Homeland Security Grant Enhancement Act of 2005

Mr. President, I rise today to introduce with my colleagues, Senators Feinstein, Grassley, Kyl, and Cornyn, a comprehensive bipartisan bill to increase gang prosecution and prevention efforts. The bill I introduce today is identical to S. 1735 that was favorably reported by the Senate Judiciary Committee in the 108th Congress.

This legislation, ``The Gang Prevention and Effective Deterrence Act of 2005,'' authorizes approximately $650 million over the next five years to support law enforcement and efforts to prevent youngsters from joining gangs. Of that, $450 million would be used to support Federal, State and local law enforcement efforts against violent gangs, and $200 million would be used for intervention and prevention programs for at- risk youth. The bill increases funding for the Federal prosecutors and Federal Bureau of Investigation (FBI) agents needed to conduct coordinated enforcement efforts against violent gangs.

This bill also creates new criminal gang prosecution offenses, enhances existing gang and violent crime penalties to deter and punish illegal street gangs, enacts violent crime reforms needed to prosecute effectively gang members, and implements a limited reform of the juvenile justice system to facilitate Federal prosecution of 16- and 17-year-old gang members who commit serious violent felonies.

The problem of gang violence in America is not a new one, nor is it a problem that is limited to major urban areas. Once thought to be only a problem in our Nation's largest cities, gangs have invaded smaller communities. Gangs in Salt Lake County result in significant measure from the influence of gangs existing in Los Angeles and Chicago, but with local mutations.

Constituents frequently mention to me their extreme concern about gang violence in Utah. According to the Salt Lake Area Gang Project, a multi-jurisdictional task force created in 1989 to fight gang crime in the Salt Lake area, there are at least 250 identified gangs in Utah with over 3,500 members. In Utah, there are street gangs that are ethnically oriented, such as Hispanic gangs, as well as those affiliated with gangs from other cities, such as the Crips and Bloods, Folks and People, motorcycle gangs, Straight Edge gangs, Animal Liberation Front, Skinheads, Varrio Loco Town, Oquirrh Shadow Boys, Salt Lake Posse, and the list goes on. Some of these gangs are racist; some are extremist.

And what I find particularly troubling is that over one-third of the total gang membership is made up of juveniles. Thus, these crimes have a particular impact on youths.

Gangs now resemble organized crime syndicates which readily engage in gun violence, illegal gun trafficking, illegal drug trafficking and other serious crimes. All too often we read in the headlines about gruesome and tragic stories of rival gang members gunned down, innocent bystanders--adults, teenagers and children--caught in the cross fire of gangland shootings, and family members crying out in grief as they lose loved ones to the gang wars plaguing our communities.

Recent studies confirm that gang violence is an increasing problem in all of our communities. Based on the latest available National Youth Gang Survey, it is now estimated that there are more than 25,000 gangs, and over 750,000 gang members who are active in more than 3,000 jurisdictions across the United States. The most current reports indicate that in 2002 alone, after five years of decline, gang membership has spiked nationwide.

I have been--and remain--committed to supporting Federal, State and local task forces as a model for effective gang enforcement strategies. Working together, these task forces have demonstrated that they can make a difference in the community. In Salt Lake City, the Metro Gang Multi-Jurisdiction Task Force stands out as a critical player in fighting gang violence in Salt Lake City. We need to reassure outstanding organizations like this that there will be adequate resources available to expand and fund these critical task force operations to fight gang violence.

In my study of this problem, it has become clear that the government needs to work with communities to meet this problem head-on and defeat it. If we really want to reduce gang violence, we must ensure that law enforcement has adequate resources and legal tools, and that our communities have the ability to implement proven intervention and prevention strategies, so that gang members who are removed from the community are not simply replaced by the next generation of new gang members.

In closing, I want to commend my colleagues--Senators Feinstein, Grassley, Kyl and Cornyn. They have worked very closely with me as we considered these issues last Congress and I look forward to working with them and others as we proceed this year. I urge my colleagues to join with us in promptly passing this important legislation.

Mr. President, I rise today to introduce the Family Entertainment and Copyright Act of 2005. This important legislation consists of a package of smaller intellectual property bills that the House and Senate have been working to enact since last Congress. This legislation passed the Senate not once, but twice, during the waning days of the last Congress. Unfortunately, though, it was doomed by a non-germane amendment unrelated to intellectual property law. My hope is that we can work together this Congress to avoid this type of pitfall, and I commit to work with other members to do so.

Before beginning my substantive discussion of the bill, I would like to thank my colleagues Senators Leahy, Cornyn, and Feinstein for their ongoing efforts on this legislation. Just as it was last year, this legislation is a group effort, and I want to take care to recognize the contributions and their excellent work along with that of Representatives Sensenbrenner, Smith, Berman, and Conyers in the House.

Before going into a title-by-title discussion of the bill, I would like to express my particular support for the Family Movie Act, which has been included in this legislation. Chairman Lamar Smith and I worked on this bill last Congress. It's important legislation both to parents who want the ability to use new technologies to help shield their families from inappropriate content as well as the technology companies, such as ClearPlay in my home State of Utah, that are working to develop these technologies. The Family Movie Act will give parents more say over what their children see, without limiting the creative control of directors and movie studios.

Title I of this Act, the Artists' Rights and Theft Prevention Act of 2005, (the ART Act), contains a slightly modified version of S. 1932, authored by Senators Cornyn and Feinstein in the 108th Congress. This bill will close two significant gaps in our copyright laws that are feeding some of the piracy now rampant on the Internet.

First, it criminalizes attempts to record movies off of theater screens. These camcorded copies of new movies now appear on filesharing networks almost contemporaneously with the theatrical release of a film. Several States have already taken steps to criminalize this activity, but providing a uniform Federal law--instead of a patchwork of State criminal statutes--will assist law enforcement officials in combating the theft and redistribution of valuable intellectual property embodied in newly-released motion pictures.

Second, the bill will create a pre-registration system that will permit criminal penalties and statutory-damage awards. This will also provide a tool for law enforcement officials combating the growing problem of music and movies being distributed on filesharing networks and circulating on the Internet before they are even released. Obviously, the increasingly frequent situation of copyrighted works

being distributed illegally via the Internet before they are even made available for sale to the public severely undercuts the ability of copyright holders to receive fair and adequate compensation for their works.

Title II of this Act, the Family Movie Act of 2005 (the FMA), resolves some ongoing disputes about the legality of so-called ``jump- and-skip'' technologies that companies like Clearplay in my home State of Utah have developed to permit family-friendly viewing of films that may contain objectionable content. The FMA creates a narrowly defined safe-harbor clarifying that distributors of such technologies will not face liability for copyright or trademark infringement, provided that they comply with the requirements of the Act. I have been working with my colleagues in the Senate and several leaders in the House-- including, most importantly Chairmen Smith and Sensenbrenner--for the past couple of years to resolve this issue. The FMA will help to end aggressive litigation threatening the viability of small companies like Clearplay which are busy creating innovative technologies for consumers that allow them to tailor their home viewing experience to their own individual or family preferences.

The Family Movie Act creates a new exemption in section 110(11) of the Copyright Act for skipping and muting audio and video content in motion pictures during performances of an authorized copy of the motion picture taking place in the course of a private viewing in a household. The version passed last year by the House explicitly excluded from the scope of the new copyright exemption so-called ``ad-skipping'' technologies that make changes, deletions, or additions to commercial advertisements or to network or station promotional announcements that would otherwise be displayed before, during, or after the performance of the motion picture. This provision was included on the House floor to address the concerns of some Members who were concerned that a court might misread the new section 110(11) exemption to apply to ``ad- skipping''' cases, such as in the recent litigation involving ReplayTV.

In the Senate, however, some expressed concern that the inclusion of such explicit language could create unwanted inferences with respect to the merits of the legal positions at the heart of recent ``ad- skipping'' litigation. Those issues remain unsettled in the courts, and it was never the intent of this legislation to resolve or affect those issues in any way. Indeed, the Copyright Act contains literally scores of similar exemptions, and none of those exemptions have been or should be construed to imply anything about the legality of conduct falling outside their scope. As a result, the Copyright Office has now confirmed that such an explicit exclusion is unnecessary to achieve the desired outcome, which is to avoid application of this new exemption in potential future cases involving ad-skipping devices. In order to avoid unnecessary controversy, the Senate bill omits the exclusionary language with the understanding that doing so does not in any way change the scope of the bill.

That this change in no way affects the scope of the exemption is clear when considering that the new section 110(11) exemption protects the ``making imperceptible . . . limited portions of audio or video content of a motion picture. . . .'' An advertisement, under the Copyright Act, is itself a ``motion picture,'' and thus a product or service that enables the skipping of an entire advertisement, in any media, would be beyond the scope of the exemption. Moreover, the phrase ``limited portions'' is intended to refer to portions that are both quantitatively and qualitatively insubstantial in relation to the work as a whole. Where any substantial part of a complete work, such as a commercial advertisement, is made imperceptible, the new section 110(11) exemption would not apply. The limited scope of this exemption does not, however, imply or show that such conduct or a technology that enables such conduct would be infringing. This legislation does not in any way deal with that issue. It means simply that such conduct and products enabling such conduct are not immunized from liability by this exemption.

This bill also differs from the version passed by the House last year in that it adds two ``savings clauses.'' The copyright savings clause makes clear that there should be no spillover effect from the passage of this law: that is, nothing shall be construed to have any effect on rights, defenses, or limitations on rights granted under title 17, other than those explicitly provided for in the new section 110(11) exemption. The trademark savings clause clarifies that no inference can be drawn that a person or company who fails to qualify for the exemption from trademark infringement found in this provision is therefore liable for trademark infringement.

Title III of this Act, the National Film Preservation Act of 2004, will reauthorize the National Film Preservation Board and the National Film Preservation Foundation. These entities have worked successfully to recognize and preserve historically or culturally significant films--often by providing the grants and expertise that enable local historical societies to protect and preserve historically significant films for the local communities for which they are most important. This fine work will ensure that the history of the 20th century will be preserved and available to future generations.

As a conservative Senator from a socially conservative state, I occasionally take a few swings at the movie industry for the quality and content of the motion pictures they are currently creating, but I will note for the record that I commend efforts to ensure that important artistic, cultural, and historically significant films are preserved for future generations. I commend my friend from Vermont for his perseverance in reauthorizing Federal funds to continue this important effort.

Title IV of this act, the ``Preservation of Orphan Works Act,'' also ensures the preservation of valuable historic records by correcting a technical error that unnecessarily narrows a limitation on the copyright law applicable to librarians and archivists. This will strengthen the ability of librarians and archivists to better meet the needs of both researchers and ordinary individuals and will result in greater accessibility of important works. I applaud my colleague in the House--Representative Howard Berman of California--for his efforts on this bill and am pleased to see it included in this Senate package.

Just to conclude, I will again thank Ranking Democratic Member Leahy, Senator Cornyn, Chairmen Sensenbrenner and Smith, as well as Mr. Conyers and Mr. Berman for their bicameral, bipartisan approach to these bills and to intellectual property issues generally.

I ask unanimous consent that the text of the bill be printed in the Record.

I would be happy to yield for a question from the distinguished Senator from Texas.

I thank my friend, the Senator from Texas, for that reminder. I would certainly have no objection to entering our previous colloquy into the Record again and ask unanimous consent that it appear after our remarks.

Mr. President, Section 102 of the ART Act establishes a new provision of Title 18 entitled, ``Unauthorized Recording of Motion Pictures in a Motion Picture Exhibition Facility.'' I ask Senator Cornyn, what is the purpose of this provision?

I have heard it said that this bill could be used against a salesperson or a customer at stores such as Best Buy or Circuit City if he or she were to point a video camera at a television screen showing a movie. Is this cause for concern?

Does the Senator from California agree with your colleague from Texas?

I have also heard some say that this statute could be used to prosecute someone for camcording a DVD at his home. Is this a fair concern?

Do the users of hearing aids, cell phones or similar devices have anything to fear from this statute?

It appears that there is no fair use exception to this provision. Is that correct?

Does the Senator from Texas agree?

