Congressional Record: December 8, 2004 (Senate)
Page S11939-S12010
INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF 2004--CONFERENCE
REPORT
The PRESIDENT pro tempore. Under the previous order, the Senate will
proceed to consideration of the conference report to accompany S. 2845
which the clerk will report.
The legislative clerk read as follows:
The committee of conference on the disagreeing votes of the
two Houses on the amendment of the House to the bill (S.
2845) to reform the intelligence community and the
intelligence and intelligence-related activities of the
United States Government, and for other purposes, having met,
have agreed that the Senate recede from its disagreement to
the amendment of the House and agree to the same with an
amendment, and the House agree to the same, signed by a
majority of the conferees on the part of both Houses.
(The conference report is printed in the House proceedings of the
Record of December 7, 2004.)
The PRESIDENT pro tempore. The majority leader.
Mr. FRIST. I suggest the absence of a quorum.
The PRESIDENT pro tempore. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. FRIST. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDENT pro tempore. Without objection, it is so ordered.
Mr. FRIST. Mr. President, in a discussion with the Democratic
leadership, we have come to an agreement that gives us a pretty good
template for the organization during the course of the day. This will
be useful, and I will ask unanimous consent shortly to allocate time
for the people who have come forward and said they would like to speak
prior to the vote.
As part of this, the managers will have time right before the vote--
up to 30 minutes, but probably that much time will not be used before
the vote--to add closing statements.
I ask unanimous consent that debate on the conference report be
limited to the list below:
Senator Collins will be controlling 45 minutes; Senator Lieberman, 45
minutes; Senator Byrd, 120 minutes, to begin at 12:30 p.m.; Senator
Stevens, 5 minutes; Senator Roberts, 10 minutes; Senator Rockefeller,
10 minutes; Senator Durbin, 15 minutes; Senator Warner, 30 minutes;
Senator Levin, 15 minutes; Senator Graham of Florida, 15 minutes;
Senator Coleman, 10 minutes; Senator Carper, 5 minutes; Senator
Specter, 20 minutes, and his comments will follow Senator Lieberman's
comments this morning.
I further ask that following the use or yielding back of the time,
the Senate proceed to a vote on the adoption of the conference report,
with no intervening action or debate.
Mr. REID. Mr. President, reserving the right to object, I will ask a
couple of things: One, that the time for quorum calls run off of the
time equally against everybody. I suggest that those people who have
time come over and use it. Senator Byrd will be here at 12:30. That
time is locked in for 2 hours. I think this is fair and reasonable. I
will also ask the distinguished majority leader if we will be able to--
this vote is not close or controversial in any way, and nobody is
trying to do anything untoward. People on both sides may not be here at
whatever time the vote begins.
The PRESIDENT pro tempore. Is the Senator asking that the time be
charged against all those who have time, or just against--
Mr. REID. I ask unanimous consent that the quorum calls--when they
are in effect--be charged against everyone except Senator Byrd at
12:30. After 12:30, it would be charged against him also. So the time
during quorum calls I ask be charged against all speakers equally.
Otherwise, we are going to wind up with more people----
The PRESIDENT pro tempore. The Chair is constrained to ask the
Senator to modify that. The occupant of the Chair has asked for 5
minutes. That could entirely wipe out the amount of time I have
allocated to me.
Mr. REID. It would not if it is done on a proportionate basis. Well,
if the vote does not occur until 7 o'clock, I don't really care. I will
withdraw that request and we will let things fall where they may.
Mr. FRIST. Mr. President, for clarification, this is a plea to our
colleagues to be here and be speaking on the floor of the Senate. We
are trying to do an awful lot, so we can start the vote around 3
o'clock. It will likely finish around 5:15. In order to accomplish
that, we cannot be sitting in quorum calls. We need the people wishing
to speak to be here on time and to be available. Check with the
managers.
The PRESIDENT pro tempore. May the Chair suggest that the time for
quorum calls be charged against the next person in line to speak and
put these speakers in order?
Mr. FRIST. Mr. President, since we have not talked to each
individual, I don't want them necessarily to have to come in this
order. I think we can leave it with the understanding that we need
speakers here to work with the floor managers and to have no down time
over the course of the morning and, if so, we are going to ask people
to try to shorten their remarks.
[[Page S11940]]
Mr. REID. Parliamentary inquiry, Mr. President: If in fact we don't
lock in a time for the vote, and Senators decide not to come and speak,
we cannot have a vote until they finish their time; is that right?
The PRESIDENT pro tempore. I am informed that if one Senator does not
appear, or does not use his or her allocated time, that will not delay
the Senate from voting at the time specified.
Mr. REID. Well, so there is no confusion, it is my understanding this
adds up to about 3:45 this afternoon.
The PRESIDENT pro tempore. The Chair is so warned by the
Parliamentarian not to have a debate with the Senator, but the Senator
is correct.
Mr. REID. Mr. President, I ask unanimous consent that the vote occur
no later than 4 o'clock, and that it could occur more quickly if the
time is used up.
The PRESIDENT pro tempore. Is there objection to the leader's request
as modified?
Mr. SPECTER. Mr. President, for clarification, I will follow Senator
Lieberman for 20 minutes. So it is Senator Collins and Senator
Lieberman, and then I am up for 20 minutes?
The PRESIDENT pro tempore. The Senator is correct. The Chair's
understanding is that this becomes the order for Senators to speak.
Mr. FRIST. No, Mr. President. We have no specific order. The
unanimous consent request was granted that Senator Specter follow
Senator Lieberman, and that is the only specific request. The order,
otherwise, has not been determined. Senator Collins will speak, then
Senator Lieberman and Senator Specter.
Mr. REID. Reserving the right to object, Senator Durbin would like to
speak after Senator Specter.
The PRESIDENT pro tempore. Is there objection? Without objection, the
modified request is agreed to.
The PRESIDING OFFICER (Mr. Graham of South Carolina). The Senator
from Maine.
Ms. COLLINS. Mr. President, in New England, we have an old
expression: The difficult we do immediately; the impossible takes us a
little longer.
The Intelligence Reform and Terrorism Prevention Act of 2004 before
us today at times seemed to be an impossible goal. So it took us a
little bit longer. It has been a long and arduous journey to reach this
point today, but the extraordinary perseverance of the 9/11 Commission,
the families of the victims of the attacks on our country, the
conferees, our talented staff, our leaders, and, most of all, the
President of the United States brought us to this point today.
We would not be at this historic moment without the informed, strong,
and bipartisan leadership of my good friend, the Senator from
Connecticut, Mr. Lieberman. I am deeply grateful to him for his
leadership and for working in partnership with me.
When Senator Lieberman and I were first assigned this task by our
Senate leaders back in late July, we pledged to work together and to
recognize that when it comes to matters of national security, there is
no place for partisanship. We worked from the very beginning to forge a
bipartisan bill, and I am very pleased that the conference agreement we
bring before the Senate today is a bipartisan agreement. I am confident
that later today it will receive a strong bipartisan vote. But it was
Senator Lieberman's determination, his leadership, and his commitment
to this cause that made it possible. It has been a great pleasure to
work with him, and I look forward to many future collaborations.
I am also very proud of all of our colleagues on the Homeland
Security and Governmental Affairs Committee. They worked so hard. From
the very first hearing that we held in late July to the completion of
the conference agreement over the weekend, they were there every step
of the way. No leaders of a conference could ever have had more devoted
and dedicated conferees than Senator Lieberman and I had.
We were also fortunate to be blessed with an outstanding staff. Both
Senator Lieberman's staff, and my staff, headed by Michael Bopp, have
worked countless hours over the last 4\1/2\ months. They sacrificed
family vacations, and they have sacrificed a great deal of sleep. They
have been here night and day working because they so believed in this
legislation. We could not have done it without them.
On the House side, I want to thank Speaker Hastert. His chief of
staff devoted hundreds of hours to assisting in these negotiations.
Congressman Pete Hoekstra and Representative Jane Harman led the
conferees on the House side. They did outstanding work. They were
absolutely committed to the principle of crafting legislation that
would make America safer and more secure.
Throughout this process, President Bush has provided outstanding
leadership. I would say that without the help of the President of the
United States and his Vice President, we would not be here today. Their
intervention at critical points throughout the debate was absolutely
essential in helping us to forge the compromises that were necessary to
move this bill along.
We all owe a great debt to the members and the staff of the 9/11
Commission. I have worked very closely with the chairman and vice
chairman, Gov. Tom Kean and former Representative Lee Hamilton. The
work they did, their leadership, their investigations, their interviews
of 1,200 people in 10 countries provided a solid foundation for the
recommendations they made and for the reforms included in this bill.
I am very pleased that we have their endorsement. They said:
We believe this is a good bill and a strong bill. We
believe it will make our country safer and more secure. We
also believe that the essential elements of the Commission's
recommendations remain intact. We are of the firm view what
this conference report deserves the support of the House and
the Senate.
But, Mr. President, perhaps the greatest debt of all is owed to the
families of the 9/11 victims. In their profound loss, they found
courage and determination. Their knowledge has contributed greatly to
our debate, and their passion constantly reminded us of why we are here
and what is at stake. They never let us give up. They refused to let us
fail.
I am grateful to Senator Frist and Senator Daschle for assigning our
committee this important task. They showed great confidence in us, and
I am pleased we did not let them down.
This legislation addresses the alarming flaws in our national
intelligence structure that were so horribly and painfully exposed on
that black September morning more than 3 years ago. It does what nearly
a half century of studies and legislation calling for intelligence
reform failed to do. It is legislation whose time has finally come.
The legislation implements the major recommendations of the 9/11
Commission. We are rebuilding a structure that was designed for a
different enemy in a different time, a structure that was designed for
the Cold War and has not proved agile enough to deal with the threats
of the 21st century.
We have transformed that structure into one with the agility needed
to respond to international terrorism, rogue states, the proliferation
of weapons of mass destruction, and the other challenges and threats of
the 21st century.
The legislation reforms the intelligence community and it gives us
the tools to respond to threats of which we may not even be aware at
this point.
It is fitting that this legislation comes to a final vote during the
week when we pause to remember the events of December 7, 1941. Just as
the National Security Act of 1947 was passed to prevent another Pearl
Harbor, the Intelligence Reform Act will help us prevent another 9/11.
I am not saying that this legislation will prevent future terrorist
attacks, but it will increase the capabilities of the intelligence
community and help us improve the opportunity to better detect,
prevent, and, if necessary, respond to attacks on our country.
The four primary components of this legislation are the creation of a
director of national intelligence, the establishment of a national
counterterrorism center, the creation of a civil liberties board, and
strong information-sharing provisions. There are also many other
provisions in this bill that improve border security, that improve
transportation security, that set a new direction in our foreign
policy.
This is a comprehensive approach that embodies many--indeed, most--of
the recommendations of the 9/11 Commission.
The new director of national intelligence will be a strong position
with clear and effective authority to build
[[Page S11941]]
and execute the intelligence budget. The DNI will be a dramatic
improvement over the structure we have today. For the first time, we
will have, in the words of Secretary of State Colin Powell, an
empowered quarterback for our intelligence team.
To illustrate why this is important, why these authorities are
crucial, let us consider a passage from the 9/11 Commission Report. In
late 1998, it had become apparent to CIA Director George Tenet that al-
Qaida was a growing and deadly threat to the people of this country, so
on December 4 of that year, he issued a memorandum that said the
following:
We are at war. I want no resources or people spared in this
effort, either inside CIA or the Community.
Now, that is a pretty clear, concise, direct order from the head of
the intelligence community.
According to the Commission, the memorandum had virtually no impact.
One reason it had so little overall effect on mobilizing the resources
of the intelligence community is that the Director of the CIA, beyond
the direct control of the CIA, has very little authority over the
funding, the people, and the other resources in the intelligence
community. This legislation will ensure that in the future, when such a
clear, concise order is issued, it will mobilize and galvanize the
resources we can bring to bear.
The second important key component in this bill is the creation of
the National Counterterrorism Center. This will build on the good work
already being done by the Terrorist Threat Integration Center created
by the President through an Executive order. The NCTC will help
demolish the information stovepipes that the 9/11 Commission found and
it will replace them, it will turn them into conduits for information
sharing across the intelligence community. The NCTC will also conduct
strategic operational planning to coordinate the agencies that are
planning our response to al-Qaida and the other threats to our national
security.
Throughout the debate on this bill, in addition to improving the
ability of the intelligence agencies to cooperate and coordinate their
efforts, we have also been mindful of our troops fighting on the front
lines in the war against terrorism in Afghanistan and Iraq. Both
Senator Lieberman and I are privileged to serve on the Senate Armed
Services Committee. I contend that our current system has not always
served our troops well. It did not predict the insurgency that has cost
us so many lives in Iraq. We owe it to our troops on the battlefields,
as well as to our civilians at home, to improve the quality of
intelligence they receive, and I believe, as does Secretary Powell,
this bill will do just that.
I emphasize that nothing in this bill in any way hinders or impairs
military operations or readiness. To the contrary, I believe this
legislation will help improve the reliability and the quality of
intelligence provided to our troops.
Another important provision of this bill would implement the
recommendations of the 9/11 Commission by creating a civil liberties
board. As we increase the power of Government to deal with the threat
of terrorism, we must be mindful to preserve those freedoms that define
us as Americans. We would be handing the terrorists a victory if we
were to compromise the civil liberties Americans cherish. This board
will help make sure we strike the right balance.
Finally, other key provisions of this bill, for which Senator Durbin
deserves great credit, are provisions that will improve the sharing of
information across our intelligence agencies and throughout the Federal
Government. We know from the extensive review of the 9/11 Commission
that various agencies throughout our Government had pieces of the
puzzle that had it been assembled might have allowed them to prevent
the attacks on our country on 9/11. We need to make sure we have a
culture in our Government of assembling the pieces of that puzzle, of
sharing information. I believe the Counterterrorism Center, the
information-sharing provisions, and having a DNI will all improve and
remedy that problem.
The 9/11 Commission has told us repeatedly of the valiant and
talented men and women we have in our intelligence agencies, and I
salute their good work. I believe today that we will be giving them the
tools they need to be more effective. This legislation provides those
good people with a good structure.
Time, commitment, and perseverance have brought us this far. I urge
my colleagues to join us in completing the journey by giving this
landmark legislation an overwhelming vote later this afternoon. This
legislation will implement the most sweeping significant reforms of our
intelligence community in more than 50 years. The reforms are long
overdue, and they will help to make our Nation more secure.
I reserve the remainder of my time.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. LIEBERMAN. Mr. President, I rise to join with Chairman Collins in
recommending the adoption of this conference report on the Intelligence
Reform and Terrorism Prevention Act of 2004 which, of course,
implements the key recommendations made by the 9/11 Commission Report.
I begin by thanking Senator Collins for her extraordinary leadership
in this effort. In the 16 years I have been here--and it is self-
evident to the Presiding Officer and others that I am much the senior
of Senator Collins--I have never had a better legislative experience.
This task came to us quickly. There was an enormous amount of work to
do. As I said yesterday, it was a long and winding road we walked down,
but we ended up where we needed to be and where the Nation needed us to
be, and it simply could not have happened without Susan Collins'
leadership. She has an extraordinary sense of purpose and principle.
She understands the difference between right and wrong and, in a
legislative context, perhaps, the difference between better and worse
because that is often where we are. She is a persistent and very
effective negotiator, knows when to hold them and when to fold them.
She is a wonderful person--I think maybe I should be that explicit--
and that doesn't hurt around here, either, because it gains the
confidence of the people who work with her. Part of her being a great
person is her great sense of humor which got us through some of our
darker moments.
I was thinking one of the great moments in the process was when we
decided, late in the process, that the original title we gave to the
central position we created, the National Intelligence Director, would
have the acronym NID. It doesn't resonate the strength that we wanted.
Some member of our conference with an inferior sense of humor said it
would lead to a lot of ``NIDpicking.'' A lot of laughter led to the
change of the title to the Director of National Intelligence, the DNI.
You can feel the force radiating. We laughed a lot about that and about
a lot of other things.
It is a familiar saying in public service and life, and certainly in
campaigns, that victory has a thousand parents and defeat is an orphan.
This is a victory for the American people. Many people have a right,
here in the Senate, on the 9/11 Commission, the families of the 9/11
victims, the President of the United States, the Vice President of the
United States--so many people can say, and we might say: Without their
involvement this would not have happened. But nobody, really, can say
that more or feel that more than Senator Susan Collins of Maine. I
thank her very much for her friendship, for her partnership, for her
leadership here, and I, too, look forward to working with you in many
similar collaborations in the years ahead.
Before I get to the substance of the bill, I do want to say something
about the process here. As we end the 108th session of Congress,
unfortunately a session that was very often polarized and partisan, it
is really great--besides the specifics of this accomplishment that is
so critical to our national security--that we have ended it with a
bipartisan, nonpartisan triumph. It ought to send a message to the
American people, and perhaps just as important to us here, that we are
capable of doing this. When the chips are down, we are capable of
getting together across party lines and doing what is right for the
country. That, ultimately, is why we all came here. That gives us the
greatest satisfaction and,
[[Page S11942]]
incidentally, it is probably the smartest and most productive thing we
can do politically as well.
This simply would not have happened in the Senate without the
chairman of the committee on Homeland Security and Governmental
Affairs, and ultimately the chairman of the conference, Senator
Collins, setting exactly that tone. I thank Peter Hoekstra on the House
side, Jane Harman, and all the members of the conference committee for
all they contributed.
This legislation is a testament to the courage and persistence of the
families of the victims of September 11. Their personal sacrifices,
transformed into a steadfast devotion to see this bill to passage, will
help make the rest of America safer. This bill was conceived in the
memory of their husbands and wives, their sons and daughters, their
mothers and fathers and brothers and sisters, and simply would not have
been possible without the constancy of effort and the increasingly
sophisticated advocacy by the surviving family members. I thank them.
We have worked hard for this historic agreement because we believe,
quite simply, that the security of our Nation depends on it. There were
various times at which people in this Chamber and the other body said
we were moving too quickly; what was the cause for haste? I can tell
you it didn't seem we were moving too quickly to Senator Collins and
me. But what was the cause for our haste? Our enemies, our terrorist
enemies, al-Qaida and their ilk, are not waiting, as we know. They are
here. They are planning. We are at peril. Accordingly, we approached
this task with a real sense of urgency, a grave and growing sense of
urgency because we know we face a clear and present danger from
terrorists.
The bill before us today is a landmark achievement because, as others
have said and will say throughout the day, for the first time in over
half a century we are going to modernize our national intelligence
structure to meet the new challenges we face in today's world. With
this bill, we recognize we can no longer keep the American people safe
simply by projecting military force abroad. The world has changed. Our
terrorist enemies today make no distinction between soldiers and
civilians, between foreign and domestic locations when they attack us.
To defeat them, we must have the best possible intelligence about their
plans before they strike so we can stop them before they strike.
This legislation moves us toward that goal significantly by
transforming our intelligence community from a Cold-War model--and
after all, it was at the outset of the Cold War that the current
structure was conceived--a Cold-War model that shared information only
if there was a need to know, to a 21st-century model that will share
information to maximize the intelligence community's substantial
resources and expertise and, yes, guarantee greater returns for the
billions and billions of dollars of taxpayer money that are invested in
intelligence to protect the American people.
The 9/11 Commission supports our compromise. Chairman Kean and Vice
Chairman Hamilton said in a statement:
We believe this is a good bill and a strong bill. We
believe it will make our country safer and more secure.
They support this compromise because it implements the Commission's
key recommendations to establish that DNI and a National
Counterterrorism Center that will improve coordination and
collaboration, as the Commission puts it, ``to forge unity of effort''
between the 15 intelligence agencies scattered throughout the
Government, and to ensure that, unlike up until now, someone is
genuinely in charge.
I said to a business executive in my home State this morning, talking
about this bill, explaining why I couldn't be with him today at a
meeting in Connecticut, that if anybody in business really got inside
and looked at how we are spending the billions of dollars we do on
intelligence, they--well, they wouldn't believe it because no one is in
charge.
The Commission indicted the status quo of America's intelligence
community. The 9/11 Commission report is an indictment of the status
quo. Those who pick and try to look for loopholes in this reform have
to remember that the status quo failed to protect the American people
on 9/11 and it has failed in different ways to provide us with the
quality, accuracy and reliability of intelligence that we need.
Vice Chairman Hamilton memorably told our committee in our hearings
on this Commission report:
A critical theme that emerged throughout our inquiry was
the difficulty of answering the question: Who's in charge?
Who ensures that agencies pool resources, avoid duplication
and plan jointly? Who oversees the massive integration and
unity of effort to keep America safe? Too often [the 9/11
Commission said] the answer is no one.
The fact is, below the level of the President no one has been in
charge of overseeing the entire intelligence community and its
multibillion-dollar budget. Today, as testimony before our committee
validated, no one is clearly in charge of the hunt for Osama bin Laden.
No one has had the authority to knit together the efforts of the 15
disparate agencies working on intelligence for the American people,
and, therefore, no one has ultimately been accountable for the deadly
mistakes that have been made.
This legislation changes all of that, putting a clear command
structure in place so that in the future the puzzle pieces will be put
together, the dots will be connected, and so, I hope, pray, and
believe, we will never have to suffer through another attack like the
one we did suffer through, and still do, on September 11, 2001.
I wish to briefly discuss some of the key provisions, starting with
intelligence reform.
Under our current intelligence structure, the CIA Director has to
perform three jobs: acting as the President's principal intelligence
adviser, overseeing the intelligence community as a whole, and
directing the CIA. The 9/11 Commission reported what many had said
before: The tasks are simply too much to expect of any one person.
So we have created a Presidentially appointed, Senate-confirmed
Director of National Intelligence, who will lead the national
intelligence community but be separate from the Director of the CIA.
The DNI will be the President's principal intelligence adviser and will
focus exclusively on breaking down those barriers that have obstructed
information sharing and professional collaboration in the public
interest. With the CIA Director in charge of daily CIA operations, the
DNI will be able to forge that unity of effort which we need to better
protect the American people.
The DNI will exercise significant budget authority over the
intelligence community both in the development and the execution of the
budget, and he or she will consult closely with the Secretary of
Defense, the Director of the CIA, the head of the FBI, and other
intelligence leaders on both funding and personnel issues.
The DNI will have unprecedented authority in the implementation and
execution of all funding under our national intelligence program.
Our bill makes clear that the DNI will have the power to ``develop
and determine'' the intelligence budget and that the Director of the
Office of Management and Budget must apportion the national
intelligence program funds at the ``exclusive direction'' of the DNI.
The DNI is further responsible for managing the appropriations by
``directing the allotment and allocation'' of appropriations through
the heads of Departments containing the elements of the intelligence
community. Just to make sure there is no slow-walking in moving those
funds forward, the Department comptrollers must then allot, allocate,
reprogram, or transfer funds--in the words of the report--``in an
expeditious manner.''
The DNI will have a major hand in the appointment of key officials
across the intelligence community, thus elevating the authority of that
position. He or she will recommend appointment of the Director of the
Central Intelligence Agency to the President. The Secretary of Defense
will have to obtain the DNI's concurrence in appointing the heads of
the National Security Agency, the National Reconnaissance Office, and
the National Geospatial-Intelligence Agency. The Secretary will consult
with the DNI before appointing the Director of the Defense Intelligence
Agency. The Secretaries of the Departments of Energy, Homeland
Security, Treasury, State, and the Attorney General will need the
concurrence of the DNI to appoint the heads of intelligence agencies
under their immediate jurisdiction and under the DNI's
[[Page S11943]]
overall jurisdiction. That is real authority in this new office.
The DNI will also have significantly expanded authority to transfer
personnel and funds beyond those of the current DCI so that he or she
may react quickly to changing threats and direct intelligence resources
where they are needed.
In addition to creating the DNI, this conference report will create--
as recommended by the Commission--the National Counterterrorism Center
and a series of National Intelligence Centers to ensure that critical
national security issues are addressed with maximum coordination and
teamwork.
This may well be the most significant process we have begun with this
bill, the authority of DNI, but creating a model, and a model built on
the most effective, modern corporate models of joint team efforts to
deal with problems. But it really deals directly and grows out of the
experience of the Pentagon post-Goldwater-Nichols, in joint warfare.
This says when we have a critical national security problem the best
way to deal with it will be to create a center to deal with it, a table
at which every element of our Government involved in dealing with that
problem is present so they can collect intelligence together, analyze
it together, and then plan how to combat the problem.
Specifically created in this bill, of course, is the National
Counterterrorism Center which will seek to make ensure the disastrous
disconnect between the FBI and the CIA that occurred prior to 9/11 will
never occur again. It will develop plans, assign roles, and monitor the
agencies' implementation of those plans in order to thwart the next
terror attack.
This is not a narrowly focused, constricted center. The Center's
planning will be at the strategic level such as how do we best win the
``hearts and minds'' of the great majority of people in the Muslim
world. It will be at the tactical level--for instance, how we are going
to capture Osama bin Laden.
The National Counterterrorism Center Director will be confirmed by
the Senate and it will report to the Director of National Intelligence,
and in some cases to the President himself.
Let me talk about those other centers.
This bill creates one other center to deal with a most pressing
threat to our security; that is, the proliferation of weapons of mass
destruction. This part of the bill was inserted as a result of the
leadership of the majority leader, Senator Frist. It is an enormous
step forward in dealing with the threat of WMD.
These are the central structures of the intelligence reform, but our
legislation goes beyond that. The 9/11 Commission documented that, in a
period preceding September 11, 2001, potentially helpful information
available to one part of the Government was not shared with others
which could have used it.
This legislation takes that direction from the Commission to heart
and requires the President to establish a network of technologies and
policies that will resolve conflicts between the need to share and the
need to protect sources and methods. It will create and allow us to use
the best technology to make sure we are sharing and culling and
filtering and applying the vast amount of data we get from our
intelligence networks most effectively.
Beyond intelligence reform, this bill contains much more. In fact,
the 9/11 Commission made 41 recommendations to protect our Nation from
terrorism. In August, Senator McCain and I drafted legislation to
address them all. I am pleased and proud to say I am grateful for the
conferees, to the Senate, and to the House that most of those
initiatives have become part of this conference report.
For example, the 9/11 Commission observed that many of the actions
necessary to protect us in the war against terror also involves a
consolidation of governmental authority and the increased presence of
government in our lives to protect us. In response, the Commission
called for ``an enhanced system of checks and balances'' to protect the
civil liberties that define us as Americans. In fact, this conference
report creates a Privacy and Civil Liberties Oversight Board.
The Board will have two functions. First, to advise the President and
Federal agencies at the front end of policymaking and, second, to
conduct oversight at the back end, investigating and reviewing
Government actions to determine whether executive branch officials are
appropriately respecting the individual freedoms of the American
people.
The 9/11 Commission also recognized the futility of combating
terrorism only by military means. Of course, we have been, and will
continue, doing our best to capture and kill all the terrorists we can
as soon as possible. But we understand that ultimately what is required
to stop the growth of terrorism are initiatives of foreign policy,
diplomacy, economics, and of politics.
Our legislation--this conference report--includes many of the
provisions recommended by the Commission which will do just that,
including increased American foreign assistance to Afghanistan and a
renewed U.S. commitment to Pakistan. It provides enabling authorities
to help us win ``the struggle of ideas'' through the greater funding
and use of much more imagination in American broadcasts to the Islamic
world. It calls for broadening and growth of scholarships and exchange
programs between the United States and the Muslim world, with students
and faculty going back and forth.
The bill also takes aggressive measures to prevent attacks, as well,
by targeting terrorist travel, improving screening at entry and exit
points, and securing identification documents.
Our legislation requires secure identification for travel documents
for all travel into the United States. This was a topic about which
much was said and debated in the conference, and before, during, and
after House adoption of this conference report yesterday. I guess the
conferees, in their wisdom, decided some of the immigration reform in
the House bill would have weighted the bill down and inhibited or
prohibited its passage. It is urgently needed and we cannot afford to
do that. We will get to that next year.
Make no mistake, this conference report contains some tough
antiterrorist law enforcement measures, and some tough immigration
enforcement measure. It specifically implements the 9/11 Commission
Report recommendation for the Federal Government to establish minimum
standards for birth certificates, driver's licenses, and personal
identification cards. Those provisions will help decrease fraud so
terrorists are not able to hide their identity. They will not deprive
the States of the right that States understandably want, to determine,
not the form of the driver's license, but who is eligible to receive a
driver's license within their States.
Other measures in this conference report will go far to tighten
border security. It will increase the number of border guards,
immigration officers, and detention beds for those who are being held
for legal action and other action to determine their immigration status
and whether they should be deported. No longer will we have a case, as
in the past, where a challenge is made to someone's immigration status
but they are allowed to wander and disappear into the vastness of
America. There will be thousands of new beds created, detention
facilities, to hold those people while their cases are being reviewed.
We added a provision allowing the Government to deport anyone who has
received military training from a terrorist organization. The
Government will also be able to obtain a Foreign Intelligence
Surveillance Act warrant for anyone engaging in terrorist activities
even if they are not clearly connected to a specific terrorist
organization. That is common sense, but it is not in the law now.
To better safeguard the Nation's transportation networks, this
legislation also requires the Department of Homeland Security to
produce a national transportation strategy that evaluates the risks
faced by all modes of transportation, not just aviation, and sets some
clear priorities and deadlines for security needs.
We also have included measures to help first responders, the hundreds
of thousands of men and women, largely in uniform, some out, at the
local and State levels. We want to help them obtain interoperable
communications equipment so in a crisis they can talk with each other
and work cooperatively.
I have long believed if we are going to make sense of what happened
on
[[Page S11944]]
September 11 we need to look back honestly with clear eyes and honest
hearts. The 9/11 Commission's extraordinary work enabled us to do just
that. Its 587-page report did not close the book on September 11. It
will never be closed. The legislation does not close the book on
September 11. It will live alongside December 7 as a day that will live
in infamy throughout American history and America's future.
The work on this conference report and its adoption today will open a
new chapter for a safer America. Chairman Kean has said:
Our biggest weapon of defense is our intelligence system.
If that doesn't work, our chances of being attacked are so
much greater. So our major recommendation is to fix that
intelligence system and do it as fast as possible.
That is exactly what this historic legislation does.
In this Congress, this President fulfills our constitutional duty to
provide for the common defense of our Nation. I said before that many
can claim to be parents of this victory. Members of both parties in
Congress, leaders of both parties, bipartisan leadership in this
Chamber certainly stood by Senator Collins and me all the way. This
simply would not have happened without the support of the President of
the United States, the Vice President of the United States, and their
staffs, working hard and long to do something that institutions and
government do not do easily, which is to change. If it was easy, the
20-some-odd attempts made in the last half century to reform our
intelligence system would have worked, would have succeeded. They did
not.
This is about to succeed because of the effort that has been made
across party lines in the national interests by everyone from the
President of the United States to every single Member of Congress who
worked hard on this measure.
Maybe I should add another thank you. Maybe I should go from the
President to our staffs. Senator Collins has said the legions of staff
members on both sides of the aisle and both sides of the Capitol put
their lives on hold and worked through nights and weekends for the
cause of a safer America. I particularly thank Kevin Landy on my staff,
whose work started with the legislation to create the 9/11 Commission--
that was a story in itself--and who has been single minded in his
devotion to crafting this legislation in a way that was real and
excellent. I also single out the work of Majority Staff Director
Michael Bopp, and all of his team. Michael has terrific legislative
skills and leadership abilities and has served the conference and the
country extraordinarily well. On my staff I also thank my staff
director Joyce Rechtschaffen, and Dave Barton, Mike Alexander, Raj De,
Christine Healey, Holly Idelson, Beth Grossman, Larry Novey, Jason
Yanussi, Kathy Seddon, Dave Berick, Mary Beth Schultz, Tim Profeta,
Fred Downey, Andrew Weinshenk, and Donny Ray Williams, Leslie Phillips,
Bill Bonvillian and Laurie Rubenstein. I could go on and on. Many other
staffers of other Senators contributed much to this bill and I thank
them. I would especially like to thank Marianne Upton and Joe Zogby
from Senator Durbin's staff. And I particularly express my personal
appreciation, in this and so many partnerships we have been involved
in, to Senator John McCain of Arizona, and to his staff. We worked in
close partnership to craft the legislation implementing the 9/11
Commission recommendations. Many provisions were adopted in the Senate
and are integral parts of the conference report. I thank them all.
I come back to the beginning to particularly thank my colleague and
friend, our chairman, Senator Susan Collins of Maine.
I ask unanimous consent to have printed in the Record two documents
from the 9/11 Public Discourse Project regarding driver's licenses and
military chain of command.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Fact Sheet: Driver's Licenses, 9/11, and Intelligence Reform
What happened in the 9/11 plot
The hijackers obtained 13 driver's licenses (two of which
were duplicates) and 21 USA or State-issued identification
cards (usually used for showing residence in the U.S. or a
State).
The driver's licenses themselves were all legal, that is,
they were not forged. But they were not all legally obtained.
Seven hijackers used fraudulent means (false statements of
residency) to acquire legitimate identifications in Virginia.
Their fraud in obtaining driver's licenses did not arise
from them being undocumented aliens. All the hijackers
entered the United States with proper immigration documents,
but several had committed fraudulent acts to get them.
One hijacker who obtained a driver's license when he was in
status was out of status on 9/11. Another hijacker whose
documents clearly showed that he was out of status and had
overstayed his 30-day visitor's visa did not seek or obtain a
driver's license. He used his passport to prove
identification and board the aircraft.
Based on what we learned in the 9/11 story, we recommended
stronger immigration enforcement to catch terrorists who were
exploiting weaknesses in America's border security. We
recommended greater attention to terrorist travel tactics and
information sharing about such travel.
We also recommended strong Federal standards for the
issuance of birth certificates and other sources of
identification, such as driver's licenses, to avoid the
identity fraud that terrorists can exploit.
We did not make any recommendations to State governments
about which individuals should or should not be issued a
driver's license.
Specifically, we did not make any recommendation about
licenses for undocumented aliens. That issue did not arise in
our investigation, as all hijackers entered the United States
with documentation (often fraudulent) that appeared lawful to
immigration inspectors. They were therefore ``legal
immigrants'' at the time they received their driver's
licenses.
What the pending Conference Report (following the Commission's
recommendations) would require
The establishment of new standards to ensure the integrity
of the three basic documents Americans use to establish their
identity-birth certificates; State-issued driver's licenses
and i.d. cards; and social security cards.
New standards to ensure that the applicant for the identity
document is actually the person the applicant claims to be;
and improvements to the physical security of the document.
States would receive grants to assist them in implementing
the new standards.
What H.R. 10 requires
H.R. 10 requires that before issuing a driver's license a
State would need to verify that each applicant:
Is a citizen of the United States;
Is an alien lawfully admitted to permanent residence status
in the U.S.;
Has conditional permanent residence status in the U.S.;
Has a valid, unexpired nonimmigrant visa or nonimmigrant
visa status for entry into the U.S.; or
Has a pending application for adjustment of status to that
of an alien lawfully admitted for permanent residence in the
U.S. (There are additional requirements but these are the key
ones).
Only citizens and permanent residents could receive
driver's licenses; all others with documentation would have
temporary driver's licenses issued for the length of visa
stay or not more than one year if there is no definite end to
the period of authorized stay. Undocumented aliens could not
receive licenses.
Observations
It is important to have national standards on driver's
licenses, passports and other identification documents.
There is no doubt hijackers used State-issued documents to
get through a lot of checkpoints. For this reason, we believe
Federal minimum standards for such State-issued documents are
important.
Whether illegal aliens should be able to get driver's
licenses is a valid question for debate.
The debate over this issue ought not to hang up the
hundreds of provisions in the conference report that would
strengthen intelligence, improve information sharing,
strengthen transportation and border security, improve
American foreign policy, and support first responders.
We would also note that if the hijackers presented visa
documentation that appeared valid to DMV officials (as they
apparently did), they would still have been issued temporary
driver's licenses for the duration of their visa, under the
provisions in the House bill.
____
Fact Sheet: The Conference Report and Intelligence Support for Military
Operations
1. the proposed reforms do not change the chain of command for control
of national intelligence assets
The warfighter today can call upon real-time intelligence
support from the military services (like the Air Force), from
his joint forces command (like CENTCOM), and from national
agencies (like the signals intelligence analyzed by NSA).
The bill does not affect support relationships between
combat units and military services (like the Air Force).
The bill does not affect support relationships between
combat units and the joint
[[Page S11945]]
forces command to which they are assigned (like CENTCOM). It
would not affect CENTCOM's management of the assets assigned
to that command. So, for example, the bill would have no
effect at all on the support relationship between the soldier
in the field and a JSTARS aircraft or Predator UAV assigned
to CENTCOM's intelligence component, its J-2.
Assets, like satellites, that are run by national agencies
are managed for the benefit of the whole US government. That
is why these are called ``national'' agencies. The chain of
command for operational decisions about those assets
therefore goes outside of DOD under the status quo.
Under President Bush's executive order (August 2004), DCI
Goss has the duty to set the requirements and priorities for
collection by these agencies. The DCI also has the authority
to ``resolve conflicts in the tasking of national collection
assets. . . .''
Under the conference report these same authorities simply
move from the DCI to the DNI, for ``resolving conflicts in
collection requirements and in the tasking of national
collection assets of the elements of the intelligence
community.''
At the operational level, the job of getting national
assets in support of the warfighter is managed by the unified
combatant commands with the help of the Joint Staff's J-2 and
the J-2's National Military Joint Intelligence Center.
None of the current practices for the allocation of
national assets would change as the focal point for national
coordination moves from the DCI to the DNI.
2. the specific concerns articulated by jcs chairman general myers in
his letter of october 21st were addressed in the conference report
General Myers' letter of October 21st (attached) did not
register any concerns about the chain of command in
operational intelligence support for the warfighter.
General Myers focused only on budget matters, where he
specifically requested that:
(a) ``the budgets of the combat support agencies should
come up from the agencies through the Secretary of Defense to
the National Intelligence Director''; and
(b) ``it is likewise important that the appropriations are
passed from the National Intelligence Director through the
Department to the combat support agencies.''
This latter point, on ``this vital flow,'' is the one--the
only one--singled out for a ``recommendation that this
critical provision be preserved in the conference.''
It was.
VVIn the conference report, the appropriations do not go to
the National Intelligence Director. The appropriations for
national intelligence go through the heads of the relevant
departments.
With the help of OMB, the DNI can direct allotment or
allocation of these funds, but the flow of funds goes through
the department to (in DOD's case) the combat support
agencies:
``Department comptrollers or appropriate budget execution
officers shall allot, allocate, reprogram, or transfer funds
appropriated for the National Intelligence Program in an
expeditious manner.''
Thus the conference report accepted the recommendation of
General Myers for how to direct the flow of funds.
Even on the issue of budget preparation, the conference
report addressed the concern raised by General Myers.
In the conference report, the budgets from the combat
support agencies come up through the Secretary of Defense. If
the combat support agencies are not national intelligence
agencies and are covered under the appropriations for joint
military intelligence or for tactical intelligence and
related activities, the proposed DNI participates with the
Secretary of Defense in developing the final budget for them.
For these combat support agencies the authority of the
Secretary of Defense remains exactly as it is now.
If the combat support agencies are also national
intelligence agencies (which is the case for the National
Security Agency, the National Geospatial Intelligence Agency,
and the National Reconnaissance Office), the proposed DNI
would develop and determine the national intelligence program
budget ``based on budget proposals provided . . . by the
heads of agencies and organizations within the intelligence
community and the heads of their respective departments and,
as appropriate, after obtaining the advice of the Joint
Intelligence Community Council.''
Thus, in the conference report, the Secretary of Defense
has input into budget preparation for these national agencies
both directly and through his participation in the proposed
Joint Intelligence Community Council.
3. the commission considered dod concerns in the preparation of its
recommendations
Commissioners and Commission staff discussed DOD concerns
about intelligence reorganization with Secretary Rumsfeld,
Under Secretary of Defense for Intelligence Cambone, Director
of the National Security Agency General Hayden, the Director
of the National Geospatial Intelligence Agency General
Clapper, and many others. General Hayden and General Clapper
have spent their careers in providing military intelligence
support for the warfighter.
Commissioners and/or Commission staff made three
investigative visits to HQ Central Command and HQ Special
Operations Command. They interviewed officers at HQ Northern
Command and HQ Joint Special Operations Command. They
interviewed users of intelligence in the field, in
Afghanistan and Pakistan.
4. a better structure enables better management
The Commission never took the view that reorganization
solves all problems. A better structure enables better
management.
Numerous specific management reforms are needed, in areas
such as human intelligence collection; common standards for
information technology and network capabilities; more
efficient use of available experts; improved language skills;
standardized processing of raw intelligence; and better all-
source analysis.
What we found is that these and other management reforms
falter in an unmanageable intelligence community. A better
structure makes it more likely that such urgent management
reforms will succeed.
____
Appendix: Letter From Gen. Richard Myers to HASC Chairman Hunter
Chairman of the Joint
Chiefs of Staff,
Washington, DC, October 21, 2004.
Hon. Duncan Hunter,
Chairman, Armed Services Committee, House of Representatives,
Washington, DC.
Dear Mr. Chairman: As we discussed during our recent
telephone conversation, I know that you and the conferees are
discussing intelligence reform and the intelligence budget
process. This is a vitally important subject as we look at
the effectiveness of the intelligence provided by our combat
support agencies. It is my belief that the responsibilities
of the Secretary of Defense for the operation of these
agencies, including budget preparation and execution, should
be addressed as the conferees proceed to a final bill. In
this regard the budgets of the combat support agencies should
come up from the agencies through the Secretary of Defense to
the National Intelligence Director, ensuring that required
warfighting capabilities are accommodated and rationalized
and ensuring that the Secretary meets his obligations. For
appropriations, it is likewise important that the
appropriations are passed from the National Intelligence
Director through the Department to the combat support
agencies. It is my understanding that the House bill
maintains this vital flow through the Secretary of Defense to
the combat support agencies. It is my recommendation that
this critical provision be preserved in the conference.
The combat support agencies provide critical combat
intelligence capabilities important to the day to day
operations of our armed forces, including, of course, combat
operations. Establishing the budget process in this manner
would allow the combat support agencies to continue their
outstanding support to the warfighters, our on-going
counterterrorism efforts, and the men and women of our
nation's armed forces serving in harm's way.
Sincerely,
Richard B. Myers,
Chairman, Joint Chiefs of Staff.
Mr. LIEBERMAN. I yield the floor.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Mr. President, before the Senator from Pennsylvania is
recognized, I have a unanimous consent request.
Mr. President, I ask unanimous consent Senator McCain be allocated 5
minutes of my time at some point during the debate today.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. COLLINS. Mr. President, I will be putting into the record a list
of the Senate conferees because each of them contributed in
extraordinary ways to this bill. I will be making comments about some
of them and their particular contributions later in the debate today.
Mr. LIEBERMAN. I ask unanimous consent that Senator Carper of
Delaware be given 5 minutes to speak at an appropriate time of the time
allotted to me.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, I begin by congratulating the chairman,
Senator Collins, and the ranking member, Senator Lieberman, for their
extraordinary leadership in the beginning of the legislative process
which has culminated in where we are today and their steadfast
determination in pursuit of this bill throughout many arduous months.
Senator Collins and Senator Lieberman took up at the direction of the
majority leader and the Democratic leader in structuring hearings which
began at the end of July of this year immediately after the Democratic
National Convention. They proceeded in August in an unprecedented way
where the regular schedules were interrupted, a difficult thing to do
in a campaign year. They reconvened the Governmental Affairs Committee
on which
[[Page S11946]]
I served and the committee members were advised of schedules--difficult
to do in a campaign season when many Members are up for reelection--but
the legislative objective was of paramount importance and the committee
responded and the committee pursued the hearings and came up with the
legislation.
I believe what we have here is really a battlefield victory over the
Department of Defense. The essential issue has long been a turf
struggle, and I think we have taken a short step, but a significant
one, in the legislation which is presented in the conference report
today.
I do not think we should overstate where we have come, but I think,
at the same time, we need to recognize we have stepped significantly
forward, albeit a single step, as a result of the insistence of the
President of the United States who deserves commendation for his
leadership in the final stages of this matter to bring the legislation
where it is today.
Where we have had a good bit of discussion on the issue of chain of
command, I think realistically that has been more smoke than substance.
But, at any rate, the key participants in the House of Representatives
were satisfied so the bill did come to a vote in the House, and the
Senate is ready to take the matter up today.
A great deal of credit is obviously due to the families of the 9/11
victims in their insistence that the 9/11 Commission be formed. And
then great credit is due to the 9/11 Commission itself in structuring a
report, which was filed in July, and then putting considerable pressure
to have their report enacted.
I think, to repeat, the realities are that the final legislation is
short of where the 9/11 Commission would like to have gone either with
respect to budget control or with respect to day-to-day operations, but
in the tortuous process of making changes in the intelligence
community, the 9/11 Commission has been a catalyst here in a very
important way.
It became apparent, when 9/11 occurred, that had there been proper
coordination among the intelligence agencies that 9/11 might well have
been prevented. There was that FBI report out of Phoenix about the
suspicious character who was interested in learning how to fly a plane,
not concerned about takeoffs or landings. That FBI report never got to
the proper line in FBI headquarters in Washington.
Then, the CIA knew about the two al-Qaida operatives in Kuala Lumpur,
but that information was never transmitted to the Immigration and
Naturalization Service. It was not in the INS computers. Those al-Qaida
operatives got into the United States and were two of the pilots on 9/
11.
Then there was the FBI report out of Minneapolis with Special Agent
Colleen Rowley, who wrote a 13-page, single-spaced report which finally
received public attention, finally came to the attention of the key
officials of the FBI.
The Judiciary Committee held hearings in June of 2002, and there was
surprise and consternation that the appropriate test under the Foreign
Intelligence Surveillance Act had not been applied. Had that material
been known and had we been able to pick up the trail of Zacarias
Moussaoui at an early date, again the case was building that 9/11 might
well have been prevented, had these facts come to the attention of the
appropriate authorities and been collated and put all under one
umbrella.
So the need was imperative for revision and reform of the national
intelligence system.
I had seen this need when I chaired the Senate Intelligence Committee
back in the 104th Congress. At that time I introduced S. 1718, which
contained very material changes in the national intelligence community.
I will not put that legislation in the Record at this time. I have done
so on prior debates. But it was apparent at that time there needed to
be a revision of the national intelligence community. While the
Director of the Central Intelligence Agency had paper authority, he did
not have budgetary authority or day-to-day control sufficient to really
put all of the intelligence operations under one umbrella.
Following 9/11, after the report from Colleen Rowley came to light in
June of 2002, the administration agreed there should be a new
Department of Homeland Security. Senator Lieberman and I introduced S.
1534, 30 days after 9/11, on October 11 of the year 2001. The hearings
were held and there was considerable debate, and the legislation
languished and had a lot of opposition. It finally came to the Senate
floor in the fall of 2002. Then, as what frequently happens, the House
passed a bill and left town, leaving us with the option of either
taking their bill in October of 2002, which was an election year, or
putting the matter over, which would have gone to spring.
At that time, Senator Lieberman and I made an effort to give the new
Secretary of Homeland Security authority to direct--not to task or not
to ask or not to request but to direct--the other intelligence
agencies. It seemed to us when you were creating a new Department that
this was the time to make some fundamental changes in the national
intelligence structure. But the administration was opposed.
I talked to Secretary Ridge, Vice President Cheney, and I talked to
the President, and there was opposition, as concerns had been expressed
to putting any agency or any instrumentality or any unit between the
CIA and the President. It seemed to me--and I made this argument--that
would not have been the case. But we were unable to make that
modification. That is where the status of the record lay, until the
9/11 Commission came into operation and filed its report in July of
this year.
Immediately thereafter, Senator McCain, Senator Lieberman, Senator
Bayh, and I introduced a bill which tracked what the 9/11 Commission
wanted done. When the Governmental Affairs Committee took up the issue,
with the hearings in July and August, it seemed to me we needed a bill
which gave a great deal more authority to the National Intelligence
Director than where the committee was heading, and I introduced S.
2811, which gave the National Intelligence Director authority. I am not
going to make that bill a part of the Record. It has already been made
a part of the Record in prior debates.
The committee report did not give the National Intelligence Director
day-by-day authority, which, as I say, I thought it should have. I
offered an amendment which had cosponsors, including the former
chairman of the Senate Intelligence Committee, Senator Shelby; the
present chairman of the Intelligence Committee, Senator Roberts; and
many others who had very extensive experience on the intelligence
structure for the country. I offered that amendment on the floor, and
it was defeated by a vote of 78 to 19, so that the National
Intelligence Director in the Senate legislation was not given day-to-
day operation.
It was my thought then, and continues to be my thought, that if we
raised the bar a little higher, perhaps in the negotiations--as we
know, as a practical matter, in a House/Senate conference there are
compromises--we might have ended up with a stronger Director than we
have at the present time. In the course of the negotiations with the
House, the budgetary control was not maintained.
So what we have today is a step forward. But there is a great deal
more, in my judgment, of which the National Intelligence Director needs
to have effective control over in the national intelligence community.
But again, this is a step forward, not a big step but a significant
step, and it is something upon which we can build.
It would be a colossal mistake to reject this bill with the thought
of going back to the drawing board next year to begin again what we
have accomplished, putting us on another plateau from which we can
work.
We have in this legislation significant improvements on
transportation security, on terrorist travel and effective screening,
on border protection, immigration and visa matters, on terrorism
prevention. We do have those areas of very significant improvement.
I believe that Congress is going to have a big job of oversight now,
to see precisely what is done by the new National Intelligence
Director. We have changed our Senate procedures to make permanent the
Intelligence Committee so there will be some institutional knowledge
there without the shift on 8-year terms. I served 8 years on the
Intelligence Committee and had an opportunity to chair the committee
[[Page S11947]]
in the 104th Congress. That continuity will be very important.
On the Appropriations Committee on which I serve, we have structured
a new intelligence subcommittee. In the line of seniority, I may have
the opportunity to chair that subcommittee. That is something I am
thinking about. I am reluctant to give up the subcommittee on Labor,
Health, Human Services, and Education, but when we move forward from
this point on the restructuring of the national intelligence community,
this is a very significant period and is something to which I am giving
personal consideration.
The creation of the new National Counterterrorism Center is a
significant step forward. That has been an outgrowth of the mistake
recognized by the intelligence community from
9/11. That had been in process, and this legislation takes a very
important step beyond what is in existence at the present time, putting
it into a statutory form. I have conferred with the top officials of
the FBI, and the Judiciary Committee has oversight over the FBI. This
is something which requires very substantial oversight.
It is my hope, depending on how the Judiciary Committee is structured
next year, that this is something which the Judiciary Committee can
accomplish. But the Intelligence Committee and the Governmental Affairs
Committee and perhaps other relevant committees, Armed Services
Committee, will have a big job in not resting on our laurels on
legislation which will be enacted today. We ought not to take too much
solace in laurels, although though it is justifiable to some extent.
But there is a great deal more which needs to be done to see to it that
there is the kind of coordination and that we have made a successful
attack on the cultures of concealment which are present in the
intelligence community.
I have seen that culture of concealment from the work that I have
done on the Judiciary Committee on oversight for the past 24 years. I
saw that culture of concealment in the Central Intelligence Agency in
the 8 years I was on the Intelligence Committee. It may be that what
has happened with the events of 9/11 and with the pressure of the 9/11
Commission, with the legislation on the Department of Homeland
Security, that the intelligence community has been sensitized, perhaps
even more than sensitized, perhaps more accurately stated, bludgeoned
by congressional criticism and by public criticism over their failures
to coordinate intelligence activities which, had they been coordinated,
9/11 might have been prevented.
In conclusion--the two most popular words in every speech--I urge my
colleagues to adopt this legislation. I further urge my colleagues in
both this body, the Senate, and the House to be vigilant, to pursue
oversight, to see to it that the ultimate objective of coordination and
centralized direction is obtained with this legislation as a
significant starting point.
Far from perfect, it nonetheless provides a valuable foundation for
future legislation and puts us on the path to meaningful intelligence
reform. As such, I believe it is preferable to act now on a finite
number of matters that can be accomplished immediately. Any attempt in
the future to enact intelligence reform legislation from scratch,
especially reform of intelligence budget matters, will be subject to
the bitter turf battles involving the self-protection of entrenched
bureaucratic prerogatives that have characterized this and past efforts
at reform. And while the contentious issues of State driver's license
standards and refugee asylum must be addressed, it is far better to do
so in the context of hearings and additional input from interested
parties. But simply starting over in the next Congress will likely
accomplish little, if anything. Passage of this legislation--which
includes a statutory requirement for the issuance of Presidential
guidelines assuring that the statutory responsibilities of the heads of
various departments of our government will not be abrogated--will
provide a legislative base for Congress to build upon, while preserving
the requisite military chain of command.
Valuable preliminary objectives have been accomplished in this
legislation, consistent with the recommendations of the 9/11
Commission. This legislation creates a Presidential-appointed, Senate
confirmed director of national intelligence, DNI, who, while not
serving as the head of CIA, will 1. oversee national intelligence and
provide all-source analysis on specific subjects of interest across the
U.S. government, and plan intelligence operations for the whole
government on major problems such as counterterrorism; 2. manage the
national intelligence program and oversee the agencies that contribute
to it; and 3. ``manage and direct'' the tasking of collection and
analysis. The legislation also will establish a national
counterterrorism center, with a Senate-confirmed director, for
developing joint counterterrorism plans covering key missions,
objectives to be achieved, tasks to be performed, interagency
coordination of operational activities, and the assignment of roles and
responsibilities in the consolidated counterterrorism mission. Also,
under this bill the President must establish a national
counterproliferation center which, as envisioned by the provision's
sponsor, Majority Leader Frist, implements a key recommendation of my
1999 Commission to Assess the Organization of the Federal Government to
Combat the Proliferation of Weapons of Mass Destruction. And the
legislation will enable the implementation of other policy objectives
that I have favored such as expansion of the electromagnetic spectrum
to enhance first responder interoperability, deployment and use of
explosives detection equipment at airport screening checkpoints,
improved watch lists for passenger prescreening, improved border
security, including an increase in full-time border patrol agents and
detention beds, an increase in criminal penalties for alien smuggling,
and for those who seek to use weapons of mass destruction, an increase
in the number of serious criminal offenses designated as ``Federal
crimes of terrorism,'' improvements in financial crime enforcement and
terror financing abatement, authority to use our Foreign Intelligence
Surveillance Act powers against ``lone wolf' terrorists, authorization
to share grand jury information about terrorist threats with State and
local officials, and development of a national strategy on terrorist
travel and travel documents.
Many crucial objectives were not achieved, however. The budget
execution authority deemed essential for the DNI to exercise genuine
control over the intelligence community has been removed from the bill,
so that the appropriation for the national intelligence program does
not go directly to the DNI, and the DNI does not have authority to
direct the allocation of funds to the various elements of the
intelligence community. Further, the top line budget figure for the
national intelligence program will be kept secret, and thus
intelligence spending will remain unaccountable to the American people.
The DNI is left with the power to ``develop and determine'' the
national intelligence program budget, which is effectively the same
authority that the current DCI is given over the National Foreign
Intelligence Program budget by executive order. Also, personnel and
transfer authority has been further diluted in this final legislation.
Specifically, while the DNI can move intelligence community funds in
their year of execution, the heads of the intelligence community
agencies will have a right of refusal over any reprogramming or
transfer exceeding 5 percent of their agency's aggregate budget, or
exceeding $150 million, or involving the termination of an acquisition
program, e.g., satellite procurement. Personnel transfer is also
tightly circumscribed and can be accomplished only with the approval of
the Office of Management and Budget.
Beyond budget and transfer authority, the new DNI has not been
granted authority that approximates what I consider to be the
appropriate level of operational control over the various elements of
the intelligence community. The DNI also does not have, as the 9/11
Commission recommended, ``hire and fire'' authority over senior
intelligence community officials, but rather has the right of
concurrence in the hiring of senior intelligence community officials
and the right to be consulted in the appointment of the head of DIA.
Nor does the DNI control information infrastructure standards.
I also believe that the failure to include a statutory inspector
general weakens the oversight of the new DNI
[[Page S11948]]
and thus raises additional privacy and civil liberties concerns.
Finally, the legislation sets up an inadequate structure within which
the DNI must operate. I had initially proposed that the DNI serve as
the head of an independent agency, or department, and the final Senate
bill arrived at a similar ``National Intelligence Authority'' to house
the office of the DNI and the national counterterrorism center.
Contrary to the concepts conceived in the Senate, the NCTC and the
DNI's officers under this legislation will be housed within the office
of the DNI. In other words, there is no power base from which the DNI
can operate. He will have no ``troops'' other than those that filter
through the NCTC and the office, and no actual authority with which to
influence, direct, or control intelligence community entities and
personnel.
These shortcomings must be addressed in future legislation if we are
to have an intelligence apparatus that can be effective against 21st
century threats, while protecting constitutional rights.
