Arlen Specter

Mr. SPECTER

Mr. SPECTER. I have been trying to determine whether the provisions of the Nelson-Chafee-Breaux amendment supplements the provisions to title 5 of 7103(b)(1) which says: The President may issue an order excluding any agency or subdivision thereof from coverage under this chapter if the President determines that-- (A) the agency or subdivision has as a primary function intelligence, counterintelligence, investigative, or national security work, and (B) the provisions of this chapter cannot be applied to that agency or subdivision in a manner consistent with national security requirements and considerations. The language submitted by the Nelson amendment says: The President could not use his authority without showing that the mission and responsibilities of the agency or subdivision materially changed and, two, a majority of such employees within such agency or subdivision have as their primary duty intelligence, counterintelligence, or investigative work directly related to terrorist investigation. If I might have the attention also of the Senator from Connecticut, I had raised this question with the Senator from Connecticut and also the Senator from Nebraska, or talked to their staff, and have been told that the provisions of the Nelson amendment supplement which is now in existing law. I have been advised by people from the administration personnel department that the Nelson provision replaces existing law which then would leave out the language of national security requirements. My question to one of the managers of the bill, the Senator from Tennessee who has the floor, is whether this is a replacement for or an addition to?

Mr. SPECTER. Mr. President, will the Senator from Tennessee yield for a question?

Mr. SPECTER

Mr. SPECTER. It is the Senator's turn, and I am anxious to hear what the Senator has to say.

