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[Congressional Record: November 19, 2002 (Senate)]
[Page S11405-S11455]
From the Congressional Record Online via GPO Access []
                              S E N A T E

Vol. 148


No. 150--Part II

[[Page S11405]]


                HOMELAND SECURITY ACT OF 2002--Continued

                             The safety act

  Mr. CHAFEE. Madam President, I would like to thank the Republican 
Leader for his willingness to address concerns raised by me and our 
colleagues from Maine regarding certain provisions in H.R. 5005, the 
Homeland Security Act of 2002.
  In the interests of clarity, I wanted to discuss one aspect of the 
Support Anti-Terrorism by Fostering Effective Technologies (SAFETY) Act 
of 2002, which is included in H.R. 5005. The SAFETY Act provides that 
the ``government contractor defense'' will be available to certain 
sellers of anti-terrorism technology. In Boyle v. United Technologies 
Corp., 487 U.S. 500, 108 S. Ct. 2510 (1988), the U.S. Supreme Court 
recognized that the government contractor defense offers relief to 
certain defendants from liability for design defects. It is my 
understanding that the drafters of the SAFETY Act were aware of the 
Boyle decision and intended for the government contractor defense to 
apply solely to design defect claims, rather than offering blanket 
relief to any and all causes of action.
  Mr. LOTT. I concur with the Senator from Rhode Island. It is clear 
that the government contractor defense contained in the SAFETY Act 
could be raised only in response to design defect claims.
  Mr. CHAFEE. I thank the Republican Leader, and look forward to the 
opportunity to correct three other provisions of the Homeland Security 
Act when the 108th Congress convenes in January.

                            First Responders

  Mr. DAYTON. Madam President, I would like to speak about a very 
important first responder matter which, I hope, the Senate will include 
in the Homeland Security Act of 2002.
  By definition, emergency management usually occurs in crisis. The 
incident managers must assess the emergency, organize the staff, and 
direct their responses under very difficult conditions. Currently, 
however, many first responders are not fully prepared for attacks like 
September 11, 2001.NOTICE

If the 107th Congress, 2d Session, adjourns sine die on or before 
November 22, 2002, a final issue of the Congressional Record for 
the 107th Congress, 2d Session, will be published on Monday, 
December 16, 2002, in order to permit Members to revise and extend 
their remarks.
All material for insertion must be signed by the Member and 
delivered to the respective offices of the Official Reporters of 
Debates (Room HT-60 or S-123 of the Capitol), Monday through 
Friday, between the hours of 10:00 a.m. and 3:00 p.m. through 
Friday, December 13. The final issue will be dated Monday, December 
16, 2002, and will be delivered on Tuesday, December 17, 2002.
None of the material printed in the final issue of the 
Congressional Record may contain subject matter, or relate to any 
event that occurred after the sine die date.
Senators' statements should also be submitted electronically, 
either on a disk to accompany the signed statement, or by e-mail to 
the Official Reporters of Debates at ``''.
Members of the House of Representatives' statements may also be 
submitted electronically by e-mail, to accompany the signed 
statement, and formatted according to the instructions for the 
Extensions of Remarks template at The 
Official Reporters will transmit to GPO the template formatted 
electronic file only after receipt of, and authentication with, the 
hard copy, and signed manuscript. Deliver statements to the 
Official Reporters in Room 
Members of Congress desiring to purchase reprints of material 
submitted for inclusion in the Congressional Record may do so by 
contacting the Congressional Printing Management Division, at the 
Government Printing Office, on 512-0224, between the hours of 8:00 
a.m. and 4:00 p.m. daily.
By order of the Joint Committee on Printing.
MARK DAYTON, Chairman.

[[Page S11406]]


  The Homeland Security Act of 2002 includes provisions to improve the 
preparedness of emergency response providers. It is also designed to 
improve the Federal Government's response to terrorist attacks and 
other major disasters.
  To date, however, most of the homeland security training and 
consulting contracts have been awarded to Fortune 500 companies. 
Postsecondary educational institutions have been left out of the 
process. It is essential that our country's colleges and universities 
also collaborate on the design of homeland defense-integrated emergency 
management and training systems. Demonstration programs should train 
first responders to use new technologies that would reduce the 
devastations from terrorist attacks. They can integrate these 
technologies into management procedures that will improve 
accountability, command, and control. The results of those 
demonstration programs could then be disseminated nationwide.
  Am I correct to assume that funding for colleges and universities to 
develop homeland defense-integrated emergency management and training 
systems could be provided through provisions in the Homeland Security 
Act of 2002?
  Mr. LIEBERMAN. I will request that the new Secretary of the Homeland 
Security Department give attention to the concerns about emergency 
management raised by the Senator from Minnesota, and I hope that 
homeland defense-integrated emergency management and training systems 
will be given due consideration for funding through grants from the 
extramural programs.
  Mr. DAYTON. I thank the Senator for his consideration and support.

                  Background Checks for Truck Drivers

  Mr. McCAIN. Madam President, last November, Congress included a 
provision in section 1012 of the USA Patriot Act, P.L. 107-56, which 
requires all commercial truck drivers who haul hazardous materials to 
undergo a background records check before receiving or renewing their 
Commercial Driver's License, CDL, endorsement to haul hazmat. 
Unfortunately, over a year has passed and regulations to promulgate 
this requirement have not been issued.
  Mr. HOLLINGS. I want to associate myself with the concerns raised by 
my colleague. This is a very important issue to both of us. In fact, we 
worked together in a bipartisan fashion on S. 1750, the Hazmat 
Endorsements Requirements Act, which would clarify existing law and 
guide the process for administering the checks. The Senate Commerce 
Committee approved S. 1750 in April without objection. However, the 
Senate has not taken up this legislation, nor has the Department of 
Transportation issued a rulemaking to implement Section 1012.
  Last week, we took an important step forward in addressing Port and 
Maritime Security when we passed S. 1214. That important measure 
includes requirements for background records checks for many port 
workers, and clarifies that if a driver holds a valid CDL with a 
hazardous materials endorsement obtained after a background records 
check, the driver would not need to have a duplicative check to access 
secure port areas. Unfortunately these checks are not being performed 
and it is unlikely that will change until the DOT issues a rule or the 
Congress approves legislation to address concerns regarding the hazmat 
endorsement background records check requirements enacted last year.
  Mr. McCAIN. That is correct. We have not fully addressed the issue of 
background checks for commercial drivers and more work remains.
  Mr. HOLLINGS. I hope we can continue our bipartisan work on this 
important issue early next year to ensure the requirements in the USA 
Patriot Act will be carried out and that truck drivers are afforded a 
right to a formal appeals process.
  Mr. McCAIN. I agree that the issue must be addressed. In the absence 
of any regulatory action by DOT, I will certainly want to continue our 
joint efforts to provide the appropriate guidance to DOT and the states 
on this important security matter.
  Mr. HOLLINGS. I thank my colleague and look forward to working with 
him on this issue during the next Congress.

                        AGRICULTURAL PROVISIONS

  Mr. HARKIN. Madam President, as Chairman of the Senate Committee on 
Agriculture, Nutrition and Forestry, I want to enter into a colloquy 
with the ranking minority member of the Committee, Senator Lugar, 
regarding the agricultural provisions in the compromise homeland 
security legislation.
  Mr. LUGAR. I am pleased to join with my colleague to discuss some of 
the agricultural provisions in this legislation. A provision in Section 
421 dealing with the transfer of certain agricultural inspections from 
the U.S. Department of Agriculture--USDA--to the new Department of 
Homeland Security--DHS--needs clarification. This section requires that 
USDA and DHS enter into a transfer agreement and stipulates that the 
agreement shall address USDA supervision of training of employees who 
will be carrying out agricultural inspection functions at the new DHS 
and the transfer of funds from USDA to the new DHS. We want to make 
clear that we expect that the transfer agreement shall include these 
components and that USDA will be responsible for agricultural 
inspection training and that appropriate funds would be transferred 
from USDA to the new DHS.
  Mr. HARKIN. I agree with your interpretation of that provision. I 
also want to provide additional explanation about a section that 
originated from our mutual concern about the safety of food that enters 
our country. Like you, I have been concerned that agencies that inspect 
foods and food products that come through our borders do not have the 
ability to share information in order to jointly track shipment and 
other crucial information. As a result, we crafted a provision, now 
included in this legislation, to ensure that information systems--i.e., 
computers--will be coordinated across agencies with border security 
responsibilities. This includes agencies that will be housed in the new 
DHS as well as those like the Food and Drug Administration and the Food 
Safety Inspection Service--that will not, but have a homeland security 
  Mr. LUGAR. That is an important provision in this legislation. I also 
want to clarify a provision related to the transfer of the Plum Island 
Animal Disease Center from USDA to the new DHS. Due to a technical 
error, there appears to be a contradiction between Section 303(3) and 
Section 310 of the House passed bill. The intent of this bill is to 
transfer the assets and liabilities of this center, which is now part 
of USDA, but not the USDA personnel or functions. While I am fairly 
confident this technical error will yet be rectified, in implementing 
this new law, I would expect that the language in Section 310 would 
  Mr. HARKIN. Thank you for that clarification. Finally, we are aware 
that the Chairman and ranking minority member of the House Agriculture 
Committee, during consideration of this legislation in the House, 
entered into the Record their understanding of how these agricultural 
provisions would be implemented. While I question whether or not it is 
necessary to transfer Plum Island to the new DHS at this time, I concur 
with the House's interpretation of the provisions that are included.
  Mr. LUGAR. I also concur with their interpretation which follows and 
would expect that these agricultural provisions be carried out 
consistent with this description. I ask unanimous consent it be printed 
in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       Sec. 310. Transfer of Plum Island Animal Disease Center, 
     Department of Agriculture. Transfers the Plum Island Animal 
     Disease Center from the Department of Agriculture to the 
     Department of Homeland Security and requires the Secretary of 
     Agriculture and the Secretary of Homeland Security, upon 
     completion of the transfer, to enter into an agreement 
     providing for continued access by USDA for research, 
     diagnostic and other programs.
       The Committee recognizes the critical importance of the 
     Plum Island Animal Disease Center to the safety and security 
     of animal agriculture in the United States. The Committee 
     expects that the transfer of this foreign animal disease 
     facility to the new DHS shall be completed in a manner that 
     minimizes any disruption of agricultural research, diagnostic 
     or other USDA activities. Likewise, the Committee expects 
     that funds that have and continue to be appropriated for the 
     maintenance, upgrade, or replacement of agricultural 
     research, diagnostic and

[[Page S11407]]

     training facilities at the Plum Island Animal Disease Center 
     shall continue to be expended for those purposes.
       The Committee shares the goal of expanding the capabilities 
     of the Plum Island Animal Disease Center. Likewise, the 
     Committee supports the accompanying goal of building agro-
     terrorism prevention capabilities within the new DHS. With 
     this in mind, the Committee fully expects that in the absence 
     of alternative facilities for current USDA activities, the 
     Secretary of Homeland Security shall make every possible 
     effort to expand and enhance agricultural activities related 
     to foreign animal diseases at the Plum Island Animal Disease 
       Sec. 421. Transfer of Certain Agricultural Inspection 
     Functions of the Department of Agriculture.
       (a) Transfers to the Secretary of Homeland Security the 
     functions of the Secretary of Agriculture relating to 
     agricultural import and entry inspection activities.
       The Committee is aware that the Agricultural Quarantine and 
     Inspection Program of the Department of Agriculture's Animal 
     and Plant Health Inspection Service (APHIS) conducts numerous 
     activities with respect to both domestic and international 
     commerce in order to protect the health of agriculturally 
     important animals and plants within the United States. Within 
     the new DHS will be created a mission area of Border and 
     Transportation Security. In order that the new streamlined 
     border security program operates efficiently, the Committee 
     has transferred to the new DHS the responsibility for certain 
     agricultural import and entry inspection activities of the 
     USDA conducted at points of entry. This transfer will include 
     the inspection of arriving passengers, luggage, cargo and 
     means of conveyance into the United States to the Under 
     Secretary for Border and Transportation Security. In addition 
     to inspection at points of entry into the United States, 
     responsibility for inspections of passengers, luggage and 
     their means of conveyance, at points of departure outside the 
     United States, where agreements exist for such purposes, 
     shall be the responsibility of the Secretary of Homeland 
     Security. The provision allows the Secretary of Homeland 
     Security to exercise authorities related to import and entry 
     inspection functions transferred including conducting 
     warrantless inspections at the border, collecting samples, 
     holding and seizing articles that are imported into the 
     United States in violation of applicable laws and 
     regulations, and assessing and collecting civil penalties at 
     the border. The Committee intends that USDA will retain the 
     responsibility for all other activities of the Agricultural 
     Quarantine and Inspection Program regarding imports including 
     pre-clearance of commodities, trade protocol verification 
     activities, fumigation activities, quarantine, diagnosis, 
     eradication and indemnification, as well as other sanitary 
     and phytosanitary measures. All functions regarding exports, 
     interstate and intrastate activities will remain at USDA.
       (b) Delineates the laws governing agricultural import and 
     entry inspection activities that are covered by the transfer 
     of authorities.
       The Committee is aware that the authority to inspect 
     passengers, cargo, and their means of conveyance coming into 
     the United States is derived from numerous statutes that date 
     back, in some cases, more than 100 years. The Committee does 
     not intend that the reference to these statutes should be 
     construed to provide any authority to the Secretary of 
     Homeland Security beyond the responsibility to carry out 
     inspections (including pre-clearance inspections of 
     passengers, luggage and their means of conveyance in such 
     countries where agreements exist for such purposes) and 
     enforce the regulations of USDA at points of entry into the 
     United States.
       (c) Excludes quarantine activities from the term 
     ``functions'' as defined by this Act for the purposes of this 
       While agricultural inspection functions, as well as those 
     related administrative and enforcement functions, shall be 
     transferred and become the responsibility of the Secretary of 
     Homeland Security, the legislation retains all functions 
     related to quarantine activities and quarantine facilities 
     within USDA. Although the Committee has excluded quarantine 
     activities from those functions transferred to the new DHS, 
     the Committee does not intend to preclude the Secretary of 
     Homeland Security from taking actions related to inspection 
     functions, such as seizure or holding of plant or animal 
     materials entering the United States. These authorities fall 
     within the purview of inspection related enforcement 
     functions that shall be transferred to the Secretary of 
     Homeland Security.
       (d) Requires that the authority transferred to the 
     Secretary of Homeland Security shall be exercised in 
     accordance with the regulations, policies and procedures 
     issued by the Secretary of Agriculture; requires the 
     Secretary of Agriculture to coordinate with the Secretary of 
     Homeland Security whenever the Secretary of Agriculture 
     prescribes regulations, policies, or procedures for 
     administering the covered laws related to the functions 
     transferred under subsection (a); provides that the Secretary 
     of Homeland Security, in consultation with the Secretary of 
     Agriculture, may issue guidelines and directives to ensure 
     the effective use of personnel of the Department of Homeland 
     Security to carry out the transferred functions.
       One intention of this legislation is to create a 
     streamlined Border and Transportation Security program at 
     points of entry into the United States. With regard to the 
     protection of animal and plant health, the Committee does not 
     intend or expect the new DHS to make the determination of 
     what animals, plants, animal or plant products, soils, or 
     other biological materials present an unacceptable risk to 
     the agriculture of the United States. Policies and procedures 
     regarding actions necessary to detect and prevent such 
     unacceptable risks shall remain the responsibility of the 
     Secretary of Agriculture. Likewise, policies and regulations 
     defining restrictions on movement into the United States of 
     substances that would pose a threat to agriculture 
     shall continue to be the responsibility of the Secretary 
     of Agriculture.
       The Committee has provided authority for the Secretary of 
     Homeland Security to issue directives and guidelines in 
     consultation with the Secretary of Agriculture in order to 
     efficiently manage inspection resources. When exercising this 
     authority, the Committee expects that the agricultural 
     inspection function at points of entry into the United States 
     shall not be diminished, and as a result, the Committee 
     expects that Secretary of Homeland Security shall ensure that 
     necessary resources are dedicated to carrying out the 
     agricultural inspection functions transferred from the 
     Department of Agriculture.
       (e) Requires the Secretary of Agriculture and the Secretary 
     of Homeland Security to enter into an agreement to effectuate 
     the transfer of functions. The agreement must address the 
     training of employees and the transfer of funds. In addition, 
     the agreement may include authority for the Secretary of 
     Homeland Security to perform functions delegated to APHIS for 
     the protection of domestic livestock and plants, as well as 
     authority for the Secretary of Agriculture to use employees 
     of the new DHS to carry out APHIS functions.
       The Committee is aware of the unique nature and the 
     specialized training necessary for effective and efficient 
     border inspection activities carried out by the Agricultural 
     Quarantine and Inspection Program. The Committee expects that 
     the training of personnel and detector dogs for this highly 
     specialized function will continue to be supervised by the 
     Department of Agriculture. While a large proportion of the 
     personnel employed by the Agricultural Quarantine and 
     Inspection Program is permanently stationed at one of 186 
     points of entry into the United States, the Committee is 
     aware that the Secretary of Agriculture commonly redeploys up 
     to 20% of the border inspection force in order to manage 
     agricultural pests and diseases throughout the United States. 
     In completing the transfer of Agricultural Quarantine and 
     Inspection Program border inspectors to the DHS, the 
     Committee expects that the Secretary of Agriculture and the 
     Secretary of Homeland Security will enter into an agreement 
     whereby inspection resources, where possible, would continue 
     to be made available to the Secretary of Agriculture in 
     response to domestic agricultural needs.
       (f) Provides that the Secretary of Agriculture shall 
     transfer funds collected by fee authorities to the Department 
     of Homeland Security so long as the funds do not exceed the 
     proportion of the costs incurred by the Secretary of Homeland 
     Security in carrying out activities funded by such fees.
       Beginning in fiscal year 2003, the unobligated balance of 
     the Agricultural Quarantine and Inspection Fund will be 
     transferred to other accounts within USDA and will be used to 
     carry out import and domestic inspection activities, as well 
     as animal and plant health quarantine activities, without 
     additional appropriations. Fees for inspection services shall 
     continue to be collected and deposited into these accounts in 
     the manner prescribed by regulations issued by the Secretary 
     of Agriculture. In effectuating the transfer of agricultural 
     import inspection activities at points of entry into the 
     United States, the Committee intends that funds from these 
     accounts shall be transferred to the DHS in order to 
     reimburse the DHS for the actual inspections carried out by 
     the Department. The Committee expects that the Secretary of 
     Agriculture shall continue to manage these accounts in a 
     manner that ensures the availability of funds necessary to 
     carry out domestic inspection and quarantine programs.
       (g) Provides that during the transition period, the 
     Secretary of Agriculture shall transfer to the Secretary of 
     Homeland Security up to 3,200 full-time equivalent positions 
     of the Department of Agriculture.
       (h) Makes conforming amendments to Title V of the 
     Agriculture Risk Protection Act of 2000 related to the 
     protection of inspection animals.

                  federal alcohol and tobacco statutes

  Mr. GRASSLEY. Madam President, it is clear that the Secretary of the 
Treasury presently possesses the authority to administer the Federal 
alcohol and tobacco statutes referenced in the bill before us. These 
authorities currently are delegated to the Bureau of Alcohol, Tobacco 
and Firearms and now will be delegated to the new Tax and Trade Bureau. 
I appreciate this colloquy to confirm that the language in section 
1111(c) (1) concerning the transfer to the Department of Justice not 
only excludes the authorities, functions, personnel, and assets of the 
Bureau of Alcohol, Tobacco and Firearms

[[Page S11408]]

that will be retained within the Department of the Treasury as set 
forth in paragraph (2) of this section, but also excludes the functions 
of the Secretary of the Treasury that relate to these retained 
authorities, functions, personnel, and assets.
  Mr. BAUCUS. The Senator is correct.
  Mr. GRASSLEY. I also wanted to confirm that section 1111(b) as it 
relates to alcohol and tobacco only invests the Bureau of Alcohol 
Tobacco, Firearms and Explosives at the Department of Justice with the 
responsibility to investigate with respect to the Title 18 laws 
pertaining to the smuggling of alcohol and tobacco. All other 
investigatory responsibilities pertaining to alcohol and tobacco remain 
at the Department of the Treasury under the new Tax and Trade Bureau, 
or as otherwise delegated under existing law.
  Mr. BAUCUS. The Senator is correct and his reading is consistent with 
the provisions of this legislation.
  Mr. GRASSLEY. Finally, I wish to confirm that Treasury retained the 
authority to audit or investigate violations such as false or 
inaccurate records of production, false or inaccurate tax returns, 
failure to respond to delinquency notices, unlawful transfers in bond, 
and the unlawful production, labeling, advertising and marketing of 
alcoholic beverages.
  Mr. BAUCUS. That is correct, and I appreciate my good friend from 
Iowa for clarifying these points.

               Preserving Coast Guard Mission Performance

  Mrs. MURRAY. Madam President, I would like to thank the chairman of 
Governmental Affairs Committee, the Senator from Connecticut, for his 
tireless efforts and leadership concerning the creation of the 
Department of Homeland Security. Our country is facing a range of 
threats that we must address--from port and airport security to cyber 
terrorism. We need funding for a new organizational structure to reduce 
these risks.
  I also would like to engage in a colloquy with the ranking member of 
the Committee on Appropriations, the Senior Senator from Alaska, 
regarding the Coast Guard. The men and women of our Coast Guard make 
significant contributions to our nation each and every day, and they 
deserve our support and admiration.
  Last week, our colleague from Alaska addressed an important section 
in this legislation, Section 888, which governs the Coast Guard's role 
in the new Department of Homeland Security. His statement clearly 
established that it is the intent of this provision that the Coast 
Guard's non-homeland security missions and capabilities must be 
maintained without significant reduction when the Service transfers to 
the new Department.
  As the chairman of the Transportation Appropriations Subcommittee and 
as a Senator from a coastal state, I emphatically agree with my Alaska 
colleague's remarks about the intent and effect of Section 888. I also 
would like to ask him some questions about the Coast Guard and its role 
in the Homeland Security Department.
  Does my colleague from Alaska agree that the United States Coast 
Guard is integral to the security of this country, and that the Coast 
Guard provides a wide range of services to our nation? Does he also 
recognize that some of these services are related to homeland security 
while others are not? For instance, the Coast Guard provides vital 
services in the areas of marine safety, search and rescue, aids to 
navigation, fisheries enforcement, marine environmental protection, and 
ice operations. While these traditional missions do not directly 
contribute to national security, they do ensure the safety of our 
citizens and our environment.
  Mr. STEVENS. I firmly agree with my colleague from Washington about 
both the Coast Guard's role in securing our nation and the importance 
of its non-homeland security missions and capabilities.
  Mrs. MURRAY. Madam President, does the Senator from Alaska believe 
that it is imperative that these essential non-homeland security 
missions be maintained, and that the language in the bill clearly 
identifies the need to protect these critical services?
  Mr. STEVENS. I strongly agree with this imperative and with my 
colleague's interpretation of Section 888. Indeed, Section 888 mandates 
this protection.
  Mrs. MURRAY. Madam President, as the Senator from Alaska has 
previously indicated, the essential non-homeland security missions are 
to be protected pursuant to Section 888. It is also my understanding 
that the Coast Guard organizational structure shall be maintained. To 
ensure that we achieve our objectives, the Inspector General of the 
Department shall conduct an annual review to assess the Coast Guard 
performance of all its missions, with a particular emphasis on 
examining the non-homeland security missions. Is this the understanding 
of the Senator from Alaska?
  Mr. STEVENS. I share my colleague's understandings on these matters.
  Mrs. MURRAY. Madam President, does the Senator from Alaska agree that 
any significant changes to the authorities, functions, missions and 
capabilities of the Coast Guard can be implemented only if they are 
specified in subsequent legislation? And to that end, does he believe 
the language contained in the bill will serve to protect the non-
homeland security missions of the Coast Guard while moving the 
organization into an important homeland security role?
  Mr. STEVENS. I do agree. Section 888 is a clear statement that 
Congress will play a major role in deciding whether there would be any 
significant changes to the Coast Guard in these areas. The language 
also preserves the Service's non-homeland security missions while 
permitting it to perform important homeland security missions.
  Mrs. MURRAY. As the ranking member of the Appropriations Committee, 
the Senator from Alaska is aware that, as part of the fiscal year 
Transportation Appropriations bill reported unanimously in July, the 
Committee mandated that the Coast Guard submit quarterly mission hour 
reports detailing precisely how the Coast Guard has allocated its human 
and capital resources by mission for the preceding quarter.
  The Committee also granted the Commandant unprecedented budget 
flexibility with the dramatically increased funds provided above the 
fiscal year 2002 level to address simultaneously his homeland security 
needs while ensuring that his other critical missions return to their 
pre-September 11, 2001 levels.
  Finally, the Committee required the Commandant to submit a detailed 
plan as part of his fiscal year 2004 budget request to show us 
precisely how he would maintain such mission balance. I am sure that 
the Senator from Alaska agrees with me that, notwithstanding the fact 
that the fiscal year 2003 Transportation Appropriations bill has been 
entangled in the larger delay in the Appropriations process, the 
bipartisan leadership of the Appropriations Committee expects the 
Commandant to move forward with the submission of these reports.
  Mr. STEVENS. Yes, I concur with the Senator that the Committee should 
begin receiving these reports without delay so that we can monitor the 
Coast Guard's progress in complying with not only the Appropriations 
Committee's directives but with the requirements articulated under 
Section 888 of the Homeland Security Act.
  Mrs. MURRAY. It is with great disappointment that I have to tell the 
Senator from Alaska that I am greatly concerned by some preliminary 
indications from the Department of Transportation Inspector General, 
IG, that the Coast Guard may not have fulfilled its statutory 
obligations to fully fund mandated improvements to its Search and 
Rescue Program in fiscal year 2002.

  As part of the Department of Transportation and Related Agencies 
Appropriations Act, 2002, the Committee mandated that not less than 
$14,541,000 be used solely to address the many deficiencies that the IG 
found with the Coast Guard's readiness in the area of Search and 
Rescue. We also mandated that the Inspector General monitor the Coast 
Guard's compliance with this directive.
  While the Inspector General's office has not yet finalized its 
report, I am greatly concerned by preliminary indications that the 
Coast Guard did not, I repeat ``not fulfill the requirement in the law. 
This is precisely the kind of concern that makes it essential that we 
continue to monitor the Coast Guard's compliance with Appropriations 
Committee directives as well as

[[Page S11409]]

with Section 888 of the Homeland Security Act. Again, I commend your 
leadership in this area and look forward to working with you and 
Admiral Collins, the Commandant, on these issues in the future.
  I also want to thank the Chairman of the Governmental Affairs 
Committee again for his foresight and leadership in the efforts to 
create the Department of Homeland Security.
  Mr. SHELBY. Madam President, as the Ranking Member of the 
Transportation Appropriations Subcommittee, I strongly agree with the 
remarks made by my distinguished colleague from Alaska last week 
regarding the Coast Guard and its treatment in the Homeland Security 
legislation. I commend his leadership to preserve the traditional role 
of the Coast Guard as it becomes an agency of the Department of 
Homeland Security.
  The unique strength of the Coast Guard in its multi-mission 
operational capability--the ability to perform a variety of missions 
for the nation. It is one of several agencies to be subsumed into the 
new Department that has both on-homeland security and homeland security 
missions. It is critical to maintain all of the Coast Guard's missions 
and capabilities instead of allowing one mission area to eclipse any 
other. Section 888 takes a significant step forward in preventing that 
from happening by preventing assets, personnel, and budget resources 
from being diverted away from the Coast Guard's traditional missions, 
including rescuing mariners in distress.
  Madam President, I share the concerns expressed by the Senator from 
Alaska about the utmost importance of maintaining the Coast Guard's 
non-homeland security missions and capabilities. When I became Chairman 
of the Subcommittee in the next Congress, I shall look forward to 
working closely with him as the Full Appropriations Committee Chairman 
to ensure that Section 888 is implemented as Congress intends.
  Ms. COLLINS. I would like to thank the Senior Senator from Alaska for 
the leadership he has shown in helping to preserve the traditional 
functions of the Coast Guard after it becomes part of the new 
Department of Homeland Security. Maine and Alaska share a common 
interest in preserving the Coast Guard's traditional functions, 
including its search and rescue mission, which are so critical to our 
fishing communities.
  The Senior Senator from Alaska and I teamed up in the Governmental 
Affairs Committee to ensure that, when we transfer the Coast Guard to 
the Department of Homeland Security, we do not leave its traditional 
missions behind. Our language ensured that the authorities, functions, 
assets, and personal of the Department would be maintained intact and 
without reduction after its transfer to the new Department except as 
specified in subsequent Acts.

  I am pleased that the fundamental elements and purposes of our Coast 
Guard amendment are included in the final compromise homeland security 
bill. Section 888 of the final compromise measure is intended to 
preserve the traditional functions of the Coast Guard such as marine 
safety, search and rescue, aids to navigation, living marine resources, 
and ice operations. The Coast Guard will also be a separate and 
distinct entity in the new Department, and the Commandant of the Coast 
Guard will report directly to the Secretary of Homeland Security, thus 
preventing a demotion from the Commandant's current status in the 
Department of Transportation.
  There is, however, a question that I would like to address to my 
friend from Alaska. It is my understanding that Section 888 of the 
final compromise bill is intended to prohibit changes in the Coast 
Guard's personnel, assets, or authorities that would adversely impact 
the Service's capability to perform its non-homeland security 
functions. Is that also the Senator's understanding of this provision?
  Mr. STEVENS. Yes, that is my understanding also.
  Ms. SNOWE. I would like to enter into a colloquy with several of my 
colleagues from coastal States regarding Section 888 of the final 
version of the Homeland Security Act of 2002. The provisions of Section 
888 were drafted to preserve the traditional roles and missions of the 
Coast Guard and ensure they are not altered or diminished.
  Since September 11, 2001, the Coast Guard has taken on additional 
homeland security responsibilities resulting in its largest peacetime 
port security operation since World War II. While our new reality 
requires the Coast Guard to maintain a robust homeland security 
posture, these new priorities must not diminish the Coast Guard's focus 
on its other traditional missions such as marine safety, search and 
rescue, aids to navigation, fisheries law enforcement, and marine 
environmental protection.
  As a Senator from a coastal State, and as the ranking member on the 
Oceans, Atmosphere, and Fisheries Subcommittee of the Senate Commerce 
Committee, I can attest that all these missions are critically 
important and that the American people rely on the Coast Guard to 
perform them each and every day.
  The language in Section 888, which I developed with Senators Stevens 
and Collins, strikes the proper balance and ensures the Coast Guard's 
non-homeland security missions will not be compromised or decreased in 
any substantial or significant way by the transfer to the new 
Department of Homeland Security.
  First and foremost, it ensures that the Coast Guard will remain in 
distinct entity and continue in its role as one of the five Armed 
Services. The Coast Guard plays a unique role in our government, in 
which it serves as both an armed service as well as a law enforcement 
agency, and this must not be changed or altered.
  This language in Section 888 maintains the primacy of the Coast 
Guard's diverse missions by establishing the Coast Guard as a distinct 
agency under the Secretary of Homeland Security and mandates that the 
Coast Guard Commandant will report directly to the Secretary, rather 
than to or through a Deputy Secretary.
  Additionally, this section prevents the Secretary of this new 
Department from making substantial or significant changes to the Coast 
Guard's non-homeland security missions or alter its capabilities to 
carry out these missions, except as specified in subsequent Acts. It 
also prohibits the new department from transferring any Coast Guard 
missions, functions, or assets to another agency in the new Department 
except for personnel details and assignments that do not reduce the 
Service's capability to perform its non-homeland security missions.
  This section also requires the Inspector General of the new 
Department to review and assess annually the Coast Guard's performance 
of its non-homeland security missions and to report the findings to the 
  I also am pleased to see the inclusion of my amendment requiring the 
new Homeland Secretary, in consultation with the Commandant, to report 
to Congress within 90 days of enactment of this Act on the benefits of 
accelerating the Coast Guard's Deepwater procurement time line from 20 
years to 10 years. The Deepwater project, which will recapitalize all 
of the Coast Guard assets operating 50 or more miles from our coasts, 
is already underway. However, the Coast Guard must wait up to 20 years, 
in some instances, to acquire already existing technology. I believe 
that we must accelerate the Deepwater acquisition project and acquire 
these much-needed assets for the Coast Guard now, not 20 years down the 
  Madam President, Section 888 is a strong statement by the Congress 
that the Coast Guard is an essential component of the new Department 
and that its non-homeland security missions and capabilities must be 
maintained due to their overriding importance, not only to coastal 
States such as Maine, but also to the entire nation.
  Mr. LIEBERMAN. Madam President, as manager of the legislation to 
create a Department of Homeland Security, I want to share with the 
Senate my views on the meaning and intent of several key provisions in 
H.R. 5005, the final homeland security legislation approved by the 
Senate on November 19, 2002. These provisions have been through several 
iterations and they have been debated extensively.
  H.R. 5005 is the result of over a year of deliberations begun last 
October when I introduced legislation (S. 1534) with Senator Specter to 
create a Department of Homeland Security. That legislation was 
subsequently combined

[[Page S11410]]

with legislation by Senator Graham (to create a White House Office for 
Combating Terrorism) and became S. 2452, which was reported out of the 
Committee on Governmental Affairs on May 22, 2002.
  Before the Senate had a chance to consider that bill, however, the 
President announced his support for a Department of Homeland Security. 
The Administration's bill, first submitted to Congress on June 18, 
2002, encompassed almost all of S. 2452's organizational elements 
regarding the Department. The Governmental Affairs Committee held 
hearings to consider the administration's proposals, and, I prepared an 
amendment to S. 2452 that was considered, and adopted, at a July 24-25 
business meeting of the Committee. That expanded version of S. 2452 
went a considerable way to incorporate the administration's proposals.
  In late July, the House of Representatives passed its version of the 
Homeland Security bill, H.R. 5005. This House bill became the base bill 
for floor consideration in the Senate, and the amended version of S. 
2452 was offered on the Senate floor as SA 4471 to H.R. 5005.
  The following statement will discuss various provisions in H.R. 5005 
and, where appropriate, their relationship to similar provisions in SA 
4471. It is intended to supplement a statement and other material I 
submitted for the Record on September 4, 2002, (S8159-S8180) which 
interpreted key provisions in SA 4471 (also referred to as the 
Committee bill).


  Title II, Subtitle A, Section 201 of H.R. 5005, establishes a 
Directorate for Information Analysis and Infrastructure Protection. 
This is a critical provision that goes to the heart of the weaknesses 
that have been exposed in our nation's homeland defenses since 
September 11, 2001--that is, the lack of information sharing related to 
terrorist activities between intelligence, law enforcement, and other 
agencies. This directorate stems from the President's legislative 
submission in June, which included a proposal to create an information 
analysis and infrastructure protection directorate in the Department. 
However, the President's concept has been altered and expanded in 
response to testimony before the GAC and input from key Senators. The 
version in H.R. 5005, while not exactly what the GAC recommended, 
represents a substantial improvement over the President's June 18th, 
2002 proposal. If fully implemented, and if the new department and the 
various agencies responsible for gathering and providing intelligence 
properly interpret its provisions, it will improve our capacity to fuse 
that intelligence in order to prevent terrorist attacks before they 
  S. 2452, as originally reported on May 22, 2002, and based largely on 
recommendations by the bi-partisan Hart-Rudman Commission, included 
directorates for critical infrastructure, emergency preparedness, and 
border security. The President's June 18th proposal added a fourth 
directorate for ``information analysis and infrastructure protection.''
  SA 4471 was developed after examining the President's proposal and 
hearing from expert witnesses on the critical need for a national level 
focal point for the analysis of all information available to the United 
States to combat terrorism. On June 26 and 27, the GAC held hearings on 
how to shape the intelligence functions of the proposed Department of 
Homeland Security--to determine how, in light of the failure of our 
government to bring all of the information available to various 
agencies together prior to September 11, 2001, the government should 
receive information from the field, both foreign and domestic, and 
convert it, through analysis, into actionable information that better 
protects our security.
  The GAC's hearings focused specifically on the relationship between 
the Department of Homeland Security and the Intelligence Community. The 
hearings featured testimony from some of our country's most noted 
experts in intelligence issues, including Senators Bob Graham and 
Richard Shelby, the chairman and ranking member of the Senate 
Intelligence Committee. Other witnesses included Lt. Gen. Patrick M. 
Hughes, former director of the Defense Intelligence Agency; Jeffrey 
Smith, former General Counsel of the Central Intelligence Agency; Lt. 
Gen. William Odom, former Director of the National Security Agency; 
Chief William B. Berger, President of the International Association of 
Chiefs of Police; and Ashton B. Carter, former Assistant Secretary of 
Defense for International Security Policy. Finally, CIA Director George 
Tenet and FBI Director Robert Mueller also testified.

  Senator Graham's written testimony stated that the Intelligence 
Committee's hearings thus far have uncovered several factors that 
contributed to the failures of Sept 11--one of which is ``the absence 
of a single set of eyes to analyze all the bits and pieces of relevant 
intelligence information, including open source material.'' Senator 
Shelby's written testimony stated that ``most Americans would probably 
be surprised to know that even nine months after the terrorist attacks, 
there is today no federal official, not a single one, to whom the 
President can turn to ask the simple question, what do we know about 
current terrorist threats against our homeland? No one person or entity 
has meaningful access to all such information the government possesses. 
No one really knows what we know, and no one is even in a position to 
go to find out.'' General Patrick Hughes, former director of the 
Defense Intelligence Agency, echoed these points. His testimony stated 
that, ``in our intelligence community, we currently have an inadequate 
capability to process, analyze, prepare in contextual and technical 
forms that make sense and deliver cogent intelligence to users as soon 
as possible so that the time dependent operational demands for 
intelligence are met.''
  These hearings made it clear that: (1) there is currently no place in 
our government where all intelligence available to the government is 
brought together to be analyzed, (2) the Department of Homeland 
Security requires an all-source intelligence analysis capability in 
order to effectively achieve its mission of preventing, deterring, and 
protecting against terrorist attacks, (3) the intelligence function 
should be a smart, aggressive customer of the intelligence community, 
(4) the intelligence function must have a seat at the table when our 
nation's intelligence collection priorities are determined, (5) the 
Department is already a significant collector of intelligence-related 
information, through such agencies such as the Customs Service and the 
Coast Guard being transferred into the Department, and (6) the 
Department must have sufficient access to information that is collected 
by intelligence, law enforcement, and other agencies. This final point 
was underscored by Senator Shelby, who testified that the relatively 
limited ``access to information'' provisions in the President's 
proposal were unacceptable, and that it would be a mistake if they were 
  The President's proposal was to create an ``information analysis and 
critical infrastructure protection division''--whose most important 
role, as CIA Director Tenet testified at the GAC hearing on June 27, 
2002, would be ``to translate assessments about evolving terrorist 
targeting strategies, training, and doctrine overseas into a system of 
protection for the infrastructure of the United States.'' Its purpose 
would be to focus the intelligence function on detecting and mitigating 
against threats to critical infrastructure rather than the entire range 
of potential threats. Consequently, the intelligence analysis function 
in the Department of Homeland Security would not be designed to uncover 
terrorist plots or prevent acts of terrorism before they occurred. The 
Governmental Affairs Committee rejected this more limited approach and 
subsequently approved a more robust intelligence directorate, along 
with a separate directorate for critical infrastructure protection, 
which were incorporated in SA 4471. Some of these improvements are now 
incorporated in H.R. 5005.
  Most importantly, like SA 4471, H.R. 5005 makes it clear that the 
purpose of the information analysis function in the Department goes 
beyond critical infrastructure protection to encompass disseminating 
intelligence in order to deter, prevent, and respond to all terrorist 
threats. Section 201(d) of H.R. 5005, which describes responsibilities 
of the Under Secretary for Information

[[Page S11411]]

Analysis and Infrastructure Protection, at paragraph (1), states: ``to 
access, receive, and analyze law enforcement, intelligence information, 
and other information from agencies from the Federal Government, State 
and local government agencies), and private sector entities, and to 
integrate such information in order to--(A) identify and assess the 
nature and scope of terrorist threats to the homeland; (B) detect and 
identify threats of terrorism against the United States; and (C) 
understand such threats in light of actual and potential 
vulnerabilities of the homeland.'' Clause (B) especially establishes 
that the information analysis function must be designed in order to 
``detect and identify'' threats of terrorism.
  In addition, Section 201(d)(9) states that the responsibilities of 
the Under Secretary (for information analysis and infrastructure 
protection) shall include the following: ``to disseminate, as 
appropriate, information analyzed by the Department within the 
Department, to other agencies of the Federal Government with 
responsibilities relating to homeland security, and to agencies of 
State and local governments and private sector entities with such 
responsibilities in order to assist in the deterrence, prevention, 
preemption of, or response to, terrorist attacks against the United 
States.'' Again, it is important that the new information analysis 
division focus on doing everything within its power to deter, prevent 
and preempt, acts of terrorism, while also ensuring that our nation is 
adequately prepared to respond.
  As noted earlier, the President's June 18th proposal would have 
established a more limited function primarily designed to assess 
threats and vulnerabilities to our critical infrastructure. This is an 
important task and will clearly be a major focus of the Department of 
Homeland Security, but the Department's information analysis role will 
now encompass all terrorist threats, not just those to critical 
infrastructure. Many potential terrorist attacks--for example a bomb in 
a shopping mall and attacks using weapons of mass destruction--are not 
directed at critical infrastructure, but at producing mass casualties. 
Thus, the intelligence analysis function in the Department can and must 
focus on the full range of threats that we face. And it must have the 
capacity to access and properly analyze all of the information about 
terrorist attacks that our government possesses.
  Secondly, though it falls short of the Committee's recommendation, 
the final legislation does establish dedicated leadership for both the 
information analysis and infrastructure protection functions. SA 4471 
established separate, Senate confirmed Under Secretaries for 
``intelligence analysis'' and ``critical infrastructure protection.'' 
This was to ensure that focused leadership--with sufficient clout--was 
provided for each of these complex, and major challenges facing our 
government. With 85 percent of our critical infrastructure owned by the 
private sector, it is clear that full time leadership will be required 
to ensure that adequate protective measures are identified and put in 
place. Similarly, the tremendous challenge of overcoming barriers to 
information sharing within the intelligence community and establishing 
a robust intelligence analysis division will likely occupy a 
significant amount of time of the Secretary and Under Secretary.

