Congressional Record: January 7, 2003 (Senate)
Page S38-S64

      By Mr. LIEBERMAN (for himself and Mr. Daschle)
  S. 41. A bill to strike certain provisions of the Homeland Security 
Act of 2002 (Public Law 107-296), and for other purposes; to the 
Committee on Governmental Affairs.
  Mr. LIEBERMAN. Mr. President, I rise today to introduce a bill on 
behalf of myself and Senator Daschle to remedy some problems in 
landmark legislation passed at the end of the last Congress, and signed 
into law by President Bush, to establish a Department of Homeland 
Security. The legislation we are offering today would strike seven 
extraneous special interest provisions inserted into the Homeland 
Security Act by Republican leadership in the bill's waning hours, 
provisions that are contrary to the bipartisan spirit in which the 
Homeland Security Act was conceived.
  Since the days following September 11, 2001, when terrorists 
viciously took the lives of 3,000 of our friends, family and fellow 
Americans, I have advocated establishing a Department of Homeland 
Security to beat the terrorist threat. Senator Arlen Specter, and I 
initially proposed creating a new department in October 2001. Our 
measure was not just bipartisan. It was in fact intended to be 
  Unfortunately, some partisan battles did ensue, primarily regarding 
longstanding civil service protections for homeland security workers, 
and I remain very concerned about the potential impact of these 
provisions. Nevertheless, the final bill was, for the most part, a 
critical, well-constructed piece of legislation that incorporated the 
majority of the provisions approved by the Governmental Affairs 
Committee, and which an overwhelming majority of the Senate embraced.
  In some very specific ways, however, the bill was flawed. In the 
final stages of passing the bill, the Republican leadership hastily 
inserted several special interest provisions that had no place in this 
measure. Most of these provisions had never been in any version of the 
legislation before the Senate before they were presented in a take-it-
or-leave-it package by Republicans, and several had not been considered 
by either chamber. The method and spirit in which these provisions 
found their way into what should have been a consensus piece of 
legislation was utterly objectionable and Senator Daschle and I made an 
effort to remove them at the time. That effort narrowly failed, but not 
before news of these special interest provisions had created great 
consternation for Democrats and the public, and even for some 
Republicans. Indeed, according to numerous published reports, the 
Republican leadership was able to muster the votes to preserve the 
provisions only after promising to revisit at least some of the most 
egregious additions during this session of Congress.
  I believe that the seven extraneous provisions my legislation targets 
hurt the Homeland Security Act as it was finally passed by the Congress 
and signed by the President. And I believe that, by attaching these 
measures to what could have and should have been a common cause, the 
Republican leadership all but admitted that the provisions cannot 
withstand independent scrutiny. Following are the provisions my bill 
would strike.

