Congressional Record: September 17, 2002 (Senate)
Page S8644-S8649
HOMELAND SECURITY ACT OF 2002
The PRESIDING OFFICER. Under the previous order, the hour of 2:15
p.m. having arrived, the Senate will now resume consideration of H.R.
5005, which the clerk will report by title.
The assistant legislative clerk read as follows:
A bill (H.R. 5005) to establish the Department of Homeland
Security, and for other purposes.
Pending:
Lieberman amendment No. 4471, in the nature of a
substitute.
Thompson/Warner amendment No. 4513 (to amendment No. 4471),
to strike title II, establishing the National Office for
Combating Terrorism, and title III, developing the National
Strategy for Combating Terrorism and Homeland Security
Response for detection, prevention, protection, response, and
recover to counter terrorist threats.
Lieberman amendment No. 4534 (to amendment No. 4513), to
provide for a National Office for Combating Terrorism, and a
National Strategy for Combating Terrorism and the Homeland
Security Response.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. Mr. President, under an order previously entered, it is my
understanding the Senator from West Virginia has the floor; is that
right?
The PRESIDING OFFICER. The Senator is correct. Under the previous
order, the Senator from West Virginia is recognized.
Mr. BYRD. Mr. President, I thank the Chair and I thank the
distinguished Democratic whip.
Mr. President, I want to be sure that Senators understand the
parliamentary situation in the Senate at this point.
Last Thursday, the Senate voted on a motion to table the Thompson
amendment to strike Titles II and III of the Lieberman substitute.
Title II would establish a new National Office for Combating Terrorism
within the Executive Office of the President whose Director would be
confirmed by the Senate and made accountable to the Congress.
That is incredibly important. The National Office for Combating
Terrorism was viewed by our good colleague, Senator Lieberman as a
central part of his homeland security bill. Title II was carried over
from his original bill that was introduced last May, before the White
House endorsed the idea of creating a new Department of Homeland
Security.
But the motion to table the Thompson amendment to strike Title II
failed by a vote of 41-55 last Thursday. Senator Lieberman conceded the
victory to Senator Thompson, and urged the Senate to accept the "the
next best idea." Senator Lieberman offered a scaled down version of
Titles II and III as a second degree amendment to the Thompson
amendment.
It was at that point that I gained the floor and have held it until
today.
So I find myself in a position that I had not intended--and not an
easy position. I have often felt, in recent days, as if this 84-year-
old man--soon to be 85; within a few days--is the only thing standing
between a White House hungry for power and the safeguards in the
Constitution. That is not bragging, that is lamenting.
This is not the way it ought to be. This will not go down as one of
the Senate's shining moments. Historians will not look back at this
debate and say that we fulfilled the role that was envisioned by the
Framers.
This Senate should have the wisdom to stand for this institution and
the Constitution. It is not our duty to protect the White House. It is
our duty to protect the people--those people out there looking through
their electronic lenses, the people who come here from day to day,
these silent individuals who sit up here in the galleries. They do not
have anything to say. They are not allowed to speak under the Senate
rules, but they sit and watch us. They are looking over our shoulders,
as it were, and they expect us to speak for them. They will help to
ensure that the interests and the rights of the American people are
protected. That is what these people want. They want us to assure that
their interests--the people's interests--and the rights of the American
people are protected.
I have been joined by a few voices on this floor in recent days, and
I thank them. I feel that at least some Members are beginning to view
this legislation as doing much more than merely setting up a new
Department of Homeland Security.
I have also heard from citizens across the country who have urged me
never to give up. Well, I can assure them that as long as I am
privileged to serve in this body I will never give up defending the
Constitution.
I heard Condoleezza Rice last Sunday, and I heard Dr. Rice the Sunday
before.
I heard Secretary of State Powell last Sunday on television, and I
heard him the Sunday before.
I have listened to Secretary Rumsfeld, and I have listened to Vice
President Cheney on television.
I have listened to various and sundry Senators on television. I have
listened to various and sundry other spokespersons on television.
I read the op-ed piece of former Secretary of State Shultz in the
newspaper Sunday a week ago.
