Risk-Based Homeland Security Funding Act

Mr. President, I am pleased to reintroduce legislation today that would increase the mileage reimbursement rate for volunteers.

Under current law, when volunteers use their cars for charitable purposes, the volunteers may be reimbursed up to 14 cents per mile for their donated services without triggering a tax consequence for either the organization or the volunteers. If the charitable organization reimburses any more than that, they are required to file an information return indicating the amount, and the volunteers must include the amount over 14 cents per mile in their taxable income. By contrast, the mileage reimbursement level currently permitted for businesses is 40.5 cents per mile.

We are asking volunteers and volunteer organizations to bear a greater burden of delivering essential services. But the 14 cents per mile limit is posing a very real hardship for charitable organizations and other nonprofit groups. I have heard from a number of people in Wisconsin on the need to increase this reimbursement limit.

A representative of one organization, the Portage County Department on Aging, explained just how important volunteer drivers are to their ability to provide services to seniors in that county. The Department on Aging reported that dozens of volunteer drivers delivered meals to homes and transported people to medical appointments, meal sites, and other essential services.

As many of my colleagues know, the senior meals program is one of the most vital services provided under the Older Americans Act, and ensuring that meals can be delivered to seniors or that seniors can be taken to meal sites is an essential part of that program. Unfortunately, Federal support for the senior nutrition programs has stagnated in recent years. This has increased pressure on local programs to leverage more volunteer services to make up for lagging Federal support. The 14 cents per mile reimbursement limit, though, increasingly poses a barrier to obtaining those contributions. Portage County reports that many of their volunteers cannot afford to offer their services under such a restriction. And if volunteers cannot be found, their services will have to be replaced by contracting with a provider, greatly increasing costs to the Department, costs that come directly out of the pot of funds available to pay for meals and other services.

And the same is true for thousands of other non-profit and charitable organizations that provide essential services to communities across our Nation.

By contrast, businesses do not face this restrictive mileage reimbursement limit. The comparable mileage rate for someone who works for a business is currently 40.5 cents per mile. This disparity means that a business hired to deliver the same meals delivered by

volunteers for Portage County may reimburse their employees over double the amount permitted the volunteer without a tax consequence.

This doesn't make sense. The 14 cents per mile volunteer reimbursement limit is badly outdated. According to the Congressional Research Service, Congress first set a reimbursement rate of 12 cents per mile as part of the Deficit Reduction Act of 1984, and did not increase it until 1997, when the level was raised slightly, to 14 cents per mile, as part of the Taxpayer Relief Act of 1997.

The bill I am introducing today is identical to a measure I introduced in the 107th Congress and the 108th Congress in nearly every respect. It raises the limit on volunteer mileage reimbursement to the level permitted to businesses. It is essentially the same provision passed by the Senate as part of a tax bill in 1999, and it is essentially the same provision that passed the Senate as part of the CARE Act.

At the time of the 1999 tax bill, the Joint Committee on Taxation (JCT) estimated that the mileage reimbursement provision would result in the loss of $1 million over the five-year fiscal period from 1999 to 2004. The revenue loss was so small that the JCT did not make the estimate on a year by year basis.

Though the revenue loss is small, it is vital that we do everything we can to move toward a balanced budget, and to that end I have included a provision to fully offset the cost of the measure and make it deficit neutral. That provision increases the criminal monetary penalties for individuals and corporations convicted of tax fraud. The provision passed the Senate in the 108th Congress as part of the JOBS bill, but was later dropped in conference and was not included in the final version of that bill.

I urge my colleagues to support this measure. It will help ensure charitable organizations can continue to attract the volunteers that play such a critical role in helping to deliver services and it will simplify the tax code both for nonprofit groups and the volunteers themselves.

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

Mr. President, today I will reintroduce in the Senate the Reasonable Notice and Search Act. This bill is nearly identical to a bill I introduced in the 108th Congress, S. 1701. It addresses Section 213 of the USA-PATRIOT Act, the provision of that important statute passed in the wake of the 9/11 attacks that has caused perhaps the most concern among Members of Congress and the public. Section 213, sometimes referred to as the ``delayed notice search provision'' or the ``sneak and peek provision,'' authorizes the government in limited circumstances to conduct a search without immediately serving a search warrant on the owner or occupant of the premises that have been searched.

Prior to the PATRIOT Act, secret searches for physical evidence were performed in some jurisdictions under the authority of Court of Appeals decisions, but the Supreme Court never definitively ruled whether they were constitutional. Section 213 of the PATRIOT Act authorized delayed notice warrants in any case in which an ``adverse result'' would occur if the warrant were served before the search was executed. Adverse result was defined as including: 1. endangering the life or physical safety of an individual; 2. flight from prosecution; 3. destruction of or tampering with evidence; 4. intimidation of potential witnesses; or 5. otherwise seriously jeopardizing an investigation or unduly delaying a trial. This last catch-all category could apply in virtually any criminal case. In addition, while some courts had required the service of the warrant within a specified period of time, the PATRIOT Act simply required that the warrant specify that it would be served within a ``reasonable'' period of time after the search.

It is interesting to note that this provision of the PATRIOT Act was not limited to terrorism cases. In fact, before the PATRIOT Act passed, the FBI already had the authority to conduct secret searches of foreign terrorists and spies with no notice at all under the Foreign Intelligence Surveillance Act. Furthermore, the PATRIOT Act ``sneak and peek'' authority was not made subject to the sunset provision that will cause many of the new surveillance provisions of the act to expire at the end of this year unless Congress reenacts them. So Section 213 was pretty clearly a provision that the Department of Justice wanted regardless of the terrorism threat after 9/11.

Perhaps that is why this provision has caused such controversy since it was passed. In 2003, by a wide bipartisan margin, the House passed an amendment to the Commerce-Justice-

State appropriations bill offered by Representative Otter from Idaho, a Republican, to stop funding for delayed notice searches authorized under section 213. The size of the vote took the Department by surprise, and it immediately set out to defend the provision aggressively. Clearly, this is a power that the Department does not want to lose.

I raised concerns about the sneak and peek provision when it was included in the PATRIOT Act. I did not, and still do not, believe there had been adequate study and analysis of the justifications for these searches and the potential safeguards that might be included. I did not argue then, however, and I am not arguing now that there should be no delayed notice searches at all and that the provision should be repealed. I simply believe that this provision should be modified to protect against abuse. My bill will do four things to accomplish this.

First, my bill would narrow the circumstances in which a delayed notice warrant can be granted to the following: potential loss of life, flight from prosecution, destruction or tampering with evidence, or intimidation of potential witnesses. The ``catch-all provision'' in section 213, allowing a secret search when serving the warrant would ``seriously jeopardize an investigation or unduly delay a trial'' can too easily be turned into permission to do these searches whenever the government wants.

Second, I believe that any delayed notice warrant should provide for a specific and limited time period within which notice must be given--7 days. This is consistent with some of the pre-PATRIOT Act court decisions and will help to bring this provision in closer accord with the Fourth Amendment to the Constitution. Under my bill, prosecutors will be permitted to seek 7-day extensions if circumstances continue to warrant that the subject not be made aware of the search. But the default should be a week, unless a court is convinced that more time should be permitted.

Third, Section 213 should include a sunset provision so that it expires along with the other expanded surveillance provisions in Title II of the PATRIOT Act, at the end of 2005. This will allow Congress to determine if the balance between civil liberties and law enforcement has been correctly struck.

Finally, the bill requires a public report on the number of times that section 213 is used, the number of times that extensions are sought beyond the 7-day notice period, and the type of crimes being investigated with this power. This information will help the public and Congress evaluate the need for this authority and determine whether it should be retained or modified after the sunset.

These are reasonable and moderate changes to the law. They do not gut the provision. Rather, they recognize the growing and legitimate concern from across the political spectrum that this provision was passed in haste and presents the potential for abuse. They also send a message that Fourth Amendment rights have meaning and potential violations of those rights should be minimized if at all possible. I urge my colleagues to support this bill.

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

Mr. President, today I will reintroduce the Library, Bookseller, and Personal Records Privacy Act. The bill is identical to the bill I introduced in the 108th Congress, S. 1507.

This bill would amend Sections 215 and 505 of the USA-PATRIOT Act to protect the privacy of law-abiding Americans. It would set reasonable limits on the Federal Government's access to library, bookseller, medical, and other sensitive, personal information under the Foreign Intelligence Surveillance Act (``FISA'') and related foreign intelligence authority.

I am pleased that several of my distinguished colleagues have joined me as original cosponsors of this important legislation.

Millions of Patriotic Americans love our country and support our military men and women in their difficult missions abroad, but worry about the fate of our Constitution here at home.