Mr. SPECTER. Our job is plain, it seems to me, and that is to move ahead, to have a reconciliation, a rapprochement. Let us not have this as a chamber of rancor. Let us not have a dysfunctional Senate. We have many bills which are now pending in the conference committees, which have not been acted upon--the energy bill, the Patients' Bill of Rights, the voting machine correction bill, the terrorism reinsurance bill, the bankruptcy bill, and others, which are awaiting conference. We have a very heavy duty to the American people to complete the people's business, and we need to finish the appropriations bills and not have a continuing resolution. I think it is becoming apparent to the American people that we have a dysfunctional Senate. We have to move away from that. We have to let our enemies--the terrorists and Saddam Hussein--know that the Democrat and Republican Party system is better characterized by that famous embrace between the President and Senate majority leader at the Joint Session of Congress shortly after September 11. I intend to return to the floor to talk in more detail about the Breaux amendment, but I think it is plain by an analysis of what the Breaux amendment does that it ought to be resolved and it ought not to stop this Congress in legislating. It would be a travesty and a tragedy if we were to go over into next year without having a homeland security bill so that we can correct the major problems in the intelligence function of this country. I again thank my colleague from New Mexico and yield the floor. Exhibit 1 A Virtual Blueprint NSA Intercepts The NSA intercepted two messages on the eve of September 11 attacks on the world Trade Center and the Pentagon warning that something was going to happen the next day, but the messages were not translated until September 12. The Arabic- language messages said, ``the match is about to begin,'' and ``Tomorrow is zero-hour.'' They came from sources--a location or phone number--that were of high enough priority to translate them within two days but were not put in the top priority category, which included communications from Usama bin Laden or his senior al Qaeda assistants. Murad In January 1995, the Philippine National Police discovered Ramzi Yousef's bomb making lab in Manila and arrested an accomplice named Abdul Hakim Murad. Captured materials and interrogations of Murad revealed Yousef's plot to kill the Pope, bomb U.S. and Israeli embassies in Manila, blow up 12 U.S.-owned airliners over the Pacific Ocean, and crash a plane into CIA headquarters. Murad is a promoter of the same radical interpretation of Sunni Islam ideology as Usama bin Laden, who emerged during this time frame as promoting this radical ideology. NOTE: This provided a data point on a terrorist group discussing a plan to use an aircraft as a weapon in the possession of the Intelligence Community. Phoenix Memorandum The FBI paid too little attention to a July 10, 2001 memorandum written by an FBI agent in Phoenix urging bureau headquarters to investigate Middle Eastern men enrolled in American flight schools. The ``Phoenix Memo'' cited Usama bin Laden by name and suggested that his followers could use the schools to train for terror operations. Federal authorities have been aware for years that a small number of suspected terrorists with ties to bin Laden had received flight training at schools in the United States and abroad. Pakistani terrorist plotter Murad, who had planned to blow up airliners over the Pacific, trained at four U.S. schools in the early 1990s. Crawford Briefing President Bush and his top advisers were informed by the CIA in early August 2001 that terrorists associated with Usama bin Laden had discussed the possibility of hijacking airplanes. The top-secret briefing memo presented to President Bush on August 6 carried the headline, ``Bin Laden Determined to Strike in US,'' and was primarily focused on recounting al Qaeda's past efforts to attack and infiltrate the United States. Moussaoui & Minneapolis FBI Minneapolis FBI agents investigating terror suspect Zacarias Moussaoui last August were severely hampered by officials at FBI headquarters, who resisted seeking FISA surveillance and physical search warrants, applied erroneous probable cause standards, and admonished agents for seeking help from the CIA. Kuala Lumpur The CIA tracked two of the Flight 77 (Pentagon) terrorists to a Qaeda summit in Malaysia in January 2000, then did not share the information as the terrorists reentered America and began preparations for September 11. The CIA tracked one of the terrorists, Nawaf Alhazami, as he flew from the meeting to Los Angeles, and discovered that another of the men, Khalid Almihdhar, had already obtained a multiple-entry visa that allowed him to enter and leave the United Stats as he pleased. The CIA did nothing with this information. Instead, during the year and nine months after the CIA identified them as terrorists, Alhazami and Almihdhar lived openly in the United States, using their real name, obtaining drivers licenses, opening bank accounts and enrolling in flight schools--until the morning of September 11, when they boarded American Airlines Flight 77 and crashed into the Pentagon. Bin Laden On February 26, 1993, a bomb was detonated in the parking garage of the World Trade Center in New York City. On June 24, 1993, the FBI arrested eight individuals for plotting to bomb a number of New York City landmarks, including the United Nations building and the Lincoln and Holland tunnels. The central figures in these plots were Ramzi Yousef and Shaykh Omar Abd al-Rahman--both of whom have been linked to Usama Bin Laden and are now serving prison sentences. Following the August 1998, bombings of two U.S. Embassies in East Africa, Intelligence Community leadership recognized how dangerous Bin Laden's network was and that he intended to strike in the United States. In December 1998 DCI George Tenet provided written guidance to his deputies at the CIA, declaring, in effect, ``war'' with Bin Laden. Concern about Bin Laden continued to grow over time and reached peak levels in the spring and summer of 2001, as the Intelligence Community faced increasing numbers of reports of imminent al Qaeda attacks against U.S. interests. In July and August 2001, that rise in intelligence reporting began to decrease, just as three additional developments occurred in the United States: the Phoenix memo; the detention of Zacarias Moussaoui; and the Intelligence Community's realization that two individuals with ties to Usama Bin Laden's network--Nawaf Alhazami and Khalid Almihdhar--were possibly in the United States. In June 1998, the Intelligence Community learned that Usama Bin Laden was considering attacks in the U.S., including Washington, DC, and New York. This information was provided to senior U.S. Government officials in July 1998. In August 1998, the Intelligence Community obtained information that a group of unidentified Arabs planned to fly an explosive-laden plane from a foreign country into the World Trade Center. The FBI's New York office took no action on the information. The Intelligence Community has acquired additional information since then indicating links between this Arab group and al Qaeda. In September 1998, the Intelligence Community obtained information that Usama Bin Laden's next operation could involve flying an aircraft loaded with explosives into a U.S. airport and detonating it; this information was provided to senior U.S. Government officials in late 1998. In October 1998, the Intelligence Community obtained information that al Qaeda was trying to establish an operative cell within the United States. This information indicated there might be an effort underway to recruit U.S. citizen Islamists and U.S.-based expatriates from the Middle East and North Africa; In the fall of 1998, the Intelligence Community received additional information concerning a Bin-Laden plot involving aircraft in the New York and Washington, DC, areas; In November 1998, the Intelligence Community learned that a Bin Laden was attempting to recruit a group of five to seven young men from the United States to strike U.S. domestic targets. In the spring of 1999, the Intelligence Community learned about a planned Bin Laden attack on a U.S. Government facility in Washington, DC. Additionally, in 1999, the threat of an explosive-laden aircraft being used in a suicide attack against the Pentagon, CIA headquarters, or the White House, was noted in a Library of Congress report to the National Intelligence Council. In late 1999, the Intelligence Community learned of Bin Laden's possible plans to attack targets in Washington, DC, and New York City during the New Year's Millennium celebrations. On December 14, 1999, an individual named Ahmed Ressam was arrested as he attempted to enter the United States from Canada with detonator materials in his car. Ressam's intended target was Los Angeles International Airport. Ressam, who has links to Usama Bin Laden's terrorist network, has not been formally sentenced yet. In March 2000, the Intelligence Community obtained information regarding the types of targets that operatives in Bin Laden's network might strike. The Statue of Liberty was specifically mentioned, as were skyscrapers, ports, and airports, and nuclear power plants; Between late March and September 2001, the Intelligence Community detected numerous indicators of an impeding terrorist attack, some of which pointed specifically to the United States as a possible target. Among these are: Between May and July, the National Security Agency reported at least 33 communications indicating a possible, imminent terrorist attack--none of which were specific as to where, when, or how an attack might occur, nor was it clear that any of the individuals involved in these intercepted communications had any first-hand knowledge of where, when, or how an attack might occur. These reports were widely disseminated within the Intelligence Community. In May 2001, the Intelligence Community obtained information that supporters of Usama Bin Laden were reportedly planning to infiltrate the United States via Canada in order to carry out a terrorist operation. This report mentioned an attack within the United States, though it did not say where in the U.S., or when, or how an attack might occur. In July 2001, this information was shared with the FBI, the Immigration and Naturalization Service (INS), U.S. Customs Service, and the State Department and was included in a closely held intelligence report for senior government officials in August 2001. In May 2001, the Intelligence Community received information that seven individuals associated with Usama Bin Laden departed various locations for the United States; In June 2001, the DCI's Counter Terrorism Center (CTC) had information that key operatives in Usama Bin Laden's organization were disappearing while others were preparing for martyrdom; In July 2001, the DCI's CTC was aware of an individual who had recently been in Afghanistan who had reported, ``Everyone is talking about an impending attack.'' The Intelligence Community was also aware that Bin Laden had stepped up his propaganda efforts in the preceding months; In the late summer 2001, the Intelligence Community obtained information that an individual associated with al Qaeda was considering mounting terrorist operations in the United States. There was no information available as to the timing of possible attacks or on the alleged targets in the United States.

