[Congressional Record (Bound Edition), Volume 157 (2011), Part 5]
[Senate]
[Pages 6826-6831]
[From the U.S. Government Publishing Office, www.gpo.gov]




                            COLE NOMINATION

  Mr. SESSIONS. Mr. President, I want to speak in opposition to the 
nomination of James Cole to be Deputy Attorney General of the United 
States, on whom we will be voting a little later this afternoon.
  Despite President Obama's recess appointment of Mr. Cole, who has had 
significant opposition in the committee, and was not looking at smooth 
sailing--I do believe we should oppose his confirmation and his 
permanent appointment based on some concerns I have with his record, 
specifically his criminal justice view on the war on terror, which I 
believe is utterly wrong, and his questionable decisions as an outside 
consultant for AIG, the big insurance company that had to be bailed out 
to the tune of, I think, $170 billion.
  He was an independent consultant, supposed to be monitoring that 
company for other errors they had made previously. So that is a concern 
to me.
  I served 15 years in the Department of Justice--as the U.S. attorney 
for almost 12, and as an assistant U.S. attorney. I respect the 
Department. I love the Department of Justice, but I am getting 
concerned about it. I am not happy with some of the decisions and 
philosophies that are emanating from the Department. I believe they do 
not reflect the highest standards and qualities that we expect from 
that great Department.
  This nominee has a lot of good qualities. I believe he has a number 
of strengths that--has management and some experience in the Department 
for which I would give him credit. But at this point in history, I 
believe his approach, particularly to the war on terror, along with the 
Attorney General's approach to the war on terror are not good. I have 
just about had enough of them.
  I am just going to say this: I am not voting for another nominee--I 
am not going to vote for this one--who spent their time defending 
terrorists before they went to the Department. It is all right to 
defend an unpopular person, but 13 to 16 members of the Department of 
Justice, political appointees by this administration, have had as their 
background defending terrorists, including the Solicitor General 
nominee who is going to be coming up in committee this week, and also 
working for or representing the ACLU.
  So when we get this much of a tilt in the leadership of the 
Department, it gives me great concern that the great Department I love 
and respect is getting off base. So I think it is important to note 
that right now one of the top priorities at the Department of Justice 
must be the recent warnings we received that the terrorist groups 
``almost certainly'' will try to avenge the death of Osama bin Laden, 
and the continuing economic crisis that faces our country.
  So I believe the President should be nominating proven prosecutors--
prosecutors of terrorists, frankly--for top positions in the law 
enforcement agency, the U.S. Department of Justice. I do not think we 
need any more terrorist defense attorneys. When I was the U.S. attorney 
I hired a lot of assistant U.S. attorneys. I looked for proven 
prosecutors wherever I could find them. I did not go around to look for 
people who spent their spare time volunteering to defend terrorists or 
writing papers defending criminals. That is just the way I see it, 
frankly. I have to be honest about it.
  So we have had this one, we have had that one, we have had another 
one, and another and another. Now we have 13 to 16 who have been 
appointed to the Department of Justice who have had this background.
  Defending the unpopular is not disqualifying. We voted, and I voted, 
for a number of people in the Department who have been involved in 
these kinds of defense efforts, who filed lawsuits against President 
Bush. They thought they were doing something great. I guess they did 
not turn down the evidence if it helped in any way lead to the location 
of Osama bin Laden.
  We do have standards about how we should gather evidence, and lines 
should not be crossed. But that does not mean we are not in a war. It 
does not mean the people who are attacking us are common criminals who 
need to be tried in civilian courts. They are at war with us. Bin Laden 
said he is at war with us. He declared war on us. You do not treat 
prisoners of wars, captured enemy combatants, like you treat common 
criminals. This is fundamental.
  I served in the Army Reserve a number of years, some of that time as 
a JAG officer. I taught courses on prisoners of war and how to treat 
prisoners and the standards of the field manual. I do not claim to be a 
great expert at it, but I did it. I had some experience in it.
  Mr. Cole consistently--and some of these nominees to the Department--
takes the view that terrorists are criminals and not unlawful 
combatants. Let me just say briefly, if a person is caught--a murderer, 
a rapist, or

