Congressional Record: October 4, 2004 (Senate)
Page S10296-S10358
NATIONAL INTELLIGENCE REFORM ACT OF 2004
The PRESIDING OFFICER. Under the previous order, the Senate will now
resume consideration of S. 2845, which the clerk will report.
The bill 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.
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.
Allard Amendment No. 3778, to improve the management of the
personnel of the National Intelligence Authority.
Byrd Amendment No. 3845, to enhance the role of Congress in
the oversight of the intelligence and intelligence-related
activities of the United States Government.
Warner Modified Amendment No. 3877, to modify the role of
the National Intelligence Director in the appointment of
intelligence officials of the United States Government.
Leahy/Grassley Amendment No. 3945, to require Congressional
oversight of translators employed and contracted for by the
Federal Bureau of Investigation.
Reed Amendment No. 3908, to authorize the Secretary of
Homeland Security to award grants to public transportation
agencies to improve security.
Reid (for Corzine/Lautenberg) Amendment No. 3849, to
protect human health and the environment from the release of
hazardous substances by acts of terrorism.
Reid (for Lautenberg) Amendment No. 3782, 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.
Reid (for Lautenberg) Amendment No. 3905, to provide for
maritime transportation security.
Reid (for Harkin) Amendment No. 3821, to modify the
functions of the Privacy and Civil Liberties Oversight Board.
Roberts Amendment No. 3748, 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.
Roberts Amendment No. 3739, to ensure the sharing of
intelligence information in a manner that promotes all-
sources analysis and to assign responsibility for competitive
analysis.
Roberts Amendment No. 3750, to clarify the responsibilities
of the Directorate of Intelligence of the National
Counterterrorism Center for information-sharing and
intelligence analysis.
Roberts Amendment No. 3747, to provide the National
Intelligence Director with flexible administrative authority
with respect to the National Intelligence Authority.
Roberts Amendment No. 3742, 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.
Roberts Amendment No. 3740, to include among the primary
missions of the National Intelligence Director the
elimination of barriers to the coordination of intelligence
activities.
Roberts Amendment No. 3741, to permit the National
Intelligence Director to modify National Intelligence Program
budgets before their approval and submittal to the President.
Roberts Amendment No. 3744, to clarify the limitation on
the transfer of funds and personnel and to preserve and
enhance congressional oversight of intelligence activities.
Roberts Amendment No. 3751, to clarify the responsibilities
of the Secretary of Defense pertaining to the National
Intelligence Program.
Kyl Amendment No. 3926, 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.
Kyl Amendment No. 3881, to protect crime victims' rights.
Kyl Amendment No. 3724, to strengthen anti-terrorism
investigative tools, promote information sharing, punish
terrorist offenses.
Stevens Amendment No. 3826, to modify the duties of the
Director of the National Counterterrorism Center as the
principal advisor to the President on counterterrorism
matters.
Stevens Amendment No. 3827, to strike section 206, relating
to information sharing.
Stevens Amendment No. 3829, to amend the effective date
provision.
Stevens Amendment No. 3840, to strike the fiscal and
acquisition authorities of the National Intelligence
Authority.
Stevens Amendment No. 3882, to propose an alternative
section 141, relating to the Inspector General of the
National Intelligence Authority.
Collins (for Inhofe) Amendment No. 3946 (to Amendment No.
3849), in the nature of a substitute.
Sessions Amendment No. 3928, to require aliens to make an
oath prior to receiving a nonimmigrant visa.
Sessions Amendment No. 3873, to protect railroad carriers
and mass transportation from terrorism.
Sessions Amendment No. 3871, to provide for enhanced
Federal, State, and local enforcement of the immigration
laws.
Sessions Amendment No. 3870, to make information sharing
permanent under the USA PATRIOT ACT.
Warner Amendment No. 3876, to preserve certain authorities
and accountability in the implementation of intelligence
reform.
Collins (for Cornyn) Amendment No. 3803, to provide for
enhanced criminal penalties for crimes related to alien
smuggling.
Collins (for Baucus/Roberts) Modified Amendment No. 3768,
to require an annual report on the allocation of funding
within the Office of Foreign Assets Control of the Department
of the Treasury.
Collins (for Stevens) Amendment No. 3903, to strike section
201, relating to public disclosure of intelligence funding.
Frist (for McConnell) Amendment No. 3930, to clarify that a
volunteer for a federally-created citizen volunteer program
and for the program's State and local affiliates is protected
by the Volunteer Protection Act.
Frist (for McConnell) Amendment No. 3931, to remove civil
liability barriers that discourage the donation of equipment
to volunteer fire companies.
The PRESIDING OFFICER. The Chair recognizes the distinguished Senator
from Maine.
Ms. COLLINS. Thank you, Mr. President. The bill is now officially
before the Senate. It is open for amendment. We have great deal of work
to do on this legislation, as the Presiding Officer is well aware. I do
anticipate many votes later today, starting at 4:15. I do anticipate a
late session tonight in order to make considerable progress on the
bill.
In addition, I want to alert my colleagues to the fact that the
majority leader, with the consent of the Democratic leader, did file a
cloture motion last week that will ripen tomorrow morning. So we are
determined to make good progress on this bill. We made a great deal of
progress last week. Negotiations continued over the weekend. But we
have to finish this highly significant bill. That is the leader's
intention. It is the floor managers' intention. And we will be working
long and hard to do so both tonight and tomorrow night.
I thank the Chair.
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The PRESIDING OFFICER. The Chair, in a helpful way, wishes to inform
the Senate that under the previous order, at the hour of 4:15 today,
the Senate will proceed to a series of votes on the pending amendments
with 2 minutes equally divided for debate prior to each vote.
Ms. COLLINS. Thank you, Mr. President.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. DeWINE. Mr. President, first, I congratulate Senator Collins and
Senator Lieberman for their very fine work on this bill. Anyone who has
watched this debate has to be very impressed by the work they have done
in, frankly, a relatively short period of time. They have held a number
of hearings. They have diligently worked on this bill and brought the
bill to the floor.
I came to the floor last week and asked my colleague from Maine some
questions. I thought she had some very good answers. As I expressed at
that time--and I have made no secret of this--I have always been
concerned that any bill we produce, in fact, give the head of our
intelligence enough authority, enough power to actually get the job
done. And that was my concern. Frankly, that was the nature of my
questions to my colleague from Maine last week.
I come to the floor this morning to express my concerns about the
Byrd amendment. My reading of the Byrd amendment is, frankly, that it
would strike at the heart of the Collins-Lieberman bill. I believe if
the Byrd amendment were to be adopted, all my worst fears would be
realized, and we would end up with a bill that would look like it was
giving power to this new head of intelligence in this country, but, in
fact, that person would not really have the requisite power they
needed.
I wonder if I may ask my friend and colleague from Maine several
questions about her interpretation of the Byrd amendment.
My understanding is that the Byrd amendment begins, on the copy I
have, on page 27 of the bill and strikes the title ``Transfer or
Reprogramming of Funds and Transfer of Personnel within NIP.''
I wonder if my colleague shares my concerns about the danger of this
amendment. I think, frankly, this is a gutting amendment. I wonder what
her reaction to that is.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Mr. President, if the Senator from Ohio will yield, I
will be happy to respond to his question. The Senator from Ohio is
exactly right. The amendment offered by the Senator from West Virginia
would greatly weaken the authority of the national intelligence
director to move funding and people. That is one of the most important
reforms made by this legislation. That is one reason I am strongly
opposed to the amendment offered by the Senator from West Virginia.
I believe the Senator from Ohio is exactly right, that were the
amendment to pass, it would severely undermine the reforms called for
by the 9/11 Commission to create a NID with real authority. That means
the authority over the budget, over the people in the national
intelligence program, the authority to set priorities, and certainly
the Byrd amendment would greatly weaken that authority.
Mr. DeWINE. I appreciate very much my colleague's response. That is
the way I read this. As I expressed when I was on the floor last week,
really what we need to do is to empower this person, this new position
with the authority to get the job done. Never again do we want to be in
a position where the head of intelligence of this country can come
before the committee and say: I do not have enough power; I do not have
the authority to get the job done; I could not move people around; I
did not have the budget authority.
That, I think, is what my two colleagues who are on the floor right
now have tried to craft with this bill. If you look at this particular
section, it talks about the transfer of people and the transfer of
money, and the ability of that person to be able to do that and to be
the prime mover, the prime person who could do that.
Never again should the head of intelligence in this country really be
subservient to anybody else. Yes, they should consult. Yes, they should
involve other people. But they certainly should be the prime person.
I wonder if I may ask my colleague--I see Senator Lieberman on the
floor--I know some people do have concerns with the way the Senator has
written the bill, that other agencies would not be consulted. With the
way the Senator has written the bill, would the new head of
intelligence consult other agencies and be involved with other agencies
with regard to these very essential decisions?
Mr. LIEBERMAN. Mr. President, through you, I am pleased to respond to
the Senator from Ohio. I thank him for his questions. The direct answer
is that in the proposal Senator Collins and I have put down, the
national intelligence director, in formulating the national
intelligence budget, as distinguished from the military tactical
intelligence joint budget, would be required to consult with the heads
of the relevant intelligence agencies in formulating his budget, but we
make very clear that the budget authority for the national intelligence
budget ought to go to the national intelligence director, both in terms
of final recommendations to the Office of Management and Budget and the
President, but then that the money must come to the national
intelligence director before it goes to those constituent agencies.
That is a critical element of the authority that we want to establish
in the national intelligence director where there is none.
We had repeated testimony before our committee from Secretary Powell,
from former Directors of Central Intelligence that without budget
authority, they are ineffective, they have no clout.
In addition to constricting, as the Senator from Ohio has made clear,
the authority of the national intelligence director under the Collins-
Lieberman proposal to transfer both personnel and funds, the Byrd
amendment does dramatically undercut that budget authority by, if I can
state this to the best of my ability in lay people's language, removing
the authority of the new national intelligence director to have budget
accounts at the Treasury Department, which would mean that the only way
Treasury could transfer money to the national intelligence director was
back through the Department of Defense. That is exactly what we are
trying to change.
Mr. DeWINE. If I may ask an additional question for Senators who are
watching today, maybe the answer is obvious, but what is the importance
of that distinction, the inability to do that, having that money go
through the Defense Department as opposed to the national intelligence
director?
Mr. LIEBERMAN. It is just such a strange circumstance with which I
believe many members of our committee were surprised to find, that the
intelligence budget, including the CIA budget, the Central Intelligence
Agency right now, goes through the Department of Defense before it gets
there. Obviously, the Defense Department is an important user of
intelligence, perhaps the most important, so is the State Department,
the President, and the Homeland Security Department.
The current situation is a little bit--let me see if I can think of
an analogy, and I know this is farfetched--where the budget of the
Securities and Exchange Commission went through the Department of
Health and Human Services. It may be a little farfetched. Maybe it went
through one of the other Departments that is slightly more related. It
makes no sense.
Again, we are trying to create authority here, and authority in this
town, as we kept hearing over and over, is built on money, budget
authority, and this amendment would remove that authority from the
national intelligence director and, therefore, weaken that position. I
fear it would get us back to where we are now, where we do not have
that authority with anyone in the intelligence community and no one is
in charge.
Mr. DeWINE. I wonder if I may ask my colleague another question. As
one looks at the language throughout the bill that Senator Collins and
Senator Lieberman have crafted, they have made a distinction between
the national intelligence programs and the nonnational intelligence
programs, given certainly the authority over the national intelligence
programs and what they described as far as the budget authority,
execution authority over
[[Page S10298]]
those to the national intelligence director.
The other programs that are not national intelligence programs
continue to remain, then, with other departments--for example, the
Defense Department--is that correct?
Mr. LIEBERMAN. I am sorry? I missed the question.
Mr. DeWINE. The other programs that are not national intelligence
programs would not come under, then, the national intelligence
director?
Mr. LIEBERMAN. That is correct. We tried to draw some lines. They are
not always clear because there are a lot of programs that overlap, but
to say that anything in the national intelligence budget should go to
the national intelligence director, that is his or her job. There are
other programs that are uniquely the work of the Defense Department--I
am going to put it another way: that are totally used by the Defense
Department for tactical intelligence to support the work of one service
of the military or a joint military action. But those assets are not
used for anything else in our intelligence community nonmilitary and,
of course, they should go for budget control to the Secretary of
Defense.
Mr. DeWINE. That is the way the Senator's bill is written?
Mr. LIEBERMAN. Absolutely. We preserve that. There are one or two
amendments that are seeking still to clarify that break that we will
debate and vote on I would guess before this bill is finally
considered, but that is exactly what we have done in the underlying
bill.
Mr. DeWINE. When I came to the Senate floor last week, I was asking
questions of both the Senator from Connecticut and my colleague from
Maine, and I was happy to hear some of the answers about the Senator's
understanding of this bill that has been drafted, but I am concerned
that under the amendment from our colleague from West Virginia, these
powers would be gone. For example, I asked about the ability to move
personnel around, and the Senator assured me under his bill the
national intelligence director would be able to move personnel around
from one department to another as long as it was a national
intelligence program. Is it the Senator's understanding under the
amendment from our colleague from West Virginia that power would be
gone?
Mr. LIEBERMAN. I say through the Chair, that power would be seriously
limited, which is to say the personnel transfers under the amendment
would have to be done in accordance with procedures to be developed by
the national intelligence director with the concerned department head
and only for periods up to 1 year, and that is a constriction that says
to the national intelligence director: You do not have the latitude to
do what you think is necessary to protect the national security
interests. This is a little bit like saying to a general: You can only
make a decision for a short period of time in moving your troops around
to better confront the enemy and achieve victory. It makes no sense. It
is a critical part of the overall proposal of our bill and the 9/11
Commission.
If the Senator from Ohio would give me a moment, this morning, the
Family Steering Committee composed of families of victims of 9/11 sent
a letter to every Senator commenting on some of these amendments. With
regard to this amendment introduced by the Senator from West Virginia,
No. 3845, they say that the 9/11 Commission has stated repeatedly that
the power of the purse is critical for the national intelligence
director position. S. 2845, the underlying bill, provides for the
national intelligence director to be empowered with budget execution
and transfer authorities. The NID also needs to be able to transfer
personnel in response to threats, which is what the Senator's question
goes to. So the families conclude: In summary, we oppose amendment No.
3845 introduced by the Senator from West Virginia and others because it
reduces the authority of the national intelligence director.
I thank the Senator.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Mr. President, if the Senator from Ohio would yield on
that point.
Mr. DeWINE. I sure will.
Ms. COLLINS. The amendment offered by our colleague from West
Virginia would actually give the national intelligence director less
authority than the DCI has under current law to move people and money
around to address urgent needs. It not only would undo the reforms in
our bill, it is a step back from current law.
Under the Byrd amendment, aggregate transfers from a department or
agency would be limited to $100 million or 5 percent of the funds
available to the department or the agency. There is no such limitation
in current law. The amendment offered by the Senator from West Virginia
not only undermines the reforms in this bill and significantly would
weaken the authority of the NID to move people and money to meet urgent
compelling needs, but it actually is weaker than the authority that the
Director of the CIA now has. I just wanted to make that point. I know
the Senator from Ohio is aware of that as well.
Mr. DeWINE. I thank my colleague for her answer, and that is
something that should alarm all the Members of the Senate. I believe
there is a general consensus--certainly there is in the intelligence
community, a general consensus at least, and I think there is among
Members of the Senate--that the power of the DCI today is not enough,
and to think that we would be thinking about passing a bill that would
pass with this amendment possibly that would weaken the head of our
intelligence agencies and give that person less power to me is a
shocking thought.
I believe our whole goal should, in a very responsible, rational way,
create a new system, which this bill has done, to empower one person to
have the authority to run the intelligence in this country. I am
afraid, as this discussion has pointed out between my colleagues and
myself, that the Byrd amendment will take us actually in the wrong
direction. It is a weakening amendment. At least for this Member, it is
a gutting amendment. It, frankly, would make it impossible for me to
vote for this bill. It would destroy the power of the head of
intelligence, this new position, and it would be the wrong thing to do.
It is very well intended, but it would be a very serious mistake. This
discussion we just had certainly brings that out.
Again, I want to congratulate my colleagues. They have done a very
good job in trying to deal with all of the diverse needs we have in the
intelligence community, the Defense Department, and all the other
agencies. It has been a very tough job, and I congratulate them for
their work.
I yield the floor.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. LIEBERMAN. Mr. President, I rise to thank our friend and
colleague from Ohio for both his thoughtful consideration of this
legislation and his very relevant questions this morning, which I do
believe help to illuminate the consequences on one of the amendments we
are going to vote on today.
Last week, the Senator was here in a less friendly posture. It is
always better to have him on our side, and I thank him very much for
caring enough about this critically important legislation to come over
and be part of this debate.
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. BYRD. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Roberts). Without objection, it is so
ordered.
The Senator from West Virginia is recognized.
Amendment No. 3845
Mr. BYRD. Mr. President, in a few hours the Senate will vote on the
Byrd-Stevens-Inouye-Warner amendment. That amendment's purpose is to
ensure that the new national intelligence authority is held accountable
to the people's representatives in the Congress. Let me say again, the
amendment which I have offered on behalf of myself and Mr. Stevens, Mr.
Inouye, and Mr. Warner has a purpose, that purpose being to ensure that
the new national intelligence authority, the NID, is held accountable
to the people's representatives in the Congress.
Last Friday, I spoke about the Englishmen who spilled their blood to
wrest the power of the purse away from
[[Page S10299]]
monarchs, over many centuries, in England. Their struggle was enshrined
in Article I, section 9 of the U.S. Constitution, which I hold in my
hand, the Constitution of the United States--the struggle of Englishmen
across many centuries, even prior to 1215 when the barons yielded, the
great Magna Carta was agreed to by King John, a mighty monarch. And
what does that section 9 of Article I say?
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.
Not just some of the moneys, all of the moneys. How then, I ask
Senators, can a regular account of public money be kept if the Congress
empowers a new intelligence director to spend money without regard to
appropriations law and without regard to this Constitution?
This is a debate about power. Make no mistake about it. It is a
debate about power and who should wield it--the elected representatives
of the people or an unelected, unaccountable bureaucrat nestled deep
inside our Nation's intelligence agencies.
It goes to the heart of the balance of power between the executive
and the legislative branches of Government. I took an oath to support
and defend that Constitution, and I have tried to do that now, I will
soon be in my 59th year in government, in politics, in the legislative
branches of Government--at the State level and at the national level.
Under the pending bill, the Treasury Secretary is authorized to
create appropriations accounts to which the national intelligence
director can transfer funds. Get that. We are talking about an
unelected bureaucrat who will be able to transfer funds. The Collins-
Lieberman bill includes no limits on how those funds can be used.
Let me say, I don't see either of the two managers on the floor but
they are listening. I saw Senator Lieberman just a few minutes ago. I
am sure he is in the premises here. One of the distinguished persons
who is aiding the Governmental Affairs Committee in this connection has
nodded in the affirmative. So I am not talking behind Senator
Lieberman's back. He is here. He knows very well what I am saying, and
I am sure he will be very ready to counter my arguments. I respect him
for that.
Let me say again, under the pending bill, the Treasury Secretary is
authorized to create appropriations accounts to which the national
intelligence director can transfer funds. The Collins-Lieberman bill
includes no limits on how those funds can be used once they are
transferred. Under current law, the intelligence director would be
authorized to transfer up to $3.5 billion from the defense budget,
giving this director enormous transfer authority never contemplated by
the Congress.
That places the Congress on the defensive. The Congress would have to
act retroactively to transfers made by the national intelligence
director, allowing the intelligence director to spend funds without
adequate oversight by the Congress.
I remind Senators that in 1996, the National Reconnaissance Office--
the Government's spy satellite agency--was discovered to have stashed
away billions of dollars into a reserve that was not reported to the
Congress. While the proponents of the bill before the Senate argue that
the national intelligence director needs strong budget authority to
fight the war on terror, Senators should understand that the
intelligence director can use that authority for activities that have
nothing to do with the war on terror. The intelligence director could
use this sweeping transfer authority to circumvent the limitations
imposed by the Congress, the elected representatives of the American
people. It has happened before, and it will happen again. It can happen
again and very likely it will happen again.
Senators Collins and Lieberman have argued that our mandate here
today is to implement the 9/11 Commission recommendations and that
those recommendations include an intelligence director with strong
budget authority. I respectfully submit that our mandate as Senators--
my mandate, at least, as a Senator--first and foremost is to protect
and defend the Constitution of the United States.
We took an oath to do so, and that mandate supersedes any
recommendations put forward by any commission, including the 9/11
Commission. To provide virtually unchecked flexibility to an
intelligence director to transfer funds from one account to another
would nullify and make meaningless the legislative process of reviewing
budget requests from the intelligence agencies. It would nullify and
make meaningless congressional decisions about how funds are allocated.
Congressional judgment by elected lawmakers--I am elected; I am one
of the elected lawmakers. From time to time I have to go back before
the people and see if they want me to continue in this work.
Congressional judgment by elected lawmakers would be made subordinate
to executive judgments by unelected bureaucrats.
The power of the purse for which our English ancestors spilled their
blood and which has protected our democratic institutions and
individual rights for centuries would, in a very large measure, pass to
the executive branch.
I am saying, in essence, that we need more time to discuss this
amendment and to discuss this bill. I don't know what is in the bill. I
have read parts of the bill, but I have many other duties to perform,
and I think we need more time. This is a major bill. This is the very
same thing we ran into when we created the Department of Homeland
Security--the very same thing. We are backed up against the wall. The
idea is you have to pass this. You have to do it. You have to get
behind it. And we find we have a lot of problems with that.
I sought to have the leadership take a little more time on that bill,
discuss it, debate it, but the leadership didn't choose to take more
time.
It was the very same way with the nefarious resolution that was
passed by this Senate on October 11 of 2002 to shift the constitutional
power to declare war to a single individual; namely, the President of
the United States. I pleaded that we have more time. I pleaded on that
same occasion--I think it was with Mr. Lieberman and with the other
managers on both sides--please take more time.
Here we are shifting the power. Congress says in article I, section
8, that the Congress shall have the power to declare war. So the
Framers of the Constitution did not intend for one man to be able to
declare war. The Framers of the Constitution did not intend for one
body to put this Nation into a war. It required both bodies. The
Constitution says Congress--not just the Senate, not just the House--
Congress, which is a combination of both, Congress shall have power to
declare war. So the Framers meant for that very great question to be
decided by a huge body of men. It was men in those days, only men in
the Congress of the United States; but, of course, we know what
``Congress'' meant--for anybody who serves. It is Congress made up of
the elected representatives of the American people. So I have a mandate
to listen to the American people. I have a mandate to exercise whatever
judgment I have and can bring to bear in my own way to look at these
things and to ask questions.
So there we were. We passed it in a big hurry. The leadership on both
sides said: Let's get this behind us. I am talking about the resolution
that was passed by the U.S. Senate on October 11, 2002, shifting the
power, shifting the decision to put this country at war, shifting that
decision away from the Congress and handing it over lock, stock, and
barrel to one man--the President of the United States. It does not make
any difference if he is a Democrat or a Republican, that power is his
and will be in the next President's hand. He will have that power, and
the next one, if he or she decides to use it. It will be there for them
because there is no sunset provision in that resolution terminating
that power.
I sought even to have the Congress adopt an amendment which would
have provided for a sunset provision in that power so that within a
year or at most 2 years--and the circumstances were set forth in my
amendment calling for a sunset provision, a termination of handing this
power over to any President, Republican or Democrat. Do you know how
many votes I got? Well, I got 31 votes, including my own.
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I yet am astonished to this very day as to why the Members of the
Senate of the United States sought not only to give that power to a
President, one man--whether he is Democrat or Republican, that is not
the point--shift that power to a President. I said: If we are going to
be foolish enough to do that, let's at least have a sunset provision so
we can terminate that power. But no, I got 31 votes, including my own--
31 votes. What a shame that this Senate and the House would give that
power to an individual and say: It's yours, take it, keep it until we
in the Congress decide to repeal that provision and take it back. How
about that. So the sunset provision was turned down.
I asked for more time. Oh, the leadership said: Let's get this behind
us. The President said: Get it behind you; we have an election coming.
That was the manipulation that was wrought to have that key vote occur
just a few days before the national elections in the year 2002.
Why, those Members who were up for reelection, as they voted on that
resolution, they certainly thought: If I vote against this, what is it
going to do to me and my reelection? People might think I am
unpatriotic; I better vote for this; man, I have to be reelected; I
have to be reelected; I am going to vote for it; I have some questions
about it, but I am going to put all questions aside because we have an
election coming here. The leadership said: Put it behind us; let's vote
on it, get it behind us.
I said at the time: You will not get this behind you because this
President is not going to let you get it behind you. It is in his favor
to make you vote before the election. You might vote differently after
the election. No, you have to vote before the election. There we were.
We did not have time. I pleaded for time, time, wait until after the
election, let's wait to hear what the people have to say.
Here again, we are pressed for time. We are going to go out on I
believe it is October 8 presumably for the elections, at least until
they are over, so we are in a hurry. Let's not wait until after the
election; no, let's get this behind us. We have to do what the
Commission says. What about the Constitution? We are legislating in a
tremendous hurry, and that is not good.
Former Secretary of State Henry Kissinger in his appearance before
the Appropriations Committee said that ought to be put off. You need, I
believe he said, 6 or 8 months. I am not sure I am quoting him
precisely. In essence, that was his message: Put it off; don't do it in
a time before an election; don't do it under the heat that is
generated; take your time; this is a measured, measured decision, don't
rush it through. Former Secretary of State Henry Kissinger showed the
committee the names of several other very important dignitaries who, by
their experience, see the reasoning all joined in the suggestion that
we take our time. But no, we are brushing that aside, and that was the
decision on the part of former Secretaries of Defense--for example, Mr.
Cohen. It included both Republicans and Democrats urging that we take
more time. I think we should take more time here because we are doing
some dangerous things in this bill.
My amendment will keep the power of the purse where it belongs, not
in the hands of the intelligence community but here in the hands of the
people's elected representatives in the Congress. My amendment retains
for the Congress the responsibility for deciding how budget accounts
for the intelligence director should be structured while allowing the
flexibility the Governmental Affairs Committee seeks for the transfer
of personnel and funding within the intelligence community. My
amendment is an oversight amendment. It guarantees better oversight
over the way these funds are going to be spent.
Normally, when we pass an appropriation, we say to Mr. A, who is head
of one agency: Here, you take this and you do this, and you do this,
and you do this, and you do this, and then come back in a year and tell
us what you did; come back in here tell us what you did with our
limitations to do this, do this, but don't do this, don't do this.
Under those limitations the agency assures Congress he will live up to
the mandate, he will do this, he will do this, and he will not do this
that Congress said don't do.
Well, that is not going to be the case. This national intelligence
director will do whatever he wants to do, and then there will not be
those limitations, either, on him or her. He is not going to be
elected. He is going to be another bureaucrat--and I do not mean to
speak in any derogatory manner concerning bureaucrats because we have
to have them--but they are not elected by the people.
All these seats--these chairs, as I call them--were here many years
before I came, and they are filled with Members who are elected by the
people of their respective States. We have to answer to those people.
This amendment limits the transfer of funds to $100 million or to 5
percent of the Department or Agency budget, whichever is the lesser.
Senators should realize that even with the limitations included in this
amendment, the intelligence director is granted significant authority
to transfer funds. He would still have significant authority. Given the
history, though, of abuses of power and the violation of civil
liberties that have taken place within our intelligence community, I
cannot imagine Senators condoning such sweeping budget transfer
authority.
Hear me, Senators. We should take time. We are talking about rushing
through a massive change, one which will have some bearing upon this
Constitution which we are sworn to support and defend, and yet we are
going to do it with our ears closed, our eyes closed, and our voices
unheard.
We are being pressured to act fast before we go home on October 8. I
cannot imagine Senators condoning such sweeping budget transfer
authority. Common sense and history suggest that if one man is given
control of our intelligence agencies and one man is given control over
funds appropriated to those agencies, abuses can occur, may occur, and
in all probability will occur at some point in time. Those abuses may
manifest themselves in the violations of civil liberties, your
liberties. They may manifest themselves in scandals such as those at
Abu Ghraib prison, or they may manifest themselves as they did in the
lead-up to the war in Iraq through politicized intelligence. Therein
lies a great danger.
The New York Times, on Sunday, wrote a very lengthy article--read
it--entitled, ``How the White House Embraced Disputed Arms
Intelligence.''
I ask unanimous consent that the article from the New York Times be
reprinted in the Record at the close of my remarks.
The PRESIDING OFFICER (Mr. Cochran). Without objection, it is so
ordered.
(See exhibit 1.)
Mr. BYRD. Mr. President, the article explores how senior
administration officials, including President Bush and Vice President
Cheney, ``repeatedly failed to fully disclose the contrary views of
America's leading nuclear scientists'' when asserting in 2002 that
Saddam Hussein was rebuilding his nuclear weapons program. The article
reads:
They sometimes overstated even the most dire intelligence
assessments . . .
It goes on to say:
yet minimized or rejected strong doubts of nuclear experts.
The article goes on:
Today, 18 months after the invasion of Iraq, investigators
there have found no evidence of . . . a revived nuclear
weapons program.
Secretary of State Colin Powell said last Friday he regretted the
administration's claims that Iraq had stockpiles of weapons of mass
destruction in making its case for war.
So the gut-wrenching question for the Senator from Maine is--hear
me--if we do this intelligence reorganization hurriedly, are we willing
to launch our next preemptive war based on the presumption that our
handiwork has corrected our intelligence problems? That is a very
serious question.
I will say it again: The gut-wrenching question for you, Robert C.
Byrd, and for every other Member of the Senate, remains: if we do this
intelligence reorganization hurriedly, as we are doing, are we willing
to launch our next preemptive war based on the presumption that our
handiwork has corrected our intelligence problems?
Think about it. That should sober one up. The question remains, and
we
[[Page S10301]]
are going to be held to it by the American people and by that
Constitution: If we do this intelligence reorganization hurriedly, are
we willing to launch our next preemptive war based on the presumption
that our handiwork has corrected our intelligence problems?
I say to Senators, again, preemptive attack is the official policy of
this Government. Preemptive attack today, under the Bush
administration, is the official policy of this Government.
Remember also that preemption is totally antithetical to the U.S.
Constitution because it clearly cuts the Congress out of decisions to
go to war. Preemption by its very nature precludes congressional
debates or approval of resolutions before commencing to shed the blood
of our sons and our daughters. Preemption stands on its face
antithetical, opposite, 180 degrees, to this Constitution, which says
that the Congress shall have power to declare war; the Congress,
meaning a group of people, two bodies, made up of men and women
representing all of the States of this Union. Congress shall declare
war, not one man. But the doctrine of preemption tells us the
President--the President, not the Congress--the President shall have
power to declare war. That is the preemptive doctrine. That great power
may send your son, your daughter, your grandson, your granddaughter to
war. Who says so? One man, the President of the United States.
So on its face it is unconstitutional. How can a President declare
war without doing it clandestinely, secretly? If he wants to bomb a
certain country, he is not going to take it up with the Congress. He
wants to be secret about this because that strike has to be preemptive.
How can it be preemptive if it is going to be debated by the Members of
the United States Senate? It can't be preemptive.
Let us remember that intelligence--remember, this is not just Robert
Byrd saying this--let us remember that the intelligence was manipulated
to get us into the Iraq war. Will it not be more easily manipulated in
the hands of one intelligence chief, a partisan chief more free than
ever to tweak intelligence to please a President? It may be a
Democratic President. Does that make it any better? No. That makes no
difference.
It is comforting to believe that our intelligence agencies will not
be manipulated for political gain, but it is also naive to believe
that. To turn over to a greater degree the power of the purse to
shadowy figures in the intelligence community is to invite abuses like
those that lead to scandal and to the disgrace of the United States in
the eyes of the international community.
Think of what we are doing here. It is just like it was when we had
that resolution before the Senate on which the Senate voted on October
11, 2002. There is not another Senator on this floor, except the
distinguished Senator from Mississippi, Mr. Cochran, who is presently
presiding over this body, and myself, two Senators. A major question is
before the Senate. We are talking about your oversight duties as a
Member of the Senate, as you chair or as you serve on a committee--your
oversight; the oversight powers of the Congress, provided for in the
Constitution of the United States. Yet we are saying, Well, forget it.
The Congress must preserve its power to rein in--not just because it
can but because the people expect it of the Congress--our Nation's
intelligence agencies and to rein in the executive branch when abuses
like these occur.
Further, we must do all we can to ensure that the new intelligence
positions created by the Collins-Lieberman bill are held accountable to
the Congress; in other words, to the people. This Constitution, in its
first three words, says, ``We the people . . . .'' So we have a
responsibility. We have a duty to the people we represent to see that
these people are held accountable to the Congress.
On page 47, the pending bill creates four deputy national
intelligence director positions as executive level 2 appointments, the
equivalent of a Deputy Secretary of Defense or State. Yet none of these
new positions is subject to Senate confirmation. How about that? The
Congressional Research Service informs me that these deputy
intelligence directors would be--listen to this--the only executive
level 2 appointments in our Government not subject to confirmation by
the Senate. There you have it. These people are going to have
tremendous responsibilities, but I am informed that these deputy
intelligence directors would be the only executive level 2 appointments
in our Government not subject to Senate confirmation.
So it is clear that more needs to be done to ensure accountability to
the Congress. How much thought was given to this in the distinguished
committee? How much thought was given to this in the Commission that
recommends to the Congress these reforms? These clearly mean that more
needs to be done to ensure accountability to the Congress. The
intelligence failures of 9/11 and the intelligence failures in Iraq are
in part a testament to the dire consequences of the Congress abdicating
its constitutional duties. The Congress was rushed, as it oftentimes
is--rushed, pressured--could be pressured by circumstances only, but
that is not quite the case. Congress was rushed into creating a
homeland security department, and, in the process, it ceded authorities
to the executive branch over organization and personnel matters. The
result has been an underfunded homeland security agency whose
effectiveness has been compromised, to some extent, by turf wars and
bureaucratic resistance.
So we rushed consideration of the war resolution with Iraq, and in
the process ceded the constitutional authority to declare war to the
White House. The result has been a rush to war marked by foreign policy
failures and scandals, with the death toll rising daily and with no end
in sight to the chaos in Iraq.
What a pickle. What a pickle we have put ourselves in. Now the
Congress is confronted with an intelligence reform bill, proposing to
create a national intelligence director who will command 15
intelligence agencies and a $40 billion budget. Rather than learn from
our mistakes, rather than take the time to thoughtfully consider this
matter outside of Presidential politics, we are being pushed to finish
this bill within a handful of days, finish this bill within a shirt-
tail full of days, and to cede control over the allocation of the
resources to the intelligence community.
Think about it. Think what you are doing. Think what you are about to
do, Senators. National security experts are pleading with the Congress
to stop for a minute. Hold on, here. Hold on, they say. Stop for a
minute to think about what it is doing.
The Appropriations Committee heard from a bipartisan array of
witnesses urging the Congress to slow down.
What is the hurry? What is the hurry?
The list is impressive. These men are not Members of the Congress.
Listen to them, though. They are saying, slow down. David Boren, former
Senator from the State of Oklahoma, former chairman of the Intelligence
Committee in the Senate.
Here is another former Senator, Bill Bradley, saying let's slow down
here. Slow down. Where is the hurry? Frank Carlucci, former Secretary
of Defense under President Reagan. Here is a more recent Secretary of
Defense, former Member of this body, a Republican, William Cohen.
Robert Gates, Gary Hart, former U.S. Senator; Henry Kissinger, former
Secretary of State; John Hamre.
In the case of some of these, their titles have momentarily escaped
me.
Sam Nunn, former Senator from the State of Georgia and chairman of
the Senate Armed Services Committee;
Warren Rudman, Republican, former Senator from New Hampshire; George
Shultz, former Secretary of State, Republican--there you have it, an
impressive roster of Republicans and Democrats who rendered great
service to this country in one form or another. They are saying slow
down. What is the hurry? What is the hurry? They are former Senators,
former Department of Defense Secretaries, former Secretaries of State,
Republicans and Democrats, all making the same plea: ``Racing to
implement reforms on an election timetable is precisely the wrong thing
to do.''
That is not Robert Byrd saying that. Robert Byrd is quoting these
luminaries, and Robert Byrd feels the same way they do.
``Racing to implement reforms on an election timetable is precisely
the wrong thing to do. Intelligence reform
[[Page S10302]]
is too complex and too important to undertake at a campaign breakneck
speed.''
They are saying this subject matter deserves a thoughtful,
comprehensive approach. Why in Heaven's name are we in all of this big
hurry? Why is there all of this hurry? I am not saying there shouldn't
be reform. I am not saying that at all. I am saying this is a major
undertaking and we ought to have the time and we ought to take time to
debate and ask questions and to try to remove the gremlins that may
come to light if we take more time.
The Wall Street Journal concluded in August that:
The larger point here is that there is no need to rush to
any quick political fix.
We may have a different President after the election. He may
appoint--and probably would--a national intelligence director who will
be a different person from that whom the current President may appoint,
should he be reelected. We ought not to do this in such a big hurry.
The Wall Street Journal continues:
We are contemplating the biggest change to our intelligence
services since 1947, while we are fighting a war against a
lethal enemy . . .
a war that in large measure has resulted from faulty intelligence.
Are we fixing that fault in this bill? Are we dealing with 9/11 in
this bill without casting a watchful eye to the future, to Iraq? How
about it?
That work should take some time--and beltway forbid, maybe
even a little thought.
That is a quotation from the Wall Street Journal of the month of
August.
The case for stopping and thinking for a moment grows even stronger
when one reads U.S. Circuit Court Judge Richard Posner's critique of
the 9/11 Commission's report in the New York Times Book Review. Judge
Posner writes:
The enormous public relations effort that the commission
orchestrated to win support for the report before it could be
digested . . . invites criticism . . . [as does] the
commissioners' misplaced, though successful, quest for
unanimity. . . . The Commission's contention that our
intelligence structure is unsound predisposed it to blame the
structure for the failure of the 9/11 attacks, whether it did
or not. And pressure for unanimity encourages just the kind
of herd thinking now being blamed for that other recent
intelligence failure--the belief that Saddam Hussein
possessed weapons of mass destruction. . . . For all one
knows, the price of unanimity was adopting recommendations
that were the second choice [or maybe even the third or
fourth choice] of many of the commission's members. . . .
The larger concern is not only that the Congress, in its rush to act,
may botch the implementation of the 9/11 Commission's recommendation,
but that those recommendations may not be as well-thought-out as the
public relations campaign would have us believe.
We are so threatened by the politics surrounding the 9/11
Commission's report and the release of its recommendations prior to the
Presidential election that we stand ready--stand, salute--to abdicate
our constitutional responsibilities rather than to question or probe
deeper into the potential flaws of the Commission's recommendations.
I say again it is the same kind of thinking that occurred prior to
the vote on the war resolution with Iraq, the same mentality that led
to the much regretted passage of the PATRIOT Act with only a single
dissenting vote in this Chamber, and that led to the creation of a
Homeland Security Department that now struggles with its mission to
make Americans safer from terrorism.
I urge Senators, I plead with Senators, I beg Senators to consider
carefully their vote on this amendment.
I am sure there are many Senators who have regretted and will regret
to their dying day their decision to vote for the Iraq resolution that
was passed by this body on October 11, 2002. I am sure many Senators
have lived to regret that vote because we were being pressured: Hurry,
hurry, hurry, get this vote behind us. We don't want to talk more about
this. We want to talk about the economy. They will regret it. I have
had Senators tell me they regret it.
I urge Senators to consider carefully their vote on this amendment.
Also, consider this Constitution and the oath I have taken this many
times to support and defend the Constitution of the United States. This
Constitution provides for adequate oversight. It gives the Congress the
power, the oversight.
This bill will, to a considerable extent, take away that power. I am
not seeking to undermine the intelligence reforms proposed by the
Governmental Affairs Committee. I seek only to ensure that the Congress
retain its oversight functions in intelligence and national security
matters. We owe it to the people who had faith and confidence in us and
who sent us here.
We are not elected here, sent here, by any President of the United
States. No President tapped me on the shoulder and said, go get him,
boy, I am going to see that you get it. No President can do that. No
President can tap me on the shoulder and say: Boy, you are gone; you
won't be back after this election. No, no President can say that, thank
God. No President is king in this country. Not here, no. We did not
swear an oath to adopt any particular commission's report.
We should use our own best judgment in this case, and in doing that
we will arrive at different signals, of course, but that is our
responsibility. We owe it to the victims of the September 11 attack and
their families to get these reforms straight and to take time to study
and debate them. Why not take more time? It would be a sad legacy if
the suffering of these victims of the September 11 attack, it would be
a sad legacy if their suffering and loss resulted not in the
strengthening but in the weakening of our national security and
intelligence service, leaving more Americans vulnerable to a terrorist
attack.
In summary, it is a critical mistake to hand to an unelected
intelligence chief nearly unfettered budget transfer authority. We are
handing off the ability to exercise oversight. When we do that, we
cannot determine whether congressional intent for the people's tax
dollars has been met. We will not know about transfers until some time,
perhaps, after the fact. Millions of dollars--nay, billions of
dollars--could be moved around at the discretion of one man, an
unelected figure, with no one the wiser. Resources could be switched
from one area of the world to another area of the globe at the
discretion of one man. Secret operations could be funded without the
prior knowledge of any Member of Congress at the discretion of one man.
This is one-man rule. Intelligence could be manipulated by one man,
with discretion concerning where to take away secret resources and
where to add them.
Absolute power, Senators just heard, corrupts absolutely, and the
United States is about to aid and abet that truism.
Senators, Republicans and Democrats, we will rue the day when,
because of rushing and posturing and hurrying, we created a spy chief
with such awesome power.
I ask unanimous consent to add the names of Senator Leahy, Senator
Dorgan, and Senator Burns as cosponsors.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BYRD. May the record show that John Hamre is a former Deputy
Defense Secretary and Robert Gates is a former CIA Director.
[From the New York Times, Oct. 3, 2004]
How the White House Embraced Disputed Arms Intelligence
(By David Barstow, William J. Broad and Jeff Gerth)
In 2002, at a crucial juncture on the path to war, senior
members of the Bush administration gave a series of speeches
and interviews in which they asserted that Saddam Hussein was
rebuilding his nuclear weapons program. Speaking to a group
of Wyoming Republicans in September, Vice President Dick
Cheney said the United States now had ``irrefutable
evidence''--thousands of tubes made of high-strength
aluminum, tubes that the Bush administration said were
destined for clandestine Iraqi uranium centrifuges, before
some were seized at the behest of the United States.
Those tubes became a critical exhibit in the
administration's brief against Iraq. As the only physical
evidence the United States could brandish of Mr. Hussein's
revived nuclear ambitions, they gave credibility to the
apocalyptic imagery invoked by President Bush and his
advisers. The tubes were ``only really suited for nuclear
weapons programs,'' Condoleezza Rice, the president's
national security adviser, explained on CNN on Sept. 8, 2002.
``We don't want the smoking gun to be a mushroom cloud.''
But almost a year before, Ms. Rice's staff had been told
that the government's foremost nuclear experts seriously
doubted that
[[Page S10303]]
the tubes were for nuclear weapons, according to four
officials at the Central Intelligence Agency and two senior
administration officials, all of whom spoke on condition of
anonymity. The experts, at the Energy Department, believed
the tubes were likely intended for small artillery rockets.
The White House, though, embraced the disputed theory that
the tubes were for nuclear centrifuges, an idea first
championed in April 2001 by a junior analyst at the C.I.A.
Senior nuclear scientists considered that notion implausible,
yet in the months after
9/11, as the administration built a case for confronting
Iraq, the centrifuge theory gained currency as it rose to the
top of the government.
Senior administration officials repeatedly failed to fully
disclose the contrary views of America's leading nuclear
scientists, an examination by The New York Times has found.
They sometimes overstated even the most dire intelligence
assessments of the tubes, yet minimized or rejected the
strong doubts of nuclear experts. They worried privately that
the nuclear case was weak, but expressed sober certitude in
public.
One result was a largely one-sided presentation to the
public that did not convey the depth of evidence and argument
against the administration's most tangible proof of a revived
nuclear weapons program in Iraq.
Today, 18 months after invasion of Iraq, investigators
there have found no evidence of hidden centrifuges or a
revived nuclear weapons program. The absence of
unconventional weapons in Iraq is now widely seen as evidence
of a profound intelligence failure, of an intelligence
community blinded by ``group think,'' false assumptions and
unreliable human sources.
Yet the tale of the tubes, pieced together through records
and interviews with senior intelligence officers, nuclear
experts, administration officials and Congressional
investigators, reveals a different failure.
Far from ``group think,'' American nuclear and intelligence
experts argued bitterly over the tubes. A ``holy war'' is how
one Congressional investigator described it. But if the
opinions of the nuclear experts were seemingly disregarded at
every turn, an overwhelming momentum gathered behind the
C.I.A. assessment. It was a momentum built on a pattern of
haste, secrecy, ambiguity, bureaucratic maneuver and a
persistent failure in the Bush administration and among both
Republicans and Democrats in Congress to ask hard questions.
Precisely how knowledge of the intelligence dispute
traveled through the upper reaches of the administration is
unclear. Ms. Rice knew about the debate before her Sept. 2002
CNN appearance, but only learned of the alternative rocket
theory of the tubes soon afterward, according to two senior
administration officials. President Bush learned of the
debate at roughly the same time, a senior administration
official said.
Last week, when asked about the tubes, administration
officials said they relied on repeated assurances by George
J. Tenet, then the director of central intelligence, that the
tubes were in fact for centrifuges. They also noted that the
intelligence community, including the Energy Department,
largely agreed that Mr. Hussein has revived his nuclear
program.
``These judgments sometimes require members of the
intelligence community to make tough assessments about
competing interpretations of facts,'' said Sean McCormack, a
spokesman for the president.
Mr. Tenet declined to be interviewed. But in a statement,
he said he ``made it clear'' to the White House ``that the
case for a possible nuclear program in Iraq was weaker than
that for chemical and biological weapons.'' Regarding the
tubes, Mr. Tenet said ``alternative views were shared'' with
the administration after the intelligence community drafted a
new National Intelligence Estimate in late September 2002.
The tubes episode is a case study of the intersection
between the politics of pre-emption and the inherent
ambiguity of intelligence. The tubes represented a scientific
puzzle and rival camps of experts clashed over the tiniest
technical details in secure rooms in Washington, London and
Vienna. The stakes were high, and they knew it.
So did a powerful vice president who saw in 9/11 horrifying
confirmation of his long-held belief that the United States
too often naively underestimates the cunning and ruthlessness
of its foes.
``We have a tendency--I don't know if it's part of the
American character--to say, `Well sit down and we'll evaluate
the evidence, we'll draw a conclusion,' '' Mr. Cheney said as
he discussed the tubes in September 2002 on the NBC News
program ``Meet the Press.''
``But we always think in terms that we've got all the
evidence,'' he said. ``Here, we don't have all the evidence.
We have 10 percent, 20 percent, 30 percent. We don't know how
much. We know we have a part of the picture. And that part of
the picture tells us that he is, in fact, actively and
aggressively seeking to acquire nuclear weapons.''
joe raises the tube issue
Throughout the 1990's, United States intelligence agencies
were deeply preoccupied with the status of Iraq's nuclear
weapons program, and with good reason.
After the Persian Gulf war in 1991, arms inspectors
discovered that Iraq had been far closer to building an
atomic bomb than even the worst-case estimates had
envisioned. And no one believed that Saddam Hussein had
abandoned his nuclear ambitions. To the contrary, in one
secret assessment after another, the agencies concluded that
Iraq was conducting low-level theoretical research and
quietly plotting to resume work on nuclear weapons.
But at the start of the Bush administration, the
intelligence agencies also agreed that Iraq had not in fact
resumed its nuclear weapons program. Iraq's nuclear
infrastructure, they concluded, had been dismantled by
sanctions and inspections. In short, Mr. Hussein's nuclear
ambitions appeared to have been contained.
Then Iraq started shopping for tubes.
According to a 511-page report on flawed prewar
intelligence by the Senate Intelligence Committee, the
agencies learned in early 2001 of a plan by Iraq to buy
60,000 high-strength aluminum tubes from Hong Kong.
The tubes were made from 7075-T6 aluminum, an extremely
hard alloy that made them potentially suitable as rotors in a
uranium centrifuge. Properly designed, such tubes are strong
enough to spin at the terrific speeds needed to convert
uranium gas into enriched uranium, an essential ingredient of
an atomic bomb. For this reason, international rules
prohibited Iraq from importing certain sizes of 7075-T6
aluminum tubes; it was also why a new C.I.A. analyst named
Joe quickly sounded the alarm.
At the C.I.A.'s request, The Times agreed to use only Joe's
first name; the agency said publishing his full name could
hinder his ability to operate overseas.
Joe graduated from the University of Kentucky in the late
1970's with a bachelor's degree in mechanical engineering,
then joined the Goodyear Atomic Corporation, which dispatched
him to Oak Ridge, Tenn., a federal complex that specializes
in uranium and national security research.
Joe went to work on a new generation of centrifuges. Many
European models stood no more than 10 feet tall. The American
centrifuges loomed 40 feet high, and Joe's job was to learn
how to test and operate them. But when the project was
canceled in 1985, Joe spent the next decade performing hazard
analyses for nuclear reactors, gaseous diffusion plants and
oil refineries.
In 1997, Joe transferred to a national security complex at
Oak Ridge known as Y-12, his entry into intelligence work.
His assignment was to track global sales of material used in
nuclear arms. He retired after two years, taking a buyout
with hundreds of others at Oak Ridge, and moved to the C.I.A.
The agency's ability to assess nuclear intelligence had
markedly declined after the cold war, and Joe's appointment
was part of an effort to regain lost expertise. He was
assigned to a division eventually known as Winpac, for
Weapons Intelligence, Nonproliferation and Arms Control.
Winpac had hundreds of employees, but only a dozen or so with
a technical background in nuclear arms and fuel production.
None had Joe's hands-on experience operating centrifuges.
Suddenly, Joe's work was ending up in classified
intelligence reports being read in the White House. Indeed,
his analysis was the primary basis for one of the agency's
first reports on the tubes, which went to senior members of
the Bush administration on April 10, 2001. The tubes, the
report asserted, ``have little use other than for a uranium
enrichment program.''
This alarming assessment was immediately challenged by the
Energy Department, which builds centrifuges and runs the
government's nuclear weapons complex.
The next day, Energy Department officials ticked off a long
list of reasons why the tubes did not appear well suited for
centrifuges. Simply put, the analysis concluded that the
tubes were the wrong size--too narrow, too heavy, too long--
to be of much practical use in a centrifuge.
What was more, the analysis reasoned, if the tubes were
part of a secret, high-risk venture to build a nuclear bomb,
why were the Iraqis haggling over prices with suppliers all
around the world? And why weren't they shopping for all the
other sensitive equipment needed for centrifuges?
All fine questions. But if the tubes were not for a
centrifuge, what were they for?
Within weeks, the Energy Department experts had an answer.
It turned out, they reported, that Iraq had for years used
high-strength aluminum tubes to make combustion chambers for
slim rockets fired from launcher pods. Back in 1996,
inspectors from the International Atomic Energy Agency had
even examined some of those tubes, also made of 7075-T6
aluminum, at a military complex, the Nasser metal fabrication
plant in Baghdad, where the Iraqis acknowledged making
rockets. According to the international agency, the rocket
tubes, some 66,000 of them, were 900 millimeters in length,
with a diameter of 81 millimeters and walls 3.3 millimeters
thick.
The tubes now sought by Iraq had precisely the same
dimensions--a perfect match.
That finding was published May 9, 2001, in the Daily
Intelligence Highlight, a secret Energy Department newsletter
published on Intelink, a Web site for the intelligence
community and the White House.
Joe and his Winpac colleagues at the C.I.A. were not
persuaded. Yes, they conceded, the tubes could be used as
rocket casings. But that made no sense, they argued in a new
report, because Iraq wanted tubes made at tolerances that
``far exceed any known conventional weapons.'' In other
words, Iraq was demanding a level of precision craftsmanship
unnecessary for ordinary mass-produced rockets.
[[Page S10304]]
More to the point, those analysts had hit on a competing
theory; that the tubes' dimensions matched those used in an
early uranium centrifuge developed in the 1950's by a German
scientist, Gernot Zippe. Most centrifuge designs are highly
classified; this one, though, was readily available in
science reports.
