[Congressional Record Volume 157, Number 62 (Monday, May 9, 2011)]
[Senate]
[Pages S2766-S2771]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOMINATION OF JAMES MICHAEL COLE TO BE DEPUTY 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 bill clerk read the nomination of James Michael Cole, of the
District of Columbia, to be Deputy Attorney General.
The PRESIDING OFFICER. Under the previous order, there will be 1 hour
of debate equally divided and controlled between the two leaders or
their designees.
Mr. GRASSLEY. Mr. President, I yield 10 minutes to the Senator from
North Carolina.
Mr. BURR. Mr. President, I thank the Senator. In less than an hour,
this body will be asked to vote on cloture to proceed to the nomination
of James Michael Cole to be Deputy Attorney General. I rise in
opposition to that cloture vote on the nomination of James Cole, and I
urge my colleagues to strongly oppose it.
[[Page S2767]]
As a member of the Senate Intelligence Committee, I share the views
of the vice chairman, Senator Chambliss, and the ranking member of the
Judiciary Committee, Senator Grassley, as expressed in their letter to
Republican colleagues dated May 6, 2011, opposing cloture on this
nomination.
I ask unanimous consent to have printed in the Record this letter
from Republican colleagues.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Senate,
Washington, DC, May 6, 2011.
Dear Colleague: The Majority Leader has filed cloture on
James Cole, the President's nominee to be the Deputy Attorney
General. At this time, we do not support Mr. Cole's
appointment and urge you to oppose cloture on his nomination.
During the last Congress, Mr. Cole's nomination was not
considered by the full Senate for several reasons. First, the
Department of Justice has refused to comply with repeated
minority requests since August 2010 for documents and
information related to the activities of the Guantanamo Bay
Detainee Review Task Force. Second, Mr. Cole's comments and
hearing testimony regarding the September 11th terrorist
attacks raise significant concerns about his suitability to
be the Deputy Attorney General of the United States. Third,
we have concerns about Mr. Cole's abilities based on his
performance as an Independent Consultant tasked with
overseeing the insurance group, AIG. As a result, the Senate
returned the nomination to the President. Unfortunately, on
December 29, 2010, Mr. Cole was recess appointed to a one-
year term while the Senate was adjourned and sworn in shortly
thereafter. Notwithstanding Mr. Cole's recess appointment,
our reasons for opposing his nomination remain.
Department of Justice Stonewalling Document and Information Requests by
Ranking Members
For several years, the Senate Select Committee on
Intelligence has been reviewing the process used by the
Administration's Guantanamo Bay Detainee Review Task Force to
detain, transfer, or release detainees from the Guantanamo
Bay facility. Given that the recidivism rate among these
detainees has now risen above 25 percent, Congress must have
clear insight into this process to determine whether
additional legislation is needed to protect our national
security.
The Attorney General has been asked repeatedly to provide
Congress with: (1) any guidance or recommendations related to
the Task Force process (including a September 2009 Attorney
General memorandum concerning a presumption to be applied in
favor of transfer or release for certain detainees); (2) the
Task Force's unredacted recommendations regarding each
detainee; and (3) a list of the 92 detainees who were
approved for transfer as of August 28, 2009, prior to the
issuance of the September 2009 memo. In spite of these
specific written requests from Senators in the minority,
including a request from all of the minority members of the
Select Committee on Intelligence, the Justice Department has
not provided the information, instead asserting a
questionable ``deliberative process'' privilege to justify
its lack of compliance.
Aside from this dubious assertion of privilege, the
repeated failure of the Justice Department to comply with
this oversight request is part of a disturbing pattern of
refusing to recognize legitimate oversight requests from
ranking minority members. For example, the Justice Department
is currently refusing to turn over documents requested by the
Ranking Member of the Senate Judiciary Committee regarding
serious allegations that the Bureau of Alcohol, Tobacco,
Firearms, and Explosives knowingly allowed straw purchasers
to buy firearms that were then provided to criminal drug
cartels in Mexico. At least two of these weapons were later
found at the scene where Border Patrol agent Brian Terry was
murdered.
