[Congressional Record Volume 157, Number 62 (Monday, May 9, 2011)]
[Senate]
[Pages S2762-S2766]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
COLE NOMINATION
Mr. SESSIONS. Mr. President, I want to speak in opposition to the
nomination of James Cole to be Deputy Attorney General of the United
States, on whom we will be voting a little later this afternoon.
Despite President Obama's recess appointment of Mr. Cole, who has had
significant opposition in the committee, and was not looking at smooth
sailing--I do believe we should oppose his confirmation and his
permanent appointment based on some concerns I have with his record,
specifically his criminal justice view on the war on terror, which I
believe is utterly wrong, and his questionable decisions as an outside
consultant for AIG, the big insurance company that had to be bailed out
to the tune of, I think, $170 billion.
He was an independent consultant, supposed to be monitoring that
company for other errors they had made previously. So that is a concern
to me.
I served 15 years in the Department of Justice--as the U.S. attorney
for almost 12, and as an assistant U.S. attorney. I respect the
Department. I love the Department of Justice, but I am getting
concerned about it. I am not happy with some of the decisions and
philosophies that are emanating from the Department. I believe they do
not reflect the highest standards and qualities that we expect from
that great Department.
This nominee has a lot of good qualities. I believe he has a number
of strengths that--has management and some experience in the Department
for which I would give him credit. But at this point in history, I
believe his approach, particularly to the war on terror, along with the
Attorney General's approach to the war on terror are not good. I have
just about had enough of them.
I am just going to say this: I am not voting for another nominee--I
am not going to vote for this one--who spent their time defending
terrorists before they went to the Department. It is all right to
defend an unpopular person, but 13 to 16 members of the Department of
Justice, political appointees by this administration, have had as their
background defending terrorists, including the Solicitor General
nominee who is going to be coming up in committee this week, and also
working for or representing the ACLU.
So when we get this much of a tilt in the leadership of the
Department, it gives me great concern that the great Department I love
and respect is getting off base. So I think it is important to note
that right now one of the top priorities at the Department of Justice
must be the recent warnings we received that the terrorist groups
``almost certainly'' will try to avenge the death of Osama bin Laden,
and the continuing economic crisis that faces our country.
So I believe the President should be nominating proven prosecutors--
prosecutors of terrorists, frankly--for top positions in the law
enforcement agency, the U.S. Department of Justice. I do not think we
need any more terrorist defense attorneys. When I was the U.S. attorney
I hired a lot of assistant U.S. attorneys. I looked for proven
prosecutors wherever I could find them. I did not go around to look for
people who spent their spare time volunteering to defend terrorists or
writing papers defending criminals. That is just the way I see it,
frankly. I have to be honest about it.
So we have had this one, we have had that one, we have had another
one, and another and another. Now we have 13 to 16 who have been
appointed to the Department of Justice who have had this background.
Defending the unpopular is not disqualifying. We voted, and I voted,
for a number of people in the Department who have been involved in
these kinds of defense efforts, who filed lawsuits against President
Bush. They thought they were doing something great. I guess they did
not turn down the evidence if it helped in any way lead to the location
of Osama bin Laden.
We do have standards about how we should gather evidence, and lines
should not be crossed. But that does not mean we are not in a war. It
does not mean the people who are attacking us are common criminals who
need to be tried in civilian courts. They are at war with us. Bin Laden
said he is at war with us. He declared war on us. You do not treat
prisoners of wars, captured enemy combatants, like you treat common
criminals. This is fundamental.
I served in the Army Reserve a number of years, some of that time as
a JAG officer. I taught courses on prisoners of war and how to treat
prisoners and the standards of the field manual. I do not claim to be a
great expert at it, but I did it. I had some experience in it.
Mr. Cole consistently--and some of these nominees to the Department--
takes the view that terrorists are criminals and not unlawful
combatants. Let me just say briefly, if a person is caught--a murderer,
a rapist, or virtually any kind of criminal--when they are taken into
custody, as the Presiding Officer knows, who was a good prosecutor
himself, they have to be--before you can interview them, once they are
in custody you have to
[[Page S2763]]
give them Miranda warnings. That authorizes and tells them--basically
tells them: You did not have to make any statements at all. It
basically says: If you are an idiot, you will make statements. You are
entitled to a lawyer. If you do not have any money, we will appoint you
a lawyer. You have to go before a magistrate within a matter of hours.