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I read the op-ed piece of former Secretary of State James Baker in
the paper this past Sunday. And I hear many persons in the media--not
everybody but some in the media--who seem to be intent upon galvanizing
this and making this country ready for war. Not one of these people
have I heard--maybe I missed it--refer to the Constitution. I take an
oath, and so does every other Senator, to support and defend the
Constitution of the United States against all enemies, foreign and
domestic. Nobody says anything about the Constitution in this debate
that is raging over the country.
There is a great fervor, and there is a great wave of opinion being
created. And some in the media are doing it, or helping to create it.
They have their minds made up. We are off to war.
I can hear the bugles, and I can see the flag. I can see the sunlight
tinting on the bugles as they pass, and the flag I see going already. I
can hear the guns. There is a great fervor here, and I hear the war
drums being beaten. It is as though we have our minds made up. It is as
though the President is already ready to go. And there is a developing
hysteria in this country saying: Let us go to war. We have our minds
made up.
Nobody stands up against that. But the Constitution is a barrier--
this Constitution which I hold in my hand. This Constitution says
Congress shall have the power to declare war. It doesn't say the
President shall have power to declare war. It doesn't say the Secretary
of State shall have power to declare war. Congress shall have power to
declare war. But who is bothering to mention Congress? Who is bothering
to mention the Constitution? It has become irrelevant, as far as some
of the commentators and columnists and editorial writers are concerned,
it seems to me. That is my impression. The Constitution has become just
an old piece of paper. It was great 215 years ago but not now. Events
have overtaken the Constitution. Nobody mentions it.
I haven't heard Dr. Condoleezza Rice mention it on her television
appearances. I haven't heard the Secretary of State mention the
Constitution. I haven't heard the Secretary of Defense mention the
Constitution. I haven't heard the Vice President of the United States
say a word about the Constitution when he discusses the business of
going to war.
Has it become irrelevant? Are we to sit supinely by and be swept up
in this national fervor that is being developed, that is being created
to stampede this country into war? Are we to sit silently by?
Well, I want to assure the people that as long as I am privileged to
serve in this body I will never give up defending the Constitution. And
the Constitution is front and center to this business that we are
discussing--the issue of war and peace. The Constitution is front and
center.
Why, there are some who will get on the national television
programs--they do not invite me; I don't expect them to mention the
Constitution. Why is it? Why is that?
Here is the Vice President, the President of this body right here
under the Constitution, who can't address the Senate except by
unanimous consent, but when he is on national television on these
programs, why doesn't he mention the Constitution? Is this Constitution
irrelevant? They take for granted, I suppose, that the United Nations
is the chief authorizer of America marching off to war.
I am for what the President did the other day. He went to the United
Nations. He has pointed the finger, as it were, at the United Nations,
and said the United Nations has been recreant in its duty and recreant
in its responsibility to enforce its resolutions. I think he laid down
an excellent case in making that point.
But we also have a duty here. We have a duty to uphold this
Constitution and what it says about declaration of war and what it says
about Congress.
Why, it is as though the Constitution is something that went away
with the winds of yesterday--gone.
I can assure the people I will never give up defending this
Constitution. It is my sworn duty. At some point, however, I will have
to relinquish the floor. And when I do, the Lieberman amendment
presumably will be withdrawn and the Senate will vote on the Thompson
amendment. That amendment, I presume, would pass, and titles II and III
of the Lieberman substitute will be stricken from the bill.
Senator Lieberman may be right that we don't have the votes to defeat
the Thompson amendment. But what disturbs me most of all is that such
an important element of the Lieberman substitute could be stricken from
the bill so easily.
I am talking about the need to confirm the Director of the National
Office for Combating Terrorism. So I just refer to that title as the
Director.
Now, I don't think we should accept that verdict so easily.
It is unbelievable to me that people are not fighting harder for
these proposals, not only in title II and title III, but throughout the
entire bill. The issues raised by this legislation are too important to
languish without more debate in the Senate.
I know I am not the only Senator who is concerned about this bill,
but I have not heard enough voices speaking out on these important
matters. There are many, many unanswered questions which Senators need
to focus on and explore.
Of course, I can't fight this battle alone.
Meanwhile, the President and the House Republican leadership are
already turning up the heat on the Senate to pass this bill quickly.
