Homeland Security Geographic Information Act of 2004

Mr. President, I rise today to discuss this body's efforts to reform the U.S. intelligence community.

My distinguished colleagues from Maine and Connecticut have worked hard to develop legislation to address some of the executive branch structural reforms recommended by the 9/11 Commission. To be sure, there is a need to change, the way we do business if we are to effectively battle terrorist organizations, like al-Qaida, and protect the American people from another devastating terrorist attack. But I believe that many provisions of the bill before us are tackling the problem from the wrong angle.

I think it is important that we move forward with deliberate speed. Past efforts, like the Goldwater-Nichols Act of 1986, should set an example. That overhaul of the Defense Department took several years from start to finish. It was a huge undertaking, as is our current effort to reform the intelligence community. The 9/11 Commission did a good job of cataloguing and critiquing the failures of 9/11--I believe it spent some 18 months on that effort. But it spent far less time developing the recommendations to solve the problems. We are now acting on those recommendations over a period of less than 2 weeks on the Senate floor. It is important to ask whether, in the middle of a war, it is wise to attempt such a fundamental reorganization with a deadline of October 8 for Senate consideration, a conference and then adoption of a conference report.

Nevertheless, I will support moving this legislation forward, as the President has strongly urged us to do, so that we may try to resolve outstanding issues in the Senate-House conference committee. As Congress prepares its final intelligence reform bill to be sent to the President, we must be especially careful to do no harm. I will continue to press the issues about which I am concerned during the conference.

Today I plan to discuss: No. 1, how the 9/11 Commission recommendations fail to thoroughly address the problems it identified; No. 2, deficiencies in the Governmental Affairs Committee proposal; and No. 3, what I think we should be doing instead--focusing on intelligence community reform, instead of just reorganization. I will also touch very briefly on two additional areas in which I had proposed amendments: visa reform, and tools and resources for fighting terror.

Former Secretary of Defense James Schlesinger identified one of the key problems with the 9/11 Commission recommendations:

[The Commission] has . . . proposed a substantial

reorganization of the intelligence community--changes that do

not logically flow from the problems that the Commission

identified in its narrative.

The Commission identified four categories of failures by the U.S. Government that ultimately led to the attacks of September 11, 2001: imagination, policy, capabilities, and management. After reviewing the 9/11 Commission's narrative of these failures and studying its 41 recommendations to prevent future such failures, I am hard pressed to see what most of the recommendations have to do with the problems identified.

I will briefly touch on each of these broad problems identified by the Commission and assess how they will be addressed by both the Commission and later the Senate's legislation.

First, lack of imagination. I agree that this problem was a significant contributor not only to the failure of intelligence community to predict the 9/11 attacks, but also the vast majority of the intelligence failures that have plagued our intelligence community over the past 20 years. A lack of imagination is simply an extension of the much broader and more pervasive cultural problems such as risk aversion, group think and a lack of competitive analysis that continue to hamper our intelligence and law enforcement agencies. I will deal with these problems in more detail later; but it is clear that none of the Commission's recommendations or this bill's provisions begin to address this culture problem; and, in fact, one recommendation could substantially increase risk aversion, a problem exacerbated by the bill's redundant provisions piling on layers of civil liberties and privacy review.

The Commission itself notes that ``Imagination is not a gift usually associated with bureaucracies,'' and so it is ironic that Commission proposes to create an even more bureaucratic intelligence structure. Chairman Kean and Vice Chairman Hamilton contend that an empowered NID will foster competitive analysis and quash group think because that individual will draw on the perspectives of all the intelligence agencies, rather than just the CIA, as the DCI is now more likely to do.

But a convincing case can be made that the creation of national intelligence director with budgetary authority over most of the intelligence community could actually exacerbate the community's lack of imagination. Under such a centralized system, it is far more likely that agencies, like DHS's Information Analysis office, will be inclined to provide a commonly accepted view because the NID will control their budgets. As such, they will lack the protection that their previous patron--the Department of Homeland Security, in this case--provided them. Risk aversion and group think are, therefore, likely to become even more widespread problems.

The second failure identified by the Commission is one of policy. Here the report faults not the intelligence community, but political leaders, including Members of Congress, for failing to act even when there was a clear threat. Terrorists had demonstrated time and time again that they were at war with us: in 1993 at the World Trade Center; in 1995 at a U.S. military barracks in Saudi Arabia; in 1998 at the U.S. Embassies in Kenya and Tanzania; and in 2000 with the bombing of the USS Cole. Almost a decade of attacks resulted in little more than a single cruise missile strike that destroyed a pharmaceutical plant.

This failure of decisionmaking really calls for a fix that can't be legislated--good leadership.

The Commission makes a number of related recommendations on how to fight the war on terror, with the goal of making another attack less likely. These range from the obvious, ``make a long-term commitment to Afghanistan,'' to the irrelevant and unwise, declassifying the overall intelligence

budget. On the whole, however, most of recommendations are already being implemented in some fashion, and have been underway since shortly after the attacks. I commend to my colleagues a fact sheet prepared by the White House detailing its implementation of the majority of the 9/ 11 Commission's recommendation.

On a more specific level, one area where not enough work has been done is that of terrorists' travel. The Commission correctly identifies the importance of the problem arguing, ``[f]or terrorists, travel documents are as important as weapons,'' and I am, therefore, surprised that the Commission and the committee have decided to put that issue on the backburner. I will return to this issue in more detail shortly, but it is one area where Congress can make an important contribution to U.S. security and we should not abdicate that responsibility.

The third failure is one of capabilities. It is here that the 9/11 Commission highlights numerous glaring weaknesses in how the intelligence community shared information, prepared for potential attacks and planned for U.S. responses. The Commission recommends improvements in information sharing and the parts of this legislation that seek to implement these are important.

Regardless of how we ultimately decide to organize the intelligence community, it is important that we improve and streamline information sharing. Congress has already taken some important steps toward that objective. For example, the PATRIOT Act, enacted shortly after the September 11 attacks, improved information sharing by breaking down legal barriers between intelligence and law enforcement, but it is clear we will not be able to make the Patriot Act provisions permanent in this bill.

Unfortunately, the 9/11 Commission overlooks the fact that solving the capabilities problem requires far more than just improving the sharing of information. The problem extends beyond what intelligence is available to an analyst at any given time. The 9/11 Commission, the Joint House-Senate Inquiry into the 9/11 attacks, and the recently completed Senate Select Committee on Intelligence investigation into pre-war intelligence on Iraq all point to far deeper deficiencies. They identify core cultural problems. Indeed, too often the right information is not collected due to, among other things, excessive risk aversion, and analysis of the information is not adequately questioned to ensure that group think has not replaced sound judgment.

The Commission focused on only one recommendation for fixing a laundry list of problems with the CIA's collection and analysis, and only one recommendation on improvements to the FBI's intelligence capabilities. On the other hand, the Commission devoted three recommendations to protecting civil liberties, though none is designed to prevent a future attack.

The last failure identified by the Commission is one of management. It is this failure that leads the Commission to recommend the creation of the National Intelligence Director. The report highlights the inability of then-DCI George Tenet to mobilize the entire intelligence community after he issued a memo stating, ``We are at war'' with terrorists. However, the 9/11 Commission's report states that the DCI's memo had ``little overall effect on mobilizing the CIA.'' If even the CIA, where the Director has complete budgetary and line control, did not respond to the DCI's memo, we should not be confident that simply putting someone at the top of a new organizational chart is the panacea that some claim.

It warrants noting that the 9/11 Commission details an example, from before 9/11 and the changes that followed, where the intelligence and law enforcement communities were able to mobilize, break down stovepipes and information was shared ``widely and abundantly.'' This example--termed the ``Millennium Exception'' by the Commission--focuses on the last weeks of December 1999, when the government ``acted in concert to deal with terrorism.'' The Government's approach to this threat, demonstrate the power of strong leadership and commitment, despite what some call a disjointed intelligence organization.

Too often problems of management have less to do with organizational structure, and more to do with the managers themselves. I fear that we are rushing to implement sweeping organizational changes because it is the easy thing to do, not because it is necessarily the right thing to do. In the meantime, the hard work of changing the culture of the community seems to have been pushed to the side.

The Senate is currently considering a reorganization package that contains a number of the 9/11 Commission's 41 recommendations. Among the most significant, the bill establishes a Senate-confirmed national intelligence director with strong budget, personnel, security, and other authorities; creates a national counterterrorism center, NCTC, to integrate intelligence capabilities and develop joint counterterrorism plans; redefines the National Foreign Intelligence Program as the National Intelligence Program--which includes the national collection agencies within the Defense Department, NSA, NGA, and NRO; and contains provisions that require the establishment of an information sharing network.

The bill is called the National Intelligence Reform Act of 2004. But it does not reform the intelligence community; it reorganizes it. It does not get at the fundamental problems in the intelligence community identified by the 9/11 Commission and the other intelligence investigations and inquiries over the last several years. And, unfortunately, in at least one glaring respect, it violates the first rule of medicine and legislating in that it does do harm. Moreover, even if the reshuffling of bureaucracy can ultimately be made to work, doing so now, while our country is at war, makes it very hard to supply our strategists, planners, and warfighters the information they need, when they need it.

I have taken under careful advisement the cautious tone of many former and current officials. For example, in his testimony to the Senate Armed Services Committee on August 17, 2004, Secretary of Defense Donald Rumsfeld stated:

In pursuit of strengthening our nation's intelligence

capabilities, I would offer a cautionary note. It is

important that we move with all deliberate speed; however,

moving too quickly risks enormous error . . . And we are

considering these important matters while waging a war.

The Center for Strategic and International Studies, CSIS, recently released a statement, signed by an experienced group of former officials, urging similar caution. The statement was endorsed by: former Senators David Boren, Bill Bradley, Gary Hart, Sam Nunn, and Warren Rudman; former Secretaries of Defense Frank Carlucci and William Cohen; former Deputy Secretary of Defense John Hamre; former Director of Central Intelligence Robert Gates; former Secretary of State and National Security Advisor Henry Kissinger; and former Secretary of State George Shultz. It said:

Rushing in with solutions before we understand all of the

problems is a recipe for failure.

In his testimony, Secretary Rumsfeld discussed in detail his concerns about how intelligence community reorganization could potentially adversely affect the Defense Department. He expressed his strong reservations about the national collection agencies--the NSA, NGA, and NRO--being removed from the Defense Department, where they are now located, and aligned under the direct leadership of the national intelligence director. He stated:

``We wouldn't want to place new barriers or filters between

the military Combatant Commanders and those agencies when

they perform as combat support agencies. It would be a major

step to separate these key agencies from the military

Combatant Commanders, which are the major users of such

capabilities.

The Defense Department worked tirelessly in the decade after the first gulf war to ensure that the speed and scope of intelligence support to military operations would be improved for future conflicts. It was General Schwartz kopf's view that the national intelligence support during Desert Storm was not adequate. Now, as we have seen from the success of our military operations in Afghanistan, Iraq, and the broader War on Terror, ``gaps and seams,'' as Secretary Rumsfeld refers to them, have been drastically reduced.

General Myers, Chairman of the Joint Chiefs of Staff, also expressed his

concerns on the subject during his testimony to the Senate Armed Services Committee, stating:

. . . for the warfighter, from the combatant commander down

to the private on patrol, timely, accurate intelligence is

literally a life and death matter every day. . . . As we move

forward, we cannot create any institutional barriers between

intelligence agencies--and of course that would include the

National Security Agency, the National Geospacial-

Intelligence Agency, and the National Reconnaissance office

and the rest of the warfighting team.

I am concerned that the reorganization package before the Senate places this effective system in jeopardy.

In S. 2485, the NSA, NGA, and NRO remain within DOD; but this is somewhat deceiving. These national collection agencies will also be within the newly defined National Intelligence Program. The Committee- reported bill would essentially remove the Secretary of Defense from any meaningful management role over these agencies.

First, the national intelligence director would have the authority to appoint the heads of these agencies, albeit with the concurrence of the Secretary of Defense. What makes this unusual and potentially problematic? Well, consider the fact that the Director of the National Security Agency, a general officer, is dual-hatted as the Deputy Commander for Network Attack, Planning, and Integration at Strategic Command, or that the Director of the National Reconnaissance Office also serves as an Under Secretary of the Air Force. These positions truly support the mission of the Defense Department

Second, the national intelligence director would have the authority to execute the budgets of these agencies. It is one thing to say that the NID should manage the entire budget for the National Intelligence Program, and, therefore, to help develop agencies' budgets and even receive their appropriation. It is quite another to altogether remove the Secretary of Defense from the loop by requiring that the NID suballocate funding directly back to the agencies. This effectively removes the Secretary from the management loop.

I have studied the Defense Secretary's testimony to the Senate Armed Services Committee, as well as the testimony of other experts. I am also aware that there were some good amendments in the committee markup to help preserve the Defense Department's equities. But I am still not convinced that we are doing no harm. As General Myers commented during the course of the Senate Armed Services Committee's discussion on the subject, ``[T]he devil's in the details.''

I recognize that during the course of the Senate's debate on this bill, several of my colleagues have offered amendments to ensure that the equities of the Defense Department are protected, and I applaud them for their efforts.

So, while I am not convinced we are doing no harm--particularly with respect to ensuring our warfighters have the intelligence support they need--I am also not convinced that we are necessarily doing much good. Again, the solutions of the 9/11 Commission, and, in turn, the Senate bill, don't seem to match the problems.

