Improving America's Security Act of 2007
IMPROVING AMERICA'S SECURITY ACT OF 2007 -- (Senate - February 28, 2007)
BREAK IN TRANSCRIPT
Mr. LIEBERMAN. Mr. President, while the two leaders are here, I want to thank Senator Reid for designating this urgent legislation which would implement the previously unimplemented or inadequately implemented recommendations of the 9/11 Commission. I also thank Senator McConnell, the Republican leader, for his cooperation and consent to moving this forward quickly on the Senate floor.
This bipartisan cooperation, obviously, is justified by the subject matter, homeland security, and in that regard I want to thank, again, Senator Collins. We switched titles in this session of Congress, but as I said to her when that happened, nothing else will change but our titles. She has been a wonderful partner and coworker on this measure once again, and it is in that spirit that we invite amendments, as Senator Reid said, from our colleagues who may think that, as good as the bill is, it could be better, and we urge them to come forward quickly.
In our committee, only one amendment was divided on a party-line vote. The rest were totally nonpartisan, and I hope that is generally the way things will go on the Senate floor as we consider the amendments brought forth.
Yesterday, to expedite matters, Senator Collins and I both made our opening statements, so we do not have those opening statements now. Therefore, we look forward to the Senator from California coming to the floor as soon as she can to offer an amendment, which I note will concern visa waiver sections of the measure. Senator Collins has another amendment which we will go to if Senator Feinstein does not come soon.
BREAK IN TRANSCRIPT
Mr. LIEBERMAN. Mr. President, I thank our friend from South Carolina for the amendment he has offered. We worked together when last this subject came before the Senate to bring about a result that I believe was a good one and in the public interest, which was that the Secretary of Homeland Security issued regulations to create an identity card. The card has a marvelous acronym, which doesn't sound as serious as it is. The acronym is TWIC, transportation worker identification card. This is one of the necessities of the post-9/11 age, that we need to move toward some filter for people working in areas that now have become higher vulnerability areas and are more likely targets for terrorism. Unfortunately, that includes our ports and, obviously, includes our airports as well, which have a separate ID program on which they are working.
I know there is some hope within the Department of Homeland Security that we are moving toward a more common program for a similar background check and card for postal workers at a host of different transportation-related locations to protect them and us from potential terrorist attacks.
Senator DeMint, I gather from his statement--and I appreciate his intentions here--intends by this amendment to codify in law the regulations the Department of Homeland Security has established for these identification cards for workers at our ports. I want to take a look at it. I know Senator Collins does as well. We want to work with Senator DeMint.
Clearly, the intention here is one we all share, which is to do everything we can, within reason and respectful of common sense and constitutional rights, to secure our critical transportation facilities, including our ports. I rise now to simply thank the Senator for offering his amendment, to tell him we will consider it with some thoughtfulness and look forward to working with him as we move toward a vote on this amendment.
BREAK IN TRANSCRIPT
Mr. LIEBERMAN. Mr. President, I rise to speak about two parts of the bill that is before us, the Improving America's Security Act, which is really the attempt by our committee and the Senate to finish the job the 9/11 Commission gave us to protect the security of the American people from terrorist attack and also to adopt for the first time a national all-hazards defense strategy that would set up a system that would not only be aimed at preventing and, if, God forbid, necessary, responding to a terrorist attack but also being ready and preparing every level of government to be ready to respond to a natural disaster.
The amendment offered by the Senator from South Carolina is pending. I wanted, in the interim, hoping others will come to the floor to offer other amendments or speak on that pending amendment, to speak about these two parts of the bill.
The first is about what is one of the most significant changes the bill would make; that is, to establish for the first time a dedicated grant program to assist States and localities in creating interoperable communications systems to be used to protect the American people in time of emergency. The ability of first responders to communicate with one another is fundamental at a time of disaster. Yet time and time again over the years, disasters have occurred, and police, firefighters, and emergency medical workers are unable to exchange critical information with one another, even indications of their location. Sometimes, as we saw in Katrina, certainly, not only is this a problem of their not being able to communicate with one another, it is a problem of their not being able to communicate at all. There is a painful and tragic cost to this failure to communicate or to interoperate with others in law enforcement, and that is that lives are lost.