My cosponsor, Senator Cornyn, raises an important point. While we removed the ``ad-skipping'' language from the statute to avoid this unnecessary controversy, you are absolutely correct that this does not in any way change the scope of the bill. The bill protects the ``making imperceptible . . . limited portions of audio or video content of a motion picture . . .'' An advertisement, under the Copyright Act, is itself a ``motion picture,'' and thus a product or service that enables the skipping of an entire advertisement, in any media, would be beyond the scope of the exemption. Moreover, the phrase ``limited portions'' is intended to refer to portions that are both quantitatively and qualitatively insubstantial in relation to the work as a whole. Where any substantial part of a complete work, such as a commercial advertisement, is made imperceptible, the new section 110(11) exemption would not apply.

The limited scope of this exemption does not, however, imply or show that

such a product would be infringing. This legislation does not in any way deal with that issue. It means simply that such a product is not immunized from liability by this exemption.

Certainly.

Yes it is. Let me ask that a copy of the section-by- section analysis of the Family Movie Act as amended by the Senate be included in the Record. This section-by-section analysis contains a more complete analysis of the bill as proposed today in the Senate, including the limited changes made by the bill Senators Leahy, Cornyn, Biden, and I offer today.

The analysis follows.

Section-by-Section Analysis of the Family Movie Act of 2004, Amended

and Passed by the Senate

overview

Title II of the Family Entertainment and Copyright Act of

2004 incorporates the House-passed provision of the Family

Movie Act of 2004, with limited changes as reflected in this

section-by-section analysis. As discussed herein, these

changes are not intended to and do not affect the scope,

effect or application of the bill.

The purpose of the Family Movie Act is to empower private

individuals to use technology to skip and mute material that

they find objectionable in movies, without impacting

established doctrines of copyright or trademark law or those

whose business models depend upon advertising. This amendment

to the law should be narrowly construed to effect its

intended purpose only. The sponsors of the legislation have

been careful to tailor narrowly the legislation to clearly

allow specific, consumer-directed activity and not to open or

decide collateral issues or to affect any other potential

or actual disputes in the law.

The bill as proposed in the Senate makes clear that, under

certain conditions, ``making imperceptible'' of limited

portions of audio or video content of a motion picture--that

is, skipping and muting limited portions of movies without

adding any content--as well as the creation or provision of a

computer program or other technology that enables such making

imperceptible, does not violate existing copyright or

trademark laws. That is true whether the movie is on

prerecorded media, like a DVD, or is transmitted to the home,

as through pay-per-view and ``video-on-demand'' services.

Subsection (a): Short Title

Subsection (a) sets forth the short title of the bill as

the Family Movie Act of 2004.

Subsection (b): Exemption from Copyright and Trademark

Infringement for Skipping of Audio or Video Content of

Motion Pictures

Subsection (b) is the Family Movie Act core provision and

creates a new exemption at section 110(11) of the Copyright

Act for the ``making imperceptible'' of limited portions of

audio or video content of a motion picture during a

performance in a private household. This new exemption sets

forth a number of conditions to ensure that it achieves its

intended effect while remaining carefully circumscribed and

avoiding any unintended consequences. The conditions that

allow an exemption, which are discussed in more detail below,

consist of the following:

The making imperceptible must be ``by or at the direction

of a member of a private household.'' This legislation

contemplates that any altered performances of the motion

picture would be made either directly by the viewer or at the

direction of a viewer where the viewer is exercising

substantial choice over the types of content they choose to

skip or mute.

The making imperceptible must occur ``during a performance

in or transmitted to the household for private home

viewing.'' Thus, this provision does not exempt an

unauthorized ``public performance'' of an altered version.

The making imperceptible must be ``from an authorized copy

of a motion picture.'' Thus, skipping and muting from an

unauthorized or ``bootleg'' copy of a motion picture would

not be exempt.

No ``fixed copy'' of the altered version of the motion

picture may be created by the computer program or other

technology that makes imperceptible portions of the audio or

video content of the motion picture. This provision makes

clear that services or technologies that make a fixed copy of

the altered version are not afforded the benefit of this

exemption.

The ``making imperceptible'' of limited portions of a

motion picture does not include the addition of audio or

video content over or in place of other content, such as

placing a modified image of a person, a product, or an

advertisement in place of another, or adding content of any

kind.

These limitations, and other operative provisions of this

new section 110(11) exemption, merit further elaboration as

to their purposes and effects.

The bill makes clear that the ``making imperceptible'' of

limited portions of audio or video content of a motion

picture must be done by or at the direction of a member of a

private household. While this limitation does not require

that the individual member of the private household exercise

ultimate decision-making over each and every scene or element

of dialog in the motion picture that is to be made

imperceptible, it does require that the making imperceptible

be made at the direction of that individual in response to

the individualized preferences expressed by that individual.

The test of ``at the direction of an individual'' would be

satisfied when an individual selects preferences from among

options that are offered by the technology.

An example is the C1earPlay model. C1earPlay provides so-

called `` filter files'' that allow a viewer to express his

or her preferences in a number of different categories,

including language, violence, drug content, sexual content,

and several others. The version of the movie that the viewer

sees depends upon the preferences expressed by that viewer.

Such a model would fall under the liability limitation of the

Family Movie Act.

This limitation, however, would not allow a program

distributor, such as a provider of video-on-demand services,

a cable or satellite channel, or a broadcaster, to make

imperceptible limited portions of a movie in order to provide

an altered version of that movie to all of its customers,

which could violate a number of the copyright owner's

exclusive rights, or to make a determination of scenes to be

skipped or dialog to be muted and to offer to its viewers no

more of a choice than to view an original or an altered

version of that film. Some element of individualized

preferences and control must be present such that the viewer

exercises substantial choice over the types of content they

choose to skip or mute.

It is also important to emphasize that the new section

110(11) exemption is targeted narrowly and specifically at

the act of ``making imperceptible'' limited portions of audio

or video content of a motion picture during a performance

that occurs in, or that is transmitted to, a private

household for private home viewing. This section would not

exempt from liability an otherwise infringing performance, or

a transmission of a performance, during which limited

portions of audio or video content of the motion picture are

made imperceptible. In other words, where a performance in a

household or a transmission of a performance to a household

is done lawfully, the making imperceptible limited portions

of audio or video content of the motion picture during that

performance, consistent with the requirements of this new

section, will not result in infringement liability.

Similarly, an infringing performance in a household, or an

infringing transmission of a performance to a household, are

not rendered non-infringing by section 110(11) by virtue of

the fact that limited portions of audio or video content of

the motion picture being performed are made imperceptible

during such performance or transmission in a manner

consistent with that section.

The bill also provides additional guidance, if not an exact

definition, of what the term ``making imperceptible'' means.

The bill provides specifically that the term ``making

imperceptible'' does not include the addition of audio or

video content that is performed or displayed over or in place

of existing content in a motion picture. This is intended to

make clear in the text of the statute what has been expressed

throughout the consideration of this legislation, which is

that the Family Movie Act does not enable the addition of

content of any kind, including the making imperceptible of

audio or video content by replacing it or by superimposing

other content over it. In other words, for purposes of

section 110(11), ``making imperceptible'' refers solely to

skipping scenes and portions of scenes or muting audio

content from the original, commercially available version of

the motion picture. No other modifications of the content are

addressed or immunized by this legislation.

The House sponsor of this legislation noted in his

explanation of his bill, and the Senate is also aware, that

some copy protection technologies rely on matter placed into

the audio or video signal. The phrase ``limited portions of

audio or video content of a motion picture'' means what it

would naturally seem to mean (i.e., the actual content of

the motion picture) and does not refer to any component of

a copy protection scheme or technology. This provision

does not allow the skipping of technologies or other copy-

protection-related matter for the purpose of defeating

copy protection. Rather, it is expected that skipping and

muting of content

in the actual motion picture will be skipped or muted at

the direction of the viewer based on that viewer's desire

to avoid seeing or hearing the action or sound in the

motion picture. Skipping or muting done for the purpose of

or having the effect of avoiding copy protection

technologies would be an abuse of the safe harbor outlined

in this legislation and may violate section 1201 of title

17.

Violating the Digital Millennium Copyright Act, and

particularly its anti-circumvention provisions, is not

necessary to enable technology of the kind contemplated under

the Family Movie Act. Although the amendment to section 110

provides that it is not an infringement of copyright to

engage in the conduct that is the subject of the Family Movie

Act, the Act does not provide any exemption from the anti-

circumvention provisions of section 1201 of title 17, or from

any other provision of chapter 12 of title 17. It would not

be a defense to a claim of violation of section 1201 that the

circumvention is for the purpose of engaging in the conduct

covered by this new exemption in section 110(11), just as it

is not a defense under section 1201 that the circumvention is

for the purpose of engaging in any other non-infringing

conduct.

There are a number of companies currently providing the

type of products and services covered by this Act. The Family

Movie Act is intended to facilitate the offering of such

products and services, and it certainly creates no impediment

to the technology employed by those companies. Indeed, it is

important to underscore the fact that the support for such

technology and consumer offerings that is reflected in this

legislation is driven in some measure by the desire for

copyright law to be respected and to ensure that technology

is deployed in a way that supports the continued creation and

protection of entertainment and information products that

rely on copyright protection. This legislation reflects the

firm expectation that those rights and the interests of

viewers in their homes can work together in the context

defined in this bill. Any suggestion that support for the

exercise of viewer choice in modifying their viewing

experience of copyrighted works requires violation of either

the copyright in the work or of the copy protection schemes

that provide protection for such work should be rejected as

counter to legislative intent or technological necessity.

The House-passed bill included an explicit exclusion to the

new section 110(11) exemption in cases involving the making

imperceptible of commercial advertisements or network or

station promotional announcements. This provision was added

on the House floor to respond to concerns expressed by

Members during the House Judiciary Committee markup that the

bill might be read somehow to exempt from copyright

infringement liability devices that allow for skipping of

advertisements in the playback of recorded television (so

called ``ad-skipping'' devices). Such a reading is not

consistent with the language of the bill or its intent.

The phrase ``limited portions of audio or video content of

a motion picture'' applies only to the skipping and muting of

scenes or dialog that are part of the motion picture itself,

and not to the skipping of commercial advertisements, which

are themselves considered motions pictures under the

Copyright Act. It also should be noted that the phrase

``limited portions'' is intended to refer to portions that

are both quantitatively and qualitatively insubstantial in

relation to the work as a whole. Where any substantial part

of a complete work (including a commercial advertisement) is

made imperceptible, the section 110(11) exemption would not

apply.

The House-passed bill adopted a ``belt and suspenders''

approach to this question by adding exclusionary language in

the statute itself. Ultimately that provision raised concerns

in the Senate that such exclusionary language would result in

an inference that the bill somehow expresses an opinion, or

even decides, the unresolved legal questions underlying

recent litigation related to these so-called ``ad-skipping''

devices. In the meantime, the Copyright Office also made

clear that such exclusionary language is not necessary. In

other words, the exclusionary language created unnecessary

controversy without adding any needed clarity to the statute.

Thus, the Senate amendment omits the exclusionary language

while leaving the scope and application of the bill exactly

as it was when it passed the House. The legislation does not

provide a defense in cases involving so-called ``ad-

skipping'' devices, and it also does not affect the legal

issues underlying such litigation, one way or another.

Consistent with the intent of the legislation to fix a narrow

and specific copyright issue, this bill seeks very clearly to

avoid unnecessarily interfering with current business models,

especially with respect to advertising, promotional

announcements, and the like. Simply put, the bill as amended

in the Senate is narrowly targeted to the use of technologies

and services that filter out content in movies that a viewer

finds objectionable, and it in no way relates to or affects

the legality of so-called ``ad-skipping'' technologies.

There are a variety of services currently in litigation

that distribute actual copies of altered movies. This type of

activity is not covered by the section 110(11) exemption

created by the Family Movie Act. There is a basic distinction

between a viewer choosing to alter what is visible or audible

when viewing a film, the focus of this legislation, and a

separate entity choosing to create and distribute a single,

altered version to members of the public. The section 110(11)

exemption only applies to viewer directed changes to the

viewing experience, and not the making or distribution of

actual altered copies of the motion picture.

Related to this point, during consideration of this

legislation in the House there were conflicting expert

opinions on whether fixation is required to infringe the

derivative work right under the Copyright Act, as well as

whether evidence of Congressional intent in enacting the 1976

Copyright Act supports the notion that fixation should not be

a prerequisite for the preparation of an infringing

derivative work. This legislation should not be construed to

be predicated on or to take a position on whether fixation is

necessary to violate the derivative work right, or whether

the conduct that is immunized by this legislation would be

infringing in the absence of this legislation. Subsection (b)

also provides a savings clause to make clear that the newly-

created copyright exemption is not to be construed to have

any effect on rights, defenses, or limitations on rights

granted under title 17, other than those explicitly provided

for in the new section 110(11) exemption.

