Congressional Record: September 30, 2004 (Senate)
Page S10000-S10050
NATIONAL INTELLIGENCE REFORM ACT
Ms. COLLINS. Madam President, we are now going to resume
consideration of S. 2845. Senator Lieberman and I, along with the two
leaders, encourage Members to come forward with their amendments. The
leaders are determined that we will finish this bill very early next
week. In order to do so, we need the cooperation of all Senators who
have filed amendments, and we encourage them to bring them forward.
The PRESIDING OFFICER. The Senator from Florida.
Amendment No. 3797
Mr. GRAHAM of Florida. Madam President, I rise today to speak on what
I consider to be one of the most important areas of intelligence
reform, and then I will offer an amendment to help advance that
position.
Over the last several weeks, I have been making a series of
statements on various aspects of intelligence reform. In my recent
statements, I have discussed the history of the U.S. intelligence
community, the community's failure to adapt to changing conditions
since the end of the Cold War, the unfortunate reluctance of both the
Congress and the administration to tackle these much needed and long-
reported necessary reforms, the shape that I believe our reform should
take, and the danger that excessive Government secrecy poses to our
national security.
I have also expressed my gratitude to the independent 9/11 Commission
and its predecessors for the work they have done in analyzing the
strengths and weaknesses of the American intelligence community and
offering recommendations as to how these weaknesses can be remedied.
Today, I also thank several of my colleagues for the work they have
done in providing the groundwork for this legislation and moving it
substantially toward fruition. Senators Collins and Lieberman have put
a substantial amount of work into crafting meaningful bipartisan
intelligence reform legislation that seeks to correct current failings.
They and their staffs should be commended for that effort.
In addition, Senators McCain and Roberts have stepped forward with
very thoughtful proposals for reform, and as we work to fine-tune the
Collins-Lieberman bill, their proposals will be an excellent source of
ideas and alternatives.
We all owe our gratitude to the other members of the Governmental
Affairs and Intelligence Committees, especially Vice Chairman
Rockefeller on the Intelligence Committee, and their respective staff
members for all the contributions they have made to the debate over the
direction of intelligence reform.
I spoke last week about the direction in which I thought we should
move with these reforms and the shape these reforms should take. I
would now like to discuss in more detail how we might accomplish that
within this legislation.
I will offer an amendment which I hope will be a contribution to
achieving these goals. First some background.
Our national intelligence community currently resembles our military
as it looked prior to 1947. It is made up of a number of agencies that
originated at different times and with different structures, with
shared common goals, but frequently found they had difficulty working
with one another because of their different histories, different
cultures, different bureaucratic structures, and different priorities.
That would have also been a definition for the American military pre-
1947.
In that year, at the urging of President Harry Truman, Congress
passed the National Security Act, which brought together all of the
components of the military. There had been a Secretary of the Navy,
there had been a Secretary of War, sometimes referred to as the
Secretary of the Army, and there certainly would have been a Secretary
of the Air Force had the National Security Act not intervened. This new
legislation created for the first time a civilian leader at the top and
uniformed service chiefs reporting to that leader.
This was an important reform, but it did not end all the rivalries
and competition for actions and spending resources within the military.
There were a series of events that occurred in the late 1970s and early
1980s which dramatized these continuing weaknesses. We were unable to
rescue hostages who had been taken in Tehran. We were unable to avoid
the massacre of over 200 American marines in barracks in Beirut by
Hezbollah, and there were a series of missteps on the small island of
Grenada. Reviewing all of these issues, in 1986, it was becoming
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apparent that though all the services reported to a single departmental
head, they still had many problems communicating with one another and
working effectively together.
As it had in 1947, Congress again stepped forward with the Goldwater-
Nichols Act, which decentralized the military establishment. Control
over military operations moved from the Pentagon to several joint
commands, each responsible for a different geographic area of the
world. As a result, the U.S. military has become more effective than
ever before.
Given that our international intelligence community is currently in a
pre-1947 state, our challenge now is to enact both the equivalence of
the National Security Act of 1947 and the Goldwater-Nichols Act of 1986
at the same time. In other words, we must centralize authority and then
immediately commence the process of decentralizing the bureaucracy.
We waited 39 years between the National Security Act and Goldwater-
Nichols. We cannot afford to wait 39 years between the action we will
hopefully take this year and the time we will begin to decentralize the
intelligence bureaucracies. It is essential that this legislation
create a strong director of national intelligence and also lay out the
best possible structure for intelligence collection and analysis.
In my view and in the view of many others, our intelligence community
would be most effective if it were organized around the mission-based
model that brings personnel from different agencies and specialties
together to focus on whatever intelligence missions the national
director deems to be most important.
In a recent publication called ``Intelligence Matters,'' I state:
This may seem counterintuitive, but for us to deal with
this decentralization, we must first centralize. Since their
inception, the agencies that make up our foreign intelligence
community have focused on assignments like the collection of
signals or visual images. While each agency focuses on its
own responsibilities, the larger realities--like the changed
nature of the enemy--go unattended. They are nobody's
business.
The structure we have before us today gives us an opportunity to
place those large issues of adaptation to new threats in an appropriate
structure.
The director will be responsible for giving the centers their
missions and assigning them the personnel and resources they need to do
their job.
He or she can then be held accountable for the centers' performance
and accomplishments.
This model was previously suggested by the 9/11 Commission.
In the conclusion of its report, it discusses the structural problems
that currently plague our intelligence community, and suggest that
significant changes must be made in order to achieve unity of effort
among the community's various agencies.
The Commission report recommends that a national center for
counterterrorism be established, and I am pleased that President Bush
has endorsed the creation of such a center, and it is contained in the
legislation before us today.
This center will bring together personnel from a variety of
disciplines and specialties from across the intelligence community to
focus on the problem of international terrorism.
By bringing them all together and placing them on the same staff, we
can overcome the bureaucratic and sociological barriers that have
sometimes prevented them from being effective.
This will also help us use our intelligence resources more
efficiently by ensuring that different agencies are not doing redundant
work on the same threat.
In addition to a national counterterrorism center, the Commission
also recommends that other centers be created to focus on different
global challenges, such as nuclear proliferation, international drug
trafficking, or particular rogue states such as North Korea, and Iran.
These centers would be able to bring together personnel in the same
manner as the Counterterrorism Center, allowing us to be more efficient
and effective in intelligence gathering and analysis.
The Commission recommended that management of these centers should be
one of the director's primary responsibilities. Their recommendation
states:
The current position of Director of Central Intelligence
should be replaced by a National Intelligence Director with
two main areas of responsibility: (1) to oversee national
intelligence centers on specific subjects of interests across
the U.S. government and (2) to manage the national
intelligence program and oversee the agencies that contribute
to it.
The national director must be given the flexibility to create,
reorganize or even disband these centers as needed, just as the
Secretary of Defense has the authority to shift the responsibility of
the unified commands.
For instance, Syria and Lebanon were once included in the European
Command, but as the international situation changed, it became more
appropriate to move them to Central Command, which already included
their Middle Eastern neighbors.
A second instance is the Caribbean region, which was previously
included in the Atlantic Command and has since been moved to the
Southern Command, which includes the rest of Latin America.
Congress had empowered the Secretary of Defense to make these
decisions while maintaining its constitutional responsibility for
oversight and appropriations.
This wise allocation of authority has enabled the Department of
Defense to do what the intelligence community has been unable to do;
that is to respond to changing conditions in a swift and decisive
manner.
The authors of Goldwater-Nichols gave the Secretary of Defense the
necessary level of flexibility and adaptability by not writing into law
which commands should be created and what countries they should
include.
Instead, we empowered the Secretary to establish or alter the unified
commands as circumstances dictate.
The current version of the Collions-Lieberman bill includes language
to establish national intelligence centers, in accordance with the 9/11
Commission's recommendations.
This is obviously a significant step in the right direction.
However, I believe that is necessary to make some modifications to
the language in order to clarify the purpose of the centers and to
ensure that the national intelligence director has the authority needed
to manage them effectively.
Some of the provisions that we need to be aware of and include in the
final version of this legislation as it relates to national
intelligence centers are these:
First, we should include language making clear that the mission of
the national intelligence centers is to focus on specific threats.
In keeping with the Commission's recommendation, this would mean that
some centers might focus on specific countries or regions, while others
would focus on global problems such as nuclear proliferation.
Second, we must make the national intelligence centers the focal
point of intelligence gathering and analysis for their particular area
of focus.
The centers should develop a strategy for the collection and analysis
of intelligence regarding their area of focus and draw upon the
resources of the various intelligence agencies to implement this
strategy.
To give an example of how this might work, imagine that the national
director believes that we need a focus on counterproliferation of
nuclear weapons, and surely we do.
In a very important recent book, ``Nuclear Terrorism,'' by Graham
Allison, it is pointed out that there are two important truths as it
relates to nuclear terrorism. The first is that it is inevitable that
nuclear weapons will come into the hands of terrorists who will use
them against us. The second truth is that inevitability is preventable.
Professor Allison points out a number of steps that must be taken in
order to avoid the inevitable. Many of those relate to the intelligence
community's role. Professor Allison makes a number of suggestions as to
what reforms are required in order to avoid a nuclear weapon in the
hands of a terrorist who is destined to use it against the people of
the United States.
Just to summarize his points:
First, American intelligence must move beyond its Cold War mindset.
This legislation will help us achieve that goal.
Second, the United States must cultivate long-term strategic
relationships with foreign intelligence agencies. I believe having a
strong director
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of national intelligence will contribute to that objective.
Third, the American intelligence community must enhance its data-
mining efforts to process, analyze, and disseminate open sources of
intelligence. This legislation provides a heightened awareness of the
value and the credibility of open source information, that is
information that is available, other than through clandestine means.
Finally and above all, intelligence assessments must be credible.
I believe this provision for the establishment of national
intelligence centers will make a dramatic contribution toward enhancing
the credibility of U.S. intelligence.
The fact that we are creating within this legislation one national
intelligence center, that for counterterrorism, and leaving the
creation of the other centers up to the discretion of the national
intelligence director is essentially an accident of history. The 9/11
attacks were the use of conventional weapons--fire and gasoline--in a
nonconventional manner--large airplanes flying into large buildings.
If the attacks of 9/11 had taken another form, such as a cargo
container which was loaded at a distant point and arrived in the Port
of New York and was unloaded, and a week later found itself in downtown
Chicago, and because that container, in addition to its commercial
cargo, also carried a dirty nuclear bomb, and that bomb, were it to be
detonated, we would have had an event multiple times of what, in fact,
happened on 9/11. And I can assure you that the center would have been
written into this legislation and would have been the center on the
avoidance of the proliferation of nuclear weapons.
We are about to give that authority to the director of intelligence.
I believe we should give it to him with as close as possible the same
authority and the same capability as we are statutorily giving to the
center on terrorism. That is what this amendment attempts to do.
Finally, we must ensure that our national intelligence community is
constantly adapting in response to changes in the world around us.
Unfortunately, our intelligence community, since its inception in that
same National Security Act of 1947, has had difficulty adapting to
changed circumstances. It had that difficulty in the 1950s. It has had
that difficulty since the last of the Soviet Union in the late 1980s
through the early 1990s. Our intelligence agencies were slow in
shifting their focus from the Soviet Union to the more diffuse threat
such as terrorism, weapons proliferation, and rogue states.
