Congressional Record: September 3, 2002 (Senate)
Page S8041-S8048
[HOMELAND SECURITY ACT OF 2002]
[...]
Mr. BYRD. Madam President, I thank the majority leader for the
courtesies which have been extended to all Senators, myself in
particular because I am the one I know most about, naturally, in
listening to our concerns with respect to the legislation that is
before the Senate.
I am glad Members of this body had the opportunity during the August
recess to study the House bill, to study the substitute that will be
posed eventually by the distinguished Senator from Connecticut, Mr.
Lieberman, which substitute, of course, is the product of his very
great committee and the product in particular of the ranking member,
Mr. Thompson of Tennessee, on that committee.
I proceed today with a great deal of humility, realizing that I am
not a member of the committee. I have no particular reason, other than
the fact that I am 1 of 100 Senators who speaks on this matter today
with no particular insight from the standpoint of being on the
committee which has looked at this legislation. I have read the
newspapers. I have read and heard a great deal about what the
administration wants. I have done the best I could during the August
break, in addition to several other responsibilities I had, to read the
House legislation and the substitute which will be proposed by Mr.
Lieberman.
[[Page S8044]]
So I say to the members of the committee, and to Mr. Lieberman and to
Mr. Thompson in particular, I respect the work they have done.
I believe one of the two Senators today said there have been 18
hearings of the committee. I was not present at those hearings.
I respect the work of the committee. I have been a Member of Congress
50 years. I know something about committees. I know something about
committee hearings. I know something about the time and the energy that
are put into hearings by the Members, as well as by the staffs of the
members of the committee and the personal staffs of the Senators. I
approach this subject today somewhat timidly because I am not on the
committee but I am a Senator and I have been very concerned. The reason
I am here today is that I am very concerned about how we go about
creating the Department of Homeland Security.
First of all, I am very much for a Department of Homeland Security,
and I think I made that position clear many weeks ago. I had some
concerns with respect to the proposal the House sent over after 2 days
of debate on the House floor.
I had some concerns about the appropriations process. Senator
Stevens, distinguished ranking member of the Appropriations Committee,
and I have joined in informing Mr. Lieberman and Mr. Thompson of our
concerns. Mr. Stevens is a member of Mr. Lieberman's committee. We
informed them of our concerns in writing. They have taken our concerns,
studied them, and for the most part have dealt with our concerns. So
from this moment on, I will have no more to say about the
appropriations process because the Lieberman bill, in great measure,
puts that thing right.
I have other concerns. I am very concerned President Bush has been
promoting his Homeland Security by citing the National Security Act of
1947 as a role model for Government reorganization.
In his weekly radio address on June 8, for example, President Bush
stated that he was proposing "the most extensive reorganization of the
federal government since the 1940s. During his presidency, Harry Truman
recognized that our nation's fragmented defenses had to be reorganized
to win the Cold War. He proposed uniting our military forces under a
single Department of Defense, and creating the National Security
Council to bring together defense, intelligence, and diplomacy."
President Bush is correct to hold up the National Security Act as a
role model. Here it is. It is the perfect example of why we must move
slowly and carefully in reorganizing our government and avoid acting
too swiftly or blindly. A look at the history of the unification of the
armed forces reveals that government reorganization is not as quick, or
as simple and easy as President Bush may have implied.
Enactment of legislation providing for the unification of the
military did not occur in a matter of weeks, nor even months, but
years.
On November 3, 1943, the Army Chief of Staff, General George C.
Marshall, broke with long-standing War Department anti-unification
policy and submitted to the Joint Chiefs of Staff a proposal favoring a
single Department of War. In his book, The Politics of Military
Unification, Demetrios Caraley writes: "The conflict over military
unification that eventually led to the passage of the National Security
Act of 1947 can be said to have begun November 3, 1943." In other
words, this was the beginning of what would become a four-year struggle
in the effort to reorganize our government by unifying our armed
services.
