[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

[[Page S1315]]

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

[[Page S1316]]

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.

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