Congressional Record: September 23, 2002 (Senate)
Page S9050-S9053
SPECIAL COMMISSIONS
Mr. LOTT. Mr. President, let me begin tonight with a quote from
Federalist Paper No. 37, January 11, 1789, by James Madison.
It is misfortune, inseparable from human affairs, that
public measures are rarely investigated with that spirit of
moderation which is essential to a just estimate of their
real tendency to advance or obstruct the public good.
James Madison believed then it would always be very hard to
investigate events and do it in such a way, in moderation and without
partisanship, that the public would be able to find out what really
happened and then determine what should be done in the future to keep
it from happening again--to advance the good or obstruct the bad.
Another quote goes from an anonymous source goes something along the
lines of: If God had created a commission to establish Heaven and
Earth, we wouldn't be here today.
Mr. President, my own experiences with commissions over 30 years in
Congress have not been good. I view Congressional commissions as an
abdication of responsibility. What are we for? Why do we have an Armed
Services Committee, an Intelligence Committee, a Governmental Affairs
Committee, or a Foreign Affairs Committee?
It seems to me that we in Congress should do the work of reviewing
the laws and overseeing the agencies and the various departments. Are
they serving the public the right way? In a responsible way? Or is
there an abdication of responsibility and duty by the various
administrations in charge of running our government?
One of the reasons I have never supported BRAC, the various base
closure commissions, is that when we create those commissions we are
basically saying: We do not have the courage to do it; do not let us
know what is going on; shove it off on a commission and let them do it.
But in the past closing excess bases had always been handled without
a commission after every previous war. However, about 20 or 25 years
ago Congress started to say: No, we cannot do that, we will not do it.
In the past after previous wars how was the military scaled down?
Pentagon officials and other administration officials--after World War
I, after World War II, after the Korean war--would send recommendations
to the Congress regarding excess capacity and bases they felt were no
longer needed. And unless Congress blocked it, the bases were closed. I
bet every State in the Nation still has bases left over from World War
II. In my own State, we had bases in Hattiesburg, in Greenville, MS,
and Greenwood, MS. Some of the finest airport runways in our State are
the very sturdy concrete runways that were built during World War II
for air training facilities.
Congress simply acted and then the administration acted. Then
powerful members of Congress started saying: No, you cannot close my
base; close someone else's base. That is what ultimately led to the
creation of commissions.
I have no doubt about the integrity and the good intentions of
Senator Lieberman and Senator McCain with their proposal to create an
independent commission to investigate September 11, 2001. How did that
attacks happen, where were the failures, and how can we avoid repeating
them. I know these two men. They are men of good faith that feel so
strongly about our country they want this to be a positive thing. They
envision some commission of grand pooh-bahs and gray eminences that
will assemble and give us the benefit of their great wisdom, men and
women who have been in the Government, been in the intelligence
community, been in Congress, and thus could do the country a great
service.
Mr. President, the track record of that happening is unfortunately
very poor. As with all commissions, there are fundamental problems with
this commission. Of course, we are now in the second iteration of how
this commission would be set up and I presume there will be a third and
a fourth. I presume the House will have yet a different version after
they go through their iterations of a commission. And then the
Administration has concerns that will have to be addressed as well.
[[Page S9051]]
Let me point out where a few of the problems with this particular
commission are. Initially, the first draft of the Lieberman-McCain
proposal would have had 14 Members, 5 appointed by the Democrat leaders
in Congress, 5 by the Republican leaders in Congress and 4 by the
President with the President naming the chairman.
Then someone figured out, wait a minute; that means there would be
nine Republicans and five Democrats. That doesn't look bipartisan
enough. So they said we cannot do that.
Now what is actually in the legislation as proposed is that five
people would be appointed by the Democratic leadership and five by
Republicans. Senator Daschle appoints three; I would appoint two; the
Speaker would appoint three; and Congressman Gephardt, two--for a total
of 10 members. However, there are no Presidentially appointed members,
and no process for selecting a chairman. The bill just says there will
be a chairman and a vice chairman of opposite parties. So, wonderful,
how are the Chairman and Vice Chairmen going to be chosen. By Heaven?
