[Congressional Record Volume 155, Number 51 (Wednesday, March 25, 2009)]
[Senate]
[Pages S3753-S3754]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


      NOMINATION OF DAVID S. KRIS TO BE 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 legislative clerk read the nomination of David S. Kris, of 
Maryland, to be Assistant Attorney General.
  Mr. LEAHY. Mr. President, the Senate has confirmed four nominees to 
fill top leadership positions at the Justice Department officials, and 
today we take another step forward to put in place Attorney General 
Holder's leadership team. Today, the Senate turns to the nomination of 
David Kris to lead the National Security Division.
  I thank the Democratic and Republican members of the Judiciary 
Committee for working with me to expedite this nomination when it was 
in committee. Senator Feinstein chaired our Judiciary Committee hearing 
on his nomination on February 25. We were able to report his nomination 
out of the committee by a voice vote on March 5. The Senate Select 
Committee on Intelligence worked quickly to consider and report his 
nomination as well. Finally, the Senate today considers his nomination 
to this critical national security post.
  The Judiciary Committee's renewed oversight efforts in the last 2 
years brought into sharper focus what for years had been clear--that 
during the last 8 years, the Bush administration repeatedly ignored the 
checks and balances wisely placed on executive power by the Founders. 
The Bush administration chose to enhance the power of the President and 
to turn the Office of Legal Counsel at the Department of Justice into 
an apologist for White House orders--from the warrantless wiretapping 
of Americans to torture.
  Attorney General Holder has already taken steps toward restoring the 
rule of law. With the confirmation of David Kris to lead the National 
Security Division, we fill another key national security position in 
the Department.
  David Kris is a highly regarded veteran of the Department of Justice. 
He is former Federal prosecutor who spent 8 years as a career attorney 
in the criminal division at the Department, handling complex cases in 
Federal trial and appellate courts, including the Supreme Court. Mr. 
Kris was then a political appointee under both President Clinton and 
President Bush, serving as Associate Deputy Attorney General from 2000-
2003, supervising the government's use of the Foreign Intelligence 
Surveillance Act, FISA, representing the Justice Department at the 
National Security Council and in other interagency settings, briefing 
and testifying before Congress, and assisting the Attorney General in 
conducting oversight of the U.S. intelligence community.
  Mr. Kris understands the role the Bush administration's excesses have 
played in undermining the Department of Justice and the rule of law. In 
2006, Mr. Kris released a 23-page legal memorandum critical of the 
legal rationale offered by the Bush administration, and in support of 
the legality of the National Security Agency's warrantless wiretapping 
program. Mr. Kris was an early advocate for the creation of the 
National Security Division he has now been confirmed to lead, leaving a 
lucrative practice as an in-house counsel for a major corporation to 
return to government service.
  Mr. Kris' nomination has also earned support from both sides of the 
aisle. Former Bush administration Solicitor General Ted Olson, who 
worked with Mr. Kris at the Department, describes Mr. Kris as ``a very 
sound lawyer,'' who ``is committed to the defense of the United States 
and its citizens, and respects the rule of law and civil rights.'' 
Former Deputy Attorney General Larry Thompson, who asked Mr. Kris to 
remain in his post during the Bush administration, writes that he asked 
Mr. Kris to stay after finding that ``he had a passion for national 
security issues but also a deep respect and appreciation for the 
related civil liberties concerns.'' Former Bush administration Homeland 
Security Secretary Michael Chertoff and former Attorneys General Janet 
Reno and John Ashcroft have all written in support of Mr. Kris' 
nomination.
  President Obama has reminded Americans and the world that, ``to 
overcome extremism, we must also be vigilant in upholding the values 
our troops defend--because there is no force in the world more powerful 
than the example of America.'' The President reminded us that ``living 
our values doesn't make us weaker, it makes us safer and it makes us 
stronger.''
  David Kris understands the moral and legal obligations we have to 
protect the fundamental rights of all Americans and to respect the 
human rights of all. He knows, as do the President and the Attorney 
General, that we must ensure that the rule of law is restored as the 
guiding light for the work of the Department of Justice.
  I congratulate Mr. Kris and his family on his confirmation today.
  Mrs. FEINSTEIN. Mr. President, I rise today in strong support of the 
nomination of David S. Kris to be Assistant Attorney General for 
National Security.
  Mr. Kris was nominated by President Obama on February 11, 2009, to 
fill this important position. Since then, his

