National Intelligence Reform Act of 2004
NATIONAL INTELLIGENCE REFORM ACT OF 2004
Ms. COLLINS. Mr. President, the debate now will resume on the amendment offered by the Senator from Pennsylvania. As discussed last night, we have an informal agreement that Senator Roberts would be recognized for-is it 25 minutes, I ask Senator Roberts?
Mr. ROBERTS. I thought the agreement was 30.
Mr. REID. Mr. President, I could not hear the Senator from Maine. She said there had been an order that the Senator be recognized?
Ms. COLLINS. Mr. President, if I can respond to the Democratic leader's inquiry, there was an informal discussion last night. There was not an order entered, to the best of my knowledge, but an informal agreement that Senator Roberts would be recognized, and it was either 25 or 30 minutes. I am uncertain.
Mr. ROBERTS. If the distinguished chairman will yield, I am not sure of the timeframe. I think my remarks will be approximately 30 minutes. I hope they will not go over 30 minutes. But that would be my goal.
Mr. REID. My only inquiry here is, Senator Harkin wishes to speak for 10 minutes sometime. We recognize we should have gotten to the bill earlier than we have, but we didn't, and now with the dialog that has gone on Senator Harkin believes he needs to speak, so we need to somehow figure a way to allow him to do that.
The Senator from Maine has the floor. We understand that. But is there some way between the two managers we can get Senator Harkin some time here this morning? Otherwise he is just going to hang around and cause trouble.
Ms. COLLINS. Mr. President, if I could complete my sequencing here. After Senator Roberts, Senator Levin had asked to be recognized on the Specter amendment. They were both here last night, so I want to respect their requests as well.
I wonder if we could arrange for Senator Harkin to speak after the first series of votes today, for 10 minutes.
Mr. REID. That is fine. After the first vote today I ask unanimous consent Senator Harkin be recognized.
The PRESIDING OFFICER. Is there objection?
Mr. REID. Senator Stevens to follow Senator Harkin.
Ms. COLLINS. As part of that sequencing, it would be 10 minutes for Senator Harkin and 10 minutes for Senator Stevens-oh, I am sorry. Senator Stevens is on the bill?
Mr. REID. It would be 15 minutes for Stevens, 15 for Harkin? Or unlimited for Stevens?
Ms. COLLINS. Senator Stevens is going to be speaking on the bill so he has asked for an unlimited amount of time.
Mr. REID. We understand Senator Stevens, being the President pro tempore of the Senate, can speak as long as he wants. Again I repeat, after the first vote Senator Harkin will be recognized for 15 minutes, and then Senator Stevens will be recognized.
The PRESIDING OFFICER. Is there objection? Without objection, it is so ordered.
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Ms. COLLINS. Would the Senator yield briefly for a unanimous consent request?
Mr. ROBERTS. Certainly, I would be more than happy, in the middle of shining the light of truth into darkness, to yield for a unanimous consent request.
Ms. COLLINS. I apologize for interrupting the Senator. Mr. President, I ask unanimous consent that the only amendments
remaining to the bill other than the pending amendments be the two lists I now send to the desk; provided further that they be subject to second degrees that are related to the subject matter of the first degree; further, that all other provisions governing the consideration of this bill remain in effect.
Mr. SPECTER. Reserving the right to object, would the distinguished chairwoman repeat that unanimous consent request?
Mr. REID. Mr. President, basically what we have done, we now have a finite list of amendments. The two cloakrooms have hotlined every Senator, and we have, I am sorry to say, more than 200 amendments, but that is the finite list, and the Senator from Pennsylvania is on the list.
Mr. SPECTER. Parliamentary inquiry: For how many amendments am I on the list?
Mr. REID. Seven.
Ms. COLLINS. Seven plus the pending amendment.
Mr. SPECTER. I thank the Chair.
Mr. ROBERTS. If the Senator will yield, may I ask if the 21 amendments I have drafted, amendments that would improve the nature of the bill, are they included in that list?
Ms. COLLINS. They are indeed.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. COLLINS. Thank you, Mr. President.
I thank the Senator.
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Ms. COLLINS. Mr. President, I certainly understand the intent of the Senator from Pennsylvania in offering this amendment. Indeed, he offered it during the markup of the Governmental Affairs Committee. It was debated at length.
Initially, in considering this issue, I, too, was inclined to believe that the new national intelligence director should have some sort of term of office. However, the testimony we heard through our eight hearings changed my mind in this regard.