Much of our Nation's strength comes from our constitutional liberties and respect for the rule of law. That is what has kept us free for our two and a quarter century history. Our constitutional freedoms, our American values, are what make our country worth fighting for as we strive to win the war on terror.

Here at home, there is no question that the FBI needs ample resources and legal authority to prevent future acts of terrorism. But the PATRIOT Act went too far when it comes to the government's access to personal information about law abiding Americans.

Even though in the end I opposed the PATRIOT Act, there were many provisions that I did support. And even in those provisions I sought to amend when the bill was debated, there was often some change that I supported. For example, Congress was right to expand the category of business records that the FBI could obtain pursuant to the Foreign Intelligence Surveillance Act. Prior to the PATRIOT Act, the FBI could seek a court order to obtain only travel records--such as airline, hotel, and car rental records--and records maintained by storage facilities. The PATRIOT Act allows any business records to be subpoenaed. I don't quibble with that change.

But what my colleagues and I do find problematic--and an increasing number of Americans who value their privacy and First Amendment rights agree with us--is that the current law allows the FBI broad, almost unfettered access to personal information

about law-abiding Americans who have no connection to terrorism or spying.

Section 215 of the PATRIOT Act requires the FBI to show in an application to the court that the documents are ``sought for'' an international terrorism or foreign intelligence investigation. There is no requirement that the FBI make a showing of individualized suspicion that the documents relate to a suspected terrorist or spy.

In other words, under current law, the FBI could serve a subpoena on a library for all the borrowing records of its patrons or on a bookseller for the purchasing records of its customers simply by asserting that they want the records for a terrorism investigation.

Since the passage of the PATRIOT Act, librarians and booksellers have become increasingly concerned by the potential for abuse of this law. I was pleased to stand with the American Booksellers Association and the Free Expression Network over 2 years ago when we first started to raise these concerns.

Librarians and booksellers are concerned that under the PATRIOT Act, the FBI could seize records from libraries and booksellers in order to monitor what books Americans have purchased or borrowed, or who has used a library's or bookstore's internet computer stations, even if there is no evidence that the person is a terrorist or spy, or has any connection to a terrorist or spy.

These concerns are so strong that some librarians across the country have taken the unusual step of destroying records of patrons' book and computer use, as well as posting signs on computer stations warning patrons that whatever they read or access on the internet could be monitored by the federal government.

As a librarian in California said, ``We felt strongly that this had to be done. . . . The government has never had this kind of power before. It feels like Big Brother.''

And as the executive director of the American Library Association said, ``This law is dangerous. . . . I read murder mysteries--does that make me a murderer? I read spy stories--does that mean I'm a spy? There's no clear link between a person's intellectual pursuits and their actions.''

The American people do not know how many or what kind of requests Federal agents have made for library records under the PATRIOT Act. The Justice Department refuses to release that information to the public.

But in a survey released by the University of Illinois at Urbana- Champaign, about 550 libraries around the Nation reported having received requests from Federal or local law enforcement during the past year. About half of the libraries said they complied with the law enforcement request, and another half indicated that they had not.

Americans don't know much about these incidents, because the law also contains a provision that prohibits anyone who receives a subpoena from disclosing that fact to anyone.

In testimony before the Judiciary Committee, Attorney General Ashcroft stated that as of September 18, 2003, the Department of Justice had never used Section 215. The Department has not made that claim in public testimony since then, leading many to speculate that the provision has now been used. Whether it has been used once, or dozens of times, the problem with the section remains--it is too broad and does not permit adequate judicial supervision. There is a potential for overreaching that Congress must address.

David Schwartz, president of Harry W. Schwartz Bookshops, the oldest and largest independent bookseller in Milwaukee, summed up well the American values at stake when he said: ``The FBI already has significant subpoena powers to obtain records. There is no need for the government to invade a person's privacy in this way. This is a uniquely un-American tool, and it should be rejected. The books we read are a very private part of our lives. People could stop buying books, and they could be terrified into silence.''

I would not claim that we have reached the point where people in this country are afraid to buy books, but section 215 is a tool that is unnecessarily broad. And it raises the specter of indiscriminate government snooping into the private lives of innocent citizens, which is an unnecessary distraction from the serious law enforcement work that is needed to fight terrorism.

It is time to reconsider those provisions of the PATRIOT Act that are un-American and, frankly, unpatriotic.

But my concerns with the PATRIOT Act go beyond library and bookseller records. Under section 215 of the PATRIOT Act, the FBI could seek any records maintained by a business. These business records could contain sensitive, personal information--for example, medical records maintained by a doctor or hospital or credit records maintained by a credit agency. All the FBI would have to do is simply assert that the records are ``sought for'' its terrorism or foreign intelligence investigation.

Section 215 of the PATRIOT Act goes too far. Americans rightfully have a reasonable expectation of privacy in their library, bookstore, medical, financial, or other records containing personal information. Prudent safeguards are needed to protect these legitimate privacy interests.

The Library, Bookseller, and Personal Records Privacy Act is a reasonable solution. It would restore a pre-PATRIOT Act requirement that the FBI make a factual, individualized showing that the records sought pertain to a suspected terrorist or spy while leaving in place other PATRIOT Act expansions of this business records power.

My bill will not prevent the FBI from doing its job. It recognizes that the post-September 11 world is a different world. There are circumstances when the FBI should legitimately have access to library, bookseller, or other personal information.

I'd like to take a moment to explain how the safeguard in my bill would be applied. Suppose the FBI is conducting an investigation of an international terrorist organization. It has information that suspected members of the group live in a particular neighborhood. The FBI would like to obtain records from the library in the suspects' neighborhood. Under current law, the FBI could decide to ask the library for all records concerning anyone who has ever borrowed a book or used a computer, and what books were borrowed, simply by asserting that the documents are sought for a terrorism investigation. But under my bill, the FBI could not do so. The FBI would have to set forth specific and articulable facts giving reason to believe that the person to whom the records pertain is a suspected terrorist. The FBI could obtain only those library records--such as borrowing records or computer sign-in logs--that pertain to the suspected terrorists. The FBI could not obtain library records concerning individuals who are not suspected terrorists.

So, under my bill, the FBI can still obtain documents that it legitimately needs, but my bill would also protect the privacy of law- abiding Americans. I might add that if, as the Justice Department says, the FBI is using its PATRIOT Act powers in a responsible manner, does not seek the records of law-abiding Americans, and only seeks the records of suspected terrorists or suspected spies, then there is no reason for the Department to object to my bill.

The second part of my bill would address privacy concerns with another Federal law enforcement power expanded by the PATRIOT Act--the FBI's national security letter authority. The FBI does not need court approval to use this power.

My bill would amend section 505 of the PATRIOT Act. Part of this section relates to the production of records maintained by electronic communications providers. Libraries or bookstores with internet access for customers could be deemed ``electronic communication providers'' and therefore be subject to a request by the FBI under its NSL authority.

As I mentioned earlier, some librarians are so concerned about the potential for abuse by the FBI that they have taken matters into their own hands before the FBI knocks on their door. Some librarians have begun shredding on a daily basis sign-in logs and other documents relating to the public's use of library computer terminals to access the internet.

Again, safeguards are needed to ensure that any individual who accesses the internet at a library or bookstore does not automatically give up all expectations of privacy. Like the section

215 fix I've discussed, my bill would require an individualized showing by the FBI of how the records of internet usage maintained by a library or bookseller pertain to a suspected terrorist or spy.

Yes, the American people want the FBI to be focused on preventing terrorism. And, yes, it may make sense to make some changes to the law to allow the FBI access to the information that it needs to prevent terrorism. But we do not need to change the values that constitute who we are as a Nation in order to protect ourselves from terrorism. We can protect both our Nation and our privacy and civil liberties.

An increasing number of Americans are beginning to understand that the PATRIOT Act went too far. Four States and over 350 cities and counties across the country have now passed resolutions expressing opposition to the PATRIOT Act. And it's not just the Berkeleys and Madisons of this Nation, but other States and communities with strong conservative and libertarian values, such as Alaska and cities in Montana, that have passed such resolutions.

I have many concerns with the PATRIOT Act. I am not seeking to repeal it, in whole or in part. In this bill, my colleagues and I are only seeking to modify two provisions that pose serious potential for abuse.

The privacy of law-abiding Americans is at stake, along with their confidence in their government. Congress should act to protect our privacy and reassure our citizens. The Library, Bookseller, and Personal Records Privacy Act bill is a reasonable approach to do just that. I urge my colleagues to support this legislation.

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

Mr. President, I am pleased to introduce the Computer Trespass Clarification Act of 2005, which would amend and clarify section 217 of the USA-PATRIOT Act. This bill is virtually identical to a bill I introduced in the 108th Congress, S. 2783.

