Congressional Record: October 1, 2004 (Senate)
Page S10197-S10252
[[Page S10197]]
NATIONAL INTELLIGENCE REFORM ACT OF 2004
The PRESIDENT pro tempore. Under the previous order, the Senate will
resume consideration of S. 2845, which the clerk will report.
The legislative clerk read as follows:
A bill (S. 2845) to reform the intelligence community and
the intelligence and intelligence-related activities of the
United States Government, and for other purposes.
Pending:
Collins Amendment No. 3705, to provide for homeland
security grant coordination and simplification.
Lautenberg Amendment No. 3767, to specify that the National
Intelligence Director shall serve for one or more terms of up
to 5 years each.
Kyl Amendment No. 3801, to modify the privacy and civil
liberties oversight.
McCain/Lieberman Amendment No. 3807, to develop a strategy
for combining terrorist travel intelligence, operations, and
law enforcement.
Feinstein Amendment No. 3718, to improve the intelligence
functions of the Federal Bureau of Investigation.
Stevens Amendment No. 3839, to strike section 201, relating
to public disclosure of intelligence funding.
Ensign Amendment No. 3819, to require the Secretary of
State to increase the number of consular officers, clarify
the responsibilities and functions of consular officers, and
require the Secretary of Homeland Security to increase the
number of border patrol agents and customs enforcement
investigators.
Reid (for Schumer) Amendment No. 3887, to amend the Foreign
Intelligence Surveillance Act of 1978 to cover individuals,
other than United States persons, who engage in international
terrorism without affiliation with an international terrorist
group.
Reid (for Schumer) Amendment No. 3888, to establish the
United States Homeland Security Signal Corps to ensure proper
communications between law enforcement agencies.
Reid (for Schumer) Amendment No. 3889, to establish a
National Commission on the United States-Saudi Arabia
Relationship.
Reid (for Schumer) Amendment No. 3890, to improve the
security of hazardous materials transported by truck.
Reid (for Schumer) Amendment No. 3891, to improve rail
security.
Reid (for Schumer) Amendment No. 3892, to strengthen border
security.
Reid (for Schumer) Amendment No. 3893, to require
inspection of cargo at ports in the United States.
Reid (for Schumer) Amendment No. 3894, to amend the
Homeland Security Act of 2002 to enhance cybersecurity.
The PRESIDENT pro tempore. The Senator from Maine.
Ms. COLLINS. Mr. President, I suggest the absence of a quorum.
The PRESIDENT pro tempore. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. ALLARD. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDENT pro tempore. Without objection, it is so ordered.
Amendment No. 3765
Mr. ALLARD. Mr. President, my understanding is that there is a
pending amendment before the Senate; is that correct?
The PRESIDENT pro tempore. The Senator is correct. There are several.
Mr. ALLARD. I ask unanimous consent that the pending amendments be
set aside, and I call up amendment No. 3765.
The PRESIDENT pro tempore. Without objection, it is so ordered.
The clerk will report.
The legislative clerk read as follows:
The Senator from Colorado [Mr. Allard] proposes an
amendment numbered 3765.
Mr. ALLARD. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDENT pro tempore. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To provide for additional responsibilities for the Chief
Information Officer of the Department of Homeland Security relating to
geographic information)
At the appropriate place, insert the following:
SEC. __. HOMELAND SECURITY GEOGRAPHIC INFORMATION.
(a) Findings.--Congress finds that--
(1) geographic technologies and geographic data improve
government capabilities to detect, plan, prepare, and respond
to disasters in order to save lives and protect property;
(2) geographic data improves the ability of information
technology applications and systems to enhance public
security in a cost-effective manner; and
(3) geographic information preparedness in the United
States, and specifically in the Department of Homeland
Security, is insufficient because of--
(A) inadequate geographic data compatibility;
(B) insufficient geographic data sharing; and
(C) technology interoperability barriers.
(b) Homeland Security Geographic Information.--Section 703
of the Homeland Security Act of 2002 (6 U.S.C. 343) is
amended--
(1) by inserting ``(a) In General.--'' before ``The Chief
Information''; and
(2) by adding at the end the following:
``(b) Geographic Information Functions.--
``(1) Definition.--In this subsection, the term `geographic
information' means the information systems that involve
locational data, such as maps or other geospatial information
resources.
``(2) Office of geospatial management.--
``(A) Establishment.--The Office of Geospatial Management
is established within the Office of the Chief Information
Officer.
``(B) Geospatial information officer.--
``(i) Appointment.--The Office of Geospatial Management
shall be administered by the Geospatial Information Officer,
who shall be appointed by the Secretary and serve under the
direction of the Chief Information Officer.
``(ii) Functions.--The Geospatial Information Officer shall
assist the Chief Information Officer in carrying out all
functions under this section and in coordinating the
geographic information needs of the Department.
``(C) Coordination of geographic information.--The Chief
Information Officer shall establish and carry out a program
to provide for the efficient use of geographic information,
which shall include--
``(i) providing such geographic information as may be
necessary to implement the critical infrastructure protection
programs;
``(ii) providing leadership and coordination in meeting the
geographic information requirements of those responsible for
planning, prevention, mitigation, assessment and response to
emergencies, critical infrastructure protection, and other
functions of the Department; and
``(iii) coordinating with users of geographic information
within the Department to assure interoperability and prevent
unnecessary duplication.
``(D) Responsibilities.--In carrying out this subsection,
the responsibilities of the Chief Information Officer shall
include--
``(i) coordinating the geographic information needs and
activities of the Department;
``(ii) implementing standards, as adopted by the Director
of the Office of Management and Budget under the processes
established under section 216 of the E-Government Act of 2002
(44 U.S.C. 3501 note), to facilitate the interoperability of
geographic information pertaining to homeland security among
all users of such information within--
``(I) the Department;
``(II) State and local government; and
``(III) the private sector;
``(iii) coordinating with the Federal Geographic Data
Committee and carrying out the responsibilities of the
Department pursuant to Office of Management and Budget
Circular A-16 and Executive Order 12906; and
``(iv) making recommendations to the Secretary and the
Executive Director of the Office for State and Local
Government Coordination and Preparedness on awarding grants
to--
``(I) fund the creation of geographic data; and
``(II) execute information sharing agreements regarding
geographic data with State, local, and tribal governments.
``(3) Authorization of appropriations.--There are
authorized to be appropriated such sums as may be necessary
to carry out this subsection for each fiscal year.''.
Mr. ALLARD. Mr. President, to briefly explain the amendment, it
provides additional responsibilities for the Chief Information Officer,
Department of Homeland Security, relating to geographic information.
This amendment has been discussed by both managers, the Senator from
Maine and the Senator from Connecticut. My understanding is the
amendment has been agreed to.
The PRESIDENT pro tempore. The Senator from Maine.
Ms. COLLINS. Mr. President, I commend the Senator from Colorado for
the work that he has done in coordinating the geospatial information
needs of the Department of Homeland Security. He first introduced a
bill on this issue last year. He has been a leader in pushing for
improvements in how this information is handled. This legislation was
recently reported as a separate bill by the Governmental Affairs
Committee. It is acceptable and cleared on both sides. I urge adoption
of the amendment.
The PRESIDENT pro tempore. Is there further debate? Without
objection, the amendment is agreed to.
The amendment (No. 3765) was agreed to.
The PRESIDENT pro tempore. The Senator from Colorado.
Mr. ALLARD. Mr. President, I rise today to discuss the Collins-
Lieberman bill. Later I will have another amendment that I will offer.
First, I thank the managers of the bill, Senator Collins and Senator
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Lieberman, for their efforts in getting at least one of my amendments
accepted. The other is pending. One involves the Department of Homeland
Security and its ability to detect, plan, and prepare for disaster by
better utilizing geospatial data throughout the U.S. Government. I
thank both of them for that support.
The other amendment assures that the national intelligence director
will take action to ensure that commercial satellite imagery is used to
fulfill the imagery information requirements of the intelligence
community. Both are important to the ongoing safety and security of the
country. I am pleased to see the adoption of one, and further
consideration of the other.
In a moment I would like to offer a third amendment to strengthen the
bill regarding management of the intelligence community workforce.
Before I offer my amendment, I would like to talk generally about the
overall intelligence reform legislation.
September 11, 2001, was a day that none of us will forget in our
lifetimes. Mr. President, 9/11 was a harsh wake-up call for our
country. That catastrophic day forced us to recognize new threats and
to energize our Government to rise up and eliminate terror threats and
modernize our national security institutions. Our Government has moved
quickly and comprehensively to implement a significant body of
governmental reforms.
It is a fact that through hard work and strong leadership, President
Bush's administration has already implemented planning of significant
improvements to our Government's intelligence planning and operations.
Of the 39 recommendations from the 9/11 Commission that the President
could legally implement through Executive order, only three remain to
be addressed. It is a good idea, as we consider reforms to our
intelligence community, to review again what the 9/11 Commission
concluded.
The 9/11 Commission primarily found that, first, we were slow to
respond to a clear and emerging threat. For far too long we stood still
while extremist radical Muslims hijacked religion to stir up hatred,
hijacked a country to operate their base camps from, and hijacked our
airliners to murder more than 3,000 of our fellow Americans.
Second, we had inadequate human intelligence assets around the world
to observe such threats and effectively warn us of impending dangers.
Third, for the intelligence we did get, we lacked an effective
bureaucracy to integrate disparate but related pieces of information,
and we lacked a strong quarterback to coordinate intelligence programs
against emerging threats, to plan long-term strategies, or to steer a
change of course when the situation dictated.
Fourth, our military was not adequately prepared to deal with the
threat that day. And last and maybe most importantly, we need new tools
and strategies for our diplomatic corps to reach out and lead troubled
regions of the world against terrorism's misguided principles and
cowardly acts. We need transformational military improvements to engage
where and when our diplomacy does not succeed.
The 9/11 Commission also fashioned more than three dozen
recommendations to address these national security shortfalls. I
applaud the effort of the chairman and ranking member of the
Governmental Affairs Committee in developing the proposals before us
today. I agree with the majority of the initiatives in the intelligence
reform legislation. The Collins-Lieberman bill will improve our ability
to develop actionable intelligence and increase our Government's
coordination and responsiveness. Elevating the roles and
responsibilities of today's Director of Central Intelligence to the
level of a national intelligence director, including the robust
planning and budgeting authority, is prudent and much needed.
Establishment of strategic intelligence planning and fusion centers
such as the national counterterrorism center will also greatly
strengthen our national security team's ability to connect the dots. We
need to identify trends, anticipate threats, and develop coordinated
plans to attack threats prior to their realization.
However, I am not convinced we are effectively matching solutions to
identify problems in all cases. My concerns are heightened because
today we are a nation at war. Our men and women of the Armed Forces and
the intelligence community are in harm's way. I am just not certain
that we have thought through adequately the management changes or the
unintended consequences relative to Defense Department operations. I
will follow closely the remainder of the debate to understand better
the potential adverse effects prior to voting to support them.
I am pleased to see the attention focused by the 9/11 Commission
Report and the Collins-Lieberman bill on the topic of personnel
management policies and practices across the intelligence community.
Both panels recognize that in order to effect such a magnitude of
change in our Federal Government, uniform personnel standards and
training are needed to align individual mindsets with the desired
objectives.
Our national security requirements demand that we recruit and retain
the best and the brightest defense and intelligence personnel our
country has to offer.
We need to ensure the National Intelligence Director is armed with
both authority and flexibility to enforce only the highest performance
and ethical standards across the intelligence community. This requires
modern personnel management policies and regulations that incorporate
competitive compensation, incentives, and supervisory flexibility.
To keep pace with the dynamic work environment of the intelligence
community, these same supervisors require streamlined dismissal or
termination mechanisms for personnel failing to satisfy standards.
The bill before us today directs specific authorities and changes to
performance compensation and incentives across the national
intelligence program. Section 163 explicitly grants the National
Intelligence Director authorities governing new National Intelligence
Authority employees that mirror the authority held by the Director of
Central Intelligence Agency relative to CIA employees.
