[Congressional Record Volume 151, Number 15 (Monday, February 14, 2005)]
[Senate]
[Pages S1314-S1332]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SOCIAL SECURITY
Mr. NELSON of Florida. Mr. President, it absolutely baffles me, this
discussion going on about Social Security of which the President has
laid out by sounding the alarm bell that something needs to be done,
and yet the President has not come forth with a plan to address the
fact that in 37 years, in the year 2042, Social Security will not be
able to pay the full benefits, rather, 37 years in the future, would be
able to only pay 73 cents on the dollar of Social Security benefits.
Where is the President's plan? The President has laid out that he
wants to privatize Social Security with private accounts. Where is the
President's plan? Why is there not a message from the White House to
the Congress? I can suggest a reason as to why there is no plan:
because basically the privatization plan does nothing for the solvency
of Social Security when it needs it in 37 years and, instead, does the
opposite by whacking benefits and increasing the national debt
considerably, whether you look at a 10-year or a 75-year period,
whatever one is calculating.
This Senator is not going to whack or cut Social Security benefits,
nor is this Senator going to go with a plan that not only cuts benefits
but also adds trillions of dollars to the national debt when we are
running at a deficit situation where in excess of $400 billion a year
is spending in the red. And how do we get it? We go and borrow it. By
the way, guess where we borrow it from. Mostly from banks in Japan and
China. That doesn't sound too good from a defense posture of the
country. This Senator is simply not going to support that. I will
work with the President on the question of the solvency when it needs
it, and we know it needs it in 37 years. But where is the President's
plan? Unfortunately, I read in the morning paper that the President has
decided that he is not going to send a plan. How can the President say,
I have a plan, we have to do something about the solvency of Social
Security, and not offer a plan?
What we need is a little common sense. What is happening is there is
so much resistance to this idea of privatization of Social Security
that the White House is having a second thought about whether they
should come forth with this plan, and that is why they are waiting to
reveal it. If there is a good faith attempt to do something about the
long-term solvency of Social Security, this Senator will definitely
cooperate.
It was only because a Republican President, Ronald Reagan, and a
Democratic congressional leader, Speaker Tip O'Neill, came together and
said, we are going to solve the problem in 1982, we are going to solve
the problem in a bipartisan fashion, and we are not going to play
``gotcha'' politics, and it is going to be a substantive solution--that
was one of the finest moments of the Congress, coming together in
bipartisanship to solve a major, thorny, highly risky kind of problem.
The Congress and the executive came together and did that. But that was
in an environment and attitude and atmosphere of genuine bipartisanship
instead of this scoring of partisan points that seems to be done today.
I recommend that the White House come forth with its plan and do so
in a bipartisan fashion, and then we can get the job done.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Maine.
Ms. COLLINS. I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. DURBIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. DURBIN. Mr. President, I ask unanimous consent that I be allowed
to speak as in morning business and that the time not be deducted from
the debate time on Mr. Chertoff's nomination.
The ACTING PRESIDENT pro tempore. Is there objection?
Without objection, it is so ordered.
social security
Mr. DURBIN. Mr. President, President Bush and many of his supporters
in Congress are trying to convince the American people about the so-
called Social Security privatization plan. They are arguing that there
is going to be a bargain by borrowing $2 trillion now instead of paying
over $10 trillion later in the shortfall on Social Security. Once you
learn the reality of the President's Social Security bargain, you
understand why Americans of all ages are unwilling to buy into this
Social Security privatization scheme.
The $2 trillion it would cost to transition to a privatized Social
Security system would do absolutely nothing to solve Social Security's
long-term funding challenge. The argument on the other side was being
made yesterday by
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the chairman of the Republican conference, Senator Santorum of
Pennsylvania. He was on a television show on which I also appeared. He
was confronted with the cost of the transition for privatizing Social
Security. He said:
I disagree with that. I mean, you remember the old Fram Oil
Filter commercial--``pay me now or pay me later.'' And if we
don't do something now to put a down payment for young people
so they have an opportunity to have a hope for something
better than the system now will provide them, we are looking
at huge tax increases down the line, big benefit cuts down
the line, and huge deficits.
As you look at the actual costs involved with the transition under
privatization, you understand why this is not the bargain that has been
described. The President wants to take $2 trillion out of the Social
Security trust fund. He does this by saying we are going to let people
invest in their own private accounts, as he calls them, with money out
of the Social Security trust fund. Unfortunately, he has made no
suggestion whatsoever on how we are going to pay back the amount of
money being taken out of the Social Security trust fund. In fact, this
taking money out of the Social Security trust fund is not going to
strengthen it; it is going to weaken it.
Look at the President's proposal and what it means--the Social
Security shortfall, the cost of other administration policies over the
next 75 years. Presently, there are key dates for Social Security;
i.e., the date when benefits paid out exceed tax revenues coming in.
Under current law, it is 2018. Now we have a buildup, a surplus in
Social Security, so it will continue to pay out.
Under the President's proposal, benefits would exceed tax revenues in
2012. Benefits exceed all revenues in 2028 under current law and, under
the President's proposal, in 2020. The year when the trust fund is
exhausted is 2041 by the current law. Under the President's
privatization proposal, it is 2031.
What the President has proposed is no way to strengthen Social
Security; it weakens it. This argument by Senator Santorum that we
either incur this debt today of $2 trillion or face $10 trillion in the
future ignores the obvious: that we would incur the debt today of $2
trillion and the debt of $10 trillion in the future.
The President presents his idea to privatize Social Security as if it
is a solution to the long-term funding challenge. As I have shown with
the chart, it is not. Based on the few details we have seen about the
President's privatization, adding private accounts would accelerate the
date in which benefit payouts exceed tax revenues. This surplus that we
will continue to have until 2018 would disappear by 2012 under the
President's proposal.
So why are we doing this? People have said: You Democrats are
criticizing a lot; where is your plan? If we are going to start with
the plan, we ought to start with some basic agreement, and it ought to
be this: Whatever you put on the table should make Social Security
stronger, not weaker. It should not have a dramatic cut in the benefit
payments being made by Social Security. Whatever you put on the table
should not incur a debt of many trillions of dollars for future
generations. Sadly, the President's proposal fails on every single one
of those suggestions. It does not strengthen Social Security. It cuts
benefits dramatically--up to 40 percent--according to a Boston College
survey that came out last week, and it puts $2 trillion more debt on
younger people.
So the idea of being able to invest a little bit more of your money
in something that may--if your investments are wise--mean more return
doesn't hold out much hope for a younger generation that sees the debt
of America being driven up dramatically by the President's proposals.
In exchange for making the Social Security trust fund financing
worse, the President wants to borrow $2 trillion. This sea of red ink
shown on this chart is the story of the Bush economic policy. When the
President came to office, we were actually generating a surplus in the
Treasury. And a surplus in our budget meant we weren't borrowing as
much from Social Security; we were making it stronger.
So the plan to strengthen Social Security was there when the
President arrived, but the President said: I have a better idea. Let's
stop doing things the way we did in the past and let's give tax cuts
primarily to the wealthiest people in America. That will really pay
off.
Look what it paid off in--the biggest deficit in the history of the
U.S. At a time when many of us warned the administration you cannot
really look into the future and say with any certainty what America
will face, be careful about cutting taxes, the administration said:
Step aside, we have a majority and we are going to pass it. If you
don't like it, just step aside.
So a lot of us watched as these tax cuts were enacted. Look at the
deficit projected from the tax cuts. Now the President wants to make it
worse. The President is proposing adding to this national debt by
privatizing Social Security and not paying for it. The President is
suggesting adding even more debt to future generations and doing so by
making the tax cuts permanent.
Now, people like tax cuts. That is appealing. Every politician would
like to get up before every audience and say I am going to cut your
taxes and get a little round of applause. Then you look at it and ask,
is that smart to do? The first obvious question is: Under President
Bush's tax cuts, who wins and who loses?
I can tell you what the numbers show. Of the tax cuts that will take
effect this year, 90 percent will go to people making over $200,000 a
year. Over 50 percent of the new tax cuts will go to people with
incomes of more than a million dollars a year. Half of the tax cuts
that will take effect this year will go to people making over a million
dollars a year.
At a time when the budget cannot find enough money for health care,
particularly for the elderly in nursing homes and for children in poor
families with mothers working two or three low-wage jobs, this
President want to make his tax cuts of hundreds of millions of dollars
to those making over a million dollars a year permanent. At a time when
we are closing down Amtrak, when this administration is not properly
funding veterans health care, they want to make tax cuts to people
making over a million dollars a permanent.
Well, it is a program that hasn't worked to this point. Over the last
4 years, we have seen our deficits get dramatically worse. The
President talks about the Social Security funding shortfall over an
eternity. It will be interesting to take a look at what, first, the
cost of privatizing Social Security will be. The amount provided in the
President's budget for Social Security is zero. That is why the
President's proposal has exactly that much credibility--zero.
If the President really believed in his privatization plan, he would
put it in the budget. Why didn't he? Because it costs so much money;
$754 billion is the lowest estimate for the first 10 years of the
President's plan.
Look at the next 10; it is $4.5 trillion. We talk about trillions of
dollars here in Washington. The President won't talk about this at all.
He will not include the cost of his privatization plan in the budget
because it costs too much. He cannot afford to pay it.
Take a look at, over the long haul, what it means. If he makes his
tax cuts permanent through 2078--a long period of time--this is how
much money will be taken out of the Treasury, $2 trillion. Then look at
the Social Security shortfall. It is one-third of that amount. If the
President decided, here is a radical idea, we are not going to give tax
cuts to people who make over a million dollars a year--you seem to be
doing OK in America; this country has treated you pretty nicely, so we
are not going to give you a tax cut--if we just said that and put the
money in Social Security, it would be strong.
Maybe there are other things we could do to make it even stronger.
But this administration is bound and determined to give these tax cuts
to the wealthiest people in America.
I think when you take a look at this, you also have to remember
something else. Who owns America's debt? Who holds America's mortgage?
Who are the creditors we have to worry about? It turns out, it is
foreign countries, primarily China and Japan. The U.S. economy is now
increasingly dependent on a handful of foreign central banks for our
economic stability and security. It is not only shortsighted to
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come up with privatization plans that you do not pay for, tax cuts for
wealthy people that you don't pay for; it is shortsighted to be even
more dependent on foreign countries that hold our debt.
Listen to this. Last October the chief currency analyst at MG
Financial Group, one of the oldest companies in the retail foreign
exchange industry, said as follows:
The stability of the bonds market is at the mercy of Asian
purchases of U.S. treasuries.
Let me translate. What if the mortgage on your home was in the hands
of someone who on any day could call you and say ``pay it all off''? It
is not like 15, 20, or 30-year mortgages but a mortgage they could call
in tomorrow. What if they started worrying about your financial
circumstances? What if they worried that you would not have a paycheck
next week or somebody was sick in your home? Will they start worrying
about whether you are going to make the payments? Getting nervous, they
could call in that debt. It can happen. It can happen in this world. In
the world situation, when they lose confidence, as this gentleman is
suggesting, in the U.S. economy and the U.S. budget, we become even
more vulnerable, and foreign countries such as China and Japan can say,
all right, we will not call in your mortgage, we will just raise the
interest rate. What will we do then? There is no place to turn. They
can say, incidentally, we are not that confident about your dollar. We
are going to start saying you have to convert your dollar into euro
dollars or some other currency.
All of these factors complicate our lives dramatically. The more we
are in debt, the more we are dependent on foreign countries. These
countries, coincidentally, export to the United States dramatic amounts
of goods and services that cost us valuable jobs in America. It is no
coincidence; Japan, China, Korea, other Asian countries that hold our
debt are also holding America's workers by the throat. They understand
they have us.
So what does this conservative administration, this Bush
administration propose? More debt, more dependence, more power to our
creditors, such as China and Japan. How can that make America any
stronger? In fact, it makes us weaker.
I sometimes wonder when I look at the long-term view whether people
in the White House are stepping back to look at the reality of the
world we live in; that here we are with a supplemental appropriation of
$21 billion to fight the war in Iraq--and I will vote for that and
every penny for which this administration asks. If it were my son or
daughter, I would want them to have everything they need to be safe in
this war. But at the same time, we are so dependent on foreign oil,
buying it at record levels because we do not have a basic policy of
energy conservation in America.
A couple weeks ago, my wife and I bought a new hybrid car, a Ford. We
are driving it around, getting used to it, hoping it works as promised.
Why is it that we are not pushing for more fuel-efficient vehicles so
there is less dependence on foreign oil? At the same time we are
appropriating money to fight this war, we are sending money hand over
fist to these oil-producing countries that, through the backdoor, are
sending money to support terrorism. Does that make any sense? Why would
we not have an energy policy that also is about the security of
America, which means an energy policy that reduces our dependence on
foreign oil. Why don't we have a budgetary policy that reduces our
dependence on foreign lenders, such as China and Japan?
Exactly the opposite is coming out of this administration. It is
totally upside down. It lacks common sense.
Holdings of Treasury bonds by Japan were at $722 billion last
October. China's rose to $191 billion. Steven Roach, the chief
economist at Morgan Stanley, said:
If all we have funding our current account imbalance is the
good graces of foreign central banks, we are increasingly on
thin ice.
So this bargain that the administration has proposed in privatizing
Social Security drives us deeper in debt, which the President will not
pay for, a debt for future generations and a debt held by foreign
governments, and we become their debtors and at their mercy.
We have to understand this. The President's proposal makes Social
Security's long-term finances worse. It worsens our short- and long-
term budget outlook by trillions of dollars. It leaves our
grandchildren to pay higher taxes on our national debt. And it makes us
more dependent on foreign countries, such as Japan and China. That is
not a good proposal for America.
Let me tell you what I think we should do. I have lived through this
before. As a new Member of the House of Representatives back in the
1980s, I no sooner arrived in town and they said Social Security is in
trouble; we need to do something, and we need to do it now. I thought
to myself: I got here just in time.
So President Ronald Reagan, the leading Republican, turned to Speaker
of the House Tip O'Neill, the leading Democrat, and said: Mr. Speaker,
let's do this together. Let's create an honest bipartisan commission
and let them come back with some proposals.
Alan Greenspan, known as a Republican but respected as an economist,
came forward and headed up the Commission. They came up with a list.
They said here is what you have to do to Social Security to keep it
strong for a long time. Take your pick, but you have to do some of
these things and do them now, in the early 1980s. It was a big debate.
The debate went on for a long time.
Were we going to increase the age by which people could retire on
Social Security? Would we increase the payroll tax? Would we cut
benefits? None of it was really that appealing. The idea of Social
Security missing a payment was totally unacceptable. So we came
together, Democrats and Republicans. We agreed. We passed the bill.
President Reagan signed the bill.
What happened as a result of our action? We bought 58 or 59 years of
strength and solvency in Social Security. And that is exactly what we
should do now. Set aside this privatization plan. It is headed nowhere.
