[Congressional Record (Bound Edition), Volume 153 (2007), Part 15]
[Senate]
[Pages 20350-20351]
[From the U.S. Government Publishing Office, www.gpo.gov]




                       ATTORNEY GENERAL GONZALES

  Mr. WHITEHOUSE. Mr. President, yesterday, as you will recall, in the 
Senate Judiciary Committee, Attorney General Gonzales appeared. I spoke 
with him about a seemingly simple concept, the impartial administration 
of justice.
  But, as is so often the case with this administration and with this 
Attorney General, the simple is often confused, and what should be 
impartial is often tainted with politics.
  I asked the Attorney General about the administration's policy 
regarding communications between staff at the Department of Justice and 
at the White House, about ongoing investigations and cases. This kind 
of conversation, of course, should be very limited in scope. Until 
recently, it was.
  Attorney General Janet Reno wrote, in a 1994 letter to White House 
Counsel Lloyd Cutler:

       Initial communications between the White House and the 
     Justice Department regarding any pending Department 
     investigation or criminal or civil case should involve only 
     the White House Counsel or Deputy Counsel (or President or 
     Vice President), and the Attorney General or Deputy or 
     Associate Attorney General.

  That is seven people, total. Four in the White House, three in the 
Department of Justice.
  As I pointed out to the Attorney General, this administration has 
dramatically expanded this policy to allow literally hundreds of people 
at the White House to discuss sensitive case-specific information with 
dozens of people at the Department of Justice. Even worse, a further 
revision to this policy signed by Attorney General Gonzales 
specifically added the Vice Presidents's Chief of Staff and the Vice 
President's Counsel, David Addington, to the list of those empowered to 
have these conversations. Karl Rove, by the way, is also on the list.
  Why in the world would it be appropriate to give the Vice President's 
staff a green light to muck around in sensitive Department of Justice 
affairs? Based on my experience as a U.S. attorney, I can think of no 
reason.
  So why did the Attorney General himself issue a memo specifically 
authorizing that? Well, the Attorney General himself seemed to have no 
idea. When I asked him about it yesterday, he said:

       As a general matter, I would say that that's a good 
     question. I'd have to go back and look at this. On it's face, 
     I must say, sitting here, I am troubled by this.

  Well, Mr. Gonzales, I am troubled by this too. Troubled but, 
unfortunately, not surprised.
  Not surprised because this administration has, at almost every turn, 
done everything possible to enhance the power of the President and the 
Vice President to dismiss Congress's essential constitutional oversight 
responsibilities, to disrupt the balance of power crafted by our 
forefathers and to thwart those who would stand up and say: Enough is 
enough.
  But now a chorus of Senators is finally saying: Enough is enough.
  When I ran for the Senate, I spoke often about the need for a check 
on the Bush administration's relentless abuse of power. Now, after 
having served in this great institution for only 6\1/2\ months, I feel 
more strongly than ever that it is vital for our Democratic majority to 
serve as an essential bulwark against an imperial executive branch.
  Without 60 votes, we cannot get things done over objection from the 
other side as often as we would like. But with a majority, we can at 
least stop some of the mischief. We can stop them from politicizing 
everything from Government-funded scientific research to U.S. 
attorney's offices, Government functions that have historically 
operated entirely free of partisan influence.
  We can spotlight their efforts to undo our system of checks and 
balances, their penchant for unneeded secrecy, and often, disregard for 
the law and our American principles.
  We can call them out when they use national security as a shield 
against legitimate oversight and as a weapon against political 
adversaries, against attempts to conduct Government in secret and in 
darkness and sometimes in defiance of the law.

