[Congressional Record Volume 163, Number 181 (Tuesday, November 7, 2017)]
[Senate]
[Pages S7038-S7041]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Our Country's Middle East Foreign Policy
Mr. McCAIN. Mr. President, in recent months, the United States and
coalition forces have achieved major gains against Iraq and Syria.
Building upon the retaking of Mosul in July, U.S. coalition partners
have liberated ISIS's former capital of Raqqa in Syria, the pocket of
Hawija in northern Iraq, and, just days ago, the border town of al-Qaim
in western Iraq. The so-called caliphate that terrorists claimed would
overrun the Middle East is now a shadow of its former self--a shrinking
swathe on a map once defined by an open reign of terror.
Unfortunately, however, our challenges in the region remain daunting
despite these hard-fought tactical victories. Our relentless focus on
destroying ISIS, which is, of course, essential, has obscured a
troubling reality: The United States lacks a clear comprehensive
strategy that addresses the Middle East in all of its complexity.
This is part of the unfortunate legacy the Obama administration left
for its successor, but nearly 1 year into the Trump administration, we
lack clarity on essential questions about our Nation's role, and we are
left to observe as bystanders the intensifying symptoms of a collapsing
regional order. While in some cases we are bystanders who take action,
we do so with unclear and often unstated objectives.
The United States has committed to the sale of over $100 billion of
weapons to Saudi Arabia. We have announced an outline of strategy to
counter Iran while providing only minimal detail. We remain
conspicuously silent on the future of our role in Iraq and Syria beyond
eliminating ISIS, as the Assad regime and its partners consolidate
power.
Our power and influence is diminishing in the Middle East as a result
of our lack of direction, and the vacuum has been filled by forces
working contrary to American interests. Consider the events that have
swept the region in recent months.
In Iraq, Iranian forces are working to sow discord as we recently saw
in Kirkuk, where the presence of the Quds Force commander, Qassem
Soleimani, exacerbated tensions among the Kurds and the government in
Baghdad. Iranian-backed militias continue to gain power and aim to turn
next year's election into a setback that drives American influence out
of Iraq. Meanwhile, the scourge of ISIS remains despite recent military
successes. The terrorist attack last week in Manhattan shows its
persistent appeal. Its rise in the wake of U.S. withdrawal years ago
demonstrates the danger of leaving before winning the peace.
Across the border in Syria, the Assad regime, backed by Russia, Iran,
Hezbollah, and an array of militias, has retaken most of the country,
including many eastern areas that are strategically important. The
consequences of the resulting humanitarian crisis have spilled beyond
its border for years, destabilizing nations far beyond Syria and paving
the way for radicalization. Forces that are hostile to both our
interests and our values are shaping the future on the ground while we
remain silent, focused on the immediate defeat of ISIS.
I want to emphasize, we want to defeat ISIS. We are defeating ISIS,
but that is not our only goal in the Middle East.
On Saturday, the Lebanese Prime Minister, Mr. Hariri, resigned,
claiming that he faced death threats from Iran, leaving the United
States with one less valuable partner in a divided government in which
Hezbollah plays a major role. I happen to have become friends with Mr.
Hariri over the years. He is a good, pro-democratic, outstanding
individual who basically was forced out of office.
A web of Iranian proxies and allies are spreading from the Levant to
the Arabian Peninsula, threatening stability, freedom of navigation,
and the
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territory of our partners and allies, including with advanced
conventional weapons. Iran itself continues to menace its neighbors,
use its sanctions relief windfall to harmful ends, test ballistic
missiles, and spread weapons throughout the region.
According to our allies and partners, just days ago, Houthi rebels in
Yemen launched an Iranian-provided missile at the airport in Riyadh.
Meanwhile, our Arab allies are embroiled in infighting and diplomatic
disputes that weaken regional cooperation and coalition efforts in the
face of these pressing threats.
Saudi Arabia itself is in the midst of monumental change. The recent
appointment of a new Crown Prince, the arrest over the weekend of a
number of prominent Saudi citizens, and the Kingdom's ongoing war in
Yemen, which has spawned a humanitarian crisis of its own, indicate a
forcefulness that promises progress but also raises concern about
internal stability and regional conflict. Ultimately, it could serve to
strengthen Saudi rivals.
In Turkey, President Erdogan continues to consolidate power, abuse
human rights and the rule of law, and stifle democracy, while growing
closer to Russia and straining the relationship with NATO. Meanwhile,
Vladimir Putin's Russia casts a long shadow throughout the region as it
reestablishes itself as a power broker hostile to American interests
and wholly unconcerned about human rights.
These challenges are daunting, confusing, and complex, borne of years
of neglect, punctuated by crises and aggravated by weeks filled with
the events of decades.