Under our legislation, S. 2845, the NID serves as the principal adviser to the President. The individual not only manages the intelligence community and heads up the new national intelligence authority, but serves as the principal adviser to the President. I am stressing that role because I believe that is key to why the director, in fact, should not have a fixed term. It is essential that the NID enjoy the full confidence and trust of the President of the United States. That was a point made by the 9/11 Commission chairman, Tom Kean, at our very first hearing on July 30. But we heard that repeated time and again by our witnesses. All of the former DCIs who came before the committee, representing a variety of times and administrations, were unanimous in their view that the new NID should serve at the pleasure of the President.
The then Acting Director of the CIA John McLaughlin made the point at our September 8 hearing that for the NID to successfully clarify our assignment of serving as the principal adviser to the President, he must enjoy the President's trust and confidence.
Consider a situation where the Presidency changes parties during that 10-year-period. It would be very awkward for a new President of a different party to inherit the national intelligence director from the previous administration. Their world views and philosophy may have nothing in common. Yet the President has to have a close and trusting relationship with the national intelligence director. The President should be able to choose his or her own person for that critical post.
Proponents of having a 10-year term have frequently compared this proposal to the 10-year term of the Director of the FBI. I would note that I asked Director Mueller whether he thought the new NID should have a 10-year term similar to his. He said he did not think a 10-year term or any fixed term was appropriate for the national intelligence director. He said the role of the FBI Director is very different from the role of the national intelligence director.
Over and over again during our hearings, Senator Lieberman and I raised this question with the witnesses because we, too, were trying to reach the right determination. Over and over again, the advice was the same, whether it was the 9/11
Commission, the Acting Director of the CIA, the former Directors of the CIA, or Director Mueller of the FBI. Over and over again, they advised against setting a term.
So we need to create a position where the individual will enjoy the full confidence and trust of the President of the United States. That is the only way that individual can effectively carry out the role he is assigned in this legislation to serve as the President's principal intelligence adviser.
For these reasons, I urge my colleagues to oppose the amendment of the Senator from Pennsylvania.
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Ms. COLLINS. Madam President, I ask unanimous consent that at 2 p.m. today, the Senate proceed to a vote in relation to the Specter amendment No. 3761, regarding a 10-year term, provided that no amendment be in order to the amendment prior to that vote. I also ask consent that following that vote, the Senate proceed to a vote in relation to the Specter amendment No. 3706 regarding the NID consolidation, again with no second degrees in order to the amendment prior to the vote on the first degree. And finally, I ask that the order with respect to the statements of Senator Harkin and Senator Stevens begin following those two votes.
The PRESIDING OFFICER. Is there objection?
Mr. REID. Reserving the right to object, could we change that request to 2:15 p.m. rather than 2 o'clock?
Ms. COLLINS. I would so modify the request.
Mr. REID. The other is in the form of a question. What could happen here is one person could get the floor and keep it until 2:15. We need some ability to make sure there is an equitable distribution of time during the next 2 hours. I am wondering if the chairmen have an idea how we can divide the time. I see a couple of Senators on the floor. Any one of them could get the floor and talk until 2:15.
Ms. COLLINS. I would say to the Senator that we would welcome people coming to the floor with their amendments. Generally, these amendments are not breaking down along party lines.
Mr. REID. We have two votes set at 2:15. My question, though, is, are we going to divide the time prior to that or just let things happen as they will? That is fine with us.
Mr. LIEBERMAN. Madam President, if I may answer the question, my hope is-and I believe it is the chairman's hope-that we will stay on the bill and people will come over and introduce more amendments, that we have more debate between now and 2:15.
Mr. REID. Is my friend saying the debate is basically completed on these two amendments?
Ms. COLLINS. Senator Shelby and Senator DeWine wish to speak.
Mr. REID. If the two managers don't have a concern, I don't either. What we would do is, if the statements are completed, there would be nothing wrong with people setting the amendments aside and offering other amendments.
Mr. LIEBERMAN. Absolutely.
Ms. COLLINS. I believe we are very near the end of the debate.
Mr. REID. I have no objection.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. COLLINS. I thank the Chair.
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Ms. COLLINS. Madam President, I will find the specific language to show the Senator from Ohio. I have the language. The NID would establish collection and analysis requirements for the Intelligence Community, determine collection and analysis priorities, manage and issue collection and analysis tasking, and resolve conflicts in the tasking abilities of the intelligence community. So the language is very clear that the NID would have enhanced authority to resolve the kinds of conflicts that sometimes do occur now on the allocation of satellite resources, for example.
Mr. DeWINE. So it is the Senator's feeling that-and everything is very time sensitive-in a matter of hours this person could make the decision and basically order this to be done?
Ms. COLLINS. The Senator is correct. Perhaps it will be of some comfort to the Senator from Ohio to know that the language in this regard was suggested to our committee by Senator Roberts and comes from his bill. There is very strong language regarding the issue the Senator has raised.