You are entitled to discovery of the government's case in short order,
and you are entitled to a speedy trial. You are entitled to prowl
around in the government's case and find all of the evidence the
government has.
In war, that is not so. A classic case was Ex parte Quirin in World
War II when German saboteurs were dropped off on our coast from a
submarine. They were going to sabotage the United States of America.
They were apprehended, taken to military tribunals, tried, and most of
them were executed in a matter of months. The case went to the Supreme
Court, Ex parte Quirin, and was affirmed.
There has never been any doubt that unlawful combatants can be tried
for their crimes in military courts. It is done all over the world. It
is an established principle.
Now, let's get one thing straight. If you are a lawful combatant, and
you are captured on the battlefield--whether you are a Japanese soldier
or German soldier or Italian soldier--and you comply with the laws of
war and you wear your uniform and you do not attack deliberately men,
women, and children, civilians, and try to kill them, and you comply
with other rules of war, you cannot be tried. You can just be detained
until the war is over, but you do not get lawyers. You do not get
trials and discovery and all of that sort of thing. But if in
conducting your military campaign you violate the internally respected
laws of war, you cannot only be held as a prisoner of war, but the
nation that is holding you can try you for violations of the laws of
war.
So that is how these 9/11 attackers who did not wear uniforms, who
attacked deliberately civilians, are perfectly fit to be tried as war
criminals or unlawful combatants. They have announced their intention
to destroy the United States, to attack the United States. They have
said they are at war with us. But they have done it in an unlawful way,
and they can be tried in military commissions. This allows the military
to conduct interrogations according to the laws of war over a period of
months, years even. Sometimes after months a prisoner will start to
talk. You never know why they start talking.
But to deny ourselves the right to allow those kinds of things to
happen, to say we have to try these individuals, such as Khalid Sheikh
Mohammed, in civilian courts is clearly in error. But that is the
Attorney General's position. I asked him about it last week when he
testified before the Judiciary Committee. He said: It still remains the
policy of the Department of Justice that persons who are arrested as
terrorists are presumed to be tried in civilian court, although
Congress has passed a law prohibiting moneys to be expended for that,
on the 9/11 attackers. The Attorney General is in a huff and said
Khalid Sheikh Mohammed will be tried in Guantanamo under military
procedures as an unlawful combatant, but he does not like it. That is
not his view. It looks like everybody he wants to hire to be in the
Department of Justice agrees with that erroneous view.
It is not a close question. This is not a close question. There is no
reason a terrorist who is apprehended in the United States ought to be
provided lawyers and Miranda warnings. They are combatants. They are
not common criminals. Thinking this way has caused dangerous confusion.
As our troops and intelligence community continue to work night and
day to keep our country safe, it is imperative that we view the war on
terror as a real war and not a criminal matter and regard those who
wish to perpetrate terror on this country as enemy combatants, not
plain criminals. Like many in the administration, Mr. Cole disagrees.
In 2002, not long after the 9/11 attacks, he wrote an op-ed and
published it criticizing then-Attorney General John Ashcroft's decision
to try the 9/11 terrorists in military commissions. They researched the
law. Attorney General Ashcroft knew what he was doing. They decided
they were going to try these individuals by military commissions. He
had written an op-ed attacking the Attorney General for it.
So now that is the man we have as the nominee for the Deputy Attorney
General of the United States. At his hearing last Congress, Mr. Cole
repeated the prevailing and confusing Justice Department position that
decisions regarding whether captured terrorists should be tried in
civilian courts or before military commissions ``should be made on a
case-by-case basis based on all of the relevant facts and circumstances
available at the time of a suspect's capture.'' Is this going to happen
in Yemen, Afghanistan, Pakistan, wherever else they may be in the
United States is not a practical policy because we have to tell the
individuals who are making those captures what the rules are. As the
Attorney General said, they still adhere to the view that the
presumption is, the individual will be tried in civilian court.
Therefore, the presumption is, within a short time of their being taken
into custody, they should be given Miranda warnings, offered a lawyer,
and set for a preliminary court appearance, which could reveal to all
the other terrorists that their partner in war has been captured and
allow them to escape.