In section 301, the bill goes on to amplify the CIA Director's
authority to terminate employees ``. . . whenever the Director
considers the termination of employment of such officer or employee
necessary or advisable in the interests of the United States.''
This is clear, unequivocal, and prudent authority that will bolster
our intelligence leaders' personnel management capabilities. But I
believe we need to go further.
Amendment No. 3778
Mr. President, at this time, I ask unanimous consent that we lay
aside the pending amendment and that the clerk report amendment No.
3778, which is at the desk.
The PRESIDENT pro tempore. Without objection, the pending amendment
is set aside.
The clerk will report.
The legislative clerk read as follows:
The Senator from Colorado [Mr. Allard] proposes an
amendment numbered 3778.
The amendment is as follows:
(Purpose: To improve the management of the personnel of the National
Intelligence Authority)
On page 113, between lines 17 and 18, insert the following:
(b) Termination of Employees.--(1) Notwithstanding any
other provision of law, the National Intelligence Director
may, in the discretion of the Director, terminate the
employment of any officer or employee of the National
Intelligence Authority whenever the Director considers the
termination of employment of such officer or employee
necessary or advisable in the interests of the United States.
(2) Any termination of employment of an officer or employee
under paragraph (1) shall not affect the right of the officer
or employee to seek or accept employment in any other
department, agency, or element of the United States
Government if declared eligible for such employment by the
Office of Personnel Management.
On page 113, line 18, strike ``(b) Rights and Protections''
and insert ``(c) Other Rights and Protections''.
On page 113, after line 24, add the following:
(d) Exclusion from Certain Personnel Management
Requirements.--
(1) Performance appraisals.--Section 4301(1)(ii) of title
5, United States Code, is amended by inserting ``the National
Intelligence Authority,'' before ``the Central Intelligence
Agency,''.
(2) Labor-management relations.--Section 7103(a)(3) of that
title is amended--
(A) in subparagraph (G), by striking ``or'' at the end;
(B) in subparagraph (H), by striking the period at the end
and inserting a semicolon; and
[[Page S10199]]
(C) by adding at the end the following new subparagraphs:
``(I) the National Intelligence Authority;
``(J) the Defense Intelligence Agency;
``(K) the National Geospatial-Intelligence Agency; or
``(L) any other Executive agency or unit thereof which is
designated by the President and the principal function of
which is the conduct of foreign intelligence or
counterintelligence activities.''.
(e) Regulations.--(1) In carrying out the responsibilities
and authorities specified in sections 112 and 113 and this
section (including the amendments made by this section), the
National Intelligence Director shall prescribe regulations
regarding the management of personnel of the National
Intelligence Authority.
(2) The regulations shall include provisions relating to
the following:
(A) The applicability to the personnel of the Authority of
the authorities referred to in subsection (a).
(B) The exercise of the authority under subsection (b) to
terminate officers and employees of the Authority.
Mr. ALLARD. Mr. President, my amendment will accomplish the
following: first, expressly grant this termination authority to the
National Intelligence Director in the statute; and second, direct the
National Intelligence Director to prescribe regulations specifying the
exercise of this termination authority.
Notwithstanding this broad authority already in place today, the
Director of Central Intelligence maintains regulations that are
inefficient, not appropriate for today's security environment, and are
out of sync with his broad authority. For example, an intelligence
supervisor who deems an officer or employee as unsuitable is often
required to maintain that employee in sensitive positions while adverse
personnel action is initiated.
After a final termination decision is rendered by the agency, the
employee can engage in a lengthy appeals process, both internal and
external to the agency, that could last at least a year. In my opinion,
this practice is not in the best interest of the United States, and
indeed presents a clear security risk.
With regulations requiring streamlined employee termination
practices, I believe we can improve national security and fiscal
responsibility across the National Intelligence Authority. My amendment
would enhance this responsibility, and I urge my colleagues to support
my amendment.
Mr. President, the Chair and Ranking Members, indeed all Members of
the Government Affairs Committee, have served our country well. The
Collins-Lieberman bill for intelligence reform brings forth bold and
sweeping changes to our critical national security institutions.
Accordingly, it is essential that we get this right. More is at stake
than simply moving boxes around on an organization chart. The decisions
we make over the next several days will be far-reaching and have
significant consequences. Our Armed Forces are not only the largest
provider of intelligence information, they are also the largest
consumer. Our Nation's military, the most powerful and proficient ever
assembled in the history of the world, hinges on a seamless and
unbroken flow of intelligence information--regardless of whether that
intelligence information is ``national'' or ``tactical.''
As we consider the Collins-Lieberman intelligence reform bill, let us
redouble our efforts to ensure we're matching solutions to identified
problems. As long as we keep this perspective, I am confident this body
will do the right thing.
Mr. President, I yield floor.
The PRESIDENT pro tempore. The Senator from Maine is recognized.
Ms. COLLINS. Mr. President, I thank the Senator from Colorado for his
generous comments. I very much enjoy working with him on the Armed
Services Committee. He brings a great deal of expertise to this debate.
The amendment he has proposed this morning is one that our staffs are
starting to look at. I suggest that it be set aside so that we can do
more analysis of it, but I appreciate the spirit in which it was
offered.
The PRESIDENT pro tempore. Is there objection to setting aside this
amendment? The amendment is set aside.
Who seeks recognition?
Mr. LIEBERMAN. Mr. President, I thank the Senator for his statements
about the Collins-Lieberman legislation and also thank him for the
amendment. This looks to be exactly like the legislation the Senator
and Senator Akaka introduced, which came out of our committee. This is
the right moment, and it strengthens the bill. I thank him for his
persistence in offering it. I am glad we added it.
I yield the floor.
Mr. ALLARD. I thank the managers for their kind comments.
The PRESIDENT pro tempore. The Senator from Tennessee is recognized.
Mr. ALEXANDER. Mr. President, this morning, I want to take a few
minutes to talk about an amendment that was adopted yesterday. It was
sponsored by the Senator from Ohio, Mr. Voinovich.
The amendment is about the 3,361 Presidential appointees and how they
are confirmed. I am glad to see that as I am speaking the President pro
tempore is here because he has been a Presidential appointee in an
earlier administration. I am glad to see both the chairman and ranking
member of the Governmental Affairs Committee here because their
committee deals with this issue. This is the kind of issue that never
makes the front page and is always on the back burner. But it has a
major practical effect on how our Government works.
The 9/11 Commission has reminded us, once again, of the problem we
have. What the 9/11 Commission recommended, and what Senator
Voinovich's amendment would do--an amendment that I was glad to
cosponsor--is to, in the words of the 9/11 Commission--``speed up the
nomination, financial reporting, security clearances, and confirmation
process for national security officials at the start of an
administration.''
In other words, in plain English, to make it possible, if President
Bush reorganizes his administration in a second term, or if Senator
Kerry is the new President, they have 3,361 appointments to make. I
think it would come as a great shock to many of the voters who are
voting for one of them, and it will come as a shock, no doubt, to some
of the people they nominate to know that if, for example, a President
Bush or a President Kerry picks a new Secretary of HHS or Secretary of
Education or Secretary of Defense, to begin with, that person is not
allowed to go to the office of the Secretary of Defense or the
Secretary of HHS or the Secretary of Education until he or she is
confirmed by the Senate.
In other words, here we are in a war on terror. The President says he
has a new appointment requiring Presidential confirmation, let's say
for Secretary of State. That person is not allowed, out of courtesy to
this body, to go into the office of the Secretary of State until we
confirm them. One might say, well, there is nothing so wrong about
that. That should not take more than a few days, with the kind of well-
known person the President would probably pick--someone, for example,
of the stature of Colin Powell.
I will give you an example of why it takes longer than a few days.
The Presiding Officer, the Senator from Connecticut, the Senator from
Maine, all of us remember and know well Senator Howard Baker, who was
the majority leader of this body. Senator Baker, at one time, if memory
serves me correctly, was selected as the most admired Senator in a poll
participated in by both Democratic Senators and Republican Senators. He
is known pretty well. He is today the Ambassador to Japan, nominated by
President Bush. The Japanese consider that to be a great compliment to
the country, to have someone of such stature.
However, Howard Baker reminded me this week when I called him that
when he was nominated by the President to be Ambassador to Japan, it
took him weeks to fill out the forms to be approved by the FBI,
approved by the Government Ethics Office, nominated by the President,
and confirmed by the Senate. He told me specifically that he spent more
money hiring people to help him fill out his forms accurately so he
would not go to jail by making a mistake than he made in his first year
as Ambassador to Japan.
Let's think of that. Here is a highly respected individual, at the
time 75 or 76 years old. He has been filling out forms for 18 years as
a Member of this body. He has run for President. He has been White
House Chief of Staff. He is the most admired Senator. Yet by our
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requirements it takes several weeks of his time, and he spends more
money hiring people to fill out his forms than he made in his first
year in his Government job.
That is preposterous. That is a preposterous result.
He further told me he had another little issue with the Government
Ethics Office. Senator Baker is now married to former Senator Nancy
Kassebaum. It is the second marriage for both. When they became
married, they wanted to keep their estates separate. They jointly owned
25 head of cattle. This tied up Senator Baker's nomination for some
time in the Government Ethics Office because the question was jointly
owning 25 head of cattle would require--just that single fact--Senator
Kassebaum to have to go through this week-long, very expensive process
of disclosing everything once more about herself and filling out all
those forms.
Finally, in exasperation, Senator Baker simply gave his half interest
in the 25 head of cattle to Senator Kassebaum, and that settled that
problem.
This is not so unusual. Senator Baker and Senator Kassebaum are not
the only Presidential nominees to go through the expense and delay of
being appointed to a Presidential position.
I was nominated by the first President Bush as his Education
Secretary. I was nominated in December of 1990. I was confirmed in I
believe it was April of 1991. In the meantime, I was not allowed to go
to the Office of the Secretary of Education.
During that time, 60 percent of American college students were going
to colleges and universities followed by a Federal grant or a loan.
That is supposed to be supervised by the Secretary of Education of a
President who said he wanted to be the education President. Yet his
nominee is not allowed to go to the office, out of courtesy to this
body.
Then, of course, there is the matter of recruiting a team. I asked
President Bush at that time: Mr. President, may I come up with a plan?
May I then recruit a team, subject to your approval, of course? So I
went to recruit David Kearns, the former head of Xerox, and Diane
Ravage, one of the most distinguished historians in America, Carolyn
Reed Wallace, the vice chancellor of the City University of New York.
All of them, of course, were not allowed to go to their office. Once
the President nominates and before they are confirmed, they must fill
out all these forms, maybe not spend as much money as Senator Baker
did, but the same forms. They must go through this elaborate FBI check.
They must go through the President's political process, and then they
come over here. And if there is a divided body--for example, we have a
Republican President and a Democratic Senate--it takes a little longer.
What is the point of all this? The point of all this is we cannot get
our work done. The voters all tune in to a Presidential debate, such as
we saw last night--two distinguished competitors, both doing pretty
well, I thought--they take off in January and say: Let's go this way
and what happens? There is nobody to work for them. They cannot even go
to their offices. They are all down here filling out forms that are
going to cost them more than they make in their first year.
This is a problem. Who is at fault? A lot of places are at fault.
Partisan politics is sometimes at fault. When I was going through
confirmation, I went around to see another former Member of this body,
Senator Warren Rudman. He told me what happened in 1976. He was
nominated by President Ford to the Federal Communications Commission, I
believe, and a Senator from New Hampshire put a hold on his nomination.
It went along that way until the people of New Hampshire said: What
is wrong with Warren Rudman? He must be a crook, he must have stolen
something or else the Senate would be acting on his nomination. Out of
embarrassment, Warren Rudman, a private citizen, asked President Ford
to withdraw his name from consideration in the Senate. Then Senator
Rudman ran against the Senator who put a hold on his name, defeated
him, and served in this body.
