[Congressional Record Volume 151, Number 16 (Tuesday, February 15, 2005)]
[Senate]
[Pages S1366-S1369]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     NOMINATION OF MICHAEL CHERTOFF

  Mr. KENNEDY. Mr. President, I support the nomination of Mr. Chertoff 
to be Secretary of the Department of Homeland Security. He brings a 
wealth of experience to this position and that experience will serve 
him well, because the challenges facing this department in the post 9/
11 era continue to be immense. The agency can never afford to drop its 
guard for a moment. From protecting our borders to managing difficult 
immigration issues, Mr. Chertoff will be at the heart of many of the 
country's most complex security issues.
  Just under 2 years ago, the Department of Homeland Security was 
created in the largest overhaul of Federal agencies in more than half a 
century. It merged 185,000 Federal workers and 22 agencies in order to 
create a more national effort to protect ourselves in the wake of 
September 11.
  It is a job that requires overseeing the development of innovative 
methodologies and techniques to prevent and deter terrorist attacks. It 
requires rapid response to threats and hazards, and it requires 
effective information analysis and information sharing between agencies 
at all levels--Federal, State and local.
  The Secretary's job is to strengthen and maintain the security of our 
airports, seaports and land borders. But, equally important is the 
Secretary's ability to welcome the more than 500 million citizens, 
permanent residents, lawful visitors, students, and temporary workers 
who cross our borders each year.
  As Secretary, Mr. Chertoff will have a major role on immigration 
policy. One of the most important responsibilities of his position is 
to see that the immigration service and enforcement functions are well-
coordinated, and that the service functions are not given short shrift. 
Without strong leadership and the insistence on close coordination, the 
officials in the various immigration bureaus of the department are 
prone to issue conflicting policies and legal interpretations and 
create disarray in the department's mission.
  Questions have been raised about Mr. Chertoff's role in the Criminal 
Division of the Department of Justice in developing the investigative 
strategy that led to the department's detention of hundreds of 
immigrants after 9/11. According to the report of the department's 
Inspector General in June 2003, there were ``significant problems in 
the way the detainees were handled.'' There were also problems that 
included a failure to distinguish detainees suspected of ties to 
terrorism from detainees with no such connection. The Inspector General 
found there was inhumane treatment of detainees at Federal detention 
centers, unnecessarily prolonged detention resulting from the 
department's ``hold until cleared'' policy, secret detentions without 
formal charges, interference with access to counsel, and closed 
hearings.
  I met with Judge Chertoff and raised my concerns about these 
detainees and his role in formulating the policy. He recognized and 
understood that significant problems had occurred at the Justice 
Department in the treatment of the detainees and indicated a 
willingness to re-evaluate current policies and put in place protocols 
to prevent these abuses from recurring.
  Unfortunately, the administration has not been nearly as 
accommodating. It has refused to provide vital documents to the two 
Senate Committees charged with oversight over the Department of 
Homeland Security, the Homeland Security and Government Accountability 
Committee and the Judiciary Committee. Specifically, the administration 
continues to play hide and seek with documents that would shed light on 
the issues of torture and interrogation. In doing so, the 
administration persists in displaying a disturbing disregard for our 
constitutional role in Presidential nominations. By refusing to come 
clean and provide necessary documents, and by discouraging 
responsiveness and candor from its nominees on the issue of torture, 
the administration is only making the crisis worse, further 
embarrassing the Nation in the eyes of the world, and casting greater 
doubt on its commitment to the rule of law.
  As Senator Levin has emphasized, FBI e-mails state that while Mr. 
Chertoff headed the Criminal Division, discussions occurred between the 
FBI and the Justice Department about interrogation abuses. The e-mails 
indicate that FBI personnel were deeply concerned about the 
interrogation techniques being used at Guantanamo Bay by the Department 
of Defense and the FBI communicated their concerns directly to certain 
persons in the Criminal Division.
  The e-mails in their public form, however, were heavily redacted to 
avoid disclosing who spoke to whom. Although the e-mails were never 
provided by the administration to the Senate, we were able to obtain 
the documents in the same way as the general public obtained them, by 
surfing the web for the redacted documents as released in a Freedom of 
Information Act lawsuit.
  Senator Levin and Senator Lieberman asked for the unedited version of 
the e-mails in order to learn who in the FBI communicated the 
information and who in the Criminal Division received it. The request 
was denied, even though the information might well have been highly 
relevant

