation.
  Diogenes went about the streets of Athens with a lantern, saying that 
he was looking--in broad daylight--he was looking for a man, he was 
seeking a man.
  Plato, upon going to Syracuse, was asked by Hieron the--I wouldn't 
say he was a beneficent dictator. But he was asked why he came to 
  He said: I came seeking an honest man.
  I rarely make the observation as a premise to what I am about to 
say--I believe the Senator from Texas is not only a man, but is also an 
honest man. He is very frank and open. He doesn't have to come to the 
floor with written speeches as I often do. He speaks from the heart and 
from the head and is very up front. He has always been that way. He 
explains his reasons. He doesn't hide his reasons. And he will answer 
your questions and he will answer honestly.
  So I pay tribute to the Senator from Texas in that regard. I am glad 
the distinguished Senator from North Dakota has given me the platform 
for a moment to say that. We may not agree with the distinguished 
Senator from Texas. I certainly don't agree with the request for some 
of the special interest provisions here in this bill. But I do say here 
is an honest man, as far as I am concerned. He is aboveboard. He will 
answer your questions. He doesn't need a written speech to do it.
  So I say I wish we had more Phil Gramms in the Senate. Excuse me for 
taking this time. I will say no more, except to thank him for the good 
  Mr. GRAMM. Will the Senator yield for just 30 seconds? It is said, in 
the old Confederate Army, that they didn't give medals.
  So the single honor was to be mentioned in Robert E. Lee's 
communiques to Richmond.
  Having the distinguished Senator from West Virginia say something 
about me and to pronounce me a honest man I take in the same way that 
any private in Hood's brigade would have taken in the mention of their 
name in one of those communiques.
  I love the Senator from West Virginia, as he knows. I think he serves 
a great purpose in the Senate. In my opinion, he is not always right, 
but right is not always easy to find. I think it is the give and take 
that ultimately produces it. Senator Wellstone, in my opinion, was not 
always right, he did speak honestly and with clarity. And he knew where 
he was coming from, and you could be for it or against it. I do think 
that is important to the Senate.
  I thank the Senator.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. DORGAN. Mr. President, the comment that not always right but 
never in doubt may well apply to every Senator. I must say to my 
colleague from Texas that I intend for a few moments on Monday to say a 
word about the Senator from Texas, and my colleagues from South 
Carolina and North Carolina, and others who are leaving the Senate. I 
don't know if Senator Byrd indicated that he wished there were more 
such as the Senator from Texas, and he is, indeed, an extraordinarily 
bright and talented Senator. There are times at midnight when he is 
objecting to all kinds of provisions that I suspect the Senator from 
West Virginia and a few others would not wish that we had 25 more 
exactly in the same mood at midnight on important pieces of 
legislation. But he and so

[[Page S11173]]

many others contribute in very significant ways to this body.
  This body produces for the American people best when it achieves the 
best ideas that everyone has to offer. There are times when we end up 
with the worst rather than the best. I have always thought that 
politics and our political system is not who is the worst; it is who is 
the best, who has the best ideas, and who can best manifest those ideas 
in public debate to achieve a result for this country.
  Regrettably, too much of American politics--especially if you are 
coming off recent campaigns--is not at all about who is the best but 
rather who is the worst. That, in my judgment, becomes an anvil on the 
body politic. John F. Kennedy used to say with some beautiful prose 
that mother kind of hopes her child might grow up to be President, as 
long as they don't have to become active in politics. But, of course, 
politics is the way we make decisions in America.
  I am enormously proud of this political system of the participation 
by Republicans, Democrats, Conservatives, Liberals, Independents, and 
moderates. I think all bring a great deal to the public debate and 
discussion, and strengthen our country.

  Having said that, on Monday I will say a few words about our 
colleagues who will be leaving us--Senator Cleland, Senator Carnahan, 
and others who have been mentioned on the Republican side. I believe 
that it is a great privilege to serve with each and every one of them, 
even though we from time to time have our differences. It is a 
remarkable privilege to be here and to serve with them.
  I wish to make a point about homeland security that is not a part of 
this bill but I think a part of something that is very important. To 
underscore how important it is, I would note that we have been told by 
the head of the CIA that the threat of attack by al-Qaida and other 
terrorists now is as high as it was the day before September 11.
  On October 25 of this year, a task force headed by former Senators 
Warren Rudman and Gary Hart issued a report on America's homeland 
security. That report was entitled ``America Still Unprepared, America 
Still In Danger.'' It was a bipartisan task force sponsored by the 
Council on Foreign Relations, which included former Secretaries of 
State, Warren Christopher, George Shultz, ADM William Crow, Retired, 
former Chairman of the Joint Chiefs of Staff.
  They found that 1 year after the September 11 attacks America remains 
dangerously unprepared for another terrorist attack.
  I specifically wish to talk about one of their concerns raised in 
this report that I read, which gave me great personal concern.
  In the report, the task force concluded that the 650,000 local and 
State law enforcement officials around the country ``continue to 
operate in a virtual intelligence vacuum without access to the 
terrorist watch list provided by the U.S. Department of State to 
Immigration and consular officials.''
  Our government has a watchlist to identify foreign nationals 
suspected of ties to terrorist organizations. That watch list is at the 
State Department. It is provided to the Immigration Department and to 
consular officials. It sets out the names of people whom we ought to 
watch because they are known terrorists. They are people who associate 
with terrorists; they are a terrorist threat to this country.
  Guess what. That watch list is unavailable to state and local law 
enforcement officials around this country.
  Thirty-six hours before the September 11 attack, one of the hijackers 
was pulled over by a Maryland State police trooper for driving 90 miles 
an hour on Interstate 95. The hijacker's name was Ziad Jarrah. He was a 
26-year-old Lebanese national. He was one of the key organizers of the 
al-Qaida terrorist cell formed in Germany 3 years ago. He shared an 
apartment with Mohammed Atta. And he was at the controls of flight 93 
when it crashed in a rural area of Pennsylvania.
  When that hijacker--or at that point the potential hijacker--was 
pulled over by the Maryland trooper, he was driving a car rented under 
his own name.
  There are a couple of things with respect to this issue that are 
  No. 1, his name was not on the watch list.
  No. 2, had it been on the watch list, it wouldn't have mattered 
because a highway patrolman or a city police officer has no access to 
that watch list. The officer can run the name of an individual through 
the NCIC computer and find out if that individual has an outstanding 
warrant, or if there are law enforcement warnings about him but the 
officer has no way of knowing if the individual is on the State 
Department terrorism watch list.
  The State Department watch list has the names of 80,000 terrorists or 
suspected terrorists on it. And 2,000 names are being added each and 
every month. The watch list is drawn from a good many area intelligence 
agencies. And as we speak, there is no way for law enforcement 
authorities to access the database.
  Let me read in detail an excerpt from the Hart-Rudman report:
       `With just fifty-six field offices around the nation, the 
     burden of identifying and intercepting terrorists in our 
     midst is a task well beyond the scope of the Federal Bureau 
     of Investigation. This burden could and should be shared with 
     650,000 local, county, and state law enforcement officers, 
     but they clearly cannot lend a hand in a counterterrorism 
     information void. When it comes to combating terrorism, the 
     police officers on the beat are effectively operating deaf, 
     dumb, and blind. Terrorist watch lists provided by the U.S. 
     Department of State to immigration and consular officials are 
     still out of bounds for state and local police. In the 
     interim period as information sharing issues get worked out, 
     known terrorists will be free to move about to plan and 
     execute their attack.'

  This comes from the report of former Senators Hart and Rudman, 
entitled ``America Still Unprepared, America Still In Danger.''
  I asked my staff--after I read this in the Report--to contact the 
task force. The task force, through my staff, has told me that they are 
not aware of any administration initiative to fix the problem. This, 
despite the fact that this is a top recommendation of a blue-ribbon 
task force.
  So I asked the Congressional Research Service to contact the White 
House Office of Homeland Security, the Department of State, and the 
Department of Justice. They have done this in recent days.
  My understanding is that after I made these inquiries the White House 
convened a meeting with State and Justice officials, and they are now 
apparently looking into ways to integrate the State Department 
terrorist watch list--called the ``Tipoff'' database--with the National 
Crime Information Center, which is accessible by State and local law 
enforcement authorities.
  This effort must be expedited. Let me quote from the article in the 
Washington Post of just yesterday:

       U.S. intelligence officials, increasingly confident that al 
     Qaeda leader Osama bin Laden is the speaker on a new 
     audiotape released this week, said yesterday that the message 
     was part of a disturbing pattern indicating that terrorist 
     groups may be planning a new wave of attacks on Western 
       Even before the purported bin Laden tape surfaced on the 
     al-Jazeera satellite network on Tuesday, the CIA, FBI and 
     National Security Agency had detected a significant spike in 
     intelligence ``chatter'' over the previous 10 days that 
     strongly indicated new assaults are being planned, officials 
     in U.S. intelligence agencies said.

  That is from the Washington Post.
  They continue to say:

       The amount of alarming information was approaching the 
     volume seen in the weeks before the Sept. 11, 2001, attacks 
     in Washington and New York, and again in the middle of last 
     month following a wave of attacks on overseas targets, some 
     sources said.

  The point is this: Homeland security and homeland protection rests, 
yes, with our intelligence-gathering agencies, yes, with the FBI, the 
CIA, and all of the officials who are working very hard, spending a lot 
of hours doing the best job they can to make it work. But beyond that, 
it also rests with cooperation with all of the local responders, 
especially local law enforcement officials across this country. There 
are 650,000 of them.
  If, today, a terrorist drives through a rural county in North Dakota 
this afternoon, or a rural county in Vermont, or Kentucky, or in the 
middle of New York City, and is picked up for a traffic violation, and 
is a known terrorist on a watch list--guess what--

[[Page S11174]]

that highway patrolman, that city police officer is going to run that 
terrorist's name through the database at the NCIC, and they are going 
to get no warning that what they have on their hands is a terrorist in 
the car in front of them. There would be no warning at all because they 
cannot access the watch list.
  If we have a watch list in which we have identified the names of 
terrorists and suspected terrorists, it makes no sense at all to 
withhold that information from law enforcement officers, who every 
single day climb out of bed and go protect this country on America's 
streets, on our highways. They are our eyes and ears. They are also 
watching out for the security of this country. They ought to have 
access to that watch list.
  Again, let me say, this was the No. 1 recommendation in the report 
offered by former Senator Rudman and former Senator Hart. The report, 
which I would urge everyone to read, is entitled: ``America Still 
Unprepared--America Still in Danger.'' These are former Secretaries of 
State, former Senators, Republicans, Democrats, evaluating what needs 
to be done to protect this country for this country's security.
  I want to go back to read just a portion of the report. The task 
force had this to say:

       With just fifty-six field offices around the nation, the 
     burden of identifying and intercepting terrorists in our 
     midst is a task well beyond the scope of the FBI. The burden 
     could and should be shared with 650,000 local, county, and 
     state law enforcement officers, but they clearly cannot lend 
     a hand in a counterterrorism information void.

  Yesterday, I was on the phone with a community in North Dakota, and 
the county sheriff was there in the room, and we talked by conference 
phone. We talked about this issue. He is not too far from the Canadian 
border. If one of his deputies or that county's sheriff stops a car on 
a rural highway, and it turns out to be a terrorist driving a rented 
car, he is not going to know because he does not have access to the 
watch list, he does not have access to the information. The FBI will 
not know, the CIA will not know, no one will know that terrorist was 
driving a car on that rural road because the person who apprehended 
him--the county sheriff, the city police officer--had no access to the 
information the State Department has, the consular officials have, the 
CIA has. It is not that the information does not exist, it is that it 
is not shared with local law enforcement officers across this country 
for the purpose of securing this country's homeland.

  So this was the task force's top recommendation. This was not No. 5 
or No. 10, it was the top recommendation of this group, a group that 
included several former Secretaries of State under Republican and 
Democratic administrations, Republican and Democratic former Senators, 
and others.
  So I implore the President and the folks who are apparently now 
working on this to do everything they can in this regard. When a 
trooper stops someone for speeding tomorrow, or the day after tomorrow, 
or the day after that, and the individual that was pulled over is a 
terrorist, I want that trooper to realize who he has in that car--for 
the trooper's protection, and for the protection of this country.
  Let me talk briefly about one other piece of homeland security, and 
we addressed part of it yesterday.
  I have told my colleagues previously, I was recently at a port in 
Seattle. I don't know much about ports because I come from a landlocked 
State. I don't come from a State near an ocean. So I went down to see 
how the ports worked. They showed me all these ships that come in with 
all these containers.
  I asked: What is in all these containers? They said: We have all 
these bills of lading and invoices, so we know what is in them. I 
asked: Can I see? And they showed me some containers they were opening.
  They showed me a container from Poland that had frozen broccoli in it 
in 100-pound bags. They pulled out a bag of frozen broccoli and cut it 
open. Sure enough, it was frozen broccoli. I asked: What is in the 
middle of the container? I know what is in this bag. And they said: 
Well, we just know what's on the invoice.
  We are spending $7 to $8 billion to see if we can stop an incoming 
missile because we are very afraid a terrorist group might get hold of 
an ICBM. But it is more likely a terrorist group might put a weapon of 
mass destruction in a container on a container ship that comes in at 3 
miles an hour pulling up to a dock in New York City or Los Angeles.
  We have 5.7 million containers every year coming into our ports. So 
5.7 million containers every single year; 100,000 are inspected, 5.6 
million are not. Is that a matter of homeland security? You bet your 
life it is.
  A fellow in the Middle East--many of you read about this fellow--
decided he was going to ship himself to Toronto and then come into this 
country. He had a GPS, a computer, a toilet, fresh water, a cot, all in 
a container loaded on a container ship, shipping himself to Toronto, 
Canada, with the intention, apparently, of coming into this country.
  Do we need to be concerned about these things? You better believe it. 
And many of these issues, even if we passed a homeland security bill, 
will not be resolved.
  The first issue I mentioned today is not resolved, and will not be 
resolved with the passage Monday of this bill: The fact that 650,000 
local law enforcement authorities have no ability to access a watch 
list to determine who is a terrorist and who isn't. And 5.6 million 
uninspected containers coming into our ports will not be inspected next 
Tuesday when the homeland security bill is passed.
  So my point is, there is much left to be done for those of us--and I 
am sure that is all of us--who care deeply about homeland security in 
this country.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from New York was on his feet. I 
know the Senator from Tennessee is waiting.
  Mr. SCHUMER. If the Senator will yield, I was waiting behind the 
Senator from North Dakota, Mr. Dorgan. If we are going back and forth--
I only want to speak for about 10 minutes.
  Mr. FRIST. Mr. President, I sought recognition first.
  The PRESIDING OFFICER. There is not a particular order. The custom is 
usually to go back and forth from side to side. I am wondering if we 
might recognize the Senator from Tennessee, to follow the normal 
  Mr. FRIST. Normal procedure would be to turn to me?
  The PRESIDING OFFICER. I am sorry. I heard the Senator from New York, 
but if the Senator from Tennessee says he sought recognition earlier, 
then I will apologize for not hearing him.
  Mr. FRIST. Mr. President, I would be happy to yield, although I felt 
I was--
  The PRESIDING OFFICER. The Chair recognizes the Senator from 
  Mr. FRIST. Mr. President, I will yield 10 minutes to the Senator from 
New York. Is that enough time?
  Mr. SCHUMER. I appreciate it. I don't want to break the protocol.
  The PRESIDING OFFICER. I am prepared to recognize the Senator from 
  The Senator from New York.
  Mr. SCHUMER. I thank the Senator from Tennessee.
  The PRESIDING OFFICER. I thank both my colleagues for helping the 
Chair out of a difficult situation.
  Mr. SCHUMER. Let us hope and pray that is the Chair's most difficult 
situation in the upcoming months.
  I thank the Senator from Tennessee for allowing me to speak. I will 
try to be brief. I would like to talk about two related subjects in 
this bill: What is in the bill and what is not in the bill.
  What is in the bill, aside from the original homeland security 
provisions which we have been debating for a very long time, are little 
pieces of legislation unrelated to homeland security, none of which 
could stand the scrutiny of individual debate. In other words, if any 
of these little provisions were put in separate legislation and brought 
to the floor of the Senate, my guess is they would be overwhelmingly 
  For those to be in homeland security right now, for those pieces of 
pork, for those rifleshot pieces of legislation that benefit one 
company to be in this bill, particularly after the President made such 
a fuss about keeping this bill the way he wanted it without any other 
provisions in it, is very wrong.

[[Page S11175]]

  I hope we will support the Lieberman amendment. There are a few that 
are particularly galling to me. Probably the worst is a provision in 
this bill that was in the original bill that the House just took out 
that said, if you go overseas to avoid paying taxes, the original 
provision said, you can't bid on homeland security contracts. This 
takes it out. It says to companies that move overseas that they can 
benefit from the homeland security issues. I find that very troubling.
  There is a provision that exempts one company, Eli Lilly, from any 
liability against a drug that is already subject to many lawsuits 
because of its mercury levels. That kind of provision would never pass 
standing on its own, and it was slipped in in the dark of night by the 
other body. We should not countenance it here.
  There are provisions that redebate the tort law. We will have plenty 
of debates about tort law next year; I am sure of that. But to put them 
in this legislation with no debate would make the Founding Fathers gag.
  We should stop doing these things, but particularly in a homeland 
security bill that was so subject, in the election, to a debate that 
the President wanted it his way or no way and led, at least if you 
believe some of the pundits, to some of our colleagues losing their 
elections because they wanted it a slightly different way. Now to put 
these sometimes pork, sometimes lard, sometimes extraneous provisions 
in this legislation is unfair, is wrong. We should support the 
Lieberman amendment.
  I also would like to talk about what is not in the bill. This bill is 
a reorganization of agencies. All things being equal, it is better than 
not having it. But anyone who thinks, as my colleague from North Dakota 
has outlined, that this is going to make us safer, this is going to do 
the job, is sadly mistaken. I will support the legislation because it 
is a little bit better than the present situation. But I am worried 
that then we will think we have done all we can on homeland security.
  This administration is letting our Nation down on domestic security--
not by design but by effect--when they say that nothing can be added to 
homeland security that costs money. I don't get it. We are willing to 
spend $80 billion on a war in Iraq which I have supported, but we are 
not willing to spend $250 million to prevent nuclear weapons from being 
smuggled into our country. Where is the logic there?

  Does anyone think that rearranging agencies is going to get the INS 
to have better computers or the Coast Guard to better defend our 
borders? No. And this administration is going to run up against a 
serious problem if it continues to have the view that we cannot spend a 
nickel on domestic security. The analogy, the comparison is stark. The 
military gets all the money it needs--it should--but our domestic 
agencies, both Federal and State and local, that deal with homeland 
security get virtually no dollars at all.
  I was told that my provision, which had bipartisan support--Senator 
Lieberman, Senator Thompson, Senator McCain, Senator Hollings--that 
would have enabled us to have nuclear detection devices attached to the 
cranes that load and unload containers and could detect a nuclear 
weapon that would be smuggled in, had to be out of the bill because it 
cost money. I find that to be sad. I find that to be troubling in the 
sense that we are letting our national guard down. If we were under 
such spending constraints when it came to the rest of the parts of the 
war on terrorism, I would say OK. But I don't understand why we can 
spend all the money we want overseas but when we come to the water's 
edge, even carefully thought out small amounts of money are not 
  This bill is problematic for what was just added in and what was not 
put in. It is a little bit better than nothing. It is a baby step in 
the direction of better homeland security because our agencies do have 
to be reorganized. But I hope and pray that not only we take out the 
extraneous provisions that should be debated another day, but that we 
don't make the mistake that this reorganization bill is doing what we 
need for homeland security.
  With that, I yield the remainder of my time and once again thank my 
colleague from Tennessee for his graciousness in allowing me to speak. 
I will now exit for the shuttle to New York.
  The PRESIDING OFFICER. The distinguished Senator from Tennessee is 
  Mr. FRIST. Mr. President, I rise to speak in opposition to the 
Lieberman amendment and will spend a little bit of time over the next 
probably 30 minutes going to the substance of what this amendment does, 
talking policy, but also talking to the impact that passing the 
Lieberman amendment would have on our homeland security.
  The bottom line is that I believe striking the provisions, which is 
what the Lieberman amendment does--it pulls out certain provisions from 
the underlying bill--will put the people of our Nation at greater risk, 
when we are talking about homeland security and safety and protection 
of individuals, of families, of children. That is a broad statement. It 
is a bold statement for me to make. But over the next several minutes I 
want to give you the substance of it.
  A lot of people have said these provisions having to do with vaccines 
and smallpox are one-company provisions. The second argument is that in 
some way these provisions cut off the rights of individuals to go to 
court. We have heard statements by the proponents that one agent, one 
preservative, causes autism and thus in some way the underlying bill 
will hurt families with children with autism.
  As a scientist, as a physician, as someone who is very familiar with 
the provisions that were placed in the homeland security bill, I have a 
certain obligation to walk my colleagues and the American people who 
are listening through what the Lieberman provision would do by 
stripping out the smallpox provisions, by stripping out the vaccine 
  Let me begin by saying we are a nation at risk. We are at risk from 
nuclear weapons and from chemical weapons; we know. But when it really 
comes to what could potentially happen to our homeland--remember this 
is homeland defense that we are talking about--I would argue that the 
greatest risk for a weapon of mass destruction to be microorganisms, to 
be anthrax, which terrorized the Nation, when we don't even think, we 
don't know, we don't think it was used by a State, or the introduction 
of smallpox, which we know is a weapon of mass destruction, if 
introduced into a population that is unprepared, that has not been 
vaccinated. Vaccine is the front line for people at risk from anthrax. 
It is the front line for people at risk from smallpox. That means your 
children. That means your spouse. That means your grandparents. That 
means your family.

