From bipartisan beginnings, homeland bill now a divider
Most members of Congress have voiced support for President Bush's proposal to consolidate 22 existing federal entities into a 170,000-employee Homeland Security Department. But legislation to implement Bush's plan for what would be the largest reorganization of the federal government in 50 years has triggered partisan clashes over administrative flexibility, product liability, security-screening deadlines and other key issues affecting the technology industry.
"I had hoped that we could set up a department that would be lean and agile and of the future, that would maximize the use of technology, that would capitalize on the spirit of innovation and new technologies,"House Minority Whip Nancy Pelosi, D-Calif., said during floor debate on the House version of the bill. "But, sadly, it does not."
Pelosi, who served as ranking Democrat on the House Homeland Security Select Committee, has said the GOP-favored plan would create a "bloated, 1950s, bureaucratic department" while stripping its employees of civil-service protections, weakening information-disclosure laws, and providing the manufacturers of defective counterterrorism technology with "unprecedented" liability protection.
House Republicans, whose bill largely reflects Bush's homeland security strategy, maintain that the new department must be "flexible and adaptable" in order to effectively combat terrorist threats.
"Creating a new department in a time of war, merging various cultures and organizations, and significantly increasing the people and resources involved will be a tremendous management challenge," Rep. Mac Thornberry, R-Texas, said recently. "The new secretary should have some ability to reorganize inside the new department as developments warrant. He or she should also have greater procurement and contracting authority to help identify, develop and then field technology as rapidly as possible."
The legislation would consolidate homeland security functions into key mission areas such as intelligence and warning, border and transportation security and critical infrastructure protection. The Bush administration supports most provisions in the version the House passed July 26 on a 295-132 vote. But the White House and House GOP leaders are embroiled in a protracted battle with Senate Democrats, whose competing language has drawn a veto threat because of its civil-service provisions.
"You see, they want to micromanage the process. They're more interested in special interests in Washington [than] protecting the homeland," Bush said of Senate Democrats on Monday, during a campaign event for House Budget Chairman Jim Nussle, R-Iowa. "I expect there to be a bill on my desk soon ... that gives me the flexibility and future presidents the flexibility necessary to do everything we can to protect the American people from an enemy which hates."
Presidential "flexibility" is the key sticking point in the Senate language, which would preserve the union rights of federal employees who transfer to the Homeland Security Department without changing their job responsibilities.
Current law allows the president to waive certain federal employees' collective bargaining rights for national security reasons. Democrats, and some moderate Republicans, have tried to exempt Homeland Security Department employees from that waiver authority, saying it could undermine morale and make it difficult for the new department to retain skilled workers.
But most Republicans have argued that granting such an exemption would give the president less flexibility and authority over the new department than he has over any other federal agency. They maintain that the new department needs more flexibility than other agencies-not less-in order to protect the nation and its critical infrastructures from terrorist attacks.
"To hire people with the background and experience we need to fight cyberattacks, the federal government must compete with industry," Thornberry said. "The traditional civil-service system hinders our ability to do so. New incentives, flexibility in hiring and firing, and greater flexibility in hours and benefits will all help us get and keep the top quality people we need."
The House and Senate bills also differ dramatically on the issue of product liability. The House bill includes a provision to limit the potential legal liability of technology firms and other companies that contract with the new department. The language would shield the manufacturers of certain anti-terrorism products from lawsuits in state court. It also would prevent punitive damages in those cases and would prohibit compensatory damages from exceeding the company's maximum liability insurance coverage.
Republicans have argued that without such protection, a fear of potential lawsuits could discourage high-tech firms from developing innovative anti-terrorism products. But Democrats have blasted that provision, arguing that it could give "complete immunity" to companies that knowingly manufacture defective anti-terrorism devices.
The Senate legislation does not include a liability provision, but Senate Republicans are likely to offer floor amendments that would provide federal indemnification for companies facing potential lawsuits over homeland security-related products. Republicans have noted that many companies have been unable to sell cutting-edge counterterrorism technologies to the government because insurance companies, fearful of the liability risks stemming from major terrorist attacks, are unwilling to provide adequate coverage.
The House bill also includes a GOP-favored provision to extend the deadline for installing explosive-detection devices to screen all checked baggage at U.S. airports. Last year's aviation security law set a Dec. 31 deadline, but GOP leaders have said many airports will either be unable to meet that deadline or will have to spend millions of dollars on antiquated devices. They maintain that by extending the deadline to March 31, 2004, the House bill would enable some airports to wait until more effective technology becomes available.
The Senate bill would leave the Dec. 31 deadline in place. But Senate Commerce Chairman Ernest (Fritz) Hollings, D-S.C., has introduced a separate measure that would let the Transportation Security Administration exempt up to 40 airports from the deadline. TSA chief James Loy has voiced support for such a limited exemption but has argued against a "blanket extension" because he said most airports will be able to meet the deadline.