Mr. Cole's Views on Terrorism
A September 2002 opinion piece by Mr. Cole raises serious
questions about his judgment and his current views on
terrorism. In that article, he noted that ``[f]or all the
rhetoric about war, the September 11th attacks were criminal
acts of terrorism against a civilian population'' and were no
more horrible than ``the scourge of the drug trade, the reign
of organized crime, and countless acts of rape, child abuse,
and murder.'' He also argued that the protections of our
criminal justice system ``must be applied to everyone to be
effective.''
While the United States must use every means at our
disposal--criminal, intelligence, and military--to fight
terrorism, not every terrorist deserves the valued
protections of our criminal justice system. Although Mr. Cole
has downplayed his comments, he has not rejected the
comparison of September 11th to ordinary criminal acts or
answered whether he favors trying terrorists in civilian
courts. His failure to do so exhibits a lack of understanding
about the real threat of terrorism.
Mr. Cole's Performance in Overseeing AIG
We have a number of concerns about Mr. Cole's abilities
based on his performance as an Independent Consultant tasked
with overseeing AIG. Some of these concerns cannot be shared
in this letter, because the Judiciary Committee has labeled
the relevant reports as ``Committee Confidential.''
Nonetheless, these reports and Mr. Cole's responses reveal
what appears to be a level of deference to AIG management
that one would not expect to see from someone tasked as an
``independent'' monitor. Also, we have serious concerns about
Mr. Cole's decision to suspend the compliance review of AIG's
Financial Products division following the government bailout.
Conclusion
We believe that before Mr. Cole's nomination receives an
up-or-down vote in the Senate, the Department of Justice must
immediately comply with the long-standing requests for
documents and information related to the Guantanamo Bay
Detainee Review Task Force. Moreover, we are not yet
convinced that Mr. Cole's recess appointment should be
ratified by the Senate in light of the remaining concerns
about his suitability for this very important position.
Again, we urge you to oppose cloture of Mr. Cole's
nomination at this time.
Sincerely,
Charles E. Grassley,
Ranking Member, Senate Committee on the Judiciary.
Saxby Chambliss,
Vice Chairman, Senate Select Committee on Intelligence.
Mr. BURR. Mr. Cole's nomination is troubling on several fronts.
First, the Department of Justice, where he now serves as second in
command since his recess appointment this past December, refuses to
provide the Senate Intelligence Committee with documents we have been
requesting for months.
More than 2 years ago, the Intelligence Committee learned that the
recidivism rate--the number of prisoners we release who go back into
the fight--at Gitmo was 11 percent. Today it stands at over 25 percent.
In this effort to close the detention facility at Gitmo, the President
ordered a task force run by the Attorney General to review the status
of all detainees still housed at Gitmo. Through much of 2009, the Gitmo
detainee review task force examined every detainee's case and made
recommendations to the administration on whether to transfer, release,
or detain each one.
At a time when Congress is aware that former Gitmo detainees are
returning to their old ways, we have an obligation to the American
people--an obligation to the American people--to make sure no more
detainees are released who could cause us harm. Even though Gitmo
remains open right now, efforts to transfer or release many of these
detainees continue today. The documents the Intelligence Committee is
seeking all relate to the task force process and will help the
committee understand why the task force made the recommendations it
did, especially with respect to those detainees who may have raised red
flags for the intelligence community.
We know that the Attorney General provided recommendations on how the
task force should make its transfer decisions because of separate
information provided to the committee. We do not have everything,
however, including the September 2009 memorandum in which the Attorney
General reportedly recommends that an entire category of detainees be
presumed to be eligible for transfer--presumed eligible for transfer.
While we have asked for this memorandum and any other recommendations
repeatedly, the Department has refused to provide them. If the Attorney
General of the United States recommended that certain detainees be
treated favorably, possibly in spite of the intelligence, the Senate
Intelligence Committee has a clear oversight interest in reviewing the
September memorandum and seeing if and to whom it was applied.
In addition to refusing to provide the September 2009 memorandum, the
Justice Department has also denied the Intelligence Committee the
recommendations of the task force. The committee cannot determine why
the task force made its recommendations without seeing the description
of how the task force came to the positions it did. The Department
claims that both the September 2009 memorandum and the unredacted
recommendations are protected from disclosure to Congress because of
deliberative process. This is an assertion ordinarily used in a FOIA
case or in the context of Executive privilege, not to inhibit
congressional oversight of a Federal agency. An interesting
inconsistency in this assertion is that the administration has
[[Page S2768]]
willingly provided the Intelligence Committee with the recommendations
of the past administration.