Subsection (c): Exemption from Trademark Infringement

Subsection (c) provides for a limited exemption from

trademark infringement for those engaged in the conduct

described in the new section 110(11) of the Copyright Act. In

short, this subsection makes clear that a person engaging in

the conduct described in section 110(11)--the ``making

imperceptible'' of portions of audio or video content of a

motion picture or the creation or provision of technology to

enable such making available--is not subject to trademark

infringement liability based on that conduct, provided that

person's conduct complies with the requirements of section

110(11). This section provides a similar exemption for a

manufacturer, licensee or licensor of technology that enables

such making imperceptible, but such manufacturer, licensee or

licensor is subject to the additional requirement that it

ensure that the technology provides a clear and conspicuous

notice at the beginning of each performance that the

performance of the motion picture is altered from the

performance intended by the director or the copyright holder.

Of course, nothing in this section would immunize someone

whose conduct, apart from the narrow conduct described by

110(11), rises to the level of a Lanham Act violation. For

example, someone who provides technology to enable the making

imperceptible limited portions of a motion picture consistent

with section 110(11) could not be held liable on account of

such conduct under the Trademark Act, but if in providing

such . . .

Mr. President, I ask unanimous consent that the following Appropriations Committee staff members and interns be granted the privilege of the floor during the consideration of the fiscal year 2006 Homeland Security appropriations bill and any votes that may occur in relation thereto: Shannon O'Keefe, Carol Cribbs, Kimberly Nelson, James Hayes, Avery Forbes, Carolina Poarch, Pete Flynn, Jonathan Cahoon, and Will Post.

Mr. President, we turn now to the Homeland Security bill. This is obviously a timely period for taking up this legislation in light of what has happened in London. We recognize, once again, as a result of the heinous crimes that were committed in London that there are people out there who totally disregard innocent life and who are willing to kill innocent individuals simply for the purpose of making a political statement as to what

their cause is or what their presumed cause may be.

Of course, we were, unfortunately, focused on this fact by 9/11, but maybe over the last 2 or 3 years the success of our Nation in resisting attacks has caused a touch of complacency in this area. However, London has to clearly remind us that complacency cannot be tolerated when it comes to fighting these people who call themselves Islamic fundamentalists and who are essentially killers, terrorists, murderers without any moral creed or cause, and whose actions are totally unjustified in any form of civilized society.

The Department of Homeland Security was set up in the post-9/11 world in order to try as a nation to get our arms around the issue of how we can best protect us in the United States of America. It was set up in the context of other agencies that have responsibility for other areas of protecting us relative to this war on terrorism.

Of course, we have our Defense Department which is, through its extraordinary men and women, pursuing the fight against terrorism in Afghanistan and in Iraq. We also have agencies, such as the Central Intelligence Agency, the FBI, and the Justice Department, that are committed to making sure they obtain the intelligence necessary to protect us. But within this umbrella of agencies which are trying to pursue this war on terrorism, there is included, of course, the Department of Homeland Security.

The Department of Homeland Security was put together as an amalgamation of different agencies. I think there were 22 initially that were thrown together. Some of those agencies, when they were put into the Department of Homeland Security, were already functioning extraordinarily well and had a track record of success. Some of the other agencies had a spotty track record. Regrettably, some of the agencies did not have a very good track record at all. But they were brought together for the purposes of trying to involve a coordinated effort in the area of fighting terrorism.

I believe we have to recognize, as we pursue this fight on terrorism, that the people we are fighting are driven by a philosophy which we as a rational society, especially as a Western society, find hard to fathom. The concept that you would kill innocent civilians simply for the purpose of making a point is something which we find repugnant and almost incomprehensible. But that is the nature of the people we fight. We have to understand their purpose is not necessarily to win a global war in the sense it has historically been perceived, such as World War I or World War II, or even the Cold War. Their purpose essentially is to assert their culture in a way that destroys any culture which they perceive as alien to it, to assert their religion in a way in which they perceive destroys any religion which they see as alien to it, or any group of states which they see as alien to it. They are willing to pursue this with fanaticism which allows them to develop individuals and attitudes where people will strap bombs to themselves and attack us or where they attack innocent individuals, as they did in London. And thus, the threat is a threat of immense proportion, and it is a threat which we have to pursue in a different way than we have pursued other threats that have confronted our Nation.

We all understand this, but executing it has become difficult. I believe we have not yet grasped as a nation how we execute in defending ourselves from this type of threat. What we know is this, and our approach must be tempered by it: We know we can order the priority of the threats as they reflect relative to us. We know, for example, if these individuals get their hands on a weapon of mass destruction-- chemical, biological or, God forbid, a nuclear-capable weapon--that they will use that weapon. They will use it in a way which kills tens of thousands, essentially hundreds of thousands of innocent individuals. So we know that is the No. 1 threat we must confront.

We know also that as a nation, because we are a democracy and because we are an open nation and because we seek to participate in the world in an open and vibrant way, our borders are porous and that access into this country is easy, and that represents, regrettably now, a threat to us.

We know also that because we are such an open society and because we are a society which is built around the concept of individual responsibility and people being able to go out in the world and participate in activities, that we have innumerable areas of infrastructure, areas of individual participation and activity which are open to attack, such as occurred in London. And that is an issue of threat.

What we have attempted to do in this bill is take the resources we have and focus them on a threat-based approach so that we basically focus the most resources on the area where we see the greatest threat. The way we structured this bill is that we are focusing most of the energy of this bill, most of dollars in this bill, in two primary areas, as far as new dollars are concerned. We are still spending a lot of dollars in a lot of different places, but the new initiatives in this bill are focused on trying to better get a handle on defending ourselves from an attack by a weapon of mass destruction and, secondly, making our borders, which are inordinately porous, less porous and having better accountability as to who is coming into this country and what their purposes are.

We moved a fair amount of money in this bill to try to accomplish those two basic philosophical goals of addressing those two items of threat. That does not mean we underfunded anything in this bill that was already on the board. But it does mean we tried to focus this bill a little bit better.

Within this legislation there are a lot of different agencies. As I mentioned earlier, some of them are functioning extraordinarily well, some are functioning in between, and some simply are not doing as good a job as we hoped they could do. Regrettably, this agency, even though it has only been around for 2 years, has had over 486 reports written about it by either the inspector general, the CRS, or the GAO. I brought them with me because I think they are so staggering in their proportions it is worth looking at in physical proportions the number of reports. There are three piles. If we take one pile, which I probably cannot pick up, and put it on top of another pile--it will all fall over, unfortunately--we end up with almost 3 feet 9 inches of reports about things not going that well at the Homeland Security Department. Each one of these reports is substantive. Each one of these reports is worth review and requires action. They reflect the fact that almost 3 years after this Department was put together, the Department has some very serious problems, and they need to be addressed.

I congratulate the new Secretary, Mr. Chertoff, for his approach to trying to get a handle on some of these problems. He is going to report to us Wednesday or Thursday on what his second stage review is. He put a lot of time into this, but I think his approach will probably be based on the concept that we have to have, first, a policy-driven approach and, second, it has to be systemwide. Today, there is too much anecdotal reaction in the Department, there is too much haphazard reaction, there is too much reaction to the crisis of the day. I think his approach is going to be to put in place a much more systematized approach. But that is not going to immediately resolve the problem. Hopefully, it will begin the process of resolving the problems of this Department, which are many and acute.

This bill does put in place a large number of what, for lack of a better word, we in the Congress call fences, where we essentially say to the Department: Before you get this money, you have to show us you are going to do this effectively. It is not something I like to do. I am a legislator; I am not a manager. I used to be a manager. I used to be a Governor of a State. That is a management position. But when we see a department which has as many functions as this Department and it is not functioning correctly, regrettably, I do think it is the responsibility of the Congress and especially the Appropriations Committee, which has a unique oversight role, to step in and say before we give you more money to do this, we want to make sure that money is not going to be wasted, mismanaged, misplaced, or misappropriated, so we are going to require you to do something else. So this bill has in it a lot of what I would call fences.

The purpose of the bill, as I mentioned, is to fund more aggressively those areas which we see as threats.

Obviously, after London, many people are going to feel that a threat which needs to receive more attention is the question of how we handle mass transit. I could not agree more. There is no question but in light of the London attack--and we knew long before this with the Madrid attack and before that with the Israeli situation--this is a clear area where terrorists, who have no regard for human life, tend to focus their heinous activity. We know mass transit is an issue, but the question becomes how do we best protect mass transit.

We have put in this bill over the last few years literally tens of millions, now hundreds of millions of dollars which is available for upgrading security, for upgrading electronic surveillance, for upgrading bomb dog activity, for upgrading the number of police officers on mass transit. There is pending, in fact, within the Federal Treasury about $115 million to $150 million that has not been spent. There has been so much money put into this so quickly, it simply has not been spent, and it is still available.

On top of that, there is the $7 billion which we have put into first responder money which, if States want to reallocate some of that toward mass transit protection, they can. That has not been spent. So there is a lot of money sitting there for the purpose of helping mass transit.

If you talk with people who run mass transit, they say it is not enough. But as a practical matter, it has not been spent yet. So whether it is enough is clearly irrelevant because until it gets spent, it is clearly enough.

Independent of that, however--the fact that there is still significant dollars in the stream of things--we have the issue of how to effectively defend mass transit. We all know mass transit is such a huge enterprise where millions of people, on a daily basis--tens of millions if you take all the transit systems in this country--are moving in and out of different transit modes, whether it is trains, buses, or ferries, and are moving in and out of these on a constantly churning basis. The opportunities to attack this type of a system are almost endless.

A professional terrorist--and clearly these people are professional. They train for the purpose of killing people, using terrorist weapons. The professional terrorist is always--almost always going to be able to find, in a nation our size, with a transportation system of this size, going to be able to find a point of attack that is not secure unless--I doubt that we could spend anywhere near enough money. We have enough money to spend to fully secure mass transit, and if we did we would probably make mass transit nonfunctional.

Yes, we can raise the visibility by putting more officers on trains, more bomb dogs and surveillance agents, and we should do that, but as a practical matter the way you protect your mass transit system is the same way you protect your other infrastructure systems. It is through aggressive and robust intelligence. You have to know who these people are before they attack you. That is the key to this exercise--robust intelligence capability. And there is some irony because to accomplish robust intelligence capability you have to go where the people come from. Where do they come from? They come from the Middle East. We are fighting them in the Middle East. Yet people who have concerns about that want to put dramatically new dollars into the mass transit system.

Well, the best place to get intelligence, quite honestly, is the breeding ground of these terrorists: Iraq, Afghanistan. And so that war in Iraq and Afghanistan is, as the President has pointed out a number of times, taking the war to them to find them before they can find us. Then, once you capture the people, you have to get the intelligence from them. That is why Guantanamo Bay is such an important part of intelligence of our country and why people come down to the floor and compare it to a Nazi concentration camp is such a gross misstatement of our purpose there and the actual action there. It is totally irresponsible to make statements such as that. No one has ever lost their life at Guantanamo Bay, and the interrogations which occur there occur under strict regimes. They are constantly monitored and meet all the necessary responsibilities of legal and humane rights.

But we get vast amounts of information as a result of moving very bad people from the Iraq and Afghanistan arena over to Guantanamo Bay. We get a vast amount of information from those individuals which gives us the intelligence we need.

Then, of course, you have the issue of profiling. Clearly, if you are going to stop these people, you are going to have to profile. That is being resisted. And then, of course, you have the issue of the PATRIOT Act. Clearly, if you are going to stop these people, you have to know what they are doing, and the way to do it is through electronic interdiction of their activities to a large degree. Yet you have people resisting.

Intelligence is the key to defending mass transit. Yet within this body, regrettably, there is a lot of resistance to those elements of our efforts which are necessary in order to effectively pursue strong intelligence. But that is not an issue for this bill. The homeland security intelligence role is not at the margin, but it is certainly not at the center of the effort to gather intelligence. That is done by other agencies--the Defense Department, CIA, and FBI. However, I certainly am willing to entertain moving more money into mass transit. We could probably do another $100 million in mass transit and not affect this bill substantially. But once you get beyond that, you are going to have to take it out of the deficit or someplace like that. But will you buy more security with those dollars? Not a great deal, I don't think, because the people you are dealing with know how to get around those types of security initiatives however well you may create a better sense of security.