[[Page 6827]]

virtually any kind of criminal--when they are taken into custody, as 
the Presiding Officer knows, who was a good prosecutor himself, they 
have to be--before you can interview them, once they are in custody you 
have to give them Miranda warnings. That authorizes and tells them--
basically tells them: You did not have to make any statements at all. 
It basically says: If you are an idiot, you will make statements. You 
are entitled to a lawyer. If you do not have any money, we will appoint 
you a lawyer. You have to go before a magistrate within a matter of 
hours. You are entitled to discovery of the government's case in short 
order, and you are entitled to a speedy trial. You are entitled to 
prowl around in the government's case and find all of the evidence the 
government has.
  In war, that is not so. A classic case was Ex parte Quirin in World 
War II when German saboteurs were dropped off on our coast from a 
submarine. They were going to sabotage the United States of America. 
They were apprehended, taken to military tribunals, tried, and most of 
them were executed in a matter of months. The case went to the Supreme 
Court, Ex parte Quirin, and was affirmed.
  There has never been any doubt that unlawful combatants can be tried 
for their crimes in military courts. It is done all over the world. It 
is an established principle.
  Now, let's get one thing straight. If you are a lawful combatant, and 
you are captured on the battlefield--whether you are a Japanese soldier 
or German soldier or Italian soldier--and you comply with the laws of 
war and you wear your uniform and you do not attack deliberately men, 
women, and children, civilians, and try to kill them, and you comply 
with other rules of war, you cannot be tried. You can just be detained 
until the war is over, but you do not get lawyers. You do not get 
trials and discovery and all of that sort of thing. But if in 
conducting your military campaign you violate the internally respected 
laws of war, you cannot only be held as a prisoner of war, but the 
nation that is holding you can try you for violations of the laws of 
war.
  So that is how these 9/11 attackers who did not wear uniforms, who 
attacked deliberately civilians, are perfectly fit to be tried as war 
criminals or unlawful combatants. They have announced their intention 
to destroy the United States, to attack the United States. They have 
said they are at war with us. But they have done it in an unlawful way, 
and they can be tried in military commissions. This allows the military 
to conduct interrogations according to the laws of war over a period of 
months, years even. Sometimes after months a prisoner will start to 
talk. You never know why they start talking.
  But to deny ourselves the right to allow those kinds of things to 
happen, to say we have to try these individuals, such as Khalid Sheikh 
Mohammed, in civilian courts is clearly in error. But that is the 
Attorney General's position. I asked him about it last week when he 
testified before the Judiciary Committee. He said: It still remains the 
policy of the Department of Justice that persons who are arrested as 
terrorists are presumed to be tried in civilian court, although 
Congress has passed a law prohibiting moneys to be expended for that, 
on the 9/11 attackers. The Attorney General is in a huff and said 
Khalid Sheikh Mohammed will be tried in Guantanamo under military 
procedures as an unlawful combatant, but he does not like it. That is 
not his view. It looks like everybody he wants to hire to be in the 
Department of Justice agrees with that erroneous view.
  It is not a close question. This is not a close question. There is no 
reason a terrorist who is apprehended in the United States ought to be 
provided lawyers and Miranda warnings. They are combatants. They are 
not common criminals. Thinking this way has caused dangerous confusion.
  As our troops and intelligence community continue to work night and 
day to keep our country safe, it is imperative that we view the war on 
terror as a real war and not a criminal matter and regard those who 