The American people are not buying it. Instead, let's do this on a
bipartisan basis. Let the President propose a real, honest bipartisan
commission and let them come up with honest, commonsense ways, when
played out over 40, 50 years, that will make Social Security stronger.
We rose to that challenge--I was here when it happened--and we can do
it again. But we need to detoxify this debate, pull the ideologues,
people who have these extreme views about getting rid of Social
Security, get them out of the picture. We do not need them in the room.
Social Security needs to be here for future generations. Both parties
are usually committed to that goal, and they should be committed to it
today.
I suggest the President's privatization plan is a nonstarter. It is a
plan that does not have the appeal that he thought it would. I am sure
there were some excited about it initially. It just is not getting off
the ground.
Republican leaders, such as the Speaker of the House, said last week
in a front page interview in the Chicago Tribune that you cannot force
an idea such as this down the throats of the American people. I think
he is right. I think he has recognized the reality. And I think he is
willing, on a bipartisan basis, to look at alternatives. That is the
way we should all approach it--a bipartisan approach that truly
strengthens and does not weaken Social Security, a bipartisan approach
that does not make wholesale cuts in benefits and add dramatically to
America's debt. That is the way we should approach this issue.
Mr. President, I yield the floor and suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. LEVIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Cornyn). Without objection, it is so
ordered.
Mr. LEVIN. Mr. President, let me begin by saying I intend to vote to
confirm Judge Chertoff to be Secretary of the Department of Homeland
Security based on what I know of him. What deeply troubles me is that
information relevant to his confirmation has been arbitrarily denied to
the Senate by the Justice Department.
[[Page S1317]]
In the course of preparing for the Homeland Security and Governmental
Affairs Committee hearing on Judge Chertoff's nomination, a document
came to my attention bearing on Judge Chertoff's responsibilities when
he headed the Justice Department's Criminal Division. The document was
recently released by the FBI in response to a Freedom of Information
Act, or FOIA, request by the American Civil Liberties Union. It is
dated May 10, 2004. It indicates that FBI personnel working at the
Guantanamo detention facility had major concerns about interrogation
techniques used on detainees from Afghanistan by Department of Defense
personnel, which techniques ``differed drastically'' from traditional
methods employed by FBI personnel, DOD and FBI techniques differed so
drastically that FBI agents decided they had to ``step out of the
picture'' so as not to participate in DOD-led interrogations.
Department of Defense interrogation techniques have been the focus of
a number of investigations into detainee abuse allegations, including
abuses graphically depicted in the photographs from Abu Ghraib prison.
MG George Fay, who investigated detainee abuses by military
intelligence personnel at Abu Ghraib, found that interrogators at that
prison were improperly using harsh interrogation techniques that came
from Guantanamo, including stress positions, isolation, nudity, and the
use of dogs to ``fear up'' detainees.
The report of the panel chaired by former Secretary of Defense James
Schlesinger found that these ``more aggressive'' interrogation
techniques developed at Guantanamo ``migrated'' to Afghanistan and Iraq
and contributed to widespread abuses.
The FBI document about which I am talking today makes clear that
concerns about DOD's interrogation techniques in use at Guantanamo, and
so strenuously objected to by FBI agents, started at least as early as
the fall of 2002, before the abuses occurred at Abu Ghraib and
elsewhere.
The document at issue indicates that FBI agents communicated
regularly with Justice Department officials, including senior officials
in the Criminal Division headed by Mr. Chertoff before he was appointed
to the Federal bench. The FBI agents' communications expressed their
deep concerns about techniques employed by DOD personnel.
Let me read from the document at issue that we will be referring to
this afternoon which is displayed on the chart beside me. It is from an
FBI e-mail to T.J. Harrington from an official whose name has been
redacted. It reads in part as follows:
I went to GTMO with blank--
That is the first of many redacted items on this document.
I went to GTMO with blank early on. We discussed the
effectiveness of blank with the supervisory special agent.
We, BAU--
Which is the Behavior Analysis Unit--
and ITOS1 the International Terrorism Operations Section 1--
had also met with Generals Dunlevey and Miller explaining our
position, law enforcement techniques versus the Department of
Defense. Both agreed the Bureau has their way of doing
business and the DoD has their marching orders from the Sec
Def.
Although the two techniques differ drastically, both
generals believed that they had a job to accomplish . . . In
my weekly meetings with the DOJ, we often discussed BLANK
techniques and how they were not effective or producing Intel
that was reliable.
Then there is a series of blanks, which appear to be the individuals'
names which have been redacted or withheld from release, with the
abbreviation ``SES'' after the names that were blotted out, indicating
that the individuals were members of the Senior Executive Service. The
document then says, and these are the critical words, that all of those
SES employees were from the Department of Justice's Criminal Division
and that they ``attended meetings with the FBI.'' It goes on to say,
``all agreed blank were going to be an issue in the military commission
cases. I know blank brought this to the attention of blank.''
Now, it is those redactions, those names, and that information which
has been deleted, including the names of the senior officials in the
Criminal Division of the Department of Justice participating in
meetings with the FBI agents, which thwart the Senate in its
constitutional role of deliberating on Judge Chertoff.
Judge Chertoff was head of the Criminal Division from April of 2001
until June of 2003. It is the division that he headed whose members are
referred to here but whose names are blotted out so that we are unable
to know who they are and we are unable to talk to those members of
Judge Chertoff's Criminal Division.
On February 4, 2005, a little more than a week ago, Senator Lieberman
and I wrote to FBI Director Robert Mueller regarding this document. A
copy of that letter is displayed next to me. This is what Senator
Lieberman and I wrote:
We ask that an unredacted version of this three-page
document be provided to the Office of Senate Security where
we and staff members with appropriate clearance can review
it. Please provide an unredacted copy . . . by no later than
4 p.m. on Friday, February 4, 2005. If you will not provide a
copy of this document, please provide a legal justification
for doing so.
In a letter dated February 7, the Department of Justice, not the FBI
to whom we wrote but the Department of Justice, wrote back denying our
request. The Justice Department claimed that an unredacted copy would
not be provided to us because it contained, and it is referred to in
this letter next to me, ``information covered by the Privacy Act, . . .
as well as deliberative process material.''
The Justice Department's reasons for denying the request of Senator
Lieberman and myself are not just unfounded and unacceptable. They are
incredible. They are extreme. The Privacy Act is designed primarily to
prevent the U.S. Government from disclosing personal information about
private individuals who have not consented to that disclosure. It is
not intended to be a means of concealing the names of public officials
engaged in Government conduct funded with taxpayers' dollars.
The Department of Justice's invocation of the Privacy Act to deny the
Senate relevant information regarding a nomination before the Senate is
an abuse of the Privacy Act and a dangerous precedent. Denying Congress
documents relevant to our functions, if sustained, would effectively
end most congressional oversight because Government employees are named
in thousands of documents which Congress relies on in carrying out
responsibility.
Senator Lieberman and I have written to Attorney General Gonzalez
requesting that he reconsider the decision to withhold this
information.
When I asked Judge Chertoff about this document at his nomination
hearing on February 2, he could not recall discussions between FBI and
Department of Justice Criminal Division officials concerning Department
of Defense interrogation techniques at Guantanamo. He stated:
I don't recall having any discussion about techniques that
the Defense Department was using in Guantanamo, other than
simply the question of whether interrogations or questioning
down there was effective or not.
Judge Chertoff could not say who were the Criminal Division officials
whose names had been redacted from the document which was up here a
moment ago. Nor could he even confirm that the discussions referred to
in the document between people from his Criminal Division and the FBI
and Defense Department officials occurred during his tenure as head of
the Criminal Division.
If Judge Chertoff does not know that these discussions took place or
who in his division might have engaged in these discussions or when
they took place, does that not end the matter? If he is unable to say
that those people whose names are blotted out talked to him or anybody
in their supervisory capacity who supervised them, does that not bring
this matter to an end? Of course it does not, and it cannot.
By denying the Senate access to the names listed in the document, the
Department of Justice has prevented the Senate from finding out that
information so we might refresh Judge Chertoff's recollection about the
conversations referred to in the document, which involves senior
Criminal Division personnel that he was the head of; conversations with
the FBI and Department of Defense personnel regarding DOD interrogation
techniques at Guantanamo.
Now, if the names of the Criminal Division personnel were known to
him, which they are not--they are obviously blotted over--or if they
were known to
[[Page S1318]]
us, surely we could ask those persons if they discussed these matters
with people who are higher up in the Criminal Division, their
supervisors, including possibly with the head of the Criminal Division,
Judge Chertoff. We clearly have a right to find out their names to ask
them the same relevant questions that we could ask them if their names
were not redacted.
If we knew the names, in other words, surely it is relevant, it is
appropriate for the Senate to ask these members of Judge Chertoff's
Criminal Division, did you discuss these matters that you overheard and
were participating in with your supervisors at the Criminal Division?
Did you ever bring these to the attention of now Judge Chertoff?
If the names were not redacted, if it is appropriate for us to ask
the names on that memo those questions, clearly we have a right to find
out who they were so we can ask those same relevant questions.
By its contorted reliance on the Privacy Act, the Justice Department
is denying the Senate information relevant to our consideration of
whether to give our consent to this nominee. Our constitutional mandate
is clear. The Justice Department's decision to cover up this
information is deeply disturbing. Not only is the Senate being
thwarted, the American public is being denied relevant information. If
this misuse of the Privacy Act is not resisted, congressional oversight
of our governmental activities will be controlled by the executive
branch that we are supposed to oversee. We cannot allow the Department
of Justice's action to stand unchallenged.
The Congress obtains thousands of documents from the executive branch
as part of our oversight responsibility, and we must. We had an
investigation in the Permanent Subcommittee on Investigations of the
operation of the Comptroller of the Currency. Thousands of documents
were obtained with names of Government employees and we reached a
conclusion that one of those employees had worked so closely with one
of the banks that was being investigated that, in effect, he had
abdicated his responsibility as a Government employee to oversee that
bank he later took a job with.
The same thing has been true with the Boeing investigation. It is
true with hundreds of investigations. We must be able to obtain
Government documents, and we do obtain Government documents, all the
time in Congress as part of our oversight responsibility. If the names
of Government employees who are paid with taxpayer dollars are
redacted, are not available to Congress, because allowing their names
to be in those documents violates their privacy, this will wipe out the
oversight responsibility of the Congress.
Senator Lieberman and I have sought this particular document and we
have done so because the document is relevant to this confirmation
process. The refusal of the administration to produce this unredacted
document thwarts our constitutional responsibility. There seems to be
something ingrained in the administration to thwart congressional
oversight, particularly on the issue of detainee abuse. The history of
this detainee abuse is important as a backdrop to what my point is this
afternoon.
A specialist by the name of Joseph Darby courageously came forward in
the Defense Department in January of 2004 with allegations and photos
of terrible abuses at Abu Ghraib. The administration did not inform
Congress of the existence, the nature and the scope of these
allegations and photos until April 28, almost 5 months later in 2004.
They did come forward and notify Congress because that is the day the
pictures were aired on a major network news program. The Congress only
learned of the report of Major General Taguba who investigated the
allegations of abuse by military police at Abu Ghraib between January
31 and March 12, 2004, after his report was leaked to the press in
early May of 2004. We did not learn of White House Counsel Gonzales's
memo of January 25, 2002, advising the President that the protections
of the Geneva Conventions were ``obsolete'' and ``quaint,'' to use his
words, until that memo was obtained by the press in mid-May 2004.
We did not learn of the August 1, 2002, memo by the Office of Legal
Counsel on his novel interpretation of the anti-torture statute, the
so-called torture memo, until it was obtained by the press in early
June of 2004. That was the memo that defined prohibited torture
extremely narrowly; for example, that physical pain would have to be
equivalent to organ failure, impairment of bodily functions, or death
to count as torture under the anti-torture statute.
We now know of a second Office of Legal Counsel opinion from around
the same time as the August 1, 2002, torture memo, which analyzes the
legality of specific interrogation techniques. That memo has still not
been made available to Congress.
The Armed Services Committee of the Senate made a standing request on
May 13, 2004, in a letter from Chairman Warner to Secretary Rumsfeld,
for ``all relevant documentation'' regarding the allegations of
prisoner abuse and for ``all legal reviews and related documentation
concerning approval of interrogation techniques.''
The response to date can only be considered slow and partial.
The Defense Department has engaged in considerable foot-dragging in
getting to Congress the findings of its investigations into key aspects
of the detainee abuse issue. Although the Department of Defense at one
point estimated that the report of General Formica regarding abuse
allegations against Special Operations Forces in Iraq would be ready
last August, and this report was briefed to the Secretary of Defense
over a month ago, only late last Friday afternoon did the Armed
Services Committee receive this report. We have yet to receive the
report of Navy Inspector General Vice Admiral Church in the Department
of Defense interrogation techniques in Guantanamo, Afghanistan, Iraq,
and elsewhere. The Defense Department initially estimated that this
report would be ready 6 months ago. The Department's slow-rolling has
delayed additional public hearings on the detainee abuse issue.
It is astonishing to me that only after becoming aware of the
allegations of detainee abuse at Guantanamo contained in the documents
produced by the FBI under this ACLU FOIA request did the Department of
Defense direct that an investigation into those allegations be
initiated.
The FBI documents that have been released under the FOIA request,
although redacted, nonetheless describe the FBI's battles during 2002
and 2003 with Department of Defense commanders at Guantanamo regarding
the use by the Department of Defense of ``aggressive'' and ``coercive''
interrogation techniques. In response to an FBI internal inquiry,
allegations of detainee mistreatment at Guantanamo surfaced during the
summer of 2004. This led the Bureau's Inspection Division in July of
2004 to contact all employees who served at Guantanamo after September
11, 2001, and request any information regarding detainee mistreatment
at that facility.
FBI employees' responses to the FBI Inspection Division's request
relating to Guantanamo indicate that FBI personnel repeatedly raised
concerns regarding Department of Defense interrogation techniques,
including with Department of Defense commanders at Guantanamo from late
2002 into mid-2003. One e-mail, dated May 10, 2004, described how FBI
officials raised their concerns with General Dunlavey, who was in
charge of interrogation operations until October 2002, and with General
Miller, who was commander of the facility from October 2002 until March
of 2004. In these discussions the FBI officials were told:
DOD has their marching orders from the Sec Def [Secretary
of Defense].
The agent adds:
Although the two [agencies'] techniques differed
drastically, both Generals believed they had a job to
accomplish.
Another e-mail, dated December 9, 2002, states that it has two
attachments: a description of an interrogation matter raised with the
commanding general at Guantanamo, presumably General Miller, and
second:
. . . an outline of the coercive techniques in the military's
interviewing tool kit.
The FBI agent concludes by saying that he will bring back to
headquarters a copy of the military's interview plan for an unnamed
detainee, saying, ``You won't believe it!''
[[Page S1319]]
The responses to the FBI's internal inquiry show that FBI officials
had many objections to DOD interrogation techniques. In his
confirmation hearing, Judge Chertoff suggested that FBI and DOD
differences regarding interrogation techniques at Guantanamo might have
related to whether Miranda warnings were to be provided, but that was
not the case. FBI agents had official guidance not to provide to
detainees at Guantanamo Miranda warnings. The differences between the
two agencies' methods were different than that, and they went much
deeper.