I am not sure we can pass any law or change any rule that will
prevent that kind of partisan politics, but we should be aware that is
part of the problem.
Senator Voinovich's amendment does address some areas we can fix. One
is there may be too many jobs subject to this kind of intensive review.
Mr. President, 3,361 is a lot of Presidential appointments to have to
go through that time-consuming, weeks-long process. It is too many jobs
to leave vacant at the beginning of a new administration when we all
expect a new President to come in and say: Let's go in this direction.
It is too many jobs to leave vacant, the 9/11 Commission said,
especially when we are dealing with the national security of the United
States, and a great many of those men and women are people we are
relying upon to protect us.
The FBI review takes a long time. Maybe that could be simplified. If
they are doing 3,361 FBI reviews at one time and the FBI's major goal
is supposed to be counterterrorism, maybe that is something we should
be looking at as well.
Then we get busy. An example exists today, and this is in no way
criticism, but it is an example of how we get busy. The President on
May 20 nominated Edwin Williamson to be Director of the Office of
Ethics for our Government. This is the very office that contributes to
a lot of the questions and reviews that slow down the process. That was
May 20. His hearing before the full committee is next week.
Everyone in the Senate can understand the Governmental Affairs
Committee has been busy the last 8 weeks, but, nevertheless, we have a
process that when we get busy, sometimes we contribute to the delay.
So the Voinovich amendment does not by itself solve the problem. It
sets in motion a series of reviews and studies and discussions that
might help solve the problem.
The reason for my coming to the floor today is to say to the
distinguished Senator from Connecticut and to the distinguished Senator
from Maine, and the President pro tempore, I hope we keep this high
enough on our agenda that it does not slip to the back page again.
Former Senator Fred Thompson prepared legislation on this issue. This
is a lot like many of the issues that have come up with national
intelligence reform. There have been about 30 or so reviews since World
War II on national intelligence reform, and they often slip to the back
pages, to the back burner, and we do not get it done.
This time we are getting it done. We have also taken steps on another
so-called back-burner issue, as the 9/11 Commission put it and that is,
speeding up the nomination--financial reporting, security clearances,
and confirmation process for officials nominated by the President at
the start of an administration. It is my hope that over the next year,
the reviews mentioned in the Voinovich amendment will go forward, that
we will simplify the process. Of course, for the national security
officials, we can all see the urgent need for that.
Of course, we do not want them sitting outside their offices next
February out of courtesy to us when there is some attack on the United
States that they might have helped prevent, but at the same time we do
not want students going to college with some Secretary of Education
sitting outside his office not allowed to go in. We do not want Head
Start dollars being spent with some Secretary of Health and Human
Services sitting outside her offices not allowed to go in. We need to
have firm deadlines and firm dates, simplified forms, out of respect to
the people the President nominates, out of respect to the voters who
expect a President to be able to act, and out of respect to ourselves.
There will occasionally be a nominee--we are not talking about
judicial nominees--there will occasionally be one of the 3,361
executive nominations where this is a problem, that requires an
extended debate--and we are fully capable of doing that in the Senate--
but the rest of the nominations ought to speed through on a fairly
automatic, simplified review, allowing the executive branch to be in a
position to see urgent needs, develop a strategy, and try to persuade
half of us that he is right, which is the job of the President.
I thank the managers of the bill for this time. I applaud them for
their bipartisan action on this bill and their work on the committee. I
am glad they adopted the amendment yesterday, and I look forward to
working with them
[[Page S10201]]
over the next several months to see that it does not slide back to the
back burner and get lost so that men of the stature of Howard Baker
have to spend more than they earn in their first year in Government
filling out the forms we require of them even though we have known them
and known everything about them for 25 years.
I yield the floor.
The PRESIDENT pro tempore. The Senator from Connecticut.
Mr. LIEBERMAN. Mr. President, I rise first to thank the Senator from
Tennessee for taking the time to come to the Senate floor to express
his thoughts, which he has talked to Senator Collins and me about
earlier. I admire his focus on this area as well as the work and focus
of the Senator from Ohio, Mr. Voinovich.
The fact is that this is one of those aspects of governmental process
and procedure that never gets much public attention but has great
consequences for the public, and in this case it is relevant to the
underlying bill for national security. There is not much political plus
in making this a matter one focuses on in the sense that it does not
get headlines, but it is a critically important matter because, as the
Senator says so well and eloquently, the delay caused in confirming the
nominees has an effect on the quality of public service, in fact has an
effect on the content of national security if people cannot be put into
the positions where they are needed early enough.
So I thank the Senator. I encourage the Senator--although I probably
do not have to--to stay aggressive, to make sure that not only the
amendment the Senator from Tennessee and the Senator from Ohio
sponsored yesterday that was adopted on the bill is put into place but,
more generally, to make sure we fix this.
The Senator from Tennessee has some great anecdotes, too. It is
pretty startling to have heard that Howard Baker, a great former Member
of this body, spent more time filling out the forms, hiring people to
help him fill out the forms, to be Ambassador to Japan than he was
going to receive as a salary for the first year of his service. That
ought not to happen. Obviously, one of the things that also does, which
the Senator knows and has spoken to, is discourage people who may not
have the resources to pay for that kind of consultation from going into
public service where we need them.
I thank my friend from Tennessee.
I rise briefly to speak in support of the--Mr. President, I am going
to hold this statement, which is of a timeless nature, so I can deliver
it, I am sure, at any point in the day where there may be a lull. This
time was devoted to Senator Byrd to offer an amendment. I did not
realize he was here. I welcome him to the Chamber and look forward to
hearing his statement.
The PRESIDENT pro tempore. The Senator from West Virginia.
Mr. BYRD. Mr. President, I ask unanimous consent to offer an
amendment that affects the bill in more than one place. I have cleared
this with the two managers.
The PRESIDENT pro tempore. Is there objection to the request?
Without objection, it is so ordered
Amendment No. 3845
Mr. BYRD. Mr. President, I call up amendment No. 3845.
The PRESIDENT pro tempore. Without objection, the pending amendment
is set aside.
The clerk will report.
The assistant legislative clerk read as follows:
The Senator from West Virginia [Mr. Byrd], for himself, Mr.
Stevens, Mr. Inouye, Mr. Warner, Mr. Harkin and Mr. Johnson,
proposes an amendment numbered 3845.
Mr. BYRD. Mr. President, I ask unanimous consent that the reading of
the amendment be dispensed with.
The PRESIDENT pro tempore. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To enhance the role of Congress in the oversight of the
intelligence and intelligence-related activities of the United States
Government)
On page 10, between lines 16 and 17, insert the following:
(d) Removal.--The National Intelligence Director may be
removed from office by the President. The President shall
communicate to each House of Congress the reasons for the
removal of a National Intelligence Director from office.
On page 10, line 17, strike ``(d)'' and insert ``(e)''.
On page 11, line 3, strike ``(e)'' and insert ``(f)''.
On page 11, line 5, strike ``subsection (c)'' and insert
``subsection (e)''.
On page 22, line 11, strike ``(f) and (g)'' and insert
``(e), (f), and (g)''.
On page 24, beginning on line 1, strike ``, pursuant to
subsection (e),''.
On page 24, strike line 8 and all that follows through age
25, line 20.
On page 25, line 21, strike ``(f)'' and insert ``(e)''.
On page 27, strike line 1 and all that follows through page
30, line 22, and insert the following:
(f) Role of National Intelligence Director in
Reprogramming.--(1) No funds made available under the
National Intelligence Program may be transferred or
reprogrammed without the prior approval of the National
Intelligence Director, except in accordance with procedures
prescribed by the National Intelligence Director.
(2) The Secretary of Defense shall consult with the
National Intelligence Director before transferring or
reprogramming funds made available under the Joint Military
Intelligence Program.
(g) Transfer of Funds or Personnel Within National
Intelligence Program.--(1) In addition to any other
authorities available under law for such purposes, the
National Intelligence Director, with the approval of the
Director of the Office of Management and Budget--
(A) may transfer funds appropriated for a program within
the National Intelligence Program to another such program;
and
(B) in accordance with procedures to be developed by the
National Intelligence Director, the heads of the departments
and agencies concerned may transfer personnel authorized for
an element of the intelligence community to another such
element for periods up to one year.
(2) The amounts available for transfer in the National
Intelligence Program in any given fiscal year, and the terms
and conditions governing such transfers, are subject to the
provisions of annual appropriations Acts and this subsection.
(3)(A) A transfer of funds or personnel may be made under
this subsection only if--
(i) the funds or personnel are being transferred to an
activity that is a higher priority intelligence activity;
(ii) the need for funds or personnel for such activity is
based on unforeseen requirements;
(iii) the transfer does not involve a transfer of funds to
the Reserve for Contingencies of the National Intelligence
Director;
(iv) in the case of a transfer of funds, the transfer
results in a cumulative transfer of funds out of any
department, agency, or element, as appropriate, funded in the
National Intelligence Program in a single fiscal year--
(I) that is less than $100,000,000; and
(II) that is less than 5 percent of amounts available to
such department, agency, or element; and
(v) the transfer does not terminate a program.
(B) A transfer may be made without regard to a limitation
set forth in clause (iv) or (v) of subparagraph (A) if the
transfer has the concurrence of the head of the department,
agency, or element concerned. The authority to provide such
concurrence may only be delegated by the head of the
department, agency, or element concerned to the deputy of
such officer.
(4) Funds transferred under this subsection shall remain
available for the same period as the appropriations account
to which transferred.
(5) Any transfer of funds under this subsection shall be
carried out in accordance with existing procedures applicable
to reprogramming notifications for the appropriate
congressional committees. Any proposed transfer for which
notice is given to the appropriate congressional committees
shall be accompanied by a report explaining the nature of the
proposed transfer and how it satisfies the requirements of
this subsection. In addition, the congressional intelligence
committees shall be promptly notified of any transfer of
funds made pursuant to this subsection in any case in which
the transfer would not have otherwise required reprogramming
notification under procedures in effect as of the date of the
enactment of this subsection.
(6)(A) The National Intelligence Director shall promptly
submit a report on any transfer of personnel under this
subsection to--
(i) the congressional intelligence committees;
(ii) the Committee on Appropriations of the Senate and the
Committee on Appropriations of the House of Representatives;
(iii) in the case of the transfer of personnel to or from
the Department of Defense, the Committee on Armed Services of
the Senate and the Committee on Armed Services of the House
of Representatives; and
(iv) in the case of the transfer of personnel to or from
the Department of Justice, to the Committees on the Judiciary
of the Senate and the House of Representatives.
(B) The Director shall include in any such report an
explanation of the nature of the transfer and how it
satisfies the requirements of this subsection.
On page 47, line 19, insert before the period the following
``, by and with the advice and consent of the Senate''.
On page 53, line 2, insert before the period the following
``, by and with the advice and consent of the Senate''.
On page 55, beginning on line 5, strike ``the National
Intelligence Director'' and insert
[[Page S10202]]
``the President, by and with the advice and consent of the
Senate''.
On page 60, beginning on line 14, strike ``appropriately''.
On page 61, line 11, insert ``and Congress'' after
``Director''.
On page 61, line 21, strike ``significant''.
On page 63, line 16, insert ``and the congressional
intelligence committees'' after ``National Intelligence
Director''.
On page 138, beginning on line 21, strike ``and to
Congress'' and insert ``, to the Select Committee on
Intelligence and the Committees on Appropriations and
Governmental Affairs of the Senate, and to the Permanent
Select Committee on Intelligence and the Committees on
Appropriations and Government Reform of the House of
Representatives''.
On page 140, strike lines 5 through 14 and insert the
following:
(2) Deputy director of management and budget for
information sharing.--There is within the Office of
Management and Budget a Deputy Director of Management and
Budget for Information Sharing who shall be appointed by the
President, by and with the advice and consent of the Senate.