wish to perpetrate terror on this country as enemy combatants, not 
plain criminals. Like many in the administration, Mr. Cole disagrees.
  In 2002, not long after the 9/11 attacks, he wrote an op-ed and 
published it criticizing then-Attorney General John Ashcroft's decision 
to try the 9/11 terrorists in military commissions. They researched the 
law. Attorney General Ashcroft knew what he was doing. They decided 
they were going to try these individuals by military commissions. He 
had written an op-ed attacking the Attorney General for it.
  So now that is the man we have as the nominee for the Deputy Attorney 
General of the United States. At his hearing last Congress, Mr. Cole 
repeated the prevailing and confusing Justice Department position that 
decisions regarding whether captured terrorists should be tried in 
civilian courts or before military commissions ``should be made on a 
case-by-case basis based on all of the relevant facts and circumstances 
available at the time of a suspect's capture.'' Is this going to happen 
in Yemen, Afghanistan, Pakistan, wherever else they may be in the 
United States is not a practical policy because we have to tell the 
individuals who are making those captures what the rules are. As the 
Attorney General said, they still adhere to the view that the 
presumption is, the individual will be tried in civilian court. 
Therefore, the presumption is, within a short time of their being taken 
into custody, they should be given Miranda warnings, offered a lawyer, 
and set for a preliminary court appearance, which could reveal to all 
the other terrorists that their partner in war has been captured and 
allow them to escape.
  It is a wrong view, and why they persist in this is beyond my 
understanding. Congress understands it and the American people do also.
  This administration has established a policy that declares there is a 
presumption of civilian trials and has failed to articulate a clear 
policy for designating captured terrorists as enemy combatants or 
criminal defendants. So I remain very unconvinced that the next 
captured terror suspect will not be given the rights of a common 
criminal and told he has the right to remain silent to the detriment of 
crucial intelligence gathering. One of the most significant findings of 
the 9/11 Commission was that intelligence gathering, intelligence 
possession about what the enemy is doing is the best way to protect our 
country, not prosecuting them after the fact. So telling someone they 
have the right to remain silent and they have a lawyer who is going to 
insist that they not make any statements, does that help us gather 
intelligence? If it is required by the U.S. Constitution, we will do 
it. We will just plain do it, regardless, but it is not required by 
law, history or the Constitution. Law, history, and the Constitution 
allow these enemy combatants to be tried in military commissions and 
they don't have to be given Miranda warnings, which was a court-created 
rule a number of years ago that never was understood before and is not 
practiced, to my knowledge, in any other Nation in the whole world. Of 
course, all this provides poor guidance for our law enforcement, 
military, and intelligence officers as they go about their efforts, and 
it is a grievous and dangerous mistake to continue this policy.
  It seems to me that Mr. Cole and Attorney General Holder are cut from 
the same cloth on this issue. I am uneasy about these two individuals 
holding the top two positions in the Department of Justice. Now the 
Solicitor General nominee seems to hold similar views and, if 
confirmed, he will be one of the highest ranking people in the 
Department. Their policy views appear to control the Department of 
Defense. In other words, if they say this is the rule, the Department 
of Defense has to give the Miranda warnings and so forth if they are 
involved in a capture, and it directly controls the FBI, which is part 
of the Department of Justice.
  As the acting second in command at the Justice Department, Mr. Cole 
would play a lead role in decisionmaking in the terror prosecutions 
throughout the country. The Justice

