Stop Terrorist and Military Hoaxes Act of 2004

Mr. President, today we vote on the conference report on the intelligence reform bill, S. 2845/H.R. 10. As did the House, we will approve it and send it on to the President for his signature.

I strongly believe that our intelligence community must be reformed and appreciate the hard work in support of that objective of those Senate and House Members who have worked on the problem.

Nonetheless, I have mixed feelings about this legislation. I am neither convinced that it will fix the core problems in our intelligence community, nor that it will do no harm. Particularly in time of war, prudence demands Congress fully understand the consequences, both positive and negative, of its actions, and be cautious about mandatory change. At the same time, there are some positive reforms that can be easily implemented. I note the inclusion in the conference report of a number of much-needed provisions, which will help to ensure we have the legal authorities and resources we need to effectively fight terror. In fact, title VI includes about half of the provisions of the Tools to Fight Terrorism Act, S. 2679, an omnibus antiterrorism bill that I introduced earlier this year with several other members of the Judiciary Committee and Senate leadership.

This is the second time the intelligence reform measure comes before the Senate. We previously considered the Senate version in October, prior to the Presidential election. I voted for it to ensure a modified version could be worked out in conference, and, in the interest of allowing it to move quickly, withdrew an amendment on privacy and civil liberties oversight about which I felt very strongly. I did so with great reservations because of the many deficiencies in the Senate bill, but was assured that my concerns would be addressed in the House-Senate conference. I know that a number of my Senate colleagues voted for the bill with a similar understanding.

Unfortunately, I don't believe that some of the commitments to address Members' concerns were fully honored, and I regret that our vote for the bill was used by Senate conferees to suggest almost unanimous Senate support in order to influence House conferees to support the Senate version. The Senator from Maine said the following on October 20: ``I'm very proud of the fact that the Senate produced a bill that passed with only two dissenting votes, and I hope that we can likewise produce a product from this conference that will be signed into law shortly.'' In retrospect, it would have been better to have voted against the flawed Senate bill so House conferees would have understood that it did not enjoy universal support.

Over the last 2 months, I pressed my case on privacy and civil liberties oversight and other issues with the Members of the conference committee, the White House, and others. I know that some of my colleagues have done the same. I have studied carefully the final product on which we will vote, and, though some changes have been made, I still have serious reservations that I will discuss today.

To summarize: Regarding the central thrust of the bill, reorganization does not necessarily equal reform. This bill does reorganize; but it remains to be seen whether this reorganization will improve or damage the system we currently have in place that gets timely intelligence to our warfighters on the ground. Second, though some changes have been made to the language originally adopted by the Senate, I continue to have serious concerns about the effect of the privacy and civil liberties oversight provisions on the ability of our intelligence officers to perform their missions. I am concerned that the manner in which this oversight will be conducted will exacerbate the problem of risk aversion identified by the 9/11 Commission and the Congressional inquiry on the 9/11 attacks. Third, while I am pleased that some House provisions to reform immigration, as well as a provision I offered as an amendment to the Senate bill, were included in the final conference report, I am very disappointed that we have passed up an opportunity to do more in this area to protect our country.

Fourth, while noting my concerns about the intelligence reorganization portion of this conference report, I do want to recognize the inclusion of some important provisions from my Tools to Fight Terrorism Act.

During the debate on the Senate version of the intelligence reform bill, I discussed in detail the shortcomings of the 9/11 Commission's recommendations, on which that bill and this conference report are based. Former Secretary of Defense James Schlesinger aptly summarized what I believe to be the key problem: ``[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.''

A number of former officials also cautioned Congress from acting hastily to pass legislation without a complete understanding of the problems. For example, the Center for Strategic and International Studies released a statement before the original Senate vote on S. 2845, which warned: ``Rushing in with solutions before we understand all of the problems is a recipe for failure.'' 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.

In recent weeks, the editorial pages of several major papers, while not necessarily sharing the same substantive positions, have strongly urged Congress to begin a new process next year to pursue intelligence reform, rather than rush to pass legislation this year. The Wall Street Journal in a November 22 editorial commented: ``If this reform is really so vital, it will get done, but better to do it in a more considered fashion next year.'' Similarly, in response to Congress not considering the

conference report before Thanksgiving, the Washington Post ran an editorial which stated: ``. . . the legislation's failure strikes us as a benefit. More time and more careful deliberation is needed before such sweeping changes are enacted.'' And the Washington Times ran an editorial on November 30 which advised: ``Intelligence reform is necessary, and reasonable people can disagree on what constitutes a good bill without being insulted. Rather than getting it now, we urge Congress to focus on getting it right.''

I don't believe we can say with reasonable certainty that we are getting it right. In large part, this conference report sets up a new bureaucratic structure. It does not, however, tackle the more difficult issue of resolving cultural problems within the intelligence community, including risk aversion, group think, and a failure of leadership. These problems, along with other matters, like immigration reform and legal tools and resources for fighting terror, all identified by the 9/11 Commission, must be addressed if we are to improve our ability to predict and prevent future terrorist attacks. Indeed, those who say that this bill is needed to prevent another 9/11 can no more guarantee that result than those who advocate the status quo, reason being that neither scenario really gets at the core issues.

Additionally, and as I already mentioned, we should be mindful of the fact that we are making drastic changes to the structure of our intelligence community and the process by which it operates, while our country is fighting a war. I discussed these concerns on the floor of the Senate during the floor debate on S. 2845, the Senate version of the intelligence bill, stating:

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 Schwartzkopf's

view that the national intelligence support during Desert

Storm was not adequate. Now, as we've 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 mark-up 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.''

The chairmen of the House and Senate Armed Services Committees, as well as other Members of the House and Senate, have played a vitally important role in conference negotiations to make sure that intelligence support to our combatant commanders will not be disrupted. They worked tirelessly to see that changes, some of which the Chairman of the Joint Chiefs of Staff said were needed, would be included in the conference report. I applaud their efforts, and appreciate the changes that conferees were willing to make.

Many of the potential defense-related pitfalls of the reorganization that I discussed in the context of the Senate bill have been improved upon. One crucial change is the following provision intended to ensure that the military chain of command is protected: ``The President shall issue guidelines to ensure the effective implementation and execution within the executive branch of the authorities granted to the Director of National Intelligence by this title and the amendments made by this title, in a manner that respects and does not abrogate the statutory responsibilities of the heads of the departments of the United States Government concerning such departments . . .''

Despite the improvements that have been made, and the protections that have been added, I still believe that we simply don't know for sure how the changes we are making will affect the system we currently have in place to support our men and women in uniform. For that reason, we must commit to carefully monitor this legislation's implementation, specifically, the DNI's authority to transfer military personnel within the National Intelligence Program, authority to reprogram and transfer funds, and the role of the DNI in intelligence acquisition programs managed largely by the Defense Department--and be prepared to make changes if necessary.

Perhaps the key concern I have with this conference report is its privacy and civil liberties oversight provisions, which are totally extraneous to any problem related to 9/11 and will exacerbate the cultural problems in the intelligence community, in particular, the problem of risk aversion.

Risk aversion, which plays out not only in the intelligence community, but also in foreign policy decisionmaking, economics, business investments, and so on, is the tendency to avoid action which might be criticized after the fact because of a poor outcome. There are many potential causes a particular action might have adverse, unintended consequences, might get one into trouble with one's superiors, or might simply draw unwanted attention. 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. Risk aversion has contributed to numerous intelligence failures, including the September 11 attacks, according to the 9/11 Commission.

One contributor to risk aversion is the belief that third parties, including congressional committees, will challenge decisions after the fact. The Privacy and Civil Liberties Oversight Board included in the Senate bill is just such an institution.

I introduced an amendment to the Senate bill which would have modified the privacy and civil liberties oversight provisions because I strongly believed that the bill would have exacerbated the problem of risk aversion by creating a redundant oversight bureaucracy and an unaccountable oversight Board with inappropriate authority over Government officials and private individuals. The bill went far beyond the recommendation of the 9/11 Commission, which was to create an executive branch board to oversee privacy and civil liberties and advise the

President. The President created such a board through Executive order in August.

In summary, the Senate bill would have established: 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, would monitor and inform 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; a 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.

While I believe that privacy and civil liberties should be protected, I do not believe that oversight should be conducted in a manner that causes intelligence officers to be more worried about getting into trouble than about performing their missions. The question is whose civil liberties are jeopardized by improvement of our intelligence capabilities? The Taliban? Al-Qaida? Saddam Hussein? Not American citizens. The attacks of 9/11 were not caused by civil liberty deprivation; but by inadequate intelligence and immigration law deficiencies. So why hobble intelligence capabilities because of a perceived problem that has never been identified and was in no way involved in the 9/11 attacks? To the extent there is concern about laws such as the Patriot Act, they can be dealt with in the reauthorization of that Act. Such concerns have nothing to do with intelligence reorganization.

My amendment would have eliminated some of the redundancy, for example, by paring back the number of officers within the office of the National Director of Intelligence responsible for privacy and civil liberties oversight, and altered the power of the Privacy and Civil Liberties Oversight Board by eliminating subpoena authority and the Board's authority to compel executive branch compliance with its requests.

In the interest of allowing the intelligence bill to move forward quickly through the Senate, and noting that the House bill's provisions on the subject were more reasonable, I withdrew this amendment with a verbal understanding that my concerns would be addressed in the House- Senate conference. I pressed my case firmly in writing with the conferees, outlining my concerns and suggesting various ``fixes.''

Some improvements have been made in the conference report. For example, the conference report consolidates the positions within the office of the National Director of Intelligence responsible for privacy and civil liberties oversight into one. But the authorities of the Privacy and Civil Liberties Oversight Board, which was contained in the Senate bill but not in the House bill, remain problematic. Subpoena authority over private individuals, which would have been entirely inappropriate, particularly given the location of the Board in the Executive Office of the President, was removed, and the Board will now be accountable to the President. But the authority to compel executive branch compliance with Board requests remains. And this is the real problem.

Departments and agencies are required to comply with any Board request unless a waiver is exercised by the National Director of Intelligence or the Attorney General. This places an additional burden on two key officials, whose attention should be directed toward other issues, including preventing a future terrorist attack. It also will likely foster an environment in which our intelligence officers are increasingly cautious, or risk averse, about completing the very tasks that are required to fulfill their missions. Just because a Board request to a Department-head does not necessarily rise to the level of reasonably exercising a waiver does not mean that it does not act as a deterrent or a distraction to those serving honorably in the intelligence community.

Consider this example: The International Red Cross complains that terrorists captured in Pakistan are treated poorly and convinces the Civil Liberties Board to investigate. The Board demands that our CIA station chief in Pakistan testify about what he knows. The DNI demurs on grounds of national security, or doesn't. The hue and cry about ``secrecy'' and ``cover-up'' cause the DNI to allow the Board to interrogate the CIA official. Can anyone deny the national security implications, let alone the resulting risk aversion that would settle into the entire intelligence community? It would be disastrous.

I intend to monitor closely the action of this Board once it is put into place to ensure that its investigations and public reporting requirements do not adversely affect our intelligence community, and will urge further limitations on its authority. Fighting terrorists abroad means spying, gathering intelligence. Civil liberties for terrorists should not be high on the list of U.S. reforms for intelligence collection. Again, 9/11 was caused by intelligence failures, not insufficient attention to terrorists' civil rights. A sense of perspective would have eliminated the most egregious features of the conference report.

With regard to the immigration provisions included, or not included, in the final bill, I am pleased that a provision I authored requiring mandatory interviews for non-immigrant visa applicants was retained. I am also pleased that some other immigration reform provisions were included in the conference report, including an authorization for an increase in Border Patrol agents by 2,000 in each of fiscal years 2006- 2010; an increase of Immigration and Customs Enforcement agents by 800 in each of fiscal years 2006-2010; an increase in detention beds by 8,000 in each of fiscal years 2006-2010, with priority for the use of these beds to detain aliens charged with inadmissibility or deportability on security grounds.

I am also pleased that a requirement to develop and implement a plan to require a passport or other document, or combination of documents, sufficient to denote citizenship and identity for all travel into the U.S. by U.S. citizens and nationals from Western Hemisphere countries, for whom such requirements have previously been waived, is included in the conference report. And that a provision requiring a detailed plan from the Department of Homeland Security, within 180 days, about how to accelerate the full implementation of the biometric document requirement of the Border Security Act that Senators Feinstein, Kennedy, Brownback, and I authored, will be included. There are other good provisions.

I am very troubled, however, that many of the important immigration reform provisions included in the House-passed bill were either altered significantly or left out of the conference report. I understand that Members have been assured that such provisions will be considered next year. As the chairman of the Senate Judiciary Subcommittee on Terrorism and a senior member of the Immigration Subcommittee, I have witnessed many times the opportunities for real immigration reform slip through our fingers. This conference measure represents one example.

There is no real substantive reason that these important provisions, which were described as immigration reforms but can also be accurately be described as counterterrorism measures, should not have been included in the final bill. The primary goal of this legislation, is to better enable the U.S. Government to prevent future terrorist attacks like that which occurred on 9/11. Many of the House-passed immigration provisions ultimately excluded from the final conference report would have enhanced the Government's ability to prevent entry of, and find, terrorists who wish harm to our country.

The public and media debate about immigration reform and the intelligence conference report has focused on driver's license standards and whether States should be prevented from issuing such documents to illegal aliens. The answer is unequivocally yes, and I will discuss this matter again. There are additional important immigration/terrorism reforms that the conference negotiators refused to

accept, and by doing so, I believe the bill was seriously, dangerously weakened. I will mention only a handful of them.

Importantly, the House-passed bill included a section that would have required aliens in the United States to use only a Department of Justice- or Department of Homeland Security-issued document, or a valid passport, to establish identity to a U.S. Governmental official or worker. This would have effectively prohibited the use of the matricula consular identification card for identification purposes for Federal identification. The conference measure eliminated this section of the bill, and instead provides only for a process for determining minimum standards that passengers will have to present to board a commercial aircraft in the United States.

Additionally, the House would have expanded the use of expedited removal by requiring its use in the U.S. as well as along the U.S. border, currently expedited removal is used only at U.S. ports of entry. The conference measure strikes this provision.

The House-passed bill would also have overturned a Ninth Circuit precedent that has effectively barred immigration judges from denying asylum claims on the basis of credibility. The Government is barred from asking foreign governments what evidence they have about the terrorist activities of asylum applicants. So the only evidence the Government can use in opposing an asylum request is to argue that the applicant is lying. The Ninth Circuit precedent barring immigration judges from denying asylum claims on the basis of credibility would have been overturned if the conference report retained the House-passed provision; but it was eliminated from the conference measure.

Additionally, the Ninth Circuit has been granting asylum to applicants on the basis that their government believes they are terrorists, and, therefore, they deserve asylum because they are being persecuted on account of the political beliefs of the relevant terrorist organization. The House-passed bill overturned this precedent and would have required aliens to show they qualify for asylum based upon the currently protected grounds for receiving such, but conference negotiators refused to accept this provision.

Instead, what the final version of the bill included is a Government Accountability Office, GAO, study on the weaknesses in the U.S. asylum system that have been exploited by aliens connected to terrorism.

The House version of the bill included a provision to close an existing loophole in immigration law that allows foreign nationals whose visas or other travel documents have been revoked by the State Department on terrorism grounds, to remain in the United States until their visa, or DHS-approved time here, expires, despite the revocation. The current conference report retains that provision, which makes revocation of a visa on terrorism grounds a legal ground for the deportation of the visa holder. However, the conferees created another loophole through which a potential terrorist could remain in the United States despite a visa revocation, by adding language that would allow judicial appeal of any visa revocation decision. Allowing judicial appeal of such decisions will only create another avenue through which a potential terrorist can legally remain in the United States for an undetermined amount of time. Currently all decisions regarding visa issuance by Consular Officers are final, they are not subject to judicial review. The same should be true of visa revocation decisions. A number of Senators, including Senators Grassley, Sessions, Chambliss, Ensign, and I fully supported this provision and contemplated offering as a similar amendment during Senate consideration of the bill. I am disappointed to learn that language was added to allow individuals whose visas have been revoked on terrorism grounds to appeal the State Department's decision.

