Congressional Record: October 1, 2004 (Senate)
Page S10197-S10252
[[Page S10197]]
NATIONAL INTELLIGENCE REFORM ACT OF 2004
The PRESIDENT pro tempore. Under the previous order, the Senate will
resume consideration of S. 2845, which the clerk will report.
The legislative clerk read as follows:
A bill (S. 2845) to reform the intelligence community and
the intelligence and intelligence-related activities of the
United States Government, and for other purposes.
Pending:
Collins Amendment No. 3705, to provide for homeland
security grant coordination and simplification.
Lautenberg Amendment No. 3767, to specify that the National
Intelligence Director shall serve for one or more terms of up
to 5 years each.
Kyl Amendment No. 3801, to modify the privacy and civil
liberties oversight.
McCain/Lieberman Amendment No. 3807, to develop a strategy
for combining terrorist travel intelligence, operations, and
law enforcement.
Feinstein Amendment No. 3718, to improve the intelligence
functions of the Federal Bureau of Investigation.
Stevens Amendment No. 3839, to strike section 201, relating
to public disclosure of intelligence funding.
Ensign Amendment No. 3819, to require the Secretary of
State to increase the number of consular officers, clarify
the responsibilities and functions of consular officers, and
require the Secretary of Homeland Security to increase the
number of border patrol agents and customs enforcement
investigators.
Reid (for Schumer) Amendment No. 3887, to amend the Foreign
Intelligence Surveillance Act of 1978 to cover individuals,
other than United States persons, who engage in international
terrorism without affiliation with an international terrorist
group.
Reid (for Schumer) Amendment No. 3888, to establish the
United States Homeland Security Signal Corps to ensure proper
communications between law enforcement agencies.
Reid (for Schumer) Amendment No. 3889, to establish a
National Commission on the United States-Saudi Arabia
Relationship.
Reid (for Schumer) Amendment No. 3890, to improve the
security of hazardous materials transported by truck.
Reid (for Schumer) Amendment No. 3891, to improve rail
security.
Reid (for Schumer) Amendment No. 3892, to strengthen border
security.
Reid (for Schumer) Amendment No. 3893, to require
inspection of cargo at ports in the United States.
Reid (for Schumer) Amendment No. 3894, to amend the
Homeland Security Act of 2002 to enhance cybersecurity.
The PRESIDENT pro tempore. The Senator from Maine.
Ms. COLLINS. Mr. President, I suggest the absence of a quorum.
The PRESIDENT pro tempore. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. ALLARD. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDENT pro tempore. Without objection, it is so ordered.
Amendment No. 3765
Mr. ALLARD. Mr. President, my understanding is that there is a
pending amendment before the Senate; is that correct?
The PRESIDENT pro tempore. The Senator is correct. There are several.
Mr. ALLARD. I ask unanimous consent that the pending amendments be
set aside, and I call up amendment No. 3765.
The PRESIDENT pro tempore. Without objection, it is so ordered.
The clerk will report.
The legislative clerk read as follows:
The Senator from Colorado [Mr. Allard] proposes an
amendment numbered 3765.
Mr. ALLARD. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDENT pro tempore. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To provide for additional responsibilities for the Chief
Information Officer of the Department of Homeland Security relating to
geographic information)
At the appropriate place, insert the following:
SEC. __. HOMELAND SECURITY GEOGRAPHIC INFORMATION.
(a) Findings.--Congress finds that--
(1) geographic technologies and geographic data improve
government capabilities to detect, plan, prepare, and respond
to disasters in order to save lives and protect property;
(2) geographic data improves the ability of information
technology applications and systems to enhance public
security in a cost-effective manner; and
(3) geographic information preparedness in the United
States, and specifically in the Department of Homeland
Security, is insufficient because of--
(A) inadequate geographic data compatibility;
(B) insufficient geographic data sharing; and
(C) technology interoperability barriers.
(b) Homeland Security Geographic Information.--Section 703
of the Homeland Security Act of 2002 (6 U.S.C. 343) is
amended--
(1) by inserting ``(a) In General.--'' before ``The Chief
Information''; and
(2) by adding at the end the following:
``(b) Geographic Information Functions.--
``(1) Definition.--In this subsection, the term `geographic
information' means the information systems that involve
locational data, such as maps or other geospatial information
resources.
``(2) Office of geospatial management.--
``(A) Establishment.--The Office of Geospatial Management
is established within the Office of the Chief Information
Officer.
``(B) Geospatial information officer.--
``(i) Appointment.--The Office of Geospatial Management
shall be administered by the Geospatial Information Officer,
who shall be appointed by the Secretary and serve under the
direction of the Chief Information Officer.
``(ii) Functions.--The Geospatial Information Officer shall
assist the Chief Information Officer in carrying out all
functions under this section and in coordinating the
geographic information needs of the Department.
``(C) Coordination of geographic information.--The Chief
Information Officer shall establish and carry out a program
to provide for the efficient use of geographic information,
which shall include--
``(i) providing such geographic information as may be
necessary to implement the critical infrastructure protection
programs;
``(ii) providing leadership and coordination in meeting the
geographic information requirements of those responsible for
planning, prevention, mitigation, assessment and response to
emergencies, critical infrastructure protection, and other
functions of the Department; and
``(iii) coordinating with users of geographic information
within the Department to assure interoperability and prevent
unnecessary duplication.
``(D) Responsibilities.--In carrying out this subsection,
the responsibilities of the Chief Information Officer shall
include--
``(i) coordinating the geographic information needs and
activities of the Department;
``(ii) implementing standards, as adopted by the Director
of the Office of Management and Budget under the processes
established under section 216 of the E-Government Act of 2002
(44 U.S.C. 3501 note), to facilitate the interoperability of
geographic information pertaining to homeland security among
all users of such information within--
``(I) the Department;
``(II) State and local government; and
``(III) the private sector;
``(iii) coordinating with the Federal Geographic Data
Committee and carrying out the responsibilities of the
Department pursuant to Office of Management and Budget
Circular A-16 and Executive Order 12906; and
``(iv) making recommendations to the Secretary and the
Executive Director of the Office for State and Local
Government Coordination and Preparedness on awarding grants
to--
``(I) fund the creation of geographic data; and
``(II) execute information sharing agreements regarding
geographic data with State, local, and tribal governments.
``(3) Authorization of appropriations.--There are
authorized to be appropriated such sums as may be necessary
to carry out this subsection for each fiscal year.''.
Mr. ALLARD. Mr. President, to briefly explain the amendment, it
provides additional responsibilities for the Chief Information Officer,
Department of Homeland Security, relating to geographic information.
This amendment has been discussed by both managers, the Senator from
Maine and the Senator from Connecticut. My understanding is the
amendment has been agreed to.
The PRESIDENT pro tempore. The Senator from Maine.
Ms. COLLINS. Mr. President, I commend the Senator from Colorado for
the work that he has done in coordinating the geospatial information
needs of the Department of Homeland Security. He first introduced a
bill on this issue last year. He has been a leader in pushing for
improvements in how this information is handled. This legislation was
recently reported as a separate bill by the Governmental Affairs
Committee. It is acceptable and cleared on both sides. I urge adoption
of the amendment.
The PRESIDENT pro tempore. Is there further debate? Without
objection, the amendment is agreed to.
The amendment (No. 3765) was agreed to.
The PRESIDENT pro tempore. The Senator from Colorado.
Mr. ALLARD. Mr. President, I rise today to discuss the Collins-
Lieberman bill. Later I will have another amendment that I will offer.
First, I thank the managers of the bill, Senator Collins and Senator
[[Page S10198]]
Lieberman, for their efforts in getting at least one of my amendments
accepted. The other is pending. One involves the Department of Homeland
Security and its ability to detect, plan, and prepare for disaster by
better utilizing geospatial data throughout the U.S. Government. I
thank both of them for that support.
The other amendment assures that the national intelligence director
will take action to ensure that commercial satellite imagery is used to
fulfill the imagery information requirements of the intelligence
community. Both are important to the ongoing safety and security of the
country. I am pleased to see the adoption of one, and further
consideration of the other.
In a moment I would like to offer a third amendment to strengthen the
bill regarding management of the intelligence community workforce.
Before I offer my amendment, I would like to talk generally about the
overall intelligence reform legislation.
September 11, 2001, was a day that none of us will forget in our
lifetimes. Mr. President, 9/11 was a harsh wake-up call for our
country. That catastrophic day forced us to recognize new threats and
to energize our Government to rise up and eliminate terror threats and
modernize our national security institutions. Our Government has moved
quickly and comprehensively to implement a significant body of
governmental reforms.
It is a fact that through hard work and strong leadership, President
Bush's administration has already implemented planning of significant
improvements to our Government's intelligence planning and operations.
Of the 39 recommendations from the 9/11 Commission that the President
could legally implement through Executive order, only three remain to
be addressed. It is a good idea, as we consider reforms to our
intelligence community, to review again what the 9/11 Commission
concluded.
The 9/11 Commission primarily found that, first, we were slow to
respond to a clear and emerging threat. For far too long we stood still
while extremist radical Muslims hijacked religion to stir up hatred,
hijacked a country to operate their base camps from, and hijacked our
airliners to murder more than 3,000 of our fellow Americans.
Second, we had inadequate human intelligence assets around the world
to observe such threats and effectively warn us of impending dangers.
Third, for the intelligence we did get, we lacked an effective
bureaucracy to integrate disparate but related pieces of information,
and we lacked a strong quarterback to coordinate intelligence programs
against emerging threats, to plan long-term strategies, or to steer a
change of course when the situation dictated.
Fourth, our military was not adequately prepared to deal with the
threat that day. And last and maybe most importantly, we need new tools
and strategies for our diplomatic corps to reach out and lead troubled
regions of the world against terrorism's misguided principles and
cowardly acts. We need transformational military improvements to engage
where and when our diplomacy does not succeed.
The 9/11 Commission also fashioned more than three dozen
recommendations to address these national security shortfalls. I
applaud the effort of the chairman and ranking member of the
Governmental Affairs Committee in developing the proposals before us
today. I agree with the majority of the initiatives in the intelligence
reform legislation. The Collins-Lieberman bill will improve our ability
to develop actionable intelligence and increase our Government's
coordination and responsiveness. Elevating the roles and
responsibilities of today's Director of Central Intelligence to the
level of a national intelligence director, including the robust
planning and budgeting authority, is prudent and much needed.
Establishment of strategic intelligence planning and fusion centers
such as the national counterterrorism center will also greatly
strengthen our national security team's ability to connect the dots. We
need to identify trends, anticipate threats, and develop coordinated
plans to attack threats prior to their realization.
However, I am not convinced we are effectively matching solutions to
identify problems in all cases. My concerns are heightened because
today we are a nation at war. Our men and women of the Armed Forces and
the intelligence community are in harm's way. I am just not certain
that we have thought through adequately the management changes or the
unintended consequences relative to Defense Department operations. I
will follow closely the remainder of the debate to understand better
the potential adverse effects prior to voting to support them.
I am pleased to see the attention focused by the 9/11 Commission
Report and the Collins-Lieberman bill on the topic of personnel
management policies and practices across the intelligence community.
Both panels recognize that in order to effect such a magnitude of
change in our Federal Government, uniform personnel standards and
training are needed to align individual mindsets with the desired
objectives.
Our national security requirements demand that we recruit and retain
the best and the brightest defense and intelligence personnel our
country has to offer.
We need to ensure the National Intelligence Director is armed with
both authority and flexibility to enforce only the highest performance
and ethical standards across the intelligence community. This requires
modern personnel management policies and regulations that incorporate
competitive compensation, incentives, and supervisory flexibility.
To keep pace with the dynamic work environment of the intelligence
community, these same supervisors require streamlined dismissal or
termination mechanisms for personnel failing to satisfy standards.
The bill before us today directs specific authorities and changes to
performance compensation and incentives across the national
intelligence program. Section 163 explicitly grants the National
Intelligence Director authorities governing new National Intelligence
Authority employees that mirror the authority held by the Director of
Central Intelligence Agency relative to CIA employees.
In section 301, the bill goes on to amplify the CIA Director's
authority to terminate employees ``. . . whenever the Director
considers the termination of employment of such officer or employee
necessary or advisable in the interests of the United States.''
This is clear, unequivocal, and prudent authority that will bolster
our intelligence leaders' personnel management capabilities. But I
believe we need to go further.
Amendment No. 3778
Mr. President, at this time, I ask unanimous consent that we lay
aside the pending amendment and that the clerk report amendment No.
3778, which is at the desk.
The PRESIDENT pro tempore. Without objection, the pending amendment
is set aside.
The clerk will report.
The legislative clerk read as follows:
The Senator from Colorado [Mr. Allard] proposes an
amendment numbered 3778.
The amendment is as follows:
(Purpose: To improve the management of the personnel of the National
Intelligence Authority)
On page 113, between lines 17 and 18, insert the following:
(b) Termination of Employees.--(1) Notwithstanding any
other provision of law, the National Intelligence Director
may, in the discretion of the Director, terminate the
employment of any officer or employee of the National
Intelligence Authority whenever the Director considers the
termination of employment of such officer or employee
necessary or advisable in the interests of the United States.
(2) Any termination of employment of an officer or employee
under paragraph (1) shall not affect the right of the officer
or employee to seek or accept employment in any other
department, agency, or element of the United States
Government if declared eligible for such employment by the
Office of Personnel Management.
On page 113, line 18, strike ``(b) Rights and Protections''
and insert ``(c) Other Rights and Protections''.
On page 113, after line 24, add the following:
(d) Exclusion from Certain Personnel Management
Requirements.--
(1) Performance appraisals.--Section 4301(1)(ii) of title
5, United States Code, is amended by inserting ``the National
Intelligence Authority,'' before ``the Central Intelligence
Agency,''.
(2) Labor-management relations.--Section 7103(a)(3) of that
title is amended--
(A) in subparagraph (G), by striking ``or'' at the end;
(B) in subparagraph (H), by striking the period at the end
and inserting a semicolon; and
[[Page S10199]]
(C) by adding at the end the following new subparagraphs:
``(I) the National Intelligence Authority;
``(J) the Defense Intelligence Agency;
``(K) the National Geospatial-Intelligence Agency; or
``(L) any other Executive agency or unit thereof which is
designated by the President and the principal function of
which is the conduct of foreign intelligence or
counterintelligence activities.''.
(e) Regulations.--(1) In carrying out the responsibilities
and authorities specified in sections 112 and 113 and this
section (including the amendments made by this section), the
National Intelligence Director shall prescribe regulations
regarding the management of personnel of the National
Intelligence Authority.
(2) The regulations shall include provisions relating to
the following:
(A) The applicability to the personnel of the Authority of
the authorities referred to in subsection (a).
(B) The exercise of the authority under subsection (b) to
terminate officers and employees of the Authority.
Mr. ALLARD. Mr. President, my amendment will accomplish the
following: first, expressly grant this termination authority to the
National Intelligence Director in the statute; and second, direct the
National Intelligence Director to prescribe regulations specifying the
exercise of this termination authority.
Notwithstanding this broad authority already in place today, the
Director of Central Intelligence maintains regulations that are
inefficient, not appropriate for today's security environment, and are
out of sync with his broad authority. For example, an intelligence
supervisor who deems an officer or employee as unsuitable is often
required to maintain that employee in sensitive positions while adverse
personnel action is initiated.
After a final termination decision is rendered by the agency, the
employee can engage in a lengthy appeals process, both internal and
external to the agency, that could last at least a year. In my opinion,
this practice is not in the best interest of the United States, and
indeed presents a clear security risk.
With regulations requiring streamlined employee termination
practices, I believe we can improve national security and fiscal
responsibility across the National Intelligence Authority. My amendment
would enhance this responsibility, and I urge my colleagues to support
my amendment.
Mr. President, the Chair and Ranking Members, indeed all Members of
the Government Affairs Committee, have served our country well. The
Collins-Lieberman bill for intelligence reform brings forth bold and
sweeping changes to our critical national security institutions.
Accordingly, it is essential that we get this right. More is at stake
than simply moving boxes around on an organization chart. The decisions
we make over the next several days will be far-reaching and have
significant consequences. Our Armed Forces are not only the largest
provider of intelligence information, they are also the largest
consumer. Our Nation's military, the most powerful and proficient ever
assembled in the history of the world, hinges on a seamless and
unbroken flow of intelligence information--regardless of whether that
intelligence information is ``national'' or ``tactical.''
As we consider the Collins-Lieberman intelligence reform bill, let us
redouble our efforts to ensure we're matching solutions to identified
problems. As long as we keep this perspective, I am confident this body
will do the right thing.
Mr. President, I yield floor.
The PRESIDENT pro tempore. The Senator from Maine is recognized.
Ms. COLLINS. Mr. President, I thank the Senator from Colorado for his
generous comments. I very much enjoy working with him on the Armed
Services Committee. He brings a great deal of expertise to this debate.
The amendment he has proposed this morning is one that our staffs are
starting to look at. I suggest that it be set aside so that we can do
more analysis of it, but I appreciate the spirit in which it was
offered.
The PRESIDENT pro tempore. Is there objection to setting aside this
amendment? The amendment is set aside.
Who seeks recognition?
Mr. LIEBERMAN. Mr. President, I thank the Senator for his statements
about the Collins-Lieberman legislation and also thank him for the
amendment. This looks to be exactly like the legislation the Senator
and Senator Akaka introduced, which came out of our committee. This is
the right moment, and it strengthens the bill. I thank him for his
persistence in offering it. I am glad we added it.
I yield the floor.
Mr. ALLARD. I thank the managers for their kind comments.
The PRESIDENT pro tempore. The Senator from Tennessee is recognized.
Mr. ALEXANDER. Mr. President, this morning, I want to take a few
minutes to talk about an amendment that was adopted yesterday. It was
sponsored by the Senator from Ohio, Mr. Voinovich.
The amendment is about the 3,361 Presidential appointees and how they
are confirmed. I am glad to see that as I am speaking the President pro
tempore is here because he has been a Presidential appointee in an
earlier administration. I am glad to see both the chairman and ranking
member of the Governmental Affairs Committee here because their
committee deals with this issue. This is the kind of issue that never
makes the front page and is always on the back burner. But it has a
major practical effect on how our Government works.
The 9/11 Commission has reminded us, once again, of the problem we
have. What the 9/11 Commission recommended, and what Senator
Voinovich's amendment would do--an amendment that I was glad to
cosponsor--is to, in the words of the 9/11 Commission--``speed up the
nomination, financial reporting, security clearances, and confirmation
process for national security officials at the start of an
administration.''
In other words, in plain English, to make it possible, if President
Bush reorganizes his administration in a second term, or if Senator
Kerry is the new President, they have 3,361 appointments to make. I
think it would come as a great shock to many of the voters who are
voting for one of them, and it will come as a shock, no doubt, to some
of the people they nominate to know that if, for example, a President
Bush or a President Kerry picks a new Secretary of HHS or Secretary of
Education or Secretary of Defense, to begin with, that person is not
allowed to go to the office of the Secretary of Defense or the
Secretary of HHS or the Secretary of Education until he or she is
confirmed by the Senate.
In other words, here we are in a war on terror. The President says he
has a new appointment requiring Presidential confirmation, let's say
for Secretary of State. That person is not allowed, out of courtesy to
this body, to go into the office of the Secretary of State until we
confirm them. One might say, well, there is nothing so wrong about
that. That should not take more than a few days, with the kind of well-
known person the President would probably pick--someone, for example,
of the stature of Colin Powell.
I will give you an example of why it takes longer than a few days.
The Presiding Officer, the Senator from Connecticut, the Senator from
Maine, all of us remember and know well Senator Howard Baker, who was
the majority leader of this body. Senator Baker, at one time, if memory
serves me correctly, was selected as the most admired Senator in a poll
participated in by both Democratic Senators and Republican Senators. He
is known pretty well. He is today the Ambassador to Japan, nominated by
President Bush. The Japanese consider that to be a great compliment to
the country, to have someone of such stature.
However, Howard Baker reminded me this week when I called him that
when he was nominated by the President to be Ambassador to Japan, it
took him weeks to fill out the forms to be approved by the FBI,
approved by the Government Ethics Office, nominated by the President,
and confirmed by the Senate. He told me specifically that he spent more
money hiring people to help him fill out his forms accurately so he
would not go to jail by making a mistake than he made in his first year
as Ambassador to Japan.
Let's think of that. Here is a highly respected individual, at the
time 75 or 76 years old. He has been filling out forms for 18 years as
a Member of this body. He has run for President. He has been White
House Chief of Staff. He is the most admired Senator. Yet by our
[[Page S10200]]
requirements it takes several weeks of his time, and he spends more
money hiring people to fill out his forms than he made in his first
year in his Government job.
That is preposterous. That is a preposterous result.
He further told me he had another little issue with the Government
Ethics Office. Senator Baker is now married to former Senator Nancy
Kassebaum. It is the second marriage for both. When they became
married, they wanted to keep their estates separate. They jointly owned
25 head of cattle. This tied up Senator Baker's nomination for some
time in the Government Ethics Office because the question was jointly
owning 25 head of cattle would require--just that single fact--Senator
Kassebaum to have to go through this week-long, very expensive process
of disclosing everything once more about herself and filling out all
those forms.
Finally, in exasperation, Senator Baker simply gave his half interest
in the 25 head of cattle to Senator Kassebaum, and that settled that
problem.
This is not so unusual. Senator Baker and Senator Kassebaum are not
the only Presidential nominees to go through the expense and delay of
being appointed to a Presidential position.
I was nominated by the first President Bush as his Education
Secretary. I was nominated in December of 1990. I was confirmed in I
believe it was April of 1991. In the meantime, I was not allowed to go
to the Office of the Secretary of Education.
During that time, 60 percent of American college students were going
to colleges and universities followed by a Federal grant or a loan.
That is supposed to be supervised by the Secretary of Education of a
President who said he wanted to be the education President. Yet his
nominee is not allowed to go to the office, out of courtesy to this
body.
Then, of course, there is the matter of recruiting a team. I asked
President Bush at that time: Mr. President, may I come up with a plan?
May I then recruit a team, subject to your approval, of course? So I
went to recruit David Kearns, the former head of Xerox, and Diane
Ravage, one of the most distinguished historians in America, Carolyn
Reed Wallace, the vice chancellor of the City University of New York.
All of them, of course, were not allowed to go to their office. Once
the President nominates and before they are confirmed, they must fill
out all these forms, maybe not spend as much money as Senator Baker
did, but the same forms. They must go through this elaborate FBI check.
They must go through the President's political process, and then they
come over here. And if there is a divided body--for example, we have a
Republican President and a Democratic Senate--it takes a little longer.
What is the point of all this? The point of all this is we cannot get
our work done. The voters all tune in to a Presidential debate, such as
we saw last night--two distinguished competitors, both doing pretty
well, I thought--they take off in January and say: Let's go this way
and what happens? There is nobody to work for them. They cannot even go
to their offices. They are all down here filling out forms that are
going to cost them more than they make in their first year.
This is a problem. Who is at fault? A lot of places are at fault.
Partisan politics is sometimes at fault. When I was going through
confirmation, I went around to see another former Member of this body,
Senator Warren Rudman. He told me what happened in 1976. He was
nominated by President Ford to the Federal Communications Commission, I
believe, and a Senator from New Hampshire put a hold on his nomination.
It went along that way until the people of New Hampshire said: What
is wrong with Warren Rudman? He must be a crook, he must have stolen
something or else the Senate would be acting on his nomination. Out of
embarrassment, Warren Rudman, a private citizen, asked President Ford
to withdraw his name from consideration in the Senate. Then Senator
Rudman ran against the Senator who put a hold on his name, defeated
him, and served in this body.
I am not sure we can pass any law or change any rule that will
prevent that kind of partisan politics, but we should be aware that is
part of the problem.
Senator Voinovich's amendment does address some areas we can fix. One
is there may be too many jobs subject to this kind of intensive review.
Mr. President, 3,361 is a lot of Presidential appointments to have to
go through that time-consuming, weeks-long process. It is too many jobs
to leave vacant at the beginning of a new administration when we all
expect a new President to come in and say: Let's go in this direction.
It is too many jobs to leave vacant, the 9/11 Commission said,
especially when we are dealing with the national security of the United
States, and a great many of those men and women are people we are
relying upon to protect us.
The FBI review takes a long time. Maybe that could be simplified. If
they are doing 3,361 FBI reviews at one time and the FBI's major goal
is supposed to be counterterrorism, maybe that is something we should
be looking at as well.
Then we get busy. An example exists today, and this is in no way
criticism, but it is an example of how we get busy. The President on
May 20 nominated Edwin Williamson to be Director of the Office of
Ethics for our Government. This is the very office that contributes to
a lot of the questions and reviews that slow down the process. That was
May 20. His hearing before the full committee is next week.
Everyone in the Senate can understand the Governmental Affairs
Committee has been busy the last 8 weeks, but, nevertheless, we have a
process that when we get busy, sometimes we contribute to the delay.
So the Voinovich amendment does not by itself solve the problem. It
sets in motion a series of reviews and studies and discussions that
might help solve the problem.
The reason for my coming to the floor today is to say to the
distinguished Senator from Connecticut and to the distinguished Senator
from Maine, and the President pro tempore, I hope we keep this high
enough on our agenda that it does not slip to the back page again.
Former Senator Fred Thompson prepared legislation on this issue. This
is a lot like many of the issues that have come up with national
intelligence reform. There have been about 30 or so reviews since World
War II on national intelligence reform, and they often slip to the back
pages, to the back burner, and we do not get it done.
This time we are getting it done. We have also taken steps on another
so-called back-burner issue, as the 9/11 Commission put it and that is,
speeding up the nomination--financial reporting, security clearances,
and confirmation process for officials nominated by the President at
the start of an administration. It is my hope that over the next year,
the reviews mentioned in the Voinovich amendment will go forward, that
we will simplify the process. Of course, for the national security
officials, we can all see the urgent need for that.
Of course, we do not want them sitting outside their offices next
February out of courtesy to us when there is some attack on the United
States that they might have helped prevent, but at the same time we do
not want students going to college with some Secretary of Education
sitting outside his office not allowed to go in. We do not want Head
Start dollars being spent with some Secretary of Health and Human
Services sitting outside her offices not allowed to go in. We need to
have firm deadlines and firm dates, simplified forms, out of respect to
the people the President nominates, out of respect to the voters who
expect a President to be able to act, and out of respect to ourselves.
There will occasionally be a nominee--we are not talking about
judicial nominees--there will occasionally be one of the 3,361
executive nominations where this is a problem, that requires an
extended debate--and we are fully capable of doing that in the Senate--
but the rest of the nominations ought to speed through on a fairly
automatic, simplified review, allowing the executive branch to be in a
position to see urgent needs, develop a strategy, and try to persuade
half of us that he is right, which is the job of the President.
I thank the managers of the bill for this time. I applaud them for
their bipartisan action on this bill and their work on the committee. I
am glad they adopted the amendment yesterday, and I look forward to
working with them
[[Page S10201]]
over the next several months to see that it does not slide back to the
back burner and get lost so that men of the stature of Howard Baker
have to spend more than they earn in their first year in Government
filling out the forms we require of them even though we have known them
and known everything about them for 25 years.
I yield the floor.
The PRESIDENT pro tempore. The Senator from Connecticut.
Mr. LIEBERMAN. Mr. President, I rise first to thank the Senator from
Tennessee for taking the time to come to the Senate floor to express
his thoughts, which he has talked to Senator Collins and me about
earlier. I admire his focus on this area as well as the work and focus
of the Senator from Ohio, Mr. Voinovich.
The fact is that this is one of those aspects of governmental process
and procedure that never gets much public attention but has great
consequences for the public, and in this case it is relevant to the
underlying bill for national security. There is not much political plus
in making this a matter one focuses on in the sense that it does not
get headlines, but it is a critically important matter because, as the
Senator says so well and eloquently, the delay caused in confirming the
nominees has an effect on the quality of public service, in fact has an
effect on the content of national security if people cannot be put into
the positions where they are needed early enough.
So I thank the Senator. I encourage the Senator--although I probably
do not have to--to stay aggressive, to make sure that not only the
amendment the Senator from Tennessee and the Senator from Ohio
sponsored yesterday that was adopted on the bill is put into place but,
more generally, to make sure we fix this.
The Senator from Tennessee has some great anecdotes, too. It is
pretty startling to have heard that Howard Baker, a great former Member
of this body, spent more time filling out the forms, hiring people to
help him fill out the forms, to be Ambassador to Japan than he was
going to receive as a salary for the first year of his service. That
ought not to happen. Obviously, one of the things that also does, which
the Senator knows and has spoken to, is discourage people who may not
have the resources to pay for that kind of consultation from going into
public service where we need them.
I thank my friend from Tennessee.
I rise briefly to speak in support of the--Mr. President, I am going
to hold this statement, which is of a timeless nature, so I can deliver
it, I am sure, at any point in the day where there may be a lull. This
time was devoted to Senator Byrd to offer an amendment. I did not
realize he was here. I welcome him to the Chamber and look forward to
hearing his statement.
The PRESIDENT pro tempore. The Senator from West Virginia.
Mr. BYRD. Mr. President, I ask unanimous consent to offer an
amendment that affects the bill in more than one place. I have cleared
this with the two managers.
The PRESIDENT pro tempore. Is there objection to the request?
Without objection, it is so ordered
Amendment No. 3845
Mr. BYRD. Mr. President, I call up amendment No. 3845.
The PRESIDENT pro tempore. Without objection, the pending amendment
is set aside.
The clerk will report.
The assistant legislative clerk read as follows:
The Senator from West Virginia [Mr. Byrd], for himself, Mr.
Stevens, Mr. Inouye, Mr. Warner, Mr. Harkin and Mr. Johnson,
proposes an amendment numbered 3845.
Mr. BYRD. Mr. President, I ask unanimous consent that the reading of
the amendment be dispensed with.
The PRESIDENT pro tempore. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To enhance the role of Congress in the oversight of the
intelligence and intelligence-related activities of the United States
Government)
On page 10, between lines 16 and 17, insert the following:
(d) Removal.--The National Intelligence Director may be
removed from office by the President. The President shall
communicate to each House of Congress the reasons for the
removal of a National Intelligence Director from office.
On page 10, line 17, strike ``(d)'' and insert ``(e)''.
On page 11, line 3, strike ``(e)'' and insert ``(f)''.
On page 11, line 5, strike ``subsection (c)'' and insert
``subsection (e)''.
On page 22, line 11, strike ``(f) and (g)'' and insert
``(e), (f), and (g)''.
On page 24, beginning on line 1, strike ``, pursuant to
subsection (e),''.
On page 24, strike line 8 and all that follows through age
25, line 20.
On page 25, line 21, strike ``(f)'' and insert ``(e)''.
On page 27, strike line 1 and all that follows through page
30, line 22, and insert the following:
(f) Role of National Intelligence Director in
Reprogramming.--(1) No funds made available under the
National Intelligence Program may be transferred or
reprogrammed without the prior approval of the National
Intelligence Director, except in accordance with procedures
prescribed by the National Intelligence Director.
(2) The Secretary of Defense shall consult with the
National Intelligence Director before transferring or
reprogramming funds made available under the Joint Military
Intelligence Program.
(g) Transfer of Funds or Personnel Within National
Intelligence Program.--(1) In addition to any other
authorities available under law for such purposes, the
National Intelligence Director, with the approval of the
Director of the Office of Management and Budget--
(A) may transfer funds appropriated for a program within
the National Intelligence Program to another such program;
and
(B) in accordance with procedures to be developed by the
National Intelligence Director, the heads of the departments
and agencies concerned may transfer personnel authorized for
an element of the intelligence community to another such
element for periods up to one year.
(2) The amounts available for transfer in the National
Intelligence Program in any given fiscal year, and the terms
and conditions governing such transfers, are subject to the
provisions of annual appropriations Acts and this subsection.
(3)(A) A transfer of funds or personnel may be made under
this subsection only if--
(i) the funds or personnel are being transferred to an
activity that is a higher priority intelligence activity;
(ii) the need for funds or personnel for such activity is
based on unforeseen requirements;
(iii) the transfer does not involve a transfer of funds to
the Reserve for Contingencies of the National Intelligence
Director;
(iv) in the case of a transfer of funds, the transfer
results in a cumulative transfer of funds out of any
department, agency, or element, as appropriate, funded in the
National Intelligence Program in a single fiscal year--
(I) that is less than $100,000,000; and
(II) that is less than 5 percent of amounts available to
such department, agency, or element; and
(v) the transfer does not terminate a program.
(B) A transfer may be made without regard to a limitation
set forth in clause (iv) or (v) of subparagraph (A) if the
transfer has the concurrence of the head of the department,
agency, or element concerned. The authority to provide such
concurrence may only be delegated by the head of the
department, agency, or element concerned to the deputy of
such officer.
(4) Funds transferred under this subsection shall remain
available for the same period as the appropriations account
to which transferred.
(5) Any transfer of funds under this subsection shall be
carried out in accordance with existing procedures applicable
to reprogramming notifications for the appropriate
congressional committees. Any proposed transfer for which
notice is given to the appropriate congressional committees
shall be accompanied by a report explaining the nature of the
proposed transfer and how it satisfies the requirements of
this subsection. In addition, the congressional intelligence
committees shall be promptly notified of any transfer of
funds made pursuant to this subsection in any case in which
the transfer would not have otherwise required reprogramming
notification under procedures in effect as of the date of the
enactment of this subsection.
(6)(A) The National Intelligence Director shall promptly
submit a report on any transfer of personnel under this
subsection to--
(i) the congressional intelligence committees;
(ii) the Committee on Appropriations of the Senate and the
Committee on Appropriations of the House of Representatives;
(iii) in the case of the transfer of personnel to or from
the Department of Defense, the Committee on Armed Services of
the Senate and the Committee on Armed Services of the House
of Representatives; and
(iv) in the case of the transfer of personnel to or from
the Department of Justice, to the Committees on the Judiciary
of the Senate and the House of Representatives.
(B) The Director shall include in any such report an
explanation of the nature of the transfer and how it
satisfies the requirements of this subsection.
On page 47, line 19, insert before the period the following
``, by and with the advice and consent of the Senate''.
On page 53, line 2, insert before the period the following
``, by and with the advice and consent of the Senate''.
On page 55, beginning on line 5, strike ``the National
Intelligence Director'' and insert
[[Page S10202]]
``the President, by and with the advice and consent of the
Senate''.
On page 60, beginning on line 14, strike ``appropriately''.
On page 61, line 11, insert ``and Congress'' after
``Director''.
On page 61, line 21, strike ``significant''.
On page 63, line 16, insert ``and the congressional
intelligence committees'' after ``National Intelligence
Director''.
On page 138, beginning on line 21, strike ``and to
Congress'' and insert ``, to the Select Committee on
Intelligence and the Committees on Appropriations and
Governmental Affairs of the Senate, and to the Permanent
Select Committee on Intelligence and the Committees on
Appropriations and Government Reform of the House of
Representatives''.
On page 140, strike lines 5 through 14 and insert the
following:
(2) Deputy director of management and budget for
information sharing.--There is within the Office of
Management and Budget a Deputy Director of Management and
Budget for Information Sharing who shall be appointed by the
President, by and with the advice and consent of the Senate.
The Deputy Director shall carry out the day-to-day duties of
the Director specified in this section. The Deputy Director
shall report directly to the Director of the Office of
Management and Budget. The Deputy Director shall be paid at
On page 174, strike lines 14 through 22.
Mr. BYRD. Mr. President, I ask unanimous consent that the following
Senators be added as cosponsors of my amendment: Senators Stevens,
Inouye, Warner, Harkin, and Johnson.
The PRESIDENT pro tempore. Without objection, it is so ordered.
Mr. BYRD. Mr. President, first, I express my appreciation to the two
managers for their courtesies that they never fail to extend. I also
want to express my appreciation to the distinguished President pro
tempore who is in the chair this morning, Senator Stevens, my soulmate
on the Appropriations Committee.
In 2001, we witnessed the failure of our Government to utilize its
intelligence capabilities to protect our Nation against a terrorist
attack. For too long, the Congress has deferred to the executive branch
on intelligence matters. Congress has failed to vigorously discharge
its constitutional oversight responsibilities. I do not say that by way
of finding fault with any Senator.
The 9/11 Commission illustrated the dangers of this practice. The
consequence has been foreign policy failures, prison scandals,
politicized intelligence that has led not only to a desperate state of
affairs in Iraq but has also left our Nation vulnerable to further
terrorist attacks. It is painfully clear that there are dire
consequences when the Congress abdicates its constitutional duties to
oversee the intelligence agencies within the executive branch.
Senators need to be reminded--I need to be reminded as well--that the
Congress is a consumer of intelligence. Senators must have access to
good intelligence to make informed decisions about our military, about
our foreign policy, about the solemn charge to authorize war, and that
remains a constitutional function, authorization of war.
I am sorry to say I did not hear anybody in last night's debate on
either side mention the Constitution of the United States, not once.
The Constitution gives Congress alone the power to declare war or
authorize war. The Congress must ensure that it is fully and currently
informed of all matters that may bear on the exercise of that
constitutional authority. Senators ought to be cautious about
intelligence reforms and ensure that the role of the Congress in
intelligence matters is not undermined. Reform means fixing what has
gone wrong, not giving the executive branch more authority to conduct
end runs around the Congress.
When I speak of the executive branch, I speak generically, both when
it is under Democratic control and Republican control. We must ensure
that the top national security officials specified in this bill are
subject to Senate confirmation so that they are held accountable to the
elected representatives of the people.
The first three words in the preamble of the Constitution are, ``We
the people. . . .'' ``We the people. . . .'' And yet, I say, that
Constitution was not mentioned once last night.
We must ensure that Senators have access to information necessary to
fulfill their Constitutional duties. We must ensure that the Congress
does not codify loopholes through which the executive can deny the
Congress relevant information. Perhaps most importantly, we must ensure
that funds appropriated by the Congress cannot be rerouted without the
consent of the people's representatives in Congress.
The Governmental Affairs Committee has ensured accountability to the
Congress in many of these areas, but I believe more can be done.
This is an amendment which I have proposed, along with Senators
Stevens, Inouye, Warner, Harkin, and Johnson to remove the qualifiers
on Congressional access to information, to ensure that the Congress's
role in intelligence matters is preserved, and to ensure that the
American people are protected.
This amendment requires Senate confirmation of the following
positions within the National Intelligence Authority and the Office of
Management and Budget: four deputy national intelligence directors, the
Officer for Civil Rights and Liberties, the Privacy Officer, and the
Deputy Director of OMB for Information Sharing. It is vital that the
Congress have access to these officials and be able to hold them
accountable for their decisions, particularly in the area of civil
liberties.
To further that goal, my amendment requires that the Inspector
General of the National Intelligence Authority keep the congressional
intelligence committees fully and currently informed of violations of
law and civil liberties.
However, the greatest protection against abuse within the
intelligence agencies is to monitor closely their budgets. The Congress
should jealously guard its power of the purse, and, to do that, I have
worked with Senators Stevens and Inouye to ensure that the authorities
granted to the national intelligence director to transfer personnel and
funding within the National Intelligence Program closely reflect
current law.
Our amendment strikes language authorizing the Treasury Secretary to
establish new budget accounts for the use of the national intelligence
director. This is a function of the Congress, which has the authority
to determine how accounts should be constructed to fund our national
intelligence.
My amendment allows the national intelligence director, with the
approval of the OMB Director, to transfer appropriated funds within the
National Intelligence Program, and the heads of the departments and
agencies to transfer personnel within the intelligence community for
periods up to 1 year, under the following conditions:
A transfer of funds or personnel may be made only to an activity that
is a higher priority; and unforeseen requirement; but not to the
Reserve for Contingencies of the national intelligence director. The
cumulative transfer in a single fiscal year must be less than $100
million and less than 5 percent of amounts available to such
department, agency, or element; and the transfer of funds cannot
terminate a program.
A transfer may be made without regard to the $100 million and 5
percent limitation if the transfer has the concurrence of the head of
the department, agency, or entity concerned--provided, always, that the
transfer conforms with the strict limitations set by the Congress each
year in its annual appropriations acts.
Funds transferred shall remain available for the same period as the
appropriations account to which transferred; and any transfer of funds
or personnel shall be reported to the appropriate congressional
committees, such as Appropriations, Judiciary, Armed Services, and
Intelligence.
I am confident that if these qualifications are adhered to, the power
of the purse will continue to rest safely in the hands of the people's
elected representatives.
In addition, Senators should take note of Section 224(b)(3) of the
pending bill, which would permit the national intelligence director,
the Director of the National Counterterrorism Center, or the Director
of a national intelligence center to withhold information requested by
the Congress if the President certifies that such information will not
be provided because the President is asserting a privilege pursuant to
the United States Constitution.
It is unclear exactly which privilege the President would invoke,
but, given the vague language contained in this provision, a bold and
impulsive administration, much like the one currently
[[Page S10203]]
inhabiting the White House, could concoct nearly any excuse to invoke a
so-called ``privilege'' to withhold documents requested by the
Congress. Giving any administration an unrestrained green light to
trump any and all forthcoming Congressional requests for information,
based on some undefined and nefarious assertion of executive privilege
as described in this provision, would be an unmitigated disaster. My
amendment strikes that egregious language.
It is my hope, as well as the hope of my colleagues who cosponsored
this measure with me, that this amendment will ensure that the
Congress's Constitutional role in intelligence and foreign policy
matters is safeguarded.
However, Senators should understand that the statutory authority to
oversee our intelligence community means very little if it is not
utilized. We must be vigilant in our oversight. We must be aggressive
in our inquiries. We must not abdicate our Constitutional duties.
I urge the adoption of my amendment.
I yield the floor.
The PRESIDING OFFICER (Mr. Chambliss). The Senator from Connecticut.
Mr. LIEBERMAN. Mr. President, needless to say, I thank the Senator
from West Virginia, whom, as does everyone in the Chamber, I greatly
admire. He is a real authority on this matter, so I speak both with
respect and a certain sense of humility.
This recommendation that Senator Collins and I and our committee
brought before the Senate rose out of reality. And the reality is that
we have an intelligence community with a lot of extraordinary people
and technological assets but, as the 9/11 Commission said, there is no
one in charge. I repeat, it is like a football team with great players
but no quarterback. In fact, some of the players, as great as they are,
are playing in a different stadium than the one where the game is.
The 9/11 Commission has said to us that its foremost goal, the most
urgent recommendation it makes to the Congress for what to do if we
want to believe that we have done everything we can to prevent a
terrorist attack of the scope of 9/11 from happening in this country
again, is to create--establish a strong national intelligence director,
a leader where there is no leader, a quarterback where there is no
quarterback. That is what Senator Collins and I have done in our
proposal.
A strong national director--but what is the element of strength? It
is budget authority. It is the power to bring together the agencies
under the director for a unity of effort, like the joint commands in
our military which grew out of Goldwater-Nichols, after a period of
time and a lot of opposition when they were first considered on the
floor, not dissimilar to some of the opposition and anxiety that has
been expressed about the national intelligence director in our time.
They worked extremely well.
So we have created a strong director with budget authority to
formulate budgets, to receive funds, to allocate them--with
justification, not wantonly; to transfer budget, transfer funds to meet
an emergency; to transfer personnel to achieve a national purpose.
In our deliberations in the Governmental Affairs Committee we see
warning after warning that if you are going to do this right, you have
to give this national intelligence director real power.
In this morning's paper, the Washington Post, Friday, October 1, an
article by Charles Babington quotes from a press conference I presume
by the Chair and Cochair of the 9/11 Commission, Governor Kean, former
Republican Governor of New Jersey, and Congressman Hamilton, former
Democratic Congressman from Indiana. Governor Kean says at one point,
the story says:
Governor Kean meanwhile spoke sharply against House
provisions and proposed Senate amendments that would limit
the national intelligence director's authority over spending
and personnel decisions in agencies under them.
It goes on to say:
The House bill will keep more of that power in the
Pentagon.
Then Governor Kean says:
On behalf of the nonpartisan commission, this is not an
area where one can compromise. If you are not going to create
a strong national intelligence director with powers both
appointive and over the budget, don't do it.
I repeat:
If you are not going to create a strong national
intelligence director with powers both appointive and over
the budget, don't do it.
That is the advice we heard over and over again from former Directors
of Central Intelligence, from experts in the field, from members of the
Commission.
I say respectfully that the amendment which Senator Byrd and the
distinguished list of cosponsors put before us this morning would have
the effect of weakening the authority of the national intelligence
director and, therefore, bring us back to the place where we were,
where there wasn't a strong quarterback, where there wasn't a strong
general, if you will, of our intelligence forces in the war against
terrorism.
As I read it, it strikes the section that establishes accounts for
the national intelligence program funds under the jurisdiction of the
national intelligence director, and the national intelligence director
would control the management, including the allotment of appropriated
funds to the elements of the intelligence community.
I would like to have some discussion on this. But as I read one of
the two parts of this which strike me as most troubling, it is the part
that seems to say that our attempt in this bill--our clear intention
stated in the bill--is to make sure that strange situation we have
where 80 percent of the funding for intelligence, billions and billions
of dollars, goes not to the intelligence community first but to the
Department of Defense. The Department of Defense is a critical--in some
sense, the largest--customer of intelligence, but it is not the only
customer. The President of the United States is the No. 1 customer. The
Department of State, the Department of Homeland Security, FBI--one
could go on and on--they are also important users of intelligence.
We have said that the funds of the national intelligence program
budget should go to the national intelligence director and give that
person the authority that comes with the money to allocate those funds
throughout the agencies underneath him, and give him thereby some clout
to create unity of effort, to bring people together, to overcome the
weaknesses.
As the 9/11 Commission Report describes it--and Senator Collins and I
keep telling the story--George Tenet, former Director of Central
Intelligence, in 1998, after a series of al-Qaida attacks on Americans
and American targets abroad, declares war on terrorism. It was a
classified document within the intelligence community and it is now
public. It states the case very strongly. It says we have to devote all
of our resources to it, and nothing happened.
Senator Byrd is a great student of the Bible. I so appreciate it. He
brought it with him to the Senate floor yesterday. I take this
opportunity to quote from the Bible. Perhaps it was from Corinthians.