This bill will, I suspect, over the next few days come under amendment in the area of how better to protect our borders. Maybe we will get better border security. The other part of the equation is how you let people into this country who legitimately want to come to work and are not seeking to do us harm but seeking to improve their livelihood. The Guest Worker Program, maybe we will get into that program, and certainly how best to address mass transit protection in light of London. I am open to all of that. I am flexible. Our purpose here is to make this agency work better.

In that context, I congratulate the Senator from West Virginia, my ranking member, and who has joined us on the floor. He has been a partner in putting this effort together. He is totally committed to trying to make sure we have a much safer country and a stronger Department of Homeland Security. He has done a great job of putting forward his ideas, many of which I totally agree with, some of which I may not agree with, but most of which I do agree with. I respect immensely his years of service to this Nation, which have been extraordinary, and his counsel, which is exceptional. I thank him and his staff for the generous and extraordinary way they approach everything, but especially this bill. As we move forward, I am sure he will have some additional ideas of how we can improve it on the floor, and I look forward to hearing those thoughts and ideas and I continue to look forward as we move this bill down the road to passage sooner rather than later because the Nation does need a Homeland Security bill.

I yield the floor.

Mr. President, I thank the Senator from West Virginia. He always brings a great deal of substance and thought to whatever issue he decides to pursue on the Senate floor. Once again, in the opening statement, he reflected that. He does outline many of the issues which need to be addressed. He outlines them well and makes very strong points. It is a result of a cooperative effort between his staff, my staff, himself, and myself that we have gotten this bill to this point. As he said, the purpose of this bill is to address the threats. That is our goal.

Obviously, there is going to need to be, in light of the London event, some adjustment in the accounts relative to mass transit, and there may be other areas where the Senate wishes to work its will.

The basic goal of this bill, as the Senator from West Virginia has said, and in which he played a major part, is to address the real problems, the real threats that face this Nation. I continue to try to do that, working with the Senator from West Virginia. I appreciate all his cooperation and his effort.

I yield the floor.

Mr. President, there is now pending on this bill an amendment offered by the Democratic leader, Senator Reid, relative to the Veterans' Administration. I am not sure how that is going to be handled, but clearly the bill becomes tied up in that issue for a while. I am not sure whether people are even going to come down and debate that amendment, as it was offered last week to the Interior bill. I am not really involved in that skirmish, but I do want to bring us back to the essence of this bill and the purpose of this bill and return to the fact that from my standpoint the biggest concern we have to address is weapons of mass destruction. The second biggest concern is border security.

I wish to talk a little bit about border security because I do believe this is where the Homeland Security agency can make the largest contribution toward trying to make our Nation more secure.

I know there is a lot of concern out there today about what happened in England. But you have to remember that the people who probably committed that act in England came from outside of England. They came into England with evil intent. In fact, I have seen some early news reports which have implied the detonating mechanisms used were of a type you could not acquire in England; therefore, it is presumed that the people who committed this act came from outside of England. I think one can safely assume that, especially in light of 9/11 where the people who attacked us came from outside our country, although in some instances they came with legal visas.

So it is critical we get control of our borders. Last year, over 3 million people came into this country illegally--3 million people. The estimate is somewhere between 11 and 15 million people are in this country illegally. We know that a large percentage of those people, especially people coming across our border with Mexico, are coming here because they have a legitimate desire to work in America. They are seeking jobs. I guess it is a reflection of the strength of our economy and the strength of our Nation that people seek to come to America in order to get a better livelihood and to give their families a better chance of having a better livelihood.

Those people are not threats. Those people are here to put in a hard day's work and make enough money to have a decent living. In many cases, they are doing jobs Americans are unwilling to do. There ought to be a way to address that concern, and it ought to be some sort of guest worker program. Hopefully, we will address that as a Congress. We should address that. I consider it to be one of the primary needs we have to address.

In the context of homeland security, if we could in some way identify effectively people who are coming across our borders who are coming not with the purpose of ill-intent but with the purpose of having a decent job, that would significantly reduce the number of people we would have to focus on relative to the threat they present. So a decent and intelligent immigration policy in this country, with an effective guest worker program, is critical to our national security.

But that is not the responsibility of the Homeland Security agency. The Homeland Security agency's purpose is to actually have the physical people on the border who check the people who come across the border and stop the people coming across the border illegally. The pile of reports I referred to before--the actual plurality of them if not the majority of them--reflect the failures of our ability to adequately monitor our borders. We have found we are not doing a very good job on our borders.

As I said, 3 million people are coming into the country illegally every year--that is the estimate--and over 10 million people who are probably here illegally already. A fair percentage of those folks are not Mexican. They are coming from another country, but they are coming across the Mexican border. And those people may very well represent legitimate threats to our country. So we need to do something to address this issue.

There are different levels where we need to address this issue. I mentioned the guest worker program would be a major effort in this area, but in the area of just plain security, there are initiatives that need to be pursued. So what we did was we looked at what was happening with our border security effort and concluded there were certain programs on the border that needed really significant increase in resources in order to be effective.

Some of them, unfortunately, could not take as much resources as we would like to have given them because they simply could not handle it effectively. The first was just simply feet on the ground. We need more Border Patrol agents on the ground, especially on the southern border. That is a feet-on-the-ground issue. Unfortunately, because of the training capacity and because of the ability to hire people who want to go into the Border Patrol as a career, we cannot add as many people as we would like to add.

As was mentioned by the Senator from West Virginia, there was, 3 or 4 years ago, a proposal to hire 2,000 a year. What we found was the Border Patrol simply could not find the people. And then they could not train the people when they did find them. However, we decided a significant increase was important. Working with the Senator from West Virginia again, in the supplemental, we added 500 new Border Patrol agents this year. We have now added another 1,000 agents with this bill, for an additional 1,500 agents. So that is actually a little bit outside the envelope of what the Border Patrol can effectively train.

We are also significantly increasing the commitment to the training facilities so we can increase training capacity so that next year, when we have this bill, it is my intention to add more than 1,500. I hope to get up to 2,000 next year. The year after that, I hope to get to 2,500. The goal is to get to 10,000 new Border Patrol agents within 5 years. Whether we can reach it, I do not know. But if we can get the training facilities up, get the infrastructure up that supports these people, and get the Border Patrol agents up, then maybe we can do it effectively. But the first step is to add these additional 1,500 agents.

Now, once you have the Border Patrol physically on the ground, they are going to catch people. That is their job. The problem today is that when they catch people they have to let them go. They send them over to the court, and the court sends them out on their own recognizance. They are supposed to return for a court date, and they never return. About 85 percent of the people who are asked to return do not return. Well, that is not too surprising, really. They came here illegally. Why are they going to return when they are told they can go away and come back on a different date for their court appearance?

We need better and more capacity in the area of detention. So this bill, working with the supplemental, again working with the Senator from West Virginia, adds about 4,000 new detention beds. Again, our goal is, within a limited period of time--hopefully not 5 years in this case, hopefully even less--to be able to detain effectively anybody who is caught who is other than a Mexican citizen coming across our border with Mexico, to be able to detain that person as long as it is necessary to make sure they are not a threat to us. It is something we cannot do today. But this bill moves in that direction by adding 4,000 new beds in this area.

We also have the unmanned vehicle program. This program, which is an important element of the surveillance of our borders, has fallen on hard times. In fact, the vehicles were basically stopped about a year and a half ago. They just stopped running them because they were not working. They started again, and this bill attempts to get the unmanned vehicle program running at a much more aggressive level. This is a tremendous opportunity for us to survey the border using fewer personnel more efficiently.

In addition, we have technology on the borders, the video and the other types of sensor capability. Again, we have run into major technology problems. Contracts were let that should not have been or were let ineffectually. One more time we got a bunch of reports on this one. While the program has been restarted, this bill tries to make sure the program goes forward effectively. This is a fencing issue here. We are saying we were going to give you a lot more funds, but we want to make sure the funds are spent effectively.

Also in the area of people coming into this country legitimately who actually are going through our immigration entrance system, we have very significant issues of being able to track who they are and when they come in and when they leave. In order to address that, we are trying to set something up called US-VISIT which is a major new technology initiative of extreme complexity. Therefore, I recognize it is not going to come on line maybe in a perfect way.

What we are concerned about, speaking for the Senate and for the subcommittee, is that the US-VISIT Program, which is going to purchase massive amounts of software and hardware capability to go into the immigration system, that that program not end up being like the programs we have had in other major Federal agencies which have initiated major complex IT initiatives, such as the Trilogy Program at the FBI, that we not end up being halfway down the road, hundreds of millions of dollars having been spent, and we realize we have a program that doesn't work. This bill attempts to make sure that the US-VISIT Program is being brought on line in a way that we have benchmarks and we know the software is meeting the criteria and the regimes that are appropriate to that type of software and that the hardware can interface with it effectively.

This bill makes a major initiative in the area of basically putting emphasis on the borders, both with the feet-on-the-ground issue, with the technology issue, and with the capital infrastructure issue in the area of border facilities and detention facilities. Therefore, I think it is the right approach. Is it going to get our borders secure unilaterally by this effort? Obviously not. But it is a step in the right direction and part of the formula that should lead us to borders which are more secure.

The simple fact is, as a nation, we are not going to be able to protect ourselves from the significant threat of these individuals who will come here for the purposes of killing Americans, and for no other purpose, until we get effective control over the borders and know who is coming in and why they are coming and make sure we do not allow or are able to stop people who are coming into this country whose purpose is to commit acts which will harm Americans. This bill is an attempt to step down that road in a much more aggressive way.

I yield the floor and suggest the absence of a quorum.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I send an amendment to the desk and ask for its consideration.

Mr. President, I ask unanimous consent that the pending amendment be set aside.

Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. President, I ask unanimous consent that the amendment be agreed to.

Mr. President, I understand the Senator's point. My purpose here is to recognize the fact that we put over $2 billion into equipment, and we need to start focusing on training. This will move $50 million over to the training side and still leave in the pipeline a dramatic amount of money for equipment. We can address that issue down the road, as the Senator from West Virginia represents he may wish to do, but at this point I think this reallocation of funds is a statement of policy that is appropriate.

I again ask unanimous consent that the amendment be agreed to.

I suggest the absence of a quorum.

Mr. President, I ask unanimous consent that at 5:30 this afternoon, the Senate proceed to a vote on the adoption of a resolution which is at the desk and relates to the recent bombings in London; provided further that no amendments be in order to the resolution or preamble. I further ask that there be a moment of silence prior to the vote on the resolution.

Mr. President, I suggest the absence of a quorum.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I ask unanimous consent that the Reid amendment be temporarily set aside for the purpose of offering an amendment.

Mr. President, I have an amendment at the desk. I call up the amendment No. 1142.

I ask unanimous consent the reading of the amendment be dispensed with.

Mr. President, I rise today with my good friend, Senator Lieberman, to offer an amendment to the Homeland Security appropriations bill. Let me note at the outset my appreciation for the work that Senator

Lieberman has done on this issue. He and I have worked together with members of the Homeland Security Subcommittee for the past 3 years on this authorization to develop an improved homeland security funding approach based on extensive hearings we have held, much consultation, and hard work by our committee.

We are pleased to be joined by several cosponsors, including Senators Carper, Coleman, Akaka, Voinovich, DeWine, Bingaman, and Salazar.

The amendment we offer would for the first time authorize a framework for the billions of dollars the Department of Homeland Security allocates each year to assist first responders and State and local officials in helping to prevent terrorism and to prepare for an attack. That important point bears repeating. The more than $8 billion that Congress has appropriated for grants to States and localities for terrorism prevention and response since 9/11 has never been definitively authorized.

This is not a matter of an authorization having expired, which happens quite frequently around here, but rather of a multibillion- dollar program that has never been authorized. This is highly unusual. In fact, my staff checked with CRS, which went back a decade and could not find a single other grant program over $1 billion that has never been authorized. Sure the appropriators have borrowed a funding formula from the PATRIOT Act, although the bill before us does not use that formula, but in truth the appropriators have had to legislate the details of the Homeland Security Grant Program year after year. So, for example, the House-passed version of this year's Homeland Security appropriations bill determines the minimum allocation that each State is to receive, establishes a strict timeframe for applications to be submitted and for the Department to act on them, requires 80 percent of the grants to be passed on by States to local governments within 60 days, determines for what funds can and cannot be used, and requires grantees to submit reports on their use of funds. That is a lot of legislative language on the House-passed appropriations bills, and indeed the Senate version before us contains similar legislative provisions.

