T2 B19 Wolfensberger Memo Fdr- Entire Contents- Memo Summarizing Testimony Re Making Select Committee On Homeland Security Permanent 767

/ MEMO March 25,"2004 TO: FROM: SUBJECT:

LEE H. HAMILTON DONWOLFENSBERGER TESTIMONY OF HOUSE COMMITTEE CHAIRMEN AND RANKING DEMOCRATS ON MAKING SELECT COMMITTEE ON HOMELAND SECURITY PERMANENT

This is in response to your interest in the testimony delivered March 24 before the Homeland/vy / Security Subcommittee on Rules by the chairmen and ranking minority members of various Housey^^^ y committees of shared jurisdiction on the advisability of making the House Select Committee on Homeland Security Permanent. To follow-up, I have downloaded and summarized the statements of those who presented written testimony. Rep. Porter Goss, Chairman, House Permanent Select Committee on Intelligence - Goss, who is also a member of the Homeland Security Committee (and its Subcommittee on Rules which held this hearing), points out that for many years the intelligence committee (HPSCI) has been the only standing select committee of the House. It was created to provide Congress the ability to oversee disparate departments and organizations throughout the Federal Government and has sole jurisdiction over U.S. intelligence and intelligence related activities-not just national and military intelligence agencies, but State, Treasury and FBI as well. He says HPSCI is able to do oversight in a thorough and constructive manner without redundancy or he interference of other House oversight committees. Their exclusive jurisdiction "is a critical element of our ability to conduct complete, across-the-board, non-partisan oversight." This has included oversight of the intelligence elements of counter-terrorism and homeland security, In fact, in January 2001 the leadership created a working group to examine the terrorist threat and the U.S. homeland (after Sept. 11 it was elevated to a subcommittee). Goss says that while HPSCI "will continue to advocate for its proper jurisdiction to oversee and authorize intelligence community elements including the Terrorist Threat Integration Center (TTIC) and the Department of Homeland Security's Information Analysis (IA) Division.... there is more to homeland security than intelligence." The greatest capability that the Select Committee on Homeland Security can provide is to focus on the enormous Department of Homeland Security and the integration of its many, many functions. "It can pass its findings on to the relevant committee or committees that will be charted with the long-term task of DHS." Goss concludes that intelligence plays an important role in protecting the nation, and a strong relationship must be developed between the intelligence community and the Department of Homeland Security. Rep. Robert Goodatte, Chairman House Committee on Agriculture Goodlatte takes exception to those who argue that the new department should not be subject to the overlapping jurisdiction of 88 committees and subcommittees in the House and Senate. It is not a matter of marking one's jurisdiction or protecting a power base, but rather of adequately covering the complexity of the various issues with which Congress has to deal. "The fundamental responsibility of the committees and subcommittees of the House of Representatives is to ensure that the expertise exists to properly oversee the functioning of our government." The process of dividing jurisdictions , is dynamic, and changes are made to take into account the complexities of programs committees create and oversee. Additional committees and subcommittees are sometimes created to provide additional perspectives on issues. This is seldom done "to minimize the accountability of the Federal Bureaucracy as would be the outcome if a new permanent standing Committee on Homeland Security were to be created." Goodlatte notes that when DHS was created, 3,200 employees were transferred from the Department of Agriculture whose responsibility was inspecting people and commercial goods coming into the

