Department of Homeland Security Appropriations Act, 2007

DEPARTMENT OF HOMELAND SECURITY APPROPRIATIONS ACT, 2007 -- (Senate - July 13, 2006)

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AMENDMENT NO. 4615, AS MODIFIED

Mr. DURBIN. I was waiting in deference to the sponsor of the amendment. I think it is appropriate for him to open the debate. Now I am told that my time is running because he is not here. I have no option or alternative but to speak to the amendment.

I cannot believe this amendment is being offered to this bill. This is a bill on homeland security. This amendment relates to a declaration of a disaster, a disaster like Hurricane Katrina. Do you know what happens in times of disaster? You have probably seen it. Basic law enforcement breaks down. The police you expect to be there to manage things are overwhelmed. There are too many things going on at once. The fire department, the police department are trying to maintain order in the midst of chaos. Don't take my word for it. Remember what you saw on CNN around the clock. It was absolute chaos as people were being flooded out of their homes, desperately swimming through the water trying to reach the Superdome, trying to find a safe place.

What happened was, the police decided under those circumstances they wanted to maintain order. So the first thing they said is: This is a gun-free area. When people go into the Superdome, they don't bring guns into the Superdome because there are families there. There are mothers, fathers, and children. We are going to keep this as a gun-free area.

They obviously were sensitive to the fact that anyone can be vulnerable in a situation such as that. Imagine if your son or daughter is in a National Guard unit sent to this emergency trying to maintain order and snipers start shooting at them. It can happen. You may recall the reports of gunfire going on in New Orleans. I have no idea how valid those reports were. But it is understandable that law enforcement agencies in those situations will say: Wait a minute. We have to establish order. We have to at least have a safe zone around our National Guard troops so they don't get shot while they are down there trying to save these poor people.

Do you recall all those people who were filing across the bridge? Mothers were carrying babies. Imagine if someone was standing at the top of that bridge with a gun saying: Give me your money, as they come by. The police are trying to maintain order. In those circumstances, wouldn't you want to give the police, law enforcement agencies, the tools they need to protect rescue workers, to protect National Guard troops, to protect the mothers and fathers with their children who have been dispossessed from their homes? It is an obvious thing. It is commonsense.

Along comes the Vitter amendment. Do you know what Mr. Vitter, my colleague from Louisiana, suggests? None of the funds appropriated by this act shall be used for the seizure of a firearm based on the existence of a declaration of a state of emergency. You can't take the guns away. If they declare a disaster an emergency, you can't say to people, this is a gun-free zone and we are taking your gun away.

Is that what the second amendment is all about? Is that what the right to bear arms is all about, in a state of an emergency, in an effort to restore order in a chaotic situation, that you want to take away the power of a law enforcement agency to say: You can't bring a gun into the Superdome because there are children in there trying to sleep and mothers trying to keep them together in the midst of a disaster? Is that a violation of the second amendment to say if they are taking potshots at the National Guardsmen who are down there risking their lives for those poor people in that situation, that we are going to stop the guns from being close to where they are staying, where they are living? Is that a violation of the second amendment to say if somebody is using a gun which they might legally have but using it in an illegal fashion, you can't take the gun away?

That is what this amendment does. This is an incredible amendment. I can't believe that we would want to tie the hands of law enforcement in the midst of an emergency situation, when it is difficult to maintain law and order.

Years and years ago I went to law school in Washington. In 1968, I was sitting in my law school library, where I should have spent a lot more time. This city turned into pure chaos with the assassination of Dr. Martin Luther King, Jr. There were riots in the streets. Buildings were being burned. People were being arrested for looting and arson by the hundreds and thousands. The whole system disintegrated.

They went to the law schools and said: You are going to be lawyers today. You are going to represent people. The system was out of control. We were trying to establish order. We were trying to give to the police what they needed to get things settled down to keep people safe, to protect innocent victims.

I lived through it. I saw it. You have seen it, maybe not in your personal life, but following it on television. Yet, what we have here in the Vitter amendment is, it takes away the authority of law enforcement to take a gun from a person even if it is a threat to a helpless victim in a disaster or if it is a threat to a National Guard trooper or if it is a threat to another law enforcement agency.

Let me tell you what else. In his original version of the amendment, which he has changed, the Senator says we will make an exception--I want to make sure I get this right. If you see someone who has a gun, which could be seized under Federal or State law in a criminal investigation--think about that, this is a gun that may have been used to murder someone--you can take that gun in the midst of a disaster. They took that out. So if someone is standing there with a gun that you know was used in a criminal situation for a murder, they take away the authority of the law enforcement people to even seize that gun if someone has declared a disaster.

What are we thinking? Why would we do this to the men and women in law enforcement, to the National Guardsmen, or to innocent victims, which could be you or me or people we love, in a disaster they cannot even anticipate? Why would we do that?