The Deputy Director shall carry out the day-to-day duties of
the Director specified in this section. The Deputy Director
shall report directly to the Director of the Office of
Management and Budget. The Deputy Director shall be paid at
On page 174, strike lines 14 through 22.
Mr. BYRD. Mr. President, I ask unanimous consent that the following
Senators be added as cosponsors of my amendment: Senators Stevens,
Inouye, Warner, Harkin, and Johnson.
The PRESIDENT pro tempore. Without objection, it is so ordered.
Mr. BYRD. Mr. President, first, I express my appreciation to the two
managers for their courtesies that they never fail to extend. I also
want to express my appreciation to the distinguished President pro
tempore who is in the chair this morning, Senator Stevens, my soulmate
on the Appropriations Committee.
In 2001, we witnessed the failure of our Government to utilize its
intelligence capabilities to protect our Nation against a terrorist
attack. For too long, the Congress has deferred to the executive branch
on intelligence matters. Congress has failed to vigorously discharge
its constitutional oversight responsibilities. I do not say that by way
of finding fault with any Senator.
The 9/11 Commission illustrated the dangers of this practice. The
consequence has been foreign policy failures, prison scandals,
politicized intelligence that has led not only to a desperate state of
affairs in Iraq but has also left our Nation vulnerable to further
terrorist attacks. It is painfully clear that there are dire
consequences when the Congress abdicates its constitutional duties to
oversee the intelligence agencies within the executive branch.
Senators need to be reminded--I need to be reminded as well--that the
Congress is a consumer of intelligence. Senators must have access to
good intelligence to make informed decisions about our military, about
our foreign policy, about the solemn charge to authorize war, and that
remains a constitutional function, authorization of war.
I am sorry to say I did not hear anybody in last night's debate on
either side mention the Constitution of the United States, not once.
The Constitution gives Congress alone the power to declare war or
authorize war. The Congress must ensure that it is fully and currently
informed of all matters that may bear on the exercise of that
constitutional authority. Senators ought to be cautious about
intelligence reforms and ensure that the role of the Congress in
intelligence matters is not undermined. Reform means fixing what has
gone wrong, not giving the executive branch more authority to conduct
end runs around the Congress.
When I speak of the executive branch, I speak generically, both when
it is under Democratic control and Republican control. We must ensure
that the top national security officials specified in this bill are
subject to Senate confirmation so that they are held accountable to the
elected representatives of the people.
The first three words in the preamble of the Constitution are, ``We
the people. . . .'' ``We the people. . . .'' And yet, I say, that
Constitution was not mentioned once last night.
We must ensure that Senators have access to information necessary to
fulfill their Constitutional duties. We must ensure that the Congress
does not codify loopholes through which the executive can deny the
Congress relevant information. Perhaps most importantly, we must ensure
that funds appropriated by the Congress cannot be rerouted without the
consent of the people's representatives in Congress.
The Governmental Affairs Committee has ensured accountability to the
Congress in many of these areas, but I believe more can be done.
This is an amendment which I have proposed, along with Senators
Stevens, Inouye, Warner, Harkin, and Johnson to remove the qualifiers
on Congressional access to information, to ensure that the Congress's
role in intelligence matters is preserved, and to ensure that the
American people are protected.
This amendment requires Senate confirmation of the following
positions within the National Intelligence Authority and the Office of
Management and Budget: four deputy national intelligence directors, the
Officer for Civil Rights and Liberties, the Privacy Officer, and the
Deputy Director of OMB for Information Sharing. It is vital that the
Congress have access to these officials and be able to hold them
accountable for their decisions, particularly in the area of civil
liberties.
To further that goal, my amendment requires that the Inspector
General of the National Intelligence Authority keep the congressional
intelligence committees fully and currently informed of violations of
law and civil liberties.
However, the greatest protection against abuse within the
intelligence agencies is to monitor closely their budgets. The Congress
should jealously guard its power of the purse, and, to do that, I have
worked with Senators Stevens and Inouye to ensure that the authorities
granted to the national intelligence director to transfer personnel and
funding within the National Intelligence Program closely reflect
current law.
Our amendment strikes language authorizing the Treasury Secretary to
establish new budget accounts for the use of the national intelligence
director. This is a function of the Congress, which has the authority
to determine how accounts should be constructed to fund our national
intelligence.
My amendment allows the national intelligence director, with the
approval of the OMB Director, to transfer appropriated funds within the
National Intelligence Program, and the heads of the departments and
agencies to transfer personnel within the intelligence community for
periods up to 1 year, under the following conditions:
A transfer of funds or personnel may be made only to an activity that
is a higher priority; and unforeseen requirement; but not to the
Reserve for Contingencies of the national intelligence director. The
cumulative transfer in a single fiscal year must be less than $100
million and less than 5 percent of amounts available to such
department, agency, or element; and the transfer of funds cannot
terminate a program.
A transfer may be made without regard to the $100 million and 5
percent limitation if the transfer has the concurrence of the head of
the department, agency, or entity concerned--provided, always, that the
transfer conforms with the strict limitations set by the Congress each
year in its annual appropriations acts.
Funds transferred shall remain available for the same period as the
appropriations account to which transferred; and any transfer of funds
or personnel shall be reported to the appropriate congressional
committees, such as Appropriations, Judiciary, Armed Services, and
Intelligence.
I am confident that if these qualifications are adhered to, the power
of the purse will continue to rest safely in the hands of the people's
elected representatives.
In addition, Senators should take note of Section 224(b)(3) of the
pending bill, which would permit the national intelligence director,
the Director of the National Counterterrorism Center, or the Director
of a national intelligence center to withhold information requested by
the Congress if the President certifies that such information will not
be provided because the President is asserting a privilege pursuant to
the United States Constitution.
It is unclear exactly which privilege the President would invoke,
but, given the vague language contained in this provision, a bold and
impulsive administration, much like the one currently
[[Page S10203]]
inhabiting the White House, could concoct nearly any excuse to invoke a
so-called ``privilege'' to withhold documents requested by the
Congress. Giving any administration an unrestrained green light to
trump any and all forthcoming Congressional requests for information,
based on some undefined and nefarious assertion of executive privilege
as described in this provision, would be an unmitigated disaster. My
amendment strikes that egregious language.
It is my hope, as well as the hope of my colleagues who cosponsored
this measure with me, that this amendment will ensure that the
Congress's Constitutional role in intelligence and foreign policy
matters is safeguarded.
However, Senators should understand that the statutory authority to
oversee our intelligence community means very little if it is not
utilized. We must be vigilant in our oversight. We must be aggressive
in our inquiries. We must not abdicate our Constitutional duties.
I urge the adoption of my amendment.
I yield the floor.
The PRESIDING OFFICER (Mr. Chambliss). The Senator from Connecticut.
Mr. LIEBERMAN. Mr. President, needless to say, I thank the Senator
from West Virginia, whom, as does everyone in the Chamber, I greatly
admire. He is a real authority on this matter, so I speak both with
respect and a certain sense of humility.
This recommendation that Senator Collins and I and our committee
brought before the Senate rose out of reality. And the reality is that
we have an intelligence community with a lot of extraordinary people
and technological assets but, as the 9/11 Commission said, there is no
one in charge. I repeat, it is like a football team with great players
but no quarterback. In fact, some of the players, as great as they are,
are playing in a different stadium than the one where the game is.
The 9/11 Commission has said to us that its foremost goal, the most
urgent recommendation it makes to the Congress for what to do if we
want to believe that we have done everything we can to prevent a
terrorist attack of the scope of 9/11 from happening in this country
again, is to create--establish a strong national intelligence director,
a leader where there is no leader, a quarterback where there is no
quarterback. That is what Senator Collins and I have done in our
proposal.
A strong national director--but what is the element of strength? It
is budget authority. It is the power to bring together the agencies
under the director for a unity of effort, like the joint commands in
our military which grew out of Goldwater-Nichols, after a period of
time and a lot of opposition when they were first considered on the
floor, not dissimilar to some of the opposition and anxiety that has
been expressed about the national intelligence director in our time.
They worked extremely well.
So we have created a strong director with budget authority to
formulate budgets, to receive funds, to allocate them--with
justification, not wantonly; to transfer budget, transfer funds to meet
an emergency; to transfer personnel to achieve a national purpose.
In our deliberations in the Governmental Affairs Committee we see
warning after warning that if you are going to do this right, you have
to give this national intelligence director real power.
In this morning's paper, the Washington Post, Friday, October 1, an
article by Charles Babington quotes from a press conference I presume
by the Chair and Cochair of the 9/11 Commission, Governor Kean, former
Republican Governor of New Jersey, and Congressman Hamilton, former
Democratic Congressman from Indiana. Governor Kean says at one point,
the story says:
Governor Kean meanwhile spoke sharply against House
provisions and proposed Senate amendments that would limit
the national intelligence director's authority over spending
and personnel decisions in agencies under them.
It goes on to say:
The House bill will keep more of that power in the
Pentagon.
Then Governor Kean says:
On behalf of the nonpartisan commission, this is not an
area where one can compromise. If you are not going to create
a strong national intelligence director with powers both
appointive and over the budget, don't do it.
I repeat:
If you are not going to create a strong national
intelligence director with powers both appointive and over
the budget, don't do it.
That is the advice we heard over and over again from former Directors
of Central Intelligence, from experts in the field, from members of the
Commission.
I say respectfully that the amendment which Senator Byrd and the
distinguished list of cosponsors put before us this morning would have
the effect of weakening the authority of the national intelligence
director and, therefore, bring us back to the place where we were,
where there wasn't a strong quarterback, where there wasn't a strong
general, if you will, of our intelligence forces in the war against
terrorism.
As I read it, it strikes the section that establishes accounts for
the national intelligence program funds under the jurisdiction of the
national intelligence director, and the national intelligence director
would control the management, including the allotment of appropriated
funds to the elements of the intelligence community.
I would like to have some discussion on this. But as I read one of
the two parts of this which strike me as most troubling, it is the part
that seems to say that our attempt in this bill--our clear intention
stated in the bill--is to make sure that strange situation we have
where 80 percent of the funding for intelligence, billions and billions
of dollars, goes not to the intelligence community first but to the
Department of Defense. The Department of Defense is a critical--in some
sense, the largest--customer of intelligence, but it is not the only
customer. The President of the United States is the No. 1 customer. The
Department of State, the Department of Homeland Security, FBI--one
could go on and on--they are also important users of intelligence.
We have said that the funds of the national intelligence program
budget should go to the national intelligence director and give that
person the authority that comes with the money to allocate those funds
throughout the agencies underneath him, and give him thereby some clout
to create unity of effort, to bring people together, to overcome the
weaknesses.
As the 9/11 Commission Report describes it--and Senator Collins and I
keep telling the story--George Tenet, former Director of Central
Intelligence, in 1998, after a series of al-Qaida attacks on Americans
and American targets abroad, declares war on terrorism. It was a
classified document within the intelligence community and it is now
public. It states the case very strongly. It says we have to devote all
of our resources to it, and nothing happened.
Senator Byrd is a great student of the Bible. I so appreciate it. He
brought it with him to the Senate floor yesterday. I take this
opportunity to quote from the Bible. Perhaps it was from Corinthians.
``If the sound of the trumpet be uncertain, who will follow into
battle?''
My worry here is that in this case, the trumpet is money. If the
authority of the national intelligence director over the funds is
uncertain, then I worry that the troops are not going to follow them
into battle just as they didn't follow George Tenet when they declared
war or terrorists and terrorism in 1998. We might have even been better
off and maybe even have avoided 9/11 if something had happened in
response to that.
This amendment seems to say that the money we want to go to the
national intelligence director can't because in our attempt to
establish accounts, we now, in this act of Congress--Senator Byrd is
absolutely right, this is a congressional decision, but we are offering
our colleagues that decision, which is to set up those accounts in the
Treasury Department for the national intelligence director so that
director can receive the funds and then allocate them.