I understand that in the last few days, the Attorney General has
reached out to the vice chairman of the Intelligence Committee in an
effort to resolve these issues before today's vote. Given the
Department's months of delays and obstruction in complying with this
request, I believe cloture on this nomination is not appropriate until
the documents requested have been provided in full.
In addition to the document issue, Mr. Cole has not explained some
highly charged comments he made about 9/11. An op-ed he authored back
in September 2002 called the 9/11 attacks ``criminal acts of terrorism
against a civilian population.'' He went on to dismiss the severity of
9/11, calling it no more horrible than ``the scourge of the drug trade,
the reign of organized crime, and countless acts of rape, child abuse,
and murder.''
Mr. Cole has not rejected or fully explained those comments. Until he
does so and until the Department ends its refusal to comply with
reasonable congressional requests for information, I cannot support the
move to consider his nomination. I urge my colleagues to reject cloture
today.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. LEAHY. 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. LEAHY. Mr. President, I assume we are on the nomination of Jim
Cole.
The PRESIDING OFFICER. The Senator is correct.
Mr. LEAHY. Mr. President, to make a parliamentary inquiry: Am I
correct that time runs to 5:30?
The PRESIDING OFFICER. The Senator is correct.
Mr. LEAHY. Time has been consumed by this quorum call, and so I ask
unanimous consent that any time consumed in further quorum calls be
equally divided on both sides.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. Mr. President, the majority leader has been required to
file cloture in this extraordinary case in an attempt to overcome a
Republican filibuster on the nomination of Jim Cole to be Deputy
Attorney General. This is a key national security position and the No.
2 position at the Department of Justice. Certainly, with what has
happened in the past week or so, it is important for this President or
any President to have a full national security team.
I thought back, and I could not remember a time in my 37 years here
where the Senate has filibustered a President's nomination to be Deputy
Attorney General. I asked Senate Judiciary Committee staff to check
that and they found that the Senate has never filibustered a
President's nomination to be Deputy Attorney General. In fact, during
the time I was chairman of the committee, we quickly moved on President
Bush's Deputy Attorneys General, even on those who would not have been
my choice. We knew it was a national security position and it is
important at a time when we face the threats we do here and abroad that
we have that position filled. In fact, I thought it would be
unconscionable, whether it was President Bush, President Reagan or any
other President, to stall a Deputy Attorney General.
Mr. Cole's nomination to fill this critical national security
position was blocked last year, when it was pending on the Senate's
Executive Calendar for 155 days after it was reported favorably by the
Judiciary Committee. The nomination was reported favorably by the
Judiciary Committee again in March, and incredibly, it is again being
filibustered. People have asked me how this could be happening. It is
hard to believe that one week after the successful operation that
killed Osama bin Laden, the world's number one terrorist, we cannot
take this step to ensure that President Obama has his full national
security team in place. It is similar to ``Alice in Wonderland.''
Now that a measure of justice has been secured for the victims of
September 11, I have expressed hope that we could come together, as we
did in the weeks and months following September 11. We should be
ensuring that we are extra vigilant these days. There are widespread
reports that experts are concerned about this being a time in which al-
Qaida will seek reprisals. Most Americans believe we should be
concerned about them trying to strike back. This is not a time for
further delay or obstruction. Let us join together and confirm this
qualified nominee. We also ought to show the rest of the world that no
matter what our political labels might be, we believe in the President
of the United States having his national security team in place.
This weekend, the Washington Post editorial board called this delay
``ridiculous,'' referring to the Deputy Attorney General as
``essentially the chief operating officer of the Justice Department,
including its national security operations.'' This delay is ridiculous
and dangerous to every single American. I hope other Senators will see
it as such and help end it.
We have the opportunity to set aside partisanship and join with our
President to keep America safe. I recall in the aftermath of 9/11 we
took immediate steps--Republicans and Democrats together--to do what we
could to make sure the President's entire law enforcement team was in
place.
We expedited the nominations of 14 U.S. attorneys that had been
received in the Senate only 1 week before, reporting them from the
Judiciary Committee on September 13 and confirming them by voice vote
the very next day. Those nominations included the nomination of Paul
McNulty to the Eastern District of Virginia, one of the key districts
where terrorism defendants like Zacarias Moussaoui, one of the
conspirators in the 9/11 attacks, are tried. We continued to expedite
nominations in the weeks and months that followed, confirming an
additional 58 officials to posts at the Justice Department in those
weeks and before the end of 2001.