As former CIA Director James Woolsey put it:
It was as if we had been struggling with a dragon for 45
years and finally defeated it . . . and then found ourselves
in the jungle with a lot of poisonous snakes. The snakes were
harder to keep track of than the dragon.
The national director should be required to frequently review the
mission and areas of responsibility of the intelligence centers, so
that we do not waste time staring at the dragon which we have already
slain.
He must also have the ability to create new centers rapidly, so that
they are not slow to react to the appearance of snakes.
The amendment I am offering would modify the very instructive
policies in the Collins-Lieberman bill to lay the groundwork for
reforms recommended by the 9/11 Commission, and ensure that the
national director has sufficient authority to carry them out.
Madam President and colleagues, I draw your attention to the fact
that I have discussed this amendment with Governor Kean and with former
Congressman Lee Hamilton, the distinguished Chair of the 9/11
Commission. And I am pleased they have responded enthusiastically.
I have received a letter from Governor Kean and Congressman Hamilton
which includes this statement:
The importance of integrated, all-source analysis cannot be
overstated. Without it, it is not possible to ``connect the
dots.'' No one competent today holds all of the relevant
information. Our view is it is imperative to have unity of
effort across the intelligence community.
Therefore, we strongly endorse the creation of national
intelligence centers on specific subjects of interest across
the U.S. Government. Clearly, with regard to the high
priority of counterterrorism, the centers should be the
intelligence entity inside the national counterterrorism
center . . . we have proposed. Other national intelligence
centers--for instance, on counter-proliferation, crime and
narcotics, the Middle East, Russia and China--could be
created based on the President and National Security
Council's determination of need.
The letter concludes:
A true sharing of all relevant information among analysts,
and the creation of national intelligence centers offering
the best advice and analysis to the President--together with
the continued independence of State, Treasury, Energy and
Defense Department analytical units--provides a better way to
foster competitive analysis than does the status quo.
To keep the country secure, we believe the government must
build the intelligence capabilities it will need for the
broad range of national security challenges in the decades
ahead.
We have the opportunity to take a step which will fundamentally
enhance the security of the people of America not only against the
threat that we know today, not only against the dragons with which we
are currently grappling, but with those poisonous snakes that may not
be so obvious, the poisonous snakes which may be hiding just beyond the
horizon.
The national intelligence centers will be a key to our ability to do
for intelligence what Goldwater-Nichols did in 1986 for our military.
I urge my colleagues to seriously consider and to adopt these
amendments to the excellent legislation which is before us today.
I ask unanimous consent that the letter from Governor Kean and
Congressman Hamilton be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
September 27, 2004.
Hon. Bob Graham.
Dear Senator Graham: Thank you for your question about the
9/11 Commission's proposal to establish national intelligence
centers. The Commission made 41 recommendations that we
believe will significantly improve the security and safety of
all Americans. All of the recommendations are, in our
estimation, important.
We see a particular need for creating national intelligence
centers. We have reviewed your suggest amendment on the topic
of national intelligence centers. The language seems
constructive, and consistent with our proposed approach. As
far as how to proceed, we leave the tactics of floor
consideration to you and the bill managers.
In our investigation of the 9/11 attacks, we learned that
the national security institutions of the U.S. government are
still the institutions constructed to fight the Cold War.
National intelligence is still organized around the
collection disciplines of the home agencies, not the joint
mission.
The importance of integrated, all-source analysis cannot be
overstated. Without it, it is not possible to ``connect the
dots.'' No one component today holds all the relevant
information. Our view is that it is imperative to have unity
of effort across the intelligence community.
Therefore, we strongly endorse the creation of national
intelligence centers on specific subjects of interest across
the U.S. government. Clearly, with regard to the high
priority of counterterrorism, the center--should be the
intelligence entity (formerly the Terrorist Threat
Integration Center) inside the National Counterterrorism
Center we have proposed. Other national intelligence
centers--for instance, on counterproliferation, crime and
narcotics, the Middle East, Russia, and China--could be
created based on the President and National Security
Council's determination of need. These centers will draw from
the talent of the individual agencies and become truly
national intelligence centers on their respective issues.
The National Intelligence Director that we have proposed
would oversee the national intelligence centers to provide
all-source analysis and plan intelligence operations for the
whole government on major problems. Under our proposals, the
National Intelligence Director would retain the present
Director of Central Intelligence's role as the principal
intelligence adviser to the president. We hope the president
will come to look directly to the directors of the national
intelligence centers to provide all-source analysis in their
areas of responsibility.
A true sharing of all relevant information among analysts,
and the creation of national intelligence centers offering
their best advice and analysis to the president--together
with the continued independence of State, Treasury, Energy
and Defense Department analytical units--provides a better
way to foster competitive analysis than does the status quo.
To keep the country secure, we believe the government must
build the intelligence capabilities it will need for the
broad range of national security challenges in the decades
ahead. National intelligence centers should be among those
capabilities.
We deeply appreciate your interest in the Commission's
recommendations, and we look
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forward to working with you on the national intelligence
centers proposal, as well as on our other recommendations.
Very respectfully,
Tom Kean.
Lee Hamilton.
The PRESIDING OFFICER. The Senator from Arkansas.
Mr. LIEBERMAN. Madam President, I wonder if I could, through you, ask
the distinguished Senator from Arkansas if he is going to comment on
Senator Graham's amendment.
Mr. PRYOR. No. I was going to comment on an amendment that we
adopted.
Mr. LIEBERMAN. Madam President, after Senator Pryor comments, I will
be glad to speak for Senator Graham.
The PRESIDING OFFICER. The Senator from Arkansas.
Mr. PRYOR. Madam President, I rise today with a note of
encouragement; that is, one of the things I have noticed through the
committee process, and certainly on the Senate floor, is how
bipartisan--or maybe in a better sense of the word, nonpartisan--this
debate has been. I think the Senate is very committed to following up
on the 9/11 recommendations in the 9/11 report. I think we are
approaching this in a way that is very constructive and very positive,
and which we all hope and pray in the long term is very effective for
our national security and for our intelligence.
I know there are a number of amendments that we have still pending. I
don't know exactly what is going to be offered or what will be agreed
to, but my plan is to listen very carefully to all of those amendments.
I think they all have value. I may vote against some of them;
nonetheless, I think it is important that we have this discussion, have
this debate, and show our leadership for this Nation on this very
issue.
There are two Members, two really great leaders, I wish to commend;
that is, Senator Collins and Senator Lieberman. They have done a
fantastic job and have demonstrated the patience of Job through this
process in their determination and commitment. They are a prime example
of how this Senate can work and should work and how great things can be
accomplished by working together.
I think it is incumbent for us as a Senate and as a Congress to
provide the tools and the structure that we need in our intelligence
community to connect the dots.
I think the 9/11 Commission said this in a number of ways in a number
of cases. But at one point, the 9/11 Commission report said:
Of all our recommendations, strengthening congressional
oversight may be among the most difficult and important.
I know because I have talked to many of my colleagues on both sides
of the aisle that this body is committed to reforming itself when it
comes to intelligence issues.
Let me read, if I may, from the report one short paragraph found on
page 105 of the 9/11 Commission Report. It says:
Fourth, the oversight function of Congress has diminished
over time. In recent years, traditional review of the
administration of programs and the implementation of laws has
been replaced by ``a focus on personal investigations,
possible scandals, and issues designed to generate media
attention.'' The unglamorous but essential work of oversight
has been neglected, and few members past or present believe
it is performed well. DCI Tenet told us: ``We ran from threat
to threat to threat. . . . [T]here was not a system in place
to say, `You got to go back and do this and this and this.'
'' Not just the DCI but the entire executive branch needed
help from Congress in addressing the questions of
counterterrorism strategy and policy, looking past day-to-day
concerns. Members of Congress, however, also found their time
spent on such everyday matters, or in looking back to
investigate mistakes, and often missed the big questions--as
did the executive branch. Staff tended as well to focus on
parochial considerations, seeking to add or cut funding for
individual (often small) programs, instead of emphasizing
comprehensive oversight projects.
Madam President, my hope is when we finish this bill--it looks as
though next week, realistically at this point--we will then turn to the
work of reforming congressional oversight. Members on both sides of the
aisle are very committed to doing that.
Let me speak for a moment or two about an amendment I was able to
tack on in committee. Again, I thank the leadership in the committee
but also thank the entire committee because in the end, after we
explained this and worked through this and walked through this, we
decided this was an amendment that should be added to the bill, and it
currently is in the proposed legislation.
Basically, one thing the 9/11 Commission Report said is we need to
have a way to evaluate our intelligence structures. It is important as
we pass this reform legislation, the most significant reform of
intelligence since 1947, to build into it some sort of look-back
provision. That is what we have tried to do with my amendment. I am
glad the committee has agreed with this and has been able to go along
with this.
Basically, it requires the GAO to give a report in 2 years, an
independent objective look at what we have done--have we been
successful? Have we failed? Do we need to take away a little bit here
or add a little bit there? But an independent evaluation, nonpartisan
look at exactly what we have done to make sure it is working. It is too
important to not get it right the first time.
For example, the 9/11 Commission found a need-to-know culture of
information protection rather than a need-to-share culture of
integration. The GAO review can indicate whether adequate mechanisms
have been put in place to change this culture and be more productive
and better, long term, for U.S. intelligence.
I thank the committee for its hard work. I thank the two leaders for
their hard work. I thank this entire body for approaching this
challenge in a very nonpartisan way.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Madam President, I commend the Senator from Arkansas for
the diligence with which he approached the hearings throughout the
August recess and the writing of this important legislation. I very
much appreciate the comments of the Senator from Arkansas. He is always
generous to me, as well as to the ranking member. We would be remiss if
we did not thank him for his contributions to this bill. He was
terrific about redoing his schedule throughout the August recess to
participate in our numerous hearings. He was instrumental in drafting
provisions of the bill including the requirement for the GAO report. I
recognize his hard work and leadership and thank him for his kind
comments.
The PRESIDING OFFICER. The Senator from Florida.
Amendment No. 3797
Mr. GRAHAM. Madam President, I send to the desk the amendment
consistent with the statement I have just made and ask for its
immediate consideration.
The PRESIDING OFFICER. The pending amendment is set aside.
The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Florida [Mr. Graham] proposes an amendment
numbered 3797.
Mr. GRAHAM. Mr. President, I ask unanimous consent that the reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To improve the authorities with respect to the national
intelligence centers)
On page 94, line 14, insert before the period the
following: ``, whether expressed in terms of geographic
region, in terms of function, or in other terms''.
On page 95, line 3, insert after the period the following:
``Each notice on a center shall set forth the mission of such
center, the area of intelligence responsibility of such
center, and the proposed structure of such center.''.
On page 96, line 7, insert ``of the center and the
personnel of the center'' after ``control''.
On page 96, between lines 8 and 9, insert the following:
(5) If the Director of a national intelligence center
determines at any time that the authority, direction, and
control of the Director over the center is insufficient to
accomplish the mission of the center, the Director shall
promptly notify the National Intelligence Director of that
determination.
