[Congressional Record Volume 163, Number 96 (Tuesday, June 6, 2017)]
[Senate]
[Pages S3256-S3258]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                         Healthcare Legislation

  Finally, Mr. President, as we redouble our work on the failed 
ObamaCare law and seek to replace it with market-driven solutions so 
people can actually buy insurance they want at a price they can afford, 
I want to briefly remind my colleagues why we are fixing it. I alluded 
to that at the beginning, and I will close with a few more reminders.
  Just last week it was reported that only three insurance companies 
that offered plans on the ObamaCare exchanges will return to the 
Houston

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area in 2018. In 2016, just last year, there was more than twice that 
number. So we see that the pool of available choices for Americans on 
the exchanges has shrunk and continues to shrink in places such as 
Iowa, where it has gone away entirely and where there is no insurance 
company willing to sell insurance on the ObamaCare exchanges. Houston, 
after all, is the Nation's fourth most populous city. So if you see 
that sort of trend there, it can and will happen everywhere.
  ObamaCare continues to fail the American people by not delivering on 
its promises. I have said before that in my previous life I was 
attorney general of the State of Texas. One of the most important jobs 
the attorney general's office does is consumer protection, protecting 
consumers from fraudsters and those who would try to deceive them and 
cheat them out of their hard-earned money. I have said, because I 
believe it to be true, that ObamaCare represents one of the largest 
cases of consumer fraud I have ever seen. When President Obama made the 
extravagant promises he made and yet we have the evidence of its 
failure, it is clear that the American people were misled when it came 
to ObamaCare.
  Many people aren't getting the access to healthcare they thought, and 
those who are using ObamaCare exchanges are finding it increasingly 
expensive. The premiums, as I indicated earlier, have gone up 105 
percent in 39 States with ObamaCare exchanges, since 2013 alone. Then, 
with the deductible, most people find that their out-of-pocket costs 
before the insurance actually kicks in keeps going up and up and up, to 
the extent that many people essentially find themselves without the 
benefit of the insurance they are paying so much for because the 
deductible is so high. We know the insurers on the exchanges just keep 
passing the cost on to the customer, with rate increases up almost 50 
percent in many cases. That is just in the Houston area, which I am 
talking about. Obviously, the 105 percent in 2016 is a nationwide 
number. We know that nationwide, as well, only one in three counties 
has only one insurer on the ObamaCare exchange as of 2017. This is just 
simply unsustainable, and it is irresponsible.
  That is why my colleagues and I are committed to doing something 
about it. Our friend, the Democratic leader, was in here claiming that 
the instability in the market and the fact that premiums are so high 
and insurance companies are leaving are as a result of the instability 
created by political uncertainty now. Well, that is clearly not the 
case. ObamaCare has been with us since 2016, and it has been a terrible 
failure for the people who buy their insurance on the individual 
markets. That is why we are committed to doing everything we can to 
replacing it with patient-centered options that actually work to help 
people get the type of coverage they want at a price they can afford.
  I yield the floor.
  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. WYDEN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Flake). Without objection, it is so 
ordered.
  Mr. WYDEN. Mr. President, today the Senate will vote on the 
nomination of Courtney Elwood to be CIA general counsel. This is an 
important job that got even more important in the past week. As I will 
explain, this position may play a crucial role in determining whether 
history is erased or preserved for generations of Americans to come.
  As Senators know, last week the current chair of the Senate 
Intelligence Committee demanded that several key government agencies 
get rid of their copies of the torture report prepared by Senator 
Feinstein and her colleagues. I am going to take a few minutes to 
describe what this has to do with Courtney Elwood.
  In short, it starts with the CIA's history of torture, which was 
carefully documented and sourced by the Intelligence Committee under 
Senator Feinstein's leadership. This is the issue that is being 
debated--the CIA's history of torture. That is why it is critically 
important that the CIA get back its copy of the report. If Courtney 
Elwood is confirmed, the decision on whether to do so may be up to her. 
Here is why: The CIA Director, Mr. Pompeo, who said at his confirmation 
hearing that he would read the report, has gotten rid of the CIA's 
copy. He did so despite the fact that the current chair of the 
Intelligence Committee had no authority to demand that of him. Mr. 
