[Congressional Record Volume 157, Number 165 (Tuesday, November 1, 2011)]
[Senate]
[Pages S6990-S6993]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
CONGRESSIONAL OVERSIGHT
Mr. GRASSLEY. Mr. President, today I wish to take a few moments to
talk about the importance of the oversight work of the Congress. It is
a very critical function of Congress. As one of the three branches of
government, Congress is a very important pillar of our government. Our
system provides for checks and balances between the three branches of
government. Not only do we in the Congress legislate, but we must make
sure the other two branches are not overstepping their power, and that
is the function of oversight.
I have been conducting oversight of the executive branch since I
first came to the Senate. I take oversight very seriously. It is often
an overlooked function for Members of Congress. It is not a glamorous
function. It is a lot of hard work.
Some people have said recently that my oversight work is political.
Quite honestly, people who say that are the ones who are, in fact,
political or may be ignorant of what I do because I happen to be an
equal opportunity overseer. I do not care if it is a Democrat or a
Republican occupying the White House; if something needs to be
investigated, I am going to investigate it.
In 2008, I was glad to hear the President-elect talk about the most
transparent government ever that he was going to institute under his
administration. Unfortunately, up to this point, this administration
has been far from transparent--at least far from transparent in the way
he said he was going to be so transparent. If any of us thought it was
bad before, it is worse now.
But my message about oversight is combined with a very important
reminder about the rule of law, a philosophy upon which our country was
founded. So I would like to talk about this administration's evasive
and disappointing response to Congress about two different policies:
first, the immigration policy and administrative enforcement of that,
and second, Operation Fast and Furious. I will first discuss
immigration.
Since the founding of our country, our immigration laws have been a
source of discussion. We were born a nation of immigrants and still are
welcoming to people coming to our country legally. We have welcomed men
and women from diverse countries and provided protection to many who
flee from persecution. We have been generous, and we will continue to
be generous. Yet we have seen our country face many challenges and have
attempted to restrict immigration levels. The first immigration law of
1790 tried to limit citizenship to certain individuals and institute
what is called the ``good moral character'' requirement. We created
quotas in the 1920s, to only do away with those quotas 45 years later.
We even provided amnesty to millions of undocumented and hard-working
people in the last big immigration law to pass Congress in 1986. Today,
we are faced with another challenge of how to deal with more than 10
million undocumented persons.
Congress struggles with this challenge on a yearly basis. It is
important for lawmakers to bear in mind that the policies we make
should benefit our country in the long term and that they must be fair
to current as well as future generations.
People in foreign lands yearn to be free. They go to great lengths to
be a part of our great country. It is a privilege that people love our
country and want to become Americans. At the same time, however, we
must not forget the great principle upon which our country was founded,
and that great principle is the rule of law. We want to welcome new
Americans, but we need to live by the rules we have set. We cannot let
our welcome mat be trampled on, and we cannot allow our system of laws
to be undermined.
As a Senator, like all of my colleagues, I took an oath of office to
honor the Constitution. I bear a fundamental allegiance to uphold the
rule of law. That is why I am deeply concerned about the immigration
policies that are coming from this White House. The President's
policies may be an impermissible intrusion on Congress's plenary
authority over immigration law. They are pushing the envelope, and
there is little transparency into their actions at a time when
transparency was promised by this administration at the time they were
sworn in.
As many of you know, last summer I exposed an internal homeland
security memo that outlines ways President Obama could circumvent
Congress and grant legal status to millions of undocumented
individuals. So this is where oversight becomes very important--whether
or not this memo is an intent to get around a law Congress passes which
the President of the United States, under his oath of office, has
pledged to faithfully enforce. This memo was entitled ``Administrative
Alternatives to Comprehensive Immigration Reform.'' That title in and
of itself kind of signifies efforts to get around law, to get around
what Congress intended. Its purpose was, in their words, ``to reduce
the threat of removal of certain individuals present in the United
States without authorization.'' Now why, if you are enforcing and
faithfully executing the laws of the United States, would you want to
``reduce the threat of removal of certain individuals present in the
United States without authorization''? Aren't those words, ``without
authorization'' in and of themselves an indication that people might be
here illegally?
The memo outlined more than a dozen ways to keep individuals in the
country and to provide them with benefits or protections. I, along with
my colleagues in the Congress, have asked repeatedly for assurances
that those options were not being explored. But, you know what.