Republican Senators helped a Republican President to get his security
team in place to protect the Nation, but now are not going to help a
Democratic President to get his security team in place. It is the same
Nation and the security threats are the same against Republican
Presidents and Democratic Presidents. We ought to come together as
Americans first on this important issue.
Last week at the Judiciary Committee's oversight hearing on the
Department of Justice, the Attorney General of the United States
reiterated the need for final Senate action on the nomination of the
Deputy Attorney General. He urged the Senate to confirm Jim Cole to
help the Department fulfill all of its critical tasks, including
protecting national security, in a time of heightened concern about
retaliatory attacks stemming from Osama bin Laden's death. Yet, rather
than take action to end the unnecessary and unexplained delays and
finally confirm the nomination of Jim Cole, the unprecedented
Republican filibuster continues. This is wrong. It should end.
I hope that Senators on the other side of the aisle will listen to
former Deputy Attorneys General of the United States who served in both
Republican and Democratic administrations. Last December, they wrote to
the leaders of the Senate and urged the Senate to consider Mr. Cole's
nomination without delay. These former officials who served with
distinction in that post wrote that the Deputy is ``the chief operating
officer of the Department of Justice, supervising its day-to-day
operations'' and that ``the Deputy is also a key member of the
president's national security team, a function that has grown in
importance and complexity in the years since the terror attacks of
September 11.'' They were right and their advice rings true today.
As the former Deputies, 3 of whom served under President George W.
Bush, noted in their letter, ``Because of the responsibilities of the
position of Deputy Attorney General, votes on nomination for this
position usually proceed quickly.'' I wish the Senate had heeded their
advice and voted to confirm Mr. Cole last year. Now another 5 months
have passed.
When we first reported Jim Cole's nomination last July, I said that I
hoped the Senate would treat his nomination to this critical national
security and law enforcement position with the same urgency and
seriousness with which we treated all four of the Deputy
[[Page S2769]]
Attorneys General who served under President Bush. All four were
confirmed by the Senate by voice vote an average of 21 days after they
were reported by the Judiciary Committee. In fact, we confirmed
President Bush's first nomination to be Deputy Attorney General the day
it was reported by the committee. That is not the treatment that Deputy
Attorney General Cole has received.
The Senate's treatment of the Cole nomination represents a sharp
break from the Senate's longstanding practice of deference to the
administration and timely consideration of critical national and law
enforcement nominations. In their letter last December, the 8 former
Deputy Attorneys General noted that, of the 11 nominations to fill this
position over the last 20 years from Democratic and Republican
Presidents, ``none remained pending for longer than 32 days.'' I
remember some of President Bush's nominations to this position remained
pending even less than that.
Jim Cole's nomination has been pending on the floor for 222 days
combined, nearly seven times longer than any nominee in the last 20
years. In fact, dating back to 1981, 15 of the 16 Deputy Attorney
General nominations pending on the Executive Calendar were confirmed
unanimously, the only exception being President Obama's first Deputy
Attorney General nomination, of David Ogden, which was confirmed 65-28
after cloture was filed and a time agreement was reached. All of the
nominees of Presidents Reagan, George H.W. Bush, Clinton and George
Bush were confirmed unanimously by the Senate, in an average of less
than 2 weeks.
Last December, after the nomination had already been delayed for over
4 months without explanation, I came to the floor and asked unanimous
consent that at a time to be determined by the majority and minority
leaders, the Senate consent to a time agreement for a debate and a vote
on the Cole nomination. I asked that Senators have the courage to step
forward, not hide behind the filibuster, and to either vote yes or no
on this critical national security position. Republicans objected to
that request in December and have still, 5 months later, refused to
agree to a time to debate and vote on the nomination. It is time
finally for the Senate to vote. The American people expect us to vote.
The security of this country is threatened.
Jim Cole's nomination was pending last year for 5 months while
Republican Senators objected time and time again to calling it up for a
vote. I believe that Mr. Cole would have been confirmed by the Senate
had his nomination been given an up-or-down vote. I believe he should
be confirmed. As it was, after the Senate did not take final action on
the nomination, President Obama exercised his authority after the
Senate had recessed for the year to appoint him in order to make sure
this critical national security and law enforcement post was filled.