[[Page S3754]]

nomination has been considered by the Judiciary Committee and then 
sequentially by the Intelligence Committee. I had the honor of chairing 
both of these hearings, so am as familiar with any Member with his 
record.
  Both the Judiciary Committee and Intelligence Committee favorably 
reported the nomination without dissent.
  The position of the Assistant Attorney General for National Security 
was created in the USA PATRIOT Improvement and Reauthorization Act of 
2005 out of recognition that there should be a single official in the 
Department of Justice who is responsible for national security.
  The Assistant Attorney General is the bridge between our Nation's 
intelligence community and the Department of Justice. He or she 
represents the Government before the FISA Court and is also the 
Government's chief counterterrorism and counterespionage prosecutor.
  David Kris is highly qualified for this critically important national 
security position.
  He has both figuratively and literally ``written the book'' on 
national security.
  Mr. Kris spent 11 years as a prosecutor in the Justice Department, 
and he knows its national security functions well.
  During the Bush administration, he was the Associate Deputy Attorney 
General for national security, where he litigated national security 
cases and oversaw intelligence activities. When Congress considered 
merging the Department's national security functions under a single 
office, Kris was one of the experts consulted.
  After leaving Federal Government service, Mr. Kris remained very 
active in the field of national security law. He coauthored of the most 
widely used legal treatise in this area. His book, titled ``National 
Security Investigations and Prosecutions'', provides a step-by-step 
analysis of all of the law that governs Government activity in response 
to terrorist threats.
  During the debate last year over rewriting the Foreign Intelligence 
Surveillance Act, Mr. Kris spent significant amounts of his personal 
time meeting with personnel from both the Judiciary and Intelligence 
Committees to offer his expertise and judgment.
  In addition to his expertise, Kris has received high marks for his 
commitment to the rule of law. Both committees to consider his 
nomination received numerous letters of support from distinguished 
legal and privacy rights officials and experts. Those letters are in 
the hearing records at both committees.
  It is important for the Senate to consider this nomination and 
confirm Mr. Kris. Simply put, the Department of Justice needs him to 
get to work.
  The Assistant Attorney General position, currently vacant, is the 
primary official overseeing the Foreign Intelligence Surveillance Act 
implementation and signs applications going to the FISA Court.
  Because of the legislation passed last year, Mr. Kris will need to 
start immediately to prepare new certifications and supporting 
materials that the executive branch will have to submit to the FISA 
Court. As such, he would be the official at the Department of Justice 
most directly involved in questions of setting minimization and 
targeting procedures, reviewing the Attorney General's guidelines under 
the act, and making sure that the intelligence collection is carried 
out faithfully under the law.
  Separately, an Assistant Attorney General should be playing a key 
role in the executive branch review of how to handle individuals 
currently held at Guantanamo Bay. Mr. Kris has answered numerous 
questions on this topic during his confirmation hearings and shares my 
view that there must be an appropriate legal process upholding any 
decisions to detain individuals. However, he also believes, correctly 
in my view, that great care must be taken to ensure that anyone at 
Guantanamo who is transferred to other nations must not be allowed to 
pose a continuing threat to our national security.
  I am pleased that this nomination has finally reached the floor, and 
I urge the confirmation of David Kris.
  The PRESIDING OFFICER. The Senator from Maryland.
  Mr. CARDIN. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is, Will the Senate advise and consent to the nomination 
of David S. Kris, of Maryland, to be Assistant Attorney General?
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Massachusetts (Mr. 
Kennedy) is necessarily absent.
  Mr. KYL. The following Senator is necessarily absent: the Senator 
from Wyoming (Mr. Enzi).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 97, nays 0, as follows:

                      [Rollcall Vote No. 109 Ex.]

                                YEAS--97

     Akaka
     Alexander
     Barrasso
     Baucus
     Bayh
     Begich
     Bennet
     Bennett
     Bingaman
     Bond
     Boxer
     Brown
     Brownback
     Bunning
     Burr
     Burris
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coburn
     Cochran
     Collins
     Conrad
     Corker
     Cornyn
     Crapo
     DeMint
     Dodd
     Dorgan
     Durbin
     Ensign
     Feingold
     Feinstein
     Gillibrand
     Graham
     Grassley
     Gregg
     Hagan
     Harkin
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johanns
     Johnson
     Kaufman
     Kerry
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     Martinez
     McCain
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Pryor
     Reed
     Reid
     Risch
     Roberts
     Rockefeller
     Sanders
     Schumer
     Sessions
     Shaheen
     Shelby
     Snowe
     Specter
     Stabenow
     Tester
     Thune
     Udall (CO)
     Udall (NM)
     Vitter
     Voinovich
     Warner
     Webb
     Whitehouse
     Wicker
     Wyden

                             NOT VOTING--2

     Enzi
     Kennedy
       
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motion to 
reconsider is considered made and laid on the table. The President will 
be immediately notified of the Senate's action, and the Senate will 
resume legislative session.

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