Mr. President, I rise to discuss the critical distinctions between the legislation as reported out by the Governmental Affairs Committee and the House passed bill creating a Department of Homeland Security.
I think it is wise to proceed cautiously when creating a mega-Department of Homeland Security which would encompass approximately 22 agencies and involve about 170,000 employees. We all recognize that we face new threats, and we all recognize the need to better coordinate efforts to protect Americans from these threats. However, it is also critically important, as the distinguished senior Senator from West Virginia has repeatedly noted, to consider carefully what is being proposed to ensure that any legislation enhances our security and does not detract from it.
William Safire describes in Thursday's New York Times how the House proposed Homeland Security Act will create a computerized dossier on the private life of every American citizen. I urge my colleagues to read Mr. Safire's prescient column entitled, "You Are a Suspect". His arguments are one reason why we should proceed cautiously to creating a Department of Homeland Security.
The President compares the reorganization of agencies within the federal government into a new Department of Homeland Security to the creation of the Department of Defense after World War II. But the two departments that were combined to create the Department of Defense – the Department of the Army and the Department of the Navy – had the same primary mission – to defend the United States. They had similar cultures and management priorities. This is not true of the proposed new Department of Homeland Security. Many of the agencies, such as the Coast Guard, the Immigration and Naturalization Service, and the Federal Emergency Management Agency, have varying missions, priorities and cultures.
Any far-reaching change to the structure of the federal government demands thorough and open discussion. Senator Lieberman has done a great service to his country by holding hearings and debating extensively the structure of such a department. But there needs to be further debate and amendment to the proposal offered by the Republicans.
Let me make a dozen points as to why the legislation reported out by our Governmental Affairs Committee, which was subjected to numerous public hearings, represents an improvement over legislation passed by the House last night and why the House proposal – supported by the President – is seriously flawed.
First, the House proposal raises serious concerns about the collection, use, and dissemination of private information – the issue addressed by Mr. Safire. It gives the Secretary broad access to information relating to investigations and places restrictions on the authority of the Inspector General to conduct inquiries into the new department's operations. Our Committee substitute corrected this oversight by creating both a strong Civil Rights Officer and a strong Chief Privacy Officer.
The Privacy Officer would assist the Department with the development and implementation of policies and procedures to ensure that privacy considerations and safeguards are incorporated and implemented in programs and activities, and that information is handled in a manner that minimizes the risks of harm to individuals from inappropriate disclosure. Such officers are necessary to protect Americans from encroachments on their civil liberties.
The Committee-reported legislation created a powerful civil rights officer, ensuring compliance with all civil rights laws, coordinating with the Administration, assisting in the development and implementation of civil rights policies, and reporting to the Inspector General on matters warranting further investigation. In contrast, the new bill just passed by the House would only require the Civil Rights Officer to review and assess alleged abuses and report to Congress. In the House bill the Secretary appoints the officer and in the Governmental Affairs Committee-reported bill the President appoints and the Senate confirms the officer, ensuring greater accountability. The Committee alternative worked to ensure that civil rights were not violated in the first instance.
The threat of a "Big Brother" new department cannot be over-emphasized. With the President proposing programs like the Terrorism Information and Prevention System (Operation TIPS), a national program to encourage volunteers to report suspect activities to the Department of Justice, and the Department of Defense's new "Total Information Awareness," we need strong protections against violations of Americans' privacy and civil rights. The first defense of our freedom comes from a system with checks and balances. The House proposal, supported by the President, does not contain sufficient checks and balances.
Second, under the first House-passed bill and the President's original proposal, whistleblowers were not protected. Merit Systems Protection Board (MSPB) appeal rights as well as Office of Special Counsel (OSC) enforcement were not included. I am pleased to say that under the proposal before us today, whistleblowers retain most of their rights. However, the bill does not go far enough. Due to the waiver of collective bargaining rights, third-party arbitration may not be protected for those federal employees who are union members and blow the whistle. Third party arbitration is an effective way to resolve whistle blower cases due to the hostile decisions of the Federal Circuit.