Second, the two elements of authority for the national intelligence
director as the general of our intelligence forces are to transfer
personnel and funds. I appreciate the fact that this amendment does not
take away that authority, and when Senator Collins and I started out,
we worried people
[[Page S10204]]
would resist that authority altogether in the national intelligence
director. So I appreciate that. But it does limit the authority of the
director to transfer personnel and money in a way that I think weakens
the director and undercuts the purpose we want and the reasons we want
them to be powerful, to give this intelligence force the flexibility to
focus, the agility to respond to realities in the world.
These terrorists are not only brutal, not only inhumane, not only
don't value human life, not only convince themselves zealously that
they are doing God's work by killing God's children wantonly, but they
are agile. They will look for weaknesses in the system and move to
attack. That is why the national intelligence director has to have the
ability to move money quickly. It may be that there is a crisis area
somewhere or a new kind of threat to the United States and the director
decides he has to move funds to meet that threat.
This is not an authority that is unlimited or even beyond the control
of the law today. Our bill makes sure that there is congressional
oversight on the transfer of the funds. The amendment would limit the
transfer of funds. It would have to be less than $100 million and less
than 5 percent of the budget of the entity from which the money is
being transferred unless the relevant department head concurs in the
transfer.
I want to assure the Chamber and Senator Byrd that our amendment,
though it does not put those limits on the transfer because we don't
know what kind of threat may emerge and where the national intelligence
director may feel in the national interest he wants to move those
funds, makes sure there is congressional oversight. It provides that
any transfer of funds by the national intelligence director must be
carried out in accordance with the existing congressional notification
procedures. Congress still has the right to approve.
Moreover, the national intelligence director is required to submit a
report to the appropriate committees of Congress explaining the nature
of the transfer and how it meets the relevant statutory requirements.
Finally, our bill also requires that any transfer of funds or
personnel not exceed applicable ceilings established in law for such.
This means that while we are setting the standard for the national
intelligence director, Congress each year as it adopts the budget
reserves the right to put instructions in that. I might oppose it, but
it includes the possibility of limiting the transfers, as has happened
in the past. We wanted to make sure--in some sense to reassure
ourselves and our appropriators--that this bill says that any transfer
of funds or personnel would not exceed applicable ceilings established
in law for such transfers.
We want to provide the national intelligence director with the
necessary flexibility and force to respond with speed to a crisis, and
not establish, therefore, permanent caps on this legislation that might
hinder the director's ability to make those changes that are necessary.
Under the current system, the DCI lacks budget power. DOD controls 80
percent of the intelligence budget, whereas the director of central
intelligence effectively only controls a budget of one agency, the CIA.
Secretary Powell commented on this current reality at our hearing on
September 13, 2004, by saying:
The DCI was there before but the DCI did not have that kind
of authority, and in this town it's budget authority that
counts.
Chairman Kean and Vice Chairman Hamilton said in their testimony at
our first hearing on July 30:
The national intelligence director would not be like other
czars who get the title but have no meaningful authority. He
will control national intelligence program purse strings.
For those reasons, respectfully, this amendment would seriously
weaken the authority of the national intelligence director, and
therefore, I believe, the director's ability to protect our national
security in an age of terrorism.
I yield the floor.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Mr. President, before I comment on the specifics of the
amendment of the Senator from West Virginia, let me join Senator
Lieberman in expressing the utmost respect that I have for the Senator
from West Virginia. His devotion to the Constitution, to the Senate, to
the country, and to his family is truly legendary. I have learned so
much just from watching the Senator from West Virginia. In fact, he
inspired me to get a copy of the Constitution, and while I don't carry
it with me as he does, I have it in my briefcase. It was his example
that inspired me to do that.
Like Senator Lieberman, I have, nevertheless, many concerns about the
pending amendment. In drafting our bill, we made very clear the
authority that the new national intelligence director would have. We
did not want to simply create another layer of bureaucracy. What we
wanted to do is to empower the NID with significant budget personnel,
standard-setting authority, so that this individual could make a
difference.
I remember in the testimony before our committee the consensus among
the witnesses was that in order for the NID to be effective, strong
authority was absolutely critical. Indeed, the assistant DCI for
community management said it very forthrightly. He testified as
follows:
We must be flexible in shifting people and money to respond
to emerging priorities. Today's intelligence budget system
does not meet this criteria.
Senator Byrd's amendment imposes significant restrictions on the
ability of NID to transfer personnel and to transfer funds. That
concerns me greatly.
Under the Collins-Lieberman bill, with OMB approval, the NID may
transfer or reprogram funds appropriated for a program within the
national intelligence budget to another program. The NID is required to
consult with the heads of the affected agencies prior to implementing
such a reprogramming or transfer, but our bill does not require their
approval. We make very clear that the reprogramming and transferring
approvals and restrictions as far as congressional authority are
included in our bill, as well.
If we require the concurrence of the agency heads before personnel or
money can be moved around, we essentially have made no improvement in
the current system. That is not progress. In fact, it is exactly the
problem the 9/11 Commission identified over and over again as a major
flaw in the current system.
The NID needs to be able to marshal the people, the funds, and the
resources necessary to counter the threats we face. That is the bottom
line.
The current authorities for the DCI are insufficient because they
permit agencies to prevent the DCI from transferring funds or people
simply by objective. That is what we need to change.
I am also concerned about making additional positions created by this
bill subject to Senate confirmation. The privacy and civil rights
officers at the Department of Homeland Security are not Senate-
confirmed positions. I see no reason for treating the privacy and civil
rights officers that would be created by this bill any differently.
There is another point that I make about the restrictions in the
Senator's amendments on reprogramming and transfer authority. That is,
if we are going to impose these kinds of restrictions, we are not
improving the system in any significant way, and we are allowing the
long delays that plague the current system to continue.
Acting CIA Director John McLaughlin told me it can take as long as 5
months for him to reprogram funds. In the threat environment we face
today, we cannot afford a 5-month delay in transferring urgently needed
funds to counter the threat we face.
The amendment of the Senator from West Virginia would represent a
significant weakening of the authority in this bill, and I urge my
colleagues to oppose it.
The PRESIDING OFFICER (Mrs. Dole). The Senator from West Virginia.
Mr. BYRD. Walt Whitman said:
A man is a great thing upon the Earth, and through
eternity--but every jot of greatness of man is unfolded out
of woman.
So let me pay tribute to our Presiding Officer at this moment.
Madam President, I have the utmost respect for the two managers of
this bill. I have the utmost respect for their
[[Page S10205]]
dedication and for the knowledge which they bring to bear upon this
subject. I am not a member of the committee that has jurisdiction over
the legislation before the Senate. So I salute them and tip my hat to
them and bow to them.
So what I say is certainly in no fashion, in no way or form any
criticism of them. They are doing the best they can do.
But the Constitution of the United States still lives. It still
governs. Let's read this paragraph from section 9 of the U.S.
Constitution:
No money shall be drawn from the Treasury, but in
Consequence of Appropriations made by Law; and a regular
Statement and Account of the Receipts and Expenditures of all
public Money shall be published from time to time.
Let these words sink in:
. . . and a regular Statement and Account of the Receipts and
Expenditures of all public Money shall be published from time
to time.
We have to keep that provision in mind.
The amendment I have offered today simply ensures that the national
intelligence director spends money in accordance with the annual
appropriations bills. It provides the flexibility that the director may
require but limits that flexibility to the laws passed by Congress and
to the knowledge that there is this provision:
. . . a regular Statement and Account of the Receipts and
Expenditures of all public money--
``All public money.''
. . . all public money shall be published from time to time.
We cannot allow this national intelligence director to spend the
people's tax dollars without restraint, without some limitation,
without some restraint. A $40 billion blank check? We cannot allow the
national intelligence director to spend money without regard to
Congress. There must be some limitations on his spending authority.
Without this amendment, the intelligence director, and not the
Congress, will determine how certain appropriated moneys are spent. We
must not remove all limitations on this new intelligence director. If
we yield the power of the purse to this new intelligence director, then
we have only limited means to rein him in if there are abuses of power.
My amendment limits the transfer of appropriations to $100 million
and even allows the Department heads to waive that limitation as long
as it is consistent with appropriations law. That, it seems to me,
should be more than enough flexibility. We must retain some limitation.
The intelligence director must not be allowed to write his own
appropriations bill. That would elevate him above the Congress. That
will elevate him, an intelligence director, above the people's elected
representatives in Congress.
We talk about the trumpet that gives an uncertain sound. Yes. How can
we be certain as to what we are doing when we are rushed and pressured
into passing legislation as major as this legislation in such a limited
time, which is hours? We are being pressured to pass this legislation
before we adjourn sine die. This is massive legislation. It is far-
reaching legislation. The Congress should not have to operate under a
hammer, as we are being driven here.
Henry Kissinger came before the Appropriations Committee when Senator
Stevens held those hearings. I compliment my chairman, Mr. Stevens, on
having those hearings. Henry Kissinger, a man with vast experience,
vast knowledge, advised us not to pass this gargantuan measure in such
a hurry and under such pressure and during a Presidential campaign.
I say to my colleagues, we ought not bend to the lash of the whip on
the part of the leadership, on the part of the administration, on the
part of anyone else. We should take more time. We do not know what we
are doing here. I am seeking to protect the people's representatives
and the Congress from making what could be a major mistake.
We were rushed into passing legislation creating a Department of
Homeland Security, were we not? I tried to get more time. I tried to
get the leadership on both sides to listen. They would not listen. Now
we find that there are major problems with that Department.
On that fateful occasion on October 11, when the Senate voted to
shift the constitutional power to declare war from the Congress--not
just one body of Congress, but both bodies of Congress--to one man, oh,
what a terrible mistake that was, what a terrible error. We were told:
Let's get it behind us. Let's get it behind us. Let's get it behind us.
The idea was to get that legislation passed before that election. So
the Senate passed that legislation in a hurry, on October 11 of that
year.
Oh, we will always rue that day that the Senate bent to the urgings
of the leadership, which said: Let's get it behind us. We have not
gotten it behind us. We did not get it behind us. I said at the time we
would not get it behind us. I said at the time that the President, Mr.
Bush, would not let us get it behind us. That was what he wanted. He
wanted the Senate to bend in that critical hour before an election so
that the Senators who voted on that measure would be somehow conscious
that there was an election down the road, and particularly those who
were running would be under the whiplash of an election.
Oh, what a terrible mistake. I felt so ashamed. For the first time in
my 46 years in this Senate, I felt ashamed that the Senate was
knuckling under to the executive branch and making a mistake which is
rued to this day and will be rued to the end of time. That blotch upon
the escutcheon of this great body, the first time in my 46 years that I
was ashamed, this Senate stood mute. It stood bowed. It was
intimidated.
And we can make another mistake if we go and rush in too big a hurry.
We are doing a big thing here. I do not set myself up as anyone who has
the vast knowledge that Mr. Lieberman has or that Ms. Collins has over
this subject matter. I am not on that committee. But I do know when we
are being pressured to act in too big a hurry. This is a big bill. Why
can't we wait until after the first of the year? Why can't we wait
until a new Congress, perhaps with a new President--who knows?--a new
Chief Executive? Why can't we wait and do the job right? This is a job
that we ought to do right and not do it under the gun.
I do not know what is in this bill. I am not on the committee. I do
not know what is in this bill. I do not claim to know what is in the
bill. But I tell you, we must not remove all limitations on this new
intelligence director. Why, this man is going to be God when it comes
to appropriations and legislation and matters affecting the people.
This is the perfect example of how we are rushing through this
intelligence bill without fully understanding what we are doing. I do
not understand what we are doing, and I need to understand what we are
doing. To properly represent the people from West Virginia, I need to
understand what we are doing.
Now, fortunately, I have a good colleague on the Intelligence
Committee, Senator Rockefeller. But I tell you, we are dealing with
matters that go to the heart--the heart--of a free government.
