[Congressional Record Volume 161, Number 73 (Wednesday, May 13, 2015)]
[Senate]
[Pages S2821-S2830]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 ENSURING TAX EXEMPT ORGANIZATIONS THE RIGHT TO APPEAL ACT--MOTION TO 
                                PROCEED

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration of the motion to proceed to H.R. 1314, which the 
clerk will report.
  The senior assistant legislative clerk read as follows:

       Motion to proceed to Calendar No. 58, H.R. 1314, a bill to 
     amend the Internal Revenue Code of 1986 to provide for a 
     right to an administrative appeal relating to adverse 
     determinations of tax-exempt status of certain organizations.

  The PRESIDING OFFICER. The Senator from Arkansas.


             Our Country's Word on the International Stage

  Mr. COTTON. Mr. President, it has been nearly 2 years since the 
Syrian tyrant Bashar al-Assad attacked his own people with sarin gas, 
crossing President Obama's so-called red line. At the time, President 
Obama grudgingly called for airstrikes against Assad but hesitated at 
the moment of decision. When Secretary of State Kerry opened the door 
to a negotiated solution, Vladimir Putin barged in, allowing Assad the 
pretext of turning over his chemical weapons to avoid U.S. airstrikes. 
The amen chorus proclaimed a strategic master stroke.
  But it wasn't so. Street-smart observers were onto Assad's game. He 
only needed to keep a tiny fraction of his chemical stockpile to retain 
his military utility. Syria thus could open most--but not all--of its 
facilities at no cost to the regime.
  In fact, because most of Syria's chemical agents were old, 
potentially unreliable yet still dangerous, the regime actually 
benefitted by getting the West to pay for the removal of the old 
stockpiles.
  And where are we now? Exactly where a few of my colleagues and I 
warned we would be. News reports just this week indicate that the 
Organisation for the Prohibition of Chemical Weapons has discovered new 
evidence of sarin gas and VX nerve agent--9 months after the 
organization declared Syria had disposed of all of its chemical 
weapons. In the meantime, Assad has simply shifted to chlorine gas for 
chemical attacks against his own people, which is also prohibited by 
the Chemical Weapons Convention, even though Syria signed that 
convention as part of President Obama's deal in 2013.
  I am appalled by these reports that the Syrian regime has obtained 
stocks of chemical weapons, but I cannot say I am surprised. Anyone 
with eyes to see knew the message President Obama had sent. When he 
flinched in 2013 in the face of Assad's brazen and brutal

[[Page S2822]]

use of sarin gas on civilians, it only emboldened Assad to continue 
testing U.S. resolve.
  Of course, the fallout goes far beyond Syria. The failure to enforce 
the U.S. red line against the use of chemical weapons in Syria has 
severely damaged U.S. credibility around the world. I hear this message 
from leaders of countries not just in the region but across the globe. 
The message sounds most loudly with Iran, where the Ayatollahs continue 
their headlong pursuit of nuclear weapons capabilities with impunity. 
Regrettably, then, we are reaping the bitter fruits of President 
Obama's weakness in 2013.
  There are two simple lessons we must draw from this sad sequence of 
events. First, our country's word on the international stage must be 
good and it must be credible. When a President draws a red line and 
fails to back it up, it only emboldens our enemies and makes America 
appear as the weak horse. Remember, Osama bin Laden famously said that 
when given the choice between a weak horse and a strong horse, people 
will, by nature, root for the strong horse. Under Barack Obama, America 
increasingly looks like the weak horse.
  Second, we cannot trust tyrannical regimes to abide by agreements 
unless we force them to do so. This means that any agreement with Iran 
about its nuclear weapons program must contain the most stringent 
conditions, impose the most intrusive verification procedures, and 
ultimately prevent Iran from obtaining a nuclear weapons capability.
  The framework agreement President Obama has reached with Iran meets 
none of those standards. Moreover, the administration's concealment of 
Syria's cheating surely foreshadows how it will look the other way when 
Iran cheats on any final deal.
  Assad's cheating on his chemical weapons agreement today is 
devastating for the people of Syria, but Iran's cheating on a nuclear 
agreement in the future could be catastrophic for the United States and 
the world at large.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. CORNYN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                              PATRIOT Act

  Mr. CORNYN. Mr. President, in February, the Director of the National 
Counterterrorism Center estimated that nearly 20,000 foreign fighters 
had joined ISIS or other related groups in Syria. Among those, some 
3,000 were from Western countries. In other words, many of them either 
had American passports or those that are part of the visa waiver 
program and could travel, really, without anything other than that 
passport in the country. Over 150 were from the United States.
  Just last week, in describing the widespread nature of this growing 
threat, FBI Director James Comey said that the FBI is working on 
hundreds of investigations in the United States, hundreds of 
investigations. In fact, according to Comey, all 56 of the FBI's field 
divisions now have open inquiries regarding suspected cases of 
homegrown terrorism--again, not people coming from Syria or Afghanistan 
or someplace in the Middle East, these are often Americans who have 
become radicalized due to the use of social media or the Internet--much 
as 5 years ago we saw at Fort Hood, TX, a major in the U.S. Army, Nidal 
Hasan, who had been radicalized by a cleric, Anwar al-Awlaki.
  Major Hasan actually pulled out his weapon and killed 13 people, 12 
uniformed military, 1 civilian, and shot roughly 30 more in a terrible 
terrorist attack at Fort Hood, TX.
  So today we are not just worried about a major attack on a 
significant cultural or economic hub, we also have to worry about ISIS-
inspired terrorists all around the country, even as we witnessed in my 
home State of Texas just on May 3.
  When you begin to look at the story--that I will ask to be made part 
of the Record--written by the New York Times on May 11, 2015, it 
explains how this new threat of homegrown terrorism is inspired. I will 
quote a few pieces of it:

       Hours before he drove into a Texas parking lot last week 
     and opened fire with an assault rifle outside a Prophet 
     Muhammad cartoon contest, Elton Simpson, 30, logged onto 
     Twitter.
       ``Follow @_AbuHu55ain,'' Mr. Simpson posted, promoting a 
     Twitter account believed to belong to Junaid Hussain, a young 
     computer expert from Birmingham, England, who moved to Syria 
     two years ago to join the Islamic State and has become one of 
     the extremist group's celebrity hackers.

  Well, there is a question--as the article goes on to say--whether or 
not Mr. Simpson and his colleague, who came, I believe, from Phoenix, 
AZ, and went on to Garland, TX, to carry out this attack--whether they 
were actually recruited ahead of time by ISIL or whether ISIL just 
claimed credit after the fact. But the article goes on to say:

       It was the first time that the terror group had tried to 
     claim credit for an operation carried out in its name on 
     American soil. . . . Yet Mr. Simpson appears to have been 
     part of a network of Islamic State adherents in several 
     countries, including the group's hub in Syria, who have 
     encouraged attacks and highlighted the Texas event as a 
     worthy target.

  Mr. President, I ask unanimous consent to have printed in the Record, 
following my remarks, this New York Times article from May 11, 2015, 
and a Wall Street Journal article from May 12, 2015, by Michael B. 
Mukasey.
  So what FBI Director Comey has expressed concern about recently is 
apparently very real. It is as real as the daily newspaper recounting 
the attack on May 3 in Garland, TX, of all places.
  Terrorists are sending a clear signal to those in the United States 
and other Western countries: If you can't fight us abroad, we are going 
to bring the fight to you in your own country.
  This heightened threat environment has led Pentagon officials to 
raise the security level at U.S. military bases. The last time the 
threat level was raised to this level was the 10th anniversary of the 
September 11 attacks.
  I still remember when the former admiral, Bobby Inman, who served for 
a long time in the Navy and then also in the intelligence community, 
was asked about 9/11. He said: It wasn't so much a failure of 
intelligence, as it was a failure of imagination.
  Nobody imagined that terrorists would hijack a plane and fly it into 
one of our Nation's highest skyscrapers, thus, in the process, killing 
approximately 3,000 people.
  So we need to remember not to have a failure of imagination when it 
comes to the tactics used by terrorists and those who inspire them 
abroad. Remarks like those from Director Comey and the Director of our 
National Counterterrorism Center are certainly troubling ones for us to 
hear, and it counsels caution.
  While the United States has been mostly successful in thwarting 
attacks on our homeland since 9/11, the threats are still very real. In 
fact, the terrorist threat has evolved and become more complex in 
recent years.
  In Texas, we rightly recognize that the role of government should be 
constrained to focus on core functions. At the Federal level, of 
course, this means things such as passing a budget. But surely it also 
means protecting our country and its security and the security of the 
American people.