I would like to discuss an example of what I believe we could do to help minimize our chances of another catastrophic terrorist attack--by addressing cultural problems in the intelligence community, including risk aversion, group think, and a failure of leadership.

I was a member of the Senate Intelligence Committee for 8 years and participated in the first of the post-9/11 evaluations--the joint Senate-House inquiry, formally named the Joint Inquiry into Intelligence Community Activities Before and After the Terrorist Attacks of September 11, 2001. Along with the current Intelligence Committee chairman, I offered additional views to that report which, had I been part of the 9/11 Commission, I would similarly have submitted. Those additional views describe the core cultural problems in the intelligence community that can't simply be solved by reorganizing agencies. On this, the Commission report and the bill before us missed the mark in many respects.

First, let's consider risk aversion, which plays out not only in the intelligence community, but also in foreign policy decisionmaking, economics, business investments, and so on. There are many potential reasons for risk aversion--a particular action might have adverse, unintended consequences, might get one into trouble with one's superiors, or might simply draw unwanted attention, just to name a few. When an individual or a government acts, there is always a calculation of risk; but some governments and some individuals are more willing to take chances than others. This is a product of both leadership and environment.

An aversion to taking risks--even when they should be taken--plagues our intelligence community. Indeed, in the course of our congressional inquiry on the 9/11 attacks no intelligence or law-enforcement agency escaped being described by its own officials as hampered by an aversion to thinking critically, exposing their views to others, and being willing to boldly take risks. Time and time again, this has contributed to intelligence failures--most recently, of course, 9/11 and the intelligence communities' claims about Saddam's stockpiles of weapons of mass destruction.

The 9/11 Commission also addressed the issue of risk aversion within the CIA, noting the net result for that agency pre-9/11:

. . . an organization capable of attracting extraordinarily

motivated people but institutionally averse to risk, with its

capacity for covert action atrophied, predisposed to restrict

the distribution of information, having difficulty

assimilating new types of personnel, and accustomed to

presenting descriptive reportage of the latest intelligence.

One of the most well known examples of the problem of risk aversion in the context of the 9/11 attacks was the FBI's failure to respond to the ``Phoenix Memorandum,'' written by a Phoenix special agent who wanted to alert his superiors about suspicious individuals seeking pilot training. The now-famous electronic communication to FBI headquarters recommended that the FBI consider seeking authority to obtain visa information from the State Department on individuals who obtained visas to attend flight school.

The intelligence operations specialists at headquarters who reviewed the memo told the staff of the congressional joint inquiry that they had decided among themselves that seeking that authority raised profiling concerns. These concerns stemmed at least in part from previous public allegations of racial profiling against FBI agents who had questioned two Middle Eastern men acting suspiciously on a flight from Phoenix to Washington, DC, in 1999.

On a broader--not case-specific--level, the intelligence community's clandestine service has been seriously hampered by an aversion to taking risks. According to the 9/11 Commission's report, James Pavitt, the head of the CIA's Directorate of Operations, recalled that covert action had gotten the clandestine service into trouble in the past, and he had no desire to see it happen again.

It is likely that this ``trouble'' was at least in part a result of congressional actions, for example the 1976 Church Committee investigation, which was set up in the wake of revelations about assassination plots organized by the CIA. The investigation resulted in some 183 recommendations, and subsequent legislative proposals and debate that consumed considerable attention over a number of years. In part, that debate focused on specific, clearly defined limitations and prohibitions on intelligence activities.

Obviously, as we move forward with reforming congressional oversight of the intelligence community, there will be a need to balance strong and effective oversight with not hamstringing the community and creating an even more risk averse environment.

The culture of risk aversion in the clandestine service was also accentuated by executive branch actions during the Clinton administration. For example, risk aversion in the clandestine service was compounded by the 1995 Deutch Guidelines, CIA guidelines promulgated by then-Director of the CIA, John Deutch, which severely limited the ability of CIA case officers to meet with and recruit foreign nationals who may have been involved in dubious activities or have blood on their hands. Incidentally, during his tenure, Mr. Deutch also conducted a CIA-wide ``asset scrub,'' which applied an inflexible reporting standard to all CIA spies

that, if not met, resulted in their automatic firing. How can you effectively penetrate an organization or adversarial regime without dealing with unsavory characters? Thankfully, the Deutch Guidelines were finally repealed by the DCI in July 2002; but, their repercussions had a lasting effect on the culture of the Directorate of Operations.

So, here we have a clandestine service unwilling to take the risks that are, by nature, part of the job. Compound that with the fact that the DO had few resources. Between 1992 and 1998, the Central Intelligence Agency closed one-third of its overseas field stations, lost one-quarter of its clandestine service case officers, lost 40 percent of its recruited spies, and CIA intelligence reports declined by nearly one-half.

The result of this deterioration of a key part of our intelligence community was that, before 9/11, we had not one human source inside al- Qaida's command structure. What did the 9/11 Commission recommend to transform the clandestine service into a unit more effectively able to penetrate al-Qaida.

The CIA Director should emphasize . . . ``(b) transforming

the clandestine service by building its human intelligence

capabilities; (c) developing a stronger language program,

with high standards and sufficient financial incentives; (d)

renewing emphasis on recruiting diversity among operations

officers so they can blend more easily in foreign cities; (e)

ensuring a seamless relationship between human source

collection and signals collection at the operational level;

and (f) stressing a better balance between unilateral and

liaison operations.

As Reuel Gerecht, American Enterprise Institute scholar, commented in a recent article in the Weekly Standard, ``That's it. In a 447-page report on the intelligence failings of 9/11, the clandestine service gets nine lines. The important bit--`transforming the clandestine service . . .' is a 10-word platitude.'' The intelligence reform bill we are considering this week similarly fails to delve into this central problem. Even if we put the resources back in, we have not figured out how to deal with the mentality now ingrained in our covert officers.

Finally, as I previously noted, I believe the bill currently before the Senate will exacerbate the risk aversion problem in at least one respect: its creation of an excessive, redundant bureaucracy to oversee the protection of privacy and civil liberties. Should there be protections and oversight? Yes. But should there be so many layers of such oversight that intelligence officers are more worried about getting into trouble than about adequately performing their missions? Certainly not.

The provisions in this bill dealing with privacy and civil liberties are quite extensive. In summary, the bill establishes: two officers within the National Intelligence Authority, one responsible for privacy, the other for civil rights and civil liberties; an Inspector General within the National Intelligence Authority, who, in part, monitors and informs the National Intelligence Director of any violations of civil liberties and privacy; an Ombudsman within the National Intelligence Authority to protect against so-called politicization of intelligence; an independent Privacy and Civil Liberties Oversight Board with extensive investigative authorities; and privacy and civil liberties officers within the Departments of Justice, Defense, State, Treasury, Health and Human Services, and Homeland Security, the National Intelligence Authority, the Central Intelligence Agency, and any other department, agency, or element of the Executive Branch designated by the Privacy and Civil Liberties Oversight Board to be appropriate for coverage.

These provisions reach far beyond what the 9/11 Commission recommended--an executive branch board to oversee the protection privacy and civil liberties. The President already created such a board through executive order on August 27.

Under the construct offered in the Governmental Affairs Committee bill there will simply be too many people performing the same task. It will be inefficient; it will be counterproductive; and it will add yet another legal hurdle for our intelligence officers to overcome. Our goal should be to make it easier for them to do their jobs--to detect and prevent future catastrophic terrorist attacks--not more difficult. Let's not forget why we are reforming the intelligence community. It is to prevent another 9/11. The problem is not that we invaded suspects' privacy, but that we didn't know enough about them to prevent the attack.

I offered an amendment to S. 2845, which I discussed several times on the floor of the Senate, to eliminate some of this redundant oversight. I withdrew that amendment reluctantly, but with the understanding that the issue would be resolved in conference. I plan to continue to press my case on this matter because I believe it is central to ensuring that we do not make worse the already existing problem of risk aversion within the intelligence community.

Second, group think. This problem is not unrelated to the problem of risk aversion. The result of analysts' fears of taking risks is often that they are unable to think outside the box, to break free of the generally-accepted assumptions held by their agency or by the rest of the intelligence community.

In his August 16 testimony to the Senate Armed Services Committee, former Secretary of Defense James Schlesinger discussed the problem at length, stating:

Different organizations will drift gravitate towards

different ways of organizing reality--based upon their range

of responsibilities and, also, their interests in a narrower

sense. Most individuals make themselves comfortable in their

own organizations by not challenging a prevailing consensus.

Another cause of group think is simply a lack of imagination. In a recent op-ed in the Washington Post, Henry Kissinger raises some important questions about the reforms currently being pursued. He states that the basic premise of the ``current emphasis on centralization'' through the creation of a director of national intelligence ``seems to be that the cause of most intelligence failures is inadequate collection and coordination.'' Kissinger believes, however, that ``the breakdown usually occurs in the assessment stage.'' He attributes that breakdown to a failure of imagination to connect the dots of available knowledge. His op-ed describes in detail how a lack of imagination led to the major intelligence failures of the last 4 decades: the 1973 Middle East War, the Indian nuclear test of 1998, the September 11 attacks, and the failure to find WMD stockpiles in Iraq.

How do we solve this problem? Well, let's take the issue of Iraq's weapons. The Senate concluded in its bipartisan report on the intelligence community's assessment:

The presumption that Iraq had active WMD programs was so

strong that formalized IC mechanisms to challenge assumptions

and ``group think,'' such as ``red teams,'' ``devil

advocacy,'' and other types of alternative, or competitive

analysis, were not utilized.

Former Defense Secretary James Schlesinger recommends precisely what the bipartisan report said was lacking. In his testimony, SASC, August 16, he stated:

The only solution within an organization is to establish a

Devil's Advocacy organization to challenge the prevailing

beliefs.

This is an imperfect solution, as Secretary Schlesinger further notes, but, still, if we had had such mechanisms, we would have had a far greater chance of reaching the truth. Yet, neither the Commission nor the Committee recommends such a ``red team'' or ``devil's advocacy'' entity or process. We will have to do it by amendment.

This is one place where we can learn from our past successes and failures. Historically speaking, ``red teams,'' have been helpful inside and outside of the intelligence community. In the 1970s, for example, the intelligence community persisted in underestimating the size and scale of the Soviet arms build-up. In response, Congress created a ``red team'' called Team B to review the IC's analysis. Team B's report, which documented how far off the intelligence community was, laid the foundation for President Reagan to rebuild the U.S. military in the 1980s.

More recently, the Rumsfeld Commission on the ballistic missile threat was created to play devil's advocate with the findings of the intelligence community. Not surprisingly, the Commission found the estimates far off, dramatically underestimating the time it would take for a country to procure or produce a ballistic missile.

The chairmen of the 9/11 Commission, Thomas Kean and Lee Hamilton, recognize the group think problem in their

September 8 Washington Post op-ed, and offer that their proposed reforms ``institutionalize information-sharing, thus guaranteeing a competitive airing of views.'' They further state:

We don't want dissent quashed by group-think; we want

competing analyses to be shared broadly . . .

But as key experts, like Henry Kissinger and Jim Schlesinger, point out, it is valid to question whether centralized intelligence--which we are now pursuing--encourages conformity, making the problem of group think worse. At best, that structural change will do nothing to affect the problem.

Last, but certainly not least, leadership is a problem that simply cannot be solved legislatively. Conversely, good leadership can potentially solve the other cultural issues I have identified.

Al-Qaida's attack on Washington and New York occurred after a long period of poor leadership at the highest levels of the U.S. Government regarding terrorism. Despite repeated assaults on the United States and its interests, the U.S. Government was still unwilling to treat terrorism as a true national security issue until after 9/11.

This was, of course, partly a failure of political leadership. But the intelligence community is not absolved, either. The problem of inadequate allocation of resources in the intelligence community, for example, was at least partly a result of confused leadership in the community. In spite of a 1998 declaration of war on al-Qaida by the Director of Central Intelligence, two key organizations--namely, the Defense Intelligence Agency and the Federal Aviation Administration-- were not allowed, though they offered, to throw their support behind the antiterror effort.

Counterterrorism analytic centers were fragmented across the administration at the Pentagon, the CIA, and various FBI locations. Only after 9/11 did various intelligence and law enforcement entities begin to put aside their parochialism and work together in a more productive manner. And certainly reorganization was a partial fix for the problem--in particular, the new Terrorist Threat Integration Center, TTIC, which merges and analyzes all threat information in a single location under the direction of the DCI, has been beneficial. But, with better leadership of the intelligence community, the condition would not have been so prevalent in the first place. It would not have taken a monumental disaster for these entities to cooperate more effectively with one another.

I would now like to briefly discuss visa reform. I am pleased that the Collins-Lieberman bill, with the addition of Kyl amendment No. 3926, will at least tighten up immigration law to require, in statute, that most temporary visa applicants be personally interviewed by State Department consular officers during the application process, and that all such applicants be required to actually complete their visa applications to get a visa. Past misuse of immigration law allowed 15 of the 19 September 11 hijackers to enter the United States without completing their applications or being interviewed.

