Congressional Record: September 4, 2002 (Senate)
Page S8155-S8180
HOMELAND SECURITY ACT OF 2002
The PRESIDING OFFICER. Under the previous order, the Senate will now
resume consideration of H.R. 5005, which the clerk will state.
The senior assistant bill clerk read as follows:
A bill (H.R. 5005) to establish the Department of Homeland
Security, and for other purposes.
The PRESIDING OFFICER. Under the previous order, the Senator from
Connecticut is recognized to call up amendment No. 4471.
Mr. REID. Madam President, will the Senator from Connecticut yield to
let me say a word or two?
Mr. LIEBERMAN. I will.
Mr. REID. Madam President, I have been a part of some conversations.
I think the two leaders are going to have Senator Lieberman and Senator
Thompson, the managers, determine what is relevant. I don't think they
are going to do that. They will follow your lead on that.
The PRESIDING OFFICER. The Senator from Connecticut is recognized.
Amendment No. 4471
Mr. LIEBERMAN. Madam President, I call up amendment No. 4471 and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report the amendment.
The senior assistant bill clerk read as follows:
The Senator from Connecticut [Mr. Lieberman] proposes an
amendment numbered 4471.
The PRESIDING OFFICER. Madam President, I ask unanimous consent that
further reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The amendment is printed in the Record of Tuesday, September 3,
2002, under "Text of Amendments.")
Mr. LIEBERMAN. Madam President, this legislation is a result of the
bipartisan work of the committee, and the occupant of the chair, the
Senator from Missouri, has been a contributing member of it. It was
endorsed by our committee on July 25 by a 12-to-5 vote. I believe very
strongly that this deserves passage by the full Senate.
The substitute I am offering was modified in two respects after the
committee held its business meetings in July. First, we added an offset
to certain direct spending in the bill related, in fact, to civil
service reform. Second, we have clarified earlier language about the
conduct of risk and threat assessment by the new Department. Both
changes were made after canvassing members of our committee and with
the approval of the majority of the committee. I will describe them in
more detail in a few moments.
This amendment, almost a year in the making, would create a focused
and accountable Department of Homeland Security to enable our domestic
defenses to rise to the unprecedented challenge of defeating terrorism
on our home soil. Our defenses are either disorganized or organized for
another day that is past.
This bill aims to reorganize our homeland defenses to meet the
unprecedented threats from terrorism that are sadly part of the 21st
century. This amendment would also create a White House office to
ensure coordination across the many offices involved in the fight
against terrorism, including intelligence, diplomatic and law
enforcement agencies, foreign policy agencies, and economic assistance
agencies that will remain outside the Department.
We recognize that the threat of terrorism on American soil will
painfully be with us for some time. Therefore, the American people
deserve and demand a Government equipped to meet and beat that threat.
This committee-endorsed bill is presented in three divisions. Division
A establishes a Department of Homeland Security, a White House office,
and a national strategy for combating terrorism. Division B
incorporates the provisions of the bipartisan Kennedy-Brownback reform
of the Immigration and Naturalization Service.
We are going to hear a lot during the debate, I am confident, about
the need for further reorganization of the constituent agencies we have
brought together in this bill. But the committee-endorsed bill actually
does undertake a massive reorganization of the one agency that just
about everyone agrees is in desperate need of reform, and that is the
INS. Division C incorporates consensus civil service reforms,
themselves the product of intensive collaboration and discussion over a
period of time--months and perhaps years--that were added as an
amendment by the bipartisan team of Senators Voinovich and Akaka.
I expect we will hear people saying that our legislation hasn't given
the President all the management flexibility he has asked for. Of
course, that is literally true because we believe the administration's
request simply went too far, usurping not only the fundamental
responsibility of Congress to adopt civil service laws, but to
undermine important protections that guard the workplace and Federal
workers against favoritism and also that create some limits on the
executive, some sense of accountability that is placed on those who
have sway over those who have chosen to serve the public as Federal
employees.
I urge my fellow Senators on both sides of the aisle to look
carefully at the reforms we have incorporated and the new flexibilities
that we do provide, which are sensible and significant indeed and, I
believe, if passed, would give the Secretary of Homeland Security more
management flexibility than any Secretary operating under current law
has ever had.
I know this promises to be a controversial discussion, a serious
discussion, and sometimes a passionate discussion. I look forward to
airing our differences, resolving them, and getting a good bill to
conference and then to the President's desk, certainly by the end of
this session.
We in the Congress have accomplished great and seemingly daunting
tasks in the past; but, honestly, I can think of few in my time in the
Senate, which is now 14 years, that have been more critical to our
common future and cry out to us to work across party lines, to raise
America's guard against the savage, inhumane, cunning threat
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of international terrorism. In fact, that is what happened on our
committee.
The legislation I offer today was, as I have said, endorsed in July.
It was endorsed in a bipartisan vote of the Governmental Affairs
Committee. That marked the end of one of many stages in the bill's
development in our committee. All told, we have been at this for almost
a year now--more than 11 months. We have worked with colleagues on both
sides of the aisle. We have worked with experts in the field in various
aspects of counterterrorism and homeland security. We have worked very
closely since June 6--when President Bush endorsed the idea of a
Department of Homeland Security--with the President and his staff at
the White House.
We gleaned insight and learned a lot from 18 hearings of the
Governmental Affairs Committee that were held after September 11 on
this subject and dozens of hearings held by other committees of the
Congress.
I must say that I am proud for our committee of the product of these
labors. This legislation puts forth a creative, constructive, and
comprehensive solution to the core homeland security challenges we now
face.
Our legislation differs in some respects, including some important
ones from the House-passed bill and also from the President's proposal.
We are going to hear people dwell on those differences for much of the
debate. That is understandable. In some ways, it would be surprising if
legislation as significant and this large were passed without dissent.
In some ways, it would be not only surprising but unhealthy. The spirit
of debate and controversy is here, and I hope out of it we will emerge
with a very strong bill. In the case of each significant difference, I
believe in the path we have taken, and I look forward to explaining
why.
Let me say again we cannot allow the differences to overshadow the
vast common ground on which we stand. Mahatma Gandhi said: "Honest
disagreement is often a good sign of progress." He had a point. With a
bill this big, as I said, I would be uneasy if the Senate began the
process in total unison.
Let's realize the underlying reality and not lose sight of it. Just
about everyone in this Chamber, on both sides of the aisle, understands
the urgent necessity of reordering and reorganizing our capabilities to
detect danger, protect Americans from attack, and respond in the event
of an incident. That consensus should guide us and should ultimately
dominate here. In fact, it is hard to find a Member of the Senate or
the other body who will say they are against the creation of a
Department of Homeland Security. People have different ideas about how
one or another piece of it might look, but there is no one I have heard
who is really against the creation of this Department.
In the end, that is because I think people understand that the
current state of disorganization in the Federal Government's apparatus
for responding to homeland security threats is dangerous. The
consensus, therefore, for responding to that disorganization is by
organizing the Federal Government better to meet those threats, to
protect our people, to protect our infrastructure, to see the threats
before they emerge through good intelligence and law enforcement, to
invest in science and technology, to make protection of the American
people at home easier and more effective. In the end, I am confident
that we will pass a bill creating a Department of Homeland Security,
and the sooner the better.
The American people understand why the creation of a strong
accountable Homeland Security Department is the best way forward. They
know that the formation of such a Department will not of itself win our
war against terrorism. Obviously, we need to continue to encourage and
support our military that is on the front lines of offense against the
al-Qaida forces that struck us on September 11 and clearly remain out
there in the shadows scheming, arming, readying themselves to strike us
again.
The disadvantage we now have in defending ourselves because of our
disorganization can no longer be afforded. Today, as former Assistant
Secretary of Defense Ashton Carter told our committee on June 26:
"Homeland security remains institutionally homeless."
It is well stated, "Homeland security remains institutionally
homeless." Everyone is in charge, therefore, no one is in charge. Our
legislation would give this vital mission a home under a single roof
and a firm foundation with someone, the Secretary, clearly in charge
with the responsible authority and accountability and hopefully the
resources to get results.
For the first time, we would require in statute close and ongoing
White House coordination of the many other pieces of the fight against
this 21st century threat--terrorism--and those pieces could not be
included in the Homeland Security Department. They include defense,
diplomacy, finance, law enforcement, and others.
For the first time, we, through this legislation, would require a
comprehensive assessment of threats and vulnerability so that we
understand the worst threats and the best ways to respond. We need a
blueprint today. We do not have it. For the first time, we would create
a new intelligence division focused on the threats to our homeland,
equipped to truly connect the intelligence and law enforcement dots
from Federal, State, and local agencies, from human and signal
intelligence, from closed and open sources, from law enforcement and
foreign sources, including particularly the Counterterrorism Center at
the CIA.
These dots were not connected before September 11. We lived to
experience the disastrous consequences of that failure.
For the first time, we would bolster emergency preparedness and
response efforts to ensure that all layers and levels of Government are
working together to anticipate and prepare for the worst. Today,
coordination is the exception, not the rule, and that is no longer
acceptable.
For the first time, we would build strong bonds between Federal,
State, and local governments to target terrorism. State and local
officials are clearly on the front lines as first responders and, as I
like to say, first preventers in the fight against terrorism.
Today, local communities are already expending funds to better
protect their people and their assets post-September 11. They are
waiting for help. They need better training, new tools, and a
coordinated prevention and protection strategy. That absence of
coordination and failure of adequate support for State and local first
responders and first preventers is no longer justifiable.
For the first time, we would bring key border and national entry
agencies together to ensure that dangerous people and goods and
containers are kept out of our country without restricting the flow of
legal immigration and commerce that nourishes the Nation.
Today, threats to America may be slipping through the cracks because
of our disorganization, and that is indefensible. For the first time,
we would promote dramatic new research and technology development
opportunities in homeland defense. This war has no traditional
battlefield, as I have said. One of the nontraditional battlefields
where we must emerge is the laboratory with science and technology.
This bill would leverage Government and academic research capabilities
and focus private sector innovation on the challenge. Today these
efforts are blurred and dispersed, and that is unwise.
For the first time under this proposal, we would facilitate close and
comprehensive coordination between the public and private sectors to
protect critical infrastructure. Fully 85 percent of our critical
infrastructure is owned and operated by the private sector, but our
Government is not now working systematically with those companies to
identify and close vulnerabilities in, for example, communications
networks, electric grids or food distribution systems. That is
unbearable.
Finally, our legislation would adopt consensus civil service reforms
to give Government new tools to manage it. These bipartisan reforms,
introduced by Senators Voinovich and Akaka, would provide significant
new management flexibility in hiring employees and shaping the
workforce, while assuring that the basic public accountability of the
civil service system is not summarily dissolved.
Under our bill, new flexibilities will increase accountability,
strengthen the chain of command, and give the Secretary and agencies
throughout our
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Government the ability to put the right people in the right place at
the right time to defend the security of the American people.
As the writer H.G. Wells once said, "Adapt or perish--now as ever--
is nature's inexorable imperative."