It is a wrong view, and why they persist in this is beyond my
understanding. Congress understands it and the American people do also.
This administration has established a policy that declares there is a
presumption of civilian trials and has failed to articulate a clear
policy for designating captured terrorists as enemy combatants or
criminal defendants. So I remain very unconvinced that the next
captured terror suspect will not be given the rights of a common
criminal and told he has the right to remain silent to the detriment of
crucial intelligence gathering. One of the most significant findings of
the 9/11 Commission was that intelligence gathering, intelligence
possession about what the enemy is doing is the best way to protect our
country, not prosecuting them after the fact. So telling someone they
have the right to remain silent and they have a lawyer who is going to
insist that they not make any statements, does that help us gather
intelligence? If it is required by the U.S. Constitution, we will do
it. We will just plain do it, regardless, but it is not required by
law, history or the Constitution. Law, history, and the Constitution
allow these enemy combatants to be tried in military commissions and
they don't have to be given Miranda warnings, which was a court-created
rule a number of years ago that never was understood before and is not
practiced, to my knowledge, in any other Nation in the whole world. Of
course, all this provides poor guidance for our law enforcement,
military, and intelligence officers as they go about their efforts, and
it is a grievous and dangerous mistake to continue this policy.
It seems to me that Mr. Cole and Attorney General Holder are cut from
the same cloth on this issue. I am uneasy about these two individuals
holding the top two positions in the Department of Justice. Now the
Solicitor General nominee seems to hold similar views and, if
confirmed, he will be one of the highest ranking people in the
Department. Their policy views appear to control the Department of
Defense. In other words, if they say this is the rule, the Department
of Defense has to give the Miranda warnings and so forth if they are
involved in a capture, and it directly controls the FBI, which is part
of the Department of Justice.
As the acting second in command at the Justice Department, Mr. Cole
would play a lead role in decisionmaking in the terror prosecutions
throughout the country. The Justice Department's continued insistence
on a presumption of civilian trials for terrorists confirms my concerns
that Mr. Cole has adhered to the failed pre-9/11 law enforcement
approach to terrorists, an approach the 9/11 Commission and the Nation
as a whole recognized was in error and should be changed. I thought we
had clearly made that move. Apparently, we haven't.
Also of concern, from 2003 to 2007, Mr. Cole represented a Saudi
Prince against insurance carriers and September 11 victims who alleged
that the Saudi Prince helped finance terrorists. Reportedly, Mr. Cole's
client was
[[Page S2764]]
linked through Treasury Department documents to the financial support
of extremist groups through the Al-Haramain Foundation, a Saudi charity
that had diverted funds to al-Qaida before and after 9/11. While
attorneys are free to, and should be free to, represent unpopular
clients, Mr. Cole is one of a long line of political appointees at the
Department of Justice who seem to me to be questionable choices for key
posts at the agency that is charged with defending national security,
given their choices to represent the very individuals and groups whose
goal it is to attack this country or kill Americans.
According to press reports, at least 13 to 16 current Obama
administration political appointees, including the current Solicitor
General nominee who represented Jose Padilla, previously provided legal
counsel to suspected or convicted terrorists and enemy combatants being
held in detention or to leftwing organizations that actively sought to
reverse Bush administration antiterrorist and detainee policies--
policies, I might add, that were a contributing factor to the
elimination of bin Laden and many other terrorists throughout this past
decade. I am curious to know if they have appointed anyone to key
positions in the Department of Justice who has ever prosecuted a
terrorist. I would like to know that. Maybe they have. Surely, somebody
has, but it looks odd to me that so many of those who have been on the
other side have been given top appointments.
On another subject, I am very disappointed with this administration's
abdication of its duty to defend congressionally enacted laws,
specifically the Defense of Marriage Act. Attorney General Holder has
stated President Obama had decided he would no longer defend this law,
after reviewing the Attorney General's recommendation and that the law
falls under the exception in which ``the Department of Justice cannot
offer a reasonable argument in defense of the statute's
constitutionality.''
Well, it has been defended and upheld by a number of courts. How do
we waltz in there and decide we are not going to defend a
congressionally enacted statute signed into law by President Clinton
because they don't like it? That is how it appears to me. The
administration apparently came to this conclusion after unilaterally
deciding that ``classifications based on sexual orientation warrant
heightened scrutiny''--in the face of precedent from 11 circuit courts
of appeal holding that such classifications should be reviewed under
the much lower rational basis standard.