These are the kinds of programmatic decisions that Congress is supposed to determine through authorization bills, not each year anew on an appropriations bill. What Senator Lieberman and I are offering today is the specific, detailed authorization bill that this program has never had. Frankly, we would prefer not to do this, not to offer it to the appropriations bill. We believe our legislation, S. 21, which is the product of numerous legislative hearings, two markups, and input from countless interested parties and many homeland security experts, should be considered by the full Senate on its own. The House recently passed a companion measure. S. 21 is on the Senate calendar, having been reported by the Homeland Security Subcommittee without dissent on April 13. But there are no assurances that it will be brought to the Senate floor. So we are offering our authorization bill as an amendment to this appropriations measure.

Although Senate rule XVI generally prohibits authorizing on an appropriations bill, ironically there is an exception when the House has, in essence, opened the door by legislating on the matter in its own bill. That is what has happened here, so we believe that rule XVI is not implicated.

Mr. President, you may be saying, Why does this really matter? What is important about this bill that it should be brought up rather than allowing the situation to continue with slight tweaks and variations and new legislative language on the appropriations bill, year after year? Let me talk about the amendment, which is the text of S. 21 as reported, with a few changes.

The amendment establishes a new formula for distributing homeland security grant dollars. It determines how funds are to be allocated, sets criteria to ensure that the funds are spent in ways that help States and communities develop essential capabilities to prevent and respond to terrorism, and it holds grantees responsible for achieving results.

Perhaps the amendment's most important provisions are those that inject needed accountability measures into the grants process. We have all heard the horror stories about inappropriate spending of homeland security funds. This waste is intolerable, but particularly so when there are so many unmet needs that are scrambling for funds--needs where the funding simply is not available. Our amendment will put into place tough new standards to ensure that homeland security funds are spent wisely and in ways that will help us better prepare for, or respond to, or prevent a terrorist attack.

Let me refer to this chart which summarizes the accountability measures that are included in the Collins-Lieberman provisions. The first is tying spending to standards. This amendment requires that States distribute and spend homeland security funds only in ways that measurably help them meet preparedness standards and achieve essential capabilities to be determined by the Department of Homeland Security. In other words, no more spending homeland security dollars on leather jackets in the District of Columbia or air-conditioned garbage trucks in New Jersey. For that matter, even purchases of perfectly appropriate items such as hazmat suits must be tied to achieving essential capabilities set by the Department. This safeguard is designed to prevent a community from purchasing equipment that it has no reasonable expectation of needing. I know this is an issue with which the chairman of the subcommittee, Senator Gregg, has been particularly concerned.

The second accountability measure is a thorough annual audit by the General Accounting Office to ensure that funds are not being wasted and that the program is working as intended.

Third is greater coordination among the many grant programs that fund prevention and response efforts. Our amendment would create a Federal interagency committee to promote coordination of homeland security grants throughout the Federal Government. In particular, this committee would focus on eliminating redundant application, planning, and reporting requirements faced by States, local governments, and first responders in applying for and executing different Federal homeland security-related grants.

Fourth are robust reporting requirements. These are the means by which accountability can be enforced. The amendment requires grant recipients to submit annual reports on their specific uses of grant funds and their progress in achieving essential capabilities. These reports would be submitted to the Secretary. The Secretary, in turn, would be required to submit an annual report to Congress, providing an accounting of how grants to States and communities are spent and an evaluation of their progress.

Fifth are the remedies for noncompliance, what I call the enforcement mechanisms. The amendment empowers the Secretary to terminate or reduce grant payments if a State or locality fails to comply with all the requirements of the grant.

In addition to these tough new accountability measures, our amendment authorizes a funding amount that is adequate and a distribution formula that is fair. This legislation dramatically increases the funds that would be distributed based on threat, risk, and consequences. It also maintains a meaningful level of funding for each State. Much of the frontline responsibility for homeland security has fallen squarely on the shoulders of our State and local officials and our Nation's more than 9 million first responders. Communities across America have risen to this challenge and developed scores of innovative homeland security strategies. For these strategies to be implemented, however, all States must achieve a baseline level of essential capabilities. At the same time, we must direct resources toward locations and facilities that are at higher levels of risk and vulnerability.

Both of these goals--helping each and every State come up to a minimum level of preparedness and targeting funds to those areas and facilities at greatest risk--require an adequate, steady, and predictable stream of Federal funding. Absent that stream, we find ourselves in an escalating argument over whether these resources are being allocated and spent properly.

Unfortunately, this argument increasingly pits our urban centers against our rural regions. We believe the bill that we have carefully crafted strikes the right balance.

Let me acknowledge the hard work of Senators Gregg and Byrd in putting together this appropriations bill. We share with them the goal of a fair formula for allocating funds to States while increasing the proportion of funds that would be distributed based on risk, but the problem is unpredictability. We ask States to prepare multiyear plans for improving their homeland security capabilities and yet each year we threaten to develop a new formula for distributing Homeland Security grant dollars. That is why in supporting our legislation, S 21, the National Governors Association underscored the need for the predictability that our amendment would provide.

On the chart behind me is a quotation from the Governor's letter. It reads as follows:

To effectively protect our states and territories from

potential terrorists events, all sectors of government must

be part of an integrated plan to prevent, deter, respond to

and recover from a terrorist act. For the plan to work, it is

essential that it be funded through a predictable and

sustainable mechanism both during its development, and in its

implementation. A minimum allocation to each state and

multiyear authorization levels of funding will provide the

predictability necessary to implement statewide plans that

will assist governors in securing our nation.

This is, after all, a partnership with first responders, with local governments, and with State governments.

Our amendment would provide the predictability States need to protect our Nation. First, our amendment authorized a sufficient level to reverse the trend of declining Homeland Security funding by authorizing the program at the fiscal year 2004 level of $2.9 billion. As the chart behind me demonstrates, funding for first responders is on the decline by $900 million from 2004 to the level proposed in the President's budget. We were reminded just last week that the war against terrorism has not been won. The battle continues. It is our first responders who are on the front lines. Do we truly believe that now, during a period of heightened alert, is the time to scale back our efforts in preventing and responding to terrorist attacks? I think not.

Our amendment also incorporates a balanced formula. Each State would be guaranteed a minimum allocation of .55 percent of the total funds appropriated for State and urban area grants. The minimum, however, is scaled so that States with larger populations and higher population densities would receive additional funds. We call this a sliding scale baseline. It will promote a level of preparedness and provide predictability. The remainder of the total funds would be distributed to States and regions based on the Secretary's determination of risk and threat.

As this chart shows, the amendment makes a grant investment in threat-based funding. It increases the proportion of risk-based funding by more than 60 percent. Moreover, under our sliding scale distribution using factors the Department of Homeland Security employs now in its risk-based approach, another 10.7 percent of appropriated funds would be allocated only to the most populous and most densely populated States.

These are important steps toward bridging that urban-rural divide, and they balance the need for predictability for bringing each State up to a minimum level of preparedness with a heightened emphasis on allocating funds based on threat, risk, and consequences.

As the ranking member on our committee well knows, since he has joined with me in all of these investigations, the choice must not be between protecting skyscrapers or farms and feedlots that provide our food supply, or chemical plants and industrial zones versus the rural communities that trucks and trains carrying those hazardous chemicals pass through. All funds beyond those necessary to cover the baseline allocations, more than 60 percent of the total, would be distributed based on the relative threat, vulnerability, and consequences faced by an area from a terrorist attack. From this funding pool, the Secretary would make threat-based grants to both States and metropolitan regions.

My colleague from Connecticut feels strongly about taking a regional approach to homeland security. In allocating the risk-based formula, the Secretary would prioritize grants with consideration given to such factors as population, population density, critical infrastructure, coastlines, international borders, previous terrorist attacks, elevated threat levels higher than the rest of the Nation, as well as other factors he deems appropriate.

While allowing judgment on the part of the Secretary, we specifically delineated some of the critical factors--the ones I just read--that the Department must take into account. In doing so, we take some of the mystery out of the black box from which DHS now seems to generate some of its funding decisions, decisions that result, for example, in Minneapolis receiving funding but not St. Paul.

One of the most disturbing aspects of the urban-rural argument is the assertion often made that locations outside of our largest cities have no significant homeland security needs. This is demonstrably untrue. It ignores a great deal of expertise. It ignores our history.

A recent study conducted by the Harvard School for Public Health, with coleadership by the Maine Department of Health and Human Services and participation by 26 States, shows that rural areas face unique and profound homeland security challenges. A great many power and water supplies as well as virtually our entire food supply are located outside of urban areas. Work our committee has done on agro-terrorism shows the potential threat to our food supply. In addition, rural areas have far less capacity to deal with a terrorist attack or a public health crisis.

In a letter describing its commercial equipment direct assistance program, the Department of Homeland Security itself wrote:

When they face the common threat of terrorism, the needs of

smaller jurisdictions are very different from the needs of

larger metropolitan areas. Smaller agencies confront threats

to the transportation infrastructure, agriculture, water

supplies, power grids and other critical items spread out

over a wide geographic area.

I will highlight the next statement because the events preceding September 11 show it is so true:

Terrorists may live and train in rural communities. Targets

such as pipelines and nuclear power plants are typically

located in smaller jurisdictions.

Indeed, among the most striking aspects of the report of the 9/11 Commission is the extent to which the terrorists did live, organize, and train in America's smaller communities. The contacts they had with smaller law enforcement agencies before the September 11 attacks are striking, as well.

As the committee reconstituted the movements of the terrorists after they arrived in the United States, the trail led to such places as Venice and Coral Springs, FL, Norman, OK, Falls Church, VA, Lawrenceville and Stone Mountain, GA and, of course, most personal to me, Portland, ME. It was Portland, ME from which two of the hijackers, including the ringleader, began their journey of death and destruction on September 11. It is not just the large cities that attract those who would do us harm. Indeed, often they feel more secure in hiding in our smaller cities and communities.

As we seek to ensure that our communities, large and small, are prepared to respond to a terrorist attack, we must not lose sight of the need for prevention. Our amendment ensures that the prevention of terrorist attacks, not just response efforts, receives a significant share of Homeland Security funds. This is an area that law enforcement groups tell us over and over again has been neglected.

Our amendment ensures that the prevention of terrorist attacks receives significant funds. It would for the first time authorize the Law Enforcement Terrorism Prevention Program which funds prevention activities by State and local law enforcement. Under the amendment, 25 percent of Homeland Security grant funding would be used for law enforcement terrorism prevention, including information sharing, target hardening, threat recognition, terrorist intervention activities, interoperable communication, and overtime expenses incurred in support of Federal homeland security efforts.

The International Association of Chiefs of Police recently released a report that put it very well. They warned:

In our national efforts to develop the capacity to respond

to and recover from a terrorist attack we have failed to

focus on the importance of building our capacity to prevent a

terrorist attack in the first place.

We are never going to be able to protect every single target in this country. That is why we have to pay attention to the prevention, the detection, the law enforcement side, as well as the response side.

Because of our bill's emphasis on terrorism prevention, it has been endorsed by the National Association of Police Organizations, the International Association of Chiefs Of Police, the International Union of Police Associations, the National Troopers Coalition, the United Federation of Police Officers, the International Brotherhood of Police Officers, the Fraternal Order of Police, and the National Organization of Black Law Enforcement Executives among others.

NAPO is the strongest voice supporting law enforcement officers in the United States, representing more than 236,000 sworn law enforcement officers as well as retired officers, and 100,000 citizens who share a common dedication to fair and effective crime control and law enforcement. They, too, have pointed out in a letter to Senator Lieberman and me that we need to be sure State and local law enforcement are properly supported, trained, and equipped to prevent terrorism before it occurs.

I do not believe we can allocate Homeland Security dollars effectively and efficiently unless we listen to and learn from the advice of our law enforcement officers and other first responders. Guided by a task force of first responders, the Secretary would establish the essential capabilities I referred to earlier to ensure that first responders have the support they need.

Preventing and responding to terrorism is a national challenge, but preventing and responding to specific acts of terrorism in the urgency of the moment is a regional challenge. We saw this after the September 11 attack on the Pentagon and in New York City when first responders from outlying communities rushed in to make invaluable and heroic contributions to the rescue operation.

