[Congressional Record Volume 160, Number 78 (Thursday, May 22, 2014)]
[Senate]
[Pages S3262-S3267]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           UNANIMOUS CONSENT REQUESTS--H.R. 4031 and S. 1982

  Mr. RUBIO. Thank you, Madam President.
  I am here on the floor today to talk about an issue that has received 
a tremendous amount of attention, and

[[Page S3263]]

rightfully so, in the last few weeks and it is the outrage of what is 
happening at the Veterans' Administration.
  Let me start by saying certainly people need to be held accountable. 
This should not be and it surely is not a partisan issue. I think we 
all have a deep commitment to helping our veterans, the men and women 
who spend time away from their families and put their lives on the line 
to defend this country, to whom were made promises that when they come 
back home they will be taken care of, especially those who have been 
harmed when serving their country.
  We are heartbroken and outraged at the news that, in fact, the agency 
that is supposed to take care of them is not doing so. I think what is 
even more troubling is that this appears to be a systemic problem. This 
is not simply an isolated incident in Phoenix or some other institution 
in the country. This is now rearing its ugly head in every part of this 
country that we look into. You can imagine not just as an American am I 
deeply concerned about this but as a Floridian. Florida is a State with 
an enormous veterans population, including my brother--men and women 
who have served our country and have done so with great courage and 
dignity who now have health care needs that require immediate and 
urgent attention.
  Just a moment ago on a television interview it was brought to my 
attention the story of a young man, a gulf war veteran who has a brain 
injury, who has been waiting for weeks to even be able to see anyone, 
in fact has been waiting for months with no end in sight as to when 
that is going to end. This needs to be addressed.
  Yesterday we all watched with great attention as the President 
addressed this issue and expressed outrage, rightfully so, of what is 
occurring. What the President said is that over the next week there 
will be an initial report and ultimately a report at the end of the 
month about what needs to be done to improve the system and, more 
importantly, who needs to be held accountable. I think that is critical 
here, because one of the things we are learning is not simply that 
there is a systemic problem in the Veterans' Administration, but that 
there has been a deliberate effort by some within the Veterans' 
Administration to cover it up or to make things look better than they 
actually are. That should trouble us even more because the immediate 
reaction when an agency is confronted with a problem should be ``we 
need to fix this'' and instead the reaction by some seems to be ``we 
need to cover this. We need to make this look better than it really is. 
We need to diminish this.''
  This is completely unacceptable and people need to be held 
accountable for this. If in the Senate among the men and women who 
serve and work here for us some were derelict in their duties, they 
would lose their job. If in the private sector someone did not do their 
job, they would lose that job. In the military chain of command, if a 
commanding officer of a unit did not do his or her job, they would lose 
their job, and their superiors would have the ability to immediately 
discipline them.
  So I think many Americans would be shocked to learn that even if the 
Secretary wanted today to fire executive managers within the agency, he 
cannot. Instead, he has to institute a long and drawn-out process, 
leading to this absurd conclusion that you are more likely to receive a 
bonus or promotion than you are to have been fired because of 
mismanagement and dereliction of duty. That is completely unacceptable.
  We have to remember that the vast majority of the VA's more than 
300,000 employees and executives are dedicated and hard-working people. 
Their Department's well-documented reluctance to ensure that leaders 
are being held accountable for mistakes is not only tarnishing its 
reputation, it unfortunately is impacting many of these hard-working 
men and women who are doing their jobs within the agency.
  What I did a few weeks ago, in conjunction with my colleague from 
Florida, Jeff Miller, is file a bill. It is a very simple and 
straightforward bill. The bill states that the VA Management 
Accountability Act of 2014 would simply give the VA Secretary the power 
to fire or demote senior executive service employees based on their 
performance. It is a power similar to the power the Secretary of 
Defense already has, for example, to remove military general officers 
from command, and, of course, it is the same power any one of our 100 
Senators has to remove a member of their staff.