That is our choice today. Adapt and get stronger, or grow weaker;
adapt, or give the American people reason to live in fear; adapt, or
live at the mercy of our cruel and cunning terrorist enemies rather
than being in control of our own destiny, as a great people should be.
So that we have an understanding of why this legislation takes the
form it does, let me tell you briefly how it has evolved. It has been a
very careful and collaborative process, nearly a year in the making.
Last October, Senator Specter and I introduced legislation to create a
Department of Homeland Security. That was S. 1534. That legislation
drew heavily on the recommendation of the Hart-Rudman Commission on
National Security in the 21st Century, which was chartered by the
Secretary of Defense and supported by both the President and Congress,
with the mission of providing the most comprehensive Government-
sponsored review of our national security in more than 50 years.
The Commission released three reports in 1999, 2000, 2001,
respectively. Its third report, phase 3, entitled "Roadmap for
National Security: Imperative for Change," warned that we would soon
face asymmetrical and terrorist threats and would need a focused
Cabinet-level homeland security agency with adequate budget authority
and direct accountability to the President to detect and counter those
threats.
The Commission's conclusion, headed by our former colleagues Gary
Hart and Warren Rudman, was issued on January 31, 2001, more than a
half year before the day of darkness, September 11, 2001. Their
conclusion included this statement: "The United States is today very
poorly organized to design and implement any comprehensive strategy to
protect the homeland."
Senators Hart and Rudman, and the other distinguished members of the
Commission, made their case effectively and, I might say, eloquently.
But the attacks of September 11 tragically drove the message home as no
words could or, unfortunately, did. We were suddenly and clearly aware
that we were more susceptible than we ever expected to the brutality of
terrorism directed against innocent Americans for one reason only:
Because they were Americans.
No matter their origin, in terms of ethnicity, religion, race,
gender, age, place in life, new American or born American, but just
because they were Americans in America, they were targets. We realized
we were susceptible to that kind of violent extremism and we did not
have the organizational capabilities to leverage our strengths and
protect ourselves to the best of our ability.
So the bill I was privileged to introduce with my colleague from
Pennsylvania, Senator Arlen Specter, making it obviously bipartisan,
last October, hewed closely to the model proposed by the Hart-Rudman
Commission and also drew on recommendations made by the Gilmore
Commission and others. We called for a new Department made up of the
Coast Guard, Customs, Border Patrol, and FEMA, as well as some smaller
offices on critical infrastructure protection and emergency
preparedness.
The compelling need for such a Department was reinforced in those 18
hearings before the Governmental Affairs Committee during which 85
different witnesses testified on various aspects of homeland security.
We learned a great deal also from dozens of other hearings by other
committees on both sides of the Hill. So for those who may worry or
suggest that we are moving more rapidly than we should, this is the
record: Painstaking, deliberative, extensive consultation,
investigation, education by experts, and an openness to ideas wherever
they came from because of the critical necessity to do something to
protect our security.
As chairman of the committee, I have been guided by a maxim that was
used about foreign and defense policy, which is that partisanship stops
at our Nation's coasts. In the same way, since this new enemy, the
terrorists, has brought warfare within the United States of America, I
say when we are discussing matters of homeland security, partisanship
also must stop. That is the spirit in which our committee has gone
forward.
We discovered, whether the subject was anthrax in the mail or port
security or critical infrastructure protection, that the Federal
Government is now lacking an approach to our problems that is either
strong enough or coordinated enough to meet what we now know, post-
September 11, is the reality of the challenge to us. In other words, we
are dividing our strengths at a time when we should be multiplying
them.
Again and again, the same message emerged from the witnesses who came
before us, in big bold letters one might say: We still are not
adequately prepared for terrorism at home, and a strong Cabinet-level
Department, encompassing the key programs related to homeland security,
is the necessary first step to addressing those deficiencies and
closing those vulnerabilities.
The need for such a Department was further underscored by our
experience with the Office of Homeland Security that was established
last October by Executive Order of the President. The President
appointed Gov. Tom Ridge to fill that position. Governor Ridge is an
able, hard-working public servant. He has had the President's
confidence and his ear from the very start. But we saw then, and the
President would later acknowledge, that the office simply lacked the
budgetary and organizational authority to reshape the Federal
bureaucracy to define priorities and to get results. Only a Cabinet-
level Secretary in charge of the Cabinet-level Department could
accomplish that task.
In the debate that has already begun and clearly will go on in
consideration of this bill, the President and the administration and
their allies in this Chamber are saying we have not given the Executive
enough management flexibility. The fact is that flexibility must come
with power. It was our bill almost a year ago, in contrast to the
President's position, that wanted to give the Executive the authority
to be able to carry out the necessary changes in the Federal
bureaucracy.
So to portray somehow that this bill is protective of the Federal
bureaucracy is not right. In fact, the President's original position
that this task could be carried out by an Office of Homeland Security
did not give that office the power. It had no management flexibility
because the constituent agencies exercised the authority they had under
law which was superior to the director of the office. Therefore, in
that sense, as well as all the specific senses in which we give
management flexibility to the Executive, we are proposing a Department
with a strong Secretary. That is the way to get the job done: blend the
employees together, encourage them to work together, and set standards
for them achieving homeland security. That can only be done by a strong
Secretary.
At the same time, however, it became apparent that no single
Department could address all of the Federal programs or coordinate all
the programs of all the Federal agencies engaged in homeland security
or in the war on terrorism. Therefore, last May, Senator Specter and I
combined our proposal with legislation introduced by our colleague from
Florida, Senator Bob Graham, chairman of the Intelligence Committee,
calling for the creation of a National Office for Combating Terrorism
within the White House to coordinate Federal antiterrorism efforts
government-wide.
In contrast to the position created for Governor Ridge by Executive
Order, this office would be a Senate confirmed-position, with full
accountability and authority as well as statutory power to review
Federal budgets related to terrorism.
The combined legislation that we have before the Senate in the form
of this substitute amendment which I have introduced this afternoon,
resulted from, as I said, Senator Specter and I joining with Senator
Graham. Obviously, there is more added by the committee. That
legislation originally was introduced on May 2, and considered by the
Senate Governmental Affairs Committee on May 22 of this year, and
reported out on a 9-to-7 vote--a vote exactly split along party lines.
On June 6, we got a surprise, a welcome surprise. We gained another
supporter, a most important supporter. That was, of course, President
George
[[Page S8158]]
Bush. This, I believe, was a recognition by the President--he said so
in his own words--that the Office of Homeland Security, as it was
created by Executive Order, was just too weak to get the job done. That
is what we had been arguing for months. That announcement was followed
by a legislative proposal from the administration. We were pleased to
see the administration's bill encompass almost all the S. 2452
provisions regarding a Department of Homeland Security.
It went further, however, and also proposed that additional programs
and agencies be transferred to the new Department--and there were some
good ideas there--to ensure the new administration proposals were
properly considered and necessary adjustments made to our legislation.
As chairman of the Governmental Affairs Committee, I held four
additional hearings on aspects of the President's proposal.
Incorporating the insight from those hearings, as well as input from
extensive discussion with colleagues, including committee chairmen and
ranking members, we prepared an expanded version of S. 2452. The
expanded version went a considerable way toward incorporating the
proposals the President and the administration made that had not been
made part of our original bill. It was further amended during two very
thoughtful, constructive days of committee deliberation and was
ultimately endorsed by our Senate Governmental Affairs Committee by a
bipartisan vote of 12 to 5. That is what I offered as a substitute
amendment to H.R. 5005. The amendment I now offer is the product of
this lengthy and healthy process of consultation and deliberation. I
thank my colleagues in the Senate for indulging me in this brief
history expedition, and I want to say why I take the time to discuss
the time it took; and that is to demonstrate that we have gone a great
distance to hone this bill, to be open to input from anyone, to reach
consensus, to modify, and amplify different sections.
The Department we have designed would for the first time combine,
under a single chain of command and under the leadership of a single
Secretary who is accountable to the President and the people, dozens of
agencies and offices responsible for homeland security.
The Department's overarching mission, as stated in Section 101 of
this amendment, is twofold: To promote homeland security, particularly
with regard to terrorism; and to carry out the other functions and
promote the other missions of entities transferred to the Department as
provided by law. That is a very important statement.
As much attention as the first part of the mission, homeland
security, will get in this debate, the second half cannot be forgotten
because even though this Department's very reason for being created is
to intelligently organize our Government's homeland security efforts,
many of its constituent agencies perform vital, non-homeland security
duties, as well. They cannot and will not stop doing that work.
Our bill, in clear and unequivocal language, requires the Department
to uphold these other missions and functions.
The extent to which the constituent agencies and programs that are
brought into this Department can both protect homeland security and
continue to carry out the other responsibilities will depend on the
extent to which we in Congress, through the appropriations process, are
prepared to support this new Department.
The Secretary will be responsible for running the Department and for
developing policies and plans for the promotion of homeland security.
The legislation also charges the Secretary with including State and
local governments, tribes, and other entities who, again, are first
responders and first preventers of the fight against terrorism in every
State and city and county and town in our country. The Secretary must
consult them, with the Secretary of Defense and also State officers,
regarding possible integration of the U.S. military, including the
National Guard, into all aspects of the homeland security strategy and
its implementation. The Guard is a mighty force, with an historic
mission which was originally, of course, to protect homeland security.
It has tremendous potential in this new 21st century, in responding to
this 21st century threat to our security without making it by any
stretch, kind of a Federal constabulary. But the Guard has
extraordinary skill and equipment sophistication and can play a very
constructive role here.
We also have charged the Secretary with the responsibility of
developing a comprehensive information technology blueprint for the
Department. The Senator from Illinois, Mr. Durbin, talked quite
eloquently and effectively about one aspect of that yesterday. In
addition, the Secretary is responsible for administering the homeland
security advisory system, and for annually reviewing and updating the
Federal Response Plan for homeland security and emergency preparedness.
This is a big job. The size should make it clear how much we need the
new Department. No one in Government is performing these duties
adequately today. If they are doing the duties, they are not doing them
systematically, certainly not synergistically. There are a lot of gears
turning. Some are touching each other, some are not. Some are spinning
in isolation. We want the gears to turn together, generating torque,
producing energy, and getting results. That means more security for the
American people at home.
No one can claim that the creation of a new Department is a guarantee
or panacea for all our problems. I agree with Charles Boyd,
distinguished American, great public servant and Executive Director of
the Hart-Rudman Commission:
"There is no perfect organizational design, no flawless managerial
mix. The reason is that organizations are made up of people, and people
invariably devise informal means of dealing with one another in accord
with the accidents of personality and temperament." Even excellent
organizational structure cannot make impetuous or mistaken leaders
patient or wise, but poor organizational design can make good leaders
less effective.
That, in one sense, is what this is all about. Poor organizational
design makes good leaders less effective with unnecessary gaps,
overlaps, and bureaucratic barriers--by spreading authority and
resources too thin, by diminishing accountability, by tolerating
overlap and inefficiency--while good organizational design will empower
good leaders, hold people accountable, and enable their talent and hard
work to make a difference.