In April 1944, the War Department submitted a unification proposal to
the House Select Committee on Postwar Military Policy. That same month,
the Committee began two months of hearings on the creation of a single
department of the armed forces. The committee concluded that the time
was inappropriate for legislation on a single department, strongly
implying that such a reorganization might be a distraction from the war
effort, and, therefore, should wait until the war was over. The
Committee report reads in part:
The committee feels that many lessons are being learned in
the war, and that many more lessons will be learned before
the shooting stops, and that before any final pattern for a
reorganization of the services should be acted upon, Congress
should have the benefit of the wise judgment and experience
of many commanders in the field.
I point out that, more than two full years had elapsed since General
Marshall's proposal, and there had been considerable congressional and
administrative activity, including a number of studies, a number of
alternate proposals, and a number of hearings, yet Congress at this
stage was nowhere close to approving the reorganization of our
government.
On June 15, 1946: President Truman, in a letter to congressional
leaders, recommended a 12-point program for unification. But
considerable opposition to reorganization still remained, and as a
result, President Truman eventually requested that the Senate drop
consideration of military unification until the next session of
Congress.
The next year, February 26, 1947, in a communication to congressional
leaders, and I was a member of the West Virginia state legislature,
President Truman submitted a unification proposal, which became the
National Security Act of 1947, that had been drafted by representatives
of the armed forces and had been approved by the Secretaries of War and
Navy, and the Joint Chiefs of Staff.
Did you catch that? President Truman submitted a proposal that had
been drafted, not by four people in secrecy in the basement of the
White House, but by representatives of the armed forces and had been
approved by the Secretaries of War and Navy, and the Joint Chiefs of
Staff.
What a difference in Administrations! What a difference in attitudes
toward government!
After President Truman's proposal was introduced in both houses of
Congress, the Senate Committee on Armed Services began hearings that
lasted for ten weeks. The House Committee on Expenditures in the
Executive Departments also conducted hearings on the proposal that
lasted from April 2 to July 1, 1947.
Meanwhile, on May 20, 1947, the Senate Committee on Armed Services
commenced an executive session "to review the testimony received in
extensive hearings on the bill and to consider proposed amendments."
Let me say that again: The Senate Committee on Armed Services
commenced an executive session--whoa--"to review the testimony
received in extensive hearings on the bill and to consider proposed
amendments."
Again, I call attention to how slowly, how carefully, and how
deliberately Congress was proceeding on this important issue involving
the national security of our country. Senators can read the report of
the Senate Committee on Armed Services on S. 758 which stressed this
very point. The report reads, in part: "In determining the most
suitable organization for national security no effort has been spared
to uncover past mistakes and shortcomings. During the hearings . . .
all phases of each plan were exhaustively examined."
Let me repeat that. The Senate Committee reported that "no effort
has been spared to uncover past mistakes and shortcomings" and "all
phases of each plan were exhaustively examined." The committee was
pointing out that Congress knew what it must do. That there would be no
rush to judgment. They were not about to be stampeded into unwise
legislation. There was no herd mentality there. They knew that what
they were doing would help decide the fate of American government and
American society for decades to come. They knew that, as the Nation's
lawmakers--and that is what we are, the Nation's lawmakers--they had to
be careful and deliberate because so much was at stake.
On July 9, 1947, after debate and amendments, the Senate finally
approved the National Security Act.
The House of Representatives was just as careful and deliberate in
considering this reorganization of our Government. The reason, the
House Committee on Expenditures in the Executive Departments pointed
out in its report, was that "both civilian and service witnesses
advised against a too-hurried consideration of the bill."
Finally, on July 19, 1947, the House began considering H.R. 4214, the
committees's version of the President's draft bill. It approved the
measure only
[[Page S8045]]
after considering 17 amendments. Nine of the amendments were approved.
On July 24, 1947, after five meetings, a conference committee
reported a compromise version of S. 758 and so The House adopted the
conference report.
Two days later, President Truman signed the National Security Act
into law, one half year after the legislation had been introduced, and
four years since General Marshall recommended unification of our armed
forces.
I realize we do not have 4 years to act in this situation. I realize
the situations are different in many ways; the circumstances are
different in many ways. I know that. But this is a government
reorganization that President Bush holds up as the role model for the
present government reorganization which we are considering. The problem
is that this administration envisions Congress approving in just a few
weeks a massive reorganization of the Federal Government that involves
22 agencies and 170,000 Federal workers.