Other FBI documents produced under the FOIA request show that agents
complained about the effectiveness of DOD's methods for producing
reliable intelligence compared to the FBI's interviewing techniques.
One agent reported telling DOD officials that the intelligence the
Department of Defense was producing was ``nothing more than what FBI
got using simple investigative techniques.'' Another FBI official
complained that when an agent would begin to develop a rapport with the
detainee, ``the military would step in and the detainee would stop
being cooperative.''
Another major FBI concern was that Department of Defense
interrogators were impersonating FBI agents. In one e-mail dated
December 5, 2003, an FBI agent complained that DOD interrogators had
impersonated FBI agents in attempting to produce intelligence. The FBI
agents expressed a concern that should this detainee's story ever be
made public, the FBI would be left ``holding the bag'' because it would
appear that ``these torture techniques were done [by] `FBI'
interrogators.''
A couple of the FBI e-mails challenged Defense Department officials'
public statements in 2004 regarding Department of Defense methods of
interrogation used at Guantanamo. For example, one e-mail dated May 13,
2004, reacts to statements of MG Geoffrey Miller, who at that time had
moved from commanding the Guantanamo facility to Iraq, where he was in
charge of all detention facilities, including Abu Ghraib. This is what
that e-mail said:
Yesterday . . . we were surprised to read an article in
Stars and Stripes in which General Miller is quoted as saying
that he believes in the rapport-building approach. This is
not what he was saying at Gitmo when I was there--redacted--
and I did cartwheels. The battles fought in Gitmo while
General Miller was there are on the record.
Constant battles between the FBI, part of the Department of Justice,
and the Department of Defense officials at GTMO.
The FBI agents' responses to the Inspection Division's request
regarding Guantanamo refer to other documents reflecting the FBI
agents' serious concerns over Department of Defense interrogation
techniques. Among the documents cited are a lengthy ``electronic
communication'' drafted by the FBI's Behavioral Analysis Unit. That
communication is dated May 30, 2003. It contrasts the Bureau's
interrogation methodology with that of the Department of Defense.
Another document is an electronic communication by the FBI's Military
Liaison and Detention Unit in November of 2003:
. . . as to FBI's disapproval--redacted--regardless of
whether they [those are the Department of Defense
interrogation techniques] were approved by the Deputy
Secretary of Defense.
Another document is a ``must read'' electronic communication from the
FBI's Miami division.
A December 2003 e-mail refers to a request by the Military Liaison
and Detention Unit that:
. . . information be documented to protect the FBI [because
of their] longstanding and documented position against use of
some of DOD's interrogation practices. . . .
Either these documents remain unreleased to the public or, if
released, their content has been almost entirely redacted.
Reflecting the position of the documents I referred to is a May 19,
2004, memo to all divisions from FBI General Counsel Valerie Caproni.
This memo states that:
Existing FBI policy . . . has consistently provided that
FBI personnel may not obtain statements during interrogations
by the use of force, threats, physical abuse, threats of such
abuse or severe physical conditions,
and that:
no interrogation of detainees, regardless of status, shall be
conducted using methods which could be interpreted as
inherently coercive, such as physical abuse or the threat of
such abuse to the person being interrogated or to any third
party, or imposing severe physical conditions.
This memo from the FBI General Counsel continues as follows: that FBI
personnel who participate in interrogations with non-FBI personnel
shall comply with FBI policy at all times, and specifically:
FBI personnel shall not participate in any treatment or use
any interrogation technique that is in violation of these
guidelines regardless of whether the co-interrogator is in
compliance with his or her own guidelines.
Accordingly, the guidance to FBI personnel was to remove themselves
from the situation if the interrogation is being conducted in a manner
not compliant with FBI policy.
In response to the FBI Inspection Division's request, several FBI
agents reported observing ``aggressive treatment'' of detainees at
Guantanamo. One agent reports witnessing on a couple of occasions
detainees ``chained hand and foot in a fetal position on the floor,
with no chair, food, or water.''
This FBI agent describes how oftentimes these detainees had urinated
or defecated on themselves, having been left in this position for 18 or
24 hours or more. One detainee subjected to these techniques had
apparently been ``literally pulling his own hair out throughout the
night.'' The agent speculated that these techniques were being used by
``the military, government contract employees'' and a third group whose
identity has been redacted.
The FBI documents indicate that Bureau officials intended to notify
the Defense Department regarding the FBI Inspection Division's findings
regarding Guantanamo abuse allegations. A summary of that internal
inquiry states that 26 of the agents who responded to the Inspection
Division's request said they had observed some form of detainee
mistreatment by non-FBI personnel.
After reviewing these statements, FBI General Counsel Valerie Caproni
deemed 17 of these incidents to involve ``appropriate DOD-approved
interrogation techniques.'' The remaining nine were determined to
require followup interviews. The summary states that the FBI Inspection
Division was to prepare a report based on those followup interviews, to
be forwarded to General Counsel Caproni, who would, in turn, notify the
Defense Department.
It is not clear whether this report was ever prepared or provided to
the Defense Department. If it does exist, the Defense Department has
not provided it to the Senate Armed Services Committee.
In addition, other FBI documents released under the FOIA request
include a partially redacted letter dated July 14, 2004, from Thomas
Harrington, who served as the head of the FBI team at Guantanamo, to MG
Donald Ryder, who is commanding general of the Army Criminal
Investigation Command, detailing highly aggressive interrogation
techniques at Guantanamo. The incidents witnessed by FBI agents as
early as the fall of 2002 include what appeared to be a female
interrogator squeezing a male detainee's genitals and bending back his
thumbs and the use of a dog to intimidate a detainee. Details of a
third incident were redacted from the letter, but according to the
press, the letter describes a prisoner gagged with duct tape covering
much of his head to prevent him from reciting from the Koran. Another
incident involved a detainee suffering from extreme mental trauma after
being kept in an isolation cell flooded with lights for 3 months.
The Harrington letter indicates that these incidents and other FBI
concerns were discussed with two officials in the Department of
Defense's General Counsel's Office in mid-2003. Despite the Armed
Services Committee's standing request for ``all relevant documentation
relating to the prisoner abuse issue,'' the committee was not told by
the Defense Department of receiving the Harrington letter last July,
nor have we been informed regarding what actions the Department took in
response to these allegations.
What the documents produced under the FOIA request indicate is that
the administration's policies on the meaning of torture and the
legality of specific interrogation techniques had opened the door to
abuses. The document that Senator Lieberman and I
[[Page S1320]]
have sought in the course of Judge Chertoff's nomination proceedings
shows clearly that the FBI was raising its concerns about DOD
interrogation techniques as early as the fall of 2002.
That would be a few months after the Justice Department's Office of
Legal Counsel issued its August 1, 2002, memo interpreting the Federal
antitorture statutes.
The December 1, 2002, memo by Secretary Rumsfeld put the stamp of
approval on interrogation techniques that went beyond those that were
in existing Army doctrine, and these were for use in Guantanamo. These
included stress positions, isolation, deprivation of light, auditory
stimuli, 20-hour interrogation, nudity, and exploiting detainees'
phobias such as the fear of dogs.
One month later, Secretary Rumsfeld rescinded his approval of those
techniques. He ultimately approved, in April of 2003, a narrower set of
interrogation techniques. Regardless of which memo was in effect at the
time of the FBI memo, Congress needs to find out whether the alleged
mistreatment reflected the more aggressive DOD-approved interrogation
techniques temporarily authorized for Guantanamo in December of 2002,
or went beyond even those.
The concerns that the FBI expressed to the Defense Department were
classified. But reports of abusive practices in Guantanamo were leaked
to the press. The New York Times article from November of 2004 reported
on a confidential International Committee of the Red Cross report which
found that the highly refined system for the detention and
interrogation of detainees at Guantanamo was ``tantamount to torture.''
The article also states that the report, based on an ICRC visit to the
facility the previous June, notes incidents of detainees being
subjected to loud, persistent music, prolonged cold, and ``some
beatings.''
The New York Times article dated January 1, 2005, cited anonymous
interviews with military officials who participated in interrogations
at Guantanamo, confirming the use of the same kinds of aggressive
interrogation techniques which the FBI agents reported. These
techniques reportedly included shackling inmates for hours, leaving
them to soil themselves, or subjecting them to loud music. Again, as
the reports of General Fay and the Schlesinger panel concluded, it was
these aggressive techniques in use at Guantanamo which migrated, in
their words, to Afghanistan and Iraq that contributed to the occurrence
of detainee abuse there.
It was not just the FBI that objected to those techniques. We
recently learned of a June 2004 memo written by Defense Intelligence
Agency Director VADM Lowell Jacoby to Under Secretary of Defense for
Intelligence Stephen Cambone advising him that DIA interrogators had
been threatened by U.S. special operations forces, instructed not to
leave the compound, and ordered not to talk to anyone in the United
States when the DIA personnel observed and sought to document and
report that they had observed those personnel physically abusing
detainees during an interrogation in Iraq.
The Jacoby memorandum is another example of how this Congress has not
been kept apprised and is only finding out after the fact about the
depth and breadth of the allegations of detainee abuse.
That is totally unacceptable and should energize the Congress. But
what should doubly energize all of us is when the Department of Justice
denies us information relevant to our constitutional responsibilities,
particularly after there has been a specific request for that
information.
My purpose in coming to the floor this afternoon is to alert the
Senate to this direct challenge to our ability not only to perform our
confirmation responsibilities but our ability to perform our oversight
function so essential to the system of checks and balances that serve
as a brake on the powers of the executive branch regardless of who is
in control of the executive branch.
It is not the first time the administration has asserted broad new
powers to withhold information from Congress. A broad claim of
executive power was made in the letter to Senator Warner and me from
the deputy general counsel of the Department of Defense on June 15,
2004. The letter referred to ``the President's constitutional authority
to withhold information the disclosure of which could impair foreign
relations, [or] national security, [or] the deliberative process of the
Executive.''
Presidents traditionally claim the constitutional authority to assert
executive privilege when personally determining that it is necessary to
do so to protect their ability to receive candid advice from senior
officials in the executive branch.
But that is not the issue here.
The privilege asserted by that Department of Defense letter that
Senator Warner and I received is not limited to cases involving
Presidential deliberations and advice given to the President himself.
That letter asserts the power to make unilateral decisions to withhold
documents relating to foreign relations, national security, or
deliberations within all parts of the executive branch.
That is a breathtaking claim which must be resisted--resisted on a
bipartisan basis--by any Congress serious about the oath we have taken
to defend the Constitution.
That Defense Department letter is a bald assertion of a privilege
whereby executive branch officials can withhold anything from Congress
that those officials, in their sole discretion, determine to be
sensitive, embarrassing, or which make such officials uncomfortable.
Congress insisted on access to documents of this kind in the past
because they are essential to the conduct of our oversight functions.
The document withheld from us in the confirmation matter before us
goes beyond any previous assertion by any administration, as far as I
can determine. There has been no claim of executive privilege here. The
document itself has no bearing on any advice given to the President by
anybody.
All of us should object to the withholding of the complete May 4,
2004, FBI memo which refers to the discussions at which members of the
Justice Department's Criminal Division were present involving abuses at
Guantanamo, when Judge Chertoff was head of the Criminal Division.
The Department of Justice's use of the Privacy Act takes the efforts
to thwart congressional oversight to a new extreme. It is the latest
manifestation of the executive branch's determination to seize any
crumb of justification to prevent Congress access to executive branch
documents relevant to carrying out our constitutional responsibilities
of confirmation and oversight.
Congress should not sit idly by while the executive branch asserts
sweeping authority to frustrate Congress's exercise of our
constitutional responsibility. Broad executive branch assertions of
privileged information and distortion of the Privacy Act threaten to
reduce the Senate role in advising and consenting on senior level
appointments to an exercise of rubberstamping the administration's
nominees. The Senate should assert its constitutional power to get
information relevant to the confirmation process and to our oversight
responsibilities.
We have not carried out our constitutional oversight
responsibilities, as far as I am concerned, in the area of detainee
abuse as evidenced by the fresh revelations of abuse allegations in
Iraq, Afghanistan, Guantanamo, and elsewhere.
Those allegations did not come from our oversight activity. That
information--those allegations--came from FOIA requests and media
initiatives.
The administration has not lived up to its promise to keep Congress
informed on the issue of prisoner abuse. The administration has
effectively stifled even modest congressional efforts at oversight.
As I said at the beginning, based on the information that is
available, I will vote to confirm Judge Chertoff. I believe most or all
Members will, but all Members should stand up to the administration's
denial of a document which is relevant to his confirmation. We should
act in unison to affirm and carry out the Senate's traditional
oversight activities, regardless of which party controls this body or
the White House.
I yield the floor, reserve the balance of my time, and I note 20
minutes of that time I would like to allocate to Senator Dodd.
[[Page S1321]]
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Omaha.
Mr. COBURN. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. WYDEN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WYDEN. Mr. President, I ask unanimous consent to speak as in
morning business and that the time be taken out of the time allocated
to speak on the nomination.
The PRESIDING OFFICER. Without objection, it is so ordered.
Medicare Prescription Drug Benefit
Mr. WYDEN. Mr. President and colleagues, on Friday, the President
said he would veto any changes that would, in his words, undermine the
Medicare prescription drug benefit.
As one Democratic Senator who voted for the program and who wants to
work very much in a bipartisan way to fix this program, I would ask
this afternoon, with all due respect, that the President of the United
States reconsider his position.
The President says that making changes to the Medicare drug benefit
is going to take away benefits our seniors need. But I believe that
smart changes now are the key to preserving seniors' benefits. Wise
changes are not going to endanger the Medicare drug benefit, but, mark
my words, refusing to mend it could end it. Spiraling costs and the low
levels of participation we have seen thus far may jeopardize the very
survival of the Medicare drug benefit.
Colleagues, the reason I believe that is the combination of these
costs that continue to soar--they were originally appraised at about
$400 billion; now they are upwards of $700 billion, and there are some
estimates of $1 trillion--the combination of the escalating costs and
the paltry rate of seniors signing up, at least to date, means this
program will require a great deal of money to be spent on a relatively
small number of people. That is not a prescription for the program to
survive.
I, for one, as someone who voted for this program and who feels
passionately that it is important to get this right, hope the Senate
comes together to try to put in place the changes that the program
needs to get it back on track. I simply believe ignoring the obvious
problems I have mentioned and the threat to veto any bipartisan
solution is not a productive or responsible reaction.
Making changes to contain costs and increase participation--making
those changes on a bipartisan basis--is precisely what the Congress and
the administration ought to be spending their time doing. I, for one,
think the legislation that Senator Snowe and I have worked on for more
than 3 years is a very good place to start. But, obviously, colleagues
of both parties have other ideas.