The questions a comprehensive strategy must address are formidable:
What are our political and military objectives in the region? How
should we prioritize our pursuit of objectives given the numerous
regional challenges, and how should we measure our success? What roles
and responsibilities should our allies and partners play, and what
support will they need to do so? What should be the size, roles,
missions, and capabilities of U.S. forces in the region, whether in
Iraq, Turkey, the Persian Gulf, or elsewhere? How will the United
States facilitate humanitarian relief, stabilization, reconstruction,
and political reconciliation where possible?
These questions--many of which we require the President and
Department of Defense to answer in the National Defense Authorization
Act--are not academic.
The United States is not involved in the Middle East because we labor
under the illusion that our presence will solve every problem but
because the stability of the region is vital to our national interests
and international security alike. Middle Eastern instability tends to
travel far beyond its borders. The region's importance to the global
economy that Americans benefit from and depend upon cannot be
underestimated, but if we keep sleepwalking on our current trajectory,
we could wake up in the near future and find that American influence
has been pushed out of one of the most important parts of the world,
and that we cannot abide.
The world faces an unprecedented array of challenges, of which
instability in the Middle East is only one. Most importantly, the
United States faces growing threats from Russia and China, both of
which are eager to tilt the balance of power in Europe and Asia toward
them rather than toward us and the majority of the world that favors
greater freedom and openness.
We need to prioritize these critical challenges by rebuilding
military readiness, reorienting our force structure, investing in
needed capabilities to deter near-peer competitors, and strengthening
our alliances with like-minded partners and allies.
If we neglect to consolidate our gains against ISIS and address the
threats to American interests throughout the Middle East, our gains
will easily be overtaken. As my friend and former Secretary of State
George Schultz once observed, ``If you have a garden and want to see it
flourish, you have to tend to it.'' We could find ourselves enmeshed in
conflicts far more costly in lives, power, and opportunity if we
neglect to care for a particularly frustrating part of the world.
Our elected leaders must articulate a comprehensive strategy that
reflects these judgments with specificity and detail rather than
piecemeal offerings and tactical victories. Congress, with our
constitutional role as a coequal branch of government, and, more
importantly, the American people, deserve no less.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. GRASSLEY. Mr. President, today the Senate will confirm Steven
Engel to serve as Assistant Attorney General for the Office of Legal
Counsel.
The Office of Legal Counsel, which we refer to as the OLC in the
Judiciary Committee, functions as legal advisor to the President and
executive branch agencies, providing advice on complex questions of
constitutional and statutory interpretation. The OLC essentially serves
as the general counsel to the executive branch.
Mr. Engel is well equipped to lead that office, both from the
standpoint of academics and from the standpoint of background. Mr.
Engel received his undergraduate degree from Harvard, his master's of
philosophy from Cambridge University, and his law degree from Yale Law
School.
Following his graduation, Mr. Engel clerked for Judge Kozinski of the
Ninth Circuit Court of Appeals and for Justice Kennedy on the Supreme
Court. Mr. Engel joined the law firm of Kirkland & Ellis after clerking
for Justice Kennedy. Mr. Engel's practice focused on appellate and
commercial litigation matters.
In 2006, Mr. Engel joined the OLC as counsel to the Assistant
Attorney General at that time and was later promoted to Deputy
Assistant Attorney General. There he provided legal advice to the
Attorney General, to the White House counsel, and other executive
branch clients on a variety of legal matters.
In 2009, Mr. Engel joined the law firm of Dechert as a partner in the
white collar and securities litigation group and later in that same
firm as a member of the complex commercial litigation group.
Mr. Engel's nomination has broad support across the legal community.
The Senate Judiciary Committee received a number of letters in support
of his nomination. One such letter is signed by former Attorneys
General Mukasey and Gonzales, as well as former Deputy Attorneys
General Filip, Morford, and McNulty. Other letters of support were
received from his coclerks on the Supreme Court, a group of Mr. Engel's
former colleagues, Yale Law School classmates, and Harvard Law
Professor Jack Goldsmith. Mr. Engel also received an endorsement from
the Patrolmen's Benevolent Association of the city of New York, which
is the largest police union in New York City.
Another letter from former senior government officials and legal
officers of the executive branch, including Kenneth Wainstein and
Michael Hayden, noted their ``enthusiastic support'' for Mr. Engel's
nomination. Wainstein and Hayden wrote: ``We are confident that as head
of OLC, Steve will render legal opinions with the highest level of
professional integrity and according to his best understanding of what
the law and the Constitution require.''
Mr. Engel and I met this summer, and we discussed the importance of
congressional oversight and the essential role played by Members of
this body and the House of Representatives. He assured me that he
agreed that each Member, whether or not a chairman of a committee, is a
constitutional officer entitled to the respect and best efforts of the
executive branch to respond to his or her requests for information.
Further, he committed to review the May 1, 2017, OLC opinion on this
very issue and to consider whether a more complete analysis of the
issue is necessary.
