Congressional Record: December 8, 2004 (Senate)
Page S11939-S12010


  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the quorum call be rescinded.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 

  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 
  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 
  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 

       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 
  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 

  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 
  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 
  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 
  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 

[[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 

  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 
       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 

    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 
       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.


       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 
       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 

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 
       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 
       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 
       ``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 

       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 
       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.
                                                 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 
  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 
  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/
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 

       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 
  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 
  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 
  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, 
  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 
  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 

[[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 
  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 
  I cannot see how the existing chains of command have been seriously 
  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 
  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 
  That is exactly the process anticipated here. The only major 
difference is it will not take 39 years to get from centralization to 
  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 

[[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 
  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, 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 

[[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 
  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 
  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 

  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 
  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 
  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 
  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 
  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 
  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 

  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 

  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 
       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 

  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 
  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 
  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 
  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 

  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 
  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 
  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 
  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 
  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 

       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 
  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 

                    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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 

  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 

  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 
  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 
  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 
  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 
  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 
  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 

[[Page S11973]]

part of this legislation--the provision in section 1016 on information 
  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

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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 
  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 
  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 
  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 
  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 

  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 
  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

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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 
  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 
  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-
  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 
  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 
  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 
  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 
  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 

[[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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 

[[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 
  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 
  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 
  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 
  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

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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 
  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 
  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 
  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 

[[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 
  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 
  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 
  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 

[[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, 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
       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 
       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 
  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 
  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 
  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 
  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 

[[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 
       ``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 
  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 
  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 
       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 

  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 

[[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 
  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 

  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 
  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 

  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 
  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 
  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 
  Mr. President, the 9/11 Commission recognized a need to have one 
person in charge of our intelligence community, to prevent the kind of 

[[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 
  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 
  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 
  Since Brazil is the size of the continental United States, and these 

[[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 
  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 
  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 
  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 

[[Page S12002]]

to speak. I will yield the floor, but I reserve the remainder of my 
  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 
  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 
  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 

[[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 
  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 
  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, 
  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 

  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 
  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


       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 
       (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


       (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 
       (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

                   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 
       (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; 
       (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 
       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.


       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.


       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 
       (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.


       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 
       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 
  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 
  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 

[[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 
  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 
  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 

  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 
  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 
  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 
  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 
  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 
  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.]


     Graham (FL)
     Graham (SC)
     Nelson (FL)
     Nelson (NE)



                             NOT VOTING--9

  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