The administration should stop reading "Gulliver's Travels" and
start reading some history, especially the history behind the
unification of our Armed Forces. If it is going to use that as the role
model, the National Security Act--the reorganization of our military,
the establishment of a Department of Defense--we should read the
history behind the unification of these Armed Forces. It is a
cautionary tale, and one that the administration and we would do well
to remember.
I am very concerned that 30 years from now, Congress will be
struggling to rectify the problems that we will be creating with hasty,
ill-considered enactment of the Department of Homeland Security. There
was all this rush, there was all this hue and cry that we ought to get
this done before Congress goes out for the August recess. The House
passed this bill after 2 days of floor debate and took off a week
earlier than the Senate did. Then there was the idea we ought to do
this by September 11.
What we need to do is to develop a product that works. We need to
have legislation enacted by Congress and signed by the President that
is right, not something that is hurriedly passed just to conform with
an artificial deadline on the calendar. How much harm could be done in
the meantime can be imagined. I am referring to damage to the rights
and the liberties that we hold most dear: civil rights, labor rights,
labor protection, civil liberties of all Americans. I am talking about
damage to our constitutional process. We can inflict damage upon the
constitutional process if we act in haste, and that damage perhaps
cannot be and will not be rectified for years to come. We must not
inflict damage on our constitutional processes.
President Bush's proposed Department of Homeland Security is an
enormous grant of power to the executive branch. I hope that everyone
who hears me will understand that--an enormous grant of power to the
executive branch. It constitutes control of 170,000 Federal workers and
a huge piece of the Federal budget. It will mean a major change in the
governmental infrastructure of our Nation.
This may be for keeps. This may be the infrastructure that will last
through the lifetimes of at least some of us. And we cannot and must
not close our eyes to the threats that are involved here, by well-
intentioned people I am sure, the threats to the constitutional
processes that have guided this Nation for 215 years and should
continue to guide it in the future.
This Constitution is good enough to guide us through whatever
emergencies may confront this country. We must not cede this power,
power that the administration wants but not necessarily needs--but the
administration wants it. Let's stop, look, and listen and be careful
what we are doing.
I wonder how many out of 100 Senators took the time during the recess
to read the House bill, to read the substitute that is about to be
proposed by Mr. Lieberman and Mr. Thompson. How many Senators took the
time to read and to ponder what we are about to do? I did. I am not an
expert on the House bill or the substitute by Mr. Lieberman. I have not
put as much time, naturally, by any means, in my study of the Lieberman
substitute as has he or his counterpart or the members of that
committee.
So the members of that committee knew very well what was in the bill.
But how many other Senators took the time to sit down and read and mark
and underline and think about the words, the phrases, the sentences
that are included in this substitute and in the underlying bill?
Let Senators remember that once we pass a bill in the Senate, which
we must and which we will, then we in the Senate--half of the
legislative branch, this half, except for the committee conferees--will
be out of it. I don't bemoan the fact that I will be out of it, but
most of the Senate will be out of it. We will have said our piece. We
will have made our press releases. And we will have had an opportunity
to offer amendments.
But how many of us are prepared to offer amendments? How many of us
have read this legislation? How many in the media know what we are
talking about and what is in this legislation? The people out there,
280 million of them, who are represented by 100 Senators, do not have
the slightest idea what is encompassed in this legislation. They have
heard the President on the campaign trail talking about this bill: pass
it, pass it, pass it. They have heard others in the administration. I
don't have any criticism of that. They naturally want this bill passed.
We need to look at it. We Senators have a duty to study it and to
take the time and, if necessary, offer amendments where we believe
amendments should be offered and the Senate must be given the
opportunity to work its will. And it will work its will.
But I am concerned. That is where I am coming from, and I am sure
there are other Senators who would be equally concerned if they read
these bills. But they have been busy. Senators are very busy people. I
know that.
In a recent column, David Broder wisely pointed out that because the
mission of the Department of Homeland Security "is so large and its
scale is so vast, it is worth taking the time to get it right."
That is David Broder, and he got it right when he said that. I will
continue with his words.
It is worth taking the time to get it right. Having the
bill on the President's desk by the symbolic first
anniversary of the terrorist attacks is much less vital than
making the design as careful as it can be.