  That brings me to some business that we are going to have to conduct 
here in the Congress sometime within the next couple of weeks before 
certain provisions of the U.S. PATRIOT Act expire on June 1. I believe 
that if we allow these provisions to expire, our homeland security will 
be at a much greater risk. So I think we need to talk a little bit 
about it and explain not only the threat but what our intelligence 
community and our national security officials are doing, working with 
Congress and the administration, to make sure Americans are safe, and 
the PATRIOT Act is part of it.
  I recognize there are many who perhaps haven't read the PATRIOT Act 
or whose memories have perhaps dimmed since those terrible events on 9/
11 and who think we don't need the PATRIOT Act. But I would argue that 
the PATRIOT Act serves as a tool for intelligence and law enforcement 
officials to protect our Nation from those who are seeking to harm us. 
Three of those useful tools will expire at the end of the month, 
including section 215, which allows the National Security Agency to 
access certain types of data, including phone records.

[[Page S2823]]

  There has been a lot of misunderstanding and, frankly, some of it 
downright deceptive, about what this does, when, in fact, section 215 
is a business records collection provision that happens to be applied 
to collecting phone records but not the content of phone records. This 
is one of the misleading statements made by some folks who think we 
ought to let this provision expire.
  Right now, under current law, which is set to expire June 1, our 
intelligence community can get basically three types of information 
about a phone record: the calling and receiving number, the time of the 
call, and the duration. That is it--no content, no names or addresses. 
You can't even get cell tower identification that would tell one where 
the call is coming from.
  Much has been said about this program, and, as I said, much of it 
misleading or downright false, but I want to focus now on the oversight 
that is built into this program because I think Americans understand we 
need to take steps in a dangerous world to keep the American people 
safe, but they also value their privacy, and justly so. We all do. So 
it is important to remind the American people and our colleagues as we 
take up this important provision of law about what we have already 
built into the law to protect the privacy of American citizens who are 
not engaged in any communication with foreign terrorists or being 
inspired by foreign terrorists to commit acts of terrorism here in the 
homeland.
  Let me talk about the barriers we have created in the law for an 
NSA--National Security Agency--analyst to overcome before seeing any 
real information from this data. First, for the NSA to have access to 
phone records at all--at all--a special court must approve an order 
requiring telephone companies to provide those call records to the 
Agency. That order has been in place since roughly 2006, where the 
Foreign Intelligence Surveillance Court, the specialized court created 
by Congress for this purpose, has issued an order requiring the 
telephone companies to turn over these call records--again, no content, 
no name and address, but merely the sending number, the receiving 
number, and the duration. That is the core information which is 
required.
  It is important to point out that these records include only the most 
basic limited information. They do not include the information I 
suggested earlier--the content, names and addresses, and the like.
  So the National Security Agency is not, as some have assumed wrongly, 
able to retrieve old phone conversations. They do not collect that sort 
of information, nor are they able to simply listen in on any American's 
phone conversations under this authority. That would be a violation of 
the protections Congress has put in place under the provisions of the 
PATRIOT Act.
  Before an analyst at the NSA can even search for or query the 
database, they must go through even more controls, and these are 
important. To be granted the ability to search the database, the 
analyst must demonstrate to the FISA Court--the Foreign Intelligence 
Surveillance Court created by Congress for this purpose--that there is 
a reasonable, articulable suspicion that the phone number is associated 
with terrorism.
  This is similar--not the same but similar--in many respects to the 
protections offered in a criminal case under the Fourth Amendment to 
the Constitution where law enforcement agencies would have to come in 
and establish probable cause that a crime has been committed before a 
search would be allowed. But since this is an investigation into 
foreign-induced terrorist activity, the standard Congress set was a 
reasonable, articulable suspicion that the phone number is associated 
with terrorism. If the court determines that standard has been met, 
they can grant access to the conversation but not under any other 
circumstance.
  If the NSA believes the phone number belongs to someone who intends 
to attack our country, the Agency must go back to court another time to 
be granted other abilities to surveil that individual.
  In addition to these checks and balances between the National 
Security Agency and the courts, all three branches of government have 
oversight over this program. And strong oversight of the intelligence 
community is absolutely essential to safeguarding our freedoms and our 
liberty.
  Because parts of this program are by and large classified, you are 
not going to hear public debates about it. Indeed, that puts defenders 
of the program at some disadvantage to those who attack it--sometimes 
in a misleading or deceptive sort of way--because it is very difficult 
to counter that with factual information when they are talking about a 
classified program, or parts of which are classified. It is important 
that our enemies don't know exactly what we are doing because then they 
can wire around it.
  We live, of course, in a world with many threats, as I said, many of 
them in our backyard. Many of them can be thwarted with good 
intelligence and law enforcement. And I make that distinction on 
purpose--intelligence and law enforcement. Law enforcement--as we 
learned with 9/11, we can't just treat terrorism as a criminal act. It 
is a criminal act, but if we are going to stop it, we need access to 
good intelligence to thwart it before that act actually occurs. It is 
not enough to say to the American people: Well, we will deploy all of 
the tools available to law enforcement to prosecute the person who 
murders innocent people. We need to keep the commitment to protect them 
from that innocent slaughter in the first place, and the only way we do 
that is by using legitimate tools of intelligence, such as this program 
I am discussing.
  Earlier this year, for example, the United States frustrated a 
potential attack by a man from Ohio. He was an ISIS sympathizer and had 
plans to bomb the building we are standing in today, the U.S. Capitol. 
That potential attack was thwarted by the use of good intelligence 
under the limitations and strictures and procedures I described a 
moment ago. Over the past 2 years, the FBI has told us they have 
stopped 50 American citizens from traveling overseas and joining the 
Islamic State and then coming back. So clearly the intelligence 
community has a vital role to play in safeguarding the American people 
in our homeland.
  Some in the intelligence community have said the bulk data collection 
I have described here briefly has led to a safer United States, and it 
is because of programs such as these that we are much better off than 
we were pre-9/11. That is very important because the last thing I would 
think we would want to do here in Congress is to return us to a pre-9/
11 mentality when it comes to the threat of terrorism both abroad and 
here at home and to make it harder for our national security personnel 
to protect the American people.
  I believe the portion of the PATRIOT Act in question provides our 
intelligence community with the tools they need in order to effectively 
protect all Americans.
  I have been briefed on this program. We just had a briefing yesterday 
by the Office of the Director of National Intelligence, by the FBI 
Director, by DOJ personnel, and by the leader of the National Security 
Agency. It was held downstairs in a secure facility because, as I said, 
much of it was classified. Much of it we can't talk about without 
alerting our adversaries to ways to circumvent it. But all responsible 
Members of Congress have taken advantage of the opportunity to learn 
about how this program works as part of our oversight responsibilities.
  I remain convinced that this program, like many others, has helped to 
keep us safe while using appropriate checks and balances to ensure that 
our liberties remain intact. And Congress, by maintaining strong 
oversight of these and other government programs, can have a win-win 
situation that both protects American lives and protects American 
liberties.
  Mr. President, I want to draw my colleagues' attention to an opinion 
piece that appeared today in the Wall Street Journal that was written 
by Michael B. Mukasey, who, of course, was a former U.S. district judge 
and more recently Attorney General of the United States from 2007 to 
2009. General Mukasey writes in this article about the Second Circuit 
opinion that has prompted so much recent discussion about section 215 
of the PATRIOT Act and the bulk metadata collection process I described 
a moment ago. I think he makes some very important points.