There is a very big difference between refusing to defend a law the
administration regards as unconstitutional and refusing to defend a law
that the administration opposes on the policy grounds.
The ACTING PRESIDENT pro tempore. The Senator has used 15 minutes.
Mr. SESSIONS. I ask unanimous consent to speak for 1 additional
minute.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. SESSIONS. Mr. President, the Department of Justice is a great
department, and they have some very fine people there. I know Mr. Cole
has some good qualities. I supported Mr. Holder for Attorney General,
but I am very uneasy about the direction the Department is taking on a
large number of issues, and I believe one of the reasons this is
happening is because they have surrounded themselves with a group of
leftist lawyers, activist lawyers who don't operate according to the
more traditional views of law and justice in America. That is my view.
Other Senators may disagree. That is my view. I am not able to support
Mr. Cole for that and the reasons I have stated. I hope in the future
the administration will appoint more nominees that have proven records
of independence, effective prosecution, and commitment to law.
I thank the Chair and yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Maryland.
Mr. CARDIN. Mr. President, I greatly respect my friend from Alabama,
Senator Sessions, although I come to a different conclusion in regard
to Jim Cole.
I have worked with Jim Cole. I was part of a legislative committee in
the House of Representatives that had to do some very difficult work on
an ethics issue involving a former Speaker of the House of
Representatives. It was a tough decision to bring together six Members
of the House--three Democrats, three Republicans--and do it in a way
that would maintain the nonpartisan requirements of an ethics
investigation. The atmosphere was very partisanly charged around the
work we were doing. I know this sounds familiar. People in Maryland and
Connecticut and around the Nation understand we are working in a very
partisan environment, and they expect the people who are charged at the
Department of Justice to work in a nonpartisan manner.
This is not a partisan position, the Deputy Attorney General. This is
a person who is working with the Attorney General, the Nation's lawyer.
We want somebody who has the experience, someone who has the character
and commitment to carry out this very important position.
As I said, I have known Jim Cole. He has 13 years' experience within
the Department of Justice. He is a public interest attorney. That has
been the largest part of his professional career, the service of public
interests. He has always followed policy, not politics. He has a very
distinguished career in law, and he is the type of person we like to
see within the Department of Justice.
As I pointed out, I worked with Jim Cole when I was in the House of
Representatives. We worked on a very difficult investigation involving
the former Speaker of the House of Representatives who at the time was
Speaker. The chairman of the committee was Porter Goss, a Republican
from Florida. Porter Goss's observations of Jim Cole were that he was a
brilliant prosecutor, extraordinarily talented. Then Mr. Goss goes on
to say that over time, he brought our committee to a bipartisan
cooperation which was desperately needed in order to successfully
complete that matter. At the end of the day, the six of us came
together in a unanimous recommendation. That is the type of person Jim
Cole is. He was professional and put policy ahead of politics.
Former Senator John Danforth testified at Jim Cole's confirmation
hearing. John Danforth is a former Republican Member of the Senate. He
called Jim Cole ``a lawyer's lawyer.''
Jim Cole has support from Democrats and Republicans. Former high
officials within the Department of Justice have all recommended him,
including former Deputy Attorneys General appointed by both Republicans
and Democrats.
Let me quote one other person I had hoped would be greatly respected
on both sides of the aisle; that is, Fred Fielding, the White House
counsel for former President George W. Bush. He said Mr. Cole
``combines all the qualities you want in a `citizen public servant'--he
understands both sides of the street and is smart and tenacious, and is
a person of unquestioned honor and integrity.''
That is what Fred Fielding, the former White House counsel to
President Bush said, about Jim Cole.
Jim Cole is supported by former RNC officials and DNC officials
because he is nonpartisan. He is a nonpartisan person who has put
public interest law as his top priority.
I was listening to Senator Sessions talk about terrorism. We have had
a spirited political debate taking place in this country over the best
way to bring terrorists to justice. Mr. Cole, however, will always put
principle over politics, and he is committed to evaluating each case
and matter that comes before him based on the facts and the law. That
is what you want from the Department of Justice. They are the values
and the character we want in our Nation's Department of Justice, and
Jim Cole will bring that to the Department of Justice--already brought
it to the Department of Justice.
