[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

[[Page S7039]]

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

[[Page S7040]]

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.