Mr. DeWINE. I appreciate that. If my colleague could answer this: In a real-world situation, when we are dealing with satellites-and we will not go into the countries on the floor-if a decision had to be made in a matter of hours, if we need this information and we need to move from here to there, could that be ordered? I am using the word "ordered." I am not talking about consultation or prayer together. I am talking about ordering it. Can that be ordered? Can this person order this to be done, saying it will be done, I don't care what anybody else says?
Ms. COLLINS. As I indicated to the Senator from Ohio-and I thought I was very clear in answering his question-it says the NID can issue directions in the collection and analysis tasking. I think the language is very clear that the answer is yes.
Mr. DeWINE. I appreciate what the language is, but I want to know, for the history we are establishing today, if my colleague believes that would include the term "order." In other words, a direction that this will be done.
Ms. COLLINS. The term of art is the issue. That is the correct legal language to use. It is adopted from Senator Roberts' bill.
My answer is yes.
Mr. DeWINE. I appreciate that.
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Ms. COLLINS. If the Senator would yield on that point, I do not want the Senator to mistakenly believe there are no changes in our bill with regard to current law. There is a very critical change.
Mr. DeWINE. If I could reclaim my time, the problem is the colleague of the Senator just told me there was not much of a change at all, and this is the problem with the language: One of the Senators saying there is a change and the other saying there is not much change. That is ambiguous, which is the problem, with all due respect to both of my colleagues, who are great friends. It is the language; it is not the Senators.
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Ms. COLLINS. If the Senator will yield?
Mr. DeWINE. I will yield.
Ms. COLLINS. There is a very significant change, as I said to the Senator when he first raised this very important question. We recognize that the current Director of the CIA cannot issue tasking, cannot require the collection of information, under this section of the law. That is why we took language recommended by Senator Roberts, included it in the bill that I believe the Senator from Ohio may have cosponsored, which strengthened that authority by adding the language, "issue and manage collection and analysis tasking." That is not in current law.
Mr. DeWINE. I appreciate that. I will have to go back and study this a little bit more.
I say to my colleague from Maine, I am happy with her answer when she responded to my question, can this be ordered, and her response, I believe, was yes. In other words, under her bill the NID could order the satellite to be moved. Because I think there is a problem.
The evidence is that in the past there have been some problems-I am not saying it is a problem that occurs all the time; it probably gets worked out most of the time-but there have been some problems and I think this needs to be a situation where there has been a problem or there might be a problem, be ordered, it has to be. So I certainly appreciate the response.
Let me ask another question, if I could. Moving to the area of signal intelligence, NSA, let us say the NID, under the Senator's bill, decided it was in our national interest to move the assets, move the resources, from listening to country X to terrorist Y organization. It is the same type of issue but again a real world issue. We are moving our assets; we have to make this decision very quickly in the real world. Could that person order that to be done?
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. If the Senator would yield for a response.
Mr. DeWINE. I yield.
Ms. COLLINS. My answer would be the same. The NID has the authority, has the power, to use the words of Senator from Ohio, to issue these orders, to task these agencies to carry out these directives.
I note that because the NID has the authority to manage the budgets of these agencies, he has a pretty big stick to use as enforcement.
Mr. DeWINE. If we can just talk back and forth a minute, let me interject and then the Senator can respond. I appreciate the progress the Senator has made in regard to the budget, and I think that is very important, but we have seen from our work on the Intelligence Committee, in looking at the intelligence community, a lot of these decisions that are being dealt with in the real world, are very time sensitive so when a budget change is made, we are talking about the next year or 2 years. Those are very important. They are changing directions. That is important. So I congratulate the Senator for making that change.
I am not concerned that the Senator has not done that in her bill. The Senator has done that. What I am concerned about is the execution. For example, I see in the Specter language: direct, oversee, execute the national intelligence program. Then he goes on to say: supervise, direct, and control the operations of the Central Intelligence Agency, the National Security Agency, et cetera.
So what I see in the Specter language that gives me a great deal of comfort is "supervise, direct, control operations." To me, "operations" is the key language because now we are dealing with things that are very time sensitive.
What I worry about is not the long-term planning. I am convinced that the Senator has taken care of that and I congratulate her for that. What I worry about is real world examples that I have now, such as we are listening to one country, or we have assets over here that we need to move very quickly over here and target a terrorist organization, and say we have limited assets, can we do that. It is a hypothetical, but could that decision be made?
Ms. COLLINS. Madam President, I think the Senator from Ohio is raising excellent, important questions in this debate, but he is creating a misimpression of what the bill does with regard to budget authority.
