[Congressional Record Volume 160, Number 78 (Thursday, May 22, 2014)]
[Senate]
[Page S3262]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
BARRON NOMINATION
Mr. WHITEHOUSE. There has been considerable discussion on the floor
about the nominee to the First Circuit, David Barron, that has hinged
around his tenure in the Office of Legal Counsel and an opinion he
wrote specifying the outer bounds of Presidential authority in the area
of defending our national security against Americans who have signed up
with organizations that do us harm. I wish briefly to bring to the
attention of this Chamber that it is not the only issue with respect to
David Barron and the Office of Legal Counsel.
The Office of Legal Counsel has indeed had a scandal, and it is
indeed related to David Barron, but it is related to David Barron in
the best possible way, in that he is the one who cleaned up the
scandal. The scandal in question--the Presiding Officer is a former
attorney general of her State and she will understand this very
clearly--the scandal in question related to the shabby opinions that
were written by the Office of Legal Counsel to justify the torture
program that was run by the Bush administration. When I say shabby,
these were awful opinions. They were hidden from most peer scrutiny
because they would not have stood up to peer scrutiny. They made errors
as basic as failing to cite Fifth Circuit Court of Appeals decisions
right on point.
There actually had been an incident in which the Department of
Justice, where the Office of Legal Counsel is located, prosecuted a
Texas sheriff for waterboarding victims in order to get confessions out
of them. He was prosecuted as a criminal. He was convicted. The case
went to the Fifth Circuit on appeal and in the course of their written
decision on appeal, the Fifth Circuit Court of Appeals of the United
States--one row below the U.S. Supreme Court--described the technique
of water torture that was used, the waterboarding, and on a dozen
separate occasions used the word ``torture'' to describe what was being
done.
Look for that case in the Office of Legal Counsel. Look for that case
in the opinion of Office of Legal Counsel about whether torture is
accomplished by waterboarding, whether waterboarding is torture. It is
not there. They didn't even cite the case. It was a case they could
have found in their own files because the Department of Justice was the
organization that had prosecuted this sheriff as a criminal for that
act.
If you wanted to bring it up as a case and try to find a way to
distinguish it, I could accept that. I probably would disagree with
that analysis, but the failure to even cite the case, knowing how
difficult it would be for the torture program to go forward, I think is
a sign of either the worst kind of incompetence or a deliberate fix
being put into the opinion of the Office of Legal Counsel.
Having served as a U.S. attorney as well, I think the Department of
Justice should have the best lawyers in the country, and within the
Department of Justice the OLC prides itself on being the best of the
best. It was a disgraceful departure of that standard when the torture
opinions were allowed to pass. They simply don't meet any reasonable
test of adequacy. So on April 15, 2009, the Department of Justice
withdrew the Office of Legal Counsel's CIA interrogation opinions. The
memorandum for the Attorney General effecting that withdrawal was
signed by none other than David Barron. This was the instance of a man
who absolutely did the right thing. He helped clean up a terrible mess
that had been left at the Department of Justice. We should be proud of
the conduct of David Barron at the Office of Legal Counsel.
I ask unanimous consent that the 1-page memorandum for the Attorney
General signed by David Barron be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Withdrawal of Office of Legal Counsel CIA Interrogation Opinions
Four previous opinions of the Office of Legal Counsel
concerning interrogations by the Central Intelligence Agency
are withdrawn and no longer represent the views of the
Office.
April 15, 2009.
MEMORANDUM FOR THE ATTORNEY GENERAL
Sections 3(a) and 3(b) of Executive Order 13491 (2009) set
forth restrictions on the use of interrogation methods. In
section 3(c) of that Order, the President further directed
that ``unless the Attorney General with appropriate
consultation provides further guidance, officers, employees,
and other agents of the United States Government may not, in
conducting interrogations, rely upon any interpretation of
the law governing interrogation . . . issued by the
Department of Justice between September 11, 2001, and January
20, 2009.'' That direction encompasses, among other things,
four opinions of the Office of Legal Counsel: Memorandum for
John Rizzo, Acting General Counsel of the Central
Intelligence Agency, from Jay S. Bybee, Assistant Attorney
General, Office of Legal Counsel, Re: Interrogation of al
Qaeda Operative (Aug. 1, 2002); Memorandum for John A. Rizzo,
Senior Deputy General Counsel, Central Intelligence Agency,
from Steven G. Bradbury, Principal Deputy Assistant Attorney
General, Office of Legal Counsel, Re: Application of 18
U.S.C. Sec. Sec. 2340-2340A to Certain Techniques That May Be
Used in the Interrogation of a High Value al Qaeda Detainee
(May 10, 2005); Memorandum for John A. Rizzo, Senior Deputy
General Counsel, Central Intelligence Agency, from Steven G.
Bradbury, Principal Deputy Assistant Attorney General, Office
of Legal Counsel, Re: Application of 18 U.S.C. Sec. Sec. 234-
2340A to the Combined Use of Certain Techniques in the
Interrogation of High Value al Qaeda Detainees (May 10,
2005); and Memorandum for John A. Rizzo, Senior Deputy
General Counsel, Central Intelligence Agency, from Steven G.
Bradbury, Principal Deputy Assistant Attorney General, Office
of Legal Counsel, Re: Application of United States
Obligations Under Article 16 of the Convention Against
Torture to Certain Techniques that May be Used in the
Interrogation of High Value al Qaeda Detainees (May 30,
2005).
In connection with the consideration of these opinions for
possible public release, the Office has reviewed them and has
decided to withdraw them. They no longer represent the views
of the Office of Legal Counsel.
David J. Barron,
Acting Assistant Attorney General.
Mr. WHITEHOUSE. I yield the floor and note the absence of a quorum.
The PRESIDING OFFICER (Ms. Heitkamp). The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. RUBIO. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
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