Our concerns have not been addressed. The President and the Secretary
of Homeland Security have only said they do not plan to provide such
benefits to the entire population of undocumented individuals. They
claim they will use their discretionary authority and pursue relief on
a limited and case-by-case basis. To the extent to which it is limited
and it is case-by-case, I confess, the law probably provides for some
administrative discretion because if you are going to have people come
to this country, Congress is not going to be able to write a law that
is going to take every instance into consideration. But I go back to
that title: ``Administrative Alternatives to Comprehensive Immigration
Reform.'' So there is a need to change the laws on immigration, update
them. So if everybody admits there is that need, why do you need
administrative alternatives, unless you are trying to get around what
Congress intended?
So we are asking these questions, and yet we have no idea if it is
true that they want to do it strictly on a case-by-case and very
limited basis because we have reason to believe we are talking about
hundreds of thousands of people because we have no idea how many people
are truly receiving the benefits and what standards are being used when
determining that an individual is granted parole or deferred action.
These are the questions that, in our oversight capacity, we are asking,
but we are not getting very many answers, as I am going to show you
here.
Again quoting the title, ``Administrative Alternatives to
Comprehensive Immigration Reform,'' this memo from last summer also
included a proposal to lessen the ``extreme hardship standard.'' Under
current law, aliens are inadmissible for 3 to 10 years if they have
been unlawfully present in the United States for 180 days in the case
of a 3-year inadmissibility or 1 year in case of 10 years of
inadmissibility. The Department has discretion to waive the grounds for
inadmissibility if it would result in an extreme hardship. Again, I am
willing to grant that there is some leeway in the law here.
The amnesty memo states: ``To increase the number of individuals
applying for waivers and improve their chances of receiving them,
Citizenship
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and Immigration Services could issue guidance or a regulation
specifying a lower evidentiary standard for extreme hardship.'' Now,
``extreme hardship'' ought to mean the same from administration to
administration, not some special definition of ``extreme hardship''
because we have a President who maybe wants to find some way of getting
around the immigration laws because he does not want to work hard
enough to get immigration reform passed through the Congress.
Proponents argue that this redefinition of ``extreme hardship'' is
needed for family unity and that the 3-year and 10-year bars are overly
burdensome. Well, Congress did not consider the 3- and 10-year bars to
be overly burdensome or we would not have put them in the law in the
first place. If this standard is lessened, an untold number of
undocumented individuals will be able to bypass the 3-year and 10-year
bars that are clearly laid out in the Immigration and Nationality Act.
My concern is that this policy, if implemented, is a blatant way to
circumvent Congress and the law to keep as many undocumented aliens in
the United States as possible.
It is difficult to ascertain if this change or any other proposal
from the amnesty memo is being considered by the Secretary, so I asked
the Secretary about this very proposal when she testified before the
Judiciary Committee about 2 weeks ago. She admitted that existing
immigration law is difficult, but the Secretary would not deny that
discussions about changing the standards are even taking place.
Well, what about the memo to which I referred? Frankly, she refused
to comment about the proposal during the hearing. Indeed, she said she
was focused on exercising enforcement functions, which gets me to my
next issue.
A year after the 2010 amnesty memo circulated, we learned that the
head of Immigration and Customs Enforcement--and we use the acronym
``ICE'' for that--which is the agency responsible for enforcing the
law, apprehending and deporting undocumented people in this country,
directed his agents to use ``prosecutorial discretion'' on those with
whom they come in contact. What does this mean? In June of this year,
Assistant Secretary Morton released a memo directing ICE officers to
exercise prosecutorial discretion and to consider the alien's length of
presence in the United States, the circumstances of the alien's arrival
in the United States, particularly if the alien came as a young
child. Also, take into consideration the alien's criminal history, the
alien's age, whether there was service in the military, and whether
they came here to pursue education in the United States.
On August 19 of this year, Secretary Napolitano announced an
initiative to establish a working group to sort through an untold
number of cases currently pending before the immigration review office
and also before the Federal courts to determine if they can be
``administratively closed.'' This gets into big numbers. There are more
than 300,000 cases pending before the Executive Office of Immigration
Review. The Secretary claims this process will allow them to direct
resources at higher priority cases.
This memo and initiative outlined by the Secretary are concerning,
especially to those of us who said our country is based on the rule of
law. These policies seem to contradict that very important philosophy
underlying our whole system of law.