  So we must not do anything and the Lieberman amendment would do 
this--to increase the barrier for you to be protected.
  Iraq has been mentioned. Most of my colleagues know that Iraq had one 
of the most robust biological weapons programs in the history of the 
world. It loaded anthrax, it loaded botulism toxin on missiles during 
the gulf war, inserted it into the warheads of these missiles. We don't 
know about smallpox. We didn't know that refrigerators had been found 
in Iraq that said ``smallpox'' across them, but we do know this robust 
biological weapons program is the foundation for a program of weapons 
of mass destruction.
  The interesting thing about these microorganisms, these viruses, 
these bacteria, is that you don't have to have a big ship out there to 
send in a missile. We know that once you put smallpox in a society, it 
will travel through our schools, it will travel through our businesses 
and through our homes, and the only defense we have--the only defense, 
in terms of a medical treatment, is that vaccine. That is why, when we 
talk vaccines and when we talk smallpox, it is incumbent upon us to 
have those provisions in this bill.
  I will begin with smallpox because it is the one that, a week from 
now, can be a problem. What about right now, or tomorrow morning, if we 
hear of three or four smallpox cases in the country? What actually 
happens at that standpoint? Smallpox is a disease that is one of the 
most deadly infectious diseases. There is a 30-percent chance, to 
anybody who gets it, that they are going to die. If three people are 
here, one of those three will die if they get smallpox.
  What is the treatment? The only treatment--real treatment--is to get

[[Page S11176]]

that vaccine on your arm within 3 days. Some people say 4 days. I 
personally think it is 3. Some say 5 to 10, but if your child has 
smallpox, not from when the manifestations start appearing but from the 
time of actual contact, and that entails having a vaccine out there--
say 300 million doses, because we know smallpox in an unprotected 
population, which we are, knows no barriers. Right now, if I had 
smallpox lesions within my mouth, people around these four or five 
desks probably would already be infected. The only protection is the 
vaccine itself. The only treatment for smallpox--and this isn't true 
with all biological agents, but the only treatment is the vaccine 
within 3 days.
  The administration has a policy, that I agree with, that basically 
is, if there is an outbreak, or a case, you can inoculate people in 
that area. That is a great policy. We don't need to mass-vaccinate 
everybody. What about right now?
  People listening, saying we are a nation at risk--Iraq has had 
biological weapons programs. We know Saddam Hussein is a mass killer, a 
serial killer, who kills his own people and other people. He hates the 
United States. We know the most powerful weapon of mass destruction is 
smallpox, and we know there is a refrigerator sitting there that has 
``smallpox'' written on it.
  What if I wanted to get the vaccine now, just in case? Right now, you 
cannot get it. I argue that you should be able to get it. But that is 
not yet the policy of the United States. I think with informed consent, 
knowing the side effects and knowing what the advantages could be--
lifesaving--weighing the relative risk--what about if a case breaks out 
in the Northwest, say Oregon, tomorrow? If you wanted to get the 
vaccine and you live in Nashville, TN, you could not get it. We ought 
to change that. That is not what we are talking about today, but you 
see that vaccines are a front line for homeland security.

  I don't know what is going to happen in Iraq; none of us knows. If we 
come back and deal with this 6 months from now, or a year from now, or 
2 years from now, we are inadequately protecting the American people. I 
don't want to overstate it, but that is my belief.
  If smallpox hits here, right now, we are inadequately protected. The 
Lieberman legislation would strip out a provision, within 2 days or 3 
days or 4 days, that would make us more adequately protected as a 
  The threat of liability--this is where the other vaccine provisions 
are important--should not become a barrier to the protection of the 
American people. I will repeat that. The threat of liability should not 
become a barrier to the protection of the American people.
  Then you go back to the question, What is this threat of liability? I 
will boil it down and use smallpox as an example. Smallpox can hit here 
tomorrow or in 30 days or in 60 days from now or in 90 days or maybe 
never. We all pray it never hits. We have 300 million doses of vaccine. 
It is not all licensed yet, but it is good vaccine and I have utmost 
confidence in it. It is a risky vaccine. The childhood vaccines we use, 
which we are inoculated with--even the anthrax vaccine that potentially 
has certain side effects--if you look at these, I put smallpox among 
the most risky because we know the side effects are that about 1 in a 
million people would die. If you vaccinated 300 million people, about 
300 would die. Ten times that number would have serious side effects--
maybe encephalitis or many others that are life threatening. As a 
matter of fact, probably 30, 40 times that many would have a bad rash, 
many of which would cause hospitalization. So it is a vaccine, in 
medical terms, with more potential side effects than others.
  What would you say if there were an outbreak tomorrow? You would call 
in nurses and public health officials, and pediatricians and other 
doctors, and you would say, as part of the American response to 
bioterrorism and the use of bioterrorist agents or microorganisms as 
weapons of mass destruction, you need to get this vaccine to as many 
people as you can within 3 days. It could be maybe 100 or maybe 1,000, 
or 10,000; and in a city such as New York, it could be a million easily 
within 3 days. Okay, you have the vaccine. You have willing health care 
providers. I think of myself as a physician. Everybody could be 
mobilized to do that. You are basically saying, as American policy: You 
need to give that vaccine. It has side effects, but we are not going to 
protect you in the event there is a side effect--death or encephalitis. 
We are not going to protect you in any shape or form, although you are 
fulfilling the mandate and the policy, the emergency response of the 
American people.
  Why would they not do that? Because of the lack of protection from 
skyrocketing lawsuits. I have a great fear--and I don't want to say I 
know for sure, but I have a fear in talking to health care providers 
and to the nurses who recognize, given that vaccine is important to 
life saving, but at the same time is subjected to these unlimited 
lawsuits with punitive damages--they just might say: I cannot subject 
myself to giving a thousand of those doses, even looking at the 
statistics. That is the problem, that is why the smallpox provision has 
to be in there.

  We have had so many people make all these statements, but nobody has 
been to the substance. The bill extends the Federal Tort Claims Act--
the FTCA--protection to any person, such as a doctor, or a 
pediatrician, or a nurse, or somebody who is qualified to be giving 
that inoculation, lifesaving inoculation, in your arm. It provides them 
a protection of the Federal Tort Claims Act.
  What is important there--people say if that is the case, you cannot 
sue. Well, that is simply not true. It basically says that the Federal 
Government is going to be on your side and will defend you in any 
lawsuit and the Federal Government will pay the damages. It does not 
deny adequate, just, fair compensation if there is a side effect, but 
what it does do is you are going to have somebody behind you; namely, 
the Federal Government, to pay you damages. It does say you go to 
Federal court. People say Federal courts cannot do this. In truth, we 
all know Federal courts can do that.

  It is important to point out that in Federal court, the rules that 
are actually used are going to be applicable to that State or according 
to State law.
  Thus, you can still sue, but the Federal Government pays. A lot of 
people say you should be able to punish anybody--punish that nurse who 
put that vaccine in your arm--so let's have punitive damages on top of 
compensation. The underlying bill says you get adequate, just, fair 
compensation. You are defended by the Federal Government and they will 
pay you, but there is no punitive damages component, which makes sense 
because, remember, that nurse is putting that inoculation on your arm 
to save your life under a plan put forward by our Government, probably 
in response to an emergency.
  Over time, I think we need much more balance in terms of the overall 
provisions. It was not my idea, although I support these provisions 
strongly, to take these specific provisions out and to put them into 
the bill. So over time, we need to develop a more comprehensive policy 
to make sure we have both a full range of vaccines developed, that we 
have appropriate countermeasures, and if somebody is harmed by a 
vaccine, there is fair compensation.
  We need to come back and visit this in a more comprehensive way as we 
go forward. I will add, though, there is some sense of urgency to this 
given the threats today.
  The issue of what is front line is important because the use of 
germs, microorganisms, and bacteria is new to the American people as 
weapons of mass destruction. It is causing us to say we understand 
nuclear weapons, gas, but what about these organisms that can wind 
their way through a society? What is the front line?
  That is why vaccines are absolutely important because they become the 
front line, and that is why we address vaccines in the homeland 
security bill, especially since we are at risk today. One cannot turn 
on a television or read a newspaper without learning of this enhanced 
risk, this higher risk.
  Let me back out of this broader issue of vaccine. Smallpox is one 
case. It happens to be a virus. What about the plague which wiped out a 
third of Europe? What about anthrax? We have an old vaccine. The 
vaccine has to be administered over and over, so we need newer vaccine 
developed for anthrax.

[[Page S11177]]

  What about Ebola? About 3 months ago, the National Institutes of 
Health said in their response to bioterrorism that one of its major 
priorities is going to be the development of a vaccine for the Ebola 
virus. That makes sense because we know that other states in their 
offensive biological weapons programs--and there are 12 offensive 
biological weapons programs outside the United States; people need to 
know that--there has been a linkage of smallpox with the Ebola virus. 
We know Ebola has a 90-percent mortality rate; smallpox has a 30-
percent mortality rate. We should at least be thinking of a front line 
there which means a new vaccine. NIH said 4 months ago--and most people 
do not even know it--has as one of their major initiatives development 
of an Ebola vaccine. Why? Because intelligence tell us people have 
attempted to link viruses. Thus, we need to have an effective response 
system in terms of the development of vaccine.

  Research is good. NIH is doing research. But unless we have 
manufacturers in the field manufacturing vaccines, we can have the 
greatest research in the world and know how to do it, but unless we can 
produce it and produce it quickly, the know-how does not do us any good 
because we are not going to be able to develop the vaccine to put on 
your arm and protect you from the Ebola virus.
  There are provisions in this bill that provide smallpox as a 
microcosm, but in the macro sense, there are other vaccines. Every 
year--and the distinguished Presiding Officer knows this--we hear about 
these shortages of vaccines about every 6 months. People ask: Why are 
there these shortages? It is multifactorial, and we have to address 
  One of the issues we know is this unlimited liability. Think back to 
the smallpox vaccine. It is put on your arm, and you have a bad side 
effect. Somebody is going to sue for that side effect. There are no 
protections today. In the same sense, the manufacturers, the 
pharmaceutical companies, which is very popular for people to beat upon 
aggressively these days, the manufacturing companies, the 
pharmaceutical companies are the only ones that can make the smallpox 
vaccine, the front line for that weapon of mass destruction, for the 
Ebola virus.
  We can, through NIH, promote the research, but only a manufacturing 
firm, a pharmaceutical firm can make the Ebola vaccine. There used to 
be in the eighties 12 pharmaceutical companies making vaccines. Then it 
dwindled to 10, then to 8, then to 7, then to 6, then to 5, and there 
are now only 4 vaccine manufacturers licensed to sell vaccines in the 
United States, and only two of these are American companies.
  Why is that the case? Why would they stand out totally exposed for 
making a medicine that is lifesaving, yes, but one that with one 
lawsuit can wipe out their whole development process, their whole 
manufacturing process today?
  That is an issue that has to be developed, and the urgency of it is 
the fact we are a nation at risk from biological agents, and there are 
12 states that have offensive biological weapons programs, and we are 
today unprotected.
  On the liability issue, people have said one preservative causes 
autism. They mentioned this on the floor. That is just wrong. The 
Institute of Medicine has made it very clear that there is no 
established causal relationship between that preservative and autism. I 
will and others need to go back and look at the data, but the Institute 
of Medicine has basically said that to date. We need more research.
  I was one of the primary authors of the autism research bill. We need 
to look at it again. I want to assure families in the country that 
those statements made on the floor of the Senate are wrong. There is 
nothing in the underlying bill that slows down research for autism or 
just compensation, if there is an association between autism and a 
certain preservative.
  It is interesting, with these vaccines being sort of inherently 
risky, with the risk of liability costs driven up so high because it is 
easy--it is not easy, but we can have lawyers coming in and starting 
these lawsuits.
  In the 1980s, this body started the Vaccine Injury Compensation 
Program. They did this through the National Children's Vaccine Injury 
Act. It was passed in 1986, I believe. The whole purpose of this 
program is to provide injured patients compensation while attempting to 
control litigation, based on the recognition that vaccines will always 
be an easy target because they have inherent side effects and everybody 
gets vaccines--everybody in this body has been vaccinated. Everybody 
listening hopefully has been vaccinated. We all depend on those 
vaccines. That at the end of the day, since everybody gets it and there 
are certain side effects, that if you want to make a lot of money you 
can go out and start getting these people and start creating these 
lawsuits. That is why in the mid-1980s we said we have to put all of 
this together and look at it in a reasoned way, a way that is 
efficient, a way that is fair to people broadly. The vaccine injury 
compensation program is essentially a no-fault alternative to the 
traditional tort system in this whole area of vaccines. It has been a 
key component of stabilizing the vaccine market, of not driving even 
those last four companies--or the last two in this country--out of 
making vaccines. It has a streamlined process. It puts down a less 
adversarial alternative so not everybody is going to court and spending 
weeks, months, and in some cases years trying to have their cases 
actually looked at.

  It encourages research and development of new and safer vaccines, and 
it provides the appropriate liability protection to that nurse who is 
putting that inoculation, that vaccine, in your arm, as well as the 
health care providers, the facilities, and the manufacturers.
  What is in the underlying bill is a narrow set of provisions that 
were actually taken from a bill that I have studied for the last 3 
years and that I introduced this Congress, that should eventually be 
passed in this comprehensive form, but the provisions have been taken 
out and included in the underlying bill I feel strongly about and I 
will continue to talk to my colleagues about them individually as they 
understand why those provisions were included.
  I will say that the provisions that are in the bill are far narrower 
than what I think we actually need to do to have this balance in our 
liability system so we can continue to develop vaccines to protect our 
children, the current generation. In the event there is a bioterror 
attack a week from now, a month from now, a year from now, we will be 
adequately prepared.
  The Lieberman proposal would strike these sections that are in the 
underlying bill. And all of them merely restate to some extent what was 
intended by Congress. This is a clarification, a restatement. In 1986, 
when it passed the bill, the underlying bill called the National 
Children's Vaccine Injury Act, what that act did was to create an 
administrative mechanism by which those children who have a serious 
side effect from a vaccine can receive compensation without ever having 
to prove in court a vaccine caused their particular injury. So you do 
not have to go to court. You can go to this new administrative body.
  There are a handful of people who do not believe in vaccines. They 
just say all vaccines are bad. Most know that they are invaluable and 
have spared our children from many of the diseases that haunt us. Thus, 
when you have that which we all really fully understand today, that 
they are a protection for our children, plus this new threat of 
bioterror, that is why you link it to homeland security and that is why 
it is important in this bill. We know we must preserve that 
manufacturing base so with the research that is done, yes, by the 
pharmaceutical companies, but also maybe even more importantly by the 
NIH, we can actually manufacture those vaccines.
  Section 171 clarifies that the components and ingredients of a 
vaccine listed in the vaccine's product license application and label 
are not contaminants or adulterants. Importantly, the advisory 
committee, from which all of this essentially was taken, is an advisory 
committee called the Advisory Commission on Childhood Vaccines. They 
unanimously concur with this particular provision.
  The next section, section 1716, adds a definition of ``vaccine'' to 
the Public Health Service Act since that term was not defined at all in 
the initial legislation back in 1986. This section states

[[Page S11178]]

the obvious--that the term ``vaccine'' includes all components and 
ingredients listed in the vaccine's product license application and 
product label. Again, the Advisory Commission on Childhood Vaccines 
recommended the appropriate modification which is a part of the 
underlying homeland security bill, again, which the Lieberman amendment 
would strip out.
  Sections 1715 and 1716 restate the original intent of the law that a 
vaccine is all the ingredients and components in the product which are 
approved by the FDA. This is an important one because there have been 
some allegations that all this was stuck in for a single company. The 
fact is that there are presently more than 150 of these lawsuits 
against the four vaccine manufacturers, as well as pediatricians, 
children's hospitals, state health departments and other healthcare 
providers. From my comments, one can see that it is not a single 
company. We are talking about a huge issue that reflects back to the 
protection of our families and our Nation.
  Section 1714 clarifies that the term ``manufacturer,'' under the 
VICP, includes any corporation, organization, or institution that 
manufactures, imports, processes or distributes any vaccine on the 
vaccine injury table, including any component or ingredient of such 
vaccine. The Advisory Commission on Childhood Vaccines, again, an 
independent body making specific recommendations--it is composed, by 
the way, of trial lawyers, medical providers, and injured parties--
unanimously supported this provision. This provision restates 
Congressional intent to ensure that any lawsuit alleging vaccine-
related injury or death follow the same process and groundrules 
regardless of whether it is against the final manufacturer, a physician 
or hospital, or a component or ingredient manufacturer and addresses 
those lawsuits seeking to circumvent the Vaccine Injury Compensation 
  I also want to point out that these provisions are supported by the 
American Academy of Pediatrics, and I will talk more about that in a 
  I want to run through a couple of other specific ones, again because 
nobody has really talked to the substance underlying what this 
amendment would mean.
  The congressional intent very much was to encompass the manufacturers 
of component materials of vaccines in the definition of ``vaccine 
manufacturer,'' and these provisions--what they do is clarify this 
intent. They restate the congressional intent as part of the Vaccine 
Injury Compensation Act. The courts are presently correctly ruling that 
these amendments--what they are doing is part of that congressional 
intent. The courts have correctly rejected the contention that a 
component or ingredient of an FDA-approved vaccine can also be 
considered substitute an adulterant or contaminant.
  Among these decisions, the court charged with adjudicating the 
vaccine injury compensation program recently concluded that the 
language and legislative history of the National Children's Vaccine 
Injury Act demonstrated that claims relating to components of covered 
vaccines are plainly subject to the act. As to the misconceptions that 
have been presented on the floor, No. 1, these provisions do not 
prevent patients from suing in court. The statement has been made that 
it takes away rights. It does not. It does not prevent patients from 
suing in court. Instead it merely requires, as is required under 
current law, claimants must first go through the compensation program 
designed in the 1980s which has worked effectively but does need to be 
modified, as is being carried out in these provisions. They maintain 
their right to pursue a court case.

  One can go through that program itself, the administrative program, 
in a timely way. If someone does not agree with the compensation that 
they put forward, they can go to court. I will say that without this 
clarification, litigation outside the program--and that is what is 
happening today--will continue and the supply of vaccines could well be 
jeopardized as we have these huge lawsuits.
  One lawsuit today is $30 billion. That is what they are looking for 
in one lawsuit, $30 billion. The whole vaccine industry is only $5 
billion. There are about 150 of these lawsuits out there today. Those 
who desire to bring litigation outside the compensation program will 
continue to sue the manufacturers of components of vaccines and 
ultimately that is going to result in the manufacturers of the products 
themselves simply walking away and not making vaccines and getting out 
of the vaccine business. Then who is going to make the vaccine for the 
Ebola virus, which our Federal Government, through intelligence, has 
identified as one of the six agents of which we are at risk, one of the 
six agents against which other nations have had offensive biological 
weapons programs.
  If litigation continues against component manufacturers outside of 
the vaccine injury compensation program, those companies that make the 
components simply are going to be unnecessary to provide the vaccine or 
those people who make FDA-approved components and give them to the 
vaccine manufacturers will stop making those components. We saw that in 
the mid-1990s when raw material suppliers refused to sell the necessary 
components to the medical device manufacturers. People just stopped 
making materials there because of this fear of litigation. Ultimately 
there it took an act of Congress to protect those component 
manufacturers, the people making the pieces that go, for example, into 
a pacemaker or, in this case, it would be a component of the vaccine. 
It took an act of Congress to prevent a shortage back then of 
pacemakers and of other vital medical devices.
  These provisions that are in the underlying bill have been 
unanimously supported by the Advisory Commission on Childhood Vaccines. 
As I mentioned, that includes injured patients, trial lawyers, and an 
expert group of patients as well. They have been endorsed by the 
American Academy of Pediatrics.
  I ask unanimous consent to have a portion of letters from the 
Advisory Commission on Childhood Vaccines and the American Academy of 
Pediatrics printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                               Advisory Commission

                                       on Childhood, Vaccines,

                                    Alexandria, VA, June 19, 2002.
     Hon. Tommy G. Thompson,
     Secretary of Health and Human Services,
      Washington, DC
       Dear Secretary Thompson: The Advisory Commission on 
     Childhood Vaccines (ACCV) is authorized under Section 2119 of 
     the Public Health Service Act to advise the Secretary of 
     Health and Human Services (the Secretary) on the 
     implementation of the National Vaccine Injury Compensation 
     Program (VICP). At the June 6 meeting, the ACCV discussed in 
     detail the need for urgent modifications of the VICP and the 
     necessity to ensure the viability of the Vaccine Safety 
     Datalink Project. Actions are needed to address a variety of 
     concerns that directly impact the VICP.