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to our consideration of Mr. Chertoff's nomination. It is beyond debate 
that our advice and consent function under the constitution includes 
inquiries into matters which may reflect on the nominee.
  Mr. Chertoff may have no knowledge about the e-mails or the FBI 
discussion, but part of our constitutional obligation is to obtain 
enough information to make an informed decision. The American people 
deserve to know whether we have done our constitutional job 
responsibly.
  Senator Levin has already spoken passionately about the stiff-arm 
that he and Senator Lieberman and their committee received from the 
Department of Justice as they sought to give meaning to the words 
``advice and consent.'' From the text of the redacted version, it's 
obvious that Mr. Chertoff should have been asked about the torture 
issues in the depth that the documents would have enabled. He was head 
of the Criminal Division during the relevant time period. Naturally, 
they asked to see the unredacted version of the document prior to any 
vote on the nomination.
  But the administration flatly refused to cooperate. The White House 
could easily have provided the documents only to Senators and to staff 
with appropriate security clearances. It did not. Instead, it concealed 
the full text of the e-mails in what amounts to an obvious coverup.
  In addition, Senator Leahy and I sent a letter to the Department of 
Justice on February 4, asking it to provide a separate department 
document which reportedly advised the CIA on the legality of specific 
interrogation techniques at a time when Mr. Chertoff was head of the 
Criminal Division. Again, the administration refused to provide it, 
claiming that its contents were classified, even though Senators are 
cleared to review classified material.
  Our problems with the administration on this nomination, however, 
pale in comparison with the failure of the Senate Republican majority 
to carry out its own constitutional responsibilities on this 
nomination. Instead of insisting on adequate answers to the questions 
raised by the documents, they have acquiesced in the administration's 
coverup and abdicated their own independent constitutional 
responsibility to provide ``advice and consent'' on Presidential 
nominations. They have allowed partisanship to trump the Constitution.
  In effect, the Republican Senate is acting as George Bush's poodle. 
The Founders of our country would be appalled at what has happened in 
this case. Obvious questions about this nomination have gone 
unanswered, and the Republican leadership of the Senate, instead of 
meeting its constitutional responsibility to seek answers, rolls over 
and shirks its duty to see that the Senate's consent on this nomination 
is an informed consent, not a blatantly defective consent.
  The Founders of our country did not create a parliamentary democracy. 
They created a democracy based on the fundamental principle of 
separation of powers with the Congress and the Judiciary acting as 
checks and balances on the power of the President We ignore that 
fundamental principle at our peril.
  A major issue in the 2006 congressional elections will clearly be the 
rubberstamp Congress. The refusal by the Republican Senate majority to 
exercise its constitutional responsibilities on this nomination is a 
flagrant example of that problem.
  An essential part of winning the war on terrorism and protecting the 
country for the future is protecting the ideals and values that America 
stands for here at home and around the world. That means standing up 
against torture. It means shedding light on an administration that 
prefers to act in darkness. It also means living up to our oath of 
office as Senators to protect and defend the Constitution.
  The checks and balances in the Constitution are essential to our 
democracy and a continuing source of our country's strength. They are 
not obstacles or inconveniences to be jettisoned in times of crisis. We 
owe it to those who come after us to be vigilant. Republicans and 
Democrats alike must insist that our constitutional obligations and 
prerogatives be respected. I hope very much that this blatant 
abdication of our constitutional responsibility will not be repeated.
  Regardless of the difficulties we have faced in obtaining these 
important documents, I am looking forward to working closely with Mr. 
Chertoff. His long history of government service and dedication to the 
public good are impressive. He has left the security of lifetime tenure 
on the federal bench to accept the challenge of steering the Department 
of Homeland Security through difficult waters. His willingness to 
respond to the President's call speaks well of his character.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Sununu). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DODD. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Burr). Without objection, it is so 
ordered.
  Mr. DODD. Mr. President, I ask unanimous consent to be able to 
proceed for 10 minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DODD. Mr. President, I rise this afternoon to discuss briefly the 
nomination of Judge Michael Chertoff, of New Jersey, to be Secretary of 
Homeland Security. I thank our colleagues on the Homeland Security and 
Governmental Affairs Committee, especially Chairwoman Susan Collins and 
my dear friend and colleague from Connecticut, Joseph Lieberman, for 
their close consideration of this nomination. The task of reviewing the 
nominee for Secretary of Homeland Security is a difficult one, and the 
committee did a fine job.
  I have reviewed the credentials of Judge Chertoff. They are 
impressive. In a legal career spanning over a quarter of a century, 
Judge Chertoff has shown a respectable dedication to public service. In 
my view, he has also demonstrated an ability effectively to manage a 
variety of security issues. For these reasons, I believe that Judge 
Chertoff is qualified and capable to serve as Secretary of the 
Department of Homeland Security. I plan on voting for his nomination.
  The job for which Judge Chertoff is being nominated is a challenging 
one. In this post 9/11 era, the Secretary of Homeland Security bears 
the primary responsibility of ensuring the safety of all Americans from 
threats that range from terrorist attacks to natural phenomena. In 
order to meet this responsibility, the Secretary must oversee 22 
separate agencies and 180,000 employees, all of whom carry out critical 
daily duties that include safeguarding our borders, securing our 
domestic infrastructure, and providing emergency disaster assistance. 
We all know that success in carrying out these duties will rest on the 
ability of the Secretary to coordinate and manage the resources at his 
disposal. They are huge.
  If confirmed, Judge Chertoff will unfortunately find that the current 
resources at his disposal are inadequate to ensure the operation of an 
effective Department of Homeland Security. I strongly agree with 
several of my colleagues on the Homeland Security and Government 
Affairs Committee who argue that more must be done to improve the 
Department's ability to identify security threats and to respond to 
these threats in an effective and appropriate manner.
  I agree that the Department of Homeland Security must be given 
adequate resources to address the plethora of security vulnerabilities 
that continue to plague our borders, airports, seaports, transportation 
systems, utility networks, and financial networks. I also agree that 
more work must be done to develop and implement a Government-wide 
strategy on homeland security activities, and to devise specific plans 
of action for specific threats. Furthermore, I strongly concur that 
more resources must be provided to our first responders--the millions 
of brave men and women who make up our front lines of defense at home.
  For any homeland security response to be fully effective and 
successful, our firefighters, law enforcement personnel, and emergency 
response teams require the most updated equipment and training to 
function. Regrettably, the administration's fiscal year 2006 budget 
deeply cuts these and other initiatives related to homeland security.

