[Pages S8880-S8889]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

                     HOMELAND SECURITY ACT OF 2002

  The PRESIDING OFFICER. Under the previous order, the hour of 11:30 
a.m. having arrived, the Senate will now resume consideration of H.R. 
5005, which the clerk will report.
  The legislative clerk read as follows:

       A bill (H.R. 5005) to establish the Department of Homeland 
     Security, and for other purposes.


       Lieberman amendment No. 4471, in the nature of a 
       Byrd amendment No. 4644 (to amendment No. 4471), to provide 
     for the establishment of the Department of Homeland Security, 
     and an orderly transfer of functions to the directorates of 
     the Department.
       Reid (for Byrd) amendment No. 4673 (to amendment No. 4644), 
     in the nature of a substitute.

  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. THOMPSON. Madam President, I ask unanimous consent that there be 
1 hour for debate, equally divided, on the cloture motion.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. THOMPSON. And the vote to occur at the end of that hour.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. THOMPSON. I thank the Chair.
  Madam President, about a year ago, we began hearings on the homeland 
security issue in the Governmental Affairs Committee. Other committees 
had hearings, but we had a series of hearings that lasted until 
  During that time, we reached bipartisan agreement on many important 
factors. We reached bipartisan agreement on the notion that we need to 
reorganize our Government to meet the new challenges our country faces. 
We live in a different world, a new world, a dangerous world, and we 
need to reorganize our governmental agencies to deal with that world. 
We have very broad bipartisan agreement on that.
  We also discovered in that time that we have some very important 
points of disagreement.
  I think it was the understanding of everyone concerned that after we 
addressed this in the committee, after we had a full discussion, a 
series of hearings, after we had an extensive markup and aired all of 
these similarities, these points of agreement, and points of 
disagreement, that we would be able to take that committee product, 
bring it to the floor, as Senator Lieberman has done, and that we would 
be discussing the merits of the points of agreement and the points of 
disagreement because we were about very important business of our 
country and the future safety of our country, with the full realization 
that we were doing something that had not been done for over half a 
century in this Government, in terms of the scope of the 

[[Page S8881]]

  I believe that was the understanding, that this would be the process, 
and that it was one of those rare times--all too rare around here--that 
we would come together on both sides of the aisle and address it in 
that way.
  It was not to be. We have spent the last 3 weeks in the afternoons 
supposedly on this bill and have accomplished very little.
  Of course, we had the September 11 anniversary in the middle of that 
time period, and we had a holiday in the midst of that time period. We 
also had a commemoration in New York, which many of us attended, in 
connection with the anniversary of September 11. But we still have had 
3 weeks of afternoons for consideration of this bill, and we only 
really considered one of the substantive areas of disagreement.
  We have had a considerable period of time in the way legislative 
calendars go, but we have had very little time to consider these very 
important issues that we have been discussing in the press, in the 
media, on the floor, and in committee for now going on a year at least.
  Instead of coming to the floor and proceeding with those issues, we 
have had time taken up under the rules of the Senate, as Senators have 
a right to do, on matters that are peripheral to the important 
amendments and the issues with which we know we have to deal.
  Our side of the aisle has all this time been trying to get 
consideration of the issues that we know we have to consider. We are 
going to have to consider, one way or another, whether we want to 
diminish the President's national security authority. Could there be 
anything more important than that?
  We are going to have to decide whether or not we are going to give 
this new Secretary management flexibility to deal with the new problems 
in any Governmental Department nowadays, especially in this one.
  We are going to have to decide what kind of intelligence apparatus we 
are going to have within this new Department eventually.
  We are going to have to decide whether we are going to give the 
President reorganization authority.
  We are going to have to decide all these issues. All these issues 
have been begging for consideration all this time. This Senator has 
been trying to get them up for consideration. This Senator took 6 days 
trying to get a vote on the question of the nature of the White House 
person and whether or not he would be Senate confirmed. We finally, 
after 6 days, got a vote on that. It was a voice vote, and it was 
adopted. That is the only substantive amendment we have even had an 
opportunity to consider.
  With that background, and before considering any of these other 
issues at all, or having any discussion, any debate, the other side has 
filed cloture. After taking up all this time on all these other 
issues--days and hours of discussions on one thing or another--they 
have filed cloture. They have essentially filed cloture against 
  I may not have been here long enough to fully understand all of the 
history and the way things work around here, but I hope that it is a 
rare occurrence for the majority party, or anyone else, to bring up 
their own bill, filibuster, and then file cloture against themselves in 
order to cut off the other side from offering amendments, which we know 
have to be considered. That is the situation we have. That is the 
bizarre circumstance in which we are today.
  That is not the proper purpose of a cloture motion. I ask my 
colleagues: Do they really believe there is any chance of getting a 
bill under these circumstances? This cloture motion is not about 
substance. It is not about moving the bill. Everybody knows if this 
cloture motion succeeds, there will be no bill this year. The President 
will veto this bill as sure as I am standing here. Without even having 
the opportunity to consider these issues concerning his own authority 
or the management flexibility or the reorganization or the intelligence 
component, or any of these other issues, they file cloture and deprive 
us of considering these issues?
  I am not sure anybody is going to argue the amendments would be 
germane after cloture. The effect is to cut us off. It is not about 
substance. It is not about moving the bill along. It is about 
appearances and it is about assessing blame. I guess there is quite a 
bit of embarrassment around here that we have spent 3 weeks and have 
essentially done nothing. Now apparently we want to give the appearance 
we are trying to move this along so we file cloture, plus putting us in 
the position on this side of the aisle of opposing cloture and make it 
look as if we are holding up the bill, when we are the ones who have 
been trying to get our amendments up and considered. I do not think the 
American people are going to buy that.
  When it comes to matters of this importance, where we could come 
together on a bipartisan basis and address these issues, I say to those 
Americans, better luck next time, because the matter has not gotten 
serious enough yet. We are only dealing with the security of this 
country, but we are going to engage in our same old games.
  I have a suggestion that instead of worrying about the appearances of 
moving this bill, let us actually move it. We should defeat this 
cloture motion and get on with those issues we are going to have to 
address sooner or later and give us a chance of having a bill.
  Therefore, I respectfully urge my colleagues to oppose cloture in 
this instance.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. GRAMM. Madam President, I want to try to summarize my thoughts so 
the distinguished Senator from Tennessee can preserve some of his time.
  When 9/11 happened, and after that terrible day when we all stood 
together in front of the Capitol and sang ``God Bless America,'' I 
thought that coming together on a proposal to defend our country and 
its people was going to be about as easy as it had been after December 
7, 1941. I was absolutely and totally wrong.
  As strange as it sounds, as unbelievable as it is, the Lieberman bill 
takes power away from President Bush to declare a national emergency 
and, in the process, override business as usual in the Federal 
bureaucracy, a power that Jimmy Carter had, a power that Ronald Reagan 
had, a power that the first President Bush had, a power that Bill 
Clinton had and used.
  Incredibly, after thousands of our people have died, after all of the 
suffering and all the trauma, we now have in a bill--a bill that is 
shameless enough to call itself related to homeland security--an effort 
to take power away from the President that he had on 9/11.
  I am not sure the American people truly understand that President 
Bush has asked for no additional emergency powers to set aside work 
rules within the Federal bureaucracy. In fact, he has already agreed to 
reduce those powers very slightly as compared to what his four 
predecessors possessed. But that is not enough for the supporters of 
the Lieberman bill. They want to deny the President the power to 
declare, on a national security basis, that we change the way the 
bureaucracy works to allow him to put the right person in the right 
place at the right time.
  Let me give a concrete example of it. At Logan Airport in 1987, 
Customs agents decided they needed to change the way a room was 
structured in order to do inspections and in order to improve the 
quality of the inspections. The Treasury employees labor union objected 
and filed a complaint with the Federal Labor Relations Authority that 
said, under their union work rules, they had to sign off on a change in 
the work space, and the FLRA ruled that the Customs Service could not 
change their inspections facility because it overrode a provision of 
that union contract.
  Let me remind my colleagues that two of those planes that were 
involved in terrorist attacks flew out of Logan Airport. Are we today 
to allow a work agreement and the Federal Labor Relations Authority to 
override the President if he wants to improve security at Logan 
Airport? I do not think so. I do not think the American people believe 
that we should, but that is exactly what is being proposed.
  So I urge my colleagues to reject this idea that in the name of 
national security we should take national security power away from the 
President. If this