Section 217 of the PATRIOT Act addresses the interception of computer trespass communications. This bill would modify existing law to more accurately reflect the intent of the provision, and also protect against invasions of privacy.

Section 217 was designed to permit law enforcement to assist computer owners who are subject to denial of service attacks or other episodes of hacking. The original Department of Justice draft of the bill that later became the PATRIOT Act included this provision. A section by section analysis provided by the Department on September 19, 2001, stated the following: ``Current law may not allow victims of computer trespassing to request law enforcement assistance in monitoring unauthorized attacks as they occur. Because service providers often lack the expertise, equipment, or financial resources required to monitor attacks themselves as permitted under current law, they often have no way to exercise their rights to protect themselves from unauthorized attackers. Moreover, such attackers can target critical infrastructures and engage in cyberterrorism. To correct this problem, and help to protect national security, the proposed amendments to the wiretap statute would allow victims of computer attacks to authorize persons `acting under color of law' to monitor trespassers on their computer systems in a narrow class of cases.''

I strongly supported the goal of giving computer system owners the ability to call in law enforcement to help defend themselves against hacking. Including such a provision in the PATRIOT Act made a lot of sense. Unfortunately, the drafters of the provision made it much broader than necessary, and refused to amend it at the time we debated the bill in 2001. As a result, the law now gives the government the authority to intercept communications by people using computers owned by others as long as they have engaged in some unauthorized activity on the computer, and the owner gives permission for the computer to be monitored--all without judicial approval.

Only people who have a ``contractual relationship'' with the owner allowing the use of a computer are exempt from the definition of a computer trespasser under section 217 of the PATRIOT Act. Many people-- for example, college students, patrons of libraries, Internet cafes or airport business lounges, and guests at hotels--use computers owned by others with permission, but without a contractual relationship. They could end up being the subject of government snooping if the owner of the computer gives permission to law enforcement.

My bill would clarify that a computer trespasser is not someone who has permission to use a computer by the owner or operator of that computer. It would bring the existing computer trespass provision in line with the purpose of section 217 as expressed in the Department of Justice's initial explanation of the provision. Section 217 was intended to target only a narrow class of people: Unauthorized

cyberhackers. It was not intended to give the government the opportunity to engage in widespread surveillance of computer users without a warrant.

I should note that there is no specific evidence that the provision is being abused. But, of course, unless criminal charges are brought against someone as a result of such surveillance, there would never be any notice at all that the surveillance has taken place. The computer owner authorizes the surveillance, and the FBI carries it out. There is no warrant, no court proceeding, no opportunity even for the subject of the surveillance to challenge the assertion of the owner that some unauthorized use of the computer has occurred.

My bill would modify the computer trespass provision in the following ways to protect against abuse, while still maintaining its usefulness in cases of denial of service attacks and other forms of hacking.

First, it would require that the owner or operator of the protected computer authorizing the interception has been subject to ``an ongoing pattern of communications activity that threatens the integrity or operation of such computer.'' In other words, the owner has to be the target of some kind of hacking.

Second, the bill limits the length of warrantless surveillance to 96 hours. This is twice as long as is allowed for an emergency wiretap. With four days of surveillance, it should not be difficult for the government to gather sufficient evidence of wrongdoing to obtain a warrant if continued surveillance is necessary.

Finally, the bill would require the Attorney General to annually report on the use of Section 217 to the Senate and House Judiciary Committees. Section 217 is one of the provisions that is subject to the sunset provision in the PATRIOT Act and will expire at the end of 2005. We in the Congress need to do more oversight of the use of this and other provisions of PATRIOT Act in order to evaluate their effectiveness.

The computer trespass provision now in the law as a result of section 217 of the PATRIOT Act leaves open the possibility for significant and unnecessary invasions of privacy. The reasonable and modest changes to the provision contained in this bill preserve the usefulness of the provision for investigations of cyberhacking, but reduce the possibility of government abuse. We must continually seek to balance the need for effective tools to fight crime and terrorism against the civil liberties of our citizens. The Computer Trespass Clarification Act strikes the right balance, and I urge my colleagues to support it.

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

Mr. President, when the time comes I intend to vote in favor of Judge Chertoff's nomination to be Secretary of Homeland Security. There is no position in government of greater importance to the security of our country and of my home State of New York. And so I am glad that the Senate has agreed to devote some time to a discussion of the important issues that the next Secretary of Homeland Security will face.

Let me say at the outset that I have some serious concerns about this nomination. These concerns have nothing to do with Judge Chertoff's personal abilities: his professional and intellectual qualifications are beyond question, as is his commitment to public service. Rather, my concerns are based on the misguided and constitutionally infirm policies that have been drafted by the Department of Justice and implemented by the Administration in its prosecution of the war on terror and in the conflicts in Afghanistan and Iraq. Judge Chertoff was a senior DOJ official at the time that these policies were created. Because he is being nominated to a position for which respect for Constitutional and treaty obligations is especially important, his role in the formation of these policies is therefore worthy of careful scrutiny.

My primary concern relates to those policies that have undercut and placed our men and women in uniform in greater danger and diminished our standing in the international community. I feel a particular personal obligation as a member of the Armed Services Committee to do my utmost to ensure that our government does not do anything that unnecessarily puts our troops in harm's way, that diminishes our standing among our allies, or that blurs the values that distinguish us from our depraved and nihilistic enemies.

The August 1, 2002 memo from the Department of Justice's Office of Legal Counsel, with its absurdly narrow definition of torture, is the most shocking and well-known example of the administration's attempt to radically weaken this country's commitment to treat all prisoners and detainees humanely and in accordance with international agreements. Another oft-cited example is Attorney General Gonzales' January 2002 advice to President Bush that the ``war on terrorism'' offers a ``new paradigm [that] renders obsolete'' the Geneva Convention's protections.

I am satisfied by Judge Chertoff's testimony that, as Assistant Attorney General for the Criminal Division, he did not provide legal advice that strayed below the standard that is expected from senior members of the Justice Department. He testified that executive branch officials sought his views on the practical application of laws prohibiting torture and on specific techniques. And he testified that torture is illegal and wrong and that he does not believe that the definition of torture in the August 1, 2002 OLC memo is broad enough. He testified that he told executive branch officials to ``be sure that you have good faith and you've operated diligently to make sure what you are considering doing is well within the law.'' Regarding specific techniques, Judge Chertoff testified that, ``I was not prepared to say to people, to approve things in advance, or to give people speculative opinions that they might later take as some kind of a license to do something.''

These responses suggest that Judge Chertoff appreciates the importance of upholding America's long tradition of treating prisoners humanely, and of respecting international agreements that protect our men and women in uniform as well as our standing in the international community. While I would have preferred that Judge Chertoff had argued his point to the administration more forcefully, I am satisfied that he did not actively promote these wrongheaded, immoral, and counterproductive policies.

Another important concern arises from the Justice Department's treatment of more than 750 aliens detained immediately following the attacks of September 11. The department's own inspector general released a report in 2003 that acknowledged the ``difficult circumstances'' in which the department found itself, but concluded there were ``significant problems in the way that the September 11 detainees were treated.'' Among those problems were significant delays in the FBI's clearance process, hindrances in access to legal counsel, and verbal and physical abuse of detainees. The report specifically finds that the Justice Department, including Judge Chertoff, was aware of the FBI's clearance problems at the time. In fact, Judge Chertoff testified that he inquired with the FBI about the clearance delays, but the FBI's resources were ``stretched.'' The inspector general found that the Justice Department should have done more once it learned of the detainee-related problems.

When asked about this report at his confirmation hearing, Judge Chertoff acknowledged that there were ``imperfections'' in the executive branch's response. He testified that he was unaware at the time of the hindrances in detainees' access to counsel, that he was unaware of the verbal and physical abuse, and that such mistreatment is inappropriate and should not have happened. He also stated the importance of learning from experience.

I am disappointed that Judge Chertoff did not express greater regret for the department's role in the mistreatment of detainees, and that he did not testify in detail as to the status of the implementation of the inspector general's recommended 21 reforms. Nonetheless, his responses to this line of questioning are not, in my view, sufficient to oppose his nomination. I hope that Judge Chertoff will bring to bear the lessons we have learned from this experience and work to ensure appropriate reforms are successfully carried out.

After careful consideration, I am satisfied by Judge Chertoff's answers to the Senate Homeland Security and Governmental Affairs Committee regarding his conduct at the Justice Department. Despite the egregious missteps the department made during his tenure, I do not believe that his performance there disqualifies him from serving as the next Secretary of the Department of Homeland Security. And in view of his testimony and of his exceptional record during his short time on the Federal bench, I believe that Judge Chertoff understands that the next Secretary of Homeland Security must be both unflagging in his efforts to protect us from terrorist attack and steadfast in his respect for our Constitutional order.

