[Congressional Record Volume 153, Number 78 (Friday, May 11, 2007)]
[Senate]
[Pages S6004-S6006]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              POLITICIZATION OF THE DEPARTMENT OF JUSTICE

  Mr. WHITEHOUSE. Mr. President, competence, independence, and sound 
judgment are the lodestar of the administration of justice in this 
country. Unfortunately, over the past few months, I and many Americans 
have been forced to question on all three counts those whom this 
President has appointed to lead the Department of Justice. Indeed, with 
each passing day, we sense more and more that something is gravely 
wrong.
  For example, we have learned about the misuse and abuse of the 
Department's power to issue national security letters under the PATRIOT 
Act--which, even under the most legitimate and benign circumstances, 
represents a truly imposing authority. As you know, a national security 
letter, or NSL, is a Government demand for private information, issued 
without a warrant to third parties such as banks, phone companies, and 
Internet service providers. In March, the Department of Justice's 
inspector general reported that NSLs were being ``seriously misused.'' 
Among other things, there were no clear guidelines for issuing national 
security letters. They were issued without proper authorization, there 
was sloppy recordkeeping by the FBI, and there were no procedures for 
purging a citizen's private information if the investigation was 
closed.
  We have also, of course, learned about the unprecedented firings of 
eight U.S. attorneys--dismissals which seem to have been motivated by 
politics, marred by incompetence, or, more likely, both.
  The details of the Department's misjudgments in this matter, and 
particularly the degree to which partisan politics has infiltrated this 
Department, become more numerous and more damaging to the Attorney 
General's credibility every day. But the politicization of the 
Department should come as no surprise when we examine how the rules 
governing initial contacts between the White House and the Department 
of Justice on non-national security-related investigations and cases--
traditional criminal cases--have changed since President Bush took 
office.
  During previous administrations, there were strict rules governing 
contacts between the White House and the Department of Justice on 
investigations and cases--and for good reason. A strong firewall is 
necessary to prevent undue and untoward efforts to inject politics into 
the administration of justice. During the Clinton administration, this 
firewall was articulated in a September 1994 letter from Attorney 
General Janet Reno to White House Counsel Lloyd Cutler. It is my 
understanding that credit goes to Senator Hatch, then chairman of the 
Judiciary Committee, for his interest in seeing this policy confirmed 
in this way. So this has been a continuing and bipartisan concern, this 
question of the firewall between the White House and the Department of 
justice. The Reno letter stated:

       Initial communications between the White House and the 
     Justice Department regarding any pending Department 
     investigation or criminal or civil case should involve only 
     the White House counsel or deputy counsel, or the President 
     or Vice President, and the Attorney General or Deputy or 
     Associate Attorney General.

  That policy is represented by this chart. On the White House side, 
the only people authorized to have these initial discussions on 
criminal cases are the President, Vice President, Deputy White House 
Counsel, and the White House Counsel. Within the Department of Justice, 
it is only the Attorney General, Deputy Attorney General, and the 
Associate Attorney General--a grand total of seven people.
  As I noted during the Attorney General's testimony before the 
Judiciary Committee last month, that rule was changed in an April 2002 
memo from Attorney General Ashcroft. The new policy permits initial 
communications on cases and investigations between the Office of the 
Deputy Attorney General and the office of the counsel to the President, 
and it also states that staff members of the Office of the Attorney 
General, if so designated by the Attorney General, may communicate 
directly with officials and staff of the Office of the President, the 
Office of the Vice President, and the office of counsel to the 
President.
  The new rule is represented by this other chart. There are over 400 
people in the White House now authorized to have those conversations 
with the Department of Justice, where before it was 4. Before, it was 
the very top administration officials in the White

[[Page S6005]]

House--the President, Vice President, Attorney General, White House 
Counsel, and Deputy White House Counsel. Who knows who all these other 
folks are. One of these boxes is Karl Rove. That makes you wonder. Down 
here, these are all the staff now within the Department of Justice who 
are authorized to have those communications, whereas before it was 
limited to the Attorney General, Deputy Attorney General, and Associate 
Attorney General.
  These charts demonstrate the extraordinary latitude now permitted the 
White House and Department of Justice to discuss sensitive 
investigations and prosecutions. With the clear exception of 
discussions related specifically to national security, where one can 
understand you might want to have discussion also with the White House 
when it is a national security issue that would involve the military 
and other agencies of Government, for regular criminal cases and for 
prosecutions, I am hard-pressed to imagine any reason the Clinton-era 
rule needed expansion. Indeed, when I put this question to Attorney 
General Gonzales when he was before our committee, he had no answer.
  These are not just bureaucratic niceties. Rules governing conduct 
within organizations have an obvious and direct effect on the conduct 
of people within those organizations. Clearly, the politicization of 
the Department has been either a byproduct or a cause of this changed 
rule. After all, the more political people you allow to weigh in on 
sensitive investigations and cases, the more you run the risk--or, 
indeed, make it possible--that those investigations and cases become 
inappropriately politicized.
  So this brings us to FISA, the Foreign Intelligence Surveillance Act. 
Given all this, perhaps I should not have been surprised when I 
reviewed the administration's proposed Foreign Intelligence 
Surveillance Act ``modernization'' bill and compared it to the current 
FISA statute.