The bottom line about Mr. Cole's approach on fighting terrorists is
one I believe we all believe in. We are a nation at war with al-Qaida,
the Taliban, and their associated forces. We need tough, aggressive,
and flexible policies that recognize the paramount importance of
providing the President with the ability to use all of the lawful
tools--all of the lawful tools--of our national power to protect the
American people and bring terrorists to justice.
[[Page S2765]]
Jim Cole believes in that. He is committed to working with the
Congress so we use all available tools. We make the judgment in each
individual case as to what is the most effective way to bring a
terrorist or criminal to justice.
He not only has expertise in handling terrorists and bringing them to
justice, he has had very important positions in the Department of
Justice supervising the criminal prosecution of white-collar crimes. He
understands the full breadth of the Department of Justice and is a very
valuable player in making sure the Department of Justice follows in the
fine tradition of that agency.
I urge my colleagues to vote to move forward. At least vote to allow
this nomination to get an up-or-down vote. This is a very important
position: the Deputy Attorney General. We talk about we were sent here
to Washington to make tough votes. OK. I do not think this is a tough
vote. I think Jim Cole is the best person for this critically important
job, and I do not think he is at all a partisan person. I know him
well. I know him to be a career type individual who is interested in
doing what is right. But this is not a nominee where you should be
using a filibuster to prevent an up-or-down vote.
This is a very important position for our country. For the dignity of
the Senate and the Department of Justice and the decency of Jim Cole, I
urge my colleagues to allow us to go forward with an up-or-down vote on
his confirmation, and I urge my colleagues to support his confirmation
to be Deputy Attorney General of the United States.
Mr. President, I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Coons). The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. GRASSLEY. 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. GRASSLEY. Mr. President, I know we are in morning business. I ask
unanimous consent to speak on the nomination of James Cole to be Deputy
Attorney General.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GRASSLEY. Mr. President, I rise in opposition to the motion to
invoke cloture on the nomination of James Cole to be the Deputy
Attorney General at the Department of Justice. I oppose proceeding to a
vote on the nominee for a number of reasons.
I have concerns regarding Mr. Cole's qualifications and am troubled
by President Obama's recess appointment of Mr. Cole to this position. I
have been consistent in my opposition to recess appointments over the
years. Whenever the President bypasses the Senate by making recess
appointments, such nominees will not receive my support. We have a
process in place for nominations and if the President is not willing to
work with Senators to clear nominations, the nominee should not get a
second bite at the apple.
In addition to my general opposition to recess appointments, I have
consistently warned this administration that I would not cooperate in
moving nominees for the Department of Justice, until they cooperated
with my request for oversight materials. Last month, I went to the
floor to describe what I have learned in the course of my investigation
into whistleblower allegations at the Bureau of Alcohol, Tobacco,
Firearms, and Explosives, ATF. According to whistleblowers, guns found
at the scene of the murder of Border Patrol Agent Brian Terry had been
purchased illegally by a known straw buyer a year earlier, with the
blessing of the ATF as part of an operation known as Fast and Furious.
I first asked about this issue on January 27. On February 16, I
requested specific documents from the Justice Department. I reiterated
that request on March 3.
When the Justice Department failed to produce any responsive
documents, I partnered with House Oversight and Government Reform
Chairman Darrell Issa, who first requested documents and then issued a
subpoena to the ATF after his voluntary request was ignored. On April
13, my staff learned that the Justice Department was making certain
documents available for Chairman Issa's staff to review at the
Department. Not only did the Department fail to notify me of this
document review, when I sent two of my staff members to participate,
they were turned away at the door of the Justice Department.
To this day, the Justice Department has still not produced a single
page of documents in response to my inquiries and has provided only
previously released public documents in response to Chairman Issa. I
received a letter on May 2, 2011, declining to provide my staff with
access to the documents on the grounds that ``the Executive Branch . .
. has taken the position that only a chairman can speak for a committee
in conducting oversight work.'' According to the DC Circuit Court of
Appeals, however:
It would be an inappropriate intrusion into the legislative
sphere for the courts to decide without congressional
direction that, for example, only the chairman of a committee
shall be regarded as the official voice of the Congress for
purposes of receiving such information, as distinguished from
its ranking minority member, other committee members, or
other members of the Congress. Each of them participates in
the law-making process; each has a voice and a vote in that
process; and each is entitled to request such information
from the executive agencies as will enable him to carry out
the responsibilities of a legislator.