  H.R. 5005 takes a somewhat different approach: like the President's 
June 18th proposal, it establishes a single Under Secretary with 
overall responsibility for both information analysis and infrastructure 
protection. However, in Title II, Section 201, (b)(1) and (b)(2) it 
also creates two Assistant Secretaries to lead information analysis and 
infrastructure protection, respectively. Earlier, Title I, Section 103 
of the legislation establishes several officers who shall be appointed 
by the President ``with the advice and consent of the Senate,'' 
including not more than 12 Assistant Secretaries (Sec. 103 (a)(8)). The 
Assistant Secretaries for information analysis and infrastructure 
protection will clearly occupy two of the most critical positions in 
our government: consequently, Congress' expectation is they will be 
among the 12 Assistant Secretaries who will be appointed by the 
President with the advice and consent of the Senate.
  Third, responding to the testimony of Senator Shelby and others, the 
SA 4471 provided broad, routine access to information for the Secretary 
of Homeland Security. The assumption behind the Committee's approach 
was that, unless the President determined otherwise, all information 
about terrorist threats, including so-called ``unevaluated 
intelligence,'' possessed by intelligence agencies would be routinely 
shared by intelligence agencies and other agencies with the Department 
of Homeland Security. In contrast, the President's proposal would 
curtail the Secretary's access to unanalyzed information. The Secretary 
would have routine access to reports, assessments and analytical 
information. But, except for vulnerabilities to critical 
infrastructure, the Secretary would receive access to unanalyzed 
information only as the President may further provide.
  H.R. 5005 has wisely moved towards SA 4471. In Section 202 (a), H.R. 
5005 states that, ``except as otherwise directed by the President, the 
Secretary shall have such access as the Secretary considers necessary 
to all information, including reports, assessments, analyses, and 
unevaluated intelligence relating to threats of terrorism against the 
United States and to other areas of responsibility assigned by the 
Secretary, and to all information concerning infrastructure or other 
vulnerabilities of the United States to terrorism, whether or not such 
information has been analyzed, that may be collected, possessed, or 
prepared by any agency of the Federal Government.'' This is crucial 
because the Secretary must have access to the information he or she 
deems necessary to protect the American people, and cannot simply rely 
on agencies that have historically been reluctant to share information 
to determine what the Secretary should have.
  In Section 202(b)(1) the legislation provides that the Secretary may 
enter into cooperative agreements with agencies to provide access to 
such information. At the same time, if no request has been made, or no 
agreement has been entered into, agencies are still required to provide 
certain information that is specified in the legislation. This 
includes, at Section 202(b)(2) (A) all reports (including information 
reports containing intelligence which has not been fully evaluated), 
assessments and analytical information relating to threats of terrorism 
against the United States and to other areas of responsibility assigned 
by the Secretary; (B) all information concerning the vulnerability of 
the infrastructure of the United States, or other vulnerabilities of 
the United States, to terrorism, whether or not such information has 
been analyzed; (C) all other information relating to significant and 
credible threats of terrorism, whether or not such information has been 
analyzed; and (D) such other information or material as the President 
may direct.
  These provisions require agencies to provide significant amounts of 
information to the Secretary, even in the absence of a cooperative 
agreement. With respect to the information required in Section 
202(b)(2)(C); in many cases, it may be impossible for agencies to know 
if certain information is related to ``significant and credible 
threats'' of terrorism precisely because that can only be determined 
once the information is fused with information from others. 
Consequently, to meet the statutory requirement, agencies should 
clearly endeavor to collect requested information, even if it is not 
already available, and they should err on the side of providing more, 
rather than less, information that is already on hand to the 
Department's analysts. This is clearly the best way to help ensure that 
the Department can effectively carry out its mandate to prevent, deter, 
and preempt terrorist attacks.
  Finally, like SA 4471, H.R. 5005 makes the Department responsible for 
working with the Director of Central Intelligence to protect sources 
and methods and with the Attorney General to protect sensitive law 
enforcement information (Section 201(d)(12)). Also, as the Committee 
recommended, the substitute formally includes the elements of the 
Department concerned with analysis of foreign intelligence in the 
``intelligence community'' (Section 201(h)) while also empowering the 
Secretary to consult with the Director of

[[Page S11412]]

Central Intelligence and other agencies on our nation's intelligence 
gathering priorities (Section 201(d)(10)). These provisions will ensure 
that the Department becomes a full partner with the Central 
Intelligence Agency and other agencies in our intelligence community, 
and that is has a crucial seat at the table in all proceedings where 
intelligence-gathering priorities are established.
  Though H.R. 5005 is not exactly what the Governmental Affairs 
Committee recommended in SA 4471, it does contain key aspects of the 
Committee's approach and establishes a single point in our government 
with the responsibility for receiving and assessing all information 
about terrorist threats to our homeland. Thus, it does represent a very 
significant improvement over the Administration's proposal. As a 
result, the information analysis and infrastructure protection function 
in the Department, assuming it is properly implemented, will greatly 
improve our nation's overall capacity to prevent, deter, protect 
against, and respond to terrorist threats against our homeland.

                         Science and Technology

  The Department will have profound scientific and technological needs, 
and both the immediate and long-term success of its mission will 
require the implementation of a broadly-coordinated, tightly-focused, 
and sustained effort to invest in critical areas of research, 
accelerate technology development, and expedite the transition and 
deployment of such technologies into effective use. H.R. 5005 attempts 
to meet this objective by creating a strong, coherent, and well-funded 
Directorate of Science and Technology. The Directorate established in 
this legislation follows directly from the model embodied in the 
homeland security bill passed by the Senate Governmental Affairs 
Committee, SA 4471, and explicated in the Chairman's Statement on 
September 4, 2002 (Congressional Record, pages S8162-S8164). In keeping 
with that model, the Directorate will be headed by a Senate-confirmed 
Under Secretary for Science and Technology with expansive 
responsibilities, as outlined in Section 302, for directing and 
managing homeland security research, development, demonstration, 
testing, and evaluation (RDDT&E) activities; coordinating the federal 
government's civilian efforts, as well as developing a national policy 
and strategic plan, for meeting homeland security R&D needs; advising 
the Secretary and supporting the Department's efforts to analyze risks 
and threats; ensuring the rapid transfer and deployment of technologies 
capable of advancing homeland security objectives; and conducting 
research on countermeasures for biological and chemical threats.

       Research, Development, Demonstration, Testing & Evaluation

  With respect to his RDDT&E responsibilities, the Under Secretary will 
act through an array of mechanisms and authorities established in H.R. 
5005. The primary driver of innovation within the Directorate will be a 
Homeland Security Advanced Research Projects Agency (HSARPA), which is 
conceived to be similar in purpose and organization to the highly 
successful Defense Advanced Research Projects Agency (DARPA) within the 
Department of Defense (DOD). Over the past five decades, DARPA has been 
recognized as one of the most productive engines of technological 
innovation in the federal government. Its success has been grounded in 
its ability to recruit outstanding scientific and technical talent, 
promote creativity and adaptability under a lean, flexible 
organizational structure, and entice collaboration from other R&D 
entities by leveraging an independent source of funds. Because the 
HSARPA created in H.R. 5005 is purposefully patterned after the nearly 
identical Security Advanced Research Projects Agency (SARPA) contained 
in SA 4471, the legislative intent concerning the missions, roles, 
Acceleration Fund, and structure of that organization (see Chairman's 
Statement on September 4, 2002, Congressional Record, pages S8162-8163) 
are, of course, straightforwardly applicable to HSARPA.
  In order to enable HSARPA to achieve parallel success to DARPA, 
Section 307 of H.R. 5005 provides HSARPA with a $500 million 
Acceleration Fund to support key homeland security R&D both within and 
outside of the federal government, leverage collaboration from R&D 
entities external to the Department, and accelerate the development, 
prototyping, and deployment of homeland security technologies. The 
Secretary is likewise provided with DARPA's flexible authority to hire 
and manage top-flight personnel. Although SA 4471 placed limits on this 
authority by setting a ceiling of 100 personnel who may be hired 
pursuant to this authority and instituting a 7-year sunset provision 
[SA 4471, Section 135(c)(3)(C)], those limits have been eliminated in 
H.R. 5005 to allow the Secretary greater discretion in exercising such 
authority commensurate with need [Section 307(b)(6)]. In a later 
section, Section 831, H.R. 5005 also confers the Secretary with another 
important authority currently available to the DOD--the ability to 
engage in ``other transactions'' for both research and prototype 
projects. This flexible contracting authority for such projects has 
been integral to DARPA's success, and HSARPA will therefore have the 
same authority. While the legislation vests this authority directly in 
the Secretary, it is clearly and specifically contemplated that such 
authority will be delegated appropriately to other officials within the 
Department, particularly the Under Secretary for Science and Technology 
and the Director of HSARPA, for use in connection with R&D and 
prototyping activities under their direction or management, including 
extramural RDDT&E projects and projects supported by the Acceleration 
Fund. Nothing in this legislation should be construed as requiring or 
encouraging HSARPA to adopt or replicate any specific programs within 
DARPA, such as the Total Information Awareness Program, or as 
conferring HSARPA with any additional authority to overcome privacy 
laws when developing technologies for information-collection.
  Separate provisions for the Department's other extramural and 
intramural RDDT&E activities are set forth in Section 308. These 
provisions are not intended to supercede the specific provisions 
established for HSARPA under Section 307, and should not be in any way 
limiting on HSARPA. Regarding the university-based center or centers 
for homeland security described in Section 308(b)(2), legislative 
intent regarding the need for flexible application of this provision in 
order to avoid unfairly favoring one or more particular institutions 
was clarified in the November floor statements of the Republican 
manager of the final bill, Senator Phil Gramm. It should therefore be 
emphasized that the criteria listed under Section 308(b)(2)(B) should 
not be considered absolute or dispositive in nature, but rather, as 
factors that should be considered in the context of national homeland 
security needs and the relative strengths of candidate institutions in 
meeting those needs. Consistent with this intent, Section 308(b)(2)(C) 
specifically provides the Secretary and the Under Secretary with full 
``discretion'' in determining whether, how, and when to implement these 
provisions. Consideration of additional relevant criteria to supplement 
(and, within their discretion, to supercede) those delineated under 
Section 308(b)(2)(B) is specifically contemplated in Section 
308(b)(2)(C). This subsection anticipates as the Secretary and Under 
Secretary exercise their discretion that they actively engage in a 
comprehensive, dispassionate, and competitive review of available 
institutions to determine the optimal selection for serving national 
interests. It is contemplated that consortia of universities capable of 
meeting particular areas of required expertise would be eligible to 
serve as a university center or centers; therefore, there is no 
restriction on such consortia being considered under Section 308(b)(2). 
To assure full oversight of the fairness of the selection process, the 
Secretary is required to report to Congress under Section 308(b)(2)(C) 
on the full details of the selection and implementation of the 
university centers.
  Regarding the headquarters laboratory described in Sections 
308(c)(2)-(c)(4), it deserves reiterating that the establishment of 
such a headquarters laboratory is not mandatory under the legislation. 
The Secretary and the Under Secretary should use their discretion in 
determining whether the designation of such a laboratory is necessary 
and would better assist the Directorate in fulfilling its functions. It

[[Page S11413]]

is the intent of H.R. 5005 that the Directorate coordinate and draw 
broadly upon the full range of S&T resources and expertise available in 
the federal government rather than creating new, duplicative 
stovepipes. Accordingly, the risks attaching to the latter should be 
weighed carefully against the potential benefits of establishing a 
single headquarters laboratory. As an alternative, the Secretary could 
certainly opt to select a group of institutions and laboratory elements 
with expertise in a variety of fields to fill the pertinent need.
  Consequent to the principle of affording the Department with rapid, 
non- bureaucratic, expansive, and flexible access to existing federal 
S&T capabilities, the legislation in Section 309 provides the Secretary 
with authority to utilize any of the Department of Energy (DOE) 
laboratories and sites through a variety of mechanisms, most notably, 
joint sponsorship agreements, and in Section 309(g), establishes an 
Office for National Laboratories within the Directorate to create a 
networked laboratory system among the DOE laboratories to support the 
missions of the Department. With regard to Section 309(c), it should be 
clarified that this provision is limited to those programs and 
activities that are transferred from the DOE to the Department under 
this legislation. There is no general requirement or obligation within 
this or any other provision to execute or maintain separate contracts 
for work commissioned by the Department to non-transferred DOE 
laboratories or sites or their operators.

  Interagency Coordination and the National Policy and Strategic Plan

  Notwithstanding the mechanisms described above for enabling the 
Department to engage and support important homeland security R&D, H.R. 
5005 recognizes that the vast bulk of research and development relevant 
to homeland security will continue to occur outside the direct control 
of the Department--in other agencies, in academia, and in the private 
sector. A critical challenge, therefore, will be to ensure that the 
Department has the proper tools and mechanisms to elicit cooperation 
across a wide range of disparate R&D entities, each with their own 
missions and priorities, and to coordinate their collective efforts in 
service to homeland security goals.
  A key coordination mechanism envisioned by the legislation is the 
development of a national policy and strategic plan as described in 
Section 302(2). This national policy and strategic plan integrates the 
concepts of the National Strategy for Combating Terrorism and the 
technology roadmap articulated in SA 4471 [Title III and Section 
135(c)(2)(B)] into a single national blueprint for meeting S&T goals 
and objectives for homeland security. It is intended that a 
comprehensive technology roadmapping exercise (which is commonly 
accepted within the S&T community as a prerequisite to optimal 
organization and coordination of large-scale R&D projects) serve as a 
basis for, and central component of, the larger policy and plan, and 
that the resulting roadmap, policy, and plan provide the framework 
within which all relevant stakeholders, both within and outside of 
government, will coordinate on a common homeland security RDDT&E 
  Effective coordination will also require a forum and body through 
which intensive communication and collaboration may occur. Along these 
lines, the legislation in Section 311 establishes a Homeland Security 
Science and Technology Advisory Committee (``Advisory Committee'') 
consisting of representatives from academia and the private sector to 
both advise the Department and coordinate with communities outside the 
federal government in conducting homeland security R&D. The utility of 
having an external, independent entity to inform and guide intra-
Department and interagency S&T efforts has been previously demonstrated 
by the advisory group assembled by the National Academy of Sciences 
(NAS) in response to the September 11th attacks. This group, which 
published a prominent review of the government's homeland security R&D 
efforts in June 2002 (Making the Nation Safer: The Role of Science and 
Technology in Countering Terrorism), played an important and 
constructive role in identifying and stimulating much needed 
improvements. Section 311 requires a similar entity to be established 
that may, among other things, advise the Department by continuously 
critiquing homeland security S&T efforts in a ``red team'' capacity or 
function, and recommending new approaches for the Department and 
outside agencies. It is specifically anticipated that the National 
Research Council of the NAS, drawing on its extensive network of S&T 
contacts and the expertise it developed in compiling its June 2002 
report, will select appropriate candidates for membership onto the 
Advisory Committee [Section 311(b)(2)], as well as support the Advisory 
Committee's work on an ongoing basis. The Advisory Committee is 
initially authorized for three years, which is a reasonable time period 
to permit the Secretary to meaningfully assess the Advisory Committee's 
efficacy in fulfilling its defined purpose. Should the Secretary 
determine after the initial authorization period that the Advisory 
Committee has provided, or is likely to provide, useful support and 
functionality to the Department, it is anticipated that the Secretary 
will reconstitute or re-establish the Advisory Committee pursuant to 
his authority under Section 871(a).
  With respect to R&D coordination among the federal agencies, H.R. 
5005 does not specifically carry over the Homeland Security Science & 
Technology Council (``S&T Council'') from SA 4471 given that it may be 
unnecessarily redundant to create a new interagency council when 
interagency coordination mechanisms already exist in the form of the 
National Science and Technology Council (NSTC) and its various 
subcommittees. This does not diminish the importance of such an 
interagency body to the homeland security R&D effort. To the contrary, 
an active interagency coordination entity must be considered 
fundamental to enabling the Secretary and the Under Secretary to 
fulfill their core responsibilities of coordinating the federal 
government's civilian homeland security R&D efforts [Section 302(2)] 
and carrying out the Department's S&T agenda through coordination with 
other federal agencies [Section 302(13)]. The omission of the 
interagency S&T Council from H.R. 5005 assumes that the NSTC and the 
Office of Science and Technology Policy (OSTP), working with the 
Secretary and the Under Secretary, will establish and promote the 
strong interagency coordination mandated in Sections 302(2) and 
302(13). Consequently, the Secretary, the Under Secretary, the OSTP, 
and all members of the NSTC are expected to commit to ensuring the 
viability of the NSTC as a productive coordination mechanism. In the 
event that such faith proves to be misplaced, a separate interagency 
group composed of senior R&D representatives from relevant federal 
agencies and officials from the Executive Office of the White House 
should be immediately constituted by the Secretary and the Under 
Secretary based on the authorization for interagency S&T coordination 
contained in Sections 302(2) and 302(13). These provisions also 
constitute a directive to agencies with S&T expertise in areas 
pertinent to homeland security to fully and actively participate in 
such interagency efforts.

   scientific and technical support, risk analysis, and the homeland 
                           security institute

  Another major set of responsibilities assigned to the Under Secretary 
relates to providing specialized advise, expertise, and support to 
other actors within the homeland security organization [Sections 302 
(1), (2), and (3)]. Perhaps the most critical of such responsibilities 
is supporting the Department with respect to assessing, analyzing, and 
mitigating homeland security threats, vulnerabilities, and risks. 
Section 302(2) calls for including coordinated threat identification 
within the national policy and strategic plan, and Section 302(3) 
specifically calls for the assessment and testing of ``homeland 
security vulnerabilities and threats.'' Although primary responsibility 
for coordinating and integrating risk analysis and risk management 
resides with the Secretary and the Under Secretary for Information 
Analysis and Infrastructure Protection, the highly complex and 
technical issues inherent to modern risk analysis methods demand 
substantial scientific and technical expertise. Section 302(3) mandates 
that the Under Secretary for S&T support

[[Page S11414]]

the Under Secretary for Information Analysis and Infrastructure 
Protection in this regard. Therefore, Section 305 addresses the problem 
of obtaining the necessary S&T expertise by giving the Secretary broad 
authority to establish or contract with Federally Funded Research and 
Development Centers (FFRDCs), which could perform functions not only 
related to R&D, but extending to risk, threat, and vulnerability 
analysis. While this authority is discretionary, H.R. 5005 anticipates 
that it will be exercised actively in accordance with need. In fact, so 
compelling was the NAS's recommendation in its June 2002 report to 
create an independent, non-profit institution for critical analysis and 
decision support, that H.R. 5005 includes another provision to trigger 
immediate exercise of the broad FFRDC authority. Specifically, Section 
312 mandates the creation of a Homeland Security Institute 
(``Institute'') focusing expressly on capabilities related to risk 
analysis, scenario-based threat assessments, red teaming, and other 
functions relevant to homeland security. The Institute is initially 
authorized for three years, which is a reasonable time period to permit 
the Secretary to meaningfully assess the Institute's efficacy in 
fulfilling its defined purpose. Should the Secretary determine after 
the initial authorization period that the Institute has provided, or is 
likely to provide, useful support and functionality to the Department, 
it is anticipated that the Secretary will, pursuant to his authority 
under Section 305, renew, reconstitute, or re-establish the Institute 
with appropriately expanded or modified functions to service the 
Department's ongoing and expanding risk assessment mission.

                         technology transition

  The Under Secretary is responsible for ensuring that technologies 
capable of supporting homeland security are quickly tested, evaluated, 
transitioned, and deployed to appropriate users within or outside the 
Department. Section 302(6) explicitly requires the Under Secretary to 
establish a system for transferring such technologies. This system 
should include processes and mechanisms for identifying homeland 
security actors and entities with unmet technological needs; matching 
such entities and needs with available technologies or, if none are 
readily available, assisting in the development, testing, evaluation, 
and deployment of new technologies to meet identified needs; ensuring 
viable technology transition paths for products of homeland security 
R&D, including HSRAPA-derived technologies; aligning internal R&D 
priorities and programs to technological needs inside or outside the 
Department; communicating externally with both technology developers 
and users to promote alignment of extra-Departmental R&D efforts with 
homeland security-related technological needs; providing technology 
developers with information and guidance on interfacing with 
governmental customers of homeland security technologies; and providing 
technical assistance to potential governmental users of homeland 
security technologies. To support the Under Secretary in executing 
these responsibilities, Section 313 establishes a Technology 
Clearinghouse (''Clearinghouse'') to serve as a national point-of-
contact for both technology developers and potential users. The 
Clearinghouse must coordinate with the Technical Support Working Group 
(TSWG), and may fully integrate with the TSWG. In light of the fact 
that the mission of the TSWG dovetails with, and is fully embraced by, 
that of the Directorate, it is contemplated that the Under Secretary 
may assume full or joint management, technical, and/or policy oversight 
of the TSWG.

  testing and evaluation of technologies for internal acquisition and 

  With respect to technologies being considered for internal use 
Department-wide or within one or more of its constituent entities, 
intelligent and well-coordinated testing, evaluation, procurement, and 
deployment will be crucial given that the new Department will have 
extensive technological needs, requirements, and dependencies. Too 
often, government agencies are hampered and distracted from their 
fundamental missions as a result of unstructured, technically 
unsophisticated approaches to technology acquisition and deployment 
that generate interoperability problems downstream. In order to 
effectively carry out the requirement for the Under Secretary to 
comprehensively conduct, direct, integrate, and coordinate the 
demonstrating, testing, and evaluation activities of the Department as 
articulated in Sections 302(4), 302(5), and 302(12), the Secretary and 
the Under Secretary should implement procedures to ensure that new 
technologies being considered for acquisition will be compatible and 
interoperable with other existing or anticipated technologies. New 
technologies should not be permitted to move to acquisition without the 
Under Secretary's sign off on the prior stages in the innovation 
process, particularly the demonstration, testing, and evaluation 
stages. The Under Secretary is understood to occupy the role of the 
Department's chief technology officer, and it is anticipated that he 
will be provided with responsibilities and authorities befitting that 
role. Accordingly, the Secretary shall act through the Under Secretary 
to operationally test and evaluate all major systems targeted for 
potential acquisition by any entity within the Department, and grant 
the Under Secretary authority to approve or reject such systems in his 
discretion. Nothing in this provision is to be construed as proscribing 
other Departmental entities from undertaking testing and evaluation 
activities so long as they do so in coordination with, and subject to 
the final approval of, the Under Secretary. The Under Secretary should 
also coordinate with the Department's Chief Information Officer, the 
Under Secretary for Management, and other federal agencies in promoting 
government-wide compatibility and interoperability of homeland security 
technologies and systems.

  By vesting in the Under Secretary the full and broad authority to 
manage the Department's full spectrum of innovation, from basic 
research [Sections 302(4), 302(5), 302(11), and 302(12)] through 
demonstration, testing, and evaluation [Sections 302(4), 302(5), and 
302(12)] to transition and deployment [Section 302(6)], the Under 
Secretary will have the means and mandate to initiate a powerful, 
systematic approach to innovation that generates new technologies for 
combating terrorism and ensures integrated acquisition and use of such 
technologies. Placing control of all the key innovation stages with the 
Under Secretary is critical to assuring that research, development, 
demonstration, testing, evaluation, and deployment in the Department do 
not become disjointed and fractured so that a coherent innovation 
process can prevail.

    Research on Countermeasures for Biological and Chemical Threats

  True preparation for future biological, chemical, radiological, and 
nuclear attacks will depend upon the development of vaccines and 
medicines to combat the most likely threats. At present, our nation is 
woefully unprepared for this type of attack. In his June 28, 2002 
testimony before the Senate Governmental Affairs Committee, Dr. J. 
Leighton Read discussed the barriers to the development of a national 
medical arsenal to combat terrorism. The federal government has a long 
and successful history in conducting basic biomedical research. The 
National Institutes of Health within the Department of Health and Human 
Services (HHS) have served as an international model for funding and 
conducting human health-related research. However, in facing biological 
and chemical terrorism, we face a new challenge. In addition to 
encouraging basic research and training the next generation of 
scientists, the federal government will have to deliver actual 
pharmaceutical products and will have to deliver them quickly. Unlike 
the traditional pharmaceutical market, companies that choose to develop 
drugs to fight bioterrorist attacks that may never occur will not be 
able to rely on an existing market. Yet producing actual products to 
meet biological and chemical threats will depend upon private sector 
involvement. As a result, the Under Secretary should incorporate the 
goal of engaging the private sector into develop biothreat 
countermeasures into every level of his strategy, and adopt plans and 
policies to enable such private sector participation to occur.
  H.R. 5005 provides tools to accomplish this task. While Section 
302(4) states generally that the Under Secretary's responsibilities do 
not extend

[[Page S11415]]

to human health-related research and development activities, this 
provision should be construed consistent with other specific provisions 
in H.R. 5005 ascribing the Under Secretary a major role in addressing 
biological and chemical threats related to terrorism, a role which will 
require the Under Secretary to conduct specific types of human health-
related research and development activities. Section 302, therefore, 
does not circumscribe the Under Secretary's authority to conduct 
research necessary to implement the major biothreat-related functions 
delineated in Sections 302(2) (requiring the Under Secretary to develop 
a national policy and plan that addresses, among other things, chemical 
and biological terrorist threats, and further requiring the Under 
Secretary to coordinate the Federal Government's civilian efforts to 
identify and develop countermeasures to chemical, biological, 
radiological, nuclear, and other emerging terrorist threats), 302(5) 
(requiring the Under Secretary to direct, fund, and conduct national 
research and development for detecting, preventing, protecting against, 
and responding to terrorist attacks, which perforce include those 
involving biological or chemical agents), 302(8) (requiring the Under 
Secretary to collaborate with the Secretary of Agriculture under the 
Agricultural Bioterrorism Protection Act of 2002), 302(9) (requiring 
the Under Secretary to collaborate with the Secretary of HHS in 
determining biological agents and toxins to be listed as select 
agents), 303(1)(A) (transferring control and management of certain 
chemical and biological national security programs within the 
Department of Energy into the Department of Homeland Security), and 
Sections 303(2) and 1708 (establishing and transferring into the 
Department a National Bio-Weapons Defense Analysis Center).
  The National Bio-Weapons Defense Analysis Center (``Center'') 
established and transferred in H.R. 5005 will, in particular, require 
the Under Secretary to engage in extensive human health-related R&D. 
The Center is intended to lead the Department's research efforts on 
bioterrorism by developing ``countermeasures to potential attacks by 
terrorists using weapons of mass destruction'' (Section 1708). The 
Center will conduct research on bioterrorism, and by definition, this 
should include study of the pathogenesis of bioterrorist agents, the 
immune response to these pathogens, and research on vaccines, drugs, 
and other medical antidotes. Since the Center is placed under the 
direction and management of the Directorate, the Under Secretary is 
conferred with substantial obligations to conduct human health-related 
  While the Secretary clearly has the authority to conduct the type of 
R&D discussed above internally, H.R. 5005 contemplates that the 
civilian human health-related countermeasures research carried out by 
HHS shall remain under the direction of the Secretary of HHS. Sections 
304(a) and (b) mandate that while the Secretary of HHS shall retain 
authority for such research, he shall collaborate with the Secretary of 
Homeland Security in developing between the two Departments a 
coordinated strategy and outcome measurements for these research 
activities. As outlined in H.R. 5005, it is crucial that such research 
reflect the overall national policy and strategic plan developed by the 
Secretary and the Under Secretary under Section 302(2), and that the 
efforts of the two Departments be fully in concert. In the biothreat 
and chemical threat areas, the Secretary should work to ensure the 
resulting policy, plan, and benchmarks mandated under Section 302(2) 
reflect what is most needed and what pharmaceutical products can be 
timely developed against the most likely and dangerous threats to the 
public. Since this will require participation from the private sector, 
the policy and plan, which will include a technology roadmap, must 
necessarily include a strategy for translating basic science results 
into product development within the private pharmaceutical and 
biotechnology sectors.

                  Emergency Preparedness and Response

  The Department will coordinate the federal response to disasters. 
This responsibility will encompass natural and manmade disasters, 
terrorist attacks and all incidents involving weapons of mass 
destruction, and other large-scale emergencies. In addition, the 
Department will assist the Secretaries of Health and Human Services and 
the Department of Agriculture in responding to public health and 
agricultural emergencies. The Directorate for Emergency Preparedness 
and Response was designed to spearhead this effort within the 
  In order to accomplish these tasks the Department will need an 
interdisciplinary, well funded, and well-organized Directorate of 
Emergency Preparedness and Response. The initial design of this 
directorate was established by the Senate Governmental Affairs 
Committee in S. 1534. This original design was refined by the 
Governmental Affairs Committee amendment, SA 4471, and further 
explained by the Chairman's statement on September 4, 2002 
(Congressional Record, pages S8162-S8164). Consistent with this 
original design, H.R. 5005 establishes a Directorate that includes the 
essential federal emergency response agencies and offices.
  The Directorate shall build and direct a comprehensive national 
incident management system and consolidate existing federal emergency 
response plans into a single, coordinated national plan as outlined in 
H.R. 5005, Sections 502(5), 502(6), and 507(b)(1-2). States and 
localities should have access to and information about these systems 
and plans to ensure optimal coordination during an emergency. These 
plans should encompass all affected governmental entities and reflect 
both local and national needs. The consolidated federal response plan, 
outlined in Sections 502(6) and 507(b)(1-2), must interface with state 
and local response plans and should utilize local resources wherever 


  The planning responsibilities of the Under Secretary shall include 
the development of a comprehensive plan and effort for improving 
communication interoperability during emergency response (H.R. 5005, 
Section 502(7)). In developing the communication technology and 
interoperability, the Under Secretary must pay particular attention to 
the development, support and utilization of effective telemedicine 
networks, as well as the application of advanced information technology 
to effective training for and delivery of emergency medical services.


  In order to implement the missions delineated in Section 502, the 
Directorate shall establish and disseminate standards for equipment, 
personnel, training, resources, and the resulting emergency response. 
Standards shall be used as benchmarks for training and acquisition to 
ensure a uniform quality and interoperability during a response. The 
Under Secretary shall use these standards to provide recommendations 
and guidance to state and local governments.

               Public Health and Agricultural Emergencies

  The Secretaries of Health and Human Services and the Department of 
Agriculture shall retain the authority to oversee the federal response 
to public health and agricultural emergencies, respectively. This 
authority includes the authority to declare such emergencies. However, 
these agencies shall fully collaborate with the new Department which 
shall support these agencies in their response, especially with regards 
to chemical, biological, radiological, and nuclear weapons. The 
Department should serve as an active and involved resource during 
bioterrorist and agroterrorist attacks. As outlined in Section 887 of 
H.R. 5005, the Department shall work in conjunction with the Department 
of Health and Human Services, the Federal Bureau of Investigation, and 
other engaged federal agencies to optimize information sharing between 
agencies commencing forthwith, as well as before and after the 
declaration of a public health emergency. This provision was intended 
to ensure that all involved agencies have all the information necessary 
to effectively perform their role in the federal response. See also, 
Section 892.


  In order to help ``ensure the effectiveness of emergency response 
efforts'' as required in Section 502(1) of H.R. 5005, the Directorate 
shall lead federal efforts to train first responders in disaster 
response. The term, first responder, shall include law enforcement,

[[Page S11416]]

fire fighting, emergency medical, health care, and volunteer personnel. 
To be effective, training shall encompass exercises, on-line computer 
simulations, drills, courses, and other interactive learning 
environments. Personnel should be trained in every aspect of emergency 
response, including prevention/preparation, mitigation, active 
response, and recovery efforts. Training should include utilization of 
the Noble Training Center, transferred to the new Department as part of 
the Office of Emergency Preparedness (Section 503(5)) and other 
training sites and campuses within the Federal Emergency Management 
System, as well as full coordination with the National Guard. Finally, 
the Directorate shall improve, and train first responders in use of, 
governmental on-line resources to ensure they have the latest 
information available during a response.

                      Strategic National Stockpile

  Authority to oversee the Strategic National Stockpile shall be 
transferred to the new Department. In H.R. 5005, this transfer of 
authority is described in Sections 502(3)(B), 503(6), and 1705. This 
language clarifies that the existing structure of the Stockpile 
program, as described in Section 121 of the Public Health Security and 
Bioterrorism Preparedness and Response Act of 2002 (Public Law 107-
188), shall remain intact. The Stockpile shall continue to be a multi-
agency effort, with significant roles for the Department of Veterans 
Affairs and the Department of Health and Human Services. In particular, 
the Department should continue to incorporate the recommendations of 
the Centers for Disease Control and Preparedness (CDC) and the Office 
of the Assistant Secretary for Public Health Emergency Preparedness 
(OPHEP), within the Department of Health and Human Services, in 
determining the composition of the stockpile and the parameters for its 
use. The Department shall consult the CDC and OPHEP in deciding which 
medications, vaccines, and medical supplies are most appropriate for 
the Stockpile (Section 1705(a)(1)(C)). The Department shall also 
coordinate with the Secretary of Health and Human Services in 
determining the need to deploy the stockpile, on an incident-by-
incident basis. The Under Secretary should continue to use the 
resources of Department of Veterans' Affairs in procuring and storing 
the contents of the Stockpile (Section 1705(a)(1)(B)). And the Under 
Secretary shall call upon the Department of Defense and the National 
Guard to help transport and secure the contents of the stockpile as 

                  The Office of Emergency Preparedness

  SA 4471 described, in detail, the transfer of the Office of Emergency 
Preparedness (OEP) from the Department of Health and Human Services to 
the Department. The transfer of OEP was retained in H.R. 5005 in 
sections 502(3)(B) and 503(5). Since the Office of Emergency 
Preparedness is not defined in statute, it should be clarified that the 
transfer of OEP shall include the Office and all of its component 
agencies. This includes the National Disaster Medical System, the 
Metropolitan Medical Response System, the Noble Training Center, the 
Special Events Disaster Response program, and all other programs 
directed by OEP. Of course, nothing in the final legislation should be 
construed to mean that the transfer of the OEP programs shall result in 
the transfer of personnel whose primary duties reside outside of OEP.

                  The National Disaster Medical System

  For example, the National Disaster Medical System (NDMS) is an inter- 
agency program. It involves personnel, facilities, and equipment from 
the Department of Health and Human Services, the Department of Veterans 
Affairs, the Department of Defense, and other federal agencies. The 
personnel and assets from these departments that are deployed by NDMS 
during the an emergency response, but whose primary day to day roles 
are central to the missions of agencies outside of the Department, 
shall remain part of their home agencies. This includes members of the 
Disaster Medial Assistance Teams (DMATs), the Disaster Mortuary 
Assistance Teams (DMATs), and the Veterinary Medical Assistance Teams 
(VMATs). The transfer of the NDMS component of OEP shall be restricted 
to the management, organizational, and coordinating personnel, 
functions, and assets.

