[Congressional Record Volume 155, Number 43 (Wednesday, March 11, 2009)]
[Senate]
[Pages S3018-S3019]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                                Earmarks

  Mr. WEBB. Madam President, I rise to address the recent debate we 
have had on the Omnibus appropriations bill with respect to earmarks. 
The premise seems to be, for those who have criticized the earmarks 
process, that this is pork. Sometimes it is; sometimes it is not. But I 
would start first with the Constitution.
  There is nothing in the Constitution that says the executive branch 
of Government should appropriate funds or decide which funds should be 
spent. That is a procedure that has evolved over the centuries because 
of the complexities of Government, where the executive branch looks at 
its needs and comes to the Congress and asks for appropriations. 
Earmarks take place when individual Members of Congress, exercising 
their authority to appropriate under the Constitution, decide and 
recommend that worthwhile programs in an ideal case should be included 
in a budget process, programs that have not been considered or included 
by the executive branch or through other processes.
  For instance, I was able, last year, along with Senator John Warner, 
now retired, to bring $5 million into a rural area of Tidewater, VA, so 
they could put broadband in. Broadband is something we know all 
Americans who want to compete for their future and contribute equally 
need to have. It didn't make it into anybody's bill. Who is thinking 
about sparsely populated areas such as rural Virginia? Yet we were able 
to bring a lot of benefit to those who otherwise would not have 
received it.
  What I would ask my colleagues, particularly those who have become so 
adamant in their concern over the earmarks process, to consider is, 
let's take a look at the budget that comes to the Congress. Is there 
pork in the budgets that come over, pork that comes through, in some 
cases, unnecessary influence or individual discretion? You bet there 
is.
  I say that as someone who spent 5 years in the Pentagon, 4 years of 
which I was on the Defense Resources Board where on any given day we 
were implementing a budget, arguing a budget in the Congress, and 
developing the next year's budget. I offer an example of a situation 
that my staff has been following for the last 10 months and use it as 
an invitation to colleagues to join me in looking at where there can be 
abuses of discretion and where there can be a lot of money that can be 
saved.
  Ten months ago, on May 21, there was an article in the Wall Street 
Journal that talked about Blackwater Worldwide attempting to obtain 
local approval for a new training center in San Diego, CA. We all 
remember Blackwater. They are an independent contractor that has done 
more than a billion dollars of business since the Bush administration, 
the most recent Bush administration took office. I became curious about 
this project, first, because I had seen reports of what a very high 
percentage of the Blackwater contracts had been awarded were either 
noncompete or minimal compete and the high volume number, more than a 
billion of them. And also the fact that having at one time been 
Secretary of the Navy, they were apparently wanting to build a training 
center so they could train Active-Duty sailors how to defend themselves 
onboard a ship.
  Having spent time in the Marine Corps, I immediately started thinking 
about what it would have been like to have a nonmilitary contractor 
teaching me how to do patrolling when I was going through basic school 
in Quantico all those years ago. It didn't fit.
  I started asking around. The first thing I found out was, this was a 
contract from the Navy that was worth about $64 million. I wrote a 
letter to Secretary Gates. I said: Is this Blackwater program in any 
way authorized or funded by U.S. tax dollars? The answer came back, 
yes, obviously. I asked: Is there specific legislative authorization 
for it? Because I couldn't find any, as a member of the Armed Services 
Committee. The answer was no. According to Secretary Gates, this 
activity falls under the broad authorization provided to the Secretary 
of Defense and the Secretaries of the military departments to procure 
goods and services using appropriated funds and prescribed procedures 
for those procurements.
  Then I asked him in this letter: Is there a specific appropriation, 
either in an appropriations bill or through an earmark? The answer is: 
No, there was no specific appropriation or earmark directing this 
effort.
  As we started to peel this back, here is what we found. An 
individual, an SCS, midlevel individual in the Department of the Navy 
had the authority to approve this type of a program up to the value of 
$78 million, without even having a review by the Secretary of the Navy. 