You may remember that my interest in this whole thing goes back to
early in this new administration, when people working for the President
and presumably speaking for the President said that the only oversight
letters that would be responded to would be those from chairmen of
committees. Now, you can imagine that leaves out
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at least 30-some Republicans that would never get answers to their
oversight letters, and it would leave out 48 Democrats that would never
get answers to their letters. Consequently, most of Congress would not
be able to do their constitutional role of oversight, making sure that
the executive branch is in enforcing the laws and spending the money
according to what we require. So I raised that issue through a 7-page
letter to the White House, and they came and visited with me about it.
I think they had some misunderstanding of what oversight was all
about. They wrote a letter that said they are going to respond to every
Member of Congress on oversight issues, which satisfies me from the
standpoint of their intent.
As I just said in my remarks here, Mr. Engel committed to review that
May 1, 2017, OLC opinion on this issue and to consider whether a more
complete analysis of the issue is necessary because every Member of
Congress should be able to do oversight, and every Member of Congress
ought to expect an answer to their letters from the executive branch of
the government, whether they are a chairman or not, whether they are a
Republican or not, whether they are a Member of the House or a Member
of the Senate. I want to make sure that we follow through on this,
although I will give this administration credit for almost totally
reversing an opinion that they issued way back in May.
The head of OLC is a highly important role at the Department of
Justice, and it is a role whose importance is felt throughout the
Federal Government. Just to show you how it is felt throughout the
entire government, let me tell you that they issued an opinion in the
previous administration on something to do with the work of inspectors
general throughout the government, previously, or maybe originally,
intended to say what the inspectors general could demand or not demand.
We understand that the law passed in 1979 says that an inspector
general can be entitled to any information he wants from that
department, but they issued an opinion--the OLC person at that time--
along the lines of, well, there are some areas that maybe the head of
the agency has to review, which means that the 1979 law isn't being
carried out in the spirit. That is kind of an example because that
opinion from the Justice Department was used by general counsels
throughout the administration of Obama to keep Congress from doing its
oversight work. That is how important the person who is the head of the
Office of Legal Counsel is in determining what goes on in the executive
branch of government--enough to stifle the oversight work of the
Congress of the United States or the work of the inspectors general of
each department.
So I see Mr. Engel as a person who is going to be a friend of
congressional oversight and, if he isn't, I am going to be very, very
disappointed. He has satisfied me through his testimony before our
committee and through the promises he made in letters to me and in the
privacy of my office that he is going to do that. So we are ending up
with a Mr. Engel who is, as you can see, very well qualified to take on
such a role as Assistant Attorney General of the Office of Legal
Counsel.
I urge my colleagues to support Mr. Engel's nomination and confirm
him to this important position.
I yield the floor.
Mr. DURBIN. Mr. President, I rise in opposition to the nomination of
Steven Engel to head the Justice Department's Office of Legal Counsel.
On many occasions, President Donald Trump has made clear that he does
not appropriately respect the rule of law in America. We have seen this
many times over the last few years, from his bigoted and disdainful
comments about Federal judges, to his firing of FBI Director Comey
because of what the President called ``this Russia thing,'' to his
shameful pardon of Joe Arpaio, a man convicted of criminal contempt for
refusing to stop violating the Constitution, to his efforts last week
to badger the FBI and Federal prosecutors into doing his bidding.
As Republican Senator Bob Corker said last Friday:
President Trump's pressuring of the Justice Department and
FBI to pursue cases against his adversaries and calling for
punishment before trials take place are totally inappropriate
and not only undermine our justice system but erode the
American people's confidence in our institutions.
If my Republican colleagues want to restore confidence in our
institutions of justice, they can start by making sure that only
someone truly independent of Donald Trump serves in the vital position
of Assistant Attorney General for the Office of Legal Counsel.
The Office of Legal Counsel, or OLC, is not well known, but it is a
critical part of the Federal government. OLC exercises statutory
authority to provide legal advice that is binding on the executive
branch. In addition to giving legal advice to the President and
executive branch officials, OLC reviews all proposed Executive orders
and Attorney General orders for form and legality. Essentially, OLC
serves as a check to make sure that the President and his
administration are faithfully executing the laws.
There have been shameful moments in our history when OLC's leaders
have lacked the independence and judgment to stand up for the rule of
law. For example, in 2002, under Assistant Attorney General Jay Bybee,
OLC produced the infamous torture memo that approved the CIA's use of
torture techniques like waterboarding. When this memo became public in
2004, the Justice Department was forced to withdraw it. Jack Goldsmith,
a prominent conservative legal scholar who was acting head of OLC at
the time said he was ``astonished'' by the memo's ``deeply flawed'' and
``sloppily reasoned'' legal analysis.