Some might question why such State Department regulations need to be included as statutory language in the Immigration and Nationality Act. Section 214(b) of the INA governs the admission of nonimmigrants to the United States. It presumes that an alien who applies for a temporary visa actually intends to stay in the United States permanently ``until he establishes to the satisfaction of the consular office'' that he intends to stay temporarily. This means that the burden of proof is on the alien to show that he is eligible to receive a visa and that he will not overstay or otherwise violate the terms of the visa. Had the State Department required its consular affairs officers to implement section 214(b) correctly, and thus to conduct in-person interviews and require that visa applications be completely and accurately filled out, to meet the burden of proof requirement, the tragedy of 9/11 could have been prevented.

The intent of Section 214(b) was not carried out by the State Department consular affairs officers who issued visas to the 9/11 hijackers. Fifteen of the 19 men who flew hijacked airplanes into the World Trade Center, the Pentagon, and the Pennsylvania countryside were Saudi nationals who should have been denied admission to the United States under section 214(b) because their visa applications contained inaccuracies or omissions. These were not trivial mistakes in spelling or punctuation. The applications omitted such fundamental information as: means of financial support, home address, and destination or address while in the United States. According to an October 28, 2002 National Review article by Joel Mowbray under the title and subtitle ``Visas for Terrorists: They were ill-prepared. They were laughable. They were approved,'' only one of the 15 applicants listed an actual destination address for inside the United States. The rest listed locations such as ``California,'' ``New York,'' or simply ``Hotel.''

Section 214(b) should also have been used to require face-to-face interviews of those applying for nonimmigrant visas. Only two of the 15 Saudi hijackers were interviewed by State Department officials. Such laxity by consular officers, however, occurred under guidelines and practices put in place by senior State Department officials. According to cables and other written notices sent over time by Mary Ryan, who was Assistant Secretary for Consular Affairs on September 11, 2001, shortening the visa application process wherever possible was a ``very worthy goal.''

Such top-down guidelines were explored in an October 2002 GAO report, ``Border Security: Visa Process Should Be Strengthened as Antiterrorism Tool.'' The report says the State Department's written guidelines and resulting practices for visa issuance allowed for ``widespread discretionary adherence among consular officers in adhering to the burden of proof requirements included in section 214(b).'' The GAO report also says the State Department's ``Consular Best Practices Handbook'' gave consular managers and staff the discretion to ``waive personal appearance and interviews for certain nonimmigrant visa applicants.''

The 9/11 Commission was provided detailed information about the State Department's use of section 214(b) and its contribution, in my opinion, to the tragedy of 9/11. In a letter to the 9/11 Commission on April 23, 2004, I said how important it was that the 9/11 Commission focus on the State Department's contribution to the dysfunction of the visa-issuance system prior to September 11. In a followup letter on May 13, 2004 to the Commission, I stated that correct use of the statutory law governing nonimmigrant visa issuance could have kept several, if not all, of the 9/11 hijackers from entering the country.

The amendment that the bill managers have accepted is based on the regulations promulgated by the State Department in the Foreign Affairs Manual it issued after September 11. It requires that all aliens who apply for a nonimmigrant visa submit to an in-person interview with a consular affairs officer. Although the primary purpose of the in-person interview is to determine whether an applicant will overstay his or her visa, it is also a prime opportunity for a consular affairs officer to gauge the intent of the applicant to try to make sure that the applicant does not intend to harm the United States. I recognize that not every person may have to be interviewed, so my amendment allows applicants under the age of 12, individuals over the age of 65, diplomats, and certain other individuals to be exempt from the in- person interview requirement if the consular affairs officer deems it appropriate.

My amendment also requires that, even if the nonimmigrant visa applicant falls into a category for which an interview is not necessarily required, one will be required if he is not a national of the country in which he is applying for a visa; if he was previously refused a visa; or if he is listed in the Consular Lookout and Support System. CLASS is the State Department's database that lists all applicants about whom the Department has security concerns. Finally, my amendment requires that all applicants for nonimmigrant visas provide complete and accurate information in response to every question on the nonimmigrant visa application. This is to ensure that the application is completely filled out and that the applicant has provided enough information to meet the burden of proof required by section 214(b) of the INA.

The codification of these few provisions will help ensure that terrorists are not able to enter the country using legally issued visas. Provisions to that effect ought to be in any piece of legislation aimed at preventing additional terrorist attacks on this country. I appreciate the willingness of Senators Collins and Lieberman to work with me to modify the amendment to make it acceptable.

Before I close, I want to note that I have separately discussed another related area in serious need of attention: making sure we have the legal authorities and resources we need to effectively fight terror. I had prepared several amendments on this topic, which I intended to introduce to this bill, but because some Members erroneously believed that these amendments were highly controversial, I chose not to pursue them.

These amendments, one of which was my Tools for Terrorism, TFTA, bill in its entirety, others of which were parts of that bill, should not have been considered controversial. TFTA is not new--it is composed of bills that have been pending, have been approved by the Justice Department, and have been the subject of nine separate hearings. TFTA consists of all or part of 11 bills currently pending in the House and Senate. Every provision of the bill previously has either been introduced as a bill in the House or Senate or had a committee hearing. Every provision of the bill has the full support of the Justice Department. Collectively, the provisions of this bill have been the subject of nine separate hearings before House and Senate committees and have been the subject of four separate committee reports. Furthermore, collectively, the bills included in TFTA have been pending before Congress for 13 years.

That said, in the interest of allowing the Senate to move forward quickly, and noting that some of the provisions of my TFTA bill are included in the House version of the Intelligence Reform bill, I have decided to continue to try to press my case during the House-Senate conference.

My intention today was not to create a sense of futility in this body's efforts, but rather to express reservations about the proposed solutions and highlight those areas I know need to be resolved if we are to effectively wage the war on terror. A careful reading of the congressional joint inquiry report, the Senate's Iraq intelligence investigation, and the 9/11 Commission's narrative of the failures that led to 9/11 all point to far deeper deficiencies than can be solved by bureaucratic reorganization.

I plan to vote for this bill, but I do so recognizing that it is imperfect, and also with the clear intention of continuing to press my case for various modifications in conference.

Finally, while it is true that, if we do reform right, we will be able to improve our intelligence, it will never be the case that our intelligence is perfect. It is next to impossible to imagine every possibly means by which we might be attacked. As Judge Richard Posner points out in his New York Times Book review:

The [9/11 Commission] narrative points to something

different, banal and deeply disturbing; that it is almost

impossible to take effective action to prevent something that

hasn't occurred previously.

This does not mean we should not try; it does mean that we have to be realistic about the limitations of intelligence.

Those limitations make solid political leadership all the more important. Intelligence, diplomacy, military, law enforcement--these are all tools in our arsenal to fight the war on terror and whatever other threats may come our way. Decisionmakers must be willing to use them effectively. That is what will offer our greatest protection against another devastating attack.

Madam President, am I recognized?

What does ``in the queue'' mean in this situation?

Madam President, maybe I can shed just a little bit of light here to help. I do not intend to take the full 2 hours which have been allotted to me under a previous request. I will be very happy to yield to the very distinguished senior Senator from Virginia at this time if he so wishes to precede me.

Madam President, as I say, I will not use the full 2 hours. There will be ample time, I am sure, for some of the others whose names have already been mentioned.

When I refer to the distinguished Senator from Virginia, may I take this opportunity to thank him for the service he continues to give to the country and to his constituents, the people of the great State of Virginia. I have noted in the press some of the concerns he has expressed with respect to this particular legislation, and I am sure

those concerns have led to improved legislation, certainly improved chances for its passage today, and I want to thank him for that.

Mr. President, I thank the managers of this bill, Senator Collins and Senator Lieberman, for the courtesies which they never failed to extend. I have the utmost respect for the dedication and for the knowledge which they have brought to this particular subject matter. They have spent many weeks, days, and hours in the consideration of this matter in the committee, on the Senate floor, in the conference, and their kindnesses, their studies, their knowledge, their ability to translate into action the concerns that so many of us have held with respect to intelligence is something worthy of admiration.

I also thank Senator Roberts and my colleague in the Senate from West Virginia, Senator Rockefeller. They, too, have worked hard and have contributed much and will continue to do so. I recognize that these Senators have worked tirelessly since last summer in trying to craft the best legislation possible. So I have to compliment these Senators. I have to salute them. I have to respect them for their tenacity.

I regret that I cannot join them in supporting the conference report. I will vote against it. Mine may be the only vote against it, for that matter. But I feel that I must speak out and must vote my own sentiments as I attempt to represent the people of West Virginia according to my own lights.

I know the families of the individuals who perished in the September 11 attacks are following the proceedings of the Senate closely today, and my sympathies go out to them, as my sympathies did immediately after the terrible tragedy that befell them and befell the Nation. As chairman of the Appropriations Committee at that time, I responded in a very positive way. We passed a $40 billion appropriations bill within 3 days. That is somewhat of a record, I must say. Again, I say, we enacted--when I say ``we,'' I mean the entire Congress--a $40 billion appropriations bill within 3 days of that tragic happening.

These families who have grieved over the loss of their loved ones for more than 3 years, and who will continue to grieve over these losses throughout their lifetimes, have been critical to the efforts to create the 9/11 Commission and allow their thorough investigation to be completed. The greatest tribute to their efforts of these past years would be for the Congress to get these intelligence reforms right.

When the elected representatives of the people allow themselves to be coerced into a process that encourages the abdication of our responsibility to understand and fully debate and thoroughly review legislation, the people are robbed of their voice and their government. Senators take an oath to defend the Constitution of the United States. I have taken that oath many times over these 58 years that I have served in public office. Common sense suggests that that means reading and studying the legislation before the Congress. We are dutybound to explore the opinions on all sides of an issue and, especially an issue that is so serious as is this one, we are dutybound to work toward a process that does not exclude opponents or silence the opposition.

In its heyday, the Senate, this body, the U.S. Senate, was known as the greatest deliberative body in the world. It should still be that. I wonder if it is. What we have seen in recent times, however, is a hollow shell, a hollow shell of that noble tradition. Time after time after time, the Senate forgoes its responsibility to deliberate and to carefully review legislation, and even defers to others to craft legislation for it.

Legislation is passed by the Senate and then, all too often, hastily rewritten in a conference report behind closed doors marked, as it were, ``no minority view admitted.'' All too often during the 108th Congress, the party leadership has held bills until just before a recess and then employed disingenuous rhetoric about, ``Oh, last opportunities, these are the last opportunities to get something done.''

Senators, preoccupied with holiday schedules and holiday travel plans, for example, roll over timidly and accept whatever is placed in front of them. They do it. They do it time and time again. And they importune those Senators who might be hopeful of speaking out and spending some time and debating with their colleagues. These Senators are pressured by their colleagues and by the leadership and by the White House to roll over and let the vote come and let us go home. I anguish about the eroding character of the Senate.

I have now served in this Senate 46 years. I have seen the Senate when it took the time to speak and to debate and to amend, to ask questions. I have seen those times, and those were the great days for the Senate. It fulfilled its duties to the American people and to the Framers, to the forefathers, to those who have preceded us. I greatly regret that those days seem to be gone. They seem to be gone.

I anguish, as I say, about the eroding character of this body. I anguish about the message it sends to the American people when this body allows itself to be stampeded, as it so often does allow itself to be stampeded, into passing legislation without thorough examination.

Oh, we congratulate ourselves on a job well done and then vote overwhelmingly in support of the legislation, and yet we cannot even be bothered to ask questions about the changes made in conference. Like pigmies on the battlefield of history, we cower like whipped dogs in the face of political pressure when it comes to issues such as intelligence reform.

I felt the pressure to forego any speech, forego any request for a rollcall vote but just to let it pass by voice vote. Can you imagine that? Let this piece of legislation pass by voice vote; oh, Senators have travel plans, and it would be well if we could just have a voice vote.

We have too much of that around here. I for one have a rebellious feeling against our relaxing in our duties to the Senate and to the people by giving in to such pressure.

I do not claim to know as much about this legislation as the managers of the bill. But I do know about process. And it galls me that the Senate has allowed itself to be jammed against a time deadline time and time and time again--and in this instance, jammed against a time deadline in considering this conference report.

This is the most far-reaching reorganization of our intelligence agencies since 1947. These changes will remain for decades, and these changes will impact upon the security of our Nation at countless levels. Such matters ought to be held to a higher standard of consideration by the Congress than is the case here.

This conference report has been reworked and redrafted over the course of 2 months in a closed-door conference, and the Senate has only received a printed copy of the conference agreement less than 24 hours ago. I

don't know what is in the conference report. I would say that any other Senator who stands before this Senate and tells the American people he or she knows what is in the conference report is like the emperor who had no clothes.

As late as yesterday, the conferees were still making changes. It is outrageous, outrageous, to expect Senators to read and understand a 615-page measure in less than 24 hours. Is that the way we ought to legislate? Here we have young pages who come here from all States of the Union. They expect to learn how legislation is made, how the Senate works, how we Senators perform in the bright lights of publicity, how we do the people's business. I know they read the casebooks and the history books and the textbooks and all these things about how legislation is made. They come here with bright eyes, open eyes, open ears, great hope, great aspirations, and they work for what I say has been rightly called the greatest deliberative body in the world.

Is this deliberation, a 600-page report? If I stood before the American people and said I can vouch for everything that is in this, I know what is in it, the people would know I am misleading them, wouldn't they? But this is so often the way it is. We allow ourselves to be pressured by the leadership. The leadership calls up measures here in the Senate. Any Senator can make a motion to proceed. But Senators don't do that. They defer to the majority leader. I have been the majority leader. I have been the minority leader. Senators defer to the majority leader, whether it is a Democrat or a Republican, to call up measures. I say that we often just do not have the debates the Senate should give to important measures.