Mr. SPECTER. I thank my colleague from New Mexico. Mr. President, the other provision which is in controversy relates to the flexibility which the President is seeking on six categories. The Breaux amendment would allow the President to have the flexibility under four of the categories, and then in the event of disagreement between management and the union, the controversy would go to the Federal Services Impasse Panel. There are seven members of that panel and all have been appointed by President Bush. It is customary for that panel to change when the administration changes. The four categories which are in the Breaux bill allow for performance appraisal, classification, pay raise system, and labor-management relations, all of which the President wants, and only the limitation going before the impasse panel, which should not be an obstacle, and then the other two are adverse actions and appeals. So that if you boil it all down, our area of disagreement is really very minor. The bill which is going to come out of conference is obviously going to take up these issues. We know as a matter of practice when there is a Presidential veto or a firm statement about a Presidential veto, invariably the Congress relents on an individual point. So it would be my hope that we could yet resolve this controversy. I talked to Senator Breaux, Senator Gramm of Texas, and Senator Lieberman, and the parties are very close. I have not yet stated a preference for either position. I am being lobbied on both sides. It is a very major matter for my constituency on both sides, a very large labor constituency in Pennsylvania, and very grave concern on my part that the President's powers not be diminished in a way which would impede his efforts on a Department of Homeland Security. When you take a look at where we are with the various problems of lapses in security--there have been a parade of witnesses before the joint intelligence committees of the House and Senate. We counted some of these, not all. In view of the limited time, Mr. President, I ask that there be added at the conclusion of my comments a recitation of a number of other warnings which were given, which could have provided a veritable blueprint.

Mr. SPECTER. Mr. President, I ask unanimous consent for an additional 5 minutes.

Mr. SPECTER. I thank the distinguished Senator from Nevada for that question, and I am glad to respond. I had intended to talk a little later about the differences. Let me take them up now to emphasize the point that the Senator from Nevada has made, that the differences are not very big. I agree with the Senator from Nevada that we ought to send the bill to conference. When we had prescription drugs on the Senate floor, I voted for the Republican measure, Grassley-Snowe, and then I voted for the bill put up by the Democrats, by Senator Graham of Florida. It seemed to me the important thing was to get the matter to conference so that the issue could be resolved with finality. The two pending issues which are outstanding on labor relations, the difference between the bill offered by Senator Gramm and the bill offered by Senator Lieberman, with the Breaux amendment, boil down to this: It is the President's authority to waive the provisions on collective bargaining in the event of a national emergency. Now, listen closely to what the President must do under existing law: The President may issue an order excluding any agency or subdivision thereof for coverage under this chapter, collective bargaining, if the President determines that, A, the agency or subdivision has as a primary function intelligence, counterintelligence, investigative, or national security work; and the provisions of this chapter cannot be applied to that agency or subdivision in a manner consistent with national security requirements and considerations. This is what Senator Breaux wishes to add: The President could not use his authority without showing that, No. 1, the mission and responsibilities of the agencies or subdivision materially changed and, No. 2, a majority of such employees within such agencies or subdivision have as their primary duty: Intelligence, counterintelligence, or investigative work directly related to terrorism investigation. It is true the Breaux amendment does add a requirement for the President to exercise his authority. It is true that there is an additional requirement, and the President does lose a little power. However, the requirements of existing law which relate to intelligence, counterintelligence, and investigation are very similar to the provisions of the Breaux amendment which again relate to intelligence, counterintelligence, or investigative work directly related to terrorism investigation. The President must make an additional showing. However, it is a showing which is very much in line with what the President has to show under existing law.

Mr. SPECTER. Senator Domenici, who is the only Senator waiting, says it is OK, so I will be glad to respond to the question.

Mr. SPECTER. OK, on your time.