[[Page S8882]]

cloture motion prevails, we will have only been allowed to offer one 
amendment, the Thompson amendment. A vote to kill it failed, but then 
for 3\1/2\ days it was held in limbo. If this cloture motion is agreed 
to, a substitute amendment, which perhaps is supported by between 40 
and 50 Senators, would not be able to be offered.
  The majority had a right to file a cloture motion--that is the way 
the Senate works--but with all due respect I think it was wrong to file 
it. I do not think it can be justified given we have had an opportunity 
to offer one amendment, and I do not believe the American people would 
be in favor of ending debate on this bill while its major feature takes 
power away from the President to use national security waivers instead 
of preserving that power. So I urge my colleagues to vote no on this 
cloture motion.
  I conclude by reading a quote from Dwight David Eisenhower. I think 
it is very appropriate as we debate the Homeland Security Department 
and its structure. Ike said:

       The right organization will not guarantee success, but the 
     wrong organization will guarantee failure.

  I believe the bill, as it is now structured, is an unworkable 
organization. The President has said he will veto it, that he would 
rather have no bill than this. When are we going to awaken and give the 
President the tools he needs to finish the job? I hope it is soon, and 
I hope we begin today by voting down this motion to deny us the ability 
to give the Senate an opportunity to work its will on the President's 
  I yield the floor.
  The PRESIDING OFFICER. The Senator from California has a half hour.
  Mrs. BOXER. What are the rules? Do I have to ask for a specific 
number of minutes or may I speak until I finish my remarks?
  The PRESIDING OFFICER. The Senator from Connecticut controls 30 
  Mrs. BOXER. I ask Senator Lieberman if he will yield 5 minutes to me 
to speak in favor of cloture on his amendment, and then address the 
Byrd amendment.
  Mr. LIEBERMAN. Madam President, I yield 5 minutes to the Senator from 
California for that purpose.
  Mrs. BOXER. I thank the Senator very much for yielding me the time.
  As I begin my remarks, I offer my thanks to both Senator Lieberman 
and Senator Byrd for the work they have done on behalf of the American 
people and for the principled and deliberative approach they have 
brought to this very complex issue.
  I have tremendous misgivings about the size and shape of this 
Department, which I will address. I do want to seek cloture. I do want 
to see some finality. I do think this is very important.
  I was distressed yesterday to hear comments from the Senator from 
Texas, Mr. Gramm, in which he said the American Government was the 
laughingstock of the world because of our work rules. That is the first 
time I have ever heard that the American Government is the 
laughingstock of the world for any reason.
  This is the greatest country in the world, and I believe one of the 
key reason, is our people and their dedication. I know one of the big 
issues between both sides and some on our side of the aisle, as 
expressed by Senator Miller yesterday, is we should, in fact, change 
some of the worker rules and strip some of those rules from this new 
Department. I want to say respectfully I will fight that with every 
bone in my body, as will the Senator from Georgia and the Senator from 
Texas, who will oppose what my view is.
  I want to say this and not linger on it too long because we will have 
more time. Every single one of the heroes of 9/11--every fireman, every 
policeman, every emergency worker--happened to be covered by work 
rules. They never looked at their watch and said, oh, my God, I am 
working overtime, I had better get out of here, or I am in danger and I 
should be getting hazardous duty pay. We never saw that. We saw an 
incredible dedication by workers who cared about what they were doing. 
I found it tremendously insulting to hear those words in the Senate. I 
will fight for those workers.

  We are creating a homeland security office that is supposed to be 
second to the Pentagon in defending the American people. What do we do 
to the people who work in that Department? Make them second class. In 
my opinion, that is disastrous. I have met some of the workers. They 
are the heroes of tomorrow. They deserve to be treated with respect, 
not stripped of the worker rules that protect them. We will talk more 
about that.
  Briefly, I support the Byrd amendment, and I look forward to having a 
chance to speak at greater length. This is a huge change in our 
Government. Under the current plan, much improved from the House--the 
Lieberman plan is much improved from the House version--we will be 
taking 170,000 employees and shifting them over to a new Department. 
Many of these agencies have multiple responsibilities--not just to 
protect the homeland but, for example, in the Coast Guard search and 
rescue missions, so important to my home State.
  In the case of FEMA, when we have an earthquake, if we have a flood, 
or if there is a hurricane anywhere in the country, FEMA must come and 
deal with it, deal with the people who suffer losses, deal with the 
businesses that suffer losses. I don't understand why we have taken 
those agencies in whole cloth and placed them in the new Department.
  Senator Byrd says, yes, we need this Department of Homeland Security. 
He moves forward with the top level people who will be bright and 
smart, who will be able to look at their challenge and let the Congress 
know in the ensuing days, weeks, and months what they need to do their 
job. Senator Byrd is courageous to get out here and slow this train 
  I have been in government a long time. I started at local government 
many years ago. I was on a county board of supervisors. We ran the 
whole county--the court system, the emergency workforce, transit 
district, and the rest. One of the lessons I learned: Do not do 
something that just looks good; do not do something that just sounds 
good; do not do something just because it protects you politically; do 
something right. Mostly I learned, don't do something so big, so huge, 
that there is less accountability rather than more accountability.
  I thank Senator Byrd. I support the cloture motion. I want to see a 
streamlined Homeland Security Department. That is what I will work for.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Miller). The Senator from Connecticut is 
  Mr. LIEBERMAN. Mr. President, I yield myself such time as I may 
  I rise to speak in favor of the cloture motion Senator Daschle has 
filed. It does seem to me that it is time to begin heading toward a 
conclusion of our deliberations on homeland security and to have a 
final vote as soon as we can. This cloture petition is a way to begin 
to do that. I have said before, and I will say it again, briefly, some 
of members on the Governmental Affairs Committee have been at this for 
almost a year now. In fact, a certain amount of activity began in 
Congress before that. Congressman Thornberry of Texas, a distinguished 
Member of the other body, introduced legislation early in 2001, months 
before September 11, to create a Department of Homeland Security. That 
was based on the work of the so-called Hart-Rudman Commission.
  Our committee was carrying out hearings on this matter, held one 
prescheduled on September 12 on the question of how to protect the 
American people from terrorist assaults on our cyber-systems, a point 
of vulnerability that we have to organize ourselves to protect against. 
We held 18 hearings in our committee related to homeland security and 
the creation of the Department. Our committee reported out a bill in 
May by a 9-to-7 vote, unfortunately, a partisan split on the committee 
at that point.
  President Bush endorsed the idea of a Homeland Security Department, 
and his proposed Department, most of the recommendations were quite 
similar--some exactly the same--as those contained in the bill that had 
come out of our committee in May on a partisan vote. We worked together 
with the White House and members of the committee.
  On July 24 and 25 of this year, we had two long, thoughtful, 
productive days of markup in our committee and reported out the 
amendment before the

[[Page S8883]]