Englishmen spilled their blood for centuries to wield the power of
the purse away from monarchs in England. They shed their blood,
yes, going all the way back to the Magna Carta, the great charter, in
1215. It was signed on the banks of the Thames River.
I think we ought to go a little slower. This is a perfect example of
how we are rushing through this intelligence bill. I say it with all
due respect to Senator Lieberman and Senator Collins. I admire them,
but I admire the Constitution also. I think we ought to stop, look, and
listen, and slow down a little bit here.
Without this amendment, the Congress will cede its power of the purse
just as it ceded the authority to declare war 2 years ago. We owe it to
the 9/11 families to get this right. I say to my staff all the time: If
you don't do the job right, how are you going to find time to do it
over? That applies in this instance, too. I say that with all due
respect.
There is nothing to keep my colleague--my cherished friend, for whom
I have great admiration--from coming back next year, from sitting in
the driver's seat and doing this thing and doing it perhaps better than
he has done it in the first instance. I have no doubt that he would go
at it with a will.
In the long run, the victims of 9/11 will not forgive us if we give
away the
[[Page S10206]]
power of the purse. And don't forget, it is not just that first
sentence. There is more to it than the first sentence:
No money shall be drawn from the Treasury, but in
Consequence of Appropriations made by Law; and a regular
Statement and Account of the Receipts and Expenditures of
all--
Not just some, all--
public Money shall be published from time to time.
Better ponder that bit of verbiage before we get in too big a hurry
here.
We will have some opportunities to talk further about this amendment.
In sitting down, let me again pay homage to my friend, a public servant
whom I long have admired, and this fine lady. I tell you, she is a
stalwart. But God save the Constitution. God save it. Let's don't be in
too big a hurry. Take a little more time and do it right.
I yield the floor.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. LIEBERMAN. Madam President, let me first thank the Senator from
West Virginia for his kind words. The truth is, these are critically
important matters we are debating. I feel a sense of responsibility and
honor in having the opportunity to speak to them. But I must say, to be
involved in a debate such as this with the Senator from West Virginia
is in itself an honor.
We disagree on this particular amendment, but I so respect the core
of his values that motivate him and guide him every day. I know he only
wishes the best for our country and for our Congress. I don't say it
lightly. I hope he understands these are not reflexive words and
praise. It is an honor to be involved in this kind of debate with the
Senator from West Virginia, who is a very vital Member of the Senate
today but a part of Senate and American history. I thank him very much
for caring enough about what we are doing to come here this morning and
offer this amendment.
Of course, he is the man who carries the Constitution right by his
heart and reminds us of what it requires of us. It is a founding
document. It is in many ways a sacred document to all of us Americans.
I assure him, with regard to the sections of the Constitution he read
about the appropriate allocation of responsibility of the Congress and
the executive branch regarding fiscal decisions, there is nothing in
this bill Senator Collins and I bring to the Senate that would alter
that balance in any way. I will speak to that in a bit.
There is an alteration of authority and power in this proposal
Senator Collins and I have made, but it is not altering the existing,
constitutionally based power relationship between Congress and the
executive. It does alter the allocation of authority and money and,
therefore, power between various agencies of the executive branch. But
there is no change in the congressional-executive relationship.
Yes, there are some necessary changes in the relationship between the
Department of Defense, CIA, FBI, and a new national intelligence
director who gains power here. So some may have to give up a little
bit, but that is in the national interest. That is the first point I
want to assure the Senator on.
Senator Collins and I are not only devoted to the Constitution, we
are devoted to the critical role the Constitution gives Congress in
these matters. I want to assure the Senator, again, that we have done
nothing to alter the authority of Congress.
I will read from page 28 of our bill, section (4). This is the
section that goes to the transfer authority of the national
intelligence director. On line 23, it reads:
Any transfer of funds under this subsection shall be
carried out in accordance with existing procedures applicable
to reprogramming notifications for the appropriate
congressional committees.
Then it goes on:
The National Intelligence Director shall promptly submit to
the appropriate committees of Congress a report on any
transfer of personnel made pursuant to this subsection.
Of course, there is a section in here that ``requires any transfer of
funds or personnel not exceed applicable ceilings established in law
for such transfers.'' So any succeeding Congress reserves the right to
establish such limits in law, and they will not be altered by the
Collins-Lieberman proposal.
The second thing to say is the authority we give the national
intelligence director--that we believe so strongly that director
needs--is not without control. No one is going to confuse this director
with a god, even a god of intelligence. He will be a director of
intelligence but he will be limited.
For instance, transfers of personnel and budget will be subject to
the approval of the Office of Management and Budget.
So ultimately what does that mean? It means the Commander in Chief
has to approve. If there is a fear that this national intelligence
director may do some things that, let's say, the Secretary of Defense
doesn't like, the Secretary of Defense can go right to the President
and say I don't like this and please get the OMB director not to
approve these transfers. The final responsibility for the decision goes
to where it should be ultimately in our system, which is to the
President.
We also require consultation with department heads before transfers
of budget or money or personnel are made. We require that the transfers
only be made for what we call a higher priority intelligence activity.
We don't expect this to be done wantonly. We are not allowing it to be
done wantonly, to override the appropriations of Congress. We are
saying we want that director, though, to have the ability, if there is
a crisis, to move money like a general moving troops to the point where
the Army is being attacked. As I said earlier, the transfers have to
occur within applicable ceilings established by law.
So I say this, finally, to my dear friend and respected colleague
from West Virginia. There is an urgency here, which is the urgency of
the terrorist threat that we face. The 9/11 Commission has been clear
about this. They believe we are in a situation where still, today, no
one is in charge of our intelligence community. We had testimony before
our committee in terms of Osama bin Laden, that evil person who
concocted and directed, or conceived and directed the attack against
America on 9/11/01, killing almost 3,000 innocent civilians. Obviously,
he is the No. 1 target for us today. In the hunt for Osama bin Laden,
there is no one in charge. We have two or three agencies of our
Government going at this, but there is no one in charge. The national
intelligence director will put somebody in charge. That is the urgency,
that we remain at war and we are not organized as well as we should be.
The urgency is the urgency that a general in combat would feel is clear
if the enemy is taking advantage of a particular vulnerability in his
forces. He would move quickly to shore up that vulnerability. That is
what we are doing as well.
In closing, families of the victims of September 11 have formed a
group to advocate, in some ways, in the memory of their husbands,
wives, fathers, mothers, and children who were lost on September 11, to
make sure we do what they think we ought to do to protect other
families from suffering. They sent a letter to Members of Congress a
week or two ago in which they said:
Sufficient information necessary to make a decision as to a
new, improved structure for the Nation's intelligence
community is currently available to all Members of Congress.
Opinions may differ as to how improvements are best
accomplished, but those differences can be addressed within
the framework of the legislation being proposed. There is no
excuse for deferring decisionmaking, given the wealth of
information available.
Again, that is from families of the victims of September 11. I
promised that would be the last word, but this will be the last word. I
say to the Senator from West Virginia that the very introduction of
this amendment and the discussion it engenders today between yourself,
Senator Collins, and me, and hopefully other Members listening and
involved is part of the process, similar to what we went through in our
Committee. I think a lot of Members came to the Committee hearings and
deliberations, and we went on for two days of markup. We had almost 50
amendments. We conducted a very open discussion. We listened and, in
some cases, we altered language in the mark we laid down because we
thought Members made good points. In other cases, we said it hurts the
purpose of what is required. In the end, because everybody felt we
worked together and learned a lot, we were very pleased to say the bill
was reported out unanimously. I must say that one of the
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members, when the roll was called, gave an answer that I had never
heard before. Instead of saying yea or nay, he said ``barely yea.'' We
got him just over the threshold.
My hope is that as a result of the discussion on this amendment, we
get to a point at the end of the day, or next week, that we can have a
similarly strong vote that will reflect a confidence that we have all
together learned, that we have protected our values, constitutionally
speaking, and our security, and done the best we could and will adopt
this with a real sense of confidence.
I yield the floor.
The PRESIDING OFFICER. The Senator from Maine is recognized.
Ms. COLLINS. Madam President, as we have indicated, the legislation
before the Senate is the product of a concerted effort by the
Governmental Affairs Committee to reflect the testimony of more than
two dozen witnesses at eight hearings. It reflects the recommendations
of other committees who gave us input into the legislation, and it
builds upon the work of the 9/11 Commission. But it is important to
know that the 9/11 Commission did not start from scratch, either. Its
work takes into account nearly a half century of studies on
intelligence reform, dating back to the Eisenhower administration.
Indeed, the calls for reform go back 50 years. For nearly 2 years, the
9/11 Commission conducted an investigation of unprecedented depth. They
interviewed more than 1,200 witnesses in 10 countries, yet we hear
again those who counsel: Not yet; we are going too fast; we should
wait; we need more information; under the current threat of terrorism,
the time isn't right; the highly charged political atmosphere of a
Presidential campaign creates an environment that is not right for such
an important decision.
I ask, what more information do we need? If you look at the list of
witnesses who testified before the 9/11 Commission, before the
Governmental Affairs Committee, before the Armed Services and
Intelligence Appropriations Committee, I would say, what point of view
has not been heard? What area of expertise was not explored? What more
compelling evidence do we need? I ask, if the time isn't right to act
now, when will the right time ever come? When will there be no threats?
When will we be at peace?
The war against terrorism is likely to have to continue for many
years. I believe we will have failed the American people if we do not
act on an issue that is so important to the security of our country.
I think the chairman of the 9/11 Commission, Thomas Kean, said it
best when he spoke at our very first committee hearing on July 30 of
the urgent need to move forward with these reforms. This is what he
said:
These people are planning to attack us again, and trying to
attack us sooner rather than later. Every delay that we have
in changing structures to make that less likely is a delay
that the American people can't tolerate.
I think he said it well. The stakes are too high. The matter before
us is too compelling. Even as we debate this legislation, we know that
terrorists are planning to attack our country. We know that we are at
an increased risk of terrorist attack. We see it all around this
Capitol at the intersections and with the increased security. How can
we not act? What more do we need to know?
If we do not act, I think we will have failed to respond to an urgent
threat, and we will have failed in our responsibility to do everything
we can to make our citizens safer.
Now is not the time to delay. Now is the time to move forward, and to
move forward with a bill that makes a difference, not a bill that
tinkers around the edges or makes a few cosmetic changes but, rather,
with a bill that makes fundamental reforms to respond to deficiencies,
inadequacies, and flaws that have been identified time and time again
over 50 years.
I thank the Chair.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. BYRD. Madam President, I have no intention of belaboring this
today. I understand we are going to vote next week, on Monday at 3. I
hope we will have an opportunity to debate this further on Monday.
The distinguished Senator, Ms. Collins, has said: What more do we
need? What other witnesses do we need to hear? Let me name some
witnesses who are represented by the distinguished Henry Kissinger when
he appeared before the Appropriations Committee. What an impressive
bipartisan array of national security experts pleading with Congress
not to rush these reforms. The list is a list of stars from both sides
of the aisle, as it were: David Boren, Bill Bradley, Frank Carlucci,
William Cohen, Robert Gates, John Hamre, Gary Hart, Sam Nunn, Warren
Rudman, George Shultz, as I have already mentioned, Henry Kissinger.
These men from both sides, both political parties, men who have held
preeminent positions in this Government, Republicans and Democrats,
appeared before the Appropriations Committee and said: Wait, don't act
in too great a hurry. They have decades of knowledge and experience,
and yet we stand ready to dismiss their concerns out of hand.
Let us not be rushed into this. I am not opposed to a national
intelligence director. I am not opposed to that. Elections are a
perfect time for a debate but a terrible time for decisionmaking. When
it comes to intelligence reform, Americans should not settle for
adjustments that are driven by the calendar instead of by common sense.
They deserve a thoughtful, comprehensive approach to these critical
issues.