We saw it again in simulation at the TOPOFF 3 exercise I observed earlier this year with Senator Lieberman. This incident was a simulated explosion and chemical attack at a waterfront festival in New London, CT. The contributions by first responders from the outlying smaller communities were enormous, but their efforts were hampered by a lack of interoperable communications equipment.

Senator Lieberman and I saw some first responders who were carrying as many as three emergency radios, which slowed the evacuation of those who were playing the injured parties to hospitals throughout the region. In a real attack, these delays--that incompatibility of equipment--would have had devastating consequences.

Regional planning and coordination are essential, and our amendment would shift the focus of local funding from individual cities to metropolitan regions. Unlike the current Urban Area Security Initiative under which DHS simply announces a list of cities it has selected to fund, our amendment would establish an application process for metropolitan region funding.

In applying for funding, communities would be given considerable flexibility in forming regions that would make the most sense locally. Our amendment provides that the regions within the 100 largest metropolitan statistical areas would automatically be eligible to apply, with additional regions eligible under certain circumstances.

Our amendment would also allow for regional coalitions--even those spanning multiple States--to apply for grant funding together to address common needs. I think this would lead to real breakthroughs in strategy.

Let me give you a concrete example. Several Midwestern States are joining together to take steps to prevent and, if necessary, respond to acts of agroterrorism. That is exactly the kind of project that our amendment would provide for and fund. Under current law, these States could not seek funds as a group despite the common threats they face and the common solutions they seek. Our amendment breaks out of this rigid mold to allow States, counties, cities, tribes, and other governmental units to think regionally and creatively as they seek to prevent and prepare for terrorist attacks.

Our amendment would also put the State and local homeland security planning process where it belongs, on the front end. This legislation requires State and local jurisdictions to plan for how funds will be spent before the funds arrive. Currently, much of the deliberative planning on how funds will be spent is done on the back end, only after DHS has allocated grants to States and urban areas.

Moreover--and this actually is another safeguard--our bill would require States to spend money according to State plans approved by the Department of Homeland Security. More advanced funding means funds will be spent more quickly and according to a coherent strategy.

Whenever I meet with first responders, whether it is in my home State of Maine or elsewhere, I am always struck by the fact that very few of these brave, dedicated men and women first went into law enforcement, firefighting, or emergency medical services ever thinking they would end up on the front lines of a war against terrorism. They have been handed an unprecedented and unimaginable challenge, and they have accepted it bravely and willingly. They deserve the equipment, training, planning, input, accountability, and stability that our amendment would provide. They deserve to have this critical program that is so essential to the security of our Nation properly authorized, funded, and designed.

Thank you, Mr. President.

Mr. President, I thank my friend and colleague from Connecticut for his excellent statement. We have worked very hard on this issue for the past 3 years. It is my hope that our colleagues will recognize the work that has gone into this measure, whether it is coming up with a fair and balanced--I guess that phrase maybe has weight toward it--carefully crafted formula or whether it is the accountability measures that are in the bill that I also believe are so important. Another member of our committee who has been a stalwart supporter of the bill and has worked very hard in shaping many of its provisions from his perspective as a former mayor of a major city is our colleague from Minnesota, Senator Coleman. I am very pleased he is here to speak on behalf of the bill.

Mr. President, I suggest the absence of a quorum.

Mr. President, I have listened intently to the remarks of the very distinguished Senator as the chairman of this appropriations subcommittee, and I have been very impressed by his remarks. But prior to that, over a long period of time I have been very impressed with his dedication to the service of the people he represents here and his dedication to the Nation. He is an extremely able chairman. He has experience in the executive field, as he has alluded to, and he has experience in the committee system. He is preeminently fair in his work on the subcommittee, very fair, always willing to listen, and most charitable, may I say, toward me.

I am the ranking member on the subcommittee and on the full committee. But I could never wish for anyone to be more fair, more knowledgeable, or anyone whom I would respect more than this man from the mountains of his

great State, and I have a tremendous admiration for him and a great deal of fondness for him. He is a chairman sui generis and a gentleman along with it. I like that part, too, especially.

Now, Mr. President, the distinguished chairman of the subcommittee has outlined the threat, and he has done so very well. I can't tell you how much I have admired the way he has striven to put together this bill and utilized the limited amount of moneys that are available to us and do it in a way that will reach those areas that are in most need of funding. I am immensely pleased with the work he has done. His work is the foremost work, of course. As the ranking member, I try to help. I do have a very able staff that works with the staff of the distinguished chairman, and it is through this staff that I am able to keep abreast of things and also to make my feelings known as well.

Mr. President, the Senate, then, has before it this bill for fiscal year 2006 Homeland Security appropriations. I cannot commend too much the distinguished chairman, as I have already indicated, and his staff, for their work on this legislation. I also commend the thousands of men and women who are on the front lines of America's homeland security. They serve the Nation every hour of every day.

I welcome Chairman Gregg to his new duties as chairman of the Homeland Security Subcommittee. He comes to it, needless to say, very well prepared. He has a wealth of experience, a wealth of expertise. The chairman targets limited resources--and I emphasize the word ``limited''--on future threats, not simply the threats posed by the attacks of September 11. For the most part, the chairman has attempted to allocate resources to those threats that represent the greatest risk to the American people. In doing so he has, with my support, included a number of improvements to the President's budget particularly with regard to border security, air cargo security, funds for States to implement the driver's license provisions of the REAL ID Act, as well as funding to protect the ``all-hazards'' Emergency Management Performance Grant Program.

The committee bill builds on the bipartisan border security initiative that I offered along with Senator Craig to the 2005 emergency supplemental. Between the emergency supplemental enacted in May and this bill Congress will have increased the number of Border Patrol agents by 1,500, provided funds to train and house these agents, increased the number of immigration investigators, the number of agents and detention officers by 817, and increased the number of detention beds by 4,190.

The chairman has to be commended for this, and I am profuse in my admiration and my support for what he has done.

In addition, the bill contains an important protection for the privacy rights of Americans. We need always to keep these rights in mind. I thank Chairman Gregg for his support of language that I recommended concerning secure flight, the Department's proposed new airline passenger profiling system. The language would prohibit the use of commercial databases for confirming the identity of airline passengers. Such commercial databases are unreliable and potentially invade people's privacy.

The bill before the Senate provides $30.8 billion for discretionary programs, an increase of 4.6 percent. This is a very lean bill. The committee was put in a difficult position as a result of the administration's proposal to have the Appropriations Committee increase the fees paid by airline passengers, a proposal that would have raised $1.68 billion. The Appropriations Committee does not have jurisdiction over airline fees and therefore could not approve the proposal. As a result, the committee was forced to reduce spending below the President's request by $389 million.

So the low subcommittee allocation and the fee proposal resulted in cuts in firefighter grants, first responder grants, rail and mass transit security grants, Coast Guard operations, and in the number of Transportation Security Administration screeners. These cuts are very unfortunate. It is regrettable that the administration's apparent lack of understanding of the legislative process will have such a direct impact on programs that are so important, that are important elements of our homeland security strategy.

As the Senate considers this bill, I hope the Senators will look favorably on amendments to restore the cuts in firefighter grants, first responder grants, and mass transit and rail security grants. The utterly tragic events in London last week remind all of us of the imminent threat--the imminent threat, may I say--to the American people that is posed by terrorist attacks here at home--here at home.

We have heard it said it is better to fight these terrorists in Iraq than it is to fight them in New York City or in Washington. Of course that is true. Nobody doubts that. But don't let anybody be fooled. Don't let anybody be fooled. Fighting them in Iraq is not going to make us secure from having to fight them here at home in Washington, New York, Tampa, FL--wherever. Don't fall for that malarkey. That is pure bunk. Of course we know what that is all about. But it has happened in London. It happened before that in Madrid, and before that in Japan, and it can happen here. No amount of argument, debate, or plain old malarkey should convince anyone that it can't happen here. In my judgment, it will. It is coming. These people take their time. They are patient. They are not in a big hurry. And it is coming here. It is coming here. The thing about it is these people know when and where and how the attack will be made. We do not. So they have the advantages.

Let's just put that bunk to the side; forget it for now. There is nothing to it. We are in jeopardy. The American people are in jeopardy and we ought to understand that. Last Thursday, when asked if additional funding was needed to secure our mass transit system, Secretary Chertoff said, ``I would not make a policy decision driven by a single event.''

I have a great deal of respect for the Secretary. He was down in my office just this morning, outlining something with respect to the surveys which he has been making and on which he intends to report publicly, and also outlining his plans for the agency. I must say he has a real grasp, a real feel of the full scope of the problems. I have to compliment him for that.

But with all due respect for the Secretary, the alarm bells just didn't start ringing last week. The alarm bells have been ringing for years. There have been 16 bombings worldwide linked to al-Qaida. The Senate should not be reducing our commitment to firefighters and first responders, or to securing our mass transit and rail system. I am pleased that the chairman has included my recommendation to direct the Department to expedite its grantmaking process. All too often--I made mention of this in a meeting with Secretary Chertoff in my office earlier today--all too often, funds that were approved by Congress last October will not be given to Federal, State, and local agencies until this September, nearly a full year later. Americans are not made safer by having funding for border security, port security, rail security, and for hiring firefighters sit--where? In the U.S. Treasury.

On June 13, almost a month ago, I wrote a letter to Secretary Chertoff, calling on him to focus on this problem as part of his review of agency operations. I will not ask now, but I will later, that that letter be made part of the Record.

Unfortunately, the Secretary has not seen fit to respond to my letter. That is not worthy of a great deal of comment, but it is worthy of some comment. I hope the Secretary's delay in responding is not indicative of the administration's intent to continue leaving homeland security dollars gathering dust in the Treasury in Washington, DC.

I said this to the Secretary this morning. I am particularly appalled that the $150 million that Congress approved last October for mass transit and rail security is still sitting in the Treasury. What in the world? Why in the world hasn't this money gone out? What is it doing sitting here in the Treasury? What in the world is wrong? I said it in just about that fashion--perhaps not quite that loudly this morning in my office, but I said it, nevertheless. I am appalled by this. What in the world are we waiting on? The Department did not even announce until April how rail and transit systems could apply for the funds, wasting

a full 6 months that the rail and transit systems could have used to prepare for or to prevent a future attack.

Time and time again, the administration has talked a good game on homeland security. Man, I will tell you, you just listen to the game they talk and you feel, ``I can sleep better tonight. I will go home now. I will watch the information about who is ahead in this game or that game--I will just forget about all this other stuff.'' But it has not followed through. The administration has not followed through with a sustained commitment of resources and ideas. So I fear the administration believes that it fulfills its commitment to securing the homeland by creating the Department of Homeland Security.

I voted against that, to start with, because I foresaw this. I don't claim to have great powers along these lines. But with all my experience--and I have had some. I have been around here quite a while, longer than anybody else on this Hill--anybody: Anybody sitting in the gallery, anybody out there in the offices, anybody downtown, or anybody else. I have been around here longer in this Government, yes, indeed. Well, so much for that. But that is some experience. I have had time to see some things and to lament some things. And I have been critical of both parties, both administrations, Democratic and Republican, over the years. So I think I have some basis for saying the things I am saying.

Mr. President, America is not made safer by simply reorganizing boxes on an organizational chart. Repeatedly, the energy, the initiative, the resources, and the leadership for homeland security efforts have come from--where? Guess where. From Congress, the people's branch.

In December of 2004, Congress authorized the hiring of 2,000 new Border Patrol agents per year for 5 years; the hiring of an additional 800 Immigration investigators per year for 5 years to enforce our immigration laws, and the funding of 8,000 new detention beds for the holding of illegal aliens. But despite statements by Secretary of State Rice and statements by former Homeland Security Deputy Secretary Loy that al-Qaida is a threat on our porous borders, there was virtually nothing in the President's budget to provide these additional resources for border security--virtually nothing.

The bill that is before the Senate today commits real resources to securing our border with regard to transit and rail security.

When terrorists blew up trains last year in Madrid, Spain, the administration had no plan for securing transit and rail systems. The horrific bombings last week in London have raised the same questions that we raised last year. Could it happen here? Are we prepared? According to the RAND Corporation, between 1998 and 2003, there were approximately--I don't know why we say approximately 181, but there were 181 terrorist attacks on rail targets worldwide. Get that: According to the Congressional Research Service, rail systems in the United States carry about five times--now, get that. According to the Congressional Research Service, passenger rail systems such as Amtrak in the United States carry about five times as many passengers each day as do airlines.