[[Page S2824]]

  First of all, he makes the important point that it is a good thing 
Congress has created a special Foreign Intelligence Surveillance Court 
because the Second Circuit Court of Appeals, no matter how good they 
are as judges, simply doesn't have the experience to deal with parsing 
the law on intelligence matters and things such as this 215 provision I 
talked about a moment ago.
  He makes the important point that intelligence by its nature is 
forward-looking and our criminal justice system, which is what most 
courts have experience with, is backward-looking--in other words, 
something bad has already happened and the police and investigators and 
prosecutors are trying to bring somebody to justice for committing a 
criminal act. But our intelligence community is supposed to look 
forward and to help prevent those terrible accidents or incidents from 
occurring in the first place.
  The second point General Mukasey makes in this article is that the 
Second Circuit panel of judges assumes that many Members of Congress 
are simply unaware of the provisions of the PATRIOT Act I mentioned 
earlier--section 215, this metadata collection--which is a terrible and 
glaring mistake on the part of the Second Circuit panel.
  As I pointed out yesterday, just as we have done many times 
previously, Members of the Senate and the Congress generally have 
regular or at least periodic briefings on these intelligence programs 
as part of our oversight responsibilities. For the Second Circuit panel 
to suggest that Congress didn't know what it was talking about when it 
authorized these programs and when it wrote this provision of the law 
is simply erroneous.
  The third point General Mukasey makes is that the judges didn't even 
stop the program in the first place. So it makes one really wonder why 
they handed down their opinion about 3 weeks before the expiration of 
this provision, when Congress is going to have to take up this matter 
anyway, unless they wanted to have some impact on our deliberations 
here.
  What Attorney General Mukasey suggested, I think, is good advice. 
There needs to be an appeal to the Second Circuit Court en banc and 
then to the U.S. Supreme Court to get a final word. We don't need to 
settle on what he calls a ``Rube Goldberg'' procedure that would have 
data stored and searched by the telephone companies, he says, whose 
computers can be penetrated and whose employees have neither the 
security clearance nor the training of the NSA staff.
  Mr. President, I commend this article to my colleagues.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the New York Times, May 11, 2015]

    Clues on Twitter Show Ties Between Texas Gunman and ISIS Network

                        (By Rukmini Callimachi)

       Hours before he drove into a Texas parking lot last week 
     and opened fire with an assault rifle outside a Prophet 
     Muhammad cartoon contest, Elton Simpson, 30, logged onto 
     Twitter.
       ``Follow @_AbuHu55ain,'' Mr. Simpson posted, promoting a 
     Twitter account believed to belong to Junaid Hussain, a young 
     computer expert from Birmingham, England, who moved to Syria 
     two years ago to join the Islamic State and has become one of 
     the extremist group's celebrity hackers.
       This seemingly routine shout-out is an intriguing clue to 
     the question of whether the gunmen, Mr. Simpson and Nadir 
     Soofi, 34, both of Phoenix, were acting in concert with the 
     Islamic State, also known as ISIS or ISIL, in carrying out an 
     attack outside a community center in Garland, Tex. The 
     Islamic State said two days later that the two men, who were 
     killed by officers after opening fire, were ``soldiers of the 
     Caliphate.'' It was the first time that the terror group had 
     tried to claim credit for an operation carried out in its 
     name on American soil.
       As the gunmen were driving toward the Curtis Culwell 
     Center, Mr. Hussain logged onto Twitter himself from half a 
     world away, firing off a series of posts in the hour before 
     the attack began at 7 p.m. on May 3. One message posted to 
     his account about 5:45 p.m. seemed to predict imminent 
     violence: ``The knives have been sharpened, soon we will come 
     to your streets with death and slaughter!''
       After the attack, Mr. Hussain was in the first wave of 
     people who praised the gunmen, before his account was 
     suspended.
       Law enforcement officials have not presented any conclusive 
     evidence that the Islamic State planned or directed the 
     attack. Yet Mr. Simpson appears to have been part of a 
     network of Islamic State adherents in several countries, 
     including the group's hub in Syria, who have encouraged 
     attacks and highlighted the Texas event as a worthy target.
       Counterterrorism officials say the case shows how the 
     Islamic State and its supporters use social media to 
     cheerlead for attacks without engaging in the secret 
     training, plotting and control that has long characterized Al 
     Qaeda. But a close look at Mr. Simpson's Twitter connections 
     shows that he had developed a notable online relationship 
     with some of the Islamic State's best-known promoters on the 
     Internet, and that they actively encouraged such acts of 
     terror.
       Speaking of the Texas case last week, James B. Comey, the 
     director of the Federal Bureau of Investigation, said the 
     distinction between an attack ``inspired'' by a foreign 
     terrorist group and one ``directed'' by the group ``is 
     breaking down.''
       ``It's not a useful framework,'' he added.
       Mr. Simpson was radicalized years before the Islamic State 
     announced in 2014 that it was creating a caliphate, a unified 
     land for Muslims, and drew global attention for territorial 
     gains and brutal violence. He was investigated by the F.B.I. 
     starting in 2006 and was sentenced to probation in 2011 for 
     lying to investigators. But like many young Muslims drawn by 
     the sensational image of the Islamic State, he 
     enthusiastically joined its virtual community of supporters.
       An analysis of Mr. Simpson's Twitter account by the SITE 
     Intelligence Group, which tracks extremist statements, found 
     that Mr. Simpson followed more than 400 other accounts, 
     including ``hardcore I.S. fighters from around the world.'' 
     They included an alleged British fighter for the Islamic 
     State, known as Abu Abdullah Britani, who according to SITE 
     is believed to be Abu Rahin Aziz, a radical British national 
     who skipped bail to join the terror group. They also included 
     an alleged American fighter called Abu Khalid Al-Amriki and 
     numerous female Islamic State jihadists.
       Many of Mr. Simpson's posts announced the new Twitter 
     handles of Islamic State members whose accounts the social 
     media company had suspended, messages commonly called 
     ``shout-outs.''
       ``He was taking part in shout-outs of ISIS accounts that 
     were previously suspended, and this shows a pretty deep 
     involvement in the network online,'' says J. M. Berger, a 
     senior fellow at the Brookings Institution and co-author of a 
     book about the Islamic State. ``He was wired into a 
     legitimate foreign fighters network.''
       Starting last fall, the Islamic State has repeatedly called 
     for attacks in the West by supporters with no direct 
     connection to its core leadership, and there have been at 
     least six attacks in Europe, Canada and Australia by gunmen 
     who appeared to have been inspired by the group. Each 
     attacker left an online trail similar to that of Mr. Simpson, 
     though not all were in contact with Islamic State operatives 
     in Syria.
       A review of Mr. Simpson's Twitter account shows that he 
     interacted not just with sympathizers of the Islamic State, 
     but also with fighters believed to be in Syria and Africa. 
     Some of these fighters later posted on Twitter details of Mr. 
     Simpson's biography not yet in the public sphere, suggesting 
     that he had shared details about his life with them.
       ``The thing that clearly stands out if you peruse the Texas 
     shooter's timeline is his third to last tweet,'' the one 
     promoting Mr. Hussain, said Daveed Gartenstein-Ross, a senior 
     fellow who researches extremism at the Foundation for the 
     Defense of Democracies and who shared a PDF of Mr. Simpson's 
     Twitter history.
       Veryan Khan, who helps run the Terrorism Research and 
     Analysis Consortium, said that Mr. Simpson probably urged 
     others to follow Mr. Hussain in order to draw broader 
     attention to his forthcoming attack. ``He wanted to make sure 
     everyone in those circles knew what he'd done,'' she said. 
     ``It was attention-seeking--that's what it looks like,'' 
     added Ms. Khan, whose organization tracks some 5,000 Islamic 
     State figures and supporters.
       While still living in Birmingham, Mr. Hussain rose to 
     notoriety as a hacker working under the screen name Tr1Ck, 
     and he was believed to be a core member of what was called 
     TeaM p0isoN. The team claimed a string of high profile 
     cyberattacks, hacking into a Scotland Yard conference call on 
     combating hackers and posting Facebook updates to the pages 
     of its chief executive, Mark Zuckerberg, and former President 
     Nicolas Sarkozy of France.
       Mr. Hussain was eventually arrested, and he served a six-
     month prison sentence before traveling to Syria. He has since 
     been linked to a number of Islamic State hacking attacks 
     overseas, though some security officials have doubts about 
     his role.
       Another well-known promoter of the Islamic State who 
     engaged with Mr. Simpson was a jihadist known on Twitter as 
     Mujahid Miski, believed to be Mohamed Abdullahi Hassan, a 
     Somali-American from Minnesota. Though Mr. Hassan lives in 
     Somalia, he has emerged as an influential recruiter for the 
     group.
       On April 23, the account Mujahid Miski shared a link on 
     Twitter to a listing for the Muhammad cartoon contest and 
     goaded his followers to attack it. ``The brothers from the 
     Charlie Hebdo attack did their part. It's time for brothers 
     in the #US to do their part,'' he wrote. Among the nine 
     people who