       As of May 2002, more than 50 individual and class action 
     lawsuits with millions of plaintiffs alleging potential 
     thimerosal-related injuries from childhood vaccines have been 
     filed in state and federal courts. The plaintiffs in these 
     lawsuits argue that their claims are not governed by the VICP 
     because they allege that thimerosal is an ``adulterant'' to, 
     and not a part of the vaccines. These claims have been filed 
     against vaccine companies and, in some instances, against 
     health care providers. Thimerosal, as you know, is approved 
     for use by the Food and Drug Administration and is part of 
     the vaccine formulation when licensed; hence clarification is 
     needed to direct these claims to the VICP before tort 
     remedies can be pursued.
       Concurrently, some 500 incomplete cases have been filed as 
     placeholders with the VICP alleging that thimerosal (mercury) 
     has caused vaccine-related injuries. The medical records that 
     the Act requires upon filing do not accompany many VICP 
     petitions, including these cases. This causes problems 
     because of the time constraints spelled out in the Act. The 
     presiding special master must generally resolve a case within 
     240 days (this period excludes any period of suspension and 
     any period during which a petition is being remanded). If the 
     special master fails to issue a decision within such time, 
     the petitioner may withdraw from the VICP and pursue outside 
     litigation without affording respondent or the special master 
     any meaningful opportunity to evaluate the VICP claim.

 the ACCV believes this disturbing new mend in civil litigation could 
                           circumvent the Act

       We submit the following recommendation for action:

      recommendation on certification of completeness of petitions

       The ACCV recommends that the Secretary propose legislation 
     to amend the National Childhood Vaccine Injury Act of 1986, 
     as amended, to require special masters to issue a certificate 
     of completeness once a determination is made that a petition 
     is complete in accordance with section 2111. The time period 
     described in sections 2112(g) and 2121(b) of the Public 
     Health Service Act would begin from the date the special 
     master issues

[[Page S11179]]

     a certification of completeness. This would allow for a 
     period of 240 days excluding any period of suspension of any 
     time the petition is on remand) for the parties to consider 
     all of the evidence and for a decision to be reached. If the 
     special master fails to issue a decision within this time 
     period, calculated from the date the certificate of 
     completeness is issued, the petitioner could withdraw from 
     the VICP and pursue outside litigation.

                          senator frist's bill

       In addition to the previous request, we also ask that you 
     consider our recommendations regarding legislation introduced 
     by Sen. William Frist (R-IN), ``Improved Vaccine 
     Affordability and Availability Act'' (S. 2053). The ACCV 
     concentrated on Title II of the bill that has provisions to 
     ensure that all claims for a vaccine-related injury or death 
     are first filed with the VICP. The ACCV makes the following 

      recommendations on the ``improved vaccine affordability and 
                           availability act''

       The ACCV unanimously concurs with the following sections of 
     S. 2053 which are the same as or very similar to proposals 
     made in the ``Vaccine Injury Compensation Program Amendments 
     of 1999'' (the 1999 Amendments), which were developed from 
     recommendations made by the ACCV and sent to Congress as 
     legislative proposals by the former Secretary:
       Section 206, ``Clarification of When Injury is Caused by 
     Factor Unrelated to Administration of Vaccine'';
       Section 208, ``Basis for Calculating Projected Lost 
       Section 209, ``Allowing Compensation for Family Counseling 
     Expenses and Expenses of Establishing Guardianship'';
       Section 211, ``Procedure for Paying Attorneys' Fees'';
       Section 212, ``Extension of Statute of Limitations'';
       Section 213, Advisory Commission on Childhood Vaccines''; 
       Section 218, ``Conforming Amendment to Trust Fund 
       The ACCV unanimously concurs with the following sections of 
     S. 2053:
       Section 204, ``Jurisdiction to Dismiss Actions Improperly 
       Section 215, ``Clarification of Definition of 
        Section 216, ``Clarification of Definition of Vaccine-
     Related Injury or Death'';
        Section 217, Clarification of Definition of Vaccine''; and
       Section 220, ``Pending Actions''.
       The ACCV does not concur with the following sections of S. 
     2053 and recomends:
       Replacing Section 201, ``Administrative Revision of Vaccine 
     Injury Table'', which changes the public comment period from 
     180 to 90 days with Section 2, ``Administrative Revision of 
     Vaccine Injury Table'', of the 1999 Amendments which changes 
     the public comment period from 180 to 60 days and shortens 
     from 90 to 60 days the period that the ACCV has to review a 
     proposed rule;
       Modifying Section 202, ``Equitable Relief'', and Section 
     214, ``Clarification of Standards of Responsibility'' to add 
     ``past or in front of present physical injury''. Some 
     individuals may have sustained a vaccine-related injury in 
     the past, but do not have a present physical injury. These 
     individuals should not be prohibited from obtained relief in 
     a civil action filed against a vaccine manufacturer or 
       Replacing Section 207, ``Increase in Award in the Case of a 
     Vaccine-Related Death and for Pain and Suffering'' with the 
     2001 ACCV recommendation to increase the $250,000 benefit 
     caps for both death and pain and suffering. These $250,000 
     benefit caps should be retroactively increased since 1988, 
     and increased annually, thereafter, to account for inflation 
     using the Consumer Price Index for All Urban Workers (CPI-U) 
     as envisioned by Congress in the original National Childhood 
     Vaccine Injury Act of 1986;
       Replacing Section 210, ``Allowing Payment of Interim 
     Costs'' which does not stipulate a timeframe for when the 
     interim payment is to be made with Section 6, ``Allowing 
     Payment of Interim Costs of the 1999 Amendments, which states 
     that the interim payment can only be made after a 
     determination has been made concerning whether or not the 
     petitioner is entitled to compensation;
       Modifying Section 219, ``Ongoing Review of Childhood 
     Vaccine Data'' by deleting the phrase, ``together with 
     recommendation for changes in the Vaccine Injury Table''; and
       Replacing Section 221, ``Report'', which this language, 
     ``The ACCV shall provide the Secretary of Health and Human 
     Services with annual status reports on the Vaccine Injury 
     Compensation Trust Fund (the Trust Fund), including 
     recommendations on the allocation of funds from the Trust 
       With regard to Section 203, ``Parent Petitions for 
     Compensation'', the ACCV believes that the language in this 
     section must be modified. The issue of compensating parents 
     and third parties was raised when the original Act was 
     drafted, but the focus remained on the need for an adequate 
     compensation package that would cover the life of the injured 
     child. Over the years, a few parent or third party petitions 
     for compensation have been filed in state and federal courts. 
     However, many of the class action suits contain parent 
     petition, which prompted ACCV to revisit the issue. ACCV 
     strongly believes that parent or third party petitions for 
     compensation are more appropriately managed and 
     adjudicated through the VICP rather than through outside 
     litigation. Because of our concern for the well being of 
     the child, the ACCV recommends that the award to the 
     vaccine-injured child be separate from any award offered 
     to the parent. At your request, the ACCV will develop 
     options for such an award. In addition, this Section, as 
     is currently drafted, raises serious constitutional 
     concerns. The ACCV recognizes that the proposed provision, 
     as drafted, may need to be supplemented to: (1) address 
     potential constitutional concerns; and (2) assure that 
     such parents or third parties claims may be properly 
     administered by the VICP. Moreover, the ACCV believes that 
     further consideration should be given to review of whether 
     a third party's claim should be tied to the injured 
     party's claim in civil actions.
       Section 205, ``Application'', is a conforming charge to 
     Section 203, and therefore, the ACCV does not concur with 
     this Section until the language in Section 203 is 
     sufficiently modified.

           background on the vaccine safety datalink project

       In order to enhance the understanding of rare adverse 
     effects of vaccines, CDC developed the Vaccine Safety 
     Datalink (VSD) project in 1990. This project is a 
     collaborative effort, which utilizes the databases of eight 
     large health maintenance organizations (HMOs). The database 
     contains comprehensive medical and immunization histories of 
     approximately 7.5 million children and adults. The VSD 
     enables vaccine safety research studies comparing prevalence 
     of health problems between unvaccinated and vaccinated 
     people. Over the past decade, the VSD has been used to answer 
     many vaccine-related questions, and has been used to support 
     policy changes that have reduced adverse effects from 
       Rep. Dan Burton, (R-IN), Chairman of the Committee on 
     Government Reform, requested any and all records collected 
     under the VSD and was prepared to subpoena the records if he 
     was not given access. The CDC and HMOs, understandably, do 
     not want to give this data to Rep. Burton because these 
     records include confidential patient information. For now, 
     Rep. Burton agreed to a compromise with CDC which would allow 
     an independent researcher to replicate or conduct a modified 
     analysis of a previous VSD study, while maintaining the 
     confidential nature of the data, but Rep. Burton has not 
     rescinded his threat of the subpoena. Therefore, the ACCV 
     makes the following recommendation:

         recommendation on the vaccine safety datalink project

       The Vaccine Safety Datalink Project (VSD) is a critical 
     component of our vaccine safety infrastructure. Participation 
     by health maintenance organizations in the VSD is predicated 
     on confidentiality of patient identifiers. In order to assure 
     the continued viability of the VSD, the privacy of individual 
     patient data must be protected. Therefore, the ACCV 
     recommends that the Secretary of Health and Human Services 
     take all steps necessary to protect the privacy of patient 
     data in order to ensure the continued support and viability 
     of this important project.
       In conclusion, Mr. Secretary, we believe that the VICP 
     plays a critical role in our nation's childhood immunization 
     program, and we urge your immediate attention to our 
     concerns. The ACCV greatly appreciates your continued 
     support, and looks forward to your timely reply.
                                               Elizabeth J. Noyes,
                                                      Chair, ACCV.

  Mr. FRIST. In part it says:

       These claims have been filed against vaccine companies and, 
     in some instances, against health care providers. Thimerosal, 
     as you know, is approved for use by the Food and Drug 
     Administration and is part of the vaccine formulation when 
     licensed; hence clarification is needed to direct these 
     claims to the VICP before tort remedies can be pursued.

  That is what the underlying bill does. That is what the Lieberman 
amendment strips out.
  The American Academy of Pediatrics also wrote in support of this. 
I'll quote a final sentence from this letter of June 19, 2002:

       The AAP has reviewed S. 2053 and has the following comments 
     beginning first and foremost with our strong support that all 
     claims for vaccine-related injury or death first must be 
     filed with the VICP.
       In addition, we concur with the ACCV's most recent 
     recommendations in support of sections 204, 215, 216, 217 and 

  I ask unanimous consent to print the letter in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                               American Academy of Pediatrics,

                                    Washington, DC, July 19, 2002.
     Hon. Bill Frist,
     U.S. Senate,
     Washington, DC.
       Dear Senator Frist: The American Academy of Pediatrics 
     (AAP), and the 57,000 pediatricians we represent, greatly 
     appreciates your leadership and support of the various

[[Page S11180]]

     immunization provisions outlined in your bill, S. 2053, the 
     Improved Vaccine Affordability and Availability Act. This 
     legislation addresses several issues of critical importance 
     to the Academy.

                  vaccine injury compensation program

       Enacted in the late 1980's, with the support and guidance 
     of the AAP, the National Vaccine Injury Compensation Program 
     (VICP) has helped to stabilize what was then and appears to 
     be again a fragile vaccine market. For the past 14 years, 
     this program has been successful in its efforts to ensure an 
     adequate supply of childhood vaccines, promote more research 
     and development of even safer and better vaccines and most 
     importantly to provide for a fair and just compensation 
     program for those that suffer vaccine-related injuries. 
     However, over time, as reflected in your legislative 
     proposal, some modifications are necessary to ensure that the 
     VICP is working at it full potential.
       The AAP has reviewed S. 2053 and has the following comments 
     beginning first and foremost with our strong support that all 
     claims for vaccine-related injury or death first must be 
     filed with the VICP.
       The Academy concurs with several sections of the bill, some 
     of which were previously proposed in 1999 by the Advisory 
     Committee on Vaccine Compensation (ACCV) and you have 
     incorporated in S. 2053. These include: Sections 206, 208, 
     209, 211, 212, 213 and 218. In addition, we concur with the 
     ACCV's most recent recommendations in support of sections 
     204, 215, 216, 217, and 220. The AAP is particularly pleased 
     that S. 2053 includes language that allows compensation for 
     family counseling, ongoing review of childhood vaccine data 
     and clarifies the definition of vaccines, manufacturers, and 
     vaccine-related injury or death.
       The AAP, however, does have specific concerns about Section 
     203, ``Parent Petitions for Compensation,'' as currently 
     drafted. The AAP believes that petitions for compensation by 
     parents or third parties must be adjudicated through the VICP 
     and not through the judicial system. Moreover, in addition to 
     potential constitutional issues that this provision may 
     pose, we contend that such claims by parents should be 
     separate and apart from awards to the vaccine-injured 
     child. Although the issue of the compensation of parents 
     and third parties was initially raised during the drafting 
     of the VICP in the 1980's, it was rejected to maintain the 
     focus of the Act on providing appropriate and just 
     compensation that covers the life of the vaccine-injured 
     child. We believed then, as well as now, that this 
     approach is in the best interest of the child. The AAP 
     would suggest that consideration could be given to 
     providing, within the scope of the VICP, a provision for 
     the loss of consorrum that would be separate from the 
     award to the vaccine-injured child.
       The AAP agrees with your identification in Section 207, of 
     the need for an adjustment to the award for a vaccine-related 
     death and for pain and suffering. However, we recommend a 
     modification to this section as written. Use of the Consumer 
     Price Index (CPI) to account for annual inflation in 
     providing these benefit awards had been the original intent 
     of Congress in drafting the VICP. The AAP encourages your 
     adoption of this approach that was also recommended in 2001 
     by the ACCV. In 2002 dollars, such an award would be the 
     equivalent of an award of over $300,000.

                   meningitis and influenza vaccines

       The AAP supports your recommendation in Section 103 to 
     provide information to a variety of entities concerning 
     bacterial meningitis. We are ready to work with you to 
     implement these efforts.
       This past June, the Advisory Committee of Immunization 
     Practices (ACIP) made the decision to expand the Vaccine for 
     Children (VFC) program coverage of the influenza vaccine to 
     all healthy children aged 6 to 23 months. This will take 
     effect March 1, 2003. As physicians, we are both aware that 
     this age group has a high likelihood of hospitalization if 
     they get the flu, therefore the availability of an adequate 
     supply of the influenza vaccine is critical. In addition, 
     this expanded recommendation means that adequate funding--
     both public and private--is essential. The estimated first-
     year costs of influenza vaccination of children, according to 
     the Centers for Disease Control and Prevention, are $11.5 
     million in the VFC program, $2.6 million in Section 317 
     funds, and $1.42 million in state funds. This assumes 
     vaccination of 20% of children aged 6 to 23 months (most 
     requiring two doses), 15% of high-risk children aged 2 to 18 
     years, and 5% of children living with high-risk household 
     contacts. These costs dramatically increase as we assume 
     higher vaccination coverage rates for these populations of 
     children. We applaud your support of increasing the supply of 
     the influenza vaccine (Section 101) and encourage your 
     proactive support to ensure sufficient public and private 
     funding to meet the need and demand of the pediatric 
     population. We should expect nothing less than, at a minimum, 
     coverage by the Medicaid program for our youngest citizens as 
     is received under Medicare for our senior citizens.

                           immunization rates

       The AAP appreciates the recognition of increasing 
     immunization rates and data collection especially for 
     adolescents as well as adults included in Section 102 of S. 
     2053. However, as pediatricians dedicated to the health, 
     safety and well being of infants, children, adolescents and 
     young adults we would be remiss if we also did not encourage 
     the inclusion of all infants and children in the collection 
     of data and in efforts to increase immunization rates. We 
     have made remarkable progress. Presently, the rates of 
     immunizations for children may well be at an all time high. 
     But we still have significant disparities and pockets of need 
     among rates of immunization for racial and ethnic groups. 
     This is further exacerbated by the potential impact that 
     vaccine shortages may have on the rates of immunizations. We 
     cannot allow complacency or less vigilance of rates for 
     infants and children at this critical time.

                             vaccine supply

       Although pediatricians over the years have encountered 
     brief childhood vaccine shortages nothing compares to the 
     most recent situation because of both the number of different 
     vaccines involved and the scarcity of the available supply. 
     For most of the first half of this year, the shortage of 
     vaccines included eight of the 11 diseases preventable 
     through routine vaccination of children. In many instances 
     these shortages and delays by necessity resulted in temporary 
     changes to immunization entry requirements for day care and 
     school. Until just recently the longest-standing significant 
     shortage was with the Td vaccine that began about a year ago 
     and affected the ability to give teens the booster Td they 
     need. Currently, the most serious shortage continues to be 
     with the new 7-valent pneumococcal conjugate vaccine (PCV7, 
     Prevnar). The AAP supports and appreciates the recognition in 
     Section 104 of the need to maintain a sufficient vaccine 
     supply. Moreover, we also support the discretionary authority 
     of the Secretary of Health and Human Services to develop a 
     national vaccine stockpile for a minimum of six months and as 
     long as 12 months. This stockpile should include all of the 
     routine recommended childhood vaccines and certain other 
     vaccines that may be critical to the public's health such as 
     Hepatitis A and meningococcal.
       Thank you for your commitment to an immunization strategy 
     that promotes the safety, efficacy as well as the adequacy of 
     the supply of vaccines for the nation. We look forward to 
     working with you as this legislation moves forward.
                                                  Louis Z. Cooper,

  Mr. FRIST. I will read from a statement by Dr. Timothy Doran, 
testifying on behalf of AAP, to the Health, Education, Labor and 
Pensions Committee earlier this year on behalf of the American Academy 
of Pediatrics, relating to these provisions. He testified it was 

     to preserve and strengthen the liability protections for 
     consumers, manufacturers and physicians through the Vaccine 
     Injury Compensation Program. The VICP has been an integral 
     part of maintaining the vaccine market. Enacted in the last 
     1980's with the support and guidance of the American Academy 
     of Pediatrics the VICP has helped to stabilize what was then 
     and appears again to be a fragile vaccine market. We 
     reiterate our strong support that all claims for vaccine-
     related injury or death must be filed first with the VICP. We 
     appreciate the intent of the legislative proposal put forth 
     by Sen. Frist and others to craft appropriate modifications 
     as necessary to ensure that the VICP is working to its full 

  Those are the provisions in the underlying bill. That is exactly what 
is in the homeland security legislation that would be stripped out by 
the Lieberman amendment.
  The effect of these provisions in this bill is important because of 
the new era of bioterrorism, not knowing the direction the world is 
moving, recognizing we are unprotected today from smallpox. We now have 
a tremendous initiative by the administration, the private sector, and 
the public sector. We have better coordination and better public health 
infrastructure, better communication, better coordination. But at the 
end of the day, if smallpox is in your community and you know it, you 
know where to go, that is good, but unless you have a health care 
provider to put it on your arm, you are not protected. We do not know 
when it will hit again.
  The fact the Advisory Commission on Childhood Vaccines endorses these 
provisions is important. The fact that the American Academy of 
Pediatrics endorses these provisions is also important. This shows they 
are not just pulled out or from a single company or they have not been 
thought through by both trial lawyers and patients and families and 
providers. We have heard the claims that these are not relevant to the 
underlying bill. But at the end of the day, in this world where we are 
at risk from bioterrorism, germs, viruses, I guarantee, based on 
everything I know and everything I have read, it is critical we 
increase our protection for these agents. That is what the underlying 
bill does.
  The liability protections are important for health care providers. I 

[[Page S11181]]