I also believe that Judge Chertoff has a good understanding of the issues and challenges facing the Department of Homeland Security. Perhaps the biggest challenge awaiting him is the taming of the enormous bureaucratic tangle that is the current department. If confirmed, Judge Chertoff will become the head of a department that was created via the integration of 22 separate agencies and 180,000 employees. These agencies and employees engage in a wide range of activities related to securing the homeland, and they need a steady and firm hand on the tiller. They also need a creative leader who can cut through bureaucratic entanglement and get things done. As Secretary, Judge Chertoff's central task will be setting priorities and getting a vast bureaucracy to work efficiently and in a unified fashion.

I am hopeful Judge Chertoff's well-documented intellectual abilities and his long experience as a public servant will serve him well as he moves from the role of Federal judge to the head of such a large and demanding Department. He pledged at his confirmation

hearing to work ``tirelessly'' to safeguard the nation. I hope he follows through on that pledge in a variety of areas of critical importance. He will need to devote substantial energy and political capital if he is to help this still nascent Department develop to its full potential and render all Americans as safe and as secure in their liberties as possible.

I am encouraged that Judge Chertoff and I agree on a number of specific challenges facing the Department of Homeland Security. One of these issues--Federal funding formulas for state and local preparedness--is essential to protecting the homeland. I have repeatedly called upon the administration and my colleagues to implement threat-based homeland security funding, so that homeland security resources go to the states and areas where they are needed most. I have introduced legislation in this regard and even developed a specific homeland security formula for administration officials to consider.

The latest iteration of that proposal is contained in my Domestic Defense Fund Act of 2005, which I introduced on the first legislative day of this Congress. Modeled on the Community Development Block Grant program, the Domestic Defense Fund of 2005 provides $7 billion in annual funding to local communities, States, and first responders. The act requires that all of that funding be allocated using threat, risk, and vulnerability-based criteria that homeland security experts-- including the Homeland Security Independent Task Force of the Council on Foreign Relations, chaired by former Senators Gary Hart and Warren Rudman, and the National Commission on Terrorist Attacks Upon the United States--have long recommended.

I was heartened to hear Judge Chertoff testify at his confirmation hearing, that ``I think we have to have a formula for funding and a formula for lending assistance to State and local governments across the board that takes account of the reality of vulnerabilities and risks and making sure that we're making a fair allocation.'' Judge Chertoff also stated this view when I met with him. His unequivocal support for threat- and vulnerability-based funding is important for New York, and for the nation.

Another issue on which Judge Chertoff and I agree is the need for greater sharing of terrorist-related information between and among Federal, State, and local government agencies. In the immediate aftermath of the 9/11 terrorist attacks, I worked with a number of my colleagues in the Senate on a bi-partisan basis in focusing on this need. As I noted in my remarks on the passage of the Intelligence Reform and Terrorism Prevention Act of 2004, the sharing of critical intelligence information is vitally important if we are to win the War against terrorism. We need to ensure that our front line solders in the war against terrorism here at home--our local communities and our first responders--are as informed as possible about any possible threat so that they can do the best job possible to protect all Americans. It is vital for New York City and other local communities across New York State and the Nation to receive accurate and timely information from the department when a potential threat emerges. It is equally important that local communities on the front lines serve as valuable sources of information for the Federal Government.

I was pleased to learn that Judge Chertoff testified at his confirmation hearing that his personal experiences as an Assistant United States Attorney, a United States Attorney and as head of the Criminal Division on September 11, give him a thorough appreciation and respect for State and local perspectives. In his testimony, he described ``negotiating cooperation with our state and local government officials'' as one of ``the central elements of the war against terrorism. . . .'' He repeatedly referred to the need to work in partnership with State and local government.

I could not agree more. The Federal Government cannot, and should not, go it alone when it comes to securing the homeland. States and local communities must be full partners. Much more needs to be done, but Judge Chertoff's testimony demonstrates that he understands the importance of this area as a key to homeland security.

I also find it encouraging that Judge Chertoff testified that he is ``acutely aware'' of the importance of allocating resources to secure our ports. Needless to say, having a secretary of homeland security who understands the importance of the Port of New York and New Jersey is likely to be a good thing for New Yorkers, and for the entire country.

There has been little evidence to date that administration is interested in using a threat-based formula for allocating resources. Indeed, in Fiscal Year 2004, when the Administration had the opportunity to employ such a formula in allocating funds under the State Homeland Security Grant Program, SHGP, and the Law Enforcement Terrorism Prevention, LETP, grant program, it affirmatively chose not to do so, despite pleas from me and many members of Congress on both sides of the aisle. Again in Fiscal Year 2005, there was no significant effort on the part of the administration to use a threat-based formula.

I wrote President Bush imploring him to work with the House and Senate leadership on the issue of homeland security funding, but language was inserted in the Fiscal Year 2005 Homeland Security Appropriations Act to require that SHGP and LETP funds be allocated in that fiscal year as the administration chose to allocate funds in Fiscal Year 2004, which, unfortunately, was on the basis of population alone. Every homeland security expert I know has said that this makes no sense. If the terrorists are looking at things such as the presence and vulnerability of critical infrastructures as well as population and population densities, so should we.

This year, the administration is again talking a good game on homeland security grant formulas. The Fiscal Year 2006 budget request calls for more than $1 billion in grants to States for the purpose of enhancing capabilities to prevent, deter, respond to and recover from acts of terrorism, to be allocated by the Secretary of Homeland Security ``based on risks, threats, vulnerabilities, and unmet essential capabilities,'' with a 0.25 percent State minimum. In addition, more than $1 billion would go for grants to urban areas, for the same purpose, and on the same basis--minus, of course, a State minimum.

This is a step in the right direction, but we need to allocate much more funding for this purpose. Whether through direct funding--which I continue to believe is the best way to disburse homeland security funding to many communities--or funding that is sent to the states and passed through to local communities, the Federal Government should be disbursing the homeland security state and local funds to communities according to a threat- and vulnerability-based formula.

In addition, my Domestic Defense Fund Act makes it explicit that the funding provided for in my proposed legislation will not supplant or be in lieu of funding for traditional first responders programs, such as the Community Oriented Policing Services, COPS, program and the Assistance to Fire Fighters, FIRE, Act program. These Federal programs have proven successful in helping first responders perform traditional functions, such as fighting crime and responding to fires.

Unfortunately, the Fiscal Year 2006 budget request seeks to cut or eliminate a number of these essential first responder programs. Under the President's proposed budget, funding for the COPS program is reduced from $379 million to $118 million nationally, which comes on top of previous years' cuts for the COPS program, which once received more than $1.5 billion in funding. And absolutely no funding is proposed for the COPS Universal Hiring Program, the COPS MORE program, COPS in Schools program, or the COPS Interoperable Communications Technology Program.

The Fiscal Year 2006 budget request also proposes no funding for the Edward Byrne Memorial Justice Assistance Grant program, named after a New York City police officer killed in the line of duty, and the Local Law Enforcement Block Grant program. These programs in the past have provided states and local governments with Federal funds to support efforts to reduce crime and increase public safety, such

as enhancing security measures around schools, establishing or supporting drug courts, and preventing violent and/or drug-related crime.

I find that shameful, especially as our fire fighters, police officers, emergency service workers and other first responders continue to be on the front lines of our nation's homeland defense. It is imperative that Judge Chertoff, if confirmed, stand by his philosophy of risk-based allocation and appreciation for the role of state and local partners when he prepares his department's budget in coming years.

In fact, the outcome of a number of homeland security imperatives will depend to a significant extent on Judge Chertoff's willingness to fight hard during the budget process. A good example of this is the addition of new border patrol agents mandated in the recently enacted Intelligence Reform and Terrorism Prevention Act of 2004. If the goals of this legislation are realized, the security of the northern border would be improved, a result I have worked for since 2001. Among many provisions, the act calls for an increase of at least 10,000 border patrol agents from Fiscal Years 2006 through 2010, many of whom will be dedicated specifically to our northern border. And yet the FY06 budget request did not come close to seeking the 2,000 new border patrol agents authorized for this year. Judge Chertoff must be willing to fight hard for full funding of this and other programs essential to the department's mission.

I appreciate that Judge Chertoff understands the critical importance of securing chemical facilities. There are hundreds of chemical plants in the United States where a terrorist attack could threaten more than 100,000 Americans with exposure to toxic chemicals. This is a homeland security vulnerability that has been recognized by many, yet we still have no mandatory Federal standards for chemical plants, and the Department of Homeland Security lacks authority to put such standards in place. Until Congress provides the department with such authority, Americans will continue to rely on voluntary security measures at chemical plants, which have been repeatedly shown to be lax.