  This bill passed yesterday in the House of Representatives, and it is 
sitting here on the desk in the Senate. It passed yesterday with an 
overwhelming bipartisan majority of Members of both parties who are 
outraged by what is occurring and want to bring accountability.
  In a press conference yesterday, the White House indicated that they 
are very open to this concept and that they were interacting with 
leaders on it. We called the White House and asked them about it. They 
also indicated an openness to it, although they shared that they did 
have some concerns. They didn't make any suggested edits to the bill. 
They simply said they had some concerns, but in general they were 
supportive of this concept.
  Earlier today during an Appropriations Committee meeting, Senator 
Moran offered this very bill as an amendment, and it was adopted by 
voice vote without a single objection.
  Here is where we stand: I have come to the floor today to give my 
colleagues the opportunity to send this to the President before we 
leave for the Memorial Day recess. We have an opportunity right now to 
take up the bill that the House just passed by an overwhelming 
bipartisan majority, enact it into law by unanimous consent, and send 
it to the President so he can sign it. So when the results of that 
investigation come to his desk in a week or month from now, and that of 
the Secretary, they can discipline and/or fire the people who have not 
done their jobs and put our veterans in harm's way with regard to 
services the VA is supposed to offer. That is all this bill does--
nothing more and nothing less.
  We are giving the Secretary--appointed by this President and 
confirmed by this Senate--the opportunity to be able to fire employees 
of his agency who are not doing their jobs. That is all we are asking 
for. It is not more complicated than that. I do not understand why 
anyone would not support that concept.
  It is right here for us. To everyone around here who is talking about 
how we need to quickly act, here is your chance. This is a very 
straightforward bill. My hope is that it will pass unanimously so we 
can truly say it is bipartisan.
  We are not telling them whom they need to fire; we are giving the 
Secretary the power to hold the people who work under him accountable. 
This will also apply to future Secretaries as well. That is all this 
bill does. I hope we will be able to do that today.
  I think if it were put to a rollcall vote on the floor, it would pass 
by an overwhelming majority. That is why, Madam President, I ask 
unanimous consent the Senate proceed to the immediate consideration of 
H.R. 4031, which was received from the House, and I further ask consent 
that the bill be read a third time and passed and that the motion to 
reconsider be considered made and laid upon the table, without any 
intervening action or debate.
  The PRESIDING OFFICER. Is there objection?
  Mr. SANDERS. Reserving the right to object, Madam President, I thank 
Senator Rubio for his remarks, and I think many of us share the exact 
same concerns he has raised. When men and women put their lives on the 
line to defend our country, they are entitled to the best quality 
health care we can provide to them.
  In my view and I think in the view of virtually every veterans 
organization, the VA does provide good-quality health care to those 
people who access the VA system, but there are very serious problems in 
terms of access, there are serious problems regarding waiting lists, 
there are serious problems regarding the possibility of hospitals 
keeping two sets of books, and we are going to get to the root of those 
issues.
  The one thing we do not want to do is politicize the well-being of 
America's heroes.
  I have a quote from an editorial in the Washington Post:

       The men and women who have served their country in uniform 
     deserve better than delay or denial of the medical care they 
     need and have earned. So it is crucial to get to the bottom 
     of allegations of misconduct at the

[[Page S3264]]

     nation's veterans hospitals. America's veterans also deserve 
     not to be treated as so many pawns in election-years 
     gamesmanship--but that sadly is proving to be the case in 
     Congress's increasingly hyperbolic response.

  It goes on:

       That the extent of wrongdoing is unclear doesn't seem to 
     matter much to those more interested in scoring political 
     points. How else to explain the knee-jerk calls, mainly by 
     Republicans in the House and Senate, for the ouster of 
     Veterans Affairs Secretary Eric K. Shinseki or the ill-
     advised and punitive legislation aimed at VA workers?

