The Administration strongly supports House passage of H.R. 5005 as reported by
the House Select Committee on Homeland Security. This bill reflects the
President's proposal. The President commends the House and the bipartisan
leadership for the speed with which this bill has been moved to the floor.
H.R. 5005 establishes the four main pillars of the President's proposal:
- Information Analysis and Infrastructure Protection. Under the bill,
the Department of Homeland Security will be able to comprehensively
assess the Nation's vulnerabilities to terrorism, analyze information
regarding threats to the homeland, and map the threat information
against the Nation's vulnerabilities.
- Science and Technology. The bill supports the President's proposal
to establish a network of national laboratories focused on homeland
security science and technology and transfers most of the requested
Department of Energy programs to the new Department.
- Border and Transportation Security. The bill transfers the principal
border-security agencies -- the Coast Guard, the Customs Service, and
the Immigration and Naturalization Service's (INS) law enforcement and
border management functions (including border inspectors and the Border
Patrol) -- to the new Department, allowing the Secretary to establish
seamless border security operations.
- Emergency Preparedness and Response. Under the bill, the Department
of Homeland Security, building on the strong foundation laid by the
Federal Emergency Management Agency (FEMA), will coordinate all major
Federal response entities as proposed by the President, allowing for a
more direct line of authority during incidents of national significance.
However, the President strongly believes that FEMA needs to be part of
the Department and would resist any effort not to include FEMA in the
Department or any effort to break FEMA into separate parts.
H.R. 5005 establishes a strong framework for working closely with state and
local governments, the private sector, and citizens, to ensure that public and
private resources are properly aligned to secure the homeland.
In addition, the bill provides the new Secretary with invaluable managerial
flexibility. It provides budgetary flexibility that will enable the Department
to stand up rapidly and to respond quickly to the threat posed by an agile,
adaptive enemy. The bill permits the Secretary to reorganize the Department to
improve security and reduce redundancy and inefficiency. The bill will also
speed the procurement of new technologies vital to securing the homeland.
Most importantly, the bill provides the Secretary a prudent degree of
flexibility in the area of personnel management while protecting vital employee
rights, including protection from discrimination, veterans' preferences,
whistleblower protections, and collective bargaining. This flexibility will
allow the Secretary to ensure that every employee of the new Department is able
to realize his or her full potential in the noble mission of securing the
The Administration is pleased that the Select Committee preserved the
President's long-standing authority to exempt from the operation of the Federal
Labor Relations Management Act particular agencies involved in important
intelligence, investigative, or national security work, when necessary to
protect national security. The Administration would strongly oppose any
amendments that would impair or limit in any way these vital authorities, which
have been used with care and restraint by every President beginning with Jimmy
Carter. Any such limitation or impairment would be unwise and anomalous in an
Act establishing a Department whose primary mission is to protect the homeland
against terrorist attack. Moreover, no sound reason exists to provide rights
beyond those enjoyed by other federal employees. Therefore, the President's
senior advisors would recommend a veto if the final legislation included such a
The Administration strongly opposes an amendment which would provide
indemnification for companies that sell counterterrorism technology to the
Federal government, as well as state and local governments. Such an amendment
is fiscally irresponsible due to the potential for excessive costs that can be
neither reasonably estimated nor controlled.
The Administration is also pleased with the bipartisan agreement on the
appropriate method for reassigning the authority to issue and deny visas to the
Department of Homeland Security, which closely tracks the President's proposal.
The Administration believes that the Department of Homeland Security should be
the lead agency for all homeland security threats -- including biological
terrorism, potentially the gravest homeland security threat of the 21st century.
It is important that the Secretary have the responsibility to set priorities to
prepare for and respond to bioterrorism. While the Administration would have
preferred that the Secretary have both the responsibility and authority at the
Department of Homeland Security, the Administration appreciates the bill
language enhancing the coordination between the Department of Homeland Security
and the Department of Health and Human Services.
While the Administration strongly supports the bill as a whole, the
Administration does not support certain significant features that will make the
new Department less effective in fulfilling its missions.