Mr. SPECTER. Mr. President, I have sought recognition to encourage my Senate colleagues to pass legislation on homeland security and to send it to conference. There are many more agreements, much more agreement than disagreement, and the disagreements are relatively minor. Last week, I said the Senate was dysfunctional because we had not passed a budget resolution. For the first time since the Budget Act was passed in 1974, the Congress has not passed a budget resolution. The Senate has not passed a budget resolution. Thirteen appropriations bills have not been passed. We have been on the Interior bill for weeks now and homeland security for weeks. Long speeches. Not getting to the point. Not voting. Not moving ahead with the legislation. Last week, it was an accurate characterization to say the Senate was dysfunctional. This week, the Senate has become a chamber of rancor. It is plain that President Bush did not intend to impugn anyone's patriotism. He was commenting on two provisions of the homeland security bill related to labor-management relations. Even on those matters, the differences are relatively minor. The relationship between Republicans and Democrats is better characterized by the embrace between President Bush and the majority leader at the joint session of Congress shortly after September 11, 2001. The current controversy may well be giving encouragement, aid, and comfort to Osama bin Laden, deep in some cave, and Saddam Hussein, in the bowels of some bomb shelter. However, we know who the enemies are. The enemies are the terrorists and the enemies are those who pose the risk of using weapons of mass destruction. I believe it is vital to move ahead with the homeland security bill to correct major deficiencies which have been disclosed in the intelligence agencies in the United States. We had a veritable blueprint, prior to September 11, 2001, and if we had connected all of the dots, I think the chances were good that we could have avoided September 11. The Congress of the United States and the administration have a duty, a solemn duty, to do everything in our power to prevent another terrorist attack. We lost thousands of Americans and the official word from the administration, articulated by a number of ranking executive department officials, is that there will be another terrorist attack. It is not a matter of if, it is not a matter of whether, it is a matter of where or when. I am not prepared to accept that conclusion. I believe the United States has the intelligence resources and can muster the intelligence resources to prevent another September 11. When I served as chairman of the Intelligence Committee in the 104th Congress, I introduced legislation which would have brought all of the intelligence agencies under one umbrella. There have been repeated efforts to accomplish that, not just the legislation I introduced in 1996. There is on the President's desk a plan submitted by former National Security Adviser, General Scowcroft, to accomplish a coordination of all intelligence agencies. However, it has not been done because of the turf battles between the various intelligence agencies. Those turf battles regrettably are endemic and epidemic in Washington, DC. They have to come to a conclusion. We have the mechanism now, the homeland security bill, to make those corrections. We knew prior to September 11, from the FBI Phoenix memorandum, about men taking flight training who had big pictures of Osama bin Laden. The report was disregarded. We knew prior to September 11 that there were two terrorists in Kuala Lumpur. The CIA knew about it, but did not tell the FBI or INS, and they turned out to be two of the pilots on September 11. We know from the efforts made by the Minneapolis Office of the FBI to get a warrant under the Foreign Intelligence Surveillance Act as to Zacarias Moussaoui, which would have given us a veritable blueprint of al-Qaida's intention, that certainly it would have led us to the trail and could have prevented September 11. Then we have the famous, or infamous, report coming to the National Security Agency on September 10 about an attack the very next day, which was not translated. There is much more I could comment about, but the time is limited.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to join in paying tribute to Senator Strom Thurmond. Senator Thurmond will celebrate his 100th birthday on December 5 and has the most remarkable record of longevity in the Senate of any Senator in history. I was disappointed when Strom decided not to run for reelection last year, but I can understand his views on the subject. He has been really a paragon of agility and sturdiness, taking steps two at a time, coming up to the Senate Chamber--until very recently. Strom continues to have a very firm handshake and he continues to have an agile mind and he continues to make all the votes. So that is one of the reasons why I questioned his decision not to run for reelection. I had watched Senator Thurmond over the years, and when I was elected to the Senate in 1980, I looked forward to meeting him. But I did not have to await my arrival in the Senate to have my first contact with Senator Thurmond because one day late in November, I was sitting in my den and the phone rang. There was a deep southern voice: I would like to speak to Senator Specter. I said: This is he. He said: This is Senator Thurmond. I said: What a great pleasure to hear from you, Senator Thurmond. He said: I called to ask if you would be willing to support me for President pro tempore. I said: Senator, I thought the position of President pro tempore was automatically the senior member of the party in power, and I know that is you, sir. He said: That is true, but I do not like to take anything for granted. I said: Senator Thurmond, you may be assured I will support you for President pro tempore. And I did. I would like another chance to do that. Maybe we will have a chance to support him for President pro tempore after