  I will just make this point: I happen to think the bill that was 
passed in the House yesterday has many important provisions with which 
I happen to agree. But as the Senator from Florida knows, we have not 
held a hearing on this legislation, and some of us are old-fashioned 
enough to know that maybe folks in the Senate might want to know what 
is in the bill before we vote on it.
  The Senator from Florida is right--it passed with very strong support 
in the House. In my view, a similar bill containing some of the salient 
provisions in the House bill will pass the Senate, but it is important 
that we discuss that bill.
  One of the concerns I have is that I do not want to see the VA 
politicized. It is one thing to say--which I agree with--that if a 
hospital administrator is incompetent, the Secretary should be able to 
get rid of that administrator without a whole lot of paperwork. I agree 
with that. It is another thing to say that if a new administration 
comes in--whether it is Democratic or Republican--somebody sitting in 
the Secretary's office can say: I want to get rid of 20 or 30 or 50 
hospital administrators because we have other people we want in there. 
We can just get rid of them, and they don't have a right to defend 
themselves.
  I worry about that.
  Clearly we have to discuss the issue. I suggest that the Senator from 
Florida understands that it is probably a good idea to discuss an issue 
before we vote on it.
  The bottom line for me is, yes, every top administrator at the VA has 
to be held accountable. I do not want to see an enormous amount of 
paperwork and obstruction go forward before we can get rid of 
incompetent people. But before we vote on legislation, it might be a 
good idea to understand the full implications of that legislation, and 
there are some aspects of it with which I think some of us have 
concerns.
  I have a few more points on that issue. I hope the Senator from 
Florida agrees with me that we have to be certain the VA is able to 
recruit and retain high-quality leaders and managers, especially when 
the VA is in competition with other Federal agencies for those leaders. 
To that end it is vital to ensure we are fostering an environment at 
the VA where individuals feel as if they are protected from the 
political whims of their leaders. That is the point I made earlier.
  There are other areas that concern me in terms of setting precedents 
that may not be a good idea, but the bottom line is I think there are 
important provisions in the bill that passed the House. I want to work 
with Senator Rubio on this matter, and I think the administration wants 
to work with him.
  If I might, I will make another point, which is that I was very happy 
to see so much concern being paid to veterans' needs over the last few 
weeks. As chairman of the committee, I am very happy to see that.
  I say to the Senator from Florida and others that he is well aware 
that the veterans community faces many serious problems above and 
beyond what we have been hearing over the last few weeks with regard to 
the VA. We have 200,000 men and women who have come back from Iraq and 
Afghanistan either with PTSD or TBI. I would assume my friend from 
Florida agrees they need to get the quality care they deserve.
  An hour or so ago I had the privilege of being honored by the Gold 
Star Wives. They are the widows of men who died in action. I brought 
legislation to the floor that would have made it possible for Gold Star 
Wives to be able to get a college education under the post-9/11 GI 
bill. That bill received 56 votes. One Senator was absent; otherwise, 
we would have had 57 votes. Only two Republicans supported that bill. I 
suspect that Senator Rubio and many others support that. That is in the 
bill I brought to the floor.
  Right now we have--as I am sure Senator Rubio knows because the 
problem exists in Vermont, so it most likely exists in Florida as 
well--70-year-old women, in most cases, who are taking care of disabled 
vets, and they don't get the support they need. They are on duty 24/7, 
and they save the government money because those wounded veterans are 
staying at home. They need some help. I want to see them get help, and 
I hope Senator Rubio will work with me to make sure they get that help.
  Senator Rubio is aware, as is the Presiding Officer, that there is 
great concern not only in the military--the VA and DOD--but in the 
civilian sector that there is too much use of opiates to treat 
problems. We have a very serious problem in that area. We have language 
in our overall provision that extends help to the VA to move forward to 
give our veterans alternative treatments other than opiates, and we 
think that is a very important piece of legislation.
  We have legislation which has passed which provides 5 years of free 
health care in the VA for those who served in Iraq and Afghanistan. We 
think it is important to extend that to 10 years.
  Many veterans out there do not have access to decent-quality dental 
care. It is a problem in Vermont, and I suspect it is a problem in 
Florida. We want veterans to get that care as well. There is bipartisan 
support for advanced appropriations for VA, and we have that in our 
legislation.
  While the VA is making good progress in cutting back the backlog and 
moving from paper to a digital system, I want to see them do better. We 
have language in there that would push them to do better.
  Just this morning, Senator Burr and I were at a hearing that dealt 
with the educational problems facing veterans who come back from the 
battlefield. There are problems when they go to college. Most of us 
think veterans should be able to take advantage of instate tuition in 
the State in which they are living.
  Sexual assault has been a very serious problem in the military, and 
we want the VA to do better. Et cetera, et cetera.
  I thank Senator Heller and Senator Moran for voting for this bill, 
along with every Democrat. I am very glad my Republican colleagues are 
now beginning to focus on veterans issues, and we need to step to the 
plate to help not only our veterans but their families, and that is the 
legislation I have offered.
  I say to Senator Rubio through the Chair that your legislation has 
many important provisions with which I happen to agree. There are some 
that I think need work, and we are going to hold a hearing on that 
legislation and other legislation in early June.
  I respectfully object to that legislation right now, but I ask 
unanimous consent that the Senate proceed to Calendar No. 297, S. 1950, 
with the Sanders amendment, which is at the desk and is the text of S. 
1982, the Comprehensive Veterans Health and Benefits Military 
Retirement Pay Restoration Act. That is the comprehensive legislation 
supported by virtually every veterans organization in the country, 
millions of veterans, and the American people. It says ``thank you'' to 
the veterans who put their lives on the line to defend this country, 
and we are going to be there for you.
  I ask unanimous consent that this legislation be passed.
  The PRESIDING OFFICER. Objection is heard to the request from the 
Senator from Florida.
  Is there objection?
  The Senator from Florida.
  Mr. RUBIO. Reserving the right to object, I wish to address a couple 
of points. The first is on the issue of politicizing this. I agree. In 
fact, that is why I have not come forward and said that the Secretary 
should resign. There are times in this process when that is important. 
There are people who were appointed by the President who are clearly 
not doing their jobs, and it is our job as overseers of the executive 
branch of the government to step forward and say that.
  I have said let's give the Secretary a chance to see what happens 
here. I may end up asking for his resignation at some point as more 
information comes out, but at a minimum I think he deserves an 
opportunity--and his successors, whoever they may be--to hold the