On page 97, between lines 2 and 3, insert the following:
(5) develop and unify strategy for the collection and
analysis of all-source intelligence;
(6) integrate intelligence collection and analysis, both
inside and outside the United States;
(7) at the discretion of the NID develop interagency plans
for the collection of all-source intelligence, which plans
shall--
(A) involve more than one department, agency, or element of
the executive branch (unless otherwise directed by the
President); and
[[Page S10004]]
(B) include the mission, objectives to be achieved, courses
of action, parameters for such courses of action,
coordination of agencies intelligence collection activities,
recommendations for intelligence collection plans, and
assignment of departmental or agency responsibilities;
(4) ensure that the collection of all-source intelligence
and the conduct of operations are informed by the analysis of
all-source intelligence; and
On page 99, between lines 20 and 21, insert the following:
(g) Review and Modification of Centers.--(1) Not less often
than once each year, the National Intelligence Director shall
review the area of intelligence responsibility assigned to
each national intelligence center under this section in order
to determine whether or not such area of responsibility
continues to meet intelligence priorities established by the
National Security Council.
(2) Not less often than once each year, the National
Intelligence Director shall review the staffing and
management of each national intelligence center under this
section in order to determine whether or not such staffing or
management remains appropriate for the accomplishment of the
mission of such center.
(3) The National Intelligence Director may at any time
recommend to the President a modification of the area of
intelligence responsibility assigned to a national
intelligence center under this section. The National
Intelligence Director shall make any such recommendation
through, and with the approval of, the National Security
Council.
(h) Separate Budget Account.--The National Intelligence
Director shall, in accordance with procedures to be issued by
the Director in consultation with the congressional
intelligence committees, include in the National Intelligence
Program budget a separate line item for each national
intelligence center under this section.
On page 99, line 21, strike ``(g)'' and insert ``(i)''.
Ms. COLLINS. Madam President, I thank our distinguished colleague
from Florida, Senator Graham, for introducing this amendment that
clarifies the role of the national intelligence centers that the NID is
empowered to create under our bill.
Senator Graham, as former chair of the Intelligence Committee, and
having just published a book on intelligence, provides this body with a
very important perspective in this debate. His amendment strengthens
the role of the national intelligence centers by placing them on par
with the National Counterterrorism Center. This amendment provides much
needed flexibility to the national intelligence director in
establishing the centers. It allows the director to establish criteria
for the centers to focus on vital areas of expertise.
The amendment also directs the national intelligence director to
provide an annual report to Congress on the responsibilities of each of
the centers that are created. This is an important aspect of this
amendment. We can no longer afford to maintain the same percentage of
Russian linguists today, for example, as we had during the Cold War. We
have new wars, new challenges, new threats, and they demand new
capabilities and responses as the 9/11 Commission Report indicated.
This amendment is well within the intent of the 9/11 Commission
Report and recommendations as is evident by the letter that the Senator
has from the chairman and vice chairman of the committee. I endorse the
amendment on my side. I am happy to accept it. I thank the Senator for
working closely with us.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. LIEBERMAN. Madam President, I rise to support the amendment, as
well, and to thank Senator Graham for the characteristic thoughtfulness
he brought to this matter and the very constructive additions this
amendment makes to the bill and to clarify the authority and the
importance of these centers.
This is one of the central contributions of this legislation and
derivatively of the 9/11 Commission Report. It grows out of the
outrageous failure to share information prior to September 11 that the
9/11 Commission Report documents in riveting detail.
As the Chair knows, we would establish on the passage of this, a
national counter terrorism center to focus all of our efforts from all
agencies--unity of effort, joint command operations, et cetera--in the
fight against terrorism. We also take this basic idea and say to the
national intelligence director, you can set up other centers to deal
with other particular problems--maybe a specific threat like weapons of
mass destruction or nuclear proliferation specifically or a country or
subgroup that may be threatening--the United States, set up a center on
North Korea or Iran--and you would guarantee, thereby, in these other
centers that all the arms of our Government would know what the others
would be doing, would be sharing intelligence and analysis of
intelligence through these centers, being able to plan joint operations
for the collection of intelligence, very critically important to inform
the President and the officers of our Government how to deal with these
crisis. Senator Graham's amendment makes clear how important these
centers are that the NID can create.
I stress, also, the centers are not permanent. They are part of the
vision that comes out of the 9/11 Commission Report. The Collins-
Lieberman bill before the Senate now is about modern management, 21st
century management. If there is a problem, create a center with all
your best people around the table planning how to collect and analyze
intelligence about the problem, advise the President, Secretary of
State, Secretary of Defense, whomever. Once that problem is resolved,
that center can and should be terminated. That is the kind of
flexibility involved.
Senator Graham, as Senator Collins has said, is building on an
extraordinary record of experience and very constructive leadership,
outspoken, appropriately outspoken leadership in the area of
intelligence, and has given us the benefit of that experience with this
amendment. I thank him for it. I am happy to accept the amendment on
our side.
The PRESIDING OFFICER (Mr. Ensign). The Senator from Maine.
Ms. COLLINS. Mr. President, I know of no further debate on this
amendment.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
The amendment (No. 3797) was agreed to.
Mr. GRAHAM of Florida. Mr. President, I extend my deepest gratitude
to Senator Collins and Senator Lieberman and also my appreciation for
the Senators' kind remarks.
Mr. LIEBERMAN. It is deserved.
I move to reconsider the vote and I move to lay that motion on the
table.
The motion to lay on the table was agreed to.
Mr. LIEBERMAN. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. KYL. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 3801
Mr. KYL. Mr. President, I ask unanimous consent that we lay aside the
pending business so I may offer an amendment which is at the desk.
Before I finish, I want to say this on behalf of Senator Chambliss
and myself. My intention is to speak on it now, then come back to it--
pursuant to an agreement that will be worked out with the managers of
the bill--sometime early tomorrow afternoon, and people who are opposed
to it will have been able to come to the floor and debate it. So we
will talk on it right now for a little while, but the purpose for
proceeding now is to get it pending so we can later reach an agreement
and set it for debate at a later time.
The PRESIDING OFFICER. The clerk will report the amendment.
The legislative clerk read as follows:
The Senator from Arizona [Mr. Kyl], for himself, Mr.
Chambliss, and Mr. Domenici, proposes an amendment numbered
3801.
The amendment is as follows:
(Purpose: To modify the privacy and civil liberties oversight)
On page 52, strike beginning with line 21 through page 56,
line 8.
On page 154, strike beginning with line 8 through page 160,
line 11 and insert the following:
(d) Functions.--
(1) Advice and counsel on policy development and
implementation.--The Board shall--
(A) review proposed legislation, regulations, and policies
related to efforts to protect the Nation from terrorism,
including the development and adoption of information sharing
guidelines under section 205(g);
(B) review the implementation of new and existing
legislation, regulations, and policies related to efforts to
protect the Nation from
[[Page S10005]]
terrorism, including the implementation of information
sharing guidelines under section 205(g); and
(C) advise the President and the departments, agencies, and
elements of the executive branch to ensure that privacy and
civil liberties are appropriately considered in the
development and implementation of such legislation,
regulations, policies, and guidelines.
(2) Oversight.--The Board shall continually review--
(A) the regulations, policies, and procedures, and the
implementation of the regulations, policies, and procedures,
of the departments, agencies, and elements of the executive
branch to ensure that privacy and civil liberties are
protected;
(B) the information sharing practices of the departments,
agencies, and elements of the executive branch to determine
whether they appropriately protect privacy and civil
liberties and adhere to the information sharing guidelines
prescribed under section 205(g) and to other governing laws,
regulations, and policies regarding privacy and civil
liberties; and
(C) other actions by the executive branch related to
efforts to protect the Nation from terrorism to determine
whether such actions--
(i) appropriately protect privacy and civil liberties; and
(ii) are consistent with governing laws, regulations, and
policies regarding privacy and civil liberties.
(3) Testimony.--The Members of the Board shall appear and
testify before Congress upon request.
(e) Reports.--
(1) In general.--The Board shall periodically submit, not
less than semiannually, reports--
(A)(i) to the appropriate committees of Congress, including
the Committees on the Judiciary of the Senate and the House
of Representatives, the Committee on Governmental Affairs of
the Senate, the Committee on Government Reform of the House
of Representatives, the Select Committee on Intelligence of
the Senate, and the Permanent Select Committee on
Intelligence of the House of Representatives; and
(ii) to the President; and
(B) which shall be in unclassified form to the greatest
extent possible, with a classified annex where necessary.
(2) Contents.--Not less than 2 reports submitted each year
under paragraph (1)(B) shall include--
(A) a description of the major activities of the Board
during the preceding period; and
(B) information on the findings, conclusions, and
recommendations of the Board resulting from its advice and
oversight functions under subsection (d).
(f) Access to Information.--
(1) Authorization.--If determined by the Board to be
necessary to carry out its responsibilities under this
section, the Board is authorized to--
(A) have access from any department, agency, or element of
the executive branch, or any Federal officer or employee, to
all relevant records, reports, audits, reviews, documents,
papers, recommendations, or other relevant material,
including classified information consistent with applicable
law;
(B) interview, take statements from, or take public
testimony from personnel of any department, agency, or
element of the executive branch, or any Federal officer or
employee; and
(C) request information or assistance from any State,
tribal, or local government.
(2) Agency cooperation.--Whenever information or assistance
requested under subparagraph (A) or (B) of paragraph (1) is,
in the judgment of the Board, unreasonably refused or not
provided, the Board may submit a request directly to the head
of the department, agency, or element concerned.
On page 164, strike beginning with line 21 through page
170, line 8.
Mr. KYL. Mr. President, neither the 9/11 Commission nor the Senate
Intelligence Committee, nor anyone else that I am aware of, has said
the problem leading up to the attack of 9/11 was due to too much
intelligence. The problem, obviously, arose because we didn't have
enough intelligence. We could not gather enough information in a timely
way to put together all of the possibilities--some say connect the
dots--in order to predict that a particular kind of attack was going to
occur on that day.
We have had a lot of good, constructive suggestions from the 9/11
Commission, from the Senate Intelligence Committee, from the
administration, from the work of the Governmental Affairs Committee,
and from other commissions in trying to understand why we didn't have
enough intelligence and why we could not put all of this together. Many
of the recommendations of the Commission and the legislative solutions
in the proposed bill try to correct that problem of not having enough
good intelligence.
None of the problems identified suggested that we had too much
intelligence and the problem was that people's civil liberties were
somehow being jeopardized, or that their privacy rights were being
jeopardized. Nobody has ever said that was a problem.
Subsequent to 9/11, we passed the PATRIOT Act. It has been signed
into law and most law enforcement officials, the administration, and
others argue persuasively, I think, that it has done a lot to help them
win the war on terror by collecting additional intelligence. Some have
concerns about some of the provisions of the PATRIOT Act with respect
to civil liberties or privacy rights. But those are issues that have
come up subsequent to 9/11.
My point is that the problem before 9/11 was not having too much
intelligence and that jeopardized people's privacy or civil rights.
Therefore, it comes as a great surprise to me that there is such a huge
emphasis in the committee bill on privacy, civil rights, on having an
ombudsman to protect people's rights, on having such an emphasis within
the national intelligence directorate on these subjects, having a
special board that would look into it, with subpoena powers, outside
the intelligence community, and so on. It is my considered judgment,
having served on the committee for 8 years, and having heard testimony
from a great many people, including Richard Clark, by the way, who
testified that risk aversion was one of the key problems leading up to
9/11--it is my judgment that the overkill of all of these provisions in
the bill is a fatal flaw in this legislation, which must be corrected,
or else what we would have done is to rearrange the bureaucracy here,
putting a person in charge as the national intelligence director and
making some other changes but crippling his effort and the efforts of
the intelligence collection gatherers, analysts, and others in their
ability to protect us by gathering intelligence.