This conference report--as I say, it is outrageous for Senators to understand the 600-page bill in less than 24 hours.

I want to call attention to the Washington Post of today and its lead editorial titled ``Reform In Haste.'' I shall just take the time to read the first two paragraphs of today's Washington Post lead editorial titled ``Reform In Haste.'' I quote therefrom:

The rhetoric emanating from the Capitol Hill in the past

few days may have created the impression that, after a hard-

fought battle over key provisions, Congress worked its way to

a sensible plan for reorganizing the U.S. intelligence

community. Sadly, that is far from the truth. The 600-page

omnibus measure on its way to approval yesterday had not been

read or carefully considered by the vast majority of members,

including some of those most involved in its construction.

What passed for a debate in the past couple of weeks was

actually little more than a turf battle by Pentagon satraps

and the Congressmen who share their interests on issues that

are marginal to the broad reorganization outlined in the

legislation.

That shake-up, driven by an odd combination of election-

year politics and the determination of the September 11

commission to leave a mark, may improve the quality of

intelligence information supplied to the President and other

key policymakers; we have our doubts. Like the passage of the

USA Patriot Act or the creation of the Department of Homeland

Security, it has been mandated hastily and with scant

consideration of its long-term consequences.

That is what I am talking about. The Washington Post hit it right on the head.

I tell you that I am not going to vote for legislation of this importance under such circumstances. I have done it before. I have voted against other legislation from time to time which I felt was being rammed through the Senate without proper consideration, without ample time for debate. And this measure, of course, cannot be amended. A conference report under Senate rules cannot be amended. So we have to take it or leave it, vote it up or down. We are buying a pig in a poke here, I can assure you.

This conference report is very different from the legislation that passed the House of Representatives and the Senate 2 months ago. I have heard Senators here on the floor today talk about how this differs from the legislation that we passed in the Senate a few weeks ago.

For example, a number of provisions related to the U.S. PATRIOT Act and the law enforcement powers have been inserted into this bill, which again has never been considered on the Senate floor.

This legislation has encountered virulent opposition since the time of its conception. And while it may enjoy the support of the overwhelming majority of Members here today, nobody--I say nobody--can say with any confidence or certainty as to how this new layer of bureaucracy will affect our intelligence agencies or the security of our country. We don't know if it will enable the intelligence agencies or enable the Government in all its ramifications to better guard against a terrorist attack or whether it will cause a host of unforeseen problems. We are failing in yet another misguided rush to judgment to take the time and effort to find out. We are failing to take the time. It is a rush to judgment. There has been a mad scramble to cobble the pieces together and pass a bill. Oh, I have to pass a bill.

The Senate barely understands how the experts line up on this bill. The 9/11 Commission is for it. That much we know. But former CIA Director George Tenet said last week he opposes this bill. That is sobering criticism from someone who, having left Government months ago, no longer has any turf to protect.

A distinguished group of national security experts wrote in September that they oppose any intelligence reform this year. That group included former Senate Intelligence Committee Chairman David Boren; former Senator Bill Bradley; former Secretary of Defense Frank Carlucci; former Secretary of Defense Bill Cohen; former CIA Director Robert Gates; former Deputy Secretary of Defense John Hamre; former Senator Gary Hart; former Secretary of State Henry Kissinger; former Senate Armed Services Committee Chairman Sam Nunn; former Senator Warren Rudman; former Secretary of State George Shultz.

We do not know how these experts regard this conference report. We do not know how they regard the bill today, but even months ago they urged we take more time.

Henry Kissinger appeared before the Senate Appropriations Committee and urged we take more time. He suggested we take more time, even as much as perhaps 8 months--nothing this year.

I read from an excerpt of a statement by former Secretary of State Henry Kissinger, as of Tuesday, September 21, this year:

What we are urging is a time for reflection and a time for

consideration with maybe a short deadline of 6 to 8 months,

but to take it out of the immediate pressures of a period

that is bound to affect the thinking.

There we were, about to enter into the heat of an election campaign and Henry Kissinger was saying, whoa, whoa, wait a minute. Let's slow down. Let's take adequate time. Don't be pressured by the election. Let's don't do these things in such a hurry.

We do not know what these experts regard how they would perceive this conference report today. I don't know how Henry Kissinger would judge it. He doesn't know what is in the conference report, just as I don't know what is in it. Why should Senators forego the valuable insight of almost every public figure who may actually be able to assess what is in the new version of intelligence reform?

So I say again, let us not say we believe we understand what is included in this conference report. I don't understand it. We have not had the time to understand it. We do not have sufficient resources by way of assistance from capable staff people. They have not had the time. It is, in effect, a new bill and in some ways very different from anything the Senate has considered to date.

Common sense suggests the Congress ought to hold hearings on the contents of this new measure so we may be informed by experts about its benefits and defects, so that we may ask questions, so that those questions and answers may be compiled into printed hearings so we all may have the benefit of the knowledge, the benefit of time to study and to reflect.

There is no reason the Senate cannot proceed in this prudent matter early next year. Instead of viewing this conference report as the final stage of the process, we ought to consider it as the starting point for debate next year. It is only a few days away, next year. We ought to invite witnesses back to testify and allow the process to begin anew outside the election cycle and built on the foundations of knowledge acquired this year.

Instead, we are allowing ourselves to be lulled into the fallacious belief that we must accept this bill, we must accept this conference report, we cannot

amend it, we must accept it from page 1 through page 615. We have to accept it lock, stock, and barrel.

We do not know what is in it. There may be several pigs in this poke, but we buy them all; we embrace the whole thing virtually sight unseen. We allow ourselves to be lulled into the fallacious belief that we must accept this bill or risk it not passing next year, with some even suggesting a terrorist attack could result from it.

Now, a terrorist attack may happen, but it won't happen because this conference report would have been put over until next year. If it is going to happen, it will happen and nothing in this conference report would stop it if it happened next week or the next month or the next several weeks or months. That is nonsense. Don't believe it.

I have heard even some comments from people who ought to know better on the TV saying, What I am concerned about, if we don't pass this report, I just hope we don't have another terrorist attack--as though passage of this conference report will make any difference to any terrorist who may be planning an attack next week or 10 days or the next month or the next 2 or 3 months. No legislation alone can forestall a terrorist attack on our country.

The momentum is strong now to reform our intelligence agency. I submit the greater risk is not that the momentum will dissipate next year if this bill does not pass today or this week, but that the passage of this bill will remove any incentive to focus on the broader intelligence failures that have occurred outside the war on terror.

This legislation is appropriately focused on the failings of September 11 but oblivious to the many other glaring deficiencies in our intelligence community. Our country went to war in Iraq, a war we should not have engaged in, a war in Iraq on the shoulders of false claims about weapons of mass destruction. But this bill dances around that issue on tippy toes. It is as though Congress is too afraid to mention the fact that faulty intelligence claims deceived the public out there, deceived the man and the woman on the street, deceived the people of this country into believing there was an imminent threat from Saddam Hussein.

Why is Congress avoiding that critical issue? Is it because some do not wish to expose the role of the White House in feeding bad intelligence to the American people? The Founding Fathers intended Congress to be a check on the power of the Chief Executive, but increasingly Congress appears content merely to be a cheerleader for the President depending upon which party might be in control at a given moment.

The intelligence bill fails to address the unfolding prison abuse scandals in Iraq, Afghanistan, and Guantanamo Bay.

The Armed Services Committee has held six hearings on the abuse of prisoners in U.S. military jails. There is mounting evidence that the CIA had some hand in the mistreatment of detainees. The Red Cross has reported on the illegal practices of U.S. intelligence agencies holding ``ghost detainees'' in secret prisons. Why is this intelligence bill silent on such outrageous policies? How can Congress claim to fix what is wrong with our intelligence agencies if this major piece of legislation does not even address such colossal intelligence failures?

The only way to reduce the risk of such failures is to ensure the accountability of this new Intelligence Director to the people's representatives in the Congress. It is the Congress that must make the decision to declare war, and it is the Congress that is responsible for the oversight of this new intelligence program to help guard against future intelligence failures.

It is paramount that the Congress do everything possible to ensure itself access to timely, objective intelligence. Yet that is not what we see in this legislation.

This conference report eliminates provisions to ensure that the Congress receives timely access to intelligence. It also allows the White House's Office of Management and Budget to screen testimony before the Intelligence Director presents it to the Congress. Whistleblower protections for intelligence officials who report to the Congress have also been stricken from the Senate-passed bill.

The conference agreement creates senior intelligence positions but exempts many of them from confirmation by the Senate. It eliminates the privacy and civil rights officers included in the Senate-passed bill. It strips 18 pages of legislative text that would have created an inspector general and ombudsman to oversee the Intelligence Director's office. That language has been replaced with one paragraph, authorizing the Intelligence Director, at his discretion, to create or not to create an inspector general, and provides the Director with the power to decide which, if any, investigative powers to grant the inspector general.

That means the new Intelligence Director could exempt his office from inspector general audits and investigations, and that the Congress would not receive reports from an objective internal auditor. The Congress is limiting its own access to vital information within this new intelligence office, and it will have thereby compromised an essential mechanism for identifying potential abuses within the new intelligence program.

Given the dark history of abuses of civil liberties and privacy rights by our intelligence community, I had hoped that the Congress would exercise more caution, but it has not done so in this legislation.

The 9/11 Commission recognized that its recommendations call for the Government to increase its presence in people's lives, and so it wisely endorsed the creation of an independent Civil Liberties Board to defend our privacy rights and liberties. The Senate-passed bill embraced this recommendation and included additional protections to help ensure that executive agencies could not exert undue influence on the Board. This conference agreement, however, scuttles those protections by burying the Board deep inside the Office of the President, subjecting Board members to White House pressure. Why?

The conferees included language making changes to the 1978 Foreign Intelligence Surveillance Act, the law that blurs the rules on electronic surveillance and physical searches by the U.S. Government. This conference report, though, states that the Intelligence Director shall have authority to direct or undertake electronic surveillance and physical search operations pursuant to FISA if authorized by statute or executive order. This is dangerous ground, isn't it? This is dangerous ground to walk when the President, through executive order, and without the authorization of the Congress, can direct this new Intelligence Director to undertake electronic surveillance and physical search operations.

Yet another provision would make terrorist crimes subject to a rebuttable presumption of pretrial detention, which means that prosecutors will not be required to show a judge that the defendant is a flight risk. Instead, the defendant will be presumed to be a flight risk. Are Senators sure we are not trampling on the civil liberties of the American people with the hasty passage of this conference report?

Again, few, if any, Senate hearings have been held on these provisions by the full Senate Judiciary Committee. The inclusion of these provisions in title VI, with so little examination of their real meaning, reminds one of how the PATRIOT Act itself was enacted in haste without sufficient review, and with no real understanding of its true consequences.

These are unsettling provisions, and the Senate ought to insist on its rights to consider them more carefully. The Senate has not had enough time to understand this legislation or its implications. This new Intelligence Director has been granted significant authorities, and the Congress has not done enough to ensure adequate checks on the actions of the Intelligence Director.

With regard to homeland security, the bill authorizes a significant increase in the number of Border Patrol agents, immigration investigators, and a significant increase in the number of beds for immigration detention. The bill also authorizes increased funding for air cargo security and for screening airline passengers for explosives. All of these are worthy goals, but the provisions are just empty promises.

Last September, when I offered an amendment to the Homeland Security

appropriations bill to fund these precise activities, the White House opposed the amendment and my Republican colleagues lined up, virtually to the man or woman, and voted against it. And today, Members will line up and vote for more empty promises.

President Bush had the opportunity to support Congressman Sensenbrenner and insist on tougher immigration reforms in this bill, but the President welched. Senators talk about reforms needed to protect against terrorism, and the fact is that this bill is a hodgepodge of empty border security promises that the administration has no intention of funding--and I am certainly concerned about that; no intention of funding--and that will only encourage the kind of illegal immigration that leaves our country wide open to terrorists.

Yes, I will yield.

Very well. Will the distinguished Senator inform me as to how much time?

Does the Senator wish me to yield at this point?

Yes.

I will certainly yield to my friend very shortly. Let me say, however, continuing my thought, it may well be that the only problem that this bill will actually fix is one of politics.

Passing this bill in the waning hours of the 108th Congress means that for all intents and purposes intelligence reform will be removed from the agenda of the next Congress. By passing this bill today, the Senate will be giving political cover to those who wish to dismiss calls for more thorough reform of intelligence agencies to fix problems that are not addressed in the legislation, including the Iraq WMD, weapons of mass destruction, fiasco and the abuse of prisoners in secret detention facilities.

Intelligence reform should be done right the first time. But the actual implementation of this bill will be shrouded in secrecy and hidden from public scrutiny. Under this conference report, the total amount of intelligence spending will remain classified so that the American people may never know if the President is shortchanging the reform effort that this bill requires. Senators ought not be so willing to rush this bill through knowing that it may serve as political cover for an administration that has a sorry history of promising big reform efforts that it never funds.

Mr. President, I am happy to yield now, if I may retain my right to the floor, to my friend from Oklahoma.

Mr. President, I thank the Senator who has expressed, rightly, his concern. The Senator has cited excellent examples of why this bill is being rushed and why it should not be rushed.