The President even suggests that delaying this bill will endanger the
lives of the American people.
That is nice rhetoric, Mr. President, but I doubt whether anyone
believes that argument. The people are not endangered by our thorough
consideration of this legislation. The mistakes we avoid now are just
as important as getting the Department in place quickly. What is not
done well, generally, must be done over, and unintended consequences
can take years to correct.
Nevertheless, pressures are building to expedite consideration of
this bill. But in taking the floor, I hope to draw attention not only
to the fallibility of passing this bill without a confirmable White
House Homeland Security Director, but to other portions of this bill
that should make Senators question the rush to enact this legislation
so quickly.
My hope is that Senators will consider the gravity of this
legislation before they simply jump on board somehow. This homeland
security legislation will have important consequences not only for the
lives of all Americans, but for the American way of life as well.
Mr. President, the security of the American people, on American soil,
is, and has always been, our Government's most solemn responsibility.
September 11 added a new dimension and urgency to that duty.
The bill before the Senate seeks to enhance our Government's ability
to protect the American people from the devastation of another
terrorist attack by creating a new Department of Homeland Security.
I have been for that. I was for that before President Bush was for
it.
That is a very ambitious goal. It is a worthy and honorable goal born
of commendable intentions. But if we do not move with great caution--if
we do not slow down just a little bit--move with great caution--and
deliberation in our work, we will risk undermining the very purpose to
which we are dedicated.
My concerns about the proposed legislation are many. They are legion.
While we can all embrace the concept of a new Department of Homeland
Security, there are many, many pitfalls ahead for such an endeavor in
the complicated new atmosphere of what has been called a "war" on
terrorism.
I have made several comments about the threat that this new
Department poses to the civil liberties--hear me now--to the civil
liberties of the American people. And that is not just hyperbole.
Twenty-six leaders of conservative organizations across this country
released a statement this month urging the Senate to exercise
"restraint, caution, and deeper scrutiny before hastily granting
unnecessary powers to a homeland security bureaucracy."
So, you see, that was not just Robert Byrd talking. That was not just
an 84-year-old man, soon to be 85, talking.
Let me say that again. Twenty-six leaders of conservative--get that--
conservative organizations across America released a statement this
month urging the Senate to exercise--and I quote--
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"restraint, caution, and deeper scrutiny before hastily granting
unnecessary powers to a homeland security bureaucracy."
They wrote that:
[T]he popular enthusiasm for such a centralization and
bureaucratization in the name of homeland security may prove
unwise. Proposed legislation not only increases the growth of
the federal bureaucracy but establishes an infrastructure,
legal and institutional, which, if abused, could lead to
serious restrictions on the personal freedoms and civil
liberties of all Americans.
In case there are any latecomers to hearing this Senate, just now, I
am talking about 26 leaders of conservative organizations across
America who released a statement this month urging the Senate to slow
down. They wrote--and I quote again:
[T]he popular enthusiasm for such a centralization and
bureaucratization in the name of homeland security may prove
unwise. Proposed legislation not only increases the growth of
the federal bureaucracy but establishes an infrastructure,
legal and institutional, which, if abused, could lead to
serious restrictions on the personal freedoms and civil
liberties of all Americans.
"All Americans."
September 11 was a shock to this Nation, and the fear, anger, and
alarm it engendered have not, as yet, vanished. My concern is that in
our zeal to see to it that terrorists never again defile our homeland,
we will unwittingly cede some of our precious freedoms and blur the
constitutional safeguards that have been the basis for our liberties
and the check against an overreaching executive for 215 years, or
thereabouts.
Let me make it clear that I am not accusing anyone of deliberately
trying to exploit our national tragedy.
Rather, I believe that in our shock and revulsion, our collective
determination to prevent further horrific attacks may change our Nation
in fundamental ways that will eventually surprise and dismay all of us.
How terribly ironic it would be if it were our response to the
treachery of al-Qaida which dealt our constitutionally guaranteed
freedoms the most devastating blow of them all.
I believe that all of those in Government, those of us in Government
who are challenged with confronting the horrible reality of what
happened on September 11, have not, even yet, come to grips with
certain fundamental realities. We must all begin to face certain
truths.