Risk aversion, which is a big problem today, will be a huge problem
in the future because, in addition to the people today who are looking
over the shoulders of the intelligence community, we will have a whole
array of new entities with great powers looking over their shoulder;
and all of the effort that we are going through to try to begin saying
that people should think outside the box, should be bold, innovative,
and imaginative, that we need more human intelligence, and that those
human intelligence agents are going to do things to gather more
intelligence--we should have people who are willing to think outside
the box. All of that is going to be significantly jeopardized because
of the risk aversion that will be blanketed over all of the community
with all of these different entities saying, wait a minute, we
understand you are trying to collect intelligence, but we have people's
civil rights and privacy rights and all the rest to be concerned about
as well.
Of course those are legitimate concerns. That is why we have entities
today that help to ensure that privacy and civil rights are not
jeopardized. It is enough. This bill creates so many new opportunities
for people who object to intelligence gathering and analysis in the way
we know it needs to be done that they are going to be able to ball up
forever any ability to get meaningful intelligence if we are not
careful about how we construct this bill.
Let me tell you a little bit about what I am talking about. Here is a
bit of background. Risk aversion--we understand what it means. It was
testified to by people such as Richard Clark and others before the
Intelligence Committee as the mindset which exists if you do anything
out of the ordinary, if you go against the grain, if you collect by
unorthodox measures, if you analyze intelligence in a way that might be
contrary to the superiors above you in the organization, or to what
somebody in Congress or somebody else wants to see, or if the actions
that you take have some degree of risk associated with them--either
political risk or legal risk, or certainly operational risk in terms of
casualties and the like--therefore, because of all of these things
there is an aversion to taking those risks.
Government employees who have a career, who have their retirement in
mind, and who want to continue to work with the agency want to be sure
they are able to continue their careers, do their jobs, and not,
because they perhaps work outside of the box, be penalized for doing
that.
Agent Rowling of the FBI talked about this in her inability to get
the FBI to act on a warrant request she
[[Page S10006]]
sought to look into Zacarias Moussaoui's computers. One of the reasons
they didn't act was out of a ``political correctness''--their term, not
mine--that concerned them about the view that it would look like they
were going after somebody on the basis of racial profiling, or some
kind of profiling, rather than because they were under suspicion of
committing a crime.
This is the kind of risk aversion that everybody agreed was part of
the problem with the intelligence gathering and analysis prior to
September 11. How do you make that situation worse? You do it by adding
new layers of people who are second-guessing these intelligence agents
and analysts. There are enough people second-guessing them already,
imposing the legal and political layer or filter of approval of the
actions of the people in the field. But what the bill does is to create
whole new layers.
First, it follows a recommendation of the 9/11 Commission to create
some kind of outside board, but goes far beyond the 9/11 Commission
recommendations in empowering this board with subpoena power, literally
the authority of this outside board, that is not within the
intelligence community at all, a citizen board, to haul in any agent
anywhere in the world and grill him about what he did or did not do or
what he concluded or did not conclude, with no guidance whatsoever.
This is a recipe for disaster.
In addition, as if that were not enough, of the six assistant
directors of the national intelligence directorate, fully a third of
them, two out of the six, have nothing to do with intelligence
collection or analysis; they are the privacy and civil rights division.
First, one wonders why those are not the same thing and, second, why
you would have to have two out of the six directorates specifically
charged with this responsibility. We already have an inspector general
whose responsibilities include any situation in which an agent or
agency went beyond legal authority or beyond other appropriate
authority in the conduct of his or her business. But in addition to the
inspector general, in addition to the officers who currently exist in
each of the agencies of the intelligence community--virtually all of
them--to deal with privacy and civil rights concerns--these already
exist--we create two new directorates with this legislation: this
outside civilian board and an ombudsman.
In looking through the ombudsman's responsibilities, for example,
pity the poor intelligence agent who raises a question that causes this
ombudsman to have to question him.
This is not even to get into the congressional oversight which we
want to enhance. Our working group, which is developing the
improvements to the Intelligence Committee operation, will be soon, I
think, be making a recommendation to the body, either in conjunction
with the underlying bill or as an amendment to it, that will also fold
in enhanced congressional oversight.
We want enhanced congressional oversight, but it is a double-edged
sword because it has been abused in the past and can be abused in the
future.
When Members have not intelligence as their first priority but
questioning somebody within the intelligence community, they can be
pretty hard on the intelligence community. We can go all the way to the
Church Commission in 1976 to see what kind of damage that can do. So we
need to be careful about this congressional oversight, but it is going
to be enhanced. We are going to improve our ability to oversee the
intelligence community.
In addition to the offices that exist today, and in addition to the
inspector general, and in addition to the enhanced congressional
oversight, we are creating two more directorates, an outside board, and
an ombudsman, all of whom have essentially the same general
responsibility of questioning whether the intelligence agents,
agencies, analysts, and others are doing their job properly. Then we
will ask ourselves why we could not get anybody to think outside the
box, to be forward leaning, to try to be aggressive in collecting
intelligence, why everybody was meekly following a very single straight
line.
The fact that we are creating a national intelligence director
creates a bit of a problem in this regard in the first place because
instead of having a wider array of entities involved, each with their
own points of view, sort of the devil's advocate concept recommended by
many, including the 9/11 Commission, to get out of a single-channel
orientation group-think, we are making the problem worse, in my view,
by creating this single national intelligence director.
If you want a career in the agency, you better not run afoul of what
the director wants and what his views are. That is the reality of
bureaucracy, and it exists in every agency of the Government, not just
the intelligence community. But in the intelligence community, it is
particularly important because we want people who are willing to
question, to go against the grain, to disagree with their boss, to take
a risk.
If we look back at President Clinton's directives to the intelligence
community, he tried to be forward leaning, especially with regard to
al-Qaida and Osama bin Laden. To paraphrase, in effect what he said is
we have to do everything we can to try to get these guys. Repeatedly,
efforts were made to bring to his attention operations that would
either improve our intelligence or operationally deal with al-Qaida and
Osama bin Laden. They were shot down by the Pentagon, by the Secretary
of State, by the National Security Adviser, by the lawyers, by the
intelligence community itself, the Director of the CIA. Every time we
tried to do something, almost, somebody said this is too risky; we
cannot do it. That was why the 9/11 Commission, the Senate Intelligence
Committee, and many other observers have said we have to get out of
this stultifying risk-aversion environment where people are afraid that
somebody is looking over their shoulder and is going to jump on them if
they do anything that is the least bit out of the ordinary or risky. We
have to have the out of the ordinary and risky if we are ever going to
defeat this very unconventional enemy.
What does the bill do? It does not try to solve the problem; it makes
it far worse. The purpose of our amendment is to say we will follow the
9/11 Commission recommendation and set up this outside commission, but
for Heaven's sake, let's not give it the kind of subpoena power--
Congress already has that, the inspector general already has the
ability to look into all of these things. We do not need an outside
board of five, or whatever, people accountable to nobody with the
ability to totally disrupt what the intelligence community is doing.
It is fine to report to Congress, to analyze what they think the
situation is and let us know what their concerns are. But that is far
different from operationally getting right down into the bowels of the
organization with hands that can extract anything, classified or not,
subpoena anybody, whether in Afghanistan or Langley or wherever, and
publicly question what is being done.
That is the first part of the amendment.
The second part of the amendment is to say we do not need all these
new entities given the fact we already have existing civil rights and
privacy controls. I do not want to be misunderstood. It would be very
easy to characterize or mischaracterize what we are trying to do by
saying these are people who do not care anything about civil rights;
these are people who want the agency to run roughshod over American
civil rights, and people can get pretty revved up about that very
quickly.
Nothing could be further from the truth. The folks who are
understandably going to put a high priority on protecting civil rights
need to balance their legitimate concerns about civil rights with a
concern about the lives of American citizens, to balance the
legislation that is supposed to help fix the problem in such a way that
we do not put so many constraints on our intelligence community that it
can't do its job.
One of the biggest problems identified, this problem of risk
aversion, will be horribly exacerbated if we simply blindly follow the
recommendation of those who brought this bill to the floor--and I
understand there were a lot of compromises made in order to get
unanimous approval out of the committee, but sometimes getting
unanimous approval is the wrong goal.
[[Page S10007]]
Sometimes you need to make tough choices and you need to reject
proposals that are offered by people who then agree to vote for the
overall bill if they get their amendment in the bill. That is what
happened with this bill, and there are too many little amendments that
got in which, when added up, are going to create a huge problem with
our intelligence community with respect to this issue of risk aversion.
I cannot stress strongly enough, and this will be my final point, our
goal ought to be to improve our intelligence collection, to improve
human intelligence, to improve analysis, to foster a sense within this
community that they do not have to just follow the narrow channel of
group-think that was criticized so strongly by the 9/11 Commission,
that they do not have to feel risk averse, that they can take a chance
sometimes because we need people to be imaginative and innovative and
think about possibilities that before 9/11 we could not have even
dreamed of.
I know now some people like to go back and ask: Why did you not think
up the fact that people could fly planes into these buildings? Well,
one reason was because as soon as one starts thinking about those kinds
of things, somebody is going to come down on them like a ton of bricks
and say: Get back to your job and stay within the channel here. We do
not have time for that kind of fantasizing. You are living in a fantasy
world.
We have to have people who are willing to ask these tough questions
and think in ways that they are not going to get slapped down when they
do. The sure recipe, the prescription for that occurring is by piling
on layer upon layer of outside groups, ombudsmen, civil rights, privacy
divisions, all of these groups that are duplicative of what we already
have, to call into question what our agents and analysts are doing.
There is simply no need to have so many people performing the same
task, which, in any event, does not add to intelligence, but, by its
very nature, is designed to restrict intelligence activity. Surely, we
can protect civil liberties and privacy without setting up a situation
in which it is going to be incredibly difficult for the intelligence
community to effectively perform its mission.
After all, our chief objective is to make it easier to predict and
prevent a terrorist attack, not more difficult.
Excessive oversight will result in our intelligence officers being
more cautious than they should be, and deter them from taking the risks
that may be necessary to keep our country safe.
Indeed, an aversion to taking risks, even when they should be taken,
already plagues our intelligence community. Time and time again, this
has contributed to intelligence failures, most recently, of course, 9/
11 and the intelligence community's claims about Saddam's weapons of
mass destruction.
There are numerous reasons for this culture of risk aversion--unclear
authorities, legal restrictions, and excessive oversight are among
them.
The deterioration of our intelligence community's clandestine service
offers a good example.
According to the 9/11 Commission's report, James Pavitt, the head of
the CIA's Directorate of Operations, recalled that covert action had
gotten the clandestine service into trouble in the past, and he had no
desire to see it happen again.
The ``trouble'' he referred to was at least partly the result of the
1973 Church Committee hearings in Congress. Added to that were the
restrictive guidelines promulgated by then-CIA Director John Deutch in
1995, which severely limited the ability of CIA case officers to meet
with and recruit foreign nationals who may have been involved in
dubious activities or have blood on their hands.
The end result was out intelligence community's inability to
penetrate al-Qaida's command structure. Before 9/11, we had not one
source inside that command structure. Unclear authorities, excessive
oversight, and burdensome restrictions prevented our people on the
ground from being effective.
I recognize that privacy and civil liberties are substantively
entirely different matters. However, the end result of unnecessary
bureaucracy, restrictions, and excessive oversight will be the same. We
will cultivate a culture within the intelligence community that makes
it less likely that people will be willing to do the jobs we are asking
them to do, and more likely that they will want to ``play it safe.''