Senate as the underlying amendment creating a Department of Homeland 
  We came to this bill immediately after we returned after Labor Day. 
This is the third week. A lot of the days have not been full days. We 
have had the two-tiered system with appropriations matters in the 
morning and homeland security in the afternoon. There has been a lot of 
debate and I hope a lot of consideration of the merits and demerits of 
the various ideas.
  Some of our colleagues on the other side of the aisle have begun to 
complain about the pace of action; that the longer we wait to adopt a 
homeland security measure, the longer it will take to set it up, the 
more the American people will be exposed to danger from the terrorists 
who are clearly out there. We see it every day in the paper. We know it 
ourselves from briefings we have had, both open and classified. The 
enemy is there and not just at our door, but as we see from the arrests 
that occurred in Lackawanna, NY, within the last week, they are inside 
the house.
  It is time to move forward on the 90 percent of ideas that are pretty 
much the same. We have some parts on which we are in disagreement. 
Senator Gramm and the occupant of the chair, I gather, have a 
substitute amendment. We have various amendments to try to alter the 
underlying amendment. Let's get on with it.
  I must say, I am puzzled, having heard the Senator from Texas speak a 
few moments ago, how those who have claimed we are not moving fast 
enough toward adopting a Department of Homeland Security bill because 
of the dangers involved are now going to vote against this cloture 
petition, which, of course, as all the Members know, would essentially 
narrow the debate, begin to move us toward germane amendments, and 
hopefully say to our colleagues and to our country that we are getting 
close to that time when we have to act.
  I am puzzled why people who have complained about the pace of action 
on the Department of Homeland Security bill would vote against this 
cloture motion, against a vote on cloture. I hope they give it a second 
thought. Not only is there a critical urgency that we move forward to 
adopt this bill, get it to a conference committee with the House, get 
it to the President's desk, have it adopted, begin the work of creating 
the Department, but, Lord knows, we have a lot of other important work 
to do in this Senate and in the Congress generally, with appropriations 
bills, with matters related to potential military action against Iraq, 
matters related to the economy--particularly the retirement security of 
the American people, reactions to the corporate scandals that have 
occurred about which there is broad bipartisan interest in having us do 

  I think the time is now. I think each of us ought to vote for cloture 
and then let's have a system for having a finite number of amendments 
come before the Chamber. Let's give people the opportunity to make this 
bill as it came out of the committee better than it is. I think we have 
done a pretty good job. I described it yesterday, I believe, here on 
the floor as obviously not perfect but the first best effort toward 
taking the disorganization that exists now, that is dangerous, and 
organizing not just our Federal Government but our national strength to 
meet the terrorist threat.
  I just came from a meeting with some families of victims of September 
11. I have met with them several times before. There were about 120 who 
we lost, who were residents of Connecticut--a grievous loss. From the 
first time I met with them, they asked the question that echoes in my 
mind and my heart, which is, How could this have happened? And the 
subquestion is, Could this have been prevented so I would not have lost 
a spouse, a child, a parent, a friend?
  This Department proposal is an answer to that question--not fully the 
answer to the question of how it could have happened, but surely an 
answer to the plea that we take action to make sure nothing such as 
September 11 ever happens again. It is for that reason I support the 
cloture motion and hope my colleagues, on a bipartisan basis, will vote 
for it so we may then go forward on a bipartisan basis to adopt a bill 
that will, as soon as possible, create a Department of Homeland 
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. LIEBERMAN. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  Mr. BYRD. Mr. President, will the Senator yield briefly?
  The PRESIDING OFFICER. Will the Senator withhold?
  Mr. LIEBERMAN. Yes. Does the Senator wish to speak on the cloture 
  Mr. BYRD. Not at length. Just a moment.
  Mr. LIEBERMAN. I am happy to yield time to the Senator as he needs.
  Mr. BYRD. Yes. Mr. President, John Stuart Mill said:

       On all great issues, much remains to be said.
  This is a great issue. Much remains to be said. I understand that 
some said that I have been filibustering and holding the floor. I would 
like to hear that again. I am not holding the floor.

       On all great issues, much remains to be said.

  I hope other Senators will say much on the pending amendment, the 
Reid-Byrd amendment. The floor is open.
  The PRESIDING OFFICER. Who yields time? If no one yields time, time 
will be charged equally to each side.
  Mr. LIEBERMAN. Mr. President, I suggest the absence of a quorum, and 
I ask the time be equally divided.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BYRD. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BYRD. Mr. President, neither side seems to be interested in 
saying anything at the moment. I have a statement I would like to make 
if both sides would allow me to have the time, 10 minutes--I might be 
able to make it in 10 minutes.
  Mr. LIEBERMAN. I have no objection.
  Mr. NICKLES. What was the request?
  Mr. LIEBERMAN. The suggestion Senator Byrd raises is since neither 
side is using the time allocated, he has a statement he would like to 
make in the remaining time.
  Mr. NICKLES. I have a statement to make on the vote we will have in 
10 minutes, and then I will be happy to yield.
  Mr. BYRD. Mr. President, the Senator may have the floor if he wishes.
  The PRESIDING OFFICER. The Senator from Oklahoma is recognized.
  Mr. NICKLES. Mr. President, I am happy to have the Senator from West 
Virginia speak. I do wish to speak on the issue we have before us.
  Parliamentary inquiry: The unanimous consent calls for a vote at 
12:30; is that correct?
  The PRESIDING OFFICER. Twenty-two minutes remain, according to a 
subsequent unanimous consent agreement.
  Mr. THOMPSON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Tennessee is recognized.
  Mr. THOMPSON. May I ask how much time our side has remaining?
  The PRESIDING OFFICER. There remain 10\1/2\ minutes.
  Mr. NICKLES. The vote is anticipated to be at 12:30?
  The PRESIDING OFFICER. It is 12:40.
  Mr. NICKLES. Will the Senator yield me a few minutes?
  Mr. THOMPSON. I yield such time as the Senator may consume.
  The PRESIDING OFFICER. The Senator from Oklahoma is recognized.
  Mr. NICKLES. Mr. President, I think we have had some good debate. I 
am not here to debate the substance of the two proposals, but I am here 
to debate strongly against voting for cloture. It seems like I was here 
yesterday doing the same thing on the Interior bill. I am going to do 
it again. My friend and colleague for whom I have the greatest respect, 
the Senator from West Virginia, knows the Senate rules better than 
any--I mentioned yesterday that we are getting way too frivolous about 
dropping cloture votes every time somebody wants to have a vote. It 
achieves no purpose whatsoever.
  That is exactly what is going to happen here. Cloture is a very 
serious procedure. That limits a Senator's ability