Finally, while increasing the number of Customs and Immigration enforcement officers is important and is accomplished in the conference report, another important House-passed provision, requiring that half of any new immigration investigators be focused on enforcing restrictions on illegal immigrants in the workforce, was not included in the final version of the bill.

As I mentioned in the beginning of my comments about the immigration- related sections, an important provision dealing with identity standards in the Federal context was struck from the conference measure. While that measure wasn't necessarily perfect, it certainly represented a good beginning for development of a necessary standard of identification in this country. The House-passed driver's license standards section also represented a very good attempt at eliminating the opportunity for illegal immigrants to obtain driver's licenses, which we all know allows illegal immigrants to live as though they were here legally.

While I would very much like to discuss the negative ramifications on the workplace, and States generally, of the illegal immigrant population having such easy access to driver's licenses and other documents that allow them to live as though they are here legally, I will instead focus on how important documentary validity is to preventing terrorists from entering and living in the United States. Both the House and Senate, after reviewing the 9/11 Commission's recommendation, voted to apply some form of standardization to the driver's license. The question really is, Is the Congress willing to get to the root of the problem and prevent illegal immigrants from obtaining such licenses? True, most of the 9/11 hijackers had ``valid,'' but improperly issued, visas. Hopefully, now, the State Department is following the law and making it harder for individuals who shouldn't possess U.S. visas from obtaining them. But that still leaves millions of individuals who enter the country illegally, some of whom could be terrorists, able to obtain the document that will allow them to blend easily into our neighborhoods, workplaces, churches, and mosques, let alone board airplanes or otherwise gain access to sensitive areas. The conference report only requires that States include the following: the person's full legal name; the person's date of birth; the person's gender; the person's driver's license or identification number; a digital photograph; the person's address of principal residence; and the person's signature. And a carve-out was included for States in order that any documentary requirements ``may not infringe on a State's power to set criteria concerning what categories of individuals are eligible to obtain a driver's license or personal identification from that State.'' The driver's license provision included in the final bill will not do much to better secure the license, and will continue to allow illegal immigrants to obtain such documentation.

As I have said, there are a number of immigration-related provisions in the conference report that will make a difference, including the section of the bill that requires in-person interviews of non-immigrant visa applicants, an authorization for an increase in consular officer positions, and others. But we also had an opportunity to include other security-related immigration reforms, and we failed. I will work in the 109th Congress to ensure their consideration, and the consideration of other important immigration reform measures. Such consideration is important to the future of our country, from a security perspective and from an economic perspective, and the course we take over the next year or two will, in part, contribute to our success at preventing future terrorist attacks and shape the future of our Nation. I will work to get it right and look forward to working with my colleagues on all of these important issues.

As I mentioned, one bright spot in the bill before us today is title VI, which provides new tools to law enforcement to investigate and prosecute terrorist crimes. Title VI includes about half of the provisions of the Tools to Fight Terrorism Act, S. 2679, an omnibus antiterrorism bill that I introduced earlier this year with several other members of the Judiciary Committee and the Senate leadership. Obviously, I am pleased that these important provisions are included in the final legislation.

Subtitles A and F through K of title VI of the conference report mirror parallel provisions in the Tools to Fight Terrorism Act. And TFTA itself consists of all or part of 11 other bills that currently are pending in the House and Senate. Collectively, these other bills have been the subject of 9 separate

hearings before House and Senate committees and have been the subject of 4 separate committee reports. In addition, the entire TFTA was reviewed in a September 13 hearing before the Senate Subcommittee on Terrorism, which heard testimony from Justice Department witnesses Barry Sabin, Chief of the counterterrorism Section of the Criminal Division, and Dan Bryant, Assistant Attorney General for the Office of Legal Policy, as well as George Washington University law professor Jonathan Turley.

These hearings and reports provide a substantial legislative backdrop to title VI of the present bill. The statement that follows is my attempt to provide some guide to navigating this legislative thicket. Of course, one might well ask whether it is an inherent contradiction to rely on legislative history supplied by a judicial conservative, since judicial conservatives tend not to believe in legislative history. The short answer would be that in moments of litigation crisis, every lawyer tends to believe in whatever talismans are available. One might as well help him find them. With that disclaimer, I offer the following effort to illuminate the origins and objectives of the TFTA provisions in title VI.

Subtitle A, section 6001, Lone-Wolf FISA Authority ``Moussaoui Fix,'' this section amends FISA to allow orders for surveillance of foreign visitors to the U.S. who appear to be involved in international terrorism but are not affiliated with a known terror group. The need for this provision is explained in Senate Committee Report No. 108-40, which accompanies a bill that Senator Schumer and I introduced at the beginning of this Congress. I quote the relevant passages from that report at length:

The September 11, 2001 terrorist attacks on the people of

the United States underscored the need for this legislation.

Several weeks before those attacks, federal law enforcement

agents identified one of the participants in that conspiracy

as a suspected international terrorist. These agents sought

to obtain a FISA warrant to search his belongings. One of the

principal factors that prevented the issuance of such a

warrant was FISA's requirement that the target be an agent of

a foreign power. Even if federal agents had been able to

demonstrate that this person was preparing to commit an act

of international terrorism, based on the suspicious conduct

that had first brought him to the attention of authorities,

the agents would not have been able to obtain a warrant to

search him absent a link to a foreign power. As a result,

these federal agents spent three critical weeks before

September 11 seeking to establish this terrorist's tenuous

connection to groups of Chechen rebels--groups for whom we

now know this terrorist was not working.

It is not certain that a search of this terrorist would

necessarily have led to the discovery of the September 11

conspiracy. We do know, however, that information in this

terrorist's effects would have linked him to two of the

actual September 11 hijackers, and to a high-level organizer

of the attacks who was captured in 2002 in Pakistan. And we

do know that suspending the requirement of a foreign-power

link for lone-wolf terrorists would have eliminated the major

obstacle to federal agents' investigation of this terrorist--

the need to fit this square peg into the round hole of the

current FISA statute.

FISA allows a specially designated court to issue an order

authorizing electronic surveillance or a physical search upon

probable cause that the target of the warrant is ``a foreign

power or an agent of a foreign power.'' 50 U.S.C. Sec.

1805(a)(3)(A), 1824(a)(3)(A). The words ``foreign power'' and

``agent of a foreign power'' are defined in 1801 of FISA.

``Foreign power'' includes ``a group engaged in international

terrorism or activities in preparation therefor,''

1801(a)(4), and ``agent of a foreign power'' includes any

person who ``knowingly engages in sabotage or international

terrorism, or activities that are in preparation therefor,

for or on behalf of a foreign power.'' 1801(b)(2)(C).

Requiring that targets of a FISA warrant be linked to a

foreign government or international terrorist organization

may have made sense when FISA was enacted in 1978; in that

year, the typical FISA target was a Soviet spy or a member of

one of the hierarchical, military-style terror groups of that

era. Today, however, the United States faces a much different

threat. The United States is confronted not only by specific

groups or governments, but by a movement of Islamist

extremists. This movement does not maintain a fixed structure

or membership list, and its adherents do not always advertise

their affiliation with this cause. Moreover, in response to

the United States' efforts to fight terrorism around the

world, this movement increasingly has begun operating in a

more decentralized manner.

The origins and evolution of the Islamist terrorist threat,

and the difficulties posed by FISA's current framework, were

described in detail by Spike Bowman, the Deputy General

Counsel of the FBI, at a Senate Select Committee on

Intelligence hearing on the predecessor to S. 113. Mr. Bowman

testified:

``When FISA was enacted, terrorism was very different from

what we see today. In the 1970s, terrorism more often

targeted individuals, often carefully selected. This was the

usual pattern of the Japanese Red Army, the Red Brigades and

similar organizations listed by name in the legislative

history of FISA. Today we see terrorism far more lethal and

far more indiscriminate than could have been imagined in

1978. It takes only the events of September 11, 2001, to

fully comprehend the difference of a couple of decades. But

there is another difference as well. Where we once saw

terrorism formed solely around organized groups, today we

often see individuals willing to commit indiscriminate acts

of terror. It may be that these individuals are affiliated

with groups we do not see, but it may be that they are simply

radicals who desire to bring about destruction.

``[W]e are increasingly seeing terrorist suspects who

appear to operate at a distance from these [terrorists]

organizations. In perhaps an oversimplification, but

illustrative nevertheless, what we see today are (1) agents

of foreign powers in the traditional sense who are associated

with some organization or discernible group (2) individuals

who appear to have connections with multiple terrorist

organizations but who do not appear to owe allegiance to any

one of them, but rather owe allegiance to the International

Jihad movement and (3) individuals who appear to be

personally oriented toward terrorism but with whom there is

no known connection to a foreign power.

``This phenomenon, which we have seen . . . growing for the

past two or three years, appears to stem from a social

movement that began at some imprecise time, but certainly

more than a decade ago. It is a global phenomenon which the

FBI refers to as the International Jihad Movement. By way of

background we believe we can see the contemporary development

of this movement, and its focus on terrorism, rooted in the

Soviet invasion of Afghanistan.

``During the decade-long Soviet/Afghan conflict, anywhere

from 10,000 to 25,000 Muslim fighters representing some

forty-three countries put aside substantial cultural

differences to fight alongside each other in Afghanistan. The

force drawing them together was the Islamic concept of 'umma'

or Muslim community. In this concept, nationalism is

secondary to the Muslim community as a whole. As a result,

Muslims from disparate cultures trained together, formed

relationships, sometimes assembled in groups that otherwise

would have been at odds with one another[,] and acquired

common ideologies.

``Following the withdrawal of the Soviet forces in

Afghanistan, many of these fighters returned to their

homelands, but they returned with new skills and dangerous

ideas. They now had newly acquired terrorist training as

guerrilla warfare [had been] the only way they could combat

the more advanced Soviet forces.

``Information from a variety of sources repeatedly carries

the theme from Islamic radicals that expresses the opinion

that we just don't get it. Terrorists world-wide speak of

jihad and wonder why the western world is focused on groups

rather than on concepts that make them a community.

``The lesson to be taken from [how Islamist terrorists

share information] is that al-Qaida is far less a large

organization than a facilitator, sometimes orchestrator of

Islamic militants around the globe. These militants are

linked by ideas and goals, not by organizational structure.

``The United States and its allies, to include law

enforcement and intelligence components worldwide[,] have had

an impact on the terrorists, but [the terrorists] are

adapting to changing circumstances. Speaking solely from an

operational perspective, investigation of these individuals

who have no clear connection to organized terrorism, or

tenuous ties to multiple organizations, is becoming

increasingly difficult.

``The current FISA statute has served the nation well, but

the International Jihad Movement demonstrates the need to

consider whether a different formulation is needed to address

the contemporary terrorist problem.''

The Committee notes that when FISA was enacted in 1978, the

Soviet invasion of Afghanistan had not yet occurred and both

Iran and Iraq were considered allies of the United States.

The world has changed. It is the responsibility of Congress

to adapt our laws to these changes, and to ensure that law

enforcement and intelligence agencies have at their disposal

all of the tools they need to combat the terrorist threat

currently facing the United States. The Committee concludes

that enactment of S. 113's modification of FISA to facilitate

surveillance of lone-wolf terrorists would further Congress's

fulfillment of this responsibility.

[In a separate statement of additional views on S. 113,

Senator Feingold expresses concerns about the

constitutionality of allowing surveillance of lone-wolf

terrorists pursuant to FISA. He suggests that by allowing

searches of persons involved in international terrorism

without regard to whether such persons are affiliated with

foreign powers, S. 113 ``writes out of the statute a key

requirement necessary to the lawfulness of such searches.''

In order to address Senator Feingold's concerns, the

Committee attaches as Appendix E to this report a letter

presenting the views of the U.S. Department of Justice on S.

2586, the predecessor bill to S. 113.

The Department of Justice's letter provides a detailed

analysis of the relevant Fourth Amendment jurisprudence,

concluding that the bill's authorization of lone-wolf

surveillance would ``satisfy constitutional requirements.''

The Department emphasizes that anyone monitored pursuant to

the lone-wolf authority would be someone who, at the very

least, is involved in terrorist acts that ``transcend

national boundaries in terms of the means by which they are

accomplished, the persons they appear intended to coerce or

intimidate, or the locale in which their perpetrators operate

or seek asylum.'' (Quoting 50 U.S.C. Sec. 1801(c)(3).)

Therefore, a FISA warrant obtained pursuant to this authority

necessarily would ``be limited to collecting foreign

intelligence for the international responsibilities of the

United States, and the duties of the Federal Government to

the States in matters involving foreign terrorism.'' (Quoting

United States v. Dugan, 743 F.2d 59, 73 (2d Cir. 1984).) The

Department concludes ``the same interests and considerations

that support the constitutionality of FISA as it now stands

would provide the constitutional justification for S. 2568.''

The Department additionally notes that when FISA was enacted

it was understood to allow surveillance of groups as small as

two or three persons. The Department concludes that ``[t]he

interests that the courts have found to justify the

procedures of FISA are not likely to differ appreciably as

between a case involving such a group . . . and a case

involving a single terrorist.'']

A provision substantially the same as section 6001 first was introduced as a bill, S. 2586, by Senators Schumer and me on June 5, 2002. The Senate Intelligence Committee held a hearing on S. 2586 on July 31, 2002. Witnesses included James Baker, Counsel for Intelligence Policy with the Office of Intelligence and Policy Review, Department of State; Marion ``Spike'' Bowman, Deputy General Counsel, National Security Law Unit, Office of the General Counsel, FBI; and Fred Manget, Deputy General Counsel, CIA.

The same provision was reintroduced in the 108th Congress by me and Senator Schumer as S. 113 on January 9, 2003. S. 113 was unanimously reported by the Judiciary Committee on March 11, 2003. The Committee issued Report No. 108-40 for S. 113 on April 29, 2003. S. 113 was approved by the Senate by 90-4 on May 8, 2003. The same provision also was included in H.R. 3179, which was introduced by House Judiciary Chairman Sensenbrenner and House Intelligence Chairman Goss on September 25, 2003. The House Subcommittee on Crime, Terrorism, and Homeland Security held a hearing on H.R. 3179 on May 18, 2004. Witnesses at the hearing included Dan Bryant, Assistant Attorney General, Office of Legal Policy, Department of Justice; Thomas Harrington, Deputy Assistant Director, FBI; and Bob Barr, former Congressman. The same provision also was introduced as H.R. 3552 by Representative King on November 20, 2003.

Subtitle F, section 6501, Sharing Grand-Jury Information With State and Local Governments, this section amends current law to authorize the sharing of grand-jury information with appropriate state and local authorities.

I do not think that one can overstate the importance of information sharing, of tearing down the walls that prevent different parts of the Government from exchanging intelligence and working together in the war on terror. A graphic illustration of the importance of streamlined information sharing is provided by another pre-September 11 investigation. Like the Moussaoui case, this investigation also came tantalizing close to substantially disrupting or even stopping the 9/11 plot, and also ultimately was blocked by a flaw in our antiterror laws. The investigation to which I refer involved Khalid Al Midhar, one of the suicide hijackers of American Airlines Flight 77, which was crashed into the Pentagon, killing 58 passengers and crew and 125 people on the ground.

