[Congressional Record Volume 152, Number 117 (Tuesday, September 19, 2006)]
[Senate]
[Pages S9699-S9714]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


   NOMINATION OF ALICE S. FISHER TO BE AN ASSISTANT ATTORNEY GENERAL

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to consider the following nomination, 
which the clerk will report.
  The assistant legislative clerk read the nomination of Alice S. 
Fisher, of Virginia, to be an Assistant Attorney General.
  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. McCONNELL. Mr. President, I rise today in strong support of a 
person from my hometown of Louisville, KY, Alice S. Fisher, who has 
been nominated to be Assistant Attorney General for the Criminal 
Division at the Department of Justice.
  As I remarked at her confirmation hearing last year, Ms. Fisher is a 
battle-tested veteran of the war on terror. For the last year, she has 
again been on the front lines of that struggle.
  She has, really, an outstanding and impressive record. She first 
joined the Justice Department in July of 2001 as a Deputy Assistant 
Attorney General in the Criminal Division. She was placed in charge of 
its counterterrorism efforts. Just 2 months later came September 11.
  After that horrific day, our Government responded forcefully and 
quickly. Ms. Fisher's role was absolutely vital to that fight. She was 
responsible for coordinating all matters related to September 11 
investigations and prosecutions. In addition, she headed up the 
implementation of the USA PATRIOT Act.
  As a Deputy Assistant Attorney General, Ms. Fisher also headed up the 
Department's efforts to combat corporate fraud just when the collapse 
of Enron and other corporate scandals were front-page news. She also 
helped draft the Sarbanes-Oxley Act and worked closely with the 
Securities and Exchange Commission.
  In July of 2003, Ms. Fisher left the Department to become a partner 
at Latham and Watkins, where she concentrated on litigation and white-
collar crime.
  Last spring, Alice Fisher again answered the call to join her country 
by rejoining the front lines on the war against terror when the 
President nominated her to head the Criminal Division.
  As I mentioned earlier, the Criminal Division has many important 
responsibilities, among them national security prosecutions, both 
counterterrorism and counterintelligence, combatting gang violence and 
organized crime, prosecuting corporate fraud and identity theft, going 
after public corruption and protecting kids from child pornography.
  For the last year Ms. Fisher has impressively led the Department in 
all facets of its operations while serving as a recess appointment. In 
this capacity, she has further demonstrated her expertise, 
determination and integrity. Alice Fisher is a proven leader.
  Under her tenure, the counterterrorism section has convicted numerous 
terrorists, including Zacarias Moussaoui, the 20th September 11 
hijacker. She created a new gang squad of experienced prosecutors to 
combat national and international gangs such as MS-13. She supervised 
the Enron task force resulting in the convictions of top executives Ken 
Lay and Jeffrey Skilling. She heads the Katrina Fraud Task Force which 
combats all fraud and corruption resulting from this national disaster. 
As of the end of July, the task force has charged 371 defendants. Under 
her leadership the Public Integrity Section has prosecuted major public 
corruption cases.
  In addition, since the beginning of her tenure, the Department has 
aggressively prosecuted crimes against children. It is now coordinating 
18 national child pornography operations.
  Ms. Fisher was born and raised in my hometown of Louisville, KY, and 
is part of a close-knit family. Her father ran a chemical plant. Her 
mother worked the night shift as a nurse. She still has a lot of family 
back home in Louisville.
  She earned her B.A. degree from Vanderbilt University and her law 
degree from Catholic University. Her husband, Clint, also serves our 
Nation as the Director of Aviation Policy for TSA. Last, but certainly 
not least, she is the mother of two boys, Matthew, age nine, and Luke, 
age five.
  In a relatively short time, Alice Fisher has accomplished a great 
deal. She served her country after the September 11 attacks. She rose 
to become a partner in one of America's most prestigious law firms, and 
she then chose to forego a more lucrative career in private practice to 
come back in and serve her country again.
  Alice Fisher knows that every day she works on behalf of her country 
she is working to build a stronger and safer America for her two 
children and for all of ours. Thanks to her, America is a safer place 
than it was on September 11, 2001.
  A man who held the job for which Ms. Fisher has been nominated is her 
old boss, Michael Chertoff, a pretty good lawyer in his own right. 
Alice earned praise when he called her ``one of the best lawyers I've 
seen in my entire career.''
  America needs Alice Fisher to be confirmed as the next Assistant 
Attorney General of the Criminal Division. I look forward to her 
confirmation. She is a wonderful person, an accomplished lawyer, and a 
Kentuckian of whom all America can be proud.
  She has support from a number of groups I will make reference to, 
including the support of the Fraternal Order of Police, the Federal Law 
Enforcement Officers Association and the National District Attorneys 
Association. I ask unanimous consent those letters of endorsement be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                 National District


                                        Attorneys Association,

                                  Alexandria, VA, August 17, 2006.
     Hon. Arlen Specter,
     Chairman Committee on the Judiciary,
     Washington, DC.
     Hon. Patrick J. Leahy,
     Ranking Member, Committee on the Judiciary,
     Washington, DC.
       Dear Chairman Specter and Senator Leahy: I want to most 
     strongly support the nomination of Alice Fisher as the 
     Assistant Deputy Attorney General of the United States in 
     charge of the Criminal Division and urge her speedy 
     confirmation.
       Ms. Fisher served her country well as the Deputy Assistant 
     General in the Criminal Division during a unique and tragic 
     time in this nation's history. During the period following 
     September 11, 2001, Ms. Fisher was responsible for managing 
     the Counter-Terrorism Section and worked on the development 
     of policy issues on criminal law enforcement and national 
     security.
       Since her appointment as Assistant Attorney General in the 
     Criminal Division she has been responsible for the Department 
     of Justice's response to Hurricane Katrina and the aftermath 
     of widespread fraud; the development of a strategic plan to 
     address the burgeoning identity theft problem that confronts 
     this nation; child sexual exploitation issues; corporate 
     fraud; and public corruption issues.
       Prior to Ms. Fisher's career in the Department of Justice 
     she also served Congress in her capacity as Deputy Special 
     Counsel to the United States Senate Special Committee to 
     investigate the Whitewater Development and Related Matters.
       Given Ms. Fisher's experience in both the legislative and 
     executive branches of government and her exhibited level of 
     commitment to the Department of Justice I can think of no one 
     who would bring more ability to this position than she would.

[[Page S9700]]

       If you have any questions or concerns in regard to my 
     support of Ms. Fisher please do not hesitate to contact me.
           Sincerely,
                                                Thomas J. Charron,
     Executive Director.
                                  ____

                                            Grand Lodge, Fraternal


                                              Order of Police,

                                   Washington, DC, August 1, 2006.
     Hon. Arlen Specter,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
     Hon. Patrick J. Leahy,
     Ranking Member, Committee to the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Mr. Chairman and Senator Leahy: I am writing on behalf 
     of the membership of the Fraternal Order of Police to advise 
     you of our support for Alice S. Fisher to be continued as the 
     next Assistant Attorney General for the Criminal Division at 
     the U.S. Department of Justice.
       For more than one year, Ms. Fisher has served as Assistant 
     Attorney General for the Criminal Division as a recess 
     appointment. She has diligently served in this role and has 
     coordinated with law enforcement on a variety of issues, 
     including antiterrorism prosecutions, public corruption 
     cases, and child sex exploitation cases. Prior to this, Ms. 
     Fisher served as Deputy Assistant Attorney General of the 
     Criminal Division at the U.S. Department of Justice and was 
     responsible for managing both the Counterterrorism and Fraud 
     Sections at the Department. During her tenure, she was 
     responsible for coordinating the Department's national 
     counter-terrorism activities, including all matters relating 
     to September 11th investigations and prosecutions, terrorist 
     financing investigations, and the implementation of the USA 
     PATRIOT Act.
       Her management of the Fraud Section included supervising 
     many investigations into corporate fraud, particularly in the 
     areas of securities, accounting, and health care. She worked 
     on a variety of policy matters relating to identity theft and 
     testified before the Senate Special Committee on Aging about 
     the impact of these crimes on our nation's senior citizens.
       Currently Ms. Fisher's management of the Innocence Lost 
     Initiative, a cooperative effort to prevent and prosecute 
     child prostitution between the FBI, the Criminal Division's 
     Child Exploitation and Obscenity Section and the National 
     Center for Missing and Exploited Children, has led to 188 
     open investigations, 547 arrests, 79 complaints, 105 
     indictments, and 80 convictions in both the Federal and State 
     systems.
       Ms. Fisher's experience as a litigator and policy-maker, as 
     well as her strong, positive relationship with the law 
     enforcement community, makes her an excellent choice to lead 
     the Criminal Division. The F.O.P. has no doubt that she will 
     continue to be an outstanding Assistant Attorney General, and 
     we urge the Judiciary Committee to expeditiously approve her 
     nomination. If I can provide any further recommendations for 
     Ms. Fisher, please do not hesitate to contact me or Executive 
     Director Jim Pasco in my Washington office.
           Sincerely,
                                                 Chuck Canterbury,
     National President.
                                  ____

                                           Federal Law Enforcement


                                         Officers Association,

                                  Lewisberry, PA, August 31, 2006.
     Hon. Harry Reid,
     U.S. Senate,
     Washington, DC.
       Dear Senator Reid: On behalf of the 25,000 members of the 
     Federal Law Enforcement Officers Association (FLEOA), I am 
     writing to you in support of the nomination of Alice S. 
     Fisher for the position of Assistant Attorney General of the 
     Criminal Division of the Department of Justice. Since her 
     nomination easily cleared the Senate Judiciary Committee in 
     May, we are now appealing to you in your leadership role as 
     the Senate Minority Leader to intervene and help bring this 
     important matter to the floor of the Senate for a full vote.
       It our understanding that this process has stalled due to 
     the unfortunate invocation of partisan politics. As the 
     largest non partisan professional federal law enforcement 
     association, FLEOA would like to see Ms. Fisher's nomination 
     evaluated based on its merit. To that end, the membership of 
     FLEOA is convinced that Ms. Fisher's impressive credentials 
     would result in her being confirmed should the matter reach 
     the floor of the Senate.
       Why is this matter important to the membership of FLEOA? 
     Several of our members have had the distinct pleasure of 
     working with Ms. Fisher, or have served on one of the many 
     task forces she oversees. Two notable examples are the 
     Katrina Fraud Task Force and the President's Identity Theft 
     Task Force. When you ask one our members about their 
     experience working with Ms. Fisher, the typical response is 
     an enthusiastic thumbs-up. Ms. Fisher has earned the 
     reputation as a tireless proponent of federal law 
     enforcement, and she commands the respect of our membership.
       In her capacity as the Deputy Attorney General, Ms. Fisher 
     did an outstanding job leading the Enron Task Force. Again, 
     several FLEOA members who were involved in the Enron 
     investigation have nothing but the highest praise for Ms. 
     Fisher. A logical person that objectively reviews Ms. 
     Fisher's long resume of distinguished accomplishments can 
     only reach one conclusion: her confirmation as the Assistant 
     Attorney General for the Criminal Division will significantly 
     strengthen the law enforcement component of our nation.
       While the threat of domestic terrorist attacks continues to 
     escalate, time does not take pause to accommodate indecision. 
     If we sit back and allow Ms. Fisher's recess appointment to 
     expire, then we become complicit in weakening the Department 
     of Justice. This is unacceptable to the membership of FLEOA.
       We have reached a pivotal point in our government's history 
     where it has become increasingly difficult to recruit and 
     retain the best and the brightest minds to assume leadership 
     positions. If we don't make every effort to confirm the 
     nomination of Ms. Fisher, then who do we expect to get to 
     fill these important positions? More importantly, who will 
     the Attorney General have to turn to for assistance in 
     initiating and overseeing numerous federal law enforcement 
     task forces?
       Senator Reid, the membership of FLEOA hopes that you will 
     consider the nomination of Ms. Fisher a priority matter. We 
     are prepared to provide you with additional recommendations 
     and anecdotal support if necessary. Please don't hesitate to 
     contact me or Executive Vice President Jon Adler if we can be 
     of further assistance. On behalf of the FLEOA membership, I 
     thank you for your leadership and your service to our great 
     country.
           Sincerely,
                                                       Art Gordon,
                                               National President.

  Mr. McCONNELL. 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. LEAHY. 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. LEAHY. Mr. President, what is the pending question?
  The PRESIDING OFFICER. The pending question is the nomination of 
Alice Fisher. The Senator from Vermont has 30 minutes.
  Mr. LEAHY. Mr. President, I will use part of that time.
  Today we are considering the nomination of Alice Fisher for the 
position of Assistant Attorney General of the Criminal Division of the 
U.S. Department of Justice. We have less than 2 weeks left in the 
legislative session before we recess for the elections. The Republican 
leadership has once again delayed doing the work of the American people 
so they can consider a nominee about whom many questions remain.
  We are being required to consider this nomination despite unanswered 
questions regarding her role in the administration's controversial, 
questionable detainee treatment policies. Of course, on these 
questions, as on so many other matters involving torture and detainees 
at Guantanamo, the administration has refused to provide Congress with 
the information it has sought.
  As I said 2 weeks ago when the President re-nominated five extremely 
controversial choices for lifetime positions on the Nation's highest 
courts, I continue to be disappointed in the misguided priorities of 
the Bush-Cheney administration and, in fact, the rubberstamp Senate 
Republican leadership. I really think all Americans--Republicans and 
Democrats--would be better served if we used the few remaining weeks of 
this legislative session to address vital, unfinished business, such as 
the war in Iraq. That might be something the American people would 
really like to see us debate, the war in Iraq. We haven't had a real 
debate on it since we saw that huge sign a few years ago behind the 
President that said: ``Mission Accomplished.'' He was dressed up like 
Tom Cruise in ``Top Gun'' and put up the sign that said: ``Mission 
Accomplished.'' I guess they decided it was all over; why debate it?
  It would be nice if we enacted a Federal budget. The law says--the 
law says, and I say this to my law-and-order friends who control the 
agenda, my Republican friends who control the agenda--the law says we 
have to have a budget passed by April. We didn't do it in April or May 
or June or July or August, now September. We are all law and order 
around here, but apparently we think we don't have to follow the law.
  Of course, we are supposed to pass the 11 remaining required 
appropriations bills by the end of this month. It doesn't look like 
that is going to happen.