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to offer amendments. The Senate of the United States is one of the 
greatest institutions in the history of democracy, and we are going to 
have cloture. I have heard some colleagues say they hope it is invoked. 
If it is, that means the amendment the Senator from Tennessee, Mr. 
Thompson, is offering, along with Senator Gramm and Senator Miller, 
cannot be offered because it would be nongermane. Are we going to deny 
them the opportunity to offer an amendment they have worked hard on and 
which every colleague in this body knows they are entitled to offer? 
Are we going to file cloture so you can't offer amendments to it?
  I am amazed at how quickly people draw their gun of cloture to deny 
Senators on both sides the opportunity to offer amendments. I know 
there are a lot of amendments that are floating around. I have heard 
people say, for example, I think I might do an amendment dealing with 
the intelligence operation. Those amendments, in almost all likelihood, 
would be nongermane.
  I just urge my colleagues to let us respect the rights of individual 
Senators to offer amendments.
  Mr. LIEBERMAN. Mr. President, will the Senator yield for a question?
  Mr. NICKLES. I would be happy to yield.
  Mr. LIEBERMAN. I ask my friend from Oklahoma--I have not had an 
opportunity given to me to look at the substitute that may be offered 
by the Senator from Texas--why would it be germane if parts of it don't 
relate to homeland security?
  Mr. NICKLES. I appreciate the question of my good friend. I am sure 
he is aware of the Senate rules postcloture. Germaneness requirements 
are so strict that they prohibit a lot of amendments; amendments that 
are, frankly, quite germane wouldn't be germane by the ruling of the 
Parliamentarian and by the history and precedents of the Senate.
  We have all been around here for a while--some of us longer than 
others. Postcloture germaneness is very strict and would prohibit 
probably 90-some percent of the amendments to be offered. Any Senator 
could offer amendments to strike a section of the Senator's bill. I 
guess we have been doing that a long time, but that is not the way to 
do it. The Senator from Texas should be entitled to offer his 
amendment. Senator Miller cosponsored the amendment. A lot of us have 
cosponsored the amendment. We want to have the right to offer that 
  I haven't asked the Parliamentarian. But I would guess, if the 
Parliamentarians have reviewed the language, they would find that 
amendment would be nongermane postcloture. It is germane to the 
subject. It would be germane by almost anybody's definition of 
germaneness because we are talking about homeland security. It would be 
germane because it is the President's proposal. The White House worked 
on it, but according to strict Parliamentarian procedures, it may well 
be ruled nongermane.
  Mr. BYRD. Mr. President, will the Senator yield?
  Mr. NICKLES. I would be happy to yield.
  Mr. BYRD. Mr. President, I know what the Senator is saying. We all 
know the Parliamentarian gives guidance, but I hope when the Senator 
talks about the Parliamentarian and the aid which the Parliamentarian 
gives, we are talking about the ruling of the Chair. It is not the 
ruling by the Parliamentarian, with all due respect to the 
Parliamentarian. The Chair gets the guidance of the Parliamentarian. 
But it is still the ruling by the Chair.
  Mr. NICKLES. I appreciate my colleague saying it is the ruling of the 
Chair. And the ruling would be following the advice most likely of the 
Parliamentarian who would be following the precedents of the Senate. 
And the precedents of the Senate would be postcloture germaneness, 
which is very strict, indeed. And most germane amendments would fall. 
We have just begun this debate.

  I will tell my friend and colleague, who is also the chairman of the 
Appropriations Committee, that we agreed to allow two bills to go 
simultaneously--Interior and the Department of Homeland Security. 
Neither bill is moving, much to my chagrin as a person who realizes we 
only have 10 days left in this fiscal year, and we haven't been passing 
appropriations bills. We dual-tracked some bills when the Senator from 
West Virginia was majority leader. We dual-tracked bills under Bob Dole 
as well. Sometimes it works. For the last 3 weeks it has not worked.
  We haven't made adequate progress on Homeland Security, and we 
haven't made adequate progress on Interior. Maybe it is because all of 
us have to fight or to wrestle with too many issues simultaneously. I 
am not sure. But the progress on both bills has been rather poor.
  If we want to--and I want to--pass every appropriations bill by the 
end of the fiscal year and have them on the President's desk for his 
signature, or for his veto. I think that is our constitutional 
responsibility. We are not getting it done. That is disappointing me.
  I happen to think there probably is no greater issue confronting this 
Congress than the Department of Homeland Security. And I think we 
should have the opportunity to be able to offer alternatives. If 
cloture is invoked, I am afraid the primary alternative authored by 
Senators Gramm, Miller, Thompson, and myself wouldn't be allowed 
  That is why I would say in fairness that we can count votes. I know 
you are not going to get cloture. I do not know why we are doing it. If 
we gave you cloture, we could tie this place up. Nobody is 
filibustering this bill.
  No one--at least on this side. Maybe others are. Maybe others have 
different agendas, but no one on this side of the aisle wants to 
filibuster this bill in any way, shape, or form.
  I will say the same thing for the Interior bill. We had a vote on 
cloture on the Interior bill. I heard the Senator from West Virginia 
say he wouldn't filibuster. We are not filibustering. Cloture is 
supposed to shut off debate. Why? We are not having extended debate. We 
are not stretching out debate, not on Interior--and not on Homeland 
Security. We are willing to vote on the amendments on the Department of 
the Interior, and vote. We may win; we may lose. I have won some; I 
have lost some. That is part of being a legislator.
  The same thing for Homeland Security; let us vote on the alternative.
  Mr. BYRD. Mr. President, will the Senator yield?
  Mr. NICKLES. I would be happy to yield.
  Mr. BYRD. Mr. President, I wish we would get on with Interior and the 
other appropriations bills. The Senate Appropriations Committee, as I 
have said many times, has reported all 13 appropriations bills. We did 
that long ago. Senator Stevens and I, and every Republican and every 
Democrat on that committee voted. We have 13 appropriations bills on 
the calendar.
  If we cannot finish the Interior appropriations bill, will the 
Senator help us to get unanimous consent to proceed to other 
appropriations bills? We could take up Senate appropriations bills. We 
don't have all of the House appropriations bills. The House 
Appropriations Committee has not reported all 13 appropriations bills. 
But we have reported all of the 13 Senate appropriations.

  Will the Senator and his side of the aisle help us to get unanimous 
consent to go to the other appropriations bills?
  Mr. NICKLES. I would be happy to respond to my good friend and 
colleague. I will help you try to get the appropriations bills done. I 
will also tell you what I told my very good friend, Senator Reid. I 
will object to dual-tracking on homeland security and appropriations 
bills simultaneously because it doesn't work. I think maybe we should 
have a little greater focus and stay on homeland security.
  I don't care if we stay all night and all weekend, this is an 
important issue. We ought to finish it.
  I will tell my friend and colleague from West Virginia that I will 
stay all night, and we will help finish these appropriations bills. I 
don't care if we have to work every weekend between now and the end of 
the year, let us do it. But I don't like this idea of dual-tracking 
unless we have a greater understanding on the Interior bill. Let us 
finish it.
  I used to manage the Interior bill. I worked with my colleague. I was 
chairman of the committee. I was chairman, and I was ranking. We did 
the Interior bill year after year, I might mention, with my colleague, 
Senator Reid, also

[[Page S8885]]