An account of the investigation of Midhar is provided in the 9/11 Commission's staff Statement No. 10. That statement notes as follows:

During the summer of 2001 [an FBI official] . . . found [a]

cable reporting that Khalid Al Mihdhar had a visa to the

United States. A week later she found the cable reporting

that Mihdhar's visa application--what was later discovered to

be his first application--listed New York as his destination.

. . . The FBI official grasped the significance of this

information.

The FBI official and an FBI analyst working the case

promptly met with an INS representative at FBI Headquarters.

On August 22 INS told them that Mihdhar had entered the

United States on January 15, 2000, and again on July 4, 2001.

. . . The FBI agents decided that if Mihdhar was in the

United States, he should be found.

These alert agents immediately grasped the danger that Khalid Al Midhar posed to the United States, and immediately initiated an effort to track him down. Unfortunately, at the time, the law was not on their side. The Joint Inquiry Report of the House and Senate Intelligence Committees describes what happened next:

Even in late August 2001, when the CIA told the FBI, State,

INS, and Customs that Khalid al-Mihdhar, Nawaf al-Hazmi, and

two other ``Bin Laden-related individuals'' were in the

United States, FBI Headquarters refused to accede to the New

York field office recommendation that a criminal

investigation be opened, which might allow greater resources

to be dedicated to the search for the future hijackers. . . .

FBI attorneys took the position that criminal investigators

``CAN NOT'' (emphasis original) be involved and that criminal

information discovered in the intelligence case would be

``passed over the wall'' according to proper procedures. An

agent in the FBI's New York field office responded by e-mail,

saying: ``Whatever has happened to this, someday someone will

die and, wall or not, the public will not understand why we

were not more effective in throwing every resource we had at

certain problems.''

The 9/11 Commission staff report assesses the ultimate impact of these legal barriers:

Many witnesses have suggested that even if Mihdhar had been

found, there was nothing the agents could have done except

follow him onto the planes. We believe this is incorrect.

Both Hazmi and Mihdhar could have been held for immigration

violations or as material witnesses in the Cole bombing case.

Investigation or interrogation of these individuals, and

their travel and financial activities, also may have yielded

evidence of connections to other participants in the 9/11

plot. In any case, the opportunity did not arise.

Congress must do what it can now to make sure that something like this does not happen again--that arbitrary, seemingly minor bureaucratic barriers are not allowed to undermine our best leads toward uncovering an attack on the United States. Section 6501 is a substantial step in that direction.

The change made be section 6501 previously was enacted by the Homeland Security Act, but that change never went into effect because the Federal Rule of Criminal Procedure amended by the HSA was revised by the Supreme Court shortly after the enactment of the HSA, and the amendment made by HSA presupposed the earlier text of the Federal rule. The same provisions were introduced as part of S. 2599 by Senators Chambliss and me on June 24, 2004.

Subtitle G, sections 6602 and 6603, and section 5402, Receiving Military-Type Training from and Providing Material Support to Terrorists, section 6602 makes it a crime to receive military-type training from a foreign terrorist group, and section 5402 makes aliens who have received such training deportable from the United States. Section 6603 broadens the jurisdictional bases of the material-support statute. It also clarifies the definitions of the terms ``personnel,'' ``training,'' and ``expert advice or assistance'' in response to concerns expressed in recent court decisions. Furthermore, this section clarifies the knowledge required to violate the statute, and specifies that nothing contained in the statute shall be construed to abridge free-speech rights. All of these sections apply extraterritorially to U.S. nationals, permanent residents, stateless persons whose habitual residence is the United States, and persons who are brought into or found in the United States.

In the final version of this legislation, all immigration- and border-related provisions were placed in a new title V, and thus the part of the military-type-training provision making terror trainees deportable ended up in that title as well, as section 5402. The new 5402, rather than referencing the definition of military-type training in 6602, simply duplicates the key part of that definition, a precaution against the event that the now-distant 6602 be repealed or never enacted.

Nevertheless, despite their now far-flung nature, these sections still should be read together. Thus 2339D(c)'s definitions of ``serious bodily injury'' and ``critical infrastructure'' should guide the use of those terms in 5402, even though, unlike the definition of ``military type training,'' those definitions are not copied in the deportation section. The extraterritorial scope of 6602, as articulated in 2339D(b), also should

inform the application of 5402. The deportation provision is articulated in terms of conduct, which is the same thing everywhere-- rather than offenses--which are a particular creature of each jurisdiction. And obviously, Congress is just as anxious to remove from this country those aliens who trained at an al-Qaida camp in Afghanistan as those who trained in the United States.

In two key respects, however, the deportation provision operates differently than the criminal provision. First, the knowledge requirement imposed by the second sentence of 2339D(a) was not imposed in 5402. While scienter is a traditional part of a criminal offense, it was not thought a necessary consideration in deciding which alien visitors should be allowed to remain in this country. If someone trained at a terrorist camp, they should be removed forthwith, regardless of what they claim to have known about their host terror group. Second, 5402 will apply immediately at the time that deportation proceedings are initiated, regardless of the date of the triggering training. As the Supreme Court has noted, deportation ``looks prospectively to the respondent's right to remain in this country in the future.'' INS v. Lopez-Mendoza, 468 U.S. at 1038. Under 5402, the only thing that need have occurred ``at the time the training was received'' is that the training or sponsoring organization have been defined as a terrorist organization. Since there is no reasonable ``reliance'' on any U.S. law whatsoever in attending an al-Qaida or other terrorist training camp, 5402 applies regardless of when the training was received, so long as the group was defined at that time as a terrorist organization.

The animating example behind this provision is the alien visitor in the United States who is discovered to have attended an al-Qaida camp in Afghanistan in the summer of 2001. In the judgment of Congress, such a person is a danger to the United States. And under 5402, that person, once discovered, will be immediately deportable.

The Justice Department testified in favor of a provision similar to section 6602 at the Terrorism Subcommittee's hearing on the TFTA earlier this year. The joint statement of Messrs. Sabin and Bryant notes that:

It is critical that the United States stem the flow of

recruits to terrorist training camps. A danger is posed to

the vital foreign policy interests and national security of

the United States whenever a person knowingly receives

military-type training from a designated terrorist

organization or persons acting on its behalf. Such an

individual stands ready to further the malicious intent of

the terrorist organization through terrorist activity that

threatens the security of United States nationals or the

national security of the United States. Moreover, a trainee's

mere participation in a terrorist organization's training

camp benefits the organization as a whole. For example, a

trainee's participation in group drills at a training camp

helps to improve both the skills of his fellow trainees and

the efficacy of his instructors' training methods.

Additionally, by attending a terrorist training camp, an

individual lends critical moral support to other trainees and

the organization as a whole, support that is essential to the

health and vitality of the organization.

And George Washington University law professor Jonathan Turley had the following to say about TFTA's parallel provision to section 6602 in his testimony before the Terrorism Subcommittee:

This proposal would fill a gap in our laws revealed by

recent cases, like that of Jose Padilla, where citizens have

trained at terrorist camps. . . . The proposed crime has been

narrowly tailored to require a clear knowledge element as

well as a reasonable definition of military-type training.

The United States has an obvious interest in criminalizing

such conduct and to deter citizens who are contemplating

such training. In my view, it raises no legitimate issue

of free association or free speech given the criminal

nature of the organization. Most importantly, given the

use of these camps to recruit and indoctrinate such

citizens as Padilla and John Walker Lindh, this new

criminal offense is responsive to a clear and present

danger for the country.

With regard to section 6603, the Justice Department had the following to say about the parallel provision in TFTA at the Terrorism Subcommittee hearing earlier this year:

The [provision] . . . improves current law by clarifying

several aspects of the material support statutes. This is

another key tool in preventing terrorism. As the Department

of Justice has previously indicated, ``a key element of the

Department's strategy for winning the war against terrorism

has been to use the material support statutes to prosecute

aggressively those individuals who supply terrorists with the

support and resources they need to survive . . . . The

Department seeks to identify and apprehend terrorists before

they can carry out their plans, and the material support

statutes are a valuable tool for prosecutors seeking to bring

charges against and incapacitate terrorists before they are

able to cause death and destruction.''

Professor Turley, in his Terrorism Subcommittee testimony on TFTA, said of the parallel section to 6603 that ``[t]his proposal would actually improve the current Federal law by correcting gaps and ambiguities that have led to recent judicial reversals. In that sense, the proposal can be viewed as a slight benefit to civil liberties by removing a dangerous level of ambiguity in the law.''

The need for a stronger material-support statute and its application to terrorist training camps were the subject of a hearing before the Senate Judiciary Committee on May 5, 2004. Witnesses included Chris Wray, Assistant Attorney General, Criminal Division, Department of Justice; Dan Bryant, Assistant Attorney General, Office of Legal Policy, Department of Justice; Gary Bald, Assistant Director, Counterterrorism Division, FBI; David Cole, law professor, Georgetown University Law Center; and Paul Rosenzweig, Senior Legal Research Fellow, Heritage Foundation.

Subtitle G, Section 6604, Concealment of Terrorist Financing, this section amends current law to prohibit concealing having provided financing while knowing that it has been or will be provided to terrorists. This provision first appeared as part of S. 1837, which was introduced by Senator Grassley on November 6, 2003. The Senate Judiciary Committee held a hearing on the need to better combat terrorist financing on November 20, 2002. Witnesses included Robert J. Conrad, U.S. Attorney for the Western District of North Carolina; Jimmy Gurule, Under Secretary for Enforcement, Department of Treasury; David Aufhauser, General Counsel, Department of Treasury; Nathan Lewin, Lewin & Lewin, LLP; Allan Gerson, Professorial Lecturer In Honors, George Washington University; Jonathan Winer, Alston & Bird, LLP, member, Council on Foreign Relations; and Salam Al-Marayati, Executive Director, Muslim Public Affairs Council.

Subtitle H, section 6702, Punishment for Hoaxes about Terrorism or Deaths of U.S. Soldiers, this section imposes criminal penalties for conveying false or misleading information, perpetrating hoaxes, about terrorist crimes or the death or injury of a U.S. soldier under circumstances where such information may reasonably be believed.

The Justice Department has commented on the harm caused by false information and terrorist hoaxes. In its TFTA testimony on a parallel provision to 6702 earlier this year, the Department noted:

Since September 11, hoaxes have seriously disrupted

people's lives and needlessly diverted law-enforcement and

emergency-services resources. In the wake of the anthrax

attacks in the fall of 2001, for example, a number of

individuals mailed unidentified white powder, intending for

the recipient to believe it was anthrax. Many people were

inconvenienced, and emergency responders were forced to waste

a great deal of time and effort. Similarly, in a time when

those in uniform are making tremendous sacrifices for the

country, several people have received hoax phone calls

reporting the death of a loved one serving in Iraq or

Afghanistan.

And Professor Turley, also at the Terrorism Subcommittee hearing on TFTA, commented on the provision similar to 6702:

This new provision would create a serious deterrent to a

type of misconduct that routinely places the lives of

emergency personnel at risk and costs millions of dollars in

unrecouped costs for the federal and state governments. Since

a terrorist seeks first and foremost to terrorize, there is

precious [little] difference between a hoaxster and a

terrorist when the former seeks to shut down a business or a

community with a fake threat. . . . This provision responds

to the increase in this form of insidious misconduct and

correctly defines it as criminal conduct.

The key elements of section 6702 were introduced as H.R. 3209 in the 107th Congress by Representative Lamar Smith on November 11, 2001. H.R. 3209 was the subject of a hearing before the House Subcommittee on Crime, Terrorism, and Homeland Security on November 7, 2001. Witnesses included

James Jarboe, Section Chief, Counterterrorism Division, Domestic Terrorism, FBI; and James Reynolds, Chief, Terrorism and Violent Crime Section, Criminal Division, Department of Justice. H.R. 3209 was reported by the House Judiciary Committee on November 29, 2001. The Judiciary Committee issued Report No. 107-306 for H.R. 3209 on the same day. H.R. 3209 was unanimously approved by the House of Representatives on December 12, 2001.

A provision similar to 6702 also was introduced as H.R. 1678 in the 108th Congress by Representative Lamar Smith on April 8, 2003. H.R. 1678 was the subject of a hearing before the House Subcommittee on Crime, Terrorism, and Homeland Security on July 10, 2003. Witnesses included Susan Brooks, the U.S. Attorney for the Souther District of Indiana; James McMahon, Superintendent, New York State Police; and Danny Hogg, a target of a war-time hoax about a family member serving in Iraq. H.R. 1678 was ordered reported by the House Judiciary Committee by voice vote on May 12, 2004. The Judiciary Committee issued Report No. 108-505 for H.R. 1678 on May 20, 2004. The key provisions of section 6702 also were introduced as S. 2204 by Senator Hatch on March 11, 2004.

Subtitle H, section 6703, Increased Penalties for Obstruction of Justice in Terrorism Cases, this section increases from 5 years to 8 years the penalty for obstruction of justice in terror investigations. It also instructs the Sentencing Commission to increase the guidelines range for making false statements in relation to a terrorism investigation. A provision similar to section 6703, albeit increasing the penalty to 10 years instead of just 8, has in the past been included as part of the above-described anti-hoax bills.

Subtitle I, sections 6802 and 6803, Expanded WMD Prohibitions, section 6802 expands the jurisdictional bases and scope of existing prohibitions on use of weapons of mass destruction, and includes chemical weapons within the prohibition for the first time. Section 6803 amends the Atomic Energy Act to more broadly prohibit directly and willfully participating in the development or production of any special nuclear material or atomic weapon outside of the United States. This section also makes it a crime to participate in or provide material support to a nuclear weapons program, or other weapons of mass destruction program, of a designated terrorist organization or state sponsor of terrorism. And the offense created by this provision applies extraterritorially.

In his TFTA testimony about parallel provisions to sections 6802 and 6803 before the Terrorism Subcommittee earlier this year, George Washington University law professor Jonathan Turley stated:

[Section 6802, the WMD-statute provision] would close

current loopholes in the interest of national security and

does not materially affect civil liberty interests.

[Section 6803] would criminalize the participation in

programs involving special nuclear material, atomic weapons,

or weapons of mass destruction outside of the United States.

This new crime with extraterritorial jurisdiction is an

obvious response to recent threats identified by this country

and other allies like Pakistan. The obvious value of such a

law would be hard to overstate. . . . It is important for the

purposes of our extraterritorial enforcement efforts to have

a specific crime on the books to address this form of

misconduct.

These sections are substantially the same as H.R. 2939, which was introduced by Representative Forbes on July 25, 2003, and S. 2665, which was introduced by Senator Cornyn on July 15, 2004.

Subtitle J, sections 6901-11, Prevention of Terrorist Access to Special Weapons, this subtitle is designed to deter the unlawful possession and use of certain weapons, Man-Portable Air Defense Systems, MANPADS, atomic weapons, radiological dispersal devices, and the variola virus, smallpox, whose potential misuse are among the most serious threats to homeland security. MANPADS are portable, lightweight, surface-to-air missile systems designed to take down aircraft. Typically they are able to be carried and fired by a single individual. They are small and thus relatively easy to conceal and smuggle. A single attack could kill hundreds of persons in the air and many more on the ground. Atomic weapons or weapons designed to release radiation, ``dirty bombs,'' could be used by terrorists to inflict enormous loss of life and damage to property and the environment. Variola virus is the causative agent of smallpox, an extremely serious, contagious, and often fatal disease. Variola virus is classified by the CDC as one of the biological agents that poses the greatest potential threat for public-health impact and has a moderate to high potential for large-scale dissemination. There are no legitimate private uses for these weapons.

Current law allows a maximum penalty of only 10 years in prison for the unlawful possession of MANPADS or an atomic weapon. No statute criminalizes mere possession of dirty bombs. Knowing, unregistered possession of the variola virus is subject only to a maximum penalty of 5 years.