I am for intelligence reform. There are many things in this package, I am sure, that are worthwhile. But we cannot fully protect ourselves against terrorists unless we address the gaps in our borders and stem the rise of illegal immigration. There is a great deal of friction in the House of Representatives with respect to this conference report because of the failure to address many of the problems Congressman Sensenbrenner spoke about. I hope we will still have an opportunity to do that. But this is just one area in the conference report that ought to have had more time, but it did not get the time, as the subject matter in its entirety should have had more time.

Next year, the President will ask the Congress to pass a sweeping amnesty. It's clear that illegal aliens will continue to pour into this country until the Congress takes action to protect its borders.

The 9/11 Commission's endorsement of this legislation will mean nothing if these so-called reforms lead to future intelligence failures.

What the American people will remember, however, is that the Congress--the Senate and the House--abdicated its role to fully protect their security interests. The American people will remember that the Congress empowered an unelected bureaucrat while doing little else to protect against future intelligence failures.

This process has been hurried and rushed from the beginning. It has been tainted ever since the decision was made to tie its consideration to a political schedule.

When the 9/11 Commission needed more time to conduct its investigation into the September 11 attacks, the Congress acted magnanimously in granting a 2-month extension. Senators said at the time:

It would be counterproductive to deny the commission the

extra 2 months it now says it needs to complete its

investigations. . . .

Mr. President, the Founding Fathers would be ashamed of the notion that time is a luxury reserved for the unelected members of independent commissions. What about the Senate? What about the elected representatives of the people who serve in this body?

The Framers of the Constitution conceived a Senate that would resist the forces that urge us to bend with each change in the political breeze. To the contrary, the Constitution binds Senators to serve the greater causes of the Republic and reserves the power of each Member to demand more time for debate, more time for thoughtful consideration. So shame on us for not invoking that wisdom in claiming the additional time we need to better assess this legislation and to better protect the security of this Nation and to better enhance the well-being of the American people, who stand in need of closer examination and scrutiny of legislation that will provide for their security and the security of their children and the security of the institutions that need that protection and that security.

Mr. President, I yield the floor.

Fostering the Flow of Information

Mr. President, I rise to join with Chairman Collins in recommending the adoption of this conference report on the Intelligence Reform and Terrorism Prevention Act of 2004 which, of course, implements the key recommendations made by the 9/11 Commission Report.

I begin by thanking Senator Collins for her extraordinary leadership in this effort. In the 16 years I have been here--and it is self- evident to the Presiding Officer and others that I am much the senior of Senator Collins--I have never had a better legislative experience.

This task came to us quickly. There was an enormous amount of work to do. As I said yesterday, it was a long and winding road we walked down, but we ended up where we needed to be and where the Nation needed us to be, and it simply could not have happened without Susan Collins' leadership. She has an extraordinary sense of purpose and principle. She understands the difference between right and wrong and, in a legislative context, perhaps, the difference between better and worse because that is often where we are. She is a persistent and very effective negotiator, knows when to hold them and when to fold them.

She is a wonderful person--I think maybe I should be that explicit-- and that doesn't hurt around here, either, because it gains the confidence of the people who work with her. Part of her being a great person is her great sense of humor which got us through some of our darker moments.

I was thinking one of the great moments in the process was when we decided, late in the process, that the original title we gave to the central position we created, the National Intelligence Director, would have the acronym NID. It doesn't resonate the strength that we wanted. Some member of our conference with an inferior sense of humor said it would lead to a lot of ``NIDpicking.'' A lot of laughter led to the change of the title to the Director of National Intelligence, the DNI. You can feel the force radiating. We laughed a lot about that and about a lot of other things.

It is a familiar saying in public service and life, and certainly in campaigns, that victory has a thousand parents and defeat is an orphan. This is a victory for the American people. Many people have a right, here in the Senate, on the 9/11 Commission, the families of the 9/11 victims, the President of the United States, the Vice President of the United States--so many people can say, and we might say: Without their involvement this would not have happened. But nobody, really, can say that more or feel that more than Senator Susan Collins of Maine. I thank her very much for her friendship, for her partnership, for her leadership here, and I, too, look forward to working with you in many similar collaborations in the years ahead.

Before I get to the substance of the bill, I do want to say something about the process here. As we end the 108th session of Congress, unfortunately a session that was very often polarized and partisan, it is really great--besides the specifics of this accomplishment that is so critical to our national security--that we have ended it with a bipartisan, nonpartisan triumph. It ought to send a message to the American people, and perhaps just as important to us here, that we are capable of doing this. When the chips are down, we are capable of getting together across party lines and doing what is right for the country. That, ultimately, is why we all came here. That gives us the greatest satisfaction and,

incidentally, it is probably the smartest and most productive thing we can do politically as well.

This simply would not have happened in the Senate without the chairman of the committee on Homeland Security and Governmental Affairs, and ultimately the chairman of the conference, Senator Collins, setting exactly that tone. I thank Peter Hoekstra on the House side, Jane Harman, and all the members of the conference committee for all they contributed.

This legislation is a testament to the courage and persistence of the families of the victims of September 11. Their personal sacrifices, transformed into a steadfast devotion to see this bill to passage, will help make the rest of America safer. This bill was conceived in the memory of their husbands and wives, their sons and daughters, their mothers and fathers and brothers and sisters, and simply would not have been possible without the constancy of effort and the increasingly sophisticated advocacy by the surviving family members. I thank them.

We have worked hard for this historic agreement because we believe, quite simply, that the security of our Nation depends on it. There were various times at which people in this Chamber and the other body said we were moving too quickly; what was the cause for haste? I can tell you it didn't seem we were moving too quickly to Senator Collins and me. But what was the cause for our haste? Our enemies, our terrorist enemies, al-Qaida and their ilk, are not waiting, as we know. They are here. They are planning. We are at peril. Accordingly, we approached this task with a real sense of urgency, a grave and growing sense of urgency because we know we face a clear and present danger from terrorists.

The bill before us today is a landmark achievement because, as others have said and will say throughout the day, for the first time in over half a century we are going to modernize our national intelligence structure to meet the new challenges we face in today's world. With this bill, we recognize we can no longer keep the American people safe simply by projecting military force abroad. The world has changed. Our terrorist enemies today make no distinction between soldiers and civilians, between foreign and domestic locations when they attack us. To defeat them, we must have the best possible intelligence about their plans before they strike so we can stop them before they strike.

This legislation moves us toward that goal significantly by transforming our intelligence community from a Cold-War model--and after all, it was at the outset of the Cold War that the current structure was conceived--a Cold-War model that shared information only if there was a need to know, to a 21st-century model that will share information to maximize the intelligence community's substantial resources and expertise and, yes, guarantee greater returns for the billions and billions of dollars of taxpayer money that are invested in intelligence to protect the American people.

The 9/11 Commission supports our compromise. Chairman Kean and Vice Chairman Hamilton said in a statement:

We believe this is a good bill and a strong bill. We

believe it will make our country safer and more secure.

They support this compromise because it implements the Commission's key recommendations to establish that DNI and a National Counterterrorism Center that will improve coordination and collaboration, as the Commission puts it, ``to forge unity of effort'' between the 15 intelligence agencies scattered throughout the Government, and to ensure that, unlike up until now, someone is genuinely in charge.

I said to a business executive in my home State this morning, talking about this bill, explaining why I couldn't be with him today at a meeting in Connecticut, that if anybody in business really got inside and looked at how we are spending the billions of dollars we do on intelligence, they--well, they wouldn't believe it because no one is in charge.

The Commission indicted the status quo of America's intelligence community. The 9/11 Commission report is an indictment of the status quo. Those who pick and try to look for loopholes in this reform have to remember that the status quo failed to protect the American people on 9/11 and it has failed in different ways to provide us with the quality, accuracy and reliability of intelligence that we need.

Vice Chairman Hamilton memorably told our committee in our hearings on this Commission report:

A critical theme that emerged throughout our inquiry was

the difficulty of answering the question: Who's in charge?

Who ensures that agencies pool resources, avoid duplication

and plan jointly? Who oversees the massive integration and

unity of effort to keep America safe? Too often [the 9/11

Commission said] the answer is no one.

The fact is, below the level of the President no one has been in charge of overseeing the entire intelligence community and its multibillion-dollar budget. Today, as testimony before our committee validated, no one is clearly in charge of the hunt for Osama bin Laden. No one has had the authority to knit together the efforts of the 15 disparate agencies working on intelligence for the American people, and, therefore, no one has ultimately been accountable for the deadly mistakes that have been made.

This legislation changes all of that, putting a clear command structure in place so that in the future the puzzle pieces will be put together, the dots will be connected, and so, I hope, pray, and believe, we will never have to suffer through another attack like the one we did suffer through, and still do, on September 11, 2001.

I wish to briefly discuss some of the key provisions, starting with intelligence reform.

Under our current intelligence structure, the CIA Director has to perform three jobs: acting as the President's principal intelligence adviser, overseeing the intelligence community as a whole, and directing the CIA. The 9/11 Commission reported what many had said before: The tasks are simply too much to expect of any one person.

So we have created a Presidentially appointed, Senate-confirmed Director of National Intelligence, who will lead the national intelligence community but be separate from the Director of the CIA. The DNI will be the President's principal intelligence adviser and will focus exclusively on breaking down those barriers that have obstructed information sharing and professional collaboration in the public interest. With the CIA Director in charge of daily CIA operations, the DNI will be able to forge that unity of effort which we need to better protect the American people.

The DNI will exercise significant budget authority over the intelligence community both in the development and the execution of the budget, and he or she will consult closely with the Secretary of Defense, the Director of the CIA, the head of the FBI, and other intelligence leaders on both funding and personnel issues.

The DNI will have unprecedented authority in the implementation and execution of all funding under our national intelligence program.

Our bill makes clear that the DNI will have the power to ``develop and determine'' the intelligence budget and that the Director of the Office of Management and Budget must apportion the national intelligence program funds at the ``exclusive direction'' of the DNI. The DNI is further responsible for managing the appropriations by ``directing the allotment and allocation'' of appropriations through the heads of Departments containing the elements of the intelligence community. Just to make sure there is no slow-walking in moving those funds forward, the Department comptrollers must then allot, allocate, reprogram, or transfer funds--in the words of the report--``in an expeditious manner.''

The DNI will have a major hand in the appointment of key officials across the intelligence community, thus elevating the authority of that position. He or she will recommend appointment of the Director of the Central Intelligence Agency to the President. The Secretary of Defense will have to obtain the DNI's concurrence in appointing the heads of the National Security Agency, the National Reconnaissance Office, and the National Geospatial-Intelligence Agency. The Secretary will consult with the DNI before appointing the Director of the Defense Intelligence Agency. The Secretaries of the Departments of Energy, Homeland Security, Treasury, State, and the Attorney General will need the concurrence of the DNI to appoint the heads of intelligence agencies under their immediate jurisdiction and under the DNI's

overall jurisdiction. That is real authority in this new office.

The DNI will also have significantly expanded authority to transfer personnel and funds beyond those of the current DCI so that he or she may react quickly to changing threats and direct intelligence resources where they are needed.

In addition to creating the DNI, this conference report will create-- as recommended by the Commission--the National Counterterrorism Center and a series of National Intelligence Centers to ensure that critical national security issues are addressed with maximum coordination and teamwork.

This may well be the most significant process we have begun with this bill, the authority of DNI, but creating a model, and a model built on the most effective, modern corporate models of joint team efforts to deal with problems. But it really deals directly and grows out of the experience of the Pentagon post-Goldwater-Nichols, in joint warfare.

This says when we have a critical national security problem the best way to deal with it will be to create a center to deal with it, a table at which every element of our Government involved in dealing with that problem is present so they can collect intelligence together, analyze it together, and then plan how to combat the problem.

Specifically created in this bill, of course, is the National Counterterrorism Center which will seek to make ensure the disastrous disconnect between the FBI and the CIA that occurred prior to 9/11 will never occur again. It will develop plans, assign roles, and monitor the agencies' implementation of those plans in order to thwart the next terror attack.

This is not a narrowly focused, constricted center. The Center's planning will be at the strategic level such as how do we best win the ``hearts and minds'' of the great majority of people in the Muslim world. It will be at the tactical level--for instance, how we are going to capture Osama bin Laden.

The National Counterterrorism Center Director will be confirmed by the Senate and it will report to the Director of National Intelligence, and in some cases to the President himself.

Let me talk about those other centers.

This bill creates one other center to deal with a most pressing threat to our security; that is, the proliferation of weapons of mass destruction. This part of the bill was inserted as a result of the leadership of the majority leader, Senator Frist. It is an enormous step forward in dealing with the threat of WMD.

These are the central structures of the intelligence reform, but our legislation goes beyond that. The 9/11 Commission documented that, in a period preceding September 11, 2001, potentially helpful information available to one part of the Government was not shared with others which could have used it.

This legislation takes that direction from the Commission to heart and requires the President to establish a network of technologies and policies that will resolve conflicts between the need to share and the need to protect sources and methods. It will create and allow us to use the best technology to make sure we are sharing and culling and filtering and applying the vast amount of data we get from our intelligence networks most effectively.

Beyond intelligence reform, this bill contains much more. In fact, the 9/11 Commission made 41 recommendations to protect our Nation from terrorism. In August, Senator McCain and I drafted legislation to address them all. I am pleased and proud to say I am grateful for the conferees, to the Senate, and to the House that most of those initiatives have become part of this conference report.