                The Metropolitan Medical Response System

  Similarly, the transfer of the Metropolitan Medical Response System 
(MMRS) does not include transfer of member hospitals. Rather it shall 
consist of a transfer of the grant programs and related personnel. The 
MMRS grants have been used to improve hospital and first responder 
preparedness in select metropolitan regions across the country. 
Administration of these ongoing grants will become part of the new 
  Although H.R. 5005 transfers the authority of the Secretary of the 
Department of Health and Human Services and the Assistant Secretary for 
Public Health Emergency Preparedness for OEP (Section 503(5)), the 
Under Secretary shall at all times attempt to maximize communication 
and interaction between OEP and its component programs and the 
Department of Health and Human Services, which will be crucial in 
meeting the Directorate's mission requirements. As the preceding 
discussion illustrates, OEP will have to coordinate efforts of 
personnel from several different agencies. But in addition, OEP and its 
programs must remain integrated into the larger national public health 
infrastructure. Particular efforts should be made to coordinate OEP 
programs with the Office of the Assistant Secretary for Public Health 
Emergency Preparedness. This office, within the Department of Health 
and Human Services, is charged with coordinating intra and interagency 
health preparedness efforts. OEP should remain a part of this larger 

          Conduct of Certain Public Health-Related Activities

  Section 505 of H.R. 5005 addresses two critical issues. First, it is 
imperative that the efforts to improve our public health infrastructure 
and their emergency preparedness remain under the control of the 
Secretary for Health and Human Services, although coordinated with the 
Secretary. On June 28, 2002 the Governmental Affairs Committee heard 
testimony from several public health experts. In their testimony, the 
witnesses concurred that in order to be functional during an emergency, 
public health preparedness efforts had to be integrated into the larger 
public health system. This ``dual-use'' improves underlying public 
health efforts while ensuring health providers remain familiar with 
emergency preparedness networks and programs. Their testimony pointed 
out that dual-use was particularly important during a response to a 
biological attack. In this case, the terrorist attack may not be 
immediately apparent and detection may depend upon the ability of 
normal health care systems to detect unusual patterns of illness. H.R. 
5005 also stressed this important theme through Section 505 and 
language in Section 887, which calls for interaction between the 
agencies before and after the declaration of a public health emergency.
  Section 505 stipulates that the Department of Health and Human 
Services shall retain primary authority over efforts to improve State, 
local, and hospital preparedness and response to chemical, biological, 
radiological, and nuclear and other emerging terrorist threats 
``carried out by the Department of Health and Human Services.'' In this 
regard, the Secretary of Health and Human Services shall have authority 
to set priorities and preparedness goals. However, the Secretary of 
Health and Human Services, working through the Assistant Secretary for 
Public Health Emergency Preparedness, must develop a coordinated 
strategy for these activities in collaboration with the Secretary 
(Section 505(a)). In doing so, the Secretary of Health and Human 
Services will also collaborate with the Secretary in establishing 
benchmarks and outcome measures for success. Nothing in Section 505 
should be interpreted as disrupting ongoing preparedness efforts within 
the Department of Health and Human Services. All ongoing emergency 
preparedness grants should continue. Selection criteria and the 
evaluation of grant application shall continue to be determined by the 
Department of Health and Human Services, consistent with Section 505 

                       Human Resources Management

  H.R. 5005 contains two key provisions relating to employees at the 
new Department--section 841, which governs

[[Page S11417]]

the establishment of a human resources management system, and section 
842, which deals with labor-management relations at the Department. 
These provisions have been among the most contentious in debate on this 
  The Administration has consistently sought what it calls 
``flexibility'' in the personnel area, by which it means a carte 
blanche to waive civil service protections and union rights of the 
employees at the Department. Sections 841 and 842 of H.R. 5005 are 
significantly more protective in this regard than the provisions in the 
President's original proposal (i.e., the one released June 18, 2002), 
but these sections remain a major disappointment. A risk remains of 
politicization, arbitrary treatment, and other personnel abuses in the 
federal government, in a way that may damage the merit-based workplace 
federal employees and the American people have come to depend on. I 
hope what I fear does not come to pass, and that this Administration 
and future Administrations will not overstep bounds, overexert 
authority, and thereby undermine the effectiveness of the new 
Department. I have summarized below the protections that sections 841 
and 842 do provide.
  Establishment of Human Resources Management System. Section 841 
authorizes the Secretary, jointly with the Director of the Office of 
Personnel Management (OPM), to prescribe a ``human resources management 
system'' (HRMS) for the Department. The section provides that the HRMS 
may waive certain provisions of the civil service statutes, and 
specifies required procedures by which the system is to be developed, 
negotiated, and adopted.
  When it comes to the creation of a HRMS, the law still requires that 
employees in the new Department will be hired, promoted, disciplined, 
and fired in conformity with all merit system principles and in 
violation of no prohibited personnel practices. If and when existing 
civil service rights and protections come up for consideration in the 
development of a HRMS, the Administration may waive, modify, or 
otherwise affect such rights and protections only to the extent it can 
clearly demonstrate that they clearly conflict with the homeland 
security mission, and that they are not being waived merely in the 
interest of administrative convenience. Fair and independent procedures 
must be maintained for employees with grievances, such as those who 
allege abuse or corruption within the Department. Changes to the system 
must be carefully crafted through negotiation and collaboration with 
employees and their representatives; and, if a disagreement arises, the 
period of at least 30 days that section 841 requires for bargaining and 
mediation between the Administration and the employee representatives 
must be substantial and in good faith, not cosmetic.
  The provisions in section 841 that allow a HRMS to waive statutes are 
precisely drawn, detailing which parts of the United States Code may be 
waived, modified, or otherwise affected and which parts may not. For 
example, the legislation specifically forbids waiver of merit system 
principles or prohibited personnel practices. Furthermore, as to 
provisions referred to in 5 U.S.C. Sec. Sec. 2302(b)(1), (8) and (9), 
the legislation forbids waiver not only of the provisions themselves, 
but also of provisions implementing those protections through 
affirmative action or through any right or remedy. Sections 2302(b)(1), 
(8) and (9) include laws against discrimination, against reprisal for 
whistleblowing, and retaliation for exercising rights. Section 841 thus 
assures that the HRMS will not affect employees' ability to appeal a 
personnel action to the Merit Systems Protection Board, under existing 
law, in a case where the employee alleges a discrimination, 
retaliation, or reprisal covered and referred to by 
Sec. Sec. 2302(b)(1), (8) and (9). Section 841 also requires the HRMS 
to ensure that employees may organize and bargain collectively, subject 
only to exclusion from coverage or limitation on negotiability 
established by 5 U.S.C. chapter 71 or other law.
  Furthermore, the grant of waiver authority under section 841 refers 
explicitly and only to part III of title 5, United States Code. Section 
841 thus grants no authority to waive any provision of law outside of 
part III. This means, for example, that the HRMS may not waive, modify, 
or otherwise affect such government-wide employee rights and 
protections as, for example: (1) the Office of Special Counsel's 
authority to investigate any prohibited personnel practice and seek 
corrective action or disciplinary action from the Merit Systems 
Protection Board (MSPB) (5 U.S.C. Sec. Sec. 1211 et seq.); (2) 
employees' right to seek corrective action from the MSPB in a case of 
reprisal for whistleblowing (5 U.S.C. Sec. Sec. 1221-1222); (3) the 
Ethics in Government Act of 1978 (Pub. L. 95-521, as amended; printed 
as an appendix to 5 U.S.C.); (4) Veterans benefits (including appeal 
rights to MSPB) (38 U.S.C.); and (5) the Fair Labor Standards Act of 
1938 (29 U.S.C. Sec. Sec. 201 et seq.). Likewise, some of the right and 
protections applicable to particular agencies or groups of employees 
being transferred to the Department are set forth in portions of the 
United States Code outside of part III of title 5, or were not enacted 
by Congress as incorporated into the United States Code at all, and 
these rights and protections may not be waived by the HRMS.
  While the waiver authority granted by section 841 is broad, the 
provisions noted above and other provisions that may not be waived 
under section 841 can afford significant protections against 
politicization, arbitrary action, and abuse. The Secretary and the 
Director must be scrupulous in not attempting to waive, modify, or 
otherwise affect any provisions of law that are beyond the express 
waiver authority, because such an attempt would violate section 841.
  Labor-Management Relations. 5 U.S.C. Sec. 7103(b)(1) states that the 
President may issue an executive order excluding any agency from 
coverage under the Federal Sector Labor-Management Relations Statute 
(FSLMRS) if the President determines: that the agency has a primary 
function in intelligence, counterintelligence, investigative, or 
national security work, and that the provisions of the FSLMRS cannot be 
applied consistent with national security. Section 842 of H.R. 5005 
builds on that existing provision by stating that, for the President to 
issue an executive order excluding an agency transferred to the 
Department, not only must the criteria in 5 U.S.C. Sec. 7103(b)(1) be 
satisfied, but also two additional clarifying criteria must be 
satisfied: that the mission and responsibilities of the agency 
materially changed, and that a majority of the employees in the agency 
have as their primary duty intelligence, counterintelligence, or 
investigative work directly related to terrorism investigation.
  That provision would provide employees at the Department some 
appropriate measure of stability in their labor relations, although the 
provision is subject to a subsequent provision of section 842. The 
President can override the earlier provision if he determines that the 
earlier provision would have a substantial adverse impact on the 
Department's ability to protect homeland security, and provides 
Congress a detailed written finding explaining the reasons for the 
determination. The President has to give the Congress 10 days' advance 
notice by submitting the written explanation. At the expiration of the 
ten day period, the President would then have the power to issue an 
executive order under 5 U.S.C. Sec. 7103(b)(1) under the criteria of 
that section only.
  I still fail to understand why any President would need to remove 
collective bargaining rights from federal employees, whose union rights 
are very limited in comparison with the private sector, and who have a 
long history of helping to protect the homeland and continue to do the 
same protective work in the new Department. But if and when this 
President or a future President does move to eliminate collective 
bargaining within a unit of the Department, the President can take this 
step only if it is truly essential to national security and homeland 
security and not merely a convenience to management. This requires that 
the Department's leadership must first make good-faith efforts to work 
cooperatively with the unions before the President can determine that 
union representation is incompatible with national security or homeland 
  And the written explanation that the President is required to provide 
to Congress must of course be thorough and specific. The requirement 
reflects a bipartisan concern that this Administration and future 
Administrations must

[[Page S11418]]

make the case for stripping workers of their right to bargain 
collectively before issuing an Executive Order. The President must 
provide Congress a comprehensive and specific explanation on the 
threshold issue of how and why the right of workers in a particular 
agency or subdivision to collectively bargain would have a substantial 
adverse impact on homeland security.
  Other provisions. Two other provisions of H.R. 5005 relating to human 
resources management warrant comment.
  Section 881 requires that the Secretary, in consultation with the 
Director of OPM, shall review the pay and benefit plans of each agency 
transferred to the Department and, within 90 days, submit a plan to 
Congress for ensuring the elimination of disparities, especially among 
law enforcement personnel. Nothing in section 881 provides for how the 
elements of the plan shall be put into effect, however, so I believe it 
would be desirable for the plan to identify the specific changes to 
law, regulation, and policy that would be needed to eliminate the 
disparities, and make specific recommendations for effecting those 
  Section 1512(e) states that the Secretary, in regulations prescribed 
jointly with the Director of OPM, may adopt the rules, procedures, 
terms and conditions established by statute, rule, or regulation before 
the effective date of the Act in any agency transferred to the 
Department under the Act. This section 1512 contains the Savings 
Provisions for the reorganization effected by the Act, and subsection 
(e) is intended to enable the Secretary to keep a transferred agency 
subject to the same rules, procedures, terms and conditions that 
applied to the agency before the transfer. This provision does not, of 
course, provide authority to the Secretary to take a provision that was 
applicable to one agency before the effective date and apply it to 
another agency or other part of the Department.
  Mr. THOMPSON. Madam President, putting a significant piece of 
legislation like this bill together is a difficult and time-consuming 
task. Many Senators have played important roles in this legislation, 
but the contributions of our staff members have also been of great 
significance. Without the aid of our staff members, little would get 
done in this institution. I would like to take a moment to recognize 
the hard work and dedication of just a few of the staff members who 
contributed significantly to this legislation.
  For the Majority, I want to recognize the contributions of Chairman 
Lieberman's staff, especially his staff director, Joyce Rechtschaffen, 
and Laurie Rubenstein, Mike Alexander, Kiersten Coon, Holly Idelson, 
Kevin Landy, Larry Novey, and Susan Propper. Also, let me acknowledge 
the contributions of staff to the other members of the Governmental 
Affairs Committee and of Sarah Walter of Senator Breaux's staff, David 
Culver of Senator Ben Nelson's staff, and Alex Albert of Senator 
Miller's staff.
  IOn the Republican side, I must single out the work of Rohit Kumar of 
Senator Lott's Leadership staff. He has been the linchpin around whom 
everything got done. We would have no bill without his persistence, 
diligence, and intellect. Mike Solon of Senator Gramm's staff also 
placed a crucial role in developing the Gramm-Miller amendment on which 
much of the final legislation is based. David Morgenstern of Senator 
Chafee's staff was also helpful.
  Finally, let me recognize my own staff on the Governmental Affairs 
Committee, who provided me with outstanding support. The successful 
adoption of this legislation is due to their hard work and constant 
efforts. Almost my entire staff was involved in some way or another 
with this bill. I want to recognize the efforts of Richard Hertling, my 
staff director on the Governmental Affairs Committee, who led the 
effort, and Libby Wood Jarvis, my legislative director. Other members 
of my staff whose assistance I wish to recognize are Ellen Brown, Bill 
Outhier, Mason Alinger, Alison Bean, John Daggett, Johanna Hardy, 
Stephanie Henning, Morgan Muchnick, Jayson Roehl, Jana Sinclair, and 
Elizabeth VanDersarl, along with Allen Lomax, a fellow in my office 
from the General Accounting Office.
  Our staff members toil diligently and well, largely in anonymity. I 
think it appropriate on occasion to recognize their work publicly, so 
that Americans may share the knowledge of the members of this 
institution about how well served they are by our staff members.
  I thank the Presiding Officer for allowing me to take this brief time 
to recognize the efforts of some of the staff members responsible for 
this bill.
  Mr. KENNEDY. Madam President, soon after the vicious attacks of 
September 11, it became clear that Congress needed to act on a 
bipartisan basis to win the war on terrorism and protect the country 
from future attack. Congress quickly approved strong bipartisan 
legislation authorizing the use of force against the terrorists and 
those who harbor them. It also enacted bipartisan legislation to 
provide aid to victims and their families, to improve airport security, 
to give law enforcement and intelligence officials enhanced powers to 
investigate and prevent terrorism, to improve border security, and to 
strengthen our defenses against bioterrorism.
  The September 11 attacks also demonstrated the need to consolidate 
overlapping functions and establish clear and efficient organizational 
structures within the Federal Government. I fully support these goals. 
Reorganization without reform, however, will not work. It is not enough 
to consolidate different agency functions, if the underlying problems 
relating to management, information sharing, and coordination are not 
also addressed. And we do the Nation a disservice if, in the course of 
reorganizing the Government, we betray the ideals that America stands 
for here at home and around the world.
  We know that our Nation faces a very serious threat of terrorism. To 
protect our national security in today's world, we need an immigration 
system that can carefully screen foreign nationals seeking to enter the 
United States and protect our Nation's borders. Our current Immigration 
and Naturalization Service is not up to these challenges. For years, 
INS has been unable to meet its dual responsibility to enforce our 
immigration laws and to provide services to immigrants, refugees, and 
aspiring citizens.
  The Lieberman homeland security bill included bipartisan immigration 
reforms that were carefully designed to correct these problems and 
bring our immigration system into the 21st century. It untangled the 
overlapping and often confusing structure of the INS and replaced it 
with two clear lines of command--one for enforcement and the other for 
services. It also included a strong chief executive officer to ensure 
accountability, a uniform immigration policy, and effective 
coordination between the service and the enforcement functions.
  On these key issues, the Republican bill moves in exactly the wrong 
direction. It transfers all immigration enforcement functions to the 
Border and Transportation Security Directorate. Immigration service 
functions are relegated to the Bureau of Citizenship and Immigration 
Services, which lacks its own Under Secretary. These agencies will have 
authority to issue conflicting policies and conflicting interpretations 
of law. The formulation of immigration policy--our only chance to 
achieve coordination between these dispersed functions--will be subject 
to the conflicting views of various officials spread out in the new 
Department. With its failure to provide centralized coordination and 
lack of accountability, the Republican bill is a blueprint for failure.
  The Republican bill also eliminates needed protections for children 
who arrive alone in the United States. Often, these children have fled 
from armed conflict and abuses of human rights. They are traumatized 
and desperately need care and protection. The Lieberman bill included 
safeguards, developed on a bipartisan basis, to ensure that 
unaccompanied alien children have the assistance of counsel and 
guardians in the course of their proceedings. Under this bill, 
immigration proceedings will remain the only legal proceedings in the 
United States in which children are not provided the assistance of a 
guardian or court-appointed special advocate.
  Finally, the Republican bill will seriously undermine the role of 
immigration judges. Every day, immigration courts make life-altering 

[[Page S11419]]

The interests at stake are significant, especially for persons facing 
persecution. We need an immigration court system that provides 
individuals with a fair hearing before an impartial and independent 
tribunal, and meaningful appellate review. The Republican bill 
undermines the role and independence of the courts and the integrity of 
the judicial process.
  It vests the Attorney General with all-encompassing authority, 
depriving immigration judges of their ability to exercise independent 
judgement. Even more disturbing, the bill gives the Attorney General 
the authority to change or even eliminate appellate review. This result 
is a recipe for mistakes and abuse. An independent judicial system is 
essential to our system of checks and balances. Immigrants who face the 
severest of consequences deserve their day in court.
  Today, many Americans are concerned about the preservation of basic 
liberties protected by the Constitution. Clearly, as we work together 
to bring terrorists to justice and enhance our security, we must also 
act to preserve and protect our Constitution. Unfortunately, the 
Republican bill undermines the civil rights and privacy safeguards that 
Senator Feingold and I worked to include in the Lieberman bill. In 
particular, I am disappointed that the civil rights officer in the new 
Department will not be subject to Senate confirmation, and that there 
will not be a designated official in the Inspector General's Office to 
investigate civil rights violations.
  These changes to the civil rights and privacy safeguards are 
particularly disturbing in light of the fact that the bill explicitly 
authorizes the new Department to engage in the controversial practice 
of data mining. This practice allows the Government to establish a 
massive data base containing public and private information, with files 
on every American. The bill provides no language ensuring that the 
Government acts in compliance with Federal privacy laws and the 
  On the issue of worker rights, we should remember that union members 
risked and lost their lives and saved countless others through their 
actions on September 11. We will never forget the fine example that 
firefighters, construction workers, and many Government workers set 
that day. Union workers have also shown great bravery and sacrificed 
mightily in the service of homeland security since September 11. The 
postal workers and the hospital worker killed as a result of 
bioterrorism were all union members. The brave flight attendant whom 
the President recognized in the State of the Union Address for 
preventing terrorism was a member of a union.
  The dedication and resolve of these union members truly represents 
the best of America. Over 43,000 of the Federal workers affected by the 
proposed Government reorganization are currently union members. On 
September 11, unionized Federal workers played critical roles at both 
the World Trade Center and the Pentagon as they worked round the clock 
to make our homeland secure. These are the workers who risk their lives 
each day to protect our Nation's borders.
  This bill completely undermines the collective bargaining rights of 
the unionized employees transferred to the new Department on whom our 
security depends. It gives the President unlimited and unchecked 
authority to eliminate those collective bargaining rights. He only 
needs to claim that continued union rights would interfere with 
homeland security. Federal workers will also have no opportunity to 
meaningfully participate in creating the personnel system for the new 
Department. Moreover, this bill does not include any Davis-Bacon 
protections, despite longstanding Federal policy that workers should be 
paid prevailing wages on Federal construction projects. This bill 
displays a contempt for the Federal workers who serve with dedication 
every day to keep our Nation Safe.
  Denying Federal workers fundamental rights will also undermine our 
Nation's homeland security at a time when we can ill afford it. Among 
the many lessons we have learned since September 11 about lapses in 
intelligence efforts connected with those events is that Federal 
workers need protection to be able to speak out when they believe our 
Nation's security is at risk. Without the protections afforded by a 
union, Federal workers will be far less likely to speak out and protect 
the public for fear of unjust retaliation.
  The Republican bill's fundamental flaws were compounded to by the 
last-minute addition of numerous special-interest provisions. These 
provisions include the creation of new procedural barriers for the 
issuance of emergency security rules deemed essential to protect 
travelers by the Transportation Security Agency; an earmark for a new 
homeland security research center program at Texas A&M; and an 
exemption from the open-meetings requirement of the Federal Advisory 
Committee Act. The bill gives broad liability protection to 
manufacturers of ``anti-terrorism technology'' for claims arising from 
acts of terrorism. This provision will reduce the incentive of industry 
to produce effective antiterrorism products and limit the ability of 
victims to recover if future terrorist acts occur. It also shields from 
liability pharmaceutical companies that produce vaccine additives such 
as Thimerosal--the subject of pending litigation initiated by parents 
of autistic children. This provision has nothing to do with 
bioterrorism preparedness or homeland security--and everything to do 
with rewarding a large contributor to the Republican Party.
  While I agree with my Republican colleagues that we need to 
reorganize the Government in responses to the challenges that we now 
face, I cannot support the deeply flawed bill now before the Senate. In 
too many aspects, it misses the opportunity for real reform and is 
likely to undermine, not strengthen, the security of our homeland.
  Mr. WARNER. Madam President, I rise today to urge my colleagues to 
reject the pending Lieberman amendment to the homeland security bill. 
This amendment will prevent the President from gaining the authorities 
he needs to effectively deal with the very real and growing threat to 
our homeland. We should act, and act quickly. to give the President 
this authority.
  The current amendment would keep the President from addressing a key 
issue in providing protection to our homeland, that is, the issue of 
liability risk which must be resolved if the private sector is to 
actively provide innovative homeland defense technologies and 
solutions. Some form of indemnification or limitation of lability has 
been a part of U.S., war efforts since World War II, as evidence by 
congressional passage of the War Power Act of 1941 2 weeks after Pearl 
Harbor, and, since 1958, the use of the National Defense Contracts Act, 
or Public Law 85-804, to indemnify contracts issued by the Department 
of Defense and other national security agencies.
  To address the current terrorist threat, I have worked on the 
liability issue with the High Technology Task Force under the 
leadership of Senators Allen and Bennett to fashion various solutions 
to enable America to access the best private sector products and 
technologies to defend our homeland. This is particularly important to 
those innovative small businesses who do not have the capital to 
shoulder significant liability risk.
  The Lieberman amendment would nullify the compromise recently worked 
out with the House to limit this liability risk through limited tort 
reform. The Lieberman amendment would not provide any alternative to 
address the underlying problem. If this amendment passes what would be 
the incentives for This amendment is contractors to provide innovative 
solutions to our homeland security? For example, contractors will not 
sell chemical/biological detectors already available to DOD to other 
Federal agencies and State and local authorities because of the 
liability risk. Some of our Nation's top defense contractors will not 
sell these products because they are afraid to risk the future of their 
company on a lawsuit. There is an urgent need for authority to address 
this situation.
  While my earlier proposal on indemnification, which is another 
approach to addressing liability risk, is not included in the current 
bill, I believe that the compromise language will go a long way to 
addressing the problem. If it appears that additional authorities are 
necessary to complement the language in this bill, I pledge to work in

[[Page S11420]]

the coming Congress to provide any necessary authority that the Present 
needs to ensure that innovative homeland defense technologies and 
solutions are available to the Federal State and local governments, as 
well as to the private sector.
  I would also like to remark on the importance of Section 882 in the 
homeland security legislation to create an Office for National Capital 
Region Coordination within the new Department. This office will enable 
the Washington metropolitan region to prevent and respond to future 
terrorist attacks by coordinating the efforts of the Federal Government 
with state, local and regional authorities.
  The September 11 attacks underscored the unique challenges the 
National Capital Region faces. As the seat of our Nation's Government, 
the location of many symbolic structures, the venue for many public 
events attended by large numbers of people, a key tourism destination 
point and home to thousands of Federal workers and lawmakers, it has 
been and may continue to be a prime location for potential future 
terrorist attacks.
  The Washington metropolitan region needs a central Federal point of 
coordination for the many entities in the region which must deal with 
the Federal Government on issues of security. These authorities include 
the Federal Government, Maryland, Virginia and the District of 
Columbia, the Metropolitan Washington Council of Governments, the 
Washington Metropolitan Area Transit Authority, the Metropolitan 
Washington Airports Authority, the Military District of Washington, the 
judicial branch, the business community and the U.S. Congress. In no 
other area of the country must important decisionmaking and 
coordination occur between an independent city, two States, seventeen 
distinct local and regional authorities, including more than a dozen 
local police and Federal protective forces, and numerous Federal 
  A central Federal point of contact compliments the work of the 
Metropolitan Washington Council of Governments, COG, which established 
a comprehensive all-sector task force to improve communication and 
coordination when an incident of regional impact occurs. Currently, 
several Federal agencies have been involved in the task force, 
including the Office of Homeland Security, FEMA, the Office of 
Personnel Management, the Army Corps of Engineers, the Military 
District of Washington, the Department of Health and Human Services, 
the U.S. Public Health Service, and the Centers for Disease Control. 
Without a central Federal point of contact, it has been difficult, if 
not impossible, for effective coordination to occur among the region 
and these many entities.

  For example, the Continuity of Operations Plans for several federal 
agencies are instructing employees to use Metrorail and Metrobus 
service in the event of an emergency. There is not a central Federal 
contact, however, for the Washington Metropolitan Area Transit 
Authority, WMATA, to work with to ensure that the Federal Government's 
needs are met and Federal employees are fully protected.
  This new office within the Department of Homeland Security will 
resolve this problem by providing a much needed central Federal point 
of coordination. It will give all entities in the region a one-stop 
shop for dealing with the Federal Government on security issues, 
including plans and preparedness activities, including COG, WMATA, the 
Greater Washington Board of Trade and the Potomac Electric Power 
Company, PEPCO, whose statements have appeared in previous versions of 
the Congressional Record.
  On behalf on the region's 5 million residents, I commend the House 
and Senate for recognizing the unique needs of our nation's capital in 
preventing and responding to terrorism by supporting creation of the 
Office for National Capital Region Coordination.
  Passage of legislation to create a new Department of Homeland 
Security is crucial to our Nation's ability to respond to and prevent 
possible future terrorist attacks.
  Mr. LEAHY. Madam President, the idea of coordinating homeland 
security functions in a cabinet-level department is a constructive one 
and a sounds one. In large part it originated in this body with 
legislation offered by Senator Lieberman and Senator Specter, who 
deserve great credit for their work. President Bush, after initially 
opposing this idea, also deserves credit for coming to understand its 
value and for reversing his administration's resistance to it.
  In the several months that the Congress has spent in writing and 
debating this complex bill, the issue has not been whether such a 
department should be created, but how it should be created. The 
Judiciary Committee, which I chair, has played a constructive role in 
examining these issues in our hearings and in providing guidance in the 
writing of this bill, and I have supported and helped to advance the 
key objectives envisioned for this new department. The fact that we are 
on the verge of enacting a charter for the new department is good for 
the Nation and our efforts to defend the American people against the 
threats of terrorism. Many of the ``hows'' that have found their way 
into this bill, and the process by which that has happened, are a 
needless blot on this charter. As we act to approve this charter, we 
should also feel obligated to remedy many of these ill-advised and ill-
considered provisions in succeeding congressional sessions, through 
corrective steps and through close oversight.
  As they come to understand some of the imprudent extraneous additions 
to this bill, many Americans will feel that their trust and goodwill 
have been abused, and I share their disappointment about several 
elements of this version of the bill that has been placed, without due 
consideration, before the Senate. This deal, negotiated behind closed 
doors by a few Republican leaders in the House and Senate and the White 
House, has been presented to us as a done deal. It includes several 
blatant flaws that should at the very least be debated. That is why I 
could not vote for cloture to end debate on a bill almost 500-pages 
long that was presented to us for the first time only five days ago, on 
November 14.
  The bill undertakes a significant restructuring of the Federal 
Government by relocating in the new Department of Homeland Security 
several agencies, including the Immigration and Naturalization Service, 
the U.S. Secret Service, the Federal Emergency Management Agency, the 
Office of Domestic Preparedness, the Transportation Security 
Administration, the U.S. Customs Service, and the Coast Guard. In 
addition, many functions of the Bureau of Alcohol, Tobacco, Firearms 
and Explosives would be transferred to the Department of Justice.
  Overall I support the President's conclusion that several government 
functions should be reorganized to improve our effectiveness in 
combating terrorism and preserving our national security, although he 
has been responsible for leading all of these agencies and fulfilling 
their responsibilities since assuming the Presidency in January 2001, 
and the President himself opposed significant reorganization until 
recently. Homeland security functions are now dispersed among more than 
100 different governmental organizations. Testimony at a June 26, 2002, 
Judiciary Committee hearing illuminated the problem of such a confusing 
patchwork of agencies with none having homeland security as its sole or 
even primary mission. I had thought that the Department of Justice and 
FBI were the lead agencies responsible for the country's security in 
2001 and 2002, but I understand why the President has come to realize 
that the lack of a single agency responsible for homeland security 
increases both the potential for mistakes and opportunities for 
terrorists to exploit our vulnerabilities.

  The bill will bring under one cabinet level officer agencies and 
departments that share overlapping missions for protecting our border, 
our financial and transportation infrastructure and responding to 
crises. Having these agencies under a single cabinet level officer will 
help coordinate their efforts and focus their mission with a single 
line of authority to get the job done.
  This is something that I support.
  The bill also encourages information sharing. Our best defense 
against terrorism is improved communication and coordination among 
local, State, and Federal authorities; and between the U.S. and its 
allies. Through these efforts, led by the Federal government and with 
the active assistance of many

[[Page S11421]]

others in other levels of government and in the private sector, we can 
enhance our prevention efforts, improve our response mechanisms, and at 
the same time ensure that funds allotted for protection against 
terrorism are being used most effectively.
  The recent sniper rampage in the Washington, DC area demonstrated the 
dire need for such coordination among Federal, State and local law 
enforcement agencies. Fortunately, we were able to see the productive 
results of effective information sharing and coordination with the 
arrests of the two alleged snipers on October 31.
  While we all support increased sharing of relevant information with 
the new Department of Homeland Security by and among other Federal, 
State and local agencies, we must be careful that information sharing 
does not turn into information dumping. We want our law enforcement 
officials to have the information they need to do their jobs 
effectively and efficiently, with communications equipment that allows 
different agencies to talk to each other and with the appropriate 
training and tools so that multiple agencies are able to coordinate 
their responses during emergencies. We know that large amounts of 
information were collected, but never read or analyzed, before 
September 11, and we know that translators and resources are what we 
need to help make the already-gathered information useful.
  There is no dispute that information sharing is critical, but we have 
to make sure we do not go overboard. Information dumping is harmful to 
our national security if the information is not accurate, complete, or 
relevant, or if it is dumped in such a bulk fashion that end-users are 
unable to determine its reliability. The legislation before us provides 
very broad authority for information collection from and sharing with 
not just Federal, State and local law enforcement authorities, but also 
other government agencies, foreign government agencies and the private 
sector. Highly sensitive grand jury information, criminal justice, and 
electronic, wire, and oral interception information is authorized to be 
shared to not just across this country but also around the world. 
Without clear guidance, this sweeping new authority can be a recipe for 
mischief. The Congress now will have an imperative to monitor 
vigilantly and responsibly the implementation of this new authority to 
ensure that the risks to the privacy of the American people and the 
potential for abuse do not become a reality.

  This bill contains several constructive provisions, including 
establishment in the new Department of a Privacy Office and an Office 
for Civil Rights and Civil Liberties. The bill also includes the 
Sessions-Leahy bill, S. 3073, and whistleblower protections that the 
administration's original proposal rejected. In addition, as I will 
discuss in more detail in these remarks, the bill includes a 
prohibition on both the TIPS Program and a national identification 
system or card.
  I am pleased the bill, in section 880, forbids the creation of 
Operation TIPS, a proposed citizen reporting program theoretically 
designed to prevent terrorism. The ill-designed program threatened to 
turn neighbors into spies and to discredit valuable neighborhood watch 
programs. When I questioned the Attorney General about the program 
earlier this year, I found his answers to be incomplete and far from 
reassuring. As such, I was prepared to offer an amendment in the Senate 
to bar Operation TIPS, and I welcome the House's strong opposition to 
the program that has made my amendment unnecessary.
  Under the plan originally announced by the Justice Department, 
Operation TIPS would have enlisted millions of Americans as volunteers 
who would report their suspicions about their neighbors and customers 
to the government. This plan was criticized by Republicans and 
Democrats alike, and Justice Department officials then said they 
planned to make the program smaller than originally anticipated. But 
the Department never made clear how the program would work, what it 
would cost, or how the privacy interests of American citizens would be 
  Indeed, the administration offered a constantly shifting set of 
explanations to Congress and the public about how Operation TIPS would 
work, leaving Congress unable even to evaluate a program that could 
easily lead to the invasion of the privacy of our fellow Americans. 
Even the Operations TIPS website offered differing explanations of how 
the program would work, depending on what day a concerned user accessed 
it. For example, before July 25, the web site said that Operation TIPS 
``involving 1 million workers in the pilot stage, will be a national 
reporting system that allows these workers, whose routines make them 
well-positioned to recognize unusual events, to report suspicious 
activity.'' By contrast, the July 25 version declared that ``the 
program will involve the millions of American workers who, in the daily 
course of their work, are in a unique position to see potentially 
unusual or suspicious activity in public places.'' It was unclear 
whether these changes reflected actual changes in the Justice 
Department's plans, or whether they were simply cosmetic differences 
designed to blunt opposition to the program raised by concerned 
citizens, newspaper editorials, and Members of Congress.
  The administration originally proposed Operation TIPS as ``a 
nationwide program giving millions of American truckers, letter 
carriers, train conductors, ship captains, utility employees, and 
others a formal way to report suspicious terrorist activity.'' In other 
words, the administration would recruit people whose jobs gave them 
access to private homes to report on any ``suspicious'' activities they 
discovered. Nor would this program start small; the Administration 
planned a pilot program that alone would have enlisted 1 million 

  We also never received a full understanding of how the Administration 
planned to train Operation TIPS volunteers. The average citizen has 
little knowledge of law enforcement methods, or of the sort of 
information that is useful to those working to prevent terrorism. Such 
a setup could have allowed unscrupulous participants to abuse their new 
status to place innocent neighbors under undue scrutiny. The number of 
people who would have abused this opportunity is undoubtedly small, but 
the damage these relatively few could do would be very real and 
potentially devastating. In addition, it was crucial that citizen 
volunteers receive training about the permissible use of race and 
ethnicity in their evaluation of whether a particular individual's 
behavior is suspicious, but the Justice Department seemed not to have 
considered the issue.
  Even participants acting in good faith may have been prone to report 
activity that would not be suspicious to a well-trained professional. 
One law enforcement agencies are already operating under heavy burdens, 
and I questioned the usefulness of bombarding them with countless tips 
from millions of volunteers. As the Washington Post put it in a July 
editorial: ``It is easy to imagine how such a program might produce 
little or no useful information but would flood law enforcement with 
endless suspicions that would divert authorities from more promising 
investigative avenues.''
  The administration's plan also raised important questions about how 
and whether information submitted by TIPS volunteers would be retained. 
Many of us were deeply concerned about the creation of a TIPS database 
that would retain TIPS reports indefinitely. When he testified before 
the Judiciary Committee in July, the Attorney General said that he, 
too, was concerned about this. He told us that he had been given 
assurances that there would be no database, but he could not tell us 
who had given him those assurances. Many months later, the 
administration's plans on this issue still are unclear. We simply 
cannot allow a program that will use databases to store unsubstantiated 
allegations against American citizens to move forward.
  Opposition to Operation TIPS has been widespread. Representative 
Armey, the House Majority Leader, has led the fight against it in the 
House. The Postal Service refused to participate. The Boston Globe 
called it a scheme Joseph Stalin would have loved. In an editorial, The 
New York Times said: ``If TIPS is ever put into effect, the first 
people who should be turned in as a threat to our way of life are the 
Justice Department officials who thought up this most un-American of 
programs.'' The Las Vegas Sun said that ``Operation TIPS has the 

[[Page S11422]]

of becoming a monster.'' The Washington Post said that the 
Administration ``owes a fuller explanation before launch day.''
  In evaluating TIPS, we need to remember our past experience with 
enlisting citizen informants on such a grand scale. During World War I, 
the Department of Justice established the American Protective League, 
APL, which enrolled 250,000 citizens in at least 600 cities and towns 
to report suspicious conduct and investigate fellow citizens. For 
example, the League spied on workers and unions in thousands of 
industrial plants with defense contracts and organized raids on German-
language newspapers. Members wore badges and carried ID cards that 
showed their connection to the Justice Department and were even used to 
make arrests. Members of the League used such methods as tar and 
feathers, beatings, and forcing those who were suspected of disloyalty 
to kiss the flag. The New York Bar Association issued a report after 
the war stating of the APL: ``No other one cause contributed so much to 
the oppression of innocent men as the systematic and indiscriminate 
agitation against what was claimed to be an all-pervasive system of 
German espionage.'' No one wants to relive those dark episodes or 
anything close to them.

  I am pleased that we have achieved bicameral and bipartisan agreement 
that Operation TIPS goes too far, infringing on the liberties of the 
American people while promising little benefit for law enforcement 
efforts. If the administration comes to Congress with a limited, 
common-sense proposal that respects liberties, Congress will likely 
support it. But Congress cannot simply write a blank check for such a 
troubled program.
  I am also pleased that the bill, in section 1514, states clearly that 
nothing in the legislation shall be construed to authorize the 
development of a national identification system or card. Given the 
other provisions in the bill that pose a risk to our privacy, this at 
least is a line in the sand which I fully support.
  The House-passed bill also includes, in section 601, a provision that 
Senator Sessions and I introduced last month as S.3073. This provision 
will facilitate private charitable giving for servicemen and other 
Federal employees who are killed in the line of duty while engaged in 
the fight against international terrorism. Under current law, 
beneficiaries of members of the U.S. Armed Forces get paid only $6,000 
in death benefits from the government, over any insurance that they may 
have purchased. Moreover, these individuals may not be eligible for 
payments from any existing victims' compensation program or charitable 
organization. The Session-Leahy provision will provide much-needed 
support for the families of those who have made the ultimate sacrifice 
for their country. It encourages the establishment of charitable trusts 
for the benefit of surviving spouses and dependents of military, CIA, 
FBI, and other Federal Government employees who are killed in 
operations or activities to curb international terrorism. This 
provision also authorizes Federal officials to contact qualifying 
trusts on behalf of surviving spouses and dependents, pursuant to 
regulations to be prescribed by the Secretary of Defense. This will 
help to inform survivors about benefits and to ensure that those who 
are eligible have the opportunity to access the money. It will also 
spare grieving widows the embarrassment of having to go to a charity 
and ask for money. Finally, for the avoidance of doubt, this provision 
makes clear that Federal officeholders and candidates may help raise 
funds for qualifying trusts without running afoul of federal campaign 
finance laws.
  I am also pleased that, unlike the President's original, the current 
bill would ensure that employees of the new Department of Homeland 
Security will have all the same whistleblower protections as employees 
in the rest of the Federal Government. As we saw during the many 
FBI oversight hearings that the Judiciary Committee has held over the 
last 15 months, strong whistleblower protection is an important 
homeland security measure in itself.

  Indeed, it was whistleblower revelations that helped lead to the 
creation of this Department. The President was vehemently opposed to 
creating the new Department of Homeland Security for 9 months after the 
September 11 attacks. Then, just minutes before FBI whistleblower 
Coleen Rowley came before the Judiciary Committee in a nationally 
televised appearance to expose potential shortcomings in the FBI's 
handling of the Zacarias Moussaoui case before 9/11, the White House 
announced that it had changed its position and that the creation of a 
new cabinet-level Department of Homeland Security was vital. Of course, 
that made it all the more ironic that the President's original proposal 
did not assure whistleblower protections in the new Department.
  In any event, although the new Department has the same legal 
protections as those that apply in the rest of the government, the 
protections will mean nothing without the vigorous enforcement of these 
laws by the administration. The leadership of the new Department and 
the Office of Special Counsel must work to encourage a culture that 
does not punish whistleblowers, and the Congress--including the 
Judiciary Committee--must continue to vigorously oversee the new and 
other administrative departments to make sure that this happens.
  While I am glad that the many employees of the new Department will 
have the same substantive and procedural whistleblower protections as 
other government employees, I wish that we could have done more. 
Unfortunately, a Federal court with a monopoly on whistleblower cases 
that is hostile to such claims has improperly and narrowly interpreted 
the provisions of the Whistleblower Protection Act. Senators Grassley, 
Levin, Akaka and I had proposed a bipartisan amendment to this measure 
that would have strengthened whistleblower protections in order to 
protect national security. The amendment was similar to S. 995, of 
which I am a cosponsor, and our amendment would have corrected some of 
the anomalies in the current law. It is unfortunate for the success of 
the Department and for the security of the American people that the 
amendment was not part of the final measure, and I hope that we can 
work to pass S. 995 in the 108th Congress.
  The administration was slow to accept the idea for a cabinet-level 
department to coordinate homeland security, but experience in the 
months after the September 11 attacks helped in the evolution of the 
Administration's position. Soon after the President invited Governor 
Ridge to serve as the Director of an Office of Homeland Security within 
the White House, I invited Governor Ridge in October, 2001, to testify 
before the Judiciary Committee about how he would improve the 
coordination of law enforcement and intelligence efforts and about his 
views on the role of the National Guard in carrying out the homeland 
security mission, but he declined our invitation at that time. The 
administration would not allow Director Ridge to testify before 
  Without Governor Ridge's input, the Judiciary Committee continued 
oversight work that had begun in the summer of 2001, before the 
terrorist attacks, on improving the effectiveness of the U.S. 
Department of Justice, the lead Federal agency with responsibility for 
domestic security. This task has involved oversight hearings with the 
Attorney General and with officials of the Federal Bureau of 
Investigation and the Immigration and Naturalization Service. In the 
weeks immediately after the attacks, the committee turned its attention 
to hearings on legislative proposals to enhance the legal tools 
available to detect, investigate and prosecute those who threaten 
Americans both here and abroad. Committee members worked in partnership 
with the White House and the House to craft the new anti-terrorism law, 
the USA PATRIOT Act, which was enacted on October 26, 2001.