Hallelujah. That was David Broder. He is right.
Now let me read what he said without my editorial comment. He said: .
. . the mission of the Department of Homeland Security "is so large
and its scale is so vast, it is worth taking the time to get it right.
Having the bill on the president's desk by the symbolic first
anniversary of the terrorist attacks is much less vital when making the
design as careful as it can be."
I remind my colleagues that once the genie is out of the bottle, it
is gone. It would be difficult to get it back into the bottle. This
bill is the best, if not the last, opportunity for Congress to make
sure that we are not unleashing a genie, a very dangerous genie.
I realize it is not easy to go against the administration for some of
my colleagues, in an election year especially. But our duty to our
country and to future generations compels us to do no less. And I
intend to do no less than stand on my feet and speak my thoughts. This
is what separates the men from the boys, the women from the girls, and
the statesmen from the politicians.
Madam President, how much time do I have remaining?
What is the time situation with respect to the upcoming vote?
The PRESIDING OFFICER. We are going into executive session at 12:30.
Mr. BYRD. I thank the Presiding Officer.
Madam President, I hope Senators will take a look at this morning's
Washington Post. On the front page there is a column by Gregg Schneider
and Sara Kehaulani Goo, Washington Post staff writers. The headline
reads as follows:
Twin Missions Overwhelmed TSA. Airport Agency Strives to
Create Self, Stop Terror.
This story that I am about to take excerpts from tells exactly why we
ought to take time and do this right.
I read from the column:
When a gunman opened fire at a Los Angeles International
Airport ticket counter on July 4, the nation's new agency in
charge of airport security got its first chance to swing into
action.
[[Page S8046]]
Instead, it claimed the shooting was outside its
jurisdiction.
After bullets sprayed across the crowded holiday terminal,
killing three, the agency's director at the time, John W.
Magaw, looked on helplessly as his own spokesmen dismissed
the incident as a matter for local police and the FBI.
"That's nuts. That is nuts," Magaw said later.
But by that holiday, with the nation on edge about a
terrorist attack, Magaw had lost control of the
Transportation Security Administration. He had run the high-
profile, multibillion-dollar agency far astray from what
Congress and the Bush administration said they wanted,
alienating everyone from local airport operators to
commercial airline pilots.
Now get this. I continue to read:
The agency simply couldn't keep up with the twin demands of
creating itself and devising a system of stopping terrorists.
There you are in a nutshell. That is the problem.
Internally, there was tension over the TSA's mission, with
a growing core of leaders steeped in law enforcement at odds
with political forces demanding customer service. Magaw and
his deputies clashed with key members of Congress and the
White House over budgets and left airport managers around the
country feeling shut out.
The fact that the TSA was flat-footed on the day of the
most violent attack on U.S. aviation since Sept. 11
underscores how, after nearly a year of building a new
federal agency to take over airport security, few broad
changes have taken place.
There you are. That is our problem. We are about to create a new
department of homeland security, which I am for. I will vote for that.
Then we are about to create 6 directors, and we are about to set up a
superstructure. In this bill, once we pass the package and send it down
to the President, we are going to say there it is. You take it. It is
yours. Then the administration will have the colossal task of
transitioning, as I read it, 22 agencies.
I was talking with Senator Lieberman this morning. I was told that
more likely there will be 28 agencies and offices. There you have it,
Mr. Administration. It is yours. That is what Congress is about to do.
It is yours.
Can one imagine the chaos that is going to occur when all of these
agencies are supposed to be transitioned into the department of
security within 13 months, and the people within them. One-hundred and
seventy thousand Federal employees will have to become accustomed to a
new culture, once they are transitioned. They will have to move their
desks, their computers, and their telephones. They will have to get
acquainted with new associates. They will have new and different
missions.
When we talk about the 1947 role model of the National Security Act,
we are talking about military branches that had the same mission,
overall. Those were not different missions. These people are going to
be put into a brand spanking new, polished-chrome metal piece of toy to
guard the homeland, and to guard the people. All of these people put
into one agency are going to be concerned about their pay scales, their
worker rights, and their privacy rights--all of those things. There
they will be. All yours, Mr. President. Here it is. You asked for it.