Thus, well before Sept. 11, 2001, the debate within the
intelligence community was already neatly framed: Were the
tubes for rockets or centrifuges?
Experts Attack Joe's Case
It was a simple question with enormous implications. If Mr.
Hussein acquired nuclear weapons, American officials feared,
he would wield them to menace the Middle East. So the tube
question was critical, yet none too easy to answer. The
United States had few spies in Iraq, and certainly none who
knew Mr. Hussein's plans for the tubes.
But the tubes themselves could yield many secrets. A
centrifuge is an intricate device. Not any old tube would do.
Carefully inquiry might answer the question.
The intelligence community embarked on an ambitious
international operation to intercept the tubes before they
could get to Iraq. The big break came in June 2001; a
shipment was seized in Jordan.
At the Energy Department, those examining the tubes
included scientists who had spent decades designing and
working on centrifuges, and intelligence officers steeped in
the tricky business of tracking the nuclear ambitions of
America's enemies. They included Dr. Jon A. Kreykes, head of
Oak Ridge's national security advanced technology group; Dr.
Duane F. Starr, an expert on nuclear proliferation threats;
and Dr. Edward Von Halle, a retired Oak Ridge nuclear expert,
Dr. Houston G. Wood III, a professor of engineering at the
University of Virginia who had helped design the 40-foot
American centrifuge, advised the team and consulted with Dr.
Zippe.
On questions about nuclear centrifuges, this was
unambiguously the A-Team of the intelligence community, many
experts say.
On Aug. 17, 2001, weeks before the twin towers fell, the
team published a secret Technical Intelligence Note, a
detailed analysis that laid out its doubts about the tubes'
suitability for centrifuges.
First, in size and material, the tubes were very different
from those Iraq had used in its centrifuge prototypes before
the first gulf war. Those models used tubes that were nearly
twice as wide and made of exotic materials that performed far
better than aluminum. ``Aluminum was a huge step backwards,''
Dr. Wood recalled.
In fact, the team could find no centrifuge machines
``deployed in a production environment'' that used such
narrow tubes. Their walls were three times too thick for
``favorable use'' in a centrifuge, the team wrote. They were
also anodized, meaning they had a special coating to protect
them from weather. Anodized tubes, the team pointed out, are
``not consistent'' with a uranium centrifuge because the
coating can produce bad reactions with uranium gas.
In other words, if Joe and his Winpac colleagues were
right, it meant that Iraq had chosen to forsake years of
promising centrifuge work and instead start from scratch,
with inferior material built to less-than-optimal dimensions.
The Energy Department experts did not think that made much
sense. They concluded that using the tubes in centrifuges
``is credible but unlikely, and a rocket production is the
much more likely end use for these tubes.'' Similar
conclusions were being reached by Britain's intelligence
service and experts at the International Atomic Energy
Agency, a United Nations body.
Unlike Joe, experts at the international agency had worked
with Zippe centrifuges, and they spent hours with him
explaining why they believed his analysis was flawed. They
pointed out errors in his calculations. They noted design
discrepancies. They also sent reports challenging the
centrifuge claim to American government experts through the
embassy in Vienna, a senior official said.
Likewise, Britain's experts believe the tubes would need
``substantial re-engineering'' to work in centrifuges,
according to Britain's review of its prewar intelligence.
Their experts found it ``paradoxical'' that Iraq would order
such finely crafted tubes only to radically rebuild each one
for a centrifuge. Yes, it was theoretically possible, but an
Energy Department analyst later told Senate investigators, it
was also theoretically possible to ``turn your new Yugo into
a Cadillac.''
In late 2001, intelligence analysts at the State Department
also took issue with Joe's work in reports prepared for
Secretary of State Colin Powell. Joe was ``very convinced,
but not very convincing,'' recalled Greg Thielmann, then
director of strategic, proliferation and military affairs in
the Bureau of Intelligence and Research.
By year's end, Energy Department analysts published a
classified report that even more firmly rejected the theory
that the tubes could work as rotors in a 1950's Zippe
centrifuge. These particular Zippe centrifuges, they noted,
were especially ill suited for bomb making. The machines were
a prototype designed for laboratory experiments and mean to
be operated as single units. To produce enough enriched
uranium to make just one bomb a year, Iraq would need up to
16,000 of them working in concert, a challenge for even the
most sophisticated centrifuge plants.
Iraq had never made more than dozen centrifuge prototypes.
Half failed when rotors broke. Of the rest, one actually
worked to enrich uranium, Dr. Mahdi Obeidi, who once ran
Iraq's centrifuge program, said in an interview last week.
The Energy Department team concluded it was ``unlikely that
anyone'' could build a centrifuge site capable of producing
significant amounts of enriched uranium ``based on these
tubes.'' One analyst summed it up this way: the tubes were so
poorly suited for centrifuges, he told Senate investigators,
that if Iraq truly wanted to use them this way, ``we should
just give them the tubes.''
enter cheney
In the months after Sept. 11, 2001, as the Bush
administration devised a strategy to fight Al Qaeda, Vice
President Cheney immersed himself in the world of top-secret
threat assessments. Bob Woodward, in his book `` Plan of
Attack,'' described Mr. Cheney as the administration's new
``self-appointed special examiner of worst-case scenarios,''
and it was a role that fit.
Mr. Cheney had grappled with national security threats for
three decades, first as President Gerald R. Ford's chief of
staff, later as secretary of defense for the first President
Bush. He was on intimate terms with the intelligence
community, 15 spy agencies that frequently feuded over the
significance of raw intelligence. He knew well their record
of getting it wrong (the Bay of Pigs) and underestimating
threats (Mr. Hussein's pre-1991 nuclear program) and failing
to connect the dots (Sept. 11).
As a result, the vice president was not simply a passive
recipient of intelligence analysis. He was known as a man who
asked hard, skeptical questions, a man who paid attention to
detail. ``In my office I have a picture of John Adams, the
first vice president,'' Mr Cheney said in one of his first
speeches as vice president. ``Adams like to say, `The facts
are stubborn things.' Whatever the issue, we are going to
deal with facts and show a decent regard for other points of
view.''
With the Taliban routed in Afghanistan after Sept. 11, Mr.
Cheney and his aides began to focus on intelligence
assessments of Saddam Hussein. Mr. Cheney had long argued for
more forceful action to topple Mr. Hussein. But in January
2002, according to Mr. Woodward's book, the C.I.A. told Mr.
Cheney that Mr. Hussein could not be removed with covert
action alone. His ouster, the agency said, would take an
invasion, which would require persuading the public that Iraq
posted a threat to the United States.
The evidence for that case was buried in classified
intelligence files. Mr. Cheney and his aides began to meet
repeatedly with analysts who specialized in Iraq and
unconventional weapons. They wanted to know about any Iraqi
ties to Al Qaeda and Baghdad's ability to make unconventional
weapons.
``There's no question they had a point of view, but there
was no attempt to get us to hew to a particular point of view
ourselves, or to come to a certain conclusion,'' the deputy
director of analysis at Winpac told the Senate Intelligence
Committee. ``It was trying to figure out, why do we come to
this conclusion, what was the evidence. A lot of questions
were asked, probing questions.''
Of all the worst-case possibilities, the most terrifying
was the idea that Mr. Hussein might slip a nuclear weapon to
terrorists, and Mr. Cheney and his staff zeroed in on Mr.
Hussein's nuclear ambitions.
Mr. Cheney, for example, read a Feb. 12, 2002, report from
the Defense Intelligence Agency about Iraq's reported
attempts to buy 500 tons of yellowcake, a uranium
concentrate, from Niger, according to the Senate Intelligence
Committee report. Many American intelligence analysts did not
put much stock in the Niger report. Mr. Cheney pressed for
more information.
At the same time, a senor intelligence official said, the
agency was fielding repeated requests from Mr. Cheney's
office for intelligence about the tubes, including updates on
Iraq's continuing efforts to procure thousands more after the
seizure in Jordan.
``Remember,'' Dr. David A. Kay, the chief American arms
inspector after the war, said in an interview, ``the tubes
were the only piece of physical evidence about the Iraqi
weapons programs that they had.''
In March 2002, Mr. Cheney traveled to Europe and the Middle
East to build support for a confrontation with Iraq. It is
not known whether he mentioned Niger or the tubes in his
meetings. But on his return, he made it clear that he had
repeatedly discussed Mr. Hussein and the nuclear threat.
``He is actively pursuing nuclear weapons at this time,''
Mr. Cheney asserted on CNN.
At the time, the C.I.A. had not reached so firm a
conclusion. But on March 12, the day Mr. Cheney landed in the
Middle East, he and other senior administration officials had
been sent two C.I.A. reports about the tubes. Each cited the
tubes as evidence that ``Iraq currently may be trying to
reconstitute its gas centrifuge program.''
Neither report, however, mentioned that leading centrifuge
experts at the Energy Department strongly disagreed,
according to Congressional officials who have read the
reports.
what white house is told
As the Senate Intelligence Committee report made clear, the
American intelligence community ``is not a level playing
field when it comes to the competition of ideas in
intelligence analysis.''
[[Page S10305]]
The C.I.A. has a distinct edge: ``unique access to policy
makers and unique control of intelligence reporting,'' the
report found. The Presidential Daily Briefs, for example, are
prepared and presented by agency analysts; the agency's
director is the president's principal intelligence adviser.
This allows agency analysts to control the presentation of
information to policy makers ``without having to explain
dissenting views or defend their analysis from potential
challenges,'' the committee's report said.
This problem, the report said, was ``particularly evident''
with the C.I.A.'s analysis of the tubes, when agency analysts
``lost objectivity and in several cases took action that
improperly excluded useful expertise from the intelligence
debate.'' In interviews, Senate investigators said the
agency's written assessments did a poor job of describing the
debate over the intelligence.
From April 2001 to September 2002, the agency wrote at
least 15 reports on the tubes. Many were sent only to high-
level policy makers, including President Bush, and did not
circulate to other intelligence agencies. None have been
released, though some were described in the Senate's report.
Several senior C.I.A. officials insisted that those reports
did describe at least in general terms the intelligence
debate. ``You don't go into all that detail but you do try to
evince it when you write your current product,'' one agency
official said.
But several Congressional and intelligence officials with
access to the 15 assessments said not one of them informed
senior policy makers of the Energy Department's dissent. They
described a series of reports, some with ominous titles, that
failed to convey either the existence or the substance of the
intensifying debate.
Over and over, the reports restated Joe's main conclusions
for the C.I.A.--that the tubes matched the 1950's Zippe
centrifuge design and were built to specifications that
``exceeded any known conventional weapons application.'' They
did not state what Energy Department experts had noted--that
many common industrial items, even aluminum cans, were made
to specifications as good or better than the tubes sought by
Iraq. Nor did the reports acknowledge a significant error in
Joe's claim--that the tubes ``matched'' those used in a Zippe
centrifuge.
The tubes sought by Iraq had a wall thickness of 3.3
millimeters. When Energy Department experts checked with Dr.
Zippe, a step Joe did not take, they learned that the walls
of Zippe tubes did not exceed 1.1 millimeters, a substantial
difference.
``They never lay out the other case,'' one Congressional
official said of those C.I.A. assessments.
The Senate report provides only a partial picture of the
agency's communications with the White House. In an
arrangement endorsed by both parties, the Intelligence
Committee agreed to delay an examination of whether White
House descriptions of Iraq's military capabilities were
``substantiated by intelligence information.'' As a result,
Senate investigators were not permitted to interview White
House officials about what they knew of the tubes debate and
when they knew it.
But in interviews, C.I.A. and administration officials
disclosed that the dissenting views were repeatedly discussed
in meetings and telephone calls.
One senior official at the agency said its ``fundamental
approach'' was to tell policy makers about dissenting views.
Another senior official acknowledged that some of their
agency's reports ``weren't as well caveated as, in
retrospect, they should have been.'' But he added, ``There
was certainly nothing that was hidden.''
Four agency officials insisted that Winpac analysts
repeatedly explained the contrasting assessments during
briefings with senior National Security Council officials who
dealt with nuclear proliferation issues. ``We think we were
reasonably clear about this,'' a senior C.I.A. official said.
A senior administration official confirmed that Winpac was
indeed candid about the differing views. The official, who
recalled at least a half dozen C.I.A. briefings on tubes,
said he knew by late 2001 that there were differing views on
the tubes. ``To the best of my knowledge, he never hid
anything from me,'' the official said of his counterpart at
Winpac.
This official said he also spoke to senior officials at the
Department of Energy about the tubes, and a spokeswoman for
the department said in a written statement that the agency
``strongly conveyed its viewpoint to senior policy
makers.''
But if senior White House officials understood the
department's main arguments against the tubes, they also took
into account its caveats. ``As for as I know,'' the senior
administration official said, ``D.O.E. never concluded that
these tubes could not be used for centrifuges.''
a referee is ignored
Over the summer of 2002, the White House secretly refined
plans to invade Iraq and debated whether to seek more United
Nations inspections. At the same time, in response to a White
House request in May, C.I.A. officials were quietly working
on a report that would lay out for the public declassified
evidence of Iraq's reported unconventional weapons and ties
to terror groups.
That same summer the tubes debate continued to rage. The
primary antagonists were the C.I.A. and the Energy
Department, with other intelligence agencies drawn in on
either side.
Much of the strife centered on Joe. At first glance, he
seem an unlikely target. He held a relatively junior
position, and according to the C.I.A. he did not write the
vast majority of the agency's reports on the tubes. He has
never met Mr. Cheney. His one trip to the White House was to
take his family on the public tour.
But he was, as one staff member on the Senate Intelligence
Committee put it, ``the ringleader'' of a small group of
Winpac analysts who were convinced that the tubes were
destined for centrifuges. His views carried special force
within the agency because he was the only Winpac analyst with
experience operating uranium centrifuges. In meetings with
other intelligence agencies, he often took the lead in
arguing the technical basis for the agency's conclusions.
``Very few people have the technical knowledge to
independently arrive at the conclusion he did,'' said Dr.
Kay, the weapons inspector, when asked to explain Joe's
influence.
Without identifying him, the Senate Intelligence
Committee's report repeatedly questioned Joe's competence and
integrity. It portrayed him so determined to prove his theory
that he twisted test results, ignored factual discrepancies
and excluded dissenting views.
The Senate report, for example, challenged his decision not
to consult the Energy Department on tests designed to see if
the tubes were strong enough for centrifuges. Asked why he
did not seek their help, Joe told the committee: ``Because we
funded it. It was our testing. We were trying to prove some
things that we wanted to prove with the testing.'' The Senate
report singled out that comment for special criticism,
saying, ``The committee believes that such an effort should
never have been intended to prove what the C.I.A. wanted to
prove.''
Joe's superiors strongly defend his work and say his words
were taken out of context. They describe him as diligent and
professional, an open-minded analyst willing to go the extra
mile to test his theories. ``Part of the job of being an
analyst is to evaluate alternative hypotheses and
possibilities, to build a case, think of alternatives,'' a
senior agency official said. ``That's what Joe did in this
case. If he turned out to be wrong, that's not an offense. He
was expected to be wrong occasionally.''
Still, the bureaucratic infighting was by then so widely
known that even the Australian government was aware of it.
``U.S. agencies differ on whether aluminum tubes, a dual-use
item sought by Iraq, were meant for gas centrifuges,''
Australia's intelligence services wrote in a July 2002
assessment. The same report said the tubes evidence was
``patchy and inconclusive.''
There was a mechanism, however, to resolve the dispute. It
was called the Joint Atomic Energy Intelligence Committee, a
secret body of experts drawn from across the federal
government. For a half century, Jaeic (pronounced jake) has
been called on to resolve disputes and give authoritative
assessments about nuclear intelligence. The committee had
specifically assessed the Iraqi nuclear threat in 1989, 1997
and 1999. An Energy Department expert was the committee's
chairman in 2002, and some department officials say the
C.I.A. opposed calling in Jaeic to mediate the tubes fight.
Not so, agency officials said. In July 2002, they insist,
they were the first intelligence agency to seek Jaeic's
intervention. ``I personally was concerned about the extent
of the community's disagreement on this and the fact that we
weren't getting very far,'' a senior agency official
recalled.
The committee held a formal session in early August to
discuss the debate, with more than a dozen experts on both
sides in attendance. A second meeting was scheduled for later
in August but was postponed. A third meeting was set for
early September; it never happened either.
``We were O.B.E.--overcome by events,'' an official
involved in the proceedings recalled.
white house makes a move
``The case of Saddam Hussein, a sworn enemy of our country,
requires a candid appraisal of the facts,'' Mr. Cheney said
on Aug. 26, 2002, at the outset of an address to the Veterans
of Foreign Wars national convention in Nashville.
Warning against ``wishful thinking or willful blindness,''
Mr. Cheney used the speech to lay out a rationale for pre-
emptive action against Iraq. Simply resuming United Nations
inspections, he argued, could give ``false comfort'' that Mr.
Hussein was contained.
``We now know Saddam has resumed his efforts to acquire
nuclear weapons,'' he declared, words that quickly made
headlines worldwide. ``Many of us are convinced that Saddam
will acquire nuclear weapons fairly soon. Just how soon, we
cannot really gauge. Intelligence is an uncertain business,
even in the best of circumstances.''
But the world, Mr. Cheney warned, could ill afford to once
again underestimate Iraq's progress.
``Armed with an arsenal of these weapons of terror, and
seated atop 10 percent of the world's oil reserves, Saddam
Hussein could then be expected to seek domination of the
entire Middle East, take control of a great portion of the
world's energy supplies, directly threaten America's friends
throughout the region, and subject the United States or any
other nation to nuclear blackmail.''
A week later President Bush announced that he would ask
Congress for authorization
[[Page S10306]]
to oust Mr. Hussein. He also met that day with senior members
of the House and Senate, some of whom expressed concern that
the administration had yet to show the American people
tangible evidence of an imminent threat. The fact that Mr.
Hussein gassed his own people in the 1980's, they argued, was
not sufficient evidence of a threat to the United States in
2002.
President Bush got the message. He directed Mr. Cheney to
give the public and Congress a more complete picture of the
latest intelligence on Iraq.
In his Nashville speech, Mr. Cheney had not mentioned the
aluminum tubes or any other fresh intelligence when he said,
``We now know that Saddam has resumed his efforts to acquire
nuclear weapons.'' The one specific source he did cite was
Hussein Kamel al-Majid, a son-in-law of Mr. Hussein's who
defected in 1994 after running Iraq's chemical, biological
and nuclear weapons programs. But Mr. Majid told American
intelligence officials in 1995 that Iraq's nuclear program
had been dismantled. What's more, Mr. Majid could not have
had any insight into Mr. Hussein's current nuclear
activities: he was assassinated in 1996 on his return to
Iraq.
The day after President Bush announced he was seeking
Congressional authorization, Mr. Cheney and Mr. Tenet, the
director of central intelligence, traveled to Capitol Hill to
brief the four top Congressional leaders. After the 90-minute
session, J. Dennis Hastert, the House speaker, told Fox News
that Mr. Cheney had provided new information about
unconventional weapons, and Fox went on to report that one
source said the new intelligence described ``just how
dangerously close Saddam Hussein has come to developing a
nuclear bomb.''
Tom Daschle, the South Dakota Democrat and Senate majority
leader, was more cautious. ``What has changed over the course
of the last 10 years, that brings this country to the belief
that it has to act in a pre-emptive fashion in invading
Iraq?'' he asked.
A few days later, on Sept. 8., the lead article on Page 1
of The New York Times gave the first detailed account of the
aluminum tubes. The article cited unidentified senior
administration officials who insisted that the dimensions,
specifications and numbers of tubes sought showed that they
were intended for a nuclear weapons program.
``The closer he gets to a nuclear capability, the more
credible is his threat to use chemical and biological
weapons,'' a senior administration official was quoted as
saying. ``Nuclear weapons are his hole card.''
The article gave no hint of a debate over the tubes.
The White House did much to increase the impact of The
Times' article. The morning it was published, Mr. Cheney went
on the NBC News program ``Meet the Press'' and confirmed when
asked that the tubes were the most alarming evidence behind
the administration's view that Iraq had resumed its nuclear
weapons program. The tubes, he said, had ``raised our level
of concern.'' Ms. Rice, the national security adviser, went
on CNN and said the tubes ``are only really suited for
nuclear weapons programs.''
Neither official mentioned that the nation's top nuclear
design experts believed overwhelmingly that the tubes were
poorly suited for centrifuges.
Mr. Cheney, who has a history of criticizing officials who
disclose sensitive information, typically refuses to comment
when asked about secret intelligence. Yet on this day, with a
Gallup poll showing that 58 percent of Americans did not
believe President Bush had done enough to explain why the
United States should act against Iraq, Mr. Cheney spoke
openly about one of the closest held secrets regarding Iraq.
Not only did Mr. Cheney draw attention to the tubes; he did
so with a certitude that could not be found in even the
C.I.A.'s assessments. On ``Meet the Press,'' Mr. Cheney said
he knew ``for sure'' and ``in fact'' and ``with absolute
certainty'' that Mr. Hussein was buying equipment to build a
nuclear weapon.
``He has reconstituted his nuclear program,'' Mr. Cheney
said flatly.
But in the C.I.A. reports, evidence ``suggested'' or
``could mean'' or ``indicates''--a word used in a report
issued just weeks earlier. Little if anything was asserted
with absolute certainty. The intelligence community had not
yet concluded that Iraq had indeed reconstituted its nuclear
program.
``The vice president's public statements have reflected the
evolving judgment of the intelligence community,'' Kevin
Kellems, Mr. Cheney's spokesman, said in a written statement.
The C.I.A. routinely checks presidential speeches that draw
on intelligence reports. This is how intelligence
professionals pull politicians back from factual errors. One
such opportunity came soon after Mr. Cheney's appearance on
``Meet the Press.'' On Sept. 11, 2002, the White House asked
the agency to clear for possible presidential use a passage
on Iraq's nuclear program. The passage included this
sentence: ``Iraq has made several attempts to buy high-
strength aluminum tubes used in centrifuges to enrich uranium
for nuclear weapons.''
The agency did not ask speechwriters to make clear that
centrifuges were but one possible use, that intelligence
experts were divided and that the tubes also matched those
used in Iraqi rockets. In fact, according to the Senate's
investigation, the agency suggested no changes at all.
The next day President Bush used virtually identical
language when he cited the aluminum tubes in an address to
the United Nations General Assembly.
dissent, but to little effect
The administration's talk of clandestine centrifuges,
nuclear blackmail and mushroom clouds had a powerful
political effect, particularly on senators who were facing
fall election campaigns. ``When you hear about nuclear
weapons, this is the national security knock-out punch,''
said Senator Ron Wyden, a Democrat from Oregon who sits on
the Intelligence Committee and ultimately voted against
authorizing war.
Even so, it did not take long for questions to surface over
the administration's claims about Mr. Hussein's nuclear
capabilities. As it happened, Senator Dianne Feinstein,
another Democratic member of the Intelligence Committee, had
visited the International Atomic Energy Agency in Vienna in
August 2002. Officials there, she later recalled, told her
they saw no signs of a revived nuclear weapons program in
Iraq.
At that point, the tubes debate was in its 16th month. Yet
Mr. Tenet, of the C.I.A., the man most responsible for
briefing President Bush on intelligence, told the committee
that he was unaware until that September of the profound
disagreement over critical evidence that Mr. Bush was citing
to world leaders as justification for war.
Even now, committee members from both parties express
baffled anger at this possibility. How could he not know? ``I
don't even understand it,'' Olympia Snowe, a Republican
senator from Maine, said in an interview. ``I cannot
comprehend the failures in judgment or breakdowns in
communication.''
Mr. Tenet told Senate investigators that he did not expect
to learn of dissenting opinions ``until the issue gets
joined'' at the highest levels of the intelligence community.
But if Mr. Tenet's lack of knowledge meant the president was
given incomplete information about the tubes, there was still
plenty of time for the White House to become fully informed.
Yet so far, Senate investigators say, they have found
little evidence the White House tried to find out why so many
experts disputed the C.I.A. tubes theory. If anything,
administration officials minimized the divide.
On Sept. 13, The Times made the first public mention of the
tubes debate in the sixth paragraph of an article on Page
A13. In it an unidentified senior administration official
dismissed the debate as a ``footnote, not a split.'' Citing
another unidentified administration official, the story
reported that the ``best technical experts and nuclear
scientists at laboratories like Oak Ridge supported the
C.I.A. assessments.''
As a senior Oak Ridge official pointed out to the
Intelligence Committee, ``the vast majority of scientists and
nuclear experts'' in the Energy Department's laboratories in
fact disagreed with the agency. But on Sept. 13, the day the
article appeared, the Energy Department sent a directive
forbidding employees from discussing the subject with
reporters.
The Energy Department, in a written statement, said that it
was ``completely appropriate'' to remind employees of the
need to protect nuclear secrets and that it had made no
effort ``to quash dissent.''
It closed hearings that month, Congress began to hear
testimony about the debate. Several Democrats said in
interviews that secrecy rules had prevented them from
speaking out about the gap between the administration's view
of the tubes and the more benign explanations described in
classified testimony.
One senior C.I.A. official recalled cautioning members of
Congress in a closed session not to speak publicly about the
possibility that the tubes were for rockets. ``If people
start talking about that and the Iraqis see that people are
saying rocket bodies, that will automatically become their
explanation whenever anyone goes to Iraq,'' the official said
in an interview.
So while administration officials spoke freely about the
agency's theory, the evidence that best challenged this view
remained almost entirely off limits for public debate.
In late September, the C.I.A. sent policymakers its most
detailed report on the tubes. For the first time, an agency
report acknowledged that ``some in the intelligence
community'' believed rocket were ``more likely end uses'' for
the tubes, according to officials who have seen the report.
Meanwhile, at the Energy Department, scientists were
startled to find senior White House officials embracing a
view of the tubes they considered thoroughly discredited. ``I
was really shocked in 2002 when I saw it was still there,''
Dr. Wood, the Oak Ridge adviser, said of the centrifuge
claim. ``I thought it had been put to bed.''
Members of the Energy Department team took a highly unusual
step: They began working quietly with a Washington arms-
control group, the Institute for Science and International
Security, to help the group inform the public about the
debate, said one team member and the group's president, David
Albright.
On Sept. 23, the institute issued the first in series of
lengthy reports that repeated some of the Energy Department's
arguments against the C.I.A. analysis, though no classified
ones. Still, after more than 16 months of secret debate, it
was the first public airing of facts that undermined the most
alarming suggestions about Iraq's nuclear threat.
[[Page S10307]]
The reports got little attention, partly because reporters
did not realize they had been done with the cooperation of
top Energy Department experts. The Washington Post ran a
brief article about the findings on Page A18. Many major
newspapers, including The Times, ran nothing at all.
scrambling for an ``estimate''
Soon after Mr. Cheney's appearance on ``Meet Press,''
Democratic senators began pressing for a new National
Intelligence Estimate on Iraq, terrorism and unconventional
weapons. A National Intelligence Estimate is a classified
document that is supposed to reflect the combined judgment of
the entire intelligence community. The last such estimate had
been done in 2000.
Most estimates take months to complete. But this one had to
be done in days, in time for an October vote on a war
resolution. There was little time for review or reflection,
and no time for Jaeic, the joint committee, to reconcile deep
analytical differences.
This was a potentially thorny obstacle for those writing
the nuclear section: What do you do when the nation's nuclear
experts strongly doubt the linchpin evidence behind the
C.I.A.'s claims that Iraq was rebuilding its nuclear weapons
program?
The Energy Department helped solve the problem. In meetings
on the estimate, senior department intelligence officials
said that while they still did not believe the tubes were for
centrifuges, they nonetheless could agree that Iraq was
reconstituting its nuclear weapons capability.
Several senior scientists inside the department said they
were stunned by that stance; they saw no compelling evidence
of a revived nuclear program.
Some laboratory officials blamed time pressure and
inexperience. Thomas S. Ryder, the department's
representative at the meetings, had been acting director of
the department's intelligence unit for only five months. ``A
heck of a nice guy but not savvy on technical issues,'' is
the way one senior nuclear official described Mr. Ryder, who
declined comment.
Mr. Ryder's position was more alarming than prior
assessments from the Energy Department. In an August 2001
intelligence paper, department analysts warned of suspicious
activities in Iraq that ``could be preliminary steps'' toward
reviving a centrifuge program. In July 2002 an Energy
Department report, ``Nuclear Reconstitution Efforts
Underway?'', noted that several developments, including
Iraq's suspected bid to buy yellowcake uranium from Niger,
suggested Baghdad was ``seeking to reconstitute'' a nuclear
weapons program.
According to intelligence officials who took part in the
meetings, Mr. Ryder justified his department's now firm
position on nuclear reconstitution in large part by citing
the Niger reports. Many C.I.A. analysts considered that
intelligence suspect, as did analysts at the State
Department.
Nevertheless, the estimate's authors seized on the Energy
Department's position to avoid the entire tubes debate, with
written dissents relegated to a 10-page annex. The estimate
would instead emphasize that the C.I.A. and the Energy
Department both agreed that Mr. Hussein was rebuilding his
nuclear weapons program. Only the closest reader would see
that each agency was basing its assessment in large measure
on evidence the other considered suspect.
On Oct. 2, nine days before the Senate vote on the war
resolution, the new National Intelligence Estimate was
delivered to the Intelligence Committee. The most significant
change from past estimates dealt with nuclear weapons; the
new one agreed with Mr. Cheney that Iraq was in aggressive
pursuit of the atomic bomb.
Asked when Mr. Cheney became aware of the disagreements
over the tubes, Mr. Kellems, his spokesman, said, ``The vice
president knew about the debate at about the time of the
National Intelligence Estimated.''
Today, the Intelligence Committee's report makes clear,
that 93-page estimate stands as one of the most flawed
documents in the history of American intelligence. The
committee concluded unanimously that most of the major
findings in the estimate were wrong, unfounded or overblown.
This was especially true of the nuclear section.
Estimates express their most important findings with high,
moderate or low confidence levels. This one claimed
``moderate confidence'' on how fast Iraq could have a bomb,
but ``high confidence'' that Baghdad was rebuilding its
nuclear program. And the tubes were the leading and most
detailed evidence cited in the body of the report.
According to the committee, the passages on the tubes,
which adopted much of the C.I.A. analysis, were misleading
and riddled with factual errors.
The estimate, for example, included a chart intended to
show that the dimensions of the tubes closely matched a Zippe
centrifuge. Yet the chart omitted the dimensions of Iraq's
81-millimeter rocket, which precisely matched the tubes.
The estimate cited Iraq's alleged willingness to pay top
dollar for the tubes, up to $17.50 each, as evidence they
were for secret centrifuges. But Defense Department rocket
engineers told Senate investigators that 7075-T6 aluminum is
``the material of choice for low-cost rocket systems.''
The estimate also asserted that 7075-T6 tubes were ``poor
choices'' for rockets. In fact, similar tubes were used in
rockets from several countries, including the United States,
and in an Italian rocket, the Medusa, which Iraq had copied.
Beyond tubes, the estimate cited several other ``key
judgments'' that supported its assessment. The committee
found that intelligence just as flawed.
The estimate, for example, pointed to Iraq's purchases of
magnets, balancing machines and machine tools, all of which
could be used in a nuclear program. But each item also had
legitimate non-nuclear uses, and there was no credible
intelligence whatsoever showing they were for a nuclear
program.
The estimate said Iraq's Atomic Energy Commission was
building new production facilities for nuclear weapons. The
Senate found that claim was based on a single operative's
report, which described how the commission had constructed
one headquarters building and planned `` a new high-level
polytechnic school.''
Finally, the estimate stated that many nuclear scientists
had been reassigned to the A.E.C. The Senate found nothing to
back that conclusion. It did, though, discover a 2001 report
in which a commission employee complained that Iraq's nuclear
program ``had been stalled since the gulf war.''
Such ``key judgments'' are supposed to reflect the very
best American intelligence. (The Niger intelligence, for
example, was considered too shaky to be included as a key
judgment.) Yet as they studied raw intelligence reports,
those involved in the Senate investigation came to a
sickening realization. ``We kept looking at the intelligence
and saying, `My God, there's nothing here,' '' one official
recalled.
The Vote for War
Soon after the National Intelligence Estimate was
completed, Mr. Bush delivered a speech in Cincinnati in which
he described the ``grave threat'' that Iraq and its ``arsenal
of terror'' posed to the United States. He dwelled longest on
nuclear weapons, reviewing much of the evidence outlined in
the estimate. The C.I.A. had warned him away from mentioning
Niger.
``Facing clear evidence of peril,'' the president
concluded, ``we cannot wait for the final proof--the smoking
gun--that could come in the form of a mushroom cloud.''
Four days later, on Oct. 11, the Senate voted 77-23 to give
Mr. Bush broad authority to invade Iraq. The resolution
stated that Iraq posed ``a continuing threat'' to the United
States by, among other things, ``actively seeking a nuclear
weapons capability.''
Many Senators who voted for the resolution emphasized the
nuclear threat.
``The great danger is a nuclear one,'' Senator Feinstein,
the California Democrat, said on the Senate floor.
But Senator Bob Graham, then chairman of the Intelligence
Committee, said he voted against the resolution in part
because of doubts about the tubes. ``It reinforced in my mind
pre-existing questions I had about the unreliability of the
intelligence community, especially the C.I.A.,'' Mr. Graham,
a Florida Democrat, said in an interview.
At the Democratic convention in Boston this summer, Senator
John Kerry pledged that should he be elected president, ``I
will ask hard questions and demand hard evidence.'' But in
October 2002, when the Senate voted on Iraq, Mr. Kerry had
not read the National Intelligence Estimate, but instead had
relied on briefing from Mr. Tenet, a spokeswoman said.
``According to the C.I.A.'s report, all U.S. intelligence
experts agree that Iraq is seeking nuclear weapons,'' Mr.
Kerry said then, explaining his vote. ``There is little
question that Saddam Hussein wants to develop nuclear
weapons.''
The report cited by Mr. Kerry, an unclassified white paper,
said nothing about the tubes debate except that ``some''
analysts believed the tubes were ``probably intended'' for
conventional arms.
``It is common knowledge that Congress does not have the
same access as the executive branch,'' Brooke Anderson, a
Kerry spokeswoman, said yesterday.
Mr. Kerry's running mate, Senator John Edwards, severed on
the Intelligence Committee, which gave him ample opportunity
to ask hard questions. But in voting to authorize war, Mr.
Edwards expressed no uncertainty about the principal evidence
of Mr. Hussein's alleged nuclear program.
``We know that he is doing everything he can to build
nuclear weapons,'' Mr. Edwards said then.
On Dec. 7, 2002, Iraq submitted a 12,200-page declaration
about unconventional arms to the United Nations that made no
mention of the tubes. Soon after, Winpac analysts at the
C.I.A. assessed the declaration for President Bush. The
analysts criticized Iraq for failing to acknowledge or
explain why it sought tubes ``we believe suitable for use in
a gas centrifuge uranium effort.'' Nor, they said, did it
``acknowledge efforts to procure uranium from Niger.''
Neither Energy Department nor State Department intelligence
experts were given a chance to review the Winpac assessment,
prompting complaints that dissenting views were being
withheld from policy makers.
``It is most disturbing that Winpac is essentially
directing foreign policy in this matter,'' one Energy
Department official wrote in an e-mail message. ``There are
some very strong points to be made in respect to Iraq's
arrogant noncompliance with U.N. sanctions. However, when
individuals attempt to convert those `strong statements'
[[Page S10308]]
into the `knock-out' punch, the administration will
ultimately look foolish--i.e., the tubes and Niger!''
The U.N. Inspectors Return
For nearly two years Western intelligence analysts had been
trying to divine from afar Iraq's plans for the tubes. At the
end of 2002, with the resumption of United Nations arms
inspectors, it became possible to seek answers inside Iraq.
Inspectors from the International Atomic Energy Agency
immediately zeroed in on the tubes.
The team quickly arranged a field trip to the Nasser metal
fabrication factory, where they found 13,000 completed
rockets, all produced from 7075-T6 aluminum tubes. The Iraqi
rocket engineers explained that they had been shopping for
more tubes because their supply was running low.
Why order tubes with such tight tolerances? An Iraqi
engineer said they wanted to improve the rocket's accuracy
without making major design changes. Design documents and
procurement records confirmed his account.
The inspectors solved another mystery. The tubes
intercepted in Jordan had been anodized, given a protective
coating. The Iraqis had a simple explanation: they wanted the
new tubes protected from the elements. Sure enough, the
inspectors found that many thousands of the older tubes,
which had no special coating, were corroded because they had
been stored outside.
The inspectors found no trace of a clandestine centrifuge
program. On Jan. 10, 2003, The Times reported that the
international agency was challenging ``the key piece of
evidence'' behind ``the primary rationale for going to war.''
The article, on Page A10, also reported that officials at the
Energy Department and State Department had suggested the
tubes might be for rockets.
The C.I.A. theory was in trouble, and senior members of the
Bush administration seemed to know it.
Also that January, White House officials who were helping
to draft what would become Secretary Powell's speech to the
Security Council sent word to the intelligence community that
they believed ``the nuclear case was weak,'' the Senate
report said. In an interview, a senior administration
official said it was widely understood all along at the White
House that the evidence of a nuclear threat was piecemeal and
weaker than that for other unconventional arms.
But rather than withdraw the nuclear card--a step that
could have undermined United States credibility just as tens
of thousands of troops were being airlifted to the region--
the White House cast about for new arguments and evidence to
support it.
Gen. Richard B. Myers, chairman of the Joint Chiefs of
Staff, asked the intelligence agencies for more evidence
beyond the tubes to bolster the nuclear case. Winpac analysts
redoubled efforts to prove that Iraq was trying to acquire
uranium from Africa. When rocket engineers at the Defense
Department were approached by the C.I.A. and asked to compare
the Iraqi tubes with American ones, the engineers said the
tubes ``were perfectly usable for rockets.'' The agency
analysts did not appear pleased. One rocket engineer
complained to Senate investigators that the analysts had ``an
agenda'' and were trying ``to bias us'' into agreeing that
the Iraqi tubes were not fit for rockets. In interviews,
agency officials denied any such effort.
According to the Intelligence Committee report, the agency
also sought to undermine the I.A.E.A.'s work with secret
intelligence assessments distributed only to senior policy
makers. Nonetheless, on Jan. 22, in a meeting first reported
by The Washington Post, the ubiquitous Joe flew to Vienna in
a last-ditch attempt to bring the international experts
around to his point of view.
The session was a disaster.
``Everybody was embarrassed when he came and made this
presentation, embarrassed and disgusted,'' one participant
said. ``We were going insane, thinking, `Where is he coming
from?' ''
On Jan. 27, the international agency rendered its judgment:
it told the Security Council that it had found no evidence of
a revived nuclear weapons program in Iraq. ``From our
analysis to date,'' the agency reported, ``it appears that
the aluminum tubes would be consistent with the purpose
stated by Iraq and, unless modified, would not be suitable
for manufacturing centrifuges.''
The Powell Presentation
The next night, during his State of the Union address,
President Bush cited I.A.E.A. findings from years past that
confirmed that Mr. Hussein had had an ``advanced'' nuclear
weapons program in the 1990's. He did not mention the
agency's finding from the day before.
He did, though, repeat the claim that Mr. Hussein was
trying to buy tubes ``suitable for nuclear weapons
production.'' Mr. Bush also cited British intelligence that
Mr. Hussein had recently sought ``significant quantities'' of
uranium from Africa--a reference in 16 words that the White
House later said should have been stricken, though the
British government now insists the information was credible.
``Saddam Hussein,'' Mr. Bush said that night, ``has not
credibly explained these activities. He clearly has much to
hide. The dictator of Iraq is not disarming.''
A senior administration official involved in vetting the
address said Mr. Bush did not cite the I.A.E.A. conclusion of
Jan. 27 because the White House believed the agency was
analyzing old Iraqi tubes, not the newer ones seized in
Jordan. But senior officials in Vienna and Washington said
the international group's analysis covered both types of
tubes.
The senior administration official also said the
President's words were carefully chosen to reflect the doubts
at the Energy Department. The crucial phrase was ``suitable
for nuclear weapons production.'' The phrase stopped short of
asserting that the tubes were actually being used in
centrifuges. And it was accurate in the sense that Energy
Department officials always left open the possibility that
the tubes could be modified for use in a centrifuge.
``There were differences,'' the official said, ``and we had
to address those differences.''
In his address, the President announced that Mr. Powell
would go before the Security Council on Feb. 5 and lay out
the intelligence on Iraq's weapons programs. The purpose was
to win international backing for an invasion, and so the
administration spent weeks drafting and redrafting the
presentation, with heavy input from the C.I.A., the National
Security Council and I. Lewis Libby, Mr. Cheney's chief of
staff.
The Intelligence Committee said some drafts prepared for
Mr. Powell contained language on the tubes that was patently
incorrect. The C.I.A.wanted Mr. Powell to say, for example,
that Iraq's specifications for roundness were so exacting
``that the tubes would be rejected as defective if I rolled
one under my hand on this table, because the mere pressure of
my hand would deform it.''
Initelligence analyst at the State Department waged a quiet
battle against much of the proposed language on tubes. A year
before, they had sent Mr. Powell a report explaining why they
believed the tubes were more likely for rockets. The National
Intelligence Estimate included their dissent--that they saw
no compelling evidence of a comprehensive effort to revive a
nuclear weapons program. Now, in the days before the Security
Council speech, they sent the secretary detailed memos
warning him away from a long list of assertions in the
drafts, the intelligence committee found. The language on the
tubes, they said, contained ``egregious errors'' and ``highly
misleading'' claims. Changes were made, language softened.
The line about ``the mere pressure of my hand'' was removed.
``My colleagues,'' Mr. Powell assured the Security Council,
``every statement I make today is backed up by sources, solid
sources. These are not assertions.''
He made his way to the subject of Mr. Hussein's current
nuclear capabilities.
``By now,'' he said, ``just about everyone has heard of
these tubes, and we all know there are differences of
opinion. There is controversy about what these tubes are for.
Most U.S. experts think they are intended to serve as rotors
in centrifuges used to enrich uranium. Other experts and the
Iraqis themselves argue that they are really to produce the
rocket bodies for a conventional weapon, a multiple rocket
launcher.''
But Mr. Powell did not acknowledge that those ``other
experts'' included many of the nation's most authoritative
nuclear experts, some of whom said in interviews that they
were offended to find themselves now lumped in with a reviled
government.
In making the case that the tubes were for centrifuges, Mr.
Powell made claims that his own intelligence experts had told
him were not accurate. Mr. Powell, for example, asserted to
the Security Council that the tubes were manufactured to a
tolerance ``that far exceeds U.S. requirements for comparable
rockets.''
Yet in a memo written two days earlier, Mr. Powell's
intelligence experts had specifically cautioned him about
those very same words. ``In fact,'' they explained, ``the
most comparable U.S. system is a tactical rocket--the U.S.
Mark 66 air-launched 70-millimeter rocket--that uses the
same, high-grade (7075-T6) aluminum, and that has
specifications with similar tolerances,''
In the end, Mr. Powell put his personal prestige and
reputation behind the C.I.A.'s tube theory.
``When we came to the aluminum tubes,'' Richard A. Boucher,
the State Department spokesman, said in an interview, ``the
secretary listened to the discussion of the various views
among intelligence agencies, and reflected those issues in
his presentation. Since his task at the U.N. was to present
the views of the United States, he went with the overall
judgment of the intelligence community as reflected by the
director of central intelligence.''
As Mr. Powell summed it up for the United Nations, ``People
will continue to debate this issue, but there is no doubt in
my mind these illicit procurement efforts show that Saddam
Hussein is very much focused on putting in place the key
missing piece from his nuclear weapons program: the ability
to produce fissile material.''
Six weeks later, the war began.
Mr. BYRD. I yield the floor.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Mr. President, I have enormous respect for the Senator
from West Virginia, for his years of experience and his dedication to
the Constitution and his ability to protect the rightful prerogatives
of this body. I do, however, disagree with him, respectfully, on the
contents of his amendment.
[[Page S10309]]
I note, as I said this morning, the limitations in Senator Byrd's
amendment would inhibit the ability of the national intelligence
director to move people and money around to counter the threats facing
our country. That is a major reform that has been recommended not only
by the 9/11 Commission but by the witnesses before our committee and is
a major reform supported by the administration.
Senator Byrd argues that the transfer authorities in the underlying
bill cede too much power to the executive branch. But, in fact, the DCI
currently has transfer authorities.
This is not a novel concept. We give the NID more transfer authority
than the DCI currently has, but we are not taking power from Congress
in any way because our bill does not change the existing process
through which transfers must be approved by the appropriate
congressional committees.
Mr. President, I will have more to say on Senator Byrd's amendment
later.
Amendment No. 3950 To Amendment No. 3705
Mr. President, at this point, I would like to take the opportunity to
clear a pending amendment, so I ask unanimous consent that the pending
amendment be set aside, and I send to the desk a second-degree
amendment to the Collins-Carper-Lieberman-Coleman amendment No. 3705.
The PRESIDING OFFICER. Is there objection to the Senator's request?
Without objection, it is so ordered. The pending amendment is set
aside.
The clerk will report the amendment.
The legislative clerk read as follows:
The Senator from Maine [Ms. Collins], for herself and Mr.
Lieberman, proposes an amendment numbered 3950 to amendment
No. 3705.
Ms. COLLINS. 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 make certain technical amendments)
On page 5, after line 2, insert the following:
(7) Grant programs under the Robert T. Stafford Disaster
Relief and Emergency Assistance Act (42 U.S.C. 5121-5206).
On page 10, line 17, strike the semicolon and all that
follows through page 11, line 7, and insert a period.
On page 12, line 5, strike ``(5)'' and insert ``(6)''.
On page 12, lines 17 through 20, strike ``technical
assistance provided by any Federal agency to States and local
governments to conduct threat analyses and vulnerability
assessments'' and insert ``technical assistance provided by
any Federal agency to States and local governments regarding
homeland security matters''.
On page 18, line 9, insert ``secure'' after ``for''.
On page 23, line 18, insert ``on the basis of terrorist
threat'' after ``grant''.
On page 25, line 24, insert ``on the basis of terrorist
threat'' after ``distribute''.
Ms. COLLINS. Mr. President, this second-degree amendment addresses
several relatively minor concerns raised by some of the Members of this
body and the Department of Homeland Security about the underlying
amendment. I know of no objection to the second-degree amendment. The
changes it would make do not in any way affect the funding formula of
the underlying amendment.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. LIEBERMAN. Mr. President, I am pleased to rise in support of this
amendment. It builds on some extraordinary work done by the bipartisan
membership of the Governmental Affairs Committee on a separate bill
before we were assigned responsibility for this intelligence reform
months ago in which the chairman and Senator Carper played leading
roles. I give them both great credit.
There is nothing more difficult than funding formulas around this
place, for understandable reasons. I think this amendment strikes the
right balance in the distribution of homeland security grant funds. The
balance is to make certain we apply the dollars across our country in a
way that protects us against the enemy we face, the terrorist enemy we
face that is ruthless and unpredictable. To some extent, we think we
understand them. The probabilities are they will strike more at large
cities and visible and symbolic targets, but the reality is we cannot
have our focus on what this enemy will do to us or aspire to do to us,
be limited to the dreadful and tragic experience of September 11 in
which they hit visible symbols of America's greatness because this same
terrorist ilk has struck throughout the world at other kinds of targets
that are not so visible, at buses with innocents on them, and other
means of transportation, at gatherings of people in Iraq adjacent to
places where Iraqis are lining up to apply to become security officers.
So that is the balance we are trying to strike which is to give
special attention to the larger cities that are more likely to be
targets but to understand that in a way that we have never experienced
in our history before, all of America is potentially a target because
these people do not ever play by anybody's rules of warfare. They
strike at the most vulnerable targets. That means they could strike
anywhere.
The Governmental Affairs Committee spent many months working on this
compromise legislation. The amendment incorporates the text of that
Governmental Affairs legislation, unanimously approved, to help
streamline our funding for first responders around America. It ensures
that a very significant part of the homeland security funding will be
determined on the basis of the risks and threats that particular
communities face, which moves us substantially in the direction that
the 9/11 Commission recommended.
At the same time, this amendment will guarantee that each State, and
therefore the localities under the State, continues to receive a
minimum amount of funding to build up essential capabilities to both
prevent and respond to a potential terrorist attack.
So I am pleased this amendment appears to be acceptable on both
sides. I join in urging its adoption.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Mr. President, as the Senator from Connecticut has
indicated, the underlying amendment would implement the Homeland
Security Grant Enhancement Act. This legislation is the product of
three hearings and 2 years of negotiation on the Governmental Affairs
Committee. It was approved by a unanimous vote, and it currently has 29
cosponsors.
It is supported by Senators from big States, such as Michigan and
Ohio, and small States, such as Maine and Delaware. The widespread
support in the Senate demonstrates that the amendment takes a balanced
approach to homeland security funding. It recognizes that a threat-
based funding formula is a critical aspect, but it also preserves and
recognizes the fact that first responders in every State stand on the
front lines of securing the homeland.
I am constantly reminded that two of the hijackers on 9/11 began
their journey of death and destruction from Portland, ME. So small
States are not immune from being used as staging grounds for terrorist
attacks.
I think we have come up with a carefully balanced formula that will
help make our Nation safer. Secretary Ridge frequently reminds us that
homeland security starts with hometown security. Our legislation
recognizes that as well.
I note that the legislation is supported by a wide variety of
organizations, including the National Governors Association, the
National Council of State Legislatures, the Council of State
Governments, the National Association of Counties, the National League
of Cities, Advocates for EMS, the International City/County Management
Association, the Fraternal Order of Police, and the Fire Chiefs
Association.
I know the Presiding Officer is very familiar with this issue in his
capacity as the distinguished chairman of the Homeland Security
Appropriations Subcommittee, and we have enjoyed working closely with
him and his staff as well.
I want to mention one aspect of the underlying bill; that is, it
would provide greater flexibility in the use of homeland security funds
so we can ensure that if a State needs to have more training as opposed
to buying more equipment, there is more flexibility for the use of
those funds in a flexible manner via a waiver from the Secretary of
Homeland Security.
This was a particular concern to the Senator from Missouri, Mr.
Talent. I know having that flexibility will enable our first
responders, whether they live in Maine, Missouri, or Mississippi, to be
better prepared.
[[Page S10310]]
Mr. President, I know of no further requests for debate on the
second-degree amendment nor on the underlying amendment.
The PRESIDING OFFICER. Is there further debate?
If not, the question is on agreeing to the second-degree amendment
No. 3950.
The amendment (No. 3950) was agreed to.
Ms. COLLINS. I move to reconsider the vote, and I move to lay that
motion on the table.
The motion to lay on the table was agreed to.
Mr. LEAHY. Mr. President, I am pleased that the Senate today will
accept a bipartisan amendment, No. 3705, to the National Intelligence
Reform Act of 2004, S. 2845, offered by Senator Collins, for myself and
eight other cosponsors, that will revise the formula for the allocation
of State and local homeland security grant funding.
Homeland security is a national responsibility shared by all States,
regardless of size. Each State has basic terrorism preparedness needs
and, therefore, a minimum amount of domestic terrorism preparedness
funds is necessary for each State. Our first responders in each and
every State are on the front lines in defending against and preparing
for terrorist attacks. We need to ensure that they receive the funding
they need to prepare for and respond to such attacks.
Recognizing that every State and community should have helped to meet
those needs, I authored a minimum formula for State and local basic
formula grants to emergency responders that are distributed to States
by the Department of Homeland Security Office of State and Local
Government Coordination and Preparedness. That formula guarantees that
each State--regardless of size--receives at least 0.75 percent of the
national allotment to help meet their national domestic security needs.
Congress continues to recognize that every State and community--rural
or urban, small or large--has basic domestic security needs and merits
the Federal help to meet those needs. Both the Senate and House
Homeland Security appropriations bills for Fiscal Year 2005 keep the
all-State minimum formula for first responder grants that are
distributed to the States.
Representatives and officials from urban States and cities have
argued that Federal money to fight terrorism is sent to areas that do
not need it and it is ``wasted'' in small towns. However, Congress has
shown that it recognizes these highly populated, highly threatened and
highly vulnerable areas have terrorism preparedness needs beyond those
basic needs for each State. That is why we in the Senate last month
included $1.2 billion for discretionary grants to high-threat urban
areas for the coming fiscal year. The House-passed Homeland Security
appropriations bill included $1 billion for the Urban Areas Security
Initiative.