  We were prepared to include in the new anti-terrorism law provisions 
creating a new cabinet-level officer heading a new Department of 
Homeland Security, but we did not do so at the request of the White 
House. Indeed, from September, 2001, until June, 2002, the 
administration was steadfastly opposed to the creation of a cabinet-
level department to protect homeland security. Governor Ridge said in 
an interview with National Journal reporters in May, 2001, that if 
Congress put a bill on the President's desk to make his position 
statutory, he would, ``probably

[[Page S11423]]

recommend that he veto it.'' That same month, White House spokesman Ari 
Fleischer also objected to a new department, commenting that, ``You 
still will have agencies within the Federal government that have to be 
coordinated. So the answer is: Creating a Cabinet post doesn't solve 
  In one respect, the White House was correct: Simply moving agencies 
around among departments does not address the problems inside agencies 
like the FBI or the INS--problems like outdated computers, hostility to 
employees who report problems, lapses in intelligence sharing, and lack 
of translation and analytical capabilities, along with what many have 
termed ``cultural problems.'' The Judiciary Committee and its 
subcommittees have been focusing on identifying those problems and 
finding constructive solutions to fix them. We have worked hard to be 
bipartisan and even nonpartisan in this regard. To that end, the 
Committee unanimously reported the Leahy-Grassley FBI Reform Act, S. 
1974, to improve the FBI, especially at this time when the country 
needs the FBI to be as effective as it can be in the war against 
terrorism. Unfortunately, that bill has been blocked on the Senate 
floor since it was reported by the Judiciary Committee in April, 2002, 
by an anonymous Republican hold.
  The White House's about-face on June 6, 2002, announced just minutes 
before the Judiciary Committee's oversight hearing with FBI Special 
Agent Coleen Rowley, telegraphed the President's new support for the 
formation of a new homeland Security Department along the lines that 
Senator Lieberman and Senator Specter had long suggested.
  Two weeks later, on June 18, 2002, Governor Ridge transmitted a 
legislative proposal to create a new homeland security department. It 
should be apparent that knitting together a new agency will not by 
itself fix existing problems. In writing the charter for this new 
department, we must be careful not to generate new management problems 
and accountability issues. Yet the administration's early proposal 
would have exempted the new department from many legal requirements 
that apply to other agencies. The Freedom of Information Act would not 
apply, nor would the conflicts of interest and accountability rules for 
agency advisors. The new department head would have the power to 
suspend the Whistleblower Protection Act and the normal procurement 
rules and to intervene in Inspector General investigations. In these 
respects, the administration asked us to put this new department above 
the law and outside the checks and balances these laws are there to 

  Exempting the new department from laws that ensure accountability to 
the Congress and to the American people makes for soggy ground and a 
tenuous start--not the sure footing we all want for the success and 
endurance of this endeavor.
  We all wanted to work with the President to meet his ambitious 
timetable for setting up the new department. Senate Democrats worked 
diligently to craft responsible legislation that would establish a new 
department but would also make sure that it was not outside the laws. 
We all knew that one sure way to slow up the legislation would be to 
use the new department as the excuse to undermine or repeal laws not 
liked by partisan interests, or to stick unrelated political items in 
the bill under the heading of ``management flexibility.'' 
Unfortunately, the Republican leadership and the White House have been 
unable to resist that temptation, even as they urge prompt passage of a 
bill unveiled for the first time only 5 days ago.
  This bill has its problems. As I will discuss in more detail in the 
balance of my remarks, this legislation has five significant problems. 
It would: (1) undermine Federal and State sunshine laws permitting the 
American people to know what their government is doing, (2) threaten 
privacy rights, (3) provide sweeping liability protections for 
companies at the expense of consumers, (4) weaken rather than fix our 
immigration enforcement problems, and (5) under the guise of 
``management flexibility,'' it would authorize political cronyism 
rather than professionalism within the new department. These problems 
are unfortunate and entirely unnecessary to the overall objective of 
establishing a new department of homeland security. Republican leaders 
and the White House have forced on the Senate a process under which 
these problem areas cannot be substantively and meaningfully addressed, 
and that is highly regrettable and a needless blot on this charter. 
Though I will support passage of this legislation in order to get the 
new department up and running, the flaws in this legislation will 
require our attention next year, when I hope to work with the 
administration and my colleagues on both sides of the aisle to monitor 
implementation of the new law and to craft corrective legislation.
  First, the bill guts the FOIA at the expense of our national security 
and public health and safety. This bill eliminates a bipartisan Senate 
provision that I crafted with Senator Levin and Senator Bennett to 
protect the public's right to use the Freedom of Information Act, FOIA, 
in order to find out what our Government is doing, while simultaneously 
providing security to those in the private sector that records 
voluntarily submitted to help protect our critical infrastructures will 
not be publicly disclosed. Encouraging cooperation between the private 
sector and the government to keep our critical infrastructure systems 
safe from terrorist attacks is a goal we all support. But the 
appropriate way to meet this goal is a source of great debate--a debate 
that has been all but ignored by the Republicans who crafted this 
  The administration itself has flip-flopped on how to best approach 
this issue. The administration's original June 18, 2002, legislative 
proposal establishing a new department carved out of FOIA exemption, in 
section 204, and required non-disclosure of any 
``information'' ``voluntarily'' provided to the new Department of 
Homeland Security by ``non-Federal entities or individuals'' pertaining 
to ``infrastructure vulnerabilities or other vulnerabilities to 
terrorism'' in the possession of, or that passed through, the new 
department. Critical terms, such as ``voluntarily provided,'' were 

  The Judiciary Committee had an opportunity to query Governor Ridge 
about the administration's proposal on June 26, 2002, when the 
administration reversed its long-standing position and allowed him to 
testify in his capacity as the Director of the Transition Planning 
  Governor Ridge's testimony at that hearing is instructive. He seemed 
to appreciate the concerns expressed by Members about the President's 
June 18th proposal and to be willing to work with us in the legislative 
process to find common ground. On the FOIA issue, he described the 
Administration's goal to craft ``a limited statutory exemption to the 
Freedom of Information Act'' to help ``the Department's most important 
missions [which] will be to protect our Nation's critical 
infrastructure.'' (June 26, 2002 Hearing, Tr., p. 24). Governor Ridge 
explained that to accomplish this, the Department must be able to 
``collect information, identifying key assets and components of that 
infrastructure, evaluate vulnerabilities, and match threat assessments 
against those vulnerabilities.'' (Id., at p. 23).
  I do not understand why some have insisted that FOIA and our national 
security are inconsistent. The FOIA already exempts from disclosure 
matters that are classified; trade secret, commercial and financial 
information, which is privileged and confidential; various law 
enforcement records and information, including confidential source and 
informant information; and FBI records pertaining to foreign 
intelligence or counterintelligence, or international terrorism. These 
already broad exemptions in the FOIA are designed to protect national 
security and public safety and to ensure that the private sector can 
provide needed information to the government.
  Current law already exempts from disclosure any financial or 
commercial information provided voluntarily to the government, if it is 
of a kind that the provider would not customarily make available to the 
public. Critical Mass Energy Project v. NRC, 975 F.2d 871 (D.C. Cir. 
1992) (en banc). Such information enjoys even stronger nondisclosure 
protections than does material that the government requests. Applying 
this exception, Federal regulatory

[[Page S11424]]

agencies are today safeguarding the confidentiality of all kinds of 
critical infrastructure information, like nuclear power plant safety 
reports (Critical Mass, 975 F.2d at 874), information about product 
manufacturing processes land internal security measures (Bowen v. Food 
& Drug Admin., 925 F.2d 1225 (9th Cir. 1991), design drawings of 
airplane parts (United Technologies Corp. by Pratt & Whitney v. F.A.A., 
102 F.3d 6878 (2d Cir. 1996)), and technical data for video 
conferencing software (Gilmore v. Dept. of Energy, 4 F. Supp.2d 912 
(N.D. Cal. 1998)).
  The head of the FBI National Infrastructure Protection Center, NIPC, 
testified more than 5 years ago, in September, 1998, that the ``FOIA 
excuse'' used by some in the private sector for failing to share 
information with the government was, in essence, baseless. He explained 
the broad application of FOIA exemptions to protect from disclosure 
information received in the context of a criminal investigation or a 
``national security intelligence'' investigation, including information 
submitted confidentially or even anonymously. [Sen. Judiciary 
Subcommittee On Technology, Terrorism, and Government Information, 
Hearing on Critical Infrastructure Protection: Toward a New Policy 
Directive, S. HRG. 105-763, March 17 and June 10, 1998, at p. 107]
  The FBI also used the confidential business record exemption under 
(b)(4) ``to protect sensitive corporate information, and has, on 
specific occasions, entered into agreements indicating that it would do 
so prospectively with reference to information yet to be received.'' 
NIPC was developing policies ``to grant owners of information certain 
opportunities to assist in the protection of the information (e.g., 
`sanitizing the information themselves') and to be involved in 
decisions regarding further dissemination by the NIPC.'' Id. In short, 
the former administration witness stated: ``Sharing between the private 
sector and the government occasionally is hampered by a perception in 
the private sector that the government cannot adequately protect 
private sector information from disclosure under the Freedom of 
Information Act (FOIA). The NIPC believes that this perception is 
flawed in that both investigative and infrastructure protection 
information submitted to NIPC are protected from FOIA disclosure under 
current law.'' (Id.)
  Nevertheless, for more than 5 years, businesses have continued to 
seek a broad FOIA exemption that also comes with special legal 
protections to limit their civil and criminal liability, and special 
immunity from the antitrust laws. The Republicans are largely granting 
this business wish-list in the legislation for the new Department of 
Homeland Security.
  At the Senate Judiciary Committee hearing with Governor Ridge, I 
expressed my concern that an overly broad FOIA exemption would 
encourage government complicity with private firms to keep secret 
information about critical infrastructure vulnerabilities, reduce the 
incentive to fix the problems and end up hurting rather than helping 
our national security. In the end, more secrecy may undermine rather 
than foster security.
  Governor Ridge seemed to appreciate these risks, and said he was 
``anxious to work with the Chairman and other members of the committee 
to assure that the concerns that [had been] raised are properly 
addressed.'' Id. at p. 24. He assured us that ``[t]his Administration 
is ready to work together with you in partnership to get the job done. 
This is our priority, and I believe it is yours as well.'' Id. at p. 
25. This turned out to be an empty promise.
  Almost before the ink was dry on the administration's earlier June 
proposal, on July 10, 2002, the administration proposed to substitute a 
much broader FOIA exemption that would (1) exempt from disclosure under 
the FOIA critical infrastructure information voluntarily submitted to 
the new department that was designated as confidential by the submitter 
unless the submitter gave prior written consent, (2) provide limited 
civil immunity for use of the information in civil actions against the 
company, with the likely result that regulatory actions would be 
preceded by litigation by companies that submitted designated 
information to the department over whether the regulatory action was 
prompted by a confidential disclosure, (3) preempt State sunshine laws 
if the designated information is shared with State or local government 
agencies, (4) impose criminal penalties of up to one year imprisonment 
on Government employees who disclosed the designated information, and 
(5) antitrust immunity for companies that joined together with agency 
components designated by the President to promote critical 
infrastructure security.
  Despite the administration's promulgation of two separate proposals 
for a new FOIA exemption in as many weeks, in July, Director Ridge's 
Office of Homeland Security released The National Strategy for Homeland 
Security, which appeared to call for more study of the issue before 
legislating. Specifically, this report called upon the Attorney General 
to ``convene a panel to propose any legal changes necessary to enable 
sharing of essential homeland security information between the 
government and the private sector.'' (p. 33)

  The need for more study of the administration's proposed new FOIA 
exemption was made amply clear by its possible adverse environmental, 
public health and safety affects. Keeping secret problems in a variety 
of critical infrastructures would simply remove public pressure to fix 
the problems. Moreover, several environmental groups pointed out that, 
under the administration's proposal, companies could avoid enforcement 
action by ``voluntarily'' providing information about environmental 
violations to the EPA, which would then be unable to use the 
information to hold the company accountable and also would be required 
to keep the information confidential. It would bar the government from 
disclosing information about spills or other violations without the 
written consent of the company that caused the pollution.
  I worked on a bipartisan basis with many interested stakeholders from 
environmental, civil liberties, human rights, business and government 
watchdog groups to craft a compromise FOIA exemption that did not grant 
the business sector's wish-list but did provide additional 
nondisclosure protections for certain records without jeopardizing the 
public health and safety. At the request of Chairman Lieberman for the 
Judiciary Committee's views on the new department, I shared my concerns 
about the administration's proposed FOIA exemption and then worked with 
Members of the Governmental Affairs Committee, in particular Senator 
Levin and Senator Bennett, to craft a more narrow and responsible 
exemption that accomplishes the Administration's goal of encouraging 
private companies to share records of critical infrastructure 
vulnerabilities with the new Department of Homeland Security without 
providing incentives to ``game'' the system of enforcement of 
environmental and other laws designed to protect our nation's public 
health and safety. We refined the FOIA exemption in a manner that 
satisfied the Administration's stated goal, while limiting the risks of 
abuse by private companies or government agencies.
  This compromise solution was supported by the administration and 
other members of the Committee on Governmental Affairs and was 
unanimously adopted by that Committee at the markup of the Homeland 
Security Department bill on July 24, 2002. The provision would exempt 
from the FOIA certain records pertaining to critical infrastructure 
threats and vulnerabilities that are furnished voluntarily to the new 
Department and designated by the provider as confidential and not 
customarily made available to the public. Notably, the compromise FOIA 
exemption made clear that the exemption only covered ``records'' from 
the private sector, not all `'information'' provided by the private 
sector and thereby avoided the adverse result of government agency-
created and generated documents and databases being put off-limits to 
the FOIA simply if private sector ``information'' is incorporated. 
Moreover, the compromise FOIA exemption clearly defined what records 
may be considered ``furnished voluntarily,'' which did not cover 
records used ``to satisfy any legal requirement or obligation to obtain 
any grant, permit, benefit (such as agency forbearances, loans, or 
reduction or modifications of agency penalties or rulings), or other

[[Page S11425]]

approval from the Government.'' The FOIA compromise exemption further 
ensured that portions of records that are not covered by the exemption 
would be released pursuant to FOIA requests. This compromise did not 
provide any civil liability or antitrust immunity that could be used to 
immunize bad actors or frustrate regulatory enforcement enforcement 
action, nor did the compromise preempt state or local sunshine laws.
  Unfortunately, the new Republican version of this legislation that we 
are voting on today jettisoned the bipartisan compromise on the FOIA 
exemption, worked out in the Senate with the administration's support, 
and replaced it with a big-business wish-list gussied up in security 
garb. The Republican FOIA exemption would make off-limits to the FOIA 
much broader categories of ``information'' and grant businesses the 
legal immunities and liability protections they have sought so 
vigorously for over 5 years. This bill goes far beyond what is needed 
to achieve the laudable goal of encouraging private sector companies to 
help protect our critical infrastructure. Instead, it will tie the 
hands of the federal regulators and law enforcement agencies working to 
protect the public from imminent threats. It will give a windfall to 
companies who fail to follow Federal health and safety standards. Most 
disappointingly, it will undermine the goals of openness in government 
that the FOIA was designed to achieve. In short, the FOIA exemption in 
this bill represents the most severe weakening of the Freedom of 
Information Act in its 36-year history.
  In the end, the broad secrecy protections provided to critical 
infrastructure information in this bill will promote more secrecy which 
may undermine rather than foster national security. In addition, the 
immunity provisions in the bill will frustrate enforcement of the laws 
that protect the public's health and safety.
  Let me explain. The Republican FOIA exemption would allow companies 
to stamp or designate certain information as ``Critical Infrastructure 
Information'' or ``CII'' and then submit this information about their 
operations to the government either in writing or orally, and thereby 
obtain a blanket shield from FOIA's disclosure mandates as well as 
other protections. A Federal agency may not disclose or use 
voluntarily-submitted and CII-marked information, except for a limited 
``informational purpose,'' such as ``analysis, warning, 
interdependency, study, recovery, reconstitution,'' without the 
company's consent. Even when using the information to warn the public 
about potential threats to critical infrastructure, the bill requires 
agencies to take steps to protect from disclosure the source of the CII 
information and other ``business sensitive'' information.
  The bill contains an unprecedented provision that threatens jail time 
and job loss to any Government employee who happens to disclose any 
critical infrastructure information that a company has submitted and 
wants to keep secret. These penalties for using the CII information in 
an unauthorized fashion or for failing to take steps to protect 
disclosure of the source of the information are severe and will chill 
any release of CII information not just when a FOIA request comes in, 
but in all situations, no matter the circumstance. Criminalizing 
disclosures--not of classified information or national security related 
information, but of information that a company decides it does not want 
public--is an effective way to quash discussion and debate over many 
aspects of the Government's work. In fact, under this bill, CII 
information would be granted more comprehensive protection under 
Federal criminal laws than classified information.
  This provision has potentially disastrous consequences. If an agency 
is given information from an ISP about cyberattack vulnerabilities, 
agency employees will have to think twice about sharing that 
information with other ISPs for fear that, without the consent of the 
ISP to use the information, even a warning might cost their jobs or 
risk criminal prosecution.

  This provision means that if a Federal regulatory agency needs to 
issue a regulation to protect the public from threats of harm, it 
cannot rely on any voluntarily submitted information--bringing the 
normal regulatory process to a grinding halt. Public health and law 
enforcement officials need the flexibility to decide how and when to 
warn or prepare the public in the safest, most effective manner. They 
should not have to get ``sign off'' from a Fortune 500 company to do 
  While this legislation risks making it harder for the Government to 
protect American families, it will make it much easier for companies to 
escape responsibility when they violate the law by giving them 
unprecedented immunity from civil and regulatory enforcement actions. 
Once a business declares that information about its practices relates 
to critical infrastructure and is ``voluntarily'' provided, it can then 
prevent the Federal Government from disclosing it not just to the 
public, but also to a court in a civil action. This means that an 
agency receiving CII-marked submissions showing invasions of employee 
or customer privacy, environmental pollution, or government contracting 
fraud will be unable to use that information in a civil action to hold 
that company accountable. Even if the regulatory agency obtains the 
information necessary to bring an enforcement action from an 
alternative source, the company will be able to tie the government up 
in protracted litigation over the source of the information.
  For example, if a company submits information that its factory is 
leaching arsenic in ground water, that information may not be turned 
over to local health authorities to use in any enforcement proceeding 
nor turned over to neighbors who were harmed by drinking the water for 
use in a civil tort action. Moreover, even if EPA tries to bring an 
action to stop the company's wrongdoing, the ``use immunity'' provided 
in the Republican bill will tie the agency up in litigation making it 
prove where it got the information and whether it is tainted as ``fruit 
of the poisonous tree''--i.e., obtained from the company under the 
``critical infrastructure program.''
  Similarly, if the new Department of Homeland Security receives 
information from a bio-medical laboratory about its security 
vulnerabilities, and anthrax is released from the lab three weeks 
later, the Department will not be able to warn the public promptly 
about how to protect itself without consulting with and trying to get 
consent of the laboratory in order to avoid the risk of job loss or 
criminal prosecution for a non-consensual disclosure. Moreover, if the 
laboratory is violating any State, local or Federal regulation in its 
handling of the anthrax, the Department will not be able to turn over 
to another Federal agency, such as the EPA or the Department of Health 
and Human Services, or to any State or local health officials, 
information or documents relating to the laboratory's mishandling of 
the anthrax for use in any enforcement proceedings against the 
laboratory, or in any wrongful death action, should the laboratory's 
mishandling of the anthrax result in the death of any person. The bill 
specifically states that such CII-marked information ``shall not, 
without the written consent of the person or entity submitting such 
information, be used directly by such agency, any other Federal, State, 
or local authority, or any third party, in any civil action arising 
under Federal or State law if such information is submitted in good 
faith.'' [H.R. 5710, section 214(a)(1)(C)]
  Most businesses are good citizens and take seriously their 
obligations to the government and the public, but this ``disclose-and-
immunize'' provision is subject to abuse by those businesses that want 
to exploit legal techniques to avoid regulatory guidelines. This bill 
lays out the perfect blueprint to avoid legal liability: funnel 
damaging information into this voluntary disclosure system and pre-empt 
the Government or others harmed by the company's actions from being 
able to use it against the company. This is not the kind of two-way 
public-private cooperation that our country needs.

  The scope of the information that would be covered by the new 
Republican FOIA exemption is overly broad and would undermine the 
openness in government that FOIA was intended to guarantee. Under this 
legislation, information about virtually every important sector of our 
economy that today the public has a right to see can shut off from 
public view simply by labeling

[[Page S11426]]

it ``critical infrastructure information.'' Today, for example, under 
current FOIA standards, courts have required Federal agencies to 
disclose (1) pricing information in contract bids so citizens can make 
sure the government is wisely spending their taxpayer dollars; (2) 
compliance reports that allow constituents to insist that government 
contractors comply with federal equal opportunity mandates; and (3) 
banks' financial data so the public can ensure that federal agencies 
properly approve bank mergers. Without access to this kind of 
information, it will be harder for the public to hold its Government 
accountable. Under this bill, all of this information may be marked CII 
information and kept out of public view.
  The Republican FOIA exemption goes so far in exempting such large 
amount of material from FOIA's disclosure requirements that it 
undermines Government openness without making any real gains in safety 
for families in Vermont and across America. We do not keep America 
safer by chilling Federal officials from warning the public about 
threats to their health and safety. We do not ensure our nation's 
security by refusing to tell the American people whether or not their 
federal agencies are doing their jobs or their Government is spending 
their hard earned tax dollars wisely. We do not encourage real two-way 
cooperation by giving companies protection from civil liability when 
they break the law. We do not respect the spirit of our democracy when 
we cloak in secrecy the workings of our Government from the public we 
are elected to serve.
  Notably, another part of the bill, section 892, would further 
undermine Government sunshine laws by authorizing the President to 
prescribe and implement procedures requiring Federal agencies to 
``identify and safeguard homeland security information that is 
sensitive but unclassified'' The precise type of information that would 
be covered by this new category of ``sensitive'' information that is 
not classified but subject to carte blanche executive authority to keep 
secret is not defined and no guidance is provided in the Republican 
bill as to how far the President may go.
  As the Rutland Herald so aptly put it in an editorial on November 16, 
the Republicans ``are moving to cloak the Federal Government in an 
unprecedented regime of secrecy.'' The argument over the scope of the 
FOIA and unilateral executive power to shield matters from public 
scrutiny goes to the heart of our fundamental right to be an educated 
electorate aware of what our government is doing. The Rutland Herald 
got it right in explaining. ``The battle was not over the right of the 
government to hold sensitive, classified information secret. The 
government has that right. Rather, the battle was over whether the 
government would be required to release anything it sought to 
  Second, extraneous provisions added by the House also pose 
significant privacy risks. As I noted before, increased information 
sharing is necessary but also poses privacy risks if the government is 
not properly focused on the information necessary to collect, the 
people appropriate to target for surveillance and the necessary 
controls to ensure that dissemination is confined to those with a need 
to know.
  Recent press reports have warned that this bill will turn it into a 
``supersnoop's dream'' because it will allow creation of a huge 
centralized grand database containing a dossier or profile of private 
transactions and communications that each American has had within the 
private sector and with the government. Indeed, in section 201, the 
bill authorizes a new Directorate for Information Analysis and 
Infrastructure Protection to collect and integrate information from 
government and private sector entities and to ``establish and utilize . 
. . data-mining and other advanced analytical tools.'' In addition, in 
section 307, the bill authorizes $500,000,000 next year to be spent by 
a new Homeland Security Advanced Research Projects Agency, HSARPA, to 
make grants to develop new surveillance and other technologies for use 
in detecting, preventing and responding to homeland security threats.
  We do not want the Federal Government to become the proverbial ``big 
brother'' while every local police and sheriff's office or foreign law 
enforcement agency to become ``little brothers.'' How much information 
should be collected, on what activities and on whom, and then shared 
under what circumstances, are all important questions that should be 
answered with clear guidelines understandable by all Americans and 
monitored by Congress, in its oversight role, and by court review to 
curb abuses.
  Other provisions added in haste to the Republican House-passed bill 
raise serious concerns about privacy protections for the sensitive 
electronic communications of law-abiding Americans. In particular, the 
so-called ``emergency disclosure'' amendment in section 225(d) would 
greatly expand the ability of Internet service providers to reveal 
private communications to Government agencies without any judicial 
authority or any evidence of wrongdoing.
  As Americans move their lives online, the privacy of their sensitive 
e-mails, instant messages, and web traffic is of growing concern. 
Current law protects the privacy of electronic communications by 
prohibiting service providers from revealing the contents of those 
communications to anyone without proper lawful orders. Emergency 
disclosure provisions exist in the current law based on the reasonable 
premise that ISPs who encounter an imminent threat of death or serious 
injury should be able to reveal communications to law enforcement 
agencies on an emergency basis, even without judicial oversight. We 
just recently expanded that emergency exception a year ago in the USA 
PATRIOT Act to provide even more flexibility for service providers.
  In practice, however, the emergency disclosure authority is being 
used in a different way. Reports in the press and from the field 
indicate that ISP's university and libraries are approached by 
Government agents and asked to disclose communications ``voluntarily'' 
for ongoing investigations. Providers are then faced with a terrible 
choice--turn over the private communications of their customers without 
any court order, or say ``no'' to a government request. Of course, many 
comply with the requests. Small providers have few legal resources to 
challenge such requests. The agents who are making the requests may be 
the same agents to whom the providers will have to turn for help in the 
event of hacking attacks on other problems. So without proper 
restrictions, such ``voluntary disclosure'' provisions risk becoming a 
major exception to the law. Section 225(d) takes this exception even 
further and turns it into a loophole big enough to drive a truck 
through. It would allow literally thousands of local, State and Federal 
employees to seek private e-mails, instant messages, and other 
sensitive communications without any judicial orders ad even a 
subpoena. ISPs could turn over those communications based on vague 
concerns of future injury to someone, even if those concerns are 
totally unreasonable.

  Section 225(d) makes three important changes to the already very 
generous authorities for these extraordinary disclosures, which 
Congress gave to law enforcement in the USA PATRIOT Act just one year 
ago. First, it would remove the requirement that there be ``imminent'' 
danger of injury or death. Instead it would allow these extraordinary 
disclosures when there is some danger, which might be far in the future 
and far more hypothetical. As the Attorney General and the President 
have warned us consistently over the last year, the entire country 
faces some risk of future attack. Under this new language, there will 
always be a rationale for using the so-called ``emergency'' disclosure 
  Second, section 225(d) would remove even the low hurdle that there be 
a ``reasonable belief'' in danger on the part of the ISP. Instead, this 
new provision would allow these sensitive disclosures if there is any 
good faith belief--even if totally unreasonable--of danger. Vague, 
incoherent, or even obviously fictitious threats of future danger could 
all form the basis for disclosing our most private electronic 
communications under this new provision of law.
  Finally, section 225(d) would allow disclosure of sensitive 
communications to any local, State or Federal Government entity, not 
just law enforcement agents. That could include literally hundreds of 
thousands of Government employees. The potential for abuse is

[[Page S11427]]

enormous. More importantly, in cases of real threats of death or 
serious injury, it is law enforcement agencies--trained to deal with 
such situations and cognizant of legal strictures--who should be the 
first contact point for concerned citizens.
  As a result of Section 225(d), many more disclosures of sensitive 
communications would be permitted without any court oversight. 
Moreover, these disclosures would happen without any notice to people--
even after the fact--that their communications have been revealed. It 
would allow these disclosures to be requested by potentially thousands 
of government employees, ranging from cotton inspectors to dogcatchers 
to housing department administrators.
  The public's most sensitive e-mails, web transactions, and instant 
messages sent to love ones, business associates, doctors and lawyers, 
and friends deserve the highest level of privacy we can provide. The 
provisions of section 225(d) make a mockery of our privacy laws, and 
the carefully crafted exceptions we have created in them, by allowing 
disclosure of our most private communications to thousands of 
Government officials based on the flimsiest of excuses. These 
provisions were never approved by any committee in the Senate, are not 
in the interests of the American people, and should not now be finding 
there way into the law of the land.
  Third, the bill provides liability protections for companies at the 
expense of consumers. I am disappointed that the measure also contains 
sweeping liability protection for corporate makers of vaccines and any 
other products deemed to be ``anti-terrorism technology'' by the 
Secretary of Homeland Security. This unprecedented executive authority 
to unilaterally immunize corporations from accountability for their 
products is irresponsible and endangers the consumers and our military 
service men and women.
  These provisions, for example, would apply to negligence, gross 
negligence and even willful misconduct in producing vaccines, gas 
masks, airport screening machines and any other ``anti-terrorism 
technology'' used by the general public and our service men and women.
  In addition, the bill would completely eliminate punitive damages 
against the maker of such a defective product. Without the threat of 
punitive damages, callous corporations can decide it is more cost-
effective to continue cutting corners despite the risk to American 
lives. This would let private parties avoid accountability in cases of 
wanton, willful, reckless, or malicious conduct.
  There is no need to enact these special legal protections and take 
away the rights of victims of defective products. At a time when the 
American people are looking for Congress to take measured actions to 
protect them from acts of terror, these ``tort reform'' proposals are 
unprecedented, inappropriate, and irresponsible. At the very moment 
that the President is calling on all Americans to be especially 
vigilant, this legislation lets special interests avoid their 
responsibility of vigilance under existing law.
  I am disappointed that some may be taking advantage of the situation 
to push ``tort reform'' proposals that have been rejected by Congress 
for years. This smacks of political opportunism. I strongly oppose 
rewriting the tort law of each of the 50 States for the benefit of 
private industry and at the expense of consumers and our service men 
and women, and their families.
  Further, I am saddened that this so-called compromise provides 
retroactive liability protection for some private airport security 
firms involved in the September 11th terrorist attacks. Last year, 
Congress explicitly excluded private airport security firms from the 
liability limits for airlines in the Aviation and Transportation 
Security Act because we did not know if any airport screening firm may 
have contributed to the September 11th attacks through willful 
misconduct or negligence. Unfortunately, we still do now know all the 
facts regarding the 9/11 attacks because the Bush Administration has 
opposed Congressional oversight and an independent commission to 
investigate the attacks.
  This special-interest provision in the so-called compromise is a 
travesty to the families of the victims of September 11th. Indeed, I 
have already been contacted by a family member of a 9/11 victim 
outraged by this retroactive liability protection. I share their 
  I also find it particularly galling, that just because ``the White 
House wants it,'' this bill includes a provision that balantly puts the 
interests of a few corporate pharmaceutical manufacturers before the 
interests of thousands of consumers, parents, and children. Sections 
714 through 716 give a ``get out of court free card'' to Eli Lilly and 
other manufacturers of thimerasol. Let's be clear, this provision has 
nothing to do with homeland security. Smallpox and anthrax vaccines do 
not use thimerosal. Thimerasol is a mercury-based vaccine preservative 
that was used until recently in children's vaccines for everything from 
hepatitis B to diphtheria. By making changes to the Vaccine Injury 
Compensation Program sought by the pharmaceutical industry, this 
provision cuts the legs out from under thousands of parents currently 
in court seeking compensation for the alleged harm caused by 
  For years, I have been working to remove sources of mercury from our 
environment because of the neurological effect of mercury on infants 
and children. Although Eli Libby's own documents show that they knew of 
the potential risks from mercury-based preservatives in the 1940s, its 
use was not stopped until 1999 when pediatricians and the Public Health 
Service acted. Instead of looking into why pharmaceutical companies and 
the Federal Government failed to act for so long or improving the 
current compensation system, the Homeland Security bill takes away the 
legal options of parents and gives pharmaceutical companies new 
protections from large penalties.
  Fourth, the bill weakens immigration enforcement just when we need it 
the most. The Republican House-passed bill fails to take important 
steps to help fix and restructure our immigration agencies. This 
Republican package abandons the close coordination between immigration 
enforcement and immigration services that was included in the Lieberman 
amendment to the Homeland Security bill. Instead, immigration 
enforcement falls under the Undersecretary for Border and 
Transportation Policy, while immigration services are relegated to a 
bureau that lacks its own undersecretary. Apparently, the 
Undersecretary for Border and Transportation Security is expected to be 
an expert in immigration enforcement, FEMA, agriculture, and other 
issues. Meanwhile, there is no one figure within the Homeland Security 
Department who is responsible for immigration policy. Testimony before 
the Judiciary Committee showed clearly the numerous links between the 
enforcement of our immigration laws and provision of immigration 
benefits--it is unfortunate that this bill fails to acknowledge those 
  Unfortunately, this legislation fails to codify the Executive Office 
of Immigration Review appropriately. Instead of defining the functions, 
shape, and jurisdiction of the EOIR as the Lieberman amendment did, it 
simply says there shall be an EOIR and the Attorney General shall have 
complete discretion over it. It is critical that both immigrants and 
the Government have a meaningful opportunity to appeal adverse 
decisions, and we should have done more through this legislation to 
guarantee it.
  In addition, I am disappointed that provisions designed to guarantee 
decent treatment for unaccompanied minors were not included in the 
Republican amendment. Through Senator Feinstein's leadership, the 
Lieberman substitute assured that unaccompanied alien minors received 
counsel. The Judiciary Committee heard earlier this year from children 
who had been mistreated by the immigration system, and we had a real 
opportunity to solve that problem through this bill. We have failed to 
take advantage of that opportunity.
  I will continue to work to ensure that the reorganization of our 
immigration service proceeds in as orderly and appropriate a fashion as 
possible. I have spoken often about the valuable service provided by 
employees of the Immigration and Naturalization Service in Vermont, and 
the need to retain their expertise in any reshuffling of the agency's 
functions. We will not make

[[Page S11428]]

 our nation safer by alienating, underutilizing, or discarding 
knowledgeable employees, and I will do what I can to prevent that 
  Finally, the bill undermines the professionalism in favor of the 
``management flexibility'' to engage in political cronyism at the new 
Department. Although it has already received substantial comment, I 
want to add my voice to those who have criticized the administration 
for its heavy-handed and wrong-headed approach to the rights of 
employees who will come under the new Department. At the same time we 
are seeking to motivate the Government workers who will be moved to the 
new Department with an enhanced security mission, the administration is 
insisting on provisions that threaten the job security for these 
hardworking Government employees.
  The administration should not use this transition as an excuse to cut 
the wages and current workplace security and rights of the brave 
employees who have been defending the Nation. That is not the way to 
encourage retention or recruitment of the vital human resources on 
which we will need to rely.
  I represent some of those employees and have firsthand knowledge of 
their dedication to our nation and their jobs. Contrary to the 
administration's pre-election rhetoric, where disputes over employment 
conditions have had potential effects on the public safety, they have 
been resolved quickly. I am disappointed that the bill we consider 
today contains so few protections for these vital employees, and that 
the White House chose to use these valuable public servants in an 
election year tactic.
  So our vote today will help answer the question of whether a new 
Department of Homeland Security will be created--a question that has 
never really been at issue or in doubt. Perhaps there are members of 
the Senate who oppose creation of this Department, though I am not 
aware of such opposition. But many troubling questions remain about the 
``hows'' as we move forward to charter this massive new agency. A 
process has been imposed on the Senate that prevents addressing them 
adequately in the remaining hours of this session. But answering and 
resolving these questions, in the interest of the security and privacy 
and well-being of the American people, will be an imperative that the 
administration and the next Congress must not shirk.


  Mr. GREGG. Madam President, one of the Senate's highest priorities, 
and one of my own personal priorities, has been ensuring that State and 
local first responders are prepared to handle a terrorist attack, 
especially one involving weapons of mass destruction. One of the 
principal ways I have tried to do this is through the Office of 
Domestic preparedness at the Department of Justice. Through the 
Appropriations subcommittee that Senator Hollings and I oversee, the 
Senate built ODP from a $5 million program into an $800 million program 
in just five years. Since 1998, ODP has been the focal point within the 
Federal Government for State and local jurisdictions to receive 
equipment grants, training, technical assistance, and exercise support 
for combating terrorism.
  The original legislation creating the Department of Homeland Security 
would have combined the preparedness functions of ODP and the response 
functions of FEMA into a single Directorate, the Directorate of 
emergency Preparedness and Response. The problem with this framework is 
that the much larger FEMA would have dominated the new Directorate, and 
its priorities and philosophies would have obscured those of ODP. ODP 
possesses unique experience and expertise when it comes to preparing 
the State and local jurisdictions to handle terrorism. FEMA has very 
little experience with this side of the equation: its role has always 
been to respond after an event occurs.
  FEMA employs something called the ``all-hazards'' approach to 
disaster response. Under the all-hazards approach, all disasters are 
handled the same way. But we cannot treat terrorism the same way we 
treat other disasters. The attack on the World Trade Center provides an 
excellent case in point. On September 11, New York City first 
responders treated the first explosion as a high-rise fire and set up 
their command center in Tower II. Because the responders employed a 
generic, all-hazards response, they did not anticipate the second 
explosion in Tower II. Our approach to terrorism must be different from 
our approach to natural disasters--it must be innovative and adaptive. 
It must anticipate a predatory adversary that constantly devises new 
ways to get around each new set of measures we take.
  There are four key components, or ``pillars'', involved in combating 
terrorism: prevention, preparedness, crisis management, and consequence 
management. Justice has traditionally been responsible for 
preparedness, and FEMA has traditionally been responsible for 
consequence management, or disaster response. The Homeland Security 
legislation, as originally written, would have lumped these components 
together. However, the people who are responsible for responding in the 
immediate aftermath of an attack cannot also be responsible for 
carrying out sustained training, equipment, and exercise programs. 
These are programmatic initiatives that must be executed day in and day 
out. FEMA is a response agency. It will not be able to give terrorism 
preparedness the time and attention it deserves because it must 
constantly respond to disasters around the country.
  The amendment I offered to the Homeland Security bill acknowledged 
the importance of consolidating the preparedness and response functions 
in the new Department of Homeland Security. However, the amendment set 
them apart in order to preserve both FEMA's and ODP's areas of 
expertise. The amendment created the Office for Domestic Preparedness 
under the Directorate of Border and Transportation Security and 
transferred terrorism preparedness functions to this new office from 
both the Justice Department and FEMA. Specifically, the new Office for 
Domestic Preparedness includes Justice's current Office for Domestic 
Preparedness and parts of FEMA's Office of National Preparedness. ODP 
will be responsible for all of our preparedness activities and FEMA 
will continue to have the lead for consequence management. Under this 
framework, the preparedness and response functions will be preserved, 
yet will be closely coordinated by the Secretary of Homeland Security. 
This is the best way to prevent FEMA's and ODP's critical functions 
from being blurred within the Department of Homeland Security.
  The responsibilities of the new Office for Domestic Preparedness will 
be similar to what they are now under the Department of Justice: 
coordinating terrorism preparedness at the Federal level; assisting 
State and local jurisdictions with their preparedness efforts; 
conducting strategic and operational planning; coordinating 
communications at all levels of government; managing the preparedness 
grants to State and local jurisdictions; and assisting them in the 
implementation of the President's National Strategy. This is, in fact, 
one of the key reasons why I have pushed for the creation of the Office 
for Domestic Preparedness within the new Department. It ensures the 
continuity of preparedness assistance for State and local 
jurisdictions. The office they have looked to for the last five years 
for equipment, training, and exercise assistance will continue to 
exist, but under the leadership of the Undersecretary for Border and 
Transportation Security.
  If not for this amendment, ODP would most likely have been subsumed 
by FEMA, and all of the work ODP has accomplished would have been lost. 
ODP's successful methodologies for providing assistance to State and 
local jurisdictions would have been scrapped in favor of FEMA's 
undeveloped and untested approach. An example of one such successful 
methodology is the system of accountability ODP established by 
requiring States to have a terrorism preparedness strategy before they 
could receive Federal funding. The State strategies have allowed ODP to 
make informed and strategic decisions about how to allocate funding for 
equipment, training, and exercises. FEMA has no such system in place. 
By keeping ODP's and FEMA's activities distinct, we preserve the 
progress each has made in their respective areas of expertise.
  The amendment permits FEMA to concentrate on a mission that it is 
uniquely equipped to perform: disaster response. This is extremely 

[[Page S11429]]

especially in light of the fact that there is an average of 34 major 
disaster declarations per year in the U.S. I know that my coastal State 
colleagues were very concerned that FEMA's natural disaster 
responsibilities, in particular its mission of responding to 
hurricanes, would be eclipsed by its new homeland security 
responsibilities. I am certain that this concern is shared by Senators 
from States that face the threat of earthquakes, floods, and wildfires. 
This provision makes it clear that FEMA is out of the preparedness 
  This was one of the primary reasons why I felt such an amendment was 
necessary. It will help prevent competition between terrorism response 
and natural disaster response within the new Department. Under the 
original legislation, the Directorate of Emergency Preparedness and 
Response would have been pressured on the one hand to focus its 
resources and attention on natural disasters, and on the other hand on 
combating terrorism. This competition would have weakened our level of 
preparedness for either type of disaster. By setting them apart within 
the new Department, we have built in a natural balance between these 
two critical areas.
  I was disappointed to learn that some at FEMA are already busy 
planning ways to avoid having to execute the directive. I am told that 
FEMA intends, during the next few weeks, to re-designate all of the 
preparedness staff at the Office of National Preparedness as ``all-
hazards staff''. By renaming them all-hazards, FEMA could retain its 
preparedness functions. These actions come despite the fact that at 
least 38 U.S. Senators believe those functions should reside at the 
Office for Domestic Preparedness and not at FEMA. These actions come 
despite our having negotiated in good faith with the White House. These 
actions come despite agreement among the Office of Homeland Security, 
the House of Representatives, and the Senate.
  On a different note, it has recently come to my attention that the 
Office of Management and Budget is considering requiring State and 
local jurisdictions to match the Federal preparedness grants. OMB 
should not impose this requirement on State and local jurisdictions. 
They do not have the fiscal resources to support such a requirement. 
The equipment, training, and exercise initiatives that I have here 
discussed are part of a comprehensive National preparedness program. 
State and local jurisdictions will not be able to achieve the standards 
or readiness that are required, especially at this time of increased 
threat to our Nation, if they are forced to comply with matching 
requirements. In point of fact, State and local governments already 
bear most of the burden in protecting our Nation from terrorism. They--
the first responders, who willingly and courageously put themselves in 
harm's way--protect the American people. Just after September 11, the 
President duly acknowledged how critical first responders are to our 
National security. We cannot shortchange them now. We are at war and 
the Federal Government must fully support our State and local first 
  ODP has provided training to approximately 114,000 first responders 
and exercise support to more than 100,000 first responders nationwide. 
It has given out nearly $600 million in equipment grants to State and 
local jurisdictions since its creation in 1998. It also executed the 
largest terrorism exercise in U.S. history, TOPOFF. I have heard 
reports that those who participated in the multi-venue TOPOFF were the 
only ones truly prepared to handle the challenges presented on 
September 11. The amendment acknowledges that we do have an effective 
system in place and it preserves what has been accomplished.
  The amendment I submitted acknowledges that the Office of Domestic 
Preparedness and FEMA both perform critical roles and must work closely 
together. I commend the administration for recognizing the need and 
working with the Senate to get the job done. I would also like to thank 
Senator Lott for his excellent work on this bill, as well as his 
counsel Rohit Kumar. Finally, I would like to recognize Dean Kueter, 
Jr., of the National Sheriffs Association for his tireless work in 
generating grassroots support on this important issue.
  Ms. MIKULSKI. Madam President, there is nothing more important than 
America's national security. I will vote for the Homeland Security Act 
because it organizes our Government to better detect, prevent and 
respond to acts of terrorism.
  This bill organizes twenty-two very different agencies into a one-
stop-shop for homeland security a single, mission-driven agency whose 
primary goal is protection of the homeland. Why is this important? 
Because it will improve our ability to detect terrorism before it 
occurs, by strengthening immigration systems, better coordination of 
intelligence. It will improve our ability to prevent terrorism, through 
stronger port security, border security, transportation security. It 
will improve our ability to respond to acts of terrorism through the 
Federal Emergency Management Agency.
  Yet I am disappointed that this legislation has been politicized in 
addressing an issue as important as national security. Congress and the 
President shouldn't be Democrats or Republicans. We should be the Red, 
White, and Blue Party. In recent weeks, I've seen some cynical actions. 
I've seen Federal employees treated as if they're the enemy. I've seen 
a Vietnam War hero's patriotism questioned. I've seen this 
administration claim that the creation of a Department of Homeland 
Security was its idea and its priority, though we all know they long 
opposed it--just as they opposed the creation of a national commission 
to look at what went wrong on September 11. I've seen a package of 
special interest goodies forced into a bill for no other reason than 
pay-back politics.
  Let's consider some of these issues. First, on Federal employees, I 
resent that I am being forced to chose between Homeland Security and 
protecting the rights of those who guard the homeland--our Federal 
employees who have the constitutional right to organize, to have 
freedom of assembly, to do collective bargaining. In standing up for 
America, why aren't we also standing up for those who are protecting 
America? Our brave and gallant Federal employees who are out there 
every day on the front line wanting to do their job, whether they are 
customs inspectors, border agents or FEMA's emergency workers.
  Federal workers stand sentry every day to protect America. When our 
firefighters ran up those burning buildings at the World Trade Center, 
nobody asked if they were union. They didn't look at the clock or check 
their work rules. When our emergency workers from Maryland dashed over 
to be part of the mutual aid at the Pentagon, they were mission driven. 
They were there because they were union members. They belong to a 
union. They belong to a union called the United States of America. 
That's the union that they belong to, and that's the union they put 
  America is in the midst of a war against terrorism. We have a long 
way to go. Yet instead of focusing on the war effort, we're waging war 
on Federal employees. The administration must use this new flexibility 
responsibly and judiciously. It is not a blank check. If anyone takes 
undue advantage of this new flexibility, I will lead the charge to 
change it. But it is sad and disgraceful that the rights of our Federal 
employees were held hostage in an effort to make our Nation secure 
against terrorism.
  I'm also disappointed with the special interest provisions that were 
added to this bill. The late Senator Wellstone added a provision on 
companies that move overseas to avoid paying U.S. taxes. His amendment 
would have prevented these corporations from being able to contract 
with the new Department of Homeland Security. Why does the House of 
Representatives insist on helping those companies who make their money 
in the U.S. but then turn their backs on the U.S.? What about their 
responsibility to the U.S.?
  This legislation also provides immunity from liability for 
manufacturers of products or technologies that harm Americans. Why did 
the House think it's important to protect companies that are grossly 
negligent, and how does this improve the security of Americans?
  Another special interest provision would provide liability protection 
for pharmaceutical companies that are being sued for using vaccine 
preservatives that some people believe have