It will not be easy, however, to overcome the ingrained bureaucratic
tendencies to protect turf and the status quo. It has recently been
reported that the Department of Defense fought extremely hard during
the conference committee negotiations to further reduce the powers that
would be accorded to the DNI. My experience in attempting to enhance
the budget and operational authority of the Director of Central
Intelligence in 1996 led me to the conclusion that the same turf
battles existing prior to 9/11 would endure during the process of
formulating this most recent attempt at intelligence reform.
Unfortunately, this is precisely what has occurred this year and, like
in 1996, the Pentagon has successfully attenuated intelligence reform
legislation.
Thus, while we have gained marginal advantages over current law and
practice in this legislation, the conference report in its totality
should be viewed as the basis for building upon the powers of the DNI
in future legislation. Conversely, if we reject this bill, it is ``back
to the drawing board'' when we reconvene with an entirely new set of
priorities to tackle in the next Congress. This delay will allow reform
opponents the time and renewed vigor to marshal their resources in
opposition to changing the status quo. It is far less likely that we
will accomplish anything meaningful on intelligence reform next year if
we must start from scratch, lacking the momentum of the 9/11 report and
without the pressure of the congressional and presidential elections.
I thank the Chair and yield the floor.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. Mr. President, we gather today in the Senate for an
historic occasion. What we are about to consider is a conference report
on the Intelligence Reform and Terrorism Prevention Act of 2004. In
about 250 written pages, we will literally rewrite the laws governing
the intelligence community of America.
This is an historic moment. It is rare, if ever, that the Congress
rises to the occasion as it has with this legislation. It is rare, if
ever, that we can find a bipartisan consensus on an item of such
controversy. Yet we have achieved it. The National Security
Intelligence Reform Act will make America safer. It will force our
Government to modernize the way we collect and use intelligence.
This legislation was born from the tragedy of 9/11 and the
determination of the victims' families that their loved ones would not
have died in vain. These courageous survivors are the reason this
congressional effort could not and did not fail. In their grief, many
people tend to withdraw, to say that they will mourn in private. These
victims' families, after a period of mourning, decided to step forward
and to lead our country and our Government toward a safer America.
Their dedication and their determination have resulted in this
document.
The bipartisan 9/11 Commission gave us an excellent blueprint, a
sense of urgency, and a constant reminder that we had to rise above our
partisan differences. We all know about this report. It is so well
known and so well read. It was even nominated as one of the great
literary works. That is rare for a Government publication, but it
deserved that nomination because it is well written, well thought out,
well prepared. Governor Kean of New Jersey, Congressman Lee Hamilton of
Indiana put together an extraordinary panel of Democrats and
Republicans who brought us this report. And this report was our
blueprint, as we sat down to write this historic legislation.
My personal contributions to this bill were in two specific areas.
After three years of effort, we finally broke through the technical and
bureaucratic obstacles to information sharing among our intelligence
agencies by adopting a proposal which I suggested for a new government-
wide approach, one with clear goals and clear authority to reach the
goals. And for the first time, at the suggestion of the 9/11
Commission, we added to our intelligence efforts a privacy and civil
liberties board which was crafted to ensure that we do not pay for our
security with our freedoms. Let me salute those who made this possible,
particularly on the Senate side.
Senator Susan Collins, chairman of the Governmental Affairs
Committee, has really been an extraordinary leader. She is a close
friend. We have worked on so many things together. I knew she would
rise to the occasion, but I didn't know that she would have the
endurance and the determination to bring it to this day. I watched as
the conference committee drove on and on, day after day, hour after
hour, week after week, month after month--many times appearing to
disintegrate before our eyes. She never quit. She just kept pushing
forward. She did it not just with a determination, but with such a
unique understanding of what was in this conference report. She would
dismiss critics in a moment if they misstated what was within the
report. She knew it cover to cover. She was well prepared.
Had Senator Collins been doing this alone, she might not have
achieved her goal. Standing by her side throughout was Senator Joe
Lieberman of Connecticut. Joe is my colleague in the Senate, a good
friend, and a great Senator. I think what he did with Susan Collins was
to demonstrate to America what Congress can do, that we can rise to the
occasion, that we can put aside partisanship and have a genuine, honest
discussion for the good of this country. That dynamic duo of Senator
Susan Collins of Maine and Senator Joe Lieberman of Connecticut, on our
side of the Rotunda, were the guiding force.
I want to say a word about Congresswoman Jane Harman and Congressman
Peter Hoekstra who, on the other side of the Rotunda, on the House
Intelligence Committee, did an extraordinary job as well.
They would be the first to add that they could not have achieved any
of this without extraordinary staff contributions. On my own staff, I
salute Marianne Upton, who has put in more hours than you could
possibly imagine, doing around-the-clock sessions, preparing different
portions of this bill; Joe Zogby, an attorney on my staff who really
carried the banner many times on issues of civil rights and civil
liberties, oftentimes a lonely battle, not always successful but with a
real determination and extraordinary skill that he brought to the
Senate; and Shannon Smith, a member of my staff who looked at this bill
from the perspective of defense issues and foreign policy issues. Those
three, from my point of view, made my presence felt, even when there
were times I could not be in conference committee meetings.
The path that led us to this point has not been without obstacles. We
had to make major compromises in order to move the legislation forward.
But this conference report proves that Congress could work in a
bipartisan manner to bring together strength and wisdom and produce
this significant bill.
Many people recall what happened on 9/11 and where they were when
they learned of the tragedy. I remember. Everybody listening remembers.
We also remember that late in the evening, after that sad and worrisome
day, the Members of Congress, on a bipartisan basis, gathered on the
steps outside and together sang God Bless America. How many times as I
went through Illinois and across this country people would say: That
was a good thing. We were sure glad you did it, to put aside your
differences and to stand together.
[[Page S11949]]
That day was a precursor of this day because this day we will stand
together again. There will be a vote today that will be a bipartisan
vote, and it will be a clear and definitive victory for the passage of
this legislation.
Let me speak to two or three areas that were of particular
importance. First, the Privacy and Civil Liberties Oversight Board. The
9/11 Commission realized that one of the problems we have is when we
give Government enough power to protect us, occasionally it
overreaches. That has happened in virtually every war and in every
period when there was a threat to our national security. Abraham
Lincoln, who I believe to have been our greatest President, suspended
habeas corpus during the Civil War. There were those who said he went
too far in usurping the Constitution. During the period of World War I,
when there was concern, we had the Espionage and Sedition Acts, which
some believe was an overstepping of governmental authority. In World
War II, Franklin Delano Roosevelt gave personal approval to the
Japanese internment camps, where innocent Americans were, in fact,
jailed and imprisoned when they had done nothing wrong, just for fear
that they might. In the Cold War, with our fear of the Soviet Union, we
went into the McCarthy era, questioning the patriotism of good
Americans, destroying lives and careers in the process. During the
Vietnam war, J. Edgar Hoover and the FBI compiled a list of suspects
across America. The President compiled an enemies list.
This list goes on and on. It tells us that as we try to be safe,
sometimes we go too far. The 9/11 Commission said we need to put into
place something that is unique, has never existed in history. This
Privacy and Civil Liberties Oversight Board will make certain they keep
an eye on Government activity, make sure it doesn't violate privacy or
civil liberties. I agree with the Commission when the Commission said
to us ``the choice between security and liberty is a false choice.'' I
believe, the Commission believes, we can be both safe and free.
We can protect the lives of Americans, and we can also protect their
liberties. That is what the Board is setting out to do.
As Governor Kean said in answer to a question I asked, this Board
should be ``disinterested'' and it should not be speaking for the
Government. It should be independent in its oversight of the Government
and its activities. This Board will have the authority to obtain
information, to ensure the Government is respecting our privacy and
civil liberties. If someone outside of the Government refuses to
provide needed information, the Attorney General will have authority to
subpoena it.
There is an exception for the National Intelligence Director and the
Attorney General to withhold information in the interest of national
security. That is understandable, but members of the Board and the
Board's staff will have high-level security clearances, so we expect
that it will only rarely, if ever, be necessary to invoke this national
security exception.
The Privacy and Civil Liberties Oversight Board will be required to
report to Congress about its work on an annual basis. These reports, to
the greatest extent possible, will be unclassified so we can all look
at the activities of our Government when it comes to respecting privacy
and civil liberties. This transparency will keep us informed. The
bright sunlight will shine on these activities when it doesn't
compromise national security. This Board will ensure that as we fight
the war on terrorism, we will respect the precious liberties that are
the foundation of our society.
The second area I worked in that I think may turn out to have
historic importance relates to information sharing. When the 9/11
Commission Report came out a little over 135 days ago, they kept
referring to one basic theme. This is what the report said:
The biggest impediment to all source analysis--to a greater
likelihood of connecting the dots--is the human or systemic
resistance to sharing information.
I have really focused on this since
9/11. So many colleagues looked at different aspects of the challenge
created by that terrible day. When I looked at information sharing, the
first thing I did was turn to the FBI, the premier law enforcement
agency in America, the top of the heap, the best and brightest when it
comes to law enforcement. I asked the basic question: Tell me about the
computers at the FBI headquarters on September 11, 2001.
Do you know what I learned? Just three years ago, if you looked at
the computers at the FBI, you found computers with no e-mail capacity,
no access to the Internet, no mechanism for word/name search matching,
and no capacity for the electronic transmission of photographs. Anyone
listening--particularly younger people--have to shake their heads and
say: Senator, they could have gone down to the local computer store and
bought a basic computer that had all of this capacity.
What happened? Why did the FBI fall so far behind in technology? What
happened was, in their vanity and in their bureaucratic protectionism,
they said: We don't need to go to other firms creating computers. The
FBI will create its own computer system.
They did and what a mess it was. On September 11, 2001, the
technological capability of the FBI was virtually nonexistent when it
came to computers. That is hard to imagine, isn't it?
As I spoke to every level that I could of Government leadership,
including Vice President Cheney; Attorney General Ashcroft; FBI
Director Mueller, every one of them conceded that this was an obvious
problem. Let me tell you something else. We asked the FBI and the
Border Patrol to establish a common fingerprint database.
That makes sense, doesn't it? If we are going to bank all the
fingerprints of suspects around America, wouldn't the Border Patrol
want to have an integrated network of fingerprints they could check
against the FBI base?
Let me tell you where we are on that. For more than six years, we
have been trying to achieve this. For more than six years, we have been
trying to get two agencies of Government to cooperate in comparing
fingerprints. Earlier this year, the inspector general of the Justice
Department reported it would take at least four more years to combine
the systems.
I am sure a lot of people following this debate are saying: He has to
be exaggerating. Why would it take ten years to reach the point that
the fingerprints collected by one agency of the Federal Government
could be compared to the fingerprint database of another agency?
It is a fact. It has to do with two things. First, it has to do with
equipment. It has to do with technology. And second, it has to do with
a mindset of cooperation rather than exclusion.
That is what led me to this whole issue of information sharing. I
tried to encourage a debate on this issue when we created the
Department of Homeland Security. I said to my colleagues on both sides
of the aisle: It is great for us to talk about a new department
bringing together all these agencies, but if they do not have
compatible computer databases and the will to share, then we are going
to lose out when it comes to information gathering.
I did not win that debate when we created the Department of Homeland
Security, but I am happy to tell you that we have won the debate when
it comes to this bill.
It is distressing to read chapter 8 of the 9/11 Commission's report
entitled ``The System was Blinking Red.'' It is hard to make sense out
of the information-sharing breakdowns before September 11.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. DURBIN. Mr. President, I ask unanimous consent for 10 additional
minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DURBIN. On July 10, 2001, an FBI agent in the Phoenix field
office sent a memo to FBI headquarters and to two agents on the
international terrorism squads in the New York field office advising of
the ``possibility of a coordinated effort by Osama bin Laden'' to send
students to the U.S. to attend civil aviation schools--the famous
Phoenix memo.
This Phoenix memo went into the system and virtually disappeared. On
its face, this memo was fair warning. This memo was a flare that went
off, climbed into the sky, and flashed a warning of danger, and no one
noticed. This was July 10, 2001. The Phoenix memo went forward, and it
disappeared in the sky without even notification.
[[Page S11950]]
The notice was there. Something needed to be done, but no one
responded within the FBI or in the other appropriate agencies.
As we learned, the Phoenix memo was not an alert about suicide
pilots. We learned the author was more concerned about a Pan Am 103
scenario. The fact is, whether they are talking about the Phoenix memo
or what led up to the intelligence investigation involving Zacarias
Moussaoui, we did not have a sharing of information among agencies that
might have protected America and the 3,000 victims on September 11.
For well over two years, I have urged that we do something profound
and historic. I thought about the Manhattan Project. That was a
project, if you recall, that dates back to the attack on Pearl Harbor.
Prior to that attack, Franklin Roosevelt had his atomic project that
was looking into this new scientific research when it came to use of
the atom. It was moving along at a snail's pace, and then came December
7, 1941. On that date, the President said we were shifting into a new
approach. We want to know if we can use this new research in science to
create atomic bombs, weapons that we may need in this war.
He shelved the commission that had been working on it and created a
new group under the head of GEN Leslie Groves. GEN Leslie Groves, who
was involved in the Army Corps of Engineers, dubbed it the Manhattan
Project. What the general said was we are going to break all the rules.
We are going to have Government leadership to develop this atom bomb,
but we are going to turn to the academic side, the universities doing
research, and we are going to turn to private business, and we are
going to create what this country needs to defend itself. And we did.
The Manhattan Project met its goal and produced the bombs that ended
the Second World War.
I thought we needed something very similar when it comes to
information sharing and technology in fighting this war on terrorism.
This bill moves us in that direction. It creates an environment for us
to have computers that communicate with one another, databases that can
work with one another, information that can be shared. But all of the
good words in this bill mean little or nothing if there is not the will
in these agencies to make it happen, not only the person supervising
this new environment, but each person who is involved at each agency to
share this information and to make certain that we do not protect turf
at the expense of protecting America.
Let me address one aspect of this bill--a bill which I am happy to
support and will vote for--that is troubling to me. It is an aspect of
the bill where we lost a provision in the conference which I think is
very important.
That is a provision that was added in the Senate relative to the
detention and humane treatment of captured terrorists. A provision in
the Senate bill, which passed 96 to 2, addressed it. Unfortunately, the
House Republican conferees insisted the provision be removed from the
final version of the bill, so the bill is silent.
This is especially serious from my point of view because of the poor
track record over the last several years when it comes to the use of
torture.
In a January 2002 memo to the President, White House Counsel Alberto
Gonzales concluded that the Geneva Conventions, which have guided us
for decades when it comes to the humane treatment of prisoners, in the
words of Mr. Gonzales were ``quaint'' and ``obsolete.''
In August 2002, the Justice Department sent a memo to Mr. Gonzales in
which they adopted a new, very restrictive definition of torture. They
stated that physical abuse only rises to the level of torture if it
involves ``intense pain or suffering of the kind that is equivalent to
the pain that would be associated with serious physical injury so
severe that death, organ failure, or permanent damage resulting in a
loss of significant body function will likely result.''
They also concluded that the torture statute, which makes torture a
crime, did not apply to interrogations conducted under the President's
Commander-in-Chief authority.
Under our Constitution, the President does not have the authority to
make his own laws by creating a new definition of torture, and he
cannot choose which laws he will obey. There is no wartime exception to
our Constitution.
In November 2002, Defense Secretary Rumsfeld approved the use of
coercive interrogation techniques at Guantanamo Bay. These included
removal of clothing, using dogs to intimidate detainees, sensory
deprivation, and placing detainees in painful physical conditions.
According to a recent Red Cross report, the use of these techniques has
grown ``more refined and repressive'' and constitutes torture.
There are so many unanswered questions about the administration's
position on the use of torture. Mr. Gonzales said, ``We categorically
reject any connection'' between the administration's torture memos and
the abuses at Abu Ghraib, Guantanamo Bay, and elsewhere. But how can
the administration reject these connections when the torture techniques
that they approved for use in Guantanamo were being used in Abu Ghraib
and elsewhere in Iraq?
Mr. Gonzales was recently nominated to be the Attorney General. I
look forward to getting to the bottom of this issue when he comes
before the Judiciary Committee in January.
The 9/11 Commission correctly concluded that the Iraqi prisoner abuse
scandal has negatively affected our ability to combat terrorism. They
wrote:
Allegations that the United States abused prisoners in its
custody make it harder to build the diplomatic, political,
and military alliances the government will need.
As a result, the Commission recommended that the U.S. develop
policies to ensure that captured terrorists are treated humanely. That
is exactly what we did in the Senate bill. In fact, the Senate
provision is similar to an amendment which I offered to the Department
of Defense authorization bill requiring that the Department issue
policies to ensure that they will not engage in torture or cruel,
inhumane, or degrading treatment, a standard embodied in our
Constitution and in numerous international agreements.
The Senate intelligence reform bill would have simply extended these
requirements to the intelligence community. What possible basis could
the House conferees have had for opposing this provision, turning its
back on the Geneva Convention's basic standards that we have held in
this country for decades?
I think what we have here, unfortunately, is a decision by the
conferees to be less than explicit about America's commitment. We need
to make certain that we stand by standards which America has preached
to the world for decades, that we realize we are not just not talking
about detainees captured by our Government, but the potential treatment
of Americans and American soldiers facing detention.
For us to remove this provision from this new bill is troublesome to
me.
I think the intelligence community should be held to the same
standards as the Department of Defense, and taking this language out of
the bill will make that very difficult to monitor, as I hoped we would
be able to do.
As the 9/11 Commission report admonishes, we have to think more
imaginatively to protect America and use information in a more sensible
and thoughtful way. Intelligence is the first line of defense against
terrorism. With this legislation, our intelligence gathering, analysis,
and application will be significantly improved. No agency can do it
alone. Collective vigilance requires mutual cooperation and not just
within the executive branch. We need to do our part on Capitol Hill.
Congress needs to be part of this new concerted effort. I am ready to
work with administration officials to make this happen. I salute
President Bush, Vice President Cheney, Speaker Hastert, and many other
Republican leaders who stepped up to make certain they did their part
to pass this legislation.
As we have done on the Senate side, we have demonstrated that this
kind of bipartisan cooperation makes America a safer place.
Finally, thanks to the decision of my colleagues on the Senate
Democratic side, I step into the capacity of the Senate whip, the
assistant Senate leader, in a few days. As a result of that, I will
have new responsibilities on the floor and more demands on my time. It
was necessary for me to step aside from
[[Page S11951]]
my service on the Governmental Affairs Committee, which I really
enjoyed during the period I have been in the Senate.
I am glad the last action of the committee was the passage of this
important legislation. I think a lot of work that was put in in that
committee paid off with the passage of it. I am going to miss this
committee. I wanted to make certain that whoever would fill that slot
would have the time to dedicate to its important work of protecting
America.
I thank Governmental Affairs Committee Chairman Susan Collins, as
well as Senator Lieberman, for all of the kindness they have extended
to me during my period on the committee. I hope I will be able to
continue to help them in my new capacity as the Democratic whip of the
Senate.
I yield the floor.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Mr. President, I thank the Senator from Illinois for his
comments. He has been an extraordinarily active member of the
Governmental Affairs Committee. He has contributed to so many different
investigations. Whether it was our review of mental health services for
children or the food safety investigation, he has always been front and
center in the committee's deliberations, as he has been with this
intelligence reform bill. We will miss very much having him as a member
of the committee, but I am grateful for his past service, and we hope
he will return to the committee some day.
I know that two of the Homeland Security and Governmental Affairs
Committee members are waiting to speak, so I will not prolong. I will
talk more about my conferees, my wonderful, able group of conferees,
later.
I ask unanimous consent that Senator Carper be recognized next. He
has already reserved time under the time agreement; to be followed by
Senator Coleman, who has already reserved time under the time
agreement; to be followed by the chairman of the Intelligence
Committee, Senator Roberts, who similarly has reserved time. Two out of
the three of these individuals were conferees on the bill. Two of the
three also are members of the Governmental Affairs Committee. Each of
them has played a significant role in bringing us to where we are
today, and I am grateful for their support and involvement.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Delaware.
Mr. CARPER. Mr. President, I say to our chairwoman of the committee,
Senator Collins, a heartfelt thank-you for the leadership and
persistence that she and my good friend Joe Lieberman have demonstrated
to get us to this day.
I also say to the President, thanks for using some of that political
capital. You picked up a little bit last month, and I am pleased you
have decided to invest a little bit of it in a worthwhile cause.
I plan to vote for this bill. I was privileged to be a member of the
committee in the Senate that developed the proposal under which this
bill is based, and we are happy to be here for this day.
To the members of the 9/11 Commission who have worked hard for about
18 months, their staff, a lot of folks who lost loved ones who provided
the impetus, really the wind beneath the wings for the Commission and
really for this effort, I say just a heartfelt thank-you for their
efforts, and I hope they are pleased with where we are today.
Is this proposal perfect? No. Few of mine are. Is it better? You bet
it is. It is a real improvement.
Back in 1947, the year I was born, the CIA was born as well. The
intelligence structure that was created around the CIA and Cold-War
years that followed was a structure that was designed to enable us to
win the war against communism, the Cold War. That war is over. We won
that war. We have a new war that we are fighting today, and it is a war
against terrorism.
Just as the one approach worked well for many years--our intelligence
apparatus worked well for many years against communism--it does not
necessarily mean it is going to work well against terrorism. In fact,
it has not.
When I was a naval flight officer, when I was not flying in a P-3
airplane, one of my ground jobs was to be the air intelligence officer
on the ground, briefing other crews for their missions. We had a crew
over here that was flying a top-secret mission, needed information
about it, and then another group over here with the same clearance that
did not fly that same mission. We did not brief the crew that was not
going to fly the mission. There was a need to know. If they had a need
to know, we provided the information for them. If they did not have a
need to know, we did not provide it for them. It worked well in naval
aviation. It did not work so well when it came to sharing information
across 15 different intelligence agencies on information about
terrorism.
We had one agency that knew there were bad guys around the world who
wanted to come here and hurt us. We had another agency that knew the
names of the people who actually came in and actually could have said
that these were some of those bad guys. We had another agency that knew
folks were being trained to fly in airplanes, not to land them, not to
take them off but to literally fly them straight and level. Among those
15 different agencies, I call them stovepipes, they had the information
but they never talked. At least they did not talk enough. We did not
put it together.
People talked about connecting the dots. That is exactly what did not
happen. So we were not talking; we were not sharing information. There
was a need-to-know mentality that existed and has existed for a long
time with respect to our agencies. It has to change. This bill is going
to change it.
Another problem we had, nobody was in charge. There was nobody to
assess accountability and say you were accountable for not letting this
happen. With this provision, we are going to have a powerful person put
in place, nominated by the President, selected by the President. It has
to be an extraordinary individual, somebody smart, somebody who enjoys
the confidence of both sides of the aisle, somebody who will enjoy the
confidence of the intelligence community, somebody who will be willing
to work real hard. I am sure that person is out there. My hope is the
President will find him. My hope is we will confirm that person.
Some people say this is not a perfect bill; there are some provisions
they do not like maybe with respect to our borders, maybe with respect
to immigration, maybe with respect to the rights and prerogatives of
the military and making sure they are still in a position to be strong
and provide the intelligence that is needed when it is needed to our
battlefield soldiers.
This is not a constitutional amendment. This is not something that is
in concrete. This is a bill. It is a bill that has been hard fought and
a compromise has been well won, but it is not forever. To the extent we
go forward and we find that changes need to be made, we can make them,
and we should.
In conclusion, we have been working at this stuff for a long time.
People have known the system was broke for a long time. We have had any
number of recommendations and studies that said, fix this system and
this is how to do it. We have not done it. Today we have the
opportunity to change it and to take a real step in the right
direction. We would be foolish not to. I am happy to say we are
not foolish. We are doing the right thing. It is time to seize the day,
and that is exactly what we are going to do.
My thanks again to all those who have worked so hard to get us to
this point.
I yield back my time.
The PRESIDING OFFICER. The Senator from Minnesota.
Mr. LEVIN. Mr. President, will the Senator from Minnesota yield for a
unanimous consent request, unless there was someone else who was in
order here? I wonder if we could set up an order following the Senator
from Minnesota, the Senator from Kansas be recognized, and then I be
recognized following the Senator from Kansas.
Ms. COLLINS. That is fine.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
The Senator from Minnesota.
Mr. COLEMAN. Mr. President, I serve on the Governmental Affairs
Committee. I served on the conference committee that helped draft this
bill, and I am going to be very proud to vote for this bill this
afternoon.
[[Page S11952]]
I wish to start and end by thanking the chair, Senator Collins, for
her incredible leadership. This was not easy to do. When we left around
Thanksgiving, there were a lot of folks who said this would not happen,
that it could not be done. We had people who had some very strong
opinions about a wide range of issues, and there were differences.
Leadership makes a difference. The leadership of Chairman Collins
made a difference. The leadership of Ranking Member Lieberman made a
difference.
I will also note, I am sure before we finally vote on this the
chairman will talk about staff. But I see Michael Bopp, who is the
staff director and chief counsel of the Governmental Affairs Committee.
Staff worked very hard. They did an extraordinary job. We were on
break, weren't around, but folks were working day and night over
holidays to give us this opportunity to get it done. I do want to
compliment Mr. Bopp and all of the staff, on a bipartisan basis,
including my own staff who worked so hard. America should thank them
because this bill is good for America. This bill makes America safer.
As I look back on the opportunities I had in my first session of
Congress, the 108th, I believe the passage of this bill is the most
significant thing this Congress has done. We have made America safer.
There are a lot of important achievements--Medicare reform, tax cuts--
but in the end you can't have economic security without national
security. Americans cannot live if they live in fear. The threat of
terrorist attack is the greatest threat that faces America, and we have
now taken substantial steps in making America safer. We make us safer,
as I said before, by the creation of a Director of National
Intelligence, a single person whom we can say is in charge.
I was struck during the hearings by my understanding of the statement
of George Tenet that a few years before
9/11, he made a statement, sent out an e-mail, that we were at war with
al-Qaida, but a lot of folks didn't know the war was happening. The CIA
didn't talk to the FBI and the Defense Department was not coordinated
with the CIA to the degree it needed to be for us to be as safe as we
should be. This bill addresses that by creating a Director of National
Intelligence to advise the President, to be the go-to person, the
person we know is in charge. It then creates a National
Counterterrorism Center so we can bring the best and brightest together
to make America safer.
This bill is not the same bill the Senate passed, but it is a good
one. At the beginning of our efforts way back in June, Senator Carper,
from Delaware, shared the credo that one of his constituents lived by:
The main thing is to keep the main thing the main thing. I believe we
have done that in this bill.
This bill implements both of the 9/11 Commission's most important
recommendations. It creates a Director of National Intelligence to
oversee and coordinate the effort in the intelligence community. A
central problem the Commission identified was that prior to 9/11, no
one was in charge of our intelligence operations. We have taken care of
that problem.
It is important to note a lot of people were doing a lot of things
and doing good things, but they were not sharing information, they were
not coordinating efforts to the degree we needed. We had this concept
that has been talked about on the Senate floor of silos, folks working
in their own areas, doing a good job. But the reality is, to be
effective, you can't work in a silo, you can't work in isolation; you
have to work together so all the activities of all those involved in
intelligence reflect similar priorities.
We have corrected that now. The DNI is in charge of intelligence. He
has the power to shape the intelligence community over time. He can
implement joint policies on personnel, training, information systems,
and communications. The DNI also has a National Counterterrorism Center
to lead our counterterrorism efforts. The Center will contain the best
and brightest the Government has. Merely by creating these two new
entities we take an important step forward. This is not about more
bureaucracy; this is about more effective, focused, targeted efforts to
improve the safety of America, to improve our intelligence efforts. It
is a base upon which we can continue to move forward.
Like all legislation, this bill represents a compromise. On
intelligence reform, we agreed to many of the provisions in the House
bill. We gave the Department of Defense more of a say in how funds are
allocated after Congress appropriates them. We agreed to keep the total
amount of money spent on intelligence classified. But the House, in
turn, has agreed to respond to many of our concerns with the rest of
their original language.
This bill makes important reforms in immigration and law enforcement
powers but omits the most controversial sections included in the House
bill, and I believe that is wise. We need to address the issue of
immigration reform. It is a critical issue. But we cannot allow our
efforts to improve intelligence, we cannot allow our efforts to improve
security to get pushed aside, to somehow get held up because we have
not had the kind of debate and analysis and scrutiny we need to have in
both Chambers on the important issue of immigration reform.
9/11 was a horrible tragedy. We saw the face of evil. We learned the
desperate measures people will take to stamp out our way of life. But
we have seen and we have learned. From learning--I want to stress
this--in this process we had extensive hearings. We moved forward
quickly, but we didn't rush to judgment. The Senator from Kansas,
Senator Roberts, who chairs the Intelligence Committee, has been part
of our discussions. He noted there have been decades of efforts to
reform intelligence. We had a base to build upon, but we had not moved
forward until today, and we have moved forward building on so much of
what has been done in the past and building on a record, which we heard
about from folks who headed the CIA, doing operations work today.
There was a very extensive analysis of what the needs are. We looked
at the work of the Commission, the families of the victims, the history
of intelligence reform, and we made a difference today. For that,
Chairman Collins, Ranking Member Lieberman, and all involved--and the
President of the United States--should be proud. The President of the
United States played a tremendous role in getting this done.
One final point before I yield the floor. When we talk about
intelligence reform, we do talk about the big things. We talk about
creating a Director of National Intelligence and the National
Counterintelligence Center. But I also want to take a moment to talk
about what this bill does for the rest of us, some of the folks at the
local level.
I come from Minnesota. It is a small State, located on our border
with Canada. But, like her northern neighbors such as Maine, Minnesota
can be a gateway for many of the goods and people crossing by boat,
car, plane, and train. They may end up in Chicago or San Francisco or
New York, but many come in through the border States. Homeland security
starts with border security.
This bill recognizes that. It understands that when it comes to
border security, it is going to be folks at the local level, not folks
at the Federal level, who are going to be the first on the scene. That
is why this bill contains a provision to ensure that State and local
officials will be part of an integrated command system so first
responders can communicate with each other. Communication and teamwork
go hand in hand, and thanks to this bill, if we face another 9/11,
local, State, and Federal officials will not only be ready but will be
able to work as a team.
This bill also understands that border security takes resources and
manpower by providing an additional 10,000 agents over 5 years to
protect U.S. borders and unmanned aerial vehicles to monitor our border
with Canada. This is good news for America and good news for places
such as International Falls, MN.
International Falls is just a small town in Minnesota, but because of
its location, this city is among the 50 busiest gateways in this
country, admitting many hundreds of thousands of men and women through
it into this country each year. I went there this August to see what
was going on and to talk with people directly responsible for our
border security, people like
[[Page S11953]]
Paul Nevanen, director of Koochiching County's Economic Development
Authority, and Glen Schroeder, the chief agent in charge of border
patrol. People like Paul and Glen highlighted the difficulties they had
just communicating with their Federal counterparts and the difficulty
of adequately screening entry of people into the United States without
proper technology and resources. After talking with the people at
International Falls, I came back to Washington and fought hard for our
folks on the border. This bill reflects that hard work. It gives them
the resources and manpower necessary to support and secure our border.
This is a good bill. I am going to vote for it with a great sense of
pride. There are some who may say we could walk away from this bill and
hope for something better next year. That would be irresponsible. This
bill makes America safer. Passage of intelligence reform will only
become more difficult as time passes--unless, God forbid, there is
another terrorist attack. In that case, of course, there will be
another call for reform. But I submit that Congress will have failed in
its duty to the American people if it waits until then to do anything.
We don't have to wait. We have a great bill before us. We have been
provided with great leadership from Chairman Collins, from the ranking
member, and the President's efforts. I applaud all of them. As I said
before, I look forward to voting for this bill.
I yield the floor.
The PRESIDING OFFICER. The Senator from Kansas.
Mr. ROBERTS. Mr. President, it is my understanding that I have
allotted to me 10 minutes. I had originally understood it was 15. I ask
the distinguished chairman of the Governmental Affairs Committee if she
could yield me 5 minutes out of her time, which I know is precious,
thus making it 15?
Ms. COLLINS. I am happy to yield to the distinguished chairman of the
Intelligence Committee 5 additional minutes from my time. It is my
understanding that the ranking member of the committee, the vice
chairman of the committee, is also seeking some additional time.
In between, however, Senator Levin has set a schedule to speak. I
appreciate the order amongst Members. I will also be happy to yield 5
minutes from Senator Lieberman's time to Senator Rockefeller.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Kansas is recognized for 15 minutes.
Mr. ROBERTS. I thank the Presiding Officer, and I thank the chairman.
Mr. President, one day after the 62nd anniversary of the attack on
Pearl Harbor, and 3 years and 82 days after the 9/11 terrorist attacks
on our country, we will now pass the National Security Intelligence
Reform Act of 2004.
I rise in strong support of this conference report which is a
remarkable first step in our goal to strengthen and improve our
Nation's intelligence capabilities.
My colleagues, we should start--and others have said this, and it is
certainly true--by recognizing Senator Collins and Senator Lieberman
and their staff for their efforts to get a bill which will have a
positive impact on our intelligence community. They have put in a
tremendous amount of hard slugging, sometimes very contentious and very
difficult work, and overtime, since they began this effort back as of
the 1st of August. I thank them. Together, we will have made a positive
difference in behalf of our national security.
I would also like to thank President Bush for his instrumental
efforts in getting this conference report moving. Without his
leadership, this reform would still be in the midst of a turf and issue
gridlock. The President knows that national security demands
intelligence reform and that the status quo is not an option. So I
thank the President for weighing in.
All one had to do is listen to the debate on this bill in the other
body yesterday to understand that this bill by necessity is a
compromise. When you compromise you do not get everything you want. In
my case--and in the view of many who serve on the Senate Intelligence
Committee--it does not do everything that I believe is necessary to
clearly streamline the structure of our intelligence community. It is
no secret that I believe we should have gone farther.
It is perplexing to me and a paradox of enormous irony that after the
9/11 investigation by both the Senate and House Intelligence
Committees, after our Senate committee's WMD report, after the findings
of the 9/11 Commission, after the report of the President's WMD
commission, and after all of the hearings we have held within the
appropriate committees and the Senate Intelligence Committee--we have
held over 200 hearings this session, 60 percent more than the previous
session of Congress--after all of this, and the knowledge of the
attacks on the Khobar Towers, the USS Cole, and the embassy bombings,
9/11, terror attacks all over the world that we know are connected,
that still some believe we do not need comprehensive reform or have or
will vote against this legislation because they believe it is a rush to
judgment or that the legislation did not include what they deem their
top national security priority.
In this regard, some have argued that this bill will interrupt the
military chain of command or prevent the men and women of the armed
services from receiving crucial intelligence information. Certainly
these arguments should not be ignored. But in the end, this legislation
does very little to modify the chains of command within the
intelligence community.
The tactical intelligence elements of the U.S. Government remain
clearly and explicitly under the command of the Secretary of Defense.
The leadership construct for national intelligence assets remains
largely unchanged. The Director of National Intelligence remains
primarily a budget and policy leader for national intelligence assets.
Undoubtedly, the Director's budget and policy authorities are
strengthened. But day-to-day operational control of our national
intelligence collection agencies remains dispersed. The Central
Intelligence Agency will now be led by an independent Director. The
Secretary of Defense retains the operational control of the National
Security Agency, the National Geospatial-Intelligence Agency, and the
National Reconnaissance Office.
Note the word of all three agencies, ``national.''
These are not only combat support agencies, but national policy
assets.
I cannot see how the existing chains of command have been seriously
changed.
The history of the intelligence community does not support the
opponents' second argument--that the Armed Forces will somehow be
deprived of intelligence by a stronger Director of National
Intelligence. The former DCI has always set requirements and priorities
for collection by national assets. Moreover, neither the President nor
Congress--certainly not this Member of Congress, a former marine--would
ever permit the crucial intelligence needs of our military to be
ignored by the Director of National Intelligence.
Certainly, the requirements of our men and women in the military must
be met. That has been said over and over again, especially in the
House. But we must also recognize that the principal user of national
intelligence that is produced by our national intelligence agencies are
our national policymakers, primarily the President of the United
States, the National Security Council, and the Congress of the United
States. The DNI must have authority to ensure that the intelligence
requirements of the President and other national policymakers are met.
Thus, while the Department of Defense is by volume--everybody
understands that, by volume--the largest user of national intelligence,
we must not forget that our national collection assets at the CIA and
at the NSA, the NRO and the NGA--what the critics call combat support
agencies--serve our policymaking needs as well.
However, while this is not the best bill possible, it is the best
possible bill. It is also a big step in the right direction.
As has been said it will create a Director of National Intelligence,
or a DNI, who is separate from the Director of the CIA. It will give
this Director, the DNI, marginally improved budget authorities over our
intelligence community agencies. It will provide authority to conduct
quality control
[[Page S11954]]
checks of the analytic products of our intelligence community. It will
also create a National counterterrorism Center which will, I hope,
eventually serve as the Nation's true clearinghouse for terrorist-
related intelligence. These are, in my view, very positive steps
forward in our intelligence community.
I would also like my colleagues to take note of several other
important and long overdue provisions in this bill. For example, this
bill will consolidate what is now a needlessly complicated and
expensive background investigation and security clearance process under
one agency. Today, it takes too long to get good people in very crucial
positions. Noting the debate in the other body, it is important to
stress this bill will also bring important improvements to our Nation's
border security.
I am not, however, under any illusions. This bill is not perfect. No
bill is. Senator Collins and Senator Lieberman were forced to put the
Senate bill through the filter of the demands of the House and still
manage to get a bill that is a step in the right direction--a big step.
In conjunction with the administration, we in the Congress--more
especially those of us who had the privilege of serving on the House
and Senate Intelligence Committees--will need to nurture this new
intelligence structure over the years and clarify as necessary the
various authorities in order to make it effective.
For those who are uneasy with the unprecedented speed with which this
bill was brought to this point, I would like to offer the reassurance
that what we will pass today is certainly not the final chapter on the
reform of our intelligence. After this bill becomes law, we will
monitor its implementation and make any needed adjustments in
subsequent years. If one looks at history, the process of amending and
improving the National Security Act of 1947 began almost immediately
following its passage. I expect that this bill will be no different.
This bill is only the beginning of the intelligence reform
process. Since July, several other Senators and I have made it clear
that while we believe this bill has many good provisions, what it fails
to do is create a leader of the intelligence community who is clearly
in charge and as a result is fully accountable.
That does not make this a bad bill. It just means that Congress must
continue to monitor and guide the intelligence reform process. We must
continue the logical reform of our intelligence community. If we are
not diligent, our newly created Director of National Intelligence could
end up a director in name only. Our national security certainly demands
better.
I am determined to work with my colleagues in this Congress and the
administration to continue the process that has been started by this
reform effort. This process will be difficult, but it is essential and
we must persevere. President Eisenhower, a five-star general, a
national hero, was unable to achieve the reforms he sought to unify the
Department of Defense in the 1950s. Instead, President Eisenhower's
reforms would have to wait another 30 years for the Goldwater-Nichols
Act which made the U.S. military the very remarkable and unified force
it is today.
The forces of the status quo beat back President Truman's efforts in
1947 to put military operations under the control of the Joint Chiefs
of Staff and the unified commands that had shown their utility during
World War II. Instead, in 1947, President Truman was forced to accept a
National Security Act that codified a system in which the military
services were loosely joined under a very weak Joint Chiefs of Staff
organization that had no significant authority independent of the
military services.
The compromise President Truman was forced to accept mirrors in many
ways the compromise bill we are voting for today. But there is reason
for optimism. That shell of a Joint Chiefs of Staff which was codified
in 1947 did provide the foundation upon which the Goldwater-Nichols Act
would build the remarkable unified command and control structure we
have today.
In addition to serving as that important foundation, the Joint Chiefs
of Staff also became a voice. That voice was independent of the
military services turf interests in the debate over how to continue the
process of the reform of our defense. That was the first step in the
struggle that resulted in the Goldwater-Nichols Act and a major
overhaul of the military command structure.
This bill does not give the Director of National Intelligence all of
the authorities I would like to provide. It is my sincere hope,
however, that it will at least create the same kind of voice,
independent of the institutional interests that currently divide our
intelligence community, a voice that can lead us toward the ultimate
goal: a more rationally organized intelligence community with a clear
chain of command and the real accountability that comes with it.
Since 1949, 24 attempts have been made to pass comprehensive
intelligence reform legislation. I thank all concerned that we have
been successful on the 25th attempt. It has been 3 years and 82 days
since September 11. On behalf of the families of the victims of
September 11 and on behalf of national security and every American, I
am thankful we will not wait another day.
I yield the floor.
The PRESIDING OFFICER (Ms. Murkowski). The Senator from Michigan is
recognized for 15 minutes.
Mr. LEVIN. I thank the Presiding Officer. I ask unanimous consent,
instead of my proceeding, that the Senator from Florida be recognized
and I be recognized following that; and following that, Senator
Rockefeller, and then we proceed to Senator Byrd, who, I understand,
has agreed to begin at about 12:40 instead of 12:30.
I ask unanimous consent that be the order of debate.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Florida.
Mr. GRAHAM of Florida. Madam President, I am going to submit for the
Record a fuller statement, but in deference to the limited time we
have, I have a few brief comments on what I consider to be one of the
most important enactments of my 18 years in the Senate.
This is an accomplishment which did not happen beginning this summer
but rather has been underway for at least the 15 years since the fall
of the Berlin Wall. I am extremely pleased we have now arrived at the
point we may be in a position to enact serious intelligence reform for
the first time in over 50 years.
There are many important aspects of this legislation. One, it will
centralize the intelligence agencies, not as an end in itself, but to
create the platform from which we can then decentralize. As Senator
Roberts was discussing, in 1947, the various separate military
branches--there was a Secretary of the Army, there was a Secretary of
the Navy--were brought together under a Secretary of Defense. Then, 39
years later, that centralized organization was decentralized into the
combatant joint commands that now are the principal warfighters for
America.
That is exactly the process anticipated here. The only major
difference is it will not take 39 years to get from centralization to
decentralization.
A second aspect of this bill I point out, we have much work to do in
the area of human intelligence. The case could be made that both the
war in Afghanistan and the war in Iraq were a product of our inadequate
human intelligence capabilities. We must make a major effort to rebuild
our human capabilities. This bill takes a step in that direction
through emphasis on more linguistic training in the Defense bill that
was the establishment of what I refer to as the intelligence equivalent
of the Reserve Officers Training Corps. We need many other initiatives
to fill this gaping hole in our intelligence.
The third area--and I particularly commend Senator Wyden and Senator
Lott and others involved in this--is to try to make our security
classifications more truly an issue of security rather than agencies
trying to bury their mistakes.
In this legislation we establish a new classification board that will
review decisions that are made in the executive branch to determine if
there has been an excessive use of secrecy. Our former colleague,
Senator Pat Moynihan, used to say that secrecy is for losers. We do not
want the United States to be in that category of losers.
What we are doing today is an important step. It is not by any means
the
[[Page S11955]]
last step. Let me mention a few things that will need to flow from our
decision today. Some are rather tangential to the issue of intelligence
reform. As an example, we are now requiring any visa applicant to have
a face-to-face encounter with a visa agent. That may sound like an
appropriate protection against inappropriate people getting access to
the United States.
There are also, however, very practical matters. A country that will
be of increasing significance to the United States is the country of
Brazil. Brazil is a country which is the size of the continental United
States plus a second Texas. It is the fourth largest country in
population in the world. Today we have three places in which a person
could get a visa. They are relatively close together. It would be as if
the only place you could get a visa in the United States was
Washington, New York, or Boston. We have to develop some strategy to
make it more reasonable for persons around the world, but particularly
in these large-sized nations that are so important to our economy, to
be able to have reasonable access to the visa process.
The second part of this legislation relates to the United States
relationship with Saudi Arabia. It points out that the Government of
Saudi Arabia has not always responded promptly or fully to the United
States request for assistance in the global war on Islamic terrorism.
I believe we need an enormous increase in the transparency of the
relationship between the United States and Saudi Arabia, and that is a
goal we have been retreating from. In the joint House-Senate report on
the factors that led to 9/11, an 800-page report contained 27 pages on
the role of Saudi Arabia in 9/11. Every one of those 27 pages was
classified, so the American people in that and other instances have
been denied access to the information about our relationship with Saudi
Arabia. I hope the provision contained in this legislation will move us
toward a greater frankness and candor in that important relationship.
Finally, this legislation places responsibility for important future
actions in at least three places. One of those is the President. The
President will have the responsibility for making a series of critical
appointments so there will be the human beings responsible for
implementing this legislation in a creative, dynamic manner.
He also must assure there is a value system in relationship to this
new office and other positions which are also his responsibility to
appoint. The most notable of these will be between the Director of
National Intelligence and the Department of Defense. It will require
continued Presidential involvement and monitoring to assure that
relationship achieves rather than frustrates the objectives of this
legislation.
The new Director of National Intelligence will have enormous
responsibility. He or she will have to establish clear priorities for
the intelligence community, and this will be reflected in the creation
of additional national intelligence centers. These are the
decentralizing units that have been established in the case of
terrorism and counterproliferation and will be under the directive of
the DNI to establish in other emerging threat areas. The DNI must also
revise current budget priorities, particularly in areas such as
research and development, to reflect response to our emerging threats.
He also will have to establish communitywide personnel policies that
support the recruitment, training, and retention of the most effective
intelligence community personnel.
Finally, there will be a responsibility here on the Congress. In the
Senate, we have taken steps to reform our oversight of intelligence. No
longer will there be an 8-year term limit. No longer will intelligence
budgets go through the Defense subcommittee but, rather, through their
own Appropriations subcommittees.
These are good starts. But we are also going to have to look at the
culture of the congressional oversight committees, focusing much more
on the future and the threats that are coming at us and relatively give
less of our time to constant focus on the accidents that can be seen
through the rearview mirror. By its nature, the intelligence community
is going to create accidents from time to time. They need to be
reviewed, but we cannot afford for them to be totally consuming in
terms of our oversight responsibility. It is in the future that the
threats are to be found, and it is our responsibility to be able to
assure the American people that our intelligence communities are
capable of identifying those threats and providing information to
decisionmakers to mitigate the chances that those threats will become
the next Pearl Harbor or the next 9/11 tragedy.
Madam President, in conclusion, I thank all the people who have
played such a significant role. Obviously, Senator Collins and Senator
Lieberman deserve special notice. But there are many other people in
this Chamber today, such as Senator Roberts and Senator Rockefeller,
who have played a continuing role in seeing that our intelligence
community is able to serve its responsibility to the people of America.
Thank you very much.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Madam President, I ask unanimous consent that I be allowed
to yield 2 minutes of my time to the Senator from New York.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from New York is recognized.
Mr. SCHUMER. Madam President, I thank my friend from Michigan for
yielding. I thank all those who worked on this bill. It is not
everything we all would have wanted, but it is a large improvement, and
I am proud to vote for this bill. I want to take a few brief minutes
simply to praise the families from the New York metropolitan area who
worked so long and hard on this bill.
Today we live in a cynical time. But these families showed that a
small group of people, if they have the will and the fortitude and the
strength and the courage, can move mountains, even here in Washington.
Without the families, we would not have had a 9/11 Commission. Without
the families, we would not have had a 9/11 bill. Without the families,
we would not have had each House pass its own bills. And without the
families, we would not have had the agreement we have come to now.
They are an amazing group. When you look into their eyes, as they
carry their pictures of their lost husbands and wives and children and
parents, you see the best of America and the best of New York. They are
a beacon, a model of strength, of courage, of indomitability, and they
can rest easier tonight, as we all can, that our world will be safer,
and perhaps the horrible thing that happened to our city and our
country on that tragic day of 9/11 will not be repeated, God willing,
again.
Madam President, I yield the floor and thank my colleague from
Michigan for his generosity.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Madam President, first, I want to state how indebted we
all are to the 9/11 Commission and to the families for their work in
putting us on the road to reform. That road will reach a culmination
today. It is appropriate that we spent the time we did to try to put
together a bill which is comprehensive and the most dramatic reform in
the intelligence community that we have had in many decades.
We in the Congress started out on that road with the goal of creating
a strong Director of National Intelligence, or DNI. One milepost was to
empower that Director with real budget power and adequate control over
personnel in the intelligence community. Another milepost was the
creation of a strong National counterterrorism Center, or NCTC, with
the authority to conduct strategic counterterrorism planning and to
assign roles and responsibilities for counterterrorism activities. The
managers deserve great credit as the conference agreement represents a
significant achievement in regard to those issues. Their work, the work
of Senators Collins and Lieberman, is a model of bipartisanship, and I
heartily commend them for it.
The conference agreement contains a number of provisions that I
proposed in the Senate-passed version. For example, it is critical that
there be a customer focus instead of a top-down focus in setting
intelligence collection and
[[Page S11956]]
tasking requirements. There is language in this conference report to
provide that customer focus.
The Senate bill contains language which I offered which precludes the
NCTC Director from assigning specific responsibilities directly to
components of the Department of Defense. That authority would have had
a negative impact on the military chain of command. That authority
should remain in the Department of Defense. The conference report
retains our Senate language.
The legislation also contains a provision which I authored with
Senator Coleman to stop money laundering and terrorist financing. The
9/11 Commission acknowledged that disrupting terrorist financing is one
key to winning the battle against terrorism. Our provision strengthens
bank oversight by imposing a 1-year cooling-off period on Federal bank
examiners before they can take a job with one of the financial
institutions which they oversaw. The need for this provision arose from
our investigation conducted by the Permanent Subcommittee on
Investigations which disclosed the weak anti-money laundering controls
at Riggs Bank which resulted in highly suspicious financial
transactions.
Among other problems, we were surprised to learn that the Federal
bank examiner who oversaw Riggs and allowed the bank to continue
operating for years with a deficient anti-money laundering program
retired from the Government and immediately took a job at the bank,
raising conflict of interest concerns. Our new provision will help
eliminate such conflicts.
Our provision also directs the Treasury Department to conduct a study
of current Federal anti-money laundering efforts and recommend
improvements to the process for setting priorities so that we direct
our efforts where they are most needed.
On the other side of the ledger, I want to talk about a number of
provisions that were included in the Senate-passed bill but which are,
unfortunately, absent from this conference report. We had a number of
provisions in our Senate bill, on which we worked so hard, that are
omitted from this bill. It seems to me the bill is weaker as a result.
One Senate-passed provision would have permitted the new DNI to
transfer military billets among activities within the intelligence
community but would not have permitted the new Director to transfer
individual members of the armed forces, thereby avoiding the potential
for the Director to interfere with the military chain of command. That
was changed and it mystifies me as to why our provision was dropped.
Another Senate provision would have provided that the administration
review certain Defense Intelligence Agency programs to determine
whether they should be managed by the new Director of National
Intelligence or by the Secretary of Defense rather than automatically
transferring them to the new DNI without review. The conference report
now gives that nonreviewable power to the new Director of Intelligence.
The programs, then, that the new Director will have that kind of
control over include the intelligence staffs of the Chairman of the
Joint Chiefs of Staff, the intelligence staffs of the commanders, and
the intelligence staffs of certain communications, and control over
certain communications systems which support sensitive military command
and control activities within the Department of Defense.
As I said, I am mystified why these two provisions, which were
included in the Senate-passed bill, were omitted from the conference
agreement. Did House Republicans object to those provisions even though
those provisions addressed concerns that a number of us have and, as a
matter of fact, that the Armed Services chairman in the House, Duncan
Hunter, had about protecting the military chain of command and about
the Department of Defense having a voice in budget matters which so
directly and keenly affect them?
There are a number of other troubling omissions from the conference
report. I happen to be one who agrees that we need a new strong
director of national intelligence and a new NCTC, a new national
counterterrorism center, with strong authority. But their creation will
not solve all or even the most critical of the problems in our
intelligence community. In fact, the creation of a stronger
intelligence director makes it even more important that we enact
reforms to ensure that intelligence assessments are not influenced by
the policy judgments of whatever administration is in power and that a
stronger DNI is not just a stronger political arm of any
administration.
I am deeply troubled that the conference report does not contain
critical provisions that were included in our Senate-passed bill on a
bipartisan basis that were intended to promote independent and
objective intelligence analysis.
The scope and the seriousness of the problem of manipulated
intelligence cannot be overstated. History has too many examples of
intelligence assessments being shaped to support an administration's
policy goals, with disastrous results. Forty years ago Secretary of
Defense McNamara invoked dubious classified communication intercepts to
support passage of the Gulf of Tonkin resolution which was then used by
President Johnson as the legislative foundation for expanding the war
against North Vietnam.
Director of Central Intelligence Bill Casey heavily manipulated
intelligence during the Iran Contra period. A bipartisan Iran Contra
report concluded that CIA Director Casey ``misrepresented or
selectively used available intelligence to support the policy that he
was promoting.''
The intelligence failures before the Iraq war were massive. The CIA's
failures were all in one direction, making the Iraqi threat clearer,
sharper, and more imminent, thereby promoting the administration's
decision to forcibly remove Saddam Hussein from power. Nuances,
qualifications, and caveats were dropped. A slam-dunk was the
assessment relative to the presence of weapons of mass destruction in
Iraq. The CIA was telling the administration and the American people
what it thought the administration wanted to hear.
In July of 2004, just a few months ago, our Intelligence Committee in
the Senate issued a 500-page unanimous report setting out a long list
of instances where the CIA or its leaders made statements about Iraq's
WMD and, to a lesser extent, Iraq's links to al-Qaida, which statements
were significantly more certain than the underlying intelligence
reporting and more certain than the CIA's earlier findings.
In fact, the first overall conclusion on WMD in the intelligence
committee's report was that ``most of the key judgments in the
Intelligence Community's October 2002 National Intelligence Estimate .
. . either overstated or were not supported by the underlying
intelligence reporting'' regarding Iraq's programs of weapons of mass
destruction.
These are life-and-death issues. We in Congress and the American
people need to know that we are getting objective assessments on North
Korea's nuclear program or Iran's nuclear intentions, for instance. We
cannot have any doubt in our mind the intelligence assessments that we
get represent the facts as they are objectively assessed and are not
shaped to serve policy goals of the White House--this White House or
any other White House.
We need a stronger national director of intelligence, but a stronger
DNI must not simply be a stronger yes man for whatever administration
happens to be in power at the time. When we wrote the Senate bill, we
included provisions to promote the objectivity and independence of
intelligence assessments and to provide a check on the new National
Intelligence Director from becoming a policy or political arm of the
White House. I am troubled that the conference report excludes some of
those checks and significantly weakens others.
Perhaps the most troubling area in which this conference report falls
short in that regard is the elimination of provisions which we had in
our bipartisan Senate bill which gave Congress the tools to do
effective oversight of the intelligence community. On this issue, the
9/11 Commission itself said that ``Of all of our recommendations,
strengthening congressional oversight may be among the most difficult
and important.'' That is why during the Senate's consideration of the
bill, we worked so hard to include provisions
[[Page S11957]]
aimed at achieving that goal. The absence of these provisions from this
conference report is deeply troubling.
The bipartisan bill that we passed here in the Senate contained
language that required the new Director of Intelligence, the National
Intelligence Council, the NCTC, and the CIA to provide intelligence not
shaped to serve policy goals. The conference report omits that
language.
The Senate-passed bill promoted independence of the NCTC by stating
that the Director could not be forced to ask permission to testify
before Congress or to seek prior approval of congressional testimony or
comments. The conference report leaves out that provision.
The Senate-passed bill contained a provision requiring the DNI to
provide Congress access to intelligence reports, assessments,
estimates, and other intelligence information and to do so within a
time certain.
The conference report omits that Senate-passed requirement giving us
a tool to do oversight. There is a long, painful history of efforts in
Congress, on a bipartisan basis, to obtain information from the
intelligence community which have never been answered or have been
slow-walked for weeks, months, and years at a time. It is unacceptable.
A more powerful DNI could make matters worse--or better. Congress is
coequal to the executive branch on intelligence issues and it baffles
me why any Member of Congress, over in the House where we had this
opposition, would oppose strengthening our ability to access
information and carry out our oversight responsibilities and to prod
the intelligence community to give us objective facts without spin.
I ask unanimous consent for 1 more minute.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. I was also troubled to find out that White House staff was
actually present in the room during staff negotiations of these issues.
It is my understanding that the White House objected to the
Congressional oversight provisions during those discussions. I know
these Senate provisions were strongly supported by both the Senator
from Maine and the Senator from Connecticut. I know how difficult those
discussions were and I appreciate that support very much. It was not a
lack of trying on their part which led to the exclusion of these
provisions. It was the opposition of the White House carried by House
Republicans.
In the final negotiations leading up to the November 20 draft
conference agreement, I even offered what I know the managers agreed
was a reasonable compromise that would have simply required that the
DNI report to Congress the status of outstanding requests for
intelligence information from committee chairmen and ranking members.
It is my understanding that the House Republicans and the White House
opposed even that language. The record should be clear on this matter
if we are to carry on the battle for stronger Congressional oversight,
which is so essential.
Other provisions directed at the production of independent, objective
intelligence were also included in the Senate-passed bill but were
dropped from this conference report. For example, the Senate-passed
bill created a statutory ombudsman to initiate inquiries into problems
of politicization, biased reporting, or lack of objective analysis.
This conference report weakens that provision by requiring merely that
the DNI identify an individual--and that could be any individual,
including the DNI him or herself--to fill that role.