On September 26 of this year, I led 18 of my Senate colleagues in
sending a letter to President Obama expressing dissatisfaction with
these prosecutorial discretion policies. We said this administration
was encouraging undocumented aliens to come forward in hopes of relief.
This letter to the President is part of our constitutional
responsibility of oversight. It is going to the President of the United
States, who said he was going to have the most transparent
administration ever in the history of the country. So wouldn't you
think we would get a lot of answers?
We asked the President to rescind the June memo and end the
initiative outlined in August, and requested that he make the Secretary
available to all Members of the Senate to explain how his immigration
policies are consistent with the rule of law. It is a very simple
process: Have one of your Cabinet people come here and explain it all
to us.
Do you know what the President did? He asked a bureaucrat from the
Department to respond to us on his behalf. The letter from this
bureaucrat didn't address any points we made in our letter and shows a
complete disregard for the concerns we raised. I tell a lot of people
in both Republican administrations and Democratic administrations that
I am overseeing--doing my constitutional responsibility of oversight.
The longer you stonewall, when the truth comes out, the more egg you
are going to have on your face. That is going to be true in this
instance as well.
This is what we expect from the administration. We have many
unanswered questions about this prosecutorial discretion initiative.
For example, how many cases will the working group sort through? You
can quantify that pretty easily. What standards will be used for
adjudicating cases? In the rule of law, you ought to be able to tell us
what the process is and what the standard is. Will those already
ordered removed be considered for relief? In other words, if somebody
has already figured out you ought to be removed from this country, is
someone going to step in and say, no, maybe you don't have to be
removed? Will those with a criminal conviction be eliminated from
consideration for discretion? We ought to know if you commit a crime in
this country, besides coming here illegally, will you be removed or
will you be given some discretion--what you call prosecutorial
discretion? How much in taxpayer money will be expended for this
effort, and when will the working group finish its work? Will the
Department of Homeland Security keep the committee apprised and provide
detailed information on who is granted a benefit, including work
authorization? What will happen to individuals who have their cases
``administratively closed''?
Congress passes the laws, the President takes an oath to faithfully
execute those laws, and we have a constitutional responsibility to make
sure that what Congress intended is carried out. We are not saying that
maybe Congress's intent isn't being carried out. We want questions
answered to determine whether they are being carried out. These are
pretty simple questions to the President. We ask for the Secretary to
come and answer these questions, and that doesn't happen. We get a
letter back from some low-level bureaucrat who doesn't even answer the
question.
How far can you go, and be morally and ethically correct, as
President of the United States, saying at the time you were sworn in
that you are going to have the most transparent administration this
country has ever seen, and then you stonewall Congress on simple
questions such as this policy that you want to carry out, called
prosecutorial discretion?
We await answers and can only hope they will be more transparent
about these policies than on the amnesty memo--assuming we get answers
to our questions.
The future of our country hinges, in part, on the policies this
administration is making behind our backs. Congress has a role to play.
That is not my position; that is the position of our Constitution.
We need more sunshine in our government in Washington on amnesty and
numerous other issues, including one of my oversight investigations
that involves a Federal law enforcement operation that went critically
wrong.
I am now turning to Fast and Furious. This program was a multiagency
effort, run by Federal prosecutors in Arizona and supervised by
officials in the Justice Department headquarters here in Washington,
DC.
The Bureau of Alcohol, Tobacco, Firearms and Explosives, or ATF,
encouraged U.S. gun dealers--federally licensed gun dealers--to keep
selling guns to people known to be transferring weapons to third
parties. These buyers are called ``straw purchasers.'' There were lots
of reasons for the gun dealers--federally licensed gun dealers--to be
suspicious of this operation. The straw buyers were purchasing the kind
of assault rifles preferred by the Mexican drug cartels. They
repeatedly bought dozens of weapons at a time, and then returned days
or weeks later to buy dozens more. They paid with paper bags full of
tens of thousands of
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dollars in cash and bought very expensive, high-powered .50 caliber
sniper rifles.
All of this was plenty of cause for the dealers to report the sales
to the ATF as suspicious, and then stop making the sales in the future.
But the ATF had even more reason to be suspicious than the gun dealers
had.