[[Page S3265]]

people underneath him accountable. They don't have the power to do that 
now.

  Also notice when I came to the floor today, I have said absolutely 
nothing of a partisan nature. I am not claiming this is a crisis 
created by Democrats or by another party. On the contrary, I said this 
is a solution that has had strong bipartisan support in the House and 
strong bipartisan support in the committee today. This issue may become 
politicized in the sense that it seems all of the reluctance to move 
forward is coming from one side of the equation, but that does not 
necessarily have to be. In fact, I will tell my colleagues right now 
that I believe if this came to a vote, the overwhelming majority of the 
Members of the majority would support this legislation I have put 
forward today.
  Two other points that were raised, one being that there have been no 
hearings. I would respectfully disagree. There was a hearing on it 
today. This was offered. This specific language was offered in the 
committee, and with little debate and no dissent, it passed by voice 
vote. For those watching at home, here is what voice vote means: They 
don't even call the roll. They basically ask Members: Is anyone against 
this? No one said they were. This language was adopted today in a 
committee.
  Here is my second problem. I am glad to hear there are going to be 
hearings with regard to this issue, and I think that is important 
because I am not claiming the bill I am asking us to take up today and 
pass would solve all of the problems. There are still serious systemic 
problems within that agency, and a hearing needs to address this and 
find responsible solutions to those problems. So a hearing is called 
for.
  What I am asking for is very simple: Give the Secretary, appointed by 
a President of a party different than my own, the power to fire 
employees underneath him who are not doing their jobs, so they know 
they are being held accountable. That is all I am asking. That is all 
this bill does. It is that straightforward. I don't think any of us 
want to go home for the Memorial Day recess and when we are asked: What 
are you doing on this issue, our answer is: Well, in about 15 days we 
are going to have a hearing on this crisis.
  Meanwhile, the list goes on and on of the outrages that are coming 
out of this agency. Every single day more cases are coming out about 
veterans who are not being treated fairly and appropriately, and in 
some cases, in my opinion, criminally, by this incompetence we see out 
of some in the Veterans' Administration. This is a matter of urgency, 
because while we are gone on our recess, the President next week is 
going to get a preliminary report on what is going on. It may very well 
be that he wants to see some people fired, and it may very well be the 
Secretary will want to fire some people in senior executive positions 
and he will not be able to do that. All I am asking for is not to give 
us the power to fire them but to give the administration the power to 
fire them and hold them accountable.
  Regarding the bill the chairman has offered on the floor, this bill 
has already been debated, and there are problems with this bill, which 
is an extensive piece of legislation with many good elements in it, but 
it also has a cost issue at a time when our Nation owes close to $18 
trillion. That was the reason so many on my side of the aisle objected 
to it, and that is why I object to the motion made today by the Senator 
from Vermont.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from Vermont.
  Mr. SANDERS. Madam President, let me reiterate. When I quoted the 
Washington Post and when I talked about politicalization, I wasn't 
suggesting the Senator from Florida was being political on the floor 
today. What I was suggesting about politicizing the VA is if we have a 
situation, for example, where a new Secretary comes in or a new 
administration comes in and can fire wholesale hospital administrators, 
without the ability to defend themselves, I think that is not the kind 
of system the Senator from Florida would want or certainly I would 
want.
  So how we address this issue is important. I would suspect that while 