Not all those who are leaders in urban areas believe that every cent
of State and local homeland security funding should go solely to first
responders in our cities. I recall this past August, former New York
City Mayor Rudy Giuliani brought a warning to emergency first
responders in my home State of Vermont that should serve as a notice to
all Americans. He said there was no doubt in his mind that another
serious attack on the United States would be attempted, and he said it
could just as easily be small town America rather than another large
city.
``The risk of another attack is a very great one. . . . The biggest
city and the smallest towns, both had to be prepared,'' he was quoted
by The Rutland Herald. While in Vermont, Mr. Giuliani publicly lauded
the value of the work that first responders in small local communities
do day after day. I join him in that praise.
I remind my colleagues that the town of Shanksville, PA, where the
fourth hijacked airliner, United flight 93, crashed on September 11,
2001, is a tiny town of 245 residents with only one fire truck in a
small fire station. On that day, Shanksville's police officers, fire
fighters, and EMS officers who raced to the crash site of flight 93
were on the front lines of terrorism response. It is a threat we cannot
always predict but one that we must always try to be prepared to meet.
Officials in the current administration hold the same view. In an
interview published in the 2004 edition of The Year in Homeland
Security, the Director of the Office for Domestic Preparedness, Sue
Mencer, stated the following: . . . `` there should be some base level
funding to each state and territory regardless of size or population
density. There are infrastructures everywhere, although they may not be
so dramatic as a Brooklyn Bridge or Golden Gate. There are critical
underground pipelines, highways, bridges that we don't think of
automatically but still need to be protected.''
Critics of the all-State minimum seem to forget that since the
September 11, 2001, terrorist attacks, we have asked all-State and
local first responders to defend us as never before on the front lines
in the war against terrorism. Emergency responders in a rural State
have the same responsibilities as those in any urban State to provide
enhanced protection, preparedness and response against terrorists.
Fostering divisions between States ignores the real problem: We
should be looking to increase the funds to our Nation's first
responders. The Hart-Rudman report on domestic preparedness argues that
the U.S. will fall approximately $98.4 billion short of meeting
critical emergency responder needs over the next 5 years if current
funding levels are maintained. Clearly, the domestic preparedness funds
available are still not enough to protect from, prepare for, and
respond to future domestic terrorist attacks anywhere on American soil.
I am proud to join Senator Collins and my eight colleagues in
cosponsoring her bipartisan amendment to revise the formula for the
allocation of State and local homeland security grant funding. This
amendment maintains the 0.75 percent minimum that each State currently
receives under the USA PATRIOT Act to help ensure that every State can
respond to its preparedness needs, but it also clarifies and recognizes
the fact that some States indeed have high-threat areas. I will
continue to oppose any efforts to reduce adequate support and resources
for our police, fire, and EMS services in each State and community as
they continue to protect us from terrorists or respond to terrorist
attacks, as well as carry out their other preparedness
responsibilities. We should adequately meet the needs of all of our
dedicated first responders and resist efforts that would pit them
against each other.
We must continue our efforts to ensure the readiness of our States
and communities. Should the United States experience terrorist attacks
like those we endured over 3 years ago, I want to make sure that each
police officer, firefighter, or rescue worker who responds to those
attacks has the best training and equipment available to get the job
done. I applaud all the hard work of all our State and local emergency
first responders who not only continue to carry out the day-to-day
responsibilities they have always had, but also find themselves serving
on the front lines in the war on terrorism.
Amendment No. 3705, As Amended
Ms. COLLINS. Mr. President, I know of no further debate on the
underlying amendment, the Collins-Carper-Lieberman-Coleman amendment
No. 3705.
The PRESIDING OFFICER. The question is on agreeing to the amendment
No. 3705, as amended.
The amendment (No. 3705), as amended, was agreed to.
The PRESIDING OFFICER. If there is no objection, the motion to table
is laid on the table.
Mr. LIEBERMAN. I thank the Chair.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Mr. President, I note the Senator from North Dakota is
on his feet. I wonder if the Senator could inform us whether he is
seeking recognition to talk about the bill or offer an amendment or
morning business.
Mr. DORGAN. Mr. President, I seek recognition to speak about the bill
and about Senator Byrd's amendment and generally about the subject the
Senate is considering.
The PRESIDING OFFICER (Mr. Thomas). The Senator from North Dakota.
Amendment No. 3845
Mr. DORGAN. Mr. President, let me say that the Senator from West
Virginia has done a great service today by
[[Page S10311]]
pointing out that there is a substantial difference between flexibility
and accountability. I cosponsored the amendment offered by Senator
Byrd, not because I want less flexibility but because I demand and
expect that we should have accountability in terms of how money is
spent by the Federal Government, especially in these areas.
I don't think there is one instance in which the administration would
argue they have not been given the flexibility to move funding from one
account to another in order to accomplish their specific goals and
purposes in defeating terrorism. The Congress has been extraordinarily
generous in working with the administration in every conceivable way to
move money around to areas where they need that money with which to
fight terrorism.
Senator Byrd, in his amendment, indicates that he thinks we should
continue to have some accountability. Under the pending bill, the
Treasury Secretary is authorized to create appropriations accounts, to
which the national intelligence director then can transfer funds, and
there are really no limits on how those funds would be used at this
point.
Let me give a short description of some of the angst I have about
this when you just provide funding and say: Katey, bar the door, do
what you want, and don't worry about how we feel about it.
This is a tiny little issue, but there is a small area down in the
Treasury Department called the Office of Foreign Asset Control, OFAC.
Its purpose is to track money that goes to fund and support terrorist
organizations so we can shut down that funding. That is the purpose of
OFAC. I found that OFAC has 21 people tracking American tourists
traveling to Cuba. These are American citizens who are suspected of
trying to take a vacation in Cuba. We have 21 people in an agency
designed to try to interrupt the flow of money to terrorists who are
now spending their time trying to shut down travel by the American
people to Cuba.
I will give you an example. A young woman named Joni Scott went to
Cuba. She didn't have a license to go there. She went there to
distribute free Bibles on the streets of Havana and other Cuban cities.
She is a devoutly religious young woman. I have met with her. She went
to Cuba to distribute free Bibles. OFAC tracked her down and slapped
her with a $10,000 fine because she didn't have a general license to go
to Cuba.
And there is Joan Slote, a 76-year-old grandmother who likes to ride
bicycles, who signed up with a Canadian company for a bicycle tour of
Cuba. She happens to be a senior Olympian who rides bicycles in the
Senior Olympics. They tracked her down and slapped a $10,000 fine on
her. It was later reduced, but they decided they were going to try to
attach her Social Security check because she did not pay her fine on
time. That was because she had been in Europe. She rushed back home
when her son had a brain tumor and was dying, went to her son's
bedside, and was not at home to get her mail. What was her
transgression? She was an American who decided to ride a bike in Cuba.
My point is this: This is a rather small agency, OFAC. And when Paul
O'Neill was the Secretary of the Treasury, I asked him at a hearing,
because I was the chair of the appropriations subcommittee--I said: Mr.
Secretary, wouldn't you really prefer to use all of those assets at
OFAC to track terrorists? He didn't answer for three or four times.
Finally, about the fifth time, he said: Of course.
If I had my choice, that would be the most productive thing. We now
discover that more and more of those people at OFAC are being used to
track Americans who travel to Cuba. I don't understand that. But it
goes to the point that Senator Byrd has made. Should we have some
accountability? When we decide to take the taxpayers' money and
appropriate that money, should we have some accountability with respect
to how the money is spent? This isn't about Republicans or Democrats,
conservatives or liberals; it is about accountability.
My colleague from West Virginia, a unique, extraordinary Senator,
often pulls from his pocket that well-worn and underlined copy of the
Constitution and he asks whether the Senate is carrying out its
responsibility. Because after all, this is a Government with several
branches. We want to work together. We certainly all want to fight
terrorism. There is no question about that. We are willing to
appropriate the funds with which to combat terrorism, but we are not
all willing to say: By the way, here is the check, spend it the way you
want. Congress needs to be involved.
This is not about turf. This amendment described today by Senator
Byrd is a bipartisan amendment. But it is not about turf. It is about
Republicans and Democrats together who have joined to take a look at
this issue and say: In this circumstance, we believe there ought to be
some fundamental accountability.
Mr. LIEBERMAN. Mr. President, would the Senator yield for a question?
Mr. DORGAN. I am happy to yield.
Mr. LIEBERMAN. I appreciate what the Senator said. I must say that
Senator Collins and I in crafting the underlying bill were very careful
to make sure we did not diminish the accountability the national
intelligence director will have to the internal executive branch budget
procedures or to Congress. There is a movement of authority here. The
movement of authority is from the Department of Defense to the national
intelligence director. The Byrd amendment would eliminate that, would
force the money to go back to the Department of Defense.
I want to assure the Senator that internally the limits of transfer
authority in our bill are quite clear. The national intelligence
director has to get approval from the Office of Management and Budget.
More to the point, on congressional oversight, our legislation
doesn't alter today's balance between the executive and legislative
branch at all. For example, on page 28, paragraph (4) of the bill:
Any transfer of funds under this subsection shall be
carried out in accordance with existing procedures applicable
to reprogramming notifications for appropriate congressional
committees.
Page 29, paragraph (5)(A):
The National Intelligence Director shall promptly submit to
appropriate committees of Congress a report on any transfer
of personnel . . .
And finally: ``Any transfer of funds or personnel cannot exceed
applicable ceilings established in law for such transfer'' by that
Congress.
So my question is why my friend from North Dakota thinks in any way
this proposal, which does move budget authority from the Defense
Department to the national intelligence director, alters the authority
of Congress to hold these people accountable?
Mr. DORGAN. Mr. President, I cosponsored the amendment not because of
what I think but because of what I know. Let me describe for the
Senator from Connecticut a circumstance that I believe means less
accountability for the Congress and a circumstance that puts the
Congress in a position of having to act retroactively with respect to
an action that is already taken which dramatically changes the
prerogatives of Congress.
As I understand it, under the bill, the Secretary of the Treasury is
authorized to create appropriations accounts to which the national
intelligence director then can transfer funds. As I further understand
it, the underlying bill includes no limits on how those funds can be
used once they are transferred.
As I understand it, the intelligence director would be authorized to
transfer about $3.5 billion from the defense budget, and that gives the
director a substantial amount of transfer authority never contemplated
by Congress. The circumstance is that Congress would have to take
action only retroactively to transfers that are made by the national
intelligence director, which means that director begins and works to
expend funds by their own volition.
My colleague from Connecticut indicates that they must get approval
from the Office of Management and Budget. I would point out, that is
just the administration giving itself approval to do what it wants.
That is not a check and balance of any type.
My point is this: Once these transfers are made into this account and
from the account, the only action that would then be available to
Congress is some retro-action to say that is not what we intended. That
puts Congress in a circumstance that, in my judgment, is
disadvantageous for the body
[[Page S10312]]
in this Government that has the power of the purse.
I go back to this point, and this is a small point, but it is one
that is instructive to me: If we do not tell those for whom we
appropriate money how we want those funds to be spent, then, Katey, bar
the door. Then you have a circumstance of the type I just described to
my colleagues. I bet there is not one colleague in this Chamber who
would stand up and say this young woman named Joni Scott should have
been fined for going to Cuba to distribute free Bibles. I bet there is
not one person in this Chamber who would stand up and say: I think we
ought to fine a good Christian, a young woman who goes to Cuba and
distributes free Bibles.
That is what the people in OFAC are doing. They are tracking people
down, such as Joni Scott. That is not the intent, in my judgment. When
we appropriate funding--and we are going to appropriate a lot of it--we
are in every circumstance accommodating to the administration when it
needs to move money for a good purpose, to combat terrorism. When we
appropriate that money, we demand accountability. We expect and demand
accountability. That is what the Byrd amendment provides.
It is not a radical amendment. First of all, it is bipartisan, and,
second, it is just the most fundamental step that, in my judgment, we
ought to take as a Congress because we, after all, are the ones who
decide how much the American people pay in taxes, what do they have to
provide for Government, and then we are the stewards of how that money
is spent.
Without this amendment, we have lost control over the stream of this
funding. That is why I was a cosponsor of the Byrd amendment, again a
bipartisan amendment.
I think it is the right thing for us to do.
I must say to my colleague from Connecticut, I honestly do not think
this amendment in any way undermines the Collins-Lieberman bill. I
think, frankly, it will strengthen that bill and say to every Member of
the House and Senate, Republicans and Democrats: We are going to do
this in a way that requires accountability. What better message, in my
judgment, than that message? So I actually think it strengthens the
underlying bill.
Mr. LIEBERMAN. Mr. President, if I may respond.
Mr. DORGAN. I will be happy to yield for a question.
Mr. LIEBERMAN. Then I will be happy to yield back.
There is a misunderstanding, and I want to see if I can clarify it.
There are three parts of the amendment offered by the Senator from West
Virginia and others. Two have to do with transfers of personnel and
money and whether they can be limited in any way.
We believe it is not right for Congress to limit the authority--here
I mean amounts of money or personnel of the nature of how long the
national intelligence director, whom I have been calling the general we
do not have now of our intelligence forces, can transfer personnel or
money to fight the war on terrorism, to plug a gap that he sees
existing in his ranks, to respond to a crisis that occurs somewhere in
the world. That is the kind of flexibility we want to give him. That is
subject to oversight, but that is a limitation on the power the
national intelligence director has in our bill, recommended by the 9/11
Commission, supported by the families of those who died on 9/11.
That is one part. We can argue about that. But it is definitely a cut
in the authority of the national intelligence director to help us wage
war on terrorism.
Mr. DORGAN. Mr. President, if I can reclaim my time for a moment on
that point because I think this is a fruitful discussion, the authority
in the underlying bill given to the national intelligence director is
extraordinary and above that which we provide in most other
circumstances with respect to appropriations. The two Senators may well
intend that. I expect they do intend that. Our only point is there has
never been a circumstance, to my knowledge, where someone has come to
us on an urgent basis saying, We need to plug this hole, we need to
move funds, there has never been a circumstance in which the Congress
says: No, you cannot do that. We have always said: Absolutely, let us
work with you.
Mr. LIEBERMAN. Mr. President, I want to make clear again, there is an
alteration of authority and accountability here but not between the
executive branch and Congress. The alteration of authority and
accountability is between agencies of the executive branch, between the
Defense Department and the national intelligence director because, as
has been said over and over--and talk about accountability, we are
spending, by most estimates--and I cannot say the exact number because
it is classified--we spend over $40 billion a year on our intelligence
agencies, and the 9/11 Commission and Members of this Congress know it
and tell us there is no one in charge. What kind of accountability is
that?
One of the main purposes of this bill is to put someone in charge,
the national intelligence director, and to hold him accountable.
I want to repeat, there is nothing in this bill--there may be some
alteration of authority that comes through in the congressional
oversight reforms that are coming from Senator McConnell and Senator
Harry Reid among different committees of the Congress, but all the
review and approvals that Congress has for appropriations now will
exist when this bill passes. But the national intelligence director
will have more authority than the Director of Central Intelligence has
today. It is true the Department of Defense, which currently,
strangely, receives more than 80 percent of the intelligence budget and
then funnels it out to the intelligence community, will lose some of
that authority.
There is nothing in this bill--if you see it, bring it to us. Senator
Collins and I will review it and see if we can alter it. That is not
our intention. I want to say what bothers me about the amendment, apart
from the transfer, is that it strikes a section in our bill which we
thought was process, was routine, which simply says: If we are to give
this national intelligence director some authority for the budget, we
have to give the Treasury the authority to set up accounts for that
person in the Treasury so he can spend it, but he has to spend it
according to the appropriations of Congress. He has to spend subject to
all the oversight, notification, and accountability of Congress.
I remain puzzled, and I do feel very strongly that this amendment
will do serious damage to our proposal, unanimously adopted by the
committee based on recommendations of the 9/11 Commission and strongly
supported by the families of the victims of 9/11.
Mr. DORGAN. Mr. President, let me just say, first of all, you can
delegate authority, but you cannot delegate responsibility. No one can
delegate responsibility. We have certain responsibilities for the
taxpayers' money. I must say the amendment that has been offered, in my
judgment, conforms to the Constitution's understanding of what our
responsibilities are.
We have a disagreement. I don't want that disagreement to undermine
my comments about the work that Senator Collins and Senator Lieberman
have done. They have done a lot of work on this bill, perhaps more than
anyone else in the Congress, with hearing after hearing after hearing.
Very few of us not on that committee understand the hours and the work
they put in on this product. I don't mean by cosponsoring this
amendment to denigrate or undermine their work, I mean to improve on
that work.
And let me just make this point: We have a very fundamental
disagreement, the Senator from Connecticut and I, because he believes
there is no new authority given to the national intelligence director.
As I understand this, what happens is, the Treasury Secretary creates
appropriations accounts, and he creates appropriations accounts to
which the national intelligence director can then transfer funding.
I also understand under current circumstances, several billion
dollars would be transferred to those accounts, and then at some point
later, if the Congress determines the expenditures for which that sum
of several billion dollars has been committed is not appropriate to
what the Congress intended, Congress can then retroactively evaluate
how to deal with that. I am saying I believe it puts us in a position,
historically, that we are not
[[Page S10313]]
in with respect to our role as appropriators.
I think the circumstances have always been that money is appropriated
through an appropriations process, not through an authorization. The
bill we have today is an authorization. I happen to believe this
authorization bill should give some additional authority to a new
person--in this case the national intelligence director--but I am going
to speak for a moment, when we finish this discussion, about the
stovepipes and my concerns about what is going on in intelligence
generally and why we are in a position, I think, of some vulnerability
based on what is not being done.
So I happen to think that it is useful to put someone in charge, but
putting someone in charge does not mean that we ought to say to them,
oh, by the way, here is a pot of money, move it around as you wish, let
us know how you used it, and then we will take a look at it and see
whether we evaluate that to have been appropriate use. That is not the
way we do things in Congress.
Mr. LIEBERMAN. Will the Senator yield for a moment?
Mr. DORGAN. Of course, I would be happy to yield.
Mr. LIEBERMAN. I could not disagree more with the Senator's
understanding of the language in the bill. If there is any basis to the
Senator's understanding, we ought to sit together and see if we can
fashion a change, because the intention, as I understand it--and
perhaps the Senator from Maine may want to speak to this section--was
to simply make clear that as we are giving budget authority, and we are
giving authority to the NID, but we are holding him or her
accountable--as we give that authority to the NID, an account has to be
created in the Treasury where he can receive that money, which now goes
to the Defense Department.
Our reading of this part of this amendment was that if the formation
of these accounts for the national intelligence director at the
Treasury is prohibited, then the money is going to go back to Defense
again and they are going to undercut the new national intelligence
director and go back to the stovepipes.
We have no intention to create pots of money that the NID will do
whatever he wants with. Incidentally, any transfer of funds from within
the intelligence community--and the budget of this agency itself is not
going to be large; it is going to oversee a budget for agencies that is
going to be large--will have to be made according to the normal
procedures with notification to Congress. We have not altered that at
all.
We have even said explicitly that the power--we want to create as
much strength in this office as possible. The power in the
Appropriations Committee each year to set certain ceilings on transfers
remains untouched. We reaffirm it in our proposal.
So we have very different views of this part of the Byrd amendment,
and if there is any basis for what the Senator from North Dakota is
saying, we ought to sit down and figure out how to correct it because
we just want to help this office to work. We do not want to give them
any authority to hold billions of dollars of money without holding them
accountable.
Mr. BYRD. Will the Senator yield?
Mr. DORGAN. I would be happy to yield to the Senator from West
Virginia.
Mr. BYRD. Why not take more time? What is all the rush? Why not take
time? That is all I am asking for is take time. The distinguished
Senator has offered to sit down with the distinguished Senator from
North Dakota. Why do we not take time and try to work this out? There
are many other questions. That is what I am asking. Let us have more
time. We are being forced to operate under the gun here and that does
not lend itself to very wise legislation. That is what I am asking: How
about more time? We might resolve several of these problems then.
Mr. LIEBERMAN. I say to the Senator from West Virginia----
Mr. DORGAN. I would be happy to yield for a response.
Mr. LIEBERMAN. I thank the Senator, and I will give it right back.
I say to the Senator from West Virginia most respectfully, we are
here. We have been working on this bill in our committee since the end
of July. We have listened to a lot of people in the committee. We have
altered parts of it. Just last week in 5 days of consideration, several
of our colleagues introduced amendments. We thought they would do
damage to the bill but they had some merit. We reasoned with them. We
came up with clarifications. Sometimes we accepted whole amendments.
Perhaps there is some lack of clarity in this particular part that we
can resolve together, but on the overall question, I say to Senator
Byrd, we do not have time. It is 3 years plus since these terrorists
struck America and killed 3,000 of our innocents, men, women, children.
Every form of citizen and noncitizen happened to be in the wrong place
at the wrong time.
The PRESIDING OFFICER. The Senator from North Dakota has the floor.
Mr. DORGAN. Mr. President, let me reclaim my time.
Mr. LIEBERMAN. Well, I did not finish but he can take it over. I just
want to say, we are under threat. This Capitol----
The PRESIDING OFFICER. The Senator yielded for the purpose of
answering questions not for a debate.
Mr. LIEBERMAN. I thank the Chair.
Mr. DORGAN. In my judgment, the discussion we have just had is easily
resolved. Either the Senator is providing much greater authority and
therefore more flexibility at the expense of less accountability to the
Congress or he is not. As I read this, I believe the amendment that has
been offered by Senator Byrd, Senator Stevens, Senator Inouye, Senator
Warner, myself and others, a bipartisan amendment, does not in any way
weaken the bill that came to the Senate floor on which the Senator has
spent a lot of time. I think it, in fact, strengthens it. It
strengthens the role of Congress and I think makes this a better bill.
So I understand the Senator believes that the way the Senator has
created this underlying Collins-Lieberman bill does not provide less
accountability for Congress. The Senator has described it as much
better flexibility, and that flexibility, as I read this, comes at the
expense of accountability for the Congress.
My only point is, all of us want exactly the same thing. We want this
to work. If there is anybody in here who does not want this to work,
they do not belong in this Chamber. We want this to work. Why do we
want it to work? Because we know people want to murder innocent
Americans. They want to commit acts of terror in this country and we
need to stop them.
Now, how do we stop them? With good intelligence.
I cannot say how profoundly disappointed I am at the poor
intelligence we have been given as a Congress in recent years. Somebody
needs to answer to that. Somebody needs to be accountable for that. In
part, that is what Senator Lieberman and Senator Collins are trying to
do with this legislation. That is why I commend them for their work.
Let me describe a continuing problem that we have with our law
enforcement and intelligence communities in their efforts to prevent
another terrorist attack.
On September 10, 2001, the day before 9/11, two messages apparently
related to the 9/11 hijackings were intercepted by our Government, by
the National Security Agency. The Arabic language messages said, ``The
match is about to begin'' and ``tomorrow is zero hour.''
Those messages were not translated until the day after 9/11.
You would think that the FBI's translation capabilities would have
been vastly improved in the intervening three years. Yet last week we
learned that the Inspector General of the Department of Justice had
issued a report, which found that three years later, the FBI has
neglected to translate hundreds of thousands of hours of intercepted
communications among suspected terrorists.
This is not about politics at all. There is no partisanship in this.
The question is, Do the FBI, CIA, the NSA, and others do an effective
job or do they not? Can we prevent acts of terrorism or can we not?
Let me read this, from the Inspector General's report: Three years
after September 11, more than 120,000 hours of potentially valuable
terrorism-related recordings have not yet been translated by the
linguists at the FBI.
[[Page S10314]]
In fact, some recordings have been deleted from audio computer files,
and FBI officials speaking on condition of anonymity said officials
have had to go back to original al-Qaida recordings on some occasions
to try to restore them, after realizing that copies had been deleted
because of capacity problems.
The inspector general's report said the linguists might not have
realized that material was deleted unless a case officer simply
happened to notice it missing from the final transactions. The FBI had
failed to institute necessary controls to prevent critical audio
material from being automatically deleted.
After September 11, 2001, the FBI director said this:
The FBI needed to change from an agency primarily focused
on investigating crime to one whose primary focus is the
prevention of future terrorist attacks.
The Inspector General says:
Yet necessary system controls have not been established to
prevent critical audio materials from being automatically
deleted, such as protecting sessions of the highest priority
on digital collection systems, active on-line storage until
linguists review them.
This is the Inspector General, again. He says:
The results of our tests showed that three of our FBI
offices tested had al-Qaida sessions that potentially were
deleted by the system before linguists had a chance to review
them.
There is something wrong here. How can you have 120,000 hours of
intercepted phone messages and all kinds of audio recordings--
terrorists, al-Qaida recordings--that have never been listened to? Is
there a recording in that 120,000 hours that sounds like the recording
on September 10, 2001, a recording that says: ``Tomorrow is the zero
hour,'' and no one has listened to it? I don't know.
The American people understand, I think, that the capability of our
intelligence system, the CIA, the FBI, and others, will determine
whether we are successful in preventing another terrorist attack.
So it is disheartening when you see the same failures cited over and
over, with little improvement.
Let's go back to August 2000, before this administration took over.
In that month, we had a report of the National Commission on
Terrorism--a report authorized by this Congress, issued by a commission
chaired by Ambassador Paul Bremer. This was the same Paul Bremer who
later went on to head the Coalition Provisional Authority in Iraq.
The Bremer commission, 4 years ago--this is before 9/11--had this to
say:
The FBI's ability to exploit the increasing volume of
terrorism information has been hampered by aging technology.
All U.S. Government agencies faced a chronic shortage of
linguists to translate raw data into useful information. This
shortage has a direct impact on our counterterrorism efforts.
Mr. Bremer said then, over 4 years ago, that what we need are
additional linguists, we need to interpret the raw data, we need to be
able to understand it, determine what it means for this country's
safety.
Here we are 4 years later and we get an Inspector General's report
that says there are 120,000 hours of potentially valuable terrorism-
related recordings not even translated.
Indeed, the Inspector General of the Department of Justice concluded
that one-third of terrorism-related audio recordings were not
translated within 12 hours as mandated by the FBI rules. There are
123,000 hours in languages primarily related to counterterrorism--
Arabic, Farsi, Urdu, Pashtun--that have not been translated; 370,000
hours of recordings in languages connecting to counterintelligence
probes had not been deciphered by that time. That is nearly one-half
million hours potential leads to terrorist plots, sitting there,
uninterpreted.
We can pass legislation. We can have a debate about all these issues.
But if agencies can't get their act together, can't do the job, don't
even interpret the al-Qaida recordings to understand what is there, how
on Earth are we going to protect this country?
The 9/11 Commission, incidentally, the Commission which has prompted
this bill coming to the floor of the Senate, says the following:
The analysts for the 9/11 Commission
. . . had difficulty getting access to the FBI and
intelligence community information they were expected to
analyze. The poor state of the FBI's information systems
meant that such access depended in large part on an analyst's
personal relationships with the individual in the operational
units or squads where the information resided. For all of
these reasons, prior to 9/11 relatively few strategic
analytic reports about counterterrorism had been completed.
Indeed, the FBI had never completed an assessment of the
overall terrorist threats to the U.S. homeland.
And I continue to quote:
The FBI did not have an effective intelligence collection
effort. The FBI did not dedicate sufficient resources to the
surveillance and translation needs of counterterrorism
agents. It lacked sufficient translators proficient in Arabic
and other key languages, resulting in a significant backlog
of untranslated intercepts.
This from the 9/11 Commission. Following the release of this
information from the 9/11 Commission, we now have the release of the
Inspector General's report, which is absolutely stunning. It is
astonishing to receive a report that, nearly 4 years after a
recommendation was made by the Bremmer-Sonnenberg Commission, 3 years
after we were attacked on 9/11, that we have 120,000 hours of
recordings of intercepted information, a portion of which is from al-
Qaida, and it has not yet been interpreted or translated. This is
unbelievable.
I talked for a few moments about accountability. Where is the
accountability here? Who is accountable for that? Who is responsible
for that?
I want to make one other point, if I might. Again, I know I had a
discussion with my colleague from Connecticut. My colleague from Maine
is on the floor. I don't know whether she heard me, but I said I
appreciated the work the two have done to bring this to the floor. Much
of it has great merit, in my judgment. Much will be very protective of
this country's interests and advances our interests in combating
terrorism. I do support the amendment because I think that amendment
will strengthen the bill. But let me say one other thing. The 9/11
report is a roadmap and we are using that roadmap in an attempt to
construct some legislation here. Other roadmaps, for example, include
this Inspector General's report of which we have just become aware.
That ought to tell us something about where we are headed here. It is
not good.
Let me mention one additional point. As we evaluate what yet needs to
be done to protect this country, and discuss issues of transparency,
there remain 28 pages of information up in the Intelligence Committee
that should still be released. They are classified ``top secret.'' Some
in the Senate have read this material; all have the opportunity to read
it. It comes from the December 2002 report of the Joint Intelligence
Committee of the House and Senate that was sent to the White House and
then was published. That report was on 9/11, what happened, and how it
happened. That report was published in the December 2002 with 28 pages
missing, and the 28 pages deal with Saudi Arabia. That is what has been
said publicly, disclosed publicly, but yet they are deemed top secret
and the American public is not able to see them. Then, the chairman of
the Senate Intelligence Committee, Richard Shelby, indicated that he
thought 95 percent of it could be easily declassified. The Foreign
Minister of Saudi Arabia thought it should be declassified. Yet it has
been classified by the White House, which refuses to share this
information with Congress and the American people.
I believe, once again, that all of us should continue to ask the
White House to declassify those 28 pages. That, too, is a contribution
to understanding what happened and what we do about it.
Those 28 pages, in my judgment, should be released. They cannot as
long as they are classified ``top secret.'' In my judgment, they should
be declassified. Again, Senator Shelby indicated that he thought 95
percent of it could easily be declassified, and, as I indicated, the
Foreign Minister of Saudi Arabia called for its declassification.
Considering that fifteen of the 19 terrorists who struck this country
were Saudis, I think our country deserves to get to the bottom of this.
I believe, once again, as we finish discussing these issues on
intelligence, 9/11, and how to strengthen this country, how to prevent
future acts of terrorism, that these 28 pages ought to be made
available to the American people.
[[Page S10315]]
I came to the floor today to talk about this inspector general's
report and to weigh in briefly on an amendment offered by my colleague,
Senator Byrd.
Let me conclude as I started by saying that I believe Senator Byrd
has done a great service to the Senate by once again saying there is
merit in many of these proposals and that he doesn't come to the floor
to denigrate these proposals. He comes to the floor to strengthen these
proposals. I agree with him that we have a government in which we have
separating powers with respect to the ability and the fight to try to
prevent further acts of terrorism from occurring in this country.
All of us need to work together. But we need to work smart. Working
hard and working smart sometimes can be two different things. I hope we
will work smart working together to have accountability in Congress to
provide the flexibility while still retaining accountability so we can
create this new agency, get rid of these stovepipes, and have agencies
that are forward working, that will share information which will
protect this country from future acts of terrorism. All of us share
that goal.
I yield the floor.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Mr. President, I note that the Senator from North Dakota
gave a very troubling and compelling example of the fact that the FBI
is so far behind in translating critical messages and documents. I am
troubled by that, also.
Where we may differ is, I believe, that the authority given to the
national intelligence director by the bill will allow us to address
that problem. Now we will have one person in Government who is
accountable and responsible and who will be able to--unless the Byrd
amendment is agreed to--transfer the people and the funds necessary to
tackle that backlog. That can't happen because of a very cumbersome
process. I see our legislation and the authority it gives the new NID
to be critical in allowing us to address just those kinds of problems.
We know there is a shortage of linguists throughout the Federal
Government, but we also know there are thousands of linguists. Some of
them are in the FBI, some of them are in the CIA, and some are in
various other agencies. If we had a national intelligence director who
was able to marshal those resources, then we could get rid of those
backlogs. I think that would be very helpful.
I have other comments I want to make in response to the Senator's
comments on the Byrd amendment.
Mr. DORGAN. Mr. President, will the Senator yield for one point?
Ms. COLLINS. If I could complete my sentence, I would be happy to
yield briefly for a question.
The Senator from Missouri has been waiting for some time to speak on
the amendment that was just cleared on homeland security grants. I will
yield briefly for a question.
Mr. DORGAN. I thank the Senator.
I only make the point that I don't think any of us disagree with the
point of having sufficient flexibility so the agencies will make
decisions to hire people to translate the tapes. Somebody must be
accountable today--not just tomorrow--for 120,000 pages not being
translated.
My point is, whether Senator Byrd or myself or any other Senator, we
all want sufficient resources to be devoted to the task at hand--
especially the urgent task at hand. With or without the kind of
flexibility you provide in this bill, I believe the evidence is that in
every circumstance in the last 3 years when the administration asked
for flexibility in moving funding, it has been granted by this
Congress, and it has done so immediately. I know that because I am an
appropriator and I see what comes to us. We move it immediately.
I wanted to make the point that I don't think there is any
disagreement at all about our interest in seeing critical issues
funded. We all want that to happen.
Ms. COLLINS. Mr. President, reclaiming my right to the floor, let us
look at what happens under the current system when funds are
reprogrammed. I would like to quote from the acting CIA Director John
McLaughlin testimony that he gave before the Senate Armed Services
Committee which parallels conversations that Senator Lieberman and I
had with him privately. It goes directly to this point of the need for
a more agile system.
Yes, the DCI has some reprogramming authority now. But let us look at
the way it works. Listen to what John McLaughlin says:
Typically you require the approval of the agency that is
surrendering the funds. Then you require the approval of the
department head who overseas the agency. Usually that is the
Secretary of Defense. Then you require the approval of OMB.
Then you require the approval of six congressional
committees. Typically that takes 5 months.
I want to repeat that. That reprogramming takes 5 months, on average.
John McLaughlin goes on to say:
So you can see that is not very agile to meet the needs of
today. My view is that the national intelligence director
ought to have the authority to move those funds.
We are facing an agile enemy, and what are we putting up against him?
A system where it takes 5 months to move funds from one category to
another.
I wish to address the issue of the accounts under the bill, which
both Senator Byrd and Senator Dorgan have addressed. These are simply
accounts that allow the NID to receive the appropriations. That is all
they are. The accounts set up under our bill do not give the NID any
additional authority. These are just regular Treasury accounts.
Why are they needed? They are needed because the money now is
funneled through the Department of Defense.
If you are going to allow the NID to receive the appropriations from
Congress from a mechanics standpoint, you have to have a mechanism
whereby the Treasury Department sets up the accounts for him. That is
all this is. In fact, I refer to page 24, line 12, of our legislation.
These accounts are set up explicitly ``for the purpose of carrying out
the responsibilities and authorities of the director under this act.''
The accounts themselves do not allow or authorize the NID to transfer
funds. There is transfer authority. It is on page 27 of the bill. These
authorities include a number of important safeguards.
First of all, transfers will still require congressional approval
just as they do now. We are not changing the balance of power between
this new position and the Congress. The transfers are subject to the
applicable ceilings established in law to the appropriation ceilings.
The transfers cannot be made unilaterally by the NID. They require the
approval of the Director of Management and Budget.
Finally, the NID must consult with the affected agency heads, but no
longer will he have to get the approval of the agency head and then the
department head and then Office of Management and Budget and then
Congress--that whole intricate system. We would allow consultation.
Then the NID can move the money with the approval of OMB and subject to
the same congressional review we have now. This is not a radical new
concept. It is an essential authority. We cannot afford to have a
process that takes 5 months for money to be moved from one account to
another.
The PRESIDING OFFICER. The Senator from Missouri.
Amendment No. 3705
Mr. TALENT. Mr. President, I thank the Senator from Maine for her
comments. I am going to make a couple of comments about an amendment
the Senate adopted an hour or two ago that I am strongly supportive of
and was pleased to cosponsor. I want a little more on the record about
what that amendment does.
As I travel around Missouri and talk with first responders about
homeland security, there is a consistent theme I hear. This goes back
several years ago when I was not even in the Senate and was just
campaigning. Over and over again, what I heard from fire chiefs, local
public health authorities, police chiefs, and sheriffs was this: Look,
we thank the Federal Government for sending money to help be prepared,
but do not tell us in a detailed way what to do with the money.
I had one fire chief from Missouri say his big fear is: They will
send the money and I will need the dollars to buy a better
communication system so
[[Page S10316]]
that in the event there is a terrorist-related disaster, I can find out
where my guys and gals are and tell them where to go. My big fear is
they will tell me I have to buy HAZMAT suits when I don't need HAZMAT
suits, because we already have in Missouri a tremendous HAZMAT regional
team that I would call if we ever had that problem.
This concern resonated with me. I said to myself, that is what the
Federal Government will do. It will send them the money but then tell
them what to do with it. Accountability is fine. It is fine maybe to
have certain standards in certain areas that are off limits--maybe you
do not want them to spend the money on routine personnel costs. But I
am a big believer that our first responders are best prepared to handle
disaster-related emergencies when they prepare themselves better just
to handle emergencies. The kind of problems or threats associated with
terrorist disasters are 80 percent the same as with any other
disaster--fire, people being crushed or trapped in buildings. The
better they are prepared to do their job on a day-to-day basis, the
better they will be prepared to protect, help, cure, or get us loose
from some terrorist-related disaster.
After I came to the Senate, I found out in large part we have,
unfortunately, done exactly what they were afraid we were going to do,
which is send them the money with so many strings attached that they do
not have the flexibility to use it the way they want.
We had an example of this in Missouri last year when Senator Bond and
I were contacted by the local Jewish community in St. Louis which was
hosting the Maccabi Games--like the international youth Olympics for
Jewish youth from around the world. Those games drew over 5,000 young
Jewish people from around the world. The Maccabi Games were an obvious
target for a terrorist threat--that is just a matter of common sense--
and there were a lot of extra costs associated with protecting the
games.
The local hosts wanted some of those costs reimbursed. We certainly
understand that. We tried to get money that had already been assigned
to the State of Missouri reprogrammed or changed so they could use it
for this obviously necessary purpose, and we could not. The statute was
too closed to let the money be reprogrammed, despite the best efforts
of Senator Bond and I.
It turned out that the Maccabi Games went on without incident, and we
are all very grateful. But the problems remain for the discretion on
the part of the Secretary of Homeland Security and the Director of the
Office of State and Local Government Coordination to at least have the
authority to entertain a waiver application by States to reprogram
dollars where, at least, some unexpected need arises.
I joined with Senator Collins in cosponsoring legislation to that
effect. I offered a sense-of-the-Senate resolution on the Homeland
Security appropriation which did get adopted by the Senate and had a
colloquy with Senator Cochran at the time about the need to follow up
on this issue. I was very pleased to cosponsor with Senator Collins, an
amendment that, among other things, does create that kind of waiver
authority for the Secretary of Homeland Security and for the Director
to help out in instances such as that.
I congratulate the Senator from Maine for her interest. She has heard
the same things I have heard. She knows the need to do something about
it. I am very pleased that with the adoption of that amendment, we have
taken a step in that direction. It is not as far as we need to go, in
my judgment. We can trust our first responders more than we will trust
them even with this amendment becoming law--and I hope it does become
law--but it is a step in the right direction. I will keep working in
that direction. The people of Missouri and the people of the country
will be better off as we make progress toward that end.
To reiterate, as I have traveled across the State of Missouri
discussing homeland security, nearly every police chief and every first
responder has told me the same thing: Don't tie our hands on how we are
going to use money you give us. Leave us some discretion on how to use
those funds. At the same time, the Department of Homeland Security
asserts it must tightly control how every dollar is spent. I appreciate
the need for accountability given the department's mission. I also
appreciate that in many instances our first responders know best how to
allocate these funds and that sometimes very legitimate concerns fall
outside the narrow spending guidelines of the department.
For example, in St. Louis last year, our local Jewish community
hosted the Maccabi Games, an international Jewish Youth Olympics, which
drew over 5,000 Jewish youth from around the world. Given the security
environment, Missouri's Homeland Security Office threat assessment team
stressed the need for greater security but lacked the latitude to
reallocate even a modest sum from the monies awarded to the State.
Despite all of our efforts here, they were unable to free up dollars to
provide for the necessary security.
Thankfully, the event ended without incident, but it still
illustrates the need for discretion on the part of the Secretary and
the director of the Office for State and Local government Coordination
to approve waiver applications on the part of the State to reprogram
some of their Federal grant homeland money when some new kind of
security issue arises that was unforeseen when they originally applied
for those grants.
Last year, I engaged in a colloquy on this floor with Chairman
Cochran on this issue and have been working since arriving in the
Senate with Chairman Collins to craft language that would provide State
and local governments with flexibility in the reallocate a portion of
homeland security grant funds based upon the changing threat
environment. Last week I successfully offered an amendment to the
Department of Homeland Security Appropriations bill that addressed this
issue.
I am pleased that Senator Collins has included in her amendment
language that we worked on together over the past year to provide the
discretionary authority needed by the State homeland security
officials.
Ms. COLLINS. I appreciate the leadership of the distinguished Senator
from Missouri to allow greater flexibility for State and local
officials in spending homeland security grant funds. I agree that
greater flexibility is needed to use homeland security funds to meet
special security needs. I am pleased to include in my amendment
language Senator Talent and I have crafted over the past 18-months
which last week he made the subject of a sense of the senate resolution
granting authority to the Director of the Office for Domestic
Preparedness to approve the reallocation of funds available to State
homeland security officials in unspent homeland security funds. I am
confident that this language would allow State and local officials to
reallocate homeland security grant funds to provide greater safety for
special security events like the Maccabi Games. Senator Talent has been
tireless in his efforts to pass his measure and achieve this
flexibility to help local first responders and I am proud that we could
include it in this amendment. I look forward to continuing to work with
the Senator from Missouri on this important issue.
Mr. TALENT. Mr. President, I will make a comment or two on the bill
as a whole. I will not hold the Senate up a long time. We are trying to
get this bill done, and I fully support that.
There is an area of the bill I would like to register, for the
record, concern on the part of this Senator. Probably the bill's
managers will recognize the legitimacy of that concern.
First, I want to say how much I have appreciated the work by the
Senator from Maine and the Senator from Connecticut on this bill. I
have enjoyed this debate and enjoyed the part that I played in it--not
that it has been significant but just attending the briefings, visiting
with the Senators on and off the Senate floor. In my work on the Armed
Services Committee, we have had hearings on this subject.
This has been handled in the way the American people like to see the
Senate handle things. It has been bipartisan in the best sense of that
word--not that we have tried to conceal legitimate differences of
opinion that sometimes separate the two parties, but because we have
understood that the right way to deal with those differences is to
reconcile them where we can, to have
[[Page S10317]]
them out without being personal or political about it, and understand
we are all working for the good of the American people and the security
of the country.
We can all agree, having been here now through almost this entire
Congress, that unfortunately, the Senate does not always operate in
that ideal fashion. I believe it has operated in that way on this bill,
and the leadership of the two Senators is the reason. It is clear from
listening to this debate and watching it on TV in my office that both
of these Senators have done their due diligence. They know their
subject. There has not been a point raised that they were unfamiliar
with. That has been very impressive to me and has led me to decide that
I am going to give them the benefit of the doubt on amendments that are
offered because clearly they have studied this. It is not a case where
they are refusing to consider any concern or looking down on a Senator
who is raising it.
It is important for the public to know that personal factors like
that can play a part in legislation. The trust and regard in which
these two Senators are held by the rest of the body is making a
difference.
I also agree with them that it is time to do something; that 3 years
is long enough. Some people say 40 years, because there have been a
number of recommendations for changing how we do intelligence over the
decades. I think it is time to get something done. I agree with that.
I also like the creation of a national intelligence director. I do
wish we could have come up with a different name than NID. Imagine how
often that name is going to be used and what it may come to represent
in Washington, but it may be too late to do anything about that.
For some reason, I do not think people have aired on the floor--and I
want to; it is a practical reason--there are times in our history when
foreign policy and national defense are bigger issues than at other
times. The American people in the United States of America are a people
who are concerned with their day-to-day lives. That is as it should be.
We would rather, if we could, avoid having to engage extensively in
these tremendous efforts abroad and in all the foreign policy
discussions and reconstructions that go with that.
In our elections, sometimes we elect Presidents in a context where
foreign policy does not seem to be all that important. I think it is
another way of saying some Presidents are more interested than other
Presidents in intelligence on a day-to-day basis. I do not say that to
be critical. I do not think there has been a President who has ever
served in that high office who has not cared about the security of the
country. But I think people here understand what I mean.
Now that we are fighting this terrorist war, we all read stories
about intelligence. We know how important it is. We are all following
it on a day-to-day basis. Everybody wants to serve on the Intelligence
Committee or the Foreign Affairs Committee, and that is fine. But in
other times, attention and interest wanes.
I think by having a national intelligence director, what we will help
ensure is that even in those times when interest is waning on the part
of other high-level political actors, maybe even the President, we will
have somebody in Washington whose job it is to look at all this in a
comprehensive way, and try to make sure the agencies under him or her
are working together on behalf of the interests of the American people,
in a way rather like we have done with the Federal Reserve, where we
have created an agency and we have vested a lot of authority in a
Chairman of the Federal Reserve. We know that person is watching
monetary policy and other policy.
Over time, what has happened is Presidents of both parties and under
all circumstances realize that appointments to that kind of job are
very highly scrutinized, and you put in people who have prestige and
gravitas and the regard of people of both parties and the regard of the
country.
It is my hope that will happen with the national intelligence
director. Presidents, whether foreign policy is the No. 1 concern for
them or not, will know this is an important appointment and they need
to put somebody in this position, from administration to
administration, who has the regard of everybody in the country, who
watches and knows about foreign policy and about intelligence. That
will help create a stability over time and a continuity in our
intelligence policy.
Now, I am not downgrading the concerns people have expressed. There
is always a tension in this kind of thing. You cannot create and set up
a higher authority such as this without increasing the risk that if you
get a person in there who is very autocratic, it may tend to create a
certain kind of group-think among the agencies even more than we now
have, that people could be acting in way that is designed to please
only this national intelligence director rather than trying to have
their own opinions regarding intelligence. But there are safeguards in
the bill designed to deal with that. I certainly have had some concerns
along those lines, but I am going to exercise the benefit of the doubt
in favor of supporting the creation of a national intelligence
director.
There is an area, though--and the Senators have addressed it; I think
perhaps they could again in response to my remarks--I am concerned
about the flow of intelligence to the troops in the field. Here is the
kind of classic situation I am concerned about. We have, of course, an
extensive satellite system in place. We get intelligence all the time
from those satellites. Particularly since the first Gulf War, the
Department of Defense has become pretty good at getting that
intelligence off the set satellites and getting it out to the field in
real time. That means virtually instantaneously, so that it can be used
by our special operations troops, by commanders in the field to check
and select targets. This kind of mapping and satellite intelligence can
be used even to move troops around during some kind of an engagement.
It works pretty well. I know that for a fact.
I think one of the reasons it does work is these agencies--the
National Reconnaissance Office, the National Geospatial-Intelligence
Agency, the National Security Agency--are in the Department of Defense
and the customers they are serving with that intelligence are in the
Department of Defense. It is very reasonable to believe that if the
provider of the intelligence and the customer of the intelligence are
in the same Department, the same bureaucratic structure, they will
share intelligence better.
If that were not true, then why are we doing this bill? Because the
whole point of the bill is to get all these intelligence agencies under
some kind of joint authority so they will share better. In most cases,
I think it is very clear how the bill is doing that, that the bill is
breaking down existing bureaucratic barriers.
But I do think we all ought to be honest enough to admit with respect
to this particular kind of sharing, we are setting up a bureaucratic
barrier that does not exist now, because we are going to pull those
agencies out of the control of the Department of Defense and put them
under the national intelligence director, at least partially. So there
is at least a risk we will put up a stovepipe in the name of taking
down stovepipes, that we will put up a stovepipe in an area where the
sharing is working. It would be ironic if one of the effects of the
bill were to interrupt the sharing of the intelligence in the one area
where we have confidence now that it is being shared.
Now, I feel a lot better about this concern than I did when I first
heard about this bill. I know the Senator from Maine and the Senator
from Connecticut have put measures in the bill designed to ensure that
flow of intelligence continues. I am glad they have done that. I am
glad they recognized the importance of this concern, because it is
going to grow as time goes on.
Let me give you an example. We are trying, on the Armed Services
Committee--and both Senators serve on that Committee, so they know this
as well as I--to make all the various what we call weapons platforms
for the Army network-centric. What this means is they will all be
networked in, so that we hope in the near future intelligence from a
satellite will not even have to go through a middleman at the NGA or
the NSA, it will go directly
[[Page S10318]]
from the satellite down to the commander in the field. It is very
important that we procure weapons systems and platforms and
communications systems and signal intelligence systems that are all
linked together.
This bill, for example, gives procurement authority to the NID over
the satellite end of those systems. So we are going to have the NID
procuring the satellites, the platforms that are getting the
intelligence. We are going to have the Department of Defense procuring
its end of the platform that is going to be receiving the intelligence,
and there is a danger we will end up with a stovepipe we do not want.
I am not saying this is a reason to oppose the bill. I am not saying
it is a reason to change the bill. I am saying it is a concern. I guess
what I would say to my friends from Connecticut and Maine is, if they
could give us their assurance that not only in the passage of the bill
but in the implementation of it, and in the months and years after
that, they will remain conscious of these concerns and try to ensure a
free flow of intelligence from these various intelligence organizations
out to the troops in the field, even though they will no longer be in
the same bureaucratic organizations.
Maybe the Senator from Maine would yield for a question from me or
have a brief colloquy, if I can ask consent to do that.
I have been airing the point you and I have talked about privately,
and you have addressed on the floor as well, about the importance of
making sure that tactical military intelligence continues to flow from
the NGA and the NRO and the others out to troops in the field.
I was telling the Presiding Officer you all have done a lot to allay
my concern in that regard. What I was hopeful of, and I wanted to put
on the record, is to get assurance from you and the Senator from
Connecticut that in implementing this bill you will continue to oversee
this aspect of it and try to make certain the NID understands the
importance of acting jointly with the DOD in ensuring that this
intelligence continues to flow. Because no matter what protocols you
put in the bill, this is a fruitful area for oversight to make certain
that this intelligence is not interrupted. Would the Senator from Maine
care to comment?
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Mr. President, I am pleased to give the assurances the
Senator from Missouri is seeking. He and I, as he mentioned, along with
my friend from Connecticut, serve on the Armed Services Committee and
have a deep commitment to making sure that our men and women in the
military receive the real-time, actionable intelligence they need to be
effective. Nothing in this bill would in any way hinder the flow of
intelligence from NSA to the combatant commanders to the troops on the
ground in Iraq and Afghanistan--nothing.
In fact, as the Senator from Missouri knows, we opposed an amendment
last week which would have undermined the relationship between those
defense agencies and the Secretary of Defense by essentially moving
them out of the Pentagon--not physically but from an authority
standpoint--and having them only report to the national intelligence
director. We recognized that we need a dual reporting, that these
agencies are providing critical intelligence to our troops and to
Pentagon officials as well as to the rest of the intelligence
community.
I agree with the Senator that vigilant oversight is going to be
necessary to make sure this is implemented in the manner we intend. But
I must say, given the clear language of the bill, given the fact that
tactical intelligence assets are completely exempted from the NID's
control, and given the fact that any NID is going to be committed to
providing excellent intelligence to our troops, I can't imagine the
bill having the negative impact that he might feel.
Mr. TALENT. I have been much reassured by the debate, by your
comments, and by my further thinking on the subject. I do think it is
unlikely that any national intelligence director would not be sensitive
to this. And given the congressional concern that has been expressed,
if he or she were insensitive, we certainly could do something about
it.
To give an example--and I shared this with the Senate--on
procurement, you know the extent to which we are trying to procure
network-centric type platforms for the Army. And since now the various
satellite agencies would be under the procurement authority of the NID,
it would be important early in this process to get some kind of
memorandum of understanding or protocol so there would be a joint type
procurement process to make certain that what the Army was doing to get
network-centric receivers was compatible with whatever the NID was
procuring for satellite.
I expect there will be a number of instances in practice where it
will be useful for all of us to be aware on a continuing basis of this
concern and trying to make certain that they work together, as we did
with Goldwater-Nichols. There is an example of a congressional
enactment and oversight that has increased the joint process.