This is not 1 year off or 2 years off. The NID has budget execution authority, not just putting the budget together for presentation and recommendation to the President; he executes the budget as the year goes by. He has strong authority to reprogram funds with congressional approval and notification, I hasten to say, and to transfer funds.
He has extensive authority to transfer personnel. He has the right under our bill to appoint the heads of these agencies with concurrence from the Secretary of Defense. That is a major change from current law.
If the Senator from Ohio is saying, as he is, that the NID should have direct line authority over the day-to-day operations of these combat support agencies, I disagree with the Senator from Ohio. I believe it does not make sense and, in fact, the NID could not handle running these agencies day to day. As Senator Levin indicated earlier, you would have to create an enormous supervisory staff within the office of the NID if you were going to transfer that authority from the Secretary of Defense. Clearly, the NID has the authority to direct the collection and analysis of information by the heads of these agencies, but I do not think he should be running them day to day.
Mr. DeWINE. If I could follow that up with a question, since the Senator raised it-and I think I know her answer, but I want to make sure I do understand her answer-talking about moving people around, according to the newspapers-this is what is published in the newspapers-there is a problem with a backlog apparently in listening to tapes of intercepts, at least that is what has been in the newspaper. Would the NID have the authority to move linguists from one agency to another to correct that problem? For example, if they had to, they could move them from the DIA to the CIA?
Ms. COLLINS. Absolutely.
Mr. DeWINE. This person, he or she, could pick up the phone and say: We are going to move 50 people, 100 people from over here to over there?
Ms. COLLINS. Absolutely.
Mr. DeWINE. This person does not have to call the SECDEF, does not have to do anything?
Ms. COLLINS. If the Senator will yield so I can respond to his question.
Mr. DeWINE. Surely.
Ms. COLLINS. There is very strong authority for the NID to transfer personnel who are working within the national intelligence program throughout the Federal Government and, indeed, I would envision the staffing of the National Counterterrorism Center would come from the NID taking linguists, analysts, operatives, collectors-all sorts of expertise-from the various intelligence agencies. And I know for a fact we need to give the NID that power because I visited with the head of the Terrorist Threat Integration Center who does not have that power and finds it very difficult to get the personnel resources he needs.
Mr. DeWINE. I appreciate the answer. So the Senator is saying this person can actually go in to DIA and say: I want those people. I want them. We are going to take them from DIA, and we are going to put them over here at CIA because I know best what the priorities need to be, and this is national security, and we are going to get it done.
Ms. COLLINS. Will the Senator yield for a response?
Mr. DeWINE. I certainly will.
Ms. COLLINS. The DIA employees who are part of the national intelligence program, yes, the answer is yes. DIA employees who are part of DOD's tactical intelligence programs, which are outside the scope of the authority of the NID, the answer in that case would be no. So it depends. But if they are part of the national intelligence program, which thousands of DIA employees are, the answer is yes.
Mr. DeWINE. I appreciate that. What I do not understand, though, is what I thought I heard earlier on about the Senator's distinction between tasking and control. That does sound like control to me. The Senator from Maine is saying they can task but they cannot control. Basically, that sounds like control to me if you can move someone.
Ms. COLLINS. I disagree with the Senator, so I do not know how to respond. I was saying the NID does not run the day-to-day, daily operations of the NSA, for example.
Mr. DeWINE. And I appreciate that. But in direct response to my question, the Senator is saying that person could, in fact, make that command decision, pick up the phone and say, "We are moving 50 people," and that would be done, and that would be it. I want to make sure on the record because I think it is going to be very important 2 years from now or 18 months from now, and I would hate for the NID person to come before our committee and say: "I can't move people around."
Ms. COLLINS. If the Senator will yield for a response.
Mr. DeWINE. I am happy to yield.
Ms. COLLINS. Madam President, I direct the Senator from Ohio to the exact language in the bill. On page 27, starting on line 21:
© in accordance with procedures to be developed by the National Intelligence Director, transfer personnel of the intelligence community funded through the National Intelligence Program from one element of the intelligence community to another element of the intelligence community;
I think that language is crystal clear that the NID could, indeed, take a linguist from the counterterrorism division of the FBI and transfer that individual to the National Coun ter ter ror ism Center, or an analyst from DIA who is funded through the national intelligence program and shift that individual to the counterterrorism center. I think it is very clear.
Mr. DeWINE. I thank my colleague from Maine for answering these questions. As always, she is very eloquent and has been very thoughtful in her questions and her work on the bill. I congratulate her for the good work she has done.