The Senate-passed bill created a statutory inspector general in the
office of the DNI with strong investigative powers. This conference
report does not. Instead, it simply leaves it up to the DNI to create
an IG or not.
The Senate-passed bill created a statutory Office of Alternative
Analysis or ``red team.'' This conference report weakens that by simply
requiring the DNI to establish a process and assign an individual or
entity--again, any individual or entity--to conduct the function of red
teaming.
Let me summarize. While I am pleased that we were successful in
creating a strong DNI and NCTC, I am deeply disappointed that we did
not reach our destination in these other equally important areas.
Mr. President, on balance, I have concluded that I will vote for this
bill, but I am concerned about what has been left out of this
conference report. I think the managers share my concern about these
omissions and would ask that they work with me to address these issues
in the 109th Congress.
While we have the chairman of the committee on the floor, I thank her
and Senator Lieberman for the strong support they gave to the
provisions I just described. We should give Congress the tools to do
the oversight which is so essential if we are going to get independent,
objective analysis. I don't know why the House--apparently Republicans
who are carrying out the desires of the White House--took this
position. But it weakens Congress. I want to create a record here,
number one, acknowledging and thanking and commending our managers for
the work they did in conference, trying to preserve our bipartisan
provision, but asking, if I could, that they comment on what I just
said relative to where the objection came from to these provisions that
gave Congress the tools to do effective oversight over intelligence
assessments, which we had in our bipartisan Senate bill, and whether I
was correct in stating that.
Perhaps the Senator can answer on her own time as to whether the
objection came from the House Republicans and the White House.
Ms. COLLINS. Madam President, the Senator from Michigan worked so
hard to craft a series of provisions that were included in this bill.
Unfortunately, the conference agreement does not include many of the
provisions the Senator cared most about concerning access to
information by Congress in order to ensure effective congressional
oversight.
I think the loss of those provisions is unfortunate. On the Senate
side, they had bipartisan support. I think it reflects a historic
tension between Congress and the executive branch when it comes to
oversight and the inadequate sharing of information with Congress.
This has been a problem in previous administrations, and it has
continued to this day. So the Senator is correct that this objection
did not originate with any of the Senate conferees, either Republican
or Democrat, and it did reflect the views of the executive branch. I
want to make it clear that regardless of whether we have had a
Democratic President or a Republican President, that tension has
existed over decades.
Mr. LEVIN. I thank the chairman of the committee.
The PRESIDING OFFICER. The Senator from West Virginia is recognized.
Mr. ROCKEFELLER. Madam President, I will spend a minute on separate
intelligence-related matter before speaking about the bill currently
before the Senate. In the time I have been vice chairman of the
Intelligence Committee, I have worked hard to try to make sure that
funds are channeled to where they ought to be in intelligence. For this
reason, and with a great deal of reluctance, I am going to oppose the
fiscal year 2005 intelligence authorization conference report, which
the Senate will consider later today.
My decision to take this somewhat unprecedented action is based
solely on my strenuous objection--shared by many in our committee--to a
particular major funding acquisition program that I believe is totally
unjustified and very wasteful and dangerous to national security.
Because of the highly classified nature of the programs contained in
the national intelligence budget, I cannot talk about them on the
floor. But the Senate has voted for the past 2 years to terminate the
program of which I speak, only to be overruled in the appropriations
conference. The intelligence authorization conference report that I
expect to be before the Senate later today fully authorizes funding for
this unjustified and stunningly expensive acquisition. I simply cannot
overlook that.
My decision is shared by a number of my colleagues. Speaking for
myself, if we are asked to fund this particular program next year, I
will seriously consider and probably will ask the Senate to go into
closed session so the Senators can understand, fully debate, become
informed upon, and then vote on termination of this very wasteful
acquisition program.
Mr. WYDEN. Madam President, I rise today to express my concern
regarding
[[Page S11958]]
a provision included in the Intelligence authorization conference
report, which has been included in the intelligence reform legislation
before us. I commend the efforts of both Chairman Roberts and Vice
Chairman Rockefeller for their hard work during the negotiations over
this legislation. But I, like the vice chairman, do not support the
continued funding of a major acquisition program which is unnecessary,
ineffective, over budget, and too expensive. The easier path would be
to step aside and let this program continue without dissent. In this
case, however, I do not believe the continued funding of this program
is the best way to secure our Nation and the safety of our troops and
citizens.
The Senate Select Committee on Intelligence has raised concerns about
the need and costs of this program for the past 4 years and sought to
cancel this program in each of the past 2 years. This has not been a
political issue, a Democratic or Republican issue, nor should it be.
The members of the Senate committee have supported these efforts in a
nonpartisan way with unanimous votes each time.
The Senate Intelligence Committee has determined that this program
should not be funded based on firm policy judgments. Numerous
independent reviews have concluded that the program does not fulfill a
major intelligence gap or shortfall, and the original justification for
developing this technology has eroded in importance due to the changed
practices and capabilities of our adversaries. There are a number of
other programs in existence and in development whose capabilities can
match those envisioned for this program at far less cost and
technological risk. Like almost all other acquisition programs of its
size, initial budget estimates have drastically underestimated the true
costs of this acquisition and independent cost estimates have shown
that this program will exceed its proposed budgets by enormous amounts
of money. The Senate Intelligence Committee has also in the past
expressed its concern about how this program was to be awarded to the
prime contractor.
I understand why funding for this program was included in the
conference report. The administration requested it, the appropriators
have already funded it, and the House wanted to maintain the funding.
Nevertheless, I believe this issue must be highlighted because it is
not going away. I wish more of my colleagues knew of the details of
this program and understood why we are so convinced that it should be
canceled. I encourage you to request a briefing, to come to the
Intelligence Committee and let our staff explain why we believe we are
right about this program. If you do, I believe my colleagues would
agree with the members of the Senate Intelligence Committee and vote to
stop this program next year.
I am pleased that the so-called ``lone wolf'' terrorist provision,
which had passed the Senate twice since the attacks of 9/11, has been
included in the intelligence reform legislation.
As all my colleagues who have read the 9/11 Commission Report know,
the case of Zacarias Moussauoui--the ``twentieth hijacker''--showed
that current law was insufficient to address cases in which a foreign
person is suspected of terrorist involvement but had no known
connection to a terrorist organization. Current law under the Foreign
Intelligence Surveillance Act, or FISA, required that the FBI show that
any suspected terrorist must have links to a known foreign terrorist
group before the special FISA court would issue an intelligence warrant
to surveil or search the suspect. The Senate passed bill made this
needed change and included reporting requirements necessary to ensure
proper congressional oversight of how this provision was implemented.
The bipartisan effort to enact this provision was led by Senators Kyl
and Schumer who proved that we can fight terrorism more effectively
without giving up our privacy and cherished civil rights.
The 9/11 Commission identified the Moussaoui case as one instance
where, if things had gone right and with a lucky break here or there,
the disastrous attacks against the World Trade Center and the Pentagon
may have been delayed, disrupted, or even stopped. I acknowledge the
concerns some have expressed regarding the possibility this provision
may be misused or unnecessarily extends the reach of the FISA statute.
I believe that we can address these concerns with proper congressional
oversight of how this authority is used and review of this provision
prior to its 2005 sunset.
Mr. ROCKEFELLER. Madam President, I now turn to the business
currently pending before the Senate, the National Security Intelligence
Reform Act. I am pleased to be here at long last to speak in support of
the National Security Intelligence Reform Act. After 5 months of
endless work, led by Chairman Collins and Senator Lieberman, we are
poised to achieve what people thought was impossible. Some have
criticized this legislation for being too hastily conceived or rushed
to completion. To the contrary, this reform has been 50 years in the
making and the issues have been the subject of 46 different commission
reports. Most of them have suggested the same kinds of things we are
doing here.
Now, under the extraordinary leadership coming from Senator Susan
Collins and Senator Joe Lieberman, our Nation will soon have a Director
of National Intelligence who can begin to effectively coordinate our
intelligence agencies for the first time since the creation of the
National Security Act of 1947.
This critical reform was first suggested during the Nixon
administration and was the central recommendation not only of the 9/11
Commission, but also the joint inquiry--not so well known in this
body--that was conducted by both the House and Senate Intelligence
Committees, working together over a period of 2 years ago.
The intelligence reform bill also establishes a National
Counterterrorism Center where our analytical and operational efforts to
combat terrorism, here and abroad, can be brought together in a
coordinated way. This builds on the effort to centralize
Counterterrorism analysis begun with the creation of the Terrorist
Threat Integration Center.
But unlike TTIC, the new center will coordinate much more than just
intelligence analysis. The NCTC, National counterterrorism Center, will
be responsible for the strategic planning of all Counterterrorism
operations across the Government. It will provide a unity of effort
that we have been lacking for all of these years.
The final legislation is, I believe, a monumental achievement. I am
proud to support it. But I am also very honest, as was the previous
speaker, Senator Levin from Michigan, that it does not address all of
the recommendations of the 9/11 Commission. That is somewhat natural in
the process of a conference. But it is important to point out what we
don't yet have and what we need to continue working for.
I am disappointed that a number of important provisions in this bill
were dropped or weakened--in some cases necessarily--in order to get
this agreement. The agreement had to be reached. The intransigence of
the House conferees forced the Senate conferees to give up more than I
would have hoped. A couple of examples are the DNI's ability to
transfer funding and personnel. It is a basic part of what the
President is asking for, what the commission was asking for. It is
significantly weakened from the Senate bill, which passed 96 to 2.
The comptroller established to execute the National Intelligence
Program funding has been dropped, requiring intelligence spending to
still be channeled through the Pentagon comptroller.
The creation of the inspector general in the Office of the Director
of National Intelligence is discretionary, not statutorily mandated. It
is not going to be any good unless there is a person there doing their
job.
Many provisions in the Senate bill designed to ensure the objectivity
of intelligence and improve congressional oversight were modified or
were dropped, including the provisions of the bill authored by Senator
Carl Levin--many excellent suggestions that would have improved
congressional access to information and unvarnished intelligence
reporting.
Similarly, the Senate conferees were forced to modify other important
provisions on the civil liberties, privacy, and declassification boards
in order to overcome House objections.
Even with these shortcomings and others, the agreement reached is
still a
[[Page S11959]]
very good one, one that I can support and one on which I hope we can
build in the future in our intelligence authorization bills.
While several provisions from the Senate bill were weakened or
dropped, the final agreement still includes many very important
provisions--as I would say, the beginning of the turning of the
battleship--that will make meaningful improvements to the operation of
the intelligence community in all areas, not just counterterrorism.
We had a press conference yesterday, and I pointed out that in 1998,
George Tenet announced and declared that there was a war against al-
Qaida. Nobody listened. Nobody had to listen, I guess, and they did
not. Under this new setup, if the Director of National Intelligence so
declares and has the authority to follow through, that will be
absolutely enormous.
Some of the good provisions are: Language directing the DNI to create
an ombudsman to ensure the objectivity and independence of intelligence
analysis. That is so important because it means that people can come to
an ombudsman within an intelligence agency and air their grievances,
saying they are being pressured to do analysis a certain way, whatever.
But having an ombudsman is very important in big and sensitive
organizations.
The establishment of a intelligence community reserve corps is, I
think, a really good idea. It is in the bill. It helps relieve the
burden during periods of increased deployments, such as we are going
through right now.
And the establishment of an alternative analysis or ``red teaming''
capability--which is simply the act and the art of taking the
collection of intelligence and then the analysis that comes from that
collection and having people who are there to say: But did you ask this
question? What about that? In other words, they bring a contrarian
point of view, thus disciplining intelligence at the collection,
development, and production phase into a more worked product.
These reforms address problems uncovered in the Senate Intelligence
Committee inquiry into the prewar intelligence on Iraq, some of the
ones I just mentioned. When we put them to those two heroic Americans,
Governor Kean and Congressman Hamilton, they supported them strongly.
They are very critical to this reform effort.
The creation of a Senate-confirmed Director of National Intelligence
presents the President with the opportunity and the challenge to select
an individual with strong national security and management credentials
and who will be viewed by all as a nonpartisan leader of the
intelligence community. That goes without saying. That is absolutely
basic.
Now, more than ever, we need an individual who will not only
effectively manage the intelligence community for the first time ever,
but who can also be an objective adviser to the President, somebody
immune to the influence of political pressure.
In order to carry out the enormous responsibilities created in this
bill, the new Director cannot be seen as pursuing a political agenda of
any kind or forcing the intelligence community to support a particular
administration policy. That would apply, obviously, to both Democratic
and Republican Presidents and their administrations.
We need a Director who will speak truth to power, as we say, and
present what the intelligence community knows, does not know, or
believes in a timely and objective way.
I urge the President to nominate an individual to serve as the first
Director of National Intelligence who embodies these qualifications.
In conclusion, I again thank Senators Collins and Lieberman for
leading us through this extraordinary process, watching the process
seem to disintegrate, and then, through the absolute persistence of
both of them--even to the extent, I understand it, of BlackBerrying
each other from the office to the Kennedy Center--and I will not say
which Senator was at which place. But all of this helped bring the deal
together.
They were extraordinary in what they did. I have never seen anything
like it in the 20 years I have been here. I am really proud of both of
them. They never gave up their fight. They never took their eyes off
the prize. They overcame institutional resistance to change, and, in
the end, they overcame House efforts to undermine and emasculate the
bipartisan mandate for intelligence reform, but did so in a way which
drew an enormously positive vote from the House last night. They are
skillful, and we honor them.
Madam President, I yield the floor.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Madam President, I thank the Senator from West Virginia
for his extraordinarily generous comments. We would not be where we are
today without the support of the vice chairman of the Senate
Intelligence Committee. He contributed greatly to the bill. He was
there from the very first day, drawing on his impressive experience in
intelligence and national security matters, advising Senator Lieberman
and me on what should be in the bill. He was one of our most active and
dedicated conferees.
I am very grateful for his support and efforts and his contributions.
I realize the bill we produced is by no means a perfect bill, and I
know that in the years to come, he and his colleague, Senator Roberts,
will work to strengthen and improve our efforts. I thank him very much.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. Madam President, might I inquire of the distinguished
managers as to the recognition of speakers that meets the desire of the
two managers? The Senator from Virginia has indicated a desire to
speak, and I believe I am on the list. I will be happy to take whatever
position is available. I can follow my distinguished colleague from
West Virginia. I am here to listen and learn.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Madam President, it is my understanding that the Senator
from West Virginia is scheduled to speak next. The Senator from
Virginia is on the list for 30 minutes of time. The Senator from West
Virginia is on the list for 2 hours of time. I am uncertain whether the
Presiding Officer can be advised whether there is a further order
beyond what I have just indicated?
The PRESIDING OFFICER. That is the extent of the list of speakers.
Mr. WARNER. Madam President, the senior Senator from West Virginia
indicated to me that in all probability he might not use that time. To
facilitate matters, I can be on short notice to come after should he
not use 2 hours.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. BYRD. Madam President, am I recognized?
The PRESIDING OFFICER. If the Senator from Maine yields the floor.
Ms. COLLINS. Madam President, I will yield the floor. I just want to
indicate that the Senator from Alaska, Mr. Stevens, is also on the list
to speak for 5 minutes. I believe he wanted to follow the Senator from
West Virginia. And I see that the Senator from Louisiana is also here
and would like to speak for 5 minutes. So I ask that they also be put
in the queue.
The PRESIDING OFFICER. Without objection, it is so ordered. The
Senator from West Virginia.
Mr. BYRD. What does ``in the queue'' mean in this situation?
Madam President, maybe I can shed just a little bit of light here to
help. I do not intend to take the full 2 hours which have been allotted
to me under a previous request. I will be very happy to yield to the
very distinguished senior Senator from Virginia at this time if he so
wishes to precede me.
Mr. WARNER. Madam President, I thank my colleague. As we discussed, I
would like to have the benefit of the remarks which he is going to
deliver to the Senate prior to my speaking. If we just leave it, I will
be available whenever the managers wish to indicate I can speak, I will
do so.
Mr. BYRD. Madam President, as I say, I will not use the full 2 hours.
There will be ample time, I am sure, for some of the others whose names
have already been mentioned.
When I refer to the distinguished Senator from Virginia, may I take
this opportunity to thank him for the service he continues to give to
the country and to his constituents, the people of the great State of
Virginia. I have noted in the press some of the concerns he has
expressed with respect to this particular legislation, and I am sure
[[Page S11960]]
those concerns have led to improved legislation, certainly improved
chances for its passage today, and I want to thank him for that.
Mr. WARNER. Madam President, I thank my distinguished colleague.
History will have to reflect, once this is adopted into law, and I
intend to support it, upon certain provisions that I had some role in
preparing, working with the distinguished managers of the bill and my
counterpart in the House, the distinguished chairman of the House Armed
Services Committee, Duncan Hunter, who has been a very forceful and
committed individual to achieve the common goals Congressman Hunter and
I shared.
I might add to the distinguished Senator from West Virginia, there
were at least four or five others in the Chamber who consulted with me,
worked with me, and provided ideas, and I want to thank them, although
I shall not take the time at this time to mention their names.
I will be available whenever the managers wish to put in a call to
me.
On another subject, I say to my distinguished colleague from West
Virginia, the Christmas tree that is now gracing the west lawn of the
Capitol grew on the border between Highland County and West Virginia,
and my understanding is that some of the roots penetrated into West
Virginia. So while the trunk may have been in our State, it really drew
on the wisdom of West Virginia and Virginia, and I think my colleague
and I are very appreciative that this tree was selected.
The PRESIDING OFFICER (Mr. Allard). The Senator from West Virginia.
Mr. BYRD. Mr. President, I thank the managers of this bill, Senator
Collins and Senator Lieberman, for the courtesies which they never
failed to extend. I have the utmost respect for the dedication and for
the knowledge which they have brought to this particular subject
matter. They have spent many weeks, days, and hours in the
consideration of this matter in the committee, on the Senate floor, in
the conference, and their kindnesses, their studies, their knowledge,
their ability to translate into action the concerns that so many of us
have held with respect to intelligence is something worthy of
admiration.
I also thank Senator Roberts and my colleague in the Senate from West
Virginia, Senator Rockefeller. They, too, have worked hard and have
contributed much and will continue to do so. I recognize that these
Senators have worked tirelessly since last summer in trying to craft
the best legislation possible. So I have to compliment these Senators.
I have to salute them. I have to respect them for their tenacity.
I regret that I cannot join them in supporting the conference report.
I will vote against it. Mine may be the only vote against it, for that
matter. But I feel that I must speak out and must vote my own
sentiments as I attempt to represent the people of West Virginia
according to my own lights.
I know the families of the individuals who perished in the September
11 attacks are following the proceedings of the Senate closely today,
and my sympathies go out to them, as my sympathies did immediately
after the terrible tragedy that befell them and befell the Nation. As
chairman of the Appropriations Committee at that time, I responded in a
very positive way. We passed a $40 billion appropriations bill within 3
days. That is somewhat of a record, I must say. Again, I say, we
enacted--when I say ``we,'' I mean the entire Congress--a $40 billion
appropriations bill within 3 days of that tragic happening.
These families who have grieved over the loss of their loved ones for
more than 3 years, and who will continue to grieve over these losses
throughout their lifetimes, have been critical to the efforts to create
the 9/11 Commission and allow their thorough investigation to be
completed. The greatest tribute to their efforts of these past years
would be for the Congress to get these intelligence reforms right.
When the elected representatives of the people allow themselves to be
coerced into a process that encourages the abdication of our
responsibility to understand and fully debate and thoroughly review
legislation, the people are robbed of their voice and their government.
Senators take an oath to defend the Constitution of the United States.
I have taken that oath many times over these 58 years that I have
served in public office. Common sense suggests that that means reading
and studying the legislation before the Congress. We are dutybound to
explore the opinions on all sides of an issue and, especially an issue
that is so serious as is this one, we are dutybound to work toward a
process that does not exclude opponents or silence the opposition.
In its heyday, the Senate, this body, the U.S. Senate, was known as
the greatest deliberative body in the world. It should still be that. I
wonder if it is. What we have seen in recent times, however, is a
hollow shell, a hollow shell of that noble tradition. Time after time
after time, the Senate forgoes its responsibility to deliberate and to
carefully review legislation, and even defers to others to craft
legislation for it.
Legislation is passed by the Senate and then, all too often, hastily
rewritten in a conference report behind closed doors marked, as it
were, ``no minority view admitted.'' All too often during the 108th
Congress, the party leadership has held bills until just before a
recess and then employed disingenuous rhetoric about, ``Oh, last
opportunities, these are the last opportunities to get something
done.''
Senators, preoccupied with holiday schedules and holiday travel
plans, for example, roll over timidly and accept whatever is placed in
front of them. They do it. They do it time and time again. And they
importune those Senators who might be hopeful of speaking out and
spending some time and debating with their colleagues. These Senators
are pressured by their colleagues and by the leadership and by the
White House to roll over and let the vote come and let us go home. I
anguish about the eroding character of the Senate.
I have now served in this Senate 46 years. I have seen the Senate
when it took the time to speak and to debate and to amend, to ask
questions. I have seen those times, and those were the great days for
the Senate. It fulfilled its duties to the American people and to the
Framers, to the forefathers, to those who have preceded us. I greatly
regret that those days seem to be gone. They seem to be gone.
I anguish, as I say, about the eroding character of this body. I
anguish about the message it sends to the American people when this
body allows itself to be stampeded, as it so often does allow itself to
be stampeded, into passing legislation without thorough examination.
Oh, we congratulate ourselves on a job well done and then vote
overwhelmingly in support of the legislation, and yet we cannot even be
bothered to ask questions about the changes made in conference. Like
pigmies on the battlefield of history, we cower like whipped dogs in
the face of political pressure when it comes to issues such as
intelligence reform.
I felt the pressure to forego any speech, forego any request for a
rollcall vote but just to let it pass by voice vote. Can you imagine
that? Let this piece of legislation pass by voice vote; oh, Senators
have travel plans, and it would be well if we could just have a voice
vote.
We have too much of that around here. I for one have a rebellious
feeling against our relaxing in our duties to the Senate and to the
people by giving in to such pressure.
I do not claim to know as much about this legislation as the managers
of the bill. But I do know about process. And it galls me that the
Senate has allowed itself to be jammed against a time deadline time and
time and time again--and in this instance, jammed against a time
deadline in considering this conference report.
This is the most far-reaching reorganization of our intelligence
agencies since 1947. These changes will remain for decades, and these
changes will impact upon the security of our Nation at countless
levels. Such matters ought to be held to a higher standard of
consideration by the Congress than is the case here.
This conference report has been reworked and redrafted over the
course of 2 months in a closed-door conference, and the Senate has only
received a printed copy of the conference agreement less than 24 hours
ago. I
[[Page S11961]]
don't know what is in the conference report. I would say that any other
Senator who stands before this Senate and tells the American people he
or she knows what is in the conference report is like the emperor who
had no clothes.
As late as yesterday, the conferees were still making changes. It is
outrageous, outrageous, to expect Senators to read and understand a
615-page measure in less than 24 hours. Is that the way we ought to
legislate? Here we have young pages who come here from all States of
the Union. They expect to learn how legislation is made, how the Senate
works, how we Senators perform in the bright lights of publicity, how
we do the people's business. I know they read the casebooks and the
history books and the textbooks and all these things about how
legislation is made. They come here with bright eyes, open eyes, open
ears, great hope, great aspirations, and they work for what I say has
been rightly called the greatest deliberative body in the world.
Is this deliberation, a 600-page report? If I stood before the
American people and said I can vouch for everything that is in this, I
know what is in it, the people would know I am misleading them,
wouldn't they? But this is so often the way it is. We allow ourselves
to be pressured by the leadership. The leadership calls up measures
here in the Senate. Any Senator can make a motion to proceed. But
Senators don't do that. They defer to the majority leader. I have been
the majority leader. I have been the minority leader. Senators defer to
the majority leader, whether it is a Democrat or a Republican, to call
up measures. I say that we often just do not have the debates the
Senate should give to important measures.
This conference report--as I say, it is outrageous for Senators to
understand the 600-page bill in less than 24 hours.
I want to call attention to the Washington Post of today and its lead
editorial titled ``Reform In Haste.'' I shall just take the time to
read the first two paragraphs of today's Washington Post lead editorial
titled ``Reform In Haste.'' I quote therefrom:
The rhetoric emanating from the Capitol Hill in the past
few days may have created the impression that, after a hard-
fought battle over key provisions, Congress worked its way to
a sensible plan for reorganizing the U.S. intelligence
community. Sadly, that is far from the truth. The 600-page
omnibus measure on its way to approval yesterday had not been
read or carefully considered by the vast majority of members,
including some of those most involved in its construction.
What passed for a debate in the past couple of weeks was
actually little more than a turf battle by Pentagon satraps
and the Congressmen who share their interests on issues that
are marginal to the broad reorganization outlined in the
legislation.
That shake-up, driven by an odd combination of election-
year politics and the determination of the September 11
commission to leave a mark, may improve the quality of
intelligence information supplied to the President and other
key policymakers; we have our doubts. Like the passage of the
USA Patriot Act or the creation of the Department of Homeland
Security, it has been mandated hastily and with scant
consideration of its long-term consequences.
That is what I am talking about. The Washington Post hit it right on
the head.
I tell you that I am not going to vote for legislation of this
importance under such circumstances. I have done it before. I have
voted against other legislation from time to time which I felt was
being rammed through the Senate without proper consideration, without
ample time for debate. And this measure, of course, cannot be amended.
A conference report under Senate rules cannot be amended. So we have to
take it or leave it, vote it up or down. We are buying a pig in a poke
here, I can assure you.
This conference report is very different from the legislation that
passed the House of Representatives and the Senate 2 months ago. I have
heard Senators here on the floor today talk about how this differs from
the legislation that we passed in the Senate a few weeks ago.
For example, a number of provisions related to the U.S. PATRIOT Act
and the law enforcement powers have been inserted into this bill, which
again has never been considered on the Senate floor.
This legislation has encountered virulent opposition since the time
of its conception. And while it may enjoy the support of the
overwhelming majority of Members here today, nobody--I say nobody--can
say with any confidence or certainty as to how this new layer of
bureaucracy will affect our intelligence agencies or the security of
our country. We don't know if it will enable the intelligence agencies
or enable the Government in all its ramifications to better guard
against a terrorist attack or whether it will cause a host of
unforeseen problems. We are failing in yet another misguided rush to
judgment to take the time and effort to find out. We are failing to
take the time. It is a rush to judgment. There has been a mad scramble
to cobble the pieces together and pass a bill. Oh, I have to pass a
bill.
The Senate barely understands how the experts line up on this bill.
The 9/11 Commission is for it. That much we know. But former CIA
Director George Tenet said last week he opposes this bill. That is
sobering criticism from someone who, having left Government months ago,
no longer has any turf to protect.
A distinguished group of national security experts wrote in September
that they oppose any intelligence reform this year. That group included
former Senate Intelligence Committee Chairman David Boren; former
Senator Bill Bradley; former Secretary of Defense Frank Carlucci;
former Secretary of Defense Bill Cohen; former CIA Director Robert
Gates; former Deputy Secretary of Defense John Hamre; former Senator
Gary Hart; former Secretary of State Henry Kissinger; former Senate
Armed Services Committee Chairman Sam Nunn; former Senator Warren
Rudman; former Secretary of State George Shultz.
We do not know how these experts regard this conference report. We do
not know how they regard the bill today, but even months ago they urged
we take more time.
Henry Kissinger appeared before the Senate Appropriations Committee
and urged we take more time. He suggested we take more time, even as
much as perhaps 8 months--nothing this year.
I read from an excerpt of a statement by former Secretary of State
Henry Kissinger, as of Tuesday, September 21, this year:
What we are urging is a time for reflection and a time for
consideration with maybe a short deadline of 6 to 8 months,
but to take it out of the immediate pressures of a period
that is bound to affect the thinking.
There we were, about to enter into the heat of an election campaign
and Henry Kissinger was saying, whoa, whoa, wait a minute. Let's slow
down. Let's take adequate time. Don't be pressured by the election.
Let's don't do these things in such a hurry.
We do not know what these experts regard how they would perceive this
conference report today. I don't know how Henry Kissinger would judge
it. He doesn't know what is in the conference report, just as I don't
know what is in it. Why should Senators forego the valuable insight of
almost every public figure who may actually be able to assess what is
in the new version of intelligence reform?
So I say again, let us not say we believe we understand what is
included in this conference report. I don't understand it. We have not
had the time to understand it. We do not have sufficient resources by
way of assistance from capable staff people. They have not had the
time. It is, in effect, a new bill and in some ways very different from
anything the Senate has considered to date.
Common sense suggests the Congress ought to hold hearings on the
contents of this new measure so we may be informed by experts about its
benefits and defects, so that we may ask questions, so that those
questions and answers may be compiled into printed hearings so we all
may have the benefit of the knowledge, the benefit of time to study and
to reflect.
There is no reason the Senate cannot proceed in this prudent matter
early next year. Instead of viewing this conference report as the final
stage of the process, we ought to consider it as the starting point for
debate next year. It is only a few days away, next year. We ought to
invite witnesses back to testify and allow the process to begin anew
outside the election cycle and built on the foundations of knowledge
acquired this year.
Instead, we are allowing ourselves to be lulled into the fallacious
belief that we must accept this bill, we must accept this conference
report, we cannot
[[Page S11962]]
amend it, we must accept it from page 1 through page 615. We have to
accept it lock, stock, and barrel.
We do not know what is in it. There may be several pigs in this poke,
but we buy them all; we embrace the whole thing virtually sight unseen.
We allow ourselves to be lulled into the fallacious belief that we must
accept this bill or risk it not passing next year, with some even
suggesting a terrorist attack could result from it.
Now, a terrorist attack may happen, but it won't happen because this
conference report would have been put over until next year. If it is
going to happen, it will happen and nothing in this conference report
would stop it if it happened next week or the next month or the next
several weeks or months. That is nonsense. Don't believe it.
I have heard even some comments from people who ought to know better
on the TV saying, What I am concerned about, if we don't pass this
report, I just hope we don't have another terrorist attack--as though
passage of this conference report will make any difference to any
terrorist who may be planning an attack next week or 10 days or the
next month or the next 2 or 3 months. No legislation alone can
forestall a terrorist attack on our country.
The momentum is strong now to reform our intelligence agency. I
submit the greater risk is not that the momentum will dissipate next
year if this bill does not pass today or this week, but that the
passage of this bill will remove any incentive to focus on the broader
intelligence failures that have occurred outside the war on terror.
This legislation is appropriately focused on the failings of
September 11 but oblivious to the many other glaring deficiencies in
our intelligence community. Our country went to war in Iraq, a war we
should not have engaged in, a war in Iraq on the shoulders of false
claims about weapons of mass destruction. But this bill dances around
that issue on tippy toes. It is as though Congress is too afraid to
mention the fact that faulty intelligence claims deceived the public
out there, deceived the man and the woman on the street, deceived the
people of this country into believing there was an imminent threat from
Saddam Hussein.
Why is Congress avoiding that critical issue? Is it because some do
not wish to expose the role of the White House in feeding bad
intelligence to the American people? The Founding Fathers intended
Congress to be a check on the power of the Chief Executive, but
increasingly Congress appears content merely to be a cheerleader for
the President depending upon which party might be in control at a given
moment.
The intelligence bill fails to address the unfolding prison abuse
scandals in Iraq, Afghanistan, and Guantanamo Bay.
The Armed Services Committee has held six hearings on the abuse of
prisoners in U.S. military jails. There is mounting evidence that the
CIA had some hand in the mistreatment of detainees. The Red Cross has
reported on the illegal practices of U.S. intelligence agencies holding
``ghost detainees'' in secret prisons. Why is this intelligence bill
silent on such outrageous policies? How can Congress claim to fix what
is wrong with our intelligence agencies if this major piece of
legislation does not even address such colossal intelligence failures?
The only way to reduce the risk of such failures is to ensure the
accountability of this new Intelligence Director to the people's
representatives in the Congress. It is the Congress that must make the
decision to declare war, and it is the Congress that is responsible for
the oversight of this new intelligence program to help guard against
future intelligence failures.
It is paramount that the Congress do everything possible to ensure
itself access to timely, objective intelligence. Yet that is not what
we see in this legislation.
This conference report eliminates provisions to ensure that the
Congress receives timely access to intelligence. It also allows the
White House's Office of Management and Budget to screen testimony
before the Intelligence Director presents it to the Congress.
Whistleblower protections for intelligence officials who report to the
Congress have also been stricken from the Senate-passed bill.
The conference agreement creates senior intelligence positions but
exempts many of them from confirmation by the Senate. It eliminates the
privacy and civil rights officers included in the Senate-passed bill.
It strips 18 pages of legislative text that would have created an
inspector general and ombudsman to oversee the Intelligence Director's
office. That language has been replaced with one paragraph, authorizing
the Intelligence Director, at his discretion, to create or not to
create an inspector general, and provides the Director with the power
to decide which, if any, investigative powers to grant the inspector
general.
That means the new Intelligence Director could exempt his office from
inspector general audits and investigations, and that the Congress
would not receive reports from an objective internal auditor. The
Congress is limiting its own access to vital information within this
new intelligence office, and it will have thereby compromised an
essential mechanism for identifying potential abuses within the new
intelligence program.
Given the dark history of abuses of civil liberties and privacy
rights by our intelligence community, I had hoped that the Congress
would exercise more caution, but it has not done so in this
legislation.
The 9/11 Commission recognized that its recommendations call for the
Government to increase its presence in people's lives, and so it wisely
endorsed the creation of an independent Civil Liberties Board to defend
our privacy rights and liberties. The Senate-passed bill embraced this
recommendation and included additional protections to help ensure that
executive agencies could not exert undue influence on the Board. This
conference agreement, however, scuttles those protections by burying
the Board deep inside the Office of the President, subjecting Board
members to White House pressure. Why?
The conferees included language making changes to the 1978 Foreign
Intelligence Surveillance Act, the law that blurs the rules on
electronic surveillance and physical searches by the U.S. Government.
This conference report, though, states that the Intelligence Director
shall have authority to direct or undertake electronic surveillance and
physical search operations pursuant to FISA if authorized by statute or
executive order. This is dangerous ground, isn't it? This is dangerous
ground to walk when the President, through executive order, and without
the authorization of the Congress, can direct this new Intelligence
Director to undertake electronic surveillance and physical search
operations.
Yet another provision would make terrorist crimes subject to a
rebuttable presumption of pretrial detention, which means that
prosecutors will not be required to show a judge that the defendant is
a flight risk. Instead, the defendant will be presumed to be a flight
risk. Are Senators sure we are not trampling on the civil liberties of
the American people with the hasty passage of this conference report?
Again, few, if any, Senate hearings have been held on these
provisions by the full Senate Judiciary Committee. The inclusion of
these provisions in title VI, with so little examination of their real
meaning, reminds one of how the PATRIOT Act itself was enacted in haste
without sufficient review, and with no real understanding of its true
consequences.
These are unsettling provisions, and the Senate ought to insist on
its rights to consider them more carefully. The Senate has not had
enough time to understand this legislation or its implications. This
new Intelligence Director has been granted significant authorities, and
the Congress has not done enough to ensure adequate checks on the
actions of the Intelligence Director.
With regard to homeland security, the bill authorizes a significant
increase in the number of Border Patrol agents, immigration
investigators, and a significant increase in the number of beds for
immigration detention. The bill also authorizes increased funding for
air cargo security and for screening airline passengers for explosives.
All of these are worthy goals, but the provisions are just empty
promises.
Last September, when I offered an amendment to the Homeland Security
[[Page S11963]]
appropriations bill to fund these precise activities, the White House
opposed the amendment and my Republican colleagues lined up, virtually
to the man or woman, and voted against it. And today, Members will line
up and vote for more empty promises.
President Bush had the opportunity to support Congressman
Sensenbrenner and insist on tougher immigration reforms in this bill,
but the President welched. Senators talk about reforms needed to
protect against terrorism, and the fact is that this bill is a
hodgepodge of empty border security promises that the administration
has no intention of funding--and I am certainly concerned about that;
no intention of funding--and that will only encourage the kind of
illegal immigration that leaves our country wide open to terrorists.
Mr. INHOFE. Will the Senator yield?
Mr. BYRD. Yes, I will yield.
Mr. INHOFE. I ask the distinguished senior Senator from West Virginia
if he would yield me a little bit of his time, and then I will yield
right back, because something the Senator said I think is worth
elaborating on a bit.
Mr. BYRD. Very well. Will the distinguished Senator inform me as to
how much time?
Mr. INHOFE. Oh, 10 minutes, but I probably will not use it all.
Mr. BYRD. Does the Senator wish me to yield at this point?
Mr. INHOFE. I would like that, yes, or I will wait until the Senator
finishes his current thought. I want to reference former Senator Boren
and some things that you mentioned.
Mr. BYRD. Yes.
Mr. INHOFE. I will wait.
Mr. BYRD. I will certainly yield to my friend very shortly. Let me
say, however, continuing my thought, it may well be that the only
problem that this bill will actually fix is one of politics.
Passing this bill in the waning hours of the 108th Congress means
that for all intents and purposes intelligence reform will be removed
from the agenda of the next Congress. By passing this bill today, the
Senate will be giving political cover to those who wish to dismiss
calls for more thorough reform of intelligence agencies to fix problems
that are not addressed in the legislation, including the Iraq WMD,
weapons of mass destruction, fiasco and the abuse of prisoners in
secret detention facilities.
Intelligence reform should be done right the first time. But the
actual implementation of this bill will be shrouded in secrecy and
hidden from public scrutiny. Under this conference report, the total
amount of intelligence spending will remain classified so that the
American people may never know if the President is shortchanging the
reform effort that this bill requires. Senators ought not be so willing
to rush this bill through knowing that it may serve as political cover
for an administration that has a sorry history of promising big reform
efforts that it never funds.
Mr. President, I am happy to yield now, if I may retain my right to
the floor, to my friend from Oklahoma.
Mr. INHOFE. I thank the Senator for yielding.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. INHOFE. Mr. President, the Senator had referred to a report and
named several very distinguished people, including the former Senator
from Oklahoma, my predecessor, current president of Oklahoma
University, David Boren.
Mr. BYRD. Yes.
Mr. INHOFE. I would share with the Senator from West Virginia that
when I won the election to replace him, he and I had a talk. And he
said: I have something very significant to talk to you about.
If the Senator from West Virginia will recall, Senator Boren was the
chairman of the Senate Intelligence Committee at that time.
Mr. BYRD. Yes.
Mr. INHOFE. He said: You have to do something. I have tried and I
haven't really succeeded because no one is aware of the shambles that
the system is in in terms of the turf battles in intelligence
collection and all of that.
I told him at that time I would do everything I could even though I
was going to be on the Intelligence Committee but not on some of the
committees dealing directly with this. So he talked about the crisis it
was in.
I will read to you from the CSIS report that was written by the very
people the Senator from West Virginia listed. It reads:
Racing to implement reforms on an election timetable is
precisely the wrong thing to do.
I think that it does have to be deliberative, and we do have to have
more time.
Additionally, there is no one I hold in higher regard in terms of his
background and capability than Porter Goss. I served with him in the
other body. Here is a man who has the background, yet we haven't heard
anything from him on this. It seems to me if we all agree, as we did
when his confirmation took place, that he is the expert that he is, he
should have some participation. At least I want to know what his
thinking is about this.
Just for a moment, I saw several things in the House bill I liked. I
have a very short list of things that were taken out of the House bill
in conference. This disturbs me. For example, they took out any
requirement for proof of lawful presence in the United States. The
requirement applies to immigration law provisions passed in 1996, which
I supported, as did the Senator from West Virginia, that were signed
into law by President Clinton.
Secondly, the temporary license requirements, including a
requirement--again this was in the House bill and was taken out--that
the license term should expire on the same date as a visa or other
temporary lawful presence authorizing document. This means if you are
here on a document--it might be a visa--and it expires, your driver's
license should expire at the same time. That was a part of the House
bill that was taken out.
The required documentation for identity is the hard document. Many
States have inadequate and outdated proof of identity. This provision
ensures that the States would have hard documentation on this.
The restriction of the State's ability to accept foreign documents
for a driver's license, we have discussed this. I, for one, do not hold
in as high a regard foreign documents as I do our own documents that
are generated here.
The antitrafficking provision was taken out. The House bill adds to
the existing criminal code addressing identity theft and fraud language
to address the growing and lucrative crime of selling the technology
and information that facilitates counterfeiting of identity documents.
This was taken out. I have not had the opportunity to find out the
reason for this. Notwithstanding that, I know there are many good
provisions we should be passing.
One of them I draw to the attention of the Senator and the Senate is
the electronic confirmation by the various State Departments of Motor
Vehicles to validate other States' driver's licenses.
Had Virginia referenced the Florida records of Mohammed Atta who was
stopped here, it is likely they would have discovered that his license
was not current. Who knows whether that would have prevented 9/11 from
happening. However, we do know this: He piloted one of the airplanes
that went into the towers, and he was also one of the masterminds at
that time. Mohammed Atta was actually stopped in Virginia. The House
put a provision in to make it very difficult for that to take place.
This morning on a news show on Fox News, Congressman Sensenbrenner
was on, and E. D. Hill asked him some questions:
. . . Explain to me this whole driver's license thing.
Because I know that out in California they're giving out
licenses and then there are these matricular I.D.s--all sorts
of stuff like this.
This bill--the last part that I read--said that they wanted
national guidelines for federal--for identification, for
driver's licenses and that type of identification form.
What does this mean?
Congressman Sensenbrenner responded:
Well, it would be proof of lawful presence in the United
States, which means either a birth certificate, a U.S.
passport, a foreign passport with a green card. Or if someone
is here on a temporary visa with an expiration date, that
passport and changing the law to have the driver's license
expire as of the date the visa expires.
He goes on and talks about Mohammed Atta and when he was stopped and
what happened. That part is very disturbing to me.
[[Page S11964]]
Finally, there has been a lot of talk about the 16-mile gap that was
in there that has now been returned back to about a 2\1/2\ mile gap
between San Diego and Tijuana. It is a gap because there is no fence
there. People come and go as they will. That is where a lot of the
illegals are coming through, a lot of people who could be terrorists.
We don't know. Nonetheless, they are going through.
They had closed that gap in the House bill, and that language was
taken out. That might be something that has been said on this floor. I
haven't heard anyone justify why that was done, but it seems like it
was done.
I know that Congressman Hunter placed a provision to close the gap,
and apparently there were some endangered species lawsuits that came in
and have caused this conference report to leave that gap open.
I suggest that if we are leaving it open, I say to the Senator from
West Virginia, we are leaving it open to protect a maritime succulent
shrub which is something that is required or could create a harassment
to some endangered species. So I checked to see what that was. I found
out that the two major species that might be endangered species, that
might be harassed--not killed, harassed--were the vireos or the
flycatchers.
I am holding a picture of a flycatcher. Let me get the full name.
I don't seem to have that here.
Anyway, this is one of the species that might be harassed--not
killed, but harassed. The other is this critter, a vireo. I checked
with the U.S. Geological Survey, and I found out there are an estimated
2,000 vireos in existence today and 1,000 flycatchers in existence
today, and the most this would prevent, not from being killed but from
being harassed, would be 2 of these and 3 of these.
Now, I ask you to prioritize this. Is it better to harass five of
these endangered species and at the same time leave this 3.5-mile gap
open for perhaps terrorists or someone else to come through? I have
been very concerned about these things.
I do understand that the House has said they are going to fix all
this in January--I cannot remember, I think in the first part of
January sometime--but every time that happens, when they say they are
going to fix something that we rush through to pass, it doesn't happen.
I saw my friend, the Senator from Florida, walking through here a
minute ago. He reminded me that I was the only Senator in 2000 to vote
against the Everglades Restoration Act. I did so because we did not
have a core plan, a feasibility study, and we didn't know about the
cost. We were given assurances that if we would pass that bill on that
particular day, we would have a feasibility study and the cost would
not exceed where they are today. Now we find out that the costs have
dramatically exceeded the estimates in 2000.
I only say this not to criticize anyone, but only to say that,
without exception, every time we have rushed to do something, we have
used the excuse that we are going to fix it 3 weeks from now or
tomorrow or in the beginning of the next session, but it doesn't seem
to take place. So like a lot of reforms that are in this, I would
rather go back and have the opportunity to make sure we get the reforms
I outlined that were taken out or put in by the House. The reason is
that once you pass a bill, you lose your leverage to get those things
that were controversial back in. I don't have any doubt that the
Speaker--he says he will bring this up, and I don't doubt that. I have
serious doubts that if they pass something in the House and send it
here to correct those five areas I outlined, it would be done over in
this body.
I appreciate very much the Senator yielding me a few minutes of his
time to share those thoughts with him.
Mr. BYRD. Mr. President, I thank the Senator who has expressed,
rightly, his concern. The Senator has cited excellent examples of why
this bill is being rushed and why it should not be rushed.
I am for intelligence reform. There are many things in this package,
I am sure, that are worthwhile. But we cannot fully protect ourselves
against terrorists unless we address the gaps in our borders and stem
the rise of illegal immigration. There is a great deal of friction in
the House of Representatives with respect to this conference report
because of the failure to address many of the problems Congressman
Sensenbrenner spoke about. I hope we will still have an opportunity to
do that. But this is just one area in the conference report that ought
to have had more time, but it did not get the time, as the subject
matter in its entirety should have had more time.
Next year, the President will ask the Congress to pass a sweeping
amnesty. It's clear that illegal aliens will continue to pour into this
country until the Congress takes action to protect its borders.
The 9/11 Commission's endorsement of this legislation will mean
nothing if these so-called reforms lead to future intelligence
failures.
What the American people will remember, however, is that the
Congress--the Senate and the House--abdicated its role to fully protect
their security interests. The American people will remember that the
Congress empowered an unelected bureaucrat while doing little else to
protect against future intelligence failures.
This process has been hurried and rushed from the beginning. It has
been tainted ever since the decision was made to tie its consideration
to a political schedule.
When the 9/11 Commission needed more time to conduct its
investigation into the September 11 attacks, the Congress acted
magnanimously in granting a 2-month extension. Senators said at the
time:
It would be counterproductive to deny the commission the
extra 2 months it now says it needs to complete its
investigations. . . .
Mr. President, the Founding Fathers would be ashamed of the notion
that time is a luxury reserved for the unelected members of independent
commissions. What about the Senate? What about the elected
representatives of the people who serve in this body?
The Framers of the Constitution conceived a Senate that would resist
the forces that urge us to bend with each change in the political
breeze. To the contrary, the Constitution binds Senators to serve the
greater causes of the Republic and reserves the power of each Member to
demand more time for debate, more time for thoughtful consideration. So
shame on us for not invoking that wisdom in claiming the additional
time we need to better assess this legislation and to better protect
the security of this Nation and to better enhance the well-being of the
American people, who stand in need of closer examination and scrutiny
of legislation that will provide for their security and the security of
their children and the security of the institutions that need that
protection and that security.
Mr. President, I yield the floor.
Fostering the Flow of Information
Ms. COLLINS. Mr. President, the 9/11 Commission found that the
biggest impediment to ``connecting the dots'' was resistance to
information sharing. As the Commission stated in its report: ``Agencies
uphold a `need to know' culture of information protection rather than
promoting a `need to share' culture of integration.'' I ask if the
ranking member on the Governmental Affairs Committee, Senator
Lieberman, would explain how this legislation addresses this finding of
the Commission.
Mr. LIEBERMAN. In drafting this legislation, we fully considered the
finding of the 9/11 Commission that Senator Collins refers to, and we
designed the bill to foster a shift away from a ``need-to-know''
culture of excessive secretiveness, toward a more integrated and open
culture of ``need to share.'' The bill assigns key responsibilities to
the DNI and to the President to achieve this shift in culture.
The bill makes the DNI responsible for establishing guidelines for
the intelligence community to ensure maximum availability of, and
access to, intelligence information within the community, and to
maximize the dissemination of intelligence consistent with protection
of sources and methods. The legislation recognizes that there will
sometimes be a tension between the need to share intelligence
information and the need to protect intelligence sources and methods,
and the DNI will be responsible for establishing policies and
procedures to resolve any conflicts in this area. The DNI's guidelines
are to foster a shift from a culture of undue secrecy by, among other
things, allowing for dissemination of intelligence products at the
lowest possible
[[Page S11965]]
level of classification consistent with security needs--and in
unclassified form to the extent possible.
The President will be responsible for also establishing an
information sharing environment for communicating terrorism information
beyond the intelligence community. This program will facilitate the
sharing of information among all appropriate Federal, State, local, and
tribal entities and the private sector. To help shift from a culture of
undue information protection that can impair our security efforts, the
legislation instructs the President, among other things, to require a
reduction in overclassification of information. The President will also
issue guidelines to ensure that information is provided in its most
shareable form, such as by using ``tearlines'' to separate data from
the sources and methods by which the data is obtained.
Ms. COLLINS. I thank the Senator.
Mr. President, some concerns have been expressed to us about whether
the authorities under this bill might be used, or abused, to unduly
limit the flow of information to the Congress, State and local
governments, and the public. Nothing could be farther from our intent
than to chill the appropriate and desirable dissemination of
information. This bill does not grant any new authority for the DNI or
the President to establish a regime of undue government secrecy. The
bill properly affords the DNI authority to protect intelligence sources
and methods, but this is the same authority that is currently vested in
the Director of Central Intelligence. The legislation does not include
any new provisions to criminalize or unduly suppress the lawful sharing
of unclassified information, nor does the bill waive any existing
protections of government employees who raise legitimate concerns by
disclosing information to Congress or through other lawful channels.
I fully expect the DNI and the President will exercise their
responsibilities under this bill in a way that fosters--not
unreasonably restricts--the flow and dissemination of information to
Congress, State and local officials, and the public. Certainly, if
there is any indication that the authorities under this legislation are
being misused to unduly stifle the flow of information and to thereby
defeat the purposes of the bill, I fully expect and intend that
Congress will promptly look into and remedy the situation.
Congressional oversight of these issues will be fostered by the reports
that are required during the implementation and operation of the
Information Sharing Environment, and through the establishment of the
Privacy and Civil Liberties Oversight Board.
Does the Senator from Connecticut agree with my assessment?
Mr. LIEBERMAN. I could not agree more. This legislation is designed
to enable the Governmental and non-Governmental entities with security
responsibilities to have access to the intelligence information they
need to do their jobs. And the legislation will also enable and
encourage the diffusion of information about terrorism to the American
people. It has often been said that an informed citizenry is a bulwark
against tyranny, but an informed citizenry is also a bulwark against
terrorism. By fostering the diffusion of information, consistent with
the need to secure intelligence sources and methods, the legislation
should help enable the American people to have the information they
need to make informed decisions about the threats our nation faces and
the steps we must take to overcome those threats.
Mr. NELSON of Florida. I would like to make a statement in regard to
an important provision in the conference report: Section 4071, Watch
Lists for Passengers Aboard Vessels. I would like to first commend the
cruiseline industry for all of its proactive measures to enhance
passenger vessel security. Both the cruise industry and I share the
same commitment--that is to ensure the safety and security of the
millions of passengers and crew traveling on their vessels each year,
in addition to securing our ports.
In an effort to clarify the intent of the provision included in the
Intelligence Reform Conference Committee Report, I want to take this
opportunity to recognize the current procedures in place at the
Department of Homeland Security in regard to passenger vessels and
express support for the increased security procedures undertaken in
this area. Currently, passenger vessels electronically transmit advance
passenger information through the Federal APIS reporting system or
through the 96-hour advanced notice of arrival. This allows the
government to review all passenger and crew manifest information and
check against numerous Federal agency databases to ensure that all
passengers and crew are cleared for sailing, though not always before
departure.
The purpose of section 4071 is to prevent terrorists or suspected
terrorists from physically boarding cruise vessels that depart from
U.S. and U.S. controlled ports. Currently, both Customs and Border
Protection and the Coast Guard require the submission of passenger and
crew manifests. This provision would codify the reporting requirement
for vessels, and ensure that both manifests are checked against one
consolidated terrorist watchlist prior to departure. The provision also
includes language which would allow the Secretary to waive the
requirement for vessels embarking at a foreign port if the requirement
is impractical, however, in such cases the passengers and crew would
continue to be screened prior to arrival at a U.S. port according to
the 96-hour rule.
Mr. LIEBERMAN. I thank the Senator from Florida for highlighting this
important matter. As the Senator pointed out, since January 2003 DHS,
through the Bureau of Customs and Border Protection, has required
commercial aircraft and commercial vessels to electronically transmit
advance passenger and crewmember information in order to assist the
Department in the effective inspection of passengers and crew.
Currently, passenger vessels provide advanced passenger manifests both
upon the original departure of the voyage and 24 to 96 hours before
arrival into the United States. This provision will help streamline the
process, by requiring the manifest data be compared against one
consolidated, comprehensive terrorist database, and by requiring that
the comparison be done prior to the departure of the vessel. The cruise
industry will do its part by ensuring that complete and accurate data
is collected as early as possible, and the Department of Homeland
Security will work to ensure the comparison is done effectively and
efficiently, and make every effort to not delay the departure of these
vessels. We expect the cruise industry and the Department to work
closely together on these issues throughout the rulemaking process.
Ms. COLLINS. I thank both Senators for their excellent summary of the
DHS reporting requirements currently in place. The intent of section
4071 is to encourage DHS to establish a simple and timely method of
collecting information. I want to make clear that the intent of this
provision is to ensure accurate passenger vessel information is
collected and shared with the appropriate authorities in an efficient
manner, so it may be compared against one consolidated database to be
developed by DHS. The provision is not an entirely new requirement. It
is based, in part, on current practices, but is designed to utilize one
consolidated and comprehensive terrorist database that can be used to
screen crew and passenger data more effectively in all transportation
modes, while keeping delays to a minimum.
Mr. NELSON of Florida. I thank Chairwoman Collins and Ranking Member
Lieberman for their comments and support on this important issue. Our
efforts here today are focused on encouraging the Department of
Homeland Security to further increase passenger vessel security. I urge
the Department to work closely with the cruise line industry in
crafting this rule to prevent any unnecessary departure delays from
occurring.
terrorist sanctuaries definition
Ms. COLLINS. Mr. President, section 7102 of the conference report
provides that the term ``repeated provided support for acts of
international terrorism,'' as used in the Export Administration Act,
shall include, but not be limited to, ``the recurring use of any part
of the territory of the country as a sanctuary for terrorists or
terrorist organizations.'' I ask if the ranking member on the
Governmental Affairs Committee, Senator Lieberman, would clarify the
addition of this criteria to the definition used in the Export
Administration Act.
[[Page S11966]]
Mr. LIEBERMAN. ``The recurring use of any part of the territory of
the country as a sanctuary for terrorists or terrorist organizations''
is not the only factor the administration should take into account when
making determinations of which nations are terrorist sponsors for the
purposes of the Export Administration Act. It is just one of the
appropriate factors to be taken into account when the Secretary
exercises his discretion to determine whether the government of a
country has repeatedly provided support for acts of international
terrorism. I understand from the State Department that other factors
that the Secretary of State typically takes into account include:
Whether the government of a country is furnishing arms, explosives or
lethal substances to individuals, groups or organizations with the
likelihood that they will be used in terrorist activities or whether a
government is providing direct or indirect financial backing for
terrorist activities.
Ms. COLLINS. I thank the Senator.
driver's license and personal identification card provisions
Ms. COLLINS. Mr. President, I yield to the Senator from Illinois to
speak on one of the provisions in the conference report.
Mr. DURBIN. Mr. President, I want to discuss section 7212 of the
conference report accompanying the intelligence reform bill that deals
with minimum standards for driver's licenses and personal
identification cards.
I am joined on the floor by Senators Collins, Lieberman, Sununu, and
Lautenberg, who are all my colleagues on the Governmental Affairs
Committee, and who have been leaders in this effort. I hope they will
join in a colloquy to help explain what we collectively intended as we
drafted this provision.
In the days immediately following September 11, 2001, we read in the
newspapers that the hijackers had in their possessions multiple
driver's licenses and State identification cards. The press reported
that some of the nineteen hijackers had obtained these documents from
DMV offices in States that, at that time, had lenient rules on issuing
such documents. They also obtained other official-looking
identification documents from the Internet.
In the last Congress, the Governmental Affairs Committee held a
hearing that revealed that the 9/11 terrorists took advantage of
loopholes in some State DMVs' issuance processes that have been
apparent for years to anyone willing to obtain fake IDs.
Following the hearing, I asked the GAO to study how easy it would be
for someone to obtain driver's licenses and State ID cards from DMVs,
using false pretenses. The GAO investigators went out to several States
and conducted undercover operations where they tried to obtain licenses
using fake breeder documents, or using other false methods. Incredibly,
the GAO investigators succeeded every single time. More incredibly, the
GAO study was undertaken several months after some of these same States
claimed that they reformed their driver's license issuance processes
following the 9/11 tragedies.
In October 2002, I introduced S. 3107, the Driver's License Fraud
Prevention Act of 2002, with Senator McCain, to address the glaring
problems we uncovered with the hearing and the GAO study. The core goal
of that bill was to allow for the Federal Government to work with
States and interested parties to develop a set of minimum security
standards to be applied uniformly to all States.