Terrorism is a worldwide force, and our ability to prevent it at home
or contain it abroad is limited--is limited--at best.
An enemy in the shadows, living among us and using our own openness
and freedoms to attack our infrastructure, and to cripple and kill our
citizens, is unlike any enemy we have ever before known.
No Government Department can ever guarantee complete safety from this
kind of threat in a world increasingly connected by trade, travel,
electronic communication, migrating populations and open borders. But,
we can do our best to anticipate vulnerabilities, protect critical
infrastructure, and respond to possible devastation or deliberately
spread disease.
Yet, we can never be perfectly safe from the scourge of a terrorist
attack. That is reality. And handing over our precious liberties and
hard-won principles on such topics as worker rights, openness in
government, the right to privacy and civil liberties--that is what is
involved here--will not change that unfortunate and troubling reality.
Such a course, blindly followed in the name of fighting terrorism,
would be disastrous. Hear me. It is understandable that this
administration, or any administration so consumed with the need to
prevent another such horrific attack, might become so zealous and so
focused on that mission that important freedoms could be trampled or
relegated to a secondary position in our national life. If we are not
vigilant, our country could be fundamentally changed before we realize
it, in ways which we would all come to deeply regret.
Let me illustrate what I mean. Recent headlines have provided
examples of the administration's strong penchant for secrecy, and its
refusal to be confined by the law and the Constitution in its attempts
to shield its actions from public scrutiny.
Last month, a Federal appeals court in Cincinnati issued a direct
rebuke of attempts by the Administration to circumvent the
Constitution--there is that magic word--by conducting deportation
hearings in secret, whenever the government asserts that the object of
the hearings might be linked to terrorism. Writing for the three-judge
panel of the 6th Circuit Court of Appeals, Judge Damon J. Keith wrote,
"A government operating in the shadow of secrecy stands in complete
opposition to the society envisioned by the framers of our
Constitution."
The Justice Department has already conducted hundreds of these
hearings out of sight of the press and the public. In doing so, the
administration has been able to decide the fate of each of these
individuals without recrimination.
It may be that all of these hearings were conducted properly and
fairly, but there is just no way for us to know. Like so many other
actions that this administration has taken on behalf of our safety, we
have no way of knowing whether what they have done was the right thing
to do. Nobody in this administration or anywhere else is all wise. We
have no way of knowing whether the steps they have taken have really
helped to secure our safety. And we have no way of knowing whether the
actions they took may have threatened our own liberties.
The administration argued that secrecy is necessary for these
hearings because subjecting them to public scrutiny would compromise
its fight against terrorism.
The court's concurring opinion addressed the merits of the
government's position, but it pointed out that a reasonable solution to
the administration's concerns could be achieved by requiring the
Government to demonstrate the need for secrecy in each hearing on a
case-by-case basis.
Ultimately, the Court of Appeals saw the Government's argument for
what it is; namely, a danger to our liberty. The court took the clear-
headed, clear-eyed position that excessive secrecy in matters such as
these compromises the very principles of free and open government that
the fight against terror is meant to protect.
Even with the best of intentions to justify the Government's actions,
our freedoms are easily trampled when officials are allowed to exercise
the power of the Government without exposing their actions to the light
of day.
As Judge Keith wrote, "Democracies die behind closed doors."
We have also seen evidence in the news of what the executive branch
is capable of when it is allowed to operate behind closed doors. On
August 23, just last month, the front page of the Washington Post
brought news of serious abuses of the laws that allow the Justice
Department to conduct certain law enforcement activities in secret.
Thank providence, thank heaven for a free press. That is what we want
to keep. That is what we want to maintain--a free press.
The Washington Post article revealed that on May 17, a secret court
that was created to oversee the Government's foreign intelligence
activities rejected new rules proposed by the Department of Justice
that would have expanded the ability of Federal investigators and
prosecutors to operate in secret.
There you have it again--secret.
The Attorney General, John Ashcroft, wanted to tear down the walls
between intelligence officials and law enforcement officials in the
Department of Justice, allowing broad sharing of secret intelligence
information among offices throughout the Department.