This was not an authorized program. It was not an appropriated program. 
It was money that came out of a block of appropriated funds for 
operation and maintenance that then somebody in the Navy said was 
essential to the needs of the service, the needs of the fleet, which is 
a generic term.
  I ask my colleagues who are so concerned about some of the pork 
projects or earmarks process here, which has gained a great deal of 
visibility since I have been here over the past 2 years and 
transparency, to join me in taking a look at these sorts of contracts. 
When a midlevel person in the Pentagon has the authority to approve a 
program that hasn't been authorized and hasn't been appropriated up to 
the value of $78 million and not even have the oversight of the 
Secretary of that service, that is where you see the potential for true 
abuse of the process. That is where we need to start focusing our 
energies as a Congress.
  Mr. REID. Madam President, today we debate the nomination of David 
Ogden to be the Deputy Attorney General of the United States.
  Mr. Ogden is highly qualified for this important job. He is a 
graduate of Harvard Law School and clerked on the Supreme Court for 
Justice Harry Blackmun. During the Clinton Administration, he served as 
the Assistant Attorney General for the Civil Division and as chief of 
staff to the Attorney General.
  He also previously served as Deputy General Counsel at the Department 
of Defense, so he has a keen appreciation for the national security 
issues that he will face at DOJ. He has an excellent reputation among 
his fellow lawyers and is supported by a number of former Republican 
Justice Department officials.
  It is surprising to me that we need to spend more than a full day 
debating

[[Page S3019]]

this obviously qualified nominee. Mr. Ogden was favorably reported by 
the Judiciary Committee by a vote of 14-5, so it seems clear he will be 
confirmed. But apparently some far-right advocates have made this 
nomination more controversial than it should be.
  As I understand it, those who oppose this nominee disagree with 
positions he took on behalf of some of his clients, including media 
organizations. In my view, that is a very unfair basis for opposing a 
nominee. As a former practicing lawyer, I feel strongly that a lawyer 
should not be held personally responsible for the views of his clients.
  President Obama deserves to have his advisors, especially members of 
his national security team, in place as quickly as possible. I urge 
confirmation of this outstanding nominee.
  Mr. LEAHY. Madam President, even after abandoning their the ill-
conceived filibuster of President Obama's nomination of David Ogden to 
be Deputy Attorney General, we still hear Republican Senators making 
scurrilous attacks against Mr. Ogden, launched by some on the extreme 
right.
  As I said on the Senate Floor earlier, David Ogden is a good lawyer 
and a good man. He is a husband and a father. Yet, regrettably and 
unbelievably, we still hear chants that he is a pedophile and a 
pornographer. Those charges are false and they are wrong. Senators know 
better than that.
  Special interests on the far right have distorted Mr. Ogden's record 
by focusing only on a narrow sliver of his diverse practice as a 
litigator spanning over three decades. Dating back to the 1980s, Mr. 
Ogden's practice has included, for example, major antitrust litigation, 
counseling, representation and authorship of a book on the law of trade 
and professional associations, international litigation and dispute 
resolution, False Claims Act and Export Controls Act investigations, 
and a significant practice in administrative law. In other words, he 
has been a lawyer, representing clients. For the last 8 years, since 
leaving Government service, Mr. Ogden has represented corporate clients 
in a range of industries, including transportation clients like Amtrak 
and Lufthansa, insurance and financial institutions like Citibank and 
Fireman's Fund, petrochemical companies like Shell and BP and 
pharmaceutical concerns like PhRMA and Merck.
  Here are the facts that underlie the overheated rhetoric: As a young 
lawyer in a small firm with a constitutional practice, along with other 
lawyers in that respected DC law firm, Mr. Ogden represented a range of 
media clients. He represented the American Library Association, the 
American Booksellers Association, and Playboy Enterprises.
  In the early 1990s, while at the respected firm of Jenner & Block, 
Mr. Ogden represented a Los Angeles County firefighter. The firefighter 
was being prohibited from possessing or reading Playboy magazine at the 
firehouse, even when on down time between responding to fires. The 
Federal Court reviewing the matter held that the first amendment 
protected the firefighter's right to possess and read the magazine. 