This is a problem which was intensely made clear to all of us on September 11, 2001 and again during Katrina, but it is not new. In 1982, the record shows, communications difficulties frustrated the recovery efforts in response to the crash of the Air Florida plane right here in Washington, DC. In 1995, again the record shows communications difficulties complicated the response to the terrorist bombing of the Alfred P. Murrah Federal Building in Oklahoma City, OK. In 1999, communications difficulties again slowed the response to the shootings at Columbine High School near Littleton, CO.
Then came 9/11. The story of the communication breakdown among New York City's first responders is well known. It is well known because it cost the lives of some of the bravest Americans, some on duty and some off duty, who rushed to the aid of their fellow citizens and fellow first responders. But there were other communications breakdowns on September 11, 2001, as well--less well known but also breakdowns that hampered the response at the Pentagon and in Shanksville, PA.
After an in-depth look at the three incidents I have described--the Pentagon, the World Trade Center, and the plane that went down in Pennsylvania on 9/11--the 9/11 Commission wrote:
The occurrence of this problem at three very different sites is strong evidence that compatible and adequate communications among public safety organizations at the local, State, and Federal level remains an important problem.
That was the 9/11 Report which came out in 2004. We are now at the end of February 2007, and that problem remains as real and intense as ever.
The Commission recommended expediting and increasing the assignment of radio spectrum for public safety purposes. In 2005, as part of the Deficit Reduction Act, Congress set February 2009 as the deadline for broadcasters to transition to digital signals, which will free up much-needed spectrum for first responders. A lot of us, including myself, believed that delay to February 2009 was too long. The occupant of the chair remembers that well; we stood together on that. But so be it, that is what it is.
Since that time, Hurricane Katrina devastated the gulf coast, particularly the great city of New Orleans, and reminded us again how much more needs to be done to improve communications operability, to sustain the very operation of an emergency communications system, and interoperability, the ability of different first responders to communicate with one another.
The communications infrastructure in Louisiana and Mississippi at the time of Hurricane Katrina was decimated. Once again, difficulties in communicating among officials and first responders significantly impeded rescue and relief efforts. Mississippi Governor Haley Barbour drove the point home when he said the chief of the National Guard in Mississippi ``might as well have been a Civil War general for the first 2 or 3 days' because in order to get information, he had to use runners. His runners had helicopters instead of horses, but the point was clear. The lack of operable or interoperable communications equipment put first responders in that disaster back about a century and a half.
The Homeland Security and Governmental Affairs Committee, which is proud to claim the Presiding Officer as a member, investigated the preparations for and response to Hurricane Katrina, a 9-month investigation that produced a 700-page report and almost 90 recommendations. We enacted some of those recommendations last fall as part of the Post-Katrina Emergency Management Reform Act. That legislation, which I am proud has largely become law, included ways to improve planning and coordination, establish a much needed national emergency communications plan, and strengthen technical guidance and assistance to local first responders. The newly created Office of Emergency Communications, which was created therein, will be responsible for carrying out many of those responsibilities. Like many of the homeland security challenges we face, achieving nationwide operability and interoperability of communications will require significant resources, a lot of money. One estimate from our Government several years ago put the figure at $15 billion. Testimony before the Senate Commerce Committee this past month estimated that the cost may be as high as $50 billion to create a genuinely interoperable, disaster-resistant communications system for our country. We don't know the exact price tag, but we do know the costs will be significant. We do know they are beyond the ability of State and local government themselves to provide. That is why title III of the legislation before the Senate, the Improving America's Security Act, establishes a dedicated interoperability grant program for first responders which will put us on the path to nationwide operability and interoperability, capable of surviving and helping America survive a potential terrorist attack or a natural disaster.
This is an important investment, a kind of leverage for the Federal Government to create in partnership with the States and local governments. Of course, part of the reason there is not only financial need but programmatic policy justification for this. The kinds of attacks, the kinds of natural disasters we are talking about, as we saw most painfully in Katrina, have national consequences. The Federal Government needs to be there to make some additional investments on which the State and local governments will build.