Since 2001 I have offered seven different amendments to fund rail and transit security and all of them, all seven, were opposed by the administration and defeated: seven times.

Remember Robert Bruce? He was lying up there in the loft of that barn and he had lost six times. He was about to give up until he saw that spider try to swing his web from this corner to that corner. He watched it six times and it failed. On the seventh time, lo and behold, that spider made it. So Robert Bruce decided he would try it one more time; seven times he tried it, he made it.

That number reminds me of that number seven again. Jacob liked Rachel and he spoke to the old man--I refer to her father as the old man-- about that beautiful daughter. The old man decided he would drive a bargain. He said, You can have her, but you work 7 years for her. So Jacob worked 7 years. At the end of the seventh year he went to say to the prospective father-in-law, How about it? Now I have worked my 7 years, I have carried out my part of the bargain, how about this nice girl you have? I have come to get her.

The old man said, No, not yet. You work 7 more. I will give you Leah, Rachel's sister. You can't have Rachel. The Bible says that Leah was weak eyed. So all to his disgust, consternation, and sorrow, old Jacob had to work 7 more years for Rachel.

Here we are talking about seven times. Since 2001 I have offered seven different amendments to fund rail and transit security and all seven, all of them, were opposed by the administration and defeated. Despite opposition from the administration, it was the Congress that created the Rail and Transit Security Grant Program that was first funded in fiscal year 2005, and that is funded in this bill today.

I call on the administration to explain to the American people why the $150 million that Congress appropriated last year has not been given to rail and transit agencies to invest in more cameras, more locks, more canine teams, more training. I ask the Senate to approve additional funding for such grants for fiscal year 2006. The $100 million included in the bill is $50 million below last year. It is $1.6 billion below the level authorized for 2006 in bills that passed the Senate last year.

While this administration has been focussing on the last attack carried out by hijackers, not one of whom was from Iraq, very little attention has been given to other vulnerabilities in aviation security. While the Transportation Security Administration examines 100 percent of checked baggage, most of the cargo that is stored in the same passenger aircraft and on cargo planes is not inspected. The threat of a bomb on an aircraft is not new. In 1988, 259 passengers aboard a Pan Am flight over Lockerbie, Scotland, perished when a terrorist-placed bomb exploded while the aircraft was 31,000 feet in the sky. Three and a half years ago, Richard Reid, the so-called shoe bomber, tried to blow up an aircraft in flight over the ocean with explosives he carried onto the aircraft.

Yet, for 3 straight fiscal years, it has been Congress, this body and the other body across the other end of the Capitol, that committed resources to address this problem. Since fiscal year 2004, Congress has added $85 million above the President's request to hire air cargo inspectors and to advance research of innovative technologies to detect explosives in air cargo.

What has the administration done with that funding? It has let $106 million sit in the Treasury. Six months after this fiscal year began, less than 12 percent of the funding appropriated for air cargo has been spent. I said this to the Secretary this morning. He will do better, he says. It is taking him a while to get his arms around this. I believe he will do better. Six months after this fiscal year began, less than 12 percent of the funding appropriated for air cargo has been spent. To make matters worse, the President's budget request for air cargo research and development in fiscal year 2006 was slashed in half.

The bill before the Senate continues the commitment to increasing the inspection of air cargo. I commend Chairman Gregg for that decision. Let me say it again: The bill before the Senate today, in this year of our Lord, this bill continues the commitment to increasing the inspection of air cargo. I commend Chairman Gregg for that decision.

When it comes to securing the Nation's chemical plant's--and I have lots of them down in the Kanawha Valley and Kanawha County, southern West Virginia when it comes to securing the Nation's chemical plants--I imagine we probably have maybe the second largest, if not the largest, concentration of chemical plants in the Northern Hemisphere right in Kanawha County or in West Virginia. When it comes to securing the Nation's chemical plants, the administration has been stuck in quicksand. We know the threat is real. The FBI has warned us about the threat. We know an attack at a chemical plant could cost millions of lives. The Environmental Protection Agency has reported that 123 chemical facilities, if attacked, could threaten the lives of millions of people. My staff person says it would threaten the lives of over 1 million people. That is a lot of people.

For years, the administration has dragged its feet on securing our chemical facilities. For years, many in the Senate have pressed the administration

to do more, to show leadership. In response to my request, the Government Accountability Office, the GAO--I don't much like that second most recent name, the Government Accountability Office--the old GAO recently released a report concluding that of the 15,000 chemical facilities in the country, only 1,100 have complied with voluntary security standards. It has been more than 2 years since the GAO urged the EPA and DHS to develop a comprehensive strategy for the protection of our chemical plants.

Last month, the administration finally changed direction on the need to provide security standards to the chemical industry. However, the administration has not yet proposed a specific plan or identified resources to implement such standards.

This bill before the Senate includes two important directives related to the protection of our chemical facilities. First, it requires the Department to provide the committee the estimates of the resources needed to implement mandatory security requirements for the Nation's chemical sector. Second, it directs the Department to begin vulnerability assessments of the Nation's highest risk chemical facilities. I look forward to the administration following through with a specific plan.

The bill before the Senate today includes $200 million for port security grants, $50 million above the amount provided in fiscal year 2005. Once again, the administration's request was woefully inadequate. It is the Congress that has taken the lead, the people's branch.

With the $200 million included in this bill, Congress will have funded $843 million for port security grants since September 11. How much has the administration requested over that time? Hear me, hear me now. How much money has the administration requested over that time? A measly little $46 million. Can you believe it? With the $200 million included in this bill, Congress will have funded $843 million for port security grants since September 11. How much has the administration requested over that time, I ask again? A measly $46 million.

To make matters worse, the fiscal year 2006 request by the White House included a proposal to have ports compete against other nonaviation modes of transportation by lumping them together in a limited pot of funding.

More than 9 million cargo containers enter U.S. ports annually but only 18 percent are inspected. All it takes is a dirty bomb stuffed into one of those 9 million containers to cripple our economy. The $150 million Congress approved last October is still sitting in the Treasury. Why this administration continues to ignore the threat facing our seaports is mind-boggling. We cannot afford to wait for the next attack.

For each of the threats I have discussed today, the bill that is before the Senate continues congressional initiatives to secure our homeland.

Again and again, and I don't get tired of saying it, I commend Senator Cochran, the first chairman of the Subcommittee on Homeland Security, for his leadership in 2003 and 2004. I again commend our new committee chairman, Senator Judd Gregg, for giving clear direction to the Department in the bill before the Senate. With the resources that have been made available to the committee, Chairman Gregg has produced a good bill. Regrettably, as a result of the President's proposal to increase airline passenger fees which the Appropriations Committee lacks the authority to approve, this bill does not have all of the resources it needs to meet known vulnerabilities. It is essential that the Department of Homeland Security be responsive, not bureaucratic, while the threat we face is massive, and it is clear our response to dealing with it is tepid and unfocused. It will take a commitment of energy, imagination, and, yes, more funding, to better secure our homeland. Again, I thank my chairman and the members of the staff on both sides for their excellent work and long hours, weekends, they have spent.

Mr. President, I referred to a letter which I had written to the Honorable Michael Chertoff, Secretary of the Department of Homeland Security, on June 13 of this year. I ask unanimous consent that letter be printed in the Record.

Mr. President, I will not object to the chairman's amendment. We need additional funds for the SAFER Firefighter Hiring Program. But this amendment leaves the program to equip and train firefighters $150 million below fiscal year 2005. Last year the Department received $2.76 billion of eligible applications and could only approve 25 percent of the applications. In response to this incredible demand for firefighting funds, the bill will cut firefighter equipment and training grants from $650 million to $500 million. So while I don't oppose the chairman's amendment, I put the Senate on notice that I will offer an amendment to restore the cuts in equipment and training for our firefighters. I hope the Senate will agree to the pending amendment.

No objection.

Mr. President, I rise to call up amendment No. 1215.

Thank you very much, Mr. President.

Mr. President, this amendment is offered on behalf of the Senator from Texas, Mr. Cornyn, and myself. It is identical to the Homeland Security FORWARD Funding Act of 2005. That is S. 1013.

I am very pleased to be joined not only by my colleague from Texas but, as well, by Senators Boxer, Hutchison, Kerry, Martinez, Schumer, Clinton, Corzine, Kennedy, Lautenberg, and Nelson of Florida. And, Mr. President, I ask unanimous consent to add Senator Mikulski to the list of cosponsors.

Mr. President, a great deal has been said about how homeland security dollars should be allocated. I think it is pretty clear that the American people, and certainly major opinionmakers such as major newspaper editorials, major mayors and major Governors, believe it is time our Nation adopt risk-based analysis to guide critical resource allocation of homeland security efforts.

This legislation will do exactly that. The Cornyn-Feinstein amendment is extremely simple in approach. Its key language, which appears at its beginning, is clear. Let me quote it:

The Secretary [of Homeland Security] shall ensure that

homeland security grants are allocated based on an assessment

of threat, vulnerability, and consequence to the maximum

extent practicable.

This legislation will ensure that these priorities are set, and set according to analysis of risk and threat.

This bill accomplishes this through five basic mechanisms.

First, the law requires the Secretary of the Department of Homeland Security to allocate grants based on risk. The legislation will mandate that funding decisions be designed according to an assessment of risk. This is a key element of the law, which makes this clear in its very first section, entitled ``Risk-Based Funding For Homeland Security,'' which reads--and I want to repeat it--

The Secretary [of Homeland Security] shall ensure that

covered grants are allocated based on an assessment of

threat, vulnerability, and consequence to the maximum extent

possible.

The bill defines ``covered grants'' as including the four major first responder grant programs administered by the Department of Homeland Security. That is: First, the State Homeland Security Grant Program; second, the Urban Area Security Initiative; third, the Law Enforcement Terrorism Prevention Program; and, fourth, the Citizens Corps Program.

In addition to these four core grant programs, the legislation also covers grants ``provided by the Department for improving homeland security,'' including grants for seaport and airport security.

The bottom line is that if Federal funds are going to be distributed to improve first responders' ability to ``prevent, prepare for, respond to, or mitigate threatened or actual terrorist attacks,'' those funds should be distributed in accordance with a risk-based analysis. Al- Qaida and its allies do not attack based on a formula. This bill rejects the formula approach in favor of a framework that is flexible and risk focused.

Second, the legislation requires that covered grants be designed to meet ``essential capabilities.'' ``Essential capabilities'' is a concept defined in this law. It is what we get for the money spent: The ability to meet the risk by reducing vulnerability to attack and diminishing the consequences by effective response.

Third, the bill requires States to quickly pass on Federal funds to where they are needed. States should not hold Federal funds back from where they are most needed. This bill will ensure that States quickly and effectively move the funds through to the location.

And, fourth, the bill addresses the small State minimum issue. The underlying bill requires each State to get .75 percent of the grant funding. Now, what does that mean? That means that 37.5 percent of the funds go on a formula basis to areas that might not have risk, threat, or vulnerability. For instance, under the current appropriations bill, of the $1.918 billion appropriated, $548 million is taken right off the top, allocated to States regardless of whether they are vulnerable, whether they have risk, or whether they have threat. Thus, that $548 million is not available to meet risk.

This legislation will significantly reduce this large set-aside. It will reduce it from 37.5 percent to the .25 percent. Now, I must admit I am uncomfortable even with the .25 percent minimum and would prefer to eliminate any impediment to risk-based funding. I believe it is the right thing to do. I would believe this regardless of what State I came from. We set up a huge Department of Homeland Security and have given them the basis and the ability to do the analyses that are required and the intelligence that has moved in to determine what is vulnerable, where it is, where the threats are, and what the risks are. And these are going to be ever changing. But I understand the realities of the Senate, so we decided to track what the President requested in his budget.

In this post-Cold-War world of asymmetric threat, there are two fundamental understandings which apply to efforts to make our Nation more secure against a terrorist attack.

The first understanding is that predicting what terrorists will do requires risk analysis. It is an uncomfortable fact that even with the best intelligence we will never know exactly how, when, and where terrorists will strike. The best we can do is to adequately assess risks and threats and make predictions.

The second understanding is that our defense resources are not infinite. The sum total of money, time, and personnel that can be devoted to homeland security is limited.