I will tell you why. We are doing it for the National Rifle Association. We are doing it for the gun lobby. In their devotion to the second amendment, they have closed their eyes to the obvious. Owning guns legally and using guns legally in America is a protected right in Illinois and most States. But to take a situation that is a disaster, when the law has broken down and to say that you won't allow law enforcement to take a gun away that might be used to hurt an innocent person, that just goes too far.

I reserve the reminder of my time.

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Mr. DURBIN. Mr. President, I see the Senator from Massachusetts here. I will speak briefly.

What the Senator from Louisiana understands, and I think will concede, is that this is the third version of this amendment. It has been written and rewritten and rewritten again. What you have heard described may reflect an earlier version, but it doesn't reflect what is before us, I say to the Senator from Idaho. I respect him and I know he has a good understanding of the Constitution and the laws.

Let me read the words in the amendment before us:

None of the funds appropriated by this act shall be used for the seizure of a firearm based on the existence of a declaration of a state of emergency.

Did you hear a reference to existing State and local law exemption, which both the Senator from Louisiana and Idaho referred to? No.

Mr. KENNEDY. Will the Senator yield?

Mr. DURBIN. Yes.

Mr. KENNEDY. Let me ask, if we had a 9/11-type situation and you had Wal-Mart that was closed down, with broken windows, and they have a series of guns in the back, and K-Mart and pawn shops were broken down, does the purpose of this for first responders say they have to leave those guns on the shelves so that looters can arm themselves and terrorize a community? Would that be the result, in your reading of this?

Mr. DURBIN. It is so broad that that is exactly what would happen. All of the commonsense explanations you have heard notwithstanding, that is not what the amendment says.

Mr. KENNEDY. Let me ask further, did not the Senator from Idaho--I know the Senator from New Jersey and myself have indicated that if they wanted to go ahead and have some way that individuals could demonstrate they had a legitimate ownership of that gun, they would be immune from this amendment. That was rejected, as I understand it.

Mr. DURBIN. I say to the Senator that if the Senator from Idaho and the Senator from Louisiana want to put together an amendment that allows me to protect my home, as you have described, with my legally owned firearm, I have no objection to that. There are circumstances here that we could write into it, but as it is written, this prohibits the seizure of a firearm based on the existence of a declaration of a state of emergency. That covers it all. If they are firing on National Guardsmen and they say we are going to have a gun-free area around where the Guardsmen are living, you could not seize the guns. You could not take them away, according to the Vitter amendment.

Earlier versions of the amendment were much more explicit and they went through explanations, and the Senator, because he is on an appropriations bill and has procedural challenges, took out the language that clarifies what he is trying to do, and what he left behind is language that goes too far.

I yield 10 minutes to the Senator from Massachusetts.

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Mr. DURBIN. I thank the Senator for responding, and I will be as brief as I can. I thank my colleagues from Massachusetts and New Jersey.

Understand the situation we are talking about. This is not ordinary life in America. It is a time of a national emergency. It is a time of disaster. God forbid something like 9/11 should occur again; or Hurricane Katrina. It is an extraordinary circumstance where ordinary life is challenged, and we are just this close to seeing our society disintegrate, and the law enforcement officials are trying to keep things together. People are injured. People are pushed out of their homes. Fires are taking place. Chaos is reigning, and they are trying to keep the society together. So they make it clear that in some places, you can't use guns. Where you might have been able to use them under ordinary circumstances, because of a disaster, you cannot use them.

The example I use is you send the National Guardsmen in, they are sent in by the hundreds and thousands to maintain order, and then snipers start shooting at them. The police make it known that this will be a gun-free zone. We are going to confiscate every gun. We don't want any National Guardsmen killed because of this emergency, this disaster. Is that unreasonable? Not if it is your son or daughter who is a member of the National Guard.

But according to the Vitter amendment, the Vitter amendment would prohibit the seizure of a firearm based on the existence or a declaration of an emergency. You couldn't seize the firearm to protect the National Guardsmen or those, as the Senator from New Jersey said, driving down the street trying to put out the fire. People are shooting at them and they say: That is it, we are clearing the guns away from these major highways. We don't want people to be shooting at policemen and firemen and rescue workers. We don't want snipers killing people who are piling sandbags to save levees. Is any of that unreasonable? It sounds like exactly what we want our law enforcement agencies to do. But the Vitter amendment will tie their hands. The Vitter amendment will stop them.

One Senator came up to me on the floor and said: This doesn't sound like the Vitter amendment that was described to me earlier. It is not. This is the second rewrite of the original amendment. Each time Senator Vitter has rewritten it, in fairness to him, he has had to comply with Senate rules and he has had to change the wording, and now the wording is terrible. It no longer allows for existing State and Federal and local law enforcement, it no longer allows for the confiscation of guns that you know were used in the commission of a crime. These were in an earlier version of the amendment, but they are no longer there. It just says you can't use any of the funds in this act to seize a firearm based on the existence or the declaration of a state of emergency. It is the wrong way to go.