[[Page S9701]]

  We talked about enacting lobbying reform and ethics legislation. I 
remember the Republican leadership having a wonderful press conference, 
just absolutely wonderful--just touched by it--especially knowing they 
would never bring up the legislation.
  It would be nice to address the skyrocketing cost of fuel. I don't 
think any one of us goes home where we don't hear about the cost of 
gas, but we don't do anything about that.
  People talk to me about health care. We don't do anything about that, 
either.
  How about a bipartisan, comprehensive immigration reform bill? I 
stood outside the White House and praised President Bush for his 
support of a comprehensive immigration reform bill. He told several of 
us in a long meeting--and I think he was passionate about it--that we 
needed to have one. When a 30-vehicle caravan of Vice President 
Cheney's with sirens wailing came up to the Hill today, I don't think 
they were saying: Let's pass a comprehensive immigration reform bill.
  But what we can do is controversial nominations--not the items the 
law requires us to do but the things the fund-raising letters require.
  In this case, we have an interesting nominee to be the head of the 
Criminal Division for the Justice Department. She has never prosecuted 
a case. She has minimal trial experience. But she is going to be the 
head of the Criminal Division of the Justice Department. Her career has 
been spent almost entirely in private practice.
  She is a longtime protegee of Homeland Security Secretary Michael 
Chertoff, who was in overall charge of cleaning up after Katrina, which 
I know will happen some day. So after being his protegee, she is 
rewarded with the post of heading the Criminal Division of the Justice 
Department.
  I did not block her from coming out of the Judiciary Committee. We 
had a voice vote on June 16 of last year. But then concerns arose about 
her role, while Mr. Chertoff's deputy, in meetings in which 
controversial interrogation techniques used on detainees at the Naval 
Facility in Guantanamo Bay, Cuba, were discussed and decided upon with 
the Department of Defense. There remain questions about whether Ms. 
Fisher attended those meetings and her role in determining how these 
detainees would be questioned and treated. What did she know? When did 
she know it? What did she do about it? They are simple questions: What 
did she know? When did she know it? And what did she do about it? None 
of that has been answered.

  This administration has yet to come clean to the Congress or to the 
American people in connection with the secret legal justifications it 
has generated and practices it employs. They can't dismiss these 
outrageous practices at Guantanamo as the actions of a few ``bad 
apples''. With the Senate adoption of the antitorture amendment last 
year, the recent adoption of the Army Field Manual, and 5 years of the 
Bush-Cheney administration's resistance to the rule of law and 
resistance to the U.S. military abiding by its Geneva obligations, that 
may be finally coming to a close. Of course, we can't even be sure of 
that, given that despite the great fanfare surrounding the law against 
torture, we had a Presidential Signing Statement that undermined 
enactment of the antitorture law and basically said the President and 
those he designates can work outside the law.
  Now, I remain troubled by the nominee's lack of prosecutorial trial 
experience. There have been people who have held this position--Mr. 
Chertoff, James Robinson, William Weld--who were seasoned Federal 
prosecutors. In her case, she would be supervising people who have to 
prosecute and make judgment calls on very complex cases. They would 
have to decide whether to go forward. She will be the one to finally 
sign off on that, but she has never prosecuted a case. It is sort of 
like saying you are going to be the head brain surgeon; however, you 
have never really been in an operating room, you have never seen a 
brain, but there you go.
  Even more troubling, perhaps, is the fact that there are so few 
senior officials at the Justice Department who do have experience in 
criminal prosecution. I agree with the chairman of the Judiciary 
Committee, Senator Specter, who has noted: The lack of criminal 
experience at the top of the Department ``does concern me.'' He said 
that while there were lots of ``first-class professionals'' throughout 
the ranks of prosecutors, ``there are tough judgment calls that have to 
be made at the top, and it's good to have some experience on what 
criminal intent means when you have to make those decisions.''
  Both Senator Specter and I are former prosecutors. We understand 
that.
  I also share the concern of the distinguished senior Senator from 
Michigan, Senator Levin, with the uncertainty about Ms. Fisher's role 
as Mr. Chertoff's deputy in the development and use of controversial 
detainee interrogation techniques. Despite repeated requests from 
Senator Levin, who is, after all, the ranking member and a past 
chairman of the Senate Armed Services Committee, joined by others, the 
Justice Department refused to satisfy Senators on these points. As a 
result, concerns remain whether Ms. Fisher had knowledge of the abuse 
of detainees at Guantanamo and what, if any, action she took. The 
rubberstamp Republican leadership of this Congress has gone along with 
the administration and said: You can't have the information.
  Sometimes holding this stuff back creates far more of a problem than 
just telling the truth out front. If FBI Director Mueller had been more 
forthcoming with me at, or after, the May 2004 hearing in which I asked 
him what the FBI had observed at Guantanamo, we could have gotten to a 
detention and interrogation policy befitting the United States years 
sooner than we have. But rather than answer a simple, clear question, 
it is easier to stonewall.
  If the administration had been forthcoming with Congress in October 
of 2001 when it decided secretly to flout the FISA law and conduct 
warrantless wiretaps of Americans, we could have avoided 5 years of 
lawbreaking, and we could have had a more effective surveillance 
program targeted at terrorists, not Americans.
  In other words, every time they cover up, things get worse. Just tell 
the truth, be open, and things get better. If the administration had 
answered me when I asked over and over about the Convention Against 
Torture and about rendition, we could have come to grips with those 
matters before they degenerated, as they have, into what has become an 
international embarrassment for the United States. Former Secretary of 
State Colin Powell, a former Chairman of the Joint Chiefs of Staff, now 
acknowledges it threatens our moral authority on the war on terrorism. 
Again, if the administration had honestly answered years ago, we could 
have cleared it up, and we wouldn't be in a case where the rest of the 
world looks at us now and asks us what we are doing.
  Just today, a Canadian commission, having studied it, reports that a 
Canadian citizen, Maher Arar, who was returning from vacation--a 
Canadian citizen, a Canadian citizen--was arrested by American 
authorities at JFK Airport in New York. He was held for 12 days, not 
allowed to speak to a lawyer or a Canadian consular official, and he 
was then turned over not to Canada, which was 200 miles away, but to 
Syria where he was tortured, thousands of miles away.
  So here is what the United States is faced with. We seized a person 
from another country in New York, we don't allow him to speak to a 
lawyer, and we don't allow him to speak with his consular official from 
his own embassy. We don't send him back to his country, where if he is 
wanted for something they could arrest him--it is, after all, about a 
5-hour drive to the Canadian border--instead we ship him thousands of 
miles away to be tortured in a Syrian prison, incidentally done without 
the knowledge of the Canadians.
  Now, I know how Senator Levin must feel because all of my efforts to 
get to the bottom of this case have also been brushed aside by the 
Bush-Cheney administration. Over the years, I have yet to get a 
satisfactory explanation. The Canadian commission, though, found he had 
no ties to terrorists. He was arrested on bad intelligence, and his 
forced confessions in Syria reflected torture, not the truth. We know 
if you torture somebody long enough, they will say anything you want.

[[Page S9702]]

  The United States should acknowledge what it did, but instead, it 
uses legal maneuvers to thwart every effort to get to the facts and be 
accountable for its mistakes. No matter how egregious the mistake, no 
matter how many international laws are broken, nobody ever admits a 
mistake around here.

  Now, I certainly understand, if somebody votes against this 
nomination, it may be a vote not so much against Ms. Fisher, but a vote 
against this administration's stonewalling and going it alone to the 
detriment of the interest of the United States and the safety, 
security, and rights of all Americans.
  Last month, our Nation commemorated the one-year anniversary of 
Hurricane Katrina and the devastation it wrought. We haven't done much 
to clean it up at Homeland Security, but it is the one-year 
anniversary. Last week, our Nation commemorated the fifth anniversary 
of the deadliest terrorist attack on American soil in our Nation's 
history. These twin tragedies--one caused by nature, one caused by 
terrorists--serve as somber, but ever present, reminders that our 
Nation is still not secure. One year after this administration's 
appalling foot-dragging, incompetent, and wasteful response to 
Hurricane Katrina, our Nation still has citizens on the Gulf Coast who 
do not have homes to return to or jobs waiting when they get there. 
Five years after 9/11, our country still lacks an effective 
international strategy to protect the American people from terrorism. 
We need to refocus our efforts and our resources where they belong: on 
providing real security for the American people. America can do better. 
The full agenda before us as we enter the final weeks of this 
legislative session reflects how, even though one party controls the 
White House, the House of Representatives, and the Senate--even though 
we have a one-party Government--these Republicans have failed, at our 
Nation's most pressing hour, to provide this country with leadership.
  Mr. President, I see the distinguished Senator from Texas on the 
Senate floor. I reserve the remainder of my time, and I yield the 
floor.
  The PRESIDING OFFICER. The Senator from Texas is recognized.
  Mr. CORNYN. Mr. President, I come to the floor to speak in favor of 
the confirmation of Alice Fisher, the President's nominee to be 
Assistant Attorney General in charge of the Criminal Division at the 
U.S. Department of Justice. I am glad to say that Ms. Fisher's 
confirmation will finally overcome the unnecessary obstruction that she 
faces in this Congress which has forced the President to reassess her 
appointment.
  Ms. Fisher is an outstanding nominee for this position. In addition 
to her credentials, she has substantial previous public service 
experience, particularly in the Criminal Division during a difficult 
time following the terrorist attacks of September 11. That experience 
will serve her well as Assistant Attorney General for the Criminal 
Division.
  The Criminal Division is one of the most important jobs of the 
Department of Justice. It handles a variety of issues, including 
counterterrorism, violent crime, corporate fraud, and crimes against 
children. The Criminal Division's importance to the success of 
America's fight in the war against terror makes it all the more 
important that the Senate end this obstruction and make Ms. Fisher's 
appointment permanent.
  Beginning with her service as Deputy Special Counsel to the U.S. 
Senate's Special Committee to Investigate Whitewater, Ms. Fisher has 
exemplified the attributes needed to lead an organization with a 
mission vital and important, obviously, to the Department of Justice's 
Criminal Division. Prior to her latest Government service, she was a 
litigation partner for 5 years at the DC office of Latham & Watkins, 
one of the premier law firms in the country. She takes from that 
experience a respect and deep knowledge of the law.
  Since her recess appointment in November of 2005, necessitated 
because of holds on her nomination, Ms. Fisher has served as Assistant 
Attorney General with distinction, honor, and success. She immediately 
refocused the division's mission in a way that reflects the priorities 
of the administration. For example, under Ms. Fisher, the Criminal 
Division has made impressive headway in supporting the Nation's 
national security mission, in combating violent crime, including gang 
violence, and protecting our children from exploitation on the Internet 
and elsewhere.
  What is troubling about the debate today on this nomination is that 
we are having a debate about a nominee who so clearly deserves 
confirmation. What is troubling about today's debate is that it is 
reflective of the continued obstruction of nominees by Democrats in the 
U.S. Senate. This obstruction has not only affected judicial 
nominations, which is perhaps better known, but also the confirmation 
of important executive branch nominees with significant national 
security responsibilities. Ms. Fisher oversees vital counterterrorism 
and counterespionage divisions. But because her nomination has been 
blocked, these critical components have operated without a Senate-
confirmed supervisor for more than a year.
  Consider the constant refrain from our colleagues on the other side 
of the aisle that this Republican-led Congress is not doing everything 
it can to protect America's national security. Beyond Ms. Fisher's 
nomination, this message stands in stark contrast with the democrats' 
record of obstruction on other key national security posts.
  Perhaps the most inexcusable obstruction pertains to the nomination 
of Kenneth Wainstein, who would head the newly created National 
Security Division. Mr. Wainstein's confirmation would fulfill one of 
the key recommendations of the WMD Commission, the Weapons of Mass 
Destruction Commission. It was the WMD Commission that recommended the 
reorganization of intelligence-gathering components within the 
Department of Justice. Mr. Wainstein has broad-based, bi-partisan 
support, yet he inexplicably still faces a Democrat filibuster-by-hold.

  We cannot wait any longer for Democrats to release their hold on Mr. 
Wainstein. In the 5 years since the attacks of September 11, the 
Federal Government has taken a number of steps to reorganize and 
improve its resources to better fight terrorism. Our terrorist enemies 
are always changing and adapting, and so must we--if we are to keep the 
upper hand in the war on terror.
  Some 15 months ago, the WMD Commission recognized that improvements 
should be made to the Department of Justice's national security 
apparatus. They recommended a reorganization of the Department and the 
creation of a new National Security Division--which would bring 
together under one umbrella all the national security components of the 
DOJ.
  The National Security Division that Mr. Wainstein would oversee is 
critically important to the Department--and to America's national 
security. It will integrate the key national security components--the 
Counterterrorism and Counterespionage Sections of the Criminal Division 
and the Office of Intelligence Policy and Review, which has the lead 
role in implementing the Foreign Intelligence Surveillance Act, FISA--
under the leadership of a single Assistant Attorney General. Bringing 
together these mission-critical entities will enhance our ability to 
fulfill our top priority of preventing, disrupting and defeating 
terrorist acts before they occur.

  The President approved the WMD Commission's recommendation more than 
a year ago. And Congress embraced the concept and fully authorized the 
National Security Division as part of the USA PATRIOT Act 
reauthorization. Congress has also approved a reprogramming request 
submitted by the DOJ and office space has been dedicated and 
renovated--but unfortunately, it remains vacant. It remains vacant 
because holds have been placed on the nomination and we have seen a 
filibuster-by-hold. The Department has done everything it can until 
this Senate confirms Mr. Wainstein. Obstruction from the other side of 
the aisle, Mr. President, is impeding efforts to improve national 
security. Long-term planning is being delayed and uncertainty is 
beginning to affect morale. The Department of Justice needs Mr. 
Wainstein on board, to provide leadership, vision and guidance. Again, 
like Ms. Fisher's stalled nomination, Democrat obstruction is impeding 
this effort to improve national security.

[[Page S9703]]

  But Ms. Fisher and Mr. Wainstein are not the only nominees to face 
obstruction. Just looking back to a few others who were slotted to fill 
positions critical to our Nation's war on terror have likewise been 
filibustered. For instance, the current Deputy Secretary of Defense, 
Gordon England, was filibustered before the President was forced to 
recess-appoint him. He was eventually confirmed. Undersecretary of 
Defense for Policy, Eric Edelman, was filibustered, recess-appointed, 
and finally confirmed; and Office of the Director of National 
Intelligence General Counsel, Ben Powell, likewise was filibustered, 
recess-appointed and finally confirmed.