Here it is now so Congress can stand on the sidelines for the next 13
months.
I am saying no. Congress should not stand on the sidelines for the
next 13 months. We have a duty under the Constitution to exercise
oversight and to see that the agencies are properly brought into the
six directories.
I am thinking of the same directorates the committee recommended, the
same superstructure. I am saying that is fine. But now, when it comes
to bringing in the 22 agencies or the 28 agencies or the 30 agencies or
the 25 agencies--I have heard all of these numbers; we do not even know
the number of agencies--when it comes to fusing those, what are the
criteria for this agency or that agency or some other agency or some
part of that agency? What are the criteria by which somebody is going
to have to be guided in bringing these agencies into the superstructure
and making them part of the directorates, which are parts of the new
Department of Homeland Security?
Who knows? I have not seen anything in my reading, anything in
writing. I have not heard anything in any way by which these 22
agencies--I will say 28, since Mr. Lieberman has counted them. What are
the criteria and what is going to happen?
Look at what the Post is reporting happened to the brandnew, shiny
transportation agency, the TSA. And here we are talking about 22 or 25
or 28 or 30 more agencies, putting them all in. Here, Mr. President.
Here is what you asked for. Here is the bill. You take it. That is what
we are about to do, and I do not think we should do it.
I think Congress should stay in the mix, should continue to exercise
its oversight, its judgment, give its advice, give its consent, and
vote up or down as we go along on the procedure.
Now, I am going to offer an amendment at some point. I may offer
several amendments, but the first amendment I offer will deal only with
title I, only with title I. But my concern is that Congress has a
responsibility, it has a duty to which it must face up, and that duty
is to keep a hand on this, to maintain oversight. And I think these 22
agencies--I will quit using 22; I am going to use Joe Lieberman's
figure, 28--these 28 agencies should be phased in, in an orderly
process that gives the Congress the time, as we go along, to look at
what the administration--through this new Secretary of Homeland
Security, through his recommendations--recommendations are.
Congress should not just hand this thing over lock, stock, and
barrel, to this administration, or any other administration, and say:
Here it is. You take it.
So here, in microcosm, is the problem. And we are reading about it
right here in this Washington Post of today. I won't read the whole
column right now. I may refer to it again later.
But let me proceed now by saying that the homeland security
legislation that we will be considering this week has become something
much more than mere legislation. It has become a political windstorm
blowing down Pennsylvania Avenue and through the Halls of Congress.
The President's proposal has been barreling through Congress like a
Mack truck, threatening to run over anyone who dares to stand in its
way. And Congress, so far, has cleared a path and cheered on this
rumbling big rig, without stopping to think seriously about where it is
ultimately headed. Now we are going to think seriously about it.
The President assures us that he is safely behind the wheel, and that
all we need to do is give him the "flexibility"--I use his word,
"flexibility"--he needs to fight terror immediately, and he will
handle it from there.
While the President's assurances may help some people sleep better, I
am left tossing and turning on my pillow at night. I fear terrorism as
much as anyone, and I recognize the need for constructive, decisive
action in these daunting times. But lately I have also been plagued by
the fear that, in the name of homeland security, we may be jeopardizing
liberties from within our own Government by unwittingly trading in many
of the constitutional protections which were designed by the Founding
Fathers as safeguards against the dangerous tendencies of human nature.
In Federalist No. 48, James Madison wrote:
It will not be denied that power is of an encroaching
nature and that it ought to be effectually restrained from
passing the limits assigned to it.
Now, that is James Madison:
It will not be denied that power is of an encroaching
nature and that it ought to be effectually restrained from
passing the limits assigned to it.
The President is clearly attempting to remove the limits on his
power. I don't question his good intention. Maybe he doesn't understand
what he is doing. But this is clearly an attempt to remove limits on
the Executive's power, and Congress is doing very little, up to this
point, to restrain the administration's ambitions.
I am alarmed that the President is demanding such broad authority
over an unprecedented amount of resources and information, while at the
same time asking us to eliminate existing legal restrictions to allow
him the "managerial flexibility" to respond to changing threats. His
proposal gives the Secretary of Homeland Security almost unlimited
access to intelligence and law enforcement information without adequate
protections against misuse of such information. I am willing to give
the President necessary authority to secure the Nation's safety, but I
believe we can give him flexibility without giving him a blank check.
