A NEW DEPARTMENT OF HOMELAND SECURITY
September 12, 2002

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 lives.

I would like to commend my colleague, Senator Lieberman, and the entire Committee on Government Affairs for drafting such meaningful and comprehensive legislation.

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 one year ago to bring us this far. The deaths of nearly three thousand people showed us, beyond a shadow of a doubt, that our government was ill-prepared to tackle the multi-faceted 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 107^th Congress alone, the Technology and Terrorism subcommittee has held 16 hearings with 79 witnesses on counter-terrorism.

Other subcommittee hearings covered narcoterrorism, seaport security, the National Guard, cyber-terrorism, critical infrastructure, weapons of mass destruction, bioterrorism, biometric identifiers, and identity theft.

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 counter-terrorism led me to introduce appropriate legislation.

Following the terrorist attack on the U.S.S. Cole, Senator Kyl and I introduced the Counter-terrorism 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 Counter-terrorism Act unanimously, before the end of the 106^th 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 right.

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 servants.

OVERVIEW

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 terrorism.

Mr. President, 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.

IMMIGRATION

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 with120-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.

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 Directorate.

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 entry.

Unaccompanied Children

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 system.

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.


• 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 protected.

INTEGRATION AND INTELLIGENCE SHARING

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 attacks
• 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 respond.

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 consequence.

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 needs?

Both of these have yet to be adequately answered.

BUDGET OVERSIGHT

Mr. President, I want to emphasize a point that many commentators have overlooked: billions of taxpayer dollars are at stake in this debate over homeland security.

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 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, Senator Kyl, Senator Graham, Senator Shelby, Congressman Sensenbrenner, and Congressman Conyers, the combating terrorism budget increased 276 percent in just one 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 FY 2003 budget request is $45 billion.

The GAO also found that counter- terrorism 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 research.

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 Advisor, 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.

LABOR PROVISIONS

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.

CONCLUSION

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 society.

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 attacks.

Mr. President, 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.