  This obstruction is not limited solely to nominations. Who can forget 
how proud Democrats were when they celebrated killing the 
reauthorization of the PATRIOT Act, one of the most important anti-
terror tools for our front-line law enforcement and intelligence 
agents. Democrats also complain that we are not doing all we can to 
secure the safety of our citizens, and then promote hyperbole and 
hysteria about the Terrorist Surveillance Program, which is well within 
the President's authority during wartime, to conduct critical 
battlefield intelligence-gathering against foreign threats to America.

  I think the American people see through this Democrat obstruction. 
But nominations to critical national security positions should not 
face partisan road blocks. I recently read a newspaper report on the 
nomination of Mr. Wainstein. It reported that the office was ready, the 
phone lines up and the computers humming, waiting on him to start. But, 
his nomination is being blocked on reasons unrelated to him. This 
obstruction must stop.

  I am glad Ms. Fisher will be confirmed later today and I hope that 
the Senate will be able to move on to Mr. Wainstein's nomination 
quickly so that we do not leave critical national security offices 
unfilled.
  In closing, I am pleased that President Bush has nominated Ms. Fisher 
to serve as Assistant Attorney General and I look forward to her 
continued service in that post. I ask my colleagues to support her 
nomination.
  The PRESIDING OFFICER (Mr. Thune). The Senator from Michigan.
  Mr. LEVIN. Mr. President, I listened to the Senator from Texas, but I 
do not want to debate the Wainstein nomination today because we have 
the Fisher nomination in front of us. I would just say one thing in 
response; that is, the delays in his confirmation vote are directly the 
result of the administration's obstruction of Senate requests for very 
relevant documents. Any delays can be placed right at the feet of the 
administration that has stonewalled requests for information. I hope 
the Senator from Texas and other Republicans would join in legitimate 
requests for relevant information. The documents that are being sought 
are directly related to Mr. Wainstein and his role in the FBI as 
General Counsel from mid-2002 to mid-2003 and when he was the Chief of 
Staff for the FBI Director from mid-2003 to 2004.
  So the delays here are directly attributable to the obstruction and 
the stonewalling of the administration in response to legitimate 
requests for documents. These impediments to votes can be easily 
removed by simply having the committee chairman join in the request for 
these documents, but that has not been forthcoming.
  Today the issue is Ms. Alice Fisher. It is another example where 
requests for documents and for information have been denied. These are 
legitimate requests which directly relate to Ms. Fisher and to whether 
she should be confirmed. I want to get into the history of this matter 
in some detail. I yield myself 45 minutes for that purpose.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEVIN. Mr. President, today the issue of detainee abuse at 
Guantanamo Bay is very much on our minds and in the headlines as we 
debate how we will treat detainees in the future. In this context, the 
nomination of Ms. Alice Fisher for the position of Assistant Attorney 
General for the Criminal Division at the Department of Justice is not 
just a routine appointment. Alice Fisher was the deputy at the Criminal 
Division while the abuse at Guantanamo was occurring and while concerns 
about interrogation tactics were being raised within the Criminal 
Division at that same time. We are being asked to confirm Ms. Fisher 
today with unanswered relevant questions about any knowledge she may 
have had or actions she might have taken relative to those 
interrogation tactics.
  I want to share with my colleagues longstanding unanswered questions 
regarding Ms. Fisher's nomination to this position. The constitutional 
duty of the Senate to provide its advice and consent to nominations is 
a solemn one. Instead of respecting this constitutional duty, the 
administration has consistently sought to thwart it by denying us 
relevant information.
  The administration has put up barrier after barrier, hurdle after 
hurdle to efforts to get legitimate information that bears on Ms. 
Fisher's fitness to serve in this important position. Why the 
administration has stonewalled for so long instead of answering 
questions and providing information can only be speculated by me. Is it 
because it is part of an effort to prevent information about 
interrogation tactics from being provided to Congress, or does it 
relate directly to Alice Fisher? I don't know the answer, but the fact 
of the stonewalling is undeniable. It is part of a pattern of secrecy 
that this administration has engaged in in so many areas and so many 
ways.
  The information I have sought relates to what Ms. Fisher knew about 
aggressive and abusive interrogation techniques in use at Guantanamo 
Bay, Cuba, during the time that Ms. Fisher served as deputy head of the 
Criminal Division in the Justice Department from July 2001 to July 
2003. From publicly released FBI documents, we have learned that FBI 
personnel raised serious concerns about these DOD interrogation tactics 
at weekly meetings between FBI and Department of Justice Criminal 
Division officials. I have sought to find out what Ms. Fisher knew 
about these FBI concerns over aggressive DOD methods; what, if 
anything, was reported to Ms. Fisher; and what steps, if any, she took 
in response.
  If Ms. Fisher knew of aggressive interrogation techniques at 
Guantanamo and did nothing about it, or she knew about them but has 
denied knowing, then I would be deeply troubled. The administration has 
repeatedly obstructed efforts to get this information, information 
which is, in my judgment, relevant to Ms. Fisher's suitability for the 
position to which she is nominated.
  The administration has literally and figuratively covered up the 
Guantanamo abuses. This refusal by the administration to provide 
relevant information is part of a larger pattern by the executive 
branch of denying the Senate the information needed to carry out 
confirmation and oversight responsibilities. Over and over again, the 
administration seems to use every means at its disposal to deny 
documents or information to the Senate, or to withhold key portions of 
documents, or to limit access to information.
  It threatens to erode the Senate's constitutional obligations and 
responsibilities and the constitutional balance between the executive 
and legislative branches of Government. Senate acquiescence in the 
administration's refusal to provide relevant information undermines the 
fundamental principle of Congress as a co-equal branch of Government.
  The story of the administration's concealing information about 
Guantanamo abuses began during a previous confirmation, that of Judge 
Michael Chertoff in early 2005 to head the Department of Homeland 
Security. Judge Chertoff had been the head of the Justice Department's 
Criminal Division, where Alice Fisher served as his deputy from July 
2001 to July 2003. In preparing for the Homeland Security and 
Governmental Affairs Committee's hearing on Judge Chertoff's 
nomination, I became aware of a document bearing on what officials 
under Judge Chertoff's supervision knew, and therefore about what he 
might have known, about the mistreatment of detainees at Guantanamo. 
This document had been made public in response to a Freedom of 
Information Act, or FOIA, request.
  The document, dated May 10, 2004, consists of a series of e-mails by 
an FBI agent--unnamed--recounting the concerns that FBI Agents as law 
enforcement personnel down at Guantanamo, had during 2002 and 2003. He 
was recounting what the FBI Agents saw in

[[Page S9704]]

those critical years when Ms. Fisher was the Deputy Director for the 
Criminal Division. It spoke about DOD interrogation techniques which 
``differed drastically'' from methods employed by the FBI. It recounted 
``heated'' conversations of FBI personnel with DOD officials.
  There were heated conversations between FBI personnel and DOD 
officials about aggressive interrogation techniques. This FBI agent 
said that the Department of Defense has their marching orders from the 
Secretary of Defense and that the two techniques again differed 
drastically.
  E-mails during those years recounting these heated conversations 
between the FBI which was objecting to the techniques being used at 
Guantanamo and DOD officials who were engaged in those techniques 
confirmed the serious FBI concern about what they saw at Guantanamo. 
FBI agents expressed alarm about the military's interrogation plans, 
saying in an e-mail dated December 9, 2002: ``You won't believe it.'' 
Also in that e-mail dated December 9, 2002, they included an outline of 
the coercive techniques in the military's interviewing toolkit.
  So you have the FBI on the one hand talking to their headquarters 
about coercive techniques being used against Guantanamo detainees, 
complaining about those details, and in one e-mail dated September 30, 
2002, FBI agents were asked whether or not they could even work with 
the military interrogators. They were told that FBI agents had guidance 
to work with military interrogators ``as long as there was no `torture' 
involved.''
  Think about it. We read the headlines in today's newspapers of the 
techniques being used by the Department of Defense, the CIA and the 
Department of Justice. These are the headlines that we see in today's 
papers. These are the events from which those headlines flow. These are 
e-mails back in 2002 and 2003 referring to coercive techniques that the 
FBI objected to, talking about heated conversations that the FBI was 
having with the Department of Defense over those techniques. That is 
what today's story flows from.
  Yet the FBI was finally told by their superiors that you can be 
present as long as no torture is involved.
  FBI agents complained of DOD techniques in a number of settings, 
including to the generals at Guantanamo, to the DOD General Counsel 
here in Washington, and in video teleconferences with the Pentagon. 
According to FBI emails, a senior member of the Department of Justice 
Criminal Division was present at Guantanamo at the time of a ``heated'' 
video teleconference during late 2002. FBI officials were so concerned 
that their agents at Guantanamo received guidance during this period 
from headquarters ``to step out of the picture'' and ``stand clear'' 
when these aggressive interrogation techniques are being used. That is 
how deep this went.
  This was all brought back to the Department of Justice when Alice 
Fisher was the deputy head of the Criminal Division. And if the 
Criminal Division people were deeply involved in these debates, was Ms. 
Fisher involved? What did she know about the aggressive tactics? What 
did she know about the objection of the FBI agent, which is part of the 
Department of Justice, to these techniques? That is what we have tried 
to find out over the last year and a half.
  The May 2004 FBI document I mentioned describes how senior FBI 
officials communicated regularly with their Justice Department 
counterparts in the Criminal Division during the period in question, 
the period when Ms. Fisher was Deputy Director of Department's Criminal 
Division. In these meetings, the FBI's deep concerns about techniques 
employed by DOD personnel were discussed. Efforts to learn more began 
during Judge Chertoff's confirmation as head of the Department of 
Homeland Security. He had been head of the Criminal Division during the 
time of these events, from April of 2002 through March of 2003 that 
Alice Fisher was his deputy.
  Let me read from the May 2004 document. This was the highly redacted 
version which was available at the time of the Senate's consideration 
of Judge Chertoff's nomination. The document reads in part as follows:

       In my weekly meetings with DOJ, we often discussed 
     [redacted, blanked out] techniques and how they were not 
     effective for producing intelligence that was reliable.

  Then there is a series of blotted-out names of several individuals 
with the abbreviation SES after the names indicating the individuals 
were members of the Senior Executive Service. The document states that 
the named individuals ``all from the Department of Justice Criminal 
Division'' attended meetings with the FBI. Again, Alice Fisher was the 
Deputy Director of the Department of Justice Criminal Division at the 
time.
  The document continues:

       We all agreed [blank, redacted, covered over] were going to 
     be an issue in the military commission cases. I know [blank] 
     brought this to the attention of [blank].

  That was the document that we were given during the Chertoff 
nomination. Clearly, the redacted information--the deleted portions of 
this document--was relevant. It included the names of senior Criminal 
Division officials participating in those meetings with the FBI agents. 
The administration withheld this information during Judge Chertoff's 
confirmation hearing before the Homeland Security Committee of which I 
am a member.
  On February 2, 2005 during his confirmation hearing, I asked Judge 
Chertoff about this document. In that hearing, Judge Chertoff could not 
say which Criminal Division officials were named in the document or 
even whether the weekly meetings referred to in the document occurred 
on his watch as head of the Criminal Division. He could not recall any 
discussion about DOD's interrogation techniques at Guantanamo ``other 
than simply the question of whether interrogations or questioning down 
there was effective or not.''
  Judge Chertoff further testified that he ``had no knowledge'' of the 
use of any interrogation techniques other than those that he described 
as ``plain vanilla.''
  We learned a few months after Judge Chertoff's confirmation that the 
interrogation techniques the military was using at Guantanamo were 
anything but ``plain vanilla.'' The Defense Department investigation by 
Generals Schmidt and Furlow into the FBI allegations of detainee 
mistreatment at Guantanamo during the period of 2002 to 2003 found that 
interrogators at Guantanamo could subject detainees to numerous 
aggressive interrogation techniques. These included nudity, sleep 
deprivation, isolation, temperature extremes, both hot and cold, loud 
music and strobe lights and ``gender coercion;'' that is, inappropriate 
touching by female interrogators.
  The report found that the interrogation of one high-value detainee 
involved many of these techniques as well as forcing the detainee to 
wear a dog leash and perform dog tricks; also forcing him to wear 
women's underwear; strip searches; and 20-hour interrogations for 48 
out of 54 days.

  Here is what one of the persons in the Army helping to keep these 
detainees in custody wrote about her experiences. She wrote:

       On a couple of occasions, I entered interview rooms to find 
     a detainee chained hand and foot in a fetal position to the 
     floor with no food or water, or care. Most times, they would 
     urinate and defecate on themselves. They had been left there 
     for 18 to 48 hours or more. On one occasion the air 
     conditioning had been turned down so far the temperature was 
     so cold in the room that the barefooted detainee was shaking 
     with cold. When I asked the MPs on duty what was going on, I 
     was told the interrogators the day prior had ordered this 
     treatment and the detainee was not to be moved. The detainee 
     was almost unconscious on the floor with a pile of hair next 
     to him. He had apparently been literally pulling out his own 
     hair throughout the night.

  ``Plain vanilla'' is all that Judge Chertoff heard about. But members 
of his Division heard about those techniques, and we didn't know that 
during the Chertoff nomination because the information was denied to 
us.
  Other FBI documents include a partially redacted letter dated July 
14, 2004 from Thomas Harrington, Deputy Assistant Director of the FBI's 
Counterterrorism Division to Major General Donald Ryder, Commanding 
General of the Army's Criminal Investigation Command.

       Detailee highly aggressive, interrogation techniques at 
     Guantanamo.