If the commission were constituted that way they would be meeting 3
months just to pick their chairman. Which Member is going to break
ranks and vote with the other five? I know the presumption is that
these will be men and women of such eminence and prominence that they
would meet, all 10 of them, and quickly decide on a chairman and a vice
chairman and they would move along swiftly.
It ``ain't'' going to happen. I have had direct personal experience
with a few commissions over the past 10 years, particularly when I was
majority leader. I was involved in setting up a gaming commission to
look at gaming in America, the effects of gaming, Internet and Indian
gaming and the problems associated with gambling. I don't know how much
money they spent for that commission. And good men and women were on
that commission--men, women, minorities, and Native Americans
representing all the various viewpoints. It was well constituted and
the people who appointed the members did an exceptionally good job.
The commission members met, they acted seriously, they went all over
the country, they thought about it, and they filed a report, and closed
up their commission. I bet not one U.S. Senator ever read the report,
ever. And I am embarrassed to say I read an outline and kind of glanced
over it. I was not an advocate of the gaming commission, but I went
along with it at the request of, among others, my great friend from
Indiana, Dan Coats. Good work. Good intentions, Mr. President. Nothing
came of it.
Even more recently, we had the Breaux Commission on Medicare. That
was an interesting one, too. I think it was set up correctly number-
wise, with good people: Jay Rockefeller from the Finance Committee; Bob
Kerrey, a very innovative thinker on Medicare; Dr. Bill Fritz was
appointed on our side; Senator Phil Gramm, certainly one of the most
knowledgeable Senators in this area who is also on the Finance
Committee. Even former Finance Committee Chairman Pat Moynihan was on
it.
We also had people from the real world on the commission. I know a
woman on the commission who was over 70 with silver hair--I will not
mention her name because I cannot connect it to her age. She dealt with
Medicare on a daily basis. She benefitted from Medicare. She knew what
she was talking about. We had all these people who knew what Medicare
was suppose to do for the nation's seniors, in theory. It was a great
commission.
John Breaux was the chairman. I might note that it was interesting
how John got to be chairman. I remember specifically talking to
President Clinton about somebody both sides could accept. We settled on
John and he took it and did a good job. The commission met and their
meetings were on C-SPAN. They did a lot of thoughtful work, they had
good debate, and they made excellent recommendations. They issued a
commission report detailing their great recommendations.
What happened to their report Mr. President? Nothing. None of their
recommendations have been implemented or acted on. And, by the way,
they called for providing a prescription drug benefit. They had a plan
to do it without bankrupting the entire Medicare system. It was the
Breaux proposal and then the Breaux-Frist proposal. It was a tremendous
effort. But nothing ever came of it.
So the track record on Commissions is not good. I don't want this to
be a commission that is not set up right, that spends millions of
dollars for nothing. I am told it is just $3 million, but I bet it
winds up being closer to $12 million or more and that does not count
the cost of the assistance that the other parts of the federal
government are required to give it under the proposed bill. The
commission will also stretch out over 18 months. When its report is
ultimately filed, it will garner headlines and discussion on the
weekend talk show for a week or two, but then it will be forgotten and
not much will come of it.
Mr. President, I sincerely hope that if we do create the commission
that I am wrong. But I don't think the prospects or the track record
look very good.
Now, again, as I have said, the actual language of the amendment
concerns me in many respects. For instance, it says that one of the
purposes of the commission would be:
. . . to ascertain, evaluate, and report on the evidence
developed by all relevant governmental agencies regarding the
facts and circumstances surrounding the attacks.
However, there is no provision in this bill as to how the commission
will have to deal with the evidence they are given by the Department of
Justice, U.S. Attorneys, Federal courts, and others in order to
safeguard it. Would the public, and our enemies, be able to get this
information through the Freedom Of Information Act or not? I suppose
this issue can be addressed, but it is not clear in the bill as written
and it needs to be.