also, for the facilities where they are administered and the 
manufacturers. If we allow out-of-control lawsuits to drive people out 
of the business of making these vaccines, no matter how good our 
research is, we will not be able to make vaccines which are critically 
important. We started with 12 companies and we are now down to 4 
companies in the United States who make the vaccines. We have no 
guarantee they will stay in the business. They are unlikely to stay in 
the business if the huge lawsuits hit them in a way that simply is not 
favorably judged.
  The provisions in the underlying bill only restate the original 
intent of Congress. They restate current law that individuals claiming 
injury for covered vaccines must first file for compensation under the 
vaccine injury compensation program, the VICP. These sections state 
what really should be obvious. A vaccine itself is the sum total of all 
of its parts as determined by our Food and Drug Administration, and 
that the manufacturers of vaccines include those who contribute to each 
of these various components. We have the vaccine, the components, the 
manufacturers who make the vaccine, and also the people who make the 
  Nothing in this language takes away one's right to sue. These 
provisions simply clarify and restate current law which requires all 
claims of injury related to a vaccine covered by the compensation 
program must first go through the compensation program before a lawsuit 
can be filed. There is much more that needs to be done, I believe in a 
more comprehensive way, but these provisions take the first step in a 
timely way, when time certainly matters.
  In the long run, it is critical to expand the vaccine market for a 
whole range of microorganisms we are not protected from. We need to 
provide greater access to their vaccines. We need to be able to look 
the parents in the eye and say, when you take your child to the doctor 
or the public health center, those children, as well as all Americans, 
are not going to be in some way turned away by a barrier that we failed 
to address in the Senate. That is why a vaccine provision is necessary, 
is necessary now, is necessary in this homeland security bill.
  I yield the floor.
  Mr. REID. Mr. President, we have a consent in order for debate only 
until 1:30 p.m. There are numerous Senators who wish to speak. I ask 
unanimous consent that the order for debate only be extended until 3 
o'clock today.
  The PRESIDING OFFICER (Mrs. Lincoln.) Without objection, it is so 
  The Senator from Rhode Island.
  Mr. REED. Madam President, I rise to discuss the amendment proposed 
by the Senator from Connecticut, Mr. Lieberman. First, I commend the 
Senator from Connecticut, Mr. Lieberman, not only for his amendment but 
also for his work on this very important legislation. He introduced 
this legislation months ago, even before the administration recognized 
the need for a homeland security bill. He has brought to the floor a 
very well-crafted, well-balanced, thoughtful piece of legislation, a 
product of deliberation over many months. It is disheartening at this 
moment to see a piece of legislation that has arisen in the last couple 
of days, almost 500 pages long, with greater omissions but also 
including what I argue in certain cases to be are extraneous 
  One of the provisions at issue is the of curtailing the ongoing 
discussion about the scope of the vaccine injury compensation program. 
We have a situation where vaccine manufacturers included a 
preservative, Thimerosal. This preservative has been alleged to have 
caused medical harm; it has not been scientifically proven. The Senator 
from Tennessee has indicated the Institute of Medicine has suggested 
there is no causal link between Thimerosal and autism or other 
childhood diseases. Yet there is ongoing litigation to determine if 
this, in fact, is a causal factor.
  In a homeland security bill designed to focus our attention on the 
most urgent and dramatic threats to the United States, we find a very 
transparent attempt by at least one manufacturer to curtail potential 
liability because of their products. Frankly, there is no other 
rationale for putting this one provision in the legislation. It is 
inappropriate to be included in this legislation. It certainly does not 
raise the urgency of the issues the Senator from Tennessee discussed in 
terms of smallpox protection or potential for a mass casualty crisis 
because of the use of a biological agent.
  In point of fact, Thimerosal was withdrawn from use in vaccines in 
1999. So this is not a situation where we have to act today, in this 
very critical legislation, to ensure that manufacturers will continue 
to use this material. In fact, quite the contrary, this material, 
although no one has established a definitive link to any particular 
disease, has been voluntarily withdrawn from inclusion in vaccines.
  So what we have is a situation where allegations have been made by 
parents of children that this preservative caused a disease in their 
child. And as the Senator from Tennessee rightly pointed out, in 1987 
Congress enacted the Vaccine Injury Compensation Program as a no-fault 
alternative to the tort system for resolving these types of claims. The 
procedure for the compensation program is that you must first go 
through this system of evaluation of your claim and determination of 
award, if any, before you are allowed to pursue your claim in court.
  What has occurred in this situation is that families have alleged 
that this particular element, Thimerosal, is not covered under the 
Vaccine Injury Compensation Program because, even though it is an 
ingredient listed on the label, was a contaminant or adulterant and, as 
a result, is not included in the scope of the VICP. That is a legal 
issue. That legal issue is being decided as we speak.
  In fact, the VICP has requested that the Special Master of the U.S. 
Court of Federal Claims consider this question, and the Special Master 
is currently deliberating the issue, but has not yet ruled.
  So here we are, at the 11th hour of this legislative session, trying 
to pass a homeland security bill. And what we find, mysteriously and 
surprisingly, is a provision in the bill that would short circuit the 
ongoing litigation, that would thrust our view on the courts. And, 
frankly, I suspect the Special Master has a much more attuned notion of 
what are the permutations, what are the consequences, what are the 
legal precedents of concluding whether or not Thimerosal is covered 
under the VICP, than we have on this floor.
  Again, this is reduced quite easily, quite simply, quite 
transparently, to an attempt by an industry to insert, within a bill 
that is deemed to be absolutely necessary to pass, a provision that 
short circuits all of the legal discussion and potentially short 
circuits the rights of parents to recover the full compensatory and 
other damages that they deserve because of their child's illness.
  None of this has been settled in terms of scientific cause and 
effect. But procedurally I think we have to, in short, allow the 
process to take place. It is not uncommon--in fact, it is quite 
common--that there are disputes about the interpretation of a 
particular statute, the coverage of a particular statute. But we 
seldom--unless of course there are very well connected and influential 
proponents--we seldom pick out these items for legislative relief prior 
to any type of judicial conclusion. So I suggest, particularly with 
regard to this matter--the striking of these specific provisions--is 
  Indeed, one wonders why we are spending time debating this issue on a 
homeland security bill when in fact there are so many other needs that 
deserve our attention and deliberation. Many of my colleagues have 
suggested that, not just with regard to what is in this bill but, 
frankly, the need to support more vigorously those programs and 
policies that we already have in place might take precedence over 
simply recreating and reshuffling the deck in terms of the organization 
of the Federal Government with respect to homeland security.
  I urge my colleagues to support Senator Lieberman's efforts, at least 
to eliminate these items which are entirely extraneous to the homeland 
security bill, and in fact fall far from the urgency that is so 
apparent, appropriately, in the homeland security bill.
  A final point I should say, and I think my colleague from Tennessee

[[Page S11182]]

said it so well, is that the issue of access to vaccines is a very 
critical issue that warrants our close attention. I was fortunate 
enough to chair a hearing of the Senate Health, Education, Labor and 
Pensions Committee in which the General Accounting Office testified 
about existing obstacles to a dependable and adequate supply of 
vaccines for children. The Senator from Tennessee, with his unique 
perspective as a physician, not only has been helpful but has taken a 
very prominent role, working with others and myself, in developing a 
comprehensive approach. That comprehensive approach might require an 
examination of the VICP program. It certainly might also require 
vaccine stockpiles, notification by manufacturers, if they chose not to 
produce a vaccine, so that our public health authorities know prior to 
the onset of a particular shortage that you will have one, two, three, 
or four manufacturers in the market to meet the demand.
  So I would argue that a comprehensive approach to maintaining the 
supply of vaccine is important. The Senator from Tennessee has been 
working on it. I have been working on it. But that is not what we are 
talking about this afternoon. We are not talking about protecting the 
American public in a systematic, comprehensive way by ensuring that 
vaccines are available. What we are talking about today is a special 
interest provision that short circuits ongoing litigation involving a 
product that is no longer being used as a preservative. It is not about 
what we need to do today to protect ourselves from the very real threat 
of bioterrorism. Frankly, my assumption was, when we came to the floor 
to talk about the homeland security bill, we would be talking about 
what we need to do today to protect this country in the future.
  So I urge my colleagues to support Senator Lieberman, to recognize 
this bill would be much improved by adopting the provisions he has 
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. VOINOVICH. Madam President, we have heard hours and weeks of 
debate on the Senate floor on this legislation. Among the principal 
arguments of some of the opponents of this bill is that President Bush 
and his administration cannot be trusted. I think the election last 
week proved that many Americans do believe our President can be 
trusted. He is a man of character. He is a man of integrity. He says 
what he means, and he means what he says.
  I think an example of that was--if you recall, there were many people 
who were opposed to the passage of the Iraq resolution by the Senate. 
Many of the calls I got in opposition to it were from folks who 
believed the President, if the resolution passed, would peremptorily go 
into Iraq and take out Saddam Hussein.
  I think all of us were quite impressed with his patience and the 
diplomacy of Secretary of State Powell that somehow was able to get 
through a very strong resolution in the Security Council that will 
finally enforce Iraq's compliance with those 16 previous resolutions of 
the United Nations.
  I think we do have a President who can be trusted. I think that is 
the basis of this legislation. It is not perfect, but I am confident it 
will not be abused. It is not, as some say, an encroachment on 
legislative branch prerogatives, as I have heard some contend.
  Madam President, I rise today to talk about an issue of critical 
importance to our Republic, and that is the urgent need for Federal 
civil service reform. I came to this floor earlier this fall to discuss 
how civil service reform can improve our ability to secure the 
homeland, and I rise again today because this issue remains at the crux 
of our renewed debate on the homeland security legislation.
  As a member of the Governmental Affairs Committee and chairman and 
ranking member of the Oversight of Government Management subcommittee, 
I have worked to focus the spotlight on this issue since I came to the 
Senate 4 years ago. During the course of 12 hearings and numerous 
meetings with national leaders in management and public policy, it 
became crystal clear that we were in the midst of a human capital 
crisis in the U.S. Government. Moreover, it became clear that this 
crisis is growing and will only get worse unless this Congress acts 
decisively to address it.
  Some people still ask what the human capital crisis is, how serious 
is it, and whether it really threatens the operations of the Federal 
Government. The human capital crisis is, simply stated, the inability 
of the Federal Government to properly manage its workforce. Robust 
personnel management includes the ability to recruit the best 
candidates, hire people in a timely manner, award performance bonuses 
and other motivational tools to provide training and professional 
development opportunities and the flexibilities to shape a balanced 
workforce. Good management includes the flexibility to act quickly and 
to compete as an employer of choice in this fast-paced 21st century 
knowledge economy.
  Madam President, I believe that if a Federal agency or department is 
important enough to receive the hard-earned tax dollars of my 
constituents and yours, we have a moral responsibility to see to it 
that the people's money is spent wisely. Outdated personnel practices 
and lack of training not only put agencies at risk of not being able to 
fulfill their mission and providing needed services to the American 
people, they also represent wasteful spending. We simply must provide 
the flexibility agencies need and give them the right tools to do their 
  Within 2 years, more than 50 percent of the 1.8 million person 
Federal workforce will be eligible for early or regular retirement. It 
is virtually impossible to predict accurately the amount of experience 
and institutional knowledge that is literally going to walk out the 
door by the end of the decade. That is why it is not only right to 
focus attention on our human capital crisis, it is essential.
  Unfortuantely, until recent months, very few Members of Congress have 
paid much attention to this growing set of challenges.
  Now, as the Senate is considering legislation designed to reorganize 
the Federal Government in a way that will help secure our Nation 
against future terrorist attacks, civil service reform is front and 
center. This issue, which for years has not been substantively 
addressed, is of paramount importance in the consideration of the most 
significant government reorganization to take place in our Nation in 
half a century. It's about time.
  Congress last enacted major civil service legislation for the entire 
Federal Government 24 years ago in 1978. To operate effectively, the 
Federal Government cannot afford to revise its personnel laws only 
every quarter century. So much has changed over the years, and changing 
times require new thinking and new laws--policies that allow 
flexibility in our Federal government's civil service system.
  During the 107th Congress, I have worked with some of the Nation's 
premier experts on public management to determine what new 
flexibilities are necessary to create a world-class 21st century 
Federal workforce. These include: the Council for Excellence in 
Government, Partnership for Public Service, Private Sector Council, 
Brookings Institution, National Academy of Public Administration, and 
the Volcker Commission; Administration officials including OPM Director 
Kay James, and former OMB Deputy Director and current NASA 
Administrator, Sean O'Keefe; and representatives of federal employee 
groups like Bobby Harnage of the American Federation of Government 
Employees, Colleen Kelley of the National Treasury Employees Union, and 
Carol Bonosaro of the Senior Executives' Association. I am grateful for 
the respective and recommendations all of these groups provided and we 
drafted our legislation based on their insights.
  Our bill, S. 2651, the Federal Workforce Improvement Act of 2002, 
which I introduced with Senators Thompson and Cochran, is designed to 
get the right people with the right skills in the right jobs at the 
right time. It is a consensus package of human capital reforms that I 
believe will have a positive impact on the Federal Government's 
personnel management.
  Working closely with Senator Akaka, I successfully amended key 
provisions of this bill to the homeland security legislation during its 
consideration by the Governmental Affairs Committee in July. I am 
grateful for the support that Senator Akaka provided as we adopted 
those important government-

[[Page S11183]]

wide personnel flexibilities. I only wish we had put more of S. 2651 in 
the homeland security bill. We need to get it all done.
  Next year, I intend to introduce these provisions again, as well as 
other human capital legislation that was not enacted this year. For 
example S. 1817, which would make Federal student loan forgiveness 
benefits tax-free; S. 1913, the Digital Tech Corps Act, which would 
establish a public-private exchange program for IT professionals, and 
S. 2765, the Federal Law Enforcement Pay Equity and Reform Act, which 
would create an employee exchange program between Federal agencies that 
perform law enforcement functions and state and local law enforcement 
agencies. These bills would strengthen the performance of our Federal 
workforce throughout the government.
  In the 108th Congress, I also intend to take a closer look at 
compensation issues, especially for the Federal law enforcement 
community. Serious recruitment and retention challenges have been a 
problem at agencies such as the FBI and other law enforcement agencies 
for a long time and we simply have to address this issue.
  The governmentwide human capital provisions we have already included 
in the homeland security legislation will have an impact not only on 
the new department, but on all Federal agencies. Our language will help 
the Federal Government begin to address its human capital challenges--
challenges that extend far beyond the corridors of the proposed 
Department of Homeland Security.
  The language does the following:
  It creates Chief Human Capital Officers at the Federal Government's 
24 largest departments and agencies--officials who will have 
responsibility for selecting, developing, training and managing a high-
quality workforce;
  And, it establishes an interagency Chief Human Capital Officers 
Council, chaired by the OPM Director, to advise and coordinate the 
personnel functions of each agency and meet with union representatives 
at least annually.
  In other words, we are giving human capital a much higher priority in 
the Federal Government, just as it is given in most corporations that 
are successful.
  It requires OPM to design a set of systems, including metrics, for 
assessing agencies' human capital management, something that has been 
largely ignored;
  It reforms the competitive service hiring process, allowing agencies, 
consistent with merit principles (including veterans' preference), to 
use an alternative category ranking method for selecting new employees 
instead of the ``Rule of 3,'' making the process more efficient and 
fair--a practice that has been very successful at the Department of 
Agriculture for the past decade;
  It provides government wide authority for offering voluntary 
separation incentive payments and voluntary early retirement 
(``buyouts'' and ``early outs'') for the purposes of workforce 
reshaping, not downsizing. This authority, which I was able to secure 
with legislation three years ago, is currently being used effectively 
on a limited basis at the Department of Defense;
  It lifts the total annual compensation cap for senior executives, 
allowing performance bonuses to be paid in full in a single year;
  And, it reduces restrictions on providing academic degree training to 
Federal employees, thereby emphasizing the importance of individual 
professional development.
  All of these things I just talked about are not only going to impact 
the homeland security department, but they are governmentwide. All 
agencies will be able to take advantage of these provisions in the 
homeland security bill.
  In light of the fact that there has not been government-wide civil 
service reform in a quarter century and, as the Hart-Rudman Commission 
noted just last year, personnel is the basis for maintaining national 
security, it is absolutely appropriate that this legislation be 
included in the bill to create the Department of Homeland Security. In 
fact, in testimony before the Subcommittee on Oversight of Government 
Management, former Defense Secretary and member of the Commission, 
James Schlesinger noted:

       . . . it is the Commission's view that fixing the personnel 
     problem is a precondition for fixing virtually everything 
     else that needs repair in the institutional edifice of U.S. 
     national security policy.

  If we do not fix the personnel problem, we are not going to be able 
to fix anything else that is wrong with the system.
  I thank the leadership on both sides of the aisle for including these 
important provisions in the compromise language we are considering 
  The Homeland Security Department is not the first--and not the last--
agency that needs to have greater flexibility. Flexibilities and 
reforms, similar to those proposed in the compromise language for the 
Department of Homeland Security, which I will describe in a moment, are 
needed throughout the executive branch.
  I would like to take a few moments now to discuss the personnel 
provisions in the compromise language that apply specifically to the 
new department. As I said, I have worked with Republicans and Democrats 
on these provisions and I believe this language will provide the 
Department with the tools it needs to get the job done, and at the same 
time will respect the rights of those union workers being transferred 
into the new department.
  First, the compromise language includes the House-passed language 
proposed by Representatives Connie Morella and Chris Shays with an 
additional provision that I have recommended. This language would, for 
the first time, limit the current authority of the President to exclude 
an agency or agency subdivision from participation in a collective 
bargaining unit.
  Under current law, the President may exclude participation in a 
collective bargaining unit upon determining that the entity has as a 
primary function intelligence, counterintelligence, investigative or 
national security work and that permitting the entity to have 
collective bargaining rights would be inconsistent with national 
security requirements and considerations.
  The compromise language would limit the President's current authority 
only with regard to the new department. It would prohibit the President 
from using the exclusionary authority unless the mission and 
responsibilities of a transferred agency materially change and a 
majority of the employees within such an agency have as their primary 
duty intelligence, counterintelligence, or investigative work directly 
related to terrorism. So in effect, we have limited the President's 
authority to exclude employees from union membership.
  The language does provide, however, that the President could waive 
the above limitations on his authority if he determines in writing that 
their use would have a substantial adverse impact on the department's 
ability to protect homeland security. If he does this, I presume he 
will do it under this provision.

  We have also added some language I have proposed requiring that if 
the President does not execute his authority under the Morella 
language, he must notify Congress at least 10 days prior to the 
issuance of his written order. This will bring the light of day into 
his decisionmaking process. I don't expect him to do it, but I think 
that is one way we can guarantee that such action will not be arbitrary 
and capricious.
  The second compromise provision in this bill was proposed by 
Representatives Jack Quinn and Rob Portman over in the House. I want 
everyone to understand this so they can see how much more limited this 
bill is than what the President originally sent us.
  That initial proposal featured a personnel system that was similar to 
the one established last fall for the Transportation Security 
Administration, which waived most of title 5. Of course, the Homeland 
Security Department, the President realized Congress would flesh out 
his proposal, and that is what happened. This legislation we are 
considering would create a new agency under title 5, allowing 
modifications in only six areas.
  The House-passed version is less flexible than what the 
administration wanted, but it is designed to deal with the personnel 
flexibility sought by the President, and to address the collective 
bargaining rights that many of our colleagues seek to protect, 
including me.

[[Page S11184]]

  This language would preserve employee rights, including hiring and 
promotion based on merit and equal pay for equal work, and would 
protect employees from improper political influence and reprisal for 
whistleblowing. Employees would still be protected from prohibited 
personnel practices, such as illegal discrimination, politicized hiring 
or promotion processes, and violation of veterans' preference 
  Furthermore, employees would still have the right to organize, 
bargain collectively, and participate through labor organizations of 
their own choosing in decisions that affect them.
  The compromise language requires the new Department collaborate with 
unions and other employee organizations in creating its personnel 
system. The language also improves the arbitration process by ensuring 
both employees and management concerns are fully and publicly vetted.
  If a collective bargaining unit disagrees with a management proposal 
related to one of the 6 areas subject to modification, the union 
representative would have 30 days to consult with agency management on 
rule changes and offer recommendations. If agreement is not reached, 
the Secretary of Homeland Security could declare an impasse and submit 
the dispute to the Federal Mediation and Conciliation Service, a 
process that could last an additional 30 days. At the conclusion of 
that period, the Secretary could proceed with the proposed changes, 
regardless of the mediator's recommendations.
  Again, this is very much like the language I added requiring the 
President to make public his decision if he waives the Morella 
language. In this case, at the beginning of the 30-day arbitration 
period, the differences between collective bargaining unit employees 
and management would be established so everyone would know what the 
differences are. In other words, if there is a difference of opinion, 
it is aired publicly. It is not going to be hidden somewhere. We are 
all going to know about it. The American people will know about it, and 
Congress will know about it.
  After the 30-day period, the differences would be resolved. At the 
end of the total of 60 days, it is over.
  I would have been open to more robust participation of the Federal 
Mediation and Conciliation Service or another third-party mediator in 
resolving disagreements over title 5 modifications. However, the system 
established by this legislation is a compromise, and I support it.
  The real test of this language is going to be how the administration 
handles work rule changes, whether or not disputes are handled openly, 
and the unions' concerns treated fairly. It will be imperative for the 
administration to demonstrate its commitment to an open and fair 
process in a spirit of cooperation rather than confrontation with the 
  If we do not resolve some of the differences between the 
administration and the unions, the chances of this new agency being 
successful are remote. And I have encouraged the President to meet with 
Bobby Harnage and with Colleen Kelley.
  As a mayor and Governor, I went through reorganizations, and I 
learned that you cannot get it done unless you have built trust with 
your labor union members.
  I would like to make one final observation on this bill before us 
today. We should not sacrifice the good for the perfect. I recognize 
Members on both sides of the aisle have some concerns about certain 
provisions. So do I. For example, I disagree with the language that 
will transfer the first responder program from its current location in 
FEMA to the new Department's Border Security Directorate rather than 
the Emergency Preparedness and Response Directorate. That does not make 
sense to me. Nevertheless, the legislation before us to create a new 
Department of Homeland Security, I think, overall, is a good bill, and 
I intend to vote for it.
  I have been one of the leaders on civil service reform during the 
last two sessions of Congress. I believe I have probably dedicated more 
time than any other Senator to addressing the Federal Government's 
personnel needs. I have tried to raise the profile of this issue, and 
then to work in good faith with all interested parties to develop 
  Based on my work, I want my colleagues to know I feel that the 
personnel provisions in the compromise language can go a long way 
towards putting personnel management in the executive branch back on 
  I urge the passage of this very important bill. We have to get on 
with it. It is going to take time to establish this new department. We 
have to secure the homeland. We need to get going.
  I thank the Chair.
  The PRESIDING OFFICER (Mr. Corzine). The Senator from West Virginia.
  Mr. ROCKEFELLER. Mr. President, I compliment the Senator from Ohio 
for his very thoughtful and important comments in which he reached to a 
deeper level, which I was going to do, but now I do not feel the need 
to because he spoke of the importance for good working relations 
between management and those who work with management, particularly in 
a field as important as homeland security.
  I rise today to lend my support to the Homeland Security Act. I thank 
Senator Lieberman for taking really the lead, before anybody else did, 
on this issue and for his tireless work to bring the new Department to 
the point it is today. I think it is a remarkable feat on his part.
  I also would be remiss in not thanking my senior colleague from West 
Virginia, with whom I disagree on this important issue, but who has, 
nevertheless, led the opposition with clarity, with conviction, and 
  In the end, I am glad it now appears we will be able to answer the 
President's call to pass this legislation, and to do so before we 
adjourn this session.
  The tragedies of September 11, and the continuing terrorist threat to 
our Nation, demand powerful and decisive action from us and from the 
  He has asked this Congress, after the leadership of Senator 
Lieberman, to support him by creating a new Department of Homeland 
Security. I think we should do that. The President believes this 
massive reorganization of government, combining our currently 
fragmented homeland security functions into a single Cabinet-level 
agency, makes sense.
  Anybody who thinks we are prepared, no matter what reports you read--
including the most recent ones--that we are prepared to handle attacks 
of any sort, is just greatly wrong. In each of our individual States, 
as you look at hospitals and police departments, and all the rest, we 
know that is the case.
  So I think a single Cabinet-level agency is crucial in providing this 
Nation and its citizens with the protection they deserve.
  I agree this historic reorganization is a bold and necessary step 
that we, as lawmakers, must take, quite frankly, in order to be 
faithful to our first and foremost duty as lawmakers--I do not think 
this is generally understood by the American people--because our first 
and foremost duty as lawmakers is the guaranteeing of the safety of 
people we represent in our individual States, and also throughout the 
  I hope all who are present will recognize this is but a first step. 
This is going to be an extraordinarily complicated evolution.
  When the Aviation Security Act was passed not very long after 
September 11, it became the assumption of the American people that all 
airport security would be in place, ready to go, with all of the 
equipment and people trained, within a matter of months. I said from 
the very beginning it was probably a matter of 3 to 4 to 5 years before 
we would arrive at a point where we had the kind of aviation security, 
the training, personnel, and the equipment that we needed.
  People have to understand all of this is going to take time, but you 
can't start the clock running unless you pass a bill to get homeland 
security going.
  I don't think anybody should be under the illusion that this new 
Department will solve all of our security problems at home. I hope we 
will remember the lessons of the Goldwater-Nichols Act of 1986, which 
basically made the largest previous reorganization of Government--that 
is, the creation of the Department of Defense in 1947--a working 
reality. I strongly believe this new Department of Homeland Security 
will be a work in progress; that the public has to understand it is a 
work in progress; that you cannot take 170,000 people, meld them 
together, create a whole new series of

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layers of intelligence agencies, and expect them all to work very 
crisply together, when they don't work crisply together now. 
Nevertheless, there needs to be a central point. I believe in that 
  So with the understanding it is a work in progress, we will, 
therefore, have to shepherd its ongoing development, and we will.
  Although the homeland security act should not be mistaken for the 
definitive answer for all of our security woes, I believe it is a 
strong piece of legislation with a lot of potential to serve its 
purpose and all of us and the people we represent well.
  The Department we are creating is strikingly similar to the original 
proposals both the White House and Senate introduced last summer. It 
has been some time since then.
  The new Department will combine the functions of 22 Federal agencies 
and subagencies. Again, this will be complicated. There will be all 
kinds of problems. We have to assume that. That is not a bad thing. 
That is the evolution of anything that large that takes place, whether 
it is in business or in government; change, reorganization of that 
sort, does not happen quickly.
  By placing these agencies and all of their people in one new 
Department, we should foster much better communication--it will take 
time--eliminate internal redundancies--that will take time--and greatly 
improve our ability to detect, respond to, and recover from future 
actions from terrorism.
  The new Department is intended to be a cooperative environment in 
which intelligence from all sources is brought together, analyzed, and 
then used more efficiently than in the past, guiding the customers, as 
the term is used, which is the President and his National Security 
Council, allowing us a much clearer view of all threats from whatever 
source against America.
  The Department is charged with carefully coordinating with State and 
local governments, none of which is prepared at this point to handle 
what could very well and probably will be confronting them. As well, I 
might say, private industry faces this same challenge. Some have 
responded, most have not, partly because they don't know what to do. 
Secondly, the economy is not strong, and they don't feel they can do 
that now. But their condition will be much worse if they don't. So to 
them we have to collect and pass along threat information. They have to 
respond. This whole system has to begin to function in a rational way.

