[Congressional Record Volume 154, Number 154 (Friday, September 26, 2008)]
[Senate]
[Pages S9877-S9878]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                         NOMINATION DISCHARGED

  Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the 
Senate proceed to executive session and that the Intelligence Committee 
be discharged of PN1791, the nomination of J. Patrick Rowan, to be an 
Assistant Attorney General; that the Senate then proceed to the 
nomination; that the nomination be confirmed and the motion to 
reconsider be laid upon the table; that any statements relating to the 
nomination be printed in the Record, as if read; that the President be 
immediately notified of the Senate's action; that the Senate resume 
legislative session; and that no further motions be in order.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The nomination considered and confirmed is as follows:


                         department of justice

       J. Patrick Rowan, of Maryland, to be an Assistant Attorney 
     General.

  Mr. LEAHY. Mr. President, today, the Senate confirmed the nomination 
of J. Patrick Rowan to be Assistant Attorney General in charge of the 
National Security Division at the Department of Justice.
  We continue in our efforts to rebuild the Department of Justice after 
the scandals of the Gonzales era and the Bush administration. We have 
already confirmed 35 executive nominations so far this Congress, 
including the confirmations of 12 U.S. attorneys, seven U.S. Marshals, 
and a new Attorney General, Deputy Attorney General, and Associate 
Attorney General. We are poised to add to this total, having reported 
out of committee this month another 6 high-level executive nominations, 
including the nomination of Greg Garre to be Solicitor General of the 
United States, one of the highest and most prestigious positions at the 
Department of Justice.
  At the beginning of this Congress, the Judiciary Committee began its 
oversight efforts. Over the 9 nine months, our efforts revealed a 
Department of Justice gone awry. The leadership crisis came more and 
more into view as I led a bipartisan group of concerned Senators to 
consider the United States Attorney firing scandal, a confrontation 
over the legality of the administration's warrantless wiretapping 
program, the untoward political influence of the White House at the 
Department of Justice, and the secret legal memos excusing all manner 
of excess and subverting the rule of law.
  What our efforts exposed was a crisis of leadership that took a heavy 
toll on the tradition of independence that has long guided the Justice 
Department and provided it with safe harbor from political 
interference. It shook the confidence of the American people. Through 
bipartisan efforts among those from both sides of the aisle who care 
about federal law enforcement and the Department of Justice, we joined 
together to press for accountability.
  That resulted in a change in leadership at the Department, with the 
resignations of the Attorney General and virtually all of its highest-
ranking officials.
  But the oversight efforts did not complete our work. We continue in 
the waning days of the Bush administration to try to return to the 
right track and ensure that the rule of law is restored as the guiding 
light for the work of the Department. Mr. Rowan, who currently serves 
as acting head of the National Security Division, has an opportunity 
now and if confirmed to playa significant role in that restoration.
  In the wake of the tragic attacks on September 11, 2001, and toward 
the end of President Bush's first year in office, this country had an 
opportunity to show that we could fight terrorism, secure our Nation, 
and bring the perpetrators of those heinous acts to justice, all in a 
way that was consistent with our history and our most deeply valued 
principles. A number of us reached out to the White House in an effort 
to craft a thoughtful, effective bipartisan way forward. The White 
House, supported by the Republican leadership in Congress, chose 
another path. They diverted our focus from al-Qaida and capturing Osama 
bin Laden to war and occupation in Iraq. They chose to enhance the 
power of the President and to turn the Office of Legal Counsel, OLC, at 
the Department of Justice into an apologist for White House orders--
from the warrantless wiretapping of Americans to torture. In my view, 
that approach has made our country less safe.

  We are all too familiar now with the litany of disastrous actions by 
this administration: rejecting the Geneva Conventions--which the 
President's counsel referred to as ``quaint''--against the advice of 
the Secretary of State; establishing a system of detention at 
Guantanamo Bay in an effort to circumvent the law and accountability; 
attempting to eliminate the Great Writ of habeas corpus for any non-
citizen designated by the President as an enemy combatant; setting up a 
flawed military commission process that, after 6 years, has finally 
resulted in its first trial of a terrorist after more than 80 have been 
tried successfully in our court system; and permitting cruel 
interrogation practices that in the worst cases amount to officially 
sanctioned torture.
  These misguided actions and policies have rested upon a legal edifice 
built in secret by OLC opinions that have turned the rule of law on its 
head by interpreting laws Congress has passed. This week the Judiciary 
Committee authorized subpoenas relating to those opinions. For the 
better part of 8 years, OLC's work has largely been kept secret from 
this oversight Committee, despite our efforts. Keeping binding 
interpretations of secret law from Congress is wrong.
  The advice we have seen from OLC has been deeply flawed, sloppy, and 
flat out wrong--but it has been permitted to happen because secrecy has 
prevented our oversight. Unjustified secrecy continues to prevent the 
review by this Committee that would provide a check and some control on 
how the administration is interpreting the law that is Congress's 
constitutional responsibility to write. That obsessive secrecy even 
prevents us from knowing the subject matter on which OLC has written 
opinions.
  There is no justification for keeping OLC legal interpretations 
secret from this committee, let alone the index I have long sought. 
That is why I sought and now have the authorization for subpoenas after 
years of being rebuffed and slow-rolled in our attempts to find out how 
this administration has interpreted and applied the laws written by 
Congress.
  Another one of the misguided policies of the Bush-Cheney 
administration was rebuked earlier this summer in the Supreme Court's 
5-4 decision in Boumediene v. Bush. That decision reaffirmed our core 
American values by concluding that detainees at Guantanamo have the 
right to bring habeas corpus claims in Federal court. I applauded that 
decision because I have maintained from the beginning that the 
provisions of the Military Commission Act that purported to strip away 
those rights were unconstitutional and un-American.
  This should not have been a hard decision, but I hope Mr. Rowan 
understands that it was a vitally important one. The Courts have a long 
history of considering habeas petitions and of handling national 
security matters, including classified information. I have great 
confidence in our system of justice and its ability to handle these 
issues. The administration made this mess by seeking to avoid judicial 
review at all costs, causing years of delay and profound uncertainty. 
It has now been rebuked four times by the Supreme Court. Habeas Corpus 
is the ultimate guarantee of fairness and a check on executive excess.
  It is vital that we ensure that we have a functioning, independent 
Justice Department, and that this sad era in the history of the 
Department is not repeated. We have seen what happens when the rule of 
law plays second fiddle to a President's agenda and the partisan 
desires of political operatives. It is a disaster for the American 
people. Both the President and the Nation are best served by a Justice 
Department

[[Page S9878]]

that provides sound advice and takes responsible action, without regard 
for political considerations--not one that develops legalistic 
loopholes and ideological litmus tests to serve the ends of a 
particular administration.
  I congratulate Mr. Rowan and his family on his confirmation today.

                          ____________________