[[Page S2825]]

     retweeted his call to violence, according to SITE, was Mr. 
     Simpson.
       Three days later, Mr. Simpson reached out to Mujahid Miski 
     on Twitter, asking him to message him privately. Whether they 
     actually communicated, or what they may have said, is not 
     publicly known. Minutes before Mr. Simpson arrived at the 
     cartoon event in Garland and began shooting, he went on 
     Twitter one last time to link the attack to the Islamic 
     State. ``The bro with me and myself have given bay'ah to 
     Amirul Mu'mineem,'' he wrote, using the vocabulary of the 
     Islamic State to say that they had given an oath of 
     allegiance to the Emir of the Believers--the leader of the 
     Islamic State, Abu Bakr al-Baghdadi.
       ``May Allah accept us as mujahedeen,'' he wrote, adding the 
     hashtag ``#TexasAttack.''
       Among those who retweeted this last post was Mr. Hussain, 
     the Islamic State hacker in Syria. ``Allahu Akbar!!!!'' he 
     wrote. ``2 of our brothers just opened fire at the Prophet 
     Muhammad (s.a.w) art exhibition in Texas!'' he added, using 
     the Arabic abbreviation for ``peace be upon him.''
       After Mr. Simpson's death, Mujahid Miski tweeted a series 
     of posts, calling Mr. Simpson ``Mutawakil,'' ``One who has 
     faith,'' a variation on Mr. Simpson's Twitter handle, 
     ``Atawaakul,'' meaning ``To have faith.''
       ``I'm gonna miss Mutawakil,'' Mujahid Miski wrote. ``He was 
     truly a man of wisdom. I'm gonna miss his greeting every 
     morning on twitter.''
                                  ____


              [From the Wall Street Journal, May 12, 2015]

                   Impeding the Fight Against Terror


      The appeals-court ruling on surveillance will have damaging 
                  consequences if Obama doesn't appeal

                        (By Michael B. Mukasey)

       Usually, the only relevant objections to a judicial opinion 
     concern errors of law and fact. Not so with a federal appeals 
     court ruling on May 7 invalidating the National Security 
     Agency's bulk collection of telephone metadata under the USA 
     Patriot Act.
       Not that the ruling by the three-judge panel of the Second 
     Circuit in New York lacks for errors of law and fact. The 
     panel found that when the Patriot Act, passed in the 
     aftermath of 9/11, permitted the government to subpoena 
     business records ``relevant'' to an authorized investigation, 
     the statute couldn't have meant bulk telephone metadata--
     consisting of every calling number, called number, and the 
     date and length of every call.
       That ends up subpoenaing everything, the panel reasoned, 
     and what is ``relevant'' is necessarily a subset of 
     everything. In aid of this argument the panel summons not 
     only the dictionary definition of an investigation, but also 
     the law that relates to a grand-jury subpoena in a criminal 
     case, which limits the government to ``relevant'' 
     information.
       Yet the judicial panel failed to consider the purpose of 
     the statute it was analyzing. The Patriot Act concerns 
     intelligence gathering, which is forward-looking and 
     necessarily requires a body of data from which potentially 
     useful information about events in the planning stage may be 
     gathered. A grand jury investigation, by contrast, is 
     backward-looking, and requires only limited data relating to 
     past events. A base of data from which to gather intelligence 
     is at least arguably ``relevant'' to an authorized 
     intelligence investigation.
       Equally serious an error is the panel's suggestion that 
     many, perhaps most, members of Congress were unaware of the 
     NSA's bulk metadata collection when they repeatedly 
     reauthorized the statute, most recently in 2011. The judges 
     suggest that an explanation of the program was available only 
     in ``secure locations, for a limited time period and under a 
     number of restrictions.'' In addition to being given briefing 
     papers, lawmakers had available live briefings, including 
     from the directors of the FBI and the National Intelligence 
     office.
       In any event, no case until the judicial panel's ruling 
     last week has ever held that a federal tribunal may engage in 
     telepathic hallucination to figure out whether a statute has 
     the force of law.
       The panel adds that because the program was highly 
     classified, Congress didn't have the benefit of public 
     debate. Which is to say, no truly authorized secret 
     intelligence-gathering effort can exist unless we let in on 
     the secret those from and about whom the intelligence is to 
     be gathered. Overlooked in this exertion is the Founders' 
     foresight about the need for secrecy--expressed in the body 
     of the Constitution in the requirement that each legislative 
     house publish a journal of its proceedings ``excepting such 
     Parts as may in their Judgment require Secrecy.''
       But isn't the misbegotten ruling by this trio of federal 
     judges correctable on appeal? Or won't it be made moot 
     because the Patriot Act must be reauthorized by June 1 and 
     Congress will either enact substitute legislation, or let the 
     statute lapse, or simply reauthorize it with full knowledge 
     of how the program works? Here the Second Circuit's opinion 
     is problematic in ways not immediately apparent.
       The judges didn't reverse the lower-court opinion upholding 
     the NSA data-collection program and order the program 
     stopped. Rather, the panel simply vacated that opinion and 
     sent the case back to the lower court to decide whether it is 
     necessary to stop the program now. By rendering its order in 
     a non-final form, the panel made it less likely that the 
     Supreme Court would hear the case even if asked, because the 
     justices generally won't take up issues that arise from non-
     final orders.
       Moreover, the opinion tries to head off the argument that 
     if Congress reauthorizes the Patriot Act in its current form, 
     lawmakers will have endorsed the metadata program. The panel 
     writes: ``If Congress fails to reauthorize Section 215 
     itself, or re-enacts Section 215 without expanding it to 
     authorize the telephone metadata program, there will be no 
     need for prospective relief, since the program will end.'' 
     That is, unless Congress adopts the panel's view of what 
     Congress has done, rather than its own view of what it has 
     done, the program must end.
       Then there is the opinion's timing. The case was argued 
     eight months ago. This opinion, or one like it, easily could 
     have been published in time for orderly review by the Supreme 
     Court so the justices could weigh matters arguably critical 
     to the nation's security. Or the panel could have followed 
     the example of the D.C. Circuit and the Ninth Circuit--which 
     have had cases involving the NSA's surveillance program 
     pending for months--and refrained from issuing an opinion 
     that could have no effect other than to insert the views of 
     judges into the deliberations of the political branches.
       What to do? An administration firmly committed to 
     preserving all surveillance tools in a world that now 
     includes al Qaeda, Islamic State and many other terror 
     groups, would seek a quick a review by the Supreme Court. But 
     President Obama has already stated his willingness to end 
     bulk collection of metadata by the government. Instead, he 
     wants to rely on a Rube Goldberg procedure that would have 
     the data stored and searched by the telephone companies 
     (whose computers can be penetrated and whose employees have 
     neither the security clearance nor the training of NSA 
     staff).
       The government, under Mr. Obama's plan, would be obliged to 
     scurry to court for permission to examine the data, and then 
     to each telephone company in turn, with no requirement that 
     the companies retain data and thus no guarantee that it would 
     even be there. These constitute burdens on national security 
     with no meaningful privacy protection.
       The president's plan would make protecting national 
     security more difficult. We would all have been better off if 
     the Second Circuit panel had avoided needless complication 
     and instead emulated the judicial modesty of their Ninth 
     Circuit and D.C. Circuit colleagues.

  Mr. CORNYN. I yield the floor to the majority leader.
  The PRESIDING OFFICER. The majority leader.


            Unanimous Consent Agreement--Executive Calendar

  Mr. McCONNELL. Mr. President, I ask unanimous consent that at 1 p.m. 
today, the Senate proceed to executive session to consider Executive 
Calendar No. 80, the nomination of Sally Yates to be Deputy Attorney 
General; that there be 1 hour for debate, equally divided in the usual 
form; that upon the use or yielding back of time, the Senate proceed to 
vote without intervening action or debate on the nomination; that 
following disposition of the nomination, the motion to reconsider be 
considered made and laid upon the table; that no further motion be in 
order to the nomination; that any statements related to the nomination 
be printed in the Record; that the President be immediately notified of 
the Senate's action, and the Senate then resume legislative session and 
the motion to proceed to H.R. 1314.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The Senator from Rhode Island.
  Mr. WHITEHOUSE. Mr. President, I ask unanimous consent to speak for 
up to 15 minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                             Climate Change

  Mr. WHITEHOUSE. Mr. President, I am here today for the 99th time to 
remind us that we are sleepwalking our way to a climate catastrophe, 
and that it is time to wake up.
  NOAA, the National Oceanic and Atmospheric Administration of the 
United States, recently announced an ominous milestone. This March, for 
the first time in human history, the monthly average of CO2 
in our atmosphere exceeded 400 parts per million. This chart shows the 
global concentration of carbon dioxide over the last few years as 
measured by NOAA. The level varies with the seasons. The Earth sort of 
inhales and exhales carbon dioxide as the seasons pass. But overall, we 
can see the steady prominent upward march of CO2 levels, 
rising right here to above 400 parts per million for the month of March 
2015.
  Scientists at NOAA's Mauna Loa Observatory in Hawaii first measured 
an atmospheric concentration of CO2 above 400 parts per 
million in 2013--for the very first time. It reached up and it