[[Page S1368]]

  All of these challenges that I mention demand immediate and long-term 
investments. While I applaud the work that has already been done to 
enhance our domestic security since 9/11, I remain, as many of my 
colleagues do, deeply disturbed by the administration's continued 
disinclination to invest adequately in these activities. As more gaps 
in our security are uncovered and exploited, and as more work is being 
done to enhance our capabilities in identifying closing these gaps, the 
Bush administration's policy has been to provide less resources, 
including unthinkable cuts of $615 million to State homeland security 
initiatives and our first responders. How can we fully expect to be 
safe as a nation if the very people who are committed to our safety are 
deprived of the vital resources that ensure our safety?
  In his testimony before the Homeland Security and Governmental 
Affairs Committee, Judge Chertoff indicated his determination to `` . . 
. improve our technology, strengthen our management practices, secure 
our borders and transportation systems, and most important, focus each 
and every day on keeping America safe from attacks.''
  I am encouraged by these remarks, and I hope Judge Chertoff's 
determination can allow him to meet the challenges, but he faces some 
awesome ones within the administration, if, in fact, these budget cut 
proposals are enacted into law.
  I am also encouraged by the remarks he made regarding the rights to 
due process that all Americans enjoy. In his testimony to the Homeland 
Security and Governmental Affairs Committee, Judge Chertoff said:

       I believe that we cannot live in liberty without security, 
     but we would not want to live in security without liberty.

  I believe this position is noteworthy, especially in light of the 
report issued by the Department of Justice inspector general in 2003 
that criticized the prolonged detention of hundreds of people--
primarily immigrants--of suspected ties to terrorism that were later 
deemed groundless. Judge Chertoff admitted that mistakes were made in 
the detention and treatment of these individuals--an admission rarely 
heard from this administration--and vowed to prevent them from 
happening again.
  The question for our country is not whether Judge Chertoff is the 
right man for the job--I believe he is--but whether Judge Chertoff will 
be given an impossible job by the President who nominated him. We 
surely cannot meet the needs of our homeland security apparatus on a 
tin-cup budget, just as we cannot meet the needs of our military, our 
schools, and our health care facilities.
  I find it troubling that--at the same time as it cuts support for 
police, firefighters, schoolchildren, and hospitals--this 
administration continues to view as sacrosanct the massive tax cuts 
worth $1.6 trillion that benefit only some of the most wealthy 
individuals in our Nation. Clearly, the President is not willing to ask 
any of these people--although I think many of them would be more than 
willing--to make the sacrifice for the well-being of our Nation. Yet, 
at the same time, the President is willing to tell firefighters, law 
enforcement personnel, and emergency response teams--people who risk 
their lives every day for our Nation--that not only are they going to 
get fewer resources each year, but they are required to do more with 
less. This severely skewed set of priorities is simply stunning. While 
it may be difficult for many of us to see this mismatch clearly today, 
I believe future historians who write about this period will harshly 
judge it as such.
  If confirmed, Judge Chertoff faces formidable and daunting 
challenges--challenges that must be overcome if we are to ensure the 
safety of this country and well-being of all Americans. I speak on 
behalf of all of my colleagues when I wish him the best in this very 
difficult endeavor he is willing to undertake.