The President promptly renominated him when Congress returned this
year. Recess appointments have not prevented Republican Senators from
voting to confirm nominations by Republican Presidents. Given the
history of obstruction of this nomination, it is time for the Senate to
vote.
This is not a nomination that should have been controversial. It is a
nomination supported by former Republican Senator Jack Danforth, who
worked with Jim Cole for more than 15 years. When he introduced Mr.
Cole at his confirmation hearing, Senator Danforth described Mr. Cole
as someone without an ideological or political agenda. He also wrote to
the committee that ``Jim is a `lawyer's lawyer.' He is exceedingly
knowledgeable, especially on matters relating to legal and business
ethics, public integrity and compliance with government regulations. He
is highly regarded [] as a skillful litigator. As his resume
demonstrates, he has a long and deep experience in the Department of
Justice.'' I agree.
Jim Cole served as a career prosecutor at the Justice Department for
a dozen years and has a well-deserved reputation for fairness,
integrity and toughness. He has demonstrated that he understands the
issues of crime and national security that are at the center of the
Deputy Attorney General's job. Nothing suggests that he will be
anything other than a steadfast defender of America's safety.
We have received numerous letters of support for the nomination of
Jim Cole to be Deputy Attorney General, including letters from many
former Republican public officials. I ask unanimous consent that these
three letters be printed in the Record at the conclusion of my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. LEAHY. Among these is a letter from Michael Toner, former Chief
Counsel of the Republican National Committee and former General Counsel
to the Bush-Cheney 2000 Campaign, who wrote ``[i]n light of his
extensive experience, legal acumen, professionalism and integrity, I
can think of no better person than Mr. Cole to serve as Deputy Attorney
General.''
Chuck Rosenberg, former Chief of Staff for Deputy Attorney General
James Comey, who served under President George W. Bush, wrote, ``I know
how important it is for this crucial position to be filled by the right
person. Jim is the right person. He is smart, experienced, thoughtful
and has the proper skills and temperament to help Attorney General Eric
Holder lead the Justice Department.''
In his letter recommending Mr. Cole, Michael J. Madigan, a Republican
counsel on many high-level Senate investigations, described Mr. Cole as
``one of those somewhat rare individuals in this city about whom you
will never hear even the mildest of criticism.'' He concluded that Mr.
Cole ``is a good man and perfectly suited for the challenging position
for which the President has wisely nominated him.''
Mr. Cole's critics have been wrong to try to blame him for the
actions of AIG. His limited role was as an outside monitor of other
corporate functions and there is no evidence showing he did not perform
his assignment well. Let us hold those responsible at AIG accountable.
Not a single person at AIG has been. There is no basis for making Mr.
Cole the scapegoat for the action of AIG. Blame the AIG agents and
employees, blame its officers, blame its board, or even criticize the
lack of oversight by state and Federal regulators and law enforcement
officials if you like. But scapegoating this good man is wrong. As The
Washington Post observed in an editorial last year when Mr. Cole's
nomination was being blocked on the Senate floor, ``There is no
suggestion that Mr. Cole suffers from the kind of ethical or legal
problems that would disqualify a nominee.''
There is no justification for the failure to act on this critical
national security nomination, and for failing to make sure that the
administration has its full national security team in place. During the
time when I was chairman we moved very quickly on President Bush's
nominees for Deputy Attorney General because of the importance of the
security of the United States. It is important for every President to
succeed, no matter their party.
I hope that the Senate will reject this destructive and unprecedented
filibuster so that we can finally consider and confirm Jim Cole after
many months of unnecessary delays. As I said, I could not remember a
time in my 37 years here where we had filibustered a nominee to be
Deputy Attorney General and that proved to be true.
Exhibit 1
Bryan Cave,
Washington, DC, June 7, 2010.
Hon. Patrick J. Leahy,
U.S. Senate, Russell Senate Office Building, Washington, DC.
Hon. Jeff Sessions,
U.S. Senate, Russell Senate Office Building, Washington, DC.
Dear Senator Leahy and Senator Sessions: I write in strong
support of Jim Cole's nomination to serve as Deputy Attorney
General of the United States.