I see my friend, the distinguished Senator from Oklahoma, in the
Chamber. He and I served in the House on the Health Committee. He has
excellent ideas with respect to ways to hold down some of the costs in
the Medicare program overall, particularly in the preventive area. I
think he is dead on target. Senator Snowe and I have what we think is a
bipartisan first step with respect to getting the prescription drug
program back on track. But certainly colleagues in this body have other
ideas.
The reason Senator Snowe and I advocate the approach we are taking is
that it essentially builds on what is going on in the private sector.
For the life of me, I cannot figure out why Medicare will not be a
smart shopper the way everybody else is in the private sector. I have
said that Medicare, as a purchaser, is pretty much like the fellow in
Price Club buying toilet paper one roll at a time. Nobody would shop
that way. It defies common sense because all across the country, if you
are interested in purchasing something, and you are already going to
purchase a certain amount, and you agree to buy more of it, then people
give you a discount. It is just economics 101. Yet Medicare has not
gotten that message.
So under the legislation that Senator Snowe and I have been pursuing,
we take a sharp-pencil, fact-based, cost-containment approach that
essentially builds on what is going on in the private sector across the
country.
In addition to the effort to use those private sector cost-
containment techniques, we would provide that drug prices be monitored
to make sure artificial price increases do not negate the benefit to
older people. We would make sure that seniors have the information
about real savings so they can choose the plan that best makes sense
for them.
It seems to me, by refusing the opportunity to make any improvements
to this program, the White House is writing a prescription for a
program that cannot survive. I do not want to see that happen. A number
of us in this body took some real risks to be part of this bipartisan
plan. What I want to do is roll up my sleeves and work with the
President, work with colleagues of both political parties, on a
bipartisan, cost-containment strategy that will save this program. That
is what this effort ought to be all about: saving this program.
I am not the only one who believes that Medicare's needs ought to
take precedence at this time. Here is what David Walker, the
Comptroller General of the Government Accountability Office, said
recently:
The Medicare problem is about seven times greater than the
Social Security problem and it has gotten much worse. It is
much bigger, it is much more immediate and it is going to be
much more difficult to effectively address.
The President has said he is going to tackle Medicare when he is done
with Social Security. But the facts are the facts, and the timetable
for trouble in Medicare is a lot tighter. At the very least now,
changes should be made to shore up the newest element of Medicare: the
hard-won prescription drug benefit, that every time we turn around the
costs go up and up.
So it is time to introduce the cost-containment, attention-to-detail,
and sharp-pencil accounting that has been lacking in this program so
far. I want to make it clear, failure to put in place those kinds of
approaches jeopardizes, in my view, the very survival of this program.
I do not want to see that happen.
Like a lot of colleagues--and the Senator from Oklahoma has devoted
his professional life to health care--I feel very strongly about this
subject. I got involved in health care back in the days when I was
codirector of the Oregon Gray Panthers and I could only dream about
this kind of opportunity for public service and to get this issue
right.
The reason I voted for the legislation initially is I thought it was
a first step. I thought it was a constructive step because it would
help people with very big bills and very low incomes. There were a lot
of other deficiencies in it, but I thought: At least we are getting
started because we are helping two groups where the need is very great.
But I think the events of the last few months, as I say, raise real
questions about whether this program can survive. I do not think,
frankly, the prescription drug benefit program can stand a whole lot
more bad news.
So what I would hope we would do, in addition to having the debate
about exactly how much this has gone up--it is very obvious it has gone
up and up repeatedly, and is sure to go up even more--is spend our time
with our sleeves rolled up, working in a bipartisan way, working with
the President of the United States, to make sure this program delivers
on its promise.
A good prescription drug benefit is something this country can't
afford not to have. Senator Coburn knows about this. He has probably
heard exactly the same experience I hear from physicians in Oregon who
tell me that they have actually put seniors in hospitals because there
is not an outpatient prescription drug benefit. That is pretty bizarre,
even by the standards of Washington, DC, to have people go into a
hospital, roll up these enormous costs under what is called Part A of
Medicare, because we don't have a sensible, well-designed prescription
drug benefit on an outpatient basis under Part B of the program.
When people say we cannot afford to do this, I think we can't afford
not to do it. But it has to be properly designed. It has to be
structured so as to make the best possible use of taxpayer resources
during a belt-tightening time in our Government.
[[Page S1322]]
I hope the President will reconsider his position. I hope the
President will recall his threat to veto changes to the Medicare drug
benefit. I assure colleagues, particularly colleagues on the other side
of the aisle, that I want to work with them in a bipartisan way. Having
voted for this legislation and having the welts on my back to show for
it, I want this legislation to succeed. So Congress has some heavy
lifting ahead to make sure there are responsible, practical adjustments
to this program that are going to save it for the future and to get the
job done right for the country's older people.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Ms. COLLINS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Martinez). Without objection, it is so
ordered.
Ms. COLLINS. Mr. President, I start my remarks by putting this debate
in context. Senator Levin, with whom I proudly serve not only on the
Homeland Security and Governmental Affairs Committee but also on the
Senate Armed Services Committee, catalogued some of the interrogation
techniques used by certain DOD personnel that for many months have
disturbed all of us. They have led us to hold hearings in the Armed
Services Committee and they have led the Intelligence Committee to
embark upon an investigation of the interrogation techniques used by
certain CIA employees. But today's debate is about Michael Chertoff. It
is about whether Michael Chertoff, who has repeatedly assured us by
direct testimony under oath and in written responses to questions that
he has had nothing to do with the interrogation policy, should be
confirmed to be Secretary of Homeland Security.
I want to make that very clear. The debate today is not about the
interrogation policies, the techniques that led to abuses that disturb
and concern us all. The debate today is about the fitness, the
qualifications, and the character of Judge Michael Chertoff for this
very important position.
I turn to some of the testimony that Judge Chertoff gave in response
to questions from Senator Levin and other members of the committee. I
note that his testimony before the committee was sworn testimony. He
was under oath, as are all of the nominees who come before our
committee. As this chart shows, Judge Chertoff testified as follows:
I was not aware during my tenure at the Department of
Justice . . . if there were practices in Guantanamo that
would be torture or anything even approaching torture.
In response to another question, he said:
I don't recall having any discussion about techniques that
the Defense Department was using in Guantanamo other than
simply the question of whether interrogations or questioning
down there was effective or not. I was never informed or had
no knowledge at the time . . . about any use of techniques in
Guantanamo that were anything other than what I would
describe as kind of plain vanilla.
Again, in response to a posthearing question submitted for the record
by Senator Levin:
[T]he tenor of the discussion was what information was
being furnished by detainees and whether detainees should be
encouraged to talk by providing offers of favorable treatment
in return for information. I recall no discussion of
mistreatment of detainees.
Mr. President, I quote from those responses because they are
unambiguous. In addition, in the prehearing questions, Judge Chertoff
stated unequivocally his opposition to torture, no matter where it
might occur.
Senator Levin has expressed his concern that the Department of
Justice has refused to release information redacted from an e-mail
discussing the interrogation techniques at Guantanamo Bay. I do not
believe the information Senator Levin seeks is relevant to the
important issue at hand, the nomination of Judge Michael Chertoff to be
the Secretary of Homeland Security.
Nonetheless, let's review what we know about this e-mail. The first
question that my colleagues might well ask about this e-mail is: Did
Michael Chertoff write the e-mail? The answer to that question is no.
Then my colleagues might say: Was the e-mail addressed to him? Again,
I inform my colleagues that it was not. The answer is no.
My colleagues might ask: Was he a recipient of this e-mail? Was he
cc'd on it, or bcc'd on the e-mail? Again, the answer is no.
Well then, you might ask: Was Michael Chertoff named in the e-mail?
Again, the answer is no.
In fact, you may ask: Had Michael Chertoff even seen the e-mail prior
to the day of his nomination hearing? Again, the answer is no.
Is it surprising that Judge Chertoff testified that he had never seen
the e-mail prior to the day of the hearing? Again, the answer is no, it
is not surprising at all because the e-mail was drafted a year after
Judge Chertoff had left the Department.
The real question, then, is what an unredacted copy of this e-mail
could possibly add to our evaluation of Judge Chertoff's qualifications
for the job of Secretary of Homeland Security? Senator Levin has said
that since this e-mail refers to some discussions that may have taken
place while Judge Chertoff was at the Department of Justice--even
though the e-mail was written more than a year after he left the
Department of Justice--Senator Levin says that if we got the names of
the Criminal Division staff who met with the FBI regarding the
interrogation techniques, we could attempt to question the officials
mentioned in the e-mails in order to, and I am quoting Senator Levin,
``refresh Judge Chertoff's recollection of these matters.''
First, I must say that the contention that we would need to know the
names and then go back and question Judge Chertoff in order to refresh
his recollection is, in my judgment, demeaning to Judge Chertoff. He
was straightforward in his testimony. He answered all the questions
that were posed to him, both before the hearing, at the extensive
hearing, and after the hearing. He was unequivocal in his testimony on
this issue. As I have shown you with the previous posters, he said:
I was not aware during my tenure at the Department of
Justice if there were practices at Guantanamo that would be
torture or anything even approaching torture.
Second, the suggestion that we should question DOJ officials about
Judge Chertoff's sworn testimony is one that I reject outright because
what we are saying is that it assumes Judge Chertoff was not being
candid with the committee. There is no evidence of that. There is no
indication at all that he was not completely truthful and forthright
with the committee.
Judge Chertoff has already testified under oath. I see no reason why
we should not take his testimony, his sworn testimony, at face value.
This is particularly true when there is nothing in the e-mail that
suggests his testimony was not accurate. We have no reason to believe
it was not accurate. I would have to ask, have we become so cynical
about the good people who are making extraordinary sacrifices to serve
their country? If this is what the confirmation process is becoming all
about, then I fear that very good people are going to say, No. They are
going to say, It is not worth having my honesty questioned when all I
am trying to do is to serve my country.
I remind my colleagues that Judge Chertoff is giving up a lifetime
appointment on one of the most prestigious courts in our country in
order to answer the call to serve in one of the most difficult, the
most thankless jobs in the Federal Government. It troubles me deeply
that we have delayed his nomination, that there are some who are
saying, No, I want to check on this testimony more, when there is no
evidence to suggest that is warranted.
We need a strong leader in place at the Department of Homeland
Security. It has been 13 days since Secretary Ridge has vacated that
position. We know the Department has problems--that there are
management problems, there are policy challenges. We need to get the
Secretary in place as soon as possible. He needs to be able to get his
team in place to tackle the serious security issues and management
challenges facing the Department.
I think our country is very fortunate to have someone with the
background, the experience, the intellect, the qualifications, and the
integrity of Judge Chertoff who is willing to serve. I think
[[Page S1323]]
we should have confirmed him last week, and I think we need to get him
in place without further delay.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, first, let me comment on the statement of
my dear friend, Senator Collins, that somehow or other seeking
information is questioning anybody's integrity. We are seeking
information because it is relevant to a confirmation process.
Senator Lieberman and I wrote a letter seeking information which
relates to the confirmation process in a very important way. We are not
going to get that information because the Department of Justice has
decided they will not unredact the names of Government employees who
were present at discussions relative to the procedures used, the
techniques used at Guantanamo during the period that Judge Chertoff was
head of the Criminal Division and where those Government employees were
members of his Criminal Division. That is not a challenge to anybody's
integrity. That is not demeaning. That is simply carrying out a
responsibility that this Senate has to be fully informed as to the
facts that relate to a nominee. It is that simple. It is that
important.
For the Department of Justice to say the names of Government
employees somehow or other should remain secret when those employees,
paid by the taxpayer, were present during conversations at which the
FBI strongly objected to the techniques and tactics which were being
used by the Department of Defense to obtain information is simply
something that we as a Senate cannot accept.
We cannot be denied relevant information. We cannot and should not be
denied relevant information.
There is only one question here, it seems to me; that is, the request
of Senator Lieberman and myself for relevant information. If it is
relevant information, every one of us should support the request. If it
is not relevant information, it is a totally different issue. But is it
relevant?
If members of Judge Chertoff's staff, whose names have been covered
up by the Department of Justice--if we are denied those names, is it
relevant that members of the Department of Justice Criminal Division
who were present during conversations apparently after conversations--
we at least know of one--where there were heated disputes between the
FBI and the Department of Defense over the tactics which were used at
Guantanamo Bay--Judge Chertoff doesn't remember those discussions. He
said that twice in his answers. I don't disagree with him at all. If he
doesn't remember, I take him at his word--he doesn't remember.
That is not the question. The question is, Are there members of his
division who were present so that we can ask them whether they informed
their supervisors, and whether, just possibly, Judge Chertoff, then
head of the Criminal Division, was informed. If he doesn't remember
being informed, I don't doubt that. I am not doubting that at all.
But I guess the most direct question I can ask is this: If those
names were not redacted, if instead we had those four names there, is
there any doubt in any Senator's mind that we could ask those people
whose names we know whether they informed their supervisors of this
heated debate between the FBI and the Department of Defense personnel?
The FBI in memo after memo after memo was strongly objecting to the
practices of military members of the Department of Defense, some of
whom were pretending they were FBI members. This was not one casual
conversation. There was a major confrontation going on between the FBI,
strongly, heatedly, telling the Department of Defense: We can't
participate in what you are doing. We object to what you are doing.
Those techniques are wrong. We cannot participate. We are going to
withdraw from these techniques.
Then, if at least in one of these conversations--you have four SESs,
executives in Judge Chertoff's division, which he headed, who were
present at the discussions--he says: I don't remember. Fine. I take him
at his word.
But--at least if we do not have the responsibility--we surely have
the right, if we know those names, to ask those folks: Look. You were
present at these conversations. You were representing the Criminal
Division of the Department of Justice. The FBI was strongly objecting
to what was going on.
These were abusive techniques that were being used which have created
so much problem for this country and for our military. You were
present. Our question to you is this, Did you inform any of your
supervisors of what you heard? And, by the way, perhaps for a different
hearing, if not, why not? But if they say no, that means obviously
there is nothing with which to refresh Judge Chertoff's memory.
The good Senator from Maine asked a number of questions to which the
answers were clearly no. Did he write these documents? He did not. Did
he receive a copy of this document? He did not. But the question that
yes is the answer to is, if the names of those employees of the
Criminal Division were written out in this document and not redacted,
would it be appropriate for a Member of the Senate or our staff to ask
those employees, Did you inform your supervisors of these debates going
on, which were raging debates between the FBI, the Department of
Justice on one side and the Department of Defense on another? The
answer to that question, I think, is yes.
I think, without any doubt, if those names were there and not covered
over by the Department of Justice, that it would be perfectly
appropriate for any of us to ask John Doe: Did you report those
discussions in which you were participating? Were you both, apparently,
putting forward objections to the techniques being used and heard the
FBI objecting to those techniques? Did you let your supervisors know?
If that is a legitimate question to ask those unnamed employees, if
we had their names, if that is a legitimate question to ask them, is it
not legitimate to find the names of those employees so we can ask a
legitimate question? I think the answer is yes.