I don't offer these remarks in hostility to the bill but to put on
the record again the importance of this, to make clear your intent and
the intent of the Senator from Connecticut in this regard. I would be
happy to have the Senator comment further.
Ms. COLLINS. Let me indicate to the Senator from Missouri that I very
much appreciate his concern in this area. There is no greater advocate
for our troops than he. I join with him in an assurance that we are
going to watch this very carefully. The language of the bill is very
tightly and carefully drafted. The commitment to our troops is there.
There is nothing in this bill that would in any way hinder military
operations, readiness, or the flow of real-time, actionable
intelligence to our troops. That is essential. The Senator has my
commitment to continue to monitor this very closely.
Mr. TALENT. I am grateful. I don't know if the Senator from
Connecticut wanted to say something now or later. I am not inviting you
to admit a concern that you don't think is in the language of the bill,
that would suggest a weakness in the bill that you don't believe is
there. It is just that any change in structure like this has the
potential, if we are not careful, to interrupt that flow. I am pleased
about your reassurances. I won't make you say it for the 15th time. I
will just reclaim my time and close briefly. It has been a pleasure to
participate in this debate and to watch how my friends from Connecticut
and Maine have handled it. I do think it is time to do something. I had
concerns. I had concerns about the speed with which we were acting. I
think we can all concede the honesty of those concerns. I do believe,
however, for the reasons I have indicated, that we ought to move
forward. I think we can, while guarding against the dangers that are
present whenever you have a major change like this. There is a lot
about our intelligence system that is working. We do want to be careful
that in trying to fix the parts that aren't, we don't cause problems
for the parts that are working.
The Senators from Maine and Connecticut have done a good job in
guarding against that. I congratulate them on their work. Again, I am
pleased the Senate has adopted an amendment which finally takes a first
step toward allowing our first responders, our State and local
officials on whom we depend, to have discretion in where they are going
to use these homeland security grants the country is giving them.
I yield the floor.
The PRESIDING OFFICER (Mrs. Dole). The Senator from Connecticut.
Mr. LIEBERMAN. Madam President, before the Senator from Missouri
leaves the floor, I thank him for his statement. I thank him for his
kind words about Senator Collins and me, which she certainly deserves
and I am glad to be along with her on that ride.
I thank him for the specific question and assure the Senator on my
behalf, one, that Senator Collins and our committee were focused
throughout the deliberations on making sure this substantial
reorganization of our intelligence assets not in any way diminish the
availability of intelligence to the warfighter. In fact, in the best of
all situations, we believe the recommendations that we have made will
improve intelligence to the warfighter.
By way of reassurance, I want to quote from GEN Michael Hayden,
Director of the National Security Agency, who said in testimony before
the other body:
[[Page S10319]]
An empowered national intelligence director who would
direct authority over the national agencies should not be
viewed as diminishing our ability or willingness to fulfill
our responsibilities as combat support agencies.
He was speaking on behalf of the three.
It was quite illuminating, in talking to General Hayden and others.
They are in direct daily contact, particularly with the combatant
commanders. They have people out in the field right now with those
combatant commanders, particularly in the most active areas of the
world, such as the central command, which includes Iraq and Pakistan.
After having described that close integration of national intelligence
assets with the warfighters, General Hayden concluded:
It is inconceivable to me that any future leader of the
National Security Agency could or would ever act any
differently.
GEN James Clapper, head of the NGA, National Geospatial Agency,
expressed exactly the same sentiments to us.
I want to reassure the Senator from Missouri, more to the point of
his question, that to the extent we are able--and I am sure if we are
not, the Armed Services Committee will--we will definitely keep a close
eye as this new system is implemented to make sure our intention, which
is that this reform improves intelligence for our warfighters, in fact
is being realized.
Mr. TALENT. I can see how that would happen, and we should not accept
something that is working fairly well if we think we can make it
better. It may be possible by moving these agencies into the NID for
budgetary purposes that they will get a higher priority than they get
now with the DOD which does not see itself primarily as an intelligence
department. I can see potential pluses to this. I just thought it was
very important that the record show the concern about this is not only
deep with you two as the managers but also all throughout the Senate
and the Congress, that there are many of us who are familiar with this
and who know this current system is working, certainly working much
better than it used to.
I hope whoever is going to be the national intelligence director--I
certainly will bring this up in the confirmation process, and I hope
you two do as well--knows we want his cooperation and will continue to
want this to be a priority.
I thank the Senator for his comments.
I yield back my time.
Ms. COLLINS. Madam President, I am very pleased to see the Senator
from Minnesota is on the floor. Senator Coleman has been one of the
most diligent members of the Governmental Affairs Committee on this
issue. He came to virtually every hearing we had throughout the August
recess, starting on the very first hearing on July 30. He is a
cosponsor of the bill. He helped to write many of its provisions. I am
very grateful for his leadership and support, and I look forward to
hearing his comments.
The PRESIDING OFFICER. The Senator from Minnesota is recognized.
Mr. COLEMAN. Madam President, I express my deep gratitude for the
kind words of the Senator from Maine and my gratitude for the
incredible work she and the Senator from Connecticut did in pulling us
together in doing a series of hearings--I believe eight--with countless
hours of testimony, a very thorough review of the recommendations of
the 9/11 Commission, and then an analysis of how do we take those
recommendations and somehow move forward in a way that improves,
increases the level of safety and security in this great country of
ours. That was the challenge and it certainly is a challenge.
I think the chairman has been challenged with drafting a bill that
represents a kind of balance here between ambitious reform of our
intelligence services and the continuity of the existing intelligence
assets we rely upon to keep our country safe. There was discussion
during the hearings about the nature of change and some of the
challenges of concern--a concern that if we are to make changes, is
that going to make us more vulnerable during that period of time.
There was great thought that went into the balance we see in this
bill: The balance between the creation of a powerful national
intelligence director, on the one hand, and this concept of
departmental autonomy on the other; and the right balance between
centralization of the information sharing and the balance of civil
liberties we cherish as Americans. How do you provide those protections
without undermining the ability to do the hard work that has to be done
in intelligence, and that keeps up the morale of those on the front
lines every day making us safer--folks who, in many ways, are simply
unknown; we will never know who they are. At one of our hearings, which
was classified, even the name of the witness was classified. I sat
there as a relatively new Member of the Senate listening to the
incredible work that is going on day to day to keep our country safe. I
was struck by that, and I am deeply committed to making sure as we move
forward in reform that we keep the morale up and the appreciation up,
that we strike the right kind of balance.
After hours of hearings and countless study, I believe the bill
drafted by the chair and ranking member represents the kind of balance
we need. Today and tomorrow, we are going to vote on a number of
amendments that would unravel this carefully constructed balance by
weakening the national intelligence director. I urge my colleagues to
oppose any such efforts to undermine this balance.
I agree with the sponsors of these amendments that it is vitally
important soldiers in combat get timely, accurate information that is
relevant to their immediate needs. I also agree the military chain of
command needs to be respected. However, I disagree on their
interpretation of how the Collins-Lieberman bill would affect the armed
services.
Last week, we debated and voted on an amendment that would have
effectively removed several intelligence agencies from the Defense
Department. We defeated the amendment because a strong majority of the
body thought, as I do, that the Department of Defense needs to retain
its combat support relationship with such agencies as the National
Security Agency and National Reconnaissance Office. I think that vote
reflects the importance we attach to the Department's role in
intelligence.
The central finding of the 9/11 Commission was that prior to 2001,
the safety of Americans was substantially weakened by the absence of a
strong entity to make sure that the use of intelligence assets
reflected national priorities and that the intelligence gathered was
shared with officials who needed it, even if those officials were
located in different agencies. I note that the Chair, on a number of
occasions, talked about a George Tenet memo in 1998, where he declared
war on al-Qaida and nobody knew about it. There were agencies
throughout Government that never got this declaration of war from the
head of the CIA. As the Commission put it, no one was in charge.
As I say that, I do want to say, having listened to the testimony,
today we have a new level of cooperation and collaboration between
those involved in intelligence gathering. And because of that new level
of cooperation and collaboration, we are moving forward and this
country is safer today than it was on 9/11. But the reality of the case
is that with no one in charge, institutional silos arose to prevent
important pieces of information from being collected into an overall
threat assessment that might have alerted officials to the danger we
faced.
So it is clear to me, and as recommended in this bill, we need a
strong national intelligence director, strong enough to enforce common
policies throughout the intelligence community whenever and wherever
intelligence collected by one agency might be useful to another. We do
not need a mere coordinator. That is what we have now; we have a
coordinator. We need someone who can focus resources and attention on
the most vital threats, national priorities. That person can only
succeed if we give him or her the strong powers they need over the
budget and personnel.
I have heard members point out that the 9/11 Commission did not point
to any institutional policy that prevented the sharing of information.
The argument is, if we can do all this today, why do we have to make
institutional
[[Page S10320]]
change? They argue the problem is due to individuals who failed to
perform their jobs by failing to convey information they were supposed
to share. It is true that the commission's report discusses several
specific instances of this type of bureaucratic behavior, and in the
end things that should have been done were not done, none of which seem
to have led to disciplinary action. Nevertheless, there were policies
such as the wall between domestic and foreign intelligence that
inhibited the full sharing of information.
But even that is not quite the full story. It is my belief such
insular behavior will always exist, unless and until we have a strong
national intelligence director who can effectively enforce common
information policies. That is what the Collins-Lieberman bill creates.
That is why keeping these powers is so important.
In the committee markup, the Senator from Michigan pointed out
instances where language could have been made clearer. I agree with him
that clearer lines of authority are important. But I fear that the
amendments being offered today are not mere clarifications but, rather,
represent a fundamental tip in the balance and will result in erosion
of the power of the NID.
I believe the Department of Defense will have a strong role in the
new intelligence constructs that the Collins-Lieberman bill creates.
The DOD will retain full authority over tactical intelligence. It will
have a seat at both the National Counterterrorism Center and the Joint
Intelligence Community Council to argue for institutional interests and
ensure that its needs are met.
The bill also leaves direct, day-to-day command of the Department of
Defense intelligence agencies with the DOD. Most of the staff of the
intelligence agencies will remain uniformed service men and women. The
Department will remain the intelligence community's largest consumer of
information. The Secretary of Defense will remain one of the most
senior members of the Cabinet, with close communication with the
President.
If we are going to create a NID with actual clout when it comes to
enforcing common intelligence standards, the NID must have the ability
to transfer funds and personnel within the intelligence community.
Witness after witness came before us and said: With budget authority,
there is power. Whoever controls the purse has power. We understand
that in this body. He or she must be able to move assets where they are
needed most and ensure full compliance with communitywide requirements.
The chairman of the 9/11 Commission has admonished Congress, saying,
``If you are not going to create a NID who has the powers of budget and
appointment, don't do it.'' These powers are necessary to ensure that
intelligence gathered by intelligence agencies reflects national
priorities and is shared among all parts of the Government that need
it.
The Collins-Lieberman bill gives the national intelligence director a
number of important powers. He is supposed to develop common policies
of personnel, budget practices, information networks, security
classifications, and communication systems. If we want him to succeed
in these tasks, we must also give him or her the powers to accomplish
them.
This body voted last week to retain day-to-day control of the Defense
intelligence services with the DOD, and I supported that sentiment. But
since the NID will not have direct day-to-day control, it is even more
important that he have the ability to transfer money and personnel.
We all know that bureaucracies have a natural tendency to resist
change. So the question is, Will the national intelligence director be
able to enforce his policies in the face of the inertia that normally
characterizes existing agencies? Not unless everybody knows he is in
charge of the resources and has the power to shift them according to
agency performance and his evaluation of needs.
The bill contains numerous provisions to ensure that this power is
used responsibly. We make it clear that only the national intelligence
director can make these transfers of resources and personnel. We also
retain Congress's authority to approve transfers before they occur.
That way, it will be clear who is responsible for them and who will
have to justify them. We create the joint intelligence community
council made up of the users of intelligence, including the Secretary
of Defense, to advise and evaluate the national intelligence director.
We require the NID to notify Congress, including the Committee on
Armed Services, whenever there are transfers of personnel to or from
the Department of Defense. In light of these protections, it is
extremely unlikely that the intelligence community will fail to support
our armed services. In fact, it is stronger than that. It simply is not
going to happen. We have set in place the kind of measures, the kind of
safeguards, the kind of oversight, the kind coordination that will
ensure the needs of the armed services are met. The intelligence needs
of the armed services will be met.
Another amendment would remove the section of the bill that would
disclose the total funding for intelligence. I must respectfully
disagree with those who believe this disclosure will harm our national
security.
Again, this was an issue in which we had very clear testimony before
the committee. By the way, after all, reliable estimates of this number
already appear in the trade press. Moreover, the 9/11 Commission
recommended going further. They wanted to disclose the totals for each
agency. But here we have a balance.
In our history as a nation, we have found the benefits of disclosure
usually outweigh the costs. What we have in the way of disclosure makes
policymakers accountable to their actions. But again, we have struck a
balance.
I note in his testimony before the committee last month, then-acting
CIA Director John McLaughlin agreed that declassification of the top
line figure would make sense. He testified:
It reinforces responsibility and accountability on those
receiving the money, because you can see whether it's going
up, down, or so forth. . . . It also does the same thing for
Congress. . . . I don't think declassifying the top
line would be a major security threat.
Given all this, it is difficult for me to believe that disclosure
would weaken our safety in any meaningful way. It would, however, lead
to more open debate about how much we need to spend to keep America
safe, and I think that is a good thing.
There are also proposals to exempt military personnel from the
national intelligence director's transfer, detail, and assignment
authority. I can understand the desire to maintain the military chain
of command, but if we want the national intelligence director to
develop and enforce common intelligence policies even in the face of
agency silos, then he or she is going to need to draft his or her own
players and make sure they are playing on the same team. When the
national intelligence director transfers a soldier out of an
intelligence agency, that soldier returns to the Armed Forces where he
or she will be, once again, safely in the chain of command. But as long
as they remain in the intelligence community, they are responsible for
meeting the needs of the entire community, not just the Department of
Defense, and that is why that individual must have the confidence of
the national intelligence director.
There is a second reason for keeping personnel authority in the
national intelligence director. We all agree on the creation of a
National Counter-ter-rorism Center--there has not been a lot of debate
over that--and intelligence centers that represent other national
priorities. We mean for these centers to contain the best people from
each agency. Assuming, for example, that the National Count-er-ter-
rorism Center consists of the best terrorism experts from each element
of the intelligence community, it makes sense for it to be the forum
for negotiating common policies and planning joint operations. But in
order to prevent each agency from creating its own counterterrorism
unit and sending the NCTC only junior workers or workers sitting out
their final years until retirement, the national intelligence director
must have the power to bring the best and the brightest to the National
Counter-ter-rorism Center.
I note that the Chair talked about her visit to the current TTIC, the
Terrorist Threat Integration Center, the forerunner of the NCTC. She
noticed
[[Page S10321]]
how young some of the personnel there were. At this stage in time, it
is not seen as the best place to be, but with a strong national
intelligence director and a clear National Counterterrorism Center, we
want the best and the brightest, and the national intelligence director
should have the right to bring those people to the table to work with
him or her.
Finally, we will vote on amendments that would take one agency or
another out of the definition of ``national intelligence program'' and
thereby move their budgets away from the national intelligence
director's authority and back under the Defense Secretary's authority.
This might be wise if we make the Secretary of Defense responsible for
enforcing common intelligence policies and meeting the intelligence
needs of the entire Government, but in that case we would not need a
national intelligence director. In that case, we ought to also transfer
the CIA into Defense.
On the other hand, if we want a strong coordinator of intelligence
and we do not want that person to be the Secretary of Defense, then the
national intelligence director must have the budget power over all
parts of the intelligence community that service common needs. It
simply would not make sense to break agencies, such as the NSA or NRO,
up into pieces depending on whether this program or that fell into the
national intelligence program. They should either be part of a
coordinated approach to intelligence or they should be totally
separate. I submit they are too important not to be brought into the
national intelligence policy.
I note that even under the Collins-Lieberman bill, these agencies
would remain under the day-to-day control of the Department of Defense.
Most of their personnel will still consist of uniformed military
officers. The relevant congressional committees will remain actively
involved in ensuring the needs of the military are met, and the
Secretary of Defense will remain a senior Cabinet member with a direct
line to the President. With all this, it is difficult for me to believe
that the intelligence our combat forces receive will diminish in any
material way. It seems more probable that through better coordination
and sharing, the Armed Forces will have access to better intelligence
under the Collins-Lieberman bill than they would have in a watered-down
version, and I think that is the key here.
In this post-9/11 world in which we live, where we understand the
nature of the importance of intelligence, we must understand the
importance of breaking down the silos that in the past prohibited folks
from working together. It is clear we all will benefit. The Department
of Defense benefits and the intelligence agencies benefit, but most
importantly, the people of this great country benefit. When we have and
will have a strong national intelligence director, a clear sense of
somebody in charge with accountability and credibility, with the
support and confidence of the President, we will all be able to sleep
easier at night.
I urge my colleagues to resist the natural hesitation in the face of
major change. Everybody likes change until it happens to them. The
events of 9/11 changed the world, and we must change our mindsets in
response. I believe the Collins-Lieberman bill represents the right
balance and will make America safe.
I urge my colleagues to reject those amendments that would weaken the
balance, that would weaken the strength of the national intelligence
director.
Let's move America forward. Let's make the change. Let's support this
bill.
Madam President, I yield the floor.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Madam President, I thank the Senator from Minnesota for
his comments. As I indicated, he has been a key member in drafting this
bill. I very much appreciate his many contributions and support.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. LIEBERMAN. Madam President, I join in thanking the Senator from
Minnesota. Senator Coleman really hung in there with us and did the
hard work in July, August, and September, both in attending the
hearings and in helping to draft a bill over a 2-day markup.
His statement today means a lot to us personally, but I hope and
believe it will mean a lot to the other Members of the Senate because
it is a strong explanation of why this bill is urgently necessary.
People asked earlier: What is the rush? People today asked: What is the
rush? The rush is, we were attacked on September 11. It is more than 3
years later, and Congress has not acted to adequately reorganize our
intelligence assets community, which the 9/11 Commission told us, and
everybody agrees, does not have a leader in charge.
Right now--what is his name?--Zawahiri, the second to bin Laden in
al-Qaida, last week put out another tape urging Islamist terrorists
around the world to attack America and Americans. So we are at war, and
we are not properly defending ourselves. That is the urgency.
The Senator from Minnesota has spoken very eloquently today, both for
the bill and against weakening amendments. That is really going to be
the test over the next couple of days as we move to cloture and
adoption of the bill. The bill is in good shape now. We have listened,
we have negotiated with some people, accepted some amendments that we
thought would not hurt the bill and would strengthen or clarify it. As
the Senator from Minnesota knows, a line has to be drawn and some of
these amendments take too much out of the bill and would hurt the
purpose, which is to better protect the American people.
So I thank the Senator very much for what he has said, and I yield
the floor.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. ROCKEFELLER. Madam President, I yield to the Senator from
Michigan.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendments Nos. 3825, 3809, as modified, and 3810
Mr. LEVIN. Madam President, I have a unanimous consent request, and I
think I am following a pattern, at least I hope so. If not, I will
withdraw. I ask unanimous consent that three amendments be called up
and then be set aside so that they are in advance of cloture. I ask
unanimous consent that amendment No. 3825 be called up and set aside. I
also send to the desk a modified version of amendment No. 3809, which
has been approved by the Democratic leader, which I understand the
process is the modification and then that modified amendment will be
set aside. Also, I ask unanimous consent that amendment No. 3810 be
called up and set aside.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
The amendments are as follows:
amendment no. 3825
(Purpose: To permit reviews of criminal records of applicants for
private security officer employment)
At the appropriate place, insert the following:
SEC. __. PRIVATE SECURITY OFFICER EMPLOYMENT AUTHORIZATION
ACT OF 2004.
(a) Short Title.--This section may be cited as the
``Private Security Officer Employment Authorization Act of
2004''.
(b) Findings.--Congress finds that--
(1) employment of private security officers in the United
States is growing rapidly;
(2) private security officers function as an adjunct to,
but not a replacement for, public law enforcement by, among
other things, helping to protect critical infrastructure,
including hospitals, manufacturing facilities, defense and
aerospace contractors, nuclear power plants, chemical
companies, oil and gas refineries, airports, communication
facilities and operations, and others;
(3) the 9-11 Commission Report says that ``Private sector
preparedness is not a luxury; it is a cost of doing business
in the post-9/11 world. It is ignored at a tremendous
potential cost in lives, money, and national security'' and
endorsed adoption of the American National Standards
Institute's standard for private preparedness;
(4) part of improving private sector preparedness is
mitigating the risks of terrorist attack on critical
infrastructure by ensuring that private security officers who
protect those facilities are properly screened to determine
their suitability;
(5) the American public deserves the employment of
qualified, well-trained private security personnel as an
adjunct to sworn law enforcement officers; and
(6) private security officers and applicants for private
security officer positions should be thoroughly screened and
trained.
(c) Definitions.--In this section:
[[Page S10322]]
(1) Employee.--The term ``employee'' includes both a
current employee and an applicant for employment as a private
security officer.
(2) Authorized employer.--The term ``authorized employer''
means any person that--
(A) employs private security officers; and
(B) is authorized by regulations promulgated by the
Attorney General to request a criminal history record
information search of an employee through a State
identification bureau pursuant to this section.
(3) Private security officer.-- The term ``private security
officer''--
(A) means an individual other than an employee of a
Federal, State, or local government, whose primary duty is to
perform security services, full- or part-time, for
consideration, whether armed or unarmed and in uniform or
plain clothes (except for services excluded from coverage
under this section if the Attorney General determines by
regulation that such exclusion would serve the public
interest); but
(B) does not include--
(i) employees whose duties are primarily internal audit or
credit functions;
(ii) employees of electronic security system companies
acting as technicians or monitors; or
(iii) employees whose duties primarily involve the secure
movement of prisoners.
(4) Security services.--The term ``security services''
means acts to protect people or property as defined by
regulations promulgated by the Attorney General.
(5) State identification bureau.--The term ``State
identification bureau'' means the State entity designated by
the Attorney General for the submission and receipt of
criminal history record information.
(d) Criminal History Record Information Search.--
(1) In general.--
(A) Submission of fingerprints.--An authorized employer may
submit to the State identification bureau of a participating
State, fingerprints or other means of positive
identification, as determined by the Attorney General, of an
employee of such employer for purposes of a criminal history
record information search pursuant to this section.
(B) Employee rights.--
(i) Permission.--An authorized employer shall obtain
written consent from an employee to submit to the State
identification bureau of a participating State the request to
search the criminal history record information of the
employee under this section.
(ii) Access.--An authorized employer shall provide to the
employee confidential access to any information relating to
the employee received by the authorized employer pursuant to
this section.
(C) Providing information to the state identification
bureau.--Upon receipt of a request for a criminal history
record information search from an authorized employer
pursuant to this section, submitted through the State
identification bureau of a participating State, the Attorney
General shall--
(i) search the appropriate records of the Criminal Justice
Information Services Division of the Federal Bureau of
Investigation; and
(ii) promptly provide any resulting identification and
criminal history record information to the submitting State
identification bureau requesting the information.
(D) Use of information.--
(i) In general.--Upon receipt of the criminal history
record information from the Attorney General by the State
identification bureau, the information shall be used only as
provided in clause (ii).
(ii) Terms.--In the case of--
(I) a participating State that has no State standards for
qualification to be a private security officer, the State
shall notify an authorized employer as to the fact of whether
an employee has been--
(aa) convicted of a felony, an offense involving dishonesty
or a false statement if the conviction occurred during the
previous 10 years, or an offense involving the use or
attempted use of physical force against the person of another
if the conviction occurred during the previous 10 years; or
(bb) charged with a criminal felony for which there has
been no resolution during the preceding 365 days; or
(II) a participating State that has State standards for
qualification to be a private security officer, the State
shall use the information received pursuant to this section
in applying the State standards and shall only notify the
employer of the results of the application of the State
standards.
(E) Frequency of requests.--An authorized employer may
request a criminal history record information search for an
employee only once every 12 months of continuous employment
by that employee unless the authorized employer has good
cause to submit additional requests.
(2) Regulations.--Not later than 180 days after the date of
enactment of this Act, the Attorney General shall issue such
final or interim final regulations as may be necessary to
carry out this section, including--
(A) measures relating to the security, confidentiality,
accuracy, use, submission, dissemination, destruction of
information and audits, and recordkeeping;
(B) standards for qualification as an authorized employer;
and
(C) the imposition of reasonable fees necessary for
conducting the background checks.
(3) Criminal penalties for use of information.--Whoever
knowingly and intentionally uses any information obtained
pursuant to this section other than for the purpose of
determining the suitability of an individual for employment
as a private security officer shall be fined under title 18,
United States Code, or imprisoned for not more than 2 years,
or both.
(4) User fees.--
(A) In general.--The Director of the Federal Bureau of
Investigation may--
(i) collect fees to process background checks provided for
by this section; and
(ii) establish such fees at a level to include an
additional amount to defray expenses for the automation of
fingerprint identification and criminal justice information
services and associated costs.
(B) Limitations.--Any fee collected under this subsection--
(i) shall, consistent with Public Law 101-515 and Public
Law 104-99, be credited to the appropriation to be used for
salaries and other expenses incurred through providing the
services described in such Public Laws and in subparagraph
(A);
(ii) shall be available for expenditure only to pay the
costs of such activities and services; and
(iii) shall remain available until expended.
(C) State costs.--Nothing in this section shall be
construed as restricting the right of a State to assess a
reasonable fee on an authorized employer for the costs to the
State of administering this section.
(5) State opt out.--A State may decline to participate in
the background check system authorized by this section by
enacting a law or issuing an order by the Governor (if
consistent with State law) providing that the State is
declining to participate pursuant to this paragraph.
amendment no. 3809, as modified
On page 28, between lines 19 and 20, insert the following:
(D) the personnel involved are not military personnel and
the funds were not appropriated to military personnel
appropriations, except that the Director may make a transfer
of such personnel or funds if the Secretary of Defense does
not object to such transfer; and
(E) nothing in section 143(i) or 144(f) shall be construed
to authorize the National Intelligence Director to specify,
or require the head of a department, agency, or element of
the United States Government to approve a request for, the
transfer, assignment, or detail of military personnel, except
that the Director may take such action with regard to
military personnel if the Secretary of Defense does not
object to such action.
amendment no. 3810
(Purpose: To clarify the definition of National Intelligence Program)
On page 7, beginning on line 20, strike ``that is not part
of the National Foreign Intelligence Program as of the date
of the enactment of this Act''.
Mr. LEVIN. I very much thank my dear friend from West Virginia, and I
thank the managers.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. ROCKEFELLER. Madam President, I rise today to not offer but to
talk about an amendment because things are in the works. Therefore, I
can only talk, not offer.
The amendment, were it to take place, would be amendment No. 3712. Of
course, it is to No. 2845, which is our basic bill. I think it is
widely agreed that Congress has an obligation to ensure that the
efforts of the 9/11 Commission to improve our system of homeland
security is accurately captured by any legislation that we pass out of
this body.
Last week, Senators McCain and Hutchison offered constructive
amendments on aviation security, but I believe my talking points offer
the most comprehensive approach to improving aviation security, so I
put them forward to my colleagues. I am pleased that Senator McCain was
an original cosponsor of my Aviation Security Amendment Act, which I am
talking about today as if it were an amendment, which it is not, for
the moment anyway.
My idea would be to take needed steps to make certain that Commission
transportation security recommendations are reflected in the pending
legislation faithfully.
The recommendations of the 9/11 Commission are wide ranging. They
build on the work we did in the House-Senate joint inquiry in 2002. I
strongly believe that we must reform our Government, our Congress, and
our intelligence agencies to meet the threat of terrorism as has been
eloquently discussed by the two floor managers on many occasions.
Although the recommendations for transportation security are a small
part of the overall report, their importance cannot be understated.
They are
[[Page S10323]]
sort of the most visible parts of security. I agree with the
Commission's report when it states that targeting terrorists' ability
to travel is a potent weapon against our efforts to protect against
future terrorist attack.
In my position as chairman and now ranking member on the Senate
Commerce, Science, and Transportation Committee's Subcommittee on
Aviation, I have worked on many of these issues that face Congress
after the terrorist attacks of 9/11.
I should point out that the Commerce Committee has looked at these
issues and developed other recommendations in the years preceding
9/11. I also want to note that while we need to incorporate legislation
consistent with the 9/11 recommendations, the report contains specific
criticisms of the FAA prior to 9/11 that I do not believe are
justified.
For example, the report criticizes the Administrator of the FAA for
being more focused on the delays than on security prior to 9/11, but we
all were. We addressed those needs collectively with a new process to
expedite airport construction.
Unfortunately, I found it to be one area of the report that failed to
put into context the actions of the FAA prior to 9/11 and what the
congressional role was during that period.
Additionally, after TWA 800 went down in July 1996, we all know that
we spent countless hours trying to develop measures for aviation
security. That was well before 9/11 by 5 years. Ultimately, we mandated
that more equipment and canine teams be dispatched as quickly as
possible, but clearly the events of 9/11 have required an even more
comprehensive approach.
I have worked closely with Senators McCain, Hollings, Lott, and many
others over this period to take action to help ensure that the events
of 9/11 are not repeated. Congress has passed a number of landmark
bills to address critical needs in filling gaps in our aviation
security. While the legislation that passed in the days immediately
following the terrorist attacks was responsive to the crisis our
aviation system faced, these laws primarily addressed the immediate
needs we had regarding commercial passenger airline security, including
aircraft passenger and baggage screening. I believe we have a much
improved aviation security network because of the laws that were
adopted. Improving aviation security is a continuous process, an
expensive process, and we must continue to make improvements to our
aviation security network. I think we all know much more needs to be
done.
Over the last 3 years, TSA, the Transportation Security
Administration, has had an appropriate opportunity to get up and
running. It was awkward at first. They are much better at it now. I,
along with my colleagues on the Commerce Committee, have conducted
numerous oversight hearings on TSA and aviation security, a number of
them in closed session. Because of this oversight and our understanding
of the transportation system, we were better able to understand where
we had made progress and identify what more work needed to be done
about aviation security.
To further address these needs, Senators McCain, Hollings, and myself
introduced S. 2393, the Aviation Security Advancement Act, which
included measures to tighten air cargo security and bolster other
existing programs.
As we know, after the 9/11 Commission was established, they began a
complete review of the events surrounding 9/11 and the requirements
that would be necessary for a comprehensive strengthening of all of our
homeland defense. When this report was released in July, it contained
specific recommendations regarding transportation security, along with
express concern about cargo and general aviation security. Both cargo
and general aviation security have been subjects considered at hearings
before the Senate Commerce Committee this year, and I introduced S.
2393 in an effort to make these issues a focus of Congress.
Last week, there was the amendment that I am talking about--not
offering but talking about--which would do the following: Standardize
the Federal screener workforce to properly address staffing needs and
promote more efficient and effective screening at airports; require DHS
to consider coordinating aviation-security-related functions to improve
efficiency and effectiveness of passenger screening; increase funding
for all-cargo aviation security to establish an improved security
program and to promote the use of improved technology for cargo
screening; provides an additional $450 million to fund priority capital
security projects at airports; develops a streamlined baggage screening
system by requiring a schedule for the in-line placement of explosive
detection systems; it bolsters the Federal Air Marshal Program;
advances the development of biometric technology for precise
identification of workers and travelers; and improves perimeter
security at airports by authorizing more than $20 million for TSA to
develop biometric technology and fund a biometric center of excellence.
I believe these changes significantly improved the underlying
legislation and have left us with a product that speaks to many of the
problems that the 9/11 Commission found and which continue to exist in
our airport transportation security network.
As I indicated, this is all in some flux now. It is being worked out
with the floor managers. I simply thank my colleagues and the Presiding
Officer and the two floor managers for allowing me to speak on what I
think would be potentially quite a helpful amendment.
I yield the floor.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Madam President, I thank the Senator from West Virginia,
Mr. Rockefeller, for talking about this amendment at this point. I know
he has not officially offered it yet.
We are talking to him about it. I think this amendment responds to
many of the recommendations made by the 9/11 Commission to strengthen
aviation security. I very much appreciate the provisions of this
amendment. We are trying to work out the authorization level that is
included in the bill, but my overall reaction to his proposal is very
favorable.
I know it has been reported by the Commerce Committee and cleared by
the chairman and the ranking member of that committee. As usual, it
reflects the Senator's thoughtful consideration of homeland security
issues.
I very much have appreciated his advice throughout this debate, and I
am hopeful that shortly we will be able to have him officially offer
his amendment, perhaps with a modification, and we would be able to
accept it.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. LIEBERMAN. Senator Collins has spoken exactly for me as well. I
look forward to working with the Senator. It is a good amendment. There
is one part that doesn't go to the heart of it, and we hope to look
over it for a bit more and then I hope before along we can accept the
amendment.
The PRESIDING OFFICER. The Senator from New Mexico.
Mr. DOMENICI. Madam President, I rise first to congratulate the
committee on the hard work they have put into this bill, in particular
Senator Susan Collins, who I think has done a wonderful job. This was a
very difficult situation. She and Senator Lieberman have led the
committee in an admirable way. What I have to say is just what I hope
will be seriously considered as the bill moves its way through to final
completion by the House and Senate, ultimately to be in a form that can
be signed by the President.
I rise to discuss one aspect of the bill concerning privacy and civil
liberties. The bill before us has many appropriate suggestions for
reforming our intelligence activities. Part of this reform includes the
transformation of the Central Intelligence Agency and the enhancement
of the human intelligence capability. We have heard over and over again
that we must increase our human intelligence. Almost every time we get
in a situation where we wonder what is happening in some country--even
sometimes when we are engaged in war--we ask, Do we know this? Do we
know that? The answers are we should, but we don't because we don't
have anyone there. We don't have anyone on the ground. That wasn't
always the case, but it has become a growing difficulty.
Actually, I think we should be getting better and better at it. What
concerns me is that part of this reform in this bill includes the
transformation of the Central Intelligence Agency and its enhancement
of human intelligence, as
[[Page S10324]]
I said, but this reform in human intelligence is very critical because
we must get better at it. But, simultaneously, we must not inhibit it
with overreaching privacy and civil liberties provisions that may have
a chilling effect on such activities.
Simply put, I believe these provisions send a wrong message to our
professional intelligence officers. Clearly, the 9/11 Commission report
includes recommendations highlighting the need for adequate supervision
of executive branch powers in order to protect civil liberties. As a
modern democracy, we cherish individual rights and understand the
importance of creating institutions with a clear mandate for protecting
those civil rights. However, this bill establishes two officers in the
National Intelligence Authority to oversee compliance of privacy
policies and civil rights and civil liberties policies.
It also creates no fewer than eight similar officers for each of the
executive branch departments and agencies concerned with national
security. These officers would be required to recommend privacy and
civil liberties policies and to:
periodically investigate and review department, agency, or
element actions, policies, procedures, guidelines, and
related laws and their implementation to ensure that [they
are] adequately considering privacy and civil liberties in
[their] actions.
These officers are created in addition to an inspector general of the
National Intelligence Authority. Clearly, insisting on all of these
goes well beyond what is necessary and may well hurt our attempt to
improve our human intelligence.
Our history of intelligence reform has many examples of sending wrong
messages to our intelligence officers. The restrictions and
bureaucratic oversight instituted in the past have often hampered the
aggressiveness of operations and left our policymakers with less than a
complete picture about critical intelligence matters.
The chilling effect that began with the Church hearings in the 1970s,
while it did some things that were good--the chilling effect is long
remembered. It has had a long, long effect.
The 1995 directive issued by former CIA Director John Deutch, which
limited officers from including unsavory individuals, was also
something that had enormous chilling effects and caused some difficulty
in obtaining the kind of people we needed as the human resources we
have been describing.
My concern is that excessive oversight established by this current
bill will do the same thing, if not more. It will leave case officers
who do human intelligence missions concerned that they cannot do their
jobs to the best of their ability without worrying about being
disciplined or somebody kind of looking over their shoulder.
Some people have called this reluctance by operations officers, by
these officers, ``risk aversion.'' I don't know if that is the right
characterization, but certainly we have had difficulties accomplishing
certain missions because we could not get enough trained people on the
ground in critical places throughout the world.
I am concerned that the oversight provisions of sections 126, 127,
and 212 in this bill will continue to hurt us in this area.
Having said that, I believe removing these provisions would create a
much better balance between the Government authority needed to protect
America and the civil liberties we hold so dear. Removing these
sections that create too many oversight positions would remove
redundancy while maintaining the Privacy and Civil Liberties Oversight
Board that was recommended by the national commission.
Once again, I believe this bill does a very good job of enhancing our
intelligence system, but let us not undermine these positive steps
before they have had a chance to work.
I yield the floor. 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. ROCKEFELLER. 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
Mr. ROCKEFELLER. Madam President, I rise today in opposition to
amendment No. 3903, offered by Senator Ted Stevens. This amendment
strikes the provision in the bill that calls for the disclosure of the
aggregate amount of funding requested, authorized, and appropriated for
the national intelligence program.
There is one of the fundamental reforms recommended by the 9/11
Commission and one that I have long supported.
The proponents of this amendment have made two central arguments.
First, they suggest we are rushing into this decision without fully
understanding the implications.
Second, they suggest that revealing the amount of overall spending
could somehow damage our national security.
Let us address the first argument, that we are rushing into this
decision. I must point out this is not a new debate. The Congress has
been considering this particular question for at least a decade. In
1993, the Senate adopted an amendment calling for the disclosure of the
aggregate amount of intelligence spending.
Let me repeat that the Senate endorsed the idea 11 years ago.
That effort and a subsequent attempt to make the top line public,
which is what we are talking about--the total amount of the
intelligence budget--in 1997 had the support of Senators Specter,
Boren, and DeConcini, all of whom served as chairman of the Senate
Intelligence Committee. We had a full and complete debate in 1993, and
this issue has been reviewed, debated, and discussed numerous times in
the intervening years. The argument that we are being rushed into this
decision is an excuse being used to stop this important change.
Regarding the second argument, that disclosing the overall budget
will damage our national security, I cannot cite a better source than
the Deputy Director of the CIA John McLaughlin who testified last month
that this important step would reinforce responsibility and
accountability, not only for those receiving the money but for the
Congress as well. In addition, Robert Gates and John Deutch, former
Directors of Central Intelligence, have said that releasing the number
would not damage national security.
Arguing that disclosure of the total spending for national
intelligence would compromise our security and provide enemies with
useful information about our intelligence programs ignores the reality
of the current situation. While the number is in fact classified, it is
widely reported in the press. It also was officially declassified for
fiscal years 1997 and 1998 by former DCI Tenet.
Some have argued that the total amount is not the problem; it is the
budget trends that need to be protected. Again, current practice
undermines this argument. Every year when we do the intelligence
authorization bill, the chairmen and vice chairmen in both Houses come
to the floor and talk about whether we have increased or decreased the
budget that year. Often those statements include specific percentage
increases. These discussions and trends disclose nothing about the
specific intelligence programs being funded.
The idea that our enemies can somehow determine something about our
intelligence capability by knowing the total of what we spend is simply
not accurate. Year-to-year changes in any specific program will not
move the overall total number enough to give an adversary any
indication of how that money is being spent.
In other sensitive national security areas, we disclose much more
information without doing damage. We currently disclose an enormous
amount of detail about our defense budget and military capabilities.
The amount of money we spend on personnel, acquisition, and research
and development is unclassified. Also available are the amounts for
specific weapons systems, such as tanks, aircraft, and missile defense.
Even much of the spending in the defense budget for specific tactical
intelligence programs is unclassified currently.
The disclosure of the total of the national intelligence budget is
simply not an academic debate. This step is critical to many of the
other reforms in
[[Page S10325]]
this bill which our floor managers are trying so hard to get done, and
to some of the proposed congressional reforms we will be discussing
later this week. Without a separate unclassified budget number, the
fund for the National Intelligence Program will still need to be
included in the Defense Department budget. This arrangement will hinder
effective control by the national intelligence director and will
restrict our ability to organize in a way to streamline congressional
oversight, which is what the 9/11 Commission and our floor managers are
seeking in their legislation.
To conclude, it will be virtually impossible to have a separate
appropriations for intelligence without the declassified intelligence
budget. If we do not take this step and make this number public, we are
seriously undermining the reforms in this bill.
I urge my colleagues to oppose the Stevens amendment and support this
key recommendation of the 9/11 Commission.
I thank the Presiding Officer and yield the floor.
Ms. COLLINS. Madam President, I thank the Senator from West Virginia
for his very eloquent presentation.
As the Senator indicated, the intelligence budget's aggregate number
has been made public twice by the DCI. So this is not unprecedented.
But if the amendment offered by the Senator from Alaska were adopted,
let there be no mistake of what the effect would be. The effect would
be that the funding for the National Intelligence Program would still
be funded through Department of Defense.
The whole purpose of this bill is to create a national intelligence
director with significant authority, and the first and perhaps most
significant of those authorities is the control of the budget. The only
way you can give the NID true control over the budget is if you have a
separate account that the NID controls. And we need to do that by
declassifying the top level number.
We did not go as far as the 9/11 Commission recommended. The 9/11
Commission recommended declassifying the top lines of all the agencies'
budgets within the National Intelligence Program. We did not adopt that
approach. Instead, we are only declassifying the aggregate number for
the entire national intelligence budget, a number I note is often
estimated and reported in the newspapers today.
But the point I want to make to supplement the remarks of the Senator
from West Virginia is if we do not do this, if we adopt the amendment
offered by the Senator from Alaska, we will undermine a key reform in
the bill because the intelligence budget is so big that if it is not
going to be declassified, it has to go through the Department of
Defense. There is no other agency or department that is big enough to
conceal the total amount of the budget.
This is going to be an important vote which is coming up this
afternoon.
Mr. DOMENICI. Madam President, when I delivered my short remarks in
reference to the privacy and civil liberties provision, I failed to
mention the other provisions in the bill that attempt to provide
similar or corresponding type relationships. One is called the privacy
and civil liberties oversight board. That is a very different thing
within the purview of intelligence activities. It is almost political
in nature. It is appointed by the President and confirmed by the
Senate, three members of one party and two of the other.
It seems to me a very significant intrusion, perhaps, if one of those
institutions will have a very chilling effect.
In addition to all of those I have mentioned, four, that is five; I
mentioned six, that is seven; and now we have an eighth, which is an
ombudsman, which seems, at least to me, to be a bit of piling on in
this bill. You get one, and you think it is OK; someone has another;
and someone has another. There is no criticism in that, but that is
what it appears to me. We used to call that piling on when we went into
conference where somebody seemed to be piling on because they have so
many provisions affecting the same thing. But in this case, if that is
what it is, it will have serious potential for repercussions that we
don't want.
I thank you, Madam President, and the Senate for yielding me this
time.
Mr. STEVENS. Madam President, I apologize for not being here earlier.
I thank the managers of the bill, Senator Collins and Senator
Lieberman, and their staffs for the work that has been done over the
weekend, which we will be hearing about soon, trying to meet us halfway
in terms of some of the objections we have raised to the bill.
We will soon vote on amendment No. 3903, which the Senator from Maine
has just discussed, declassification responsibility. This is an
enormous step to take mainly because of the absolute lobbying and
pressure from two people from the 9/11 Commission. I have talked to
other members on the Commission who were not so keen about
declassification of the entire intelligence budget other than Mr.
Hamilton and Mr. Kean.
Clearly, it is a massive step. From President Truman to President
Bush, every President of the United States has said do not declassify
the top line of our budget. We have voted in the Senate many times
since I have been in the Senate as Members have tried to do this, and
we have uniformly turned down such a proposal.
Now it is in a bill for the first time. We must take it out. It
requires 51 votes to take out. In the past, it took 51 votes to pass.
We are in a different position now than we were before. Very clearly,
because of the scope of this bill, we are doing something even more
expansive than amendments that came before the Senate before.
Again, I call the attention of the Senators who will vote to the
scope of the definition of national intelligence under this bill. It is
a sweeping definition.
I ask that page 6, beginning on line 19, be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
(6) The term ``National Intelligence Program''--
(A)(i) refers to all national intelligence programs,
projects, and activities of the elements of the intelligence
community;
(ii) includes all programs, projects, and activities
(whether or not pertaining to national intelligence) of the
National Intelligence Authority, the Central Intelligence
Agency, the National Security Agency, the National
Geospatial-Intelligence Agency, the National Reconnaissance
Office, the Office of Intelligence of the Federal Bureau of
Investigation, and the Office of Information analysis of the
Department of Homeland Security; and
(ii) includes any other program, project, or activity of a
department, agency, or element of the United States
Government relating to national intelligence unless the
National Intelligence Director and the head of the
department, agency, or element concerned determine otherwise;
but
(B) except as provided in subparagraph (A)(ii), does not
refer to any program, project, or activity of the military
departments, including any program, project, or activity of
the Defense Intelligence Agency that is not part of the
National Foreign Intelligence Program as of the date of the
enactment of this Act, to acquire intelligence principally
for the planning and conduct of joint or tactical military
operations by the United States Armed Forces.
Mr. STEVENS. My point is this: Included in intelligence are the top
secret plans of this country. They are the planning for future devices
and concepts that deal with interception of information. They deal with
the ability to identify individuals. They deal with so many classified
areas that I may be violating some rules by mentioning the two I
mentioned.
All the money we put in this bill, hide in the intelligence bill, to
stop anyone from knowing about it, has to be disclosed under this
direction, to include everything, any program, project, or activity of
any one of these agencies.
I plead with Members to think about classification. This is not
routine classification of who is an employee of the CIA. That is bad
enough, come to think of it. These activities are so far reaching, and
with so many agencies, including the defense agency that deals with
research activities. It has projects it is working on, which are so far
out that may prove to be viable. They are part of the intelligence
budget. They are classified. They are down in the black portion of the
bill and are kept classified because we do not want anyone to know what
we are researching and what we are developing. It would be included in
this.
No amendment we ever looked at before would have done that, but
because of the definition of intelligence in this bill it becomes all
inclusive and there is no alternative.
Sometimes I think maybe I am just not able to communicate totally
what I am thinking about this bill. It is far reaching to the point of
having the ability to destroy intelligence capability to plan for the
future.
There is no question about the right to know everything--except the
secrets of the country. Aren't we allowed to
[[Page S10326]]
have some secrets? Do we have to disclose a number that encompasses the
financing of secret activities, some so classified they are not even
top secret; they are code word? You have to be cleared for the word.
You have to be totally cleared. And there are very few people cleared
for these activities. I don't think there are many people in the Senate
who are cleared for code word activities.
Should we tell them what we are spending for code word activities? We
do not even tell them the word--but we will have to print in the Record
now, disclose in the top line of the intelligence budget, all of those
activities.
I will speak later about it. Again, I implore the managers of the
bill to think twice about this precedent we would be setting, reversing
the votes in the Senate--reversing because now it requires 51 votes to
take it out. In the past, it was 51 votes to get it passed.
This has shifted the burden from the intelligence people who want to
protect the Intelligence Committee to the people who do not understand
it, do not wish to really understand it. I am not being accusatory of
my two friends. They have worked hard and are trying to understand, but
some of us have lived a lifetime in trying to understand it. This
amendment has to pass.
If we want to disclose the budget to the extent that it is not
classified in terms of top secret or above, that is another matter. We
can disclose a portion of the budget that is in the secret category,
but when we get to top secret and above--no. If we include that, count
me out. I cannot believe we would do that. I hope the Senator will
listen to us later.
Mr. BURNS. Will the Senator yield?
Mr. STEVENS. I am delighted to yield.
Mr. BURNS. As I looked at this amendment and thought of making
available the information of how much we spend on intelligence--not
only are there operations we have to take into consideration, lives of
people are on the line. We make them more vulnerable every day in their
work, gathering intelligence.
Mr. STEVENS. The Senator is absolutely right.
Mr. BURNS. And I ask the Senator, has anyone determined what it does
to the human assets, the people? They are the best we have. Are they
willing to work for this agency to get the best intelligence we need?
Mr. STEVENS. The problem is, once we make available this top line
they wish to disclose and then start through the budget on what you can
find easily, pretty soon you come down to the portion of the budget
that is in the classified sector, and then you start to pick it
apart. You know what will happen. It will keep getting question after
question after question.
But the people who risk their lives, who are foreign nationals, are
paid from this budget. We are really going to put in there how much we
are paying people around the world to spy for us? Are we naive enough
to think we are not paying people? It would be in there. Unless the
Senator disagrees with me, there is one little exception: unless
someone decides otherwise. I am not sure what that means because it
only refers to that one section. It is related to national
intelligence.
Now, national intelligence is intelligence that is covered by section
5. It does not refer to counterintelligence or law enforcement
activities conducted by the Federal Bureau of Investigation. It does
not say it does not cover counterintelligence or activities of the CIA
or the DIA, but it does for the FBI.
I think the problem is, the definitions of these programs are so
specific now to this bill. But this one covers the disclosure of the
total amount. That is what I object to.
Mr. BURNS. Madam President, I have drawn the conclusion that
basically this destroys the network. And we wonder why we do not have
human resources on the ground in some areas in the world and, yes, even
in our own country. I will tell you, if this is disclosed, this will be
one of the main reasons that we will have.
Mr. STEVENS. Let me tell the Senator one thing before I quit. I
remember one morning I woke up and the New York Times had a picture of
the Predator on the front page, and it disclosed that it was capable of
carrying the Hellfire missile. If there was anything that was totally
classified at that time, that was it, and there it was out there on the
front page. Do you know what. About a week later, we missed several
people in Afghanistan on whom we were trying to use the Hellfire
missile. They knew it was already there. They knew it was armed by that
time. Before that, it had not been armed and before that no one had the
capability to arm it. But we developed a way to arm it, and there it
was on the front page of the New York Times.
Now, this concept of leakage of the intelligence community's
activities starts from the top line. I do not understand why we should
reverse the history of this Senate. The Senate has never voted to
disclose the intelligence budget--never.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. LIEBERMAN. Madam President, I have great respect for the Senator
from Alaska. He has always contributed to our country in so many
different ways. I have great respect for his long experience in matters
of defense and intelligence. I assure him of this.
He raised the question about whether the Senator from Maine and I
understand what we are doing. Let me assure him, we understand. We have
spent a lot of time studying this issue. The 9/11 Commission has spent
a lot of time studying this issue. We disagree with the amendment of
the Senator from Alaska. We have a difference of conclusion about
policy, but we understand exactly what we are doing.
What we are doing is saying that the billions of dollars that are
spent every year on intelligence is the people's money. Unless there is
a national security reason not to tell them what the bottom line is we
are spending, they have a right to know. One of the consequences of
that is that there will be more accountability.
Acting Director of Central Intelligence John McLaughlin said to our
committee:
I think it would make some sense to declassify the overall
number of the foreign intelligence program. It would
reenforce responsibility and accountability.
This is nobody who was pulled in out of nowhere to run the CIA. He
spent his entire career, more than 30 years, in intelligence.
Mr. STEVENS. Will the Senator yield?
Mr. LIEBERMAN. No. I would like to----
Mr. STEVENS. But you are using foreign intelligence. This is national
intelligence. He talked about foreign intelligence.
Mr. LIEBERMAN. Excuse me, he talked about national intelligence
before our committee. It is the bottom line, a gross number.
The colloquy between the Senator from Montana and the Senator from
Alaska was interesting but bore no relevance whatsoever to the proposal
in our bill. Do you think we would make this recommendation if we
thought it would compromise the security of anybody in our intelligence
community?
Let me ask you this: How would it? It is the bottom line. It is not
even the 15 constituent agencies of the intelligence community. This
does not compromise anybody's security any more than the Defense
Department budget compromises the security of our soldiers, or the DEA
budget, which is public, Drug Enforcement Agency, compromises the
security of any of our drug enforcement agents, or the FBI budget.
People in DEA and FBI are involved in very dangerous work.
Anyway, it is only the bottom line.
The PRESIDING OFFICER. Under the previous order, the hour of 4:15
having arrived, the Senate will proceed to a series of votes on pending
amendments, with 2 minutes equally divided for debate prior to each
vote. The first amendment is Senator Byrd's amendment, amendment No.
3845.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Madam President, I want to explain to our colleagues
what is going to happen before we proceed. There will be a motion to
table the Byrd amendment. There will be 2 minutes equally divided and
then a motion to table the Byrd amendment.
We have been able to work out an agreement on Senator Warner's
amendment. That will be the second matter we deal with. He will send a
modification to the desk, and it is my hope to be able to adopt that
amendment by a voice vote and vitiate the rollcall request.