In other words, 10 gallons of gas poured into a well-designed,
efficient engine can get you long distances at high speeds, but 10
gallons poured into an old, less efficient engine won't get you very
far in a very efficient way.
That leads me to a second caution about the legislation, which is the
blueprint that we need to build a Homeland Security Department that
America needs. In a number of areas likely to be the most
controversial, I strongly believe we have chosen the right path. But it
would be arrogant of me or anyone to suggest that this legislation is
perfect. It is not. That is why we have specifically built into it room
for adjustment and refinement as the administration actually begins
moving the pieces together. And we have given them a year from the
effective date to, in fact, do that.
We require the administration to report back to Congress 6 months
after the effective date or earlier during the reorganization process,
and every 6 months thereafter, and require recommendations for changes
to law at these junctures and throughout the process.
So even the passage of this bill will be not the end of the process,
but its start; as Churchill once said in a very different context,
"not the beginning of the end, but the end of the beginning."
But the fact that we cannot guarantee perfection is no argument
against this legislation. Obviously, even our country's Constitution,
which Senator Byrd and Senator Thompson and others quite eloquently and
correctly honored and celebrated in yesterday's debate, the very
foundation of our democracy, a democracy created with as much foresight
and wisdom as any other in the history of government, was not perfect.
It has been amended 27 times. At the time, the Founders understood it
had to be built to change over time. Indeed, during the ratification
debate, Alexander Hamilton urged those who criticized the
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Constitution not to fail to approve it in what he called "the
chimerical pursuit of a perfect plan." In a more homely translation
that we constantly--at least regularly--use here: Don't let the perfect
be the enemy of the good.
Similarly, we must not fail to create this Department in pursuit of a
perfect Department. History has dropped at our feet an urgent and
necessary challenge, to reshape our Government, to protect the lives
and affirm the values of our people, for surely our terrorist enemies
are as intent on striking and destroying our humanistic, tolerant,
inclusive, free values as they are of destroying our people. We can
either meet the moment by staying focused on that goal or we can let it
pass by bickering over petty and sometimes partisan or ideological
particulars.
Let the debate go forward, but let us, as we go forward in debating
and amending this substitute amendment that I have laid down, remember
the urgent challenge the terrorists have given us and the broad ground
we all seem to occupy about most of how we should respond to that
challenge, by creating this Department.
Let's have some debates and disagreements. But when it is all over,
let's remember, not only in this bill but more generally in our values,
there is so much more that unites us, and that ultimately is our
greatest strength against our enemies, past, present, and future. We
must be certain to preserve that when this debate is done and a new
Department of Homeland Security is created.
Mr. President, I ask unanimous consent to have printed in the Record
an addendum statement, a section-by-section analysis, and a letter
dated August 28, 2002.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Mr. President, I want to share with the Senate my views on
the meaning and intent of the provisions we added to this
legislation since the Governmental Affairs Committee first
considered the bill in May and filed the accompanying report
to S. 2452. This legislation has been almost a year in the
making, and reflects the thoughtful contributions of an array
of distinguished legislators and policy experts.
Last October, I introduced legislation with Senator Specter
to create a Department of Homeland Security (S. 1534). That
legislation drew heavily on the recommendations of the United
States Commission on National Security/21st Century, also
known as the Hart-Rudman Commission. It called for a new
department made up of the Coast Guard, Customs, Border
Patrol, and FEMA, as well as some smaller offices that
specialize in critical infrastructure protection and
emergency preparedness. The compelling need for such a
department was quickly underscored in a series of hearings
before the Governmental Affairs Committee examining aspects
of homeland security. Whether the subject was anthrax in the
mail, port security, or critical infrastructure protection,
the Federal government generally did not have a strong,
coordinated approach to address the range of threats. A
strong, Cabinet-level department encompassing key programs
related to homeland security would be a vital first step to
addressing this deficiency. At the same time, however, it
became apparent that no single department could address all
of the Federal programs engaged in the war on terrorism.
Therefore, I combined forces with Sen. Graham, who had
proposed legislation to create a White House terrorism office
to coordinate federal efforts to combat terrorism government-
wide. In contrast to the position created by executive order
for Gov. Ridge, this office would be a Senate-confirmed
position with full accountability and authority, as well as
statutory power to review federal budgets relating to
terrorism. The combined legislation, the "National Homeland
Security and Combating Terrorism Act of 2002," was
introduced on May 2, 2002. It was considered by the
Governmental Affairs Committee on May 22, 2002 and reported
out on a 7-3 vote. A full account of the background and
history of that legislation is included in its accompanying
report, No. 107-175.
Before the full Senate had a chance to consider that bill,
however, the President announced his support for a Department
of Homeland Security. That announcement was followed, on June
18, with a legislative proposal from the administration. The
administration's bill encompassed almost all of S. 2452's
organizational elements regarding a Department of Homeland
Security. It went further, however, and proposed that
additional programs and agencies be transferred to the new
department. To ensure that these new administration proposals
were properly considered, the Governmental Affairs Committee
held four additional hearings. Then, working with other
committee chairmen and ranking members, I prepared an
amendment to S. 2452 that was considered at a July 24-25
business meeting of the Governmental Affairs Committee. That
expanded version of S. 2452 went a considerable way to
incorporate Administration proposals that had not been part
of the original bill. It was further amended during two days
of Committee deliberation, and ultimately endorsed by a
bipartisan Committee vote of 12 to 5.
What follows is a description of some of the key changes to
the legislation since the May 22, 2002 markup of S. 2452. It
should be considered in concert with Report 107-175, which
describes the core of the legislation--most of which is
unchanged. A complete section-by-section analysis is also
included.
As reported out of the Governmental Affairs Committee (GAC)
on May 22nd, S. 2452 created a Department of Homeland
Security with three directorates: Border and Transportation
Protection, Critical Infrastructure Protection, and Emergency
Preparedness and Response. The GAC-endorsed legislation now
includes additional programs and agencies that will be
organized into six directorates: the original three, plus
directorates for Intelligence, Immigration and Science and
Technology, an expanded version of a Science and Technology
Office in the original bill. The key changes are summarized
below:
The GAC-endorsed legislation adds the Transportation
Security Administration (TSA) to the agencies incorporated
into the Directorate for Border and Transportation
Protection. TSA was created through the Aviation and
Transportation Security Act, Pub. L. 107-71, which was signed
into law on November 19, 2001. The agency's mission is to
protect the country's transportation systems, including rail,
highways, and maritime, although currently its main focus is
to improve aviation safety. TSA's responsibilities include
meeting a series of deadlines to upgrade aviation security,
including the hiring of more than 30,000 airport security
personnel, deploying explosive detection systems and other
security equipment, facilitating airport passenger and
baggage inspection, and implementing other measures to
heighten the safety of air travel.
The inclusion of TSA in the Department will permit better
coordination of transportation security operations with other
agencies that are responsible for security at the borders.
These agencies, which include the Customs Service, Coast
Guard, Border Patrol, INS, and border inspection agents from
the Animal Plant and Health Inspection Service, are
responsible for conducting inspections of travelers and goods
entering the United States and for securing the international
boundaries the United States shares with Mexico and Canada.
TSA's mission to secure our transportation infrastructure is
closely tied to maintaining the security of the ports of
entry where these border agencies are stationed. For example,
cargo containers that pass through our ports are conveyed to
other parts of the country through our transportation system,
either on rail or the highways, and could cause significant
harm and disruption to our transportation infrastructure if
they contained explosives or were used in a terrorist attack.
It is essential for these agencies to coordinate their
efforts so that security measures are linked and more
seamlessly implemented. This process will be easier with TSA
and the key border agencies in the same chain of command.
Our transportation system must also be able to move people
and goods quickly and efficiently from the borders throughout
the country. To ensure the security of this system, TSA needs
access to key information regarding vulnerabilities and
threats. The Department's Directorate of Intelligence, which
I will describe shortly, will have the intelligence
architecture to help provide this critical information to TSA
and other agencies within the Department. By being closely
tied to that intelligence directorate, and to the other
border agencies in the Department that will be collecting
vital information, TSA will be in a better position to
prevent future attacks using the transportation system.
Finally, as a new agency TSA may be able to take advantage
of some economies of scale offered by the new Department.
Specifically, it may not need to create certain
capabilities--administrative or otherwise--that will already
exist in other components of the Department.
In S. 2452, the Customs Service was transferred intact to
the Department. This remains the case in the GAC-endorsed
legislation, which also provides that Customs will be
preserved as a distinct entity.
At the request of the Senate Finance Committee Chairman and
Ranking Member, the legislation incorporates an amendment,
adopted by the Committee and agreed to by both the White
House and the Finance Committee Chairman and Ranking Member,
which will preserve the ability of the Treasury Secretary--
with the concurrence of the Secretary--to issue regulations
on customs revenue functions that involve economic judgments
within the expertise of the Treasury Department, and which
can have a major impact on our economy and relationships with
foreign countries. These customs revenue functions include:
assessing, collecting, and refunding duties, taxes, and fees
on imported goods; administering import quotas and labeling
requirements; collecting import data needed to compile
international trade statistics; and administering reciprocal
trade agreements and trade preference legislation. The
Customs Service, reporting to the Secretary, is responsible
for administering and enforcing these laws, and indeed
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for all the Custom Service's traditional border and revenue
operations; the Commissioner of Customs is also authorized to
develop and support the issuance of regulations by the
Treasury Secretary regarding customs revenue functions. After
further review, Congress may consider legislation to
determine the appropriate allocation of these regulatory
authorities between the Secretary of Homeland Security and
the Treasury Secretary.
The legislation transfers the Federal Law Enforcement
Training Center (FLETC) from the Department of the Treasury
to the Directorate for Border and Transportation Protection.
FLETC provides basic and advanced agency-specific training
for law enforcement officers and analysts at over 70 Federal
agencies. This training allows for greater standardization of
law enforcement training that is also more cost-effective and
is taught by professional instructors using modern
facilities. Many of its key customer agencies are being
transferred to the new Department, including the Secret
Service, INS, Border Patrol, Customs Service, Coast Guard,
and Federal Protective Service. Given these relationships,
the Department will benefit from the inclusion of FLETC.
FLETC also provides training to State and local entities
and to foreign law enforcement personnel, programs generally
not otherwise available to these agencies. The programs also
enhance networking and cooperation throughout the law
enforcement community, domestically as well as world-wide.
Therefore, these programs will support and complement the
Department's efforts to work more closely with State and
local agencies as well as foreign governments to detect and
prevent acts of terrorism.
The legislation transfers the Coast Guard to the new
Department, and specifies that it be maintained as a distinct
entity. At the July 24-25 business meeting, the Committee
adopted language intended to maintain the structural and
operational integrity of the Coast Guard and the authority of
the Commandant, ensure continuation of the non-homeland
security missions of the Coast Guard and the Service's
capabilities to carry out these missions as it is transferred
to the new Department, and ensure that the Commandant reports
to the Secretary.