  The subject line in the letter is ``suspected mistreatment of 
detainees.''
  The letter describes alleged incidences of abuse witnessed by FBI

[[Page S9705]]

agents as early as the fall of 2002. These include allegations of a 
female interrogator squeezing a male detainee's genitals, bending back 
his thumbs; an interrogator reportedly wrapping a detainee's head in 
duct tape; the use of a dog to intimidate a detainee.
  The letter describes a detainee suffering from extreme mental trauma 
after being kept in isolation in a cell flooded with lights for 3 
months.
  The letter indicates these incidents and other FBI concerns were 
discussed with two officials in the DOD General Counsel's office in 
mid-2002.
  There are two points to emphasize here. These events took place from 
2002 to 2003 when Ms. Fisher was the Department's Director of the 
Criminal Division.
  These events were reported to top level people in the Criminal 
Division.
  The question is, What did she know about these events as Deputy 
Director of that Criminal Division? That is what we have tried to find 
out since her nomination. That is where we have been thwarted and 
frustrated and obstructed by the administration in getting information 
from them.
  These are not some unknown people making these complaints to the 
Department of Justice's Criminal Division. This is our own FBI people 
who are strongly objecting to these aggressive DOD interrogation 
techniques. They were writing in. They were sending e-mails back to 
their headquarters about the military's coercive interrogations.
  One e-mail said, ``You won't believe it''--the techniques used and 
what they were involved with. At the same time, FBI personnel had 
weekly meetings with senior Criminal division officials discussing the 
Department of Defense techniques. Again, Michael Chertoff was head of 
that division at the time Alice Fisher was his deputy.
  Other Department of Defense investigations into detainee abuse, in 
particular the report of Major General George Fay and the Schlesinger 
panel, concluded that it was some of these aggressive techniques in use 
at Guantanamo which migrated to Afghanistan and Iraq and were part and 
parcel of detainee abuse at Abu Ghraib and elsewhere. If the techniques 
at Guantanamo that I have just described sound familiar, it is, because 
the pictures of those techniques used at Abu Ghraib became painfully 
familiar to us and to the world.

  That Judge Chertoff did not recall any discussions about DOD 
interrogation techniques other than perhaps whether they were 
effective, never heard of a discussion about abuses, aggressive 
techniques being used by the Department of Defense, Judge Chertoff did 
not recall any knowledge, did not have any knowledge about who in his 
division might have engaged in such discussions or when those 
discussions might have taken place, should not have been the end of the 
Senate inquiry into this matter. If the Senate had access to the names 
listed in the May 2004 FBI document at the time of Judge Chertoff's 
confirmation, we would have tried to refresh Judge Chertoff's 
recollection about the conversations referred to in these documents.
  The Senate clearly had a right to find out the names of these 
Department of Justice Criminal Division officials and ask them what 
they knew about these interrogations, what if anything they reported, 
what actions if any were taken. The Senate was frustrated and thwarted 
by an administration that wanted to cover up what was going on in the 
area of interrogation of detainees at Guantanamo.
  In February of 2005, Senator Lieberman and I wrote to FBI director 
Mueller requesting that he provide an unredacted version of the May 
2004 document referring to the weekly FBI Criminal Division meetings 
or, if a copy was not provided, then provide a legal justification for 
denying us the unredacted document.
  In letter dated 3 days later, February 7, 2005, the Department of 
Justice--not the FBI but the Department of Justice--wrote to deny the 
request. The Justice Department claimed that an unredacted copy could 
not be provided because it contained ``information covered by the 
Privacy Act . . . as well as deliberative process material.'' A few 
days later, on February 10, Senator Lieberman and I wrote to the 
Attorney General requesting that he reconsider his decision not to 
provide an unredacted copy of the May 2004 FBI document.
  Despite repeated requests, the Justice Department refused to provide 
either an unredacted copy of the May 10, 2004 e-mail or information on 
the names of the FBI and the Department of Justice personnel redacted 
from the document prior to the Senate confirmation vote on February 15, 
2005 of Judge Chertoff, the Secretary of the Department of Homeland 
Security.
  The Justice Department's refusal to provide this information based on 
the Privacy Act was a misuse of that statute. The Privacy Act was 
designed primarily to prevent the U.S. Government from disclosing 
personal information about private individuals who have not consented 
to that disclosure. That act is not intended to authorize the 
Government to conceal from Congress the names of public officials 
engaged in Government conduct funded with taxpayers dollars. Invoking 
the Privacy Act to deny the Senate relevant information regarding a 
nomination before the Senate was an abusive and dangerous precedent, 
and we were determined not to let it stand.
  The excuses used to deny us an unredacted May 2004 document went 
beyond any assertion that a U.S. Senate has ever accepted from any 
administration as far as I can determine. There is no claim of 
executive privilege, and the document itself has no bearing on any 
advice given to the President. The particular FBI document that Senator 
Lieberman and I sought, and the other documents that I have referred 
to, dramatize the refusal of the administration to be straight with the 
American people and with the Congress relative to the detainee abuse 
issue.
  The thwarting of congressional oversight over this and so many other 
issues is deeply ingrained in this administration. The executive branch 
is determined to seize any crumb of justification to prevent Congress's 
access to executive branch documents needed to carry out our 
constitutional responsibilities of confirmation and oversight.
  We found out a month after the Senate confirmed Judge Chertoff to 
head the Department of Homeland Security the redacted portions of the 
May 2004 FBI e-mail were, indeed, very relevant to Judge Chertoff's 
nomination. On March 18, 2005, the Justice Department finally responded 
to our February 10, 2005 letter, a letter from Senator Lieberman and 
myself, asking the Department to reconsider its decision to withhold an 
unredacted copy of the May 2004 document. In its May 2005 response, the 
Justice Department stated it had reviewed the May 2004 FBI e-mail and 
provided a new version of the document, somewhat less redacted than 
previously.
  While significant information continued to be withheld, including the 
name of the FBI agent who authored the e-mail, the new version 
contained new information, including the names of the four Department 
of Justice Criminal Division officials who had regularly met with FBI 
personnel concerned about Department of Defense interrogation 
techniques.
  Specifically, the named Criminal Division officials who, according to 
this e-mail, were present at those meetings, discussing those 
interrogation techniques, were Alice Fisher, who served as Judge 
Chertoff's deputy, Dave Nahmias, then counsel to Judge Chertoff within 
the Criminal Division, and two other senior Criminal Division 
officials, Bruce Swartz and Laura Parsky. Also newly revealed was that 
one Criminal Division official, Bruce Swartz, had brought concerns 
about Department of Defense tactics to the attention of the Department 
of Defense Office of General Counsel.
  On May 2, 2005, I wrote to Attorney General Gonzales requesting the 
name of the author of that May 2004 e-mail. Who was the FBI agent who 
wrote that e-mail naming those persons? I also requested an opportunity 
to interview both the FBI and the Department of Justice personnel named 
in that document, including, specifically, senior Justice Department 
officials David Nahmias, Bruce Swartz, and Laura Parsky.
  I don't think there is any doubt that information would be relative 
to the

[[Page S9706]]

nomination of Judge Chertoff. The administration essentially told us, 
however, to trust them, that the information and interviews we were 
seeking were not relevant to Judge Chertoff's nomination.
  Yes, it was.
  This saga, the pattern of withholding relevant information about 
Guantanamo abuses continued in relation to Alice Fisher's nomination in 
April 2005 to fill the position vacated by Judge Chertoff, the head of 
the Criminal Division of the Department of Justice.
  Remember, Ms. Fisher was specifically named by the FBI agent in the 
May 10, 2004 e-mail as having attended weekly FBI Department of Justice 
meetings where DOD interrogation techniques were discussed. The name of 
the agent, however, was still redacted. There was still, and is to this 
day, stonewalling and obstruction to legitimate requests of Senators 
who must vote under the Constitution on the confirmation of these 
appointees.
  I ask unanimous consent to have a chronology of my attempts to get 
information relative to the Alice Fisher nomination printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

  Chronology Relating to the Nomination of Alice Fisher for Assistant 
       Attorney General, Criminal Division--as of September 2006

       Feb. 4, 2005: First Levin-Lieberman request (to FBI 
     Director Robert Mueller) for an unredacted copy of the May 
     10, 2004 FBI e-mail referring to weekly DOJ-FBI meetings at 
     which DoD interrogation techniques were discussed.
       Feb. 7, 2005: DOJ response denies the Levin-Lieberman 
     request for unredacted copy of May 10, 2004 FBI e-mail.
       Feb 10, 2005: Second Levin-Lieberman request (to Attorney 
     General Alberto Gonzales) for an unredacted copy of the e-
     mail.
       Mar. 10, 2005: DOJ response provides a revised version of 
     the May 10, 2004 FBI document with fewer redactions. New 
     version includes a reference to Alice Fisher as one of the 
     senior officials attending meetings where FBI agents 
     expressed concerns about interrogation techniques at 
     Guantanamo Bay.
       April 4, 2005: Alice Fisher nominated for Assistant 
     Attorney General of DOJ Criminal Division.
       April 6, 2005: DOJ letter to Senator Levin supplementing 
     the February 10, 2005 Levin/Lieberman letter, including third 
     version of May 10, 2004 document with additional text 
     restored. Name of e-mail's author remains redacted.
       May 2, 2005: Levin letter to Attorney General Gonzales 
     requesting again that DOJ provide the names of the author of 
     the e-mail and other FBI personnel still redacted from the 
     May 10, 2004 document and for an opportunity to interview FBI 
     and DOJ personnel named in that document.
       May 12, 2005: Judiciary Committee holds hearing on Fisher 
     nomination.
       May 2005: In response to written questions from Judiciary 
     Committee member Senator Richard Durbin, Fisher states she 
     did ``recall general discussions about interrogations at 
     Guantanamo Bay'' but did ``not recall that interrogation 
     techniques were discussed'' at weekly meetings between DOJ 
     and FBI. She states she does ``recall being aware of FBI 
     concerns about interviews'' but ``cannot recall the content 
     of specific meetings about detainee interrogation at 
     Guantanamo Bay.''
       June 7, 2005: In response to second set of written 
     questions from Senators Durbin and Kennedy, Fisher says she 
     does ``not recall FBI personnel or anyone else expressing to 
     me allegations about mistreatment of detainees at Guantanamo 
     Bay.'' She states that she ``cannot reconcile my recollection 
     with statements contained in the (May 10, 2004) e-mail. . . 
     .''
       June 14, 2005: Senators Durbin, Kennedy, and Levin 
     interview Alice Fisher. Fisher says she does not recall FBI 
     expressing concerns about interrogation techniques at 
     Guantanamo Bay, other than concerns about their 
     effectiveness.
       June 16, 2005: Judiciary Committee reports Fisher 
     nomination. Nomination placed on the Senate Executive 
     Calendar.
       June 29, 2005: Levin letter to Attorney General Gonzales 
     asking for a reply to his May 2, 2005 letter and renewing 
     requests for information and interviews of David Nahmias, 
     Laura Parsky, Bruce Swartz, and other officials named in the 
     May 10, 2004 e-mail.
       July 26, 2005: DOJ Letter to Judiciary Committee Chairman 
     Arlen Specter stating that the author of the May 10, 2004 FBI 
     e-mail now says that he ``did not have conversations with Ms. 
     Fisher nor does he recall conversations in Ms Fisher's 
     presence about the treatment of detainees at Guantanamo 
     Bay.''
       July 29, 2005: Letter from Attorney General Gonzales to 
     Minority Leader Harry Reid stating that the steps the 
     Department has taken in response to Senators' concerns ``are 
     sufficient for the Senate to make an informed decision'' 
     about the Fisher nomination.
       August 19, 2005: Levin letter to DOJ Inspector General 
     Glenn Fine inquiring about issues to be reviewed by the on-
     going IG investigation into FBI allegations of detainee 
     mistreatment by DOD personnel at Guantanamo Bay. Among issues 
     Senator Levin recommends be reviewed is ``the extent to which 
     Ms. Fisher was aware of FBI concerns about detainee 
     interrogations and efforts to convey these concerns to DOD 
     and others.''
       August 31, 2005: Alice Fisher receives recess appointment 
     from President Bush to become Assistant Attorney General of 
     DOJ Criminal Division.
       Sept. 16, 2005: DOJ IG Fine letter to Levin indicating that 
     ongoing review of FBI personnel's allegations regarding 
     detainee abuse at Guantanamo will include issues relating to 
     ``the role of Alice Fisher, Assistant Attorney General for 
     the Criminal Division, and other Department officials 
     regarding detainee interrogation techniques.''
       Sept. 19, 2005: Alice Fisher is re-nominated for Assistant 
     Attorney General of DOJ Criminal Division.
       Sept. 29, 2005: Minority Leader Reid letter to Attorney 
     General Gonzales requesting that DOJ provide interested 
     Senators with the opportunity to interview relevant FBI and 
     DOJ personnel.
       Dec. 15, 2005: At meeting with Attorney General Gonzales 
     and White House Counsel Harriet Miers, Senator Levin requests 
     meeting with FBI agent who authored the May 2004 e-mail 
     without DOJ representative present, but offers compromise of 
     having DOJ IG representative sit in on the meeting.
       July 25, 2006: Senator Specter letter to Attorney General 
     Gonzales requesting to set up an interview between Senator 
     Levin and the FBI Agent.
       July 25, 2006: Levin letter to Attorney General Gonzales 
     requesting to meet with the FBI Agent with Senator Specter, 
     and an IG representative present, or alternatively, a 
     representative from the FBI's Office of General Counsel 
     (OGC).
       July 26, 2006: DOJ letter to Levin agreeing to the request 
     to make FBI Agent available to be interviewed with a 
     representative from the FBI OGC present, but asserting that 
     questions must be limited to those related to ``the agent's 
     factual knowledge of communications to Ms. Fisher about the 
     treatment of detainees at Guantanamo Bay.''
       July 26, 2006: Levin letter to DOJ clarifies that Senator 
     Levin intends to ask the FBI agent ``any question which I 
     consider relevant to the nomination of Alice Fisher.''
       July 26, 2006: Senators Levin and Specter meet with the FBI 
     Agent, as well as FBI General Counsel Valerie Caproni. FBI 
     Agent recalls only one FBI-DOJ meeting where Alice Fisher was 
     present but states he had regular conversations with two 
     Criminal Division officials, David Nahmias and Bruce Swartz, 
     regarding DoD interrogation techniques. The FBI Agent told 
     Mr. Nahmias that the DoD interrogation of one detainee was 
     ``completely inappropriate.''
       August 1, 2006: Levin letter to Attorney General Gonzales 
     again requesting to interview David Nahmias and Bruce Swartz.
       August 30, 2006: DOJ Letter to Levin requesting a vote on 
     Ms. Fisher's nomination. The letter does not address Senator 
     Levin's request for interviews of David Nahmias and Bruce 
     Swartz.
       Sept. 12, 2006: Levin letter to Attorney General Gonzales 
     reiterating request to interview David Nahmias and Bruce 
     Swartz, but proposing in the alternative that they provide 
     answers to questions included with the letter.