[[Page 6828]]

Department's continued insistence on a presumption of civilian trials 
for terrorists confirms my concerns that Mr. Cole has adhered to the 
failed pre-9/11 law enforcement approach to terrorists, an approach the 
9/11 Commission and the Nation as a whole recognized was in error and 
should be changed. I thought we had clearly made that move. Apparently, 
we haven't.
  Also of concern, from 2003 to 2007, Mr. Cole represented a Saudi 
Prince against insurance carriers and September 11 victims who alleged 
that the Saudi Prince helped finance terrorists. Reportedly, Mr. Cole's 
client was linked through Treasury Department documents to the 
financial support of extremist groups through the Al-Haramain 
Foundation, a Saudi charity that had diverted funds to al-Qaida before 
and after 9/11. While attorneys are free to, and should be free to, 
represent unpopular clients, Mr. Cole is one of a long line of 
political appointees at the Department of Justice who seem to me to be 
questionable choices for key posts at the agency that is charged with 
defending national security, given their choices to represent the very 
individuals and groups whose goal it is to attack this country or kill 
Americans.
  According to press reports, at least 13 to 16 current Obama 
administration political appointees, including the current Solicitor 
General nominee who represented Jose Padilla, previously provided legal 
counsel to suspected or convicted terrorists and enemy combatants being 
held in detention or to leftwing organizations that actively sought to 
reverse Bush administration antiterrorist and detainee policies--
policies, I might add, that were a contributing factor to the 
elimination of bin Laden and many other terrorists throughout this past 
decade. I am curious to know if they have appointed anyone to key 
positions in the Department of Justice who has ever prosecuted a 
terrorist. I would like to know that. Maybe they have. Surely, somebody 
has, but it looks odd to me that so many of those who have been on the 
other side have been given top appointments.
  On another subject, I am very disappointed with this administration's 
abdication of its duty to defend congressionally enacted laws, 
specifically the Defense of Marriage Act. Attorney General Holder has 
stated President Obama had decided he would no longer defend this law, 
after reviewing the Attorney General's recommendation and that the law 
falls under the exception in which ``the Department of Justice cannot 
offer a reasonable argument in defense of the statute's 
constitutionality.''
  Well, it has been defended and upheld by a number of courts. How do 
we waltz in there and decide we are not going to defend a 
congressionally enacted statute signed into law by President Clinton 
because they don't like it? That is how it appears to me. The 
administration apparently came to this conclusion after unilaterally 
deciding that ``classifications based on sexual orientation warrant 
heightened scrutiny''--in the face of precedent from 11 circuit courts 
of appeal holding that such classifications should be reviewed under 
the much lower rational basis standard.
  There is a very big difference between refusing to defend a law the 
administration regards as unconstitutional and refusing to defend a law 
that the administration opposes on the policy grounds.
  The ACTING PRESIDENT pro tempore. The Senator has used 15 minutes.
  Mr. SESSIONS. I ask unanimous consent to speak for 1 additional 
minute.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. SESSIONS. Mr. President, the Department of Justice is a great 
department, and they have some very fine people there. I know Mr. Cole 
has some good qualities. I supported Mr. Holder for Attorney General, 
but I am very uneasy about the direction the Department is taking on a 
large number of issues, and I believe one of the reasons this is 
happening is because they have surrounded themselves with a group of 
leftist lawyers, activist lawyers who don't operate according to the 