``If the sound of the trumpet be uncertain, who will follow into
battle?''
My worry here is that in this case, the trumpet is money. If the
authority of the national intelligence director over the funds is
uncertain, then I worry that the troops are not going to follow them
into battle just as they didn't follow George Tenet when they declared
war or terrorists and terrorism in 1998. We might have even been better
off and maybe even have avoided 9/11 if something had happened in
response to that.
This amendment seems to say that the money we want to go to the
national intelligence director can't because in our attempt to
establish accounts, we now, in this act of Congress--Senator Byrd is
absolutely right, this is a congressional decision, but we are offering
our colleagues that decision, which is to set up those accounts in the
Treasury Department for the national intelligence director so that
director can receive the funds and then allocate them.
Second, the two elements of authority for the national intelligence
director as the general of our intelligence forces are to transfer
personnel and funds. I appreciate the fact that this amendment does not
take away that authority, and when Senator Collins and I started out,
we worried people
[[Page S10204]]
would resist that authority altogether in the national intelligence
director. So I appreciate that. But it does limit the authority of the
director to transfer personnel and money in a way that I think weakens
the director and undercuts the purpose we want and the reasons we want
them to be powerful, to give this intelligence force the flexibility to
focus, the agility to respond to realities in the world.
These terrorists are not only brutal, not only inhumane, not only
don't value human life, not only convince themselves zealously that
they are doing God's work by killing God's children wantonly, but they
are agile. They will look for weaknesses in the system and move to
attack. That is why the national intelligence director has to have the
ability to move money quickly. It may be that there is a crisis area
somewhere or a new kind of threat to the United States and the director
decides he has to move funds to meet that threat.
This is not an authority that is unlimited or even beyond the control
of the law today. Our bill makes sure that there is congressional
oversight on the transfer of the funds. The amendment would limit the
transfer of funds. It would have to be less than $100 million and less
than 5 percent of the budget of the entity from which the money is
being transferred unless the relevant department head concurs in the
transfer.
I want to assure the Chamber and Senator Byrd that our amendment,
though it does not put those limits on the transfer because we don't
know what kind of threat may emerge and where the national intelligence
director may feel in the national interest he wants to move those
funds, makes sure there is congressional oversight. It provides that
any transfer of funds by the national intelligence director must be
carried out in accordance with the existing congressional notification
procedures. Congress still has the right to approve.
Moreover, the national intelligence director is required to submit a
report to the appropriate committees of Congress explaining the nature
of the transfer and how it meets the relevant statutory requirements.
Finally, our bill also requires that any transfer of funds or
personnel not exceed applicable ceilings established in law for such.
This means that while we are setting the standard for the national
intelligence director, Congress each year as it adopts the budget
reserves the right to put instructions in that. I might oppose it, but
it includes the possibility of limiting the transfers, as has happened
in the past. We wanted to make sure--in some sense to reassure
ourselves and our appropriators--that this bill says that any transfer
of funds or personnel would not exceed applicable ceilings established
in law for such transfers.
We want to provide the national intelligence director with the
necessary flexibility and force to respond with speed to a crisis, and
not establish, therefore, permanent caps on this legislation that might
hinder the director's ability to make those changes that are necessary.
Under the current system, the DCI lacks budget power. DOD controls 80
percent of the intelligence budget, whereas the director of central
intelligence effectively only controls a budget of one agency, the CIA.
Secretary Powell commented on this current reality at our hearing on
September 13, 2004, by saying:
The DCI was there before but the DCI did not have that kind
of authority, and in this town it's budget authority that
counts.
Chairman Kean and Vice Chairman Hamilton said in their testimony at
our first hearing on July 30:
The national intelligence director would not be like other
czars who get the title but have no meaningful authority. He
will control national intelligence program purse strings.
For those reasons, respectfully, this amendment would seriously
weaken the authority of the national intelligence director, and
therefore, I believe, the director's ability to protect our national
security in an age of terrorism.
I yield the floor.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Mr. President, before I comment on the specifics of the
amendment of the Senator from West Virginia, let me join Senator
Lieberman in expressing the utmost respect that I have for the Senator
from West Virginia. His devotion to the Constitution, to the Senate, to
the country, and to his family is truly legendary. I have learned so
much just from watching the Senator from West Virginia. In fact, he
inspired me to get a copy of the Constitution, and while I don't carry
it with me as he does, I have it in my briefcase. It was his example
that inspired me to do that.
Like Senator Lieberman, I have, nevertheless, many concerns about the
pending amendment. In drafting our bill, we made very clear the
authority that the new national intelligence director would have. We
did not want to simply create another layer of bureaucracy. What we
wanted to do is to empower the NID with significant budget personnel,
standard-setting authority, so that this individual could make a
difference.
I remember in the testimony before our committee the consensus among
the witnesses was that in order for the NID to be effective, strong
authority was absolutely critical. Indeed, the assistant DCI for
community management said it very forthrightly. He testified as
follows:
We must be flexible in shifting people and money to respond
to emerging priorities. Today's intelligence budget system
does not meet this criteria.
Senator Byrd's amendment imposes significant restrictions on the
ability of NID to transfer personnel and to transfer funds. That
concerns me greatly.
Under the Collins-Lieberman bill, with OMB approval, the NID may
transfer or reprogram funds appropriated for a program within the
national intelligence budget to another program. The NID is required to
consult with the heads of the affected agencies prior to implementing
such a reprogramming or transfer, but our bill does not require their
approval. We make very clear that the reprogramming and transferring
approvals and restrictions as far as congressional authority are
included in our bill, as well.
If we require the concurrence of the agency heads before personnel or
money can be moved around, we essentially have made no improvement in
the current system. That is not progress. In fact, it is exactly the
problem the 9/11 Commission identified over and over again as a major
flaw in the current system.
The NID needs to be able to marshal the people, the funds, and the
resources necessary to counter the threats we face. That is the bottom
line.
The current authorities for the DCI are insufficient because they
permit agencies to prevent the DCI from transferring funds or people
simply by objective. That is what we need to change.
I am also concerned about making additional positions created by this
bill subject to Senate confirmation. The privacy and civil rights
officers at the Department of Homeland Security are not Senate-
confirmed positions. I see no reason for treating the privacy and civil
rights officers that would be created by this bill any differently.
There is another point that I make about the restrictions in the
Senator's amendments on reprogramming and transfer authority. That is,
if we are going to impose these kinds of restrictions, we are not
improving the system in any significant way, and we are allowing the
long delays that plague the current system to continue.
Acting CIA Director John McLaughlin told me it can take as long as 5
months for him to reprogram funds. In the threat environment we face
today, we cannot afford a 5-month delay in transferring urgently needed
funds to counter the threat we face.
The amendment of the Senator from West Virginia would represent a
significant weakening of the authority in this bill, and I urge my
colleagues to oppose it.
The PRESIDING OFFICER (Mrs. Dole). The Senator from West Virginia.
Mr. BYRD. Walt Whitman said:
A man is a great thing upon the Earth, and through
eternity--but every jot of greatness of man is unfolded out
of woman.
So let me pay tribute to our Presiding Officer at this moment.
Madam President, I have the utmost respect for the two managers of
this bill. I have the utmost respect for their
[[Page S10205]]
dedication and for the knowledge which they bring to bear upon this
subject. I am not a member of the committee that has jurisdiction over
the legislation before the Senate. So I salute them and tip my hat to
them and bow to them.
So what I say is certainly in no fashion, in no way or form any
criticism of them. They are doing the best they can do.
But the Constitution of the United States still lives. It still
governs. Let's read this paragraph from section 9 of the U.S.
Constitution:
No money shall be drawn from the Treasury, but in
Consequence of Appropriations made by Law; and a regular
Statement and Account of the Receipts and Expenditures of all
public Money shall be published from time to time.
Let these words sink in:
. . . and a regular Statement and Account of the Receipts and
Expenditures of all public Money shall be published from time
to time.
We have to keep that provision in mind.
The amendment I have offered today simply ensures that the national
intelligence director spends money in accordance with the annual
appropriations bills. It provides the flexibility that the director may
require but limits that flexibility to the laws passed by Congress and
to the knowledge that there is this provision:
. . . a regular Statement and Account of the Receipts and
Expenditures of all public money--
``All public money.''
. . . all public money shall be published from time to time.
We cannot allow this national intelligence director to spend the
people's tax dollars without restraint, without some limitation,
without some restraint. A $40 billion blank check? We cannot allow the
national intelligence director to spend money without regard to
Congress. There must be some limitations on his spending authority.
Without this amendment, the intelligence director, and not the
Congress, will determine how certain appropriated moneys are spent. We
must not remove all limitations on this new intelligence director. If
we yield the power of the purse to this new intelligence director, then
we have only limited means to rein him in if there are abuses of power.
My amendment limits the transfer of appropriations to $100 million
and even allows the Department heads to waive that limitation as long
as it is consistent with appropriations law. That, it seems to me,
should be more than enough flexibility. We must retain some limitation.
The intelligence director must not be allowed to write his own
appropriations bill. That would elevate him above the Congress. That
will elevate him, an intelligence director, above the people's elected
representatives in Congress.
We talk about the trumpet that gives an uncertain sound. Yes. How can
we be certain as to what we are doing when we are rushed and pressured
into passing legislation as major as this legislation in such a limited
time, which is hours? We are being pressured to pass this legislation
before we adjourn sine die. This is massive legislation. It is far-
reaching legislation. The Congress should not have to operate under a
hammer, as we are being driven here.
Henry Kissinger came before the Appropriations Committee when Senator
Stevens held those hearings. I compliment my chairman, Mr. Stevens, on
having those hearings. Henry Kissinger, a man with vast experience,
vast knowledge, advised us not to pass this gargantuan measure in such
a hurry and under such pressure and during a Presidential campaign.
I say to my colleagues, we ought not bend to the lash of the whip on
the part of the leadership, on the part of the administration, on the
part of anyone else. We should take more time. We do not know what we
are doing here. I am seeking to protect the people's representatives
and the Congress from making what could be a major mistake.
We were rushed into passing legislation creating a Department of
Homeland Security, were we not? I tried to get more time. I tried to
get the leadership on both sides to listen. They would not listen. Now
we find that there are major problems with that Department.
On that fateful occasion on October 11, when the Senate voted to
shift the constitutional power to declare war from the Congress--not
just one body of Congress, but both bodies of Congress--to one man, oh,
what a terrible mistake that was, what a terrible error. We were told:
Let's get it behind us. Let's get it behind us. Let's get it behind us.
The idea was to get that legislation passed before that election. So
the Senate passed that legislation in a hurry, on October 11 of that
year.
Oh, we will always rue that day that the Senate bent to the urgings
of the leadership, which said: Let's get it behind us. We have not
gotten it behind us. We did not get it behind us. I said at the time we
would not get it behind us. I said at the time that the President, Mr.
Bush, would not let us get it behind us. That was what he wanted. He
wanted the Senate to bend in that critical hour before an election so
that the Senators who voted on that measure would be somehow conscious
that there was an election down the road, and particularly those who
were running would be under the whiplash of an election.
Oh, what a terrible mistake. I felt so ashamed. For the first time in
my 46 years in this Senate, I felt ashamed that the Senate was
knuckling under to the executive branch and making a mistake which is
rued to this day and will be rued to the end of time. That blotch upon
the escutcheon of this great body, the first time in my 46 years that I
was ashamed, this Senate stood mute. It stood bowed. It was
intimidated.
And we can make another mistake if we go and rush in too big a hurry.
We are doing a big thing here. I do not set myself up as anyone who has
the vast knowledge that Mr. Lieberman has or that Ms. Collins has over
this subject matter. I am not on that committee. But I do know when we
are being pressured to act in too big a hurry. This is a big bill. Why
can't we wait until after the first of the year? Why can't we wait
until a new Congress, perhaps with a new President--who knows?--a new
Chief Executive? Why can't we wait and do the job right? This is a job
that we ought to do right and not do it under the gun.
I do not know what is in this bill. I am not on the committee. I do
not know what is in this bill. I do not claim to know what is in the
bill. But I tell you, we must not remove all limitations on this new
intelligence director. Why, this man is going to be God when it comes
to appropriations and legislation and matters affecting the people.
This is the perfect example of how we are rushing through this
intelligence bill without fully understanding what we are doing. I do
not understand what we are doing, and I need to understand what we are
doing. To properly represent the people from West Virginia, I need to
understand what we are doing.
Now, fortunately, I have a good colleague on the Intelligence
Committee, Senator Rockefeller. But I tell you, we are dealing with
matters that go to the heart--the heart--of a free government.
Englishmen spilled their blood for centuries to wield the power of
the purse away from monarchs in England. They shed their blood,
yes, going all the way back to the Magna Carta, the great charter, in
1215. It was signed on the banks of the Thames River.
I think we ought to go a little slower. This is a perfect example of
how we are rushing through this intelligence bill. I say it with all
due respect to Senator Lieberman and Senator Collins. I admire them,
but I admire the Constitution also. I think we ought to stop, look, and
listen, and slow down a little bit here.
Without this amendment, the Congress will cede its power of the purse
just as it ceded the authority to declare war 2 years ago. We owe it to
the 9/11 families to get this right. I say to my staff all the time: If
you don't do the job right, how are you going to find time to do it
over? That applies in this instance, too. I say that with all due
respect.
There is nothing to keep my colleague--my cherished friend, for whom
I have great admiration--from coming back next year, from sitting in
the driver's seat and doing this thing and doing it perhaps better than
he has done it in the first instance. I have no doubt that he would go
at it with a will.
In the long run, the victims of 9/11 will not forgive us if we give
away the
[[Page S10206]]
power of the purse. And don't forget, it is not just that first
sentence. There is more to it than the first sentence:
No money shall be drawn from the Treasury, but in
Consequence of Appropriations made by Law; and a regular
Statement and Account of the Receipts and Expenditures of
all--
Not just some, all--
public Money shall be published from time to time.
Better ponder that bit of verbiage before we get in too big a hurry
here.
We will have some opportunities to talk further about this amendment.
In sitting down, let me again pay homage to my friend, a public servant
whom I long have admired, and this fine lady. I tell you, she is a
stalwart. But God save the Constitution. God save it. Let's don't be in
too big a hurry. Take a little more time and do it right.
I yield the floor.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. LIEBERMAN. Madam President, let me first thank the Senator from
West Virginia for his kind words. The truth is, these are critically
important matters we are debating. I feel a sense of responsibility and
honor in having the opportunity to speak to them. But I must say, to be
involved in a debate such as this with the Senator from West Virginia
is in itself an honor.
We disagree on this particular amendment, but I so respect the core
of his values that motivate him and guide him every day. I know he only
wishes the best for our country and for our Congress. I don't say it
lightly. I hope he understands these are not reflexive words and
praise. It is an honor to be involved in this kind of debate with the
Senator from West Virginia, who is a very vital Member of the Senate
today but a part of Senate and American history. I thank him very much
for caring enough about what we are doing to come here this morning and
offer this amendment.
Of course, he is the man who carries the Constitution right by his
heart and reminds us of what it requires of us. It is a founding
document. It is in many ways a sacred document to all of us Americans.
I assure him, with regard to the sections of the Constitution he read
about the appropriate allocation of responsibility of the Congress and
the executive branch regarding fiscal decisions, there is nothing in
this bill Senator Collins and I bring to the Senate that would alter
that balance in any way. I will speak to that in a bit.
There is an alteration of authority and power in this proposal
Senator Collins and I have made, but it is not altering the existing,
constitutionally based power relationship between Congress and the
executive. It does alter the allocation of authority and money and,
therefore, power between various agencies of the executive branch. But
there is no change in the congressional-executive relationship.
Yes, there are some necessary changes in the relationship between the
Department of Defense, CIA, FBI, and a new national intelligence
director who gains power here. So some may have to give up a little
bit, but that is in the national interest. That is the first point I
want to assure the Senator on.
Senator Collins and I are not only devoted to the Constitution, we
are devoted to the critical role the Constitution gives Congress in
these matters. I want to assure the Senator, again, that we have done
nothing to alter the authority of Congress.
I will read from page 28 of our bill, section (4). This is the
section that goes to the transfer authority of the national
intelligence director. On line 23, it reads:
Any transfer of funds under this subsection shall be
carried out in accordance with existing procedures applicable
to reprogramming notifications for the appropriate
congressional committees.
Then it goes on:
The National Intelligence Director shall promptly submit to
the appropriate committees of Congress a report on any
transfer of personnel made pursuant to this subsection.
Of course, there is a section in here that ``requires any transfer of
funds or personnel not exceed applicable ceilings established in law
for such transfers.'' So any succeeding Congress reserves the right to
establish such limits in law, and they will not be altered by the
Collins-Lieberman proposal.
The second thing to say is the authority we give the national
intelligence director--that we believe so strongly that director
needs--is not without control. No one is going to confuse this director
with a god, even a god of intelligence. He will be a director of
intelligence but he will be limited.
For instance, transfers of personnel and budget will be subject to
the approval of the Office of Management and Budget.
So ultimately what does that mean? It means the Commander in Chief
has to approve. If there is a fear that this national intelligence
director may do some things that, let's say, the Secretary of Defense
doesn't like, the Secretary of Defense can go right to the President
and say I don't like this and please get the OMB director not to
approve these transfers. The final responsibility for the decision goes
to where it should be ultimately in our system, which is to the
President.
We also require consultation with department heads before transfers
of budget or money or personnel are made. We require that the transfers
only be made for what we call a higher priority intelligence activity.
We don't expect this to be done wantonly. We are not allowing it to be
done wantonly, to override the appropriations of Congress. We are
saying we want that director, though, to have the ability, if there is
a crisis, to move money like a general moving troops to the point where
the Army is being attacked. As I said earlier, the transfers have to
occur within applicable ceilings established by law.
So I say this, finally, to my dear friend and respected colleague
from West Virginia. There is an urgency here, which is the urgency of
the terrorist threat that we face. The 9/11 Commission has been clear
about this. They believe we are in a situation where still, today, no
one is in charge of our intelligence community. We had testimony before
our committee in terms of Osama bin Laden, that evil person who
concocted and directed, or conceived and directed the attack against
America on 9/11/01, killing almost 3,000 innocent civilians. Obviously,
he is the No. 1 target for us today. In the hunt for Osama bin Laden,
there is no one in charge. We have two or three agencies of our
Government going at this, but there is no one in charge. The national
intelligence director will put somebody in charge. That is the urgency,
that we remain at war and we are not organized as well as we should be.
The urgency is the urgency that a general in combat would feel is clear
if the enemy is taking advantage of a particular vulnerability in his
forces. He would move quickly to shore up that vulnerability. That is
what we are doing as well.
In closing, families of the victims of September 11 have formed a
group to advocate, in some ways, in the memory of their husbands,
wives, fathers, mothers, and children who were lost on September 11, to
make sure we do what they think we ought to do to protect other
families from suffering. They sent a letter to Members of Congress a
week or two ago in which they said:
Sufficient information necessary to make a decision as to a
new, improved structure for the Nation's intelligence
community is currently available to all Members of Congress.
Opinions may differ as to how improvements are best
accomplished, but those differences can be addressed within
the framework of the legislation being proposed. There is no
excuse for deferring decisionmaking, given the wealth of
information available.
Again, that is from families of the victims of September 11. I
promised that would be the last word, but this will be the last word. I
say to the Senator from West Virginia that the very introduction of
this amendment and the discussion it engenders today between yourself,
Senator Collins, and me, and hopefully other Members listening and
involved is part of the process, similar to what we went through in our
Committee. I think a lot of Members came to the Committee hearings and
deliberations, and we went on for two days of markup. We had almost 50
amendments. We conducted a very open discussion. We listened and, in
some cases, we altered language in the mark we laid down because we
thought Members made good points. In other cases, we said it hurts the
purpose of what is required. In the end, because everybody felt we
worked together and learned a lot, we were very pleased to say the bill
was reported out unanimously. I must say that one of the
[[Page S10207]]
members, when the roll was called, gave an answer that I had never
heard before. Instead of saying yea or nay, he said ``barely yea.'' We
got him just over the threshold.
My hope is that as a result of the discussion on this amendment, we
get to a point at the end of the day, or next week, that we can have a
similarly strong vote that will reflect a confidence that we have all
together learned, that we have protected our values, constitutionally
speaking, and our security, and done the best we could and will adopt
this with a real sense of confidence.
I yield the floor.
The PRESIDING OFFICER. The Senator from Maine is recognized.
Ms. COLLINS. Madam President, as we have indicated, the legislation
before the Senate is the product of a concerted effort by the
Governmental Affairs Committee to reflect the testimony of more than
two dozen witnesses at eight hearings. It reflects the recommendations
of other committees who gave us input into the legislation, and it
builds upon the work of the 9/11 Commission. But it is important to
know that the 9/11 Commission did not start from scratch, either. Its
work takes into account nearly a half century of studies on
intelligence reform, dating back to the Eisenhower administration.
Indeed, the calls for reform go back 50 years. For nearly 2 years, the
9/11 Commission conducted an investigation of unprecedented depth. They
interviewed more than 1,200 witnesses in 10 countries, yet we hear
again those who counsel: Not yet; we are going too fast; we should
wait; we need more information; under the current threat of terrorism,
the time isn't right; the highly charged political atmosphere of a
Presidential campaign creates an environment that is not right for such
an important decision.
I ask, what more information do we need? If you look at the list of
witnesses who testified before the 9/11 Commission, before the
Governmental Affairs Committee, before the Armed Services and
Intelligence Appropriations Committee, I would say, what point of view
has not been heard? What area of expertise was not explored? What more
compelling evidence do we need? I ask, if the time isn't right to act
now, when will the right time ever come? When will there be no threats?
When will we be at peace?
The war against terrorism is likely to have to continue for many
years. I believe we will have failed the American people if we do not
act on an issue that is so important to the security of our country.
I think the chairman of the 9/11 Commission, Thomas Kean, said it
best when he spoke at our very first committee hearing on July 30 of
the urgent need to move forward with these reforms. This is what he
said:
These people are planning to attack us again, and trying to
attack us sooner rather than later. Every delay that we have
in changing structures to make that less likely is a delay
that the American people can't tolerate.
I think he said it well. The stakes are too high. The matter before
us is too compelling. Even as we debate this legislation, we know that
terrorists are planning to attack our country. We know that we are at
an increased risk of terrorist attack. We see it all around this
Capitol at the intersections and with the increased security. How can
we not act? What more do we need to know?
If we do not act, I think we will have failed to respond to an urgent
threat, and we will have failed in our responsibility to do everything
we can to make our citizens safer.
Now is not the time to delay. Now is the time to move forward, and to
move forward with a bill that makes a difference, not a bill that
tinkers around the edges or makes a few cosmetic changes but, rather,
with a bill that makes fundamental reforms to respond to deficiencies,
inadequacies, and flaws that have been identified time and time again
over 50 years.
I thank the Chair.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. BYRD. Madam President, I have no intention of belaboring this
today. I understand we are going to vote next week, on Monday at 3. I
hope we will have an opportunity to debate this further on Monday.
The distinguished Senator, Ms. Collins, has said: What more do we
need? What other witnesses do we need to hear? Let me name some
witnesses who are represented by the distinguished Henry Kissinger when
he appeared before the Appropriations Committee. What an impressive
bipartisan array of national security experts pleading with Congress
not to rush these reforms. The list is a list of stars from both sides
of the aisle, as it were: David Boren, Bill Bradley, Frank Carlucci,
William Cohen, Robert Gates, John Hamre, Gary Hart, Sam Nunn, Warren
Rudman, George Shultz, as I have already mentioned, Henry Kissinger.
These men from both sides, both political parties, men who have held
preeminent positions in this Government, Republicans and Democrats,
appeared before the Appropriations Committee and said: Wait, don't act
in too great a hurry. They have decades of knowledge and experience,
and yet we stand ready to dismiss their concerns out of hand.
Let us not be rushed into this. I am not opposed to a national
intelligence director. I am not opposed to that. Elections are a
perfect time for a debate but a terrible time for decisionmaking. When
it comes to intelligence reform, Americans should not settle for
adjustments that are driven by the calendar instead of by common sense.
They deserve a thoughtful, comprehensive approach to these critical
issues.
I am not saying the distinguished members of that committee were not
thoughtful. They were. But if, as seems likely, Congress considers it
is essential to act now on certain structural reforms, we believe it
has an obligation--I do--to return to this issue early next year in the
109th Congress to address these issues more comprehensively. It would
seem to me that--let me say again--such a list, a list of stars, as
former members of the Government are concerned: David Boren, Bill
Bradley, Frank Carlucci, William Cohen--so you see, we have former
Secretaries of Defense here--Roberts Gates, John Hamre, Gary Hart,
Henry Kissinger, Sam Nunn, Warren Rudman, and George Shultz. These
luminaries are asking for more time. These witnesses testified before
the Appropriations Committee, and all of them said: Go slow; go slow.
Let me tell you who these people are.
Dr. John Hamre is the CEO at the Center for Strategic and
International Studies. The others have services and titles that speak
for themselves. I will not go into these. But I am simply saying we
need to talk some more about this next week. I hope we will ponder
carefully. I am not opposed to a national intelligence director, but I
simply say we should have more time.
We saw, Madam President, the unwisdom of being in a hurry when it
came to the invasion of Iraq. Our Government invaded. It won a short
war, but it had not given proper thought to what would come after, had
not given proper thought, it had not planned properly and carefully for
a postwar Iraq. And now look at what is happening. Look at the terrible
cost, the terrible price this Government is paying--paying with the
blood of the sons and daughters of our country. Think of it.
Let's don't be in such a big hurry. Let's take more time.
Madam President, I shall have more to say at a later time. I thank
the Chair, and I yield the floor.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Madam President, I thank the Senator from West Virginia.
I note the distinguished chairman of the Senate Armed Services
Committee is now on the floor, and I would like him to proceed whenever
he wishes.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. Madam President, I thank the managers of the bill. Before
I commence, I wonder if I might comment on the presentation of the
distinguished Senator from West Virginia, which I was privileged, as
many others were, to listen to very carefully. It was prepared in his
usual very thorough style, magnificently delivered. I am going to take
a close look at it. I thank the Senator for his contribution to this
effort.
Mr. BYRD. Madam President, will the distinguished Senator yield?
Mr. WARNER. Yes.
Mr. BYRD. Plato thanked the gods for having been born a man. He
thanked the gods for having been born
[[Page S10208]]
a Greek. He thanked the gods for having let him live in the same age as
Sophocles. And so I thank the benign hand of destiny for allowing me to
live at a time and to serve at a time when the great Appropriations
Committee of the Senate was chaired by the very distinguished Senator
from the great State that is the mother of Presidents, the State of
Virginia, a state from which comes the first President of this country,
the first Commander in Chief of the Nation, George Washington.
I have always admired Senator Warner. He is a gentleman, first of
all, and that goes a long way in this body. I thank him for his
comments. I thank him for his cosponsorship of this amendment, and I
look forward to what he has to say.
Right now, I should go to the Hart Building, where a woman who has
been my wife for 67 years, 4 months, and 2 days, is waiting to see me.
We are going to have lunch together, thank the Good Lord. So if all
Senators will allow me to leave the Chamber now, I shall go.
Mr. WARNER. Madam President, not until I make the following
observation: First, I thank the Senator for his comments. They are
undeserved but I appreciate them. I remember how many times on this
floor the Senator has recounted the importance of his wife's role in
his career, but the one I always remember--I have only been here a mere
26 years as compared to my senior colleague--was during my first couple
of years, and we were going well into the night. The Senator paused to
say how he used to go to night law school, and although he was a Member
of Congress and burdened with the duties, she would come with a little
lunch bag with a carton of milk and a sandwich to tide him over until
he left the Chamber, whether it was the House or the Senate, and go to
night law school to get his degree. I always remembered that.
Give her my warmest regards.
Mr. BYRD. If the Senator will yield, I thank him for his magnificent
encomium to my better half, a woman who has guided me and who has
served her country and her State so well. I thank the Senator for what
he has just said.
Amendment No. 3877
Mr. WARNER. Madam President, I thank the distinguished managers of
this bill. I rise now for the purpose of sending an amendment to the
desk and ask for its immediate consideration. I note that Senator
Stevens and Senator Inouye are cosponsors of the amendment.
The PRESIDING OFFICER. Without objection, the pending amendment is
laid aside.
The clerk will report.
The legislative clerk read as follows:
The Senator from Virginia [Mr. Warner], for himself, Mr.
Stevens and Mr. Inouye, proposes an amendment numbered 3877.
Mr. WARNER. Madam President, I ask unanimous consent that the reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To modify the requirements for the concurrence of the
National Intelligence Director in certain appointments)
On page 40, strike line 18 and all that follows through
page 41, line 4, and insert the following:
(b) Concurrence of NID in Certain Appointments Recommended
by Secretary of Defense.--(1) In the event of a vacancy in a
position referred to in paragraph (2), the Secretary of
Defense shall obtain the concurrence of the National
Intelligence Director before recommending to the President an
individual for nomination to fill such vacancy. If the
Director does not concur in the recommendation, the Secretary
may make the recommendation to the President without the
concurrence of the Director, but shall include in the
recommendation a statement that the Director does not concur
in the recommendation.
On page 41, line 12, strike ``Concurrence of'' and insert
``Consultation With''.
On page 41, beginning on line 15, strike ``obtain the
concurrence of'' and insert ``consult with''.
Mr. WARNER. Madam President, this amendment is for the purpose of
bringing into realignment what I believe is the proper balance of the
authorities of the new NID together with the respective Cabinet
officers, each of whom has some portion of intelligence
responsibilities remaining, as well as the Director of the FBI.
I will read the amendment briefly so that colleagues can follow
exactly what I am trying to do. The amendment says:
Concurrence of NID in certain appointments recommended by
Secretary of Defense. (1) In the event of a vacancy and a
position referred to in paragraph (2), the Secretary of
Defense shall obtain the concurrence of the National
Intelligence Director before recommending to the President an
individual for nomination to fill such vacancy. If the
Director does not concur in the recommendation, the Secretary
may make the recommendation to the President without the
concurrence of the Director, but shall include in the
recommendation a statement that the Director does not concur
in the recommendation.
It is just to bring into balance the fact that according to my
research, each of the other departments and agencies that have an
intelligence role get to recommend, with the concurrence of the Cabinet
officer or the head of the FBI. This is the one instance with regard to
these combat agencies where it should be brought in alignment with the
other methodology and procedures adopted for these important personnel
selections.
I draw the attention of the managers to section 117(b) of the bill
before us. It gives the national intelligence director responsibility
and authority to recommend appointments for several agencies that
hopefully will continue to be retained within the Department of
Defense: The National Security Agency, the National Reconnaissance
Office, the National Geospatial-Intelligence Agency.
I say hopefully because we have thus far withstood the very
significant amendment by the distinguished colleague from Pennsylvania,
coauthored by the distinguished colleague from Kansas, Mr. Roberts, and
others. The Senate addressed that and by an overwhelming majority
literally rejected the taking of these three combat agencies and
putting them under the direct jurisdiction of the NID.
Now, that is a concept that was hard fought, decided, and as a
consequence, hopefully it will remain as it is in the managers' bill.
The purpose of the amendment was to dislodge the managers' section
with regard to that. That was rejected by the Senate very resoundingly.
I believe, therefore, it is appropriate at this time to bring into
alignment with the other departments and agencies the authority for the
Secretary of Defense over these three entities which remain in his
department to make the recommendation to the President with the
concurrence of the NID, and in those instances where there is
nonconcurrence the President then would have the benefit of that
diversity of viewpoints. That is the purpose of this amendment.
We must remind ourselves that these are combat support agencies in
the Department of Defense. Under the bill, as of this moment, the
agencies remain under the authority of the Secretary of Defense.
Then the interesting aspect of this, which is important to my
amendment is that in the case of the NSA, this is normally a military
promotion from two stars to three stars to take on this important
position of the Director of NSA, and that Director of NSA also serves
in the position of Deputy Commander U.S. Strategic Command for
Information, Operations, Planning and Integration, a very critical
warfighting post. Consequently, these are matters that the Secretary of
Defense, who is accountable to the President and who has direct line
authority from the President to the SECDEF to the combat commanders,
that are important to maintain.
In the case of the NRO, this is a civilian appointment, to direct the
activities of the National Reconnaissance Office but is an appointment
as the Under Secretary of the Air Force. He is dual hatted, again, an
individual who serves not only in the important post of the
intelligence NRO but as an Under Secretary of the Air Force in the
Department of Defense. It is imperative that the Secretary of Defense
have the authority to make the recommendation together with the
concurrence of the NID.
In the case of the NGA, this can be a military appointment similar to
the NSA. One primary function of the NGA is to meet the mapping needs
of our military forces. I repeat, the military forces are highly
dependent upon this agency for the tactical maps that are needed
wherever they are in the world today facing the challenges and the
threats to our country.
[[Page S10209]]
These three appointments, I say most respectfully to the managers, I
feel ever so strongly should be initiated by the Secretary of Defense
with a recommendation, and then the statute, if my amendment is
adopted, will give the concurrence of the NID as an essential part of
the process.
Current law provides for the Secretary of Defense to recommend
appointment of these individuals with the concurrence of the DCI. We
have clear evidence for many years this system has worked and worked
well. There are examples where the DCI nonconcurred and the Secretary
revised the nomination in a manner consistent with gaining the
concurrence of the Director of the CIA.
The President has said he does not want anything we do in the area of
intelligence reform to blur the lines of authority, responsibility, and
accountability between him and the heads of the departments. I feel my
amendment will meet that criterion as set forth by the President. I
strongly urge my colleagues to examine the current provision, examine
the practice with respect to other departments and agencies in the
Government, and hopefully I will gain the support of the managers as
well as of my colleagues and that this amendment will be adopted.
I yield the floor.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Madam President, for the national intelligence director
to be truly accountable for the intelligence community, the director
must have the authority to have a real say in the selection of the
heads of the principal agencies of the intelligence community. The 9/11
Commission said that the ability to hire the senior managers is one of
the key authorities, critical to the success of the national
intelligence director. It is critical to the success of any leader, but
particularly it is important for the head of the intelligence
community. The 9/11 Commission cited the DCI's current lack of this
power as one of the key flaws in the DCI's authorities.
Under the Collins-Lieberman bill, the NID will recommend to the
President nominees to be the directors of the National Security Agency,
the National Reconnaissance Office, and the National Geospatial-
Intelligence Agency--the agencies known better as NSA, NGA, and NRO.
The NID is required to obtain the concurrence of the Secretary of
Defense before recommending the nominees to the President, and if the
Secretary of Defense does not agree with the recommendations of the
NID, the director must make that fact known to the President.
The distinguished chairman of the Armed Services Committee and the
managers of this bill each agree that these three critical agencies
should remain within the Department of Defense because of the dual role
these agencies play. For that reason, we joined forces to oppose the
amendment offered by the Senator from Pennsylvania that would have
severed the link between these agencies and the Secretary of Defense,
the reporting link.
In our bill, I believe we have taken the right approach. We have left
these three agencies within the Department of Defense, but we have made
it clear that there is an important reporting responsibility to the
national intelligence director and that the national intelligence
director will choose the individuals to lead these agencies with the
concurrence of the Secretary of Defense. It is actually the President's
nomination, but the recommendations would go from the NID with the
concurrence of the Secretary of Defense.
Why did we do that? We struck that balance not only because it was
recommended by the 9/11 Commission, and strongly recommended, but
because we recognize that these three agencies do not just serve the
Department of Defense; they are national intelligence assets. They
provide vital intelligence information throughout the intelligence
community. In fact, when Senator Lieberman and I met with the head of
the NSA, he told us he was on the phone far more often with the
Director of the CIA than he is with the Secretary of Defense.
These agencies provide critical information to the CIA, to the
Secretary of State, to the Secretary of Energy, to the Secretary of the
Treasury--to all those 15 agencies across our Government that vitally
need intelligence information. That is why we have the heads of these
agencies recommended by the national intelligence director with the
concurrence of the Secretary of Defense.
I point out that if we were to adopt the amendment offered by the
Senator from Virginia, we are essentially making no change in current
law. Under current law, the Secretary of Defense recommends the
appointment of these individuals to the President, and it is the
Director of Central Intelligence who concurs in the choice. So
essentially the Senator from Virginia is simply restating current law.
Current law is not adequate, and we know that that higher authority is
a key authority. If we are going to hold the national intelligence
director accountable for the intelligence community, we have to give
him the authorities he needs to do his job.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. LIEBERMAN. Madam President, I thank my friend from Virginia, the
chairman of the Senate Armed Services Committee whom I so respect and
for whom I have such a feeling of personal affection. I probably should
not say this for the record, Senator Warner, but my wife probably
wouldn't be happy to hear that I was opposing you. She has all too much
regard for your judgment and opinions. But nonetheless, I go forward.
Let me put this amendment in context. In response to the 9/11
Commission Report, Senator Frist and Senator Daschle sent it to our
Governmental Affairs Committee to consider and then recommend, on the
basis of that report, action to the Senate--which we have done. Senator
Collins and I and the members of the committee essentially built a
structure, a national intelligence director, a leader for our
intelligence community where there is none now--what I called a
quarterback for our intelligence team--where there is no quarterback, a
general for our intelligence service.
There have been two amendments put forward, in now this fifth day of
debate on the bill, that went at the architecture of the structure we
have recommended. One was by Senator Specter, which would have
dramatically altered, gone well beyond, what we had. Senator Warner
knows, because he was good enough to come and speak against the
amendment; it would have had the new NID in line control of all of
these intelligence agencies, including those that are housed and will
continue to be housed in the Defense Department. That was
overwhelmingly rejected by the Senate.
Yesterday, there was a different kind of assault on the structure we
are proposing from our committee in the amendment offered by the
Senator from South Carolina which I believe and represent would have
created in name a national intelligence coordinator but given that
person no authority, no power. It would have been the status quo
because it would have looked as if we had done something, but we would
not have done anything.
That amendment was overwhelmingly defeated.
I am grateful for both of those votes.
The amendment which the Senator from Virginia proposes, as in some
sense the amendment the Senator from West Virginia proposed earlier
today, does not knock off the structure we have proposed but alters it
in ways that I fear--certainly cumulatively--would weaken the structure
and not allow the national intelligence director to play the role the
9/11 Commission and our committee wants it to play. Is it a big
difference? No. But one element of strengthening this position of
national intelligence director is to make the influence of the director
over our national intelligence agencies--the National Security Agency,
which deals with signal intelligence and communications that are heard
in the interest of our national security, the National Reconnaissance
Organization, which puts satellites up in the air, and the National
Geospatial Agency, which has all of these remarkable capacities
technologically to see ground imagery and help our military and other
intelligence services to do what they have to do to protect us.
Here is the point: Those are national assets. Of course, they are
used every
[[Page S10210]]
day by the military, by the Department of Defense. The DOD is a very
important customer, maybe the most active customer, but not the only
customer of these assets--of signal intelligence, image intelligence,
and human intelligence.
The CIA, as Senator Collins indicated, depends on these satellites
and the other systems for important intelligence. So does the State
Department. So does now the Department of Homeland Security, even the
FBI.
We are trying to say that these national assets ought to report to
the national intelligence director, and part of that is to give the
director the opportunity to start the process for nominating the heads
of these agencies. That is a change. Now that is done. As Senator
Collins indicated, with the Secretary of Defense, we want to make a
slight change. The Secretary of Defense has the right to concur or
oppose. In most cases this will be worked out between the national
intelligence director and the Secretary of Defense. Lord knows, they
and their deputies are working out 100 decisions every day right now.
But if it is not worked out, the dissent will go to the President, and
ultimately the President will decide.
It is a only a difference. The Secretary of Defense will begin the
process of who is going to head the national agency or the NID.
Ultimately, the President will decide. Why is that different under our
bill for these three agencies as opposed to the head of a
counterterrorism division in the FBI, or that information analysis,
intelligence, and for infrastructure protection division of Homeland
Security? Because these three are uniquely national assets. The NSA,
NRO, and NGA serve all of the community and they ought to be under the
director of the community, and he or she ought to have the first say in
who fills that position.
That is why this is an important part of our structure, and why I
respectfully oppose the amendment, because it would weaken the
structure by pulling out a couple of the boards.
Mr. WARNER. Madam President, will the Senator yield?
Mr. LIEBERMAN. I certainly will.
Mr. WARNER. I want to pick up on the last point. I find there is no
effort to change the authority of the Secretary of State in the
selection of his people to do the work. But I feel strongly that the
work done by the Department of State serves the whole community. It
isn't exclusive to the Secretary of State.
I bring to the Senator's attention the fact that the Department of
State had some thoughts at variance with the Central Intelligence
Agency as related to the aspect of the critical issues relating to the
weapons of mass destruction. Does the Senator recall that?
Mr. LIEBERMAN. Through the Chair, the Senator from Virginia is
absolutely right. I do recall it.
Mr. WARNER. Therefore, they serve the whole community. And perhaps if
a caveat on some of that had been brought to the forefront in a more
strengthened fashion, who knows what the outcome might have been.
I do not believe the Senator can tell me that the person in the FBI
who has responsibility isn't serving the entire community. I think the
Senator ought to go back and reexamine that representation. I do not
find it strengthened by making an exception for the Secretary of
Defense as relates to these three individuals.
For example, I draw on my experience as Secretary of the Navy. There
was quite a competition when vacancies of the NRO and NSA came up. The
service Secretaries were invited to make nominations to the Secretary
of Defense for the offices. In the capacity of a service Secretary, you
get to know these individuals as they work their way up through the
ranks and are promoted. You have a special knowledge of their
capabilities and their strengths. You can advocate that to the
Secretary of Defense, who then in turn makes the decision with regard
to who should be selected to head the NRO based on the cumulative
advice of the several service Secretaries. Those positions are often
rotated between the Air Force, the Army, and the Navy, and they are
extremely important assignments.
With all due respect to the NID, he has so much to be done that he
cannot possibly have the knowledge about the achievements of all of the
various individuals to make a recommendation. He can, of course, come
in after study and concur or not. But you are holding the Secretary of
Defense saying you have all the responsibility with regard to this
agency. In many respects personnelwise, you are reducing the Secretary
of Defense to a payroll clerk when you do not allow him to make the
selections of the people he thinks are best qualified. In the case of
the NRO, he serves as an under secretary of the Air Force with duties
related to the NRO and duties related to the entire space program in
the Department of the Air Force. The Secretary of Defense should make
the appointment of the people who serve his Department.
I cannot accept the Senator's distinction about how you leave the
State of Department alone, the FBI alone, the Energy Department alone,
let those Secretaries make their recommendation and decisions with
regard to personnel, and then in almost a demeaning way say to the
Secretary of Defense, Oh, no, when it comes to your people, you have
the right to concur or not.
Mr. LIEBERMAN. Mr. President, if I may briefly respond to the Senator
from Virginia, the case cited of the INR, the intelligence division at
the State Department, is an interesting one. They came to a different
opinion than some other constituent agencies of the American
intelligence community with regard to, for instance, prewar WMD in
Iraq. But that was a matter of analysis primarily, not collection. They
looked at the data. Incidentally, some of the data they looked at were
data they got from these three agencies. These are the three largest
collection agencies and they are unique in that they serve the whole
community.
There is certainly no intention to diminish the Secretary of Defense.
The Secretary of Defense has a very powerful position and Senator
Collins and I want to have the Secretary remain that powerful. We had
very interesting testimony before our committee by a witness who said--
he had been in the Department of Defense and stepped out to work with a
think tank where he watches all of this--over the years when there were
conflicts or disagreements between the Secretary of Defense and the
Director of Central Intelligence, the Secretary of Defense always wins
because the Secretary of Defense has so much muscle. And that is the
reality.
We are not trying to undercut the authority of the Secretary of
Defense, and we are certainly not trying to alter the chain of command,
but we are trying to give a little more authority to the national
intelligence director so that director can really be in charge. One
small piece of that is saying, Mr. Intelligence Director, you can, in
consultation with the Secretary of Defense, make the suggestion for who
ought to head these three agencies which, unlike any other intelligence
agency within our Government, serve the entire community.
The Secretary of Defense, as I said before, is an important customer
of what these three agencies produce--``user'' may be a better term
than customer.
It was of great interest when General Hayden, head of the NSA, said
he spends more time on the phone with the Director of the CIA than with
the Secretary of Defense. We want to reflect that in this small
movement of authority.
Mr. WARNER. Mr. President, it is obvious the managers at the moment
are somewhat entrenched in their views. I hope we will have an
opportunity to appeal to the broader and hopefully more open minds of
the collective Senate as a whole.
Could the managers advise those Members who have deferred other
plans, with the importance of being here today to advocate amendments,
what will be the procedure when this will be laid aside? There will be
a record when we return Monday. I presume it would be scheduled in some
order, at the discretion of the managers, together with the leaders of
the Senate, as to the vote.
Do I get 2 minutes, 3 minutes, 4 minutes at the time the amendment is
brought up? I would like to weigh in a little bit now given that I have
not thus far persuaded my two distinguished colleagues, both members of
[[Page S10211]]
the Armed Services Committee, who are interfering, in my judgment, with
the direct chain of command between the President and his combatant
commanders and principal civilian appointees.
Ms. COLLINS. Mr. President, to respond to the question raised by the
Senator from Virginia, it is the leader's intention to convene perhaps
at 10 or 11 o'clock on Monday morning, allow for some further debate,
and then stack votes beginning at 3 p.m. There will be 2 minutes
equally divided before each vote, but knowing of the Senator's desire
to have further debate on Monday, we are going to convene early enough
on Monday to allow that to occur. We expect a great many stacked votes
to begin at approximately 3 o'clock Monday. Thus, we are not going to
have time for extensive debate between those votes.
Mr. WARNER. I thank my distinguished colleague. I shall certainly be
here. As a matter of fact, I will preside for a period of time. Maybe
when I get in the chair and have the gavel, I can do something about
this amendment.
In any event, I am appreciative of the courtesies that have been
extended to Members of the Senate deliberating on this bill. This is an
important matter.
Hopefully, in the interim, I can persuade not only the Senate but the
White House to indicate its position on this amendment.
I thank the Chair. I thank my distinguished colleagues. I will be
available for further amendments as the managers decide to have them
scheduled during the course of the day.