  This is the most serious subject we could be discussing in the Halls 
of this Congress. Border security should be greatly improved under the 
new agency. Our ability to prevent chemical and biological and 
radiological and nuclear threats may be stronger than ever before. We 
have to make sure that is the case.
  In the event the horrors of terrorism, in fact, visit our shores 
again, as I think they will, the new Department should be better 
equipped to respond with disaster relief.
  However, we must not forget that many of the assets that we will need 
to respond to disaster or terrorism will continue to reside in agencies 
which are outside of the homeland security bill. The one that comes to 
my mind is, of course, the Veterans' Administration, which is the 
largest health care system in this country. That whole system is going 
to have to be not incorporated in the bill but incorporated into the 
process which I hope this bill will engender of its own force and 
  I have confidence in this act. I nevertheless would like to go on 
record as saying that clearly it does not do everything that I and many 
of my colleagues, including the Chair, to whom I am particularly 
grateful, wanted. I regret that we were unable to work effectively to 
create a new Department where dedicated employees are guaranteed the 
civil service protection to which they are entitled. However, having 
said that, I think that, as the Senator from Ohio said in his very 
powerful and deep speech, I have to believe our President will act 
wisely, partly because of the light that will be on him, partly because 
of the situation, partly because of the need for workers to be happy 
and to be doing their work well, assuming the flexibility that we give 
him only when he really needs that, and that he will be wise in that 
  So with this act, Congress and the White House have cooperated to 
make a powerful statement to our citizens as well as to our enemies. We 
will work together to ensure that the American people are as free as 
possible from terror and as free as possible from the fear of 
  I am very thankful to have been able to play a role in the creation 
of the Department. I look forward to playing a continuing role, as I 
indicated, in watching this development in sort of a congressional 
oversight mode.
  I ask my colleagues to join with their support of this homeland 
security act.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Mr. President, I take to the floor to talk about where we 
are in the homeland security bill, and to call attention to some 
special interest provisions added to this bill in the hope that the 
American people will take a look at what is happening to their country.
  As Senator Voinovich has stated, Osama bin Laden is still alive. 
While we cannot be positive of that, it appears that he is still alive. 
Certainly, al-Qaida is alive and certainly al-Qaida is working full 
time to hurt us--meaning the American people. That we know. The world 
is a terribly dangerous place.
  Taking care of America is crucial. That is why I was so stunned and 
upset when the President refused to spend $5.1 billion that this 
Congress gave him for homeland security to ensure that our ports are 
more secure, to ensure that our nuclear power plants are safe, to 
ensure that our chemical plants are safe, to ensure that our airports 
are safer, and to speed up development of necessary vaccines. I was 
stunned when the President did what he did.
  I was also stunned when he opposed the idea of making the Homeland 
Security Department a Cabinet position. Stunned. Only after Senator 
Lieberman and his committee had voted out a bill--at least the 
Committee Democrats did--did the President decided he wanted to support 
this concept.
  We know one thing about September 11th. We know that the CIA and the 
FBI were not speaking to each other. We know that they were not 
communicating with each other. And yet there is not one thing in this 
homeland security bill that addresses that issue.
  The homeland security bill tinkers around the edges with creating new 
ways for the intelligence community to let the Homeland Security 
Director know what is happening. But we do not get to the heart of that 
cultural problem that exists between these agencies. That is amazing to 
me, since we know one thing--that there was a breakdown in 
communication between these two agencies.
  I also happen to believe that massive reorganization is generally an 
invitation to chaos and more bureaucracy. I began my political career a 
long time ago in a small county of about 200,000 people. We found that 
when you combine agencies in the name of trying to be efficient, 
oftentimes you have less accountability. That is what is happening 
here--combining all of these agencies, with some 170,000 people, 
creating all kinds of subheads, and so on and so forth.
  So I am very worried. I hope to be proven wrong because this bill 
will pass, but I am worried that there will be less accountability 
rather than more. That is why I supported the Byrd amendment, way back 
when we started this debate, which would create a Cabinet level 
Homeland Security Director and a streamlined Homeland Security 
Department, with people who would be held accountable, and with a way 
for the Congress to continue to play a role as we develop this very 
important agency. I thought that would have been the way to go. I was 
proud to stand with Robert Byrd on his amendment.
  I happen to believe in my heart of hearts that the President's change 
of heart about the need for a homeland security department had a lot to 
do with the fact that he is very interested in stripping away worker 
protections. I have to believe that deep in my heart. Why do I say 
that? Because of his actions. Of the 170,000 people in the new 
Department, only 40,000 of them have worker protection, that is all. 
There are people at the bottom of the barrel,

[[Page S11186]]

in terms of pay; the secretaries, the janitors, the file clerks. I 
don't understand--and I have said this before on the floor of the 
Senate--why a President who calls himself ``compassionate'' would want 
to take away the most minimum of rights from such people, endanger 
their level of health care. I don't understand why this President would 
have held up this bill all this time for that.
  Now there is a compromise. I am glad a few more protections are 
added. That is good. But I don't know how a person who says he is 
compassionate could go after people who have the most minimal job 
protections. They don't have the right to strike. No Federal employee 
has the right to strike. They can scarcely collectively bargain given 
the provisions of this bill. That, to me, is a sour note in this debate 
and continues to weigh on my heart--that maybe this President changed 
his mind, in part, because of this ``opportunity'' to take after these 
workers. It is really a sad thing to me.
  If we look at the economy today--and I know my colleague from West 
Virginia gets this because he talks to me about it all the time--it is 
a tough economy we have. The fact is, in the last couple of years, as 
the President came into power, we have seen a tremendous loss of 
private sector jobs. More jobs have been lost than at any time in 50 
years. We know what is happening to people's retirement security 
because of the stock market, with the worst performance in more than 50 
years. People are frightened. So why do you go after 40,000 workers and 
give them insecurity?
  We heard yesterday that the President is going to move more than 
800,000 jobs into the private sector from the Federal Government--more 
than 800,000 jobs. At a time when people are feeling insecurity, he is 
going to throw them out into the marketplace where they will have very 
little security. There is something missing here that is upsetting to 

  So here we are. In my opinion, we have a bad choice to make when we 
finally vote on homeland security. I will make what I consider to be 
the best of that bad choice--a choice between no homeland security bill 
and one that I believe was thrown together in a way that is going to 
make it less accountable and is going to hit a lot of bumps in the 
road. Taking FEMA and putting it in there--what will happen when we 
have an earthquake in California? What is going to happen with the 
Coast Guard when they have to do search and rescue? These are troubling 
questions to me.
  We will have that choice to make. That is life. We often don't have 
great choices here, and we will make that decision. But one thing I 
know I am going to vote for with great pride on Monday is the Daschle-
Lieberman amendment.
  I see a couple of colleagues on the floor who care about these 
issues, and I want to recognize my friend from Michigan, who called us 
together today to explore the ramifications of a particular rider that 
was added in the dead of night. I will explain it, and I hope she will 
engage me in a bit of a colloquy.
  In the dead of night, with no one watching, after we thought we had 
made the compromise on these workers, a few things were snuck into this 
bill. A big campaign contributor of the Republican Party was rewarded 
phenomenally. A provision was added to the homeland security bill that 
protected that big contributor but it has nothing to do with homeland 
security or protecting the American people. In fact, I say that this 
provision which was added will create insecurity in our homeland by 
sending a message to thousands of families that their children's health 
takes a distant second to the interests of large, wealthy, powerful 
corporate America.
  Let me explain. In my State of California, autism--a very haunting 
and mysterious brain disorder--has increased an astonishing 273 percent 
over the last decade and a half. Dr. Neil Halsey, a respected 
pediatrician and an expert in vaccination, for years said there was no 
connection between vaccines and autism. I am quoting from an article 
that appeared in Sunday's New York Times. There is ``some real risk to 
children,'' he said, ``from vaccines that contain mercury. It is used 
as a preservative in some of these vaccines.''
  So what provisions did the Republicans put into the bill? A provision 
that holds harmless the company that produces Thimerosal, a mercury-
based preservatives for vaccines.
  What does that have to do with homeland security? Absolutely nothing. 
Childhood vaccines have nothing to do at all with homeland security. 
What does it mean if this stands and we don't have the guts to strip it 
out? What does it mean to real people who are fighting this disease? 
Many of the families have filed class action lawsuits because--if you 
have ever seen an autistic child, although their symptoms range from 
mild to severe, in severe cases you are talking about essentially 24-
hour care for that child. What will these families have to do? They 
will have to go to a taxpayer fund--a compensation fund that taxpayers 
pay for--which has very little money left in it, which is capped at an 
amount that will never pay for the cost of raising a child with this 
terrible disease.
  We heard testimony on the House side that some families trying to 
collect from this compensation fund have had to fight for 10 years to 
receive their awards.
  All the while, if this special interest rider passes, the companies 
that cause the problems will continue about their business. There is a 
lot about this rider which is upsetting and disturbing.
  First of all, how would you feel if you were a parent of a young 
child and all of a sudden, without any science, you have a liability 
waiver for this mercury compound? They are going to think: My goodness, 
if the Republicans--the Bush administration--is protecting their 
biggest contributors, maybe they know something we do not know; that 
this is really a problem because why would they bother doing it if they 
were not worried?
  This has nothing to do with homeland security. If it did, they would 
have said smallpox vaccines; they would have cited the vaccines.
  There are moments when I wonder why we are here if we are not willing 
to stand up and fight for the American people. The special interests, 
the powerful interests have so much behind them. They can so easily 
hire the lawyers they need, the representatives they need to come here 
to lobby. But the average family that gets struck with this type of a 
tragedy, all they have is the love in their family to get them through. 
What are we doing here? We have to help these people, not have a 
special interest provision that is put in in the dead of night that 
says to them: We do not care about you; we do not care about your kids; 
and if you have to suffer through, too bad, because we are going to 
protect the people who write the large contributions.
  (Mr. ROCKEFELLER assumed the chair.)
  Ms. STABENOW. Will my friend from California yield?
  Mrs. BOXER. I will be happy to yield to my friend.
  Ms. STABENOW. On that point, we actually have counted the number of 
pharmaceutical lobbyists in the Senate. There are six lobbyists for 
every Member of the Senate: Six for me, six for the Senator from 
California, six for the Senator from New Jersey. Six lobbyists are 
being paid full time to lobby and bring in these kinds of provisions 
and also to kill other provisions.
  We passed legislation to lower prescription drug prices for everyone, 
to increase competition of generic drugs, and open the border to 
Canada. There is a bill that has been languishing in the House for 
months that has been stopped by the same group that could take the time 
at the last minute to put this outrageous provision into the homeland 
security bill.
  I thank the Senator from California for her eloquence and for 
standing up for families, because as a mother--and I know she is as 
well--it is outrageous to think that parents who are concerned about 
their children will not have an opportunity to have their day in court 
over something that potentially is extremely damaging and hurtful to 
  Mrs. BOXER. I thank my friend for her leadership. I point out to my 
colleagues who are here that four desks down from me sat Paul Wellstone 
for 12 years. If Paul was here now, he would be stepping outside that 
desk and telling us: Now is the time to stand up for people, for 
children, for people without a voice.

[[Page S11187]]

  Autistic kids sometimes cannot talk. We have to stand up and be 
counted on Monday when this vote takes place and take the consequences 
if somebody gets mad at us here or there because there is no reason to 
be here if we do not protect the people of this country.

  Mr. President, I am not going to take the Senate's time anymore. I 
have expressed myself. I look forward to casting a vote on the Daschle-
Lieberman amendment to strike this rider and the other riders that were 
attached at the last minute, which I think is just a blatant attempt to 
give out special favors to the detriment of the American people.
  I thank the Chair, and I yield the floor.
  The PRESIDING OFFICER. The Senator from New Jersey.
  Mr. CORZINE. I thank the Chair.
  Mr. President, before I begin, I commend the Senator from California 
on raising not only the issue regarding childhood vaccines but the 
whole issue of adding riders about which I am going to speak in a 
moment on a whole series of issues. It makes a complicated and 
troubling piece of legislation even more difficult to weigh and balance 
as to whether it is truly one that gets us to a more secure future for 
America. All of us want to protect our freedoms and protect the lives 
of citizens across this country, but one has to think about it in the 
context of what is the give and take and whether it actually works.
  My first comment is not dissimilar to what I heard from a number of 
Members who are supportive and not supportive of the direction we are 
taking. It is hard to conceive of how we can put 170,000 or 175,000 
people together who had trouble in the organization that was in place 
before when it was smaller and more manageable and come up with a sense 
of security that we are actually going to make things better by pushing 
them together.
  At least in my experience in my private life, sometimes mergers do 
not always amount to what is intended, and value is not always created. 
It certainly leads to a question of whether we have the flexibility and 
responsiveness in an organizational structure.
  I am certainly troubled by the idea of creating a larger organization 
made up of parts that apparently have not been working so well 
historically. Clearly, we need to take positive steps. It may very well 
be we are doing that with the proposal with regard to homeland 
security, but at least as one individual, I am troubled with the 
overall size of the operation and whether it will bring about the 
responsiveness to the need, which I think all of us feel quite clearly 
needs to be addressed, of protecting the American people.
  I also am equally concerned about a number of these provisions that 
were added in a closed manner.
  I have to second my colleague's comments with regard to liability 
protection for pharmaceutical companies on vaccines. That should be an 
issue that is debated openly and understood. It should be fully vetted. 
It is an open question about whether this is a serious problem, but I 
do not think adding it as a rider that is particularly attractive to a 
particular segment is germane to the context of homeland security. It 
attacks the fundamental premise about which we are talking.
  I wish to relate that to something about which I will talk which is 
really the heart of my comments today--chemical plant security--which I 
think is missing from the homeland security debate.
  It is also troubling and hard to understand why pieces of the 
Wellstone amendment which prohibited contracting with corporate 
expatriates is pulled out of the bill. We have some adds and we have 
some drops. I am not sure why we are doing that. This was unanimously 
accepted by the Senate. I find it very difficult to understand why we 
are resourcing, promoting, or allowing those companies which choose not 
to be supportive of America with their tax dollars to have equal access 
and participate in contracting with the Federal Government with regard 
to homeland security issues.
  It is hard for me to understand why this particular amendment was 
dropped. There are a whole series of these. There are special earmarks 
for a given university. There are liability protection issues that 
really get at tort reform debates which we ought to have on the Senate 
floor--no question about that--with regard to airport screening, 
negligent manufacturing of homeland security devices. All of those 
issues should be the subject of fair debates. So why are they added as 
a so-called element of compromise, on the floor of the Senate, without 
a debate? It is unclear to me, other than we are more interested in 
rewarding special interests than the general interests, which is what I 
think is the basic theme of both the administration and certainly 
Senator Lieberman's initial proposal coming out of the Governmental 
Affairs Committee with regard to homeland security. There is a need. We 
all embrace that concept and think we should move forward.
  For the life of me, I do not understand why we are putting down new 
barriers to the Transportation Security Agency with respect to rules 
for rail transportation in this country--it is one of those areas of 
vulnerability assessments that almost anyone would talk about--other 
than we are responsive to special interests and that it is going to 
cost too much.
  As I earlier entered into a colloquy with the senior Senator from 
West Virginia on the freedom of information activities, I continue to 
be troubled as to why we are writing a blank check to cover up the kind 
of advisory meetings that could be held with private industry, hand-
picked advisers, with regard to setting policy within an 
  There may be things that should be carved out from public view, but 
when private sector individuals can have a perspective of conflict of 
interest in the advice, it seems perfectly clear that ought to be made 
available to the American public, and I am very troubled by the blank 
check mentality we are taking with regard to secret activity, 
particularly when it involves the private sector.
  We have had that debate with regard to our energy policies, and I 
think we are now making that a normal course of events.
  So for all of those reasons--and those are mostly adds, except for 
maybe the drop with regard to the Wellstone initiative--I am troubled.
  Finally, this National Commission on September 11 and the review, to 
me, is incomprehensible. Hopefully we will find another way to bring 
this back, but in my 30 years in the world of management I have never 
seen a situation where you have a failure, a breakdown, a problem that 
people do not stand back and say, what went wrong and what could we 
have done differently to make sure we are secure going forward, without 
an independent review that people can have confidence that all of the 
facts are laid upon the table, including, by the way, observing whether 
congressional oversight is operated with its most effective provision.
  I find it difficult to understand why we are investing so much with 
so great certainty about the direction we should be taking with regard 
to homeland security.
  As I said, this is going to be a tough weekend for me because I have 
trouble with the conceptual issue of putting so many people together. 
Now that the senior Senator from West Virginia is present, we could 
argue that the Constitution he is carrying in his pocket would also 
raise serious questions about some of the authorities there. These 
special additions and drops at the end are particularly concerning to 
  So for all of those reasons, this is going to be a very difficult 
weekend for weighing and balancing these various elements because, like 
everyone else, and particularly for the people of New Jersey who lost 
691 lives on September 11, there is an expectation that we have a 
responsibility to protect our homeland. It is obvious. It is self-
evident. But it is not obvious and self-evident that we are, in my 
view, improving dramatically that effort.

  I certainly believe there are risks in the transition from where we 
are today to the full implementation of this measure and that we may 
very well be operating under the analogy that people talk about of 
running a marathon while you are performing open heart surgery. Whether 
we are going to be more secure while that process is going on in the 
midst of a war is an open question. It has not been proven to me that 
we are actually developing greater certainty.

[[Page S11188]]

  Now, there is another issue which has not been discussed on which I 
have worked very hard through most of this year and feel deeply about 
because it deeply impacts my State. Actually, it impacts almost every 
State in the Union.
  I see the ranking member from the Committee on Environment and Public 
Works, the Senator from New Hampshire, who has heard much of this 
discussion in the committee, which I think is something that is missing 
from this bill, and that is the need to protect Americans from attacks 
on our Nation's privately owned chemical facilities.
  I realize this is also one of those things that is futile in the 
context of the cloture debate, but it is absolutely essential that 
America be aware of an issue that needs to be focused on and needs to 
be moved forward. I would be remiss in not having brought this farther 
in the process, and hopefully this discussion and the efforts that have 
gone on before will keep it in the debate, in the committees, and in 
this new Department which is most certainly going to come to pass.
  I will discuss it in the context that there are literally thousands 
of chemical facilities in the United States where a chemical release 
could expose tens of thousands of Americans to highly toxic gases. That 
is why these facilities are potentially so attractive to terrorists. As 
a matter of fact, if one goes to a chemical facility in Israel, they 
will see it protected by a security infrastructure that is not unlike 
what one would see at a nuclear powerplant in the United States.
  As I will relate, if someone visits some of these facilities in the 
United States, they will see an entirely different standard by which we 
are securing them. In fact, there are currently no Federal security 
standards for chemical facilities--none--so that the private sector is 
left to do whatever it desires or believes it can afford. It is a 
completely voluntary situation.
  Many facilities simply have not fulfilled their responsibilities, in 
my view. Many are certainly vulnerable to attack. As the statistics and 
studies show, literally millions of Americans are at risk. They are at 
risk in New Jersey. If one flies into Newark Airport and looks at the 
chemical plant storage facilities, the refining facilities that are 
right in the path of the landing strips, they will get a sense of the 
kind of exposure we have.
  Also, if one looks at how easy it is to access, which I will speak 
more clearly to in a minute, they get an even greater sense of the 
insecurity with regard to this area of our infrastructure.
  According to the EPA, there are 123 facilities in 24 States where a 
chemical release could expose more than 1 million people to highly 
toxic chemicals. One of these plants in New Jersey has exposure to 7\1/
2\ million people inside the metropolitan region of New York. A lot of 
chemical plants are located in our urban communities, not scattered out 
into the hinterland but right smack dab in the middle of where we have 
high concentrations of populations. There are about 750 facilities in 
39 States where chemical release could expose more than 100,000 people 
to toxic chemicals. There are nearly 3,000 facilities spread across 49 
States where a chemical release could expose more than 10,000 people to 
highly toxic chemicals.
  I think the numbers speak for themselves, and they are 
staggering. There is a large exposure in a broad context in our Nation.