Pompeo got rid of the report despite a personal promise to read it, and 
he did this even though it may have violated the law. It certainly 
violated a fundamental principle important to the American people that 
in this country, we don't erase history.
  Now, this can be fixed. The CIA can get the report back. It can do 
what Senator Feinstein told the government to do back in 2014, which is 
to distribute this report, read it, and learn from it. Will Director 
Pompeo get the report back on his own? There is no reason to think so. 
But if there is one thing Director Pompeo said again and again in his 
remarks during the confirmation process, it is that he told the Senate 
Intelligence Committee repeatedly that he is going to rely on the 
advice of his lawyers.
  That is exactly where Courtney Elwood comes in. What will her advice 
be to Director Pompeo? What will she advise him about whether to allow 
this attempt to erase history to stand or whether it is going to get 
fixed and the report is going to be brought back? The Senate doesn't 
have any idea this morning. We do know that Ms. Elwood's responses to 
questions on the torture issue were troubling and that we need to look 
at those responses in a whole new light based on what happened last 
week.
  Ms. Elwood said that she read the unclassified executive summary of 
the torture report, but based on her responses to questions, the 500-
page executive summary was not adequate for her. It was not sufficient 
for her to conclude whether the CIA's interrogation techniques violated 
the law. Clearly, she needed to read the classified report. Ms. Elwood, 
in both her written answers and at her hearing, said that she would 
read the classified report. But now, because of what the current chair 
of the Intelligence Committee and the Director of the CIA have done, it 
is not going to be available. It is not going to be available for her 
to read.

  Many Members of this body have spoken out about the torture report 
and the need for its lessons to be learned so this country never again 
engages in the kind of illegal, damaging program that Senator Feinstein 
has documented. But now there is an issue that goes beyond what the 
Senate has thought this was all about. Now there is an individual 
nominee for whom these lessons are critical. This nominee told our 
committee that she had not yet studied whether the CIA's torture 
techniques were legal. She told us she would read the report, and now 
the report is gone. What could be more troubling than that?
  What is at issue here is one of the most disturbing and undemocratic 
events ever to take place in the U.S. Senate. The current chair of the 
Senate Intelligence Committee has told the executive branch to get rid 
of its copies of the report, and at least some of the agencies have 
sent their only copies to the committee. I am going to be clear: The 
current chair does not have the authority to do this.
  First, in December of 2014, the full, final, classified report was 
filed as a Senate report. It is therefore not a committee document. 
Second, no one can retroactively change the status of a historical 
Senate report. The report was finalized, filed, and transmitted to the 
executive branch during the 113th Congress. Only in the 114th Congress 
did the current chair assume the chairmanship and begin to assert 
control over the report.
  Think about the implications here. How can this body allow Members of 
Congress who don't like what a previous Congress has done to 
unilaterally try to erase history? How many other congressional reports 
would be at risk? There are other reports that have not yet been fully 
declassified. Should the Senate worry about whether or not they will be 
protected? Should Americans be concerned that the country's historical 
records are going to be erased before the public ever sees them?
  My view is that this effort by the current chair of the committee is 
an

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assault on one of the fundamental values of our democracy. In this 
country, we don't eradicate the historical record just because we find 
it uncomfortable. There is a reason insecure dictators do it, and there 
is a reason this kind of thing has never happened here. It is because 
we are a confident democracy that has always looked to our own history 
and all our flaws as we seek to build a better Nation.
  We are better than this. I urge my colleagues to defend these 
principles. I urge them to vote against this nomination.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Arkansas.
  Mr. COTTON. Mr. President, I wish to add my support this morning for 
Courtney Elwood as the next general counsel of the CIA--not that she 
really needs it. In her many years of public service and private 
practice, Courtney has earned the esteem of her colleagues across both 
parties and two administrations. David Kris, an Obama appointee, calls 
her ``a first-class lawyer.'' Ben Powell, a Bush appointee, calls her 
``one of the finest lawyers of her generation.'' Caroline Krass, 
another Obama appointee, calls her ``an excellent choice.'' And Wan 
Kim, another Bush appointee, says she is ``careful, brilliant, and 
highly accomplished.''
