[Congressional Record Volume 160, Number 120 (Tuesday, July 29, 2014)]
[Senate]
[Pages S5070-S5074]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       DETENTION OF DANIEL CHONG

  Mr. GRASSLEY. Mr. President, today I come to the floor to speak about 
the unconscionable way in which the Drug Enforcement Administration 
treated Daniel Chong, a San Diego college student, back in 2012. 
Unfortunately, the American people still do not know all the facts. 
They do not know what lasting changes are being made to make sure 
something like this never happens again. And they do not know what is 
being done to hold the DEA agents involved accountable because if 
people are not held accountable, there are not going to be any changes 
made. Most of the time, for people to be held accountable, heads have 
to roll, and there is no evidence that is the case in this particular 
case. But here is what we do know. It is a story that you might expect 
to hear set in some Third World country but never in the United States 
of America. So here it is.
  Back in April 2012, Daniel Chong, a college student at the University 
of California, San Diego, was arrested by law enforcement conducting a 
sweep for drugs at a college party. He was taken into custody by the 
DEA and transported to the local DEA field office. He was questioned by 
the agents who had arrested him, and the agents apparently concluded 
that there was no basis to charge him with a crime. The young man may 
well have simply been in the wrong place at the wrong time.
  The agents told him he was going to be released. But Daniel Chong was 
not

[[Page S5071]]

released. Instead, he was taken back to a holding cell in handcuffs, 
and he was left there for dead for 5 days--5 days without food, 5 days 
without water, 5 days without sunlight, 5 days without any basic 
necessities of life, in a holding cell not much larger than a bathroom 
stall. He cried out for help. He kicked and banged on the door of the 
cell but to no avail. He became so desperate and dehydrated that he 
even drank his own urine in an effort to survive. Incredibly, the one 
thing Daniel Chong found in his cell that he tried to live on turned 
out to be some methamphetamine. That is right, he found an illegal drug 
in the DEA's own holding cell. Apparently, it was never searched before 
Mr. Chong was tossed inside. It got so bad that this young man tried to 
kill himself. He tried to carve the words ``sorry Mom'' into his own 
skin. He intended it to be the last message for anyone to pass on who 
might one day discover his lifeless body in that DEA holding cell.