By way of background, I am a Partner at Bryan Cave LLP in
Washington, DC. Prior to joining Bryan Cave, I was Chairman
of the Federal Election Commission (FEC) and was a
Commissioner on the FEC from 2002-2007. Prior to being
appointed to the FEC, I served as Chief Counsel of the
Republican National Committee, General Counsel of the Bush-
Cheney 2000 Campaign, and General Counsel of the 2000 Bush-
Cheney Transition Team.
I have known Jim Cole for approximately 15 years and have
had the privilege of being a colleague of Mr. Cole's at Bryan
Cave for the last three years. I first met Mr. Cole when he
served as Special Counsel for the House Ethics Committee's
inquiry concerning Speaker Gingrich and I was an attorney
representing Speaker Gingrich in the
[[Page S2770]]
matter. Although Mr. Cole and I obviously had conflicting
interests in the Gingrich matter, I was tremendously
impressed with the thoroughness and professionalism by which
Mr. Cole conducted himself in the Gingrich matter, and that
has been a hallmark of all of my experiences with Mr. Cole
over the last 15 years.
Mr. Cole is superbly qualified to serve as Deputy Attorney
General of the United States. Mr. Cole is one of the smartest
and most able criminal lawyers in the country, and Mr. Cole's
prior service at the Justice Department will be invaluable
experience in working with Attorney General Holder in
managing and leading the Justice Department. In light of his
extensive experience, legal acumen, professionalism and
integrity, I can think of no better person that Mr. Cole to
serve as Deputy Attorney General.
Jim Cole has my highest recommendation to serve as Deputy
Attorney General of the United States and it is an honor to
have the opportunity to write on Mr. Cole's behalf. If
confirmed, I believe that Mr. Cole would serve the Department
of Justice and the country with great distinction in the
years ahead.
Sincerely,
Michael E. Toner.
____
Phelps Dunbar,
New Orleans, LA, June 10, 2010.
Re Nomination of Jim Cole to be next Deputy Attorney General
of the United States of America.
Hon. Patrick J. Leahy,
Chairman, Senate Judicial Committee,
U.S. Senate, Russell Office Building, Washington, DC.
Dear Senator Leahy: I am writing this letter to recommend,
without hesitation, Jim Cole to be confirmed as the next
Deputy Attorney General in the United States Department of
Justice.
As a former United States Attorney in Louisiana, I worked
with Jim Cole when he prosecuted a corrupt federal judge. I
also have worked with Mr. Cole for more than a decade while
he worked in the private sector.
I know Jim Cole to be bright, hard-working, dedicated and
beyond reproach. If confirmed by the United States Senate, I
believe Jim Cole will be an asset to both the Justice
Department and the citizens of the United States. I
respectfully ask you to consider my wholehearted support of
Jim Cole as the next Deputy Attorney General.
I know that you, and the other members of the Judiciary
Committee as well as the Senate, strive for bipartisan
cooperation. As a Republican Presidential appointee, I
believe it is critical for members of the Justice Department
to have bipartisan support and the confidence of the American
people regardless of party affiliation. I appreciate your
consideration of my views as to the soundness of the
nomination of Jim Cole for Deputy Attorney General and would
welcome an opportunity to provide you with additional
information if you so choose.
Thanking you again for your courtesies and with best
regards, I remain,
Sincerely,
Harry Rosenberg.
____
Orrick,
Washington, DC, June 8, 2010.
Re James M. Cole, Nominee for Deputy Attorney General.
Hon. Patrick J. Leahy,
U.S. Senate, Russell Senate Office Building, Washington, DC.
Hon. Jeff Sessions,
U.S. Senate, Russell Senate Office Building, Washington, DC.
Dear Senators Leahy and Sessions: It is my great privilege
and honor to add my voice, wholeheartedly, to those
supporting the nomination of Jim Cole for the critically
important position of Deputy Attorney General of the United
States.
I have known Jim for years and he is and has been a truly
outstanding lawyer and, most importantly, an even better
person. For the last two years I have had the honor of
serving with Jim on the ABA-DOJ Dialogue Group where he has
been an always thoughtful and important member.
Jim, as you already know, has had an outstanding career
both as a federal prosecutor and as a criminal and civil
trial lawyer. Indeed, Jim, I dare say, is one of those
somewhat rare individuals in this city about whom you will
never hear even the mildest of criticism. He is a good man
and is perfectly suited for the challenging position for
which the President has wisely nominated him.