[[Page S2826]]

touched 400 parts per million for the first time and then receded 
again. Now, 2 years later, as we continue dumping carbon pollution into 
the atmosphere, the average weekly air sample from NOAA's entire global 
network of sampling stations measured an average--a month-long 
average--of 400 parts per million for the entire month of March. That 
is a daunting marker.
  Global carbon concentrations haven't been this high for at least 
800,000 years, much longer--much longer--than humankind has walked the 
Earth. Every year, that concentration increases.
  The fact that increasing levels of carbon in the atmosphere warm the 
planet has been established science for 150 years. Science on this was 
being published in scientific journals when Abraham Lincoln in his top 
hat was walking around Washington. We have pumped more and more carbon 
pollution into the atmosphere, and we have measured corresponding 
changes in global temperatures.
  Now, there is some mischief afoot, people who cherry-pick the data to 
create false impressions--to create false doubt. Well, the honest thing 
to do is to look at all of the data. When we look at all of the data, 
we see long-term warming. We see warming so obvious that scientists 
call the evidence unequivocal--unequivocal. That is about as strong a 
science word as we can have.
  Evidence of the changing climate, the consequences of unchecked 
carbon pollution, abounds: more extreme weather, rising sea levels, and 
warming and acidifying oceans--all as predicted. These changes are 
already starting to hurt people, through more severe heat waves, 
parched fields, flooded towns and homes, altered ecosystems, and 
threatened fisheries. We have certainly seen the fisheries change at 
home in my State of Rhode Island. We are already starting to pay the 
price of our continued and reckless burning of fossil fuels.
  Dr. James Butler, the Director of NOAA's Global Monitoring Division, 
says:

       Elimination of about 80 percent of fossil fuel emissions 
     would essentially stop the rise in carbon dioxide in the 
     atmosphere, but concentrations of carbon dioxide would not 
     start decreasing until even further reductions are made.

  We need to cut our use of fossil fuels, we need to cut energy waste, 
and we need to generate more of our energy from clean and renewable 
sources. We need to do it, and we can do it. We have the technologies 
and the policies available right now. We can choose to level the 
playing field for clean energy, to make polluters pay for the climate 
costs of their pollution, and to move forward to a low-carbon economy--
the one with the green jobs, with the American innovation, with the 
safer climate. But we are not going to get there with business as 
usual.
  That brings me to the fast-track trade bill, which, I am glad to say, 
failed its procedural vote in the Senate this week--a bill that would 
make it easier for the administration to commit the United States to 
new sweeping trade agreements.
  The first agreement waiting to get through is the Trans-Pacific 
Partnership--some call it the TPP--which is being sold as ``a trade 
deal for the 21st century.'' But when it comes to climate change, the 
fast-track bill and the Pacific trade bill aren't 21st century 
solutions. They are business as usual.
  Past trade deals have not been kind to workers in Rhode Island. I 
have been to Rhode Island factories and seen the holes in the floor 
where machinery had been unbolted and shipped to other countries for 
foreign workers to perform the same job for the same customers on the 
same machines. That is what we saw from trade bills. The trade 
advocates always say it is going to be wonderful, but then what do we 
see? Jobs offshored again and a huge trade deficit.
  Past U.S. trade deals have required participating countries to join 
some multilateral environmental agreements, including agreements to 
protect endangered species, whales, and tuna; to help keep the oceans 
free of pollution; and to protect the ozone layer by reducing the use 
of HFCs and other ozone-depleting gases. But I haven't seen much 
enforcement, and everywhere we look things are getting worse. I am not 
impressed.
  When it comes to climate change, the fast-track bill is silent. There 
is no mention of, let alone protection for, commitments the United 
States and other countries might make to cut carbon pollution.
  The United Nations Framework Convention on Climate Change is the main 
international agreement for dealing with climate change. The Senate 
ratified this treaty in 1992, and since then, under various 
administrations, the United States has taken a leading role under the 
framework to reach global accord and, particularly, to work to reach a 
global accord in Paris later this winter. The Paris accord is perhaps 
our last best hope to put the world on a path that avoids severe 
climate disruption, even climate catastrophe.
  That fast-track bill and the Pacific trade bill ought to enable and 
support our trade partners to live up to their climate agreement. Those 
bills ought to protect countries that act to address climate change. In 
particular, they ought to protect them from the threat of trade 
sanctions or from corporate challenges seeking to undermine sovereign 
countries' climate laws.
  These 21st century agreements on trade ought to match our 21st 
century commitments on climate, but they don't. Fast-track is silent on 
the United Nations Framework Convention on Climate Change and on 
climate change more broadly. Fast-track provides no protection for our 
own or any other country's climate commitments. And we have heard 
nothing to suggest the Pacific trade bill will be any better.
  What we do know about the Pacific trade bill is not encouraging. The 
Pacific trade bill, in its agreement under negotiation as we see it 
now, includes the horrible investor-state dispute settlement mechanism, 
called ISDS, a mechanism that allows big multinational corporations and 
their investors to challenge a country's domestic rules and 
regulations--outside of that country's judicial process, outside of any 
traditional judicial process, outside of appeal, outside of traditional 
judicial baseline principles such as precedent.
  Increasingly, these ISDS challenges are being turned against 
countries' environmental and public health standards. Fossil fuel 
companies such as Chevron and ExxonMobil have brought hundreds of 
disputes against almost 100 governments when those governments' 
policies threaten corporate profits. In fact, more than 85 percent of 
the more than $3 billion awarded to corporations and investors in 
disputes have come from challenges against natural resource, energy, 
and environmental policies.
  Last week, on the floor I compared the Big Tobacco playbook--that is 
the one that was found by a Federal court to be a civil racketeering 
enterprise--to the fossil fuel industry's scheme to undermine climate 
action in the United States.
  The comparisons are self-evident. Well, the tobacco industry is in on 
the trade challenge game as well, challenging countries' antismoking 
measures under the guise of protecting free trade.
  If a country wants new health or environmental rules, big 
multinationals can use this ISDS process to thwart them. They don't 
necessarily even have to bring the challenge. Just threatening to seek 
extrajudicial judgments in the millions or even billions of dollars 
from panels stacked with corporate lawyers can be enough to make 
countries stop protecting the health of their citizens. We have seen 
the polluters use these tools already. This is not conjecture. It is 
what is happening.
  Why open U.S. climate regulations to this risk? Why put our 
commitment to climate action at the mercy of these sketchy panels? What 
will keep the fossil fuel industry from threatening smaller countries 
in Paris to discourage them from climate accords? Where are the 
safeguards? Why should we accept trade deals that do not keep safe from 
that kind of threat a country's legitimate efforts to control carbon 
pollution? Why give the polluters this club?
  It is not news to Congress that the fossil fuel industry does not 
play fair; it plays rough. We see that every day. The fossil fuel 
industry has used Citizens United to beat and cajole the Republican 
Party in Congress into becoming the political arm of the fossil fuel

[[Page S2827]]

industry. The party that brought us Theodore Roosevelt, the party that 
brought us the Environmental Protection Agency, the party of my 
predecessor, John Chafee, who is still revered across Rhode Island as 
an environmentalist, has now become the political arm of the fossil 
fuel industry. It is not its high point in history. It is a party that 
lines up behind climate denial.
  If the fossil fuel industry is willing to impose its will that way on 
the Congress, why would we trust them with this ISDS mechanism to 
threaten and bully governments around the rest of the world?
  A 21st-century trade deal ought to acknowledge the 21st-century 
reality of climate change. We have right now the technology and the 
ingenuity to address this problem and to boost our economy into the 
future. For the first time in years, we have international momentum to 
address this threat. But it does not make sense to act on climate 
change in Paris and undermine climate action in our trade deals. We 
need to wake up to that little problem, too.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Gardner). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                       Nomination of Sally Yates