For example, the 9/11 Commission observed that many of the actions necessary to protect us in the war against terror also involves a consolidation of governmental authority and the increased presence of government in our lives to protect us. In response, the Commission called for ``an enhanced system of checks and balances'' to protect the civil liberties that define us as Americans. In fact, this conference report creates a Privacy and Civil Liberties Oversight Board.

The Board will have two functions. First, to advise the President and Federal agencies at the front end of policymaking and, second, to conduct oversight at the back end, investigating and reviewing Government actions to determine whether executive branch officials are appropriately respecting the individual freedoms of the American people.

The 9/11 Commission also recognized the futility of combating terrorism only by military means. Of course, we have been, and will continue, doing our best to capture and kill all the terrorists we can as soon as possible. But we understand that ultimately what is required to stop the growth of terrorism are initiatives of foreign policy, diplomacy, economics, and of politics.

Our legislation--this conference report--includes many of the provisions recommended by the Commission which will do just that, including increased American foreign assistance to Afghanistan and a renewed U.S. commitment to Pakistan. It provides enabling authorities to help us win ``the struggle of ideas'' through the greater funding and use of much more imagination in American broadcasts to the Islamic world. It calls for broadening and growth of scholarships and exchange programs between the United States and the Muslim world, with students and faculty going back and forth.

The bill also takes aggressive measures to prevent attacks, as well, by targeting terrorist travel, improving screening at entry and exit points, and securing identification documents.

Our legislation requires secure identification for travel documents for all travel into the United States. This was a topic about which much was said and debated in the conference, and before, during, and after House adoption of this conference report yesterday. I guess the conferees, in their wisdom, decided some of the immigration reform in the House bill would have weighted the bill down and inhibited or prohibited its passage. It is urgently needed and we cannot afford to do that. We will get to that next year.

Make no mistake, this conference report contains some tough antiterrorist law enforcement measures, and some tough immigration enforcement measure. It specifically implements the 9/11 Commission Report recommendation for the Federal Government to establish minimum standards for birth certificates, driver's licenses, and personal identification cards. Those provisions will help decrease fraud so terrorists are not able to hide their identity. They will not deprive the States of the right that States understandably want, to determine, not the form of the driver's license, but who is eligible to receive a driver's license within their States.

Other measures in this conference report will go far to tighten border security. It will increase the number of border guards, immigration officers, and detention beds for those who are being held for legal action and other action to determine their immigration status and whether they should be deported. No longer will we have a case, as in the past, where a challenge is made to someone's immigration status but they are allowed to wander and disappear into the vastness of America. There will be thousands of new beds created, detention facilities, to hold those people while their cases are being reviewed.

We added a provision allowing the Government to deport anyone who has received military training from a terrorist organization. The Government will also be able to obtain a Foreign Intelligence Surveillance Act warrant for anyone engaging in terrorist activities even if they are not clearly connected to a specific terrorist organization. That is common sense, but it is not in the law now.

To better safeguard the Nation's transportation networks, this legislation also requires the Department of Homeland Security to produce a national transportation strategy that evaluates the risks faced by all modes of transportation, not just aviation, and sets some clear priorities and deadlines for security needs.

We also have included measures to help first responders, the hundreds of thousands of men and women, largely in uniform, some out, at the local and State levels. We want to help them obtain interoperable communications equipment so in a crisis they can talk with each other and work cooperatively.

I have long believed if we are going to make sense of what happened on

September 11 we need to look back honestly with clear eyes and honest hearts. The 9/11 Commission's extraordinary work enabled us to do just that. Its 587-page report did not close the book on September 11. It will never be closed. The legislation does not close the book on September 11. It will live alongside December 7 as a day that will live in infamy throughout American history and America's future.

The work on this conference report and its adoption today will open a new chapter for a safer America. Chairman Kean has said:

Our biggest weapon of defense is our intelligence system.

If that doesn't work, our chances of being attacked are so

much greater. So our major recommendation is to fix that

intelligence system and do it as fast as possible.

That is exactly what this historic legislation does.

In this Congress, this President fulfills our constitutional duty to provide for the common defense of our Nation. I said before that many can claim to be parents of this victory. Members of both parties in Congress, leaders of both parties, bipartisan leadership in this Chamber certainly stood by Senator Collins and me all the way. This simply would not have happened without the support of the President of the United States, the Vice President of the United States, and their staffs, working hard and long to do something that institutions and government do not do easily, which is to change. If it was easy, the 20-some-odd attempts made in the last half century to reform our intelligence system would have worked, would have succeeded. They did not.

This is about to succeed because of the effort that has been made across party lines in the national interests by everyone from the President of the United States to every single Member of Congress who worked hard on this measure.

Maybe I should add another thank you. Maybe I should go from the President to our staffs. Senator Collins has said the legions of staff members on both sides of the aisle and both sides of the Capitol put their lives on hold and worked through nights and weekends for the cause of a safer America. I particularly thank Kevin Landy on my staff, whose work started with the legislation to create the 9/11 Commission-- that was a story in itself--and who has been single minded in his devotion to crafting this legislation in a way that was real and excellent. I also single out the work of Majority Staff Director Michael Bopp, and all of his team. Michael has terrific legislative skills and leadership abilities and has served the conference and the country extraordinarily well. On my staff I also thank my staff director Joyce Rechtschaffen, and Dave Barton, Mike Alexander, Raj De, Christine Healey, Holly Idelson, Beth Grossman, Larry Novey, Jason Yanussi, Kathy Seddon, Dave Berick, Mary Beth Schultz, Tim Profeta, Fred Downey, Andrew Weinshenk, and Donny Ray Williams, Leslie Phillips, Bill Bonvillian and Laurie Rubenstein. I could go on and on. Many other staffers of other Senators contributed much to this bill and I thank them. I would especially like to thank Marianne Upton and Joe Zogby from Senator Durbin's staff. And I particularly express my personal appreciation, in this and so many partnerships we have been involved in, to Senator John McCain of Arizona, and to his staff. We worked in close partnership to craft the legislation implementing the 9/11 Commission recommendations. Many provisions were adopted in the Senate and are integral parts of the conference report. I thank them all.

I come back to the beginning to particularly thank my colleague and friend, our chairman, Senator Susan Collins of Maine.

I ask unanimous consent to have printed in the Record two documents from the 9/11 Public Discourse Project regarding driver's licenses and military chain of command.

I yield the floor.

I ask unanimous consent that Senator Carper of Delaware be given 5 minutes to speak at an appropriate time of the time allotted to me.

In drafting this legislation, we fully considered the finding of the 9/11 Commission that Senator Collins refers to, and we designed the bill to foster a shift away from a ``need-to-know'' culture of excessive secretiveness, toward a more integrated and open culture of ``need to share.'' The bill assigns key responsibilities to the DNI and to the President to achieve this shift in culture.

The bill makes the DNI responsible for establishing guidelines for the intelligence community to ensure maximum availability of, and access to, intelligence information within the community, and to maximize the dissemination of intelligence consistent with protection of sources and methods. The legislation recognizes that there will sometimes be a tension between the need to share intelligence information and the need to protect intelligence sources and methods, and the DNI will be responsible for establishing policies and procedures to resolve any conflicts in this area. The DNI's guidelines are to foster a shift from a culture of undue secrecy by, among other things, allowing for dissemination of intelligence products at the lowest possible

level of classification consistent with security needs--and in unclassified form to the extent possible.

The President will be responsible for also establishing an information sharing environment for communicating terrorism information beyond the intelligence community. This program will facilitate the sharing of information among all appropriate Federal, State, local, and tribal entities and the private sector. To help shift from a culture of undue information protection that can impair our security efforts, the legislation instructs the President, among other things, to require a reduction in overclassification of information. The President will also issue guidelines to ensure that information is provided in its most shareable form, such as by using ``tearlines'' to separate data from the sources and methods by which the data is obtained.

I could not agree more. This legislation is designed to enable the Governmental and non-Governmental entities with security responsibilities to have access to the intelligence information they need to do their jobs. And the legislation will also enable and encourage the diffusion of information about terrorism to the American people. It has often been said that an informed citizenry is a bulwark against tyranny, but an informed citizenry is also a bulwark against terrorism. By fostering the diffusion of information, consistent with the need to secure intelligence sources and methods, the legislation should help enable the American people to have the information they need to make informed decisions about the threats our nation faces and the steps we must take to overcome those threats.

Mr. President, we gather today in the Senate for an historic occasion. What we are about to consider is a conference report on the Intelligence Reform and Terrorism Prevention Act of 2004. In about 250 written pages, we will literally rewrite the laws governing the intelligence community of America.

This is an historic moment. It is rare, if ever, that the Congress rises to the occasion as it has with this legislation. It is rare, if ever, that we can find a bipartisan consensus on an item of such controversy. Yet we have achieved it. The National Security Intelligence Reform Act will make America safer. It will force our Government to modernize the way we collect and use intelligence.

This legislation was born from the tragedy of 9/11 and the determination of the victims' families that their loved ones would not have died in vain. These courageous survivors are the reason this congressional effort could not and did not fail. In their grief, many people tend to withdraw, to say that they will mourn in private. These victims' families, after a period of mourning, decided to step forward and to lead our country and our Government toward a safer America. Their dedication and their determination have resulted in this document.

The bipartisan 9/11 Commission gave us an excellent blueprint, a sense of urgency, and a constant reminder that we had to rise above our partisan differences. We all know about this report. It is so well known and so well read. It was even nominated as one of the great literary works. That is rare for a Government publication, but it deserved that nomination because it is well written, well thought out, well prepared. Governor Kean of New Jersey, Congressman Lee Hamilton of Indiana put together an extraordinary panel of Democrats and Republicans who brought us this report. And this report was our blueprint, as we sat down to write this historic legislation.

My personal contributions to this bill were in two specific areas. After three years of effort, we finally broke through the technical and bureaucratic obstacles to information sharing among our intelligence agencies by adopting a proposal which I suggested for a new government- wide approach, one with clear goals and clear authority to reach the goals. And for the first time, at the suggestion of the 9/11 Commission, we added to our intelligence efforts a privacy and civil liberties board which was crafted to ensure that we do not pay for our security with our freedoms. Let me salute those who made this possible, particularly on the Senate side.

Senator Susan Collins, chairman of the Governmental Affairs Committee, has really been an extraordinary leader. She is a close friend. We have worked on so many things together. I knew she would rise to the occasion, but I didn't know that she would have the endurance and the determination to bring it to this day. I watched as the conference committee drove on and on, day after day, hour after hour, week after week, month after month--many times appearing to disintegrate before our eyes. She never quit. She just kept pushing forward. She did it not just with a determination, but with such a unique understanding of what was in this conference report. She would dismiss critics in a moment if they misstated what was within the report. She knew it cover to cover. She was well prepared.

Had Senator Collins been doing this alone, she might not have achieved her goal. Standing by her side throughout was Senator Joe Lieberman of Connecticut. Joe is my colleague in the Senate, a good friend, and a great Senator. I think what he did with Susan Collins was to demonstrate to America what Congress can do, that we can rise to the occasion, that we can put aside partisanship and have a genuine, honest discussion for the good of this country. That dynamic duo of Senator Susan Collins of Maine and Senator Joe Lieberman of Connecticut, on our side of the Rotunda, were the guiding force.

I want to say a word about Congresswoman Jane Harman and Congressman Peter Hoekstra who, on the other side of the Rotunda, on the House Intelligence Committee, did an extraordinary job as well.

They would be the first to add that they could not have achieved any of this without extraordinary staff contributions. On my own staff, I salute Marianne Upton, who has put in more hours than you could possibly imagine, doing around-the-clock sessions, preparing different portions of this bill; Joe Zogby, an attorney on my staff who really carried the banner many times on issues of civil rights and civil liberties, oftentimes a lonely battle, not always successful but with a real determination and extraordinary skill that he brought to the Senate; and Shannon Smith, a member of my staff who looked at this bill from the perspective of defense issues and foreign policy issues. Those three, from my point of view, made my presence felt, even when there were times I could not be in conference committee meetings.

The path that led us to this point has not been without obstacles. We had to make major compromises in order to move the legislation forward. But this conference report proves that Congress could work in a bipartisan manner to bring together strength and wisdom and produce this significant bill.

Many people recall what happened on 9/11 and where they were when they learned of the tragedy. I remember. Everybody listening remembers. We also remember that late in the evening, after that sad and worrisome day, the Members of Congress, on a bipartisan basis, gathered on the steps outside and together sang God Bless America. How many times as I went through Illinois and across this country people would say: That was a good thing. We were sure glad you did it, to put aside your differences and to stand together.

That day was a precursor of this day because this day we will stand together again. There will be a vote today that will be a bipartisan vote, and it will be a clear and definitive victory for the passage of this legislation.

Let me speak to two or three areas that were of particular importance. First, the Privacy and Civil Liberties Oversight Board. The 9/11 Commission realized that one of the problems we have is when we give Government enough power to protect us, occasionally it overreaches. That has happened in virtually every war and in every period when there was a threat to our national security. Abraham Lincoln, who I believe to have been our greatest President, suspended habeas corpus during the Civil War. There were those who said he went too far in usurping the Constitution. During the period of World War I, when there was concern, we had the Espionage and Sedition Acts, which some believe was an overstepping of governmental authority. In World War II, Franklin Delano Roosevelt gave personal approval to the Japanese internment camps, where innocent Americans were, in fact, jailed and imprisoned when they had done nothing wrong, just for fear that they might. In the Cold War, with our fear of the Soviet Union, we went into the McCarthy era, questioning the patriotism of good Americans, destroying lives and careers in the process. During the Vietnam war, J. Edgar Hoover and the FBI compiled a list of suspects across America. The President compiled an enemies list.