  Under the current statute, title 50 of the U.S. Code, section 1804, 
passed in 1978, each application for a court order approving electronic 
surveillance under FISA must include the approval of the Attorney 
General, plus a number of required statements and certifications. One 
of those is a certification that information sought is ``foreign 
intelligence information'' and that such information ``cannot be 
reasonably obtained by normal investigative techniques.'' That 
certification--a critical proceeding with a FISA application--can 
currently be made by only a few people:

       The Assistant to the President for National Security 
     Affairs or an executive branch official or officials 
     designated by the President from among those executive 
     officers employed in the area of national security or defense 
     and appointed by the President with the advice and consent of 
     the Senate.

  That is actually a grand total of nine people, all senior level, all 
with a lot at stake in making sure they do the right thing. This makes 
perfect sense, given the importance of such a certification.
  Now, let's take a look at the administration's proposed FISA 
``modernization.'' That bill will allow the following people to certify 
applications for court orders under FISA:

       The assistant to the President for National Security 
     Affairs or an executive branch official or officials 
     designated by the President to authorize electronic 
     surveillance for foreign intelligence purposes.

  So any executive branch official or officials designated by the 
President can now authorize--or could if this passed--electronic 
surveillance for foreign intelligence purposes.
  According to the Congressional Research Service, the most 
conservative estimate of the number of people who could be called 
``executive branch officials'' under this definition is 9,050. The 
number is actually probably greater than that. So, in other words, if 
the administration had its way, more than 9,000 people would be 
eligible for designation by the President to certify an application for 
a warrant to the FISA Court. That is what this chart demonstrates.
  Just to give you an idea, over here on this chart, we are talking 
about individuals--each block represents a person. Here, because the 
numbers are so big, we have divided by nine. This block represented the 
existing FISA certification authority to the nine Presidentially 
appointed and Senate-confirmed individuals who qualified, and we 
reduced it to one. Each one of these blocks would also represent nine, 
so multiply by nine. I am probably stretching my limits on the floor by 
using two charts at the same time. If I had to represent this with 9 
people here and 9,000 here, I would have charts up to the ceiling of 
this room. That is the scale they are trying to change this to. By the 
way, one of these people, again, would be Karl Rove.
  What we have is another example of the Bush administration trying to 
break down established barriers that defend fair, professional, and 
responsible decisions in national security and in the administration of 
justice.
  Making matters worse, the administration's FISA bill would greatly 
expand the powers of the Attorney General in a number of key areas.
  I don't think I need to say again that this Attorney General has 
thoroughly and utterly lost my confidence. I think he has also lost the 
confidence of this Chamber and of the American people. In my view, he 
does not merit any greater authority, particularly where that authority 
involves the power of the Federal Government to invade personal privacy 
for the purpose of secret wiretaps. We gave him that kind of authority 
when we gave him the authority with the national security letters. Look 
what he did with it. That authority was ``seriously misused.'' This is 
the man who has proven he cannot be trusted with these authorities.
  The administration's bill would give the Attorney General expanded 
powers to hold on to information that was obtained without a warrant or 
obtained unintentionally. It would grant blanket immunity to any person 
or company that, from September 11 on, provided the intelligence 
community with any records, facilities, or assistance purportedly 
intended to protect against a terrorist attack. This blanket immunity 
power would allow the Attorney General to shut down a number of 
lawsuits and State investigations looking into whether and how 
companies provide detailed records about their customers' private 
communications.
  It would allow powers to transfer any case before any court 
challenging the legality of classified communications intelligence 
activity, or any case in which the legality of such activity is even an 
issue, from the court it is filed in to the secret Foreign Intelligence 
Surveillance Court. This would be an extraordinary and unprecedented 
power for the Attorney General to forum-shop by grabbing cases out of 
open court and placing them before the secret FISA Court.
  Finally, it would authorize the Attorney General to conduct 
surveillance directed toward foreign powers with fewer safeguards to 
ensure the surveillance will not capture the contents of Americans' 
communication.
  This is just a sampling of the ways in which this bill would expand 
the Attorney General's authority under that FISA statute. We count at 
least 10 expansions of power.
  Mr. President, the Department of Justice wields some of the most 
powerful tools held by any Federal agency.
  The prosecutive power is probably the most severe power the 
Government holds. Among these powers is included the power to issue 
national security letters, the power through U.S. attorneys to 
prosecute criminal cases, and the power to help administer the Foreign 
Intelligence Surveillance Act.
  These awesome powers must be used with competence, independence, and 
sound judgment. I am afraid the current Attorney General has not lived 
up to those high standards, and for that reason, I cannot support 
legislation that would increase this Attorney General's authority.
  For that reason, I also call on him again to step down so we can 
begin to put this sad episode in the history--the proud history--of the 
Department of Justice behind us.
  The Attorney General's resignation will not solve all the problems at 
the Department of Justice or the White House, but, regrettably, I have 
come to the conclusion it is a necessary first step.
  I yield the floor, and I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.

[[Page S6006]]

  Ms. COLLINS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Ms. COLLINS. Mr. President, it is my understanding that we are now in 
morning business; is that correct?
  The ACTING PRESIDENT pro tempore. The Senator is correct.
  The Senator from Maine is recognized.
  Ms. COLLINS. I thank the Chair.
  (The remarks of Ms. Collins pertaining to the introduction of S. 1369 
are located in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  Ms. COLLINS. Mr. President, I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DORGAN. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.

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