Together these two understandings define the task for our Nation: We must accurately assess the risks of an array of possible terrorist attacks, measure the vulnerability of all of these possible targets, and then divide up resources based on that assessment,

not based on some arbitrary formula that will exist regardless of what kind of threat or vulnerability may emerge in the future.

The 9/11 Commission agrees with us, finding that ``nothing has been harder for officials--executive or legislative--than to set priorities, making hard choices in allocating limited resources.'' The Commission concluded:

Homeland security assistance should be based strictly on an

assessment of risks and vulnerabilities.

The Cornyn-Feinstein amendment is the only amendment that clearly does what the 9/11 Commission has recommended.

The New York Times has agreed. In an editorial entitled ``Real Security, or Politics as Usual?'' the Times wrote:

Defending places where the terrorist threat is greatest is

not parochialism; it is defending America.

We think that last week's tragic events in London underscore the point. The effectiveness of the British first response to these terrible attacks illustrates that they put their resources where the risks were: In London, not in some remote community, but where they knew the terrorists were most likely to attack.

Despite all recommendations, we find again and again that scarce resources are allocated based on factors unrelated to real security. For instance, a small State minimum in the Collins amendment is designed to ensure that every State gets a substantial portion of scarce resources, regardless of the measure of risk or vulnerability. As a result, a State such as Wyoming gets $27.80 per capita in funding, while New York and California get $15.54 and $8.05, respectively.

The problem is not just in Congress. For example, a recent Department of Homeland Security inspector general report found that in the critical area of port security, grants are ``not well coordinated with the Information Analysis and Infrastructure Protection.'' The result: ``funding of projects with low [risk and vulnerability] scores.''

Now, this is the IG of Homeland Security who is saying projects with low risk and vulnerability scores are currently being funded. Frankly and candidly, that is just plain wrong. It is a waste of money, and I think, to an extent, it enables--well, it really is a kind of deception because unless you can put your money where the intelligence indicates and the assessments indicate there is threat and risk, you are not protecting America.

A recently issued joint report from the Center for Security Studies and the Heritage Foundation found that there is:

no funding formula that is based on risk analysis and

divorces from politics . . . [w]ith only limited resources

available to achieve the almost limitless goal of protecting

the entire United States . . . it is critical that we set

priorities.

That is what we are trying to do here. This amendment, and the bill upon which it is based, builds on efforts last year by Representatives Cox and Turner, the chair and ranking member respectively of the other body's Homeland Security Committee. That effort passed the House of Representatives as part of the intelligence reform bill but was dropped at conference. Our amendment is similar to this House bill.

I understand and appreciate the efforts made by Senators Collins and Lieberman to craft the bill now before us. I applaud their leadership in this area. The Collins-Lieberman bill, while it purports to be risk based, is actually not. It incorporates complex formulae with a preordained list of factors which approximate what is believed to be the risk. Candidly, I don't think that works for the following reasons.

First, the key to responding to al-Qaida and similar organizations is flexibility. It is not a frozen formula. Al-Qaida doesn't make decisions based on formula. While today it may seem obvious that mass transit or ports are obvious targets, tomorrow they may not be. Hopefully our intelligence community will be increasingly able to ferret out our terrorist adversaries and our analysts will be better at understanding and predicting their behavior. What are today's targets could change and change yet again. Building a formula mechanism based on our best guess about what al-Qaida will do is simply not good policy.

Secondly, we created the Department of Homeland Security primarily to do exactly what this legislation calls for. The first mission statement for the Department stated:

[The Department will] identify and understand threats,

assess vulnerabilities, determine potential impacts, and

disseminate timely information to our homeland security

partners and the American public.

This is what the Department is supposed to do. It cannot be done by arbitrary formula. It can only be done listening to intelligence analysts, engaging in flexible interpretation, and being willing to move the money where the risks show up to be. That is important to do, and it should be important whether you are from a small State, a middle-sized State, or a large State. The money should go where the problems are.

This is exactly what President Bush said in announcing the creation of the Department. He stated:

This new department will bring together the best

intelligence information about our vulnerabilities to

terrorist attack so that we can act quickly to protect

America.

He didn't talk about an arbitrary formula. He said, the Department will bring together the best intelligence information so that flexibility becomes the watchword of the day, and money can go where it is truly needed.

Senator Lieberman was a leader in this effort, and we all worked with him to create the Department of Homeland Security. In my view, the biggest selling point for this new Department was, as the President said, that for the first time, we would have a place in the Government that would map threats against vulnerability and thus allocate our defenses in an effective, efficient way. The Department of Homeland Security can be seen as a department of risk analysis. That is what it should be doing. So it is ironic that having provided the authority and responsibility to do this, the Congress then handcuffs the Secretary by restricting these resources based on geography, politics, and parochial interests. Let's let the Secretary do the job we gave him.

Third, in addition to creating the Department of Homeland Security, the Congress, again with the leadership of Senators Collins and Lieberman, reorganized the intelligence community. The purpose of this task was to ensure that the most important ingredient in risk analysis--good intelligence--was enough to keep America safe. So there is an irony that having gone to such trouble to improve the intelligence community, we are prepared to pass legislation which for a large percentage of funds will make intelligence irrelevant. All they need is a map, a census, and a list of important places in each State. That makes no sense to me.

I mentioned the difference in funding levels and amounts subject to risk. Last week the Congressional Research Service issued an analysis of the underlying appropriations bill, the Collins amendment, and the Cornyn-Feinstein amendment. The results are startling. If we assume that the base amount of Homeland Security grant funding contained in the appropriations bill becomes law, that means the total amount available for these programs will be $1.918 billion. The underlying bill would allocate a considerable amount under the existing small State minimum framework, $579.2 million, leaving $1.3 billion to be allocated through a risk assessment process.

If the Collins-Lieberman amendment is adopted, $762 million will be allocated according to the formula--not based on risk, not based on threat, not based on risk analysis, not based on vulnerability, but simply on population and geographical distribution. That leaves even less to be allocated based on risk, only $1.155 billion. In other words, the Collins-Lieberman amendment reduces the risk-based funding in the underlying bill by nearly $150 million. If this amendment is adopted, only $251.2 million will be allocated based on the .25 small State minimum, leaving $1.66 billion for risk-based allocation.

Here is the bottom line: Put another way, under the underlying bill, only 70 percent of available funds are allocated based on risk. If the Collins-Lieberman approach is adopted, that drops to 60 percent; under the approach embodied in Cornyn-Feinstein, 87 percent of funding to risk. So between the two amendments, our amendment, 87 percent of funding to risk, Collins-

Lieberman, 60 percent, and the underlying bill, 70 percent. The choice is clear.

What is the bottom line? The bottom line is, our Nation faces danger. We have a limited amount of resources available to defend ourselves. Those resources must and should be targeted. They should be targeted to where they can do the most good and where the risk actually is. That is the simple question which faces us today. How can we best protect our country? I believe the best way to protect America is to let the Secretary of Homeland Security do the job we appointed him to do: match resources to risk, using the best available intelligence analysis. That is the only way to safety. That is the only way to reassure our people, should there be a catastrophic event, that we have put the money in the right places. Any arbitrary formula doesn't do this.

I ask unanimous consent to print in the Record a letter from the High Threat Joint Working Group on Homeland Security. This is a group of large cities that has banded together. The letter is in support of our amendment. It is the city of Anaheim in California; city of Baltimore in Maryland; city of Baton Rouge in Louisiana; city of Boston in Massachusetts; the city of Charlotte in North Carolina; the city of Chicago in Illinois; the city of Cleveland in Ohio; the city of Columbus in Ohio; the city of Dallas in Texas; Jacksonville in Florida; the city of Kansas City, MO; the city of Long Beach, CA; Los Angeles, CA; Miami, FL; New York in New York; Newark in New Jersey; Oakland in California; Philadelphia in Pennsylvania; city of San Diego in California; the city of San Francisco in California; the city of San Jose in California; and the city of Santa Ana.

I also ask unanimous consent to print in the Record a letter addressed to Senator Cornyn and me, signed by Governor Rick Perry of Texas and Governor Arnold Schwarzenegger of California. What they ask is that we follow the 9/11 Commission report recommendation to better allocate Federal resources based on vulnerability.

Mr. President, I ask unanimous consent that a letter from the mayor of San Francisco, Gavin Newsom, be printed in the Record.

I ask unanimous consent that a letter from Mayor Richard Daley of Chicago be printed in the Record.

I ask unanimous consent that a letter from the League of California Cities be printed in the Record.

I ask unanimous consent that a letter from Laura Miller, the mayor of Dallas, TX, be printed in the Record.

I ask unanimous consent that a letter from the mayor of Long Beach, CA, Beverly O'Neill, be printed in the Record.

All these letters are in support of this amendment which earmarks money based on intelligence analysis of risk and threat.

I reserve the remainder of my time.

That is correct.

Mr. President, if I may respond.

I thank the Senator for her courtesy. It is my understanding we have 45 minutes this afternoon at 2:15 and Senator Cornyn will lead off at 2:15. I thank the Senator.

I yield such time as he may consume to the Senator from New Jersey.

Mr. President, how much do I have remaining this morning?

I yield, then, to the Senator from New Jersey.

How much time do I have remaining?

I will use the time, if I might, then. The distinguished chairman of Homeland Security and Governmental Affairs mentioned something which affected me a little bit, and I would like to respond to it respectfully, that our amendment was cobbled together on the Senate floor. I point out that our amendment was introduced as a bill on May 12. I also point out that prior to that we worked on this amendment for at least 6 months with high-risk areas, with cities, with States, and with law enforcement.

This amendment is born in the belief that just as terrorists in Great Britain did not go to Stratford-on-Avon, they went to London; just as 9/11 did not take place in Milpitas, CA, it took place in the financial center of America; and just as the bombers in Spain did not go to a rural Spanish community, they went to Madrid.

Now, I can only use my experience as a member of the Intelligence Committee to say whether it is advisable to have a fixed formula or advisable to give those people who have access to all of the intelligence--intelligence from CIA, intelligence from counterterrorism people, intelligence from the FBI, and all of those who do the risk analysis, whether they should have the flexibility to determine where the moneys go. From my perspective, that is the way to go. From my perspective, America is best protected if we give the people with the knowledge and the intelligence the maximum flexibility to allocate funds based on quality of grants to areas that are likely targets. Nothing can change my mind on this. If you review intelligence, you get an idea of what might be a target and what is not a target.

That is just today. It could change in 6 months. It could change in 2 years. There are many of us who believe we are in this war, this asymmetric, terrible, non-state-actor war, for a long period of time. For me, just as you would give the Joint Chiefs of Staff the ability to mount a battle plan, I think we should give Homeland Security the ability to mount the risk analysis that enables the distribution of grants in the most effective way.

We have tried to do this in our bill. The underlying bill has 70 percent of the funds based on risk; the Collins-Lieberman amendment, 60 percent on risk; and Feinstein-Cornyn, 87.5 percent on risk.

The choice is clear. People who believe differently will vote differently. There is always a question because we know the composition of this body, we know the number of small States, and we know the likelihood that people are going to vote their State. I say to them, whether they do the best thing, if something happens and people look back as to how the money was allocated, I would much prefer to be able to say that the best experts we have have made the decisions on the allocation of funds, rather than that I would doing it on any other basis, whether that basis is population, whether it is geography, whether it is based on whether you produce food or whether you produce high tech or anything else. The money must go where the threat and risk is, the money must go where the vulnerabilities in the eyes of the terrorists are, and no formula can know where those vulnerabilities are.

I yield the floor.

If I might say, Mr. President, I have great admiration for the Senator from Maine in the way she has conducted herself and the leadership she has shown.

Mr. President, I want to thank the Senator from Washington for raising this issue again. Before the Fourth of July recess, the Senate passed this amendment 96 to 0 showing this body's united commitment to our Nation's veterans.

We worked hard with our colleagues across the aisle to ensure that the Veterans' Administration's shortfall in Fiscal Year 2005 was addressed by passing a $1.5 billion emergency supplemental.

I was disappointed that the House of Representatives did not follow our lead and instead passed a nonemergency $975 million supplemental appropriations.

I understand that the administration will be submitting a Budget amendment, shortly to address the Fiscal Year 2006 needs of the Veterans' Administration and I look forward to working with Chairman Hutchison to ensure that adequate resources are available for veterans health care next year.

In the meantime, I would urge my colleagues to support the Murray amendment which addresses this year's shortfall and reaffirms our commitment to our veterans.