  Mr. LEVIN. Let me summarize these efforts. Alice Fisher was first 
asked in written questions what she knew or heard about these FBI 
concerns. In her answers, Ms. Fisher stated that she recalled regular 
meetings between the FBI and Department of Justice Criminal Division 
officials but did not ``recall that interrogation techniques were 
discussed at these meetings.'' She stated, also, that she did recall 
``general discussions'' with Judge Chertoff, who was heading the 
Criminal Division, about the ``effectiveness'' of DOD interrogation 
techniques and methods compared to the FBI's methods.
  On June 14, 2005, Senators Kennedy, Durbin, and I interviewed Ms. 
Fisher regarding her recollections of FBI concerns about Department of 
Defense interrogation techniques. At that meeting, she stood by her 
statement that she did not ``recall'' FBI officials expressing concerns 
about Department of Defense methods at Guantanamo other than general 
concerns about their effectiveness.
  To attempt to resolve the conflict in those statements, I wrote to 
Attorney General Gonzales in June of 2005 requesting a response to my 
request originally made on May 2, 2005 for the name of the FBI agent 
who authored the e-mail and for an opportunity to interview the 
Criminal Division officials named in that document, including David 
Nahmias, Bruce Swartz, and Laura Parsky. So May of 2005 is the first 
time I made the request for the name of the FBI agent who authored the 
e-mail and an opportunity to interview the named Criminal Division 
officials that were listed in that document--Nahmias, Swartz and 
Parsky.
  On July 26, 2005, the Justice Department wrote the Judiciary 
Committee

[[Page S9707]]

Chairman Arlen Specter, responding to Senator Specter's request for 
information about the May 2004 e-mail. In that letter, the Department 
provided a summary of an interview it had conducted with the FBI agent 
who authored the e-mail regarding what he knew of conversations with 
Alice Fisher.
  In that letter, the Department said:

       [the FBI agent] did not have conversations with Ms. Fisher 
     nor does he recall conversations in Ms. Fisher's presence 
     about the treatment of detainees at Guantanamo Bay. He did 
     participate in conversations with Ms. Fisher and other 
     department and FBI representatives about a specific detainee 
     and that detainee's links to law enforcement efforts. These 
     discussions focused on the information gathered regarding the 
     information and individual and his associations, but not on 
     his treatment or interrogation.

  The letter also stated that the unnamed FBI agent's conversation with 
Ms. Fisher:

       . . . focused on the particular detainee described above 
     and predated the broader conversations [in the weekly 
     meetings] about DOD techniques with other department 
     representatives.

  And the letter concluded by expressing the hope that this would 
resolve any outstanding questions about Ms. Fisher's nomination.
  A few days later, the Attorney General wrote to the minority leader, 
Democratic Leader Harry Reid, stating that the Department had taken 
steps in response to the Senator's concerns ``sufficient for the Senate 
to make an informed decision'' on Alice Fisher's nomination. In 
essence, what the Justice Department was saying, they will do the 
interview; trust them. It is up to them to decide on the sufficiency of 
information for the purpose of Senate confirmation. The Department was 
unwilling to trust Senators with the name of the FBI agent who had 
written e-mails despite the fact that the Senate, on a regular basis, 
has access to sensitive documents and information which frequently 
contains the names of FBI agents.
  On this important issue of Senate advice and consent to a nomination, 
the Department was refusing to provide Senators with information 
relevant to our constitutional duty.
  I requested that the nomination of Ms. Fisher not be considered until 
I had the opportunity to get the relevant information I had been 
seeking. The administration continued to refuse to provide the 
information and instead made a recess appointment of Alice Fisher to 
head the Criminal Division in August of 2005, and she was renominated 
in September of 2005.
  In December of 2005, Attorney General Gonzales offered to make the 
FBI agent available to be interviewed by me if a Department of Justice 
official could be present. I declined an interview under these terms 
but told Attorney General Gonzales I could accept having someone from 
the Department of Justice Inspector General's office present.
  This led to more delay, more stonewalling by the Department of 
Justice until this past June. With the help of the chairman of the 
Judiciary Committee, Senator Specter, and others, the Justice 
Department finally agreed to make the FBI agent who authors the e-mails 
available to be interviewed.
  On July 26 of this year, more than 1 year after my request for the 
FBI agent's name, Senator Specter and I, along with FBI General Counsel 
Caproni, met with the FBI agent--1 year, delayed by the administration, 
simply providing access to the FBI agent who wrote a critically 
important e-mail.
  There was reference made about the Senate obstructing the nomination.
  (Mr. CHAFEE assumed the Chair.)
  Mr. LEVIN. Mr. President, the obstruction here should be directly 
laid at the feet of the administration which, for 1 year, refused 
access to an FBI agent who wrote a critically important memo regarding 
detainee abuse at Guantanamo and whether Ms. Fisher had any knowledge 
of that and, if so, what she did relative to that knowledge.
  The FBI agent said in the interview that he recalled Ms. Fisher 
attended only one of the weekly meetings, which dealt primarily with 
the relationship between a particular high-value detainee and the 9/11 
hijackers. He also stated that he had ``frequent conversations'' with 
David Nahmias, counsel to the Criminal Division's head, Mr. Chertoff. 
That is now the issue which comes before the Senate.
  Just a couple of months ago, it was finally provided to the Senate 
that an FBI agent says he had frequent conversations about the issue of 
interrogation techniques at Guantanamo with the counsel, the attorney 
to the head of the Criminal Division of which the current nominee was 
the deputy. This is the same David Nahmias named in that FBI agent's 
May 2004 e-mail regarding FBI concerns about aggressive DOD techniques. 
The FBI agent added that he specifically shared with Mr. Nahmias his 
view that interrogation methods used on one detainee were ``completely 
inappropriate.'' This is the same David Nahmias I have repeatedly 
sought to interview since May of 2005.
  Compare these statements of the FBI agent when interviewed in person 
to the assurances the Justice Department made in their July 2005 letter 
about the FBI agent's discussions with the Criminal Division officials, 
including Alice Fisher. The Justice Department wrote that the 
discussions at the meeting attended by Alice Fisher ``focused on the 
information gathered'' from one specific detainee ``but not on his 
treatment or interrogation. . . .'' The Justice Department never said 
that the FBI agent had ``frequent conversations'' about interrogation 
techniques being used at Guantanamo with David Nahmias, counsel to the 
head of the Criminal Division, or less frequent conversations with 
Bruce Swartz, also a Deputy Assistant Attorney General in the Criminal 
Division. That wasn't disclosed--very critical information, which is 
the subject now of the debate. Why can we not get questions answered 
from David Nahmias, who we now believe, acting as counsel to Chertoff, 
head of the Criminal Division, of which Alice Fisher was the deputy--
why can we not get David Nahmias to answer questions as to whether he 
shared those deeply held concerns, which were shared with him by FBI 
agents at Guantanamo, with Alice Fisher, the deputy head of the 
Department?
  Following the interview, I also learned of a December 11, 2002, e-
mail to Mr. Nahmias from the FBI agent I interviewed, asking for his 
comments on ``legal issues regarding Guantanamo Bay,'' which were 
apparently set out in an attachment to that e-mail.
  The FBI agent's statements to me in that December 11, 2002, e-mail 
reveal that FBI personnel raised concerns with senior Department of 
Justice Criminal Division officials, including David Nahmias and Bruce 
Swartz, that went beyond simply questions about the ``effectiveness'' 
of Department of Defense techniques, which was the only FBI concern 
that both Chertoff and Ms. Fisher could recall during their 
confirmation proceedings--the only concern they ever heard about the 
effectiveness of DOD techniques, despite a raging debate between the 
FBI and the Department of Defense about the aggressiveness of those 
techniques and whether those techniques were abusive and indeed 
illegal.
  To try to determine whether those FBI concerns were shared with 
Nahmias, counsel to the Criminal Division, and were shared with the 
deputy head of that Criminal Division, Ms. Fisher, I wrote to Attorney 
General Gonzales on August 1, 2006, to renew for the third time my 
request to interview these two senior Criminal Division officials, 
David Nahmias and Bruce Swartz.
  This is a highly relevant request. The FBI agent said he discussed 
the Department of Defense interrogation tactics during regular meetings 
with Mr. Nahmias and Mr. Swartz. Mr. Nahmias was counsel to Assistant 
Attorney General Chertoff, who was head of the Criminal Division. Alice 
Fisher and Bruce Swartz were both deputies in that division. Alice 
Fisher was in charge of overseeing terrorist suspect prosecutions. FBI 
objections to aggressive DOD interrogation tactics were a major issue, 
a raging issue, according to numerous e-mails sent back and forth from 
Guantanamo to Washington. This issue was so intense that FBI agents 
were wondering whether they could even be present during interrogation. 
They were so intense that FBI agents were writing back to headquarters 
saying: Can you believe what is going on down there? These differences 
between the FBI and the Department of Defense were so intense

[[Page S9708]]

that there were regular discussions, meetings, debates, and heated 
conversation over the tactics being used by the DOD at Guantanamo that 
the FBI rejected, reacted to, and shared with their headquarters.
  All we needed to do--and we still need to ask--is ask, Did Mr. 
Nahmias and Mr. Swartz talk to the deputy head of the Criminal Division 
about those concerns? Did they talk to Alice Fisher about those 
concerns? Alice Fisher may not recall hearing about those concerns, 
about abusive and aggressive tactics, but they might recall talking to 
her about them. If the administration has its way, we will never know. 
We are never going to know whether David Nahmias and Bruce Swartz 
discussed with Alice Fisher what we now know they knew about in their 
capacities--one as counsel to the Criminal Division, of which she was 
the deputy, and the other as a deputy director of that division.
  In an August 30 response, the Justice Department ignored my request 
to interview Mr. Nahmias and Mr. Swartz, urging instead that the Senate 
proceed to a vote on Ms. Fisher's nomination. On September 12, a week 
ago, I wrote back, reiterating my request for an interview, offering in 
the alternative that Mr. Nahmias and Mr. Swartz respond to just a set 
of questions I had provided. The Justice Department has not responded 
to this letter.
  So the Justice Department stalled for 1 year in allowing me access to 
an FBI agent whose information is clearly relevant to this nomination; 
for 1 year, they stonewalled; for 1 year, they stood in the way of 
information coming to the U.S. Senate; for 1 year, they set up a 
roadblock to a Senator who is making a request that is clearly relevant 
to the fitness of a person to serve as head of the Criminal Division of 
the Department of Justice of the United States. And then finally I am 
given access to that agent 1 year later. And when that agent discloses 
that he, in fact, shared concerns about aggressive interrogation 
techniques with two other individuals who were working at the Criminal 
Division with Ms. Fisher, and when I simply say I want to talk to those 
two people to see if they shared those concerns with Ms. Fisher because 
she denied ever hearing concerns about aggressive techniques, of 
course, I have been denied that.
  The stonewalling continues. Obstruction by the Department of Justice 
of access to information relevant to the nomination of Alice Fisher 
continues to this day.
  When I wrote the Attorney General on September 12 saying: OK, if we 
cannot meet with these two witnesses, at least would you ask them to 
answer questions as to whether they shared this information they had 
heard about these techniques being used at Guantanamo, there is no 
answer from the Department of Justice. They are silent. The current 
form of stonewalling and obstruction by the Department of Justice of 
information that is relevant to this nomination is silence.
  There is one other important background fact I wish to bring to the 
attention of the Senate. The Justice Department's inspector general has 
been investigating for over a year now the allegations by FBI personnel 
of having observed the mistreatment of detainees at Guantanamo, Abu 
Ghraib, and elsewhere. The inspector general of the Justice Department, 
Glenn Fine, has assured me that this review will look into ``the role 
of Alice Fisher, Assistant Attorney General for the Criminal Division, 
and other Department officials regarding detainee interrogation 
techniques.'' We have been waiting for the IG's findings for many 
months. The Senate is about to vote on Ms. Fisher's nomination before 
the IG report comes out.
  The delay in voting on the confirmation of this nominee is directly 
attributable to the administration stonewalling on requests for 
relevant information from the Senate. Ms. Fisher is in place. She is in 
office. She is in an acting capacity. I have had a standing request to 
interview former Department of Justice Criminal Division officials, 
seeking relevant information, since May of 2005. This is not a last-
minute request to talk to Messrs. Nahmias and Swartz. I have made four 
requests since May of 2005 to interview the two of them.
  What is new here is that now we know, in addition to them being named 
in the e-mail I referred to, now we know from an FBI agent, the unnamed 
author of that e-mail, that he shared with those two men at the 
Criminal Division--one being counsel and one being a deputy director--
that he shared with them the aggressive techniques, abusive techniques 
I have outlined, which were being utilized at Guantanamo.
  Why stonewall? Why not simply just ask Mr. Nahmias and Mr. Swartz the 
questions I have submitted to the Department of Justice? What is behind 
this?
  By the way, I ask unanimous consent that the questions I asked the 
Attorney General to submit to Mr. Nahmias and Mr. Swartz be printed in 
the Record at this time.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                      Questions for David Nahmias


                             1. Background

       A. What was your position during Ms. Alice Fisher's tenure 
     as Deputy Assistant Attorney General in the Criminal Division 
     (July 2001 to July 2003)?
       B. What was your professional relationship with Ms. Fisher? 
     Did you report to her?


         2. FBI Concerns Regarding DoD Interrogation Techniques

       The FBI agent whom I interviewed on July 26, 2006, (the 
     ``FBI Agent'') stated that he had ``frequent contacts'' with 
     you, during which he shared his concerns regarding aggressive 
     Defense Department (DOD) interrogation techniques at 
     Guantanamo Bay.
       A. Did you have frequent contacts with the FBI Agent? If 
     so, how frequently?
       B. Were you aware of FBI personnel's concerns regarding 
     aggressive DoD interrogation techniques? If so, what were 
     these concerns?
       C. Were you aware of FBI personnel's concerns regarding 
     legal issues associated with DoD interrogation techniques? If 
     so, what were those legal concerns?
       D. Were you aware of FBI personnel's concerns about the 
     alleged mistreatment of detainees? If so, what were those 
     concerns? Did you ever hear of any incidents of detainee 
     mistreatment at Guantanamo?
       E. Did you at any time discuss FBI concerns regarding DoD 
     interrogation techniques or the mistreatment of detainees 
     with Alice Fisher? If not, why not? If so, please describe 
     when these discussions occurred and what was said.
       F. Did you at any time discuss FBI concerns regarding DoD 
     interrogation techniques or the mistreatment of detainees 
     with Bruce Swartz, Laura Parsky, or other DOJ officials in 
     the Criminal Division? If not, why not? If so, please 
     identify with whom you discussed these concerns, when, and 
     what was said.