I am not saying the distinguished members of that committee were not
thoughtful. They were. But if, as seems likely, Congress considers it
is essential to act now on certain structural reforms, we believe it
has an obligation--I do--to return to this issue early next year in the
109th Congress to address these issues more comprehensively. It would
seem to me that--let me say again--such a list, a list of stars, as
former members of the Government are concerned: David Boren, Bill
Bradley, Frank Carlucci, William Cohen--so you see, we have former
Secretaries of Defense here--Roberts Gates, John Hamre, Gary Hart,
Henry Kissinger, Sam Nunn, Warren Rudman, and George Shultz. These
luminaries are asking for more time. These witnesses testified before
the Appropriations Committee, and all of them said: Go slow; go slow.
Let me tell you who these people are.
Dr. John Hamre is the CEO at the Center for Strategic and
International Studies. The others have services and titles that speak
for themselves. I will not go into these. But I am simply saying we
need to talk some more about this next week. I hope we will ponder
carefully. I am not opposed to a national intelligence director, but I
simply say we should have more time.
We saw, Madam President, the unwisdom of being in a hurry when it
came to the invasion of Iraq. Our Government invaded. It won a short
war, but it had not given proper thought to what would come after, had
not given proper thought, it had not planned properly and carefully for
a postwar Iraq. And now look at what is happening. Look at the terrible
cost, the terrible price this Government is paying--paying with the
blood of the sons and daughters of our country. Think of it.
Let's don't be in such a big hurry. Let's take more time.
Madam President, I shall have more to say at a later time. I thank
the Chair, and I yield the floor.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Madam President, I thank the Senator from West Virginia.
I note the distinguished chairman of the Senate Armed Services
Committee is now on the floor, and I would like him to proceed whenever
he wishes.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. Madam President, I thank the managers of the bill. Before
I commence, I wonder if I might comment on the presentation of the
distinguished Senator from West Virginia, which I was privileged, as
many others were, to listen to very carefully. It was prepared in his
usual very thorough style, magnificently delivered. I am going to take
a close look at it. I thank the Senator for his contribution to this
effort.
Mr. BYRD. Madam President, will the distinguished Senator yield?
Mr. WARNER. Yes.
Mr. BYRD. Plato thanked the gods for having been born a man. He
thanked the gods for having been born
[[Page S10208]]
a Greek. He thanked the gods for having let him live in the same age as
Sophocles. And so I thank the benign hand of destiny for allowing me to
live at a time and to serve at a time when the great Appropriations
Committee of the Senate was chaired by the very distinguished Senator
from the great State that is the mother of Presidents, the State of
Virginia, a state from which comes the first President of this country,
the first Commander in Chief of the Nation, George Washington.
I have always admired Senator Warner. He is a gentleman, first of
all, and that goes a long way in this body. I thank him for his
comments. I thank him for his cosponsorship of this amendment, and I
look forward to what he has to say.
Right now, I should go to the Hart Building, where a woman who has
been my wife for 67 years, 4 months, and 2 days, is waiting to see me.
We are going to have lunch together, thank the Good Lord. So if all
Senators will allow me to leave the Chamber now, I shall go.
Mr. WARNER. Madam President, not until I make the following
observation: First, I thank the Senator for his comments. They are
undeserved but I appreciate them. I remember how many times on this
floor the Senator has recounted the importance of his wife's role in
his career, but the one I always remember--I have only been here a mere
26 years as compared to my senior colleague--was during my first couple
of years, and we were going well into the night. The Senator paused to
say how he used to go to night law school, and although he was a Member
of Congress and burdened with the duties, she would come with a little
lunch bag with a carton of milk and a sandwich to tide him over until
he left the Chamber, whether it was the House or the Senate, and go to
night law school to get his degree. I always remembered that.
Give her my warmest regards.
Mr. BYRD. If the Senator will yield, I thank him for his magnificent
encomium to my better half, a woman who has guided me and who has
served her country and her State so well. I thank the Senator for what
he has just said.
Amendment No. 3877
Mr. WARNER. Madam President, I thank the distinguished managers of
this bill. I rise now for the purpose of sending an amendment to the
desk and ask for its immediate consideration. I note that Senator
Stevens and Senator Inouye are cosponsors of the amendment.
The PRESIDING OFFICER. Without objection, the pending amendment is
laid aside.
The clerk will report.
The legislative clerk read as follows:
The Senator from Virginia [Mr. Warner], for himself, Mr.
Stevens and Mr. Inouye, proposes an amendment numbered 3877.
Mr. WARNER. Madam 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 modify the requirements for the concurrence of the
National Intelligence Director in certain appointments)
On page 40, strike line 18 and all that follows through
page 41, line 4, and insert the following:
(b) Concurrence of NID in Certain Appointments Recommended
by Secretary of Defense.--(1) In the event of a vacancy in a
position referred to in paragraph (2), the Secretary of
Defense shall obtain the concurrence of the National
Intelligence Director before recommending to the President an
individual for nomination to fill such vacancy. If the
Director does not concur in the recommendation, the Secretary
may make the recommendation to the President without the
concurrence of the Director, but shall include in the
recommendation a statement that the Director does not concur
in the recommendation.
On page 41, line 12, strike ``Concurrence of'' and insert
``Consultation With''.
On page 41, beginning on line 15, strike ``obtain the
concurrence of'' and insert ``consult with''.
Mr. WARNER. Madam President, this amendment is for the purpose of
bringing into realignment what I believe is the proper balance of the
authorities of the new NID together with the respective Cabinet
officers, each of whom has some portion of intelligence
responsibilities remaining, as well as the Director of the FBI.
I will read the amendment briefly so that colleagues can follow
exactly what I am trying to do. The amendment says:
Concurrence of NID in certain appointments recommended by
Secretary of Defense. (1) In the event of a vacancy and a
position referred to in paragraph (2), the Secretary of
Defense shall obtain the concurrence of the National
Intelligence Director before recommending to the President an
individual for nomination to fill such vacancy. If the
Director does not concur in the recommendation, the Secretary
may make the recommendation to the President without the
concurrence of the Director, but shall include in the
recommendation a statement that the Director does not concur
in the recommendation.
It is just to bring into balance the fact that according to my
research, each of the other departments and agencies that have an
intelligence role get to recommend, with the concurrence of the Cabinet
officer or the head of the FBI. This is the one instance with regard to
these combat agencies where it should be brought in alignment with the
other methodology and procedures adopted for these important personnel
selections.
I draw the attention of the managers to section 117(b) of the bill
before us. It gives the national intelligence director responsibility
and authority to recommend appointments for several agencies that
hopefully will continue to be retained within the Department of
Defense: The National Security Agency, the National Reconnaissance
Office, the National Geospatial-Intelligence Agency.
I say hopefully because we have thus far withstood the very
significant amendment by the distinguished colleague from Pennsylvania,
coauthored by the distinguished colleague from Kansas, Mr. Roberts, and
others. The Senate addressed that and by an overwhelming majority
literally rejected the taking of these three combat agencies and
putting them under the direct jurisdiction of the NID.
Now, that is a concept that was hard fought, decided, and as a
consequence, hopefully it will remain as it is in the managers' bill.
The purpose of the amendment was to dislodge the managers' section
with regard to that. That was rejected by the Senate very resoundingly.
I believe, therefore, it is appropriate at this time to bring into
alignment with the other departments and agencies the authority for the
Secretary of Defense over these three entities which remain in his
department to make the recommendation to the President with the
concurrence of the NID, and in those instances where there is
nonconcurrence the President then would have the benefit of that
diversity of viewpoints. That is the purpose of this amendment.
We must remind ourselves that these are combat support agencies in
the Department of Defense. Under the bill, as of this moment, the
agencies remain under the authority of the Secretary of Defense.
Then the interesting aspect of this, which is important to my
amendment is that in the case of the NSA, this is normally a military
promotion from two stars to three stars to take on this important
position of the Director of NSA, and that Director of NSA also serves
in the position of Deputy Commander U.S. Strategic Command for
Information, Operations, Planning and Integration, a very critical
warfighting post. Consequently, these are matters that the Secretary of
Defense, who is accountable to the President and who has direct line
authority from the President to the SECDEF to the combat commanders,
that are important to maintain.
In the case of the NRO, this is a civilian appointment, to direct the
activities of the National Reconnaissance Office but is an appointment
as the Under Secretary of the Air Force. He is dual hatted, again, an
individual who serves not only in the important post of the
intelligence NRO but as an Under Secretary of the Air Force in the
Department of Defense. It is imperative that the Secretary of Defense
have the authority to make the recommendation together with the
concurrence of the NID.
In the case of the NGA, this can be a military appointment similar to
the NSA. One primary function of the NGA is to meet the mapping needs
of our military forces. I repeat, the military forces are highly
dependent upon this agency for the tactical maps that are needed
wherever they are in the world today facing the challenges and the
threats to our country.
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These three appointments, I say most respectfully to the managers, I
feel ever so strongly should be initiated by the Secretary of Defense
with a recommendation, and then the statute, if my amendment is
adopted, will give the concurrence of the NID as an essential part of
the process.
Current law provides for the Secretary of Defense to recommend
appointment of these individuals with the concurrence of the DCI. We
have clear evidence for many years this system has worked and worked
well. There are examples where the DCI nonconcurred and the Secretary
revised the nomination in a manner consistent with gaining the
concurrence of the Director of the CIA.
The President has said he does not want anything we do in the area of
intelligence reform to blur the lines of authority, responsibility, and
accountability between him and the heads of the departments. I feel my
amendment will meet that criterion as set forth by the President. I
strongly urge my colleagues to examine the current provision, examine
the practice with respect to other departments and agencies in the
Government, and hopefully I will gain the support of the managers as
well as of my colleagues and that this amendment will be adopted.
I yield the floor.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Madam President, for the national intelligence director
to be truly accountable for the intelligence community, the director
must have the authority to have a real say in the selection of the
heads of the principal agencies of the intelligence community. The 9/11
Commission said that the ability to hire the senior managers is one of
the key authorities, critical to the success of the national
intelligence director. It is critical to the success of any leader, but
particularly it is important for the head of the intelligence
community. The 9/11 Commission cited the DCI's current lack of this
power as one of the key flaws in the DCI's authorities.
Under the Collins-Lieberman bill, the NID will recommend to the
President nominees to be the directors of the National Security Agency,
the National Reconnaissance Office, and the National Geospatial-
Intelligence Agency--the agencies known better as NSA, NGA, and NRO.
The NID is required to obtain the concurrence of the Secretary of
Defense before recommending the nominees to the President, and if the
Secretary of Defense does not agree with the recommendations of the
NID, the director must make that fact known to the President.
The distinguished chairman of the Armed Services Committee and the
managers of this bill each agree that these three critical agencies
should remain within the Department of Defense because of the dual role
these agencies play. For that reason, we joined forces to oppose the
amendment offered by the Senator from Pennsylvania that would have
severed the link between these agencies and the Secretary of Defense,
the reporting link.
In our bill, I believe we have taken the right approach. We have left
these three agencies within the Department of Defense, but we have made
it clear that there is an important reporting responsibility to the
national intelligence director and that the national intelligence
director will choose the individuals to lead these agencies with the
concurrence of the Secretary of Defense. It is actually the President's
nomination, but the recommendations would go from the NID with the
concurrence of the Secretary of Defense.
Why did we do that? We struck that balance not only because it was
recommended by the 9/11 Commission, and strongly recommended, but
because we recognize that these three agencies do not just serve the
Department of Defense; they are national intelligence assets. They
provide vital intelligence information throughout the intelligence
community. In fact, when Senator Lieberman and I met with the head of
the NSA, he told us he was on the phone far more often with the
Director of the CIA than he is with the Secretary of Defense.
These agencies provide critical information to the CIA, to the
Secretary of State, to the Secretary of Energy, to the Secretary of the
Treasury--to all those 15 agencies across our Government that vitally
need intelligence information. That is why we have the heads of these
agencies recommended by the national intelligence director with the
concurrence of the Secretary of Defense.