Mr. President, the commission is also given almost total access to
the nation's classified information, yet again there is nothing in the
proposal that requires or directs the commission to safeguard it. The
Senate and House Intelligence Committees have strict rules and
elaborate procedures--as does the CIA, DOD, the National Security
Agency and other entities entrusted with the nation's top secret
information for protecting such information. Yet, there is there is no
explicit requirement in this bill for this commission to protect our
national secrets.
But again, that is why I like the joint House-Senate Intelligence
Committee's efforts--it is equally divided among the parties, they have
experience dealing with classified information, and they have settled
procedures for handling such information.
Astoundingly, it appears that most of this new commission's
proceedings would have to be public since they would be subject to the
Federal Advisory Committee Act and that it materials available to the
public under the Freedom of Information Act despite that fact that the
Commission would be dealing with some of our most important and best
kept secrets.
I also have concerns about the procedures for using and the extent of
the subpoena authority granted the commission under this amendment. It
appears that once elected, the Chairman, Vice Chairman, or even the
Chairman of a Subcommittee created by the Commission, can issue any and
all subpoenas he or she desires without having to go back to the rest
of the Commission for permission, approval, or even a vote on the
wisdom or propriety of their subpoena. We do not generally grant such
unilateral subpoena authority to Chairman and Ranking members in
Congress.
Mr. President, I have been opposed to this commission thus far.
First, of course, as I have said, because I oppose commissions almost
universally because I do not think they produce good results and
because that is what we in Congress are for. But second--and one of the
things I have been thinking about--is because we have already had the
joint intelligence committee, House and Senate, looking into this
matter. Those members have been working through these issues. They are
still working on it. They have not yet completed their work. We have
not received a final report. We are getting a few preliminary staff
reports. Nevertheless, it seems we are going to go ahead and have this
vote before we even get to see what the final results of Congress' own
inquiry are.
[[Page S9052]]
By the way, I do wish the Joint Committee would do their work and
tell Congress what we need to do to protect Americans from terrorism in
the future. If we need to change even more about how our intelligence
community operates, let's do it. I think we can do it in a bipartisan
way.
Mr. President, I note that the amendment as proposed also states that
the commission will:
. . . make a full and complete accounting of the
circumstances surrounding the attacks, and the extent of the
United States' preparedness for, and response to, the attacks
. . . [and] investigate and report to the President and
Congress on its findings, conclusions, and recommendations
for corrective measures that can be taken to prevent acts of
terrorism.
I wonder if the sponsors are aware that, since 1995, the Government
has produced reams of materials regarding counter-terrorism,
intelligence activities, and aviation security. Since 1995, seven
commissions have dealt in this area and issued 10 separate reports
prior to 9/11.
One of the past commissions was the so-called Gilmore Commission. Its
official name was the ``U.S. Advisory Panel to Assess Domestic Response
Capabilities for Terrorism Involving Weapons of Mass Destruction.'' The
Gilmore Commission submitted three reports to the President and
Congress. The first one submitted in 1999 was titled ``Assessing the
Threat.'' The second submitted in 2000 was titled, ``Toward a National
Strategy for Combating Terrorism.'' The final report submitted just
before the 9/11 attacks was titled ``For Ray Downey.''
The panel consisted of government officials and infrastructure
specialists who examined domestic and international threats to the
homeland, and made many recommendations for increased security and
better coordination between federal and state agencies in combating
terrorism.
Then there was the Hart-Rudman Commission led by two very respected
Senators. Its official title was the ``U.S. Commission on National
Security in the 21st Century'' and it ultimately issued reports and
specific recommendations in 1999, 2000, 2001.