this issue may have been taken up in committee today, I doubt very much 
there were any witnesses who testified about this bill.
  Second of all, I found it interesting that the Senator from Florida 
said--and he is right that other Republicans have raised this point. 
The legislation I introduced, which again has the support of the 
American Legion, DAV, Vietnam Vets, Veterans of Foreign Wars, Iraq-
Afghanistan Veterans of America, Paralyzed Veterans of America--he is 
right--it costs money. He is right. This country has a deficit. He 
would be right if he said that going to war in Iraq and Afghanistan has 
cost us trillions of dollars, which is one of the reasons we have the 
deficit we have. But I believe from the bottom of my heart that if we 
go to war, if we spend trillions of dollars on that war, that when our 
men and women come home from war, some wounded in body, some wounded in 
spirit--I don't want to hear people telling me it is too expensive to 
take care of those wounded veterans. I don't accept that. If we think 
it is too expensive to take care of veterans, don't send them to war.

  So let me reiterate my view, as the Senator from Florida has raised 
an important issue. We are going to address it as quickly as we can, 
and we are going to address other issues facing our veterans who on 
this Memorial Day need to know we are there for them and their 
families.
  Mr. RUBIO. Madam President, how much time remains?
  The PRESIDING OFFICER. Under the previous order, the time until 1:40 
is reserved for the Senator from Kentucky.
  Mr. RUBIO. Not seeing the Senator from Kentucky, I ask for 1 minute 
of that time to make the following point----
  Mr. SANDERS. Madam President, who has control of the time right now? 
Do I have the time?
  The PRESIDING OFFICER. The time of the Senate is controlled by the 
Senator from Kentucky or his designee.
  Mr. SANDERS. Madam President, let me suggest to the Senator from 
Florida that we divide the remaining time, if he wishes to take a 
minute or two and I will take a minute or two; how is that?
  Mr. RUBIO. That is fine with me.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. RUBIO. Madam President, a bunch of issues were raised about the 
cost of the war in Iraq, how much money we spent, and how good we are 
at spending that money for the veterans. I think that is a valid debate 
and it is a debate we should have and should continue to have in this 
country. If we need to spend more money on these agencies, there are 
plenty of other places in the budget to find it, and we should work to 
make sure cost is not an issue.
  But right now the central debate on the issue of what is happening in 
the VA has not centered around the fact that there are costs getting in 
the way. The central debate--and my colleagues know the President 
yesterday, in his press conference he held, said the central focus is 
on the management, the operations of this agency. Critical to the 
effectiveness of any agency is accountability; the ability to hold 
people accountable, including by taking away their jobs.
  Think about this for a moment. The argument that has been made today 
about a new director can come in and fire the people who work 
underneath him or her, that argument could be made about virtually any 
organization on the planet. One could make that argument for staffers 
in the Senate, that we want to protect them, so if a new Senator is 
elected from a State, they can't hire their own staff.
  The point I am trying to make--this is very simple. I get there are a 
lot of other issues we can talk about. There is one issue I want us to 
focus on, and that is this: We have a chance today, before we leave for 
the Memorial Day recess, to pass a bill that gives the Secretary that 
President Obama appointed the power to fire executives underneath him 
if they haven't done their job--a power he doesn't have right now. We 
have the chance to pass it on the floor. All we have to do is agree to 
it and it goes to the President to sign. We can then go home and say we 
have taken an important step in instituting accountability on this 
important issue, which the whole country is talking about, and we are 
walking away from that opportunity.

