Joseph Lieberman

Mr. LIEBERMAN

Mr. LIEBERMAN. I will.

Mr. LIEBERMAN. Through the courtesy of the Senator from Tennessee.

Mr. LIEBERMAN. Will the Senator yield for a question?

Mr. LIEBERMAN. Let me say something first and then ask the question. The effect of the Nelson-Chafee-Breaux amendment is to add these two criteria for a judgment by the President in the specific case of the 43,000 currently unionized employees who will be moved to the new Department of Homeland Security. That is all. The reason it does that is there is some apprehension, even though they have been doing these jobs for years and no previous President has found they are inconsistent with national security and being a member of the union, they want the President to make that determination. But here is the point I want to make about the court case. There is actually no lessening of the President's authority because the underlying statute says in title 5 7103(b)(1): The President may issue an order excluding any agency or subdivision thereof from coverage under this chapter-- Which is the collective bargaining chapter.

Mr. LIEBERMAN. It is 7103(b)(1). Then it says: if the President determines that-- And in the current statute which relates to the entire Federal workforce, it says: the agency . . . has as a primary function, intelligence, counterintelligence, investigative, or national security work, and the provisions of this chapter-- Collective bargaining-- cannot be applied to that agency . . . in a manner consistent with national secur- ity. . . . The Nelson-Breaux-Chafee amendment adds two other factors solely with regard to the employees who will be transferred to the new Department: The missions and responsibilities, not of the individual jobs but the agency or subdivision of change, and a majority of the employees within the agency have as their primary duties activities related to terrorism. Here is the point I want to make as I read it. That is why I think there is not even a hair of difference between us in what we are saying. The basic operative point here is the language in the current statute--``if the President determines that.'' It is up to the President to determine the standards under the current law and the two standards for employees transferred to the new Department that Nelson- Chafee-Breaux adds. The Federal court has said the President's determination under this statute is not reviewable. That goes not just for national security, it goes for the two basic underlying and the two additional requirements that are added under this provision for employees of the new Department. This is not effectively appealable. In other words, Senators Nelson, Chafee, and Breaux tried to come up with an amendment which responded to the concerns expressed by the White House and our colleagues on the floor that in some way the committee's bill in this regard was lessening the national security powers of the President by subjecting it to an appeal to the Federal Labor Relations Authority. We cut that out now. I must say, I believe because we are so interested in getting this done we have been quite flexible on this side. I ask my colleagues on the other side, particularly the Senator from Texas, to take a close look at this because of the urgency of creating a homeland security agency. Let's try to find common ground and agree the President has essentially unassailable authority under this provision, exactly what he wants. It gives a small degree of what might be called due process to Federal homeland security workers against an arbitrary action by a President. Frankly, under this wording and based on that court decision, the odds are a President could act arbitrarily here, too, if he invoked national security. I thank the Senator from Tennessee for yielding. I guess my question is: Does the Senator not agree with me?

Mr. LIEBERMAN. Looking at that section--incidentally, the language, the Nelson-Chafee-Breaux amendment amends decisions made under 7103(b)(1). (b)(2) I think gives the President authority to suspend any provision of the chapter specifically with respect to any installation or activity located outside the United States of America. It is not diminished at all, not really affected at all.

Mr. LIEBERMAN. In responding to the Senator from Tennessee, my reading of that section (2) is simply to restate the President's authority, not only with regard to employees of the Federal Government within the United States of America and the District of Columbia but outside the United States of America and the District of Columbia.

Mr. LIEBERMAN. I think that is right.

Mr. LIEBERMAN. I thank the Chair. I want to respond, and then I will yield the floor. I know other Members in the Chamber wish to speak. I appreciate what the Senator from Utah has said because I think he has come to the nub of it. Part of what this dialogue has reflected is how much people on our side, including the folks from the Federal worker organizations, want to get this bill passed. There has been a substantial change from the original wording of the committee bill, which did allow an appeal to the Federal Labor Relations Authority from the decision of the Secretary--or administration in these cases. Effectively what we have done is to add two more criteria for the President to base his decision on as to whether union membership is inconsistent with national security, but we have not diminished the President's authority to make that decision. In other words, the same high authority he has had, sustained by the court decision we have cited and the two criteria that are there now, he has that same power under the two we have added. The Senator asks: What have we done then? By adding two more standards, what we have done is to establish a kind of protection against truly arbitrary use by some future President of this extraordinary power the statute gives. What is the protection against arbitrary? The President has to make the case that he has determined, and let me read from the Nelson-Breaux-Chafee amendment: Mission and responsibilities of the agency or subdivision has materially changed-- and this is only with regard to these employees who have now been moved to this Department; the President's authority remains unchanged with regard to every other Department--and that a majority of employees within the agency or subdivision have jobs directly related to terrorism. I agree with the Senator. I have forgotten the word he used, and I wish I could recall it, but the Senator is wondering now why we are spending all of this time arguing about this. In my opinion, we should not. We should be adopting the whole bill and sending it to a conference committee so we can get it done soon and everybody, beginning with the President, can claim a victory in the name of national and homeland security.