[[Page S11430]]

caused autism. This should be decided by scientists and the courts: not 
by Members of the House of Representatives trying to sneak unrelated 
provisions into a bill on homeland security. The list of special 
interest pay backs goes on and on.
  I strongly oppose the provisions of this bill that limit the rights 
of Federal employees, as well as the administration's plan to privatize 
much of the Federal workforce. I will continue to fight these 
proposals. I'm also disappointed that the House Republicans have used 
the need for homeland security to sneak so many special interest give 
backs into the bill.
  Yet despite the serious problems with this bill, I will vote for it 
because it will enable our government to better detect, prevent and 
respond to terrorism. Nothing the Senate does is more important than 
providing security for America. That is why I will vote to create the 
Department of Homeland Security--for America's national security.
  I'm tired of the cynical manipulation of the legislative process. I'm 
tired of the politicization of something as important as Homeland 
Security. I hope this is the last time that an issue of national 
security is politicized. Let's put these politics and hard feelings 
behind us. Let us get our act together, and let's show America we can 
govern. Let's show the bullies of the world we're willing to take them 
  Mr. McCAIN. Madam President, I strongly support the creation of the 
Department of Homeland Security. I am a cosponsor of the Gramm-Miller 
substitute and the President's proposal, and have consistently voted to 
overcome Democratic roadblocks to create a Homeland Security 
Department. I want this legislation to be enacted, but the House-passed 
bill includes a number of egregious special interest riders that should 
not be part of this landmark measure.
  If the legislative process had allowed us an opportunity to vote on 
many of the provisions Senators Daschle and Lieberman are now seeking 
to strike, I believe most of them would have been rejected. 
Unfortunately, we now find ourselves in a ``take it or leave it'' 
situation. This is an artificial and unnecessary construct. The 
Homeland Security legislation effectuates the most dramatic 
restructuring of the Federal Government in half a century. With the 
goal of safeguarding our citizens, it creates a 170,000-person cabinet-
level department that encompasses almost every governmental function 
that contributes to protecting Americans against terrorism in the 
United States. That the Senate is being told that the House will 
effectively kill the entire bill if this body dare remove politically 
motivated riders signals to me that the other chamber's priorities have 
become grossly confused.
  I do not approach this vote lightly, but I must vote my conscience, 
just as each of my colleagues must do. I sincerely hope that upon 
resolution of the vote, we can move forward expeditiously with the 
House to resolve the differences and still send a bill to the President 
by the end of the week.
  The Daschle-Lieberman amendment would strike seven special interest 
provisions that were included in this 484- page bill by the House.
  Texas A&M: among them, the amendment proposes to strike a provision 
that many believe is designed to provide an earmark for Texas A&M 
University. Specifically, the House-passed bill requires the Secretary 
to designate a university-based center or centers for homeland 
security. However, the bill further stipulates 15 specific criteria to 
be used in making this designation, criteria that many suspect are 
tailored to describe only one university--Texas A&M. While the 
provision allows the Secretary to expand the criteria, it doesn't 
permit the Secretary to eliminate or alter the 15 criteria set forth in 
the bill.
  How many colleges have ``strong affiliations with animal and plant 
diagnostic laboratories, expertise in water and wastewater operations, 
and demonstrated expertise in port and waterway security,'' not to 
mention 12 other requirements?
  I have long opposed attempts in Congress to by-pass competitive, 
merit-based selection processes. There is absolutely no justification 
for attempting to do so in the Homeland Security bill for a function as 
important as the one to be fulfilled by the university-based centers.
  The Safety Act: the Daschle-Lieberman amendment strikes a provision 
in the House-passed bill titled ``The SAFETY Act'', which purports to 
provide reasonable liability protections for antiterrorism technologies 
that would not be deployed in the absence of these protections.
  I believe that real harm has been inflicted on our economy by trial 
attorneys' abuse of our tort system. I have seen the unfathomable greed 
of certain attorneys who use ``consumer protection'' as an excuse to 
extort billions of dollars from corporations, and ultimately, the same 
consumers they claim to protect. Outrageous awards that may benefit 
only the lawyers have stifled innovation, kept products off the market, 
and hurt consumers.
  As chairman of the Commerce Committee, I have advanced legislation to 
reform products liability litigation, and overseen the enactment of a 
law to limit litigation and damages that might have arisen from the Y2K 
bug. Despite its potential to kill the bill because of opposition from 
trial lawyers, I voted to cap attorneys' fees on the comprehensive 
tobacco legislation that I sponsored. I am appalled that the demise of 
that bill opened the door for a private settlement under which a 
handful of lawyers have received literally billions of dollars, and I 
intend to ensure that these fees are closely examined in the Commerce 
Committee next year. In addition, I have repeatedly voted for 
limitations on damages for medical malpractice.
  In short, I appreciate the need for legal reform and have long 
supported it. Despite this, I cannot support the ``SAFETY Act'', which 
never received a hearing in either chamber, and which was inserted into 
the House Homeland Security bill late in that chamber's process when 
Members decided that the government indemnification provisions 
previously considered would be too costly.
  This ill-considered ``SAFETY Act'', which I understand is supported 
by defense contractors and others seeking liability protection, does 
not provide reasonable limitations on liability. Intentionally or not, 
it appears to eliminate all liability in tort claims against Sellers 
for the failure of any ``antiterrorism technology.'' Whereas previous 
tort reform measures have sought to limit the abuse of our system by 
avaricious lawyers, while protecting plaintiffs' rights to obtain a 
quick and reasonable award, no such balance is reflected in the 
``SAFETY Act.''
  While many of my Democratic colleagues object instinctively to 
liability limitations such as those in the SAFETY Act, including the 
creation of a Federal cause of action, the prohibition on punitive 
damages, and the requirement for proportional liability for non-
economic damages, I have supported these concepts in the past, and 
continue to support them in this context. What I find objectionable, 
however, fatally so, is that the SAFETY Act was never the subject of 
any hearing, was never considered by a committee in either chamber, 
and, perhaps as a consequence, is to confused in its wording and 
concepts as to be almost incomprehensible.
  While the need for liability protection for manufacturers and sellers 
of antiterrorism technologies may be very real, this is an issue of 
significant import that deserves more careful consideration. At a 
minimum, the SAFETY Act must be rewritten to ensure that its language 
is consistent with what I understand to be its intent. At present, it 
is not.
  One particularly troublesome provision in the SAFETY Act appears to 
transform a common law doctrine known as the ``government contractor's 
defense,'' into an absolute defense to immunize the seller of an 
antiterrorism technology of all liability. This is a dramatic departure 
from current law and one that does not seem to have been well thought-
  Currently, the ``government contractor's defense'' provides immunity 
from liability when the federal government has issued the 
specifications for a product; the product meets those specifications; 
and the manufacturer does not have any knowledge of problems with the 
product that it does not share.
  While I am told that the House advocates of the SAFETY Act did not 
intend to provide protections for products whose specifications are not

[[Page S11431]]

issued by the government, or which do not meet these specifications, 
the bill language indicates otherwise. It says ``Should a product 
liability or other lawsuit be filed for claims . . . and such claims 
result or may result in loss to the Seller, there shall be a rebuttable 
presumption that the government contractor defense applies to such 
lawsuit. This presumption shall only be overcome by evidence showing 
that the Seller acted fraudulently or with willful misconduct in 
submitting information to the Secretary during the course of the 
Secretary's consideration of such technology under this subsection.''
  What happens if the Seller submits proper information to the 
Secretary, and the Secretary certifies a technology, such as a vaccine 
or chemical detection device, but a year later there is a gross defect 
in the manufacturing process, and as a result, the product doesn't work 
and Americans are injured or killed in a terrorist attack. The language 
in the bill suggests that the Seller still is not liable. But who is? 
Can the injured victim seek compensation under the Federal Tort Claims 
Act? The SAFETY Act does not say. Should they be able to? This is one 
of many questions affecting plaintiffs that does not seem to have been 
contemplated or considered when the SAFETY Act was included on the 
House bill.
  Clearly, Congress as a whole should work to address the legitimate 
liability concerns that may be keeping protective technology off the 
market. We should do this, however, thoughtfully, if swiftly, and 
ensure that the language reflects our considered intent.
  Prohibition on Contracts with Corporate Expatriates: the Homeland 
Security bill prohibits the Secretary from contracting with any 
``inverted domestic corporation'', which is an American corporation 
that has reincorporated overseas. More and more U.S. companies are 
using this highly profitable accounting scheme that allows a company to 
move its legal residence to offshore tax havens such as Bermuda, where 
there is no corporate income tax, and shield its profits from taxes.
  I applaud efforts to discourage this practice. Already, at least 25 
major corporations have reincorporated or established themselves in 
Bermuda or the Cayman Islands in the past decade. Although I understand 
that American tax policy has encouraged them to do so, corporations 
that have moved their legal headquarters offshore to avoid taxes give 
the appearance of ingratitude to the country whose sons and daughters 
are risking their lives today to defend them.
  This provision, however, has not escaped untouched by special 
interests. Although the Senate adopted an amendment offered by the late 
Senator Wellstone that flatly barred the Secretary of Homeland Security 
from contracting with inverted domestic corporations unless doing so 
was in the interest of national security, the measure being offered to 
us on a ``take it or leave it'' basis contains loopholes you could 
drive a truck through or an entire fleet of trucks to be supplied by a 
relocated corporation. Although it generally prohibits the Secretary 
from entering into contracts with inverted domestic corporations, the 
House-passed measure allows the Secretary to waive this prohibition in 
the interest of homeland security, or to ``to prevent the loss of any 
jobs in the United States or prevent the Government from incurring any 
additional costs that otherwise would not occur.''
  The Daschle-Lieberman amendment tightens this loophole by permitting 
the Secretary to waive the contracting limitation only in the interest 
of homeland security. That is what this bill is about, it is not a jobs 
bill, or a fiscal belt-tightening bill. The Senate determined, in 
adopting the Wellstone amendment, that it was important to stop more 
corporations from adopting corporate ``flags of convenience.'' We 
should honor this.
  Childhood Vaccines: among the most inappropriate provisions that the 
Daschle-Lieberman amendment strikes is a modification to the Childhood 
Vaccine Injury Act of 1986. The language included in the House-passed 
bill has far-reaching consequences and is wholly unrelated to the 
stated goals of this legislation. Inserted without debate in either 
chamber, this language will primarily benefit large brand name 
pharmaceutical companies which produce additives to children's vaccines 
with substantial benefit to one company in particular. It has no 
bearing whatsoever on domestic security.
  The National Vaccine Injury Compensation, VIC, Program, established 
under the Childhood Vaccine Injury Act of 1986, set up a no-fault 
compensation program as an alternative to legal action to compensate 
children injured or killed by a vaccine. The VIC Program was adopted in 
response to a flood of plaintiffs' suits in the early 1980s which 
ravaged the vaccine industry. Incentives, such as limitations on 
damages, were established to encourage manufacturers to continue to 
produce safer vaccines, while education programs and an adverse 
reaction reporting system were established to ensure prevention of 
future vaccine injuries.
  The 1986 law did not define ``vaccine,'' and suits emerged between 
families and manufacturers of vaccine additives, many of which are 
still ongoing. The language contained within the House-passed Homeland 
Security Act would modify the definition of a ``vaccine'' to include 
additives. Originally contained within a well-rounded bill written by 
my friend, Senator Frist, this language served a sound purpose. 
However, I am concerned that the passage of these select provisions 
which benefit pharmaceutical manufacturers will eliminate the incentive 
to continue negotiations on the important reforms within Senator 
Frist's bill which has been negotiated in the HELP Committee for close 
to a year. Additionally, unlike the bill in Committee, this language 
would intervene in ongoing litigation without modifying the statute of 
limitations for bringing a claim under the Vaccine Act, and in so 
doing, would leave families of some injured children with no available 
  As I stated earlier, I am not opposed to reasonable legal reform. I 
support a comprehensive reform package such as the bill sponsored by 
Senator Frist, and hope that such a measure will pass early in the next 
Congress. It is wrong, however, to cherry pick provisions beneficial to 
industry and insert them in a Homeland Security bill and to leave for 
another day those provisions that protect children.
  Special interests have no place in any congressional action, least of 
all one of this magnitude. For this reason, I am compelled to support 
the Daschle-Lieberman amendment. This administration has worked 
tirelessly with the House and Senate to produce an extraordinary 
restructuring of Government to better protect the American people. They 
have accomplished an amazing feat. Legislation of this gravity should 
not be sullied by a few special interest riders. I urge my colleagues 
to join me in striking them.
  Mrs. FEINSTEIN. Madam President, today I voted for the Thompson 
substitute amendment to the Homeland Security Act--the largest 
restructuring of the Federal Government in over 50 years and perhaps 
the most important legislation considered in this Congress.
  This historic legislation would create a new department combining 
some 22 Federal agencies with what would amount to about 200,000 
Federal employees.
  The bill would create one of the biggest departments in the U.S. 
Government, with an initial annual budget of at least $37 billion.
  I voted for this legislation because our current terrorism policy is 
terribly disjointed and fragmented. I have long supported additional 
efforts to consolidate and coordinate our terrorism policy.
  Currently, homeland security functions are scattered among more than 
100 different Government organizations. There is much unnecessary 
overlap and duplication. There is also a failure to communicate and 
share information--making it hard to for the law enforcement and 
intelligence community to ``connect the dots'' to prevent a terrorist 
  I also voted for the bill because I believe our country is currently 
at great risk. Terrorists are doing all they can to launch a 
catastrophic attack on our homeland.
  The status quo is simply unacceptable. For example, just last week, I 
chaired a subcommittee hearing on a new report from released by 
Senators Hart and Rudman.

[[Page S11432]]

  Their report is chilling--and its conclusion distributing. It reads:

       A year after September 11th, America remains dangerously 
     unprepared to prevent and respond to a catastrophic terrorist 
     attack on U.S. soil. In all likelihood, the next attack will 
     result in even greater casualties and widespread disruption 
     to American lives and the economy.

  The creation of a Homeland Security Department is critical to our 
efforts to try to prevent another devastating terrorist attack against 
  Now, for the first time in our history, this Nation will have one 
Federal agency charged with the primary mission of preventing terrorist 
attacks within the United States, reducing the vulnerability of the 
U.S. to terrorism at home, and minimizing damage and assisting in the 
recovery from any attacks that may occur.
  The new department will have four major divisions: border 
transportation and security, emergency preparedness and response, 
science and technology, and information analysis and infrastructure 

  The border directorate will include a number of key homeland security 
agencies, including Customs and the Transportation Security Agency.
  The emergency preparedness directorate will include FEMA and some 
other smaller response agencies.
  The science directorate will include a number of programs and 
activities of the Department of Energy, Department of Agriculture, and 
some agencies.
  The information analysis directorate will synthesize and analyze 
homeland security information from intelligence and land enforcement 
agencies throughout the government.
  This crucial division will identify and assess terrorist threats and 
vulnerabilities, issue warnings, and act to prevent terrorist acts 
against critical infrastructures such as bridges, dams, and electric 
power grids.
  Other agencies such as the Coast Guard and Secret Service will be 
moved to the new department, and there will be an office to coordinate 
with state and local governments. The legislation also creates a 
Homeland Security Council in the White House to coordinate the domestic 
response to terrorist threats.
  I am very pleased that this legislation does not neglect State and 
local law enforcement and first responders. No homeland security 
solution can be just federal. The reality is the 650,000 State and 
local law enforcement officers are additional eyes and ears in the war 
on terrorism. They cannot operate deaf, dumb, and blind.
  Moreover, in the event of a terrorist attack, the first people on the 
scene will be local firefighters, emergency medical technicians, 
National Guardsman, and other people in the local community. The need 
proper information, organization, training, and equipment.
  Thus, I am pleased that this legislation includes a measure I 
introduced to increase state and local access to federally collected 
terrorism information.
  This legislation directs the President to establish procedures for 
sharing homeland security information with state and local officials, 
ensures that our current information sharing systems and computers are 
capable of sharing such information, and increases communications 
between government officials.
  The bill also includes a broad exemption under the Freedom of 
Information Act for cybercrime and cyberterrorism information. This 
exemption will encourage the private companies that opoerate over 85 
percent of our critical infrastructure to share information about 
computer break-ins with law enforcement--so criminals and terrorists 
can be stopped before they strike again and severely punished. I have 
long advocated for such an exemption, and am pleased that it ended up 
in the final bill.
  While I strongly support the creation of a Homeland Security 
Department, I am disappointed that the bill we passed today includes a 
number of extraneous special interest provisions and lacks language to 
ensure appropriate oversight and transparency.
  In addition, there is nothing in this legislation addressing what is 
perhaps the most pressing homeland security problem we face today: the 
vulnerability of our ports to terrorism.
  The issue of port security was left to separate legislation that was 
passed last Thursday. In my view, that legislation does not go far 
enough. I believe that Congress needs to return to this issue next year 
and pass more comprehensive legislation.
  The Hart-Rudman Independent Terrorism Task Force, for example, 
recently issued a report describing major holes in the security of our 
ports and endorsed such a comprehensive, layered approach.
  This new comprehensive legislation would be based on S. 2895, the 
Comprehensive Seaport and Container Security Act of 2002, which I 
introduced last summer with Senators, Kyl, Hutchinson, and Snowe.
  The Comprehensive Seaport and Container Security Act of 2002 is the 
result of hearings we have had in the Technology, Terrorism, and 
Government Information Subcommittee of the Senate Judiciary Committee 
as well as my testimony two years ago to the Interagency Commission on 
Crime and Security in U.S. Seaports.
  The main section in the bill would create a Container Profiling Plan 
that would focus our nation's limited inspection resources on high-risk 
  In addition, the bill also contains provisions requiring: earlier and 
more detailed container information; comprehensive radiation detection; 
heightened container security measures--including high-security seals; 
restricted access to ports; increased safety for sensitive port 
information; enhanced inspection of cargo at foreign facilities; 
stronger penalties for incorrect cargo information; improved crime data 
collection; upgraded Customs service facilities; and better regulation 
of ocean transport intermediaries.
  Unfortunately, we were not able to get much of this Bill included in 
the conference legislation that passed last week. Indeed, the 
Conference Bill even omits a number of security provisions included in 
S. 1214 as it passed the Senate.
  That is why, in my view, we will need to revisit this issue early in 
the 108th Congress. I plan to work with my colleagues to fine-tune my 
legislation and reintroduce it. I hope that my colleagues will support 

  I am also disappointed with this bill because it does not contain the 
entire ``Unaccompanied Child Protection Act,'' bipartisan legislation I 
introduced at the beginning of this Congress and that was included as 
Title XII of the Lieberman substitute to H.R. 5005.
  I have spoken on this issue in some detail already, but feel 
compelled to reiterate a few points.
  Last year, over 5300 children came to this country unaccompanied by a 
parent or guardian and were held by the INS, many of them in detention 
facilities. these children have no rights. Many of them can't speak 
English, they can be detained for years, they have no resort to 
counsel, and they don't understand the process.
  We all remember the Elian Gonzalez case. Every year, there are 
thousands of Elians. But unlike Elian, these children have no family 
members to help them navigate the immigration process. They are 
completely at the mercy of a complex bureaucratic and legal system they 
cannot begin to understand.
  The good news is that this bill transfers authority over the care and 
custody of unaccompanied alien children from the INS to the Office of 
Refugee Resettlement within the Department of Health and Human 
  The bad news is that almost all the ``help'' provisions for these 
children are left out. This bill is lacking because it does not provide 
either for a guardian ad litem, or pro bono legal assistance.
  This is insufficient, and it is my full intention to reintroduce 
legislation in the next session to redress this, and to include pro 
bono counsel and guardian ad litem provisions.
  Protecting children, on the one hand, must not prevent us from 
devising an immigration policy that protects us from those that would 
do America harm.
  We do not want to burden the Secretary of Homeland Security with 
policy issues unrelated to the threat of terrorism. The Department will 
have a daunting mission as it is, and must never lose that focus.
  Two positive steps regarding immigration include the transfer of the 
visa issuance process from the State Department to the Department of 
Homeland Security, thereby giving it the

[[Page S11433]]

regulatory and oversight authority over issuances and denials.
  It also prohibits third-party visa processing, referred to as ``Visa 
Express'', to ensure closer scrutiny of visa applications and to 
preserve the integrity of the visa issuance process. These reforms are 
  Overall, while this legislation's shortcomings cause me serious 
concern, I believe that they pale in comparison to the dangers facing 
America, both immediately and in the long-term, at home and abroad.
  The terrorist threat to the United States is far too real, and in our 
freedom-loving country we must now do everything we can to protect our 
  And this, after all, is the Federal Government's paramount task--
protecting our citizens. Further delay in creating a Department of 
Homeland Security would only leave us increasingly vulnerable--and this 
is something we simply cannot afford.
  Ms. SNOWE. Madam President, I rise today in support of this 
bipartisan legislation creating a new Department of Homeland Security.
  Since the horrific terrorist attacks of September 11, we have acted 
to increase our efforts to counter terrorism by strengthening borders, 
improving information sharing among agencies, and giving our law 
enforcement agencies the legal tools to investigate and prosecute 
terrorists and those that help terrorists financially.
  Congress has considered and passed both the USA PATRIOT Act and the 
Enhanced Border Security and Visa Entry Reform Act which have both 
changed laws to ensure that providing for our national security in 
order to prevent future terrorist attacks is a top priority. This bill 
also ensures that the 22 agencies with a substantial role in protecting 
our homeland have the materials and resources they require.
  This legislation is recognition that homeland security has taken on 
an entirely new meaning since 9/11. What was once a concern with 
terrorists acting against U.S. interests overseas has been realized and 
expanded to include those same acts happening right here at home. The 
war has been brought to the U.S. and we are now rising to the 
  This was precisely the type of thinking demonstrated by President 
Bush in the summer of 2001, when he instructed the intelligence 
community to provide an assessment of the threat posed by al-Qaida 
domestically rather than overseas. And President Bush did exactly the 
right thing in the wake of last year's horrific attacks when he 
established the Office of Homeland Security, now headed by Governor 
Ridge, to coordinate counter-terrorism activities by the various U.S. 
agencies and departments as well as develop an overall strategy. This 
strategy has culminated in the proposal of a new Department of Homeland 
  As the principal advisor to the President on homeland security 
issues, the service of Governor Ridge has been exemplary. The time has 
come, however, for the perpetuity of purpose ensured by statutory 
status for a new Department of Homeland Security.
  A Department responsible for safeguarding our homeland defense must 
not be dependent solely on the relationship between a particular 
President and his or her Homeland Security director. Rather, it must be 
run as efficiently and effectively as possible under the leadership of 
a permanent, cabinet level official. That is the only way to achieve 
the kind of ``continuity of urgency'' the security of our homeland 
  The fact of the matter is, we cannot afford a descent into 
complacency when it comes to this life-or-death obligation to protect 
the American people. If ever there were a Federal responsibility, this 
is it.
  And while my fervent hope and prayer is that we do not suffer another 
attack on or anywhere near the scale of 9/11, the reality is that, 
absent future tragedies and absent a cabinet-level homeland security 
department, we don't know what kind of attention the issue will receive 
5, 10, 20 years down the road. Because the tendency is to focus on the 
most visible, pressing issues of the day, but we cannot allow ourselves 
to let down our guard, not for a moment, not a decade from now, not a 
quarter century from now, never.
  So this initiative is not a knee-jerk reaction. It is not a passing 
whim--far from it. There is no serious debate about the fact that we 
are now in a new age that will not quickly pass. The threat will be 
pervasive, and enduring. The level of our vigilance must be equally so.
  Under a new cabinet-level department, responsibility would rest with 
a Secretary of Homeland Security, a position created under law, who 
would manage the vital day-to-day functioning of the new department. 
Critically, this person would have their own budget, while they work 
closely with the administration to develop and implement policy. It is 
vital that this budgetary authority be granted--otherwise, the 
department will become a paper tiger, without the teeth that we all 
know a separate budget provides in terms of authority as well as the 
ability to get things done.
  The bottom line is, I support the creation of the Department of 
Homeland Security--the largest re-organization of our Government since 
WWII--because it will centralize our efforts to prevent and respond to 
any future terrorist attack.
  Currently, at least 22 agencies and departments play a direct role in 
homeland security, encompassing over 170,000 people. This legislation 
consolidates these various responsibilities into one Department which 
will oversee border security, critical infrastructure protection, and 
emergency preparedness and response.
  Overall, the new Department, with the Secretary's leadership, will 
integrate the vast number of government agencies that formulate, 
support and carry out the functions critical to homeland security such 
as the border patrol, the Transportation Security Administration, TSA, 
and the Federal Emergency Management Agency, FEMA.
  This new and dynamic Department will utilize all tools and resources 
of our Government to enhance our homeland security by strengthening and 
augmenting the preparation, communication, coordination and cooperation 
of not only the agencies that will be included, but the rest of the 
government including States and localities.
  First, it is important to keep in mind that the functions of many of 
the agencies that will soon become a part of the new Homeland Security 
Department are integrated so that dividing them would be detrimental to 
the purpose of that agency, many of which have non-homeland security 
  For example, as a member of the Finance Committee, I shared the 
concerns raised by other members of the committee about any division of 
the Customs Service when it relocates to the new Department. I 
supported the Finance Committee's position that Customs move into 
Homeland Security but that the Secretary of the Treasury maintain the 
legal authority to issue regulations relating to the customs revenue 
  Defending the country's borders and facilitating legitimate trade are 
intertwined functions that should not be separated. By moving Customs 
in its entirety into the Border and Transportation Directorate, this 
legislation recognizes that the personnel who perform trade enforcement 
and compliance activities at the border are the same personnel who 
perform inspections for security and other enforcement purposes. In 
addition, the information Customs receives from trade compliance 
examinations and manifests is the same information used to assess 
security risks for shipments. This information is the cornerstone of 
many of Custom's counter-terrorism efforts.

  This bill also maintains a cohesive and complete Border and 
Transportation Security Directorate by transferring all key border and 
transportation security agencies to this directorate, including the 
Coast Guard, Customs, and TSA. This includes the Border Patrol and a 
restructured INS which is not included in the Lieberman bill where it 
is part of a separate Immigration Directorate. Thus, the Directorate 
responsible for border security is not responsible for the Border 
Patrol or inspecting aliens arriving at ports of entry.
  The same is true for the Coast Guard. Since the terrorist attacks of 
September 11, the Coast Guard has conducted its largest port security 
operation since World War II to protect and defend our ports and 
waterways. But this significant amount of effort is simply not enough.

[[Page S11434]]

  The Coast Guard needs to be positioned with the other transportation 
and border security agencies if we are going to improve interagency 
coordination, maximize the effectiveness of our resources, and ensure 
the Coast Guard receives the intelligence it needs. I strongly believe 
the Coast Guard is an outstanding role model for Homeland Security and 
will serve as a cornerstone upon which this new Department will be 
  At the same time, these new priorities must not diminish the Coast 
Guard's focus on its other traditional missions such as marine safety, 
search and rescue, aids to navigation, fisheries law enforcement, and 
marine environmental protection which are all critically important.
  The legislative solution I developed with Senators Stevens and 
Collins, that is included in the bill, strikes the proper balance and 
ensures the Coast Guard's non-Homeland Security missions will not be 
compromised by the transfer.
  To the contrary, our language maintains the primacy of the Coast 
Guard's diverse missions by assuring the Coast Guard Commandant will 
report to the new Secretary of Homeland Security, rather than to a 
deputy secretary; assures no Coast Guard personnel or assets will be 
transferred to another agency; and provides a mechanism to annually 
audit the Coast Guard's performance of its non-homeland security 
  I am pleased to see the inclusion of my amendment requiring the 
administration to report to Congress within 90 days outlining the 
benefits of accelerating the Coast Guard's Deepwater procurement 
timeline from 20 years to 10. The Deepwater project, which will 
recapitalize all of the Coast Guard assets used off of our coast, is 
already underway. However, the Coast Guard must wait up to 20 years, in 
some instances, to acquire already existing technology. We must 
accelerate the Deepwater acquisition project and acquire much needed 
assets for the Coast Guard now, not 20 years down the road.
  Of course, securing our homeland requires that we figuratively ``push 
out our borders'' as far as possible, and that means we must consider 
the issuance of visas at our overseas embassies as another vital area 
to be addressed by legislation. After all, consular officers represent 
the first line of defense against terrorists seeking entry to the U.S. 
Entering the U.S. is a privilege, not a right, and this must be the 
attitude of those reviewing visa applications.
  That is why I am pleased that this bill grants the Department of 
Homeland Security the authority to determine regulations for issuing 
visas and provides Homeland Security supervision of this process 
through the stationing of Homeland Security Department personnel in 
diplomatic and consular posts abroad.
  This legislation also builds on a provision I included in the 
Enhanced Border Security and Visa Entry Reform Act establishing 
Terrorist Lookout Committees. These committees, comprised of law 
enforcement and intelligence agency personnel in our embassies, meet 
once a month to discuss names of terrorists or potential terrorists to 
be added to the lookout list. The inclusion of Homeland Security 
personnel to the Terrorist Lookout Committees will ensure that our 
first line of defense also has the input of this new Department.
  I introduced Terrorist Lookout Committee legislation in 1995 as part 
of my efforts to strengthen our borders and increase information 
sharing. This, and legislation I introduced to modernize the State 
Department's antiquated microfiche lookout system, were a result of a 
trail of errors by our agencies with regard to Sheikh Rahman, the 
radical Egyptian cleric and mastermind of the 1993 World Trade Center 
  In working on terrorism and embassy security issues on the House 
Foreign Affairs International Operations Subcommittee, what we 
discovered was startling. We found that the Sheikh had entered and 
exited the country five times totally unimpeded, even after the State 
Department formally revoked his visa and even after the INS granted him 
permanent resident status. In fact, in March of 1992, the INS rescinded 
that status which was granted in Newark, New Jersey about a year 
  But then, unbelievably, the Sheikh requested asylum in a hearing 
before an immigration judge in the very same city, got a second hearing 
and continued to remain in the country even after the bombing with the 
Justice Department rejecting holding Rahman in custody pending the 
outcome of deportation proceedings and the asylum application, stating 
that ``in the absence of concrete evidence that Rahman is participating 
in or involved in planning acts of terrorism, the assumption of that 
burden, upon the U.S. government, is considered unwarranted.''
  Securing our visa process is the reason why legislation I have 
introduced that requires the new Department to conduct a national 
security study of the use of foreign nationals in handling and 
processing visas has been included in this bill.
  As was shown in Qatar this summer, foreign nationals handling visas 
are entrusted with a great responsibility and we must make sure that 
does not compromise our security. For instance, in July it was 
discovered that several foreign employees at the U.S. Embassy in Qatar 
may have been involved in a bribery scheme that allowed 71 Middle 
Eastern men, some with possible ties to al-Qaida, to obtain U.S. visas.
  To strengthen security, my provision requires the Department of 
Homeland Security to review the specific role that foreign nationals 
play in handling visas and determine the security impact this has at 
each overseas mission and make recommendations as to the role foreign 
national should have with regard to visas.
  On this same note, I am also pleased that another provision of mine 
to stop ``visa shopping'', the practice of a foreign national traveling 
to different U.S. Embassies in order to find one that will grant a 
visa, has also been included in this bill.

  Now, current State Department regulations calling on consular 
officers to enter a visa denial into the lookout list database so it 
can be accessed by other Embassies will be codified in law. Seeing that 
a foreign national has traveled to another Embassy and been denied will 
make the decision of a consular officer on whether to grant a visa that 
much simpler.
  Ensuring that the new Department has its own capabilities to analyze 
intelligence is critical to the functioning of the Directorate of 
Information Analysis and Infrastructure Protection. The Directorate 
will be responsible for accessing, receiving, and analyzing information 
such as intelligence, law enforcement and other information from 
agencies from Federal, State and local governments to detect and 
identify threats to homeland security. The legislation also will ensure 
that threat analysis, vulnerability assessments, and risk assessments 
is the responsibility of one Directorate.
  Also, the bill contains specific language authorizing the Secretary 
to provide a staff of analysts with ``appropriate expertise and 
experience'' to assist the Directorate in reviewing and analyzing 
intelligence as well as making recommendations for improvements. 
Moreover, the legislation contains specific language I advocated 
authorizing the Department to hire its own analysts.
  It is vital that clear language be included to ensure that the new 
Department has its own people and does not rely solely on detailees 
from other agencies. The bill also permits the new Department to have 
personnel detailed for analytical duties from the intelligence 
community. It is clear that in the beginning, intelligence analysts 
will have to be detailees from other agencies until additional people 
can be fully trained. However, this must not be a permanent situation. 
That is why I worked with Senator Gramm to ensure the new Department 
has its own intelligence analysts.
  Finally, one of the most challenging hurdles to overcome in passing 
this legislation was a provision of law that has been in statute for 
almost a quarter-century. This provision referred to as the President's 
``national security exclusion authority'' allows the President to 
exclude agencies, or smaller subdivisions within agencies, from 
collective bargaining agreements if he determines that the agency or 
subdivision as a primary function intelligence, counterintelligence, 
investigative or national security work.
  During this debate, attempts to rescind the President's authority 

[[Page S11435]]

has been in place since President Kennedy first allowed Federal 
employees to unionize in 1962 and put into statute by President Carter 
in 1978 stalled the consideration of the entire bill. I am pleased, 
however, that both sides were ultimately able to come together to find 
a workable solution that allows the President to maintain the national 
security exclusion authority that every President has had since 
President Kennedy.
  Once again, the President was right to create a new Department of 
Homeland Security and I applaud the efforts of Governor Ridge to 
formulate this proposal and present it to Congress. We need to come to 
grips with the reality that a repeat attack could happen at any time 
and, accordingly, not only work to prevent it but also be prepared to 
respond. The new Department of Homeland Security will bring us closer 
to bringing all of our Nation's resources to bear in securing our 
  This defining time, as the President has stressed, requires constant 
vigilance as our permanent condition. Because in our war against 
terrorism, to quote Churchill, ``Now is not the end. It is not even the 
beginning of the end. But it is, perhaps, the end of the beginning.'' 
We have now begun a ``new normalcy'' and we can never again let down 
our guard. We owe taking this historic step to the American people and 
to future generations of Americans to ensure an enduring level of 
  Mrs. BOXER. Madam President, there is not a person in this Chamber 
who questions the importance of homeland security or the need to 
improve the Federal Government's ability to protect our people from 
terrorism. We all saw what happened on September 11th of last year: 
There was not enough anticipation or coordination, and not enough 
accountability. We can and must do better.
  What happened last September 11th was a tragedy on a monumental 
scale. It is a date that we will always remember. It is an anniversary 
that we will always somberly commemorate.
  But, as I have said before, we must learn from the tragedy of 
September 11th and ensure that our Nation is never again subjected to 
such horror. The events of that dark day should spur us to take the 
necessary steps to establish the instruments and institutions that will 
provide real protection for the American people. The lessons of 
September 11th will mean little if we are unable to craft a concrete 
response to terrorism that demonstrates our unwavering resolve to those 
who would do us harm.
  Since shortly after September 11, I have argued that we needed a 
Cabinet-level Department to address these concerns. That is why, I have 
decided to vote for the legislation now before the Senate.
  We are faced with the choice of either this bill or no bill. And I 
believe that we must move the process forward, and send the all-
important message to the people we represent that we are serious about 
protecting them that we are serious about having better cooperation, 
coordination, and preparation in the fight against terrorism.
  That is not to say that I do not have reservations. This bill should 
have been written differently. I supported an amendment proposed by 
Senator Byrd that would have made the new department less bureaucratic 
and would have provided more accountability, not less. It also would 
have ensured that Congress played a greater role as the department got 
up and running. Unfortunately, the Byrd amendment was defeated.
  I was also shocked to see that several special interest riders were 
added to this bill at the last minute, in the dark of night. I am 
especially troubled by the new provision that holds harmless any 
company that makes mercury-based preservatives for vaccines. One 
example is Thimerosal, which, evidence shows, may be responsible for 
causing autism in children.
  What in the world does such a provision have to do with homeland 
security? I believe this provision will create insecurity in our 
homeland by sending a message to thousands and thousands of families 
that their children's health takes a distant second place to the 
interests of large corporations. This bill should be about homeland 
security, not family insecurity.
  With one call from the White House, these special interest additions 
to the bill could have been eliminated. But that did not happen, and 
the Daschle amendment to strip them from the bill, which I strongly 
supported, was defeated. As a result, this bill has been perverted from 
its original meaning and intent. I expect to work with my colleagues 
next year to reverse these special interest riders.
  I am troubled by this bill's treatment of the new department's 
workers. It gives the President virtually unfettered authority to strip 
even the most minimal worker protections affecting everything from job 
classification, pay rates, rules for labor management relations, and 
the process for firing and demoting employees. These provisions were 
unnecessary and unfair.
  Finally, I am concerned about the effect this legislation will have 
on my State of California on matters that have nothing to do with 
homeland security. Many existing Federal agencies will be moved lock, 
stock and barrel into this new department, with little regard to the 
services that those agencies provide to the American people and to the 
people of California. The Department of Homeland Security is largely 
about protection and enforcement. When vital services for the people of 
this country such as FEMA disaster assistance and the Coast Guard's 
search and rescue role are thrown into an agency whose mission and 
purpose is primarily enforcement, I fear that these much-needed 
services will suffer.
  However, despite these reservations, I will vote for this bill. We 
must move forward on protecting the American people from another 
possible terrorist attack. And creating a new Cabinet-level Department 
of Homeland Security, which I have supported for the past year, is an 
important step in that direction.
  Through my committee assignments and by enlisting the support of my 
colleagues, I will keep a sharp eye on the new Department of Homeland 
Security and work to make sure we take the additional steps necessary 
to truly protect the security of the American people.
  Mr. GRASSLEY. Mr. President, I rise in support of the homeland 
security bill. I believe that today we are taking definitive action to 
put the Government in a better position to prevent and respond to acts 
of terrorism. The creation of a Department to oversee homeland security 
has been a tremendous undertaking for the White House and Congress. It 
has forced all of us to face multiple challenges, including overcoming 
the various agencies' desire for self-preservation and the longstanding 
turf battles we are all too familiar with. Regardless of these 
difficulties, we have no choice but to strengthen our national 
security. A Department of Homeland Security is our best answer, and I 
have tried to do all that I could to enhance the effectiveness of the 
New Department.
  This new Department will have to improve and coordinate our 
intelligence analysis and sharing functions, as well as our law 
enforcement efforts. Our Nation needs to do everything possible to make 
sure the attacks of a year ago never happen on American soil again. The 
creation of the Department will help coordinate our homeland security 
efforts and better protect the United States from terrorist attack.
  The new Department will also identify and destroy barriers to 
effective communication and cooperation between the many entities 
involved in America's national security. It will identify our security 
and intelligence shortcomings and resolve them appropriately. It should 
also guarantee that the various infrastructure protection agencies 
moving to it have a smooth and seamless transition, and that whistle 
protections are given to each and every employee, without exception.
  I was glad to have an opportunity to work with the sponsors of the 
bill to secure adequate whistleblower rights for Department employees. 
Because rights are worthless unless you have a process by which those 
rights can be addressed, I worked with the sponsors to ensure that 
whistleblowers have procedural remedies. The bill's whistleblower 
protection language grants the Department's employees the same 
Whistleblower Protection Act rights that are currently enjoyed by 
almost all other Federal employees.