the November elections. When I joined the Senate, I selected the Judiciary Committee, which is right in line with my own training and interests. Senator Thurmond, of course, was the chairman of the Judiciary Committee. Regrettably, when there were efforts to form a quorum, members were usually very late. I made it a point to arrive on time. When I did that the third time in a row--the chairman has to arrive on time--when I did that the third time in a row, Senator Thurmond asked what I was doing there on time. Then he thanked me, congratulated me, and said I might even start a precedent. In 1982, when there were two Pennsylvanians up for confirmation, Judge Mansman and Judge Caldwell, I was there to present them to the committee. Senator Thurmond was presiding as chairman. He asked them a question. He said to them: If confirmed, do you promise to be courteous? I thought to myself: Why would he ask the question, If you are confirmed, do you promise to be courteous? Not surprisingly, both nominees said yes. Then Senator Thurmond said: Because the more power a person has, the more courteous a person should be. I have not heard a more profound statement in my 22 years in the Senate. Not that there is a whole lot of competition for profound statements around here. When Senator Thurmond does not appear at Judiciary Committee hearings, I ask the question. I have had many nominees comment to me after a number of years how they thought that was a very significant question. If any judge is listening now, that is the hallmark of a judge. Judges have a lot of reasons to be out of sort with lawyers who are not prepared, or witnesses who are unresponsive, but there is enormous power in that black robe with a lifetime appointment, and Senator Thurmond had his finger right on it. There are a lot of vignettes I could tell, but Senator Allen has come to the floor, so I will limit myself to a couple more. When Senator Howard Baker was the majority leader, we used to have all-night sessions, a very stark contrast from now when we hardly have day sessions. One evening we had a finance bill before us. It was 1982. It was 11:45 p.m. The floor was crowded with Senators. Nobody had any appointments left at 11:45 p.m. Senator Baker stood behind that podium and said: Amendments, like mushrooms, grow overnight, so we are going to stay and finish the bill. I have consulted with the chairman-- Senator Dole of the Finance Committee--and we worked through the night. There were maybe three, four rollcall votes, a lot of amendments taken, a lot of amendments dropped. We walked out at 6:30 in the morning into the sunshine with a complete complex finance bill. If we did that tonight, we would finish homeland security by morning. In any event, that is one of the occasions I went down to the restaurant, which was kept open. I made it a point to find Senator Thurmond's table and have a bowl of soup and to hear great stories about Senator Thurmond's career in Washington, DC. He talked about Lyndon Johnson as a Senator, and that young fellow, John Kennedy, who came to the Senate, about the heroes and the legends of the Senate, because he has seen them all. One story he told, which I thought was especially interesting, was about the inaugural parade on January 20, 1949. Senator Thurmond had run for President and had carried four States and almost threw the election into the House of Representatives. In the parade, after President Truman was elected and Vice President Alben Barkley was elected, Strom came down with his wife riding in an open-top car, probably dressed in a cutaway. I am not sure about that. Maybe I will ask Strom to yield for a question here. When he passed the reviewing stand, he stood up and tipped his hat. Vice President Alben Barkley started to raise his hand and, as Strom told the story, Truman grabbed his hand and pulled it down and said: Don't you wave to that SOB. I might be more explicit but somebody might want to have it stricken from the Record as being an inappropriate statement. One more short story. In a Judiciary Committee hearing on one occasion, Strom did not want to see a quorum reached because he did not want legislation to be passed out of the committee. So he stood right outside the Judiciary Committee door over in 226. He wanted to be right there poised to go into the room in the event there was a quorum so he could obstruct whatever it was he did not want to happen. Ralph Yarborough, a Senator from Texas, came up and grabbed hold of Strom and tried to pull him into the hearing room. Strom--I do not know exactly what the wrestling maneuver was, but Yarborough ended up on the floor in a Strom Thurmond scissor. Strom did finally agree to release Senator Yarborough with Yarborough's promise he would not go into the hearing room. As the story goes, Yarborough went into the hearing room. Strom should never have released him. He probably would still be there if Strom had not been so generous. Senator Thurmond has been an example in many ways as his political philosophy has advanced. He is a great advocate for African Americans, constituents--the wall of his office ought to be memorialized and left intact. He has so many plaques and commemorative memorabilia. It has enabled me to tell a story on the stump which has been somewhat useful both from a political and humorous point of view, and that is, when running for reelection, I say: If I am reelected in 2004 when I am next up and decide to run again 6 years later in 2010, and decide to try again 6 years after that in 2016, and run again in 2022, and then run again in 2028, at that point, I will be younger than Senator Strom Thurmond is today. People are always amazed at the thought of running in 2028. So they think it is not too bad to run in the year 2004 for a fifth term. They are always very much impressed by Senator Strom Thurmond. So, Strom, I join my colleagues in saluting you for a fabulous career and wish you 100 more years of continued good health. I yield the floor.