[[Page S8047]]
In Federalist No. 48--and Senators and Representatives and other
people should read the Federalist Papers once again--in Federalist No.
48 here is what he said:
An elective despotism was not the government we fought for.
. . .
Nobody is suggesting there be an elective despotism. But I am
suggesting that we better go very carefully, as we legislate on this
proposal, that we do not release to the executive branch, by
legislation, powers that the Constitution guards against.
This is what Madison says:
An elective despotism was not the government we fought for.
. . .
We can, in this Senate, very well pass legislation that ends up
giving to any President--I am not just talking about Mr. Bush--the
powers that amount to an elective despotism. That is what I am
concerned about in this legislation--one of the things.
An elective despotism was not the government we fought for;
but one which should not only be founded on free principles,
but in which the powers of government should be so divided
and balanced among several bodies of magistracy as that no
one could transcend their legal limits without being
effectually checked and restrained by the others.
Now, that is what I am saying Congress needs to be aware of. We need
to be on guard that we do not pass legislation that, in the end, gives
a President--and there is no assurance that this President will be
President forever; he may be President for 2 more years or maybe 6 more
years. Who knows. But the Congress must be on guard in this
legislation--I know it is very tempting to vote without further delay,
without any argument, vote for a new department of homeland security.
And we ought to have it. But it will be very easy for Congress to pass
legislation that, in the end, results in elective despotism. Madison
warns us against it.
The President's proposal cripples internal oversight offices and
weakens external legal controls on the Department, including
unnecessary exemptions from public disclosure laws such as the Federal
Advisory Committee Act and the Freedom of Information Act, allowing the
Secretary to exercise his broad authority in relative secrecy.
In many of these areas, Senator Lieberman's committee, working with
Senator Thompson, has brought in a bill that is, in my judgment, much
better than the administration's proposal, which is largely reflected
by the House bill. And at the end of the day, the House bill will be
before the Senate--at some point, Mr. Lieberman will offer his
substitute--so that the Senate will have before it both the House bill
and the Lieberman proposal.
So what I am saying is not altogether, or even in great part,
criticism of the product the committee has given to the Senate. I am
stating my concerns. We cannot brush aside the House bill. It is going
to be in conference, and we are going into conference, and these
conferees are going to be up against the House conferees--the House,
which is under the control of the other party, which is in control of
the White House. So I do not envy the challenges that are going to be
before our Senate conferees. I am speaking of my concerns with respect
to one or both of these measures that will be before the Senate.
These exemptions reflect the administration's strong antagonism
toward traditional "good government" and "sunshine" laws that
attempt to cast light on government activities and subject them to
public scrutiny. The administration is seizing on this legislative
opportunity to weaken these important laws.
The administration is attempting to gut the traditional protections
for personal privacy and civil rights abuses from the new Department,
and the bill that was passed by the House of Representatives
effectively dismantles most of these safeguards. Unfortunately, the
Senate doesn't do enough, in my judgment, to restore those checks.
The Senate bill does require, very generally, that the Secretary and
the directorate for intelligence establish rules and procedures for
governing the disclosure of sensitive information. Some of this
language restricts the use of information to only authorized and
"official" purposes, but this restriction is meaningless because the
vague authority given to the Secretary allows him to claim that almost
anything he wants to do constitutes an "official" purpose.
In pressuring Congress to pass homeland security legislation, the
administration is using the "war on terror" as a red herring to draw
attention away from the underlying objectives of the administration's
proposal, which include expanding the regime of secrecy that has been
established by the White House to the 22, 25, 28, or 30 agencies of the
new Department of Homeland Security.
Once the Department has been legally shrouded in secrecy, the
President can take advantage of his broad access to information and its
vague mission and authority to command the "war" without scrutiny
from Congress or the public.
The President has proclaimed that we are entering a "new era," one
that will resemble the cold war in its concerns for national security.
His proposal marks a disturbing start for this era and I am afraid may
be a sign of things to come. The cold war began with an iron curtain
descending over Europe. Under this bill, the war on terror may have
begun with an iron curtain descending around our Government.