I am honored to offer unqualified support for Jim's
nomination.
Respectfully yours,
Michael J. Madigan.
Mr. LEAHY. I see the distinguished Senator from Texas is here, so I
yield the floor.
The PRESIDING OFFICER. The Senator from Texas.
Mr. CORNYN. Mr. President, the distinguished chairman of the
Judiciary Committee has pointed out the Deputy Attorney General is a
member of the national security team of the President, and the
President has already used the authority under the Constitution to make
a recess appointment of this nominee. But the question before the
Senate today is whether the Senate should confirm the nomination of
James Cole to serve as Deputy Attorney General.
There are three reasons why I oppose this nomination. The first is
Mr. Cole is one of the earliest and most vociferous advocates of
bringing foreign al-Qaida terrorists to American cities for civilian
trials--a position since repudiated by the Attorney General himself in
the case of Khalid Shaikh Mohammed, and I am grateful for that. But Mr.
Cole has never recanted his position that, in effect, these are
criminal cases to be prosecuted as ordinary crimes rather than
terrorist acts during a time of war.
The problem, of course, with the paradigm of treating terrorism as a
criminal case is that we don't punish the terrorists until they have
actually been successful in committing a terrorist attack. In war, half
the battle--maybe more than half the battle--is trying to stop the
terrorist from actually accomplishing his or her goal of killing
innocent people. We do that by interrogating detainees and finding out
what they know about the organization and plans of terrorist attacks.
Mr. Cole, unfortunately, stands by the outdated, outmoded
characterization of these terrorist attacks being ordinary crimes. Of
course, they are something much worse indeed.
Quite frankly, as Mr. Holder's Deputy, Mr. Cole will only exacerbate
the worst tendencies of the Department of Justice when it comes to
distinguishing between criminal prosecutions and fighting a war against
terrorists. This was, of course, the primary reason why Mr. Cole's
nomination was unanimously rejected by Republicans in the Judiciary
Committee. The American people want a Department of Justice that is
committed to enforcing the law and protecting the innocent, not
creating new civil rights for terrorists or treating them as ordinary
criminals when they are something else indeed.
In fact, the recent death of Osama bin Laden was a product of a lot
of intelligence gathering that occurred over the years. That would
never have occurred under Mr. Cole's proposed model of Mirandizing
these people when they are arrested; telling them they do not have to
provide any information because they are being treated as ordinary
criminals rather than as terrorists who are eligible for rough
interrogation, if necessary, in order to find out what they know in
order to save innocent lives.
Rather than listening to the concerns of Republicans on the Judiciary
Committee about Mr. Cole's narrow view of the war on terror and of the
views of the American people and perhaps reconsidering this flawed
nomination, the President decided to plow ahead and bypass the advise
and consent process with a recess appointment. As I said, he, of
course, has the right to do so.
There are actually a couple other reasons why I oppose the
nomination, and I wish to first express my appreciation to Senator
Chambliss and Senator Grassley. Senator Chambliss, of course, is the
ranking member of the Senate's Select Committee on Intelligence, and
Senator Grassley is the ranking member of the Senate Judiciary
Committee. They have continued to demand information from the
Department of Justice and have been stonewalled at every turn. Senator
Chambliss and his colleagues on the Intelligence Committee have made
perfectly reasonable requests consistent with the committee's oversight
responsibilities related to the Obama administration's Guantanamo
Detainee Review Task Force. Senator Grassley, on the other hand, from
his position as the ranking Republican on the Judiciary Committee, on
which I serve, has requested documents concerning serious allegations
that the Bureau of Alcohol, Tobacco, Firearms and Explosives knowingly
allowed straw purchasers to buy firearms which were then provided to
criminal drug cartels in Mexico. It has later been reported that at
least two of these weapons were found at the scene where a Border
Patrol agent named Brian Terry was murdered.
I fully support Senators Grassley and Chambliss and regret that
repeated requests for information that were well within the purview of
the oversight responsibilities of Congress have been unreasonably
rejected. When a minority in the Senate is denied the usual and
customary information necessary for us to do our job, we are left
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with very few options. One of those options is to force a resolution by
exercising our rights as a minority to block cloture. That is not
necessarily a permanent move. It means debate continues on the
nomination and we cannot come to a vote. But I submit, if rational
minds would come together--if Senator Grassley and Senator Chambliss
could get the information they and their committees are entitled to and
discharge their oversight responsibilities--we could come much closer
to resolving the differences on this particular nominee.
