[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.
____________________