In drafting that bill, we had three main principles for reforming the
State processes: 1. reform must apply uniformly to all 50 States; 2.
State's rights and jurisdictions must be respected; and 3. applicants,
holders, and users of driver's licenses must have their privacy, civil
liberties, and other constitutional rights protected.
Then, a few months ago, when Senators McCain and Lieberman drafted S.
2774, their comprehensive bill to implement the 9/11 Commission Report,
I worked with them to add a provision that would provide Federal
standards for driver's licenses. This addressed one of the
recommendations that the 9/11 Commission made:
[T]he federal government should set standards for the
issuance of birth certificates and sources of identification,
such as drivers licenses. Fraud in identification documents
is no longer just a problem of theft. At many entry points to
vulnerable facilities, including gates for boarding aircraft,
sources of identification are the last opportunity to ensure
that people are who they say they are and to check whether
they are terrorists.
This provision was adopted unanimously by the Senate as an amendment
to the Collins-Lieberman intelligence reform bill, and is also in the
conference report before us today. I am glad to see that the provision
in the conference report before us today lives up to the three
principles I outlined above.
First, the provision would prohibit Federal agencies from accepting,
for any official purpose, a driver's license or identification card
newly issued by a State more than 2 years after the regulations on
minimum Federal standards are promulgated, unless the document conforms
to such standards. The language also requires the Transportation
Secretary to set a date after which no license may be accepted unless
it conforms to the new standards.
This should encourage all 50 States to work together and adopt the
minimum Federal standards at the same time so that no State will remain
the weakest link in our national efforts to protect our homeland. We
want to make sure terrorists and criminals do not forum shop for the
easiest State from which to obtain fraudulent ID cards.
Second, the language of the Senate bill as adopted in the conference
report requires a negotiated rulemaking process under the
Administrative Procedure Act. This requires the formation of a
negotiated rulemaking committee that would include representatives of
States, among other stakeholders. The committee is empowered to make a
recommendation for the minimum standards to be promulgated by the
Department of Transportation. The mininum standards would address among
other issues 1. documentation required as proof of identity of the
applicant; 2. verifiability of documents used to apply for a license;
3. processing of the applications to prevent fraud; and 4. security
features to be included in the card.
On this point, I would like to commend the chair of the Governmental
Affairs Committee for her tireless efforts on behalf of the States'
interests. Senator Collins has worked to ensure that this bill
recognizes the limited role of the Federal Government in this area--
issuing driver's licenses are a unique State function and that we
should not impose reform measures on States without their valuable
input.
Third, the rulemaking process includes safeguards to protect the
privacy and due process rights of applicants.
Ms. COLLINS. If the Senator from Illinois would yield, I would like
to speak on that issue.
Mr. DURBIN. I am happy to yield to the distinguished manager on the
floor.
Ms. COLLINS. I want to take this opportunity to thank Senator Durbin
for his leadership on this issue. He and I serve together on the
Governmental Affairs Committee and we have worked hand-in-hand on
identity theft issues.
I wholeheartedly agree with what the Senator has said, and I want to
emphasize again how important it is for the appropriate stakeholders to
have a seat at the table in developing a recommendation for minimum
standards that the Department of Transportation will promulgate. I know
that State officials and their representatives from the National
Governors Association and the National Conference of State Legislatures
have raised serious concerns about Congress imposing unfunded mandates
on the States and pre-empting State laws on eligibility requirements.
That is why I support the innovative approach we came up with in the
Senate bill and the conference report that would allow representatives
of State officials to have a real voice in the development of a
recommendation for these Federal standards.
That is also why I believe it is important to emphasize that the
conference report includes language ensuring that any recommendation
made by the negotiated rulemaking committee include an assessment of
the benefits and costs of the recommendation. The report also states
that the Secretary of Transportation shall award grants to States to
help them conform to the minimum standards and that each State shall
receive a minimum allocation of grant monies to help offset the costs
of implementing the new Federal standards.
[[Page S11967]]
Mr. SUNUNU. Will the Senator yield for a question?
Ms. COLLINS. I am happy to yield.
Mr. SUNUNU. I believe the National Governors Association and the
American Association of Motor Vehicle Administrators both endorsed the
Senate version of this language over the House version because, among
other things, the Senate version provided the flexibility and
partnership between the Federal and State governments. Is this an
accurate portrayal of their position?
Ms. COLLINS. The Senator from New Hampshire is correct, and I would
also point out that the White House has also weighed in on that issue.
In its statement of administration policy, dated October 7, 2004, the
White House emphasized the need for ``consultation with the states . .
. to address important concerns about flexibility, privacy, and
unfunded mandates.'' This conference report maintains those important
aspects of the approach in the Senate bill.
Mr. SUNUNU. I thank the Senator.
Mr. LAUTENBERG. I also have a question for the Senator from Maine, or
for any other Senator who helped draft this important provision in the
bill. Would the Senator yield for a question about who else would be
involved in the negotiated rulemaking?
Ms. COLLINS. I see the distinguished Senator from Connecticut is on
the floor and I wonder if the ranking Democrat on the Governmental
Affairs Committee, who is the expert on this issue, would be willing to
engage in this dialog.
Mr. LAUTENBERG. I will address this question to the Senator from
Connecticut. In reading section 7212(b)(4)(B), I see that the
negotiated rulemaking committee to be established by the Secretary of
Transportation has to also include ``interested parties.'' What does
the author of this provision understand to be the intent of this
category?
Mr. LIEBERMAN. I want to thank the distinguished manager for yielding
to me, and the Senator from New Jersey for the excellent question. The
general legal criteria for selecting such parties for inclusion in a
negotiated rulemaking is described in the Negotiated Rulemaking Act. We
have been told by many experts, including the
9/11 Commission, that we need to address every vulnerability to prevent
any future attacks, and that we need to enlist the assistance of
everyone who can contribute to protecting our homeland. So in this
provision, we are really asking for experts and interested parties who
can bring some productive ideas to the table to join us in developing
these minimum Federal standards. Interested parties must also include
groups or organizations presenting the interests of applicants for and
holders of driver's licenses and personal identification cards, such as
consumer organizations and organizations representing immigrants. It is
important that the interests of these groups be considered.
Mr. LAUTENBERG. I thank the ranking member and also the chair of the
Governmental Affairs Committee. I am pleased that they agree that it is
important that representatives of interested parties have a seat at the
table, and I would emphasize that the negotiated rulemaking committee
should also include organizations with technological and operational
expertise in document security, in addition to organizations that
represent the interests of applicants.
Mr. SUNUNU. I would also like to ask a follow-up question to the
Senator from Connecticut. Although the conference report does not
specify any particular group or organization to be included on the
rulemaking committee, it is certainly expected that privacy and civil
liberties groups, along with organizations like the National Conference
of State Legislatures, the National Governors Association, and the
American Association of Motor Vehicle Administrators would play an
important role in the rulemaking process. I would ask my colleague from
Connecticut if I understand this provision correctly?
Mr. LIEBERMAN. I thank the Senator from New Hampshire for his
inquiry. The Senator makes an important point in noting that the
language of the conference report does not specify any particular group
or organization to be included. However, I think a collaborative
rulemaking process would be difficult to imagine without input from
interested groups and organizations. And I believe the distinguished,
chair of the committee would agree that this is the intention behind
our language.
Ms. COLLINS. I absolutely agree with the Senator from Connecticut
that the negotiated rulemaking process has to include groups that
represent the interest of many interested parties, including the
States, and applicants for, and holders of, driver's licenses. It is
also important to note the Department of Homeland Security and other
Federal entities will represent the security interests of the Federal
Government in the process.
This collaborative process among all parties is essential to ensure
that the final rule strikes the right balance of all the competing
interests. One of the interests that should not be lost in this debate
is the need for protecting privacy and civil and due process rights of
all applicants for, and holders of, driver's licenses and personal
identification cards. 1 believe it is crucial that the American people
be assured that these new Federal standards will not encroach on their
fundamental rights and that their personal information will be handled
properly, respectfully, and securely.
That is why we included language in the conference report that
specifically requires the agency rulemaking to include procedural
safeguards for the privacy rights of applicants and holders of driver's
licenses and identification cards.
Mr. LIEBERMAN. The Senator from Maine has raised a very important
part of our language that is worth emphasizing. Moreover, in making our
country safer by tightening standards for identification documents, we
must never trample on any individual's civil and due process rights.
One of the standards we require for the rulemaking is for a State to
confiscate a driver's license or identification card if any component
or security feature of the license or identification card is
compromised. It is important that this standard, as well as all of the
standards, include procedures and requirements to protect the civil and
due process rights of all individuals who apply for and hold driver's
licenses and personal identification cards.
Mr. DURBIN. I ask the Senator from Connecticut a related question on
how this provision of the conference report deals with the issue of
immigration laws.
It is my understanding that the language of the conference report
makes it clear that the Federal regulations to be developed by the
Department of Transportation cannot directly or indirectly infringe on
a State's power to set eligibility criteria for who can qualify to
obtain a driver's license or identification card. So if a State has
unique reasons for allowing or prohibiting certain groups of people to
hold licenses based on their age, physical disability, in-State
residency, or legal status in the United States, then, under the
conference report language, those would continue to be the State's
decisions.
This issue was handled differently by the other Chamber. The House
bill had language that would have taken away the States' rights to
determine eligibility by imposing a new harsh legal presence
requirement for the issuance of driver's licenses. This is the
provision that, I believe, created a lot of misunderstanding in the
press about what the conference report does.
States around the country are already struggling with the issue of
whether to provide licenses to undocumented aliens, and they should
continue to work on the issue through their own legislative processes.
Congress should not preempt the rights of all 50 States through the
backdoor.
The issue of how our country treats those who are here without proper
documentation is a complex one that involves myriad of overlapping
immigration, foreign policy, and economic laws. We should not open that
debate here unless we are ready and willing to address all the
comprehensive proposals that ought to be included in such a debate.
I certainly hope the President will engage in this debate, and soon.
But obviously, we cannot accomplish such an enormous task of
overhauling our immigration laws through the 9/11 Commission bill, and
the 9/11 Commission did not ask us to do that. We should not use this
bill to require the
[[Page S11968]]
States to turn their DMV employees into immigration agents, and this
conference report will not do so.
Mr. LIEBERMAN. I thank the Senator from Illinois for pointing out
this language in the conference report. I know that this is a
complicated and emotional issue and one which the States are already
dealing with on a State-by-State basis. I agree that the conference
report language does not allow the minimum standards to directly or
indirectly infringe on States' power to set eligibility criteria for
who can obtain a driver's license or personal identification card.
Ms. COLLINS. I thank the Senators from New Hampshire, New Jersey,
Illinois, and the distinguished ranking member for their comments,
their valuable contributions to this bill, and for participating in
this colloquy.
dni, nctc
Ms. COLLINS. Mr. President, the legislation that is before the Senate
remedies the problem identified by the 9/11 Commission that there is no
one in charge of the U.S intelligence community. The Commission found
that the Director of Central Intelligence, DCI, has too many jobs--
namely leader of the intelligence community, principal intelligence
adviser to the President, and director of the Central Intelligence
Agency, CIA--to do any of them effectively. In addition, the Commission
found that the DCI lacks sufficient authority to manage the
Intelligence Community, including authority over funding, personnel,
security, and technology.
The intelligence community is dominated by its component agencies and
is organized into ``stovepipes'' that do not share information
adequately among themselves and with the rest of government
effectively. The DCI lacks the authority to break-down these stovepipes
and transform the Intelligence Community into a 21st century
enterprise.
The intelligence community needs to operate as a network in order to
counter 21st century terrorist networks and other agile foes. Despite
many impressive accomplishments since the 9/11 attacks, the
intelligence community is unable to transform itself into a network due
to its anachronistic structure and is still oriented toward fighting
the bureaucratic nation-state enemies of the Cold War.
In response to the 9/11 Commission's findings, this legislation
restructures the intelligence community by creating a strong Director
of National Intelligence, DNI, who can lead, shape, and transform the
15 organizations of the intelligence community into a cohesive network.
It creates a DNI who has the authority needed to set the course for the
intelligence community and ensure that the course is followed.
It is fitting that this legislation should be completed during the
week of December 7, the day on which the United States was attacked at
Pearl Harbor in 1941. The National Security Act of 1947 was adopted in
order to prevent another Pearl Harbor attack in the Cold War. This
legislation seeks to enable the intelligence community to prevent
another 9/11 attack from terrorists and other adversaries in the 21st
century.
Under this legislation, the DNI has two primary responsibilities.
First, the DNI is the head of the intelligence community. In this
capacity, the DNI will unify and optimize the resources of the
intelligence community to serve the President, the National Security
Council, and other intelligence consumers. The direct locus of the
DNI's authority is the National Intelligence Program, which is the new
name for the National Foreign Intelligence Program. The renaming of the
program signifies that the national security threats of the 21st
century straddle the foreign/domestic divide and that our Intelligence
Community must have capabilities that cross this seam.
Second, the DNI is the principal intelligence adviser to the
President. Accordingly, the DNI, not the CIA Director, will be
responsible for briefing the President, including the President's daily
brief. As the President's principal intelligence adviser, the DNI will
rely on the National Counterterrorism Center and the National Counter
Proliferation Center; additional National Intelligence Centers
established by the DNI, which will have primary responsibility for
analysis of particular topics or matters; the National Intelligence
Council; and all of the analysts who reside within the various agencies
of the Intelligence Community.
Mr. President, will the Senator from Connecticut explain the National
Intelligence Centers and their purpose?
Mr. LIEBERMAN. I thank the Senator and agree with her statements. The
National Intelligence Centers are a critical element in the
transformation of the intelligence community into a 21st century
enterprise. The 9/11 Commission stressed the role of the centers in the
restructured intelligence community. The Commission's recommendation
stems from the pre-9/11 and current situation in which no one below the
DCI is responsible for how the CIA, the National Security Agency, and
other intelligence agencies integrate their capabilities against
specific intelligence targets.
The centers will provide unified direction across the intelligence
community to fulfill missions. They are analogous to the Defense
Department's combatant commanders, who unify the military services'
capabilities to perform missions and fight wars. The purpose of the
National Intelligence Centers can be summed up in one word:
``jointness.'' Just as, in the military, the Goldwater-Nichols
Department of Defense Reorganization Act of 1986 sought to integrate
the military services' capabilities by strengthening the combatant
commanders, so this legislation fosters greater jointness among the
intelligence agencies.
The centers are to be created within the Office of the DNI, which
also will house the National Counterterrorism Center, the National
Counter Proliferation Center, the National Intelligence Council, and
other entities whose purpose is to integrate and unify the efforts of
the various intelligence agencies to accomplish intelligence missions.
Among their responsibilities, the centers will provide all-source
analysis of intelligence, identify and propose to the DNI intelligence
collection and analysis requirements, and have primary responsibility
for net assessments and warnings. With their ability to harness the
capabilities of entities across the Intelligence Community and create a
unified effort, the centers will improve the intelligence community's
ability to respond with speed and agility.
Each center will be led by a director who will be appointed by the
DNI and serve as the DNI's principal adviser in that center's area of
responsibility. The center's director reports to the DNI. Each center
will have a professional staff, including personnel transferred,
assigned, or detailed from elements of the intelligence community as
directed by the DNI. The centers will be administratively distinct from
the intelligence agencies, just as the combatant commands are
administratively distinct from the Military Services. This prevents a
center from being subsumed within and dominated by a particular agency.
I should add one point of clarification. The legislation calls on the
DNI to explore creating an open source intelligence center to improve
the collection and analysis of open source materials. This entity is
different from the national intelligence centers, which are organized
on geographic or transnational topics rather than functional topics
like human or signals intelligence. This center would be like the
agencies and entities in the intelligence community--like the CIA or
the National Security Agency--that are organized to exploit particular
collection disciplines.
Ms. COLLINS. I thank the Senator and concur with his description of
the centers.
This bill provides the DNI with significant new authorities regarding
such areas as determining the National Intelligence Program budget and
executing its appropriation, transferring funds and personnel, and
reprogramming funds. I would like to summarize some of these critical
authorities.
Under this bill, the DNI will have sole authority to ``develop and
determine'' an annual budget for the National Intelligence Program
based on the budget proposals provided by the heads of the agencies and
organizations of the intelligence community as well as these agencies'
and organizations' respective department heads. The word ``determine''
in the legislation means that the DNI is the decisionmaker regarding
the budget and does not share
[[Page S11969]]
this authority with any department head. The DNI is to produce a
consolidated annual budget for the National Intelligence Program, which
ensures the integration of the agencies and entities within the
intelligence community.
The heads of such agencies and organizations within the intelligence
community must provide directly to the DNI such other information as
the DNI requests for the purpose of determining the budget. Thus, the
DNI will have direct access to information from such agencies as the
National Security Agency in the budget-build process and so be able to
understand the needs of each component of the Intelligence Community
when determining the annual consolidated national intelligence budget.
The department heads may not interpose themselves between the DNI and
the heads of agencies and organizations within the intelligence
community.
Whereas the DCI today effectively only has a role in the execution of
the CIA budget, the DNI will ``ensure the effective execution'' of the
entire National Intelligence Program appropriation across the
intelligence community. The Director of the Office of Management and
Budget, OMB, for instance, must apportion National Intelligence Program
funds--whether for the CIA, Federal Bureau of Investigation, FBI,
National Security Agency, or any other element of the intelligence
community--at the DNI's ``exclusive direction.'' The DNI's ``exclusive
direction'' is intended to extend to apportionment plans as well, which
delineate how appropriated funds will flow from the U.S. Treasury to
the agencies and entities of the intelligence community. The DNI is
further responsible for managing the National Intelligence Program
appropriation by ``directing the allotment or allocation'' of such
appropriation through the heads of departments containing elements of
the intelligence community. Department comptrollers must then allot,
allocate, reprogram, or transfer those funds ``in an expeditious
manner.''
In order to ensure that the National Intelligence Program budget is
executed in accordance with the DNI's direction, the DNI will ``monitor
the implementation and execution'' of the appropriation, including by
audits and evaluations. A department, agency, or entity has no
authority to refuse or obstruct DNI-mandated audits. If department
comptrollers act in a manner inconsistent with the DNI's directions,
then the DNI shall report such action to the President and to Congress
within 15 days. I expect that the DNI will need to create a chief
financial officer with comptroller-like responsibilities to implement
these authorities.
Some observers have raised concerns regarding whether departmental
comptrollers are able to `tax' the National Intelligence Program
appropriation channeled through their departments in order to pay for
fact-of-life costs such as increased fuel costs. The legislation
precludes any reprogramming or transfer of funds from the National
Intelligence Program without the DNI's consent. In addition,
apportionment plans--in which any `taxes' would have to be reflected--
are to be prepared at the DNI's exclusive direction. Accordingly, under
this legislation, comptrollers are not authorized to exact such `taxes'
unilaterally. Congressionally mandated cuts will also be implemented
through the apportionment process, which will occur at the exclusive
direction of the DNI.
We have worked closely with White House, OMB, and the National
Security Council staff in developing this budget language, and all
agree that this language will provide the new DNI with the full budget
authority needed to manage the national intelligence budget and
appropriation effectively.
The new DNI will also have significantly expanded authorities to
transfer personnel and funds. After OMB's approval and congressional
notification, the DNI may transfer personnel from one element of the
intelligence community to another for not more than 2 years as long as
the transfer is for a higher priority intelligence activity and
supports an emergent need, improves program effectiveness, or increases
efficiency. Most significantly, while personnel transfers must be made
in accordance with procedures developed by the DNI and department
heads, those department heads will no longer have the right to object
to such transfers--as they do under current law. Finally, the DNI is
also provided additional authorities to transfer a limited number of
personnel upon the establishment of the Office of the DNI and each time
a new National Intelligence Center is created.
As I mentioned, National Intelligence Program funds may not be
transferred or reprogrammed without the DNI's approval except in
accordance with procedures prescribed by the DNI. All transfers and
reprogrammings must be for a higher priority intelligence activity;
must support an emergent need, improve program effectiveness, or
increase efficiency; and may not involve funds from the CIA Reserve for
Contingencies or a DNI Reserve for Contingencies. Most importantly, the
DNI will not require concurrence for such transfers or reprogrammings
from affected department heads as long as they are less than $150
million and 5 percent of a department's National Intelligence Program
funds and do not terminate an acquisition program. Thus, the DNI will
have unilateral authority to transfer or reprogram a significant
National Intelligence Program funds, subject to OMB approval and
congressional notification. Permit me to take a moment to mention the
DNI Reserve for Contingencies. I believe that creation of this reserve
is important to permit the DNI to meet special circumstances that
arise.
The DNI is also responsible for overseeing the coordination of the
intelligence community's liaison with foreign intelligence and security
services to avoid having each agency of the intelligence community
pursue an individualistic approach. The DNI will create common policies
and strategy among the various entities in the intelligence community
to ensure maximum returns from foreign liaison relationships. In
implementing the DNI's strategy, the CIA will coordinate foreign
liaison ``on the ground'' in foreign countries.
The DNI should be in the chain of command involving the conduct of
covert action and will be responsible and accountable to the President
for such conduct by the intelligence community, including their
funding. The DNI would be undercut if the President interacted directly
with the CIA Director--who is the DNI's subordinate--or any other
element of the Intelligence Community directly regarding covert action.
Instead, this legislation envisions that the President will give orders
regarding covert action directly to the DNI, who will then task the CIA
and other agencies of the Intelligence community as appropriate.
Mr. LIEBERMAN. I agree with the Senator's statements. I would like to
elaborate on the CIA's role under this legislation. With respect to the
CIA, the 9/11 Commission stressed that the DNI should no longer be
responsible for managing the day-to-day activities of the CIA. The
legislation has been very carefully crafted to ensure that the Director
of the CIA is subordinate to and reports to the new DNI only, and not
directly to the President, but that the DNI does not manage the CIA's
daily activities. This situation is similar to how a CEO runs a company
composed of various business divisions. The CEO is the undisputed head
but focuses on high-level issues of strategy, policy, personnel, and
budgets rather than getting involved in the daily workings of any
single business division. Likewise, the DNI should not manage the CIA
and other intelligence agencies. No CEO would run a company that way,
nor should the DNI manage the Intelligence Community that way.
To emphasize that the DNI is no longer the head of the CIA, the
legislation stipulates that the Office of the DNI--which houses the
centers and other entities designed to unify and integrate agencies'
capabilities--cannot be co-located with any other element of the
intelligence community after October 1, 2008. This provision ensures
that the DNI is not put in the inherently conflicted position of being
both the CEO of the intelligence community and closely aligned with one
of the subsidiary elements simultaneously.
The Senator from Maine previously stated that the DNI, not the CIA
Director, is the President's principal intelligence advisor and is
responsible for briefing the President or preparing the President's
daily brief. The CIA Director is subordinate to and reports to the
[[Page S11970]]
DNI only, and not directly to the President, both regarding
intelligence activities and covert action. The CIA Director should
concentrate on ensuring that the Central Intelligence Agency transforms
its human intelligence and special activities capabilities to meet the
difficult challenges of the 21st century. The CIA Director should also
ensure that the Central Intelligence Agency trains analysts of the
highest caliber for deployment to the centers and that whatever
analysis is conducted by the CIA in-house--which would primarily be on
topics for which there is no center--is done with the greatest
independence, clearest objectivity, and best tradecraft.
I would like to discuss for a moment the CIA Director's salary. Under
current law, the DCI is paid at Executive Schedule Level II pursuant to
section 5313 of title 5, United States Code. The legislation places the
DNI at Executive Schedule Level I but does not delete the reference to
the DCI at Executive Level II. Section 1081(b) of the legislation makes
clear that any reference to the DCI in the DCI's capacity as the head
of the CIA in any law, regulation, document, paper, or other record of
the United States shall be deemed a reference to the CIA Director.
After passage of this legislation, the provision in current law that
states that the DCI is paid at Executive Schedule Level II will
therefore refer to the CIA Director.
Ms. COLLINS. I thank the Senator and agree with his statements. I
previously discussed the purpose of the Office of the DNI, which is to
house entities such as the centers which integrate and unify the
efforts of the various intelligence agencies to accomplish intelligence
missions. The legislation authorizes the DNI to create new entities
within the Office of the DNI to respond to new challenges, such as new
centers and ad hoc groups.
The legislation also authorizes the DNI to coordinate the performance
by elements of the intelligence community of services of common concern
that can be more efficiently accomplished in a consolidated manner. For
example, there may be information technology services, security
services, and personnel services that are being performed in
duplicative or competitive manner by various entities across the
intelligence community and that the DNI believes would be more
efficiently performed--such as by exploiting economies of scale, or
preventing discrepancies between agencies--when done in consolidated
manner. The DNI may select one entity within the intelligence community
to perform those services for the community. The DNI may also create a
new entity within the Office of the DNI to perform such services. I
expect that the DNI will exercise this authority in order to streamline
the intelligence community, reduce discrepancies across agencies, and
save resources that can be devoted to producing better intelligence.
I want to highlight two other DNI authorities. Current law precludes
the DCI from directing, managing, or undertaking electronic
surveillance or physical searches under the Foreign Intelligence
Surveillance Act, FISA unless otherwise authorized by statute or
executive order. This legislation also precludes the DNI from directing
or undertaking such operations. As the legislation makes clear, the
role of the Department of Justice and the Attorney General under FISA
are unaffected by this legislation. However, this legislation does
delete a restriction that now precludes the DNI from managing FISA
collection. This change should better ensure that national intelligence
collected under FISA is used efficiently and effectively for national
purposes.
Current law also makes the CIA the manager of all human intelligence
operations. The legislation changes that formulation, authorizing the
CIA to manage human intelligence operations abroad. The intent of the
legislation is not to have human intelligence operations split among
the CIA, the FBI, and elements of other agencies with no one in charge.
Instead, it is the DNI who is in charge. Of course, the DNI should not
be spending his or her day managing human intelligence operations.
Instead, the DNI should delegate his or her authority to an official
within the intelligence community, when appropriate.
Indeed, the issue of delegation is critical. This legislation
centralizes authority in the DNI in order to clarify responsibility,
authority, and accountability for the intelligence community. However,
the intent of this legislation is not that the DNI should retain all
authority himself or herself. Like any good CEO, the DNI should
delegate and decentralize. This legislation centralizes authority so
that the DNI can build a network--with information, resources, and
personnel flowing freely across the agencies of the intelligence
community--that operates in a decentralized, fast, and flexible manner.
For example, the DNI should delegate authority to the heads of the
National Intelligence Centers so that they can utilize capabilities
throughout the intelligence community to accomplish intelligence
missions.
Included in this legislation is very strong tasking authority for the
DNI. Under current law, the DCI has authority to task assets across the
intelligence community to collect information. Pursuant to the National
Security Act of 1947 as amended, the DCI controls the tasking of
national intelligence assets. Section 403-3 of Title 50, United States
Code, states explicitly that the DCI ``determine[s] collection
priorities, and resolve[s] conflicts in collection priorities levied on
national collection assets.'' The President's latest Executive Order
13355 on the issue is even stronger: It gives the DCI authority to
``manage collection tasking.'' This language is interpreted in practice
that the DCI decides whether a satellite is to be positioned over North
Korea or Iraq. Of course, the DCI consults closely with the Secretary
of Defense--but the DCI is the final decision-maker. And there is no
evidence that the military has been dissatisfied in recent conflicts
with the supply of intelligence from national collection assets.
The legislation's provision regarding tasking authority merely
sharpens current law by making the DNI's authority to task collection
and analysis explicit. In this way, the bill essentially codifies
current practice.
The DNI's tasking authority will be critical to the DNI's success.
The 9/11 Commission envisioned a strong, empowered DNI, with more--not
less--authority to control the collection and analysis of intelligence
information. The Commission cites specifically the DCI's limited
ability ``to influence how . . . technical resources are allocated and
used'' as a problem. 9/11 Commission Report, p. 409. In a hearing
before the Senate Armed Services Committee on August 17, 2004,
Secretary of Defense Donald Rumsfeld spoke of the need to rebuild the
intelligence community ``along 21st century lines.'' According to
Secretary Rumsfeld, this reorganization includes ``a national
intelligence director with authority for tasking collection assets
across the government.''
This legislation includes a provision that the Senator from
Connecticut and I drafted requiring that the President issue guidelines
to ensure the effective implementation and execution within the
Executive branch of the authorities granted to the DNI under this
legislation, in a manner that respects and does not abrogate the
statutory responsibilities of department heads. The interaction among
the DNI, department heads, and heads of agencies and entities within
the intelligence community is critical and must be as smooth and
efficient as possible. These guidelines will be important for ensuring
such seamless interaction.
This provision does not authorize the President or department heads
to override the DNI's authority as contained in this legislation. This
legislation has carefully crafted authorities for the DNI--including
budget, transfer, tasking, et cetera--that give the DNI sufficient
authority to manage the Intelligence Community. This provision is not
intended and should not in practice trump or undermine in any way the
DNI's authorities contained in the legislation.
In addition, the legislation amends the Secretary of Defense's
authority to implement the DNI's decisions regarding the National
Intelligence Program, contained in section 105(a) of the National
Security Act of 1947 as amended, to ensure that the Secretary of
Defense does not interact with the Intelligence Community in a way that
is inconsistent with the DNI's authorities. This provision is another
example of Congress's intent to create a strong
[[Page S11971]]
DNI with sufficient authority to manage and be accountable for the
Intelligence Community, including those elements within the Department
of Defense.
Some observers have raised concerns that this legislation will impede
the flow of intelligence to the warfighter. I believe that nothing is
further from the truth. The warfighter will benefit from far-reaching
intelligence reorganization that creates a DNI with significant
authorities. The DNI will have the power to force the various Defense
and non-Defense intelligence entities to work together seamlessly,
creating a more accurate intelligence product that can be shared more
quickly than today. The DNI would also be a single point of contact for
the military--and the military would know whom to hold responsible if
intelligence from national assets is inadequate. The DNI inevitably
will prioritize the warfighter's need for intelligence, subject to the
direction of the President as to overall intelligence priorities.
Mr. LIEBERMAN. I thank and agree with the Senator. This reform
legislation will benefit our troops in the field, as well as better
protect our citizens at home.
The 9/11 Commission found that the U.S. intelligence agencies are
still organized to counter yesterday's challenges, not today's threats.
During the Cold War, the enemy was well-known, and our intelligence was
appropriately focused on determining its capabilities. We could
tolerate then a stove-piped intelligence system where the FBI's
intelligence efforts were separate and disconnected from overseas and
military intelligence because our enemies were not attacking us from
within our borders. We could tolerate then a separate overseas
intelligence system run by the CIA because there was no clear reason to
integrate foreign military and domestic intelligence. We could tolerate
then a separate military intelligence system because we faced a
military force comparable to our own, using conventional tactics
against us, different from the threats we faced at home.
In the war on terror, all that has changed. The threat has become
asymmetrical, meaning a weaker enemy attacks a stronger force at its
points of vulnerability. That's how al-Qaeda operates, working in the
shadows, attacking us on all fronts: domestic, overseas, civilian and
military.
The cold fact is that the killing zone has expanded. This requires a
much more integrated and more agile intelligence apparatus. It requires
someone in charge with the authority to force disparate agencies to
share information, to determine overall priorities, and to make sure we
maximize the return on our enormous investment in intelligence so that
we will be successful at thwarting an enemy determined to kill
civilians as well as military combatants.
A modernized intelligence community will help us better protect both
our citizens and our soldiers. Reforms that help achieve greater
``unity of effort,'' as the 9/11 Commission put it, will clearly
benefit our troops in the field because information critical to their
safety and success could just as easily come from the CIA or the FBI as
from the Pentagon's own intelligence systems. Similarly, the vital
clues to stop the next attack on our own soil could come from the
National Security Agency or the other national intelligence agencies
within the Department of Defense. Fully connecting all these pieces is
now critical to our total security effort.
But as the 9/11 Commission showed in its powerful report, we will not
succeed if there is no one in charge who is able to forge unity among
all of our intelligence agencies. A fundamental lesson of bureaucracy
is that there will be no coordination at the working levels if there is
no unified authority at the top. And there will be no real unified
authority in the intelligence community unless a Director of National
Intelligence has significant authority over budgets and people. Our
troops battling in Iraqi streets must have, in real time, not simply
traditional military intelligence on the force levels they face, but
CIA-developed intelligence on the nature and identity of the al Qaeda
and insurgent combatants firing at them.
Ms. COLLINS. I thank the Senator from Connecticut and agree with his
statements. Mr. President, I wonder if my distinguished colleague from
Connecticut would be kind enough to describe the National
Counterterrorism Center provision in our bill.
Mr. LIEBERMAN. I thank the Senator from Maine. The 9/11 Commission's
recommendation for a National Counterterrorism Center, NCTC, arises
from two main findings. First in keeping with the Commission's general
finding regarding the intelligence community, the intelligence agencies
are not fully integrated in their efforts against terrorism. No one
below the DCI has responsibility, accountability, and authority for the
counterterrorism mission. Second, counterterrorism requires an
integrated Executive branch-wide effort in which departments and
agencies beyond intelligence must work together on a tactical level,
with agility, and a rapid pace--like a network--but today
``stovepipes'' still dominate the Executive branch. Although
departments and agencies are cooperating at unprecedented levels, the
Commission concluded that such cooperation is more confederative than
truly joint and integrated. To remedy these two problems, the
Commission proposed that the NCTC be responsible for both joint
counterterrorism intelligence and joint counterterrorism operational
planning.
The legislation creates the NCTC along the lines of the Commission's
model. Per the Commission's recommendation, the NCTC director is a
Deputy Secretary-equivalent and with a dual line of reporting: (1) to
the DNI regarding the NCTC's budget and programs and concerning
intelligence matters, and (2) to the President regarding Executive
branch-wide planning. This arrangement reflects the nature of the
NCTC's mission, which is both to integrate intelligence--for which the
DNI is the ultimate authority--and to conduct Executive branch-wide
planning--which is beyond the DNI's jurisdiction.
As per the Commission's proposal, the NCTC will have two directorates
to reflect its dual mission. The NCTC's Directorate of Intelligence
will in essence be the national intelligence center for
counterterrorism, but the NCTC will be more than just a strengthened
TTIC. The NCTC will transcend the TTIC because the NCTC will clearly be
preeminent in the intelligence community for counterterrorist analysis,
will propose collection requirements to the DNI and otherwise integrate
the intelligence community's capabilities, and will attract the best
professionals from across the intelligence community. The tasks of this
directorate are similar to those of any national intelligence center:
integrating the activities of intelligence agencies such as the CIA and
the National Security Agency; performing all-source analysis on
transnational terrorism; being the repository for intelligence on
transnational terrorism; conducting net assessment matching terrorist
capabilities and intentions with U.S. vulnerabilities and
countermeasures; and warning about potential threats.
Some observers question whether the NCTC will absorb all the
counterterrorism analysts from across the intelligence community.
However, those who question whether the NCTC would drain our precious
supply of analysts actually prove the case for the NCTC--because there
are so few analysts, we need to centralize this precious resource
rather than dissipate them across the intelligence community. And the
same reasoning applies to the National Counterproliferation Center and
the National Intelligence Centers as well.
The NCTC's second directorate is for Strategic Operational Planning.
This directorate would conduct strategic operational planning for the
entire Executive branch--ranging from the combat commands, to the State
Department, to the FBI's Counterterrorism Division to the Department of
Health and Human Services to the CIA.
Witnesses at the Committee on Governmental Affairs hearing on August
26, 2004, argued that interagency operational planning is already
taking place organically and thus there is no need for the NCTC. Yet
the witnesses could only identify planning processes within their
organizations in which representatives from other agencies were
involved, not a single truly joint planning process across the
Executive branch. The military had a process--but so did then-DCI
George Tenet, who
[[Page S11972]]
had a daily counterterrorism meeting. And the multitude of joint
planning processes drain personnel, time, and resources. Moreover, the
lack of a central coordinating mechanism provides no safety net for an
issue falling through the cracks when each agency--viewing it through a
stovepipe--misses the issue's overall significance. There should be
only one interagency strategic operational planning process, run by the
NCTC, for counterterrorism.
The Commission has analogized this directorate to the J-3 Directorate
of Operations of the Joint Staff, which works for the Chairman of the
Joint Chiefs of Staff. J-3 does planning for operations conducted by
the combatant commands. However, because the Chairman is not in the
Defense chain of command, J-3 has no operational authority to enforce
its plans on the combatant commands. The Chairman's stature gives J-3's
plans a certain amount of persuasive authority, but J-3 has no direct
authority over the combatant commands. As the Commission has stated
explicitly, and as reflected in this legislation, the NCTC's
Directorate of Strategic Operational Planning has no operational
authority. Accordingly, the NCTC would not interfere with the military
chain of command.
I would like to discuss in-depth the definition of strategic
operational planning. Some observers have advocated confining the
NCTC's operational planning function to high-level strategic issues,
such as fashioning an Executive branch-wide strategy for winning Muslim
``hearts and minds''--leaving more tactical planning to the agencies
individually. An Executive branch-wide ``hearts and minds'' strategy
would fall within the NCTC's purview, but the NCTC must reach below
that strategic level in order to have the impact envisioned by the
Commission and this legislation.
The legislation defines strategic operational planning to include
``the mission, objectives to be achieved, tasks to be performed,
interagency coordination of operational activities, and the assignment
of roles and responsibilities.'' Examples of missions include
destroying a particular terrorist group or preventing a terrorist group
from forming in a particular area in the first place. Objectives to be
achieved include dismantling a terrorist group's infrastructure and
logistics, collapsing its financial network, or swaying its
sympathizers to withdraw support. Tasks include recruiting a particular
terrorist, mapping a terrorist group's network of sympathizers, or
destroying a group's training camp. Examples of interagency
coordination of operational activities include the hand-off from the
CIA to the Department of Homeland Security and the FBI of tracking a
terrorist as that terrorist enters the United States, or the
coordination between CIA and special operations forces when operating
against a terrorist sanctuary abroad.
With respect to the assignment of roles and responsibilities, the
NCTC will not dictate to each department or agency which personnel or
capabilities to utilize, unless the selection of the personnel or
capabilities directly impact the mission such as a risk calculation or
likely collateral damage.
Perhaps the best example of an issue for strategic operational
planning is the hunt for Osama bin Laden. There is no policy dispute
about the objective; all departments and agencies agree. But the
mission inherently cuts across the Executive branch: Intelligence
agencies must find bin Laden's whereabouts, diplomats must pressure
countries to cooperate, public diplomacy must persuade his sympathizers
to turn him in, and special operations forces must raid suspected
sanctuaries. Some of the action is longer-term, such as using
diplomatic and economic pressure to win countries' cooperation. Some of
the action is very short-term. For example, the NCTC would recommend to
the CIA and the Defense Department's Special Operations Command, SOCOM,
whether to infiltrate or raid a sanctuary; indeed, one can imagine a
situation in which the CIA recommends infiltrating while SOCOM
recommends raiding, and now the only independent interagency body that
can help resolve the issue is the National Security Council staff. If
SOCOM objected, then the legislation's provision for the resolution of
disputes would apply. If the CIA and SOCOM accepted the NCTC's plan,
the NCTC would not dictate how the department or agency performed the
mission, i.e., how the CIA infiltrated the group or SOCOM executed the
raid.
An analogy for strategic operational planning is like lanes in a
highway, each lane symbolizing an agency's expertise (e.g., special
operations, espionage, and law enforcement). The NCTC will not tell
each agency how to drive in its lane. But effective counterterrorism
requires choosing which lane--meaning which type of activity, and thus
which agency, to utilize in a particular situation. The NCTC would
select the lane but would have no authority to order an agency to
drive.
Returning to the discussion of the DNI's authorities, I note that the
new DNI will take on a number of additional duties and responsibilities
beyond what the DCI has today. I would ask my friend from Maine, how
will the new DNI manage the new community functions that he or she will
need to direct as head of the intelligence community?
Ms. COLLINS. I thank my colleague and agree with his statements. The
new DNI will not need to create a staff from scratch to manage the
intelligence community. Today, the DCI relies on the Deputy Director of
Central Intelligence for Community Management, DDCI/CM, and that
official's staff to coordinate the activities of the intelligence
community. This professional staff already has substantial experience
that will be invaluable to the DNI in managing the intelligence
community. This legislation supplants the DDCI/CM but transfers the
official's staff as the DNI considers appropriate to the Office of the
DNI. The DNI can then build on this staff as necessary to implement the
DNI's new authorities.
Finally, I would like to describe the implementation of this
legislation. The legislation does not permit the current DCI to become
the DNI without going through the Presidential nomination and Senate
confirmation process for the DNI position. This legislation gives the
DNI different authorities and responsibilities than the DCI has today.
As such, the Senate will need to provide advice and consent to the
President's selection for the DNI.
Title I of the intelligence reform legislation takes effect not later
than six months after the Act's enactment. The legislation envisions
that the President will decide upon the effective date for title I and
may effectuate parts of title I at different times within that 6-month
period. For example, the President could decide that all or parts of
title I become effective upon the confirmation of the DNI. Until such
time as the President determines--but in no event later than six months
after enactment--the DCI will remain head of the intelligence community
and the DDCI/CM and the various assistant DCIs will continue to report
to him. The legislation requires that the President submit an
implementation report to Congress not later than 180 days after the
act's effective date, but it is desirable that this report be submitted
as soon as possible.
Some provisions in title I explicitly state that they are effective
on the act's date of enactment, namely the transfer of the TTIC or its
successor to the NCTC and the transfer of the staff of the DDCI/CM to
the Office of the DNI as appropriate. The NCTC has already been created
by Executive order, absorbing the TTIC. With respect to the staff of
the DDCI/CM, that staff does not cease to exist upon the act's
enactment but rather becomes available for transfer to the Office of
the DNI after the Office of the DNI is established.
This legislation requires the DNI to take various actions within 180
days of the act's enactment, including submitting a report to Congress
concerning operational coordination between the CIA and the Defense
Department, assigning an individual or entity to be responsible for
analytic integrity, and identifying an individual to serve as an
ombudsman. The DNI also shall prescribe regulations and other
directives not later than one year after the act's enactment. Thus we
hope that the President will move speedily to nominate an individual to
serve as the DNI. The threats arrayed against the United States do not
afford us a grace period.
information sharing
Mr. LIEBERMAN. Mr. President, I wish to call attention to an
important
[[Page S11973]]
part of this legislation--the provision in section 1016 on information
sharing.
The effective use of information, from all available sources, is
essential to the fight against terrorism. The 9/11 Commission, in fact,
concluded that the biggest impediment to all-source analysis, and to a
great likelihood of ``connecting the dots,'' is the resistance to
information sharing. As the commission documented, in the period
preceding September 11, 2001, there were instances o potentially
helpful information that was available but that no person knew to ask
for; information that was distributed only in compartmented channels;
and information that was requested but could not be shared.
As a result of its findings, the commission urged that a new approach
to information sharing be developed that would help move from a ``need-
to-know'' culture of information protection to a ``need-to-share''
culture of integration. Noting that no single agency could develop a
meaningful information sharing system on its own, the commission
recommended a new, government-wide approach, based on the conceptual
model of the Systemwide Homeland Analysis and Resource Exchange SHARE
Network proposed by a task force of leading professionals assembled by
the Markle Foundation.
This legislation puts the commission's information sharing
recommendations in place, requiring that the President establish a new,
government-wide Information Sharing Environment ISE to share
information among federal, State, local and tribal entities, and, where
appropriate, with the private sector which owns or controls much of the
nation's critical infrastructure)--in a manner consistent with national
security and with the protection of privacy and civil liberties.
Ms. COLLINS. I agree wholeheartedly with my colleague about the
importance of these information sharing provisions. I also want to
emphasize that the ISE is not some mammoth new database. Indeed, it is
not just technology, but rather represents a combination of
technologies and policies designed to facilitate the appropriate
sharing of terrorism information.
Section 1016 includes a list of attributes the ISE is required to
have. These include such things as facilitating the sharing of
information among those who have differing levels of access or
clearance or different capacities to make use of the information--i.e.,
providing information from the beginning in its most shareable form, so
that the maximum number of individuals can access the information in at
least some meaningful form at its earliest point of consumability--
while having additional details available to those who are granted
appropriate access; in this way, the right information gets to the
right consumer at the right time. It also includes building on existing
systems where possible, rather than creating whole new, and potentially
overlapping, systems, and employs an information access management
approach that controls access to the data rather than just systems and
networks without sacrificing security. And it includes incorporating
protections for individuals' privacy and civil liberties from the very
beginning--both in the policies of the environment and in technologies
and processes to ensure that the policies are adhered to.
Mr. LIEBERMAN. Another important aspect of this provision is the
mechanisms it puts in place to ensure that this new approach to
information sharing actually gets implemented. We have known for some
time now about the critical importance of information sharing in the
fight against terrorism. But translating generalized calls for improved
information sharing into a working, fundamentally changed system
requires hard and sustained work. To help ensure that this ambitious
new effort will succeed, and that the ISE is actually implemented as
envisioned, the legislation provides for a staged development process,
with periodic reporting and the promise of significant and sustained
Congressional oversight.
The first benchmark in the ISE development process is 180 days after
enactment: by this date, a review must be conducted of current agency
capabilities; in addition, a description of the technological, legal
and policy issues presented by the creation of the ISE, and how they
will be addressed, must be submitted to the President and Congress.
Within 270 days of enactment, the President is required to issue
guidelines for acquiring, accessing, sharing, and using information,
and, in consultation with the Privacy and Civil Liberties Oversight
Board established in section 1061 of the legislation, guidelines to
protect privacy and civil liberties in the development and use of the
ISE. These two sets of guidelines are critical in defining the
framework of the ISE, and their issuance will provide an important
opportunity for Congress to evaluate the proposed direction of the ISE.
Within a year, a detailed implementation plan for the ISE, including
budget estimates and proposed performance measures, must be submitted
to Congress, which will provide for a further opportunity for
Congressional evaluation. Finally, in 2 years, and annually thereafter,
the President must submit a report to Congress on the state of the ISE
and of information sharing across the Federal Government.
Ms. COLLINS. In addition to the step-by-step development process my
colleague has described, I would also note that the other key means by
which the legislation seeks to ensure the successful implementation of
the ISE is through the appointment of a program manager. Not later than
120 days after enactment of the legislation, the President is required
to designate an individual who is to be responsible for information
sharing across the Federal Government. By placing a single individual
in charge of the development of the ISE, the legislation seeks to
ensure the accountability and focus necessary to accomplish this
critically important task.
Although the President has discretion to determine whom to designate
as program manager, it is essential, and required by subsection
1016(f)(1), that the program manager have and exercise government-wide
authority; the ISE will involve the sharing of terrorism-related
information from across the government, including from entities outside
the intelligence community--whether bioterror information from the
Centers for Disease Control or relevant border information from Customs
and immigration offices at the Department of Homeland Security--so that
the program manager will be someone with responsibilities that cut
across the Federal Government as well. Although the DNI is, and will
continue to be, responsible for setting information sharing standards
throughout the intelligence community (a responsibility expressly
recognized in subsection 1016(e)(10)(A)), it is not our intent that the
DNI also assume the further responsibilities of program manager. We
expect and intend that whomever is designated as program manager will
have the development of the ISE as their sole or primary
responsibility, and we believe that it is desirable that the individual
have management expertise in enterprise architecture, information
sharing and interoperability.
The legislation provides that the program manager is to serve for 2
years, during the initial development of the ISE, to ensure that the
project gets off to a sound start. As part of the implementation plan
to be submitted to Congress after one year, the program manager is to
recommend a future management structure for the ISE, including a
recommendation as to whether the position of program manager should
continue. During this two-year start up period, the program manager
will be assisted in his or her efforts by an Information System Council
established by the legislation and based on the existing Information
System Council established by the President through executive order.
The council, made up of representatives from agencies participating in
the ISE, will not only advise the President and the program manager,
but also, among other things, provide a means of coordinating among the
various agencies participating in the ISE, helping to resolve
interagency disputes that may arise. In performing its duties, the
council is to consider input from those outside the Federal Government
as well--including state, local, and tribal officials and those in the
private sector who are potential participants in the ISE or who have
relevant policy or technical expertise.
I also note the legislation provides that the individual agencies
that possess terrorism information or otherwise participate in the ISE
are to fully
[[Page S11974]]
cooperate in the development of the ISE. The cooperation of all
relevant agencies is critical to the success of this government-wide
information sharing effort, and agencies can expect Congressional
oversight to ensure that they are planning for, and fully contributing
to, the construction of the ISE.
Privacy and Civil Liberties Oversight Board
Mr. LIEBERMAN. Mr. President, among its other significant provisions,
the bill before the Senate, S. 2845, establishes a new Privacy and
Civil Liberties Oversight Board. Waging the war on terror has required
that the federal government take steps that consolidate governmental
authority and increase the government's presence in our lives. As the
9/11 Commission observed, this shift of power and authority to the
government, while necessary, calls for ``an enhanced system of checks
and balances to protect the precious liberties that are vital to our
way of life.'' Following the commission's recommendation on this point,
this bill creates, for the first time, a Board that can look across the
federal government and ensure that liberty concerns are appropriately
considered in the policies and practices of the executive branch.
Ms. COLLINS. Specifically, the board established in the bill is to be
made up of five members, who are to be appointed by, and serve at the
pleasure of, the President. Two of the five members--the chairman and
vice-chairman--are also required to be Senate-confirmed. To help ensure
an independent and effective board, all of the members are to come from
outside the federal government and are expected to be people of
stature, selected on the basis of their achievements, experience and
independence. All of the members of the board are expected to devote
significant time to this important endeavor, and the chairman may be
appointed to a full-time position; given the broad responsibilities of
the board, we believe that having a full-time chairman though not
required would usually be the wisest course.
The Privacy and Civil Liberties Oversight board's purpose is to
ensure that privacy and civil liberties concerns are appropriately
considered in the implementation of all laws, regulations, and policies
that are related to efforts to protect the Nation against terrorism.
The board is empowered to carry out its mission in two equally
important ways. First, the board is to advise policy makers at the
front end, to ensure that when executive branch officials are
proposing, making or implementing policy, they appropriately consider
and protect privacy and civil liberties. Second, the board is to
conduct oversight, by investigating and reviewing government actions at
the back end, reviewing the implementation of particular government
policies to see whether the government is acting with appropriate
respect for privacy and civil liberties and adhering to applicable
rules. Further, the bill provides the board with the tools it will need
to carry out its functions.
Mr. LIEBERMAN. I agree with the Senator from Maine that the board
will have the tools necessary to carry out its purpose. In its advice
role, the board has a broad mandate to review and provide advice to the
President and to federal agencies on proposed policies, whether or not
codified formally in regulations, and on the implementation of new and
existing laws, regulations and policies, in order to ensure that
privacy and civil liberties are appropriately considered. Following a
related 9/11 Commission recommendation, the board is further
specifically directed, when providing advice to executive branch
officials on proposals to retain or enhance particular governmental
powers, to consider whether the need for those powers have been
balanced against the need to protect civil liberties and privacy and
whether there are adequate guidelines and supervision to ensure that
the use of the power is properly confined and that privacy and civil
liberties are protected.
Although the board has no authority to veto or delay executive branch
actions, executive branch officials are expected to routinely consult
with the board, and the board to routinely review and provide input, on
the development and implementation of policies intended to protect the
Nation a against terrorism; indeed, a suggestion in conference
negotiations that would have limited the board to providing advice only
when requested by the head of an agency was specifically rejected. It
is our intention that the board become an institutionalized voice that
ensures that privacy and civil liberties concerns are always considered
and, where appropriate incorporated, in policy making.
With respect to its oversight role, the board has broad authority to
review and investigate executive branch actions, whether limited to a
single agency or involving interagency policies, to determine whether
the government is appropriately protecting privacy and civil liberties.
To carry out this function effectively, the board has been given
investigative powers similar to those of a government-wide inspector
general. Specifically, the and is to have access to all relevant
documents and materials in the executive branch, including classified
information, and to all relevant federal officials to interview them
and take statements. Departments and agencies, moreover, are required
to cooperate with the board: if the board believes information or
assistance has been unreasonably refused, it is to notify the relevant
agency or department head, who, unless the information cannot lawfully
be provided to the board, is to ensure compliance with the request.
The bill provides an exception to the requirement that an agency
comply with a board request for information only in cases where the DNI
in consultation with the Attorney General, determines that withholding
information from the board is necessary to protect the national
security interests of the United States or where the Attorney General
determines that withholding the information is necessary to protect
ongoing sensitive law enforcement or counterterrorism operations. In
light of the fact that board members must in any event have appropriate
clearances to see classified information, as well as the expected
nature of the board's work, we anticipate that these exceptions will
rarely need to be invoked.
In addition to getting information from the executive branch, the
board may also request information and assistance from State, local and
tribal officials, and it may request documents or testimony from others
outside the executive branch, including private parties who may have
relevant information, such as former federal employees and government
contractors. Although the board does not itself have the authority to
subpoena documents from private parties, if the card is unable to
obtain relevant information from a nongovernmental party, it may refer
the matter to the Attorney General, who may take such action as
appropriate to ensure compliance, including the use of compulsory
process.
I would also like to note that although the board's jurisdiction is
not intended to extend beyond matters related to efforts to protect the
Nation against terrorism--to, for example, claims that the IRS is not
adequately protecting the confidentiality of tax returns--it is our
intent its jurisdiction be interpreted inclusively, to reach, for
example, laws that were originally adopted to protect against
terrorism, but may now have been turned towards other purposes.
Ms. COLLINS. I thank my colleague for his clear explanation. Just as
important to the other authorities provided to the board is ensuring
some transparency of the activities of the board. Transparency helps to
give confidence to the American people that the protection of their
civil liberties and privacy is being addressed as we take actions to
further protect our Nation from terrorism. To that end, the board is to
report to Congress at least annually on its activities, and may do so
more frequently, as would be expected should the board complete an
important investigation or otherwise make findings or recommendations
of which Congress would wish to be apprised. The bill requires that the
board's reports to Congress be unclassified to the greatest extent
possible, in order to facilitate public discussion of the board's
activities; where it is necessary to include classified information in
the reports, it is to be included in a separate classified annex.
Whether and when to release reports directly to the public or to
otherwise engage in activities that directly involve and inform
[[Page S11975]]
the public is left to the discretion of the board, but we believe that
given the public importance of the issues entrusted to the Privacy and
Civil Liberties Oversight Board, openness is called for and will
ultimately foster public trust that the government is appropriately
protecting privacy and civil liberties as it continues to vigorously
fight the war on terror.
Also intended to foster this public trust is the fact that, while the
board is exempted from the requirements of the Federal Advisory
Committee Act because, as a permanent, ongoing entity, it does not fit
comfortably into the mold of the usual subjects of that act, the board
is expressly subject to the Freedom of Information Act, like any other
agency.
Mr. LIEBERMAN. I would also like to point out that the bill
encourages federal departments and agencies involved in law enforcement
and anti-terror functions to designate an agency official to serve as a
privacy and civil liberties officer. Such officers, modeled on similar
officers at the Department of Homeland Security and newly created in
the Office of the DNI, can play an important role in providing day-to-
day advice and insights on civil liberties and privacy matters and
conducting internal reviews. Because such officers would be highly
knowledgeable about their own agencies, they could augment the role of
the board and help address issues early on. The role of such officers
would be distinct from those of the new chief privacy officers created
in the Omnibus Appropriations bill. Those officers would be largely
responsible for focusing on informational privacy issues and not
responsible for addressing broader civil liberties concerns.
Ms. COLLINS. I would like to thank my friend for working with me on
these very important provisions. In the wake of the terrorist attacks
on September 11, 2001, during his joint address to Congress, the
President called on all Americans to ``uphold the values of America and
remember why so many have come here. We're in a fight for our
principles, and our first responsibility is to live by them.'' Indeed,
as we improve government to better secure our Nation against future
attacks, we must at the same time protect those American values that
define our free society. These freedoms and values are what define us
as Americans and what defines our Nation. Since the inception of our
Nation, there has been much sacrifice in order for us to have the
freedoms we enjoy today. These liberties are what have been entrusted
to us to protect. That is why, as we protect our Nation from future
terrorist attacks, we also must ensure that we do no trample on the
very values that the terrorists seek to destroy.
Mr. WYDEN. Mr. President, I wish to commend Senators Collins and
Lieberman for their leadership in working round the clock for months to
translate the key recommendations of the 9/11 Commission into reality.
Thanks to their tireless and bipartisan effort, I and my colleagues
today can point to a provision in the intelligence reform bill that
will clear the fog of unnecessary secrecy that has for too long clouded
our national intelligence picture. As the principal sponsor of this
bipartisan provision, which will establish for the first time an
appeals procedure that members of Congress may use regarding the
classification of materials for national security purposes, I wish to
explain how I envision this new process working.
The power to classify documents as secret is one of the most powerful
tools in American Government, and it seems to be very much in vogue.
Over-classification of documents is now the rule rather than the
exception. Documents are sometimes classified for political reasons
rather than to protect national security interests. Last year alone,
the Federal Government spent $6.5 billion creating 14.3 million new
classified documents. That is double the number of documents 10 years
ago. This awesome power should be used judiciously, and it surely
should not be the subject of old fashioned horse trading, as it was
last summer during the preparation of the Senate Intelligence
Committee's report on pre-Iraq war intelligence.