This list goes on and on. It tells us that as we try to be safe, sometimes we go too far. The 9/11 Commission said we need to put into place something that is unique, has never existed in history. This Privacy and Civil Liberties Oversight Board will make certain they keep an eye on Government activity, make sure it doesn't violate privacy or civil liberties. I agree with the Commission when the Commission said to us ``the choice between security and liberty is a false choice.'' I believe, the Commission believes, we can be both safe and free.

We can protect the lives of Americans, and we can also protect their liberties. That is what the Board is setting out to do.

As Governor Kean said in answer to a question I asked, this Board should be ``disinterested'' and it should not be speaking for the Government. It should be independent in its oversight of the Government and its activities. This Board will have the authority to obtain information, to ensure the Government is respecting our privacy and civil liberties. If someone outside of the Government refuses to provide needed information, the Attorney General will have authority to subpoena it.

There is an exception for the National Intelligence Director and the Attorney General to withhold information in the interest of national security. That is understandable, but members of the Board and the Board's staff will have high-level security clearances, so we expect that it will only rarely, if ever, be necessary to invoke this national security exception.

The Privacy and Civil Liberties Oversight Board will be required to report to Congress about its work on an annual basis. These reports, to the greatest extent possible, will be unclassified so we can all look at the activities of our Government when it comes to respecting privacy and civil liberties. This transparency will keep us informed. The bright sunlight will shine on these activities when it doesn't compromise national security. This Board will ensure that as we fight the war on terrorism, we will respect the precious liberties that are the foundation of our society.

The second area I worked in that I think may turn out to have historic importance relates to information sharing. When the 9/11 Commission Report came out a little over 135 days ago, they kept referring to one basic theme. This is what the report said:

The biggest impediment to all source analysis--to a greater

likelihood of connecting the dots--is the human or systemic

resistance to sharing information.

I have really focused on this since 9/11. So many colleagues looked at different aspects of the challenge created by that terrible day. When I looked at information sharing, the first thing I did was turn to the FBI, the premier law enforcement agency in America, the top of the heap, the best and brightest when it comes to law enforcement. I asked the basic question: Tell me about the computers at the FBI headquarters on September 11, 2001.

Do you know what I learned? Just three years ago, if you looked at the computers at the FBI, you found computers with no e-mail capacity, no access to the Internet, no mechanism for word/name search matching, and no capacity for the electronic transmission of photographs. Anyone listening--particularly younger people--have to shake their heads and say: Senator, they could have gone down to the local computer store and bought a basic computer that had all of this capacity.

What happened? Why did the FBI fall so far behind in technology? What happened was, in their vanity and in their bureaucratic protectionism, they said: We don't need to go to other firms creating computers. The FBI will create its own computer system.

They did and what a mess it was. On September 11, 2001, the technological capability of the FBI was virtually nonexistent when it came to computers. That is hard to imagine, isn't it?

As I spoke to every level that I could of Government leadership, including Vice President Cheney; Attorney General Ashcroft; FBI Director Mueller, every one of them conceded that this was an obvious problem. Let me tell you something else. We asked the FBI and the Border Patrol to establish a common fingerprint database.

That makes sense, doesn't it? If we are going to bank all the fingerprints of suspects around America, wouldn't the Border Patrol want to have an integrated network of fingerprints they could check against the FBI base?

Let me tell you where we are on that. For more than six years, we have been trying to achieve this. For more than six years, we have been trying to get two agencies of Government to cooperate in comparing fingerprints. Earlier this year, the inspector general of the Justice Department reported it would take at least four more years to combine the systems.

I am sure a lot of people following this debate are saying: He has to be exaggerating. Why would it take ten years to reach the point that the fingerprints collected by one agency of the Federal Government could be compared to the fingerprint database of another agency?

It is a fact. It has to do with two things. First, it has to do with equipment. It has to do with technology. And second, it has to do with a mindset of cooperation rather than exclusion.

That is what led me to this whole issue of information sharing. I tried to encourage a debate on this issue when we created the Department of Homeland Security. I said to my colleagues on both sides of the aisle: It is great for us to talk about a new department bringing together all these agencies, but if they do not have compatible computer databases and the will to share, then we are going to lose out when it comes to information gathering.

I did not win that debate when we created the Department of Homeland Security, but I am happy to tell you that we have won the debate when it comes to this bill.

It is distressing to read chapter 8 of the 9/11 Commission's report entitled ``The System was Blinking Red.'' It is hard to make sense out of the information-sharing breakdowns before September 11.

Mr. President, I ask unanimous consent for 10 additional minutes.

On July 10, 2001, an FBI agent in the Phoenix field office sent a memo to FBI headquarters and to two agents on the international terrorism squads in the New York field office advising of the ``possibility of a coordinated effort by Osama bin Laden'' to send students to the U.S. to attend civil aviation schools--the famous Phoenix memo.

This Phoenix memo went into the system and virtually disappeared. On its face, this memo was fair warning. This memo was a flare that went off, climbed into the sky, and flashed a warning of danger, and no one noticed. This was July 10, 2001. The Phoenix memo went forward, and it disappeared in the sky without even notification.

The notice was there. Something needed to be done, but no one responded within the FBI or in the other appropriate agencies.

As we learned, the Phoenix memo was not an alert about suicide pilots. We learned the author was more concerned about a Pan Am 103 scenario. The fact is, whether they are talking about the Phoenix memo or what led up to the intelligence investigation involving Zacarias Moussaoui, we did not have a sharing of information among agencies that might have protected America and the 3,000 victims on September 11.

For well over two years, I have urged that we do something profound and historic. I thought about the Manhattan Project. That was a project, if you recall, that dates back to the attack on Pearl Harbor. Prior to that attack, Franklin Roosevelt had his atomic project that was looking into this new scientific research when it came to use of the atom. It was moving along at a snail's pace, and then came December 7, 1941. On that date, the President said we were shifting into a new approach. We want to know if we can use this new research in science to create atomic bombs, weapons that we may need in this war.

He shelved the commission that had been working on it and created a new group under the head of GEN Leslie Groves. GEN Leslie Groves, who was involved in the Army Corps of Engineers, dubbed it the Manhattan Project. What the general said was we are going to break all the rules. We are going to have Government leadership to develop this atom bomb, but we are going to turn to the academic side, the universities doing research, and we are going to turn to private business, and we are going to create what this country needs to defend itself. And we did. The Manhattan Project met its goal and produced the bombs that ended the Second World War.

I thought we needed something very similar when it comes to information sharing and technology in fighting this war on terrorism. This bill moves us in that direction. It creates an environment for us to have computers that communicate with one another, databases that can work with one another, information that can be shared. But all of the good words in this bill mean little or nothing if there is not the will in these agencies to make it happen, not only the person supervising this new environment, but each person who is involved at each agency to share this information and to make certain that we do not protect turf at the expense of protecting America.

Let me address one aspect of this bill--a bill which I am happy to support and will vote for--that is troubling to me. It is an aspect of the bill where we lost a provision in the conference which I think is very important.

That is a provision that was added in the Senate relative to the detention and humane treatment of captured terrorists. A provision in the Senate bill, which passed 96 to 2, addressed it. Unfortunately, the House Republican conferees insisted the provision be removed from the final version of the bill, so the bill is silent.

This is especially serious from my point of view because of the poor track record over the last several years when it comes to the use of torture.

In a January 2002 memo to the President, White House Counsel Alberto Gonzales concluded that the Geneva Conventions, which have guided us for decades when it comes to the humane treatment of prisoners, in the words of Mr. Gonzales were ``quaint'' and ``obsolete.''

In August 2002, the Justice Department sent a memo to Mr. Gonzales in which they adopted a new, very restrictive definition of torture. They stated that physical abuse only rises to the level of torture if it involves ``intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result.''

They also concluded that the torture statute, which makes torture a crime, did not apply to interrogations conducted under the President's Commander-in-Chief authority.

Under our Constitution, the President does not have the authority to make his own laws by creating a new definition of torture, and he cannot choose which laws he will obey. There is no wartime exception to our Constitution.

In November 2002, Defense Secretary Rumsfeld approved the use of coercive interrogation techniques at Guantanamo Bay. These included removal of clothing, using dogs to intimidate detainees, sensory deprivation, and placing detainees in painful physical conditions. According to a recent Red Cross report, the use of these techniques has grown ``more refined and repressive'' and constitutes torture.

There are so many unanswered questions about the administration's position on the use of torture. Mr. Gonzales said, ``We categorically reject any connection'' between the administration's torture memos and the abuses at Abu Ghraib, Guantanamo Bay, and elsewhere. But how can the administration reject these connections when the torture techniques that they approved for use in Guantanamo were being used in Abu Ghraib and elsewhere in Iraq?

Mr. Gonzales was recently nominated to be the Attorney General. I look forward to getting to the bottom of this issue when he comes before the Judiciary Committee in January.

The 9/11 Commission correctly concluded that the Iraqi prisoner abuse scandal has negatively affected our ability to combat terrorism. They wrote:

Allegations that the United States abused prisoners in its

custody make it harder to build the diplomatic, political,

and military alliances the government will need.

As a result, the Commission recommended that the U.S. develop policies to ensure that captured terrorists are treated humanely. That is exactly what we did in the Senate bill. In fact, the Senate provision is similar to an amendment which I offered to the Department of Defense authorization bill requiring that the Department issue policies to ensure that they will not engage in torture or cruel, inhumane, or degrading treatment, a standard embodied in our Constitution and in numerous international agreements.

The Senate intelligence reform bill would have simply extended these requirements to the intelligence community. What possible basis could the House conferees have had for opposing this provision, turning its back on the Geneva Convention's basic standards that we have held in this country for decades?

I think what we have here, unfortunately, is a decision by the conferees to be less than explicit about America's commitment. We need to make certain that we stand by standards which America has preached to the world for decades, that we realize we are not just not talking about detainees captured by our Government, but the potential treatment of Americans and American soldiers facing detention.

For us to remove this provision from this new bill is troublesome to me.

I think the intelligence community should be held to the same standards as the Department of Defense, and taking this language out of the bill will make that very difficult to monitor, as I hoped we would be able to do.

As the 9/11 Commission report admonishes, we have to think more imaginatively to protect America and use information in a more sensible and thoughtful way. Intelligence is the first line of defense against terrorism. With this legislation, our intelligence gathering, analysis, and application will be significantly improved. No agency can do it alone. Collective vigilance requires mutual cooperation and not just within the executive branch. We need to do our part on Capitol Hill.

Congress needs to be part of this new concerted effort. I am ready to work with administration officials to make this happen. I salute President Bush, Vice President Cheney, Speaker Hastert, and many other Republican leaders who stepped up to make certain they did their part to pass this legislation.

As we have done on the Senate side, we have demonstrated that this kind of bipartisan cooperation makes America a safer place.

Finally, thanks to the decision of my colleagues on the Senate Democratic side, I step into the capacity of the Senate whip, the assistant Senate leader, in a few days. As a result of that, I will have new responsibilities on the floor and more demands on my time. It was necessary for me to step aside from

my service on the Governmental Affairs Committee, which I really enjoyed during the period I have been in the Senate.

I am glad the last action of the committee was the passage of this important legislation. I think a lot of work that was put in in that committee paid off with the passage of it. I am going to miss this committee. I wanted to make certain that whoever would fill that slot would have the time to dedicate to its important work of protecting America.

I thank Governmental Affairs Committee Chairman Susan Collins, as well as Senator Lieberman, for all of the kindness they have extended to me during my period on the committee. I hope I will be able to continue to help them in my new capacity as the Democratic whip of the Senate.

I yield the floor.

Mr. President, for clarification, I will follow Senator Lieberman for 20 minutes. So it is Senator Collins and Senator Lieberman, and then I am up for 20 minutes?

Mr. President, I begin by congratulating the chairman, Senator Collins, and the ranking member, Senator Lieberman, for their extraordinary leadership in the beginning of the legislative process which has culminated in where we are today and their steadfast determination in pursuit of this bill throughout many arduous months.

Senator Collins and Senator Lieberman took up at the direction of the majority leader and the Democratic leader in structuring hearings which began at the end of July of this year immediately after the Democratic National Convention. They proceeded in August in an unprecedented way where the regular schedules were interrupted, a difficult thing to do in a campaign year. They reconvened the Governmental Affairs Committee on which

I served and the committee members were advised of schedules--difficult to do in a campaign season when many Members are up for reelection--but the legislative objective was of paramount importance and the committee responded and the committee pursued the hearings and came up with the legislation.

I believe what we have here is really a battlefield victory over the Department of Defense. The essential issue has long been a turf struggle, and I think we have taken a short step, but a significant one, in the legislation which is presented in the conference report today.

I do not think we should overstate where we have come, but I think, at the same time, we need to recognize we have stepped significantly forward, albeit a single step, as a result of the insistence of the President of the United States who deserves commendation for his leadership in the final stages of this matter to bring the legislation where it is today.

Where we have had a good bit of discussion on the issue of chain of command, I think realistically that has been more smoke than substance. But, at any rate, the key participants in the House of Representatives were satisfied so the bill did come to a vote in the House, and the Senate is ready to take the matter up today.