  After 5 days someone finally responded to Daniel Chong's call for 
help. He was taken immediately to the hospital. He was found to be 
suffering from extreme dehydration, hypothermia, kidney failure, and 
cuts and bruises on his wrists. It took 4 days to nurse him back to 
health.
  This all occurred in April 2012. Soon after I learned of it, I sent a 
letter to the DEA Administrator demanding to know what could have led 
to such a calamity. I asked how, in a modern age of computers and 
surveillance cameras, it was possible that an innocent person could be 
left for dead in a DEA holding cell. I asked about the DEA policies and 
procedures in place to help prevent this from ever happening again. And 
I asked whether those responsible for what happened to Mr. Chong were 
going to be held accountable.
  It took the DEA more than a year to respond to my questions--more 
than a year. In June 2013 the DEA trotted out the familiar response we 
so often hear from bureaucrats when they do not want to tell you what 
really happened. They said at that time the DEA could not comment on 
many aspects of the matter because the Department of Justice's own 
inspector general was conducting a review. The DEA assured me that, in 
their words, an ``interim'' policy had been adopted to make sure no 
other innocent people would be abandoned in a prison cell and left for 
dead. But the American people would have to wait for a permanent policy 
change and a full accounting until after the inspector general finished 
its investigation.
  Just a month later, in July 2013, the DEA announced it would be 
handing over $4.1 million to Daniel Chong to settle his lawsuit. Mr. 
President, $4.1 million of taxpayer money--almost $1 million for each 
day he spent forgotten and also ignored in that dark and drug-infested 
DEA holding cell.
  Now, up to date, finally, just this month and more than 2 years after 
this debacle, the Department of Justice's inspector general finally 
issued its report of the investigation. We still do not know the full 
truth about what happened to Daniel Chong. In many ways the inspector 
general's report raises more questions than it answers, and what the 
report does tell us is quite disturbing.
  According to the report, Daniel Chong was not just forgotten by the 
agents who arrested him; he was ignored by other DEA employees who knew 
he was there but assumed he was somebody else's problem.
  And the report suggests the DEA may have tried to cover up the whole 
event.
  According to the report, there were three DEA agents and a supervisor 
directly responsible for making sure this young man was not abandoned 
in that holding cell. So it is obvious these four agents failed 
miserably in their responsibilities. But it gets even worse. According 
to the report, at least four other agents passed in and out of the 
holding cell area during the 5 days Daniel Chong was imprisoned. These 
four agents admitted they had either seen or heard Chong in his cell, 
but they simply assumed someone else was going to take care of him--in 
other words, he was somebody else's problem.
  Daniel Chong was arrested on a Saturday. One of those agents saw him 
in the cell on Sunday, and one saw him there on Monday, and another two 
agents either saw him or heard him on Wednesday, but nothing compelled 
these law enforcement officers to address his plight because they did 
not believe anything was amiss.
  I hope to all my colleagues that what I just told you is very 
difficult to believe.
  In addition, Daniel Chong's holding cell was near a workspace area 
used by dozens of DEA personnel. According to the report, anyone in 
that workspace could have clearly heard banging and yelling from inside 
the cell.
  But not a single one of the 25 DEA employees interviewed by the 
inspector general who worked this area could recall hearing any unusual 
noises during the time Daniel Chong was imprisoned there. So this is 
very difficult to believe. It defies all common sense. It contradicts 
what Daniel Chong says he did by crying out for help and banging on his 
holding cell door. It contradicts what his injuries tell us he did. It 
contradicts what anyone left in a holding cell without the basic 
necessities of life for days would do.
  Why did no one respond to Daniel Chong's cries for help? The report 
does not even attempt to answer that question.
  These eight DEA agents were in some way responsible for this young 
man's wrongful captivity. The report does not say what happened to 
these agents. This is where you get into accountability. Who is 
responsible? Are heads going to roll so this behavior changes? Are 
these agents still working for the DEA? Have they been disciplined? Are 
they still arresting other people, tossing them behind bars and leaving 
them for dead?
  The problem does not stop here. According to the report, the DEA may 
have tried to cover up this entire event. The inspector general learned 
about what happened to Daniel Chong from an anonymous whistleblower who 
called one of its field offices.
  This is another example of the value of whistleblowers, heroes who 
stand up for what is right, sometimes at great personal risk. According 
to the IG's report, the whistleblower indicated that the DEA ``was 
trying to contain this matter locally.'' That is another way of saying, 
essentially, that a coverup could be in the works.
  Incredibly, as it turns out the DEA office in San Diego assigned the 
very agents who were responsible for Daniel Chong's captivity to 
process the holding cell area where Chong was held for days. That is 
right. The agents who left Chong behind bars for 5 days were assigned 
to investigate their own egregious mistakes--kind of like the fox 
guarding the chicken house.
  DEA management also decided that it was going to conduct its own 
internal management review of the incident; that is, it would conduct 
it is own interviews and investigations before DEA notified anybody 
else. DEA management justified this decision by telling the inspector 
general that it assumed the conduct ``which resulted in Chong's 
detention did not amount to misconduct and was not criminal.'' But, of 
course, as the inspector general found, it should have been readily 
apparent to DEA management that this was not true. Of course, DEA 
management may have calculated that undertaking its own investigation 
could head off an independent outside review; indeed, perhaps the 
investigation could even be contained ``locally.'' How many other DEA 
misdeeds have been similarly contained?
  So it is obvious what happened. It is outrageous. How it was handled 
is outrageous. We need to know more about why the inspector general was 
not called in immediately--that is, even as DEA policy requires--rather 
than having people who conducted the wrongdoing investigating, in a 
sense, themselves. We need to know if indeed this was a deliberate 
attempt to sweep this dereliction of duty under the rug.
  The DEA is entrusted with a lot of responsibility and authority. We 
ask the DEA to enforce our drug laws. We ask the DEA to protect our 
communities. The DEA has a very tough job. The Obama administration is 
not making that job any easier because this administration is 
undermining the DEA by turning a blind eye to illegal marijuana 
trafficking. It is trying to release convicted drug dealers from our 
prisons. It is trying to reduce the criminal penalties and minimum 
mandatory sentences for drug dealers who are still on the streets 
peddling death in our communities. So I understand