My amendment would very simply delete sections 126 and 127, which
require officers for privacy and civil liberties with the National
Intelligence Authority; it would strike section 212, requiring privacy
and civil liberties officers with a long list of Executive Branch
departments and agencies; and it would modify the Privacy and Civil
Liberties Oversight Board established by section 211.
The National Intelligence Authority does not need three individuals
assigned to the same task. The IG of the National Intelligence
Authority will be in place to ensure privacy and civil liberties
receive adequate attention and oversight.
Similarly, it is redundant to require privacy and civil liberties
officers within almost every national-security related department and
agency.
My amendment would retain the Privacy and Civil Liberties Oversight
Board, as the 9/11 Commission recommended. However, it would limit
Board's ability to interfere in the activities of relevant departments
and agencies.
I hope that Members will support this amendment. It follows the 9/11
Commission's recommendations with respect to privacy and civil
liberties, and ensures adequate oversight and protections, but does so
without hamstringing the community.
I urge my colleagues when we debate this amendment further tomorrow
to please read the bill, look at the relevant portions of the 9/11
Commission recommendations, look at the testimony of those who have
raised this kind of question and ask whether the bill as presented is
not a little bit out of balance--I contend a great deal out of balance.
I do not cast any aspersions on the people who worked so hard to
bring this bill to the Senate floor. There are not enough compliments
for the Senator from Maine and the Senator from Connecticut for the
hard work they have done and all of the others who have worked so hard
on it. This is not in any way meant as personal criticism, but I fear
if we do not very carefully analyze this and try to correct it--and
remember, that was part of what this was all about: let's get the bill
to the floor; we can always make corrections here. This is the time to
do it. We have not written a bill on the floor for a long time, but
this is too important not to take the time to do right.
I urge my colleagues, let us not make the mistake of rushing forward
with this, putting a rubberstamp on the committee's bill because we
have to do something before we leave on October 8. We will spend years
ruing the day we took this kind of action if we are not careful about
what we do.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, I ask unanimous consent that the pending
amendment of Senator Kyl be laid aside for purposes of proposing
additional amendments.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Amendment No. 3806
Mr. McCAIN. Mr. President, I send an amendment to the desk.
The PRESIDING OFFICER. The clerk will report.
The bill clerk read as follows:
The Senator from Arizona [Mr. McCain], for himself, and Mr.
Lieberman, proposes an amendment numbered 3806.
Mr. McCAIN. Mr. President, I ask unanimous consent that the reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To improve the transition between Presidential
administrations)
At the end of the bill, add the following:
TITLE __--PRESIDENTIAL TRANSITION
SEC. __01. PRESIDENTIAL TRANSITION.
(a) Services Provided President-Elect.--Section 3 of the
Presidential Transition Act of 1963 (3 U.S.C. 102 note) is
amended--
(1) by adding after subsection (a)(8)(A)(iv) the following:
``(v) Activities under this paragraph shall include the
preparation of a detailed classified, compartmented summary
by the relevant outgoing executive branch officials of
specific operational threats to national security; major
military or covert operations;
[[Page S10008]]
and pending decisions on possible uses of military force.
This summary shall be provided to the President-elect as soon
as possible after the date of the general elections held to
determine the electors of President and Vice President under
section 1 or 2 of title 3, United States Code.'';
(2) by redesignating subsection (f) as subsection (g); and
(3) by adding after subsection (e) the following:
``(f)(1) The President-elect should submit to the Federal
Bureau of Investigation or other appropriate agency and then,
upon taking effect and designation, to the agency designated
by the President under section 115(b) of the National
Intelligence Reform Act of 2004, the names of candidates for
high level national security positions through the level of
undersecretary of cabinet departments as soon as possible
after the date of the general elections held to determine the
electors of President and Vice President under section 1 or 2
of title 3, United States Code.
``(2) The responsible agency or agencies shall undertake
and complete as expeditiously as possible the background
investigations necessary to provide appropriate security
clearances to the individuals who are candidates described
under paragraph (1) before the date of the inauguration of
the President-elect as President and the inauguration of the
Vice-President-elect as Vice President.''.
(b) Sense of the Senate Regarding Expedited Consideration
of National Security Nominees.--It is the sense of the Senate
that--
(1) the President-elect should submit the nominations of
candidates for high-level national security positions,
through the level of undersecretary of cabinet departments,
to the Senate by the date of the inauguration of the
President-elect as President; and
(2) for all such national security nominees received by the
date of inauguration, the Senate committees to which these
nominations are referred should, to the fullest extent
possible, complete their consideration of these nominations,
and, if such nominations are reported by the committees, the
full Senate should vote to confirm or reject these
nominations, within 30 days of their submission.
(c) Security Clearances for Transition Team Members.--
(1) Definition.--In this section, the term ``major party''
shall have the meaning given under section 9002(6) of the
Internal Revenue Code of 1986.
(2) In general.--Each major party candidate for President
may submit, before the date of the general election, requests
for security clearances for prospective transition team
members who will have a need for access to classified
information to carry out their responsibilities as members of
the President-elect's transition team.
(3) Completion date.--Necessary background investigations
and eligibility determinations to permit appropriate
prospective transition team members to have access to
classified information shall be completed, to the fullest
extent practicable, by the day after the date of the general
election.
(d) Effective Date.--Notwithstanding section 341, this
section and the amendments made by this section shall take
effect on the date of enactment of this Act.
Mr. McCAIN. Mr. President, as I believe most of my colleagues know,
Senator Lieberman and I made a commitment to the families and the 9/11
Commission that we would ensure that all of their 41 recommendations
were considered one way or another in this legislation. Because of the
lack of scope of the Governmental Affairs Committee, there were several
recommendations which were not considered.
Senator Lieberman and I have already proposed and had adopted several
amendments addressing the recommendations of the 9/11 Commission. There
are three remaining issues. One of them is noncontroversial, which I
will be proposing at this time and would hope would be voice voted
since it is noncontroversial. Then there are two additional amendments
concerning two additional recommendations of the 9/11 Commission. Both
of those are controversial, so I would propose those amendments and
then ask that they be set aside after they are placed for
consideration. Then they would be disposed of after debate, discussion,
or however the managers would like to dispose of those additional two
amendments.
I hope I made myself somewhat coherent in that explanation.
The amendment that is at the desk addresses the 9/11 Commission's
recommendation to improve the transitions between administrations. It
is nearly identical to title IV of the 9/11 Commission Report
Implementation Act, which we introduced on September 7, except that it
does not include the security clearance-related provisions that were
adopted by the Governmental Affairs Committee and are already in the
underlying bill, S. 2845.
The Commission report states:
Since a catastrophic attack could occur with little or no
notice, we should minimize as much as possible the disruption
of national security policymaking during the change of
administrations by accelerating the process for national
security appointments. We think the process could be improved
significantly so transitions can work more effectively and
allow new officials to assume their new responsibilities as
quickly as possible.
As recommended by the Commission, this amendment is designed to help
ensure an incoming President-elect has his or her national security
team in place during a transition between administrations. The
amendment would direct the outgoing administration to provide the
President-elect, as soon as possible after the general election, a
detailed, highly classified summary of current threats to the national
security, major military and covert operations, and pending decisions
on possible uses of military force.
It also provides that the President-elect should submit to the agency
responsible for background checks the names of possible candidates for
high-level national security positions as soon as possible after the
date of the Presidential election. In turn, it requires that agency to
undertake and complete, to the fullest extent possible, the background
investigations necessary to provide appropriate security clearances to
these individuals by the date of inauguration.
Finally, it urges the Senate to consider the nominations of top
national security appointees as soon as possible, preferably within 30
days of the submission of a nominee.
As the chairman of a committee which has responsibility for the
confirmation of many Presidential nominees, I assure my colleagues that
I consider the Senate's advise and consent responsibilities to be very
important. This amendment is not proposing that we shirk our duties in
any way but that we act in the most efficient manner possible to
thoroughly review the nominees to national security-related positions
and allow for their confirmation so they can carry out the very
important duties to which they are charged.
I recognize that some, including administration officials, would
prefer that we go further. It has been suggested and I believe the
House bill even proposes that if the Senate has not voted to confirm a
nominee within 30 days after the nominee's name has been submitted, the
President alone should have the power to make that appointment. I, for
one, cannot support such a proposal, and I doubt that it would have the
support of the majority of Members in this body.
Let me also point out that this amendment does not include the
Commission's recommendations that the Senate should not require
confirmation of such national security executive appointees below
executive level 3. One of the reasons our amendment does not address
that particular proposal is that upon review of such positions, we
learned that it would eliminate the Senate's advise and consent duties
for many important security positions that we believe merit the
Senate's action. Executive level 4 includes all of the Assistant
Secretary positions, many of which one would argue are important
national security-related positions. Examples of these positions
include the Assistant Secretary of Defense for Strategy and Threat
Reduction, the Assistant Secretary of Defense for International
Security Affairs, the Assistant Secretary of Defense for Force
Management Policy, and others.
We believe that instead of removing the Senate's advise and consent
obligations, a better approach would be for the Senate to fulfill its
obligation in as expeditious a manner as possible. We hope this body
will make a greater effort to hold confirmation hearings and report
those national security-related nominations to the full Senate for
swift consideration. To help spur swift Senate consideration, this
amendment includes a sense of the Senate urging the President-elect to
submit the nominations for high-level national security positions to
the Senate by the date of the inauguration. It also calls for Senate
committees to hold nomination hearings and consider these nominations
to the fullest extent within 30 days of their submission.
The amendment before the Senate is but one proposal that we need to
move
[[Page S10009]]
forward. The more critical proposal which we still need to act on is
congressional reorganization and oversight over intelligence and
homeland security. As the Commission very directly pointed out, not
only are Government agency reforms needed, so too are institutional
reforms within Congress. The Commission went so far as to call
congressional oversight as ``dysfunctional.''
I remain hopeful that the bipartisan working group tasked by the
leadership to develop a proposal for congressional restructuring will
be successful. We owe it to the American public to fulfill our
collective responsibilities. These are not normal times. We are at war.
I just want to say again, as a member of the Armed Services
Committee, I have seen particularly the Defense Department, as well as
other national-security-related positions, literally vacant for months
and months and months. This is really not an acceptable situation, and
it has grown worse and worse. Background security checks have
lengthened in their time. The Senate doesn't get moving until a couple
of months after we are in session. It is not fair. It is not fair to
the nominees, it is not fair to the country, it certainly is not fair
to the Departments that are deprived of the services of a new
President's team. So I hope we will support this amendment.
I do not believe there is any controversy, so I ask for a voice vote
before I move to a second amendment.
The PRESIDING OFFICER. Is there further debate on the amendment? The
Senator from Connecticut.
Mr. LIEBERMAN. Mr. President, I am proud to be a cosponsor of this
amendment with Senator McCain. This, again, is part of our attempt to
implement through legislation as many of the recommendations of the 9/
11 Commission Report as we possibly can.
This is a critical one. The Commission made a finding not usually
focused on, as part of its work, that there is a danger because of the
slowness of the transition from one administration to the next that
America will be vulnerable. We have an enemy out there, a terrorist
enemy, that follows this kind of information. I don't make a causal
statement now, but the fact is that it was in 1993, the first year of
the Clinton administration, when the World Trade Center was first
attacked by terrorists with a truck bomb. And it was 2001, of course,
when the Twin Towers and the Pentagon and other targets were attacked,
in the first year of the Bush administration.