Mr. CHAMBLISS. Mr. President, I rise in opposition to cloture on the
nomination of James Cole to be the Deputy Attorney General of the
United States.
Last December, I objected to further consideration of Mr. Cole's
nomination because of the refusal of the Department of Justice, DOJ, to
comply with reasonable document requests from the Senate Select
Committee on Intelligence. Unfortunately, the President decided to
circumvent the Senate and recess-appointed Mr. Cole on December 29,
2010.
Here we are 5 months later: the Justice Department is still thwarting
the Intelligence committee's oversight.
The documents we have requested all relate to the Guantanamo Detainee
Review Task Force that made recommendations to the Administration on
whether to transfer, release, or detain Gitmo detainees. Over 2 years
ago, the committee became aware of rising recidivism rates among former
Gitmo detainees. At that time, the rate was around 11 percent--it is
now above 25 percent. Congress has a unique obligation to the American
people to ensure that no more dangerous detainees are released from
Gitmo, and that those who have been released do not resume their
terrorist ways. Each one of the documents we are seeking is essential
to understanding why the task force made certain recommendations about
certain detainees, especially those detainees our intelligence
professionals judged were too dangerous to transfer.
The detainees remaining at Gitmo are among the worst of the worst,
yet many are still designated for transfer. Given the upward trend in
recidivism rates, the Intelligence Committee is reasonably concerned
that some of the detainees who have been or may be transferred to third
countries will reengage in terrorist activities. Lingering questions
about the monitoring capabilities of countries that have accepted
detainees add to these concerns.
In making its recommendations, the task force operated under guidance
and recommendations from the Attorney General. The Department of
Justice, however, refuses to provide a September 2009 Attorney General
memorandum that reportedly recommends that an entire category of
detainees be presumed to be eligible for transfer. If classes of
detainees are to be presumed to be eligible for transfer by DOJ, then I
think the Intelligence Committee should know about it and why such
guidance was considered appropriate.
The Department has also refused to provide the Intelligence committee
with the task force's recommendations for the disposition of the
detainees. The task force documents we have been given have entire
portions of their recommendations blacked out. This is no way to
conduct oversight and it certainly puts the committee at a disadvantage
in trying to understand why transfer decisions were made.
Interestingly, the Department has provided the recommendations made by
review boards during the previous administration.
As with the September 2009 memorandum, the Department argues against
giving this information to Congress because of ``deliberative
process.'' That assertion may work in a FOIA case or in the context of
executive privilege, but there is no legal basis for using it to deny
congressional oversight, especially where the documents pertain to
national security matters. It is time for the Justice Department to
abandon this baseless argument and give us the documents.
The Intelligence committee is also waiting for a list of the 92
detainees who were approved for transfer as of August 28, 2009, prior
to the application of the September 2009 memorandum. The Department
indicated in November 2010 that the list would be provided, but the
committee has yet to receive it.
Last Friday, we heard from the Department for the first time in
months, wanting to work something out on the documents in advance of
the cloture vote on the Cole nomination. This is a bit ironic,
considering that letters and e-mails from last year have gone
unanswered. The best thing they can do now is to honor our request and
give us the documents that we have requested.
The Department's obstruction of a congressional review is not the
only reason I am opposing cloture. Mr. Cole still has not explained
comments he made about the 9/11 attacks. In September 2002, he wrote an
op-ed in which he called these attacks ``criminal acts of terrorism
against a civilian population.'' Following this logic, he diminished 9/
11 to being no more than ``the scourge of the drug trade, the reign of
organized crime, and countless acts of rape, child abuse, and murder.''
He also argued that the protections of our criminal justice system
``must be applied to everyone to be effective.'' I could not disagree
more with this statement--no terrorist deserves the benefits of our
criminal justice system.
Mr. Cole has neither rejected these comments, nor really explained
why he made them. Until he does so, I have to question his judgment and
his suitability to be the second-in-command at the Justice Department.
It is for these reasons, I cannot support cloture on the nomination
of Mr. Cole at this time.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill 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 ask for the regular order.