The language, offered as an amendment by Senators Stevens
and Collins, states that the Secretary may not make any
significant change to any of the non-homeland security
missions and capabilities of the Coast Guard without the
prior approval of the Congress in a subsequent statute. The
President may waive this restriction for no more than 90 days
upon his declaration and certification to the Congress that a
clear, compelling, and immediate state of national emergency
exists that justifies such a waiver.
The language further directs that the Coast Guard's
organizational structure, units, personnel, and non-homeland
security missions shall be maintained intact and without
reduction after the transfer unless Congress specifies
otherwise in subsequent Acts. The language also states that
Coast Guard personnel, ships, aircraft, helicopters, and
vehicles may not be transferred to the operational control
of, or diverted to the principal and continuing use of,
any other organization, unit, or entity of the Department.
Upon the transfer of the Coast Guard to the Department, the
Commandant shall report directly to the Secretary and not
through any other official of the Department.
The Inspector General of the Department shall annually
assess the Coast Guard's performance of all its missions with
a particular emphasis on examining the non-homeland security
missions.
None of the conditions in the approved language shall apply
when the Coast Guard operates as a service in the Navy under
section 3 of title 14, United States Code.
The legislation creates a separate directorate for
intelligence (DI) to serve as a national level focal point
for information available to the government relating to the
plans, intentions, and capabilities of terrorists and
terrorist organizations. To emphasize its importance to all
aspects of Homeland Security, the DI is an independent
directorate within the Department, and is headed by an Under
Secretary who reports to the Secretary.
This directorate is a new addition to the legislation since
the May 22 markup. It stems from the Administration's
proposal to create an intelligence analysis unit within the
Department. However, the President's concept has been altered
and strengthened in response to testimony before the
Committee and input from key senators. Specifically, this
proposal reflects important input from Senators Levin and
Akaka, both in negotiations and amendments offered at the
business meeting. In addition, Intelligence Chairman Senator
Graham, Intelligence Vice Chairman Senator Shelby, former
Intelligence Chairman Senator Specter and Senator Durbin
contributed key ideas.
As an independent directorate--without the operational
responsibilities of other directorates--the DI will focus on
providing intelligence analysis to all of the other
directorates in the Department, to State and local
government, and to law enforcement, for the purpose of
preventing terrorist attacks, enhancing border security,
protecting critical infrastructure, enhancing emergency
preparedness and response, and better informing our research
and development activities.
It is important to note that the new Department, through
its component organizations, will be one of the largest
generators in the government of information relevant to
terrorism. The data it obtains about persons and goods
entering the country must be better organized and coordinated
with threat data from other agencies if the new Department is
going to be able to do its job. The DI, therefore, will be
responsible for receiving and analyzing law enforcement
information from agencies of the United States government,
State and local government agencies (including law
enforcement agencies), and the private sector, and fusing
such information and analysis with analytical products,
assessments, and warnings concerning foreign intelligence
from the CIA's Counterterrorist Center in order to detect and
identify threats of terrorism and other threats to homeland
security. The Counterterrorist Center shall have primary
responsibility for the analysis of foreign intelligence
relating to international terrorism. However, the DI may also
conduct its own supplemental analysis of foreign intelligence
relating to threats of terrorism against the United States
and other threats to homeland security.
The DI's mission is critical to all the Department's
activities, as well as to the homeland security mission of
the intelligence community, law enforcement community, and
State and local governments. For this reason, unless the
President directs otherwise, the Secretary is provided with
broad, routine access to reports, assessments, analytical
information, and other information--including unevaluated
intelligence--from the intelligence community and other
United States government agencies. The Secretary will also
receive information from State and local government agencies,
and the private sector. As the President may further provide,
the Secretary is also authorized to request additional
information--either information that an agency already has in
its possession, or new information that could require further
investigation. The Secretary will work with the Director of
Central Intelligence and the Attorney General to ensure that
all material received by the Department is protected against
unauthorized disclosure and that sources and methods are
protected.
The provision also reflects an amendment by Senator Akaka
that makes the Department a full participant in the process,
managed by the Director of Central Intelligence, whereby the
intelligence community establishes overall requirements and
priorities for the collection of national intelligence.
Similarly, the Akaka amendment also makes the Directorate
responsible for consulting with the Attorney General and
other officials to establish overall collection priorities
and strategies for information, including law enforcement
information, relating to domestic threats.
The intelligence proposal reflected in the GAC-endorsed
legislation was developed after examining the
Administration's proposal and hearing from expert witnesses
on the critical need for a national level focal point for the
analysis of all information available to the United States to
combat terrorism. On June 26 and 27, the Committee held
hearings on how to shape the intelligence functions of the
proposed Department--to determine how, in light of the
failure of our government to bring all of the information
available to various agencies together prior to September 11
the government should receive information from the field,
both foreign and domestic, and convert it, through analysis,
into actionable information that better protects our
security.
The Committee heard testimony from former directors of the
Defense Intelligence Agency and National Security Agency,
from FBI Director Mueller and Director of Central
Intelligence Tenet, and from William Webster--who headed both
the FBI and CIA. It also heard from the Chairman and Vice-
Chairman of the Intelligence Committee, Senators Bob Graham
and Richard Shelby, whose investigation into the failures of
September 11 is expected to yield recommendations for broader
reforms that address long-standing and systemic problems
within the intelligence community.
Senator Graham's written testimony stated that the
Intelligence Committee's hearings thus far have uncovered
several factors that contributed to the failures of September
11--one of which is "the absence of a single set of eyes to
analyze all the bits and pieces of relevant intelligence
information, including open source material." Senator
Shelby's written testimony stated that "most Americans would
probably be surprised to know that even nine months after the
terrorist attacks, there is today no federal official, not a
single one, to whom the President can turn to ask the simple
question, what do we know about current terrorist threats
against our homeland? No one person or entity has meaningful
access to all such information the government possesses. No
one really knows what we know, and no one is even in a
position to go to find out." General Patrick Hughes, former
director of the Defense Intelligence Agency, echoed these
points. His testimony stated that, "in our intelligence
community, we currently have an inadequate capability to
process, analyze, prepare in contextual and technical forms
that make sense and deliver cogent intelligence to users
as soon as possible so that the time dependent operational
demands for intelligence are met."
The Administration's approach falls short of what we need.
A key concern is the mission and position of the intelligence
unit
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within the new Department. By making intelligence its own
directorate, our legislation recognizes that the work it does
will be instrumental to every other directorate in the
organization and to state and local authorities--not just to
federal infrastructure protection efforts. The
Administration's proposal imbeds the intelligence division
within a directorate responsible for critical infrastructure
protection. The Administration's proposal is to create an
"information analysis and critical infrastructure protection
division"--whose most important role, as CIA Director Tenet
testified before the Committee on June 27, would be "to
translate assessments about evolving terrorist targeting
strategies, training, and doctrine overseas into a system of
protection for the infrastructure of the United States." But
that is not enough. Intelligence will be crucial not only to
infrastructure protection, but to everything this Department
will do. It is not hard to imagine many threats to American
lives that do not involve infrastructure at all: a plot to
detonate a bomb in a shopping mall, for instance, or to
unleash a biological agent on a city from above.
To be most effective, the entity responsible for producing
all-sources intelligence analysis should not be charged with
implementing operational responsibilities. The danger in the
Administration's approach is that the intelligence analysis
function will be consumed by the operational needs of
critical infrastructure protection, and not focus enough on
other aspects of the homeland security fight.
There is also a practical reason why these two functions
should be under different Under Secretaries. Both are very
complex functions that have never before been performed in
our government. These are very demanding jobs and the GAC
endorsed amendment places them under different Under
Secretaries so that, like border and transportation security,
science and technology, immigration, and emergency
preparedness and response, they will receive the focused
leadership and attention necessary to succeed. Just
protecting our cyber assets--which is only one aspect of
critical infrastructure--is a daunting challenge that grows
more each year.
The Under Secretary for Intelligence, who will have to
establish and operate a robust Directorate of Intelligence to
systematically analyze the threats to our country will be
fully consumed with that function. The Under Secretary for
Critical Infrastructure Protection, whose role will be to map
the threat information to the vulnerabilities in our critical
infrastructure, and work closely with other agencies, and the
private sector to ensure adequate protective measures are put
in place, will also have a huge challenge. However, by making
the same official responsible for establishing a robust
intelligence division and protecting critical infrastructure,
the Administration's proposal underestimates the challenges
that we face in both areas.
Secondly, the President's proposal does not allow the DI
sufficient, routine access to information produced by other
parts of the Intelligence Community and other agencies. The
GAC-endorsed legislation provides the Secretary with broad,
routine access to reports, assessments, analytical
information, and other information--including unevaluated
intelligence--relating to the capabilities, intentions, and
activities of terrorists and terrorist organizations, unless
otherwise directed by the President. "Unevaluated
intelligence" refers to the substance of intelligence
reports, absent any information about sources and methods. We
use this term based on the recommendation of the Chairman of
the Senate Intelligence Committee--precisely to make it clear
that information about sources and methods, which is
generally included in "raw intelligence", will be
protected. In contrast, the Administration's proposal would
curtail the Secretary's access to unanalyzed information. The
Secretary would have routine access to reports, assessments,
and analytical information. But, except for information
concerning vulnerabilities to critical infrastructure, the
Secretary would receive access to unanalyzed information only
as the President may further provide.
At the Committee's hearing on June 27, Senator Shelby, the
Vice Chairman of the Intelligence Committee, objected to the
limitations on information access in the President's
proposal. He stated that "unlike information relating to
infrastructure or other vulnerabilities to terrorist attack--
all of which the Secretary would be given access to `whether
or not such information has been analyzed'--information on
terrorist threats themselves would be available to the
Department only in the form of what is known as `finished'
intelligence." He testified that, under Sec. 203 of the
President's proposal, the Secretary may obtain the underlying
information only `by request' or when the President
specifically provides for its transmission to the new
Department. Senator Shelby called these limitations in the
President's bill "unacceptable". Clearly, the
Administration's proposal would reinforce tendencies not to
share information among agencies that have historically been
reluctant to share. Our purpose is to remove obstacles to
information sharing--obstacles that clearly contributed to
the tragedy of September 11--not to reinforce them.
The GAC-endorsed amendment establishes a proactive DI. In
addition to helping set intelligence priorities and receiving
analysis from all other agencies in government, it would have
routine access to the unevaluated intelligence, the
information behind the reports that DHS will receive, unless
the President directs otherwise. The Secretary will also be
able to request and receive additional information (as the
President further provides) that might require agencies to
conduct separate investigations or redeploy resources. We
anticipate that the cases would be rare where an agency is
unwilling or unable to comply with the Secretary's request;
however, the President will ultimately determine how
conflicts, if any, will be resolved.
During the July 24-25 business meeting, Senator Thompson
offered an amendment reflecting the President's approach on
intelligence; however that amendment was defeated.