assisting on the floor. We did that bill generally in 3 days. We got it 
done. It is usually a bipartisan bill, and it would usually pass with 
90 votes.
  Mr. BYRD. Mr. President, will the Senator yield?
  Mr. NICKLES. I would be happy to yield.
  Mr. BYRD. Mr. President, Shakespeare said the Senator ``is a man of 
my own kidney.'' Some would say ``a man after my own heart.'' The 
Senator said he is willing to stay here all night and get these 
appropriations bill done. Let us do that.
  I believe the objections from the other side of the aisle on moving 
those bills is the word out of the White House. I am just thinking--I 
am presuming, some things which I have seen and heard are to that 
effect--that the word has come out of the White House. Has it come out 
of the White House to the Speaker of the other body?
  That is where appropriations bills generally originate. 
Appropriations bills generally and customarily originate in the House.
  Can the Senator inform me as to whether the word has come down from 
on high to the House to hold up those appropriations bills? The House 
has not moved those appropriations bills, and it is not because of the 
House chairman, Mr. Young. He would eagerly move those bills.
  Can the Senator elucidate on this question?
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. BYRD. I hope the Senator will have a minute at least to respond. 
Will the Senator from Connecticut yield?
  The PRESIDING OFFICER. The Senator from Connecticut controls 11 
  Mr. LIEBERMAN. Does the Senator wish unanimous consent for an 
additional moment?
  Mr. REID. Mr. President, we are not going to extend the time for the 
vote. I don't mind Senator Lieberman yielding him some of his time.
  Mr. LIEBERMAN. Mr. President, I yield the Senator a minute of my 
  Mr. NICKLES. Mr. President, I appreciate my good friend from 
Connecticut doing that.
  I just say, since I have taken all of Senator Thompson's time, I hope 
Senator Thompson, if he wishes, will be able to speak on the issue. We 
have had an interesting colloquy. And I am happy to extend that time.
  I am happy to work with my friend and colleague. I happen to be one 
who thinks the Senate does not have to wait on the House. It is 
tradition. It is not constitutional. But the Senate has not been 
setting records. Well, maybe we are setting records on Interior. We 
have been on it for 3 weeks and have not finished it. So we are not 
doing our job. Maybe the House isn't getting its job done, either. 
Hopefully, both will get it done.
  I would hope my colleague from Connecticut would yield some time to 
the Senator from Tennessee on the issue at hand. I appreciate the 
consideration of the Chair and my friends.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Connecticut is recognized.
  Mr. LIEBERMAN. Mr. President, I wish to speak very briefly, and then 
I will yield. The Senator from Nevada has withdrawn his request to 
speak. Let me say a few words.
  My friend from Oklahoma has talked about his concern that the 
substitute that the Senator from Texas, Mr. Gramm, has fashioned would 
not be ruled germane. I don't know because I have not seen it. But, of 
course, there is another alternative here, which is the normal course.
  I refer back to our Governmental Affairs Committee's deliberations on 
the bill in which, after we put our mark down, Senator Thompson, as 
ranking member, offered several amendments going to powers of the 
President to reorganize, the latitude over appropriations, obviously 
much interest in civil service, collective bargaining questions, some 
dispute over the exact powers of division of intelligence in the new 
Department that all of us agree ought to be created, but we disagree on 
what powers it should have.
  Again, I am not the Parliamentarian, but picking up on what the 
Senator from West Virginia has said, it certainly would seem to me 
there would be ample basis for whomever the Presiding Officer is at the 
time to rule that the kinds of amendments that the Senator from 
Tennessee offered in committee--which put it in issue and give the 
Senate a choice of what I think are the remaining relatively small 
number of issues in controversy--would, in fact, be ruled germane. So 
that is the way to get this moving.
  Mr. NICKLES. Will the Senator yield?
  Mr. LIEBERMAN. For a question.
  Mr. NICKLES. Just knowing postcloture, if the Senator from Tennessee 
offered the substitute section dealing with collective bargaining, 
dealing with Presidential flexibility, I can assure you--or my guess 
is--that 90 percent of those would be ruled nongermane. And that is 
just the facts of the postcloture rules in the Senate.
  I understand what you are saying. One way we can nibble, we can 
strike. We can always strike, but if we wanted to have strike-and-
insert language, most of those amendments would be ruled nongermane. 
That is the reason why I am urging my colleagues to vote no.
  Mr. LIEBERMAN. I thank my friend.
  My answer would be, again, I have not seen the exact components of 
the substitute from the Senator from Texas, but as my staff has heard 
it described, it follows pretty closely after the House bill, which, 
again, if I were in the chair I would think are germane.
  I want to yield a few moments--as much time as he would like--to the 
distinguished Senator from Nevada.
  Mr. REID. I thank the Senator.
  Mr. President, I simply want to say this. It is obvious there are 
efforts made for us to do nothing in the Senate. And that is being 
accomplished almost 100 percent because we basically are accomplishing 
  The majority leader has attempted to invoke cloture on the Interior 
bill so we could move on. We are hung up with an amendment dealing with 
firefighting, which is too bad; Neither side has 60 votes. The rules 
have been in effect for 215 years, basically, with some minor changes. 
Those are the rules of the Senate. You need 60 votes on controversial 
issues. So we cannot move on Interior. That is too bad.
  And on homeland security, the President has talked to every Senator 
in this room about the importance of that piece of legislation. Why 
can't we move on? If cloture were invoked on this, it would narrow the 
time with which we have to work on this bill. It would go to 
conference, of which the President has tremendous clout in the 
conference, and get this bill down to him.
  I am seriously thinking that there are efforts being made here that 
we don't finish this bill, and then that we, the majority, can be 
blamed for not completing the homeland security bill. We want to 
complete this bill. Even Senator Byrd, who, as everyone knows--because 
he stated it on the floor--has problems with this piece of legislation, 
signed a cloture motion.
  We all know we have to move on with this piece of legislation.
  Mr. NICKLES. Will the Senator yield?
  Mr. REID. I am happy to yield for a question.
  Mr. NICKLES. Does the Senator think it would expedite completion of 
homeland security if we allow Senator Gramm's and Senator Miller's 
amendment to be adopted, or at least be voted on? Let's have an up-or-
down vote on the Gramm-Miller substitute, let's have an up-or-down vote 
on Lieberman, and maybe a couple other amendments, and we can complete 
this bill.
  Mr. REID. Well, Mr. President, we have spent days here. People are 
blaming Senator Byrd for slowing things down. All anyone has to do, 
when Senator Byrd sits down, is move to table his amendment, or what is 
going on at the time. There has been unending stalling on this piece of 
  I repeat, the President has talked to me. He has talked to the 
Presiding Officer. He has talked to the managers of the bill. He has 
talked to Senator Nickles--everybody--about this bill. He believes this 
is important. Let's move on with it. If this bill comes out of the 
Senate, and it is not perfect, what he wants, he controls the House of 
Representatives. He has tremendous, I repeat, clout with the Senate.
  We want to get this bill done. Let's move on.
  Mr. NICKLES. Will the Senator yield?

[[Page S8886]]