A great deal of credit is obviously due to the families of the 9/11 victims in their insistence that the 9/11 Commission be formed. And then great credit is due to the 9/11 Commission itself in structuring a report, which was filed in July, and then putting considerable pressure to have their report enacted.

I think, to repeat, the realities are that the final legislation is short of where the 9/11 Commission would like to have gone either with respect to budget control or with respect to day-to-day operations, but in the tortuous process of making changes in the intelligence community, the 9/11 Commission has been a catalyst here in a very important way.

It became apparent, when 9/11 occurred, that had there been proper coordination among the intelligence agencies that 9/11 might well have been prevented. There was that FBI report out of Phoenix about the suspicious character who was interested in learning how to fly a plane, not concerned about takeoffs or landings. That FBI report never got to the proper line in FBI headquarters in Washington.

Then, the CIA knew about the two al-Qaida operatives in Kuala Lumpur, but that information was never transmitted to the Immigration and Naturalization Service. It was not in the INS computers. Those al-Qaida operatives got into the United States and were two of the pilots on 9/ 11.

Then there was the FBI report out of Minneapolis with Special Agent Colleen Rowley, who wrote a 13-page, single-spaced report which finally received public attention, finally came to the attention of the key officials of the FBI.

The Judiciary Committee held hearings in June of 2002, and there was surprise and consternation that the appropriate test under the Foreign Intelligence Surveillance Act had not been applied. Had that material been known and had we been able to pick up the trail of Zacarias Moussaoui at an early date, again the case was building that 9/11 might well have been prevented, had these facts come to the attention of the appropriate authorities and been collated and put all under one umbrella.

So the need was imperative for revision and reform of the national intelligence system.

I had seen this need when I chaired the Senate Intelligence Committee back in the 104th Congress. At that time I introduced S. 1718, which contained very material changes in the national intelligence community. I will not put that legislation in the Record at this time. I have done so on prior debates. But it was apparent at that time there needed to be a revision of the national intelligence community. While the Director of the Central Intelligence Agency had paper authority, he did not have budgetary authority or day-to-day control sufficient to really put all of the intelligence operations under one umbrella.

Following 9/11, after the report from Colleen Rowley came to light in June of 2002, the administration agreed there should be a new Department of Homeland Security. Senator Lieberman and I introduced S. 1534, 30 days after 9/11, on October 11 of the year 2001. The hearings were held and there was considerable debate, and the legislation languished and had a lot of opposition. It finally came to the Senate floor in the fall of 2002. Then, as what frequently happens, the House passed a bill and left town, leaving us with the option of either taking their bill in October of 2002, which was an election year, or putting the matter over, which would have gone to spring.

At that time, Senator Lieberman and I made an effort to give the new Secretary of Homeland Security authority to direct--not to task or not to ask or not to request but to direct--the other intelligence agencies. It seemed to us when you were creating a new Department that this was the time to make some fundamental changes in the national intelligence structure. But the administration was opposed.

I talked to Secretary Ridge, Vice President Cheney, and I talked to the President, and there was opposition, as concerns had been expressed to putting any agency or any instrumentality or any unit between the CIA and the President. It seemed to me--and I made this argument--that would not have been the case. But we were unable to make that modification. That is where the status of the record lay, until the 9/11 Commission came into operation and filed its report in July of this year.

Immediately thereafter, Senator McCain, Senator Lieberman, Senator Bayh, and I introduced a bill which tracked what the 9/11 Commission wanted done. When the Governmental Affairs Committee took up the issue, with the hearings in July and August, it seemed to me we needed a bill which gave a great deal more authority to the National Intelligence Director than where the committee was heading, and I introduced S. 2811, which gave the National Intelligence Director authority. I am not going to make that bill a part of the Record. It has already been made a part of the Record in prior debates.

The committee report did not give the National Intelligence Director day-by-day authority, which, as I say, I thought it should have. I offered an amendment which had cosponsors, including the former chairman of the Senate Intelligence Committee, Senator Shelby; the present chairman of the Intelligence Committee, Senator Roberts; and many others who had very extensive experience on the intelligence structure for the country. I offered that amendment on the floor, and it was defeated by a vote of 78 to 19, so that the National Intelligence Director in the Senate legislation was not given day-to- day operation.

It was my thought then, and continues to be my thought, that if we raised the bar a little higher, perhaps in the negotiations--as we know, as a practical matter, in a House/Senate conference there are compromises--we might have ended up with a stronger Director than we have at the present time. In the course of the negotiations with the House, the budgetary control was not maintained.

So what we have today is a step forward. But there is a great deal more, in my judgment, of which the National Intelligence Director needs to have effective control over in the national intelligence community. But again, this is a step forward, not a big step but a significant step, and it is something upon which we can build.

It would be a colossal mistake to reject this bill with the thought of going back to the drawing board next year to begin again what we have accomplished, putting us on another plateau from which we can work.

We have in this legislation significant improvements on transportation security, on terrorist travel and effective screening, on border protection, immigration and visa matters, on terrorism prevention. We do have those areas of very significant improvement.

I believe that Congress is going to have a big job of oversight now, to see precisely what is done by the new National Intelligence Director. We have changed our Senate procedures to make permanent the Intelligence Committee so there will be some institutional knowledge there without the shift on 8-year terms. I served 8 years on the Intelligence Committee and had an opportunity to chair the committee

in the 104th Congress. That continuity will be very important.

On the Appropriations Committee on which I serve, we have structured a new intelligence subcommittee. In the line of seniority, I may have the opportunity to chair that subcommittee. That is something I am thinking about. I am reluctant to give up the subcommittee on Labor, Health, Human Services, and Education, but when we move forward from this point on the restructuring of the national intelligence community, this is a very significant period and is something to which I am giving personal consideration.

The creation of the new National Counterterrorism Center is a significant step forward. That has been an outgrowth of the mistake recognized by the intelligence community from 9/11. That had been in process, and this legislation takes a very important step beyond what is in existence at the present time, putting it into a statutory form. I have conferred with the top officials of the FBI, and the Judiciary Committee has oversight over the FBI. This is something which requires very substantial oversight.

It is my hope, depending on how the Judiciary Committee is structured next year, that this is something which the Judiciary Committee can accomplish. But the Intelligence Committee and the Governmental Affairs Committee and perhaps other relevant committees, Armed Services Committee, will have a big job in not resting on our laurels on legislation which will be enacted today. We ought not to take too much solace in laurels, although though it is justifiable to some extent. But there is a great deal more which needs to be done to see to it that there is the kind of coordination and that we have made a successful attack on the cultures of concealment which are present in the intelligence community.

I have seen that culture of concealment from the work that I have done on the Judiciary Committee on oversight for the past 24 years. I saw that culture of concealment in the Central Intelligence Agency in the 8 years I was on the Intelligence Committee. It may be that what has happened with the events of 9/11 and with the pressure of the 9/11 Commission, with the legislation on the Department of Homeland Security, that the intelligence community has been sensitized, perhaps even more than sensitized, perhaps more accurately stated, bludgeoned by congressional criticism and by public criticism over their failures to coordinate intelligence activities which, had they been coordinated, 9/11 might have been prevented.

In conclusion--the two most popular words in every speech--I urge my colleagues to adopt this legislation. I further urge my colleagues in both this body, the Senate, and the House to be vigilant, to pursue oversight, to see to it that the ultimate objective of coordination and centralized direction is obtained with this legislation as a significant starting point.

Far from perfect, it nonetheless provides a valuable foundation for future legislation and puts us on the path to meaningful intelligence reform. As such, I believe it is preferable to act now on a finite number of matters that can be accomplished immediately. Any attempt in the future to enact intelligence reform legislation from scratch, especially reform of intelligence budget matters, will be subject to the bitter turf battles involving the self-protection of entrenched bureaucratic prerogatives that have characterized this and past efforts at reform. And while the contentious issues of State driver's license standards and refugee asylum must be addressed, it is far better to do so in the context of hearings and additional input from interested parties. But simply starting over in the next Congress will likely accomplish little, if anything. Passage of this legislation--which includes a statutory requirement for the issuance of Presidential guidelines assuring that the statutory responsibilities of the heads of various departments of our government will not be abrogated--will provide a legislative base for Congress to build upon, while preserving the requisite military chain of command.

Valuable preliminary objectives have been accomplished in this legislation, consistent with the recommendations of the 9/11 Commission. This legislation creates a Presidential-appointed, Senate confirmed director of national intelligence, DNI, who, while not serving as the head of CIA, will 1. oversee national intelligence and provide all-source analysis on specific subjects of interest across the U.S. government, and plan intelligence operations for the whole government on major problems such as counterterrorism; 2. manage the national intelligence program and oversee the agencies that contribute to it; and 3. ``manage and direct'' the tasking of collection and analysis. The legislation also will establish a national counterterrorism center, with a Senate-confirmed director, for developing joint counterterrorism plans covering key missions, objectives to be achieved, tasks to be performed, interagency coordination of operational activities, and the assignment of roles and responsibilities in the consolidated counterterrorism mission. Also, under this bill the President must establish a national counterproliferation center which, as envisioned by the provision's sponsor, Majority Leader Frist, implements a key recommendation of my 1999 Commission to Assess the Organization of the Federal Government to Combat the Proliferation of Weapons of Mass Destruction. And the legislation will enable the implementation of other policy objectives that I have favored such as expansion of the electromagnetic spectrum to enhance first responder interoperability, deployment and use of explosives detection equipment at airport screening checkpoints, improved watch lists for passenger prescreening, improved border security, including an increase in full-time border patrol agents and detention beds, an increase in criminal penalties for alien smuggling, and for those who seek to use weapons of mass destruction, an increase in the number of serious criminal offenses designated as ``Federal crimes of terrorism,'' improvements in financial crime enforcement and terror financing abatement, authority to use our Foreign Intelligence Surveillance Act powers against ``lone wolf' terrorists, authorization to share grand jury information about terrorist threats with State and local officials, and development of a national strategy on terrorist travel and travel documents.

Many crucial objectives were not achieved, however. The budget execution authority deemed essential for the DNI to exercise genuine control over the intelligence community has been removed from the bill, so that the appropriation for the national intelligence program does not go directly to the DNI, and the DNI does not have authority to direct the allocation of funds to the various elements of the intelligence community. Further, the top line budget figure for the national intelligence program will be kept secret, and thus intelligence spending will remain unaccountable to the American people. The DNI is left with the power to ``develop and determine'' the national intelligence program budget, which is effectively the same authority that the current DCI is given over the National Foreign Intelligence Program budget by executive order. Also, personnel and transfer authority has been further diluted in this final legislation. Specifically, while the DNI can move intelligence community funds in their year of execution, the heads of the intelligence community agencies will have a right of refusal over any reprogramming or transfer exceeding 5 percent of their agency's aggregate budget, or exceeding $150 million, or involving the termination of an acquisition program, e.g., satellite procurement. Personnel transfer is also tightly circumscribed and can be accomplished only with the approval of the Office of Management and Budget.

Beyond budget and transfer authority, the new DNI has not been granted authority that approximates what I consider to be the appropriate level of operational control over the various elements of the intelligence community. The DNI also does not have, as the 9/11 Commission recommended, ``hire and fire'' authority over senior intelligence community officials, but rather has the right of concurrence in the hiring of senior intelligence community officials and the right to be consulted in the appointment of the head of DIA. Nor does the DNI control information infrastructure standards.

I also believe that the failure to include a statutory inspector general weakens the oversight of the new DNI

and thus raises additional privacy and civil liberties concerns.

Finally, the legislation sets up an inadequate structure within which the DNI must operate. I had initially proposed that the DNI serve as the head of an independent agency, or department, and the final Senate bill arrived at a similar ``National Intelligence Authority'' to house the office of the DNI and the national counterterrorism center. Contrary to the concepts conceived in the Senate, the NCTC and the DNI's officers under this legislation will be housed within the office of the DNI. In other words, there is no power base from which the DNI can operate. He will have no ``troops'' other than those that filter through the NCTC and the office, and no actual authority with which to influence, direct, or control intelligence community entities and personnel.

These shortcomings must be addressed in future legislation if we are to have an intelligence apparatus that can be effective against 21st century threats, while protecting constitutional rights.

It will not be easy, however, to overcome the ingrained bureaucratic tendencies to protect turf and the status quo. It has recently been reported that the Department of Defense fought extremely hard during the conference committee negotiations to further reduce the powers that would be accorded to the DNI. My experience in attempting to enhance the budget and operational authority of the Director of Central Intelligence in 1996 led me to the conclusion that the same turf battles existing prior to 9/11 would endure during the process of formulating this most recent attempt at intelligence reform. Unfortunately, this is precisely what has occurred this year and, like in 1996, the Pentagon has successfully attenuated intelligence reform legislation.

Thus, while we have gained marginal advantages over current law and practice in this legislation, the conference report in its totality should be viewed as the basis for building upon the powers of the DNI in future legislation. Conversely, if we reject this bill, it is ``back to the drawing board'' when we reconvene with an entirely new set of priorities to tackle in the next Congress. This delay will allow reform opponents the time and renewed vigor to marshal their resources in opposition to changing the status quo. It is far less likely that we will accomplish anything meaningful on intelligence reform next year if we must start from scratch, lacking the momentum of the 9/11 report and without the pressure of the congressional and presidential elections.

I thank the Chair and yield the floor.