[[Page S3266]]

  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. SANDERS. We are not going to walk away from anything, but we are 
going to do it right. Again, the argument that when you run a health 
care system which has 151 medical centers, has some 900 community-based 
outreach clinics, has 300,000 employees that a new President can start 
wiping out, without necessarily giving people the right to defend 
themselves, does not make any sense to me.
  So we are going to look at the positive provisions in Senator Rubio's 
bill, and I think there are some. I would say to the Senator from 
Florida, I think we are going to reach an agreement. I think the 
Senator from Florida is going to be happy. I think it will be a good 
bill and we will reach consensus around it and I think we have to do 
that.
  On the other hand, I wish to reiterate the point I made about money. 
Senator Rubio is right, that one of the reasons we only had two 
Republican votes for a comprehensive piece of legislation that 
addresses the issues that the veterans communities brought to us--it is 
not a Bernie Sanders bill, it is a bill that listened to the needs of 
veterans and we said we hear you.
  Once again, I would just say to the Senator from Florida, I don't 
think--I was just literally an hour ago at a function of the Gold Star 
Wives organization. These are women who have lost their husbands in 
battle. I think that under the post-9/11 GI bill, a very good and 
important piece of legislation, wives should have the right to use that 
legislation to go to college, get an education, so they can get better 
jobs. If I brought that bill to the floor today, I suspect I would have 
unanimous support, and I think that out of our committee the bill I 
brought forth, many provisions had unanimous support and many 
provisions were Republican provisions--good provisions, bipartisan 
provisions.
  So what I say to my friend from Florida is thank you. The Senator's 
bill is an important bill and it is going to be dealt with and it will 
be dealt with in the very near future.
  Mrs. FEINSTEIN. Madam President, I support the nomination of David 
Barron to serve on the U.S. Court of Appeals for the First Circuit.
  There is no question that David Barron has the background and 
qualifications for this position.
  Consider his credentials: over a decade as a Harvard law professor; 3 
years at the Office of Legal Counsel, OLC, in the Clinton 
administration, and another 2 years at OLC under President Obama as the 
Acting Assistant Attorney General in charge of that office--during 
which time he was awarded the Office of the Secretary of Defense Medal 
for Exceptional Public Service and the National Intelligence 
Exceptional Achievement Medal from the Office of the Director of 
National Intelligence; he clerked for Justice John Paul Stevens and 
Ninth Circuit Judge Stephen Reinhardt; he earned his bachelor's and law 
degrees from Harvard; and a substantial majority of the ABA Committee 
found him to be ``well qualified,'' their highest rating.
  In sum, David Barron's record shows that he will be a jurist of the 
highest caliber.
  He also has a strong record of standing up for what is right on many 
issues, whether it is campaign finance or gay rights.
  Many distinguished individuals in both parties have written to the 
Judiciary Committee to support Professor Barron. Among them are: Jack 
Goldsmith, a Harvard Law professor and former head of OLC under 
President George W. Bush, Michael McConnell, conservative law professor 
and former Tenth Circuit judge, who described Barron as ``one of 
President Obama's two or three best nominations to the appellate 
courts;'' Charles Fried, law professor and former Solicitor General 
under President Reagan; 15 former career attorneys at OLC who served in 
administrations of both parties; and Ron George, former chief justice 
of California and someone I deeply respect.
  Chief Justice George wrote:

       As a person who served for 38 years in a state court 
     system, the last 14 years as chief justice of California, I 
     have been particularly impressed by Mr. Barron's 
     understanding and respect for the critical role played by the 
     states and their courts in our federal system.