Mr. SPECTER. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. SPECTER

Mr. SPECTER. Mr. President, I thank the distinguished Senator from Connecticut for yielding time. Immediately after 9/11, I opposed the creation of an independent commission because at that time I believed the appropriate investigation should be conducted by the Intelligence Committees of the two Houses and that there ought to be a period for the intelligence community to regroup after 9/11. As matters have eventuated, it has not been possible for the joint investigation by the Senate and House Intelligence Committees to be completed. We are now nearing the interim term, and that is why I now believe an independent commission would be the thing to do. When the so-called leak occurred and the Intelligence Committees invited the FBI to conduct an investigation, I thought that was very inadvisable, and by a letter dated June 24, I wrote to the chairmen and vice chairmen of the committees of both Houses saying in effect that it was unwise to have the Intelligence Committees investigating the FBI when the FBI was investigating the Intelligence Committees; that as a matter of separation of powers, it is highly undesirable to have the executive branch investigating congressional oversight; but if they believed it was necessary, a better approach would be to hire independent counsel, as the Judiciary Committee did when a leak occurred during the confirmation hearings of Justice Thomas. But it is evident at this point that the Intelligence Committees are not going to finish the job, that there are very vital issues to be determined as to the lapse on 9/11, and that on the basis of the current record, had the dots been connected, there is a veritable blueprint where 9/11 might have been prevented and the best approach now is to work through the commission. I ask unanimous consent that my letter be printed in the Record, and I thank my colleague from Connecticut and yield the floor.

Mr. SPECTER

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

Mr. SPECTER. Madam President, the question to the Senator from Connecticut is on the issue of the timeliness of action by Congress. My question is: Does the Senator from Connecticut think it important to move--even on an earlier day, when the Senator from Connecticut introduced legislation last October for homeland security, which sat on a back burner, having been resisted by the President, the issue having sat on the back burner until the President endorsed the concept of a Department of Homeland Security--but does the Senator from Connecticut believe that too much time has elapsed already?

Mr. SPECTER. I have one more question, if the Senator will yield, and the question is on the issue of having under one umbrella the analysis of all of the intelligence branches--CIA, FBI, Defense Intelligence Agency, National Security Agency--on the issue that there were enough dots on the board prior to September 11, that had they been connected, there might have been a veritable blueprint if you put together the July FBI report from Phoenix about the young man taking flight training with Osama bin Laden's picture in his apartment, and the two al-Qaida men who went to Kualai Lumpur, the hijackers known to the CIA and not told to the FBI or INS or the NSA report, on September 10 that there would be an attack the next day, not even translated until September 12, and the information in the computers of Zacarias Moussaoui having been obtained with an appropriate warrant under the Intelligence Surveillance Act. There was a veritable blueprint for what happened on September 11 and there is urgency, urgency, urgency as we speak to get the intelligence agencies to act together and to coordinate the analysis so we may have as full a picture as possible.

Mr. SPECTER

Mr. SPECTER. Mr. President, I seek recognition first to thank Senator Byrd, the Chairman of the Senate Appropriations Committee and its Interior Subcommittee and the Subcommittee Ranking Republican, Senator Burns, for their efforts in drafting the fiscal year 2003 spending plan for the agencies under their jurisdiction. Also, I want to call attention in particular to two competitively awarded initiatives that, unfortunately, the annual Department of Energy, DOE, budget submission routinely underfunds and expects Congress to correct. First, Air Products and Chemicals, Inc. and its partners, DOE, Ceramatec, ChevronTexaco, Eltron Research, McDermott Technology and Concepts NREC, are developing a unique, oxygen-producing technology based on high-temperature, ion transport membranes, ITM. The technology, ITM Oxygen, would be combined with an Integrated Gasification Combined Cycle, IGCC, system to produce oxygen and electric power for the iron/steel, nonferrous metals, glass, pulp and paper, cogeneration, and chemicals and refining industries. The ITM Oxygen project is a cornerstone project in DOE's Vision 21 efforts and has the potential to significantly reduce the cost of tonnage oxygen plants for IGCC systems. The DOE fiscal year 2003 cost-share requirement is $6.5 million from the Fossil Energy Research and Development, Coal and other Power Systems, President's Coal Research Initiative, Advanced Systems budget under IGCC, Vision 21. Unfortunately, DOE requested only $3.5 million for the ITM Oxygen project. Underfunding ITM Oxygen in fiscal year 2003 by $3 million would result in a delay of the program, by at least one year and I am advised it would add approximately $10 million to the program's costs. Second, DOE's ITM Syngas program is developing a ceramic membrane reactor able to separate oxygen from air and partially oxidize methane to produce synthesis gas in a single step. Development of this technology will lead to numerous applications including clean transportation fuels, hydrogen for fuel cell applications, and chemical feedstocks. A critical application is gas-to-liquids, GTL, conversion where ITM Syngas technology will significantly improve the overall economics of GTL and permit the economical recovery of more than 37 trillion cubic feet of stranded Alaska North Slope gas. Air Products and Chemicals, Inc. is leading a research team comprising Pacific Northwest National Laboratories, McDermott Technology, Ceramatec, ChevronTexaco, Eltron Research, Norsk Hydro, the University of Alaska-Fairbanks, the University of Pennsylvania, and Pennsylvania State University. The DOE fiscal year 2003 cost share requirement is $5.5 million from the Fossil Energy Research and Development, Coal and Other Power Systems, President's Coal Research Initiative, Fuels, Transportation Fuels and Chemicals program. DOE's fiscal year 2003 budget request of $5.0 million for the Fossil Energy Research and Development, Coal and Other Power Systems, President's Coal Research Initiative, Fuels, Transportation Fuels and Chemicals program budget includes just $2.4 million to continue the ITM Syngas/Hydrogen project. Underfunding ITM Syngas in fiscal year 2003 would result in stretching out the program and increasing overall program costs. I want to thank the Senators from West Virginia and Montana for having supported in the past both the ITM Oxygen and Syngas programs. Because of their attention, both development efforts have remained on cost, on schedule and promise to be true success stories. Now I want to thank them again, for adding $6 million to the DOE's request for IGCC programs and $15 million for transportation fuels and chemicals programs. This additional funding will ensure that ongoing programs like the ITM Oxygen and ITM Syngas are fully funded in fiscal year 2003. I look forward to working with both the Senator from West Virginia and the Senator from Montana as they conference with our colleagues in the House of Representative to ensure that $6.5 million is provided for ITM Oxygen and ITM Syngas is funded at $5.5 million.

