Fred Thompson

Mr. THOMPSON

Mr. THOMPSON. Yes.

Mr. THOMPSON. If I may respond to that, the ultimate arbiter is not the President in this case. It is some Federal district judge. If the Senator from Louisiana was making this determination, I would be satisfied and happy and content the right conclusion would come. But the Senator has just given a scenario of his opinion as to what would constitute material change. Others may or may not agree with that. But there can be no dispute there is an additional requirement placed on the President. You can argue it is justified, that we didn't place that requirement on Jimmy Carter or Bill Clinton or the former President Bush or Ronald Reagan, but we are going to place it on this President at this time. You can make that argument. But I must say I have difficulty in seeing how one can argue this does not place additional requirements on this President to make additional determinations, on the one hand, and with regard to a more narrow area of things, that is terrorism, on the other.

Mr. THOMPSON. Yes.

Mr. THOMPSON. I may say in response, the issue is not jurisdiction of the court, whether you go to court. I agree with that. The issue is what happens once you get there. Under the current law, all the President has to establish is as an agency it is primarily involved in national security. Under this amendment, the President would have to establish something similar to that, and, in addition, the primary purpose of most of the employees within that agency had changed. That is a factual determination that is a colossal headache. It is a hurdle. Again, you can say the President ought to have that additional hurdle at this time. But again I hardly see how one can make the argument this is not a change in existing law and we are opening up, not just one but at least two, avenues for Federal district court recommendations.

Mr. THOMPSON. I am happy to yield for that purpose.

Mr. THOMPSON. I agree with that.

Mr. THOMPSON. I am happy to yield to the Senator from Pennsylvania.

Mr. THOMPSON. I know of no other. Obviously, if I am proven incorrect on that, we will supplement this record. But this is clearly the area-- which points out the importance of it, which points out the whole personnel issue--getting the right people in the right place at the right time with the right pay and the right responsibilities and the right accountability is what this is all about. Therefore, Congress-- many years ago, President Kennedy signed the bill--decided that the President should have the right, in personnel, with regard to matters of national security. And even broader than that: Intelligence, counterintelligence, and investigative, which is something I know my friend from Pennsylvania knows a great deal about--investigative. I do not know whether that has ever been exercised, that particular provision, but it is a pretty broad provision. Every President since Jimmy Carter has exercised that provision. As far as I know, it has not been controversial. This President Bush exercised it not too long ago with regard to the U.S. attorneys. There was a hue and cry that went up. It was said they may be prosecuting terrorists and we may have to move them around somewhat and all that. Well and good, but you included the secretaries.

Mr. THOMPSON. I beg your pardon?

Mr. THOMPSON. You could say that, but it was under this (B)(3) authority on national security grounds.

Mr. THOMPSON. The secretaries were a part of the unit and the assistant U.S. attorneys wanted to be organized. I am not familiar with that concept. When I was assistant U.S. attorney, when I was brought in. I stayed as long as they wanted me or I wanted to stay. When they elected another President, I was gone. Nowadays we have a civil service system and folks there were trying to take it one step further and unionize. In light of what is going on in the world, the determination was made it is not a good idea to have people prosecuting terrorists, bogged down with negotiating some of these things, some of which are quite foolish, we have been describing. For better or for worse, that decision was made. The secretaries were incorporated because the President's authority only goes to taking action with regard to agencies or subdivisions of the agencies. So the suggestion was made to the union representatives at that time, as I understand it, in talking to the OPM people, let's change the law so we can carve out secretaries. And they said: Oh, no, no, no. We don't want to do that. We do not like the issue framed just the way it is. That created some controversy with regard to the only time this President has exercised authority there. But as far as I know, historically, all Presidents have exercised it. It happens to be controversial. I simply do not understand. If we are going to debate whether or not this is merely supplemental, and we don't want to really do anything with regard to the President's authority, why in the world can't we go back to the traditional authority that every President has had? What is the message we are sending to the American people? Do some of our colleagues distrust this President who seems to have the trust of the American people with regard to matters of life and death? From all the polls I can read, I think he is doing the best he can. I think all Presidents always do the best they can. We rally around them in times of war and in times of great national issues. Do we really want to be fighting for days on end as to whether or not you can say it is significant or you can say it is insignificant? You can say it is in addition to, you can say it is a modification, and you can say it is supplemental. But do we really want to change that now for the sake of--if it is not 40,000 union employees, it is 20,000-- those who are in bargaining units? Only 20,000 are union members out of 170,000. My colleagues who support the Nelson amendment would suggest that we put up these additional hurdles with regard to the President's national security authority only with regard to homeland security. The area where he needs the authority the most is the only waiver area which they would take away. The Labor Department is not affected by this. The Energy Department is not affected by this. It is only the homeland security area. I have great difficulty in understanding the wisdom behind doing that at this time.