These are very good recommendations. I do want to point out simply
that the underlying bill incorporates a related recommendation by the
Commission to consolidate security clearance investigations in one
agency and encourage reciprocity among agencies with respect to those
clearances, which should help streamline what is now a frustratingly
Balkanized system for determining who can have access to sensitive
information.
This is very constructive. I do not believe it is controversial at
all.
To reiterate, this amendment will help ensure that our vital national
security capabilities do not suffer undue disruption during a
presidential transition.
The 9/11 Commission recommended several measures to provide a swift
hand-off between incoming and outgoing national security teams during a
change in presidential administrations, and this amendment reflects
those recommendations.
First, it directs the outgoing administration to provide the
President-elect with a detailed, classified summary of critical
operational threats, including major military or covert operations and
pending decisions on the use of military force. The most important
member of the national security apparatus is the Commander in Chief.
This provision will help the President-elect begin focusing on these
issues, and considering any imminent high stakes decisions that might
need to be made, well in advance of the day he or she takes office.
The amendment also includes several measures to help assure that the
President-elect will have a qualified team of national security
advisors in place early in the new administration and who are able to
hit the ground running.
It calls on the President-Elect to submit the names of likely high
level national security personnel for security clearances as soon as
possible after the election, and directs the appropriate Federal agency
or agencies to complete the necessary investigations for those
clearances as quickly as possible, preferably before the inauguration.
The amendment also urges the administration to submit nominees for
the top national security positions by Inauguration Day and, if it does
so, urges the Senate to act on those nominations within 30 days
wherever possible. I think this language is a useful reminder to both
the executive branch and the Senate that we should act to fill these
positions with all deliberate speed--mindful that delay has costs, but
dedicated as well to careful selection and review of nominees for these
sensitive positions.
Finally, the amendment would allow major party candidates to seek
security clearances for prospective transaction team members prior to
the election, with the goal of having those clearances available the
day after the election.
I should note that the underlying bill already incorporates a related
recommendation by the Commission to consolidate security clearance
investigations in one agency and encourage reciprocity among agencies
with respect to clearances. This should help streamline what is now a
frustratingly balkanized system for determining who can have access to
sensitive information.
We do not include the Commission's recommendation to eliminate Senate
confirmation for national security nominees below the Executive
Schedule III pay grade. This category would include many Assistant
Secretaries with critical policymaking responsibilities. Given the need
for strong Congressional oversight of the intelligence community and
other national security operations, it does not seem wise to remove
this important layer of Congressional review and accountability.
I believe this amendment helps ensure that we do not loosen our
footing in the war on terriorism at moments of presidential transition.
I urge my colleagues to support the amendment.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Mr. President, I join Senator Lieberman in commending
Senator McCain for offering this amendment. It would make several
changes to the Presidential transition process, changes that are
consistent with the recommendations of the 9/11 Commission.
The Governmental Affairs Subcommittee, chaired by Senator Voinovich,
held a hearing on this issue at which two of the Commissioners, Fred
Fielding and Jamie Gorelick, discussed how the current transition
process does not serve our country well in the handing over, the
transitioning of important national security decisions from one
administration to another. One reason is that it is such a slow process
to get the new administration's team in place.
I believe this amendment would greatly improve the process. I know of
no opposition to it. I urge adoption of the amendment.
The PRESIDING OFFICER. Is there further debate on amendment? If not,
the question is on agreeing to the amendment.
The amendment (No. 3806) was agreed to.
The PRESIDING OFFICER. The Senator from Arizona.
Amendment No. 3807
Mr. McCAIN. Mr. President, I send an amendment to the desk and ask
for its immediate consideration.
The bill clerk read as follows:
The Senator from Arizona [Mr. McCain] proposes an amendment
numbered 3807.
Mr. McCAIN. I ask unanimous consent the reading of the amendment be
dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The amendment is printed in Today's Record under ``Text of
Amendments.'')
Mr. McCAIN. Mr. President, this amendment may be subject to more
debate and discussion and may require a recorded vote. I intend to
propose this amendment, discuss it, and recognize that there will be
further discussion about this amendment.
This amendment addresses the terrorist travel and screening sections
of the 9/11 Commission report. Contained in this amendment are the
recommendations found on pages 383-390
[[Page S10010]]
of the 9/11 Commission report. The text of this amendment is nearly
identical to Title VI of S. 2774, which was introduced September 7.
In addition to working with the Commission on this amendment, Senator
Lieberman and I have sought the advice and counsel from as broad a
range of interested parties as possible. Meetings have been held to
address the concerns of many of the interested groups. While some may
prefer that we do not address these provisions, that is simply not an
option. We must act one way or the other on all of the recommendations
in the Commission report.
Despite the hard work by the people at the Department of Homeland
Security, it is apparent that our Government has just begun to carry
out some of the reforms necessary to prevent terrorists from entering
our country. Much remains to be done to target terrorist travel,
combine our multiple screening systems and ensure that identification
documents used to enter this country or to be used as feeder documents
are trustworthy.
Additionally, more must be done to improve the training we provide to
our immigration and consular officers. These people represent the first
line of defense in the security of our borders. We must ensure that
these officers have access to the best training, technology and
information available.
According to the Commission Report:
Better technology and training to detect terrorist travel
documents are the most important immediate steps to reduce
America's vulnerability to clandestine entry.
By restricting terrorist access to travel documents, we increase the
difficulty to travel into the United States. Our legislation aims to
address this pressing issue by requiring the Secretary of Homeland
Security to work with multiple Government agencies to develop a unified
strategy for combining terrorist travel intelligence, operations and
law enforcement into a cohesive effort to intercept terrorists, find
terrorist facilitators, and constrain terrorist mobility domestically
and internationally. All agencies responsible for guarding our Nation
against terrorist attack must be on the same page in our approach to
keeping terrorists out.
In order to efficiently screen those entering the United States, the
multiple terrorist screening systems already in place must be
integrated. Our legislation would require the Secretary of Homeland
Security to develop a comprehensive screening system that brings
together an integrated network of screening points that includes the
Nation's border security systems, transportation system, and critical
infrastructure and facilities. The Department of Homeland Security will
begin to address this issue as they carry out the orders given in HSPD-
11; however, our amendment represents a more comprehensive approach to
uniting our various screening systems.
Fundamental to increasing the security of our borders is the quick
and full implementation of US VISIT. I, like many of my colleagues,
have been troubled by the pace in which this system has been rolled
out. This legislation requires the Department of Homeland Security to
develop and implement a plan for the accelerated and full
implementation of the US VISIT system. Additionally, the amendment
directs the Secretary of Homeland Security to implement a single,
consolidated program designed to expedite the travel of previously
screened travelers across the borders of the United States.
Lastly, this amendment would implement 9/11 Commission's
recommendation that the Federal Government set standards for the
issuance of birth certificates, driver's licenses, and other sources of
identification. It has been well documented that many of the hijackers
and their associates used counterfeit social security numbers and other
fraudulent documents to obtain legal driver's licenses or State-issued
ID cards--or were able to simply but fake ID's--which they then used to
open bank accounts, rent cars, board airplanes, and attend flight
schools. The ease with which these basic documents of American life can
be counterfeited or obtained fraudulently is clearly a gaping hole in
homeland security.
Since the September 11, 2001, terrorist attacks, at least half the
States have passed legislation to tighten up their eligibility
requirements and procedures for issuing driver's licenses and State ID
cards. These initiatives are commendable and have improved security,
but the report of the 9/11 Commission, and numerous reports by Federal
agencies and other organizations have all concluded that additional
measures must be taken to improve the security of driver's licenses and
other forms of identification.
One study deserves special note. Over a 10-month period in 2002 and
2003, the Government Accountability Office--GAO--conducted an
undercover investigation of State driver's license practices and
procedures, visiting seven States--Arizona, New York, Michigan, South
Carolina, Virginia, Maryland, California and the District of Columbia.
In every jurisdiction, GAO investigators were able to obtain a driver's
license or State-issued ID using fraudulent documents, including fake
birth certificates and fake licenses from other States.
Our amendment would require birth certificates and driver's licenses
to meet new minimum Federal standards in order to be accepted by a
Federal agency for any official purpose. Minimum standards would be
established for proof and verification of identity by the applicant,
and to make the documents themselves more resistant to counterfeiting
and tampering. The amendment also would require minimum standards for
the processing of applications to address a widely recognized and
growing problem of fraud within the offices that issue licenses and
birth certificates, including the Arizona Department of
Transportation's Motor Vehicle Division. The amendment would authorize
grants to the States to assist them in meeting the new standards and to
help States computerize and match their birth and death records.
To improve the security of social security numbers, the amendment
would restrict the number of replacement cards that can be issued to an
individual; require verification of records used to obtain an original
social security card; and add death, fraud, and work authorization
indicators to the social security number verification system. DHS and
the Social Security Administration would also be tasked to take other
steps to safeguard social security cards from counterfeiting and
tampering, and increase enforcement against the fraudulent use of
social security cards.
Today, incredibly, the Social Security Administration will issue any
individual up to 52 replacement cards a year, a practice GAO has cited
as increasing the potential for misuse and fraud. Roughly two-thirds of
the 12.4 million social security cards issued by SSA in 2002 were
replacement cards. I am also incredulous that the system SSA uses to
verify social security numbers does not include notations for death,
fraud, or work authorization. Employers often use the system to verify
the social security number of new employees. Because there is no
notation on the records for death, a social security number for a
decreased individual used fraudulently by another person will be
verified as valid.
This amendment would not mandate a national ID card. It would not
infringe upon the right of the States to determine who can get a
driver's license. It would not establish a national database with
information on all drivers. And it would prohibit the establishment of
a single design for driver's licenses and birth certificates. We
believe it fulfills the recommendation of the 9/11 Commission without
trampling on States' rights, privacy, or civil liberties.
We must face the fact, however, that rightly or wrongly, the driver's
license is the basic form of ID in the United States. We use it to
board airplanes, to purchase alcohol and cigarettes, to cash checks,
and for a host of other purposes. We cannot ignore that the security of
driver's licenses and State-issued ID cards affect homeland security.
And we cannot ignore that driver's licenses can and indeed have been
used as an enabler for terrorism. There is a legitimate Federal role in
establishing minimum standards for these documents.
As the 9/11 Commission noted in its report, ``At many entry points to
vulnerable facilities, including gates for boarding aircraft, sources
of identification are the last opportunity to ensure that people are
who they say they are and to check whether they are terrorists.''
Making these documents more
[[Page S10011]]
secure will help make our country more secure, and help prevent another
terrorist attack on our country.
In closing, this amendment was carefully crafted to translate the
commission recommendations into legislative language. I applaud the
work of the commission and fully believe that the reforms they suggest
in this section of their report will go a long way towards increasing
the security and safety of all Americans.
The Commission released their report in late July. Their
recommendations are taking on a life of their own. The Commission
report is the No. 1 nonfiction bestseller on both the New York Times
and the Washington Post bestsellers list. The public is taking their
recommendations very seriously, and so too should we. The people will
hold us accountable for our failure if we don't enact these
recommendations.
I would like to point out a couple of additional facts.
Today, each State has a different set of requirements for driver's
licenses. Some States allow more than 30 different documents to be used
by applicants as proof of identity. How in the world can an employee at
the department of motor vehicles be expected to verify the authenticity
of the applicant?