  Mr. SESSIONS. Mr. President, I would like to share some thoughts on 
the nomination of Ms. Sally Yates to be Deputy Attorney General. That 
is the second in command at the U.S. Department of Justice. It is a 
very important position. She has had over the years a good background 
in general for us to consider that she would be able to handle that job 
in an effective way. She understands the system. She has been at the 
Department of Justice for a number of years. I have no concern with her 
personal integrity or work ethic or her desire to do well.
  However, Congress and the executive branch are on a collision course 
here. A lot of our Members choose not to think sufficiently about it or 
consider the gravity of it, but I have to say that Congress needs to 
defend its institutional powers. We have certain powers we can use to 
defend constitutionally the responsibilities we have and to reject 
executive overreach--not many, but we have some real powers we can use.
  Apparently, it is all right for the President to use all his powers 
and more. It is perfectly all right, I suggest, that we in the Senate 
use the powers we clearly and unequivocally and indisputably have.
  I want to tell you how I see the situation with this nomination. I 
asked her directly at her confirmation hearing, as a member of the 
Judiciary committee, could she answer yes or no--did she think that the 
President's Executive amnesty is legal and constitutional. Basically, 
she said yes, she did. She answered that she has been ``serving as the 
Acting Deputy Attorney General of the Department of Justice. And the 
Department of Justice is currently litigating this matter.'' She 
further stated that ``the Department of Justice has filed pleadings 
with its position and I stand by those pleadings,'' which I suppose she 
should.
  Two things about that. Historically, the Attorney General of the 
United States understands that their role is different from a lower 
official, but indeed they have to advise the President on matters of 
constitutional authority and tell the President no when a strong-willed 
President wants to do something that is not correct.
  They are not a judicial officer; they are part of the executive 
branch. They should try to help the President achieve things the 
President wants to achieve as a matter of policy. I do not dispute 
that. But at some point, if the President is seeking to do clearly 
unconstitutional or illegal, they should tell the President so and not 
acquiesce, in my opinion. The honorable thing to do, as has been done 
in the past, is to resign. But if an Attorney General is firm and clear 
and stands in a firm position, then often the President will back down 
and avoid a constitutional crisis and keep our government going in the 
right way.
  The Deputy Attorney General is the Department's second-ranking 
official and functions as its chief operating officer. The 25 
components and 93 U.S. attorneys--I was a U.S. attorney for 12 years, 
15 years at the Department of Justice; I am proud of that service and 
proud of the Department of Justice--they report directly to the Deputy, 
and 13 additional components report to the Deputy through the Associate 
Attorney General. So, on a daily basis, the Deputy Attorney General 
decides a broad range of legal, policy, and operational issues.
  Ms. Yates, I suggest, is a high ranking official who holds a 
position--unlike a U.S. attorney or some section chief--who is involved 
in the policymaking of the Department of Justice. In addition to that, 
the litigation going on in Texas before Judge Andrew Hanen is under her 
direct supervision, and she is monitoring the lawyers who are 
advocating a position that is opposed by a majority of the State 
attorneys general of the United States. A majority of them have filed a 
lawsuit, and they contend that the President's Executive amnesty--an 
even more dramatic assertion of Executive power than his original 
amnesty in 2012--is contrary to the law and Constitution. She is direct 
supervisor over that litigation.
  On April 7 of this year, Judge Andrew Hanen issued a blistering 
opinion in the litigation that is ongoing that the Justice Department 
attorneys had made ``multiple misrepresentations'' to the court ``both 
in writing and orally that no action would be taken pursuant to the 
2014 DHS Directive until February 18, 2015.''
  I would like to read some of the comments from the judge's opinion. 
Judges take this seriously; they are not just saying these things for 
fun.
  Judge Hanen said this:

       Whether by ignorance, omission, purposeful misdirection, or 
     because they were misled by their clients, the attorneys for 
     the Government misrepresented the facts.

  He didn't say that lightly. When U.S. attorneys and other Federal 
prosecutors appear in court, they have an absolute duty to tell the 
truth. It is a responsibility that every judge knows and every 
government attorney knows. When a government attorney goes into court 
and they are asked whether they are ready, they reply: The United 
States is ready, Your Honor. They have a duty to respond consistently 
with the integrity of the United States of America. We all know that.
  In this case, the government lawyers asserted that:

       No applications for the revised DACA would be accepted 
     until the 18th of February, and that no action would be taken 
     on any of those applications until March the 4th.

  Regarding this, Judge Hanen said:

       This representation was made even as the Government was in 
     the process of granting over 100,000 three-year renewals 
     under the revised DACA.

  It goes on:

       In response to this representation, counsel for the States 
     agreed to a schedule more favorable to the Government, and 
     the Court granted the Government's request not only to file a 
     sur-reply, but also to have additional time to do so. The 
     States now argue that they would have sought a temporary 
     restraining order, but for the Government's 
     misrepresentations. A review of the Chronology of Events, 
     attached as an appendix to this Order, certainly lends 
     credence to the States' claims.

  That is a pretty serious allegation. Not only did they misrepresent 
key facts, but they used that misrepresentation to achieve a favorable 
schedule, which often in litigation is important.
  The judge goes on to say:

       The explanation by Defendants' counsel for their conduct 
     after the fact is even more troublesome for the Court. 
     Counsel told the Court during its latest hearing that she was 
     unaware that these 2014 DACA amendments were at issue until 
     she read the Court's February 16, 2015 Order of Temporary 
     Injunction and Memorandum Opinion and Order. Counsel then 
     claimed that the Government took ``prompt'' remedial action. 
     This assertion is belied by the facts. Even if one were to 
     assume that counsel was unaware that the 2014 DACA amendments 
     in their entirety were at issue until reading this Court's 
     February Opinion, the factual scenario still does not suggest 
     candor on the part of the Government.

  Government counsel have an absolute duty of candor to the court. That 
is a serious charge by the Federal judge.
  It goes on:


[[Page S2828]]


       The February Opinion was issued late in the evening on 
     February 16, 2015 (based on the representation that 
     ``nothing'' would happen on DAPA or revised DACA until at 
     least February 18, 2015). As the February Opinion was 
     finalized and filed at night, counsel could not have been 
     expected to review it until the next day; yet, for the next 
     two weeks, the Government did nothing to inform the Court of 
     the 108,081 revised DACA approvals. Instead, less than a week 
     later, on February 23, 2015, the Government filed a Motion to 
     Stay and a Notice of Appeal. Despite having had almost a week 
     to disclose the truth--or correct any omission, 
     misunderstanding, confusion, or misrepresentation--the 
     Government did not act promptly; instead it again did 
     nothing. Surely, an advisory to this Court (or even to the 
     Court of Appeals) could have been included in either document 
     filed during this time period. Yet, counsel for the 
     Government said nothing.

  So the court goes on:

       Mysteriously, what was included in the Government's 
     February 23, 2015 Motion to Stay was a request that this 
     Court rule on the Motion ``by the close of business on 
     Wednesday, February 25. . . . ''--in other words, within two 
     days. Had the Court complied with this request, it would have 
     cut off the States' right to file any kind of reply. If this 
     Court had ruled according to the Government's requested 
     schedule, it would have ruled without the Court or the States 
     knowing that the Government had granted 108,081 applications 
     pursuant to the revised DACA despite its multiple 
     representations to the contrary.

  The attorneys were telling the Court they had not granted any of 
these applications and had stopped it while, in fact, over 108,000 
applications had been issued.
  The court goes on to say:

       While this Court is skeptical that the Government's 
     attorneys could have reasonably believed that the DACA 
     amendments contained in the 2014 DHS Directive were not at 
     issue prior to the injunction hearing on January 15, 2015, 
     this Court finds it even less conceivable that the Government 
     could have thought so after the January 15, 2015 hearing, 
     given the interplay between the Court and counsel at that 
     hearing. Regardless, by their own admission, the Government's 
     lawyers knew about it at least as of February 17, 2015. Yet, 
     they stood silent. Even worse, they urged this Court to rule 
     before disclosing that the Government had already issued 
     108,081 three-year renewals under the 2014 DACA amendments 
     despite their statements to the contrary.

  The judge goes on to say:

       Another week passed after the Motion to Stay was filed and 
     still the Government stood mute . . . Still, the Government's 
     lawyers were silent . . . Finally, after waiting two weeks, 
     and after the States had filed their reply, the Government 
     lawyers filed their Advisory that same night at 6:57 p.m. 
     CST. Thus, even under the most charitable interpretation of 
     these circumstances, and based solely upon what counsel for 
     the Government told the Court, the Government knew its 
     representations had created ``confusion,'' but kept quiet 
     about it for two weeks while simultaneously pressing this 
     Court to rule on the merits of its motion. At the March 19, 
     2015 hearing, counsel for the Government repeatedly stated to 
     the Court that they had acted ``promptly'' to clarify any 
     ``confusion'' they may have caused. But the facts clearly 
     show these statements to be disingenuous. The Government did 
     anything but act ``promptly'' to clarify the Government-
     created ``confusion.''

  The judge goes on to quote the rules of professional conduct:

       The ABA Model Rules of Professional Conduct . . . require a 
     lawyer to act with complete candor in his or her dealings 
     with the Court. Under these rules of conduct, a lawyer must 
     be completely truthful and forthright in making 
     representations to the Court. Fabrications, misstatements, 
     half-truths, artful omissions, and the failure to correct 
     misstatements may be acceptable, albeit lamentable, in other 
     aspects of life; but in the courtroom, when an attorney knows 
     that both the Court and the other side are relying on 
     complete frankness, such conduct is unacceptable.