[[Page S11436]]

  Another big part of (the homeland security bill includes provision to 
restructure the Immigration and Naturalization Service. The new 
Department will be instrumental in securing our border, but we will 
have to steadily implement changes to improve the agency's service and 
enforcement functions. Improvements to this agency are long overdue and 
cannot be ignored after this bill passes. Just because we have 
streamlined their management, the INS's performance will be scrutinized 
in the years to come. The INS will be accountable to the American 
people, and I look forward to seeing some changes in the way they do 
their business.
  I am pleased that I was able to work on an immigration reform measure 
that will strengthen the Secretary's visa issuance powers. This 
provision authorizes the DHS Secretary to put DHS agents at consular 
posts or requires a finding that DHS agents aren't needed, and it gives 
the DHS Secretary influence in the State Department personnel matters 
relating to visa issuance. It also requires annual reports to the 
Congress on security issues at each consular post. These changes will 
help us avoid dangerous programs like visa express that let terrorists 
in without any real screening.
  I am also pleased that the homeland security bill we are considering 
today incorporates a number of our recommendations to ensure that the 
international trade functions of the Customs Service are not subsumed 
by the need for strong law enforcement under the Department of Homeland 
Security. In order to achieve this, we included a number of procedural 
protections. However, even with these safeguards, I am somewhat 
concerned that an attitude could prevail over time in which the trade 
function of the Customs Service become nothing more than a tool for the 
enforcement functions. I do not think this is an insignificant concern. 
Today, Customs operates under the umbrella of the Treasury Department, 
whose core mission it is to serve as a steward of the economy. Moving 
the 200 year old agency to Homeland Security could fundamentally alter 
the traditional mission and culture of the U.S. Customs Service. As the 
ranking member of the Finance Committee, I plan to exercise my 
oversight function diligently to make sure that this does not happen.

  Another provision that I worked hard to secure, along with Senator 
Herb Kohl of Wisconsin, is the transfer of ATF agents to the Justice 
Department. The firearms and explosives experts will work alongside the 
FBI and the DEA at Justice Department. The firearms and explosives 
expert will work alongside the FBI and the DEA at Justice, and the 
revenue-collection experts and auditors will stay at the Treasury 
Department. This move will help coordinate criminal and antiterrorism 
investigatives at the DOJ, but will keep the ATF's revenue-collection 
duties at Treasury where they belong. So I thank the leadership for 
making sure these important changes were made.
  I also applaud the inclusion of language that I advocated requiring 
the new Secretary to appoint a senior official to be responsible for 
ensuring the adequacy of resources of drug interdiction. The smuggling, 
transportation, and financing organizations that facilitate illegal 
drug trafficking can just as easily smuggle terrorists or terror 
weapons into the United States. Many of the agencies being moved into 
the new Department were previously focused on the fight against 
narcotics. By coordinating counternarcotics policy and operations, this 
new official will ensure that our efforts to respond to future acts of 
terrorism will not come at the price of relaxing our efforts against 
the dehumanizing and painful effects of drug use on society and 
  I was also pleased to work with Senators Lott and Bennett on FOIA 
provisions that encourage the private sector to alert government 
officials about risks to our critical national infrastructures. While 
public disclosure laws such as FOIA are central to the policy of 
preserving openness in government, they sometimes serve to inhibit our 
ability to receive vitally important national security-related 
information from information from businesses that fear unwarranted loss 
of public confidence and use by competitors, criminals, and terrorists. 
This new language will strike the dedicate balance between ``sunshine'' 
in government and the responsibility that we have to collect and share 
sensitive information about infrastructure vulnerabilities in an 
atmosphere of trust and confidence.
  The ultimate goal here before us is to help our intelligence and law 
enforcement communities at being the best they can be at protecting our 
nation and the American people. But we can't build a new house with 
broken blocks. If we don't fix the problems at the various agencies 
that will make up the new Department, we won't see real homeland 
security. A lot of work has been done, and I believe we are on the 
right track. I believe this plan is indeed the answer for effective 
homeland security, now and for the future. Let's move forward from here 
and get it done.

                           Homeland Security

  Mr. CONRAD. Madam President, I will vote for the bill before us 
today, but I do so with some serious reservations.
  First, and most importantly, I do not want the American public to 
conclude that by passing this one bill we do not need to do anything 
else in order to protect our homeland. While housing such agencies as 
FEMA, the Customs Department, and the Border Patrol under one roof will 
be advantageous, especially in the long run, little in this bill goes 
the heart of what went wrong leading up to September 11. Simply put, 
our country has been plagued, and we continue to be plagued, by a 
myriad of intelligence shortcomings. We have not done an effective job 
of gathering intelligence on al Qaeda cells residing right now in our 
country, and, perhaps even more importantly, our intelligence agencies 
have not been effectively sharing intelligence with each other. We hear 
story upon story about a lack of analysts with language skills, 
outdated computer systems, and turf battles.
  And now we hear, for the first time, that the administration is 
considering the need to create a new domestic intelligence agency. We 
hear that our Nation's top national security officials met for 2 hours 
this past Veterans Day to discuss this issue. Clearly, we need a plan 
to deal with domestic terrorism surveillance and to implement systems, 
procedures, and oversight to make sure that our intelligence agencies 
are talking to each other. Unfortunately, the current bill is largely 
silent on these issues.
  Second, I have serious concerns that the administration will be 
undertaking the most massive government reorganization in over 50 years 
while we are in the middle of our war against terrorism. Osama Bin 
Laden is still at large, and just last week he threatened new attacks. 
Indeed, the administration recently has warned us about ``spectacular'' 
attacks against our country. We must take great care that this massive 
reorganization does not compromise any of our ongoing efforts in our 
campaign to protect our homeland.
  Finally, I cannot stand silent about the egregious, superfluous, 
special-interest giveaways put into this bill at the very last minute 
by the administration acting in concert with Republican leaders in the 
House and Senate, everything from shutting the courtroom doors to 
families injured by pharmaceutical companies to allowing offshore tax 
haven companies to compete for homeland security contracts.
  So while I support the bill before us today, it is certainly not a 
perfect bill. Even more importantly, our work has just begun. The 
administration now needs to ensure that in creating this massive new 
Department it does so in a way that does not compromise the vital and 
ongoing work of the agencies involved. It is also imperative that we 
fix the central problem with our Nation's homeland security defenses, 
that of the lapses in our Nation's intelligence gathering and sharing 
efforts, and that we do so now. I wish we would have dealt with this 
more gaping security hole first, but all we can do now is to redouble 
our efforts in this most vital pursuit.
  Mrs. MURRAY. Madam President, the Senate today took an important step 
to combat domestic terrorism and improve safety at home. The Department 
of Homeland Security will help protect our communities by coordinating 
prevention and response efforts throughout the country.

[[Page S11437]]

  The legislation also maintains the integrity of the Coast Guard, so 
that the important function of search and rescue, drug interdiction, 
and environmental protection will not be degraded.
  Throughout his tenure, I have found Governor Tom Ridge to be a 
responsive member of this Administration, and I look forward to 
continuing to work with him in a constructive manner.
  While much of this legislation is important and necessary, I am 
concerned about several of the provisions.
  First, are the special interest gifts to the pharmaceutical and 
manufacturing industries that House Republican leaders slipped into the 
bill last week.
  Second, are the new surveillance powers granted to the Federal 
Government, and the potential impact on Americans' civil liberties. The 
Administration has assured Congress and the American people that the 
new authority will be used judiciously, and the Administration now must 
act responsibly and prudently.
  Third, I believe that men and women who serve their country in 
uniform are entitled to the same civil service protections as other 
federal workers, and I am disappointed that because of this bill, some 
workers will lost important rights.
  I intend to work with the new Department to protect Washington 
State's interests and will continue to monitor the implementation of 
this bill.
  Mr. INHOFE. Madam President, our world has changed dramatically since 
the tragic events of September 11, and by passing this bill, we are 
taking a momentous step forward in providing for the security of 
Americans at home. But I am concerned we might be missing an integral 
component to this secure system. We have outlined parameters for 
information security, privacy and authentication. But, how can we truly 
ensure someone is who he/she says they are before we give them these 
high-tech credentials? We have gone to great lengths to ensure the 
security of these counterfeit-proof credentials, but we need to also 
account for the validity of the information used to establish identity 
in the first place. What happens if we give someone a secure document 
with a biometric under a false name?
  The events of September 11 were orchestrated by a group of foreign 
individuals who used false information to receive legitimate U.S. 
identification documents like visas, passports, driver's licenses, and 
illegally entered this country. Identity fraud is no longer just a 
crime perpetrated by a common criminal to steal a credit card. Identity 
theft is now a tool employed by terrorist organizations to infiltrate 
America and harm our citizens. Terrorists have been able to take 
advantage of our ineffective and antiquated systems and assume false 
  In this bill, we establish an Under Secretary for Border and 
Transportation Security with the charge of preventing terrorists from 
entering this country. We need to make sure he or she has the tools 
necessary to authenticate a person's identity. Authentication of non-
U.S. citizens entering the United States must be a top priority. We 
have bipartisan support for such an effort and we must establish a 
system that ensures the identity of foreign individuals upon initial 
entrance into this country.
  For years, identity authentication systems have been used in the U.S. 
to prevent fraud in the consumer banking industry. Following the 
terrorist attacks on September 11, these systems have been adapted for 
national security purposes. These systems access a wide number of 
identifiers in domestic public records and use scoring and modeling 
methods to determine whether a particular person is who they say they 
are. These systems must be expanded to include publicly available 
information on individuals from foreign countries.
  The President has said, ``This nation, in world war and in Cold War, 
has never permitted the brutal and lawless to set history's course. 
Now, as before, we will secure our nation, protect our freedom, and 
help others to find freedom of their own.'' Let me be clear. There are 
people who deserve to enter this country and there are people who don't 
deserve to enter any country. We must have the ability to verify an 
individual is who they say they are the first time they apply for a 
visa. As we move forward, we must establish an identity authentication 
system that targets the 26 nations designated by the State Department 
as state sponsors of terrorism.
  Mr. REED. Madam President, I rise to discuss the legislation before 
the Senate to create a Department of Homeland Security. I have said 
throughout the debate on this legislation that I support the creation 
of a homeland security department, and despite my strong reservations 
about many of the specific provisions in the bill, I intend to support 
final passage today. The Senate has expressed its will through the 
amendment process, and while I have been disappointed with the outcome 
of many of the votes, the bill before us has the potential to improve 
our government's ability to combat terrorism against our people. 
Insuring domestic tranquility and providing for the common defense are 
among the most sacred Constitutional duties our constituents sent us 
here to fulfill, and on that basis alone this bill, while far from 
perfect, deserves to move forward.
  I will discuss many of the positive aspects of this legislation 
shortly, but first I want to outline some of my concerns with the bill. 
First, I am deeply disappointed that the House Republican leadership 
inserted into this must-pass legislation to protect our homeland a host 
of special interest giveways. The bill creates new liability protection 
for pharmaceutical companies by wiping out pending litigation; guts the 
Wellstone amendment that prohibited contracting with corporate 
expatriates; reverses the aviation security bill by providing special 
immunity to the companies that provided passenger and baggage screening 
in airports--companies that may have violated numerous security 
regulations on September 11; allows the Department to hold secret 
advisory committee meetings with hand picked industry advisors, even on 
non-sensitive matters, waiving the Federal Advisory Committee Act; and 
provides immunity from liability for manufacturers of products or 
technologies that cause harm to Americans.
  I also have concerns about provisions in this bill that would 
undermine the basic rights of federal employees to belong to unions and 
to bargain collectively with management over working conditions.
  Forty years ago, President Kennedy issued Executive Order 10988 
granting federal employees the right to organize and bargain 
collectively. President Nixon expanded employees' rights in 1969, and 
these rights were subsequently codified in the 1978 Civil Service 
Reform Act. These fundamental rights have never interfered with the 
provision of government services, including homeland security, and in 
fact I would argue they have strengthened our government by helping us 
to recruit and retain highly qualified employees who might otherwise 
look elsewhere for work. Union members are among our nation's most 
patriotic, dedicated and selfless public servants. When the World Trade 
Center was burning on September 11, the unionized firemen, police 
officers, and emergency medical personnel in New York did not stop and 
ask for a collective bargaining session. They went up the stairs, into 
the fire, and gave their lives so that others might be saved.
  Of the 170,000 federal employees who would likely be moved to the new 
Department of Homeland Security, at least 40,000 belong to unions and 
possess collective bargaining rights, including employees of the 
Customs Service, Border Partrol, and other important agencies. Our 
goal, as was proposed in the bill drafted by Senator Lieberman and 
reported by the Senate Governmental Affairs Committee, was to ensure 
that no federal employee who currently has the right to join a union 
would lose that right under the homeland security reorganization. 
Agencies where employees currently do not have collective bargaining 
rights, such as the Transportation Security Administration and the 
Secret Service, would not have been affected.

  To maintain the existing rights of union members transferred into the 
new Department, the Governmental Affairs Committee bill included a 
bipartisan provision that would update this formula. Under that bill, 
management could deprive transferred employees of their collective 
bargaining rights if

[[Page S11438]]

their work is ``materially changed'' after the transfer; their 
``primary job duty'' is ``intelligence, counterintelligence, or 
investigative duties directly related to the investigation of 
terrorism''; and their rights would ``clearly'' have a substantial 
adverse effect on national security.'' This provision was carefully 
crafted on a bipartisan basis to give the new Secretary of Homeland 
Security the flexibility he or she needs while preserving the rights of 
tens of thousands of employees who have possessed collective bargaining 
rights for decades and will be performing exactly the same work under a 
different letterhead.
  Unfortunately, the House drafted bill before us today does away with 
these protections. Under this bill, the President may waive existing 
union rights if he determines they would have a substantial adverse 
impact on the Department's ability to protect homeland security. He 
must send a written explanation to the House and Senate at least 10 
days in advance, but no Congressional approval is required. 
Furthermore, the bill allows the Administration to waive existing civil 
service protections over union objections. Although he would be 
required to notify Congress and engage in a 30-day mediation 
administered by the Federal Mediation and Conciliation Service, if 
mediation is not successful the President could waive civil service 
provisions notwithstanding union objections and act without 
Congressional approval.
  I am also concerned about the provisions related to the Vaccine 
Injury Compensation Program, VICP. The VICP is a no-fault alternative 
to the tort system for resolving claims resulting from naturally 
occurring, adverse reactions to mandated childhood vaccines.
  Over the years, the VICP has proven to be a successful component of 
our National Immunization Program. It has protected vaccine 
manufacturers, who play a critical role in the protection of public 
health against unlimited liability while also providing injured parties 
with an expeditious and relatively less contentious process by which to 
seek compensation.
  However, the provisions contained in this homeland security bill 
consist of one page of a 26-page bill introduced by Senator Frist 
earlier this year, S. 2053, the Improved Vaccine Affordability and 
Availability Act. While it has been argued that these provisions are 
needed to protect vaccine manufacturers, the fact is that manufacturers 
are already protected under VICP.
  Senator Frist's bill contains a number of provisions related to 
increasing vaccine rates among adolescents and adults, bringing greater 
stability to the vaccine market through the creation of a rigorous 
stockpile of routine childhood vaccines and reforms to the Vaccine 
Injury Compensation Program. Letters of support that have been cited on 
the Senate floor, from the Advisory Committee on Childhood Vaccines and 
the American Academy of Pediatrics, expressed support for these 
provisions, but only in the context of the comprehensive legislation 
set forth by Senator Frist, not on their own. The three sections that 
have been inserted simply have no place in a homeland security bill. 
These sections lack the thoughtful and comprehensive approach that is 
required to address the myriad challenges facing our childhood 
immunization program.
  Finally, I am concerned with the immigration provisions in this 
legislation. There is general agreement on the proposal to transfer all 
functions of the Immigration and Naturalization Service into the new 
Department. However, rather than establishing a single, accountable 
director for immigration policy, the bill calls for enforcement 
functions to be carried out by the new Bureau of Border Security within 
the Border and Transportation Security Directorate, while immigration 
service functions will be in a separate Bureau of Citizenship and 
Immigration Services that reports directly to the Deputy Secretary. 
While the bill does call for coordination among policymakers at each of 
the bureaus, they will ultimately establish their own immigration 
policy and interpretation of laws. I urge the Administration to ensure 
that policy coordination among the enforcement and services bureaus is 
comprehensive and consistent, so that the result for the nation's 
immigration system is real reform and not a new period of disarray.

  Nothwithstanding all of the concerns I have summarized, I believe 
that this legislation and the new department it creates have the 
potential to make the American people safer. The legislation will 
consolidate more than two dozen disparate federal agencies, offices, 
and programs into a focused and accountable Department of Homeland 
Security. The bill will bring together into a single Border and 
Transportation Security Directorate our Customs Service, the border 
quarantine inspectors of the Animal and Plant Health Inspection Service 
of the U.S. Department of Agriculture, the new Transportation Security 
Administration, and the Federal Law Enforcement Training Center. Within 
this directorate, the bill also creates an Office of Domestic 
Preparedness to oversee our preparedness for terrorist attacks and to 
provide equipment, exercises, and training to states. The Coast Guard 
will also be in the new department, reporting directly to the Secretary 
of Homeland Security.
  The Directorate for Information Analysis and Infrastructure 
Protection will enable the Department to ``connect the dots'' by 
organizing analyzing, and integrating data it collects at ports and 
points of entry with intelligence data from other parts of the 
government. The bill also provides the Department with access to 
unevaluated intelligence. It establishes separate Assistant Secretaries 
for information analysis and infrastructure protection, and has 
language making it clear that the Directorate's intelligence mandate is 
broader than infrastructure protection and including deterring, 
preempting, and responding to terrorist attacks.
  The Directorate for Science and Technology will conduct and promote 
long-term homeland security research and spearhead rapid technology 
development and deployment. It will bring together scientific 
capabilities now spread throughout the federal government to identify 
and develop countermeasures to chemical, biological, radiological, 
nuclear, and other emerging terrorist threats.
  In addition, the bill establishes a directorate of Emergency 
Preparedness and Response, with the Federal Emergency Management 
Agency, FEMA at its core, which will help to ensure the effectiveness 
of emergency response to terrorist attacks,major disasters and other 
emergencies by bringing under the Department's directorate several 
federal programs in addition to FEMA: the Domestic Emergency Support 
Teams of the Department of Justice, and the Strategic National 
Stockpile and the National Disaster Medical System of the Department of 
Health and Human Services. The Department will also have the authority 
to coordinate the response efforts of the Nuclear Incident Response 
Team, made up of elements of the Environmental Protection Agency and 
the Department of Energy. One of most important responsibilities of 
this directorate will be to establish comprehensive programs for 
developing interoperative communications technology, and to ensure that 
emergency response providers acquire such technology.
  These are all laudable and important goals, but because we have been 
blocked from passing the appropriations bills that would provide the 
resources the Department needs to perform its mission, our work is far 
from complete. Providing these resources will be our task on homeland 
security in the months ahead, and I hope my colleagues and the 
President give this task the same attention and effort they gave to 
creating a Department of Homeland Security.
  Madam President, because I believe the people of Rhode Island and 
Americans everywhere want to see the creation of a Homeland Security 
Department that will improve our ability to prevent and respond to 
terrorist attacks, I intend to support this legislation despite my 
concerns about many of the specific provisions included in the House 
draft of the bill before us today.
  Mr. BUNNING. Madam President, I am pleased the Senate is able to pass 
legislation to establish the Department of Homeland Security before 
Congress adjourns the 107th Congress sine die. After the terror attacks 
on September 11, 2001 it has been the mission of President Bush and 
many in Congress to create this new Department, and it

[[Page S11439]]

is particularly pleasing to get this done now rather than waiting until 
Congress starts up the 108th Congress in January of 2003. And I know as 
well the American people are supportive of getting this legislation 
passed now rather than later.
  Those who oppose this legislation before us may have some legitimate 
and principled concerns as to why they do not support this bill. By all 
means, the bill is not entirely perfect and I think most members of 
Congress would attest to that. But neither were the original bills to 
create any other federal department or agency perfect on the first try. 
That is why we have committee hearings on these issues, and I am sure 
we will pass supplemental and technical bills over the years to 
legislatively mold the new Department of Homeland Security so that it 
is stronger and more efficient.
  But we needed to get this bill rolling now. Every day is vital as we 
fight this new war on terrorism. Delaying the creation of this new 
department another three or four months could set America back in her 
defenses. Every day that goes by without work being done to create and 
organize this new department simply puts us back further and further. 
We just can't afford to let that happen. This is serious business.
  Although this bill may not be perfect and some may disagree with a 
few of its provisions, it is not so controversial that the bill 
deserves nor needs to be killed outright. We can come back and revisit 
those extraneous provisions some of my colleagues have been talking 
about. But we need to get the ball rolling. Agencies need to be 
realigned. We need to get rid of some of the duplicity amongst some of 
these agencies. Communication and information channels need to be 
streamlined. There is a lot of work to be done and every day counts.
  Earlier in this debate I came to the floor and spoke about the need 
for President Bush and future presidents to be able to have the 
authority and flexibility to hire and transfer employees, and even be 
able to terminate some employees, within the new Department of Homeland 
Security to ensure its mission can be undertaken. For weeks we had a 
real disagreement on this issue. Some wanted to ensure that workers 
were protected and preserved in their employment regardless of their 
performance or real need.
  Fortunately, in the end we have a piece of legislation that frees the 
hands of the president by giving him the necessary management and 
personnel flexibilities to integrate these new agencies into a more 
effective whole. While providing this flexibility, we still preserve 
the fundamental worker protections from unfair practices such as 
discrimination, political coercion, and whistle-blower reprisal. This 
flexibility and authority will better serve our president, the homeland 
and Americans.
  New provisions are also added to this bill to help protect our 
borders. We do this by moving the Coast Guard, Customs Service, 
Immigration and Naturalization Service, and border inspectors at Animal 
Plant Health Inspection Services all under the new Department of 
Homeland Security. This action is long overdue and a reminder to us 
that the first step in defending America is to secure her borders.
  As well, this bill helps to ensure that our communities and first 
responders are prepared to address threats. This bill does this by 
moving FEMA and the Secret Service under the new Department of Homeland 
Security. By moving FEMA, we are clarifying who's in charge, and 
response teams will be able to communicate clearly and work with one 
another. We will also benefit by the Department of Homeland Security 
being able to depend on the Secret Service's protective functions and 
security expertise.
  Some have voiced concerns that we are limiting and not protecting the 
freedoms and privacy of Americans in this bill. I would say to my 
colleagues that at the core, the real reason for this bill is to ensure 
just the opposite, to provide security and protect our freedoms. We 
have in this bill specific legal protections to ensure that our freedom 
is not undermined. This bill prohibits the federal government from 
having the authority to nationalize drivers' licenses and other ID 
  Also, the bill establishes a privacy officer. This is the first such 
officer established by law in a cabinet department. Working as a close 
advisor to the Secretary of the Department of Homeland Security, this 
privacy officer will ensure technology research and new regulations 
respect the civil liberties Americans enjoy.
  There are many other vital provisions in this bill which are needed 
to better protect our freedom and the homeland. It is a good and solid 
bill. It may not be perfect, but rarely are there any perfect pieces of 
legislation we pass here in the Senate. I am sure we will revisit this 
legislation and issue again, in committee hearings as well as 
considering technical and supplemental homeland legislation on the 
Senate floor.
  But it is imperative we pass this legislation now. We have worked 
hard on this bill, too hard to just let it die in the 107th Congress. 
We need to get it to President Bush's desk before we adjourn sine die. 
The sooner we get it to him, the better it is for the protection of the 
homeland and Americans.
  Ms. CANTWELL. Madam President, I rise to express my support for the 
creation of a Cabinet level Department of Homeland Security that better 
enables our border security agencies to coordinate and work together. I 
believe that if properly implemented such a Department will better 
protect our country from the threat of terrorism.
  The tragedy of September 11 demonstrated that our homeland security 
apparatus is dangerously disorganized, and that our vulnerabilities 
were real; we learned that we need organizational clarity and 
accountability to face the crucial challenge of improving homeland 
  On balance, the new Department of Homeland Security will reduce our 
vulnerability to the terrorist threat and minimize the damage and help 
recover from any attacks that do occur. However, we need to recognize 
that this is only a first step. The challenge of homeland security will 
require more than bureaucratic reorganization, we need to ensure that 
our efforts are bolstered with a real commitment to the attention and 
funding necessary to implement some of the goals of this legislation.
  Although I will ultimately support the homeland security bill, I do 
so with the recognition that no legislation is perfect. This 
legislation is, indeed, not perfect and it will demand continued 
attention and oversight by Congress to ensure that it lives up to its 
aspirations in ensuring our homeland security, while not betraying our 
principles of governance and freedom.
  One area that I have particular concerns is in regards to our 
continued efforts to address the issue of information and information 
sharing within the careful balance of security goals and civil liberty 
  I am particularly concerned with provisions of the bill that fail to 
explicitly address the broader concerns of privacy for American 
citizens and that reduce our access to public information through the 
FOIA process. I am particularly frustrated because both of these 
troubling provisions, provisions to enhance sharing of information 
about suspected terrorist activity with local law enforcement, and 
provisions to limit access to sensitive information available under the 
Freedom of Information Act, were negotiated and careful compromises 
were arrived at in the earlier version of the Gramm-Miller Senate 
substitute and in Senator Schumer's bill, S. 1615, the Federal-Local 
Information Sharing Partnership Act.
  The timely sharing of investigative information between various 
enforcement and intelligence agencies can provide necessary 
improvements in our nation's security. Unfortunately, the version that 
is contained in this legislation provides absolutely no limitations on 
how this information can be used or disseminated. This is particularly 
troubling because we have already expanded the type and amount of 
personal information available in federal databases. To greatly expand 
access to personal information without providing any protections on its 
use is a dangerous erosion of our valued right to privacy and has the 
potential to eviscerate the protections that the Constitution 
guarantees Americans against unfettered government intrusion into 
privacy. I support greater access to information, and I believe that

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it is primarily through appropriate use of information technology that 
we are likely to make real improvements in our domestic security, but 
greater access to personal information cannot come without offsetting 
protections against its misuse.

  The very broad language, inserted for the first time by the House, 
offers no procedural mechanisms to assure the government adheres to 
protections of privacy or civil liberties. Information sharing without 
citizen recourse or correction, without adequate procedural safeguards, 
has the potential to undermine the privacy of every citizen. The Senate 
has already acted on this issue and language exists that can better 
provide access to local law enforcement while also providing real 
protections to our citizens. This legislation has already passed the 
Judiciary Committee and I am committed to working with Senator Schumer 
to passing this legislation next year.
  In addition, this bill previously contained carefully crafted 
language that protected sensitive information from discovery through 
the Freedom of Information act. The Freedom of Information act is a 
valuable tool in assuring open and accountable government and I believe 
that any effort to alter it must be carefully considered. This careful 
consideration produced the language in the original bill, a compromise 
crafted by Senators Bennett, Levin and Leahy. As the editorial board of 
the Olympian wrote today ``The public is already leery of government 
and understands that public records are one means of keeping elected 
and appointed officials in check'' Unfortunately, this bill contains a 
very broad exemption which has the potential to protect much 
information from public scrutiny. We must be cautious in taking steps 
that reduce open access to government and I am concerned about the 
broad nature of this language.
  I am also very disappointed by how the Immigration and Naturalization 
Service is reorganized within the Homeland Security Agency. By 
completely separating the service and enforcement functions of the INS, 
I believe that we will only be compounding the problems that already 
plague this moribund agency. Coordination between the service and 
enforcement arms of the INS is required to make the agency more 
efficient and to ensure that its dual missions of enforcing the law 
against those here illegally and facilitating residence and citizenship 
for those here legally achieve the same level of support.
  Last, a major stumbling block in passing this legislation has been 
the concern with the rights of many talented employees already employed 
by agencies who will be moving into the Homeland Defense Department. I 
do not believe this legislation provides adequate safeguards for these 
employees and I believe that the Congress will need to perform a great 
deal of oversight to make certain that abuses do not occur in this 
  As I said before, no legislation is perfect, and our job in Congress 
is not over with the passage of this bill. We need to remain dedicated 
and focused in our task of ensuring that the implementation of this 
bill is accomplished effectively and consistent with the principles and 
rights that have made this country great.
  Mr. REID. Mr. President, I want to discuss the bill before us dealing 
with the creation of a department of Homeland Security.
  I applaud Senator Lieberman for developing this idea of a new 
department to protect our Nation against the horrible specter of 
terrorist attacks on our cities and citizens.
  The people of Nevada look to the Federal Government to make sure that 
our State and our Nation are secure.
  We all agree that our Federal Government can, and should, do much 
better at preventing attacks, defending against attacks, and mitigating 
the consequences of attacks.
  In Nevada, we have already begun to help. The Nevada Test Site has 
established itself as one of the premier centers for emergency 
responder training. Under the new Department, this facility will only 
flourish. The new Department will also help develop the burgeoning 
counterterrorism programs at Nevada's major research institutions, 
including the University of Nevada-Las Vegas and the University of 
Nevada-Reno. The people of Nevada have a proud history of providing the 
nation with the necessary skills, hard work and vision to protect our 
Nation. I know Nevada will do the same for the war on terrorism.
  A new department of Homeland Security will be a good start, but this 
new Department is by no means the finish line in the effort to defense 
our nation.
  More important, this new Department must not be a distraction from 
the job of protecting our Homeland. If it turns our that the 
consolidated departments, agencies and bureaus are spending more time 
looking for their new desks instead of hunting down Osama Bin Laden, I 
will be the first one to work on legislation to fix it.
  We must not believe that establishing this Department ends the need 
for vigilant oversight, and we must not give in to the false security 
that a new Department could provide. Protecting our Nation from the 
horrors of terrorist attacks involves more than changing the name, 
moving offices and shuffling desks around.
  Protecting our Nation requires strengthening our intelligence 
gathering and analysis--it means improving the communication between 
many Federal departments and agencies--it means providing the funding 
we need for research and technology investments--it means tapping the 
resources of the American entrepreneur and the soul of the American 
  The proposed Department will address many of these concerns, but not 
all of them.
  I am voting to support this legislation, because the President claims 
that it will be more than just a name change. I will be watching very 
closely to make sure that it is.
  There are several areas that I plan to keep a close eye on.
  First, this new Department, though it has some new intelligence 
sharing responsibilities, will not fix the problems at either the 
Federal Bureau of Investigation or the Central Intelligence Agency or 
the lack of coordination and cooperation between the two. Those 
agencies were left out of the Department of Homeland Security, even 
though they share tremendous responsibility for the Administration's 
failure to properly interpret the intelligence warnings before 
September 11.
  Second, this bill gives tremendous authority to the executive branch 
of the Government. With that authority comes tremendous responsibility. 
In particular, this new strong authority presents a tremendous 
potential for abuse and misuse. I am disappointed that such an 
important piece of legislation would be used to weaken important 
provisions of our law. This bill makes unnecessary attacks on the 
ability of the American people to access Federal documents, and on the 
protections afforded the people who work for the Federal Government.
  The labor provisions of this bill still fall far short of what I'd 
like to see. I still believe that it is entirely possible to reorganize 
our homeland defense efforts and dramatically improve the state of our 
Nation's security without stripping dedicated and loyal workers of 
basic protections in their jobs. All across the country, there are 
union members holding jobs that require flexible deployment, immediate 
mobilization, quick response, and judicious use of sensitive 
information. Police and firefighters have union protections, and their 
ability to bargain collectively actually improves our ability to fight 
crime and fires. The union protections make the jobs attractive enough 
for talented individuals to want to stay in the positions for long 
periods of time. We as a society gain because we are able to retain 
skilled people to work on our behalf.
  Senator Lieberman's bill was able to preserve a fair balance in this 
respect. His legislation retained most labor rights, but in cases where 
national security might otherwise be compromised, the President would 
have the flexibility to do whatever was necessary to protect the 
  This bill, on the other hand, will drive many talented individuals to 
look for employment elsewhere, in positions that afford at least a 
minimal level of job security and due process. I fear that over time we 
will see a deterioration in the caliber of employees that join this 
department, and I expect to revisit the labor provisions before many 
years have passed.

[[Page S11441]]

  I am also deeply troubled by the efforts to allow this department to 
operate in secrecy. We have seen the unfortunate impacts of secrecy in 
the development of a national energy policy by the administration. This 
bill would continue this dangerous trend on the part of the 
administration. The administration appears to be more concerned with 
protecting the corporations' bottom-line than defending the citizens 

  I also have strong concerns about many of the provisions included in 
this bill that do not relate directly to the creation of the department 
of security.
  A tax loophole has allowed dozens of U.S. corporations to move their 
headquarters, on paper only, to tax haven countries to avoid paying 
their fair share of U.S. taxes. Several months ago, Paul Wellstone and 
I offered an amendment to bar the Department of Homeland Security from 
awarding government contracts to these corporate tax runaways. The 
Senate adopted that amendment unanimously, but this bill guts that 
agreement. It is a sad reality that these corporate expatriations are 
technically legal under current law. But legal or not, there is no 
reason why the U.S. government should reward tax runaways with 
lucrative government contracts.
  Paul and I felt that if these corporations want Federal contracts so 
badly, they should come home. Just come back to the United States, and 
they'd be eligible to bid on homeland security contracts. And if they 
didn't want to do that, then they should go lobby the Bermuda 
government for contracts there. It should have been a priority of this 
legislation to guarantee that the Department of Homeland Security 
conduct its business with corporations who do their share to bear the 
burdens of protecting this country. This legislation is more concerned 
with window-dressing on this issue.
  Although I agree that the agency primarily responsible for the 
security and safeguarding of nuclear material, the Nuclear Regulatory 
Commission, should not be in the new Department, the bill does not 
address the important issues of chemical and nuclear power plant 
security. Protecting our energy infrastructure involves challenges 
related to the appropriate sharing of responsibility between the 
private companies who own and operate these facilities and the Federal 
Government. Our existing laws do not considered fully the implications 
a terrorist attack would have on our ability to prevent and respond to 
terrorist attacks on these facilities.
  These concerns are real. In fact, the President raised the specter of 
a terrorist attack on one of our nation's nuclear power plants in his 
State of the Union address. And just a few days ago we were warned 
again that these facilities are potential targets. The Department of 
Homeland Security should work quickly with other federal agencies to 
improve their security, until the Congress is able to enact appropriate 
legislation to protect them.
  Many of my colleagues have eloquently described the outrageous 
special interest provisions that were included in this bill, so I won't 
repeat many of those points. I do want to say that I am disappointed 
that the administration chose to include these provisions. They knew 
that this bill would pass, because it is so important to our country. 
They knew they could try to sneak these outrageous provisions in. This 
is not the way to increase the security of our country following the 
horrendous attacks of September 11.
  There are several provisions I am particularly pleased will be 
enacted into law. These provisions deal primarily with the aviation 
industry in the aftermath of September 11.
  I am pleased that a provision to allow the Transportation Security 
Administration flexibility to extend the baggage claim deadline for 
airports was included in the legislation. This is extremely important 
to Las Vegas McCurran and Reno/Tahoe International Airports in Nevada. 
Las Vegas is the second leading airport in the nation for origination 
and destination passengers. Only Los Angeles International airport 
handles more. In fact, Las Vegas handles more luggage than most of the 
nation's larger airports. Allowing TSA to work with selected airports 
to implement the 100 percent baggage screening requirement over a 
reasonable time period will in the long run be the most secure course 
for the traveling public.
  This legislation also includes language extending the time frame and 
expanding the scope of War Risk Insurance made available to commercial 
airlines under the FAA's War Risk Insurance program. This was a top 
priority for the airline industry, described by leading industry 
officials as the single most important and cost effective action 
Congress could take at a time when commercial airlines are facing 
enormous financial challenges. The provision in the bill should help 
stabilize the insurance crisis resulting from the terrorist attacks of 
September 11th. The War Risk Insurance provision of the bill mandates 
extension of coverage through August 31st, with an option to extend War 
Risk coverage through December 31, 2003. It also calls for expansion of 
the scope of War Risk Insurance made available to airlines, adding 
coverage for passengers and crew and loss of aircraft to the coverage 
for third party liability currently made available by the FAA.
  Finally, the bill reinstates a short term limitation of third party 
liability in cases of terrorist acts involving commercial aircraft. 
Last year's airline stabilization bill capped third party liability at 
$100 million where the Secretary of Transportation certifies that an 
air carrier was a victim of an act of terrorism. This short term 
limitation of liability expired in March, however, and has now been 
reinstated through the end of 2003.
  Today I am supporting the creation of the Department of Homeland 
security. Establishing a new department is an important way to ensure 
we have a coordinated Federal response to potential terrorist attacks.
  This legislation may have flaws, but the principle is correct. So 
today I am choosing to support the legislation, but I will keep a close 
eye on its implementation. If there are changes that need to be made, I 
will work hard to fix the flaws.
  Mrs. CLINTON. Madam President, in the months following September 11, 
a new reality took hold in every corner of our country. We saw the 
National Guard standing guard at our airports and in front of 
Government buildings. Bioterrorism and border security were discussed 
every day. The skies over New York and Washington, DC were patrolled by 
our military. And every American believed that these new measures made 
our Nation stronger and protected us against terrorist attacks.
  But time has passed and that vigilance has faded. Not by our police 
officers, firefighters, or emergency response personnel. Not by the 
brave men and women who are serving in Afghanistan. Not by the workers 
along our borders and in our ports. But by the Federal Government. We 
have slipped into an almost piecemeal approach to Homeland Security and 
that has to change, starting today.
  ``Are we safer today than we were on the morning of September 11, 
2001?'' The answer is only marginally, because somewhere along the 
line, we lost our way.
  Those individuals who are sacrificing and working to do their best 
and secure our country want to do more. But each day, despite some of 
our efforts, we do less and less for them. We issue warnings about new 
threats. We expect people and cities and towns to react accordingly, 
but we do not provide enough funding, support, or guidance for them to 
do their jobs. We need to redefine our focus on Homeland Security, and 
one way to do that is to reorganize the way our Government works.
  The votes we cast today for the creation of a new Homeland Security 
Department are just that-votes for the creation of a department. Our 
Nation and particularly the people I represent in New York, learned the 
hard way on September 11, 2001--the status quo is unacceptable.
  My hope is that approval of this bill sets in motion a necessary 
reorganization process that will ultimately result in improved 
coordination, information sharing, and a stronger and safer America. We 
need to send a clear message that our Government is doing more than 
simply talking about strengthening our homeland security; that we are 
once again focused on concrete steps that will defeat the terrorists 
and protect our people.
  But we must be clear about what we are voting on today--this bill has 

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to do with structural reorganization and very little to do with 
enacting real steps that will protect our Nation against terrorist 
attacks. There are many things in this bill that should not be; and 
there are many things that should be in this bill that are not.
  I am concerned that the American people will think that simply 
because we have passed this bill that our Nation is safer. They need to 
know that this measure does not increase patrols along our northern 
  It does not give our firefighters, police officers, and emergency 
personnel the resources, training, and equipment they need to protect 
our frontlines at home. It does not increase security measures at our 
ports, along our railroads, and public transportation systems. It does 
not increase our capabilities of detecting biological, chemical, and 
nuclear weapons. What this bill does is it falls short on many counts, 
especially when it comes to real measures that would improve our 
  We had the opportunity to do this right. We had the opportunity to do 
more than create a department, but we missed it. The Senate's original 
bill included critical measures that would make our country safer today 
than it was yesterday. But in the end, this Congress failed to put 
safety first and special interests last.
  There is a lot in this bill that secures the future for the special 
interests and very little that secures our country. Those who are using 
this legislation--this legislation that's about the security of our 
Nation--as a vehicle for the special interests have done this country a 
great disservice.
  That is why Congress must not, cannot, stop here. Our job is far from 
over. We must continue to fight to make sure that every substantive 
part of the old bill that increased our security gets passed in the 
next Congress.
  Let's start with the obvious-supporting our first responders. They 
are a critical part of our Homeland Security. Our firefighters, police 
officers, and emergency personnel need direct funding, training, and 
additional equipment to keep our Nation safe.
  When it comes to Homeland Security, we need to listen to the 
experts--our mayors, police commissioners, fire chiefs, and our public 
health workers.
  They continue to ask for direct funding, and that is why I proposed 
legislation that would provide direct funding to local communities, the 
Homeland Security Block Grant Act.
  Since we began the war on terrorism, we have done everything to 
ensure that our men and women in the military have the resources, 
equipment and training they need to fight the war on terrorism, and 
that's how it should be. But we are not doing the same at home. It is 
unconscionable to me that a Homeland Security Bill such as this one 
would not include support for our Nation's frontline defenders.
  At the end of October, Senators Hart and Rudman released the 
Terrorism Panel's report that clearly states that we are not doing 
enough to support our first responders and keep our country safe. They 
expressed grave concern that 650,000 local and state police officers 
still operate without adequate US Intelligence information to combat 
terrorists. We haven't done enough to help local and State officials 
detect and respond to a biological attack. The report expressed concern 
that our firefighters and local law enforcement agencies still do not 
have the proper equipment to respond to a chemical and biological 
attack. Their radios are outdated and do not allow them to communicate 
in an emergency.
  What kind of tribute is this to the heroes who lost their lives in 
last September? What would the firefighters, police officers, and 
emergency response workers who did not think twice about rushing to 
Ground Zero to save lives say about the lack of progress that's been 
  Additionally, the SAFER Act, a provision that allows our country to 
hire 25,000 firefighters over the next couple of years has been 
eliminated from this bill. This is the time for us to do more for our 
first responders, not less. They are the most important link in our 
Homeland defense, and to shortchange them in these difficult times is 
incredibly shortsighted.
  We must also act to better secure our Nation's nuclear power 
infrastructure. While the Homeland Security Bill will create a new 
department, it does not adequately address the very real threat of 
terrorists' capabilities and desire to destroy our nuclear power 
plants. Our efforts to protect our infrastructure is moving much too 
slow. Last year, Senators Jeffords, Reid, and I introduced the Nuclear 
Security Act. This summer, we succeeded in moving the Act through 
  It is a shame that the Homeland Security Bill does not address 
nuclear security and it should. These protections should be included in 
this discussion, and the new Congress must work together to pass the 
Nuclear Security Act promptly.
  We must also better protect ourselves against the very real threat of 
terrorists detonating a dirty bomb in our country. It is imperative 
that we better secure our domestic radioactive materials. Every year, 
highly active sources used in industrial, medical and research 
applications are lost or stolen in America. This is why I introduced 
the Dirty Bomb Act to strengthen these security measures and enhance 
our security.
  And, while we work in the Congress to pass security measures like 
these, we will have to also work to get rid of provisions that do not 
belong here.
  As I described on the Senate floor and in a press conference last 
week, this bill includes unrelated vaccine liability provisions. 
Protecting manufacturers from liability can be appropriate as part of a 
comprehensive vaccine bill that addresses a balanced range of important 
goals, including strengthening vaccine supply and addressing families' 
interest in compensation. But plucking out industry liability 
protections and addressing only that side of the issue clearly 
prioritizes manufacturers over families, and puts politics ahead of 
homeland security.
  The provisions protect one particular manufacturer by dismissing 
existing lawsuits brought by parents of autistic children who believe 
there may be some connection between the mercury-based preservative and 
their child's illness. There may or may not be a connection, and the 
tort system may or may not be the right solution.
  However, enacting only provisions that help manufacturers, while 
ignoring families concerns for compensation, and children's needs for a 
strong vaccine supply not only fail to protect homeland security, they 
fail to adequately protect children from preventable disease. All they 
do is protect vaccine manufacturers against lawsuits and undermine our 
bipartisan efforts to assure that every child is vaccinated safely.
  While I believe the Congress should debate issues of tort reform and 
reasonable arguments have been made, I am also concerned that some of 
the tort provisions included in this legislation have nothing to do 
with homeland security and have not been debated by the Senate. One 
provision is the ``Support Anti-Terrorism by Fostering Effective 
Technologies Act of 2002,'' ironically named the ``SAFETY Act.''
  This measure lowers standards by giving manufacturers immunity from 
liability for the products they make that our first responders will 
use. How will this help America build a stronger homeland defense? It 
doesn't--it just makes it easier for manufacturers to get away with 
indefensible actions.
  There is a provision in this bill that upsets the balance between the 
public's right to know and the Government's responsibility to protect 
certain information so that it can better secure our country.
  The House-passed bill contains significant loopholes that would 
provide protections for certain information by limiting access, 
prohibiting its use in court, and even making it a crime to make such 
information available. It appears that the bill may even allow 
companies to decide for themselves what information should be afforded 
such protections. This means certain protections could potentially be 
extended to information that doesn't even have anything to do with 
security, thereby shielding potentially damaging information from the 
public and the courts.
  While private entities should be encouraged to provide critical 
infrastructure information to the Government in order to help assess 
and address vulnerabilities to future terrorist attacks, it should not 
come at the expense of the public's right to know.
  I am also troubled by the so-called compromise over the civil service 

[[Page S11443]]

labor provisions in the new bill. The bill gives the President the 
authority to waive civil service protections in six key areas including 
rules for labor-management relations and appeals to the Merit Systems 
Protection Board.
  I am concerned that this will hinder the ability of the new 
department to recruit and retain civil service employees who have 
expertise in the agencies that will be shifted to the new Department. 
This shortchanges the workers and shortchanges all Americans who 
believe we should have the most qualified individuals working in this 
new department.
  The bill will also allow the Administration to strip workers of their 
collective bargaining rights through a waiver authority. I must say 
that we have every reason to believe that this Administration will take 
advantage of this authority. It has already taken away these rights 
from secretaries at the U.S. Attorney's offices. And I fully expect 
that it will use this authority, if it is granted, to strip away the 
rights from the more than 50,000 workers who will make up the newly 
formed Department of Homeland Security.