Sections 6903-06 make unlawful possession of MANPADS, atomic weapons, radiological devices, or variola virus a crime with a mandatory minimum sentence of 25 years to life. Use, attempts to use, or possession and threats to use these weapons are a crime with a mandatory minimum sentence of 30 years to life. Use of these weapons resulting in death is subject to a mandatory minimum sentence of life imprisonment. These penalties should especially help to deter middlemen and facilitators who are essential to the transfer of these weapons.

Section 6907 amends current law to add the criminal offenses created by this subtitle as federal wiretap predicates. Section 6908 amends current law to include these new offenses in the definition of ``Federal crime of terrorism.'' Section 6909 amends current law to include these new offenses in the definition of ``specified unlawful activity'' for purposes of the money laundering statute. And section 6910 amends the Arms Export Control Act by adding the offenses created by this subtitle to the provision specifying crimes for which a conviction or indictment is a ground for denying an arms-export application.

In his Terrorism Subcommittee testimony on TFTA earlier this year, Professor Turley said the following about a provision parallel to subtitle J:

Given the enormous threats to our country from such

weapons, these increased penalties are manifestly reasonable.

. . . While it is certainly possible that a defendant could

be in possession of a MANPADS as part of arms trafficking or

some other motive than terrorism, this is clearly one of the

most likely forms of terrorist conduct.

Subtitle J is the same as S. 2664, which was introduced by Senator Cornyn on July 15, 2004.

Subtitle K, section 6952, Presumption of No Bail for Terrorists, this section would add terrorist offenses to the list of offenses, such as drug crimes, that are subject to the statutory presumption of pretrial detention. Under current law, a criminal suspect will be denied bail in Federal court if the Government shows that there is a serious risk that the suspect will flee, obstruct justice, or injure or threaten a witness or juror. The judge must presume this showing is present if the suspect is charged with a crime of violence, a drug crime carrying a potential sentence of 10 years or more, any crime that carries a potential sentence of life or the death penalty, or the suspect previously has been convicted of two or more such offenses. This section would add terrorist offenses that are subject to a maximum penalty of at least 10 years to this list, judges would be required to presume that facts requiring a denial of bail are present. This is only a presumption, the terror suspect still could attempt to show that he is not a flight risk or potential threat to jurors or witnesses.

The Justice Department testified as to the importance of this provision at the Terrorism Subcommittee hearing on TFTA:

Current law provides that federal defendants who are

accused of serious crimes, including many drug offenses and

violent crimes, are presumptively denied pretrial release

under 18 U.S.C. Sec. 3142(e). But the law does not apply this

presumption to those charged with many terrorism offenses. To

presumptively detain suspected drug traffickers and violent

criminals before trial, but not suspected terrorists, defies

common sense.

This omission has presented authorities real obstacles to

prosecuting the war on terrorism, as Michael Battle, U.S.

Attorney for the Western District of New York, testified

before this subcommittee on June 22. In the recent

``Lackawanna Six'' terrorism case in

his district, prosecutors moved for pre-trial detention of

the defendants, most of whom were charged with (and

ultimately pled guilty to) providing material support to al

Qaeda. It was expected that the defendants would oppose the

motion. What followed was not expected, however. Because the

law does not allow presumptive pre-trial detention in

terrorism cases, prosecutors had to participate and prevail

in a nearly three-week hearing on the issue of detention, and

were forced to disclose a substantial amount of their

evidence against the defendants prematurely, at a time when

the investigation was still ongoing. Moreover, the presiding

magistrate judge did in fact authorize the release of one

defendant, who, it was later learned, had lied to the FBI

about the fact that he had met with Usama Bin Laden in

Afghanistan. The Lackawanna Six case illustrates the real-

life problems the absence of presumptive pre-trial

detention has posed to law enforcement. But this

shortcoming in the law has also enabled terrorists to flee

from justice altogether. For example, a Hezbollah

supporter was charged long ago with providing material

support to that terrorist organization. Following his

release on bail, he fled the country.

The suspect described above eventually was recaptured by the United States six years after his escape. During that time, he was not a participant in a terrorist attack against the United States, but he could have been.

Law Professor Jonathan Turley also commented on the legislative ancestor of section 6952 in his testimony at the Terrorism Subcommittee hearing on TFTA. He stated:

[Section 6952] would create a presumption against bail for

accused terrorists. Under this amendment, such a presumption

could be rebutted by the accused, but the court would begin

with a presumption that the accused represents a risk of

flight or danger to society. This has been opposed by various

groups, who point to the various terrorist cases where

charges were dismissed or rejected, including the recent

Detroit scandal where prosecutorial abuse was strongly

condemned by the Court. I do not share the opposition to this

provision because I believe that, while there have been

abuses in the investigation and prosecution of terrorism

cases, the proposed change sought by the Justice Department

is neither unconstitutional nor unreasonable.

This proposal would not impose a categorical denial of bail

but a presumption against bail in terrorism cases. Congress

has a clearly reasonable basis for distinguishing terrorism

from other crimes in such a presumption. In my view, this

would be clearly constitutional.

While I have been critical of the policies of Attorney

General John Ashcroft, I do not share the view of some of my

colleagues in the civil liberties community in opposition to

this change. There is currently a presumption against

pretrial release for a variety of crimes in 18 U.S.C. Sec.

3142(e), including major drug crimes. It seems quite bizarre

to have such a presumption in drug cases but not terrorism

cases.

Section 6952 is substantially the same as the main provision of H.R. 3040, which was introduced by Representative Goodlatte on September 9, 2003. I introduced the same bill as S. 1606 on September 10, 2003. S. 1606 was the subject a hearing before the Senate Subcommittee on Terrorism, Technology, and Homeland Security on June 22, 2004. Witnesses included Rachel Brand, Principal Deputy Assistant Attorney General, Office of Legal Policy, Department of Justice; Michael Battle, U.S. Attorney, Buffalo, NY; and James K. Robinson, former Assistant Attorney General, Criminal Division, Department of Justice.

I have spent considerable time reviewing this conference report and thoughtfully considering its provisions. I have serious reservations and agree with the many experts in this field who have urged a more thorough study of the intelligence community's problems and, likewise, a careful matching of those problems to solutions. Though I appreciate the hard work of the 9/11 Commission to help Americans understand how 9/11 happened, the Commission's recommendations--on which it spent far less time than on the narrative it took some 18 months to assemble--are not the final answer to the intelligence community's problems.

I intend to support this conference package, noting the improvements that have been made since Senate consideration, but I intend to closely monitor its implementation. I also strongly believe that Congress needs to focus its attention next year on resolving the more difficult problems in the intelligence community and, more broadly in the homeland security arena, like immigration, not addressed in this legislation. I will work with my colleagues in the House and Senate to ensure this happens.

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.

I thank the Senator from Florida for highlighting this important matter. As the Senator pointed out, since January 2003 DHS, through the Bureau of Customs and Border Protection, has required commercial aircraft and commercial vessels to electronically transmit advance passenger and crewmember information in order to assist the Department in the effective inspection of passengers and crew. Currently, passenger vessels provide advanced passenger manifests both upon the original departure of the voyage and 24 to 96 hours before arrival into the United States. This provision will help streamline the process, by requiring the manifest data be compared against one consolidated, comprehensive terrorist database, and by requiring that the comparison be done prior to the departure of the vessel. The cruise industry will do its part by ensuring that complete and accurate data is collected as early as possible, and the Department of Homeland Security will work to ensure the comparison is done effectively and efficiently, and make every effort to not delay the departure of these vessels. We expect the cruise industry and the Department to work closely together on these issues throughout the rulemaking process.

``The recurring use of any part of the territory of the country as a sanctuary for terrorists or terrorist organizations'' is not the only factor the administration should take into account when making determinations of which nations are terrorist sponsors for the purposes of the Export Administration Act. It is just one of the appropriate factors to be taken into account when the Secretary exercises his discretion to determine whether the government of a country has repeatedly provided support for acts of international terrorism. I understand from the State Department that other factors that the Secretary of State typically takes into account include: Whether the government of a country is furnishing arms, explosives or lethal substances to individuals, groups or organizations with the likelihood that they will be used in terrorist activities or whether a government is providing direct or indirect financial backing for terrorist activities.

I want to thank the distinguished manager for yielding to me, and the Senator from New Jersey for the excellent question. The general legal criteria for selecting such parties for inclusion in a negotiated rulemaking is described in the Negotiated Rulemaking Act. We have been told by many experts, including the 9/11 Commission, that we need to address every vulnerability to prevent any future attacks, and that we need to enlist the assistance of everyone who can contribute to protecting our homeland. So in this provision, we are really asking for experts and interested parties who can bring some productive ideas to the table to join us in developing these minimum Federal standards. Interested parties must also include groups or organizations presenting the interests of applicants for and holders of driver's licenses and personal identification cards, such as consumer organizations and organizations representing immigrants. It is important that the interests of these groups be considered.

I thank the Senator from New Hampshire for his inquiry. The Senator makes an important point in noting that the language of the conference report does not specify any particular group or organization to be included. However, I think a collaborative rulemaking process would be difficult to imagine without input from interested groups and organizations. And I believe the distinguished, chair of the committee would agree that this is the intention behind our language.

The Senator from Maine has raised a very important part of our language that is worth emphasizing. Moreover, in making our country safer by tightening standards for identification documents, we must never trample on any individual's civil and due process rights.

One of the standards we require for the rulemaking is for a State to confiscate a driver's license or identification card if any component or security feature of the license or identification card is compromised. It is important that this standard, as well as all of the standards, include procedures and requirements to protect the civil and due process rights of all individuals who apply for and hold driver's licenses and personal identification cards.

I thank the Senator from Illinois for pointing out this language in the conference report. I know that this is a complicated and emotional issue and one which the States are already dealing with on a State-by-State basis. I agree that the conference report language does not allow the minimum standards to directly or indirectly infringe on States' power to set eligibility criteria for who can obtain a driver's license or personal identification card.

I thank the Senator and agree with her statements. The National Intelligence Centers are a critical element in the transformation of the intelligence community into a 21st century enterprise. The 9/11 Commission stressed the role of the centers in the restructured intelligence community. The Commission's recommendation stems from the pre-9/11 and current situation in which no one below the DCI is responsible for how the CIA, the National Security Agency, and other intelligence agencies integrate their capabilities against specific intelligence targets.

The centers will provide unified direction across the intelligence community to fulfill missions. They are analogous to the Defense Department's combatant commanders, who unify the military services' capabilities to perform missions and fight wars. The purpose of the National Intelligence Centers can be summed up in one word: ``jointness.'' Just as, in the military, the Goldwater-Nichols Department of Defense Reorganization Act of 1986 sought to integrate the military services' capabilities by strengthening the combatant commanders, so this legislation fosters greater jointness among the intelligence agencies.

The centers are to be created within the Office of the DNI, which also will house the National Counterterrorism Center, the National Counter Proliferation Center, the National Intelligence Council, and other entities whose purpose is to integrate and unify the efforts of the various intelligence agencies to accomplish intelligence missions. Among their responsibilities, the centers will provide all-source analysis of intelligence, identify and propose to the DNI intelligence collection and analysis requirements, and have primary responsibility for net assessments and warnings. With their ability to harness the capabilities of entities across the Intelligence Community and create a unified effort, the centers will improve the intelligence community's ability to respond with speed and agility.

Each center will be led by a director who will be appointed by the DNI and serve as the DNI's principal adviser in that center's area of responsibility. The center's director reports to the DNI. Each center will have a professional staff, including personnel transferred, assigned, or detailed from elements of the intelligence community as directed by the DNI. The centers will be administratively distinct from the intelligence agencies, just as the combatant commands are administratively distinct from the Military Services. This prevents a center from being subsumed within and dominated by a particular agency.

I should add one point of clarification. The legislation calls on the DNI to explore creating an open source intelligence center to improve the collection and analysis of open source materials. This entity is different from the national intelligence centers, which are organized on geographic or transnational topics rather than functional topics like human or signals intelligence. This center would be like the agencies and entities in the intelligence community--like the CIA or the National Security Agency--that are organized to exploit particular collection disciplines.

I agree with the Senator's statements. I would like to elaborate on the CIA's role under this legislation. With respect to the CIA, the 9/11 Commission stressed that the DNI should no longer be responsible for managing the day-to-day activities of the CIA. The legislation has been very carefully crafted to ensure that the Director of the CIA is subordinate to and reports to the new DNI only, and not directly to the President, but that the DNI does not manage the CIA's daily activities. This situation is similar to how a CEO runs a company composed of various business divisions. The CEO is the undisputed head but focuses on high-level issues of strategy, policy, personnel, and budgets rather than getting involved in the daily workings of any single business division. Likewise, the DNI should not manage the CIA and other intelligence agencies. No CEO would run a company that way, nor should the DNI manage the Intelligence Community that way.

To emphasize that the DNI is no longer the head of the CIA, the legislation stipulates that the Office of the DNI--which houses the centers and other entities designed to unify and integrate agencies' capabilities--cannot be co-located with any other element of the intelligence community after October 1, 2008. This provision ensures that the DNI is not put in the inherently conflicted position of being both the CEO of the intelligence community and closely aligned with one of the subsidiary elements simultaneously.

The Senator from Maine previously stated that the DNI, not the CIA Director, is the President's principal intelligence advisor and is responsible for briefing the President or preparing the President's daily brief. The CIA Director is subordinate to and reports to the

DNI only, and not directly to the President, both regarding intelligence activities and covert action. The CIA Director should concentrate on ensuring that the Central Intelligence Agency transforms its human intelligence and special activities capabilities to meet the difficult challenges of the 21st century. The CIA Director should also ensure that the Central Intelligence Agency trains analysts of the highest caliber for deployment to the centers and that whatever analysis is conducted by the CIA in-house--which would primarily be on topics for which there is no center--is done with the greatest independence, clearest objectivity, and best tradecraft.

I would like to discuss for a moment the CIA Director's salary. Under current law, the DCI is paid at Executive Schedule Level II pursuant to section 5313 of title 5, United States Code. The legislation places the DNI at Executive Schedule Level I but does not delete the reference to the DCI at Executive Level II. Section 1081(b) of the legislation makes clear that any reference to the DCI in the DCI's capacity as the head of the CIA in any law, regulation, document, paper, or other record of the United States shall be deemed a reference to the CIA Director. After passage of this legislation, the provision in current law that states that the DCI is paid at Executive Schedule Level II will therefore refer to the CIA Director.

I thank and agree with the Senator. This reform legislation will benefit our troops in the field, as well as better protect our citizens at home.

The 9/11 Commission found that the U.S. intelligence agencies are still organized to counter yesterday's challenges, not today's threats. During the Cold War, the enemy was well-known, and our intelligence was appropriately focused on determining its capabilities. We could tolerate then a stove-piped intelligence system where the FBI's intelligence efforts were separate and disconnected from overseas and military intelligence because our enemies were not attacking us from within our borders. We could tolerate then a separate overseas intelligence system run by the CIA because there was no clear reason to integrate foreign military and domestic intelligence. We could tolerate then a separate military intelligence system because we faced a military force comparable to our own, using conventional tactics against us, different from the threats we faced at home.

In the war on terror, all that has changed. The threat has become asymmetrical, meaning a weaker enemy attacks a stronger force at its points of vulnerability. That's how al-Qaeda operates, working in the shadows, attacking us on all fronts: domestic, overseas, civilian and military.

The cold fact is that the killing zone has expanded. This requires a much more integrated and more agile intelligence apparatus. It requires someone in charge with the authority to force disparate agencies to share information, to determine overall priorities, and to make sure we maximize the return on our enormous investment in intelligence so that we will be successful at thwarting an enemy determined to kill civilians as well as military combatants.