  I don't think that is a little matter. I am just saying this nominee 
had those lawyers under her supervision at the time this occurred. We 
have had a lot of talk over the years from Democrats and Republicans 
about demanding higher standards of professionalism among government 
prosecutors and lawyers. I think that is a legitimate demand. We have 
had too many examples of failures.
  Sometimes lawyers--I have seen it--for the government have been 
unfairly criticized. I don't think there is any dispute that the 
judge's findings in this case represent an accurate statement of the 
misrepresentations and disingenuousness of these attorneys.
  Has any discipline been undertaken against them? I am not saying Ms. 
Yates knew this. I am just saying that if you are the responsible 
supervisor, shouldn't you take some action to deal with it, and to my 
knowledge, none has been taken, even at some point the Department of 
Justice suggested they did nothing wrong.
  Basically, the Department of Justice has said the court is incorrect 
in its finding, which I don't think can be justified.
  On May 7, 2015, the Department of Justice notified the court of an 
additional misrepresentation regarding approximately 2,000 individuals 
being granted three-year work authorizations subsequent to this opinion 
and in violation of the original court order.
  OK. So you say, well, maybe she is not responsible for that, but I do 
believe the Deputy Attorney General--acting now--is responsible for 
taking action against attorneys who breached the proper standards of 
ethical conduct. But we are drifting too far, in my opinion, into a 
postmodern world, where rules don't seem to make much difference. You 
can just redefine the meaning of words and you can just say--once 
caught in some wrongdoing--well, we didn't mean it or that is not 
correct or the facts are different, when the facts show what the facts 
show. It is an unhealthy trend in this country, I think. It is 
particularly unacceptable in the Department of Justice. That was a 
great department. It has high standards. It is filled with many of the 
best lawyers of the highest integrity anywhere in the world, but sloppy 
work and disingenuousness cannot be acceptable. I believe the 
Department of Justice needs to do more, and the primary responsibility, 
it seems to me, is with the Deputy Attorney General.
  Well, what about the fundamental problem of Congress's power to deal 
with a President who overreaches, a President who makes law rather than 
enforces law? We learned in elementary school that Congress makes law 
and the President enforces law. The Chief Executive cannot make up law. 
He cannot issue decrees and then declare they are the law of the land. 
How fundamental is that?
  Professor Jonathan Turley at George Washington University Law School 
is a constitutional expert and a supporter of President Obama. He 
testified before our Judiciary Committee, and other committees, a 
number of times over the years, mostly for the Democrats, I think--at 
least from the times I remember. This is what Professor Turley has 
warned Congress about.
  I urge colleagues to understand what we are considering here. He 
said:

       I believe the President has exceeded his brief. The 
     president is required to faithfully execute the laws. He's 
     not required to enforce all laws equally or commit the same 
     resources through them. But I believe the President has 
     crossed the constitutional line in some of these areas.

  Here he is referring to the original DACA. He said:

       This goes to the very heart of what is the Madisonian 
     system. If a president can unilaterally change the meaning of 
     laws in substantial ways or refuse to enforce them, it takes 
     offline that very thing that stabilizes our system. I believe 
     the members will loathe the day that they allow this to 
     happen.

  He is testifying before the House of Representatives and talking 
directly to Members of Congress. He said that you will loathe the day 
that you allowed this to happen.
  He also said:

       This will not be our last president. There will be more 
     presidents who will claim the same authority.

  He further said:

       The problem of what the President is doing is that he is 
     not simply posing a danger to the constitutional system; he 
     is becoming the very danger the Constitution was designed to 
     avoid: that is, the concentration of power in a single 
     branch. This Newtonian orbit that the three branches exist in 
     is a delicate one, but it is designed to prevent this type of 
     concentration.

  That is what Professor Turley said to the Members of the House of 
Representatives. He goes on to say:

       We are creating a new system here, something that is not 
     what was designed. We have this rising fourth branch in a 
     system that is tripartite. The center of gravity is shifting, 
     and that makes it unstable. And within that system, you have 
     the rise of an uber presidency. There could be no greater 
     danger for individual liberty, and I really think that the 
     framers would be horrified by that shift because everything 
     they've dedicated themselves to was creating this orbital 
     balance, and we've lost it.

  We need to listen to this. The President is issuing orders that 
nullify law,

[[Page S2829]]

actually creating an entirely new system of immigration that Congress 
rejected. He proposed all of this, and Congress flatly refused to pass 
it. He then declares he has the power to do this system anyway, and he 
is doing it. This judge has finally stopped part of it for the moment.
  Professor Turley is talking about deep constitutional questions and 
what our duty is here. It is not a question of what you believe about 
immigration or how you should believe the laws are to be written or 
enforced. We can debate that. But there should be unanimous agreement 
on both sides of the aisle that the President enforce the laws we 
have--the laws duly passed by Congress--and not create some new law and 
enforce them.
  Mr. Turley goes on to say:

       I believe that [Congress] is facing a critical crossroads 
     in terms of its continued relevance in this process. What 
     this body cannot become is a debating society where it can 
     issue rules and laws that are either complied with or not 
     complied with by the president. . . . [A] president cannot 
     ignore an express statement on policy grounds. . . . Is this 
     [Congress] truly the body that existed when it was formed? 
     Does it have the same gravitational pull and authority that 
     was given to it by the framers?

  That is what Mr. Turley says. Then he looks directly at the Members 
of Congress and says:

       You're the keepers of this authority. You took an oath to 
     uphold it. And the framers assumed that you would have the 
     institutional wherewithal, and, frankly, ambition to defend 
     the turf that is the legislative branch.

  I think that is a legitimate charge to the Members of Congress--House 
and Senate.
  Professor Turley goes on to say:

       The current passivity of Congress represents a crisis for 
     members, crisis of faith for members willing to see a 
     president assume legislative powers in exchange for insular 
     policy gains. The short term insular victories achieved by 
     this president will come at a prohibitive cost if the balance 
     is not corrected. Constitutional authority is easy to lose in 
     the transient shift to politics. It's far more difficult to 
     regain. If a passion for the Constitution does not motivate 
     members of Congress, perhaps a sense of self-preservation 
     will be enough to unify members. President Obama will not be 
     our last president. However, these acquired powers will be 
     passed on to his successors. When that occurs, members may 
     loathe the day that they remain silent as the power of 
     government shifted so radically to the chief executive. The 
     powerful personality that engendered this loyalty will be 
     gone, but the powers will remain. We are now at the 
     Constitutional tipping point of our system. If balance is 
     to be reestablished, it must begin before this president 
     leaves office, and that will likely require every possible 
     means to reassert legislative authority.

  What is our authority? How do we reassert power? I believe it is 
perfectly constitutionally appropriate for us to tell the President of 
the United States: We are not going to confirm your nominee for Deputy 
Attorney General of the United States, who is directly supervising the 
lawsuits, the litigation that is going on that undermines our power and 
undermines the constitutional authority of the people's branch.
  We are not going to confirm them and allow them to continue to go to 
court every day and take a position directly contrary to the authority 
that has been given by the Constitution to the Congress. That is pretty 
simple. So we have that power. We can confirm or not confirm any 
nominee to any position. We absolutely should not abuse that power. We 
shouldn't attack people personally and attack their ethics just because 
we disagree with their policies.
  I think Ms. Yates, as I said, is a responsible person, but she is the 
point person, the supervisor of a litigation that has gone awry in a 
number of ways in Texas and fundamentally is seeking to advance an 
unconstitutional power by the Chief Executive. I don't believe it is a 
little matter. I think it is a big matter. Therefore, I will not vote 
for her confirmation on that basis.
  Some of our Members haven't thought this through yet, but sooner or 
later we are going to have to confront the stark question of how long 
can we remain effectively silent in the face of Presidential overreach.
  Professor Turley, in January of this year testified before the Senate 
Judiciary Committee during the confirmation hearing for the Attorney 
General nominee, and added these words: ``If there is an alternative in 
unilateral executive action, the legislative process becomes purely 
optional and discretionary.''
  In other words, if the Chief Executive can execute an alternative 
power to pass laws and execute policies he wants if they are contrary 
to Congress's will, then the legislative process becomes purely 
optional and discretionary. It has to be mandatory. It can't be that 
our power is optional.
  He goes on to say:

       The real meaning of a president claiming discretion to 
     negate or change Federal law is the discretion to use or 
     ignore the legislative process. No actor in a Madisonian 
     system is given such discretion. All three branches are meant 
     to be locked in a type of constitutional synchronous orbit--
     held stable by their countervailing gravitational pull. If 
     one of those bodies shifts, the stability of the system is 
     lost.