[[Page S10327]]
Then there will be consideration of an amendment from Senator Stevens
having to do with the effective date. Again, we have worked out a
compromise on that, working very hard throughout the weekend. I expect
Senator Stevens will propose a modification to his amendment, and that
will allow us to clear that amendment by a voice vote.
We then will proceed to the Stevens amendment dealing with
classification, which has been debated extensively. That will require a
rollcall vote, and I will be moving to table it.
We then will move to another Stevens amendment where, again, I am
pleased to report there is another compromise. It has to do with the
interagency counterterrorism plans. Again, an amendment will be sent to
the desk incorporating the compromise. I believe Senator Stevens will
be offering that. I anticipate being able to accept that on a voice
vote.
So I want my colleagues to know that we have made considerable
progress in accommodating concerns expressed by the Senator from
Virginia and the Senator from Alaska. As a result, I see the need for
two rollcall votes out of the five that were ordered. I hope that is
how it will unfold.
The PRESIDING OFFICER. Who yields time with regard to the amendment?
Mr. BURNS. Madam President, I say to the managers of the bill, I
would like to respond to the ranking member's assessment of why the
funds should be disclosed. I ask permission to do that.
The PRESIDING OFFICER. Does the Senator yield time?
Ms. COLLINS. Madam President, I am wondering if perhaps that could be
done in the 2 minutes on the Stevens amendment, since we have an awful
lot of amendments to get through. I am very hesitant to cut off the
Senator from Montana, but would that be acceptable?
Mr. BURNS. That will be fine. We might ask for a little more time.
Ms. COLLINS. OK. Madam President, we would now proceed to 2 minutes
of debate equally divided on Senator Byrd's amendment.
The PRESIDING OFFICER. That is correct.
Mr. WARNER. Madam President, seeing the absence of Senator Byrd, I
ask the Senator, would you like to proceed to my amendment to take a
little time while he comes to the floor?
Ms. COLLINS. Madam President, I think that would be a good idea. I
ask unanimous consent that we proceed to Senator Warner's amendment
first while we are waiting for Senator Byrd.
The PRESIDING OFFICER. Without objection, it is so ordered.
Who yields time?
The Senator from Virginia.
Mr. WARNER. Madam President, I now observe the presence of the
Senator from West Virginia.
Amendment No. 3877, As Further Modified
Madam President, I send to the desk a modification to amendment No.
3877.
The PRESIDING OFFICER. Without objection, the amendment is further
modified.
The amendment, as further modified, is as follows:
On page 40, strike line 18 and all that follows through
page 42, line 9, and insert the following:
(b) NID Recommendation or Concurrence in Certain
Appointments.--With respect to any position as head of an
agency, organization, or element within the intelligence
community (other than the Director of the Central
Intelligence Agency)--
(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, organization, or
element, 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.
(c) 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.
On page 42, after line 25, add the following:
(e) 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. This is an amendment which strikes a balance between the
respective authorities of the newly to be created NID together with the
Secretary of Defense and others as it relates to the recommendations to
the President for the appointment of Presidential appointees. It has
the support of the distinguished managers on both sides. I worked in
cooperation with the White House staff in its preparation, and they
have expressed strong concurrence.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Madam President, I thank the distinguished chairman of
the Armed Services Committee for working with Senator Lieberman and me
on the appointment authority. This is a very important issue. We have
struck the right balance in the modification. I urge acceptance of the
modification which embodies the compromise we worked on over the
weekend.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. LIEBERMAN. Madam President, I thank Senator Warner for the
initiative and for the reasoning that we have done. We have come up
with a result that is a wise and solid balance. We are creating a new
position--national intelligence director--but we want that position to
work particularly closely with the Secretary of Defense. This
compromise says that on the critical national intelligence agencies--
NSA, NGA, and NRO--that are now in the Defense Department, whereas the
initiative to head that department was previously in the national
intelligence director, we are giving it back to the Secretary of
Defense but asking for concurrence from the national intelligence
director before it goes to the President.
The PRESIDING OFFICER. The time of the managers has expired.
Mr. LIEBERMAN. In fact, this amendment broadens the involvement of
the national intelligence director in these important nominations.
I thank the Senator for his cooperation. It shows that Senator
Collins and I are willing to hear and accept a good idea.
Mr. WARNER. Madam President, I note the long hours and hard work of
the two managers. We started on this on Thursday, when I first
introduced it, and we worked it again on Friday. Those were productive
days. Even though we did not have rollcall votes on Friday, much was
accomplished, including the resolution of this amendment.
I ask now that the amendment be agreed to.
The PRESIDING OFFICER. The question is on agreeing to amendment No.
3877, as further modified.
The amendment (No. 3877) was agreed to.
Ms. COLLINS. Madam President, I move to reconsider the vote.
Mr. WARNER. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Amendment No. 3845
The PRESIDING OFFICER. The question now occurs on the amendment of
the Senator from West Virginia.
The Senator from Maine.
Ms. COLLINS. Madam President, the amendment of the Senator from West
[[Page S10328]]
Virginia would considerably limit the authority of the national
intelligence director to move money and people. It would undermine a
key reform that is included in this bill, a reform that the 9/11
Commission says is absolutely necessary to empower the NID. Otherwise
we are just creating another layer of bureaucracy. We need to make sure
that the NID has the authority to marshal the resources, the people,
and the funding to counter the biggest threats we face.
The Byrd amendment would actually give the new national intelligence
director less authority than the DCI has under current law to move
around money and personnel to address urgent needs. Under the Byrd
amendment, aggregate transfers from a department or an agency would be
limited by a dollar and a percentage amount. There is no such
limitation in current law. This amendment represents a step backward
from current law. It would severely undermine the reforms. I am going
to move that it be tabled. I urge my colleagues to oppose the
amendment.
The PRESIDING OFFICER. The Senator from West Virginia has 1 minute.
Mr. BYRD. Madam President, I ask unanimous consent for 2 minutes. I
would like to yield to the distinguished Senator, chairman of the
Appropriations Committee and President pro tempore of the Senate.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. COLLINS. Madam President, I ask unanimous consent for an
additional minute on our side, then, as well.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Alaska.
Mr. STEVENS. Madam President, I believe this is another amendment
that is sort of misunderstood. The powers of the national intelligence
director under this bill are much broader than the CIA Director's.
Under this bill he has the right to move money from any part of the
intelligence community to another part without consent of the agency to
whom we appropriated money and, really, without regard to the program
activities or even the specifications Congress has put on that money.
Take, for instance, reserve funds. Reserve funds are there in the
event of emergencies for the specific agency involved. He can go in to
take the reserve funds from one agency and move them entirely to
another agency without any consent of the agency or the consent of the
committees that appropriated the money for that reserve contingency.
The Senator's amendment makes a lot of sense. Those of us who are
cosponsors are very serious about our support.
Mr. LEVIN. Mr. President, I support much of what is contained in
amendment No. 3845, offered by Senator Byrd. However, I will vote
against the amendment because it strikes from the underlying bill
section 224(b)(3), a provision included in an amendment I offered
during markup of the bill in the Government Affairs Committee. Section
224 requires that the NID, the Director of the NCTC, and the Director
of any other intelligence center make intelligence information
available upon the request of committees of Congress with jurisdiction
over the subject matter to which the information relates, or upon the
request of the chairman or ranking member of the House or Senate
Intelligence Committees. Too much information and too many documents
have been withheld from congressional committees by the CIA. If we are
going to prevent a stronger national intelligence direction from
becoming a stronger ``yes man'' and stronger political arm of a White
House, there must be strong oversight from Congress.
The intention of section 224(b)(3) is to limit the amount of
intelligence information that the executive branch can legally withhold
from the Congress. The requirement to provide information to Congress
exists unless the President asserts a Constitutionally-based privilege.
Senator Byrd and I both agree that the Congress should have broad
access to intelligence information. I disagree, however, with that part
of the Byrd amendment which strikes section 224(b)(3).
Mr. NELSON of Florida. Mr. President, while I agree with the
provisions of Senator Byrd's amendment, No. 3845, that seeks to provide
greater congressional oversight of the national intelligence authority,
my objections to provisions in the amendment that would require the
National Intelligence Director to relinquish budget authority make it
necessary for me to oppose the amendment and vote in favor of the
motion to table the amendment.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. BYRD. Madam President, we must not take control of public moneys
from the elected representatives of the people and give it to an
unelected bureaucrat. The Byrd-Stevens-Inouye-Warner amendment gives
the director the flexibility to transfer personnel and appropriations
to protect against terrorist attacks but provides a leash with which to
rein him in should abuses occur. They may occur. They probably will in
time. This is a safeguard.
I say listen to the Constitution of the United States. I am very
interested in reform, and I admire the work the committee has done. But
we are acting too hastily. We are not given enough time, and we are
going to rue the day that we turned this amendment down and failed to
leash this unelected bureaucrat. We, the people, stand by the
Constitution.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Madam President, testimony from former DCIs as well as
other experts confirmed the need for stronger authority to transfer and
reprogram funds and told us this is key to reform of the intelligence
community. The Acting Director of the CIA said it best. He talked about
how cumbersome the current system is. He told us you first have to
acquire the approval of the agency head, then you have to go to the
department secretary, then you have to go to OMB, and then you have to
go to Congress. We are keeping the OMB and congressional steps. I want
to make that clear. But that process, he told us, typically takes 5
months, and, as he said--and I quote John McLaughlin:
So you can see that's not very agile to meet the needs of
today. My view is that the national intelligence director
ought to have the authority to move those funds.
I would also note that other provisions in the bill are opposed by
the White House, and the amendment is opposed by the chairman of the
Intelligence Committee.
I move to table the amendment and ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The question is on the motion.
The clerk will call the roll.
Mr. McCONNELL. I announce that the Senator from Texas (Mr. Cornyn)
and the Senator from Oklahoma (Mr. Inhofe) are necessarily absent.
I further announce that if present and voting the Senator from
Oklahoma (Mr. Inhofe) would vote ``yea.''
Mr. REID. I announce that the Senator from Hawaii (Mr. Akaka), the
Senator from New Jersey (Mr. Corzine), the Senator from North Carolina
(Mr. Edwards), the Senator from Florida (Mr. Graham), the Senator from
South Carolina (Mr. Hollings), the Senator from Massachusetts (Mr.
Kennedy), and the Senator from Massachusetts (Mr. Kerry) are
necessarily absent.
The PRESIDING OFFICER (Mr. Coleman). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 62, nays 29, as follows:
[Rollcall Vote No. 195 Leg.]
YEAS--62
Alexander
Allard
Allen
Bayh
Bingaman
Bond
Boxer
Breaux
Brownback
Bunning
Campbell
Cantwell
Carper
Chambliss
Clinton
Coleman
Collins
Conrad
Craig
Crapo
Daschle
DeWine
Dole
Durbin
Ensign
Enzi
Feingold
Feinstein
Fitzgerald
Frist
Graham (SC)
Grassley
Hatch
Hutchison
Landrieu
Levin
Lieberman
Lincoln
Lott
Lugar
McCain
McConnell
Mikulski
Miller
Murray
Nelson (FL)
Nelson (NE)
Nickles
Pryor
Roberts
Rockefeller
Santorum
Schumer
Sessions
Shelby
Smith
Snowe
Specter
Sununu
Talent
Voinovich
Wyden
NAYS--29
Baucus
Bennett
Biden
Burns
Byrd
Chafee
Cochran
Dayton
Dodd
Domenici
Dorgan
Gregg
Hagel
Harkin
Inouye
[[Page S10329]]
Jeffords
Johnson
Kohl
Kyl
Lautenberg
Leahy
Murkowski
Reed
Reid
Sarbanes
Stabenow
Stevens
Thomas
Warner
NOT VOTING--9
Akaka
Cornyn
Corzine
Edwards
Graham (FL)
Hollings
Inhofe
Kennedy
Kerry
The motion was agreed to.
Amendment No. 3829, As Modified
The PRESIDING OFFICER. There will now be 2 minutes of debate equally
divided on the Stevens amendment No. 3829.
Ms. COLLINS. Mr. President, I am very pleased to inform our
colleagues that, after working very closely with Senator Stevens,
Senator Lieberman and I have agreed to a modification of his amendment
that is acceptable to us.
The bill originally called for an effective date after enactment of
180 days. The amendment of Senator Stevens would retain that date but
give the President the ability to extend for another 6 months for
certain provisions of the bill. That is an acceptable compromise.
I thank the Senator from Alaska for working with the Senator from
Connecticut and myself to reach this agreement. I want my colleagues to
take note that we have accommodated the Senator's concern in this
regard.
Mr. STEVENS. I send a modification of my amendment to the desk.
The PRESIDING OFFICER. The amendment is so modified.
The amendment (No. 3829), as modified, is as follows:
amendment no. 3829 (as modified)
On page 133, line 4, strike ``90 days'' and insert ``180
days''.
On page 134, line 4, strike ``180 days'' and insert ``270
days''.
On page 135, line 15, strike ``270 days'' and insert ``1
year''.
On page 140, line 6, strike ``30 days'' and insert ``90
days''.
On page 145, line 12, strike ``1 year'' and insert ``15
months''.
On page 149, line 16, strike ``1 year'' and insert ``15
months''.
On page 150, line 20, strike ``1 year'' and insert ``15
months''.
On page 212, beginning on line 3, strike ``subsection (b),
this Act, and the amendments made by this Act,'' and insert
``subsections (b), (c), and (d), titles I through III of this
Act, and the amendments made by such titles,''
On page 212, between lines 6 and 7, insert the following:
(b) Specified Effective Dates.--(1) The provisions of
section 206 shall take effect as provided in such provisions.
(2) The provisions of sections 211 and 212 shall take
effect 90 days after the date of the enactment of this Act.
On page 212, line 7, strike ``(b)'' and all that follows
through ``United States'' on line 10 and insert ``(c) Earlier
Effective Date.--In order to safeguard the national security
of the United States through rapid implementation of titles I
through III of this Act while also ensuring a smooth
transition in the implementation of such titles,''.
On page 212, beginning on line 11, strike ``Act (including
the amendments made by this Act), or one or more particular
provisions of this Act'' and insert ``titles I through III of
this Act (including the amendments made by such titles), or
one or more particular provisions of such titles''.
On page 212, between lines 16 and 17, insert the following:
(d) Delayed Effective Date.--(1) Except with respect to a
provision specified in subsection (b), the President may
extend the effective date of a provision of titles I through
III of this Act (including the amendments made by such
provision) for any period up to 180 days after the effective
date otherwise provided by this section for such provision.
(2) The President may extend the effective date of a
provision under paragraph (1) only if the President
determines that the extension is necessary to safeguard the
national security of the United States and after balancing
the need for a smooth transition in the implementation of
titles I through III of this Act against the need for a rapid
implementation of such titles.
On page 212, line 17, strike ``(c)'' and insert ``(e)''.
On page 212, line 18, strike ``(b)'' and insert ``(c) or
(d)''.
On page 212, line 23, strike ``earlier'' and insert
``earlier or delayed''.
On page 212, line 25, strike ``earlier'' and insert
``earlier or delayed''.
Mr. STEVENS. I thank the Senators from Maine and Connecticut for
working with us on this amendment. It does stretch out the timeframe
and makes much more sense.
Mr. LIEBERMAN. Mr. President, I thank the Senator from Alaska. We
have improved this. We have said 180 days for the effective date. If
the President decides it is in the national security interest to extend
that, he can do that. If he decides he wants to implement it earlier
than 180 days in the national security interest, he can do that as
well. It is a good compromise. I support it.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
The amendment (No. 3829), as modified, was agreed to.
Mr. STEVENS. Mr. President, I move to reconsider the vote.
Mr. LIEBERMAN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Amendment No. 3903, as modified
The PRESIDING OFFICER. There will now be 2 minutes of debate equally
divided on the Stevens amendment No. 3903.
Mr. STEVENS. Mr. President, could we have order?
Determining classification is the responsibility and duty of the
chief executive of the United States, the President, who is also
Commander in Chief. Presidents Truman through Bush has determined that
the overall intelligence budget top-line figure is, and shall remain,
classified, and I believe we should not overrule that judgment.
The foundation of an effective intelligence capability, is secrecy.
Secrecy protects not only the information that we collect, but also the
brave people that put themselves at risk to do the collection of it. We
are an open and a free society that generally abhors secret dealings by
our Government. But in the case of intelligence collection and
analysis, secrecy, is absolutely necessary.
Some of my colleagues argue that the American people have a right to
know how much of their money is being spent to defend their Nation's
security through intelligence-gathering operations. I assert today
that, through its elected officials, the public interests are being
effectively served.
Some argue that disclosing the total budget amount will instill
public confidence and enable the American people to know what portion
of the Federal budget is dedicated to intelligence activities. This
bill recommends that the overall intelligence budget should no longer
remain classified. I believe that the total budget figure is of no use
to anyone but to those who wish to do us harm.
For example, what do the numbers tell our adversaries or potential
adversaries in the world? In any given year, perhaps, not a great deal.
But while watching the changes in the budget over time, and using
information gathered by their own intelligence activities,
sophisticated analysts can indeed learn a great deal.
Trend analysis, as you know, is a technique that our own analysts use
to make predictions and to reach conclusions. There are hostile foreign
intelligence agencies all over the world that are focused solely on
gathering every bit of information that they can about our own
intelligence-gathering operations and our capabilities. Their ultimate
goal is to exploit weaknesses and to deny access and to deceive our own
intelligence collectors. Denial and deception is already a serious
concern for the intelligence community, and providing our enemies or
potential enemies with any insight as to what we spend on intelligence
will only make it worse, not better.
No other nation, friend, or ally, reveals the amount that it spends
on intelligence. It would set a terrible, dangerous precedent, because
right after the aggregate budget was revealed, that number doesn't say
much and so the calls would be quickly for more information.
This is a slippery slope. Reveal the first number and it will be just
a matter of minutes before there will be a call to reveal more
information.
I want to remind my colleagues that we voted on a similar measure in
1997--the amendment failed by a vote of 56-43. There have also been
five votes in the House--all of which have failed. Let us not change
our records now.
The President of the United States and every President since Harry
Truman has requested that the Senate not declassify the amount our
country spends on intelligence. I believe we should listen to what he
tells us. I have amended my original amendment to request that only a
study be done on this important issue. That the national intelligence
director have the time to investigate this important topic and let
[[Page S10330]]
him, with the President, decide what the safety needs of our Nation are
to be.
Based on the recommendations of our colleagues here in the past, I
hope you will accept this change and support this amendment.
The PRESIDING OFFICER. The time of the Senator has expired.
The Senator from Connecticut.
Mr. LIEBERMAN. I rise respectfully to oppose the amendment of the
Senator from Alaska. The 9/11 Commission recommended that we disclose
not only the bottom line of what we spend on intelligence but the
budgets of each of the 15 constituent agencies.
The Governmental Affairs Committee decided that we could respond and
respect the public's right to know by putting out the bottom line
number. That means X billion dollars. No details about what goes to
what agency or certainly not what goes to what program or what
personnel. But we were not ready to order the disclosure of the
intelligence agency budget specifically, and we asked the national
intelligence director to come back to us with a study.
That is a good balance. The Senator from Alaska would prohibit public
disclosures of the bottom line. The public has a right to know at least
that. One thing they might conclude from that is that we are not
spending enough on intelligence in the war on terrorism as compared to
other things we are spending on.
We worked hard on this. It is balanced. It respects the right to
know. The families of people lost on 9/11 oppose this amendment, as I
do.
I move to table and I ask for the yeas and nays.
Ms. COLLINS. Mr. President, I would also point out that if we do not
disclose the top line, the result is the intelligence budget is still
funded through the Department of Defense. So if we are trying to give
the national intelligence director real budget authority, we have to
disclose that top line. We are not disclosing the top line of the CIA,
the DIA, the NSA; it is only the aggregate figure for the entire
national intelligence budget. Otherwise we are not reforming the
process. The funding will have to go through the Department of Defense.
Mr. STEVENS. Mr. President, I send a modification to the desk.
The PRESIDING OFFICER. The amendment is so modified.
The amendment (No. 3903), as modified, is as follows:
amendment no. 3903 as modified
On page 115, strike lines 15 through 25 and insert the
following:
(a) Study on Disclosure of Aggregate Amount of
Appropriations Requested.--The National Intelligence Director
shall conduct a study to assess the advisability of
disclosing to the public the aggregate amount of
appropriations requested in the budget of the President for
each fiscal year for the National Intelligence Program.
On page 116, line 1, strike ``(c)'' and insert ``(b)''.
On page 116, strike lines 21 through 23, and insert the
following:
(c) Report.--Not later than 180 days after the effective
date of this section, the National Intelligence Director
shall submit to Congress a report on the results of the
studies carried out under subsections (a) and (b).
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. LIEBERMAN. I move to table the amendment and ask for the yeas and
nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The question is on agreeing to the motion.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. McCONNELL. I announce that the Senator from Oklahoma (Mr. Inhofe)
is necessarily absent.
I further announce that if present and voting the Senator from
Oklahoma (Mr. Inhofe) would vote ``aye.''
Mr. REID. I announce that the Senator from Hawaii (Mr. Akaka), the
Senator from New Jersey (Mr. Corzine), the Senator from North Carolina
(Mr. Edwards), the Senator from Florida (Mr. Graham), the Senator from
South Carolina (Mr. Hollings), the Senator from Massachusetts (Mr.
Kennedy), and the Senator from Massachusetts (Mr. Kerry) are
necessarily absent.
The result was announced--yeas 55, nays 37, as follows:
[Rollcall Vote No. 196 Leg.]
YEAS--55
Alexander
Baucus
Bayh
Biden
Bingaman
Boxer
Breaux
Cantwell
Carper
Chafee
Clinton
Coleman
Collins
Cornyn
Daschle
Dayton
DeWine
Dodd
Dorgan
Durbin
Ensign
Feingold
Feinstein
Graham (SC)
Grassley
Gregg
Hagel
Harkin
Jeffords
Johnson
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Lott
McCain
Mikulski
Murray
Nelson (FL)
Pryor
Reed
Reid
Rockefeller
Santorum
Sarbanes
Schumer
Snowe
Specter
Stabenow
Sununu
Voinovich
Wyden
NAYS--37
Allard
Allen
Bennett
Bond
Brownback
Bunning
Burns
Byrd
Campbell
Chambliss
Cochran
Conrad
Craig
Crapo
Dole
Domenici
Enzi
Fitzgerald
Frist
Hatch
Hutchison
Inouye
Kyl
Lugar
McConnell
Miller
Murkowski
Nelson (NE)
Nickles
Roberts
Sessions
Shelby
Smith
Stevens
Talent
Thomas
Warner
NOT VOTING--8
Akaka
Corzine
Edwards
Graham (FL)
Hollings
Inhofe
Kennedy
Kerry
The motion was agreed to.
Mr. STEVENS. Parliamentary inquiry.
The PRESIDING OFFICER (Mr. Cornyn). The Senator from Alaska.
Mr. STEVENS. If I give notice of reconsideration of that vote, what
happens under the cloture vote as set for tomorrow?
The PRESIDING OFFICER. If the vote is reconsidered, the amendment
will be pending.
Mr. STEVENS. I give notice of reconsideration.
The PRESIDING OFFICER. The Senator from Alaska.
Mr. STEVENS. Mr. President, I regret seriously I was unable to make
my statement in full. I was not notified of this time limit when I left
on Friday. I came back and found it. The statement of my amendment
there was not a statement of my amendment. It was a statement in
opposition to my amendment. I was unable to tell the Senate that the
statement of policy of the President of the United States supports this
amendment. I think the Senate should reconsider tomorrow and think
again about this amendment.
Is there a time limit on me right now?
Mr. LIEBERMAN addressed the Chair.
Mr. STEVENS. Mr. President, I have the floor. Is there a time limit?
The PRESIDING OFFICER. The Chair advises the Senator that he cannot
move to reconsider as he did not vote on the prevailing side.
Mr. LIEBERMAN. I move to reconsider the vote. I was on the prevailing
side.
Ms. COLLINS. I move to lay that motion on the table.
Mr. STEVENS. Mr. President, I object.
The PRESIDING OFFICER. The question then is on agreeing to the motion
to table.
Mr. STEVENS. Mr. President, is that debatable?
The PRESIDING OFFICER. It is not debatable.
The question is on agreeing to the motion to table.
The motion is agreed to.
Mr. STEVENS. I object.
The PRESIDING OFFICER. The motion to reconsider is laid upon the
table.
The motion to lay on the table was agreed to.
The Senator from Alaska.
Mr. STEVENS. Mr. President, I call up amendment No. 3830.
Several Senators addressed the Chair.
Mr. STEVENS. I still have the floor, do I not, Mr. President?
Amendment No. 3826, As Modified
The PRESIDING OFFICER. There will now be 2 minutes of debate equally
divided on the Stevens amendment No. 3826, according to the previous
order.
The Senator from Maine.
Ms. COLLINS. Mr. President, I believe we have worked out an agreement
on Senator Stevens' amendment No. 3826, as modified, that is acceptable
to both sides. I am pleased we have been able to reach a compromise.
This amendment would clarify the NCTC Director's role in advising the
President and the national intelligence director. It uses language that
we worked out carefully during the committee markup with Senator Levin
and others.
[[Page S10331]]
Specifically, the NCTC Director would advise the President and the
NID on interagency counterterrorism planning and activities which is
consistent with the NCTC Director's responsibility to conduct
interagency counterterrorism planning.
I urge adoption of the amendment, as modified.
Mr. STEVENS. Has the amendment been modified, Mr. President?
The PRESIDING OFFICER. Without objection, the amendment is modified.
The amendment, as modified, is as follows:
On page 84, beginning on line 8, strike ``joint operations
relating to counterterrorism'' and insert ``interagency
counterterrorism planning and activities''.
Mr. STEVENS. Mr. President, I will say for the record the Senator
from Maine is correct. We have modified this as requested by the
committee.
The PRESIDING OFFICER. The question is on agreeing to amendment No.
3826, as modified.
The amendment (No. 3826) was agreed to.
Ms. COLLINS. I move to reconsider the vote.
Mr. LIEBERMAN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Amendment No. 3827
The PRESIDING OFFICER. The Senator from Alaska.
Mr. STEVENS. I call up amendment No. 3830.
The PRESIDING OFFICER. Under the previous order, the next vote is on
amendment No. 3827. There will be two minutes of debate evenly divided.
The Senator from Maine.
Ms. COLLINS. Mr. President, I ask unanimous consent that that
amendment be temporarily laid aside.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. STEVENS. Now what is the regular order, Mr. President?
The PRESIDING OFFICER. There is no order before the Senate.
The Senator from Alaska.
Amendment No. 3830
Mr. STEVENS. Mr. President, I call up amendment No. 3830.
Mr. LIEBERMAN. Mr. President, I object.
The PRESIDING OFFICER. Objection is heard.
Mr. STEVENS. There is an objection to calling up the amendment?
Mr. LIEBERMAN. I suggest the absence of a quorum.
Mr. STEVENS. I just want to call it up and set it aside and qualify
it for a vote later.
Mr. LIEBERMAN. I suggest the absence of a quorum.
The PRESIDING OFFICER. It takes unanimous consent to set aside the
pending amendment.
Mr. LIEBERMAN. I repeat my objection, and 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. 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 have had a conversation with the
Senator from Alaska. I remove my objection to his calling up the
amendment.
The PRESIDING OFFICER. The Senator from Alaska.
Mr. STEVENS. Mr. President, I renew my request.
The PRESIDING OFFICER. Without objection, the pending amendment is
set aside.
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 3830.
Mr. STEVENS. 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 modify certain provisions relating to the Central
Intelligence Agency)
On page 28, beginning on line 16, strike ``of the National
Intelligence Director''.
On page 43, beginning on line 1, strike ``OF THE NATIONAL
INTELLIGENCE DIRECTOR''.
On page 43, beginning on line 5, strike ``of the National
Intelligence Director'' and insert ``for the National
Intelligence Director and the Director of the Central
Intelligence Agency''.
On page 43, beginning on line 17, strike ``of the National
Intelligence Director''.
On page 141, between lines 16 and 17, insert the following:
(H) the Director of the Central Intelligence Agency or his
designee;
On page 141, line 16, strike ``(H)'' and insert ``(I)''.
On page 141, line 18, strike ``(I)'' and insert ``(J)''.
On page 141, line 21, strike ``(J)'' and insert ``(K)''.
On page 179, beginning on line 21, strike ``and
coordination of'' and all that follows through ``elements
of'' beginning on line 23 and insert ``, and coordinate
outside the United States, the collection of national
intelligence through human sources by agencies and
organizations within''.
On page 194, beginning on line 23, strike ``of the National
Intelligence Director''.
Mr. STEVENS. Mr. President, what is the pending amendment that was
set aside?
The PRESIDING OFFICER. The pending amendment was No. 3810 by Senator
Levin which has been set aside.
Mr. STEVENS. Mr. President, am I interfering with a time agreement
now by continuing on the floor?
The PRESIDING OFFICER. There is no time.
Mr. STEVENS. Mr. President, I am constrained to say that I am
disturbed at the process that has just been used. I was out of town. I
left town saying I was willing to work. I come back and find a series
of my amendments have a 2-minute time limit. I was not consulted on
that at all. I think in view of the haste with which this bill is
moving forward, it is very sad. It is going to change this Senator's
vote on cloture tomorrow because I am tired of having this bill being
pushed so hard.
It is being pushed by a group of people who were part of a commission
that went out of existence. They went out and raised a million and a
half dollars, and they are lobbying this Senate. They are lobbying
hard, principally the two leaders. They are no longer leaders of that
Commission, and they are demanding that we act. Are they registered
lobbyists? Are they? What right have they to push this Senate so hard?
I think we should take some time and consider what we are doing. If
we are not careful, we will destroy the intelligence system we are
trying to reorganize. I am in favor of reorganizing it. I said that in
the beginning. But this is going too fast, when I am prevented from
even reading, perhaps just 1 minute to read a 3-minute statement, and
nothing in front of the Senators on our side indicated the President of
the United States was in favor of this amendment. I offered it because
the statement came from the administration.
I think we should slow down. If we don't slow down, we are going to
be around a long time because I remember Senator Allen who stretched
out a cloture vote once for 3 weeks. I really believe there should be
some senatorial courtesy involved when a Senator is trying to oppose a
pressure group like this. It is not easy to do. I know that. But I am
up to it, I tell you. I am up to it. And people better understand that.
I ask that that amendment be set aside for the purpose of further
consideration tomorrow.
The PRESIDING OFFICER. Without objection, it is so ordered. The
amendment is set aside.
The Senator from Kansas.
Amendment No. 3740, As Modified
Mr. ROBERTS. Mr. President, I ask unanimous consent to set aside the
pending amendment, and I call up amendment No. 3740 with a modification
which I send to the desk.
The PRESIDING OFFICER. The amendment is already pending.
Mr. ROBERTS. Mr. President, I thank the chairman and ranking member
for crafting an amendment with me that embodies several technical and
clarifying modifications to their bill. If, in fact, the distinguished
Senator and the distinguished ranking member at this time would accept
the amendment, it would be highly desirable on the part of this
Senator.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Mr. President, I thank the distinguished chairman of the
Intelligence Committee for working very closely with us in proposing
this amendment which combines portions of several other amendments that
he has
[[Page S10332]]
introduced. It clarifies that the mission of the national intelligence
authority includes eliminating barriers to the coordination of all
intelligence activities, including but not limited to counterterrorism.
It appropriately ensures that the congressional intelligence committees
will receive reports relating to the acquisition authorities of NSA and
NGA. It provides that the NID may directly modify budget proposals made
by agencies as part of the national intelligence program. I appreciate
how closely the chairman has worked with Senator Lieberman and me. I am
pleased to support the amendment, and I urge its adoption.
Mr. ROBERTS. I thank the Senators for their assistance.
The PRESIDING OFFICER. Without objection, the amendment is modified.
The amendment, as modified, is as follows:
On page 9, line 13, strike ``counterterrorism'' and insert
``intelligence, including counterterrorism,''.
On page 23, line 1, strike ``may require modifications''
and insert ``may modify, or may require modifications,''.
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 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''.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
The amendment (No. 3740) was agreed to.
Ms. COLLINS. Mr. President, I move to reconsider the vote and to lay
that motion on the table.
The motion to lay on the table was agreed to.
Mr. ROBERTS. I ask unanimous consent to set aside the pending
amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendments Nos. 3741, 3744, and 3751, Withdrawn
Mr. ROBERTS. Mr. President, I ask unanimous consent to withdraw from
consideration amendment Nos. 3741, 3744, and 3751.
The PRESIDING OFFICER. Without objection, the amendments are
withdrawn.
Amendment No. 3748, As Modified
Mr. ROBERTS. Mr. President, I ask unanimous consent to set aside the
pending amendment, and call up amendment No. 3748, as modified, which I
send to the desk.
The PRESIDING OFFICER. Without objection, it is so ordered. The
amendment is modified.
The amendment, as modified, is as follows:
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 Analytic Review Unit may make such recommendations to the
National Intelligence Director and to appropriate heads of
the elements of the intelligence community for awards,
commendations, additional training, or disciplinary or other
actions concerning personnel as the Analytic Review Unit
considers appropriate in light of such evaluations. Any
recommendation of the Analytic Review Unit under this
paragraph shall not be considered binding on the official
receiving such recommendation.
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. Mr. President, this amendment ensures that the analytic
review unit will be able to perform an important quality control and
accountability mechanism for the analytic product of the intelligence
community. This is an important function that has not been performed by
the intelligence community as well as it should have. I thank the
chairman and ranking member for working with me to ensure that this
important amendment is adopted.
I yield to the distinguished chairman.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Mr. President, I again thank the distinguished chairman
for working very closely with the floor managers on this amendment.
It provides thoughtful clarifications to the establishment of an
analytic review unit under the Collins-Lieberman bill. I believe the
changes made by this amendment would strengthen the bill. I urge its
adoption.
The PRESIDING OFFICER. The Senator from Connecticut is recognized.
Mr. LIEBERMAN. Mr. President, I, too, rise to support the amendment
the Senator from Kansas offered. It clarifies and strengthens the bill.
I thank him for it and I urge its adoption.
The PRESIDING OFFICER. The question is on agreeing to the amendment,
as modified.
The amendment (No. 3748), as modified, was agreed to.
Mr. WARNER. Mr. President, I would like at this time to address the
Senate and the managers with regard to two amendments. I want to be
cooperative in the procedures that they may have in mind for further
amendments. If it is convenient, I would like to move forward. If not,
I would like to know at what time would be more convenient for the
managers. I think we are making considerable progress.
The PRESIDING OFFICER. The Senator from Maine is recognized.
Ms. COLLINS. Mr. President, I very much appreciate the courtesy of
the Senator from Virginia. I would like to suggest that we have a brief
quorum call so we can try to have some order. We have several requests
on both sides of the aisle to proceed on amendments. I need to compare
notes with the Democratic manager of the bill.
Mr. WARNER. Mr. President, I certainly want to be cooperative. I hope
the Senator will take into consideration that I now have the floor.
Ms. COLLINS. I certainly will. If the Senator wants to proceed--
Mr. WARNER. No. I want to be cooperative. I am perfectly willing to
yield the floor for the purpose of a quorum. It is my hope that I will
be recognized at such time as the quorum call is to be withdrawn at the
discretion of the managers.
Ms. COLLINS. Thank you, Mr. President. That is my intent.
I suggest the absence of a quorum.
[[Page S10333]]
The PRESIDING OFFICER. The clerk will call the roll.
The assistant 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.
Mr. CHAMBLISS. Mr. President, I ask unanimous consent that I be
allowed to proceed as in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The remarks of Mr. Chambliss are printed in today's Record under
``Morning Business.'')
Mr. CHAMBLISS. I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. DAYTON. 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. DAYTON. Mr. President, what is the pending business?
The PRESIDING OFFICER. The Senate is considering the Intelligence
Reform Act.
Mr. DAYTON. Mr. President, I ask unanimous consent that I may be
permitted to speak for up to 10 minutes as in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
IRAQ'S WMD
Mr. DAYTON. Over the weekend, there was a very alarming report in the
New York Times that stated that senior administration officials
repeatedly failed to disclose the contrary views of America's leading
nuclear scientists about tubes that could be used for either a nuclear
weapons program in Iraq or for alternative purposes, such as short-
range rockets.
I understand the article is printed in today's Record in Senator
Byrd's remarks.
The investigative article found:
Senior administration officials . . . sometimes overstated
even the most dire intelligence assessments of the tubes, yet
minimized or rejected the strong doubts of nuclear experts.
That they had alternative uses.
They worried privately that the nuclear case was weak, but
expressed sober certitude in public.
The article goes on to say:
The absence of unconventional weapons in Iraq is now widely
seen as evidence of a profound intelligence failure, of an
intelligence community blinded by ``group think,'' false
assumptions and unreliable human sources.
Yet the tale of the tubes, pieced together through records
and interviews with senior intelligence officers, nuclear
experts, administration officials and Congressional
investigators, reveals a different failure.
Far from ``group think,'' American nuclear and intelligence
experts argued bitterly over the tubes. . . .
Precisely how knowledge of the intelligence dispute
traveled through the upper reaches of the administration is
unclear. Ms. Rice--
The National Security Adviser--
knew about the debate before her Sept. 2002 CNN appearance. .
. . President Bush learned of the debate at roughly the same
time, a senior administration official said.
The report goes on to document how, even though the 15 different
agencies of the Federal Government with responsibility for intelligence
gathering and assessment differed on this analysis, according to
congressional and intelligence officials, none of them informed senior
policymakers in the Congress about the Energy Department's dissent, and
the Energy Department contained the nuclear experts most knowledgeable
about the probable use of these tubes for another purpose.
Despite this disagreement, despite the uncertainty, Vice President
Cheney in the fall of 2002, in a speech to the Veterans of Foreign Wars
on August 26 of that year, stated:
We now know Saddam has resumed his efforts to acquire
nuclear weapons. . . .Many of us are convinced that Saddam
will acquire nuclear weapons fairly soon. Just how soon we
cannot really gauge. Intelligence is an uncertain business,
even in the best of circumstances.
The Vice President went on to say:
Armed with an arsenal of these weapons of terror, and
seated atop 10 percent of the world's oil reserves, Saddam
Hussein could then be expected to seek domination of the
entire Middle East, take control of a great portion of the
world's energy supplies, directly threaten America's friends
throughout the region, and subject the United States or any
other nation to nuclear blackmail.
Yet the article goes on to say that neither the Vice President nor
Ms. Rice mentioned that the Nation's top nuclear design experts
believed overwhelmingly that the tubes were poorly suited for the
centrifuges that would be used for nuclear warheads.
The article goes on:
Mr. Cheney, who has a history of criticizing officials who
disclose sensitive information, typically refuses to comment
when asked about secret intelligence. Yet on this day,
with a Gallup poll showing that 58 percent of Americans
did not believe President Bush had done enough to explain
why the United States should act against Iraq, Mr. Cheney
spoke openly about one of the closest held secrets
regarding Iraq. Not only did Mr. Cheney draw attention to
the tubes; he did so with a certitude that could not be
found in even the CIA's assessments. On ``Meet the
Press,'' Mr. Cheney said he knew ``for sure'' and ``in
fact'' and ``with absolute certainty'' that Mr. Hussein
was buying equipment to build a nuclear weapon. ``He has
reconstituted his nuclear program,'' Mr. Cheney said
flatly.
Ms. Rice said in a New York Times article today, referencing
yesterday's investigative report, that she was aware of the dispute in
September 2002 among the different intelligence agencies when she
stated in a television interview that the tubes ``are only really
suited for nuclear weapons programs.''
I have my own experience of being shown one of those tubes in a
briefing conducted by Ms. Rice and CIA Director George Tenet in the
White House situation room on December 23, 2002. We were told
unequivocally that the tube was intended for Iraq's reconstituted
nuclear weapons program. We were given no indication that there was
another possible purpose for that tube. We were given no indication
that there was serious disagreement among the nuclear experts in the
Federal Government about the use of those tubes. We were not given all
the facts. We were given one set of facts, the one that supported the
position of the President and the Vice President and the one they
wanted us to take when we voted on the administration's war resolution
just a few days later.
It turns out the information we were given was wrong. One and a half
years of subsequent inspections by over 1,400 U.S. weapons inspectors
has uncovered no evidence of a reconstituted Iraqi nuclear weapons
program under Saddam Hussein. Some 1,300 of those tubes were found to
be part of a short-range rocket program which did not represent a
threat to our own national security.
The nuclear threat of Iraq was President Bush and Vice President
Cheney's trump card, and they played it to the hilt. They betrayed the
trust of the Members of Congress to persuade us to vote for their war
resolution. They withheld information we should have had rightfully as
Members of this body before making that fateful decision.
We have 138,000 American troops committing their lives, risking their
lives, bleeding, fighting, some of them dying, on a daily basis, and we
are now told that the administration has any other number of plausible
explanations for why they conducted this operation. But the truth is
that for many of us, the overwhelming argument being made back in the
fall of 2002 when that war resolution was being debated was the
supposed nuclear threat of Iraq. And for us to not have been told the
truth and all the truth about the facts the administration had before
it at the time to me is shameful, disgraceful, and a fundamental
violation of the public trust.
I thank the Chair. I yield the floor.
The PRESIDING OFFICER (Mr. Fitzgerald). The Senator from Tennessee.
Mr. ALEXANDER. Mr. President, are we in morning business?
The PRESIDING OFFICER. We are not.
Mr. ALEXANDER. Mr. President, I rise to speak to an amendment that
was accepted on Friday.
The PRESIDING OFFICER. The Senator may proceed.
The Senator from Illinois.
Mr. DURBIN. Mr. President, if the Senator from Tennessee will yield
for a moment to make a unanimous consent request to follow the Senator
from Tennessee.
Mr. WARNER. Reserving the right to object, the Senator was not on the
floor. I had the floor and yielded to the managers for the purpose of
going into the cloakroom. So I think I have a
[[Page S10334]]
right to be recognized when the managers seek recognition, at which
time I want to go ahead with my amendments. May I inquire as to the
amount of time my distinguished colleagues desire?
Mr. ALEXANDER. I would like to have about 5 minutes, but it does not
need to be now.
Mr. WARNER. I am trying to be accommodating.
Mr. DURBIN. Speaking through the Chair, I am happy to follow the
Senator from Virginia if the Senator will give some indication of the
time sequence. We can propound a unanimous consent request that I
follow the Senator from Virginia after he has spoken, if he can give me
some indication of how long he will speak.
Mr. WARNER. If it is agreeable to the distinguished Senator, I will
follow him and the Senator from Illinois can follow me.
Mr. DURBIN. Will the Senator from Virginia give me a rough indication
of how long he might speak?
Mr. WARNER. I will not take an undue period. It is largely in the
hands of the managers as to their desire to probe some of the aspects
of the amendments. I hope it can be a reasonable period of time, and I
hope we will not prolong the Senator's schedule.
Mr. DURBIN. I ask unanimous consent that I follow the Senator from
Virginia, after he has spoken to his amendments, to speak in morning
business.
Mr. WARNER. I thank my colleague for his usual courtesy.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Tennessee.
Mr. ALEXANDER. Mr. President, I say to the Senator from Virginia, if
his amendments are ready to be adopted, he can offer them.
Mr. WARNER. No, they are not ready to be adopted.
Amendment No. 3807
Mr. ALEXANDER. Mr. President, I rise to speak briefly to an amendment
that was accepted on Friday. I thank the managers of the bill, the
Senator from Maine and the Senator from Connecticut, for doing this and
the Senator from Arizona, Mr. McCain, for his work in making it
possible.
This has to do with the recommendation of the 9/11 Commission that
the Federal Government set standards for the security of personal
identification documents such as drivers' licenses to prevent them from
being counterfeited and used as identification for terrorists.
As a former Governor, I have always been skeptical of Federal rules
that require States to take action that cost States money. As someone
who respects civil liberties, I have been reluctant to unnecessarily
identify Americans. In fact, as Governor, I vetoed the bill requiring a
picture on a driver's license three times because I thought it was an
unnecessary imposition on civil liberties. But times have changed. I
believe the Senator from Arizona and others did an excellent job of
implementing the 9/11 Commission's recommendation that drivers'
licenses and other personal identification documents be upgraded so we
can prevent terrorists from using them.
My one concern and the concern that the Senator from Arizona
recognized was that I do not want to see the Federal Government come up
with this good idea, pass it into law, require the States to do it, and
then send the bill to the States. We call that an unfunded Federal
mandate, and most of us in this body have said we will not do that
anymore.
Senators McCain, Collins, and Lieberman have worked out an acceptable
way, I believe, to deal with that problem. Basically, the amendment
that was adopted on Friday will give the Secretary of Transportation 18
months from the passage of the bill to work with State and local
officials to come up with a set of minimum standards for driver's
licenses. During that negotiation, States will include estimates of the
cost of implementing the proposed standards.
After this 18-month period, the rules will be made final. At that
point, we will have before us the new requirements for States for these
upgraded drivers' licenses and other personal identification documents
as well as the costs that we are imposing on the States. At that time,
it will be up to us, if we are true to our word about no more unfunded
Federal mandates, to appropriate the appropriate amount of money that
it would take Tennessee, Montana, New York, and all the other States to
pay for this new requirement that we have imposed on the States. That
will be something we can debate and discuss at that time.
The State governments will have 2 years from the issuance of the
final regulation to implement these standards, but it is our
responsibility then, if it is our good idea, if we impose it on the
States, to pay for it. I, and I am sure many others in this body, will
be here to argue strenuously that we do, and we should.
This is an excellent amendment. I am glad it was accepted on Friday.
I appreciate the work of the National Governors Association and the
Senators who were involved. This will give the States the time and
resources that States need to make the necessary changes to drivers'
licenses and other personal identification documents.
I call on my colleagues to keep this moment in mind because 18 months
to 2 years from now the bill will come due and the bill should be paid
by us, those who impose the rule, and not sent to State governments.
Sending the States the bill would be an unfunded Federal mandate, which
we have said we will not do.
The PRESIDING OFFICER. Under the previous order, the Senator from
Virginia is recognized.
Mr. WARNER. Mr. President, I thank the distinguished Presiding
Officer.
I wish to inquire of the manager, is this an appropriate time to move
forward?
Ms. COLLINS. Mr. President, I suggest that the Senator from Virginia
go ahead and present his amendments.
Amendments Nos. 3874 and 3875, en bloc
Mr. WARNER. I send to the desk two amendments which I will address.
They are companion amendments, but I felt it was necessary to do it in
two different amendments. One is 3874 and one is 3875. Copies are at
the desk, but for the convenience of the clerk I will send up
additional copies.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendments are as follows:
amendment no. 3874
(Purpose: To provide for the treatment of programs, projects, and
activities within the Joint Military Intelligence Program and Tactical
Intelligence and Related Activities programs as of the date of the
enactment of the Act)
On page 211, after line 22, add the following:
SEC. 337. RETENTION OF CURRENT PROGRAMS, PROJECTS, AND
ACTIVITIES WITHIN JOINT MILITARY INTELLIGENCE
PROGRAM AND TACTICAL INTELLIGENCE AND RELATED
ACTIVITIES PROGRAMS PENDING REVIEW.
(a) Retention Within Current Programs.--Notwithstanding any
other provision of law, all programs, projects, and
activities contained within the Joint Military Intelligence
Program and the Tactical Intelligence and Related Activities
program as of the date of the enactment of this Act shall
remain within such programs until a thorough review of such
programs is completed.
(b) Removal From Current Programs.--A program, project, or
activity referred to in subsection (a) may be removed from
the Joint Military Intelligence Program or the Tactical
Intelligence and Related Activities programs only if agreed
to by the National Intelligence Director and the Secretary of
Defense.
amendment no. 3875
(Purpose: To clarify the definition of National Intelligence Program)
On page 6, strike line 24 and all that follows through page
7, line 2, and insert the following:
(ii) includes all programs, projects, and activities of the
National Foreign Intelligence Program as of the date of the
enactment of this Act, including the Central Intelligence
Agency, the
Mr. WARNER. I have heard reference made to the fact that this bill
leaves intact the manner in which we deal with the TIARA programs and
the JMIP; that is, the Joint Military Intelligence Program. I would
like to read from page 412 of the 9/11 Commission. The Commission
states as follows:
The Defense Departments's military intelligence programs--
the joint military intelligence program (JMIP) and the
tactical intelligence and related activities program
(TIARA)--would remain part of that department's
responsibility.
My question to the distinguished managers, if they desire to reply,
is, Is it their position--and I believe they have so stated, but I wish
to give them this opportunity--that the recommendation of the
Commission that
[[Page S10335]]
they remain at the Department of Defense, is it the understanding of
Senators in their bill that is now before the Senate that that comports
with that objective?
May I read it again?
Ms. COLLINS. Yes, please do.
Mr. WARNER. Yes, I thank the Senator. Page 412 of the Commission
report:
The Defense Department's military intelligence program--the
joint military intelligence program (JMIP) and the tactical
intelligence and related activities program (TIARA)--would
remain part of that department's responsibility.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Mr. President, if I could respond through the Chair to
the inquiry of the Senator from Virginia, the bill makes very clear
that any intelligence assets that are principally for joint military
operations or for tactical intelligence stay within the Department of
Defense.
Now, there may be national intelligence assets that are now included
within the Joint Military Intelligence Program that could be
transferred to the national intelligence program. The tactical assets
are clearly just under the control of the Secretary of Defense, but
some of the JMIP assets are national, so that is why the bill is worded
as it is with the word ``principally.''
Mr. WARNER. I thank my distinguished colleague.
I would like to now go to the bill and specifically draw the
managers' attention to pages 6 and 7. The bill reads:
The term ``National Intelligence Program''--
And that is what the distinguished manager was addressing--
(A)(i) refers to all national intelligence programs,
projects, and activities of the elements of the intelligence
community; (ii) includes all programs, projects, and
activities (whether or not pertaining to national
intelligence) of the National Intelligence Authority, the
Central Intelligence Agency, the National Security Agency,
the National Geospatial-Intelligence Agency, the National
Reconnaissance Office . . .
Now, therein is the problem that the Senator from Virginia has. What
is the meaning of ``whether or not pertaining to national
intelligence''? Because the title says this is the definition of
national intelligence. (A)(i) basically gives that, and then (ii) seems
to extend the definition to include programs that are not now part of
the national intelligence program; that is, ``whether or not
pertaining.'' I find that of considerable concern.
The purpose of the amendment is to clarify that form because having
had considerable experience when I worked in the Department and the
years that I have been privileged to be on the Armed Services
Committee--and I have to be very careful as I speak because these are
so highly classified, but I will just give generally a picture of my
concern.
Right now, the JMIP literally contracts extensively with the
Geospatial-Intelligence Agency, the NGA, as it is referred to. For
example, the Department of Defense puts in the JMIP budget, through the
budgeting process, a block of money. It can then go and contract with
these several what we call combat agencies, because they have all the
assets--the technical people to do the work. So they sign the contract
for a program and that program is absolutely essential to the
functioning of, in many instances, the TIARA program, but in many
instances the JMIP. And it is essential. The JMIP cannot function
unless that particular program for which it has contracted with the NGA
is fulfilled.
As I read this amendment--let's call it program X--program X could be
transferred under the language ``whether or not pertaining to National
intelligence,'' and it goes into the NGA, and then, frankly, the NID
might make a decision that, wait a minute, we have to get a very
expensive overhead system and we have to go down into the various
budgets of the different combat agencies and scrape up some money.
So they come down and they say JMIP says they need the money, but I
think we have to prioritize. We are going to take the money and we are
going to put it toward the overhead system and it will not be used--for
example, this is one of the main functions of the National Geospatial
Agency--to make maps. As a matter of fact, when I first came to the
Senate it was the old mapping agency. Now it has been combined several
times through a number of job descriptions.
But that could be lost. Suddenly we are controverting the
recommendation of the 9/11 Commission, that everything in the TIARA and
the JMIP is going to be left untouched.
That is the problem I see. I think we have to take a good look at
this amendment because my amendment eliminates that language--that is
one of the two amendments--it eliminates it in such a way that we
redefine that paragraph 1. On page 6, the one I read from, strike so-
and-so and put this language in, that is:
The term ``National Intelligence Program''--
(ii) includes all programs, projects, and activities of the
National Foreign Intelligence Program as of the date of
enactment of this Act, including the Central Intelligence
Agency--
And then it goes on to read:
the National Security Agency, the National Geospatial. . . .