The Drug Enforcement Administration, or DEA, had tipped off the ATF
about the activity of the ringleader, using information from a wiretap
in a related drug trafficking case. The ATF knew that some of the straw
buyers were on food stamps, or unemployed, so a legitimate explanation
for all the cash was very unlikely.
Most important, the ATF knew that the straw buyers' guns ended up at
crime scenes in Mexico just days or weeks after being bought in the
United States. ATF knew all this information from the beginning of the
investigation in late 2009.
As early as January of 2010, the DEA wiretaps had even collected
detailed information about who the ringleader was selling guns to, and
that information was available to the ATF. Yet our government allowed
the ring of straw buyers to grow and operate freely for about a year.
Starting in late 2009, agents who later blew the whistle on the
mishandling of the case were ordered to merely watch and record what
the straw buyers were doing but not arrest them. The agents were not
allowed to stop the straw buyers or even to question them. The agents
were not even allowed to continue following the guns once they were
transferred to unknown third parties or stash houses. Surveillance was
simply abandoned.
These details were apparently not provided to gun dealers, even
though these gun dealers cooperated with the ATF from the very
beginning. The government installed hidden cameras in at least one
store, and dealers notified ATF each time one of the straw buyers came
in for another purchase of guns.
By March of 2010, the ATF had gathered evidence that the intent of
the straw buyers was to transfer these weapons to criminals and to
Mexican drug cartels. The ATF applied for wiretap authority and
supplied all the necessary details to the Justice Department in
Washington. Yet it was not until December 15, 2010, that a single one
of the straw buyers was arrested.
Was it just by coincidence or was it for some other reason that the
day of the first arrest was the day that U.S. Border Patrol Agent Brian
Terry was murdered? Two of the weapons bought right under the ATF's
nose nearly a year earlier turned up at the murder scene.
Within a day, the straw buyers of those two guns were finally
arrested. The other straw buyers were indicted a few weeks later, in
January 2011.
ATF agents who knew the ugly truth blew the whistle. The
whistleblowers made sure that Congress and the Terry family were fully
informed.
I started asking questions, and I have been asking questions ever
since. But getting answers out of a Justice Department which is
stonewalling is like pulling teeth. At first, the Department explicitly
denied the allegations in writing, and officials implied it was all
hogwash, in a widely attended briefing for Senate Judiciary Committee
staff.
But then the evidence started coming out. Document by document,
witness by witness, the truth became so clear that it was no longer
deniable. An internal briefing paper explicitly said that the strategy
of the case was to ``allow the transfer of firearms to continue to take
place.''
E-mails proved that a gun dealer had prophetically worried that the
operation could lead to the death of a Border Patrol agent. But ATF and
Department of Justice officials reassured the dealers that cooperation
was still necessary. They falsely assured the dealer that there were
secret methods of stopping the guns before they went south.
The House Oversight Committee issued subpoenas and held two hearings.
My staff worked with them on two staff reports detailing the testimony
and the documents we have gathered. The Justice Department stepped in
and tried to control the flow of information, but we continued to
receive documents and information from confidential sources.
The Justice Department provided documents from the ATF files, but
until yesterday very few documents from the Department of Justice
files. The Department waited to deliver them until Halloween, to
produce the first substantial batches of documents from the Department
of Justice, even though we asked for documents at the beginning of the
summer.
They also waited until the night before the head of the Criminal
Division, Lanny Breuer, was set to testify before the Judiciary
Committee to provide 652 pages of documents. Mr. Breuer also admitted
to knowing all about gunwalking in what is referred to as Operation
Wide Receiver as far back as April 2010. We have to go through these
new documents to see what they contain. The first smaller batch of
documents included several memos to Attorney General Holder that
appeared to contradict the Attorney General's earlier claim that he had
never heard of Fast and Furious until sometime in April of this year.
The documents also show that Attorney General Holder's current chief
of staff received a detailed briefing 18 months ago, in March of 2010.
He was the Acting Deputy Attorney General at the time, so, obviously,
the No. 2 person in the Justice Department.
The Deputy Attorney General even took detailed handwritten notes on
the presentation. However, Attorney General Holder says he didn't know
anything about it until after the controversy became public. That is
also what Mr. Breuer said today as well.
I know the Attorney General was at least aware of the whistleblower
allegations on January 31 of this year because I personally handed him
two letters about the issues in my office on that very day. As for
exactly what else he knew and when, his statements will have to be
tested against the rest of the evidence as we continue to investigate.