The reports were titled ``New World Coming: Major Themes and
Implications'' (1999); ``Seeking a National Strategy'' (2000); and
``Road Map for National Security: Imperative for Change'' (2001). The
commission, which was chartered by then Secretary of Defense William
Cohen, had a broad mandate to study ``the anticipated security
environment in the early 21st Century.'' Its recommendations in three
reports call for a counter-terrorism policy focus on deterrence and
domestic preparedness capabilities. Most significantly, the Commission
recommended establishing a Homeland Security Agency while noting the
need for more human intelligence.
Then there was the ``IC21: The Intelligence Community In The 21st
Century'' Report. This was done by the House Permanent Select Committee
on Intelligence which published the report in 1996. The goal was to
``define the type of intelligence community which would best meet the
U.S. national security needs into the next century.''
There was the so-called Bremer Commission created by Public Law 105-
277 and officially titled the ``U.S. National Commission on Terrorism
and National Security in the 21st Century.'' The Bremer Commission
released its report in 2000 and recommended a more aggressive domestic
and foreign policy in combating terrorism.
Then there was the Aspin-Brown Commission, led by two more well
respected gray eminences of the kind we are talking about--former
Congressman Aspin and former Secretary of Defense Harold Brown. The
Commission was created by Public Law 103-539 and charged with
``Preparing for the 21st Century and Appraisal of U.S. Intelligence.''
They made three findings in 1996: That the United States needed to
better integrate intelligence into the policy community, needed for
intelligence agencies to operate as a community, and needed to create
greater efficiency and bring more rigor and modern management practices
to the system. This was in 1996.
A really important commission was the ``U.S. White House Commission
On Aviation Safety and Security,'' which issued a report from its
Chairman--Vice President Gore to President Clinton in 1997. It was a
good report. It also had specific recommendations about how to improve
aviation security. What happened to it? Nothing was acted on. Congress
didn't act on it. Good work was done. This commission was tasked with
developing ``a strategy to improve aviation safety and security, both
domestically and internationally.''
Let's look at a few of the recommendations this report made in 1997--
over four years before the 9/11 attacks took place. The very first
paragraph in the report's 3rd Chapter--titled ``Improving Security for
Travelers''--said the following:
The Federal Bureau of Investigation, the Central
Intelligence Agency, and other intelligence sources have been
warning that the threat of terrorism is changing in two
important ways. First, it is no longer just an overseas
threat from foreign terrorists. People and places in the
United States have joined the list of targets, and Americans
have joined the ranks of terrorists. The bombings of the
World Trade Center in New York and the Federal Building in
Oklahoma City are clear examples of the shift, as is the
conviction of Ramzi Yousef for attempting to bomb twelve
American airliners out of the sky over the Pacific Ocean. The
second change is that in addition to well-known, established
terrorist groups, it is becoming more common to find
terrorists working alone or in ad-hoc groups, some of whom
are not afraid to die in carrying out their designs.
Mr. President, that one chapter went on to make 31 recommendations
for improving aviation security. Some of those recommendations given
over four years before 9/11 tragedy were as follows:
Recommendation 3.7--The FAA should work with airlines and
airport consortia to ensure that all passengers are
positively identified and subjected to security procedures
before they board aircraft.
Recommendation 3.9--Assess the possible use of chemical and
biological weapons as tools of terrorism.
Recommendation 3.10--The FAA should work with industry to
develop a national program to increase the professionalism of
the aviation security workforce, including screening
personnel.
Recommendation 3.11--Access to airport controlled areas
must be secured and the physical security of aircraft must be
ensured.
Recommendation 3.14--Require criminal background checks and
FBI fingerprints for all screeners, and all airport and
airline employees with access to secure areas.
Recommendation 3.17--Establish an interagency task force to
assess the potential use of surface-to-air missiles against
commercial aircraft.
Recommendation 3.19--Complement technology with automated
passenger profiling.
Recommendation 3.20--Certify screening companies and
improve screener performance.
Recommendation 3.21--Aggressively test existing security
systems.
Recommendation 3.23--Give properly cleared airline and
airport security personnel access to the classified
information they need to know.
Recommendation 3.24--Begin implementation of full bag-
passenger match.