  I am also here to discuss another issue raised by our colleague, 
Senator Carl Levin of Michigan. The issue concerns the repeated failure 
of this administration to provide the Senate with information necessary 
to carry out its constitutional responsibilities of giving advice and 
consent and conducting oversight of the executive branch.
  In a letter written by the Department of Justice to Senators 
Lieberman and Levin on February 7--just over a week ago--the Department 
of Justice claimed that an unredacted document related to the Chertoff 
nomination would not be provided to the Homeland Security and 
Governmental Affairs Committee because `` . . . it contains information 
covered by the Privacy Act . . . as well as deliberative process 
material.'' The assertion by the Department of Justice that their 
inability to comply rests on the Privacy Act is absurd and wholly 
unacceptable.
  As Senator Levin has stated--and I strongly agree with him in this--
the Privacy Act protects private individuals from having personal 
information released without their consent. In this case, the 
Department of Justice is using the Privacy Act to conceal the names of 
public officials who have engaged in Government activities at 
taxpayers' expense. That is precisely the kind of case in which 
Congress ought to have full knowledge of Government personnel and their 
activities in order to exercise its advice and consent responsibility 
fully.
  To deny the Senate information about what public officials are doing 
at taxpayers' expense is essentially to deny the American people their 
right to know what their Government is or is not doing in the name of 
its citizens. To deny the American people their right to know of their 
Government's actions is an abuse of not only the Privacy Act, it is an 
abuse of power, in my view.

  This may seem like a small matter to some, just one document. 
However, it should be noted that Senator Levin has precisely and 
carefully raised an issue that would be deeply disturbing to anyone who 
is committed to openness and accountability in our Government. I 
suggest to my colleagues that we are going to be seeing this issue 
arise over and over again if we as a body--all of us here--do not 
challenge it. I do not care what party is in the White House. If any 
administration starts making the case in the Executive Branch that the 
Privacy Act applies to Government personnel and Government documents 
that Congress may need to fulfill its Constitutional obligations, then 
a dangerous precedent will be set--one that I think we will deeply 
regret.
  This matter reflects an already persistent, almost obsessive 
preoccupation by the current administration with secrecy, thereby 
avoiding accountability to Congress and, of course, to the citizens we 
seek to represent.
  The examples of this preoccupation are almost too many to recite. One 
example that comes to mind is when Members of Congress and 
environmental organizations were unable to ascertain who--just the 
names--participated in the Vice President's energy task force, the 
group which laid the blueprints for the administration's current energy 
policy.
  Another example is the refusal of the recent nominee, now current 
Attorney General, to provide information to the Judiciary Committee 
pertaining to the development of his legal rationale for permitting 
torture. Of particular note in this case, when asked to provide 
information, the Attorney General said:

       I do not know what notes, memoranda, e-mails, or other 
     documents others may have about these meetings, nor have I 
     conducted a search.

  The unwillingness even to search for information requested by 
Congress epitomizes a certain official arrogance that sets a dangerous 
precedent because, when carried to its conclusion, it impairs and even 
impedes most congressional oversight. Government employees are named in 
countless documents that Congress needs in order to carry out its 
constitutionally mandated responsibilities and to shine the light where 
appropriate for the people of this country on the actions of our 
Government.

  In closing, I do not believe Judge Chertoff is an architect of the 
policy to deny the public their right to know what their Government is 
doing. That point needs to be made crystal clear. If I thought that 
were the case, I would not support this nominee. I think Judge Chertoff 
has made clear how he views these matters. But Senator Levin has raised 
a very important issue that transcends this nomination and reaches 
every agency and office in this government. It is the issue of 
preserving the openness, transparency,

[[Page S1369]]

and accountability of our democratic government. I thank Senator Levin 
who, once again, during his service here, has proved how valuable 
attention to detail is. I commend my colleague for raising it.
  I thank the indulgence of the Chair. I yield the floor.

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