S. 2452 included a Directorate for Critical Infrastructure
Protection (CIP). The GAC endorsed amendment continues to
include that directorate, and expands it to incorporate
significant additions as proposed by the President. The
Directorate will be headed by an Under Secretary who is
appointed by the President with the advice and consent of the
Senate.
The CIP will combine the key entities, currently scattered
across the Federal government, that are charged with working
with the private sector and other agencies to protect various
sectors of our nation's critical infrastructure. The
authorities, functions, personnel, and assets of several
offices are transferred to the Department. These include the
Critical Infrastructure Assurance Office of the Department of
Commerce (established by Presidential Decision Directive 63
in 1998 to coordinate federal initiatives on critical
infrastructure); and the National Infrastructure Protection
Center of the Federal Bureau of Investigation (other than the
Computer Investigations and Operations Section, which the
Administration requested remain in the FBI to ensure that
it continues to have a capability to pursue computer
crimes). To these we have added several important entities
from the President's proposal: (1) the National
Communications System of the Department of Defense
(established by Executive Order in 1984 to assist the
President and others in: (a) the exercise of
telecommunications functions and (b) coordinating the
planning for and provision of national security and
emergency preparedness communications); (2) the Computer
Security Division of the National Institute of Standards
and Technology (NIST) of the Department of Commerce (which
is tasked with improving information systems security);
(3) The National Infrastructure Simulation and Analysis
Center of the Department of Energy (established to serve
as a source of national competence to address critical
infrastructure protection and continuity through support
for activities related to counterterrorism, threat
assessment, and risk mitigation); (4) The Federal Computer
Incident Response Center of the General Service
Administration (a partnership of computer incident
response, security, and law enforcement personnel to share
information and handle computer security incidents); and
(5) The Energy Security and Assurance Program of the
Department of Energy, a national security program to help
reduce America's energy supply vulnerability from severe
disruptions due to natural or malevolent causes.
Finally, the GAC endorsed legislation transfers the Federal
Protective Service of the General Services Administration
(GSA) to the CIP. The President proposed that FPS be
transferred to the Border and Transportation Protection
Directorate. The Federal Protective Service oversees security
at Federal property managed by GSA. Its expertise and mission
is to provide physical security for some of our nation's key
resources, making it more appropriate that it be combined
with the other entities responsible for physical security and
cyber security in this Directorate.
The GAC endorsed legislation establishes specialized
research and analysis units in the CIP to process
intelligence and identify vulnerabilities in key areas,
including: (a) Public health, (b) food and water storage,
production, and distribution; (c) commerce systems, including
banking and finance; (d) energy systems, including electric
power and oil and gas production and storage; (e)
transportation systems, including pipelines; (f) information
and communication systems; (g) continuity of government
services; and (h) other systems or facilities the destruction
of which would cause substantial hard to health, safety,
property, or the environment.
Among its other duties, the CIP shall be responsible for
receiving relevant information from the Directorate of
Intelligence, law enforcement, and other information to
assess the vulnerabilities of the key resources and critical
infrastructures; identifying priorities and supporting
protective measures by the Department and other entities;
developing a comprehensive national plan for securing key
resources and critical infrastructure; enhancing and sharing
of information regarding cyber-security and physical
security; developing security standards, tracking
vulnerabilities, proposing improved risk management policies;
and delineating the roles of various governmental agencies in
preventing, defending, and recovering from attacks.
The Directorate will also be responsible for establishing
the necessary organizational structure to provide leadership
and focus on both cyber-security and physical security, and
ensuring the maintenance of a nucleus of
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cyber and physical security experts in the United States
Government. Both cyber and physical security are critical to
the adequate protection of those systems on which our
nation's economy and culture depend. The CIP will be
responsible for utilizing the best modeling, simulation, and
analytic tools to prioritize the effort.
The creation of this Directorate indicates broad consensus
on the need for a single entity to coordinate a national
effort to secure America's critical infrastructure. This is a
shared responsibility of Federal, State, and local
governments along with a private sector which owns 85% of our
nation's critical infrastructure. However, unlike the
President's proposal, which combines information analysis and
infrastructure protection under one Under Secretary, the GAC
amendment places Critical Infrastructure Protection in its
own directorate where it will work closely with the
Intelligence Directorate. This was done both to elevate and
stress the centrality of intelligence analysis to all of the
Department's missions, but also because critical
infrastructure protection is a sufficiently complex and
daunting challenge that it will require the focused
leadership and attention of an Under Secretary.
As reported out of the Committee in May, S. 2452 would have
transferred the law enforcement programs of the Immigration
and Naturalization Service to the new Department, while
leaving its service functions at the Department of Justice.
However, key senators and immigration experts argued that
this course could undermine the critical task of reforming
the INS. The GAC-endorsed legislation now transfers all
immigration functions to the new Department, but specifies
that the INS be disbanded and reorganized along the lines of
a major, bipartisan reform bill, S. 2444, sponsored by
Senators Kennedy and Brownback. These senators are the
chairman and ranking member, respectively, of the immigration
subcommittee of the Senate Judiciary Committee, and have
assembled an impressive bipartisan majority of that committee
in support of their legislation. Rather than try to
characterize their handiwork for them, I am attaching a
letter from Senators Kennedy and Brownback describing the
substance of the immigration reforms now incorporated in this
legislation.
Because the work of reforming INS is very demanding, the
immigration programs will be in their own directorate, with
direct accountability to the Secretary, rather than included
as part of the Border and Transportation Protection
directorate. However, to ensure adequate coordination between
immigration programs and other agencies that operate at the
border, the legislation creates a Border Security Working
Group. This Working Group will consist primarily of the
Secretary, or his designee, and the Under Secretaries for
Immigration and Border and Transportation Protection. It will
meet at least four times a year, and coordinate matters
including budget requests, staffing requirements, and use of
equipment. This working group can also bring in other federal
agencies with border operations (such as the Drug Enforcement
Administration or the Food and Drug Administration) that are
not part of the Department, offering a critical mechanism for
government-wide coordination along the border and at ports of
entry.
The legislation also gives the Secretary regulatory
authority over the visa application process. Consular
employees at the Department of State would continue to
process visa applications. However, the Secretary would have
authority to issue regulations concerning the application
process. This would include the required procedures for
considering an application, such as whether all applicants
must be interviewed in person or what kind of
identification documents would be required. In addition,
the Secretary would have authority to station Departmental
employees oversees to consult with State Department
employees on the visa process and specific threats.
The homeland security mission will face profound
technological needs and requirements, and the challenges are
substantial. The first challenge derives from the fact that
most research and development of new technologies relevant to
homeland security will occur outside the new Department--in
other agencies, academia, and the private sector. Therefore,
the Department will require powerful tools and mechanisms to
elicit cooperation from entities external to the Department,
and to coordinate R&D efforts across a range of disparate
groups, each with their own missions and priorities, in
service to homeland security goals. The legislation attempts
to provide the Directorate of Science and Technology with the
mechanisms it needs to resolve this fundamental coordination
problem. The legislation establishes a Security Advanced
Research Projects Agency (SARPA), which is inspired by the
highly successful Defense Advanced Research Projects Agency
(DARPA) of the Department of Defense (DOD). Following the
DARPA model, SARPA will have funding, in the form of an
Acceleration Fund, to support key homeland security R&D both
within and outside of the federal government, and to leverage
collaboration on R&D between entities, particularly among the
agencies. A second mechanism provided under the legislation
is a Science and Technology Council consisting of senior R&D
officials from the agencies and other appropriate entities.
The Council will assist the Under Secretary in coordinating
interagency efforts to execute the science and technology
agenda of the Department, primarily through supporting the
development of a comprehensive technology roadmap for
establishing common priorities and allocating individual
responsibilities. Another important mechanism is the ability
to directly engage any of the Department of Energy (DOE)
national laboratory and sites through joint sponsorship
agreements in carrying out R&D activities for homeland
security purposes. With respect to bioterrorism research, the
Secretary will be able to ensure that the best researchers
are focused on developing necessary countermeasures against
biothreats by establishing general priorities for biothreat
research programs conducted at the National Institutes of
Health.
A second R&D challenge is to assure that the Directorate
will have expedient access to broad, deep, and ongoing
support for critical analysis and decision-making regarding
scientific or technical issues. To address this issue, the
legislation provides authority for the Directorate to
contract with or establish Federally Funded Research and
Development Centers (FFRDCs) to obtain independent
analytical, scientific, and technical expertise and support,
including support for risk analysis and risk management
functions. In addition, an Office of Risk Analysis and
Assessment is created within the Directorate to ensure that
such risk analysis functions are given institutional priority
and conducted internally or through outsourcing to FFRDCs.
A third challenge is for the Department to develop and
effectively manage a critical mass of internal homeland
security R&D capabilities. The legislation transfers a number
of entities from the Department of Energy, and one to be
created in the Department of Defense, that will constitute a
core scientific base upon which the Department will conduct
in-house R&D efforts central to its mission. Fundamental to
developing this in-house expertise is the ability to procure
a strong talent base and to engage them in innovative
projects quickly. In view of this, the legislation affords
the Secretary with flexible management tools to hire and
retain top flight scientific and technical personnel, as well
as to accelerate R&D and prototype projects to advance the
homeland security mission.
Intelligent and coordinated deployment of technology within
the Department is a fourth challenge that must be overcome.
Too often, government agencies are hampered and distracted
from their fundamental missions as a result of unstructured
and technically unsophisticated approaches to technology
acquisition and deployment that lead to interoperability
problems downstream. The legislation establishes an Office
for Technology Evaluation and Transition to assist the Under
Secretary in his responsibilities as the chief technology
officer and to assure his central role in testing,
evaluating, and approving new homeland security technologies
being considered by the Department for acquisition.
Lastly, the Committee recognizes that a sea of scientific
and technological expertise and resources resides outside the
walls of the Federal government, and has therefore included
several provisions to engage the private sector in
maintaining our national security. Transition of technology
is emphasized throughout the section. An Advisory Panel
consisting of experts from the private sector and academia
may be convened by the Secretary to advise the Under
Secretary and Council and promote communication with non-
federal entities. The Office of Technology Evaluation and
Transition described earlier will provide a gateway and
clearinghouse for companies with innovative technologies
relating to homeland security. This Office will also have
particular responsibility for facilitating the transition of
technologies into fielded systems for use by the Department,
other agencies, or private sector entities. Another provision
requires the Secretary to articulate a strategy and plan for
encouraging biotechnology firms, pharmaceutical companies,
and other entities to develop countermeasures against
biological and chemical weapons, with a view towards
commercial production. A fourth provision directs the Under
Secretary to establish a National Emergency Technology Guard
composed of teams of volunteer experts in science and
technology to assist local communities in responding to and
recovering from disasters requiring specialized scientific or
technical skills.
Taken in combination, the mechanisms granted by the
legislation provide the Department with an array of tools
with which to forcefully tackle the set of R&D challenges
confronting it. The legislative history and specific details
regarding the legislation are discussed in greater detail
below.