  Mr. REID. I am happy to yield for another question.
  Mr. NICKLES. I don't think I heard an answer to the question. 
Shouldn't Senators Gramm and Miller be entitled to offer their 
amendment? And you also said there are some people stalling. There is 
nobody on this side of the aisle who is stalling this piece of 
legislation. And either side can move to table Senator Byrd's 
amendment. I am happy to do that. But I am going to always insist that 
our colleagues have a right to offer their amendment.
  Won't you agree with me to give Senator Gramm and Senator Miller a 
vote on their amendment?
  Mr. REID. Nobody is stopping them from having a vote on their 
amendment. Who says their amendment is not germane?
  Mr. NICKLES. Cloture would stop them from having a vote.
  Mr. REID. I would doubt that it is. But whatever are the rules of the 
Senate are the rules of the Senate.
  Mrs. FEINSTEIN. Mr. President, as this Nation wages our war against 
terrorism, I rise today in support of the Lieberman substitute 
amendment to H.R. 5005, the Homeland Security Act. We must take this 
critical step now, in a way that protects both our liberties and our 
  I commend my colleague, Senator Lieberman, and the entire Committee 
on Government Affairs for drafting such meaningful and comprehensive 
  The Government Affairs Committee reported the bill on a strong 
bipartisan vote of 12 to 5--a clear sign of substantial support. It is 
unfortunate that the President has threatened to veto this legislation.
  It fills me with a deep sense of sadness that it took the tragedy of 
1 year ago to bring us this far. The deaths of nearly 3,000 people 
showed us, beyond a shadow of a doubt, that our Government was ill-
prepared to tackle the multifaceted threat of terrorism.
  We would be doing a great disservice to the memory of those that 
perished on September 11--and to the citizens this new department will 
be sworn to protect--if we fail to adopt a more effective system to 
combat terror.
  As a member of the Senate Select Intelligence Committee and chairman 
of the Judiciary Subcommittee on Technology, Terrorism, and Government 
Information, I have been immersed in the debate on homeland security 
for a long time now.
  I believe that we need to reorganize agencies to better fight the war 
on terror and I think that the creation of a Department of Homeland 
Security is a good first step.
  This belief grew largely out of extensive hearings. In the 107th 
Congress alone, the Technology and Terrorism Subcommittee has held 16 
hearings with 79 witnesses on counterterrorism.
  Other subcommittee hearings covered narcoterrorism, seaport security, 
the National Guard, cyberterrorism, critical infrastructure, weapons of 
mass destruction, bioterrorism, biometric identifiers, and identity 
  Above all, what stood out at these hearings was the lack of 
coordination among specific agencies involved in homeland security, 
bolstering the need for fundamental reorganization of our counter-
terrorism effort.
  For example, we dealt with the problems at the National 
Infrastructure Protection Center, NIPC, the chief body for coordinating 
the Federal response to cyber-terrorism attacks.
  The hearing revealed that NIPC had strong investigative capabilities 
but was weak in analysis, warning and outreach.
  Now, under the homeland security legislation, NIPC's investigative 
responsibilities will remain at the FBI but the other functions will be 
transferred to the Homeland Security Department.
  These overall shortcomings in counterterrorism led me to introduce 
appropriate legislation.
  Following the terrorist attack on the U.S.S. Cole, Senator Kyl and I 
introduced the Counterterrorism Act of 2000. This legislation would 
have implemented a number of recommendations made by the 
congressionally-mandated National Commission on Terrorism.
  The Senate passed this Counterterrorism Act unanimously, before the 
end of the 106th Congress. Unfortunately, the House did not act on the 
bill before it adjourned.
  But we are in a dramatically different world now--and we are facing 
an enemy capable of any striking out anytime, anywhere, and by a wide 
variety of methods. The need for a Department of Homeland Security 
could not be greater.
  More important than getting it done, however, is getting it done 
  There are four key areas that I would like to address: the overall 
structure of the new department, the critical role of immigration to 
homeland security and the future of the INS, my concerns about 
intelligence sharing, the need for strong oversight over the money we 
spend fighting terrorism, and the importance of protecting our civil 
  The task before us is enormous--the largest restructuring of the 
federal government in half a century.
  It come as no surprise that this last reshuffling was in response to 
a new and unexpected war--the cold war. The Department of Defense, the 
CIA and the National Security Council were created by the National 
Security Act of 1947.
  Begun in the immediate aftermath of World War II, the restructuring 
took years of work and compromise between the executive and legislative 
branches. To think we could undertake a similar operation in a matter 
of days or weeks is simply not practical.
  We are talking about some 200,000 federal jobs, from over 20 
agencies, to be shuffled around. Add to this a large chunk of the 
federal budget--at least $40 billion, not counting transition costs.
  As we begin this massive reorganization, it is critical to do 
everything we can to stay focused and organized in the fight against 
  Nothing could be worse than if this reorganization effort distracted 
from the real work of the good people in these agencies--people who are 
continuing the difficult, complex, and ongoing fight to prevent future 
acts of terrorism.
  We must also be sure to strike an appropriate balance regarding which 
agencies to move and why.
  Nowhere is this more critical, in my mind, than with the Immigration 
and Naturalization Service.
  One of the most alarming facts about September 11 is how the 
terrorists used our visa system to enter the United States with 
impunity. They lingered here, undetected and under the radar, while 
some were even reissued visas after the attacks.

  Because of this--and because I have long believed our borders to be 
sieves--last year I introduced the Border Security and Visa Reform 
Entry Act, with Senators Kyl, Kennedy and Brownback.
  Now that this legislation is law, the Congress must work closely with 
the administration to ensure that its provisions are properly and 
timely implemented.
  The main thrust of this legislation was to prevent terrorists from 
entering the United States through gaping loopholes in our immigration 
and visa system.
  Yet there is still much more to do, because the future of the 
Immigration and Naturalization Service is critical to our homeland 
security efforts.
  To do this means ensuring that the immigration agency has the 
sufficient personnel and resources to get the job done. Without doubt, 
this is a daunting task.
  When the President first released his proposal to create a new 
Department of Homeland Security, I had major concerns about 
transferring all immigration functions into a department made up of 
more than 25 different agencies and burdened with 120-plus different 
missions. But if such a transfer is to take place, the Lieberman 
substitute would implement it in the best possible way.
  The President's proposal contained a mere two and a half pages of 
legislative language abolishing the INS and permitting the 
administration to divide the immigration system.
  The White House would divide the INS with little direction as to how 
the agency would meet its new homeland security mission, and with 
little input from Congress. It would also establish a weak executive to 
oversee the immigration functions.
  Finally, the administration's proposed new structure fails to 
adequately respond to intelligence failures at the hands of our front-
line agencies.

[[Page S8887]]

  For example, the General Accounting Office and the Justice 
Department's Office of the Inspector General has repeatedly criticized 
the INS for its failure to adequately train its officers to properly 
analyze intelligence information it collects from the field and from 
other agencies.
  Yet the administration's bill fails to create a mechanism by which 
Federal authorities can share critical information with INS more 
quickly, so that the agency's officers and adjudicators can make the 
right decisions about whom to admit and whom to deny entry into the 
United States.
  The Lieberman substitute, on the other hand, would establish two 
separate enforcement and service bureaus with clear lines of authority. 
This would ensure that: the agency's missions are straight-forward, 
that they are properly managed and staffed, and that policies handed 
down from the Director or the deputy directors of the two bureaus are 
implemented and followed in the field offices.
  The Lieberman substitute would also elevate the stature of the new 
immigration agency executive--the Under Secretary for Immigration 
Affairs--and put into place a strong agency executive.
  Right now, the Commissioner's office is too low in the Justice 
Department hierarchy to hold much weight with other federal agencies.
  It has little meaningful authority over the District Directors, who 
wield enormous power, but are difficult to hold accountable. This would 
not necessarily change under the administration's proposal.
  The Lieberman substitute would also separate the enforcement and 
service functions of the INS, but place them within the same 
  This would allow both bureaus to coordinate such functions as 
investigating visa fraud, and conducting background checks of 
applicants for visas, naturalization, other immigration benefits, and 
  I am particularly pleased that the Lieberman substitute contains the 
Unaccompanied Alien Child Protection Act, bipartisan legislation I 
introduced in January 2001.
  I also believe that this illustrates how important it is, given this 
enormous restructuring, that we be very careful not to lump every role 
of every agency under the umbrella of homeland security.
  Unaccompanied children represent the most vulnerable segment of the 
immigrant population.
  Clearly, most unaccompanied alien children do not pose a threat to 
our national security, and must be treated with all the care and 
decency they deserve, outside the reach of this new department.
  More specifically, this measure, comprising Title XII of the 
Lieberman substitute, would make critical reforms to the manner in 
which unaccompanied alien children are treated under our immigration 
  It would also preserve the functions of apprehending and adjudicating 
immigration claims of such children and repatriating a child to his 
home country when the situation warrants within the Immigration Affairs 
Agency, under the larger umbrella of homeland security.
  The unaccompanied alien child protection provisions would transfer 
the care and custody of these children to the Department of Health and 
Human Services. Its Office of Refugee Resettlement office has real 
expertise in dealing with both child welfare and immigration issues.
  These provisions would also establish minimum standards for the care 
of unaccompanied alien children; provide mechanisms to ensure that 
unaccompanied alien children have access to counsel, and have a 
guardian ad litem appointed to look after their interests; and provide 
safeguards to ensure that children engaged in criminal behavior remain 
under the control of immigration enforcement authorities at all times.
  Roughly 5,000 foreign-born children under the age of 18 enter the 
United States each year unaccompanied by parents or other legal 
guardians. Some have fled political persecution, war, famine, abusive 
families, or other life-threatening conditions in their home countries.
  They often have a harder time than adults in expressing their fears 
or testifying in court, especially given their lack of English language 
proficiency. Despite these circumstances, the Federal response has 
fallen short in providing for their protection.
  No immigration laws or policies currently exist to effectively meet 
the needs of these children. Instead, children are being force to 
struggle through a complex system that was designed for adults.
  The Immigration and Naturalization Service detains some 35 percent of 
these children in juvenile jails. There they are subject to strip 
searches, shackles and handcuffs.
  Even worse, their experiences of detention and isolation are often as 
traumatic as the persecution they fled in their home countries.
  These problems are emblematic of our immigration system. It is 
managed by a bureaucracy ill equipped to help the thousands of 
unaccompanied children in need of special protection.