I am amazed what some States will accept as proof of identity in
supporting documents. For example, one State allows a picture from a
high school yearbook to be used as one form of identification. Another
State allows the school report card to be used as long as it is less
than 1 year old. A third allows a snowmobile permit to be used as a
form of identification. Several States allow permits for concealed
weapons to be used in getting a driver's license. One State still has
licenses without a photograph of the license holder.
I recognize that we are on very interesting ground on this issue. On
the one hand, we are trying to balance people's civil liberties. We are
trying to make sure everyone has a right to privacy. We are trying to
make sure there is no national database which would be used to follow
people around the country. At the same time, if someone can
fraudulently obtain a driver's license and that driver's license is
used in obtaining access to places where acts of terror can be
committed, we have to try to see that does not happen.
What we have done with this amendment is try to carefully balance the
requirement for some better way of assuring identity and at the same
time not infringe on Americans' civil liberties. That is why I believe
this amendment probably will be the subject of some debate and
discussion and will probably require a recorded vote.
If somebody has a better idea, I would like very much to hear it, but
I do not know that there is a better idea. We have done extensive
research, have had extensive discussions and an extensive amount of
investigation building on the 9/11 Commission's findings and
recommendations.
It seems to me that this is a reasonable approach. But to have the
status quo in America where people can easily and fraudulently acquire
identification which allows them then to be able to commit acts of
sabotage, espionage, or terror and risk the lives of others is not a
status quo by which I think we can abide.
I thank my colleagues for their consideration. I look forward to the
debate.
If the distinguished manager would perhaps illuminate as to how she
would like to handle this particular amendment, I would be agreeable to
whatever the manager's procedure would be.
Ms. COLLINS. Mr. President, once again, I thank the Senator from
Arizona for bringing up another series of recommendations made by the
9/11 Commission.
This is a very broad amendment. There is much in it which I support,
and I agree with the Senator that there is a significant problem with
fraudulent documents, including driver's licenses. Nevertheless,
several groups, including the National Governors Association, the
National Council of State Legislatures, and the American Civil
Liberties Union, have expressed concerns regarding the degree to which
some of the provisions in this amendment would infringe on the powers
traditionally exercised by the States to set standards in the area of
driver's licenses, for example. Therefore, I would like to suggest to
the Senator that we continue working on these issues to see if we can
resolve some of these concerns and that we set this amendment aside for
the time being to allow for that.
Mr. McCAIN. I thank the manager. At this time I will not be proposing
a further amendment.
Mr. REID. Mr. President, if I could get the attention of the manager
of the bill.
The PRESIDING OFFICER. Does the Senator from Maine yield the floor?
Ms. COLLINS. I yield the floor temporarily.
Mr. REID. Mr. President, we have a number of Members in and out of
the Chamber who want to know when they can offer amendments and/or
speak. Senator Cornyn is here, Senator Feinstein, Senator Lautenberg is
here. I wonder if at least for these three can we get a queue set up so
they will know when they can be expected to speak.
Ms. COLLINS. Mr. President, I suggest, based on the conversations I
have had with all who are present in the Senate now, we first yield to
the Senator from California, who is going to discuss her proposal while
we are continuing to work at the staff level on the language of her
amendment; that we then go to the Senator from Texas, who has two
amendments he would like to discuss--again, we are still working with
the Senator from Texas--and we then proceed to the amendment Senator
Lautenberg has proposed.
Mr. REID. If I could be recognized to further this dialog, I wonder
if we could then have a consent agreement that the Senator from
California be recognized for 10 minutes, the Senator from Texas be
recognized on his two amendments for no more than 15 minutes, and the
Senator from New Jersey would be recognized after that.
I ask unanimous consent that the Senator from California be
recognized for 10 minutes; following that, the Senator from Texas be
recognized for 15 minutes; and Senator Lautenberg be recognized for 15
minutes to offer his amendment.
Ms. COLLINS. Mr. President, that unanimous consent agreement would
work well from my perspective.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. COLLINS. We will now then go to the Senator from California.
The PRESIDING OFFICER. The Senator from California.
Amendment No. 3718
Mrs. FEINSTEIN. Mr. President, I thank the chairman and ranking
member of the committee. I have indicated I am withdrawing one
amendment, No. 3719, which clarifies the tactical intelligence part of
the bill. I don't believe that is necessary. It has been withdrawn. I
am also withdrawing amendment No. 3715 to strike the prohibition on co-
location.
At this time I call up and then set aside amendment No. 3718.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from California [Mrs. Feinstein] proposes an
amendment numbered 3718.
Mrs. FEINSTEIN. I ask unanimous consent the reading of the amendment
be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To improve the intelligence functions of the Federal Bureau
of Investigation)
On page 4, line 4, insert ``foreign intelligence'' after
``means''.
On page 4, strike lines 5 through 16 and insert the
following:
(2) The term ``foreign intelligence'' means information
gathered, and activities conducted, relating to the
capabilities, intentions, or activities of foreign
governments or elements thereof, foreign organizations, or
foreign persons, or international terrorist activities.
(3) The term ``counterintelligence'' means--
(A) foreign intelligence gathered, and activities
conducted, to protect against espionage, other intelligence
activities, sabotage, or assassinations conducted by or on
behalf of foreign governments or elements thereof, foreign
organizations, or foreign persons, or international terrorist
activities; and
(B) information gathered, and activities conducted, to
prevent the interference by or disruption of foreign
intelligence activities of the United States by foreign
government or elements thereof, foreign organizations, or
foreign persons, or international terrorists.
On page 6, line 12, strike ``counterintelligence or''.
[[Page S10012]]
On page 7, beginning on line 5, strike ``the Office of
Intelligence of the Federal Bureau of Investigation'' and
insert ``the Directorate of Intelligence of the Federal
Bureau of Investigation''.
On page 8, between lines 6 and 7, insert the following:
(8) The term ``counterespionage'' means counterintelligence
designed to detect, destroy, neutralize, exploit, or prevent
espionage activities though identification, penetration,
deception, and prosecution (in accordance with the criminal
law) of individuals, groups, or organizations conducting, or
suspected of conducting, espionage activities.
(9) The term ``intelligence operation'' means activities
conducted to facilitate the gathering of foreign intelligence
or the conduct of covert action (as that term is defined in
section 503(e) of the National Security Act of 1947 (50
U.S.C. 413b(e)).
(10) The term ``collection and analysis requirements''
means any subject, whether general or specific, upon which
there is a need for the collection of intelligence
information or the production of intelligence.
(11) The term ``collection and analysis tasking'' means the
assignment or direction of an individual or activity to
perform in a specified way to achieve an intelligence
objective or goal.
(12) The term ``certified intelligence officer'' means a
professional employee of an element of the intelligence
community engaged in intelligence activities who meets
standards and qualifications set by the National Intelligence
Director.
On page 120, beginning on line 17, strike ``, subject to
the direction and control of the President,''.
On page 123, between lines 6 and 7, insert the following:
(e) Discharge of Improvements.--(1) The Director of the
Federal Bureau of Investigation shall carry out subsections
(b) through (d) through the Executive Assistant Director of
the Federal Bureau of Investigation for Intelligence or such
other official as the Director of the Federal Bureau of
Investigation designates as the head of the Directorate of
Intelligence of the Federal Bureau of Investigation.
(2) The Director of the Federal Bureau of Investigation
shall carry out subsections (b) through (d) under the joint
direction, supervision, and control of the Attorney General
and the National Intelligence Director.
(3) The Director of the Federal Bureau of Investigation
shall report to both the Attorney General and the National
Intelligence Director regarding the activities of the Federal
Bureau of Investigation under subsections (b) through (d).
On page 123, line 7, strike ``(e)'' and insert ``(f)''.
On page 123, line 17, strike ``(f)'' and insert ``(g)''.
On page 126, between lines 20 and 21, insert the following:
SEC. 206. DIRECTORATE OF INTELLIGENCE OF THE FEDERAL BUREAU
OF INVESTIGATION.
(a) Directorate of Intelligence of Federal Bureau of
Investigation.--The element of the Federal Bureau of
Investigation known as of the date of the enactment of this
Act is hereby redesignated as the Directorate of Intelligence
of the Federal Bureau of Investigation.
(b) Head of Directorate.--The head of the Directorate of
Intelligence shall be the Executive Assistant Director of the
Federal Bureau of Investigation for Intelligence or such
other official within the Federal Bureau of Investigation as
the Director of the Federal Bureau of Investigation shall
designate.
(c) Responsibilities.--The Directorate of Intelligence
shall be responsible for the following:
(1) The discharge by the Federal Bureau of Investigation of
all national intelligence programs, projects, and activities
of the Bureau.
(2) The discharge by the Bureau of the requirements in
section 105B of the National Security Act of 1947 (50 U.S.C.
403-5b).
(3) The oversight of Bureau field intelligence operations.
(4) Human source development and management by the Bureau.
(5) Collection by the Bureau against nationally-determined
intelligence requirements.
(6) Language services.
(7) Strategic analysis.
(8) Intelligence program and budget management.
(9) The intelligence workforce.
(10) Any other responsibilities specified by the Director
of the Federal Bureau of Investigation or specified by law.
(d) Staff.--The Directorate of Intelligence shall consist
of such staff as the Director of the Federal Bureau of
Investigation considers appropriate for the activities of the
Directorate.
Mrs. FEINSTEIN. I reiterate my strong support for this bill and the
balance that has been struck by the committee in the drafting of this
bill. It strikes the right balance. I am pleased to be an original
cosponsor.
In my remarks on Monday, I mentioned I was going to be submitting an
amendment concerning the relationship between the FBI foreign
intelligence functions and the national intelligence director. I thank
both the majority and the ranking member staff for working with my
staff to work out this amendment. It will be worked out and it will be
the chairman's intent to present this amendment for unanimous consent.
However, I will clearly state the intent of the amendment. The FBI
functions as part of the intelligence community in the gathering,
analyzing, and disseminating of information about the plans,
intentions, and capabilities of our foreign enemies, including, most
importantly, counter-terrorists. That effort, in my view, should be
under the overall supervision of the national intelligence director.
Let me be clear, though, this amendment does not mean the national
intelligence director should run or control operations inside the
United States. When the FBI, under the operational control of the FBI
director and the Attorney General, works as a foreign intelligence
agency, it should do so as part of that community under the general
guidance of the national intelligence director.
An excellent example of this issue is now part of the extensive
record of structural intelligence failure prior to the September 11
attacks, the way the intelligence community handled, or I should say
mishandled, the so-called Phoenix document information and the
Moussaoui information. Here we had in two different places FBI agents
acquiring factual information which is of clear foreign intelligence
value: that foreign individuals, associated with foreign terrorist
organizations, may have been learning to fly passenger planes. At the
very same time, the rest of the intelligence community had information
that al-Qaida was preparing to strike against the United States and
also that there had been past consideration of the use of airplanes in
an attack methodology.
Putting together these two disparate pieces of information is the
business of an effective intelligence community. But it did not happen,
in part, I believe, because the FBI part of the communication was not
linked up with the Central Intelligence Agency and the National
Security Agency parts of the community.
The bill before the Senate goes far toward remedying this by placing
the FBI foreign intelligence elements under the overall supervision of
the national intelligence director. I am concerned the bill presently
contains ambiguities that, if left in, will cause confusion in the
future. That is because the bill incorporates, with no change, current
law which defines the role of the FBI intelligence activities. However,
that law is confusing, it is internally inconsistent, and I believe it
is the source of many of the problems which beset the FBI as part of
the intelligence community.