Last summer the Senate Intelligence Committee, on which I serve with
my co-authors, spent more than 6 weeks arm-wrestling with the Central
Intelligence Agency, CIA, over how much of the report on pre-Iraq war
intelligence would be made public. Originally, the agency wanted to
black out more than half of the report. In the end, ``only 20 percent''
of the report was blacked out.
At that time, there was no independent body to which the committee
members could turn to find out what should and should not be classified
for national security purposes. That is precisely the problem addressed
by the provision crafted by Senators Lott, Bob Graham, Snowe, and
myself. Our provision will give Congress for the first time a means of
appealing classification decisions.
The provision gives Congress the authority to appeal classification
decisions to an independent standing body, the Public Interest
Declassification Board. This Board is made up of nine members with
expertise in national security and related areas; five are appointed by
the President and four by the bipartisan leadership of the Senate and
House. Under the amendments made by section 1102, when any Member of
Congress asks the Board to declassify a document or materials, the
Board ``shall advise the originators of the request in a timely manner
whether the Board intends to conduct such review.''
This means that if I or another Member of the Senate were to ask the
Board to determine whether a document is properly classified for
national security purposes, the Board must respond in a timely manner.
``Timely'' is defined as ``early'' or ``soon.'' It is my expectation
that whether it is a member of Congress or a committee seeking the
Board's decision on the proper classification of information, the Board
will get back to the requester expeditiously.
I am of the view that the problems in our intelligence community will
not be addressed until the problems in the national security
classification system are addressed. Thomas Kean, who chaired the 9/11
Commission, said that three-quarters of the classified material he
reviewed for the Commission should not have been classified in the
first place. Now, as the Senate acts on the conference report that
strongly reflects the 9/11 Commission recommendations, it only makes
sense to include this provision.
I have no illusions that this classification appeals mechanism will
abolish the strongly rooted institutional bias in favor of
overclassification, but taken in conjunction with the overall review of
the standards used to classify information contained in other sections
of the conference report, it is a very sound first step.
I am grateful to Senator Lott, my principal cosponsor, for
championing this matter in conference. He and his staff worked nonstop
to preserve this provision. I also want to acknowledge the efforts of
Senator Bob Graham, another conferee, and his staff to defend our work.
Mr. DOMENICI. Mr. President, I rise to express my support for the
intelligence reform provisions negotiated by the House and Senate.
These measures provide common sense restructuring of our Nation's
approach to national intelligence.
For years the United States has contemplated reorganizing the
intelligence community. Unfortunately, it took the tragedy of September
11 and the loss of nearly 3,000 citizens to achieve systemic change.
This legislation, however, is the culmination of a serious national
debate that has occurred since that fateful day. It is a just tribute
to those we lost, their families and to future generations of Americans
whose security depends on our actions today. I believe this legislation
better prepares us to meet the security challenges of today and I would
like to make note of some important provisions.
First, it creates a National Director of Intelligence who has the
necessary authority to write and execute intelligence budgets. This
critical change will help ensure that resources and personnel can be
moved to areas of priority throughout the intelligence community for
more effective management of intelligence operations and analysis. This
change was strongly endorsed by both the 9/11 Commission and Joint
Inquiry of the House and Senate Intelligence Committees and I believe
it is essential.
Second, it establishes a National Counterterrorism Center. This will
[[Page S11976]]
achieve an integrated approach to counterterrorism intelligence and
strategic operational planning. Given the continuing threat the United
States faces from international terrorists, it is vital that we
organize our information and resources in a highly coordinated fashion
to meet this challenge. The NCTC provides the proper mechanism to
facilitate this coordination by gathering relevant information from all
appropriate departments and agencies within our government.
In addition to these primary reforms provisions, I am pleased the
conference report includes two other provisions of importance to New
Mexico. By retaining my language directing the Department of Homeland
Security to report on development of an Unmanned Aerial Vehicle border
surveillance capability, this legislation recognizes the need to
exploit emerging technologies for securing the homeland. The porous
nature of our borders, particularly in remote areas of the Southwest,
is vulnerable to terrorists, drug smugglers and other criminal
activity. My language begins to seek new solutions to this significant
security concern. Also, I am gratified that the conferees recognized
the value of the National Infrastructure Simulation and Analysis Center
operated by our national laboratories as Sandia and Los Alamos. The
formal relationship this legislation creates between NISAC and the
National Director of Intelligence ensures the intelligence community
has access to the very best capability our Nation has for understanding
vulnerabilities to critical infrastructures.
In conclusion, I believe this legislation is historic. Nothing is
more important than the security of our country and intelligence is the
underpinning of success in the war on terror. Objective, timely,
accurate intelligence is what our policymakers need to make the right
decisions affecting the safety of Americans at home and abroad. This
legislation takes an important step toward invigorating our
intelligence gathering as we face the threats of the 21st century and
it has my strong support.
Mr. AKAKA. Mr. President, I rise today to express my support for the
conference report on legislation creating a Director of National
Intelligence. Before doing so, I commend the tremendous effort made by
Senator Susan Collins, the chairman of the Governmental Affairs
Committee, and Senator Joe Lieberman, the ranking member, who have
dedicated the last few months to ensuring this legislation was passed.
I salute them.
Passage of this legislation ensures that many of the key
recommendations of the 9/11 Commission become law. Most important of
these are the establishment of a Director of National Intelligence,
DNI, and a National counterterrorism Center, NCTC.
However, much still remains to be done. I continue to believe that
the key to a stronger America lies not just in clarifying institutional
lines of authority but in ensuring that we have the best and brightest
on the front lines of our national defense.
One of the important objectives driven home by the 9/11 Commission's
report and in testimony before the Governmental Affairs Committee is
the need to have the right people in the right places in our
Government, both civilian employees and military personnel, to combat
future threats. We must ensure that our Federal workforce remains
trained and ready to respond to the challenges we may face in the
future, just as Federal employees have responded with courage when
called upon in the past.
There is a human capital crisis in the Federal Government. Not only
are we losing decades of talent as civil servants retire, we are not
doing enough to develop and nurture the next generation of public
servants. Nowhere is this more evident than in our intelligence
services. Time and time again senior officials note the lack of trained
linguists, the lack of trained analysts to evaluate information, and
the lack of scientific technical expertise needed to confront these new
threats.
Staffing new interagency intelligence operations centers on a 24/7
basis, developing new human intelligence, HUMINT, operations and
interpreting the information coming into our intelligence analysts pose
management problems of massive proportions. We continue to be seriously
understaffed. I have been calling attention to this problem, along with
my colleague, Senator Voinovich, for a number of years.
Thus, I am pleased that the legislation we vote on today contains
provisions similar to those in S. 589, the Homeland Security Federal
Workforce Act, which I introduced and was passed by the Senate last
November.
The National Intelligence Reform Act mirrors the intent of S. 589 by
establishing a program awarding scholarships to students in exchange
for government service in the intelligence community. I would like to
reiterate that the language in the Governmental Affairs Committee
report relating to this provision and urge the DNI to give special
consideration to applicants seeking degrees in foreign languages,
science, mathematics, or a combination of these subjects.
S. 2845 includes other aspects of S. 589, such as an incentivized
rotational program for employees in the intelligence community in order
to break down cultural and artificial barriers to information sharing,
build a cadre of highly knowledgeable professionals, and ensure
cooperation among national security agencies.
In addition, the conference report includes language offered
by Senator Bob Graham and Senator Richard Durbin, and myself requiring
the Director of National Intelligence to review existing programs to
increase the number of personnel with science, math, and foreign
language skills and report to Congress on the proposals to improve the
education of such individuals if existing programs are found
inadequate.
These programs partially address, however, a larger national problem
in our educational system that must be tackled, including at the
primary and secondary level. I look forward to working with my
colleagues in the next Congress to implement additional programs to
solve the human capital crisis in our national security community as
well as elsewhere in the government.
In addition, I am pleased that the legislation includes language
creating an Office of Geospatial Management in the Department of
Homeland Security, which was added to S. 2845, the Senate version of
the bill, through an amendment offered by Senator Allard and myself.
This language is identical to S. 1230, the Homeland Security Geographic
Information Act. It will help to better coordinate the procurement and
management of geospatial information within the Department of Homeland
Security and centralize activities within one office. Geospatial
information has become a critical component in both assisting our war
fighters and in protecting our homeland.
However, I would be remiss not to mention areas that are not included
in the legislation.
I regret that the conference report did not include a Senate
amendment I sponsored with Senator Fitzgerald to create a chief
financial officer, CFO, within the Office of the Director of National
Intelligence. Our amendment would have placed the NIA under the Chief
Financial Officers Act of 1990, which requires agencies to submit
audited financial statements and requires that CFOs be appointed by the
President, confirmed by the Senate, and report directly to an agency's
head. This amendment is similar to legislation Senator Fitzgerald and I
sponsored now Public Law 108-330--which brings the Department of
Homeland Security, DHS, under the CFO Act and ensures a Senate-
confirmed CFO who reports directly to the Director of DHS. I plan to
introduce legislation that embodies our amendment because I strongly
believe that this new entity must have the financial management systems
and practices in place to provide meaningful and timely information
needed for effective and efficient management decisionmaking.
It would be naive to say that this legislation by itself will make
America stronger. Americans will make America stronger. What this
legislation does offer is a framework within which we can build a more
secure nation if we all work together within the limits of our
Constitution.
In creating a Director of National Intelligence it is critical that
the President pledge to make this office accountable to the American
people. The DNI must be kept free of political pressures and
independent of partisan policy agendas. While employees working
[[Page S11977]]
under the DNI will have the same rights and protections as those at the
CIA, I urge the DNI to make every effort to ensure that whistleblowers
are not retaliated against and that their disclosures, which may have a
significant impact on the security of this nation, are taken seriously.
The DNI must make civil liberties and privacy rights a capstone in
the structure of this new agency. Without these basic protections, our
freedoms will not be strengthened, our Nation will not be more secure.
I pledge to do all I can to exercise my responsibility to oversee
this new intelligence agency and ensure it lives up to the trust being
placed in it by the Congress today.
Mr. CONRAD. Mr. President, I will join many of my colleagues today in
voting for the Intelligence Reform bill; however, I do so with some
reservations.
First, let me highlight the provisions contained in this bill that
are especially important to North Dakota. The bill includes a proposal
I authored that would establish a pilot project on the Northern border
to enhance security through the use of advanced technologies like
remote sensors, cameras, and unmanned aerial vehicles. The bipartisan
9/11 Commission Report recognized that the Northern border operates
with only a fraction of the manpower and resources that are devoted to
the Southern border, but poses no less risk for terrorists sneaking
across into the United States. This project will help the border patrol
in monitoring the border more effectively and efficiently.
Additionally, I am pleased that the bill includes a provision directing
that at least 20 percent of any increase in the number of Border Patrol
agents be assigned to the northern border. Both of these provisions
take a step in the right direction to improve the security of our
northern border.
In considering intelligence reform, I embraced the recommendations of
the 9/11 Commission. They made a major effort to understand what
happened on September 11, 2001, and to figure out how we could help
prevent future attacks. This legislation never would have passed
without their hard work. By adopting one of the key recommendations of
the 9/11 Commission, this bill takes a major step toward improving our
Counter-terrorism efforts. Establishing a National Counterterrorism
Center that can both analyze the terrorist threat and do strategic
planning for operations to defeat terrorists will make us safer.
This bill would never have become law without the commitment of the
families of the victims of the 9/11 attacks. They demanded real reform,
without any further delay. We in Congress owed those families no less.
Some of my colleagues today have said that this bill is the largest
reform of our national security agencies since 1947. The provisions I
have just mentioned are important reforms. Nevertheless, I remain
concerned that creating a new Director of National Intelligence will
not do enough. It still leaves too many participants with an
opportunity to fail to communicate and cooperate.
No one can argue against the basic rationale for creating a Director
of National Intelligence. The American intelligence community has
suffered from a lack of coordination and communication, as the 9/11
Commission and many other reports have outlined. This lack of
coordination and communication comes in part from the absence of any
one person in charge and, ultimately, accountable for the accuracy and
timeliness of our intelligence. I strongly agree that we need a
National Intelligence Director. But such a Director cannot improve the
communication and coordination between the intelligence agencies
without the full authority and resources necessary to do the job.
The concern I have with this final bill is that we have maintained
the CIA and all of the other intelligence agencies we had before, and
added a National Intelligence Director on top. Instead of consolidating
the various intelligence agencies, we have created additional boxes on
an organizational chart that I fear will only create more turf battles,
thereby undermining our ability to enhance and improve our intelligence
capabilities. I was concerned about this issue in the Senate's
intelligence reform bill. The final bill has an even weaker Director of
National Intelligence. That makes me even more concerned.
In my view, this bill simply does not provide the National
Intelligence Director with all of the tools he needs to do the job. He
will have only a very limited power to move money among the different
intelligence agencies. Without strong control over the money, the
Director could become just another layer of bureaucratic review.
If that was the end of the story, I probably would have to vote
against this bill. But I see this bill as a step in the right
direction. Its authors have assured me this is a beginning. In the end,
the success of the Director of National Intelligence depends on the
President creating procedures that place that official at the heart of
the intelligence community, with real authority and real
accountability. I am counting on President Bush to do so.
Ms. MIKULSKI. Mr. President, I rise in support of the National
Security Intelligence Reform Act.
I am proud to cast my vote in favor of the first major reform of the
intelligence community. Intelligence reform will make our Nation safer
and stronger, and ensure we use our resources smarter. We have created
a framework that works to prevent a predatory attack on the United
States, supports our troops, and provides good intelligence to
policymakers so we can guard and guide the Nation.
I am excited that we are going to pass such fundamental reform of our
intelligence agencies. I have been fighting for intelligence reform for
years. It is overdue and greatly needed. Now is the time.
This is a very good and important bill. This bill will make the
American people safer by reforming our intelligence community for the
21st Century, by improving protection of our homeland, and by unifying
and strengthening our efforts to combat terrorism.
The reforms will help prevent another 9/11 attack and help ensure we
never go to war again on dated and dubious information. These reforms
will make highest and best use of the talent in our intelligence
agencies, who will have a framework to be able to protect the Nation
and speak truth to power.
I have fought for reform of our intelligence community for years. I
have been a member of the Intelligence Committee since before 9/11 to
be an advocate for reform, particularly regarding signals intelligence.
Since I joined the intelligence committee we have also investigated
two serious intelligence failures:
Why couldn't we prevent the 9/11 attacks on America?
Why did we think Saddam Hussein had weapons of mass destruction?
The House and Senate intelligence committees had a joint inquiry into
intelligence relating to 9/11. We found insufficient information,
missed opportunities, and failures to share information. So many
talented and highly skilled people in our intelligence community worked
so hard and so effectively, but our intelligence agencies did not serve
them or us well.
These investigations convinced me that our intelligence agencies
needed fundamental reforms. I recommended the creation of a Director of
National Intelligence to unify and lead the intelligence community and
many other important intelligence reforms. I am pleased that many of
the reforms I have been advocating are part of this bill.
The National Security Intelligence Reform Act also builds on the work
of the 9/11 Commission. I want to thank Senator Collins and Senator
Lieberman for their work on this bill in Committee, in the Senate, and
holding the line in conference with the House. The result is broad,
deep and authentic reform.
The bill gives the intelligence community one leader, a Director of
National Intelligence, with real authority over the National
Intelligence Program budget and personnel, to manage and unify and
oversee the intelligence community.
The bill creates a National Counterterrorism Center to unify our
Nation's intelligence information and planning to fight terrorism more
effectively.
The bill creates a National Counterproliferation Center to provide
the same unity of effort and effectiveness in the effort to prevent the
spread of weapons of mass destruction.
[[Page S11978]]
The bill provides for diversity of opinion in intelligence analysis
and protects the independence of analysis from policy and political
pressures, by using red-teaming to test assumptions and avoiding group-
think by ensuring that alternative views are presented to policy-
makers.
The bill requires better sharing of intelligence information, both
within the intelligence community and with first responders in our
States and communities who have a need to know.
The bill provides protections for the rights of Americans by creating
a Privacy and Civil Liberties Oversight Board and making officials in
each agency responsible for protecting civil liberties and privacy
rights.
The bill will also unify and streamline the standards for granting
security clearances and require that a clearance granted by one agency
is accepted by other agencies.
This bill goes beyond intelligence reform to address many of the
other 9/11 Commission recommendations: to improve aviation security,
including air cargo inspections, to improve maritime security, to
strengthen border enforcement, and to strengthen criminal laws on
terrorism, building weapons of mass destruction, and financing
terrorist groups.
I have been fighting for many of these reforms and am very pleased
that this bill includes them. They are going to make America safer,
stronger and smarter.
This is not a perfect bill; no bill is. There are some provisions in
this bill that raise questions or concerns. You can count on me to be
vigorous and rigorous in oversight, to make sure we have real reform to
protect America and protect the freedoms that America stands for.
Thanks to the dedication, commitment and persistence of the 9/11
families and the Congress, we had an independent commission to
investigate 9/11. The 9/11 Commission brought into the sunshine what
many of us knew from our classified hearings. The 9/11 Commission
report was not just riveting reading--it was a good blueprint for
intelligence reform. Senators Collins and Lieberman picked up that
blueprint and ran with it. The Senate produced a bipartisan bill that
is a shining example of what can be done around here when we work
together, not as blue State Democrats, not as red State Republicans,
but as Americans--as members of the red, white and blue party, working
together for America and the American people. As a proud member of the
red, white and blue party, I enthusiastically support the National
Security Intelligence Reform Act.
Mr. REED. Mr. President, I rise to express my support for S. 2845,
the intelligence reform bill.
I first want to commend the 9/11 families who have worked so
tirelessly to ensure that necessary reforms were implemented through
the formation of the 9/11 Commission and the enactment of this bill.
I believe this bill is an important first step toward needed
intelligence reform. As we are all aware, intelligence is the key to
keeping America safe and winning the global war on terrorism. I think
that there are many provisions of this bill which will improve U.S.
intelligence. It creates a Director of National Intelligence who has
personnel and budget authority; establishes an Information Sharing
Environment to facilitate the sharing of terrorism information among
all appropriate Federal, State, local, tribal and private sector
entities; provides for training and education to meet linguistic
requirements; and emphasizes the use of open intelligence, a resource I
believe we have overlooked recently to our detriment.
I am also pleased that this bill establishes a National
Counterproliferation Center since I believe the proliferation of
weapons of mass destruction and the potential for terrorists and rogue
states to obtain these weapons are the greatest threats facing us
today.
In addition, I commend the House and Senate for providing for a
Privacy and Civil Liberties Oversight Board within the Executive Office
of the President that would ensure that privacy and civil liberties
concerns are appropriately considered in the implementation of laws,
regulations, and executive branch policies related to efforts to
protect the Nation against terrorism. While Americans are more willing
to give up some of their privacy after 9/11, necessary intrusions must
be carefully balanced against the rights of U.S. citizens and I believe
the Board will help maintain the balance.
Again, this bill is simply a first step. The United States remains
vulnerable in many areas. I do not believe the bill does enough to
provide for transportation security such as for ports, public
transportation and railroads. In addition, it does not address other
asymmetrical threats such as food safety. Two days ago Secretary of
Health and Human Services Thompson noted how easy it would be to tamper
with and poison our food supply.
Finally, I would like to express my disappointment with the
administration's and Republican congressional leadership's
participation in this undertaking. The administration originally did
not want a 9/11 Commission and its support of this bill was lukewarm at
best. The tragedy of September 11 made it clear that our Nation was not
as secure as it could be and changes needed to be made. It is the duty
of the administration to make those changes as quickly as possible.
September 11 was over 3 years ago and we are just now enacting the
first changes. The process certainly could have proceeded more quicky
if the administration had been more actively engaged throughout the
process.
But we have a bill which is a good first step. I support this bill
and look forward to working with my colleagues on future reforms.
Mr. CHAMBLISS. Mr. President, an enormous amount of time and effort
by the White House, the Congress, the 9/11 Commission, the families of
the victims the 11 September 2001 terrorist attacks, and others have
gotten us here, today, to make a final decision on the Intelligence
Reform and Terrorism Prevention Act of 2004. We owe a debt of gratitude
to all those involved with this process. However, not everyone will
agree, nor should they, with everything contained in, or missing from,
the bill we are about to vote on.
This should not surprise us, since no one individual or group has all
the answers on how best to reform our vast intelligence community. What
we can all agree upon, however, is the dedication and sense of purpose
of everyone in the Congress who has worked on this legislation. The
Members and staffs, from both sides of the aisle, all tried to do what
they thought was best for the future security of the United States and
for that they all deserve our appreciation.
I rise today not simply to commend the hard work of a lot of people,
rather, I want to make the point that today marks the start, and not
the end, of the intelligence reform process. Our work in the Congress
on this issue is not ending today; it is just beginning in earnest.
We were attacked on 11 September 2001 in a vile, unprovoked manner
that employed methods heretofore never used in warfare. Before 11
September, the idea of hijacking civilian airliners, loaded with
innocent people, and using them as guided missiles to destroy landmark
buildings and thousands of non-combatant people was something you would
only find in a book of fiction.
It was difficult to imagine before that attack that a group of people
could be so evil, so focused on destroying innocent lives, and so ready
to kill themselves for some warped sense of their own religion and
their distorted sense of justice.
We can fault our intelligence analysts for not ``connecting the
dots,'' but maybe they had too few ``dots'' to work with and maybe what
they did have didn't seem quite plausible at the time relative to our
own understanding of human nature and how wars have been fought in the
past.
The House Subcommittee on Terrorism and Homeland Security issued the
first report outlining problems within the intelligence community about
our failure to stop the 9/11 attacks. As the chairman of that
subcommittee, I released that report on 17 July 2002. What we
discovered was that the two most egregious intelligence failures
involved human intelligence or HUMINT and the sharing of intelligence,
primarily between the CIA and the FBI.
A dedicated enemy without any constraints on their behavior is a
difficult
[[Page S11979]]
and extremely dangerous foe to defeat. As I said in this Chamber last
July 21, ``. . . there is only one principle to follow on intelligence
reform. Intelligence is our first line of defense against terrorism,
and we must improve the collection capabilities and analysis of
intelligence to protect the security of the United States and its
allies.'' The question we all need to ask ourselves is does this bill
strengthen this principle or not? The answer is a qualified one and
there is much more to do before we can unequivocally say we have done
everything possible on reforming our intelligence community. Let me
mention just six issues that we will need to focus on early in the
109th Congress relative to intelligence reform:
One, once this bill becomes law, the President will be nominating the
first Director of National Intelligence, DNI. This will be one of the
most important decisions of his presidency and, in like manner, the
confirmation of the individual nominated will be one of the most
important responsibilities of this Senate. We need to make sure that
the DNI has the ability, experience, and leadership qualities to
successfully implement the legislation we are voting on today.
Two, the Congress needs to put its primary focus on rebuilding the
most critical aspect of our intelligence collection capability, namely
HUMINT. If we are ever to win the war on terrorism we need to put our
spies inside of al-Qaida and other organizations that mean us harm. We
also need good HUMINT to get a better indication of the threats being
posed by nation states such as North Korea, Iran, and Syria.
Three, in this regard, we need to reshape the culture in the
Directorate of Operations at CIA, which is responsible for managing our
HUMINT activities, from ``risk-avoidance'' to ``risk-taking.'' Porter
Goss has begun this process, but he will need the strong support of the
Congress to institutionalize this new, aggressive culture. It is
because of this very point that I voiced objections to the creation of
a Privacy and Civil Liberties Oversight Board, both in the original
bill passed by the Senate and in the Conference Report. We need to take
more risks in HUMINT and we need to rebuild the morale of our HUMINT
collectors. What kind of message are we sending to our intelligence
agents in the field who are risking their lives to protect us by
creating a board designed to look over their shoulders and, which is
redundant to the President's Board on Safeguarding Americans' Civil
Liberties? This may create a morale problem throughout our intelligence
community that might take years to repair and, I hasten to add, at a
time when we need HUMINT more than ever to protect our citizens.
Four, to help Porter Goss rebuild our HUMINT capabilities and to
raise the importance and priority of HUMINT reform, the Senate Select
Committee on Intelligence, SSCI, should establish in the 109th Congress
a Subcommittee on HUMINT to focus our attention on this critical aspect
of our security. Without a subcommittee structure in the SSCI, I fear
we will not be up to the task of providing in-depth oversight of the
intelligence community, which would be a failure of one of the
Congress' most important constitutional responsibilities.
Five, the span of control for the new DNI that is being created by
this legislation is enormous. In fact, it is almost impossible. This
bill leaves the intelligence community at fifteen members, eight of
which are in the Department of Defense. I had a bipartisan amendment to
S. 2485 that was co-sponsored by my colleague from Nebraska, Senator
Ben Nelson, that would have created a unified command for military
intelligence giving the new DNI a single point of contact for military-
related intelligence requirements and collection capabilities instead
of eight. Collectively, the eight members of the intelligence community
that this bill leaves in the Department of Defense are huge, with tens
of thousands of people and multi-billion dollar budgets. How someone
outside of the Department of Defense, like the DNI, could adequately
and efficiently manage these vast intelligence capabilities by dealing
with eight separate military members is beyond me. Senator Nelson and I
are committed to fix this shortcoming by introducing a bill to create a
four-star command for military intelligence in the 109th Congress.
Six, Chairman Jim Sensenbrenner championed several critical proposals
relative to immigration reform, including improving our asylum laws and
standards for issuing driver's licenses. I regret his proposals are not
in the conference report before us today. We should be committed to
working on legislation to strengthen our immigration laws as soon as
possible.
Yes, our work in the Congress on intelligence reform is just
beginning. Confirming the first DNI, focusing our effort on HUMINT,
shaping a ``risk-taking'' culture among our intelligence officers,
improving our oversight of the intelligence community, creating a four-
star military intelligence command, and strengthening our immigration
laws will assuredly keep the 109th Congress fully focused on
intelligence reform. Today is but the beginning of this effort and this
process.
Ms. LANDRIEU. Mr. President, today, nearly 38 months after the
September 11 attacks on New York City and the Pentagon, the Senate will
pass a bill to make Americans safer at home and abroad. What was broken
before 9/11 must be fixed. S. 2845 is based on the lessons learned from
the National Commission on Terrorist Attacks Upon The United States--
the 9/11 Commission. This legislation is a great step forward to revamp
and strengthen our intelligence community to thwart terror attacks on
Americans in the future.
It has not been an easy task to bring this legislation to the Senate
floor for a vote. Initially, the 9/11 Commission was not to report its
findings to Congress and the American public until after the November
elections. Fortunately, the Commission was permitted to issue its
findings during the summer, which allowed Congress to draft S. 2845 and
act upon nearly all of the 9/11 Commission's 41 recommendations to
reform the intelligence community and improve the public's safety.
Nevertheless, there were roadblocks along the way. Many Members in both
Houses tried to kill this legislation, and it is a major accomplishment
that we will hold a vote today and send this bill to the President this
evening.
Of course, the credit goes to Senators Susan Collins and Joseph
Lieberman, the chairman and ranking member of the Senate Committee on
Governmental Affairs. With great skill, they pushed and pulled in
unison when they needed to keep this legislation afloat. They refused
to let our national security fall prey to those who sought inaction
over action. Additionally, Senator John Warner, the able chairman of
the Armed Services Committee, worked tirelessly to ensure that S. 2845
would preserve the military's chain of command and ensure necessary
intelligence resources would remain available to the military at all
times. As a result of the efforts of these Senators, we will pass a
bipartisan bill that will achieve the goal of centralizing U.S.
intelligence operations while helping intelligence agencies better
coordinate with U.S. military efforts.
Again, the 9/11 Commission found that our Nation was vulnerable to
attacks because we were not properly collecting, analyzing, and acting
upon intelligence. Our domestic intelligence agencies were not talking
with their foreign intelligence counterparts, and federal law
enforcement offices were not working with local law enforcement. And
so, perhaps most importantly, this bill creates a Director of National
Intelligence, DNI, and a National Counterterrorism Center, both of
which will go a long way toward ensuring that our Nation's many
intelligence and military agencies have the oversight, resources and
coordination necessary to protect our borders and our citizens.
This bill will also help improve interagency cooperation by requiring
extensive sharing of intelligence and law enforcement operations among
Federal, State, and local agencies. That alone is a key step toward
better protecting our citizens by ensuring information that could be
vital to our national security makes it to the appropriate level. To
better balance security with citizens' rights, this bill also
establishes a Privacy and Civil Liberties Board to review Federal
policies and practices.
Before I close, I do want to point out a provision that was deleted
in the conference which could have made this bill even stronger. Our
Nation needs a director of national intelligence with the mandate to
provide the President and
[[Page S11980]]
other intelligence consumers with accurate, truthful, and even blunt
intelligence. The DNI should not feel hamstrung to tell the President
and other intelligence consumers what they want to hear; rather, the
DNI must be able to tell them what they need to hear. The DNI must be
independent and unsusceptible to the political whims of his/her
superiors. S. 2845 does not go as far as I would like to ensure that
there will be no politicization of the gathering and analysis of
intelligence. The original Senate bill contained safeguards to ensure
intelligence would not be politicized. I am hopeful the DNI will not
feel pressured to validate certain political or policy points of views
where the intelligence simply cannot provide such validation.
While I hope we can revisit this issue in the 109th Congress, this
bill is a success. It will benefit the American people greatly, and I
look forward to its passage.
Mr. KOHL. Mr. President, I am pleased that in one of the final acts
of this Congress we have overcome the objections of the House
leadership to pass a major intelligence reform bill. The 9/11
Commission report provided a unique opportunity for Congress to act. If
we had allowed this moment to pass and we had not succeeded in enacting
the Commission's reforms, it is unlikely that we would ever achieve
effective intelligence reform, leaving us right where we started--with
a fragmented counterterrorism infrastructure struggling to keep up with
the terrorist threats of tomorrow.
The legislation before us creates a Director of National Intelligence
who will have broad authority over the many elements of our
intelligence community. While many of us were confident that the Senate
bill did not jeopardize the chain of command, language was added to
ensure that the military would have access to the intelligence it
needs.
In addition to creating a National Counterterrorism Center to
coordinate counterterrorism intelligence and missions, the bill
includes important provisions strengthening FBI intelligence
capabilities, transportation security, border protection, and
diplomatic and military efforts in the war on terrorism. We cannot rely
on intelligence alone to prevent the catastrophic terrorist attacks of
the future. We must remain vigilant in all these areas.
Finally, I want to applaud the diligence of our colleagues and the
members of the 9/11 Commission who pressed on when it seemed that this
bill was doomed to die. While I have no illusions that this bill will
suddenly make us invincible, it is critical that we begin the difficult
process of realigning the way our government anticipates and responds
to terrorism. That is why I intend to support this bipartisan
legislation.
Mr. VOINOVICH. Mr. President, I rise to support the Intelligence
Reform and Terrorism Prevention Act of 2004. I first must recognize and
congratulate the extraordinary hard work and leadership of Senator
Collins and Senator Lieberman and their respective staffs. It is only
because of their determination and tireless efforts that we are able to
consider this legislation today. I would also thank and recognize
Representatives Hoekstra and Harman and their staffs for their hard
work. On balance, this legislation is an important step in improving
our national security.
This legislation establishes a Director of National Intelligence with
greater budget authority than the current Director of Central
Intelligence to provide leadership and direction to the 15 agencies of
the Intelligence Community.
It also establishes a National Counterterrorism Center to conduct
analysis of terrorism-related intelligence and conduct strategic
planning for the War on Terror.
To ensure that the civil liberties of Americans are protected during
this time of justifiably increased government powers, the legislation
also establishes a Privacy and Civil Liberties Oversight Board within
the Executive Office of the President.
All of these provisions were key recommendations of the 9/11
Commission, and I am pleased that they are included in this
legislation.
I am also pleased that the legislation we are considering includes
three provisions that I have sponsored.
The bill reforms the broken process of granting security clearances.
The extended length of time it has taken to conduct and subsequently
adjudicate a security clearance prevents qualified Federal employees
and their private sector partners from doing important work to enhance
our national security. In addition, a lack of reciprocity among
agencies for already granted clearances delays and mobility of Federal
employees within the government and places an unnecessary
administrative burden on agencies as they duplicate the clearance
process.
The reforms in this legislation are an important step in expediting
the process, while preserving national security interests. The
President designates a single entity to oversee the security clearance
process and develop uniform standards and policies for access to
classified information. The President also designates a single entity
to conduct clearance investigations. Additional investigative agencies
could be designated if appropriate for national security and efficiency
purpose. Reciprocity among clearances at the same level is required.
The bill also includes a provision I added in Committee to improve
the intelligence capabilities of the Federal Bureau of Investigation.
Specifically, the FBI Director may work with the Office of Personnel
Management to develop new classification standards and pay rates for
intelligence analysts. This will facilitate the development of a robust
national security workforce at the FBI and falls squarely within the
spirit of the 9/11 Commission recommendations. It is my sincere hope
that the FBI will utilize these flexibilitie4s to build an elite cadre
of intelligence analysts that will help win the War on Terror.
Finally, this legislation attempts to reform the Presidential
appointments process, which has been broken for decades. An amendment I
offered on the Senate floor would require the Office of Government
Ethics to submit a report to Congress evaluating the financial
disclosure process for executive branch employees within 90 days of the
date of enactment. It would require the Office of Personnel Management
to submit a list of presidentially appointed positions to each major
party candidate after his or her nomination. It would require the
Office of Government Ethics, in consultation with the Attorney General,
to report to Congress on the conflict of interest laws relating to
Federal employment. The provision would also require each agency to
submit a plan to the President and Congress that includes
recommendations on reducing the number of positions requiring Senate
confirmation. I hope that we are able to take definitive action to
reform the appointments process in the 109th Congress and finally
reform a process that has been examined by no less than 15 commissions,
including the 9/11 panel.
I would like to offer an observation regarding the Office and
Director of National Intelligence which this bill establishes. The
director only will be successful if an individual is chosen who can
develop a strong working relationship with the President. In other
words, the DNI can be successful with the powers provided by Congress
if this individual has the confidence and trust of the President. If
not, then no amount of authority granted to that individual by Congress
will make a difference.
Similarly, the Office of the Director will have to be staffed by the
best and brightest minds in the Intelligence Community if it is going
to be successful in managing and improving U.S. intelligence efforts. I
hope that our Intelligence Community agencies will work closely with
the DNI, his staff, and the new intelligence centers to ensure their
effectiveness and enhance the security of the United States.
The passage of this legislation also places a new burden on Congress.
Every Member of the Senate, but especially the members of the Senate
Select Committee on Intelligence, will need to be involved in ensuring
that this legislation is implemented effectively. Robust congressional
oversight of intelligence is vital, and we here in this chamber are not
off the hook just because we have passed this bill.
Finally, I want to inform my colleagues that while we have
demonstrated our willingness to reform the
[[Page S11981]]
structures and processes of the executive branch to better protect our
Nation, we have been less willing to reform our own structures and
procedures. The 9/11 Commission recognized that changing congressional
committee jurisdiction is exceptionally difficult but also noted
reforms of the executive branch ``will not work if congressional
oversight does not change too.'' They recommended that the Senate and
House each establish a single authorizing committee for the Department
of Homeland Security.
I remain deeply disappointed that the Senate did not do this in
October. Rather, Senate Resolution 445 maintains authorizing
jurisdiction over significant elements of DHS with at least three
different committees. The inappropriately renamed Committee on Homeland
Security and Governmental Affairs will have jurisdiction over less than
10 percent of the DHS workforce and less than 40 percent of its budget.
Let me repeat that. We didn't even give the proposed Homeland Security
Committee the jurisdiction over either the majority of the budget or
the personnel of the department.
It is disappointing that the Senate was unable to put aside turf
considerations and adopt meaningful reform of its committee structure.
Shame on us for not doing better. I intend to raise this issue again
when Congress reconvenes in January and hope that my colleagues will
join me in that effort.
Once again, I would like to thank Senators Collins and Lieberman and
their staff for all their hard work on this legislation. I hope they
are proud of their efforts.
I yield the floor.
Ms. SNOWE. Mr. President, I rise to support the conference report to
accompany the intelligence reform legislation before us today.
First and foremost, I want to recognize and thank my colleague, the
Senator from Maine and chair of the Governmental Affairs Committee, Ms.
Collins, for her exceptional and tireless work throughout the past
several months to produce this comprehensive to reform to our nation's
intelligence community. I applaud her for undertaking this historic
effort and for guiding this legislation through her committee and
through the conference with the House of Representatives on a
bipartisan basis.
As well, I want to express my appreciation to the ranking member,
Senator Lieberman, for his efforts in bringing us to this day. It truly
was an enormous undertaking that was assigned to the Governmental
Affairs Committee, and I want to thank them for all they have done on
this intelligence reform legislation.
Intelligence community reform is not a new issue. Since the First
Hoover Commission in 1949, studies have been conducted, commissions
have been established, and reports have been issued on how best to
structure and reform our Intelligence Community.
Despite over 50 years of debate on the issue, it was the morning of
September 11, 2001, and all that followed thereafter that provided the
major impetus to get us where we are today, on the floor of the U.S.
Senate passing legislation to finally address what has eluded so many
for so long.
To say that September 11 is a seminal moment for our nation is an
understatement. That day forever changed the way we view the world. It
was that day, more than any one before, that proved that we have
entered a new era where our nation faces very different, more pervasive
and inimical threats.
It was a day, more than any before, which proved that intelligence is
now and must always be our best, first line of defense against a
committed enemy who knows no borders, wears no uniform and pledges
allegiance only to causes and not states.
It was a day that has proven that the intelligence community's old
structure and old ways of doing business are insufficient for
confronting the challenges of the twenty-first century.
As a member of the Senate Select Committee on Intelligence, my
position on intelligence community reform has been steady and
consistent--I was an early supporter of comprehensive reform and came
to believe that a new Director of National Intelligence was vital in
order to address the deficiencies and failures that became evident to
us as a Congress and as a nation. The work of the Senate Select
Committee on Intelligence over the past 2 years in undertaking a
thorough review of the pre-war intelligence on Iraq's weapons of mass
destruction programs, the regime's ties to terrorism, Saddam Hussein's
human rights abuses and his regime's impact on regional stability
allowed me to delve into those failures and ask pointed questions about
the methods and organization of the community.
After the in-depth analysis of 30,000 pages of intelligence
assessments and source reporting, and the interview of more than 200
individuals, the committee produced a report in July, 2004 that
indisputably begged for intelligence community reform.
I joined several of my colleagues, most notably, Senator Feinstein,
on legislation overhauling the community and championing the idea of
establishing a position, to be filled by single person, independent
from the day to day responsibilities of running a single intelligence
agency, and whose sole responsibility is to lead and manage the
intelligence community. The Feinstein legislation, I believe, was a
catalyst from which to begin this reform and I am proud to have been
associated with it. Senator Feinstein's early and steadfast work on
this issue was crucial and I commend her for her dedication and vision.
The conference report we have before us today is not perfect. It is
not, in my mind, an ideal solution. There are holes--some glaring--that
I believe should be filled. But the fact that we are on the precipice
of passing such a landmark package is indeed impressive. This bill is a
product of compromise and again, I want to thank my Senate colleagues,
led by Senators Collins and Lieberman, who served on the conference
committee that produced this bill.
Mr. President, issues of accountability have often been central to
the work we as Senators do in seeking to bring better government to our
constituents--particularly when matters of national security are at
stake.
In that vein, Mr. President, before the release of the 9/11
Commission report earlier this year, I introduced stand-alone
legislation--cosponsored by Senator Mikulski creating an Inspector
General for Intelligence. The ``Intelligence Community Accountability
Act of 2004'' proposed an independent inspector general for the entire
intelligence community--all fifteen agencies and department members. I
introduced this legislation largely as a result of my experience as a
member of the Senate Intelligence Committee and the revelations of the
investigation on the pre-war intelligence of Iraq.
The version of the reform bill adopted by the Senate in October
embraced the concept and spirit of my earlier bill and included
language creating an Inspector General for the Director of National
Intelligence.
I was disappointed to learn that much of the language included in the
Senate-passed version of the bill was not ultimately included in the
final package before us today. The conference agreement gives the DNI
the authority to establish an IG according to the guidelines set forth
in the Inspector General Act of 1978. Unfortunately, the conference
agreement does not mandate that he establish an IG.
I want to make clear my intentions to continue working for better and
more comprehensive accountability in our intelligence community. It is
my view that the scaling back of the Inspector General provision in
this bill flies in the face of the 521 page report that followed the
Intelligence Committee's investigation on Iraq pre-war intelligence and
ignores vital problems of information sharing that have been found
throughout the community.
My strong preference would be to codify and explicitly define
expanded authorities for the DNI's inspector general rather than simply
give the DNI the authority to create an IG on his/her own. While I am
pleased that the conference agreement does retain DNI inspector general
language in spirit, I am dismayed that it is not stronger.
I firmly believe that a community-wide IG should have the authorities
to delve into the coordination and communication between and among the
various entities of the intelligence community.
An inspector general will help to enhance the authorities of the
National
[[Page S11982]]
Intelligence Director that we will shortly create, assisting this
person in instituting better management accountability, and helping
him/her to resolve problems within the intelligence community
systematically.
Ideally, the inspector general for intelligence should have the
ability to investigate current issues within the intelligence
community, not just conduct ``lessons learned'' studies. The IG should
have the abilities to seek to identify problem areas and identify the
most efficient and effective business practices required to ensure that
critical deficiencies can be addressed before it is too late, before we
have another intelligence failure, before lives are lost.
In short, an inspector general for intelligence that can look across
the entire intelligence community will help improve management,
coordination, cooperation and information sharing among the
intelligence agencies. A strong, effective IG will help break down the
barriers that have perpetuated the parochial, stove-pipe approaches to
intelligence community management and operations.
Too many incidents of failure to prevent attacks, failure to properly
collect the needed intelligence, failure to adequately analyze that
intelligence and failure to share information within the community beg
for better accountability in the entirety of the community. Who better
to do this than a single IG, who can reach across the community, work
with the existing individual agency IG's, and confront any problem with
a macro, overarching view? This remains an issue on which I look
forward to further working with my colleagues in the very near future.
As I stated earlier, members of the Senate Select Committee on
Intelligence have spent a great deal of the past year looking at the
intelligence available to national policymakers in the run-up to
military action in Iraq. One of the major conclusions we drew was that
the intelligence community suffered from a collective presumption that
Iraq had an active and growing weapons of mass destruction program and
that this ``group think'' dynamic led intelligence community analysts,
collectors and managers to both interpret ambiguous evidence as
conclusively indicative of a WMD program as well as ignore or minimize
evidence that Iraq did not have active and expanding weapons of mass
destruction programs.
From our review, we know the intelligence community relied on sources
that supported its predetermined ideas, and we also know that there was
no alternative analysis or ``red teaming'' performed on such a critical
issue, allowing assessments to go unchallenged. This loss of
objectivity or unbiased approach to intelligence collection and
analysis led to erroneous assumptions about Iraq's WMD program.
For this reason, I believed that was vital that we use this
opportunity to reform the intelligence community to ensure that the new
National Intelligence Director was given the tools and the authority to
ensure that alternative analysis becomes a key component in the
development of national intelligence products. To that end, I offered
amendment during the Senate debate that called on the Director of
National Intelligence to establish, as he sees fit, alternative
analysis units within our analysis agencies.
I am pleased the conferees elected to retain provisions within the
bill that require the Director of National Intelligence to establish a
process for ensuring that elements of the intelligence community
conduct alternative analysis of their intelligence products. National
policy makers must be confident that the underlying assumptions and
judgements of any analysis have been tested and found valid before
making decisions that affect our national security.
Another key failure the committee uncovered was in the production of
a comprehensive and coordinated intelligence community assessment of
Iraq's WMD programs. In fact, a National Intelligence Estimate on
Iraq's weapons of mass destruction programs was not written until
Congress requested that one be drafted in September 2002, in the midst
of the debate about taking military action against Iraq.
We received the NIE just 2 weeks before we voted to authorize the
President to take action in Iraq. The intelligence community should
have been more aggressive in identifying Iraq as an issue that
warranted the production of a National Intelligence Estimate and should
have initiated the production of such an estimate prior to the request
from Congress.
For this reason, I offered an amendment that would have required the
examination of the process by which the NIE's are initiated, developed,
coordinated and disseminated to national decision makers. I believe we
must develop methods to ensure that NIE's are linked to priorities
outlined by the President and Director of National Intelligence and not
simply developed in an ad hoc fashion.
It is unacceptable that just weeks before Congress considered the
weightiest matter that will ever come before us--the decision to commit
our young men and women to war--the intelligence community only first
began working on an intelligence estimate on what they would face. We
must do better than that. We must have the foresight to know what
threats face us in the future and the ability to develop and report
accurate and timely national intelligence estimates.
I am disappointed that the final bill passed out of conference did
not include provisions for streamlining the development of our National
Intelligence Estimate and I will continue to work toward improving that
process.
During the year, we in the committee heard testimony that indicated
that the effectiveness and interagency coordination within the
Terrorism Threat Integration Center left much to be desired so I am
vitally interested in what structures work best for integrating the
vast intelligence collection, analysis and dissemination efforts
necessary to counter the international threat of terrorism. Coupled
with the 9/11 Commission's recommendation that a series of such centers
be established, I believed it was time that we took the time to
understand what worked well in such centers and what didn't. Therefore
I amended the Senate bill to require an evaluation of the effectiveness
of the NCTC at the end of one year. That evaluation would have included
an assessment of whether the NCTC is accomplishing their mission, the
state of interagency relations, problems or issues relating to
personnel assignments, funding, and so forth.
Unfortunately, with this bill, will not have the opportunity to
understand whether the NCTC construct is the best way to approach other
threats facing the nation. My concern has been amplified by the merging
of the TTIC into the NCTC and the establishment of a National Counter
Proliferation Center in this bill. Congress will need to closely
monitor the effectiveness of such centers to ensure that they provide
the nation with the agility and flexibility we must have to counter the
21st century threats.
The legislation before us today addresses another key issue: the
continuing vulnerability of our transportation system. Obviously,
failures in transportation security were paramount in the September 11
attacks. As the 9/11 Commission report states, the 9/11 terrorists were
``19 for 19'' in penetrating our shortcomings. To be sure, we can never
secure our entire transportation system 100 percent. But, given the
consequences of a failure to secure the system, that doesn't mean we
should not expend 100 percent of our effort in trying.
First, the conference report implements the central 9/11 Commission
recommendation with respect to transportation security by requiring
that the Secretary of Homeland Security develop and implement a
national, overarching strategy for transportation security. Timely
development of this strategy is critical so that we are able to
understand what needs to be done, what we need to do to get there, and
to fill the gaping holes in our homeland security system as quickly as
possible.
This bill also addresses the issue of air cargo security, which in my
view is currently a gaping hole in our homeland security net--
particularly when you consider that half of the hull of each passenger
flight is typically filled with cargo. As Governor Kean, Chair of the
9/11 Commission, put it, quite simply, before the Senate Commerce
Committee this summer, ``The Transportation Security Administration
must improve its efforts to identify and physically screen cargo.''
[[Page S11983]]
The bill before us today would help TSA to do just that by
incorporating an amendment written by Senator Rockefeller, which I
cosponsored, authorizing $600 million to enhance security on both all-
cargo and passenger aircraft. The conference report also requires TSA
to develop better technologies for air cargo security, authorizes
funding for equipment and research and development and to create a
pilot program to evaluate the use of currently available and next
generation blast-resistant containers.
Overall, with respect to transportation security, I believe that the
comprehensive, bipartisan bill before us today will give TSA the tools
it needs to carry out his critical piece of the homeland security
puzzle--securing our air transportation system.
I have addressed some of the issues that were central to my work on
this matter and shared many of my concerns with this conference
agreement package. It is critical, however, that I also express my deep
sense of satisfaction that we are here today, ready to pass this bill
and send it to the President's desk.
We have come a long way this year. And while it is not a perfect
product, this legislation is still one the American people can be proud
of. As of last week, we were not even sure this accomplishment would be
attributed to the 108th Congress or if we would begin anew next year
with the 109th. This legislation builds on the recommendations of the
9/11 Commission and also addresses the views of many other studies and
related commissions which focused on protecting the United States.
Mr. President, on September 7, 2004, I had the opportunity to
question members of the 9/11 Commission during a SSCI hearing and in
response to my question about how much we needed to accomplish in this
round of reform, former Secretary of the Navy John Lehman reminded us
that in the 1947 National Security Act, there were at least three major
fine-tunings in the subsequent years.
He told us that the basic framework was passed as one package, but it
was recognized there was more needed to be done or refining what was
done in the original act. He said that if we could get the framework
passed, then the flesh can be put on the bones further down the road.
He specifically mentioned that some things such as how many of the
national intelligence centers we should establish could wait until the
DNI got his feet on the ground but that our primary focus should be to
put the framework in place now.
I agree with Secretary Lehman and that is why I will support passage
of this bill even while believing we have much work left ahead before
we have successfully transformed our intelligence apparatus, in the
executive branch and the legislative branch, into an organization that
is fully equipped to meet the challenges and threats this Nation will
face in the future.
Mrs. BOXER. Mr. President, I am pleased to have this opportunity to
vote in support of the Intelligence Reform and Terrorism Prevention
Act. Passage of this conference report today is an important step
forward in defending our country against the new threats that face us.
While I expect that the overwhelming majority of the Senate will vote
in favor of the conference report today, it has not been an easy road
to this point. The Bush administration fought tooth and nail against
creating an independent commission to investigate the Government's
failings leading to the tragic day of September 11, 2001. And, once the
9/11 Commission was established, the President's record of cooperation
was spotty, at best. But largely because of the brave efforts and
persistence of those families who lost loved ones on 9/11, these
obstacles were overcome and the important recommendations made by the
bipartisan 9/11 Commission will be enacted into law.
The 9/11 Commission, led by co chairs Thomas Kean and Lee Hamilton,
did this country a great service by conducting a thorough investigation
of the events leading up to September 11, 2001. The report issued in
July contained more than 40 important recommendations that will make us
a stronger nation as we work to confront the dangers of global
terrorism. Through the hard work of Senator Collins, Senator Lieberman
and others, these recommendations were incorporated into bipartisan
legislation that easily passed the Senate. And although the House of
Representatives did not take the same bipartisan approach, the final
negotiated conference report is a good bill that will improve our
ability to fight terrorism in several ways.
First, the bill creates a new Director of National Intelligence to
serve as the head of all 15 intelligence agencies and control their
budgets. This person would be accountable to Congress, the President,
and the American people in implementing the National Intelligence
Program.
Second, the bill requires the President to create a new information
sharing environment. The 9/11 Commission found that our ability to
defeat terrorism is severely hampered because government agencies are
resistant to sharing information. This provision will ensure that
information about terrorists is shared not only among Federal agencies,
but also between Federal, State and local agencies.
Third, the bill creates a new National counterterrorism Center to
plan and coordinate counterterrorism missions and a new National
Counterproliferation Center to improve the Government's ability to halt
the proliferation of weapons of mass destruction.
Fourth, the bill increases the number of border guards and
immigration agents while also improving surveillance capabilities along
the southwest border.
Finally, the bill improves security for our aviation system,
including additional funds for Federal air marshals. And while I am
pleased that conferees took note of my concern about protecting the
anonymity of Federal air marshals, I do not believe the final provision
is strong enough.
Clearly, this bill cannot be the last piece of legislation we pass to
make us safer. There is much more work to be done to protect our ports,
our nuclear and chemical plants, and the flying public. Our first
responders need far more attention so they have the interoperable
communications systems they need, and an adequate number of personnel
to protect our streets at all times and for whatever reason. I also
believe that we are moving far too slowly on developing countermeasures
to protect commercial aircraft against the threat of shoulder fired
missiles. I will press hard for action on all of these issues so that
we do not simply return to business as usual.
America will never forget the tragedy that took place on September
11, 2001. We are a changed Nation because of it. The families of those
who lost their lives that day have done tremendous work in fighting for
this bill. That is why I am pleased we are passing this bill today. The
Federal Government must do everything it can to prevent another attack
and today's vote is a step in the right direction.
Mr. FEINGOLD. Mr. President, with a recognition that this bill is
imperfect, and with the firm conviction that this effort is only one
step in a much broader effort needed to get this country on the right
track to effectively defeat the terrorist forces that have attacked
this country, I will vote in favor of the intelligence reform
conference report today.
I have tremendous respect for the 9/11 Commission that made the
recommendations at the heart of this legislation. Their report was not
characterized by an ill-considered rush to simply act, but rather an
imperative to act wisely. It was not colored by partisan biases, or
tainted by self deluding rosy scenarios about where we stand as a
country. I may not agree with every word in the 9/11 Commission's
report, but I strongly agree with the vast majority of it, and I
believe that the Commission performed a tremendous service for the
American people.
Among the most detailed and thoughtful recommendations of the
Commission were those focused on the urgent need for reform of
America's intelligence community. By stressing unified effort, and most
importantly, accountability, the Commission pointed the way toward the
reforms contained in this bill.
This bill puts someone in charge of America's intelligence
community--someone to be appointed by the President and confirmed by
the elected representatives of the American people in
[[Page S11984]]
the Congress. The Director of National Intelligence will be in charge
not simply via title and not only because we reorganized boxes on an
organizational chart. This legislation provides real authorities to the
DNI in terms of allocating resources, establishing tasking priorities,
and ensuring information-sharing to unify our efforts. It is up to the
Director to use the powers granted in this bill to make this community
function--to make sure that the right people have the right resources
and the right priorities, and that they share crucial information with
their colleagues.
And I will add that it is up to the President of the United States
and this Congress to ensure that the lines of authority and the clear
accountability laid out in the language of this legislation come alive.
We must insist on real accountability; we must accept nothing less.
The conference report also establishes, in law, the mandate for the
National Counterterrorism Center to bring an integrated effort to that
urgent priority. If we are ever to connect the disparate dots that can
shed light on the methods, the plans, and the vulnerabilities of fluid,
flexible terrorist networks that operate in the shadows, we must
integrate our own efforts, not as an afterthought, but as a fundamental
organizing principle.
However, I am troubled by some provisions that were added in
conference that have nothing to do with reforming our intelligence
network. The bill includes in section 6001 what has come to be known as
the ``lone wolf'' provision. The lone wolf provision eliminates the
requirement in the Foreign Intelligence Surveillance Act, FISA, that
surveillance or searches be carried out only against persons suspected
of being agents of foreign powers or terrorist organizations. I am very
concerned about the implications of this provision for civil liberties
in this country.
It is important to remember that FISA itself is an exception to
traditional constitutional restraints on criminal investigations,
allowing the government to gather foreign intelligence information
through wiretaps and searches without having probable cause that a
crime has been or is going to be committed. The courts have permitted
the government to proceed with surveillance in this country under
FISA's lesser standard of suspicion because the power is limited to
investigations of foreign powers and their agents. This bill therefore
writes out of the statute a key requirement necessary to the lawfulness
of intrusive surveillance powers that may very well otherwise be
unconstitutional.
By allowing searches or wiretaps under FISA of persons merely
suspected of engaging in or preparing to engage in terrorism, the bill
essentially eliminates the protections of the Fourth Amendment. I voted
against the lone wolf bill when it passed the Senate early in this
Congress. I believe there are better and more constitutional ways to
deal with a situation where evidence of a connection to a foreign
government or terrorist organization is not easily obtained.
Even if section 6001 survives constitutional challenge, it would mean
that non-U.S. persons could have electronic surveillance and searches
authorized against them using the lesser standards of FISA even though
there is no conceivable foreign intelligence aspect to their case. This
provision may very well result in a dramatic increase in the use of
FISA warrants in situations that do not justify such extraordinary
government power.
When the lone wolf provision was considered in the Senate as a stand
alone bill last year, I supported an amendment by Senator Feinstein
that we thought was a reasonable alternative way to make sure that FISA
can be used against a lone wolf terrorist, without eliminating the
important agent of a foreign power requirement. The amendment would
have created a permissive presumption that if there is probable cause
to believe that a non-U.S. person is engaged in or preparing to engage
in international terrorism, the individual can be considered to be an
agent of a foreign power even if the evidence of a connection to a
foreign power is not clear. The use of a permissive presumption rather
than eliminating the foreign power requirement would have maintained
judicial oversight and review on a case by case basis on the question
of whether the target of the surveillance is an agent of a foreign
power. The permissive presumption would permit the FISA judge to
decide, in a given case, if the government has gone too far in
requesting a FISA warrant.
Senator Feinstein's formulation would have put some limit on the
government's ability to use this new power to dramatically extend
FISA's reach. If the government comes to the conclusion that an
individual is truly acting on his or her own, then our criminal laws
concerning when electronic surveillance and searches can be used are
more than sufficient. True lone wolf terrorists can and should be
investigated and prosecuted in our criminal justice system. Section
6001 allows the government to use FISA to obtain a warrant for
surveillance even if it knows that the subject has no connection
whatsoever with a foreign power or a terrorist organization. That is
not right.