This amendment will now be laid aside?
The PRESIDING OFFICER. Yes.
Ms. COLLINS. I ask that the amendment be laid aside. The Senator from
Vermont is next. I wonder if the Senator could withhold for a couple of
moments to allow consultation among the three of us before he sends up
his amendment.
Mr. LEAHY. Of course. The distinguished chairman and ranking Member
have always been very courteous. I know, having managed a lot of bills,
how it is. It is a reasonable request.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Chambliss). The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. LEAHY. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 3945
Mr. LEAHY. Mr. President, I ask it be in order for me to send to the
desk an amendment on behalf of myself and Mr. Grassley.
The PRESIDING OFFICER. Without objection, the pending amendment is
laid aside.
Mr. LEAHY. I understand there may be a question regarding my
amendment. While this is being worked on by counsel, let me proceed to
discuss it and we can go back to the amendment if there is no
objection.
Mr. President, three years after thousands of Americans were killed
in the worst terrorist attack on U.S. soil, there have been some
troubling doubts about the effectiveness of a major investigative tool
in our antiterrorism arsenal.
On Monday, the Office of Inspector General of the Department of
Justice released an unclassified version of its audit of the FBI's
Foreign Language Program and the Translation of Counterterrorism and
Counterintelligence Foreign Language Material. The results were
unsettling. They deserve our immediate attention and action.
The report shows that despite concerns expressed for years by those
in Congress and by former FBI contractors, among others, and despite an
influx of tens of millions of dollars Congress has appropriated in a
bipartisan effort to hire new linguists, the FBI foreign language
translation unit is saddled with problems across the board, including
growing backlogs, systemic difficulties, security problems, too few
qualified staff, and an astounding lack of organization. It is almost
as though the Department of Justice does not take this question of
translation seriously.
The question the Department of Justice must be asked is: What is the
use of taping thousands of hours of conversations of intelligence
targets in foreign languages if, after we have taped it all, we cannot
translate it promptly, securely, accurately, and efficiently? The
translation mess at the Department of Justice is a chronic problem that
has obvious and severe implications for our national security. We all
want America to be secure, Republicans and Democrats alike. But the
administration has shirked its responsibility to resolve these
problems. It has dodged its own accountability to the public and to
Congress for this enormous failure. I believe the administration owes
Congress and the American public an explanation as to why it has
repeatedly failed to take the necessary steps to fix these serious
intelligence failings. We need to know, once and for all--and sooner
rather than later--what steps will be taken to get this job done.
Now, to expedite this process, I will offer the Translator Reports
Act of 2004. I am proud to be joined in this effort by Senator
Grassley, my friend from Iowa. He has been ever-vigilant on FBI
oversight issues, whether it has been a Democratic administration or a
Republican administration. Our act clarifies and expands upon an
important reporting requirement currently in law that has yet to be
implemented by the Department of Justice.
The Attorney General is required by law--by law--to report to the
Senate and House Judiciary Committees about the number of translators
employed by the FBI; the legal and practical impediments to using
translators employed by other Federal, State, or local agencies, on a
full, part-time, or shared basis; and the needs of the FBI for specific
translation services in certain languages and recommendations for
meeting those needs. We saw this as such a high priority that we
included this requirement in law. The President signed it into law.
You would think if anybody is going to follow the law, it would be
the Attorney General. To date, he has not. He has not made the report
required by this law. Now, maybe he needs another deadline. We thought
it was pretty clear already. The President thought it was pretty clear.
Republicans and Democrats thought it was pretty clear. But this
amendment provides an ironclad deadline.
I believe we have to prod the Department of Justice to get this
information on a timely basis. It is somewhat like pulling teeth. This
amendment is the extraction tool for the teeth of the foreign
translation program. It fills the gap in current law by legally
requiring the Attorney General to report ``not later than 30 days after
the date of enactment'' and ``annually thereafter.''
The bill also expands that reporting requirement in several critical
ways and in direct response to the Office of Inspector General's Audit.
This is in keeping with the 9/11 Commission's directive that Congress
exercise greater oversight over the counterintelligence and
counterterrorism needs of the executive branch. In its report, the 9/11
Commission noted that, ``Even as the FBI has increased its language
services cadre, the demand for translation services has also greatly
increased. Thus, the FBI must not only continue to bring on board more
linguists, it must also continue to take advantage of technology and
best practices to prioritize its workflow, enhance its capabilities and
ensure compliance with its quality control program.''
Well, I could not agree more.
The FBI in the past has drawn a distinction between contract
linguists and full-time employees when discussing hiring issues. But
for the purpose of getting the job done, this is a distinction without
a difference. We in Congress want to know the status of hiring overall
because it is the entire picture that we are concerned with. The
amendment makes clear that the Department of Justice must report on
linguists employed by and contracted for by the FBI.
Our amendment adds further reporting requirements that will be
crucial to understanding whether or not the FBI is capable of fixing,
and has fixed, the problems outlined by the Inspector General.
If enacted into law, the Attorney General will have to provide
Congress with current information regarding: (1) the status of any
automated statistical reporting system so that we can ensure
[[Page S10212]]
the FBI is monitoring workflow properly; (2) the storage capabilities
of the digital collection system or systems utilized so that important
data is not lost for technological reasons; (3) a description of the
FBI's establishment and compliance with audio retention policies that
satisfy the investigative and intelligence goals of the FBI; (4) a
description of the implementation of quality control procedures and
mechanisms for monitoring compliance with quality control procedures;
and (5) the current counterterrorism and counterintelligence audio
backlog and recommendations for alleviating any such backlog.
These reporting requirements are in addition to what is currently
required: hiring numbers and recommendations regarding the FBI's future
needs and the viability of using translators from other agencies and
sources. This more detailed information will give Congress a better
view and ultimately greater insight into how the FBI is handling this
critical investigative tool. With FISA wiretaps at an annual figure of
more than 1,700, the FBI has a lot of catching up to do. And so does
Congress in its oversight of this translation program. With this
amendment, the information we will need to most effectively employ this
important investigative tool will be at our fingertips.
We know our intelligence services have the ability to pick up
conversations throughout the world. But you have to translate what you
pick up. On September 10, according to press reports, the
Administration picked up a very clear warning that we were going to be
hit on September 11. They did not translate the warning until sometime
after September 11. This is like being warned that a bomb is going off
in 5 minutes, and responding that we will translate and look at that
warning in 5 months.
For my security and the security of all of us, I want our law
enforcement and intelligence services to know immediately. As a former
prosecutor, I know that if you are using a wiretap or an intercept, it
is valuable if you have the information immediately, especially if they
are talking about a terrible act or a crime that is going to take place
very soon. It does you very little good to finally look at it long
after the fact. The only reason we do these intercepts, the only reason
we do these wiretaps, the only reason we do this electronic information
gathering is so we will know where we are.
Mr. President, I understand my amendment is at the desk and I request
it be reported.
The PRESIDING OFFICER. The clerk will report the amendment.
The assistant legislative clerk read as follows:
The Senator from Vermont [Mr. Leahy], for himself and Mr.
Grassley, proposes an amendment numbered 3945.
Mr. LEAHY. Mr. President, I ask unanimous consent that reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To require Congressional oversight of translators employed
and contracted for by the Federal Bureau of Investigation)
At the appropriate place insert the following:
SECTION 1. CONGRESSIONAL OVERSIGHT OF FBI USE OF TRANSLATORS.
Not later than 30 days after the date of enactment of this
Act, and annually thereafter, the Attorney General of the
United States shall submit a report to the Committee on the
Judiciary of the Senate and the Committee on the Judiciary of
the House of Representatives, that contains, with respect to
each preceding 12-month period--
(1) the number of translators employed, or contracted for,
by the Federal Bureau of Investigation or other components of
the Department of Justice;
(2) any legal or practical impediments to using translators
employed by the Federal, State, or local agencies on a full-
time, part-time, or shared basis;
(3) the needs of the Federal Bureau of Investigation for
the specific translation services in certain languages, and
recommendations for meeting those needs;
(4) the status of any automated statistical reporting
system, including implementation and future viability;
(5) the storage capabilities of the digital collection
system or systems utilized;
(6) a description of the establishment and compliance with
audio retention policies that satisfy the investigative and
intelligence goals of the Federal Bureau of Investigation;
and
(7) a description of the implementation of quality control
procedures and mechanisms for monitoring compliance with
quality control procedures.
Mr. LEAHY. Mr. President, I know the distinguished chairman of the
committee and the distinguished ranking member of the committee want to
look at this amendment. Because I am suppose to be at several places, I
am not shackled to my desk on the floor as they are. I did want to get
the amendment offered. I thank them for their courtesy in giving me
time to do so. I urge the Senate to support this important oversight
and reporting amendment.
I yield the floor.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Mr. President, I appreciate the Senator from Vermont
bringing his amendment forward. We are going to discuss it further with
him.
Mr. President, I ask unanimous consent that the amendment be laid
aside temporarily and that the Senator from Rhode Island be recognized
to offer an amendment.
The PRESIDING OFFICER. Without objection, it is so ordered. The
pending amendment is laid aside.
The Senator from Rhode Island.
Amendment No. 3908
(Purpose: To authorize the Secretary of Homeland Security to award
grants to public transportation agencies to improve security, and for
other purposes)
Mr. REED. Mr. President, I call up amendment No. 3908.
The PRESIDING OFFICER. The clerk will report the amendment.
The assistant legislative clerk read as follows:
The Senator from Rhode Island [Mr. Reed], for himself, Mr.
Sarbanes, Mr. Schumer, Mrs. Boxer, and Mr. Corzine, proposes
an amendment numbered 3908.
Mr. REED. Mr. President, I ask unanimous consent that reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The amendment is printed in the Record of Thursday, September 30,
2004, under ``Text of Amendments.'')
Mr. REED. Mr. President, I offer this amendment along with Senators
Sarbanes, Schumer, Boxer, and Corzine.
This amendment is, in essence, the text of S. 2453, which the Banking
Committee reported out unanimously on May 6 and placed on the calendar
on May 20.
Since that time, we have sought to pass the bill along with the
Commerce Committee's similar rail security bill by unanimous consent,
but an objection has, to date, blocked the Senate from passing this
bipartisan transit security legislation. Therefore, I rise with my
colleagues today to continue this effort to improve the security and
safety of our transit systems in the United States which on a daily
basis transport 14 million Americans.
Our amendment is straightforward and meets the 9/11 Commission's
recommendation on page 391 for improved transportation security, which
states in part:
The U.S. government should identify and evaluate the
transportation assets that need to be protected, set risk-
based priorities for defending them, select the most
practical and cost-effective ways of doing so, and then
develop a plan, budget, and funding to implement the effort.
The plan should assign roles and missions to the relevant
authorities (federal, state, regional, and local) and to
private stakeholders. In measuring effectiveness, perfection
is unattainable. But terrorists should perceive that
potential targets are defended. They may be deterred by a
significant chance of failure.
In essence, the 9/11 Commission has called for three steps: first,
clear responsibility; second, risk-based policies; and third, resources
to meet these threats. Our amendment corresponds to these
recommendations by the Commission.
First, our amendment would require the Department of Homeland
Security to clearly accept responsibility for transit security by
signing a memorandum of understanding with the Federal Transit
Administration. Unfortunately, this is something that the Department of
Homeland Security has failed to do, even after numerous Senate
inquiries and the passage of a Senate amendment requiring it to do so.
Second, our amendment embodies the kind of risk-based priorities that
the Commission recommended by requiring the Department of Homeland
Security to review the security assessments conducted by the Federal
Transit Administration. DHS would then use these risk-based assessments
as the basis for
[[Page S10213]]
allocating any funds. The Department would also have to annually update
these assessments.
Third, our amendment would authorize real resources over 3 years that
are still a fraction of our investment in aviation security for a wide
variety of known capital and operating security needs, including
surveillance technologies, tunnel protection, chemical, biological,
radiological, and explosive detection systems, perimeter protection,
training, and other security improvements approved by the Department.
In sum, our amendment is not overly prescriptive and relies on the
wisdom of the Nation's intelligence systems and the Department of
Homeland Security to identify the threats, develop solid plans, and
invest in those initiatives which will do the most to make our transit
systems more secure.
Fourteen million Americans each day rely on transit systems. We only
have to recall the horrible and tragic incident in Spain a few months
ago to understand that these individuals are the potential targets for
terrorist acts. It is incumbent upon us to take these steps today to
protect the transit systems for the people of America as we go forward.
I yield the floor.
The PRESIDING OFFICER. The Senator from Maryland.
Mr. SARBANES. Mr. President, I commend my colleague, the very able
Senator from Rhode Island, Mr. Reed, for offering this amendment. I am
pleased to join with him as a cosponsor.
Senator Reed has played a leading role in the Congress on the issue
of transit security. In fact, in the last Congress he held a series of
hearings on transit issues, and a good deal of the focus of those
hearings was on the transit security challenges we face.
This is a vitally important amendment needed to better protect the
American people. I observe to my colleagues that throughout the world,
public transportation systems have been a target of terrorist attacks.
A terrorist attack against a passenger train in Madrid, attacks against
transit systems in both Moscow and South Korea demonstrate that transit
and rail systems are a target of terrorists worldwide.
Despite the significant threat which obviously exists to transit and
rail systems, security funding has been grossly inadequate. As a
result, our Nation's transit and rail systems have been unable to
implement necessary security improvements, in many instances even those
that have been identified as necessary by the Department of Homeland
Security.
To take one example, Washington Metro's greatest security need at the
moment is a backup operations control center. This need was identified
by the Federal Transit Administration in its initial security
assessment, and then identified again by the Department of Homeland
Security in its subsequent security assessment. Regrettably, this
critical need remains unaddressed because of a lack of funding.
Last March, I, along with Senators Mikulski, Warner, and Allen, wrote
to Secretary Ridge urging funding for this and other critical needs
such as chemical detection and decontamination systems, but the money
is not there and the needs remain.
In May of this year, the Banking Committee undertook to address these
issues on a national basis. My colleague from Rhode Island played an
instrumental role in considering this issue in the committee. The
committee, on a bipartisan basis, with a unanimous vote, passed the
Public Transportation Terrorism Prevention Act. Regrettably, we have
not yet been able to move that legislation forward on the Senate floor.
This amendment tracks many of the provisions of that legislation. It
addresses the need for increased transit security by providing for
grants along the lines of the bill that was reported out of the
committee.
I note in that regard that Banking Committee Chairman Shelby took a
keen interest in this issue and we appreciate his recognition of the
need to increase transit security and his support for the legislation
that was brought from the committee.
I might note that the House Transportation and Infrastructure
Committee recently took action with respect to transit security that is
similar to what is proposed in this amendment.
In the last Congress, Senator Reed and I requested the GAO to conduct
a study of the security needs of transit systems. In its report the GAO
found that, in analyzing the needs of eight transit systems, that they
required $711 million for security purposes just for those eight
systems. There are 6,000 public transit agencies throughout our Nation.
The need is very great. The challenge is very real.
We know that transit and rail systems are serious potential targets
for terrorist attacks. We obviously know the vital role that these
systems play in our Nation's economic and security infrastructure. We
must address the vulnerabilities that have already been identified in
security assessments which have already been conducted.
The funding to do this is just not there. We need to harden tunnels,
to provide detection teams, to train frontline employees, to update
infrastructure so that a transit system can continue to function even
if attacked. The list of security needs goes on and on and on.
I strongly commend to my colleagues the amendment that my able
colleague from Rhode Island has put forward. I am pleased to join with
him as a cosponsor. I urge support of the amendment. This is a very
real need, with very important implications for our national security
and for the functioning of our economy. I urge my colleagues to support
the amendment. I thank the Senator from Rhode Island for his
leadership.
I yield the floor.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Mr. President, it is my understanding, based on the
tentative schedule that we worked out last night, that Senator Levin is
to be recognized next to offer amendments, followed by Senator Roberts,
followed by Senator Stevens, followed by Senator Kyl. I see the Senator
from North Dakota is here to make a comment. My concern is how that
fits in with the amendment schedule worked out last night.
Mr. CONRAD. I would be happy to yield to Senators for their
amendments.
Ms. COLLINS. I appreciate that.
Mr. President, the pending amendment raises several questions. It has
very worthy goals. We have previously adopted a McCain-Lieberman
amendment dealing with some of the same issues. We need to have a
discussion with the sponsors of the amendment, Senators Reed and
Sarbanes and others, to see how their amendment interacts with the
legislation previously adopted, the McCain-Lieberman amendment.
I ask unanimous consent that the pending amendment be set aside.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Connecticut.
Mr. LIEBERMAN. Mr. President, if I may speak on the amendment
briefly, I thank the Senators from Rhode Island and Maryland for coming
forward with the amendment. It certainly speaks directly to a critical
national homeland security need. I want to take a little time to look
at it and see how it fits into the overall picture with regard to the
bill. I know this was reported out unanimously from the relevant
committee. It has been held up perhaps only by one Senator as a result
of an objection.
I don't want to have the underlying bill, which is so urgently
needed, get caught in that kind of situation. But I would like to work
with the sponsors of the amendment and perhaps with whoever is
objecting to see if we can't find a way to put these together. This
speaks to a real national need. It is consistent with other amendments
that have been adopted on the underlying bill or were part of the bill
initially and, of course, consistent with vulnerabilities that the 9/11
Commission spoke to.
I thank the sponsors and I look forward to working with them to see
if we can work it out.
I yield the floor.
The PRESIDING OFFICER. The Senator from North Dakota is recognized.
Justifying the War in Iraq
Mr. CONRAD. Mr. President, in watching the Presidential debate last
night, again, I think President Bush confused who attacked the United
[[Page S10214]]
States on September 11. President Bush, last night, in justifying the
war with Iraq, said they attacked us. Senator Kerry was quick to point
out that Iraq did not attack us. It was al-Qaida, led by Osama bin
Laden, that attacked us. This basic fact is absolutely essential to
understanding what occurred and where we are headed.
I think it is helpful, perhaps, to review the record. Here is the
report of the 9/11 Commission:
The intelligence reports describe friendly contacts and
indicate some common themes in both side's hatred of the
United States [referring to Iraq and al-Qaida], but to date
we have seen no evidence that these or the earlier contacts
ever developed into a collaborative operational relationship.
Nor have we seen evidence indicating that Iraq cooperated
with al-Qaida in developing or carrying out any attacks
against the United States.
Mr. President, it is not just the 9/11 Commission that tells us these
basic relationships; it is also our own Intelligence Committee. Their
conclusions in their July 7 report included conclusion 96:
The Central Intelligence Agency's assessment that to date
there was no evidence providing Iraqi complicity or
assistance in an al-Qaida attack was reasonable and
objective. No additional information has emerged to suggest
otherwise.
Conclusion 93:
The Central Intelligence Agency reasonably assessed that
there were likely several instances of contacts between Iraq
and al-Qaida throughout the 1990s, but that these contacts
did not add up to an established, formal relationship.
Mr. President, one month after the dreadful September 11 attack, the
State Department had on their Web site a list of countries where al-
Qaida has operated. This is a month after the September 11 attack. If
you look down this list--Bahrain, Bangladesh, France, Germany, Iran,
and others--there is no mention of Iraq.
The Secretary of State has said as recently as September 13, just
last month, appearing on NBC's ``Meet the Press,'' that he had seen
nothing that makes a direct connection between Saddam Hussein and his
awful regime and what happened on 9/11.
The President himself has previously said, on September 18 of last
year, that he saw no evidence of Hussein being tied to 9/11. Yet over
and over, the Vice President and the President have left an impression
with the American people that somehow Iraq was behind the attacks of
September 11. It was not. Al-Qaida, led by Osama bin Laden, was behind
the attacks of September 11. Those are the folks we need to hold to
account. They are the ones we need to bring to justice. That is not for
a moment to say that Saddam Hussein didn't run a dreadful regime. He
did. I think the world is better off without Saddam Hussein in power.
The question is, What were the priorities of the United States in
responding to those horrific attacks on our country?
My belief at the time we were preparing to go to war with Iraq was
that it was a diversion from our attention in going after al-Qaida, led
by Osama bin Laden. My own strong belief at the time was that ought to
have been our top priority and focus.
I graduated from an American Air Force base in Tripoli, Libya, in
North Africa. I lived in the Arab world. I learned something about the
Arab world in living there. It is very clear to me that we have to be
very focused in going after those who attacked us. If we are going to
be successful against the terrorists, we have to go after the people
who attacked us. We have to go after those who are planning to attack
us again. We cannot go off and go after every bad regime in the world.
That will swamp our ability to respond.
There has been some suggestion that Saddam Hussein was going to arm
terrorists. Go back to what the intelligence told us, November 16,
2003:
The CIA's search for weapons of mass destruction in Iraq
has found no evidence that former President Saddam Hussein
tried to transfer chemical or biological technology or
weapons to terrorists, according to a military intelligence
expert.
Mr. President, what happened was that our focus on getting those who
attacked us was diverted by launching the attack on Iraq. This is from
USA Today, March 29, this year:
In 2002, troops from the 5th special forces group, who
specialize in the Middle East, were pulled out of the hunt
for Osama bin Laden in Afghanistan to prepare for their next
assignment: Iraq. Their replacements were troops with
expertise in Spanish cultures.
Mr. President, what sense does this make? We took people who were
experts in the culture of those who attacked us and we took them out of
the hunt for Osama bin Laden and shifted them over to Iraq in the hunt
for Saddam Hussein. And we replaced them with experts in Spanish
culture. No wonder, over a thousand days after the attacks of September
11, we still have not held to account Osama bin Laden, his top
assistant, and the rest of their criminal group.
This story says:
The CIA, meanwhile, was stretched badly in its capacity to
collect, translate, and analyze information coming from
Afghanistan. When the White House raised a new priority, it
took specialists away from the Afghanistan effort to ensure
Iraq was covered.
I believe history is going to prove that was a serious mistake.
Again, Iraq did not attack us; al-Qaida, led by Osama bin Laden,
attacked us. They are the ones we need to hunt down as our top
priority.
Last year, in The Philadelphia Inquirer, this story ran, saying:
Some senior officials concede that the Iraq war also
diverted resources from two problems that could prove to be
even more pressing than Iraq was: rooting out the remnants of
Osama bin Laden's al-Qaida terrorism network and confronting
Iran. A senior intelligence official, who spoke on condition
of anonymity, said the CIA reassigned to Iraq more than half
the operatives tracking al-Qaida fugitives in Afghanistan and
Pakistan. As a result, he said, U.S. forces were not able to
pursue bin Laden and other al-Qaida leaders as aggressively.
This is a case of misplaced priorities by this administration. Our
top priority should have been nailing Osama bin Laden and al-Qaida.
Instead, this President and this administration diverted resources from
that hunt and shifted them to Iraq. Again, as dreadful a regime as Iraq
had, they were not the ones who attacked us. Al-Qaida did.
This goes on to say:
Al-Qaida's continuing threat was shown when the Department
of Homeland Security raised its terrorism alert level
Tuesday, after bombings in Saudi Arabia and Morocco.
This is what the President said right after the attacks of September
11, on September 15:
There is no question about it, this act will not stand; we
will find those who did it. We will smoke them out of their
holes; we will get them running and we will bring them to
justice.
I agree, absolutely, with the President's statement. He had the
priority right at the time. Then something happened. I don't know why.
I have never been able to decipher why the President's focus shifted.
Here is what he said on March 13, 2002:
You know, I just don't spend that much time on him [Osama
bin Laden] . . . I don't know where he is . . . I truly am
not that concerned about him.
How can he not be that concerned about the man who was the architect
of these attacks on the United States? How can that be? How can our
President not be that concerned about Osama bin Laden, who is out there
plotting, even now, to launch even more attacks on the United States?
The former Secretary of the Navy in the Reagan administration, James
Webb, made these comments this year in a USAToday op-ed piece:
Bush arguably has committed the greatest strategic blunder
in modern memory. To put it bluntly, he attacked the wrong
target. . . . Our military is being forced to trade away its
maneuverability in the wider war against terrorism while
being placed on the defensive in a single country that never
will fully accept its presence.
That is the conclusion of the Secretary of the Navy in the Reagan
administration, that this President attacked the wrong target. Instead
of focusing on al-Qaida, he launched a preemptive attack on Iraq.
Mr. Webb, in that same opinion piece, said this:
There is no historical precedent for taking such action
when our country was not being directly threatened. The
reckless course that Bush and his advisers have set will
affect the economic and military energy of our Nation for
decades.
This is the man who ought to be our top priority. This is the man who
organized the September 11 attacks against the United States. This is
the man who is plotting even now to attack the United States again.
This is Osama bin Laden. It is not Saddam Hussein. We cannot get
confused about who the primary threat is to the United States of
America. The top threat, the top priority for our military and
intelligence
[[Page S10215]]
services has to be to bring Osama bin Laden and al-Qaida to justice.
They are the ones who attacked us. They are the ones plotting to attack
us again.
I thank the Chair and yield the floor.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. Mr. President, I certainly am happy to be here today and
that I was--I do not know if happy is the right word--able to hear the
Senator from North Dakota, who did such a good job. Not only is he
articulate in his views, but he always has facts and figures to back
them up.
We have come to know Senator Conrad as someone in the Senate who
knows the numbers better than anyone else. In addition to that, he
obviously is aware of other issues going on, such as his presentation
today, which is a presentation I heard developed previously. I want the
Senator to know how much I appreciate his very clear and concise
statement. I appreciate it.
Amendment No. 3849
(Purpose: To protect human health and the environment from the release
of hazardous substances by acts of terrorism)
Mr. REID. Mr. President, on behalf of Senator Corzine, I ask that the
pending amendment be set aside, and I call up the Corzine amendment No.
3849.
The PRESIDING OFFICER. The clerk will report the amendment.
The assistant legislative clerk read as follows:
The Senator from Nevada [Mr. Reid], for Mr. Corzine, for
himself and Mr. Lautenberg, proposes an amendment numbered
3849.
Mr. REID. Mr. President, I ask unanimous consent that the reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The amendment is printed in the Record of Thursday, September 30,
2004, under ``Text of Amendments.'')
Amendments Nos. 3782 and 3905
Mr. REID. Mr. President, on behalf of Senator Lautenberg, I call up
amendment Nos. 3782 and 3905 to be considered at this time.
The PRESIDING OFFICER. The clerk will report the amendments.
The assistant legislative clerk read as follows:
The Senator from Nevada [Mr. Reid], for Mr. Lautenberg,
proposes amendments numbered 3782 and 3905, en bloc.
Mr. REID. Mr. President, I ask unanimous consent that the reading of
the amendments be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment (No. 3782) is as follows:
(Purpose: To require that any Federal funds appropriated to the
Department of Homeland Security for grants or other assistance be
allocated based strictly on an assessment of risks and vulnerabilities)
At the appropriate place, insert the following:
SEC. __. ALLOCATION OF FEDERAL HOMELAND SECURITY ASSISTANCE.
Any Federal funds appropriated to the Department of
Homeland Security for grants or other assistance shall be
allocated based strictly on an assessment of risks and
vulnerabilities.
(The amendment (No. 3905) is printed in the Record of Thursday,
September 30, 2004, under ``Text of Amendments.'')
Amendment No. 3821
Mr. REID. Mr. President, I ask that the pending amendments be set
aside, and I call to the Senate's attention amendment No. 3821 offered
on behalf of Senator Harkin.
The PRESIDING OFFICER. The clerk will report the amendment.
The assistant legislative clerk read as follows:
The Senator from Nevada [Mr. Reid], for Mr. Harkin,
proposes an amendment numbered 3821.
Mr. REID. Mr. President, I ask unanimous consent that the reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To modify the functions of the Privacy and Civil Liberties
Oversight Board, and for other purposes)
On page 158, line 9, strike the period and insert ``,
including information regarding privacy and civil liberties
violations, which are made by departments, agencies, or
elements of the executive branch, of regulations, policies,
or guidelines concerning information sharing and information
collection; and''.
On page 158, between lines 9 and 10 insert the following:
(C) the minority views on any findings, conclusions, and
recommendations of the Board resulting from its advice and
oversight functions under subsection (d).
On page 160, line 6, insert ``and the National Intelligence
Director and committees of Congress described under
subsection (e)(1)(B)(i)(I),'' after ``concerned''.
Mr. REID. Mr. President, on behalf of Senator Harkin, I recognize his
amendment would do three things. It first requires the privacy and
civil liberties board established by this bill to include as part of
its findings any privacy or civil liberties violations made by the
intelligence community or other elements of the executive branch in its
semiannual reports to Congress.
Second, it allows minority conclusions or recommendations to be sent
to Congress.
Finally, the amendment would require the board to report an agency's
failure to cooperate with its requests for information or assistance to
the national intelligence director and appropriate committees of
Congress.
This amendment strengthens the credibility of the board and improves
the board's ability to get the information it needs in the conduct of
its duties.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Allard). The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. LIEBERMAN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LIEBERMAN. Mr. President, I do want to indicate that we have
several other Senators who told us they would be coming over to the
floor today to offer amendments: Senator Levin, Senator Roberts,
Senator Kyl, and Senator Stevens. I urge them to come over as soon as
is possible. We are open for business, and there is time available. The
sooner the debates occur, the sooner we will be able to set these
matters for votes on Monday.
Amendment No. 3807
Mr. LIEBERMAN. In the meantime, Mr. President, I would like to take
this opportunity to say a word about amendment No. 3807 which Senator
McCain and I offered yesterday. This is another of the elements of the
9/11 Commission report that was part of legislation Senator McCain and
I introduced the day after Labor Day as a way to guarantee that all
elements of the 9/11 report would be before the Senate.
This one has to do with effective screening to keep terrorists out of
America and away from vital infrastructure in America. It is a comment
on the age in which we live, something we have taken for granted in
America but has been a great asset of ours, and that is the size of our
country, the size of our borders, and the welcome mat we generally have
put out for people visiting our country.
That openness has been exploited--it certainly was prior to the
attacks of September 11--exploited by those who, as someone else has
said, hate us more than they love their own lives. They come in here
and are prepared to blow themselves up to kill Americans. That demands
that we not try to put a wall around America--we can never do that--but
that we be aggressive and smart about raising our guard and requiring
some standards of personal identification from people coming into
America, something we have not required before.
We can do that without compromising unduly, unnecessarily, the
openness of our country and the welcome we put out to both those who
want to emigrate here and those who just plain want to visit.
The amendment Senator McCain and I offered has several parts to it.
One is to simply help us obtain better information about the way in
which terrorists move around, the way in which they intend to exploit
our transportation systems, our existing laws, to do damage to us and
our people. We want to better screen for terrorists in foreign
countries long before they can reach our borders. We want to better
train border personnel. We want to use the most sophisticated computer
imaging equipment to detect fraudulent travel documents. We want to
better screen at the borders and at points of access, as I say, to
critical infrastructure, transportation particularly, and we want to do
more to protect against
[[Page S10216]]
identity fraud and identity theft because so often these terrorists
will assume new identities as a way to gain access to the country and
access to places where they can inflict damage on us.
What it means to defend America has changed. In a different age, the
age of serious conflict, it meant having the strongest military we
could, having the most sophisticated weapons we could, to deter enemy
attack, to be prepared to go to the battlefield, to deploy our forces
to meet the enemy and defeat the enemy. Today, it involves homeland
security in a way it never has before in our history, and this
amendment would enable us to raise our homeland security in the best
way possible.
In its analysis of the events leading up to September 11, 2001, the
9/11 Commission concluded that the terrorists are as reliant on travel
documents as they ultimately are on weapons. To succeed, they have to
travel clandestinely to meet, train, plan, case targets, look at
targets, and gain access to sites they want to attack. They rely on
networks of people to facilitate their travel, people they place within
this country. Commonly, their travel documents have been tampered with.
The 9/11 Commission found that as many as 15 of the 19 9/11 hijackers
could have been intercepted at the borders. Two of them actually
entered the United States even though they were known as terrorists by
at least one agency in the intelligence community of the United States.
They were on a terrorist watch list. They had been heard at a meeting
in Kuala Lumpur, kind of a world conference of terrorists, al-Qaida
largely, where we now believe the attacks of 9/11 were planned. Two of
them met that standard.
The point is we have to address the multiple opportunities to
identify and stop the terrorists at every point along their travel
routes long before they reach our entry points, at our border
crossings. Once inside the country, we have to find ways to detect
them.
The first thing this amendment does is seek to improve our
intelligence about how terrorists travel. Before 9/11 and even today,
there is no agency within the Federal Government that has the
responsibility to consider this question. The Department of Homeland
Security, therefore, would be directed by the amendment to work with
the appropriate intelligence and law enforcement agencies in a
coordinated effort to detect methods and patterns of travel, such as
the use of specific routes. They would look for those who assist
terrorists, be they human smugglers or corrupt government officials.
There is information--and I can describe it because it was mentioned
in a newspaper; I saw it in the Washington Times earlier this week--
about terrorist elements, al-Qaida working with certain gangs, drug
groups, who customarily smuggle people across our southern border to
work with them to smuggle in terrorists. We cannot sit back and let
that happen.
This amendment would also expand screening for terrorists long before
they reach our borders. Federal agencies would be required to develop a
plan for working with foreign countries to share information on
terrorists and increase inspection at foreign airports, not just U.S.
airports. The amendment would increase investment in new technologies
that can detect false travel documents or those with certain indicators
that are consistent with terrorist use based on patterns of what we
know now, and would require both the Department of Homeland Security
and the State Department to provide training about terrorist travel to
our front-line border officials so they may better spot forged
passports or other subtle clues that warrant further scrutiny.
The best available technology should also be provided to our
embassies and consulates to detect doctored passports or other forms of
false identification before the applicant is issued a visa, set up a
kind of technological wall of identification, most specifically at
visa-granting points around the world for visas to come to the United
States. To improve screening at our borders, the 9/11 Commission
recognized the need for a robust entry and exit system based on the use
of biometric information. A system of this sort has been under
development for over a year now, but it needs to be improved and
accelerated. Our amendment requires the Department of Homeland Security
to do just that.
The 9/11 Commission also recommended that we close the gaping hole in
our border security created by policies allowing easy passage into the
United States from Canada, Mexico, and the Caribbean; logical enough in
years past, the natural neighborly tendency of the United States of
America and Americans generally, but unfortunately it is a policy of
openness that has been exploited and continues to be exploited by the
terrorists.
Our lenient border policies with our neighbors to the north and south
today constitute a vulnerability. Travelers may now cross these borders
with no other proof of U.S. citizenship than a verbal statement.
Individuals claiming to be Canadians enter our country from Canada
without showing a passport. The policies are evidence of our good
relations with our neighbors, but in the age of terrorism, that
friendship must allow for better security for the benefit of both.
Our amendment would require biometric passports, or an identification
document just as secure, for everyone crossing into the United States,
even U.S. citizens and our closest neighbors.
As we make our borders more secure, we must not forsake the
principles of openness and freedom that define us as a nation. This
amendment therefore requires that the Department of Homeland Security
consolidate and improve a registered travel program that allows
previously screened and trusted travelers to go quickly across our
borders so that officials may focus on those who might do us harm.
Finally, this amendment improves the way we issue key identification
documents, such as driver's licenses, birth certificates, or personal
identification cards that may be required before boarding a commercial
airliner or requested by a law enforcement officer who has grounds to
be suspicious. It would require minimum security standards for these
documents and directs the Federal Government to work with the States to
establish minimum standards for both the security features embedded in
these documents and for the way in which the documents are issued.
By the way, a similar program is already in effect for issuing
commercial driver's licenses. In this regard, I want to thank my
cosponsor on this amendment, Senator McCain, and the Senator from
Illinois, Mr. Durbin, for their long work together in the interest of
establishing not a national identity card but minimum uniform standards
for personal identification documents in the United States of
America. We have no intention of usurping the State's role here, their
capacity to design their own identification documents. The amendment
specifies that the States retain the full authority to decide who
qualifies, for example, for a driver's license. We would, in addition,
provide grants to the States to help them implement these new
standards.
For several decades, study after study has told us how easy it is to
obtain a false identity in this country. As recently as 2002, GAO
investigators used fraudulent identification made by commercially
available computer software to obtain driver's licenses in several
States. Of course, the driver's license is an entry card to a personal
identification and clearance throughout the system.
We have known about this problem for decades, but after September 11
we can't wait any longer--and we are still waiting, since September 11,
to do anything about it. This bill will push us forward.
The 9/11 Commission described a variety of loopholes and flaws and
inadequacies in our current border security personal identity system.
We must close and repair those; close those loopholes, repair those
flaws, and put to an end, as best we can, to the terrorists' ability to
continually reinvent themselves and escape detection. We are up to
this. We are technologically up to this. The question is whether we
have the will and the common sense to do so.
This amendment would help our border and law enforcement officials
accomplish exactly that. For the sake of the safety of all Americans, I
ask my colleagues to support this amendment.
I note with gratitude the presence on the floor of Senator Levin. I
yield the floor to him at this time for the purpose of offering an
amendment.
[[Page S10217]]
The PRESIDING OFFICER. The Senator from Michigan.
Amendment No. 3808
Mr. LEVIN. I thank my good friend from Connecticut. I thank him and
Senator Collins, again, for their leadership on this very critically
important bill, one that is surely needed, one that surely must be done
right. I think we are all determined to do both--to get this bill
passed, but to get it passed in a form which not just improves our
intelligence capability but also addresses an issue which I have been
very much concerned about, which is the shaping of intelligence, the
exaggeration of intelligence, the distortion of intelligence to support
particular policy purposes.
Unhappily, this is not new. We saw the same problem in the Gulf of
Tonkin resolution, with a distortion of the intelligence that was used
in order to obtain passage of a resolution which would support the
expansion of a war in Vietnam.
We saw the same problem with the Iran-contra matter, where
intelligence was distorted, shaped, and misused in order to support a
particular policy position.
We recently saw, before Iraq, that intelligence was shaped and
exaggerated and distorted inside the intelligence community, in my
judgment, after it was received by the policymakers. But even before
they got it, it was shaped in a way that pointed, in every single
instance where there is an error in omission, toward a more imminent
threat, a stronger threat, which thereby supported the position of the
policymakers.
I believe in a stronger national intelligence director. We need a
stronger national intelligence director, but we also want a director
who is going to exercise that power in a way which will not produce
intelligence aimed at supporting policy. We need intelligence which is
aimed at providing facts--unvarnished, objective, independently arrived
at.
While supporting a more powerful director, I do not want to support a
stronger ``yes'' man or simply to support a stronger political arm of
the White House. Here, when I say that, I am referring to any
administration, not just this administration. I don't want national
intelligence directors to be shaping intelligence to support the policy
of any administration. I want them to be providing information which is
critically important to policymakers but information which must be
right, must be accurate, must be objective, must be independently
arrived at. That is what my goal has been.
The Senator from Connecticut and the Senator from Maine, who are
leading this effort, and the Governmental Affairs Committee have
willingly added a number of provisions which have furthered that goal.
There are a number of other provisions which I believe should be added
here on the floor.
I will be offering one today. I have not personally been able to talk
to the Senator from Connecticut, but I understand that this first
amendment of mine may have been cleared now. I want to describe it, in
any event.
I ask unanimous consent we set aside the pending amendment and that
amendment No. 3808 be called up.
The PRESIDING OFFICER. Without objection, it is so ordered. The clerk
will report.
The legislative clerk read as follows:
The Senator from Michigan (Mr. Levin) proposes an amendment numbered
3808.
Mr. LEVIN. I ask unanimous consent the reading of the amendment be
dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To enhance customer focus on intelligence and to ensure
independent intelligence analyses)
On page 14, line 2, strike ``community,'' and insert
``community following receipt of intelligence needs and
requirements from the consumers of national intelligence,''.
On page 14, line 8, insert before the semicolon the
following: ``, while ensuring that the elements of the
intelligence community are able to conduct independent
analyses so as to achieve, to the maximum extent practicable,
competitive analyses''.
Mr. LEVIN. Mr. President, the 9/11 Commission, in addition to
recommending a number of ways in which we could strengthen the national
intelligence director and that office and produce more coordinated and
helpful intelligence reports where we have all the information
necessary to connect the dots and where agencies share information with
each other, also reminded us on page 414 of their report that:
In managing the whole community, the National Intelligence
Director is still providing a service function. With the
partial exception of his or her responsibilities for
overseeing the NCTC [the National Counterterrorism Center]
the National Intelligence Director should support the
consumers of national intelligence--the president and
policymaking advisers, such as secretaries of state, defense
and homeland security, and the Attorney General.
The consumers of intelligence are the ones who need to set forth and
lay out their needs. What do they need by way of collection? What is it
that they and their agencies--whether it is the State Department or
Homeland Security Department or the Treasury Department or any other
department--what kind of satellite capabilities do they need? Where do
they need the electronics to be used? They need to tell that new
national intelligence director and the NCTC what it is they need for
their purposes. They are in the best position to know what are the
requirements of their agency.
When all these requirements and needs are put together, we are then
in a situation where the needs and the requirements of the agencies
will probably exceed the resources that we have available to meet those
needs. At that point, you need somebody to arbitrate. You need somebody
to decide: We have this many needs, but we have only this many
resources. How do we allocate limited resources--or at least not
unlimited resources--among a very finite package of needs which
frequently will exceed the resources we have?
Who is going to arbitrate that problem? If the State Department says
we have to have satellite coverage here, and another department says,
no, we have to have that coverage here, who is going to make that
decision?
The answer which this bill provides, and I think rightly so, is that
the national intelligence director needs to make the decision as to
what needs are going to be met if we can't meet all of them. But in
terms of what those needs are, in terms of setting forth the
requirements of the agency, that has to be something which the agency
head sets up. There is no way that the NID can decide what the State
Department needs and what the Defense Department needs and what the
Treasury Department needs. Those agencies and others have to lay out
what their requirements are, what their needs are.
Where the NID comes in is deciding among those needs which ones have
the top priority. That is why the language in the bill which says that
the NID will establish the collection and analysis priorities and
manage collection tasking is, in my judgment, correct.
I want to make it clear that this amendment is truly intended to
clarify what I believe is the intent of the sponsors of this bill.
There are other amendments I will be offering which differ on the
substance, where there is something I would do differently from the
sponsors of the bill. But this amendment is intended to clarify what I
believe not only is but should be and must be the intent of the
sponsors of this legislation in two ways.
First, as I have just described, and as the 9/11 Commission
described, one of the purposes of the national intelligence director is
to support the consumers of national intelligence. It is the consumers
who must set forth and lay out their needs. When those needs exceed the
resources or can't be met for whatever reason, you need an arbiter.
That is where the NID should come in. Sorry, we can't meet that
department's need; or, Sorry we can't meet the Treasury Department
needs because this Homeland Security need has to take priority. You
need someone who will make that decision and who can make it quickly.
That, I believe, is the intent.
No one is in a position to determine the needs of 15 intelligence
agencies with intelligence operations except those agencies themselves.
But when you aggregate those needs and they exceed the resources, at
that point you have to have a national intelligence director who says,
That has priority and we are tasking that particular satellite; we are
tasking an agency that has satellite capability to accomplish that
particular goal and meet that need rather than their other needs which
cannot be met.
[[Page S10218]]
That is one part of the amendment.
The other clarification has to do with the analyses, the so-called
competitive analyses, which are welcome.
Everybody who testified in front of us--Secretary Powell, Secretary
Ridge, the chairman of our committee and the ranking member said this
at hearings--``We don't want group-think.'' We want independent
analyses. We want analyses which are competitive. We want to encourage
that. We don't want to discourage it.
We want to make it clear in the bill that by giving power to the
national intelligence director to direct that a competitive analysis be
achieved, it is not exclusive. We are still urging all of the
intelligence agencies on their own initiative to provide independently
arrived at and competitive analysis. We want agencies to tell us those
aluminum tubes have two purposes, not just one. We want agencies on
their own initiative--not waiting for a direction by the NID but on
their own initiative, should they determine that is what they wish to
do--to tell us, No, those unmanned aerial vehicles do not have a
purpose of delivering biological weapons; they are more suited for a
legitimate purpose.
We want agencies, in other words, to give us those competitive
analyses which is what is the great antidote to group-think and which
the chairman, the ranking member, and every single witness, I think,
who came in front of us said should be encouraged. We have language in
the bill now which gives the power to the NID to direct a
competitive analysis, which is fine. He or she ought to have that
power.
We want to encourage independent or competitive analysis, and that
means we don't want any agency to think they have to wait for a
direction, but they on their own will be encouraged by the NID to
engage in those kinds of independent analyses.
I want to assure my dear friend from Connecticut, the ranking member,
that this particular amendment does have that purpose. I believe it is
a very commonsense amendment which is complimentary to everything that
is in the bill.
I will be offering amendments perhaps on Monday which I think are
very modest amendments which do, though, make substantive changes to
the bill. This would carry out what I hope the intention is of the
sponsors of the bill and which has been stated by the sponsors of the
bill to be something they deeply believe in.
I yield the floor.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. LIEBERMAN. Mr. President, I thank my friend from Michigan, the
distinguished member of our Governmental Affairs Committee, who has
played a characteristically active, thoughtful, and constructive part
in the markup of and consideration of the committee through the
hearings, drafting, and markup of the bill last week, and he continues
to with this amendment, an amendment somewhat like the one which the
committee didn't agree on. We have worked together. This whole bill has
had so many moments where I felt we were legislating, we were reasoning
together and coming to agreements that will make the system we want
established better. This is one of them. It is totally consistent with
the intention Senator Collins and I have had in putting the bill
together with the intention, in my opinion, of the September 11
Commission, which is to put somebody in charge of the intelligence
community where there is not someone in charge now; to not simply
encourage but to the best of their ability mandate collaboration among
the component agencies of the intelligence community and make sure that
one result of collaboration is not so-called group-think; that there is
independent, competitive analysis going on.
The amendment of the Senator from Michigan, which is focused, does
exactly that. It adds language to make clear that the national
intelligence director shall establish collection and analysis
requirements for the intelligence community based on input from
consumers of that national intelligence which reflect their estimate of
their need and requirements. That is plain common sense.
The director would also establish collection analysis requirements
based on the needs of intelligence consumers in order to produce timely
and relevant products, which is what this is all about.