more traditional views of law and justice in America. That is my view. 
Other Senators may disagree. That is my view. I am not able to support 
Mr. Cole for that and the reasons I have stated. I hope in the future 
the administration will appoint more nominees that have proven records 
of independence, effective prosecution, and commitment to law.
  I thank the Chair and yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Maryland.
  Mr. CARDIN. Mr. President, I greatly respect my friend from Alabama, 
Senator Sessions, although I come to a different conclusion in regard 
to Jim Cole.
  I have worked with Jim Cole. I was part of a legislative committee in 
the House of Representatives that had to do some very difficult work on 
an ethics issue involving a former Speaker of the House of 
Representatives. It was a tough decision to bring together six Members 
of the House--three Democrats, three Republicans--and do it in a way 
that would maintain the nonpartisan requirements of an ethics 
investigation. The atmosphere was very partisanly charged around the 
work we were doing. I know this sounds familiar. People in Maryland and 
Connecticut and around the Nation understand we are working in a very 
partisan environment, and they expect the people who are charged at the 
Department of Justice to work in a nonpartisan manner.
  This is not a partisan position, the Deputy Attorney General. This is 
a person who is working with the Attorney General, the Nation's lawyer. 
We want somebody who has the experience, someone who has the character 
and commitment to carry out this very important position.
  As I said, I have known Jim Cole. He has 13 years' experience within 
the Department of Justice. He is a public interest attorney. That has 
been the largest part of his professional career, the service of public 
interests. He has always followed policy, not politics. He has a very 
distinguished career in law, and he is the type of person we like to 
see within the Department of Justice.
  As I pointed out, I worked with Jim Cole when I was in the House of 
Representatives. We worked on a very difficult investigation involving 
the former Speaker of the House of Representatives who at the time was 
Speaker. The chairman of the committee was Porter Goss, a Republican 
from Florida. Porter Goss's observations of Jim Cole were that he was a 
brilliant prosecutor, extraordinarily talented. Then Mr. Goss goes on 
to say that over time, he brought our committee to a bipartisan 
cooperation which was desperately needed in order to successfully 
complete that matter. At the end of the day, the six of us came 
together in a unanimous recommendation. That is the type of person Jim 
Cole is. He was professional and put policy ahead of politics.
  Former Senator John Danforth testified at Jim Cole's confirmation 
hearing. John Danforth is a former Republican Member of the Senate. He 
called Jim Cole ``a lawyer's lawyer.''
  Jim Cole has support from Democrats and Republicans. Former high 
officials within the Department of Justice have all recommended him, 
including former Deputy Attorneys General appointed by both Republicans 
and Democrats.
  Let me quote one other person I had hoped would be greatly respected 
on both sides of the aisle; that is, Fred Fielding, the White House 
counsel for former President George W. Bush. He said Mr. Cole 
``combines all the qualities you want in a `citizen public servant'--he 
understands both sides of the street and is smart and tenacious, and is 
a person of unquestioned honor and integrity.''
  That is what Fred Fielding, the former White House counsel to 
President Bush said, about Jim Cole.
  Jim Cole is supported by former RNC officials and DNC officials 
because he is nonpartisan. He is a nonpartisan person who has put 
public interest law as his top priority.
  I was listening to Senator Sessions talk about terrorism. We have had 
a spirited political debate taking place in this country over the best 
way to bring terrorists to justice. Mr. Cole,