I suggest to the Senator from Louisiana that I hope he will withdraw this amendment. If he wants to do what the Senator from Idaho suggests, which is to put in an amendment to allow people to protect their own homes with their own legally owned firearms, I am not going to object to that. I don't think we should. But in this situation, in a disaster or an emergency, to say that law enforcement cannot control the flow of firearms--God forbid we face terrorism again in America and those people are armed and the law enforcement agencies don't have the power to take the guns away from them in a state of emergency. What are we thinking?

I hope the Senator from Louisiana will reconsider his position. I will yield the floor at this point and allow him to close, and then we can move to a rollcall if he requests one.

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AMENDMENT NO. 4616

Mr. DURBIN. Mr. President, I offer an amendment to improve the Nation's preparedness and response to natural disasters and terrorist attacks.

This amendment is based on legislation that I introduced last year, the Mass Evacuation Exercise Assistance Act of 2005, S. 2043, which would implement a recommendation in the Senate Homeland Security and Governmental Affairs Committee's report ``Hurricane Katrina: A Nation Still Unprepared'' that Federal agencies work with State and local officials to develop evacuation plans.

That bill would address a gaping hole in our Nation's disaster preparedness by providing grants for evacuation exercises and the implementation of emergency response plans. It would establish a grant program to ensure that cities across America have the resources they need to develop comprehensive evacuation plans; stage drills and exercises to practice and perfect evacuation procedures; and stockpile the materials needed to supply evacuation areas. In addition, the legislation would help cities prepare for future emergencies and evacuations to ensure that their citizens will be evacuated quickly and safely should a natural disaster or terrorist attack occur. Otherwise, like the victims of Hurricane Katrina, citizens can easily become trapped without food or water in a devastated area or along an escape route.

Based on that bill, S. 2043, my amendment today specifically includes evacuation exercises among the list of activities funded by homeland security grants. Evacuation planning and exercises are already permitted, but adding the words ``evacuation preparation and exercises'' to the bill would encourage state and local governments to request homeland security funds for that particular purpose. States and localities need to practice their evacuation plans in order to test and improve their systems before they must be executed in real emergencies.

The Department of Homeland Security recently reported to Congress that many states, territories, and urban areas lack confidence in the adequacy and feasibility of their plans to deal with catastrophic events. The Department's report also highlighted the importance of exercises in preparing first responders for disasters and revealing shortcomings in disaster plans. The Washington Post recently called for increased attention to evacuation exercises and disaster preparation in preventing a reoccurrence of the disaster that followed Hurricane Katrina. According to the Post, the insufficient Federal and local response to Hurricane Katrina was ``a failure of execution, not prediction.''

Therefore, I encourage my colleagues to support this important amendment to strengthen our Nation's emergency and disaster preparedness and response.

AMENDMENT NO. 4619

Mr. DURBIN. Mr. President, I rise to offer an amendment to the fiscal year 2007 Homeland Security appropriations bill. This measure would direct the Secretary of Homeland Security to revise existing procedures and establish new methods for expeditiously clearing the names of individuals who have been mistakenly placed on a terrorist database list, including the Transportation Security Administration's, TSA, No-Fly and Selectee watch list, or who have names identical to or substantially similar to names on these database lists. The Secretary of Homeland Security would report the revised procedures to Congress no later than 6 months after enactment of this bill.

Since the terrorist attacks of September 11, 2001, the TSA and other Government agencies have maintained terrorist database lists containing the names of individuals suspected of posing a risk of terrorism or other threat to airline or passenger safety. The TSA watch list contains the names of individuals who have been placed into two categories. One is the group of individuals in the ``No Fly'' category. Any individual whose name appears in this category will not be permitted to board a commercial flight, as the Department of Homeland Security and other Federal agencies have deemed that person is a known terrorist or someone who has solid ties to terrorist activity. The second category is known as ``Selectees,'' and they may be on this list for a variety of reasons, such as attempting to pass a weapon through a security checkpoint or otherwise exhibiting behavior that presents suspicion that the person may engage in future terrorist acts, even though information about the individual is not sufficient to place them in the ``No Fly'' category.

Unfortunately, thousands of innocent passengers have been placed on the TSA watch list mistakenly or, as is often the case, because they have the same name as others on the list. This prevents those passengers from using the internet or electronic kiosks located at the airport to check in when they fly. This causes these passengers to wait in long lines to be cleared by airline personnel at the check-in counter, sometimes even resulting in missed flights.

The TSA procedure for differentiating the innocent travelers from those who pose a threat is long and still results in the cleared passengers having to check in at the counter and present a clearance letter from the TSA. In other words, after going through the clearance and verification process, innocent passengers still cannot use the internet and kiosks that airlines rely on for passengers to obtain their boarding passes.

I truly hope that as a result of this amendment, the TSA will establish a better system to not only clear innocent passengers from any terrorist database lists, but also to work with the airlines to devise a safe and secure check-in procedure that differentiates between the criminals and the innocent.

I thank Senator Carper for joining as an original cosponsor of my amendment, and I urge all of my colleagues to support it.

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