  So the President does not have the power to ignore the legislative 
process, and we are going to regret this day if we remain silent on 
this issue.
  I appreciate the opportunity to share this with my colleagues. I 
don't know if anybody is listening at this point. Certainly the 
American people were horrified by the Executive amnesty carried out by 
the President last year. He announced it before the election but held 
off until afterward. Still, there is no doubt in my mind that many of 
the people who went to the polls in November were voting for a 
rejection of this kind of Executive overreach. It was a message of this 
past election.
  We took our seats in January, a new Congress is here, and Professor 
Turley has said we need to act and we are not acting. Professor Turley 
has said we need to stand up to the Chief Executive, this Chief 
Executive while he is in office now, and if we don't, when we go to 
another election cycle, the powers he has aggrandized to himself will 
be claimed by the next President.
  Truly so. That is a grim warning he has given us. I am ready and I 
think it is time for us to stand up and be clear about this.
  So, regretfully, I feel compelled to carry out one of the powers 
Congress has clearly been given--the power to confirm or reject 
nominations for higher office. I believe we should reject the 
nomination for the Department of Justice Deputy Attorney General who is 
advocating and pursuing a lawsuit that goes against the constitutional 
powers of the Congress, and therefore I will be voting no on the 
nomination.
  I thank the Chair, and I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Sasse). The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. MENENDEZ. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                        Amtrak Train Derailment

  Mr. MENENDEZ. Mr. President, I rise to bring attention to the tragic 
Amtrak derailment that took at least 7 lives and caused over 140 
injuries, including an Associated Press member from New Jersey, Jim 
Gaines of Plainsboro, NJ. Our thoughts and prayers are with the 
families of those who lost their lives. To those of us from New Jersey 
and those who live along the Northeast corridor, they are our 
neighbors, our friends, our relatives. They could be us. It hits 
especially close to home. I know, because I take Amtrak virtually every 
week back to New Jersey.
  There was a period of time last night when I did not know the 
whereabouts of my son Rob, who was scheduled to be on Amtrak back to 
New York. But I later found out that he was on the next train 
immediately behind the one that derailed, and thankfully, he was safe. 
I am grateful for that. But others were not so lucky.
  But luck should not be America's transportation policy. It is 
imperative that the cause of the derailment be fully investigated so 
that we can prevent tragedies such as these in the future. I have 
already been on the phone with Secretary of Transportation Anthony Fox 
and continue to monitor closely the situation.
  I want to recognize the extraordinary work of our first responders. 
Once again, firefighters, police officers, and emergency responders 
showed us what bravery is all about. They ran to the crash site to save 
lives while others were running away. For that, we should all be 
grateful.
  Now, we do not know what caused this accident. But we do know that we

[[Page S2830]]

need to invest in 21st-century systems and equipment and stop relying 
on patchwork upgrades to old, rusted 19th century rail lines.
  I travel Amtrak, as I said, virtually every week. I travel the Acela, 
which is supposed to be our high-speed rail. It is like shake, rattle, 
and roll. As a member of the Senate Foreign Relations Committee, I have 
traveled in other countries in the world, such as Japan. They have a 
bullet train in which you virtually cannot feel anything while you are 
on the train, going at speeds far in excess of what we call high-speed 
rail.
  Now, there are still many questions to which we do not know the 
answers. Was there human failure? Was there a mechanical failure or 
were there infrastructure issues or was it a combination of issues? 
What we do know is that our rail passengers deserve safe and modern 
infrastructure. New Jersey, for example, is at the heart of the 
Northeast corridor. It has long held a competitive advantage with some 
of the Nation's most modern highways, an extensive transit network, and 
some of the most significant freight corridors in the world at the 
confluence of some of the largest and busiest rail lines, interstates, 
and ports.
  In a densely populated State such as New Jersey, the ability to move 
people and goods safely and efficiently is critical to our economy and 
critical to our quality of life. But, unfortunately, in recent years, 
New Jersey and the Nation as a whole have fallen behind. We have 20 
years maximum--maximum--before the Hudson River tunnels are taken out 
of service. Twenty years may sound maybe to some of our young pages 
like a long time, but it is a flash of the eye. Think about what 
happens if we take either or both of those tunnels out of service 
without an alternative, tunnels that are absolutely essential to moving 
people and goods in the region that contributes $3.5 trillion to our 
Nation's economy--20 percent of the entire Nation's gross domestic 
product.
  Nationwide, 65 percent of major roads in America are in poor 
condition. One in four bridges in our Nation needs significant repair. 
There is an $808 billion backlog in highway and bridge investment 
needs. On the transit side, there is an $86 billion backlog of transit 
maintenance needs--maintenance needs, not expanding, just maintaining 
that which we have.
  It will take almost $19 billion a year through the year 2030 to bring 
our transit assets into good repair. These are just a handful of the 
statistics underscoring our Nation's failure to invest in our 
transportation network. But we have to get beyond looking at the 
numbers on a page. We have to talk about what Congress's failure to act 
means to the people we represent, to every community--every community, 
every commuter, every family, everyone who travels every day, and every 
construction worker looking for a job.
  Failure to act means construction workers now face a 10-percent 
unemployment rate, and at a time when our infrastructure is crumbling 
around us, they will not get the work they need. It means a business 
cannot compete in a globalized economy because their goods cannot get 
to market in time. It means a working mother is stuck in traffic and 
cannot get home in time for dinner with her kids. In the very worst 
cases--cases such as the one we saw yesterday on Amtrak--it very well 
means that a loved one is lost in a senseless tragedy.
  In Congress, we too often treat our infrastructure as if it is an 
academic exercise, as if it is numbers on a page that we adjust to 
score political points or balance a budget or make an argument about 
what types of transportation are worthy of our support. But that is not 
the real world. In the real world, the choices we make have an impact 
on people's lives, on their jobs, on their income. They have an impact 
on our Nation's ability to compete. They have an impact on the safety 
of Americans and America's ability to lead globally the economy in the 
world.
  We in Congress are failing to recognize the real-world impacts of the 
choices we make about our transportation infrastructure. We have a 
passenger rail bill that expired in 2013. We have a highway trust fund 
on the brink of insolvency, with no plans--no plans--to fix it 
sustainably. We have a crowded and outdated aviation system that we 
refuse to adequately fund. We have failed to upgrade with presently 
available technologies that can reduce the number of failures. We have 
appropriations bills aiming to cut already-low funding levels of 
Amtrak, in particular, to meet an arbitrary budget cap for the sake of 
political points.
  I cannot understand that. I cannot understand that. We are living off 
the greatest generation's investment in infrastructure in this country. 
We have done nothing to honor that investment, to sustain it or to 
build upon it. Yet nothing we are doing is aimed at fixing the problem. 
Our inaction comes with an extraordinarily high cost. So I can tell 
you, as the senior Democrat on the subcommittee on mass transit, I 
categorically reject the idea that we cannot afford to fix our 
transportation system.
  The truth is, we cannot afford not to fix it. The Amtrak disaster 
last night is a tragic reminder that we have to act. We are reminded of 
the tragic consequences of inaction and the impact of inaction on the 
lives of workers and families, on their lives and their ability to get 
to work and do their jobs with confidence that they will be safe.
  So, as a member of the Finance Committee, and the ranking member of 
the transit subcommittee, I have been advocating that we act as soon as 
possible. We cannot keep pretending the problem is going to resolve 
itself if we just wait long enough. We simply cannot afford to wait. I 
hope that everyone in this Chamber--Democrats, Republicans, and 
Independents alike--will come together, will work together, and make 
real progress in building the future that we can be proud of.
  We can start by putting politics aside to think about the safety of 
the American people, to think about the future, to think about 
America's competitiveness, and to find common ground to do whatever it 
takes to invest in America's railroads, ports, highways, and bridges, 
and to invest in our future.
  So let's not wait until there is another tragic headline or to see 
the consequences of what flows, as people along the entire Northeast 
corridor are trying to figure out alternatives in the midst of a system 
that is now shut down for intercity travel--all the transit lines of 
States and regions within the Northeast corridor that depend upon using 
Amtrak lines to get to different destinations for their residents, to 
get people to one of the great hospitals along the Northeast corridor, 
to get people to their Nation's Capital to advocate with their 
government, to get people and the sales forces of companies to work, to 
get home.
  Let's not wait until we have another tragedy to think about the 
consequences of our transportation system, what it means to the Nation, 
or until the next time when lives are lost. I think we can do much 
better. I have faith that hopefully this will be a crystalizing moment 
for us on this critical issue.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Perdue). The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________