Congress must not defer to executive judgment alone. Congress must
not trust that this administration, or any other administration, will
always act in the best interest of the Nation. Absolute trust and
unquestioning deference are dangerous gifts for the legislature to
bestow on the executive, even when our leaders have given us no reason
for doubt.
Good intentions do not guarantee good government. As Madison tells us
in Federalist No. 51:
If men were angels, no government would be necessary. If
angels were to govern men, neither external nor internal
controls on government would be necessary. In framing a
government which is to be administered by men over men, the
great difficulty lies in this: You first enable the
government to control the governed; and in the next place,
oblige it to control itself. A dependence on the people is no
doubt the primary control on the government; but experience
has taught mankind the necessity of auxiliary precautions.
Madam President, Justice Brandeis echoed Madison's warning of the
dangers of relying on the good intentions of government. He wrote:
Experience should teach us to be most on our guard to
protect liberty when the government's purposes are
beneficent. Men born to freedom are naturally alert to repel
invasion of their liberty by evil minded rulers. The greatest
dangers to liberty lurk in insidious encroachment by men of
zeal, well-meaning, but without understanding.
I suspect that this administration means well in its desire to
mobilize the Government against terror, but so many in the
administration have come lately--not all, but some. I fear that some of
what the administration is asking for is a danger to the people's
liberty.
In our rush to reorganize the Government, we seem to have forgotten
the principles upon which the Government was founded. The Constitution
established a system of divided Government, a system that feared
tyranny more than it favored efficiency. The Constitution's separation
of powers and checks and balances were not designed to provide
managerial flexibility to any President, Democrat or Republican. They
were designed to limit the power of the state over its citizens by
ensuring that individual liberties could not be easily abridged by the
unchallenged authority of any one branch of Government.
President Harry Truman proposed the most dramatic reorganization of
the last century, creating the Department of Defense and the CIA in
response to the new threats of the cold war. But even after he presided
over such a critical moment of national security, he remained skeptical
of the need for efficiency and flexibility in the executive branch.
Truman said:
When there's too much efficiency in government, you've got
a dictator. And it isn't efficiency in government we're
after, it's freedom in government. . . .
That is Truman. That is my favorite Democratic President in our time.
Following him came Mr. Eisenhower, who I have--at least lately--come to
believe was the greatest Republican President in our time.
I continue with Truman's words:
And if the time ever comes when we concentrate all the
power for legislating and for
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justice in one place, then we've got a dictatorship and we go
down the drain the same as all the rest of those republics
have.
Madam President, the administration's proposal makes clear to me that
it is not freedom in Government the administration is after.
The Secretary of Homeland Security will become a human link between
the FBI, the CIA, and local police departments, serving as a "focal
point" for all intelligence information available to the United
States. I am concerned that in this role he may be able to circumvent
existing legal restrictions placed on those agencies to protect
individual privacy, civil rights, and civil liberties.
The Homeland Security Department will be authorized to draw on the
resources of almost any relevant agency at the Federal, State, and
local level, ranging from sensitive international intelligence compiled
by the CIA and the NSA to surveillance of U.S. citizens by the FBI and
local police. Many of these agencies were very purposely kept separate
and distinct, or were given limited jurisdiction or investigative
powers, in order to reduce abuses of power. However, when the
Department--this new Department--draws on the resources and information
of other agencies, it may not necessarily be subject to the same legal
restraints imposed on those agencies.
In addition, the civil rights officer and the privacy officer
established under the administration's plan to uncover abuses in the
Department are not given enough authority to actually carry out their
jobs. They are essentially advisers with no real investigative or
enforcement power. Both officers are responsible for ensuring
compliance with existing law, but their only legal recourse after
identifying a problem or violation is to report the problem to the
Department's inspector general.
However, the inspector general, in turn, is under no obligation to
follow up on privacy and civil rights complaints, only an obligation to
inform Congress of any "civil rights abuses" in semi-annual reports.
If and when the IG does choose to investigate, he will often be unable
to do so independently as the Inspector General Act intended, because
this plan provides that the inspector general will be "under the
authority, direction, and control of the Secretary"--now get that.