                        3. May 10, 2004 Document

       A May 10, 2004 email authored by the FBI Agent stated: ``In 
     my weekly meetings with DOJ we often discussed DoD techniques 
     and how they were not effective or producing intel that was 
     reliable. Bruce Swartz (SES), Dave Nahmias (SES), Laura 
     Parskey (now SES, GS-15 at the time) and Alice Fisher (SES 
     Appointee) all from DOJ Criminal Division attended meetings 
     with FBI. We all agreed DoD tactics were going to be an issue 
     in the military commission cases. I know Mr. Swartz brought 
     this to the attention of DoD OGC.''
       A. Please identify the FBI and DOJ personnel who attended 
     these meetings. How frequently did Alice Fisher attend these 
     meetings?
       B. How often were DoD interrogation techniques discussed at 
     these weekly meetings? During what time period did these 
     discussions occur?
       C. Did you believe that DoD interrogation techniques would 
     be an issue for the military commissions? If so, in what way?
       During my interview with the FBI Agent, he recalled one 
     DOJ-FBI meeting where Ms. Fisher was present. The FBI Agent 
     stated that the main subject of that meeting was the possible 
     relationship between a particular high value detainee at 
     Guantanamo and the 9/11 hijackers, but also discussed was how 
     the Defense Department was ``pushing hard'' on the FBI on-
     site commander to ``speed up'' getting information out of 
     this particular detainee and others.
       D. Do you recall the DOJ-FBI meeting at which Ms. Fisher 
     was present and FBI concerns about DoD ``pushing hard'' on 
     FBI personnel to ``speed up'' getting information was 
     discussed?
       E. What actions were taken in response to these concerns?


                     4. December 11, 2002 Document

       A December 11, 2002 email from the FBI Agent to you is 
     entitled ``Fwd: Legal Issues re: Guantanamo Bay'' and 
     requests your comments, apparently on an attachment to that 
     email.
       A. Are you familiar with this email?
       B. Did the legal issues raised in this email relate to DoD 
     interrogation techniques at Guantanamo Bay?
       C. Did you bring this email to the attention of Ms. Fisher? 
     Did you discuss the legal issues raised in this email with 
     her? If so, what actions were taken in response?
       D. Please provide a copy of any communication you provided 
     in response to the December 11, 2002 document.

[[Page S9709]]

     
                                  ____
                       Questions for Bruce Swartz


                             1. Background

       A. What was your position during Ms. Alice Fisher's tenure 
     as Deputy Assistant Attorney General in the Criminal Division 
     (July 2001 to July 2003)?
       B. What was your professional relationship with Ms. Fisher? 
     Did you report to her?


         2. FBI Concerns Regarding DoD Interrogation Techniques

       The FBI agent whom I interviewed on July 26, 2006, (the 
     ``FBI Agent'') stated that he had ``contacts'' with you 
     during the period when FBI personnel at Guantanamo Bay were 
     raising concerns regarding aggressive Defense Department 
     interrogation techniques.
       A. Did you have contact with the FBI Agent? If so, how 
     often?
       B. Were you aware of FBI personnel's concerns regarding 
     aggressive DoD interrogation techniques? If so, what were 
     these concerns?
       C. Were you aware of FBI personnel's concerns regarding 
     legal issues associated with DoD interrogation techniques? If 
     so, what were those legal concerns?
       D. Were you aware of FBI personnel's concerns about the 
     alleged mistreatment of detainees? If so, what were those 
     concerns? Did you ever hear of any incidents of detainee 
     mistreatment at Guantanamo?
       E. Did you at any time discuss FBI concerns regarding DoD 
     interrogation techniques or the mistreatment of detainees 
     with Alice Fisher? If not, why not? If so, please describe 
     when these discussions occurred and what was said.
       F. Did you at any time discuss FBI concerns regarding DoD 
     interrogation techniques or the mistreatment of detainees 
     with David Nahmias, Laura Parsky, or other DOJ officials in 
     the Criminal Division? If not, why not? If so, please 
     identify with whom you discussed these concerns, when, and 
     what was said.


                        3. May 10, 2004 Document

       A May 10, 2004 email authored by the FBI Agent stated: ``In 
     my weekly meetings with DOJ we often discussed DoD techniques 
     and how they were not effective or producing intel that was 
     reliable. Bruce Swartz (SES), Dave Nahmias (SES), Laura 
     Parsky (now SES, GS-15 at the time) and Alice Fisher (SES 
     Appointee) all from DOJ Criminal Division attended meetings 
     with FBI. We all agreed DoD tactics were going to be an issue 
     in the military commission cases.''
       A. Please identify the FBI and DOJ personnel who attended 
     these meetings. How frequently did Alice Fisher attend these 
     meetings?
       B. How often were DoD interrogation techniques discussed at 
     these weekly meetings? During what time period did these 
     discussions occur?
       C. Did you believe that DoD interrogation techniques would 
     be an issue for the military commissions? If so, in what way?
       During my interview with the FBI Agent, he recalled one 
     DOJ-FBI meeting where Ms. Fisher was present. The FBI Agent 
     stated that the main subject of that meeting was the possible 
     relationship between a particular high value detainee at 
     Guantanamo and the 9/11 hijackers, but also discussed was how 
     the Defense Department was ``pushing hard'' on the FBI on-
     site commander to ``speed up'' getting information out of 
     this particular detainee and others.
       D. Do you recall the DOJ-FBI meeting at which Ms. Fisher 
     was present and FBI concerns about DoD ``pushing hard'' on 
     FBI personnel to ``speed up'' getting information was 
     discussed?
       E. What actions were taken in response to these concerns?


                   4. Discussions with DOD Officials

       In the May 10, 2004, document regarding FBI concerns over 
     DoD interrogation techniques, the FBI Agent states ``I know 
     Mr. Swartz brought this to the attention of DoD [Office of 
     General Counsel (OGC)].'' In her written answers during the 
     confirmation process, Alice Fisher recalled discussing FBI 
     concerns about the effectiveness of DoD interrogation 
     techniques with members of the DoD OGC, or being present when 
     such discussions took place. Did you bring FBI concerns 
     regarding DoD interrogation techniques to the attention of 
     DoD OGC? If so, please identify any meetings or discussions 
     with DoD OGC in this regard, when and where those meetings or 
     discussion occurred, and what was discussed. Did Ms. Fisher 
     participate in any such meeting or discussion?

  Mr. LEVIN. Mr. President, why is the administration more interested 
in keeping information from the Senate relevant to the knowledge of 
senior Department of Justice Criminal Division officials, including 
Alice Fisher, of the administration's policies and practices on the 
interrogation of detainees?
  What is going to happen again is that the administration's 
obstructionism will result in the Senate acting without relevant 
information. I know there will be many who will say we have more than 
enough information, and for many in this body, they have every right to 
vote based on the information they have. But when any Member of this 
body seeks relevant information on a confirmation, every Member of this 
body ought to stand in unison behind that request.
  We are all either going to be or have been in the position of seeking 
relevant information to a confirmation. We have all been in this 
position, and many of us will be in this position again. This should be 
treated as an institutional matter.
  There is no reason these questions that have been addressed to Mr. 
Nahmias and Mr. Swartz should not be answered. I believe this body, as 
a body, should ask the Attorney General to have these questions 
answered. There is no reason any relevant information to a confirmation 
should be denied to a Senator, providing the information is relevant 
and germane, and clearly this is.
  Again, I want to emphasize, this is not a last-minute request. This 
is something which arose from a meeting that was held with the FBI 
agent in question back in July. But the request for these meetings with 
Messrs. Swartz and Nahmias were made as early as May of 2005. They have 
been asked for on four occasions since then.
  Do David Nahmias and Bruce Swartz recall the FBI agent sharing his 
concerns about aggressive DOD interrogation techniques? He does. Do 
they remember? Did those two senior officials share those FBI concerns 
about DOD techniques with Alice Fisher? If so, what was her response? 
These are directly relevant questions.
  The pattern of this administration is transparent. The administration 
stonewalls on providing requested information. It then accuses Senators 
of delay and demands that the Senate act to confirm their nominees 
without the information. The administration follows this pattern 
because it works, and it works because this institution allows it to 
work.
  Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER (Mr. Martinez). The Senator has 32 minutes 
remaining.
  Mr. LEVIN. I reserve the remainder of my time, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I think Alice Fisher is a fine person. 
My colleague and those on the other side are never happy with whatever 
the President does to try to protect this country.
  He looked the American people in the eye--after he was elected, we 
had 9/11--and he said: I am going to use every power I have to 
prosecute, investigate, and stop those who threaten the safety of the 
American people. That is my responsibility as Commander in Chief. I 
took an oath to do that, and I intend to do that.
  And he appointed some good people. Now all we have had is second-
guessing, second-guessing, second-guessing, complaint, complaint, 
complaint, hold up nominees; never happy.
  Somebody has to do something. I remember right after 9/11. What 
happened? We had a national epiphany. We found out in a spasm of 
political activity years ago, just like in many ways today, the 
Congress, to placate critics and liberals and activists, prohibited the 
FBI from talking to the CIA. They prohibited CIA agents because they 
heard some of them had made a mistake somewhere--there were allegations 
of that--that they couldn't talk, when they were out doing undercover 
operations trying to obtain human intelligence in dangerous areas of 
the world, with people who had criminal records and might have done 
something wrong.
  What happened after 9/11? We said: Why didn't we have any human 
intelligence? What are the problems here? What we concluded was that 
both of those proposals, for example, were wrong, and we promptly 
reversed them. We changed the law.
  That is all I am saying about this flap--and I have been involved 
with it on the Armed Services Committee, and I have been involved with 
it on the Judiciary Committee. We have had 30 or more hearings 
investigating the people of this country who are trying to preserve, 
protect, and defend this Nation. That is who we investigate and 
complain about. Do we ever hear about how to better catch the 
terrorists? It is time we start thinking about defending and protecting 
this country rather than to prosecute and block and obstruct those who 
have been giving their every waking moment to make us safer.
  My good colleague from Michigan is such an able Senator. I am sorry 
this

[[Page S9710]]

didn't all work out to his satisfaction. The Department of Justice, the 
administration offered this, he didn't like that. They offered that, he 
didn't like that. Maybe sometimes one gets to thinking there has been a 
little strategy around here--and I have seen it in case after case that 
began with Miguel Estrada--for the Members on the other side to demand 
records, statements, internal conversations, internal memoranda to 
which they are not entitled. They don't want people coming in and 
demanding everything they said to everybody who came into their office. 
So they come up with this, and they ask for all these items. Then when 
they don't get them, they say: Obstruction, obstruction; we can't vote 
for the nominee. Now they have created an excuse to vote against a very 
fine nominee, when the person is doing an excellent job and ought to be 
confirmed so they can continue to be even more effective in the war 
against terror.
  I have seen it time and again. With regard to the Sixth Circuit Court 
of Appeals, one of our Senators down here complaining had a whole host 
of those nominees held up for years. The court ended up deciding the 
University of Michigan higher education, affirmative action case with 
far less judges than should have been on that panel. There has been 
some real concern expressed about that.
  Obstructing, holding up, and delaying nominees is not the right thing 
to do. We have important governmental actions to do here.
  Let me tell my colleagues about Alice Fisher. She has proven herself 
in the Criminal Division. Under her leadership, the division has made a 
number of great strides. The Criminal Division has been responsible for 
the national coordination of all national security prosecutions, of all 
the criminal cases in Federal court, including domestic and 
international terrorism and counterintelligence matters.
  Alice Fisher has also worked closely with the intelligence community. 
That is her responsibility. We had too much of a wall of separation. 
Sure, she is to be engaged in these issues to assess potential threat 
information to our national security and disrupt potential attacks 
against this country.
  Alice Fisher provides advice to U.S. attorneys. I was a U.S. attorney 
for 12 years. There are 93 of them around this country covering the 
whole country. She provides them advice on terrorism matters, including 
such areas as terrorist acts in the United States and abroad, weapons 
of mass destruction, principles of extraterritorial jurisdiction, and 
use of classified evidence and intelligence information in 
prosecutions. Alice Fisher also established the Office of Justice for 
Victims of Overseas Terrorism.
  During her tenure, the division's counterterrorism section, which 
Fisher also had previously organized and supervised as Deputy Assistant 
Attorney General, has prosecuted numerous ``material support'' 
terrorism cases, cases against people who have given material support 
to terrorists to further their ability to attack and kill innocent 
people in this country and abroad. Those prosecutions have been located 
throughout the country and include alleged planners supporting 
terrorism in Georgia, Ohio, Florida, New York, Virginia, and 
California; defendants facing extradition from the United Kingdom and 
other foreign countries; international terrorist organizations, such as 
al-Qaida, Hezbollah, FARC--the Revolutionary Armed Forces of Colombia--
and domestic terrorists.
  Under the direction of the Attorney General, the Justice Department 
is placing increased emphasis on targeting gangs. Fisher was chosen by 
the Attorney General to head that effort. Under her guidance, the 
Criminal Division has created the National Gang Targeting, Enforcement 
and Coordination Center, a multiagency initiative led by the Criminal 
Division, with participation from the Bureau of Alcohol, Tobacco, 
Firearms and Explosives, the Bureau of Prisons, the Drug Enforcement 
Administration, the Federal Bureau of Investigation, U.S. Immigration 
and Customs Enforcement, and the U.S. Marshals Service. Those are 
agencies she coordinates.
  The gang initiative will create law enforcement strategies and 
facilitate operations across agency lines aimed at dismantling national 
and transnational violent gangs. Fisher also established a new gang 
squad of experienced gang prosecutors who coordinate nationwide 
prosecutions and make them more effective.
  Under her leadership, in partnership with various U.S. Attorney's 
Offices and the Drug Enforcement Administration, more than 130 
defendants were recently indicted and hundreds of thousands of dollars 
seized as part of an international operation targeting the trafficking 
of black tar heroin in the United States. The multistate investigation, 
called Operation Black Gold Rush, included arrests in 15 U.S. cities 
and 10 indictments in eight Federal judicial districts, along with 
State charges. More than 17 kilograms of black tar heroin, a potent 
form of heroin that is dark and sticky in appearance, were seized 
during this operation.
  As Assistant Attorney General, she also has been involved now, and 
earlier when she was the Deputy Assistant Attorney General, with the 
Enron task force. We remember when everybody talked about Enron that 
something had to be done about it. Many people doubted anything would 
be done about it. President Bush announced that we were going to have 
integrity in big business, and big business people who cheat and harm 
their employees and others in this country will be vigorously 
prosecuted. She was involved in that effort.
  She supervised the Enron task force. It has investigated that entire 
scheme created by the executives of Enron to deceive the investing 
public, the Securities and Exchange Commission, and others. The case 
has resulted in convictions of top Enron executives. Many said that 
wouldn't happen, but they have been indicted, convicted, assets seized, 
and those include Ken Lay and Jeffrey Skilling, the two top people.
  As a member of the corporate fraud task force--and we need to be 
aggressive in prosecuting corporate fraud in America--Fisher 
coordinates with other agencies on corporate fraud policies and 
investigations.
  She has supervised recent corporate fraud prosecutions involving 
defendants from AIG, BP, and Qwest. She is not afraid to take on the 
big boys. She has done so effectively and courageously.
  She is cochair of the Law Enforcement Subcommittee of the President's 
Identity Theft Task Force. That is an important issue in our country. I 
have a staff person, and someone stole her identity and used it. She 
spent years trying to clear her record and get the situation 
straightened out.
  Under her direction, this subcommittee is focusing on enhancing 
coordination among law enforcement agencies, the Federal Trade 
Commission, and others to maximize the Government's capabilities to 
curb the international problem of identity fraud.
  Mr. President, I know you served so ably in Florida as a mayor and 
then later as a member of the President's Cabinet. Florida and other 
areas received terrific losses during Hurricane Katrina. We will 
probably spend over $100 billion on trying to help that whole region 
recover and a whole city, New Orleans, that was flooded. Having been a 
prosecutor in Mobile on the gulf coast after hurricanes, I can tell you 
that fraud does occur. You want to get money out to people who are 
hurting in a hurry. You can't ask for the same amount of time and 
evidence that you would normally ask. People need help right now. They 
have no place else to go. But people take advantage of that. The scum 
of the Earth take advantage of the generosity of the American people by 
often slipping in as contractors or claimed beneficiaries, lying about 
losses, to get money that is supposed to go to people who are hurting.