The legislation, S. 4, before the Senate today authorizes $3.5 billion over 5 years, beginning in the coming fiscal year. That is on top of the $1 billion interoperability grant program to be administered by the Department of Commerce during this fiscal year, the result of previous legislation. This is the beginning of moving toward a genuine national system, if we can adopt this and fund it, a call to the States and localities to match that money, each in their own way, so we can build this survivable network of communications.
Individual States will be able to apply for grants under this new program, which will be administered by FEMA, with assistance from the Office of Emergency Communications. The committee was very anxious, as the Presiding Officer knows, to not only create a fund of money and throw it out there for every local official who had some idea about how to create interoperable communications--all applications will have to be consistent with each State's communications plan and the national emergency communication plan which is being developed and expanded by the new Office of Emergency Communications. In other words, to get money, you have to prove you are going to fit into a statewide and national plan for interoperability of communications.
Incidentally, the national element of this is pretty obvious. In Katrina, you had a lot of first responders streaming into the gulf coast, and New Orleans particularly, when local first responders were overwhelmed. They were all bringing their own communications systems with them. A similar response occurred--a really moving patriotic response--after 9/11 to New York City, with first responders from all over the country coming in.
What do we want at that point? A Tower of Babel, where people cannot communicate with one another, or the ability, easily, as part of a national communications plan, to do so? Obviously, the latter is what we want.
States, incidentally, which would be the recipients of this money, would be required to pass at least 80 percent of the grant funding to local and tribal governments. The money could then be used for a range of activities: planning, system design, engineering, training, exercises, procurement, and installation.
We also include a minimum amount of funding for each State because interoperability is an all-hazards concern. In other words, we are having a well-intentioned, good-faith debate about homeland security grants and to what extent--as some would say--should they all be distributed based on risk or be distributed with a minimum amount going to each State?
In this case of interoperability of communications, it seems to me the argument is compelling there ought to be some element that gives a minimum to each State because what we are trying to establish is a national emergency communications system that will be ready to respond not just to a potential terrorist attack, but to natural disasters which, obviously, can occur anywhere in the country. In other words, the ability for first responders and other emergency responders to communicate with one another, either by voice or through data sharing, is necessary regardless of the nature of the emergency.
In short, we owe it to the memory of the firefighters and police officers who gave their lives on 9/11, some of whom lost their lives because of the absence of interoperable communications, and to the commitment of first responders who struggled under such adverse circumstances to do their jobs in the aftermath of Hurricane Katrina, and to first responders and emergency managers today all across our country who are ready to respond in the time of our need to pass this legislation, to provide the funding necessary for this critical effort, and to move the Nation's first responders toward real 21st century operable and interoperable communications in the face of disaster.
I have one more topic I want to discuss at this time. The one I have just talked about--a dedicated fund for interoperable communications--I think is one of the most significant parts of the bill. It is the beginning of a transformational partnership between the Federal, State, local, and tribal governments that I am convinced will have a measurable, significant effect on the security of the American people.
This next topic I want to talk about has to do with a provision in the committee bill which extends employee rights and protections to airport screeners who work for the Transportation Security Administration. Frankly, I do not consider this to be a major part of the bill. To me, it is correcting an inequity that exists in current law. I honestly do not know why anybody would oppose it. I will listen to the arguments, but I want to contrast it with the section I just described, because if the last 24 hours are any indication, this section may receive more attention than any other section of the bill. The White House has indicated it will veto the bill if this section is in it. I respectfully do not understand that.
Colleagues, I know, are preparing to come to the floor to try to strike this section from the bill. I think this section is an act of elemental fairness, granting quite limited employee rights to airport screeners who are now denied--I am using this term beyond its judicial meaning--equal protection that is enjoyed by most every other Federal employee, including most every other Federal employee involved in security.
So I hope, one, we do not spend a disproportionate amount of time on this section; and, two, we do not allow it to get in the way of us fulfilling our urgent responsibility to finish the job of enacting the recommendations of the 9/11 Commission, which S. 4, the legislation before us, would do.
I wish to spend a few moments talking about this section of the bill. The fact is, since the Transportation Security Administration was created in 2001, TSA screeners have been denied the same employment rights and protections as almost all of their fellow workers in TSA. In fact, they have been denied the same rights and protections that are enjoyed by most of their fellow employees at the Department of Homeland Security, such as the Border Patrol and Customs and Immigration officers.