Senator Levin's amendment also makes clear the director has the
responsibility in setting analysis priorities to ensure that the
elements of the intelligence community are able to conduct, as he has
said, ``independent analyses so as to achieve to the maximum extent
practicable competitive analysis.''
That, too, is not only sensible, but it is in the interest of our
national security.
I thank the Senator from Michigan. I certainly support the amendment.
I believe it has been cleared on both sides. But the Senator from Maine
is not able to be on the floor right now. As soon as she can, I guess
she will want to speak on this and we should adopt this by consent.
I thank the Chair. I yield the floor.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, first let me thank my dear friend from
Connecticut.
I ask unanimous consent that Senator Inouye be added as a cosponsor
to this amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. Mr. President, I don't know whether the Senator from
Connecticut at this point wants to have a voice vote or wait for the
Senator from Maine.
Mr. LIEBERMAN. Mr. President, the Senator from Maine is on her way to
the floor to speak about the amendment. I wonder if we might go into a
quorum call for a moment until she does.
I note the presence of the very distinguished chairman of the
Intelligence Committee. He will go next after we agree to this
amendment.
In the meantime, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Ms. COLLINS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. COLLINS. Mr. President, I support the amendment proposed by
Senator Levin. I thank him for offering it and for all of his hard
work. It reflects not only the Senator's unique experience as a member
of the Intelligence Committee, the Armed Services Committee, and the
Governmental Affairs Committee, but also it reflects his usual care and
attention to detail, which is unparalleled in this body.
The Levin amendment makes clear that the NID will establish
collection and analysis requirements for the intelligence community
following input from the consumers of intelligence. With these
authorities, the NID will be able to manage collection activities
across the intelligence community to ensure that defense, homeland
security, and diplomatic needs are prioritized and satisfied.
Similarly, a strong NID will ensure robust and competitive analysis of
intelligence, prioritized to meet our most pressing needs.
Senator Levin's amendment will clarify that the consumers of national
intelligence should set the requirements for collection and analysis.
It would also emphasize that independent and comparative analyses are
critical to an effective intelligence community.
I thank the Senator from Michigan for his contribution. I urge
agreement of the amendment.
The PRESIDING OFFICER. The question is on agreeing to the Levin
amendment.
The amendment (No. 3808) was agreed to.
Mr. LEVIN. I move to reconsider the vote.
Ms. COLLINS. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER. The Senator from Kansas.
Mr. ROBERTS. Mr. President, I ask unanimous consent that the pending
amendment be set aside.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 3748
Mr. ROBERTS. Mr. President, I ask unanimous consent to call up
amendment No. 3748 entitled ``The Analytic
[[Page S10219]]
Review Unit,'' which probably should be entitled ``The Accountability
Amendment.''
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Kansas [Mr. Roberts] proposes an amendment
numbered 3748.
Mr. ROBERTS. I ask unanimous consent that reading of the amendment be
dispensed with.
The amendment is as follows:
(Purpose: To clarify the duties and responsibilities of the Ombudsman
of the National Intelligence Authority and of the Analytic Review Unit
within the Office of the Ombudsman)
On page 78, line 19, insert ``regular and detailed'' before
``reviews''.
On page 79, strike lines 1 and 2 and insert the following:
political considerations, based upon all sources available to
the intelligence community, and performed in a manner
consistent with sound analytic methods and tradecraft,
including reviews for purposes of determining whether or
not--
(A) such product or products state separately, and
distinguish between, the intelligence underlying such product
or products and the assumptions and judgments of analysts
with respect to the intelligence and such product or
products;
(B) such product or products describe the quality and
reliability of the intelligence underlying such product or
products;
(C) such product or products present and explain
alternative conclusions, if any, with respect to the
intelligence underlying such product or products;
(D) such product or products characterizes the
uncertainties, if any, and the confidence in such product or
products; and
(E) the analyst or analysts responsible for such product or
products had appropriate access to intelligence information
from all sources, regardless of the source of the
information, the method of collection of the information, the
elements of the intelligence community that collected the
information, or the location of such collection.
On page 80, line 1, insert ``(A)'' after ``(5)''.
On page 80, line 3, strike ``, upon request,''.
On page 80, between lines 5 and 6, insert the following:
(B) The results of the evaluations under paragraph (4)
shall also be distributed as appropriate throughout the
intelligence community as a method for training intelligence
community analysts and promoting the development of sound
analytic methods and tradecraft. To ensure the widest
possible distribution of the evaluations, the Analytic Review
Unit shall, when appropriate, produce evaluations at multiple
classification levels.
(6) Upon completion of the evaluations under paragraph (4),
the Ombudsman may make recommendations to the National
Intelligence Director, and to the heads of the elements of
the intelligence community, for such personnel actions as the
Ombudsman considers appropriate in light of the evaluations,
including awards, commendations, reprimands, additional
training, or disciplinary action.
On page 80, line 6, strike ``Information.--'' and insert
``Information and Personnel.--(1)''.
On page 80, line 8, insert ``, the Analytic Review Unit,
and other staff of the Office of the Ombudsman of the
National Intelligence Authority'' after ``Authority''.
On page 80, line 10, insert ``operational and'' before
``field reports''.
On page 80, between lines 13 and 14, insert the following:
(2) The Ombudsman, the Analytic Review Unit, and other
staff of the Office shall have access to any employee, or any
employee of a contractor, of the intelligence community whose
testimony is needed for the performance of the duties of the
Ombudsman.
Mr. ROBERTS. This amendment clarifies the role of the analytical
review unit that the Collins and Lieberman bill creates within the
Office of the Ombudsman of the National Intelligence Authority. The
amendment specifies that the unit will evaluate the quality of the
analysis of our national intelligence agency and, where appropriate,
issue nonbinding--and I underline ``nonbinding''--recommendations for
present personnel actions to include additional training,
commendations, and also any action that would be disciplinary.
This quality control mechanism will help instill accountability--we
have heard that word over and over again in regard to intelligence
reform, independence, leadership, and accountability--in the
intelligence community's analytical effort in an effort to guard
against analytical failures such as prewar intelligence assessment
concerning Iraq's weapons of mass destruction programs by providing
regular quality control audits of the intelligence community's
analysis.
I am extremely hopeful the managers can find a way to include this
important amendment in the bill.
I ask unanimous consent to set aside the amendment at this time.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendments Nos. 3739 and 3750, En Bloc
Mr. ROBERTS. Mr. President, I ask unanimous consent to call up en
bloc amendments 3739 and 3750 and ask that they be considered
separately.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will report.
The legislative clerk read as follows:
The Senator from Kansas [Mr. Roberts] proposes amendments
numbered 3739 and 3750, en bloc.
Mr. ROBERTS. I ask unanimous consent that the reading of the
amendments be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendments are as follows:
amendment no. 3739
(Purpose: To ensure the sharing of intelligence information in a manner
that promotes all-sources analysis and to assign responsibility for
competitive analysis)
On page 17, between lines 19 and 20, insert the following:
(11) direct an element or elements of the intelligence
community to conduct competitive analysis of analytic
productions, particularly products having national
importance;
(12) implement policies and procedures to encourage sound
analytic methods and tradecraft throughout the elements of
the intelligence community and to ensure that the elements of
the intelligence community regularly conduct competitive
analysis of analytic products, whether such products are
produced by or disseminated to such elements;
On page 17, line 20, strike ``(11)'' and insert ``(13)''.
On page 17, line 22, strike ``(12)'' and insert ``(14)''.
On page 18, line 1, strike ``(13)'' and insert ``(15)''.
On page 18, between lines 3 and 4, insert the following:
(16) ensure that intelligence (including unevaluated
intelligence), the source of such intelligence, and the
method used to collect such intelligence is disseminated in a
timely and efficient manner that promotes comprehensive all-
source analysis by appropriately cleared officers and
employees of the United States Government, notwithstanding
the element of the intelligence community that collected such
intelligence or the location of such collection;
On page 18, line 4, strike ``(14)'' and insert ``(17)''.
On page 18, line 7, strike ``(15)'' and insert ``(18)''.
On page 18, line 14, strike ``(16)'' and insert ``(19)''.
On page 18, line 17, strike ``(17)'' and insert ``(20)''.
On page 18, line 20, strike ``(18)'' and insert ``(21)''.
On page 19, line 5, strike ``(19)'' and insert ``(22)''.
On page 19, line 7, strike ``(20)'' and insert ``(23)''.
On page 20, strike lines 12 through 14 and insert the
following:
shall have access to all intelligence and, consistent with
subsection (k), any other information which is collected by,
possessed by, or under the control of any department, agency,
or other element of the United States Government when
necessary to carry out the duties and responsibilities of the
Director under this Act or any other provision of law.
On page 31, line 1, strike ``112(a)(16)'' and insert
``112(a)(19)''.
On page 31, strike line 22 and insert the following:
ensures information-sharing, including direct, continuous,
and automated access to unevaluated intelligence data in its
earliest understandable form.
On page 32, beginning on line 3, strike ``information-
sharing'' and all that follows through line 4 and insert
``information-sharing, including direct, continuous, and
automated access to unevaluated intelligence data in its
earliest understandable form.''.
On page 32, line 16, insert ``and Analysis'' after
``Collection''.
On page 32, line 19, insert ``and analysis'' after
``collection''.
On page 32, beginning on line 21, strike ``the head of each
element of the intelligence community'' and insert ``the head
of any department, agency, or element of the United States
Government, and the components and programs thereof,''.
On page 56, line 20, strike ``(15) and (16)'' and insert
``(18) and (19)''.
On page 194, line 9, strike ``112(a)(11)'' and insert
``112(a)(13)''.
On page 195, line 16, strike ``112(a)(11)'' and insert
``112(a)(13)''.
On page 195, line 23, strike ``112(a)(11)'' and insert
``112(a)(13)''.
On page 196, line 7, strike ``112(a)(11)'' and insert
``112(a)(13)''.
amendment no. 3750
(Purpose: To clarify the responsibilities of the Directorate of
Intelligence of the National Counterterrorism Center for information-
sharing and intelligence analysis)
On page 87, line 16, strike ``and'' at the end.
[[Page S10220]]
On page 87 between lines 16 and 17, insert the following:
(D) ensure that intelligence (including unevaluated
intelligence) concerning suspected terrorists, their
organizations, and their capabilities, plans, and intentions,
the source of such intelligence, and the method used to
collect such intelligence is disseminated in a timely and
efficient manner that promotes comprehensive all-source
analysis with the Directorate and by appropriately cleared
officers and employees of the United States Government,
notwithstanding the element of the intelligence community
that collected such intelligence or the location of such
collection;
(E) conduct, or direct through the National Intelligence
Director an element or elements of the intelligence community
to conduct, competitive analyses of intelligence products
relating to suspected terrorists, their organizations, and
their capabilities, plans, and intentions, particularly
products having national importance;
(F) implement policies and procedures to encourage
coordination by all elements of the intelligence community
that conduct analysis of intelligence regarding terrorism of
all Directorate products of national importance and, as
appropriate, other products, before their final
dissemination;
(G) ensure the dissemination of Directorate intelligence
products to the President, to Congress, to the heads of other
departments and agencies of the executive branch, to the
Chairman of the Joint Chiefs of Staff and senior military
commanders, and to such other persons or entities as the
President shall direct; and
On page 87, line 17, strike ``(D)'' and insert ``(H)''.
On page 96, line 16, strike ``foreign''.
Mr. ROBERTS. This amendment clarifies that a primary mission of
National Intelligence Authority is the elimination of barriers that
impede any coordination of all intelligence activities, not merely
counterterrorism activities.
Three years after 9/11, information sharing still remains,
unfortunately, a serious problem. As recently as last week--as recently
as last week--the Senate Intelligence Committee received a disturbing
briefing in closed session that clearly demonstrated that even on
matters related to the current terrorist threat to our homeland, the
intelligence agencies still stubbornly refuse to adequately share
information.
The National Security Act of 1947 clearly stipulates that a primary
mission of the head of the intelligence community is to protect sources
and methods. The current language of the Collins-Lieberman bill wisely
balances this with the need to also ensure that intelligence concerning
terrorism is certainly shared with those who need it.
This amendment seeks to broaden that responsibility to include all
intelligence threats, such as the proliferation of weapons of mass
destruction, North Korea, and other intelligence threats, not just
terrorism. Terrorism is a serious threat, but it is not the last threat
that we will face.
This amendment, which would build on the Collins-Lieberman bill and
their already strong provisions for a ``trusted information network,''
also stipulates that the national intelligence director is responsible
for ensuring that the information-sharing process be automated to allow
intelligence analysts to ``pull'' information from databases rather
than waiting for somebody to push it to them. Currently, much of the
information sharing that does occur in the intelligence community
happens only through phones and fax machines, which is very
inefficient, and also it is unreliable.
I am hopeful the managers can find a way to include this important
amendment in the bill. I ask unanimous consent that the amendment be
set aside.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 3747
Mr. ROBERTS. Mr. President, I ask unanimous consent to call up
amendment No. 3747.
The PRESIDING OFFICER. Without objection, the clerk will report.
The legislative clerk read as follows:
The Senator from Kansas [Mr. Roberts] proposes an amendment
numbered 3747.
Mr. ROBERTS. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To provide the National Intelligence Director with flexible
administrative authority with respect to the National Intelligence
Authority)
On page 43, after line 20, add the following:
SEC. 119. ADMINISTRATIVE AUTHORITIES.
(a) Exercise of Administrative Authorities.--
Notwithstanding any other provision of law, the National
Intelligence Director may exercise with respect to the
National Intelligence Authority any authority of the Director
of the Central Intelligence Agency with respect to the
Central Intelligence Agency under a provision of the Central
Intelligence Agency Act of 1949 specified in subsection (c).
(b) Delegation of Administrative Authorities.--
Notwithstanding any other provision of law, the National
Intelligence Director may delegate to the head of any other
element of the intelligence community with a program,
project, or activity within the National Intelligence Program
for purposes of such program, project or activity any
authority of the Director of the Central Intelligence Agency
with respect to the Central Intelligence Agency under a
provision of the Central Intelligence Agency Act of 1949
specified in subsection (c).
(c) Specified Authorities.--The authorities of the Director
of the Central Intelligence Agency specified in this
subsection are the authorities under the Central Intelligence
Agency Act of 1949 as follows:
(1) Section 3 (50 U.S.C. 403c), relating to procurement.
(2) Section 4 (50 U.S.C. 403e), relating to travel
allowances and related expenses.
(3) Section 5 (50 U.S.C. 403f), relating to administration
of funds.
(4) Section 6 (50 U.S.C. 403g), relating to exemptions from
certain information disclosure requirements.
(5) Section 8 (50 U.S.C. 403j), relating to availability of
appropriations.
(6) Section 11 (50 U.S.C. 403k), relating to payment of
death gratuities.
(7) Section 12 (50 U.S.C. 403l), relating to acceptance of
gifts, devises, and bequests.
(8) Section 21 (50 U.S.C. 403u), relating to operation of a
central services program.
(d) Exercise of Delegated Authority.--Notwithstanding any
other provision of law, the head of an element of the
intelligence community delegated an authority under
subsection (b) with respect to a program, project, or
activity may exercise such authority with respect to such
program, project, or activity to the same extent that the
Director of the Central Intelligence Agency may exercise such
authority with respect to the Central Intelligence Agency.
On page 108, line 12, strike ``(1)''.
On page 108, line 19, strike ``(2)'' and insert ``(b)
Deposit of Proceeds.--''.
On page 108, strike line 23 and all that follows through
page 109, line 3.
Mr. ROBERTS. Mr. President, this amendment would provide the national
intelligence director with certain specified authorities already
provided to the Central Intelligence Agency. These provisions include
flexible acquisition, spending, personnel, and management authorities.
As I have indicated, the national intelligence director already has
these authorities. In addition, the amendment permits the national
intelligence director to delegate any of the specified authorities to
the head of an element of the intelligence community for use by that
element.
Under the National Security Act of 1947, the CIA has a range of
authorities in matters such as acquisition, spending, personnel, and
management that do not exist anywhere else in Government. These sorts
of authorities are often required to effectively conduct intelligence
operations in a very timely way. This amendment seeks to empower the
national intelligence director by allowing him to exercise these
authorities anywhere in the intelligence community that he sees fit,
not just at the CIA.
I am extremely hopeful that the managers can find a way to include
this very important amendment in the bill.
Mr. President, I ask unanimous consent to set aside the amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 3742
Mr. ROBERTS. Mr. President, I ask unanimous consent to call up
amendment No. 3742.
The PRESIDING OFFICER. Without objection, the clerk will report.
The legislative clerk read as follows:
The Senator from Kansas [Mr. Roberts] proposes an amendment
numbered 3742.
Mr. ROBERTS. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To clarify the continuing applicability of section 504 of the
National Security Act of 1947 to the obligation and expenditure of
funds appropriated for the intelligence and intelligence-related
activities of the United States)
On page 28, line 17, strike ``or'' and insert ``and''.
On page 33, between lines 2 and 3, insert the following:
[[Page S10221]]
SEC. 114. FUNDING OF INTELLIGENCE ACTIVITIES.
(a) Funding of Activities.--(1) Notwithstanding any other
provision of law, appropriated funds available to an
intelligence agency may be obligated or expended for an
intelligence or intelligence-related activity only if--
(A) those funds were specifically authorized by the
Congress for use for such activities;
(B) in the case of funds from the Reserve for Contingencies
of the National Intelligence Director, and consistent with
the provisions of section 503 of the National Security Act of
1947 (50 U.S.C. 413b) concerning any significant anticipated
intelligence activity, the National Intelligence Director has
notified the appropriate congressional committees of the
intent to make such funds available for such activity; or
(C) in the case of funds specifically authorized by the
Congress for a different activity--
(i) the activity to be funded is a higher priority
intelligence or intelligence-related activity; and
(ii) the National Intelligence Director, the Secretary of
Defense, or the Attorney General, as appropriate, has
notified the appropriate congressional committees of the
intent to make such funds available for such activity.
(2) Nothing in this subsection prohibits the obligation or
expenditure of funds available to an intelligence agency in
accordance with sections 1535 and 1536 of title 31, United
States Code.
(b) Applicability of Other Authorities.--Notwithstanding
any other provision of this Act, appropriated funds available
to an intelligence agency may be obligated or expended for an
intelligence, intelligence-related, or other activity only if
such obligation or expenditure is consistent with subsections
(b), (c), and (d) of section 504 of the National Security Act
of 1947 (50 U.S.C. 414).
(c) Definitions.--In this section:
(1) The term ``intelligence agency'' means any department,
agency, or other entity of the United States involved in
intelligence or intelligence-related activities.
(2) The term ``appropriate congressional committees''
means--
(A) the Permanent Select Committee on Intelligence and the
Committee on Appropriations of the House of Representatives;
and
(B) the Select Committee on Intelligence and the Committee
on Appropriations of the Senate.
(3) The term ``specifically authorized by the Congress''
means that--
(A) the activity and the amount of funds proposed to be
used for that activity were identified in a formal budget
request to the Congress, but funds shall be deemed to be
specifically authorized for that activity only to the extent
that the Congress both authorized the funds to be
appropriated for that activity and appropriated the funds for
that activity; or
(B) although the funds were not formally requested, the
Congress both specifically authorized the appropriation of
the funds for the activity and appropriated the funds for the
activity.
On page 33, line 3, strike ``114.'' and insert ``115.''.
On page 35, line 1, strike ``115.'' and insert ``116.''.
On page 38, line 21, strike ``116.'' and insert ``117.''.
On page 40, line 10, strike ``117.'' and insert ``118.''.
On page 43, line 1, strike ``118.'' and insert ``119.''.
On page 200, between line 18 and 19, insert the following:
SEC. 309. CONFORMING AMENDMENT ON FUNDING OF INTELLIGENCE
ACTIVITIES.
Section 504(a)(3) of the National Security Act of 1947 (50
U.S.C. 414(a)(3)) is amended--
(1) in subparagraph (A), by adding ``and'' at the end;
(2) by striking subparagraph (B); and
(3) by redesignating subparagraph (C) as subparagraph (B).
On page 200, line 19, strike ``309.'' and insert ``310.''.
On page 201, line 11, strike ``310.'' and insert ``311.''.
On page 203, line 9, strike ``311.'' and insert ``312.''.
On page 204, line 1, strike ``312.'' and insert ``313.''.
Mr. ROBERTS. Mr. President, this amendment would preserve the
requirement in section 504 of the National Security Act that funds
appropriated for an intelligence activity must also be specifically
authorized.
I am hopeful I can work with the managers of the bill and that we
will be able to include this important amendment in the bill. It is
absolutely essential.
Mr. President, I ask unanimous consent that the amendment be set
aside.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendments Nos. 3740, 3741, 3744, and 3751
Mr. ROBERTS. Mr. President, I ask unanimous consent to call up en
bloc amendments Nos. 3740, 3741, 3744, and 3751, and I ask they be
considered separately.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will report.
The legislative clerk read as follows:
The Senator from Kansas [Mr. Roberts] proposes amendments
numbered 3740, 3741, 3744, and 3751 en bloc.
Mr. ROBERTS. Mr. President, I ask unanimous consent that reading of
the amendments be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendments en bloc are as follows:
amendment no. 3740
(Purpose: To include among the primary missions of the National
Intelligence Director the elimination of barriers to the coordination
of intelligence activities)
On page 9 line 13, insert ``and intelligence'' after
``counterterrorism''.
amendment no. 3741
(Purpose: To permit the National Intelligence Director to modify
National Intelligence Program budgets before their approval and
submittal to the President)
On page 23, line 1, strike ``may require modifications''
and insert ``may modify, or may require modifications,''.
amendment no. 3744
(Purpose: To clarify the limitation on the transfer of funds and
personnel and to preserve and enhance congressional oversight of
intelligence activities)
On page 28, line 17, strike ``or'' and insert ``and''.
On page 112, beginning on line 12, strike ``Committee on
Governmental Affairs of the Senate and the Committee on
Government Reform of the House of Representatives'' and
insert ``Select Committee on Intelligence and the Committee
on Governmental Affairs of the Senate and the Permanent
Select Committee on Intelligence and the Committee on
Government Reform of the House of Representatives''.
On page 172, strike line 18 and all that follows through
page 174, line 23, and insert the following
SEC. 224. COMMUNICATIONS WITH CONGRESS.
amendment no. 3751
(Purpose: To clarify the responsibilities of the Secretary of Defense
pertaining to the National Intelligence Program)
On page 200, strike lines 5 through 11 and insert the
following:
SEC. 307. CONFORMING AMENDMENTS ON RESPONSIBILITIES OF
SECRETARY OF DEFENSE PERTAINING TO NATIONAL
INTELLIGENCE PROGRAM.
Section 105(a) of the National Security Act of 1947 (50
U.S.C. 403-5(a)) is amended--
(1) in paragraph (1), by striking ``ensure'' and inserting
``assist the Director in ensuring''; and
(2) in paragraph (2), by striking ``appropriate''.
Mr. ROBERTS. Mr. President, these amendments contain clarifications
to the authorities of the national intelligence director. I am told
that our staffs have been working very diligently on these matters. I
believe that they strengthen the bill, and I am hopeful they will be
accepted by the managers of the bill.
Mr. President, I ask unanimous consent that these amendments now be
set aside.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ROBERTS. Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Mr. President, I thank the Senator from Kansas, the
distinguished chairman of the Senate Intelligence Committee, for his
thoughtful amendments.
I have a great deal of admiration and respect for the Senator's
knowledge in this area. I was very pleased that he participated in some
of the committee's hearings, particularly the one where we had the
former DCIs come in and give us their views. Both and he Senator
Rockefeller took the time out of their August recess to come to that
hearing and fully participated in it. They have been providing us with
their insight and guidance, which I very much appreciate.
The Senator from Kansas has offered a series of thoughtful amendments
that are designed to clarify provisions in the bill with regard to
information sharing, the primary mission of the National Intelligence
Authority, the authorities of the NID, and several other matters. We
agree largely with the goals of these amendments, and we are trying to
work out agreement on specific language.
One of the problems we face, since we have adopted a lot of different
amendments, including one cosponsored by the Senator last night having
to do with an office of alternative analysis, is we need to make sure
we are not duplicating changes that have been made by other amendments.
It is a bit of a moving target here.
[[Page S10222]]
Another problem is, of course, we are trying to maintain that
delicate balance struck by our bill. Any amendment that further
strengthens the NID's authorities is a particular concern to one group;
any amendment that weakens the NID's authorities is a particular
concern to another. I know the Senator is very aware of the competing
pressures in this regard.
In short, I want to assure the Senator and thank him for his
contributions. We will try to work out these amendments consistent with
the approach we have taken in the underlying bill. I very much
appreciate the Senator's cooperation and good work and his leadership
in this area.
Mr. ROBERTS. Mr. President, will the distinguished chairman yield?
Ms. COLLINS. I would be happy to yield.
Mr. ROBERTS. I say to the Senator, I would like to thank you for your
very kind remarks. As the chairman knows, we have 22 professional
staffers who were former analysts throughout the intelligence
community. We would like to think we have expertise on this issue. As
the chairman knows and the distinguished ranking member knows, we did
produce a 511-page inquiry on WMD in regard to the inquiry on the
prewar intelligence. I think it is the most thorough look at the
intelligence community that has been conducted in the last 20 years. I
am very proud of our staff. I think we have an outstanding staff.
I would just like to say this: This is not going to be the best
possible bill. This is going to be the best bill possible to achieve
that delicate balance that the distinguished chairman has talked about.
And that is not being untoward. That is not bad. This is a very
comprehensive bill. This touches our entire intelligence community. So
we are bound to have to take a good look at this, and we are also going
to be bound in terms of our responsibilities in terms of oversight.
I would imagine that with any bill you have what is called technical
corrections. In this particular bill, we are going to have to take a
hard look at not only technical corrections but monitor this bill as it
evolves. But the important thing is that both Senators have been the
primary movers of this bill in moving it forward in a comprehensive
way. I credit them for their work. I can speak for all members of the
Intelligence Committee: We are here, and we are here to help.
I thank the Senator for her kind comments.
The PRESIDING OFFICER (Mr. Burns). The Senator from Connecticut.
Mr. LIEBERMAN. Mr. President, I cannot thank the Senator from Kansas
enough, chairman of the Intelligence Committee, for what he has said.
It means everything to me and, I know, to Senator Collins. We were
asked to take on this assignment in the Governmental Affairs Committee
because we are the committee of jurisdiction over governmental
reorganization. The Intelligence Committee clearly has the experience
and expertise in matters of intelligence. Senator Roberts and Senator
Rockefeller have contributed to the product we have turned out. But it
is critically important to the success of what we have started here
that our committee be working together with Senator Roberts and his
committee.
I appreciate the effort and thoughtfulness that went into the many
amendments that the Senator from Kansas is offering. Our staffs are
looking them over. As Senator Collins said, I hope we can accept a
number of them. They share the goals that we have together, and they
will strengthen the bill. Then I look forward to Senator Roberts being
on the conference committee and helping us to come up with a good
result when we meet our friends from the House.
Most of all, I thank him, my friend. Together we are going to get
something good done, not just for the intelligence community but for
the reason for which our intelligence agencies exist, and that is for
our national security.
I thank the Chair and yield the floor.
The PRESIDING OFFICER. Who seeks recognition?
Mr. LIEBERMAN. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. CHAMBLISS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 3801
Mr. CHAMBLISS. Mr. President, I call for regular order with respect
to amendment No. 3801.
The PRESIDING OFFICER. The amendment is pending.
Mr. CHAMBLISS. Mr. President, I rise today, along with my colleague
Senator Kyl, in support of amendment No. 3801 which I will describe in
a minute.
Before I get to that, let me thank the chairman and ranking member of
the Governmental Affairs Committee for the great work they have done on
this bill. There has been no more delicate situation this body has had
to deal with in many years, certainly in the 10 years I have been
privileged to be a part of the Congress. Certainly there is no more
important issue before us today because this issue involves the safety
and security of every American, not just this generation but future
generations to come. No two people have the concern of the American
people more at heart than do Chairman Collins and Ranking Member
Lieberman, both of whom I have tremendous respect for. I appreciate
their leadership on this issue.
Today I rise along with Senator Kyl in support of amendment No. 3801
to S. 2845. This amendment focuses on intelligence reform relative to
the civil liberties provision in the underlying bill. Section 211 of
the underlying bill establishes a civil liberties board and gives that
board certain powers and authorities.
Let me be clear: There is no stronger advocate for civil liberties in
the Senate than myself. As a lawyer and a legislator, my entire
professional life has been intertwined with the preservation of the
liberties we all enjoy as Americans and which are enshrined in our
Constitution and our Bill of Rights. The issue we debate today is not
whether we support our civil liberties; we all support them as
contained in the Constitution and the Bill of Rights. The question is,
how best to balance this issue with other rights that form the
cornerstone of our Constitution: namely, that among our inalienable
rights from our Creator are life, liberty, and the pursuit of
happiness.
When Islamic terrorists threaten our life and our liberties, we must
act to protect ourselves. That is why we are here today debating the
reformation of our intelligence community. We know our enemies want to
kill us, and we understand that good intelligence will protect us. In
our country, we may differ on how to do this, but there is no
disagreement on why we need to do it. Our challenge is to increase our
intelligence capabilities without undue infringement on our individual
liberties.
Today our struggle is against an enemy unique in our history. The
enemy is not a nation state. Rather, it is a warped philosophy that
distorts any rational notion of what a Supreme Being expects of
mankind. There are no rules of warfare for our enemy. They feel free
and unencumbered to fly civilian airplanes loaded with innocent
passengers into buildings, killing thousands of ordinary, hard-working,
good citizens of our country. They relish in cutting off the heads of
people who have done no harm to them whatsoever, recording it on video
and broadcasting their horrific, inhumane actions to the world.
One only has to look at one of those tapes or listen to the voices of
helpless victims pleading for their lives to grasp how evil and
dangerous these Islamic terrorists are and why this Nation must succeed
in our fight against them.
To win against such an enemy, we need to keep our focus. We need
clear, unambiguous, and non-duplicative orders and laws pertaining to
our war on terrorism and the protection of our civil liberties.
S. 2845 is a bill to strengthen our intelligence capabilities. It is
meant to put more teeth into our ability to track, find, and arrest or
kill those who wish to murder our people and destroy our way of life.
It is not a bill regarding our civil liberties.
As a member of the Senate Judiciary Committee on the Constitution,
Civil Rights, and Property Rights, which has oversight responsibility
in this area, I
[[Page S10223]]
am keenly aware of the safeguards that are already in place to protect
our civil liberties from overreaching by the Government. Within the
Department of Justice, there is an entire division devoted to
protecting our civil rights. This division is responsible for
coordinating the civil rights enforcement efforts of Federal agencies
and assists in identifying and removing provisions, policies, and
programs that violate our individual rights and liberties.
Last month, by Executive Order 13353, President Bush created the
President's Board on Safeguarding Americans' Civil Liberties. This
board is specifically designed to further strengthen the protection of
the rights of Americans in the effective performance of national
security and homeland security functions.
As the President said when he established the board and I quote,
``The United States Government has a solemn obligation, and shall
continue fully, to protect the legal rights of all Americans, including
freedoms, civil liberties, and information privacy guaranteed by
Federal law, in the effective performance of national security and
homeland security functions.''
Our amendment to S. 2845 clearly highlights the importance we all
place on civil liberties, but it leaves the power to enforce our laws
on this issue where it belongs--with the appropriate Federal agencies
that are already equipped and designed for that function.
Whenever U.S. officials or U.S. military personnel violate any of our
laws, they need to be fully prosecuted. Of course, we have good systems
already in place to make sure that happens. For example, as bad as the
abuse of some Iraqi prisoners was, our military justice system is
handling those soldiers accused in exactly the right way.
Let me tell you a little bit about what this board is designed to do
and the powers and authorities of this board. I am reading from page
155 of the underlying bill:
The Board shall continually review the information sharing
practices of the department's agencies, and elements of the
executive branch to determine whether they appropriately
protect privacy and civil liberties . . .
And so on.
Now, further, on page 158, in order to accomplish the provisions set
forth in the section I just read, this board has access to information
as follows, and I am quoting from page 158, line 21:
If determined by the Board to be necessary to carry out its
responsibilities under this section, the Board is authorized
to . . .
Now I read on page 159, line 12:
. . . require, by subpoena issued at the direction of a
majority of the members of the Board, persons (other than
departments, agencies, and elements of the executive branch)
to produce any relevant information, documents, reports,
answers, records, accounts, papers, and other documentary or
testimonial evidence.
Now, this board has an obligation not to sit back and wait for any
complaints to be raised, or any issues to be raised with the board, but
an affirmative obligation to go out and review the policies and
procedures of the civil organizations underneath the executive
department. So what is going to happen, without question, is there will
be problems in the intelligence community. We know and understand that.
The No. 1 deficiency in the intelligence community is highlighted by
every single board; every single committee within this body, or outside
committee, that has looked at this issue has agreed that the lack of
human intelligence is what the main deficiency has been and continues
to be today.
The only way we are going to cure that problem is to encourage our
spies in the field--and that is exactly what they are--and these spies
are absolutely necessary to provide the kind of intelligence our
military and civilian authorities need to ensure our national security.
This board is going to have the authority to aggressively go out and
review any situation relative to a case that is ongoing by any officer
of the CIA, wherever in the world that officer may be operating. This
board is going to have the ability to take statements from individuals
who are Government employees, or people outside the Government, who
have information relative to any case they want to look at.
This bill goes even further. It says this board has authority by
subpoena issued by just a majority of the members of this board, to
require individuals or agencies to produce documents, including
classified documents, that may be reviewed on any particular case.
What is that going to do to every single CIA agent who operates in
the field, or to every DIA agent who operates in the field and who
shares information with the CIA? I think, without question, what we are
doing by the enactment of these particular sections is to create a
morale problem at the Central Intelligence Agency and our other
intelligence agencies throughout our intelligence community that we
will never repair.
We are on the back side today, thank goodness, of having repealed the
Deutch guidelines that were implemented in 1995. Those guidelines
prohibited the expenditure of tax money being paid to individuals
providing us intelligence if they had a criminal record or any kind of
disparaging record in their past. Well, what that meant was that we
could only hire Sunday school teachers to go out and spy on bad guys
around the world. Thank goodness this body took affirmative action in
the last couple of years to repeal those guidelines. But it was only
after the events of September 11 that we were able to accomplish that.
In addition to the morale problem that will be created, which I don't
think we will ever overcome, one might say this is a board that is
going to be appointed by the President, confirmed by the Senate, and
they are not to be a political board. Everybody in this body knows what
that means. This is going to be a political board. In fact, the
legislation itself says that members of the board shall be selected
solely on the basis of their professional qualifications, achievements,
public stature, expertise in civil liberties and privacy, relevant
experience, and without regard to political affiliation. But in no
event shall more than three members of the board be members of the same
political party. So what we are doing here, in effect, is creating a
political board. It makes no difference to me which administration is
in office. I think it is bad policy to have our CIA agents, DIA agents,
and every other intelligence officer in the field that operates for the
sole purpose of gathering intelligence to save and protect Americans
from being killed or harmed, having this board look over their shoulder
and have the ability not just to investigate the case they are
operating on, but to look at any information they have shared with
anybody else, or any information that they have received from anybody
can also be reviewed and traced back. I think it is bad policy to
create a board and give them that kind of power and authority and
expect them to operate in any way other than a political manner.
Rather than set up another entity with broad powers, including
subpoena power, to look over the activities of our intelligence
personnel who are fully engaged in important and dangerous activities
to protect all of us, I would rather give our support and confidence to
those in the Department of Justice who are working on our behalf every
day to protect our civil liberties. I want to allow the newly formed
President's Board on Safeguarding Americans' Civil Liberties to begin
their work. Let us not establish competing and duplicative
bureaucracies.
Our amendment will strike from section 211 those provisions expanding
the powers given to this board to the point of not allowing them to
subpoena information, including classified information, from agents
around the world and other folks involved in the intelligence
community. We need to rapidly improve our intelligence capabilities,
and that should be the focus of S. 2845. The protection of our civil
liberties is already the focus of the President and the Department of
Justice, and they have the resources to do just that.
With that, I yield to my friend from Arizona.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. KYL. Mr. President, I think the Senator from Georgia has covered
this area very well. I spoke to it yesterday. I know Senator Stevens is
here to lay down some amendments. I will take a few minutes to add one
primary thought to what the Senator from Georgia has said, and then
quickly lay down three amendments, and then I will be done.
[[Page S10224]]
Let me make this one key point about what the Senator from Georgia is
talking about. The 9/11 Commission did not recommend the board or the
many different assistant directorships and other provisions, from an
ombudsman to IGs and the like, that are included in the legislation
that is before us today. I am going to tell you what the 9/11
Commission did recommend. What it recommended is what the President has
done. What the committee did went far beyond that.
Our amendment does not eliminate all of that, but at least it cuts it
back to some extent. That is what I want to explain. Senator Durbin
discussed this privacy amendment at length yesterday. His primary point
was that the 9/11 Commission recommended this, and therefore the
committee did it, and therefore we ought to not amend it out. In fact,
one of the things he said was the 9/11 Commission recommended this
board, and following their recommendation, the legislation included it.
What exactly did the 9/11 Commission recommend? There were three
specific recommendations. They take one and a half pages out of the
entire report. I will paraphrase the first two because they are not
directly on point:
As the President determines the guidelines for information
sharing among government agencies and by those agencies with
the private sector, he should safeguard the privacy of
individuals about whom information is shared.
Fine.
Two:
The burden of proof for retaining a particular governmental
power should be on the executive, to explain (a) that the
power actually materially enhances security and (b) that
there is adequate supervision of the executive's use of the
powers. . . .
And three, and this is the key:
At this time of increased and consolidated government
authority, there should be a board within the executive
branch to oversee adherence to the guidelines we recommend
and the commitment the government makes to defend our civil
liberties.
That is it. As the Senator from Georgia said, that is exactly what
the President did in his Executive Order 13353. The Senator from
Georgia described what that Executive order does. I have a full copy of
all the entities involved in it, the instructions to that board to
bring any credible information of possible violations of law to
appropriate end, to undertake other efforts to protect the legal rights
of all Americans, including freedoms, civil liberties, and information
privacy guaranteed by Federal law, and so on.
In other words, what the 9/11 Commission recommended the President
did. What is in this bill goes far beyond that. What I said yesterday
with respect to risk aversion makes it clear that what the committee
did not only goes far beyond what the 9/11 Commission recommended but
will virtually guarantee that the risk aversion, which is a problem
today, is exacerbated tenfold so that instead of being able to collect
more intelligence and analyze that intelligence better and have people
who are not involved in group-think, who are actually willing to think
outside the box and not be intimidated by risks aversion, instead of
that, we are going to get more of that because of all the layers of
bureaucracy that is going to be looking over people's shoulders.
What the bill does is require two officers within the national
intelligence authority, two out of six, one responsible for privacy,
the other for civil rights and civil liberties. In addition, there is
an inspector general within the national intelligence authority who,
among other things, is to monitor and inform the director of violations
of civil liberties and privacy.
There is an ombudsman, which I mentioned a moment ago. There is an
independent privacy and civil liberties oversight board with extensive
investigative authorities, which the Senator from Georgia talked about,
and privacy and civil liberties officers within a long list of
executive branch departments and agencies.
So what does the amendment we have offered do? It deletes sections
126 and 127 which require officers for privacy and civil liberties
within the national intelligence authority because those already exist;
it would strike section 212 requiring privacy and civil liberties
officers within a long list of executive branch departments and
agencies; and it would modify the privacy and civil liberties oversight
board described in section 211. It does not eliminate it, so it would
be duplicative of the board the President created.
There will be an executive branch board and an outside board, but
this board would not have the authority to subpoena private individuals
or documents and reports, accounts, and other evidence of private
individuals, nor would it have the power to compel through subpoena,
for example, a department or agency to present documents.
I am not even sure, by the way, this board would have the authority
to do that under the Constitution. I am not sure that authority could
be granted. In any event, that would be a very pernicious power granted
to it when that power already exists in the ombudsman, in the inspector
general, and the other privacy officers that exist. It is duplicative
and unnecessary.
The net result of all these different entities that have the same
responsibility is to basically tell intelligence agencies: If you want
to get to the end of your career and have a pension at the end of it,
you better watch over your shoulder because there are a whole lot of
other people doing that. That is not the way to enhance our security.
Those are the additional points I wanted to make in addition to those
I made yesterday with respect to this amendment. I hope before we vote
on this amendment we will have an opportunity to present these
arguments in short form with all of the Members in attendance.
Mr. President, I indicated to the chairman of the committee what I
intend to do next. Therefore, since our procedure is to lay down one
amendment at a time, I ask unanimous consent to lay down three
amendments, and I will explain what they are.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 3926
Mr. KYL. Mr. President, the first is amendment No. 3926, which is at
the desk, and I ask that amendment be read.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Arizona [Mr. Kyl] proposes an amendment
numbered 3926.
Mr. KYL. Mr. President, I ask unanimous consent that the reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To amend the Immigration and Nationality Act to ensure that
nonimmigrant visas are not issued to individuals with connections to
terrorism or who intend to carry out terrorist activities in the United
States)
At the end, add the following new title:
TITLE IV--VISA REQUIREMENTS
SEC. 401. FINDINGS.
Congress makes the following findings:
(1) Section 214 of the Immigration and Nationality Act (8
U.S.C. 1184) governs the admission of nonimmigrants to the
United States and sets forth the process for that admission.
(2) Section 214(b) of the Immigration and Nationality Act
places the burden of proof on a visa applicant to establish
``to the satisfaction of the consular officer, at the time of
the application for a visa . . . that he is entitled to a
nonimmigrant status''.
(3) The report of the National Commission on Terrorist
Attacks Upon the United States included a recommendation that
the United States ``combine terrorist travel intelligence,
operations, and law enforcement in a strategy to intercept
terrorists . . . and constrain terrorist mobility''.
(4) Fifteen of the 19 individuals who participated in the
aircraft hijackings on September 11, 2001, were nationals of
Saudi Arabia who legally entered the United States after
securing nonimmigrant visas despite the fact that they did
not adequately meet the burden of proof required by section
214(b) of the Immigration and Nationality Act.
(5) Prior to September 11, 2001, the Department of State
allowed consular officers to approve nonimmigrant visa
applications that were incomplete, and without conducting
face-to-face interviews of many applicants.
(6) Each of the 15 individuals from Saudi Arabia who
participated in the aircraft hijackings on September 11,
2001, filed a visa application that contained inaccuracies
and omissions that should have prevented such individual from
obtaining a visa.
(7) Only one of the hijackers listed an actual address on
his visa application. The other hijackers simply wrote
answers such as ``California'', ``New York'', or ``Hotel''
when asked to provide a destination inside the United States
on the visa application.
[[Page S10225]]
(8) Only 3 of the individuals from Saudi Arabia who
participated in the aircraft hijackings on September 11,
2001, provided any information in the section of the visa
application that requests the name and address of an employer
or school in the United States.
(9) The 2002 General Accounting Office report entitled
``Border Security: Visa Process Should Be Strengthened as
Antiterrorism Tool'' outlined the written guidelines and
practices of the Department of State related to visa issuance
and stated that the Department of State allowed for
widespread discretion among consular officers in adhering to
the burden of proof requirements under section 214(b) of the
Immigration and Nationality Act.
(10) The General Accounting Office report further stated
that the ``Consular Best Practices Handbook'' of the
Department of State gave consular managers and staff the
discretion to ``waive personal appearance and interviews for
certain nonimmigrant visa applicants''.
(11) Only 2 of the 15 individuals from Saudi Arabia who
participated in the aircraft hijackings on September 11,
2001, were interviewed by Department of State consular
officers.
(12) If the Department of State had required all consular
officers to implement section 214(b) of the Immigration and
Nationality Act, conduct face-to-face interviews, and require
that visa applications be completely and accurately filled
out, those who participated in the aircraft hijackings on
September 11, 2001, may have been denied nonimmigrant visas
and the tragedy of September 11, 2001, could have been
prevented.
SEC. 402. IN PERSON INTERVIEWS OF VISA APPLICANTS.
(a) Requirement for Interviews.--Section 222 of the
Immigration and Nationality Act (8 U.S.C. 1202) is amended by
adding at the end the following new subsection:
``(h) Notwithstanding any other provision of this Act, the
Secretary of State shall require every alien applying for a
nonimmigrant visa--
``(1) who is at least 12 years of age and not more than 65
years of age to submit to an in person interview with a
consular officer unless the requirement for such interview is
waived--
``(A) by a consular official and such alien is within that
class of nonimmigrants enumerated in section 101(a)(15)(A) or
101(a)(15)(G) or is granted a diplomatic visa on a diplomatic
passport or on the equivalent thereof;
``(B) by a consular official and such alien is applying for
a visa--
``(i) not more than 12 months after the date on which the
alien's prior visa expired;
``(ii) for the classification under section 101(a)(15) for
which such prior visa was issued;
``(iii) from the consular post located in the country in
which the alien is a national; and
``(iv) the consular officer has no indication that the
alien has not complied with the immigration laws and
regulations of the United States; or
``(C) by the Secretary of State if the Secretary determines
that such waiver is--
``(i) in the national interest of the United States; or
``(ii) necessary as a result of unusual circumstances; and
``(2) notwithstanding paragraph (1), to submit to an in
person interview with a consular officer if such alien--
``(A) is not a national of the country in which the alien
is applying for a visa;
``(B) was previously refused a visa, unless such refusal
was overcome or a waiver of ineligibility has been obtained;
``(C) is listed in the Consular Lookout and Support System
(or successor system at the Department of State);
``(D) may not obtain a visa until a security advisory
opinion or other Department of State clearance is issued
unless such alien is--
``(i) within that class of nonimmigrants enumerated in
section 101(a)(15)(A) or 101(a)(15)(G); and
``(ii) not a national of a country that is officially
designated by the Secretary of State as a state sponsor of
terrorism; or
``(E) is identified as a member of a group or sector that
the Secretary of State determines--
``(i) poses a substantial risk of submitting inaccurate
information in order to obtain a visa;
``(ii) has historically had visa applications denied at a
rate that is higher than the average rate of such denials; or
``(iii) poses a security threat to the United States.''.