  Well, just days after Hurricane Katrina hit the Nation, Attorney 
General Gonzales established the Katrina Fraud Task Force. This task 
force would send a message right off the bat that fraud would be 
investigated and prosecuted, and it was to focus on fraud and 
corruption resulting from the hurricanes. He named Fisher the Katrina 
Fraud Task Force chairman. As chairman, Alice Fisher quickly set up a 
forward-looking strategic plan and resource allocation for this 
interagency task force, among all the other things she was doing, to 
investigate and prosecute fraud arising from Hurricane Katrina and 
related disasters. Under her guidance, the task force has made great 
strides to combat fraud.

[[Page S9711]]

  As of July 25, the task force had charged 371 defendants in 29 
separate Federal districts. A majority of the cases charged to date 
have involved emergency benefits fraud against both FEMA and the 
American Red Cross--charitable donation fraud. People have gone out and 
claimed they are raising money to help people, and they just steal it. 
What kind of sorry person is that, who would ask people to sacrifice 
and give help to someone else, and then steal the money? We have that, 
and she is working against it.
  Other cases have involved Government contract fraud. We have people 
taking advantage of the contracting process and cheating when they are 
supposed to follow through and do certain amounts of work for the 
Government. They have certified they have done it, they get paid, and 
then we find out they didn't do it. Some of them need to go to jail.
  The task force has therefore been taking a number of proactive 
measures to identify, investigate and prosecute these kinds of cases.
  Alice Fisher created the Katrina Fraud Task Force Joint Command 
Center in Baton Rouge where analysts, agents, and inspectors from the 
Inspector General and Federal law enforcement communities co-locate--
these are all of the agencies, State and local--they get together to 
focus on procurement fraud and public corruption which could result 
from the over $100 billion reconstruction money flowing into the 
affected region. As of July 25, 2006, the Command Center has received 
and referred 6,424 complaints to various Federal agencies.
  The task force has provided training for the Inspector General 
community. Each one of these agencies have their own Inspector General, 
and many of those Inspector Generals are not familiar with hurricane 
work. They train all of them so that the Commerce Department, the 
Agriculture Department, the Coast Guard, and other agencies involved 
with this relief effort can have watchdogs within their agencies 
trained to prevent fraud.
  I am going to tell my colleagues, we have had a problem in this 
Nation, and we still do, of public corruption. There are public 
officials, whether in hurricane areas or not, who are taking money, 
extorting bribes and that sort of thing. Unfortunately, that is true. 
For the most part, we are a Nation of high integrity, but there are 
those who don't meet those standards and need to be prosecuted. I would 
say, in many cases, the Federal investigators are the ones who really 
have the best opportunity, the independence, the distance, from the 
situation to handle these cases, and they just have to do it. They have 
been rightfully praised over the years for their leadership in that 
area.
  Under Fisher's leadership, the Public Integrity Section has 
prosecuted major public corruption cases, including the ongoing Jack 
Abramoff investigation, which has to date resulted in five pleas of 
guilty and in a conviction after trial of David Safavian, the former 
chief of staff of the General Services Administration--the GSA, a big 
Government agency here in Washington, their chief of staff. In 
addition, Fisher supervised the successful prosecution of former 
Alabama Governor Don Siegelman and former HealthSouth CEO Richard 
Scrushy for conspiracy and public corruption offenses.
  Fisher was recently named by the Deputy Attorney General to establish 
a national procurement fraud initiative. Now, we have a lot of money 
that is paid out as a result of Government procurement by our military 
and other agencies, and there is a good bit of fraud there, so she is 
forming a national initiative on that.
  Since Fisher's tenure began, the Department of Justice has made 
headway in aggressively prosecuting crimes against children. A lot of 
people say the Department of Justice shouldn't be involved in those 
kinds of things; that it is not important, and we need to focus on 
other big issues. But I submit the Department of Justice's leadership 
and work in these cases can make quite a difference.
  For example, the Criminal Division is currently coordinating 18 
national child pornography operations targeting hundreds and, in some 
cases, thousands of customers or participants in mass child pornography 
distribution schemes. In addition, as of July 26, 2006, the Innocence 
Lost Initiative targeting children victimized through prostitution has 
resulted in 228 open investigations, 543 arrests, 86 complaints, 121 
informations or indictments, and 94 convictions in both the Federal and 
State systems.
  Fisher is working on the implementation of the Adam Walsh Act. We all 
know John Walsh, what a tragic story he has lived through and, as a 
result of it, has become a national leader, well-known throughout this 
country for his work in the protection of children. So she is working 
now to create the mechanism to fully implement the Adam Walsh Act, 
which was passed by Congress just recently to combat child 
exploitation, and the Department's new initiative targeted at 
protecting children from predators, Project Safe Childhood, another 
time-consuming and challenging activity.

  Fisher serves as a key member of the Department of Justice 
Intellectual Property Task Force and oversees the Computer Crimes and 
Intellectual Property Section of the Criminal Division. Under Fisher's 
leadership, the Department has increased its prosecution of these cases 
and enhanced international partnerships in this area. It is important 
that we do operate internationally.
  As Assistant Attorney General in charge of the Justice Department's 
Criminal Division, Fisher developed and implemented a strategic plan to 
focus and prioritize the mission of the Division's approximately 750 
employees. This management plan has organized the Division around the 
following priorities and goals: Supporting the national security 
mission. Supporting the national security mission--that wasn't the No. 
1 goal of the Department of Justice Criminal Division when I was a 
prosecutor. This is as a result of the leadership of the President and 
the Attorney General and Alice Fisher.
  So the top goals are supporting the national security mission, 
protecting this country from attack, ensuring Government integrity, 
prosecuting fraud and corruption, ensuring market integrity. That is--
in the free market, the banks, financial communities, businesses, 
securities, making sure that there is integrity in that. They have a 
record of achievement. Combating violent crime is still a part of the 
duties, particularly gangs and drug trafficking and protecting against 
crimes on the Internet and crimes against children.
  So this is a very fine, hard-working public servant who gives her 
every waking hour to trying to promote justice and protecting this 
country from attack. What she can say and what she can't say in 
response to probing and fishing expeditions from Members of Congress 
about meetings and conversations and top-secret security activities 
that she may be involved in is not her decision; it is really the 
Executive Branch deciding how much of these actions should be made 
public. So it is not her fault.
  I submit to my colleagues that she wasn't involved in any of these 
issues that people are so hot about. She didn't set the policies. She 
didn't write the memos. She was lower down in the chain of command at 
that time. That wasn't her responsibility. She is being drawn into this 
now so that we can continue to have complaints about the efforts of 
this President and his team to aggressively find, identify, prosecute, 
and convict those who would threaten the people of this United States.
  So I am impressed with Alice Fisher. She was a young, aggressive 
woman when I met her. She didn't have a whole lot of experience. I 
questioned her about that. But I could sense that she had the drive to 
be successful, to serve our country, and she has utilized every 
opportunity she could to further the interests of law enforcement and 
justice in America. I think she is a good nominee. In a different time, 
she would go through just like that; it would not be a problem. But 
here we are with an election coming up, and the theme here is that this 
administration is abusing prisoners and being mean to unlawful 
combatants and terrorists, and they are trying to maintain that theme 
and drag her into it. They shouldn't do that.
  She needs to be confirmed. She needs to have the full authority of 
the office of chief of the Criminal Division of the Department of 
Justice. She will be

[[Page S9712]]

more effective if she has been confirmed and holds the office 
permanently. She will do a great job, I believe. Her record has proven 
that. I urge my colleagues to support this nominee.
  Mr. President, I thank the chair and yield the floor, and I note the 
absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SPECTER. Mr. President, I ask unanimous consent that the order 
for the quorum call be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. Mr. President, I have sought recognition to speak in 
support of the nomination of Alice Stevens Fisher to be Assistant 
Attorney General of the Criminal Division of the United States 
Department of Justice.
  Ms. Fisher has an outstanding academic record. She received a 
bachelor's degree from Vanderbilt in 1989. At Vanderbilt, she was a 
member of the Gamma Beta Phi Honorary Society. She received her law 
degree from the Catholic University of America's Columbus School of Law 
in 1992. She served as Note & Comment Editor of the Catholic University 
Law Review, which was a mark of distinction. After law school, she was 
an associate with Sullivan & Cromwell from 1992-1996.
  She served as Deputy Special Counsel to the United States Senate 
Special Committee to Investigate the Whitewater Development Corporation 
from 1995 to 1996.
  She was an associate of the law firm of Latham & Watkins from 1996 to 
2000, and was made a partner in 2001.
  From 2001 until 2003, she served as the Deputy Assistant Attorney 
General in the Criminal Division of the Department of Justice.
  She went back to Latham & Watkins from 2003 to 2005. On August 31, 
2005, she was appointed as the Assistant Attorney General for the 
Criminal Division via recess appointment, which is her current 
position.
  She is a member of a number of bar associations, and she has 
extensive writings on a number of subjects.
  I ask unanimous consent that a full statement of her qualifications 
be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

  Alice Stevens Fisher, Nominee--Assistant Attorney General, Criminal 
                                Division

       Alice Stevens Fisher was nominated by President Bush to be 
     Assistant Attorney General, Criminal Division, Department of 
     Justice on April 5, 2005. The President appointed Ms. Fisher 
     to that position via a recess appointment on August 31, 2005.
       Ms. Fisher has had a distinguished legal career and brings 
     over ten years of experience to the Department of Justice.
       After graduating from the Catholic University of America's 
     Columbus School of Law in 1992, Ms. Fisher became a member of 
     the law firm of Sullivan & Cromwell.
       In 1995, Ms. Fisher served as Deputy Special Counsel to the 
     U.S. Senate Committee Investigating Whitewater Development 
     Corporation and Related Matters, where she supported the 
     Senate's investigation and assisted in drafting the final 
     report.
       In 1996, Ms. Fisher returned to private practice and joined 
     the law firm of Latham & Watkins. At Latham, Ms. Fisher's 
     practice focused on the representation of corporations in 
     government investigations and complex civil litigation. In 
     2001 she became a partner.
       From 2001 until 2003, Ms. Fisher served as Deputy Assistant 
     Attorney General in the Criminal Division of the Department 
     of Justice.
       As Deputy Assistant Attorney General, she supervised the 
     Divisions Counter-Terrorism Section, Fraud Section, Appellate 
     Section, Capital Case Unit, and Alien Smuggling Task Force.
       In 2003, Ms. Fisher returned to Latham & Watkins as a 
     partner.
       On April 5, 2005, President Bush nominated Ms, Fisher to be 
     Assistant Attorney General, Criminal Division, Department of 
     Justice. She was appointed to that position via a recess 
     appointment on August 31, 2005.


                        Support for Alice Fisher

       ``It is with the greatest enthusiasm that I write this 
     letter in support of Alice Fisher. . . From personal 
     experience, I know that she will serve the President and the 
     country with great dedication, integrity, and talent. Her 
     judgment and skills as both a lawyer and a leader are 
     unparalleled.'' Michael Chertoff, Secretary to the Department 
     of Homeland Security.
       ``During my tenure as Solicitor General, I had the 
     privilege and pleasure of working with Ms. Fisher. . . I 
     found Ms. Fisher to be an extremely accomplished, able and 
     dedicated public servant. In my view, she is a superb choice 
     to head the Criminal Division and I enthusiastically urge 
     that the Committee and the full Senate vote to confirm her 
     appointment.'' Theodore B. Olson, former United States 
     Solicitor General.
       ``Ms. Fisher's experience as a litigator and policy-maker, 
     as well as her strong, positive relationship with the law 
     enforcement community, makes her an excellent choice to lead 
     the Criminal Division. The F.O.P. has no doubt that she will 
     continue to be an outstanding Assistant Attorney General, and 
     we urge the Judiciary Committee to expeditiously approve her 
     nomination.'' Chuck Canterbury, National President, Fraternal 
     Order of Police.
       ``From the commencement of my appointment, my staff and I 
     worked closely with Ms. Fisher, who at that time served as 
     Deputy Assistant Attorney General in the Criminal Division in 
     the Department of Justice. In all of my numerous dealings 
     with Ms. Fisher, I found her to be a person of tremendous 
     legal acumen and good judgment, extremely hard working, and a 
     person committed to upholding the highest standards of the 
     Department of Justice and the legal profession.'' Mike A. 
     Battle, United States Attorney for the Western District of 
     New York.
                                  ____


 Alice Stevens Fisher--Assistant Attorney General, Criminal Division, 
                         Department of Justice

       Birth: January 27, 1967, Louisville, KY
       Legal Residence: Virginia
       Education: B.A., Vanderbilt University, 1989, Gamma Beta 
     Phi Honorary Society
       J.D., Columbus School Of Law, Catholic University of 
     America, 1992, Note & Comment Editor, Catholic University Law 
     Review
       Employment: Associate, Sullivan & Cromwell, 1992-1996
       Deputy Special Counsel, U.S. Senate Special Committee to 
     Investigate
       Whitewater Development Corporation & Related Matters, 1995-
     1996
       Associate, Latham & Watkins, 1996-2000
       Partner, Latham & Watkins, 2001
       Deputy Assistant Attorney General, Criminal Division, 
     Department of Justice, 2001-2003
       Partner, Latham & Watkins, 2003-2005
       Assistant Attorney General, Criminal Division, Department 
     of Justice (recess appointment August 31, 2005), 2005-
     present.
       Selected Activities: Member, Virginia Bar Association, 
     1992-1996
       Member, American Bar Association, 1992-1996, 1998-Present
       Barrister, Edward Bennett Williams Inn of Court, 2002-
     Present
       Member, The Kentuckian Society
       Member, The Federalist Society, National Practitioner's 
     Advisory Council, 2004.