The Administration appreciates that the Committee transferred INS enforcement
functions to the new Department, but is deeply concerned that the bill retains
INS' services functions in the Department of Justice. The services and
enforcement functions of the INS are mutually supportive, are governed by the
same provisions of immigration law, and rely for their effective operations on
the same information systems. Therefore, both the service and enforcement
elements of the INS should be moved to the new Department. The Administration
also believes that it is important that the Executive Office of Immigration
Review and associated adjudicatory functions be moved to the new Department, in
order to maintain consistent and uniform control, interpretation, and
application of immigration law and policy. Finally, the Administration is
concerned with provisions of the bill relating to internal review of documents,
qualifications for nominations, and legislative recommendations that are
inconsistent with the President's constitutional authority to supervise the
unitary executive branch and with his authority under the Appointments Clause
and the Recommendations Clause of the Constitution.
The Administration commends the responsible committees for moving the entire
Customs Service into the new Department of Homeland Security. However, the
Administration is concerned that the reported bill inappropriately restricts the
Secretary's operational flexibility with respect to certain defined functions of
the Customs Service in ways that could have adverse unintended consequences for
both security and trade facilitation. The Administration is also concerned that
the bill generally leaves legal authority with the Secretary of the Treasury,
even though all operational responsibility to enforce these authorities will
rest with the Secretary of Homeland Security, and with the Customs Service.
Although the Administration appreciates provisions to ensure that the legal
authority retained by the Secretary of the Treasury would be delegable by him to
the Secretary of Homeland Security, the Administration believes that legal
authority and operational responsibility should be permanently aligned in a
single Cabinet Department, with a single Cabinet official accountable for the
border security and trade facilitation missions.
The Administration opposes the portion of the bill that separates the
intelligence components of the Coast Guard, INS, the Transportation Security
Administration (TSA), Customs, and the Federal Protective Service from their
parent entities. These intelligence units are tightly integrated with the
day-to-day operations of their parent entities, and their separation will
undermine the effectiveness of these organizations. The Administration believes
that the Secretary should be given the discretion to determine when and how to
reallocate the intelligence units of the various components of the new
Department, consistent with operational needs.
The bill does not include the Computer Security Division of the National
Institute of Standards and Technology (NIST), as requested in the President's
proposal. The Administration believes inclusion of this function would
strengthen the cyber security abilities of the new Department.
The Administration waited four months for Congress to act on its emergency
supplemental request. The emergency supplemental package agreed to by Congress
is $1 billion short of what the Administration said it needed to implement a
rational plan to meet current law deadlines, and additional resources will not
be available for months, if they come at all. And Congress has imposed
additional mandates in the supplemental that are stricter and more inflexible
than the original law. Based on these facts, the TSA's ability to meet current
law deadlines without major disruption to passengers, airports, airlines, and
the overall economy has been severely undermined.
The new Secretary of Homeland Security must have the freedom and the flexibility
to manage the new Department. The new Secretary must be able to move money and
resources quickly in order to respond to real threats to the Nation's security.
The new Secretary will require considerable flexibility in procurement,
integration of information technology systems, and personnel issues, while
maintaining critical civil service protections. The Administration opposes any
further reduction to the managerial flexibility that is now provided in H.R.
5005, and the President's senior advisors would recommend he veto any bill that
substantially diminishes the Secretary's flexibility to effectively manage the
Statutory White House Office
The Administration accepts the Select Committee's action in establishing a
statutory Homeland Security Council to coordinate Executive Branch homeland
security policymaking. This Council is modeled on the National Security
Council, which has served the Nation well and represents an appropriate balance
between the need for statutory recognition and the need to preserve the
President's authority, flexibility, and confidential relationship with Executive
Office of the President staff and White House advisors. The Administration
would strongly oppose more intrusive encroachments on the President's
relationship with and authority over White House staff; such encroachments
would impair his effectiveness in carrying out his constitutional
responsibilities and protecting the homeland. The President's senior advisors
would recommend a veto of any legislation that would establish a statutory
Office of Homeland Security within the White House headed by an official subject
to the advice and consent of the Senate, or which would erode the President's
confidential relationship with his White House Homeland Security Advisor, or his
ability to exercise proper control over the operations and functions of the
Executive Office of the President including the preparation of the President's