A modernized intelligence community will help us better protect both our citizens and our soldiers. Reforms that help achieve greater ``unity of effort,'' as the 9/11 Commission put it, will clearly benefit our troops in the field because information critical to their safety and success could just as easily come from the CIA or the FBI as from the Pentagon's own intelligence systems. Similarly, the vital clues to stop the next attack on our own soil could come from the National Security Agency or the other national intelligence agencies within the Department of Defense. Fully connecting all these pieces is now critical to our total security effort.

But as the 9/11 Commission showed in its powerful report, we will not succeed if there is no one in charge who is able to forge unity among all of our intelligence agencies. A fundamental lesson of bureaucracy is that there will be no coordination at the working levels if there is no unified authority at the top. And there will be no real unified authority in the intelligence community unless a Director of National Intelligence has significant authority over budgets and people. Our troops battling in Iraqi streets must have, in real time, not simply traditional military intelligence on the force levels they face, but CIA-developed intelligence on the nature and identity of the al Qaeda and insurgent combatants firing at them.

I thank the Senator from Maine. The 9/11 Commission's recommendation for a National Counterterrorism Center, NCTC, arises from two main findings. First in keeping with the Commission's general finding regarding the intelligence community, the intelligence agencies are not fully integrated in their efforts against terrorism. No one below the DCI has responsibility, accountability, and authority for the counterterrorism mission. Second, counterterrorism requires an integrated Executive branch-wide effort in which departments and agencies beyond intelligence must work together on a tactical level, with agility, and a rapid pace--like a network--but today ``stovepipes'' still dominate the Executive branch. Although departments and agencies are cooperating at unprecedented levels, the Commission concluded that such cooperation is more confederative than truly joint and integrated. To remedy these two problems, the Commission proposed that the NCTC be responsible for both joint counterterrorism intelligence and joint counterterrorism operational planning.

The legislation creates the NCTC along the lines of the Commission's model. Per the Commission's recommendation, the NCTC director is a Deputy Secretary-equivalent and with a dual line of reporting: (1) to the DNI regarding the NCTC's budget and programs and concerning intelligence matters, and (2) to the President regarding Executive branch-wide planning. This arrangement reflects the nature of the NCTC's mission, which is both to integrate intelligence--for which the DNI is the ultimate authority--and to conduct Executive branch-wide planning--which is beyond the DNI's jurisdiction.

As per the Commission's proposal, the NCTC will have two directorates to reflect its dual mission. The NCTC's Directorate of Intelligence will in essence be the national intelligence center for counterterrorism, but the NCTC will be more than just a strengthened TTIC. The NCTC will transcend the TTIC because the NCTC will clearly be preeminent in the intelligence community for counterterrorist analysis, will propose collection requirements to the DNI and otherwise integrate the intelligence community's capabilities, and will attract the best professionals from across the intelligence community. The tasks of this directorate are similar to those of any national intelligence center: integrating the activities of intelligence agencies such as the CIA and the National Security Agency; performing all-source analysis on transnational terrorism; being the repository for intelligence on transnational terrorism; conducting net assessment matching terrorist capabilities and intentions with U.S. vulnerabilities and countermeasures; and warning about potential threats.

Some observers question whether the NCTC will absorb all the counterterrorism analysts from across the intelligence community. However, those who question whether the NCTC would drain our precious supply of analysts actually prove the case for the NCTC--because there are so few analysts, we need to centralize this precious resource rather than dissipate them across the intelligence community. And the same reasoning applies to the National Counterproliferation Center and the National Intelligence Centers as well.

The NCTC's second directorate is for Strategic Operational Planning. This directorate would conduct strategic operational planning for the entire Executive branch--ranging from the combat commands, to the State Department, to the FBI's Counterterrorism Division to the Department of Health and Human Services to the CIA.

Witnesses at the Committee on Governmental Affairs hearing on August 26, 2004, argued that interagency operational planning is already taking place organically and thus there is no need for the NCTC. Yet the witnesses could only identify planning processes within their organizations in which representatives from other agencies were involved, not a single truly joint planning process across the Executive branch. The military had a process--but so did then-DCI George Tenet, who

had a daily counterterrorism meeting. And the multitude of joint planning processes drain personnel, time, and resources. Moreover, the lack of a central coordinating mechanism provides no safety net for an issue falling through the cracks when each agency--viewing it through a stovepipe--misses the issue's overall significance. There should be only one interagency strategic operational planning process, run by the NCTC, for counterterrorism.

The Commission has analogized this directorate to the J-3 Directorate of Operations of the Joint Staff, which works for the Chairman of the Joint Chiefs of Staff. J-3 does planning for operations conducted by the combatant commands. However, because the Chairman is not in the Defense chain of command, J-3 has no operational authority to enforce its plans on the combatant commands. The Chairman's stature gives J-3's plans a certain amount of persuasive authority, but J-3 has no direct authority over the combatant commands. As the Commission has stated explicitly, and as reflected in this legislation, the NCTC's Directorate of Strategic Operational Planning has no operational authority. Accordingly, the NCTC would not interfere with the military chain of command.

I would like to discuss in-depth the definition of strategic operational planning. Some observers have advocated confining the NCTC's operational planning function to high-level strategic issues, such as fashioning an Executive branch-wide strategy for winning Muslim ``hearts and minds''--leaving more tactical planning to the agencies individually. An Executive branch-wide ``hearts and minds'' strategy would fall within the NCTC's purview, but the NCTC must reach below that strategic level in order to have the impact envisioned by the Commission and this legislation.

The legislation defines strategic operational planning to include ``the mission, objectives to be achieved, tasks to be performed, interagency coordination of operational activities, and the assignment of roles and responsibilities.'' Examples of missions include destroying a particular terrorist group or preventing a terrorist group from forming in a particular area in the first place. Objectives to be achieved include dismantling a terrorist group's infrastructure and logistics, collapsing its financial network, or swaying its sympathizers to withdraw support. Tasks include recruiting a particular terrorist, mapping a terrorist group's network of sympathizers, or destroying a group's training camp. Examples of interagency coordination of operational activities include the hand-off from the CIA to the Department of Homeland Security and the FBI of tracking a terrorist as that terrorist enters the United States, or the coordination between CIA and special operations forces when operating against a terrorist sanctuary abroad.

With respect to the assignment of roles and responsibilities, the NCTC will not dictate to each department or agency which personnel or capabilities to utilize, unless the selection of the personnel or capabilities directly impact the mission such as a risk calculation or likely collateral damage.

Perhaps the best example of an issue for strategic operational planning is the hunt for Osama bin Laden. There is no policy dispute about the objective; all departments and agencies agree. But the mission inherently cuts across the Executive branch: Intelligence agencies must find bin Laden's whereabouts, diplomats must pressure countries to cooperate, public diplomacy must persuade his sympathizers to turn him in, and special operations forces must raid suspected sanctuaries. Some of the action is longer-term, such as using diplomatic and economic pressure to win countries' cooperation. Some of the action is very short-term. For example, the NCTC would recommend to the CIA and the Defense Department's Special Operations Command, SOCOM, whether to infiltrate or raid a sanctuary; indeed, one can imagine a situation in which the CIA recommends infiltrating while SOCOM recommends raiding, and now the only independent interagency body that can help resolve the issue is the National Security Council staff. If SOCOM objected, then the legislation's provision for the resolution of disputes would apply. If the CIA and SOCOM accepted the NCTC's plan, the NCTC would not dictate how the department or agency performed the mission, i.e., how the CIA infiltrated the group or SOCOM executed the raid.

An analogy for strategic operational planning is like lanes in a highway, each lane symbolizing an agency's expertise (e.g., special operations, espionage, and law enforcement). The NCTC will not tell each agency how to drive in its lane. But effective counterterrorism requires choosing which lane--meaning which type of activity, and thus which agency, to utilize in a particular situation. The NCTC would select the lane but would have no authority to order an agency to drive.

Returning to the discussion of the DNI's authorities, I note that the new DNI will take on a number of additional duties and responsibilities beyond what the DCI has today. I would ask my friend from Maine, how will the new DNI manage the new community functions that he or she will need to direct as head of the intelligence community?

Mr. President, I wish to call attention to an important

part of this legislation--the provision in section 1016 on information sharing.

The effective use of information, from all available sources, is essential to the fight against terrorism. The 9/11 Commission, in fact, concluded that the biggest impediment to all-source analysis, and to a great likelihood of ``connecting the dots,'' is the resistance to information sharing. As the commission documented, in the period preceding September 11, 2001, there were instances o potentially helpful information that was available but that no person knew to ask for; information that was distributed only in compartmented channels; and information that was requested but could not be shared.

As a result of its findings, the commission urged that a new approach to information sharing be developed that would help move from a ``need- to-know'' culture of information protection to a ``need-to-share'' culture of integration. Noting that no single agency could develop a meaningful information sharing system on its own, the commission recommended a new, government-wide approach, based on the conceptual model of the Systemwide Homeland Analysis and Resource Exchange SHARE Network proposed by a task force of leading professionals assembled by the Markle Foundation.

This legislation puts the commission's information sharing recommendations in place, requiring that the President establish a new, government-wide Information Sharing Environment ISE to share information among federal, State, local and tribal entities, and, where appropriate, with the private sector which owns or controls much of the nation's critical infrastructure)--in a manner consistent with national security and with the protection of privacy and civil liberties.

Another important aspect of this provision is the mechanisms it puts in place to ensure that this new approach to information sharing actually gets implemented. We have known for some time now about the critical importance of information sharing in the fight against terrorism. But translating generalized calls for improved information sharing into a working, fundamentally changed system requires hard and sustained work. To help ensure that this ambitious new effort will succeed, and that the ISE is actually implemented as envisioned, the legislation provides for a staged development process, with periodic reporting and the promise of significant and sustained Congressional oversight.

The first benchmark in the ISE development process is 180 days after enactment: by this date, a review must be conducted of current agency capabilities; in addition, a description of the technological, legal and policy issues presented by the creation of the ISE, and how they will be addressed, must be submitted to the President and Congress. Within 270 days of enactment, the President is required to issue guidelines for acquiring, accessing, sharing, and using information, and, in consultation with the Privacy and Civil Liberties Oversight Board established in section 1061 of the legislation, guidelines to protect privacy and civil liberties in the development and use of the ISE. These two sets of guidelines are critical in defining the framework of the ISE, and their issuance will provide an important opportunity for Congress to evaluate the proposed direction of the ISE. Within a year, a detailed implementation plan for the ISE, including budget estimates and proposed performance measures, must be submitted to Congress, which will provide for a further opportunity for Congressional evaluation. Finally, in 2 years, and annually thereafter, the President must submit a report to Congress on the state of the ISE and of information sharing across the Federal Government.

Mr. President, among its other significant provisions, the bill before the Senate, S. 2845, establishes a new Privacy and Civil Liberties Oversight Board. Waging the war on terror has required that the federal government take steps that consolidate governmental authority and increase the government's presence in our lives. As the 9/11 Commission observed, this shift of power and authority to the government, while necessary, calls for ``an enhanced system of checks and balances to protect the precious liberties that are vital to our way of life.'' Following the commission's recommendation on this point, this bill creates, for the first time, a Board that can look across the federal government and ensure that liberty concerns are appropriately considered in the policies and practices of the executive branch.

I agree with the Senator from Maine that the board will have the tools necessary to carry out its purpose. In its advice role, the board has a broad mandate to review and provide advice to the President and to federal agencies on proposed policies, whether or not codified formally in regulations, and on the implementation of new and existing laws, regulations and policies, in order to ensure that privacy and civil liberties are appropriately considered. Following a related 9/11 Commission recommendation, the board is further specifically directed, when providing advice to executive branch officials on proposals to retain or enhance particular governmental powers, to consider whether the need for those powers have been balanced against the need to protect civil liberties and privacy and whether there are adequate guidelines and supervision to ensure that the use of the power is properly confined and that privacy and civil liberties are protected.

Although the board has no authority to veto or delay executive branch actions, executive branch officials are expected to routinely consult with the board, and the board to routinely review and provide input, on the development and implementation of policies intended to protect the Nation a against terrorism; indeed, a suggestion in conference negotiations that would have limited the board to providing advice only when requested by the head of an agency was specifically rejected. It is our intention that the board become an institutionalized voice that ensures that privacy and civil liberties concerns are always considered and, where appropriate incorporated, in policy making.

With respect to its oversight role, the board has broad authority to review and investigate executive branch actions, whether limited to a single agency or involving interagency policies, to determine whether the government is appropriately protecting privacy and civil liberties. To carry out this function effectively, the board has been given investigative powers similar to those of a government-wide inspector general. Specifically, the and is to have access to all relevant documents and materials in the executive branch, including classified information, and to all relevant federal officials to interview them and take statements. Departments and agencies, moreover, are required to cooperate with the board: if the board believes information or assistance has been unreasonably refused, it is to notify the relevant agency or department head, who, unless the information cannot lawfully be provided to the board, is to ensure compliance with the request.

The bill provides an exception to the requirement that an agency comply with a board request for information only in cases where the DNI in consultation with the Attorney General, determines that withholding information from the board is necessary to protect the national security interests of the United States or where the Attorney General determines that withholding the information is necessary to protect ongoing sensitive law enforcement or counterterrorism operations. In light of the fact that board members must in any event have appropriate clearances to see classified information, as well as the expected nature of the board's work, we anticipate that these exceptions will rarely need to be invoked.

In addition to getting information from the executive branch, the board may also request information and assistance from State, local and tribal officials, and it may request documents or testimony from others outside the executive branch, including private parties who may have relevant information, such as former federal employees and government contractors. Although the board does not itself have the authority to subpoena documents from private parties, if the card is unable to obtain relevant information from a nongovernmental party, it may refer the matter to the Attorney General, who may take such action as appropriate to ensure compliance, including the use of compulsory process.

I would also like to note that although the board's jurisdiction is not intended to extend beyond matters related to efforts to protect the Nation against terrorism--to, for example, claims that the IRS is not adequately protecting the confidentiality of tax returns--it is our intent its jurisdiction be interpreted inclusively, to reach, for example, laws that were originally adopted to protect against terrorism, but may now have been turned towards other purposes.

I would also like to point out that the bill encourages federal departments and agencies involved in law enforcement and anti-terror functions to designate an agency official to serve as a privacy and civil liberties officer. Such officers, modeled on similar officers at the Department of Homeland Security and newly created in the Office of the DNI, can play an important role in providing day-to- day advice and insights on civil liberties and privacy matters and conducting internal reviews. Because such officers would be highly knowledgeable about their own agencies, they could augment the role of the board and help address issues early on. The role of such officers would be distinct from those of the new chief privacy officers created in the Omnibus Appropriations bill. Those officers would be largely responsible for focusing on informational privacy issues and not responsible for addressing broader civil liberties concerns.

Mr. President, in New England, we have an old expression: The difficult we do immediately; the impossible takes us a little longer.

The Intelligence Reform and Terrorism Prevention Act of 2004 before us today at times seemed to be an impossible goal. So it took us a little bit longer. It has been a long and arduous journey to reach this point today, but the extraordinary perseverance of the 9/11 Commission, the families of the victims of the attacks on our country, the conferees, our talented staff, our leaders, and, most of all, the President of the United States brought us to this point today.

We would not be at this historic moment without the informed, strong, and bipartisan leadership of my good friend, the Senator from Connecticut, Mr. Lieberman. I am deeply grateful to him for his leadership and for working in partnership with me.