S. 2452, as reported out of the Committee on May 22,
contained a provision establishing an Office of Science and
Technology within the new Department of Homeland Security.
The underlying intent of this provision was to create an R&D
entity similar in organization and function to the Defense
Advanced Research Projects Agency, which was selected as an
appropriate model for the Department's R&D component in light
of the fact that the Department, as originally contemplated,
would have had limited capability to conduct R&D internally.
Consequently, it was determined that the Department could
most effectively initiate and promote R&D in support of its
mission through a DARPA-like entity with a lean, flexible
organizational structure joined with funding to leverage
external interagency collaboration. Since the release of the
President's proposal for the Department, and in
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response to that and additional input received by the
Committee from a broad range of contributors, including
other Member offices and experts from the scientific
research and technology communities, the scope and
responsibilities of the Office have been broadened.
The legislation redesignates the Office of Science and
Technology as the "Directorate of Science and Technology"
("Directorate"), and elevates the head of the Directorate
to the rank of a Senate-confirmed Under Secretary. This
follows the consensus view of the National Academy of
Sciences that the Directorate's chief science and technology
(S&T) official requires sufficient stature to influence and
coordinate S&T policies and activities outside the
Department. The Under Secretary will be responsible for
executing the Directorate's mission of managing and
supporting R&D activities to meet national homeland security
needs and objectives; articulating national R&D goals,
priorities, and strategies pursuant to the mission of the
Department; coordinating with entities within and outside
government to advance the R&D agenda of the Department;
advising the Secretary of the Department on all scientific
and technical matters; facilitating the transfer and
deployment of technologies critical to homeland security
needs; and generally serving as the Department's chief
technology officer.
The legislation provides a number of key components to
assist the Directorate in meeting its mission. First among
these is SARPA, the new R&D agency modeled after DARPA that
was established in the original version of the legislation
and is retained in the amended legislation. DARPA was created
in 1958 in response to the launch of Sputnik. It is an
organization that recruits outstanding scientific and
technical talent and funds high-risk, high-payoff projects
that offer the potential for revolutionary advances. DARPA's
nimble, aggressive and creative approach has consistently
produced impressive and effective war-fighting technologies.
Moreover, in the course of fulfilling its central mission,
DARPA has developed technologies with broad commercial and
societal application, such as the Internet. Of particular
significance to the Committee in selecting DARPA as a model
for the S&T apparatus in the Department is DARPA's use of its
funding to leverage R&D investments in other parts of DOD,
effectively generating a multiplier effect that maximizes
DARPA's contribution to national defense in disproportion to
its actual funding level. Over five decades, DARPA has been
recognized as one of the most productive engines of
technological innovation in the U.S. government.
While DARPA concentrates primarily on the development of
revolutionary technologies, SARPA will have a broader focus
consistent with its larger mission. Since there are many
technologies relevant to homeland security in various stages
of development and deployment, SARPA will promote a wide
range of technology development, transition, and deployment
efforts, as well as research for revolutionary new
technologies. Nevertheless, the Committee anticipates that
with an Acceleration Fund authorized at $200 million for
FY03, SARPA will have the foundation for replicating or
exceeding DARPA's success in catalyzing critical new
technologies by initiating and leveraging R&D among public,
private, or university innovators. Under an amendment offered
by Senator Stevens, ten percent of the Acceleration Fund is
to be allocated to Coast Guard homeland security R&D missions
for FY'04 and FY'05 through a joint agreement with the
Commandant of the Coast Guard.
While Congress should restrain itself in directing
particular management strategies, it is the Committee's
expectation that SARPA will take full advantage of evolving
modern management strategies in the R&D field, particularly
in assuring effective technology transition. For example, the
Committee would expect SARPA to engage in a careful "needs
identification" effort which involves eventual technology
"users" in its R&D roadmapping and planning exercises. The
Committee also expects that it operate not simply as a
traditional research organization but that it explore methods
to involve venture participants, incubate new technologies,
encourage the startup process, facilitate prototyping, and
promote strategic government and private sector supporters
and investors. SARPA will also need to actively encourage
connections with technology first-adopters in and out of
government, and establish interactive feedback systems for
technology development and deployment to ensure sustained
interaction between front-line researchers and with users.
To support the Directorate and its functions, an
interagency Science and Technology Council, which is the
successor to the Science and Technology Steering Council
contained in the original version of the legislation, will
advise the Under Secretary on priorities and strategies for
homeland security R&D. This Council will consist of senior
R&D officials from across the government and will serve to
facilitate interagency coordination on R&D activities
pertinent to homeland security. One of the chief
responsibilities of the Council will be to assist the Under
Secretary in developing overarching technology roadmap that
will enable a coherent national homeland security R&D program
to be coordinated among the many federal agencies.
The Administration's proposal contemplated the designation
of one of the DOE national laboratories to serve as the
primary research and development center for the Department.
However, in recognition of the extensive scope and nature of
homeland security R&D, as well as the different research and
technology-related capabilities possessed by each of the DOE
laboratories and sites, the GAC-endorsed legislation
establishes in the Directorate an Office for National
Laboratories to coordinate and utilize such entities in
creating a networked laboratory system to support the
missions of the Department. Through joint sponsorship
agreements with the DOE, the legislation allows the
Department to easily access and benefit from the combined
expertise of all of the DOE laboratories and sites.
The Department will have extraordinary analytical needs
cutting across of all of its Directorates, especially with
regard to the assessment, analysis, and management of
threats, vulnerabilities, and risks. Although the
Administration's bill did not specifically address this need,
the President's Strategic Plan released in mid-July suggests
that risk analysis is a fundamental issue that needs to be
addressed in planning for our nation's security. Although the
legislation vests ultimate responsibility for risk analysis
and risk management by the Department with the Secretary, all
the Directorates will be required to assist the Secretary in
coordination with each other and consistent with their own
missions. The Directorate of Science and Technology has a
contributing role to play in this framework by providing the
Secretary and the other Directorates with scientific and
technical support for such functions. To ensure that the
Directorate has access to the requisite resources and
expertise to fulfill its risk analysis responsibilities and
other research-related functions, the legislation gives the
Department the power to contract with or establish FFRDCs-
independent, non-profit institutions that conduct analysis
and provide support integral to the mission and operation of
the sponsoring agency. Thirty-six FFRDCs across the nation
have proven indispensable in enabling the government to
undertake research with a creativity and flexibility not
always available within the confines of a federal agency.
The importance of FFRDCs is underscored by a prominent
study on homeland security conducted by the National
Academy of Sciences, which recommended the establishment
of an FFRDC to furnish capabilities related to risk
analysis, scenario-based threat assessments, red teaming,
and other functions. Moreover, an Office of Risk Analysis
and Assessment is created within the Directorate to ensure
that these functions are given institutional priority and
carried out--whether internally or through outsourcing to
FFRDCs--in a coordinated manner in accordance with the
Secretary's requirements and overall management. This
Office will assume operational responsibility within the
Directorate and on behalf of the Under Secretary for
supporting the risk analysis and risk management needs of
the Secretary and the other Directorates, as well as help
ensure that R&D activities are aligned with risks and
threats.
The President's proposal included language that would grant
the Department control over funds appropriated to the
National Institute of Health (NIH) for bioterrorism research.
Although the provision clearly contemplated that these funds
would remain committed to the NIH for application in
accordance with the Department's guidelines, the Committee
was concerned that the provision technically allowed for such
funds to be transferred to other agencies, thereby depriving
the NIH of funding necessary to conduct its critical research
in this area. With the collaboration of staff from the
Administration and Senator Thompson's office, a final
provision was negotiated under which NIH funds would not be
transferred out of the HHS. Instead, through joint strategic
agreements, the Secretary of the Department would set general
research priorities for the funds, while the HHS would
establish the specific scientific research agenda as well as
award and manage all grants. This modified language will
protect our strategic commitment to biodefense research,
while leaving the means and methods for this research to the
scientists at the NIH.
The President's proposal targeted a number of R&D entities
and programs in other agencies for transfer into the
Department. While the Committee does not agree with all of
the Administration's transfers, it recognizes the value of
providing the Department with a critical base of in-house R&D
capabilities. Therefore, most of the programs targeted by the
Administration have been moved, including the chemical,
biological, and nuclear threat assessment and detection
programs within the Department of Energy (DOE) relevant to
homeland security, and the National Bio-Weapons Defense
Analysis Center to be created within the Department of
Defense. The transferred programs will be collectively
supervised by a new Office of Laboratory Research. Together,
these transferred entities will confer a basic in-house
research capability with the resident scientific expertise to
help the Directorate better coordinate the broader
government-wide homeland R&D portfolio.
Given that the Federal government represents only one of
several sectors in our nation with R&D resources and
expertise, the Department will require mechanisms to engage
and benefit from private sector and academic efforts
regarding homeland security. Toward this end, the legislation
allows for the establishment of an Advisory Panel consisting
of experts from the private sector,
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academia, State, and local entities to advise and support the
Under Secretary and the Science and Technology Council. The
Panel will ensure that a diversity of perspectives are taken
into consideration in the establishment of priorities, and
that the contributions to be made from the private sector are
properly addressed and incorporated into the national
homeland security effort.
The Directorate will also include an Office for Technology
Evaluation and Transition, which will serve as a
clearinghouse and national point-of-contact for companies and
other entities that possess technologies relevant to homeland
security. The Office will evaluate these technologies and, if
appropriate, assist in developing and transitioning them into
Department entities or other agencies possessing matching
needs. The Technical Support Working Group (TSWG) provides an
applicable model for this function, and the legislation
requires the Office to coordinate with or work through TSWG,
or use TSWG as a model, in performing this technology
solicitation and transition role. It is also intended that
this Office serve as the Department's internal center for
testing and evaluating new technologies being considered for
acquisition or deployment by the Department or its entities.
The new Department will be a large one, and very dependent on
technology in carrying out its homeland mission. As a result,
it is vital that new technologies deployed in the
Department's component Directorates and other entities be
compatible and interoperable to ensure efficiency and
expanded capability. The Office, by performing the
Department's testing and evaluation function, will support
the Under Secretary in carrying out his duties as the
Department's chief technology officer. In addition to
conducting testing and evaluation activities for the
Department, the Office will also coordinate with the
Department's Chief Information Officer and with other
agencies in promoting government-wide compatibility and
interoperability with regard to homeland security
technologies and systems.
Rapidly developing medicines and antidotes to counter
chemical and biological weapons is an enormous challenge and
one that government-supported R&D cannot accomplish on its
own. The legislation directs the Secretary to implement a
strategy to engage the biotechnology and pharmaceutical
industries in the critical research and product development
that will produce antidotes and vaccines to the chemical and
biological weapons that terrorists may employ against our
nation. This strategy should explore and suggest ways to
provide incentives and facilitate "bench-to-bedside"
transition for these products.