I believe that the best solution to this problem would be to enact the Chemical Security Act that I have sponsored with Senator Corzine. However, in order to pass this or other chemical plant security legislation, we will need stronger support from the administration and from the Secretary of Homeland Security than we have had in the past. That is why I was encouraged by Judge Chertoff's testimony that he is aware of the significant risk of that sector based on his personal experience. He also testified that ``the Federal Government needs to be able to use a whole range of tools to bring the industry up to an appropriate standard'' and that ``the President has indicated that he supports, if necessary, the use of authorities to require chemical companies to come up to certain standards, with appropriate penalties if they don't do so.''

Thus, on balance, my personal exchange with Judge Chertoff--and the testimony he gave during his confirmation hearing--speak of his commitment to threat- and vulnerability-based funding, his keen awareness of other vital homeland security issues for New Yorkers, and his intent to work tirelessly. He is from New Jersey and knows the homeland security needs of the region from personal experience. Ultimately, his roots in the region, his personal experiences, and his expressions of commitment to policies that are essential to the security of New Yorkers, are decisive factors in my decision to vote to confirm.

One of the lessons we have learned since September 11 is that constant vigilance is required of the Congress; oversight and accountability must be our watch words. Oversight requires us to demand that the rule of law be respected by the executive branch, and that we do not countenance the flouting of the law or of treaties. It requires us to hold the executive branch truly accountable for its actions. If we have learned anything since that September day in 2001, particularly with respect to this administration, it is the timeless truth that ``eternal vigilance is the price of liberty.''

It has been said before, but it bears repeating--our Nation faces a new kind of challenge to our way of life. I have no doubt we will overcome this challenge, but it will only be overcome through maintaining and strengthening our civil society and our commitment to being a force for decency and respect for law in the world.

Judge Chertoff testified that, as Secretary, he will ``be mindful of the need to reconcile the imperatives of security with the preservation of liberty and privacy.'' I agree that one of the central dilemmas of our time is balancing security with liberty and privacy. As the 9/11 Commission said, ``Our history has shown us that insecurity threatens liberty. Yet, if our liberties are curtailed, we lose the values that we are struggling to defend.'' I believe that Judge Chertoff is professionally qualified to be Secretary of Homeland Security, and that he understands and respects the values that the Secretary works to defend. Therefore, I will be voting in favor of his confirmation.

Mr. President, I rise today in support of the nomination of Michael Chertoff to be Secretary of the Department of Homeland Security, DHS. Chairman Stevens and I had the opportunity to meet with Judge Chertoff, and I was encouraged by his desire to work with Congress to address the nation's homeland security needs. I believe that his stated goal of resolving the internal disputes that have plagued DHS since its founding and his commitment to reduce the vulnerability of all our transportation systems to terrorist attack will serve him well in this new capacity.

Though I support Judge Chertoff's nomination, I want to take this opportunity to express some of my thoughts and concerns about the current state of DHS and the Transportation Security Administration in particular.

In the days following September 11, we all recognized the many serious flaws in our homeland security efforts. We were exposed to new and unexpected threats in ways we had never before thought possible. We committed to do everything in our power to ensure that a tragedy like September 11 would never happen again. We took bold, speedy, and necessary action. We made transportation security a national security function by enacting the Aviation Transportation Security Act and the Maritime Transportation Security Act, both considered landmark legislation.

Although a number of high profile actions have been taken to strengthen aviation security, I fear that the same zealous effort to adequately strengthen security across all modes of transportation has stalled. In the more than three years since September 11, very little has been done to aggressively promote security of our ports, our passenger and freight rail system, motor carriers, pipelines, and hazardous materials, despite very specific congressional direction.

Meanwhile, the threats to our transportation security are as serious as they have always been. From the train bombing in Madrid to the maritime attack off the coast of Yemen, the threats have not waned in the slightest.

But, based on the President's Budget, there are apparently some in the Administration who seem to believe that our work is done. The President's Budget recommends shifting critical work away from the Transportation Security Administration, TSA, to other organizations within DHS that have neither the expertise nor the necessary authority to be effective. In my view, further decentralizing the responsibilities of TSA will destroy the remaining, limited accountability that TSA provides for transportation security.

I recognize that consolidating 22 Federal agencies into one department presents significant management challenges and that growing pains are to be expected as different agencies come together. However, growing pains are not a license to continue the stovepipe behavior that existed prior to September 11. When Congress created the Department of Homeland Security and, more specifically, the Transportation Security Administration, it made clear that ``business as usual'' was not acceptable. The Department and TSA need to reread the underlying statutes and start functioning as Congress directed. It is my hope that Judge Chertoff will be a leader who understands that necessity.

Let me speak for a few minutes about the particulars of TSA and the President's budget. In truth, the difficult work of securing all of our major modes of transportation, including ports, shipping, railroads, intercity buses, motor carriers, and pipelines is just beginning, and the nation must have a robust agency within the Department dedicated to that task.

Security funding for all modes of transportation beyond aviation has been desperately lacking. The 9/11 Commission found, ``over 90 percent of the nation's $5.3 billion annual investment in the TSA goes to aviation . . . [and] . . . current efforts do not yet reflect a forward-looking strategic plan.''

According to Senate Banking Committee estimates, the Federal Government has spent $9.16 per airline passenger each year on enhanced security measures, while spending less than a penny annually per person on security measures for other modes of transportation.

Port security and safe maritime transportation is of particular interest to me. They are absolutely essential for my state of Hawaii, its economic health, and the life and livelihood of its citizens. Chairman Stevens' state of Alaska is similarly situated, and I know port security is of great importance to him as well.

Apparently, though, we need to remind the Administration--and perhaps the nominee--that 95 percent of the Nation's cargo comes through the ports. The security initiatives at most ports have been, to this point, woefully underfunded, and most are ill prepared for an attack. Unfortunately, our maritime system is only as strong as its weakest link. If there is an incident at any one port, the whole system will screech to a halt, as we scramble to ensure security at other ports. If we had to shut down our entire port system, the economic damage would be widespread, catastrophic and possibly irreversible.

Judge Chertoff has many tools at his disposal to protect our maritime and shipping interests, both through the TSA and the U.S. Coast Guard. Our national shore line extends for thousands of miles, with key cities and facilities located all along the coasts. Whether it is monitoring, credentialing, or inspecting cargo, there is no doubt, port security is a daunting and difficult task.

If Judge Chertoff has difficulty understanding the importance of improved port security, there are 14 members of our committee with major ports in their State, and I am sure each would be more than willing to help provide greater clarity.

Even though we all recognize the overwhelming task of port security, the President's Budget does not do enough. It is true that the Coast Guard increases 7.5 percent over the previous fiscal year, which seems laudable. However, when you look at the numbers, it becomes clear that the administration's request--for the third year in a row--does not recognize that in addition to the Coast Guard's ever-increasing port securities duties, it must still continue critical functions like search and rescue efforts and enforcement of coastal and fisheries laws. There is no question that we must provide for increased security, but there is also no question that other critical missions also impact the free flow of maritime commerce.

In addition to not providing enough funding for Coast Guard activities, the President's budget also proposes to develop a Targeted Infrastructure Protection Program, TIPP, within the Office of State and Local Government Coordination and Preparedness to administer $600 million in integrated grants for the protection of transit, railroads, ports, highways and energy facilities.

This odd realignment of the grant process adds layers of bureaucracy, further diminishes accountability and distribution of these critical funds, and it is directly contrary to the law Congress enacted just 6 months ago. It also shields the fact that the administration is using the same limited pot of money, extending it to a wider range of grantees, and making them compete against one another when each of their projects merit grant funding.

The administration also proposes establishing a new Office of Screening Coordination and Operations, SCO, within the Border and Transportation Security, BTS, Directorate. This new entity would purportedly coordinate procedures to identify and interdict people, cargo and other entities that pose a threat to homeland security.

This short-sighted proposal calls for cutting over 70 percent of TSA's funding for rail, trucking, pipeline, and hazmat security-related initiatives. The ``streamlining of duplicative programs and activities'' effectively eliminates TSA's role in allocating transportation security grants, maritime research and development grants, and cedes its regulatory authority to develop the Transportation Worker Identity Credential, TWIC, program. In short, this budget ignores congressional direction, transfers these functions back to agencies that operate in a stovepipe manner and do not have regulatory authority for credentialing, and decimates TSA's Office of Maritime and Land.

Regarding rail security, the administration's budget fails to propose any dedicated funding or specific programs to address rail security, and given their proposal to eliminate support for Amtrak, it is clear that the administration is not interested in rail service let alone rail security. The recent rail accident in South Carolina and the resulting chlorine gas spill remind us that our rail system presents unique vulnerabilities that, if exploited, could cause irreparable economic and physical damage to communities across the country.