Madam President, I do appreciate my colleague's answers. I will be voting in favor of the Specter amendment simply because I think it is more clear. I think it adds something to this bill. I think it makes it more specific. It is clear. When we are done with our work, then it will be up to the great bureaucracy, the men and women who are out there to defend us-and I do not use "bureaucracy" in a derogatory way at all; these are great people doing wonderful work out there who are defending us-it will be up to them to make this work. We have an obligation to do our best to give them something that will work and to give them the language that will allow the clearest lines of authority.
I believe if you take the Collins-Lieberman bill, which is good work, and you then add the Specter amendment, the Specter amendment makes it clearer, makes it more precise, and makes the lines of authority much easier to understand.
I believe it also will deal with a concern I have had for a long time, as we saw this reform coming, and that is my fear that we would create this new position, give them authority, and do a pretty good job, but not quite give them all the authority this
person needs.
We have had the opportunity in the Intelligence Committee to listen to some of the things that have gone wrong for the last few years, and there have been a lot of things that have gone wrong. It is not only organization. It is not only line authority. It is not only the fact that the DCI did not have enough power, but that is part of it. This bill goes a ways to deal with that. I believe the Specter amendment improves it further and makes it clearer, and is the right way to go.
Somebody has to be in charge. The buck has to stop somewhere. Never again do we want to be in a position where it is not clear who is in charge. Never again does this country want to be in a position where the top person in intelligence doesn't have all the authority he or she needs to protect us, to protect our children, to protect our families. The Specter amendment will make it very clear where the buck stops. The buck will stop with this person whom we are now calling the NID and who is called the NID under the Collins-Lieberman bill. So I will vote in favor of the Specter amendment. I urge my colleagues to vote in favor of it as well.
I yield the floor.
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Ms. COLLINS. Mr. President, I know the Senator from Arizona is in the Chamber to offer his amendment so I will speak only very briefly. Senator Lautenberg's amendment is an improvement over the amendment offered by the Senator from Pennsylvania because it is a shorter term and it does allow the President to remove the NID without specifying a cause, but I still find it problematic.
We are talking about the individual who is going to be the principal adviser to the President. The witnesses were virtually unanimous in advising us that that individual has to have the trust and confidence of the President and that it would be a mistake to set a term.
I argue further against this amendment in the context of the Specter amendment. In light of the fact that the Senator from Arizona is waiting, I will not repeat those arguments at this time.
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Ms. COLLINS. Mr. President, I ask unanimous consent that there be 2 minutes equally divided between the two votes.
The PRESIDING OFFICER. Is there objection? Without objection, it is so ordered. There will be 2 minutes, equally divided.
Mr. DOMENICI. Between the votes. Not on the first amendment.
Ms. COLLINS. Prior to the second vote.
The PRESIDING OFFICER. Without objection, it is so ordered.
AMENDMENT NO. 3761
Ms. COLLINS. Mr. President, under the previous order we are now going to proceed to a vote on Senator Specter's amendment, No. 3761. That is the amendment that would set the 10-year term for the national intelligence director. I move to table the amendment.
I ask for the yeas and nays.
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Ms. COLLINS. Mr. President, I would like to split the 1 minute on the opponents' side, 30 seconds for myself and 30 seconds for the Senator from Connecticut.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. COLLINS. I ask the Senator from Pennsylvania, do you want to go first?
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, this amendment gives the national intelligence director authority to supervise, direct the kind of managerial authority which is indispensable if the national intelligence director is to be effective.
Of those of us who have dealt with the Central Intelligence Agency, Senator Roberts, the current chair of the committee, is forcefully in favor of this amendment, as is Senator Shelby, former chairman of the committee, as am I. Very forceful arguments were made today by members of the committee-Senator Hatch, Senator Bond, Senator DeWine.
But if we are really to bring the intelligence community under management, if we are really to have the kind of coordination, to have all of the information in one locale, where 9/11 could have been prevented, and to have accountability, it is indispensable to do more than give budget authority, which is all the committee bill does, but to give the national intelligence
director the authority to supervise, direct real management authority to get the job done.
The PRESIDING OFFICER. The Senator's time has expired.
The Senator from Maine.
Ms. COLLINS. Mr. President, in deciding to keep the NSA and the NGA within the Department of Defense, we were mindful of the fact that these agencies are combat support agencies. We do not want to sever the link between these agencies and the Secretary of Defense. We have already given the NID strong power in terms of budget, in terms of appointing the heads of these agencies, with concurrence from the Secretary of Defense. I urge opposition to the amendment.
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Ms. COLLINS. Mr. President, I thank the Senator from Arizona, the Senator from Montana, and the Senator from Mississippi for working on this issue. I very much appreciate that. I urge adoption of the amendment by a voice vote.