  As a Senator from New York, I have a particular interest in this new 
department and have some specific concerns on behalf of my State. When 
it comes to protecting New York and New York City, I do not believe 
that this bill goes far enough and I will work to fix these provisions 
so that they do. The bill ensures a special coordinator of homeland 
security in the Capitol Region, DC, Maryland and Virginia, but does not 
establish a similar coordinator for New York City's metropolitan 
  Intelligence reports indicate that like Washington, DC, New York City 
is a high-risk area, still a target for terrorists and a symbol of our 
Nation. Even as we recover, we are still vulnerable, and the New York 
region needs its own coordinator.
  In the aftermath of September 11, FEMA was able to respond to an 
unprecedented kind of disaster, precisely because it was a highly 
functioning, well-run agency. All of us in New York are indebted to 
Director Allbaugh and his staff for their good work. I am concerned 
that transferring FEMA into the new department could force a highly 
competent independent agency into a new bureaucracy that will have 
challenging integration issues and thus diminish the effectiveness of 
FEMA's ability to respond to crises of all kinds.
  I also oppose moving Plum Island from the Department of Agriculture 
into the new Department. Also, I fear that this move could be a 
precursor to raising the biosafety level at the Plum Island facility. 
This would allow research on life-threatening exotic animal diseases 
and these harmful materials could be transmitted through the air. This 
would pose too many risks to those in my State who live near the 
facility, and I will strongly oppose any efforts to raise the biosafety 
level at Plum Island.
  As I have said throughout the last fourteen months, we need this new 
department to better coordinate and share information. There is no 
question we must change the way things work in Washington so that we 
adapt to the post 9/11 world. There are many problems with this bill, 
some of which I have outlined here. These problems will need to be 
addressed in the months and years ahead.
  Today, the Senate will also vote on a continuing resolution to fund 
the Government at last year's funding levels from now through January 
11th. While it is imperative we keep the Government running, it is 
shameful, not to mention ironic, that we will depart without ensuring 
that we fund homeland security. It is not enough to create a new 
Department without investing in the necessary funding to protect 
against bioterrorism, increase our port inspections, secure our 
Nation's nuclear weapons plants, invest in technology so that our first 
responders can communicate in a disaster.
  At best, we are sending mixed messages to the American people about 
our priorities; even more troubling is that these actions reflect what 
actually are the Government's present priorities.
  But at the end of the day, we must move forward with this bill. 
Hopefully, it will spur us to focus once again with the same commitment 
and vigilance we had in those weeks and months after that tragic day in 
September. The threats continue to come in. Attacks occurred in Bali, 
Yemen, and in Kuwait. A new tape reveals that Osama Bin Laden is most 
likely alive. And al-Qaida is plotting all the while.
  We do not have the time or the luxury to remain in this status quo. 
This bill is the smallest step forward we can take, but it is a step 
forward nonetheless and that is why I support it.
  On its own, it will not make us safer but it pulls us out of this 
piecemeal approach to Homeland Security and directs our Government to 
pursue one fundamental goal--to make sure that we do everything in our 
power to make America stronger and safer so that no other American life 
is taken by the hands of a murderous few.
  Mr. HOLLINGS. Madam President, I am voting against the legislation 
before the Senate to institute a new Department of Homeland Security. 
The President says we need a Department to prevent another September 
11, but all this legislation does is produce an elephantine 
bureaucracy. It does nothing to fund the people on the front lines, who 
really could fight terrorism; instead funds will be spent in Washington 
by bureaucrats for bureaucrats.
  The proposed department excludes the very entities that failed on 
September 11, but includes all the ones that did not. On September 11 
the CIA dropped the ball on intelligence it possessed. So did the FBI. 
Yet they aren't included. But the Coast Guard did not mess up on 
September 11th, nor did FEMA, nor did the Agriculture Department's 
Animal and Plant Health Inspection Service yet they are all included.
  This is a game of musical chairs. It shuffles and reorganizes 170,000 
employees, at 22 different agencies, involving more than 100 bureaus or 
branches. Yet roughly 110,000 of the personnel scheduled to be moved 
are already together. Airport, seaport, rail security, and the Coast 
Guard are already part of the Transportation Department.
  The legislation is loaded with items purporting to be helpful to our 
national security, but which may have little effect or would even 
hinder security. It rolls back the deadline for all airports to check 
every passenger's luggage, not just the few dozen that may need some 
additional time. It is crazy to call for the urgency of a new Homeland 
Security Department, and then say to our highest profile targets, 
``take your time.''
  It lets pilots carry guns in cockpits, but doesn't require 
impenetrable cockpit doors, which the Senate agreed was critically 
needed. What more proof do we need then on Sunday, when the locked door 
on an El Al airplane helped prevent the hijacker from flying into 
skyscrapers in Tel Aviv?
  The bill is full of payoffs and surprises the House leadership 
included at midnight, right before they left town. Suddenly, we are 
helping Eli Lilly--why? Suddenly, we are helping American companies 
that went to Bermuda to avoid taxes. Suddenly, we are absolving private 
aviation screening companies from liabilities related to their 
September 11 failures. What does any of that have to do with homeland 
  This legislation is supposed to create an independent commission to 
determine what went wrong on September 11. Incredibly, the very 
provisions Congress inserted to establish this Commission, freeing the 
investigation from political hand wringing in the Select Committee on 
Intelligence, were dropped by House leaders after the elections. The 
so-called independent commission is now anything but independent.
  And in nearly 500 pages, the legislation fails to contain a very 
important item that would be immediately helpful. No where is the 
National Security Council re-organized. September 11 was an 
intelligence failure. It was not due to lack of information. As soon as 
the terrorists struck we knew who they were. Immediately, we rounded up 
suspects here and moved into Afghanistan. Instead, the problem was a 
failure on the part of the National Security Council to coordinate, 
analyze, and deliver the intelligence to the President.
  The President should be able to get well-analyzed reports of domestic 
threats on a timely basis. But how can he when his own National 
Security Council does not even include the Attorney General or the 
Director of the FBI? If Congress wants to re-organize, we should re-
organize the Council to

[[Page S11444]]

include law enforcement and to make certain intelligence is shared with 
Customs, INS, the Coast Guard, and the others who need to know. Equally 
important, intelligence should be shared with and received from state 
and local officials, but it's not here in this bill.
  Right to the point: this Senator has not waited for a behemoth bill 
to take action on homeland security. In the Commerce Committee, we 
moved several concrete measures to improve our transportation security, 
insofar as air and sea ports, and trains and buses that criss-cross the 
  When Americans fly this holiday, they will see huge improvements in 
the way security is provided. Congress just passed our legislation to 
close the gaps that exist at ports along America's coasts, for the 
first time creating a national system for securing our maritime 
  Is there more this Senator wants this Congress to do for those on the 
front-lines of homeland security? Absolutely. We should provide for the 
security of Amtrak's 23 million passengers. We should improve security 
on buses and freight rail. We should finish the job at our airports and 
at our seaports. We should prepare our hospitals and other first 
responders to react to an act of bioterrorism.
  But how can we when we are going to throw billions to shuffle 
bureaucrats from one side of Washington to the other. Designing a new 
logo is not going to help secure our homeland. Nor is renting office 
space, or buying more desks, and everything else like that. We will be 
paying more for nonsense redecorating than arming those on the front 
  We have our priorities messed up. A new Department of Homeland 
Security is unnecessary. And the worse case is for the Department to be 
set up and our country lulled into thinking we are all safe and secure. 
A September 11 could still easily happen again.
  Mr. FEINGOLD. Madam President, I regret that I am unable to support 
the Department of Homeland Security bill. While this reorganization may 
make sense, it should not have come at the expense of unnecessarily 
undermining our privacy rights or weakening protections against 
unwarranted government intrusion into the lives of ordinary Americans.
  We need to be better able to review and identify critical 
information, take more rapid steps to address terrorist threats and, 
when necessary, share information quickly with local law enforcement. I 
had hoped that the proposed creation of a new Department of Homeland 
Security would have focused on those priorities.
  Protecting the American people is the number one responsibility of 
our government. As a result of the tragic events of September 11, we 
all recognized that a major review of our government was needed. As we 
have debated the need for, and the details of, the new Department of 
Homeland Security, I have been guided by two principles: Will this 
reorganization make all of us safer? And will it preserve our liberties 
as Americans? Unfortunately, while there is much that is good in this 
bill, there are a number of critical areas where the bill simply goes 
too far, or falls short.
  After careful review, I must conclude that this bill is not well 
thought out. The American people would benefit from the Congress paying 
closer attention to the details of this new version of the bill. This 
proposal threatens to erode the fundamental civil liberties and privacy 
of all Americans. It does not ensure that the new Department will be 
able to effectively communicate and share information with agencies 
like the FBI. It is weighed down with special interest provisions that 
have nothing to do with the creation of the new department. It does not 
give our first responders all of the tools and information necessary to 
protect our communities. It lacks adequate civil rights oversight, and 
it needlessly undermines the employment rights of the dedicated workers 
in this new Department who will be protecting all Americans. At times, 
the proposal reads like a dusted off copy of an earlier administration 
wish list, much of which has nothing to do with our fight against 
  We need not unnecessarily sacrifice treasured civil liberties and 
privacy in order to be secure. I fear that the bill we are voting on 
today will authorize the federal government to maintain extensive files 
on each and every American without limitations. The data mining 
provisions in the bill encourage retired Rear Admiral John Poindexter's 
massive government effort to create a computer file on the private life 
of every American. The Total Information Awareness system now under 
development needs active congressional oversight, particularly in these 
early days of the program. Rather than giving further authorization to 
this kind of effort in this bill, we should be demanding that the 
administration immediately suspend the Total Information Awareness 
initiative until Congress has conducted a thorough review and refrain 
from implementing this program in the new Department.
  In addition, the present proposal, in a section about cyber-security, 
actually creates a sense of insecurity for all of us. The Federal 
Government would have the right to obtain the contents of our private 
computers without adequate judicial oversight. This bill weakens 
important safeguards on government access to our e-mails and 
information about what we do on the Internet without the need for a 
court order. The Department should be focused on protecting us from our 
enemies, not on snooping on innocent activity.
  While the bill does make some progress toward enhancing communication 
among many agencies that are charged with protecting Americans, it 
falls short in ensuring that the essential work of agencies like the 
FBI will be adequately shared with and utilized by the new department. 
Overall, the proposal fails to enable the new department to be a full 
participant in the intelligence community.
  While our public safety must be our highest priority, we should not 
turn a blind eye to the bottom line. And we should not aggravate our 
budget problems by adding expensive special interest provisions that 
have nothing to do with this new department.
  Special interest provisions in the bill would cap liability for drug 
companies for vaccine additives, give the Secretary of the new 
department broad authority to designate certain technologies as so-
called ``qualified anti-terrorism technologies,'' thus entitling the 
seller of that technology to broad liability protection no matter how 
negligent the seller, and apparently earmark the university-based 
homeland security research center for Texas A&M.
  All of us know that local law enforcement, fire fighters, and other 
first responders are on the front lines in the fight against terrorism. 
The Department of Homeland Security needs to ensure that Federal, State 
and local law enforcement agencies, fire fighters, and other first 
responders are able to work together to adapt and respond to the 
evolving challenges of terrorism. Unfortunately, the new department is 
not organized in a manner that provides the maximum possible help to 
those on our front lines. A Department of Homeland Security must ensure 
that it provides our local first responders with the necessary 
information, tools, and resources that are required to adapt and 
respond to the evolving challenges facing our First Responders.
  I am disappointed that my bill, the First Responder Support Act, 
introduced with the Senator from Maine, Ms. Collins, is not part of the 
present proposal. It had been included in the Lieberman bill, but was 
stripped out of the bill last week without any warning by the House 
leadership. The First Responder Support Act will help first responders 
get the information and training they need from the Department of 
Homeland Security, and that measure will be a top priority for me in 
the next Congress.
  I am also concerned with the proposal's disdain for the public's 
right to open government. The bill would undermine the protections of 
the Freedom of Information Act and exempt the proposed department's 
advisory committees from the open meetings requirements of the Federal 
Advisory Committee Act. Current law already provides adequate 
protection for sensitive information. The broad language of this bill 
is far too sweeping.
  Finally, I believe that while this bill includes some civil rights 
oversight, it offers weaker protections than are found in other federal 
agencies. Steps should have been taken to strengthen

[[Page S11445]]

the Civil Rights Office in the new department by requiring that the 
head of that office be subject to confirmation by the Senate and 
therefore accountable to the Congress and the American people. The bill 
should have designated an official in the office of the Inspector 
General to fully investigate allegations of civil rights violations. 
This bill also should have included stronger protections for the 
Americans who will be working in this new Department and protecting our 
Nation. Congress owes these Americans the same employment rights that 
other public servants enjoy.
  We must not forget that we are having this debate because of what 
happened on September 11. We need to learn from September 11 and ensure 
that we do not fall victim to a similar tragedy in the future. I 
believe that we could have given the American people a Department of 
Homeland Security that would ensure their safety and security, and 
protect their civil liberties. Unfortunately, this bill has too many 
provisions that unnecessarily jeopardize our basic freedoms, and I 
cannot support it.
  Mrs. LINCOLN. Madam President, I rise tonight to strongly support the 
creation of a Department of Homeland Security. By consolidating the 
agencies responsible for protecting our borders and infrastructure, we 
can make significant progress in ensuring the security of the American 
people, and this body would be remiss if we were to fail in passing 
this critical legislation before we adjourn.
  Just this week we've learned that Osama bin Laden is still alive and 
still posing a threat to American interests at home and abroad. Recent 
activity and communications by his al-Qaida terrorist network, which we 
have seen reported in the media, suggest that the threat is as serious 
today as it was 14 months ago. These are glaring reminders that the War 
on Terrorism is far from finished and that we must be vigilant both at 
home and abroad to protect and defend this Nation.
  I also want to reassure all Arkansans that the creation of this 
Department is not the only step in the protection of this Nation. 
Homeland security must be an ongoing process as we respond to new 
threats and the inevitable needs to correct deficiencies in this 
legislation--including modifications to this department over time. I 
intend to continue to seek any and all ways that we can increase the 
security of our homeland.
  As I said in remarks on the Senate floor last week, I would like to 
state for the record my disappointment with some provisions that were 
added by the House of Representatives in the final hours without any 
opportunity for debate.
  Three provisions in particular give me pause: waivers that the 
administration will be able to use to grant Federal contracts to 
companies that reincorporate offshore to avoid paying U.S. taxes; 
provisions that would broaden limits on lawsuits against vaccine makers 
to manufacturers of other vaccine components, covering still-pending 
litigation; and highly specific criteria that would be used to 
designate universities as part of a homeland security research system. 
A few of other provisions added by the House have merit, but they 
deserve an open debate. For example, I believe that we need to limit 
the liability of companies that make ``qualified anti-terrorism 
technology'' against claims arising from acts of terrorism, but this 
issue deserves more debate. We also ought to limit lawsuits against 
companies that manufacture aviation security equipment. It's 
unfortunate that these provisions, which may be perfectly worthy 
legislative remedies, have been slipped in to the bill without full 
consideration by Congress. I certainly hope each of these provisions 
will be revisited and fully debated next year.
  Again, I'm deeply disappointed by some special interest provisions 
that were added to the homeland security bill. However, I believe that 
the necessary creation of a Department of Homeland Security outweighs 
the special interest provisions added to this legislation and I am 
proud to aid in its creation. I'm casting my vote in order to serve the 
higher good of protecting the American people from present and future 
terrorist threats.
  Mr. LEVIN. Madam President, I am a strong supporter of creating a new 
department for homeland security, and I was glad to be able to 
cosponsor the bipartisan legislation that passed out of the 
Governmental Affairs Committee in July of this year. But this 
legislation, now, falls so short of the promise of that committee-
passed bill, that I am compelled to vote no. The legislation the Senate 
will pass tonight has numerous unrelated and inappropriate special 
interest provisions, omits numerous related and appropriate homeland 
security provisions, and fails to address probably the most central 
question to our security the coordination and sharing of information 
between the CIA and the FBI.
  The homeland security bill that we are debating today is a dramatic 
departure from the bipartisan legislation that passed out of the 
Governmental Affairs Committee.
  The new bill now has numerous provisions that no one had seen until 
the Thompson amendment was presented to the Senate late last week, and 
too many of the provisions have less to do with homeland security and 
more to do with the access of special interests.
  One of these provisions provides liability protection for 
pharmaceutical companies that make a mercury-based vaccine preservative 
that may cause autism in children.
  Another provision guts the Wellstone amendment, which would prohibit 
Federal agencies from contracting with corporations that have moved 
offshore to avoid paying their fair share of U.S. taxes--taxes that are 
used for important security agencies such as the FBI, Coast Guard, 
Customs Service, the INS, and the Border Patrol.
  Another provision provides an earmark to Texas A&M University for 
  At the same time the Thompson amendment added weakening and special 
interest provisions like these, it deleted important provisions that 
would enhance our homeland security--including a grant program for 
additional firefighters, a program to improve the security and safety 
for the Nation's railroads, and a program to improve information flow 
amongst key Federal and State agencies with responsibility for homeland 
security. The bill completely removes key areas that we had come to 
bipartisan agreement on at the committee level such as important 
language relative to foreign intelligence analysis and the Freedom of 
Information Act, FOIA.
  Finally, it hands the President a blank check with regard to so-
called reforms of the civil service.
  The over-reaching by the Republicans to include special interest 
provisions and to exclude strong bipartisan provisions is nothing less 
than shocking. The exclusion of strong bipartisan provisions addressing 
key issues with respect to homeland security is nothing less than 
dangerous to our security.
  Let's back up and look how we got to where we are today. Senator 
Lieberman initiated legislation to create a new Department of Homeland 
Security last year shortly after the September 11 terrorist attacks. We 
had hearings on the proposal and the first committee markup, and at 
that time, President Bush opposed the creation of a new Department. As 
a result, the vote to report the bill we reported from Governmental 
Affairs was along party lines, with all of the Democrats, including 
myself, voting for it and the Republicans voting against it.

  In the spring, President Bush changed his mind and put forth his own 
proposal for a new department. We in the Governmental Affairs Committee 
then worked on a compromise committee amendment, merging most of what 
the President wanted with the committee-passed bill. We reported that 
to the floor at the end of July. A great deal of time went into 
crafting that bill. Chairman Lieberman held 18 hearings on various 
issues dealing with homeland security. We had a two day mark-up; we 
considered dozens of amendments; and we passed the bill out of the 
Governmental Affairs Committee by a 12-5 vote. We ultimately came up 
with what I believe was a good bill.
  However, the bill before us today takes some major step backwards.
  For one, this bill muddles the issue of responsibility for foreign 
intelligence analysis at precisely the time we should be clarifying it. 
The intelligence issues we face are some of the most important issues 
in this reorganization. Many of us on the Intelligence Committee have 
been taking a

[[Page S11446]]

hard look at possible intelligence failures before 9/11. Whether or not 
these failures, if they hadn't occurred, could have avoided 9/11 could 
be the subject of endless speculation, and that is not the point. The 
point is, we need to do a better job of coordinating our intelligence. 
We need to give those who do coordinate our intelligence the resources 
that they need, and we need to better define their roles and 
responsibilities. The Governmental Affairs Committee passed bill 
contains language I offered with respect to the new Department's role 
in gathering and analyzing intelligence on possible terrorist attacks 
in the United States. My language clarified the intelligence gathering 
functions and assigned responsibility. The language in the Thompson 
amendment leaves the intelligence community without clearly defined 
roles and creates the possibility for unnecessary and costly 
duplication of efforts. We cannot afford that kind of situation post 9/
  Let me explain. Right now we have an office at the CIA called the 
Counter Terrorist Center or CTC, where all information, regardless of 
source, about international terrorism is sent and analyzed. Whether it 
is obtained overseas or in the U.S., the CTC is the central place for 
counter terrorism intelligence.
  The CTC, which has 250 analysts, receives 10,000 incoming 
intelligence reports a month about international terrorism from the 
State Department, Customs, local law enforcement, FBI, INS, and a range 
of other sources. Representatives from the FBI, Department of Defense, 
Department of State, Department of Justice and other agencies that are 
involved in collecting and receiving information about international 
terrorism, work at the CTC with CIA analysts. One of the questions we 
faced in the Governmental Affairs Committee was how the 
responsibilities of the new Department in terms of intelligence 
gathering and analysis related to the ongoing role of the CTC.
  My language in the Governmental Affairs passed bill kept the 
principal responsibility for analyzing information about international 
terrorism at the CTC. Under my language, the CTC would receive all 
foreign intelligence, regardless of source, and would be primarily 
responsible for its analysis. As defined by the National Security Act, 
50 U.S.C. 401(a), ``foreign intelligence'' is ``information relating to 
the capabilities, intentions or activities of foreign governments or 
elements thereof, foreign organizations, or foreign persons, or 
international terrorist activities.'' My language makes it clear that 
the principal responsibility for collecting and analyzing information 
about international terrorism would be at the CTC.
  Under the Committee-passed bill the new Department of Homeland 
Security would have a directorate of intelligence that would be 
responsible for the receipt and analysis of all information relating to 
acts of terrorism in the United States including the foreign 
intelligence analyses from the CTC, as well as information and analyses 
relating to terrorist activities of U.S. persons or organizations. The 
new directorate would be responsible for linking all that information 
and analyses to an assessment of vulnerabilities to acts of terrorism 
on U.S. soil.
  Under the Governmental Affairs Committee bill, the new Department 
would, therefore, not only be responsible for the domestic terrorism 
intelligence analyses, but it would fuse foreign intelligence analyses 
with the domestic intelligence analyses and obtain an assessment of 
vulnerabilities to terrorism existing in the U.S. In other words, the 
new Department would, as many have used the phrase, ``connect the 
dots''--intelligence analyses, foreign and domestic, and U.S. 
  By maintaining the role of the CTC in international intelligence and 
adding the role of the new Department in the overall analytical 
responsibility with respect to terrorism in the United States, we would 
avoid duplication and redundancy.
  The Thompson amendment includes language that would appear to 
duplicate the CTC at the new Department, and I cannot support that.
  Duplicating the responsibility of analysis of foreign intelligence 
would only waste valuable and limited resources and undermine our 
objective of getting the best counter terrorism intelligence we can 
get. According to the Congressional Research Service, the number of 
experienced and trained analysts ``tends to be in short supply.'' We 
just don't have the resources or the people to duplicate analyses of 
foreign intelligence. It is important not to duplicate the CTC's 
capability, but to strengthen it and keep the primary responsibility 
for the analysis of information about international terrorism, from 
wherever obtained, in one place.
  Another reason that I am voting against this bill is because the 
Bennett-Levin-Leahy compromise with respect to the Freedom of 
Information Act, a compromise that the administration supported at the 
Governmental Affairs Committee mark-up, is not in this bill.
  One of the primary functions of the new Department will be to 
safeguard the Nation's infrastructure, much of which is run by private 
companies. The Department will need to work in partnership with private 
companies to ensure that our critical infrastructure is secure. To do 
so, the homeland security legislation asks companies to voluntarily 
provide the new Department with information about their own 
vulnerabilities, the hope being that one company's problems or 
solutions to its problems will help other companies with similar 
  Some companies expressed concern that current law did not adequately 
protect the confidential business information that they may be asked to 
provide to the new Department from public disclosure under the Freedom 
of Information Act. They argued that without a specific statutory 
exemption they would be less likely to voluntarily submit information 
to the new Department about critical infrastructure vulnerabilities.
  We crafted a compromise to put into statute important protections 
established in case law. The resulting compromise would protect from 
public disclosure any record furnished voluntarily and submitted to the 
new Department that:
  First, pertains to the vulnerability of and threats to critical 
infrastructure, such as attacks, response and recovery efforts;
  Second, the provider would not customarily make available to the 
  Third, are designated and certified by the provider as confidential 
and not customarily made available to the public.
  The Bennett-Levin-Leahy compromise made clear that records that an 
agency obtains independently of the Department are not subject to the 
protections I just enumerated. Thus, if the records currently are 
subject to disclosure by another agency, they would remain available 
under FOIA even if a private company submits the same information to 
the new Department. The language also allowed the provider of 
voluntarily submitted information to change a designation and 
certification and to make the record subject to disclosure under FOIA. 
The language required that the new Department develop procedures for 
the receipt, designation, marking, certification, care and storage of 
voluntarily provided information as well as the protection and 
maintenance of the confidentiality of the voluntarily provided records.
  The Bennett-Levin-Leahy compromise is not included in the Thompson 
amendment. Instead, the bill cuts back on FOIA access by the public by 
expanding the type of information that the new department can keep from 
the public. The language in this bill could result in the issuance of 
rules by the new Department based on information not included in the 
rule making record. It could prevent the Federal Government from using 
critical infrastructure information in a civil suit seeking to protect 
public safety. Finally, the language in the Thompson amendment could 
result in a criminal penalty against a whistle blower who leaks the 
kind of information presented to the new Department on critical 
  The principles of open government and the public's right-to-know are 
cornerstones upon which our country was built. With this bill, we are 
sacrificing them in the name of protecting them. The Bennett-Levin-
Leahy compromise would have balanced the need between openness and 
security to protect these principles.
  I will also be voting against this bill because of the civil service 

[[Page S11447]]

that President Bush is calling ``flexibility'' but that I consider an 
unnecessary blank check. There are really two issues here, one concerns 
collective bargaining, and the other concerns the civil service in 
  Under existing law, the President can issue an executive order 
excluding any agency or subdivision of an agency from collective 
bargaining if it is involved in a matter of ``national security.'' For 
example, in January of this year, the President issued an executive 
order which took collective bargaining rights away from hundreds of 
Department of Justice employees, many of them clerical workers involved 
in civil issues under the label of ``national security.''
  But even without the national security exception, under current law, 
in an emergency, the new Department could waive collective bargaining 
rights, because under 5 U.S.C. 7106, ``nothing, in the chapter 
establishing collective bargaining rights, shall affect the authority 
of any management official of any agency . . . to take whatever actions 
may be necessary to carry out the agency mission during emergencies.'' 
In addition, current law prohibits federal employees from striking 
under any circumstances.
  The Thompson bill would allow the President to waive collective 
bargaining rights, whether or not there is an emergency, as long as he 
gives 10 days notice and sends a written explanation to Congress. This 
provision does not provide a standard under which the President's 
authority is to be exercised. So in the most extreme example, under 
this provision, the President could remove the collective bargaining 
rights of every single employee who was transferred into the new 
Department. That is unacceptable. What we tried to do in the 
Governmental Affairs Committee bill was to allow workers with 
collective bargaining rights transferred into the new Department to 
maintain those rights if their job descriptions did not change. Given 
the President's authority to act in an emergency under current law, I 
believe that protected our national security without unnecessarily 
trampling on rights of employees.
  The Thompson amendment also allows the Secretary of the new 
Department to alter civil service rules. If the Secretary does so, then 
the employee unions would have 30 days to review the changes and make 
recommendations to the Secretary. If the Secretary doesn't agree with 
those suggestions, he or she could declare an impasse and send the 
dispute to federal mediators. After another 30 days, the Secretary 
could go ahead with the changes, regardless of what the mediator 
suggests. The President argues that this process gives the unions a say 
in any changes, but the reality is that the unions have no real 
substantive remedy to the Secretary's proposed changes. No matter how 
much the employees and unions oppose the new rules, how much they fight 
against them, in the end, the Secretary has unilateral power to issue 
the rules under the Thompson amendment.
  I supported creating a Department of Homeland Security from the 
beginning--like many of my Democratic colleagues well before the 
President came on board. It's disheartening that the President and the 
Republican leadership couldn't accept the bipartisan bill reported by 
the Governmental Affairs Committee and work with that to develop a bill 
without the major flaws described above. It's also distressing indeed 
that the President and the Republican leadership chose to use the 
Homeland Security Department legislation as a vehicle for unrelated 
special interest legislation while leaving behind a number of very 
important security-related provisions.
  I would have been happy to stay here to work out the differences in 
this legislation and develop the strongest legislation possible. But 
with this vote, now, that is an impossibility. So, I hope in the next 
Congress to work with my colleagues who share my views on some of these 
provisions to make some needed changes to this legislation.
  Let me add one more thing about how far astray we have gone with this 
legislation. While the President has been holding out on passage of 
this legislation in order to get the authority to waive collective 
bargaining rights for employees at the new Department, the key agencies 
in the Federal Government that are at the front lines of protecting our 
homeland have gone underfunded in this fiscal year. According to the 
House Appropriations Committee Staff: while we have authorized $38 
billion for homeland defense, we have actually appropriated only $640 
million to the new Department and other agencies; while we have 
authorized an additional 200 immigration inspectors and 200 immigration 
investigators, to date we have appropriated no money for these 
positions; and while we have authorized $520 million for hospital 
emergency rooms, we have only appropriated $135 million. The Republican 
leadership in the House has failed to send us the appropriations bills 
for fiscal year 2003 that would increase funding for the Customs 
Service, the Border Patrol, the Coast Guard, the FBI, the CIA--all of 
the agencies we need to have additional resources to stave off or 
adequately respond to a terrorist attack. That is the unfortunate final 
chapter to this story. By not taking up the appropriations bills for 
next year, we are delaying the delivery of desperately needed dollars 
to the very agencies charged with protecting us from terrorist attacks. 
The misdirection of priorities involved is harrowing.
  Mr. KOHL. Madam President, today the Senate will finally pass a 
homeland security bill. This debate began in the Senate with Senator 
Lieberman's efforts in the Government Affairs Committee last Spring, 
and it ends today with the Senate left with no choice but to pass the 
House of Representative's version of the bill. This is an imperfect 
bill, and it has come to this point through an imperfect process. The 
desire to create a domestic agency capable of protecting Americans from 
terrorism is bipartisan--even universal. Unfortunately, the creation of 
the bill to do that has been partisan and destructively political.
  Few of us have had a chance to consider this new proposal carefully. 
And what we have found has not been encouraging. The House version of 
the homeland security bill includes too many special interest 
provisions slipped in at the last minute. The Daschle-McCain amendment, 
which I supported, would have eliminated the most egregious of these, 
but the Senate narrowly rejected it. It is shameful that some used this 
vital Government reorganization legislation to pay back unrelated 
political debts.
  I also must go on record strongly in opposition to the bill's 
provisions on Federal employees and their rights to organize a union 
and exercise their rights as members of a union. The President's 
authority to manage the Federal workforce has never been an issue 
before now. No one claimed that if the President had more flexibility 
over the Federal workforce that the September 11 attacks would have 
been avoided or that new work rules would have made it easier for the 
CIA and FBI to exchange information. Again, these unprecedented 
restrictions on workers' rights were inserted in must-pass legislation. 
Again, it is shameful that this vehicle was used to pursue a political 
  The House bill, however, at its core does take some needed steps to 
make us all safer. The United States must better focus its counter-
terrorism efforts if we are to avoid future attacks. Too many agencies 
and organizations inside the Government share responsibility for 
responding to terrorism domestically. The old saying has been quoted on 
the floor many times during this debate, but is worth doing it one more 
time: ``When every one is in charge--no one is in charge.'' By making 
one Cabinet level agency in charge of Homeland Security we will have 
only one person in charge. The bureaucracy underneath the Secretary 
will have only one unifying priority. The advantages of that change 
cannot be overestimated.
  However difficult the crafting of the homeland security legislation 
has been, it was the easy part. Now we face the difficult and 
monumental task of actually putting the parts together into a whole 
greater than its sum. The offices that make up the Department of 
Homeland Security cannot forget the other important missions they 
perform. Organizations like the Coast Guard and the Animal and Plant 
Health Inspection Service have valuable missions outside of their 
homeland security function that cannot be overlooked.

[[Page S11448]]

  The Congress's work on homeland security should not stop here. As the 
transfer of offices begins, there will no doubt be changes necessary. 
Congressional oversight is more important now than ever. With this bill 
Congress has decided that the Executive Branch needs to take homeland 
security more seriously. But Congress needs to take it seriously, too. 
That means giving up our short-term political games in order to work 
together--Republican and Democrat, White House and Congress--to build a 
bipartisan, functioning agency that will deliver all Americans the 
security they deserve.
  Mr. KERRY. Madam President, since September 11, 2001, many in 
Congress have been assiduously working to create a Department of 
Homeland Security, and I am pleased that today we are finally 
completing our work. After the terrorist attacks on New York and 
Washington it became clear that to thwart future attacks on the United 
States the Federal Government would have to do a better job gathering 
and coordinating intelligence. Since September 11 I, along with several 
colleagues, have believed that a reorganization of the Federal 
Government is critical to improving the security of this country. 
Though the President and many Congressional Republicans initially 
opposed this major reorganization, there is now consensus on the need 
to create a new department.
  It is imperative that we move quickly and urgently to reorganize the 
Federal Government. Vulnerabilities exist in our homeland security 
infrastructure and we should not squander a single day addressing them. 
An independent task force, chaired by former Senators Gary Hart and 
Warren Rudman, recently advised that ``America remains dangerously 
unprepared to prevent and respond to a catastrophic attack on U.S. 
soil.'' There is also new evidence that Osama bin Laden is alive and 
recently recorded an audio tape. We must act now to create this agency 
and to ensure that the United States Government is doing everything in 
its power to better protect its borders, coasts, cities, and towns.
  The Transportation Security Agency continues to play a vital role in 
our domestic security policy under this legislation. At no time in our 
Nation's history has increased security for our transportation 
infrastructure been as critical, and I am confident that as part of 
this new department the TSA will perform up to task and help ease the 
fears many Americans have concerning the safety of our airports, 
trains, and ports.
  The legislation also address the impending baggage screening 
deadline. Although the Congress mandated a December 31, 2002 deadline 
for screening all baggage at airports, deploying and installing the 
necessary devices for the over 400 airports has proved to be a 
monumental challenge and it is clear that many airports are unable to 
meet this requirement. I am pleased that this legislation includes a 
common sense provision to extend the deadline for the major airports 
and strictly monitor their progress in screening baggage. The extension 
through December 31, 2003 will also give the TSA more time to properly 
train and deploy the 22,000 federal baggage screeners necessary to 
staff the devices and oversee the screening process. Rushing this 
process in anticipation of the deadline would have seriously 
compromised the effectiveness of the enhanced security measures.
  Also included in this legislation is a provision that will allow 
financially strapped airlines to purchase ``war risk'' insurance from 
the Government at a reasonable cost, alleviating some of the costs the 
industry has incurred after September 11. This provision is critically 
important, as many airlines have been forced to spend upwards of $100 
million to insure their planes against war and the continued threat of 
terrorism. Tens of thousands of aviation workers have lost their jobs 
because of the financial crisis in the industry. It is my hope that 
Government issued insurance will help expedite the recovery of this 
important sector of our economy.
  As Chairman of the Oceans, Atmosphere and Fisheries Subcommittee, 
which has jurisdiction over the Coast Guard, I want to make a few 
comments about the Coast Guard provisions in the legislation. The Coast 
Guard is comprised of approximately 36,000 military personnel, roughly 
the size of the New York City Police Department. Recently passed 
legislation will expand the Coast Guard to 45,500 military personnel by 
the end of this fiscal year. Expansion is important to homeland 
security when you consider that the Coast Guard must patrol and protect 
more than 1,000 harbor channels, and 25,000 miles of inland, intra 
coastal, and coastal waterways that serve more than 300 ports. The 
Coast Guard is also responsible for a number of non-homeland security 
missions such as search and rescue, maintaining aids to navigation, 
marine safety, marine environmental protection and fisheries law 
  I am pleased that this legislation does not split up the Coast Guard. 
The Coast Guard is a multi-mission agency with personnel and assets 
that are capable of performing a variety of missions with little or no 
notice. The legislation preserves this flexibility by keeping the Coast 
Guard in tact. In addition the bill ensures that the Coast Guard 
receives the proper attention it deserves in the new Department by 
requiring the commandant of the Coast Guard to report directly to the 
new Secretary. The commandant has this authority within the Department 
of Transportation, clearly he should have the same authority in the 
Department of Homeland Security.
  Since September 11, the Coast Guard has had to divert resources from 
its non-homeland security missions in order to beef up homeland 
security. I asked the General Accounting Office to document the change 
in Coast Guard missions since September 11 and to make recommendations 
on how best for the Coast Guard to operate under the ``new normalcy'' 
post September 11. The GAO just released its report and they note that 
many of the Coast Guard's core missions, including enforcement of 
fisheries and other environmental laws, are still not back to pre-
September 11 levels. The GAO recommends that the Coast Guard develop a 
long-range strategic plan for achieving all of their missions, as well 
as a means to easily monitor progress in achieving these goals.
  Many of us are concerned, that the traditional non-homeland security 
missions of the Coast Guard will suffer once the agency is transferred. 
In response to these concerns this bill contains safeguards that will 
ensure that non-homeland security missions will get done. I look 
forward to working with the Coast Guard to ensure these missions are 
getting done. Search and rescue, oil spill response and fisheries law 
enforcement are important and we cannot afford to ignore or under fund 
these missions.
  This bill also includes a study on accelerating the Integrated 
Deepwater System, a long overdue modernization of Coast Guard ships and 
aircraft that operate off-shore in the deepwater environment. The Coast 
Guard is operating World War II-era cutters in the deepwater 
environment to perform environmental protection, national defense, and 
law enforcement missions. Coast Guard aircraft, which are operated in a 
maintenance intensive salt water environment, are reaching the end of 
their useful lives as well. Besides high operating costs, these assets 
are technologically and operationally obsolete. The Integrated 
Deepwater System will not only reduce operational and maintenance 
costs, but will significantly improve upon current command and control 
capabilities in the deepwater environment. I support this study. I look 
forward to reviewing the results of this study next year and if 
acceleration makes sense, supporting that well.