Third, the Administration proposal transfers the Transportation Security Agency (TSA) into the new department. Baggage screeners are our first line of defense against terrorism on our airlines, and they need to have the same protections as our border patrol agents, INS employees, and custom inspectors so that they can come forward to disclose risks to our public health and safety. The Committee's bill, as a result of an amendment offered by Senator Levin and myself, gave full whistleblower rights to baggage screeners and their supervisors and to contract screeners. This is something that the House proposal fails to do.
Fourth, the new Administration-supported bill gives minimal assurances that non-homeland security functions in the 22 agencies to be absorbed in the new department will be preserved and not eliminated or diminished. The Committee's amendment – which I offered with Senator Carper – required that all non-homeland security functions of each agency be identified, along with the resources needed to preserve these functions, and the additional changes needed to ensure that non-homeland security functions would not be diminished. The new proposal drops this critical reporting requirement. In fact, the new bill removes all reports to Congress which would allow Congress to monitor closely the creation of the new department and to ensure vital non-homeland security functions are preserved.
Fifth, the Committee-reported bill provided critical management guidance to the development of an effective homeland security mission. Agencies need specific guidance on how to achieve success. There are over 40 federal agencies with homeland security missions - some to be within the new department but others to remain outside. For many, homeland security is a new responsibility that must be added to existing missions. Agencies will need to rationalize their new homeland security missions with their existing responsibilities. The Committee's amendment provided for a process for ensuring that this occurs. The House proposal does not.
Sixth, the House passed bill creates a new Undersecretary for Information Analysis and Infrastructure Protection with two subordinate directorates, including one for intelligence which is given extraordinary access to sensitive information, both domestic and foreign. Under the House formulation as supported by the President, the new Secretary can trump the authority of the Director of Central Intelligence. The new directorate will duplicate work already being performed by the CIA's Counter Terrorism Center. Furthermore, Section 202 of the President's bill requires all agencies to provide all information to the new Department, including information which might pertain to intelligence sources and methods, without the Secretary even having to request that information. This gives this new office unprecedented access with few checks and balances, suggesting that the new office may have the capability to intrude to an extraordinary extent into the private lives of individual American citizens. These are very worrisome developments. The new formulation risks endangering our individual, as well as our national, security. Senator Thompson, Senator Lieberman, Senator Levin and I had worked out an amendment which was contained in the Committee bill. This amendment should have been accepted by the President. I am deeply troubled concerning the Administration's new mission for the department's intelligence directorate.
Seventh, the latest proposal does not address the serious shortcomings across the federal government in communicating security threats to the public. The American people are confused and frustrated by threat advisories without direction and repeated statements by the Administration that future terrorist attacks are inevitable. The Committee bill ensured that the Secretary of the new department worked with state and local officials to develop more effective alert systems, more useful warnings, and improved communication with the public and private sector. In short, the Governmental Affairs Committee's legislation would have empowered the American people to play a role in the war on terrorism.
Eighth, this new proposal transfers the Plum Island Animal Disease Center from the Department of Agriculture to the Department of Homeland Security. However, many potential agriculture terrorism diseases, such as anthrax, are not studied at Plum Island. Rather than pulling off one piece of the Department of Agriculture's much needed and underappreciated laboratory network, the Governmental Affairs Committee alternative left Plum Island where it was and instead ensured coordination and consultation between the Department of Homeland Security and Agriculture on bioterrorism research priorities.
Ninth, the House proposal does not address serious shortfalls in emergency preparedness and response capabilities for agricultural terrorism. The Lieberman alternative acknowledged the importance of agriculture to our national economy and the dangers that an infectious animal or plant disease could pose to human health, rural America, and our nation's economy. A large-scale agricultural disease outbreak, whether of natural or deliberate origin, will require rapid and coordinated efforts by the Department of Agriculture, the Federal Emergency Management Agency, the Environmental Protection Agency, the Departments of Health and Human Services, Transportation, Defense, and Justice, and local and State emergency managers. The Committee's amendment ensured that agricultural health diseases were considered in security assessments and that the animal health and agriculture communities would be included in planning, training, and response activities.