TSA screeners--often also known as TSOs, transportation security officers--are familiar to most Americans because we see them at every airport across our country. Thanks, in part, I believe to their hard work and diligence, we have been spared a repeat of September 11, and air travel generally is safer than it was before that day.
They deserve to be treated equally in their employment rights. It is long past time to provide the same protections to TSA screeners as are enjoyed by their colleagues.
I wish to take just a moment to review the history of how this inequality came to exist. Shortly after the September 11 attacks, Congress federalized the work of passenger and baggage screeners at U.S. airports. TSA was created within the Department of Transportation. It was subject generally to the same personnel rules as the Federal Aviation Administration. Responding to the sense of emergency at the time, however--remember, this was right after 9/11--Congress gave the head of TSA broad authority to set personnel rules at his own discretion for airport screeners.
In 2002, when Congress established the Department of Homeland Security to coordinate and strengthen our defenses against manmade and natural disasters, TSA was removed from the Department of Transportation and put into the Department of Homeland Security.
At that time, Congress engaged in extensive debate with quite serious partisan and political overtones about how to apply civil service law to employees at the new Department. This was an amalgam of 22 different agencies, almost 180,000 employees, most of whom were coming already with their own employee rights--their own rights--most particularly, to join a union.
Ultimately, and contrary to my own position, Congress authorized the Department of Homeland Security Secretary to waive certain provisions of civil service law which Congress and the President believed were necessary for national security purposes.
Meanwhile, since 2001, TSA has declared itself exempt from laws enforcing the most basic employee protections, including the Whistleblower Protection Act, the Rehabilitation Act protecting Federal employees with disabilities, the Federal Sector Labor-Management Relations statute, appeal of adverse personnel actions to the Merit Systems Protection Board, and veterans preference laws.
In each case, the Transportation Security Agency has devised its own version of these fundamental employee protections substantially below the standard that Congress and the President decided were appropriate generally for DHS employees.
So now you have this anomaly because of this unusual statutory history where TSA screeners have a much lower level of employee protection than most of the other employees at the Department of Homeland Security.
It is now 5 years after the agency was established, and TSA screeners still lack those basic rights that are available to their colleagues at DHS and throughout the Federal Government. That is exactly the inequity this small provision in this bill, S. 4, aims to overcome.
For example, TSA screeners have no individual right to appeal to the Merit Systems Protection Board when they believe they have been subject to unlawful retaliation for protected whistleblowing activity. OK, this is exactly what we want employees of the Federal Government to do. They are our representatives. We are paying them. If they see something wrong going on, we want them to blow the whistle, and we do not want them to be punished as a result.
But under the current state of the law, TSA screeners do not have any right to an outside appeal when they believe they have been subject to unlawful retaliation because they blew the whistle on something or someone else they saw doing something they thought was wrong.
Second, TSA is not bound and the screeners are not protected by the Rehabilitation Act. So TSA is not bound to make reasonable accommodations for a disabled screener still able to perform his duties. This is the basic mindset we have overcome in recent decades, that somebody who may be disabled in one way is--if I can make up a word--abled in many other ways and perhaps, therefore, able to carry out the responsibilities of a screener at one of the security checkpoints we have all gone through. We have all gone through them, so we know there are a number of those functions that could be performed by somebody who may have a disability. But there is no right to appeal if an employee, a screener, thinks they have been discriminated against based on that.
TSOs--that is, screeners--are allowed to join a union, but they cannot collectively bargain as other security forces at DHS and throughout the Federal Government can do. Nor can TSOs claim an unfair labor practice with the independent Federal Labor Relations Authority.
I want to stress something. Screeners at TSA can join a union. They cannot strike. There is nothing in this small provision in S. 4 that will give them the right to strike. There is nothing in this provision that will give them the right to strike. I fear people hearing about this provision may think we want to extend some employee rights to TSA screeners and may think, oh, my God, at a time of crisis these people will just walk off their jobs and strike. It is illegal. They cannot do it. It is the same limitation that is on Federal employees who have collective bargaining rights generally. It is just that these screeners have much less, many fewer rights than others do. They cannot claim an unfair labor practice with the independent Federal Labor Relations Authority.