Recommendation 3.26--Improve passenger manifests.
Recommendation 3.27--Significantly increase the number of
FBI agents assigned to counter-terrorism investigations, to
improve intelligence and to crisis response.
Mr. President, all of this information is in the public record. It is
there. Why don't we make use of it?
The list goes on. There were over 90 GAO reports before 9/11 and now
there are over 50 GAO reports on Aviation and National Security and
Terrorism since 9/11. There was a 1999 report titled ``The FBI 30-year
Retrospective Special Report on Counter-terrorism'' that was put out by
the FBI's Counter-Terrorism Division and which detailed 30 years of
terrorism. It was done after terrorists were caught in 1999 trying to
smuggle bomb-making materials into Jordan, and into the US from Canada
in Washington State to disrupt celebrations of the Millennium.
That report gave the American public the following assurances in
1999:
In November 1999, the FBI restructured its National
Security Division to create, for the first time, a division-
level component dedicated specifically to combating
terrorism.
In 1999 the FBI established the Counterterrorism and the
Investigative Services divisions to further enhance the
operational and analytic focus on the full range of
activities in which violent extremists engage.
[[Page S9053]]
The FBI's 30-year retrospective report concluded with the following--
as it turned out false--assurance in 1999:
While the threat is formidable, the U.S. intelligence and
law enforcement community have developed an effective and
highly integrated response to the [counter-terrorism threat.]
. . . Increasingly, the FBI's efforts involve the assistance
and cooperation of other intelligence and law enforcement
agencies. The threats of the new Millennium require such an
integrated and aggressive response.
Mr. President, do you see my point? Good work has been done by good
men and women, experts in this field, reports on what we need to do in
order to do a better job--in 1996, 1997, 1998 and 1999 and 2000 and
2001. All this good work by the commissions, the GAO, the FBI, and
others has not resulted in us doing anything about it.
Now we are going to have one more commission report. These are the
commission reports on my desk that have been done already since 1995--a
pretty good stack. It is very interesting reading.
The GAO report here, just on the top, ``Combating Terrorism, FBI'S
Use of Federal Funds for Counter-terrorism and Related Activities''--
there is just simply a plethora of counter-terrorism reports available
making thousands of recommendations. These reports did not look at the
specific events that led up to 9/11 and what happened and what we have
learned from that, but they did look at what we should have been doing
to prevent it.
I think, unfortunately, this commission amendment is probably going
to be agreed to, but I wanted to raise my concerns about the way the
commission amendment is drafted, the way the commission would be
created, the cost that would be involved, and the likelihood that at
the end of the day its findings will meet the fate of those from so
many commissions before it.
As to money, I am sure they are starting off way low. They will be
back asking for an increase in money within 3 to 6 months. I have
already experienced that, too. In fact, one of the commissions I
referred to earlier came back wanting more money, they wanted a little
bit more, they came back yet a second time but I said: No. Wrap it up.
So I just do not think this is a wise thing to do. I think we ought
to do it, or I think the administration ought to do it, but somebody
needs to grab hold of this and do it the right way. Maybe the joint
intelligence committee can still give us what we need in order to
decide if we need more laws or if we need more reform within the
intelligence community. But this commission is not going to bring us a
lot more. It may get a few big headlines. It is going to cost a lot
more money. Yet, I doubt if much will come out of it.
By the way, probably the earliest we will get anything out of it
specifically would be 18 months from now. Goodness gracious, if we need
to take action on what we have learned and what we know, are we going
to wait for 18 months to see this commission report before we act? By
the time this commission acts, I fervently hope that Congress will
already have done everything that needs to be done as a result of the
events of 9/11.
I thank the Chair for showing patience, and the staff here. I do not
want to keep them too long. But I was afraid I would not get an
opportunity to raise these questions tomorrow before we go to the vote.
Maybe there will be a stampede to just get this done, but, boy, we are
going to need to do a lot of work before we enact it into law.
I believe we are ready to complete our work for the day. I yield the
floor.
____________________