Tenth, in the name of flexibility, the President's initial proposal waived all of the provisions of Title 5 leaving federal employees without protection from discrimination or whistleblower retaliations. The House proposal maintains most of Title 5; however, it allows for the waiver of provisions affecting collective bargaining rights and appeal rights. One of the key factors to the so-called success of the Federal Aviation Administration (FAA) and the Internal Revenue Service (IRS), two agencies that have managerial flexibilities, is the strong role federal labor unions play in the shaping of the personnel system and in resolving employee disputes through third-party arbitration. This third-party arbitration is even more critical since cases involving coercion to participate in political activity, violations of veterans preference rights, giving unlawful preference or advantage to any employee, or other prohibited personnel practices can no longer be appealed to an independent body such as the Merit Systems Protection Board (MSPB). The personnel system at the FAA removed MSPB appeal rights in 1996 only to have them reinstated by Congress in 2000 at the urging of federal employees and managers.
While the merit system principles are designed to ensure that federal employment is efficient, fair, open to all, and free from political interference, the civil service rules of Title 5, reinforced by collective bargaining rights, provide the framework for implementing and enforcing merit principles. Without such laws in place, the principles we all strive for cannot be reached. The Governmental Affairs Committee's reported bill preserved all of Title 5, protected collective bargaining rights, and provided additional flexibilities government-wide.
Some 25 years ago, the Civil Service Reform Act (CSRA) of 1978 responded to the same issues confronting our government today. The Act established the principles of openness and procedural justice that define the civil service today. It created the Merit Systems Protection Board and the Office of Special Counsel to protect the rights of federal employees. The Federal Labor Relations Authority was created to oversee labor-management practices. The Act provided a statutory basis for the collective bargaining rights of federal workers. It prohibited reprisals against employees who expose government fraud, waste and abuse. Those in the federal workforce demonstrate their loyalty and dedication – not just to their employer – but to their country every day. On September 11th, the federal workforce responded with courage, dedication, and sacrifice. Why is the President repaying their sacrifice by undermining their rights and our civil service by proposing these changes?
Eleventh, the House legislation fails to protect veterans by allowing the waiver of Chapter 77 of Title 5 relating to appeals. This would make veterans go to an agency management-operated process to challenge anti-veteran personnel actions by the same agency management. Under current law, veterans who believe that they have been denied a position or have been subject to a "designer" Reduction-In-Force (RIF) action in violation of veterans' preference requirements can challenge such wrongful actions through the Merit Systems Protection Board (MSPB) or through a union grievance procedure. This will no longer be possible under the House bill. The Committee's bill would have preserved MSPB review of veterans' preference complaints. Ironically, as we are in the midst of a war on terrorism and have authorized a war against Iraq, the Administration is weakening veterans' preference rights. This is fundamentally wrong.
Twelfth, the House proposal and the Governmental Affairs Committee-reported bill include provisions protecting the confidential sharing of critical infrastructure information. With cyber attacks on the rise, government and industry leaders have been seeking a way to facilitate the sharing of information related to cyber vulnerabilities and attacks. Sharing such information is important because 85 percent of the nation's infrastructure is controlled by private utility, telecommunications, or other similar companies. Despite the need to facilitate information sharing, I question the extent to which such information will be protected and the impact of such protections on environmental and public health laws.
In general, the owners and operators of critical infrastructure are concerned about the type and scope of information they are being asked to submit to the government. This data deals with vulnerabilities, incidents, and remedies which, if made available to business competitors or to the general public, could compromise their competitive position, expose them to liability, disclose sensitive information to terrorists and others who might wish to disrupt the function of their infrastructure, or harm their public relations.
However, current law provides adequate protection to the private sector for disclosing this type of information to the federal government. Nonetheless, industry has expressed its concern over non-binding case law that could be overturned. As such, the Governmental Affairs Committee bill provided a narrow exception to the Freedom of Information Act which closely follows current law. This provision was designed to facilitate the sharing of information with the federal government, while at the same time providing citizens with necessary information on public health and environmental issues. The Committee bill was careful not to provide an inadvertent safe harbor for those who violate federal health and safety statutes.
For these reasons, I believe that the Governmental Affairs Committee's legislation offered a more effective approach to guarding homeland security than the proposal advocated by the President who recently stated that "our job -- our government's greatest responsibility is to protect the American people. " I agree with the President, but I do not agree that by voting for the President's flawed proposal we will be adequately protecting the American people.