  This is why I urge my colleagues to support these important measures.
  These changes would guarantee that the proposed Department of 
Homeland Security is not burdened with functions that do not relate to 
its core mission.
  Second, it would ensure that the INS dedicate itself to its central 
functions and not suffer mission overload. And finally, the move would 
ensure that the interests of unaccompanied alien children are 
  The future of the INS highlights two distinct questions, which relate 
to the larger issue of homeland security.
  First, how we protect innocent civilians, immigrants and citizens 
alike, while uprooting terrorists and preventing terrorist attack, and 
second, how we organize such a large department in a way that avoids 
duplication and inefficiency.
  With respect to this last question, the Lieberman bill is a marked 
improvement from the present situation, where more than 100 Federal 
agencies across the government play some role within homeland security, 
not to mention all 50 states and literally thousands of localities.
  On one level, success depends on how the federal merges with State 
and local government--the so-called ``first responders''--and from the 
cooperation of citizens.
  This is true on a variety of issues, from preventing possible 
attacks, through shared intelligence, to reacting to when an attack 
strikes, and also how any emergency or rescue operations are able to 
  Success also depends on the need to improve the collection, analysis 
and dissemination of intelligence on homeland security. To do this 
right, we must not side-step possible failures within the intelligence 
community that occurred before the attacks of September 11.
  Understanding past problems is key to future successes. We cannot 
afford to make the same mistakes twice, especially mistakes of such 
  Earlier this year, FBI Agent Coleen Rowley's startling testimony 
before the Senate Judiciary Committee was a real wake-up call.
  Her accounts of the many layers of bureaucracy at the FBI, and the 
many frustrations faced in reaching superiors to authorize 
investigations, point to a critical need to revamp the existing 
structure of key agencies outside the Homeland Security Department--a 
task as complicated as it is sensitive.
  It has been suggested that this new Department of Homeland Security 
is destined to failure if it cannot gain access to all relevant raw 
intelligence and law enforcement data.
  I for one agree with such a scenario. We can't be fixing major kinks 
in the system a few years down the road, in the wake of another 
intelligence failure and another nightmarish attack. We've got to get 
it right, as best as possible, the first time around.
  This will require answers to some tough questions.
  For starters: What kind of intelligence would the new department get? 
And what recourse will it have if it does not get the information it 
  Both of these have yet to be adequately answered.
  I want to emphasize a point that many commentators have overlooked: 
billions of taxpayer dollars are at stake in this debate over homeland 
  As a member of the Appropriations Committee, I have studied what we 
spend on combating terrorism and will spend in the near future--are the 
numbers are staggering. We must ensure

[[Page S8888]]

that this money is spent properly and not wasted.
  According to the preliminary results of a General Accounting Office 
investigation of the terrorism budget requested by me, Senators Kyl, 
Graham, and Shelby, Congressmen Sensenbrenner and Conyers, the 
combating terrorism budget increased 276 percent in just 1 year--and is 
going to increase even more. Consider the following figures: a $40 
billion supplemental appropriation bill was passed shortly after 
September 11 last year; the August 2002 emergency supplemental amounts 
to $29 billion; and the fiscal year 2003 budget request is $45 billion.
  The GAO also found that counterterrorism missions are spread over 
multiple agencies and appropriations, but no real cross-agency 
terrorism budget exists. Neither the President nor Congress has a clear 
idea of how much we are spending to fight terrorism.
  The GAO recommends that extensive interagency coordination and 
oversight is needed not just to determine how much we are spending to 
fight terrorism but to figure out where our priorities are.
  In addition, the GAO found a number of areas of potential overlap--
areas where money seems to be wasted through duplication of efforts.
  These areas cut across every agency and include law enforcement, 
grant programs for State and local government, weapons of mass 
destruction training, critical infrastructure protection, research and 
development to combat terrorism, and terrorist-related medical 
  The creation of a new Homeland Security Department alone will do 
nothing to solve these problems. Simply moving agencies into a new 
organization is insufficient to minimize duplication and waste.
  We need to be sure that the President, his Homeland Security Adviser, 
and the Secretary of the new department work with Congress to assist 
agencies in consolidating terrorism programs, eliminating duplicate 
efforts, and coordinating complimentary agency functions.
  The issue of how best to ensure oversight over funds to combat 
terrorism does not stand in the way of our getting this legislation 
passed. The same cannot be said for the labor provisions.
  As we know, these provisions remain the major barrier between the 
White House and Congress.
  I do not see any inherent clash between collective bargaining rights 
for Federal employees and homeland security.
  And I support civil service protections at the new Department of 
Homeland Security.
  I support management flexibility, and I think that the Lieberman bill 
provides it. Under the bill, the new Secretary will have broad powers 
to hire and fire whom he wants.
  The bill also includes a number of new flexibilities in recruitment, 
hiring, training, and retirement.
  The Lieberman bill gives the administration flexibility in these 
areas. While the collective bargaining rights of federal employees in 
the new department will be grandfathered in, the President will be free 
to strip them of their collective bargaining rights if the job of those 
employees changes.

  To me, I could not imagine a more ill-timed attack on the Federal 
employee unions. After all, Department of Defense civilians with top 
secret clearances have long been union members and their membership has 
not compromised national security.
  And many of the heroes of September 11 were unionized. The New York 
City firefighters who ran up the stairs to their deaths did not see any 
conflict between worker rights and emergency response.
  At a time of such massive restructuring of the Federal Government, we 
must maintain as much continuity as possible. By weakening workers' 
benefits, the government risks losing many highly qualified individuals 
to the private sector. There is also a large percentage of workers who, 
if push comes to shove, can option for early retirement.
  This is no time for the Federal Government to suffer a so-called 
``brain drain,'' and be forced to train individuals from scratch.
  The last thing we want to do in the middle of our war on terrorism is 
lose experienced employees on the front lines of this war--employees at 
the Coast Guard, the Department of Defense, the Federal Emergency 
Management Agency, the Border Patrol, the Federal Aviation 
Administration, and other agencies that work around the clock to 
prevent another attack.
  In closing, I would like to emphasize my belief that, in this age of 
uncertainty, in these uneasy times, the United States deserves a 
unified, streamlined, and accountable Department of Homeland Security.
  Equally important, is the need to guarantee that our efforts to 
combat terrorism, much of which will come under the jurisdiction of 
this new department, remain consistent to our democratic values and our 
commitment to an open and free society.
  We must protect legal immigrants and innocent children, who have no 
part in this war. We have always been a nation of immigrants--and to 
change this fundamental truth would undermine one of the pillars of our 
  If we fail on either of these fronts, the forces of terror would 
triumph without another attack.
  I believe that the Lieberman substitute amendment accomplishes this 
in a thorough and just way. A Department of Homeland Security under its 
guidelines will go a long way in making us more secure from terrorist 
  I stand in support the Lieberman bill. And I remain confident that 
the executive and legislative branches will be able to work out any 
existing differences.
  We must be patient and thorough, and we must get this done right. 
Present and future generations depend on us.
  Mr. LIEBERMAN. Mr. President, how much time is remaining?
  The PRESIDING OFFICER. Three minutes.
  Mr. LIEBERMAN. Senator Thompson asked me to yield him up to a minute, 
and then I ask that Senator Akaka, a member of our committee, be 
allowed to close the debate with the remainder of our time.
  The PRESIDING OFFICER. The Senator from Tennessee is recognized.
  Mr. THOMPSON. Mr. President, I thank my friend from Connecticut.
  The Senator from Oklahoma is exactly right. I go back to what I said 
when I made my opening statement a few minutes ago. The bottom line is, 
the important issues of national security authority for the President, 
management authority for the new Secretary, what kind of intelligence 
component we are going to have in this bill, what kind of 
reorganization authority we are going to give the President--all that 
would be wiped out if this passed. None of that is going to be germane.
  Take the management part, for example. To be germane, it would have 
to be narrowing. If we struck the management structure from the current 
bill, that perhaps would be germane, but we don't do that. We suggest a 
different kind of management structure. I don't see how in the world 
that could be considered germane.
  What it would do would be to take that whole debate of management 
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. THOMPSON. And do away with it. I respectfully suggest that is not 
a good idea.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Hawaii is recognized.
  Mr. AKAKA. Mr. President, today I rise to discuss the current 
flexibilities available to agencies in the Federal Government and urge 
my colleagues to vote for cloture on this bill. The President has 
called for flexibility to manage the workforce. I agree and have said 
repeatedly that we must have the right people with the right skills in 
the right places. I have long been a proponent of providing agencies 
with tools they need to better manage their workforce. I agree with the 
President that agencies need flexibilities to carry out agency 
missions. However, according to David Walker, Comptroller General of 
the United States, agencies currently have many of the flexibilities 
they need. Current law allows managers to remove a Federal employee 
from his post and suspend him immediately without pay if the head of 
the agency finds that action necessary in the interests of national 
security, 5 USC 7532;
  Swiftly reassign Federal employees to fight terrorism and reassign 