Mr. Ashcroft wanted to tear down these walls for a reason. The walls
make it harder for his Department to circumvent the constitutional
obstacles faced by his investigators in trying to hunt down terrorists.
And like others in this administration, Mr. Ashcroft has little
patience or concern for the Constitution now that he is a general in
the President's "war on terror."
I voted for Mr. Ashcroft. I am not one of those who opposed his
nomination. I was one of the few on this side of the aisle who voted
for Mr. Ashcroft's nomination. I have to say, I am disappointed. But
Mr. Ashcroft is not alone. Take a look at this administration.
Haven't you heard of the shadow government? That came to light a
while back. All of a sudden, like the prophet's gourd, it just grew up
overnight.
[[Page S8647]]
Here is this shadow government. I had not been told about it. After
all, I am chairman of the Appropriations Committee in the Senate. I am
not the top Democrat in the Senate, but I am the senior Democrat in the
Senate. I hadn't been told anything about it. I am the President pro
tempore of the Senate; in other words, the President, for the time
being. If the Vice President is not in the chair, I am the President of
the Senate. I hadn't been told anything about a shadow government.
Of course, I said time and time again how this great idea about a
Homeland Security Department, at least the administration's great
plans, suddenly sprang into existence, like Aphrodite, who sprang from
the ocean foam, or like Minerva, who sprang from the forehead of Jove
fully armed and fully clothed.
All of this was a secret. We didn't know anything about this thing
hatched out of the bosom of the White House--this great plan hatched
out by four individuals in the bowels of the White House. So this White
House, this administration, has a penchant for secrecy.
I am not going to point the finger just at Mr. Ashcroft. I voted for
him. On this side of the aisle, I voted for him. He used to serve in
this body. But Mr. Ashcroft wanted to tear down these walls for a
reason. I say again, the walls make it harder, as all walls do, to get
wherever you are going. The walls make it harder for his Department,
Mr. Ashcroft's Department, to circumvent, get around, the
constitutional obstacles faced by his investigators in trying to hunt
down terrorists.
He and others in this administration apparently have little patience
and concern for the Constitution--here it is--now that he is a general
in the President's war on terror. Today is September 17, 2002, in the
year of Our Lord; this is the day, 215 years ago, when our forefathers
signed their names, the framers of the Constitution signed their names
on the Constitution. They had completed their work, which had begun
back in May 1787, and they signed their names on this Constitution.
This is the day. I will have more to say about that shortly.
But this secret court, which was created by Congress under the
Foreign Intelligence Surveillance Act, recognized the danger of tearing
down these protective walls. The act made it easier for Federal
investigators to obtain evidence through wiretaps or physical searches
when the evidence will be used for foreign intelligence purposes.
Traditional criminal investigations require a higher standard for
search warrants and wiretaps, to protect the constitutional rights of
American citizens. By trying to tear down the wall between the two, the
Attorney General was hoping to lower the bar for obtaining evidence for
criminal investigations by expanding access to secret procedures used
in foreign intelligence.
The wall between law enforcement and intelligence has always allowed
for cooperation in specific instances. In fact, this is the first time
in the history of this secret court that an administration's request
has been rejected. But this cooperation has previously been allowed to
prosecute people such as CIA mole Aldrich Ames, whose crime was
inextricably linked to foreign intelligence. If this wall had fallen,
the Justice Department would be allowed to secretly investigate almost
anyone who made an international phone call.
It is well to remember that the Patriot Act, passed in the aftermath
of September 11, already lowered the bar for bypassing due process,
privacy, and individual freedom. The Justice Department argues that the
Patriot Act also authorizes the elimination of the wall between
intelligence and law enforcement.
Couple this momentum with a new Department primed to root out
terrorism at home and abroad and a powerful new Secretary of Homeland
Security with intelligence powers that cut across traditional lines of
authority, and one can easily see the possibility for abuse and for
excess. That is why I am standing on the floor--trying to draw the
attention of the public, trying to capture the attention of my
colleagues, and trying to capture the media's attention. This is what I
am talking about.
In reacting to the court's ruling, the Justice Department said:
We believe that the court's action unnecessarily narrowed
the Patriot Act and limited our ability to fully utilize the
authority Congress gave us.