  First, perhaps the most egregious add-on to the Homeland Security Act

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was a provision that dramatically alters the way certain vaccine 
preservatives are treated for liability purposes under the law. To 
quickly summarize this very complicated issue, children who are hurt by 
childhood vaccines generally may not go directly to court to hold 
vaccine manufacturers liable. Instead, they have to go first to what's 
called the Federal Vaccine Injury Compensation Program, which offers 
compensation for some of these claims. Parents argued, however, that 
the bar on lawsuits didn't use to apply to claims regarding faulty 
vaccine additives.
  These seemingly arcane legal distinctions were particularly important 
to a large number of parents of autistic children who have attributed 
their children's autism to thimerosal, a mercury-based preservative 
that used to be in some childhood vaccines. These parents sued the 
manufacturers of both vaccines and thimerosal, and they had many 
lawsuits pending in the courts as of last Fall.
  If you are wondering what any of this has to do with Homeland 
Security, you are doing exactly what we all did last November when in 
the waning days of debate on the Homeland Security bill, a provision 
addressing this issue appeared for the very first time in any version 
of the bill. That provision fundamentally altered the way vaccine 
additive claims would be treated from then on. With the swoop of a pen, 
the pending additive lawsuits against both vaccine and additive 
manufacturers were thrown out of court and, the provision's supporters 
alleged, sent into the compensation fund.
  As I said last Fall, I don't know whether there is any relationship 
between thimerosal and autism. I also don't know whether these cases 
really should be resolved in court or through the compensation fund. 
But I do know that figuring out where and how to resolve these claims 
is a very contentious, complex and challenging task, and is just one 
part of addressing broader problems with the vaccine compensation 
system. For example, the vaccine compensation fund's viability may be 
affected by the addition of claims regarding these additives. I also 
know that it is an issue that the committees of jurisdiction had been 
struggling with for a long time and that they should have been left to 
resolve. And I certainly know that a last second addition to the 
Homeland Security Act was absolutely the wrong way to deal with this 
issue and the wrong bill to use to take so many injured parents' and 
children's legal rights away. Indeed, we know that even more now, as it 
has become clear that while the provision closed the courthouse door to 
autistic children, it apparently didn't open the compensation fund 
window as its supporters said it would--because it didn't make the 
changes to either the fund's statute of limitations or to governing tax 
code provisions that would be necessary to obtain access to the fund 
for these cases.
  The bottom line is that this was a wrong and poorly conceived 
provision to put in the Homeland Security bill--something I thought 
even the Republican leadership acknowledged when they were forced to 
make promises to get rid of this provision in order to save their bill. 
We should scrap it now, and let the committee of jurisdiction undertake 
a careful review and, I hope, get it right this time.
  My legislation would also strike from the Act a measure that requires 
the Transportation Security Oversight Board to ratify within 90 days 
emergency security regulations issued by the Transportation Security 
Agency. If the oversight board does not ratify the regulations, they 
would automatically lapse. Despite the TSA having decided that they are 
necessary, 90 days later, lacking the board's approval, they'd 
  This doesn't make any sense. In the current climate, shouldn't we be 
trying to find new ways to expedite and implement TSA rules, not always 
to disrupt and derail them? This provision is contrary to new 
procedures that the Senate passed in 2001 in the aviation security 
bill. Under that law, regulations go into effect and remain in effect 
unless they are affirmatively disapproved by the Board. I think that's 
a better system.
  Another provision would extend liability protection to companies that 
provided passenger and baggage screening in airports on September 11.
  But we in the Senate decided against extending such liability 
protection in at least two different contexts. First, the airline 
bailout bill limited the liability of the airlines, but not of the 
security screeners, due to ongoing concerns about their role leading up 
to September 11. Then, the conference report on the Transportation 
Security bill extended the liability limitations to others who might 
have been the target of lawsuits, such as aircraft manufacturers and 
airport operators, but again not to the baggage and passenger 
  Like that little mole you hit with the mallet in a whack-a-mole game, 
somehow this provision reappeared in the Homeland Security Act. We must 
strike it.
  Another unnecessary and overreaching provision I seek to strike gives 
the Secretary of the new department broad authority to designate 
certain technologies as so-called "qualified antiterrorism 
technologies." His granting of this designation, which appears to be 
unilateral, and probably not subject to review by anyone, would entitle 
companies selling that technology to broad liability protection from 
any claim arising out of, relating to, or resulting from an act of 
terrorism, no matter how negligently, or even wantonly and willfully, 
the company acted.
  This provision seems to say that in many cases, the plaintiff can't 
recover anything from the seller unless an injured plaintiff can prove 
that the seller of the product that injured him or her acted 
fraudulently or with willful misconduct in submitting information to 
the Secretary when the Secretary was deciding whether to certify the 
  Even in cases where a seller isn't entitled to the benefit of that 
protection, the company still isn't fully, or in many cases even 
partially, responsible for its actions, even if it knew there was 
something terribly wrong with its product. Perhaps worst of all, this 
measure caps the seller's liability at the limits of its insurance 
policy. In other words, if injured people were lucky enough to get 
through the first hurdle and even hold a faulty seller liable, they 
still could go completely uncompensated even if a liable seller has 
more than enough money to compensate them.
  The Homeland Security Act unwisely and unnecessarily allows the 
Secretary to exempt the new department's advisory committees from the 
open meetings requirements and other requirements of the Federal 
Advisory Committee Act, FACA.
  Agencies throughout government make use of advisory committees that 
function under these open meetings requirements. Existing law is 
careful to protect discussions and documents that involve sensitive 
information, in fact, the FACA law currently applies successfully to 
the Department of Defense, the Department of Justice, the State 
Department, even the secretive National Security Agency.
  So why should the Department of Homeland Security be allowed to 
exempt its advisory committees from its requirements? Why should its 
advisory committees be allowed to meet in total secret with no public 
  We all say that we're for "good government," for openness, 
integrity, and accountability. But as it now stands, few of us will be 
able to say with confidence that the new department's advisory 
committees are designed to be as independent, balanced, and transparent 
as possible. I know full well that the Homeland Security Department 
will deal with sensitive information involving life and death, but so 
does the National Security Agency. So does the FBI. So does the 
Department of Defense. Their advisory committees aren't allowed to hide 
themselves away from the public.
  Finally, our legislation would alter a provision in the Act creating 
a university-based homeland security research center. Now, I have 
nothing against creating a university research center focused on 
homeland security.
  But there's a problem with this particular provision as it is 
written. The research center that it would create is described so 
narrowly, through 15 specific criteria, that it appears Texas A&M 
University has the inside track, to say the least, to get the funding 
and house the center.
  Science in this country has thrived over the years because, by and 