  A single attack on a facility could unleash highly toxic chemicals 
such as chlorine, ammonia, and hydrogen fluoride that cause widespread 
injuries and death. Considering the literally thousands of potentially 
deadly facilities across the country, we cannot escape the conclusion 
that it represents a major vulnerability, a major homeland security 
  It is not just my opinion. In fact, the Justice Department issued a 
report on this matter a year and a half before September 11. I will 
read a brief excerpt from a summary of the report issued April 18, 

       We have concluded the risk of terrorists attempting in the 
     foreseeable future causing industrial, chemical release is 
     both real and credible . . . Increasingly, terrorists 
     engineer their attacks to cause mass casualities to the 
     populace and/or more large-scale damage to property. 
     Terrorists or other criminals are likely to view the 
     potential of chemical release from an industrial facility as 
     a relatively attractive means of achieving these goals.

  That report was issued before September 11. Its conclusions have been 
echoed by several other Government agencies and individuals since.
  For example, Governor Ridge said the following in recent testimony 
before EPW:

       The fact is, we have a very diversified economy and our 
     enemies look at some of our economic assets as targets. And 
     clearly, the chemical facilities are one of them. We know 
     that there have been reports validated about security 
     deficiencies at dozens and dozens of those.

  Let me talk about the reports Governor Ridge may have been referring 
to. Earlier this year, the Pittsburgh Tribune-Review conducted a major 
investigation of western Pennsylvania. Here is what they found:

       A Pittsburgh Tribune-Review investigation has shown that 
     intruder has unfettered access to 30 of the region's 
     deadliest stockpiles of toxins and explosives, despite 
     repeated warnings from the Federal intelligence agencies to 
     safeguard large chemical tanks.

  This Tribune-Review went on to say:

       Security was so lax at the 30 sites that in broad daylight 
     a Trib reporter--wearing a press pass and carrying a camera--
     could walk or drive right up to tanks, pipes and control 
     rooms considered key targets for terrorists.

  After this initial story, the Tribune-Review expanded the scope of 
investigation. They went to Houston, Baltimore, and Chicago to see if 
what they found in western Pennsylvania was a fluke. They looked at 30 
or more facilities in 3 other States and the findings were equally 
  I point out in metropolitan New York the local television station has 
done similar sorts of walk-ons to chemical plant facilities, including 
the one that has the 7.5 million people exposure in metropolitan New 
  This is troubling, to say the least. There is a pattern. Perhaps that 
is why the chemical industry got low marks for post-September 11 
terrorism response.
  On September 10 of this year, the Washington Post graded critical 
infrastructure sectors, giving the chemical industry a D. Newsweek, 
which is owned by the same people, did a similar piece. They were even 
tougher. Newsweek gave the chemical industry an F. I have seen this 
repeatedly in a number of surveys of America's infrastructure.
  While some companies may be doing everything they can, and I know 
there are some that are working very hard, they are concerned about it 
for security reasons and protecting their people and maybe themselves. 
But the fact is we need to do a lot more. We need to be a lot more 
certain the breadth of the industry is being attended to.

  That is why in October 2001 I introduced the Chemical Security Act. 
That is why I worked with Senators on both sides of the aisle to move 
the bill through the EPW Committee. This is the hard part. Ultimately, 
the committee approved the legislation on a vote of 19-to-0. Not a 
single Senator voted no. I note Senator Inhofe did, in fairness, 
express concerns about the bill at markup and I agreed to continue to 
work with him on those issues afterwards, particularly so we could 
potentially add it as an amendment to homeland security.
  In fact, as I suggested, I talked with other Members and we tried to 
keep the concerns of the bill, deal with them, and while I will not go 
through the post-markup negotiations, there were substantial revisions 
so it could get added to the bill. Unfortunately, we have not been able 
to get to conclusion in that process even though it was a 19-to-0 vote 
in committee for it. Sometimes I wonder whether special interests 
sometimes trump the people's interests.
  I will not be offering my amendment; it is not germane. But I think 
we need to come back and go to work on this issue as soon, as 
forcefully, as possible. It is absolutely relevant to homeland security 
and protecting the American people. I know that is the case in New 
  I will not go through it in detail, but the first thing we have to do 
is be very specific about identifying high priority chemical 
facilities. That can be done relatively straightforwardly. It will take 
cooperation between EPA and the new Homeland Security Department. There 
is some debate about that. We

[[Page S11189]]

need a list. It does not have to be published on the front page of the 
New York Times, but we need to understand what the exposures are and 
get about protecting the American people.
  Second, we need to have audits of what that process is so there is a 
reality to what has been talked about. There is not a moral hazard 
saying we have done something and nothing really has occurred.
  In a nutshell, that is what this is about. It is a little more 
complicated than that in detail, but I suggest this is something that 
really should be a priority when we return. I hope we do not face the 
stonewalling that has come up from some elements in the industry. The 
need to act is urgent. This is, by the way, consistent with some of the 
things other people who have looked at homeland security on a broader 
basis have talked about.
  I will quote from a recent op-ed piece by Warren Rudman and Gary 
Hart, who have been following homeland security as effectively as any 
two Americans studying this. They have an op-ed page written in October 
of this year:

       America's corporate leaders must accept their new 
     responsibilities to protect the privately owned critical 
     infrastructure and cease the behind-the-scenes lobbying 
     against measures requiring them to do so. If necessary, the 
     President must deliver this message bluntly and directly.

  Some of those things that were added in the middle of the night, the 
kind of experience that I have experienced with regard to trying to 
deal with chemical plant security, is indicative that that process of 
resisting, protecting the American people, is not fully embraced in the 
private sector.
  I could not agree more. We need to work together as a Congress, with 
the administration, and deal with this issue.
  Homeland security in general, time is of the essence, as someone said 
around here. It is not neutral. So I hope we can move very quickly on 
this. I am sorry we have not been able to deal with this. There are 
some good voluntary efforts with regard to chemical security. But I 
don't think we have gone far enough. Voluntary efforts alone are not 
going to be sufficient. We need to work in Congress to make it happen.
  Finally, I am proud to be an author, a promoter, a sponsor of this 
legislation with regard to chemical plants. I am also proud to be a 
cosponsor of the Daschle amendment that will deal with some of these 
other special interests. I think the two relate in the sense that we 
are not all on the same page pushing forward to protect the American 
people on homeland security. We need to get there. With both the 
private sector and the public sector.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. I ask unanimous consent that there be debate only on the 
matter now before the Senate until 3:30 today.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BYRD. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Corzine). Without objection, it is so 
  Mr. BYRD. Mr. President, if the Chair will bear with me momentarily.
  Mr. President, over recent weeks as the President crisscrossed the 
Nation on campaign stops--campaign stop after campaign stop--he used a 
number of gimmicks, including this legislation, to rally support for 
his chosen candidates. He painted this bill as a panacea for the 
terrorist threats that plague us and challenged this Congress to pass 
this bill quickly.
  On each occasion, as I followed the newspaper accounts of the 
President's stops during the campaign, the President left the 
impression among the public that this bill is urgently needed, and that 
it will make life safer for American families. But there was much he 
didn't say. Here is what the people can expect after the Congress 
approves this legislation to transfer 28 agencies and offices to a new 
Homeland Security Department.
  Next February, the President will submit a plan--his plan--to the 
Congress about how he intends to transfer 28 agencies and offices into 
a massive new Department over the period of just 12 months. We don't 
know what is in the President's plan today, and we will not know what 
is in the President's plan when and if Congress passes this bill and it 
goes to the Chief Executive for his signature.
  We will not know what is in the President's plan. After we have 
passed this bill and it becomes law, the President will then inform the 
Congress about how he intends to reorganize, consolidate, and 
streamline these 28 agencies as they are moved into the new Department. 
He will not seek approval of the Congress--the elected representatives 
of the people. He will not seek our approval. He will not need to 
because--according to the provisions of this bill on which we are being 
hurried and stampeded to act, according to the provisions of this 
bill--he will simply drop the plan in the laps of the committees so 
they can be informed about what he intends to do. He will not be asking 
for their approval. We will have already given our approval when we 
pass this bill.
  I hope Senators understand that. When we pass this bill, we, the 
Congress, are out of it. The President will in due time submit his 
plan. In due time he will inform the Congress as to what he intends to 
do. He won't have to ask us if we approve of what he is going to do. We 
will have already said to him: Here it is. You submit your plan. 
According to the provisions of this bill, your plan will go into effect 
in due time. And we will not have any more to say about it.
  He will simply drop the plan. It will not fall like manna from 
heaven, because it won't come from heaven. This is what we are 
authorizing the President to do when we adopt this bill that is before 
the Senate.
  Here it is. Those who are watching this floor through the electronic 
lenses before us, here is the bill. It is made up of 484 pages. These 
pages are not like reading ``Robinson Crusoe'' or Milton's ``Paradise 
Lost.'' They are very difficult pages to understand. On only a single 
page there may be many references to various and sundry laws that are 
already on the statute books, so that in order to understand what may 
be on a single page, we have to go back, look at the references, and go 
back to those statutes that have been on the books--some of them--for 
many years or decades. We have to go back and see what those laws 
contain before we understand what is on a single written page. It is 
not like reading a novel. In some senses, it is made to sound like a 
fairy tale. But it is indeed not a fairy tale.
  This is a bill that affects you--a bill that affects those two 
members of the staff back here who are talking. This is a bill that 
affects you. This is a bill that will affect you, each of you--you, 
you, you, you, each Senator. Each of those persons out there who are 
watching this debate--it is really not a debate. There is only one 
Senator talking here and one Senator listening and one Senator in the 
chair. So there are not too many Senators here. Hopefully, they are 
watching from their offices, as we all do.
  This is the bill. Let me say it again: 484 pages of complicated 
  How long have we had it? A little over 48 hours. It came to us early 
in the morning on the day before yesterday. Today is Friday--early in 
the morning of Wednesday. There it is. There is the whole thing--the 
whole thing. I don't know what is in it. I know about some of the 
things that are in it. But no Senator in here knows everything that is 
in this bill. I daresay that. I would be happy for any Senator to stand 
on his feet and challenge me on that and say: Hold up here a minute; I 
know everything that is in it.
  We are authorizing the President to submit this plan. He can do it 
without our subsequent approval. This legislation authorizes the 
President to reorganize, consolidate, or streamline these 28 agencies 
and offices any way he chooses--any way he, that one man, the President 
of the United States--as these various agencies are moved into the new 

[[Page S11190]]

  All this legislation asks of the President of the United States is 
that he let us know what he has decided. That is not asking a lot from 
the Chief Executive of this country. That is all he needs to be 
concerned about. All he needs to be concerned about is to explain what 
he plans to do. Too late. I am sorry to say to any of you Senators that 
you can't do anything about this. You have already given him the 
approval. When you vote aye on this 484-page bill, you will have given 
the President the approval that he needs. You can be sorry for what you 
have done. You can crab about it and be cranky and wish you had not 
done it. But it is too late now.
  You remember that old song: ``It is too late now.'' Well, it will be 
too late for any of us--too late.
  We can weep and gnash our teeth--if we have any teeth left. And I 
happen to have my full set after 85 years. I have a full--I can't say 
quite a full set. But I have lost about I think four teeth in my 
lifetime of 85 years. These are real teeth. I can't take them out at 
night and scrub them, wash them, and put them in a big glass of water. 
I can't do that. They are real. They are real teeth. And they can bite, 
thank God. We didn't have all of this fancy medicine and all of these 
fancy health programs that the young people and children have today, 
with which mothers and fathers are blessed. We didn't have anything 
like that in those days.
  So all I have is what the good Lord gave me through my mother's and 
father's genes. Well, that is all I have.
  So here we are. I can gnash my teeth. They are real teeth. I can 
gnash those teeth. I seldom show them around here, but they are there. 
I can gnash my teeth, and complain all I want, and say I wish I had 
known--I wish I had known. Well, it is too late now. That will be the 
way it is.
  He can move these agencies any way he chooses. All this legislation 
asks the President to do is: You please just tell us what your plan is. 
Will you do that? Please, just tell us what your plan is.
  There are 1.8 million people in West Virginia whom I represent, and 
who are represented by my colleague, Senator Rockefeller.
  My people, my 1.8 million, would love to know what those plans are. 
But bless his name, the President does not have to tell us today. And 
we don't ask him. But we will get on our knees and fold our hands and 
say: Mr. President, will you just please tell us, when you are ready, 
what you plan to do? You can do it now. Here is the bill. We are 
passing it today, but just please tell us what you are going to do.
  All this legislation asks is that the President let us know what he--
he, the President of the United States. He will be with us 2 more 
years, maybe 6. Who knows. But anyhow, this man down here in the White 
House, one man out of 280 million, he will tell us what he plans to do.
  A few months after we receive the President's proposal--after he is 
so generous to come up here and tell us what he plans to do--a few 
months after we receive his proposal, we will begin reading articles in 
newspapers and magazines. I am going to come back to the floor--the 
Lord willing, if He lets me live--I am going to come back on the floor 
and remind my colleagues; I am going to remind all these staff people 
around here: This is what I told you. I told you.
  After we start reading all these articles in newspapers and magazines 
about special advisory committees--this is exactly what that Senator 
who is sitting in the Chair right now, the Senator from New Jersey, Mr. 
Corzine, talked about this morning. He told us about it. He told us 
about these special advisory committees. And they will have been 
established, by the new Homeland Security Secretary, to make 
recommendations about certain homeland security-related issues.
  Now, look at that. I hope Senators will go back and read today's 
Record or that of the first of the week about what Senator Corzine had 
to say about this, yes, about certain homeland security-related issues.
  Possibly, we will hear about an advisory committee being 
established--maybe we will see it in the Federal Registry, that an 
advisory committee has been established--to make recommendations about 
how the new Directorate of Information Analysis can look at our e-mail 
accounts. This will not be a laughing matter. I will tell you, this 
will not be a laughing matter.
  Now, let me say that again. Possibly, we will hear about an advisory 
committee that has been established to make recommendations about how 
the new Directorate of Information Analysis can look at our e-mail 
accounts, can look at our banking transactions, can look at our 
telephone conversations, or can even look at our credit card 
  I don't have any credit cards. Let them look at mine. They can't look 
at my credit card transactions. I grew up the old-fashioned way. I pay 
for it as I get it. No credit card for Robert C. Byrd, or the Mrs. But 
to those who have credit cards, he can look at your credit card 
transactions to trace everything you purchase from butter to bullets. 
Welcome, Big Brother. How do you like that?
  The American people will want to know, and will deserve to know, what 
recommendations are being made to the Homeland Security Secretary. The 
press will try to provide the public with answers. But under this bill, 
you can be sure that the press will not be allowed to access the 
minutes of those committee meetings. That is what we are making 
possible by the passage of this legislation. We are making it possible 
for the American public not to know what these special committees 
are considering. And the public will not be able to find out because 
this bill--this bill--here it is; 484 pages, new, never been in a 
committee, never seen the light of day in a committee meeting. There is 
no analysis of this bill that I know of from any departments here. 
There have been no witnesses appearing before Senate committees 
supporting this bill. Nobody had any committee markup that I know 
about. This bill just suddenly emerged out of the darkness on the 
morning of Wednesday, the evening of Tuesday night. There it was.

  But that bill--that bill--will allow the new Secretary to exempt such 
advisory committees from the public disclosure laws that are on the 
books now that enable the press--the fourth estate--and the American 
public to find out what these advisory committees are doing.
  This bill will allow the Secretary to drop a veil, to bring the 
curtain of secrecy down, to drop a veil of secrecy over these advisory 
committees and hide their work from the press--from the all-seeing eyes 
of the press--and from the public.
  Do you want to vote for that? Is that what you Senators want to vote 
for? Is that what your constituents want you to vote for, Senators? I 
hope, if you are not hearing me now, that your staffs are listening. I 
hope, if you don't hear me, that somebody will show it to you in the 
Record on Monday morning what Senator Corzine, the distinguished able 
Senator from New Jersey, who presides over this Senate at this moment, 
I hope they will read what he said and what I am saying here about 
these advisory committees and about what we are about to let happen. 
And here is the bill that will allow it to happen.
  I hope you Senators who vote on this matter--probably one day next 
week--will have to answer to your constituents for that. I have been in 
this Congress 50 years, and I have cast many votes. I have cast more 
votes, than any Senator who ever lived, in the Senate of this Republic. 
And I just have to say, I have cast some votes that were critical 
votes, but I think that what we are doing in this bill, more than 
anything else I have voted on in my 50 years in Congress, is shifting 
power to an administration, shifting power to a President.
  I would say this: God, so help me--and God could drop me in my tracks 
right here in this moment if I were not saying what I believe--I would 
say the same thing about this bill if it were a Democratic President in 
the White House.
  I have no ax to grind. I am not on the payroll of any pharmaceutical 
company or any other company in this country. I am on the people's 
payroll right here in this Senate. That is it. So I have no ax to 
grind. I am just saying that if it were a Democratic President in the 
White House, I would be standing here today saying the very same thing. 
It isn't because the current President of the United States is a 
Republican. That is not it. But there is something about this 
Republican administration that is far different from

[[Page S11191]]

what I have seen in former Republican administrations. And I served 
under Republican administrations, beginning with the Eisenhower 
  This is a different kind of administration. This is a bill that I 
will vote against regardless of who might be in the office of the 
President. This bill will allow the Secretary to drop a veil of secrecy 
over these advisory committees and hide their works from the press and 
the public.
  So what we are doing when we vote next week on this bill, if we vote 
next week, what we are doing is putting our hands over our eyes, and we 
are saying the public has no right to know. We are taking away the 
public's right to know.
  That is what we are about to do to you out there in the land, across 
the land, across the plateaus, the Plains, the mountains, the valleys. 
That is what we are saying to you. You may not catch us at it, but that 
is what we are doing to you. That is exactly what we are doing to your 
right to know.
  Later in the year, the people may begin to read in the newspapers 
about start-up problems in this vast new Department. The papers will 
possibly report about a failure by the new Immigration Service to deny 
entry to a known terrorist because the relevant immigration officials 
were too preoccupied with moving their offices, reconnecting their 
computers, reinstalling their phones, or even changing the heading on 
their stationery to handle their primary responsibility; namely, 
protecting our borders.
  This would bring about a clamoring of public disgust as agency 
officials are found to be too busy organizing their offices to properly 
handle their duties. Editorials will appear around the country 
remarking about the failures of the new Department, and the public very 
well may have reason to lose trust in that Department.
  These kinds of high-profile debacles could carry over to the 
Transportation Security Administration, the Customs Service, FEMA, the 
Coast Guard, or any of the 28 agencies and offices and 170,000 
employees being transferred to the new Department. Senators may well 
read a few months from now about Federal workforces in their home 
States and the jobs of Federal employees being privatized under the 
labor rules included in this bill.
  Don't say that you were not warned, I say to my colleagues. Don't say 
that you were not warned.
  The Washington Post reported today that the administration plans to 
open as many as 850,000 Federal jobs to private contractors. Have you 
read it? If you haven't, go to today's Washington Post. Look for that 
story. It is there. Read it with your own eyes, and you will believe 
it. What a nice plum that is for the big business friends of the 
administration. How about that? What a shortsighted, ill-conceived 
political gimmick it is. What a hoax it is to play on the taxpayers.
  Privatization has nothing whatsoever to do with improving security. 
Look at the private security firms that were in charge at some of our 
Nation's largest airports on September 11. Remember reading about these 
in the newspaper? Go back and look at some of those old newspapers. Is 
more of that what this administration really wants? I ask, is more of 
that what this administration really wants?
  The Wall Street Journal editorialized today about the fallacy of 
pushing this bill through at such a late date.
  Now, imagine that. The Wall Street Journal. Hear me now. Paul Revere 
awakened Concord. I would like to be able to awaken this Senate and the 
other body. Do you suppose I could do that? Paul Revere did that. He 
was able to awaken Concord. Get out of your beds; the redcoats are 