That ought to be enough to curl your hair. Let me read that again. The
inspector general will be "under the authority, direction, and control
of the Secretary"--meaning the Secretary of Homeland Security--"with
respect to audits or investigations, or the issuance of subpoenas,
which require access to sensitive information." And the Secretary can
say no if he determines certain things, which I can read into the
Record--he determines; if he determines, the Secretary; if he
determines no, the inspector general is stopped in his tracks. That is
it. Is that the way the people in this country want it to be? I do not
believe so.
Granting the Secretary control over internal investigations puts the
"fox in charge of the hen house" whenever the fox claims a national
security reason for it.
The inspector general can say: I have a national security reason. You
have to stop. You cannot investigate further. You cannot subpoena
witnesses. You cannot because Congress passed the law that the
administration wanted saying you cannot. So you stop right here in your
tracks.
Is that the way the American people want it? No.
The President's proposal also lets the fox have his way when he uses
working groups--now get this--to investigate or craft policy. Although
not included in the Senate bill, the House bill, which will be before
the Senate likewise, allows the Secretary of Homeland Security to
exempt advisory groups within the Department from the disclosure
requirements of the Federal Advisory Committee Act. The practical
effect of this authority would be to give the Secretary of Homeland
Security the ability to conduct secret meetings to craft Department
policy, minimizing interference from Congress and the public.
This would appear to expand the model of secret policymaking
currently employed in the administration, the most notable example
being Vice President Cheney's secret energy working group.
While the Federal Advisory Committee Act does exempt the Central
Intelligence Agency and the Federal Reserve from disclosure
requirements, the justification for doing so cannot support providing
the same exemption for the Department of Homeland Security.
The broad authority and domestic jurisdiction of the Department
distinguish it from the CIA which has no authority to invade the
privacy of U.S. citizens domestically and whose activities are
controlled more directly by the President in exercise of his
constitutional powers over foreign affairs. The exemption for the
Federal Reserve protects financial information and economic projections
in order to protect the integrity of the markets.
While it may be reasonable to excuse the Fed from this kind of public
disclosure, I am not comfortable in allowing the Secretary of Homeland
Security to set the level of preparedness in complete secrecy in the
same way that Alan Greenspan sets interest rates.
The Federal Advisory Committee Act already allows waivers for
sensitive information, so there is no compelling national security
justification for providing this blanket exemption. Removing this
exemption would not eliminate the Secretary's ability to convene
committees in secret, but it would make the Secretary and the President
more accountable--more accountable--for choosing to do so.
The President is authorized under existing law to determine which
committees should be exempt from disclosure for national security
reasons, and he must explain himself every time he does so. The bill
passed by the House allows the Secretary to exempt committees at will,
while only paying lipservice to Congress. Both the House bill and the
Senate bill provide an unnecessary exemption, in my viewpoint, from the
Freedom of Information Act for critical infrastructure information
provided by private corporations.
The FOIA requires public disclosure of Government materials on
request, but it already provides exemptions for national security
information, sensitive law enforcement information, and confidential
business information. The administration's proposal extends these
exemptions to include any information voluntarily submitted by
corporations to the Department. As a result of this exemption, this
corporate information could not be released under the Freedom of
Information Act for other enforcement purposes, so corporations would
be allowed to escape liability for any information they submit.
I have argued, Madam President, that parts of this bill should be put
off to allow enough time for informed deliberation. I reaffirm my
objections to rushing into all of these agency transfers and new
directives. However, these secrecy problems have to be addressed also.
The President has said that how we respond to this crisis will
determine what kind of legacy we leave. I agree with the President on
that point. That is exactly why I suggest to the Members of the Senate
we should take time to remember the legacy that we have inherited, a
legacy of liberty and limited Government, and preserve these principles
in the legacy that we will bequeath.
This new Department is going to be with us for some time, so we must
think beyond the next election and act with an eye to the future. This
Congress needs to make sure we will have some recourse in the event
that the administration's reorganization does not live up to all of its
promises. Congress has a role to play in the ongoing supervision of the
Federal Government, and we should not compromise that role by hastily
surrendering our constitutional powers.
I yield the floor.
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