That representation does not make Mr. Ogden a pornographer, a pedophile 
or justify any of the other epithets that have been thrown his way.
  He also challenged a prosecution strategy that threatened 
simultaneous indictments in multiple jurisdictions with the goal of 
negotiating plea agreements that put companies out of business without 
ever having to prove that the materials they were distributing were 
obscene. That sounds like the kind of overreaching prosecution strategy 
that Senator Specter and other Republican Senators would condemn, just 
as they have the excesses of the ``Thompson memo'' pressuring 
investigative targets to waive their attorney-client privilege.
  Those who have argued that Mr. Ogden has consistently taken positions 
against laws to protect children ignore Mr. Ogden's record and his 
testimony. What these critics leave out of their caricature is the fact 
that Mr. Ogden also aggressively defended the constitutionality of the 
Child Online Protection Act and the Child Pornography Prevention Act of 
1996 while previously serving at the Justice Department. This work has 
led to support and praise from the National Center for Missing and 
Exploited Children. He has the support of the Boys and Girls Clubs of 
America. In private practice he wrote a brief for the American 
Psychological Association in Maryland v. Craig in which he argued for 
protection of child victims of sexual abuse. In his personal life, he 
has volunteered time serving the Chesapeake Institute, a clinic for 
sexually abused children.
  Nominees from both Republican and Democratic administrations and 
Senators from both sides of the aisle have cautioned against opposing 
nominees based on their legal representations on behalf of clients. 
When asked about this point in connection with his own nomination, 
Chief Justice Roberts testified, ``it has not been my general view that 
I sit in judgment on clients when they come'' and, ``it was my view 
that lawyers don't stand in the shoes of their clients, and that good 
lawyers can give advice and argue any side of a case.'' Part of the 
double standard being applied is that the rule Republican Senators urge 
for Republican nominees--that their clients not be held against them--
is turned on its head under a Democratic President.
  As recently as just over 1 year ago, every Senate Republican voted to 
confirm Michael Mukasey to be Attorney General of the United States. 
That showed no concern that one of his clients, and one of his most 
significant cases in private practice as identified in the bipartisan 
committee questionnaire he filed, was his representation of Carlin 
Communications, a company that specialized in what are sometimes called 
``dial-a-porn'' services. It is more evidence of a double standard.
  Senators should reject the partisan tactics and double standards from 
the extreme right and support David Ogden's nomination. The last Deputy 
Attorney nominee to be delayed by such a double standard was Eric 
Holder, whose nomination to be Deputy Attorney General in 1997 was 
delayed for three weeks by an anonymous Republican hold after being 
reported favorably by the Judiciary Committee before being confirmed 
unanimously. Like now Attorney General Holder, Mr. Ogden is an 
immensely qualified nominee whose priorities will be the safety and 
security of the American people and reinvigorating the traditional work 
of the Justice Department in protecting the rights of Americans.
  Mr. CARDIN. Mr. President, I ask unanimous consent that on Thursday, 
March 12, the Senate resume consideration of the Ogden nomination at 12 
noon and that it be considered under the parameters of the order of 
March 10; that the vote on the confirmation of the nomination occur at 
2 p.m.; further, that upon confirmation of the Ogden nomination, the 
Senate remain in executive session and consider Calendar No. 23, the 
nomination of Thomas John Perrelli to be Associate Attorney General; 
that debate on the nomination be limited to 90 minutes equally divided 
and controlled between the leaders or their designees; that upon the 
use or yielding back of time, the Senate proceed to a vote on 
confirmation of the nomination; that upon confirmation, the motion to 
reconsider be laid upon the table, no further motions be in order; that 
the President be immediately notified of the Senate's action; and that 
the Senate then resume legislative session.
  The PRESIDING OFFICER (Mr. Nelson of Florida). Without objection, it 
is so ordered.

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