Mr. LIEBERMAN. Will the Senator yield for a very brief question?

Mr. LIEBERMAN. It is a factual question. I think the Senator is confusing the situation.

Mr. LIEBERMAN. The Senator refers to the power of the President in reference to waiving elements of collective bargaining agreements. That is not affected by this section. I think it is the right to join unions or remain in unions the President can override here, not elements of the collective bargaining agreement.

Mr. LIEBERMAN. Objection.

Mr. LIEBERMAN. Madam President, while the Senator from Texas is on the floor, I want to renew a unanimous consent proposal I made earlier when he was off the floor which would give him the up-or-down vote he wants on the President's proposal. It is highly unusual. He is asking to deprive the Senate of the opportunity to amend. No one is infallible, but to give him the offer. Madam President, I ask unanimous consent that immediately upon the disposition of Senator Nelson's amendment, Senator Gramm be recognized to offer a further second-degree amendment, which is the text of the President's proposal as contained in amendment No. 4738, and that the Senate then vote immediately on his amendment. That should give the Senator from Texas what he wants--an up-or-down vote on the President's proposal.

Mr. LIEBERMAN. So my question back to the Senator from Texas is why deprive the Senator from Nebraska and the Senator from Rhode Island and the Senator from Louisiana the opportunity to have a vote on their amendment?

Mr. LIEBERMAN. Madam President, does the Senator from Texas understand that under the unanimous consent request I have proposed the vote would be on the President's proposal, the Gramm-Miller substitute, unamended, second degree?

Mr. LIEBERMAN. Of course, I am working with colleagues on both sides of the aisle and with the White House to see that we can fashion a strong resolution giving the President authority to take whatever actions are necessary in Iraq. But will the Senator from Oklahoma help me understand, what did the President mean when he said, at a fundraiser for Mr. Forrester, in New Jersey, Monday: ``And my message to the Senate is: You need to worry less about special interests in Washington and more about the security of the American people''? At a welcome ceremony in Trenton, Monday, he said: ``The House responded, but the Senate is more interested in special interests in Washington and not interested in the security of the American people.'' At a meeting with Cabinet members on Tuesday, the President said: ``My message, of course, is that--to the senators up here that are more interested in special interests, you better pay attention to the overall interests of protecting the American people.'' Then, finally, on Tuesday, at a fundraiser for Mr. Thune, from South Dakota: ``I appreciate John's vote on a good homeland security bill. And the Senate must hear this, because the American people understand it: They should not respond to special interests. They ought to respond to this interest: protecting the American people from a future attack.'' So I say the problem here is we have a disagreement about how to best protect homeland security workers or whether to protect them, and also how to preserve the authority of the President over national security. That is a good-faith dispute which we are having. But I think the concern is that the President was questioning the patriotism of those who do not agree with him on that issue.

Mr. LIEBERMAN. Madam President, I regret the objection of the Senator from Texas, and I fear what it reflects is an understanding that, primarily because of the courage of the Senator from Rhode Island, Mr. Chafee, who has created a common ground compromise preserving the President's national security powers and giving some, frankly, minimal due process to homeland security workers, that our friends on the other side do not have the votes anymore because they do not have the votes. They are going to filibuster effectively the adoption of a homeland security bill as amended by the Nelson-Chafee-Breaux amendment. The Senator from Texas himself has said that 95 percent of his proposal is the same as our underlying committee proposal. The biggest difference between us is with regard to the rights of the homeland security workers and the right of the President to maintain national security powers. This compromise does it. I am disappointed--

Mr. LIEBERMAN. Mr. President, will the Senator yield for a question?

Mr. LIEBERMAN. Madam President, in responding to the Senator, the vehicle that we would give the President has a great steering wheel. About the only thing that is probably changed is the color of the plastic on the rear lights. The differences, as elucidated in previous debate, are so minimal as to certainly be not worth blocking the creation of a Department of Homeland Security which is urgently needed because the terrorists are still out there. I see my friend from Nebraska on the floor. He is a lead sponsor of the amendment. He has been waiting a while to speak. I will yield the floor.

Mr. LIEBERMAN. I will, for a question.