The PRESIDING OFFICER. Is there further debate on the amendment?
If there is no further debate, without objection, the second-degree amendment is agreed to.
The amendment (No. 3773) was agreed to.
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Ms. COLLINS. Mr. President, I commend the Senator from Arizona for his amendment. It would implement five important recommendations of the 9/11 Commission that would improve our national preparedness. This amendment would support efforts underway to ensure that Federal, State, and local entities all use what is known as the incident command system. I know that our first responders in Maine are leaders in the Nation in using and training with this system. They have told me how critical it is for effective response to terrorist attacks for there to be a working command structure in place. This can only be accomplished with training and organization before an attack or other such emergency.
Senator McCain's amendment would enable the first responders protecting our Nation's Capital to save lives regardless of which side of the Potomac they happened to be on. It does that by establishing an interstate mutual aid compact in the Washington, DC area. It would encourage coordination and communication in urban areas. It would encourage private sector preparedness and help private industry to be better prepared for an attack as well. It would ensure that a nonregulatory, voluntary program be established to promote preparedness within the private sector, using a consistent methodology to address preparedness.
Finally, it encourages the Department of Homeland Security to take a hard look at critical infrastructure, which the Department is already doing, and report to Congress about its findings.
I urge my colleagues to accept the amendment.
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Ms. COLLINS. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. COLLINS. Mr. President, I want to give my colleagues an update on an amendment that was offered yesterday. It is an amendment that was offered by Senator Wyden on behalf of himself, Senator Snowe, Senator Graham, and Senator Lott. I believe we have reached an agreement on a compromise to that amendment, which deals with declassification. Actually, I recall the Presiding Officer, Senator Cornyn, is also a cosponsor of the amendment.
We have been able to work out an alternative to the amendment. We are just waiting for language to come from legislative counsel. It is my hope, and I believe the hope of Senator Lieberman, that we will be able to dispose of that amendment this afternoon.
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Ms. COLLINS. Mr. President, I express my appreciation to Senator Wyden. He is always so good to work with on so many issues, and we have enjoyed working on this one as well.
I want to recognize that Senator Lott was also very involved in the negotiations and working with Senator Lieberman and me to modify this amendment in a way to preserve the goal of the amendment, and yet to address some concerns we had about creating a new board, unnecessary bureaucracy, or some duplication.
As I indicated when Senator Wyden first offered his amendment, I believe he is addressing a very real problem, and that is improving the way we classify and declassify documents. I know the members of the Intelligence Committee have been very frustrated with the process that they went through in developing a lengthy report, only to have so much of it redacted and to have no good way of appealing those redactions, no good way of challenging what many members of that committee, on both sides of the aisle, viewed as excessive secrecy or excessive classification.
I have been concerned that the original amendment intruded unnecessarily into the President's constitutional prerogative and duplicated some of the provisions in our bill. I believe the changes we have worked out so cooperatively go a very long way toward addressing the concerns we had while advancing the goal.
Rather than creating a new board to review the classification policy, Senator Wyden's amendment would now ensure that Congress has an opportunity to make comments regarding the Presidential review of classification policies already established under the Collins-Lieberman bill, and even more importantly to the Senator who has said we need an independent place for Congress to go to bring appeals regarding classification decisions, the revised amendment has agreed to build upon a board that already exists, the Public Interest Declassification Board. The amendment would change the name of that board to the Independent National Security Classification Board. This board was established in 2001, but it is still being put into place.
Under the Wyden amendment, it will have specific authority to hear appeals of classification decisions from specified congressional committees. The board would then make a recommendation to the President, which the President could either accept or reject. If the President rejects the board's decision, then the President, as the Senator indicated, would have to send a written justification of that decision to Congress. This framework helped to address some of the concerns we had about the original amendment.
I will note that this is not the administration's favorite amendment, even in the revised form, but I believe we have struck a fair balance and I am prepared to recommend that we accept the amendment once we get it. I understand it is going to be here momentarily. There were a few technical glitches.
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Ms. COLLINS. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Ms. COLLINS. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
AMENDMENT NO. 3727
Ms. COLLINS. Mr. President, on behalf of Senator Cornyn, I send an amendment to the desk, and I ask unanimous consent that the pending amendment be set aside.
The PRESIDING OFFICER. Without objection, it is so ordered. The clerk will report.
The legislative clerk read as follows:
The Senator from Maine [Ms. COLLINS], for Mr. Cornyn, proposes an amendment numbered 3727.
Ms. COLLINS. Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: to amend provisions of law originally enacted in the Clinger-Cohen Act to enhance agency planning for information security needs)
At the appropriate place, insert the following:
SEC. __. AMENDMENTS TO CLINGER-COHEN PROVISIONS TO ENHANCE AGENCY PLANNING FOR INFORMATION SECURITY NEEDS.