[[Page 6829]]

however, will always put principle over politics, and he is committed 
to evaluating each case and matter that comes before him based on the 
facts and the law. That is what you want from the Department of 
Justice. They are the values and the character we want in our Nation's 
Department of Justice, and Jim Cole will bring that to the Department 
of Justice--already brought it to the Department of Justice.
  The bottom line about Mr. Cole's approach on fighting terrorists is 
one I believe we all believe in. We are a nation at war with al-Qaida, 
the Taliban, and their associated forces. We need tough, aggressive, 
and flexible policies that recognize the paramount importance of 
providing the President with the ability to use all of the lawful 
tools--all of the lawful tools--of our national power to protect the 
American people and bring terrorists to justice.
  Jim Cole believes in that. He is committed to working with the 
Congress so we use all available tools. We make the judgment in each 
individual case as to what is the most effective way to bring a 
terrorist or criminal to justice.
  He not only has expertise in handling terrorists and bringing them to 
justice, he has had very important positions in the Department of 
Justice supervising the criminal prosecution of white-collar crimes. He 
understands the full breadth of the Department of Justice and is a very 
valuable player in making sure the Department of Justice follows in the 
fine tradition of that agency.
  I urge my colleagues to vote to move forward. At least vote to allow 
this nomination to get an up-or-down vote. This is a very important 
position: the Deputy Attorney General. We talk about we were sent here 
to Washington to make tough votes. OK. I do not think this is a tough 
vote. I think Jim Cole is the best person for this critically important 
job, and I do not think he is at all a partisan person. I know him 
well. I know him to be a career type individual who is interested in 
doing what is right. But this is not a nominee where you should be 
using a filibuster to prevent an up-or-down vote.
  This is a very important position for our country. For the dignity of 
the Senate and the Department of Justice and the decency of Jim Cole, I 
urge my colleagues to allow us to go forward with an up-or-down vote on 
his confirmation, and I urge my colleagues to support his confirmation 
to be Deputy Attorney General of the United States.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Coons). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. GRASSLEY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GRASSLEY. Mr. President, I know we are in morning business. I ask 
unanimous consent to speak on the nomination of James Cole to be Deputy 
Attorney General.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GRASSLEY. Mr. President, I rise in opposition to the motion to 
invoke cloture on the nomination of James Cole to be the Deputy 
Attorney General at the Department of Justice. I oppose proceeding to a 
vote on the nominee for a number of reasons.
  I have concerns regarding Mr. Cole's qualifications and am troubled 
by President Obama's recess appointment of Mr. Cole to this position. I 
have been consistent in my opposition to recess appointments over the 
years. Whenever the President bypasses the Senate by making recess 
appointments, such nominees will not receive my support. We have a 
process in place for nominations and if the President is not willing to 
work with Senators to clear nominations, the nominee should not get a 
second bite at the apple.
  In addition to my general opposition to recess appointments, I have 
consistently warned this administration that I would not cooperate in 
moving nominees for the Department of Justice, until they cooperated 
with my request for oversight materials. Last month, I went to the 
floor to describe what I have learned in the course of my investigation 
into whistleblower allegations at the Bureau of Alcohol, Tobacco, 
Firearms, and Explosives, ATF. According to whistleblowers, guns found 
at the scene of the murder of Border Patrol Agent Brian Terry had been 
purchased illegally by a known straw buyer a year earlier, with the 
blessing of the ATF as part of an operation known as Fast and Furious.
  I first asked about this issue on January 27. On February 16, I 
requested specific documents from the Justice Department. I reiterated 
that request on March 3.
  When the Justice Department failed to produce any responsive 
documents, I partnered with House Oversight and Government Reform 
Chairman Darrell Issa, who first requested documents and then issued a 
subpoena to the ATF after his voluntary request was ignored. On April 
13, my staff learned that the Justice Department was making certain 
documents available for Chairman Issa's staff to review at the 
Department. Not only did the Department fail to notify me of this 
document review, when I sent two of my staff members to participate, 
they were turned away at the door of the Justice Department.
  To this day, the Justice Department has still not produced a single 
page of documents in response to my inquiries and has provided only 
previously released public documents in response to Chairman Issa. I 
received a letter on May 2, 2011, declining to provide my staff with 
access to the documents on the grounds that ``the Executive Branch . . 
. has taken the position that only a chairman can speak for a committee 
in conducting oversight work.'' According to the DC Circuit Court of 
Appeals, however:

       It would be an inappropriate intrusion into the legislative 
     sphere for the courts to decide without congressional 
     direction that, for example, only the chairman of a committee 
     shall be regarded as the official voice of the Congress for 
     purposes of receiving such information, as distinguished from 
     its ranking minority member, other committee members, or 
     other members of the Congress. Each of them participates in 
     the law-making process; each has a voice and a vote in that 
     process; and each is entitled to request such information 
     from the executive agencies as will enable him to carry out 
     the responsibilities of a legislator.

  That is from Murphy v. Department of the Army, 1979.
  I said on the floor on April 14 that if the Justice Department did 
not cooperate and provide the information we need, I would consider 
exercising my right to object to unanimous consent requests on a 
nomination. Since that time, I have received nothing but stonewalling 
from the Department. As the chief operating officer of the Department, 
Mr. Cole is in a position to ensure the Justice Department meaningfully 
cooperates with my inquiries and complies with my document requests. He 
has failed to do so.
  I also am troubled by the Department's continued resistance to 
oversight requests from Senator Chambliss, the vice chairman of the 
Select Committee on Intelligence. Senator Chambliss has requested that 
the Department of Justice share important documents with Congress 
regarding the Guantanamo Bay Detainee Review Task Force. This task 
force reviewed the case files of many detainees that were released or 
transferred from U.S. custody. Unfortunately, we now know that over 25 
percent of those detainees later returned to fight against us or our 
allies.
  These documents are part of a legitimate exercise of our 
constitutional duty to conduct oversight. The Department's repeated 
stonewalling of Senator Chambliss's request should not be rewarded with 
a cloture vote on a controversial nominee.
  The Deputy Attorney General is the second in command at the Justice 
Department and responsible for overseeing the day-to-day operations of 
the Department. Managing this vast bureaucracy is a difficult task that 
requires a serious commitment to protecting our national security, 
enforcing our criminal laws, and safeguarding taxpayer dollars. We need 
a qualified individual to fill this slot, an individual who possesses 
the ability to not