Mr. THOMPSON. I would be happy to yield.

Mr. THOMPSON. That is my understanding. I think it is important to understand the rationale behind that.

Mr. THOMPSON. Yes. Indeed. I do not think any of us want to spend all this time and effort on something that basically we think ought to happen in terms of reorganization of an important part of Government for naught and go before the American people and say we have failed because we insist on the status quo with regard to managing this thing but not the status quo with regard to the President's national security authority. I can't read the President's mind. We learned that our CIA Director declared war to his people some time ago, and he is taking a lot of criticism and abuse, quite frankly, from some of our people who are our allies--one, in particular, I think in a particularly shameless fashion, in order to get reelected in Germany, has said some things which I think is going to haunt the relationship between the United States and Germany for a while. In the midst of all that--albeit he was talking about the Iraq issue and not this one--I think it put the President in a difficult position when we are spending all this time debating. Again, this is the one area where we do not like status quo. Whether it is small, whether it is large, whether you slice it thin or you slice it thick, any way you cut it, it is additional steps that the President has to make, and additional opportunities for somebody to take into court, and things of that nature. I don't think it says there is no basis for a President saying he is going to veto something and I wouldn't support him just because he threatened a veto. I am sure that I have opposed Presidents who threatened vetoes before. My attitude was to let them veto it because I didn't think it was sound, or I didn't think there was a rationale for it. I am not afraid to say that one should look past that. I think it is going to be extremely difficult to go before the American people to explain why we insist on passing something that the President says he won't sign. But it is even more important that we look at the underlying rationale. I have been on the Governmental Affairs Committee ever since I have been in the Senate. The thing I leave the Senate with--the sentiment, the idea, the notion, the feeling--is how difficult it is to make even a little change in the way Government works. We have seen from Department to Department to Department overlap, duplication, billions of dollars wasted, $20 billion in 1 year, dysfunction, inability to incorporate information technology systems that private industry has been able to do for years, and human capital crises. We are going to be losing 45 percent of our workforce in about 5 years. We are keeping the wrong people and losing the right people. And we can't pay people what we ought to be paying them. We have seen all of that happen in the operation of government services, money, and so forth. It will hurt us if we incorporate all of that into this new homeland security bill. You take all of that history, all those GAO reports, all of those IG reports we have seen year after year saying the Government is a mess in many respects, and it cannot pass an audit. It is a management mess. People say ``Tut, tut.'' And you see an article in the paper every once in a while. We bring them down and chastise them. They go back for another year. The next year they come back, they are still on the high-risk list and nothing has changed. Take that in context then to the President. We are at war. We now perceive the need to organize our Government--at least a part of our Government--in a different way. We see that old systems in many respects simply need to be redone. We have a President who the American people are behind and support, and we still can't make any change in our system in terms of how we manage this new Department, in terms of a civil service system that Paul Volcker down at Brookings--it is not a conservative, liberal thing--Paul Volcker and everybody agrees is a broken system that underwhelms itself at every task it takes. And we still, at long last, even in light of this history of failure, even with the loss of thousands of Americans, even if we agreed on the need to reorganize, can't make any changes in a system that is at the heart of the changes that need to be made. The right people with the right pay and the right motivation and right accountability at the right place at the right time is what it is all about. Yet we are endangering--as we endanger as we speak--not being able to pass a bill to do one thing at long last. I fear for my country. Once this issue is over, I fear that it will be so difficult to make any changes in the way the Government operates that it is going to collapse administratively of its own weight. There is enough fault to go around. There are a lot of years. This did not happen overnight. But that is the only way, apparently, that we can change anything around here. We cannot come together and agree on changes that need to be made, apparently. I fear for my Government because if we cannot administer these departments, and we cannot make them run, we cannot get the right kind of people in the right places, none of this other stuff will work. It all gets back to personnel. You say: Well, we're OK 90, 95 percent. That 5 percent is the nut that holds the propeller on the airplane. It is just a little nut--bolt, let's say--it is very small in weight in comparison to the weight of the airplane, but it is just what holds everything together. It is a depressing situation when, in light of all this, at long last, we are hung up on some of these issues. The other side says: Well, you shouldn't be hung up. You ought to agree with us. And we are saying the same thing. But I will just pass on the merits of the case for a moment. We are not making much progress on doing things differently than we have done before, except with regard to the President's national security authority--we ought to diminish that somewhat.