Mr. LIEBERMAN

Mr. LIEBERMAN. Madam President, I thank my colleagues from Maryland, Senators Mikulski and Sarbanes, for their very eloquent and passionate and compassionate statements. I appreciate the way Senator Sarbanes and Senator Mikulski talked about the impulse of the people who are working for the Federal Government. I cited the law before which talked about the primary status of national security. But the people, the loyal patriotic Americans, does anybody really think in a case of national emergency they are going to be citing subsections of the collective bargaining agreement? They are going to do what any American did. In fact, that is what they did on September 11. I was in a meeting of a group of Federal employees who happened to be from FEMA. They rushed from where they were to the Pentagon. A whole group of them were flown up to New York. They worked long hours. They got very little sleep for days and days. Obviously, the firefighters in New York are unionized. It is a remarkable story. I don't remember the exact number. I talked to a battalion commander of a unit of New York firefighters a couple of weeks ago. He said on September 11, when they heard about the planes hitting the World Trade Center, several hundred firefighters who were off duty just rushed to the scene to help. They weren't thinking about a collective bargaining agreement. They were thinking about America and their duty. These are public servants in the best meaning of the term.

Mr. LIEBERMAN. So I yield up to 10 minutes--let's say I yield up to 20 minutes for both Senators from Maryland as they wish to use that time.

Mr. LIEBERMAN. Madam President, in responding, I want the record to show--and I yield myself a moment more--we are fully prepared to have an up-or-down vote on Senator Gramm's substitute, but after we have the right to offer an amendment. That is the way the Senate works. That is why I objected.

Mr. LIEBERMAN. Madam President, I yield myself up to 5 minutes from my time. I will answer the question the Senator from Georgia has raised. Of course we understand what war means to our country and average citizens. That is why our committee has labored so long and so hard to bring forth this bill creating a Department of Homeland Security, consulting with Members on both sides, working with the White House, to have what is, for the most part, a bipartisan piece of legislation. Senators have spoken this morning about the Senate being divided on this bill. The fact is, the Senate is not divided on this bill. The Gramm-Miller substitute, by Senator Gramm's own reckoning, is 95 percent the same as our Senate Governmental Affairs Committee bill. And it ought to be. We have a common ground desire to go ahead and create a Department of Homeland Security. We have a few areas we disagree on, the most significant of which, the most controversial of which, is the one that the Senator from Georgia has focused on. But I cannot let stand the question that somehow the committee bill, supported by nine Democrats and three Republicans--Senator Stevens, Senator Voinovich, Senator Collins-- somehow puts the protection of Federal workers ahead of national security. We have a different way we have tried to achieve fairness for Federal workers. We can debate that. There is a compromise achieved by Senator Ben Nelson, Senator Chafee, Senator Breaux, that we will have a chance to vote on, the amendment we want to put on to this bill. However, there has been so much misstatement and mythology that has no relationship to reality. Let me state it clearly, national security always must trump and prevail over any other aspect of law in the cases that are described. Let me be very specific why I say that. I will quote the law, United States Code, Title 5, collective bargaining law, section 7106(a)(2)(A) which says, first: Nothing in a collective-bargaining law shall effect the authority of any management official of any agency in accordance with applicable laws to assign and direct employees in the agency. Second, section 7106(a)(2)(B) says: Collective bargaining shall not effect managers' authority to assign work and determine the personnel by which agency operations shall be conducted. This is the directly relevant statute section of law which will continue to prevail and expresses the clear desire--I presume the desire of every Member of the Senate--to give maximum authority, latitude, to managers at a time of national emergency; section 7106(a)(2)(D) of the United States Code, Title 5, provides that collective bargaining shall not affect the authority of managers ``to take whatever actions may be necessary to carry out the agency mission during emergencies.'' In an emergency situation, the agency has statutory authority to act immediately. It does not have to take any time to collectively bargain. The agency actually has authority to act, even if a collective bargaining agreement would ordinarily require some other course of action. All the agency head has to do is to invoke a national emergency. Therefore, the claims we have heard in the Senate today about how union contracts tie the hands of managers with ``silly union work rules'' and about how managers cannot order employees to do what is necessary to protect the security of the American people in an emergency are simply not true. In a Federal agency, there is no such thing as a union work rule that impairs a managers' authority to assign work, to direct employees, or to take whatever action that manager deems necessary in an emergency. That is the law. That is not my opinion; that is United States Code Title 5. When lives are at stake in the kinds of circumstances the Senator from Georgia has described, a Federal manager can impose any changes in assignments immediately, without dealing with unions at all. And the unions get to bargain over ways, if they choose to, to affect the impact of those decisions long after the fact. So we have some disagreements about the specific wording of civil service protections, management flexibility, collective bargaining rights. But, please, make no mistake about it, in a case of national emergency, the law of the United States, unchanged by the committee's proposal, makes clear that national security prevails over any other section of the law and over any provision of a collective bargaining agreement. I yield up to 10 minutes to the Senator from Maryland.