  Mr. SPECTER. Ms. Fisher's nomination has been delayed for a very long 
period of time. In the meantime, Ms. Fisher has been serving as 
Assistant Attorney General for more than a year. She has handled some 
very high profile investigations and has done an outstanding job.
  When she appeared before the Judiciary Committee, she presented 
herself very well. She is extremely well-qualified for the position.
  Since her nomination, some objections have been raised and her 
nomination has been delayed because an email memorandum, authored by an 
FBI agent, lists her as an attendee at a meeting where Department of 
Defense Guantanamo interrogation techniques were discussed. Ms. Fisher 
was not responsible for the interrogations conducted at Guantanamo by 
the Department of Defense or the FBI. She did not approve or direct the 
interrogation or interrogation techniques, and she was not involved in 
the approval of the Office of Legal Counsel's memorandum, the so-called 
Bybee memorandum.
  Senator Levin, before withdrawing a hold on Ms. Fisher's nomination, 
wanted to talk to the FBI agent who was identified in the file in 
connection with Ms. Fisher's nomination. However, when the matter 
became protracted and delayed, the Attorney General asked me if I would 
meet with Senator Levin and the FBI agent. It was the practice of the 
Department of Justice not to make an FBI agent available to Senators 
but only to the chairman of the Judiciary Committee. I decided to honor 
that request even though I did not see the connection between Ms. 
Fisher and either the FBI or the Department of Defense's interrogation 
techniques.
  Senator Levin wished to have the FBI agent appear, not with the 
customary representative from the Department of Justice, Office of 
Legislative Affairs, but instead with someone from the Department of 
Justice Inspector General's Office. We accommodated Senator Levin by 
having a representative from the FBI's General Counsel's office attend 
the meeting. We also accommodated Senator Levin on the location of the 
meeting, which was held

[[Page S9713]]

in his office and I was happy to meet there.
  The interview with the FBI agent lasted approximately 1 hour, during 
which we had an extensive discussion about what the FBI agent knew 
about interrogation techniques. The meeting barely, barely, barely 
touched on Ms. Fisher. Nothing in the interview showed any misconduct 
or impropriety on the part of Ms. Fisher. Nothing contradicted her 
testimony. She was barely involved.
  Following that meeting, Senator Levin made a request to see two other 
individuals who had no connection with Ms. Fisher and no connection 
with her nomination.
  I am glad we have come to this point. I have included extensive 
documentation in the record demonstrating the way the Department of 
Justice responded in honoring Senator Levin's requests. I have worked 
with Senator Levin for 26 years. He is a very thorough and effective 
Senator. When he wanted to see this FBI agent, we worked it out so that 
he saw the FBI agent.
  I am glad the hold is off. I understand we are going to vote on Ms. 
Fisher. I believe this comes under Shakespeare's edict: All's well that 
ends well. And now we will go on to work on some other important 
matters, such as trying to get habeas corpus in effect on the 
Guantanamo issue.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan is recognized.
  Mr. LEVIN. Mr. President, I thank my good friend from Pennsylvania 
for his words.
  After I tried for about a year to get the Attorney General to make 
available an FBI agent so we could talk to him about a memo that he 
wrote naming Ms. Fisher, naming three other members of the Criminal 
Division that she was the Deputy Director of, as being very aware of 
the debate between the FBI and the Department of Defense over 
interrogation practices at Guantanamo, I was unsuccessful for about a 
year to simply get information.
  Stonewalling has occurred in this case. The delay that has occurred 
in this case is directly attributable to the refusal of the Department 
of Justice to provide information to this Senator.
  After that meeting--and I thank the good Senator from Pennsylvania 
for arranging it; it wouldn't have happened without him--after that 
meeting, something became clear which needed to be clarified. I sent a 
letter to the Department of Justice on that matter. It is a very 
important matter involving whether Mr. Nahmias, the counsel to the 
Criminal Division who was aware of the tactics which were being used at 
Guantanamo, was personally involved in knowing about this debate 
between the FBI--it did not like what it saw--which objected to the 
tactics being used and was very vehement about it and did not want his 
agents to participate in the interrogations and wrote e-mails to the 
Department of Justice saying: You cannot believe what is going on down 
here. There was this vehement dispute between FBI and the Department of 
Defense on interrogation tactics. This is the background for what is in 
the headlines today.

  At the discussion which occurred in my office, which Senator Specter 
accurately described, the FBI agent indicated that Ms. Fisher's 
connection related to one discussion he could remember about a specific 
event, not abusive interrogation techniques but, rather, about whether 
one of the detainees down there had been involved in September 11. That 
is what his recollection was. We accept that. We have no basis to not 
accept it.
  However, something came out at that July meeting which is critically 
important. He said he had regular discussions on this subject about the 
detainee treatment at Guantanamo with the counsel to the Criminal 
Division, David Nahmias, and another Deputy Director, Bruce Swartz. We 
simply wanted to find out from the two of them, particularly from Mr. 
Nahmias since he served in the same department of the Justice 
Department with Alice Fisher, and the Deputy Director of that 
department, whether he, David Nahmias, had shared the information that 
he got from the FBI that wrote the e-mail, with the Deputy Director of 
that department.
  For reasons that I cannot fathom, the Justice Department is still 
stonewalling answering questions which are directly related to the 
nomination. That question is, Did Mr. Nahmias and Mr. Swartz share with 
the Deputy Director of their own department, the Criminal Justice 
Department, what they had learned from this FBI agent about the raging 
dispute going on between the FBI and the Department of Defense over 
these tactics?
  We asked the Attorney General if we could talk with Mr. Nahmias. By 
the way, this is the fourth request I had made to meet with Mr. 
Nahmias. I started in May of 2005 because he was named, along with Ms. 
Fisher, and Mr. Swartz as having been present at meetings during which 
these tactics were discussed. So he was right in that e-mail. We asked 
four times to see Mr. Nahmias. We have been rejected every time.
  But now, in my office, we learned something else which is 
significant, which is relevant, which is going to go unanswered. It is 
going to go unanswered because the Department of Justice will not even 
answer the questions which I want them to put to Mr. Nahmias.
  What I finally have done out of exasperation was to write to the 
Attorney General saying: You obviously are not going to produce two 
relevant people so I can ask them very basic information--did they 
share the information they had about these abuses and these raging 
debates between FBI and DOD. You are not going to allow me to ask those 
two people whether they shared that with the Deputy Director of their 
department. You are simply not going to do it. Would you at least ask 
the two of them questions in writing about whether they shared that 
information with Ms. Fisher?
  The answer of the Department of Justice is silence--stone, cold, 
silence--to my request.
  That is where we are. I will be voting against this nomination 
because of the stonewalling by the Department of Justice of legitimate, 
reasonable requests for information which are still outstanding, 
relative to Nahmias and to Swartz.
  That is unacceptable. It puts us in a position of voting on nominees 
without relevant information which we should have. The delay--and I 
emphasize this--the delay in this matter is not mine. The delay is the 
refusal of the Department of Justice to provide information, to provide 
witnesses for a year and a half.
  Without the help of my good friend from Pennsylvania, Senator 
Specter, we never could have even received the information that we got 
from the FBI agent, and, as he knows, I am grateful to him for that. I 
can now only hope that he will join in asking the Department of 
Justice--it can come after this nominee's vote--I would hope he would 
consider joining the request of the Department of Justice that we have 
this information for the record as being relevant to the matters we are 
debating.
  I close by saying I believe it is unacceptable, it is wrong for the 
Department of Justice to deny the Senate relevant information. We are 
going to end up voting now on this nomination of Ms. Fisher without it. 
It should not be that way. I will express my opposition to the 
stonewalling tactics of the Department of Justice by voting no on this 
nomination, again, with my thanks to the chairman of the Judiciary 
Committee for the help that he did provide in this matter.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, there are many things I can say in 
response to what the distinguished Senator from Michigan has said, but 
silence is the preferable course.
  Instead, I ask, as the representative of the majority leader, to set 
the vote at 5:45 with the expectation there will be no other speakers. 
I ask unanimous consent we set the vote at 5:45.
  Mr. LEVIN. I understand we have a thumbs up from the rear of the 
Chamber. I have no objection.
  Mr. SPECTER. People who run the Senate, staffers, have just consented 
to the request.
  Mr. LEVIN. They didn't consent, but they indicated to me there was no 
objection, to be technically correct.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BUNNING. Mr. President, I speak today on the nomination of Ms. 
Alice Fisher to be Assistant Attorney General for the Criminal Division 
at the

[[Page S9714]]

Department of Justice. Ms. Fisher, a native from Louisville, KY, is 
without question very well qualified to fill this position. As a fellow 
Kentuckian, it is an honor to address her nomination today, and I give 
her my full support.
  I firmly believe that Ms. Fisher possesses the qualifications needed 
for this position. Her dedication and personal drive stand as an 
example to us all.
  Ms. Fisher has served as Assistant Attorney General for over a year 
now. In this time she has coordinated with law enforcement agencies on 
a variety of issues, including antiterrorism prosecutions, public 
corruption cases, and child pornography cases.
  Prior to this appointment, Ms. Fisher served within the Department of 
Justice managing both the Counterterrorism and Fraud Sections of the 
Department. In this time, she was responsible for coordinating the 
Department's national counterterrorism activities, including matters 
related to terrorist financing and the USA PATRIOT Act.
  Throughout her tenure at the Department of Justice, Ms. Fisher has 
shown time and time again that she is a true leader and leads by 
example. Many of her colleagues testified before Congress this past 
year about her unwavering work habits and her true commitment to 
justice.
  This is the type of leader that we need in our Government. I urge my 
colleagues across the aisle who have held up her nomination in the past 
to not let partisan politics get in the way this time. We need to move 
forward with her nomination. Not only does she have a proven record, 
but it was approved overwhelmingly by the Judiciary Committee, and now 
she deserves a fair up-or-down vote on the Senate floor.
  I am confident that when she receives this vote that she will be 
confirmed, and I wish her continued success in her position.
  Mr. SPECTER. Mr. President, I will yield back my time.
  Mr. LEVIN. I yield back my time, also. I am willing to do that as 
Senator Specter has yielded his back. What time remains?
  The PRESIDING OFFICER. The Senator from Vermont has 13 minutes. The 
minority leader has 59 minutes. The majority leader has 27 minutes.
  Mr. LEVIN. I wonder if the Senator from Pennsylvania would agree that 
we can put in a quorum call and the time be deducted proportionally 
from all of the remaining speakers.
  Mr. SPECTER. That is acceptable. Having set the vote at 5:45, we have 
given our colleagues ample notice. If somebody wants to speak in the 
next 14 minutes, they certainly would be at liberty to do that. My 
hunch is that we will have a quorum call for 14 minutes. The important 
thing is that we have finished the discussion on a reasonably 
harmonious note.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. GREGG. 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. GREGG. Mr. President, I ask unanimous consent that we proceed to 
the vote.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. GREGG. Mr. President, I ask for the yeas and nays on the 
nomination.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Alice S. Fisher, of Virginia, to be an 
Assistant Attorney General? On this question, the yeas and nays have 
been ordered. The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. McCONNELL. The following Senator was necessarily absent: the 
Senator from Minnesota (Mr. Coleman).
  Further, if present and voting, the Senator from Minnesota (Mr. 
Coleman) would have voted ``yea.''
  Mr. DURBIN. I announce that the Senator from Hawaii (Mr. Akaka), the 
Senator from Massachusetts (Mr. Kennedy), and the Senator from 
Louisiana (Ms. Landrieu) are necessarily absent.
  I further announce that if present and voting, the Senator from 
Massachusetts (Mr. Kennedy) would vote ``nay.''
  The PRESIDING OFFICER (Mr. Chambliss). Are there any other Senators 
in the Chamber desiring to vote?
  The result was announced--yeas 61, nays 35, as follows:

                      [Rollcall Vote No. 251 Ex.]

                                YEAS--61

     Alexander
     Allard
     Allen
     Bayh
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Burr
     Chafee
     Chambliss
     Coburn
     Cochran
     Collins
     Cornyn
     Craig
     Crapo
     DeMint
     DeWine
     Dole
     Domenici
     Dorgan
     Ensign
     Enzi
     Feingold
     Frist
     Graham
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Isakson
     Kyl
     Lincoln
     Lott
     Lugar
     Martinez
     McCain
     McConnell
     Murkowski
     Nelson (NE)
     Pryor
     Roberts
     Salazar
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Thune
     Vitter
     Voinovich
     Warner

                                NAYS--35

     Baucus
     Biden
     Bingaman
     Boxer
     Byrd
     Cantwell
     Carper
     Clinton
     Conrad
     Dayton
     Dodd
     Durbin
     Feinstein
     Harkin
     Inouye
     Jeffords
     Johnson
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Menendez
     Mikulski
     Murray
     Nelson (FL)
     Obama
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Stabenow
     Wyden

                             NOT VOTING--4

     Akaka
     Coleman
     Kennedy
     Landrieu
  The nomination was confirmed.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Mr. President, I ask unanimous consent that the Senate 
now proceed to a period of morning business with Senators permitted to 
speak for up to 10 minutes each.
  I now request the opportunity to address the Senate under that 
provision.
  The PRESIDING OFFICER. If the Senator will withhold just a minute, 
please.
  Mr. WARNER. Yes, Mr. President, without losing my right to the floor.
  The PRESIDING OFFICER. The President is notified of the Senate's 
action with respect to this nomination.

                          ____________________