Chapter 113 of title 40, United States Code, is amended-
(1) in section 11302(b), by inserting "security," after "use,";
(2) in section 11302©, by inserting ", including information security risks," after "risks" both places it appears;
(3) in section 11312(b)(1), by striking "information technology investments" and inserting "investments in information technology (including information security needs)"; and
(4) in section 11315(b)(2), by inserting ", secure," after "sound".
Ms. COLLINS. Mr. President, this proposal amends the Cohen-Clinger Act to explicitly require Federal agencies to emphasize information security from the earliest possible stages of a new system's IT capital planning and investment decisionmaking process.
The Office of Management and Budget has instructed agencies through its budget guidance that information security must be a vital part of the capital planning and investment control process. Amending the Cohen-Clinger Act to codify this guidance will ensure that the law reflects a certain threat environment in cyberspace and requires that information security be an integral part of the Federal acquisition process for the long term.
Security should be reinforced as we migrate toward a more interoperable environment. I believe this amendment is helpful. It is my understanding that it has been cleared on both sides.
Mr. LIEBERMAN. Mr. President, this is a good amendment. I thank Senator Cornyn for offering it. I urge its adoption.
The PRESIDING OFFICER. Is there further debate?
If not, the question is on agreeing to amendment No. 3727.
The amendment (No. 3727) was agreed to.
Ms. COLLINS. I move to reconsider the vote, and I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Ms. COLLINS. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Ms. COLLINS. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
AMENDMENT NO. 3763
Ms. COLLINS. Mr. President, on behalf of Senator Coleman, I send an amendment to the desk and ask for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Maine [Ms. COLLINS], for Mr. Coleman, proposes an amendment numbered 3763.
Ms. COLLINS. Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: to strike the amendments made by section 202, regarding the National Homeland Security Council)
On page 117, strike line 1 and all that follows through page 118, line 7.
Ms. COLLINS. Mr. President, Senator Coleman has offered an amendment that would strike the language in our bill that merges the Homeland Security Council into the National Security Council. I note that the administration yesterday in its Statement of Administration Policy, in which it endorsed passage of our legislation, expressed considerable concern about the provisions that would reorganize the President's internal policy staff by merging the National Security Council and the Homeland Security Council. The administration feels strongly that Congress should not legislate and make permanent the internal organization of the President's own executive offices or otherwise limit the flexibility needed to respond quickly to threats or attacks.
In looking further at this issue, I agree with the concerns raised by the administration. Senator Coleman's amendment striking the merger of those two councils within the Executive Office of the President is acceptable to me.
That is what his amendment would accomplish. I believe the amendment has been cleared on both sides and I urge its passage.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. LIEBERMAN. Mr. President, I rise to support the amendment. I thank Senator Coleman for submitting it. The Homeland Security Council was, as I recall, created by the President and then made into statute as part of the Homeland Security Act that created the Department of Homeland Security. It was meant to be an advisory board to the Secretary of Homeland Security and also a place to which the Secretary could bring representatives of other departments that might not be in the security community normally, such as the Department of Health and Human Services, in terms of bioterrorism, for instance. So I think it has played an important role.
The 9/11 Commission report very gently recommended that we consider merging the Homeland Security Council into the National Security Council. Senator Coleman raises a concern that I think is justified as to, one, whether all of these items ought to be on the agenda of the National Security Council, which is already quite busy; two, that this council has a constructive role to play uniquely for the Department of Homeland Security, and insofar as one of the thoughts behind the Commission's suggestion was that merging the Homeland Security Council into the National Security Council would provide a forum where disputes between departments could be resolved, the President, of course, always reserves the right to call the heads of the relevant departments together to do that.
So the long and the short of it is, I think it is too early to-what was the Mark Twain line? The rumors of my death are premature, or something like that. I think the same could be said of the Homeland Security Council. There is a reason for it to live on.
Senator Coleman's amendment achieves that, and I support it.
The PRESIDING OFFICER (Mr. ALEXANDER). Is there further debate?
If not, the question is on agreeing to amendment No. 3763.
The amendment (No. 3763) was agreed to.
Ms. COLLINS. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Ms. COLLINS. Mr. President, I ask unanimous consent the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
AMENDMENT NO. 3704, AS MODIFIED
Ms. COLLINS. Mr. President, on behalf of Senator Wyden, I send a modification of the Wyden amendment No. 3704 to the
desk. I ask unanimous consent that the amendment be so modified.
The PRESIDING OFFICER. Without objection, the amendment is so modified.