Recognizing that technological prowess in this country is
in communities, as well as colleges and companies, the
Department must tap the boundless expertise and energy of
ordinary citizens. Drawing on legislation developed in the
Senate Commerce Committee, the legislation endorsed by the
Committee creates a National Emergency Technology Guard of
volunteers with expertise in science and technology to assist
local communities in responding to and recovering from
emergencies requiring scientific or technical expertise.
As reported on May 22, S. 2452 included a Directorate of
Emergency Preparedness and Response, with FEMA as its core.
The new GAC-endorsed legislation retains this directorate and
expands it to include some of the programs the Administration
proposed moving to the new department. This amendment also
provides that the President may appoint the same person to
serve as both the Director of FEMA and the Under Secretary
for this directorate.
This directorate's responsibilities include organizing and
training local entities to respond to emergencies and
providing State and local authorities with equipment for
detection, protection, and decontamination in an emergency
involving weapons of mass destruction; overseeing
Federal, State, and local emergency preparedness training
and exercise programs; assembling a single Federal
disaster plan to help orchestrate Federal assistance for
any emergency; coordinating among private sector entities,
including the health community, in emergency planning and
response activities; and developing a comprehensive plan
to address the interface of medical informatics and the
medical response to terrorism. (Medical informatics is the
scientific field that addresses the storage, retrieval,
sharing, and optimal use of biomedical information, data,
and knowledge for problem-solving and decision-making.)
This directorate also creates a National Crisis Action
Center to coordinate federal support for State and local
governments and the private sector during a crisis;
additionally, the directorate is responsible for ensuring
the appropriate integration of operational activities of
the Department of Defense, the National Guard, and other
federal agencies in the Federal Response Plan in order to
respond to acts of terrorism and other disasters.
In addition to FEMA, the Emergency Preparedness and
Response directorate transfers the National Office of
Domestic Preparedness, within the FBI. This entity was
created by the Attorney General in 1998 and coordinates
federal efforts to assist state and local emergency
responders with training and materials necessary to respond
to an event involving weapons of mass destruction. The Office
of Domestic Preparedness (ODP) within the Department of
Justice is also transferred. ODP was developed to help train
State and local law enforcement agencies to respond to
terrorist incidents.
The Administration proposed transferring the Select Agent
Registration Enforcement Program from the Centers for Disease
Control within the Department of Health and Human Services,
to the Department. The Select Agent Registration Enforcement
Program was developed to identify all biological agents and
toxins that may threaten public health and safety, regulate
the transfer of such agents and toxins, and establish a
registration scheme regulating their possession, use, and
transfer. The GAC-endorsed legislation transfers this program
to the Emergency Preparedness and Response directorate
because it is a program critical to preparing for and
responding to a public health emergency. The Under Secretary
for Science and Technology, the Secretary of Agriculture, and
the Director of the Centers for Disease Control and
Prevention will work together to establish and update the
list of toxins to be monitored.
Like the Administration's proposal, the GAC-endorsed
legislation transfers the Strategic National Stockpile to the
new department. The Strategic National Stockpile is a
stockpile of drugs and vaccines that may be used in the event
of a terrorist attack or other emergencies. However, because
of CDC's experience and expertise, the legislation allows for
the Stockpile to be managed on a day-to-day basis for the
Department by CDC through a new Bioterrorism Preparedness and
Response Division, which is created in this legislation
pursuant to an amendment from Senator Cleland. However, the
Department would remain in charge of the overall strategic
planning concerning the Stockpile. The Public Health
Emergency and Bioterrorism Preparedness and Response Act of
2002 authorized funds for both the Stockpile and the
acquisition of smallpox vaccine doses and potassium iodide.
Consequently, the GAC-endorsed legislation transfers
responsibility for the acquisition of smallpox doses and
potassium iodide to this directorate as well.
Finally, the Administration also proposed transferring the
Office of the Assistant Secretary for Public Health
Preparedness (OPHP) from the Department of Health and Human
Services to the Emergency Preparedness and Response
directorate. This office has three primary components: (1)
the awarding and administration of state and local grants for
public health preparedness; (2) the Principal Science
Advisor, who advises the Secretary on the global R&D strategy
for HHS; and, (3) the Office of Emergency Preparedness, which
manages rapid-response emergency health and first-responder
personnel. From this Office of the Assistant Secretary for
Public Health Preparedness, the GAC-endorsed legislation
transfers the Office of Emergency Preparedness.
The other two components of the OPHP each play a role in
emergency response, but also a very extensive role in general
public health. Because they perform a dual-use function, and
because of their extensive interaction with other parts of
HHS, it does not seem appropriate to transfer them to the new
department. Additionally, experts in the public health and
biomedical communities expressed concern that the
Administration's proposal would not operate effectively. The
OPHP was established to address the problems of intra-agency
communication and coordination, and it could reverse the
gains achieved by this office to remove it from the
department with which it is primarily engaged. Indeed, HHS
would be probably be forced to re-create this capacity
internally if OPHP were transferred to the Department.
At the same time, it is important the Department have in-
house capability to address biological, chemical, and nuclear
weapons. Consequently, the Department would include those
public health and biomedical programs--the OEP, the Select
Agent Registration Enforcement Programs, and the Strategic
National Stockpile--which focus primarily on terrorism and
emergency response.
Secret Service
The legislation adopts the Administration's proposal to
include the United States Secret Service as a distinct entity
reporting directly to the Secretary. The Service has a dual
mission of protection and investigation, with a central focus
on preventing attacks and other missions now very relevant to
terrorist threats. The Service was originally created to
safeguard the country's currency and financial payment
systems, and it remains the sole agency charged with
enforcing the counterfeiting statutes. Its responsibility for
protecting the country's financial infrastructure has led to
an expansion of the Service's investigative mission, which
now includes crimes involving identity theft, credit card
fraud, false identification documents, computer fraud, and
financial institution fraud. In addition, the Secret Service
is well-known for its mission to protect the nation's highest
elected leaders and their families, as well as visiting heads
of state. In recent years, the Secret Service has assumed
responsibility for planning, coordinating, and implementing
security operations at National Special Security Events, as
designated by the President. It also has created the National
Threat Assessment Center, which provides advice and training
to law enforcement and other organizations with
responsibilities to investigate or prevent targeted violence.
The missions of the Secret Service have a clear connection
to the fundamental mission of the new Department. Its
protective mission is central to safeguarding the country's
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leadership. Many of the crimes it is charged with
investigating involve activities in which terrorists often
engage. And it is an agency that is uniquely focused on
assessing vulnerabilities and designing ways to reduce them
in advance of an attack, an expertise that will benefit the
new Department. The responsibilities and experience of the
Secret Service support its transfer as a separate office
reporting directly to the Secretary rather than its inclusion
in one of the Directorates. This structure will allow the
Service to draw on the expertise and resources of the
Directorates to support its protective mission, as well as to
provide its own expertise and experience to the rest of
the Department.
State and Local Government Coordination
Homeland security is clearly a joint responsibility among
the Federal, State, and local governments. There are many
ways in which the bill recognizes the importance of these
relationships and places a high priority on ensuring that the
Department works closely with, and provides significant
assistance to, State and local agencies. To coordinate this
effort, the Department will have an office devoted to
facilitating effective communications and partnerships with
State and local government. The Office for State and Local
Government Coordination will be established within the office
of the Secretary to ensure that the needs and role of State
and local governments are considered throughout the work of
each of the Department's directorates. In addition to
coordinating the activities of the Department relating to
State and local governments, the Office will be responsible
for assessing and advocating for the resources needed by
State and local government to implement the national strategy
for combating terrorism. This advocacy function is necessary
so that budget decisions to implement the national strategy
are made with the full understanding of the role that State
and local governments will play in implementing the strategy,
as well as the resources necessary at all levels of
government for success.
The Secretary, in conjunction with the Director of the
National Office for Combating Terrorism, is responsible for
working with State and local governments to develop a
national strategy for combating terrorism--not simply a
Federal strategy. Thus, the Office for State and Local
Government Coordination will develop a process for receiving
meaningful input from State and local government to assist in
the development of the strategy for homeland security and
other homeland activities. The Office will also provide State
and local government with regular information, research, and
technical support to assist local efforts at securing the
homeland.
The GAC-endorsed legislation incorporates an amendment,
offered by Senators Collins and Carper, which creates the
position of Chief Homeland Security Liaison Officer, who is
charged with coordinating the efforts of homeland security
liaison officers in each state. These liaison officers will
work with State and local first responders to make sure that
these organizations receive the training and resources they
need. A Federal Interagency Committee on First Responders
will bring together the federal agencies that work most
closely with State and local first responders and will be
counseled by an Advisory Council, including representatives
of first responders and urban and rural communities.
To further encourage communication and coordination between
the Department and State and local agencies, the GAC-endorsed
legislation authorizes the Secretary to establish an employee
exchange program. This program--which was suggested by
Senator Voinovich--would allow employees of the Department
and State and local agencies with homeland security
responsibilities to work together, to share their specialized
expertise, and to enhance their ability to assess threats
against the country, develop appropriate responses, and
inform the public. Employees who participate in the program
must have appropriate training or experience to perform the
work required by the assignment, and assignments must be
structured to appropriately safeguard classified and other
sensitive information.
Office of International Affairs
The legislation includes an amendment offered by Senator
Thompson that creates an Office of International Affairs
within the office of the Secretary. The Director of the
Office will be responsible for promoting the exchange of
information with foreign nations to encourage sharing of best
practices and technologies relating to homeland security.
This information exchange will include joint research and
development on countermeasures, joint training exercises for
first responders, exchange programs, and international
conferences. The Director will manage the activities under
this provision in consultation with the Department of State
and other relevant Federal officials. These programs will be
developed first with countries that are already highly
focused on homeland security issues and that have previously
engaged in fruitful cooperation with the United States in the
area of counterterrorism.
MANAGEMENT AND TRANSITION ISSUES
Management structure
The Administration's proposed legislation calls for the
appointment of a number of management officials to support
the Secretary in carrying out the mission of the Department.
The Committee-endorsed legislation includes much, though not
all, of the management structure proposed by the
Administration.
Secretary--First and foremost, the Committee-endorsed
legislation calls for a strong Secretary, vested with
effective, centralized management authority over what will be
a large new organization. Although responsibilities under
this legislation are allocated among the various
Directorates, it is intended that all powers provided under
this bill be subject to the full control and direction of the
Secretary. Also, while the bill establishes the basic
organizational framework for the new Department and
establishes its principal components, carrying out this
organizational task is only part of the role that the new
Secretary must play. While a number of more subjective
management factors cannot be defined in statutory language,
we anticipate that the new Secretary will need to spend a
great deal of time on key management tasks that cannot be
embodied in a formal organizational structure. These tasks
include: creating a sense of shared values across the new
Department and its disparate components; ensuring that core
skills and competencies are both developed and shared across
the Department; developing an effective common departmental
strategy for achieving the agency's missions with buy-in
among component agencies; deciding on the key systems and
management processes apart from the organizational structure
that will manage and bind together the new Department;
assuring that the success of those systems and processes are
measured and evaluated frequently to test their performance;
ensuring that departmental personnel gain experience in a
variety of agency components to encourage cross-agency
thinking, capability, and solutions so that the synergy of a
new Department can be realized, and establishing a leadership
style that will create a strong organizational culture based
on the values and attitudes the new Department must have to
effectively perform its mission. The bill aims to create a
structure that will enable the new Secretary to carry out
these critical management efforts.