  Let me say that again. The Wall Street Journal editorialized today 
about the fallacy of pushing this bill through at such a late date.
  How many of our Senators today voted for cloture? If Senators had 
read the Wall Street Journal, the editorial today about the fallacy of 
pushing this bill through at such a late date, would the Senators who 
voted yes--and I implored and I importuned and I urged, which I seldom 
do, I urged Senators right there in front of that desk, that table in 
the well of the Senate. There were several Senators I urged: Please 
don't vote for cloture today. You can vote for it next week perhaps, 
but don't vote today. Let's take a little more time and study this 
  The answer I got: Well, you have the weekend. You have 30 hours. You 
have 30 hours; isn't that enough?
  Do we have? No. We have already been told by the minority: You won't 
be able to offer any more amendments.
  The only amendment that is going to be offered is the amendment that 
has been offered by the majority leader, Mr. Daschle, that amendment on 
behalf of Senator Lieberman, and I added my name to it afterwards, when 
I saw what was going on. So there it is, the Daschle-Lieberman-Byrd 
  But we are told by the current minority--soon to be the majority--
that you can't offer any more amendments. That is the only amendment we 
are going to let you offer.
  So how about that cloture now? I was told by some of my colleagues on 
this side of the aisle: Well, you have the whole weekend. You can 
  Who saw this thing coming? Who saw the situation coming in which we 
would offer one amendment and we are told by our Republican friends, 
that is it, no more; that is the only amendment that will be offered?
  So what about it now, my colleagues who reminded me that we have this 
weekend? Even under cloture, we have this weekend.
  I said to one of the Senators who said that to me: I wasn't born 
yesterday. I am not a new kid on the street here. I have been in this 
Congress 50 years. I know a little something. I have learned a little 
something about the rules of the Senate, and so forth.
  But here we are, one amendment. That is all.
  We are not going to be allowed to have any other votes on amendments, 
except that one. ``You have 30 hours,'' I was told by Senators down in 
the well there. ``Well, you have 30 hours; you have the weekend, and 
your staff has the weekend. You have 30 hours.''
  I have several amendments I would like to offer, but I cannot do it. 
The tree is filled. Remember the tree at the Garden of Eden? It is the 
first thing you read about in the Bible. The greatest scientific 
treatise ever written is that first chapter of Genesis. That will tell 
you more about science than many scientists today can tell you. It 
tells you the order of things in which they were created. The 
scientists of today will tell you that is the correct chronological 
order. Go back and read that first chapter of Genesis and you will read 
the chronological order of creation, and that was written thousands of 
years ago. What a piece of science that is.
  I have three grandsons, two of whom are physicists. I have a son-in-
law who is a physicist. I have a grandson who married a physicist. So 
we have lots of physicists, lots of scientists in my family. But before 
all those scientists came into being, the greatest scientific treatise 
ever written had been written right there in the Book of Genesis. We 
have no reason to stay dumb about how creation went forward. It is 
right there.
  Anyhow, there it is for us. So here the Wall Street Journal 
editorialized today about the fallacy of pushing this bill through at 
such a late date. Here were these great Senators who stood up there in 
my face and two or three of them told me, ``Well, you have this 
weekend, you have 30 hours,'' as though I didn't know that. How many 
Senators would like to tell me that? One or two of them did. I did say 
to one that this is not a new kid on the block. I know about that 30 
  Now look at what we have. I cannot offer an amendment, even though we 
have 30 hours. The tree is filled. But it is not that tree in the 
Garden of Eden. That is the tree of knowledge and we all can continue 
to learn. But I cannot offer an amendment. Our Republican friends would 
say you can go this far but no farther. You have an amendment pending, 
but that's all. That is the only amendment you are going to have to 
vote on before that 30 hours is up.
  How do you like being given that kind of medicine? That is what we 
have to deal with here. Here is what the Wall Street Journal said. Get 

       There's little or nothing that this rump session can 
     accomplish that couldn't be done better starting anew in 

  That reminds me of the distinguished Senator from Texas. I love him 
in many ways, and I agree with him on

[[Page S11192]]

occasion. He stood right here today and said, ``This bill is the best 
you will get. How many in here are willing to believe that by putting 
this over another 3 months they can get a better bill?'' I said, ``I 
do.'' But that was his position, that this is the best bill you are 
likely to get. Do I think we will get a better bill after 3 months in a 
new Congress? Yes, I do. But that was his question.
  I don't need to answer that. Let the Wall Street Journal answer that 
question. Do you think you can get a better bill if you wait 3 months? 
That is the question.
  The first question that was ever asked was asked by God as He went 
into the Garden of Eden and started looking for Adam--Adam and Eve in 
that garden. God was walking in the cool of the day and he was looking 
for Adam in that paradise setting. How lovely that must have been. Here 
is old Adam over here somewhere under a tree, or back in the bushes, 
with some figleaves hiding from God. God said: ``Adam, where art 
thou?'' That was the first question ever asked.

  The people are going to say to us: Senator, where were you? Those 
Senators who voted for cloture, God love them--and I love them and I 
respect their viewpoints. They have a right to cast the votes they want 
to cast them. I don't like to tell them how to vote. But let my 
constituents say: Robert, where were you? Where were you when you cast 
that vote?
  So here is what the Wall Street Journal would say:

       There's little or nothing that this rump session can 
     accomplish that couldn't be done better starting anew in 

  Hallelujah. Thank God for the Wall Street Journal. They answer the 
question well--better than I.

       There's little or nothing that this rump session can 
     accomplish that couldn't be done better starting anew in 
     January. That includes President Bush's priority of a new 
     Department of Homeland Security . . . the proposal is mostly 
     about rearranging the bureaucratic furniture . . . And as 
     with any bill whipped through this quickly, we can expect to 
     learn later about many bad ideas that deserved more scrutiny.

  Mr. President, at a later moment, I will ask unanimous consent that 
the entire editorial be printed in the Record but not at this point. I 
suspect it won't be long before we begin to hear about the bad ideas 
that deserved more scrutiny.
  Some Senators may find comfort in the fact that this bill has been 
touted as a compromise. It won't compare with the great compromise of 
July 16, 1787, which created this Senate. If it had not been for that 
compromise, you would not be here today, Mr. President. You would not 
be presiding over a Senate of equals, regardless of the size of your 
State, or the size of its population; you would not be in a Senate in 
which two Senators from the smallest State would have the same 
strength, as to their vote, as two Senators from the largest State in 
the Union. I would not be here. The Senator from New Hampshire would 
not be here. The Senator who is the minority leader from Mississippi 
would not be here. The Senator who is the majority leader, the Senator 
from South Dakota, would not be here. All of these pages, they would 
not be here. No, this would not be the Senate. But it is that 
Constitution--here it is; I hold it in my hand. Senators should, above 
all people, become more acquainted with this Constitution.
  Some Senators may find comfort in the fact that this bill has been 
touted as a compromise. I don't know who this bill was a compromise 
between, other than the White House and the congressional Republicans, 
who already supported some version of the President's original plan.
  Call me old-fashioned. Yes, there he is, there is that old-fashioned 
guy. I am married to an old-fashioned sweetheart. Thank God for her. 
She has been my sweetheart now for 65 years and going on quickly to the 
66th. Thank God for that kind of an old-fashioned sweetheart. I hope 
she thinks the same thing about her old-fashioned husband--ha, ha, ha, 
that old-fashioned guy. That is the man. He has been around 85 years--
an old-fashioned guy.
  I remember a time, Mr. President, when compromises were crafted by 
individuals who had differing views on an issue. This kind of 
compromise, this 484 pages--let me make sure I am right. Yes, it is 484 
difficult, complicated, hard-to-read, harder-to-understand pages. There 
it is. This kind of compromise is like legislative shadow boxing.
  Have you ever tried boxing? I tried it, and I got knocked on my 
anterior. That was the end of my boxing. I found I was not so good at 
boxing. This kind of compromise here is like some kind of shadow 
boxing. It would be laughable if it were not so serious. This kind of 
compromise is like legislative shadow boxing--punching and jabbing and 
sparring with absent opponents. The opponents are not there.
  This ephemeral compromise makes no concessions with regard to the 
President's efforts to exempt this new Department from public 
disclosure law, such as the Federal Advisory Committee Act. You will 
not find that spelled out, but you will find reference is made to it. 
You have to go beyond the plain print in section 871. You have to go 
beyond the plain print. It is referenced there, but you have to go back 
to the statute books to see what they are talking about.
  This ephemeral compromise makes no concessions with regard to the 
President's efforts to exempt the new Department from public disclosure 
laws, such as the Federal Advisory Committee Act. It includes no 
concessions with regard to the President's reorganizing the 28 agencies 
and offices being transferred to this new Department without 
congressional approval.
  I have never seen anything like it. In 50 years in Congress, I have 
never seen anything like it--never. All this without congressional 
approval. It includes only token concessions to those who have 
substantive, genuine reservations about this bill with regard to the 
civil service and collective bargaining issues. How can we pretend that 
this amendment is a serious attempt at a compromise when it is only an 
agreement between the President and the few supporters of the 
President's bill?
  Oh, there are compromises in this. Yes, there are compromises in this 
amendment. It compromises the rights of Federal workers. It compromises 
the civil liberties of the American people out there. It compromises 
your daddies' and mothers' civil liberties, the parents of these nice 
pages we have here.
  They are just the most wonderful people. They come here seeking to 
understand the legislative process. What are they getting? They are not 
getting the legislative process in this monstrosity. They are not 
getting the legislative process. These--I said kids; these are young 
people. They are all juniors in high school. They are at that tender 
age where they learn quickly. They have come here wanting to learn the 
legislative process. They are being cheated. I say to you young fine 
pages here, I love you.
  From time to time, I meet out in the corridor with the pages, 
Republicans and Democrats. I tell them good stories, I mean wholesome 
stories. That is right. They are wholesome stories. I tell them stories 
in which there is a moral lesson. I tell them the story of the house 
with the golden windows. I tell them the story written by that great 
Russian, Tolstoy, ``How Much Land Does A Man Need?'' I tell them the 
story about ``Acres of Diamonds'' that was told, I understand, 5,000 
times by that great Chautauqua speaker, Russell Conwell.
  I tell these pages good stories, wholesome stories. I talk about the 
Bible. I talk about Milton. I talk about the Constitution. I talk about 
history. I talk about Nathan Hale to these young people here. Bless 
their hearts. I always am inspired when I talk to these young people. 
These are the cream of the crop. Mind you, there are millions across 
this country just like these. But they are being fooled. We are fooling 
these young people.
  They come here to learn the legislative process. What do they get 
from this bill? This is not the legislative process. They do not learn 
in this amendment. They will go back one day and they will say: I heard 
Senator Byrd say that was not how our laws are made. No. We short 
circuited that process on this amendment, this 484-page bill. Here it 
is, 484 pages. What is in it? Don't ask me. I know a few things that 
are in it, and I have heard other Senators talk about a few things that 
were left out of it in the darkness of the night.
  We talk about compromise. This 484-page monstrosity compromises the 
civil liberties of the American public.

[[Page S11193]]

It compromises the constitutional doctrines of the separation of powers 
and checks and balances that we find in the Constitution, which I hold 
in my hand.
  This bill compromises the notion that the Senate should debate and 
amend legislation and act as the greatest deliberative body in the 
world before passing massive--massive--reorganizations of the Federal 
  Mr. President, we have allowed ourselves to be stampeded, and I could 
be as King Canute. A lot of King Canute's followers thought he could do 
anything. He thought he would disabuse his followers of that fallacy, 
that belief that King Canute could do anything. So he went down to the 
sands of the oceanside, and he commanded the waves to be still. The 
waves were not still. They did not go still, so the people finally 
understood that King Canute could speak to the ocean and it would not 
necessarily heed him.
  I say that to say this, Mr. President: I might as well speak to the 
ocean. I might as well be like King Canute as to speak to some of my 
colleagues here. My speech would fall upon deaf ears, and they would 
say: There he goes again, that old-fashioned guy who believes that we 
ought to take the time; there he goes again.
  We have allowed ourselves to be stampeded into passing this bill. 
Afraid to be on the wrong side of this issue, we hear cries from both 
sides of the aisle that we must support our President. We hear cries 
of, ``My President,'' ``My party,'' ``My Commander in Chief.'' When 
will we hear, Mr. President, ``My country''? When will we hear, ``My 
  Senators are obviously upset about the miscellaneous provisions that 
were included in this bill at the last minute. The Washington Post this 
morning outlined a number of these provisions ranging from language 
that would help the FBI obtain customer information from Internet 
service providers to language incorporated in the bill by the House 
Republican leadership that gives Texas A&M--I do not believe it 
mentioned Texas A&M--that gives Texas A&M the inside track in hosting 
the first university center on homeland security to be established 
within 1 year.
  It will not say that in the bill. Senators will not find that in the 
  But the language in the bill is so targeted only that one--at least 
that one institution would be most favored over others.
  Probably the most egregious provision inserted is a White House-
backed provision designed to head off dozens of potential lawsuits 
against Eli Lilly and Company and other pharmaceutical giants that are 
being sued by parents who have linked their children's autism to those 
companies' childhood vaccines.
  How about that? I ask the distinguished Members of the other body. 
How do they feel about having passed this bill with that kind of 
language in it? Hear me over there at the other end of the Capitol. 
Yes, explain your vote, explain your vote to your constituents. You, 
back there in the other--we are not supposed to refer to the other body 
in our speeches, but the other body passed this bill in a hurry.
  Those in the other body who voted for this, go back and look at what 
you voted for.
  How much time do I have remaining, Mr. President?
  The PRESIDING OFFICER. The Senator has 5 minutes remaining.
  Mr. SARBANES. Will the Senator yield to me on my time for a few 
  Mr. BYRD. Yes, I will be glad to yield.
  Mr. SARBANES. May I have this counted against my time under cloture?
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SARBANES. I ask the distinguished Senator from West Virginia: In 
July, the Brookings Institution issued a report concerning this 
reorganization, and they said the following, and I am quoting from them 

       Any fundamental reorganization represents a huge managerial 
     undertaking, one that becomes ever more daunting as the 
     number of agencies to be included increases. The danger is 
     that top managers will be preoccupied for months, if not 
     years, with getting the reorganization right, thus giving 
     insufficient attention to their real job, taking concrete 
     action to counter the terrorist threat at home.

  This Brookings report advocated some consolidation of agencies, but 
it proposed a much smaller, more streamlined consolidation, and the 
report went on to say: ``Reorganization is not a panacea. In fact, 
there is a risk that reorganization could interfere with, rather than 
enhance, homeland security tasks.'' Certainly, changes should be made 
only when there is a compelling case that consolidation offers clear 
  I supported a proposal--and this leads up to my question--that the 
Senator from West Virginia offered earlier in the consideration of this 
issue, which would have undertaken to do a reorganization, but would 
have phased it and would have brought it back at periodic times for 
further scrutiny, examination, and implementation by the Congress. Was 
that the approach which the Senator had taken?
  Mr. BYRD. Yes, it was. Mr. President, if I may respond to the 
distinguished Senator. The amendment I offered to the legislation that 
was being proposed by Mr. Lieberman in his committee, the language I 
offered with several cosponsors and supporters, such as the 
distinguished Senator from Maryland, Mr. Sarbanes, would have provided 
for the recommendations of the administration to come back to the 
Congress periodically--every 4 months, for the next 12 months--which 
recommendations would have to do with the phasing in of the various and 
sundry agencies, a few at a time, three times, every 120 days. Some 
of the agencies would be phased in.

  Those recommendations would come back to the Congress and would go to 
the appropriate committees having jurisdiction--in this case it would 
be Mr. Lieberman's committee and his committee's counterpart in the 
House of Representatives--and expedited procedures would require that 
committee to act to bring out a bill implementing those 
recommendations, or amending them or changing them. Then the Senate, 
under expedited procedures, would proceed to call up that bill and pass 
it. That would be done three times.
  So the amendment which the distinguished Senator from Maryland refers 
to would provide for a phased-in approach over the same period of time 
that is going to be utilized by the President and the Secretary under 
this bill--namely, 12 months--and over that same period of time a 
phased-in approach with Congress still in the mix. Congress would still 
have a say at each of these three junctures.
  Mr. SARBANES. It seems to me that this is a far more sensible way to 
proceed. First, I think it maintains a better balance with respect to 
the roles of the executive and the legislative branches of our 
Government. I think the Senator has been absolutely right to underscore 
the fact that what is at stake here is a tremendous grant of authority 
to the executive branch.
  Mr. BYRD. Tremendous.
  Mr. SARBANES. It is sweeping in its dimension.
  Mr. BYRD. Sweeping.
  Mr. SARBANES. Secondly, I think that review process is more likely, 
far more likely, to produce beneficial results, because as the Senator 
said earlier today, the more scrutiny and discussion you have, the 
higher the likelihood--not a guarantee, but the higher the likelihood--
that you will have a better result.
  As I have listened to the Senator over these weeks of the debate, I 
have increasingly come to have very deep concerns about what we are 
doing with this legislation. I feel for the Senator when he says people 
are not--even now, as we near the last hour, focusing fully on the 
implications and the consequences of what we are discussing.
  Back in September, the Baltimore Sun published an editorial, and I 
want to read a couple of paragraphs from it. This is from September 23 
of this year:

       Months of debate have made clear that this bureaucratic 
     boondoggle offers no promise of making the homeland more 
     secure. Worse, it takes the focus off the need for tighter 
     oversight of the Nation's security systems. President Bush 
     offered the most sweeping government reorganization in a half 
     a century, largely as a political and public relations 
     tactic. He was trying to counter Senate Democrats who were 
     advancing similar legislation of their own. He timed the 
     unveiling of his plan to drown out the testimony of FBI Agent 
     Coleen Rowley, who was blowing the whistle on the security 
     failures of her hidebound agency that blinded it to the clues 
     of the September 11 attacks. Shifting 22 Federal agencies and 
     170,000 workers into a new department will cost billions but 
     will do nothing to solve the problems agent Rowley

[[Page S11194]]

     addressed. What is needed is greater sharing, coordination 
     and synthesis of the security information collected by the 
     myriad agencies. But this new department will not even 
     include the FBI and the CIA which are the two premier 
     intelligence gatherers. Nor is there any guarantee that 
     greater sharing would take place between them if they were 

  I think this is right on point and parallels much of what the 
Senator, as I understand it, has been arguing.
  Mr. BYRD. Mr. President, before I respond to the distinguished 
Senator from Maryland, I understand that the able Senator from Hawaii, 
Mr. Akaka, has a unanimous consent request he would like to make. Will 
the Senator from Maryland yield for that request since this is on his 
  Mr. SARBANES. Certainly.
  Mr. AKAKA. I thank the Senator from West Virginia and the Senator 
from Maryland for yielding to me.
  Mr. President, I ask unanimous consent that my hour under cloture be 
yielded to Senator Byrd.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BYRD. Mr. President, I thank the distinguished Senator from 
Hawaii, Mr. Akaka, who is about to take the chair. He wanted to make 
the request before he took the chair.
  Mr. REID. Mr. President, I ask unanimous consent that the order now 
in effect, that there be debate only until 3:30, be extended until 5 
o'clock today.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BYRD. On the time of the distinguished Senator, let me be just a 
little bit loquacious in my response. I have served in this Senate for 
44 years and in the Congress for 50 years. In my time in the Senate and 
in the House, the Senator from Maryland--I don't have to say this; I 
don't owe the distinguished Senator from Maryland the tribute I am 
about to say, except it is honest and he is entitled to it.
  We often pass around our warm words of praise because we are Senators 
and this is a happy family here. I admire this son of ancient Greece. 
He is a son of Athens. He is American. He grew up in this country. His 
parents came to this country. He knows what being an immigrants means. 
He is a Rhodes scholar. I can't say that about Robert Byrd. But this 
man from Maryland is a Rhodes scholar. He is a true son of Athens, a 
son of the people whom Socrates, Sophocles, and Plato were a part. He 
is one of the most thoughtful Senators I have ever seen.
  When I was majority leader and when I was minority leader--thank 
Heavens, thank Heavens that experience is in the background now; it is 
long past--but when I was the leader duly elected by my colleagues, I 
always had meetings in which I tried to get from the most brilliant, 
most thoughtful Senators on my side of the aisle, their thoughts, their 
opinion, their advice as to this or that issue, whatever issue might be 
before the Senate or about to come before the Senate. Paul Sarbanes was 
one who was always there. He was never out of the room. Not because he 
was the ``yes'' American. He wasn't, by any means. But I knew I would 
get the real stuff from Paul Sarbanes.
  Here is a man who is head and shoulders above some Senators with whom 
I have served, and I have served with a great many Senators. This man 
is a true thinker. We have seen the picture of The Thinker. This is the 
thinker, Paul Sarbanes.
  A little while ago he said something which brought to my mind the 
words of William Wordsworth who said: No matter how high you may be in 
your department, you are still responsible for the actions of the 
lowliest clerk in your department.
  I forget now what the Senator said, but it brought that thought to 
mind. We are talking about 28 agencies. Who is going to be responsible 
for the lowliest clerk's actions in this conglomeration, the epitome of 
chaos that will occur?
  I thank the distinguished Senator from Maryland. Please, if he has 
something further I will sit down at any moment. If he has anything 
further of me, I will be glad to respond.
  (Mr. AKAKA assumed the Chair.)
  Mr. SARBANES. First, Mr. President, I appreciate the generous and 
gracious remarks of the distinguished Senator from West Virginia. I 
must say that with all of my schooling he mentioned, I have learned 
more from him than at any other point along the way. I am extremely 
appreciative to him for that.
  I did want to cite this quote that the Senator has used in the course 
of this debate, which is so appropriate to our situation, from the 
Roman poet and the adviser to Nero, Gaius Petronious Arbiter. It is 
another instant in which the Senator has enlightened this institution 
through his use of Roman history. The quote could not be more on point. 
It is written as though it were written for the current situation. It 
is as follows:

       We trained hard, but it seemed that every time we were 
     beginning to form into teams, we would be reorganized.
       I was to learn later in life that we tend to meet any new 
     situation by reorganizing, and the wonderful method it can be 
     for creating the illusion of progress while producing 
     confusion, inefficiency, and demoralization.