Get that. It is the phrase "fully utilize" that gives me some
special pause. Powers granted to this administration must continue to
be checked. Oh, I tell you, they need to be checked. The need for
checks on administrative powers is not just hypothetical, it is not
just constitutional; I wish more would pay attention to that aspect of
it. It has been well documented by recent Executive actions.
The most disturbing part of the secret court opinion is the
revelation that the Justice Department has already been abusing this
secret process, including 75 specific instances cited by the court in
which FBI, or Justice officials, provided false statements in their
applications for wiretaps and search orders, including one application
signed by then-FBI Director Louis B. Freeh.
The court cited these examples as evidence of the need to keep a
close eye on the Department's activities in order to prevent an
environment in which cooperation becomes subordinated to the law
enforcement agenda of the Attorney General.
While some of the abuses identified by the court occurred during the
administration of former President Clinton, rather than President Bush,
the need for oversight applies to every administration.
My concerns are not just based on who may be in the White House at a
particular moment. My concerns are based in the Constitution. These
problems transcend administrations. Administrations may come and go,
but the Constitution, like Tennyson's brook, goes on and on forever.
The war on terrorism must not be used by the executive branch--any
executive branch. Mr. Bush certainly won't be in office forever. So one
should look even beyond this administration, whatever the next
administration will be. The war on terrorism must not be used by the
executive branch as an excuse to ignore constitutional liberties behind
closed doors and to destroy the delicate checks and balances that have
made this Nation a great beacon for freedom to the world.
Congress is the leveler when it comes to precipitous actions. The
Senate, in particular, is the place intended by the Framers for cooling
off. A calm oasis where reason and cooler heads prevail against the
heat of passion has always been found on the floor of the United States
Senate, and I hope that we in this Chamber will again step up to that
traditional calling as we consider this matter in these extraordinary
times.
In an election year, all politicians like to claim we have an answer
for even the Nation's most intractable problems, but in this case we
underestimate the intelligence of the American people if we believe
that merely offering them a new Department of Homeland Security will
serve as currency to buy our way out of our continuing responsibilities
under the Constitution.
The people know that such a Department is no panacea for protection
of our homeland. They will never forgive us if we are lax in our duty
to safeguard traditional freedoms and American values based on the
Constitution as we rush to fashion a new Department, even though that
Department is intended to protect the American people from the
insidious danger of a virulent attack on our homeland.
In the name of homeland security, Congress must not be persuaded to
grant broad authorities to the administration that, given more careful
thought, we would not grant. The House has already passed legislation
to grant the President the authority to waive worker protections for
Federal employees, to place the new Department's inspector general
under the thumb of the Homeland Security Secretary, to exempt the new
Department from public disclosure laws, and to chip away at
congressional control of the power of the purse.
Close examination of the President's plan shows that the
administration is seeking more new powers which, unchecked, might be
used to compromise the private lives of the American public.
Congress must never act so recklessly as to grant such broad
statutory powers to any President, even in the quest for something so
vital as protection of our own land. So vital, the war
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on terror. We must exercise great caution. We must operate with the
clear knowledge that once such powers are granted, they will reside in
the White House with future Presidents--Republican and Democrat--and
they will not be easily retrieved.
So once such powers are granted, they will not be easily retrieved.
They will reside in the White House. And everyone who knows anything
about the Constitution and about our experience in the political arena,
anybody who knows anything about that, knows that no future President
will likely return those powers, likely give up those powers, once they
have been granted, and a Presidential veto in the future will be very
difficult to overcome, as such a veto is usually difficult to overcome.
Once the powers go down that avenue to the other end, they are gone for
a long time, and the only way they can be retrieved is by overriding a
Presidential veto. And, of course, the Senators and everyone know that
will require a two-thirds vote. It will not make a difference whether
the President is Democrat, Republican, or Independent; He will want to
keep those powers. So be careful about granting them now.
Both the House-passed bill and the Lieberman bill substitute broad
new authority to the administration to create this new Department, but
neither bill ensures that Congress remain involved. Neither the House
bill nor the Lieberman bill ensure that Congress remain involved
throughout the implementation of the legislation.
