Implementing Recommendations of the 9/11 Commission Act of 2007

Floor Speech

IMPLEMENTING RECOMMENDATIONS OF THE 9/11 COMMISSION ACT OF 2007 -- (Senate - July 26, 2007)

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Mr. DURBIN. Mr. President, I commend Senators Lieberman and Collins for their leadership and the members of the Conference Committee for their work on this important legislation.

More than five years after 9/11--despite tens of billions of dollars spent--America's ports, rails, airports, borders, nuclear powerplants and chemical plants are still not as safe as they could be.

It has been almost 3 years since the 9/11 Commission issued its final recommendations.

This legislation is a major step toward fully implementing the recommendations of the bipartisan 9/11 Commission. It changes course after years of inadequate action on critical homeland security needs.

The bill will make America more secure because it: provides funding for first responders; makes it harder for potential terrorists to enter the United States; helps secure our rail, air, and mass transit systems; and improves intelligence and information sharing at all levels of law enforcement.

I am especially proud to highlight a few provisions in the bill that I have championed for some time.

The legislation specifies that States can use Federal grants to design, conduct, and evaluate mass evacuation plans and exercises.

MASS EVACUATION

As we learned from Hurricanes Katrina and Rita, there is no substitute for being prepared.

Last fall, Rockford, IL, was flooded after heavy storms. Public safety workers were able to vacate an entire neighborhood quickly and safely because they were prepared.

They had an evacuation plan. They knew where they would take people. They had a mobile command center set up there within hours.

Most cities and States have evacuation plans. But you need to have training drills and exercises to identify where the plan breaks down. Evacuation exercises allow you to work out solutions before lives are at risk in a real emergency. We may only have one chance to get it right.

CIVIL LIBERTIES

The 9/11 Commission recognized that one of the biggest challenges we face in fighting the war on terrorism is protecting civil liberties. The Commission said:

While protecting our homeland, Americans should be mindful of threats to vital personal and civil liberties. This balancing is no easy task, but we must constantly strive to keep it right.

To help keep this balance right, the Commission wisely recommended the creation of a board to ensure that the Government does not violate privacy or civil liberties. Three years ago, when Congress passed the first 9/11 bill, it included a provision I worked on to create a Privacy and Civil Liberties Oversight Board. The bill that the Senate passed would have created a strong and independent board with subpoena power, a full-time Chairman, and a broad statutory mandate, among other things.

Unfortunately, House Republicans were able to water down the bill to reduce the independence and authority of the Privacy and Civil Liberties Board. As a result, the board has not been an effective check on this administration, which has shown reckless disregard for the constitutional rights of innocent Americans.

The conference report we consider tonight will fix those deficiencies.

Throughout American history, in times of war, we have sacrificed liberty in the name of security. As the 9/11 Commission said, ``The choice between security and liberty is a false choice.'' We can be both safe and free. I hope the new and improved Privacy and Civil Liberties Oversight Board will help make that a reality.

RISK-BASED

Two years ago Congress earned an F from the 9/11 Commission for creating a Homeland Security Grant Program that is not sufficiently focused on risk.

This bill puts more emphasis on risk as a factor in distributing homeland security grants. Right now, homeland security grants are based on a variety of factors--but risk is one of many.

INFORMATION SHARING

The 9/11 Commission strongly recommended that we change the culture in Government, so that agencies talk to each other and share information so everyone can do their jobs.

In 2001, the FBI had information about the hijackers that was never shared with local officials.

The conference report responds to that challenge. This bill: makes the Office of Information Sharing permanent, establishes an interagency coordination group on threat assessment, and makes it easier to share information between State and local government and across Federal agencies.

I am pleased that conferees made the program manager for the Information Sharing Environment (ISE) permanent and authorizes funds and staff to carry out the ISE mission.

The bill also calls for progress reports to Congress on the Information Sharing Environment.

``JOHN DOE'' PROVISION

I will support the conference report, but I want to make clear that it contains one provision that has not been properly written or carefully considered. The so-called John Doe provision would give blanket immunity to citizens and Government officials who engage in racial profiling, as long a court finds they were acting in good faith.

The proponents of this legislation claim that it is necessary because citizens will not report suspicious behavior if they are afraid they will be sued for racial profiling.

With all due respect, this is a solution in search of a problem. There is no evidence that people are reluctant to file complaints about suspicious behavior and there is no epidemic of nuisance lawsuits against people who do so.

In fact, all the evidence points in the opposite direction--vigilant Americans are playing a crucial role in homeland security.

The reality is that this provision is targeted at one pending lawsuit. There is no indication that the courts are incapable of handling this or any other racial profiling lawsuit. There are immunity rules that the courts have developed over many years and there is no evidence that those rules are not working to protect innocent people from nuisance lawsuits.

I cannot judge the merits of this particular lawsuit, but I do know this: Congress should not be in the business of passing legislation to affect the outcome of individual cases that are pending in court. We should not substitute our judgment for that of a jury of American citizens, doing their civic duty, who will hear and weigh all of the relevant evidence.

Remember the last time Congress did this? It was the Terri Schiavo case. That should be a warning to Congress not to go down this road again.

Its proponents claim that the John Doe provision is necessary so that people would not be deterred from reporting suspicious behavior. But this legislation will have another chilling effect: It will deter victims of racial profiling from seeking justice in the courts.

This legislation would require a plaintiff to pay attorneys fees to a defendant if the defendant who allegedly engaged in racial profiling acted in
good faith. Let's be clear: even if a defendant acted in bad faith, many victims of racial profiling will not file a lawsuit because they cannot take the risk that they will be forced to pay attorney's fees if they lose.

Despite what its proponents claim, the John Doe provision applies to more than just terrorism cases. In fact, it applies to any activity related to a threat to a passenger vehicle or its passengers. As a result, this provision will probably be invoked by every defendant in every future racial profiling case.

I am especially disappointed that this legislation was inserted into the 9/11 conference report without any consideration of the concerns I have outlined. This provision was not in the 9/11 bill that the Senate passed. In the Senate, it has received no hearings, no debate, and no votes.

The John Doe bill falls under the jurisdiction of the Judiciary Committee, of which I am a member. Senator Leahy, the chairman of the Judiciary Committee, asked that it not to be included in the 9/11 conference report so that we could hold hearings on it, but unfortunately his request was not granted.

This reminds me of another controversial bill that was inserted into a conference report without any debate in the Senate. It's called the REAL ID Act, and it is now opposed by States across our country.

I will be tracking closely how this legislation is implemented. I suspect that, as with REAL ID, the John Doe law will be met with rising opposition across this country as more and more Americans learn about it.

CLOSE

The 9/11 Commission gave Congress a critically important job.

The Commission charged Congress with making structural changes to close the gaps in America's homeland security defenses. This legislation responds to that challenge, and I support final passage of the conference report.

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