[[Page S5072]]

these are very challenging times for the DEA.
  When the DEA or any law enforcement agency neglects its 
responsibilities and then possibly even covers up wrongdoing, then 
those who are responsible must be held accountable. So I have to ask, 
if the employees at DEA are not held accountable, what needs to happen 
in order for action to be taken? Do we need to wait until someone dies?
  The DEA's conduct in this case is inexcusable. After 2 years and more 
than $4 million of taxpayer money, the DEA owes the American people 
more answers. The American people deserve answers to the questions I 
posed in my letter to the DEA back in May of 2012, so, not getting a 
proper answer, I will be writing to the DEA again this week to pose 
additional questions, including about the possibility of a coverup.
  Most importantly, the American people deserve to know that those 
responsible for the detention and the mistreatment of Daniel Chong will 
be held accountable for this horrendous event.


                        Constitutional Amendment

  I come to the floor also to discuss a constitutional amendment the 
Judiciary Committee has just reported to the Senate. The amendment 
would amend the Bill of Rights for the first time. Let me repeat that. 
The amendment would amend the Bill of Rights for the first time. I 
think that is a slippery slope. It would amend one of the most 
important of those rights--the right of free speech.
  The first amendment provides that Congress shall make no laws 
abridging freedom of speech. The proposed amendment would give Congress 
and the States the power to abridge free speech. It would allow them to 
impose reasonable limits--whatever the word ``reasonable'' might mean 
at a particular time--on contributions and expenditures. By so doing, 
that has to be putting limits on speech, particularly speech that is 
very valuable in this country--political speech; in other words, trying 
to influence the direction of our country through elections. It would 
allow speech by corporations that would influence the elections to be 
banned altogether.
  This amendment is as dangerous as anything Congress could pass. Were 
it to be adopted--I believe it will not be adopted--the damage done 
could be reversed only if two-thirds of both Houses of Congress voted 
to repeal it through a new constitutional amendment. Then, of course, 
three-fourths of the States ratify that new amendment.
  I would like to start with some basic first principles. The 
Declaration of Independence states that everyone is endowed by their 
Creator with unalienable rights that governments are created to 
protect. Those preexisting rights include the right to liberty.
  The Constitution was adopted to secure the blessings of liberty to 
Americans. Americans rejected the view that the structural limits on 
government power contained in the original Constitution would 
adequately protect the liberties they had fought the Revolution to 
preserve. So when the people came to the conclusion that the original 
Constitution would not protect their liberties, the people living in 
the States at that time insisted on the adoption of this very important 
Bill of Rights.

  The Bill of Rights protects individual rights regardless of whether 
the government or the majority approve of their use. The first 
amendment in the Bill of Rights protects freedom of speech. That 
freedom is basic to self-government. Other parts of the Constitution 
foster equality or justice or representative government, but it is the 
Bill of Rights--that Bill of Rights is only about individual freedom. 
Free speech creates a marketplace of ideas in which citizens can learn, 
debate, persuade fellow citizens on the issues of the day. At its core 
it enables the citizenry to be educated, to cast votes, to elect our 
leaders.
  Today freedom of speech is threatened as it has not been in many 
decades. Too many people will not listen and debate and persuade. 
Instead, they want to punish, intimidate, and silence those with whom 
they might disagree.
  A corporate executive who opposes same-sex marriage--the same 
position that President Obama held at the very time--is to be fired. 
Universities that are supposed to foster academic freedom cancel 
graduation speeches by speakers some students find offensive. 
Government officials order other government officials not to deviate 
from the party line concerning proposed legislation.
  This resolution filed by the Judiciary Committee, S.J. Res. 19, is 
cut from the same cloth. It would amend the Constitution for the first 
time to diminish an important right of Americans; that is, a right 
contained in the Bill of Rights. In fact, it would cut back on the most 
important of these rights--core free speech about who should be elected 
to govern us.
  The proposed constitutional amendment would enable government to 
limit funds contributed to candidates and funds spent influencing the 
election. That would give the government the ability to limit speech. 
The amendment would allow the government to set the limit at low 
levels. There could be little in the way of contributions or election 
spending. There could be restrictions on public debate on who should be 
elected. Incumbents would find that outcome--well, you guessed it--to 
be very successful because it protects incumbents. They would know that 
no challengers could run an effective campaign against them.
  What precedent would this amendment create? Suppose Congress passed 
limits on what people could spend on abortions or what doctors or 
hospitals could spend to perform them? What if Congress limited the 
amount of money people could spend on guns or limited how much people 
could spend of their own money on health care?
  Under this amendment Congress could do what the Citizens United 
decision rightfully said it could not--make it a criminal offense for 
the Sierra Club to run an ad urging the public to defeat a Congressman 
who favors logging in the national forest or for the National Rifle 
Association to publish a book seeking public support for a challenger 
to a Senator who favors a handgun ban or for the ACLU to post on its 
Web site a plea for voters to support a Presidential candidate because 
of his stance on free speech. That should, for everybody, be a 
frightening prospect.