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country for intentional or unintentional pests that may harm American agriculture. The Ag Committee should remain concerned about unintentional incidents since they are a constant threat, though they are just as concerned about intentional threats. "My fear," Goodlatte continues, "is that a standing Committee on Homeland Security, whose purpose it is to focus on the mitigation of terrorist threats, might not pay attention to or recognize the damage that is caused by unintentional introductions of plant or animal pests or disease." Goodlatte says he cannot see how a single standing committee, with a nominal staff, can ever amass the expertise necessary to properly oversee this new Department." He is therefore "skeptical of any effort to establish such a permanent standing committee" and urges the subcommittee "to be very cautious in considering change..,to the underlying jurisdictional structure of the House." Rep. Joe Barton, Chairman, House Committee on Energy and Commerce - Barton, who just took over as chairman of Energy and Commerce a month ago, says he's new to the game. He says the work of the select committee has been good, focusing attention of the Congress on some of the most critical issues facing America. "But, with all due respect, the Select Committee's work here is done." The House has its house in order. His committee has done "incredible work" both before and after 9/11 "to protect the homeland (conducting over two-dozen homeland related hearings and putting out a half-dozen homeland related bills. The Commerce Committee will continue to fulfill its responsibilities in this area, and, "frankly, the Select Committee has become an impediment to further progress." There is no way to distinguish thejurisdiction his committee and others have over homeland security from issues they would otherwise work on-whether you're talking about security at energy installations or about public health. To those who say the DHS should not have to answer to dozens of committees, Barton responds that the answer is not the formation of a whole new committee. The answer "is to ensure that someone coordinates th needs of Congress with the Department," and a new committee of 50 members won't do any better job than a liaison staffer in the Speaker's office, and would cost a whole lot less. Barton concludes that we don't new a new committee, we need fewer committees. "What we need is to consolidate th wisdom, and competition, and experience, and excellence of the members in the existing standing committee that have the dedication to get the homeland security job done." Rep. Sherwood Bochlert, Chairman, House Committee on Science - The Science Committee played a central role in the creation of DHS and has vigorously exercised its oversight of it ever since. They are especially proud of having created the Science and Technology Directorate and the Advanced Research Projects Agency in the Department. The Science Committee has also overseen cybersecurity, programs for firefighters, and visas for scientists. It has also discussed holding some joint hearings with the select committee. But, Boehlert continues, "I do not believe the House needs a committee devoted exclusively to Homeland Security," and in fact believe "that such a committee is likely to prove counter-productive." The reasons he opposes: (1) creating such a committee would be a reversal of the Republicans commitment since 1995 to reducing the number of committees and staff; (2) there is no demonstrated need for a permanent (Committee. (3) there is no evidence existing committees are not doing their job of overseeing the components of the department; (4) there are ways to deal with turf issues without creating a new committee; and, (5) a permanent committee "will impede, not assist, proper congressional oversight because any look at the tasks DHS is performing "needs to be looked at in the context of how the federal government as a whole is carrying out that job," e.g., in science and technology. Second, committees "can tend to become captives of the agencies they oversee." This would be especially unfortunate in the case of DHS which has been given unusual latitude in its founding legislation. There are numerous ways to prevent hopeless proliferation of committees pestering DHS such a assigning primary legislative

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jurisdiction over each directorate of DHS to the appropriate standing committee. A sensible system of DHS oversight can continue under the peaceable and collegia! situation that has marked the process thus far-k"remarkably, even uncharacteristically free of turf battles." Boehlert concludes, "A new permanent committee is more likely to create turf battles than prevent them." Rep. James F. Sensenbrcnner, Jr., Chairman, House Committee on the Judiciary (note: his testimony runs 36 pages single spaced) - Sensenbrenner says "the Committee on the Judiciary should retain jurisdiction over all matters that it currently has," and, while he is not opposed to a Committee on Homeland Security as such, he believes that the proponents of such a committee have the burden of proof to show it is needed. Thus far, says Sensenbrenner, "that burden has not yet been satisfied," Judiciary has been to the 9/11 attacks and the new world we face since its jurisdiction cover not only the judiciary and judicial proceedings, civil and criminal, b ut espionage and counterfeiting, civil liberties, immigration and naturalization, and subversive activities affecting the internal security of th United States.1' The Committee was thus involved in the passage of the USA Patriot act and the Homeland Security Act. That latter act touches on the jurisdiction of the Judiciary Committee hi three principal areas: immigration, law enforcement agencies at DHS, and federal and state law enforcement training both at the Federal Law Enforcement Training Center and through grants to state and local law enforcement administered by the Office of Domestic Preparedness. There follows a lengthy discussion of these three principal areas of jurisdiction that are tied in with DHS and what the committee has been doing since the department's creation. Sensenbrcnner concludes by responding to arguments that DHS cannot function effectively if it must report to multiple committees: first, it now reports to several committees and is functioning effectively; second, every agency reports to at least four committees (House and Senate authorizing and appropriations committees), and despite this, most function effectively; and third, the Judiciary and the Select Committee have already shown an ability to work together effectively on projects of mutual interest. He says the Judiciary Committee should retain its jurisdiction because it has the experience and expertise, and over the years has shown the ability to apply the unified, balanced approach that these issues require. Rep. Bill Thomas, Chairman, Committee on Ways and Means - Ways and Means has jurisdiction over all functions relating to customs and customs administration which cover most of the Bureau of Customs and Border Protection and a substantial part of the Bureau of Immigration and Customs Enforcement of DHS. The jurisdiction dates back over 220 years to the creation of the Customs Service which was the first agency of the federal government Thomas says that while he supported the new department of Homeland Security, he was concerned that the move could damage the critical trade function of Customs. Consequently, he worked with Rep. Rangel and others in the Administration and the Senate to transfer customs function to the new department but at the same time maintain the statutory revenue authority with Treasury and prohibit consolidation, discontinuation or diminishing of customs functions .resources, or staffing. It is his understanding this arrangement has functioned smoothly. Unfortunately, the Bureau of Customs and Border Protection now in DHS is more intent on enforcing laws than on facilitating trade. While that befits its mission in DHS, in slights the importance of moving goods across the border in a smooth, efficient and predictable manner (even though such trade comprises 24% of our GDP). For that reason, continued oversight by Ways and Means is essential. It is also important for reasons of competency: Ways and Means has the technical expertise to ensure this is done right. While the Select Committee has been, and can continue to be, a useful coordinator of efforts and oversight of many committees, oversight of the customs function of the Bureau of Customs and Border Protection as well as the Bureau of Immigration and Customs Enforcement should remain with Ways and