I am also very concerned about the material support, section 6601 et
seq., and pre-trial detention, section 6952, provisions contained in
the conference report. Neither of these provisions was considered by
the Senate, or even by the Senate Judiciary Committee. While it appears
that the material support provision adopted by the conference is not as
broad as the provision contained in the House bill, its full
implications cannot possibly be analyzed in the brief time we have to
consider this bill.
The material support provision amends and expands the current crime
of providing material support to terrorists or terrorist organizations.
One federal court, of course, has ruled that a provision of the current
statute is unconstitutional because it criminalizes First Amendment
protected activities. In January, a federal judge in California ruled
that a provision added by the PATRIOT Act criminalizing the provision
of ``expert advice or assistance'' to a terrorist organization was
vague and therefore unconstitutional. The judge found that the term
``expert advice or assistance'' could be interpreted to include
unequivocally pure speech and advocacy protected by the First
Amendment. The judge found that the PATRIOT Act bans all expert advice
and assistance, including providing peacemaking or conflict resolution
advice, and places no limitation on the type of expert advice and
assistance that is banned.
The conference report attempts to cure this constitutional defect in
the law. It states that the law criminalizing providing material
support to a foreign terrorist organization shall not be construed to
abridge rights guaranteed by the First Amendment. The conference report
also allows an exception for providing personnel, training, or expert
advice or assistance that is approved by the Secretary of State and the
Attorney General. But I am not convinced that these provisions cure the
constitutional flaws. And expanding this provision is therefore the
wrong way to go.
Furthermore, as I noted earlier, the material support provision in
the conference report has not been debated and analyzed in the Senate
Judiciary Committee or even on the floor of the Senate when this bill
was considered before the election. The 9/11 Commission strongly
recommended that when determining whether to expand Federal law
enforcement power, the burden is on the executive branch to show how
its proposals would materially enhance security and what steps it will
take to ensure the protection of civil liberties. The executive branch
has not even started to meet that test here. We don't know how this new
provision will work, and what problems might arise because of it. We
haven't had the opportunity to consult with experts and consider
amendments in the normal legislative process. Congress and the American
people deserve a full debate on this issue. Inserting this provision in
the conference report without that debate was a mistake.
Similarly, the pretrial detention provision was not recommended by
the 9/11 Commission, and the administration has never shown how current
law is inadequate. Furthermore, like the material support provision,
this provision did not receive adequate consideration by the Senate. At
the only hearing where this issue was raised this year, the Department
of Justice could not give a single example where current
[[Page S11985]]
law failed and this expanded presumption of pretrial detention was
needed. Current law, which allows for bail to be denied if a defendant
is a flight risk or a danger to the community, is fully adequate to
cover the kinds of terrorism cases where bail should not be granted.
Reasonable bail is a constitutional right. I am very troubled by the
expansion of the presumption that bail will be denied.
Unfortunately, this Justice Department has a record of abusing its
detention powers post-9/11 and of making terrorism allegations that
turn out to have no merit. It is worth noting that the crime of
material support of terrorism, which has been expanded in this bill, is
one of the crimes where a suspect is presumptively denied bail. In sum,
as with the material support provision, the administration has not met
its burden of showing how the expanded pretrial detention provision is
necessary and would not impair constitutional rights and protections.
It has no place in this bill.
This bill is not perfect. Over time, as the new structure begins to
operate, we may find that additional changes are needed. But the
conference report takes critically important steps in the right
direction. I commend Senators Collins and Lieberman for working
tirelessly to ensure that this legislation becomes law this year.
Mr. REID. Mr. President, the United States of America today is the
greatest military force in history. Our men and women in uniform are
second to none. Nobody disputes our military superiority. And yet,
military might alone will not win the war on terror.
Military might alone will not win because our enemies will never meet
us face to face. Instead, they will try to hit us when we aren't
looking. That is why good, solid intelligence is one of our most
important weapons in the war on terror.
Our enemies caught us off guard on September 11, 2001. And even as we
vowed that it must never happen again, we realized that we needed to
make some fundamental changes in our intelligence agencies. The
creation of the
9/11 Commission was a major step toward needed change. There was
initially some political opposition to this Commission, but mainly
because of the unrelenting support of the families of
9/11 victims, we created the Commission.
One of these family members is Denise Keasler of Las Vegas, who lost
her daughter, Karol Keasler, in the twin towers. Karol worked on the
89th floor of the World Trade Center. After the first plane hit the
north tower, she called her mother to tell her that she was OK. Then
the line went dead.
Like many of the people who lost loved ones that day, Denise has
dedicated herself to reforming our intelligence system. And was because
of the dedication of people like her that the
9/11 Commission was created. Once the Commission was in place, its
members rose above partisan politics. They unanimously passed a report
that contained comprehensive recommendations to make our intelligence
better and our country safer. The Senate responded to the Commission's
work and on October 6 overwhelmingly passed a reform bill that enjoyed
the support of the commission and the families.
This conference report also enjoys the strong support of the 9/11
Commission, and the families who lost loved ones. Most important of
all, it enjoys the strong support of the American people. This bill
creates a strong National Intelligence Director and a Counterterrorism
Center, as well as an independent board to protect our civil liberties.
These reforms will make it harder for information to slip through the
cracks of our intelligence system. They will make it easier for our
intelligence officials to connect the dots and see the kind of warnings
that could have prevented the tragic events of 9/11. They will make it
easier to coordinate the efforts of the 15 different agencies that are
responsible for providing the good intelligence we must have to win the
war on terror.
Along with the Congressional reforms we achieved in October, we have
improved our intelligence operations and followed the key
recommendations of the 9/11 Commission.
I appreciate the hard work of the Commission and its co-chairs Tom
Kean and Lee Hamilton, who endorsed this conference report. I
appreciate the House leadership for allowing a vote on this bill,
despite opposition from many members of the majority parry. And of
course our Nation owes a debt of gratitude to Denise Keasler and all
the other Americans who lost loved ones on 9/11, and who fought
tirelessly for these reforms.
Denise said today that she is so glad this bill is passing, because
she doesn't want a single other American to endure the kind f pain that
she has suffered since her daughter was killed on 9/11. That is the
goal we all share. This bill will move us closer to making our country
safer.
Mrs. FEINSTEIN. Mr. President, I today offer my support for the
conference report on the Intelligence Reform and Terrorism Prevention
Act of 2004. Simply put, this legislation represents the first, and
most critical, step towards bringing our national security structure
into the 21st Century.
I begin by offering my thanks, and praise, to Senators Susan Collins
and Joe Lieberman. This bill would never have been done without their
extraordinary work. Their effort combined intellectual distinction and
adherence to the best traditions of the United States Senate. They were
able to construct good, solid law and then build a consensus that
crossed party lines in the midst of an intensely political season.
When we speak of how the Senate should work--with a spirit of
collegiality and mutual respect--we are talking about Senators Collins
and Lieberman, and what they did here to make America safer.
This legislation is particularly important to me, for I have been
working to bring about the essential reform contained in this law--the
creation of Director of National Intelligence to effectively lead the
intelligence community--for a long time.
This work began in 2002, when I introduced the Intelligence Community
Leadership Act, which would have created a Director of National
Intelligence with authority over budget, personnel, and strategy,
similar to what is in the bill before the Senate today.
First, the Senate and House Intelligence Committees joined together
to create the ``Joint Inquiry into the attacks of September 11th,
2001.'' That inquiry carefully examined the intelligence-related
background of the attacks.
The resulting report had, as its very first recommendation, the
creation of a Director of National Intelligence. This recommendation
was unanimously adopted by both the Senate and House Intelligence
Committees.
The following year, the Senate Intelligence Committee examined the
intelligence relating to the assertions that Iraq possessed weapons of
mass destruction.
As we all know, no such weapons were found, despite prewar
intelligence which unambiguously stated that Saddam Hussein both
possessed and intended to use such weapons.
The findings of that report illustrated what the Joint Inquiry had
found the year before: The failures were in part due to flaws in the
intelligence community, most notably the lack of an effective
leadership structure.
Even as the Senate Intelligence Committee was completing its work, so
too was the 9/11 Commission.
Again, their findings were clear. The Commission found that America's
intelligence community needed structural reforms, most important of
which was the creation of a single head of the intelligence community,
with adequate budget, personnel, and statutory authority. Further, that
person could not simultaneously serve as Director of the Central
Intelligence Agency.
In the beginning of this Congress, I reintroduced the original 2002
legislation, and soon I was not alone. Senators Snowe, Lott, Wyden, and
Mikulski joined my effort, along with Senators Rockefeller and Graham,
the current and former Vice Chairman of the Intelligence Committee.
In August of 2004, I wrote with Senators Snowe, Graham, Mikulski and
Wyden to the President asking for his ``support and assistance in
moving forward with legislation to make needed changes to the structure
of our nation's intelligence community.'' I ask unanimous consent that
this letter be printed in the Record immediately following this
statement.
[[Page S11986]]
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mrs. FEINSTEIN. Soon thereafter, Senators Collins and Lieberman were
given the monumental task of moving forward with the project of
intelligence reform. They were certainly the right choice. I provided
my legislation to them, and I am pleased that much of it was included
in their finished product, which in turn forms the basis for the
conference report we are considering today.
Let me now turn to the substance of the law we are about to vote
upon, noting that this legislation is just a first step towards reform.
It is a top-level structural change that is designed to lay the
groundwork for the deep cultural, bureaucratic and operational changes
which are needed throughout the intelligence community. The DNI will
have a big job to do, and this legislation is just the beginning.
As I have noted, the way our intelligence community is structured is
fundamentally flawed. It is unsuited for the 21st century. The old days
of the Soviet Union and Communism are over, replaced by a world of
asymmetric threats, rogue states, and shifting terror organizations.
The most important of these structural failings is related to what
under current law is called the office of the Director of Central
Intelligence, known as the DCI. That title involves two separate, and I
believe incompatible, jobs--head of the intelligence community and head
of the Central Intelligence Agency.
Thus, there is only a nominal head of the intelligence community, who
cannot be effective. This is because of two problems built into its
structure.
The first problem is that the DCI has two basic, incompatible jobs:
Leader of the intelligence community, which includes 15 agencies and
departments, and in that role is the principal intelligence adviser to
the President; and leader of the Central Intelligence Agency, which is
only one of the 15 agencies which make up that big, and sometimes
fractured, community.
These two jobs cannot effectively be held by one person. Each is a
full time job. They require full and undivided attention.
Perhaps worse, they can be in direct conflict, because what is good
for the intelligence community in terms of mission, resources, and
strategy, may not be good for the ``troops'' at the Central
Intelligence Agency.
Secondly, under the current structure, the DCI lacks basic tools
needed to run any large government department--budget, personnel, and
statutory authority.
Today, the DCI nominally administers the nuts and bolts functioning
of the intelligence community, money and people. I say ``nominally''
because the DCI does not really control all that much of that money, or
the people who use that money to run operations, conduct analysis, and
build spy systems.
The solution to this problem is to ensure that the position of
intelligence community director is provided real budget authority, real
personnel authority, and real authority to set strategy and policy, and
this bill does that.
This conference report includes compromises that slightly diminish
these authorities as they were originally conceived in the Senate bill
which overwhelmingly passed in September.
I would have preferred that the DNI have more authority, but I
understand and respect the concerns raised by some, including my friend
and colleague Senator Warner of the Armed Services Committee, that we
could unintentionally harm the uniformed military.
The result is a compromise, and I think we can and should live with
that compromise.
The structure that is set out in the conference report closely tracks
what originally was contained in the 2002 Intelligence Community
Leadership Act: It creates a Director of National Intelligence,
separate from the CIA Director; The DNI is given adequate budget,
personnel and strategic planning authority; The DNI can set priorities
for intelligence collection and analysis, and manage tasking across all
15 agencies.
It also contains some ideas advanced by the 9/11 Commission which I
believe are important. Most important of these is the creation of a
National Counterterrorism Center, which will serve under the DNI when
engaged in intelligence-related matters. It also includes the creation
of a Directorate of Intelligence within the Federal Bureau of
Investigation.
What is the bottom line? It is that, with the passage of this bill,
we will have taken a critical concrete step towards equipping our
Nation to defend against the enemy of the 21st century--terrorists,
rogue states and others who would do us harm.
We recognize that what worked in 1947 does not necessarily work
today. We create a new intelligence community, and a new leader of that
community, with stature and authority to do the job.
I thank my colleagues in this and the other body who worked so hard
to bring us to where we are today, prepared to pass a truly historic
law which will make everyone safer in an unsafe world.
Exhibit 1
U.S. Senate,
Washington, DC, August 3, 2004.
Hon. George W. Bush,
The White House,
Washington, DC.
Dear Mr. President: We write to seek your support and
assistance in moving forward with legislation to make needed
changes to the structure of our Nation's Intelligence
Community. We are co-sponsors of the ``Intelligence Community
Leadership Act of 2003,'' which was first introduced on
January 16, 2003, legislation which we believe is a valuable
starting point for this effort.
That legislation closely matches the recommendations
recently made by the 9-11 commission, most importantly by
``splitting'' the two jobs held by one person into two: a
``Director of National Intelligence'' to lead the
Intelligence Community, and a ``Director of the Central
Intelligence Agency'' to provide leadership for the CIA.
You announced yesterday your support for the creation of a
Director of National Intelligence to oversee our nation's
intelligence agencies. In addition to this fundamental
structural change, we agree with many of the Commissioners'
most important recommendations concerning additional
intelligence reform. We look forward to working with you in
implementing these important reforms.
We would welcome the opportunity to discuss the legislation
with you, and look forward to working together to address
these critical issues.
Sincerely yours,
Dianne Feinstein,
Olympia J. Snowe,
Bob Graham,
Barbara A. Mikulski,
Ron Wyden,
United States Senators.
Enclosures as described.
Mrs. MURRAY. Mr. President, I rise today to express my support for
the Intelligence Reform and Terrorism Prevention Act of 2004. This
landmark legislation will modernize and unify our intelligence
community and help ensure the safety of our country.
I strongly support this vital intelligence reform bill. The 9/11
Commission worked incredibly hard to identify how to better protect our
country from terrorism and gave us an excellent roadmap to protect our
people. We in Washington State are proud of the outstanding work put in
by Commissioner Slade Gorton. He has again done his State proud in
service to our country.
My colleagues, Senators Collins and Lieberman, deserve a great deal
of credit for getting us here today. When some thought that real reform
of our intelligence community was just a dream, too complicated to be
realized, it was their dogged determination to craft a good piece of
legislation that carried us through. And when others threw roadblocks
in their path, it was their patience and perseverance that allowed us
to come together and put the safety and security of our nation before
politics.
I especially commend the September 11 families who bravely stood up
and spoke out in favor of creating the Commission. They forced our
Government to fully examine the terrorist attacks and to find ways to
make our people safer. Their brave advocacy has made a difference, and
this bill is a fitting tribute to their loved ones.
As a member of both the Homeland Security Appropriations Subcommittee
and the Senate's 9/11 Working Group, I have looked closely at these
challenges. Over the past few years, I have worked closely with the
Department of Homeland Security, including the Coast Guard, FBI, TSA,
Border Patrol, as well as the National Guard and local law enforcement
throughout Washington State. Through our work together, I have learned
first hand the difficulties they face every day in defending our
country.
[[Page S11987]]
We need clear direction for our country's intelligence community. The
Commissioners stressed better coordination between the various
intelligence agencies, and this bill accomplishes that and so many
other important goals. I am glad that in the same bipartisan spirit
that the 9/11 Commission showed throughout their work, we in Congress
were able to work through our differences to pass this most important
reform bill.
I fully support the steps this bill in taking in several areas,
including:
Intelligence--through the creation of a Director of National
Intelligence, DNI, this bill restructures and strengthens the
intelligence community. The DNI will have the authority and resources
to transform the intelligence community into an agile network to fight
terrorism.
Information sharing--the 9/11 Commission recommended a new,
Government-wide approach to information sharing. This bill will
facilitate information sharing among Federal, State, local, tribal, and
private sector entities.
Privacy and civil liberties--this bill creates an oversight board
that will ensure privacy and civil liberties are appropriately
considered as laws regulations, and policies are implemented to protect
our country against terrorism. This oversight board will safeguard
individual's rights.
Transportation security--the 9/11 Commission highlighted several
deficiencies in transportation security. This bill will improve
passenger prescreening on airlines and cruise ships and require the TSA
to develop better technologies for air cargo security.
Border and immigration enforcement--this bill includes provisions to
enhance security of our borders and enforce border and immigration
laws. It allows the Secretary of Homeland Security to carry out a pilot
program to test advanced technologies that will improve border security
between ports of entry along the northern border of the United States.
These technologies would be used for border surveillance and operation
in remote stretches along the border where resources are stretched
thin.
Since the tragedy of September 11, Congress has passed strong
legislation to protect the homeland only to see the President fail to
request adequate funding to achieve the homeland security mission. We
can not play homeland security roulette forever and expect to
successfully defeat terrorism. To best protect the American people, we
must fund our intelligence and homeland security efforts to swiftly
implement these changes.
Today's action is an important step toward achieving a truly
integrated national effort in the global war on terror. This bill makes
significant changes necessary to meet current and future national
security challenges.
I am proud to support this historic legislation, and I look forward
to working with all of my colleagues in the Congress and the
administration to provide the critical funding needed to achieve the
homeland security mission.
Mr. CORZINE. Mr. President, I am pleased today to vote for the
Intelligence Reform and Terrorism Prevention Act of 2004. The bill
represents a critical step toward improving our intelligence
capabilities. If faithfully implemented, it will allow our intelligence
community to coordinate its efforts to thwart terrorism and defeat
terrorists abroad. The establishment of a Director of National
Intelligence is also necessary if we are to successfully prioritize our
efforts to fight terrorism, confront threats from nation states,
stabilize failed states that act as breeding grounds for terrorists,
and stop the proliferation of nuclear and other dangerous weapons. The
Director will also be responsible for ensuring that our policies are
once again informed by accurate and objective intelligence.
Improving our intelligence capabilities is especially important to
the people of New Jersey. More than 700 of New Jersey's citizens died
on September 11, 2001. At least two of the 9/11 terrorists lived in New
Jersey, and the anthrax that struck Washington in October 2001
originated in New Jersey. Our State is also especially vulnerable to
terrorist attack. Our transportation infrastructure, chemical plants
and ports are not adequately secured, and one stretch of road has been
called by the FBI the most dangerous 2 miles in America.
We would not be passing this bill were it not for the families of 9/
11 victims. They turned our national tragedy into meaningful reform.
They have inspired us, even as they have helped make us safer. This
bill is also a testament to the incredible work of the 9/11 Commission.
Under the steady leadership of former New Jersey Governor Tom Kean and
former Representative Lee Hamilton, the bipartisan commission put our
Nation's safety ahead of politics. The Commission brought the country
together in understanding the attacks of 9/11 and the events that
preceded the attacks. Through its public hearings and transparent
approach, they also rallied the country behind the hard, but critical
work of intelligence reform.
The bill itself will not, however, make us safer, unless it is fully
implemented in letter and spirit. The success of these reforms is also
dependent on the people tasked with carrying them out. As a new member
of the Senate Intelligence Committee, I will make sure that the bill is
implemented as intended, that our intelligence community has the tools
and resources to protect us, and that reforming our intelligence does
not result in the infringement of our civil liberties. I will also
ensure that our intelligence agencies are led by the best people our
country has to offer.
Mr. BIDEN. Mr. president, I wish to speak briefly about section 7109
of the bill, which relates to public diplomacy responsibilities of the
Department of State. I commend the conferees for setting forth the
important statement that public diplomacy must be integral to American
foreign policy. I don't have any doubt that Secretary Powell
understands that fact, but it is worth codifying this statement in law.
Section 7109 adds a new section 60 to the State Department Basic
Authorities Act of 1956, which, as the name implies, is the main
operating statute for State Department activities. Subsection (b) of
section 60 instructs the Secretary of State to make every effort to
coordinate the public diplomacy activities of the Federal Government,
and to coordinate with the Broadcasting Board of Governors to develop a
strategy ``for the use of public diplomacy resources.''
The Broadcasting Board of Governors, BBG, is an agency that is
separate and distinct from the Department of State. It was established
as a separate agency in 1998 for an important reason: to place a
``firewall'' between the foreign policy makers and the journalists who
operate our international broadcast services as a means of protecting
journalistic integrity. The Board consists of nine members, one of whom
is the Secretary of State. Of course, the two agencies do cooperate, as
current law already instructs. The State Department has a voice in the
Board's activities through the Secretary's seat on the Board, and the
Department has a statutory mandate under the U.S. International
Broadcasting Act of 1994 to provide ``information and guidance on
foreign policy issues to the Board.'' And, by law, the Secretary must
be consulted whenever decisions are made about adding or deleting
language services.
The requirement for a strategy under section 60 must be read in light
of this existing law. It does not breach the firewall. Rather, it
recognizes the reality that creating a public diplomacy strategy for
the Government will involve collaboration between the State Department
and the BBG. The provision in this legislation does not give the
Secretary any more authority with regard to the international
broadcasting activities of the BBG than he has under current law, nor
does it give the BBG any authority over other public diplomacy
activities outside of international broadcasting.
Subsection (b) of section 7109 amends current law to further
delineate the responsibilities of the Under Secretary of State for
Public Diplomacy. Among other things, this subsection tells the Under
Secretary to assist the Broadcasting Board of Governors to ``present
the policies of the United States clearly and effectively,'' and to
``submit statements of United States policy and editorial material to
the [BBG] for broadcast consideration.'' These provisions are
consistent with the current practice under which editorial statements
of U.S. policy are reviewed by
[[Page S11988]]
the Department of State. The language in the bill that material is to
be submitted for ``broadcast consideration'' makes clear that final
authority about what is to be broadcast rests with the BBG.
Mr. DODD. Mr. President, I rise today to speak about the conference
report of the national intelligence reform bill, which is currently
pending before this body. I would like first to commend Senators
Collins and Lieberman, as well as Representatives Hoekstra and Harman,
for their efforts in crafting this legislation.
Let me be clear from the outset. I support the 9/11 Commission's
recommendations, as I think do most of us here in the Senate. The
Commission was a bipartisan group whose members dutifully dedicated
well over a year of their lives to the protection of our Nation. We owe
them a great debt of gratitude--not only for the hard work that went
into preparing their report, but for their concerted effort since then
to keep the issue of intelligence reform at the front of the national
agenda.
But as we all know, many months have passed since the 9/11 Commission
issued its report. And our Nation's intelligence system remains broken.
That is not because the Senate failed to act. I was pleased in October
when the Senate came together in a bipartisan fashion to pass the
National Intelligence Reform Act of 2004, which closely followed the
important recommendations of the 9/11 Commission. I strongly supported
that bill.
Had the House's version of that bill followed the 9/11 Commission's
recommendations as closely as the Senate's version, we would not have
been here today talking about the lingering need to pass intelligence
reform. Unfortunately, House Republicans included several provisions in
their bill--and insisted on them during conference--that nearly
derailed the entire effort.
The 9/11 Commission urged them to drop these provisions. But their
pleas fell on deaf ears.
President Bush was also slow to react. Although he has professed his
support for intelligence reform, during most of this time, the
President sat on the sidelines as members of his own party nearly
prevented its implementation.
Having said that, I am pleased that House-Senate conferees worked out
their differences over this measure. I voted in support of this
conference agreement a short while ago because reform of our
intelligence systems is long overdue. It can not be put off any longer.
In part, this bill achieves some important objectives set out by the
9/11 Commission. It establishes the position of Director of National
Intelligence, DNI, the person who, hopefully, will help coordinate the
flow of intelligence to the President, as well as set budgetary
priorities for a fair amount of our Nation's intelligence activities.
Among other things, this bill will also establish a national
counterterrorism center, and direct the Transportation Security
Administration to take steps to strengthen our transportation security
efforts.
But I also have strong reservations about certain aspects of this
conference report.
First, the new Director of National Intelligence, DNI, would not be
directly in charge of day-to-day intelligence-gathering operations.
Indeed, this bill--whose language, in some crucial places, is
disturbingly vague--provides that the DNI will not in practice head up
the intelligence pyramid providing recommendations to the President.
Instead, the DNI will now have competition from the CIA Director, as
well as the Director of the newly created National counterterrorism
Center--both of whom will be presidential appointees requiring
confirmation by the Senate. Rather than simplification and
consolidation, it is possible that this could have the effect of
creating new bureaucracies and increasing confusion.
We should remember that among the purposes of creating a DNI was to
consolidate intelligence coordination efforts in one person who could
craft a suitable budget, ensure sharing of information among agencies,
and consolidate information for presentation to the President. It is by
no means certain that this purpose will be achieved by this
legislation.
Second, although the DNI would have control over much of America's
total intelligence budget--roughly $40 billion--he or she would not
have control over approximately 30 percent of this total, including
certain tactical military intelligence operations. The Department of
Defense, DOD, would retain control over those operations and funds.
Why is this a problem? Because these DOD intelligence collection
agencies provide three-quarters of our Nation's military and
international intelligence. Leaving aside operational control, if the
DNI doesn't have budgetary authority over three-quarters of some of our
most important intelligence activities, how will that person be able to
effectively carry out their job of protecting the American people?
Also of concern are provisions which could affect Americans' civil
liberties. For example, this bill will create an FBI intelligence
directorate, and it will require the FBI to specifically train and
dedicate a group of its agents to gather domestic intelligence against
suspected terrorists. Obviously, we need to prevent terrorists from
reaching our shores and root them out if and when they are here. But we
will have to keep close watch to ensure that Americans' civil liberties
are not violated as part of these efforts.
That is why I am so concerned that although this legislation creates
a panel to protect civil liberties and to prevent privacy abuses, this
panel will not have subpoena power, and its members will serve at the
pleasure of the President. This situation calls into question whether,
in practice, the panel will be able to fulfill its role of protecting
Americans from the excesses of power exercised by their Government.
Despite these reservations, I voted in support of this conference
report. We have already waited too long--3 years and 3 months--and the
process of intelligence reform must begin. This legislation is a
beginning.
The tragedy of 9/11 continues to echo today with each family that
lost a loved one that horrible day. No legislative reforms can
alleviate that loss or wash away the heart-wrenching pain felt by these
families. But if done right, reforms might help prevent another such
tragedy from happening again.
That is why I would also offer a word of advice to the
administration, to the officials who are eventually confirmed for these
posts, and to those whose jobs will be to root out terrorists within
our borders. The American people will be watching you, as will
Congress. And together, we will make every effort to ensure that the
process of reform continues and that Americans' constitutionally
guaranteed rights are protected.
Mrs. CLINTON. Mr. President, today is a historic day. We are coming
to the end of a process that began immediately after the September 11
attacks and is ending with a historic reorganization of the
intelligence community. Today's vote, coming after months of testimony
before the 9/11 Commission, weeks of hearings on Capitol Hill and tough
negotiations in Congress, represents a signal accomplishment in
reforming our government to protect our homeland and fighting the war
on terror.
Today's accomplishment, the Intelligence Reform and Terrorism
Prevention Act of 2004, would not have been possible without the
courage, dedication and hard work of the families of the victims of
September 11. It was the persistence and resilience of these brave
family members who lost their loved ones on September 11 that led to
the creation of the 9/11 Commission. And it was their continued resolve
that helped to keep the heat on Congress to insure that those
recommendations were put into law. While not every recommendation of
the 9/11 Commission is included in this bill, the bill makes historic
changes in the way our government will collect and analyze intelligence
so that we hopefully never again have to live through a day like
September 11.
In the aftermath of September 11, and as the 9/11 Commission report
so aptly demonstrates, it is clear that our intelligence system is not
working the way that it should. The Commission report, following on the
work of prior commissions that have studied the
[[Page S11989]]
issue, details how we have 15 different intelligence agencies who are
not sharing information, not communicating with one another and missing
important linkages. This legislation, through the creation of a
Director of National Intelligence, DNI, breaks down the artificial
barriers in the intelligence community and insures that there is a high
level official, answerable to the President, who is working to insure
that our intelligence agencies are sharing information and
communicating with one another.
This legislation gives the DNI budget authority over the intelligence
community which will allow him or her to exercise proper control over
the coordination among agencies. In Washington, budget authority means
real authority and strengthening the DNI is a major accomplishment of
this bill. He or she will also be responsible for budget execution and
have the authority to reprogram funds and transfer personnel. These
powers will allow the DNI to establish objectives and priorities for
the intelligence community and manage and direct tasking of collection,
analysis, production, and dissemination of national intelligence.
This legislation also establishes a Privacy and Civil Liberties
Oversight Board, as the 9/11 Commission recommended. The creation of
this Board is intended to ensure that at the same time we enhance our
Nation's intelligence and homeland defense capabilities, we also remain
vigilant in protecting the civil liberties of Americans. Our civil
liberties define us as Americans. As the 9/11 Commission said, ``Our
history has shown us that insecurity threatens liberty. Yet, if our
liberties are curtailed, we lose the values that we are struggling to
defend.'' The conference report being considered today essentially
charges the Board with primary executive branch responsibility for
ensuring that privacy and civil liberty concerns will be appropriately
considered in the implementation of provisions designed to protect us
against terrorism. While the legislation that initially passed the
Senate explicitly provided the Board with subpoena powers, the
conference report that we are voting on today does not. That omission
is unfortunate, and I will work with my colleagues in Congress to
address this issue and provide such powers in the future, so that the
Board will have the tools it will need to help us maintain the proper
balance between our Nation's security and our liberties.
The legislation calls for dramatic improvements in the security of
our Nation's transportation infrastructure, including aviation
security, air cargo security, and port security. Through this
legislation, the security of the northern border will also be improved,
a goal I have worked toward since 2001. Among many key provisions, the
legislation calls for an increase of at least 10,000 border patrol
agents from fiscal years 2006 through 2010, many of whom will be
dedicated specifically to our northern border. There will also be an
increase of at least 4,000 full-time immigration and Customs
enforcement officers in the next 5 years.
While I look forward to a productive debate on immigration issues in
the next Congress, I am pleased that there are a number of key
immigration reform provisions in this legislation, including those
addressing the process of obtaining U.S. visas.
I am also pleased that the legislation addresses the root causes of
terrorism in a proactive manner. This is an issue that I have spent a
good deal of time on in the past year because I believe so strongly
that we are all more secure when children and adults around the world
are taught math and science instead of hate. The bill we are voting on
today includes authorization for an International Youth Opportunity
Fund, which will provide resources to build schools in Muslim
countries. The legislation also acknowledges that the U.S. has a vested
interest in committing to a long-term, sustainable investment in
education around the globe. Some of this language is modeled on
legislation that I introduced in September, the Education for All Act
of 2004, and I believe it takes us a small step towards eliminating
madrassas and replacing them with schools that provide a real education
to all children.
But we are being shortsighted if we limit our educational investments
to countries with predominantly Muslim populations, and if we focus
solely on expanding the number of U.S.-run schools in these areas, as
the Intelligence Reform and Terrorism Prevention Act does. Instead, the
U.S. should work with the global community to create strong incentives
for developing countries to build universal, public education systems
of their own. Only then will our investments have the maximum impact
because only then will they result in systemic change.
We do not know where the next Afghanistan will spring up, but we do
know that extremism will flourish where educational systems fail.
The 9/11 Commission, and the commissions before it, including the
Homeland Security Independent Task Force of the Council on Foreign
Relations, chaired by former Senators Warren Rudman and Gary Hart--
Hart-Rudman Commission--and the Advisory Panel to Assess Domestic
Response Capabilities for Terrorism Involving Weapons of Mass
Destruction, chaired by former Gov. James Gilmore III--Gilmore
Commission--called for dramatic improvements in the sharing of
intelligence information. In the immediate aftermath of the 9/11
terrorist attacks, I worked with a number of my colleagues bipartisan
basis in focusing on the need for greater sharing of terrorist-related
information between and among Federal, State and local government
agencies. The sharing of critical intelligence information is vitally
important if we are to win the war against terrorism. We need to ensure
that our frontline solders in the war against terrorism here at home--
our local communities and our first responders--are as informed as
possible about any possible threat so that they can do the best job
possible to protect all Americans. I am pleased that this legislation
mandates major improvements in this regard.
Contained in title VII of the act are provisions from the 9/11
Commission Implementation Act of 2004, legislation introduced by
Senators McCain and Lieberman and for which I am proud to have been an
original cosponsor. Among its provisions are those that address
homeland security preparedness, including a call for a unified incident
command system and significantly enhancing interoperable communications
between and among first responders and all levels of government. Title
VII also speaks to the need for allocation of additional spectrum for
first responder needs and to assess strategies that may be used to meet
public safety telecommunication needs, an issue that I have focused on
intensely as cochair of the E-911 Caucus.
I am extremely disappointed, however, that this legislation does not
specifically mandate an improvement in how the Federal Government
allocates critical homeland security funds to States and local
communities around the country. As many of my colleagues know, I have
repeatedly called upon the administration and my colleagues to
implement threatbased homeland security funding to ensure that the
homeland security resources go to the States and areas where they are
needed most. I have introduced legislation in this regard and even
developed a specific homeland security formula for administration
officials to consider.
But threat-based funding is not only important to me and to the New
Yorkers whom I represent; it was also a primary recommendation of the
9/11 Commission. Specifically, in its report, the Commission stated:
We understand the contention that every state and city
needs to have some minimum infrastructure for emergency
response. But federal homeland security assistance should not
remain a program for general revenue sharing. It should
supplement state and local resources based on the risks or
vulnerability that merit additional support. Congress should
not use this money as a pork barrel.
The 9/11 Commission also recommended that an advisory committee be
established to advise the Secretary on any additional factors the
Secretary should consider, such as benchmarks for evaluating community
homeland security needs. As to these benchmarks, the Commission stated
that ``the benchmarks will be imperfect and subjective, they will
continually evolve. But hard choices must be made. Those who would
allocate money on a different basis should then defend their view of
the national interest.'' In short, the Commission made unequivocally
clear that the current method of allocating the majority of federal
homeland security resources, i.e., on a
[[Page S11990]]
per capita basis alone, must be changed.
Not only did the 9/11 Commission recommend that such changes be made
in how Federal homeland security funds are allocated, but commissions
before it, such as the Rudman Commission, have strongly recommended it
as well. Indeed, the Rudman Commission stated more than a year and a
half ago that ``Congress should establish a system for allocating
scarce resources based less on dividing the spoils and more on
addressing identified threats and vulnerabilities. . . . To do this,
the federal government should consider such factors as population,
population density, vulnerability assessment, and presence of critical
infrastructure within each state.''
Both the Senate and House-passed intelligence reform bills that were
reconciled in this conference report contained language that sought to
effectuate this important recommendation but, unfortunately, such
language was not included in the conference report. As the 9/11
Commission, Rudman Commission, many other homeland security experts,
and I have repeatedly asserted, there are few issues more important to
our nation's homeland defense than homeland security preparedness and
the proper allocation of the resources to achieve that preparedness.
Therefore, I will continue to work as hard as I can with my colleagues
on a bi-partisan basis to make the 9/11 Commission's call for threat
and risk-based funding a reality.
At the end of the day, this legislation has the capacity to improve
our security and make us safer. I would especially like to note the
dogged persistence of Senators Collins and Lieberman, who were
unflinching in their work on this important bill. However, passage of
this legislation is just the beginning. We have now given our
Government the tools to make a difference. But as with anything in our
system, success depends on the independence and accountability of those
appointed to carry out these reforms. It is critical that the American
people, and we in Congress, insist upon accountability from those whom
we are asking to implement these reforms. I look forward to working
with my colleagues in the Senate in that effort.
Once again, thank you to the 9/11 families, the 9/11 Commission and
all those who have worked to make this legislation a reality. Now the
hard work of implementing these reforms begins.
Mr. KYL. Mr. President, today we vote on the conference report on the
intelligence reform bill, S. 2845/H.R. 10. As did the House, we will
approve it and send it on to the President for his signature.
I strongly believe that our intelligence community must be reformed
and appreciate the hard work in support of that objective of those
Senate and House Members who have worked on the problem.
Nonetheless, I have mixed feelings about this legislation. I am
neither convinced that it will fix the core problems in our
intelligence community, nor that it will do no harm. Particularly in
time of war, prudence demands Congress fully understand the
consequences, both positive and negative, of its actions, and be
cautious about mandatory change. At the same time, there are some
positive reforms that can be easily implemented. I note the inclusion
in the conference report of a number of much-needed provisions, which
will help to ensure we have the legal authorities and resources we need
to effectively fight terror. In fact, title VI includes about half of
the provisions of the Tools to Fight Terrorism Act, S. 2679, an omnibus
antiterrorism bill that I introduced earlier this year with several
other members of the Judiciary Committee and Senate leadership.
This is the second time the intelligence reform measure comes before
the Senate. We previously considered the Senate version in October,
prior to the Presidential election. I voted for it to ensure a modified
version could be worked out in conference, and, in the interest of
allowing it to move quickly, withdrew an amendment on privacy and civil
liberties oversight about which I felt very strongly. I did so with
great reservations because of the many deficiencies in the Senate bill,
but was assured that my concerns would be addressed in the House-Senate
conference. I know that a number of my Senate colleagues voted for the
bill with a similar understanding.
Unfortunately, I don't believe that some of the commitments to
address Members' concerns were fully honored, and I regret that our
vote for the bill was used by Senate conferees to suggest almost
unanimous Senate support in order to influence House conferees to
support the Senate version. The Senator from Maine said the following
on October 20: ``I'm very proud of the fact that the Senate produced a
bill that passed with only two dissenting votes, and I hope that we can
likewise produce a product from this conference that will be signed
into law shortly.'' In retrospect, it would have been better to have
voted against the flawed Senate bill so House conferees would have
understood that it did not enjoy universal support.
Over the last 2 months, I pressed my case on privacy and civil
liberties oversight and other issues with the Members of the conference
committee, the White House, and others. I know that some of my
colleagues have done the same. I have studied carefully the final
product on which we will vote, and, though some changes have been made,
I still have serious reservations that I will discuss today.
To summarize: Regarding the central thrust of the bill,
reorganization does not necessarily equal reform. This bill does
reorganize; but it remains to be seen whether this reorganization will
improve or damage the system we currently have in place that gets
timely intelligence to our warfighters on the ground. Second, though
some changes have been made to the language originally adopted by the
Senate, I continue to have serious concerns about the effect of the
privacy and civil liberties oversight provisions on the ability of our
intelligence officers to perform their missions. I am concerned that
the manner in which this oversight will be conducted will exacerbate
the problem of risk aversion identified by the 9/11 Commission and the
Congressional inquiry on the 9/11 attacks. Third, while I am pleased
that some House provisions to reform immigration, as well as a
provision I offered as an amendment to the Senate bill, were included
in the final conference report, I am very disappointed that we have
passed up an opportunity to do more in this area to protect our
country.
Fourth, while noting my concerns about the intelligence
reorganization portion of this conference report, I do want to
recognize the inclusion of some important provisions from my Tools to
Fight Terrorism Act.
During the debate on the Senate version of the intelligence reform
bill, I discussed in detail the shortcomings of the 9/11 Commission's
recommendations, on which that bill and this conference report are
based. Former Secretary of Defense James Schlesinger aptly summarized
what I believe to be the key problem: ``[The Commission] has . . .
proposed a substantial reorganization of the intelligence community--
changes that do not logically flow from the problems that the
Commission identified in its narrative.''
A number of former officials also cautioned Congress from acting
hastily to pass legislation without a complete understanding of the
problems. For example, the Center for Strategic and International
Studies released a statement before the original Senate vote on S.
2845, which warned: ``Rushing in with solutions before we understand
all of the problems is a recipe for failure.'' The statement was
endorsed by: former Senators David Boren, Bill Bradley, Gary Hart, Sam
Nunn, and Warren Rudman; former Secretaries of Defense Frank Carlucci
and William Cohen; former Deputy Secretary of Defense John Hamre;
former Director of Central Intelligence Robert Gates; former Secretary
of State and National Security Advisor Henry Kissinger; and former
Secretary of State George Shultz.
In recent weeks, the editorial pages of several major papers, while
not necessarily sharing the same substantive positions, have strongly
urged Congress to begin a new process next year to pursue intelligence
reform, rather than rush to pass legislation this year. The Wall Street
Journal in a November 22 editorial commented: ``If this reform is
really so vital, it will get done, but better to do it in a more
considered fashion next year.'' Similarly, in response to Congress not
considering the
[[Page S11991]]
conference report before Thanksgiving, the Washington Post ran an
editorial which stated: ``. . . the legislation's failure strikes us as
a benefit. More time and more careful deliberation is needed before
such sweeping changes are enacted.'' And the Washington Times ran an
editorial on November 30 which advised: ``Intelligence reform is
necessary, and reasonable people can disagree on what constitutes a
good bill without being insulted. Rather than getting it now, we urge
Congress to focus on getting it right.''
I don't believe we can say with reasonable certainty that we are
getting it right. In large part, this conference report sets up a new
bureaucratic structure. It does not, however, tackle the more difficult
issue of resolving cultural problems within the intelligence community,
including risk aversion, group think, and a failure of leadership.
These problems, along with other matters, like immigration reform and
legal tools and resources for fighting terror, all identified by the
9/11 Commission, must be addressed if we are to improve our ability to
predict and prevent future terrorist attacks. Indeed, those who say
that this bill is needed to prevent another 9/11 can no more guarantee
that result than those who advocate the status quo, reason being that
neither scenario really gets at the core issues.
Additionally, and as I already mentioned, we should be mindful of the
fact that we are making drastic changes to the structure of our
intelligence community and the process by which it operates, while our
country is fighting a war. I discussed these concerns on the floor of
the Senate during the floor debate on S. 2845, the Senate version of
the intelligence bill, stating:
In his testimony, Secretary Rumsfeld discussed in detail
his concerns about how intelligence community reorganization
could potentially adversely affect the Defense Department. He
expressed his strong reservations about the national
collection agencies--the NSA, NGA, and NRO--being removed
from the Defense Department (where they are now located) and
aligned under the direct leadership of the National
Intelligence Director. He stated:
``We wouldn't want to place new barriers or filters between
the military Combatant Commanders and those agencies when
they perform as combat support agencies. It would be a major
step to separate these key agencies from the military
Combatant Commanders, which are the major users of such
capabilities.''
The Defense Department worked tirelessly in the decade
after the first Gulf War to ensure that the speed and scope
of intelligence support to military operations would be
improved for future conflicts. It was General Schwartzkopf's
view that the national intelligence support during Desert
Storm was not adequate. Now, as we've seen from the success
of our military operations in Afghanistan, Iraq, and the
broader War on Terror, ``gaps and seams,'' as Secretary
Rumsfeld refers to them, have been drastically reduced.
General Myers, Chairman of the Joint Chiefs of Staff, also
expressed his concerns on the subject during his testimony to
the Senate Armed Services Committee, stating:
``. . . for the warfighter, from the combatant commander
down to the private on patrol, timely, accurate intelligence
is literally a life and death matter every day. . . . As we
move forward, we cannot create any institutional barriers
between intelligence agencies--and of course that would
include the National Security Agency, the National
Geospacial-Intelligence Agency, and the National
Reconnaissance office and the rest of the warfighting team.''
I am concerned that the reorganization package before the
Senate places this effective system in jeopardy.
In S. 2485, the NSA, NGA, and NRO remain within DOD; but
this is somewhat deceiving. These national collection
agencies will also be within the newly defined ``National
Intelligence Program.'' The Committee-reported bill would
essentially remove the Secretary of Defense from any
meaningful management role over these agencies.
First, the National Intelligence Director would have the
authority to appoint the heads of these agencies, albeit with
the concurrence of the Secretary of Defense. What makes this
unusual and potentially problematic? Well, consider the fact
that the Director of the National Security Agency, a General
Officer, is dual-hatted as the Deputy Commander for Network
Attack, Planning, and Integration at Strategic Command, or
that the Director of the National Reconnaissance Office also
serves as an Under Secretary of the Air Force. These
positions truly support the mission of the Defense
Department.
Second, the National Intelligence Director would have the
authority to execute the budgets of these agencies. It is one
thing to say that the NID should manage the entire budget for
the National Intelligence Program, and, therefore, to help
develop agencies' budgets and even receive their
appropriation. It is quite another to altogether remove the
Secretary of Defense from the loop by requiring that the NID
suballocate funding directly back to the agencies. This
effectively removes the Secretary from the management loop.
I have studied the Defense Secretary's testimony to the
Senate Armed Services Committee, as well as the testimony of
other experts. I am also aware that there were some good
amendments in the Committee mark-up to help preserve the
Defense Department's equities. But I am still not convinced
that we are doing no harm. As General Myers commented during
the course of the Senate Armed Services Committee's
discussion on the subject, ``[T]he devil's in the details.''
The chairmen of the House and Senate Armed Services Committees, as
well as other Members of the House and Senate, have played a vitally
important role in conference negotiations to make sure that
intelligence support to our combatant commanders will not be disrupted.
They worked tirelessly to see that changes, some of which the Chairman
of the Joint Chiefs of Staff said were needed, would be included in the
conference report. I applaud their efforts, and appreciate the changes
that conferees were willing to make.
Many of the potential defense-related pitfalls of the reorganization
that I discussed in the context of the Senate bill have been improved
upon. One crucial change is the following provision intended to ensure
that the military chain of command is protected: ``The President shall
issue guidelines to ensure the effective implementation and execution
within the executive branch of the authorities granted to the Director
of National Intelligence by this title and the amendments made by this
title, in a manner that respects and does not abrogate the
statutory responsibilities of the heads of the departments of the
United States Government concerning such departments
. . .''
Despite the improvements that have been made, and the protections
that have been added, I still believe that we simply don't know for
sure how the changes we are making will affect the system we currently
have in place to support our men and women in uniform. For that reason,
we must commit to carefully monitor this legislation's implementation,
specifically, the DNI's authority to transfer military personnel within
the National Intelligence Program, authority to reprogram and transfer
funds, and the role of the DNI in intelligence acquisition programs
managed largely by the Defense Department--and be prepared to make
changes if necessary.
Perhaps the key concern I have with this conference report is its
privacy and civil liberties oversight provisions, which are totally
extraneous to any problem related to 9/11 and will exacerbate the
cultural problems in the intelligence community, in particular, the
problem of risk aversion.
Risk aversion, which plays out not only in the intelligence
community, but also in foreign policy decisionmaking, economics,
business investments, and so on, is the tendency to avoid action which
might be criticized after the fact because of a poor outcome. There are
many potential causes a particular action might have adverse,
unintended consequences, might get one into trouble with one's
superiors, or might simply draw unwanted attention. When an individual
or a Government acts, there is always a calculation of risk; but some
Governments and some individuals are more willing to take chances than
others. This is a product of both leadership and environment. Risk
aversion has contributed to numerous intelligence failures, including
the September 11 attacks, according to the 9/11 Commission.
One contributor to risk aversion is the belief that third parties,
including congressional committees, will challenge decisions after the
fact. The Privacy and Civil Liberties Oversight Board included in the
Senate bill is just such an institution.
I introduced an amendment to the Senate bill which would have
modified the privacy and civil liberties oversight provisions because I
strongly believed that the bill would have exacerbated the problem of
risk aversion by creating a redundant oversight bureaucracy and an
unaccountable oversight Board with inappropriate authority over
Government officials and private individuals. The bill went far beyond
the recommendation of the 9/11 Commission, which was to create an
executive branch board to oversee privacy and civil liberties and
advise the
[[Page S11992]]
President. The President created such a board through Executive order
in August.
In summary, the Senate bill would have established: two officers
within the National Intelligence Authority, one responsible for
privacy, the other for civil rights and civil liberties; an inspector
general within the National Intelligence Authority, who, in part, would
monitor and inform the National Intelligence Director of any violations
of civil liberties and privacy; an Ombudsman within the National
Intelligence Authority to protect against so-called ``politicization''
of intelligence; a Privacy and Civil Liberties Oversight Board with
extensive investigative authorities; and privacy and civil liberties
officers within the Departments of Justice, Defense, State, Treasury,
Health and Human Services, and Homeland Security, the National
Intelligence Authority, the Central Intelligence Agency, and any other
department, agency, or element of the Executive Branch designated by
the Privacy and Civil Liberties Oversight Board to be appropriate for
coverage.
While I believe that privacy and civil liberties should be protected,
I do not believe that oversight should be conducted in a manner that
causes intelligence officers to be more worried about getting into
trouble than about performing their missions. The question is whose
civil liberties are jeopardized by improvement of our intelligence
capabilities? The Taliban? Al-Qaida? Saddam Hussein? Not American
citizens. The attacks of 9/11 were not caused by civil liberty
deprivation; but by inadequate intelligence and immigration law
deficiencies. So why hobble intelligence capabilities because of a
perceived problem that has never been identified and was in no way
involved in the 9/11 attacks? To the extent there is concern about laws
such as the Patriot Act, they can be dealt with in the reauthorization
of that Act. Such concerns have nothing to do with intelligence
reorganization.
My amendment would have eliminated some of the redundancy, for
example, by paring back the number of officers within the office of the
National Director of Intelligence responsible for privacy and civil
liberties oversight, and altered the power of the Privacy and Civil
Liberties Oversight Board by eliminating subpoena authority and the
Board's authority to compel executive branch compliance with its
requests.
In the interest of allowing the intelligence bill to move forward
quickly through the Senate, and noting that the House bill's provisions
on the subject were more reasonable, I withdrew this amendment with a
verbal understanding that my concerns would be addressed in the House-
Senate conference. I pressed my case firmly in writing with the
conferees, outlining my concerns and suggesting various ``fixes.''
Some improvements have been made in the conference report. For
example, the conference report consolidates the positions within the
office of the National Director of Intelligence responsible for privacy
and civil liberties oversight into one. But the authorities of the
Privacy and Civil Liberties Oversight Board, which was contained in the
Senate bill but not in the House bill, remain problematic. Subpoena
authority over private individuals, which would have been entirely
inappropriate, particularly given the location of the Board in the
Executive Office of the President, was removed, and the Board will now
be accountable to the President. But the authority to compel executive
branch compliance with Board requests remains. And this is the real
problem.
Departments and agencies are required to comply with any Board
request unless a waiver is exercised by the National Director of
Intelligence or the Attorney General. This places an additional burden
on two key officials, whose attention should be directed toward other
issues, including preventing a future terrorist attack. It also will
likely foster an environment in which our intelligence officers are
increasingly cautious, or risk averse, about completing the very tasks
that are required to fulfill their missions. Just because a Board
request to a Department-head does not necessarily rise to the level of
reasonably exercising a waiver does not mean that it does not act as a
deterrent or a distraction to those serving honorably in the
intelligence community.
Consider this example: The International Red Cross complains that
terrorists captured in Pakistan are treated poorly and convinces the
Civil Liberties Board to investigate. The Board demands that our CIA
station chief in Pakistan testify about what he knows. The DNI demurs
on grounds of national security, or doesn't. The hue and cry about
``secrecy'' and ``cover-up'' cause the DNI to allow the Board to
interrogate the CIA official. Can anyone deny the national security
implications, let alone the resulting risk aversion that would settle
into the entire intelligence community? It would be disastrous.
I intend to monitor closely the action of this Board once it is put
into place to ensure that its investigations and public reporting
requirements do not adversely affect our intelligence community, and
will urge further limitations on its authority. Fighting terrorists
abroad means spying, gathering intelligence. Civil liberties for
terrorists should not be high on the list of U.S. reforms for
intelligence collection. Again, 9/11 was caused by intelligence
failures, not insufficient attention to terrorists' civil rights. A
sense of perspective would have eliminated the most egregious features
of the conference report.
With regard to the immigration provisions included, or not included,
in the final bill, I am pleased that a provision I authored requiring
mandatory interviews for non-immigrant visa applicants was retained. I
am also pleased that some other immigration reform provisions were
included in the conference report, including an authorization for an
increase in Border Patrol agents by 2,000 in each of fiscal years 2006-
2010; an increase of Immigration and Customs Enforcement agents by 800
in each of fiscal years 2006-2010; an increase in detention beds by
8,000 in each of fiscal years 2006-2010, with priority for the use of
these beds to detain aliens charged with inadmissibility or
deportability on security grounds.
I am also pleased that a requirement to develop and implement a plan
to require a passport or other document, or combination of documents,
sufficient to denote citizenship and identity for all travel into the
U.S. by U.S. citizens and nationals from Western Hemisphere countries,
for whom such requirements have previously been waived, is included in
the conference report. And that a provision requiring a detailed plan
from the Department of Homeland Security, within 180 days, about how to
accelerate the full implementation of the biometric document
requirement of the Border Security Act that Senators Feinstein,
Kennedy, Brownback, and I authored, will be included. There are other
good provisions.
I am very troubled, however, that many of the important immigration
reform provisions included in the House-passed bill were either altered
significantly or left out of the conference report. I understand that
Members have been assured that such provisions will be considered next
year. As the chairman of the Senate Judiciary Subcommittee on Terrorism
and a senior member of the Immigration Subcommittee, I have witnessed
many times the opportunities for real immigration reform slip through
our fingers. This conference measure represents one example.
There is no real substantive reason that these important provisions,
which were described as immigration reforms but can also be accurately
be described as counterterrorism measures, should not have been
included in the final bill. The primary goal of this legislation, is to
better enable the U.S. Government to prevent future terrorist attacks
like that which occurred on 9/11. Many of the House-passed immigration
provisions ultimately excluded from the final conference report would
have enhanced the Government's ability to prevent entry of, and find,
terrorists who wish harm to our country.
The public and media debate about immigration reform and the
intelligence conference report has focused on driver's license
standards and whether States should be prevented from issuing such
documents to illegal aliens. The answer is unequivocally yes, and I
will discuss this matter again. There are additional important
immigration/terrorism reforms that the conference negotiators refused
to
[[Page S11993]]
accept, and by doing so, I believe the bill was seriously, dangerously
weakened. I will mention only a handful of them.
Importantly, the House-passed bill included a section that would have
required aliens in the United States to use only a Department of
Justice- or Department of Homeland Security-issued document, or a valid
passport, to establish identity to a U.S. Governmental official or
worker. This would have effectively prohibited the use of the matricula
consular identification card for identification purposes for Federal
identification. The conference measure eliminated this section of the
bill, and instead provides only for a process for determining minimum
standards that passengers will have to present to board a commercial
aircraft in the United States.
Additionally, the House would have expanded the use of expedited
removal by requiring its use in the U.S. as well as along the U.S.
border, currently expedited removal is used only at U.S. ports of
entry. The conference measure strikes this provision.
The House-passed bill would also have overturned a Ninth Circuit
precedent that has effectively barred immigration judges from denying
asylum claims on the basis of credibility. The Government is barred
from asking foreign governments what evidence they have about the
terrorist activities of asylum applicants. So the only evidence the
Government can use in opposing an asylum request is to argue that the
applicant is lying. The Ninth Circuit precedent barring immigration
judges from denying asylum claims on the basis of credibility would
have been overturned if the conference report retained the House-passed
provision; but it was eliminated from the conference measure.
Additionally, the Ninth Circuit has been granting asylum to
applicants on the basis that their government believes they are
terrorists, and, therefore, they deserve asylum because they are being
persecuted on account of the political beliefs of the relevant
terrorist organization. The House-passed bill overturned this precedent
and would have required aliens to show they qualify for asylum based
upon the currently protected grounds for receiving such, but conference
negotiators refused to accept this provision.
Instead, what the final version of the bill included is a Government
Accountability Office, GAO, study on the weaknesses in the U.S. asylum
system that have been exploited by aliens connected to terrorism.
The House version of the bill included a provision to close an
existing loophole in immigration law that allows foreign nationals
whose visas or other travel documents have been revoked by the State
Department on terrorism grounds, to remain in the United States until
their visa, or DHS-approved time here, expires, despite the revocation.
The current conference report retains that provision, which makes
revocation of a visa on terrorism grounds a legal ground for the
deportation of the visa holder. However, the conferees created another
loophole through which a potential terrorist could remain in the United
States despite a visa revocation, by adding language that would allow
judicial appeal of any visa revocation decision. Allowing judicial
appeal of such decisions will only create another avenue through which
a potential terrorist can legally remain in the United States for an
undetermined amount of time. Currently all decisions regarding visa
issuance by Consular Officers are final, they are not subject to
judicial review. The same should be true of visa revocation decisions.
A number of Senators, including Senators Grassley, Sessions, Chambliss,
Ensign, and I fully supported this provision and contemplated offering
as a similar amendment during Senate consideration of the bill. I am
disappointed to learn that language was added to allow individuals
whose visas have been revoked on terrorism grounds to appeal the State
Department's decision.
Finally, while increasing the number of Customs and Immigration
enforcement officers is important and is accomplished in the conference
report, another important House-passed provision, requiring that half
of any new immigration investigators be focused on enforcing
restrictions on illegal immigrants in the workforce, was not included
in the final version of the bill.
As I mentioned in the beginning of my comments about the immigration-
related sections, an important provision dealing with identity
standards in the Federal context was struck from the conference
measure. While that measure wasn't necessarily perfect, it certainly
represented a good beginning for development of a necessary standard of
identification in this country. The House-passed driver's license
standards section also represented a very good attempt at eliminating
the opportunity for illegal immigrants to obtain driver's licenses,
which we all know allows illegal immigrants to live as though they were
here legally.