The Department will be headed by a Presidentially
appointed, Senate-confirmed Secretary. The Secretary's duties
include developing policies and plans for the promotion of
homeland security, carrying out and promoting the other
established missions of entities transferred to the
Department, and developing a comprehensive strategy for
combating terrorism and the homeland security response in
conjunction with the Director of the National Office for
Combating Terrorism.
The Secretary is charged with consulting with the Secretary
of Defense and the nation's governors to integrate the
National Guard into the nation's strategy to combat
terrorism. The Secretary must also consult and coordinate
with the Secretary of Defense regarding military
organization, equipment, and assets that are critical to
fighting terrorism, as well as the training of personnel to
respond to terrorist attacks involving chemical or biological
agents.
Section 102 details numerous other duties of the Secretary.
Deputy Secretary--Section 103 provides for appointment of a
Deputy Secretary, subject to Senate confirmation, responsible
for assisting the Secretary.
Under Secretary for Management--The Administration proposal
calls for the appointment of an Under Secretary for
Management with broad responsibilities for management and
administration of the Department. Section 104 of the
Committee-endorsed bill establishes this position with
substantially the same responsibilities as in the
Administration bill. These include budget and other financial
matters, procurement, human resources and personnel,
information technology and communications, facilities and
other material resources, security for the Department, and
managing performance measures for the Department.
Assistant Secretaries--The Administration requested
authority for the President to appoint not more than six
Senate-confirmed Assistant Secretaries, without specifying in
statute what the responsibilities of these officers would be.
Following generally the Administration's approach, section
105 of the legislation authorizes the President to appoint up
to five such Assistant Secretaries (these do not include the
two additional, Senate-confirmed Assistant Secretary
positions, with immigration-related functions, established in
division B of the legislation.) The President must describe
the general responsibilities when submitting a nominee for
confirmation. The authority of the President to assign
functions to up to five Assistant Secretaries should provide
important flexibility in designing the management structure
for the Department.
Inspector General--The Department will include an office of
Inspector General under the Inspector General Act of 1978,
thereby applying the authorities and independence provided
under that Act. The legislation would define a narrow set of
circumstances under which the Secretary could prohibit the
Inspector General from carrying out an investigation or
performing other duties if necessary in the interest of
national security or other compelling circumstances specified
in the legislation. This language is modeled closely on
provisions that apply to the Inspectors General at the
Departments of Justice, Defense, and Treasury, the United
States Postal Service, and the Central Intelligence Agency.
Also modeled closely on provisions applicable at Treasury, is
a provision
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granting the Homeland Security IG oversight over internal
investigations performed by any other investigatory offices
where they exist in the Department's sub-agencies. The
Inspector General must designate an official to collect and
review information about alleged abuses of civil rights and
civil liberties by Department officers and employees, and
report to Congress on such abuses.
Chief Financial Officer--The legislation would establish a
Chief Financial Officer (CFO) and a Chief Information Officer
(CIO) at the new Department. Section 107 would define the
Department as an agency under the CFO Act, thereby making
applicable the requirements of the CFO Act of 1994,
regarding, for example, the qualifications and
responsibilities of the CFO and annual financial reporting.
Under the CFO Act, the CFO at the Department must be either
appointed by the President subject to Senate confirmation, or
designated by the President, in consultation with the
Secretary, from among Senate-confirmed officials at the
Department.
Chief Information Officer--Section 108 of the legislation
would establish a Chief Information Officer (CIO) at the new
Department. Furthermore, the provisions of law defining the
responsibilities of the CIO, including the Paperwork
Reduction Act and Clinger-Cohen, would apply by their own
terms to the new Department. Under applicable law, the CIO
need not be Senate-confirmed.
Chief Human Capital Officer--The Secretary must appoint or
designate a Chief Human Capital Officer to advise and assist
the Department in workforce skills, training, recruitment,
retention, and other issues necessary to attract and retain a
highly qualified workforce.
Civil Rights Office--Section 110 of the bill establishes a
Civil Rights Office, whose head will be appointed by the
President and confirmed by the Senate. The Office will have
two important functions. First, the Civil Rights Office will
have responsibility for coordinating the administration of
and ensuring compliance with laws prohibiting discrimination
against Department employees and beneficiaries of Department
programs (see, e.g., 42 U.S.C. Sec. Sec. 2000d, 2000e-16).
Second, it will advise the Secretary, as well as the
Department's directorates and offices, on the constitutional
and statutory framework that governs the Department's
interactions with the citizenry at large and help develop and
implement policies that ensure that consideration of this
group's civil rights are appropriately incorporated and
implemented in Department programs and activities. It also
will oversee the Department's compliance with requirements
related to the civil rights of individuals affected by the
Department's programs and activities. Authority to
investigate specific complaints by the citizenry at large of
civil rights or civil liberties violations, however, will
reside in the Office of the Inspector General, to which the
Civil Rights Office will refer any matter that, in the
opinion of the Civil Rights Officer, warrants further
investigation.
Privacy Officer--A Chief Privacy Officer will oversee the
Department's compliance with privacy laws and help ensure
that personal information is appropriately safeguarded.
Several federal agencies that deal with sensitive personal
information, such as the Internal Revenue Service and the
U.S. Postal Service, currently have similar privacy advocates
to aid in the development of policies and provide assistance
to agency officials. The Chief Privacy Officer's mandate
extends beyond overseeing compliance with existing privacy
laws, such as the Privacy Act, and includes assisting in the
development of policies that incorporate privacy safeguards
and minimize the risk of inappropriate disclosure or use of
personal information. The Privacy Officer may also assist in
the development of privacy impact assessments, when required
by law or considered appropriate by the Secretary, which are
documents that explain how an agency takes into account
privacy considerations when initiating information
collections and developing information systems.
The Constitution clearly assigns to Congress what is called
the "power of the purse"--the power to appropriate funds
and to prescribe the conditions governing the use of those
funds. The Framers thus made Congress responsible to the
people for how the people's money gets spent. The legislation
contains provisions reaffirming that appropriated funds may
be used only for the purposes stated by Congress. To provide
for initial funding of the Department, the legislation
requires the Administration to submit a transition plan and
proposed budget by September 15, 2002, so that Congress can
appropriate timely start-up funds based on that proposal.
By contrast, the Administration has requested that the new
Department be excepted from the traditional arrangements
regarding the use of appropriated funds. For initial funding
for the Department, the Administration proposed to take funds
(up to 5%) from each agency slated for transfer to the
Department and use these funds for any purpose under the
legislation. This could total roughly $2 billion. To adjust
funding priorities without having to go back to Congress, the
Administration requested permanent power to take funds (up to
5%) from each appropriations account in the Department and
use those funds for any other purpose in the Department.
Senator Byrd and Senator Stevens, the Chairman and Ranking
Member of the Appropriations Committee, respectively, wrote
to me expressing their strong legal objection to the
appropriation transfer provisions requested by the
Administration:
"The proposal by the President provides the new Secretary
with extraordinary powers, powers that could potentially tip
the delicate balance of constitutional powers between the
Legislative and Executive branches of government. These are
powers that the Secretary of Defense and the Secretary of
State do not currently have, nor should they have. The
Framers carefully crafted that balance, and it has served the
nation well for more than 200 years."
Senators Byrd and Stevens also requested that the
legislation include provisions to sustain existing law and
practice governing the use of appropriated funds, and
language that they agreed to is included in the legislation.
These provisions are designed to provide for establishment of
the Department, while preserving the customary and
Constitutional role of Congress in appropriating funds and in
ensuring that such funds are used effectively and efficiently
and according to the will of the people, as expressed through
their elected Senators and Representatives.
Under the legislation, initial funding for the Department
will be provided through appropriations Acts, not through
transfer of funds appropriated for other purposes. To provide
this initial funding in a timely fashion, the legislation
requires the President to submit a transition plan by
September 15, 2002, including a proposal for financing the
initial operations of the Department. The financing proposal
might consist of any combination of specific appropriations
transfers, specific reprogrammings, or specific new
appropriations. By putting the Administration on notice, even
before the legislation is enacted, this provision has given
the Administration ample time to submit their plan while
Congress still has time to act on the Administration's
proposal.
To further clarify that initial funding will be provided by
appropriations acts, the legislation states that transferred
funds may only be used for their original purposes unless
Congress approves in advance a reallocation of such funds.
This provision does not limit the ability of an agency
transferred to the Department to use transferred funds for a
new position previously authorized in law, but does reinforce
that transferred funds may not be used to fund a new position
established under this legislation itself.
Looking beyond the transition period, the Administration
sought to justify its request for power to transfer
appropriations by stating, in the analysis accompanying the
Administration's proposed legislation: "Appropriations
transfer provisions are enacted annually in a number of
appropriations acts." While declining now to grant the
broad, permanent transfer power requested by the
Administration, this Committee-endorsed legislation does not
address whether any power to transfer funds should
subsequently be included in annual appropriations acts for
the Department. In fact, annual appropriations bills often
build in such flexibility, but more often in smaller amounts
under close oversight by Congress. The proper way for the
Administration to seek this authority is to request it as
part of their annual appropriations, not as permanent
authority in the enabling legislation.
The Committee concluded that the Congress and the Executive
Branch must fully understand the annual and multi-year
funding requirements for the Department to ascertain the most
appropriate funding levels to protect the American people
from homeland security threats.
Accordingly, the GAC-endorsed legislation requires the new
Department, beginning with the fiscal year 2005 budget
request, to submit annually a Future Years Homeland Security
Program to accompany the annual departmental budget request
and the National Terrorism Prevention and Response Program
Budget mandated elsewhere in the Committee-approved
legislation. The language requires that Future Years Homeland
Security Program be structured, and include the same type of
information and level of detail, as the Future Years Defense
Program required by statute to be submitted to the Congress
by the Department of Defense.
S. 2452, as reported on May 22, set an effective date of
180 days after enactment for the transfer of personnel and
assets to the new Department, and included "savings
provisions" to generally preserve the status quo with
respect to the ongoing missions of the agencies being
transferred. The Administration's subsequent proposed
legislation requested greater flexibility with respect to the
timing of the transition by giving the President discretion
to move agencies at any time over a one-year transition
period. It also requested further flexibilities to enable the
Administration to make certain incidental transfers and to
allocate transferred assets and personnel.
The GAC-approved legislation now includes, in subtitle B of
title XI, transition provisions based on the corresponding
provisions of the Administration's proposed legislation.
These provisions include most of the transition-related
flexibilities requested by the Administration. The principal
exceptions are that, under the GAC-endorsed legislation, the
Administration would not have the flexibility to use funds,
appropriated by Congress for one purpose, fo