[[Page 6830]]

only provide leadership for the Department but also an individual who 
has the smarts, capability and willingness to manage Department 
programs and root out inefficiencies and abuses in those programs. 
After reviewing all his responses and his hearing testimony, I 
concluded that I could not support Mr. Cole's nomination to be the 
Deputy Attorney General.
  In particular, I am seriously concerned about Mr. Cole's views on 
national security and terrorism. Back in 2002, Mr. Cole was the author 
of an opinion piece in the Legal Times. In that piece, he stated:

       For all the rhetoric about war, the Sept. 11 attacks were 
     criminal acts of terrorism against a civilian population, 
     much like the terrorist acts of Timothy McVeigh in blowing up 
     the Federal building in Oklahoma City, or of Omar Abdel-
     Rahman in the first effort to blow up the World Trade Center. 
     The criminals responsible for these horrible acts were 
     successfully tried and convicted under our criminal justice 
     system, without the need for special procedures that altered 
     traditional due process rights.

  He added that, ``The acts of Sept. 11 were horrible, but so are . . . 
other things.'' The other things he referred to were the drug trade, 
organized crime, rape, child abuse and murder. Mr. Cole's opinion piece 
argued that notwithstanding the involvement of foreign organizations, 
such as al-Qaida, we have never treated criminal acts influenced by 
foreign nationals or governments as a basis for ``ignoring the core 
constitutional protections ingrained in our criminal justice system.''
  Mr. Cole concludes his opinion piece by arguing that in addition to 
stopping future terrorist attacks, the Attorney General is a criminal 
prosecutor and that he has a special duty to apply constitutional 
protections engrained in our criminal justice system to everyone, 
including terrorists captured on a foreign battlefield.
  Mr. Cole wrote this opinion piece 2 days short of the first 
anniversary of the September 11 attacks. Given the close proximity in 
time to the September 11 attacks, we must understand this opinion piece 
to be Mr. Cole's true beliefs about the application of the civilian 
criminal justice system to terrorism cases, including those who 
masterminded the 9/11 attacks.
  From the opinion piece and his responses to our inquiries, it appears 
that if given a choice of prosecuting high ranking terrorists in 
civilian courts or military commissions, Mr. Cole would likely favor 
civilian courts based upon his longstanding belief in the role the 
Attorney General plays in protecting the principles of the criminal 
justice system. Absent a clear statement from Mr. Cole about what 
factors would warrant selecting a civilian or a military forum, it is 
hard to look at his entire record of past opinions, his testimony, and 
responses to our questions and reach a different conclusion.
  Military tribunals have many advantages to civilian criminal courts 
and are better equipped to deal with dangerous terrorists and 
classified evidence while preserving due process. I am troubled that 
Mr. Cole does not appear to share this belief. Based upon his responses 
and testimony, I have serious concerns about Mr. Cole's support for 
civilian trials for terrorists captured on a foreign battlefield given 
that the Deputy Attorney General oversees the national security branch 
at the Justice Department.
  Second, I have concerns about Mr. Cole's abilities relative to 
oversight of government programs. First, in his responses about 
oversight of DOJ grant programs, Mr. Cole failed to commit to a top to 
bottom review of the programs.
  We have had enough examples of the tremendous inefficiencies, 
duplications, and waste in these programs. I am disappointed that Mr. 
Cole has failed to recognize that there is a need for comprehensive 
review of the Department of Justice's grant program, not only for the 
sake of saving taxpayer dollars but also to ensure that grant 
objectives are being met in the most efficient and effective manner 
possible.
  Third, I do not have confidence regarding Mr. Cole's abilities based 
on his performance as an independent consultant tasked with overseeing 