Senator Lieberman's bill takes steps to ensure that Congress is
informed as the Department assumes its duties, but under his bill this
information comes to us only after the fact. It is not enough just to
be told how the administration intends to use these statutory powers.
Congress needs to retain some prerogatives so Congress can temper and
shape the administration's exercise of these new authorities and so
Congress can temper and shape the new Department's exercise of the new
authority.
So Congress has the responsibility to make sure we do not grant broad
statutory powers to the President and then just simply walk away from
the new Department, trusting that the administration will exercise
restraint. Congress must remain involved to ensure that the orderly
implementation of the Department does not flounder and that important
worker rights and civil liberties do not fall into the breach.
Government reorganization is nothing novel. We have had Government
reorganization before. And we have from time to time found new agencies
created in the spotlight of political pressure and then left to
languish and go awry in the twilight of mundane and practical purpose.
This could be a mistake.
This administration, since the September 11 attacks, has announced at
least three major governmental reorganizations prior to the President's
proposal to create a new Homeland Security Department.
Last December, in response to numerous media reports criticizing the
Nation's porous borders, the administration proposed the consolidation
of the Customs Service and the Immigration and Naturalization Service
within the Justice Department.
Last March, following the mailing of two student visas by the
Immigration and Naturalization Service to two of the September 11
hijackers 6 months after they crashed planes into the World Trade
Center Towers, the administration announced the INS would be
reorganized, split into a services bureau on the one hand and a
separate enforcement bureau on the other.
Last May, following reports about intelligence failures by the FBI,
the administration announced a reorganization of the FBI. These
reorganizations have either produced very little or they have been
replaced by subsequent additional reorganization proposals. It is as if
we are spinning around in circles with little left to show for all of
the energy expended but dizziness.
To avoid a similar fate to this new Department, I have an amendment
to the Lieberman substitute that would ensure that the Congress
continues to play a role. The Byrd amendment would create the
superstructure of the new Department as outlined in the Lieberman bill,
but would require Congress to pass separate, more detailed legislation
to transfer the agencies, functions, and employees to it.
The Byrd amendment would not change the intent of the Lieberman bill.
Let me say this, Senator Lieberman is near the floor. I don't
necessarily have to keep the floor for the next hour. I can under the
order that had been entered. I get first recognition. But there is
still an hour in this 2-hour period before the Senate goes back to the
Interior appropriations bill. I welcome Mr. Lieberman's questions. I am
happy to discuss my amendment with him if he so desires before I give
up the floor.
My amendment would immediately create a new Homeland Security
Department. There it is. My amendment would create immediately a new
Homeland Security Department. My amendment would immediately establish
the superstructure of the six directorates outlined by the Governmental
Affairs Committee. The Byrd amendment is not designed as an alternative
to the Lieberman bill. I refer to it as the Lieberman bill. It is a
bill that has been reported by the committee which Senator Lieberman so
ably chairs. So I refer to the bill as "the Lieberman bill." Its
purpose is to strengthen. The purpose of my amendment is to strengthen
the Lieberman bill. Its purpose is to ensure a strong Department
capable of protecting our people. But its enactment would also ensure
that the guiding hand of Congress would be there to help steer the
course and stay the course.
What is more, any legislation submitted pursuant to this act would be
referred to the Governmental Affairs Committee in the Senate so that my
amendment, the Byrd amendment, would not deprive Senator Lieberman or
his committee of their jurisdiction or their expertise as we go about
implementing this new Department which will have been created by the
Lieberman bill. And, as I say, my amendment also creates that
Department. My amendment allows the Department of Homeland Security to
be established just as Senator Lieberman envisioned. But the Byrd
amendment would give Congress additional opportunities to sift through
details concerning worker rights, civil liberties, secrecy, and various
duties and functions. Equally important, it would ensure that the
agencies and the offices to be transferred into the Department can
continue to perform their important work of protecting the homeland
while the groundwork is being laid for their move to the new
Department.