I point out that if we were to adopt the amendment offered by the
Senator from Virginia, we are essentially making no change in current
law. Under current law, the Secretary of Defense recommends the
appointment of these individuals to the President, and it is the
Director of Central Intelligence who concurs in the choice. So
essentially the Senator from Virginia is simply restating current law.
Current law is not adequate, and we know that that higher authority is
a key authority. If we are going to hold the national intelligence
director accountable for the intelligence community, we have to give
him the authorities he needs to do his job.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. LIEBERMAN. Madam President, I thank my friend from Virginia, the
chairman of the Senate Armed Services Committee whom I so respect and
for whom I have such a feeling of personal affection. I probably should
not say this for the record, Senator Warner, but my wife probably
wouldn't be happy to hear that I was opposing you. She has all too much
regard for your judgment and opinions. But nonetheless, I go forward.
Let me put this amendment in context. In response to the 9/11
Commission Report, Senator Frist and Senator Daschle sent it to our
Governmental Affairs Committee to consider and then recommend, on the
basis of that report, action to the Senate--which we have done. Senator
Collins and I and the members of the committee essentially built a
structure, a national intelligence director, a leader for our
intelligence community where there is none now--what I called a
quarterback for our intelligence team--where there is no quarterback, a
general for our intelligence service.
There have been two amendments put forward, in now this fifth day of
debate on the bill, that went at the architecture of the structure we
have recommended. One was by Senator Specter, which would have
dramatically altered, gone well beyond, what we had. Senator Warner
knows, because he was good enough to come and speak against the
amendment; it would have had the new NID in line control of all of
these intelligence agencies, including those that are housed and will
continue to be housed in the Defense Department. That was
overwhelmingly rejected by the Senate.
Yesterday, there was a different kind of assault on the structure we
are proposing from our committee in the amendment offered by the
Senator from South Carolina which I believe and represent would have
created in name a national intelligence coordinator but given that
person no authority, no power. It would have been the status quo
because it would have looked as if we had done something, but we would
not have done anything.
That amendment was overwhelmingly defeated.
I am grateful for both of those votes.
The amendment which the Senator from Virginia proposes, as in some
sense the amendment the Senator from West Virginia proposed earlier
today, does not knock off the structure we have proposed but alters it
in ways that I fear--certainly cumulatively--would weaken the structure
and not allow the national intelligence director to play the role the
9/11 Commission and our committee wants it to play. Is it a big
difference? No. But one element of strengthening this position of
national intelligence director is to make the influence of the director
over our national intelligence agencies--the National Security Agency,
which deals with signal intelligence and communications that are heard
in the interest of our national security, the National Reconnaissance
Organization, which puts satellites up in the air, and the National
Geospatial Agency, which has all of these remarkable capacities
technologically to see ground imagery and help our military and other
intelligence services to do what they have to do to protect us.
Here is the point: Those are national assets. Of course, they are
used every
[[Page S10210]]
day by the military, by the Department of Defense. The DOD is a very
important customer, maybe the most active customer, but not the only
customer of these assets--of signal intelligence, image intelligence,
and human intelligence.
The CIA, as Senator Collins indicated, depends on these satellites
and the other systems for important intelligence. So does the State
Department. So does now the Department of Homeland Security, even the
FBI.
We are trying to say that these national assets ought to report to
the national intelligence director, and part of that is to give the
director the opportunity to start the process for nominating the heads
of these agencies. That is a change. Now that is done. As Senator
Collins indicated, with the Secretary of Defense, we want to make a
slight change. The Secretary of Defense has the right to concur or
oppose. In most cases this will be worked out between the national
intelligence director and the Secretary of Defense. Lord knows, they
and their deputies are working out 100 decisions every day right now.
But if it is not worked out, the dissent will go to the President, and
ultimately the President will decide.
It is a only a difference. The Secretary of Defense will begin the
process of who is going to head the national agency or the NID.
Ultimately, the President will decide. Why is that different under our
bill for these three agencies as opposed to the head of a
counterterrorism division in the FBI, or that information analysis,
intelligence, and for infrastructure protection division of Homeland
Security? Because these three are uniquely national assets. The NSA,
NRO, and NGA serve all of the community and they ought to be under the
director of the community, and he or she ought to have the first say in
who fills that position.
That is why this is an important part of our structure, and why I
respectfully oppose the amendment, because it would weaken the
structure by pulling out a couple of the boards.
Mr. WARNER. Madam President, will the Senator yield?
Mr. LIEBERMAN. I certainly will.
Mr. WARNER. I want to pick up on the last point. I find there is no
effort to change the authority of the Secretary of State in the
selection of his people to do the work. But I feel strongly that the
work done by the Department of State serves the whole community. It
isn't exclusive to the Secretary of State.
I bring to the Senator's attention the fact that the Department of
State had some thoughts at variance with the Central Intelligence
Agency as related to the aspect of the critical issues relating to the
weapons of mass destruction. Does the Senator recall that?
Mr. LIEBERMAN. Through the Chair, the Senator from Virginia is
absolutely right. I do recall it.
Mr. WARNER. Therefore, they serve the whole community. And perhaps if
a caveat on some of that had been brought to the forefront in a more
strengthened fashion, who knows what the outcome might have been.
I do not believe the Senator can tell me that the person in the FBI
who has responsibility isn't serving the entire community. I think the
Senator ought to go back and reexamine that representation. I do not
find it strengthened by making an exception for the Secretary of
Defense as relates to these three individuals.
For example, I draw on my experience as Secretary of the Navy. There
was quite a competition when vacancies of the NRO and NSA came up. The
service Secretaries were invited to make nominations to the Secretary
of Defense for the offices. In the capacity of a service Secretary, you
get to know these individuals as they work their way up through the
ranks and are promoted. You have a special knowledge of their
capabilities and their strengths. You can advocate that to the
Secretary of Defense, who then in turn makes the decision with regard
to who should be selected to head the NRO based on the cumulative
advice of the several service Secretaries. Those positions are often
rotated between the Air Force, the Army, and the Navy, and they are
extremely important assignments.
With all due respect to the NID, he has so much to be done that he
cannot possibly have the knowledge about the achievements of all of the
various individuals to make a recommendation. He can, of course, come
in after study and concur or not. But you are holding the Secretary of
Defense saying you have all the responsibility with regard to this
agency. In many respects personnelwise, you are reducing the Secretary
of Defense to a payroll clerk when you do not allow him to make the
selections of the people he thinks are best qualified. In the case of
the NRO, he serves as an under secretary of the Air Force with duties
related to the NRO and duties related to the entire space program in
the Department of the Air Force. The Secretary of Defense should make
the appointment of the people who serve his Department.
I cannot accept the Senator's distinction about how you leave the
State of Department alone, the FBI alone, the Energy Department alone,
let those Secretaries make their recommendation and decisions with
regard to personnel, and then in almost a demeaning way say to the
Secretary of Defense, Oh, no, when it comes to your people, you have
the right to concur or not.
Mr. LIEBERMAN. Mr. President, if I may briefly respond to the Senator
from Virginia, the case cited of the INR, the intelligence division at
the State Department, is an interesting one. They came to a different
opinion than some other constituent agencies of the American
intelligence community with regard to, for instance, prewar WMD in
Iraq. But that was a matter of analysis primarily, not collection. They
looked at the data. Incidentally, some of the data they looked at were
data they got from these three agencies. These are the three largest
collection agencies and they are unique in that they serve the whole
community.
There is certainly no intention to diminish the Secretary of Defense.
The Secretary of Defense has a very powerful position and Senator
Collins and I want to have the Secretary remain that powerful. We had
very interesting testimony before our committee by a witness who said--
he had been in the Department of Defense and stepped out to work with a
think tank where he watches all of this--over the years when there were
conflicts or disagreements between the Secretary of Defense and the
Director of Central Intelligence, the Secretary of Defense always wins
because the Secretary of Defense has so much muscle. And that is the
reality.
We are not trying to undercut the authority of the Secretary of
Defense, and we are certainly not trying to alter the chain of command,
but we are trying to give a little more authority to the national
intelligence director so that director can really be in charge. One
small piece of that is saying, Mr. Intelligence Director, you can, in
consultation with the Secretary of Defense, make the suggestion for who
ought to head these three agencies which, unlike any other intelligence
agency within our Government, serve the entire community.
The Secretary of Defense, as I said before, is an important customer
of what these three agencies produce--``user'' may be a better term
than customer.
It was of great interest when General Hayden, head of the NSA, said
he spends more time on the phone with the Director of the CIA than with
the Secretary of Defense. We want to reflect that in this small
movement of authority.
Mr. WARNER. Mr. President, it is obvious the managers at the moment
are somewhat entrenched in their views. I hope we will have an
opportunity to appeal to the broader and hopefully more open minds of
the collective Senate as a whole.
Could the managers advise those Members who have deferred other
plans, with the importance of being here today to advocate amendments,
what will be the procedure when this will be laid aside? There will be
a record when we return Monday. I presume it would be scheduled in some
order, at the discretion of the managers, together with the leaders of
the Senate, as to the vote.
Do I get 2 minutes, 3 minutes, 4 minutes at the time the amendment is
brought up? I would like to weigh in a little bit now given that I have
not thus far persuaded my two distinguished colleagues, both members of
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the Armed Services Committee, who are interfering, in my judgment, with
the direct chain of command between the President and his combatant
commanders and principal civilian appointees.
Ms. COLLINS. Mr. President, to respond to the question raised by the
Senator from Virginia, it is the leader's intention to convene perhaps
at 10 or 11 o'clock on Monday morning, allow for some further debate,
and then stack votes beginning at 3 p.m. There will be 2 minutes
equally divided before each vote, but knowing of the Senator's desire
to have further debate on Monday, we are going to convene early enough
on Monday to allow that to occur. We expect a great many stacked votes
to begin at approximately 3 o'clock Monday. Thus, we are not going to
have time for extensive debate between those votes.
Mr. WARNER. I thank my distinguished colleague. I shall certainly be
here. As a matter of fact, I will preside for a period of time. Maybe
when I get in the chair and have the gavel, I can do something about
this amendment.
In any event, I am appreciative of the courtesies that have been
extended to Members of the Senate deliberating on this bill. This is an
important matter.
Hopefully, in the interim, I can persuade not only the Senate but the
White House to indicate its position on this amendment.
I thank the Chair. I thank my distinguished colleagues. I will be
available for further amendments as the managers decide to have them
scheduled during the course of the day.
This amendment will now be laid aside?
The PRESIDING OFFICER. Yes.
Ms. COLLINS. I ask that the amendment be laid aside. The Senator from
Vermont is next. I wonder if the Senator could withhold for a couple of
moments to allow consultation among the three of us before he sends up
his amendment.
Mr. LEAHY. Of course. The distinguished chairman and ranking Member
have always been very courteous. I know, having managed a lot of bills,
how it is. It is a reasonable request.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Chambliss). The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. LEAHY. 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. 3945
Mr. LEAHY. Mr. President, I ask it be in order for me to send to the
desk an amendment on behalf of myself and Mr. Grassley.
The PRESIDING OFFICER. Without objection, the pending amendment is
laid aside.
Mr. LEAHY. I understand there may be a question regarding my
amendment. While this is being worked on by counsel, let me proceed to
discuss it and we can go back to the amendment if there is no
objection.
Mr. President, three years after thousands of Americans were killed
in the worst terrorist attack on U.S. soil, there have been some
troubling doubts about the effectiveness of a major investigative tool
in our antiterrorism arsenal.
On Monday, the Office of Inspector General of the Department of
Justice released an unclassified version of its audit of the FBI's
Foreign Language Program and the Translation of Counterterrorism and
Counterintelligence Foreign Language Material. The results were
unsettling. They deserve our immediate attention and action.
The report shows that despite concerns expressed for years by those
in Congress and by former FBI contractors, among others, and despite an
influx of tens of millions of dol