  While I support much of what this legislation does and while I 
believe we should quickly move forward to create the Department, I have 
serious concerns with particular provisions of the bill. First, I am 
extremely disappointed that this legislation provides the 
administration with the authority to rewrite civil service laws without 
guaranteeing that Federal workers will receive fair treatment without 
regard to political affiliation, equal pay for equal work, and 
protection for whistleblowers. The hallmark of civil service is 
protection from political influence through laws designed to ensure the 
independent hiring, promotion, and firing of employees based 
exclusively on merit. And by allowing the administration to rewrite the 
civil service laws

[[Page S11449]]

without guaranteeing these protections and without meaningful labor 
union participation, we are putting these important protections at 
  I am also troubled by a provision in this legislation that gives the 
President essentially unfettered discretion to forbid Department of 
Homeland Security employees to belong to unions if he determines that 
is necessary not only for the interest of national security but also to 
protect the Department's ability to protect homeland security. I do not 
object to working to reform how government operates, to make it easier 
to manage and more effective. But what has been proposed in this 
legislation is not an improvement in the system, it just takes rights 
away from workers.
  One of the most troubling provisions in this legislation deals with 
protecting critical infrastructure information that is voluntarily 
submitted to the Department, a worthy goal and one that I strongly 
support. After all, companies will be unwilling to turn over 
information about possible vulnerabilities if doing so would make them 
subject to public disclosure or regulatory actions. To encourage 
companies to provide this valuable information to the Department, the 
legislation would exempt the information from public disclosure under 
the Freedom of Information Act. The reason for my concern, is that the 
definition of information is so broad that it could include any 
information that a company turns over to Department of Homeland 
Security. What this means is that information that is currently 
available to the public would be barred from release if it is labeled 
by the company as critical infrastructure. One can easily imagine a 
company turning over incriminating documents to the Government so that 
it would not be accessible by anyone else. I am discouraged by 
inclusion of this provision, because earlier in this debate we 
developed a compromise that more narrowly defined what information 
could be exempt from FOIA, one that protected critical infrastructure 
information without opening up a loophole for companies to avoid 
Government regulation and public disclosure.
  I am concerned by how the Immigration and Naturalization Service will 
be treated in the new Department under this legislation. For years the 
INS has been badly in need of reform and it seemed that creating the 
Department of Homeland Security would provide an opportunity to make 
improvements in enforcement and provide better visa and processing 
services. Under the Lieberman proposal to create the Department of 
Homeland Security, there was an Under Secretary for Immigration Affairs 
who would act as a central authority to ensure a uniform immigration 
policy and provide effective coordination between the service and 
enforcement functions. The Republican legislation unfortunately does 
not include an elevated immigration function headed by one under 
secretary, and instead buries the immigration enforcement function 
within the ``Border and Transportation Security'' division and places 
the immigration services function with the Deputy Secretary of Homeland 
  There is no easy split between border enforcement and services. For 
example, countering schemes for wrongful entry is not just a border 
challenge, it requires close coordination among all units within 
immigration responsibilities. Both functions rely on shared information 
and intelligence. I am afraid, that with two people interpreting 
immigration law and policy there are likely to be conflicting 
interpretations, a situation that could exacerbate the current 
coordination and communications problems that exist within INS.
  I am extremely concerned that this legislation includes liability 
protections inserted by the House for manufacturers of anti-terrorism 
technology and childhood vaccines. The new provisions allow the 
Secretary to designate equipment and technology used by the Department 
as official ``anti-terrorism technology.'' In the event of a terrorist 
attack this designation will prevent injured parties from seeking 
compensation against manufacturers of such technology, even if a 
manufacturer exercised gross negligence in marketing its product. The 
same is true for manufacturers of childhood vaccines who will be exempt 
from liability if a child dies or sustains injury as a result of 
negligence stemming from the inclusion of a ``component or ingredient'' 
in any vaccine listed under the Vaccine Injury Table. This provision is 
absolutely unconscionable. We should not give manufacturers an 
incentive to experiment with questionable formulas or risky ingredients 
for vaccines which are intended to immunize children from disease. 
Likewise, we should not give manufacturers of anti-terrorism 
technologies any incentive to sell a product they know to be below par.
  Another provision added by the House would remove Senate-approved 
legislation to bar Government contracts with corporations that have 
moved their headquarters offshore to avoid U.S. taxes. The Republicans 
say that this provision will unnecessarily interfere with our national 
security. Well, I believe that it also affects our national security 
when corporate use of tax havens and loopholes is at an all-time high. 
Various estimates show that this sort of tax evasion is costing the 
government tens of billions of dollars a year which means that tax 
burdens must be higher on law-abiding citizens and small businesses 
that pay by the rules. To remove this sound provision at the last 
minute is not only bad policy, it also insults the memory of Senator 
Wellstone, who worked so hard to ensure that this provision was passed.
  Despite my concerns with particular provisions in this legislation, I 
do support the creation of the Department of Homeland Security and 
believe it is an important element in our efforts to protect the 
American people from terrorism.
  Mr. CRAPO. Madam President, providing for homeland security and 
securing our Nation against the threat of terrorism must continue to be 
our foremost challenge. However, many of my Senate colleagues and I 
recognize the budgetary strains caused by the mounting expenditures of 
our limited resources--and the potential future costs--of responding to 
the multiple and varied threats of terrorism. Our State, county, and 
local agencies are struggling to fund the prevention and mitigation of 
every imaginable attack on our citizens and our critical 
infrastructure. Further, providing multi-million dollar allocations at 
the Federal level to prevent or mitigate all perceived threats to 
homeland security, or to respond to each terrorism incident, could in 
itself bankrupt our national economy.
  The best management decisions at all levels of Government and 
industry on allocating scarce resources to the war on terrorism need an 
effective analytical approach to help understand the risks and to help 
improve the strategic and operational decisions to address those risks. 
Most current approaches to analyzing the ``terrorist threat'' are 
limited to addressing the vulnerability of--or what will happen to--
critical infrastructure if it is attacked. These ``vulnerability 
analyses'' generally produce long lists of security-related 
deficiencies and equally long checklists of expensive things to do to 
correct the deficiencies, but they do not help communities 
appropriately allocate scarce resources, people, time, and money, in 
the context of an organization's strategic-level goals and objectives. 
A more robust approach is needed to support decision-making, one that 
can enable Government officials and private company executives to 
characterize the risks of rare, high-consequence events; to identify 
those that pose the greatest threats; and to best evaluate mitigation 
  Mr. GRAHAM. Would Senator Crapo yield a minute of his time?
  Mr. CRAPO. Yes.
  Mr. GRAHAM. Recognizing the need for better decision support, the 
leaders of Miami-Dade County established late last year a team 
comprised of representatives from the departments of police, fire, 
emergency management, general services, computer and communications 
services, seaport, aviation, and administration. They were tasked to 
work in concert with a consultant and a national laboratory to develop 
a process for defining, identifying, and evaluating physical and 
cyberterrorism threats and vulnerabilities; developing a consistent 
basis for making meaningful comparisons among risks to county assets so 
that the most important risks can be addressed first; using the 
structure of the process to develop strategies and associated tactics 
for mitigating threats and vulnerabilities; and

[[Page S11450]]

prioritizing mitigation activities so that the biggest gains for the 
resources spent are implemented first, resulting in the fastest 
possible reduction in risk for the limited resources available, 
including not only dollar resources, but the key resources of people 
and time. The initial work of the team, a pilot project, has been 
successfully completed, and it has generated considerable interest both 
in Florida and in Washington.
  Mr. DURBIN. Would Senator Graham yield a minute of his time?
  Mr. GRAHAM. Yes.
  Mr. DURBIN. Argonne National Laboratory, The DecisionWorks, Inc., 
Idaho National Engineering and Environmental Laboratory, and Miami-Dade 
County would like to build upon the results of the pilot project to 
fully develop and to implement a comprehensive, risk-based 
prioritization process that decision-makers could use to allocate 
scarce national, State, and local resources to the War on Terrorism. 
The development of this risk-based prioritization process would be 
based on the methodology and results of the successful pilot project, 
and the capability developed in the original pilot would be further 
enhanced by the physical security, cybersecurity, critical 
infrastructure, homeland security, decision analysis, and systems 
engineering expertise resident in the project team.
  Specifically, the purpose of the proposed risk-based prioritization 
program for Homeland Security would be to develop and deliver a process 
for helping decision-makers in both the public and private sectors to 
assess the likelihood of a successful terrorist attack on critical 
infrastructure and other assets; to understand the safety, economic, 
and other consequences of a successful attack; to formulate and 
evaluate alternatives for reducing or mitigating the risk of a 
successful attack; and to select a portfolio of alternatives that 
prioritizes the allocation of scarce resources to meet the threat of 
terrorism. Using risk-based prioritization to manage non-traditional 
risks like terrorism would have four important benefits. It would 
provide an objective, defensible method for deciding how to allocate 
resources, people, time, and money, across all risks and organizational 
units. It would align resource allocations with an organization's 
strategic objectives and its willingness and capacity to accept risk. 
It would provide a way to evaluate the costs and benefits associated 
with various alternatives for mitigating risk, from physically removing 
the source of risk to actively retaining the risk internally. It would 
improve the quality and relevance of information available to managers 
at all levels of the organization.
  Mr. CRAPO. Would Senator Durbin yield a minute of his time?
  Mr. DURBIN. Yes.
  Mr. CRAPO. The original amendment that Senator Lieberman submitted to 
the underlying bill, H.R. 5005, to establish the Department of Homeland 
Security, contained a section that would have established an Office of 
Risk Analysis and Assessment within the Directorate of Science and 
Technology. Recognizing the successes of this Miami-Dade County pilot 
project and the tremendous contribution that a comprehensive, risk-
based prioritization process that decision-makers could use to allocate 
scarce national, State, and local resources to the War on Terrorism, 
Senator Durbin and I offered an amendment that would have enhanced and 
strengthened this risk assessment function. This amendment would have 
required the Department of Homeland Security to establish a 
comprehensive, risk-based process for prioritizing and allocating the 
Federal, State, and local activities and resources necessary to combat 
terrorism and to provide for homeland security response. It also would 
have authorized $15 million in appropriations for Fiscal Year 2003, and 
such sums as necessary in subsequent years, for the development of the 
risk-based prioritization process. Unfortunately, the current version 
of the Homeland Security Act before the Senate does not contain our 
  Mr. DURBIN. Would Senator Crapo yield a minute of his time?
  Mr. CRAPO. Yes.
  Mr. DURBIN. Although our amendment was not included, clearly the 
risk-based prioritization process we have described has significantly 
benefitted the local community in which it has been tested. Would 
Senator Thompson concur that a comprehensive, risk-based process for 
prioritizing and allocating the Federal, State, and local activities 
and resources necessary to combat terrorism and to provide for homeland 
security response should be given serious attention by the new 
Department of Homeland Security?
  Mr. THOMPSON. Would Senator Durbin yield a minute of his time?
  Mr. DURBIN. Yes.
  Mr. THOMPSON. As ranking member on the Senate Governmental Affairs 
Committee, I appreciate your bringing this project to the committee's 
attention. I am confident that the Department of Homeland Security will 
give it fair consideration when reviewing grant applications in the 
coming years.
  Mr. CRAPO. Senator Durbin, Senator Graham, and I thank the Senator 
for his consideration and support.
  Mr. HATCH. Madam President, it has long been obvious that homeland 
security was the most critical issue facing our nation today. I am 
pleased and proud to speak today on the compromise that this body has 
struck to approve of this measure through landmark legislation. We are 
finally in a position to give the President the tools he needs to fight 
the war against terrorism with every resource that this great nation 
can muster. Our country will be safer because of the enormous hard work 
and patriotism shared by members on both sides of the aisle.
  The final bipartisan compromise is something that we can all be proud 
of. It incorporates a crucial compromise on labor rights. I always have 
believed that the President must be given the ability to hire and 
retain the very best people to do the work of keeping our country safe. 
While the final version of the bill gives the President sufficient 
flexibility to effectively manage the employees in the new Department 
of Homeland Security, it also provides sufficient procedures to protect 
the rights of workers. This strikes, in my view, an appropriate 
  I also am pleased to note that the bill maximizes the new 
Department's ability to take advantage of the tremendous resources and 
expertise of America's private sector. It is perfectly clear that 
America's businesses will play a vital role in enhancing our nation's 
security. Private businesses, after all, own and operate most of our 
infrastructure, and provide most of the cutting edge technologies that 
will support our nation's defense efforts. The bill helps the private 
sector help our nation by crafting some reasonable protections from 
frivolous tort litigation, and such a measure will ultimately save 
  This legislation incorporates my proposal to stiffen the criminal 
penalties for cyberterrorism and to provide law enforcement agencies 
with new tools to use in emergency situations involving immediate 
threats to our national security interests. The cyberterrorism section 
of the bill also provides statutory authorization for the Office of 
Science and Technology located within the National Institute of Justice 
of the Department of Justice. The bill strikes language, contained in 
earlier versions, that would have provided OST to be ``independent of 
the National Institute of Justice.'' Accordingly, I understand subtitle 
D to place operational authority over OST--as authorized by the bill--
in the NIJ Director in the same manner and to the same extent that the 
NIJ Director currently exercises over OST--as it currently exists--and 
that the NIJ Director's authority over grants, cooperative agreements, 
and contracts for science and technology research and development, and 
the publications that disseminate the results of that research and 
development remain unchanged by this bill. Furthermore, I wish to make 
clear that I do not understand the administrative language in the bill 
that provides that certain publications decisions ``shall rest solely'' 
with the Director of the Office to affect the bill's overarching--and 
controlling--provision that expressly places the new Office ``under the 
general authority of the Assistant Attorney General.''
  The bill likewise incorporates a drastic reorganization of the 
Immigration and Naturalization Service, abolishing the INS as it 
currently exists and separating the enforcement and service 
responsibilities within the new Department. This new structure 

[[Page S11451]]

the importance of both functions, allows for coordination, and confers 
appropriate funding and management to both enforcement and services. 
This top-to-bottom reorganization of INS is something that numerous 
members of the Judiciary Committee have worked tirelessly with me to do 
and to do right. The Homeland Security Bill also includes a valuable 
provision that will significantly reduce the availability of explosives 
to certain prohibited persons, including terrorists and felons. Senator 
Kohl and I have worked hard on this provision, which will improve law 
enforcement's ability to track explosives purchases and help prevent 
the criminal use and accidental misuse of explosives materials.
  I want to conclude by taking a moment to discuss the ban on the TIPS 
program that was inserted in the final version of the Homeland Security 
Bill. Let me make clear that none of us wants an Orwellian version of 
Big Brother watching over us at all times. I made my own concerns on 
this issue very clear to Attorney General Ashcroft during an oversight 
hearing a few months ago, as did other members of the Judiciary 
Committee. I was concerned, for example, that the Department would keep 
a historical database of such information, but the Attorney General 
assured the Committee that this would not occur. Since then, I have 
been gratified to learn that the Attorney General has taken our 
concerns to heart, implementing fundamental changes to the program that 
are designed to protect our privacies in a balanced manner. In fact, 
the Department of Justice now has committed to not include within the 
TIPS program any workers, such as postal or utility workers, whose work 
puts them in contact with homes and private property.
  I think all of us can agree that some type of voluntary reporting 
program that permits but does not require concerned citizens to report 
information is appropriate. This is, of course, exactly what drives the 
highly successful results obtained by the popular TV program, 
``America's Most Wanted.'' In fact, John Walsh, the host of that 
program, has publicly endorsed the concept of a TIPS program. Moreover, 
I fully support the Amber Alert Program, which was created in 1996 
after a 9-year-old girl, Amber Hagerman, was kidnapped and murdered in 
Texas. This program is a voluntary partnership between law-enforcement 
and broadcasters to create a voluntary reporting program in child-
abduction cases. The Amber Alert system recently led to the rescue of 
two teenage girls who were abducted in California; an anonymous tip 
from a motorist who responded to the program ultimately led to the 
girls' safe return. I am so convinced of this program's effectiveness 
that I recently co-sponsored legislation to create a national Amber 
Alert system.
  In sum, we need to structure the TIPS program in a way that is 
responsible and effective. We do not want big government to enlist 
millions of Americans to snoop into the daily affairs of ordinary 
citizens. But, just as importantly, we need to provide an avenue for 
citizens to voluntarily alert law enforcement when they see things that 
cause them concern. It very well may be the case that the next 9/11 is 
averted because an accountant out walking his dog sees something 
unusual in his neighborhood park. We need to let that person know who 
he can call to report that information. As the Chairman-designate of 
the Judiciary Committee, I think that we will need to consider what 
type of voluntary reporting system would be acceptable to meet the real 
concerns posed by terrorist activity when we return for the 108th 
  We have debated this measure for many days now. I am delighted that 
we have finally--and successfully--come to the end of the road. By 
passing this legislation, we are taking a big step forward in helping 
to defend our nation from terrorism. I support the final compromise 
version of the Homeland Security Bill and hope that all of my 
colleagues will do the same.
  Mr. GRASSLEY. Madam President, I rise today to support the Homeland 
Security Act of 2002, but must register my disappointment with the 
scope of this bill's ban on granting Federal contracts to corporate 
  In October of this year, Senator Baucus and I introduced the 
Reclaiming Expatriated Contracts and Profits, RECAP, Act to address the 
issue of inverting corporations that are awarded contracts by the 
Federal Government. Inverting corporations set up a folder in a foreign 
filing cabinet or a mail box overseas and call that their new foreign 
``headquarters.'' This allows companies to escape millions of dollars 
of federal taxes every year. In April of this year, Senator Baucus and 
I introduced the Reversing the Expatriation of Profits Offshore, REPO, 
Act to shut down these phony corporate inversions. Today, our REPO bill 
has still not been enacted by the Senate.
  You would think that the ``greed-grab'' of corporate inversions would 
satisfy most companies, but unfortunately it is not enough. After these 
corporations invert and save millions in taxes, they then come back 
into the United States to obtain juicy contracts with the Federal 
Government. They create phony foreign headquarters to escape taxes and 
then use other peoples' taxes to turn a profit.
  Chairman Baucus and I offered our bipartisan RECAP bill as a 
complement to our earlier REPO bill on corporate inversions. For future 
corporate inversions, our RECAP bill will bar the inverting company 
from receiving Federal contracts. For the inversions that have already 
gotten out before the REPO bill can be enacted, our RECAP bill will 
make them send back their ill-gotten tax savings by forcing them to 
lower their bids in order to obtain Government contracts.
  Unfortunately, the Government contracting ban in the Homeland 
Security Act of 2002 only applies prospectively to a narrow band of 
inversions where 80 percent of the shareholders are the same before and 
after the inversion. The homeland security ban bill does not address 
the broader range inversion transactions involving less than 80 percent 
of the shareholders. It also does not touch inverters that have gotten 
out under the wire. This omission allows companies which have already 
inverted to avoid millions in U.S. taxes while easily reducing their 
taxable profits from Federal contracts by creating phony deductions 
through their inversion structures. This failure to address inverted 
companies gives them an unfair cost advantage over competing Federal 
contractors that choose to stay and pay in the U.S.A.
  So let me be clear. The Government contracting ban in the homeland 
security bill is merely a down payment on this issue, and it isn't good 
enough for me. The Homeland Security ban isn't half a loaf--it's barely 
two slices of bread. So to everyone developing or contemplating one of 
these inversion deals, you proceed at your own peril. We will continue 
to pursue corporate expatriation abuse, and the abusers who seek fat 
Government contracts while skirting their U.S. tax obligations. I will 
continue this issue in the 108th Congress and beyond. I look forward to 
enlisting the support of my colleagues with the Committee on 
Governmental Affairs as we march forward to shut down this abuse in all 
its forms.
  Mr. BIDEN. Madam President, like many important decisions in the 
Senate, we are today faced with something of a Hobson's choice. I agree 
that the consolidation of agencies currently responsible for securing 
the homeland will, if done right, result in greater security for the 
Nation and I support establishing a Department of Homeland Security. 
But, in my view, it would be better for us if we were implementing this 
massive government reorganization more gradually. We are shifting close 
to 200,000 workers under the new homeland security umbrella in this 
bill, and it would make more sense to do so in stages. Here we are 
trying to do too much at once and, if history is any guide, we will be 
back at this department many, many times in the years to come with 
amendments designed to fix what we enacted in haste this year.
  What we are left with is the choice of doing nothing, or taking the 
next best option of passing this bill and launching a new Federal 
agency. After careful thought, I come to the conclusion that passing 
this flawed bill is better than doing nothing. Consider our current 
structure. Today, homeland security responsibilities are spread among 
over 100 different government agencies. The structure of the Treasury 
Department provides a good example of the problem. That agency houses 
the U.S. Customs Service, an agency tasked with

[[Page S11452]]

monitoring the shipping containers that come into our country. Keeping 
the Customs Service in the agency concerned primarily with fiscal 
matters makes little sense when Customs' primary mission should know be 
safeguarding those imports. Or consider the Coast Guard, an agency in 
charge of patrolling our borders. The Coast Guard currently reports to 
the Secretary of Transportation. The Immigration and Naturalization 
Service is tasked with enforcing our immigration laws and securing our 
borders, yet its director reports to the Nation's chief law enforcement 
officer, the Attorney General. These examples are just the beginning. 
The need for reorganization is clear.
  Modern management principles teach that the agencies and functions of 
government should be grouped together based on their major purposes and 
missions, and the bill before us accomplishes that goal. Once it is 
fully implemented, the Department of Homeland Security will be the one 
Federal agency with the responsibility of securing our borders, 
safeguarding our transportation systems, and defending our critical 
infrastructures. One agency will be charged with synthesizing and 
analyzing intelligence related to homeland security. One agency will be 
responsible for equipping and training the police officers, 
firefighters, and emergency medical technicians who are often the first 
to respond to a terrorist incident.
  These are constructive organizational changes, ones that I am hopeful 
will help us better defend the country against attack. But should we be 
rushing their implementation without thoughtful consideration? During 
debate on this measure I voted in favor of an amendment offered by 
Senator Byrd that would have required the Congress and the 
Administration to work together to develop a staged implementation of 
the new homeland security agency, an implementation far more deliberate 
than the one we consider today. I am sorry Senator Byrd's amendment was 
not adopted.
  Without Senator Byrd's approach, I fear we are doing things in 
reverse and I predict we will have to revisit this new Department's 
structure several times before we get it right. The government 
reorganization most similar to the one we consider today provides a 
guide. In 1947, we enacted the National Security Act and created the 
Department of Defense, the Central Intelligence Agency and the National 
Security Council. That approach still had to be revisited several more 
times, in 1949, 1953, 1958, and 1986, to perfect the structure.
  Given the choice we now face, between the current state of homeland 
security disorganization and this bill's approach, I am forced to vote 
in favor of the bill. I do so with the understanding that vigorous 
congressional oversight of the new agency will be critical to insure it 
is not only accomplishing its primary mission of protecting our Nation 
but also to guarantee that the vast new authorities we give to the 
President here are not abused.
  I will be watching to see if the administration abuses its authority 
over workers in this new Department. We must be wary of the potential 
politicization of our workforce. The employees of the new Department 
must be highly dedicated professionals, free from political pressure. 
We must be certain that the most expert and experienced employees are 
free to speak their minds and to act quickly and aggressively to defend 
our national security. They must not be looking over their shoulders, 
concerned about the ins and outs of Washington politics. They must be 
safe from the kinds of influence that could cause them to slant their 
analysis or trim their opinions to fit what is popular. I will be 
watchful that the employees of the new Department are free from the 
threat of political retaliation, and secure in their jobs so that they 
can perform their important tasks to the highest professional 
  I support the creation of a Department of Homeland Security, and I 
will vote in favor of this bill today. The increased coordination and 
communication that may result from the new governing structures created 
in this bill could, if properly implemented, provide the Nation with 
vastly improved security. But because of the speed with which we 
considered this proposal, the rapid, sweeping reorganization it 
immediately envisions, and the prospect for abuse in several of its 
provisions, I fear this bill will need to be revisited several times 
and its implementation will need to be closely monitored by Congress if 
we hope to get it right. I will be closely watching the new agency's 
creation, and I hope each of my colleagues does the same.
  Mr. DASCHLE. Madam President, we are finally about to vote on a bill 
to create a new Homeland Security Department. Many Senators worked long 
and hard to get us to this point. But one man was indispensable. He is 
the chairman of the Senate Government Affairs Committee, Joe Lieberman. 
Under his leadership, the Government Affairs Committee held its first 
hearing on homeland security 10 days after September 11. It was at that 
hearing that former Senators Warren Rudman and Gary Hart, the co-chairs 
of a bipartisan blue-ribbon commission, shared their recommendation 
that the Government should create a permanent, cabinet-level Department 
to protect the American people from terrorism. Three weeks later, on 
the one-month anniversary of September 11, Senator Lieberman announced 
his plan to create such a department. He had the vision to see what 
needed to be done and the patience and flexibility to work through 
disagreements and come up with workable, bipartisan alternatives. He 
also had the courage to stand his ground for months while the President 
threatened to veto any Homeland Security bill. I also want to thank 
Democrats on the Governmental Affairs Committee for standing with 
Chairman Lieberman.
  There are some who would like to rewrite the history of this effort. 
They want the American people to believe that Democratic opposition is 
the reason it has taken this long for Congress to pass a Homeland 
Security bill. That is simply not so. Creating a Homeland Security 
Department was a Democratic idea to begin with. It was disturbing to 
see that truth twisted in the recent campaigns. There are some who are 
threatening publicly to try to exploit homeland security again for 
partisan political advantage in the Louisiana Senate race next month. 
For the sake of our Nation, I hope they do not. Our war is with 
terrorism, not each other.
  In the months since Senator Lieberman introduced his bill, we have 
heard countless chilling reasons why a Homeland Security Department is 
needed. We have heard about dots that were not connected, intelligence 
reports that weren't shared and urgent warnings that were not heeded. I 
will vote for this bill because I believe a Homeland Security 
Department is right and necessary. I have thought so for more than a 
year. But we need to be honest with the American people about what this 
  I am very concerned about what I fear are false hopes and false 
assurances being given by some of those who came late to this cause.
  Many of the same people who claimed just a few months ago that 
creating a Department of Homeland Security would detract from the war 
on terrorism now seem to want the American people to believe that 
creating this Department will solve the war on terrorism. They seem to 
want people to believe that, once we pass this bill, there is nothing 
else that needs to be done--no other changes that need to be made--to 
prevent another September 11. This is worse than wishful thinking. It 
is dangerous thinking. And it is not true.
  Reorganizing parts of our Government in order to better connect the 
dots is only part of the solution. A much greater and far more 
comprehensive effort is still needed to protect America from terrorism. 
That effort will be difficult, it will be complicated, it will be 
costly. To pretend otherwise is a disservice to the American people.
  Our public health system is still dangerously under-prepared for the 
possibility of future biological or chemical attacks. Our borders are 
still not secure as they need to be. Neither are our seaports; we still 
search only 2 percent of the roughly 6 million containers that are 
unloaded every year at America's ports. The U.S. has 150,000 miles of 
train track plus rail yards, bridges, tunnels, and switches that are 
all still vulnerable to terrorist attacks. This bill does not provide 
the resources to

[[Page S11453]]

secure them. Our food supply--domestic and imported--remains highly 
vulnerable to biological attacks. This bill does not change that fact.
  A study last year by the Army Surgeon General warned that a terrorist 
attack on a toxic chemical plant in a densely populated area could kill 
2.4 million people. There are more than 120 such plants in America. 
Even after we pass this bill, those plants will remain vulnerable to 
terrorist attacks. The Department of Energy estimates that there are 
603 tons of weapons-grade material inside the former Soviet republics--
enough to build 41,000 nuclear weapons. So far, only about a third of 
this material has been properly secured. This bill alone won't keep 
that deadly material out of the hands of terrorists who want to use it 
to build ``dirty bombs.'' Last year, the President's budget cut the 
programs that safeguard weapons of mass destruction. Fortunately, the 
Senate reversed that decision. It is urgent that we continue to work 
with Russia and with other nations to shut down the nuclear black 
market. In addition, we know that there were intelligence failures 
leading up to September 11. Yet, unlike the bill introduced by Senator 
Lieberman and passed by the Governmental Affairs Committee, this bill 
leaves most critical intelligence functions outside of the Homeland 
Security Department. We need to do a much better job of coordinating 
intelligence efforts regarding terrorism--or critical pieces of 
information will continue to fall between cracks.
  Nearly as troubling as what was left out of this bill is what was 
added to it at the eleventh hour. The American people should know that 
this is not the same Homeland Security bill that Congress was debating 
before the election. It was re-written in secret after the election. It 
has been stripped of a number of bipartisan, workable solutions that 
had been worked out on difficult problems. It has also been used as a 
Trojan horse for special interest giveaways that have little or nothing 
to do with making America safer from terrorism.
  We offered an amendment to strip out seven of these last-minute 
changes--changes that have not been debated publicly. But the White 
House lobbied hard to keep them, and the White House won. As a result, 
this Homeland Security bill now rewards US companies that use Carribean 
tax havens to avoid paying their fair share of taxes by allowing those 
companies to compete for Government contracts with the Department of 
Homeland Security. It says to those companies: Even if you refuse to 
help pay for the war on terrorism, you can still profit from it. What 
does that say about this administration's commitment to corporate 
responsibility? You tell me. Better yet, tell the American people.
  This bill now guts a critical part of the aviation security bill the 
Senate passed last year by a vote of 100 to nothing. It does so by 
providing special immunity for private companies that perform passenger 
and baggage screening at airports. It is likely to slow enactment of 
other new emergency transportation security rules that the 
Transportation Security Administration has said are essential to 
protect air and rail passengers, as well.
  In the name of protecting Americans, this bill actually eliminates 
some legal protections for ordinary Americans. It grants legal immunity 
to countless private companies. All the Federal Government has to do is 
designate a company's product an ``anti-terrorism technology'' and the 
company can't be sued--even if it acts in ways that are grossly 
negligent. This bill also provides special legal protections to the 
maker of a mercury-based, vaccine additive that has been alleged to 
harm children. For parents who are involved in class-action lawsuits 
against the makers of that additive, this bill slams the courthouse 
door in their face.
  This bill abandons the bipartisan effort to make workplace rules in 
the new Department more flexible without trampling worker protections 
and making workers more vulnerable to partisan political pressure. 
History has already shown that no one--no one--sacrificed more on 
September 11th than did public workers. I believe history will also 
show that using September 11 to justify taking away public employees' 
basic rights is a mistake. I regret deeply that it is part of this 
  This bill also undermines the Federal Freedom of Information Act and 
community right-to-know laws. It says that any information a company 
offers voluntarily to the Homeland Security Department--or any 
information a company gives to another government entity, which is then 
turned over to the Homeland Security Department--is classified. And it 
makes releasing such information a criminal offense. You don't have to 
worry about shredding damaging documents anymore. If a company wants to 
hide information from the public, all it has to do is give the 
information to the Federal Government and releasing it becomes a 
criminal offense. This is not necessary. The Freedom of Information Act 
already allows exceptions for national security reasons. We will not 
make America safer by denying people critical information or throwing 
conscientious whistle-blowers in prison.
  Finally, this bill authorizes the creation of a university-based 
homeland security research center. That sounds like a good idea. But 
this bill is now written in such a way that only one university in all 
of America is eligible to compete for the research center: Texas A&M.
  We shouldn't have to be here, working on this bill, on November 19. 
It has been nearly 14 months since Senator Lieberman first proposed 
creating a Department of Homeland Security. The Senate could have 
passed a strong Homeland Security bill, and President Bush could have 
signed it into law, long before the election. Democrats tried five 
times to break the Republican filibuster on homeland security. The 
reason we couldn't break the filibuster is because Republican leaders 
wanted to use homeland security as an election issue. They wanted to be 
able to blame Democrats for the impasse they created, and question the 
patriotism of good and decent people. As I said, for the sake of the 
American people and their security, I hope we have seen the last of 
those tactics.
  I will vote for this bill because there is no doubt that we need to 
create a Department of Homeland Security. But we must be honest with 
the American people. Passing this bill does not solve the problem of 
terrorism on American soil. Creating a new Department of Homeland 
Security is only one part of the solution. A much greater and far more 
comprehensive effort is still needed to prevent future terrorist 
attacks. That effort will be difficult, it will be complicated, it will 
be costly. We should not pretend otherwise.
  Last year, after September 11, this Senate put aside partisan 
differences and acted quickly to protect America from terrorism. It is 
deeply regrettable that much of that unity seems to have been lost, or 
sacrificed for partisan advantage, in the closing months of this 
Congress. We are capable of better. The American people deserved 
better. And I hope that in the next Congress, we will give them better.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. LIEBERMAN. I thank the Chair. Madam President, it is a happy 
twist of fate that the Senator from Pennsylvania is on the floor as I 
rise to support final passage of this legislation, which would create 
the unified and accountable Department of Homeland Security that the 
American people urgently need to protect them.
  It is a happy twist of fate because the legislative journey that 
brings us to the eve of adoption of this critically important 
legislation began on October 11, 2001, more than a year ago, but 
clearly a month after September 11, 2001, when I was privileged, along 
with Senator Specter, to introduce the first legislation that would 
authorize the creation of this Department. I thank him for joining me 
on that occasion and for working with us right through the road we have 
traveled, which has been long and taken twists and turns we never could 
have foreseen. We have even run into a few potholes along the way.
  The important point is we are about to reach the destination, and we 
are going to reach it together--in a broad, bipartisan statement of 
support for this critically necessary new Department.
  Giving credit where it is due, the journey actually began before 
October 11 and September 11, more than 18 months ago, when the 
visionary Commission on National Security in the

[[Page S11454]]

21st Century, led by our former colleagues Gary Hart and Warren Rudman, 
warned us of our vulnerabilities to terrorism with a painful 
prescience, and urged the creation of exactly the kind of new 
consolidated federal department to fight terrorism that we are about to 
  As I say, we have reached our destination, and that, I believe, is 
testament to the power of the basic idea underlying this legislation. 
It is also a reflection that our history changed on September 11, our 
vulnerabilities were exploited by our terrorist enemies, and we can 
never let that happen again. Those vulnerabilities remain, 
notwithstanding the improvements that have been made over the last 
  We recognize that protecting ourselves from terrorism will take an 
unprecedented commitment of people and resources. Building this 
Department will involve no shortage of problems, as any massive 
undertaking of this kind would--but we, after this initial act of 
creation, must be ready to improve, to support, and ultimately to 
protect the American people with this Department. We have no choice.
  Obviously, as I have said earlier today and at other times in the 
debate on the bill, the measure before us is not perfect. No 
legislation ever is. There are parts of the legislation before us that 
I think are not only unrelated to homeland security and unnecessary, 
but unwise and unfair. Of course, we made an attempt to eliminate those 
provisions with the motion to strike that came very close to passing 
earlier today. But this is the legislative process here on Earth, not a 
perfect process such as that which might exist in a heavenly location. 
We do not always get what we want here.
  Hopefully, though, through compromise, steadfastness, and hard work, 
the American people will get what they need. And that, I think, is what 
is happening with the adoption of this bill, which will occur in just a 
few hours.
  We must remember also--to say what is clear--that this bill will be 
written in the law books. It is not written in stone. If we need to 
make changes down the road, we can and we will.
  Nonetheless, all of those caveats, conditions, and concerns about 
certain elements of the legislation notwithstanding, we are about to be 
part of an historic accomplishment. It is the largest reorganization of 
the Federal Government since 1947, probably the most complex Federal 
reorganization in history, but that is what our present circumstances 
require to sustain our security.
  When we pass this bill, we in Congress must then not turn away but 
turn our attention toward overseeing the Department, with a clear 
vision and commitment. We must provide the necessary resources, which 
we still have not done, not just to this Department but to all of those 
throughout America, the Federal, county, State, and local governments 
who will partner with us to protect the security of the American 

  Early next year, we will have to confirm the Department's leaders and 
begin to review its strategies and objectives. I look forward to 
playing an active oversight role under the new leadership of the new 
chairman of the Governmental Affairs Committee, Senator Collins of 
Maine, and in the Senate at large. Part of that oversight role must be 
taking great care to make sure this administration and future 
administrations use the authorities this bill gives them in a 
constructive and constitutional manner.
  The important thing to say is we are ending this journey mostly 
together, certainly with a strong bipartisan vote. Though we have made 
the twists and turns and had the obstacles along the way I have 
referred to, the fact is, once we end this part of the journey, we 
begin the next phase. On that phase, I hope and believe nonpartisanship 
will be the rule, not the exception. I hope and believe that we will 
oversee and support the historic new effort to achieve homeland 
security in our new circumstances with as little partisanship as has 
been demonstrated by those of us who have been privileged to work as 
members of the Senate Armed Services Committee, where there are 
disagreements, but rarely are they partisan.
  That, I hope and believe, will characterize our work in support of 
the new Department of Homeland Security.
  I want to speak to some of the conditions this legislation will 
correct. As I said earlier, we have made some progress over the past 14 
months in trying to close the vulnerabilities September 11 revealed. 
The Office of Homeland Security has been created. The FBI and CIA have 
begun the process of reform. FEMA has focused more resources on 
countering terrorism. Smallpox vaccines are stockpiled around the 
country. We have begun efforts to link Federal law enforcement 
authorities to State and local police and to give community first 
responders some of the guidance, if not yet the resources, they so 
critically need. But the fact is we remain fundamentally and 
unacceptably disorganized, and that is why we need to restructure in 
exactly the way this legislation will require.
  Today, there are a lot of people and agencies in the government whose 
responsibilities include homeland security. Their duties often overlap. 
Everyone is in charge of their own domain and, therefore, no one is in 
charge of the overall homeland security effort.
  A year ago, we came to understand tragically, painfully, that the 
status quo was untenable. We knew we had these gaps in preparedness, 
but in the aftermath of September 11, there was no agreement on how to 
move forward. Our Governmental Affairs Committee held 18 hearings, and 
over time we grew more convinced our weaknesses were so profound they 
cried out for fundamental reorganization.
  We saw border patrol agencies that seemed unable to communicate with 
each other, let alone to stop dangerous goods and people from entering 
the United States of America.
  We saw intelligence agencies, despite strong signals about a 
potential terrorist attack of the type we sustained on September 11, 
failing to put those pieces together.
  We saw first responders around the country spread thinner than ever.
  And we saw deviously creative terrorists acquiring and applying 
technology to advance their own ends--but an American government that 
had not yet sought to marshal the most innovative people, our people, 
in the history of the world to meet this life-or-death challenge.
  We did not like what we saw.
  So we worked hard to better organize it, to make it more efficient, 
to make it more focused, to create a bill that would empower a 
Secretary with budget authority to get the agencies involved in 
homeland security to work together. That is what led to our 
introduction of the bill with Senator Specter and others, including 
Senator Cleland, and ultimately to report the bill out of the 
Governmental Affairs Committee in May.
  I don't think we can count the ups and downs since then. The finished 
product we are prepared to vote on today is, notwithstanding the 
concerns I have expressed, a great leap forward for the security of the 
American people. It is a great achievement to have reached agreement on 
a governmental reorganization of this magnitude.
  This is, after all, a very turf-conscious town, one in which we often 
speak volumes about the need for change, but just as often, probably 
more often, fail to deliver change. This bill will deliver change.
  Former Senators Hart and Rudman, who ably led that commission I 
referred to, this year were asked again to head an independent task 
force created by the Council on Foreign Relations. The final report of 
the task force, released October 24, 2002, was entitled titled 
``America Still Unprepared--America Still in Danger.'' I read from the 

       Quickly mobilizing the nation to prepare for the worst is 
     an act of prudence, not fatalism. In the 21st century, 
     security and liberty are inseparable. The absence of adequate 
     security elevates the risk that laws will be passed 
     immediately in the wake of surprise terrorist attacks that 
     will be reactive, not deliberative. Predictably, the 
     consequence will be to compound the initial harm incurred by 
     a tragic event with measures that overreach in terms of 
     imposing costly new security mandates and the assumption of 
     new government authorities that may erode our freedoms. 
     Accordingly, aggressively pursuing America's homeland 
     security imperatives immediately may well be the most 
     important thing we can do to sustain our cherished freedoms 
     for future generations.

  That is exactly what we will do when we adopt this legislation in a 
few hours.

[[Continued on page S11456]]

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