(b) Conduct During Interviews.--Section 222 of the
Immigration and Nationality Act (8 U.S.C. 1202), as amended
by subsection (a), is further amended by adding at the end
the following new subsection:
``(i) A consular officer who is conducting an in person
interview with an alien applying for a visa or other
documentation shall--
``(1) make every effort to conduct such interview fairly;
``(2) employ high professional standards during such
interview;
``(3) use best interviewing techniques to elicit pertinent
information to assess the alien's qualifications, including
techniques to identify any potential security concerns posed
by the alien;
``(4) provide the alien with an adequate opportunity to
present evidence establishing the accuracy of the information
in the alien's application; and
``(5) make a careful record of the interview to document
the basis for the final action on the alien's application, if
appropriate.''.
SEC. 403. VISA APPLICATION REQUIREMENTS.
Section 222(c) of the Immigration and Nationality Act (8
U.S.C. 1202(c)) is amended by inserting ``The alien shall
provide complete and accurate information in response to any
request for information contained in the application.'' after
the second sentence.
SEC. 404. EFFECTIVE DATE.
Notwithstanding section 341 or any other provision of this
Act, this title shall take effect 90 days after date of the
enactment of this Act.
Mr. KYL. Mr. President, this amendment would codify and tighten the
procedures for personal interviews of people seeking temporary visas.
Mr. President, 15 of the 19 hijackers who came here received these
kinds of visas. I think in every case but one they were not interviewed
as the State Department guidelines call for, as the statute assumes but
does not make explicit. This amendment will do that.
If there are any issues or questions about it, I would be happy to
talk with both the majority and minority. I am hopeful we can work that
out.
Amendment No. 3881
(Purpose: To protect crime victims' rights)
Mr. KYL. Mr. President, the second amendment that I ask be read is at
the desk. It is amendment No. 3881.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Arizona [Mr. Kyl] proposes an amendment
numbered 3881.
Mr. KYL. Mr. President, I ask unanimous consent that the reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The amendment is printed in the Record of Thursday, September 30,
2004, under ``Text of Amendments.'')
Mr. KYL. Mr. President, I recall in the Senate a vote of I think it
was 97 to 1 or 90-something to 1, in any event, earlier this year that
passed a proposed statute to guarantee crime victims certain rights.
That bill is pending in the House.
What this does is take those exact rights and make them applicable to
victims of terrorist attacks, terrorist crimes.
Again, I invite comments. I do not think it will be difficult. We
will work that out.
Amendment No. 3724
(Purpose: To strengthen anti-terrorism investigative tools, promote
information sharing, punish terrorist offenses, and for other purposes)
Mr. KYL. Mr. President, I am happy to go to my third amendment. This
is amendment No. 3724.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Arizona [Mr. Kyl], for himself, Mr.
Cornyn, Mr. Chambliss, and Mr. Nickles, proposes an amendment
numbered 3724.
Mr. KYL. Mr. President, I ask unanimous consent that the reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The amendment is printed in the Record of Tuesday, September 28,
2004 under ``Text of Amendments.'')
Mr. KYL. Mr. President, I rise today to discuss an important
amendment that I will offer to the 9/11 Commission bill. My amendment
is substantially the same as S. 2679, the Tools to Fight Terrorism Act,
a bill that I introduced earlier this year with several other members
of the Judiciary Committee and the Senate leadership.
Since the terrorist attacks of September 11, congressional committees
and executive agencies have conducted exhaustive reviews of our
Nation's antiterrorism safety net. We have had scores of hearings in
the House and Senate judiciary committees, a Joint Intelligence
Committee Inquiry, the
9/11 Commission hearings and report, and the Justice Department has
conducted extensive evaluations of its own antiterrorism capabilities.
These hearings have uncovered numerous flaws and gaps in our
antiterrorism system. We have found, for example, that in many cases
antiterror investigators still have less authority to access
information than do investigators of other crimes that, while serious,
pale in comparison to the threat posed by international terrorism. We
also have seen that some of the federal code's criminal offenses and
penalties are far too light, or too narrow in their scope,
[[Page S10226]]
in light of the contemporary terrorist threat. Yet, despite all of
these hearings and reports--and all of the gaps in our antiterror laws
that have been identified--Congress has enacted no major antiterror
legislation in almost three years.
This amendment addresses many of the problems that these hearings and
reports have identified over the last few years. At the outset, I would
like to emphasize 5 things about the amendment.
This amendment is not about the PATRIOT Act. This amendment does not
reauthorize or extend the PATRIOT Act. Nor does it involve any of the
supposedly ``controversial'' provisions of the PATRIOT Act.
Nothing in TFTA deals with Section 215 subpoenas, which some critics
have complained can be used to access a terrorist's records of book
withdrawals and computer use at a library.
Nothing in TFTA deals with delayed-notice searches, which some
critics deride as ``sneak and peak'' searches, even though the PATRIOT
Act only codified judicial standards that have been in place for
decades.
Nothing in TFTA deals with roving wiretaps, which some critics
mischaracterize as allowing taps of the telephones of anyone who fits a
general description. This is not true. A roving wiretap can only be
used for a particular person, though it applies to any phone that the
person uses.
Nothing in TFTA deals with National Security Letters, which allow
certain records to be subpoenaed and includes an automatic
nondisclosure requirement.
I happen to support the PATRIOT and believe that it should not be
allowed to expire. Nevertheless, with this amendment, I have deferred
that debate. This amendment does not involve the PATRIOT Act or the
debates about it. The only way that one can object to this amendment as
``controversial'' is if one is willing to define all antiterror
legislation as ``controversial.'' In a post-9/11 world, with continuing
threats to the U.S. homeland--and clear gaps in some of our antiterror
laws--such a presumption against all antiterror legislation would be
deeply irresponsible. Fixing obvious flaws in our laws, and giving
antiterror investigators the tools that they need, should not be
controversial.
Much of TFTA is also in the House of Representatives' 9/11 Commission
bill. Approximately half of the provisions of TFTA already have been
included by the House of Representatives in their bill implementing the
recommendations of the 9/11 Commission. For example, the House bill
already contains the ``Moussaoui fix,'' which allows FISA warrants for
lone-wolf terrorists--Section 412 of TFTA and section 2001 of H.R. 10.;
new offenses for hoaxes relating to terrorist crimes or the deaths of
U.S. soldiers--Section 416 of TFTA and section 2021 of H.R. 10.;
increased penalties for obstruction of justice in terrorism
investigations--Section 417 of TFTA and section 2023 of H.R. 10.;
authorization to share grand-jury information with state and local
governments--Section 423(b) of TFTA and section 2191 of H.R. 10.;
improvements to and expansion of the material-support statute--Section
424 of TFTA and section 2043 of H.R. 10.; a new offense targeted at
those who receive military-type training in terrorist camps--Section
425 of TFTA and 2042 of H.R. 10.; expansion of the weapons-of-mass-
destruction laws--Section 426 of TFTA and section 2052 of H.R. 10.; and
new laws targeted at those who aid rogue states' nuclear
proliferation--Section 427 of TFTA and section 2053 of H.R. 10.
In all these respects, my amendment is substantially identical to the
House bill. The amendment thus helps to bring the Senate bill into line
with the House bill, lessening the need for a protracted conference and
avoiding delay in enacting this legislation.
TFTA directly implements a number of the key recommendations and
addresses key concerns of the 9/11 Commission. The Report of the
September 11 Commission recommends that Congress address a number of
deficiencies in our nation's preparedness against a terrorist attack.
The underlying bill that we are considering responds to many of those
recommendations. This amendment addresses others.
The 9/11 Commission Report recommends action to address, among other
things, the threat posed by weapons of mass destruction and their
proliferation; the vulnerabilities of our seaports and mass-transit
systems; the need for improved information sharing; the need to address
terrorist finance; the threat posed by sanctuaries where terrorists
operate training camps; and the need for improved information sharing.
The report also discusses the problems created by terrorist hoaxes, and
the legal barriers encountered in the pre-September 11 investigation of
suspected hijacker Zacarias Moussaoui.
TFTA addresses every one of these
9/11 Commission recommendations.
TFTA's provisions and the matters that it address have been
extensively reviewed in congressional hearings. Every provision of TFTA
previously has either been introduced as a bill in the House or Senate
or addresses a matter that has been the subject of a committee hearing.
Collectively, the provisions of TFTA have been the subject of 9
separate hearings before House and Senate committees and have been the
subject of 4 separate committee reports. In addition, the entire bill
was reviewed at a September 13 hearing before the Senate Subcommittee
on Terrorism. At that hearing, law professor Jonathan Turley testified
that every one of TFTA's provisions would be upheld as constitutional
by the U.S. Supreme Court.
TFTA primarily consists of all or part of 11 bills currently pending
in the House and Senate. Collectively, as of July 19, 2004--the day
that TFTA was introduced--the bills included in TFTA have been pending
before Congress for 12 years, 10 months, and 28 days. No one can
contend that TFTA and its provisions have been ``rushed through'' the
Congress.
TFTA has the support of antiterrorism experts across the ideological
spectrum. The Justice Department, in its September 13 testimony on TFTA
before the Terrorism Subcommittee, expressed its strong support for the
bill. Hearing witnesses Barry Sabin--the Chief of the Criminal
Division's Counterterrorism Section--and Dan Bryant, the Assistant
Attorney General for the Office of Legal Policy--made clear in their
joint written testimony the Justice Department's view that the ``Tools
to Fight Terrorism Act of 2004 makes well-considered, urgently needed
changes to current law, and would greatly aid law enforcement and
intelligence officials in their common mission to prevent terrorist
attacks and prosecute those who would do us harm. The new tools
provided by the TFTA will prevent--terrorist--attacks and will make
America safer.''
At the Terrorism Subcommittee hearing on TFTA, support for the bill
also was voiced by George Washington University law professor Jonathan
Turley, a national-security expert who often has been critical of the
Justice Department's conduct of the war on terror. In addition to a
large number of academic works in the areas of national-security and
constitutional law, Professor Turley has represented clients in a
variety of high-profile national security cases in both criminal and
civil courts, including espionage cases in both federal and military
courts. In his testimony before my subcommittee, Professor Turley noted
that he ``also [has] been a vocal critic of some of the measures taken
after September 11th on constitutional and policy grounds.''
This is what Professor Turley had to say about the TFTA in his
testimony:
The Tools to Fight Terrorism Act of 2004 . . . contains
many beneficial changes that will increase the ability of the
government to pursue terrorists while preserving necessary
guarantees for civil liberties.
* * * * *
While we must be cautious not to legislate out of a
reflective impulse, September 11th exposed a number of
vulnerabilities and gaps in our legal and intelligence
systems that remain only partially addressed. This Act
continues to work to close those gaps and to accommodate the
interests of the Executive Branch in pursuing, prosecuting,
and (hopefully) deterring terrorists.
* * * * *
The vast majority of the[] provisions [of TFTA] are matters
that, in my view, should receive general support as balanced
and necessary measures.
* * * * *
TFTA should be a matter for general consensus rather than
division among civil libertarians and advocates of national
security interests. . . . [W]e need to recognize the
improvements in this Act and the good-faith
[[Page S10227]]
changes that have been made by members seeking a fair balance
in the legislation.
In one part of his testimony before my subcommittee, Professor Turley
also recommended a change to a part of the bill--in order to better
protect civil liberties. He recommended that, if the FBI is given
subpoena authority for terrorism investigations, it also be required to
report on the use of that authority. The amendment that I offer today
incorporates this recommendation--it would require the FBI to report to
Congress on the number of subpoenas that it issues pursuant to this new
authority, and the circumstances under which those subpoenas are
issued.
I will next discuss the provisions of this amendment--and how they
help to address the recommendations and concerns raised by the 9/11
Commission, and what others have said about these provisions.
The Moussaoui fix: The case of suspected 9/11 conspirator Zacarias
Moussaoui is discussed extensively in the 9/11 Commission Report.
Moussaoui, you will recall, is the Al Qaeda operative who was arrested
by Minneapolis FBI agents several weeks before the September 11
attacks. That summer, instructors at a Minnesota flight school became
suspicious when Moussaoui, with little apparent knowledge of flying,
asked to be taught to pilot a 747. The instructors contacted the
Minneapolis office of the FBI, which immediately suspected that
Moussaoui might be a terrorist.
The hearings conducted by the 9/11 Commission raised some agonizing
questions about the FBI's pursuit of Moussaoui. Commissioner Richard
Ben-Veniste noted the possibility that the Moussaoui investigation
could have allowed the United States to ``possibly disrupt the [9/11]
plot.'' Commissioner Bob Kerrey even suggested that with better use of
the information gleaned from Moussaoui, the ``conspiracy would have
been rolled up.'' And Commissioner Jamie Gorelick followed up by asking
whether more could have been done to allow FBI agents to ``break
through the barriers'' to their investigation of Moussaoui.
After the September 11 attacks, when FBI agents finally were allowed
to search Moussaoui, they discovered information in his belongings that
linked him to two of the actual 9/11 hijackers, and to a high-level
organizer of the attacks who later was arrested in Pakistan.
The 9/11 Commissioners are right to ask whether more could have been
done to pursue this case. The problem is that, given the state of the
law at the time, the answer to that question is probably no. In fact,
given the state of the law today, the answer to the question still
would be no.
FBI agents were blocked from searching Moussaoui because an outdated
requirement of the 1978 FISA statute. FISA sets rules for searches
conducted for intelligence investigations. As the 9/11 Commission
Report notes, the FBI field office was unable to obtain a FISA warrant
for Moussaoui because it lacked information linking him to a known
terror group. As the Report states:
Minneapolis agents ``sought a special warrant under the
Foreign Intelligence Surveillance Act to [search Moussaoui].
To do so, however, the FBI needed to demonstrate probable
cause that Moussaoui was an agent of a foreign power, a
demonstration that [is] . . . a statutory requirement for a
FISA warrant. The agent did not have sufficient information
to connect Moussaoui to a foreign power.
Current law simply does not allow searches of apparent lone-wolf
terrorists such as Zacarias Moussaoui--even if the FBI can show
probable cause to believe that the person is involved in international
terrorism.
My amendment would correct this problem. Section 412 gives the FBI
clear authority to conduct a search or surveillance under FISA when it
has probable cause to believe that the target is engaged in or
preparing for international terrorism. This new authority would not
require FBI to also link the suspect to a particular terrorist group.
It is inevitable that Islamist terrorists will try again to attack
the United States. As agonizing as it is today to review why we did not
prevent the September 11 attacks, imagine if it happened again. Imagine
if another attack occurred--and another review commission found that
critical FBI investigations again were undermined by the lack of FISA
authority to monitor and search lone-wolf terrorists. We simply cannot
let that happen. We must ensure that today's FBI agents are not
hampered by the same unnecessary barriers that hurt the efforts of the
Minneapolis agents in August of 2001.
Process: A bill that is substantially identical to section 412 first
was introduced in the Senate by Senator Schumer and me on June 5, 2002.
We reintroduced the same provision in the 108th Congress. That bill--S.
113--was unanimously reported by the Judiciary Committee in March 2003,
and was approved by the full Senate by a vote of 90-4 in May 2003. A
substantially identical provision also has been included in a House
bill introduced by Chairmen Sensenbrenner and Goss--and is included in
the House 9/11 Commission bill as section 2001. The Moussaoui fix also
has been the subject of two hearings--one in the Senate Intelligence
Committee on July 31, 2002, and one in the House Crime Subcommittee on
May 18, 2004.
Section 412 is substantially identical to section 2001 of the House
of Representatives' 9/11 Commission bill.
Weapons of Mass Destruction and Shoulder-Fired Antiaircraft Rockets:
The 9/11 Commission Report notes that ``al Qaeda has tried to acquire
or make weapons of mass destruction for at least ten years. . . .
Preventing the proliferation of these weapons warrants a maximum
effort.'' The Report also discusses ``Pakistan's illicit trade and
[the] nuclear smuggling networks of Pakistani nuclear scientist A.Q.
Khan.'' The Report recommends that the U.S. work with other nations
``to develop laws and an international legal regime with universal
jurisdiction to enable the capture, interdiction, and prosecution of
such smugglers by any state in the world.''
Sections 426 and 427 and subtitle B of my amendment all are directed
at preventing terrorists from gaining access to weapons of mass
destruction. Section 427 makes it a crime to participate in or provide
material support to a nuclear-weapons program, or other weapons-of-
mass-destruction program, of a designated terrorist organization or
state sponsor of terrorism. There would be extraterritorial
jurisdiction for an offense under this provision. Section 426 would
amend the federal weapons-of-mass-destruction statute to cover attacks
on property and would broaden the bases for federal jurisdiction under
that statute. Subtitle B is designed to deter the unlawful possession
and use of atomic weapons, radiological dispersal devices, shoulder-
fired rockets, and the variola virus (the causative agent of smallpox).
In his testimony about these provisions before the Terrorism
Subcommittee, Professor Jonathan Turley had this to say:
[Section 426, the WMD-statute provision] would close
current loopholes in the interest of national security and
does not materially affect civil liberty interests.
[Section 427] would criminalize the participation in
programs involving special nuclear material, atomic weapons,
or weapons of mass destruction outside of the United States.
This new crime with extraterritorial jurisdiction is an
obvious response to recent threats identified by this country
and other allies like Pakistan. The obvious value of such a
law would be hard to overstate. . . . It is important for the
purposes of our extraterritorial enforcement efforts to have
a specific crime on the books to address this form of
misconduct.
[With regard to subtitle B--the new shoulder-fired rockets
proscription], [g]iven the enormous threats to our country
from such weapons, these increased penalties are manifestly
reasonable. . . . While it is certainly possible that a
defendant could be in possession of a MANPADS as part of arms
trafficking or some other motive than terrorism, this is
clearly one of the most likely forms of terrorist conduct.
Process: Sections 426 and 427 of my amendment are identical to
sections 2052 and 2053 of the House 9/11 Commission bill. These--and
the new penalties for possession of shoulder-fired rockets and other
dangerous weapons--also are identical to legislation that Senator
Cornyn introduced earlier this year.
Mass-Transportation and Seaport Security: The 9/11 Commission Report
recommends that the U.S. government ``identify and evaluate the
transportation assets that need to be protected, set risk-based
priorities for defending them, select the most practical and cost-
effective ways of doing so, and then develop a plan . . . to implement
the effort.'' While noting the continuing threat to aviation, the
Report
[[Page S10228]]
also emphasizes that ``[o]pportunities to do harm are as great, or
greater, in maritime or surface transportation''--and that ``railroads
and mass transit'' are particularly difficult to protect against
terrorism.
Subtitles C and D of my amendment address the unique challenges of
providing security on mass-transportation systems and at seaports by
updating current criminal offenses and creating new offenses that are
tailored to these venues.
Here is what Professor Turley had to say about the seaport-security
provision during the hearing on TFTA:
[Subtitle D] addresses a weakness in our domestic security
system that has been repeatedly criticized as perhaps the
country's single greatest threat: seaport security. While
much remains to be done in terms of real security
improvements at seaports, [subtitle D] represents one of the
most significant legal reforms in this area.
* * * * *
While many of [the acts of violence proscribed by TFTA] can
be currently prosecuted under other laws, [subtitle D] would
create a tailored series of offenses affecting seaports and
seagoing vessels. For example, one important addition would
be a crime for knowingly transporting dangerous material for
a terrorist operation or a terrorist. This new crime in
Section [455] will serve to increase the expected deterrent
for transporters. Currently, a transporter can be prosecuted
as a co-conspirator as well as charged with false statements
in many cases. However, Section [455] would define a crime
specifically with this type of opportunistic conduct in mind.
For a prosecutor, such a tailored law makes a case more
compelling for a jury.
* * * * *
These laws give the Executive Branch more flexibility and
options in dealing with misconduct at our seaports. It could
not be more timely or more justified given recent warnings
from security experts.
Process: Subtitles C and D are identical to bills introduced this
year by Senators Sessions and Biden, respectively. The Sessions bill
was the subject of a hearing before the Senate Judiciary Committee on
April 8, 2004. The Senate Subcommittee on Terrorism held a hearing on
the need to improve security at U.S. seaports on January 27 of this
year.
Information Sharing: The 9/11 Commission Report recommends that
``information procedures should provide incentives for sharing, to
restore a better balance between security and shared knowledge.'' The
Report also recommends that the President ``coordinate the resolution
of the legal, policy, and technical issues across agencies to create a
`trusted information network' ''--and that this information-sharing
network and the FBI ``build a reciprocal relationship, in which state
and local governments understand what information they are looking for
and, in return, receive some of the information being developed.''
Sections 422 and 423 of my amendment act on these recommendations by
improving the FBI's ability to share intelligence information that has
been obtained under existing authorities. Section 422 creates a uniform
standard under which the FBI would disseminate intelligence information
to other federal agencies. Under current law, several different
statutes govern the circumstances under which the FBI may disseminate
intelligence information to other federal agencies. Some of these
statutes anomalously place restrictions on information sharing with
other federal agencies that are greater than the restrictions applied
to non-federal agencies. This section allows dissemination of
intelligence information under uniform guidelines developed by the
Attorney General.
Section 423 amends current law to make clear that national-security-
related information may be shared with relevant Federal, State, and
local officials regardless of whether the investigation that produced
the information is characterized as a ``criminal'' investigation or a
``national security'' investigation. This section also would authorize
the sharing of grand-jury information with appropriate state and local
authorities.
I do not think one can overstate the importance of information
sharing--of tearing down the walls that prevent different parts of the
government from exchanging intelligence and working together in the war
on terror.
A graphic illustration of the importance of tearing down the legal
walls between different terror investigators is provided by another
pre-September 11 investigation. Like the Moussaoui case, this
investigation also came tantalizing close to substantially disrupting
or even stopping the 9/11 plot--and also ultimately was blocked by a
flaw in our antiterror laws. The investigation that I am talking about
involved Khalid Al Midhar, one of the suicide hijackers of American
Airlines Flight 77, which was crashed into the Pentagon, killing 58
passengers and crew and 125 people on the ground.
An account of the investigation of Midhar is provided in the 9/11
Commission's Staff Statement No. 10. That statement notes as follows:
During the summer of 2001 [an FBI official] . . . found [a]
cable reporting that Khalid Al Mihdhar had a visa to the
United States. A week later she found the cable reporting
that Mihdhar's visa application--what was later discovered to
be his first application--listed New York as his destination.
. . . The FBI official grasped the significance of this
information.
The FBI official and an FBI analyst working the case
promptly met with an INS representative at FBI Headquarters.
On August 22 INS told them that Mihdhar had entered the
United States on January 15, 2000, and again on July 4, 2001.
. . . The FBI agents decided that if Mihdhar was in the
United States, he should be found.
These alert agents immediately grasped the danger that Khalid Al
Midhar posed to the United States--and immediately initiated an effort
to track him down. Unfortunately, at the time, the law was not on their
side. The Joint Inquiry Report of the House and Senate Intelligence
Committees describes what happened next:
Even in late August 2001, when the CIA told the FBI, State,
INS, and Customs that Khalid al-Mihdhar, Nawaf al-Hazmi, and
two other ``Bin Laden-related individuals'' were in the
United States, FBI Headquarters refused to accede to the New
York field office recommendation that a criminal
investigation be opened, which might allow greater
resources to be dedicated to the search for the future
hijackers. . . . FBI attorneys took the position that
criminal investigators ``CAN NOT'' (emphasis original) be
involved and that criminal information discovered in the
intelligence case would be ``passed over the wall''
according to proper procedures. An agent in the FBI's New
York field office responded by e-mail, saying: ``Whatever
has happened to this, someday someone will die and, wall
or not, the public will not understand why we were not
more effective in throwing every resource we had at
certain problems.''
The 9/11 Commission staff report assesses the ultimate impact of
these legal barriers:
Many witnesses have suggested that even if Mihdhar had been
found, there was nothing the agents could have done except
follow him onto the planes. We believe this is incorrect.
Both Hazmi and Mihdhar could have been held for immigration
violations or as material witnesses in the Cole bombing case.
Investigation or interrogation of these individuals, and
their travel and financial activities, also may have yielded
evidence of connections to other participants in the 9/11
plot. In any case, the opportunity did not arise.
Congress must do what it can now to make sure that something like
this does not happen again--that arbitrary, seemingly minor
bureaucratic barriers are not allowed to undermine our best leads
toward uncovering an attack on the United States. Sections 422 and 423
of my amendment would do just that.
Process: Subsection (b) of section 423 is included in H.R. 10, the
House of Representatives' 9/11 Commission bill. Sections 422 and 423
both are identical to a bill that has been introduced by Senator
Chambliss.
Subpoena Authority: The bill that the Senate is now considering
already authorizes subpoena authority. Section 141(f)(5) of the bill
authorizes the National Intelligence Authority's Inspector General to
issue subpoenas for his investigations. It also authorizes the
Inspector to go to federal court to enforce his subpoenas if a
recipient refuses to comply with them. Section 211(g) of the bill also
authorizes the new Privacy and Civil Liberties Board to issue
administrative subpoenas and to seek their judicial enforcement.
I agree with the bill's judgment that subpoena authority can be an
important investigative tool. For this reason, section 415 of my
amendment authorizes the Attorney General to issue judicially
enforceable subpoenas in an ``investigation of a Federal crime of
terrorism.''
Rachel Brand, the Principal Deputy Assistant Attorney General for the
Justice Department's Office of Legal Policy, described the need for
subpoena authority in terrorism investigations
[[Page S10229]]
in a hearing before my subcommittee on June 22 of this year. Ms. Brand
noted:
Although grand jury subpoenas are a sufficient tool in many
investigations, there are circumstances in which an
administrative subpoena would save precious minutes or hours
in a terrorism investigation. For example, the ability to use
an administrative subpoena will eliminate delays caused by
factors such as the unavailability of an Assistant United
States Attorney to immediately issue a grand-jury subpoena,
especially in rural areas; the time it takes to contact an
Assistant United States Attorney in the context of a time-
sensitive investigation; the lack of a grand jury sitting at
the moment the documents are needed (under federal law, the
``return date'' for a grand-jury subpoena must be on a day
the grand jury is sitting); or the absence of an empaneled
grand jury in the judicial district where the investigation
is taking place, a rare circumstance that would prevent a
grand-jury subpoena from being issued at all.
To appreciate the potential importance of an administrative
subpoena in a terrorism case, consider the following
hypothetical example. On Friday afternoon, counter-terrorism
investigators learn that members of an al Qaeda cell have
purchased bomb-making materials from a chemical company. They
want to obtain records relating to the purchase that may
reveal what chemicals the terrorists bought, as well as
delivery records that might reveal the terrorists' location.
Investigators reach a prosecutor, who issues a grand jury
subpoena for those records. But because the grand jury is not
scheduled to meet again until Monday morning and the
recipient of a grand jury subpoena is not required to produce
the records until the next time the grand jury meets,
investigators may not be able to obtain the information for
three days during which time the al Qaeda cell may have
executed its plan. If investigators had the authority to
issue an administrative subpoena, they could obtain the
records immediately and neutralize the cell.
A recent paper issued by the Republican Policy Committee points out
how anomalous it is that the FBI does not have subpoena authority for
terrorism investigations. As that report notes, ``[c]urrent provisions
of federal law grant [administrative-subpoena] authority to most
government departments and agencies.'' Moreover, ``[t]hese authorities
are not restricted to high-profile agencies conducting life-or-death
investigations.'' As the paper notes, federal law currently authorizes
postal inspectors to issue administrative subpoenas when investigating
any ``criminal matters related to the Postal Service and the mails.''
Similarly, the Small Business Administration is empowered to use
administrative subpoenas to investigate criminal activities under the
Small Business Act, such as embezzlement and fraud. The Bureau of
Immigration and Customs Enforcement has administrative-subpoena
authority for investigations of violations of the immigration laws. And
DEA agents have subpoena authority for criminal investigations under
the Controlled Substances Act.
As the RPC Policy Paper concludes, ``One can hardly contend that
federal investigators should be able to issue administrative subpoenas
to investigate Mohammed Atta if they suspect that he broke into a
mailbox--but should not have the same authority if they suspect he is
plotting to fly airplanes into buildings.''
Professor Jonathan Turley also commented on TFTA's subpoenas
provision in his testimony before the Terrorism Subcommittee. He
stated:
There is little reason to believe that a [Judicially
Enforceable Terrorism Subpoena] provision would be
unconstitutional.
* * * * *
Much is made [by some critics] of the shift from a grand-
jury subpoena to a JETS system. However, the term grand-jury
subpoena is misleading in that it is not issued by a grand
jury but a federal prosecutor. ``[A] grand jury subpoena gets
its name from the intended use of the . . . evidence, not
from the source of its issuance.'' Doe v. DiGenova, 779 F.2d
74, 80 n.11 (D.C. Cir. 1985). Administrative subpoenas are
currently used in dozens of areas and they have been upheld
by the United States Supreme Court. It is extremely rare for
a federal prosecutor to deny such a request from the FBI and
the elimination of an Assistant United States Attorney from
the process is not likely to produce a significant change in
the level of review.
Professor Turley also added: ``I would strongly encourage the Senate
to couple any JETS provision with a close oversight process to monitor
the number and nature of subpoenas issued under the new law.'' As I
previously noted, the amendment that I offer today implements this
recommendation: it includes a requirement that the FBI report on the
number of subpoenas that it employs under the new authority and the
circumstances of their issue.
Terrorist Training Camps: The 9/11 Commission Report recommends that
the U.S. government ``identify and prioritize actual or potential
terrorist sanctuaries. For each, it should have a realistic strategy to
keep possible terrorists insecure and on the run, using all elements of
national power.'' The Report explains that such sanctuaries pose a
threat because they provide terrorist groups with the ``opportunity and
space to recruit, train, and select operatives''--and that the
hospitable environment in the United States also allowed this country
to be used for terrorist training and exercises.
Section 425 of my amendment would make it a federal offense to
knowingly receive military-type training from or on behalf of a
designated foreign terrorist organization. This provision applies
extraterritorially to U.S. nationals, permanent residents, stateless
persons whose habitual residence is the United States, or a person who
is brought into or found in the United States.
The Justice Department testified in favor of this provision at the
Terrorism Subcommittee's hearing on the TFTA. The joint statement of
Messrs. Sabin and Bryant notes that:
It is critical that the United States stem the flow of
recruits to terrorist training camps. A danger is posed to
the vital foreign policy interests and national security of
the United States whenever a person knowingly receives
military-type training from a designated terrorist
organization or persons acting on its behalf. Such an
individual stands ready to further the malicious intent of
the terrorist organization through terrorist activity that
threatens the security of United States nationals or the
national security of the United States. Moreover, a trainee's
mere participation in a terrorist organization's training
camp benefits the organization as a whole. For example, a
trainee's participation in group drills at a training camp
helps to improve both the skills of his fellow trainees and
the efficacy of his instructors' training methods.
Additionally, by attending a terrorist training camp, an
individual lends critical moral support to other trainees and
the organization as a whole, support that is essential to the
health and vitality of the organization.
Professor Turley had the following to say about this provision of
TFTA in his testimony before the Terrorism Subcommittee:
This proposal would fill a gap in our laws revealed by
recent cases, like that of Jose Padilla, where citizens have
trained at terrorist camps. . . . The proposed crime has
been narrowly tailored to require a clear knowledge element
as well as a reasonable definition of military-type training.
The United States has an obvious interest in criminalizing
such conduct and to deter citizens who are contemplating such
training. In my view, it raises no legitimate issue of free
association or free speech given the criminal nature of the
organization. Most importantly, given the use of these camps
to recruit and indoctrinate such citizens as Padilla and John
Walker Lindh, this new criminal offense is responsive to a
clear and present danger for the country.
Section 425 of my amendment is identical to section 2042 of the House
of Representatives' 9/11 Commission bill.
Terrorist Hoaxes: The 9/11 Commission Report notes at several places
that false information about terrorist threats influenced key events on
September 11, 2001: possibly ``a false report of a third plane
approaching'' influenced fire crews' decisions on the ground in New
York City on that day, and crisis managers were forced to sort out ``a
number of unnerving false alarms'' immediately after the attacks.
The Justice Department also has commented on the harm caused by false
information and terrorist hoaxes. In its testimony on the TFTA, the
Department noted:
Since September 11, hoaxes have seriously disrupted
people's lives and needlessly diverted law-enforcement and
emergency-services resources. In the wake of the anthrax
attacks in the fall of 2001, for example, a number of
individuals mailed unidentified white powder, intending for
the recipient to believe it was anthrax. Many people were
inconvenienced, and emergency responders were forced to waste
a great deal of time and effort. Similarly, in a time when
those in uniform are making tremendous sacrifices for the
country, several people have received hoax phone calls
reporting the death of a loved one serving in Iraq or
Afghanistan.
Section 416 of my amendment is intended to reduce the flow of false
information about terrorist or national-security-related events by
making it a criminal offense to knowingly convey false information
about terrorist
[[Page S10230]]
crimes or the death or injury of a U.S. soldier during war--if such
misinformation is conveyed under circumstances where it may reasonably
be believed.
Professor Turley, at the Terrorism Subcommittee hearing on TFTA,
commented that:
This new provision would create a serious deterrent to a
type of misconduct that routinely places the lives of
emergency personnel at risk and costs millions of dollars in
unrecouped costs for the federal and state governments. Since
a terrorist seeks first and foremost to terrorize, there is
precious [little] difference between a hoaxster and a
terrorist when the former seeks to shut down a business or
a community with a fake threat. . . . This provision
responds to the increase in this form of insidious
misconduct and correctly defines it as criminal conduct.
Process: A bill that is substantially identical to section 416 first
was introduced almost three years ago by Representative Lamar Smith on
November 11, 2001. That proposal was the subject of a hearing before
the House Crime Subcommittee on November 7, 2001. The bill was reported
by the House Judiciary Committee on November 29, 2001, which issued
Report No. 107-306 for the bill. The Smith bill was then unanimously
approved by the House of Representatives on December 12, 2001.
Representative Smith reintroduced the bill in this Congress. The House
Crime Subcommittee held another hearing on the proposal on July 10,
2003, and the Judiciary Committee issued Report No. 108-505 for the new
Smith bill. Also, Senator Hatch has introduced a version of this
proposal in the Senate.
Section 416 of my amendment is nearly identical to section 2022 of
the House of Representatives' 9/11 Commission bill.
Financial and Material Support to Terrorists: The 9/11 Commission
Report states in its recommendations that ``vigorous efforts to track
terrorist financing must remain front and center in U.S.
counterterrorism efforts.''
Subtitle E of my amendment, the ``Combating Money Laundering and
Terrorist Financing Act,'' expands the list of predicate offenses for
money laundering to include burglary and embezzlement, operation of an
illegal money-transmitting business, and offenses related to alien
smuggling, child exploitation, and obscenity that were enacted or
amended by the Protect Act. It also amends current law to prohibit
concealing having provided financing while knowing that it has been or
will be provided to terrorists.
Section 424 of my amendment expands existing prohibitions on
providing material support to terrorist groups. This provision makes it
a crime to provide material support to any crime of international or
domestic terrorism, and expands federal jurisdiction over such
offenses.
The Justice Department emphasized the importance of the material-
support statute in its joint statement on the TFTA before the Terrorism
Subcommittee:
The TFTA . . . improves current law by clarifying several
aspects of the material support statutes. This is another key
tool in preventing terrorism. As the Department of Justice
has previously indicated, ``a key element of the Department's
strategy for winning the war against terrorism has been to
use the material support statutes to prosecute aggressively
those individuals who supply terrorists with the support and
resources they need to survive . . . . The Department seeks
to identify and apprehend terrorists before they can carry
out their plans, and the material support statutes are a
valuable tool for prosecutors seeking to bring charges
against and incapacitate terrorists before they are able to
cause death and destruction.''
The 9/11 Commission Report also emphasizes the need ``to ensure
protection of civil liberties'' during the war on terrorism. In order
to address concerns raised by some courts and litigants about the
chilling effect of the current material-support statute, section 424 of
the amendment clarifies what it means to provide ``training,''
``personnel,'' and ``expert advice or assistance'' to a terrorist
group.
Professor Turley, in his Terrorism Subcommittee testimony on TFTA,
said of section 424 that ``[t]his proposal would actually improve the
current federal law by correcting gaps and ambiguities that have led to
recent judicial reversals. In that sense, the proposal can be viewed as
a slight benefit to civil liberties by removing a dangerous level of
ambiguity in the law.''
A provision identical to section 424 of my amendment appears in the
House of Representatives 9/11 Commission bill as section 2043.
Presumption of No Bail for Terrorists: Section 413 of my amendment
would add terrorists to the category of criminal defendants for whom
there is a presumption of no bail. Under current law, a criminal
suspect will be denied bail in federal court if the government shows
that there is a serious risk that the suspect will flee, obstruct
justice, or injure or threaten a witness or juror. The judge must
presume this showing is present if the suspect is charged with a crime
of violence, a drug crime carrying a potential sentence of ten years or
more, any crime that carries a potential sentence of life or the death
penalty, or the suspect previously has been convicted of two or more
such offenses. Section 413 would add terrorist offenses to this list--
judges would be required to presume that facts requiring a denial of
bail are present. This is only a presumption--the terror suspect still
could attempt to show that he is not a flight risk or potential threat
to jurors or witnesses.
The Justice Department testified as to the importance of this
provision at the Terrorism Subcommittee hearing on TFTA:
Current law provides that federal defendants who are
accused of serious crimes, including many drug offenses and
violent crimes, are presumptively denied pretrial release
under 18 U.S.C. Sec. 3142(e). But the law does not apply
this presumption to those charged with many terrorism
offenses. To presumptively detain suspected drug traffickers
and violent criminals before trial, but not suspected
terrorists, defies common sense.
* * * * *
This omission has presented authorities real obstacles to
prosecuting the war on terrorism, as Michael Battle, U.S.
Attorney for the Western District of New York, testified
before this subcommittee on June 22. In the recent
``Lackawanna Six'' terrorism case in his district,
prosecutors moved for pre-trial detention of the defendants,
most of whom were charged with (and ultimately pled guilty
to) providing material support to al Qaeda. It was expected
that the defendants would oppose the motion. What followed
was not expected, however. Because the law does not allow
presumptive pre-trial detention in terrorism cases,
prosecutors had to participate and prevail in a nearly three-
week hearing on the issue of detention, and were forced to
disclose a substantial amount of their evidence against the
defendants prematurely, at a time when the investigation was
still ongoing. Moreover, the presiding magistrate judge did
in fact authorize the release of one defendant, who, it was
later learned, had lied to the FBI about the fact that he had
met with Osama bin Laden in Afghanistan.
The Lackawanna Six case illustrates the real-life problems
the absence of presumptive pre-trial detention has posed to
law enforcement. But this shortcoming in the law has also
enabled terrorists to flee from justice altogether. For
example, a Hezbollah supporter was charged long ago with
providing material support to that terrorist organization.
Following his release on bail, he fled the country.
The suspect described above eventually was recaptured by the United
States 6 years after his escape. During that time, he was not a
participant in a terrorist attack against the United States--but he
could have been.
Jonathan Turley also commented on section 413 in his testimony at the
Terrorism Subcommittee hearing on TFTA. He stated:
[Section 413] would create a presumption against bail for
accused terrorists. Under this amendment, such a presumption
could be rebutted by the accused, but the court would begin
with a presumption that the accused represents a risk of
flight or danger to society. This has been opposed by various
groups, who point to the various terrorist cases where
charges were dismissed or rejected, including the recent
Detroit scandal where prosecutorial abuse was strongly
condemned by the Court. I do not share the opposition to this
provision because I believe that, while there have been
abuses in the investigation and prosecution of terrorism
cases, the proposed change sought by the Justice Department
is neither unconstitutional nor unreasonable.
* * * * *
This proposal would not impose a categorical denial of bail
but a presumption against bail in terrorism cases. Congress
has a clearly reasonable basis for distinguishing terrorism
from other crimes in such a presumption. In my view, this
would be clearly constitutional.
While I have been critical of the policies of Attorney
General John Ashcroft, I do not share the view of some of my
colleagues in the civil liberties community in opposition to
this change. There is currently a presumption against
pretrial release for a variety of crimes in 18 U.S.C. Sec.
3142(e), including major drug crimes. It seems quite bizarre
to have such a presumption in drug cases but not terrorism
cases.
Use of FISA in immigration proceedings: The 9/11 Commission Report
[[Page S10231]]
recommends that the United States ``combine terrorist travel
intelligence, operations, and law enforcement in a strategy to
intercept terrorists, find terrorist travel facilitators, and constrain
terrorist mobility.'' The report also states that ``[t]he challenge for
national security in an age of terrorism is to prevent the very few
people who may pose overwhelming risks from entering or remaining in
the United States undetected.''
Section 419 of my amendment is designed to allow the federal
government to more readily employ intelligence information to keep
suspected terrorists out of the United States. The Foreign Intelligence
Surveillance Act requires the government to provide notice when
information obtained through FISA is used in any federal proceeding. In
1996, Congress created an exception to this requirement for alien-
terrorist removal proceedings. This section would extend this exception
to all immigration proceedings--the government would be able to use
FISA information to deny an alien a particular immigration benefit, to
bar his reentry, or to detain him on immigration charges, all without
revealing that the information was obtained through FISA. Such
authority would be useful because in many instances, notice that
information was obtained through FISA would disclose to the alien that
he or his associates have been the target of a FISA investigation--a
disclosure that effectively would compromise an ongoing investigation.
Professor Turley addressed this provision in his testimony before the
Terrorism Subcommittee on the TFTA:
This provision would change the current system in which the
government must notify parties in an immigration case that it
is using information obtained through FISA. . . .
Section [419] was criticized recently by the American
Immigration Lawyers Association (AILA) group as
``constitutionally dubious.'' Despite my respect for AILA and
its work, I must disagree with the suggestion that this
provision might be found unconstitutional. The government is
allowed to use secret evidence in such proceedings and the
only change here is the identification of the source of such
secret information. . . . This provision would, in my view,
pass constitutional muster.
. . . [T]he true legal change produced by Section [419] is
marginal. There are good-faith reasons for the government's
reluctance to acknowledge an on-going FISA investigation.
While I oppose FISA generally, this does not appear an
unreasonable request from the Justice Department.
Other provisions: lifetime post-release supervision, obstruction of
justice, denial of benefits. In his testimony on TFTA before the
Terrorism Subcommittee, Professor Turley also had the following to say
about these provisions of TFTA:
[Section 414] This provision would make terrorists eligible
for lifetime post-release supervision. Under the current law,
certain individuals convicted of terrorist crimes are not
eligible for lifetime post-release supervision because the
underlying offense did not create a foreseeable risk of death
or serious injury. The Justice Department has objected to the
current language of 18 U.S.C. Sec. 3583 as too restrictive
since there are many individuals who knowingly support
terrorist activities, but do so through less overtly violent
means, such as computer-related crimes. The purpose is only
to make such individuals eligible for lifetime supervision.
This proposal seems facially reasonable in light of the
sophisticated web of supporting co-conspirators working with
groups like Al-Qaeda.
[Section 417] This provision increases the penalties for
obstruction of justice in terrorism cases. The Justice
Department believes that the increase from 5 to 10 years in
terrorism cases is needed to show the added severity of such
misconduct in this context. For the purpose of full
disclosure, I have represented defendants charged under false
statement provisions like 18 U.S.C. Sec. 1001 and I have been
a critic of the abusive use of false statement charges by the
Justice Department in non-terrorist cases. However, seeking
higher penalties for obstruction in the area of terrorism is
not an unreasonable demand and certainly would not raise any
immediate constitutional problems.
[Section 421] This provision would deny federal benefits to
convicted terrorists. The denial of such benefits is
currently allowed under the Controlled Substances Act and
makes obvious sense given the nature of these crimes.
In conclusion, I would simply remind my colleagues that every
provision of TFTA has been fully explored in congressional committee
hearings--the individual provisions of the bill have been the subject
of nine separate hearings--and every provision of TFTA has the full
support of the Department of Justice. These provisions address obvious
and in some cases glaring gaps in our nation's antiterrorism safety
net. We cannot allow these problems to continue to go unaddressed.
I urge my colleagues to support the amendment.
Mr. President, this is a controversial amendment. It is sometimes
called the Tools for Terrorism Act. There are 20 specific provisions of
this amendment. Some of them are very uncontroversial, some have become
controversial. What I am proposing to do by laying this amendment down
is begin a dialog with members of both the majority and the minority to
see which of them we can agree to be adopted.
This was the most efficient way to do that rather than independently
offering each one seriatim. But it is my intention to work out a
unanimous consent agreement with both sides that would result in as
much of this amendment as possible, from my perspective, but in any
event, as much as we can agree upon, being agreed to without any
further debate or votes if they are not necessary.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Mr. President, I very much appreciate the cooperation of
the Senator from Arizona. We would be happy to work with him on the
three amendments that he has laid down.
I do want to debate further the other amendment, his first amendment
on privacy and civil liberties oversight. That is a key amendment, and
I do want to engage on that. However, I know that Senator Stevens is
under a tight timeframe for this afternoon. I would be willing to delay
my response to the debate of the two Senators on my side of the aisle
until after Senator Stevens has had an opportunity to lay down his
amendments.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. LIEBERMAN. I thank the Chair. Mr. President, I join Senator
Collins in thanking Senator Kyl and Senator Chambliss for offering the
amendments. I thank Senator Kyl particularly for the spirit in which he
offered--and some of the amendments we will be able to reach agreement
on--the last amendment--the so-called tools for terrorists?
Mr. KYL. Yes.
Mr. LIEBERMAN. Tools to fight terrorism, as I would call it. As you
said, parts of it are very controversial. As an individual Senator,
probably a lot of it I would support, but I particularly appreciate the
Senator's conclusion here because neither the Senator from Arizona nor
I want to come into a situation where we are getting this bill's fate
swept up in controversial amendments.
I look forward to working with the Senator and members of both
caucuses to pick out the parts that there is general agreement on, and
I believe there will be a good number of those, and make the bill
stronger and then get it moving to adoption. I thank the Chair.