I don't disagree at all with the Senator from Maine when she says
that Judge Chertoff didn't write it--apparently didn't receive it and
did not name those questions at all--and answered yes. But there are a
couple of questions which also have to be answered yes. If we knew the
names of those employees who were present at those discussions, could
we ask them whether they notified their supervisors? I think the answer
is yes. That is an appropriate question.
Second, if so, is it an appropriate question to ask, Did you ever
talk to Judge Chertoff about it?
That doesn't challenge his integrity. He says on a number of
occasions that he doesn't recall having any discussion about
techniques. I take him at his word.
But if they recall talking to their supervisors, then, it seems to
me, we are in an area which is perfectly appropriate to a confirmation
process.
There is no intent to challenge his integrity. In fact, I am going to
vote for Judge Chertoff based on what I know. As I explained before, I
am going to vote for Judge Chertoff based on the information before us.
But I think as a body we should reject unanimously--all of us--the
excuse given by the Department of Justice. If the Privacy Act is not
allowed in naming Federal employees who were parties to discussions, we
have to reject that argument, or else we can forget congressional
oversight.
We get tens of thousands of documents a year that have names of
Federal employees we need and to whom we need to talk. They cannot be
protected by the Privacy Act. The Privacy Act is intended to protect
the privacy of citizens of this country. It is not to protect from
congressional oversight Federal employees engaged in their duties. That
is a misuse of a statute by the Department of Justice that has found
all kinds of reasons over the years to deny this branch of Government
access to documents.
The issue here is a broader issue. This is an example of a problem
that we have in terms of getting documents. I laid this out in an
earlier speech this afternoon in terms of the difficulty of getting
documentation from this administration and other administrations--at
the moment, this administration--that is relevant to our oversight
function and that is relevant to our confirmation process.
I think we have done a very inadequate job of oversight relevant to
[[Page S1324]]
prisoner abuse. The reasons given by myself were set forth earlier this
afternoon. They are unacceptable.
We have a responsibility to our troops. Our troops are in danger
because of what we did to other people. It endangers the men and women
in our military. We cannot mock or demean the Geneva Convention. We
cannot engage in practices which are not allowed by the Geneva
Convention. When we do, we endanger not just our troops, as important
as that is, but we also endanger the security of this Nation.
That is the backdrop here. This is not an oversight hearing we are
talking about. This is a confirmation proceeding of one man whose
reputation is superb, whose integrity is unquestioned by me. And I do
not know of anyone who questions his integrity. The question is, As
part of the confirmation proceeding, do we have a right--maybe not a
responsibility, although I could argue that question, but clearly the
right--to ask people who were in his division who were present at these
discussions whether they passed along this intense conflict between the
Department of Justice and the FBI on the one hand and the Department of
Defense on the other hand?
The document in question is, indeed, as the Senator from Maine said,
a 2004 document. But the reference is to events that occurred in 2002
and 2003. The way we know that is because the document itself makes
reference to the two generals who were present in Guantanamo Bay in
2002 and 2003 and were responsible for running the detention facility.
We also know it comes after the events in question because the purpose
of this document is to go back into the record and to look for previous
documentation that related to this subject.
Here is what triggered this document. It was an email that asked the
following question: Has there been any written guidance given to FBI
agents in either GTMO or Iraq about when they should stand clear
because of the interrogation techniques being used by DOD or DHS?
That is what set in motion the review of prior emails that exist,
prior activities that existed. So this document was clearly written
when that became a major issue in 2004. But it was precipitated by the
request to go back and see whether there has been any written guidance
to FBI agents.
Again I expect that most or all Members will vote for Judge Chertoff.
I will, based on what I know.
The disagreement I have is with the Department of Justice as to what
we are not allowed to see, although it is relevant to this confirmation
process.
Senator Lieberman and I wrote a letter. I ask unanimous consent this
be printed in the Record, as well as the response to Senator Lieberman
and my letter, along with a three-page email, May 10, 2004.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Senate, Committee on Homeland Security and
Governmental Affairs,
Washington, DC, February 4, 2005.
Hon. Robert S. Mueller III,
Federal Bureau of Investigation, J. Edgar Hoover Building,
Washington, DC.
Dear Director Mueller: The Homeland Security and
Governmental Affairs Committee is currently considering the
nomination of Judge Michael Chertoff to be Secretary of the
Department of Homeland Security (DHS). The enclosed document
came to our attention during preparation for the nomination
hearing, and the purpose of this letter is to request an
unredacted copy for review.
The document consists of three FBI internal emails dated
May 10, 2004, marked by Bates Nos. 2709 to 2711. The redacted
version was recently released by the FBI in response to a
request by a private party under the Freedom of Information
Act. The document indicates that FBI personnel were deeply
concerned about interrogation techniques which were being
used in Guantanamo Bay by the Department of Defense and DHS
personnel. It further indicates that FBI personnel
communicated with personnel in the Department of Justice,
including the Criminal Division, regarding their concerns
about interrogation techniques in use at Guantanamo Bay.
Based on the content of the document, we believe many of the
referenced events occurred during the tenure of Judge
Chertoff as head of the Criminal Division, and an unredacted
copy of this document will allow a fuller understanding of
the events being discussed.
We ask that an unredacted version of this three-page
document be provided to the Office of Senate Security where
we and staff members with appropriate clearance can review
it. Please provide an unredacted copy to the Senate Security
Office no later than 4:00 p.m. on Friday, February 4, 2005.
If you will not provide a copy of this document, please
provide a legal justification for doing so.
Thank you for your attention. If your staff has any
questions, please have them contact Elise J. Bean (Sen.
Levin) or Laurie Rubenstein (Sen. Lieberman).
Sincerely,
Joseph Lieberman.
Carl Levin.
____
Department of Justice,
Office of Legislative Affairs,
Washigton, DC, February 7, 2005.
Hon. Carl Levin,
U.S. Senate,
Washington, DC.
Dear Senator Levin: This responds to your letter to FBI
Director Mueller, dated February 4, 2005, which requested the
unredacted version of a classified three-page FBI document,
dated May 10, 2004, regarding the interrogation of detainees
at Guantanamo Bay.
We have carefully considered your request, but concluded
that the unredacted document cannot be released in response
to your request because it contains information covered by
the Privacy Act, 5 U.S.C. 552a, as well as deliberative
process material. We note, however, that the document is
comprised of FBl messages that were not sent by or addressed
to Judge Chertoff and it contains no reference to him by name
or otherwise.
We hope that this information is helpful. We are sending an
identical letter to Senator Lieberman, who joined in your
letter to us. Please do not hesitate to contact me if you
would like additional assistance regarding any other matter.
Sincerely.
William B. Moschella,
Assistant Attorney General.
____
message
From: ------ (Div 13) (FBI)
Sent: Monday, May 10, 2004 12:26 PM
To: HARRINGTON, T J. (Div 13) (FBI)
Cc: BATTLE, FRANKIE (Div 13) (FBI); ------ (IR) (FBI); ------
(Div 13) (FBI); ------ (Div 13) (FBI); ------ (Div 13)
(FBI); CUMMINGS, ARTHUR M. (Div 13) (FBI)
Subject: Instructions to GTMO interrogators.
ORCON, NOFORN RECORD 315N-MM-C99102
TJ, I will have to do some digging into old files ------.
We did advise each supervisor that went to GTMO to stay in
line with Bureau policy and not deviate from that ------. I
went to GTMO with ------ early on and we discussed the
effectiveness ------ with the SSA. We (BAU and TOS1) had also
met with Generals Dunlevey & Miller explaining our position
(Law Enforcement techniques) vs. DoD. Both agreed the Bureau
has their way of doing business and DoD has their marching
orders from the Sec Def. Although the two techniques differed
drastically, both Generals believed they had a job to
accomplish. It was our mission to gather critical
intelligence and evidence ------ in furtherance of FBI cases.
In my weekly meetings with DOJ we often discussed ------
techniques and how they were not effective or producing Intel
that was reliable. ------ (SES), ------ (SES) ------ (now
SES) ------ at the time) and ------ (SES Appointee) all from
DOJ Criminal Division attended meetings with FBI. We all
agreed ------ were going to be an issue in the military
commission cases. I know ------ brought this to the attention
of ------.
One specific example was ------. Once the Bureau provide
DoD with the findings ------ they wanted to pursue
expeditiously their methods to get ``more out of him'' ----
--. We were given a so called deadline to use our traditional
methods. Once our timeline ------ was up ------ took the
reigns. We stepped out of the picture and ------ ran the
operation ------. FBI did not participate at the direction of
myself, ------ and BAU UC ------. We would receive IIRs on
the results of the process.
I went to GTMO on one occasion to specifically address the
information coming from ------. We (DoD 3 Star Geoff Miller,
FBI, CITF ------ etc) had a VTC with the Pentagon Detainee
Policy Committee. During this VTC I voiced concerns that the
Intel produced was nothing more than what FBI got using
simple investigative techniques (following the trail of the
detainee in and out of the US compared to the trail of ------
was providing ------ portion of the briefing. ------ was
present at the Pentagon side of the VTC. After allowing ----
-- to produce nothing, I finally voiced my opinion concerning
the information. The conversations were somewhat heated. ----
-- agreed with me. ------ finally admitted the information
was the same info the Bureau obtained. It still did not
prevent them from continuing the ------ methods''. DOJ was
with me at GTMO ------ during that time.
Bottom line is FBI personnel have not been involved in any
methods of interrogation that deviate from our policy. The
specific guidance we have given has always been no Miranda,
otherwise, follow FBI/DOJ policy just as you would in your
field office. Use common sense. Utilize our methods that are
proven (Reed school, etc).
If you would like to call me to discuss this on the
telephone I can be reached at ------.
[[Page S1325]]
____
Message
From: Harrington, T J. (Div13) (FBI)
Sent: Monday, May 10, 2004 9:21 AM
To: ------ (Div13) (FBI)
Subject: RE: pls confirm
SENSITIVE BUT UNCLASSIFIED NON-RECORD
We have this information, now we are trying to go beyond
did we ever put into writing in an EC, memo, note or briefing
paper to our personnel our position ------ that we were
pursuing our traditional methods of building trust and a
relationship with subjects. Tom
____
From: ------ (Div13) (FBI)
Sent: Monday, May 10, 2004 10:52 AM
To: Harrington, T J. (Div13) (FBI)
Cc: ------ (Div13) (FBI; BATTLE, FRANKIE (Div 13) (FBI);
BOWMAN, MARION E. (Div09) (FBI)
Subject: RE: pls confirm
SENSITIVE BUT UNCLASSIFIED NON-RECORD
BAU at the request of the then (GTMO Task Force, ITOS1)
wrote an EC (quite long) explaining the Bureau way of
interrogation vs. DoDs methodology. Our formal guidance has
always been that all personnel conduct themselves in
interviews in the manner that they would in the field. ------
along with FBI advised that the LEA (Law Enforcement
Agencies) at GTMO were not in the practice of the using ----
-- and were of the opinion results obtained from these
interrogations were ------ BAU explained ------ FBI has been
successful for many years obtaining confessions via non-
confrontational interviewing techniques.
We spoke to FBI OGC with our concerns. I also brought these
matters to the attention of DOJ during detainee meetings with
------ express their concerns to ------.
------has a copy of all the information regarding the BAU
LHM. I believe she has provided that to TJ Harrington.
I may have more specific innformation in my desk at HQ. I
will search what I have when I return (5/17).
____
From: Harrington, T J. (Div13) (FBI)
Sent: Monday, May 10, 2004 4:33 AM
To: BATTLE, FRANKIE (Div13) (FBI); ------ (Div13) (FBI) ----
-- (Div13) (FBI)
Subject: FW: pls confirm
SENSITIVE BUT UNCLASSIFIED NON-RECORD
Please review our control files, did we produce anything on
paper???
____
From: Caproni, Valerie E. (Div09) (FBI)
Sent: Sunday, May 09, 2004 2:31 PM
To: ------ (Div09) (FBI); HARRINGTON, T J. (Div 13) (FBI) --
---- (Div13) (FBI) ------ (Div13) (FBI)
Subject: pls confirm
SENSITIVE BUT UNCLASSIFIED NON-RECORD
I think I've heard this several times, but let me ask one
more time:
Has there been any written guidance given to FBI agents in
either GTMO or Iraq about when they should ``stand clear'' b/
c of the interrogation techniques being used by DOD or DHS.
------
------.
DERIVED FROM: G-3 FBI Classification Guide G-3, dated 1/97,
Foreign Counterintelligence Investigations
DECLASSIFICATION EXEMPTION 1
SECRET//ORCON, NOFORN
Mr. LEVIN. I note in closing the part of this denial of the
Department of Justice that is unsustainable and should be rejected
unanimously by Congress is the statement that the material cannot be
released because it contains information covered by the Privacy Act as
well as deliberative process material. The Privacy Act reliance is
totally out of the ballpark. It is so far afield from any argument the
executive branch has used that we must reject that. If we do not, if we
accept the use of the Privacy Act to deny this Congress documents that
relate to activities of Government employees carried out in the
performance of their duties, we will have struck a major blow to the
oversight responsibilities of this Congress.
As to the second reason given, deliberative process material, there
are no conversations whatever that I can see that are with the
President of the United States. That reference to deliberative process
material also should be unacceptable to all Members of Congress
regardless of what side of the aisle we happen to be sitting on.
The PRESIDING OFFICER (Mr. Vitter). The Senator from Maine.
Ms. COLLINS. My good friend from Michigan is one of the best debaters
in the Chamber. He is a thoughtful Member. I suspect he may at one time
in his career have been an extraordinary trial lawyer.
However, we are not putting Judge Chertoff on trial. This is a
confirmation hearing. This debate is not about the names of certain
employees within the Justice Department. It is about whether we feel
the need to challenge the sworn testimony of a distinguished public
servant. Judge Chertoff has already told us, under oath, that he was
not aware of any practices at Guantanamo that ``even approach
torture.''
So what does my good friend from Michigan want to ask these Justice
Department officials? The answer is, whether they talked to Michael
Chertoff about interrogation techniques, the precise question that
Judge Chertoff has already answered in the negative. There is no basis
to doubt Judge Chertoff's sworn testimony before the committee. He has
answered all of the questions over and over again. The only reason to
get the names of these Justice Department employees is to challenge the
veracity of his answers. There is no basis for that. There is nothing
in his background, in his testimony, in his answers to us that should
lead us to question him further about this unless there is new evidence
that appears that suggests he was less than truthful with the
committee. There is no such evidence. This issue is not related to his
fitness to serve in this very important position.
I yield the floor.
The PRESIDING OFFICER. The Senator from Michigan is recognized.
Mr. LEVIN. I thank my good friend for what I think were flattering
references, but in any event I thank her because she is an absolutely
superb Member of this body and a great chairman of our committee. It
has been my pleasure to serve with her for a long time.