  Under this amendment, Congress and the States could limit campaign 
contributions and expenditures without even complying with the existing 
constitutional provisions. Congress could pass a law limiting 
expenditures by Democrats, but not by Republicans--by opponents of 
ObamaCare, but not by its supporters.
  What does the amendment mean when it says that Congress can limit 
funds spent to influence elections? If an elected official says he or 
she plans to run again, long before any election, Congress, under this 
amendment, could criminalize criticism of that official as spending to 
influence the elections.
  A Senator on the Senate floor appearing on C-SPAN, free of charge 
could, with immunity, defame a private citizen. The Member could say 
that the citizen was buying the elections. If the citizen spent what 
Congress has said was too much money to rebut the charge, he could go 
to jail. We would be back to the days when criticism of elected 
officials was a criminal offense during the Alien and Sedition Acts. 
Yet its supporters say that this amendment is necessary to preserve 
democracy.
  The only existing right that the amendment says it will not harm is 
freedom of the press. So Congress and the States could limit the speech 
of anyone except corporations that control the media. That would 
produce an Orwellian world in which every speaker is equal but some 
speakers are more equal than others.
  Freedom in the press has never been understood to give the media 
special constitutional rights denied to others. Even though the 
amendment by its terms would not affect freedom of the press, I was 
heartened to read that the largest newspaper in my State, the Des 
Moines Register, editorialized against this amendment amending the Bill 
of Rights. They cited testimony from our hearing, and they recognize 
the threat that the proposed amendment poses to freedom.
  But in light of recent Supreme Court decisions, an amendment soon may 
not be needed at all. Four Justices right now would allow core 
political speech to be restricted. Were a fifth Justice with this view 
to be appointed, there would be no need to amend the Constitution to 
cut back on the freedom.

[[Page S5073]]