The PRESIDING OFFICER. The Senator from Alaska
Mr. STEVENS. Mr. President, I have a series of requests for
cosponsors of amendments that I have introduced. I ask unanimous
consent that they be printed in the Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendments Nos. 3826, 3827, 3829 and 3840, En Bloc
Mr. STEVENS. Mr. President, I call up the four amendments at the
desk. I ask unanimous consent that each of them be read and then set
aside so we can go through calling up the four of them, and then I will
make some comments about them. They are amendments Nos. 3826, 3827,
3829 and 3840.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will report.
The legislative clerk read as follows:
The Senator from Alaska [Mr. Stevens], for himself, Mr.
Warner, and Mr. Inouye, proposes an amendment numbered 3826.
The Senator from Alaska [Mr. Stevens] proposes an amendment
numbered 3827.
The Senator from Alaska [Mr. Stevens], for himself, Mr.
Warner, and Mr. Inouye, proposes an amendment numbered 3829.
The Senator from Alaska [Mr. Stevens], for himself, Mr.
Warner, Mr. Inouye, and Mr. Burns, proposes an amendment
numbered 3840.
The amendments are as follows:
[[Page S10232]]
amendment no. 3826
(Purpose: To modify the duties of the Director of the National
Counterterrorism Center as the principal advisor to the President on
counterterrorism matters)
On page 84, beginning on line 8, strike ``joint
operations'' and insert ``strategic planning''.
amendment no. 3827
(Purpose: To strike section 206, relating to information sharing)
On page 130, strike line 20 and all that follows through
page 153, line 2.
amendment no. 3829
(Purpose: To amend the effective date provision)
On page 212, strike lines 3 through 6, and insert the
following:
(a) In General.--This Act and the amendments made by this
Act shall take effect one year after the date of the
enactment of this Act, except that--
(1) subsections (a) and (b) of section 102 (relating to the
establishment of the position of National Intelligence
Director) shall take effect 90 days after the date of the
enactment of this Act, and the President shall prescribe the
duties of the position of National Intelligence Director that
are to apply before subsections (d) and (e) of such section
take effect;
(2) section 143 (relating to the establishment and
operation of the National Counterterrorism Center) shall take
effect 90 days after the date of the enactment of this Act,
and the National Counterterrorism Center shall be operated
without reference to its status under section 143(a) as an
entity within the National Intelligence Authority until the
National Intelligence Authority is established when section
101 takes effect;
(3) section 331 and the amendments made by such section
shall take effect 90 days after the date of the enactment of
this Act; and
(4) a provision of this Act shall take effect on any
earlier date that the President specifies for such provision
in an exercise of the authority provided in subsection (b).
amendment no. 3840
(Purpose: To strike the fiscal and acquisition authorities of the
National Intelligence Authority)
On page 109, strike line 4 and all that follows through
page 113, line 3.
On page 113, line 4, strike ``163.'' and insert ``162.''.
On page 114, line 1, strike ``164.'' and insert ``163.''.
Amendment No. 3826
Mr. STEVENS. Mr. President, I will address the amendment first in
order, amendment No. 3826. This is offered to clarify the duties and
responsibilities of the Director of the National Counterterrorism
Center. The bill currently states that the Director of the National
Counterterrorism Center shall serve as the principal adviser to the
President and the national intelligence director on joint operations
related to counterterrorism.
This amendment strikes ``joint operations'' and inserts in lieu
thereof ``strategic planning.'' The bill under consideration creates
the National Counterterrorism Center to develop and unify strategy, to
develop interagency terrorism plans, not to conduct joint operations.
I call attention to page 83, lines 3, 9, and 10, of the committee
print.
In support of the bill under consideration, this amendment clarifies
the role of the Director of the National Counterterrorism Center to
support planning and not conduct operations.
It is the intent of this amendment to make it perfectly clear that
the national counterterrorism director would have no control over the
conduct of joint operations. Having the intelligence director to report
directly to the President would be inappropriate. Furthermore, the
Secretary of Defense is the principal adviser to the President on
military operations. As currently drafted, the director of the National
Counterterrorism Center shall serve as the principal adviser to the
President on joint operations. This is very unclear. Does it include
military operations? Our amendment eliminates that ambiguity by
striking ``joint operation'' and inserting ``strategic planning,''
which would appear to be consistent with the amendment adopted by the
committee in the markup to change the directorate of operations to
directorate of planning within the National Counterterrorism Center. I
would hope that the manager of the bill would give this amendment
serious consideration because I think it clears up a defect in the bill
as it is presently written.
Amendment No. 3829
Now I will address amendment No. 3829. This amendment would delay the
implementation of the bill from 6 months to 1 year. I want to make it
clear that this amendment would not delay the implementation of the
office of the national intelligence director or the National
Counterterrorism Center but gives the administration 6 more months to
implement the many offices, councils, and changes in the intelligence
community that the bill requires.
We are facing an election. We do not know what the outcome of the
election is, but to put the burdens of this bill in the first 6 months
on the administration, whether it is the existing one or a new one, is
entirely inappropriate. The first 6 months of a new Congress and the
new year of an administration go by very quickly, and I think there is
just too much to do with regard to budget, presentation of State of the
Union message, so many other things, to have this implementation done
within 6 months.
I make this recommendation because many of the individuals I have
spoken to in the intelligence community and those who appeared before
our Appropriations Committee suggest that executing these changes
should not be at an accelerated pace. Here are the important quotes
from Dr. Kissinger.
What I say and what I have written should be read in
conjunction with a joint statement that is being issued today
by the following group of individuals: former Senator Boren,
former Senator Bradley, former Secretary of Defense Carlucci,
former Secretary of Defense William Cohen, former Director of
the Central Intelligence Agency Robert Gates, former Under
Secretary of Defense John Hamre, former Senator Gary Hart,
myself, former Senator Sam Nunn, former Senator Warren
Rudman, and former Secretary of State George Shultz.
It is obviously a bipartisan group, and we are concerned
that the reforms of the magnitude that are being talked about
and with the impact that they will have on the conduct of
intelligence and on the national security machinery should
not be rushed through in the last weeks of the congressional
session in the middle of a Presidential election campaign.
The consequences of this reform will inevitably produce
months and maybe years of turmoil as the adjustments are made
in the operating procedures of the national security
apparatus and of the intelligence machinery. That is inherent
to reform. But we should not have to explain in retrospect
why it was so necessary to come to a conclusion in the middle
of a Presidential election campaign. Whatever decisions are
made this week, we will have to deal with the immediate
terrorist challenge by the apparatus that now exists, as it
has already been reformed in the light of the experience of
September 11. So urgency should not trump substance.
From Dr. John Hamre, former Deputy Secretary of Defense:
Mr. Chairman, we are now very far along the road in this
debate. Unfortunately, from my perspective, the shape of this
debate has been driven more by political imperative than deep
analysis of the challenges we face in this area. We do need
intelligence reform, I believe. But I believe the debate to
date, and the proposals before the Congress, are too narrowly
constructed around one perceived failure of the intelligence
community, and that is the failure to coordinate the
activities of the components of the intelligence community.
Without this extra 6 months, I feel the administration would be hard-
pressed to meet the strict requirements, recommendations, and
guidelines this bill imposes. It does not require a delay of 6 months;
it just gives 6 more months. If they can do it in 2 months, fine, but
why put a 6-month deadline when the study that is involved has a 6-
month deadline? My amendment allows the President to move fast if he
believes it is prudent but does not mandate a rush to finish.
I urge my colleagues to support this amendment which would only work
to help the administration to execute this mission well.
amendment no. 3827
The amendment strikes line 20 on page 130 of the bill and all text
that follows to line 2 on page 153 which relates to creation of a huge
information sharing network. The current occupant of the Chair will be
very interested in this amendment.
I understand the need for this office to be created, and my amendment
will create such an office. But, it would strike the specific
requirements and guidelines that the national intelligence director
would have to follow to establish a network for intelligence
information sharing. My amendment would allow the intelligence
community, and more importantly the national intelligence director, to
be using the information to determine what type of network they need.
[[Page S10233]]
During our Committee hearings, Dr. Henry Kissinger made the following
analysis:
Different components of the government have different
missions and priorities that cause them to assign different
levels of importance to protecting intelligence information.
Good management requires that, when there are contradictions
between using intelligence and protecting it, decisions are
made by established procedure. Sharing should be optimized,
not managed in detail. To attempt to prescribe all the
circumstance in bureaucratic or legalistic language would
involve so much detail and so many exceptions as to defeat
its own purpose.
Also, sharing of this information will not be the ultimate panacea.
ADM James Ellis, former Commander of U.S. Strategic Commander until a
few months ago, made the following point:
We should be wary of homogenizing centralized processes
that, albeit unintentionally, may suppress or filter
differing views. Recent op-ed pieces have noted the
inevitability of surprise in our past and offered as well
that often a surprise is a result of deficient analysis, not
collection or even sharing of data.
Also, from our intelligence reform hearings, Judge Richard Posner,
from the 7th Circuit, Court of Appeals stated the following:
The Commission thinks the reason the bits of information
that might have been assembled into a mosaic spelling 9/11
never came together in one place is that no one person was in
charge of intelligence. That is not the reason. The reason,
or rather, the reasons are, first, that the volume of
information is so vast that even with the continued rapid
advances in data processing it cannot be collected, stored,
retrieved and analyzed in a single database or even network
of linked databases. Second, legitimate security concerns
limit the degree to which confidential information can safely
be shared, especially given the ever-present threat of moles
like the infamous Aldrich Ames. And third, the different
intelligence services and the subunits of each service tend,
because information is power, to hoard it. Efforts to
centralize the intelligence function are likely to lengthen
the time it takes for intelligence and analyses to reach the
President, reduce diversity and competition in the gathering
and analysis of intelligence data, limit the number of
threats given serious consideration and deprive the president
of a range of alternative interpretations of ambiguous and
incomplete data--and intelligence data will usually be
ambiguous and incomplete.
I point out that the administration's statement, so-called SAP which
came from the administration, says:
the administration supports the strong information-sharing
authorities granted to the NID in the bill. The
administration is concerned that the extensive authorities
and responsibilities granted the Office of Management and
Budget to implement the information-sharing network are both
outside of OMB's usual responsibilities and are inconsistent
with the goal of ensuring an NID with effective authority to
manage the intelligence community. These responsibilities
should be granted to the NID in such a way as to remain
consistent with section 892 of the Homeland Security Act of
2002.
The administration also believes that the detail in which
the legislation prescribes the network is excessive. The
network would be more likely to accomplish its beneficial
goal if the bill simply provided the authority necessary for
its establishment while leaving the details to be worked out
and altered as the circumstances require.
I am also concerned with the very ambitious schedule that the bill
delineates. In 90 days, just 3 months, the Director of OMB would be
required to submit to the President and the Congress a description of
the Network, establish a director of services and conduct a review of
relevant current Federal agency capabilities; it would seem to me that
we are setting the administration up to fail with such an unreasonable
time frame.
I am also concerned about the cost. The bill estimates this could
cost at least $50 million dollars. Where would the funds for this
program come from? Also, how would they influence existing programs to
coordinate these activities? Currently there are not any funds
designated for these activities. Would they be requested from a
supplemental or would they be taken from the intelligence community's
very tight budget?
Also, I was hoping that the chairman and the ranking member could
provide a clearer picture about the protection of civil liberties. I
understand that the Privacy and Civil Liberties Boards will be included
in discussions--but I worry about the extent to which--and I am quoting
from the bill now:
private sector data, including information from owners and
operators of critical infrastructure, is incorporated into
the Network; and that the private sector is both providing
and receiving information.
This is another czar. We already have an intelligence czar. Now this
provision in this bill creates an information czar.
It ``requires that the national intelligence director is to set
standards for information technology and communication.'' By the way,
it does not say necessarily related to intelligence--across the entire
executive branch, for every Cabinet Secretary and I presume for the
FCC.
The NID would also develop an integrated information
technology and communication network that ensures information
sharing across the entire executive branch again for every
Cabinet Secretary
and agency, as I understand it, in the Federal Government
and with the State and local governments and the private
sector.
The scope of this is beyond comprehension. How can this group, now,
created by the OMB, assure that privacy and civil liberties will be
ensured when there is only one person at the helm, and that person is
selected by the OMB?
Am I reading the bill wrong? I don't think so.
What purposes are to be gained from a governmentwide
database that includes every part of the Government--Federal.
State, local?
Are we dreaming up a new net? Is this a new Internet? Is this a
government net? What is it and why should we give one person the
authority to control communications in this manner in this bill?
It would create the largest technological surveillance system ever
seen in the world. I repeat that: The largest technological
surveillance system ever seen in the world. I think it should be given
very thoughtful analysis.
We have to give NID time to establish what and how such information
should be gathered, how it is to be analyzed, how it is to be stored,
and how it is to be shared. That is to take place in 90 days. I hope
the administration, the committee members and their staff take a look
at this amendment. This provision is going to delay this bill, unless
my amendment is adopted or some form of that. Again, I am ready to hear
if we have misanalyzed this, but we have checked it with people who
have been in the system a long time and they agree our reading is
correct. I again refer the administration and the committee to
amendment No. 2837. That is a significant amendment, in my opinion.
Amendment No. 3840
I turn my attention to amendment No. 3840. This is an amendment
cosponsored by Senators Warner, Inouye, and the current occupant of the
chair, Senator Burns. It concerns the acquisition of major intelligence
systems. The purpose of this amendment is to strike the provisions of
the bill which transfer major decisionmaking authorities relating to
acquisition of national security and defense systems to the national
intelligence director.
My concern stems from a few items, based on the language in this
bill. It is unclear to me and to us if the national intelligence
director would be responsible for the creation of an entire new staff
for the acquisition of major systems or if the Department of Defense
shall have to transfer to the NID its personnel to provide the
manpower, expertise, and staff for these acquisition functions. If that
is the case, then how would the Department of Defense execute its own
oversight of its own programs? And, if the national intelligence
directorate were to have to use its own people until they can hire new
people, the national director would have to fall back to utilizing the
personnel of the existing agencies, the people Congress deemed in 2004
were the problem and not the solution.
Until it is clear to the Secretary of Defense whether the national
intelligence director must create a bureaucracy or parallel structure,
it is my recommendation that we continue the current structure which
permits the Secretary of Defense the decision authority over these
vital programs.
The NID should request what authority he needs. We should not give it
all to him and then have the Secretary of Defense fight to get back
some of the normal functions of the Department of Defense. The
underlying bill leaves that determination now to NID to begin with.
[[Page S10234]]
The Secretary of Defense should continue to oversee the execution of
acquisition programs within his Department, and the agencies related to
defense, especially those combat support agencies such as the National
Security Agency and the National Geospatial-Intelligence Agency.
The Congress recognized the fact that neither the National Security
Agency nor the National Geospatial Agency currently possess capability
to manage major acquisition programs by passing the fiscal year 2004
National Defense Authorization Act, Public Law 108-354, which
transferred these very responsibilities to the Department of Defense.
We, the Senate, just transferred these authorities and responsibilities
to the Department of Defense. What led to this transfer of acquisition
responsibility was a series of critical mistakes regarding the ability
to obtain and manage the acquisition of major systems. Some of these
mistakes wound up costing the taxpayers close to $1 billion. This is
not something we should experiment with, especially with new, untested
leadership or personnel.
I repeat, we just changed this this year. We moved it over to prevent
the further loss of money and now the committee suggests it should be
changed again and now put under a new director who has no experience
and no background in acquisition at all.
The administration has taken a policy in that statement, indicating
they believe the committee's provision relating to the NID's role in
acquisition of major systems needs further study to ensure that the
requirements of major consumers are met.
They understand this transfer is premature. It may be the Congress
should reverse itself now and move this acquisition authority back to
the NID. But let's let the NID get up and running. Let's find out
whether we have confidence in that system before we take it away from
the Department of Defense, when we just took it away from the
Intelligence Committee because of the failures of the past.
Finally, the language currently in the bill would only cover the
Department of Defense programs and not the programs in the National
Intelligence Program, and that is where the problems lie.
I urge the Senate not to act in haste where such large amounts of
funds are currently in play. They currently have a considerable amount
of money we have already put up for these acquisitions. The Senate
should not break a system that is now working well since this transfer
earlier this year, nor put up obstacles to our obtaining major
acquisition systems necessary for national security as quickly as
possible.
Again, I urge members of the committee to take a look at that.
Amendment No. 3882
Mr. President, have I called up amendment No. 3882? If not, I do wish
it to be called up at this time. I ask all other amendments be set
aside and this be called up, amendment No. 3882.
The PRESIDING OFFICER. Without objection, the clerk will report
amendment No. 3882.
The assistant legislative clerk read as follows:
The Senator from Alaska [Mr. Stevens] proposes an amendment
numbered 3882.
Mr. STEVENS. I ask unanimous consent the reading of the amendment be
dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
amendment no. 3882
(Purpose: To propose an alternative section 141, relating to the
Inspector General of the National Intelligence Authority)
On page 60, strike line 5 and all that follows through page
77, line 18, and insert the following:
SEC. 141. INSPECTOR GENERAL OF THE NATIONAL INTELLIGENCE
AUTHORITY.
(a) Office of Inspector General of National Intelligence
Authority.--There is within the National Intelligence
Authority an Office of the Inspector General of the National
Intelligence Authority.
(b) Purpose.--The purpose of the Office of the Inspector
General of the National Intelligence Authority is to--
(1) create an objective and effective office, appropriately
accountable to Congress, to initiate and conduct
independently investigations, inspections, and audits
relating to--
(A) the programs and operations of the National
Intelligence Authority;
(B) the relationships among the elements of the
intelligence community within the National Intelligence
Program; and
(C) the relationships between the elements of the
intelligence community within the National Intelligence
Program and the other elements of the intelligence community;
(2) recommend policies designed--
(A) to promote economy, efficiency, and effectiveness in
the administration of such programs and operations, and in
such relationships; and
(B) to prevent and detect fraud and abuse in such programs,
operations, and relationships;
(3) provide a means for keeping the National Intelligence
Director fully and currently informed about--
(A) problems and deficiencies relating to the
administration of such programs and operations, and to such
relationships; and
(B) the necessity for, and the progress of, corrective
actions; and
(4) in the manner prescribed by this section, ensure that
the congressional intelligence committees are kept similarly
informed of--
(A) significant problems and deficiencies relating to the
administration of such programs and operations, and to such
relationships; and
(B) the necessity for, and the progress of, corrective
actions.
(c) Inspector General of National Intelligence Authority.--
(1) There is an Inspector General of the National
Intelligence Authority, who shall be the head of the Office
of the Inspector General of the National Intelligence
Authority, who shall be appointed by the President, by and
with the advice and consent of the Senate.
(2) Any individual nominated for appointment as Inspector
General of the National Intelligence Authority shall have
significant prior experience in the fields of intelligence
and national security.
(d) Duties and Responsibilities.--(1) The Inspector General
of the National Intelligence Authority shall have the duties
and responsibilities set forth in applicable provisions of
the Inspector General Act of 1978 (5 U.S.C. App.).
(2) In addition to the duties and responsibilities provided
for in paragraph (1), the Inspector General shall--
(1) provide policy direction for, and plan, conduct,
supervise, and coordinate independently, the investigations,
inspections, and audits relating to the programs and
operations of the National Intelligence Authority, the
relationships among the elements of the intelligence
community within the National Intelligence Program, and the
relationships between the elements of the intelligence
community within the National Intelligence Program and the
other elements of the intelligence community to ensure they
are conducted efficiently and in accordance with applicable
law and regulations;
(2) keep the National Intelligence Director fully and
currently informed concerning violations of law and
regulations, violations of civil liberties and privacy, and
fraud and other serious problems, abuses, and deficiencies
that may occur in such programs and operations, and in such
relationships, and to report the progress made in
implementing corrective action;
(3) take due regard for the protection of intelligence
sources and methods in the preparation of all reports issued
by the Inspector General, and, to the extent consistent with
the purpose and objective of such reports, take such measures
as may be appropriate to minimize the disclosure of
intelligence sources and methods described in such reports;
and
(4) in the execution of the duties and responsibilities
under this section, comply with generally accepted government
auditing standards.
(e) Amendments to Inspector General Act of 1978.--(1) The
Inspector General Act of 1978 (5 U.S.C. App.) is amended--
(A) by redesignating section 8J as section 8K; and
(B) by inserting after section 8I the following new
section:
``special provisions concerning the national intelligence authority
``Sec. 8J. (a) Notwithstanding the last 2 sentences of
section 3(a), the Inspector General of the National
Intelligence Authority shall be under the authority,
direction, and control of the National Intelligence Director
with respect to audits or investigations, or the issuance of
subpoenas, which require access to information concerning
intelligence or counterintelligence matters the disclosure of
which would constitute a serious threat to national security.
With respect to such information, the Director may prohibit
the Inspector General from initiating, carrying out, or
completing any investigation, inspection, or audit if the
Director determines that such prohibition is necessary to
preserve the vital national security interests of the United
States.
``(b) If the National Intelligence Director exercises the
authority under subsection (a), the Director shall submit to
the congressional intelligence committees an appropriately
classified statement of the reasons for the exercise of such
authority within seven days.
``(c) The National Intelligence Director shall advise the
Inspector General of the National Intelligence Authority at
the time a report under subsection (a) is submitted, and, to
the extent consistent with the protection of intelligence
sources and methods, provide the Inspector General with a
copy of such report.
[[Page S10235]]
``(d) The Inspector General of the National Intelligence
Authority may submit to the congressional intelligence
committees any comments on a report of which the Inspector
General has notice under subsection (c) that the Inspector
General considers appropriate.
``(e) In this section, the term `congressional intelligence
committees' means--
``(1) the Select Committee on Intelligence of the Senate;
and
``(2) the Permanent Select Committee on Intelligence of the
House of Representatives.''.
(2) Section 8H(a)(1)(A) of that Act is amended by inserting
``National Intelligence Authority,'' before ``Defense
Intelligence Agency''.
(3) Section 11 of that Act is amended--
(1) in paragraph (1), by inserting ``the National
Intelligence Director;'' after ``the Office of Personnel
Management;''; and
(2) in paragraph (2), by inserting ``the National
Intelligence Authority,'' after ``the Office of Personnel
Management,''.
Mr. STEVENS. Mr. President, this is the final amendment I would call
up now. Again, I apologize for the way it is brought forward. The time
factors involved are very narrow, I know. I do want to say,
parenthetically, again, one paper said I shouted at the chairman
yesterday. I certainly hope I did not shout at the chairman of the
committee. Having formerly been the chairman--and Senator Lieberman
also has been the chairman--I know the vast diversity of this committee
and the difficulty we have had bringing this bill to the floor. I think
they have done an extremely fine job under the circumstances we have. I
don't know why we are being pressured as we are, but the decision has
been made to get this bill out, and so we share the leadership position
to accomplish that goal.
But I am worried, as I told the managers personally, that some of the
in-depth study others of us have given to this bill is not being
listened to. The problem will be not in having the bill passed; the
problem will be in having the bill implemented if some of these
amendments are not adopted. The timeframes in particular worry me
greatly, the timeframes within this process. This is worse than
establishing a new department, really. This is a control mechanism over
a system that abhors control. It is hard to control. If we do it wrong,
we are going to bust this system. We are going to destroy the morale.
As I said the other day, it takes a minimum of 5 years to get an agent
in the field, and it will take another 5 years before that agent can
actively recruit people and deal with the nationals and really help
control the national assets we need for our security. The people we
have in the field right now really started out around 1994 or 1995.
They are out there. If we disturb their morale so they decide to pursue
other courses, positions, or other goals, this Government is going to
be left literally exposed. All of these people are extremely capable
people. I have never encountered the intelligence quotient in any other
area in our Government that I have run into in the intelligence field.
They are high-strung people. They are people whose morale is absolutely
essential.
I urge the Senate to consider the morale of the people in the system
now and those who will be coming into the system as we moved forward.
Do not set timeframes such that it is designed for failure. Give them
time. The system is working now. I have said that time and again. I
don't think most people know how much change has occurred in the
intelligence community since 9/11. It is working. The fact that we
haven't had another 9/11 shows that it is working. I hope we will be
careful.
I want to talk about this one amendment.
Mr. WARNER. Mr. President, will the Senator yield for 1 minute? I
associate myself with his remarks about how we are going about this. We
have made enormous progress since the 1991 operation in Iraq, as the
Senator well knows, particularly in the tactical level and in military
intelligence. I am hopeful that in this haste, we do not
unintentionally go back from the progress we have made so far.
Mr. STEVENS. I thank the Senator. We made progress in a lot of areas
outside of Iraq. I am in contact now with people in the Philippines. We
have problems. We have problems in Indonesia. We have problems
throughout the area. We have problems with all of these drugs from
Afghanistan. This is a complex world. When we visited with the station
chiefs throughout the world recently, they all said the same thing.
Ours is a very difficult problem. It is hard to figure out our
priorities right now. They are going to have to wait until NID gives
them their priorities. How long must they wait?
My amendment suggests an alternative to the inspector general of the
National Intelligence Authority as proposed in this bill.
This is amendment No. 3882.
Under the committee bill, the inspector general would have the
authority to provide policy direction on interagency relationships
without consulting with the department heads of the affected agencies.
I see you shaking your head. You had better read the bill if you
disagree. I don't like to see that from staff, anyway. If you are going
to shake your head, move.
I think this is a situation where we have been through the creation
of inspectors general on the Governmental Affairs Committee. People
ought to look at what is being done under this bill. This is the only
inspector general I know that would have the authority and direction to
provide policy direction on interagency relationships without
consulting with the department heads of the affected agencies.
Here is an inspector general of the intelligence community from NID.
He has the authority to interrogate people in other agencies to find
out interagency relationships of his agency with these other agencies
without consulting the heads of the other agencies. Nothing indicates
they are even going to consult the inspectors general of those
agencies.
There are inspectors general of every agency covered by this bill.
That would give the inspector general of the NIA unprecedented
authority over appointed officials of other independent agencies and
departments. I don't know why the inspector general of the NIA should
have unprecedented powers that no other inspector general has.
I raised this question before and I was told that was not the case.
When I raised the question, I was told on the floor earlier that the
inspector general has the same authority as the inspectors general. I
challenged that. And this amendment would bring that bill back into the
situation where I was told it was, and that is the inspectors general
have the same authority as any other inspector general. They would
still have the authority to audit programs and operations of the
national intelligence authority. They shall have the authority to
investigate interagency relationships if they wanted to among the
elements of the intelligence community both within and outside the
national intelligence program, but the inspector general of the
National Intelligence Authority will not direct the policy of other
independent agencies or any other agency. As a matter of fact, IGs
should not direct anything. They should make findings and report their
findings to the head of the agency.
My amendment is based on existing law that has proven successful in
ensuring that the authority of inspectors general of the intelligence
community does not infringe upon independent inspectors general of
other agencies.
I urge the Senate to take a look at this. To have anyone authorized
to investigate interagency relationships? How are you going to get
along with your colleagues in the other group? Inspectors general
should look for performance or for honesty and integrity, to examine
the operations and report. But to report on interagency relationships
involving other departments and agencies that are not under his control
and are under the control of other inspectors general, that is really
going too far. I will say this categorically: If that provision is not
changed, I will vote against this bill. I have lived with inspectors
general now too long, and that goes too far. I will not vote for this
bill unless it is altered.
Ms. COLLINS. Mr. President, I know the Senator from Alaska is on a
tight timeline this afternoon. I am not going to respond in depth to
the amendments he put forward.
Let me say to the Senator from Alaska that on some of his amendments
he has raised very valid concerns, and I would like the opportunity to
work with him to try to resolve some of the issues. For example, some
of the implementation date issues I believe we might be able to work
through. The
[[Page S10236]]
clarifying language on the counterterrorism center parallels the
changes we made in committee, and we may well be able to come up with
something on that.
I appreciate the Senator's concerns and his desire to make sure that
the language is clear and accurate throughout the bill. While obviously
we have some fundamental disagreements on the underlying legislation,
nevertheless I believe that some things in his amendments are
beneficial in the bill, if we are able to resolve some language. I want
to pledge to him my appreciation for his effort and my willingness to
work with him on some of those issues.
Mr. STEVENS. Mr. President, I apologize, I do have to go. I want the
Record to show my support for Senator Byrd's amendment No. 3845, which
a few of us have endorsed. I hope we can negotiate some of that because
that covers, as the distinguished senior Member of this body has said,
the relationship that many of us have had with this process for a long
time. I hope we will have a chance to work it out.
Mr. LIEBERMAN. I thank Senator from Alaska. I thank him for the
promise he has made and for the suggestions he has offered. There are
some matters on which we have big disagreements. There are others on
which we clearly do not. We have made some suggestions today that we
can work out over the weekend which will improve the bill.
Most of all, I want the Senator from Alaska to know that we always
listen to him whether he shouts or not.
Mr. STEVENS. Shout doesn't count. Sometimes I am loud. I apologize.
Mr. LIEBERMAN. Have a good weekend.
Mr. STEVENS. Mr. President, if the Senator will yield, Senator Byrd
and I have asked and urged all chairmen and ranking members of the
appropriations subcommittees to start conferencing the substance of
their bills with the House.
We need to resolve our differences now, before the recess next week,
if possible. We have a short period of time when we come back. The
continuing resolution will expire November 20.
I conferred with the chairman of the House Appropriations Committee,
Chairman Bill Young. He agrees that something needs to be done while we
are gone. I don't know if it is possible, but I hope the Senate and
House staff will do their best to work with the chairmen and ranking
members of the subcommittees on their recommendations and make sure we
have them available when we come back on November 16. There will be no
time to do such preliminary conferencing when we get back.
At best, we will have 5 days to get something out of conference and
resolve the issues and pass a conference report of some kind to deal
with as many bills as we can handle. That is a tall order.
I thank my friend, Senator Byrd, ranking member, former chairman of
our committee. We are working together with the objectives of trying to
finish these bills this year. When the two chairmen retire from the
House and the Senate Appropriations Committee, with us will go our
staffs. If the next chairman of the House and Senate Appropriations
Committee has to continue the work that we should accomplish this year,
it is going to take months this time because the trained staff, the
people who know the subject, will not be there. We move on to other
subjects.
Congress must get these appropriations bills done this year.
The PRESIDING OFFICER. The Senator from Maine.
Amendment No. 3849
Ms. COLLINS. I call for the regular order with respect to the Corzine
amendment numbered 3849.
The PRESIDING OFFICER. The amendment is pending.
Amendment No. 3946 to Amendment No. 3849
(Purpose: To provide a complete substitute)
Ms. COLLINS. Mr. President, I send a second-degree amendment to the
desk on behalf of Senator Inhofe.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Maine, [Ms. Collins], for Mr. Inhofe,
proposes an amendment numbered 3946 to amendment No. 3849.
(The amendment is printed in today's Record under ``Text of
Amendments.'')
Ms. COLLINS. Mr. President, I ask unanimous consent that the pending
amendments be set aside so that other amendments can be considered.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. COLLINS. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. SESSIONS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Kyl). Without objection, it is so ordered.
Mr. SESSIONS. Mr. President, I thank Senator Collins and Senator
Lieberman for their hard work on this bill.
I called one of my Democratic colleagues who has been around this
body for a long time. I didn't know whether it was a good bill; he said
he didn't either. It certainly has good intent. I certainly believe
that improving our intelligence is of important national interest.
I want to be supportive of this bill, but I do think it is important
that we keep an eye on it because we have learned in the past that
bills with language that may sound good at the moment, may not be what
is best for the country. We may find out that very language, that one
sentence or what have you, can be the very language that undermines the
ability of our intelligence community to be effective in protecting the
interests of the United States.
I certainly believe we need to do everything we can to create an
effective joint national intelligence effort. Unfortunately, I am
afraid there are things in this bill that, indeed, may pervert the very
purpose of the legislation; that will handicap the intelligence
community rather than assist it.
The language would prevent the national intelligence director from
having the very capabilities that allow unhindered and meaningful
intelligence collection and analysis.
The bill establishes four new offices, additional new privacy and
civil liberty officers within each agency, and it creates a new civil
liberties board, all with management authority.
If this was the kind of language we could work with, I would be
supportive, but I am afraid the way this language has been put together
could create bottlenecks and could undermine our ability to be
effective. If so, I have a problem with it. I certainly don't want to
have a problem with a bill initiating such important reform, but I do.
September 11 did not happen because there was too little bureaucracy.
It did not happen because the intelligence community needed more
offices and boards, more monitoring personnel, more supervision and
more second-guessing. In fact, the problems happened--many of them--
because the intelligence community found it difficult to work through
the maze of bureaucracies that already exist in what we have today.
Adding more to this bureaucracy only serves to exacerbate
intelligence-gathering problems, not help them. Proliferation of
government panels, boards, agencies, and ombudsman is not the answer.
There are six sections of the bill, including four offices, a board,
and still more additional officers, all tasked with the same
bureaucratic management responsibility: No, 1, section 126, officer for
civil rights and civil liberties of the national intelligence
authority; No. 2, section 127, privacy officer of the national
intelligence authority; No. 3, under section 141, the inspector general
of the national intelligence authority; No. 4, ombudsman of the
national intelligence authority; No. 5, section 211, the privacy and
civil liberties oversight board; and under section 212, the privacy and
civil liberties officers.
That is quite a bit of bureaucracy, and I know the Presiding Officer
is concerned.
We have four new offices added to the national intelligence
authority, a board added to the Executive Office of the President, and
additional officers added to the various offices within the
intelligence agency, all virtually with
[[Page S10237]]
unrestrained management responsibilities.
I don't believe this is what the 9/11 Commission had in mind. In
fact, the
9/11 Commission uses the words ``privacy'', ``civil rights'', and
``civil liberties'' 23 times in the 567-page document. We have marked
with blue tabs the references to these terms. The Commission was
concerned about it and wanted to make sure we had the right provisions
to deal with it. They confronted that issue and dealt with it
seriously, mentioning it 23 times.
How about the legislation before the Senate today? How about the
legislation we now have under Collins-Lieberman? It has fewer pages,
only 213. Yet it has 126 such references to the terms. Members can see
the red marks I put on there. They are the marks that show references
to these issues. The whole report is chock full of detail on this.
Of course, we know what our problems were with intelligence. We did
not have enough linguists. We did not focus enough on human
intelligence. We had too much bureaucracy because of the wall between
CIA and FBI intelligence that was thought being shared around the
world. Those are the real problems, not how much oversight we might
create and make it even more difficult for our agents to function
without fear that somebody will second-guess whatever they might do in
areas of the world where their very lives could be at stake and,
indeed, are at stake.
The legislation before the Senate mentions the terms six times as
much as the 9/11 Commission. The 9/11 Commission recommended a single--
one--civil liberties oversight board. It certainly did not recommend
numerous layers of bureaucracy throughout the intelligence community.
These, I am afraid, would undermine or distract our ability to protect
our security in this country.
I think one of our fears with regard to intelligence and national
security, as Senator Kyl has so eloquently mentioned, is timidity, a
concern that our agents around the world, who are working to find those
people who want to do us harm before they actually do us harm, identify
them, could make a mistake resulting in criticism and punishment.
Timidity can be damaging to our work. That is the problem I am
concerned about. We need to create a system that promotes courage,
innovation, and creativity on the part of our agents.
When somebody does something new and creative, occasionally things do
not turn out the way you would like. Certainly in the intelligence
field, that is so. I used to be a Federal prosecutor. We would use
undercover operatives, and we would do things, such as put recorders on
them. All kinds of things could happen, and sometimes things went
astray. But, you want to encourage agents to try to do the kinds of
operations that work, not want them in fear that somebody is looking
over their shoulder every time they do something that might blow up and
then their career would be ruined. I feel strongly about this issue. I
hope we can focus on it more clearly.
If you look through the offices that would be created in this bill,
they are duplicative and have many problems with them. For example, the
officer for civil rights and civil liberties, in section 126 of the
bill, is tasked with assisting the national intelligence director in
ensuring that the protection of civil rights and civil liberties is
appropriately incorporated in the policies and procedures under the
national intelligence authority.
This official is also given oversight authority and can ``review,
investigate, and assess complaints and other information indicating
possible abuses of civil rights and civil liberties'' in the
administration of and relationships among the National Intelligence
Authority, unless the NIA's Inspector General determines that the IG
can better review the matter--basically, they have to take over the
matter.
Here the officer is given powerful authority to conduct as many
investigations into any area of the NIA as the officer chooses, all
without having to get the agreement or approval of anyone. Only the IG,
the Inspector General, could intervene, and then basically only to take
over the investigation. So this section provides for a powerful officer
who could prove to be disruptive to the goals of the NID.
While protecting and defending civil liberties is an important factor
for our Nation, granting an officer free, unfettered, and unchecked
authority to tie up intelligence operations and analysis through
investigations is not the goal of intelligence reform, or the intention
of the 9/11 Commission.
The Inspector General, is checked ``from initiating, carrying out, or
completing any investigation, inspection, or audit if the Director
determines that such prohibition is necessary to protect vital national
security interests of the United States.'' The Inspector General is
constrained by the national security interests of the United States,
but not this new officer for Civil Rights and Liberties. That officer
should be subject to similar constraints.
Secondly, there is a privacy officer provided for in section 127.
That officer is tasked with coordinating with the officer of civil
rights and civil responsibilities to ensure that privacy policies are
upheld. This person will conduct ``privacy impact assessments when
appropriate or as required by law.'' Once again, the bill grants
unrestrained access and power to a person to check up on the national
intelligence director and the intelligence community. This superfluous
management could be a handicap to our intelligence-gathering
activities. It is something I am concerned about.
We also have in this bill an Inspector General for the NIA, an
ombudsman, the board mentioned in section 211, and the officers
mentioned in section 212. The Inspectors General of the CIA and the
Defense Department are made duplicative officers to the IG in Section
141. And it can have the effect of not only creating excess officers
and expense, but also creating competition and undermining the
initiative of the agency in question.
We want to be sure that civil rights and civil liberties are
protected. We want to be sure that American citizens are protected, not
only their civil liberties, which we absolutely intend to protect, but
we want to protect their lives, their health, and their families from
people who do not share our values and have the goal to destroy us.
While I believe we can defend America with a high degree of fidelity
to the liberties and freedoms we cherish, I also know one of the
biggest problems we have had is the timidity and the restraint that
people feel who work in our intelligence community.
For example, I see Senator Kyl is the Presiding Officer. He, for
years, recognized the terrible impact on the intelligence-gathering
process that resulted from legislation--well intentioned--that
constrained the ability of CIA agents and other agents of this United
States from dealing with a person who had a criminal record. These
agents were prohibited from dealing with these disreputable people.
Well, many of the people who have the critical, life or death
information may have a reputation or conviction in some country around
the world of doing bad things. We know, after hearings, and after much
debate on this floor, Senator Kyl eventually got that reversed. But it
was late. We lost a lot.
The real problem with that constraint on intelligence gathering was
that agents themselves said: ``OK, they don't want me to do this. I am
not going to do it. I am not going to take a chance. I am not going to
deal with somebody who might have a criminal record because it may come
back to haunt me, and they will haul me before the Church Committee or
some other such committee and embarrass me and my family and undermine
my career and record in this agency. I am not going to take a chance.''
That is what we know happened. It was not a good thing. We fixed
that, just as we fixed the wall between the FBI and CIA. These laws
sounded like a good idea at the time to those who passed them. And, I
am not saying people were not sincere about it. But the net result was,
we created timidity, pockets of information, and stovepipes, that did
not share information between one another. As a result, there may have
been a possibility, had that not been in existence, that we could have
protected better the lives and fortunes of American citizens.
I thank Chairman Collins and Senator Lieberman and the people who
have worked on this. I believe we do need to strengthen our
intelligence
[[Page S10238]]
community, but there are a number of things in this legislation that
cause me great concern. We need to be realistic, to work in a way that
protects the great traditions of freedom and liberty in this country,
but also protects the lives and safety of our families and our
communities.
I thank the Chair and yield the floor.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Mr. President, I appreciate the Senators from Arizona
and Alabama bringing forward their amendments today, but I have a
number of concerns about them.
The proposed amendments strike an officer for civil rights and civil
liberties and a privacy officer for the new national intelligence
authority. The amendment also strikes provisions requiring that a
senior official be designated in certain departments and agencies who
would be responsible for privacy and civil liberties issues. And
finally, the amendment changes the authority of the privacy and civil
liberties oversight board by removing its subpoena authority. I
particularly want to address that last point, because I think there is
a misunderstanding on the extent of the subpoena authority and to whom
it applies.
In the wake of the terrorist attacks on September 11, during his
joint address to the Congress, the President called on all Americans
to:
. . . uphold the values of America and remember why so many
have come here. We're in a fight for our principles and our
first responsibility is to live by them.
Similarly, the 9/11 Commission concluded in its report that we must
find ways of reconciling security with liberty since the success of one
helps protect the other. The choice between security and liberty is a
false choice, as nothing is more likely to endanger America's liberties
than the success of a terrorist attack at home.
The Commission went on to state that while protecting our homeland,
Americans should be mindful of the threats to vital personal and civil
liberties. The shift of power and authority to the Government calls for
an enhanced system of checks and balances to protect the precious
liberties that are vital to our way of life.
In response to these concerns, the Commission recommended that at
this time of increased and consolidated Government authority, there
should be a board within the executive branch to oversee adherence to
the guidelines the Commission recommends and the commitment of our
Government to protect civil liberties.
To respond to these recommendations and the concerns that we fight
this war against terrorism without sacrificing the values that define
us as Americans, S. 2845 establishes the two officers, one for civil
rights and one for privacy, to assist the national intelligence
director on issues that may affect civil liberties and privacy. These
officials are modeled after those created by Congress for the
Department of Homeland Security. There is both a civil liberties
officer and a privacy officer. The creation of similar officers within
the Department of Homeland Security is a good example of how these
officers can assist the Department in considering relevant issues
without compromising our efforts to protect the homeland.
The Department has found that having those two officials has helped
them strike the right balance as they pursue new policies. The
Department has found that the work of these officials at DHS has not
hindered its implementation of programs and activities but, rather, has
improved them. By providing advice and counsel as policies and programs
are being developed, they help the Department address privacy and civil
liberties concerns at the front end and minimize the possibility of
having to respond to real problems after a policy or program that
didn't take into account privacy implications or civil liberties
implications has already been put into place.
I would have been more sympathetic to the amendment if the Senators
had made the argument that perhaps in this much smaller unit those two
officials could be combined into one position so that we could have one
official for both privacy and civil liberties. That might be a possible
compromise. It is one about which I would have to talk with the other
sponsor of the bill. But that might be a way to respond to a concern
that I know the Presiding Officer has about excessive positions or
bureaucracies.
I want to speak particularly to the subpoena issue. The subpoena
power provided in this bill to the civil liberties board applies only
to persons other than departments, agencies, and elements of the
executive branch. I want to repeat that. While the bill does authorize
the board to have access to executive department and agency materials
and personnel, where appropriate, there is no subpoena power. There is
no enforcement mechanism in the bill. That leaves compliance in the
hands of the relevant department or agency head. The subpoena power
only applies to outside entities, not to Government agencies or
officials.
So the provisions of this subpoena authority do not allow the
scenario brought forth by some of the sponsors of this amendment in
which they raise the specter of the civil liberties board being able to
subpoena a CIA case officer. That is not allowed under this bill.
Moreover, the subpoena authority in this bill is narrower, much more
circumscribed, than the authority that is given to inspectors general
throughout the Federal Government who do have the ability to subpoena
documents and individuals for information within the Federal
Government. I wanted to correct that misunderstanding on the subpoena
power.
We have a responsibility, as we continue to improve our capacity to
fight terrorism--the all-important battle that our Nation faces--to
uphold and protect the very liberties and freedom on which this Nation
was founded and for which we are fighting today. We need to make sure
that as we strengthen the power of Government, we do not infringe upon
the civil liberties and the privacy of law-abiding Americans. I believe
the provisions in this bill help to strike the right balance.
Let me complete my remarks on this issue by pointing out that the 9/
11 Commission has endorsed the board created by this bill. I know the
Senator from Alabama has suggested a different version of a civil
liberties board.
In testimony before the House Government Reform Committee, two of our
commissioners--and I would note it was bipartisan; it was a Republican
commissioner and a Democratic commissioner--said:
A civil liberties board of the kind we recommend can be
found in the Collins-Lieberman bill in the Senate.
I thank the Chair.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. LIEBERMAN. Mr. President, I thank my friend, the Chair, and the
Senator from Alabama for introducing these amendments.
I understand their concerns very well. They have raised some
reasonable and direct questions. I want to attempt at this moment to
try to reassure them, which is to say there is nothing in this
underlying bill intended to, or that I can see, restrict the capacity
or the mobility of people working in our intelligence community to
operate to protect us. The board that is created is intended to, as I
see it, do a broad review of policies before policies are ordered or
issued, to consult with the policymakers, and afterward to do a review.
I don't think there is any basis for feeling that if somebody felt
their liberties were violated by a particular action of a particular
agency or intelligence person or officer, they could appeal to this
board. So the intent is not to second-guess or create a place where
there can be second-guessing of individual cases, individual decisions.
Therefore, to avoid what the Senator from Alabama and the Senator from
Arizona, I think quite understandably, worry about, a climate of risk
aversion--you don't want that to happen--you want these people to be
aggressive, fearless, and not risk averse.
As a matter of fact, all of the discussion we have had in another
context about the bill, which is about encouraging competitive analyses
and the so-called red team concepts--and we set up an audit review
section to do quality control--it is all about making sure people don't
get in a group-think or that they get risk averse, but that they be
bold and opinionated and they come up with the best result for us.
The other thing I want to say about the privacy and civil liberties
offices is that, as Senator Collins said, we took this model--and I
urge us to think
[[Page S10239]]
about this--from the Department of Homeland Security, which has both
privacy and civil liberties advisers in it. I will give you a couple of
quotes as to early reports. Asa Hutchinson, Under Secretary for Border
and Transportation Security at the Department of Homeland Security,
testified at the Judiciary Committee last month talking about the
agency's existing privacy officer. He said:
Here in DHS, we can show the effectiveness of a strong
privacy officer at the agency level and the success that is
achievable only through direct integration of privacy
protections in operational work. Privacy is an issue that
stretches across the entire government and as we continue to
look at government-wide approaches to privacy, it is also
important to see how productive agency-level privacy
protections are.