All I have done is keep in place the recommendation of the
Commission. The very words I have heard the distinguished managers say
on the floor a number of times--and I have it back in the previous
Records, in which she has represented to this body in the course of the
four or five days we have been debating that we are not touching TIARA
and we are not touching the JMIP.
There is my problem. I believe this fixes it.
Amendment No. 3874
The next amendment addresses what the distinguished managers said a
few minutes ago. There could come a time where it is the judgment of
the NID that some of these programs should no longer be under the
jurisdiction of the JMIP, and therefore my other amendment kicks in. It
reads as follows:
Removal From Current Programs. A program, project, or
activity referred to in subsection (a) may be removed from
the Joint Military Intelligence Program or the Tactical
Intelligence and Related Activities programs only if agreed
to by the National Intelligence Director and the Secretary of
Defense.
So the two of them could make adjustments in the future. But right
now, we have a number of programs in JMIP which are being performed by
the combat agencies and I think it would not be in our best interests
to dislodge those programs now. In the future, if the two heads agree,
this is the statutory authority to do it.
I feel very strongly about these amendments. So much so I will ask
for votes on them if we are not able to--I don't say that in the way of
anything other than expressing my sincerity in these amendments, but I
hope you could possibly accept them. If you cannot, I feel obligated to
ask for the yeas and nays.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Mr. President, I would point out that the amendment of
the distinguished Senator would require that the Secretary of Defense
agree to the movement of any asset from the JMIP or TIARA budget to the
National Intelligence Program budget.
I want to make sure my colleagues realize that the White House
opposes giving the Secretary of Defense a veto over what can be moved
from JMIP or TIARA to the new National Intelligence Program. I
apologize for talking in acronyms in describing this.
As you know, the tactical intelligence programs are the TIARA
programs that are run by the various services within the Department of
Defense. The JMIP is the Joint Military Intelligence Programs.
I note we have tried to strike a delicate balance in this bill. We
decided, and so I joined the Senator from Virginia, to defeat an
amendment that would have moved the NSA, the NGA, the NRO out of the
purview and daily supervision of the Secretary of Defense. We were
cognizant that the NSA and the NGA provide direct support to the
warfighter.
The underlying legislation, however, does strike a delicate balance.
We give the national intelligence director control over the budgets,
the tasking of national assets, and certain personnel authorities,
while leaving those agencies under the day-to-day supervision of the
Secretary of Defense. I think that is the right balance.
Keep in mind, when we talked to the head of the NSA, the three-star
General who runs that agency, he told us
[[Page S10336]]
that he has more contact with the CIA than he does the Secretary of
Defense; that he is providing national intelligence everyday beyond the
needs of the Pentagon. That is not in any way to lessen the important
role he is providing to our warfighters, to the combat commanders, to
the Secretary of Defense. But these are national assets. Indeed, while
I can't disclose the amounts of the budgets or the exact percentages
because they are classified, the majority of the budgets for these
agencies are already in the National Foreign Intelligence Program
budget.
I understand the point of the Senator from Virginia. As always, I am
happy to try to work with him. I know Senator Levin has some amendments
in this area that may bring further clarity. But I am concerned about
the scope of his amendments.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. Mr. President, replying to my distinguished colleague,
let's use the example of maps. They are absolutely essential to the
troops. They can't operate without maps.
The only existing entity of the Federal Government that can make maps
is the NGA. Right now, the JMIP, which is the Joint Military
Intelligence Program, is acting on behalf of all the services--the
Army, Navy, Air Force, and Marine Corps. They all desperately need
maps. They have this contract which they pay for out of this budget to
have the maps made. But the way your bill is drawn, it seems to me that
they could stop making the maps for the military because they think
that the dollars are better needed for overhead systems. There sits the
Secretary almost powerless unless he runs right up to the President and
says: Wait a minute. And you can't have him going to the President on
all of the dozens of contracts that the JMIP has with the various
contract agencies.
I ask a question. The 9/11 Commission explicitly said don't do this.
I thought I understood the manager to say: Well, we are not doing it. I
have about four or five references where on the floor the manager said
we are not touching TIARA or JMIP; those programs remain under the
budget of the Secretary of Defense.
With no intention to do other than what is right, we have a vague
situation that we cannot let remain and jeopardize the maps. It is the
clearest thing I know that is understandable by everybody in this
Chamber--the need for those maps for our soldiers, our naval personnel
on the high seas, those flying the aircraft. You cannot limit the
ability of the Secretary of Defense to adequately provide those maps.
I say to my distinguished colleague, my colleague has a statute which
puts in question the ability to control the very thing my colleague
said time and time again she was not going to touch.
Ms. COLLINS. Mr. President, first let me clarify that we did what the
9/11 Commission recommended with regard to these agencies. We did not
sever their connection to the Secretary of Defense. The Senator from
Virginia is well aware of that. He is well aware that I opposed
attempts to sever the connection with the Secretary of Defense. The
Senator from Virginia is well aware that the Secretary of Defense would
continue to have day-to-day line authority supervision over these
agencies.
The second point I make is there is nothing in this bill that would
in any way hinder the ability of the NGA to provide much needed maps
for our troops. That is just not going to happen. The satellites that
are used to produce these maps for the military are also used for
surveillance of international terrorism or compliance with
proliferation treaties. They are used to look at camps in Afghanistan.
These are national assets that are used by multiple agencies, and the
bill reflects that.
That is why the majority of the budgets for these agencies are
already part of the National Foreign Intelligence Program--what we
would rename as the National Intelligence Program. The majority of the
budget finances are already part of not JMIP, not TIARA, but what is
known as NFIP. That would not in any way hinder the ability of these
agencies to meet their obligations to the Department of Defense and to
our warfighters.
Mr. WARNER. Mr. President, in response to my colleague, I am not
touching the satellites. I agree. Everything she said is absolutely
correct. We are not touching the satellites. But we are concerned about
things such as the mundane maps which are about 80 percent used by the
tactical forces, maybe 20 percent distributed elsewhere in the
Government for other purposes. But that is the heart and soul of
tactical intelligence. It is desperately needed. You simply have to let
those moneys that the Secretary of Defense allocates by contract to the
NGA to do the maps be untouched. They cannot be seized in a sweep-up or
a reprioritization.
We just had an amendment which was rejected about the reprogramming
authority. You have extensive reprogramming authority. But time and
time again, I have heard the Senator from Connecticut say we are not
going to touch TIARA, we are not going to touch the JMIP. Yet, if I
could draw the attention of my colleague from Connecticut to page 6 of
the bill, the language is very clear. It says:
The term ``national intelligence program'' includes all
programs, projects and activities whether or not pertaining
to national intelligence.
So you are going beyond national intelligence. You are grabbing the
responsibilities of the TIARA Program and the JMIP. There is the
language.
Mr. LIEBERMAN. Mr. President, responding to my friend from Virginia,
the intention here is to give the national intelligence director
budgetary authority over the national intelligence programs. That would
not include TIARA. It might include, as has been illuminated in a
colloquy between the Senator from Virginia and the Senator from Maine,
some programs that are currently in JMIP, the Joint Military
Intelligence Program.
For the sake of reasonable organization, we wanted to take the full
budgets of those national intelligence agencies--NSA, National
Geospatial, and NRO. But what I want to say is that there is some
indication that, for instance, a substantial percentage of one of those
agency budgets is currently in JMIP. We expect that they will continue
to work for the military and its joint programs. But for the sake of
decent organization and clear lines of authority, the judgment made by
our committee was to say that all of the budgets of those three
national intelligence agencies within the national intelligence program
will go on budget under the national intelligence director and to leave
it. There is going to be some overlap on what is now JMIP. The bill
encourages the Secretary of Defense and the national intelligence
director to work out those areas of overlap.
Mr. WARNER. Mr. President, I thank my colleague. He precisely came to
my point.
Mr. LIEBERMAN. That was not my intention.
Mr. WARNER. Roughly about 30 percent of the NGA budget is derivative
of the JMIP budget. One of the pending amendments of the Senator has
this provision in it. He said the programs may be moved. My language
does that. It says: A program, project, or activity referred to in
subsection (a) may be removed from the JMIP or the tactical
intelligence but only if agreed to by the national intelligence
director and the Secretary of Defense.
So they have the concurrence of the two principals, and then move it
but leave in place now those programs such that the budgets remain
until they make a joint decision to move them.
I used the example of maps. You cannot cut off the flow of maps back
to the troops, the sailors, and the airmen. Yet those maps are made by
the NGA.
Mr. LIEBERMAN. The Senator is right. He is correct, obviously. It is
clearly not the intention of the bill to do that. The fact is the work
of the National Geospatial Agency which we are describing here that
produces image intelligence which is so critical to the military is
also, as the Senator knows, increasingly critical to the Department of
Homeland Security, even the Department of State.
Mr. WARNER. I concur.
Mr. LIEBERMAN. That is why we want to put the budget of the National
Geospatial-Intelligence Agency in the national intelligence program.
These are national intelligence assets.
Clearly, the call of the military for the services of those assets
will be a
[[Page S10337]]
priority of the agency wherever that budget authority is.
Mr. WARNER. Mr. President, I thank the Senator for that reassurance.
But the language now transfers that program, if we look at the
parenthetical on page 6, and includes all programs, projects, and
activities, whether pertaining to national intelligence or not, which
means you grabbed it all and moved it.
That may be to the advantage of our national intelligence system, our
tactical system, some date in the future, but do not do it now until we
have had some measure of experience.
The Senator from Virginia has provided for the removal of those
programs with the concurrence of the two principals. You cannot take
away from the Secretary of Defense. He is, under title 10, required to
provide for the men and women of the Armed Forces their basic needs.
Nothing is more basic than the simple maps, and 80 percent of that cost
of producing those maps comes out of JMIP.
I plead with the Senator, leave it for the moment. As we go through
the progression and implementation of this, it seems to me the NID and
Department of Defense can work it out if for some reason there is
concurrence of viewpoints. This is crippling the Secretary of Defense
in fulfilling his missions under title 10 where he is required by law,
enacted by this Senate over a period of many years, to keep those
troops supplied with what they need.
Mr. LIEBERMAN. Mr. President, of course, we do not intend nor do I
think we do in any sense cripple the Secretary of Defense. We make a
judgment that some of these programs are national intelligence
programs. They ought to be in the budget control of the national
intelligence director. We enumerate which programs--TIARA, the so-
called tactical military programs--off the table. That is with the
Secretary of Defense. That provides intelligence to single services or
some of the joint programs.
This is a difference of opinion. It is true that because we want to
give some credibility to this national intelligence director with these
national assets as he serves the entire community, including, most of
all, the President of the United States, we are recommending those
budgets of those three agencies go to the national intelligence
director. Then the negotiation begins with the Secretary of Defense.
That is a change.
I assure the Senator there is no intention in any way to contravene
or to diminish the capacity of the Secretary of Defense to fulfill his
title 10 statutory requirements. He will work it out with the national
intelligence director.
Mr. WARNER. Mr. President, if I understood my colleague, all the
TIARA and JMIP budgets are off the table. Did the Senator just say
that?
Mr. LIEBERMAN. Not quite.
Mr. WARNER. It is the ``not quite.''
Mr. LIEBERMAN. If I confused the Senator, I apologize.
Mr. WARNER. You did not confuse this old fox; he is listening. But
the others may not be able to follow these nuances.
Mr. LIEBERMAN. The TIARA budget is totally within the control of the
Secretary of Defense.
Mr. WARNER. Splendid. Leave it there.
Mr. LIEBERMAN. With the Joint Military Intelligence Program, it is
not so clear. That is where there will be, if it is part of a national
intelligence program, the budget authority will be with the national
intelligence director. But the No. 1 customer is going to be the
Department of Defense.
We are talking almost as if these are people in different
governments. They are going to work this out as they do every day.
I will read testimony from General Hayden, the head of the National
Security Agency, before the House, August 18. He says:
An empowered national intelligence director with direct
authority over the national intelligence agencies should not
be viewed as diminishing our ability or willingness to
fulfill our responsibilities as a combat support agency.
General Hayden is a very respected head of one of those agencies--
speaking, in fact, for all of them later on--saying to have a national
intelligence director with budget authority is not going to diminish
our ability or commitment to the combat support agencies.
Then he goes on to talk about how he has forward deployed hundreds of
people with our U.S. military command, and there is no way that the
creation of a national intelligence director, he says, will alter that
commitment to the military.
We are trying to create some budgetary clear lines to the national
intelligence director, not contravening the title 10 responsibilities
of the Secretary of Defense.
Mr. WARNER. Mr. President, would the Senator look at page 412 of the
9/11 Report, please.
Let me read it:
The Defense Department's military intelligence programs--
the joint military intelligence program (JMIP) and the
tactical and related activities program (TIARA)--would remain
part of that department's responsibility.
In testimony before your committee, the 9/11 Commissioners have
repeatedly stated that some portions, as the Senator said, of JMIP,
might ultimately need to be moved to the national intelligence program
but only after a thorough review.
The humble Senator from Virginia is just trying to keep the programs
in place until as that wise old Commission said, ``ultimately'' you may
review them and consider moving them.
Mr. LIEBERMAN. I respond to my friend who may be humble but is a very
distinguished, nonetheless, expert on these matters, and I appreciate
the Senator is so informed about the contents of the Commission report.
Interestingly, we communicated with the 9/11 Commission about this
particular part of our bill, and they changed their position. Their
position developed. I represent that as my best understanding, but I
urge the Senator overnight to check with the staff and members of the
Commission. I represent that they support our proposal for budgetary
authority for the national intelligence director as contained in the
bill Senator Collins and I have put before the Senate that the
Senator's amendment would alter.
Mr. WARNER. I bring to the attention of the managers something they
are already aware of, but I think it is important it be incorporated in
the debate. I draw the Senators' attention to the September 28, 2004,
Statement of Administration Policy, which is in the Record in many
places, the guidance that was sent to you and your distinguished
colleague, the chairman, Senator Collins. It says in the fourth
paragraph:
The administration opposes the Committee's attempt to
define in statute the programs that should be included in the
National Intelligence Program; the Administration believes
that further review is required. The Administration also
believes that the Committee's bill provisions relating to the
NID's role in the acquisition in major systems needs further
study.
There is a clear statement of policy by the White House on the
precise point that is in these two amendments.
I say to my colleague, if the Senator has a reply to this, I am happy
to hear it; otherwise, I ask for the yeas and nays and then I will
fight on.
Mr. LIEBERMAN. Yes, indeed. I respectfully disagree. I will share
something because we have been talking about the National Geospatial-
Intelligence Agency.
GEN James Clapper spoke before us and gave some very strong views
that support to military programs would not be compromised in any way
by creation of a strong national intelligence director with budget and
other authorities over his agency.
So this is a gentleman, a very distinguished general, who is in
charge of the exact agency we are talking about, who said to us
directly that he was confident the support of his agency to the
military would not be compromised in any way by a national intelligence
director with budget authority over his agency.
It was quite interesting. He described in some detail, as the Senator
has spoken to, the direct support the National Geospatial Agency is
giving to military operations in the nine combatant commands and
increasingly to levels far below the traditional boundaries of those
commands to their subordinate units.
In fact, as he said, national agencies--this where it is hard to draw
real hard lines--national agencies are more and more providing what
might on another occasion be called tactical support. When our
warfighters need imagery support, General Clapper said
[[Page S10338]]
they get it from the NGA employees who are often right out there with
them on the ground alongside their commanders. What struck me is he
said to us that is the way things work now in the real world, and that
nothing in the legislation we have put before the Senate, Senator
Collins and I, would change that. I think that is a very strong
statement from the head of the agency that I know the Senator is
concerned about.
Mr. WARNER. Mr. President, if I might reply, I was privileged to know
General Clapper very well. I think you will find he was not with the
NGA, but he was Director of the DIA, when he used to come before the
Armed Services Committee. He is with the NGA now.
Mr. LIEBERMAN. He is now.
Mr. WARNER. I just point out to you, I will have to go back and look
at his testimony, but I know he fully understands the need to keep
intact the Secretary of Defense's absolute authority to control those
matters which are essential to the fulfillment of his title 10
responsibilities.
I say to you most respectfully, this, in my judgment, is sufficiently
vague as to put that in jeopardy. But I have taken generously of the
time of the managers, so at this time I ask for the yeas and nays on
both amendments that are pending.
The PRESIDING OFFICER. Is there an objection to it being in order to
order the yeas and nays with one show of hands?
Mr. WARNER. Mr. President, I will do it singularly if there is a
technical problem. Why don't I do it singularly. First I ask for the
yeas and nays on amendment No. 3875.
The PRESIDING OFFICER. The Senator has the right to seek the yeas and
nays on amendment No. 3874, which is the currently pending amendment.
Mr. WARNER. I thank the Presiding Officer. I ask for the yeas and
nays on amendment No. 3874.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mr. WARNER. Fine. Mr. President, I ask unanimous consent that the
amendment be laid aside.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WARNER. Mr. President, I call up amendment No. 3875 and ask for
the yeas and nays on the amendment.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mr. WARNER. I thank the Presiding Officer and thank the managers of
the bill.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. Mr. President, I ask unanimous consent that the managers
will allow the setting aside of the pending amendments and allow me to
call up three amendments that are at the desk that Senator Leahy has
asked me to offer on his behalf.
Ms. COLLINS. Reserving the right to object, I am unaware of what
these three amendments are. We have a lot of requests for other
amendments to be brought up. I wonder if the Senator would withhold so
that I could talk with him about what the three amendments are. Senator
Durbin was actually next in line.
Mr. REID. Well, that is fine. But I thought we were going to allow
amendments to be offered. If we are going to pick and choose what
amendments are going to be offered, I will object to all of them,
because Senator Leahy has the right to offer his amendments if anybody
else does. I will be happy to withhold for a short time. I withdraw my
request.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. Mr. President, it is my understanding I have a unanimous
consent agreement to speak next as in morning business, but since the
chairman of this committee and ranking member have been on the floor
all day on this bill, I would withhold my opportunity to speak if they
have any pending business on this bill that they want to take care of
at this point.
I say to the Senators, I know you want to stay for my speech, but I
am sure you would like to take care of the bill before us and pending
amendments, and I do not want to stand in your way.
So at this point, Mr. President, if I can speak through you and ask
the chairman of the committee if she has any pending business at this
point related directly to the bill. If the Senator from Maine could
inform me.
Ms. COLLINS. Mr. President, I do not yet know the answer to the
question raised by the Senator from Illinois. It is very thoughtful of
him. I offer to withhold. I was going to debate a little bit further
with Senator Warner, but perhaps we have covered that to death and
should wait until tomorrow to conclude our comments.
I ask through the Chair, could the Senator tell me how long he wishes
to speak?
Mr. DURBIN. In the neighborhood of 15 to 20 minutes.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. REID. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. Mr. President, during the time in the quorum, we have been
able to speak with the managers of the bill. I now ask unanimous
consent that the pending amendments be set aside.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendments Nos. 3913, 3915, and 3916 En Bloc
Mr. REID. Mr. President, I call up en bloc amendments Nos. 3913,
3915, and 3916 on behalf of Senator Leahy.
The PRESIDING OFFICER. The amendments are considered pending.
The amendments are as follows:
amendment no. 3913
(Purpose: To address enforcement of certain subpoenas)
On page 159, strike lines 19 through 25 and insert the
following:
``(2) Enforcement of subpoena.--In the case of contumacy or
failure to obey a subpoena issued under paragraph (1)(D),
either the Board or the Attorney General of the United States
may seek an order to require such person to produce the
evidence required by such subpoena from the United States
district court for the judicial district in which the
subpoenaed person resides, is served, or may be found.''.
amendment no. 3915
(Purpose: To establish criteria for placing individuals on the
consolidated screening watch list of the Terrorist Screening Center,
and for other purposes)
At the appropriate place, insert the following:
SEC. __. TERRORIST SCREENING CENTER.
(a) Criteria for Watch List.--The Secretary of Homeland
Security shall report to Congress the criteria for placing
individuals on the Terrorist Screening Center consolidated
screening watch list, including minimum standards for
reliability and accuracy of identifying information, the
certainty and level of threat that the individual poses, and
the consequences that apply to the person if located. To the
greatest extent consistent with the protection of classified
information and applicable law, the report shall be in
unclassified form and available to the public, with a
classified annex where necessary.
(b) Safeguards Against Erroneous Listings.--The Secretary
of Homeland Security shall establish a process for
individuals to challenge ``Automatic Selectee'' or ``No Fly''
designations on the consolidated screening watch list and
have their names removed from such lists, if erroneously
present.
(c) Report.--Not later than 180 days after the date of
enactment of this Act, the Privacy and Civil Liberties
Oversight Board shall submit a report assessing the impact of
the ``No Fly'' and ``Automatic Selectee'' lists on privacy
and civil liberties to the Committee on the Judiciary, the
Committee on Governmental Affairs, and the Committee on
Commerce, Science and Transportation of the Senate, and the
Committee on the Judiciary, the Committee on Government
Reform, and the Committee on Transportation and
Infrastructure of the House of Representatives. The report
shall include any recommendations for practices, procedures,
regulations, or legislation to eliminate or minimize adverse
effects of such lists on privacy, discrimination, due process
and other civil liberties, as well as the implications of
applying those lists to other modes of transportation. The
Comptroller General of the United States shall cooperate with
the Privacy and Civil Liberties Board in the preparation of
the report. To the greatest extent consistent with the
protection of classified information and applicable law, the
report shall be in unclassified form and available to the
public, with a classified annex where necessary.
(d) Effective Date.--Notwithstanding section 341 or any
other provision of this Act, this section shall become
effective on the date of enactment of this Act.
[[Page S10339]]
amendment no. 3916
(Purpose: To strengthen civil liberties protections, and for other
purposes)
On page 132, line 23, strike ``and''.
On page 133, line 3, strike the period and insert ``;
and''.
On page 133, between lines 3 and 4, insert the following:
(L) utilizing privacy-enhancing technologies that minimize
the dissemination and disclosure of personally identifiable
information.
On page 153, between lines 2 and 3, insert the following:
(o) Limitation on Funds.--Notwithstanding any other
provision of this section, none of the funds provided
pursuant to subsection (n) may be obligated for deployment or
implementation of the Network under subsection (f) unless--
(1) the guidelines and requirements under subsection (e)
are submitted to Congress; and
(2) the Privacy and Civil Liberties Oversight Board submits
to Congress an assessment of whether those guidelines and
requirements incorporate the necessary architectural,
operational, technological, and procedural safeguards to
protect privacy and civil liberties.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. Mr. President, it is my understanding that, pursuant to
the unanimous consent agreement, I am to be recognized to speak in
morning business.
The PRESIDING OFFICER. The Senator is correct.
War in Iraq
Mr. DURBIN. Mr. President, I understand that an article printed in
the New York Times yesterday, October 3, relative to the war in Iraq
and the intelligence leading up to it, was printed in the Record
earlier today in Senator Byrd's remarks.
Mr. President, it was about 2 years ago that we faced a critical
decision on the floor of the Senate. It was a vote that most Members of
the Senate, certainly Members of the House, will never forget. It is
rare in your legislative career that you are asked to vote to go to
war, and that is exactly what occurred in this Chamber in October of
2002. It has happened two or three times in my congressional career.
Each time it has been a matter of grave concern. Each Member of the
Senate and the House want to make certain that they use their best
judgment, that they get it right. Because if we embark on a war, it
goes without saying that some of the bravest and best Americans we
serve are going to risk their lives and some will lose their lives.
That was what faced us in October of 2002.
The final vote was 77 Members in favor of the use of force resolution
to go to war in Iraq and 23 in opposition. Of the 23 Senators voting in
opposition--1 Republican, Senator Chafee of Rhode Island--22 were
Democrats. I was included in that number of 22 Democrats.
I remember the vote. It was late at night. When we finally adjourned
and left, each of us felt a heavy weight on our shoulders. We knew that
decision in this room by 100 Americans would lead to a war and others
would die, many others would be injured as a result. Each Member of the
Senate, I am certain, tried to make the right choice and the right
decision based on the information they had and their conscience.
Now today, some 2 years later, we step back from that moment and
reflect on it, because it was a critical moment in the history of our
democracy.
When we vote to go to war, a war in this case which President Bush
asked us to support, we have to do it based on facts and evidence given
to us. It is rare that any one of us has any personal knowledge of the
circumstances that lead up to the possibility of war. We rely on people
who serve our Government--our military leaders, our intelligence
experts, people in the field of diplomacy. We ask them to give us
information so we can make the right decision, and that is the position
we found ourselves in in October of 2002.
Today we reflect on the information given to the Congress and the
American people before this historic and momentous decision to go to
war in Iraq. As we view this information, we cannot help but believe
that we were deceived. We were misled. We were given the wrong
information before that invasion. Many of the things said to us on the
floor of the Senate, much of the information given to us by the
administration that led to that decision to go to war in Iraq today, 2
years later, we know was wrong. It was just wrong.
Think back about that debate and what led up to it. In the few short
weeks when it became abundantly clear that we would face that decision,
we had heard about Iraq for years. We remembered their invasion of
Kuwait, the Persian Gulf War where, under General Schwarzkopf, our Army
liberated the people of Kuwait, driving the Iraqis back into their
homeland.
We knew who Saddam Hussein was. We knew the kind of thug, brutal
dictator that he had been in his own country. We remembered that
wasting war that he had with Iran where thousands of innocent people
were killed. We knew exactly what we were dealing with in Saddam
Hussein. He was not a new character for me in my congressional career,
nor for most Americans.
But prior to the invasion of Iraq we were told that it had more to do
with other issues. It wasn't just the fact that he was an evil
dictator; it was the fact that he was a threat to the people of his own
nation, to the region, and to the United States. That is what we heard
from the Bush administration in support of the invasion of Iraq.
You will remember the debate very well. How often we heard from the
President and others that Saddam Hussein had weapons of mass
destruction that would be used to harm America, that he had unmanned
aerial vehicles which he could launch against other nations in the
Middle East, against Israel, even against the United States.
We were told that he was somehow linked with al-Qaida and Osama bin
Laden, the perpetrators of the disgraceful and barbaric acts of
September 11, 2001. Those were the facts given to us.
We know in those cases and in so many others that those facts were
wrong--just plain wrong. The American people were misled. They were
told there was a threat against this country that did not exist. The
question which faces us today and one which goes to the heart of our
democracy is whether the people who made those statements knew they
were misleading the American people.
That is a very serious charge. It may be the most serious charge in a
democracy--that any leader in Congress or in the executive branch of
the Government deliberately misled the American people into believing
there was a threat, into believing that a war was necessary, and into
making a decision that was based on wrong information. That debate has
raged ever since.
When we invaded Iraq and found no weapons of mass destruction, when
we found no evidence of these chemical and biological stockpiles, these
arsenals of weapons, poised and ready to strike us, the American people
and many Members of Congress had to stop and think: if that key element
in the war against Iraq was wrong, if we were misled about that fact,
what other facts were we misled about?
This New York Times article, which has been put into the Record for
all to read, addresses one particular element. Most everyone who
remembers that debate--I remember so many parts of it--will recall how
much time we spent asking ourselves whether Iraq was in a position
where it had nuclear weapons or the capacity to build them. Time and
again, this debate focused on one piece of tangible evidence: aluminum
tubes, aluminum tubes which might or could have been used in the
production of nuclear weapons.
You will remember the references to them. They were made by virtually
every member of the Bush administration--the President, the Vice
President, the Secretary of Defense, the Secretary of State, the
Director of the Central Intelligence Agency. Each one of them made some
reference to these aluminum tubes and the fact that they were proof-
positive evidence of the nuclear weapons that could threaten us from
Iraq. This New York Times piece has taken the time to go through the
history of these aluminum tubes. What they have found is indeed
troubling. What they found is abundantly clear, that the administration
deliberately disregarded the facts and findings of the Department of
Energy and other key intelligence agencies and, as a result, misled the
American people about Iraq's nuclear program--the single most important
justification for the war.
Now, a President--any President--must always take whatever actions
are
[[Page S10340]]
necessary to protect America. But the true test of leadership is
telling the truth to the American people about the world, tell them of
our threats based on reality, based on truth, based on facts. That is
the hard work of the Presidency.
In this case, the President did not do that. In his State of the
Union Address, and in many other statements, we were told things that
were, frankly, not true. Even today, after we have investigated Iraq,
after we have sent thousands of inspectors to look for the evidence
that we were told would be there, after we have come up empty-handed
for a year and a half, even today, when National Security Adviser
Condoleezza Rice was asked on public television whether she would
concede that the statements of the administration misled the American
public, she would not do so.
I say this: If Dr. Condoleezza Rice knows of any credible evidence to
support the argument that Iraq was using those aluminum tubes to build
nuclear weapons, she owes it to the American people and to her
President to step forward and say so. The New York Times, in its
lengthy investigation, produced evidence to the contrary. Yet Dr. Rice
refuses to even acknowledge it.
We should never give any country veto power over America's security.
But we have to be honest with the American people about what we need to
be safe. This New York Times article details how the administration
spoke with such great certainty to the American people about Saddam's
nuclear program, at a time when they knew privately that the evidence
was highly questionable. In fact, this article shows that top members
of the administration repeatedly made statements that any fair analysis
of the facts on our intelligence would have informed them were wrong.
Specifically, in September of 2002, before the vote to go to war,
Vice President Cheney said the United States had ``irrefutable
evidence'' of Iraq's nuclear program, based on Iraq's possession of
thousands of tubes made of high-strength aluminum. In September 2002--
the same month--Condoleezza Rice said: ``We do know that he [Saddam
Hussein] is actively pursuing a nuclear weapon.'' She went on to say
that it was based on the aluminum tubes that were ``only suited for a
nuclear weapons program.'' She said, ``We don't want the smoking gun to
be a mushroom cloud.''
Can you think of a more provocative statement from the National
Security Adviser to the President about the threat of Iraq to the
United States, that we might face a mushroom cloud; that we, in fact,
would be the victims of a nuclear attack because Saddam Hussein had
these weapons? Those were the words of Dr. Rice. Those were words that
we know now were not backed up with facts and evidence.
In October 2002, President Bush said in Cincinnati:
Iraq has attempted to purchase high-strength aluminum tubes
and other equipment needed for gas centrifuges, used to
enrich uranium for nuclear weapons.
In fact, by the time the President made that statement, this
administration was clearly divided from within as to whether that
statement was true. I know because I sit on the Intelligence Committee.
I know because I sat through days of hearings, where representatives of
the Department of Energy and the Central Intelligence Agency clearly
disagreed about whether those tubes were proof positive of Saddam
Hussein's nuclear weaponry program.
Let's concede the obvious. There was a time when Saddam Hussein was
building nuclear weapons back in the early 1990s. We were right to be
vigilant and to find out whether he had renewed that program and it was
a threat to the region and the United States. The only thing we could
find was some evidence that Iraq had purchased these aluminum tubes
from Hong Kong. And then we were fortunate to be able to intercept a
shipment of these tubes in Jordan and to take a close look at them.
There was a fellow in the Central Intelligence Agency, working for
that agency, an analyst, who was building the case that these tubes
were proof positive that Saddam Hussein was back in the business of
nuclear weapons.
The Senate Intelligence Committee that I serve on took a look at his
analysis. Their conclusion was troubling because they concluded that
his facts were wrong, his conclusions were wrong; that he was involved
in group-think, in their words, and a holy war within this
administration to prove that these tubes were related to nuclear
weapons.
They wanted to prove--the CIA did--through this analyst that these
tubes were part of a secret high-risk venture to build a nuclear bomb.
But they kept running into a problem: Within the same Bush
administration, the Department of Energy disputed their conclusions. I
heard those arguments, most of America did not. One of the reasons I
voted against the use of force resolution was, in my mind, it clearly
was not established that Saddam Hussein had nuclear weapons which he
would use against the United States.
In June 2001, we seized a shipment of these aluminum tubes. We sent
our very best expert to investigate whether they could be used for
nuclear weapons, and those who looked at them came back and said,
first, in size and materials--this is August of 2001--the tubes were
very different from those Iraq had used in centrifuge prototypes
before. In fact, the team could find no centrifuge machines deployed in
a functioning environment that used such narrow tubes. They believed
that the conclusion was unlikely that these tubes were going to be
used.
In the months after September 11, 2001, the Bush administration
devised a strategy to fight al-Qaida. Vice President Cheney became
deeply involved in reviewing the intelligence evidence. He became a
self-appointed examiner of the worst case scenarios involving Iraq. He
had the background. He had been Chief of Staff of President Ford and
Secretary of Defense for first President Bush. He knew all the
intelligence agencies and what they did.
So he was not simply passing when it came to this whole question. He
read of an allegation that Iraq was importing yellow cake uranium
concentrate from Niger in Africa. He went on to conclude in a statement
made on CNN that based on what he had read, Vice President Cheney said
Saddam Hussein is actively pursuing nuclear weapons at this time. But,
in fact, there was a debate raging within this administration as to
whether that was true.
Over and over the reports from the CIA were disputed by other
agencies. The tubes just did not have the necessary thickness to be
part of a nuclear weapons program. So we find ourselves in a situation
where statements were being made by the Vice President and by others
which could not be verified based on the facts within the same
administration.
The Senate Intelligence Committee issued a 511-page report on this
effort, and they concluded that the CIA analyst involved was so
determined to prove his theory on this aluminum tube that he twisted
test results, ignored factual discrepancies, and ignored dissenting
views.
We know how this ended. It ended with the American people and many
Members of Congress convinced that these aluminum tubes were being used
for nuclear weapons. For some Members of the Senate, there was no
choice; they had to use this evidence to build a case to go to war in
Iraq. Statements were made by Vice President Cheney on August 26, 2002,
at the VFW convention in Nashville. Despite the dispute going on within
his own administration, the Vice President said:
The case of Saddam Hussein, a sworn enemy of our country,
requires candid appraisal of the facts.
Mr. Cheney went on to say:
We now know--
And this is August of 2002--
We now know Saddam has resumed his efforts to acquire
nuclear weapons.
On the thinnest evidence, on the disputed aluminum tubes, Vice
President Cheney made the strongest possible case he could make that
the nuclear weapons program in Iraq was underway. He conjured these
images of an Iraq of nuclear weapons and the threat they posed to the
world while members of his own administration disputed his conclusions.
Again, President Bush, Mr. Tenet, and others made these cases over
and over again about the aluminum tubes. Mr. Cheney went on ``Meet the
Press'' on September 8, 2002, and confirmed when asked that the tubes
were the
[[Page S10341]]
most alarming evidence behind the administration's view that Iraq had
resumed its nuclear weapons programs. He said the tubes had ``raised
our level of concern.''
The same day, Dr. Rice went on CNN and said that the aluminum tubes
``are only really suited for nuclear weapons programs.'' She made that
statement at a time when the President's own Department of Energy had
reached an opposite conclusion. She said these tubes ``are only really
suited for nuclear weapons programs'' when, in fact, that was not the
case.
What we have learned here in the course of this investigation, what
we have learned from all of the investigations that followed after our
invasion of Iraq, what we have learned now that the 9/11 Commission,
the bipartisan Commission, has had a chance to look closely at the
evidence is that in this case and in so many others, we were misled.
The American people were given wrong information and bad information
about the situation in Iraq. It was not just flawed intelligence; it
was not just a failure of the intelligence agencies; it was a failure
of the leaders in the Bush administration to honestly portray the
facts, to tell the American people that there was suspicion of a
nuclear weapons program but an honest dispute as to whether it existed.
Why didn't they portray it that way? Because we would never have gone
to war if they had told us that fact, if they had given us the evidence
straight, if they had told us about disputes within this administration
which were unresolved.
There was a debate last Thursday night between the two leading
candidates, the President and Senator Kerry, about foreign policy and
about Iraq. Time and again, President Bush said that his was a
difficult job, and I do not dispute that for a moment. He talked about
all the hard work that was necessary to protect America, and I do not
doubt there is hard work. But I will tell you this: part of that hard
work has to include taking an honest look at the evidence given to you
as the Commander in Chief, being willing to say that if there is a
dispute about evidence so basic as these aluminum tubes and the nuclear
weapon program of Iraq, that no President should step forward and
mislead the American people.
That dispute was ongoing within the Bush administration, and yet
clear statements were made by the President, the Vice President, and
leading members of the Cabinet that a nuclear weapons program existed
when, in fact, it did not.
I hope my colleagues and others will review this evidence, understand
the challenges we face, and I hope they will also come to the same
conclusion that I have, and that is that whatever we face in terms of
threats in the future, whoever that President might be, I am certain he
will be committed to the security of America, but he also must be
committed to the values of America--the values of honesty, openness,
and candor, even when the facts do not support original conclusions.
In some cases, Senator Kerry has been criticized because he changed
his position. In this case, the Bush administration took a position on
nuclear weapons in Iraq that was wrong, that history and the evidence
has proven was wrong. They refused to acknowledge the facts and
evidence that came out to dispute it. They stuck with their story even
when it was wrong, and now today we have serious questions as to the
reasoning and the case made before our invasion of Iraq.
Mr. President, I yield the floor in morning business. I would like to
ask the Presiding Officer--I do not see either the chairman of the
Governmental Affairs Committee or the ranking member in the Chamber. I
have a pending amendment to the bill. I am not going to even suggest to
offer it since the chairman is not on the Senate floor, but I will at
some later time.
I yield the floor.
The PRESIDING OFFICER. The Senator from Alabama.
Mr. SESSIONS. Mr. President, the Senator from Illinois is very
eloquent in the position he takes, and he argues pretty aggressively in
this political season one point of view on the question of nuclear
weaponry and how the Senate was briefed.
He said one thing that is true. I was not a member of the
Intelligence Committee, but as a Senator, we received repeated
briefings on the weapons of mass destruction issue, and in the
briefings we received, all Members of the Senate, and that includes the
Democratic nominee for the Presidency, a Member of this body, Senator
Kerry, the issue of what those tubes were for was discussed and both
sides of it were presented. It was left to the Senators, I guess, to
decide how they would call the question.
I felt as if the weight of the evidence indicated to me that Saddam
Hussein was doing what he had done before, that this was just one of
the weapons of mass destruction he was desirous of having, he was
desirous of possessing and that he wanted to use to threaten his
neighbors, his own people, and to improve his threat standing in the
neighborhood in which his country existed. In other words, he was
clearly desirous of that, else why would he not agree to a full
inspection to prove what he did with the remains of his nuclear program
that we know he had previously? Else why would he not show what he had
done with the chemical weapons we know he used against his own people?
And we all heard those briefings.
I know the Presiding Officer was there in those briefings. We heard
them, and we knew the issues involved. We debated it on the floor of
this Senate for months and months and we discussed all those issues and
we had to make a decision about whether or not to allow Saddam Hussein
to remain in violation of 16 U.N. resolutions.
We said we could not continue in this way. They fired at airplanes on
a regular basis as they enforced the U.N. no-fly zone over Iraq, and we
voted on it.
After having all of those issues discussed, after having received the
intelligence with both sides of this question discussed before the
Senators, Senator Kerry, as referred to by the Senator from Illinois--
he referred to him in his campaign--voted to allow the President to
make one final effort with Saddam Hussein and authorized him to
commence hostilities if that did not succeed.
Those last discussions did not succeed and we made one more effort.
They did not succeed and we went to war as every Member of this body
knew when we cast that vote. This body was not misled and Senator
Durbin was not misled because he heard the same briefings as he has
told us, and neither was Senator Kerry when he cast his vote in favor
of allowing this war to proceed.
I think it is critical for leadership in America that if an American
makes a commitment and a decision on an issue as important as that to
keep the commitment and not flip-flop on it next week, not change their
mind next week and go back and try to find some excuse to blame the
President who is leading troops in the field and make complaints on the
floor of this Senate and in press conferences, statements which make it
more difficult for us to be successful.
We know what the challenge is, and we as a nation have made a
commitment. This Senate, by a three-fourths plus vote, voted to allow
this war to begin. We knew it was going to happen if Saddam Hussein did
not back down and admit what he was doing and allow inspectors to come
in and demonstrate clearly that he did not have these weapons of mass
destruction. We received intensive briefings on that subject. We cast
our votes and God gave us the ability to make a clear decision. We
ought to stand by that decision, and we are going to stand by it.
There are some who want to cut and run, bob and weave, flip and flop,
but the American people will not and this Senate is not. We are going
to stand firm and we are going to be successful in Iraq because it is
the right thing to do.
Those people have suffered greatly but progress has been made and
will continue to be made. We are going to train the military, get them
up to speed, and get them equipped. As we have seen in Samara when that
happens and they work with the American military, progress, success can
and will occur. This is a longrun solution.
We have had so much success in Afghanistan where it is so wonderful
to see over 10 million people registered to vote there, and 40 percent
of them are women. To say that we cannot make progress in this area of
the world is a mistake.
[[Page S10342]]
Yes, it is tough. Yes, it is difficult. Yes, a significant but small
number want to disrupt everything that has gone on and to make sure
that democracy cannot take hold and a good and decent government will
not be established to allow the Iraqi people to use their capabilities
and work ethic to allow them to be successful, which is important for
us. I just would make that response.
I see Senator Collins is in the Chamber. I was going to make a
statement on a separate issue, but if the Senator needs the floor for
matters important to the bill, I would be glad to yield.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Mr. President, I thank the Senator from Alabama. I do
have two brief matters to deal with and then I would be glad to figure
out where our order is.
I ask unanimous consent that the Senator from Arizona, Mr. McCain, be
added as a cosponsor to the underlying bill, S. 2845.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. COLLINS. Mr. President, I ask unanimous consent that the pending
amendments be set aside so I may call up two amendments on behalf of
the majority leader.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendments Nos. 3895, As Modified, and 3896, En Bloc
Ms. COLLINS. Mr. President, I call up amendments Nos. 3895 and 3896,
and further I send a modification to No. 3895 to the desk.
The PRESIDING OFFICER. Without objection, it is so ordered. The
amendment is modified. Both amendments will now be pending.
The amendments are as follows:
amendment no. 3985
On page 94, strike line 5 and insert the following:
SEC. 144. NATIONAL COUNTERPROLIFERATION CENTER.
(a) National Counterproliferation Center.--(1) Not later
than one year after enactment of this Act there shall be
established within the National Intelligence Authority a
National Counterproliferation Center.
(2) The purpose of the Center is to develop, direct, and
coordinate the efforts and activities of the United States
Government to deter, prevent, halt, and rollback the pursuit,
acquisition, development, and trafficking of weapons of mass
destruction, related materials and technologies, and their
delivery systems to terrorists, terrorist organizations,
other non-state actors of concern, and state actors of
concern.
(b) Director of National Counterproliferation Center.--(1)
There is a Director of the National Counterproliferation
Center, who shall be the head of the National
Counterproliferation Center, and who shall be appointed by
the President, by and with the advice and consent of the
Senate.
(2) Any individual nominated for appointment as the
Director of the National Counterproliferation Center shall
have significant expertise in matters relating to the
national security of the United States and matters relating
to the proliferation of weapons of mass destruction, their
delivery systems, and related materials and technologies that
threaten the national security of the United States, its
interests, and allies.
(3) The individual serving as the Director of the National
Counterproliferation Center may not, while so serving, serve
in any capacity in any other element of the intelligence
community, except to the extent that the individual serving
as Director of the National Counterproliferation Center is
doing so in an acting capacity.
(c) Supervision.--(1) The Director of the National
Counterproliferation Center shall report to the National
Intelligence Director on the budget, personnel, activities,
and programs of the National Counterproliferation Center.
(2) The Director of the National Counterproliferation
Center shall report to the National Intelligence Director on
the activities of the Directorate of Intelligence of the
National Counterproliferation Center under subsection (g).
(3) The Director of the National Counterproliferation
Center shall report to the President and the National
Intelligence Director on the planning and progress of
counterproliferation programs, operations, and activities.
(d) Primary Missions.--The primary missions of the National
Counterproliferation Center shall be as follows:
(1) To develop and unify strategy for the
counterproliferation efforts (including law enforcement,
economic, diplomatic, intelligence, and military efforts) of
the United States Government.
(2) To make recommendations to the National Intelligence
Director with regard to the collection and analysis
requirements and priorities of the National
Counterproliferation Center.
(3) To integrate counterproliferation intelligence
activities of the United States Government, both inside and
outside the United States, and with other governments.
(4) To develop multilateral and United States Government
counterproliferation plans, which plans shall--
(A) involve more than one department, agency, or element of
the executive branch (unless otherwise directed by the
President) of the United States Government; and
(B) include the mission, objectives to be achieved, courses
of action, parameters for such courses of action,
coordination of agency operational activities,
recommendations for operational plans, and assignment of
national, departmental, or agency responsibilities.
(5) To ensure that the collection, analysis, and
utilization of counterproliferation intelligence, and the
conduct of counterproliferation operations, by the United
States Government are informed by the analysis of all-source
intelligence.
(e) Duties and Responsibilities of Director of National
Counterproliferation Center.--Notwithstanding any other
provision of law, at the direction of the President, the
National Security Council, and the National Intelligence
Director, the Director of the National Counterproliferation
Center shall--
(1) serve as the principal adviser to the President and the
National Intelligence Director on intelligence and operations
relating to counterproliferation;
(2) provide unified strategic direction for the
counterproliferation efforts of the United States Government
and for the effective integration and deconfliction of
counterproliferation intelligence collection, analysis, and
operations across agency boundaries, both inside and outside
the United States, and with foreign governments;
(3) advise the President and the National Intelligence
Director on the extent to which the counterproliferation
program recommendations and budget proposals of the
departments, agencies, and elements of the United States
Government conform to the policies and priorities established
by the President and the National Security Council;
(4) in accordance with subsection (f), concur in, or advise
the President on, the selections of personnel to head the
nonmilitary operating entities of the United States
Government with principal missions relating to
counterproliferation;
(5) serve as the principal representative of the United
States Government to multilateral and bilateral
organizations, forums, events, and activities related to
counterproliferation;
(6) advise the President and the National Intelligence
Director on the science and technology research and
development requirements and priorities of the
counterproliferation programs and activities of the United
States Government; and
(7) perform such other duties as the National Intelligence
Director may prescribe or are prescribed by law;
(f) Role of Director of National Counterproliferation
Center in Certain Appointments.--(1) In the event of a
vacancy in the most senior position of such nonmilitary
operating entities of the United States Government having
principal missions relating to counterproliferation as the
President may designate, the head of the department or agency
having jurisdiction over the position shall obtain the
concurrence of the Director of the National
Counterproliferation Center before appointing an individual
to fill the vacancy or recommending to the President an
individual for nomination to fill the vacancy. If the
Director does not concur in the recommendation, the head of
the department or agency concerned may fill the vacancy or
make the recommendation to the President (as the case may be)
without the concurrence of the Director, but shall notify the
President that the Director does not concur in the
appointment or recommendation (as the case may be).
(2) The President shall notify Congress of the designation
of an operating entity of the United States Government under
paragraph (1) not later than 30 days after the date of such
designation.
(g) Directorate of Intelligence.--(1) The Director of the
National Counterproliferation Center shall establish and
maintain within the National Counterproliferation Center a
Directorate of Intelligence.
(2) The Directorate shall have primary responsibility
within the United States Government for the collection and
analysis of information regarding proliferators (including
individuals, entities, organizations, companies, and states)
and their networks, from all sources of intelligence, whether
collected inside or outside the United States, or by foreign
governments.
(3) The Directorate shall--
(A) be the principal repository within the United States
Government for all-source information on suspected
proliferators, their networks, their activities, and their
capabilities;
(B) propose intelligence collection and analysis
requirements and priorities for action by elements of the
intelligence community inside and outside the United States,
and by friendly foreign governments;
(C) have primary responsibility within the United States
Government for net assessments and warnings about weapons of
mass destruction proliferation threats, which assessments and
warnings shall be based on a comparison of the intentions and
capabilities of proliferators with assessed national
vulnerabilities and countermeasures;
[[Page S10343]]
(D) conduct through a separate, independent office
independent analyses (commonly referred to as ``red
teaming'') of intelligence collected and analyzed with
respect to proliferation; and
(E) perform such other duties and functions as the Director
of the National Counterproliferation Center may prescribe.
(h) Directorate of Planning.--(1) The Director of the
National Counterproliferation Center shall establish and
maintain within the National Counterproliferation Center a
Directorate of Planning.
(2) The Directorate shall have primary responsibility for
developing counterproliferation plans, as described in
subsection (d)(3).
(3) The Directorate shall--
(A) provide guidance, and develop strategy and interagency
plans, to counter proliferation activities based on policy
objectives and priorities established by the National
Security Council;
(B) develop plans under subparagraph (A) utilizing input
from personnel in other departments, agencies, and elements
of the United States Government who have expertise in the
priorities, functions, assets, programs, capabilities, and
operations of such departments, agencies, and elements with
respect to counterproliferation;
(C) assign responsibilities for counterproliferation
operations to the departments and agencies of the United
States Government (including the Department of Defense, the
Department of State, the Central Intelligence Agency, the
Federal Bureau of Investigation, the Department of Homeland
Security, and other departments and agencies of the United
States Government), consistent with the authorities of such
departments and agencies;
(D) monitor the implementation of operations assigned under
subparagraph (C) and update interagency plans for such
operations as necessary;
(E) report to the President and the National Intelligence
Director on the performance of the departments, agencies, and
elements of the United States with the plans developed under
subparagraph (A); and
(F) perform such other duties and functions as the Director
of the National Counterproliferation Center may prescribe.
(4) The Directorate may not direct the execution of
operations assigned under paragraph (3).
(i) Staff.--(1) The National Intelligence Director may
appoint deputy directors of the National Counterproliferation
Center to oversee such portions of the operations of the
Center as the National Intelligence Director considers
appropriate.
(2) To assist the Director of the National
Counterproliferation Center in fulfilling the duties and
responsibilities of the Director of the National
Counterproliferation Center under this section, the National
Intelligence Director shall employ in the National
Counterproliferation Center a professional staff having an
expertise in matters relating to such duties and
responsibilities.
(3) In providing for a professional staff for the National
Counterproliferation Center under paragraph (2), the National
Intelligence Director may establish as positions in the
excepted service such positions in the Center as the National
Intelligence Director considers appropriate.
(4) The National Intelligence Director shall ensure that
the analytical staff of the National Counterproliferation
Center is comprised primarily of experts from elements in the
intelligence community and from such other personnel in the
United States Government as the National Intelligence
Director considers appropriate.
(5)(A) In order to meet the requirements in paragraph (4),
the National Intelligence Director shall, from time to time--
(i) specify the transfers, assignments, and details of
personnel funded within the National Intelligence Program to
the National Counterproliferation Center from any other non-
Department of Defense element of the intelligence community
that the National Intelligence Director considers
appropriate; and
(ii) in the case of personnel from a department, agency, or
element of the United States Government and not funded within
the National Intelligence Program, request the transfer,
assignment, or detail of such personnel from the department,
agency, or other element concerned.
(B)(i) The head of an element of the intelligence community
shall promptly effect any transfer, assignment, or detail of
personnel specified by the National Intelligence Director
under subparagraph (A)(i).
(ii) The head of a department, agency, or element of the
United States Government receiving a request for transfer,
assignment, or detail of personnel under subparagraph (A)(ii)
shall, to the extent practicable, approve the request.
(6) Personnel employed in or assigned or detailed to the
National Counterproliferation Center under this subsection
shall be under the authority, direction, and control of the
Director of the National Counterproliferation Center on all
matters for which the Center has been assigned responsibility
and for all matters related to the accomplishment of the
missions of the Center.
(7) Performance evaluations of personnel assigned or
detailed to the National Counterproliferation Center under
this subsection shall be undertaken by the supervisors of
such personnel at the Center.
(8) The supervisors of the staff of the National
Counterproliferation Center may, with the approval of the
National Intelligence Director, reward the staff of the
Center for meritorious performance by the provision of such
performance awards as the National Intelligence Director
shall prescribe.
(9) The National Intelligence Director may delegate to the
Director of the National Counterproliferation Center any
responsibility, power, or authority of the National
Intelligence Director under paragraphs (1) through (8).
(10) The National Intelligence Director shall ensure that
the staff of the National Counterproliferation Center has
access to all databases and information maintained by the
elements of the intelligence community that are relevant to
the duties of the Center.
(j) Support and Cooperation of Other Agencies.--(1) The
elements of the intelligence community and the other
departments, agencies, and elements of the United States
Government shall support, assist, and cooperate with the
National Counterproliferation Center in carrying out its
missions under this section.