Means. In conclusion, Thomas supports making the Select Committee permanent "only if we are assured that the ability of Ways and Means to carry out its customs oversight functions would not be j eopardized. The focus on the Select Committee.. ,has, quite appropriately, been on security issues and not the perhaps more mundane, but still critical trade and revenue functions. We provide that expertise and oversight." Rep. Don Young, Chairman, Committee on Transportation and Infrastructure - Young says implicit in the suggestion that the Select Committee be given exclusive oversight authority of DHS is the assumption that the standing committees aren't up to this important tasks and are either incapable or uninterested in oversight and producing effective homeland security legislation. It also presume a new committee with little subject matter expertise or institutional knowledge an produce better legislation than the sanding committees. This argument is flawed and the evidence points to the exact opposite conclusion. Only the standing committees have the expertise and institutional knowledge necessary to address terrorism and have been doing so long before 9/11. Young says he did not think the select committee was necessary to begin with, "and not much has happened since then to change my mind." The homeland security role of agencies is not a separate and distinct function from their traditional missions and can only be effectively accomplished in the context of those missions. Only members with a thorough understanding of those missions will be able to craft legislation that addresses the homeland security aspect of these agencies. Young says is the Rules Committee and Leadership decide to have a permanent Homeland Security Committee, "then so be it. It won't be the first time they've ignored my advice, but please don't ignore the expertise of the standing committees. The House and the nation need them to meet the challenge of terrorism." Young says if the House must have a permanent committee, then a select committee with oversight jurisdiction could focus the House's oversight over the Department without diminishing its [Congress'?] ability to produce effective legislation. If, on the other hand, the House creates a permanent committee with legislative jurisdiction, then it must preserve the standing committees' jurisdiction to ensure that their expertise is utilized in drafting homeland security legislation. Shared jurisdiction is not unusual and is quite manageable in the House. However, "exclusive legislative jurisdiction should not be transferred from the standing committees to a permanent homeland security committee" since this could "severely limit the House's ability to effectively address terrorism through legislation." Rep. Tom Davis, Chairman, Committee on Government Reform (appearing with Waxman, who has not prepared statement on the website) - The two members believe that, "with positive changes, the House will be organized to ensure that homeland security receives the resources and scrutiny it deserves." In raise the question of whether the House as currently organized has and will continue to aggressively and effectively oversee the new department, and express the belief that "a major congressional reorganization will only hinder oversight and legislative priorities." While others have testified that without a central committee on homeland security, Congress would drop the ball, the past year and a half have shown that "is quite simply wrong." There has been no lack of oversight and legislative activity to ensure we get homeland security right The Government Reform Committee is fulfilling its role as the primary oversight and investigation committee of the House, hoi ding numerous oversight hearings, field visits, and markup actions relating to DHS. They note that while the current system is criticized for the number of committees and subcommittees with legislative and oversight jurisdiction, "the creation of a permanent Homeland Security panel...would only exacerbate the problem of jurisdictional overlap." Overlap is inherent in th committee system, but a new committee "would only create many new and untested overlaps." Jurisdictional conflicts happen, and committee chairmen must manage these conflicts. A new committee would mean new