Just recently we have all noted in the media that--I believe six
persons were arrested in New York, in Buffalo, NY. Six persons were
arrested. We didn't have any new Department of Homeland Security. There
is no Department of Homeland Security that has been established. Yet
the work of securing our homeland goes forward by the persons who man--
man or woman, I use the word "man" to mean both women and men--the
persons who are on the borders, who are guarding the ports of entry,
who are looking at the huge containers that come into our ports, the
persons who--right today and last night at midnight and all through the
hours of this day, yesterday, the day before, and tomorrow--will
continue to do their work even though there is no Department of
Homeland Security. The FBI was on the job. The FBI has been on the job.
And so the FBI brought about the arrest of these six persons, and they
are being held.
So I say to the President and to anyone else: Nobody is holding up
the work of proceeding with the security of our country. The people who
will secure this Nation under a Homeland Security Department, if and
when one is established, are the same people who are right now, right
this day, securing the homeland. These people have been on the job last
night, 6 months ago, and they continue to do this work. They have
expertise. They have experience. They are trained, and so on. So nobody
is holding up the security of the country. Nobody is holding that up.
That is going forward, as was seen when the FBI arrested the six
persons.
So this is vital. Ongoing reorganizations can foster chaos and
destroy worker morale. Orderliness and careful thought while we
transition can avoid overlooked vulnerabilities and missed nuances
which could signal another disaster.
With the Byrd amendment, the Lieberman bill would transfer agencies
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and functions to the Department, one and two directorates at a time,
beginning on February 3 of next year. This would then give Congress the
opportunity to gauge and to monitor how the new Department is dealing
with transition and what additional changes might be necessary. It
would provide a means to quickly address the problems that will
undoubtedly arise in the early phases of the Department's
implementation and to guard against mistakes and missteps.
The Byrd amendment would not delay the implementation of the new
Department one whit. It would actually expedite the implementation of
the new Department by providing Congress with additional means to solve
the quandaries that traditionally plague and delay and disrupt massive
reorganizations.
Here we are talking about 170,000 employees. We are talking about 28
agencies and offices--some have said 30. So this is no minor movement.
This is a major reorganization.
Moreover, the Congress could act to transfer agencies before the end
of next year, roughly the same time period outlined by the Lieberman
plan. When I say the Lieberman plan, I am talking about the bill that
was adopted by the committee, which Mr. Lieberman ably chaired. And
that is the same time period outlined by the House bill. So who is
holding up anything? Why shouldn't we stop, look, and listen here and
do this thing in an orderly way? Do it right. Not necessarily do it
now, do it here, but do it right. The Lieberman plan provides the
President with a 1-year transition period, beginning 30 days after the
date of enactment, effectively allowing up to 13 months before any
agencies are transferred.
By then forcing the administration to come back to us--which the Byrd
amendment would do--we can insist on knowing more about the plans of
the administration with its penchant for secrecy--plans which are now
only hazy outlines. So if Congress passes the Lieberman proposal or if
Congress passes the House proposal, Congress will just be turning the
thing over to the administration, lock, stock and barrel, and saying:
Here it is, Mr. President. You take it. You have 13 months in which to
do this, but it is all yours. Congress will just go off to the
sidelines. Congress will have muzzled itself.
Whereas in the Byrd plan, the Byrd plan would also transfer these
agencies. It would create a Homeland Security Department, and it would
provide for the transaction, the movement of these various agencies,
their personnel and their assets, into the new Department over the same
period, 13 months, but it would do it in an orderly process in an
orderly way, phased in, with Congress staying front and center and
continuing to conduct oversight in this massive reorganization.
We must insist on assurances that in granting more powers to this
administration and to future administrations to investigate terrorism,
we are not also granting powers to jeopardize the rights, privacy, or
privileges of law-abiding citizens.
We must insist on assurances that the constitutional rights of
Americans remain protected. We must insist that the constitutional
control of the purse by the Congress is not compromised.
We must insist on assurances that Government reorganization will not
be used as a convenient device to dismantle time-honored worker
protections.
We must insist on the preservation of our Government's constitutional
system of checks and balances and separation of powers. We have a
responsibility to do our very best as a nation to get this thing right.
If we are going to create a new Department, let's get it right.
We have a responsibility to ourselves and to future generations to
ensure that, in our zeal to build a fortress against terrorism, we are
not dismantling the fortress of our organic law--our Constitution--our
liberties, and our American way of life.
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