  I respected the strong desire of some of my colleagues to have access 
to the two OLC memos related to the targeted killing of an American 
named Anwar al-Awlaki. Those memos were authored while Barron was 
Acting Assistant Attorney General at OLC.
  However, I regret that even though the administration made those two 
opinions available to all Senators and even though the administration 
has recently decided to make the OLC analysis public, some still insist 
on delaying a vote on Professor Barron's nomination.
  Let's contrast David Barron's nomination with that of another former 
head of the Office of Legal Counsel, Jay Bybee, who led the office from 
2001 to 2003.
  He was in charge of OLC when it produced an opinion saying 
waterboarding and nine other so-called enhanced interrogation 
techniques were not torture. On August 1, 2002, Mr. Bybee signed an 
opinion that set an unconscionably high bar for torture by saying that 
``physical pain amounting to torture must be equivalent in intensity to 
the pain accompanying serious physical injury, such as organ failure, 
impairment of bodily function, or even death.'' That opinion was 
withdrawn during the Bush administration by Bybee's successor, Harvard 
Law Professor Jack Goldsmith.
  Under Bybee, OLC also produced opinions about President Bush's 
Terrorist Surveillance Program that contain very troubling legal 
analysis. Because those opinions remain classified, I will not describe 
them here other than to note that they authorized a secret surveillance 
program that involved the collection of the content of communications 
without a court order and was in clear violation of the Foreign 
Intelligence Surveillance Act. Those OLC opinions also were withdrawn 
by Bybee's successor, Professor Goldsmith.
  Despite the fact that those opinions were produced when he was head 
of OLC, Jay Bybee was nominated by the Bush administration to a Nevada 
seat on the Ninth Circuit. He was confirmed 74 to 19 in March 2003. I 
was one of 19 voting no.
  Why would we confirm the man who approved the so-called ``torture 
memos'' and led OLC when it approved President Bush's surveillance 
program but delay David Barron, who produced superior legal work as 
head of OLC? The only reason I have heard is that Senators may believe 
that the two OLC opinions on Anwar al-Awlaki should be made public. Let 
me address that.
  First, this week the Department of Justice took steps to ensure that 
the OLC analysis will be made public. The Justice Department has 
decided not to appeal a court order from the Second Circuit Court of 
Appeals requiring the OLC analysis to be made public. So this will 
happen in the near future.
  Second, Professor Barron left OLC in 2010--well before the strike 
killed Awlaki in Yemen in September 2011. Since 2010, Professor Barron 
has been in academia.
  It wasn't Barron's decision to withhold the OLC memos from Congress 
or from the public.
  Let me quote from Professors Laurence Tribe and Charles Fried, both 
legal experts often on opposite sides of issues. They wrote an op-ed 
together about Barron in the Boston Globe. It reads, in part:

       [Barron] has not advocated, much less ordered, the 
     withholding of any documents. His job as acting head of the 
     Office of Legal Counsel was to provide thorough, accurate, 
     and unvarnished legal opinions to the president and other 
     executive officials, based on the traditional legal 
     authorities of text, history, and precedent. We have every 
     reason to believe that is precisely what he did, and there is 
     absolutely no evidence to the contrary.