When Senator Lieberman and I were first assigned this task by our Senate leaders back in late July, we pledged to work together and to recognize that when it comes to matters of national security, there is no place for partisanship. We worked from the very beginning to forge a bipartisan bill, and I am very pleased that the conference agreement we bring before the Senate today is a bipartisan agreement. I am confident that later today it will receive a strong bipartisan vote. But it was Senator Lieberman's determination, his leadership, and his commitment to this cause that made it possible. It has been a great pleasure to work with him, and I look forward to many future collaborations.

I am also very proud of all of our colleagues on the Homeland Security and Governmental Affairs Committee. They worked so hard. From the very first hearing that we held in late July to the completion of the conference agreement over the weekend, they were there every step of the way. No leaders of a conference could ever have had more devoted and dedicated conferees than Senator Lieberman and I had.

We were also fortunate to be blessed with an outstanding staff. Both Senator Lieberman's staff, and my staff, headed by Michael Bopp, have worked countless hours over the last 4\1/2\ months. They sacrificed family vacations, and they have sacrificed a great deal of sleep. They have been here night and day working because they so believed in this legislation. We could not have done it without them.

On the House side, I want to thank Speaker Hastert. His chief of staff devoted hundreds of hours to assisting in these negotiations. Congressman Pete Hoekstra and Representative Jane Harman led the conferees on the House side. They did outstanding work. They were absolutely committed to the principle of crafting legislation that would make America safer and more secure.

Throughout this process, President Bush has provided outstanding leadership. I would say that without the help of the President of the United States and his Vice President, we would not be here today. Their intervention at critical points throughout the debate was absolutely essential in helping us to forge the compromises that were necessary to move this bill along.

We all owe a great debt to the members and the staff of the 9/11 Commission. I have worked very closely with the chairman and vice chairman, Gov. Tom Kean and former Representative Lee Hamilton. The work they did, their leadership, their investigations, their interviews of 1,200 people in 10 countries provided a solid foundation for the recommendations they made and for the reforms included in this bill.

I am very pleased that we have their endorsement. They said:

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

believe it will make our country safer and more secure. We

also believe that the essential elements of the Commission's

recommendations remain intact. We are of the firm view what

this conference report deserves the support of the House and

the Senate.

But, Mr. President, perhaps the greatest debt of all is owed to the families of the 9/11 victims. In their profound loss, they found courage and determination. Their knowledge has contributed greatly to our debate, and their passion constantly reminded us of why we are here and what is at stake. They never let us give up. They refused to let us fail.

I am grateful to Senator Frist and Senator Daschle for assigning our committee this important task. They showed great confidence in us, and I am pleased we did not let them down.

This legislation addresses the alarming flaws in our national intelligence structure that were so horribly and painfully exposed on that black September morning more than 3 years ago. It does what nearly a half century of studies and legislation calling for intelligence reform failed to do. It is legislation whose time has finally come.

The legislation implements the major recommendations of the 9/11 Commission. We are rebuilding a structure that was designed for a different enemy in a different time, a structure that was designed for the Cold War and has not proved agile enough to deal with the threats of the 21st century.

We have transformed that structure into one with the agility needed to respond to international terrorism, rogue states, the proliferation of weapons of mass destruction, and the other challenges and threats of the 21st century.

The legislation reforms the intelligence community and it gives us the tools to respond to threats of which we may not even be aware at this point.

It is fitting that this legislation comes to a final vote during the week when we pause to remember the events of December 7, 1941. Just as the National Security Act of 1947 was passed to prevent another Pearl Harbor, the Intelligence Reform Act will help us prevent another 9/11.

I am not saying that this legislation will prevent future terrorist attacks, but it will increase the capabilities of the intelligence community and help us improve the opportunity to better detect, prevent, and, if necessary, respond to attacks on our country.

The four primary components of this legislation are the creation of a director of national intelligence, the establishment of a national counterterrorism center, the creation of a civil liberties board, and strong information-sharing provisions. There are also many other provisions in this bill that improve border security, that improve transportation security, that set a new direction in our foreign policy.

This is a comprehensive approach that embodies many--indeed, most--of the recommendations of the 9/11 Commission.

The new director of national intelligence will be a strong position with clear and effective authority to build

and execute the intelligence budget. The DNI will be a dramatic improvement over the structure we have today. For the first time, we will have, in the words of Secretary of State Colin Powell, an empowered quarterback for our intelligence team.

To illustrate why this is important, why these authorities are crucial, let us consider a passage from the 9/11 Commission Report. In late 1998, it had become apparent to CIA Director George Tenet that al- Qaida was a growing and deadly threat to the people of this country, so on December 4 of that year, he issued a memorandum that said the following:

We are at war. I want no resources or people spared in this

effort, either inside CIA or the Community.

Now, that is a pretty clear, concise, direct order from the head of the intelligence community.

According to the Commission, the memorandum had virtually no impact. One reason it had so little overall effect on mobilizing the resources of the intelligence community is that the Director of the CIA, beyond the direct control of the CIA, has very little authority over the funding, the people, and the other resources in the intelligence community. This legislation will ensure that in the future, when such a clear, concise order is issued, it will mobilize and galvanize the resources we can bring to bear.

The second important key component in this bill is the creation of the National Counterterrorism Center. This will build on the good work already being done by the Terrorist Threat Integration Center created by the President through an Executive order. The NCTC will help demolish the information stovepipes that the 9/11 Commission found and it will replace them, it will turn them into conduits for information sharing across the intelligence community. The NCTC will also conduct strategic operational planning to coordinate the agencies that are planning our response to al-Qaida and the other threats to our national security.

Throughout the debate on this bill, in addition to improving the ability of the intelligence agencies to cooperate and coordinate their efforts, we have also been mindful of our troops fighting on the front lines in the war against terrorism in Afghanistan and Iraq. Both Senator Lieberman and I are privileged to serve on the Senate Armed Services Committee. I contend that our current system has not always served our troops well. It did not predict the insurgency that has cost us so many lives in Iraq. We owe it to our troops on the battlefields, as well as to our civilians at home, to improve the quality of intelligence they receive, and I believe, as does Secretary Powell, this bill will do just that.

I emphasize that nothing in this bill in any way hinders or impairs military operations or readiness. To the contrary, I believe this legislation will help improve the reliability and the quality of intelligence provided to our troops.

Another important provision of this bill would implement the recommendations of the 9/11 Commission by creating a civil liberties board. As we increase the power of Government to deal with the threat of terrorism, we must be mindful to preserve those freedoms that define us as Americans. We would be handing the terrorists a victory if we were to compromise the civil liberties Americans cherish. This board will help make sure we strike the right balance.

Finally, other key provisions of this bill, for which Senator Durbin deserves great credit, are provisions that will improve the sharing of information across our intelligence agencies and throughout the Federal Government. We know from the extensive review of the 9/11 Commission that various agencies throughout our Government had pieces of the puzzle that had it been assembled might have allowed them to prevent the attacks on our country on 9/11. We need to make sure we have a culture in our Government of assembling the pieces of that puzzle, of sharing information. I believe the Counterterrorism Center, the information-sharing provisions, and having a DNI will all improve and remedy that problem.

The 9/11 Commission has told us repeatedly of the valiant and talented men and women we have in our intelligence agencies, and I salute their good work. I believe today that we will be giving them the tools they need to be more effective. This legislation provides those good people with a good structure.

Time, commitment, and perseverance have brought us this far. I urge my colleagues to join us in completing the journey by giving this landmark legislation an overwhelming vote later this afternoon. This legislation will implement the most sweeping significant reforms of our intelligence community in more than 50 years. The reforms are long overdue, and they will help to make our Nation more secure.

I reserve the remainder of my time.

Mr. President, before the Senator from Pennsylvania is recognized, I have a unanimous consent request.

Mr. President, I ask unanimous consent Senator McCain be allocated 5 minutes of my time at some point during the debate today.

Mr. President, I will be putting into the record a list of the Senate conferees because each of them contributed in extraordinary ways to this bill. I will be making comments about some of them and their particular contributions later in the debate today.

Mr. President, I thank the Senator from Illinois for his comments. He has been an extraordinarily active member of the Governmental Affairs Committee. He has contributed to so many different investigations. Whether it was our review of mental health services for children or the food safety investigation, he has always been front and center in the committee's deliberations, as he has been with this intelligence reform bill. We will miss very much having him as a member of the committee, but I am grateful for his past service, and we hope he will return to the committee some day.

I know that two of the Homeland Security and Governmental Affairs Committee members are waiting to speak, so I will not prolong. I will talk more about my conferees, my wonderful, able group of conferees, later.

I ask unanimous consent that Senator Carper be recognized next. He has already reserved time under the time agreement; to be followed by Senator Coleman, who has already reserved time under the time agreement; to be followed by the chairman of the Intelligence Committee, Senator Roberts, who similarly has reserved time. Two out of the three of these individuals were conferees on the bill. Two of the three also are members of the Governmental Affairs Committee. Each of them has played a significant role in bringing us to where we are today, and I am grateful for their support and involvement.

That is fine.

I am happy to yield to the distinguished chairman of the Intelligence Committee 5 additional minutes from my time. It is my understanding that the ranking member of the committee, the vice chairman of the committee, is also seeking some additional time.

In between, however, Senator Levin has set a schedule to speak. I appreciate the order amongst Members. I will also be happy to yield 5 minutes from Senator Lieberman's time to Senator Rockefeller.

Madam President, the Senator from Michigan worked so hard to craft a series of provisions that were included in this bill. Unfortunately, the conference agreement does not include many of the provisions the Senator cared most about concerning access to information by Congress in order to ensure effective congressional oversight.

I think the loss of those provisions is unfortunate. On the Senate side, they had bipartisan support. I think it reflects a historic tension between Congress and the executive branch when it comes to oversight and the inadequate sharing of information with Congress.

This has been a problem in previous administrations, and it has continued to this day. So the Senator is correct that this objection did not originate with any of the Senate conferees, either Republican or Democrat, and it did reflect the views of the executive branch. I want to make it clear that regardless of whether we have had a Democratic President or a Republican President, that tension has existed over decades.

Madam President, I thank the Senator from West Virginia for his extraordinarily generous comments. We would not be where we are today without the support of the vice chairman of the Senate Intelligence Committee. He contributed greatly to the bill. He was there from the very first day, drawing on his impressive experience in intelligence and national security matters, advising Senator Lieberman and me on what should be in the bill. He was one of our most active and dedicated conferees.

I am very grateful for his support and efforts and his contributions. I realize the bill we produced is by no means a perfect bill, and I know that in the years to come, he and his colleague, Senator Roberts, will work to strengthen and improve our efforts. I thank him very much.

Madam President, it is my understanding that the Senator from West Virginia is scheduled to speak next. The Senator from Virginia is on the list for 30 minutes of time. The Senator from West Virginia is on the list for 2 hours of time. I am uncertain whether the Presiding Officer can be advised whether there is a further order beyond what I have just indicated?

Madam President, I will yield the floor. I just want to indicate that the Senator from Alaska, Mr. Stevens, is also on the list to speak for 5 minutes. I believe he wanted to follow the Senator from West Virginia. And I see that the Senator from Louisiana is also here and would like to speak for 5 minutes. So I ask that they also be put in the queue.

Mr. President, the 9/11 Commission found that the biggest impediment to ``connecting the dots'' was resistance to information sharing. As the Commission stated in its report: ``Agencies uphold a `need to know' culture of information protection rather than promoting a `need to share' culture of integration.'' I ask if the ranking member on the Governmental Affairs Committee, Senator Lieberman, would explain how this legislation addresses this finding of the Commission.

I thank the Senator.

Mr. President, some concerns have been expressed to us about whether the authorities under this bill might be used, or abused, to unduly limit the flow of information to the Congress, State and local governments, and the public. Nothing could be farther from our intent than to chill the appropriate and desirable dissemination of information. This bill does not grant any new authority for the DNI or the President to establish a regime of undue government secrecy. The bill properly affords the DNI authority to protect intelligence sources and methods, but this is the same authority that is currently vested in the Director of Central Intelligence. The legislation does not include any new provisions to criminalize or unduly suppress the lawful sharing of unclassified information, nor does the bill waive any existing protections of government employees who raise legitimate concerns by disclosing information to Congress or through other lawful channels.

I fully expect the DNI and the President will exercise their responsibilities under this bill in a way that fosters--not unreasonably restricts--the flow and dissemination of information to Congress, State and local officials, and the public. Certainly, if there is any indication that the authorities under this legislation are being misused to unduly stifle the flow of information and to thereby defeat the purposes of the bill, I fully expect and intend that Congress will promptly look into and remedy the situation. Congressional oversight of these issues will be fostered by the reports that are required during the implementation and operation of the Information Sharing Environment, and through the establishment of the Privacy and Civil Liberties Oversight Board.

Does the Senator from Connecticut agree with my assessment?

I thank both Senators for their excellent summary of the DHS reporting requirements currently in place. The intent of section 4071 is to encourage DHS to establish a simple and timely method of collecting information. I want to make clear that the intent of this provision is to ensure accurate passenger vessel information is collected and shared with the appropriate authorities in an efficient manner, so it may be compared against one consolidated database to be developed by DHS. The provision is not an entirely new requirement. It is based, in part, on current practices, but is designed to utilize one consolidated and comprehensive terrorist database that can be used to screen crew and passenger data more effectively in all transportation modes, while keeping delays to a minimum.

Mr. President, section 7102 of the conference report provides that the term ``repeated provided support for acts of international terrorism,'' as used in the Export Administration Act, shall include, but not be limited to, ``the recurring use of any part of the territory of the country as a sanctuary for terrorists or terrorist organizations.'' I ask if the ranking member on the Governmental Affairs Committee, Senator Lieberman, would clarify the addition of this criteria to the definition used in the Export Administration Act.

I thank the Senator.

driver's license and personal identification card provisions

Mr. President, I yield to the Senator from Illinois to speak on one of the provisions in the conference report.

If the Senator from Illinois would yield, I would like to speak on that issue.

I want to take this opportunity to thank Senator Durbin for his leadership on this issue. He and I serve together on the Governmental Affairs Committee and we have worked hand-in-hand on identity theft issues.

I wholeheartedly agree with what the Senator has said, and I want to emphasize again how important it is for the appropriate stakeholders to have a seat at the table in developing a recommendation for minimum standards that the Department of Transportation will promulgate. I know that State officials and their representatives from the National Governors Association and the National Conference of State Legislatures have raised serious concerns about Congress imposing unfunded mandates on the States and pre-empting State laws on eligibility requirements. That is why I support the innovative approach we came up with in the Senate bill and the conference report that would allow representatives of State officials to have a real voice in the development of a recommendation for these Federal standards.

That is also why I believe it is important to emphasize that the conference report includes language ensuring that any recommendation made by the negotiated rulemaking committee include an assessment of the benefits and costs of the recommendation. The report also states that the Secretary of Transportation shall award grants to States to help them conform to the minimum standards and that each State shall receive a minimum allocation of grant monies to help offset the costs of implementing the new Federal standards.

I am happy to yield.

The Senator from New Hampshire is correct, and I would also point out that the White House has also weighed in on that issue. In its statement of administration policy, dated October 7, 2004, the White House emphasized the need for ``consultation with the states . . . to address important concerns about flexibility, privacy, and unfunded mandates.'' This conference report maintains those important aspects of the approach in the Senate bill.

I see the distinguished Senator from Connecticut is on the floor and I wonder if the ranking Democrat on the Governmental Affairs Committee, who is the expert on this issue, would be willing to engage in this dialog.

I absolutely agree with the Senator from Connecticut that the negotiated rulemaking process has to include groups that represent the interest of many interested parties, including the States, and applicants for, and holders of, driver's licenses. It is also important to note the Department of Homeland Security and other Federal entities will represent the security interests of the Federal Government in the process.

