[Congressional Record (Bound Edition), Volume 155 (2009), Part 17]
[Senate]
[Pages 22648-22649]
[From the U.S. Government Publishing Office, www.gpo.gov]




                  DEPARTMENT OF JUSTICE INVESTIGATION

  Mr. CHAMBLISS. Mr. President, I rise today to speak in opposition to 
Attorney General Holder's decision to reexamine the judgment by career 
prosecutors at the Department of Justice and initiate a preliminary 
review to determine whether criminal charges should be filed against 
CIA officers who conducted interrogations against hardened al-Qaida 
terrorists.
  At the outset, let me remind everyone that President Obama promised 
the American people he would look forward rather than backward and 
would not seek a criminal investigation for individuals involved in the 
CIA's interrogation and detention program. Notwithstanding this 
promise, he has allowed the Attorney General, a member of his Cabinet 
who answers to him, to rehash old ground despite the fact that career 
prosecutors already have examined the same information and declined to 
prosecute the same individuals for the same actions.
  By allowing this decision to stand, President Obama is failing to 
exercise his duty as Chief Executive and enforcer of the law. Given 
that there are no new facts to justify this action by the Attorney 
General, the President should demand that the legal conclusions 
previously reached by career prosecutors be upheld.
  Just last week, seven former CIA Directors--encompassing all living 
former CIA Directors from both political parties except the two 
presently serving in the Obama administration, current Director Panetta 
and Secretary of Defense Gates--wrote in a letter to President Obama 
that the decision to reexamine these cases ``creates an atmosphere of 
continuous jeopardy for those whose cases the Department of Justice had 
previously declined to prosecute.''
  No facts have changed since then, no new facts have arisen, and in 
light of the previous refusal of the Department of Justice to prosecute 
all but one CIA employee, the CIA has already taken administrative 
action against some of these individuals. Where is the justice for 
these government employees who have been on the front lines in the war 
on terror since the 9/11 attacks and who acted under the legal guidance 
given to them if they are to face potential punishment more than once 
for their actions?
  What is the message we are sending to our intelligence community? 
Reopening these cases is exactly the type of action which creates risk-
averse intelligence agencies and officers. If an intelligence officer 
involved in a clandestine operation today worries that he may be 
prosecuted for it tomorrow, he is not going to think twice about 
conducting the operation. He simply will not do it. Worse yet, if an 
intelligence officer involved in a clandestine operation today worries 
that he may be prosecuted for it tomorrow because of random policy 
changes, it will evoke an even greater subjective risk-adverse 
environment. Creating such an environment where intelligence activities 
today are held hostage to the political decisions of tomorrow is a 
recipe for failure for our intelligence collection efforts.
  As a member of the Senate Select Committee on Intelligence, I 
understand the important role that intelligence plays in our military, 
law enforcement, and intelligence operations. I see firsthand the 
bravery and professionalism exhibited by our intelligence community 
cadre. Partisanship plays no role in their daily operations. They are 
guided not by which political party may obtain their vote on a 
particular day in November but by an overwhelming sense of duty to 
their country. They understand they do not make policy. Yet they are 
out there risking their lives to gather the intelligence necessary for 
policymakers to make an informed decision.
  Similarly, partisanship should play no role in the decisions of the 
administration or Congress when it comes to intelligence gathering. I 
do not want our intelligence community professionals to have to think 
twice about whether to gather certain information that will inform me 
of foreign policy developments because they fear potential prosecution 
at a later date for doing so. These men and women need to know they 
have the freedom to do their jobs within the guidance that is given to 
them at the time, even though that guidance or policy may change down 
the road. They need to know the country they are serving has their 
back. Sadly, that is not the message we are sending. Never before has a 
change in policy brought the threat of potential prosecution for past 
sanctioned actions.
  Some may ask why the Attorney General's decision is so harmful to our 
national security. The answer is simple. Without calculated risk taking 
on the part of our intelligence community, we will lose the fight 
against not only our state adversaries but against terrorists as well. 
This is not a tradeoff I am willing to take. It is not a tradeoff the 
President should be willing to make either, particularly as we continue 
the fight in Afghanistan.
  We need to look no further than the events of the past week, the 
arrests on American soil of three individuals with admitted ties to al-
Qaida who may have been planning attacks against the U.S. homeland, to 
understand that the threats to our country are real and that this 
tradeoff which the administration has sanctioned is a lot closer to 
hitting home.
  Finally, I would point out that the same report--the CIA inspector 
general's report entitled ``Counterterrorism Detention and 
Interrogation Activities (September 2001-October 2003)''--that Attorney 
General Holder claims was his reason for reopening this investigation 
was the same report that prompted the CIA to self-report to the 
Department of Justice in the first place.
  Long before the IG even started his review, the CIA informed the 
Department of Justice that they had recommended an IG investigation 
related to the interrogation program. Once the report was completed, 
the Department of Justice received it and carefully reviewed the facts 
and circumstances described within it. Only after doing so did the 
career attorneys decline to prosecute. Unfortunately, press reports 
from this past weekend indicate that the Attorney General never even 
bothered to read the declination memos prepared by these career public 
servants.
  In recent months, the administration has declassified and released to 
the public this IG report, as well as the legal guidance from the 
Department of Justice. The record is there for the American people to 
review for themselves. I have reviewed all of this information, and I 
am confident that anyone else who does so will reach the same 
conclusion I have; namely, that reopening an investigation is not 
merited.
  Further, it is worth noting that the IG report found that:

       The Agency's detention and interrogation of terrorists has 
     provided intelligence that has enabled identification and 
     apprehension of other terrorists and warned of terrorist 
     plots planned for the United States and around the world.

  Where deviations from the approved procedures and guidance occurred, 
it was an anomaly and was either prosecuted or administratively 
punished by the CIA leadership.
  The issues at the heart of the Attorney General's decision have been 
examined thoroughly, and it is time for

[[Page 22649]]

them to be laid to rest. President Obama and the Attorney General 
should put an end to their unjustified second-guessing of career 
prosecutors. I cannot imagine they would be willing to expose their own 
policy decisions and legal determinations to future politically 
motivated prosecutions. Yet by doing so with their actions against the 
CIA employees, they are setting a dangerous precedent which I believe 
will have a lasting, chilling effect on our intelligence community and 
our national security.
  With that, Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. KAUFMAN. Mr. President, I ask unanimous consent to speak in 
morning business for up to 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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