TSA has undertaken several small-scale, ad hoc, efforts to strengthen rail security, from rail passenger screening pilot tests to rail corridor threat assessments in specific corridors. But the administration's lack of support for dedicated funding or programs-- beyond what the Congress has forced upon the agency through the appropriations process--reflects the low priority that TSA leadership and the administration place on this important work. They behave as if September 11 never happened.

The budget proposal for aviation security appears on paper to increase by $156 million, but this funding depends on $1.5 billion in new revenues raised through increased security fees on airline passengers.

We can debate how much we need for security, but it does not make any sense to place the burden for new DHS revenue on an airline industry that is bordering on total bankruptcy, when at the same time the administration is demanding that its unaffordable tax cuts be made permanent.

The airlines have argued convincingly that they cannot pass along increased security fees to the passengers in their highly competitive industry. Few of the carriers have managed even modest periods of profitability since September 11. I must remind people in this town, who often have a short and selective memory, that by a vote of 100 to 0 in the Senate and 410 to 9 in the House, this Congress chose to make transportation security a national security function. Funding homeland security is a Federal responsibility.

Given the many misplaced priorities that I see in the President's Budget proposal, it is clear that the Congress needs to help refocus the Department.

Let me state here before my colleagues and for the record, the Senate Commerce Committee will not stall in its efforts to continue developing comprehensive, bipartisan legislation to strengthen port, rail, and intercity bus security, regardless of the Bush administration's repeated refusal to support or properly address these critical initiatives. Our national transportation system remains an inviting target for terrorists. The system is vulnerable, and an attack could cause widespread, catastrophic economic damage. In fact, in his most recent video tape, Osama bin Laden stated plainly that bankrupting the United States was a primary, al-Qaida goal, and given al-Qaida's previous attacks, it is clear that transportation systems are high on their target list.

So I come to the floor today to inform my colleagues and the administration that, I, along with many of my fellow Commerce Committee members, will be introducing a transportation security reauthorization proposal, which will provide further direction to the Department's cargo security functions, strengthen aviation, maritime, rail, hazardous materials, and pipeline security efforts, and improve interagency cooperation.

The proposal will incorporate several Commerce Committee-reported and Senate-passed bills from the prior Congress and will also put forth new ideas to enhance transportation security across all modes of transportation.

For port security, we will seek to improve interagency cooperation by further developing joint operation command centers. Additionally, our bill will clarify the roles and responsibilities for cargo security programs, while establishing criteria for contingency response plans. Our legislation will further encourage the development of effective technologies that detect terrorist threats by setting a minimum level of R&D funding related to maritime and land security.

To address aviation, we will take several steps to strengthen the existing, professional, screening workforce through improved training of personnel and by directing a more appropriate use of TSA's resources. Additionally, we will seek to streamline and improve collection of airline and passenger security fees to promote a more efficient and healthy aviation industry.

For rail security, we will incorporate an updated version of the Rail Security Act of 2004, which the Senate passed by unanimous consent last year, and we will feature new efforts to ensure the security of hazardous materials that are shipped by rail.

To address the security needs of our other surface transportation modes, the proposal will include funding to improve intercity bus security, strengthened hazardous material transportation security efforts, new security guidelines for truck rental and leasing operations, and the development of pipeline security incident recovery plans.

I look forward to working with Judge Chertoff, the TSA, and the administration on this effort, and I remain hopeful that his new leadership at DHS will inspire the requisite commitment and dedication necessary to meet the security challenges ahead. The work will not be easy. While most of us recognize the improvements that have been made in airline security over the last few years, others are pushing to roll back the progress that we have made.

Despite that progress, there are some that continue to urge TSA to return to the days of private security screening companies, like Argenbright Security and its underpaid, poorly trained workforce. These efforts are not just shortsighted, they disregard a national imperative to treat transportation security as a national security function, and they should be quickly dismissed by the administration. I call on Judge Chertoff to clarify DHS's position on this matter quickly, so the country can continue to have faith in the security efforts we have come to expect when flying.

Similarly, TSA needs more resources and attention paid to port, rail, motor carrier, hazardous materials, and pipeline security matters, not less, and I am hopeful that Judge Chertoff will make strengthening all areas of transportation security one of his top missions.

We must take this opportunity to continue moving in the right direction and avoid taking steps backward. I support the nomination of Michael Chertoff as Secretary of Homeland Security and look forward to working with him to ensure that the American people can depend on a national transportation system that is as safe and secure as possible.

Mr. President, I yield 5 minutes to the distinguished Senator from Tennessee.

Mr. President, I yield 5 minutes to the distinguished Senator from Virginia and, from the minority's time, I will yield 10 minutes to the distinguished Senator from New York.

Mr. President, I thank my colleague from New York for his excellent statement.

I see a very valuable member of the committee, the Senator from Hawaii, is here to speak. I am prepared to yield to him 10 minutes from the minority side.

Mr. President, I thank my colleague from Hawaii for his excellent statement. He is a very valuable member of the committee, and I very much enjoy working with him.

I rise again today in support of the nomination of Judge Michael Chertoff to be the new Secretary of Homeland Security. As the Presiding Officer knows better than most, this is one of the most challenging and critical jobs in the entire Federal Government. Judge Chertoff is clearly the right person to take the helm of this Department, and it is past time to put him in that post.

The Committee on Homeland Security and Governmental Affairs held a nomination hearing for Judge Chertoff on February 2. It was a long and thorough hearing. Judge Chertoff answered every question posed to him fully and candidly. His responses to more than 250 written questions my committee presented to him were just as forthright. His nomination was endorsed by a unanimous vote.

I mention this because there should be no impression among our colleagues that our committee did not do a thorough job in questioning Judge Chertoff. To the contrary, he was subjected to hundreds of questions. He responded to every question posed to him at our committee's lengthy nomination hearing. And every member of the committee, on both sides of the aisle, had ample opportunity to question Judge Chertoff on whatever issues they wished to raise with him.

In fact, I am aware of no opposition to his nomination. Virtually the only issue we have debated during the course of these proceedings is one that I believe has no bearing whatsoever on Judge Chertoff's fitness to serve in this critical capacity. This issue is the demand, by a few of our colleagues, for information regarding the FBI's personnel working at Guantanamo Bay's detention facility and what information they may have had about interrogation techniques used on detainees by Department of Defense personnel.

Let me make clear that all of us have concerns about the proper and humane treatment of our detainees. The distinguished chairman of the Armed Services Committee, who also serves on our committee, held a number of hearings to explore the treatment of detainees. It is my understanding that the Senate Intelligence Committee is also embarking on an investigation of the treatment of detainees by CIA personnel. So this is an issue. But the problem is, this is not an issue in which Judge Chertoff has been involved in setting policy. He is being asked for information he simply does not have.

At our committee's nomination hearing, Judge Chertoff was asked about these concerns by my distinguished colleague from Michigan, Senator Levin. Judge Chertoff's answer was unequivocal. Let me read it to you. He said:

I was not aware during my tenure at the Department of

Justice that there were practices at Guantanamo, if there

were practices at Guantanamo, that would be torture or

anything even approaching torture.

He was not aware--not he did not recall not he was not sure; He was not aware. That is unambiguous testimony.

Our responsibility as Senators to advise and consent on executive branch nominees is a solemn one. It is one, as chairman of the committee, I take very seriously. If there were a good reason to delay consideration of a nomination in order to secure important information, then delay would be appropriate; it would be called for. But expecting a nominee to provide information that he has sworn under oath he does not know is not a good reason for delaying his nomination.

The questions about Judge Chertoff's knowledge of the treatment of detainees have been asked and answered, repeatedly. They have been asked in prehearing questions. They have been asked at the hearing. And they have been asked posthearing.

Judge Michael Chertoff is eminently qualified for this important position. In his distinguished career, he has established a strong reputation as a tough prosecutor. But he has established a reputation as a fierce defender of civil liberties. His position on the balance between these two critical roles was made clear in his testimony before the committee. He said:

I believe that we cannot live in liberty without security,

but we would not want to live in security without liberty.

I cannot think of a more eloquent statement by a nominee, showing us--demonstrating beyond a doubt--he clearly understands that as he increases security for our Nation, he must be ever mindful of privacy rights, of civil liberties, of the very freedoms that define us as Americans, and that we cherish. Indeed, we would be handing the terrorists a victory if we so

compromised our freedoms in the name of security. Judge Chertoff understands that tension, that balance, the need for constant evaluation.

Judge Chertoff has also demonstrated a great ability to work with law enforcement agencies at all levels of Government. He has a keen understanding of the broad range of homeland security vulnerabilities faced by States and communities throughout the country.