This collaborative process among all parties is essential to ensure that the final rule strikes the right balance of all the competing interests. One of the interests that should not be lost in this debate is the need for protecting privacy and civil and due process rights of all applicants for, and holders of, driver's licenses and personal identification cards. 1 believe it is crucial that the American people be assured that these new Federal standards will not encroach on their fundamental rights and that their personal information will be handled properly, respectfully, and securely.

That is why we included language in the conference report that specifically requires the agency rulemaking to include procedural safeguards for the privacy rights of applicants and holders of driver's licenses and identification cards.

I thank the Senators from New Hampshire, New Jersey, Illinois, and the distinguished ranking member for their comments, their valuable contributions to this bill, and for participating in this colloquy.

dni, nctc

Mr. President, the legislation that is before the Senate remedies the problem identified by the 9/11 Commission that there is no one in charge of the U.S intelligence community. The Commission found that the Director of Central Intelligence, DCI, has too many jobs-- namely leader of the intelligence community, principal intelligence adviser to the President, and director of the Central Intelligence Agency, CIA--to do any of them effectively. In addition, the Commission found that the DCI lacks sufficient authority to manage the Intelligence Community, including authority over funding, personnel, security, and technology.

The intelligence community is dominated by its component agencies and is organized into ``stovepipes'' that do not share information adequately among themselves and with the rest of government effectively. The DCI lacks the authority to break-down these stovepipes and transform the Intelligence Community into a 21st century enterprise.

The intelligence community needs to operate as a network in order to counter 21st century terrorist networks and other agile foes. Despite many impressive accomplishments since the 9/11 attacks, the intelligence community is unable to transform itself into a network due to its anachronistic structure and is still oriented toward fighting the bureaucratic nation-state enemies of the Cold War.

In response to the 9/11 Commission's findings, this legislation restructures the intelligence community by creating a strong Director of National Intelligence, DNI, who can lead, shape, and transform the 15 organizations of the intelligence community into a cohesive network. It creates a DNI who has the authority needed to set the course for the intelligence community and ensure that the course is followed.

It is fitting that this legislation should be completed during the week of December 7, the day on which the United States was attacked at Pearl Harbor in 1941. The National Security Act of 1947 was adopted in order to prevent another Pearl Harbor attack in the Cold War. This legislation seeks to enable the intelligence community to prevent another 9/11 attack from terrorists and other adversaries in the 21st century.

Under this legislation, the DNI has two primary responsibilities.

First, the DNI is the head of the intelligence community. In this capacity, the DNI will unify and optimize the resources of the intelligence community to serve the President, the National Security Council, and other intelligence consumers. The direct locus of the DNI's authority is the National Intelligence Program, which is the new name for the National Foreign Intelligence Program. The renaming of the program signifies that the national security threats of the 21st century straddle the foreign/domestic divide and that our Intelligence Community must have capabilities that cross this seam.

Second, the DNI is the principal intelligence adviser to the President. Accordingly, the DNI, not the CIA Director, will be responsible for briefing the President, including the President's daily brief. As the President's principal intelligence adviser, the DNI will rely on the National Counterterrorism Center and the National Counter Proliferation Center; additional National Intelligence Centers established by the DNI, which will have primary responsibility for analysis of particular topics or matters; the National Intelligence Council; and all of the analysts who reside within the various agencies of the Intelligence Community.

Mr. President, will the Senator from Connecticut explain the National Intelligence Centers and their purpose?

I thank the Senator and concur with his description of the centers.

This bill provides the DNI with significant new authorities regarding such areas as determining the National Intelligence Program budget and executing its appropriation, transferring funds and personnel, and reprogramming funds. I would like to summarize some of these critical authorities.

Under this bill, the DNI will have sole authority to ``develop and determine'' an annual budget for the National Intelligence Program based on the budget proposals provided by the heads of the agencies and organizations of the intelligence community as well as these agencies' and organizations' respective department heads. The word ``determine'' in the legislation means that the DNI is the decisionmaker regarding the budget and does not share

this authority with any department head. The DNI is to produce a consolidated annual budget for the National Intelligence Program, which ensures the integration of the agencies and entities within the intelligence community.

The heads of such agencies and organizations within the intelligence community must provide directly to the DNI such other information as the DNI requests for the purpose of determining the budget. Thus, the DNI will have direct access to information from such agencies as the National Security Agency in the budget-build process and so be able to understand the needs of each component of the Intelligence Community when determining the annual consolidated national intelligence budget. The department heads may not interpose themselves between the DNI and the heads of agencies and organizations within the intelligence community.

Whereas the DCI today effectively only has a role in the execution of the CIA budget, the DNI will ``ensure the effective execution'' of the entire National Intelligence Program appropriation across the intelligence community. The Director of the Office of Management and Budget, OMB, for instance, must apportion National Intelligence Program funds--whether for the CIA, Federal Bureau of Investigation, FBI, National Security Agency, or any other element of the intelligence community--at the DNI's ``exclusive direction.'' The DNI's ``exclusive direction'' is intended to extend to apportionment plans as well, which delineate how appropriated funds will flow from the U.S. Treasury to the agencies and entities of the intelligence community. The DNI is further responsible for managing the National Intelligence Program appropriation by ``directing the allotment or allocation'' of such appropriation through the heads of departments containing elements of the intelligence community. Department comptrollers must then allot, allocate, reprogram, or transfer those funds ``in an expeditious manner.''

In order to ensure that the National Intelligence Program budget is executed in accordance with the DNI's direction, the DNI will ``monitor the implementation and execution'' of the appropriation, including by audits and evaluations. A department, agency, or entity has no authority to refuse or obstruct DNI-mandated audits. If department comptrollers act in a manner inconsistent with the DNI's directions, then the DNI shall report such action to the President and to Congress within 15 days. I expect that the DNI will need to create a chief financial officer with comptroller-like responsibilities to implement these authorities.

Some observers have raised concerns regarding whether departmental comptrollers are able to `tax' the National Intelligence Program appropriation channeled through their departments in order to pay for fact-of-life costs such as increased fuel costs. The legislation precludes any reprogramming or transfer of funds from the National Intelligence Program without the DNI's consent. In addition, apportionment plans--in which any `taxes' would have to be reflected-- are to be prepared at the DNI's exclusive direction. Accordingly, under this legislation, comptrollers are not authorized to exact such `taxes' unilaterally. Congressionally mandated cuts will also be implemented through the apportionment process, which will occur at the exclusive direction of the DNI.

We have worked closely with White House, OMB, and the National Security Council staff in developing this budget language, and all agree that this language will provide the new DNI with the full budget authority needed to manage the national intelligence budget and appropriation effectively.

The new DNI will also have significantly expanded authorities to transfer personnel and funds. After OMB's approval and congressional notification, the DNI may transfer personnel from one element of the intelligence community to another for not more than 2 years as long as the transfer is for a higher priority intelligence activity and supports an emergent need, improves program effectiveness, or increases efficiency. Most significantly, while personnel transfers must be made in accordance with procedures developed by the DNI and department heads, those department heads will no longer have the right to object to such transfers--as they do under current law. Finally, the DNI is also provided additional authorities to transfer a limited number of personnel upon the establishment of the Office of the DNI and each time a new National Intelligence Center is created.

As I mentioned, National Intelligence Program funds may not be transferred or reprogrammed without the DNI's approval except in accordance with procedures prescribed by the DNI. All transfers and reprogrammings must be for a higher priority intelligence activity; must support an emergent need, improve program effectiveness, or increase efficiency; and may not involve funds from the CIA Reserve for Contingencies or a DNI Reserve for Contingencies. Most importantly, the DNI will not require concurrence for such transfers or reprogrammings from affected department heads as long as they are less than $150 million and 5 percent of a department's National Intelligence Program funds and do not terminate an acquisition program. Thus, the DNI will have unilateral authority to transfer or reprogram a significant National Intelligence Program funds, subject to OMB approval and congressional notification. Permit me to take a moment to mention the DNI Reserve for Contingencies. I believe that creation of this reserve is important to permit the DNI to meet special circumstances that arise.

The DNI is also responsible for overseeing the coordination of the intelligence community's liaison with foreign intelligence and security services to avoid having each agency of the intelligence community pursue an individualistic approach. The DNI will create common policies and strategy among the various entities in the intelligence community to ensure maximum returns from foreign liaison relationships. In implementing the DNI's strategy, the CIA will coordinate foreign liaison ``on the ground'' in foreign countries.

The DNI should be in the chain of command involving the conduct of covert action and will be responsible and accountable to the President for such conduct by the intelligence community, including their funding. The DNI would be undercut if the President interacted directly with the CIA Director--who is the DNI's subordinate--or any other element of the Intelligence Community directly regarding covert action. Instead, this legislation envisions that the President will give orders regarding covert action directly to the DNI, who will then task the CIA and other agencies of the Intelligence community as appropriate.

I thank the Senator and agree with his statements. I previously discussed the purpose of the Office of the DNI, which is to house entities such as the centers which integrate and unify the efforts of the various intelligence agencies to accomplish intelligence missions. The legislation authorizes the DNI to create new entities within the Office of the DNI to respond to new challenges, such as new centers and ad hoc groups.

The legislation also authorizes the DNI to coordinate the performance by elements of the intelligence community of services of common concern that can be more efficiently accomplished in a consolidated manner. For example, there may be information technology services, security services, and personnel services that are being performed in duplicative or competitive manner by various entities across the intelligence community and that the DNI believes would be more efficiently performed--such as by exploiting economies of scale, or preventing discrepancies between agencies--when done in consolidated manner. The DNI may select one entity within the intelligence community to perform those services for the community. The DNI may also create a new entity within the Office of the DNI to perform such services. I expect that the DNI will exercise this authority in order to streamline the intelligence community, reduce discrepancies across agencies, and save resources that can be devoted to producing better intelligence.

I want to highlight two other DNI authorities. Current law precludes the DCI from directing, managing, or undertaking electronic surveillance or physical searches under the Foreign Intelligence Surveillance Act, FISA unless otherwise authorized by statute or executive order. This legislation also precludes the DNI from directing or undertaking such operations. As the legislation makes clear, the role of the Department of Justice and the Attorney General under FISA are unaffected by this legislation. However, this legislation does delete a restriction that now precludes the DNI from managing FISA collection. This change should better ensure that national intelligence collected under FISA is used efficiently and effectively for national purposes.

Current law also makes the CIA the manager of all human intelligence operations. The legislation changes that formulation, authorizing the CIA to manage human intelligence operations abroad. The intent of the legislation is not to have human intelligence operations split among the CIA, the FBI, and elements of other agencies with no one in charge. Instead, it is the DNI who is in charge. Of course, the DNI should not be spending his or her day managing human intelligence operations. Instead, the DNI should delegate his or her authority to an official within the intelligence community, when appropriate.

Indeed, the issue of delegation is critical. This legislation centralizes authority in the DNI in order to clarify responsibility, authority, and accountability for the intelligence community. However, the intent of this legislation is not that the DNI should retain all authority himself or herself. Like any good CEO, the DNI should delegate and decentralize. This legislation centralizes authority so that the DNI can build a network--with information, resources, and personnel flowing freely across the agencies of the intelligence community--that operates in a decentralized, fast, and flexible manner. For example, the DNI should delegate authority to the heads of the National Intelligence Centers so that they can utilize capabilities throughout the intelligence community to accomplish intelligence missions.

Included in this legislation is very strong tasking authority for the DNI. Under current law, the DCI has authority to task assets across the intelligence community to collect information. Pursuant to the National Security Act of 1947 as amended, the DCI controls the tasking of national intelligence assets. Section 403-3 of Title 50, United States Code, states explicitly that the DCI ``determine[s] collection priorities, and resolve[s] conflicts in collection priorities levied on national collection assets.'' The President's latest Executive Order 13355 on the issue is even stronger: It gives the DCI authority to ``manage collection tasking.'' This language is interpreted in practice that the DCI decides whether a satellite is to be positioned over North Korea or Iraq. Of course, the DCI consults closely with the Secretary of Defense--but the DCI is the final decision-maker. And there is no evidence that the military has been dissatisfied in recent conflicts with the supply of intelligence from national collection assets.

The legislation's provision regarding tasking authority merely sharpens current law by making the DNI's authority to task collection and analysis explicit. In this way, the bill essentially codifies current practice.

The DNI's tasking authority will be critical to the DNI's success. The 9/11 Commission envisioned a strong, empowered DNI, with more--not less--authority to control the collection and analysis of intelligence information. The Commission cites specifically the DCI's limited ability ``to influence how . . . technical resources are allocated and used'' as a problem. 9/11 Commission Report, p. 409. In a hearing before the Senate Armed Services Committee on August 17, 2004, Secretary of Defense Donald Rumsfeld spoke of the need to rebuild the intelligence community ``along 21st century lines.'' According to Secretary Rumsfeld, this reorganization includes ``a national intelligence director with authority for tasking collection assets across the government.''

This legislation includes a provision that the Senator from Connecticut and I drafted requiring that the President issue guidelines to ensure the effective implementation and execution within the Executive branch of the authorities granted to the DNI under this legislation, in a manner that respects and does not abrogate the statutory responsibilities of department heads. The interaction among the DNI, department heads, and heads of agencies and entities within the intelligence community is critical and must be as smooth and efficient as possible. These guidelines will be important for ensuring such seamless interaction.

This provision does not authorize the President or department heads to override the DNI's authority as contained in this legislation. This legislation has carefully crafted authorities for the DNI--including budget, transfer, tasking, et cetera--that give the DNI sufficient authority to manage the Intelligence Community. This provision is not intended and should not in practice trump or undermine in any way the DNI's authorities contained in the legislation.

In addition, the legislation amends the Secretary of Defense's authority to implement the DNI's decisions regarding the National Intelligence Program, contained in section 105(a) of the National Security Act of 1947 as amended, to ensure that the Secretary of Defense does not interact with the Intelligence Community in a way that is inconsistent with the DNI's authorities. This provision is another example of Congress's intent to create a strong

DNI with sufficient authority to manage and be accountable for the Intelligence Community, including those elements within the Department of Defense.

Some observers have raised concerns that this legislation will impede the flow of intelligence to the warfighter. I believe that nothing is further from the truth. The warfighter will benefit from far-reaching intelligence reorganization that creates a DNI with significant authorities. The DNI will have the power to force the various Defense and non-Defense intelligence entities to work together seamlessly, creating a more accurate intelligence product that can be shared more quickly than today. The DNI would also be a single point of contact for the military--and the military would know whom to hold responsible if intelligence from national assets is inadequate. The DNI inevitably will prioritize the warfighter's need for intelligence, subject to the direction of the President as to overall intelligence priorities.

I thank the Senator from Connecticut and agree with his statements. Mr. President, I wonder if my distinguished colleague from Connecticut would be kind enough to describe the National Counterterrorism Center provision in our bill.

I thank my colleague and agree with his statements. The new DNI will not need to create a staff from scratch to manage the intelligence community. Today, the DCI relies on the Deputy Director of Central Intelligence for Community Management, DDCI/CM, and that official's staff to coordinate the activities of the intelligence community. This professional staff already has substantial experience that will be invaluable to the DNI in managing the intelligence community. This legislation supplants the DDCI/CM but transfers the official's staff as the DNI considers appropriate to the Office of the DNI. The DNI can then build on this staff as necessary to implement the DNI's new authorities.

Finally, I would like to describe the implementation of this legislation. The legislation does not permit the current DCI to become the DNI without going through the Presidential nomination and Senate confirmation process for the DNI position. This legislation gives the DNI different authorities and responsibilities than the DCI has today. As such, the Senate will need to provide advice and consent to the President's selection for the DNI.