This amendment does three basic things to fix this. I want the record
to reflect that. It clarifies critical definitions in the law. It makes
a small alteration in the current law to make clear that the term of
art ``counterintelligence'' is a subset of foreign intelligence, not an
alternative to foreign intelligence.
Second, it makes clear that when the FBI is engaged in law
enforcement, it is not part of the national intelligence program or
under the NID supervision, but removes the word ``counterintelligence''
from this so-called carve-out language. This is critical because this
language in existing law was the confusing foundation upon which much
of the wall between the FBI and the rest of the intelligence community
was built.
This amendment creates a directorate of intelligence in the FBI. As
written presently, the bill places the activities of the Office of
Intelligence of the FBI clearly within the national intelligence
program. This is good, but because the Office of Intelligence has no
statutory basis, it could be rendered useless in the future if that
office is removed or changed by a future FBI director.
This amendment renames the office the Directorate of Intelligence and
gives it a clear basis in law.
Finally, this amendment introduces some clarifying language to ensure
that the section governing ``FBI improvements'' is read to ensure that
these improvements come as part of a larger, coordinated effort, led by
the national intelligence director to improve the standards and
practices of the entire intelligence community.
It does this by ensuring that the FBI Director's improvement program
is
[[Page S10013]]
guided by the national intelligence director. And it defines a
``certified intelligence officer''--that is a term introduced for the
first time in the underlying bill--to make sure that ``certification''
means meeting intelligence community standards, developed by the
national intelligence director.
The bottom line is that the FBI's intelligence functions must be part
of a larger effort, guided by a strong leader, and linked carefully
with all the other agencies and Departments in the intelligence
community.
There are still two parts of this amendment that are being worked out
by staff. I appreciate their hard work very much and thank them. I also
would like to thank the chair and the ranking member for their
cooperation. I am very hopeful this amendment can later be adopted by
unanimous consent.
I thank the Chair.
Mr. President, I ask unanimous consent that amendment No. 3718 be set
aside for the present time.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. FEINSTEIN. I yield the floor.
The PRESIDING OFFICER. The Senator from Texas is recognized.
Mr. CORNYN. Mr. President, I thank both managers of the bill, the
chairman of the Governmental Affairs Committee and the ranking member,
Senator Lieberman, for the great work they are doing on this bill. I
know it is not easy, but it is vital that we achieve the kinds of
reforms the 9/11 Commission and the Senate Select Committee on
Intelligence and others, over the years, have said would help make our
Nation stronger.
Yesterday, I proposed an amendment to this bill which dealt with a
relatively narrow area but one I think is certainly relevant to what
the 9/11 Commission recommended and, indeed, to the ultimate purpose of
making America a safer place. Unfortunately, it is one that tends to be
overlooked. That does not have to do with our physical security,
potential cause of death and injury to the American people on our own
soil but, rather, a body blow to our economic security.
Indeed, one of the consequences of 9/11 was not just the terrible
loss of life and injury but also the disruption to our economy, which
resulted in chaos and many people being laid off work because of the
economic disruption.
This amendment had to do with cyber-security. I know it is something
we do not think about very much but, indeed, now that we are so
dependent upon computers for our way of life, to enhance our
productivity, to communicate with one another, to do business, we
somehow perhaps take for granted that they will always be secure. And
particularly when it comes to our water utilities, our communications
systems, our transportation systems, and financial networks, there is a
very real danger that cyber-terrorists, those who would try to attack
and dismantle and disrupt our financial, transportation,
communications, and utility networks could wreak a terrible blow to the
American economy.
Now, my interest in this subject dates back several years to when I
convened a panel in Texas, the State Infrastructure Protection Advisory
Committee, as attorney general. We met hundreds of hours with both
private and public sector participants, as well as people in the
academic community, to try to figure out what we could do, No. 1, to
identify what the problem was, and what we could do to make it better.
Well, what we found is that in many instances because of liability
concerns, because of concerns about trying to achieve and maintain
public confidence in one's business or product, that the private sector
was much better prepared than the Government was for cyber-attacks.
I am pleased to say that Congress has begun to work to address this
critical need for security in our computer networks by passing the
Federal Information Security Management Act, or FISMA. Its purpose is
to improve the information security of our computer networks and
support Federal agencies by requiring top-to-bottom agency planning for
information security and compliance with mandatory standards and
benchmarks developed by the National Institute of Standards and
Technology.
FISMA also requires Federal agencies to conduct an annual evaluation
of their computer security programs and to submit an effectiveness
report to the Office of Management and Budget, the OMB.
For several years, the House Government Reform Subcommittee, chaired
by Congressman Adam Putnam, the Technology, Information Policy,
Intergovernmental Relations and the Census Subcommittee, has been
working with the General Accounting Office to produce a report card for
24 Federal agencies to see how well they are complying with
congressional intent as expressed in FISMA, the Federal Information
Security Management Act.
What I would like to show you, Mr. President and my colleagues, is
the report card that has been generated because I think it is
indicative of the problems we have had and, indeed, the problems we
still have, and how modest our improvement has been.
Indeed, you can see from this chart showing the Federal computer
security report card, issued on December 9, 2003, that overall
Governmentwide, Government agencies, when it came to security of their
computer systems, got a D, not a grade any one of us would be proud to
take home. But I must say, as bad as a D is, in 2003, it is better than
the F that many agencies got in 2002, before Congress began to get
involved in trying to upgrade the security of our computer networks.
But you can see, some of these agencies have improved from an F to a
D. Indeed, the Department of Defense in 2002 had an F. In 2003, it got
a D. The Small Business Administration went from an F to a C-. But we
have some--the Department of the Interior, the Department of
Agriculture, the Department of Housing and Urban Development, the
Department of State--that in 2002 got an F and in 2003 got an F.
So I am not sure Congress is as successful as we should be or as we
would like to be in getting the attention of the people who work in
those agencies and who should be committed to carrying out this
information security provision and protecting our Government computer
systems from the potential of cyber-attack and the potential disruption
to our economy.
But I want to say in conclusion on that matter how much I appreciate
the willingness of the Senator from Maine, the distinguished chair of
the Governmental Affairs Committee, and the Senator from Connecticut,
the distinguished ranking member of that committee, to work with us and
consider this amendment and, indeed, to agree that the amendment should
go forward because I think this is an easily overlooked but,
nevertheless, a very important part of our security.
Mr. President, I have two other amendments that have not yet been
filed that I will obviously not call up but I would like to just
preview for my colleagues. I have talked, also, to the chairman of the
bill and the ranking member. We are going to continue to work with them
and their staffs to try to make sure these matters can be worked out,
if that is at all possible, much in the same manner we worked out this
cyber-security provision.
These matters have to do with other recommendations of the 9/11
Commission. Here again, the job that is before us is vast, indeed, as
reflected by the 41 different recommendations of the 9/11 Commission
and the need for intelligence reform reflected in the bill before us.
But perhaps it is because of the perspective I have as a Senator from
the State of Texas, which has the longest border of any State with the
country of Mexico--and, of course, beyond Mexico on to Central America
and South America--the source of many concerns relative to human
smuggling and to enforcement of our immigration and other laws related
to those issues.
First, we intend to offer an amendment to increase the penalties that
can be assessed upon a successful prosecution for the crime of human
smuggling. As the 9/11 Commission said: There is evidence to suggest
that, since 1999, human smugglers have facilitated the travel of
terrorists associated with more than a dozen extremist groups and that
human smugglers clearly have the credentials necessary to aid terrorist
travel. They also noted that many countries, because of their lack of
security, make human smuggling an attractive avenue for terrorists in
need of travel facilitation.
[[Page S10014]]
In terms of our southern border, Under Secretary of the Department of
Homeland Security Asa Hutchinson has told me and others that there is
no documented instance of a terrorist actually coming across our
southern border, but the truth is, it is very porous. If the motivation
is high enough and the price is right, the same person who can be
smuggled across the border for economic reasons because they want to
come to work in this country outside of our laws, someone from a
country other than Mexico, perhaps an Islamic extremist, somebody who
wanted to take advantage of that porous border would, indeed, hire a
human smuggler to bring them across our southern border into the United
States and do us harm.
It is important that our Federal policy and our criminal laws reflect
both the strongest possible concern about this issue and express the
will of Congress that human smugglers will be punished in a way
commensurate with the threat they pose to the American people.
The truth is, we cannot ignore this issue and believe that it is just
related to people who want to come here and work. Money talks. And
where human smugglers exist, they will go to the highest bidder to
deliver their services in a way that could indeed deliver terrorists on
to our soil. That relates to one amendment on which we will continue to
work with the distinguished chairman and ranking member and their
staffs to see if we can work out an agreement.
The next amendment relates to another provision in the 9/11
Commission report. The Commission, under the subheading ``Immigration
Law and Enforcement,'' said:
There is a growing role for state and local law enforcement
agencies. They need more training and work with federal
agencies so they can cooperate more effectively with those
federal authorities in identifying terrorist suspects.
Again, on page 383 of the 9/11 Commission report, the Commission
said:
The challenge for national security in an age of terrorism
is to prevent the very few people who may pose overwhelming
risks from entering or remaining in the United States
undetected.
This amendment, which we intend to file and call up later--and we
will continue to work with the managers of the bill on it--has to do
with the authority of State and local law enforcement authorities to
detain a certain narrow class of persons who are illegally in the
country. Those relate to what I would think are three noncontroversial
categories: Those who are absconders--in other words, 80,000 felons who
are in the country illegally and running from justice. We don't have
the capacity to know exactly where they are now because we have,
unfortunately, ignored the crisis in our immigration enforcement for
many years.
Indeed, more than that, there are approximately, according to some
guesses, between 300,000 and 400,000 people under final orders of
deportation in the United States, and we simply don't have the Federal
authorities sufficient to locate them and enforce final orders of
deportation.
This bill would narrowly address those who are under final orders of
removal, those who have signed voluntary departure agreements, and
those who have revoked visas. It would not, as some previous
legislation that has been filed both here and in the House, offer an
opportunity for local and State law enforcement officials to enforce a
whole broad range of our immigration laws. This relates to a narrow
group who are absconders from justice, including convicted felons and
others, and reaffirms the authority of State and local law enforcement
both to enforce those violations in the normal course of carrying out
their duties and will make sure that we get the army of additional law
enforcement authorities to assist the current Federal authorities who
are mainly located along our border region when it comes to our border
security and homeland security interests.
Finally, this bill would direct the Department of Homeland Security
to take custody within 48 hours of these persons so detained by State
or local officials or else pay the locality to detain these particular
class of aliens. Currently, the process is that once someone has been
identified and perhaps detained for a violation of one of a host of our
immigration laws, the common practice is to tell them to come back for
a future hearing for deportation. It is no surprise to any of us that
about 90 percent of them melt into the landscape and are never heard
from again.
Simply put, we need to have law enforcement authorities at all
levels--national, State, and local--join forces, as the 9/11 Commission
recommended, to deal with this certain narrow class of people who are
under final orders of deportation from our country, those who have
signed voluntary departure agreements, and those who have had their
visas revoked. These are people who have exercised any right they may
have to due process and should have no further recourse.
I look forward to working with the manager and the ranking member and
their staffs to try to see if we can work this out.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Mr. President, I thank the Senator from Texas for his
comments. We look forward to working with him on his two additional
amendments. We were pleased to be able to pass his first amendment to
this bill last night. We appreciate his cooperation.
In consultation with the Senator from Nevada, the Democratic whip, I
ask unanimous consent that the consent request previously entered into
be a