(2) The support, assistance, and cooperation of a
department, agency, or element of the United States
Government under this subsection shall include, but not be
limited to--
(A) the implementation of interagency plans for operations,
whether foreign or domestic, that are developed by the
National Counterproliferation Center in a manner consistent
with the laws and regulations of the United States and
consistent with the limitation in subsection (h)(4);
(B) cooperative work with the Director of the National
Counterproliferation Center to ensure that ongoing operations
of such department, agency, or element do not conflict with
operations planned by the Center;
(C) reports, upon request, to the Director of the National
Counterproliferation Center on the performance of such
department, agency, or element in implementing
responsibilities assigned to such department, agency, or
element through joint operations plans; and
(D) the provision to the analysts of the National
Counterproliferation Center electronic access in real time to
information and intelligence collected by such department,
agency, or element that is relevant to the missions of the
Center.
(3) In the event of a disagreement between the National
Intelligence Director and the head of a department, agency,
or element of the United States Government on a plan
developed or responsibility assigned by the National
Counterproliferation Center under this subsection, the
National Intelligence Director may either accede to the head
of the department, agency, or element concerned or notify the
President of the necessity of resolving the disagreement.
(k) Definitions.--In this section:
(1) The term ``counterproliferation'' means--
(A) activities, programs and measures for interdicting
(including deterring, preventing, halting, and rolling back)
the transfer or transport (whether by air, land or sea) of
weapons of mass destruction, their delivery systems, and
related materials and technologies to and from states and
non-state actors (especially terrorists and terrorist
organizations) of proliferation concern;
(B) enhanced law enforcement activities and cooperation to
deter, prevent, halt, and rollback proliferation-related
networks, activities, organizations, and individuals, and
bring those involved to justice; and
(C) activities, programs, and measures for identifying,
collecting, and analyzing information and intelligence
related to the transfer or transport of weapons, systems,
materials, and technologies as described in subparagraph (A).
(2) The term ``states and non-state actors of proliferation
concern'' refers to countries or entities (including
individuals, entities, organizations, companies, and
networks) that should be subject to counterproliferation
activities because of their actions or intent to engage in
proliferation through--
(A) efforts to develop or acquire chemical, biological, or
nuclear weapons and associated delivery systems; or
(B) transfers (either selling, receiving, or facilitating)
of weapons of mass destruction, their delivery systems, or
related materials.
amendment no. 3896
(Purpose: To include certain additional Members of Congress among the
congressional intelligence committees and for certain other purposes)
On page 8, strike lines 3 and 4 and insert the following:
(A) the Select Committee on Intelligence of the Senate;
(B) the Permanent Select Committee on Intelligence of the
House of Representatives;
(C) the Speaker of the House of Representatives and the
Majority Leader and the Minority Leader of the House of
Representatives; and
(D) the Majority Leader and the Minority Leader of the
Senate.
On page 172, beginning on line 24, strike ``the Select
Committee on Intelligence of the Senate, the Permanent Select
Committee on Intelligence of the House of Representatives,''
and insert ``the committees and Members of Congress specified
in subsection (c),''.
On page 173, beginning on line 17, strike ``the Select
Committee on Intelligence of the
[[Page S10344]]
Senate, the Permanent Select Committee on Intelligence of the
House of Representatives,'' and insert ``the committees and
Members of Congress specified in subsection (c),''.
On page 174, beginning on line 7, strike
``Representatives'' and all that follows through line 13 and
insert ``Representatives, the Speaker of the House of
Representatives and the Majority Leader and the Minority
Leader of the House of Representatives, and the Majority
Leader and the Minority Leader of the Senate. Upon making a
report covered by this paragraph--
``(A) the Chairman, Vice Chairman, or Ranking Member, as
the case may be, of such a committee shall notify the other
of the Chairman, Vice Chairman, or Ranking Member, as the
case may be, of such committee of such request;
``(B) the Speaker of the House of Representatives and the
Majority Leader of the House of Representatives or the
Minority Leader of the House of Representatives shall notify
the other or others, as the case may be, of such request; and
``(C) the Majority Leader and Minority Leader of the Senate
shall notify the other of such request.
On page 174, between lines 22 and 23, insert the following:
(c) Committees and Members of Congress.--The committees and
Members of Congress specified in this subsection are--
(1) the Select Committee on Intelligence of the Senate;
(2) the Permanent Select Committee on Intelligence of the
House of Representatives;
(3) the Speaker of the House of Representatives and the
Majority Leader and the Minority Leader of the House of
Representatives; and
(4) the Majority Leader and the Minority Leader of the
Senate.
On page 176, between lines 3 and 4, insert the following:
(iii) the Speaker of the House of Representatives and the
Majority Leader and the Minority Leader of the House of
Representatives;
(iv) the Majority Leader and the Minority Leader of the
Senate;
On page 176, line 4, strike ``(ii)'' and insert ``(v)''.
On page 176, line 7, strike ``(iii)'' and insert ``(vi)''.
On page 200, between lines 4 and 5, insert the following:
SEC. 307. MODIFICATION OF DEFINITION OF CONGRESSIONAL
INTELLIGENCE COMMITTEES UNDER NATIONAL SECURITY
ACT OF 1947.
(a) In General.--Paragraph (7) of section 3 of the National
Security Act of 1947 (50 U.S.C. 401a) is amended to read as
follows:
``(7) The term `congressional intelligence committees'
means--
``(A) the Select Committee on Intelligence of the Senate;
``(B) the Permanent Select Committee on Intelligence of the
House of Representatives;
``(C) the Speaker of the House of Representatives and the
Majority Leader and the Minority Leader of the House of
Representatives; and
``(D) the Majority Leader and the Minority Leader of the
Senate.''.
(b) Funding of Intelligence Activities.--Paragraph (2) of
section 504(e) of that Act (50 U.S.C. 414(e)) is amended to
read as follows:
``(2) the term `appropriate congressional committees'
means--
``(A) the Select Committee on Intelligence and the
Committee on Appropriations of the Senate;
``(B) the Permanent Select Committee on Intelligence and
the Committee on Appropriations of the House of
Representatives;
``(C) the Speaker of the House of Representatives and the
Majority Leader and the Minority Leader of the House of
Representatives; and
``(D) the Majority Leader and the Minority Leader of the
Senate;''.
On page 200, line 5, strike ``307.'' and insert ``308.''.
On page 200, line 12, strike ``308.'' and insert ``309.''.
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.''.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. I ask unanimous consent that the pending amendments be set
aside so I can offer an amendment for Senator Durbin.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 3923
Mr. REID. I call up amendment No. 3923.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
amendment no. 3923
(Purpose: To ensure the balance of privacy and civil liberties)
On page 154, strike lines 1 through 3 and insert the
following:
(1) analyze and review actions the executive branch takes
to protect the Nation from terrorism, ensuring that the need
for such actions is balanced with the need to protect privacy
and civil liberties; and
On page 155, line 6 strike beginning with ``has'' through
line 9 and insert the following: ``has established--
``(i) that the need for the power is balanced with the need
to protect privacy and civil liberties;''.
On page 166, strike lines 4 through 6 and insert the
following: ``element has established--
``(i) that the need for the power is balanced with the need
to protect privacy and civil liberties;''.
The PRESIDING OFFICER. The amendment is pending.
Mr. REID. I ask that it now 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 call the roll.
The 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. Without objection, it is so ordered.
Amendment No. 3871
Mr. SESSIONS. Mr. President, I rise to speak in support of an
amendment previously offered, No. 3871, and to share some thoughts
about what I believe to be a critical issue facing us in terms of
security for this country.
One thing this legislation we are discussing today could do better is
it could more effectively help deal with weaknesses that exist in our
system today. We are moving blocks around at headquarters and creating
responsibilities. Some of that may be good and some of that may not,
but what I have not seen enough of is focus on what really is a problem
and a weakness in our system and proposals that will actually fix that
and make it stronger.
We know, for example, that lack of human intelligence over decades
since I guess the Church Committee has left us far too few intelligence
officers around the world. We know that we have far too few translators
who can translate foreign languages that may involve people who have
connections to terrorism. Those are things we know are problems, and I
am afraid we do not do enough about it.
This is a matter that I think is critically important that is a
problem generally recognized by people today in this country who give
it much thought. It is simply this: That if a police officer in any
town in America were to stop an individual he or she believes to be
here illegally, I would suggest that most Americans do not know what
will happen at that point. As a former Federal prosecutor and Attorney
General of Alabama, I travel the State and frequently meet with local
law officers, sheriffs and police officers, and I ask them what they do
when they discover someone who has been in this country illegally.
The answer is, they let them go. They used to call the Immigration
and Naturalization Service and they would tell them that if there were
not at least 15 people in this group illegally they would not bother to
come and even pick up this individual. As a result of that and a few
court rulings that, in my view, are not persuasive, are not binding,
the mentality has developed among State and local law enforcement that
they do not have any role in enforcing our immigration laws, and they
do not do it.
I raise this simply because it used the same language I have used
before. This is an article from, I believe, a Portsmouth, New
Hampshire, paper. It involves the Kittery, ME, police chief. The first
line of the article says, ``This country is facing a tremendous
security issue when it comes to illegal aliens.''
The chief of police sent that strong message after his department
detained a Colombian citizen and a Bulgarian citizen. Both were found
to be in the country after their visas had expired--illegally:
. . . but the police were told by Immigration and
Naturalization Service agents, to release them.
``They just let them go,'' the Chief said.
That is what happens in America today. That is reality. Anyone who
suggests that our police are able to participate effectively in
apprehending people who are here illegally does not know what is
happening in the real world. We have 650,000 State and local police
officers in America--sheriff deputies, police officers, State troopers,
[[Page S10345]]
and the like. But there are only 2,000 Interior enforcement officers
for the Department of Immigration--ICE, they now call it; only 2,000 in
the whole country.
So, to tell our local people we don't want your help in this is
unwise. It is a serious flaw in our system and I propose that we fix
it.
I understand the way we are proceeding here that this amendment is
probably not germane. Therefore, if it is not germane, with cloture
probably we will not get a vote on it. But it is something I wanted to
share with the Members of this Senate.
We have Senator Cornyn, Senator Ensign, Senator Chambliss--who chairs
the Immigration Subcommittee in Judiciary--and Senator Miller from
Georgia. They have signed onto this amendment. Senator Inhofe, I see
just came in, is a signer and supporter of this amendment. It is common
sense. It is plain common sense. What we are doing now is wrong. I am
very concerned about it.
In addition to the fact that they are told not to participate in the
apprehension or detention or holding of someone who is here illegally,
even more bizarre is the fact that we now have 400,000 alien absconders
in this country. That is 400,000 people who were determined to be in
this country illegally, by one forum or another, by administrative
ruling or court determination, and have been issued final orders of
deportation, but are still at large. What do you think would normally
happen if that occurred, if someone is found here illegally and
determined so by an administrative or court proceeding? You would think
they would be asked to leave. They would be deported.
What happens is they are released on bail pending a final order of
deportation and 80 percent of those never come back. They don't show up
for their deportation hearing. They abscond.
Mr. President, 86,000 of those are criminal felons; of that 400,000
who absconded, 86,000 are criminal felons who came to this country with
permission to live here and work here according to the rules and
regulations. They have been convicted of a felony and they have been
ordered deported, but they abscond and they are out there--criminals,
many of whom are threats. Fifteen thousand of these 86,000 have been
determined to be of ``national security interest,'' and 3,000 come from
state sponsors of terrorism.
We know that three of the 9/11 hijackers had contact with State and
local police during routine traffic stops prior to 9/11. Hijacker
Mohammed Atta, believed to have piloted American Airlines flight 77
into the World Trade Center's north tower, was stopped twice by police
in Florida. Hijacker Ziad S. Jarrah was stopped for speeding by
Maryland State police 2 days before 9/11. Hani Hanjour, who was on the
flight that crashed into the Pentagon, was stopped for speeding by
police in Arlington, VA.
Right now, if a State or local officer stops one of these 400,000
absconders, they have no real way of knowing the person has been
ordered removed from the country by an immigration court. Do you
understand that? The key thing here is that people need to understand
how the system works. Let's say a Mohammad Atta had been arrested for
reckless driving or DUI, that he was in violation of his immigration
laws and was ordered deported, and that he absconded back into the
country and he is stopped in Maryland or Alabama or Maine by a local
police officer. What would happen? If he had committed larceny and had
a warrant out for his arrest from Maine, I will tell you what would
happen if he is stopped in Alabama. The police officer will run the
National Crime Information Computer check. It will come out that there
is a warrant out for his or her arrest for larceny in Maine, and he
will be held and turned over to the Maine authorities to be prosecuted.
What happens if a person is one of the 400,000 alien absconders? That
information is not being put in the NCIC database, so it is not
available to the police officers who make a check. They can't determine
whether this is a danger to America.
This is what our amendment would do. It would simply clarify the
authority of State and local police, that they have a voluntary role in
their local role that requires information, and it requires information
such as revoked visas and final orders of deportation be listed in the
NCIC so the State and local officers can have access to it in the
course of their routine duties. It does not say people have to go out
and start looking for illegal aliens, but if they apprehend somebody,
they run the NCIC check and see whether there is a final order of
deportation in the system.
Action by state and local police is totally voluntary. There has been
some concern that similar legislation would require the local police to
participate in enforcing immigration laws, which I personally think
most should--or at least they ought to. But this amendment would not
require any action by state and local officers. It also has no link to
any funding they are currently receiving.
The amendment goes a step further to clarify the voluntary nature of
this amendment it includes language saying that nothing would require
the State and local officers to report the immigration status of
witnesses of crimes or victims of crimes. Some say if you do that,
people will not come forward and report a crime; if they are a victim,
they will not come forward and report if they are a witness. This
amendment does not require any of that.
Let me briefly conclude. I could say much more about this. But the 9/
11 Commission dealt with this issue. They recognize the ``growing
role''--that is a quote in the 9/11 Commission report--of our State and
local law enforcement agencies in the area of immigration law
enforcement, and for effective cooperation of all levels of immigration
law enforcement--Federal, State, and local.
They also noted this challenge. On page 383 of the 9/11 report:
The challenge for national security in an age of terrorism
is to prevent the very few people who may pose overwhelming
risk from entering or remaining in the United States
undetected.
We ought to listen to that. It is a threat to our country, that the
people who are here illegally remain here without being apprehended.
They say there is a growing role for State and local law enforcement in
this area. That is why we have offered this language. That is why, even
before 9/11, I recognized the problem would be crucial for this
country.
I am very frustrated but we need to step up to the plate and make
sure every local and State law enforcement officer knows what their
authority is; that the Federal ICE people will come and retrieve people
who are here illegally; that people who have absconded after a valid
order of deportation and a warrant for their arrest has been issued.
That ought to be in the NCIC for an immigration offense just as much as
a petty larceny offense or a DUI offense. That is not the way it is
today.
We have to confront this issue. In one fell sweep we could add
600,000-plus law officers--the eyes and ears of America on the streets
of every city and town in America. We could add them to the effort to
make this country secure. We could add them as eyes and ears with the
ability to identify and arrest people who have warrants out for them,
who may be 1 of 3,000 from countries that harbor terrorism.
I thank the Chair. I believe we need to continue to work on this. I
intend to do so. We ought to have a vote on this, if possible. If not,
we will just keep coming back at it.
Amendments No. 3850, No. 3851, No. 3855, No. 3856, and No. 3872
I ask unanimous consent that the pending amendment be set aside, and
on behalf of Senator Grassley, I would like to call up en bloc five
amendments that are filed at the desk. I call up amendments No. 3850,
No. 3851, No. 3855, No. 3856, and No. 3872, and I ask unanimous consent
that the amendments be set aside.
The PRESIDING OFFICER. Is there objection?
Mr. LIEBERMAN. Objection is made.
I ask the Senator from Alabama if he could indicate what the
amendments are.
Mr. SESSIONS. I thank Senator Lieberman. This was a request from
Senator Grassley, and I called these amendments up and then asked that
they be set aside.
Mr. LIEBERMAN. I thank the Senator.
I remove my objection.
[[Page S10346]]
The PRESIDING OFFICER. Without objection, it is so ordered.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Amendment No. 3566
Mr. SPECTER. Mr. President, I have filed amendment No. 3866, which
would prohibit racial profiling with the relevant section as follows:
The term ``racial profiling'' means the practice of law
enforcement agents relying to any degree on race, ethnicity,
religion or national origin in selecting which individuals to
subject to routine or spontaneous investigatory activities or
in deciding upon the scope and substance of law enforcement
activity following the initial investigatory procedure except
where there is trustworthy information relevant to the
locality and timeframe that links persons of a particular
race, ethnicity, religion or national origin to an identified
criminal incident or scheme.
The amendment further defines routine or spontaneous investigative
activities to include interviews, traffic stops, pedestrian stops,
frisks, and other types of body searches, consensual or nonconsensual
searches of the person and possessions, including vehicles,
pedestrians, entrants into the United States that are more extensive
than those customarily carried out, immigration-related workplace
investigations, or other types of enforcement encounters as compiled by
the Federal Bureau of Investigation or the Bureau of Statistics.
As evident from these definitions, a number of these items would
relate to the kinds of activities of national intelligence, the
immigration-related workplace investigations, inspections and
interviews of interest to United States.
This amendment tracks very closely the provisions of the Department
of Justice guidance regarding use of race by Federal law enforcement
agencies promulgated in June of 2003 which says in relevant part, ``in
making routine or spontaneous law enforcement decisions, such as
ordinary traffic stops, Federal law enforcement officers may not use
race or ethnicity to any degree except that officers may rely on race
or ethnicity in a specific subject description.''
I understand the managers are not prepared to have another vote this
evening.
But for the Record I ask unanimous consent that the pending amendment
be set aside and the amendment No. 3866 be taken up for consideration.
Mr. REID. Mr. President, reserving the right to object, I understand
the legal prowess of the Senator from Pennsylvania when there is a
legal issue. I know the good intentions he has in regard to this most
important subject matter and to what the amendment relates. But on
behalf of the authorizers, I think this matter should be discussed at
the Judiciary Committee level in some detail, and it has not. I object.
The PRESIDING OFFICER. Objection is heard.
Mr. SPECTER. Mr. President, I have sought to offer this amendment for
most of the afternoon. I offered two amendments last week. I know how
difficult it is to manage a bill.
I, again, compliment the distinguished chairman, Senator Collins, and
the distinguished ranking member, Senator Lieberman, for their work.
As soon as the bill was called to the floor last week, I came to the
floor and offered two amendments to cooperate with the managers. I was
awaiting the time to offer this amendment.
The problem which is posed procedurally is that cloture will be filed
tomorrow. If cloture is invoked, this amendment will not satisfy the
germaneness requirements which is the reason I have offered it this
evening. But in light of the objection to set aside the pending
amendment so debate and a vote can occur on this amendment, I yield the
floor.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. LIEBERMAN. Mr. President, I thank the Senator from Pennsylvania.
He is a very valued and constructive member of our committee in
considering this legislation. He was dealing in this amendment with a
problem that ought to be dealt with, but, unfortunately, because of the
moment we have reached on this bill where effectively unanimous consent
is necessary to take up a matter for a vote and objection has been
heard on both sides, that will not be possible.
I thank him. I thank him for getting the process going last week and,
as he said, coming over early and submitting two amendments which
helped to clarify the matters this bill contains. There will be another
day for this amendment, I am sure.
Once again, I thank him for his real leadership in pursuit of reform
of our national intelligence assets.
I yield the floor.
Ms. COLLINS. Mr. President, I join the Senator from Connecticut and
the Senator from Nevada in their compliments of the Senator of the
Commonwealth of Pennsylvania. I do very much appreciate that he was so
willing to come forward early last week and offer the first amendments.
I regret that objection on both sides of the aisle prevent us from
accommodating him this evening.
Mr. SPECTER. Mr. President, I thank my colleagues for their gracious
comments and pick up on what Senator Lieberman said. This amendment
will return. There will be a day for its due consideration and I think
enactment by this body.
I yield the floor.
Mr. REID. 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.
Mr. INHOFE. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Talent). Without objection, it is so
ordered.
Mr. INHOFE. Mr. President, I ask unanimous consent I be recognized to
speak as in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
Grant Dollars at EPA
Mr. INHOFE. Mr. President, I rise today to shed some light on a
subject that is very important to me in my oversight duties as the
chairman of the Environment and Public Works Committee. Earlier this
year, the Environment and Public Works Committee held an oversight
hearing where the committee heard testimony from the General Accounting
Office and the EPA inspector general regarding a 10-year history of
numerous problems with the management of grant dollars at the
Environmental Protection Agency.
Some of the problems included EPA not requiring grant recipients to
demonstrate real environmental benefits for grants, EPA not requiring
competition in its grants awards, and a general lack of oversight of
EPA grant officers and recipients. The EPA inspector general released
an audit only 2 days before the hearing, finding that a particular
nonprofit guaranty had violated the Lobbying Disclosure Act, and with
nearly $5 million of EPA grant funding.
Members may recall, because I talked about it at that time, that it
was the Consumer Federation of America, which is a 501(c)(4), that had
been a recipient of discretionary grants from the EPA. That is a
501(c)(4) as in lobbying organization. They support candidates. It is
strictly against the law.
Over the last few months, my staff has done considerable research
into the EPA grant and confirmed many of the problems and also found
the EPA has a long history of awarding grant dollars without
competition to some well-known nonprofit environmental groups that
regularly engage in political activity. My staff has compiled some of
these findings in this 30-page report to the chairman.
In examining how the environmental groups receive and spend their
Federal dollars, it became apparent they receive funding from numerous
sources, including large foundations. Within these organizations,
political and grassroots efforts quickly became difficult to
differentiate the sources of their funding and how they spend them.
Therefore, I instructed my staff to examine the funding and expenditure
records of the organizations. That has resulted in a second report
which is the focus of my remarks today.
My staff has compiled this information into a 15-page report for the
chairman to provide some preliminary examples describing five of the
most widely politically active environmental groups, the description of
their activity, the foundations that provide the financial support for
these groups, and the interconnected web among all those organizations.
[[Page S10347]]
Interestingly, these environmental groups are all tax-exempt, IRS-
registered 501(c)(3) charitable organizations, meaning contributions to
these groups are tax deductible. These groups profess to be the
greatest stewards of the environment and solicit contributions from a
variety of sources by that claim. But they demonstrate more interest in
giving apocalyptic environmental scenarios to raise money for raw
political purposes rather than working together to improve the
environment for America.
We have money from foundations, individuals, and government grants
going into environmental groups, and then they turn around and put
these out to the 501(c)(3), 527 organizations and 501(c)(4), these are
political organizations. All these nonprofit groups are also closely
associated and fund their affiliated 501(c)(4) lobbying organizations
and the 527 political organizations.
This report could not be more timely as the Washington Post, as
recently as September 27 of this year, published an article
demonstrating that IRS 501(c)(3), 501(c)(4), and 527 organizations are
all engaged in political activity this election cycle with expenditures
designed to circumvent the prohibitions in the bipartisan campaign
Reform Act of 2002, otherwise known as McCain-Feingold.
This article quoted a Federal Election Commission official stating:
In the wake of the ban on party-raised soft money, evidence
is mounting that money is slithering through on other
routes as organizations maintain various accounts,
tripping over each other, shifting money between
501(c)(3)'s, (c)(4)'s, and 527's. . . . It's big money.
Why is this important? Because the environment is important to all
Americans. Despite what we hear from the groups in their attack
advertisements against President Bush and the Republican candidates
across the Nation, our air is cleaner, water more drinkable, and our
forests are becoming healthier.
Keep in mind this is over a period of time when we have almost
doubled the amount of miles that are driven, and our population is
dramatically increasing. Yet things are cleaner than they were before.
For instance, over the last 30 years we have cut air pollution in
half. Why, then, are some extremists spending millions upon millions to
hijack the conservation movement? It seems to me that it is more
important to the leadership of these groups to turn their once laudable
movement into a political machine by sending out their bipartisan snake
oil, salesmen, and misleading the American public regarding their
purely politically partisan agenda under the guise of environmental
protection.
Our Nation's father of conservation, Teddy Roosevelt, said:
To waste, to destroy, our natural resources, to skin and
exhaust the land instead of using it so as to increase its
usefulness, will result in undermining in the days of our
children the very prosperity which we ought by right to hand
down to them amplified and developed.
These words ring true today, but unfortunately it is clear that the
environmentalist movement is deaf to them. What we find now is the
fleecing of the American public's pocketbooks by the environmental
movement for their political use. What we find now is exhausting
litigation, instigation of false claims, misleading science, and scare
tactics to fool Americans into believing disastrous environmental
scenarios that are untrue.
Pay close attention to the webs of this incestuous activity of these
environmentalists groups and their financial benefactors. Environmental
organizations have become experts at duplicitous activity, skirting
laws up to the edge of illegality, and burying their political
activities under the guise of nonprofit environmental improvement.
Chart No. 2 demonstrates the interconnection environmental family
affair with nonprofits and their benefactors. As we can see, six
organizations at the bottom of the chart are all either 527 groups or
501(c)(4)s. These are political organizations. Money that comes up
here--for example, the Heinz Foundation, goes to the various
organizations and ultimately gets to the Environmental Accounting Fund,
the Save the Environment Organization, Action Fund, Sierra Club Votes,
Defenders of Wildlife, Environment 2004. These are all either
501(c)(4)s or 527 organizations.
The LCV calls itself the political voice of the national
environmental movement, and much of its grants from even its 501(c)(3)
organizations go to fund voter mobilization and education drives. In
each election cycle, LCV endorses congressional candidates and since
1996 has published a ``dirty dozen'' list. They brag about the dirty
dozen list that has been very effective, but the LCV mostly singles out
only Republican candidates.
What we are talking about is the money that is channeled from
501(c)(3) organizations is going to defeat Republican candidates.
Mr. President, let me provide some examples. So far this year, the
LCV has released a ``Dirty Dozen'' list of eight congressional
candidates--seven Republicans and one Democrat. For the first time
ever, it includes the President and Vice President. I cannot forget
that LCV has, of course, endorsed the junior Senator from Massachusetts
for President, the earliest endorsement of a Presidential contender in
its 34-year history.
The LCV's 527 organization last reported to have raised over $3.3
million in the 2004 election cycle. This is chart No. 3: $3.3 million.
It has also joined with Environment2004, another 527 political
organization directed by former Clinton administration EPA staffers
purchasing air time to run ads against the President.
Interestingly, not all candidates appreciate LCV's help.
I recently read where the senior Senator from South Dakota requested
the LCV not air advertisements in the South Dakota Senate contest this
year and even characterized outside organization advertisements as
``often too negative, too personal, and lack any real substance.''
However, LCV has a long history of political involvement. This is
chart No. 4. In 1996, LCV spent a total of $1.5 million in ads trying
to defeat its ``Dirty Dozen'' list of targets of 11 Republicans and 1
Democrat.
In 1998, LCV spent $2.3 million targeting its ``Dirty Dozen'' list of
12 Republican candidates and 1 Democratic candidate.
In 2000, the LCV spent a total of $4 million, again targeting 11
Republicans and 1 Democrat on its ``Dirty Dozen'' list. And I cannot
forget, in 2000 the LCV also endorsed Al Gore for President.
In 2002, the LCV once again targeted 11 Republican congressional
candidates and 1 Democrat.
I see a partisan pattern that is well developed here. LCV spent
hundreds of thousands of dollars in congressional contests against
Republican candidates. However, the strongest effort seems to have been
focused on Senator Allard. The LCV claims to have budgeted a total of
$700,000 for that race alone and hired a campaign staff of 12 to
coordinate phone banks and precinct walks in addition to running
television and radio advertisements. Altogether, LCV is reported to
have spent $1.5 million in independent expenditures during the 2002
election cycle. Of that total amount, LCV spent $1.313 million
benefiting Democratic candidates while only spending $136,000 for
Republican candidates.
Another example is the Sierra Club. The Sierra Club describes itself
as ``America's oldest, largest and most influential grassroots
environmental organization.'' Sierra Club is also an IRS-registered,
tax-exempt, nonprofit 501(c)(3) foundation. Here we go again. The
Sierra Club Foundation is closely affiliated with its Sierra Club
501(c)(4) and section 527 political organizations. In fact, the
Washington Post detailed the interconnected organizations of the Sierra
Club in an article it featured last Monday. This is what the Post
printed:
Perhaps no one better illustrates the host of interlocking
roles than Carl Pope, one of the most influential operatives
on the Democratic side in the 2004 election. As executive
director of the Sierra Club, a major 501(c)(4) environmental
lobby, Pope also controls the Sierra Club Voter Education
Fund, a 527. The Voter Education Fund 527 has raised $3.4
million this election cycle, with $2.4 million of that amount
coming from the Sierra Club. A third group, the Sierra Club
PAC, has since 1980 given $3.9 million to Democratic
candidates and $173,602 to GOP candidates.
The Sierra Club is consistently critical of the Bush environmental
record and sometimes others as well. The Sierra Club even accused me of
trying to
[[Page S10348]]
raise the levels of mercury pollution. The Sierra Club's 527 political
organization reports to have raised over $6.8 million for the 2004
election cycle alone, with a goal of over $8 million by the end of the
month.
Like the LCV, the Sierra Club has a history of involvement in
politics. In the year 2000 Presidential contest, the Sierra Club spent
several hundred thousand dollars in advertisements attacking President
Bush. And in the 2002 election cycle, the Sierra Club endorsed 184
Democratic incumbents and challengers and endorsed 10 Republican
candidates--184 Democrats and 10 Republicans. Not surprisingly, the
Sierra Club is heavily involved in the 2004 political cycle. The Sierra
Club began spending early in the 2004 Presidential contest and has made
a series of endorsements this year. Of course, the Sierra Club has
endorsed the junior Senator from Massachusetts for President, and it
has endorsed 16 Democratic Senate incumbents and challengers and no
Republican candidates--16 Democrats, no Republicans. In races for the
House of Representatives, the Sierra Club has endorsed 114 Democratic
incumbents and challengers and has endorsed 7 Republican candidates.
Let me use one more example briefly--the Natural Resources Defense
Council. The NRDC is also an IRS-registered, tax-exempt, nonprofit
501(c)(3) receiving $55 million in tax-deductible contributions--these
are tax-deductible contributions; no money going into the Treasury--in
just the last year running bogus ads like this one on this chart
claiming President Bush is rolling back a mercury regulation that never
existed. This is an outrageous lie. I do not remember how much this ad
cost, but if you look, this was a full-page ad run in the New York
Times. Down here it says:
Yes, I want to join the Natural Resources Defense Council
and help thwart President Bush's plan to weaken controls on
toxic mercury.
There are already controls on toxic mercury. This is an outrageous
lie. How can you lower something that does not exist? The truth is,
President Bush's Clear Skies legislative proposal, which I support, is
the biggest emissions reduction plan ever proposed by any American
President. Over 14 years, it would reduce emissions from powerplants of
nitrogen oxides, sulfur dioxide, and mercury emissions from powerplants
by 70 percent. Let's be sure and understand that the NRDC deliberately
lied in this ad because you cannot roll back standards that do not
exist.
The NRDC is affiliated with the NRDC Action Fund, a 501(c)(4)
organization--here we go again--and the Environmental Accountability
Fund, its section 527 political organization. The NRDC describes itself
as ``the nation's most effective environmental action organization,''
and has a long history of political activity.
The NRDC has joined this year with LCV and the Sierra Club to air
television and radio ads and hire campaign staffs to work against
President Bush in several States, including New Mexico, Florida,
Arizona, and Nevada. Overall, the Environmental Accountability Fund,
NRDC's 527 organization, last reported to have raised nearly $1 million
in the 2004 election cycle.
Well, that is three of the culprits. The report outlines two others
in depth--Greenpeace and Environmental Defense--and shows similar
patterns of partisan fundraising and spending, such as this Greenpeace
ad that equates President Bush's conservation policies to the Texas
chainsaw massacre--a disgusting comparison, especially considering that
historic healthy forest legislation was proposed and passed by this
administration. It is sad that many of these groups would rather watch
our forests burn and our watersheds become destroyed rather than employ
21st century forest management technology to improve forest health.
But misleading and scaring the American people during a Presidential
election year, I guess, is more important to them than true forest
health.
501(c)(3)s, 501(c)(4)s, political action committees, and 527
political organizations--it is all tangled up in a web. Back to that
chart we used, chart No. 2, you can see how convoluted it is.
But the money all ends up down here being used for political
purposes, millions upon millions of dollars going for partisan
political activity while these groups attempt to maintain a nonpartisan
cloak and justification that they are helping our environment. But
these funds do not just come from scared mothers and others furiously
writing checks because these groups have lied to them and told them
that eating fish will kill their children. Our research has found that
much of the funding these groups receive comes from independent
foundations and trusts which also claim to be nonpartisan.
Let's take a look now at some of these nonpartisan institutions and
how their money finds its way to this intricately growing web. The
Heinz foundations are a few of the largest contributors to these
nonprofit environmental organizations. And, of course, Mrs. Teresa
Heinz Kerry is either a chairperson of the board of trustees or a
member of the board of trustees of each one of these foundations.
In fact, Mrs. Heinz Kerry is the head of the $1.2 billion Heinz
Foundation Endowment.
Since 1998, these foundations have contributed nearly $3 million to
the Sierra Club, LCV, the NRDC, and Environmental Defense. Each
foundation is also a large contributor to the Tides Center and the
Tides Foundation, contributing over $6 million since 1998. The Tides
organization has in turn also contributed over $1.4 million to the
Sierra Club, Greenpeace, and the NRDC over the same period of time.
Another major supporter is the Turner Foundation, founded in 1990 by
Ted Turner, who is chairman of the foundation board of trustees. The
Turner Foundation sponsors the work of its special projects which
include the Partnership Project, comprised of 20 national environmental
groups. Since 1998, the Turner Foundation has contributed over $6.4
million to the Partnership Project. Individually, the Turner Foundation
has contributed more than $20 million to the LCV since 1998; over $2.6
million to the NRDC; over $1 million to the Sierra Club; and nearly $2
million to Environmental Defense, Earth Justice, and Greenpeace.
Finally, another large supporter is the Pew Charitable Trust. You can
follow the lines of the money there. It claims it is an independent
nonprofit serving to inform the public on key issues. Two of the Pew's
environmental priorities include global warming and wilderness
protection. Pew has contributed $17.4 million to Clear the Air Campaign
since 1999, with which it publishes materials such as this claiming
that the Bush plan means more pollution. Again, another impossible lie
because you can't roll back mercury standards that don't exist.
Perhaps wilderness protection is where the Pew shows its true colors.
It has joined with the Heritage Force Campaign, the Natural Resource
Defense Council, Environmental Defense, and the Sierra Club in a
campaign characterizing the President's conservation policies as
``Crazy George's National Forest Give-a-Way.'' Once again, it is silly
scare ads like this. For them, it is only about politics, not about
true forest management.
We should be more scared of this tangled web of political financing
and the fact that there is no way to tell where taxpayer funded grants
and private dollars cross. These are the grants we started out talking
about. It is also convoluted where advocacy funding and political
funding intermingle and even if environmental groups really spend any
money actually improving the environment.
Since 1998, Pew Foundation has contributed several million dollars to
various environmental organizations. These contributions have included
nearly $18 million to Earth Justice; over $3 million to NRDC; over $3.7
million to Environmental Defense. Pew has also contributed $32.6
million to the Tides Center and Foundation over the same period. The
Tides organization has contributed over $1.4 million to the Sierra
Club, Greenpeace, NRDC, among others, since 1998.
This does not even represent all of the political involvement of
environmental extremists. These groups have established an
unquestionable record of partisanship and demonstrated a slithering
flow of money among themselves and from their financial benefactors.
Today's environmental groups are simply Democratic political machines
[[Page S10349]]
raising millions of dollars in contributions and spending millions in
expenditures each year for the purpose of raising more money to pursue
their agenda. Especially in this election year, the American voters
should see these groups and their many affiliated organizations as they
are--the newest insidious conspiracy of political action committees and
perhaps the newest multimillion dollar manipulation of Federal election
laws.
I ask unanimous consent that the reports be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Political Activity of Environmental Groups and Their Supporting
Foundations
questionably non-partisan
Following the League of Conservation Voters' endorsement of
Senator John Kerry for President, The Hill, a Capitol Hill
publication, published an article featuring the financial
connection between the League of Conservation Voters and
Heinz family foundations. The article further featured the
connections between the League of Conservation Voters and
other well-known environmental groups such as the Natural
Resources Defense Council and Environmental Defense and their
financial links to Heinz family foundations as well. The Hill
article cited specific contributions such as a $56,000
contribution in 2003 to the Natural Resources Defense Council
from a Heinz family foundation and three $200,000
contributions from two Heinz family foundations from 2001 to
2003 to Environmental Defense. The article revealed that Ms.
Teresa Heinz Kerry is the chairperson or board member on each
Heinz family foundation, and since 2000, the Heinz
foundations have given nearly $1 million to the League of
Conservation Voters, members of its board, and the groups
those board members represent.
Groups such as the League of Conservation Voters, the
Natural Resources Defense Council, and Environmental Defense
represent themselves as organizations concerned about the
protection of the environment. They are all tax exempt
Internal Revenue Service (IRS) registered 501(c)(3)
organizations often associated with 501(c)(4), 527 political
organizations, or other affiliated organizations. However, as
recently as September 27, 2004, the Washington Post published
an article demonstrating that IRS designated 501(c)(3),
501(c)(4), and 527 organizations are all engaged in political
activity this election year with expenditures potentially
designed to circumvent the prohibitions in the Bipartisan
Campaign Reform Act of 2002, otherwise known as McCain-
Feingold. The article quoted a former Federal Election
Commission official stating.
``In the wake of the ban on party-raised soft money,
evidence is mounting that money is slithering through on
other routes as organizations maintain various accounts,
tripping over each other, shifting money between 501(c)(3)'s,
(c)(4)'s, and 527's. . . . It's big money, and the pendulum
has swung too far in their direction.''
This report for the Chairman provides preliminary examples
describing five of the most widely politically active
environmental groups with a description of their activity and
the foundations that provide the financial support for those
groups.
environmental organizations
League of conservation voters
Beginning with the League of Conservation Voters (LCV)
provides an appropriate beginning because the LCV board of
directors is comprised of various representatives from a
number of other environmental groups. Among those sitting on
either the LCV board of directors, LCV political advisory
committee, or the LCV political committee are leaders in the
following organizations:
--Natural Resources Defense Council
--Environmental Defense
--Sierra Club
--Earthjustice Legal Defense Fund
--The Wilderness Society
--Trust for Public Lands
--Defenders of Wildlife
--U.S. Public Interest Research Group
--National Wildlife Federation
--Environmental Working Group
The LCV is an IRS registered 501(c)(4) organization
affiliated with the LCV Education Fund, a 501(c)(3)
organization. The LCV is also affiliated with a LCV political
action committee, a section 527 organization, and another
501(c)(4) organization, the LCV Accountability Project. The
LCV describes its affiliates as the ``LCV family of
organizations'' and describes its work as ``the political
voice of the national environmental movement and the only
organization devoted full-time to shaping a pro-
environment Congress and White House.'' Since 1996, a
symbol of the political activity of the LCV has been the
Dirty Dozen list it publishes each election year. The LCV
represents that it has defeated 28 of 49 candidates
targeted by its Dirty Dozen campaigns since 1996. Citing
two examples from the 2000 election year, the LCV contends
on its Web site,
``How much impact can LCV campaigns make on national
policy? In 2000, two of the most dangerous anti-
environmentalists in the U.S. Senate--Spencer Abraham of
Michigan and Slade Gorton of Washington--were defeated by
less than 1% following major LCV campaigns. In a Congress
closely divided on the environment, these LCV victories can
make all the difference.''
Senators Abraham of Michigan and Slade Gorton of Washington
were both Republicans running for reelection in 2000. In
fact, in 1996, the LCV spent a total of $1.5 million dollars
sending 254,000 direct mail pieces and airing 9,000
television and radio advertisements attempting to defeat its
Dirty Dozen list of eleven Republican congressional
candidates and one Democrat congressional candidate.
In 1998, the LCV Dirty Dozen list targeted twelve
Republican congressional candidates and one Democrat
congressional candidate for defeat--spending a total of $2.3
million. The LCV spent in many cases over $200,000 per
congressional race--airing television and radio
advertisements and sending direct mail pieces. In the Nevada
Senate race, LCV aired a total of 661 individual television
airings against the Republican candidate. LCV spent up to
$420,000 in the Wisconsin Senate race against the Republican
candidate.
In 2000, the LCV spent a total of $4 million--again
targeting eleven Republican congressional candidates and one
Democrat congressional candidate on its Dirty Dozen list. The
LCV spent up to $444,000 in the Washington Senate race,
$520,000 in the Virginia Senate race, and $705,000 in the
Michigan Senate race, all in an effort to defeat Republican
candidates. However, the LCV also reported spending $52,000
to attempt to defeat Congressman Traficant of Ohio for re-
election, the only Democrat on the LCV Dirty Dozen for 2000.
Additionally, in May of 2000, the LCV endorsed Al Gore for
President.
In 2002, the LCV again targeted eleven Republican
congressional candidates and one Democrat congressional
candidate with television and radio advertisements including
a television advertisement in the South Dakota Senate race
implying that the Republican candidate's environmental
positions were bought by campaign contributions. The LCV sent
thousands of direct mail pieces including 100,000 pieces
mailed in the Georgia Senate race and 75,000 pieces sent in
the New Hampshire Senate race--both against Republican
candidates. The LCV also joined other organizations and spent
a total of $570,000 against the New Hampshire Republican
Senate candidate. However, the strongest effort seems to have
been focused on the Colorado Senate contest. The LCV budgeted
a total of $700,000 for this race against incumbent
Republican Senator Wayne Allard. The LCV hired a campaign
staff of twelve against Senator Allard to coordinate phone
banks and precinct walks in addition to running television
and radio advertisements that LCV claims reached sixty-seven
percent of the state. altogether, the LCV is reported to have
spent $1,449,951 in independent expenditures during the 2002
election cycle. Of that total amount, LCV spent $1,313,041
benefitting Democrat candidates while only spending $136,910
for Republican candidates.
Although the LCV has yet to release its completed Dirty
Dozen list for the 2004 campaign year at the time of this
report, it has released a Dirty Dozen list of eight
Congressional candidates, seven Republicans and one Democrat.
For the first time it has included the President and Vice
President on its Dirty Dozen list. The LCV has endorsed
forty-two candidates in Congressional elections in addition
to endorsing Senator John Kerry for President. In fact, the
LCV's endorsement of Senator Kerry is the earliest
endorsement of a Presidential contender in the thirty-four
year history of the LCV. Of the forty-two candidates endorsed
by the LCV at the time of this report, thirty-one are
Democrat candidates, and ten Republicans are candidates.
As in previous election cycles, the LCV is active this year
airing political advertisements--already spending $100,000 to
elect a Democrat candidate in a Kentucky congressional
special election this year. The LCV is also reported to have
already spent hundreds of thousands of dollars on Senator
John Kerry's Presidential campaign including joining with
Environment2004, a 527 political organization, purchasing air
time in Florida and Washington, D.C. At the time of this
report, Environment2004 last reported to have raised over
$600,000 in the 2004 election cycle. The LCV's 527
organization last reported to have raised over $3.3
million in the 2004 election cycle.
However not all candidates appreciate LCV's help. The
senior senator from South Dakota is reported to have
specifically written LCV characterizing outside organization
advertisements, like those aired by LCV, as ``often too
negative, too personal, and lack any real substance.'' He
further requested that the LCV not air advertisements in the
South Dakota Senate contest this year.
Natural Resources Defense Council
The Natural Resources Defense Council (NRDC) is an IRS
registered 501(c)(3) tax exempt organization affiliated with
the NRDC Action Fund, a 501(c)(4) organization. The NRDC is
also affiliated with the Environmental Accountability Fund, a
section 527 political organization. The NRDC's mission
statement is to ``safeguard the Earth: its people, its plants
and animals and the natural systems on which all life
depends;'' additionally, the NRDC describes itself as ``the
nation's most effective environmental action organization.
Since the beginning of the Bush Administration, the NRDC
has compiled a ``Bush Record'' on its Web site characterizing
the Bush Administration as, ``in catering to industries that
put America's health and natural heritage at risk, threatens
to do more
[[Page S10350]]
damage to our environmental protections than any other in
U.S. history.
The NRDC has a long history of political activity. As early
as 1982, NRDC spent a record $2.5 million with other
environmental organizations on congressional and
gubernatorial races to ``oust Reagan supporters. The NRDC is
also involved in this year's Presidential race joining with
LCV and the Sierra Club to work against President Bush in the
state of New Mexico which has been characterized as a
``battleground state'' this year. The Albuquerque Journal
reports that NRDC has already aired television and radio
advertisements against the Bush Administration's
environmental record joining the LCV and Sierra Club working
to hire their own campaign staffs against the Bush candidacy.
The NRDC's Environmental Accountability Fund, a 527 political
organization, is sponsoring political advertisements against
President Bush throughout New Mexico and other ``battle
ground states'' including Florida, Arizona, and Nevada.
Overall, at the time of this report, this 527 organization
has raised nearly $1 million in the 2004 election cycle.
The NRDC 501(c)(3) organization, however, is also
nationally politically involved joining earlier this year
with Moveon.org, another section 527 political organization,
purchasing advertisements in the New York Times accusing the
Bush Administration of weakening regulations on drinking
water and air quality while soliciting contributions for the
NRDC 501(c)(3) affiliate.
Sierra Club
The Sierra Club describes itself as ``America's oldest,
largest and most influential grassroots environmental
organization.'' With a reported membership of 700,000, the
Sierra Club is represented by a 501(c)(4) organization, a
section 527 political organization, and the 501(c)(3) Sierra
Club Foundation. In a September 27, 2004 article on the
interconnectedness of IRS designated 501(c)(3), 501(c)(4),
and 527 organizations this election year, the Washington Post
featured the Sierra Club as the prime example of this web
writing the following:
``Perhaps no one better illustrates the host of
interlocking roles than Carl Pope, one of the most
influential operatives on the Democratic side in the 2004
election. As executive direct of the Sierra Club, a major
501c(4) environmental lobby, Pope also controls the Sierra
Club Voter Education Fund, a 527. The Voter Education Fund
527 has raised $3.4 million this election cycle, with $2.4
million of that amount coming from the Sierra Club. A third
group, the Sierra Club PAC, has since 1980 given $3.9 million
to Democratic candidates and $173,602 to GOP candidates.
``These activities just touch the surface of Pope's
political involvement. In 2002-03, Pope helped found two
major 527 groups: America Votes, which was raised $1.9
million to coordinate the election activities of 32 liberal
groups, and America Coming Together (ACT), which has a goal
of raising more than $100 million to mobilize voters to cast
ballots against Bush. Finally, Pope is treasurer of a new
501c(3) foundation, America's Families United, which
reportedly has $15 million to distribute to voter
mobilization groups.
`` `I am in this as deeply as I am,' Pope said, `because I
think this country is in real peril.' ''
The Sierra Club is consistently critical of the Bush
Administration and it compiles a ``Sierra Club RAW
newsletter'' featuring ``The Uncooked Facts of the Bush
Assault on the Environment'' with regular criticisms of the
Bush Administration evironmental record and sometimes
expanding its criticisms to other officials as well. For
instance in its June 23, 2004 edition, the Sierra Club
accused Senator Inhofe of attempting to raise ``levels of
mercury pollution'' claiming the following: ``But wait--
there's more. The Bush administration's weak air proposals
were not weak enough, it seems, for Senator James Inhofe, the
chairman of the Environment and Public Works Committee.
Inhofe tried to raise the `acceptable' levels of mercury
pollution. . . .''
Like NRDC's ``Bush Record,'' the Sierra Club has its own
``W Watch'' where it features articles critical of the Bush
Administration on environmental issues to judicial
nominations. Sierra Club affiliated organizations such as
Earthjustice, which began as the Sierra Club Legal Defense
Fund, is also highly critical of the Bush Administration and
is regularly engaged in legal actions against the federal
government. In fact, in its most recent IRS filings,
Earthjustice describes eighty-six legal actions on a variety
of environmental related issues. Earthjustice also publishes
its own political information. It issued its ``Paybacks''
report shortly before the 2002 elections that made such
explicit claims as, ``the Bush Administration is weakening
environmental laws in particular to help those industries
that paid to put it in office.''
Like other environmental groups, the Sierra Club has a
history of involvement in political campaigns. In the 2000
Presidential contest, the Sierra Club spent several hundred
thousand dollars in advertisements attacking Candidate George
W. Bush's campaign throughout the country including what is
reported as the largest expenditure of a third party on
Spanish language advertisements. In the 2002 election cycle,
the Sierra Club is reported to have spent $265,772 in
independent expenditures all for Democratic candidates and
making no independent expenditures for Republican candidates.
Additionally, in the 2002 Senate races, the Sierra Club
endorsed nineteen Democrat incumbents and challengers and
endorsed no Republican candidates. In the 2002 races for the
U.S. House of Representatives, the Sierra Club endorsed one
hundred sixty-five Democrat incumbents and challengers and
endorsed ten Republican candidates.
Like previous election years, the Sierra Club is heavily
involved in the 2004 political cycle. The Sierra Club began
spending early in the 2004 Presidential contest and is
reported to have spent at least $350,000 as early as late
2003 in advertisements against President Bush throughout the
country including in New Hampshire, Michigan, Wisconsin,
Pennsylvania, Florida, Nevada, and Nebraska. The Sierra Club
has made a series of endorsements in this year's political
contests, and like LCV, the Sierra Club has endorsed Senator
John Kerry for President. In Senate races, the Sierra Club
has endorsed sixteen Democrat Senate incumbents and
challengers and no Republican candidates. In races for the
U.S. House of Representatives, the Sierra Club has endorsed
one hundred fourteen Democrat incumbents and challengers
and has endorsed seven Republican candidates. At the time
of this report, the Sierra Club's 527 political
organization claims to have raised over $6.8 million for
the 2004 election cycle alone.
Greenpeace
Greenpeace USA describes itself as ``the leading
independent campaigning organization that uses non-violent
direct action and creative communication to expose global
environmental problems and to promote solutions that are
essential to a green and peaceful future.'' It claims 250,000
members in the United States and 2.5 million members around
the world. Greenpeace USA is represented by Greenpeace, Inc.,
a section 501(c)(4) organization and the Greenpeace Fund
Inc., a section 501(c)(3) organization.
Greenpeace USA and its affiliate organizations through
Greenpeace International have received attention for many
years more through demonstrations than through political
endorsements. Press reports that have described some of
Greenpeace USA's demonstrations have included activists
rapelling down skyscrapers, occupying abandoned oil rigs,
intervening in whale hunts with inflatable rafts, and
illegally boarding ships while at sea, among other
demonstrations that often result in arrests and criminal
convictions for Greenpeace activists. In fact, on Earth Day
2001, Greenpeace USA founder John Passacantado was arrested
with the founder of the Rainforest Action Network for locking
themselves to a gate during a protest blockading the entrance
to the Environmental Protection Agency.
Although, Greenpeace may be better known for its
demonstrations, its political views may be clear as it has
characterized President Bush as the ``toxic Texan,'' and hung
a banner from a water tower near the President's ranch in
Texas that read the same. Greenpeace has devoted much of its
Web site toward criticism of the Bush Administration equating
the Administration's environmental and conservation policies
to the ``Texas chainsaw massacre.''
Environmental Defense
Environmental Defense describes itself as ``fighting to
protect human health, restore the oceans and ecosystems, and
curb global warming.'' Environmental Defense is represented
by two organizations: Environmental Defense, Inc., a
501(c)(3) organization and the Environmental Defense Action
Fund, Inc., a 501(c)(4) organization.
Environmental Defense represents its work in a number of
issue campaigns for instance, increased air regulations,
increased regulation of ocean industries, strengthening
Endangered Species Act and adding additional listings, and
reversing global warming. Environmental Defense is involved
with various other environmental organizations such as the
Sierra Club on many other ``campaigns'' as well. All
``campaigns'' are featured on its Web site or its
Action!Network Web site.
Environmental Defense is regularly associated with other
politically involved environmental organizations as well such
as NRDC, Greenpeace, and LCV, among others, and its board of
directors not only includes the wife of the Democratic
Presidential nominee but also includes former Clinton
Administration officials involved in their own environmental
organizations regularly critical of the Bush Administration.
foundations
The following are three of the foundations that regularly
contribute to the five environmental organizations referenced
in this report, among others.