Title I of the intelligence reform legislation takes effect not later than six months after the Act's enactment. The legislation envisions that the President will decide upon the effective date for title I and may effectuate parts of title I at different times within that 6-month period. For example, the President could decide that all or parts of title I become effective upon the confirmation of the DNI. Until such time as the President determines--but in no event later than six months after enactment--the DCI will remain head of the intelligence community and the DDCI/CM and the various assistant DCIs will continue to report to him. The legislation requires that the President submit an implementation report to Congress not later than 180 days after the act's effective date, but it is desirable that this report be submitted as soon as possible.

Some provisions in title I explicitly state that they are effective on the act's date of enactment, namely the transfer of the TTIC or its successor to the NCTC and the transfer of the staff of the DDCI/CM to the Office of the DNI as appropriate. The NCTC has already been created by Executive order, absorbing the TTIC. With respect to the staff of the DDCI/CM, that staff does not cease to exist upon the act's enactment but rather becomes available for transfer to the Office of the DNI after the Office of the DNI is established.

This legislation requires the DNI to take various actions within 180 days of the act's enactment, including submitting a report to Congress concerning operational coordination between the CIA and the Defense Department, assigning an individual or entity to be responsible for analytic integrity, and identifying an individual to serve as an ombudsman. The DNI also shall prescribe regulations and other directives not later than one year after the act's enactment. Thus we hope that the President will move speedily to nominate an individual to serve as the DNI. The threats arrayed against the United States do not afford us a grace period.

information sharing

I agree wholeheartedly with my colleague about the importance of these information sharing provisions. I also want to emphasize that the ISE is not some mammoth new database. Indeed, it is not just technology, but rather represents a combination of technologies and policies designed to facilitate the appropriate sharing of terrorism information.

Section 1016 includes a list of attributes the ISE is required to have. These include such things as facilitating the sharing of information among those who have differing levels of access or clearance or different capacities to make use of the information--i.e., providing information from the beginning in its most shareable form, so that the maximum number of individuals can access the information in at least some meaningful form at its earliest point of consumability-- while having additional details available to those who are granted appropriate access; in this way, the right information gets to the right consumer at the right time. It also includes building on existing systems where possible, rather than creating whole new, and potentially overlapping, systems, and employs an information access management approach that controls access to the data rather than just systems and networks without sacrificing security. And it includes incorporating protections for individuals' privacy and civil liberties from the very beginning--both in the policies of the environment and in technologies and processes to ensure that the policies are adhered to.

In addition to the step-by-step development process my colleague has described, I would also note that the other key means by which the legislation seeks to ensure the successful implementation of the ISE is through the appointment of a program manager. Not later than 120 days after enactment of the legislation, the President is required to designate an individual who is to be responsible for information sharing across the Federal Government. By placing a single individual in charge of the development of the ISE, the legislation seeks to ensure the accountability and focus necessary to accomplish this critically important task.

Although the President has discretion to determine whom to designate as program manager, it is essential, and required by subsection 1016(f)(1), that the program manager have and exercise government-wide authority; the ISE will involve the sharing of terrorism-related information from across the government, including from entities outside the intelligence community--whether bioterror information from the Centers for Disease Control or relevant border information from Customs and immigration offices at the Department of Homeland Security--so that the program manager will be someone with responsibilities that cut across the Federal Government as well. Although the DNI is, and will continue to be, responsible for setting information sharing standards throughout the intelligence community (a responsibility expressly recognized in subsection 1016(e)(10)(A)), it is not our intent that the DNI also assume the further responsibilities of program manager. We expect and intend that whomever is designated as program manager will have the development of the ISE as their sole or primary responsibility, and we believe that it is desirable that the individual have management expertise in enterprise architecture, information sharing and interoperability.

The legislation provides that the program manager is to serve for 2 years, during the initial development of the ISE, to ensure that the project gets off to a sound start. As part of the implementation plan to be submitted to Congress after one year, the program manager is to recommend a future management structure for the ISE, including a recommendation as to whether the position of program manager should continue. During this two-year start up period, the program manager will be assisted in his or her efforts by an Information System Council established by the legislation and based on the existing Information System Council established by the President through executive order. The council, made up of representatives from agencies participating in the ISE, will not only advise the President and the program manager, but also, among other things, provide a means of coordinating among the various agencies participating in the ISE, helping to resolve interagency disputes that may arise. In performing its duties, the council is to consider input from those outside the Federal Government as well--including state, local, and tribal officials and those in the private sector who are potential participants in the ISE or who have relevant policy or technical expertise.

I also note the legislation provides that the individual agencies that possess terrorism information or otherwise participate in the ISE are to fully

cooperate in the development of the ISE. The cooperation of all relevant agencies is critical to the success of this government-wide information sharing effort, and agencies can expect Congressional oversight to ensure that they are planning for, and fully contributing to, the construction of the ISE.

Privacy and Civil Liberties Oversight Board

Specifically, the board established in the bill is to be made up of five members, who are to be appointed by, and serve at the pleasure of, the President. Two of the five members--the chairman and vice-chairman--are also required to be Senate-confirmed. To help ensure an independent and effective board, all of the members are to come from outside the federal government and are expected to be people of stature, selected on the basis of their achievements, experience and independence. All of the members of the board are expected to devote significant time to this important endeavor, and the chairman may be appointed to a full-time position; given the broad responsibilities of the board, we believe that having a full-time chairman though not required would usually be the wisest course.

The Privacy and Civil Liberties Oversight board's purpose is to ensure that privacy and civil liberties concerns are appropriately considered in the implementation of all laws, regulations, and policies that are related to efforts to protect the Nation against terrorism. The board is empowered to carry out its mission in two equally important ways. First, the board is to advise policy makers at the front end, to ensure that when executive branch officials are proposing, making or implementing policy, they appropriately consider and protect privacy and civil liberties. Second, the board is to conduct oversight, by investigating and reviewing government actions at the back end, reviewing the implementation of particular government policies to see whether the government is acting with appropriate respect for privacy and civil liberties and adhering to applicable rules. Further, the bill provides the board with the tools it will need to carry out its functions.

I thank my colleague for his clear explanation. Just as important to the other authorities provided to the board is ensuring some transparency of the activities of the board. Transparency helps to give confidence to the American people that the protection of their civil liberties and privacy is being addressed as we take actions to further protect our Nation from terrorism. To that end, the board is to report to Congress at least annually on its activities, and may do so more frequently, as would be expected should the board complete an important investigation or otherwise make findings or recommendations of which Congress would wish to be apprised. The bill requires that the board's reports to Congress be unclassified to the greatest extent possible, in order to facilitate public discussion of the board's activities; where it is necessary to include classified information in the reports, it is to be included in a separate classified annex. Whether and when to release reports directly to the public or to otherwise engage in activities that directly involve and inform

the public is left to the discretion of the board, but we believe that given the public importance of the issues entrusted to the Privacy and Civil Liberties Oversight Board, openness is called for and will ultimately foster public trust that the government is appropriately protecting privacy and civil liberties as it continues to vigorously fight the war on terror.

Also intended to foster this public trust is the fact that, while the board is exempted from the requirements of the Federal Advisory Committee Act because, as a permanent, ongoing entity, it does not fit comfortably into the mold of the usual subjects of that act, the board is expressly subject to the Freedom of Information Act, like any other agency.

I would like to thank my friend for working with me on these very important provisions. In the wake of the terrorist attacks on September 11, 2001, during his joint address to Congress, the President called on all Americans to ``uphold the values of America and remember why so many have come here. We're in a fight for our principles, and our first responsibility is to live by them.'' Indeed, as we improve government to better secure our Nation against future attacks, we must at the same time protect those American values that define our free society. These freedoms and values are what define us as Americans and what defines our Nation. Since the inception of our Nation, there has been much sacrifice in order for us to have the freedoms we enjoy today. These liberties are what have been entrusted to us to protect. That is why, as we protect our Nation from future terrorist attacks, we also must ensure that we do no trample on the very values that the terrorists seek to destroy.

Mr. President, I ask unanimous consent that a list of my staff members who worked so hard on this bill over so many months be printed in the Record at this point.

Mr. President, I also want to list the conferees on this bill. Contrary, perhaps, to the implications of what we have just heard, this was an extraordinarily open conference, where Democrats and Republicans negotiated side by side in every single meeting. It was a bipartisan effort.

Senators Lott, Roberts, Voinovich, Coleman, Sununu, DeWine, Levin, Rockefeller, Durbin, Graham of Florida, and Senator Lautenberg were the Senate conferees on this important bill. I thank each of them personally for how hard they worked. Each of them contributed greatly to the final product, and I am very grateful for their support.

I wish to also respond to the concept that somehow this issue was rushed. The fact is there have been numerous reports and commissions that have urged intelligence reform going back to 1954. Over and over again, problems were identified in our intelligence structure, even as our country became more vulnerable to asymmetric threats, such as terrorist groups.

The 9/11 Commission, which did, in my view, an outstanding job, reviewed more than 2.5 million pages of documents, interviewed more than 1,200 individuals, held 19 days of hearings, and took public testimony from 160 witnesses. Congress held 44 hearings on the 9/11 Commission's report and recommendations.

The Governmental Affairs Committee, which I am honored to chair, alone held 8 days of hearings and marked up this legislation for 2 full days. We were on the Senate floor for nearly 2 weeks. We considered hundreds of amendments to this bill. The conference on the bill lasted nearly 2 months and received a great deal of attention.

I note that we have made substantive changes to only two provisions in the conference report since November 20 when the conference agreement almost came to the Senate floor.

The November 20 language was widely circulated. It included being provided to the staff of the distinguished senior Senator from West Virginia.

I assert that this was an extraordinarily inclusive process, and all the Members of the Senate have had ample time to review the conference report since, with just two exceptions, which have been highly publicized. It is the same language, for the most part, except for technical changes, as we reported it on November 20.

I wanted to make those points. I know there are other Members desiring

to speak. I will yield the floor, but I reserve the remainder of my time.

Finally, Mr. President, I note that the Senator from New Hampshire, Mr. Sununu, wishes to speak in favor of the conference report. I am prepared to yield him some of my time, but I am not certain how much time I have remaining. If I could be informed by the Presiding Officer as to how much time I have remaining, that would be helpful.

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, I want to discuss section 7212 of the conference report accompanying the intelligence reform bill that deals with minimum standards for driver's licenses and personal identification cards.

I am joined on the floor by Senators Collins, Lieberman, Sununu, and Lautenberg, who are all my colleagues on the Governmental Affairs Committee, and who have been leaders in this effort. I hope they will join in a colloquy to help explain what we collectively intended as we drafted this provision.

In the days immediately following September 11, 2001, we read in the newspapers that the hijackers had in their possessions multiple driver's licenses and State identification cards. The press reported that some of the nineteen hijackers had obtained these documents from DMV offices in States that, at that time, had lenient rules on issuing such documents. They also obtained other official-looking identification documents from the Internet.

In the last Congress, the Governmental Affairs Committee held a hearing that revealed that the 9/11 terrorists took advantage of loopholes in some State DMVs' issuance processes that have been apparent for years to anyone willing to obtain fake IDs.

Following the hearing, I asked the GAO to study how easy it would be for someone to obtain driver's licenses and State ID cards from DMVs, using false pretenses. The GAO investigators went out to several States and conducted undercover operations where they tried to obtain licenses using fake breeder documents, or using other false methods. Incredibly, the GAO investigators succeeded every single time. More incredibly, the GAO study was undertaken several months after some of these same States claimed that they reformed their driver's license issuance processes following the 9/11 tragedies.

In October 2002, I introduced S. 3107, the Driver's License Fraud Prevention Act of 2002, with Senator McCain, to address the glaring problems we uncovered with the hearing and the GAO study. The core goal of that bill was to allow for the Federal Government to work with States and interested parties to develop a set of minimum security standards to be applied uniformly to all States.

In drafting that bill, we had three main principles for reforming the State processes: 1. reform must apply uniformly to all 50 States; 2. State's rights and jurisdictions must be respected; and 3. applicants, holders, and users of driver's licenses must have their privacy, civil liberties, and other constitutional rights protected.

Then, a few months ago, when Senators McCain and Lieberman drafted S. 2774, their comprehensive bill to implement the 9/11 Commission Report, I worked with them to add a provision that would provide Federal standards for driver's licenses. This addressed one of the recommendations that the 9/11 Commission made:

[T]he federal government should set standards for the

issuance of birth certificates and sources of identification,

such as drivers licenses. Fraud in identification documents

is no longer just a problem of theft. At many entry points to

vulnerable facilities, including gates for boarding aircraft,

sources of identification are the last opportunity to ensure

that people are who they say they are and to check whether

they are terrorists.

This provision was adopted unanimously by the Senate as an amendment to the Collins-Lieberman intelligence reform bill, and is also in the conference report before us today. I am glad to see that the provision in the conference report before us today lives up to the three principles I outlined above.

First, the provision would prohibit Federal agencies from accepting, for any official purpose, a driver's license or identification card newly issued by a State more than 2 years after the regulations on minimum Federal standards are promulgated, unless the document conforms to such standards. The language also requires the Transportation Secretary to set a date after which no license may be accepted unless it conforms to the new standards.

This should encourage all 50 States to work together and adopt the minimum Federal standards at the same time so that no State will remain the weakest link in our national efforts to protect our homeland. We want to make sure terrorists and criminals do not forum shop for the easiest State from which to obtain fraudulent ID cards.

Second, the language of the Senate bill as adopted in the conference report requires a negotiated rulemaking process under the Administrative Procedure Act. This requires the formation of a negotiated rulemaking committee that would include representatives of States, among other stakeholders. The committee is empowered to make a recommendation for the minimum standards to be promulgated by the Department of Transportation. The mininum standards would address among other issues 1. documentation required as proof of identity of the applicant; 2. verifiability of documents used to apply for a license; 3. processing of the applications to prevent fraud; and 4. security features to be included in the card.

On this point, I would like to commend the chair of the Governmental Affairs Committee for her tireless efforts on behalf of the States' interests. Senator Collins has worked to ensure that this bill recognizes the limited role of the Federal Government in this area-- issuing driver's licenses are a unique State function and that we should not impose reform measures on States without their valuable input.

Third, the rulemaking process includes safeguards to protect the privacy and due process rights of applicants.

I am happy to yield to the distinguished manager on the floor.

I ask the Senator from Connecticut a related question on how this provision of the conference report deals with the issue of immigration laws.

It is my understanding that the language of the conference report makes it clear that the Federal regulations to be developed by the Department of Transportation cannot directly or indirectly infringe on a State's power to set eligibility criteria for who can qualify to obtain a driver's license or identification card. So if a State has unique reasons for allowing or prohibiting certain groups of people to hold licenses based on their age, physical disability, in-State residency, or legal status in the United States, then, under the conference report language, those would continue to be the State's decisions.

This issue was handled differently by the other Chamber. The House bill had language that would have taken away the States' rights to determine eligibility by imposing a new harsh legal presence requirement for the issuance of driver's licenses. This is the provision that, I believe, created a lot of misunderstanding in the press about what the conference report does.

States around the country are already struggling with the issue of whether to provide licenses to undocumented aliens, and they should continue to work on the issue through their own legislative processes. Congress should not preempt the rights of all 50 States through the backdoor.

The issue of how our country treats those who are here without proper documentation is a complex one that involves myriad of overlapping immigration, foreign policy, and economic laws. We should not open that debate here unless we are ready and willing to address all the comprehensive proposals that ought to be included in such a debate.

I certainly hope the President will engage in this debate, and soon. But obviously, we cannot accomplish such an enormous task of overhauling our immigration laws through the 9/11 Commission bill, and the 9/11 Commission did not ask us to do that. We should not use this bill to require the

States to turn their DMV employees into immigration agents, and this conference report will not do so.

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