  We could not have a more appropriate quote to the situation that we 
are confronting today.
  If the Senator would indulge me for just a couple of minutes, I tie 
in with the demoralization, confusion, and inefficiency what this 
legislation is doing to loyal, dedicated, hard-working, committed 
Federal employees. I am very frank to say taking from our employees 
rights that they now have, which this legislation will do on the 
grounds of flexibility to enhance homeland security, will do just the 
contrary. It will deal a blow to homeland security. We are talking 
about dedicated employees who are serving our country. They have been 
involved in protecting homeland security. They are loyal and committed 
workers. We want them to go on providing our high level of service, yet 
this legislation does not protect longstanding rights to bargain 
collectively about issues of importance, nor does it retain important 
civil service protections which have been worked out over a very long 
period of time.
  The Federal employees in this new Department, all of whom are already 
working to protect our national security, ought to have the same rights 
and protections they heretofore have had. Taking these rights away, 
cutting them down, will undercut the morale of these employees. We will 
get lesser performance, although I think these are very dedicated 
people. In contrast, if we protect our workforce, our workforce will 
protect us.
  Let me turn it around the other way. Our federal employees have been 
protecting us. Why should we withdraw from them important employee 
protections? Many of these protections came into being in order to 
protect whistleblowers who are trying to do a better job, to eliminate 
cronyism or favoritism or unfair labor practices. Some say that 
membership in unions by employees in the Homeland Department will 
impede efforts to protect our national security. I find this difficult 
to understand. There are currently 200,000 union employees--employees 
who have a union affiliation--at the Department of Defense. Many of 
those employees have high-level security clearances. This never seemed 
to impair our national security during the cold war. Many of the first 
responders on September 11 were union members. Their membership in 
unions in no way hindered their remarkable displays of bravery. They 
were thinking only of their duty to their country.

  Many agencies that already protect homeland security have union 
members amongst their ranks: The Border Patrol, the Customs Service, 
the Federal Emergency Management Agency, to name just a few. These 
employees are already doing their job well. Are they to be rewarded by 
stripping them of these union protections, of these civil service 
  We have spent a long part of our history working out these employee 
rights, and they are important to the success of the Government and to 
the attraction and retention of the best possible Federal employees. We 
ought not to be diminishing these rights and protections, as this 
legislation does.
  I think that stripping the employees of these protections will harm 
national security rather than help it. That is a subissue within the 
larger issue on which the Senator from West Virginia has been focusing, 
about the dislocation that is going to be created by this sweeping 
proposal, the one that brings us back, of course, to this wonderful 
quote from Gaius Petronius Arbiter.
  I urge my colleagues to reexamine this closely. I know this issue has 

[[Page S11195]]

been politicized. No one is against homeland security. No one is 
against enhancing the security that our people feel, and protecting it. 
The question then becomes, what is the best way to do it?
  We have had studies on this point. The Brookings Institute made a 
very careful evaluation. They said they thought some consolidation was 
in order, but they thought it should be limited, it should be done 
carefully, it should be done thoughtfully, it should be done with 
prudence. They pointed out, of course, that it is a huge managerial 
undertaking; that it becomes more daunting as the number of agencies to 
be included increases. And then last summer they said in their report:

       The danger is top managers will be preoccupied for months 
     if not years with getting the reorganization right, thus 
     giving insufficient attention to their real job, taking 
     concrete action to counter the terrorist threat at home.

  I think that is absolutely on point and it is a point which the able 
Senator from West Virginia has made repeatedly, of course, during this 
debate. It really tracks what Gaius Petronius Arbiter said, when he 

       I was to learn later in life that we tend to meet any new 
     situation by reorganizing, and a wonderful method it can be 
     for creating the illusion of progress while producing 
     confusion, inefficiency, and demoralization.

  Mr. BYRD. Hear, hear, hear.
  Mr. SARBANES. And that is exactly what we are confronted with here.
  Mr. President, I thank the Senator for yielding, and I yield the 
  Mr. BYRD. Mr. President, I thank the distinguished Senator for his 
contribution today, and for his references to the ancient Roman, Gaius 
Petronius Arbiter, whom the Senator from Maryland more than once has 
quoted on this floor. I thank the Senator for his defense of the 
patriotic Federal employees who work day and night to protect us.

  Mr. President, we will not have one whit more protection with the 
passage of this 484 pages, not one whit protection more than we have 
now. The same people who will protect us at the borders, at the ports, 
at the airports and throughout the land at the ports of entry, the same 
people who will protect us then are out there now. They are there day 
and night protecting us.
  So I thank the distinguished Senator from Maryland.
  Mr. President, continuing my statement, and I will not be overly 
long, probably the most egregious provision inserted is a White House-
backed provision designed to head off dozens of potential lawsuits 
against Eli Lilly and Company and other pharmaceutical giants that are 
being sued by parents who have linked their children's autism to those 
companies' childhood vaccines. The language would keep the lawsuits out 
of State courts, ruling out huge judgments and lengthy litigation and, 
instead, channel complaints to a Federal program set up to provide 
liability protection for vaccine manufacturers. The program, funded 
through a surcharge on vaccines, compensates persons injured by such 
vaccines to a maximum of $250,000.
  A number of Senators, including the very distinguished Senator from 
Michigan, Ms. Stabenow, strongly criticized these provisions yesterday. 
And yet at the same time, some Senators who have made these 
statements--not the Senator whose name I have expressed just now--but 
some Senators at the same time have pledged to vote in favor of this 
bill, regardless of whether these provisions are included or removed. 
How about that. We are acting as though this is a conference report 
that cannot be amended, as though its passage is a fait accompli. We 
still have the opportunity to amend this bill, except for the fact that 
our Republican friends on the other side of the aisle have said: This 
far and no further. We have got an amendment pending in the tree and 
that is all you will get. You will get a vote on that amendment--up or 
down on or in relation to it, I suppose, at the end of the 30 hours--
but no more amendments. That is it. That is the only amendment.
  Well, we will see about that.
  We still have the opportunity to amend the bill, at least the basic 
bill, H.R. 5005, even postcloture. So this amendment introduced by 
Senator Daschle will strike language in this bill which the Senate has 
not previously considered, the language that would allow the Homeland 
Security Secretary to establish advisory committees within the Homeland 
Security Department and to exempt these committees from the Federal 
Advisory Committee Act.
  When I saw that in the amendment that the leader was introducing on 
behalf of Mr. Lieberman--I saw that in the amendment, and I immediately 
wanted my name attached because I have been complaining, I have been 
criticizing that, complaining about that language in the bill.
  This statute which has been on the books, the Federal Advisory 
Committee Act, which has been on the books for 30 years, ensures that 
the ad hoc committees used to craft policy in the executive branch 
provide objective advice that is accessible to the public. These public 
disclosure rules allow Congress and the media and groups outside of 
Government to know how the executive branch is making important policy 
  Section 871 of this new substitute we have just been given, less than 
60 hours ago, provides the Secretary of Homeland Security blanket 
authority to exempt all advisory committees in the Department from 
existing public disclosure rules. This provision was not included in 
Senator Lieberman's substitute, but it has been slipped into this new 
bill, which was made available to us, as I say, less than 60 hours ago, 
with the hope that Senators will not have enough time to scrutinize 
this dramatic change to existing statute.
  Many of the advisory committees in this new Homeland Security 
Department will be dealing with issues of national security that should 
not be subjected to public disclosure rules. But the Federal Advisory 
Committee Act already allows the President to exempt these public 
disclosure rules for advisory committee for national security reasons. 
This is authority that the President has used for 30 years, and 
authority he will be able to use for advisory committees in the 
Homeland Security Department.
  But instead of relying on the President's current authority to exempt 
committees on a case-by-case basis, the new language in this bill 
allows the Secretary to exempt ANY advisory committee from public 
disclosure rules, regardless of whether national security is pertinent 
or not.
  This new blanket authority is not necessary. As a matter of fact, we 
ought not have it. It shouldn't be that way because it interferes with 
the people's right to know, and it is a danger to our liberty. It is a 
danger to our constitutional system.
  The provisions in this bill allow the Secretary to use ad hoc 
advisory committees to craft policy in secret, without making specific 
findings that such secrecy is necessary in any particular instance.
  The press, I hope, will read this bill and understand this bill. I 
hope the press is fully aware of how this presents a danger and a 
threat to the media's efforts to probe, to ask questions, and to 
scrutinize and to protect the public's right to know.
  This unnecessary new blanket authority will give the President carte 
blanche to respond and expand the culture of secrecy that now permeates 
this White House--this administration.
  Let me say that again.
  This unnecessary new blanket authority can be used to give the 
President carte blanche to expand the culture of secrecy that now 
permeates this White House--this administration.
  The public disclosure exemptions in this bill are a license for 
abuse. They are a danger. They are un-American. They should not become 
  I hope that Senators, before they cast their vote on the passage of 
this bill, will think about this. I hope they will be prepared to 
answer the public--their constituents--in the next election, whatever 
election down the road awaits them. I hope they will be prepared. There 
are going to be stories in the press as time goes on, I would wager, 
about this particular authority that the Senate will extend with 
passage of this bill to this administration and to this new 
Department--to the Secretary of this new Department.
  We see on the front page of the Washington Times today--I have 
already mentioned the Wall Street Journal, and I mentioned the 
Washington Post. Now I call attention to the front page of the 
Washington Times this morning. There is a headline which reads

[[Page S11196]]

``Homeland Bill a Supersnoop's Dream.''
  There are many dreams to which we can allude--Jacob's dream--the 
  ``Homeland Bill a Supersnoop's Dream.''
  In yesterday's New York Times, William Safire warned that if this 
homeland security legislation is passed as it is currently written, the 
Federal Government may be planning to use its new intelligence 
authority to compile computerized dossiers on every American citizen, 
including ``every piece of information that government has about you . 
. . ''
  --every piece of information that the Government has about you, each 
of you, about you, about you, about you--
  . . . including ``every piece of information that government has 
about you--passport applications, driver's license, bridge toll 
records, judicial and divorce records, complaints from nosy neighbors 
to the FBI, your lifetime paper trail . . . ''
  That is a long trail.
  . . . ''your lifetime paper trail plus the latest hidden camera 
  No one knows about those hidden cameras and where they are.
  They may be looking at you. Who knows. They may be in your office 
looking at you.
  Do we need to add to all of this by providing even more authority for 
the Federal Government to hide decisions behind locked doors--decisions 
which affect the safety of every man, woman, and child in this Nation?
  Exampting these committees from the Federal Advisory Committee Act 
also removes requirements that the advice of these committees be 
objective and that the membership of the committees represent balanced 
viewpoints on the issues. With this new authority, the Secretary will 
not have to make any effort whatsoever to ensure the integrity and 
objectivity of these committees.
  The language in this bill--here it is--484 pages. It wasn't around a 
week ago today. Nobody saw one page a week ago today. This bill didn't 
exist a week ago today.
  The language in this bill even exempts individual members of advisory 
committees from financial conflict-of-interest rules. We should not 
allow our homeland security policies to be crafted by corporate 
advisors with a financial interest in those policies. This bill should 
not become a vehicle for lining the pockets of corporate fat cats.
  Section 232 of the new bill also exempts advisory committees within 
the Office of Science and Technology in the Justice Department. This 
means that this new office, which will serve as the focal point for 
developing law enforcement technology, may rely on advisory committees 
whose members have a personal stake in the policy recommendations 
adopted by the committees. I am worried that exempting this new Science 
and Technology Office will allow the administration to provide special 
treatment for corporate campaign contributions who are pushing new 
anti-terrorism technologies.
  It worries me that issues as important as homeland security and the 
safety of the American people may be decided in secret by ad hoc 
committees that are exempt from traditional good government laws. Under 
this language, the Secretary will be able to exempt not only new 
advisory committees, but also existing committees that are transferred 
into the Department along with these 28 agencies and offices.
  This amendment, which I have cosponsored, will strike this exemption 
authority from the bill.
  This dangerous new authority should not be slipped under the cover of 
darkness, as it were, into legislation that Senators have had little 
time to study or amend. If the Secretary of the new Department of 
Homeland Security needs this blanket authority, let him come to 
Congress and make his case. Congress must not hand over blanket 
authority to this administration which would allow it to cloak 
decisions in secrecy.
  Now, Senators, this is what we are about to vote on, this bill. Now, 
if the amendment fails, Senators should not then go ahead and vote for 
this bill. If this amendment to strike these provisions fails to be 
adopted, Senators have no right then to go home and say: Well, I voted 
for the amendment. I was for that, but it failed and I, therefore, went 
ahead and voted for this bill.
  What a crappy bill. Don't hide behind your vote when you vote on this 
amendment or you vote in relation to it or whatever the vote is when it 
comes. Don't hide behind that. If that amendment fails, don't hide 
behind that and say: Well, I voted for the amendment, and so I tried to 
get it in there, but the Senate voted it down, so I went ahead and 
voted for the bill. Shame on you. And your constituents should say so: 
Shame on you. Now, you say you voted for the amendment, and that the 
Senate didn't adopt it. Your convictions were not very strong, so you 
went ahead and voted for the bill, then, after that amendment failed. 
Shame on you.
  Mr. President, I don't know of any measure that has ever come before 
the Senate in connection with which I have spoken more passionately, 
with greater conviction, than I have in regard to this bill. I have no 
special ax to grind. No, I have no special ax to grind. I am on 
nobody's payroll except the people's.
  I am concerned about this. I am more concerned about this bill than I 
believe any bill I have ever voted on or will ever have voted on. And I 
have cast more votes than any Senator in the history of this Republic.
  I have no special ax to grind. You say: Well, he's 85. He won't be 
running again. Don't bet on it. Don't bet on it. That is a matter for 
the Good Lord to determine and the people of the State of West 
Virginia. So don't count me out. There are those who may say: Don't 
count me in. I believe there is a song to that effect: ``Don't Count Me 
In.'' But don't count me out.
  That is my belief.
  This dramatic reduction of transparency should not be clandestinely 
slipped into this eleventh-hour legislation, and the Senate should not 
allow such a dangerous provision to be rushed through this Chamber 
during the final minutes of this Congress.
  So shame on you if you vote for this amendment, and then, if it 
fails, you turn around and vote for this 484-page bill. Don't use that 
as an excuse when you go back to your constituents.
  Every Senator has the right to do what he thinks best, but, believe 
you me, your constituents, if you vote for this bill--if that amendment 
fails, and you still vote for this bill, I hope you won't try to hide 
behind your vote for the amendment that is before the Senate: Oh, I 
voted for that amendment, but the Senate rejected it, so I then felt 
that I had done my best, and I went ahead and voted for the bill. Shame 
on you.
  This administration has worked hard to keep the Congress out of the 
loop. The President has sought to isolate himself from the American 
public and their Representatives in Congress. He has asked for the 
Congress to provide him with broad statutory powers to further block 
congressional involvement.
  That is what this bill will do. Pass this bill, and you will say to 
the President: Well, I don't know what your plan is--you have not told 
us what your plan is--but we have approved it. Here it is. Here is the 
bill. So you have the next 12 months in which to determine your plan, 
and all you need to do--we hope you will tell us about it. The language 
here provides for the President ``informing'' the Congress about the 

  Well, in some cases, Senators have supported the President on these 
issues, either to show unity with the leader of their party or because 
they fear political attacks if they do not. Less and less, it seems to 
me, do we think about these grants of power that will affect the 
constitutional checks and balances and separation of powers that 
protect the constitutional freedoms of our country.
  I must say this, that the shelf life of appreciation one might expect 
from this administration, in having supported it--those of us, may I 
say, on this side of the aisle, in particular--the shelf life of 
appreciation from this administration for your efforts to curry favor 
with the administration, if that is what it is, is very short indeed.
  We saw that in the case of the distinguished Senator from Georgia, 
Mr. Cleland. We saw that in the case of the distinguished Senator from 
Missouri, Mrs. Carnahan. We have seen it in the cases of other Senators 
who supported the administration. They did

[[Page S11197]]

what they thought was right. But in any event, their votes were in 
support of the administration on various issues--the tax cut, the Iraq 
war resolution, whatever it might have been--and yet, the President, 
himself, went into those very States and campaigned against those 
Senators. So this administration's thanks don't go very far, may I say 
to Senators.
  So the best thing to do, as always, is to do your best, vote your 
convictions, and stand by your people who send you here, and stand by 
the Constitution.
  Henry Clay, as a Senator from Kentucky in 1833, in building the case 
for the censure of President Andrew Jackson, asked the Senate:

       How often have we, Senators, felt that the check of the 
     Senate, instead of being, as the Constitution intended, a 
     salutary control, was an idle ceremony . . . We have 
     established a system, in which power has been most carefully 
     separated and distributed between three separate and 
     independent departments. We have been told a thousand times, 
     and all experience assures us, that such a division is 
     indispensable to the existence and preservation of freedom. . 
     . .

  This is Henry Clay talking:

       The president, it is true, presides over the whole . . . 
     but has he power to come into Congress, and to say such laws 
     only shall pass . . . to arrest their lawful progress, 
     because they have dared to act contrary to his pleasure? No, 
     sir; no, sir.

  Well, Henry Clay was an opponent of the Presidential veto. He thought 
that was a despicable thing, the President's veto.

  So he spoke, as I have just read. He spoke of the President and he 
said: It is true, he presides over the whole:

     . . . but has he power to come into Congress, and to say such 
     laws only shall pass . . . to arrest their lawful progress, 
     because they have dared to act contrary to his pleasure? No, 
     sir; no, sir.

  The Senate must not blindly follow in the name of party unity. I 
don't blindly follow in the name of the Democratic Party unity. I don't 
do that. I won't do that. That will not be my guiding star. In storm or 
in tempest or in fair weather, that will not be my guiding star.
  The Senate must not blindly follow, in the name of party unity or 
under the yoke of political pressure, a shortsighted path that 
ultimately undermines our sworn duty to support and defend the 
  I will vote against this homeland security bill because even the 
amendment that is before the Senate is not enough. I have some 
amendments that I would like to offer. If this amendment fails, I would 
like to offer my amendments. It is very questionable as to whether I 
will get to do that, very questionable as to whether or not those 
amendments will pass the Senate. I doubt that they will.
  So I intend to vote against this homeland security bill. I will raise 
my voice as long as I have a voice, and I will raise my hand as long as 
I can raise that hand to attempt to derail this blatant power grab and 
giveaway of the people's liberties.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. AKAKA. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Barkley). Without objection, it is so 
  Mr. AKAKA. Mr. President, I ask unanimous consent that I be able to 
reclaim 5 minutes of my time that I yielded to Senator Byrd.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator from Hawaii is recognized.
  Mr. AKAKA. Mr. President, I rise in support of the amendment offered 
by Senator Daschle, Senator Lieberman, and Senator Byrd to the pending 
legislation concerning homeland security.
  I voted earlier against invoking cloture on this legislation because 
in part I disagreed with many of the amendments which were added at the 
last moment by the House to this bill. The amendment offered by Senator 
Daschle and Senator Lieberman would correct many problems in this House 
bill, although not all. There is much about the underlying bill which 
still needs to be corrected. I laid out earlier my concerns. Today 
however, I want to address the House's legislative ``add-ons'' that 
should be stripped from this bill. I think it is clear what the house 
has done in the midnight hour of this Congress.
  The House leadership has taken a moving train--legislation for a 
Department of Homeland Security--and attached gilded carriages for 
their special friends to travel on this legislative express.
  What has been added does not enhance the security of the American 
people. It enriches a select few companies and special individuals, and 
very special people. One provision is clearly meant to earmark a new 
university-based homeland security research center program for Texas 
A&M University, avoiding an open and competitive award process. All of 
us have universities, distinguished centers of higher learning in our 
states, all of which would welcome the opportunity to make their case 
for this funding. but under this bill, they will not get that chance. 
However, if the Daschle amendment passes, other colleges and 
universities would be permitted to demonstrate their competence to be a 
center for homeland security research, including Texas A&M.
  Another provision in this legislation would limit liability to 
companies producing homeland security technologies. The main intent of 
this provision is to eliminate the ability of Americans to obtain 
compensation should they be harmed by any of these technologies. The 
provision is open-ended. It does not define how anti-terrorism 
technologies will be identified. Under the liability provision 
sections, the Secretary has the discretion to designate which 
technologies will benefit from this additional protection from 
liability. This section is not about stimulating the development of new 
technologies to protect us. It is about finding new ways to protect 
companies from legal liability. Indeed one section of this bill is 
labeled ``Litigation Management.'' That says it all.
  The subparagraphs, almost too small to be noticed, undermine the 
Federal Advisory Committee Act, or FACA, and the public's right to know 
the make-up, meeting schedules, and findings of federal commissions, 
committees, councils, and task forces. These groups are chartered by 
the President, Congress, and agency heads to give independent advice 
and recommendations on substantial policy issues and technological 
  Congress enacted FACA in 1972 to address concerns of committees being 
redundant, having inadequate oversight, using secretive operations, and 
not representing public interest. FACA requires that the advice 
provided by such committees be objective and responsive to public 
concerns. Committee meetings are required to be open and properly 
noticed, with specific exceptions. The House bill would give the 
Secretary of Homeland Security a blanket exemption from FACA 
requirements once the Secretary notices the creation of a committee and 
its intent. One wonders why the House Leadership wants to overturn 
sunshine rules. What do they want to hide?
  This is a very serious matter. What sort of oversight will these 
committees have? Who will serve on them? Will all interests be 
represented? How will we confirm that the public interests have been 
met? To allow the Secretary of Homeland Security to set up advisory 
committees that are free from the balanced regulations of FACA is to 
retreat back to a time when special interests groups ran roughshod over 
the public's interest and recommended one sided-views without 
appropriate oversight.
  The original Lieberman substitute, and the original Gramm-Miller 
amendment, were based upon provisions that were debated and discussed 
within the Governmental Affairs Committee through hearings and business 
meetings. The bill before us today has several provisions that have not 
had that treatment and will directly benefit the airline and rail 
companies and other special interests.
  The Governmental Affairs Committee spent weeks and months studying, 
debating, and drafting legislation on homeland security. In contrast, 
this bill was not written in committee and some parts of the bill 
before us today have had only special interest input. That is not the 
best way to ensure public safety and national security.
  I yield my time, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.

[[Page S11198]]

  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.