[[Page 20351]]

  In the process, the administration has done grave damage to the 
principles and values that have made this country an example for the 
world. The writ of habeas corpus? Adherence to the Geneva Conventions? 
The independence of Federal prosecutors? The principle of judicial 
review? The notion that a citizen in a democracy has a right to know 
what their Government is doing in his name?
  Each of these, in ways great and small, has been eroded by this 
administration. Then, when you think they cannot possibly push the 
envelope any further, they do. I am referring to two recent episodes: 
First, the Vice President's now infamous and incredible assertion that 
his office is exempt from an Executive order designed to protect 
classified information because it is not, get this, it is not an entity 
within the executive branch, and the Attorney General's apparent 
complicity with this theory.
  Executive Order No. 12958, as amended by President Bush, regulates 
the classification, safeguarding, and declassification of national 
security information. It also requires the National Archives' 
Information Security Oversight Office to, among other things, conduct 
onsite inspection of Federal agencies and White House offices to ensure 
compliance with these important regulations.
  Despite cooperating with the National Archives in 2001 and 2002, in 
2003, the Vice President abruptly decided he was above complying with 
an Executive order, even one signed by President Bush.
  Repeated attempts by the National Archives to secure the Vice 
President's cooperation or at least an explanation for noncompliance 
were met with silence and then, apparently, an effort to abolish the 
office that had dared try to enforce the law.
  In the meantime, in January 2007, the National Archives referred the 
question to the Department of Justice for clarification, as to whether 
the Vice President is an executive branch entity required to comply 
with an Executive order. You might think that in 6 months the 
Department of Justice would produce a memo stating the Vice President 
must comply with Executive orders and that he is, in fact, as we all 
know, in the executive branch.
  Well, you would be wrong. The Vice President makes an argument that 
would flunk an elementary school civics test so he may circumvent 
safeguards on national security information. The Attorney General goes 
along with this by refusing even to respond to a letter seeking 
clarification of the law, which is a core function of the Department of 
Justice Office of Legal Counsel.
  What is going on here? Second, in this ignominious list is the 
President's personal intervention to deny security clearances to 
investigators from the Justice Department's Office of Professional 
Responsibility, or as we call it, OPR, who were looking into the 
administration's warrantless domestic surveillance program.
  This is the first time ever an OPR investigator was denied necessary 
clearances to conduct their investigation. Of course, the denial of 
security clearances had the intended effect: The investigation by OPR 
was shut down.
  Now, as we all know, the distinguished chairman of the Senate 
Judiciary Committee, Senator Leahy, has been forced to issue subpoenas 
to the White House, the Office of the Vice President, the Department of 
Justice, and the National Security Council, in order to obtain 
information Congress has sought for months related to the 
administration's legal justification for the warrantless wiretapping 
program.
  If the White House's refusal to honor earlier congressional subpoenas 
and turn over information on the U.S. attorney firings is any 
indication of things to come, we can expect more stalling and more 
stonewalling by this administration as Congress seeks to learn the 
truth.
  Again, what is going on here? What is going on, I believe, is a 
systematic effort on the part of the Bush administration, to twist, to 
partisan and political advantage, threats to our national security as 
justification for conducting Government in secret and in darkness, 
shadowed from congressional oversight and far from the light of public 
scrutiny.
  If this requires making preposterous arguments, such as the Vice 
President's, in their view, that is fine. If this requires taking 
unprecedented action to deny clearance to Government investigators, 
fine by them. If this requires dispensing with many years of tradition 
and practice, distorting the plain language of Executive orders and 
abdicating the Department of Justice's watchdog role, again, fine with 
them. If this requires attempts to a evade even a congressional 
subpoena, well, that is apparently fine too.
  I will end where I began, with the issue of communications regarding 
ongoing cases and investigations between the White House and the 
Department of Justice. As Mr. Gonzales acknowledged yesterday, the 
greatest danger of infection of the Department of Justice with improper 
political influence comes from the White House.
  Along with Chairman Leahy, I have introduced a bill to set the Reno-
Cutler policy for White House contacts as a baseline and to require the 
Department of Justice and the White House to report to Congress any 
time they authorize someone else to have these sensitive discussions.
  It is my sincere hope this bill will have bipartisan support. But 
this bill is only one small part of a larger effort to restore checks 
and balances to our Government. We must and we will continue this 
effort, challenging the administration to work for the Democratic 
Congress, to stop playing politics with national security, and to end 
the secrecy and abuse of power that have become the hallmark of the 
Bush era.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DURBIN. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. I ask unanimous consent to speak as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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