  In other words, you don't need me to tell you Courtney Elwood is a 
first-rate attorney. In fact, you don't need anyone to tell you that 
because her accomplishments speak for themselves.
  She graduated from Yale Law School in 1994 and went on to clerk for 
both Judge Mike Luttig on the Fourth Circuit and then-Chief Justice 
William Rehnquist at the Supreme Court. After spending some time in 
private practice, she worked for 6 years in the George W. Bush 
administration, rising from associate counsel to the President, to 
deputy counsel to the Vice President, to Deputy Chief of Staff and 
Counselor to the Attorney General.
  We are not talking about a rookie lawyer who is inexperienced in the 
ways of Washington or in the corridors of power. Her commitment to the 
law is unquestioned and unquestionable. She is just the person we need 
for this position.
  The general counsel of the CIA will help Director Pompeo navigate the 
many twists and turns of the thorny legal terrain as our intelligence 
community defends our country against a wide range of threats: 
terrorism, cyber warfare, and good, old-fashioned espionage. We need 
people of the highest caliber serving at our national security 
agencies, and there is broad agreement that Courtney Elwood fits the 
bill.
  I am happy to support her nomination, and I thank her and her family 
for answering the call to serve once again.
  (The remarks of Mr. Cotton pertaining to the introduction of S. 1297 
are printed in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  Mr. VAN HOLLEN. Mr. President, in the critical debate about the 
balance between national security and rights to privacy, the truth must 
be paramount. Time and again, President Trump has misled the American 
public about national security matters, including torture, 
surveillance, and intelligence. Trump has claimed that ``torture 
works'' and that ``we should go much stronger than waterboarding,'' 
despite widespread evidence that enhanced interrogation techniques are 
not effective in acquiring intelligence or gaining cooperation from 
detainees. Without any evidence, President Trump alleged that President 
Obama illegally wiretapped the phones of Trump Towers. Former FBI 
Director James Comey soundly rejected this conspiracy theory, a 
statement that likely played a role in his firing. President Trump 
repeatedly dismissed intelligence that Russia interfered in our 2016 
elections and derided our intelligence community for its assessments. 
His rejection of truth, to stoke fear and resentment in the American 
public, is unethical and dangerous. It is a threat to American 
freedoms.
  In this extraordinary environment, the CIA's leadership must not only 
provide objective and sound intelligence assessments to the President, 
it must faithfully ensure that the President is adhering to the law. 
The role of the General Counsel is particularly critical at this 
moment, when our sitting President has openly denounced or displayed 
alarming ignorance of existing laws on intelligence matters. As the CIA 
General Counsel's guidance is provided entirely in secret, with no 
public transparency, it is imperative that the American public have as 
clear an understanding as possible of the nominee's prior record of 
legal interpretation.
  On this point, Courtney Elwood's history under President George W. 
Bush is troubling. At the Department of Justice, Ms. Elwood was 
involved in discussions regarding the legal justification for the 
``warrantless wiretapping program,'' in which the Bush administration 
collected telephonic and email communications of U.S. persons on U.S. 
soil without a court order. The Bush administration, in memos that are 
now declassified, argued that the President has inherent constitutional 
power to monitor Americans' communications without a warrant in a time 
of war. Given the perennial nature of America's war footing, this 
argument afforded the President a virtually unlimited authority to 
surveil Americans. When asked for her views on this legal justification 
in testimony before the Senate Select Committee on Intelligence, Ms. 
Elwood asserted that the program was ``carefully reasoned'' and that 
the Justice Department was ``thorough in its analysis.''
  Ms. Elwood's record on torture is also cause for concern. While I was 
pleased with Ms. Elwood's testimony that the reinstatement of torture 
would be illegal under existing law, I am concerned with her prior work 
on cases involving the detention of enemy combatants, military 
commissions, and the constitutionality of national security programs 
under President Bush. For these reasons, I cannot support her 
nomination.
  Mr. COTTON. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. CASSIDY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.