  Justice Breyer's dissent for these four Justices in the McCutcheon 
decision does not view freedom of speech as an end in itself the same 
way that our Founding Fathers did. He thinks free political speech is 
about advancing ``the public's interest in preserving a democratic 
order in which collective speech matters.''
  To be sure, individual rights often advance socially desired goals, 
but our constitutional rights do not depend on whether unelected judges 
believe they advance democracy as they conceive it. Our constitutional 
rights are individual, not collective, as Justice Breyer says. Never in 
225 years has any Supreme Court opinion described our rights as 
collective. Our rights come from God and not from the government or the 
public. At least that is what the writers of the Declaration of 
Independence said.
  Consider the history of the past 100 years. Freedom has flourished 
where rights belong to individuals that governments were bound to 
respect. Where rights are collective and existed only at the whim of a 
government that determines when they serve socially desirable purposes, 
the results have been literally horrific: no freedom, no democracy.
  We should not move even 1 inch in that direction that the liberal 
Justices did and that simultaneously this amendment would take us. The 
stakes could not be higher for all Americans who value their rights and 
freedoms. Speech concerning who the people's elected representative 
should be, speech setting the agenda for public discourse, speech 
designed to open and change the minds of our fellow citizens, speech 
criticizing politicians, and speech challenging government and its 
policies are all vital rights. This amendment puts all of them in 
jeopardy upon the penalty of imprisonment. It would make America no 
longer America.
  Contrary to the arguments of its supporters, the amendment would not 
advance self-government against corruption and the drowning out of 
voices of ordinary citizens. No, just the opposite. It would harm the 
rights of ordinary citizens--individually, as well as in free 
associations--to advance their political views and to elect candidates 
who support their views.
  By limiting campaign speech, it would limit the information that 
voters receive in deciding how to vote. It would limit the amount that 
people can spend on advancing what they consider to be the best 
political ideas. Its restrictions on speech apply to individuals. 
Politicians could apply the same rules to individuals who govern 
corporations. Perhaps individuals cannot be totally prohibited from 
speaking, but the word ``reasonable'' is in the amendment but that word 
limits can mean anything. Incumbents likely would set a low limit on 
how much an individual can spend to criticize them; that is, incumbents 
protecting their office. Then the individual would have to risk 
criminal prosecution in deciding whether to speak, hoping that a court 
would later find that the limit he or she exceeded was unreasonable.
  This would create not a chilling effect on speech, but, in fact, a 
very freezing effect.
  This does not further democratic self-government. The amendment would 
apply to some campaign speech that cannot give rise to corruption.
  For instance, under current law, an individual could spend any amount 
of his or her own money to run for office. An individual could not 
corrupt himself with his own money and could not be bought by others if 
he or she did not rely on outside money, but the amendment would allow 
Congress and the States to strictly limit what even an individual could 
contribute to or spend on his or her own campaign. That would make 
beating the incumbent, who would benefit from the new powers to 
restrict speech, much more difficult.
  In practice, individuals seeking to elect candidates in the 
democratic process must exercise their First Amendment freedom of 
association to work together with others. This amendment could prohibit 
that altogether.
  It would permit Congress and the States to prohibit ``corporations or 
artificial entities . . . from spending money to influence elections.'' 
Now, that even means labor unions. That means nonprofit corporations 
such as the NAACP Legal Defense and Educational Fund. That means 
political parties.
  The amendment will allow Congress to prohibit political parties from 
spending money to influence elections. If they can't spend money on 
elections, then they would be rendered as a mere social club.
  The prohibition on political spending by for-profit corporations also 
does not advance democracy.
  Were this amendment to take effect, a company that wanted to 
advertise beer or deodorant would be given more constitutional 
protection than a corporation of any kind that wanted to influence an 
election.
  The philosophy of the amendment is very elitist. It says the ordinary 
citizen cannot be trusted to listen to political arguments and evaluate 
which ones are persuasive.
  Instead, incumbent politicians interested in securing their own 
reelections are trusted to be high-minded. Surely, they would not use 
this new power to develop rules that could silence not only their 
actual opposing candidates, but associations of ordinary citizens who 
have the nerve to want to vote them out of office.
  As First Amendment luminary Floyd Abrams told our committee: 
``[P]ermitting unlimited expenditures from virtually all parties leads 
to more speech from more candidates for longer time periods, and 
ultimately more competitive elections.''
  Isn't that the goal that we should seek through the political 
process? Having parties led to more speech from more candidates for 
longer periods of time and ultimately more competitive elections.
  Incumbents are unlikely to use this new power to welcome that 
competition.
  In fact, the committee report indicates that State and Federal 
legislators are not the only people who would have the ability to limit 
campaign speech under this amendment.
  It says that the States and the Federal Government can promulgate 
regulations to enforce the amendment. So you have unelected State and 
Federal bureaucrats, who do not answer to anyone, being empowered to 
regulate what is now the freedom of speech of individuals and entities 
that for 230 years has been protected by the Bill of Rights. That all 
makes a mockery of the idea that this proposed amendment would advance 
democracy and that argument is used by its proponents.
  Another argument for the amendment--some voices should not drown out 
others--also runs counter to free speech. It also is elitist. It 
assumes that voters will be manipulated into voting against their 
interests because large sums will produce so much speech as to drown 
out others and blind them to the voters' true interests.
  Tell that to the voters in Virginia's Seventh Congressional District. 
That incumbent Congressman outspent his opponent 26 to 1. Newspaper 
reports state that large sums were spent on independent expenditures on 
the incumbent's behalf, many by corporations. No independent 
expenditures were made for their opponent, but yet his opponent won.
  That doesn't seem to be drowning out people making their own 
decisions in the ballot box, and it is not some undue influence that 
proponents of this amendment want you to believe that this 
constitutional amendment can do away with undue influence. Just think, 
26 to 1, trying to convince people to vote for an incumbent 
Congressman, and he loses.
  Let me say this. The exact amount of money that the winner of that 
primary spent was just over $200,000 to win 55 percent of that vote.
  Since a limit that allowed a challenger to win would presumably be 
reasonable under the amendment, Congress or the States could limit 
spending on House primaries to as little as $200,000, all by the 
candidate with no obviously unnecessary outside spending allowed.
  The second set of unpersuasive arguments concerns the Supreme Court 
decision Citizens United. That case has been mischaracterized as 
activist.
  Again, I wish to say what Mr. Abrams testified before the committee. 
He said that case continues a view of free speech rights by unions and 
corporations that was expressed by President Truman and by liberal 
Justices in the 1950s.