When I have talked to law enforcement officials from Maine to California about Judge Chertoff, they have unanimously and enthusiastically embraced his nomination. They know he will listen to State and local law enforcement, and that he views them as partners in our fight to tighten and improve our homeland security.

I point out that Judge Chertoff was confirmed three times previously by this body. He was confirmed overwhelmingly by both sides of the aisle 2 years ago for one of the highest courts in the land. And now, having attained a lifelong appointment at the pinnacle of his legal profession, he nevertheless is giving that up. He is giving up a lifetime appointment on one of the most prestigious courts in the country to step forward to serve our Nation in one of the most difficult jobs imaginable, one of the most thankless jobs in the Federal Government.

I remind my colleagues of what he told our committee when I asked him why he was willing to give up that judgeship, why he was willing to make that sacrifice. He said--and his words are eloquent--

September 11th and the challenge it posed was, at least to

my lights, the greatest challenge of my generation, and it

was one that touched me both personally and in my work at the

Department of Justice.

The call to serve in helping to protect America was the one

call I could not decline.

We are fortunate to have an individual of Michael Chertoff's quality, with his commitment to public service, who is willing to answer the call of his country. I hope he will be unanimously confirmed later this afternoon.

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 to speak as in morning business for up to 10 minutes and that this speech not interrupt the debate on the Chertoff nomination.

Mr. President, I will withhold that request so that the Senator from New Jersey, who has just come to the Chamber, may speak on the nomination. I yield him 10 minutes from the minority side.

Mr. President, I will make clear that it is coming from the Democrats' time.

Mr. President, earlier today, the senior Senator from Massachusetts spoke on this nomination. I have enormous respect and affection for my colleague from New England, but on this occasion I believe his comments were well off the mark. Here are some of the words my colleague spoke:

Our problems with the administration on this nomination

pale in comparison with the failure of the Senate Republican

majority to carry out its own constitutional responsibilities

on this nomination. Instead of insisting on adequate answers

to questions raised by the documents, they have acquiesced in

the Government's coverup and abdicated their own independent

constitutional responsibility to provide advice and consent.

I sincerely believe that were I fortunate enough to have the senior Senator from Massachusetts serve on the committee the Presiding Officer and I serve on, he would never have said those words or reached such a harsh judgment.

He went on in his statement to call these proceedings ``a blatantly defective consent.'' Again, I so wish that the senior Senator from Massachusetts had had the opportunity to participate in our committee's process. He would have found that our committee has the most thorough process for considering nominations of any committee in the entire Senate. I believe our committee is the only one, for example, that has the staff on both sides of the aisle interview the nominee. We posed to Judge Chertoff 250 written questions, both before the hearing and after the hearing. We had a lengthy hearing in which members on both sides of the aisle were free to ask the toughest questions possible to the nominee.

There was no limit on the questions that could be submitted for the record, and the nominee sat for hours patiently, fully, and candidly answering the questions posed to him by the members of the committee. So I believe that the judgment of the Senator from Massachusetts does not reflect the process we undertook for this nominee. I truly wish he could have seen the process because I think he would have reached a different conclusion. And I say that with a great deal of personal affection for my friend from Massachusetts.

The fact is, first, that Judge Chertoff has undergone intense scrutiny by the Homeland Security and Governmental Affairs Committee. I cannot imagine how anyone could conclude, given the number and the scope of questions posed to the judge, that this was somehow ``defective consent.''

Second, on the issue of the e-mails and the nominee's knowledge of questionable interrogation techniques used by certain DOD personnel at Guantanamo, Judge Chertoff's testimony could not have been clearer. He told the committee under oath that he was ``not aware'' of any practices at Guantanamo that ``even approach[ed] torture.'' He said he had ``no knowledge'' of any interrogation techniques other than those that he described as ``plain vanilla.'' These are straightforward, plain words--``I was not aware''; ``I had no knowledge.'' They are not susceptible to multiple interpretations. They are not ambiguous. They do not suggest the need to refresh the nominee's recollection. They do not invite speculation as to what the nominee meant. And there is only one reason why some of our colleagues would feel the need to ask other people about what they said to Judge Chertoff, and that is, if we did not believe him.

This is a distinguished public servant, a sitting Federal judge who is testifying before our committee under oath. There is no reason to doubt his testimony. His testimony was clear, it was forthright, it was candid. It is demeaning to suggest that somehow we need to probe this further because we do not believe this distinguished public official.

I asked this question yesterday, but I am going to repeat it again: Since when have we become so cynical about good people who are willing to step forward, sacrifice, and serve our country? How could our colleagues from Michigan and Massachusetts come to this floor, praise Judge Chertoff, pledge to vote to confirm him, and then condemn the nomination process when we have concluded that the judge gave us truthful, straightforward answers, and we have no reason to doubt the answers he gave us? He was not evasive. He was straightforward. It does not make sense to criticize the process because the committee refuses to engage in an exercise that, at its core, is built upon the premise that Judge Chertoff is somehow being less than truthful with the committee. I reject that premise. There is no basis for it.

Let me close these remarks by saying a word about the Senate's constitutional role of advise and consent because I think a lot that has been said about this role misses an essential point.

We, the Senate, advise and consent. It is the President who appoints. We do not appoint. Sometimes I think some of my colleagues believe the Senate should do all of the appointing for the President, but that is not how the system works. That is not how our Constitution works. Indeed, as Professor Laurence Tribe has noted--and he is a liberal law scholar, not a conservative one--the appointments clause ``seeks to preserve an executive check upon legislative authority in the interest of avoiding an undue concentration of power in Congress''--in Congress--``in executing our responsibilities.''

We should do well to remember that it is the President who is appointing these positions. It is our job to advise and consent. We have performed that job well in this case. We subjected this nominee to extraordinary scrutiny, despite the fact that he has already been confirmed by this body three previous times. Nevertheless, as is appropriate, we went through a full confirmation process with a review of his biographical questionnaire, his finances, with a full FBI check, with an extensive public hearing that stretched several

hours, and with 250 written questions, primarily from Democratic members, submitted to him for response. What more can we ask? What more can we ask of a nominee who is simply stepping forward to answer the call to serve his country? And what more can we ask of a Senate committee in carrying out this solemn duty with which we are vested?

As much as I have respect and affection for my colleague, the senior Senator from Massachusetts, I cannot let his comments pass. That is why I felt compelled to explain to all of my colleagues what the process was and that the Senator's description simply does not reflect what was done. I am certain--absolutely certain--that had he been a member of the committee, had he joined with us in the nomination hearing, he would have reached an entirely different conclusion about the integrity and thoroughness of the process.

I thank the Chair.

Mr. President, I do anticipate that further of my colleagues will be coming to the floor. I will yield to them when that happens.

(The remarks of Ms. Collins pertaining to the introduction of S. 380 are printed in today's Record under ``Statements on Introduced Bills and Joint Resolutions.'')

Mr. President, I ask unanimous consent the quorum call I am about to invoke be charged equally to both sides.

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

Mr. President, today the Senate will complete the consideration of the nomination of Michael Chertoff to head the Department of Homeland Security.

Judge Chertoff currently serves as a Federal judge on the Court of Appeals for the Third Circuit. This is a lifetime appointment that he has held for a relatively short time and that he will be abandoning to return to executive branch service. I helped expedite and voted in favor of Judge Chertoff when his nomination to the third circuit came to the Senate in 2003.

Before that he was the Assistant Attorney General in charge of the Criminal Division at the Department of Justice. I helped expedite and voted in favor of that nomination in 2001.

I have worked with Mike Chertoff and appreciate his background as a prosecutor. He is very capable. He works hard. What one sees when you consider his career is that much of the time he acts as a consummate professional in our best tradition. Although there have been times when he has shown partisanship in an apparent effort to ``earn his spurs'' with those on the extreme right, it is my hope and expectation that he will bring his better angels with him as he embarks on his new role as Secretary of the Office of Homeland Security. That is not a position that needs or deserves even a hint of partisanship. Indeed, one of the moments that marred Secretary Ridge's tenure was when he stepped out of character to make a blatantly partisan pitch during the run-up to the recent presidential election.

I was astonished when President Bush announced that he had chosen Bernie Kerik to replace Secretary Ridge. When newspapers and news magazines began looking at that nomination, it became apparent that the vetting of that nomination was shoddy and that Mr. Kerik was an unacceptable choice on a number of grounds. That misadventure cost us time and led to Judge Chertoff's nomination being made later than it should have been by the administration.

The Senate has expedited consideration of this nomination. In what I hope is a sign of better days to come and of increased responsiveness, I note that this nominee has responded in kind by seeking to answer in one day's time a letter I sent to him. I appreciate that kind of responsiveness.