That is from Murphy v. Department of the Army, 1979.
I said on the floor on April 14 that if the Justice Department did
not cooperate and provide the information we need, I would consider
exercising my right to object to unanimous consent requests on a
nomination. Since that time, I have received nothing but stonewalling
from the Department. As the chief operating officer of the Department,
Mr. Cole is in a position to ensure the Justice Department meaningfully
cooperates with my inquiries and complies with my document requests. He
has failed to do so.
I also am troubled by the Department's continued resistance to
oversight requests from Senator Chambliss, the vice chairman of the
Select Committee on Intelligence. Senator Chambliss has requested that
the Department of Justice share important documents with Congress
regarding the Guantanamo Bay Detainee Review Task Force. This task
force reviewed the case files of many detainees that were released or
transferred from U.S. custody. Unfortunately, we now know that over 25
percent of those detainees later returned to fight against us or our
allies.
These documents are part of a legitimate exercise of our
constitutional duty to conduct oversight. The Department's repeated
stonewalling of Senator Chambliss's request should not be rewarded with
a cloture vote on a controversial nominee.
The Deputy Attorney General is the second in command at the Justice
Department and responsible for overseeing the day-to-day operations of
the Department. Managing this vast bureaucracy is a difficult task that
requires a serious commitment to protecting our national security,
enforcing our criminal laws, and safeguarding taxpayer dollars. We need
a qualified individual to fill this slot, an individual who possesses
the ability to not only provide leadership for the Department but also
an individual who has the smarts, capability and willingness to manage
Department programs and root out inefficiencies and abuses in those
programs. After reviewing all his responses and his hearing testimony,
I concluded that I could not support Mr. Cole's nomination to be the
Deputy Attorney General.
In particular, I am seriously concerned about Mr. Cole's views on
national security and terrorism. Back in 2002, Mr. Cole was the author
of an opinion piece in the Legal Times. In that piece, he stated:
For all the rhetoric about war, the Sept. 11 attacks were
criminal acts of terrorism against a civilian population,
much like the terrorist acts of Timothy McVeigh in blowing up
the Federal building in Oklahoma City, or of Omar Abdel-
Rahman in the first effort to blow up the World Trade Center.
The criminals responsible for these horrible acts were
successfully tried and convicted under our criminal justice
system, without the need for special procedures that altered
traditional due process rights.
He added that, ``The acts of Sept. 11 were horrible, but so are . . .
other things.'' The other things he referred to were the drug trade,
organized crime, rape, child abuse and murder. Mr. Cole's opinion piece
argued that
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notwithstanding the involvement of foreign organizations, such as al-
Qaida, we have never treated criminal acts influenced by foreign
nationals or governments as a basis for ``ignoring the core
constitutional protections ingrained in our criminal justice system.''
Mr. Cole concludes his opinion piece by arguing that in addition to
stopping future terrorist attacks, the Attorney General is a criminal
prosecutor and that he has a special duty to apply constitutional
protections engrained in our criminal justice system to everyone,
including terrorists captured on a foreign battlefield.
Mr. Cole wrote this opinion piece 2 days short of the first
anniversary of the September 11 attacks. Given the close proximity in
time to the September 11 attacks, we must understand this opinion piece
to be Mr. Cole's true beliefs about the application of the civilian
criminal justice system to terrorism cases, including those who
masterminded the 9/11 attacks.
From the opinion piece and his responses to our inquiries, it appears
that if given a choice of prosecuting high ranking terrorists in
civilian courts or military commissions, Mr. Cole would likely favor
civilian courts based upon his longstanding belief in the role the
Attorney General plays in protecting the principles of the criminal
justice system. Absent a clear statement from Mr. Cole about what
factors would warrant selecting a civilian or a military forum, it is
hard to look at his entire record of past opinions, his testimony, and
responses to our questions and reach a different conclusion.