Mr. SPECTER

Mr. SPECTER. Madam President, I have sought recognition to comment briefly about the upcoming cloture vote and also about the status of our progress on the homeland security bill and the progress of the Senate on its fundamental responsibility to have a budget or make appropriations. I would have thought that on September 17, the day the Constitution was ratified, there would be more regard for the constitutional responsibility of the Senate. We have the power of appropriation, but we are not handling our duties. Much as I dislike saying so, I believe the Senate is dysfunctional. Harsh, perhaps, but true, certainly. We are simply not getting the job done. I am a little surprised to see a cloture motion filed on an amendment to an appropriations bill. If there were protracted debate, if there were an effort to stall, if there were some attempt made to delay the proceedings of the Senate, perhaps so. But there are Senators who want to vote on an important issue relating to the forests, especially in the West, and the dangers of fire. They have been seeking a vote but have not been able to get one. I intend to vote against cloture, to give Senators a chance to present their amendment. That is not to say I will support the amendment, but I believe the Senators ought to have an opportunity to present their amendment. Cloture has now been filed on the homeland security bill. We are now in our third week after returning from the August recess, and the Senate has done virtually nothing during that period of time. We have had prolonged speeches on generalizations which have, in fact, impeded the progress of the homeland security bill. We were in a position to vote on the amendment by the distinguished Senator from Connecticut last Thursday, but it could not get a vote because the time was consumed with speechmaking. Now, I like speechmaking as much as the next Senator, but there has to be some balance as to what is being done. And again this afternoon--I had not known unanimous consent was granted--more lengthy speeches, without really getting to the substance of what the Senate ought to be doing. We have not passed any appropriations bill among the 13 we are charged with passing. Now, this is September 17, 13 days away from the end of the fiscal year, with only a few working days left. The Department of Defense appropriations bill lies dormant. It has been passed by both bodies, but there hasn't been a conference. The military construction appropriations bill lies dormant. Again, it has been passed by both bodies but there hasn't been a conference. We are fighting a war at the present time. We are cleaning up the remnants of other wars, in Kosovo and in Bosnia, and our troops are in Afghanistan. We will be called upon soon to vote on a resolution which may send us to war against Iraq. Now, what are we doing for the Department of Defense? We have a very substantial increase in defense funding, but the way it looks now, we are going to be having a continuing resolution. What the House has said ought to be adopted and what the Senate has said ought to be adopted will be curtailed very drastically if we have a continuing resolution. So we are simply not doing our job. Then we have 11 other appropriations bills. I have the responsibility, as ranking member of the Subcommittee on Labor, Health and Human Services, and Education, to prepare a very major bill which funds the Department of Education, the major capital investment of America, the Department of Health and Human Services, which is very important, and the Department of Labor on worker safety. But we are not moving to pass the bill. The National Institutes of Health, probably the best investment this Congress makes, the crown jewel of the Federal Government--perhaps the only jewel of the Federal Government--has an increase of $3.5 billion in this year's appropriations bill. But as of this reading, it is unlikely to comment on its operation because we are not going to pass the bill. We are told that the Department of Defense appropriations bill is being held up because we have not established the allocations. Why haven't we established allocations? We haven't established allocations because there is no budget. The Budget Act was passed in 1974, and this is the first year there hasn't been a budget passed. As I am approaching the end of my 22nd year in this body, not an inconsiderable period of time, I have not seen the Senate in such disarray as we are at the present time. We had a vote several weeks ago on what was the equivalent of deeming. That is legal jargon, Senate jargon, for making out as if we had passed a budget to establish a figure. It required 60 votes to have this amendment passed--I was sorely tempted to vote for it--which would have established the Senate budget $9 billion above the House budget. I do believe we need a budget, because if we do not, we are going to be passing appropriations bills which far exceed the purported allocations. It is customary, on the attractive education proposals and the attractive health proposals, to get into the high fifties. With a 60- vote requirement, those amendments are not passed, but they are very tempting amendments. When I responded to the rollcall, with 59 Senators having voted aye on the deeming resolution, I just was not going to do it, notwithstanding my deep commitment to the appropriations process and notwithstanding my knowledge that it was fairly important to have a budget figure. But if we are going to use a shortcut, if we are going to use a substitute, what is the point of having a budget resolution? If the Budget Committee knows it can be derelict in its duty and be bailed out by 60 Senators who will say, awe, shucks, let's go ahead and do it anyway, what is the point to have the Budget Committee do its job next year or any year? The previous chairman of the Budget Committee told me--the distinguished senior Senator from New Mexico is sitting in front of me--that he will be chairman next year. If I was sure of that, I would have voted for deeming. But I am not sure of much of anything on the current posture. So it is my hope that we will move ahead and have votes and let there be a vote on this issue on the course. But let us proceed to vote on the homeland security issues which are very important. One of the critical issues on homeland security, in my judgment, is to have the analysis of all the agencies--FBI, CIA, NSA--under one umbrella. Had that been done prior to September 11, 2001, I think that catastrophe might have been avoided. There were lots of danger signals. There were lots of dots on the board. There was the July FBI Phoenix memorandum about a man taking flight training and two al-Qaida men in Kuala Lumpur, known to the CIA, who later turned out to be pilots on the hijacked planes. The CIA didn't bother to tell the FBI or INS. You had the NSA warning on September 10 that something was going to happen the next day. But nobody bothered to translate it until September 12. Then you had the matter of Zacarias Moussaoui, a much celebrated personality today with the litigation in the Federal court. But had the FBI obtained a warrant under the Foreign Intelligence Surveillance Act, there was a treasure trove of information linking Moussaoui to al- Qaida. And there was a virtual blueprint, had all the dots been put together. After September 11, I opposed the creation of an independent commission because it seemed to me the Intelligence Committees could do the job. I understood that they couldn't move ahead immediately with hearings in closed session and then in open session in order to give the intelligence community an opportunity to regroup. But that time has long passed, and now we find the Intelligence Committees are embroiled in another investigation; that is, an investigation by the FBI against the Intelligence Committees. It is very difficult to understand how the Intelligence Committees can be investigating the FBI and the CIA and other intelligence agencies, and then, having a leak of classified material, to have the FBI investigate the intelligence committees. I wrote to the chairmen and vice chairmen of both the House and Senate, strongly urging them not to do that--that you simply can't have investigators being investigated by those who are under investigation. Then you have the issue of separation of powers. If the FBI is going to be able to investigate the Congress, what independence does the Congress have in our oversight function? So the Intelligence Committees have not moved ahead for that job. The only alternative now is an independent commission. I worked as one of the younger lawyers on the Warren Commission staff many years ago. I say ``younger lawyer'' because I am still a young lawyer. And, while the Warren Commission has received a fair amount of critical analysis over the years, the essential conclusions have held up--that Oswald was the sole assassin, or the single bullet that went through both the President and Governor Connolly and the President was struck by a later bullet which killed him. So I have now come to conclude that we need an independent commission. But most of all we need a Senate which will move ahead in its duties and obligations. This is a good day, September 17. September 17, 1787, was the day the Constitution was signed. So, 215 years later, that ought to be a hallmark for us to move ahead and discharge our duties. I yield the floor.