While I would very much like to discuss the negative ramifications on
the workplace, and States generally, of the illegal immigrant
population having such easy access to driver's licenses and other
documents that allow them to live as though they are here legally, I
will instead focus on how important documentary validity is to
preventing terrorists from entering and living in the United States.
Both the House and Senate, after reviewing the 9/11 Commission's
recommendation, voted to apply some form of standardization to the
driver's license. The question really is, Is the Congress willing to
get to the root of the problem and prevent illegal immigrants from
obtaining such licenses? True, most of the 9/11 hijackers had
``valid,'' but improperly issued, visas. Hopefully, now, the State
Department is following the law and making it harder for individuals
who shouldn't possess U.S. visas from obtaining them. But that still
leaves millions of individuals who enter the country illegally, some of
whom could be terrorists, able to obtain the document that will allow
them to blend easily into our neighborhoods, workplaces, churches, and
mosques, let alone board airplanes or otherwise gain access to
sensitive areas. The conference report only requires that States
include the following: the person's full legal name; the person's date
of birth; the person's gender; the person's driver's license or
identification number; a digital photograph; the person's address of
principal residence; and the person's signature. And a carve-out was
included for States in order that any documentary requirements ``may
not infringe on a State's power to set criteria concerning what
categories of individuals are eligible to obtain a driver's license or
personal identification from that State.'' The driver's license
provision included in the final bill will not do much to better secure
the license, and will continue to allow illegal immigrants to obtain
such documentation.
As I have said, there are a number of immigration-related provisions
in the conference report that will make a difference, including the
section of the bill that requires in-person interviews of non-immigrant
visa applicants, an authorization for an increase in consular officer
positions, and others. But we also had an opportunity to include other
security-related immigration reforms, and we failed. I will work in the
109th Congress to ensure their consideration, and the consideration of
other important immigration reform measures. Such consideration is
important to the future of our country, from a security perspective and
from an economic perspective, and the course we take over the next year
or two will, in part, contribute to our success at preventing future
terrorist attacks and shape the future of our Nation. I will work to
get it right and look forward to working with my colleagues on all of
these important issues.
As I mentioned, one bright spot in the bill before us today is title
VI, which provides new tools to law enforcement to investigate and
prosecute terrorist crimes. Title VI includes about half of the
provisions of the Tools to Fight Terrorism Act, S. 2679, an omnibus
antiterrorism bill that I introduced earlier this year with several
other members of the Judiciary Committee and the Senate leadership.
Obviously, I am pleased that these important provisions are included in
the final legislation.
Subtitles A and F through K of title VI of the conference report
mirror parallel provisions in the Tools to Fight Terrorism Act. And
TFTA itself consists of all or part of 11 other bills that currently
are pending in the House and Senate. Collectively, these other bills
have been the subject of 9 separate
[[Page S11994]]
hearings before House and Senate committees and have been the subject
of 4 separate committee reports. In addition, the entire TFTA was
reviewed in a September 13 hearing before the Senate Subcommittee on
Terrorism, which heard testimony from Justice Department witnesses
Barry Sabin, Chief of the counterterrorism Section of the
Criminal Division, and Dan Bryant, Assistant Attorney General for the
Office of Legal Policy, as well as George Washington University law
professor Jonathan Turley.
These hearings and reports provide a substantial legislative backdrop
to title VI of the present bill. The statement that follows is my
attempt to provide some guide to navigating this legislative thicket.
Of course, one might well ask whether it is an inherent contradiction
to rely on legislative history supplied by a judicial conservative,
since judicial conservatives tend not to believe in legislative
history. The short answer would be that in moments of litigation
crisis, every lawyer tends to believe in whatever talismans are
available. One might as well help him find them. With that disclaimer,
I offer the following effort to illuminate the origins and objectives
of the TFTA provisions in title VI.
Subtitle A, section 6001, Lone-Wolf FISA Authority ``Moussaoui Fix,''
this section amends FISA to allow orders for surveillance of foreign
visitors to the U.S. who appear to be involved in international
terrorism but are not affiliated with a known terror group. The need
for this provision is explained in Senate Committee Report No. 108-40,
which accompanies a bill that Senator Schumer and I introduced at the
beginning of this Congress. I quote the relevant passages from that
report at length:
The September 11, 2001 terrorist attacks on the people of
the United States underscored the need for this legislation.
Several weeks before those attacks, federal law enforcement
agents identified one of the participants in that conspiracy
as a suspected international terrorist. These agents sought
to obtain a FISA warrant to search his belongings. One of the
principal factors that prevented the issuance of such a
warrant was FISA's requirement that the target be an agent of
a foreign power. Even if federal agents had been able to
demonstrate that this person was preparing to commit an act
of international terrorism, based on the suspicious conduct
that had first brought him to the attention of authorities,
the agents would not have been able to obtain a warrant to
search him absent a link to a foreign power. As a result,
these federal agents spent three critical weeks before
September 11 seeking to establish this terrorist's tenuous
connection to groups of Chechen rebels--groups for whom we
now know this terrorist was not working.
It is not certain that a search of this terrorist would
necessarily have led to the discovery of the September 11
conspiracy. We do know, however, that information in this
terrorist's effects would have linked him to two of the
actual September 11 hijackers, and to a high-level organizer
of the attacks who was captured in 2002 in Pakistan. And we
do know that suspending the requirement of a foreign-power
link for lone-wolf terrorists would have eliminated the major
obstacle to federal agents' investigation of this terrorist--
the need to fit this square peg into the round hole of the
current FISA statute.
FISA allows a specially designated court to issue an order
authorizing electronic surveillance or a physical search upon
probable cause that the target of the warrant is ``a foreign
power or an agent of a foreign power.'' 50 U.S.C. Sec.
1805(a)(3)(A), 1824(a)(3)(A). The words ``foreign power'' and
``agent of a foreign power'' are defined in 1801 of FISA.
``Foreign power'' includes ``a group engaged in international
terrorism or activities in preparation therefor,''
1801(a)(4), and ``agent of a foreign power'' includes any
person who ``knowingly engages in sabotage or international
terrorism, or activities that are in preparation therefor,
for or on behalf of a foreign power.'' 1801(b)(2)(C).
Requiring that targets of a FISA warrant be linked to a
foreign government or international terrorist organization
may have made sense when FISA was enacted in 1978; in that
year, the typical FISA target was a Soviet spy or a member of
one of the hierarchical, military-style terror groups of that
era. Today, however, the United States faces a much different
threat. The United States is confronted not only by specific
groups or governments, but by a movement of Islamist
extremists. This movement does not maintain a fixed structure
or membership list, and its adherents do not always advertise
their affiliation with this cause. Moreover, in response to
the United States' efforts to fight terrorism around the
world, this movement increasingly has begun operating in a
more decentralized manner.
The origins and evolution of the Islamist terrorist threat,
and the difficulties posed by FISA's current framework, were
described in detail by Spike Bowman, the Deputy General
Counsel of the FBI, at a Senate Select Committee on
Intelligence hearing on the predecessor to S. 113. Mr. Bowman
testified:
``When FISA was enacted, terrorism was very different from
what we see today. In the 1970s, terrorism more often
targeted individuals, often carefully selected. This was the
usual pattern of the Japanese Red Army, the Red Brigades and
similar organizations listed by name in the legislative
history of FISA. Today we see terrorism far more lethal and
far more indiscriminate than could have been imagined in
1978. It takes only the events of September 11, 2001, to
fully comprehend the difference of a couple of decades. But
there is another difference as well. Where we once saw
terrorism formed solely around organized groups, today we
often see individuals willing to commit indiscriminate acts
of terror. It may be that these individuals are affiliated
with groups we do not see, but it may be that they are simply
radicals who desire to bring about destruction.
``[W]e are increasingly seeing terrorist suspects who
appear to operate at a distance from these [terrorists]
organizations. In perhaps an oversimplification, but
illustrative nevertheless, what we see today are (1) agents
of foreign powers in the traditional sense who are associated
with some organization or discernible group (2) individuals
who appear to have connections with multiple terrorist
organizations but who do not appear to owe allegiance to any
one of them, but rather owe allegiance to the International
Jihad movement and (3) individuals who appear to be
personally oriented toward terrorism but with whom there is
no known connection to a foreign power.
``This phenomenon, which we have seen . . . growing for the
past two or three years, appears to stem from a social
movement that began at some imprecise time, but certainly
more than a decade ago. It is a global phenomenon which the
FBI refers to as the International Jihad Movement. By way of
background we believe we can see the contemporary development
of this movement, and its focus on terrorism, rooted in the
Soviet invasion of Afghanistan.
``During the decade-long Soviet/Afghan conflict, anywhere
from 10,000 to 25,000 Muslim fighters representing some
forty-three countries put aside substantial cultural
differences to fight alongside each other in Afghanistan. The
force drawing them together was the Islamic concept of 'umma'
or Muslim community. In this concept, nationalism is
secondary to the Muslim community as a whole. As a result,
Muslims from disparate cultures trained together, formed
relationships, sometimes assembled in groups that otherwise
would have been at odds with one another[,] and acquired
common ideologies.
``Following the withdrawal of the Soviet forces in
Afghanistan, many of these fighters returned to their
homelands, but they returned with new skills and dangerous
ideas. They now had newly acquired terrorist training as
guerrilla warfare [had been] the only way they could combat
the more advanced Soviet forces.
``Information from a variety of sources repeatedly carries
the theme from Islamic radicals that expresses the opinion
that we just don't get it. Terrorists world-wide speak of
jihad and wonder why the western world is focused on groups
rather than on concepts that make them a community.
``The lesson to be taken from [how Islamist terrorists
share information] is that al-Qaida is far less a large
organization than a facilitator, sometimes orchestrator of
Islamic militants around the globe. These militants are
linked by ideas and goals, not by organizational structure.
``The United States and its allies, to include law
enforcement and intelligence components worldwide[,] have had
an impact on the terrorists, but [the terrorists] are
adapting to changing circumstances. Speaking solely from an
operational perspective, investigation of these individuals
who have no clear connection to organized terrorism, or
tenuous ties to multiple organizations, is becoming
increasingly difficult.
``The current FISA statute has served the nation well, but
the International Jihad Movement demonstrates the need to
consider whether a different formulation is needed to address
the contemporary terrorist problem.''
The Committee notes that when FISA was enacted in 1978, the
Soviet invasion of Afghanistan had not yet occurred and both
Iran and Iraq were considered allies of the United States.
The world has changed. It is the responsibility of Congress
to adapt our laws to these changes, and to ensure that law
enforcement and intelligence agencies have at their disposal
all of the tools they need to combat the terrorist threat
currently facing the United States. The Committee concludes
that enactment of S. 113's modification of FISA to facilitate
surveillance of lone-wolf terrorists would further Congress's
fulfillment of this responsibility.
[In a separate statement of additional views on S. 113,
Senator Feingold expresses concerns about the
constitutionality of allowing surveillance of lone-wolf
terrorists pursuant to FISA. He suggests that by allowing
searches of persons involved in international terrorism
without regard to whether such persons are affiliated with
foreign powers, S. 113 ``writes out of the statute a key
requirement necessary to the lawfulness of such searches.''
In order to address Senator Feingold's concerns, the
Committee attaches as Appendix E to this report a letter
presenting the views of the U.S. Department of Justice on S.
2586, the predecessor bill to S. 113.
[[Page S11995]]
The Department of Justice's letter provides a detailed
analysis of the relevant Fourth Amendment jurisprudence,
concluding that the bill's authorization of lone-wolf
surveillance would ``satisfy constitutional requirements.''
The Department emphasizes that anyone monitored pursuant to
the lone-wolf authority would be someone who, at the very
least, is involved in terrorist acts that ``transcend
national boundaries in terms of the means by which they are
accomplished, the persons they appear intended to coerce or
intimidate, or the locale in which their perpetrators operate
or seek asylum.'' (Quoting 50 U.S.C. Sec. 1801(c)(3).)
Therefore, a FISA warrant obtained pursuant to this authority
necessarily would ``be limited to collecting foreign
intelligence for the international responsibilities of the
United States, and the duties of the Federal Government to
the States in matters involving foreign terrorism.'' (Quoting
United States v. Dugan, 743 F.2d 59, 73 (2d Cir. 1984).) The
Department concludes ``the same interests and considerations
that support the constitutionality of FISA as it now stands
would provide the constitutional justification for S. 2568.''
The Department additionally notes that when FISA was enacted
it was understood to allow surveillance of groups as small as
two or three persons. The Department concludes that ``[t]he
interests that the courts have found to justify the
procedures of FISA are not likely to differ appreciably as
between a case involving such a group . . . and a case
involving a single terrorist.'']
A provision substantially the same as section 6001 first was
introduced as a bill, S. 2586, by Senators Schumer and me on June 5,
2002. The Senate Intelligence Committee held a hearing on S. 2586 on
July 31, 2002. Witnesses included James Baker, Counsel for Intelligence
Policy with the Office of Intelligence and Policy Review, Department of
State; Marion ``Spike'' Bowman, Deputy General Counsel, National
Security Law Unit, Office of the General Counsel, FBI; and Fred Manget,
Deputy General Counsel, CIA.
The same provision was reintroduced in the 108th Congress by me and
Senator Schumer as S. 113 on January 9, 2003. S. 113 was unanimously
reported by the Judiciary Committee on March 11, 2003. The Committee
issued Report No. 108-40 for S. 113 on April 29, 2003. S. 113 was
approved by the Senate by 90-4 on May 8, 2003. The same provision also
was included in H.R. 3179, which was introduced by House Judiciary
Chairman Sensenbrenner and House Intelligence Chairman Goss on
September 25, 2003. The House Subcommittee on Crime, Terrorism, and
Homeland Security held a hearing on H.R. 3179 on May 18, 2004.
Witnesses at the hearing included Dan Bryant, Assistant Attorney
General, Office of Legal Policy, Department of Justice; Thomas
Harrington, Deputy Assistant Director, FBI; and Bob Barr, former
Congressman. The same provision also was introduced as H.R. 3552 by
Representative King on November 20, 2003.
Subtitle F, section 6501, Sharing Grand-Jury Information With State
and Local Governments, this section amends current law to authorize the
sharing of grand-jury information with appropriate state and local
authorities.
I do not think that one can overstate the importance of information
sharing, of tearing down the walls that prevent different parts of the
Government from exchanging intelligence and working together in the war
on terror. A graphic illustration of the importance of streamlined
information sharing is provided by another pre-September 11
investigation. Like the Moussaoui case, this investigation also came
tantalizing close to substantially disrupting or even stopping the 9/11
plot, and also ultimately was blocked by a flaw in our antiterror laws.
The investigation to which I refer involved Khalid Al Midhar, one of
the suicide hijackers of American Airlines Flight 77, which was crashed
into the Pentagon, killing 58 passengers and crew and 125 people on the
ground.
An account of the investigation of Midhar is provided in the 9/11
Commission's staff Statement No. 10. That statement notes as follows:
During the summer of 2001 [an FBI official] . . . found [a]
cable reporting that Khalid Al Mihdhar had a visa to the
United States. A week later she found the cable reporting
that Mihdhar's visa application--what was later discovered to
be his first application--listed New York as his destination.
. . . The FBI official grasped the significance of this
information.
The FBI official and an FBI analyst working the case
promptly met with an INS representative at FBI Headquarters.
On August 22 INS told them that Mihdhar had entered the
United States on January 15, 2000, and again on July 4, 2001.
. . . The FBI agents decided that if Mihdhar was in the
United States, he should be found.
These alert agents immediately grasped the danger that Khalid Al
Midhar posed to the United States, and immediately initiated an effort
to track him down. Unfortunately, at the time, the law was not on their
side. The Joint Inquiry Report of the House and Senate Intelligence
Committees describes what happened next:
Even in late August 2001, when the CIA told the FBI, State,
INS, and Customs that Khalid al-Mihdhar, Nawaf al-Hazmi, and
two other ``Bin Laden-related individuals'' were in the
United States, FBI Headquarters refused to accede to the New
York field office recommendation that a criminal
investigation be opened, which might allow greater resources
to be dedicated to the search for the future hijackers. . . .
FBI attorneys took the position that criminal investigators
``CAN NOT'' (emphasis original) be involved and that criminal
information discovered in the intelligence case would be
``passed over the wall'' according to proper procedures. An
agent in the FBI's New York field office responded by e-mail,
saying: ``Whatever has happened to this, someday someone will
die and, wall or not, the public will not understand why we
were not more effective in throwing every resource we had at
certain problems.''
The 9/11 Commission staff report assesses the ultimate impact of
these legal barriers:
Many witnesses have suggested that even if Mihdhar had been
found, there was nothing the agents could have done except
follow him onto the planes. We believe this is incorrect.
Both Hazmi and Mihdhar could have been held for immigration
violations or as material witnesses in the Cole bombing case.
Investigation or interrogation of these individuals, and
their travel and financial activities, also may have yielded
evidence of connections to other participants in the 9/11
plot. In any case, the opportunity did not arise.
Congress must do what it can now to make sure that something like
this does not happen again--that arbitrary, seemingly minor
bureaucratic barriers are not allowed to undermine our best leads
toward uncovering an attack on the United States. Section 6501 is a
substantial step in that direction.
The change made be section 6501 previously was enacted by the
Homeland Security Act, but that change never went into effect because
the Federal Rule of Criminal Procedure amended by the HSA was revised
by the Supreme Court shortly after the enactment of the HSA, and the
amendment made by HSA presupposed the earlier text of the Federal rule.
The same provisions were introduced as part of S. 2599 by Senators
Chambliss and me on June 24, 2004.
Subtitle G, sections 6602 and 6603, and section 5402, Receiving
Military-Type Training from and Providing Material Support to
Terrorists, section 6602 makes it a crime to receive military-type
training from a foreign terrorist group, and section 5402 makes aliens
who have received such training deportable from the United States.
Section 6603 broadens the jurisdictional bases of the material-support
statute. It also clarifies the definitions of the terms ``personnel,''
``training,'' and ``expert advice or assistance'' in response to
concerns expressed in recent court decisions. Furthermore, this section
clarifies the knowledge required to violate the statute, and specifies
that nothing contained in the statute shall be construed to abridge
free-speech rights. All of these sections apply extraterritorially to
U.S. nationals, permanent residents, stateless persons whose habitual
residence is the United States, and persons who are brought into or
found in the United States.
In the final version of this legislation, all immigration- and
border-related provisions were placed in a new title V, and thus the
part of the military-type-training provision making terror trainees
deportable ended up in that title as well, as section 5402. The new
5402, rather than referencing the definition of military-type training
in 6602, simply duplicates the key part of that definition, a
precaution against the event that the now-distant 6602 be repealed or
never enacted.
Nevertheless, despite their now far-flung nature, these sections
still should be read together. Thus 2339D(c)'s definitions of ``serious
bodily injury'' and ``critical infrastructure'' should guide the use of
those terms in 5402, even though, unlike the definition of ``military
type training,'' those definitions are not copied in the deportation
section. The extraterritorial scope of 6602, as articulated in
2339D(b), also should
[[Page S11996]]
inform the application of 5402. The deportation provision is
articulated in terms of conduct, which is the same thing everywhere--
rather than offenses--which are a particular creature of each
jurisdiction. And obviously, Congress is just as anxious to remove from
this country those aliens who trained at an al-Qaida camp in
Afghanistan as those who trained in the United States.
In two key respects, however, the deportation provision operates
differently than the criminal provision. First, the knowledge
requirement imposed by the second sentence of 2339D(a) was not imposed
in 5402. While scienter is a traditional part of a criminal offense, it
was not thought a necessary consideration in deciding which alien
visitors should be allowed to remain in this country. If someone
trained at a terrorist camp, they should be removed forthwith,
regardless of what they claim to have known about their host terror
group. Second, 5402 will apply immediately at the time that deportation
proceedings are initiated, regardless of the date of the triggering
training. As the Supreme Court has noted, deportation ``looks
prospectively to the respondent's right to remain in this country in
the future.'' INS v. Lopez-Mendoza, 468 U.S. at 1038. Under 5402, the
only thing that need have occurred ``at the time the training was
received'' is that the training or sponsoring organization have been
defined as a terrorist organization. Since there is no reasonable
``reliance'' on any U.S. law whatsoever in attending an al-Qaida or
other terrorist training camp, 5402 applies regardless of when the
training was received, so long as the group was defined at that time as
a terrorist organization.
The animating example behind this provision is the alien visitor in
the United States who is discovered to have attended an al-Qaida camp
in Afghanistan in the summer of 2001. In the judgment of Congress, such
a person is a danger to the United States. And under 5402, that person,
once discovered, will be immediately deportable.
The Justice Department testified in favor of a provision similar to
section 6602 at the Terrorism Subcommittee's hearing on the TFTA
earlier this year. The joint statement of Messrs. Sabin and Bryant
notes that:
It is critical that the United States stem the flow of
recruits to terrorist training camps. A danger is posed to
the vital foreign policy interests and national security of
the United States whenever a person knowingly receives
military-type training from a designated terrorist
organization or persons acting on its behalf. Such an
individual stands ready to further the malicious intent of
the terrorist organization through terrorist activity that
threatens the security of United States nationals or the
national security of the United States. Moreover, a trainee's
mere participation in a terrorist organization's training
camp benefits the organization as a whole. For example, a
trainee's participation in group drills at a training camp
helps to improve both the skills of his fellow trainees and
the efficacy of his instructors' training methods.
Additionally, by attending a terrorist training camp, an
individual lends critical moral support to other trainees and
the organization as a whole, support that is essential to the
health and vitality of the organization.
And George Washington University law professor Jonathan Turley had
the following to say about TFTA's parallel provision to section 6602 in
his testimony before the Terrorism Subcommittee:
This proposal would fill a gap in our laws revealed by
recent cases, like that of Jose Padilla, where citizens have
trained at terrorist camps. . . . The proposed crime has been
narrowly tailored to require a clear knowledge element as
well as a reasonable definition of military-type training.
The United States has an obvious interest in criminalizing
such conduct and to deter citizens who are contemplating
such training. In my view, it raises no legitimate issue
of free association or free speech given the criminal
nature of the organization. Most importantly, given the
use of these camps to recruit and indoctrinate such
citizens as Padilla and John Walker Lindh, this new
criminal offense is responsive to a clear and present
danger for the country.
With regard to section 6603, the Justice Department had the following
to say about the parallel provision in TFTA at the Terrorism
Subcommittee hearing earlier this year:
The [provision] . . . improves current law by clarifying
several aspects of the material support statutes. This is
another key tool in preventing terrorism. As the Department
of Justice has previously indicated, ``a key element of the
Department's strategy for winning the war against terrorism
has been to use the material support statutes to prosecute
aggressively those individuals who supply terrorists with the
support and resources they need to survive . . . . The
Department seeks to identify and apprehend terrorists before
they can carry out their plans, and the material support
statutes are a valuable tool for prosecutors seeking to bring
charges against and incapacitate terrorists before they are
able to cause death and destruction.''
Professor Turley, in his Terrorism Subcommittee testimony on TFTA,
said of the parallel section to 6603 that ``[t]his proposal would
actually improve the current Federal law by correcting gaps and
ambiguities that have led to recent judicial reversals. In that sense,
the proposal can be viewed as a slight benefit to civil liberties by
removing a dangerous level of ambiguity in the law.''
The need for a stronger material-support statute and its application
to terrorist training camps were the subject of a hearing before the
Senate Judiciary Committee on May 5, 2004. Witnesses included Chris
Wray, Assistant Attorney General, Criminal Division, Department of
Justice; Dan Bryant, Assistant Attorney General, Office of Legal
Policy, Department of Justice; Gary Bald, Assistant Director,
Counterterrorism Division, FBI; David Cole, law professor, Georgetown
University Law Center; and Paul Rosenzweig, Senior Legal Research
Fellow, Heritage Foundation.
Subtitle G, Section 6604, Concealment of Terrorist Financing, this
section amends current law to prohibit concealing having provided
financing while knowing that it has been or will be provided to
terrorists. This provision first appeared as part of S. 1837, which was
introduced by Senator Grassley on November 6, 2003. The Senate
Judiciary Committee held a hearing on the need to better combat
terrorist financing on November 20, 2002. Witnesses included Robert J.
Conrad, U.S. Attorney for the Western District of North Carolina; Jimmy
Gurule, Under Secretary for Enforcement, Department of Treasury; David
Aufhauser, General Counsel, Department of Treasury; Nathan Lewin, Lewin
& Lewin, LLP; Allan Gerson, Professorial Lecturer In Honors, George
Washington University; Jonathan Winer, Alston & Bird, LLP, member,
Council on Foreign Relations; and Salam Al-Marayati, Executive
Director, Muslim Public Affairs Council.
Subtitle H, section 6702, Punishment for Hoaxes about Terrorism or
Deaths of U.S. Soldiers, this section imposes criminal penalties for
conveying false or misleading information, perpetrating hoaxes, about
terrorist crimes or the death or injury of a U.S. soldier under
circumstances where such information may reasonably be believed.
The Justice Department has commented on the harm caused by false
information and terrorist hoaxes. In its TFTA testimony on a parallel
provision to 6702 earlier this year, the Department noted:
Since September 11, hoaxes have seriously disrupted
people's lives and needlessly diverted law-enforcement and
emergency-services resources. In the wake of the anthrax
attacks in the fall of 2001, for example, a number of
individuals mailed unidentified white powder, intending for
the recipient to believe it was anthrax. Many people were
inconvenienced, and emergency responders were forced to waste
a great deal of time and effort. Similarly, in a time when
those in uniform are making tremendous sacrifices for the
country, several people have received hoax phone calls
reporting the death of a loved one serving in Iraq or
Afghanistan.
And Professor Turley, also at the Terrorism Subcommittee hearing on
TFTA, commented on the provision similar to 6702:
This new provision would create a serious deterrent to a
type of misconduct that routinely places the lives of
emergency personnel at risk and costs millions of dollars in
unrecouped costs for the federal and state governments. Since
a terrorist seeks first and foremost to terrorize, there is
precious [little] difference between a hoaxster and a
terrorist when the former seeks to shut down a business or a
community with a fake threat. . . . This provision responds
to the increase in this form of insidious misconduct and
correctly defines it as criminal conduct.
The key elements of section 6702 were introduced as H.R. 3209 in the
107th Congress by Representative Lamar Smith on November 11, 2001. H.R.
3209 was the subject of a hearing before the House Subcommittee on
Crime, Terrorism, and Homeland Security on November 7, 2001. Witnesses
included
[[Page S11997]]
James Jarboe, Section Chief, Counterterrorism Division, Domestic
Terrorism, FBI; and James Reynolds, Chief, Terrorism and Violent Crime
Section, Criminal Division, Department of Justice. H.R. 3209 was
reported by the House Judiciary Committee on November 29, 2001. The
Judiciary Committee issued Report No. 107-306 for H.R. 3209 on the same
day. H.R. 3209 was unanimously approved by the House of Representatives
on December 12, 2001.
A provision similar to 6702 also was introduced as H.R. 1678 in the
108th Congress by Representative Lamar Smith on April 8, 2003. H.R.
1678 was the subject of a hearing before the House Subcommittee on
Crime, Terrorism, and Homeland Security on July 10, 2003. Witnesses
included Susan Brooks, the U.S. Attorney for the Souther District of
Indiana; James McMahon, Superintendent, New York State Police; and
Danny Hogg, a target of a war-time hoax about a family member serving
in Iraq. H.R. 1678 was ordered reported by the House Judiciary
Committee by voice vote on May 12, 2004. The Judiciary Committee issued
Report No. 108-505 for H.R. 1678 on May 20, 2004. The key provisions of
section 6702 also were introduced as S. 2204 by Senator Hatch on March
11, 2004.
Subtitle H, section 6703, Increased Penalties for Obstruction of
Justice in Terrorism Cases, this section increases from 5 years to 8
years the penalty for obstruction of justice in terror investigations.
It also instructs the Sentencing Commission to increase the guidelines
range for making false statements in relation to a terrorism
investigation. A provision similar to section 6703, albeit increasing
the penalty to 10 years instead of just 8, has in the past been
included as part of the above-described anti-hoax bills.
Subtitle I, sections 6802 and 6803, Expanded WMD Prohibitions,
section 6802 expands the jurisdictional bases and scope of existing
prohibitions on use of weapons of mass destruction, and includes
chemical weapons within the prohibition for the first time. Section
6803 amends the Atomic Energy Act to more broadly prohibit directly and
willfully participating in the development or production of any special
nuclear material or atomic weapon outside of the United States. This
section also makes it a crime to participate in or provide material
support to a nuclear weapons program, or other weapons of mass
destruction program, of a designated terrorist organization or state
sponsor of terrorism. And the offense created by this provision applies
extraterritorially.
In his TFTA testimony about parallel provisions to sections 6802 and
6803 before the Terrorism Subcommittee earlier this year, George
Washington University law professor Jonathan Turley stated:
[Section 6802, the WMD-statute provision] would close
current loopholes in the interest of national security and
does not materially affect civil liberty interests.
[Section 6803] would criminalize the participation in
programs involving special nuclear material, atomic weapons,
or weapons of mass destruction outside of the United States.
This new crime with extraterritorial jurisdiction is an
obvious response to recent threats identified by this country
and other allies like Pakistan. The obvious value of such a
law would be hard to overstate. . . . It is important for the
purposes of our extraterritorial enforcement efforts to have
a specific crime on the books to address this form of
misconduct.
These sections are substantially the same as H.R. 2939, which was
introduced by Representative Forbes on July 25, 2003, and S. 2665,
which was introduced by Senator Cornyn on July 15, 2004.
Subtitle J, sections 6901-11, Prevention of Terrorist Access to
Special Weapons, this subtitle is designed to deter the unlawful
possession and use of certain weapons, Man-Portable Air Defense
Systems, MANPADS, atomic weapons, radiological dispersal devices, and
the variola virus, smallpox, whose potential misuse are among the most
serious threats to homeland security. MANPADS are portable,
lightweight, surface-to-air missile systems designed to take down
aircraft. Typically they are able to be carried and fired by a single
individual. They are small and thus relatively easy to conceal and
smuggle. A single attack could kill hundreds of persons in the air and
many more on the ground. Atomic weapons or weapons designed to release
radiation, ``dirty bombs,'' could be used by terrorists to inflict
enormous loss of life and damage to property and the environment.
Variola virus is the causative agent of smallpox, an extremely serious,
contagious, and often fatal disease. Variola virus is classified by the
CDC as one of the biological agents that poses the greatest potential
threat for public-health impact and has a moderate to high potential
for large-scale dissemination. There are no legitimate private uses for
these weapons.
Current law allows a maximum penalty of only 10 years in prison for
the unlawful possession of MANPADS or an atomic weapon. No statute
criminalizes mere possession of dirty bombs. Knowing, unregistered
possession of the variola virus is subject only to a maximum penalty of
5 years.
Sections 6903-06 make unlawful possession of MANPADS, atomic weapons,
radiological devices, or variola virus a crime with a mandatory minimum
sentence of 25 years to life. Use, attempts to use, or possession and
threats to use these weapons are a crime with a mandatory minimum
sentence of 30 years to life. Use of these weapons resulting in death
is subject to a mandatory minimum sentence of life imprisonment. These
penalties should especially help to deter middlemen and facilitators
who are essential to the transfer of these weapons.
Section 6907 amends current law to add the criminal offenses created
by this subtitle as federal wiretap predicates. Section 6908 amends
current law to include these new offenses in the definition of
``Federal crime of terrorism.'' Section 6909 amends current law to
include these new offenses in the definition of ``specified unlawful
activity'' for purposes of the money laundering statute. And section
6910 amends the Arms Export Control Act by adding the offenses created
by this subtitle to the provision specifying crimes for which a
conviction or indictment is a ground for denying an arms-export
application.
In his Terrorism Subcommittee testimony on TFTA earlier this year,
Professor Turley said the following about a provision parallel to
subtitle J:
Given the enormous threats to our country from such
weapons, these increased penalties are manifestly reasonable.
. . . While it is certainly possible that a defendant could
be in possession of a MANPADS as part of arms trafficking or
some other motive than terrorism, this is clearly one of the
most likely forms of terrorist conduct.
Subtitle J is the same as S. 2664, which was introduced by Senator
Cornyn on July 15, 2004.
Subtitle K, section 6952, Presumption of No Bail for Terrorists, this
section would add terrorist offenses to the list of offenses, such as
drug crimes, that are subject to the statutory presumption of pretrial
detention. Under current law, a criminal suspect will be denied bail in
Federal court if the Government shows that there is a serious risk that
the suspect will flee, obstruct justice, or injure or threaten a
witness or juror. The judge must presume this showing is present if the
suspect is charged with a crime of violence, a drug crime carrying a
potential sentence of 10 years or more, any crime that carries a
potential sentence of life or the death penalty, or the suspect
previously has been convicted of two or more such offenses. This
section would add terrorist offenses that are subject to a maximum
penalty of at least 10 years to this list, judges would be required to
presume that facts requiring a denial of bail are present. This is only
a presumption, the terror suspect still could attempt to show that he
is not a flight risk or potential threat to jurors or witnesses.
The Justice Department testified as to the importance of this
provision at the Terrorism Subcommittee hearing on TFTA:
Current law provides that federal defendants who are
accused of serious crimes, including many drug offenses and
violent crimes, are presumptively denied pretrial release
under 18 U.S.C. Sec. 3142(e). But the law does not apply this
presumption to those charged with many terrorism offenses. To
presumptively detain suspected drug traffickers and violent
criminals before trial, but not suspected terrorists, defies
common sense.
This omission has presented authorities real obstacles to
prosecuting the war on terrorism, as Michael Battle, U.S.
Attorney for the Western District of New York, testified
before this subcommittee on June 22. In the recent
``Lackawanna Six'' terrorism case in
[[Page S11998]]
his district, prosecutors moved for pre-trial detention of
the defendants, most of whom were charged with (and
ultimately pled guilty to) providing material support to al
Qaeda. It was expected that the defendants would oppose the
motion. What followed was not expected, however. Because the
law does not allow presumptive pre-trial detention in
terrorism cases, prosecutors had to participate and prevail
in a nearly three-week hearing on the issue of detention, and
were forced to disclose a substantial amount of their
evidence against the defendants prematurely, at a time when
the investigation was still ongoing. Moreover, the presiding
magistrate judge did in fact authorize the release of one
defendant, who, it was later learned, had lied to the FBI
about the fact that he had met with Usama Bin Laden in
Afghanistan. The Lackawanna Six case illustrates the real-
life problems the absence of presumptive pre-trial
detention has posed to law enforcement. But this
shortcoming in the law has also enabled terrorists to flee
from justice altogether. For example, a Hezbollah
supporter was charged long ago with providing material
support to that terrorist organization. Following his
release on bail, he fled the country.
The suspect described above eventually was recaptured by the United
States six years after his escape. During that time, he was not a
participant in a terrorist attack against the United States, but he
could have been.
Law Professor Jonathan Turley also commented on the legislative
ancestor of section 6952 in his testimony at the Terrorism Subcommittee
hearing on TFTA. He stated:
[Section 6952] would create a presumption against bail for
accused terrorists. Under this amendment, such a presumption
could be rebutted by the accused, but the court would begin
with a presumption that the accused represents a risk of
flight or danger to society. This has been opposed by various
groups, who point to the various terrorist cases where
charges were dismissed or rejected, including the recent
Detroit scandal where prosecutorial abuse was strongly
condemned by the Court. I do not share the opposition to this
provision because I believe that, while there have been
abuses in the investigation and prosecution of terrorism
cases, the proposed change sought by the Justice Department
is neither unconstitutional nor unreasonable.
This proposal would not impose a categorical denial of bail
but a presumption against bail in terrorism cases. Congress
has a clearly reasonable basis for distinguishing terrorism
from other crimes in such a presumption. In my view, this
would be clearly constitutional.
While I have been critical of the policies of Attorney
General John Ashcroft, I do not share the view of some of my
colleagues in the civil liberties community in opposition to
this change. There is currently a presumption against
pretrial release for a variety of crimes in 18 U.S.C. Sec.
3142(e), including major drug crimes. It seems quite bizarre
to have such a presumption in drug cases but not terrorism
cases.
Section 6952 is substantially the same as the main provision of H.R.
3040, which was introduced by Representative Goodlatte on September 9,
2003. I introduced the same bill as S. 1606 on September 10, 2003. S.
1606 was the subject a hearing before the Senate Subcommittee on
Terrorism, Technology, and Homeland Security on June 22, 2004.
Witnesses included Rachel Brand, Principal Deputy Assistant Attorney
General, Office of Legal Policy, Department of Justice; Michael Battle,
U.S. Attorney, Buffalo, NY; and James K. Robinson, former Assistant
Attorney General, Criminal Division, Department of Justice.
I have spent considerable time reviewing this conference report and
thoughtfully considering its provisions. I have serious reservations
and agree with the many experts in this field who have urged a more
thorough study of the intelligence community's problems and, likewise,
a careful matching of those problems to solutions. Though I appreciate
the hard work of the 9/11 Commission to help Americans understand how
9/11 happened, the Commission's recommendations--on which it spent far
less time than on the narrative it took some 18 months to assemble--are
not the final answer to the intelligence community's problems.
I intend to support this conference package, noting the improvements
that have been made since Senate consideration, but I intend to closely
monitor its implementation. I also strongly believe that Congress needs
to focus its attention next year on resolving the more difficult
problems in the intelligence community and, more broadly in the
homeland security arena, like immigration, not addressed in this
legislation. I will work with my colleagues in the House and Senate to
ensure this happens.
Mr. CORNYN. Mr. President, I rise to express my support for the
conference report accompanying S. 2845, the Intelligence Reform and
Terrorism Prevention Act of 2004. I highlight three specific terrorism
prevention provisions in the conference report, provisions on which I
have worked particularly hard to incorporate into this new bill,
provisions which I am pleased to see enacted into law. These provisions
make important improvements to our Federal criminal law, improvements
that are critical to strengthening our ability to fight and win the war
against terrorism.
The first two provisions involve strengthening our efforts to ensure
that weapons of mass destruction do not get into the hands of
terrorists. Earlier this year, I introduced two bills, S. 2664 and S.
2665. I am pleased to see that both of those bills have now largely
been adopted by the conference.
S. 2664, also known as the Prevention of Terrorist Access to
Destructive Weapons Act, can be found at Title VI, Subtitle J of the
new bill reported by the conference. This provision creates new federal
prohibitions and strengthens current federal prohibitions against the
possession of four categories of destructive items: (1) Man-Portable
Air Defense Systems, known as ``MANPADS'', (2) atomic weapons, (3)
radiological dispersal devices, known as ``dirty bombs'', and (4) the
variola virus, the virus that causes smallpox. There is no legitimate
private purpose for possessing these items. Moreover, the potential for
terrorist use of these items is among the most serious threats to our
homeland security. By prohibiting the unauthorized possession of these
items, and by imposing strong penalties on violators, these provisions
will play a major role in preventing and disrupting future terrorist
attacks, by depriving terrorists of access to some of the most highly
destructive and dangerous items civilized society has ever faced.
Specifically, these provisions would punish unlawful possession as
well as unlawful production or transfer of these items, and includes
attempts, threats, and conspiracies related to such acts. These
provisions generally impose tough, mandatory minimum sentences of 25
years, and in some cases impose sentences up to and including life
imprisonment. Tough penalties like these are appropriate for the most
dangerous threats our nation faces, and that is exactly the kind of
threat that these items pose. We may not be able to deter the most
dedicated of our terrorist enemies around the world from wanting to
harm us, but we can deter individuals who serve at lower levels in
terrorist organizations, and we can deter those who might try to profit
from terrorism by supplying terrorists with such items.
I would like to spend just a brief moment highlighting the particular
problem of MANPADS. MANPADS are lightweight, surface-to-air missile
systems designed to take down aircraft. MANPADS fire an explosive or
incendiary rocket or missile equipped with a guidance system designed
to target low-flying aircraft, typically around the time of landing or
departure. They can be carried and fired by a single individual, from a
distance. Because they are small, they are easy to conceal and smuggle.
They are relatively cheap--ranging from $25,000 to $80,000 each--take
only seconds to prepare, require minimal training, and have a flight
time of just three to ten seconds.
By some estimates, there are at least 500,000 MANPADS in circulation
around the globe. Although most MANPADS are thought to be under the
control of an established military, as many as a thousand MANPADS are
believed by some to be in the hands of al-Qaeida and other terrorist
groups. Coalition forces reportedly captured nearly 5,600 missiles
during the post-9/11 invasion of Afghanistan. Defense Secretary Donald
Rumsfeld reported last year that MANPADS ``are widely available in the
world and do have the ability to shoot down aircraft and helicopters,
and from time to time it happens in various locations.'' He said there
are ``enormous numbers'' of such weapons still in Iraq--``have to be
more than hundreds. . . . There are weapon caches all over that
country. They were using schools, hospitals, mosques to hide weapons.''
A 2000 State Department report stated that ``one of the leading
causes of
[[Page S11999]]
loss of life in commercial aviation worldwide has been from MANPADS . .
. attacks, with over 30 aircraft lost.'' According to a Congressional
Research Service report issued last year, there have been at least 36
known missile attacks on commercial planes in the last 25 years; 35 of
those incidents took place in war-torn areas, mainly in Africa. For
example, in 1983 and 1984, Angolan rebels shot down two Boeing 737s. In
the first incident, all 130 people on board died, but in the second
attack, the plane managed to land without fatalities after being hit at
an altitude of 8,000 feet. In 1998, a Boeing 727 was shot down in the
Democratic Republic of Congo, killing 41. And in November 2002, in
Mombasa, Kenya, two missiles were launched against a chartered Israeli
Boeing 767 just after take off for Tel Aviv, Israel. The pilot reported
spotting smoke trails near his plane, and some of the 261 passengers
said they heard an explosion. The attempted attack has been linked to
al-Qaida, and occurred on the same day as an al-Qaida-linked bombing of
a nearby resort hotel. Shoulder-launched missiles also brought down
several smaller aircraft during the invasion of Iraq, including a
Chinook helicopter that crashed last November, killing 16. In January,
an Air Force C-5 transport plane carrying 63 troops was struck by a
surface-to-air missile as it left Baghdad Airport, but it landed
safely.
Accordingly, MANPADS are widely recognized as one of the greatest
threats to civil aviation today. And just last year, the President
agreed with other world leaders at a G-8 conference to a series of
controls on MANPADS. S. 2664 is a critical part of the President's
effort to control and combat the proliferation of MANPADS, and I am
pleased that the conference has seen fit to incorporate the provisions
of that bill into its report.
In addition to MANPADS, S. 2664 also targets three other destructive
devices. No one questions the obvious danger posed by allowing atomic
weapons and radiological dispersion devices, or dirty bombs, to get
into the hands of terrorists. In addition, the variola virus is the
causative agent of smallpox--an extremely serious, contagious, and
often fatal disease. In fact, the Centers for Disease Control has
classified variola as one of the biological agents that poses the
greatest threat for public health impact. It has a high potential for
large-scale dissemination. Accordingly, it may be attractive to
terrorists as a biological weapon. These provisions, I am pleased to
see, have also been incorporated into the conference report.
I will just add a quick word about S. 2665, also known as the Weapons
of Mass Destruction Prohibition Improvement Act. The provisions of S.
2665 can be found at Title VI, Subtitle I of the new bill. Those
provisions generally expand current federal criminal prohibitions
against the use and proliferation of WMD, both domestically and abroad,
and fills a number of gaps in current law.
They amend the current federal weapons of mass destruction statute by
criminalizing all WMD attacks on foreign government property in the
United States, as well as U.S. government property, and expanding the
current prohibition on the use of WMD to include any acts affecting
interstate commerce in a variety of ways. They also amend the federal
biological agents and toxins law by extending the prohibition to
possession by agents of terrorist nations or terrorist organizations.
With respect to foreign WMD threats, the bill amends a provision of
the Atomic Energy Act to prohibit participation outside of the United
States in the unauthorized development as well as production of nuclear
material, and creates a new criminal code section to forbid the
provision of material support to, or any other participation in, any
WMD program of a terrorist organization or terrorist nation.
The third and final provision I want to highlight involves the
perpetration of cruel hoaxes against the families of military personnel
and terrorism hoaxes generally. I am pleased to be an original co-
sponsor of S. 2204, also known as the Stop Terrorist and Military
Hoaxes Act, and pleased to see that provisions of those bills have been
incorporated into the conference report.
It is disturbing to think that anyone would want to engage in the
false impersonation of a military officer in order to harass, terrify,
or otherwise cause mental distress to military families. I cannot
fathom why a human being would want to conduct a crank call to the
family of a member of the Armed Forces and falsely inform them that
their loved one has been killed in the line of duty.
Yet during the recent war in Iraq, that is precisely what happened.
Several families reportedly received hoax telephone calls informing
them that a family member serving the military in Iraq had been killed
or captured. Not surprisingly, the families who received these calls
were terribly distressed. It must have been a cruel experience indeed
to have to wait and work to confirm that their family member was
actually alive and safe.
Hoaxes against military families and terrorism hoaxes must be
punished, because they utilize scarce resources that need to be focused
on combating terrorism, and distract the attention of our law
enforcement and our military away from our terrorist enemies. But
that's not the only reason. Hoaxes are cruel. They are mean-spirited.
And they can be very dangerous. I want to read a portion of a letter
from one dutiful U.S. serviceman to his uncle. The letter is dated
April 18, 2003, and it reads: ``One guy died bringing me a sat. phone
so I could call Dad to let him know I was alive. It made me think of
`Saving Private Ryan.' Was it worth his life and the risk of the others
to bring me a phone? I know it was a relief to all of you to hear I was
okay. Now I feel I must make my life worth his. I don't know if I can
do that.'' No one should have to die in the line of duty in order to
correct a hoax. And no one should have to live with the emotional pain
that this serviceman so eloquently describes in this poignant letter.
Under current law, acts of impersonation are illegal only if the
person demands or obtains something of value from the victim. That does
not include military family hoaxes like the ones described here. In
addition, many terrorism hoaxes fall outside the definitions of current
law. S. 2204 fills these major gaps in the law, and I am pleased to see
these provisions incorporated into the conference report.
Mr. LAUTENBERG. Mr. President, I rise to express my approval of this
much-delayed 9/11 intelligence reform bill. As a conferee on this
important legislation, I am proud of what we produced. The terrible
consequences of the 9/11 attack will never be forgotten, but with the
passage of this bill future generations will be safer from terrorist
attack.
On a personal basis, I, like so many from my State of New Jersey and
our region, knew people who perished, families who were torn apart,
people who still feel the pain of their loss.
I want to thank Senators Collins and Lieberman, and Representatives
Hoekstra and Harman for their efforts to get a strong bill. This was a
roller coaster conference, but well worth the effort.
The 9/11 Commissioners also deserve our appreciation for their steady
leadership and thoughtful input during this process.
Last, and most importantly, I want to salute the 9/11 families for
their dedication to getting this legislation done. I especially want to
thank the Steering Committee of 9/11 Families and the so-called
``Jersey Girls.'' Had it not been for you 3 years ago, the 9/11
Commission would have never been established. And were it not for you
now, this bill would have never passed.
Mr. President, we can finally look the 9/11 families in the eye and
say: ``We have delivered.''
This 9/11 bill is the most significant piece of intelligence
legislation we have passed in 50 years.
The last major reform was the National Security Act of 1947, signed
into law by President Truman.
While the process of compromise resulted in a bill that did not adopt
all of the recommendations of the 9/11 Commission, this new law will
bring significant improvements in our intelligence system for the
better.
Mr. President, the 9/11 Commission recognized a need to have one
person in charge of our intelligence community, to prevent the kind of
miscommunica-
[[Page S12000]]
tion that occurred before 9/11. This bill addresses this important
issue by creating a Director of National Intelligence (DNI) with real
authority over America's 15 intelligence-gathering agencies.
This bill gives this intelligence director principal authority over
the estimated $40 billion intelligence budget and gives that person the
power to establish clear priorities for the intelligence community. The
bill makes clear: the buck stops with the DNI.
This bill also creates a National Counterterrorism Center that will
lead our counterterrorism efforts. It will be staffed by terrorism
experts from the CIA, FBI, and the Pentagon. The Center will coordinate
terrorism intelligence from throughout the government, breaking down
the walls that have too frequently prevented agencies from sharing
important information in a timely manner.
The bill bolsters border security, particularly improving aviation,
air cargo, and maritime security. It also strengthens border
surveillance, increases the number of border patrol agents and
immigration and customs enforcements investigators.
This bill also has some provisions to safeguard our civil liberties
by establishing a ``Privacy and Civil Liberties Oversight Board.''
Although I do not believe that this board has quite the independence
and power that I wanted, I am hopeful that the Board will help ensure
that new regulations and policies do not violate privacy rights or
civil liberties.
Mr. President, despite the bipartisan support for this bill, it has
faced a difficult road. To be honest, we were ready for a vote on
November 20. A strong majority of the conference committee approved
this bill and we were ready to go. I signed my name to the conference
report at that time.
But later that same day, we found out that the House Republican
leadership would not move forward on the bill. The reason? Because two
Republican Congressmen didn't like the conference report.
Mr. President, in my view, the delay in passing this bill was
unnecessary and unwise. Every day this bill was dragged out was a day
that made our communities less safe.
The House Republican leadership nearly snatched defeat from the jaws
of victory. But thankfully, in the end the families and the 9/11
Commission made their voices heard, and we have reached this milestone
today.
Mr. President, my home State, New Jersey, lost 700 of its citizens on
9/11. There is little we in Congress can do to heal their pain. But
today, at least we can do something to help prevent such a tragedy in
the future.
Mr. GRAHAM of Florida. Yesterday was the anniversary of Pearl Harbor,
which is remembered as one of the greatest intelligence failures in our
country's history. The desire to prevent future Pearl Harbors helped
lead to the creation of our national intelligence community in 1947.
In the 15 years since the fall of the Berlin Wall, there has been a
growing awareness that our national intelligence community is in need
of serious reform. Despite frequent reviews of the intelligence
community's failures and structural problems--including the Hart-Rudman
Commission; the Gilmore Commission; the Bremer Commission; the
Congressional Investigation of 9/11; and the 9/11--there has been
continued reluctance and resistance to reform.
Recent intelligence failures--most notably the failure to detect the
September 11 plot, and the massive intelligence failures that led us to
war in Iraq--have given new exposure to the problem and new momentum to
reform efforts. I am extremely pleased that we are now in a position to
enact serious intelligence reform legislation for the first time in
over 50 years. I consider this legislation to be one of the most
important enactments of my 18 years in the U.S. Senate. There are
several elements of this legislation which warrant more detailed
comment.
One of the most important aspects of this legislation is the element
that Senator Roberts was just discussing--the need to centralize the
intelligence agencies is not an end in itself, but a platform from
which we can move to decentralize.
As the United States military transformed itself from the military of
San Juan Hill and the World Wars, it first needed to centralize, under
the National Security Act of 1947, consolidating the secretaries of the
Army and Navy into the Department of Defense, and then to decentralize,
under the Goldwater-Nichols Act in 1986 into the joint commands of the
modern military. Our intelligence community needs to transform itself
and move from being designed around functions--such as electronic
eavesdropping, or satellite surveillance--to a focus on missions, such
as counterterrorism or counterproliferation.
This legislation makes the appropriate and necessary first step of
centralizing the intelligence community under a Director of National
Intelligence. It also lays the foundation for the next step, which is
decentralizing the intelligence community through the establishment of
mission-based intelligence centers. Two are established by statute--
Counterterrorism and Counterproliferation--and the legislation gives
the DNI the power to establish other centers, to focus on those current
or emerging threats he or she deems to be of priority importance.
Among the shortcomings referred to earlier, one of the first and
foremost is obviously an underdeveloped capacity for gathering human
intelligence. Our intelligence community has come to rely too heavily
on electronic eavesdropping and satellite surveillance, and human
intelligence has been neglected. A case could be made that both the war
in Afghanistan and the war in Iraq were the products of our inadequate
human intelligence capabilities. We must make a major effort to rebuild
our capabilities, and this legislation begins to address that problem.
One of the most important elements of a human intelligence program is
a corps of skilled and dedicated linguists. Unfortunately, while our
intelligence agencies still possess a more-than-adequate number of
Russian speakers, they lack individuals proficient in the Middle
Eastern and Central Asian languages that are of obvious current
importance. This legislation, along with language in the Defense
authorization bill that establishes a Reserve Officers Training Corps
counterpart for the intelligence community, helps to address this
problem as well.
The third intelligence-related item deserving particular attention is
the issue of excessive classification. I want to comment senator Wyden
and Senator Lott, who were very involved in this aspect of the
legislation. Our intelligence community has developed an unhealthy
obsession with secrecy, and this has often led to bad analysis and bad
decisions. This obsession with secrecy prevented intelligence agencies
that had knowledge of various elements of the 9/11 plot from
``connecting the dots'' and realizing that a major terrorist operation
was being plotted on American soil. This obsession with secrecy
contributed to inadequate scrutiny of intelligence relating to Iraq,
and as a result we went to war because of weapons that did not exist,
and terrorist connections that appear to have been imaginary.
This obsession with secrecy poses a serious and continuing threat to
our national security. As the late Senator Daniel Patrick Moynihan
said, ``Secrecy is for losers.'' If we do not want to lose in our
struggle with the various threats we face today, we must abandon this
unhealthy obsession. This legislation addresses this problem by
directing that more rational guidelines for intelligence classification
be established, and that an independent board be empowered to review
these decisions. This is an important first step toward abandoning this
dangerous obsession, and making sure that secrecy decisions are made
for reasons of national security, rather than agencies trying to bury
their mistakes.
Madam President, what we are doing today is an important step, but it
is not by any means the last step. Some of these steps are rather
tangential to the issue of intelligence reform. For example, this
legislation includes a provision requiring face-to-face interviews with
visa applicants. If we are to implement this provision effectively we
must seriously consider increasing the capacity of our consular
service. Currently, in Brazil, visa applicants must travel to one of
three large cities in order to get a visa for travel to the United
States.
Since Brazil is the size of the continental United States, and these
three
[[Page S12001]]
cities are located close together, this is the equivalent of telling
Americans who wish to secure a visa to Mexico that they must first
travel to either Dallas, Chicago, or Cleveland. While it is probably
not cost-effective to open new consulates in every city that might need
visa services, we should at lest open more visa offices, so that these
interviews can be conducted without unduly inconveniencing our foreign
guests.
This legislation also includes a section addressing the United
States' relationship with Saudi Arabia. It points out, and I quote,
that ``the Government of Saudi Arabia has not always responded to
promptly or fully to United States requests for assistance in the
global war on Islamist terrorism,'' and particularly cities the Saudi
government's inattention to the problem of terrorist financing. I would
add that we have compelling evidence to believe that Saudi interests
actually played a role in financing insurgents in Iraq and earlier the
9/11 hijackers. The extent of Saudi involvement in 9/11 was detailed in
a twenty-seven page section of our 2002 joint House-Senate Intelligence
Committees report on the attacks of September 11, 2001. Unfortunately,
every one of those twenty-seven pages was classified. This means that
the American people have, in that and other instances, been denied
important information about our relationship with Saudi Arabia. I hope
that this intelligence reform legislation calling for more dialogue on
the U.S.-Saudi relationship is heeded, and that increased attention to
this relationship will lead to greater transparency and candor.
Madam President, as I said in my farewell speech yesterday, in a
quote from Winston Churchill, ``This is not the end, nor is it the
beginning of the end, but it is perhaps the end of the beginning''.
This Churchillian wisdom also applies to what we are accomplishing
today. There is more that still needs to be done as we move beyond the
end of the beginning of intelligence reform.
Let me start with the President's responsibilities. The President
will have the responsibility for making a series of critical
appointments, and he must appoint creative, dynamic and extremely hard-
working people who can be effective in the challenging new roles that
we are creating. He must also ensure that the people he appoints
promote a value system that is conducive to open, honest and effective
intelligence gathering and analysis. And he must also manage the
relationships between the new DNI and existing department and agency
heads--most notably the Secretary of Defense--in order to ensure that
the goals of intelligence reform are realized.
The new DNI will also have tremendous responsibility. He or she will
have to establish clear priorities for the intelligence community, and
this will be reflected in the National Intelligence Centers that are
created to work, alongside the National Counterterrorism and
Counterproliferation Centers. The DNI must also revise current budget
priorities, such as the research and development budgets, and establish
community-wide personnel policies that support the recruitment,
training and retention of effective intelligence community personnel.
Finally, there will be a responsibility here on the Congress. In the
Senate we have taken steps to reform our oversight of intelligence.
Terms limits on the Intelligence Committee have been removed. By
creating a new appropriation subcommittee for intelligence we have
freed the intelligence budget from its previously unbreakable link to
the defense budget. These are good starts. But we will also have to
look at the culture of the congressional oversight committees, and make
sure that they direct their attention to the front windshield of the
future, and the threats that are coming at us, and spend relatively
less of their time on looking through the rear view mirror at accidents
that have already occurred.