[[Page S5074]]

  What the Citizens United overruled was the departure from precedent. 
And Citizens United did not give rise to unfettered campaign spending.
  The Supreme Court case in 1976, in Buckley v. Valeo, ruled that 
independent expenditures could not be limited. That decision was not 
the work of a supposed conservative judicial activist. Wealthy 
individuals have been able to spend unlimited amounts since then. And 
corporations and others have been able to make unlimited donations to 
501(c)(4) corporations since then as well.
  As Mr. Abrams wrote to the Judiciary Committee in questions for the 
record:

       What Citizens United did do, however, is permit 
     corporations to contribute to PACs that are required to 
     disclose all donors and engage only in independent 
     expenditures.
       If anything, Citizens United is a pro-disclosure ruling 
     which brought corporate money further into the light.

  And it is this amendment, not Citizens United, that fails to respect 
precedent. It does not simply overturn one case. As Mr. Abrams 
responded, it overturns 12 cases, some of which date back almost 40 
years. As the amendment has been redrafted, it may be 11\1/2\ now, 
depending upon what the word ``reasonable'' means.
  Justice Stevens, whom the committee Democrats relied on at length in 
support of the amendment, voted with the majority in three of the cases 
the amendment would overturn. Some members of the committee may not 
like the long-established broad protections for free speech that the 
Supreme Court has reaffirmed, but that does not mean there are five 
activists on the Supreme Court. The Court ruled unanimously in more 
cases this year than it has in 60 or 75 years, depending on whose 
figures you use. Its unanimity was frequently demonstrated by rejecting 
arguments of the Obama administration.
  I have made clear that this amendment abridges fundamental freedoms 
that are the birthright of Americans. The arguments made to support it 
are unconvincing. The amendment will weaken, not strengthen, democracy. 
It will not reduce corruption, but will open the door for elected 
officials to bend democracy's rules to benefit themselves.
  The fact that the committee reported this amendment is a very great 
testimony to the wisdom of our Founding Fathers in insisting on and 
adopting the Bill of Rights in the first place. As Justice Jackson 
famously wrote:

       The very purpose of a Bill of Rights was to withdraw 
     certain subjects from the vicissitudes of political 
     controversy, to place them beyond the reach of majorities and 
     officials and to establish them as legal principles to be 
     applied by the courts.
       One's right to life, liberty, and property, to free speech, 
     a free press, freedom of worship and assembly, and other 
     fundamental rights may not be submitted to vote; they depend 
     on the outcome of no elections.

  We must preserve our Bill of Rights, including our rights to free 
speech. We must not allow officials to diminish and ration any one of 
the Bill of Rights, but especially the first one, which is so 
important. We must not let the proposal become the supreme law of the 
land.
  I yield the floor.

                          ____________________