Mr. SPECTER. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. SPECTER

Mr. SPECTER. Madam President, I thank the majority leader. I have sought recognition to comment very briefly on the nomination of Arthur J. Schwab of Pittsburgh, PA. Mr. Schwab is an outstanding lawyer and will make an outstanding judge. His credentials include: Graduating cum laude from Grove City College; Order of Coif from the University of Virginia Law School; an extraordinary litigation record as a trial lawyer, appearing in some 22 States, in addition to Pennsylvania; in the Federal courts in Pennsylvania, he argued appeals in the Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, and Eleventh Circuit Courts. He has an extraordinary litigation background and will make an outstanding judge. I ask unanimous consent to have printed in the Record the qualifications of Arthur J. Schwab.

Mr. SPECTER

Mr. SPECTER. I yield the floor.

Mr. SPECTER. Mr. President, I have sought recognition to speak in opposition to the idea for a National Office for Combating Terrorism, which would be a position confirmed by the Senate, because I believe the responsibilities which are enumerated in the bill can be handled by the Secretary for Homeland Security so that it is not necessary to have another position of Director for the National Office for Combating Terrorism. As the responsibilities are set forth in section 201(c), first to develop national objectives and policies for combating terrorism, that is a core function for the Secretary of Homeland Security. Second, to directly review the development of a comprehensive national assessment of terrorist threats, again, I believe is something which can be handled by the Secretary of Homeland Security, which is a position to be confirmed. Another responsibility enumerated in the statute is to coordinate the implementation of the strategy by agencies with responsibilities for combating terrorism, and there again it is my view that that can be handled by the Secretary of Homeland Security. Another responsibility is to work with agencies, including the Environmental Protection Agency, to address vulnerabilities identified by the Director of Central Infrastructure Protection within the Department. Again, that is a matter which can be handled by the Secretary of Homeland Security. Another responsibility is to coordinate, with the advice of the Secretary, the development of a comprehensive annual budget for the program and activities under the strategy, including the budgets of the military departments and agencies within the national foreign intelligence program related to international terrorism, but excluding military programs, projects, or activities relating to force protection. I believe there is sound reason for having budget authority to coordinate overall the intelligence functions. However, again, I think to the extent we grant that overall budget authority, the logical place to put it is in the Secretary of Homeland Security. As the other responsibilities are enumerated, to have the exercise, function, and authority for Federal terrorism prevention and response agencies, again, these are matters for the Secretary of Homeland Security. The intent of the drafter of these provisions is correct in seeking to provide the coordination, but to have another officeholder confirmed by the Senate and in the West Wing is not advisable. The analogy to the National Security Council position now held by Dr. Condoleezza Rice, I think, is inapposite and does not apply to making the Director for the National Office of Combating Terrorism a confirmed position. There is a real need on the overall coordination, to be sure we have all of the agencies responsible for intelligence and analysis under one umbrella, such as the CIA, the FBI, the Defense Intelligence Agency, the National Security Agency, and all of the intelligence agencies. A point worth repeating is that had we put all of the dots together on matters known prior to September 11, 2001, there was a veritable blueprint and September 11 might well have been prevented. There was the Phoenix office of the FBI reporting on a man taking flight training, a big picture of Osama bin Laden on his wall, and other respective connections to al-Qaida. We had the two terrorists known by the CIA in Kuala Lumpur who turned out to be terrorist pilots of planes on 9/11. The information was not given to the FBI or the INS in a timely fashion. There was the threat given to the National Security Agency on September 10, 2001, which was not transcribed, that something was going to happen the next day. It was not interpreted until September 12, after the events of 9/11 had occurred. Perhaps most importantly, there was the effort to obtain a warrant under the Foreign Intelligence Surveillance Act as to Zacarias Moussaoui, and had that warrant been obtained, there was an actual treasure trove of information linking Moussaoui to al-Qaida. The FBI used the wrong standard, as disclosed in the testimony of Special Agent Coleen Rowley, who appeared with FBI Director Mueller on June 6 at an oversight hearing by the Judiciary Committee. In Agent Rowley's letter, she talked about the U.S. attorney in Minnesota requiring 75 to 80 percent probabilities. Agent Rowley thought that was wrong. She thought the standard should be a preponderance of the evidence, more likely than not--51 percent, as she put it. However, she was wrong as well because the standard is articulated in the case captioned Gates v. Illinois, an opinion written by then-Justice Rehnquist, saying the standard was suspicion, and Justice Rehnquist went back to the Krantz case with Chief Justice Marshall talking about suspicion on the totality of the factors. However, there was ample evidence to obtain a Foreign Intelligence Surveillance Act warrant for Zacarias Moussaoui. It would have been thought that the FBI would have had its house in order after their experience on Wen Ho Lee, when at the highest levels of the Justice Department, the matter rightfully went to the Attorney General at that time and they declined to issue a vice warrant and later determined, even by the review of the Justice Department, there was probable cause. That matter was subjected to very intense oversight by the Judiciary Committee at that time. We have pursued the oversight on Zacarias Moussaoui. We found in closed hearings--this much can be disclosed--the FBI agents are still not applying the correct standard. I wrote to FBI Director Mueller on July 10, 2002. We had the hearings on July 9. I asked when they would apply the right standard. Earlier this week on Tuesday there was another oversight hearing by the full Judiciary Committee, this time publicly, and the Department of Justice representative acknowledged the wrong standard had been applied, but says they have corrected it with examples. We are waiting to see the specifics. The impact of this is that there ought to be one umbrella under which the analysis of all of the intelligence agencies occurs. The amendment which has been offered here, the provision of section 201, which the pending amendment seeks to strike, has a laudable purpose. It is seeking that kind of coordination, but it simply does not require a director for a national office of combating terrorism, which would be a confirmed position. The language in the bill needs to be specified so the burden is on those who oppose the coordination to come forward. I wrote to Governor Ridge on August 1 referring to a meeting which had been held the previous day. I think it appropriate to quote briefly from this letter. I was very pleased to hear the President's affirmative response yesterday to the proposal to have analysis from every intelligence agency--CIA, FBI, DIA, et cetera--under the umbrella of the Department of Homeland Security with the Secretary having the authority to direct those intelligence agencies to supply his Department with the requisite intelligence data. The key language of the responsibilities which I believe should be in the bill, and I intend to offer an amendment if we cannot get this worked out by agreement is that the Directorate of Intelligence within the Department of Homeland Security shall be responsible for the following: (1) On behalf of the secretary, subject to disapproval by the President, directing the agencies described under subsection (a)(1)(B) to provide intelligence information, analyses of intelligence information and such other intelligence-related information as the Directorate of Intelligence deems necessary. The thrust of this language would give the Secretary the authority to command all the analyses unless the President disapproves. However, the language to have the President direct the Secretary to have this oversight responsibility is unworkable because you cannot take it to the President to ask for his authority on each occasion. However, if there is strong reason to disallow the Secretary's authority in a specific case, then it is subject to disapproval of the President. I do not think that is necessary, but in order to avoid any controversy, the language ought to be included in the statute. Although I have already put this letter in the Record before, I think it is worth including at this stage of the debate, so I ask unanimous consent that the letter be printed in the Congressional Record.

Mr. SPECTER

Mr. SPECTER. I ask unanimous consent--and I understand there is an objection, but for the record I ask unanimous consent to take up S. 2924.

Mr. SPECTER

Mr. SPECTER. Madam President, I will now ask the Senate proceed to consider the bill, and I object to my own request.

Mr. SPECTER. Madam President, I ask unanimous consent to proceed as in morning business to allow for the second reading of a bill. I understand there will be objection. However, this relates to the award of the special Congressional Gold Medal to the crew and passengers on flight 93. I had said on Wednesday and Tuesday, yesterday and the day before, that I intended to do this. Since making that announcement, I have discussed the matter with the Senator from New York, who is in the Chamber, and also the Senator from Texas, who is the ranking member of the Banking Committee. I asked the chairman to be present, but he had other business to which he had to attend. This unanimous consent request is to proceed to the second reading of the bill, which I will object to, and then to ask unanimous consent that S. 2924, which was previously introduced as S. 1434, be taken up, and the Senator from New York will object to that. I said that if he was absent I would object on his behalf. I am doing this so it will be known that every effort is being made by this Senator to get a resolution of S. 2924, which seeks to give gold medals, special Congressional Gold Medals, to all those who were on flight 93. There are others, including the Senator from New York, who would like to include other people. The Banking Committee ranking member wants to sit down--which we are committed to do early next week--to try to get it resolved. However, for purposes of the record, I would like to proceed now with the second reading.