Military tribunals have many advantages to civilian criminal courts
and are better equipped to deal with dangerous terrorists and
classified evidence while preserving due process. I am troubled that
Mr. Cole does not appear to share this belief. Based upon his responses
and testimony, I have serious concerns about Mr. Cole's support for
civilian trials for terrorists captured on a foreign battlefield given
that the Deputy Attorney General oversees the national security branch
at the Justice Department.
Second, I have concerns about Mr. Cole's abilities relative to
oversight of government programs. First, in his responses about
oversight of DOJ grant programs, Mr. Cole failed to commit to a top to
bottom review of the programs.
We have had enough examples of the tremendous inefficiencies,
duplications, and waste in these programs. I am disappointed that Mr.
Cole has failed to recognize that there is a need for comprehensive
review of the Department of Justice's grant program, not only for the
sake of saving taxpayer dollars but also to ensure that grant
objectives are being met in the most efficient and effective manner
possible.
Third, I do not have confidence regarding Mr. Cole's abilities based
on his performance as an independent consultant tasked with overseeing
AIG. By way of background, the Justice Department provided copies of
the reports Mr. Cole issued when he was overseeing AIG, but they were
labeled ``committee confidential.'' Consequently, I cannot discuss in a
specific manner the context of those documents publicly.
Nevertheless, when taken into context with the public responses
provided by Mr. Cole to my questions, a troubling picture develops
about Mr. Cole's performance in his independent consultant
responsibilities. The responses and reports do not dispel the serious
questions raised about Mr. Cole's independence and completeness.
Further, they reveal what appears to be a level of deference to AIG
management one would not expect to see from someone tasked as an
``independent'' monitor.
In order to clarify a number of questions on this matter, Senator
Coburn and I sent a followup letter seeking additional answers from Mr.
Cole. Mr. Cole's reply clarified that DOJ, SEC, and the New York State
Attorney General's office were aware of his practice of seeking input
from AIG and making modifications to the reports. He indicated that the
changes AIG made were often factual changes, such as AIG employee
names, dates of materials, and events. He also indicated that some of
the changes requested by AIG were included in a section of the report
entitled ``AIG Response.'' However, he said that ``on a few occasions''
AIG would ``suggest a stylistic change of phrasing in the analytical
section of the report.'' He stated that while he included the edits
made by AIG, he ``did not believe that a detailed presentation of this
factual review was necessary to an understanding of each party's
position.'' As a result, the report did not necessarily show which
edits AIG made that were incorporated. Instead, he said that those
changes were available in working papers that were ``available to the
SEC, the DOJ, the New York Attorney General's Office.'' Unfortunately,
he added, ``the agencies--which were aware of this practice--did not
request such documents.''
While I appreciate Mr. Cole's responses to these clarifying
questions, they raise concerns about how independent his monitoring
was, what changes were ultimately requested by AIG, what changes were
included, and how much the SEC and the DOJ really knew about edits AIG
was making to the ``independent'' reports.
Finally, I have serious concerns about Mr. Cole's decision to suspend
the compliance review at AIG's Financial Products Division following
the government bailout. In his testimony, Mr. Cole acknowledged that
following the government bailout of AIG, he scaled back his efforts
until the future of AIG as a corporation was determined. After Mr. Cole
suspended his monitoring, AIG restructured its compliance office and
terminated a number of staff overseeing the company's compliance with
the Securities and Exchange Commission regulations. Mr. Cole said that
after it was determined that AIG's Financial Products Division would
not be dissolved, the compliance and monitoring were ``revived and are
being reviewed and implemented where applicable.'' Under Mr. Cole's
watch, AIG not only got $182 billion of taxpayer money, it was able to
talk the independent consultant--Mr. Cole--out of monitoring what the
company was doing.
Based upon these factors, I am concerned about Mr. Cole's ability to
perform the duties required of Deputy Attorney General. He would be in
a position to potentially influence future compliance monitors
appointed under settlements between the Justice Department, the
Securities and Exchange Commission, and other corporations that have
violated the law. Independent monitors need to be truly independent and
completely transparent. They are selected and appointed to ensure that
the interests of the American people are protected.
I cannot support the nomination of Mr. Cole to be Deputy Attorney
General and, therefore, will vote against cloture. I urge all of my
colleagues to join me in opposing this cloture vote to send a message
to the Justice Department to stop the stonewalling of legitimate
oversight inquiries from Members of the Senate.
I yield the floor.
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