Pew Charitable Trusts
The Pew Charitable Trusts (Pew) are comprised of seven
separate trusts and reports it is an ``independent non-
profit'' serving to ``inform the public on key issues and
trends, as a highly credible source of independent, non-
partisan research and polling information and that its
environmental priorities include global warming, protecting
ocean life, and wilderness protection.'' In two of those
priorities in particular, global warming and wilderness
protection, Pew has joined and supported other
organizations and campaigns.
In 1998, Pew created the Pew Center on Global Climate
Change. The Pew Center reports, ``the growing scientific
consensus is that this warming is largely the result of
emissions of carbon dioxide and other greenhouse gases from
human activities including industrial processes, fossil fuel
combustion,
[[Page S10351]]
and changes in land use, such as deforestation.'' Pew also
sponsors the work of the Clear the air Campaign with a $3.4
million grant in 1999, $4.3 million grant in 2000, nearly $5
million grant in 2001, and $4.7 million grant in 2003 with
which it published its Dirty Air, Dirty Power report in June
2004 claiming, on the first page of the publication, that
coal burning power plants ``make people sick and shorten the
lives of thousands each year'' and further claiming that
``President Bush has allowed polluters to re-write clean air
rules.''
Concerning wilderness protection, Pew endorses the Heritage
Forests Campaign also highly critical of the Bush
Administration conservation policies, and, joining with the
Natural Resources Defense Council, Environmental Defense, the
Sierra Club, characterize the President's conservation
policies as ``Crazy George's National Forest Give-a-way,
Every Tree Must Go.''
Since 1998, Pew has contributed several million dollars to
various environmental organizations. These contributions have
included nearly $18 million to Earthjustice, over $3 million
to NRDC, and over $3.7 million to Environmental Defense. Pew
has also contributed $32.6 million to the Tides Center and
foundation over the same period. The Tides organization has
contributed over $1.4 million to the Sierra Club and
affiliates, Greenpeace and affiliates, the NRDC, and the
Environmental Working Group since 1998.
Turner Foundation
The Turner Foundation describes itself as ``a private,
independent family foundation committed to preventing damage
to the natural systems--water, air, and land--on which all
life depends.'' It was founded in 1990 by Ted Turner who is
Chairman of the Foundation Board of Trustees. The Turner
Foundation makes grants ``in the areas of the environment and
population.'' The Foundation is especially involved in the
issues of global warming and overpopulation, and supports the
work of its ``special projects'' which include the
Partnership Project which is comprised of twenty national
environmental groups. The Turner Foundation's other special
projects include the League of Conservation Voters Education
Fund, the NARAL Foundation, and Planned Parenthood Federation
of America.
Since 1998, the Turner Foundation has contributed over $6.4
million to the Partnership Project that is comprised of the
League of Conservation Voters, Sierra Club, Earthjustice,
Environmental Defense, Natural Resources Defense council, and
Greenpeace among others. Individually, the Turner Foundation
has contributed more than $20 million to the LCV since 1998,
over $2.6 million to the NRDC, over $1 million to the Sierra
Club, nearly $2 million to the National Wildlife Federation,
and nearly $2 million to Environmental Defense, Earthjustice,
Greenpeace, and the Environmental Working Group.
Heinz foundations
The Heinz foundations are comprised of several different
foundations, some established for specific purposes. Of the
Heinz family affiliated foundations, the largest contributors
to environmental organizations are the Howard Heinz
Endowment, Vira I. Heinz Endowment, and Heinz Family
Foundation.
Ms. Teresa Heinz Kerry is either chairperson of the board
of trustees or member of the board of trustees on each
foundation. Ms. Heinz Kerry is the head of the $1.2 billion
Heinz Foundation endowment. Since 1998, these foundations
have contributed nearly $3 million to Environmental Defense,
the Sierra Club, the LCV, and the NRDC. Each foundation is
also a large contributor to the Tides Center and Tides
Foundation and affiliates contributing over $6 million since
1998. The Tides organization has in turn also contributed
over $1.4 million to the Sierra Club and affiliates,
Greenpeace and affiliates, the NRDC, and the Environment
Working Group over that same period.
conclusion
This report does not represent the totality of
environmental groups engaged in political activity in this
election year or prior election years. It does not even
represent all the actions taken by the environmental groups
that are highlighted in this report each election year.
However, this report provides examples of some of the actions
taken by these groups and clearly questions any claims these
groups make concerning being ``non-partisan.'' These group
shave clearly established a record of partisanship and
clearly demonstrated each election cycle that they simply
have an agenda to work together against Republican candidates
and work to elect Democrat candidates. Additionally, these
groups are, in large part, annually financed by foundations
consistently supporting those groups' partisan efforts and in
some cases directly involved in partisan criticisms of the
Bush Administration. Moreover, these groups' activities
demonstrate the concern expressed in the Washington Post
article regarding political money this election year--money
``slithering through on other routes as organizations
maintain various accounts, tripping over each other, shifting
money between 501(c)(3)'s, (c)(4)'s, and 527's.''
Today's environmental groups are simply political machines
reporting millions in contributions and expenditures each
year for the purpose of raising more money to pursue their
agenda. Especially in this election year, the American voter
should see these groups and their many affiliate
organizations as they are--the newest insidious conspiracy of
political action committees and perhaps the newest multi-
million dollar manipulation of federal election laws.
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.
Ms. COLLINS. Mr. President, I ask unanimous consent that the order
for the quorum call be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. COLLINS. Mr. President, let me commend you for your leadership in
presiding this evening. I realize it has been a very long evening and
the Senator has been in the Chair for a long time.
Amendments Nos. 3722, as Modified, 3757, as Modified, 3762, as
Modified, 3778, as Modified, 3814, 3818, 3825, 3832, 3833, as Modified,
3836, 3841, 3859, as Modified, 3860, 3867, as Modified, 3901, 3910, as
Modified, 3923 en bloc
Ms. COLLINS. Mr. President, I have a series of amendments that have
been cleared on both sides of the aisle. I ask unanimous consent that
the list of amendments that I send to the desk be agreed to with the
modifications agreed to where indicated.
The PRESIDING OFFICER. Is there objection?
Mr. LIEBERMAN. No objection.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendments were agreed to, as follows:
amendment no. 3722
(Purpose: To facilitate the utilization of United States commercial
remote sensing space capabilities for filling imagery and geospatial
information requirements)
At the end of subtitle A of title II, add the following:
SEC. __. USE OF UNITED STATES COMMERCIAL REMOTE SENSING SPACE
CAPABILITIES FOR IMAGERY AND GEOSPATIAL
INFORMATION REQUIREMENTS.
(a) In General.--The National Intelligence Director shall
take actions to ensure, to the extent practicable, the
utilization of United States commercial remote sensing space
capabilities to fulfill the imagery and geospatial
information requirements of the intelligence community.
(b) Procedures for Utilization.--The National Intelligence
Director may prescribe procedures for the purpose of meeting
the requirement in subsection (a).
(c) Definitions.--In this section, the terms ``imagery''
and ``geospatial information'' have the meanings given such
terms in section 467 of title 10, United States Code.
amendment no. 3757
(Purpose: To require the Secretary of Homeland Security to report to
the Congress on the technological capabilities and equipment to
Transportation Security Administration field offices)
At the appropriate place, insert the following:
SEC. . TSA FIELD OFFICE INFORMATION TECHNOLOGY AND
TELECOMMUNICATIONS REPORT.
Within 90 days after the date of enactment of this Act, the
Secretary of Homeland Security shall transmit a report to the
Congress, which may be transmitted in classified and redacted
formats, setting forth--
(1) a descriptive list of each administrative and airport
site of the Transportation Security Administration, including
its location, staffing, and facilities;
(2) an analysis of the information technology and
telecommunications capabilities, equipment, and support
available at each such site, including--
(A) whether the site has access to broadband
telecommunications;
(B) whether the site has the ability to access
Transportation Security Administration databases directly;
(C) the means available to the site for communicating and
sharing information and other data on a real time basis with
the Transportation Security Administration's national,
regional, and State offices as well as with other
Transportation Security Administration sites;
(D) the means available to the site for communicating with
other Federal, State, and local government sites with
transportation security related responsibilities; and
(E) whether and to what extent computers in the site are
linked through a local area network or otherwise, and whether
the information technology resources available to the site
are adequate to enable it to carry out its functions and
purposes; and
(3) an assessment of current and future needs of the
Transportation Security Administration to provide adequate
information technology and telecommunications facilities,
equipment, and support to its sites, and an estimate of the
costs of meeting those needs.
amendment no. 3762
(Purpose: To improve information sharing by the national intelligence
centers)
On page 97, line 10, insert before the period the
following: ``, including through the establishment of
mechanisms for the sharing
[[Page S10352]]
of information and analysis among and between national
intelligence centers having adjacent or significantly
interrelated geographic regions or functional areas of
intelligence responsibility''.
amendment no. 3778
(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) Regulations.--The National Intelligence Director shall
prescribe regulations on the application of the authorities,
rights, and protections in and made applicable by subsections
(a), (b), and (c), to the personnel of the National
Intelligence Authority.
amendment no. 3814
(Purpose: To provide the sense of Congress that United States foreign
assistance should be provided to South Asia, Southeast Asia, West
Africa, the Horn of Africa, North and North Central Africa, the Arabian
peninsula, Central and Eastern Europe, and South America to prevent the
establishment of terrorist sanctuaries)
On page __, between lines __ and __, insert the following:
(2) regions of specific concern where United States foreign
assistance should be targeted to assist governments in
efforts to prevent the use of such regions as terrorist
sanctuaries are South Asia, Southeast Asia, West Africa, the
Horn of Africa, North and North Central Africa, the Arabian
peninsula, Central and Eastern Europe, and South America;
AMENDMENT NO. 3818, AS MODIFIED
At the appropriate place, insert:
SEC. __. NATIONWIDE INTEROPERABLE COMMUNICATIONS NETWORK.
(a) In General.--Within one year of enactment, the
Secretary of Homeland Security, in coordination with the
Federal Communications Commission and the National
Telecommunications and Information Administration, shall
complete a study assessing potential technical and
operational standards and protocols for a nationwide
interoperable communications network (referred to in this
section as the ``Network'') that may be used by Federal,
State, and local governmental and non-governmental public
safety, homeland security, and other first responder
personnel. The assessment shall be consistent with the
SAFECOM national strategy as developed by the public safety
community in cooperation with SAFECOM and the DHS
Interoperability Office. The Secretary shall report the
results of the study to the Senate Committee on Commerce,
Science, and Transportation, the Senate Committee on
Governmental Affairs, the House of Representatives Committee
on Energy and Commerce, and the House of Representatives
Select Committee on Homeland Security.
(b) Consultation and Use of Commercial Technologies.--In
assessing standards and protocols pursuant to paragraph (a),
the Secretary of Homeland Security shall--
(1) seek input from representatives of the user communities
regarding the operation and administration of the Network;
and
(2) consider use of commercial wireless technologies to the
greatest extent practicable.
amendment no. 3825
(Purpose: To permit reviews of criminal records of applicants for
private security officer employment)
At the appropriate place, insert the following:
SEC. __. PRIVATE SECURITY OFFICER EMPLOYMENT AUTHORIZATION
ACT OF 2004.
(a) Short Title.--This section may be cited as the
``Private Security Officer Employment Authorization Act of
2004''.
(b) Findings.--Congress finds that--
(1) employment of private security officers in the United
States is growing rapidly;
(2) private security officers function as an adjunct to,
but not a replacement for, public law enforcement by, among
other things, helping to protect critical infrastructure,
including hospitals, manufacturing facilities, defense and
aerospace contractors, nuclear power plants, chemical
companies, oil and gas refineries, airports, communication
facilities and operations, and others;
(3) the 9-11 Commission Report says that ``Private sector
preparedness is not a luxury; it is a cost of doing business
in the post-9/11 world. It is ignored at a tremendous
potential cost in lives, money, and national security'' and
endorsed adoption of the American National Standards
Institute's standard for private preparedness;
(4) part of improving private sector preparedness is
mitigating the risks of terrorist attack on critical
infrastructure by ensuring that private security officers who
protect those facilities are properly screened to determine
their suitability;
(5) the American public deserves the employment of
qualified, well-trained private security personnel as an
adjunct to sworn law enforcement officers; and
(6) private security officers and applicants for private
security officer positions should be thoroughly screened and
trained.
(c) Definitions.--In this section:
(1) Employee.--The term ``employee'' includes both a
current employee and an applicant for employment as a private
security officer.
(2) Authorized employer.--The term ``authorized employer''
means any person that--
(A) employs private security officers; and
(B) is authorized by regulations promulgated by the
Attorney General to request a criminal history record
information search of an employee through a State
identification bureau pursuant to this section.
(3) Private security officer.-- The term ``private security
officer''--
(A) means an individual other than an employee of a
Federal, State, or local government, whose primary duty is to
perform security services, full- or part-time, for
consideration, whether armed or unarmed and in uniform or
plain clothes (except for services excluded from coverage
under this section if the Attorney General determines by
regulation that such exclusion would serve the public
interest); but
(B) does not include--
(i) employees whose duties are primarily internal audit or
credit functions;
(ii) employees of electronic security system companies
acting as technicians or monitors; or
(iii) employees whose duties primarily involve the secure
movement of prisoners.
(4) Security services.--The term ``security services''
means acts to protect people or property as defined by
regulations promulgated by the Attorney General.
(5) State identification bureau.--The term ``State
identification bureau'' means the State entity designated by
the Attorney General for the submission and receipt of
criminal history record information.
(d) Criminal History Record Information Search.--
(1) In general.--
(A) Submission of fingerprints.--An authorized employer may
submit to the State identification bureau of a participating
State, fingerprints or other means of positive
identification, as determined by the Attorney General, of an
employee of such employer for purposes of a criminal history
record information search pursuant to this section.
(B) Employee rights.--
(i) Permission.--An authorized employer shall obtain
written consent from an employee to submit to the State
identification bureau of a participating State the request to
search the criminal history record information of the
employee under this section.
(ii) Access.--An authorized employer shall provide to the
employee confidential access to any information relating to
the employee received by the authorized employer pursuant to
this section.
(C) Providing information to the state identification
bureau.--Upon receipt of a request for a criminal history
record information search from an authorized employer
pursuant to this section, submitted through the State
identification bureau of a participating State, the Attorney
General shall--
(i) search the appropriate records of the Criminal Justice
Information Services Division of the Federal Bureau of
Investigation; and
(ii) promptly provide any resulting identification and
criminal history record information to the submitting State
identification bureau requesting the information.
(D) Use of information.--
(i) In general.--Upon receipt of the criminal history
record information from the Attorney General by the State
identification bureau, the information shall be used only as
provided in clause (ii).
(ii) Terms.--In the case of--
(I) a participating State that has no State standards for
qualification to be a private security officer, the State
shall notify an authorized employer as to the fact of whether
an employee has been--
(aa) convicted of a felony, an offense involving dishonesty
or a false statement if the conviction occurred during the
previous 10 years, or an offense involving the use or
attempted use of physical force against the person of another
if the conviction occurred during the previous 10 years; or
(bb) charged with a criminal felony for which there has
been no resolution during the preceding 365 days; or
(II) a participating State that has State standards for
qualification to be a private security officer, the State
shall use the information received pursuant to this section
in applying the State standards and shall only notify the
employer of the results of the application of the State
standards.
(E) Frequency of requests.--An authorized employer may
request a criminal history record information search for an
employee only once every 12 months of continuous employment
by that employee unless the authorized employer has good
cause to submit additional requests.
(2) Regulations.--Not later than 180 days after the date of
enactment of this Act, the
[[Page S10353]]
Attorney General shall issue such final or interim final
regulations as may be necessary to carry out this section,
including--
(A) measures relating to the security, confidentiality,
accuracy, use, submission, dissemination, destruction of
information and audits, and recordkeeping;
(B) standards for qualification as an authorized employer;
and
(C) the imposition of reasonable fees necessary for
conducting the background checks.
(3) Criminal penalties for use of information.--Whoever
knowingly and intentionally uses any information obtained
pursuant to this section other than for the purpose of
determining the suitability of an individual for employment
as a private security officer shall be fined under title 18,
United States Code, or imprisoned for not more than 2 years,
or both.
(4) User fees.--
(A) In general.--The Director of the Federal Bureau of
Investigation may--
(i) collect fees to process background checks provided for
by this section; and
(ii) establish such fees at a level to include an
additional amount to defray expenses for the automation of
fingerprint identification and criminal justice information
services and associated costs.
(B) Limitations.--Any fee collected under this subsection--
(i) shall, consistent with Public Law 101-515 and Public
Law 104-99, be credited to the appropriation to be used for
salaries and other expenses incurred through providing the
services described in such Public Laws and in subparagraph
(A);
(ii) shall be available for expenditure only to pay the
costs of such activities and services; and
(iii) shall remain available until expended.
(C) State costs.--Nothing in this section shall be
construed as restricting the right of a State to assess a
reasonable fee on an authorized employer for the costs to the
State of administering this section.
(5) State opt out.--A State may decline to participate in
the background check system authorized by this section by
enacting a law or issuing an order by the Governor (if
consistent with State law) providing that the State is
declining to participate pursuant to this paragraph.
amendment no. 3832
At the appropriate place, insert the following:
SEC. . COMMUNICATIONS INTEROPERABILITY.
(a) Definition.--As used in this section, the term
``equipment interoperability'' means the devices that support
the ability of public safety service and support providers to
talk with each other via voice and data on demand, in real
time, when needed, and when authorized.
(b) National Guidelines for Equipment Interoperability.--
Not later than one year after the date of enactment of this
Act, the Secretary of Homeland Security, after consultation
with the Federal Communications Commission and the National
Telecommunications and Information Administration, and other
appropriate representatives of Federal, State, and local
government and first responders, shall adopt, by regulation,
national goals and guideline for equipment interoperability
and related issues that--
(1) set short-term, mid-term, and long-term means and
minimum equipment performance guidelines for Federal
agencies, States, and local governments;
(2) recognize--
(A) the value, life cycle, and technical capabilities of
existing communications infrastructure;
(B) the need for cross-border interoperability between
States and nations;
(C) the unique needs of small, rural communities; and
(D) the interoperability needs for daily operations and
catastrophic events.
(c) National Equipment Interoperability Implementation
Plan.--
(1) Development.--Not later than 180 days of the completion
of the development of goals and guidelines under subsection
(b), the Secretary of Homeland Security shall develop an
implementation plan that--
(A) outlines the responsibilities of the Department of
Homeland Security; and
(B) focuses on providing technical and financial assistance
to States and local governments for interoperability planning
and implementation.
(2) Execution.--The Secretary shall execute the plan
developed under this subsection as soon as practicable.
(3) Reports.--
(A) Initial report.--Upon the completion of the plan under
subsection (c), the Secretary shall submit a report that
describes such plan to--
(i) the Committee on Governmental Affairs of the Senate;
(ii) the Committee on Environment and Public Works of the
Senate;
(iii) the Committee on Commerce, Science, and
Transportation of the Senate;
(iv) the Select Committee on Homeland Security of the House
of Representatives; and
(v) the Committee on Energy and Commerce of the House of
Representatives.
(B) Annual report.--Not later than 1 year after the
submission of the report under subparagraph (A), and annually
thereafter, the Secretary shall submit a report to the
committees referred to in subparagraph (A) that describes the
progress made in implementing the plan developed under this
subsection.
(d) International Interoperability.--Not later than 1 year
after the date of enactment of this Act, the President shall
establish a mechanism for coordinating cross-border
interoperability issues between--
(1) the United States and Canada; and
(2) the United States and Mexico.
(e) Authorization of Appropriations.--There are authorized
to be appropriated for each of the fiscal years 2005 through
2009--
(1) such sums as may be necessary to carry out subsection
(b);
(2) such sums as may be necessary to carry out subsection
(c); and
(3) such sums as may be necessary to carry out subsection
(d).
amendment no. 3833, as modified
(Purpose: To require a report on the implementation of recommendations
of the Defense Science Board on preventing and defending against
clandestine nuclear attack)
On page 153, between lines 2 and 3, insert the following:
SEC. 207. REPORT ON IMPLEMENTATION OF RECOMMENDATIONS OF
DEFENSE SCIENCE BOARD ON PREVENTING AND
DEFENDING AGAINST CLANDESTINE NUCLEAR ATTACK.
(a) Finding.--Congress finds that the June 2004 report of
the Defense Science Board Task Force on Preventing and
Defending Against Clandestine Nuclear Attack--
(1) found that it would be easy for adversaries to
introduce and detonate a nuclear explosive clandestinely in
the United States;
(2) found that clandestine nuclear attack and defense
against such attack should be treated as an emerging aspect
of strategic warfare and that those matters warrant national
and Department of Defense attention; and
(3) called for a serious national commitment to a
multidepartment program to create a multi-element, layered,
global, civil/military complex of systems and capabilities
that can greatly reduce the likelihood of a successful
clandestine attack, achieving levels of protection effective
enough to warrant the effort.
(b) Report.--Not later than 6 months after the date of the
enactment of this Act, the Secretary of Defense shall, in
consultation with the Secretary of Energy, submit to the
Committees on Armed Services of the Senate and the House of
Representatives a report on the actions proposed to be taken
to address the recommendations of the Defense Science Board
Task Force on Preventing and Defending Against Clandestine
Nuclear Attack.
amendment no. 3836
(Purpose: To authorize the Secretary of Homeland Security to award
grants to improve first responder communications systems)
At the appropriate place, insert the following:
SEC. __. COMMUNICATION SYSTEM GRANTS.
(a) In General.--The Secretary of Homeland Security may
award grants, on a competitive basis, to States, local
governments, local law enforcement agencies, and local fire
departments to--
(1) improve communication systems to allow for real time,
interoperable communication between State and local first
responders; or
(2) purchase communication systems that allow for real
time, interoperable communication between State and local
first responders.
(b) Application.--Any State, local government, local law
enforcement agency, or local fire department desiring a grant
under this section shall submit an application to the
Secretary at such time, in such manner, and containing such
information as the Secretary may reasonably require.
(c) Authorization of Appropriations.--There are authorized
to be appropriated such sums necessary for each of the fiscal
years 2005 through 2009 to carry out the provisions of this
section.
amendment no. 3859
On page 94, between lines 14 and 15, insert the following:
(3) There may be established under this subsection one or
more national intelligence centers having intelligence
responsibility for the following:
(A) The nuclear terrorism threats confronting the United
States.
(B) The chemical terrorism threats confronting the United
States.
(C) The biological terrorism threats confronting the United
States.
On page 94, line 15, strike ``(3)'' and insert ``(4)''.
amendment no. 3860
(Purpose: To improve the working relationship between the intelligence
community and the National Infrastructure Simulation and Analysis
Center)
At the appropriate place, insert the following:
SEC. __. INTELLIGENCE COMMUNITY USE OF NISAC CAPABILITIES.
The National Intelligence Director shall establish a formal
relationship, including information sharing, between the
intelligence community and the National Infrastructure
Simulation and Analysis Center. Through this relationship,
the intelligence community shall take full advantage of the
capabilities of the National Infrastructure Simulation and
Analysis Center, particularly vulnerability and consequence
analysis, for real time response to reported threats and long
term planning for projected threats.
amendment no. 3867, as modified
At the appropriate place, insert the following:
[[Page S10354]]
SEC. __. TERRORISM FINANCING.
(a) Report on Terrorist Financing.--
(1) In general.--Not later than 180 days after the date of
enactment of this Act, the President, acting through the
Secretary of the Treasury, shall submit to Congress a report
evaluating the current state of United States efforts to
curtail the international financing of terrorism.
(2) Contents.--The report required by paragraph (1) shall
evaluate and make recommendations on--
(A) the effectiveness and efficiency of current United
States governmental efforts and methods to detect, track,
disrupt, and stop terrorist financing;
(B) the relationship between terrorist financing and money
laundering, including how the laundering of proceeds related
to illegal narcotics or foreign political corruption may
contribute to terrorism or terrorist financing;
(C) the nature, effectiveness, and efficiency of current
efforts to coordinate intelligence and agency operations
within the United States Government to detect, track,
disrupt, and stop terrorist financing, including identifying
who, if anyone, has primary responsibility for developing
priorities, assigning tasks to agencies, and monitoring the
implementation of policy and operations;
(D) the effectiveness and efficiency of efforts to protect
the critical infrastructure of the United States financial
system, and ways to improve the effectiveness of financial
institutions;
(E) ways to improve multilateral and international
governmental cooperation on terrorist financing, including
the adequacy of agency coordination within the United States
related to participating in international cooperative efforts
and implementing international treaties and compacts; and
(F) ways to improve the setting of priorities and
coordination of United States efforts to detect, track,
disrupt, and stop terrorist financing, including
recommendations for changes in executive branch organization
or procedures, legislative reforms, additional resources, or
use of appropriated funds.
(b) Postemployment Restriction for Certain Bank and Thrift
Examiners.--Section 10 of the Federal Deposit Insurance Act
(12 U.S.C. 1820) is amended by adding at the end the
following:
``(k) One-year Restrictions on Federal Examiners of
Financial Institutions.--
``(1) In general.--In addition to other applicable
restrictions set forth in title 18, United States Code, the
penalties set forth in paragraph (6) of this subsection shall
apply to any person who--
``(A) was an officer or employee (including any special
Government employee) of a Federal banking agency or a Federal
reserve bank;
``(B) served 2 or more months during the final 12 months of
his or her employment with such agency or entity as the
senior examiner (or a functionally equivalent position) of a
depository institution or depository institution holding
company with continuing, broad responsibility for the
examination (or inspection) of that depository institution or
depository institution holding company on behalf of the
relevant agency or Federal reserve bank; and
``(C) within 1 year after the termination date of his or
her service or employment with such agency or entity,
knowingly accepts compensation as an employee, officer,
director, or consultant from--
``(i) such depository institution, any depository
institution holding company that controls such depository
institution, or any other company that controls such
depository institution; or
``(ii) such depository institution holding company or any
depository institution that is controlled by such depository
institution holding company.
``(2) Definitions.--For purposes of this subsection--
``(A) the term `depository institution' includes an
uninsured branch or agency of a foreign bank, if such branch
or agency is located in any State; and
``(B) the term `depository institution holding company'
includes any foreign bank or company described in section
8(a) of the International Banking Act of 1978.
``(3) Rules of construction.--For purposes of this
subsection, a foreign bank shall be deemed to control any
branch or agency of the foreign bank, and a person shall be
deemed to act as a consultant for a depository institution,
depository institution holding company, or other company,
only if such person directly works on matters for, or on
behalf of, such depository institution, depository
institution holding company, or other company.
``(4) Regulations.--
``(A) In general.--Each Federal banking agency shall
prescribe rules or regulations to administer and carry out
this subsection, including rules, regulations, or guidelines
to define the scope of persons referred to in paragraph
(1)(B).
``(B) Consultation required.--The Federal banking agencies
shall consult with each other for the purpose of assuring
that the rules and regulations issued by the agencies under
subparagraph (A) are, to the extent possible, consistent and
comparable and practicable, taking into account any
differences in the supervisory programs utilized by the
agencies for the supervision of depository institutions and
depository institution holding companies.
``(5) Waiver.--
``(A) Agency authority.--A Federal banking agency may grant
a waiver, on a case by case basis, of the restriction imposed
by this subsection to any officer or employee (including any
special Government employee) of that agency, and the Board of
Governors of the Federal Reserve System may grant a waiver of
the restriction imposed by this subsection to any officer or
employee of a Federal reserve bank, if the head of such
agency certifies in writing that granting the waiver would
not affect the integrity of the supervisory program of the
relevant Federal banking agency.
``(B) Definition.--For purposes of this paragraph, the head
of an agency is--
``(i) the Comptroller of the Currency, in the case of the
Office of the Comptroller of the Currency;
``(ii) the Chairman of the Board of Governors of the
Federal Reserve System, in the case of the Board of Governors
of the Federal Reserve System;
``(iii) the Chairperson of the Board of Directors, in the
case of the Corporation; and
``(iv) the Director of the Office of Thrift Supervision, in
the case of the Office of Thrift Supervision.
``(6) Penalties.--
``(A) In general.--In addition to any other administrative,
civil, or criminal remedy or penalty that may otherwise
apply, whenever a Federal banking agency determines that a
person subject to paragraph (1) has become associated, in the
manner described in paragraph (1)(C), with a depository
institution, depository institution holding company, or other
company for which such agency serves as the appropriate
Federal banking agency, the agency shall impose upon such
person one or more of the following penalties:
``(i) Industry-wide prohibition order.--The Federal banking
agency shall serve a written notice or order in accordance
with and subject to the provisions of section 8(e)(4) for
written notices or orders under paragraphs (1) or (2) of
section 8(e), upon such person of the intention of the
agency--
``(I) to remove such person from office or to prohibit such
person from further participation in the conduct of the
affairs of the depository institution, depository institution
holding company, or other company for a period of up to 5
years; and
``(II) to prohibit any further participation by such
person, in any manner, in the conduct of the affairs of any
insured depository institution for a period of up to 5 years.
``(ii) Civil monetary fine.--The Federal banking agency
may, in an administrative proceeding or civil action in an
appropriate United States district court, impose on such
person a civil monetary penalty of not more than $250,000. In
lieu of an action by the Federal banking agency under this
clause, the Attorney General of the United States may bring a
civil action under this clause in the appropriate United
States district court. Any administrative proceeding under
this clause shall be conducted in accordance with section
8(i).
``(B) Scope of prohibition order.--Any person subject to an
order issued under subparagraph (A)(i) shall be subject to
paragraphs (6) and (7) of section 8(e) in the same manner and
to the same extent as a person subject to an order issued
under such section.
``(C) Definitions.--Solely for purposes of this paragraph,
the `appropriate Federal banking agency' for a company that
is not a depository institution or depository institution
holding company shall be the Federal banking agency on whose
behalf the person described in paragraph (1) performed the
functions described in paragraph (1)(B).''.
(c) Postemployment Restriction for Certain Credit Union
Examiners.--Section 206 of the Federal Credit Union Act (12
U.S.C. 1786) is amended by adding at the end the following:
``(w) One-year Restrictions on Federal Examiners of Insured
Credit Unions.--
``(1) In general.--In addition to other applicable
restrictions set forth in title 18, United States Code, the
penalties set forth in paragraph (5) of this subsection shall
apply to any person who--
``(A) was an officer or employee (including any special
Government employee) of the Administration;
``(B) served 2 or more months during the final 12 months of
his or her employment with the Administration as the senior
examiner (or a functionally equivalent position) of an
insured credit union with continuing, broad responsibility
for the examination (or inspection) of that insured credit
union on behalf of the Administration; and
``(C) within 1 year after the termination date of his or
her service or employment with the Administration, knowingly
accepts compensation as an employee, officer, director, or
consultant from such insured credit union.
``(2) Rule of construction.--For purposes of this
subsection, a person shall be deemed to act as a consultant
for an insured credit union only if such person directly
works on matters for, or on behalf of, such insured credit
union.
``(3) Regulations.--
``(A) In general.--The Board shall prescribe rules or
regulations to administer and carry out this subsection,
including rules, regulations, or guidelines to define the
scope of persons referred to in paragraph (1)(B).
``(B) Consultation.--In prescribing rules or regulations
under this paragraph, the Board shall, to the extent it deems
necessary, consult with the Federal banking
[[Page S10355]]
agencies (as defined in section 3 of the Federal Deposit
Insurance Act) on regulations issued by such agencies in
carrying out section 10(k) of the Federal Deposit Insurance
Act.
``(4) Waiver.--
``(A) Agency authority.--The Board may grant a waiver, on a
case by case basis, of the restriction imposed by this
subsection to any officer or employee (including any special
Government employee) of the Administration if the Chairman
certifies in writing that granting the waiver would not
affect the integrity of the supervisory program of the
Administration.
``(5) Penalties.--
``(A) In general.--In addition to any other administrative,
civil, or criminal remedy or penalty that may otherwise
apply, whenever the Board determines that a person subject to
paragraph (1) has become associated, in the manner described
in paragraph (1)(C), with an insured credit union, the Board
shall impose upon such person one or more of the following
penalties:
``(i) Industry-wide prohibition order.--The Board shall
serve a written notice or order in accordance with and
subject to the provisions of subsection (g)(4) for written
notices or orders under paragraphs (1) or (2) of subsection
(g), upon such person of the intention of the Board--
``(I) to remove such person from office or to prohibit such
person from further participation in the conduct of the
affairs of the insured credit union for a period of up to 5
years; and
``(II) to prohibit any further participation by such
person, in any manner, in the conduct of the affairs of any
insured credit union for a period of up to 5 years.
``(ii) Civil monetary fine.--The Board may, in an
administrative proceeding or civil action in an appropriate
United States district court, impose on such person a civil
monetary penalty of not more than $250,000. In lieu of an
action by the Board under this clause, the Attorney General
of the United States may bring a civil action under this
clause in the appropriate United States district court. Any
administrative proceeding under this clause shall be
conducted in accordance with subsection (k).
``(B) Scope of prohibition order.--Any person subject to an
order issued under this subparagraph (A)(i) shall be subject
to paragraphs (5) and (7) of subsection (g) in the same
manner and to the same extent as a person subject to an order
issued under subsection (g).''.
(d) Effective Date.--Notwithstanding section 341,
subsection (a) shall become effective on the date of
enactment of this Act, and the amendments made by subsections
(b) and (c) shall become effective at the end of the 12-month
period beginning on the date of enactment of this Act,
whether or not final regulations are issued in accordance
with the amendments made by this section as of that date of
enactment.
(e) Repeal of Duplicative Provision.--Section __16(c) of
this Act, entitled ``Report on Terrorist Financing'' is
repealed, and shall have no force or effect, effective on the
date of enactment of this Act.
amendment no. 3901
(Purpose: To require certain overdue reports relating to maritime
security to be transmitted to the Congress within 90 days, and for
other purposes)
At the appropriate place, insert the following:
SEC. __. DEADLINE FOR COMPLETION OF CERTAIN PLANS, REPORTS,
AND ASSESSMENTS.
(a) Strategic Plan Reports.--Within 90 days after the date
of enactment of this Act, the Secretary of Homeland Security
shall transmit to the Congress--
(1) a report on the status of the National Maritime
Transportation Security Plan required by section 70103(a) of
title 46, United States Code, which may be submitted in
classified and redacted format;
(2) a comprehensive program management plan that identifies
specific tasks to be completed and deadlines for completion
for the transportation security card program under section
70105 of title 46, United States Code that incorporates best
practices for communicating, coordinating, and collaborating
with the relevant stakeholders to resolve relevant issues,
such as background checks;
(3) a report on the status of negotiations under section
103 of the Maritime Transportation Security Act of 2002 (46
U.S.C. 70111 note);
(4) the report required by section 107(b) of the Maritime
Transportation Security Act of 2002 (33 U.S.C. 1226 note);
and
(5) a report on the status of the development of the system
and program mandated by section 111 of the Maritime
Transportation Security Act of 2002 (46 U.S.C. 70116 note).
(b) Other Reports.--Within 90 days after the date of
enactment of this Act--
(1) the Secretary of Homeland Security shall transmit to
the Congress--
(A) a report on the establishment of the National Maritime
Security Advisory Committee appointed under section 70112 of
title 46, United States Code; and
(B) a report on the status of the program established under
section 70116 of title 46, United States Code, to evaluate
and certify security systems of international intermodal
transportation;
(2) the Secretary of Transportation shall transmit to the
Congress the annual report required by section 905 of the
International Maritime and Port Security Act (46 U.S.C. App.
1802) that includes information that should have been
included in the last preceding annual report that was due
under that section; and
(3) the Commandant of the United States Coast Guard shall
transmit to Congress the report required by section 110(b) of
the Maritime Transportation Security Act of 2002 (46 U.S.C.
70101 note).
(d) Effective Date.--Notwithstanding any other provision of
this Act, this section takes effect on the date of enactment
of this Act.
amendment no. 3910
At the appropriate place, insert the following:
SEC. __. REPORT ON INTERNATIONAL AIR CARGO THREATS.
(a) Report.--Within 180 days after the date of enactment of
this Act, the Secretary of Homeland Security, in coordination
with the Secretary of Defense and the Administrator of the
Federal Aviation Administration, shall submit a report to the
Committee on Commerce, Science, and Transportation and the
Committee on Governmental Affairs of the Senate and the
Committee on Transportation and Infrastructure and the Select
Committee on Homeland Security of the House of
Representatives that contains the following:
(1) A description of the current procedures in place to
address the threat of an inbound all-cargo aircraft from
outside the United States that intelligence sources indicate
could carry explosive, incendiary, chemical, biological or
nuclear devices.
(2) An analysis of the potential for establishing secure
facilities along established international aviation routes
for the purposes of diverting and securing aircraft described
in paragraph (1).
(b) Report Format.--The Secretary may submit all, or part,
of the report required by this section in classified and
redacted form if the Secretary determines that it is
appropriate or necessary.
amendment no. 3923
(Purpose: To ensure the balance of privacy and civil liberties)
On page 154, strike lines 1 through 3 and insert the
following:
(1) analyze and review actions the executive branch takes
to protect the Nation from terrorism, ensuring that the need
for such actions is balanced with the need to protect privacy
and civil liberties; and
On page 155, line 6 strike beginning with ``has'' through
line 9 and insert the following: ``has established--
``(i) that the need for the power is balanced with the need
to protect privacy and civil liberties;''.
On page 166, strike lines 4 through 6 and insert the
following: ``element has established--
``(i) that the need for the power is balanced with the need
to protect privacy and civil liberties;''.
Amendment No. 3867
Mr. LEVIN. Mr. President, I thank the managers of the intelligence
reform bill, S. 2845, for accepting an amendment offered by myself and
Senator Coleman on the issue of terrorist financing. This amendment,
amendment No. 3867, was developed in coordination with Senators Collins
and Lieberman of the Governmental Affairs Committee and Senators Shelby
and Sarbanes of the Banking Committee. I thank each of my colleagues
for their guidance and assistance which has enabled us to fashion a
good amendment with bipartisan support and offer it to the bill today.
This amendment is the result of an extensive investigation by the
Permanent Subcommittee on Investigations, initiated at my request, into
money laundering allegations involving Riggs Bank, a nationally
chartered bank located right here in the Nation's Capital. Our
investigation found a bank which routinely allowed highly questionable
transactions with few questions asked. Some of these transactions
involved millions of dollars in cash or suspicious wire transfers;
others have raised serious concerns about possible terrorist financing.
We live in a post-9/11 world. After the attack on America, we
strengthened our antimoney laundering laws, in part, because Osama bin
Laden boasted that his modern new recruits knew the ``cracks'' in
``Western financial systems'' like they knew the ``lines in their
hands.'' That chilling statement helped fuel a new effort to strengthen
our defenses against terrorists, corrupt dictators, and others who
would use our financial systems against us. Part of that effort was
Congress' enactment of the PATRIOT Act which, in title III,
strengthened U.S. laws to stop money laundering, foreign corruption,
and terrorist financing.
Even before the PATRIOT Act, we had laws and regulations to stop
money laundering. In fact, since 1987, the Office of the Comptroller of
the
[[Page S10356]]
Currency, OCC, has required nationally chartered banks to establish
anti-money laundering programs to ensure the banking system is not
misused by criminals. The PATRIOT Act was intended to build on that
existing foundation to further strengthen our defenses against money
launderers.
Our investigation found that Riggs Bank ignored its antimoney
laundering obligations before the PATRIOT Act, and continued to ignore
them afterward. We found that the bank didn't get serious in part
because, in the past, when bank regulators pointed out problems with
Riggs' antimoney laundering controls, if the bank promised to do
better, the regulators let it go. The regulators tolerated the bank's
weak antimoney laundering program, continued to accept excuses when
deficiencies were not corrected, and continued to hold off on tough
enforcement measures.
We were particularly surprised to learn that the OCC examiner-in-
charge who oversaw Riggs Bank for 4 years, from 1998 to 2002, appeared
to function at times as more of an advocate for the bank than an arms-
length regulator. The investigation found, for example, that in 2001,
the examiner-in-charge advised more senior OCC personnel against taking
a formal enforcement action against Riggs for its lax antimoney
laundering program, because the bank had promised to do better. In
2002, after subordinate examiners had uncovered troubling transactions
and bank accounts involving Augusto Pinochet, the former President of
Chile, and actions by Riggs to hide those accounts from the OCC for 2
years, the examiner-in-charge ordered the examination materials not to
be included in the OCC's electronic database, even though such
materials are normally placed in that database. The examination
materials were instead saved in paper form, making it much more
difficult for subsequent examiners to learn about the Pinochet
examination. About a month after giving this order, that same Examiner-
in-Charge was offered a job at Riggs. He later retired from the OCC and
3 days after retiring, took a senior position with Riggs.
These actions--advising against a formal enforcement action,
suppressing the Pinochet examination materials, and accepting a job
offer at the bank he regulated, among others--raise serious conflict of
interest concerns. Federal bank examiners are our first line of defense
against money laundering and terrorist financing at U.S. banks, and we
can't allow their independence to be undermined by the lure of a job at
the banks they oversee.
The 9/11 Commission report notes the important role that stopping
terrorist financing plays in our counterterrorism efforts. It
explicitly recommends that U.S. antiterrorist financing programs remain
``front and center in U.S. counterterrorism efforts.'' Subcommittee
hearings and a report released by my staff in July of this year support
that recommendation and offer a detailed legislative record
demonstrating the need for new measures to further strengthen federal
oversight of the antimoney laundering programs at our financial
institutions.
The Levin-Coleman amendment would strengthen U.S. anti-terrorist
financing efforts in two ways. First, it would require the President,
through the Treasury Secretary, to take a hard look at the current
state of U.S. efforts to combat terrorist financing and issue a report
in 6 months with recommendations for reforms. One of the most important
issues to be addressed is improving our process for setting priorities
and coordinating U.S. agency efforts to detect, track, disrupt, and
stop terrorist financing. It is far from clear today, when it comes to
combating terrorist financing, what U.S. agency official, if any, has
primary responsibility for developing priorities, assigning tasks to
agencies, and monitoring the implementation of policy and operations.
Secondly, the amendment would impose a 1-year cooling off period
before a senior Federal examiner may take a job with a financial
institution that he or she was responsible for overseeing. This cooling
off period is similar to one already in place for Federal procurement
officials under 41 U.S. 423(d). Members of Congress, Congressional
staff, and many other Federal employees already operate under cooling
off periods, which have been in place for years and have had a
beneficial effect. Our amendment would apply a new cooling off period
to senior federal bank examiners like the OCC examiner who oversaw
Riggs.
John D. Hawke, Jr., U.S. Comptroller of the Currency and head of the
OCC, which served as the primary regulator of Riggs, has expressed
strong support for legislation imposing a 1-year cooling off period for
senior Federal examiners, stating in a memorandum to OCC staff that
``when an OCC examiner, with no break in continuity, takes employment
with a bank he or she has been supervising, there are inevitably
questions that will be asked and suspicions raised.'' He apparently
wanted to impose a cooling off period on OCC examiners 4 years ago but
was advised that he lacked the statutory authority to do so. The report
released by my subcommittee staff in July also recommends enacting a 1-
year cooling off period for bank examiners. Similar legislation,
introduced in the House of Representatives by Rep. Luis Gutierrez, D-
Ill., and Rep. Sue Kelly, R-NY, was recently approved by the House
Financial Services Committee for inclusion in the House intelligence
reform bill.
The Levin-Coleman amendment would close the revolving door and
eliminate potential and actual conflicts of interest for our federal
examiners. It would also provide a fresh look at our country's
antiterrorist financing efforts. I thank my colleagues on both sides of
the aisle for supporting this amendment.
A brief section-by-section explanation of the amendment follows.
Subsection (a) directs the Treasury Department to prepare a report
within 6 months evaluating the current state of U.S. efforts to curtail
the international financing of terrorism. The report is required to
address the effectiveness and efficiency of current Federal programs to
detect, track, disrupt, and stop terrorist financing; the relationship
between terrorist financing and money laundering; the nature,
effectiveness and efficiency of current efforts to coordinate
intelligence and agency operations related to terrorist financing,
including identifying which agency official, if any, has primary
responsibility to develop priorities, assign tasks to agencies and
monitor the implementation of policy and operations related to
terrorism; the effectiveness and efficiency of efforts to protect the
critical infrastructure of the U.S. financial system; ways to improve
the effectiveness of financial institutions; ways to improve
multilateral and international governmental cooperation on terrorist
financing; and recommendations for reforms.
Subsection (b) imposes a 1-year cooling off period on senior
examiners at the OCC, Federal Reserve Banks, Federal Deposit Insurance
Corporation, Office of Thrift Supervision, and National Credit Union
Administration before a senior examiner can take a job at a financial
institution that he or she oversaw. The subsection does so by
establishing a new subsection (k) in the statutes applicable to these
agencies.
The new subsection (k) contains language that was drawn from two sets
of postemployment provisions now in the federal code, the provisions in
section 207 of title 18 applicable to a variety of senior federal
employees and the provisions in section 423(d) of title 41 applicable
to senior Federal procurement officials. For example, the new
subsection (k) draws on the ``knowing'' standard used in the section
207 provisions, and the ``compensation'' language that appears in
section 423(d).
The new subsection (k) is intended to apply only to senior examiners
who have a meaningful relationship with a financial institution, such
as an examiner-in-charge or a senior examiner with dedicated
responsibility to oversee a particular institution. It is not intended
to apply to less senior examiners who may examine or inspect dozens of
financial institutions in a single year without developing a sustained
relationship with any one institution. It is also not intended to apply
to persons holding supervisory positions that do not involve routine
interactions with an institution for purposes of examining or
inspecting the institution's books or operations. The provision may
apply to more than one senior examiner at the same financial
institution, and is not limited to examiners with an
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office at the site of the financial institution or to examiners who
spend 100 percent of their time on a single institution.
Each Federal banking agency is directed to issue rules, regulations,
and guidance to delineate the personnel to which this postemployment
restriction applies. Each agency head also has authority, on a case-by-
case basis, to waive the postemployment restriction for a particular
individual if the waiver would not hurt the integrity of the agency's
supervisory program. It is intended that the agency head issue these
waivers personally, without delegating the waiver authority to another
official, to ensure careful usage.
The new subsection (k) authorizes two types of penalties for senior
examiners who violate the 1-year cooling off period. These two
penalties are in addition to any other administrative, civil, or
criminal remedy or penalty that may be available to the United States
or any other person for the same conduct. The first penalty is an
industry-wide employment ban which requires the relevant agency to
remove the affected individual from the financial institution and
prohibit them from employment at any insured financial institution for
up to 5 years. The second penalty authorizes the agency to impose a
civil monetary fine on the individual of up to $250,000. This fine
would have to be imposed either in a Federal court proceeding or in an
administrative proceeding that accords with the agency's administrative
rules for imposing civil monetary penalties. The provision also
authorizes the Attorney General to impose a civil monetary penalty if
an agency does not, but prohibits both from doing so.
The requirement for a 1-year cooling off period is intended to become
effective one year after the date of the enactment of this act, whether
or not any agency issues implementing regulations to carry out the
act's requirements.
Mr. COLEMAN. Mr. President, first of all, I thank Chairman Collins
and ranking Member Senator Lieberman, for their diligence and hard work
on the National Intelligence Reform bill. I would like to say a few
words on the Levin-Coleman amendment on terrorist financing. Without
question, financial institutions are vital to our economy.
Unfortunately, banks can also be used as conduits for terrorist
financing and money laundering.
In July, 2004, as chairman of the Permanent Subcommittee on
Investigations, I held a hearing on suspicious financial activity in
accounts handled by Riggs Bank. The subcommittee uncovered clear
evidence of poor bank compliance and lax oversight regarding Federal
laws, designed to protect the integrity of the international financial
system.
Chairman Collins is currently looking at certain Saudi Arabian
accounts that may have benefited two of the September 11, 2001
hijackers. I commend her diligence in expanding our investigation and
look forward to the results of her investigation.
Equally disturbing, PSI's investigation demonstrated that Federal
banking regulators took far too long to implement proper controls and
procedures to identify, monitor, and combat money laundering,
suspicious activity, and terrorist financing. In particular, I was
troubled by the actions of a former senior bank examiner of Riggs Bank
who began to work for Riggs Bank immediately after retiring from the
Office of Comptroller of the Currency. Prior to leaving Riggs Bank,
this examiner apparently limited findings of accounts owned by Augusto
Pinochet contrary to established policies. Upon taking employment at
Riggs Bank, this former examiner attended numerous meetings with bank
regulators such that the potential for undue influence was less than to
be desired.
Certain provisions of this legislation will close the revolving door
between senior examiners and the financial institutions they examine,
by requiring a cooling off period of 1 year before taking employment at
the financial institutions they previously regulated.
In a post-9/11 world, we need to ensure that financial institutions
and Federal banking regulators uphold Federal banking statutes,
including the Bank Secrecy Act and the Patriot Act. This legislation
will maintain the separation between Federal banking regulators and
financial institutions. Given our concern for terrorist financing, and
our heavy reliance on the integrity of the financial system, reducing
the potential of harm is necessary because the stakes are too high if
problems go uncorrected. I hope my colleagues will all join me in
support of this amendment.
Mr. JEFFORDS. Mr. President, on the morning of September 14, 2001, I
toured the Pentagon with officials from the Federal Emergency
Management Agency, FEMA. I was so impressed, that on the morning of
September 11, in the hours following an unspeakable tragedy, first
responders and rescue workers from different departments were able to
work as one great team to extinguish the fires, to help the injured,
and to save lives. This first impression only tells half of the real
story. In actuality, the bravery and selflessness of the firefighters,
emergency medical technicians, and police officers were hindered by a
lack of interoperability between their communications systems. I spoke
with workers at the Pentagon who experienced this limitation firsthand.
It's inconceivable to me that members of fire departments and emergency
agencies from Fairfax and Arlington Counties, the District of Columbia,
and Montgomery County were held back because of equipment
incompatibility.
The lack of adequate communications equipment was not only an
unnecessary impediment to response operations in and among units on
duty across the Potomac at the Pentagon, but has also been an obstacle
to other emergencies. In March 2002, I chaired an Environment and
Public Works Committee hearing to address the budget needs of FEMA. At
the hearing, then-Director Joe Allbaugh testified that:
This problem of limited interoperability is especially
frustrating in the area of communications. While at Ground
Zero for several days, I personally witnessed first
responders passing notes, handwritten notes, back and forth
to one another as the most reliable, effective means of
communication. On September 11 and in other emergency
situations, seamless communication interoperability would
have saved lives.
Today, more than 3 years after the attacks of September 11, the
Senate is still debating the issues of interoperability and sufficient
communications capabilities.
Interoperability is not only an issue during times of extreme
national distress, whether brought on by a terrorist attack or a
natural disaster. On August 19, 1997, residents and police officers
from northern Vermont and New Hampshire were faced with tragedy when
Carl Draga began a shooting spree, killing four and wounding three
others, before being killed in an standoff with police. Throughout that
sad day, officers from the Vermont and New Hampshire State Police and a
New Hampshire Fish and Game warden chased Draga across the Connecticut
River from New Hampshire to Vermont and back again to New Hampshire.
Compounding the difficulty of pursuing a fugitive across State lines,
was the lack of interoperability between the departments.
Communications were hampered by the technical limitations of the radios
and other equipment.
Last week, the Senate unanimously adopted amendments that will
provide for a higher priority for public safety in terms of Spectrum
allocation. My amendment will further address the needs of first
responders. My amendment will establish National Interoperability
Standards and a National Interoperability Implementation Plan to put
those standards into place. Specifically, the Department of Homeland
Security, DHS, will, no later than 1 year after the enactment of this
bill, adopt interoperability goals and standards to fully assess and
evaluate the technical needs of first responders for more routine
operations and for catastrophic events like those we suffered on
September 11, 2001. After those goals and standards are developed, the
DHS will create an implementation plan, and will report to the Congress
on its plan and its progress. This will ensure that as the Federal
Government, States, and localities spend money on interoperability, we
will all be working in the same direction, toward one set of goals,
with measurable results.
My amendment also requires that the DHS establish a means of
coordinating international interoperability. For States like Vermont,
which share an international borer, it is imperative
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that first responders in both nations communicate with each other.
We must be prepared for the future, and we must give our first
responders the tools they need to perform their duties. My amendment
will give the DHS the direction and authority to make our country
safer.
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