  In fact, Professor Barron implemented policies that have made OLC 
more rigorous, professional, and transparent.
  First, when he was acting head of OLC, Barron ordered the withdrawal 
of several opinions related to coercive interrogation that had been 
issued during the Bush administration.
  Second, on July 16, 2010, Professor Barron wrote a memo entitled 
``Re: Best Practices for OLC Legal Advice and Written Opinions'' that 
updated previous OLC guidance. It said that OLC ``operates from the 
presumption that it should make its significant

[[Page S3267]]

opinions fully and promptly available to the public. This presumption 
furthers the interests of Executive Branch transparency, thereby 
contributing to accountability and effective government, and promoting 
public confidence in the legality of government action.'' This 
presumption did not exist in the Bush administration; David Barron was 
responsible for establishing it as OLC policy. Given Barron's 
impressive record and his shift of OLC toward more transparency, it 
simply is wrong to oppose his nomination because a classified OLC 
opinion on drone strikes has not been made public yet, a decision that 
was not even his to make.
  Since the OLC opinions on Anwar al-Awlaki that Professor Barron wrote 
seem to have become the issue holding up this nomination, let me close 
with a reminder of the specific plotting Awlaki was involved in before 
he was killed in 2011.
  True, Awlaki was a dual U.S.-Yemeni citizen, but he served as chief 
of external operations for Al Qaeda in the Arabian Peninsula, AQAP. In 
that position, he planned and directed attacks against the United 
States, making him an imminent and continuing threat.
  Awlaki played a significant operational role in AQAP. In 2010, the 
United States designated Awlaki a ``Specially Designated Global 
Terrorist'' for ``supporting acts of terrorism and for acting for or on 
behalf of AQAP.''
  Awlaki publicly urged attacks against U.S. persons and interests 
worldwide. He worked with another American named Samir Khan to publish 
AQAP's Inspire Magazine to encourage terrorist attacks against innocent 
men, women, and children in the United States and elsewhere. As a 
reminder, Inspire Magazine provided the Tsarnaev brothers in Boston 
with the instructions for making the bomb they used at the Boston 
Marathon last year.
  Let me offer just a few examples of Awlaki's direct involvement in 
terrorist operations:
  Christmas Day Attack--In December 2009, Awlaki directed operative 
Umar Faruk Abdulmutallab, who attempted to detonate an explosive device 
aboard a Northwest Airlines flight to Detroit on Christmas Day. Awlaki 
instructed Abdulmutallab to detonate the device while over U.S. 
airspace to maximize casualties.
  Fort Hood Attack--Fort Hood shooter Nidal Hasan attended al-Awlaki's 
sermons in Virginia and corresponded at least 18 times with him through 
email. After the attack, Awlaki posted on his blog praising Hasan's 
actions and calling him his ``student and brother.''
  Times Square Bombing Attempt--Faisal Shahzad, who pleaded guilty to 
the 2010 Times Square car bombing attempt, told interrogators in early 
2010 that he was ``inspired by'' Awlaki and communicated with him.
  Package Bomb Plot--in October 2010, Awlaki had a direct role in 
supervising and directing AQAP's failed attempt to bring down two U.S. 
cargo aircraft by detonating explosives concealed inside two packages 
mailed to Chicago-area synagogues.
  In sum, there is no doubt that Awlaki was chief of external 
operations for Al Qaeda in the Arabian Peninsula, AQAP, and a 
continuing and imminent threat to the United States.
  David Barron's legal analysis of whether the United States can target 
Awlaki is cogent, careful legal analysis and reflects the kind of 
consideration of due process that we should applaud, not punish.
  Barron certainly should not be disqualified because he was the head 
of OLC when that targeting decision--a targeting decision Barron did 
not advocate for--was being contemplated and analyzed by the Obama 
administration.
  Let me conclude by saying this: David Barron is an impressive lawyer 
and scholar with a strong record. Nobody doubts that. Distinguished 
lawyers on both sides of the aisle have endorsed him wholeheartedly.
  The reason for this is simple: His qualifications are first rate, and 
he has under his belt many years of commendable scholarship and service 
to this nation.
  Simply put, he will be an outstanding jurist for the people of the 
First Circuit, and I very much hope my colleagues will support him.

                          ____________________