The amendment (No. 3704), as modified, is as follows:
On page 134, line 14, insert "issue guidelines" before "on classification"
On page 134, strike lines 16 and 17 and insert the following:
commonly accepted processing and access controls, in the course of which review, the President may consider any comments submitted by the Select Committee on Intelligence, the Committee on Armed Services, the Committee on Foreign Relations of the Senate, and the Permanent Select Committee on Intelligence, the Committee on Armed Services, and the Committee on International Relations of the House of Representatives regarding-
(i) the scope of the review the President should undertake in formulating the guidelines under this subparagraph; and
(ii) the substance of what guidelines should be issued.
On page 177, after line 17, add the following:
SEC. 226. CONGRESSIONAL APPEALS OF CLASSIFICATION DECISIONS.
(a) REDESIGNATION OF PUBLIC INTEREST DECLASSIFICATION BOARD AS INDEPENDENT NATIONAL SECURITY CLASSIFICATION BOARD.-(1) Subsection (a) of section 703 of the Public Interest Declassification Act of 2000 (title VII of Public Law 10-567; 50 U.S.C. 435 note) is amended by striking " 'Public Interest Declassification Board' " and inserting " 'Independent National Security Classification Board' ".
(2) The heading of such section is amended to read as follows:
"SEC. 703. INDEPENDENT NATIONAL SECURITY CLASSIFICATION BOARD.".
(b) REVIEW OF CLASSIFICATION DECISIONS.-
(1) IN GENERAL.-The Independent National Security Classification Board shall, pursuant to a request under paragraph (3), review any classification decision made by an executive agency with respect to national security information.
(2) ACCESS.-The Board shall have access to all documents or other materials that are classified on the basis of containing national security information.
(3) REQUESTS FOR REVIEW.-The Board shall review, in a timely manner, the existing or proposed classification of any document or other material the review of which is requested by the chairman or ranking member of-
(A) the Committee on Armed Services, the Committee on Foreign Relations, or the Select Committee on Intelligence of the Senate; or
(B) the Committee on Armed Services, the Committee on International Relations, or the Permanent Select Committee on Intelligence of the House of Representatives.
(4) RECOMMENDATIONS.-
(A) IN GENERAL.-The Board may make recommendations to the President regarding decisions to classify all or portions of documents or other material for national security purposes or to declassify all or portions of documents or other material classified for such purposes.
(B) IMPLEMENTATION.-Upon receiving a recommendation from the Board under subparagraph (A), the President shall either-
(i) accept and implement such recommendation; or
(ii) not later than 60 days after receiving the recommendation if the President does not accept and implement such recommendation, transmit in writing to Congress justification for the President's decision not to implement such recommendation.
(5) REGULATIONS.-The Board shall prescribe regulations to carry out this subsection.
(6) EXECUTIVE AGENCY DEFINED.-In this section, the term "Executive agency" has the meaning given that term in section 105 of title 5, United States Code.
Ms. COLLINS. Mr. President, this modification was debated earlier this evening. There is no further debate on the amendment as modified.
The PRESIDING OFFICER. The question is on agreeing to the amendment, as modified.
The amendment (No. 3704), as modified, was agreed to.
Ms. COLLINS. I move to reconsider the amendment and I move to lay it on the table.
The motion to lay on the table was agreed to.
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Ms. COLLINS. Mr. President, I thank the distinguished chairman of the Senate Armed Services Committee for coming forward this evening and laying down this amendment. He has explained very clearly the purpose. I very much appreciate that explanation.
As the Senator is aware, the ranking member of the committee had a commitment for this evening. I would like to hold the amendment over until tomorrow morning. But I am very grateful to the Senator for laying down the amendment this evening so that we can continue to make progress on this bill. As always, he has given his proposal a great deal of thought. I appreciate the parallels that he is drawing to the provisions of the Goldwater-Nickles Act and the fact that the members of Joint Chiefs are allowed to present their views independently to Congress and to the President. I very much appreciate his laying down the amendment tonight. I look forward to having further consideration in the morning.
Mr. WARNER. Mr. President, I thank the distinguished chairman for her views.
I ask unanimous consent that Senator Stevens be listed as a cosponsor of the amendment. There may be others in due course that would like to do so.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WARNER. Mr. President, I am privileged to offer one of the first amendments. I have other amendments of which I think the chairman is aware. We are going to comply with her request and the leadership to have the text before them within the amendments that are established. I want to be very constructive as a working partner as we move forward with this important piece of legislation.
Ms. COLLINS. Mr. President, the distinguished chairman of the Senate Armed Services Committee is always constructive in every way. I very much appreciate the thought and the knowledge he has and the depth with which he explores important issues.