By its nature, the intelligence community is going to create
accidents from time to time. They need to be reviewed. But we cannot
afford for them to consume all of our oversight responsibility. It is
in the future that new threats are to be found, and it is our
responsibility to be able to assure the American people that our
intelligence community is capable of identifying those threats, and of
providing information to the appropriate decision makers, in order to
prevent those threats from becoming the next Pearl Harbor, or the next
9/11.
Madam President, in conclusion, I would like to note that this bill
would not have been possible without an extraordinary effort by dozens
of members of Congress, the Joint House-Senate intelligence inquiry
members and staff, the 9/11 Commission, and, particularly, the families
of the victims of 9/11.
Today is a celebration of the success of urgently needed reform,
finally overcoming the inertia of the status quo. But, this is only the
end of the beginning. The President, the Congress, those Americans who
do and will serve the intelligence community, bear the responsibility
of ensuring that the promise of enhanced security through reformed
intelligence is achieved. The fulfillment of this promise will be
neither quick nor easy. The most important undertakings seldom are. But
the goal is worthy of our most steadfast commitment to its attainment.
The PRESIDING OFFICER. The Senator from Maine is recognized.
Ms. COLLINS. Mr. President, I ask unanimous consent that a list of my
staff members who worked so hard on this bill over so many months be
printed in the Record at this point.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Michael, Bopp, Jane Alonso, Deborah Barger, Don Bumgardner,
Jen Burita, Elissa Davidson, Ann Fisher, Jason Foster,
Jennifer Gagnon, Priscilla Hanley, Johanna Hardy, Jennifer
Hemingway, Keith Janssen, David Kass, Bruce Kyle.
Gordon Lederman, Lesley Leger-Kelley, James McKay, Bill
Murray, Jon Nass, Amy Newhouse, Bill Priestap, Alec Rogers,
Kate Scontras, Amber Smith, Heather Smith, Cornelius
Southall, Michael Stern, Sarah Taylor, Monica Wickey, and
Keith Herrington.
Ms. COLLINS. Mr. President, I also want to list the conferees on this
bill. Contrary, perhaps, to the implications of what we have just
heard, this was an extraordinarily open conference, where Democrats and
Republicans negotiated side by side in every single meeting. It was a
bipartisan effort.
Senators Lott, Roberts, Voinovich, Coleman, Sununu, DeWine, Levin,
Rockefeller, Durbin, Graham of Florida, and Senator Lautenberg were the
Senate conferees on this important bill. I thank each of them
personally for how hard they worked. Each of them contributed greatly
to the final product, and I am very grateful for their support.
I wish to also respond to the concept that somehow this issue was
rushed. The fact is there have been numerous reports and commissions
that have urged intelligence reform going back to 1954. Over and over
again, problems were identified in our intelligence structure, even as
our country became more vulnerable to asymmetric threats, such as
terrorist groups.
The 9/11 Commission, which did, in my view, an outstanding job,
reviewed more than 2.5 million pages of documents, interviewed more
than 1,200 individuals, held 19 days of hearings, and took public
testimony from 160 witnesses. Congress held 44 hearings on the 9/11
Commission's report and recommendations.
The Governmental Affairs Committee, which I am honored to chair,
alone held 8 days of hearings and marked up this legislation for 2 full
days. We were on the Senate floor for nearly 2 weeks. We considered
hundreds of amendments to this bill. The conference on the bill lasted
nearly 2 months and received a great deal of attention.
I note that we have made substantive changes to only two provisions
in the conference report since November 20 when the conference
agreement almost came to the Senate floor.
The November 20 language was widely circulated. It included being
provided to the staff of the distinguished senior Senator from West
Virginia.
I assert that this was an extraordinarily inclusive process, and all
the Members of the Senate have had ample time to review the conference
report since, with just two exceptions, which have been highly
publicized. It is the same language, for the most part, except for
technical changes, as we reported it on November 20.
I wanted to make those points. I know there are other Members
desiring
[[Page S12002]]
to speak. I will yield the floor, but I reserve the remainder of my
time.
Finally, Mr. President, I note that the Senator from New Hampshire,
Mr. Sununu, wishes to speak in favor of the conference report. I am
prepared to yield him some of my time, but I am not certain how much
time I have remaining. If I could be informed by the Presiding Officer
as to how much time I have remaining, that would be helpful.
The PRESIDING OFFICER. The Senator has 10 minutes remaining.
Ms. COLLINS. I will yield at the appropriate time 5 of my remaining
minutes to the Senator from New Hampshire. I thank the Chair.
The PRESIDING OFFICER. The Senator from Florida.
Mr. NELSON of Florida. Mr. President, I yield myself 5 minutes of the
time of the Senator from West Virginia.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. NELSON of Florida. Mr. President, I rise to state that I
enthusiastically support this legislation. If I had to sum up in one
sentence what would be one of the most powerful statements as to why we
need to pass this legislation, it would be from the television
interview of Governor Kean, the Chairman of the 9/11 Commission, when
he said: This bill will pass. It is just a question of will it pass now
or will it pass after the next terrorist attack.
His statement was full of so much meaning because of all the
deliberation and the factfinding that the 9/11 Commission had brought
to the light of day in showing how the intelligence apparatus of this
country had failed us in alerting that we were about to be attacked.
We do not have the luxury of two big oceans protecting us as we have
had in the past, for we now have a new kind of enemy who deals with
stealthiness. Our ability to protect ourselves is having the
information ahead of time so we can thwart the attack.
It was also very revealing in the 9/11 Commission Report when they
concluded that we are safer than September 11, but we are not safe.
I commend the chair of the committee and her ranking member, as they
have done an extraordinary job in the crucible of legislative give and
take to stand on their principles and to insist on those principles
that a reorganization be done under which there would be accountability
instead of the separate and multifaceted intelligence communities that
we have seen in the past that do not talk to each other.
My hat is off to the chair of the committee and to the ranking
member. My hat is also off to them because they have shown legislative
dealmaking at its best. They have done it with aplomb, with respect,
with bipartisanship, with dignity, and that is the standard that has
been so much a part of the historical tradition of the Senate. And the
two of them, Senator Collins and Senator Lieberman, have shown us that
standard. This Senator from Florida is very grateful.
There will be other issues that we have to address in the future.
Some of these additional questions on immigration are absolutely
critical to our future protection, and we can do that in the context of
a big immigration bill. We simply cannot be safe if thousands of people
continue to come across the Mexican border, as we have heard in
testimony in our Commerce Committee--specifically with our chairman,
John McCain--having witnesses telling us how many people are coming
across the Mexico-Arizona border each week. It absolutely staggers the
imagination how we can have this porous border and protect ourselves
from this new threat of terrorism. So we have to deal with that issue.
In part, this committee has dealt with it in giving new border agents
and Customs officials, and for that I am grateful. With more coastline
than any other State, save for the State of Alaska, my State of Florida
is a place that is ripe for infiltration, and we need that extra
protection.
I am looking forward to the continuing debate and offering some
observations from the perspective of the State of Florida as we get
into that debate. But for the time being, the reorganization of the
intelligence apparatus, where there will be accountability and where
there will be a centralized budget, is very important for the future
protection of this country. That is why I support this bill, and I will
be voting for this bill when we vote on it today.
Mr. President, on behalf of Senator Byrd, I yield 5 minutes of his
time to Senator Lieberman, and I would then yield back Senator Byrd's
time, except for 5 minutes under Senator Byrd's control.
The PRESIDING OFFICER (Mr. Sununu). Is there objection?
Mr. WARNER. Mr. President, I do not understand. I ask the Presiding
Officer to advise the Senate with regard to the current parliamentary
situation. When I left the floor earlier today, there was an informal
arrangement that Senator Stevens and Senator Warner would follow
Senator Byrd. That is my recollection. I yield to the managers.
Mr. NELSON of Florida. Mr. President, do I have the floor?
The PRESIDING OFFICER. The Chair can clarify. There is no specific
order to that effect. Does the Senator from Florida wish to clarify his
unanimous consent request?
Mr. NELSON of Florida. To my good friend, the chairman of the Armed
Services Committee, I am yielding back Senator Byrd's time. He still
has time left. I stated specific parameters, 5 minutes for Senator
Lieberman and the additional 5 minutes that I stated.
The PRESIDING OFFICER. Is there objection?
Ms. COLLINS. Mr. President, I do want to clarify apart from this
issue that I believe there was an informal--I thought we had made it
formal--understanding that Senator Stevens would follow Senator Byrd's
remarks, and Senator Warner would follow Senator Stevens' remarks. But
all the Senator from Florida is trying to do--and I very much
appreciate his endorsement of the bill--is to yield back the remainder
of Senator Byrd's time at the request of Senator Byrd.
The PRESIDING OFFICER. Is there objection?
The PRESIDING OFFICER. The Senator from Alaska.
Mr. STEVENS. Parliamentary inquiry: It is my understanding that part
of the time was to be yielded to another Senator.
The PRESIDING OFFICER. The request was to allot Senator Lieberman 5
minutes of the remaining time.
Mr. STEVENS. At this time?
Mr. NELSON of Florida. No. If the Chair will clarify my statement.
The PRESIDING OFFICER. I believe I just did. The request was to yield
back the remainder of Senator Byrd's time with the exception of 5
minutes to be granted to Senator Lieberman and 5 minutes retained by
Senator Byrd. So there would be 10 minutes reserved on the minority's
time.
Without objection, it is so ordered.
The Senator from Alaska.
Mr. STEVENS. Mr. President, I rise to discuss this national
intelligence reform bill with some reluctance, because as a member of
the Governmental Affairs Committee I was also involved, as the chairman
of the Appropriations Committee, in the enormous omnibus bill and I
have not been able to pay the attention to this bill that I should
have. I regret that some of my feelings about the bill reflect the fact
I was not there to participate in those meetings. I do commend my
colleagues in both Houses of the Congress for their hard work in coming
to an agreement on this bill. As with every conference, each voice is
heard but none can dominate, and compromise is absolutely required.
I commend Senator Collins and Senator Lieberman for their attention
to the concerns of the people of this Nation and for this bill that
addresses those concerns in the wake of September 11. I do not believe
this bill fully resolved all of those concerns, but the American people
should know that Congress has indeed passed a bill to reform our
intelligence community.
This process has been a long and arduous one. I voted for the Senate
version of this bill, when it passed the Senate, with reservations. I
was concerned about the needs of the warfighters and the publication of
the top line numbers of the intelligence community and the broad
authorities granted to the Director of National Intelligence. It was my
hope that these concerns would be addressed, and they have been
partially met by this bill.
I still believe that some of the sections of the bill grant such
authorities
[[Page S12003]]
to the Director of National Intelligence that place him or her above
those of any member of the President's Cabinet, and by passing this
bill we will have created an intelligence czar whose authorities will
far exceed any governmental official other than the President himself.
I believe this should be of some concern to every Member of the Senate,
and Senator Byrd has outlined some of those concerns.
This Director of National Intelligence is not an elected official and
is not directly accountable to the American people. The Director of
National Intelligence will only be able to be reined in by the
President himself, and that, I believe, puts an overwhelming burden on
the President of overseeing this official and the actions of the
Director of National Intelligence on a daily basis. No one else has any
way to control this official.
The intelligence community has also provided support to the
President, to the administration itself, and to the Congress. I fear
this bill goes far beyond that role. When an individual or an
organization is given such broad authorities, the lines between
policymaking and information gathering become blurred. This is
particularly true in the intelligence field, and I continue to have
reservations as to how this new organization will integrate these
duties with the overall governmental structure and particularly with
those of the Secretaries of State, Defense, and Homeland Security.
These are extraordinary authorities that will be given to the
Director of National Intelligence. That person will exercise power far
beyond those I have seen even in wartime. In my years in the Senate, I
have known 12 Directors of Central Intelligence. It has been my
privilege to know each one of them personally. My roots in the
intelligence community go back to World War II when I flew the OSS
plane in China. Since then, I have had a great deal of interest in and
contact with members of the intelligence community and continue to have
a great interest in the operations of intelligence for our National
Government.
Clearly, I believe I know a little history of intelligence. I
challenge anyone to name any official of a friendly or adversarial
intelligence service over the past century who has been granted the
broad authority that this National Intelligence Director will have.
What this requires, in my judgment, is persistent oversight by the
Congress. Each committee of the Congress with oversight of intelligence
matters must scrutinize the actions of the intelligence community, and
in particular this Director, to ensure there are checks and balances in
this system that are required by our Constitution. We must aggressively
remain attuned to assure that none of the freedoms we celebrate are
hampered by this new entity or its Director.
Now, having said that, as I informed the President previously, I will
vote for this bill, but it is my intention to ask that each general
counsel in the intelligence community and the Department of Defense
report to the next Congress, at least on a periodic basis, their
interpretation and the subsequent implementation of this legislation in
their Departments to ensure that these concerns of mine and those that
have been expressed by other Senators on the floor do not come to
fruition.
Again, this is a bill that is needed, authority that is needed in the
post-9/11 period. I believe still, as I have stated repeatedly on the
floor, there are many Members of the Senate who do not realize how much
has been accomplished since 9/11, and I assume this bill will be
interpreted in terms of the intelligence system as it exists today and
not based upon the intelligence system that existed on September 11,
2001.
I thank the Chair.
The PRESIDING OFFICER. The Senator's time has expired.
The Senator from Virginia.
Mr. WARNER. Mr. President, I ask the Presiding Officer to advise me
when there is but 5 minutes remaining on my time such that I can allow
that time to be used by another Senator, and I would hope the managers
would yield to Senator Cornyn, if that is possible.
Before my distinguished colleague from Alaska departs the floor, I
associate myself with his goals in this forthcoming legislation and
would like to cosponsor that with him. I think that is very much
needed. I do not join or do that in any criticism of the distinguished
work done by the managers of this bill. They certainly were given a
daunting challenge to perform in a very short period of time, but I
hope the managers and others recognize the need for oversight, perhaps
in some respect by my committee, the Intelligence Committee, and the
Governmental Affairs Committee, because of the enormity of the power
that this one individual has.
As it relates to my specific concerns, that is of the chain of
command and the operation of the new Director to involve himself in
some way in those decision processes, as that order comes down from the
President through the JCS to the combatant commanders, we have to watch
the execution of those powers very carefully.
So I commend my distinguished colleague, and I wish to thank our
distinguished majority leader for the very openminded and fair manner
in which he dealt with those of us who had some concerns about this
throughout. He was joined, I think in some respects, by the Democratic
leader. Together with Senator Stevens, Senator Byrd, Senator Sessions,
Senator Kyl, Senator Allard, Senator Cornyn, and Senator Burns, and I
will let them speak for themselves, but I thought their contributions
to this Senator, and I think from the conversations with the Senator
from Alaska, were very helpful as I began to work my way through what I
perceived as my responsibility with regard to this legislation in the
capacity as chairman of the Senate Armed Services Committee.
On Monday this week, I joined, at his invitation, Chairman Duncan
Hunter of the House Armed Services Committee, indicating that I planned
to support this conference report, and that was predicated largely on
the achievements of Chairman Hunter and, to some extent, myself and
others working with the managers in providing a deletion of certain
words in the conference report and in their place providing others
that, in my judgment, give a greater degree of protection to the time-
tested concept of chain of command within our military forces.
Again, I have been working, and I think it is important for the
legislative history to set forth a chronology, on the chain of command
language over several months. I am particularly grateful to the Vice
President, with whom I had consultations, and his staff, with whom I
had continued conversations, for their guidance and assistance on this
vital issue as I worked with Chairman Duncan Hunter. The issue was of
great importance. I believe, as a matter of fact, it was critical that
a clear record be laid out of the chronology of events that led to this
new language.
Back in August and September of this year, when intelligence reform
legislation was being developed, the White House, on September 16,
provided draft legislation to the Congress. The process was somewhat
informal. I mean some of the processes throughout this legislative
consideration were somewhat unusual. But, anyway, they provided draft
legislation. It suggested legislation contain--and I refer to section 6
on preservation of authority. That is another definition of chain of
command. This legislation would ensure the protection of the chain of
command as proposed by the President. The bottom line is Cabinet
officers remain responsible for managing their departments and would
remain accountable for the actions of their departments.
I was advised at that time that this preservation of authority
section was drafted, indeed, with the personal involvement of the
President and that he had expressed to his immediate associates the
importance of this concept to the President.
Legislation reported to the Senate by the Government Affairs
Committee did not include this section. That, of course, was the
chronology that the managers can provide if they deem necessary.
The administration felt strongly enough to appeal for the inclusion
of this provision of preservation of authority language during the
Senate floor consideration of the bill. And in
[[Page S12004]]
the Statement of Administration Policy, dated September 28, 2004, the
administration urged the Senate to include section 6 of their proposed
legislation in the Senate bill.
On October 1, 2004, I introduced an amendment during the floor debate
to accomplish this very purpose, as established by the administration
in their communications. Unfortunately, after lengthy discussions with
the floor managers and the administration, I was just not able to
effect what I believed was a compromise that would meet the goals that
I had set out and, if I may say, I felt the goals that the
administration had set out. Consequently, the amendment was not
considered and was withdrawn.
I remained concerned about preserving the authority of Cabinet
officers to manage their departments and to remain accountable for the
performance of their departments as well as protecting the integrity of
the chain of command, from the President to the Secretary of Defense to
battlefield commanders.
In a statement on the Senate floor on October 4, 2004, during the
course of that debate, before final passage, I clearly indicated I
would vote for the bill, but I had sufficient confidence that the
process would once again take into consideration the positions of the
Senate and the House on the position of chain of command, and that the
conferees would see the wisdom of incorporating that provision as
desired by the administration and along the lines of the amendment that
I had considered.
Clearly, this chain of command issue has been of significant concern
over the past few weeks. It was one of the reasons the House of
Representatives was not able to reach a decision to proceed with a vote
on this conference report prior to Thanksgiving. The record reflects
with clarity that it was important that this issue should be resolved.
It was not a trivial matter--I repeat, it was not a trivial matter, as
has been suggested in press reports, attributing those quotes to
others.
Each time our President sends the U.S. Armed Forces into harm's way
to defend our Nation, a series of events happens, including specific
orders to our combat support agencies, the Defense Intelligence Agency,
the National Security Agency, the National Reconnaissance Office, and
the National Geospatial-Intelligence Agency, to provide very specific
supports to combatant commanders at specific times and places.
This support is critical to the success of virtually all military
operations, and those decisions often have to be made on a real time,
instantaneous basis. There can be no ambiguity in the statutory
framework or regulations about these orders and the ability to execute
them. And there can be no conflicting directions to the implementers of
that intelligence to provide it and provide it expeditiously for the
men and women of the Armed Forces. The lives of our uniformed personnel
are at risk, and the success of our military efforts can often hang in
the balance.
The language contained in the November 20 draft conference report
potentially inserted the newly created Director of National
Intelligence into this chain of command with the authority to direct
military intelligence assets to what the DNI--that is the acronym for
the Director of National Intelligence--considered higher priorities,
thereby possibly putting him in conflict with the Secretary of Defense
and the combatant commanders. Such a situation would clearly, I judged,
violate the time-tested principle of continuity, of unity of command.
The new law, however, as now redrafted, will presumably go forward
for many years. Although soldiers will come and go, personalities will
be different. Consequently, these potential ambiguities are best
removed now. I think the new language achieves, in large measure, that
goal.
Our Armed Forces are the finest in the world and one of the reasons
for their excellence is an unambiguous, time-tested chain of command.
Consequently, I was very concerned, as was my friend and colleague
Duncan Hunter of the House Armed Services Committee, that the draft
conference report, if it became law, would not be drafted in such a way
as to disrupt the integrity of our chain of command, or even possibly
have the ambiguity that gave rise to the ability for such disruption.
Chairman Hunter exhibited strong, determined leadership as a House
conferee on this issue, and I was privileged to work with him. We have
shared such responsibilities, the two of us working together, over more
than two decades of service in our respective memberships on the
committees of the armed services of the Senate and the House.
On Monday this week, after consultations with the White House, the
Chairman of the Joint Chiefs of Staff, Chairman Hunter, and several
conferees, an agreement was reached on the language that protects the
integrity of this chain of command, in my estimate, and preserves the
authority of heads of government departments to effectively manage
their departments and remain accountable for the performance of all
elements of their departments. The final language is a significant
change, which allays concerns of the Members, which I expressed
publicly on December 3 in a press statement.
Other colleagues had approached me with the same basic concerns. I
think, and I have assured them in conversations, that they have largely
been met and that this proposed conference report, which will
eventually become statutory law, has been greatly improved.
Therefore, I ask unanimous consent that a copy of the preservation of
authority provision for the November 20 draft conference report, as
well as the final version be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
November 20, Final Language Proposed by Conference Big 4
SEC. 1018. PRESERVATION OF AUTHORITY AND ACCOUNTABILITY.
Not later than 120 days after the date of the appointment
of the first individual appointed as the Director of National
Intelligence, the President shall, and on an ongoing basis,
issue guidelines to ensure the effective implementation
within the executive branch of the authorities granted to the
Director of National Intelligence by this title and the
amendments made to this in a manner that maintains,
consistent with the provisions of this Act, the statutory
responsibility of the head of the departments of the United
States Government with respect to such departments,
including, but not limited to:
(a) the authority of the Director of the Office of the
Management and Budget, or
(b) the authority of the principal officers of the
executive departments as heads of their respective
departments, including, but not limited to, under--
(1) Section 199 of the Revised Statutes (22 USC 2651);
(2) Title II of the Department of Energy Organization Act
(42 USC 7131);
(3) State Department Basic Authorities Act of 1956, as
amended;
(4) Section 102(a) of the Homeland Security Act of 2002 (6
USC 112(a)); and
(5) Sections 301 of title 5, 113(b) and 162(b) or title 10,
503 of title 28, and 301(b) of title 31, United States Code.
Intelligence Reform Conference
evolution of chain of command issue
Current law, as established by the Goldwater-Nichols
Defense Reorganization Act of 1986, provides for a clear and
unambiguous military chain of command. This was a key aspect
of the reform legislation to ensure that combatant commanders
were provided with the unity of command necessary for
successful execution of military operations.
10 USC 162
SEC. 162. COMBATANT COMMANDS: ASSIGNED FORCES; CHAIN OF
COMMAND.
(a) Assignment of Forces.--
(4) Except as otherwise directed by the Secretary of
Defense, all forces operating within the geographic area
assigned to a unified combatant command shall be assigned to,
and under the command of, the commander of that command. The
preceding sentence applies to forces assigned to a specified
combatant command only as prescribed by the Secretary of
Defense.
(b) Chain of Command.--Unless otherwise directed by the
President, the chain of command to a unified or specified
combatant command runs--
(1) from the President to the Secretary of Defense; and
(2) from the Secretary of Defense to the commander of the
combatant command.
10 USC 164
SEC. 164. COMMANDERS OF COMBATANT COMMANDS: ASSIGNMENT;
POWERS AND DUTIES.
(c) Command Authority of Combatant Commanders.
(1) Unless otherwise directed by the President or the
Secretary of Defense, the authority, direction, and control
of the commander of a combatant command with respect to the
commands and forces assigned to that command include the
command functions of--
(A) giving authoritative direction to subordinate commands
and forces necessary to
[[Page S12005]]
carry out missions assigned to the command, including
authoritative direction over all aspects of military
operations, joint training, and logistics;
(B) prescribing the chain of command to the commands and
forces within the command;
(C) organizing commands and forces within that command as
he considers necessary to carry out missions assigned to the
command;
(D) employing forces within that command as he considers
necessary to carry out missions assigned to the command;
(E) assigning command functions to subordinate commanders;
and
(F) coordinating and approving those aspects of
administration and support (including control of resources
and equipment, internal organization, and training) and
discipline necessary to carry out missions assigned to the
command.
In recognition of the possible conflict between the new
authorities being provided to the National Intelligence
Director and existing chain of command statutes, the Bush
Administration's September 16 legislative proposal to
implement the 9-11 Commission recommendations contained a
specific provision to ensure protection of existing chain of
command authorities.
SEC. 6. PRESERVATION OF AUTHORITY AND ACCOUNTABILITY.
Nothing in this Act or amendments made by this Act shall be
construed to impair or otherwise affect the authority of: (1)
the Director of the Office of Management and Budget; or (2)
the principal officers of the executive departments as heads
of their respective departments, including, but not limited
to, under section 199 of the Revised Statutes (22 USC 2651),
Title II of the Department of Energy Organization Act (42 USC
7131), the State Department Basic Authorities Act of 1956, as
amended, section 102(a) of the Homeland Security Act of 12002
(6 USC 112(a)), and sections 301 of title 5, 113(b) and
162(b) of title 10, 503 of title 28, and 301(b) of title 31,
United States Code.
The November 20 conference proposal contained inadequate
protection of the chain of command provisions as it
subordinated these sections of law to the new authorities
vested in the Director of National Intelligence. This
proposal was opposed by Chairman Duncan Hunter.
SEC. 1018. PRESERVATION OF AUTHORITY AND ACCOUNTABILITY.
Not later than 120 days after the date of the appointment
of the first individual appointed as the Director of National
Intelligence, the President shall, and on an ongoing basis,
issue guidelines to ensure the effective implementation
within the executive branch of the authorities granted to the
Director of National Intelligence by this title and the
amendments made to this title in a manner that maintains,
consistent with the provisions of this Act, the statutory
responsibility of the head of the departments of the United
States Government with respect to such departments,
including, but not limited to:
(a) the authority of the Director of the Office of the
Management and Budget; or
(b) the authority of the principal officers of the
executive departments as heads of their respective
departments, including, but not limited to, under--
(1) Section 199 of the Revised Statutes (22 USC 2651);
(2) Title II of the Department of Energy Organization Act
(42 USC 7131);
(3) State Department Basic Authorities Act of 1956, as
amended;
(4) Section 102(a) of the Homeland Security Act of 2002 (6
USC 112(a)); and
(5) Sections 301 of title 5, 113(b) and 162(b) or title 10,
503 of title 28, and 301(b) of title 31, United States Code.
The proposed December 6 agreement between Senate conferees
and Chairman Hunter provides necessary protection of chain of
command statutes.
SEC. 1018. PRESIDENTIAL GUIDELINES ON IMPLEMENTATION AND
PRESERVATION OF AUTHORITIES.
The President shall issue guidelines to ensure the
effective implementation and execution with the executive
branch of the authorities granted to the Director of National
Intelligence by this title and the amendments made by this
title, in a manner that respects and does not abrogate the
statutory responsibilities of the heads of the departments of
the United States Government concerning such departments,
including, but not limited to:
(1) the authority of the Director of the Office of
Managements and Budget; and
(2) the authority of the principal offices of the executive
departments as heads of their respective departments,
including, but not limited to, under--
(A) section 199 of the Revised Statutes (22 USC 2651);
(B) title II of the Department of Energy Organization Act
(42 USC 7131 et seq.);
(C) the State Department Basic Authorities Act of 1956;
(D) section 102(a) of the Homeland Security Act of 2002 (6
USC 112(a)); and
(E) sections 301 of title 5, 113(b) and 162(b) of title 10,
503 of title 28, and 301(b) of title 31, United States Code.
Mr. WARNER. It has been clear, especially after the July report
issued by the Senate Intelligence Committee under the leadership of
Chairman Roberts and Chairman Rockefeller, about weapons of mass
destruction in Iraq and the valuable contribution of the 9/11
Commission and the comments and thoughts of many others, that led to
the impetus for the United States to have had major reform of our
national intelligence system. That was needed.
The Governmental Affairs Committee was given this challenge and
accepted it. They have worked to the best of their ability, and their
final work product brings us to this point today where I presume there
will be a strong vote to endorse that workmanship.
It has been my position during this process, however, to ensure that
we do no harm to the immeasurably improved intelligence system that has
been built for our battlefield commanders over the past 15 years since
shortcomings were identified during and after the Persian Gulf war.
Senator Stevens commented on that. That is one of the reasons we were
associated in working on this language change. A much improved system
exists today, and it will continually evolve in becoming more improved.
It has been the goal of the Senate Armed Services Committee, working
with other committees of the Senate during this deliberative process on
this intelligence reform, to ensure that intelligence support to the
President, the Congress, senior policymakers, and tactical commanders
is enhanced. The agreement we reached on Monday is crucial in
accomplishing that goal.
The new language in the conference report before us today is a
substantial improvement. President Bush, in his letter to the Congress
on December 6, 2004, stated that it is his intention to develop
guidelines and regulations using the statutory guidance provided in
this provision ``to ensure that the principles of unity of command and
authority are fully protected.''
With this agreement, it is now time to move forward to approval of
this bill, and I shall vote for it. Earlier today, the distinguished
majority leader made reference to this bill as ``not a perfect bill.''
I associate myself with his opinion because there are several issues
about which I remain concerned; namely, the authorities of the Director
of National Intelligence to establish personnel policy for military
personnel and transfer them within the National Intelligence Program;
the ability of the Director of National Intelligence to transfer and
reprogram funds; the role of the Director of National Intelligence in
major intelligence acquisition programs managed largely by the
Department of Defense; and the relationship between the DNI and the
Director of the CIA, and between the DNI and the Director of the
National counterterrorism Center.
At this point, I say thanks to Senator Stevens. I have worked closely
with the Central Intelligence Agency and the Directors of that
organization for these many years. The principal headquarters is in my
State. I am privileged to have had a long series of close personal
relationships with not only the Directors but many of the associate
directors and others--indeed, the employees. I think overall they have
stood the test of time and done their very best to provide America with
the best intelligence, and most particularly the men and women of the
Armed Forces.
Consequently, I will join others in this Chamber to carefully monitor
oversight implementation of this legislation over the coming months,
and will, if deemed necessary, offer such legislation, an example being
what the distinguished Senator from Alaska just mentioned, when
appropriate to further strengthen this law to alleviate any unintended
consequences of this legislation.
Again, I congratulate the managers of this bill. I look forward to
working with them as we implement these reforms and build an
intelligence system that provides the best possible support for our
national decisionmakers, and most particularly to those in uniform
serving on the distant battlefields and ramparts of the world.
I ask unanimous consent to have printed in the Record a working
document on the chain of command issue which Chairman Hunter and I used
during our deliberations on this issue, and in response to questions
that were directed to us, as well as a chronology of events associated
with consideration of chain of command language during deliberations of
this bill.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[[Page S12006]]
Chronology Preservation of Authority/Chain of Command Provisions in the
Intelligence Reform and Terrorism Prevention Act of 2004
July 22, 2004--9/11 Commission Report released.
August 2004--relevant committees of Congress conduct
hearings.
September 16, 2004--White House provides suggested
legislation on intelligence community reform to relevant
committees of Congress, which includes a section 6 on
``Preservation of Authority'' for heads of executive
departments to manage their departments and remain
accountable for their performance.
September 23, 2004--Government Affairs Committee reports S.
2845 to the full Senate for consideration, without
``Preservation of Authority'' provision.
September 28, 2004--White House submits Statement of
Administration Policy supporting S. 2845, but expressing
concern about several issues including the lack of a
``Preservation of Authority'' provision stating, ``The
Administration supports inclusion of this provision [Section
6, Preservation of Authority and Accountability, of the
Administration's proposal] in the Senate bill.''
October 1, 2004--Senator Warner submits Amendment No. 3876
to S. 2845, to preserve the authority of heads of executive
departments to manage and remain accountable for the
performance of their departments.
October 4, 2004--Debate on Warner ``Preservation of
Authority'' amendment ends with no agreement. Modified
language jointly drafted by White House and Senator Warner is
rejected. Amendment is withdrawn.
October 6, 2004--S. 2845 is passed by the Senate, but
without a section on ``Preservation of Authority.'' Senator
Warner voices support for the overall legislation but cites
continuing concerns, including the lack of a ``Preservation
of Authority'' clause, and indicates his intent to try to
resolve these concerns during the conference process.
October 10, 2004--H.R. 10 is passed by the House.
October 16, 2004--Conference begins.
October 18, 2004--Director, OMB, and National Security
Advisor send joint letter to conference chairmen expressing
administration views on conference issues, including urging
conferees to include section 6 of the original administration
proposal on ``Preservation of Authority,'' and indicate this
section is one of President Bush's three core principles for
the bill.
October 20-November 19, 2004--Conferees exchange
approximately 12 offers and counteroffers on ``Preservation
of Authority'' language.
November 20, 2004--Conference managers propose final
language. Chairman Hunter indicates his objection to the
language believing it would potentially insert the DNI into
the chain of command. Senate conferees approve draft
conference report 13-2. House conferees defer action on
conference report.
November 21, 2004--House and Senate adjourn without taking
action on the conference report.
November 22-December 5, 2004--consultations between
Chairman Hunter, Chairman Warner, Vice President Cheney,
several conferees, and General Richard B. Myers, Chairman of
the Joint Chiefs of Staff, on appropriate language to ensure
the integrity of the chain of command.
December 6, 2004--Agreement is reached between
administration, conference managers, Chairman Hunter, and
other concerned Members of Congress, on revised
``Preservation of Authority'' language that directs the
President to issue guidelines for implementation that,
``shall respect and not abrogate the statutory
responsibilities of head of the departments of the United
States Government. . . .''
Mr. WARNER. Madam President, I yield the floor. Again, I yield such
time as I might have remaining to Senator Cornyn.
The PRESIDING OFFICER (Ms. Collins). The Senator from New Hampshire
is recognized.
Mr. SUNUNU. I thank the Chair.
It is a pleasure to stand in support of the intelligence reform bill.
In my remarks today in support of the bill, I want to first emphasize
that there is no real way we can know exactly and precisely what all of
the benefits might eventually occur due to the reforms made by this
bill. I think both the House and Senate went through a good-faith
effort to try to develop a better, a better intelligence organization,
better rules for sharing information than we currently have, changes
that conform in many ways to some of the difficulties identified, and
recommendations made by the September 11 Commission. But the real
motivator for reform I think began even prior to September 11.
I think the impetus for change in our intelligence organization
begins with the fall of the Iron Curtain, the end of the Cold War, the
disintegration of the Soviet Union, and the emergence of terrorism--now
the greatest national security threat that faces America and our
allies--and concerns over the proliferation of weapons technology to
terrorists around the world. That was obviously brought to the
forefront with the attacks of September 11. But the fact that we have a
new set of threats and a new set of risks to American security is what
calls on us to review the structure of our intelligence agencies and to
make the recommendations for change that are embodied in this bill.
With this legislation, we will improve the budget process for
intelligence agencies by giving more power and authority to the
Director of National Intelligence, the DNI. The DNI will coordinate
where the funds and resources should be allocated among the 15 various
agencies that have responsibility for intelligence gathering in the
United States and around the globe.
We reform the standard of accountability by having an independent
Director of National Intelligence. I think there is, to borrow a phrase
from the previous speaker, a clearer chain of command for
responsibility and accountability in setting priorities and setting
goals for the President of the United States and all of those in the
Government who rely on our intelligence-gathering operation.
We reform the process of coordinating between these 15 agencies. We
have a new counterterrorism Center that will be the central focus for
gathering information threats from law enforcement and intelligence
agencies around the country.
We now have a much better understanding of the degree with which
critical pieces of information can come from local or State law
enforcement, and not just from the sophisticated apparatus of a
national intelligence organization.
We have to coordinate and collect that information and then
disseminate it and do a better job of sharing that information.
A final area of reform I would underscore is that with this
legislation we set clear guidelines, a clearer process, and in many
ways an easier process, for getting key pieces of information to the
decisionmakers that will act on that information.
We saw, unfortunately, time and again in the wake of September 11
moments where there existed important information, but for a variety of
reasons that information wasn't placed in the right hands at the right
time. So information sharing, as simple as it may sound, is a critical
piece of the reform element in this bill.
For all of those reasons, I am very pleased to support the
legislation because I think it will create a much better framework for
understanding where we are successful and where we need to continue to
improve our intelligence gathering. Not every objective, not every
goal, will be attained in the next year or the next 2 years. But this
organizational structure, the rules for intelligence sharing, this
budget process, all will make our intelligence organization much more
effective.
A lot of concerns have been raised about the legislation. A lot of
people point out the obvious--that it is not a perfect piece of
legislation. I don't think anyone has ever come to the floor of the
Senate or the House of Representatives claiming they had finally
written the perfect piece of legislation. But a lot of those criticisms
as well are on a weak foundation; concerns, for example, about the
process, the speed and the timing with which this legislation was
written.
The suggestion was made earlier last month that the Senate had rushed
through this piece of legislation, that we moved it through too
quickly, that there was not enough time taken for deliberations and
hearings. I think of all the criticisms, that is probably the weakest I
have heard.
The Chair well knows through a number of hearings we collected
information--not just from the September 11 Commission and all the work
they did on these issues, not just from the families of those who were
lost on September 11, but from intelligence-gathering organizations,
from the FBI, from local law enforcement, information that was critical
to developing legislation before the Senate today.
The criticism of the process that somehow the conference between the
House and Senate was done in secret is simply without foundation. The
conference negotiations were extremely inclusive. In many ways I argue
they were inclusive because they included me. When the conference
negotiations
[[Page S12007]]
and the discussion about the final legislative language is inclusive
enough to make available a role for the 95th most senior Member of the
Senate, it is a pretty inclusive process. There were Democrats in the
room at the most sensitive times as well as Republicans. It was
bipartisan discussion and negotiation.
Obviously, not everyone got everything they wanted in the final bill.
When the process is criticized for being exclusive or it was rushed,
that criticism is most often made by someone who just did not quite get
everything they wanted in the bill.
There is a criticism that we should have included more immigration or
law enforcement provisions. This bill does deal with immigration in a
direct and substantive way: increasing customs agents and beds for
detainees; better information sharing that will make a huge difference
for the INS and for others engaged in securing our borders. But it does
not have every provision recommended by the House of Representatives,
so it should come as no surprise we will deal with many of these
issues, perhaps with a more comprehensive immigration reform bill, in
the next session of Congress.
What is in the bill improves the status quo, improves the current
situation. That is something for which we can all be pleased.
We have a lot of work to do on oversight in the coming session. We
have a lot of work to do to make sure this legislation does what we
intended it to do. But it is an outstanding effort. I commend the work
of the chairman and the ranking member on the Governmental Affairs
Committee as well as the House conferees.
The PRESIDING OFFICER. The Senator's time has expired.
The Senator from Connecticut.
Mr. LIEBERMAN. Madam President, I thank the Chair. Senator McCain is
on the way.
While Senator Snowe is in the Chamber and is the Presiding Officer, I
thank the Senator from New Hampshire for the extraordinary
contributions he made to this bill and to the conference both on what
used to be the Governmental Affairs Committee--I suppose it still is--
and now the Homeland Security and Governmental Affairs Committee,
particularly on the conference.
Senator Sununu was an extraordinarily important member, very
steadfast in support of genuine reform, and very skillful as a
legislator, both within the Senate conference and without, on the
occasional missions on which he would be dispatched to the other body
where, I gather from the record, he previously served and still has
some people listen to him when he goes over there. The Senator from New
Hampshire should feel the great pride and gratitude of the Senator from
Maine and this Senator for all he contributed to this historical
decision.
I yield to Senator Collins.
The PRESIDING OFFICER (Mr. Sununu). The Senator from Maine.
Ms. COLLINS. Mr. President, let me make a brief comment in response
to the recent discussion on the chain of command language.
First, I am very pleased we were able to reach agreement with the
chairman of the House and Senate Armed Services Committee on this
language. Since I did not see the documents that the chairman put into
the Record, I state very clearly for the record that nothing in the
final language in this bill in any way weakened the authority of the
new National Intelligence Director.
In fact, the Director of National Intelligence will have significant
budgetary and other authorities and that makes sense. We do not want to
create just another layer of bureaucracy. We do not want to create a
figurehead. We want to empower this individual with the authority to be
able to marshal the resources to counter the very serious threats we
face both today and in the future.
In my judgment, nothing in this bill has ever hindered military
operations or readiness, but I am pleased we were able to draft some
additional language that has provided some comfort to those who were
concerned.
All Members have our first priority to the brave men and women who
are fighting on the front lines of freedom. That is why this bill was
very carefully drafted to keep tactical and joint military intelligence
programs under the exclusive control of the Pentagon but to make sure
those national assets which serve multiple customers--including the
President's National Security Council, our covert agents in the CIA, as
well as our military--to ensure that those assets are controlled by the
Director of National Intelligence just as today they are controlled by
the Director of the CIA in his role as head of the intelligence
community.
I am told by those who have worked entire careers with the CIA that
the Department of Defense has always been very happy with the
relationship that allows a priorities committee to work out and resolve
any conflicts in the use of these national assets. Certainly, this
language and this bill as a whole, the reorganization as a whole, will
improve the quality of intelligence that is provided to our troops, as
well as making civilians at home safer. That is our goal. That is what
this legislation achieves.
Mr. President, the Senator from Arizona has arrived. He has been a
stalwart proponent of reform. He has worked very closely with Senator
Lieberman and me. I am very grateful for his leadership and support.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, I came here to applaud the enormous
efforts of my two colleagues, Senator Collins and Senator Lieberman.
This has been a task that has been, in the view of many,
insurmountable. This piece of legislation was declared dead on numerous
occasions. It was through their tenacity, hard work, and willingness to
compromise that we now have perhaps one of the most significant and
important reorganizations of the Federal Government certainly since
1947 when we created the Department of Defense.
It is all very good news. No one could describe it better than my two
colleagues who point out this is a law that has to be translated into
action. We have to change the reorganization of the boxes, but we also
have to change the culture, a culture that led the President of the
United States to proceed to war on the assumption that Saddam Hussein
had weapons of mass destruction, which apparently he did not; an
assumption that caused our Secretary of State to testify before the
U.N. Security Council that Saddam Hussein was amassing weapons of mass
destruction, an assumption that, unfortunately, misled other
intelligence agencies throughout the world, not only that of the United
States of America. But, as always, America leads. So I applaud their
outstanding work. As they said, this is the beginning of a beginning,
but it is an important beginning. Without this legislation, I do not
believe we could make significant progress.
I would like to thank the families of 9/11 who have steadfastly
supported this legislation. Without their support, it would still be
sitting at the desk as it was the day Senator Lieberman and I proposed
it. I think their work is not over as well, because one of the failures
of this body has been a total lack of congressional oversight
reorganization. Still, there are numerous committees of congressional
oversight. There has been no coordination, there has been no
consolidation, and in the words of my friend, John Lehman, a member of
the 9/11 Commission, in his words: The old bulls are more interested in
protecting their turf in Congress than they are in national security.
That is a tough indictment, but I think it is true; there is no
meaningful congressional oversight because of our failure to implement
even the most modest reforms of congressional oversight, with the
exception of permanent membership on the Intelligence Committee.
I want to point out and just talk for a minute about what has caused
the holdup here the last month or so; that is, the immigration issues.
First, I always believed this legislation was about reorganization of
our intelligence capabilities and not about immigration. I think I can
state with some confidence that the issue of illegal immigration is one
of overwhelming importance.
My State has been devastated in a broad variety of ways by the
effects of illegal immigration, ranging from people dying in the
desert, to overwhelming our health care facilities, to shootouts on our
freeways, to other terrible things that are happening all
[[Page S12008]]
across the State of Arizona. We passed a ballot initiative this last
election which, although I opposed, was certainly an expression of the
frustration that the people of my State feel. But I would also point
out, if anyone believes that simply strengthening our borders is the
answer to our Nation's illegal immigration problem, they do not
understand the problem.
Fifteen years ago, we declared a war on drugs, and we decided we
would stop the flow of drugs across our borders which was poisoning the
bodies and minds of our young Americans. The fact is, the cost of an
ounce of cocaine on the street in Phoenix today is less expensive than
it was 15 years ago. Why? Because there was a demand, and where there
is a demand, there is going to be a supply.
There is a demand for workers for jobs that Americans will not do.
What we have to have is comprehensive immigration reform that certainly
entails strengthening our borders, increasing Border Patrol, and having
better laws and better enforcement.
The issue of driver's licenses has to be discussed and debated
because we are heading down--in a little straight talk--we are heading
down a path toward a national ID card. I think that is something we
ought to discuss and debate at some length before we take that step as
a necessary one, if it is, in the war on terrorism.
So we have to have a comprehensive approach to immigration reform,
and I hope that will be a top priority agenda item.
I say again that I am committed, and I know the President of the
United States is committed, to overall, comprehensive immigration
reform. I look forward to working with my friends on the other side of
the aisle. This has to be a bipartisan issue, but it must be addressed
because we can never assure the American people that they are safe from
terrorists if our borders are penetrated, as they are today, by people
who can easily come across illegally. But, overall, we also owe it to
all men and women who live and work in this Nation to have certain
protections.
I look forward to working with my colleagues, and, again, my
congratulations to them.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. LIEBERMAN. Mr. President, I thank my friend, the Senator from
Arizona, for his kind words. I was just thinking, as I was listening to
Senator McCain, he is known as a straight talker, but he is also a
great doer. When he sees something that is wrong, and nobody is doing
anything about it, you are just not going to stop him until he gets it
right. When he sees a need that is unmet, you are just not going to
stop him until he figures out how to convince our Government to meet
it.
In this case, within a month after September 11, 2001, John McCain
and I were together somewhere and he raised the subject that there
ought to be an independent, nonpartisan investigation of how this
outrageous attack on the United States by Islamist terrorists could
have happened and what we can do to make sure, to the best of our God-
given ability, it never happens again.
We put the bill together in a commission. We had opposition. Every
step was tough, but ultimately it was adopted and filled brilliantly by
a group of citizens. Both parties rose to the occasion and presented a
report that was a scathing indictment of the status quo, an
intelligence community without anybody in charge, where people with
information in the FBI, CIA, and other agencies were not sharing it
with each other, and the gnawing conclusion that if the intelligence
community had been better organized and the dots had been connected, we
could have prevented September 11 from happening.
John McCain and I welcomed that report which came out at the end of
July. We began to work together to draft into legislation all of the
recommendations of the 9/11 Commission. He was persistent in driving to
put those out there. His staff and mine worked very hard. We did so
right after Labor Day. I am pleased to say, once again, as a result of
the persistence and patriotism of the Senator from Arizona, most of the
contents of that original legislation are in this conference report.
Not just the establishment of the Director of National Intelligence and
the counterterrorism Center but a remarkable host of constructive and
progressive recommendations from the 9/11 Commission, which, frankly,
most of the country does not even know about yet, which I believe and
have confidence they will feel good about as they find out about them
because they go not just to transportation security, not just for
aviation, but for all modes, for border security, civil liberties, and
privacy.
In an age of terrorism, when the Government will have to be more
actively involved in our lives, we want to protect the freedom that
defines us as Americans.
There is a very progressive, farsighted section which says ultimately
we are going to do everything we can, hopefully with the assistance of
a greatly improved and organized intelligence community--and do
everything we can to capture and kill the terrorists themselves--but
ultimately we are going to win this war on terrorism by draining the
swamps of poverty and tyranny and totalitarianism in which the
terrorism has grown. We recommend and now put, with the force of law,
aggressive steps for outreach to the Muslim world. We call for economic
development in the Muslim world, for the extension of freedom's range
in the Muslim world, for the increase of exchange programs--students,
faculties, others--between the United States and predominantly Muslim
countries, which is the ultimate hope for a secure future.
So I thank the Senator from Arizona for his kind words, and I return
them to him. I hope it does not hurt his reputation, but in addition to
being a straight talker, he is a great doer as well.
Mr. President, as the Senate stands poised now to adopt this 9/11
Commission recommendation bill, I believe we are at the brink of a
turning point in our governmental history. It reflects the turning
point that occurred, tragically, outrageously, on September 11, when we
were attacked by 19 Islamist terrorists who, as someone else has said,
hated us more than they loved their own lives, and so they killed
themselves to express that hatred and took with them 3,000 innocent
Americans.
With this vote, we in Congress are saying that one era in our
history, in our national security history, has ended and another one
has begun when we search for better and different ways to protect
ourselves from our sworn enemies. We are changing from one national
security strategy to another, from a Cold-War strategy to a strategy
fit to bring us to victory in a war against terrorism.
Our purpose in this legislation all along, from its drafting through
its hearings, through the extensive negotiations and now with its
passage, was to advance a new vision of how to protect the American
people in an unfortunately new world with different dangers, where our
enemies don't distinguish between soldiers and citizens or foreign and
domestic military targets. The brilliant work of the 9/11 Commission
informed us that a lack of what they called the unity of effort, strong
leadership, accountable leadership, allowed good intelligence to slip
through our grasp, enabling the terrorists of September 11 to evade our
defenses.
I have said before and I will say it again--it is a homely analogy or
metaphor--the American intelligence community today is like a very good
football team with great players but no quarterback. This bipartisan
proposal we are about to vote on will create a quarterback, a strong
quarterback. It will upend the status quo which failed us on September
11 and on other occasions in our recent history by reorganizing many of
our intelligence agencies to create a unified command and control
structure so that one person, the new Director of National
Intelligence, will be in charge and accountable for the Nation's
intelligence operations.
When somebody asks in the future, ``Who is in charge?'' the question
will not be met with the same blank stares and nonanswers that greeted
the 9/11 Commission when they asked that question. The answer will be,
``the DNI is in charge,'' the Director of National Intelligence, is in
charge and responsible. That, we are confident, will make this Nation
and its people safer.
[[Page S12009]]
The urgency of our times has demanded prompt action, but it has not
been so prompt as to negate thoughtful consideration of just about
every sentence and word in this conference report; prompt because we
are, after all, a nation at war. A war like none other we have ever
fought, a war in which we must maximize our resources, begin anew to
meet our enemy and defeat them and find better ways to utilize the
enormously capable human intelligence assets we have and the
extraordinary technological assets we have as well to transform our
ability to defend ourselves.
It never hurts to quote Sun Tzu, the classic Chinese strategist of
war, who said:
If you know yourself but not the enemy, for every victory
gained you will also suffer a defeat. If you know neither the
enemy nor yourself, you will succumb in every battle . . .
but if you know the enemy and know yourself, you need not
fear the result of a hundred battles.
The American people know themselves. We know our strengths. We know
our purpose. We know our principles. As a result of this bill, I am
confident we will better know our enemy and, therefore, have much less
cause for fear.
I want to say a final word about the families, the survivors of
September 11, because they truly were our inspiration throughout this
journey to reform. They insisted on the creation of a 9/11 commission
and they insisted that its recommendations be acted upon by Congress
and supported by the President. That is exactly what has happened,
across party lines, across Chambers, the executive branch and
legislative branch, working together. This is an accomplishment which
everyone here involved, and those involved at the White House, can
celebrate. But ultimately it is a victory for the American people and
particularly for these survivors of 9/11. Their self-sacrificing
courage brings us to this historic moment of reform.
I said before, the American people know themselves. If you want to
know the American people, meet the families and friends of those we
lost on September 11. They represent the best of our country. They
reflect our strength, our resilience, our values, our patriotism, our
sense of purpose, our commitment and optimism. No matter what the
obstacles, America and the American people will go on and will prevail.
We will prevail because we represent a cause, the cause of freedom, the
cause of opportunity. I hope and pray the passage of this legislation
will help the families of 9/11 find some peace, as I am confident it
will help all Americans find cause for greater confidence in our
Nation's future security.
I thank the Chair and yield the floor.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Mr. President, we are on the verge of voting on historic
legislation, landmark legislation that will reform our intelligence
structure to allow us to better fight the war against terrorism and to
counter future security threats. We will be taking a structure that is
characterized by stovepipes, by a lack of sharing of information, that
was so indicated in the 9/11 Commission Report as being a major cause
of intelligence failures. The 9/11 Commission, over and over again,
described the good people in our Government straining against
structures that did not allow them to communicate effectively vital
information; thus, no one assembled the pieces of the puzzle that might
have allowed us to detect the hijackers' plot against our country.
We have reorganized the intelligence agencies into a new structure
where one person clearly will be accountable and responsible. The new
Director of National Intelligence will be able to marshall the
resources we need to counter the threat to our citizens. We have a
National Counterterrorism Center, a National Counterproliferation
Center designed to bring together analysts from all the agencies so
they can pool their talents, analyze the intelligence, and produce
better informed reports.
This legislation will help make America more secure, and that is what
this entire debate is all about. As my colleague, Senator Lieberman,
has eloquently stated: The status quo failed us. Our bill may not be
perfect. As the Presiding Officer indicated, no bill is. But it
represents an enormous improvement over the status quo.
We cannot turn away from the intelligence failures that have cost the
lives of thousands of American citizens. We have to act. I am very
proud that the Senate today will approve historic legislation that will
make our country more secure.
Mr. President, I know Senator Frist plans to come down and speak
right before the vote, and he has arrived on cue. I do want to take
this opportunity to request the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.
Ms. COLLINS. I thank all of my colleagues for their help and support.
Mr. FRIST. Mr. President, as we approach this truly historic vote, I
want to once again thank those who have labored so hard to get to this
point over the last days, weeks, and literally months.
Senators Collins and Lieberman, the chair and ranking member, deserve
our highest praise--we oftentimes say that, but I mean it literally--
for their professionalism, dedication, persistence, and bipartisanship,
which is something that we stressed up front from day one, when Senator
Daschle and I first talked after the 9/11 Commission recommendations
came. It has been there throughout. I say thank you.
John McCain also stands out as someone who endeavored to give the
9/11 Commission life and to add many key elements to the Senate bill,
many of which are in this legislation, all of which work toward the
implementation of those 9/11 Commission recommendations. Senator Warner
and Senator Stevens both labored to make sure we got the intelligence
support to the military right, to make sure we did this in the correct
way. Jon Kyl, part of our leadership team, worked hard on issues. I
thank Pat Roberts for his diligent and persistent efforts. A whole host
of Members on both sides of the aisle have participated.
I want to mention Denny Hastert, who played a critical role in
bringing this legislation to fruition, which played out before the
American people over the last several weeks. We would not be here right
now without the unflagging leadership of President Bush to fight the
war on terror and to meet the greatest challenge of our time. His
commitment has been steady. It has involved direct participation. He
made it clear to me from day one that it is his highest priority to
make America safer.
This bill moves America into a position where we can say--once he
signs the bill--that America will be safer.
Lastly, I thank the 9/11 families, without whom much of the momentum
simply would not have been there to see this bill all the way through.
They inspired us, they turned their personal tragedies into action, and
it is manifested in the bill.
In the 3 years since the 9/11 attacks, we learned a lot about our
Nation's vulnerabilities, our strengths, and the steps that we must
take, many of which we are taking today in this bill. The bill will
certainly make our Nation safer. Much more needs to be done, and we all
recognize that; but this is a major leap forward.
As I said earlier, strengthening America at home and abroad, moving
America forward in the pursuit of freedom and prosperity, and
protecting the American people in our homeland have been the driving
motivations of the 108th Congress, and they are captured in this bill.
Mr. President, I believe we are ready to proceed to a vote. At this
juncture, I will yield back all time.
The PRESIDING OFFICER. All time is yielded back. The question is on
agreeing to the conference report to accompany S. 2845, the
Intelligence Reform and Terrorism Prevention Act of 2004.
The yeas and nays have been ordered. The clerk will call the roll.
The legislative clerk called the roll.
Mr. McCONNELL. The following Senators were necessarily absent, the
Senator from Missouri, Mr. Bond, the Senator from Colorado, Mr.
Campbell, the Senator from Utah, Mr. Hatch, the Senator from
Mississippi, Mr. Lott, the Senator from Oklahoma, Mr. Nickles, and the
Senator from Oregon, Mr. Smith.
Further, if present and voting, the Senator from Utah, Mr. Hatch,
would have voted ``yea.''
[[Page S12010]]
Mr. REID. I announce that the Senator from Iowa (Mr. Harkin), the
Senator from South Carolina (Mr. Hollings), and the Senator from Hawaii
(Mr. Inouye) are necessarily absent.
I further announce that, if present and voting, the Senator from Iowa
(Mr. Harkin) would vote ``aye.''
The PRESIDING OFFICER (Mr. Coleman). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 89, nays 2, as follows:
[Rollcall Vote No. 216 Leg.]
YEAS--89
Akaka
Alexander
Allard
Allen
Baucus
Bayh
Bennett
Biden
Bingaman
Boxer
Breaux
Brownback
Bunning
Burns
Cantwell
Carper
Chafee
Chambliss
Clinton
Cochran
Coleman
Collins
Conrad
Cornyn
Corzine
Craig
Crapo
Daschle
Dayton
DeWine
Dodd
Dole
Domenici
Dorgan
Durbin
Edwards
Ensign
Enzi
Feingold
Feinstein
Fitzgerald
Frist
Graham (FL)
Graham (SC)
Grassley
Gregg
Hagel
Hutchison
Jeffords
Johnson
Kennedy
Kerry
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Lugar
McCain
McConnell
Mikulski
Miller
Murkowski
Murray
Nelson (FL)
Nelson (NE)
Pryor
Reed
Reid
Roberts
Rockefeller
Santorum
Sarbanes
Schumer
Sessions
Shelby
Snowe
Specter
Stabenow
Stevens
Sununu
Talent
Thomas
Voinovich
Warner
Wyden
NAYS--2
Byrd
Inhofe
NOT VOTING--9
Bond
Campbell
Harkin
Hatch
Hollings
Inouye
Lott
Nickles
Smith
The conference report was agreed to.
Mr. DASCHLE. 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. NELSON of Florida. Mr. President, I ask unanimous consent that
the order for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Coleman). Without objection, it is so
ordered.
____________________