On this one, there are two questions which I want to repeat. I think
the answer to the questions has to be yes. The way I phrase the first
question is this: If those members of the Criminal Division's names
were on that document, would it be appropriate to ask them if they had
any conversations with their supervisors? Is that an appropriate
question? The answer is, clearly, yes.
This does not challenge anybody's integrity. As a matter of fact,
Judge Chertoff said in a number of places, ``I don't recall having any
discussion.'' At another point he said he did have a discussion. The
question is whether his recollection is different from someone else's.
That does not challenge his honesty or integrity. That simply says that
people's recollections are different, and when that is true, sometimes
people's recollections are refreshed.
It is a straightforward, legitimate question to ask people who worked
in his division, whether they notified their supervisor of these heated
conversations, these discussions that they participated in and
overheard between the Department of Justice and the Department of
Defense. If the answer to that question is yes, which I think it must
be, that it would be legitimate to ask those people if, when they heard
that debate, that heated discussion over tactics at Guantanamo, did
they inform their supervisors that the FBI strongly objects to the DOD
techniques and is not going to participate in any of those techniques,
would it be appropriate to ask them whether they notified their
supervisors if we knew their names?
The answer is yes, I think. If I am right, it is appropriate to ask
those four people that question, then it is appropriate to have the
names of those four people. That is as simple as I think I can make the
argument.
This is not, again, a challenge to anyone's honesty or integrity. It
is an effort to be thorough in a confirmation process about the events
which have torn this country away from some of our strongest allies,
the activities at Guantanamo which drifted over to Iraq and to Abu
Ghraib. According to the generals who investigated this matter, these
horrors, these abuses started in Guantanamo Bay.
Members of the Criminal Division, while Judge Chertoff was head of
that Criminal Division, heard of the debate relative to these
activities and these actions. They strongly objected to those actions
on the part of the DOD. I spent 20 or 30 minutes or more earlier today
going into the whole background of Guantanamo. This is not some minor
event that occurred somewhere in dusty history or in a history book.
These are recent events at Guantanamo which engendered heated
discussions, debates between the FBI, on the one hand, which said we
cannot participate in those techniques, and the Department of Defense,
on the other hand.
[[Page S1326]]
Now, when the administration, the Department of Justice, denies the
Congress an opportunity to ask legitimate questions, which we have the
right to ask--and if my dear friend from Maine does not think we have
the responsibility to ask them, that is a judgment which I do not
challenge; if she does not feel the need to ask these questions of
those employees, I do not challenge her decision on that whatsoever--
but given the entire setting of Guantanamo, and what it led to, and the
heated discussions that occurred there, with the FBI challenging the
DOD, and with Judge Chertoff's division employee members being present
during those discussions, some of us feel a responsibility to ask those
employees whether they passed along the information they were privy to.
So this is a bigger issue. It is a much bigger issue. As I say, I am
going to be voting for Judge Chertoff based on the information I have.
But we should not be denied this other information.
Again, I thank my friend from Maine. I yield the floor.
The PRESIDING OFFICER. The Senator from Maine is recognized.
Ms. COLLINS. Mr. President, the Senator from New Mexico wishes to
speak for up to 15 minutes as in morning business on an issue unrelated
to this nomination. I ask unanimous consent that he be so recognized
but that the time he consumes be taken from the minority side on this
debate.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The Senator from New Mexico is recognized.
Mr. BINGAMAN. Mr. President, I thank the Senator from Maine for her
courtesy, and my colleague from Michigan.
Science and Technology In The President's Budget
Mr. President, I rise as in morning business to speak about the
budget that has been submitted by the President, and particularly to
speak about the science and technology portions of the budget, the
portions of the budget that are intended to support science and
technology in this country.
In his recent State of the Union Message, President Bush said:
By making our economy more flexible, more innovative, and
more competitive, we will keep America the economic leader of
the world.
I agree with the President that strong economic growth is vital to
continued American leadership. I also believe innovation is the key to
that growth. But the reality of his proposed budget to spur innovation
for the next year does not square with the rhetoric we heard last week.
I fear this budget will do serious harm to our Nation's scientific
and technological capacity. And because it shortchanges our children
and threatens to deprive them of the prosperous America we have
enjoyed, the shame will be on us if we allow it to be enacted as it has
been presented to us.
We are about to embark on an intense debate about the priorities of
the Nation. This debate is all about the Nation's future growth and
prosperity, and that, in turn, is about our Nation's investment in the
foundations of discovery and innovation.
What will not be in dispute in this several month long debate is that
science, and the technology that flows from it, is recognized as the
principal engine of our economic growth. Nor will there be any
contention about the fact that America's present strength, prosperity,
and global preeminence depend upon the fundamental research we do in
this country. The scientific and economic record of the past 50 years
is overwhelming proof on both of those points.
Regrettably, knowing full well that economic growth is the
prerequisite for opportunity, and that scientific research is a basic
prerequisite for growth, this budget blueprint for the next fiscal year
falls far short of meeting our long-term national goals. It is unsuited
to the challenges of our time, it is built on short-term political
calculations and it weakens one of the pillars of our country's future
economic health. It is not a clearly thought out strategy to ensure the
preeminence of the U.S. scientific enterprise.
The budget proposes much larger cuts in domestic discretionary
research and development programs than is generally understood. The
less than straightforward numbers of the Office of Management and
Budget have the effect of obscuring the true impact of the cuts that
are proposed. Moreover, once one gets past 2006, the proposed budgets
in the outyears for domestic discretionary programs throughout the
Government would be cut below the 2004 and 2005 levels, even before
inflation is taken into account.
Many of these research and development programs that are being
curtailed or cut back have provided the cornerstone for our recent
economic progress and have spurred the creation of high-paying jobs and
record prosperity.
Basic research is the primary source of the new knowledge that
ultimately drives the innovation process. The Federal Government
supports a majority of the Nation's basic research, and the Federal
Government supports nearly 60 percent of the research and development
performed at U.S. universities. Equally important, federally funded
research and development at universities and colleges plays a key role
in educating the next generation of scientists and engineers and
providing a technically skilled workforce.
So scientific investments have never been more important to our
Nation's future. And never have we stood on the verge of so many
stunning advances in technology and science. Cutting back now would be
like cutting back our defense budget at the height of the Cold War.
Increases are disproportionately concentrated primarily in two
Departments--Defense and Homeland Security--while other research and
development funding agencies are left with very modest increases or
with increases for some agencies that are offset by flat funding or
cuts in other agencies. In the name of national security, we are
building a swaying tower of insecurity with regard to our long-term
future.
In order to make room for huge tax cuts and to address the record
budget deficits they have helped to create, the administration now
proposes major cuts in the research our country depends on to maintain
its technical leadership and ensure that Americans continue to enjoy
growing prosperity and high-paying jobs.
The budget distinguishes between Federal R&D spending and Federal
spending for ``Federal science and technology.'' The Federal science
and technology designation, recommended by the National Academy of
Scientists, is intended to highlight ``activities central to the
creation of new knowledge and technologies more consistently and
accurately than the traditional R&D data.''
It includes the full budgets for the National Institutes of Health
and the National Science Foundation, the Defense 6.1 and 6.2 research
programs, the various Energy Department R&D programs, and a variety of
research efforts at other agencies. Overall, this Federal science and
technology designation encompasses nearly all of Federal basic
research, more than 80 percent of Federal applied research, and about
half of civilian development.
It does not include defense development, testing, and evaluation.
The overall Federal science and technology budget suffers a 3-percent
decrease in real buying power under the proposal we have received.
Businesses have always looked to the Federal Government to support the
lion's share of basic research that has led to business successes in
modern aircraft and computing and in many other areas.
For Federal science and technology, the President's budget proposes a
reduction of $877 million, to $60.2 billion. Among other things, it
provides a death sentence for the Advanced Technology Program, and it
slashes funding for kindergarten through twelfth grade science and math
education.
President Bush's proposed 2006 budget flat-lines or cuts funding for
key Federal medical and health research agencies. Today's miracles of
modern medicine are the result of past research in physics, chemistry,
mathematics, computer sciences, and engineering, most of which was
carried out in universities by faculty and student researchers and
supported by the National Science Foundation, the National Institutes
of Health, the Department of Energy, and several defense agencies.
The National Science Foundation, in this proposed budget, is woefully
underfunded. Two years ago the President
[[Page S1327]]
signed a bill authorizing the doubling of the budget of the National
Science Foundation, the premier agency supporting basic research in all
fields of science and engineering in the Nation's outstanding
universities, and tasked with promoting investments in science, math,
and engineering education. The administration's request next year for
the NSF is $2.91 billion or 34 percent below the fiscal year 2006 level
that was authorized in the bill signed by the President. Adjusted for
inflation, the real purchasing power of NSF actually declines in next
year's budget. The National Science Foundation education programs
continue to be devastated. They are down another 24 percent from last
year's level.
If the administration believes in closing the gap in science and math
performance between our students and the rest of the world, how is that
possible when proposing major cuts in science and math education
programs?
The National Institutes of Health, the Nation's principal source of
funding for the treatment of cancer, AIDS, diabetes, and Alzheimer's,
would decline 1.4 percent in constant dollars. The number of research
project grants funded by the NIH in fiscal year 2006 would drop. This
proposal, if enacted, will be the worst NIH budget since 1970.
The Centers for Disease Control and Prevention, critical in preparing
us for potential epidemics from possibly devastating new infectious
diseases and biological terror, is proposed to be cut by 9 percent in
constant dollars, while the Agency for Healthcare Research and Quality
would be flat funded at $319 million.
At the Department of Energy, the Federal science and technology
budget would drop by $278 million or 5 percent. The science programs in
the Department of Energy that support much of the Nation's premier work
in physics and material sciences are cut 6 percent in real spending.
While the President's rhetoric during the State of the Union supported
renewable energy sources and energy efficiency, the budget does not.
Renewable energy research is cut 9 percent in constant dollars. Energy
efficiency is cut 5 percent. All other energy programs--nuclear, fossil
fuel, transmission, and distribution--are proposed for a decline of 9
percent.
The administration is also undercutting efforts to support a
technology-driven economy by slashing the budgets for the National
Institute of Standards and Technology. The fiscal year 2006 request is
24 percent less than the fiscal year 2005 appropriated level of $708
million. The request eliminates the Advanced Technology Program,
including $43 million of funding for ongoing projects that companies
are relying on and planning to complete. The Advanced Technology
Program is an industry-led, competitive, cost-share program that allows
U.S. companies to develop the next generation of breakthrough
technologies. It enables them to compete aggressively against foreign
rivals.
According to its 2004 annual report, returns from just 41 of the 736
ATP projects have exceeded $17 billion in economic benefits, more than
eight times the amount of money spent for all of the 736 projects. The
National Academy of Sciences has found ATP to be an effective program
that could use more funding and use it wisely.
Buried within the Department of Defense budget are cuts to
investments in science and technology that will substantially undermine
our warfighting capabilities 10 to 15 years from now. Defense research,
both basic and applied, are starved and, when inflation is factored in,
we will end up buying less research than we did before. The Federal
science and technology budget at the Department of Defense would drop
by $905 million or 14 percent. For decades possession of superior
technology has been the cornerstone of U.S. military strategy.
Maintaining this technological edge has become even more important as
our military faces new and formidable dangers to countering chemical,
biological, nuclear, and high explosive threats and attacks. This
budget makes a grave mistake in saying that America's greatest military
assets are no longer our greatest research universities.
Overall, the Federal budget for science and technology would decline
by over 3 percent and would decline by 4 percent in the absence of the
requested increase for manned spaceflight.
I have a chart that sums up all of these figures I have gone through
and points out that at every agency of the Government, every department
except NASA, we are seeing cuts proposed for basic research, science,
and technology in this budget that has been presented.
Given the fierce competition that U.S. businesses face from China and
India and other nations, even in high technology products, this is a
particularly dangerous time for America to be cutting back on support
for innovation. Many of our senior industry, military, and academic
leaders are expressing alarm that real Federal spending in basic
research has stalled. They worry whether we are starting to lose our
edge in basic scientific research. They wonder if we are losing sight
of the importance of long-term investments in creating the conditions
of prosperity. Their fear is that the administration's other
priorities, combined with the enormous deficits we face, will squeeze
out these productivity-enhancing investments. They are concerned that
funding for Federal nondefense basic science and technology programs
will continue to stagnate or decline. And if we allow such an erosion
of America's ability to innovate, they warn, then be prepared for the
wrenching, turbulent social and economic change that surely will
follow.
There are many powerful arguments for expanding the basic research
agenda in this country, even in these difficult economic times. I hope
the President and this Congress will step up to the task of rethinking
and realigning our budget proposals to reflect the importance of our
investments in science and technology.
The greatest tragedies, of course, will be the missed opportunities.
How many excellent research proposals will be left on the National
Science Foundation's cutting room floor, how many fewer students with
fewer National Institutes of Health grants will be pursuing research
careers, how many advances in conquering disease will be slowed, and
how many new lifesaving technologies will be delayed in reaching our
warfighters?
This failure of intellectual leadership could not come at a worse
time.
Now is precisely when we need enlightened national leaders who fully
understand the value of basic research in science and technology. High-
tech R&D is so enmeshed in our economy that it is part and parcel of
the jobs and growth issue.
The issue of outsourcing high-tech, high-wage jobs--reverse brain-
drain--has moved front and center to our economic worries. American
workers, facing rising economic insecurity, are filled with anxiety and
unease because they realize that almost any service that can be
delivered in bits and bytes and does not require face-to-face
interaction with customers is up for grabs.
We are on the brink of a new industrial and commercial world order.
The successful competitors in the increasingly fierce global scramble
for supremacy will not be those who simply make products faster and
cheaper than anyone else. The big winners will be those who develop
talent, techniques, and tools so advanced that there is no competition.
That means the United States must secure unquestioned superiority in
nanotechnology, biotechnology and information technology. And that
means upgrading and protecting the investments that have given us our
present national stature and our unsurpassed standard of living.
Coming to grips with this issue is important if we wish to remain at
the epicenter for the ongoing revolution in research and innovation
that is driving 21st century economies all over the world. The reality
is that in this 21st century global economy, China, India, and other
nations which were once considered economic backwaters have discovered
how to build strong economies around sophisticated technology. We
should be concerned about our competitive position relative to our
global rivals' investments in research and development. While we are
limiting our budget increases in the civilian arena, other countries'
investments are moving up very substantially.
In the European Union, the United Kingdom is planning on boosting its
R&D spending to 2.5 percent of its gross domestic product. The French
are aiming at investing 3 percent of their budget in research and
development.
[[Page S1328]]
Spain announced an ambitious plan to lift R&D funding by 25 percent
between now and 2008, while excluding military spending from the
equation.
On the Pacific Rim, China is doubling the proportion of GDP it spent
in the last decade on R&D, India is raising its funding of science
agencies by 27 percent, and Japan is increasing its investments in life
sciences research by 32 percent, while South Korea is upgrading
research spending by 8.5 percent. They are resolved to reach
technological parity with the West.