[[Page S47]]

Congress has refused to intervene in science decisions. Science has 
thrived through peer review and competition over the best proposals--
which are fundamentals of federal science policy. We are violating them 
here. This is nothing short of "science pork."
  When it comes to making these research funding decisions, we need a 
playing field that's truly level, not one that only looks level when 
you tilt your head.
  Our legislation keeps the university-based science center program. 
However, it removes the highly-specific criteria that appear to direct 
it to a particular university. That's the way we'll get the best 
science, not by making Congressional allocations to particular 
  I'm extremely pleased we have created a Department of Homeland 
Security and plan to do everything I can to help ensure its success. 
But these flaws are real. They are serious. And they are utterly 
unnecessary. I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 41

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,


       (a) Stricken Provisions.--
       (1) In general.--The Homeland Security Act of 2002 (Public 
     Law 107-296) is amended--
       (A) in section 308(b)(2) by striking subparagraph (B) and 
     inserting the following:
       "(B) Criteria for selection.--In selecting colleges or 
     universities as centers for homeland security, the Secretary 
     shall consider demonstrated expertise in interdisciplinary 
     public policy research and communication outreach regarding 
     science, technology, and public policy.";
       (B) in section 311--
       (i) by striking subsection (i); and
       (ii) redesignating subsection (j) as subsection (i);
       (C) in title VIII, by striking subtitle G;
       (D) by striking section 871;
       (E) by striking section 890;
       (F) by striking section 1707; and
       (G) by striking sections 1714, 1715, 1716, and 1717.
       (2) Technical and conforming amendments.--The table of 
     contents for the Homeland Security Act of 2002 (Public Law 
     107-296) is amended by striking the items relating to 
     subtitle G of title VIII, and sections 871, 890, 1707, 1714, 
     1715, 1716, and 1717.
       (b) Advisory Groups.--Section 232(b) of the Homeland 
     Security Act of 2002 (Public Law 107-296) is amended by 
     striking paragraph (2) and inserting the following:
       "(2) To establish and maintain advisory groups to assess 
     the law enforcement technology needs of Federal, State, and 
     local law enforcement agencies.".
       (c) Waivers Relating to Contracts With Corporate 
     Expatriates.--Section 835 of the Homeland Security Act of 
     2002 (Public Law 107-296) is amended by striking subsection 
     (d) and inserting the following:
       "(d) Waivers.--The Secretary shall waive subsection (a) 
     with respect to any specific contract if the Secretary 
     determines that the waiver is required in the interest of 
     homeland security.".
       (d) Effective Date.--The amendments made by this Act shall 
     take effect as though enacted as part of the Homeland 
     Security Act of 2002 (Public Law 107-296).