[[Page S8889]]

employees to similarly graded positions or detail them from other 
agencies or within the Department and the employees who refuse 
reassignments or details may be terminated, 5 CFR part 335;
  Retrain, reassign and reshape their workforce;
  Choose whether to fill a vacant position from the outside or the 
inside, eliminate positions due to changes in programs, lack of 
funding, reduction in workload, reorganizations, privatization, 
``divestiture,,'' or contracting out; establish personnel ceilings, or 
decide to re-employ a returning worker; determine the job or jobs to be 
eliminated in the context of a reduction in force, and unilaterally 
reassign employees to vacant positions in the agency;
  Have additional management rights including: promotions; adverse 
actions, suspensions for 14 days or less; suspension for more than 14 
days; removals; demotions, reductions in grade or pay; permit the 
return of a career appointee from the Senior Executive Service, SES to 
the GS or another pay system; the power to reassign, transfer, and 
detail or fire of a career SES employee; determine the substance of a 
position description, its performance standards of an employee's 
position, and award, or not award, performance payments;
  Decide whether employees have earned pay increases known as ``step'' 
increases, based upon performance, and are able to grant employees 
additional financial ``incentive awards'' such as performance-based 
cash awards, special act or service awards, and quality step increases; 
  Decide whether to award recruitment, retention, and relocation 
bonuses worth up to 25% of base salary.
  In addition, the Lieberman substitute provides additional 
flexibilities Governmentwide. The Voinovich-Akaka amendment, which was 
included in the Lieberman substitute unanimously by the Governmental 
Affairs Committee, allows agencies to hire candidates directly and 
bypass the current requirements under Title 5 once OPM has determined 
that there is a severe shortage of candidates for the position.
  This provision allows agencies to streamline its staffing procedures 
by authorizing use of an alternative method for selecting new employees 
instead of the traditional rule of three. This will make the Government 
more competitive with the private sector by improving the Federal 
hiring process. Under the new system, the agency may divide applicants 
into two or more quality categories based on merit and select any 
candidate from the highest category while maintaining veterans hiring 
  The amendment provides Governmentwide authority for Voluntary 
Separation Incentive Payments and Voluntary Early Retirement Authority, 
two provisions currently in place in limited situations. The expansion 
of this authority would give agencies the flexibility required to 
reorganize the workforce should an agency need to undergo substantial 
delayering, transfer of functions, or other substantial workforce 
reshaping. The provision would allow agencies to reduce high-grade, 
managerial, or supervisory positions, correct skill imbalances, and 
reduce operating costs without the loss of full time positions.
  To address the impending human capital crisis, the government will 
need to retain Federal employees with institutional knowledge. To 
assist in this effort, the amendment increases the cap on the total 
annual compensation of senior executive, administrative law judges, 
officers of the court, and other senior level positions to allow career 
executives to receive performance awards and other authorized payments.
  The Akaka-Voinovich amendments also helps ensure that we have a 
world-class Federal workforce and can retain talented Federal employees 
who wish to continue their education. This provision reduces 
restrictions on providing academic degree training to Federal employees 
and requires agencies to facilitate online academic degree training.
  As a result of the current flexibilities and those provided in the 
Lieberman substitute, it is curious why the President continues to 
demand additional flexibilities. As I have previously stated, studies 
indicate that the flexibilities at the Federal Aviation Administration 
and the Internal Revenue Service have not provided the intended results 
and employee morale is very low. With such uncertainty in additional 
flexibilities and the great importance of this new agency, I question 
the need for such a broad grant of power. I believe the existing 
flexibilities and the Voinovich-Akaka provisions provide agencies the 
tools that they need to manage effectively their workforce. I urge my 
colleagues to support the Lieberman substitute and vote for cloture.

                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order, the clerk will 
report the motion to invoke cloture.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close the debate on the Lieberman 
     substitute amendment No. 4471 for H.R. 5005, Homeland 
     Security legislation.
         Jean Carnahan, Herb Kohl, Jack Reed (RI), Richard J. 
           Durbin, Kent Conrad, Paul Wellstone, Jim Jeffords, Max 
           Baucus, Tom Harkin, Harry Reid (NV), Patrick Leahy, 
           Jeff Bingaman, Barbara Boxer, Byron L. Dorgan, Mark 
           Dayton, Debbie Stabenow, Robert Torricelli, Mary 
           Landrieu, Joseph Lieberman, Robert C. Byrd.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call under the rule is waived.
  The question is, Is it the sense of the Senate that debate on the 
Lieberman amendment No. 4471 to H.R. 5005, an act to establish the 
Department of Homeland Security, and for other purposes, shall be 
brought to a close?
  The yeas and nays are required under the rule.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. NICKLES. I announce that the Senator from Idaho (Mr. Crapo) is 
necessarily absent.
  The PRESIDING OFFICER (Mr. Edwards). Are there any other Senators in 
the Chamber desiring to vote?
  The yeas and nays resulted--yeas 50, nays 49, as follows:

                      [Rollcall Vote No. 218 Leg.]


     Nelson (FL)
     Nelson (NE)


     Smith (NH)
     Smith (OR)

                             NOT VOTING--1

  The PRESIDING OFFICER. On this vote, the yeas are 50, the nays are 
49. Three-fifths of the Senators duly chosen and sworn not having voted 
in the affirmative, the motion is rejected.
  The Senator from Connecticut.
  Mr. LIEBERMAN. Mr. President, I ask unanimous consent that Senator 
Reed of Rhode Island be recognized for up to 10 minutes to speak as in 
morning business; that when he has completed his remarks, a quorum call 
be entered, and that when the quorum call is ended, the Senator from 
Connecticut, as manager of the pending legislation, be recognized.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The PRESIDING OFFICER. The Senator from Rhode Island.