That sounds to me like a good, healthy dialog has been created in
which privacy is being considered but not standing in the way of that
Department protecting our security.
I will also quote from Secretary Ridge, who noted the important role
of the same office in providing what he called ``proactive legal and
policy advice to senior leadership in the Department and its
components.'' He cited the office's success in working with the Border
and Transportation Security Directorate ``to craft positive policy
changes in response to the issues raised by the DOJ Inspector General's
report on the 9/11 immigration detainees,'' and in ``develop[ing]
policies to establish DHS as a model employer for people with
disabilities . . . ''--it goes on about helping to implement President
Bush's recent Executive order.
I have great respect for my colleagues and friends who introduced
this amendment. I understand their concern and I hope in some small way
through what I have said I can alleviate the concerns they have.
I thank the Chair and yield the floor.
The PRESIDING OFFICER. The Senator from Alabama is recognized.
Amendments Nos. 3928, 3873, 3871, and 3870, En Bloc
Mr. SESSIONS. Mr. President, I ask unanimous consent that the pending
amendment be set aside, and I call up amendments Nos. 3928, 3873, 3871,
3870, and ask for their immediate consideration.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The clerk will report.
The legislative clerk read as follows:
The Senator from Alabama [Mr. Sessions] proposes amendments
numbered 3928, 3873, 3871, and 3870, en bloc.
Mr. SESSIONS. Mr. President, I ask unanimous consent that further
reading of the amendments be dispensed with.
The amendments are as follows:
amendment no. 3928
(Purpose: To require aliens to make an oath prior to receiving a
nonimmigrant visa)
At the end add the following new title:
TITLE IV--OTHER MATTERS
SEC. 401. VISA REQUIREMENTS.
Section 222 of the Immigration and Nationality Act (22
U.S.C. 1202) is amended by adding at the end the following
new subsection:
``(h) Every alien applying for a nonimmigrant visa shall,
prior to obtaining such visa, swear or affirm an oath stating
that--
``(1) while in the United States, the alien shall, adhere
to the laws and to the Constitution of the United States;
``(2) while in the United States, the alien will not
attempt to develop information for the purpose of threatening
the national security of the United States or to bring harm
to any citizen of the United States;
``(3) the alien is not associated with a terrorist
organization;
``(4) the alien has not and will not receive any funds or
other support to visit the United States from a terrorist
organization;
``(5) all documents submitted to support the alien's
application are valid and contain truthful information;
``(6) while in the United States, the alien will inform the
appropriate authorities if the alien is approached or
contacted by a member of a terrorist organization; and
``(7) the alien understands that the alien's visa shall be
revoked and the alien shall be removed from the United States
if the alien is found--
``(A) to have acted in a manner that is inconsistent with
this oath; or
``(B) provided fraudulent information in order to obtain a
visa.''.
amendment no. 3873
(Purpose: To protect railroad carriers and mass transportation from
terrorism)
At the end of the bill, insert the following:
SEC. __. RAILROAD CARRIERS AND MASS TRANSPORTATION PROTECTION
ACT OF 2004.
(a) Short Title.--This section may be cited as the
``Railroad Carriers and Mass Transportation Protection Act of
2004''.
(b) In General.--Chapter 97 of title 18, United States
Code, is amended by striking sections 1992 through 1993 and
inserting the following:
``Sec. 1992. Terrorist attacks and other violence against
railroad carriers, passenger vessels, and against mass
transportation systems on land, on water, or through the
air
``(a) General Prohibitions.--Whoever, in a circumstance
described in subsection (c), knowingly--
``(1) wrecks, derails, sets fire to, or disables railroad
on-track equipment, a passenger vessel, or a mass
transportation vehicle;
``(2) with intent to endanger the safety of any passenger
or employee of a railroad carrier, passenger vessel, or mass
transportation provider, or with a reckless disregard for the
safety of human life, and without previously obtaining the
permission of the railroad carrier, mass transportation
provider, or owner of the passenger vessel--
``(A) places any biological agent or toxin, destructive
substance, or destructive device in, upon, or near railroad
on-track equipment, a passenger vessel, or a mass
transportation vehicle; or
``(B) releases a hazardous material or a biological agent
or toxin on or near the property of a railroad carrier, owner
of a passenger vessel, or mass transportation provider;
``(3) sets fire to, undermines, makes unworkable, unusable,
or hazardous to work on or use, or places any biological
agent or toxin, destructive substance, or destructive device
in, upon, or near any--
``(A) tunnel, bridge, viaduct, trestle, track,
electromagnetic guideway, signal, station, depot, warehouse,
terminal, or any other way, structure, property, or
appurtenance used in the operation of, or in support of the
operation of, a railroad carrier, without previously
obtaining the permission of the railroad carrier, and with
intent to, or knowing or having reason to know such activity
would likely, derail, disable, or wreck railroad on-track
equipment;
``(B) garage, terminal, structure, track, electromagnetic
guideway, supply, or facility used in the operation of, or in
support of the operation of, a mass transportation vehicle,
without previously obtaining the permission of the mass
transportation provider, and with intent to, or knowing or
having reason to know such activity would likely, derail,
disable, or wreck a mass transportation vehicle used,
operated, or employed by a mass transportation provider; or
``(C) structure, supply, or facility used in the operation
of, or in the support of the operation of, a passenger
vessel, without previously obtaining the permission of the
owner of the passenger vessel, and with intent to, or knowing
or having reason to know that such activity would likely
disable or wreck a passenger vessel;
``(4) removes an appurtenance from, damages, or otherwise
impairs the operation of a railroad signal system or mass
transportation signal or dispatching system, including a
train control system, centralized dispatching system, or
highway-railroad grade crossing warning signal, without
authorization from the rail carrier or mass transportation
provider;
``(5) with intent to endanger the safety of any passenger
or employee of a railroad carrier, owner of a passenger
vessel, or mass transportation provider or with a reckless
disregard for the safety of human life, interferes with,
disables, or incapacitates any dispatcher, driver, captain,
locomotive engineer, railroad conductor, or other person
while the person is employed in dispatching, operating, or
maintaining railroad on-track equipment, a passenger vessel,
or a mass transportation vehicle;
``(6) engages in conduct, including the use of a dangerous
weapon, with the intent to cause death or serious bodily
injury to any person who is on the property of a railroad
carrier, owner of a passenger vessel, or mass transportation
provider that is used for railroad or mass transportation
purposes;
``(7) conveys false information, knowing the information to
be false, concerning an attempt or alleged attempt that was
made, is being made, or is to be made, to engage in a
violation of this subsection; or
``(8) attempts, threatens, or conspires to engage in any
violation of any of paragraphs (1) through (7);
shall be fined under this title or imprisoned not more than
20 years, or both.
``(b) Aggravated Offense.--Whoever commits an offense under
subsection (a) in a circumstance in which--
``(1) the railroad on-track equipment, passenger vessel, or
mass transportation vehicle was carrying a passenger or
employee at the time of the offense;
``(2) the railroad on-track equipment, passenger vessel, or
mass transportation vehicle was carrying high-level
radioactive waste or spent nuclear fuel at the time of the
offense;
``(3) the railroad on-track equipment, passenger vessel, or
mass transportation vehicle was carrying a hazardous material
at the time of the offense that--
``(A) was required to be placarded under subpart F of part
172 of title 49, Code of Federal Regulations; and
``(B) is identified as class number 3, 4, 5, 6.1, or 8 and
packing group I or packing group II, or class number 1, 2, or
7 under the hazardous materials table of section 172.101 of
title 49, Code of Federal Regulations; or
[[Page S10240]]
``(4) the offense results in the death of any person;
shall be fined under this title or imprisoned for any term of
years or life, or both. In the case of a violation described
in paragraph (2), the term of imprisonment shall be not less
than 30 years; and, in the case of a violation described in
paragraph (4), the offender shall be fined under this title
and imprisoned for life and be subject to the death penalty.
``(c) Crimes Against Public Safety Officer.--Whoever
commits an offense under subsection (a) that results in death
or serious bodily injury to a public safety officer while the
public safety officer was engaged in the performance of
official duties, or on account of the public safety officer's
performance of official duties, shall be imprisoned for a
term of not less than 20 years and, if death results, shall
be imprisoned for life and be subject to the death penalty.
``(d) Circumstances Required for Offense.--A circumstance
referred to in subsection (a) is any of the following:
``(1) Any of the conduct required for the offense is, or,
in the case of an attempt, threat, or conspiracy to engage in
conduct, the conduct required for the completed offense would
be, engaged in, on, against, or affecting a mass
transportation provider, owner of a passenger vessel, or
railroad carrier engaged in or affecting interstate or
foreign commerce.
``(2) Any person travels or communicates across a State
line in order to commit the offense, or transports materials
across a State line in aid of the commission of the offense.
``(e) Nonapplicability.--Subsection (a) does not apply to
the conduct with respect to a destructive substance or
destructive device that is also classified under chapter 51
of title 49 as a hazardous material in commerce if the
conduct--
``(1) complies with chapter 51 of title 49 and regulations,
exemptions, approvals, and orders issued under that chapter,
or
``(2) constitutes a violation, other than a criminal
violation, of chapter 51 of title 49 or a regulation or order
issued under that chapter.
``(f) Definitions.--In this section--
``(1) the term `biological agent' has the meaning given to
that term in section 178(1);
``(2) the term `dangerous weapon' means a weapon, device,
instrument, material, or substance, animate or inanimate,
that is used for, or is readily capable of, causing death or
serious bodily injury, including a pocket knife with a blade
of less than 2\1/2\ inches in length and a box cutter;
``(3) the term `destructive device' has the meaning given
to that term in section 921(a)(4);
``(4) the term `destructive substance' means an explosive
substance, flammable material, infernal machine, or other
chemical, mechanical, or radioactive device or material, or
matter of a combustible, contaminative, corrosive, or
explosive nature, except that the term `radioactive device'
does not include any radioactive device or material used
solely for medical, industrial, research, or other peaceful
purposes;
``(5) the term `hazardous material' has the meaning given
to that term in chapter 51 of title 49;
``(6) the term `high-level radioactive waste' has the
meaning given to that term in section 2(12) of the Nuclear
Waste Policy Act of 1982 (42 U.S.C. 10101(12));
``(7) the term `mass transportation' has the meaning given
to that term in section 5302(a)(7) of title 49, except that
the term includes school bus, charter, and sightseeing
transportation;
``(8) the term `on-track equipment' means a carriage or
other contrivance that runs on rails or electromagnetic
guideways;
``(9) the term `public safety officer' has the meaning
given such term in section 1204 of the Omnibus Crime Control
and Safe Streets Act of 1968 (42 U.S.C. 3796b);
``(10) the term `railroad on-track equipment' means a
train, locomotive, tender, motor unit, freight or passenger
car, or other on-track equipment used, operated, or employed
by a railroad carrier;
``(11) the term `railroad' has the meaning given to that
term in chapter 201 of title 49;
``(12) the term `railroad carrier' has the meaning given to
that term in chapter 201 of title 49;
``(13) the term `serious bodily injury' has the meaning
given to that term in section 1365;
``(14) the term `spent nuclear fuel' has the meaning given
to that term in section 2(23) of the Nuclear Waste Policy Act
of 1982 (42 U.S.C. 10101(23));
``(15) the term `State' has the meaning given to that term
in section 2266;
``(16) the term `toxin' has the meaning given to that term
in section 178(2);
``(17) the term `vehicle' means any carriage or other
contrivance used, or capable of being used, as a means of
transportation on land, on water, or through the air; and
``(18) the term `passenger vessel' has the meaning given
that term in section 2101(22) of title 46, United States
Code, and includes a small passenger vessel, as that term is
defined under section 2101(35) of that title.''.
(c) Conforming Amendments.--
(1) Table of sections.--The table of sections at the
beginning of chapter 97 of title 18, United States Code, is
amended--
(A) by striking ``RAILROADS'' in the chapter heading and
inserting ``RAILROAD CARRIERS AND MASS TRANSPORTATION SYSTEMS
ON LAND, ON WATER, OR THROUGH THE AIR'';
(B) by striking the items relating to sections 1992 and
1993; and
(C) by inserting after the item relating to section 1991
the following:
``1992. Terrorist attacks and other violence against railroad carriers
and against mass transportation systems on land, on
water, or through the air.''.
(2) Table of chapters.--The table of chapters at the
beginning of part I of title 18, United States Code, is
amended by striking the item relating to chapter 97 and
inserting the following:
``97. Railroad carriers and mass transportation systems on land, on
water, or through the air...................................1991''.
(3) Conforming amendments.--Title 18, United States Code,
is amended--
(A) in section 2332b(g)(5)(B)(i), by striking ``1992
(relating to wrecking trains), 1993 (relating to terrorist
attacks and other acts of violence against mass
transportation systems),'' and inserting ``1992 (relating to
terrorist attacks and other acts of violence against railroad
carriers and against mass transportation systems on land, on
water, or through the air),'';
(B) in section 2339A, by striking ``1993,''; and
(C) in section 2516(1)(c) by striking ``1992 (relating to
wrecking trains),'' and inserting ``1992 (relating to
terrorist attacks and other acts of violence against railroad
carriers and against mass transportation systems on land, on
water, or through the air),''.
amendment no. 3871
(Purpose: To provide for enhanced Federal, State, and local enforcement
of the immigration laws)
On page 213, after line 12, add the following:
TITLE IV--IMMIGRATION ENFORCEMENT
SEC. 401. FEDERAL AFFIRMATION OF STATE AND LOCAL ASSISTANCE
IN ENFORCEMENT OF FEDERAL IMMIGRATION LAWS.
(a) In General.--Notwithstanding any other provision of law
and reaffirming the existing inherent authority of States,
law enforcement personnel of a State or a political
subdivision of a State have the inherent authority of a
sovereign entity to investigate, apprehend, arrest, detain,
or transfer to Federal custody aliens in the United States
(including the transportation of such aliens across State
lines to detention centers), in the course of carrying out
their routine duties for the purpose of assisting in the
enforcement of the immigration laws of the United States.
(b) Construction.--Nothing in this section shall be
construed to require law enforcement officers of a State or
political subdivision of a State to--
(1) report the identity of victims of, or witnesses to, a
criminal offense to the Secretary of Homeland Security; or
(2) arrest such victims or witnesses for immigration
violations.
SEC. 402. LISTING OF IMMIGRATION VIOLATORS IN THE NATIONAL
CRIME INFORMATION CENTER DATABASE.
(a) Provision of Information to NCIC.--
(1) In general.--Not later than 180 days after the date of
enactment of this Act, and continually thereafter, the Under
Secretary for Border and Transportation Security of the
Department of Homeland Security shall provide the National
Crime Information Center of the Department of Justice with
such information as the Under Secretary may have on--
(A) all aliens against whom a final order of removal has
been issued;
(B) all aliens who have signed a voluntary departure
agreement; and
(C) all aliens whose visas have been revoked.
(2) Circumstances.--The information described in paragraph
(1) shall be provided to the National Crime Information
Center regardless of whether--
(A) the alien received notice of a final order of removal;
or
(B) the alien has already been removed.
(b) Inclusion of Information in NCIC Database.--Section
534(a) of title 28, United States Code, is amended--
(1) in paragraph (3), by striking ``and'' at the end;
(2) by redesignating paragraph (4) as paragraph (5); and
(3) by inserting after paragraph (3) the following:
``(4) acquire, collect, classify, and preserve records of
violations of the immigration laws of the United States;
and''.
(c) Permission To Depart Voluntarily.--Section
240B(a)(2)(A) of the Immigration and Nationality Act (8
U.S.C. 1229c(a)(2)(A)) is amended by striking ``120'' and
inserting ``30''.
SEC. 403. FEDERAL CUSTODY OF ILLEGAL ALIENS APPREHENDED BY
STATE OR LOCAL LAW ENFORCEMENT.
(a) In General.--Section 241 of the Immigration and
Nationality Act (8 U.S.C. 1231) is amended by adding at the
end the following:
``(j) Custody of Illegal Aliens.--
``(1) In general.--If the chief executive officer of a
State or, if appropriate, a political subdivision of the
State, exercising authority with respect to the apprehension
of an illegal alien submits a request to the Secretary of
Homeland Security that the alien be taken into Federal
custody, the Secretary of Homeland Security--
``(A) shall--
[[Page S10241]]
``(i) not later than 48 hours after the conclusion of the
State charging process or dismissal process, or if no State
charging or dismissal process is required, not later than 48
hours after the illegal alien is apprehended, take the
illegal alien into the custody of the Federal Government and
incarcerate the alien; or
``(ii) request that the relevant State or local law
enforcement agency temporarily incarcerate or transport the
illegal alien for transfer to Federal custody; and
``(B) shall designate at least 1 Federal, State, or local
prison or jail, or a private contracted prison or detention
facility, within each State as the central facility for that
State to transfer custody of the criminal or illegal alien to
the Secretary of Homeland Security.
``(2) Reimbursement.--
``(A) In general.--The Department of Homeland Security
shall reimburse States and political subdivisions for all
reasonable expenses, as determined by the Secretary of
Homeland Security, incurred by a State or political
subdivision in the incarceration and transportation of an
illegal alien as described in subparagraphs (A) and (B) of
paragraph (1).
``(B) Cost computation.--Compensation provided for costs
incurred under subparagraphs (A) and (B) of paragraph (1)
shall be the sum of--
``(i)(I) the average cost of incarceration of a prisoner
per day in the relevant State, as determined by the chief
executive officer of a State, or, as appropriate, a political
subdivision of the State; multiplied by
``(II) the number of days that the alien was in the custody
of the State or political subdivision; and
``(ii) the cost of transporting the criminal or illegal
alien--
``(I) from the point of apprehension to the place of
detention; and
``(II) if the place of detention and place of custody are
different, to the custody transfer point.
``(3) Authorization of appropriations.--There are
authorized to be appropriated such sums as may be necessary
to carry out paragraph (2).''.
amendment no. 3870
(Purpose: To make information sharing permanent under the USA PATRIOT
ACT)
At the appropriate place, insert the following:
SEC. __. PERMANENT INFORMATION SHARING.
Section 224 of the USA PATRIOT ACT (Public Law 107-56) is
amended by--
(1) striking ``203(a), 203(c)'' and inserting ``203''; and
(2) inserting ``218,'' after ``216,''.
Mr. SESSIONS. Mr. President, these amendments deal with important
matters in a number of areas. I will provide more information at the
appropriate time about them. I just note that one thing we certainly
need to do--I believe there is uniform agreement on this--is that the
provisions that deal with the wall between the FBI and CIA, basically,
between domestic enforcement and foreign intelligence--that has been
identified as one of the primary reasons we did not coordinate our
intelligence effectively prior to 9/11--that that wall that we have
temporarily removed be removed permanently. That is one of the
provisions I suggested in these amendments that have been called up. We
will go into more detail as time goes by.
I thank Senator Lieberman for his thoughtful comments, as always. He
is very astute in the history and development of intelligence and his
interest in the security of the United States is not surpassed in this
body. I would say that my concerns are numerous about the legislation
in general. Sometimes it is like when you are getting ready to buy that
new car or new house and you get the pen in your hand and angst arises
because you are afraid to sign it. But when you do sign it, everything
goes along fine and it wasn't nearly as bad as you thought. That could
be what we are dealing with.
Also, maybe there are some reasons to be concerned about buying this
house or this automobile; perhaps because it is a lemon. Maybe we don't
have the money. Maybe this isn't the best way to do it. I am concerned
about governmental bureaucracy and the real possibility that we will
make it worse.
As a Federal prosecutor for 12 years, I worked to try to coordinate
all the Federal agencies involved--for example, in drug law
enforcement. In Mobile, AL, under the Treasury Department, you had the
IRS and they would do financial investigations of drug dealers. The
Customs officers were at the ports and they did investigations of drug
dealers who shipped in through the ports. They had a lot of abilities--
remarkable ability, really, to help in those instances. You had the
Department of Alcohol, Tobacco, and Firearms, also part of Treasury.
And ATF often got involved in drug cases, although it didn't have
direct jurisdiction in such cases. On the other side, you had the
Department of Justice, and you had the U.S. Marshal Service and, of
course, the U.S. Attorney, FBI, DEA, and Immigration Service. Then,
before it went into Homeland Security, the Coast Guard, a part of the
Transportation Department, which patrolled the Gulf of Mexico and
frequently stopped boats loaded with drugs. They were all independent
agencies. I would try to get them to work together and at times it was
very difficult, but we made great progress.
How did it happen that we made progress in cooperation during the
years that I was an U.S. Attorney? I have thought about it. There was
not any major reorganization. In fact, there was no real reorganization
of the Government. Ronald Reagan declared a war on drugs, and, we had a
war on drugs. It raised the attention level of every Government agency.
He said that we will cooperate with one another. The Attorney General
of the United States, William French Smith, hired a young, aggressive,
talented prosecutor and made him third in command at the Department of
Justice, the associate Attorney General, and he directed him to work
with the U.S. attorneys and every agency in the Government to make sure
they cooperated and worked together to deal with the war on drugs. That
young prosecutor, Mr. President, is well known today. It was Rudy
Giuliani. He made things happen. People knew he spoke for the President
and we made tremendous progress.
If there was a discussion about how to investigate a major drug gang,
and the FBI didn't cooperate with Customs or the DEA was unhappy with
Customs or the FBI, the U.S. attorney could just call up somebody in
Washington and say: Look, these guys are fighting over bureaucratic
turf. We have a case we need to prosecute, and we need to work
together. It worked. The turf battles would end. Things happened in an
extraordinary way. There was no new bureaucracy established. That is
all I am saying. No new entity was established to create coopertion.
A number of years later, in order to obtain more coordination,
Congress, after much debating and ballyhoo, created a drug czar, and
that was supposed to coordinate these activities.
The drug czar has some interesting powers, and the model of the drug
czar might not be bad for this entity, for the challenge of improving
our intelligence capabilities. The drug czar has the responsibility to
get with every department and agency of the Government and to write,
with their input, a plan to fight drugs in America. He does that. They
all sign off on it.
Then the drug czar, before the budget request of each one of these
agencies goes to the Office of Management and Budget, approves their
budget, and if he concludes they are not funding or not asking for
funds to carry out the agreement they signed, then he has the ability
to object and block that budget. It eventually goes to the President if
there is a dispute. But the drug czar has quite a bit of power. It is a
small office compared to the other major departments and agencies in
the Government. We have to be careful with this legislation that we are
not creating another layer of Government.
Mr. McLaughlin, who was the Acting Director of the CIA before Mr.
Goss was confirmed, appeared before Senator Warner's Armed Services
Committee. Chairman Warner asked him a number of questions. One of the
things he said that was important to me as a person who has been
involved in dealing with Government agencies and knows how people pass
the buck and how they cover their own problems--all tendencies that are
natural inclinations of governmental entities--I have been there; I
know it--Mr. McLaughlin said: I think we need to ask ourselves a couple
of questions. One is, who will brief the President of the United States
on matters involving intelligence? Who is going to tell the President
whether there are weapons of mass destruction in Iraq? Right now, it is
clear the CIA Director does that.
The second question is, who will be responsible if it is wrong? Today
that is clear still. It is the CIA Director.
We do not have the same CIA Director that we did. He told the
President it was a slam dunk that WMD products were in Iraq, and
apparently they were not, or at least we have not found them, which is
more accurate. And he no longer holds the office.
[[Page S10242]]
If we come up with a new organization that organization leaves it
less clear who is responsible for stating the intelligence situation of
the United States to the President, and we make it even less clear who
can be held responsible, then we have not made progress.
My colleagues say the national intelligence director can do it. He
could. Where does he get his information? Is he going to interview the
CIA and then repeat what the CIA told him to the President? And then if
he is wrong, will he say: It wasn't my fault; the CIA told me that? We
get into a little bit of a mess here.
The idea of having an enhanced unification of intelligence-gathering
capability and dissemination of intelligence appeals to me very much. I
remain somewhat confused how we should do it, however. I just do not
know what is the best way to do it.
I so much appreciate the time Senator Collins and Senator Lieberman
have put into this legislation. I know it has many good things in it,
but I am just not sure how much progress we will have made when we do
this because we know what the real problems are: we did not have enough
linguists; we had legal walls between intelligence agencies. We have
taken those down. At the President's leadership and insistence, we are
bringing in more human intelligence, a critical need, and we are
bringing in more foreign language speakers at an incredible new rate.
We are moving more aggressively than we ever have against al-Qaida.
Three-fourths of them have been captured or killed. We have made
progress all over the world. We have enhanced our partnerships with not
only our agencies within the United States but around the world. It is
not appropriate to mention or talk about all the cooperation we are
getting from agencies of other nations, foreign intelligence agencies.
They are sharing with us much better. A lot of things are going well.
I think it is fair to say the military feels the intensity of the
leadership from the President on down has forced, such as Rudy Giuliani
and President Reagan did on the war on drugs, a lot better cooperation
between intelligence entities today. The DOD people know the people in
the CIA. CIA and the FBI are meeting daily with Homeland Security. And
those people know each other's names. They have had months of
partnerships working together. The system is working, and I am afraid
if we reorganize all this, it may look good on paper, but the personal
relationships that have caused confidence to be built up may be
undermined. If that were to happen, in the middle of a war, we would
not be proud of ourselves.
I thank the Chair. Those are thoughts and concerns I have. I love
this country. I know we are in a dangerous period. This struggle
against terrorism will continue for decades--for decades it will
continue--and the key to victory is intelligence and identifying these
dangerous cells before they attack us.
I think we are discussing an important issue. I thank the people who
have worked so hard on it. I yield the floor.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. Mr. President, I wish to compliment our distinguished
colleague. He has spent a lot of time on the Senate Armed Services
Committee. He is very familiar with these processes and the people.
We can write the laws as best we can, but it comes down very often to
those human relationships to which he referred and this particular
framework in the NID. Because the NID cannot, as the distinguished
chairman has said, create a whole new department, he has to rely on
subordinates who have direct line of authority over a lot of troops,
but he is not going to have troops in the sense the Senator from
Alabama and I have used them for the departments and agencies of the
Government as they function today. He is a step removed.
Those personal relationships with his immediate subordinates and
advisers are going to be very important. I thank the Senator.
Mr. President, at this time, if it is convenient to the managers, I
will proceed on an amendment.
Amendment No. 3876
Mr. WARNER. Mr. President, I send to the desk an amendment and ask
for its consideration.
The PRESIDING OFFICER. Without objection, the pending amendments are
set aside. The clerk will report.
The legislative clerk read as follows:
The Senator from Virginia [Mr. Warner], for himself, Mr.
Stevens, and Mr. Inouye, proposes an amendment numbered 3876.
The amendment is as follows:
(Purpose: To preserve certain authorities and accountability in the
implementation of intelligence reform)
On page 213, insert after line 8, the following:
SEC. 352. PRESERVATION OF AUTHORITY AND ACCOUNTABILITY.
Nothing in this Act, or the amendments made by this Act,
shall be construed to impair and otherwise affect the
authority of--
(1) the Director of the Office of Management and Budget; or
(2) the principal officers of the executive departments as
heads of their respective departments, including, but not
limited to--
(A) the authority of the Secretary of State under section
199 of the Revised Statutes (22 U.S.C. 2651) and the State
Department Basic Authorities Act;
(B) the authority of the Secretary of Energy under title II
of the Department of Energy Organization Act (42 U.S.C.
7131);
(C) the authority of the Secretary of Homeland Security
under section 102(a) of the Homeland Security Act of 2002 (6
U.S.C. 112(a));
(D) the authority of the Secretary of Defense under
sections 113(b) and 162(b) of title 10, United States Code;
(E) the authority of the Secretary of the Treasury under
section 301(b) of title 31, United States Code;
(F) the authority of the Attorney General under section 503
of title 28, United States Code; and
(G) the authority of the heads of executive departments
under section 301 of title 5, United States Code.
On page 213, line 9, strike ``352.'' and insert ``353.''.
Mr. WARNER. Mr. President, I refer to the September 28, 2004
Statement of Administration Policy in which the administration
expresses their support for the very able work of the distinguished
chairman and ranking member on S. 2845.
However, equally important are a number of items that were referred
to in this document called the SAP. I draw the attention of my
colleagues to the last paragraph. I shall read the first sentence:
The Administration notes that the Committee bill did not
include Section 6 (``Preservation of Authority and
Accountability'') of the Administration's proposal.
I ask unanimous consent that the entire paragraph from the SAP be
printed in its entirety in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
The Administration notes that the Committee bill did not
include Section 6 (``Preservation of Authority and
Accountability'') of the Administration's proposal; the
Administration supports inclusion of this provision in the
Senate bill. The legislation should also recognize that its
provisions would be executed to the extent consistent with
the constitutional authority of the President: to conduct the
foreign affairs of the United States; to withhold information
the disclosure of which could impair the foreign relations,
the national security, deliberative processes of the
Executive, or the performance of the Executive's
constitutional duties; to recommended for congressional
consideration such measures as the President may judge
necessary or expedient; and to supervise the unitary
executive.
Mr. WARNER. Immediately following it, I ask unanimous consent that
section 6 to which it refers, drawn from the policy statement forwarded
by the administration in its efforts to give the very helpful advice
and counsel to the Senate--and I presume the House, as we are working
on this matter--be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
SEC. 6. PRESERVATION OF AUTHORITY AND ACCOUNTABILITY.
Nothing in this Act or amendments made by this Act shall be
construed to impair or otherwise affect the authority of: (1)
the Director of the Office of Management and Budget; or (2)
the principal officers of the executive departments as heads
of their respective departments, including, but not limited
to, under section 199 of the Revised Statutes (22 U.S.C.
2651), Title II of the Department of Energy Organization Act
(42 U.S.C. 7131), the State Department Basic Authorities Act
of 1956, as amended, section 102(a) of the Homeland Security
Act of 2002 (6 U.S.C. 112(a)), and sections 301 of title 5,
113(b) and 162(b) of title 10, 503 of title 28, and 301(b) of
title 31, United States Code.
Mr. WARNER. The amendment which the Senator has drawn here, myself,
[[Page S10243]]
Senator Stevens, and Senator Inouye as cosponsors, we have lifted
essentially the language of that into the amendment such that the
administration's request in that SAP document is met.
In support for the action I am taking, I refer as follows: The
President made two basic decisions with respect to intelligence reform
designed to implement the 9/11 Commission recommendations. First, he
decided that the national intelligence director should have ``full
budget authority'' with respect to the national foreign intelligence
program. The bill before us contains a number of provisions intended to
carry out that decision.
Second, the President made an equally important decision that the
heads of the departments should continue to be in charge of and
therefore continue to be accountable for the performance of their
respective departments.
This amendment I have submitted would carry out the second
Presidential goal.
The language of the amendment, as I said, is virtually identical to
the language of the administration's proposal which I have now placed
into the Record.
The amendment makes clear that the principal officers of the
executive departments will remain as the organic statutes, for their
departments currently provide the heads of their departments with
authority over and responsibility for those departments.
The amendment also preserves the existing authority of the Director
of Office of Management and Budget with respect to the budget
administrative and legislative proposals.
With this amendment, the bill would provide for a strong national
intelligence director and would also ensure that the heads of executive
departments remain accountable for the performance of their
departments, including the intelligence elements of those departments.
It seems to me that is essential. Again, we come back to the basic
concept, we are not creating a new department of government.
Consequently, the NID has to rely on the department agency heads to
perform their services, and to do that they have to be put into a
position of accountability. That accountability is essential to the
smooth operation of the goals of this particular legislation.
A strong national intelligence director and accountable heads of
departments are compatible concepts. As part of their responsibility,
heads of the departments will be accountable for ensuring faithful
implementation by their departments' intelligence elements of the
guidance and tasking issued by the national intelligence director under
such authority as may be granted by the final draft of this
legislation.
The President gave a very clear example that illustrates the need for
this amendment when he discussed the intelligence reform on August 2,
2004. He said: The national intelligence director will work with the
respective agencies to set priorities, but let me make it also very
clear that when it comes to operations, the chain of command will be
intact. When the Defense Department is conducting operations to secure
the homeland, there will be nothing between the Secretary of Defense
and me.
Consequently, I would add one other thought. The chief of staff
thereafter echoed on the quote: We do not want to do anything that
would undermine the chain of command and the responsibilities that go
with the Department of Defense, Director of the Central Intelligence
Agency, the Secretary of the Homeland Security Department, and other
intelligence agencies, the Attorney General, for example.
I am certain they meant to include the Department of State.
This amendment carries out that objective.
I would be interested in the comments of the chairman and the ranking
member, and I yield the floor.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. LIEBERMAN. Mr. President, taking a look at this amendment, I say
to my friend from Virginia it may be that we can work this one out
together because I believe we have a common interest, which is by the
changes we are making in law, creating the national intelligence
director, not to otherwise alter the authority of various department
heads--State, Energy, Homeland Security, Defense, et cetera, that the
Senator has enumerated--but clearly the underlying Collins-Lieberman
bill does alter some of those authorities by creating authority in the
national intelligence director.
Except for that, I do not think there is any intention to otherwise
undercut. So the language is a bit worrisome on first look, which is
that nothing in the act shall be construed to impair or otherwise
affect the authority of these officers.
Well, we do want to affect the authority to the extent stated in the
Collins-Lieberman proposal, but not otherwise.
Mr. WARNER. Mr. President, I would have to reflect on that because it
seems to me the Senator is trying to have it both ways, and I am sure
my distinguished colleague would not be seeking that goal.
Mr. LIEBERMAN. No, I am not. But if I might say briefly--
Mr. WARNER. Let me repeat that. I did not have the microphone on.
Mr. LIEBERMAN. That should be on the record.
Mr. WARNER. I say that the distinguished Senator is trying to have it
both ways.
Mr. LIEBERMAN. I want my denial of that intention to also be in the
Record.
Mr. WARNER. Fine.
So what is the proposal of the Senator?
Mr. LIEBERMAN. Well, I think we should reason together a little bit
on this. In other words, I am concerned, in the broadest reading of
this, this amendment could be read to undercut everything else the bill
does. I do not believe the Senator would intend to do that.
Mr. WARNER. That is not my intention.
Mr. LIEBERMAN. Right. But only, if I understand it, to protect the
authority of the departments except as we specifically alter them in
the bill.
So, for instance, the national intelligence director will have
certain budget authorities or transfer authorities under the bill, as
it exists, which do alter the authority of some of those constituent
departments--State, Energy, Homeland Security, Defense, et cetera. I
would not want this language to obviate the impact of all of those
changes.
Mr. WARNER. Yes, but let's work around it and be very mindful of the
President's language. He said: Equally important that the heads of the
departments should continue to be in charge of and therefore continue
to be accountable for the performance of their respective departments.
Mr. LIEBERMAN. Right.
Mr. WARNER. Then I read his direct quotation, which seems to me we
have translated into this amendment in good faith.
Mr. LIEBERMAN. If I might, I hear what the Senator is saying, and
this goes back to the debate we have had off and on over the 5 days in
which we have been on the bill. Let us take the Department of Defense,
because that is a concern we have that has been expressed. This was
something we argued with regard to the so-called Specter amendment
which would have created line authority in the national intelligence
director over all the constituent intelligence agencies, including
those in the Department of Defense. Senator Collins and I argued we do
not want to go that far. We want the Secretary of Defense to maintain
line authority over NSA, NRA and NGA. On the other hand, we do want--
and we may argue this on another amendment--the national intelligence
director to be able to have the budget authority we give him and have
the transfer authority, et cetera.
Maybe we are heading in the same direction. I think this is one we
can try to work out.
Mr. WARNER. Obviously you tried to express the good intentions of
trying to work this out. Certainly I desire to do so. But we must be
very careful, under the extraordinary circumstances under which this
very important piece of legislation is being put together. I am sure
lots of work will take place over the weekend, but Monday and Tuesday
are days in which certainly this bill, in its construction, is likely
to be completed. We have to be careful that we do not create gaps in
it, where a department head now can say: Look, the
[[Page S10244]]
bill took that authority away. If a problem occurred, that is the NID's
problem. And then the NID says: Oh, no, that is your problem on your
account. We just cannot have finger-pointing when it comes to issues as
important as our Nation's intelligence.
Mr. LIEBERMAN. Just a final word: We have been quite focused and
specific when we have granted authority to the national intelligence
director. So, therefore, all the other authorities the law gives to the
various department heads enumerated in the Senator's amendment would
not be affected. I see that language--perhaps we should consult with
the representatives of the White House, too, to find out what their
particular concern was.
We have amended the authority, or even affected the authority of the
existing departments, along the margins here.
Mr. WARNER. I think that consultation would be helpful. I have
undertaken it in connection with this amendment. I believe my views are
consistent with theirs. But an awful lot of work has gone on now. It
may be that there is some refinement that would further strengthen
this.
For the moment, if the distinguished chairman wishes to speak, I will
be happy to hear it and we will just put the amendment to one side.
I would like to come back this afternoon to modify an amendment that
is at the desk, again, to clarify that in hopes that it comes near to
what your goals are.
I will be back. If the chairman could advise me, is there going to be
further time?
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Mr. President, I believe we will be here for another
hour, approximately--until 5 o'clock.
Mr. WARNER. That should be adequate time.
Ms. COLLINS. Before the Senator from Virginia leaves, I think we have
the same goal in this amendment. But I think to make sure that this
amendment is interpreted as I believe we would all have it interpreted,
we need to add language at the beginning that says something like:
Except as specifically set forth in this act, nothing herein or
amendments made by this amendment shall be construed to impair or
otherwise affect the authority of it.
That way it would be clear that in this provision we are not
affecting the other authorities of these departments, but neither are
we wiping out what this legislation has done.
Mr. WARNER. Mr. President, I fully understand the import of the
language you are quoting. But that is almost putting a blessing on
everything that is written into the bill. I am not sure I am prepared
as yet to say that. That is going to require a little study on the part
of both of us because I think the effect of your language is, don't
touch the bill, but what the bill leaves they are accountable for. That
has to be thought through.
Ms. COLLINS. Mr. President, obviously we do want to preserve what is
in the bill. That is why we are doing the bill.
Mr. WARNER. I understand that.
Ms. COLLINS. If the intent of the Senator is to override the
provisions of the bill, then that would be a problem.
Mr. WARNER. We are trying to make certain just that undefined but all
important concept of accountability remains. As you possibly take
portions of the responsibility of department heads away and give it to
the NID, I want to make sure, if something goes wrong, who is
accountable.
We will work. I understand your perspective, but I am not prepared,
as yet, to accept that amendment. So we will lay this aside. I thank
you.
Mr. President, I am prepared to go ahead with the other matter, if I
might.
Amendment No. 3877, As Modified
Mr. President, I would like at this time to send to the desk a
modification to amendment No. 3877 by the Senator from Virginia.
The PRESIDING OFFICER. The amendment is pending and is so modified.
The amendment (No. 3877), as modified, is as follows:
On page 40, strike line 13 and all that follows through
page 42, line 25, and insert the following:
(a) National Intelligence Director Recommendation or
Concurrence in Certain Appointments.--With respect to any
position as head of an agency or organization within the
intelligence community--
(1) if the appointment to such position is made by the
President, any recommendation to the President to nominate or
appoint an individual to such position shall be accompanied
by the recommendation of the National Intelligence Director
with respect to the nomination or appointment of such
individual to such position; and
(2) if the appointment to such position is made by the head
of the department containing such agency or organization, the
Director of the Central Intelligence Agency, or a subordinate
official of such department or of the Central Intelligence
Agency, no individual may be appointed to such position
without the concurrence of the National Intelligence
Director.
(b) Presidential Authority.--This section, and the
amendments made by this section, shall apply to the fullest
extent consistent with the authority of the President under
the Constitution relating to nomination, appointment, and
supervision of the unitary executive branch.
(c) Conforming Amendments.--(1) Section 201 of title 10,
United States Code, is amended--
(A) by striking subsection (a);
(B) by redesignating subsections (b) and (c) as subsections
(a) and (b), respectively;
(C) by striking ``Director of Central Intelligence'' each
place it appears and inserting ``National Intelligence
Director'';
(D) in subsection (a), as so redesignated--
(i) in paragraph (1)--
(I) by striking ``seek'' and inserting ``obtain''; and
(II) by striking the second sentence; and
(ii) in paragraph (2)--
(I) by redesignating subparagraphs (B) and (C) as
subparagraphs (C) and (D), respectively; and
(II) by inserting after subparagraph (A) the following new
subparagraph (B):
``(B) The Director of the Defense Intelligence Agency.'';
and
(E) in paragraph (2) of subsection (b), as so
redesignated--
(i) by redesignating subparagraphs (B) and (C) as
subparagraphs (C) and (D), respectively; and
(ii) by inserting after subparagraph (A) the following new
subparagraph (B):
``(B) The Director of the Defense Intelligence Agency.''.
(2)(A) The heading of such section is amended by striking
``consultation and''.
(B) The table of sections at the beginning of subchapter II
of chapter 8 of such title is amended in the item relating to
section 201 by striking ``consultation and''.
Mr. WARNER. Mr. President, earlier today I engaged in a colloquy and
submitted the original form of this amendment. Subsequent thereto, I
had the opportunity to consult with a number of individuals. It is my
desire now, basically, to revise my amendment to comport with section
106 of the President's proposal, which he forwarded to the Senate. That
is entitled:
Appointment of officials responsible for intelligence-
related activities. Requirement for National Intelligence
Director concurrence with respect to certain appointments,
with respect to any positions that heads of agency or
organization within the intelligence community. . . .
My concern, what I am trying to achieve by this succession of
amendments, is to provide some uniformity in the process designating
and selecting the heads of the various--for example, the combat
commands, as I refer to them, that was the subject of my earlier
amendment.
I find that the President's approach in the proposal that he
forwarded to the Senate is preferable to my earlier attempt at this. It
reads:
If the appointment to such position is made by the
President, any recommendation to the President to nominate or
appoint an individual to such position shall be accompanied
by the recommendation of the National Intelligence Director
with respect to the [proposed] nomination or appointment. . .
.
(2) if the appointment to such position is made by the head
of the department containing agency or organization [within
the intelligence community or] the Director of the Central
Intelligence Agency, or a subordinate official of such
department or of the Central Intelligence Agency, no
individual shall be appointed to such position without the
concurrence of the National Intelligence Director.
I believe that, then, confirms there is a certain degree of
uniformity and preservation of accountability for the people selected
in the various heads of the departments and the agencies.
With that, I will yield the floor for such comment as may be
forthcoming from the chairman and ranking member.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
[[Page S10245]]
Mr. SESSIONS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Allen). Without objection, it is so
ordered.
Mr. SESSIONS. Mr. President, I see the distinguished chairman of the
Armed Services Committee. I know he was present when Mr. McLaughlin was
Acting Director of the CIA and he testified, along with a number of
distinguished Government officials, including the Secretary of Defense.
He made clear one point. I mentioned it earlier. He said that in any
reorganization, it needs to be clear where the responsibility and
accountability lies.
He asked the question, who will brief the President, and, in fact,
who will be held accountable if he briefs the President incorrectly?
I see Senator Warner, and I would like to ask the bill managers,
also, but my question to Senator Warner is, from his study of the bill,
which is more extensive than mine, does he think there is any clear
answer in this legislation that is moving forward to the question asked
by Mr. McLaughlin? Who briefs the President and who is responsible if
he is in error?
Mr. WARNER. I thank my colleague for the question because earlier
today I had a number of discussions related to this question. I talked
to some of the White House people. I think I have spoken in the Chamber
a number of times about my concern as to the future posture, standing,
of this Director of Central Intelligence. He has this magnificent
organization, albeit there was a problem on the weapons of mass
destruction, but in terms of numbers it was a relatively minute number
of people, although the problem is very serious. The organization is
all over the world and they are taking risks, extraordinary in some
instances, comparable to the men and women in uniform of the Armed
Forces as they pursue their assignments.
It is my concern in this reorganization where the director of
intelligence now becomes a subordinate, and a decision is to be made by
the President, in this legislation it appears to be the case he will
not be at the moment on the council--are you familiar with the council
of the Secretaries of State and Defense, Attorney General, Homeland
Security, and others, who will be sort of a close-knit group and NID
will be chairman of the council, and from time to time they will be
advising the President, presumably, through the NID? I have tried to
work it out so if, say, the Secretary of Defense has views at variance
with the NID at the time the NID briefs the President on the NID's
position, he is obligated by law to brief the President on the
divergent position of one or more members of his council. That is a
pending amendment. It is a joint intelligence communities council.
Anyway, I felt that perhaps somehow the Director of the CIA should be
involved. There is concern about protocol. It is all Cabinet. He, as
such, does not have Cabinet rank. I am working on a proposition to see
whether we can preserve the integrity that has been accumulated over
many years of the Director of the CIA. It is not only in the United
States; he is known all over the world as a person who holds that
position. I don't want to see any loss in the eyes of the counterparts
worldwide as this new structure, presumably, will be enacted into law.
The answer to the question is, of course, the President can have
whomever he wishes to brief him, but I presume NID is specifically
someone that the President asked the Congress to create by law. He
would be the principal briefer. From time to time he would be
accompanied perhaps by others and I think more often than not by the
Director of the CIA.
Given that it is the President's absolute authority to decide who he
wants to brief him, I don't think it should be written into law, but I
am seeking some clarification to the very question the Senator has
asked because it is of concern to me. As soon as I gain further
information, I will be happy to share it with my colleague.
Mr. SESSIONS. I thank Senator Warner for his comments. It does appear
if we pass this new procedure, we ought to understand who Congress
contemplates would be the person most likely to brief the President.
I think I understand what the Senator was saying. It is so important
that if the main person is going to be the NID, the national
intelligence director who does the briefing, it seems to me he or she
would have to reach down and take about half of the CIA up to be on his
staff to help him prepare the brief or else he will be regurgitating
what came from some other agency and then we have created a weakened
CIA, a muddled NID, and who is responsible. Is that a problem?
Mr. WARNER. Mr. President, the Senator is quite correct. We do not
want to do that.
In good faith, the chairman of the committee has repeatedly said, in
this Chamber, we are not creating a whole new department. I heard the
ranking member today mention that. Therefore, we would not in any way
be trying to create that number of persons.
Nevertheless, who knows them better--that is, the individual members
of the CIA--than the Director who has daily hands-on authority, who
travels and visits in posts all over the world, who is basically
responsible for their promotion, demotion, and accountability.