Mr. THOMPSON. Yes.

Mr. THOMPSON. The Senator does not have the floor. That is OK. I will be happy to yield to the Senator from Louisiana.

Mr. THOMPSON. I yield for a question.

Mr. THOMPSON. In answer to that, the Senator is correct in that the Nelson language does not mention national security in the section that I am looking at that I think is the operable section and requires that the duty of the ``majority of the employees'' be engaged in ``intelligence, counterintelligence, or investigative work,'' and that all of it, or any of it, must be ``directly related to terrorism investigation.''

Mr. THOMPSON. If it is not related to terrorism, the President does not have the authority, the way this is drafted. But I suppose what I wonder is if, in effect, what we are saying--and the Senator is right; we are comparing apples and oranges, it sounds like with this prior case--but if what we are saying is that we want to make it so the President's actions are not judicially reviewable at all, why are we having this debate? I assume it is because we have an additional hurdle in there that every once in a while an honest President just couldn't make, such as the job changing. If the President is going to say, I have the authority, I can say whatever I want to say, I guess he could do that then. But if the President really does want to go to the trouble of determining whether or not the jobs of a majority of the people inside of an agency have changed, then that would be a situation where the President could not morally make such a determination.

Mr. THOMPSON. Yes.

Mr. THOMPSON. In answer to the Senator, I am aware of that. It is because if that section were in there, it would be inconsistent with this section.

Mr. THOMPSON. I am happy to yield.

Mr. THOMPSON. Mr. President, how in the world can we say that the Nelson amendment is a supplement to the current law, when the current law says the President may, and the Nelson amendment says the President may not? Square that one with me.

Mr. THOMPSON. In a moment. The current law says the President may issue an order if he determines that the agency or subdivision has a primary function of intelligence, counterintelligence, investigative, or national security work. The Nelson amendment says no agency shall be excluded because of the President's authority, unless the determination is made that the mission and responsibility of the agency or subdivision has materially changed. You call that supplemental to, or whatever you want to call it, but it was not there before.

Mr. THOMPSON. For a majority of the employees, current law says the agency has a primary function. The amendment says the majority of the employees within the agency have as their primary duty. The current law says, intelligence, counterintelligence, investigative, or national security. The amendment says intelligence, counterintelligence, or investigative work directly related to terrorism. You can call it anything you want on the Senate floor, but the fact is, the current law is designed to give the President authority. The amendment is designed to limit the President's authority. It could not be any simpler. I yield for a question, if I may.