What do we do about these international challenges? We have
absolutely no choice but to emphasize what we do best in this coming
rivalry. Our most important strength has always been innovation. Our
can-do spirit of commercializing technological innovation has always
heen America's core competence. We do it far better than anyone else.
But faced with these other potential innovators on the global scene, we
must start doing it even better.
As our Federal R&D commitments shrink, so too does the pool of
technically trained talent, forcing industry and academia to look
abroad for skilled knowledge workers. Education and training of
scientists and engineers are tied to Federally sponsored research
performed in the Nation's laboratories and universities.
The best course is to increase Government funding for basic research
and to spend more on graduate education in science and engineering, not
to spend less in these important areas, which the President has
proposed. I hope those involved with the Appropriations Subcommittee
will focus on this in their deliberations this spring.
America has always been a Nation built on hope--hope that we can
build a prosperous, healthy world for ourselves and for our children.
But it is clear that these long-standing American aspirations depend
critically on our far-sighted investment in science and technology
which lies at the center of this hope. Leadership in science and
engineering and the world's best education and training system are
essential for ensuring Americans well-paying jobs and essential for our
security.
When J. Robert Oppenheimer, the renowned physicist, warned President
Franklin D. Roosevelt in 1943, about Germany's plan to build an atomic
weapon, FDR replied in a secret letter that ``whatever the enemy may be
planning, American science will be equal to the challenge.'' Never has
a prediction been so prescient.
We know with every fiber of our being that the dominance of our
fundamental research enterprise is a core American strength that must
be preserved--and we must not let our position erode and compromise our
future economic and national security.
By sustaining our investments in basic research, we can ensure that
America remains at the forefront of scientific capability, thereby
enhancing our ability to shape and improve our Nation's and the world's
future.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. LIEBERMAN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LIEBERMAN. Mr. President, I am proud to rise today to express my
support for the nomination of the Honorable Michael Chertoff to be
Secretary of the Department of Homeland Security. I do so as the
ranking Democrat on the Homeland Security and Governmental Affairs
Committee, the committee that had the responsibility, opportunity, and
honor to bring forward the legislation that created the Department of
Homeland Security just a few years ago in the aftermath of the attack
against America of September 11, 2001.
So any nomination of an individual to head this Department is taken
with real seriousness by our Committee in general and by this Senator
in particular.
Judge Chertoff has an impressive record of public service and an
impressive record in the private sector as well. He has served his
country as a prosecutor, an assistant attorney general, and a Federal
judge. He comes to this moment in his career and to this responsibility
with a reputation as a strong, intellectually demanding leader who
works very hard. Those are characteristics that will serve him well if
and when he is confirmed for this job for which he has been nominated.
Judge Chertoff's dedication to public service surely is illustrated
by his willingness to give up a lifetime appointment to the Federal
bench to take on the challenge--and it is a real challenge--of heading
this critically important Department. I respect him for that. I
appreciate his patriotism, and his dedication to our country and to the
security of the American people.
The Secretary of Homeland Security is clearly one of the most
difficult jobs in our Federal Government today, not only for the
awesome responsibility it carries to safeguard the American people from
terrorist attack--or in some cases natural catastrophe--but also
because of the serious work that still needs to be done to make the
Department, still young, the success it needs to be. Since it was
created two years ago, the Department has become the leader among
Government agencies protecting the American people at home, which, of
course, is exactly why Congress created it.
Secretary Tom Ridge launched this process and admirably led the
Department through the initial steps of merging 22 separate agencies
and programs, each with a different culture, a different structure, and
different priorities. This was a tough, sometimes painful, job. After
all, to the best of our knowledge, it is the largest governmental
reorganization in half a century. We knew this transformation would be
a monumental task and that it would take time for the Department to
emerge as a coordinated, focused agency, even more so after--
unfortunately--it became clear that the Administration was not
providing the resources to this Department that it needed.
Understandably, the Department and its 180,000 employees--it is a
large department--still face significant challenges in many areas,
everything from its strategic vision to its day-to-day operations. But
I will stop here on the Senate floor, as I have done in our committee,
and thank Tom Ridge for the excellent job he did in getting this
Department up and running. It still has a way to go. It is probably no
longer in its infancy, it is in its childhood now, but it needs
somebody to bring it to full maturity. It needs support from the
Administration and Congress to enable the new Secretary to do exactly
that.
The lack of a focused, long-term homeland security strategy is one of
the greatest omissions thus far with this Department. No organization,
especially one as large and complicated as this one, can succeed
without a clear strategy and priorities. Given the importance of the
Department's mission, the new Secretary will immediately need to
develop an updated strategy that clarifies not only the Department's
priority, roles, and responsibilities but those of other key partners
as well. Consultation will have to occur with others in the
administration--for instance, at the Department of Defense, the
Department of Health and Human Services, and the Department of Justice
to ensure an integrated and overarching vision, a kind of to-do list of
how our government will tackle every dimension of defending our
homeland and the American people.
One of the changes recommended by experts that our Committee has
heard is the creation of an Undersecretary for Policy and Planning to
perform the kind of long-range thinking within the Department of
Homeland Security that has been needed. I am pleased that this
Department is underway and it should ease the new Secretary's burden
considerably. I know the chairman of the Committee--who is in the
chamber, I am glad to note--is focused on the possibility that we may,
through our Committee's work, assist the Department in doing just that.
If confirmed, Judge Chertoff and his deputies will need to have some
basic tools that the Secretary is now lacking--here I am talking as
fundamentally as adequate professional staff. The Secretary and the
Deputy Secretary of the Department must have sufficient numbers of
assistants to adequately manage 180,000 employees.
We heard testimony before our Homeland Security and Governmental
[[Page S1329]]
Affairs Committee that the Deputy Secretary's Office currently has five
staff members. Our distinguished colleague from Virginia, Senator
Warner, a member of the committee, former Deputy Secretary of the Navy,
recalled that when he was Secretary of the Navy he had a staff of well
over 100 and therefore wondered how the Deputy Secretary of Homeland
Security could manage with just five.
DHS employees must also be adequately trained to perform new and more
complex tasks than they performed before the challenge rose on
9/11, and we must help them do that.
Looking beyond these internal problems, the Department also has to
step up its efforts to eliminate persistent vulnerabilities in a
variety of areas of activity, both public and private. The security of
our borders and ports, for instance--they are still vulnerable. There
are vulnerabilities within our rail and transit systems and at the
Nation's core: energy, telecommunications, water, transportation, and
financial networks. Those systems, those pieces of our national life,
are not protected as well as they should be and need to be, three years
after September 11, 2001.
The Coast Guard, a proud, historic agency, a service of our
Government, is in dire need of having its fleet modernized. At the
current rate of funding it is going to take 20 years to complete the
upgrades that the Coast Guard believes it needs to take on the
additional responsibilities beyond its traditional ones which it has so
long performed so well, of protecting our coastlines from terrorism.
The administration must do more and we must do more with it to
prepare the Nation, also, for a bioterrorist attack. This is one of
those areas of vulnerability that keeps a lot of us up at night.
We must also do a better job of enlisting the private sector as a
necessary partner in our shared security, since the private sector
controls 85 percent of our critical infrastructure. When we think about
security from terrorism, we tend to think about public infrastructure.
But 85 percent of our critical infrastructure is controlled by the
private sector. We need to engage them more.
We know, for example, that an attack on a chemical facility could put
the lives of hundreds of thousands of our fellow citizens at risk. One
estimate that I saw recently--and this is the number most often cited
but it is not the total number--noted that there are 123 chemical
plants in our country. If there were an accident or an attack, the
resulting problem could endanger the lives of a million Americans.
Then you have to go one step beyond that. There are 700 chemical
facilities, smaller than the first 123, that if there were an attack on
them by terrorists, it would injure 100,000 people living around them.
Then there are 3,000 additional chemical facilities, smaller still,
but nonetheless an attack on them would endanger 10,000 people living
around them. Those are jarring numbers, and all the more so because we
know from published information that al-Qaida has examined and sought
information about chemical facilities here in this country. Yet
according to testimony given to our committee by Richard Falkenrath,
who served as deputy homeland security adviser to the President, now at
a think tank here in Washington, he said: ``We have done essentially
nothing''--and that is the word he used--``to reduce the inherent
insecurity of our chemical facilities.''
We have the most advanced and powerful and effective military in the
world, in the history of the world. One of the reasons is that we have
the most extraordinary trained, patriotic, brave soldiers, military
service men and women. But another reason is that we have invested
hundreds and hundreds of billions of dollars--trillions of dollars--
over the years, to give us the most powerful military in the history of
the world to protect our security around the world.
On September 11, 2001, we found that notwithstanding all of that
protection, we could be attacked right here at home. So we must invest
in our homeland security if it, too, is to be the best in the world,
particularly since those fanatics, as someone else has said, hate us
Americans more than they love their own lives. They hate us more than
they love their own lives and so are prepared to give their lives as we
saw on September 11 to take some of ours.
They are so focused on America that we need the best homeland defense
in the world. Last year, I believe--in a budget that was in some ways
shocking--the administration proposed cuts for first responders. Now
those cuts are increased. That is, funding for first responders,
believe it or not, is further reduced in the budget submitted by the
President last week for fiscal year 2006. That is wrong. We are all
aware of the funding realities and the deficit situation of our
Government. We also know that it is impossible to protect every
potential terrorist target. But our first responders in particular, who
risk their lives so the rest of us may be safe--in many ways the first
preventers of terrorist attacks--they deserve the training and
equipment they need to do their jobs for us.
They have to have the basic capability to talk to one another. We saw
this most painfully in the World Trade Center, that the inability for
law enforcers, first responders, to talk to each other led--according
to independent experts--to the loss of too many lives of first
responders who were on the scene.
That was not the first time that happened. We really need to do all
we can from the Federal Government to enable our first responders--
police, firefighters, emergency medical personnel--to have
interoperable communications equipment. What does that mean? In a
crisis, quite simply, to be able to talk to one another. We have to
explore technological breakthroughs that can enable us to make that
possible at the lowest possible cost.
This is a daunting list of responsibilities, of work on homeland
defense yet undone, that will face the new Secretary of Homeland
Security. But it is real, and I do believe, to help Judge Chertoff
achieve these aims quickly, all of us need to regain that sense of
anger, hurt, resolve, urgency that propelled us forward as one in the
aftermath of September 11.
I am confident Judge Chertoff, too, feels that sense of urgency and
will act upon it. That is most certainly the conclusion I reached when
he appeared before the Homeland Security and Governmental Affairs
Committee to answer quite an array of questions from committee members,
including several on his role in the prosecution of the war on terror
and the advice he provided on anti-torture laws when he was head of the
Justice Department's Criminal Division. Judge Chertoff assured us that
he was mindful of the historic tension between two values, two
attributes that define us as a nation, which is to say life and
liberty, and the need to protect ourselves against those who would deny
us either one.
I thought his exact words were eloquent and right to the point and
very reassuring, so I quote Judge Chertoff. He said:
I believe that we cannot live in liberty without security,
but we would not want to live in security without liberty.
Striking the right balance will be an ongoing challenge.
I am pleased that those who know him best say Judge Chertoff is more
than up to the task. His background in the law prepares him to balance
security and liberty. His record, not just as a law enforcer but as a
law clerk for former Supreme Court Justice Brennan, certainly prepared
him to protect our liberty while enhancing our security.
When our colleague and friend from New Jersey, Senator Corzine,
introduced Judge Chertoff, his friend, before our committee at the
hearing we held on this nomination, he referred to Judge Chertoff's
work with the New Jersey State Senate investigating and legislating
against racial profiling. Senator Corzine described that experience as,
``a test of balancing the protection of the American public or
protecting the New Jersey public and our civil liberties.''
No one, he said, could have balanced those competing interests ``more
intelligently'' than Judge Chertoff had.
I also welcomed Judge Chertoff's expression of his belief on the
Office of Legal Counsel's definition of torture from the August 2002
memo written by Assistant Attorney General Bybee--as discussed during
the nomination proceedings for Attorney General Gonzales--Judge
Chertoff expressed before our committee that he felt the
[[Page S1330]]
Bybee definition of torture was too narrow.
Of course, I and others are troubled by how the Justice Department
handled the detention of numbers of Muslim men and Arabic men who were
rounded up in the aftermath of September 11. It has been extensively
documented and validated and backed up by an Inspector General report
that many of the detainees were held under the flimsiest of pretexts,
were incarcerated for a long time without having their cases
investigated, and often denied access to lawyers and family members.
According to the Inspector General's report, some of them were
actually physically abused by guards in the prisons where they were
held. Judge Chertoff, in his testimony before our committee, said he
felt that mistakes were clearly made in the detention and treatment of
those detainees.
I wish the Department of Justice had acknowledged the same failures
when the Department of Justice Inspector General released its report in
2003. I hope and have confidence that the Department of Justice has
learned the same lesson that Judge Chertoff told us before our
committee that he has learned from that experience.
Judge Chertoff said when he appeared before us that while the PATRIOT
Act has engendered great public opposition, the evidence does not back
up the fear that it would be used to deprive large numbers of people in
this country of their fundamental liberties. On the other hand, the
apprehension and taking into prison of more than 700 Arabic and Muslim
men in the aftermath of September 11 and the way in which they were not
just taken into custody but the denial in a very un-American way of
basic due process guaranteed by the Constitution proves something to
us--that some of those so concerned about the PATRIOT Act also ought to
look at the absence of due process protection in our immigration laws,
which have been used to deprive people of their constitutional rights.
We ought to act to close those gaps in those immigration laws.
There are also lessons that I know others can take and will take from
the episode, as Judge Chertoff did in his previous position at the
Department of Justice.
As Secretary of Homeland Security, Judge Chertoff will be running a
department with many different agencies with many different missions.
Included within the Department are the agencies that deal with our
Nation's immigrant community. That relationship must not--and according
to law should not--be based primarily on prosecution and law
enforcement. We are, after all, a nation of immigrants. Those of us who
ourselves, our parents, or our grandparents, or our great-grandparents
were lucky enough to come to this country ought not to forget that
history, and ought to treat immigrants today with the same respect our
families expected as well. I have every confidence Judge Chertoff
understands that and will conduct this Department accordingly.
I am voting for Judge Chertoff, as I have said, because I believe he
is the right man for this job. But I do not want that decision to
obscure the fact that I share some of the concerns--more specifically,
objections--that Senator Levin has expressed this afternoon and
previously to the Justice Department's and the FBI's unwillingness to
share with members of the Committee an uncensored version of the
document Senator Levin referred to earlier, which says that certain
employees of the Criminal Division of the Justice Department were at a
meeting with representatives of the FBI in which the FBI members who
had been at Guantanamo expressed concern about the way in which
detainees were being treated there.