Included in the documents released recently were e-mails between
senior Justice Department officials that explicitly talked about ``gun
walking,'' and these memos were dated October 2010. ``Gun walking'' is
a term the whistleblowers use for sitting by and not stopping the guns,
even though the guns could have been stopped and people arrested. These
senior Justice Department officials were discussing whether the head of
their criminal division should attend upcoming press conferences on
Fast and Furious and Wide Receiver.
That second case is the one Mr. Breuer admitted to knowing about
yesterday, where ATF had walked guns even before Fast and Furious.
Their concern was over how tricky the press conference could become
because of the guns that were walked.
You know, it is kind of common sense. If you can't talk about it in a
press conference, you probably shouldn't be doing it in the first
place.
So these memos will show they clearly anticipated the controversy
even 2 months before Agent Terry was murdered and before the
whistleblowers came to me about it. This makes the initial false
denials even more outrageous.
Some have seized on the reference to a case from the previous
administration that suggests that gun walking was nothing new and that
our investigation is partisan. Now, let me be clear: There is nothing--
absolutely nothing--partisan about my desire to get to the bottom of
Fast and Furious. My motivation is to make sure nothing like this ever
happens again, that the Terry family gets the truth about their son's
murder, and also the untold number of Mexican citizens who may have
been victims of this operation as well ought to be righted.
During my testimony before the House committee, I asked the Members
to put aside politics and just listen to the Terry family because they
were going to testify later on, and also to listen to the
whistleblowers as they testified that very day. But some people see
everything through the lens of their own politics. Rather than listen
to the evidence, they want to blame the second amendment for Agent
Terry's death. Whoever pulled the trigger is the one to blame, not the
second amendment. That is the person who should be brought to justice.
The straw buyers who illegally bought the guns and the government
officials who stood by and watched them do it all need to be held
accountable.
So that is the story of Fast and Furious so far. But what does it
tell us about the rule of law in this great
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country we call America? When we talk about the rule of law, we are
usually referring to the idea that government should make decisions
consistently and those decisions be made according to law. Those
decisions should be based upon some neutral principle rather than on
someone's personal whims or bias. Those decisions should apply to
everyone equally without allowing a lot of discretion for government
officials to pursue their own agendas. In short, we should be ruled by
laws, not men.
Our government gets its authority from the consent of the governed.
Representatives elected by the people write the laws, and the executive
branch enforces them. However, over the years, our government has grown
so big and so complex it is hard to hold government officials
accountable for how they apply the law. In Fast and Furious it has
taken us months to sort out responsibility because of this problem.
There are dozens of bureaucrats pointing fingers and shifting blame.
There are dozens of lawyers parsing words and shuffling paper.
At the end of the day, what we know is that several people in
government decided not to enforce the law--the law they took an oath to
faithfully execute. These people believe it was within their discretion
to allow straw purchasers to operate, despite all the evidence the law
was being broken. In most other field offices, obvious straw buyers
were stopped, questioned, and arrested but not in Phoenix, AZ.
As one of the whistleblowers put it: Operation Fast and Furious
represented a ``colossal failure of leadership'' at every level that
was aware of it.
Just what each official knew at each level in each agency is
something that needs to be clear before our investigation is complete.
For the rule of law to function properly, there needs to be
supervision, accountability, and consistency. Remember the transparency
the President promised? Transparency leads to accountability.
Government officials must know their discretion to play around in gray
areas of the law has limits. It is the job of elected leaders to
enforce those limits on behalf of the people who elect them. But there
are so many officials and so many decisions that accountability seems
hard to impose.
The President himself recognized this in the context of Fast and
Furious back in March of this year. When the President was first asked
about Fast and Furious on Spanish-language television, he was pressed
about how he could not have known about it--kind of the very same
questions we are asking the Attorney General. He was asked: How could
you not have known about it? The free press in America asked the
President how he could not have known about Fast and Furious, and by
then it was 3 months after a Border Patrol agent had been murdered and
illegally sold guns had appeared at the scene of the murder.
This is how the President responded on Spanish-language television.
This is a pretty big government, the United States
Government. I've got a lot of moving parts.
Mr. President, exactly. That is the problem. Government needs to be
limited, government needs to be focused, and government needs to be
constrained by the rule of law.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Ohio.
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