Finally, unlike the rest of the Federal Government, TSA limits the veterans preference in hiring and other personnel decisions to veterans who retired from the Armed Services, and denies the preference to those who were honorably discharged. Of course, it is the vast majority of men and women who have served our country in uniform who are honorably discharged as opposed to serving until the time of their retirement. But they do not get any veterans preference in hiring and other personnel decisions at the TSA.
Is that a big deal? It is if you are a veteran. One of the things this provision in this bill would say is that, the full veterans preference should apply for TSA screeners.
So that is the amendment we adopted, the literal effect of which is to instruct the Secretary of Homeland Security to include TSA screeners, either under the departmentwide human resources management system or under the specialized system that now applies to TSA employees other than the screeners, in the most specific way, which leaves no ground--no gaps for misunderstanding. Although there are people, I fear, who are misunderstanding or misstating it, this amendment simply and directly says that TSA screeners have to be included under the departmentwide DHS human resources management system, or under the specialized system that applies to TSA employees other than the screeners.
I know critics of this provision are arguing right now that TSA needs flexibility to manage the screener workforce in a way that provides security when, where, and how it is needed, such as when the threat level is raised, or when a new threat becomes evident, or when unexpected problems arise at a particular location so the Administrator of TSA would want to move screeners from one airport to another. This argument is not based on fact. The concerns are misplaced. The committee bill, in this small section, retains flexibility for the TSA Administrator to promptly redeploy employees, change their assignments, or otherwise respond to problems as they arise. The bill recognizes this is a department which has to have the flexibility, the management flexibility, to respond to emergencies. In granting these TSA screeners the same employee rights most everybody else within the Department, including people involved in border patrol, for instance, and other security functions, we retain nonetheless the flexibility of the administrator to redeploy his forces at a time of crisis.
There is another reason to do this, I believe, apart from equity, and that goes to the effectiveness of the TSA screeners and the Department of Homeland Security employees generally. Personnel management at TSA, the record will show, has been troubled since its inception. The record will show the agency has experienced unusually high rates of attrition--people leaving, unusually high rates of workplace injury, high rates of absenteeism, and other indications of low employee morale. Anybody in the private sector will tell you if you have high attrition, high workplace injury, absenteeism, and low morale, you have a problem, and the problem is going to mean the service you are intending to provide is not going to be what you want it to be.
I would say those problems interfere with establishing and maintaining the core of experienced and professional screeners we need, that the American people need to ensure aviation security. From conversations I have had with screeners, simply taking a step to put them on an equal plane with everybody else in TSA or DHS in terms of their employee rights will go a long way toward creating the kind of morale, devotion to work, and avoidance of workplace injury that will better serve our Nation. I know the Administrator of TSA, Kip Holley, has recently made some efforts to improve personnel management, but I believe they haven't gone far enough, and this amendment will take them a large step forward.
I want to say finally that when the Homeland Security and Government Affairs Committee marked up the bill, there was apparently a Transportation Security Agency screener by the name of A.J. Castilla who was there in the public section of the room. Later he wrote a note of thanks in which he said:
We TSOs aren't asking for special treatment, merely to be made whole and equal again in the eyes of the law.
A.J. Castilla is committed to his job, is as committed as any other employee of the Department of Homeland Security or the Transportation Security Administration, and it is time to give him and every other TSA screener parity with those other Federal employees so that they may better do the critical work we ask and need them to do.
I appreciate the opportunity to speak at some length about these two provisions. Both are, I think, important. One is a dedicated grant program for interoperable communications that, as I said, I think will have a critical effect and I hope we will discuss the positive effect. The second, I am afraid, will be discussed more than it deserves. That provision is fair. It is simple equity. It treats working people with the fairness they deserve, and in fact will improve our security, not hamper it, as its critics say. I urge my colleagues to look at both carefully, and particularly when an amendment is offered, as I fear it will be, to strike the section that would correct the inequity now suffered by transportation screeners, when it comes to the floor, that my colleagues will come, will listen, and ultimately will vote to reject that amendment.
BREAK IN TRANSCRIPT
http://thomas.loc.gov/