This is in part the ongoing dialog between Administrations and
Congress over most of our history about the sharing of information. But
I must say it is the latest chapter or episode in a rather intense
series of conversations between this particular Administration and
Congress because of its reluctance to share information with Congress
that I believe, as representatives of the people, we have a right to
expect. This has particularly been the case with our Homeland Security
and Governmental Affairs Committee--during the time I was chairman of
the committee as well as ranking member--when we conducted oversight,
or were considering nominations. Senators duly elected by their States
certainly have a right to see the material they believe necessary to
carry out their constitutional duty regarding advice and consent,
unless there is a Presidential invocation of executive privilege, or
some other clear statutory prohibition on sharing the particular
information which Members of the Senate feel they need to carry out
their responsibilities. In this case, the President does not claim
privilege.
The statute which the Justice Department cites for being unwilling to
share the names currently redacted from this document of FBI personnel
who were at this meeting pertaining to what has been happening at
Guantanamo--the Privacy Act--in my opinion simply doesn't apply. The
Privacy Act, I have always believed, was there to protect the privacy
of individual Americans, not the names of Federal employees whom
Senators believe they needed to know to carry out our constitutional
duties of advice and consent.
Indeed, as the Senator from Michigan has pointed out, the Justice
Department's position that the Privacy Act requires the administration
to withhold the names of high-level Government officials from a
document and from simply mentioning the officials attending an official
meeting, would be to allow for a stunning expansion of the Privacy Act
that could thwart even the most basic of congressional oversight
activities.
In other words, in any number of areas where Congress might want to
exercise our responsibility to oversee our Government, perhaps to
prevent fraud or the waste of billions of dollars of taxpayer money, to
say that you cannot get the name of an individual at a meeting because
of the Privacy Act would be truly unbelievable, and unacceptable,
unsustainable expansion of the Privacy Act. Therefore, I associate
myself with that part of Senator Levin's expression of concerns. I hope
every Member of the Senate will pay some attention to what Senator
Levin has said regarding this because it undercuts the authority of the
Members of the Senate to act. The Privacy Act was not meant to do that.
Having said that, why do I nonetheless go ahead and strongly support
Judge Chertoff? I believe Judge Chertoff in his testimony before the
committee responded to concerns that something in that redacted
document might disqualify him for this position. In the first place, he
was not at the meeting. Second, in response to questions filed with him
after the hearing and general statements he made at the hearing, he
specifically said under oath to the best of his recollection he was
never informed while head of the Criminal Division of the Justice
Department that there was any mistreatment of detainees at Guantanamo.
I accept that statement given by a Federal judge under oath.
I truly resent the withholding of the names of the people who were at
that meeting from the Senate. I conclude, nonetheless, that this
document does not at all go against Judge Chertoff's otherwise
extraordinary qualifications to lead this Department.
These are, obviously, not ordinary times. We are in a new chapter of
our history. In some sense every American feels insecure, more insecure
than before September 11. We have done a lot of things to raise
people's sense of security, including the capture of so many members of
al-Qaida, our victories militarily in Iraq and Afghanistan, and the
setting up of the Department of Homeland Security. This is,
nonetheless, a department whose leadership demands an extraordinary
commitment. Judge Chertoff has made that commitment, and he will bring
to this position an admirable record. He is a very strong choice to
lead the Department of Homeland Security's continuing transformation
into a strong, cohesive, well-operating force to secure the safety of
the American people; therefore, I urge all of my colleagues to support
this nomination.
I yield the floor.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Mr. President, I thank my good friend and the ranking
Democratic member on the committee for his statement. He has applied
his usual good judgment in coming to the conclusion that Judge Chertoff
deserves
[[Page S1331]]
his support and in urging our colleagues to vote for him when the vote
finally occurs tomorrow.
The Senator from Alabama is seeking to speak on the nomination. I
yield 15 minutes.
The PRESIDING OFFICER. The Senator from Alabama is recognized.
Mr. SESSIONS. Mr. President, I thank the chairwoman of the committee,
Senator Collins, for the leadership she and the Senator from
Connecticut have given to a number of issues and the fact that they
both have agreed Judge Chertoff should be confirmed as Secretary of
Homeland Security. Judge Chertoff was reported out of committee without
opposition.
The Homeland Security Secretary has three primary missions: One, to
prevent terrorist attacks within the United States--to protect our
homeland, to reduce America's vulnerability to terrorism, and to
minimize the damage from potential attacks and natural disasters in our
country. It takes a special individual to lead this Department. In my
view, Judge Chertoff represents one of those special individuals.
Judge Chertoff knows Rudy Guiliani, former mayor of New York and
himself a former high official in the Department of Justice and U.S.
attorney. I remember, when Rudy was leaving as U.S. attorney, someone
asked him about his successor and who it should be and what he should
be. He simply said this: Well, I hope they appoint somebody who can
contribute to the discussion every now and then.
Judge Chertoff can contribute to the discussion about homeland
security issues. He has an extraordinary record, and he is one of the
most able lawyers in America and one of the most committed lawyers in
this country to public service. He graduated--I know the Presiding
Officer is a Wake Forest man; it is a great law school--but he went to
Harvard, graduated from undergraduate school magna cum laude in 1975,
and also from Harvard Law School in 1978 the same--magna cum laude. Top
of his class at Harvard Law School.
He then clerked for a circuit judge on the Second Circuit Court of
Appeals. It is always quite an honor for a lawyer graduating from any
law school to be accepted to clerk for one of those judges. Not only
that, he was one of the very few--a rare few--chosen to clerk for a
Justice on the U.S. Supreme Court. He clerked for Justice William
Brennan on the U.S. Supreme Court. He comes at this with, certainly,
proven academic and intellectual abilities to handle the job.
Judge Chertoff has had great experience in areas that provide him an
opportunity to learn many of the things necessary to be a successful
Secretary of Homeland Security. He started out as an assistant U.S.
attorney in the Southern District of New York, which they like to think
is ``the'' Southern District of New York. When I was U.S. attorney in
the Southern District of Alabama, I always thought we were ``the''
Southern District. They certainly always had the reputation of hiring
some of the best lawyers in America. It was very competitive to be
selected as an assistant U.S. attorney in the Southern District of New
York. He did a great job there. He then moved to New Jersey to become
first assistant U.S. attorney. That is a big deal.
By the way, when he was in the Southern District of New York, he
prosecuted mafia cases, organized crime cases, racketeering cases and
major fraud cases. He was clearly involved in some of the most
significant cases in that most significant district of Federal law
enforcement in the country.
He goes to New Jersey as the first assistant U.S. attorney. As such,
he was the right arm of the U.S. attorney. In fact, he took on a great
deal of the responsibilities in that very large office. There is just
one office for the entire State of New Jersey. He did a good job there.
Soon he was appointed U.S. attorney--the boss--of that office by
President Bush. He served with distinction. At one time, he prosecuted
the very famous Mafia Commission case which charged the bosses of all
five New York La Cosa Nostra families with operating a pattern of
racketeering such as extortion, loan sharking, and murder, one of the
biggest cases ever brought against mafia. He prosecuted one of the more
important cases, criminal cases, that has been brought in the United
States, I suspect in the century; I would say it was at least in the
top 50 most important cases in the century. The case was prosecuted
under his leadership there. He did a lot of other cases of that kind.
He served as counsel to the committee on Whitewater. He handled
himself well there. As such, he has learned the responsibilities of
public service: to handle yourself carefully and conduct yourself with
high standards. He won a good report, from everyone who watched the
conduct of his activities on that committee, as being a fair and able
attorney--in general, and I think he won great acclaim for that.
One of the key characteristics of a Secretary of Homeland Security is
that they understand State and local law enforcement and governmental
agencies, that they can work with them, that they can get them together
and talk with them and communicate with them. To do that, when you take
the office, you need to understand those agencies, what they are about,
what their responsibilities are, what their daily duties are, and how
they operate.
Judge Chertoff, first as an assistant U.S. attorney and then as a
U.S. attorney, had as his duty to work with State and local agents.
Each U.S. attorney is required to form and moderate and lead a law
enforcement coordinating committee. He did that in the State of New
Jersey. I suspect he knows the sheriffs and the chief law officers
throughout that State, and probably in New York, too, on a first-name
basis. You have to do that in that position. He understands their
difficulties, and he understands the challenges and the responsibility
of the Federal Government to work with and to utilize the capacities of
State and local law enforcement.
Indeed, most of the law enforcement officials in America, by far, are
in State and local government, probably 90 percent. We can never be
effective against terrorists, people who come here illegally to harm
our country, without being able to work with and utilize and support
State and local law enforcement. He understands that very clearly.
I believe that will be one of his best characteristics that will help
him achieve the job of making this entity known as Homeland Security
work.
I must say, when this new Homeland Security Department was formed, as
one who worked with many of the agencies that were brought into it
under one new Secretary, I knew that it was going to be a challenge, a
very real, difficult challenge. Agencies were brought in that
Department, such as Immigration, Customs, and others, to all work
together with other agencies, such as the Coast Guard, to try to fight
terrorism and defend our homeland. That is a difficult task. Agencies
do not work well together. I remember the difficulties it took just to
get our Federal agencies to work together when I was a U.S. attorney. I
know Mr. Chertoff saw the same thing in his office.
Now he will have the responsibility of melding these agencies
together and have them work effectively and efficiently for a common
goal. It will not be easy. Most Americans probably would be surprised
to know they communicate with one another like foreign nations. They
sit down and sign memoranda of understanding or a treaty or something
on how they are going to handle this or that problem. I exaggerate a
little bit in the sense that at the grassroots level, most of the
agents, the various agencies, work together for the common good, but
there clearly is a bureaucracy problem of all Federal agencies, and it
is a real challenge to reform this new Homeland Security Department.
Mr. Chertoff, having first been an assistant U.S. attorney and then
having been a U.S. attorney and serving as the Chief of the Criminal
Division in the U.S. Department of Justice, understands that. He has
lived with it. Nobody who has held that position could be naive about
the difficulties of these issues. He, I am sure, had to work through
them in the past, and he will hit the ground with no misconceptions
about the challenge, no misconceptions about the good qualities of
Federal law enforcement and other officers throughout our country, but
with no misunderstanding about how difficult it is to make these
bureaucracies merge. So I believe that is
[[Page S1332]]
going to be one of his great challenges, but he has the experience and
ability to make it to work.
I, frankly, am one who is of the opinion that if a person has been in
the field actually prosecuting cases, actually working at night with
IRS agents and Customs agents and Immigration agents and FBI agents and
DEA agents, and all of these law enforcement officers, dealing with
their supervisors and bosses, they know something that somebody who has
never done that cannot understand. They have a comprehension of the
difficulty of our Government to work efficiently and productively. They
also, if they are good at it, have proven to be successful at it. That
is how you judge success in leadership, such as being a criminal
division chief or a U.S. attorney--how well you can get these agencies
to work together.
So I am excited about that. I have known him for a long period of
time. I can say, without hesitation, that when he was selected as U.S.
attorney in New Jersey, and I was a U.S. attorney myself at that time,
everyone knew that was a promotion on merit. His reputation for
excellence and skill and legal ability had been known throughout the
Department of Justice for some time. His appointment there was received
throughout the entire Department of Justice with great pride and hope
for success. And indeed, he had a highly successful record.
So I just want to say from my personal experience with him, having
served with him, having known him for many years, and having known his
reputation among those who worked closely with him, that he has all the
gifts and graces that are required to be a great Secretary of Homeland
Security.
I know they say: Well, he should turn over these documents. First,
let me say this: They are not his documents. These are documents of the
U.S. Department of Justice, memorandums they have. There is a
legitimate concern about Members of this Congress using every
confirmation we have to see what they can drag out so they can dig
through memoranda and documents that represent private conversations
within the executive branch.
What would we think in the Senate if the President got mad at us and
said: I want to see every document that was sent between you and your
legislative assistant on all these issues. We would not like that. We
would say: Well, we ought to have some right to talk to our staff and
communicate with one another and have private conversations and think
through these issues. If we tell our staff that everything they say is
going to be made public the next day or they cannot put something in a
memorandum because it may be on the front page of a newspaper the next
day, maybe that would diminish the natural quality of our
communication. In fact, it might inhibit good communication.
Back on February 7 of this year, the Department of Justice responded
to this request that was sent to Mr. Mueller of the FBI. It requested
``the unredacted version of a classified three-page FBI document, dated
May 10, 2004, regarding the interrogation of detainees at Guantanamo
Bay.'' The Justice Department's response was this. It was not Judge
Chertoff's response. He has been on the Federal bench as a Federal
judge, with a lifetime appointment, which he is willing to give up,
from the appellate court, a highly prestigious thing in itself, to
serve his country to be involved in protecting this country.
Indeed, when asked why he was willing to do that, he said: When asked
to serve in a way to protect my country, I could not say no.
They said this:
We have carefully considered your request, but concluded
that the unredacted document cannot be released in response
to your request because it contains information covered by
the Privacy Act, 5 United States Code 552a, as well as
deliberative process material.
That is not an insignificant matter. Deliberative process material
involves efforts by the executive branch to study an issue, to
deliberate on it and formulate a position.
The decision an agency makes is public, but everything they do in
deliberating that should not be produced willy-nilly just because
somebody in Congress wants to go on a fishing expedition.
It goes on to say:
We note, however, that the document is comprised of FBI
messages that were not sent by or addressed to Judge Chertoff
and it contains no reference to him by name or otherwise.
I don't think this is anything unusual and dramatic and unexpected
that this document should be rejected. I believe the Department of
Justice has considered it carefully and rendered an opinion that is
fair and just. I support them on it. I know there are certain times
documents need to be produced, but there are reasons why documents
should not be produced willy-nilly. The Department has considered this
carefully and rendered this opinion.
I admire Judge Michael Chertoff. He is a first-rate lawyer. He is a
man of incredible experience. As chief of the Criminal Division of the
Department of Justice, he had an opportunity to see firsthand the
difficulties and challenges of the war against terrorism. He performed
admirably in that position, as he has in every other position he has
held in our Government. He can make so much more money in private
practice. He could take a quiet position and stay as a lifetime-
appointed Federal circuit judge. But he turned that down to serve our
country. This Nation will benefit from his service. I am so glad the
committee voted to refer him out positively. I am confident he will be
confirmed.
I thank the Chair and yield the floor.
The PRESIDING OFFICER (Mr. Burr). The Senator from Maine.
Ms. COLLINS. Mr. President, I thank my colleague from Alabama for his
excellent statement. I appreciate the perspective he brings. Given his
own experience as a U.S. Attorney, he has a special appreciation for
that part of Judge Chertoff's career, and his endorsement will carry a
lot of weight with our colleagues.
How much time is remaining for the debate today?
The PRESIDING OFFICER. The Senator from Maine has 76 minutes
remaining. The minority is out of time.
Ms. COLLINS. Mr. President, I inquire of the Presiding Officer, the
76 minutes is for today's debate, as opposed to tomorrow's; correct?
The PRESIDING OFFICER. The Senator is correct.
Ms. COLLINS. Mr. President, I know of no further requests for time on
our side this evening so I am prepared to yield back, and I do, the 76
minutes.
The PRESIDING OFFICER. Time is yielded back.
Ms. COLLINS. I thank the Chair.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Ms. COLLINS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________