turf battles that would delay and even prevent positive outcomes. Instead, only minor adjustments are needed to ensure that DHSjemaiias strong and that^Con^reMjs. appropriatel oversee ihe department.. l & o c p i committees should continue to oversee iheir legacy ^en.cics iwhile Goyeniment Refonji, Government Affairs, would oversee the administration'"ttf fee 'departoent's headquarters ana department wjde_policies.a well as White: House efforts ib.lcpMdmate homeland. security 'pqlicy: [Note: Davis does not mention that the Senate does not use multiple referrals like the House.] Government Reform already has jurisdiction over these matters through agency organization authority, human capital, IT security, federal-state relations, procurement and management and efficiency of government operations. This proposal would maintain existing areas of expertise and relationships with executive branch agencies and would strengthen the parallel structure of House -Senate relations. Designating the Government Reform Committee as the lead committee on crossagency proposals when no other committee would naturally receive the primary referral, would ensure that homeland security efforts will be coordinated. Rep. Bart Gordon, Ranking Minority Member, Committee on Science - Growing a committee from scratch is an appreciably difficult task." and the select committee has done a commendable job at their core task of keeping track of the progress of the new department. However, "the core rationale of the Select Committee-oversight of the messy and tumultuous process of bringing a new department is eroding by the day" (presumably as the department becomes more established and settled]. Beyond that rationale the central argument for keeping the select committee is that it will enhance the efficiency of the workings of the House. Gordon says that claim is based on a faulty understanding of the House, its committee structure and operations. In fact, retaining the select committee would have a deleterious effects on the House. Existing committees with jurisdiction over homeland security are doing a good job of fulfilling their responsibilities. There is only one way that the select committee will enhance the efficiency of the House, and that is "if all other standing committees are stripped of their legislative and oversight jurisdiction over Homeland Security." Absent that, only new inefficiencies will be introduced if the select committee is retained as one more sharer of jurisdiction. A perfectly reasonable solution to handling authorizing legislation is to do what the senate did and that is to designate a lead committee as Government Affairs now is in the Senate. Moreover, "any legislation coming out of the House that hopes to survive the Senate process will have to take that into account." Gordon is skeptical about the need for or likelihood of a single authorization for the department. If the is such a need, the Speaker has plenty of tool to deal with the current overlapping jurisdictions-again following the Senate model of a lead committee being the most obvious. This is how we handle other major pieces of authorization. Gordon says the argument that a new select committee would streamline the oversight process on the hill is fallacious unless all other committees are completely stripped of their oversight jurisdiction. Otherwise, you will simply be inflating rather than deflating the number of committee with jurisdiction. This is not efficiency enhancement. It is not enough to argue that the agency will have to answer to multiple committees. That' s now the case, for instance, on energy legislation (Science share jurisdiction with 8 other committees). Yet Sec. Abraham has only been to the 111 27 times since this confirmation hearing. If all jurisdiction were centered in one committee, the existing expertise and experience of other committees would be lost. Finally, the Congress is supposed to be a deliberative body, designed to examine, challenge, consider. Hamilton noted in Federalist #70 that "promptitude of decision os oftener an evil than a benefit. The differences of opinion, and the jarring of parties in that department of the government, though they may sometimes obstruct salutary plans, yet often promote deliberation and circumspection, and serve to check excesses in the majority," Gordon concludes from this that it is against the nature of the House and the intent of how it should conduct

business that it pursue "efficiency" as an overriding goal in how it organizes its business. Clear lines of legislative jurisdiction among th standing committees and clear guidance from the Speaker will be more than adequate efficiency when it comes to moving legislation. And, when it comes to oversight, "a little obscurity is a good thing to create a sense of competition among the committees in examining the working of the Department-challenging the claims that come up to us and in asking questions. More oversight is better than less oversight, and you purchase that through the 'inefficiency' of multiple committees having a stake in the department's operation." Rep. Charles R. Rangel, Ranking Minority Member, Committee on Ways and Means — The Select Committee played a valuable role in the implementation of the Homeland Security Act of 2002, monitoring the activities of the DHS and providing a meaningful congressional forum for discussion of our homeland security activities, problems and concerns. Rangel believes that the Select Committee could play a continuing role "in coordinating the oversight and authorization activities of the various House committees that retain primary jurisdiction over elements of DHS," However, he thinks that Ways and Means continues to have an important role in directly overseeing the customs activities of DHS, and in particular the Customs and Border Protection Division. The rest of his testimony reflects that of Chairman Thomas (above) in this regard. He concludes by repeating that the select committee "could have a role to play" in coordinating the activities of the standing committees and in providing technical support on a bipartisan basis. Continued oversight of DHS priorities and decisions "will undoubtedly create balanced good government analyses that will benefit all members of Congress." Reps. Michael G. Oxley and Barney Frank, Chairman and Ranking Minority member, Committee on Financial Services (could not attend but submitted a joint statement) - Their statement will not address whether the select committee should be made a permanent committee, but rather will lay out the important work done by the Committee on Financial Services in the area of homeland security. Their summary of activities runs seven pages single-spaced, plus a 5-page letter from the last Congress to Richard Armey, chairman of the predecessor select committee.