AIG. By way of background, the Justice Department provided copies of 
the reports Mr. Cole issued when he was overseeing AIG, but they were 
labeled ``committee confidential.'' Consequently, I cannot discuss in a 
specific manner the context of those documents publicly.
  Nevertheless, when taken into context with the public responses 
provided by Mr. Cole to my questions, a troubling picture develops 
about Mr. Cole's performance in his independent consultant 
responsibilities. The responses and reports do not dispel the serious 
questions raised about Mr. Cole's independence and completeness. 
Further, they reveal what appears to be a level of deference to AIG 
management one would not expect to see from someone tasked as an 
``independent'' monitor.
  In order to clarify a number of questions on this matter, Senator 
Coburn and I sent a followup letter seeking additional answers from Mr. 
Cole. Mr. Cole's reply clarified that DOJ, SEC, and the New York State 
Attorney General's office were aware of his practice of seeking input 
from AIG and making modifications to the reports. He indicated that the 
changes AIG made were often factual changes, such as AIG employee 
names, dates of materials, and events. He also indicated that some of 
the changes requested by AIG were included in a section of the report 
entitled ``AIG Response.'' However, he said that ``on a few occasions'' 
AIG would ``suggest a stylistic change of phrasing in the analytical 
section of the report.'' He stated that while he included the edits 
made by AIG, he ``did not believe that a detailed presentation of this 
factual review was necessary to an understanding of each party's 
position.'' As a result, the report did not necessarily show which 
edits AIG made that were incorporated. Instead, he said that those 
changes were available in working papers that were ``available to the 
SEC, the DOJ, the New York Attorney General's Office.'' Unfortunately, 
he added, ``the agencies--which were aware of this practice--did not 
request such documents.''
  While I appreciate Mr. Cole's responses to these clarifying 
questions, they raise concerns about how independent his monitoring 
was, what changes were ultimately requested by AIG, what changes were 
included, and how much the SEC and the DOJ really knew about edits AIG 
was making to the ``independent'' reports.
  Finally, I have serious concerns about Mr. Cole's decision to suspend 
the compliance review at AIG's Financial Products Division following 
the government bailout. In his testimony, Mr. Cole acknowledged that 
following the government bailout of AIG, he scaled back his efforts 
until the future of AIG as a corporation was determined. After Mr. Cole 
suspended his monitoring, AIG restructured its compliance office and 
terminated a number of staff overseeing the company's compliance with 
the Securities and Exchange Commission regulations. Mr. Cole said that 
after it was determined that AIG's Financial Products Division would 
not be dissolved, the compliance and monitoring were ``revived and are 
being reviewed and implemented where applicable.'' Under Mr. Cole's 
watch, AIG not only got $182 billion of taxpayer money, it was able to 
talk the independent consultant--Mr. Cole--out of monitoring what the 
company was doing.
  Based upon these factors, I am concerned about Mr. Cole's ability to 
perform the duties required of Deputy Attorney General. He would be in 
a position to potentially influence future compliance monitors 
appointed under settlements between the Justice Department, the 
Securities and Exchange Commission, and other corporations that have 
violated the law. Independent monitors need to be truly independent and 
completely transparent. They are selected and appointed to ensure that 
the interests of the American people are protected.
  I cannot support the nomination of Mr. Cole to be Deputy Attorney 
General and, therefore, will vote against cloture. I urge all of my 
colleagues to join me in opposing this cloture vote to

[[Page 6831]]

send a message to the Justice Department to stop the stonewalling of 
legitimate oversight inquiries from Members of the Senate.
  I yield the floor.

                          ____________________