Mr. SESSIONS. The chairman is correct.
For the people following this debate, they need to know that the CIA
has operations in virtually every country in the world and it is from
those agents that much of our intelligence comes. It comes through the
CIA Director and he has always briefed the President as the Director of
Central Intelligence.
Mr. WARNER. And that fact is known, if I can say to my colleague,
that fact is known the world over, that the man who directs the CIA and
who is visiting in Great Britain or Pakistan, that is the man who will
go home and look the President of the United States straight in the
eye. That carries a lot of weight as it results in the creation of
personal relationships between the director of our intelligence and his
counterparts worldwide.
I do not think it is a subject that can be legislated in law. It is
something of legislative history being created in the Senate now and is
a vital part of the future interpretation and implementation of this
new law.
I thank the Senator.
Mr. SESSIONS. Would the distinguished managers of the bill, for whom
I have so much respect, care to comment on the question that Acting
Director McLaughlin posed at our hearing when he said one thing we had
to be clear about was who would be responsible for stating the
intelligence position of the United States to the President and who
would be held accountable if they were wrong. It is a question we need
to be clear about.
Mr. LIEBERMAN. It is a very important question and I am prepared to
give a very short and direct answer which I believe is reflected in the
bill, which is that the national intelligence director is explicitly
intended to be the principal intelligence advisor to the President of
the United States. There should be no doubt about that.
It will give him two roles: One as administrator of the intelligence
community--but then, why? To be the principal intelligence adviser to
the No. 1 user of intelligence, not the only one but the President of
the United States as Commander in Chief.
Mr. SESSIONS. I say to Senator Lieberman, I would share your view
that the President is the No. 1 customer of the intelligence that comes
forward. I think he may well need a No. 1 adviser to help assimilate
all of it.
But let's go back now. Would it normally be that the person who walks
in there and looks the President in the eye--should not that person
have line, control, and supervision over the people who provided him
with that intelligence? And isn't that the only way he can be held
responsible for the brief and the opinions to the President, if he
obtained the information from sources that are accountable to him or
her?
Whereas, in this case, if the NID does it, and the information is
coming up through the vast CIA network around the world, as it most
often would be--not always but most often would be--then, isn't that a
weakness in our concept here?
Mr. LIEBERMAN. Mr. President, through you, of course, I say to the
Senator, I do not believe it is a weakness. Here is the judgment we had
to make: The Director of Central Intelligence now is effectively the
principal intelligence adviser to the President,
[[Page S10246]]
but as we have seen and stated over and over again in this debate, the
record shows that the DCI has not had enough authority to coordinate
the activities of the intelligence community to create the kind of
unity of effort that we need to make sure we do not have a repeat, at
worst, of September 11 and, in a very different way, of what everybody
acknowledges was an imperfect functioning of the intelligence community
prior to the Iraq war, as documented by the Senate Intelligence
Committee.
So we want to give him some authority, but we specifically rejected
what would effectively be a department of intelligence, taking NSA,
NRO, and NGA out of Defense, taking the counterterrorism out of the
FBI, Information Analysis out of the Department of Homeland Security,
et cetera, et cetera, making it a department.
We are trying to strike a balance where you preserve the autonomy of
those departments' line control, but you put them all together,
particularly in that counterterrorism center, so that the director is
hearing from all of them and is accountable, and then reports on these
intelligence matters to the President.
Incidentally, the Collins-Lieberman proposal does make clear--I will
just read from section 111:
The National Intelligence Director shall be responsible for
providing national intelligence--
(1) to the President;
(2) to the heads of other departments and agencies of the
executive branch;
Also consumers, the Defense Department the largest of the consumers.
(3) to the Chairman of the Joint Chiefs of Staff and senior
military commanders;
(4) to the Senate and House of Representatives and the
committees thereof;
(5) [and] to such other persons or entities as the
President shall direct.
So there is no question there is a balance. But I think it is a
balance that serves the Nation's interests well. We have power in the
NID, but we have not broken the line of authority in other Departments.
As I believe I heard Senator Warner say at one point, I presume the
national intelligence director, in the exercise of his
responsibilities, will, from time to time, bring with him to advise the
President the head of the CIA, the head of the Homeland Security
Department, whoever seems relevant on a given occasion, but to say that
for intelligence there is one person ultimately accountable, and that
is the national intelligence director.
Mr. SESSIONS. Well, I thank the Senator. I can see the concept there.
I guess in my own mind I am having difficulty understanding why we
should not raise up the CIA director and make sure that entity
exercises the power that it is supposed to have now. It is supposed to
be the central intelligence center for the country. And just to add
another office above it has a number of problems. As Senator Warner
said, there are agents all over the world gathering intelligence who
are responsible directly to the CIA Director, who then is supposed to
directly advise the President.
So I hope we will think about this problem as we go forward. If we
follow the model of the drug czar, I might feel a bit more comfortable.
The drug czar, the Office of National Drug Control Policy Director, as
I said earlier, requires that there be a written plan for combating
illegal drugs in the United States. Every agency involved in that
effort has to participate in drafting the plan and sign off on the plan
when it is agreed to. And then that Director, the drug czar, reviews
their budget request to make sure they are funding the effort in a
coordinated way and has the ear of the President if an entity or agency
refuses to cooperate.
But organizations have integrity. I do not think, in general, anyone
would argue that it is healthy governmental philosophy or political
science to have a person the head of an agency and then people under
him and parts of his budget be decided directly by somebody else, and
department heads have to be approved or appointed by other people. It
classically undermines responsibility. In America we have one
Government. And within the Government there are three parts. There are
the executive, judicial, and legislative branches. But we have created
so many fiefdoms in the executive branch it is hard to hold the
President accountable. The FBI Director has--what?--a 12-year term? So
it is hard to hold the President responsible for these entities. And
then you have Secretaries who do not even have control over the people
within their agencies.
So those are some of my concerns. As I said, it may be that
nervousness before you sign the deed on the new house. But, again, it
could be that some of these things may not work as well as we project
them to at this time.
Mr. LIEBERMAN. President, I, obviously, respect and appreciate the
concerns that my friend from Alabama has. I want to assure him that we
have been over this. And the two things--one, is that not just the 9/11
Commission but a lot of folks, not universally felt, but a lot of
people feel that the drug czar has not been all that the position could
have been because he did not have any budget authority. He formed the
budget but did not really have the muscle. As a matter of fact,
Governor Kean and Congressman Hamilton, in their report, specifically
said they did not want the national intelligence director to be like
the drug czar.
Second, one of the conclusions I gather from the Scowcroft Report,
but also others, including 9/11, is that what has happened up until now
is that the Director of Central Intelligence has basically been the
Director of the CIA--of course, the same person--and not had the time
or the clout to coordinate the rest of the intelligence community.
That is part of the failure prior to September 11. That is why we
specifically recommend breaking them in two, creating this director
over everybody. The CIA is an important part, but there are a lot of
other important parts. The FBI counterterrorism and the NSA, NRO, and
NGA, as the Senator well knows, in terms of numbers of employees and
the amount of the budget, are very big entities that, for now, have
been too much outside the control of the Director of Central
Intelligence.
So as I say, we have tried to balance. In some way, it might have
been neater to take all the pieces and put them under a new secretary
of intelligence, but then you really would have, for instance, broken
the chain of command in the Defense Department.
We didn't want to do that. We are trying to have a balance to say
when it comes to intelligence, there is one person accountable, and
that is the national intelligence director.
I thank the Senator. I think this kind of discussion is very
important to getting all of us to a point where we can not only proceed
with the amendments but go ahead and ultimately next week adopt the
bill and have a good feeling about it. Hopefully, we can lead the
Senator from Alabama over his buyer's anxiety right now.
Mr. SESSIONS. It is a difficult thing. I remember the story very
distinctly. There was an attempt to merge the FBI and DEA in the early
1980s. I wrote Associate Attorney General Giuliani a letter suggesting
what should be merged is DEA and Alcohol, Tobacco, and Firearms. I saw
him not long after that and he said: Jeff, we can't even merge agencies
within the Department of Justice, don't you know? To merge an agency in
Treasury with one of Justice is impossible.
While it is weird that we in the Congress and the President of the
United States are not capable of merging agencies, as a practical
matter, it is very difficult to do these things. I don't think most
people realize how our Government really functions. It has great
points. Some of the best people I have ever known serve in our
Government. But there are problems in making it efficient.
I thank the managers for their leadership and hard work.
Mr. LIEBERMAN. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. LIEBERMAN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LIEBERMAN. Mr. President, I ask unanimous consent that the
pending amendment be temporarily set aside.
The PRESIDING OFFICER. Without objection, it is so ordered.
[[Page S10247]]
Modification to Amendment No. 3807
Mr. LIEBERMAN. Mr. President, I call up again amendment No. 3807
offered by Senator McCain and myself.
The PRESIDING OFFICER. The amendment is now pending.
Mr. LIEBERMAN. I thank the Chair.
Mr. President, I am pleased to send to the desk a modification to the
amendment which is essentially a change of one word. I believe having
made that one-word change, this amendment implements another section of
the 9/11 Commission Report and is acceptable on both sides.
I thank my dear friend and colleague, Senator Collins, for all the
work we have done together on this amendment, and with other
stakeholders who had some concerns about the amendment, generally
supported it, and we have worked them all out.
The PRESIDING OFFICER. The amendment will be so modified.
The modification is as follows:
of applicants for such licenses or identification cards.
(C) Time requirement.--The process described in
subparagraph (A) shall be conducted in a timely manner to
ensure that--
(i) any recommendation for a proposed rule or report is
provided to the Secretary of Transportation not later than 9
months after the date of enactment of this Act and shall
include an assessment of the benefits and costs of the
recommendation; and
(ii) a final rule is promulgated not later than 18 months
after the date of enactment of this Act.
(c) Grants to States.--
(1) Assistance in meeting federal standards.--Beginning on
the date a final regulation is promulgated under subsection
(b)(2), the Secretary of Transportation shall award grants to
States to assist them in conforming to the minimum standards
for driver's licenses and personal identification cards set
forth in the regulation.
(2) Allocation of grants.--The Secretary of Transportation
shall award grants to States under this subsection based on
the proportion that the estimated average annual number of
driver's * * *.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Mr. President, I thank my colleague from Connecticut and
my colleague from Arizona, Senator McCain, for working with me to
address concerns that have been raised by the National Governors
Association regarding the provisions in the McCain-Lieberman amendment
that dealt with the standardization of State drivers' licenses. I
believe the change which has been made, which will require an
assessment of the cost benefits of any new requirements, is an
important one.
I ask unanimous consent that two letters from the National Governors
Association be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
National Governors
Association,
Washington, DC, October 1, 2004.
Hon. Susan Collins,
U.S. Senate,
Washington, DC.
Dear Senator Collins: On behalf of the nation's Governors I
am writing to thank you for your efforts in negotiating a
compromise on amendment language regarding minimum standards
for state driver's licenses. I know that you share Governors'
concerns regarding the security and integrity of state
driver's license and identification processes and appreciate
the difficulties that federal mandates, particularly unfunded
mandates, placed on states.
Due in large part to your concern regarding the mandates in
the McCain/Lieberman driver's license amendment, NGA was able
to make suggestions to improve the measure. We understand
that a provision has been added to require that the
negotiated rulemaking committee perform an assessment of the
benefits and costs of its recommendations. This change is
essential to help ensure that the federal government provides
adequate funding to states to implement the required
mandates.
Governors are committed to working cooperatively with the
federal government to develop and implement realistic,
achievable standards that will enhance efforts to prevent
document fraud and other illegal activity related to the
issuance of driver's licenses and identification documents.
We appreciate your willingness to work with states to address
our concerns. With all the changes included in the amendment,
it will provide a reasonable compromise for addressing this
issue.
Thank you again for your consideration and assistance. We
look forward to working with you during conference.
Sincerely,
Raymond C. Scheppach,
Executive Director.
____
National Governors
Association,
Washington, DC, October 1, 2004.
Hon. John McCain,
U.S. Senate,
Washington, DC.
Hon. Joseph I. Lieberman,
U.S. Senate,
Washington, DC.
Dear Senator McCain and Senator Lieberman: Governors share
your concerns regarding the security and integrity of state
driver's license and identification processes. While NGA
opposes federal mandates on states, particularly unfunded
mandates, we appreciate your willingness to work with states
to improve your amendment regarding minimum requirements for
state driver's licenses. As you know, NGA strongly opposes
the more proscriptive driver's license mandate provisions
under consideration in the House.
It is my understanding that your original amendment has
been modified to include two important changes: (1)
clarification that the standards that will be set in the
rulemaking process will initially apply only to newly-issued
and reissued driver's licenses; and (2) a requirement that
state elected officials, including Governors, serve on the
negotiated rulemaking committee. In addition, we request that
a provision be added to require that the negotiated
rulemaking committee perform an assessment of the annual
benefits and costs of its recommendations.
The first two changes are vital to ensuring that the
minimum requirements established under the amendment are
workable, do not unnecessarily interfere with existing state
laws and improvements, and benefit from the expertise and
knowledge of state officials. Likewise, the last change is
essential to help ensure that the federal government provides
adequate funding to states to implement the required
mandates.
Governors are committed to working cooperatively with the
federal government to develop and implement realistic,
achievable standards that will enhance efforts to prevent
document fraud and other illegal activity related to the
issuance of driver's licenses and identification documents.
We appreciate your willingness to work with states to address
our concerns. If all three changes are included in the
amendment it will provide a reasonable compromise for
addressing this issue.
Thank you again for your consideration and assistance.
Sincerely,
Raymond C. Scheppach,
Executive Director.
Ms. COLLINS. Mr. President, I urge adoption of the modified
amendment.
The PRESIDING OFFICER. Is there further debate?
Without objection, the amendment is agreed to.
The amendment (No. 3807), as modified, was agreed to.
Ms. COLLINS. I thank the Chair.
The PRESIDING OFFICER. The Senator from Kansas.
Mr. BROWNBACK. Mr. President, I thank my colleagues for their work on
intelligence reform. I want to make a few remarks on the intelligence
reform bill.
I am supportive of the overall efforts of the Governmental Affairs
Committee, what my colleague from Kansas, Senator Roberts, and my
colleague from West Virginia, Senator Rockefeller, are doing as well on
intelligence reform, and I want to support this overall effort.
Before I proceed, it is important to underscore why this is such an
important debate in the United States, especially when it is so deeply
engaged in many places around the world and particularly in the Middle
East and Iraq. In the context of the underlying bill, we need to make
sure we clearly understand this.
There is some public uncertainty regarding these issues. As the
debate showed last night, we have fundamental differences even between
President Bush and Senator Kerry. But both agree, in my opinion, why
the U.S. commitment to Iraq is absolutely essential and why we must not
fail in Iraq or in this effort to reform our national intelligence.
For purposes of discussion, I recommend a rereading of Osama bin
Laden's declaration of war against the Americans. He issued this in
1998. It is in the 9/11 Commission Report and it is chilling, but it
tells you what is at stake in this debate.
He says this, and this is a direct quote from that declaration of
war:
The Defence Secretary of the Crusading Americans had said
that the explosions at Riyadh and Al-Khobar had taught him
one lesson: that is not to withdraw when attacked by cowardly
terrorists.
bin Laden continues:
We say to the Defence Secretary that his talk could induce
a grieving mother to laughter! And it shows the fears that
have enveloped you all. Where was this courage of yours when
the explosion in Beirut took place in 1983 . . . You were
transformed into scattered bits and pieces: 241 soldiers were
killed, most of them Marines.
[[Page S10248]]
bin Laden continues:
When tens of your soldiers were killed in minor battles and
one American pilot was dragged in the street of Mogadishu,
you left the area in disappointment, humiliation, and defeat,
carrying your dead with you.
Clinton appeared in front of the whole world threatening
and promising revenge, but these threats were merely a
preparation for withdrawal. You had been disgraced by Allah
and you withdraw; the extent of your impotence and weaknesses
became very clear.
As bin Laden had explained earlier in the declaration:
Efforts should be concentrated on destroying, fighting, and
killing the (American) enemy until, by the grace of Allah, it
is completely defeated.
The task is stated quite simply by bin Laden:
Killing Americans.
In June 2002, bin Laden spokesman, Suleiman Abu Gheith, placed this
statement on the al-Qaida Web site:
We have the right to kill 4 million Americans--2 million of
them children--and to exile twice as many and wound and
cripple hundreds of thousands.
He said that:
We have the right to kill 4 million Americans--2 million of
them children. . . .
What can we do to forestall these promised attacks? According to bin
Laden, if we follow what he says, we can forestall these promised
attacks if ``America should abandon the Middle East, convert to Islam
and end the immorality and godlessness of its society and culture,''
for according to bin Laden, ``It is saddening to tell you that you are
the worst civilization witnessed by the history of mankind.''
That is what we fight, and that is what we must stand strong against
and be as strong and as organized as we possibly can and have as good
intelligence as we possibly can to fight these fanatics.
These terrorists are fanatics. They are wrong about America, and
America will fight. They may be fanatics--and they are--but James
Schlesinger reminded us earlier this year in the Foreign Relations
Committee that they are deadly serious and thoroughly persistent.
We have to therefore anticipate we will be engaged in this global war
on terrorism for years to come and we must not waiver in this effort.
As Osama himself has said:
When the people see a strong horse and a weak horse, they
naturally gravitate towards the strong horse.
Therefore, we as a nation and as a body must do everything within our
means to demonstrate that we are not the weak horse. That is why
retreat before we have successfully stabilized Iraq is not an option.
Nothing was more dramatically visible throughout the Middle East and
elsewhere of our retreat than were those earlier retreats cited by
Osama bin Laden.
The debate over Iraq will continue, even after the election,
regarding the timing of our move into Iraq, but that is a moot issue.
We are there now and our soldiers are doing the best they can under
difficult circumstances. We will bring them home, but make no mistake
about the fact that we are anything but united in our determination to
persevere and to prevail in Iraq. Success is the only acceptable course
of action.
How then are we to be successful in sustaining order and stability in
Iraq and bringing order to the chaos that the terrorists can
potentially produce around the world? Only by embracing certain
fundamental realities. First and foremost, establishing reasonable
security is the prerequisite for achieving the goals of political
stability. We are doing that in Iraq and we are doing that in
Afghanistan. It is slow going and it is difficult, and there will be
bumps along the way.
Second, neither the American nor the coalition forces can by
themselves impose security on Iraq. Iraqis themselves must provide
indispensable support and their own security. Only Iraqis can gather
the intelligence to identify the regime remnants and foreign terrorists
who must be largely neutralized before adequate security can be
assured.
Moreover, it will be essential for Iraqi security forces to be the
principal elements in rooting out terrorists and destroying their
cells, with the coalition military increasingly in a supporting role.
Similarly, America must take charge of its own security in a way that
is consistent with the changed realities in our post-9/11 world. This
legislation we are debating, the first major overhaul of the
intelligence system, is a major step in that direction. We have the
capability, the ability, and the motive--our national security--to do
this now and to do it right.
As my colleague Senator Kyl from Arizona said yesterday, the problem
before 9/11 was not due to too much intelligence. The problem obviously
arose because we did not have enough intelligence, smart intelligence,
creative intelligence. We could not gather enough information in
a timely way to put together all of the possibilities in order to
connect the dots, in order to predict that a particular kind of attack
was going to occur on that day.
We have had a lot of good, constructive suggestions, from many
places, from the 9/11 Commission, from the Senate Intelligence
Committee, the great work of its chairman and my colleague Senator Pat
Roberts from Kansas, from the administration, from the work of the
Governmental Affairs Committee, Senator Rockefeller also on the
Intelligence Committee, from other commissions in trying to understand
why we did not have enough intelligence and why we could not put it all
together ahead of time.
Many of the recommendations of the Commission and legislative
solutions in the proposed bill try to correct that problem of not
having enough good intelligence and knowing precisely what we need to
do with the intelligence once we have it.
Most importantly, we need to find a way of bringing the creativity
and imagination back into the intelligence business. For too long, the
system has been hampered by bureaucracy that by design is risk averse
and unwilling to take the offensive. As Senator Kyl mentioned the other
day, if we look back at President Clinton's directives to the
intelligence community, he tried to be forward leaning, especially with
regard to al-Qaida and Osama bin Laden. But even though the President
himself seemed to say we have to do everything we can to try to get
these guys, he ran into bureaucratic barriers. Repeatedly, efforts were
made to bring to his attention operations that would have either
improved our intelligence or operationally deal with al-Qaida and Osama
bin Laden, but they were shot down by various portions or places within
the bureaucracy or lawyers within the system. If someone tried to do
something, somebody else said this is too risky, we cannot do it.
We have to change that mentality. That was why the 9/11 Commission,
the Senate Intelligence Committee, and many other observers have said
we have to get out of this paralyzing risk-averse environment where
people are afraid somebody is looking over their shoulders, is going to
jump on them if they do anything that is the least bit out of the
ordinary or risky. We have to get this bureaucratic mindset out because
our very security depends on it.
I thank the chairman of the Governmental Affairs Committee, Senator
Collins, for her great work on this, and the ranking member, Senator
Lieberman. I appreciate the important work of my colleagues Senator
Roberts and Senator Rockefeller, and I hope that we will speedily get
to a resolution so we can pass this important bill soon and change the
dynamic and make a safer America.
I yield the floor.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Mr. President, I thank the Senator from Kansas for his
generous comments and for presenting a very compelling case for passing
this legislation, a case that says we cannot delay; the stakes are too
high; the issues are too compelling in the war against terrorism. I
thank him for his support and for his hard work on this very important
issue.
I ask unanimous consent that the pending amendment be set aside.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendments Nos. 3798, 3799, 3800, 3911, 3912, 3932, 3864, 3772, 3813
and 3717, en bloc
Ms. COLLINS. Mr. President, I have a number of amendments from both
sides of the aisle that have been cleared by both of the managers of
the bill. I ask unanimous consent that we proceed to the consideration
of the following amendments, en bloc: Coleman
[[Page S10249]]
amendment 3798, Coleman amendment 3799, Coleman amendment 3800, Snowe
amendment 3911, Snowe amendment 3912, Snowe amendment 3932, Frist
amendment 3864, Bingaman amendment 3772, Reed of Rhode Island amendment
3813, and Feinstein amendment 3717.
The PRESIDING OFFICER. Without objection, it is so ordered. The
amendments are pending.
Ms. COLLINS. I ask unanimous consent that the amendments be agreed to
en bloc and that the motions to reconsider be laid upon the table.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendments were agreed to, as follows:
amendment no. 3798
(Purpose: To amend section 510 of the Homeland Security Act of 2002 to
ensure widespread access to the Information Sharing Network)
At the appropriate place, insert the following:
SEC. __. URBAN AREA COMMUNICATIONS CAPABILITIES.
Section 510 of the Homeland Security Act of 2002, as added
by this Act, is amended by inserting ``, and shall have
appropriate and timely access to the Information Sharing
Network described in section 206(c) of the National
Intelligence Reform Act of 2004'' after ``each other in the
event of an emergency''.
amendment no. 3799
(Purpose: To require the enterprise architecture and implementation
plan for the Information Sharing Network to include equipment and
training requirements and utilization costs)
On page 137, line 20, strike ``and'' and all that follows
through ``(9)'' on line 21, and insert the following:
(9) an estimate of training requirements needed to ensure
that the Network will be adequately implemented and property
utilized;
(10) an analysis of the cost to State, tribal, and local
governments and private sector entities for equipment and
training needed to effectively utilize the Network; and
(11)
amendment no. 3800
(Purpose: To find that the United States needs to implement the 9/11
Commission's recommendation to adopt a unified incident command system
and significantly enhance communications connectivity among first
responders)
At the appropriate place, insert the following:
(1) The United States needs to implement the
recommendations of the National Commission on Terrorist
Attacks Upon the United States to adopt a unified incident
command system and significantly enhance communications
connectivity between and among civilian authorities, local
first responders, and the National Guard. The unified
incident command system should enable emergency managers and
first responders to manage, generate, receive, evaluate,
share, and use information in the event of a terrorist attack
or a significant national disaster.
amendment no. 3911
(Purpose: To require a report on the methodologies utilized for
National Intelligence Estimates)
On page 210, between lines 22 and 23, insert the following:
SEC. 336. NATIONAL INTELLIGENCE COUNCIL REPORT ON
METHODOLOGIES UTILIZED FOR NATIONAL
INTELLIGENCE ESTIMATES.
(a) Report.--Not later than 180 days after the date of the
enactment of this Act, the National Intelligence Council
shall submit to Congress a report that includes the
following:
(1) The methodologies utilized for the initiation,
drafting, publication, coordination, and dissemination of the
results of National Intelligence Estimates (NIEs).
(2) Such recommendations as the Council considers
appropriate regarding improvements of the methodologies
utilized for National Intelligence Estimates in order to
ensure the timeliness of such Estimates and ensure that such
Estimates address the national security and intelligence
priorities and objectives of the President and the National
Intelligence Director.
(b) Form.--The report under subsection (a) shall be
submitted in an unclassified form, but may include a
classified annex.
On page 210, line 23, strike ``336.'' and insert ``337.''.
amendment no. 3912
(Purpose: To require an evaluation of the effectiveness of the National
Counterterrorism Center)
On page 210, between lines 22 and 23, insert the following:
SEC. 336. NATIONAL INTELLIGENCE DIRECTOR REPORT ON NATIONAL
COUNTER- TERRORISM CENTER.
(a) Report.--Not later than one year after the date of the
establishment of the National Counterterrorism Center under
section 143, the National Intelligence Director shall submit
to Congress a report evaluating the effectiveness of the
Center in achieving its primary missions under subsection (d)
of that section.
(b) Elements.--The report under subsection (a) shall
include the following:
(1) An assessment of the effectiveness of the National
Counterterrorism Center in achieving its primary missions.
(2) An assessment of the effectiveness of the authorities
of the Center in contributing to the achievement of its
primary missions, including authorities relating to personnel
and staffing, funding, information sharing, and technology.
(3) An assessment of the relationships between the Center
and the other elements and components of the intelligence
community.
(4) An assessment of the extent to which the Center
provides an appropriate model for the establishment of
national intelligence centers under section 144.
(c) Form.--The report under subsection (a) shall be
submitted in an unclassified form, but may include a
classified annex.
amendment no. 3932
(Purpose: Relating to alternative analyses of intelligence by the
intelligence community)
On page 153, between lines 2 and 3, insert the following:
SEC. 207. ALTERNATIVE ANALYSES OF INTELLIGENCE BY THE
INTELLIGENCE COMMUNITY.
(a) Sense of Congress.--It is the sense of Congress that
the National Intelligence Director should consider the
advisability of establishing for each element of the
intelligence community an element, office, or component whose
purpose is the alternative analysis (commonly referred to as
a ``red-team analysis'') of the information and conclusions
in the intelligence products of such element of the
intelligence community.
(b) Report.--(1) Not later than one year after the date of
the enactment of this Act, the National Intelligence Director
shall submit to Congress a report on the actions taken to
establish for each element of the intelligence community an
element, office, or component described in subsection (a).
(2) The report shall be submitted in an unclassified form,
but may include a classified annex.
amendment no. 3864
(Purpose: To extend section 145(c) of the Aviation and Transportation
Security Act)
At the appropriate place insert the following:
Section 145(c) of the Aviation and Transportation Security
Act (49 U.S.C. 40101 note) is amended by striking ``more
than'' and all that follows through ``after'' and inserting
``more than 48 months after''.
amendment no. 3772
(Purpose: To establish the position of Chief Scientist of the National
Intelligence Authority)
On page 45, between lines 10 and 11, insert the following:
(11) The Chief Scientist of the National Intelligence
Authority.
On page 45, line 11, strike ``(11)'' and insert ``(12)''.
On page 45, line 14, strike ``(12)'' and insert ``(13)''.
On page 59, between lines 14 and 15, insert the following:
SEC. 131. CHIEF SCIENTIST OF THE NATIONAL INTELLIGENCE
AUTHORITY.
(a) Chief Scientist of National Intelligence Authority.--
There is a Chief Scientist of the National Intelligence
Authority who shall be appointed by the National Intelligence
Director.
(b) Requirement Relating to Appointment.--An individual
appointed as Chief Scientist of the National Intelligence
Authority shall have a professional background and experience
appropriate for the duties of the Chief Scientist.
(c) Duties.--The Chief Scientist of the National
Intelligence Authority shall--
(1) act as the chief representative of the National
Intelligence Director for science and technology;
(2) chair the National Intelligence Authority Science and
Technology Committee under subsection (d);
(3) assist the Director in formulating a long-term strategy
for scientific advances in the field of intelligence;
(4) assist the Director on the science and technology
elements of the budget of the National Intelligence
Authority; and
(5) perform other such duties as may be prescribed by
Director or by law.
(d) National Intelligence Authority Science and Technology
Committee.--(1) There is within the Office of the Chief
Scientist of the National Intelligence Authority a National
Intelligence Authority Science and Technology Committee.
(2) The Committee shall be composed of the principal
science officers of the National Intelligence Program.
(3) The Committee shall--
(A) coordinate advances in research and development related
to intelligence; and
(B) perform such other functions as the Chief Scientist of
the National Intelligence Authority shall prescribe.
On page 59, line 15, strike ``131.'' and insert ``132.''.
On page 202, line 16, strike ``131(b)'' and insert
``132(b)''.
amendment no. 3813
(Purpose: To find that risk assessments and protective measures for
liquefied natural gas marine terminals should be included in the plan
of the Secretary of Homeland Security to protect critical
infrastructure)
At the appropriate place, insert the following:
[[Page S10250]]
SEC. __. LIQUEFIED NATURAL GAS MARINE TERMINALS.
Congress finds that plans developed by the Department of
Homeland Security to protect critical energy infrastructure
should include risk assessments and protective measures for
existing and proposed liquefied natural gas marine terminals.
amendment no. 3717
(Purpose: To provide that the Intelligence Community Reserve Corps
shall have a personnel strength level authorized by law)
On page 39, strike lines 8 through 11 and insert the
following:
(c) Personnel Strength Level.--Congress shall authorize the
personnel strength level for the National Intelligence
Reserve Corps for each fiscal year.
Amendment No. 3771, as Modified
Ms. COLLINS. Mr. President, I ask unanimous consent that the pending
amendment be set aside and that we proceed to the consideration of the
Bingaman-Domenici amendment 3771, as modified. I send the modification
to the desk.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Maine [Ms. Collins], for Mr. Bingaman and
Mr. Domenici, , proposes an amendment numbered 3771, as
modified.
The amendment, as modified, is as follows:
(Purpose: To authorize employees of Federally Funded Research and
Development Centers and certain employees of the Department of Energy
national laboratories to be eligible for the staff of the National
Counterterrorism Center and the national intelligence centers)
On page 91, between lines 12 and 13, insert the following:
(C) Employees of Federally Funded Research and Development
Centers (as that term is defined in part 2 of the Federal
Acquisition Regulation), including employees of the
Department of Energy national laboratories who are associated
with field intelligence elements of the Department of Energy,
shall be eligible to serve under contract or other mechanism
with the National Counterterrorism Center under this
paragraph.
On page 98, between lines 21 and 22, insert the following:
(C) Employees of Federally Funded Research and Development
Centers (as that term is defined in part 2 of the Federal
Acquisition Regulation), including employees of the
Department of Energy national laboratories who are associated
with field intelligence elements of the Department of Energy,
shall be eligible to serve under contract or other mechanism
with a national intelligence center under this paragraph.
Mr. LIEBERMAN. Mr. President, since World War II, our national
laboratories, primarily serving Energy and Defense Department missions,
have been the Nation's repository of expertise on nuclear weapons and
other national security and technical issues. Although many of these
national laboratories are known as Federal Funded Research and
Development Centers, or FFRDC's, and are federally financed, lab
employees are not Federal employees. They are employees of the
contractors who operate these laboratories. This amendment would make
employees of the FFRDC's eligible to serve at the National
Counterterrorism Center and other national intelligence centers.
I agree with the sponsors of this amendment that if the national
intelligence director, or NID, determines that he or she needs to tap
the experts employed at our FFRDC's to help staff these centers, then
he or she should be able to do so. But I also want to make it clear,
that it is my understanding that we are not creating a new mission for
the FFRDC's or authorizing the creation of a new FFRDC for this
purpose. Use of these employees would be subject to the availability of
funds to the NID, and would still be subject to the Federal conflict of
interest provisions and the Federal Acquisition Regulations. Finally,
nothing in this amendment is intended to circumvent staff year ceilings
established by law for Defense Department-sponsored FFRDC's or any
other FFRDC's.
Ms. COLLINS. Mr. President, I ask unanimous consent that the
modification be agreed to, that the amendment, as modified, be agreed
to, and that the motion to reconsider be laid upon the table.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment (No. 3771), as modified, was agreed to.
Amendment No. 3756
Ms. COLLINS. Mr. President, I ask unanimous consent that the pending
amendment be set aside and that the Senate now proceed to the immediate
consideration of the Graham-Durbin amendment No. 3756.
The PRESIDING OFFICER. Without objection, it is so ordered. The clerk
will please report.
The legislative clerk read as follows:
The Senator from Maine [Ms. Collins], for Mr. Graham of
Florida, proposes an amendment numbered 3756.
The amendment is as follows:
(Purpose: To establish additional education and training requirements
for the National Intelligence Authority)
On page 108, between lines 8 and 9, insert the following:
SEC. 153. ADDITIONAL EDUCATION AND TRAINING REQUIREMENTS.
(a) Findings.--Congress makes the following findings:
(1) Foreign language education is essential for the
development of a highly-skilled workforce for the
intelligence community.
(2) Since September 11, 2001, the need for language
proficiency levels to meet required national security
functions has been raised, and the ability to comprehend and
articulate technical and scientific information in foreign
languages has become critical.
(b) Linguistic Requirements.--(1) The National Intelligence
Director shall--
(A) identify the linguistic requirements for the National
Intelligence Authority;
(B) identify specific requirements for the range of
linguistic skills necessary for the intelligence community,
including proficiency in scientific and technical
vocabularies of critical foreign languages; and
(C) develop a comprehensive plan for the Authority to meet
such requirements through the education, recruitment, and
training of linguists.
(2) In carrying out activities under paragraph (1), the
Director shall take into account education grant programs of
the Department of Defense and the Department of Education
that are in existence as of the date of the enactment of this
Act.
(3) Not later than one year after the date of the enactment
of this Act, and annually thereafter, the Director shall
submit to Congress a report on the requirements identified
under paragraph (1), including the success of the Authority
in meeting such requirements. Each report shall notify
Congress of any additional resources determined by the
Director to be required to meet such requirements.
(4) Each report under paragraph (3) shall be in
unclassified form, but may include a classified annex.
(c) Professional Intelligence Training.--The National
Intelligence Director shall require the head of each element
and component within the National Intelligence Authority who
has responsibility for professional intelligence training to
periodically review and revise the curriculum for the
professional intelligence training of the senior and
intermediate level personnel of such element or component in
order to--
(1) strengthen the focus of such curriculum on the
integration of intelligence collection and analysis
throughout the Authority; and
(2) prepare such personnel for duty with other departments,
agencies, and element of the intelligence community.
Ms. COLLINS. Mr. President, I ask unanimous consent that the
amendment be agreed to and that the motion to reconsider be laid upon
the table.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment (No. 3756) was agreed to.
Ms. COLLINS. Mr. President, as I indicated, those amendments have all
been worked out. They have been cleared on both sides. We are making
progress on this bill. There have been a great number of amendments
filed. I encourage all Senators to work closely with the managers of
the bill to allow us to proceed to consider this bill on Tuesday. We
have a great deal of work to be done before that time, but we made
progress today.
I also thank those Senators who came forward with their amendments
today. Shortly, I will have an announcement about the voting schedule
for Monday. We do expect to have a number of stacked votes in the mid
to late afternoon. We are working on that list even as we speak.
Amendment No. 3803
Ms. COLLINS. Mr. President, on behalf of Senator Cornyn, I send an
amendment to the desk.
The PRESIDING OFFICER. The clerk will report the amendment.
The legislative clerk read as follows.
The Senator from Maine (Ms. Collins), for Mr. Cornyn,
proposes an amendment numbered 3803.
The amendment is as follows:
(Purpose: To provide for enhanced criminal penalties for crimes related
to alien smuggling)
At the end of the bill, add the following:
TITLE IV--HUMAN SMUGGLING PENALTY ENHANCEMENT
SEC. 401. SHORT TITLE.
This title may be cited as the ``Human Smuggling Penalty
Enhancement Act of 2004''.
[[Page S10251]]
SEC. 402. ENHANCED PENALTIES FOR ALIEN SMUGGLING.
Section 274(a) of the Immigration and Nationality Act (8
U.S.C. 1324(a)) is amended--
(1) in paragraph (1)--
(A) in subparagraph (A)--
(i) in clause (i)--
(I) by striking ``knowing that a person is an alien,
brings'' and inserting ``knowing or in reckless disregard of
the fact that a person is an alien, brings'';
(II) by striking ``Commissioner'' and inserting ``Under
Secretary for Border and Transportation Security''; and
(III) by inserting ``and regardless of whether the person
bringing or attempting to bring such alien to the United
States intended to violate any criminal law'' before the
semicolon;
(ii) in clause (iv), by striking ``or'' at the end;
(iii) in clause (v)--
(I) in subclause (I), by striking ``, or'' and inserting a
semicolon;
(II) in subclause (II), by striking the comma and inserting
``; or''; and
(III) by inserting after subclause (II) the following:
``(III) attempts to commit any of the preceding acts; or'';
and
(iv) by inserting after clause (v) the following:
``(vi) knowing or in reckless disregard of the fact that a
person is an alien, causes or attempts to cause such alien to
be transported or moved across an international boundary,
knowing that such transportation or moving is part of such
alien's effort to enter or attempt to enter the United States
without prior official authorization;''; and
(B) in subparagraph (B)--
(i) in clause (i)--
(I) by striking ``or (v)(I)'' and inserting ``, (v)(I), or
(vi)''; and
(II) by striking ``10 years'' and inserting ``20 years'';
(ii) in clause (ii), by striking ``5 years'' and inserting
``10 years''; and
(iii) in clause (iii), by striking ``20 years'' and
inserting ``35 years'';
(2) in paragraph (2)--
(A) in the matter preceding subparagraph (A)--
(i) by inserting ``, or facilitates or attempts to
facilitate the bringing or transporting,'' after ``attempts
to bring''; and
(ii) by inserting ``and regardless of whether the person
bringing or attempting to bring such alien to the United
States intended to violate any criminal law,'' after ``with
respect to such alien''; and
(B) in subparagraph (B)--
(i) in clause (ii), by striking ``, or'' and inserting a
semicolon;
(ii) in clause (iii), by striking the comma at the end and
inserting ``; or'';
(iii) by inserting after clause (iii), the following:
``(iv) an offense committed with knowledge or reason to
believe that the alien unlawfully brought to or into the
United States has engaged in or intends to engage in
terrorist activity (as defined in section
212(a)(3)(B)(iv)),''; and
(iv) in the matter following clause (iv), as added by this
subparagraph, by striking ``3 nor more than 10 years'' and
inserting ``5 years nor more than 20 years''; and
(3) in paragraph (3)(A), by striking ``5 years'' and
inserting ``10 years''.
SEC. 403. AMENDMENT TO SENTENCING GUIDELINES RELATING TO
ALIEN SMUGGLING OFFENSES.
(a) Directive to United States Sentencing Commission.--
Pursuant to its authority under section 994(p) of title 18,
United States Code, and in accordance with this section, the
United States Sentencing Commission shall review and, as
appropriate, amend the Federal Sentencing Guidelines and
related policy statements to implement the provisions of this
title.
(b) Requirements.--In carrying out this section, the United
States Sentencing Commission shall--
(1) ensure that the Sentencing Guidelines and Policy
Statements reflect--
(A) the serious nature of the offenses and penalties
referred to in this title;
(B) the growing incidence of alien smuggling offenses; and
(C) the need to deter, prevent, and punish such offenses;
(2) consider the extent to which the Sentencing Guidelines
and Policy Statements adequately address whether the
guideline offense levels and enhancements for violations of
the sections amended by this title--
(A) sufficiently deter and punish such offenses; and
(B) adequately reflect the enhanced penalties established
under this title;
(3) maintain reasonable consistency with other relevant
directives and sentencing guidelines;
(4) account for any additional aggravating or mitigating
circumstances that might justify exceptions to the generally
applicable sentencing ranges;
(5) make any necessary conforming changes to the Sentencing
Guidelines; and
(6) ensure that the Sentencing Guidelines adequately meet
the purposes of sentencing under section 3553(a)(2) of title
18, United States Code.
Ms. COLLINS. I ask unanimous consent the amendment be laid aside.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 3768
Ms. COLLINS. Mr. President, I send an amendment to the desk on behalf
of the Senator from Montana, Mr. Baucus.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Maine (Ms. Collins), for Mr. Baucus, for
himself and Mr. Roberts, proposes an amendment numbered 3768.
The amendment is as follows:
(Purpose: To require an annual report on the allocation of funding
within the Office of Foreign Assets Control of the Department of the
Treasury)
At the end, add the following new section:
SEC. 353. ANNUAL REPORT ON THE ALLOCATION OF RESOURCES WITHIN
THE OFFICE OF FOREIGN ASSETS CONTROL.
(a) Sense of Congress.--It is the sense of Congress that
the Secretary of the Treasury should allocate the resources
of the Office of Foreign Assets Control to enforce the
economic and trade sanctions of the United States in a manner
that enforcing such sanctions--
(1) against al Qaeda and groups affiliated with al Qaeda is
the highest priority of the Office;
(2) against members of the insurgency in Iraq is the second
highest priority of the Office; and
(3) against Iran is the third highest priority of the
Office.
(b) Requirement for Annual Report.--Not later than 180 days
after the date of enactment of this Act, and annually
thereafter, the Secretary of the Treasury, in consultation
with the National Intelligence Director, shall submit to
Congress a report on the allocation of resources within the
Office of Foreign Assets Control.
(c) Content of Annual Report.--An annual report required by
subsection (b) shall include--
(1) a description of--
(A) the allocation of resources within the Office of
Foreign Assets Control to enforce the economic and trade
sanctions of the United States against terrorist
organizations and targeted foreign countries during the
fiscal year prior to the fiscal year in which such report is
submitted; and
(B) the criteria on which such allocation is based;
(2) a description of any proposed modifications to such
allocation; and
(3) an explanation for any such allocation that is not
based on prioritization of threats determined using
appropriate criteria, including the likelihood that--
(A) a terrorist organization or targeted foreign country--
(i) will sponsor or plan a direct attack against the United
States or the interests of the United States; or
(ii) is participating in or maintaining a nuclear,
biological, or chemical weapons development program; or
(B) a targeted foreign country--
(i) is financing, or allowing the financing, of a terrorist
organization within such country; or
(ii) is providing safe haven to a terrorist organization
within such country.
(d) Effective Date.--Notwithstanding section 341 or any
other provision of this Act, this section shall take effect
on the date of the enactment of this Act.
Ms. COLLINS. Mr. President, I ask unanimous consent the amendment be
set aside.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. COLLINS. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will please call the roll.
The legislative clerk proceeded to call the roll.
Ms. COLLINS. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER (Mr. Sessions). Without objection, it is so
ordered.
Amendment No. 3768, As Modified
Ms. COLLINS. Mr. President, I ask unanimous consent that Baucus
amendment No. 3768 be modified with the change at the desk.
The PRESIDING OFFICER. Without objection, the amendment is modified.
The amendment (No. 3768), as modified, is as follows:
At the end, add the following new section:
SEC. 353. ANNUAL REPORT ON THE ALLOCATION OF RESOURCES WITHIN
THE OFFICE OF FOREIGN ASSETS CONTROL.
(a) Sense of Congress.--It is the sense of Congress that
the Secretary of the Treasury is not currently according
emerging threats to the United States the proper priority and
should reallocate the current resources of the Office of
Foreign Assets Control to enforce the economic and trade
sanctions of the United States in a manner that enforcing
such sanctions substantially increases the priority given
to--
(1) al Qaeda and groups affiliated with al Qaeda;
(2) members of the insurgency in Iraq; and
(3) Iran.
(b) Requirement for Annual Report.--Not later than 180 days
after the date of enactment of this Act, and annually
thereafter,
[[Page S10252]]
the Secretary of the Treasury, in consultation with the
National Intelligence Director, shall submit to Congress a
report on the allocation of resources within the Office of
Foreign Assets Control.
(c) Content of Annual Report.--An annual report required by
subsection (b) shall include--
(1) a description of--
(A) the allocation of resources within the Office of
Foreign Assets Control to enforce the economic and trade
sanctions of the United States against terrorist
organizations and targeted foreign countries during the
fiscal year prior to the fiscal year in which such report is
submitted; and
(B) the criteria on which such allocation is based;
(2) a description of any proposed modifications to such
allocation; and
(3) an explanation for any such allocation that is not
based on prioritization of threats determined using
appropriate criteria, including the likelihood that--
(A) a terrorist organization or targeted foreign country--
(i) will sponsor or plan a direct attack against the United
States or the interests of the United States; or
(ii) is participating in or maintaining a nuclear,
biological, or chemical weapons development program; or
(B) a targeted foreign country--
(i) is financing, or allowing the financing, of a terrorist
organization within such country; or
(ii) is providing safe haven to a terrorist organization
within such country.
(d) Effective Date.--Notwithstanding section 341 or any
other provision of this Act, this section shall take effect
on the date of the enactment of this Act.
Ms. COLLINS. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Ms. COLLINS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
amendment no. 3903
Ms. COLLINS. Mr. President, I ask unanimous consent to set the
pending amendment aside and call up the Stevens amendment No. 3903.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Maine [Ms. Collins], for Mr. Stevens, Mr.
Inouye, Mr. Warner, and Mr. Kyl, proposes an amendment
numbered 3903.
The amendment is as follows:
(Purpose: To strike section 201, relating to public disclosure of
intelligence funding)
On page 115, strike line 15 and all that follows through
page 115, line 25.
Ms. COLLINS. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. DeWINE. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DeWINE. I ask unanimous consent to proceed in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________