In light of his effort, I will excuse his missing the point in failing to respond directly to my first question. I raised with the nominee an aspect of his conversations with representatives of the intelligence community while he was serving as a principal law enforcer charged with prosecutions under the anti-torture law. My question to Judge Chertoff was an opportunity for him to reflect on the inappropriateness of the chief prosecutor advising lawyers for possible investigatory targets regarding how he would apply the law and what might provide a safe harbor when it came to torture.

I commend Senator Levin for trying to get to the substance of those conversations during confirmation hearings. Sadly but all too characteristically, the Bush administration has refused to provide him or the Senate with the relevant materials in this regard. I am, likewise, concerned that Mr. Chertoff was not more assertive during discussions with the Office of Legal Counsel as it headed down the wrong road in trying artificially to narrow the definition of torture to provide latitude that contributed to widespread international scandals in our wrongful treatment of prisoners. I wish someone within the Bush administration at the time had stood up for the rule of law and had succeeded in derailing the search directed by Judge Gonzales to create loopholes in our law.

I appreciate that Judge Chertoff has committed to implementing the recommendations of the inspector general with respect to preserving the civil rights of those detained by the Government in his answer to my second question. That inquiry derived from his testimony to the Judiciary Committee in November 2001.

Finally, I asked a series of questions about the so-called ``wall'' between law

enforcement investigations and intelligence. The 9/11 Commission report went a long way toward dismantling the myth that former Attorney General Ashcroft had tried to perpetuate. I recall when even President Bush upbraided Attorney General Ashcroft following his assault upon Commissioner Gorelick at the 9/11 Commission hearings.

I pointed out that during the Clinton administration almost one year before September 11, 2001, the Department of Justice Office of Legal Counsel had issued an official memorandum noting the Government's position on ``Sharing Title III Electronic Surveillance Material with the Intelligence Community,'' which concluded that law enforcement officials may share surveillance information with the intelligence community to obtain assistance in preventing, investigating or prosecuting a crime, or where the information was of overriding importance to national security or foreign relations.

As Judge Chertoff recalls, it was Attorney General Ashcroft who adopted measures on January 21, 2000, and it was the memorandum issued by Deputy Attorney General Thompson on August 6, 2001, that governed information sharing in the days leading to the disaster that was September 11. Indeed, Judge Chertoff notes: ``When it was deemed to be appropriate, additional procedures were put in place in specific cases, or in sets of related cases.'' He proceeds to concede that without any change in the law, in the time between September 11 and enactment of the USA PATRIOT Act: ``With court approval, some of these procedures were modified between 9/11 and October 26, 2001, the effective date of the USA PATRIOT Act.''

The 9/11 Commission established during its investigation that in the days and months before September 11, 2001, information sharing requirements and procedures were misunderstood and misapplied at the Department of Justice. I appreciated Judge Chertoff's offering a glimpse into the inner workings of the Ashcroft Justice Department in the days that led up to 9/11 when he noted that there was a ``vigorous internal debate about the appropriate procedures for sharing information collected in foreign intelligence and counterterrorism investigations with criminal agents and prosecutors.'' That ``internal debate'' was unresolved on September 11, 2001, when terrorists struck in New York and at the Pentagon and were thwarted in the sky over Pennsylvania.

When the Justice Department came forward to work with the Senate in the weeks following the attacks, I worked with Mr. Chertoff to ensure that law enforcement and intelligence efforts were better coordinated, and I urged him, the Attorney General and the Director of the FBI to change the culture that had led to destructive and dysfunctional hoarding of essential security information.

I ask unanimous consent that copies of my letter to Judge Chertoff and his response be printed in the Record.

Heading the Department of Homeland Security is a position that may be one of the more difficult assignments in Washington and in Government. The work of the Department of Homeland Security, DHS, is crucial to the safety and security of the American people. There remain many problems in integrating the elements of the Department and in making them as effective as we need them to be. I remain concerned with a number of issues in need of greater attention at DHS and much more significant support from the highest levels of the Bush administration. Working with Secretary Chertoff, maybe we will be able to get that attention and support.

The Bush administration has failed to provide the necessary assistance for first responders throughout our Nation. As the costs borne by law enforcement agencies across the country continue to rise, we need to increase the partnership help offered to our nation's first responders. Instead, in the President's new budget, he has proposed cutting overall funding for first responders by $670 million. These cuts target vital emergency services affecting every State, regardless of size or population. The President also proposed cutting the all- State minimum for first-responder grants from 0.75 percent to 0.25 percent. That new formula would result in the loss of funds to police, firefighters and emergency rescue squads in dozens of states from coast to coast. In Vermont, this would mean a loss of at least $10 million dollars in fiscal year 2006--grant funds that are used to provide security services along thousands of miles of our border with three states. Vermont's border with Canada spans approximately 95 miles, but the Swanton Border Patrol is charged with protecting 24,000 square miles, which includes not only the entire State of Vermont, but also numerous counties in New York and New Hampshire. Within this area, the Swanton Border Patrol is required to patrol more than 261 miles of International Boundary.

Our approach to port security is also insufficient. More than 90 percent of the world's trade is moved in cargo containers. The Government Accountability Office has found that the information that the Bureau of Customs and Border Patrol uses to determine which cargo should be searched is ``one of the least reliable or useful for targeting purposes.'' In addition, our government has been slow to install radiation detection portals at our ports, leaving us vulnerable to the smuggling of a nuclear or radiological weapon.

Mass Transit Measures Idle. Our mass transit systems are similarly at risk. While we spent about $4.5 billion on aviation security last year, we devoted only $65 million to rail security, even though five times as many people take trains as planes every day. The

Madrid bombing vividly demonstrated the potential vulnerability of mass transit, and I am concerned that the administration is not responding effectively enough to this threat. This needs to be a higher priority than the administration has made it. The TSA has been slow in developing security procedures at port and rail facilities around the country, and our transit and freight transportation systems remain at risk. The recent DHS budget submission cuts funding for the following essential security programs: port security grants, port security incident response, intercity bus grants, container threat assessments, nuclear detection and monitoring, hazmat truck tracking and training, and rail security inspectors.

Air Security Concerns Linger. Despite the dedicated resources to aviation security, problems remain. There have been several reorganizations of the TSA's airport screeners program, but reports from the GAO and the DHS Office of Inspector General suggest that the screening programs for baggage and passengers at our nation's airports are not as effective as they should be. We need to ensure that the $4,734,784,000 budget request for aviation security this year is spent wisely and properly.

Secretary Chertoff, if he is confirmed, will oversee both the enforcement of our immigration laws and the granting of immigration benefits. We face a number of important choices on immigration in the coming years, and I hope that he will play a constructive role.

I urge him to support the bipartisan efforts in Congress to improve the H-2B visa program, so we can meet the needs of small employers around our nation who depend on seasonal immigrant labor to stay in business. I hope he will support the bipartisan ``AgJOBS'' bill, which provides relief both to the agriculture industry and to the immigrant farm workers who make up a majority of the farm workforce in our nation. And as the Congress debates fundamental immigration reform, I hope that Judge Chertoff will work to help ensure that any reform efforts recognize and embrace the tremendous contributions of immigrants to our economy and our culture.

I would like to note the release last week of a report by the U.S. Commission on International Religious Freedom, a bipartisan commission created by Congress that we asked to study the expedited removal system and its effect on asylum seekers. In his response to me last week, Judge Chertoff showed a commendable concern for the civil rights of those who were detained due to alleged immigration violations during the 9/11 investigation. His concern should be even more pronounced here, where the Commission found that DHS detains people who seek refuge in the United States--and are not even accused of committing any criminal or civil violation--under conditions that ``are entirely inappropriate for asylum seekers fleeing persecution.''

If we are to recapture America's rightful place as a haven for the oppressed, the tragic situation of asylum seekers must be rectified. The Commission offered a number of recommendations that can be implemented through administrative action, such as establishing an office within DHS to oversee the treatment of refugees and asylum seekers and issuing formal regulations governing when asylum seekers should be released from detention. I urge Judge Chertoff to begin the process of making these changes immediately.

As secretary, Judge Chertoff will also supervise a number of outstanding Federal employees who are Vermonters and work for various components of the Department, particularly in DHS' immigration agencies. I believe he will be pleased with their efforts and their expertise.

Secretary Ridge and I have disagreed strongly about DHS' efforts to privatize Immigration Information Officer, IIO, and other positions at the agency, and Congress has barred that privatization for the current fiscal year. Among other duties, IIOs perform background checks on applicants for immigration benefits, a function that should be performed by government employees. I urge Secretary Chertoff to consider the repeated votes of both the House and Senate to maintain these positions as government employees and to make no effort to revisit the unwise and unpopular efforts of his predecessor.

I will support this nomination. Secretary Chertoff will face great challenges ahead. I hope that he will work with me and others, on both sides of the aisle, in finding the best solutions in meeting them.