Then, in May 2005, OLC had a new leader--Steven Bradbury--and he
secretly issued three new torture memos approving the use of
waterboarding and other abusive interrogation techniques. Then-Deputy
Attorney General Jim Comey strongly objected, saying the United States
would be ashamed when the memos came to light, but Attorney General
Alberto Gonzales overruled him.
Already, we have seen troubling signs at OLC under President Trump.
In January, OLC signed off on President Trump's travel ban Executive
order, a decision that was kept secret from then-acting Attorney
General Sally Yates. According to Ms. Yates, this was the first time
ever that OLC hid its actions from the Attorney General, which it did
even though OLC reports to the Attorney General. This Executive order
was blocked by multiple Federal courts before it was withdrawn. OLC
issued an opinion on Inauguration Day to allow President Trump to
employ family members in the White House. This was a reversal of OLC's
longstanding position on antinepotism laws.
OLC is likely to face many critical legal issues in the coming months
and years. We need OLC to serve as an independent check on this
administration, especially since President Trump has shown an eagerness
to denigrate the justice system and to criticize those whose views on
the law differ from his own. Unfortunately, Steven Engel, the
President's nominee to head OLC, has not demonstrated the independence
and judgment that our country needs for this vital position.
Mr. Engel has been a law firm partner since 2009. Previously, he
worked at OLC under President George W. Bush from 2006 to 2009, rising
to the level of Deputy Assistant Attorney General. Mr. Engel admitted
that, while he was at OLC, he ``reviewed and commented upon'' a July
2007 memo to the CIA Acting General Counsel which concluded that six
CIA enhanced interrogation techniques were legal. These techniques
included, for example, extended sleep deprivation by shackling
detainees in a standing position while wearing a diaper for days at a
time. The OLC opinion said that these techniques did not constitute
cruel, inhuman, or degrading treatment. The Justice Department's Office
of Professional Responsibility concluded that this 2007 memo was
inconsistent with the plain meaning and commonly held understandings of
Common Article 3 of the Geneva Conventions. The OLC opinion was
withdrawn in 2009.
While at OLC, Mr. Engel also helped draft legislation that would
become the Military Commissions Act of 2006. This law included a
provision that suspended habeas corpus rights for Guantanamo Bay
detainees, a provision that the Supreme Court struck down as
unconstitutional in the Boumediene case.
[[Page S7041]]
Additionally, Mr. Engel worked on President Trump's transition and
Justice Department landing team, but, he would not tell the Judiciary
Committee what matters he worked on, which is troubling.
I asked Mr. Engel to provide reassurance that, if he is confirmed,
OLC will operate independently from President Trump. His response? He
said he was deeply committed to the independence of OLC and said, ``I
demonstrated that commitment in my prior service in the Office, as well
as in my activities in private practice and my volunteer work for the
Trump transition team.'' It is hard for me to understand how Mr.
Engel's work for the Trump transition--work that he would not even
discuss with the committee--is supposed to reassure us about his
independence from President Trump. To the contrary, I fear that by
refusing to discuss his transition work, Mr. Engel has already started
covering for Mr. Trump.
Perhaps the most telling response Mr. Engel provided when it comes to
demonstrating independence from President Trump is this. I asked him
this question in writing:
According to news reports, in a January 27th dinner,
President Trump asked then-FBI Director James Comey if Comey
would pledge his loyalty to President Trump. Do you believe
it is appropriate for a President to ask a Director of the
FBI to pledge loyalty to the President?
His response? ``I do not have any knowledge concerning the
communications between President Trump and former FBI Director Comey.''
This is not a hard question. I wasn't asking Mr. Engel about the
specific conversation between President Trump and the FBI Director.
Here is the easy answer that he should have given: It is wrong and
unethical for a President to ask an FBI Director--or any Justice
Department or FBI official--to make a personal loyalty pledge. If Mr.
Engel can't get the easy questions right, what will he say when
challenging questions come before OLC?
For example, what if President Trump asks OLC to revise the 1974 OLC
memo concluding that a President cannot pardon himself? Would Mr. Engel
cave to the President's whims? Or what if President Trump asks OLC to
justify some pretext for the firing of Special Counsel Mueller? Are my
Republican colleagues confident that Mr. Engel would stand strong?
Here is the bottom line. Many of my Republican colleagues talk and
tweet about their concerns when President Trump disrespects the rule of
law, but talk and tweets are cheap. If they are truly concerned about
President Trump's actions, they need to vote in a way that serves as a
meaningful check on President Trump. Our Nation needs the Office of
Legal Counsel to serve as a check on the President's worst impulses. We
need them to stand strong when the President berates the Justice
Department and urges it to ignore legal norms and processes.
I am concerned that Mr. Engel has not demonstrated the independence
and judgment we need from the head of this critical office. Therefore,
I cannot support his nomination.
The PRESIDING OFFICER. The Senator from South Dakota.